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My child has a disability and was abused by their carer. Can I sue?

A harrowing “Four Corners” report recently detailed abuse that occurred in some taxpayer-funded disabled care homes. In this blog, TGB partner Mal Byrne looks at potential compensation for victims of abuse.

Sexual and physical assault is a crime.  It is a heinous crime when the victim is a child, even more so when the victim is a child with a physical or intellectual disability.

All children are vulnerable but no more so than children with any form of disability.  Perpetrators will deliberately target children with a disability because they know that the victim will be less likely to (and in some cases may have no means of) reporting the abuse and may not have the capacity to give any form of evidence in Court against the perpetrator.  As a result, police prosecution and the Director of Prosecutions are less likely to be convinced that they have a reasonable chance of obtaining a conviction against an offender where the victim has a disability and there is no corroborative evidence from third parties.  However, it is important to remember the burden of proof in a criminal case is “beyond reasonable doubt.”  That is a high standard and is a challenge for police where the case is a “one-on-one case” (victim’s word versus the offender) to sustain a conviction.  Even in cases of domestic violence, charges often do not proceed where it is the victim’s word versus the offender and the victim is able-bodied.

The burden of proof is not as high in a civil claim.  In order to convince the Court that the abuse happened, the victim and prosecution need to establish that the abuse probably happened rather than there is no doubt it happened.  So, even if police and/or the Director of Public Prosecutions make the decision not to proceed with a criminal case against the perpetrator, that does not mean the pursuit of a civil case is hopeless.

So what are the options for victims with disability, and their guardians, in these circumstances?  Under the Victims of Crime Act 2001 (SA), a victim must establish the offence occurred beyond reasonable doubt in order for the victim to obtain compensation, noting the maximum amount of compensation payable at the moment is $50,000 under that legislation.  If a conviction was not sustained, a victim and/or his guardian can approach the attorney general for an ex gratia payment.  Once again, the maximum amount for an ex gratia payment under the legislation is $50,000.  Where a victim applies for an ex gratia payment, the attorney general will look at the criminal case and if satisfied the abuse occurred, that the victim did their best to cooperate with police and prosecution, and that the victim has sustained a significant injury as a result of the offence, the Attorney General will, in most cases, offer that victim an ex gratia payment.

A second option is for the victim to sue the perpetrator directly.  However, unless the perpetrator has insurance or assets to pay compensation that is a waste of time.

Where the perpetrator is a carer or social worker employed by an institution such as the State of South Australia or a private body, the employer of the carer perpetrator can be held vicariously liable for the perpetrator’s conduct and, in those circumstances, the victim can get compensation from the employer.  The general test of vicarious liability is whether the employer knew or ought to have known the carer was a risk to children and did not take the necessary action to eliminate the risk having gained that knowledge.

An example of where an employer could be held is if the employer failed to do a background check on the carer before employing them.  Had those checks been done, a history of abusing children or at least inappropriate conduct making that person a risk to children would have been sufficient for the employer not to employ that person.

Another example of where an employer would be held liable is where there were complaints made about the carer to the institution and the institution did not take appropriate action to investigate the complaint and act upon any findings.

A third example would be an employer that did not have proper checks and balances in place to supervise carers.  This would be particularly so where carers are looking after vulnerable children with disabilities.  The standard of supervision that will be required of an institution dealing exclusively with disabled children would be higher than an institution that is caring for children without those vulnerabilities.

For a child with Down’s Syndrome or perhaps cerebral palsy, independence is an important key to their long-term survival and wellbeing.  As parents of intellectually disabled children grow older, their capacity to care for that child diminishes, sometimes to the point where they are forced to seek assistance and for the child to reside in a care facility or independent living facility.  Having to effectively hand an adult child with whom they have lived for decades over to a facility is a wrenching experience for a parent.  To be forced to do this and then find the facility has abused the child only exacerbates these feelings of guilt and remorse.

Another difficulty for victims with disability is to assess the damage caused by the abuse.  Once again, where a victim has trouble articulating their feelings verbally, it makes it more difficult for experts to assess what psychiatric harm has been caused by the abuse.  However, while those difficulties exist, trained experts may be able to still assess the impact on victims through observing their behaviour and assessing the responses that the victims can give them on questioning. Most compensation payments are modest. Victims who obtain large compensation payments for abuse generally are those whose ability to earn has been hampered by the abuse.  However, another potential claim for victims is care costs.  Victims of disabilities would already have pre-existing care costs prior to the abuse.  If those care costs increase because extra care or medical treatment is required due to the psychiatric impact of the abuse this can substantially increase the size of the victim’s claim.

Children and adults with intellectual physical disabilities are used to obstacles on a daily basis.  Hence, while obtaining compensation for sexual or physical abuse also has some built-in obstacles, those obstacles, like those in life, are not insurmountable, depending on the circumstances of the victim, the perpetrator and the institution that employed the perpetrator. It is important to seek legal advice.

Tindall Gask Bentley partner Mal Byrne specialises in sexual abuse compensation claims. For a discreet discussion about your matter, call Mal on (08) 8250 6668, send him an email or register online and he will call you soon. 

You can view the ABC’s “Four Corners” report here.

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