School’s settlement agreement with 1980’s victim of institutionalised sexual assault upheld despite changes to limitation period

16 September 2020

A former student of the Brisbane Grammar School, who settled a claim for damages for sexual assault prior to recent amendments to the relevant limitation period, has had his application to set aside that agreement and take the matter to trial dismissed.

In Issue

  • Whether it is just and reasonable for the settlement to be set aside.

The background

The respondent operated Brisbane Grammar School, which the appellant attended between 1986 and 1989. During his time at the school, the appellant reported that the school counsellor had sexually assaulted him. Several claims were brought against the school by former students (including the appellant) in 2001, in relation to sexual assaults by that counsellor. However, the claims were by this time barred under the Limitation of Actions Act 1974 (Qld), and consequently mediated. While the respondent accepted moral responsibility, it denied legal liability for the counsellor’s actions. A settlement agreement was reached between the appellant and the respondent in 2002.

Fast forward, and the limitation period for personal injury claims relating to child sexual abuse was retrospectively removed by the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) (the Amending Act). The Amending Act also introduced s48(5A), which allows settlement agreements previously entered into to be set aside, provided a court considers it just and reasonable to do so.

The decision at trial

The appellant sought leave of the Court to have the settlement agreement set aside, on the basis that it was just and reasonable to do so. The trial judge dismissed the application, relevantly holding that:

  1. the onus is on the applicant to establish ‘that it is “just and reasonable” to disturb the status quo and set aside the judgment or settlement agreement’.1
  2. The purpose of s48(5A) is to strike “a balance between the appellant’s interest in commencing a new claim where the result may be more favourable to him and the respondent’s interest in avoiding the costs and uncertainty of future litigation.”2
  3. a factor which may render it ‘just and reasonable’ to set aside a settlement agreement, is where that agreement is unfair because it was entered into after (or materially influenced by) the expiry of the limitation period.3

The trial judge found that the applicant’s settlement resulted from “fair, arms-length negotiations between two parties on equal footing, both appropriately represented”… and “was a fair settlement reflecting the factual and legal strengths and weaknesses of the parties’ respective cases properly assessed at that time by them”. The actual settlement amount “was not materially contributed to by any consideration of limitation defences”.4

The issues on appeal

  • Whether the most important factor to consider in a s48(5A) application is that settlement has been materially influenced by the expired limitation period.
  • Whether the settlement amount in this case was materially influenced by consideration of the limitation period then in effect.
  • Whether the trial judge placed excessive weight on the fairness of the mediation process.

The Decision on appeal

The Court of Appeal agreed that the primary purpose of the Amending Act was to ensure that the interests and causes of action of child sexual abuse victims were protected, and that their rights of action should prevail without restriction by limitation periods. However, the Court of Appeal considered that s48(5A) directly addressed the ‘supervening circumstance’ of a settlement, “after which the parties’ rights and obligations in relation to the claimed right of action have been replaced by rights and obligations under the … settlement.”5 The Court of Appeal rejected the appellant’s construction that, where a settlement has been entered into, then “regardless of the kind or degree of influence of expiry of the limitation period upon the settlement, the fact that there was such an influence necessarily must be given greater weight than any factor favouring refusal of the claimed order.” That limitation factor must have materially influenced settlement in order for it to be accorded greater weight.6

The Court of Appeal accepted the trial judge’s reasoning that the settlement, and importantly the discount applied to damages, was not in fact materially influenced by the expired limitation period in this case. The appellant conceded that the third ground of contention fell away if the Court of Appeal found the limitation period had no material influence on the settlement.

The appeal was dismissed with costs.

Implications for you

Despite the relatively recent abolition of the limitation period for child sexual abuse claims, respondent parties can rely on the terms of an appropriately drafted settlement agreement to defend an application under s 48(5A), provided the settlement process was conducted fairly and without adverse influence being exercised over the claimant in respect of the limitation period.

Update 21/05/21: An application for special leave to appeal to the High Court was refused on 20 May 2021.

TRG v The Board of Trustees of the Brisbane Grammar School [2020] QCA 190

1 Paragraph [12](a).
Paragraph [12](b).
Paragraph [12](g) - (h).
Paragraph [18].
Paragraph [28].

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