This is a discussion about what is happening in the area of personal injury compensation claims related to institutional child abuse (‘claims’). However, for a leader in the Diocese of Maitland-Newcastle to discuss any subject related to abuse is fraught. Therefore, let me start by stating some fundamental truths.
During much of the 20th century, countless children suffered abuse at the hands of adults (overwhelmingly men) who were entrusted with positions of authority over those children. Some of those who were abused suffered enduring, even lifelong psychological injury.
The extent of institutional child abuse came to prominence in NSW with a Royal Commission into NSW Police conducted by Justice James Wood (1995-97). What became known as the ‘Paedophile Inquiry’ showed that child abuse had occurred in virtually every governmental, community and religious institution. This confronting truth was exposed at a national level and to the whole community by the ‘Royal Commission into Institutional Responses to Child Sexual Abuse’ (2013-17).
From the late 1990’s legislative change occurred, society began to understand the extent of the abuse and the degree of harm caused. Many courageous victim/survivors and their advocates fought for a more just and equitable response for past abuse and current harm, from government and institutions. Some institutions actively engaged to facilitate processes to support healing and pay some redress, the Catholic Church was one of the earliest to do so.
I began working for the Diocese in late 2009, by 2010 I started dealing with these claims. In the early years there was a high level of certainty for the Diocese, the vast majority of claims we believed to be genuine, based on the available evidence and the presentation of ‘the plaintiff’ themselves (the victim/survivor who has brought the claim). I have met with hundreds of men and women and I have been privileged to bear witness to their courage and to listen to their truths. There were a few cases where we could not find sufficient evidence to support the victim/survivor’s claim, or the evidence strongly supported the belief that the individuals’ memories were confused or constructed. In those earlier years there was only one claim which I believed to be fraudulent.
Fast forward to today and things have changed. I believe there is widespread fraud attempting to be perpetrated against religious, community and state institutions, under the guise of claiming to be child sex abuse survivors. I note the recent arrests of multiple persons by New South Wales and Queensland Police for alleged fraud worth more than $1 billion.
I will illustrate the worst aspects of the current situation by telling you the story of John, who is a construct drawn from a number of claims in which I have been involved. I have created John to protect the identities of the people involved. However, while John and all the people referred to in telling his story are fictional, the issues discussed are real and they are happening now, in our Diocese and, I believe, many other institutions across our society.
The Diocese provides services to children in education, social services, early education and OOSH [Out of School Hours] care. Children are at the heart of our parishes and faith communities. John is an employee of the Diocese, he works with children in a youth outreach programme. John is married, has a couple of adult children and has recently become a grandad. John has been planning his transition out of work; he feels that his career has been pretty good, he and his wife have built a nice life together and he is looking forward to a modest but comfortable retirement. John has never been the subject of any serious complaints and certainly not subject of any allegations of being abusive towards children.
About a year ago the Diocese received a letter from a legal firm representing Mike, who is serving a custodial sentence in a NSW correctional facility. While in prison Mike was approached by a prison visitor, who asked Mike whether he had ever been abused while he was at school or whilst receiving services from an institution. The man said that if Mike did remember being abused, he could help Mike get a lawyer and get financial compensation for the abuse Mike suffered.
Mike is in his mid-30’s and he has alleged that he was the victim of child abuse when he was in a youth welfare programme. Mike can’t remember the alleged abuser’s name, but he can remember where it happened and roughly when (mid 2000’s). Mike gives a generic description of an adult male who he says was his abuser.
On behalf of the Diocese my team responded, and the claims process began. We learned that Mike has had a long involvement with Police and Corrective Services, over his entire adulthood. Mike has been the subject of a number of psychological and other assessments and he underwent a period of counselling for drug addiction. On reviewing Mike’s extensive medical and criminal records, there was no previous mention of him alleging that he had suffered institutional abuse.
