I move amendment No. 2:
In page 3, before section 2, to insert the following new section:
"2.-The Statute of Limitations, 1957, is hereby amended by the insertion of the following section after section 48:
'48A. (1) A person shall, for the purpose of bringing an action-
(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age, or
(b) against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act,
be under a disability while he or she is suffering from any psychological injury that-
(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and
(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.
(2) This section applies to actions referred to in subsection (1) whether the cause of action concerned accrued before or after the passing of the Statute of Limitations (Amendment) Act, 1999, including actions pending at such passing.
(3) This section is in addition to and not in substitution for section 48 of this Act.
(4) In this section-
"an act of sexual abuse" includes-
(a) any act of causing, inducing or coercing a person to participate in any sexual activity,
(b) any act of causing, inducing or coercing the person to observe any other person engaging in any sexual activity, or
(c) any act committed against, or in the presence of, a person that any reasonable person would, in all the circumstances, regard as misconduct of a sexual nature:
Provided that the doing or commission of the act concerned is recognised by law as giving rise to a cause of action;
"full age" means-
(a) in relation to a person against whom an act of sexual abuse was committed before the commencement of the Age of Majority Act, 1985, 21 years, and
(b) in relation to a person against whom an act of sexual abuse was committed after such commencement, full age within the meaning of that Act.'.".
The amendment addresses the issues at the heart of the Bill on three levels - policy, legal-technical and drafting. I note Deputy O'Sullivan has tabled a small number of amendments to this amendment. These are of a policy nature and concern also technical or drafting matters. The approach signifies that while there remains some difference, there is nonetheless a broad acceptance between us of the technical shape the Bill should take to meet its objectives.
On Second Stage I made clear that the Government had carefully considered the best approach which should be taken in relation to questions of changes in the law and limitation periods in cases of child abuse. The Government is satisfied that the case for amending the statutes as they apply in cases of sexual abuse in childhood is unanswerable. We are happy to support the principle of this Bill to the extent that it changes the law in relation to those who, because of sexual abuse in childhood, have been unable to bring themselves to commence civil proceedings relating to that abuse within the normal time limits of the statutes.
In relation to other forms of childhood abuse, the more complex questions involved have been referred by the Attorney General to the Law Reform Commission for research and recommendations. That body has recent experience in dealing with other aspects of limitation law, by any standard a highly technical legislative area. It was the recommendations of the commission on the matter which led to the amending legislation of 1991 under which the ground-breaking rule of discoverability was introduced. That rule is to the effect that the three year limitation period for actions in respect of personal injuries arising out of negligence, nuisance or breach of duty, which normally runs from the date of accrual of the cause of action, starts to run against a person who has been injured but who was not aware of the injury at the time, from the point where that person became aware of or could reasonably have become aware of the relevant facts.
The commission also has considerable experience of the particular human problems of child abuse, having produced a landmark report on the topic in 1990 which led to important changes in the criminal and civil law. The Criminal Evidence Act of 1991, the Domestic Violence Act of 1996 and the Children Act of 1997 contained provisions inspired by the recommendations in that report. The commission has facilities to conduct research into legal and other aspects of the matter, drawing on the laws and expertise available both locally and abroad.
I do not wish to anticipate the results of the commission's researches and whatever consultative process it may engage in before arriving at its conclusions on the matter. It may be that the commission will recommend an approach similar to that taken in this Bill. It is possible that it may recommend a different course in line with, say, the experience in other jurisdictions. Whatever approach is recommended, however, Deputies may take it that the Government will deal with the Law Reform Commission's report on this matter in the proactive way that has characterised our approach so far to the other aspect of the problems that victims of abuse in childhood are facing. We have acted promptly by accepting the principle of this Bill as it relates to sexual abuse cases and we will act equally promptly on the commission's report when it becomes available. It follows that I will oppose Opposition amendments Nos. 1 and 2 to the Government amendment because they seek to extend the scope of the new section to cases of physical as well as sexual abuse. Likewise, I oppose the related amendment which seeks to make the same change in the long title.
I turn now to the detail of the Government's proposals for amendment of section 2. The Government's amendment at subsection (1)(a) of its proposed section 48A of the 1957 statute refers to an act of sexual abuse. The expression "an act of sexual abuse" is defined at the new subsection (4). This has been carefully and sensitively drafted to ensure that the courts and potential litigants will be clear as to the sort of activity encompassed by this provision. The main features of that definition are as follows. The act must be such as is recognised by law as giving rise to a cause of action. Acts encompassed include causing the victim to participate in or observe sexual activity. Also included are acts committed against or in the presence of the person which meet the test of what a reasonable person would regard as sexual misconduct.
