The Royal Commission into Institutional Responses to Child Sex Abuse, which handed down its final report in 2015, shone a torch on troubling revelations about child abuse in some of our most trusted institutions going back decades.

In schools, clubs, sports organisations, childrens’ home, health settings and more, sexual, physical and emotional abuse had life-long impacts on those who suffered it, and caused others to end their lives in the most tragic of cases. Many victims take decades to come forward and publicly recognise what happened to them while many others suffer in silence and never acknowledge the abuse.

A significant outcome of the Royal Commission was the establishment in 2018 of a compensatory scheme for people who’ve suffered institutional abuse. The National Redress Scheme – while recognising that no amount of money can adequately compensate for the psychological damage done to a person who suffered abuse – can provide some justice to victims by providing funds, counselling and, in some cases, an apology from the institution where the abuse occurred.

In addition to the national scheme, survivors still have the option of pursuing common law damages through civil litigation in the courts. A damages claim against an individual or an institution requires addressing the elements of negligence to prove the person’s harm was caused by the abuse they suffered. The different paths to compensation are discussed in this article.

More detail on the National Redress Scheme

The scheme was established in response to the recommendations of the Royal Commission in 2015. It provides survivors of institutional abuse with a structured, non-adversarial process to seek compensation and support. 

Some eligibility criteria applies to an application under the scheme:

• 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 victim was in the care of an institution that participates in the redress scheme at the time of the abuse;
• the applicant must be an Australian citizen or permanent resident.

Key features of the scheme include:

Compensation payments: Survivors who meet the eligibility criteria can access a payment as compensation for the harm suffered. The payment amount is determined based on a set framework within the scheme, paid on an individual basis and can range from under $10,000 up to $150,000. Where a survivor has received earlier payments from a court-awarded damages payout, victims of crime or out-of-court settlement – known as a ‘relevant prior payment’ – those amounts will be deducted from a payment under the scheme. The scheme is legislated to run for 10 years until June 30, 2027.

Counselling and support services: The scheme offers access to counselling, psychological services, and other forms of support to assist survivors in their healing journey.

Apologies and recognition: Institutions participating in the scheme are encouraged to provide formal apologies and acknowledgment of the abuse suffered by survivors.

The contrast with the process of seeking common law damages

In addition to the redress scheme, survivors of historical abuse may seek compensation through the courts for the negligence of the institution that allowed the abuse to be perpetrated.

Unlike the statutory scheme, a survivor must pursue a damages settlement by engaging in the appropriate legislative pre-court process prior to commencing court proceedings. If the matter ends up before the Court, a Judge  will assess compensation based on the specific circumstances of the case, including the severity of the abuse, the impact on the survivor's life, and any ongoing physical or psychological harm.

A Judge will consider the economic loss suffered by the victim (lost wages and super, for example), as well as non-economic loss – pain, suffering and future care needs when determining the damages. For these reasons, the amount awarded is potentially much larger than monetary payments available under the redress scheme.

Key considerations for survivors

It’s important to note that an abuse survivor who seeks and obtains a payment under the redress scheme is prevented from pursuing a common law claim for compensation from the institution. In situations where multiple institutions were responsible for the abuse but did not contribute to court-awarded damages, it may still be possible to receive redress on behalf of the other institutions.

Where a survivor is uncertain about whether to pursue compensation under the National Redress Scheme or common law damages, some of the following factors need to be considered:

Timelines: The National Redress Scheme offers a quicker, more streamlined process compared with legal proceedings through the courts, which can be both lengthy and expensive.

In Queensland, a person making an historical abuse claim is required to do so in line with the Personal Injuries Proceedings Act 2002 (Qld) (‘the Act’) which sets out a pre-court process for both parties. In this process the person claiming harm first serves a Notice of Claim on the institution and/or individual they believe responsible for the loss and damage they have suffered due to the abuse. A mediation process then commences to seek to avoid costly court proceedings.

Where agreement can’t be reached, the parties will then be required to commence litigation. That is, the the person claiming harm will be required to commence court proceedings in the relevant Court. There are a number of steps required to be taken before the matter is heard before the Court and ample opportunity for the parties to resolve the matter informally and to avoid the costly process of going to trial. Ultimately, very few matters actually end up before a Judge.

Burden of proof: The burden of proof in a common law claim rests with the survivor, requiring them to establish a duty of care, breach of that duty, and causation of their injury by that breach through evidence. This can be particularly difficult in ‘historical’ cases where people have died, documents have been lost and the memories of relevant individuals are unreliable. The redress scheme, by contrast, requires a lower evidentiary threshold, making it potentially more accessible for survivors. The scheme also does not require survivors to bear the considerable burden of legal fees.

Uncertain? Seek expert legal advice

Seeking compensation for historical abuse is generally a complex and time-consuming process, not to mention presenting a considerable emotional and psychological challenge for the survivor. By entrusting your case to legal professionals with experience and expertise in historical abuse cases, the stress and uncertainty of pursuing compensation can be reduced. At Lifestyle Injury Lawyers we help survivors make informed decisions and provide dependable guidance whichever pathway the abuse victim chooses to seek the justice they deserve.