Impending changes to Queensland Law – Child Sexual Abuse
Legal Development26 February 202026 February 2020
On 23 October 2019, the Queensland Government passed the Civil Liability and Other Legislation Amendment Act 2019 (Qld). The reforms are in response to the recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). The reforms will come into effect on 2 March 2020.
The National Redress Scheme has also been created in response to recommendations by the Royal Commission. The Scheme holds institutions accountable for child sexual abuse and helps survivors of institutional child sexual abuse gain access to counselling, a direct personal response, and a Redress payment.
As at 3 January 2020, the Scheme had 5,829 claims for child abuse compensation application and made $79.3 million in total payments, with an average payment of $81,376.
Snapshot of changes to the Civil Liability Act 2003 (Qld)
The definition of abuse is extended to include sexual abuse or serious physical abuse, and psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.
Institutions have a clear duty of care to take all reasonable steps to prevent child sexual abuse or serious physical abuse of children in the care of the organisation.
The burden of proof is also reversed where the institution will be taken to have breached its duty of care unless it can prove it took all reasonable steps to prevent the abuse.
A person who experienced child abuse by a person associated with an unincorporated institution while under the institution's care, supervision, control or authority will be entitled to start or continue a claim against the institution, notwithstanding that the institution is unincorporated.
An unincorporated institution can nominate a proper defendant for a claim to meet any liability incurred. If the institution does not nominate a proper defendant, the Court can require unincorporated institutions to identify any associated trusts and order that the trustee of the trust is nominated as the appropriate defendant where appropriate.
Institutions can access the assets of associated trusts to satisfy liabilities arising from a judgment in, or settlement of, an abuse claim.
Trustees may be indemnified out of trust property for reasonable legal costs and for liability for breach of trust for taking actions in accordance with the Act.
Liability for child abuse claims against previous office holders of institutions will be transferred to the relevant successor of the institutions.
Section 72A provides for an institution to give an apology to survivors of child abuse which cannot be construed or used as an admission of liability.
Changes to Limitation of Actions Act 1974 (Qld)
Amendment of section 11A retrospectively abolishes the limitation period for commencing a civil action for damages for personal injury relating to serious child physical abuse and psychological abuse connected with child sexual abuse and serious child physical abuse.
Changes to Personal Injuries Proceedings Act 2002 (Qld)
Extends the definition of abuseof a child to include sexual abuse, serious physical abuse, or psychological abuse of the child.
Underwriters and Operators of Educational Institutions should be aware of the new changes, which extend the liability of unincorporated institutions for child sexual abuse cases, and provide new avenues for child sexual abuse claimants to enforce any settlement or judgments.
Underwriters should review its disclosure requirements to ensure that it is provided with sufficient information regarding an insured's relationships with any unincorporated institutions.
Underwriters and claims managers should consider how records should be obtained and stored by an insured institution given the potential for long-tail claims and the reverse onus of proof.