Historical abuse cases represent some of the most complex and sensitive areas of Australian law, involving survivors seeking justice for wrongs that may have occurred decades ago. In the legal context, historical abuse refers to any form of physical, sexual, emotional, or psychological harm that occurred in the past, typically involving children who are now adults seeking redress for the abuse suffered.
The reasons survivors are now seeking justice vary widely – some are motivated by recent changes in the law that make claims more viable, others by the public discourse following the Royal Commission, and many by a desire to prevent future abuse and hold institutions accountable for past failures.
Key Legislation for Historical Abuse Claims
The legal framework governing historical abuse cases in NSW and Australia has undergone substantial reform in recent years, creating a more supportive environment for survivors seeking justice. The foundation of this framework rests on several key pieces of legislation that work together to provide both civil and criminal pathways for redress. An experienced historical & institutional abuse lawyer can provide considered advice and guidance on the right pathway for an individual’s claim.
The Civil Liability Act 2002 & Limitation Act 1969
The Civil Liability Act 2002 (NSW) forms the cornerstone of civil claim proceedings, establishing the framework for personal injury compensation while providing crucial exceptions to limitation periods for child abuse cases. This Act works in conjunction with the Limitation Act 1969 (NSW), which historically imposed strict time limits on civil claims but has been significantly amended to remove limitation periods entirely for child sexual abuse and severe physical abuse cases.
These changes recognise that survivors often don’t disclose abuse for decades, with research showing an average of 22 years between abuse occurring and disclosure.
The Crimes Act 1900
The Crimes Act 1900 (NSW) provides the criminal law framework, including provisions for persistent sexual abuse of children under section 66EA, which can now carry penalties up to life imprisonment. Importantly, these enhanced penalties can be applied retrospectively to historical cases, as demonstrated in recent prosecutions.
The Child Protection (Working with Children) Act 2012
The Child Protection (Working with Children) Act 2012 (NSW) establishes modern safeguarding requirements, though its provisions often serve as a benchmark for assessing historical institutional failures.
National Redress Scheme
At the federal level, the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), created an alternative pathway for survivors, providing acknowledgment, counselling, and monetary payments without the need for lengthy court proceedings. This scheme operates alongside, rather than replacing, traditional civil and criminal remedies.
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Types of Historical Abuse Cases
Historical abuse cases encompass a broad spectrum of circumstances and institutional settings, each presenting unique legal challenges and considerations. Understanding these different categories is essential for both survivors and legal practitioners, as the type of abuse and institutional setting significantly influence the legal strategies, remedies and financial compensation available.
Institutional Abuse
Institutional abuse represents the largest category of historical physical, sexual and emotional abuse cases, involving organisations that held positions of trust and authority over children.
Religious institutions constitute another significant category, with cases involving clergy, religious teachers, and volunteers across various denominations. The Roman Catholic Church, in particular, has faced numerous cases involving clergy who commit abuse, often presenting complex questions of institutional structure, religious hierarchy, and the extent to which central organisations can be held liable for the actions of individual clergy members or local institutions.
Care facilities and the foster system represent some of the most severe cases of institutional abuse, often involving children who were already vulnerable due to family breakdown, poverty, or disability. These institutions, meant to provide safety and care, instead became sites of systematic abuse, with survivors often experiencing multiple forms of maltreatment over extended periods where the same institution would house multiple victims. The absence of family oversight and the institutional culture of the time created environments where abuse was both widespread and where people committing abuse were concealed.
Youth organisations, including sporting clubs, scouts, and recreational programs, present their own unique characteristics. These cases often involve trusted coaches, leaders, or volunteers who exploited their positions to access and abuse children. The community standing of these organisations and their leaders often provided additional protection from scrutiny, while the nature of these activities – involving physical contact, travel, and informal supervision – created opportunities for abuse to occur.
Familial and Domestic Abuse
While institutional abuse dominates public discourse, familial and domestic abuse cases represent a significant portion of historical abuse claims, particularly those involving severe physical abuse and domestic violence. These cases present distinct challenges, including identifying appropriate defendants, assessing the availability of assets for compensation, and the complex family dynamics that may influence a survivor’s decision to pursue legal action.
Historical domestic violence cases often involve survivors who suffered physical and psychological abuse before escaping these situations. The legal framework now better recognises the long-term impacts of domestic violence, including complex trauma, economic disadvantage, and ongoing safety concerns that may have prevented earlier disclosure or legal action.
Intergenerational trauma considerations are increasingly recognised in these cases, particularly those involving Aboriginal and Torres Strait Islander families affected by the Stolen Generations and other historical policies. These cases require sensitive handling and an understanding of the broader historical and cultural context in which the abuse occurred.
