In recent years, New South Wales (NSW) has made significant changes in addressing historical and institutional cases of abuse. These cases involve the mistreatment of individuals within organisational settings, such as schools, religious institutions, or care facilities
For survivors of institutional abuse, seeking justice can be a crucial step in the healing process. It not only provides potential financial compensation but also recognises the harm suffered and can help prevent future abuses. But what are the steps an individual needs to take to claim compensation?
Understanding Institutional Abuse
Institutional abuse encompasses a wide range of mistreatment that occurs within organisational settings, including sexual and physical abuse, emotional or psychological abuse, and neglect. The abuse may be perpetrated by staff members, volunteers, or even other residents or students within the institution.
The types of institutions that may be subject to abuse claims include, but are not limited to:
- Schools and educational facilities
- Religious organisations
- Foster care providers
- Residential care facilities
- Sporting clubs
- Youth detention centres
- Healthcare facilities
One of the most recent and significant changes in NSW legislation is the removal of limitation periods for childhood abuse claims. The Limitation Amendment (Child Abuse) Act 2016 abolished the previous time limits for bringing civil claims related to child abuse, allowing survivors to seek justice regardless of when the abuse occurred, and applies to both past and future cases. This change recognises the complex nature of abuse trauma and the fact that many survivors may not be ready to navigate the claims process or be able to come forward until many years after the abuse has taken place.
Furthermore, the definition of abuse has been broadened to include serious physical abuse, in addition to sexual abuse, acknowledging the lasting impact of various forms of abuse. It provides more survivors with access to justice.
Understanding the impact of legislation and survivors’ legal options is important for securing the best possible outcome for each individual, which is why working with experienced institutional abuse lawyers is crucial.
Legislation Relating to Institutional Abuse Claims in NSW
The legal landscape for institutional abuse claims in NSW has undergone significant changes in recent years aimed at improving survivors’ access to justice. Legislation, such as the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 and the National Redress Scheme, has removed significant barriers for survivors seeking compensation and justice and accessing support.
The key pieces of legislation and schemes include:
- Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018: This Act introduced a statutory duty of care for institutions in NSW, making them liable for child abuse unless they can prove they took reasonable precautions to prevent it. It also allows courts to appoint trustees to be sued on behalf of unincorporated organisations, addressing the “Ellis Defense” issue.
- National Redress Scheme: NSW participates in the scheme, established in response to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. The National Redress Scheme acknowledges the need for an alternative to civil litigation, offering survivors access to counselling, a direct personal response from the institution, and financial compensation.
- Limitation Amendment (Child Abuse) Act 2016: As mentioned earlier, this Act removed time limitations for bringing civil claims related to child abuse, applying retrospectively to past abuse as well as future cases.
- Victims Rights and Support Act 2013: This Act established the Victims Support Scheme, which can provide financial support and counselling to victims of violent crimes, including institutional abuse.
- Civil Liability Act 2002: This Act governs how civil claims are handled in NSW, including provisions specific to child abuse claims following recent amendments.
These legislative changes have significantly improved the legal position of survivors seeking to make claims. They’ve shifted the burden of proof onto institutions, removed procedural barriers like time limitations, and provided alternative pathways for redress.
Steps to Making an Institutional Abuse Claim
Making an institutional abuse claim in NSW involves several key steps:
- Seek Legal Advice: The first step is to consult a lawyer experienced in institutional abuse claims. Many law firms offer free initial consultations. Legal aid may also be available for eligible individuals.
- Gather Evidence and Documentation: Collect evidence related to the abuse, such as medical records, psychological assessments, diary entries, or correspondence with the institution. Your lawyer can assist in obtaining additional documents if necessary.
- Decide Between Civil Litigation and the National Redress Scheme: Based on your circumstances and your lawyer’s advice, you’ll need to choose whether to pursue civil litigation or apply to the National Redress Scheme. Each path has its advantages and considerations.
