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McDonald, Leanne --- "Procedural Complexities in Historical Child Sexual Abuse Matters" [2023] PrecedentAULA 64; (2023) 179 Precedent 25

Procedural complexities in historical child sexual abuse matters

By Leanne McDonald

In 2012 Julia Gillard announced the Royal Commission into Institutional Responses to Child Sexual Abuse. The final report was handed down five years later in December 2017. The Royal Commission handled 42,041 calls, received 25,964 letters and emails, held 8,013 private sessions and referred 2,575 matters to authorities, including police.^[1] There were 444 hearing days over 11 locations, and 1,302 witnesses spoke up, resulting in 35 case study reports. More than 1 in 10 survivors participated in a private session while they were in prison. Of these survivors, 91 per cent were male. For 31.4 per cent, the Royal Commission was the first time they told their story.^[2]

Survivors talked about ‘having their innocence stolen, their childhood lost, their education and prospective career taken from them and their personal relationships damaged. For many, sexual abuse is a trauma they can never escape’.^[3] Of those in prison, most male survivors revealed that they thought child sexual abuse would be seen as a weakness by their peers. There is also a culture around being an informant and some saw reporting the sexual abuse they suffered as going against the prison code.

The Blue Knot Foundation reports on their website^[4] that a study of 27 correctional centres in NSW found that 65 per cent of male and female prisoners were victim-survivors of child sexual and physical assault. One could assume that the numbers across the country are of a similarly high nature.

There has been a tremendous amount of law reform following the Royal Commission: rolling reform in each state and territory in relation to the limitation period for childhood sexual abuse and, in some states, for physical and emotional abuse; overturning previous deeds of settlement; presumptions in terms of liability; and the difficulties with the Ellis Defence. But there is still a way to go to truly address the recommendations made by the Royal Commission and to level the playing field for survivors of abuse.

The Royal Commission noted that often the injuries from childhood abuse are lifelong and that, because of the injuries themselves and the impact, often survivors are unable to seek help and compensation.

NATIONAL REDRESS SCHEME

The very first recommendation of the Royal Commission’s Redress and Civil Litigation Report was:

‘A process for redress must provide equal access and equal treatment for survivors – regardless of the location, operator, type, continued existence or assets of the institution in which they were abused – if it is to be regarded by survivors as being capable of delivering justice.’^[5]

In July 2015, Finity Consulting Pty Ltd provided a report to the Royal Commission on the National Redress Scheme with participant and cost estimates.^[6] The numbers were stunning. The report estimated a participation of 60,000 in the scheme nationally.^[7] In April 2023, the Australian Child Maltreatment Study^[8] confirmed the shocking number of Australian children who experience sexual, physical and emotional abuse, as well as neglect and domestic violence.

As of 15 September 2023,^[9] the scheme had received 30,680 applications, made 14,505 decisions, including 12,762 payments totalling approximately $1.133 billion, with an average of $88,544. However, the scheme has restrictions in terms of who can apply, based on which institutions are participating, prison sentences etc. The timeframes for delivery of redress outcomes have been criticised as longer than anticipated, and the scheme will need to consider how it will handle the number of applications closer to 2027 (applications close 30 June 2027) when there will likely be a large influx. We can speculate as to whether the applications will hit the predicted 60,000.

The National Redress Scheme can provide some counselling, a redress payment and a direct personal response (apology) from an institution. The payment available ranges from $5,000 through to $150,000, depending on the type of abuse suffered, the impact, related non-sexual abuse and whether the person was institutionally vulnerable. The matrix in the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 (Cth)^[10] sets out the categories of payment.

Earlier payments, including payments from other redress schemes and out of court settlements, are indexed, taken into account and deducted from the final offer.

Once an offer is made, a survivor has six months to decide on that offer (which can be extended in some circumstances). Unless there has already been a civil judgment or settlement paid which is less than the offer amount, the victim-survivor must choose either to accept the redress offer or to proceed with a civil claim.

A survivor may prefer to go down the redress path if they do not feel emotionally able to go through the more complex civil process. For example, they would not have to undergo a medico-legal assessment to submit a redress application and would not have to meet a liability threshold. However, if liability can be proven and quantum is likely to be significantly higher than the $150,000 maximum, then redress will not give the best financial outcome for the survivor.

