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The NSW Government has announced it will overhaul civil litigation laws to enable thousands of survivors to sue institutions responsible for child abuse.

Attorney-General Mark Speakman said NSW will implement recommendations of the Royal Commission’s Redress and Civil Litigation Report, which was released in September 2015. The changes will allow survivors to sue against organisations including churches, which could not previously be sued for historic and current claims of child abuse.

“The NSW Government will remove legal barriers that have stopped survivors of child abuse from seeking the justice they deserve,” Speakman said. “The Royal Commission found many survivors felt let down by the current civil litigation system, which made it difficult for them to seek damages and hold institutions to account. 

“These reforms will provide access to new avenues to allow survivors to pursue compensation, so they can focus on recovering and moving forward with their lives.” 

The changes include legislation to prevent institutions relying on the so-called “Ellis Defence”, which enabled certain institutions operating with associated trusts to avoid liability for child abuse. Courts will have power to appoint trustees to be sued if those institutions fail to nominate an entity with assets as a proper defendant and allow the assets of the trust to be used to satisfy the claim.

The legislation will also codify and extend the vicarious liability of institutions for employees so that employees will be liable for non-employees like volunteers or religious officers who have taken advantage of their position to carry out abuse. The onus of proof to displace liability will be placed on the institution to prove it took reasonable precautions to prevent the abuse. NSW is the first state to pass laws enabling the National Redress Scheme and to introduce a comprehensive criminal justice response to the Royal Commission. Speakman promised that the NSW Government would continue to lead the way in supporting survivors of institutional child sex abuse, and that the announced civil litigation reforms will be introduced before the end
of 2018.