Reopening Settled Abuse ClaimsBrian Hatch
I Settled My Abuse Claim – Can I Re-Open It?
The Royal Commission into Institutional Child Abuse brought these matters to the forefront of public knowledge and understanding. For the many people who lived with the consequences of that abuse the fight has often been going on for many years.
Many people who suffered made claims for compensation. Many of these claims were settled before the Royal Commission was set up. For a lot of these people who lived with the effects of abuse, the amount received in compensation did not seem adequate. For many of them the amount simply was not adequate.
A common reason that the amount was inadequate was because the claim for compensation was made too late. The normal rule when someone wants to make a claim, or pursue any other legal right, is that the claim must be brought within a set period of time. The purpose of time limits is so that a potential claim cannot hang over people indefinitely. In most cases, people need to know that after a certain length of time they can put matters in the past from a legal perspective. Time limits can be extended, but that is very difficult.
This rule has benefits in the normal course of life. The Royal Commission recommended that the time limit for abuse claims be abolished. That has now happened throughout Australia.
Why Was My Claim Settled For Less?
Often the reason a claim was settled for less than it may have been worth was because the time limit had expired, and getting a time limit extended is very difficult. For a victim, this meant accepting a small amount of compensation because taking the matter to court may mean no compensation, and a hefty legal bill. The institution wanted to pay something, just in case a court did agree to extend a time limit. Has that changed since the time limit went?
The Royal Commission recommended that there be a way for those settlements to be set aside. So far, only Queensland and Western Australia have passed this into law, with Tasmania to follow suit by the end of 2019.
So far, there has been one case in each of Queensland and WA. The Queensland case was hard fought. The victim lost. He was not allowed to set aside the settlement. The victim was abused in the late 1980s and settled his claim in 2002. The WA case was won by the victim, but was not opposed by the institution involved.
The court took into account that the “settlement was the product of fair, arms-length negotiations between two parties on equal footing, both appropriately represented” and that it was a “fair settlement reflecting the factual and legal strengths and weaknesses of the parties’ respective cases properly assessed at that time by them. The discount of the applicant’s claim was not materially contributed to by any consideration of limitation defences”.
The Queensland decision has now been appealed. This decision shows how difficult it will be to set aside these settlements. Tellingly, the court said the settlement needed to be looked at as at the time it settled, not necessarily taking into account changes in law and society since then. The court decided that the time limit problem was not important in that case because the institution did not make a point of it. The time limit must have worried the victim and his lawyers.
The court also said that because the victim had lawyers he took his compensation in a fair fight. Perhaps the court should look more at the relative strengths of both sides. A victim has one claim, and limited resources. An institution will have experience with multiple claims by victims, and often huge resources.
Perhaps a court will take a different approach if a time limit was a big factor in taking less, as it often was when victims settled.
The Court of Appeal may have a different approach, one more in keeping with the Royal Commission findings. Whatever it decides, expect that whoever loses will want the matter decided by the High Court, leaving victims waiting again.