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Civil Liability Legislation Amendment
(Child Sexual Abuse Actions) Act 2018

Frequently Asked Questions

Disclaimer: no part of the information provided on this page is intended to be legal advice and is for general information only. Survivors are urged to seek independent legal advice on the application of this new legislation to a potential civil claim.

How does this legislation affect the time periods which a survivor of child sexual abuse has to bring an action for damages against a responsible person or institution?

This new law removes any time limits that exist for bringing a civil action for damages in child sexual abuse cases. A survivor can bring a civil action no matter when in the past the child sexual abuse occurred.

What is covered by the term ‘child sexual abuse’?

'Child sexual abuse' is defined as being sexual abuse that occurred when the person was under 18 years of age. The term ‘sexual abuse’ is not defined in the new laws. If a matter goes to trial, it will be up to the court to decide whether a particular abuse is sexual in nature.

Does the legislation apply to claims by the family where a survivor has died?

No. The removal of the time limits is only in regard to cases where the survivor brings a claim.

How do I know if I can bring an action?

It is important to obtain independent legal advice as these matters can be complex. A list of lawyers who practice in this area can be obtained from the Law Society of Western Australia on (08) 9324 8600 or Law Access on (08) 6488 6813. In some circumstances, you may be entitled to Legal Aid. You can contact the Legal Aid Commission on 1300 650 579. You may also wish to contact knowmore which is an independent service giving free legal advice to assist survivors of institutional child sexual abuse on 1800 605 762.

I have a claim against the State Government. Who will be acting for the State Government in these claims?

The State Solicitor of Western Australia will be acting on behalf of the State Government in all child sexual abuse claims. The State Solicitor's Office can receive written notice of any claim at the following address:

State Solicitor's Office
David Malcolm Justice Centre
28 Barrack Street
Perth WA 6000
sso@sso.wa.gov.au

Are there any guidelines which apply to the State Government in regards to child sexual abuse claims?

Yes. This was one of the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. Refer to the Western Australia Government Whole of Government Guiding Principles for Responding to Civil Litigation Involving Child Sexual Abuse.

I have a claim against a non-government institution. Who can I contact?

You will need to contact the particular non-government institution. It is recommended that you seek independent legal advice.

Who can a survivor contact for counselling and support?

There are a range of counselling and support services available at a State and national level to assist survivors of child sexual abuse. Refer to the list of service providers.

What are some of the differences between the National Redress Scheme and a civil action for damages for child sexual abuse?

The National Redress Scheme provides redress to people who were abused in places that were run by the Commonwealth and other Australian jurisdictions and Institutions that have opted in to the scheme. The National Redress Scheme is now accepting applications, having commenced on 1 July 2018. On Wednesday 27 June 2018, the Western Australian Government announced that it will join the National Redress Scheme. Refer to the Department of the Premier and Cabinet website for more information.

Redress is not compensation – it is about acknowledging the harm caused, and supporting people who have experienced child sexual abuse in an institution to move forward positively in the way that is best for them. The redress payments proposed will be assessed on a case-by-case basis, reflecting the severity and impact of the abuse experienced with a maximum of $150,000.

It is important to note that the National Redress Scheme will be an alternative to getting compensation through the courts – a survivor would only be able to do one or the other, but not both.

The threshold that a claimant will have to meet to receive a payment under the National Redress Scheme (reasonable satisfaction) is lower than that required in actions before the courts (balance of probabilities) and therefore, depending on the circumstances, it may be easier for claimants to establish their case under the National Redress Scheme.

For more information on the National Redress Scheme phone the National Redress Scheme Information Line on 1800 146 713.

Will the survivor receive an apology or direct personal response?

This question may depend upon the particular institution involved. Where it is a State Government institution, the State and its agencies will offer to make a written or verbal apology by a sufficiently senior appropriate officer where the State has acted improperly.

Is there a limit on what a lawyer can charge in child sexual abuse civil cases?

The Legal Costs Committee has made a determination. Legal costs charged by a lawyer in child sexual abuse civil cases must be in accordance with the schedule of costs in the determination. Refer to the copy of the determination.

A lawyer may apply to court for costs in excess of the determination in cases that are unusually difficult or complex.

What if the lawyer is from outside Western Australia?

Under section 255 of the Legal Profession Act 2008 (WA) a client may notify the law practice in writing that Part 10 of that Act must apply to the matter, in which case the limits to what the lawyer can charge under the cost determination will apply. Please note that a notification has no effect if it is given after the period of 28 days after the law practice discloses to the client (under a corresponding law) information about the client’s right to make a notification of that kind. Therefore if you are instructing a lawyer from outside Western Australia and you want the WA costs determination apply, you must give a notification to that effect with this time limit.

If a survivor has received criminal injuries compensation for child sexual abuse, can they still bring a civil claim for damages in respect of that sexual abuse?

Yes. If a court awards damages in favour of the survivor the amount already received through criminal injuries compensation will then be deducted by the court. Any further questions relating to criminal injuries compensation can be addressed to the Chief Assessor. The contact details are here available on the Compensation page.

If a survivor has previously brought a claim for child sexual abuse and received a court judgment or settlement can they bring another civil action?

When a case that was previously barred due to the application of the limitation periods was settled or had a judgment entered, the new legislation allows a survivor to ask a court for permission to bring that civil case again. Independent legal advice should be obtained.

I have a question that hasn’t been answered here. Who can I contact?

Please contact the:

Department of Justice
Level 23
David Malcolm Justice Centre
28 Barrack Street
PERTH WA 6000
cfms@justice.wa.gov.au


Last updated: 9-Jul-2018

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