Civil litigation – taking a Crown agency or faith-based institution to court – is in general a stressful, expensive, slow, and adversarial process for survivors of abuse in care. It is also a route blocked by significant legal barriers, and as such is not currently a viable option for the vast majority of survivors.
Many survivors have filed claims in court. We have already criticised the Crown for the aggressive way it responded to these claims, and the way its conduct made civil claims extremely difficult for survivors. But beyond this conduct, there are some inherent practical and legal limitations to civil litigation that currently make it very difficult for survivors to bring a successful civil claim in Aotearoa New Zealand.
Despite the poor odds, and the availability of out-of-court claims processes, some survivors remain determined to go to court. It offers the advantage of being independent of the agencies involved in the abuse and courts can award compensation worth far more than out-of-court settlement offers. Some survivors want a forum in which to test facts and get institutions to answer for their actions in public. Some want to test claims that are not specifically recognised in a particular claims process, for instance, a claim for a breach of rights under the New Zealand Bill of Rights Act 1990.
Civil litigation remains the main alternative to the out-of-court claims processes for financial redress, and the only place to turn if a survivor is unhappy with the offer made through an out-of-court process. It therefore remains an important pathway for survivors, but one plagued by obstacles.
Survivors face a whole raft of legal barriers to pursuing civil cases for abuse in care in court. These include:
- accident compensation legislation that bars those with cover from suing in court for compensation
- the Limitation Acts of 1950 and 2010, which (with some exceptions) provide a defence to claims more than six years old
- immunities under mental health laws and a related restrictive time limit for bringing claims
- the difficulty in identifying the right defendant
- the difficulty in establishing that an organisation is liable for the wrongful conduct of an individual
- the difficulty in proving, in the absence of written records or other supporting evidence, that specific abuse occurred in care
- the difficulty in proving the abuse suffered in care caused problems later on, such as medical or mental health conditions, or struggling to get and hold on to employment.
In the following sections, we look at each of these hurdles.
Accident compensation legislation
A survivor cannot get financial compensation through the courts for an injury caused by abuse if that injury is covered by accident compensation legislation. That means that a survivor cannot get compensation through the courts for physical injuries (including intentional injuries, for example from physical abuse) caused after April 1974, as well as mental injuries caused by sexual offences when the first date of treatment for those injuries is after 1992. The scheme is regarded as a “social contract”: in exchange for not being able to claim for wrongful injury through the courts, New Zealanders are able to receive various forms of support, such as financial payments and counselling.
A survivor might still be able to seek a payment known as exemplary damages for an injury in the worst cases, but they are very difficult to get. These payments are only granted if the defendant’s actions were outrageous, as punishment for their wrongdoing. Typically, amounts of exemplary damages awarded by the courts are not high.
Many abuse in care claims have been defeated by time limitation defences under the Limitation Act 1950 and Limitation Act 2010 – essentially defences that can be raised if a person takes too long to bring a claim after the abuse happened. One judge described the passage of time between the abuse and the court claim as an “insurmountable hurdle”.
The Limitation Act 1950, which has applied to most claims so far brought to court, is not a statutory bar that prevents a claim being heard in court, like accident compensation legislation, but a defence that a defendant can choose to raise. A defendant can raise the defence if a case is brought more than six years from the date the event happened. For claims involving bodily injury including psychiatric injury, a person must bring court action within two years. They can bring a claim after that with the leave of the court or the consent of the defendant, but the six year period still applies.
One exception is if a survivor can prove a “disability”, such as being of unsound mind or under the age of 20, that prevented them from bringing the claim earlier. Another exception allows the six-year period of time to start from a date that a survivor can show they could have reasonably discovered that the defendant’s conduct caused their suffering. This exception recognises that often survivors remember their abuse, but do not necessarily link it to their current difficulties. Since the case of brothers Paul and Earl White (not their real names), the courts have adopted a stricter approach to determining whether a claimant should have reasonably realised the cause of their harm. This exception is now confined to cases involving sexual abuse.
The Limitation Act 2010 has replaced the Limitation Act 1950, but it applies only to claims for abuse that happened after 2011. The 1950 Act continues to apply to claims brought before 2011. Since 2011, if a claim is made about abuse as a child, the court has a discretion to order a payment of damages even though the claim is outside the time limits of both Acts. But again, it is for the survivor to persuade the court to allow the claim, rather than for the Crown or faith-based institutions to convince the court that it should not.
