Lawcovernotes March 2017

9. A key distinction between the civil and criminal jurisdictions is that, in the former, assault is a tort and the Limitations Act 1969 applies. Any civil action for damages must be commenced in NSW within six years of the alleged act the victims are minors in which case there is no limitation period. Lawcover has recently received notifications from insured solicitors relating to out-of-time civil damages claims for sexual assault; just as for many years we have received notifications regarding out-of-time damages claims against other tortfeasors, such as occupiers and employers. Solicitors should keep in mind, however, that sexual assault is a tort of intent so that time runs from the date of the assault, and the flexibility of discoverability issues available in other personal injury cases is not applicable. The courts have tended to look favourably on applications to extend the limitation period, but this is at the judge’s discretion. Notably, the Civil Liability Act 2002 does not apply to civil liability for sexual assault. When considering a client’s case for civil damages for sexual assault, a solicitor should of course investigate and evaluate the evidence, understanding that the onus of proof is more favourable to the plaintiff in the civil than in the criminal jurisdiction. Even if the State is unable to establish the alleged perpetrator’s guilt beyond reasonable doubt, a civil case for damages may still succeed on the balance of probabilities. After carefully assessing all evidence, the solicitor should consider the wrong-doer’s ability to pay damages and take this into account when the advising client. No client wants a large bill for legal work which, even if successful, has no positive result for them. However, given the client’s likely emotional state, they might find the possibility of bankrupting the perpetrator attractive if they have sufficient means to do so. The solicitor should seek very clear instructions on how and on what terms the client wishes them to proceed, understanding that Lawcover will not cover claims in relation to disputes over their fees. Advice to the client should be recorded in file notes and ideally written advice, with the client’s instructions recorded at the same time. Emma Griffith Solicitor Lawcover is seeing an increase in notifications about claims for civil liability for assault, specifically sexual assault. It is timely therefore to emphasise the need for care when taking on a client seeking damages in suchmatters.