In recent years, Australians have been confronted with revelations about child sexual abuse in some of our most trusted institutions. The Royal Commission into Institutional Responses to Child Sexual Abuse was a five-year inquiry that examined the history of abuse in educational institutions, religious groups, sporting organisations, state institutions and youth organisations. The findings of the final report of the commission, which was made public on 15 December 2017, in combination with some recent high-profile Court cases, have exposed the life-long damage that results for victims who experience such abuse.
One significant outcome of the Royal Commission was the establishment in 2018 of a National Redress Scheme for people who suffered institutional child abuse. Whilst no amount of money can compensate for the psychological damage caused to a person who was abused at such a vulnerable age, the scheme’s provision of funds, counselling, and in some cases an apology from the institution can provide some solace for victims.
However, another avenue of redress for victims is a claim for common law damages. For this type of claim to succeed, negligence in observing a duty of care towards the abused must be proven.
It can be daunting for victims to decide which avenue is best for them. We explore both options below.
National Redress Scheme
Under the National Redress Scheme, applications for redress are considered by independent assessor who decide on the appropriate levels of financial and other support such as counselling services. Payments are determined on a case-by-case basis and can range from under $10,000 to $150,000. If an applicant has received an earlier payment from a court-awarded damages payout, victims of crime payment or out of court settlement, this will be deducted from the payment under the scheme. The scheme will remain in force for ten years until 30 June 2027.
Some eligibility criteria applies to an application under the scheme; namely:
- The nature of the abuse suffered by the applicant must be sexual;
- The victim was under 18 years old at the time of the abuse;
- The institution where the abuse occurred must be participant of the redress scheme;
- The applicant must an Australian citizen or permanent resident;
It is important to note that a person who successfully obtains a payment under the scheme is then prevented from pursuing a common law claim for compensation from the institution.
Common Law Claim for Damages
The findings of the Royal Commission have prompted a change in the way in which victims of child sexual abuse can pursue a common law compensation claim against the responsible institutions.
Statutory time limits on making a claim have been abolished across Australian jurisdictions which allow historical cases of the abuse to be heard by the Courts. Additionally, earlier settlements of claims can be set aside or re-litigated in some states of Australia.
A common law claim requires the applicant to prove negligence on behalf of the institution against which the abuse occurred. The claim can compensate victims for:
- Pain and suffering experienced as a result of the abuse;
- Costs of past and future medical treatment in seeking psychological recovery;
- Payment for care and domestic services required as a result of incapacity caused by the abuse;
- An apology from the institution or organisation which facilitated the abuse;
Such a claim can only be made if the applicant has not received a payment from the National Redress Scheme.
Unlike common law claims, the National Redress Scheme does not provide for what can often be significant past and future economic loss as well as medical and like expenses. These can equate to a substantial sum under a common law claim and often exceed the amount payable under the National Redress Scheme.
Uncertain? Speak with a compensation specialist
Working out the best course of action can be a difficult and confronting decision for victims who are already processing overwhelming emotions. At BPC Lawyers, we are specialists who have advised many survivors of institutional abuse and the options available to them. With compassion and understanding, we will help guide you towards an outcome that will hopefully provide you with some peace and closure.