Published: 25 October 2019
Author: Amy Olver and RCT Abuse Law paralegal team
The changing landscape for compensation for childhood physical abuse
A brief history
Recent decades have shone a spotlight on child abuse in a variety of settings, whether it be in a school, children’s home or foster care. Whereas once disclosures of abuse were rare, and if made, were often responded to with contempt and/or punishments by adults, the wealth of evidence brought forward by survivors by way of disclosures to the Royal Commission into Institutional Responses to Child Sexual Abuse and/or claims for compensation, has emphasised the importance of trusting and advocating for any young child who makes disclosures of physical or sexual abuse.
While the Royal Commission focused only on sexual abuse, the evidence was overwhelming that abuse suffered by survivors was often both sexual and physical and the impact from either type of abuse is significant.
In hand with this, the landscape for obtaining compensation for such abuse has shifted dramatically. In the past there was a lack of understanding from respondents to claims of the significant psychological impact physical abuse can have on a child. Therefore, historically claims regarding allegations of physical abuse were overlooked by the institutions and appropriate compensation not offered.
In the past, it was extremely uncommon for a claim which alleged physical abuse but not sexual abuse to receive offers of significant compensation or in many cases offers at all. Instead, there was a narrow focus from respondents towards the severity of sexual abuse.
Unfortunately, at times, corporal punishment such as the use of a cane or strap, was legal. Regrettably, the legislation at the time allowed physical forms of discipline and therefore some of the violence children experienced was deemed retrospectively to be acceptable when having regard to the standards of the day, which made the respondents free of liability. In many cases, it was difficult for survivors to establish that the treatment they received was so severe as to exceed the standards of the day.
However, the recent change in the climate of abuse claims and changes to the law, including the removal of the statute of limitations, has allowed much needed change in this area.
The National Redress Scheme leaves physical abuse victims behind
The National Redress Scheme was established in July 2018 to provide a mechanism for survivors of abuse to seek compensation along with access to counselling and a direct personal response from the institution involved.
The Scheme makes no provision for legal representation but survivors can access Knowmore Legal Service, a free legal service, to get assistance in understanding their rights under the scheme and submitting applications if desired.
The National Redress Scheme was advocated for by survivors and their supporters, including RCT Law for a long time but has fallen short of expectations in many respects (see our blogs Commonwealth-led Redress Scheme gives traumatised sexual abuse victims the run around and Not having a voice is a key problem with National Redress).
A significant shortcoming of the Scheme is that it is only open to survivors of sexual abuse, meaning that survivors who suffered severe and prolonged physical abuse, but did not experience any form of sexual abuse, are unable to be compensated through this measure. The scheme only recognises physical abuse when it is related to the sexual abuses of a person. In our view, this fails to recognise the lifelong impact physical abuse has on a survivor’s life.
Prior to the commencement of the scheme, RCT Law publicly advocated for survivors of physical abuse by strongly disagreeing with limiting the scope of the Redress Scheme to exclude victims of physical abuse. RCT continues to advocate and act on behalf of survivors of abuse including those who experienced physical abuse.
Justice for victims of physical abuse
As more survivor’s dare to share their story and seek compensation it is undeniable that often the “corporal punishment” went beyond a form of discipline instead becoming extremely excessive and violent and, far beyond the boundaries of acceptable punishment even when judged by the standards of the day.
While the Redress Scheme has not catered to survivors of physical abuse alone, RCT Law has still brought civil claims for hundreds of victims in accordance with the principles of negligence. We have assisted survivors to successfully argue that the punishments they received were too repetitive, sustained or unwarranted to be considered lawful. This has led to a clearer distinction between what is considered corporal punishment within the standards of the day, and what was physical abuse.
The changes in the climate and law has allowed the RCT Abuse Law practice to successfully pursue claims where previously the legal barriers and attitudes of respondents meant there was little chance of success. Our specialised team can answer any questions about your experiences and strongly encourages survivors of physical abuse, who felt helpless in making a claim in the past, to seek legal advice.