Avenues for victims of institutionalised child abuse
A number of recent legislative changes and court decisions have greatly expanded the avenues of compensation that are available to victims of institutionalised childhood sexual abuse.
Personal injury claims in Australia must generally commence within three years from when the injury was sustained. As little as two years ago in South Australia these general statutory time limits applied to victims of childhood sexual abuse.
The Royal Commission into Institutional Responses to Child Sex abuse showed that it frequently takes survivors of childhood abuse 20 years, if not longer, to process the abuse they suffered and come forward about it. These time limits made it extraordinarily hard to take action within the time limits, forcing survivors of abuse to abandon civil action or apply to the court for an extension of time within which to commence an action, which can be costly.
This time limit was fortunately abolished in South Australia as of February 2019. There is no longer any time limitation on all forms of child sexual, physical and mental abuse.
National Redress Scheme
Survivors of institutionalised abuse can apply to the Commonwealth National Redress Scheme for compensation. The Scheme provides eligible applicants with up to $150,000, the opportunity to access counselling and psychological care, and the opportunity for a direct response from the institution in question.
South Australia joined the scheme on 1 February 2019.
While it is a significant step in the right direction, the Scheme is not a complete solution. Institutions must voluntarily join the scheme to provide redress to eligible applicants, and have until 30 June 2020 to do so. There are still a significant number of institutions that were named in the Royal Commission which have not yet joined the scheme.
There are significant processing times for applications made under the Scheme. The payouts under the Scheme, which have a maximum of $150,000, are likely insufficient to compensate for the lifelong psychological damage that child sexual causes. Counselling and psychological care is capped at $5,000 per person. Lastly, by accepting redress under the Scheme, survivors may lose their right to sue the institution in question.
On the plus side, the Scheme is significantly less invasive than the alternative of civil procedures, and bears none of the risk associated with litigation.
Recent changes to civil damages
The landmark decision of Lawrence v Christian Brothers  WADC 27 has resulted in significant changes to civil damages payouts for cases of child abuse, and the defences available. Mr Lawrence, an orphan who was subjected to years of abuse by Christian Brothers in a West Australian boys home, was awarded approximately $1.3 million in damages, believed to be the highest ever ordered against the Christian Brothers religious order.
District Court Judge Mark Herron dismissed all arguments that the Christian Brothers raised in an attempt to reduce the payout figure. This included an argument that other early childhood experiences unrelated to the sexual abuse – such as Mr Lawrence’s upbringing, abandonment by his mother, and non-sexual beatings and punishment by the Christian Brothers – were responsible for his later history of depression, alcoholism, drug use and self-harm, and his ‘low earning capacity’ in adult life.
The Judge stated that “the Christian Brothers must take an injured plaintiff, Mr Lawrence, as they find him. To the extent Mr Lawrence was already vulnerable to psychiatric injury because of his early childhood experiences, before he was sexually abused by the Christian Brothers and because of that vulnerability, the trauma of the sexual abuse had a greater impact upon him, the Christian Brothers are liable for the full consequences of that injury.”
This decision has put the nails in the coffin of what has been called the ‘salt in the wounds defence’, and acknowledges the lifelong torment and overwhelming psychological trauma inflicted by childhood sexual abuse.
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