Published: 06 March 2020
Author: Alyssa Lweis
Defence Force Abuse - what are my legal options?
It can be daunting for survivors who have suffered abuse while working within the Australian Defence Force (‘Defence Force’) to know how to access compensation. However, it is important if you are a survivor of Defence Force abuse, that you do understand the options available.
This blog provides a brief outline of some of the legal options available to survivors of Defence Force abuse.
There are essentially four options available to those who have suffered mistreatment whilst working within the Defence Force. They are as follows:
- Reparation Payment
- Common Law Claim in Negligence
- National Redress Scheme Application
A reparation payment can be made to a person by the Defence Force on behalf of the Australian Government for alleged abuse that occurred on or before 30 June 2014 and only if the application is made prior to 30 June 2021. The payment is in acknowledgement that the abuse should not have occurred and that the Defence Force created circumstances which allowed the abuse to occur.
The reparation payment acknowledges the lasting and serious impact of the abuse and mismanagement by the Defence Force. Further, it is also made in recognition that the Defence Force did not respond appropriately.
A reparation payment can be made up as follows:
- A payment for up to $45,000 to acknowledge the most serious forms of abuse; or
- A payment of up to $20,000 to acknowledge other abuse involving unlawful interference accompanied by some element of indecency.
An additional $5,000 can be obtained if the Ombudsman is satisfied that the Defence Force did not respond appropriately to the incident/s of abuse.
The reparation payment does not affect an individual’s legal rights, entitlements or benefits. The payment is not made in admission to legal liability for any injury, disease or impairment. This means survivors of defence force abuse can still pursue a redress claim or a common law claim in negligence (see below). Even though the reparation payment does not affect legal rights and entitlements, a court can still take the payment into account if future claims for compensation are made when deciding the amount to award.
Common Law claim in negligence
In order to be successful in a Common Law claim in negligence, you need to establish that the Defence Force owed you a duty of care and was negligent in the care that they provided you, and, as a result of that negligence, you have suffered an injury. You also need to establish that the Defence Force either knew or ought to have known that you were at risk of abuse and failed to take appropriate steps to ensure your safety, therefore, failing in their duty of care to you.
If you are successful in establishing negligence, you may be entitled to seek Pain and Suffering damages for the detrimental effect your injury has had on your life. If your injury has impacted on your education and employment, you may also be entitled to sue for Loss of Earning damages, which is the loss you have suffered to your employability and career path as a result of the abuse.
A common law claim is usually pursued in court, but there are also options to try to negotiate your claim out of court without issuing legal proceedings in some cases.
National Redress Scheme application
The third option available is to make an application through the National Redress Scheme (‘the redress scheme’). The redress scheme was established on the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse and commenced operation on 1 July 2018. The redress scheme is set to run for 10 years.
The redress scheme has a maximum cap of $150,000 in compensation and relates to sexual abuse (and any related physical abuse) only. The redress scheme is an opt in scheme, which means relevant institutions must voluntarily agree to participate. The Australian Defence Force has opted into the scheme.
The redress scheme has a "matrix" which provides that different monetary payments are awarded for different types of sexual abuse. The types of sexual abuse are categorised as follows:
- Penetrative abuse
- Contact abuse
- Exposure abuse
Depending on what has occurred, the amounts an individual can be awarded through the scheme vary. The assessments are based on the type of abuse that occurred (including associated abuse which is non-sexual in nature) and the impact that abuse has had (including any particular vulnerability).
Individuals are also entitled to payment under redress to assist with counselling expenses.
If you accept an offer under the national redress scheme, you cannot pursue any other claims, including a common law claim.
Further, if you have already received a reparation payment and subsequently make a redress application, your reparation payment will be considered when your redress application is being assessed.
Along with the above legal options, individuals may have Comcare rights available to them. If you have sustained a work related injury or illness as an employee in a Commonwealth Government position, you may have potential legal rights under the Comcare scheme.
A Comcare claim is “no fault”. This means you can make a claim without having to prove fault regarding your injury or illness.
In our experience, survivors often achieve the best results when pursuing Common Law claims. However, once you have shared your story, we will advise you about all options available and consider which option is the best for you based on your individual circumstances.
We recommend that you contact our Abuse Law team to discuss your own circumstances and to seek our specialised advice.