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NSW bill gives child sexual abuse survivors a chance to set aside previous settlements

On Tuesday, 9 November the New South Wales government passed The Civil Liability Amendment (Child Abuse) Bill 2021. It will allow courts to set aside certain earlier settlements in child sexual abuse cases — giving survivors a second chance to contest previous settlements and make a further claim.

The new law will enable NSW courts to set aside unfair settlements in cases where survivors faced legal barriers and other restrictions that limited their ability to receive a fair settlement. In this article, we’ll run through everything you need to know about these new changes.

What does the new legislation mean for survivors of sexual abuse?

Prior to Tuesday’s amendments, survivors of child sexual abuse who settled for unfair settlements were restricted and unable to make a further claim for damages. Thanks to amendments about to be made to the Civil Liability Act of 2002 (CLA), those survivors have the right to seek much larger damages — hundreds of thousands of dollars — notwithstanding their previous settlement.

These changes are especially important for survivors who were pressured into accepting their agreements by institutional power and legal barriers. Prior to the March 2016 Limitation Act changes, survivors were unable to sue for claims that happened outside the statutory legal time limit. This law and a range of other legal technicalities shielded institutions from civil liability.

Survivors prior to 2016 were not afforded the benefit of no limitation period. As a result, many felt pressure to accept nominal sums in their settlements from various institutions. The new changes to the Civil Liability Act will enable the courts to set aside such agreements in the event the survivor wishes to pursue a further claim for damages.

The amendments will also remove part of the legislation that prevented survivors from making claims in cases where their abuse occurred while in custody at a juvenile justice facility. Part 2A of the CLA previously required survivors to prove their abuse caused at least 15% whole person impairment in order to make a claim for general damages and economic loss. The new legislation removes this legal barrier that prevented fair settlements. You no longer need a 15% whole person impairment to claim damages if you were a victim of child abuse while in custody.

What is the criteria that deems a case unfair?

For courts to set aside a historic child sexual abuse agreements, they will seek out certain criteria to overturn the settlement. 

The bill specifically explains that “affected agreements” include those that “prevent the exercise of an action on a cause of action for child abuse if the agreement was entered into when a limitation period applying to the cause of action had expired or when an organisation that would have been liable for the child abuse was unincorporated.” So, agreements or settlements entered into before March 2016 (when the Limitation Act of NSW changed) will form part of the agreements/settlements that the courts can consider setting aside.

There are other factors that will determine which settlements the courts can set aside. This includes; the amount of the previous settlement, the bargaining position of the parties at the time of the settlement and the conduct of the parties and their legal representatives and other relevant matters.

These obstacles will likely not be difficult for survivors to overcome. Therefore, these amendments give survivors a second chance to claim damages far exceeding the unfair settlements they were forced into in the past.

If you’re a survivor of child sexual abuse and wish to resettle your case, reach out to the Gerard Malouf and Partners team today. 

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