National Redress Scheme v. Common Law Claim - Understanding what the best compensation option is for survivors of institutional abuse

Despite being widely publicly endorsed by various institutions, the National Redress Scheme is only one of a number of compensation options that survivors of institutional sexual abuse may be entitled to, depending on which State or Territory they were abused in. 

First of all - what is the National Redress Scheme?

The National Redress Scheme was established as a result of recommendations which were made by the Royal Commission into Institutional Responses to Child Sexual Abuse. The National Redress Scheme commenced on 1 July 2018, and will run for a period of 10 years (applications can be submitted until 30 June 2027). 

Applying for redress under the National Redress Scheme can be done online or by filling out a paper application and posting it to the National Redress Scheme.  

The National Redress Scheme was created to achieve a number of outcomes for survivors of institutional sexual abuse, including:-

  • A payment to reflect the harm suffered (the maximum payment an individual can receive is $150,000.00);
  • Counselling and psychological support (depending on the location of the applicant); and
  • A personal response from the responsible institution. 

A survivor only has six months to decide whether or not they want to accept the amount that they are offered under the National Redress Scheme. Unfortunately, a survivor is not compelled to obtain legal advice when deciding whether or not they want to accept the redress payment and many people do not understand the serious legal consequences associated with accepting a payment.

If an individual is not happy with an offer of redress made under the National Redress Scheme, they can request an internal review prior to accepting the payment. However, the survivor risks the payment amount decreasing upon review. The review itself can also be a lengthy process. 

What doesn’t the National Redress Scheme do?

Many lawyers who work with survivors of institutional abuse have identified flaws or problems with the operation of the National Redress Scheme. 

The National Redress Scheme does not compensate survivors of sexual abuse for economic loss (compensation for past and future income that an individual has lost as a result of the impact of their abuse) or for pain and suffering (compensation for the emotional distress) that an individual has experienced as a result of their abuse. 

The National Redress Scheme does not investigate liability or the failings of the responsible institution in protecting children. 

The National Redress Scheme does not compensate survivors who only experienced serious physical abuse in an institution. Individuals will only be eligible for a payment under the National Redress Scheme if they were sexually abused or physically abused in connection with their sexual abuse. 

Survivors can only apply for redress under the National Redress Scheme if the institution responsible for their harm has decided to join the National Redress Scheme. A list of institutions who have not joined the National Redress Scheme is available on the National Redress Scheme website. Likewise, people who are in jail cannot apply for redress under the National Redress Scheme until they are released (unless there are exceptional circumstances). The National Redress Scheme is also not available for people who experienced institutional sexual abuse after 1 July 2018.

What does ‘Common Law’ mean?

A Common Law Claim for Damages is different to the National Redress Scheme.

A Common Law Claim is a claim brought under civil law, for injury which has occurred as a result of the responsible institutions’ negligence and failure to protect an individual from either sexual abuse and/or serious physical abuse and connected emotional abuse (depending on the State/Territory). These injuries may include depression, anxiety, post-traumatic stress disorder or substance abuse disorders. 

You cannot proceed with both a Common Law Claim and the National Redress Scheme and unfortunately, survivors who have accepted a payment from an institution under the National Redress Scheme are required to sign a document which removes their right to pursue a Common Law Claim.

There is no time limit for making a Common Law Claim, unlike the National Redress Scheme which is only running for a period of 10 years. As of 2018, all States and Territories have amended their legislation which allows for individuals to bring a common law claim for institutional sexual abuse at any time. 

Generally, there is no limit or cap on the amount an individual can receive through a Common Law Claim (depending on the State/Territory the abuse occurred and the age of the survivor), unlike the National Redress Scheme which is limited to a maximum payment of $150,000.00. 

Unlike the National Redress Scheme, a Common Law Claim focuses not only on the abuse, but how it has affected and impacted the survivor’s life. Likewise, people who only experienced serious physical abuse (and not sexual abuse) may be eligible to progress a Common Law Claim (apart from in the Australian Capital Territory and Western Australia).  

Compensation can be claimed for many different categories of loss (these are referred to as ‘heads of damages’) including past and future economic loss (if your ability to work or progress in your career has been impacted by the abuse), pain and suffering (the emotional distress and trauma associated with your abuse), loss of past and future superannuation, interest and future medical treatment like psychology or counselling sessions, and/or medication. 

Will I need to go to Court?

Many institutions are willing to negotiate a settlement or come to an agreement outside of court. In Queensland, there are laws which require defendant’s to attend a compulsory settlement conference before the documents are even filed in court. In other states such as New South Wales or Victoria, defendant’s may also be willing to participate in informal settlement conferences before filing court documents in an attempt to resolve the matter.  

Sometimes the claim will have to be ‘litigated’, meaning that documents are filed in court and a court proceeding is commenced. This does not always mean the matter will go to a trial. Littles Lawyers will always weigh up the risks and benefits of going to trial to ensure we can achieve the best possible outcome for survivors.  

Will other people find out about my claim?

A Common Law Claim remains confidential between the lawyers and experts involved in your case. If the matter has to be litigated, there are options available to ensure the identity of the survivor is protected. 

How much does a Common Law Claim cost?

Littles Lawyers conducts nearly all institutional matters on a ‘No Win No Fee’ basis. This means that you do not have to pay any fees upfront in order for us to start work, and if you do not have a successful outcome, we will not charge you for the work done on your matter.

How do I decide what the best option is for me?

It is very important for survivors of institutional abuse to talk to an experienced lawyer about all the options available before making any decisions. Littles Lawyers offers free initial consultations and has a dedicated team who solely run institutional abuse cases with an empathetic and compassionate approach.  Get in touch with our Littles experts today

Like? Share it with your friends.