Blacker, Wendy; Connor, Laoise O --- "ADR in historical sexual abuse cases: A Defendant's Approach" [2017] PrecedentAULA 50; (2017) 141 Precedent 45

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A DEFENDANT’S APPROACH

By Wendy Blacker and Laoise O Connor

Since the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) , anecdotal evidence suggests that claims for compensation for injuries sustained as a result of historical sexual assault have become more prevalent. Many survivors have lived with the pain and trauma caused by the abuse for many decades. For some, it is only now that they have garnered the courage to speak about past events. The rise in claims has also coincided with an apparent heightened awareness of the long-term and, in many cases, far-reaching impact of such abuse on the mental health of victims and their familio-societal participation and engagement.

From a legal perspective, however, these claims raise many complex legal and evidentiary issues in both criminal and tort law. Responding to claims for compensation in this area has required a less traditional and non-adversarial approach. The litigation process poses a very real risk of re-traumatising survivors of abuse. As a result, the approach taken is that of transparency and collaboration, seeking to resolve matters as expeditiously as possible and without the need to litigate in court.

In order to ensure that a consistent approach is taken, many institutions have now developed principles upon which historical claims for sexual assault are to be managed. The aim of these principles is to minimise potential further trauma to survivors. Institutions for whom we as lawyers act acknowledge that survivors of abuse are in a vulnerable position and their claims must be dealt with compassionately and empathetically. This is particularly so given that prolonging any of these matters can be traumatic in and of itself. As such, endeavouring to facilitate early settlement negotiations is greatly encouraged.

THE PROCESS

Early acknowledgement of claims and the provision of information about initial steps such as estimated timeframes for investigations and a tailored timetable towards resolution are paramount to ensuring that the claimant and their legal representatives are informed and aware of the processes necessary to achieve finalisation. In our experience, information-sharing and facilitating access to records relating to the claimant and the alleged abusers (subject to others’ privacy and legal professional privilege) are also essential and should be provided as soon as practicable. Providing records at an early stage in the claim allows both parties time to consider the records, helps to establish a relationship of trust in difficult circumstances, and creates an environment of confidence for the claimant and their legal representatives that the matter will be addressed without the need for adversarial positioning.

In addition to the traditional monetary compensation, claimants are also encouraged to disclose whether they would like any alternative forms of acknowledgement or redress. Institutions now understand that claimants may have other means of redress in mind, such as requests for site visits or apologies. Any such requests should be dealt with as early as possible, as for some they may form a vital step towards healing, reconciliation and recovery. Similarly, information should also be provided about services and supports that are available to claimants such as counselling, at the earliest opportunity.

In fostering a non-adversarial approach, necessary investigations and information-gathering are also undertaken in a non-traditional manner. Generally, we only request particulars of matters relating to quantum and avoid disputing facts as to liability as far as practicable. A position of belief is adopted in the first instance, corroborated by evidence that may have been given in the Royal Commission or evidence in a claimant’s records. Where expert medical evidence is required, we endeavour to work with the claimant and their representatives to facilitate agreement on the use of a single expert where possible. Maintaining regular contact with the claimant or their legal representatives throughout the claim is extremely important, and helps to ensure that the focus remains on the well-being of the claimant.

RESOLUTION

Alternative dispute resolution and, in particular, mediation is by far the most frequently used method for resolving of historical sexual abuse claims. It provides claimants with a safe and trusted environment in which to finalise their claim, where they have an opportunity to be heard and to be acknowledged; factors that are increasingly being seen by those involved in these types of matters as critical to the claimant’s recovery process. Mediation also provides an opportunity for a representative of the defendant institution to speak directly with the claimant, to acknowledge that they have listened to any statement the claimant has made and read the material relevant to the claim, which we have found sometimes comes as a surprise to claimants. More importantly, mediation provides the institution with an opportunity to deliver a sincere written and verbal apology in private. In our experience, the apology is an invaluable part in the resolution of a claim as well as a crucial component in the claimant’s healing process. To avoid compromising the integrity of the apology, in our experience to date it is preferable to separate the apology phase from the financial negotiation phase, and commence the latter after the apology has been delivered. It also appears preferable for the apology to be given by a person who is not involved in the financial negotiations. Claimants may have a preference as to the contents of the apology and whether it is delivered verbally, in writing, or both, in which case these details should be finalised prior to the mediation taking place.

Negotiating monetary compensation in these claims is complex and requires a sensitive approach. It is always preferable for the offers exchanged to be restricted to as few as possible and for each side to reach their final positions as quickly as possible. For most claimants, the process of negotiating compensation is a foreign concept and one that should not be prolonged unnecessarily. It is also imperative that any technical issues are discussed between the legal representatives during private session.

In accordance with the usual procedure, a deed of settlement and release is generally required to be signed before a settlement can be finalised. Again, we recommend a collaborative approach to the clauses required and consider any particular preferences the claimant might have. This is often relevant in respect of confidentiality clauses, which should be approached with caution. In our experience, there is nothing to be gained from restricting a claimant from discussing the circumstance of their claim or their experience of the claims process.

While, in our view, compensation should be commensurate with the individual injuries sustained by the particular claimant, at the same time consistency in the handling of claims involving sexual assault is essential. It seems to us that this is important to avoid a risk of the claimant feeling oppressed or further victimised. Institutions need to be aware of, and consider, verdicts and settlements in other cases involving similar harm to victims of sexual abuse both within similar organisations and externally. Alleged abusers should also be pursued for contribution where it is practical and appropriate to do so. For many survivors, the inaction taken towards alleged abusers can be destructive and difficult for claimants to understand and overcome. However, actions for contribution are also difficult to succeed for various legal and evidentiary reasons, which are characteristic of these matters, not the least of which, given the effluxion of time, is that many alleged abusers are already deceased by the time the claim is brought (or may be impecunious).

Finally, it is important to acknowledge that to act in these matters is a privilege. It is a privilege because it provides an opportunity to make a difference in the life of somebody who has been carrying a heavy burden, often for most of their life. It is plainly apparent from the stories told in statements and mediations that the impact of abuse has usually infiltrated every aspect of a claimant’s life. That burden is not uncommonly tarnished by guilt and grief. Interactions with the claimant are a humbling experience that require patience and understanding. It is critical that there is genuine engagement with the legal colleagues and the mediator. Importantly, despite what is often an emotionally charged environment, a defendant lawyer still needs to apply legal principles to the assessment of the claim and advice on damages.

Wendy Blacker is the Director of Wendy Blacker Lawyers. PHONE [phone] EMAIL [e-mail].

Laoise O Connor is an Associate at Wendy Blacker Lawyers. PHONE [phone] EMAIL [e-mail].