The legal system’s evolving understanding of trauma, combined with improved support services and legislative reforms, has created new opportunities for survivors of familial abuse to seek recognition and compensation for their experiences, regardless of when the past abuse occurred.
Historical Abuse Cases in Australia
The scope of historical abuse cases is vast, encompassing institutional abuse within schools, religious organisations, care facilities, and sporting clubs, as well as familial abuse within homes and communities. Following the Royal Commission into Institutional Responses to Child Sexual Abuse, which exposed the widespread nature of abuse within institutions across Australia, there has been an increase in cases, and we will detail some of the historic abuse cases in the most recent years.
Willmot v State of Queensland [2024]
The Claim
Ms Willmot (born 1954) sued the State of Queensland for damages relating to child sexual abuse and serious physical abuse that occurred more than 50 years ago. She made four specific allegations:
- Sexual abuse by her foster father weekly/fortnightly between 1957-1959, and both foster parents regularly beat her.
- Severe physical abuse while resident in a state-operated dormitory.
- Sexual assault by uncle “NW” during a visit to her grandmother’s house at age 6.
- Sexual assault by “Uncle Pickering” (cousin/great uncle) during a similar visit at age 13.
Ms Willmot argued the State owed her a non-delegable duty of care for all allegations. The State sought a permanent stay of proceedings, arguing that the trial would necessarily be unfair due to the passage of time (50+ years).
The Decision
The High Court allowed the appeal in part, meaning Ms Willmot achieved a partial victory. The Court established important principles:
Key Legal Principles:
- Permanent stays should only be granted in exceptional circumstances.
- The burden of proof for obtaining a permanent stay lies on the defendant.
- Section 11A of the Limitation of Actions Act 1974 (Qld) removed time bars for child abuse claims.
- The mere passing of time does not automatically justify a stay.
Specific Outcomes by Allegation:
- Sexual abuse by foster father: NO STAY (majority decision);
- Physical abuse by foster parents: STAY GRANTED (majority decision);
- Physical abuse at the dormitory: NO STAY (unanimous);
- Sexual assault by uncle “NW”: NO STAY (unanimous); and
- Sexual assault by “Uncle Pickering”: STAY GRANTED (unanimous).
The Compensation Outcome
Proceedings were allowed to continue for some claims; it was a partial success. Ms Willmot can proceed to trial on the following allegations:
- Sexual abuse by foster father;
- Physical abuse at the dormitory; and
- Sexual assault by uncle “NW”.
However, two allegations were permanently stayed:
- Physical abuse by foster parents; and
- Sexual assault by “Uncle Pickering”.
The case will now proceed to trial on the remaining allegations, where Ms Willmot may be awarded compensation if successful. The final compensation outcome is yet to be determined, as this was only a preliminary ruling on whether the case could proceed.
Erlich v Leifer [2015] VSC 499
The Claim
Hadassa Sara Erlich sued Adass Israel School Inc. for damages relating to sexual abuse she suffered as a student and employee. Between 2003-2006, she was sexually abused by the school’s headmistress, Mrs Malka Leifer, starting when she was 15 years old. The abuse occurred at school, at Leifer’s home, and during school camps. Erlich claimed the school was liable for:
- Direct liability – Leifer was the “mind and will” of the school;
- Vicarious liability – the school was liable for Leifer’s actions as her employer;
- Breach of non-delegable duty of care – failing to protect students from abuse; and
- Negligence – failing to properly supervise, vet employees, and provide complaint mechanisms.
The case also involved exemplary damages claims against both Leifer and the school, particularly for the school’s role in helping Leifer flee Australia within 48 hours of abuse allegations surfacing.
The Decision
The Victorian Supreme Court found comprehensively in favour of the survivor on multiple grounds:
- Direct Liability: The school was directly liable because Leifer was the “mind and will” of the school, holding unrestricted power and control over the girls’ campus with no proper oversight.
- Vicarious Liability: The school was also vicariously liable as Leifer’s employer, given her position of authority, power, trust, and ability to achieve intimacy with vulnerable students in the closed Ultra Orthodox community.
- Employment Relationship: The court found the school (not the Congregation) employed Leifer, based on immigration documents, contracts, and correspondence showing the school sponsored her visa and was her employer.
- Negligence: The court found insufficient evidence to prove the school breached its duty of care, as the plaintiff failed to establish what reasonable precautions should have been implemented.
- Exemplary Damages: Awarded against both defendants for their deplorable conduct – particularly the school’s role in facilitating Leifer’s urgent departure from Australia before police could investigate.
