The law of England and Wales can be unforgiving for survivors of childhood abuse who seek compensation but are out of time to bring a claim, but the position is not the same in Australia.
It is important to understand the differences in the respective laws when considering bringing a cross-border claim as it may affect the ultimate success, or failure, of a claim for compensation.
Strictly speaking, in England and Wales, a victim of unlawful abuse which has caused personal injury has three years in which to bring a claim for compensation, or, if the victim is a child at the time of the abuse, three years from the date on which the victim turns 18.
Despite the Limitation of Action Act 1980 affording a potential claimant the benefit of judicial discretion to exclude the time limit for an action in respect of personal injury where it is fair to do so, many claimants have failed to meet the requirements of the Limitation of Action Act 1980 and have found themselves without recourse to compensation.
The task is not insurmountable, but obtaining expert legal advice and representation to prepare your claim is important.
The position is vastly different for survivors of physical or sexual abuse in most parts of Australia following the recommendations made by the Victorian Family and Community Development Committee’s November 2013 Betrayal of Trust report and the national Royal Commission into Institutional Responses to Child Sexual Abuse.
Following the report, the Victorian Government introduced the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) which is removes any time limitations to bring a claim for compensation for personal injury resulting from physical abuse or sexual abuse committed against a child, and psychological injury which arises out of that act or omission.
Fundamentally, it does not matter if proceedings were issued prior to the amendment becoming law. If the defendant relies on a time limitation defence, that being, the claimant’s claim is statute barred, that element of the defendant’s defence is now invalid.
The Victorian example has been followed around Australia, with New South Wales, Queensland, the Northern Territory and the ACT abolishing time limitations for abuse committed against a child and South Australia currently pushing through similar laws.
In fact, Queensland provides the Court extraordinary discretion to set aside previously reached settlement agreements between the defendant and claimant in respect of child sexual abuse where it is just and reasonable to do so. In addition, the Court can set aside a previous judgment which found the claimant was statute barred from bringing a claim arising out of child sexual abuse.
It is important to note the Queensland provisions relate only to child sexual abuse, rather than physical abuse of a child.
In New South Wales, the court has the power to set aside a previous judgment which found the claimant was statute barred from bringing a claim arising out of child abuse.
This is good news for survivors of sexual abuse where Australian law is applied as it provides the opportunity to seek compensation without the need to apply to have the time limit excluded, as is the position in England and Wales.
However, all Australian States and Territories which have abolished time limitations preserve the Supreme Court’s jurisdiction to dismiss or permanently stay proceedings where the lapse of time has such a burdensome effect on the defendant’s defence so as to not allow a fair trial.
Recently, this was applied in the Victorian Supreme Court case of Connellan v Murphy [2017] VSCA 116 where it was found the defendant was so irretrievably prejudiced by the delay that the proceeding was permanently stayed as an abuse of process.
Understanding this complex area of law is no mean feat so survivors and victims should always seek prompt expert legal advice, irrespective of whether you are based in the United Kingdom or elsewhere, in order to explore avenues to compensation.
