Navigating historic institutional abuse claims in an evolving legal environment
BY CATHERINE POWER AND NATALIE SULLIVAN – MAY 05, 2023 8:40 AM AEST
Snapshot
- The Royal Commission into Institutional Responses to Child Sexual Abuse has brought about significant law reform.
- Managing historic institutional abuse claims can be challenging as it is an area that is constantly evolving.
- To minimise the risk of exposure to a professional negligence claim, lawyers should ensure they are up to date with changes in this area of law and be understanding of the particular vulnerabilities of their clients.
Historic institutional abuse personal injury claims have surged in Australia since the Royal Commission into Institutional Responses to Child Sexual Abuse (‘Royal Commission into CSA’). That surge has brought about significant law reform which lawyers need to stay informed about.
While avenues for obtaining compensation for survivors of child sexual abuse are easier to navigate than in the past, there are still barriers in place which a ect how (and for how much) claims are resolved. A client dissatis ed with the outcome of their claim may look to nd fault in their lawyer, but there are steps that lawyers can take during the claims process which will mitigate the likelihood of any future professional negligence claims.
Context
The law surrounding historic institutional abuse personal injury claims in Australia has undergone major change since the Royal Commission into CSA was established in 2013.
Since the Royal Commission, there has been significant legislative reform in this area and there is no longer, in any state or territory within Australia, a limitation period for child sexual abuse claims. (See Limitation Act 1985 (ACT) s 21C; Limitation Act 1969 (NSW) s 6A; Limitation of Actions Act 1958 (Vic) s 27P; Limitation of Actions Act 1974 (Qld) s 11A; Limitation Act 1974 (Tas) s 5B; Limitation Act 2005 (WA) s 6A; Limitation Act 1981 (NT) s 5A).
Courts now have the power, in any state or territory, to consider setting aside a Deed or Settlement Agreement entered into by a survivor of child sexual abuse (see Civil Law (Wrongs) Act 2002 (ACT) s 114K–114M; Civil Liability Act 2002 (NSW) s 7D-7F; Limitation of Actions Act 1958 (Vic) s 27QB-27QD; Limitation of Actions Act 1974 (Qld) s 48(5A)-(5B); Limitation Act 1974 (Tas) s 5C; Limitation Act 2005 (WA) s 92(1)-92(4); Limitation Act 1981 (NT) s 54(6)).
Furthermore, every jurisdiction in Australia has legislated to require unincorporated non-government organisations with no legal personality to nominate an entity with sufficient assets for an abuse survivor to sue (see Civil Law (Wrongs) Act 2002 (ACT) s 114D; Civil Liability Act 2002 (NSW) s 6K-6L; Wrongs Act 1958 (Vic) s 92; Civil Liability Act 2003 (Qld) s 33H; Civil Liability Act 2002 (Tas) s 49M–49P; Civil Liability Act 2002 (WA) s 15B; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 17Q-17R).
Recent case law
In addition to legislative reform, there has been new case law in this area which provides useful guidance on the circumstances in which:- religious orders will be found vicariously liable for their members:
- In DP (a pseudonym) v Bird [2021] VSC 850 (which was upheld on appeal in Bird v DP [2023]VSCA 66) and O’Connor v Comensoli [2022] VSC 313, the Victorian Supreme Court found that anArchdiocese could be vicariously liable for the criminal conduct of a Priest.
- In Prince Alfred College v ADC [2016] HCA 37, the High Court provided some guidance on whatcould lead to a vicarious liability nding in a non-traditional employer-employee relationship.
- a court will grant a permanent stay of proceedings in a historical abuse claim:
- The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 is currently on appeal to the High Court (Case Number S150/2022). The decision will have a significant impact on the way abuse claims are managed and resolved in the future;
- Fields v Trustees of the Marist Brothers [2022] NSWSC 739;
- Smith v The Council of Trinity Grammar School [2022] NSWCA 93;
- Willmot v State of Queensland [2022] QSC 167; and
- Phillips v Stanzer [2022] VSC 355.
How to minimise exposure to claims of professional negligence
To date, there has been minimal guidance from the courts about what action (or inaction) taken by a solicitor acting for a survivor in a child sexual abuse claim constitutes professional negligence. Existing case law in this area (e.g Pool (a pseudonym) v Trustees of the Marist Brothers Property Group & Anor (No 3) [2021] ACTSC 89), makes it clear that the following steps will be important to avoid potential professional negligence claims:- keeping contemporaneous file notes of all instructions received from a client and in relation to any settlement discussions with a client;
- ensuring undue pressure is not placed on a client to resolve a claim;
- ensuring clients are afforded adequate time to consider offers and provide instructions, noting the extreme vulnerability of survivors of child abuse, and the serious psychological conditions they may suffer from;
- the advice of counsel in relation to the proposed resolution of a claim;
- undertaking factual investigations in relation to the primary allegations of abuse and any other history which could:
- assist in proving the allegations against the alleged offender;
- impact the client’s credibility; and
- impact an expert’s assessment of the degree to which the abuse has caused injury.
Conclusion
Against the backdrop of significant legislative reform and an expanding body of case law, it is imperative that lawyers practising in the area of historical abuse are cognisant of the law regarding limitation periods, setting aside previous settlement agreements, vicarious liability and permanent stay applications.
When considering whether to resolve a claim, regard should be had to the particular vulnerabilities faced by clients who are survivors of abuse. Consideration should also be given to whether a claim is best litigated, advanced through alternative dispute resolution or whether the matter should be dealt with via the National Redress Scheme.
To minimise the risk of exposure to professional negligence claims, lawyers should not only understand and appreciate their client’s unique circumstances, but they should also understand the rapidly evolving legal environment in which they are navigating abuse claims.