The Compensation Outcome
Major victory with substantial compensation totalling $1,174,428:
Compensatory Damages:
- Non-economic loss (pain & suffering): $300,000
- Past economic loss: $50,358
- Future economic loss: $501,422
- Past medical expenses: $156,007
- Future medical expenses: $16,641
Exemplary Damages:
- Against Leifer: $150,000
- Against the school: $100,000
Key Findings:
- Erlich suffered severe psychiatric injury, including PTSD, depression, and borderline personality disorder.
- The school’s conduct in helping Leifer flee Australia was “deplorable” and “disgraceful”
- Leifer’s abuse was described as having a “destructive and evil nature” over several years
- The court recognised the particular vulnerability of students in the closed Ultra Orthodox community.
This case established important precedents for institutional liability and represented one of the largest awards for institutional child sexual abuse at the time.
O’Connor v Comensoli [2022] VSC 313
The Claim
Stephen O’Connor sued Archbishop Peter Comensoli of Melbourne for damages relating to grave sexual assaults committed by Catholic priest Desmond Gannon on three occasions between 1968 and 1970. O’Connor was 12 years old when the abuse began. He claimed the Archbishop was liable for:
- Direct liability for Gannon’s sexual assaults;
- Vicarious liability as Gannon’s employer/superior; and
- Damages for severe life impacts, including derailment of his previously happy childhood, and subsequent problems with alcohol addiction and life dysfunction.
The case involved evidence that O’Connor had been a happy, well-adjusted child until age 12, when the abuse occurred and his life trajectory dramatically changed, contrasted with his siblings, who remained stable and successful.
The Decision
Trial Court (Justice Keogh): Found comprehensively in favour of the survivor on all liability issues:
- Direct and vicarious liability was established against the Archbishop for Gannon’s sexual assaults.
- Substantial damages awarded: AU$1,908,647 plus interest.
- Causation established: Clear evidence that abuse at age 12 derailed a previously happy child’s life.
Court of Appeal: The Archbishop appealed on three grounds but failed on all contested issues:
General Damages Appeal:
- Archbishop argued AU$525,000 was “manifestly excessive” (compared to typical awards of AU$250,000-300,000).
- The Court of Appeal rejected this argument, establishing that:
- Awards must be “grossly disproportionate” to be overturned, not just higher than previous cases;
- Other cases don’t provide “set points of reference”;
- “The destructive impact of child sexual abuse is becoming better understood”; and
- A small number of comparable cases limits the comparison value.
Economic Loss Appeal:
- The Archbishop challenged the AU$1,500,000 economic loss award and the calculation methods.
- The Court of Appeal rejected all arguments regarding calculations, rounding, and the vicissitudes discount.
Third Ground: Disability support payment deductions were not pursued at the appeal
The Compensation Outcome
Complete victory with record-breaking compensation of AU$1,908,647 plus interest:
Breakdown:
- General damages (pain & suffering): AU$525,000
- Economic loss: AU$1,500,000
- Medical expenses: Small additional amount
Significance:
- AU$525,000 general damages were significantly higher than:
- Typical awards of AU$250,000-300,000; and
- Even O’Connor’s own claim of AU$400,000-450,000.
- The total award represents one of the largest recorded compensation amounts for historical child sexual abuse.
- Precedent set for higher awards recognising the severe long-term impacts of childhood sexual abuse.
Key Factors in Award:
- Clear evidence of a dramatic life change from a happy child to a troubled adult.
- Corroborating evidence from the sister about O’Connor’s previous happiness.
- Evidence of siblings’ success shows O’Connor’s likely trajectory without abuse.
- Recognition of alcohol addiction and life dysfunction directly caused by abuse.
- Court of Appeal’s acknowledgment that “the destructive impact of child sexual abuse is becoming better understood”.
This case established important precedents for significantly higher damage awards. It confirmed that historical sexual abuse compensation amounts should reflect growing understanding of long-term impacts rather than being artificially constrained by previous lower awards.
RC v Salvation Army [2024]
The Claim
RC sued the Salvation Army for damages relating to sexual abuse that occurred in 1959-1960, when he was a child resident in a home operated by the Salvation Army. RC made several legal claims:
- Sexual assault and abuse by a Salvation Army officer during his residency;
- Breach of non-delegable duty – the Salvation Army failed to take reasonable care for his safety;
- Breach of statutory duty of care under the Child Welfare Act 1947 (WA); and
- Vicarious liability for the officer’s intentional torts.
