My previous settlement isn’t binding. Is that fair?

To some people it may seem unfair that a defendant has settled a claim for childhood sexual abuse or serious physical abuse and that settlement can be set aside by the Court.

There are good reasons why the Parliament has passed legislation allowing previous settlements to be set aside.

Many survivors of childhood sexual and/or serious physical abuse do not report the events to anyone for decades. It is very uncommon for a child to report the events at the time. Children who did report the events may not have been believed at the time, making it even harder to raise the issue again as an adult.

South Australia has a Limitation of Actions Act. Until 1 February 2019 the Act  required  all claims for personal injury to be issued within 3 years of the injury occurring.  This meant that a person who suffered abuse as a child was required to issue court proceedings by the age of 21. If they did not, then their claim was out of time. A person can apply to a Court for an extension of time to bring a claim but if this is not granted then their claim fails, they receive no compensation and will be liable for the legal costs of the defendant.

In recognition of this problem, the Royal Commission into Institutional Responses to Child Sexual Abuse recommended in 2015 that States and Territories remove the limitation period for people to bring childhood sexual and/ or serious physical abuse claims.

In South Australia the limitation period was removed on 1 February 2019 and applies to actions in which childhood sexual and/or serious physical abuse occurred before and/or after that date. The practical effect of the removal is that people who are yet to finalise their claim have a significant advantage over people who had settled their claim at an earlier time.  Many people who settled a legal claim before the limitation period was removed received a modest amount of compensation, partly due to the weakness in their legal position caused by bringing their claim outside of the 3 year time limit.

Some survivors also represented themselves when settling their claims and they may have been resolved for significantly less compensation than they would have been had they been legally represented.

To ensure that people with similar claims are dealt with in a similar way, the Parliament has taken the unusual step of allowing survivors of sexual and/or serious physical abuse who settled their claim previously to apply to the Court to be able to relitigate their claim and resolve it either by settlement or judgment of the Court.

The Court can take into account to what extent the existence of the time limitation caused a survivor to enter into a settlement, and also take into account other circumstances surrounding the settlement.

It will be up to the Court to interpret the legislation and apply it to real-life applications. There will be more guidance as to who may succeed in such applications after some matters have been decided by the Court.

It would be difficult to represent yourself in relation to such an application. You can contact MKF lawyers to discuss your options for legal representation on 08 7093 2998 or at info@mkflawyers.com.au.  For more information about making a claim for childhood abuse, visit our Abuse Law web page at www.mkflawyers.com.au/abuselaw.

‍