Recent Changes in Law for Institutional Abuse
The findings of the Royal Commission into Institutional Responses to Child Sex Abuse, which handed down its final report in 2015, significantly changed the landscape for survivors of childhood sexual abuse in Australia.
While money is no substitute for the horrific personal violations many people suffered as children in schools, church organisations, foster homes, hospitals and other settings, the creation of a tailored compensation scheme for victims was a welcome result of the Royal Commission.
The establishment of the National Redress Scheme from July 1, 2018, allowed survivors of institutional child sexual abuse prior to that date to become eligible for counselling, a redress payment, and a direct personal response from an institution, such as an apology.
Another outcome of the Royal Commission was the abolishment of the three-year time limit on making a common law institutional abuse claim, meaning no time limit now applies to bringing this type of claim in Australia.
Additionally, a number of large jurisdictions, including NSW, Victoria and Queensland, have amended relevant legislation to extend the definition of abuse to include serious physical and psychological abuse, as well as sexual abuse.
The changes included removing the three-year limitation period applying to civil compensation claims for the wider meaning of child abuse, allowing historical claims for serious physical abuse.
At the outset, it’s important to note that if a survivor accepts a lump sum under the National Redress Scheme, a damages claim can no longer be brought in certain states.
In NSW, changes have been enacted. The Civil Liability Amendment (Child Abuse) Act 2021 (Amendment Act), which has the effect of amending the Civil Liability Act 2002 (CLA).
The Amendment Act provides for significant changes to the way that institutional child abuse claims are managed and determined. It is now possible to set aside certain settlements, including redress settlements deemed too low and restrictions that previously applied to offenders in custody have been removed.
More detail on this type of claim
Under the National Redress Scheme, a maximum payout of $150,000 is available but a separate, common law institutional abuse claim may see a person awarded a much larger sum of compensation.
This type of claim relies on your legal representative proving the institution or organisation where the abuse occurred was negligent in allowing it to take place. The damages amount is decided by the court taking into account the severity and type of the abuse the claimant suffered, the evidence of its impact on his or her life, and the pay-outs awarded in earlier, similar cases.
An institutional abuse claim can also be made by anyone who suffered childhood sexual abuse, compared with the National Redress Scheme that involves applying eligibility criteria before an abuse survivor can make an application for payment.
The claim can be made for:
- pain and suffering;
- past and future medical and other expenses;
- past and future loss of income;
- care and domestic assistance provided on a voluntary and paid basis;
- loss of capacity to provide domestic services to a dependent.
The challenges involved in an institutional abuse claim
Committing to making a compensation claim for institutional abuse is, in the case of most survivors, an incredibly difficult thing to do. Each case is different but for many survivors, the abuse occurred a long time ago. Many people have tried to bury the experience out of shame, guilt or just a desire to put it behind them. Pursuing a claim for compensation not only resurrects many painful memories but carries the risk of not being believed.
Many survivors worry about whether they have enough evidence to make a claim, particularly where they feel they only have their version of events to rely on.
Experienced lawyers who’ve represented many survivors of institutional abuse over a number of years, such as our team at Gajic Lawyers, know how to tell your personal story so that it forms the heart of your compensation claim.
Through medical records and records held by the institution/s where the abuse is alleged to have occurred, we can present your experience in the most compelling way.
Claimants need to be aware that this process can take a year or more to occur.
While limitation periods on childhood sexual abuse claims have been abolished around Australia, and also on the wider definition of abuse (including serious physical and psychological abuse) in certain Australian jurisdictions, an institution accused of allowing childhood sexual abuse may still argue before the court that a survivor’s claim should not proceed because the alleged events occurred so long ago, there is no longer enough evidence available to enable a court to properly assess the claim.
Having experienced institutional abuse lawyers in your corner is vital in challenging this claim by an institution.
Most institutional abuse claims do not make it to court but are instead settled through mediation or other dispute resolution methods. Gajic Lawyers has proven experience in conducting negotiated settlements with institutions and organisations alleged to have allowed historical abuse.
Discuss your case confidentially with Gajic Lawyers
Wherever you’re located in Australia, we have the team to help you make this unique, challenging type of claim.
While the historical nature of many claims can seem like an insurmountable obstacle, and the pain associated with recounting the experience can make a survivor wonder if it’s all worthwhile, the understanding, experienced and empathetic professionals at Gajic Lawyers will be with you every step of the way.
To learn more about compensation claims, contact us Adelaide Compensation lawyers team today.
