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In a criminal law setting and at the end of a criminal trial, the court will ultimately find an accused guilty or not guilty and, if found guilty, will then convict the accused of the offence and prescribe a punishment. At the end of a criminal trial in Australia, if the jury has any reasonable doubt, then the accused will not be convicted. This is not to say that the survivor is not able to access any compensation as they will still have the option to pursue a civil claim against the individual perpetrator, however, their criminal claim must be 100% free from doubt. In a civil case, a decision will be made based on whether it has been proven on the balance of probabilities (it was more probable than not) that the individual perpetrator committed wrongful acts against the survivor, and that an injury was then sustained by the survivor. The Court can then award damages based on the loss suffered by the survivor as a result of their injury.
In short, survivors who were abused outside of an institutional setting and were, instead, abused by an individual perpetrator also hold an entitlement to sue the individual perpetrator in a common law claim for a psychological and/or psychiatric injury they have sustained as a result of the abuse.
The survivor can advance a common law claim against the perpetrator on the basis that the perpetrator committed acts of sexual and/or physical abuse against the survivor including, but not limited to, trespass and/or assault and/or battery.
If the perpetrator has been criminally convicted, this will strengthen any common law claim for damages a survivor commences.
With respect to an individual perpetrator’s capacity to pay a survivor any compensation, it is important to first establish that the individual perpetrator has sufficient assets to pay compensation to the survivor as they do not hold insurance like an institution would. Real property (i.e. a house) is considered sufficient assets. Property searches will need to be conducted to discover whether the individual perpetrator holds assets.
Individual perpetrator claims come with the risk that, should the individual perpetrator not have sufficient assets, this will result in the survivor not being able to recover compensation from the individual perpetrator. There is also a risk that the individual perpetrator may dispose of their house and/or other assets, and if this occurs then the survivor will unlikely be able to obtain compensation through a common law claim against the individual perpetrator.
The National Redress Scheme only provides compensation to survivors of sexual abuse within an institutional setting, therefore, a survivor of abuse committed by an individual perpetrator outside of an institutional setting is not entitled to compensation under the National Redress Scheme.
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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