I note that Opposition amendment No. 6 takes a somewhat different approach to the definition but I will deal with that later when the amendment is moved.
From the point of view of legal technicalities, the Government amendment addresses a number of points. The first matter concerns the scope of the disability. As framed, the Bill would permit a person to bring a late claim in respect of, say, a car accident or even the sale of defective goods on the basis of a disability in relation to child sex abuse at the time the accident occurred or the purchase was made. I mentioned this in my Second Stage contribution and my understanding, from the reaction of Deputy O'Sullivan, the promoter of the Bill on that occasion, was that such a sweeping effect is not her intention. To ensure that the intention is met the Government amendment provides that the disability is only for the purpose of the pursuit of proceedings arising out of the abuse and ensures that it does not extend to all other forms of legal proceedings to which the concept of disability under the statutes of limitation applies by virtue of section 49 of the Act of 1957.
The second point concerns the nature of the injury resulting in a disability. The Bill, as framed, uses the expression "emotional or mental" to describe the injury which results in an inability to institute proceedings within the normal timeframe. The Government amendment instead proposes what I consider to be the more appropriate expression, namely, psychological injury. That expression is used, for instance, in the Domestic Violence Act of 1996 to encompass the mental and emotional welfare of the victim of domestic violence. I am satisfied that the expression "psychological injury" better expresses the type of injury that is in question in the Bill.
The third point about which I have concerns is the link between the disability and the abusive act. The Bill requires that the injury resulting in the inability to proceed within the normal limitation period be attributable to the act of abuse. The Government amendment uses instead the expression "caused by", conveying a more defined nexus between the disability and the perpetrator's act. The amendment also provides for a possible causal link between the disability and any other act of the perpetrator. This covers the situation where the person's inability to pursue a claim is caused not by the abuse of conduct but, for example, by a threat made by the perpetrator against the victim or against some other member of the victim's family warning him or her against going to the authorities.
The fourth point I want to address concerns the age of the victim. The Bill covers abusive acts when the victim was a child, but it does not define the age range intended to be covered. The Government amendment proposes to encompass abusive acts committed against a person not of full age. The concept of full age is defined by the Age of Majority Act, 1985 as the attainment of 18 years or earlier marriage. Before that Act came into force, full age was reached at the age of 21. The concept of full age should be preferred in the context on the basis that a person not of full age is already under a disability for the purpose of the statute of limitations. The definition of full age provided for in the Government amendment takes account of the pre-1985 as well as the post-1985 position. This ensures the disability concept will apply in respect of abusive acts committed before the commencement of the 1985 Act against a person of up to and including 20 years of age.
My final main point concerns the retrospective effect of the provisions in the Bill. The most recent amendment of the statutes of limitation in the Act of 1991 provided, at section 7, for the application of the new provisions ". . . to all causes of action accruing whether before or after the passing of that Act and to proceedings in being at the time of its passing". This provision was made in accordance with a recommendation of the Law Reform Commission in a report which formed the basis of that Act. An analogous provision has not been provided for in the Bill as framed, but I am sure Deputies would readily agree it is necessary to avoid it being interpreted as not being retrospective in its application to cases which arose before the passing of the Bill. Subsection (2) of the Government amendment to section 2 proposes the required change. It can be argued that the provision of the 1991 Act and, by extension, the analogous provision in the Government amendment, might be the subject of challenge on the basis that it could be regarded as retrospectively worsening the position of a defendant who has filed the defence. The arguments in favour of the provision, however, outweigh those against in this instance. It would appear inconsistent for the Oireacthas to have provided, as it did in section 7 of the 1991 Act, a provision which has never been challenged and yet deliberately not so provide in relation to the directly analogous provisions of this Bill.
If the policy and technical-legal changes, which I suggested should be made to section 2 are acceptable, it follows that certain further drafting changes should be made. The principal drafting change would be the incorporation of my amendment as a new section of the 1957 statute rather than as an amendment of any existing provision. This has merit because it helps to reinforce the distinction between the nature of the new provision and existing provisions in the law.
Deputies will appreciate it is important that the Long Title should encompass specifically the scope of the Bill. Since my amendments affect certain aspects of the scope of the Bill as framed, it is necessary to reflect these amendments in the Long Title. I am advised by the draftsman that the Long Title contained in Government amendment No. 5 follows correctly the scope of the Bill based on the various other Government amendments. I oppose the amendment to this amendment, which seeks to introduce the reference to physical abuse into the Long Title for the reasons I outlined.
In this contribution I have not, by and large, addressed the various amendments to the Government amendment tabled by Opposition Deputies. It might be better if I left commentary on the detail of those amendments until the proposers of them have made their contributions and I will gladly respond to them.