Chapter 8 - Reparation and redress schemes

In my heart I feel if there is to be real peace for myself and others like me, I expect some acknowledgment, some justice...from society. I would like to be treated respectfully and fairly - to be given a fair hearing, the Australian "fair go"...Lawful institutions, whether under the State or Federal Government, the Churches or different religious organisations, play a legitimate role in creating justice for victims. There is no simple way for society to shirk the responsibility of recognising the torture and pain that was inflicted upon innocent children.[410]

Measures of reparation

8.1 There was much discussion in evidence during the inquiry on the means by which reparation for past wrongs experienced by care leavers could be made. A variety of mechanisms were canvassed and these included:

• legal options through the courts;

• various redress/reparations schemes, both overseas and in Australia;

• internal Church-based redress schemes;

• redress through victims compensation tribunals;

• establishing a Royal Commission; and

• significantly boosting and enhancing dedicated services for care leavers.

These options are discussed below. The provision of services for and acknowledgment of care leavers in terms of offering redress are discussed in later chapters.

Civil litigation

8.2 One option open to victims of abuse whilst in institutional care is to pursue compensation through the civil court system. Some care leavers indicated a clear desire to pursue civil actions for damages for institutional child abuse. One care leaver stated:

Why can't I have my justice? I believe that if I had my justice in a court room then maybe I could get on with my life...I want my day in court with these people, they [the church] are liars and will say anything just to shut you up. (Sub 219)

8.3 There are a number of potential advantages that the civil system offers. These include:

• the openness of the process and the resultant 'public record' - this may also play a role in prevention and deterrence;

• the fact-finding capability of the process;

• the ability to hold defendants publicly accountable for the harms suffered;

• the larger amount of financial compensation available - generally the financial compensation available under redress schemes is much less than would be awarded if the person were successful in a civil action; and

• as the judicial system is accorded a certain legitimacy and authority, a successful outcome might be considered a greater 'victory' than through alternative means of resolving claims.[411]

8.4 A number of Churches and religious Orders have entered into settlements as a result of the commencement of legal action by victims. The Christian Brothers have entered into many out of court settlements with former residents of homes operated by the Order in Victoria and Western Australia.[412] Settlements of this nature have been a feature in the USA, Canada and Ireland.

8.5 In August 1993, civil legal action was begun in the Supreme Court of NSW against 21 Catholic Church defendants, though proceedings were eventually discontinued against all except the Christian Brothers. The approximately 250 plaintiffs were mostly, but not exclusively, former child migrants, of Christian Brothers' homes in Western Australia. The case involved complex legal issues and included matters of jurisdiction, statutes of limitation, and lack of corroborating witnesses. Most events under consideration took place in the 1940s and 1950s.

8.6 While the Christian Brothers accepted that some individual Brothers had physically and sexually abused some of their students, they did not accept the accusation that there had been neglect or dereliction of duty at the level of the Order's administration. Consequently, an out of court settlement was reached in August 1996. The Christian Brothers provided $5 million of which $1.5 million was for the plaintiffs legal costs and $3.5 million was placed in an independent trust to be distributed, against agreed criteria, to the plaintiffs who signed on.[413]

8.7 Other religious Orders have also entered into out of court settlements. In 2002 the St John of God Brothers reached an out of court settlement of $3.64 million with 24 intellectually disabled men who had been sexually abused while in their care. Individual compensation payments ranged from $50 000 to $400 000. Broken Rites stated that previously, individual victims of this Order received financial settlements 'with ridiculously small amounts of money being paid, and complainants being required to sign secrecy agreements'.[414] Various other religious orders have provided confidential settlement payments to ex-residents.[415]

8.8 The Salvation Army has also provided compensation payment to ex-residents. One payment to a former resident of Nedlands Boys Home in Perth was not revealed but was understood to be 'modest'. Slater and Gordon, which handled the claim, is negotiating claims on behalf of other state wards. Other settlements have included $10 000 paid to a former resident of the Salvation Army's Toowong home in Queensland. In another case the Salvation Army provided compensation and apologies to up to ten ex-residents of its homes in Victoria.[416]

8.9 Some care leavers who have been through the court system expressed frustration and disappointment with the legal system and a sense that justice had been denied.

