Abuse, Psychology and Limitation Periods: The Limitation Act 2010 Is Not the Solution

Abstract

The recently passed Limitation Act 2010 attempts to remedy the injustice that limitation periods have caused for childhood abuse survivors. Psychological research shows that most survivors of childhood abuse do not disclose the abuse until many years later because of the long-term psychological effects of the abuse. It may not be until decades later that the abuse survivor recognises they were abused, connects the abuse to later psychological harm, or confronts the feelings of fear, shame or guilt and is able to pursue a claim. Limitation laws in New Zealand have not adequately taken this into account. The 1950 Act did not contemplate this problem and while the judiciary has inventively used the reasonable discoverability doctrine to allow extensions of time, it is well accepted this has been failing. Most claimants have been time-barred from bringing civil proceedings before they even realised they had a claim. The solution in the 2010 Act is a discretionary approach based on United Kingdom law. Courts will be able to award a remedy for claims of childhood abuse if it is just, even if a limitation defence can be made out.