THE CRIMINAL PROCESS

There has been a lot of talk of the inadequacies of the criminal process, particularly in recent years. Brittany Higgins said of her difficulties with the criminal process:

‘My life has been publicly scrutinised, open for the world to see. His was not. Many of you in the media have been called out for labelling the last few weeks “the Higgins trial”. But I don’t blame you because it’s very clear who has been on trial...’^[11]

Publicity surrounding Brittany Higgins, Grace Tame, Saxon Mullins and Paris Street has highlighted that survivors feel like witnesses, with no control in the process as they are not a party to the proceeding. The process can be brutal and has been criticised as not being ‘trauma informed’.

The Queensland Women’s Safety and Justice Taskforce handed down Hear Her Voice: Report Two: Women and Girls’ Experiences as Victim-Survivors of Sexual Violence. It sets out that ‘Victim-survivors told the Taskforce that they have been traumatised by the offence of sexual violence, and then retraumatised by the justice system’.^[12]

Michael Bradley, a well-known advocate in this space, writes:

‘We ask survivors to submit to being re-traumatised by the system. We do it knowing that, as soon as survivors do this, their stories will cease to be theirs; that they will personally bear the burden of the case against their rapist, while having no control over it; that the man they say raped them will be able to maintain his silence, to never say a word; that, no matter the outcome, there is no mechanism in the law that will force him to take responsibility for his own actions, as opposed to culpability being imposed upon him. Why don’t survivors report? Why the hell would they?’^[13]

That being said, there are some who want to go through this process to protect others from abuse or to see the perpetrator held to account. The statistics show that this outcome is the exception rather than the rule.

There is a ‘justice gap’ between those cases of sexual assaults that actually occur, those that are reported and those that result in charges and court proceedings. There are high rates of attrition and low numbers that progress through the justice system and result in conviction.

Although there have been improvements in some jurisdictions in recent years to lessen the retraumatisation of victim-survivors, there is a long way to go:

‘Many victim-survivors feel disempowered as they discover the limited rights they have through this process ... One victim told us: “As a victim of a serious crime, I had less rights than the offender who was declared not guilty.”’^[14]

THE CIVIL PROCESS

So is the civil process the answer? The advantage of the civil process is that the claim is driven by the victim-survivor, and relates directly to their injuries and their loss. However, it is becoming increasingly difficult to navigate through the obstacles put up by the process and the defendants in this area.

The recent spate of decisions granting stays^[15] weighs heavily on those acting for plaintiffs in this area. At the time of writing, we are eagerly awaiting the decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.^[16] The Australian Lawyers Alliance (ALA) is campaigning for further legislative reform in this space. The death of a perpetrator should not automatically shut down a plaintiff’s case, though this is routinely raised as a threat throughout the process by some defendants, even in cases where the allegations had been put to the perpetrator and there are multiple other victim-survivors who support the allegations.

Difficulties arise in obtaining records from some institutions that do not have the capacity to deal with the volume and complexities of the requests they are receiving. It is not uncommon in some jurisdictions to wait 12 months or more for records relating to the plaintiff’s time in the institution. In matters where the perpetrator is elderly or unwell, this becomes a race against the clock.

It can be difficult to find appropriate psychiatrists and counsel who are willing to act in these matters and those who are can have extensive waitlists. Victim-survivors have often been living with their trauma for decades. Delays in medical examinations can lead to increased anxiety. The sheer volume and nature of work for lawyers practising in this area can lead to matters changing hands on both sides multiple times, with some needing to step out of the arena to prevent vicarious trauma or burnout. The constant battle to progress matters can be disheartening.

There is a lack of transparency on how decisions are reached through the National Redress Scheme and how those victim-survivors may progress through the special assessment process. This can make advice particularly difficult to provide for those clients with serious criminal convictions where liability may be difficult or quantum may fall in the vicinity of the redress payment. It leaves victim-survivors with difficult decisions, and practitioners without a reference point for their advice.

If a claim is run against an individual, it can be difficult to locate and keep track of assets and hence recover the damages if successful. Often plaintiffs are forced to factor this in when negotiating a settlement, accepting less than they would be entitled to at judgment. At times, individual perpetrators can be obstructive or ignore the civil process, increasing the legal costs.