I have met with victim/survivors whose life stories were similar to Mike’s and their claims have been settled. The Diocese understands and accepts that complex childhood trauma may lead to disrupted and marginalised lives. However, it is challenging to accept that an individual who has been assessed on multiple occasions and been in a period of counselling, had never given any indication, hint or suggestion that he had suffered abuse. Being the victim of childhood abuse would be considered as part of his sentencing hearing in court and his placement assessment in Corrective Services, possibly resulting in a reduced custodial sentence, being assigned to a more favourable placement. It was in Mike’s best interests to disclose his abuse. He did not.
The Diocese, along with government departments, community agencies and other religious institutions, are facing a flood of claims, many of which, when examined, raise serious and persistent questions about their credibility. The most blatant aspect of this emerging industry is a practice known as ‘claims farming’. Mike’s case is an example of claims farming, when a ‘claims farmer’ makes unsolicited contact with a person and asks them if they have a personal injury claim to pursue and encourages them to do so through a law firm that usually pays the claims farmer for the business. Claims farmers are known to target prisons, often by using high-pressure and misleading tactics to get inmates to pursue claims. The NSW Department of Communities and Justice has advised that “anecdotal reports that claims can be sold to law practices for anywhere between $800 to $10,000”. Mike’s solicitor paid a claims farmer $3,200 for his claim.
Claims farming has become such a serious issue in NSW that the state government is in the process of developing legislation to outlaw it. Queensland has already made claims farming illegal, Western Australia and South Australia are well on the path to do so as well.
As the claim progressed, Mike’s solicitor gathered more information, until he was able to identify his alleged abuser. Mike alleged that he was abused by John. Diocesan records showed that John was one of the senior youth workers in the outreach programme and that Mike was registered as one of the teenagers supported in the programme between 2004 and 2006. Even though Mike has a solicitor, we advised the Police of Mike’s allegations against John. After some time, we learnt that Mike refused to make a Police complaint against John, there would be no criminal investigation of Mike’s allegations.
Fifteen years ago, my experience was that most plaintiffs would pursue criminal complaints against their alleged abusers, where the alleged abuser was still alive. Plaintiffs actively sought the abuser’s prosecution. Some of those courageous victims/survivors gave evidence in criminal trials and the claims I managed involved plaintiffs who had shown, beyond reasonable doubt, that their alleged abuser was guilty. Or at least, they had pursued criminal justice against their alleged abuser. Not anymore. For more than six years, my experience has been that none of the plaintiffs making claims against the Diocese have made criminal complaints. I acknowledge there are multiple legitimate reasons why a plaintiff may choose to forego an attempt to get justice for the harm inflicted on them. But it appears to me that plaintiffs now choose to pursue compensation but forgo any attempt to obtain justice for their alleged abuse, the ‘default’ position is to not involve the Police.
I find these circumstances difficult to reconcile, given the criminal justice system is now much more sympathetic to victims/survivors than in past years. The rates of successful prosecutions of alleged child abusers have increased markedly since the 1980’s or 1990’s. There are a number of expert Police who specialise in investigating alleged child abuse and are much more aware and skilled in supporting the victim/survivor in giving evidence and working through the investigative phase. There are counselling and ongoing emotional and practical support services available for victim/survivors as well. For example, the Diocese’s Healing and Support (Zimmerman Service) has been recognised for its expertise and commitment to those who access their support by members of NSW Police and the Royal Commission into Institutional Responses to Child Abuse.
The judicial process has become more trauma informed for victims/survivors; there are protections from being subjected to oppressive cross examination by defence barristers, there are support services available in and outside of court, a victim can give evidence remotely rather than being in the same room as the alleged abuser and a victim/survivor can have their identity protected from the public. Also, there has been a fundamental shift in the community’s readiness to accept the truth of child sexual abuse, juries appear to be much more ready to convict alleged abusers. The conviction of Cardinal Pell by jury was a prominent example of this trend and it took the unanimous judgment of the High Court to assert that the accumulative evidence available to the jury in the original trial “ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant's (Cardinal Pell’s) guilt of the offence…. there is a significant possibility that an innocent person has been convicted.”
