I Was Abused as a Child and Nothing Was Ever Done. Can I Bring a Claim?
Updated: Aug 27, 2021
On 15 December 2017, the final report of the Royal Commission into Institutional Responses to Child Sexual Abuse was presented to then Governor-General Sir Peter John Cosgrove. The report was the culmination of a five-year long enquiry started by then Prime Minister Julia Gillard in November 2012. The report uncovered the harrowing proliferation of institutional child sexual abuse in Australia, noting that tens of thousands of Australian children had been abused and their abuse had occurred in almost every type of institution where children resided or attended for educational, recreational, sporting, religious or cultural activities. As suggested in the report’s executive summary, institutional child sexual abuse in Australia cannot be said to be a result of a ‘few rotten apples’ but rather represents a systematic failure by Australian institutions, police, and criminal justice system to protect Australian children.
For survivors of institutional abuse, although there is no monetary amount that would ever come close to repairing the damage done by such an insidious crime, compensation may be one of the many steps towards closure and can provide much needed funds to replenish money already spent dealing with the impact of the abuse, help pay for future needs, or both.
How Long After the Abuse Can I Bring a Claim?
In New South Wales, pursuant to section 6A of the Limitation Act 1969, an action for damages for personal injury arising from an act or an omission that constitutes child abuse, may be brought at any time and is not subject to any limitation period. This means that even if your abuse occurred a long time ago, you are still able to make a claim against the abuser, or against the institution that the abuse occurred at in relation to it.
But I Didn’t Tell Anyone About my Abuse
It is an unfortunate truth that many survivors still fear that if they were to tell anyone about the abuse they suffered as a child now they may not be believed, or think that because they didn’t disclose their abuse at the time that they will not be able to bring a claim. However, the good news is that isn’t necessarily true. Often, a claim can be built around the survivor’s own evidence, and many perpetrators have already faced criminal prosecution for crimes committed at the same institution or around the same time, which makes proving the abuse more straightforward. Further, where a claim is brought against an institution, often the institution will prefer to settle the claim privately if they believe it has some merit, rather than proceed to court and risk reputational damage.
How is a Claim for Compensation for Institutional Child Abuse Framed?
In order to explicate how claims relating to child sexual abuse are framed, some distinctions should be made.
First, it is important to understand the difference between a civil matter and a criminal matter. In the former, a person makes a claim for damages for harm that they have suffered, whilst in the latter, the police bring a charge to punish an alleged wrongdoer and protect the community. A claim by a survivor for compensation for child abuse is a civil claim. Regardless of whether a perpetrator has been criminally prosecuted for child abuse offences, a civil claim may still be brought against them or the institution at which the abuse occurred.
A second distinction must be drawn between claims against institutions for abuse that occurred before 2 March 2020 and those for abuse which occurred after 2 March 2020.
Claims After 2 March 2020
A claim against an institution in relation to abuse which occurred after 2 March 2020 falls within the ambit of the new Part 1B of the Civil Liability Act 2002 (the Act). Part 1B inserts a number of new sections into the Act which impose a new duty of care for institutions and reverses the burden of proof in relation to claims of child abuse. Where a survivor proves an act of abuse occurred post 2 March 2020, it is incumbent on the institution to prove that it took all reasonable precautions to prevent the abuse or else they have breached their duty of care. A list of factors relevant to the determination of whether an institution has taken ‘all reasonable precautions’ can be found at section 6F of the Act and includes: the nature of the institution, the resources available, the relationship between the institution and the child, any delegation of the institution’s responsibility, the level of control the abuser was afforded by the institution and whether the institution complied with any applicable standards of child safety.
Claims Before 2 March 2020
A claim against an institution in relation to abuse which occurred before 2 March 2020, however, should be framed in terms of the institution’s vicarious liability for the act of their employee, in line with the High Court decision in New South Wales v Lepore; Samin v Queensland; Rich v Queensland  212 CLR 511 (Lepore). In Lepore, The Court opined that the relevant question is whether the institution placed the abuser in a position of power and intimacy in relation to the survivor, such that their performance of their role within the institution gave them the occasion for the abuse, and that because of their misuse of the position the abuse could be regarded as having been committed in the scope of their employment.
What Types of Damages are Recoverable?
Generally, the damages that are recoverable in institutional child sexual abuse claims are for:
Past and future non-economic loss (e.g., for pain and suffering, disability, loss of enjoyment of life);
past and future pecuniary loss (e.g., out of pocket expenses for medical and other treatment or domestic care and assistance); and
past and future income loss (e.g., loss of income earning capacity).
Exemplary damages, being damages awarded to mark the court’s disapproval of the conduct of the defendant are generally not recoverable, and aggravated damages, being damages awarded to a person who has suffered increased distress as a result of the manner in which the perpetrator behaved when committing the wrong are only recoverable in very limited and exceptional circumstances.
If you or someone you know is a survivor of institutional sexual abuse, contact Dormer Stanhope today for a free initial consultation and advice in relation to your prospects of bringing a successful claim.