Compensation for survivors of Institutional Child Sexual Abuse in Australia: Tortious rights and challenges for reform

LexisNexis Butterworths
Publication Type:
Children and the Law in Australia, 2017, 2nd Edition, pp. 337 - 375
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The risk and incidence of sexual abuse of children in an institutional context has been brought to increasingly greater public attention since the 1990’s, both in Australia and around the world. In Australia, several state inquiries since the mid-1990’s addressed sexual abuse of children in state care and religious institutions in Australia, and there have been numerous other state and federal inquiries in that time which have considered in some way the issue of child sexual abuse in the context of a broader or different remit. However, on 11 January 2013 a national Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) was established to focus specifically on how to better prevent, report and respond to child sexual abuse in an institutional context. It is expected to deliver its final report by the end of 2017. The Royal Commission’s work is revealing the nature and extent of child abuse in a wide range of different institutional contexts in Australia. As at 10 September 2015, the Royal Commission had received allegations relating to 3,566 different institutions. In its Consultation Paper on Redress and Civil Litigation (“Consultation Paper”), the Royal Commission analysed the data obtained from private sessions held between 7 May 2013 and 31 August 2014 in relation to reported incidents of child sexual abuse and categorised it by institution type, or activity. The incidence per category was as follows: 34.6% in out-of-home residential care; 28.1% in educational day and boarding schools; 16.6% in religious activities; 7.6% in out-of-home foster or kinship care; 4.2% in recreational, sporting and hobby groups or institutions; 2.1% in health and allied fields or by medical practitioners; 1.1% in juvenile justice; 0.9% in childcare centres, and smaller representation of incidents in other institutional categories. A significant proportion of this reported abuse related to faith-based institutions. For example, of reported incidents of sexual abuse in out-of-home residential care, 64% was in faith-based residential homes. Of reported incidents of sexual abuse in a school setting, 77.1% of incidents was in a faith-based day or boarding school. It has been estimated that there may be at least 60,000 survivors of institutional child abuse who may be eligible for compensation if a national redress scheme were established. As noted by the Royal Commission, ‘when a child is sexually abused while in the care of an institution, the impact can be devastating and last for a lifetime.’ The harm can be physical as well as psychological and emotional, and the trauma associated with it can impact significantly on the survivor’s future capacity for work, the ability to maintain personal relationships and a survivor’s psychological wellbeing. Many survivors of institutional child sexual abuse have experienced considerable difficulty in seeking financial compensation for such harm. There have been several state government ex gratia payment schemes to date, however they have been limited in scope to abuse in government care in institutions of those states. Some survivors have obtained payments through private schemes such as Towards Healing and the Melbourne Response run by the Catholic Church and other private settlements such as the Procedures for Complaints of Sexual and Other Abuse against Salvationists and Workers 1996 by the Salvation Army. There is no comprehensive national redress scheme currently in place, although this has been recommended by the Royal Commission. Another option is for survivors to bring proceedings in tort seeking an order from the court for damages by way of financial compensation for harm from either the perpetrator of the abuse or from the institution in which the abuse occurred. The focus of this chapter is on the ways in which survivors can bring claims in tort and the obstacles to such claims under the current state of the law in Australia. Tort law is the law dealing with civil wrongs at common law. Sexual abuse of a child is of course a criminal offence, but it is also capable of giving rise to an action in tort against the perpetrator of the abuse and in some cases against the institution in which the abuse occurred. If successful, proceedings in tort can lead to remedies in damages. Damages are an award of money ordered by the court to be paid by the defendant to the plaintiff. Damages are ‘real’ in the sense of being awarded as real compensation for harm suffered, and can be potentially substantial in amount. The amount of damages can be significantly higher than amounts typically paid under ex gratia payment schemes. Successful proceedings can also have a very significant vindicating effect for a plaintiff, affirming their story on public record in a judgment of the court. An award of damages also has the effect of punishing perpetrators or responsible institutions. There are of course well known difficulties for plaintiffs in court proceedings that can be particularly difficult for survivors of institutional child sexual abuse: court proceedings can be expensive, uncertain, drawn-out and lengthy, as well as being emotionally and psychologically traumatic through revisiting the abuse in evidence and cross-examination. However, for some survivors, the opportunity to seek formal recognition of the wrongdoing and potentially substantial financial compensation will warrant commencing proceedings. This chapter highlights some of the procedural and doctrinal obstacles and uncertainties in the common law which currently prevent many survivors having a clearly available action in tort under Australian law. The possibility of Australian law reform to address some of the difficulties is also examined briefly in light of the recommendations of the Royal Commission for civil litigation reform. The recommendations made by the Family and Community Development Committee of the Victorian Parliament Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations in its Betrayal of Trust Report in 2013 are also considered
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