I acknowledge that for some survivors any judicial process is too traumatic and the thought of giving evidence in court is overwhelming, which is one of the reasons that prompted the establishment of the National Redress Scheme. However, if you are prepared to go to court to get compensation from the institution that you say failed you, given all these changes in approach, attitude and process in the police, courts and community, why would you not seek justice against the man you alleged abused you?
Because John works with children in the Diocese, we were required to report Mike’s allegations to the Office of the Children’s Guardian. John was subject of a ‘reportable conduct’ investigation. The investigation was conducted by the Diocese and oversighted by the Children’s Guardian to ensure that the investigation was rigorous and sound. One of the first things that a reportable conduct investigator tries to do is to talk to the alleged victim. Mike refused to participate in the investigation. A reportable conduct investigation will proceed even when the alleged victim does not cooperate.
It took a number of months to investigate the allegations, which included tracking down people who had worked in the youth outreach programme or had been a youth who had been a registered client of the programme. Notably, the investigator wanted to talk with people who remembered John or Mike and who could recall the procedures and practices followed by staff at the time. John was advised of the allegations and responded, emphatically denying them. The findings of the investigation supported the belief that there was no merit in Mike’s allegations. John was clear to continue his career but the investigation had been challenging for him. John was also confronted by the idea that Mike was pursuing a claim against the Diocese based on what John called “utter lies”.
Where the Diocese believed that a plaintiff’s claim was meritorious, i.e. on balance of probabilities the abuse likely happened, the Diocese has endeavoured to reach an equitable settlement of the plaintiff’s claim, avoiding court or other unnecessary contention. I am the first to admit that we don’t always get it right, but we try to be just and pastoral in our approach. One of the more insidious effects of the claims industry is that the process is becoming increasingly litigious, consequently when a more credible victim/survivor makes a claim, it is more likely that their experience of the Diocese will be that we are more adversarial.
Mike’s lawyer lodged his claim in the NSW Supreme Court. The Diocese was insured, so the insurance company was primarily in charge of what happened with the claim. As it progressed, both the Diocese and our insurance company formed the view that Mike’s claim was not meritorious and we were not prepared to resolve the claim by negotiations; at least not at the exorbitant value that Mike’s solicitor was demanding. After many months the claim was scheduled for trial. However, with only five weeks to go, Mike’s lawyer made John a co-defendant in the claim. This delayed the trial by many months and suddenly John needed to engage his own legal team.
Defending a claim in the Supreme Court is very expensive, it can cost hundreds of thousands of dollars, certainly in the tens of thousands. Solicitors and barristers cost a lot of money, and it takes a lot of time and effort to prepare for a trial. Mike entered the claim on a “no win, no costs” basis, so he has not had to meet any of the costs of bringing his claim and he won’t have to, unless he wins. Mike’s lawyers have engaged a ‘litigation funder’, which is a third party that funds litigation in a claim (up to an agreed amount), shares the risk (costs) if unsuccessful and benefits from a substantial ‘return on investment’ if successful. The Diocese’s insurance is covering our legal costs defending this claim. However, John has to find the money to defend himself.
While the investigation supports the belief that John did not abuse anyone, Mike did not participate in the investigation but is expected to give evidence in the trial. Nobody knows how a trial will end. Theoretically, a judge could find in Mike’s favour and if that occurs, John’s assets are in jeopardy. All of them. John’s house (or at least as much of it that he owns), his savings, any investments he has in his name and, in some situations, John’s superannuation, would be at risk. If the judge rules in favour of John and the Diocese, there will be no payment to Mike or his lawyers, but John and the Diocese’s insurers do not automatically receive any reimbursement for the costs of successfully defending themselves.
Theoretically, the losing party in a civil trial pays the ‘costs’ of the other side. If Mike wins the Diocese’s insurer and John will have to pay Mike’s costs (i.e. his legal fees and other costs related to the litigation). If Mike is not successful, his lawyers would likely know that the Diocese does not try to recover costs from alleged victims/survivors. Also, if John wants to recover his costs, he will likely be unsuccessful, Mike was itinerant before being jailed, he has no recoverable assets to pay a costs order. John cannot recover his costs from Mike’s lawyers.
