Abuse claim refused on the basis of previous historical settlement9 December 2019 | Procedure
A plaintiff has failed to set aside a settlement entered into prior to recent changes to limitation legislation for victims of child abuse. The application arose in the context of legislative change to the Limitation Act 1969 (NSW), abolishing limitation periods for victims of child abuse.
- The issue for the court was whether a Deed entered into in respect of a previous settlement with the defendant was valid.
The plaintiff alleged that he suffered historical sexual abuse as a child by priests who were members of the defendant. He brought proceedings alleging personal injury as a result.
The plaintiff had previously brought proceedings in 2005 for the same injury, in which the defendant successfully established a limitation defence in the Court of Appeal. Subsequent to that proceeding, the parties entered into a settlement. On 16 October 2007, the plaintiff entered into a Deed of Release (the Deed) with the defendant where the parties agreed that, in exchange for a payment of $95,000, he would release and discharge the defendant from 'all actions, suits, claims and demands of every description past present and future relating to or arising from the Claim or the Complaint or any other matters set out in th[e] Deed'.
Following recent amendments abolishing limitation periods for historical sexual abuse, the plaintiff again brought a personal injury claim. The defendant pleaded the Deed as a bar to the action. The defendant in turn sought a declaration that the Deed was valid and extinguished any liability the defendant had to the plaintiff.
The plaintiff responded with a number of contentions, including that it had not been the intention of the parties that the Deed prevented the plaintiff approaching the defendant for further assistance, that he was misled by the defendant in respect of his entitlements under the settlement, that he was vulnerable and negotiated without legal advice at the time, and that he lacked capacity to enter the Deed and the defendant had applied undue influence.
The Decision at Trial
The court found that each of the plaintiff’s contentions about the validity of the Deed failed. The court held that it was the intention of the parties that the plaintiff surrender his future legal rights as a result of the settlement, including in respect of causes of action he might not be aware of, such as the subsequently enacted limitation legislation. It was also held that the plaintiff did not lack capacity when entering the Deed, nor did the defendant act unconscionably in the circumstances of entering into the Deed. The reasoning in part included that an independent facilitator had been involved in the negotiations, and the plaintiff had at times had legal representation, including in signing the Deed.
Implications for you
The case is a reminder of the benefits of a properly worded Deed of Release in any settlement, particularly with regard to future claims.