Abuse Law: Common Law v. National Redress Scheme

Following the Royal Commission into Institutional Responses to Child Sexual Abuse, survivors now have options they never had before.  

Options

Survivors have potentially two avenues to access compensation in relation to abuse they have suffered as a child. These are:

(1) Accessing the National Redress Scheme; or

(2) To pursue a Common Law Claim for Damages for personal injuries (civil litigation).

The below will provide an analysis of the advantages and disadvantages of each of these potential avenues.

National Redress Scheme

The national redress scheme has been in place since 1 July 2018 and is a system allowing access to compensation for victims of childhood sexual abuse. The National Redress Scheme allows compensation to survivors of sexual abuse only (i.e. not serious physical abuse or psychological/emotional abuse). 

There are various matters which need to be considered when establishing whether a person is eligible to access compensation under the redress scheme.

Firstly, it is unlikely that a person can apply for redress if they have been sentenced to a term of imprisonment of 5 years or more. If a person has received a prison sentence of 5 years or more, they would need to apply to the redress scheme for special consideration. 

Secondly, a person is not able to apply for redress if they are incarcerated. A person would have to wait until such time as they were released from prison to make their application, if they are eligible to do so.

There are three components of the redress scheme:

1. Free counselling;

2. A direct personal response from the Queensland Government;

3. Redress payment of up to $150,000.00.

Components 1 and 2 above are the same for all victims of abuse.

With respect to monetary compensation, the applicable payment is up to $150,000.00. Most victims of sexual abuse will not receive this amount and their compensation will be scaled down based on a number of factors. 

Common Law Claim for Damages (Civil Litigation)

A common law claim is a civil claim based in tort. It is a claim for damages against a defendant for the abuse that a survivor suffered.

A common law claim is not capped in terms of the potential damages that are recoverable.

There are two major aspects to a common law claim. The first is liability (including limitation arguments) and the second is quantum (the amount) of damages. In order to obtain any amount of money as compensation, it is necessary to first establish that the institution is liable for the abuse the survivor suffered. 

Liability

In order to establish liability, it must be demonstrated on the balance of probabilities that:

1. The respondent owed the survivor a duty of care;

2. The respondent breached that duty of care; and

3. As a result of that breach, the survivor suffered a diagnosable injury.

There are very technical legal arguments involved.

Quantum

If a survivor was to be successful in proving fault on the part of the defendant, the amount of compensation a survivor would receive is assessed in accordance with common law principles. The way that the amount of compensation is calculated under a civil claim for damages is by reference to a number of “Heads of Damage”. These include the following:

• General Damages, which is past and future pain and suffering;

• Past and Future economic loss;

• Loss of Past and Future Superannuation;

• Interest on past losses; and

• Out of pocket expenses.

Damages at common law are not “capped” as they are in a claim for redress, meaning that the full extent of a survivor’s loss can be compensated in the terms outlined above.

If a survivor can prove negligence on the part of the respondent, they can claim for the damage that flows from that negligence, that is the damage they have suffered as a result of the abuse. 

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim, please reach out to the author and Littles Lawyers today.

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