South Australia has an envied history of “firsts”. First to allow women to vote. First to legalise homosexuality. However, we are certainly not first in our response to the recommendations concerning redress and civil litigation arising from the final report of the Royal Commission into Institutional Responses to Child Sexual Abuse.
This article is published on the first anniversary of the Commission handing down its report in order to pose the question of where we are at as a state in addressing the content of this critical piece of work.
The report contained clear and specific recommendations regarding the establishment of a national redress scheme and reform to civil litigation. To be clear, these recommendations are not an “either or” scenario; the Royal Commission recommends that both should occur.
So are they happening?
The national redress scheme is obviously an issue for a national conversation and agreement. Our state government has until now said it won’t kick in anything, as it has already established a state redress scheme. Whether the state scheme is adequate or otherwise, I won’t touch on, but in light of the Royal Commission’s recommendations regarding a national scheme, one would hope we might be a little more accommodating.
It is in the area of reform to civil litigation where there can be no excuse for anything other than immediate actions.
To understand the specifics of the Royal Commission’s recommendations in this area, one must first understand the difficulties faced by victims of abuse within institutions in seeking compensation. Unfortunately, they can be many.
These are five current litigation hurdles that a claimant who has suffered institutional child sexual abuse may need to overcome and that the Royal Commission says should be changed, reformed and, in some cases, removed.
Hurdle 1: Time limits
Any claim for personal injury must be formally commenced in a court within three years of its happening. So if you wish to sue an institution for negligence for allowing your sexual abuse, you have just three years within which to pursue it.
If, at the time of the abuse, the victim is under 18 years, the three years starts ticking from when they turn 18, so legal proceedings must begin by age 21.
Most victims are out of time – and often way out of time – when they realise they may have a claim. It is not uncommon for victims to have repressed past events, or just been legally ignorant as to their right to make a claim.
The Royal Commission says the average time it takes for a victim of institutional child sexual abuse to disclose their abuse is 25 years.
Extensions of time can be granted by courts but there are strict criteria. In the recent case of Ireland v Wightman, our Supreme Court quite significantly tightened up the rules allowing for the granting of extensions of time, so for an out-of-time claimant, things are getting worse not better.
Sometimes it’s pretty hard to get the justice game started in the first place.
Royal Commission recommendation
The Royal Commission’s answer is pretty simple – get rid of time limits for victims seeking damages for personal injury resulting from sexual abuse in an institutional context when that person is or was a child. Sounds fair.
What has been our government’s response? Absolutely nothing.
The states of Victoria (in 2015) and New South Wales (in 2016) have already enacted legislation getting rid of time limits. The states and territories of the ACT, Queensland and Western Australia all have legislation before their parliaments to remove time limits, expected to be passed by year’s end.
Shamefully, there is nothing currently before our parliament. So South Australian victims are behind the eight ball and can be justifiably aggrieved.
Hurdle 2: Delegated duties
Unfortunately, a victim can discover that the institution they thought was responsible for their care actually wasn’t. Why? Institutions delegate their responsibilities to individuals.
The by now bamboozled claimant discovers that in law, a duty of care delegated is a duty of care avoided, and in law if there is no duty of care there can be no legal liability.
As often happens, the unfortunate claimant then discovers that the person to whom the duty was delegated is impecunious and is unable to pay damages. So that’s game set and match against the victim claimant without the first ball being served.
Royal Commission recommendation
The Royal Commission’s answer is again the epitome of common sense – state and territory governments ought to legislate to create non-delegate lead duties on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution.
In fairness to our State Government, this requires a bit of thought. Where is it up to with it? We don’t know.
Only Queensland has released a discussion paper on this and the other areas I shall come to, but given the horrific abuse that occurred in this state by institutions delegating to individual carers and the like, any delay in getting this one off the ground ought to be met with condemnation. Particularly as reform will likely only be prospective not retrospective, meaning that if sexual abuse is happening now the claimant is still thwarted.
Hurdle 3: Property trusts
Next is the potential discovery by the claimant that whereas she or he thought the institution being sued was cashed up and able to pay damages, all its money turns out to be held by a property trust. Now is probably not the moment to entertain you with what all lawyers learn about corporate structures and entities in law school, but long story short, if the money is somewhere else it cannot be got at.
So the disconsolate claimant packs up their bag again and heads for the grandstand exit empty-handed.
Royal Commission recommendation
The Royal Commission says that for damages in respect of child sexual abuse involving an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability, the property trust becomes the defendant and is liable and must pay up.
Again, this requires legislative amendments. And again, in South Australia nothing has happened to date.
As there is evidence that institutions created property trusts with the intent of putting their assets beyond the reach of claimants, our State Government and parliament had better get their skates on or face some pretty righteous indignation from those denied compensation.
Hurdle 4: Lack of insurance
Some institutions providing services will be funded by government. Governments are not liable in such circumstances because they are merely the funder and do not owe a duty of care to those for whom care is provided.
The unlucky claimant may discover that many such providers are unincorporated. They then discover that not only are they without assets, but are uninsured. Yep, it’s pack your bag time again.
Royal Commission recommendation
The Royal Commission says in these cases, governments ought to consider making it mandatory for a person or unincorporated body to have insurance before government funding is granted.
To date there is nothing in South Australia to indicate our government will consider such a requirement, although there is a heightened awareness now of these risks and one hopes and assumes government departments and agencies do their due diligence regarding the insurance status of an entity before doling out funding.
Hurdle 5: Tactics
This hurdle is about the rules of the game. Not all institutional defendants being sued want to play nice.
Of late, the sheer anger of the Australian community has had a positive effect on their claims-handling conduct, but historically there has been some extraordinary legal posturing. This has sought to help the institution avoid legal liability, and to make it bloody hard for a claimant to succeed without going through a legal nightmare which can often bring back all the worst of what they, as a victim, have already endured.
Royal commission recommendation
This one probably doesn’t need too much thought. The Royal Commission says government and non-government institutions that receive, or expect to receive, civil claims for compensation for institutional child sexual abuse should adopt guidelines for responding to such claims. These should, among other things, be designed to minimise the risk of creating more trauma for claimants and avoid unnecessary adversarial responses to claims. Hurrah, sense at last!
However, this again requires legislative reform. There is no indication yet from our State Government about its intention regarding that recommendation, but for those acting against the institutions, this and the other recommendations regarding reform to civil litigation cannot happen soon enough.
Of all these hurdles, the one to remove post haste is time limits. They are the single biggest barrier in this state to victims of institutional child sexual abuse being able to pursue just compensation.
In the face of our two largest states having already acted and most other states and territories in the throes of enacting legislation, it is just flat-footed of our State Government not to have actioned this.
All these recommendations ought lead to legislative reform sooner rather than latter, but as to the removal of time limits, for the semblance of any compassion to those wronged by institutional child sexual abuse and to enable them to receive proper recompense right now, please get on with it!
One year is already too long to have waited for these critical reforms.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.
Disclosure: Morry Bailes is a member of the Liberal Party.
His column appears every second Thursday.
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