National redress scheme could leave claimants worse off, lawyers and survivors warn


Posted

June 01, 2018 07:07:10

As a number of organisations announce they will sign up to the Federal Government regime for compensating survivors of institutional child sexual abuse, potential claimants are being warned they could do better if they pursued their cases through the law courts.

On Wednesday, the Catholic Church became the first non-government institution to opt-in to the national redress scheme.

Scouts Australia, the Salvation Army, YMCA Australia and the Anglican Church announced on Thursday they would also join the scheme, which all states and territories except Western Australia have already signed up to.

Personal injury lawyers and a survivor of sexual abuse who fought against the Catholic Church for decades say they think the institutions that signed up believe the scheme will cost them less than if claimants sue for compensation in court.

Philip Nagle, who was sexually abused by a member of the clergy while he was at St Alipius Catholic school in Ballarat, says the church has a well-documented history of trying to minimise the impact that compensation claims have on the organisation.

“They always seem to take the way that will minimise any payments,” Mr Nagle told ABC’s Radio National.

The scheme announced by the Government was a major recommendation of the royal commission and will provide up to $150,000 to survivors of institutional child sexual abuse.

The national head of abuse law at Maurice Blackburn, Michelle James, said she expects the institutions that signed up to the scheme have modelled how much compensation pursued through the courts could cost them, and had concluded the redress scheme is the cheaper option.

“For many survivors, not all, their claim of negligence through the court system would lead to larger awards of damages,” Ms James said.

Personal injury specialist Angela Sdrinis also believes survivors will receive less through redress than they would through successful litigation, and points out that not everyone who seeks redress will get the full $150,000, because the average payment is expected to be around $76,000.

“I anticipate that there will be a number of survivors who get even less than that,” Ms Sdrinis said.

She says the cases that are strongest in terms of legal liability are those where the survivor is able to prove the institution knew that children were at risk of being abused but did nothing to protect them.

According to Ms Sdrinis, a handful of these cases have delivered compensation payouts of $75,000 and above for historical child sexual abuse claims.

Weaker cases would be those in which the victim could not identify their abuser, or could not remember when the abuse occurred, as was the experience with many people abused as youngsters in orphanages.

In these cases, claimants are more likely to receive compensation through the redress scheme, which takes reasonable likelihood as its burden of proof, whereas a civil case in a court of law requires a balance of probabilities, which is much harder to prove.

“There’s a whole body of claimants who, because of the lower burden of proof, will now, fortunately, be entitled to some form of compensation, whereas in the past that wasn’t the case,” Ms Sdrinis said.

But recent legal changes could also mean more claimants would have success in court.

Redress clause prevents claimants from going to the courts

The Victorian Government recently moved to close a legal loophole which had prevented sexual abuse victims from suing non-incorporated entities such as churches.

The Catholic Church has admitted at least 620 people were abused as children in Victoria over an 80-year period.

And the High Court has ruled that an organisation can be held responsible if it puts an employee in a position which creates the risk that a child will be abused.

Ms Sdrinis believes these changes favour claimants.

“There will be many more people who would have viable cases before the court than was previously the case,” she said.

Mr Nagle says he finds it interesting that the Catholic Church signed up to the redress scheme after it became more likely claimants would succeed in court.

“I think that if a lot of victims and survivors went down that course there will be more than $150,000 on the table,” he said.

But Ms James worries that some victims will not understand that they still have the option of pursuing their case through the courts, because the amount of money being provided for claimants’ legal advice is not enough to pay for the work needed to advise someone adequately.

Once a claimant joins the scheme there is no turning back, because they will have to sign an agreement saying they waive their right to ever make a claim through the courts in the future.

Ms James says the royal commission recommended this measure to encourage institutions to sign up, knowing they would want the certainty that survivors could not also access their common law rights down the track.

She says she respects the royal commission’s position but would prefer that people accessing the scheme were not locked out of options later.

Ms Sdrinis agrees, saying a claimant could find out in the future that there were more victims at the institution where they were abused, and that the organisation knew about it.

“If people haven’t had a chance to ventilate their rights in a court of law, they shouldn’t have to sign a release,” she said.

Topics:

child-abuse,

royal-commissions,

law-crime-and-justice,

sexual-offences,

community-and-society,

australia



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