How does compensation for historic sexual abuse work?

Survivors of historic child sexual abuse have the ability to seek redress through a civil law claim against their abuser or negligent institutions for the pain and suffering they have faced. However, these proceedings do not always lead to just outcomes, with many victims receiving far less compensation than they would ordinarily be entitled to.

To rectify these injustices and to allow these victims a second chance to receive greater compensation, many jurisdictions have introduced legislation which give avenues to re-open matters that were settled in various unfair circumstances.

The legislation

Many states have passed legislation which allow Courts to overturn a settlement deed in a historic sexual abuse matter.

Notably, the State New South Wales has enacted the Civil Liability Amendment (Child Abuse) Bill 2021 which allows courts the power to overturn a settlement deed where it is found to be reasonable and just to do so.

Section 50X of the Act allows settlement deeds restricting victims of childhood abuse from seeking further compensation to be withdrawn. To determine whether this is suitable, a Court may consider:

1. the amount paid to the applicant under the agreement;
2. the bargaining position of the parties to the agreement;
3. the conduct in relation to the agreement of:
   1. the parties other than the applicant, or
   2. the legal representatives of the parties other than the application; and
4. any other matter the Court considers relevant.

The States of Victoria and New South Wales have also passed legislation regarding the ‘Ellis Defence’, a legal loophole used by the Catholic Church that protected them from legal action. The Church had previously successfully argued that they did not legally exist, as their assets were held in trust. Until the overturning of the defence, survivors had to rely on the Church to nominate a legal entity such as a bishop to be sued, a practice which saved the Church millions in payable damages. These changes leave the door open for Courts to decide cases settled under the use of this defence should be reopened.

Examples

In Victoria and New South Wales, settled matters which involved the Catholic Church paying victims relatively small sums of money in exchange for silence have also been permitted to be overturned. Additionally, various settlements that were reached prior to the abolishment of the statute of limitations, where victims were forced to settle their matters before their time run out have allowed to be reopened under recent legislation Australia wide.

In Western Australia, under Section 92 of the Limitations of Actions Act 2005 (WA), amended by the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill (WA) 2017, the matter of JAS v The Trustees of the Christian Brothers [2018] WADC 169 (“JAS”) demonstrates how these pieces of legislation can work in practice.

The plaintiff had settled their matter for $100,000 in 2015, prior to the abolishment of the statute of limitations for historic sexual abuse. In analysing the circumstances of the matter, the Court noted the amendment to the Limitations of Actions Act 2005 (WA) to remove limitation periods was both prospective and retrospective. At the time the initial settlement was reached, JAS’s claim was statute barred, which the Court noted as severely reducing the plaintiff’s bargaining position. At the time, the Plaintiff held no prospects of success through litigation, and were forced to accept the settlement. These circumstances were sufficient for the Court to grant leave for the case to be reopened.

Although the circumstance of every case is different, the matter of JAS shows the potential to reopen previously settled matters under new legislation, giving survivors greater options in their pursuit of justice.

If you or a loved one have suffered from historic sexual abuse, it’s crucial to understand your legal rights and options for compensation. Chamberlains Law Firm is here to help you navigate this complex and sensitive area of law. Our experienced team of lawyers can provide you with the guidance and support you need to seek justice and secure the compensation you deserve. Contact our abuse compensation claims team to schedule a confidential consultation and take the first step towards healing and recovery.