The Crown has always exercised its right to rely on limitation defences in defending abuse in care claims in court. Faith-based institutions can also rely on limitation defences and have chosen to do so in the past. The result, as one judge noted, has been to preclude survivors who “have undoubtedly undergone regrettable suffering during their childhood and adolescence” from seeking legal redress.
Mental health legislation
Survivors who were inpatients in psychiatric care settings face further barriers under two Acts: the Mental Health Acts 1911 and 1969. These Acts are no longer in force, but apply to some historical claims. The Acts give staff members and others acting in pursuance, or intended pursuance, of the Acts immunity to civil claims and criminal liability. The immunities do not cover actions done in bad faith or without reasonable care. However, a claimant must apply for leave of the court to bring a claim about such an action, and has only six months from the alleged act to do so. As a result many survivors have been unable to take historic claims to court.
Courts have accepted that some acts, such as sexual abuse or gratuitous violence, are not able to be done in pursuance or intended pursuance of the Act, so fall outside the immunity, and do not require leave. It remains unclear whether other acts, for instance the administering of electro-convulsive therapy to “correct bad behaviour”, also fall outside this immunity.
Crown Proceedings Act 1950
The Crown Proceedings Act 1950 is yet another barrier to redress for survivors of abuse in State care. With limited exceptions, survivors cannot directly sue the Crown or the State agency that had a hand in their abuse. Instead, they must identify the individual Crown employee or employees responsible for the abuse and prove that the Crown has legal responsibility for the employee or employees’ wrongdoing. However, survivors often struggle to identify their abuser or abusers, particularly if the abuse happened a long time ago as a child. If they can’t do this, they can’t sue the Crown. Also, the need to pin the responsibility for abuse on individual employees means survivors cannot argue they were a victim of systemic negligence by one or more government agencies. For example, a survivor can’t successfully claim the Crown was responsible for their abuse because of the way the agencies were set up and run. In 2014, the Law Commission recommended legislative changes to allow the Crown to be sued directly. The Government of the day rejected the recommendation, but survivor advocates continue to press for such a change.
Difficulty in establishing vicarious liability and identifying defendant
Survivors can find it difficult to establish the vicarious liability of the Crown, faith-based institution or other organisation for the wrongful acts of an abuser or person responsible for abuse. Specifically, they can struggle to establish the Crown’s liability if they were abused by an employee of a third-party care provider. It is even more difficult if the abuser was someone other than the caregiver, such as another child in care or a foster sibling.
Yet another difficulty is identifying the agency or body to sue. Some institutions or incorporated entities no longer exist or are unincorporated bodies without any distinct “legal personality” and so can’t be sued directly. (Instead, survivors must identify office-holders such as trustees.) Identifying the defendant to sue can be complicated even when an institution still exists. The Catholic Church, for example, has a complicated system of structure and governance that can make it extremely difficult to determine which legal entity should be the subject of a claim of abuse. Some settings in which abuse took place are operated by multiple entities, for example religious schools (with possible involvement of school boards, Ministry of Education, and faith-based institutions), or situations where private care providers have taken on the responsibility of State care. In these settings, it can be difficult to know which entity had responsibility for abuse.
Difficulty in proving abuse took place and establishing institutional responsibility
Survivors can face great difficulty proving that abuse occurred. Abuse, because of its nature, is not often documented. Institutional records from the time of the abuse may have been lost or destroyed, and any that do still exist may be minimal, cryptic or incomplete. Witnesses may have died, be suffering from serious medical conditions or be unable to be found. In the absence of written records or other corroboration, proving specific abuse took place can sometimes be extremely difficult, particularly for survivors with learning disability or psychiatric illness. Even if they succeed in this, survivors face other legal hurdles. For example, if bringing a negligence claim against an institution, they have to establish the institution had a duty of care that it breached, and that the abuse caused problems in later life. Each of these elements can be hard to prove. Causation can be particularly difficult. In the case of the White brothers, for example, even though the judge accepted they had both been physically abused, and Earl had been sexually abused while in care, the judge held that the pair had not proved that the abuse had a material impact on their lives. The judge found that the abuse and neglect suffered at the hands of their parents was the main cause of their problems later on, and so the State was not responsible for any damage.
