Better access to justice for survivors of institutional abuse

Institutional abuse survivors will shortly be able to have their original compensation claims reviewed, following The Victorian Government’s decision to overturn unfair historical payments.

Proposed changes to the Limitations of Actions Act announced recently, will mean victims can apply to the court to set aside a past settlement deed of release or judgement relating to child abuse.

Slater and Gordon National Practice Group Leader (Public Liability) Barrie Woollacott said those who previously had little option but to accept a basic and inadequate compensation offer and sign a deed of release, often without legal advice, could now have their claims reviewed.

“In previous years, survivors had no choice but to take the low amount of compensation from institutions on offer or receive no assistance and in many cases this was unfair and unjust as the survivor had nowhere else to turn. And to make matters worse many of the early settlements required the survivors to keep the settlement confidential” Mr Woollacott said.

“The legislation that is due to be amended will means courts can set aside the deeds if it’s just and reasonable to do so.

“The abuse that the survivors have experienced causes devastating effects on their lives, their mental health, ability to work and form relationships with others.

“It’s disappointing that some of these institutions that forced survivors to sign up to inadequate settlements in the past are still trying to enforce these unfair agreements.

“Survivors should not have to face legal hurdles to seek compensation on top of this. These changes would not be necessary if the institutions started to protect the victims they damaged rather than protect themselves.”

The change is not limited to sexual abuse survivors and will include other forms of child abuse where a deed of release was signed.

Mr Woollacott said those who did receive legal advice would often be advised by their legal advisor to take the compensation offered by institutions as there was no other avenue available to them to claim compensation.

“Years ago, that was as good as it was going to get and now thanks to these changes people will have more options that will enable them to seek more appropriate and fair compensation,” he said.

“This legislation removes another road block for people who have suffered greatly and will allow them to seek further compensation for claims made many years ago.

“The releases didn’t always prevent people from talking about the abuse or their settlements but they did prevent them from taking other actions to seek compensation.”

The changes follow the ‘Ellis defence’ being abolished by the NSW and Victorian Governments, which prevented survivors from suing unincorporated organisations including churches and other institutions.

These changes made in January 2019 were retrospective, making them accessible to survivors of past, present and future child abuse.

“Institutions can no longer rely on this defence which was removed following Royal Commission into Institutional Child Sex Abuse recommendations,” Mr Woollacott said.

“The Royal Commission showed that institutions had set up their own schemes which were skewed in their favour over the interests of the victims. These inhouse schemes were designed to control how much compensation people could claim.

He said the National Redress Scheme was set up by the Federal Government to achieve a consistent approach to holding institutions accountable, providing support and equal access to services, recognition of the abuse and redress-payments for survivors.

Slater and Gordon has acted for survivors of child sexual abuse for more than 20 years. Claims have involved the Catholic Church, Anglican Church and various other religious and secular institutions such as the Fairbridge Foundation.

These claims have been made in Victoria, Western Australia, Queensland and New South Wales, where we have obtained compensation for many survivors by way of negotiated settlements during difficult, costly and hard-fought litigation.

Slater and Gordon has acted for individuals who have obtained compensation through out-of-court schemes, including the Towards Healing and Melbourne Response protocols of the Catholic Church as well as other institutional entities and welcomes the proposed changes as long overdue.