Apologies are not routinely given in civil claims, though it is recognised by most practitioners as an important part of the process. The Royal Commission looked at the importance of genuine apologies and some institutions contribute positively to the acknowledgement and healing process by the way in which they deliver their apologies. Unfortunately the converse can also be said to be true, with some institutions refusing to provide apologies at all or suggesting a separate application be made through the redress process for a personal response. The apology has the power to help heal, but also has the power to cause further psychiatric damage if not handled appropriately.

Finally, there has been an increasing amount of research into how trauma affects our bodies on a cellular level. The Yale School of Medicine published a newsletter on epigenetics and trauma, and noted:

‘Children who suffer abuse, neglect, or trauma often develop depression and other psychiatric illnesses. As adults, they have a greater incidence of medical illnesses, including cancer, cardiovascular disease, and diabetes’.^[17]

This rings true for me: I have lost more clients and had more suffer from strokes and heart attacks at a younger age than in any other area of personal injury law.

Despite the difficulties in practising in this area, practitioners should be encouraged by some of the results the courts are delivering for these plaintiffs, as discussed below. The amounts being awarded are reflective of the significant effect the abuse has had on these victim-survivors. Further, comments made by the judges can be seen to provide the very important step of providing belief in the plaintiff.

In Tasmania, in the matter of XAM v ZWM,^[18] Blow CJ awarded a survivor $5.3 million in damages. This was a matter of familial abuse, in which the father pleaded guilty to charges related to the abuse and was imprisoned. Chief Justice Blow awarded aggravated damages ‘because of the repeated breaches of trust on the part of the defendant sexually abusing his son, and because of the unusually dreadful conduct on his part during and since 1999’.^[19]

Damages were awarded as follows:

• Past impairment of earning capacity: $1,563,000.

• Past superannuation contributions: $257,000.

• Interest on those amounts: $577,000.

• Future impairment of earning capacity: $2,022,000.

• Future loss of superannuation contributions: $378,000.

• Past medical and pharmaceutical expenses: $34,000.

• Future medical and pharmaceutical expenses: $115,000.

• Non-economic harm: $300,000.

• Interest regarding past non-economic harm: $67,500.

Justice Lonergan in the NSW Supreme Court handed down her decision in the matter of Haynes by her tutor Karen Lindley v Haynes.^[20] The matter was one of familial abuse between a father and daughter. Again, there were a number of incidents of sexual abuse that were the subject of criminal proceedings, and the father was in prison at the time of the judgment. The claim for damages was limited to general and aggravated damages. The Court awarded $500,000 in general damages with an additional $100,000 for aggravated damages and $240,000 for interest over 30 years. The total assessment came in at $840,000.

In PBC v Geelong College,^[21] a survivor of abuse at Geelong College was awarded $2.7 million. In this case, the plaintiff was abused by a volunteer at the school. The abuse occurred after another boy complained to two teachers about the assaults that he and other classmates were subjected to from the same man. The school did not argue over whether the abuse occurred, but whether it was liable. Justice O’Meara awarded the plaintiff:

• $300,000 for pain and suffering

• $676,583 for past loss of earnings

• for future loss of earnings $1,634,995, and

• for medical and other expenses $20,741.

Justice Soraya Ryan ordered a former teacher of Toowoomba Grammar School to pay almost $1.5 million in damages to the plaintiff in the matter of Brockhurst v Rawlings.^[22] Her Honour said that she:

‘considered it appropriate to make an additional award for exemplary damages to convey the Court’s denunciation of the defendant’s abusive conduct and to ensure that the plaintiff is adequately compensated. The defendant’s utterly selfish conduct included her sexual pursuit of the plaintiff, even after she had been warned to keep away from him. Her conduct took from him the opportunity to develop, in his own time, as a mature, sexual adult.’^[23]

The judgment consisted of:

• General damages of $65,000, which took into account the nature of the battery – that is, that it involved violation of his personal integrity.

• Interest on general damages at $16,250.

• $613,292 for past economic loss with interest at $383,920.

• Past loss of superannuation at $64,599 with interest of $40,438.

• Future economic loss at $305,984 (with a discount for vicissitudes of $45,897).

• Future loss of superannuation at $31,121.

• Out of pocket expenses at $10,000.

• Aggravated damages in the amount of $43,750.

• Exemplary damages in the amount of $15,000.

WHERE TO FROM HERE?

