In October 2018, a former student of a prominent Brisbane school brought a case for $800,000 against the school following abuse by a convicted offender during school counselling sessions in the late 1980s.
The claim stem from psychiatric injuries as well as loss of earning ability.
In their submissions, the applicant’s lawyers argued the student went from an average student to a straight D-student as a direct consequence of the abuse that took place during his time as a student.
The application seeks compensation from the school and cannot claim personal compensation against the offender as he has deceased. The offender has been convicted of abusing over 70 students during his time at the school.
The case, heard in the Supreme Court of Queensland, is the first case arising from the 2016 amendments to the Limitation of Actions Act 1974.
Prior to the amendments, claims for sexual abuse were time-barred to only three years from the date of the incident. Thus, historical claims like this were unable to be made because of the time bar.
The Queensland government made the amendments following recommendations from the recent Royal Commission into Institutional Responses to Child Sexual Abuse. Indeed, the 2015 Redress and Civil Litigation Report revealed that many survivors do not disclose their child sexual abuse for up to twenty or more years after the incident.
On page 434, the report states:
“Through private session, public hearings and submissions, many survivors, survivor advocacy and support groups and academics have told us that limitation periods are a significant, sometimes insurmountable, barrier to survivors pursuing civil litigation.”
The new laws also empower the court to set aside a previous settlement agreement on the basis that it would be ‘just and reasonable’ to do so. In exercising this discretion, the court may consider whether a previous settlement was affected by the time limitation and whether a current claim is compromised by the acceptance of the smaller settlement.
In this case, the school and the survivor came to a settlement agreement in 2002 where $47,000 was paid to the survivor after months of negotiations and mediated sessions. In this settlement, liability of the school was not admitted.
The new law does not limit a court’s power to dismiss proceedings if the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
The landmark decision is yet to be handed down.