Personal Injury

To understand historical institutional abuse claims in Australia, it helps to distinguish between criminal justice and civil justice, and how these differences shape the legal process for Survivors.

The Goals of Civil vs Criminal Justice

Civil law focuses on resolving disputes between individuals or entities. Its aim is to place the aggrieved party back in the position they would have been in had the harm not occurred—typically through compensation.

Criminal law protects the public interest by prosecuting conduct that constitutes a crime against society, with possible penalties and imprisonment.

Proceedings

In a civil case, the parties are the plaintiff and the defendant. The plaintiff alleges that the defendant caused harm, loss, or violated their rights; the defendant responds to those allegations.

In a criminal matter, the parties are the prosecution (representing the State) and the accused. The prosecution presents the case to prove the accused’s guilt; the accused may defend the allegations.

Burden and Standard of Proof

In civil proceedings, the plaintiff must prove their case on the balance of probabilities, meaning it is more likely than not that their version is true (Evidence Act 1995 (NSW) s 140).

In criminal proceedings, a conviction requires the prosecution to prove the case beyond a reasonable doubt—a high threshold that preserves the presumption of innocence (Judicial Commission of NSW; see also the Rule of Law Education Centre for plain‑English guidance).

Compensation vs Justice

In civil matters, courts may award compensation to acknowledge harm suffered due to a defendant’s conduct, with the aim of restoring the plaintiff so far as money can do so.

For many Survivors of historical abuse, however, justice also involves recognition, accountability, and closure—particularly where the abuse has caused enduring psychological and emotional trauma. Where a criminal case is not possible or does not proceed to trial, the civil system can still provide accountability and vindicate a Survivor’s rights.

Time Limits and Pathways

In New South Wales, there is no limitation period for civil actions relating to child abuse, meaning claims can be brought at any time (Limitation Act 1969 (NSW) s 6A).

Separately, Survivors of institutional child sexual abuse may consider the National Redress Scheme, which offers redress payments, access to counselling and psychological care, and direct personal responses from participating institutions (Services Australia overview).