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Gerard Malouf & Partners Manage Cases For Clients Across All Areas Of Personal Injury Law, Inheritance Disputes And Superannuation Disputes.

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Guide to Institutional Abuse Claims

Institutional abuse can be physical or psychological and can occur in various settings, including in foster care, day care, detention centres, religious institutions, nursing homes and psychiatric or mental health care facilities. If you’re a survivor of abuse, or aware of someone who may be suffering following abuse, know that the survivor deserves justice. 

In this article, we’ll offer a guide to institutional abuse claims, including the eligibility criteria, claims process and the next steps to take if you’re considering filing a claim.

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Signs of institutional abuse

Institutional abuse is a widely encompassing term that refers to an institution’s — emotional, physical, psychological, financial or verbal — abuse toward a person, whether child or adult. Abuse strips the person of their sovereignty, and may happen once, intermittently or consistently throughout someone’s lifetime. Specific examples of institutional abuse include:

  • Neglect in the form of withholding necessities like food, clothing, water, shelter and other essential needs.
  • Solitary confinement or unlawful use of restraint.
  • Forceful feeding.
  • Failure to respect privacy.
  • Threats of harm or abandonment.
  • Forced labour.
  • Sexual abuse, such as rape, inappropriate touching, trafficing, harassment, leering or indecent exposure.

 

Identifying warning signs in institutions can be difficult as abuse can and does occur subtly. With that said, inadequate staffing levels, a lack or complete prohibition of visitors and poor record-keeping are more overt, and should prompt immediate investigation and corrective action. If you’re a survivor of institutional abuse of any kind, it’s important to understand your rights and, if you choose, pursue compensation.

Where can institutional abuse occur?

Institutional abuse can take place across various settings, including:

 

This isn’t an exhaustive list; ultimately, abuse can happen to people of all ages wherever they’ve put their trust and safety in the hands of an authority or institution.

While no amount of money will undo the abusive events, legal compensation is made available for survivors. Let’s consider two possible legal options: National Redress Scheme Claims and Civil claims. Note that the specific compensation you may be entitled to depends on your specific circumstances; for personalised legal advice and insights into your entitlements, consider booking a free, non-obligation consultation with one of our claims lawyers.

What is the National Redress Scheme?

In 2018, the Australian Government established the National Redress Scheme to provide compensation (and redress in other forms) to those who have experienced institutional child sexual abuse.

In essence, the National Redress Scheme acknowledges that many children were sexually abused in Australian institutions and works to hold those institutions accountable. They then help those who experienced institutional child sexual abuse to receive paid-for counselling, a direct personal response/apology from the responsible institution and a redress payment.

The general eligibility criteria, as outlined on the National Redress Scheme’s website, are as follows:

  • You experienced sexual abuse when you were under 18 years of age.
  • You were born before 30 June 2010.
  • The abuse happened before 1 July 2018 while you were in an institution, on the premises of an institution or where activities of an institution took place (such as a camp), or by an official of an institution.
  • You are an Australian citizen or permanent resident when you apply unless an exception applies to you as a former child migrant who was sent to Australia from the United Kingdom or Malta prior to 1984, arrived in Australia without a parent or guardian and was made a ward of the state.

There are exceptions to this criteria. The full list of exceptions can be found here or can be personally unpacked during your consultation with one of our claims lawyers.

What is a civil claim?

A civil claim is where you sue the institution and/or offender responsible for the abuse. Most civil claims are resolved in a private settlement agreement wherein a neutral third-party mediator helps to facilitate a mutually agreeable settlement among the parties. There are instances where an agreement is unable to be reached through mediation and therefore requires litigation — the process of bringing your case before the Australian courts.

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Why choose a civil claim over the National Redress Scheme?

While your claims lawyer will advise you based on the specifics of your case, below are reasons why one legal pathway may be more situationally beneficial than the other. Limitations of the National Redress Scheme include: 

  • The maximum amount you can receive from a redress payment is $150,000, but the average payment received is only $87,955 (as of 9 December 2022).
  • All applicants have their abuse assessed based on set criteria to determine which category it fits into and the amount of applicable redress, with limited consideration as to how the abuse has impacted their life specifically.
  • An application under the Scheme is limited to instances of abuse where the child was abused in an institution who has joined the Scheme. If you were abused at an institution that has not joined the Redress Scheme you cannot receive a redress payment. 
  • An application under the Scheme is limited to instances of sexual abuse.
    Once you accept an offer of Redress, you are precluded from making any further claims for additional compensation against the institution in question.

Benefits of choosing this option over the National Redress Scheme

Below are three reasons why filing a civil claim may be more beneficial than pursuing compensation through the National Redress Scheme.

  1. Unconfined compensation amounts: A case is tailored specifically to you and the impact the abuse has had on your life, meaning that the compensation you receive could potentially be much higher than the capped amounts offered by the National Redress Scheme. From our experience, almost every civil claim results in a payment in excess of $150,000 (the maximum amount payable under Redress). Notably, some civil cases settle for in excess of $1m.

    A civil claim provides an opportunity to claim compensation for:

    • General damages/non-economic loss: Also referred to as ‘pain and suffering,’ this refers to the psychological and emotional harm caused by the abuse.
    • Economic loss: This refers to the loss of earnings and earning capacity that has resulted from the abuse. It also refers to the lost money from the medical treatments, therapeutic interventions, and domestic arrangements tied to the abuse.
    • Aggravated and exemplary damages: While rare, this refers to a payment that is intended to punish the defendant for their egregious behaviour and deter similar conduct in the future.

  2. Widened scope of accountability: A civil claim is not limited to the institutions that have registered with the Redress Scheme. A civil claim can be brought against any institution or individual offender. Civil claims are also not limited to sexual abuse; rather, a claim can also be filed regarding the other forms of abuse that were previously mentioned: financial, psychological, verbal and emotional.

  3. Favourable, prompt resolutions: The majority of civil claims will settle favourably for the plaintiff (person making the claim) without the need for litigation. If you choose to file a civil claim, regardless of how your claim proceeds, your GMP Law claims solicitor will guide you through the full process, ensuring you receive the compensation you’re entitled to.

Compensation lawyers for institutional abuse claims

If you or someone you know has suffered institutional abuse of any kind, know that redress options are available. While the survivor will need to recount the events to their lawyer, and while we understand this can be extremely difficult, we’re here to listen to your experiences and help you seek justice. 

We offer our clients our no-win, no-fee policy, meaning that you only pay if we’re successful with your case. Additionally, through this policy, we take on all the costs associated with your case, including court fees and evidence-related costs. That way, you can gain access to our expert legal services without the added stress of a personal financial burden. 

Click here to book a free, non-obligation consultation, or call us on 1800 004 878.

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Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers
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Gerard Malouf & Partners manage cases for clients across all areas of Personal Injury Law, Inheritance Disputes and Superannuation Disputes.
About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Lawyers
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Resources
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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