Those who experienced abuse as a child but who are not eligible to receive support from the National Redress Scheme may consider pursuing a civil action instead. Depending on the circumstances, such an action could be founded in tort, in contract, under statute or otherwise, and compensation could be sought. Legal advice should be sought before commencing any civil action.

Under the Civil Liability Act 1936 (SA) an institution is an entity (whether public or private) that is responsible for a child and provides an activity, program or service of a kind that gives an opportunity for a person to have contact with a child, and does not include family [s 50A(1)].

Identifying the defendant

From 1 August 2022, the Civil Liability Act 1936 (SA) (Part 7A, Divisions 4, 5 and 6) allows for an abuse claim to be commenced against an unincorporated association through the nomination of an appropriate defendant, such as an associated trust, with sufficient assets to meet the potential liability. It also allows for an abuse claim to be commenced against a current office holder where a cause of action existed against a former office holder. The current office holder will not be held personally liable but may meet the liability with the assets of the institution or an associated trust. Finally, it allows for perpetual succession of unincorporated associations, thereby allowing for an abuse claim to be commenced against a successor institution following a change in structure such as a merger. From 1 August 2022, victims may be able to take action against unincorporated associations for historical abuse.

Setting aside settlements

From 1 August 2022, the Civil Liability Act 1936 (SA) allows for agreements to settle to be set aside by the court in limited circumstances. This may occur if the agreement occurred before the limitation period was removed on 1 February 2019, and the limitation period that previously applied had expired [s 50V(1)(a)]. See Time limits below. This may also occur if the agreement occurred before Part 7A commenced on 1 August 2022 and at the time of the agreement a claim could not be commenced against person or institution that would have been liable under Part 7A [s 50V(1)(b)]. See Identifying the defendant above.The Court will consider a range of matters in deciding whether to set aside an agreement [s 50W]. The court cannot set aside a deed of release signed in acceptance of an offer under the National Redress Scheme or an agreement relating to a relevant prior payment taken into account in the offer, nor a contract of insurance [s 50W(6)]. If set aside the agreement is void and any amount paid is not recoverable, but may be taken into account by the court in determining damages in a claim which is commenced and to which the agreement related.

Any person who wishes to set aside an agreement to settle in these circumstances should seek legal advice.

Duty of care held by institutions in negligence cases

From 1 August 2022, the Civil Liability Act 1936 (SA) sets out that institutions have "a duty to take all reasonable steps to prevent the abuse of a child by a person associated with the institution while the child is under the care, supervision, control or authority of the institution" [s 50E]. In addition, if a child is abused in these circumstances going forward, the institution is taken to have breached its duty unless the institution proves that it took all reasonable steps to prevent the abuse [s 50F]. Section 50F (3) sets out a number of matters that are relevant to deciding whether the institution took all reasonable steps to prevent the abuse. These provisions apply to any abuse that occurs after these provisions commenced.

Liability of institutions as employers

From 1 August 2022, the Civil Liability Act 1936 (SA) also sets out how institutions will be held vicariously liable for the abuse of a child by an employee (which may include a person who is akin to an employee) [s 50A(2)]. This may be the case where [s 50G (1)]:

In determining whether the employee was placed in such a role, the court will take into account whether the employee had one or more of the following [s 50G(2)]:

This is based on the common law set out in the case of Prince Alfred College Incorporated and ADC [2016] HCA 37, which still applies [s 50G(3)].

Time limits

There is no time limitation for a person to commence a civil child abuse action in South Australia [see Limitation of Actions Act 1936 (SA) s 3A(1)]. This is regardless of whether the claim for damages is founded in tort, in contract, under statute or otherwise [s 3A(2)]. It extends to a claim for damages arising pursuant to section 23 of the Civil Liability Act 1936 (SA) relating to wrongful death, or a claim that has survived the death of the person for the benefit of their estate [s 3A(3)].

A child abuse action can relate to any of the following:

See Limitations of Actions Act 1936 (SA) s 3A(5).

Legal help for civil claims concerning child sexual abuse

Since February 2022, the specialist community legal service, Knowmore (Legal Service), can also provide legal advice about redress and compensation options to survivors of child sexual abuse who are not eligible for the National Redress Scheme. Knowmore has offices in South Australia, Victoria, New South Wales and Queensland and provides an outreach service to other States. Knowmore can be contacted on 1800 605 762, or more information on the service can be located on the Knowmore (Legal Service) website

In relation to other (non-sexual) child abuse civil claims, preliminary legal advice is available from the Legal Services Commission's Free Legal Help Line on 1300 366 424. Further advice and representation may be available from Community Legal Services or from private lawyers. The Law Society of South Australia can provide referrals to suitable private lawyers, who may offer deferred fees in some circumstances.