The following submission relates to the attempts made by myself as Guardian ad Litem for [name]...to initiate legal proceedings leading to a remedy, over a period of more than a decade. These attempts have all ended in failure. (Sub 281)

My case has been through our so called judicial system only to be let down by the legal crap that was so unbelievable that I reverted back into my world of hatred and depression. (Sub 161)

8.10 Evidence to the inquiry highlighted the specific difficulties faced by people who have suffered abuse within institutions in successfully pursuing compensation through the civil court system.[417] The major impediments include the limitation periods, establishing liability; the adversarial nature of the system and the cost of litigation. These issues are discussed below. The Churches have also used their considerable financial resources to thwart cases going to judgement.

Limitation periods

8.11 Statutes of limitations represent the primary hurdle - and it is the one that is insurmountable for many claimants.[418] One care leaver stated that:

To date no-one has gotten over the Statutes of Limitations...In my case I was instructed from not seeking damages for the matters of my false arrest, imprisonment, trespass, and theft of my child because it was conveyed to me that because I took too long to bring an action and that I would be barred by the limitations argument because the State could not defend itself against the multiple heads of damage, and I would be penalised by the court by bringing such an action. In other words they could penalise me for the many crimes committed to me by the state. (Sub 221)

8.12 All Australian States have Limitations of Actions legislation which limit the time within which proceedings can be issued in relation to claims for damages for personal injuries. Limitation legislation is intended to prevent a plaintiff from taking an unreasonable length of time to commence proceedings to enforce a right or rights claimed by the plaintiff. Actions for personal injury in Queensland, Victoria, South Australia, Tasmania, the ACT and the Northern Territory must generally be commenced within three years from the date on which the cause of action arose. In NSW, in general terms if the cause of action for personal injury accrued before 6 December 2002, the limitation period is three years. After this date, two limitation periods apply, a three year post discoverability limitation period, and a 12 year long-stop limitation period. An action cannot be brought after whichever of these two periods expires first. Similar rules of discoverability and long-stop periods apply in Victoria on and after 1 October 2003. In Western Australia the limitation period for personal injury action is six years from the date on which the cause of action accrues.

8.13 One submission noted that:

These statutory time limits place adult survivors of abuse in an invidious position, because most will simply and quite normally be incapable of bringing their action within the time set.[419]

8.14 Provisions relating to minors vary among jurisdictions. As a general rule, a child is presumed to be under a disability. Thus, a child's right to sue endures until the child reaches their majority and then the applicable limitation period starts to run. Once the limitation period has expired it may be possible for a person to ask a court to extend the limitation period. There have been recent changes to the law regarding minors in some jurisdictions. In NSW and Victoria, where a child who is in the custody of a capable parent or guardian sustains personal injuries then they have three years in which to commence proceedings through a parent or guardian without the traditional concession of time not running until the plaintiff attains legal majority. Special rules apply if the child has been abused by close relatives or close associates.

8.15 In 2003, South Australia under the Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Act 2003 removed a three year limitation period for the prosecution of sexual offences committed between 1952 and 1982. In the period from 1952 and 1982, prosecutions for sex offences had to be commenced within three years in South Australia. The Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Act operates in that window period of 30 years to remove the immunity from prosecution.

8.16 In June 2004 nine people were arrested by the South Australian Police paedophile taskforce in relation to child sexual abuse allegations. Some of the alleged actions occurred in the 1950s and 1960s. Pending prosecutions were made possible by the recent changes to the statute of limitations legislation in South Australia.[420]

8.17 The nature of the injuries suffered by potential claimants in cases of institutional abuse means that it is often decades after the actual abuse has occurred before individuals have the psychological fortitude to pursue these claims - the victim/survivor might experience shame and embarrassment; might blame him or herself; may not realise the connection between their injury or illness and the abuse suffered at the hands of the defendant; or may need a considerable amount of time to come to terms with the experience.[421]

8.18 The nature of the acts experienced may also mean that the trauma associated with them may not manifest itself until later in life. This inquiry and the inquiry into child migration highlighted the fact that often decades pass before victims are able, or in some cases 'forced', often through a complete mental breakdown, to deal with crimes perpetrated upon them. It is as if they leave care, 'get on' with their lives but in the end have to face their 'demons'.

