Many survivors of historic child sexual abuse have settled a civil law claim against their abuser or the institution they allege to be vicariously liable and/or negligence. These claims have been made to seek redress for the harm, pain and suffering these individuals have faced. Unfortunately, some of these settlements have been reached under unjust circumstances and have left the survivor with much less compensation than which they would ordinarily be entitled.

The law in many jurisdictions has now been amended to rectify these grave injustices by allowing the survivor a second chance at compensation.  The majority of States have enacted legislation that allow a Court to overturn a settlement deed in a historic child sexual abuse matter. Most notably, the State of New South Wales has recently passed the Civil Liability Amendment (Child Abuse) Bill 2021 which gives the court discretion to overturn a restrictive settlement deed where the Court finds it just and reasonable to do so.

Details of the Act

Section 50X of the Civil Liability Amendment (child Abuse) Bill 2021 allows a survivor who has previously received compensation and signed a deed of settlement prohibiting them from making any further claims, to apply for the deed to be set aside.

In making the discretionary decision to set aside the deed, the Court may consider the following:

  1. the amount paid to the applicant under the agreement;
  2. the bargaining position of the parties to the agreement;
  3. the conduct in relation to the agreement of:
    1. the parties other than the applicant, or
    2. the legal representatives of the parties other than the application; and
  4. any other matter the Court considers relevant.

Case examples

Whilst this legislation is new to New South Wales, there have been cases litigated in other jurisdictions for similar legislation. The matter of JAS v the Trustees of the Christian Brothers [2018] WADC 169 (“JAS”) was heard in the District Court of Western Australia under Section 92 of the Limitation Act 2005 (WA) and provides insight into how the Courts apply such legislation.

In the matter of JAS, the plaintiff settled their claim in 2015 for an amount of $100,000. The settlement was reached prior to the limitation period being amended for a historic sexual abuse matter and at the time the plaintiff’s claim was statute barred.

In evaluating the circumstances of the case, the Court noted that as a general rule there is no statutory limitation period for such a claim as the amendments to the Limitation Act 2005 (WA) to remove limitation periods for all child sexual abuse actions was both retrospective and prospective. The Court noted that at the time the settlement was reached, the notion that the claim was statute barred severely impacted the bargaining position of the plaintiff. The plaintiff was forced to accept the settlement as they held a belief that they had no prospects of success. The Court granted leave and noted that in the circumstances it was just and reasonable to do so.

The Court has noted that each case has different circumstances that will need to be considered when applying such legislation.

In noting the above, survivors now have more options in their pursuit of justice against abusers and institutions alike. If you or someone you know had a settlement for a historic child sexual abuse matter that seemed unsatisfactory you may now have recourse to revisit litigation and obtain the compensation you are entitled to. Please reach out to our Chamberlains Law Firm to have a preliminary chat with one of our solicitors about your circumstances.