The Importance of Electing Between the National Redress Scheme and Common Law: Young v Waller Legal & Ors

The case of Young v Waller highlights the importance of carefully considering whether to pursue compensation for institutional child sexual abuse under the National Redress Scheme (NRS) or via common law proceedings through the courts.  

 

In Young v Waller, the plaintiff alleged that he was abused by employees of St Joseph’s College in Newtown during the 1970s. The school was operated by the Trustees for the Christian Brothers. In 2017, the plaintiff settled a claim with Waller Legal, against the Christian Brothers, for $175,000 inclusive of costs. However, he later believed that the compensation he received was inadequate.

 

In 2019, the plaintiff engaged a separate law firm, Knowmore Legal, to assist him in applying for redress under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018. Under the NRS, he was offered counselling and a “direct personal response” but no additional monetary compensation. He accepted the counselling offer in February 2021 but declined the direct personal response.

 

The plaintiff later sought to pursue further damages against the Christian Brothers under the Limitation of Actions Act 1958 (Vic).

 

However, section 27QA(3)(b) of the Act excludes its application to individuals who have accepted an offer of redress under the NRS. The plaintiff subsequently alleged that Knowmore Legal failed to properly advise him of the consequences of participating in the NRS, which he claimed foreclosed his ability to seek further damages through the courts.

 

The Young v Waller case demonstrates the importance of making an informed and deliberate choice between the NRS and common law proceedings. Survivors and their legal representatives must carefully weigh the advantages and disadvantages of each option before proceeding. The NRS offers a streamlined and less adversarial process for survivors to obtain redress.

 

However, participation in the NRS may preclude survivors from pursuing further compensation through the courts. Legal practitioners must ensure that survivors fully understand this trade-off before deciding to participate in the NRS. Survivors should also assess the adequacy of compensation available under the NRS. Further, the NRS imposes a cap on monetary payments of $150,000, which may be significantly lower than the damages that could be awarded in a common law claim. Survivors with strong legal claims and substantial damages may be better served by pursuing common law proceedings.

 

A common law negligence claim may provide survivors with a broader scope of compensation. To succeed in such a claim, it must be demonstrated that the institution knew or ought to have known that the abuse was occurring, or alternatively, that the institution failed to have an appropriate system in place to monitor the reporting of abuse and protect children in their care.

 

Compensation under common law is generally assessed pursuant to the Civil Liability Act 2002 (NSW) and may include non-economic loss, future treatment expenses, and economic loss. While common law claims may take longer to resolve, typically around 24 months, they can result in significantly higher compensation than the NRS.

 

In proceeding with a common law claim, survivors should be prepared to discuss the abuse with various professionals, including medico-legal psychiatrists, and may be required to give evidence in court should the matter run to a hearing. Survivors who find it difficult to discuss the abuse may prefer the NRS, which requires less personal involvement. Ultimately, the decision between the NRS and common law proceedings should be guided by the survivor’s individual circumstances, priorities, and the advice of their legal representatives.

 

The case of Young v Waller serves as a reminder of the importance of electing between the NRS and common law proceedings with great care. Legal practitioners play a vital role in this process, and their advice can make all the difference in ensuring that survivors receive the justice they deserve.  

 

At Foye Legal, we have expertise in assisting and supporting survivors of institutional child sexual abuse to make an informed decision whether to pursue a claim for damages through the NRS or common law proceedings through the courts.