It took me 23 years to start dealing with [my abuse]. The past finally reared its ugly head and tormented me to the point that I was a danger not only to myself but to society. (Sub 161)

My life of trauma is getting worse as I grow older. (Sub 20)

I'm spending the second half of my life sorting out the first half. (Sub 196)

8.19 The nature of the acts are also different from typical tort actions. Dr Mathews of the Law School at QUT noted that in relation to acts of child sexual abuse:

The acts, which also constitute criminal acts are particularly abhorrent and cause longstanding damage...The acts involve a clear abuse of power. Physical and psychological coercion is required to perpetrate the abuse...These cases usually involve a series of acts continuing over an extended period, producing immediate trauma that then intensifies.[422]

8.20 Dr Mathews added that:

The nature of the acts rebuts any claim that the time limit is a justifiable guard of repose. At a moral level, a perpetrator of child abuse does not deserve the protection of time to escape civil trial. The survivor has had to bear the consequences of the abuse since the events. The perpetrator has done nothing to deserve the freedom to carry on with his or her life without having to face consequences for their acts. For the same reasons, the public interest argument is also irrelevant. There is no public interest in permitting the evasion by child abusers of civil legal consequences.[423]

8.21 Similar arguments can be made in relation to acts of child physical abuse in that they are criminal acts and often cause longstanding damage. The acts involve a clear abuse of power with physical and psychological coercion used to perpetrate the abuse. Cases of physical abuse usually involve a series of acts continuing over an extended period of time with consequent long term psychological and emotional effects, as in cases of sexual assault. Studies have shown that adults who have experienced childhood physical abuse display symptoms that parallel those who experience child sexual assault.[424]

8.22 Submissions also considered the argument that delay in bringing proceedings may unfairly prejudice a defendant's ability to obtain a fair trial. Dr Mathews argued that the legal system possesses adequate means to deal with this possibility through the usual procedures of the civil pretrial and trial process, costs awards and suppression orders. The plaintiff retains the onus of proving on the balance of probabilities that the events occurred. Moreover, it is the courts' duty to make judgments based on the credibility of witnesses and the import of any other evidence, and courts perform these judgements on a daily basis.[425]

8.23 A solicitor, who is involved in pursuing claims on behalf of institutional abuse victims, suggested that a not-for-profit legal centre should be established to represent cases such as these who, although barred by State statute, should be entitled to bring or threaten action against perpetrators be they an institution or governments. Such a centre could operate along similar lines to existing legal centres - 'run in a business like fashion, seeking to be self supporting but acting without regard to profit from any one case but on the basis that but for the States Limitations Acts the child has a good and provable compensable damages [claim]and case'.[426]

8.24 Submissions argued that in cases of institutional abuse the better analogy is with criminal conduct, not tortious conduct. For example, the acts committed in cases of child sexual assault are criminal offences and in general, limitation statutes do not apply to criminal proceedings.

8.25 Each jurisdiction in Australia now has a provision that allows for a limited extension of time in certain circumstances for civil claims. The circumstances in which such extensions will be granted are, however, extremely restrictive in most jurisdictions. Generally a number of factors must be considered before leave can be given to issue proceedings out of time. These include the reasons for the delay, the prejudice that the defendant has suffered by the delay and the merit of the substantive claim.

8.26 Applications for an extension of time within which to issue proceedings are costly (in the range of $10 000 to $15 000 for each side) and there is no guarantee that leave to issue proceedings will be granted. If the application is unsuccessful, the applicant in addition to his or her own legal costs will be liable for the other side's legal costs.

8.27 A number of overseas jurisdictions have addressed the limitation barrier by implementing legislative measures specifically designed for cases of adults abused as children.

8.28 Some overseas jurisdictions have eliminated limitation periods for all claims of child abuse. Statutes in several Canadian provinces, such as British Columbia and Saskatchewan, have abolished time limits for civil actions based on child abuse, giving adult survivors of abuse unlimited time in which to institute proceedings.