Historically, one of the checks to people bringing questionable claims to court were the risk of costs against the unsuccessful party. The costs equation now seems one sided. With the growth of litigation funders and ‘no win, no fee’ arrangements for perspective plaintiffs, it appears that the financial risks rest inequitably on the defendants’ side of the equation.
In the course of Mike’s claim, his lawyers asked for and was granted a non-publication order that protects Mike’s identity from the public. John received no similar protection. In civil courts, as in the criminal justice system, plaintiffs who allege that they were victims of abuse may ask for and, in my experience, are universally granted suppression or non-publication orders. Consequently, the plaintiff’s identity cannot be published, the Court issues the plaintiff with a pseudonym, which is used in all court documents, other information which may reveal their identity is restricted from the public and court hearings may be partially or wholly closed to the public. I am advised that the probability of a defendant successfully achieving a non-publication order is significantly lower than that of a plaintiff.
So, if Mike’s claim goes to trial, for John, a ‘good’ outcome will be a legal bill for tens of thousands of dollars and that neither the professional news media nor some citizen journalist notices that he is listed as a co defendant in a sexual abuse claim. How many families can afford an unplanned expenditure of $40 or $50 or $60,000? How would you feel living with the knowledge that you and your family may be publicly identified as an alleged abuser? John has stopped planning for his retirement. John and his wife are not socialising as much as they used to, increasingly withdrawing from their circle of friends and community activities. And all of this is happening in a context where the available evidence supports the belief that John did not abuse Mike.
I believe something has gone wrong in the claims space. As a system we have gone from a time when it was extraordinarily difficult to sue institutions for their culpability in the abuse crisis. That was wrong, it needed to change, and it did. However, human systems tend to overcompensate. I understand that these ‘child sexual abuse claims’ now form the largest single type of civil litigation in NSW. I believe a well-funded industry is developing that pursues too many claims where there are compelling doubts about the voracity of the alleged abuse.
On an systemic level:
One of the most difficult aspects for me personally is that there is an inevitable corrosive effect on an institution’s ability to approach an alleged victim/survivor seeking compensation, in a victim-centred, pastoral approach. Understandably, institutions become increasingly defensive and those of us who do this work approach all claims from a place of scepticism and so the experience becomes an increasingly litigious and adversarial process. The hope for ensuring a victim focused response becomes increasingly difficult to achieve.
On an individual level:
For the last quarter century, the media has reported on the injustices of institutional abuse, rightly so. Locally, the Diocese has been subject of an extraordinary level of critical coverage by the local media, much of which was warranted, albeit painful to constantly confront. However, I believe a presumptive bias developed and is still applied in relation to the Diocese and historic child abuse. The Diocese’s intent is automatically suspect whilst victim/survivors and their advocates’ assertions are reported without any critical consideration. I believe much of the media coverage needs to be more discerning than it has been. A more balanced reporting of the issues, a more nuanced dialectic than is currently delivered by our news media should assist us to be better informed. This will support the community to participate in a debate that needs to occur; is it in society’s best interests to allow this claims industry to continue to develop and become a permanent part of our lives? Is the community comfortable with the prospect of more and more people like John finding themselves caught up in a process where the best they can hope for is a significant legal bill and not becoming the focus of public speculation as to whether they abused someone?
I do not know of any easy solutions for this situation. I believe the move to outlaw ‘claims farming’ is an urgently needed first step, but I do not believe it will be sufficient to address the issues caused by the development of the claims industry. I believe that there needs to be some consideration of the apparent imbalance of financial risk that weighs on the defendants. There needs be more equitable protections for individuals who are named as co-defendants or otherwise accused of abuse in publicly available documents prior to the courts testing the voracity of the allegations. I believe there needs to be serious consideration of what legislative or regulatory changes could be enacted to bring back some greater balance, without risking disempowering legitimate victims/survivors seeking compensation for the harm that was inflicted upon them.
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