Old School Injustice

A generation ago, corporal punishment at school was commonplace. Canings and strappings that would now turn school mums like me apoplectic were once considered a routine and acceptable means of enforcing discipline and taming the unruly child.

Photo by Jp Valery, Unsplash

But seriously violent behaviour – way beyond regimental canings and strappings –  such as beating young children with closed fists, to split their lips and make them bleed, slapping them so hard across the ears they permanently lose their hearing, throwing them into walls, knocking them unconscious, and holding them under water, never has been and never will be deemed acceptable by any reasonable, right-thinking person.  Such behaviour is not corporal punishment.  It is nothing short of child abuse, by anyone’s definition.

In relatively recent times I have acted for a number of former students in relation to historical claims of serious violence in schools, criminal assaults on young children at the hands of those entrusted with their care and education. Their stories are harrowing. The physical beatings and mistreatment they describe were simply horrific, and could never to be excused as standard fare, either now or “back in the bad old days”.  To the extent such behaviour occurred, it was remarkable, and thoroughly unacceptable, by any standard and in any era.

Some of my clients suffered sexual abuse.  Others were subjected ‘only’ to physical abuse.  But their horrendous stories clearly demonstrate the effects of their abuse, whether sexual or physical, was equally devastating to their lives. One client candidly revealed to me that the two sexual attacks he suffered at boarding school were far less damaging to him than a full further year of inescapable physical torture he endured.

Last month, the Queensland Parliament held a public hearing to discuss draft legislation to remove the statute of limitations in respect of serious physical child abuse by an institution.

Section 11 of the Queensland Limitation of Actions Act 1974 (“LAA”) read with section 19 of the Personal Injuries Proceeding Act 2002 (Qld) (“PIPA”), requires that abused children must make their personal injury claim within three years after they turn 18. Where this time has passed, the victim would need to seek leave under section 31 of the LAA and pass a very stringent and seldom satisfied test.

In 2016, following the release of the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 was passed, amending the LLA to allow sexually abused children to make claims later in life. However, as the law currently stands, seriously physically-abused school children, who did not also suffer sexual abuse, still need to bring their claims for compensation no later than their 21st birthday unless they can demonstrate some other very special circumstance to obtain leave.

Having heard the stories of broken adults who were systematically beaten, tormented and tortured as young children, I find it difficult to reconcile from a legal perspective how the time limitation for bringing personal injuries claims can be abolished for one form of child abuse but not another, when it is so obvious the effects of any such abuse can be so devastating to its victims.

The Queensland Law Society has made written and oral submissions to Parliament raising concerns regarding, amongst other things, the retrospective application of a duty of care, and the breadth of the proposed definition of what is ‘serious physical abuse’.  Yes, of course great care should always be taken when tinkering with time-honoured and fundamental legislative principles that impact on people’s lives. But, in the end, fairness and justice surely must be the paramount consideration.

The governments of NSW and Victoria concluded some time ago, after extensive consultation, that the definition of child abuse should include both serious physical and sexual abuse.  It is time for Queensland to do likewise.  Access to justice for abused children should not be limited by the method of abuse, as that distinction has certainly not limited the terrible damage suffered by the innocent victims.

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