RC alleged he reported the abuse to another officer at the home while still a resident. The proceedings were commenced in 2018, nearly 60 years after the alleged abuse.
The Decision
The High Court unanimously granted special leave to appeal, and a majority allowed the appeal in full. This meant RC achieved a complete victory.
Key Findings:
- The Salvation Army had applied for a permanent stay, arguing they could not meaningfully defend due to:
- Death of potential witnesses (including the alleged perpetrator);
- Absence of officers who could provide relevant information; and
- Absence of documentary evidence.
- The High Court applied the same principles as in the Willmot case, requiring the defendant to prove that there could be no fair trial.
- Section 6A(2) of the Limitation Act 2005 (WA) removed time limitations for child sexual abuse actions.
- The Salvation Army failed to discharge its burden of proving that a fair trial was impossible.
The Compensation Outcome
Complete success for the survivor. RC’s case will proceed to trial on all allegations against the Salvation Army. The permanent stay was overturned, meaning:
- RC can pursue his claims for sexual abuse by the officer;
- RC can pursue claims for breach of non-delegable duty;
- RC can pursue claims for breach of statutory duty under the Child Welfare Act; and
- RC can pursue vicarious liability claims against the Salvation Army.
The case reinforced that permanent stays should be granted only in exceptional circumstances, and that the mere passage of time and the absence of witnesses/evidence do not automatically prevent a fair trial. The final compensation amount is yet to be determined, as this was a preliminary ruling allowing the case to proceed to trial.
Pathways to Justice for Survivors
Survivors of historical abuse have several avenues for seeking justice and compensation. Civil compensation claims through personal injury proceedings offer the potential for substantial damages, including compensatory, aggravated, and exemplary damages, though they require significant evidence and expert witnesses to establish the abuse and its ongoing impact.
The National Redress Scheme and other redress schemes provide alternative pathways specifically for institutional child sexual abuse, offering payments up to $200,000 along with counselling and direct personal responses from institutions, with eligibility extending to abuse that occurred before July 2018. These schemes recognise that traditional litigation may not be appropriate for all survivors who were sexually abused.
Criminal proceedings remain available regardless of when the abuse occurred, as NSW has no limitation period for reporting child sexual abuse to police, allowing survivors to pursue justice through the criminal justice system while accessing victim support services and the opportunity to provide victim impact statements during sentencing.
Taking the First Step
For survivors of historical abuse contemplating legal action, taking the first step can feel overwhelming. Understanding the process, options available, and what to expect can help survivors make informed decisions about pursuing justice and compensation.
The importance of seeking specialised legal advice early cannot be overstated. Historical abuse cases involve complex legal principles, specialised procedures, and unique challenges that require expertise in this specific area of law. Early legal consultation helps survivors:
- understand their options;
- assess the strength of their potential claims; and
- make informed decisions about their claim for their specific circumstances.
Considering personal readiness is equally important, as legal proceedings can be emotionally challenging and may extend over several years. Survivors should honestly assess their psychological readiness for the litigation process and ensure they have adequate support systems in place.
This doesn’t mean survivors need to have fully recovered from their trauma before pursuing legal action, but rather that they should have access to appropriate mental health support and understand the potential emotional impacts of legal proceedings.
The decision about timing is highly personal, and there’s no “right” time for every survivor. Some find that pursuing legal action forms part of their healing process, while others prefer to focus on recovery before engaging with the legal system. The removal of limitation periods for child sexual abuse means that survivors can make this decision based on their own readiness rather than artificial legal deadlines.
Key Takeaways
- Historical abuse in Australia includes physical, sexual, emotional abuse, and neglect, often occurring in institutional settings.
- Survivors may delay reporting due to psychological factors, social stigma, lack of information, and distrust in institutions.
- Legal options for survivors include the National Redress Scheme, civil litigation, and criminal prosecution, each with distinct processes and outcomes.
- The National Redress Scheme offers compensation and support for institutional child sexual abuse, while civil claims can seek broader compensation from individuals or institutions.
- The National Redress Scheme offers compensation and support for institutional child sexual abuse, while civil claims can seek broader compensation from individuals or institutions.
Seek Advice from Specialist Historical Abuse Lawyers
The legal landscape for historical abuse cases in NSW has been fundamentally transformed in recent years, creating unprecedented opportunities for survivors to seek justice and compensation. However, dealing with an institutional or historical abuse claim can be a stressful and complicated process, but it is manageable with the right help.
The team at Burke Mead Lawyers are experts in compensation law, including historical abuse claims. For a confidential consultation about your historical abuse case, contact Burke Mead Lawyers today.