Other obstacles to redress through the courts
Civil litigation is, by its nature, a difficult route for anyone seeking redress, and this is especially so for survivors of abuse, as explained next.
Redress options narrow
Civil litigation may not be able to give many survivors the redress they seek even if their claim is successful. The best outcome from civil litigation is financial. As we have already discussed, financial compensation for the abuse suffered while in care is important to some, but many want other things, too, that address their oranga, or wellbeing, and mana, such as apologies, restoration, assistance with getting further education and/or employment training, locating family members and counselling. The courts don’t normally provide any of these. Even if a court does award financial compensation, the survivor will not receive it if the defendant cannot pay, or if its assets are beyond reach.
Also, the courts in Aotearoa New Zealand are founded on western values and have typically given only very limited recognition to tikanga principles. It is unclear to what extent they would recognise familial and cultural harm suffered by many survivors of abuse in care (for example loss of sense of identity, culture, language, belonging and family and whānau connection), or the extent to which they could consider the impact of abuse on survivors’ family and whānau, including later generations of family and whānau.
Civil litigation is drawn-out and expensive
Litigation can be a long battle for survivors, often dragging on for years. Survivor Leoni McInroe’s lawyer worked on her claim for 10 years, and the eventual settlement came through an out-of-court agreement, not the courts. The White brothers’ claim took 11 years. Describing the long process, Earl White said
“[it] felt like torture, and in some ways was worse than the abuse I suffered … it just kept going on and on”.
Litigation is also very expensive, and survivors, because of their life circumstances, tend to have little money. Many qualify for government-funded legal aid, which pays for a lawyer they would not otherwise be able to afford. However, even then legal aid recipients face having to pay off large legal aid debt, unless the amount is written off as part of a settlement or covered by a court order. For instance, Leoni McInroe had to repay $49,000 of legal aid. Survivors who don’t qualify for legal aid must fund court action themselves. Survivors used to find it much harder to get legal aid because it was based in part on an assessment of the likelihood a case would succeed. Given the barriers in the way of a successful claim by survivors, few applicants received assistance.
Legal aid is now available for out-of-court processes as well as court proceedings. Funding for historic abuse claims topped $20 million. A review of legal aid in 2009 found the administration cost alone of assessing survivor applications was significant. The review said such applications, if all approved, would put huge pressure on the resources of the Legal Services Agency, which administered legal aid.
Civil litigation is not just a very expensive exercise for claimants. The legal costs for both sides are often significantly greater than the amount that would be awarded to a successful claimant. This is well illustrated in the case brought by a survivor in X v Attorney-General, where MSD paid legal fees of $336,365.15 to Crown Law and $351,251.70 to external counsel for the period of January 2015 to 30 June 2016. X’s legal counsel, Cooper Legal, received legal aid of $305,000 for its work on the case. X eventually settled his case for a dramatically smaller figure, receiving $60,000 from MSD and $20,000 from an NGO.
Survivors, especially disabled survivors or those living in provincial or rural areas, can have trouble finding lawyers with the necessary experience in abuse in care cases. People with learning disability typically need a lawyer to spend more time with them on their cases, but there is no recognition of this extra burden by the legal aid process.
Civil litigation can be traumatic and emotionally distressing for survivors
The clash between institutions and survivors in the courts is a vastly uneven one. Institutions are well financed and well equipped with legal representation, while survivors are often on a shoestring. It is uneven in other ways, too. Survivors often come from the most marginalised, and often most socially disadvantaged and impoverished, parts of the community. Their abuse usually leaves them with a poor education, serious health conditions and other continuing effects of their trauma. These are serious deterrents to civil litigation. But there are still others: survivors must recount in detail their abuse, a highly sensitive and distressing subject, to their lawyer, first to establish there is a valid claim to make, and later in a more detail – sometimes over multiple meetings – to develop a statement of claim. Then they must check the accuracy of documents prepared for the case that lay out the abuse in black and white. There may be one or more examinations by a psychiatrist, who will go over the abuse again. Then they must give evidence in court and be cross-examined by defence lawyers, whose role is to raise doubt about the truth of what the survivor is saying. All of this, over an extended period of time, can be very traumatic.
Next: Accident compensation scheme