Institutional Physical or Sexual Abuse Claims

As a rough guide, physical or sexual abuse claims may take anywhere from six months to a year and sometimes longer, depending on the complexity of the case. We understand this process can be different and emotionally taxing and aim to progress your case promptly and efficiently, so you are able to move on with your life as quickly as possible.

In most cases where a matter can be settled without going before the courts, your matter is entirely confidential and discrete. If your case matter does go before the courts, then there is a possibility that it may be made public, however the team at ROC Legal will make every attempt to suppress your name and details.

If you or someone you know has been physically or sexually abused, it is recommended that you report your crime to the police. While not necessary, it can be helpful for your case if there is a criminal charge or conviction on file. If in doubt, we can help you – call 1300 196 219 for a confidential discussion with out principal legal practitioner Robert O’Neil.

The National Redress Scheme for Institutional Child Sexual Abuse is established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (“NRSA”).  The objects of the NRSA, among other things, is to provide redress in the form of a monetary payment to survivors as a tangible means of recognising the wrong survivors have suffered. Section 3 NRSA

A person is eligible if they were sexually abused, the sexual abuse is within the scope of the NRSA, they would be entitled to more than $0 if assessed against the abuse framework, one or more participating institutions are responsible for the abuse and the person is an Australian Citizen or permanent resident at the time the person applies for redress. Section 13 NRSA

• Whether the institution was responsible for the day to day care or custody of the person when the abuse occurred;
• Whether the institution was the legal guardian of the person when the abuse occurred;
• whether the institution was responsible for placing the person into the institution in which the abuse occurred;
• whether the abuser was an official of the institution when the abuse occurred;
• whether the abuse occurred on the premises of the institution or where activities of the institution took place or in connection with the activities of the institution. Section 15 NRSA

Redress consists of a redress payment (up to $150,000), counselling and a direct personal response. Section 16 NRSA

Redress is for the sexual abuse suffered by the person that is within the scope of the scheme. Section 17 NRSA.

To obtain redress a person must make an application.  The application must be in the approved form, specific where the person lives, include any information and documents required and be verified by statutory declaration. Section 19 NRSA

A person’s application for redress or document created solely for the purpose of accompanying a person’s application for redress, or a document created solely for the purpose of complying with a request for information by the decision maker in relation to an application for redress, is not admissible in evidence in civil proceedings in a court or tribunal.

If a person accepts an offer of redress, then the person releases and forever discharges every released institution or official from civil liability for abuse of the person that is within the scope of the scheme.  The person cannot bring or continue civil proceedings against a released institution or official in relation to that abuse.

If a person makes an application for redress, the decision maker must make a determination to approve or not approve the application as soon as practicable. Section 29 NRSA

A civil claim is where a person owes you a duty of care, they have breached that duty of care, that breach has caused your injury and you have suffered damages as a result of that breach of duty.

The maximum possible amount of compensation for a redress claim is $150,000, section 16 NRSA. 

A civil claim is based on common law principles and the compensation amount can sometimes far exceed what you could possibly obtain under the redress scheme. 

In a civil claim you can claim for such things as:-

• General Damages – which is pain and suffering, loss of amenities of life or loss of expectation of life;
• Interest on General Damages
• Past Loss of earnings
• Interest on Past Loss of earnings
• Past Loss of superannuation
• Future Loss of earnings
• Future loss of superannuation
• Past/Future Care & Assistance
• Past Out of Pocket Expenses
• Future out of pocket Expenses

An action for damages relating to the personal injury of a person resulting from the abuse of the person when they were a child can be brought at any time and is not subject to any limitation period. Section 11A Limitation of Actions Act 1974 (“LAA”).

Abuse of a child, meaning sexual abuse or serious physical abuse of the child or psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.

Normally a civil claim would take approximately 12-18 months to finalise.  The claim is made pursuant to the Personal Injuries Proceedings Act 2002 (“PIPA”) and there are a number of legislative times frames the parties must meet.

The process for a claim under PIPA is as follows:-

1. Serve a claim form on the respondent/s: section 9 PIPA;
2. Receive a compliance response from the respondents (within 1 month of receiving the claim form): section 10 and 12 of PIPA;
3. Co-operation between the parties: section 22 & 27 of PIPA
4. Attending Medical Examinations: section 25 PIPA
5. Liability response from the respondent: section 20 PIPA;
6. Attending a settlement conference: section 36 PIPA.

If the claim is not resolved at the settlement conference then the parties must exchange written final offers: section 39 PIPA.  A proceeding in Court must be started within 60 days after the conclusion of the compulsory conference: section 42 PIPA. 

It is important to note that the majority of civil claims are resolved at the settlement conference given the significant costs and risks to all parties involved in proceeding to court and to trial.

Please give us a call for a confidential, no obligation, free consultation to discuss the various options available to you.

There are a number of possible options and laws to consider prior to making a claim.  Do not leave your application to someone who is not legally qualified to assist and provide you with advice.  You should request a free consultation with us prior to making any application so that we can provide you with advice as to your options.