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The State Government is being slammed over “flawed” legislation that makes it almost impossible for victims of historical child sex abuse to receive fair compensation.
Calls to urgently fix the “failure” come after a survivor of horrific abuse by paedophile counsellor Kevin Lynch lost his last-ditch bid to reopen a damages claim against Brisbane Grammar School.
The man’s lawyers said ill-defined terms in amendments to legislation made in response to the Royal Commission into Institutional Response to Child Sexual Abuse meant respondents could be favoured over victims.
The man, known as TRG, was abused at least six times as a 12 and 13-year-old student at Brisbane’s most prestigious boys’ school in the 1980s.
On May 20, the High Court of Australia rejected TRG’s appeal of a Supreme Court ruling that prevented him fighting for a higher payout than his earlier 2002 settlement of $47,000.
TRG was the first Lynch victim to test the 2016 amendment to the Limitation of Actions Act (Qld), which states a court can set aside previous settlements to permit new claims if it decides it is “just and reasonable to do so”.
Brisbane Grammar School is facing a $30 million lawsuit from a former student over claims he was abused there as a teenager.
TRG’s lawyers, who said their client was “recovering from the High Court findings”, said the Government’s failure to define “just and reasonable” left the words open to broad interpretation that could disadvantage victims.
Peter Wilkinson, McNamara Law managing director, called on Attorney-General Shannon Fentiman to clarify the phrase.
“We believe Parliament’s intention was to benefit victims but without defining that phrase we can’t see how a case will ever get around it,” Mr Wilkinson said.
Joshua Brown, senior associate at McNamara Law, said TRG’s case was submitted to the High Court as “a clear injustice”.
“But all a respondent needs to say is this all happened 20-30 years ago and it creates a prejudiced defence,” Mr Brown said.
He said the High Court finding “demonstrates the underlying flaw and failure in the Queensland legislation”.
The Brisbane Grammar board of trustees submitted to the High Court that the school would suffer prejudice – that would not be “just and reasonable” – if TRG’s settlement agreement was set aside.
This was based on issues relating to the credibility of former headmaster Max Howell, who swore an affidavit in 2002 denying he knew of Lynch’s abuse.
Dr Howell, who died in 2011, was unavailable to test evidence referred to in the Royal Commission in which witnesses said he had explicitly been told of the abuse as early as 1980.
Ref: Courier Mail article published on 31 May 2021, author Kylie Lang.