Institutional Abuse

What is Institutional Abuse?

Institutional abuse is where a child (under the age of 18), has been subject to sexual, physical or mental abuse while in the care of an institution. Such institutions can vary from:

1. 1. Public or private schools;
   2. Other place’s of education;
   3. Before and after school care;
   4. Youth centres;
   5. Government department;
   6. Orphanage;
   7. Sporting clubs, facilities or committees; and
   8. Churches and or religious orders.

In 2014, the National Redress Scheme was introduced following the Royal Commission into Institutional Responses to Child Sexual Abuse. The National Redress Scheme is a statutory scheme that was established for victims and survivors of institutional abuse, so that they can make a claim for compensation. Compensation through the National Redress Scheme is assessed differently to what may be claimed in a Common Law Claim for Damages for negligence. That’s why its so important to obtain legal advice about what is the best option for you, as this is a very complex area of law.

National Redress Scheme

The eligibility requirements for the National Redress Scheme is that you must meet the conditions which are as follows:

1. 1. The abuse must have occurred prior to 1 July 2018 and when you were a child;
   2. You must be over 18 years of age or will turn 18 before 30 June 2028;
   3. The victim must have been in the care of the institution that is participating in the National Redress Scheme;
   4. The victim must be an Australian citizen or permanent resident; and
   5. You must make a claim before 30 June 2027.

There are other specific circumstances which may prevent your eligibility for making a claim through the National Redress Scheme. It’s important to seek legal advice to determine if you are not eligible to make a claim and what other options may be available to you.

What am I Entitled to if I Make a Claim through the National Redress Scheme?

If you make a claim through the National Redress Scheme, you may be entitled to:

1. 1. A damages payment of up to $150,000;
   2. Paid medical expenses for counselling or psychology;
   3. A personal response from each participating institution responsible for the abuse acknowledging the victim’s abuse and providing an apology.

What happens if I Accept a Lump Sum Offer Made to me by the National Redress Scheme?

If you make a claim under the National Redress Scheme and a lump sum offer is made to you which you accept, then you will no longer have an entitlement to claim in a civil action such as a common law claim for damages against the responsible institution or any institution it is associated with. This does not extend to the person/s that abused you or release them from criminal liability.

Common Law Claim for Damages

The alternative to making a claim through the National Redress Scheme, is making a common law claim for damages for negligence against the institution. For example, you may not be able to make a claim under the National Redress Scheme if the institution you are alleging abuse, is not a participant of the National Redress Scheme. Another example, for not making a claim under the National Redress Scheme, is if you consider your damages payout will exceed the maximum payment amount offered by the National Redress Scheme of $150,000. This might be because of the seriousness of your injuries restricting your ability to function in your daily life, the requirement of ongoing medical treatment and medication, and or if your injuries are rendering you unable to work or retain a long-term job, thus resulting in economic loss.

A common law claim for damages is a complex legal process, which may entitle you to a higher damages award than what can be paid as a maximum damages amount offered under the National Redress Scheme. Despite this, it’s important you obtain legal advice prior to making a decision to determine if you are eligible, to assess negligence as there is a different standard of proof for each process and to determine which process will provide you with the best outcome taking into consideration your individual circumstances.

If you were abused while in the care of an institution and are considering making a claim, its critical you obtain legal advice about your rights.

Written by Nikolina Tully, Legal Practice Director & Founder of Tully Law
Published on Sunday 2nd, April 2023