HESTA’s background Health Employees Superannuation Trust Australia (HESTA) was established in 1987 and is now one of Australia’s largest superannuation...
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A common law claim is a civil claim based in tort. In the Abuse Law sector, it is a claim for damages for personal injuries arising out of the abuse a survivor was subjected to.
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 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.
If a survivor was successful in proving fault on behalf of the defendant/s for the abuse suffered, 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:
The below will provide a summary on the above heads of damage.
General Damages are intended to represent the pain and suffering and loss of the amenities of life as a result of the abuse. This head of damage is calculated on the basis of previous Court decisions. Evidence which goes to prove General Damages is the survivor’s own evidence, that of the survivor’s family and friends, and also medical evidence.
The Defendant ‘must take the plaintiff as they find them’ and aggravation of any pre-existing psychological vulnerability does not automatically result in a reduction by a factor of the causal loading percentage. However, a court would likely reduce any award of damages based on consideration of any contingencies which may have attended upon a survivor’s life.
Past Economic Loss represents the earnings that a survivor would have earned to the present day had they not suffered psychiatric injury as a consequence of the abuse. Past Economic Loss is a calculation of the net weekly income that it is alleged that a survivor would have earned, in the absence of their injury, from the time of the abuse up until the date the survivor’s claim settles, either by negotiation at a conference or by way of trial.
Generally, the best calculation is based on adopting the Australian net average weekly income as the appropriate measure for a survivor’s Past Economic Loss less the survivor’s actual earnings.
Past Economic Loss is also calculated with reference to the medical evidence as to what impact the survivor’s injuries have, if any, on their ability to gain employment in the past and in what field.
A survivor is also entitled to claim for Past Loss of Superannuation.
Future Economic Loss is calculated on the basis of income that it is contended the survivor would have earned up until retirement had the survivor not suffered the abuse related psychiatric injury, less any income that the survivor might be able to earn taking into account their disability.
Accordingly, in keeping with Past Economic Loss, the best calculation is based on adopting the Australian net average weekly income for the purposes of projecting the survivor’s future economic loss.
Future Economic Loss is also based on the medical evidence as to what impact, if any, the survivor’s injuries caused by the abuse will have on their ability to gain employment between the time of the claim and retirement age.
Claims for both past and future economic losses are often regarded as quite speculative, and the courts will typically apply discounting factors to these claims.
A survivor is also entitled to claim for Future Loss of Superannuation.
Past Special Damages comprises of the expenses that the survivor and others have paid in relation to treatment, travelling, pharmaceuticals and the like received by the survivor in relation to the abuse related injury, plus interest. To this end, lawyers will typically liaise with Medicare and any private health insurers to establish if these organisations have made any contribution towards the survivor’s past medical treatment.
The costs of future treatment are based on the medical evidence as to how much, if any, medical treatment the doctor opines that a survivor will require in the future for treatment of their injuries caused by the abuse.
Aggravated damages are awarded to a survivor in situations where they have suffered distress due to the defendant’s actions. The purpose of aggravated damages is to compensate the survivor for this distress. In assessing whether aggravated damages should be granted, the court will consider the conduct from the survivor’s perspective. Conduct that causes the survivor to suffer shame or humiliation and causes injury to their dignity or pride may attract an award of aggravated damages. The conduct of the defendant that causes distress to the survivor is usually quite outrageous in cases where aggravated damages are awarded.
Exemplary Damages focus on the defendant’s conduct rather than the survivor’s loss. An award of exemplary damages is intended to punish a defendant for their conduct and look to deter similar conduct in the future.
Littles Lawyers 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, Emily Wright, and Littles Lawyers today.
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