Achieving the best compensation for survivors of childhood abuse

Difference between a common law claim and the national redress scheme for victims of childhood abuse.

Understanding the difference between a common law claim and the national redress scheme

Historically, the lasting consequences of child abuse, particularly Post-Traumatic Stress Disorder (PTSD), has prevented survivors throughout Australia from accessing the compensation they rightfully deserve. In this article, we look at the primary differences between compensation via the National Redress Scheme (“NRS”) and a common law claim due to someone else’s negligence.

In handing down their report, The Royal Commission into Institutional Responses to Child Sexual Abuse noted it took survivors on average, 22 years to speak up about the abuse they had endured. This meant survivors were usually well out of time to bring a claim for compensation.

Throughout Australia, recent changes in legislation paved the way for survivors of abuse to access compensation for the pain and suffering and the financial losses caused by the abuse.

How does this apply to you?

You, or someone you know, may be entitled to access redress through the National Redress Scheme or bring a ‘common law claim’ to seek substantial compensation.

An application for the National Redress Scheme is assessed and paid in line with specific criteria, referred to as the ‘Assessment Framework’. A common law claim, however, will compensate a survivor of abuse on a case by case basis.

The differences between the National Redress Scheme and a common law claim

In assessing which option is right for you, it is important to be aware of the key differences between a redress payment and common law compensation, noted as follows:

 

National Redress Scheme Application

Payment acknowledging abuse occurred

Common Law Claim

A legal claim seeking compensation for an injury incurred by an
individual from someone else’s negligent act.

Abuse covered

Sexual abuse only Sexual, physical and associated psychological abuse

Who can access?

Must be Australian citizens or permanent residents who have experienced child sexual abuse in connection with an institution that has registered to join the scheme, and the abuse occurred before 1 July 2018.

Any individual who has experienced child abuse (not just sexual abuse) in an institution, in connection with an institution, or at the hands of an individual is entitled to submit a claim for compensation through the common law process.

Who cannot access?

  • Individuals who experienced abuse in institutions that have not joined the scheme.
  • Individuals who are incarcerated at the date of applying.
  • Individuals who have been sentenced to a jail term of five years or longer may not be entitled to receive redress.
Common law is not possible if the individual has accepted a payment under the NRS. It is therefore extremely important to get legal advice from a lawyer experienced in child abuse, before accepting any payment from the NRS.

Time restrictions

Must apply for redress before 20 June 2027, and be over the age of 18 at the date of applying (or alternatively turn 18 before 30 June 2028). In Queensland, there are no time restrictions for bringing a common law claim for sexual, physical and associated psychological abuse suffered as a child.

Likely amount of compensation

Capped at $150,000.00 for severe abuse in extreme circumstances. (As of 1 November 2019, the average redress payment was $80,466.00). There is no cap on the total sum of compensation awarded to a survivor. 

 

What’s the next step for survivors of childhood abuse?

If you, or someone you know, has experienced abuse as a child, whether it be sexual, physical or psychological abuse, you should seek legal advice immediately about the compensation options available to you. 

At Hall Payne Lawyers, we understand no amount of money can take away the pain and suffering of survivors, however, a member of our expert team of lawyers will be able to discuss the specific circumstances of your case and the compensation options available to you.

Each member of our Abuse Law team understands that for a survivor, discussing the particular circumstances will be difficult, however it is important that survivors know their rights. We encourage survivors, or the family of survivors, to make contact with one of our lawyers as soon as possible.

This article has been written by graduate solicitor Catherine Gabriel and personal compensation lawyer Megan Stanley.

Legal advice and assistance continues during COVID-19

We continue to provide our client services during the coronavirus outbreak.  

Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary.

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

We continue to provide our client services during the coronavirus outbreak.  

Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary.

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au


  This article relates to Australian law; either at a State or Federal level.

The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.


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Get in touch with today's blog writer:
Megan Stanley

Senior Associate in Personal Compensation Law

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