Western Australia is the latest state to introduce laws which will enhance the prospects of success for claimants’ bringing claims for damages arising out of non-recent sexual abuse. Following the lead of all other states, apart from South Australia, legislation has just been enacted that will abolish the 6 year limitation period. The recently concluded Royal Commission found that on average an individual waited 22 years to disclose their abusive experiences The changes being introduced also provide a legal basis for suing institutions in the name of their current office holders and include provisions designed to overcome difficulties survivors may face in identifying a correct defendant. Almost all other Australian states have enacted similar provisions in recent years and the precise provisions vary from state to state. Furthermore, at Federal level Commonwealth agencies have been instructed not to plead limitation defences in otherwise time-barred claims or oppose applications by claimants for an extension of time to bring their claims.
The defendant’s right to raise a limitation defence has not been totally extinguished. Generally there are still provisions for a defendant to apply for a claim to be permanently stayed where there cannot be a fair trial of the matter. The provision has not been used extensively. However, the first reported case in Victoria was decided last year, when a defendant made an initially unsuccessful application that was overturned by the Court of Appeal, see Connellan v Murphy  VSCA 116.
A female claimant made allegations of having been raped by the 13-year-old son of a family she had been placed with for approximately seven-ten days in the days after the death of her father in 1968. She also alleged that she had been molested by another boy staying with the family at the time but had not brought proceedings against him and he could not be identified properly. The evidential position was finely balanced and described by the Court of Appeal as the ‘exceptional circumstances of the specific facts’. No one who was still alive could give evidence of the terms of the placement although the claimant’s sister could recall the claimant being placed. The defendant had no recollection of meeting the claimant and his brother supported him on that point. Further aspects in the evidential mix included the fact that the placement had not been in an institutional setting (with a consequent lack of records), some witnesses (the claimant’s and defendant’s parents) were dead and the house where events were said to have happened had been demolished. The court also held that consideration of quantum and causation had been rendered more difficult by the passage of time. Overall it was prepared to conclude that requiring the defendant to meet the claim would be burdensome and oppressive.
It remains to be seen the extent to which this decision and approach will be followed in Victoria or elsewhere. Survivors have found it disappointing that the court, on these particular facts, was not prepared to adopt a purposive interpretation of the legislation.
In Scotland, The Limitation (Childhood Abuse) (Scotland) Act 2017 has now been in force for just over six months. It abolished the three year limitation rule for abuse sustained after 26 September 1964 with retrospective effect but also contained a similar provision to Victoria’s. A defendant can oppose a victim’s claim if they can persuade a court their entitlement to a fair hearing has been compromised such that they will suffer “substantial prejudice” if the case proceeds and that is sufficient to outweigh the claimant’s interest.
Scottish lawyers report that in terms of impact on claims or litigation the consequences of the Act have yet to be fully manifested. There are believed to be over 2000 claims pending however, there is currently little incentive to litigate swiftly. Firstly, because of the change in the law in relation to limitation and secondly, because legislation in relation to costs is making its way through the Scottish parliament and claimants’ solicitors are understood to be awaiting its anticipated introduction in autumn 2018 before proceeding with the outstanding claims. Consequently, there has not been any opportunity for reported decisions on the new legislation.
Within IICSA’s consideration of the issues around non-recent sexual abuse limitation remains a very live concern. As with other jurisdictions, survivors and their representatives want to see the use of the doctrine abolished in this context. Defendant stakeholders do not agree and have raised concerns that the removal of limitation might lead to satellite litigation. The defendant proposed solution is the introduction of a pre-action protocol which could assist in resolving the issue earlier on than under the present system.
IICSA is due to issue its interim report next week on 25 April 2018 – we will know then whether any specific recommendations will be made in relation to the issue of limitation in England and Wales.
Written by Sarah Firth, an associate with BLM