Victorian Court of Appeal affirms availability of compensation to relatives of survivors of child sexual abuse

RWQ (a pseudonym) commenced proceedings in the Supreme Court of Victoria against The Catholic Archdiocese of Melbourne (“the Archdiocese”) and George Pell. RWQ claimed the Archdiocese was liable for psychological injuries he suffered after learning his son had been sexually abused as a child by George Pell. The claim was made pursuant to Part XI of the Wrongs Act 1958 (Vic).

It is important to note the Archdiocese is an unincorporated non-government organisation.

The Archdiocese denied the claim on the basis that it did not arise from child abuse and argued that the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (“the Act”) was not applicable to RWQ’s case.

RWQ was successful before the Supreme Court of Victoria at trial. The Archdiocese appealed two orders made by the primary judge, those being:

• The Act applies to the claims made by RWQ against the Archdiocese; and
• A proper defendant nominated by the Archdiocese, as an unincorporated non-government organisation, would incur any liability arising from RWQ’s claim.

The appeal was recently heard before Beach, McLeish and Kennedy JJA of the Victorian Court of Appeal. In a monumental decision, their Honours affirmed the primary judge’s finding that section 4 of the Act is not limited only to children who are alleged to have been sexually abused, variously referred to as ‘child abuse plaintiff’s’, ‘primary victims’ or ‘survivors’. Their Honours confirmed that the only limitation was found in section 4(1), which stated that a claim must be ‘founded on or arising from child abuse’.

To demonstrate that this is the proper interpretation of the section, both Courts utilised the example former Attorney-General, Martin Pakula, referred to in his second reading speech. The Attorney-General made repeated references to litigation individually commenced by Chrissie and Anthony Foster which arose out of alleged sexual abuse suffered by their daughters.

The Court also confirmed a proper construction section 7 of the Act prevents an unincorporated non-government organisation from being able to properly rely upon the defence raised in the Ellis case, that being, it cannot sue or be sued at common law as it does not exist as a juridical entity.

This decision is important in affirming that affected family members of survivors of childhood sexual abuse can make a claim for the impact of the abuse. At Chamberlains we help survivors of institutional child sexual abuse and their families to seek accountability from the institutions that have failed them.

If you or your loved one has been the victim of sexual, serious physical abuse or other abuse please contact our experienced team at Chamberlains for a no obligation, free initial discussion.

This article was prepared with the assistance of Sarah Farhat