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Royal Commission into Violence,
Abuse, Neglect and Exploitation of People with a Disability
Submission by Shine Lawyers
29 APRIL 2020
1311 99 shine.corn.au
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- Introduction Shine Lawyers are pleased to provide this submission to the Royal Commission into
Violence, Abuse, Neglect and Exploitation of people with Disability (the Royal
Commission).
Shine Lawyers is the third largest specialist plaintiff litigation law firm in Australia. The firm has 680 people spread throughout 44 offices in Australia.
We have a dedicated team of abuse lawyers who specialise in providing legal advice and guidance to survivors of abuse, standing as a voice for clients, and helping them access justice and acknowledgement for the wrongdoing they have suffered.
Shine Lawyers has extensive experience representing survivors seeking redress in every institutional redress scheme in Australia. These include but are not limited to the
Defence Abuse Response Taskforce, Victims of Crime Act 2001 (SA), Queensland ex
gratia scheme, Tasmanian Abuse in Care ex gratia scheme, the WA Redress, Defence Force Ombudsman reparation scheme, Melbourne Response and Towards Healing.
Shine Lawyers represented clients giving evidence before the Royal Commission into
Institutional Responses to Child Sexual Abuse (Royal Commission) and made a
submission in response to the Redress and Civil Litigation Consultation Paper in March
- 1 The firm has conducted many individual and group actions in processing and negotiating compensation arrangements for survivors of sexual abuse.
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- Submissions This submission will address inadequacies in the legal system preventing people with
disabilities who experience violence, abuse or neglect from receiving a just outcome.
We believe tort litigation is a necessary element to improve quality of care provided to people
with disabilities. To make litigation a viable option for survivors of abuse and violence,
aggravated and exemplary damages should be permitted because compensatory damages are often inadequate. Without tort litigation and appropriate damages being paid for breach of a responsible entity’s duty of care, there is no accountability for an institution that failed in their duty of care. This means there is little incentive for organizations to do better preventing abuse, violence and neglect within their facilities. A further consequence is that those impacted by the negligence or those responsible for violence or abuse taking place have no voice and no access to justice.
We suggest a rethink to caps that apply on legal costs to facilitate more survivors of abuse, violence and neglect having access to legal representation to pursue claims. Model litigant guidelines or dedicated court lists may assist to expedite claims. Finally, we suggest the Royal Commission consider recommending a human rights act for Australia to bring consideration of the human rights of people with disabilities to the forefront of all claims discussions. We feel these reforms could significantly improve the legal landscape for survivors of abuse or violence with disabilities.
The role of litigation in improving quality of care
Litigation is an effective way to highlight problems in the quality of care provided to people with disabilities. Where abuse, neglect or violence occurs as a result of a failure to meet a duty of care owed to a person with a disability, civil litigation can draw attention to those failures
and consequently improve standards. Claims for negligence and intentional torts have
historically brought poor practices to light and driven reform.
Importantly, litigation also affects the financial bottom line for those responsible for abuse, violence or neglect. If a moral or ethical obligation is insufficient to drive change, litigation can provide a financial incentive for those responsible to improve care to people in their charge.
Compensatory damages
Compensatory damages are designed to compensate people who have suffered harm as a result of the negligence or wrongdoing of others. They are intended to return someone to the position they would have been in prior to their injury. Heads of damage usually include economic loss (past and future), paid and unpaid care (past and future), past and future medical treatment and general damages (pain and suffering). When limited to these heads of damage, payments to survivors of abuse, violence or neglect who have a disability (or are elderly for that matter), are much too low. Payments for general damages are very low to begin
with, particularly in Queensland. People with a disability who are not in remunerative
employment are unlikely to be able to claim lost income payments and the cost of medical treatment is outlaid to other providers rather than compensating a claimant. The damages payable to people who are already not working and were in need of care prior to the abuse or
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mistreatment are minimal. Consequently, claims for abuse, violence or neglect where a provider has failed in its duty of care to a person with a disability are rarely viable for people to pursue. Even where the failure towards the survivor of abuse is egregious. The legal costs involved bringing these claims may make the claim unviable after those costs are deducted from any payment.
Unfortunately we have seen many people where there appears to be evidence that the care provided was of an unacceptable standard and yet have needed to advise the person not to proceed because the proceedings would not result in an outcome that would be meaningful or worthwhile or the person with the disability or their family to pursue.
We have had to advise these people or their families that whilst we agree that their abuse or violence resulted from negligence of those with an obligation to protect them from harm and this has had significant consequences, it was not worthwhile or in their best interests to commence a claim for negligence.
The result of the law as it currently stands is that there is limited accountability for an institution who fails in their duty of care towards a person with a disability leading to abuse or violence. There is little incentive for care providers to improve the quality of the services and those impacted by negligence have no voice to call for change.
The desire to bring a civil claim in negligence is grounded in the desire to state publically that they (or a loved one with a disability) have been harmed by the substandard care by an organisation or carer who owed them a duty of care. A claimant aims to prevent others from
being harmed in similar circumstances in future. Being told their claim is financially not
worthwhile and that it is not in their best interest to pursue a claim can be devastating. It
effectively says that the lives and experiences of abuse survivors with a disability do not matter. Nothing could be further from the truth.
These changes might include making abuse and violence perpetrated against people with
disabilities exceptions to the rules in each state restricting compensatory damages in
negligence claims.
