When can I seek compensation for the injuries I have suffered?
If you have been injured due to being physically, sexually or psychologically abused by another person, you may be entitled to compensation for your injuries.
To successfully bring a claim against the person alleged to have caused your injury (“the prospective defendant”), you must prove that the prospective defendant abused you and that the abuse has caused an ongoing injury or impairment.
Although criminal proceedings can be brought by police against the offender personally, a claim for compensation may be brought against a company or organisation that knew or ought to have known that the abuser employed or supervised by that company or organisation posed a risk to people that interacted with them. Common examples given by survivors of abuse are of being abused by members of religious orders or schools such as priests and teachers.
Where a person is a victim of an individual perpetrator (someone who was not, for example, working or volunteering for a company or organisation at the time of the abuse) can also be the subject of a claim for compensation.
An emerging area of claims relate to victims of what is commonly referred to as ‘forced adoptions’. The practice, particularly prevalent between the 1950s and 1980s, resulted in unwed pregnant women and unwed new mothers being abused and put under duress to put their newborn babies up for adoption.
What compensation am I entitled to claim?
The law aims to return a person to the position they were in had the injury not occurred.
Although a Court cannot reverse the permanent impact of abuse, it can award compensation to financially compensate you for those impacts.
The types of compensation an injured person is entitled to claim due to the abuse they suffered include:
- Pain and suffering.
- Pain and suffering.
- Past and future medical expenses and expenses incurred due to seeking treating (such as travel expenses).
- Past and future lost care and assistance (such as requiring a family member or a professional to provide home care services).
- Exemplary damages (damages aimed at punishing the defendant for conduct that had significant disregard for the safety of others).
Why do I need a lawyer in my abuse claim?
Obtaining liability evidence about the prospective defendant’s breach of duty of care and medical evidence linking the breach to the injuries sustained and the level of permanent impairment suffered can be complex. Most prospective defendants or their insurance companies will deny a claim or offer a significantly reduced amount of compensation without this evidence.
The amount of compensation you receive is dependent on the strengths and weaknesses of your evidence. How well your case has been prepared and presented to the defendant’s lawyers or the Court is of paramount importance.
For example, if you have strong evidence in support of your claim and your claim has been thoroughly prepared, the defendant is likely to pay you a greater amount of compensation to settle your claim out of court. A well-prepared claim will increase the risk of the insurer or the defendant losing your case and having to pay more in compensation and a larger contribution to your legal costs.
On the other hand, a poorly prepared claim will result in the defendant being unlikely to pay you any compensation or offer to pay very little compensation as their risk of losing your case at Court is much lower.
Therefore, thorough and careful preparation of every aspect of your claim is of paramount importance.
Our commitment to careful and thorough preparation of every aspect of a claim is second to none. We seek out the best evidence to support your claim and to understand how the injury suffered by you impacts every aspect of your life. We know how to get even the most complex and difficult compensation claims through to completion at less cost than our competitors and deliver results that others simply cannot.
What is the process for making an abuse claim?
Early preparation is the key to making a successful abuse claim.
A claim commences by us taking detailed instructions about the circumstances of the abuse and what permanent impact it has had and continues to have on you.
To start the claim, we will put the prospective defendant on notice of the impending claim and commence gathering evidence in support of the claim. In abuse cases, the evidence gathered can include:
- Medical evidence when the injuries sustained because of the abuse were the subject of medical treatment shortly after the abuse occurred.
- Medical evidence detailing the ongoing effects of the abuse.
- Police records where the abuse was reported and the subject of police investigation and prosecution.
- Searches for similar cases being brought against the same perpetrator.
- Finding witnesses who had similar experiences with the same perpetrator.
- In the case of abuse by an individual perpetrator, conducting asset searches to determine the ability of the offender to pay compensation.
- In some cases, lodge a Victims of Crime Claim for compensation and financial assistance with lost wages, medical expenses and similar financial losses due to the abuse.
- In some cases, lodge a Victims of Crime Claim for compensation and financial assistance with lost wages, medical expenses and similar financial losses due to the abuse.
- In ‘forced adoption’ cases, obtain adoption records and records of any unwed mothers home the survivor resided at during their pregnancy and the hospital where prenatal treatment and the birth took place.
Once the liability and medical evidence is gathered, the prospective defendant can be invited to an informal settlement conference. If the conference isn’t agreed to, the conference does not result in an acceptable offer of settlement, or the claimant wishes to start Court proceedings immediately, the Court proceedings are then filed and served on the defendant.
What happens when court proceedings are commenced?
Just because your matter is commenced in court does not mean that it will not settle out of court.
