In recent years a fierce spotlight has been shone on abuse in some of society’s most respected institutions. During the Royal Commission into Institutional Responses to Child Sex Abuse, which handed down its final report in 2015, shocking instances of abuse in churches, schools, sports clubs and other institutions were revealed.
The Royal Commission resulted in a national redress scheme to compensate victims commencing in 2018 but in reality, no amount of money can compensate for the psychological damage done to a person who has suffered abuse within an institutional setting.
Victims of physical and emotional abuse, particularly suffered in childhood and adolescence, can take decades to reveal details of what happened to them. Many never do. Victims speak of extreme self-loathing and shame as among the reasons they keep knowledge of the abuse to themselves. Others find that their unseen ‘injury’ is misdiagnosed or downplayed by specialists. The process, then, of coming to terms with the admission they were abused is generally long and painful.
For these reasons the issue of compensation for survivors of institutional abuse is sometimes a complex legal issue. Because of the long time periods between, in many cases, the incidents of abuse and the revelation by the person abused, reliable memories, documents and other records to support a claim can all prove challenging.
What are the options for survivors of institutional abuse?
Creation of the National Redress Scheme as a result of the Royal Commission was a major step forward for survivors of institutional abuse. It exists alongside the ability of survivors to make a common law claim for damages from the individuals or organisations who perpetrated or facilitated the abuse – though it should be noted both claims cannot be made at the same time.
While the redress scheme was widely welcomed, it is important to note it is limited to those who can meet extensive eligibility criteria. The maximum payout available under the National Redress Scheme is also $150,000, while a successful common law damages claim could potentially result in a much larger sum of compensation. The scheme will stop taking applications in 2027 and is also expected to undergo significant changes as a result of administrative delays and claims it has not adequately met the needs of survivors.
Common law claims
A common law claim for compensation for institutional abuse seeks a monetary amount for the pain and suffering the victim has experienced, the costs of medical treatment associated with the injury, loss of income or earning capacity, and an apology from the institution that failed in its duty of care to protect the survivor.
As in any compensation claim, the injury must have been reasonably foreseeable, and the defendant must have breached its duty of care and thereby caused the injury. Therefore it must be shown that the institution knew or ought to have known the abuse was possible and took no action to protect the victim. This can be challenging to prove in historic claims where key people within institutions have passed, are elderly or infirm, and where records and other documents may no longer exist or be lost.
One result of the Royal Commission was that statutory time limits in Australia’s states and territories for bringing legal action in relation to institutional childhood sexual abuse and serious physical abuse were abolished.
No time limit now applies to bringing a compensation claim for institutional childhood sexual abuse and, in most jurisdictions, actions for other types of mental and physical abuse of a child as well.
As mentioned, the challenge in institutional abuse claims is that a defendant may argue a victim’s claim should not proceed because the alleged events occurred so long ago that there is no longer enough evidence available to enable a court to properly assess it.
The essential need for specialist legal advice
Because of the particular complexities of this type of compensation claim, the guidance of experts in this area of law is essential.
From sensitive treatment of the victim’s written testimony to the often painstaking process of gathering affidavits from other witnesses and sourcing official records under Freedom of Information requests, the process of putting together a compensation claim in institutional abuse claims requires attention to detail and expert eye.
And while in some cases the challenges involved in the claim may seem insurmountable, a negotiated settlement with the institution or organisation who allowed the abuse may still be possible.
At BPC Lawyers, personal injury lawyers understand the unique nature of this type of claim and how difficult it is for a survivor to commit to what can be a grueling process. Sydney Compensation lawyers will handle your matter with the utmost empathy and compassion.