Aggravated and exemplary damages
Unlike compensatory damages, the purpose of aggravated and exemplary damages is to do more than compensate the claimant for the wrong they have suffered. As outlined above,
compensation viewed in those limited terms results in limited payments to claimants with
disabilities or the elderly. By contrast, aggravated damages are designed to compensate a plaintiff who experiences mental suffering as a result of the way the defendant behaved when committing the wrong they suffered. Exemplary damages are designed to deter a defendant from similar behavior in future where any punishment already imposed does not do justice.
Civil liability reforms were enacted in Australian jurisdictions in the early 2000’s. Amongst other
things, these reforms precluded or severely limited the ability to claim exemplary and
aggravated damages in claims for negligence causing personal injury.2 As a result of these reforms, claims are limited to the other heads of damage and are less likely to be viable.
In the approximately 17 years since civil litigation law reform was enacted across Australia, pressure has been mounting for change. Particularly with increased awareness of abuse,
2 See s21 of the Civil Liability Act 2002 (NSW), s19 of the Personal Injuries (Liabilities and Damages) Act 2003 (NT), section 52(1) of the Civil Liability Act 2003 (Qld), s70(6) of the Civil Liability Act 1936 (SA), Civil Liability Act 2002 (WA) and the Trade Practices At 1974 (Cth).
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violence and neglect of vulnerable members of the community such as people with disabilities or the elderly. We suspect that the effective exclusion of survivors of abuse with a disability
was an unintended consequence of tort reform. In the current social climate, it is no longer
acceptable to allow people with disabilities to continue to face this additional hurdle to
accessing justice.
We would go so far as to suggest that legislation be enacted making the award of exemplary damages strict liability in negligence in claims for abuse of someone with a disability or the
elderly. For example legislation might say exemplary damages should be awarded in
circumstances the defendant had knowledge of the risk of harm but carried on a process that resulted in the person’s abuse and knew at the time of the exposure to the risk that the exposure could result in abuse. Whereas exemplary damages are rare at common law, such a legislative scheme could tip the balance toward exemplary damages being the norm.
We see no reason why claims for negligence involving abuse or violence against a person with a disability should not be made an exception to the rule against punitive damages in civil liability acts or alternatively that exemplary damages be awarded on a strict liability bass.
A more expeditious process
Lesser knowledge of legal rights or a belief about the conflict and distress pursuing a claim may inhibit some with disabilities making claims. The lengthy time a claim might take, we are
told, is also important to a potential claimant. We suggest a model litigant approach be
considered to ensure those actions in negligence resulting from abuse or violence against someone with a disability are processed under expeditious procedures and unencumbered by unnecessary formalities. Separate court lists might be an option to expedite such claims.
Legal costs
Another barrier sometimes influencing whether a claim is brought for violence or abuse of someone with a disability is the legal costs.
There are caps placed on legal costs in most jurisdictions where the damages payment received falls below a certain threshold. The restrictions on legal costs operate differently depending on the jurisdiction. In NSW for example, the Legal Profession Uniform Law, fixes the maximum amount for costs at 20% of the amount recovered or $10,000, whichever is the greater where the damages recovered does not exceed $100,000. In these circumstances an individual may enter an agreement with their lawyer so that the client pays the shortfall between the actual costs incurred and the amount the Defendant can be required to contribute. Where claims are hard fought by a Defendant or are
particularly complex, for example where there are communications difficulties with
claimants, interaction with family members and perhaps multiple institutional defendants, costs in excess of $10,000 are unavoidable and can be prohibitive to an abuse survivor bringing their claim. Even if successful, if damages are paid less than $100,000, a plaintiff may not receive substantial payment in hand after the remaining legal costs are deducted from any payment.
The cap on legal costs operates differently in other states. In Queensland for example, a
solicitor is not permitted to charge in excess of 50% of the damages payment after
deductions for statutory reimbursements and disbursements are deducted. Whichever method of limitation on legal costs applies, ultimately the effect on potential claimants is similar in that a potential claimant has to consider whether, based on the likely damages available, the prospects of success and likely cost of pursing the claim to successful
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resolution as well as the time and distress of the complainant and their family, whether pursuing a claim is truly the best decision.
Resourcing community legal centres and the generosity of pro bono legal services providers must remain a priority. Additionally, lifting caps on legal costs for claims relating to violence and abuse against people with a disability, would allow greater numbers of survivors to pursue damages compensation.
A human rights approach
The debate over a human rights act for Australia has continued for many years. Rights for people with a disability are given effect by the Disability Discrimination Act 1992, some state
based human rights legislation and international convention. These rights should be
supplemented with a strong Australian human rights act to ensure that human rights discourse for people with a disability stays at the forefront of law and policy creation and service provision.
An Australian human rights act would assist the public to see the human rights for people with a disability more broadly than service charters might. It would also recognise intersecting diversity status’ for people with a disability who are also culturally or linguistically diverse, elderly, women, LGTBTIQ or from regional or remote areas.
Economic social and cultural rights described in international instruments could be given
additional legal status and impetus for change such as having adequate housing, an adequate standard of living and health. It would also contribute to improvement in service delivery and make remedies available where human rights are breached.
An Australian human rights act could be part of the impetus for change where existing legal rights are insufficient and might have a beneficial impact even without the need to reach court proceedings.
- Conclusion People with disabilities require the same excellent level of care as any others and where there is some failing in that care, just compensation should be available.
Until people with disabilities who experience abuse and violence can hold the responsible institutions to account, there is little or no financial incentive for care providers to improve.
We hope the Royal Commission considers changes making it possible for survivors of abuse and violence to bring viable claims for compensation arising from what they experienced. It is only then that real change will be seen.