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Published: 01 November 2018
Author: Ian Dallas
Geelong Grammar School (GGS) made headlines this week when a survivor of sexual abuse at the school was awarded a major financial settlement of $1.1 million, despite having previously settled for a much smaller amount.
The award is a significant breakthrough for people wanting to revisit previous compensation payments.
In this blog, I examine the legal basis on which the settlement was made and what it means for those who wish to re-open cases for a new settlement.
At the time the claim was initially settled, GGS apparently made no admission that it was aware that the teacher was a paedophile. It has now come to light that GGS did know he was a paedophile, and sought to cover this fact up. This fact, if known at the time, would most likely have made a significant difference to the settlement.
It is certainly unusual for claims which have been settled in the past, to be re-opened at a later time. There have been calls for some time now for sexual abuse settlements made in the past to be re-opened, on the basis that the settlement amount paid back then is significantly less than what such a claim would attract under the current law.
Legal principles require that there be certainty and finality in the resolution of claims. For these reasons, when any kind of claim resolves, a final document known as a Deed of Release will need to be signed. This document makes it clear that the payment to be made is made in final resolution o the claim, and that the claim cannot be re-opened at a later date.
Claims for sexual abuse have special characteristics which make this traditional view of the law problematic. These claims tend to about acts in the past, often when survivors were children. As the Royal Commission has found, survivors find it difficult to speak of their abuse until many years later. As a result, when survivors approached lawyers in the past, they were advised that their cases had a significant difficulty to overcome, the limitation of actions defence. Defendants have been able to argue that because claims are old, they will likely fail due to lack of evidence, and the limitation defence. As a result, past settlements were low.
The limitations law has now been altered significantly in all Australian states, allowing sexual abuse claims to be made and strengthening the likelihood of success.
The other major issue encountered by survivors has been the tendency of institutions of all sorts, but churches in particular, to mount what became known as “the Ellis defence” – that there was no legal body able to be sued, due to the special nature of the relationship between institution and the perpetrator, and the fact that the institution itself did not exist in a legal sense.
The Ellis Defence has now been removed as well, and churches and other institutions are required to nominate appropriate bodies which hold assets which may be sued.
The landscape has therefore altered in favour of survivor claimants, leaving those who settled under the old law with small settlements that would be considered meagre and unfair by today’s standards. Does the Geelong Grammar School (GGS) case allow those old settlements to be re-visited?
It is important first to note that the GGS settlement is not a legal precedent. Although it has been widely reported, the settlement did not involve a decision by a court which sets out a legal principle. Instead, the settlement demonstrates the matters which might be significant in putting an argument that a previous settlement was unfair or unjust.
In this case it is reported that the school was aware of prior offending by the teacher responsible for the sexual abuse, and did not disclose this information to the claimant. In fact, it is suggested that the school actively tried to conceal this information and to settle the case as quickly as possible. The claimant and their lawyers planned to argue that this alleged behaviour by the school invalidated the settlement, and therefore the claimant should be allowed to make a fresh claim.
We know that GGS has entered into a further, very significant settlement reported to be $1.1 million, which suggests that GGS and its lawyers considered there was force to the claimant’s argument. What does the law currently say about this situation?
A Deed of Release is in the nature of a contract, and contracts are not easily overturned. The argument made in the GGS case is to the effect that the school acted in bad faith, concealed important evidence and took advantage of the fact that the claimant had no legal representation.
This argument may have validity in certain circumstances, but the law is certainly not clear on when or how past settlements will be overturned.
The best way to achieve certainty as to how past settlements might be overturned would be for Parliament to pass a specific law. Both major parties in Victoria have indicated that they would look at introducing such a law. This law is likely to be modelled on Queensland legislation, which provides that a court may decide that a prior settlement was not “just and reasonable”, and set the earlier settlement aside, opening the door for a further claim to be made.
If the Queensland law or a similar law were enacted in Victoria, it would mean that settlements obtained in similar circumstances to the GGS settlement would almost certainly be overturned. However, it would not be possible to re-visit every old settlement, simply because it was inadequate. Valid reasons will need to be provided to a court to establish that the settlement was not “fair and reasonable”.
The law relating to sexual abuse claims is changing significantly, and it now seems that in Victoria more changes are on the way. These changes will be welcomed, as our society and the law attempt to provide a fairer mechanism for survivors of historical abuse to be justly compensated.
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