Common law compensation claims

Common law proceedings are claims made by individuals (either alone, or where appropriate as part of a class action) in which they allege individuals and institutions owed a duty of care to protect from harm and failed to discharge that duty.

To succeed in civil proceedings, you must show that the individual or institution knew or ought to have known about the abuse or the potential for abuse and failed to take action to safeguard those in their care from harm. If you are successful, you will be awarded lump sum compensation for pain and suffering, past and future out-of-pocket expenses including counselling and medical expenses, loss of earnings and any care and assistance required as a result of physical or sexual abuse.

In light of the damning evidence before the Royal Commission many institutions are more likely to negotiate a settlement either in the context of proceedings being filed in Court or as a result of claims made directly against the institution.

For many years a problem in bringing claims for childhood abuse was that, subject to some exceptions, claims had to be commenced within 6 years of the damage occurring (known as the statute of limitations).

In March 2016 the NSW Parliament, following the recommendations of the Royal Commission, passed the Limitation Amendment (Child Abuse) Act 2016 which abolished limitation periods for claims relating to child abuse (defined as sexual abuse, serious physical abuse or other abuse connected with sexual abuse or serious physical abuse to a person under the age of 18 years). Other States have passed similar legislation and the Federal Government has announced that it will not rely on a limitation defence in proceedings brought against it. The law applies retrospectively which means it applies to all claims other than those claims that been settled or resolved. Further, if you previously made a claim which was dismissed or stayed because you were out of time your claim can be recommenced as long as there was no settlement.

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