By David Slatyer, Partner and James Jessup, Lawyer
Late last year Queensland passed legislation (Civil Liability and Other Legislation Amendment Act 2019) with the following significant changes to come into effect on 2 March 2020:
1. Extended definition of ‘child abuse’
The Act will extend the definition of child abuse within several pieces of legislation to include ‘serious physical abuse’ and ‘psychological abuse perpetrated in connection with sexual abuse or serious physical abuse of the child’.
2. Limitation period removed
The Act will also amend the Limitation of Actions Act and Personal Injuries Proceedings Act (PIPA) to reflect the broadened definition – meaning the limitation period on initiating such claims will no longer apply. This is amendment will apply retrospectively (meaning it will apply to all claims past and present).
3. Duty to prevent future abuse, reserve onus on institutions
The broadened definition of abuse will take effect within a prospective duty (meaning the duty will only apply to claims after the provision has commenced) to prevent future abuse, which includes a reverse onus on institutions to prove that they took reasonable steps to prevent sexual abuse of a child in their care, supervision, control or authority, by a person associated with the institution. A person associated with the institution will be defined broadly to include volunteers and contractors.
4. Abolition of the ‘Ellis Defence’
The Act will remove the possibility of an institution relying on the ‘Ellis Defence’ – where an unincorporated institution could not be sued for historical abuse because it did not exist as a legal entity at the time of the abuse, and its assets were bound in a legally protected trust. This will be a retrospective amendment.
Claimants will be able to start or continue causes of action against institutions who were at the time of the abuse, and remain, unincorporated, or in certain circumstances the current office holders of same. The institution may nominate an appropriate defendant who has assets sufficient to satisfy liability, and may satisfy the liability out of the assets of an associated trust of the institution. If the institution does not nominate an appropriate defendant within a requisite time period, the court may order that a trustee of a trust is the institutions nominee within certain limitations.
The broadened definition of abuse within the CLA will also apply to the provisions within it that relate to the issuing of particularly worded apologies without admission of liability.
These amendments will assist in combatting access to justice issues for childhood abuse survivors in line with the recommendations provided by the Royal Commission into Institutional Responses to Child Sexual Abuse.
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