Understanding the legal options for survivors of institutional abuse

If you are a survivor of institutional sexual abuse, no amount of financial compensation can undo the pain you have experienced. In cases of abuse, psychological injuries are severe and almost always stay with survivors throughout their lifetime. As the Royal Commission into Institutional Responses to Childhood Sexual Abuse exposed, for too long many survivors either suffered silently or were forced to accept inadequate settlements and waive their rights to future claims. 

As a result of the Royal Commission, there have since been significant changes to the law. And now – for the first time ever – survivors of abuse have options as to how they seek compensation. Those options are:

  • a claim under the National Redress Scheme
  • a damages claim.

It’s important to know that once you accept a payment from the National Redress Scheme you can never bring a damages claim – even if a damages payment may have been higher. So it’s a good idea to do your research, to ensure you make the best decision for your circumstances. 

Here we explain more about the two avenues for compensation and explore the key differences.

What is the National Redress Scheme?

The establishment of a National Redress Scheme was a key recommendation of the Royal Commission. Simply, it aims to acknowledge harm done to survivors of sexual abuse Compensation can be awarded if the institution in which you were abused has signed up to participate, but there are limitations to the amount you will receive which, in many cases, is less than that of a legal claim. Importantly, if you seek a payment through the National Redress Scheme, you will never be able to make a legal claim.

The Scheme helps survivors of institutional abuse to seek:

  • a payment which is calculated according to the type of the abuse, and the type of institution in which the abuse happened – the maximum amount awarded is $150,000 (for the most severe cases)
  • a further small payment for psychological treatment
  • a request for a personal response from the institution responsible for the abuse. This could include an apology from a senior member of the institution, or an explanation of what that institution does today to protect children.

What is a damages claim?

Another recommendation from The Royal Commission was that governments around Australia introduce laws that allow survivors to bring legal claims, even if the abuse was many decades ago.

How the claim is brought can differ according to the State you live, but the principles are the same. Usually you can:

  • Claim for the actual impact the abuse has had on your life including loss of earnings, past and future
  • Claim for the pain and suffering you’ve endured
  • Be reimbursed for treatment you have paid for and/or receive a sum to allow you to get treatment in the future
  • Seek a personal response from the responsible institution, including an apology.

Seeking damages is a legal claim; which means a lawyer will gather evidence to prove the institution a survivor was abused in was negligent. A lawyer with lots of experience in running these claims may already have won claims for other survivors from the same institution.

What are the key differences?

Compensation

One of the key benefits of a legal claim for damages is they are not capped at $150,000 as under the redress scheme and, in most cases, will be worth considerably more. Your payments are calculated in accordance with how Judges have calculated other payments for survivors. And these payments can be hundreds of thousands of dollars.

Under the National Redress Scheme, the maximum payment you can receive is $150,000. However this maximum amount can only be achieved by survivors who suffered the most severe abuse – in an institution where their living arrangements made the abuse easier to occur. Many survivors will not qualify for this payment, even if their abuse was severe and the impact has lasted a lifetime.

Exclusions

Not everyone is eligible for the National Redress Scheme. If the institution where a survivor was abused hasn’t signed up to the scheme voluntarily, it can’t be forced to join. As a result, anyone abused in that institution is not eligible. You are also not eligible if:

  • you are not an Australian citizen or permanent resident
  • you are in jail
  • you have ever been sentenced to a jail term of five years or more.

On the other hand, anyone is eligible to make a damages claim – unless they have already accepted a payment through the Redress Scheme. If you have questions about eligibility a lawyer can help you understand your options.  

Time limits

Because the National Redress Scheme is new, claim processing times aren’t clear. In its first year of operation, around 4,000 survivors applied for compensation, but only 215 received payments, though it is hoped this will speed up as the Scheme progresses. The Scheme will run for 10 years, and will stop accepting applications on 30 June 2027.

As a result of new legislation, there is now no time limit on when a damages claim can be brought. Importantly, you will still be able to make a damages claim after the Redress Scheme closes - but not if you have already accepted a Redress payment.

More information

If you would like some more information on either of the options available, our lawyers can provide advice about your legal options. It doesn’t cost you anything to find out where you stand.

For more information on making a damages claim, see: https://www.mauriceblackburn.com.au/injury-law/abuse-law/

 

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Michelle James

Maurice Blackburn Brisbane
Michelle James is a personal injuries compensation Principal in Maurice Blackburn’s Brisbane office and the head of our national Abuse law litigation practice. Michelle has been working in the legal industry since 1998 and is a tenacious fighter for the rights of individuals. She ...

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