At the start of a Court proceeding, the Court will provide the parties a timetable in which to complete certain steps in preparation for a hearing of the case. These steps include requirements for both sides to exchange their relevant documents, to ask questions of each other that are required to be answered as if they are being answered in Court, exchange their medical and negligence evidence, and attend a mediation with an independent mediator. All these steps must occur before the hearing of the case and are required in order that both sides know what evidence and arguments are going be brought to the hearing. The effect of these steps is to encourage the parties to settle the case by agreement if possible. Most cases will settle during this process.
It is at the informal settlement conference or mediation stage where most cases settle. The cases that do not settle will proceed to a final hearing. Only a small portion matters proceed to a final hearing and get decided by a judge.
If we can demonstrate to the insurer or the defendant to your claim that you have a good prospect of winning your case, the insurer or the defendant is more likely to offer you an amount to settle your claim out of court. Therefore, thorough and careful preparation of your claim is fundamental to achieving an out of court settlement of your claim.
What are the time limits for making an abuse claim?
The circumstances within which an abuse can occur can leave a survivor powerless or afraid to report what happened. For this reason, many survivors have lived for years and even decades keeping the abuse they suffered secret. Because of this, the time limit for bringing sexual abuse claims has been removed in most States.
Even if many years have passed since you were abused, you can still make a claim.
In relation to ‘forced adoption’ claims, time limits continue to apply. However, there are active calls for these time limits to be removed as they have been with cases of sexual abuse.
Do I have to pay tax on the amount of compensation I receive because of an injury?
Any amount you receive in a lump sum as compensation for your injuries because of abuse at the hands of another person or organisation are not considered taxable income nor a capital gain. Therefore, compensation received is tax free.
What if I have already received compensation?
In some circumstances, a previous payment of compensation for abuse can be overturned and more compensation obtained. This is particularly in relation to survivors who have received compensation from an institution such as the Catholic Church and the settlement was entered into without legal advice.
Therefore, even if you have previously received compensation or you are considering an offer of settlement without having received legal advice, you should seek advice from a specialist personal injury lawyer.
What if I have started making a claim under the National Redress Scheme?
A National Redress Scheme for people who suffered institutional sexual abuse as a child was created following a Commonwealth Royal Commission. The Scheme is open for applications for compensation to be paid to survivors until 2027, but limits compensation paid to an applicant to $150,000 depending on the classification of the type of abuse perpetrated and the consequences suffered by the survivor.
Even if you have commenced an application for compensation with the National Redress Scheme, it is important to obtain expert advice on whether bringing a civil claim for compensation will result in you receiving a greater amount of compensation which better compensates your for your injuries than what is obtainable under the Redress Scheme.
Is there going to be a redress scheme for ‘forced adoption’ practices?
In early 2022, the Victorian State Government supported calls for the creation of a redress scheme to compensation victims of ‘forced adoption’ practices. There is no date set for the full redress scheme to be operational.
There are similar calls for redress schemes to be created in each State.
What will it cost me, and will the defendant pay my costs?
If we take on your claim, we guarantee that you will pay nothing upfront. We will only send you a bill and charge you professional fees and disbursements if your claim has been successfully completed and only at the conclusion of your claim.
We will recover most of your legal costs in addition to your compensation from the defendant to your claim, so that you pay less. We will also cap your professional fees (being the professional costs left over after we have recovered the maximum amount of professional costs from the defendant, normally called ‘solicitor-client’ costs) with our industry leading fee cap so that you pay less. Our professional fees will be lower than of our major competitors, as we do not rely on large teams of administrative staff so that large amounts of unnecessary time are not spent on your file.
Legal costs are fees and charges for preparing and running your claim. These costs consist of:
- professional fees which are charges for the work we do in the preparation of your claim.
- GST which is charged on our professional fees and barrister’s fees.
- disbursements which are money we pay others on your behalf to prepare your claim. These include things like the cost of your treating clinical notes, medical reports, experts’ reports, court filing fees and process service fees etc.
- barrister’s fees are fees charged by a barrister if one is needed in your claim.
This contribution that the defendant or the insurer makes towards your legal costs is known as “party-party” costs. These costs are payable by the defendant or insurer are calculated in accordance with a scale set by the Courts and are likely to be less than your total legal costs. The difference between the total legal costs and the party-party costs is the amount that is payable by a client.
With our industry leading cap on the recovery of legal fees from clients, we guarantee that the difference between your total professional fees and those that are recoverable from the defendant will not exceed a certain percentage of your compensation amount. If your professional fees are less that the percentage cap you will be charged the lesser amount.
Contact us today, and start with a free consultation by “Make a Booking” to receive our preliminary expert advice.