8.29 Other jurisdictions have imposed moratoria for certain types of actions. In California the limitations period for certain child sexual abuse claims was suspended for one year on 1 January 2003. The types of actions include actions against persons or entities who owed a duty of care to the plaintiff, who knew or had notice of any unlawful sexual conduct by an employee, and failed to take reasonable steps and to implement reasonable safeguards to avoid future acts of unlawful sexual conduct. This has allowed civil proceedings against the Catholic Church for sexual abuse allegedly committed by priests to be launched.[427] In July 2004 pre-trial hearings commenced involving more than 150 lawsuits against Catholic dioceses in northern California.[428] Professor Graycar and Ms Wangmann of the Law Faculty of the University of Sydney noted that these types of measures are important 'as they recognise the very real difficulties that people who experienced abuse as a child encounter when trying to fit within a legislative requirement that requires them to acknowledge and speak out about their abuse within a certain time period'.[429]

Liability

8.30 Even if proceedings are brought within time or an extension within which to issue is granted, claims for damages face significant other impediments. In order to be entitled to damages a claimant must show that he or she has suffered injuries as a result of the negligence of another party. To prove negligence, a claimant must establish that they are owed a duty of care and that there was a breach of duty of care which has resulted in injury.

Proving injury

8.31 In cases of sheer neglect, that is, a failure to adequately feed, clothe, nurture or educate it is often difficult to show 'injury' per se which involves proving physical damage or a diagnosable psychiatric illness. Where injury has occurred, defendants often argue that it is not the abuse that has occurred whilst the children were wards which has caused the injury. Defendants often argue that these children were already significantly physically or psychologically damaged and therefore it is difficult to identify the cause of any ongoing symptoms, loss or damage.[430]

Vicarious liability

8.32 Claimants often face difficulties in determining who to sue. Very occasionally the actual perpetrator of violence or abuse is sued, but even if the claim is successful it is unlikely that the individual will have the capacity to pay damages. Many victims of institutional child abuse also see the organisations, or the governments that facilitated their institutionalisation as responsible for their abuse. Proving direct or vicarious liability on the part of organisations, such as churches or the government has proved difficult in Australia. A recent case decided by the High Court in 2003, Lepore, Rich and Samin, left the matter open.[431]

8.33 One submission noted that when cases are brought against organisations, the organisation will often argue that it did not know the conduct was occurring and will seek to blame the individual abuser. Given that many of the claims are brought years after the event, it is often difficult to show that the responsible authority either knew or should have known the abuse was occurring.

8.34 Various government departments and religious institutions will also argue that the conduct must be judged according to the standards of the time. For example, that corporal punishment was more acceptable in the 1940s or the 1950s than now. Often the abuse will relate to illegal conduct, particularly with reference to sexual abuse. In these circumstances, the employing agency will argue that they cannot be held liable for the illegal conduct of their employees or agents.[432]

8.35 Submissions noted problems in suing religious institutions. One submission noted that many churches and religious groupings are not legally incorporated. If this is the case, the church will have no legal personality that is distinct from its members and therefore there will be difficulties for a person who wishes to sue in contract or tort. Some Catholic religious orders have been organised in such a way that they are legally incorporated for the sole purpose of the owning and disposing of property but otherwise the Catholic church and its religious orders argue that they have no more legal standing than, for example, a social group. These arguments have met with some success in the courts and this inability to find an entity that can actually be sued further aggravates the problems faced by those seeking redress.[433] One possible solution to this problem would be to make the tax concessions that Churches/charities can obtain a condition of incorporation.

8.36 The Committee raised this issue with Mercy Community Services. They indicated that its corporate structure, while designed to continue the mission of the Sisters of Mercy, may as a consequence serve to limit the liability of the organisation:

It may be an offshoot of it or a consequence of it that the disadvantages you see for people who are aggrieved could occur...The corporate structure as such is like any other corporate structure. The canon law side of it was so that the assets, the capital goods of the Sisters of Mercy, could go to a group so that they remain church goods and that they are not alienated from the church. Obviously, in civil law it was so that the entity could act within Corporations Law...it is not the purpose but it may be one of consequences of the structure.[434]

8.37 In addition, where wards of the state have been placed in institutions run by religious groups, a process of 'denial' of responsibility occurs with the State attempting to place responsibility with the church and vice versa.