- File the Claim: For civil litigation, your lawyer will file a statement of claim with the court. You or your lawyer will submit an application form for the National Redress Scheme.
- Engage in the Process: Depending on your chosen path, you may need to participate in court proceedings mediation sessions or provide additional information for your Redress Scheme application.
- Consider Settlement Options: In civil litigation, many cases are settled out of court. Your lawyer will guide you through any settlement negotiations.
- Receive and Respond to the Outcome: The claim process concludes with a court judgement, settlement agreement, or decision from the National Redress Scheme.
Throughout this process, it’s crucial to prioritise your well-being, as engaging with traumatic experiences can be challenging, so ensure you have appropriate support systems in place, including counselling if needed.
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Choosing Between Civil Litigation & the National Redress Scheme
Choosing which legal pathway you take for your case can depend on several factors, but ultimately, the best way to decide is to get independent legal advice about your specific case and understand your options.
The Civil Litigation Process
Civil litigation for institutional abuse claims in NSW involves several stages:
- Pre-litigation Procedures: Before filing a claim, your lawyer may negotiate preliminary with the institution, where they can outline your claim and proposed settlement terms. Some matters may be resolved at this stage without needing court proceedings.
- File the Claim: If pre-litigation negotiations are unsuccessful or are not undertaken, your lawyer will file a Statement of Claim with the appropriate court, which is a document that outlines the basis of your claim, including details of the abuse and the compensation sought.
- The Institution’s Response: The institution (the defendant) must file a defence within 28 days of receiving the Statement of Claim. They may admit to all or part of the claim, deny it, or raise additional facts.
- Discovery: During this stage, both parties exchange relevant documents and information. This process can be extensive in abuse cases, potentially involving historical records from the institution.
- Mediation: The court often requires parties to attempt mediation before proceeding to trial. This confidential process involves an independent mediator helping parties negotiate a settlement.
- Trial: If the case isn’t settled, it proceeds to trial. Evidence is presented, witnesses are examined, and legal arguments are made before a judge.
- Judgement and Appeals: The judge delivers a verdict and, if successful, determines the compensation amount. If there are grounds to appeal, either party may do so.
It’s important to note that civil litigation can be a lengthy and potentially stressful process. However, recent legislative changes in NSW have improved the position of survivors in these cases. Removing limitation periods and reversing the onus of proof onto institutions have made it easier for survivors to bring claims and achieve just outcomes.
The National Redress Scheme Process
The National Redress Scheme provides an alternative pathway for survivors of institutional child sexual abuse. You can read more about the NRS here, but the process involves:
- Eligibility: To be eligible, the abuse must have occurred when the applicant was under 18, before July 1, 2018, and the responsible institution must have joined the Scheme. The abuse must have happened in an Australian institutional context.
- Application: Survivors can apply online, by paper form, or with the assistance of a Redress Support Service. The application includes details of the abuse, its impact, and the institution(s) responsible.
- Assessment: An Independent Decision Maker reviews the application and determines the outcome based on the information provided and the assessment framework.
- Offer: If the application is approved, the survivor receives an offer of redress, which may include a monetary payment, access to counselling and psychological services, and a direct personal response from the responsible institution(s).
- Accept or Decline the Offer: The survivor has six months to accept or decline the offer. Accepting the offer means giving up the right to sue the institution(s) for the abuse.
- Provision of Redress: If accepted, the redress is provided per the offer.
The application process is designed to be simpler and less adversarial than civil litigation but also caps the maximum payment amount.
Seeking Legal Advice for an Institutional Abuse Claim?
If you believe you may be entitled to make an institutional abuse claim, contact Burke Mead Lawyers. Our team of qualified personal injury lawyers operates across NSW, including Newcastle, the Hunter Region and the Central Coast.
Our team of professionals have helped countless individuals with their personal injury claims, including claims made for institutional abuse – contact our legal experts today.
