Abolition of the Limitation Period for Sexual Abuse Claims: Implications for Religious Schools and Institutions in New South Wales

Introduction

Legislative changes in New South Wales have significantly altered the legal landscape for religious schools and institutions facing historical sexual abuse claims. The abolition of the three-year limitation period for civil actions relating to child sexual abuse has profound implications for risk management, governance, and litigation strategy within these organisations.

Background: The Limitation Period Reform

Historically, claimants in NSW were required to commence civil proceedings for personal injury, including sexual abuse, within three years of the cause of action arising. This limitation period often prevented survivors of child sexual abuse from seeking redress, given the well-documented delays in disclosure associated with such trauma.

In response to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse, the NSW government enacted the Limitation Amendment (Child Abuse) Act 2016 (NSW). This legislation abolished the limitation period for civil claims arising from child sexual abuse, serious physical abuse, and psychological abuse connected to such conduct. The reform applies retrospectively, enabling claims to be brought regardless of when the alleged abuse occurred.

Implications for Religious Schools and Institutions

1. Increased Exposure to Historical Claims

Religious schools and institutions are now exposed to claims relating to incidents that may have occurred decades ago. The removal of the limitation period means that institutions may face litigation involving former staff, volunteers, or clergy, even where the alleged perpetrator or witnesses are deceased or evidence is difficult to obtain.

2. Evidentiary Challenges

Defending historical claims presents unique evidentiary challenges. Records may be incomplete or lost, and memories of events may have faded. While the courts retain discretion to ensure a fair trial, the onus is on institutions to demonstrate that a fair hearing is not possible due to the passage of time.

3. Vicarious Liability and Non-Delegable Duty

Religious institutions may be held vicariously liable for the actions of employees or persons in positions of authority. The High Court’s decision in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 clarified the circumstances in which institutions may be liable for abuse perpetrated by staff. Additionally, institutions may owe a non-delegable duty of care to students, further broadening potential liability.

4. Redress and Settlement Considerations

Given the potential for adverse publicity and the emotional impact on survivors and communities, many institutions are opting for alternative dispute resolution and participation in redress schemes. The National Redress Scheme provides a framework for survivors to obtain compensation without resorting to litigation, but does not preclude civil claims.

5. Governance and Risk Management

Religious schools and institutions must review and strengthen their governance frameworks, record-keeping practices, and child protection policies. Proactive risk management, including regular training, robust reporting mechanisms, and transparent engagement with survivors, is essential to mitigate future liability.

Conclusion

The abolition of the limitation period for child sexual abuse claims in NSW represents a significant shift in the legal obligations of religious schools and institutions. It is imperative for these organisations to understand the scope of their potential liability, implement comprehensive risk management strategies, and respond sensitively and lawfully to any claims that may arise.

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