There has been significant legal change in recent years affording survivors of childhood abuse the right to pursue compensation for the harm they have suffered.
Survivors are now able to choose whether they would like to pursue compensation through the National Redress Scheme or alternatively instruct a lawyer to assist them with a civil claim for compensation. The aim of this article is to inform survivors of some key differences between these two legal avenues.
The National Redress Scheme (“the Scheme”) permits survivors of childhood sexual abuse to submit an application for compensation. Survivors of serious childhood physical abuse are not eligible to make a claim through the Scheme.
The Scheme is an informal process whereby the survivor liaises solely with the employees of the Scheme. They do not interact with the institution or entity responsible for the abuse.
The Scheme caps payments at $150,000.00, though it is noted that the average payment is expected to be half of same. The Scheme utilises a “matrix” which details varying levels of abuse to determine the compensation a survivor is entitled to. The Scheme has a lower threshold of proof and they only need to be satisfied that there was a “reasonable likelihood” that the abuse occurred. Once a survivor accepts an offer of settlement they will sign a legal document and forfeit their rights to make any further claims against the institution or entity responsible for the abuse.
It is important to note that not every survivor will be eligible to make a claim via the Scheme. The institution or entity responsible for the abuse must have joined the Scheme. Survivors who have been convicted of a crime and received a single sentence of imprisonment of five years or more are not automatically eligible to make a claim through the Scheme. They will need to complete a special assessment process to determine if they will be permitted to make a claim through the Scheme.
Survivors who are currently incarcerated are not generally permitted to apply to the Scheme until they are released unless special circumstances exist.
Legislative changes which came into effect in 2016 now permit survivors of childhood sexual abuse and serious physical abuse to pursue civil claims for compensation. These claims do not have the same compensatory restrictions as the Scheme. Survivors are able to claim for many different types of compensation as a result of the injuries they have suffered from the abuse including economic loss, out of pocket expenses, pain and suffering and care and assistance. In addition, the institution or entity responsible for the abuse will also contribute to a portion of the survivor’s legal costs incurred during the claims process.
If a survivor’s civil claim is successful they will almost certainly receive a much higher award of compensation than that offered through the Scheme.
Civil claims are more complex and require the assistance of an experienced lawyer. A survivor’s lawyer will liaise directly with the institution or entity (or their legal representative) and obtain evidence as to the incidents of abuse and loss and injury suffered.
Once the survivor’s lawyer has obtained the necessary evidence, they will arrange an informal settlement conference. This conference will be an opportunity for the parties to meet to try and resolve the matter. Many matters are able to be resolved at this conference without the need to file Court proceedings.
If the matter is not able to be resolved, the survivor’s lawyer will file Court proceedings. It is important to note that there is ample opportunity to resolve a matter before it reaches a trial including a Court mandated mediation. Only a small number of matters will ever reach a trial.
Do you need help?
We recognise that survivors of childhood abuse are strong individuals who deserve the right to seek compensation for the harm they have suffered. We also understand that it can be difficult to know which pathway is the right one to choose. It is important to speak with a lawyer who is experienced in institutional abuse matters prior to accepting any offer of settlement.
Turner Freeman has a number of lawyers located throughout Australia with experience in institutional abuse. We invite survivors to contact our Sydney office on (02) 8222 3333 for a confidential and obligation free discussion to help inform them as to their rights and legal options.