Loophole closed allowing survivors of abuse a second chance

The Victorian government recently closed another legal loophole confronting survivors of childhood institutional abuse.

Survivors who accepted compensation from an institution relating to child abuse between July 2015 and July 2018 can apply to have that settlement set aside, if it is “just and reasonable” to do so, like all other survivors.

This follows legislation passed in 2018 and 2019 which made it easier for abuse survivors to pursue their rights against organisations and institutions historically harbouring paedophiles.

In the past, institutions used strategies such as time limitations and the Ellis defence to defeat and minimise claims by victims. The Ellis defence relied on the old rule that unincorporated entities could not be sued. This, along with time limitations, meant that many institutions offered limited amounts of compensation to survivors. For survivors, this was their only option to receive compensation from the institution.

Victorian legislation abolished the Ellis defence in 2018, removing this major hurdle for abuse survivors. In 2019, further legislation allowed old settlements to be set aside if a court found that it was just and reasonable to do so and if the settlement had been made before 1 July 2015. With this most recent reform, survivors who settled their claims between 1 July 2015 and 1 July 2018 will no longer be left out in the cold.

This latest legislation clears the way for more victims to re-open claims they settled for meagre amounts against institutions such as the Catholic Church.

If you accepted a settlement during this period, you can now apply to the courts to have your settlement and deed of release set aside. It’s important to seek legal assistance from a lawyer who specialises in institutional abuse. If you accepted a settlement before 1 July 2018, you may be able to make a new claim and access further compensation.

Slater and Gordon Senior Associate (Abuse) Jane McCullough

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