What is ‘institutional abuse’?
Any physical, psychological or sexual mistreatment suffered whilst in the care of an institution or a person associated with or employed by an institution can constitute institutional abuse.
An institution includes a school (public or private), a club (e.g. sporting or recreational), a youth justice centre, an adult prison, a church or other religious establishment, or a residential care home for children or adults.
What is ‘historical institutional abuse’?
In many cases, institutional abuse involves the mistreatment of children – and is generally not reported at the time. These are referred to as cases of historical institutional abuse.
What are the legal options?
In NSW there are 2 options –
- A claim under the National Redress Scheme. The highest amount able to be paid is $150,000 and it is very rare for abuse survivors to receive such high amounts.
- A civil damages claim which if successful, generally results in a much higher amount of compensation than what can be claimed via the National Redress Scheme. Civil damages claims are typically run by lawyers with experience in abuse claims.
Someone who has received compensation via the National Redress Scheme can have that award set aside or repaid and bring a civil claim instead.
Are there time limits for making a claim?
There is no time limit for a claim where the abuse occurred to an individual under the age of 18.
How is compensation in a civil claim calculated?
The amount of compensation depends on the severity and duration of the physical and/or psychological injury.
Compensation can include payments for –
- Pain and suffering for either physical or psychological injury (or both)
- Loss of income if the person abused is unable to work due to the injuries
- Medical and treatment expenses in the past and ongoing
- Assistance with daily living – domestic care etc.
What amounts of compensation can be obtained in a civil claim?
For pain and suffering, the most that can be awarded – in 2024 – is $722,000. However, this amount is awarded only in the most extreme of cases. Pain and suffering is assessed as a percentage of the most extreme case. The majority of cases involve pain and suffering for psychological abuse and most awards tend to be in the range of 30-40% of the most extreme case – currently $166,000 to $289,000.
How long will a civil claim take?
Once a case is ready to be filed in court, the case takes between one to two years to complete – depending on whether the case is commenced in the District or the Supreme Court.
Before filing, the case needs to be properly investigated and this is done by obtaining records from the institution and arranging for medical appointments to be organised and reports obtained. Typically, reports are obtained from psychologists/psychiatrists who regularly assess victims of institutional abuse.
Each institutional abuse claim is different. Many are complex and require solicitors to gather evidence that can be difficult to obtain from the institution responsible.
Survivors may have experienced a single act of mistreatment. Other survivors may have sustained multiple instances of abuse perpetrated over many years.
Paying for the claim
Solicitors who are experienced in abuse claims are able to assess the strength of each claim based on their experience in other matters.
If the solicitor handling the claim believes a claim to have reasonable prospects of success, that solicitor will usually charge for work done on a ‘no win no fee’ basis. This means that the work is paid for only if the claim is successful. In other words, no costs are paid if the case is run and lost. A ‘no win no fee’ costs arrangement is an indication that the solicitor believes the case is strong and can be won. Otherwise the solicitor would not be prepared to take the case.
The cost of medical reports and court filing fees – legal expenses or disbursements – are paid for by the firm or a disbursement facility organised by the solicitor.
What does the institution pay?
At the end of a successful claim, a proportion of the costs charged by the survivor’s solicitor will be paid for by the institution – usually 70% of the costs. The legal costs not paid by the institution (30%) is paid from the compensation.
Costs agreement
All solicitors – not only in NSW but in all other states and territories – are required to have a signed costs agreement in place before a case can be started. The costs agreement sets out how the fees are charged and a likely estimate of costs. The costs agreement will also set out the amount likely to be required to be paid for disbursements. The costs agreement needs to be signed at the very beginning of the claim and once signed, the solicitor can start working on the claim.
Contact the Institutional Abuse team at Catherine Henry Lawyers
To confidentially discuss your needs, contact us on 1800 874 949 or fill in the form below and we will be in touch.
