NSW Parliament Considers Civil Liability Bill to Improve Access to Justice for Child Abuse Survivors

Tuesday 6 April 2021 @ 10.51 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

On 17 March 2021, the Civil Liability Amendment (Child Abuse) Bill 2021 (NSW) (‘the Bill’) was introduced to the Legislative Assembly. In his second reading speech, Attorney-General and Minister for the Prevention of Domestic Violence, Mark Speakman (‘the Attorney-General’) stated that the purpose of the Bill is to build on 2016 and 2018 reforms which were focussed on ensuring access to justice for child abuse survivors. According to the Bill Digest, the Bill has two key objects:

  1. to enable courts to set aside certain agreements that settled claims for child abuse where it is just and reasonable to do so in circumstances where there were certain legal barriers to the victim of the child abuse being fully compensated through a legal cause of action, and
  2. to ensure that part 2A of the Civil Liability Act 2002 (NSW) (‘the CLA’), which deals with personal injury claims by offenders in custody, does not restrict awards of damages for child abuse.

Background of the Bill: 2016 and 2018 Reforms

In 2016 and 2018, the NSW Government introduced an extensive package of reforms to remove legal barriers that had previously prevented child abuse survivors from accessing justice. 

The 2016 reform package included:

  • The retrospective and prospective removal of limitation periods for child abuse claims; and
  • The introduction of an updated Model Litigant Policy and Guiding Principles for Civil Claims for Child Abuse.

The 2018 reform package included:

  • A requirement that a proper defendant be appointed for case against unincorporated organisations (this requirement removed what was known as the ‘Ellis defence’); 
  • Two new prospective statutory liabilities for child abuse; and 
  • An exception to the limitations imposed by part 2A of the CLA which involves special provisions for offenders in custody.

Purpose of the Bill

The Bill is intended to ensure that survivors who entered into certain settlements prior to the commencement of the 2016 and 2018 reforms are afforded the same access to justice as survivors who brought a claim after the reforms. In his second reading speech, the Attorney-General stated:

"Prior to the 2016 and 2018 reforms many survivors entered into settlements that they identified to the royal commission as inadequate or far too low and that they felt forced to accept due to legal technicalities. Many settlement agreements entered into by survivors might now be considered unjust or unfair, particularly where those legal barriers have been removed following the New South Wales Government's reform to civil liability in 2016 and 2018. If those legal barriers had not existed at the time of the settlement, those survivors would have been in a better negotiating position and may have negotiated a higher settlement amount."

These ‘legal technicalities’ most commonly involved the expiry of limitation periods and the inability to identify a proper defendant to sue. Both technicalities have been resolved and removed as barriers to access for justice by the 2016 and 2018 reforms. However in his second reading speech, the Attorney-General stated that individuals who entered settlement agreements prior to the 2016 and 2018 reforms have not been able to benefit from these reforms. Settlement agreements release the responsible institution or person from liability and therefore, generally preclude individuals from seeking further compensation.

In response to this observation, the Bill will allow the court to set aside certain settlement agreements if it is ‘just and reasonable to do so’. If passed, the Bill would allow courts to set aside settlement agreements for claims that were either:

  • impacted by the expiry of the limitation period; or 
  • where an organisation was not incorporated and there was therefore no proper defendant to the cause of action; or 
  • both.

Furthermore, the Attorney-General also pointed out that 2018 amendment which excludes child abuse claims from the application of part 2A of the CLA only has prospective application. As a consequence, survivors who were abused while in custody prior to the commencement of the 2018 reforms have remained restricted by the part 2A limitations. The Attorney-General stated:

"Survivors of child abuse in custody have, in some cases, been significantly limited in the damages they can recover due to the operation of part 2A, despite otherwise having strong claims. The damages awardable under part 2A are capped by what a claimant would have been entitled to receive under the Workers Compensation Act 1987 at the time the injury arose. In some cases this equates to no damages provided for purely psychological injury."

In response to this, the Bill intends to assert that part 2A does not apply and is taken never to have applied to an injury arising from child abuse. Additionally, the Bill would allow for the setting aside of settlements, judgments and consent orders impacted by part 2A of the CLA.

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Civil Liability Amendment (Child Abuse) Bill 2021 (NSW), second reading speech and other explanatory materials available from TimeBase's LawOne service.

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