For survivors of child sexual abuse in institutions in Australia such as schools, churches, juvenile detention, and government care, seeking justice and compensation can be a complex and emotionally challenging process. There are two primary avenues available for survivors to seek compensation – a common law claim for damages (civil litigation) and the National Redress Scheme. There are significant differences between the two, and it is important to understand your options before making a choice. This article will provide an overview of civil litigation and the National Redress Scheme, their differences, and discuss why civil litigation may be a preferable option for many survivors.
If you are a survivor of institutional abuse, you may be eligible for compensation. Contact our expert Institutional Abuse Lawyers today.
Understanding a Common Law Claim (Civil Litigation)
Civil litigation is the process of taking a legal claim to court. A common law claim for damages is based in tort and involves a process of suing the institution responsible for the abuse or, in some cases, the perpetrator directly. Additionally, there are a number of mechanisms across various jurisdictions in Australia that allow civil claims for historical child sexual abuse to be pursued “informally”, with the intention of resolving the claim before formally commencing proceedings in a court.
The Legal Framework
In recent years, Australian laws have evolved to better support survivors of institutional child sexual abuse. Key legislative changes include:
- Removal of limitation periods: All Australian states and territories have removed time limits for bringing civil claims related to child sexual abuse. For example, in New South Wales, the Limitation Amendment (Child Abuse) Act 2016 abolished the limitation period for these cases.
- Duty of institutions: Legislation such as the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 in NSW has introduced a statutory duty of care for institutions, making it easier for survivors to establish liability.
- Vicarious liability: Courts have expanded the concept of vicarious liability, making it easier to hold institutions responsible for the actions of their employees or agents.
Advantages of Civil Litigation
- Uncapped compensation: Unlike the National Redress Scheme, which caps payments at $150,000, civil litigation has no upper limit on compensation amounts. This allows for potentially higher payouts that more accurately reflect the individual’s suffering and losses.
- Comprehensive damages: Civil claims can address a broader range of damages, including:
- Pain and suffering;
- Past and future economic loss;
- Medical expenses (past and future);
- Aggravated and exemplary damages.
- Sense of Justice: A successful civil claim establishes legal liability, which can provide a sense of justice and vindication for survivors.
- Flexibility: Civil litigation can address various forms of abuse, including physical and emotional abuse, which may not be covered by the National Redress Scheme.
- Individualised approach: Each survivor’s experience is unique. Civil litigation allows for a tailored approach to the specific circumstances of each case, ensuring that all aspects of the abuse and its impacts are considered.
Challenges of Civil Litigation
While civil litigation offers significant advantages, it’s important to be aware of potential challenges:
- Complexity and duration: Civil cases can be lengthy and complex, potentially taking years to resolve. However, experienced legal teams can navigate these complexities efficiently.
- Emotional toll: The legal process can be emotionally demanding. A trauma-informed approach by legal professionals can help mitigate this challenge.
- Costs: While many law firms offer ‘no win, no fee’ arrangements, there may still be out-of-pocket expenses and the risk of paying the defendant’s costs if the case is unsuccessful.
- Burden of proof: Survivors must prove their case on the balance of probabilities, which can be challenging, especially for historical cases. Our skilled Institutional Abuse Lawyers can assist in gathering and presenting the necessary evidence.
The National Redress Scheme: A Brief Overview
The National Redress Scheme was created following recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. It started on 1 July 2018 and is set to continue until 30 June 2027.
While the scheme offers some advantages, such as a simplified process, lower evidentiary burden, and protected payments, it has significant limitations:
- Capped payments: The maximum payment under the scheme is $150,000, which may be substantially less than what could be obtained through civil litigation.
- Limited scope: The scheme only covers sexual abuse and related non-sexual abuse. It does not address physical or emotional abuse that is not connected to sexual abuse.
- Exclusions: Some survivors may be ineligible due to factors such as being incarcerated, serious criminal convictions, or not being an Australian citizen or permanent resident at the time of application.
- Time limit: Applications must be made before the scheme closes on 30 June 2027.
- Waiver of rights: Accepting an offer of redress requires signing a deed of release, waiving the right to pursue civil litigation against the institution for the same abuse.
Making an Informed Decision
Given the complexity of both options, it’s crucial for survivors to seek independent legal advice before making a decision. While civil litigation offers significant advantages, particularly in terms of potential compensation and scope, the choice between civil litigation and the National Redress Scheme is deeply personal.
At Gajic Lawyers, we specialise in civil litigation for survivors of institutional abuse. We believe that for many survivors, civil litigation offers the best path to justice and fair compensation. We offer:
- Free Initial Consultation: We provide a confidential, no-obligation consultation to discuss your case and explain your options.
- Detailed Case Review: We perform an in-depth evaluation, crafting a strong legal approach specifically designed to suit your unique situation.
- Negotiation and Litigation Skills: Whether through out-of-court settlements or courtroom advocacy, we fight tirelessly for the best possible outcome.
- Ongoing Support: We provide regular updates and connect you with appropriate support services throughout your case.
- Experienced Representation: Our team has a proven track record in handling complex institutional abuse cases, with expertise in recent legislative changes and landmark court decisions.
Conclusion
The path towards justice and healing for survivors of institutional child sexual abuse is deeply personal. While civil litigation offers significant advantages in terms of potential compensation and scope, the choice between this path and the National Redress Scheme depends on individual circumstances and goals.
At Gajic Lawyers, we’re committed to empowering survivors in their pursuit of justice, healing, and fair compensation. If you or a loved one is a survivor of institutional abuse, consult with our expert Institutional Abuse Lawyers today. Our goal is not just to win cases, but to support you in reclaiming your life and holding institutions accountable for past wrongs.
Start your claim today with a confidential and free, no-obligation consultation.