The civil process continues to be an important and advantageous avenue for victim-survivors of abuse. It is a complex area of law with multiple considerations that lie outside of the traditional sphere of personal injury matters. It must be said, though, that the current procedural blocks are making it difficult for victim-survivors and practitioners in some cases. It is up to organisations such as the ALA to continue to make submissions and campaign for reform in this area.

The civil procedure can provide substantial relief for claimants. If run in a trauma informed way, there is more than compensatory relief available to survivors. The ability to tell their story if they want to, in their own way, throughout the process can be a powerful tool for victim-survivors. There is very often the opportunity for the victim-survivor and the representative of an institution to speak privately. This will often take quite some time and will go through acknowledgement, apology and often explanation of how systems and processes have changed to better protect children. At times, I have seen an immediate physical difference in my clients. Their shoulders lift, they dry their tears and feel that they have had their say, that they have been listened to and believed.

There is still reform needed in some areas and the civil process is not a perfect one by any account. The ALA Abuse Law Special Interest Group (SIG) is focused on preparing submissions whenever necessary, and campaigning to ensure that our process continues to improve the justice experience of the victim-survivor. Personal stories help in these submissions. If you can provide examples of where the process has failed, please reach out to the SIG through ALA Policy & Advocacy Officer Nadia Elads: nadia@lawyersalliance.com.au. It will help us to identify patterns, for example, a particular department taking too long to deliver documents, and may assist in making important change in this very challenging environment.

Leanne McDonald is special council at Kennedy Spanner Lawyers and chair of the ALA’s Abuse Law SIG.

^[1] Royal Commission into Institutional Responses to Child Sexual Abuse <https://www.childabuseroyalcommission.gov.au/>.

^[2] Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 5, 25.

^[3] Ibid, ‘Preface and Executive Summary’, 2.

^[4] Blue Knot Foundation, Facts and figures <https://blueknot.org.au/resources/facts-and-figures/>.

^[5] Redress and Civil Litigation Report (2015), 4.

^[6] ‘Royal Commission releases consultation paper on redress and civil litigation’ (Media release, 30 January 2015) <https://www.childabuseroyalcommission.gov.au/media-releases/royal-commission-releases-consultation-paper-redress-and-civil-litigation>.

^[7] Finity Consulting Pty Ltd, National Redress Scheme Participant and Cost Estimates (Report, 2015), 7.

^[8] ‘ACMS findings launched’ <https://www.acms.au/>.

^[9] National Redress Scheme, ‘National Redress Scheme – Update’ (22 September 2023) <https://www.nationalredress.gov.au/about/updates/1671>.

^[10] Made under s32 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth). See pt 2, s5.

^[11] ‘Brittany Higgins says justice system fails complainants in first statement since Lehrmann charges dropped’ SBS News (4 December 2022) <https://www.sbs.com.au/news/article/brittany-higgins-says-justice-system-fails-complainants-in-first-statement-since-lehrmann-charges-dropped/zrexlboor>.

^[12] Women’s Safety and Justice Taskforce, Hear Her Voice: Report Two, Volume One: Women and Girls’ Experiences as Victim-Survivors of Sexual Violence, 49.

^[13] M Bradley, System Failure: The Silencing of Rape Survivors, Monash University Publishing, October 2021.

^[14] Above note 12, 54.

^[15] For example, Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78; Fields v Trustees of the Marist Brothers [2022] NSWSC 739; Smith v Council of Trinity Grammar School [2022] NSWCA 93; GMB v Unitingcare West [2022] WASCA 92; RC v Salvation Army (Western Australia) Property Trust [2023] WASCA 29; MXS2 v Georges River Grammar School [2023] NSWSC 529; Willmot v Queensland [2023] QCA 102; RC v Salvation Army (Western Australia) Property Trust [2023] WASCA 29; BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431; ADA v Queensland [2023] QSC 159; CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWSC 1000; Stewart v Ma [2023] NSWSC 1046.

^[16] [2023] HCATrans 76.

^[17] Yale School of Medicine, ‘The epigenetics of child abuse’, Yale Medicine Magazine, 2014 – Autumn <https://medicine.yale.edu/news/yale-medicine-magazine/article/the-epigenetics-of-child-abuse/>.

^[18] [2021] TASSC 64.

^[19] Ibid, 121.

^[20] [2022] NSWSC 581.

^[21] [2021] VSC 633.

^[22] [2021] QSC 217.

^[23] Ibid [495].