A lawyer, who was one of the first to represent historical sexual abuse victims, has noticed a rise in civil law suits since the National Apology on 22 October 2018 and the start of the Commonwealth Redress Scheme in July.
Angela Sdrinis, of Angela Sdrinis Legal, who was one of the first legal practices to represent historical child sexual abuse clients said her firm and many legal practices had experienced a significant increase in claims.
“We have noticed an increase, and frankly we are all surprised,” she said. “We didn’t really expect it, given the Royal Commission ran for five years … I mean where have these people been?”
“We do know that one of the significant obstacles to coming forward for survivors is the guilt and shame they feel, so perhaps it has taken all of this for these people to finally feel they can.”
“Perhaps with the apology at that level and the establishment of a national redress scheme, they finally feel as if they have permission to come forward.”
Ms Sdrinis said her firm was receiving about 20 new clients a month and the civil law claims were producing results, with the “most common range for civil historical abuse settlements between $200,000 and $500,000.”
She said while still rare, they were also now seeing million dollar compensation payments in civil suits, with one soon to resolve that will settle between $1.25 and $1.35 million.
“I am not saying that every claim will have this result and it is still a heavy evidentiary process, but compared to the situation five or 10 years ago, when we were happy to get $150,000 … I have to pinch myself really, it’s becoming more and more possible.”
Ms Sdrinis also represents internationally and keeps up to date on developments in the Republic of Ireland, the United Kingdom, Northern Ireland and Scotland.
“I’m so proud of Australia,” she said. “We are certainly not alone in this and our Redress Scheme is not perfect and yes, it’s not exactly what the Royal Commission recommended, but we’ve acted on it, and we’ve done it better than other countries in this situation.”
Citing the UK where little has happened following its inquiry and Northern Ireland's delayed Historical Abuse Compensation Scheme, she said “people are dying over there before they can have their claims settled.”
“In Australia we’ve acted on it and the important thing for abuse victims is that they have a range of legal options, and the redress scheme is still there if they cannot progress in other ways.”
She said it was important for all survivors who have suffered abuse in an institutional setting to seek legal advice from an expert in institutional abuse before deciding to make a redress claim.
“Even where a survivor has had a prior settlement or has previously sought advice, the law in this area and the options for recovering compensation have been changing dramatically in recent years and a claim, which may previously have not been viable in a court of law, may now be possible due to these changes.”
According to Ballarat Catholic Diocesan business manager Andrew Jirik; “The redress scheme presents another avenue for survivors and is designed to be a less-litigious avenue for victims, as it should be … the victims have been through enough without making the redress process administratively difficult.”
He said with claims through the redress scheme, the Church has an opportunity to respond to questions “which ultimately assists the scheme to decide if there was a ‘reasonable likelihood’ the alleged abuse occurred (as opposed to “on the balance of probabilities” in a civil case.”
He said at this stage they did not have a reliable way of estimating what the ultimate cost of the scheme would be for the (Ballarat) Diocese.
Ballarat lawyer, Ingrid Irwin, from Irwin and Irwin Law, said there had not been immediate effect.
“We were waiting for an avalanche after the start of the Commonwealth Redress Scheme, but it didn’t happen. There was a lull of about three months, but then it started.”
She said there had been an increase since the National Apology and also after successful large payouts, like the recent Geelong Grammar School case where a survivor was awarded a settlement of $1.1 million, despite having previously settled for a much smaller amount.
“That was a significant breakthrough for people wanting to revisit previous compensation payments, and I think people are feeling better about it,” Ms Irwin said.
“Cases like Hand v Robert Leonard Morris & Anor (2017) VSC 437 show the possibility for considerable damages awards,” she said, but warned, “although the abolishment of the Statute of Limitations in child sexual assault matters was hugely beneficial, victims still need to convince a court that the passage of time does not prejudice the defendant’s ability to fairly defend the allegations, (and) with cases of historic sexual abuse, this can be quite difficult, as we saw in the case of Connellan v Murphy (2017) VSCA 116.
“Courts need to be tougher on practitioners who show flagrant disregard for the Civil Procedure rules as unfortunately it is still an expensive and lengthy lawyer’s game much of the time.”
She said the law was constantly changing and more attention was now being paid to things such as “undue influence” when victims signed statements or Deeds of Release years ago.
For people with criminal convictions, the redress scheme rules had changed from total exclusion to those with criminal convictions of five years or more.
“It is very much a case-by-case scenario”, Ms Irwin said, but that clients were “feeling more confident since some of the big payouts.”
Lawyer Judy Courtin, from Judy Courtin Legal, is critical of the Commonwealth Redress Scheme and says, ”I just don’t think the churches and other institutions really understand or appreciate the ongoing trauma for victims and survivors of institutional child sex crimes.”
“The primary justice goals for victims of child sex crimes are: Criminal accountability of the offender; criminal accountability of the members of the hierarchy who concealed the crimes (thus enabling the sex offences to continue), and financial accountability of the institutions in the form of compensation.”
Underpinning these elements of justice is the exposure of the truth,” Ms Courtin said.
She said the “legal landscape” in Victoria, and other states are slowly following, is shifting by the day and “unlike the period up to about 2015, when one could not sue the church for the psychiatric harm caused by institutional child sex crimes, many victims now have an equal access to our civil courts,” she said.
However, she said, the civil court process is “highly challenging, confronting and distressing for people who are already highly traumatised,” and can can take up to 18 months before a trial for an historical child sexual abuse matter is scheduled.
Ms Courtin said the amounts being awarded also depended on factors such as: the degree of psychiatric harm; the ability (or not) of the person to complete their education (secondary and tertiary or trades) and to enter the workforce (because the majority of victims’ lives are deleteriously impacted in terms of education, employment, interpersonal relationships and psychiatric health.
If successful, she said some cases can be awarded between $1.5 million and $2 million and others, “anything from $100K to $1 million’’.
She said she was certainly busy, but it was impossible to know the number of issued cases as so many law firms were now dealing with these matters.
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