Legal: Haunted by a "past" that didn’t happen

Queensland Teachers' Journal, Vol 127 No 3, 14 April 2022, page no. 25

One of the most disturbing developments for teachers in recent years has been the explosion in personal injury claims (PIPA) by former students for alleged historical sexual abuse. Genuine appeals for compensation by victims of abuse are being overshadowed by claims which are, in our view, not all created equal. 

When PIPA comes knocking 

The claim is commenced by the former student against the Department of Education, alleging that they were sexually abused by a teacher while enrolled at a Department of Education school. Initially, only the department is a defendant, not the teacher.

The department then issues the teacher with a contribution notice, which alleges the teacher is personally liable for the claim and requests financial contribution.

The National Redress Scheme and its unintended consequences

The origin of the recent explosion in claims may be the National Redress Scheme, which was created in 2018 to compensate traumatised victims of abuse without exposing them to the combative legal system and potentially causing them further harm. 
Under the scheme, an "operator" determines the “reasonable likelihood” that the claim is genuine, ie the chance of the person being eligible is real, and not fanciful or remote, and is more than merely plausible. The operator must consider that the scheme was established in recognition that some claimants may:

• have never disclosed their abuse previously
• be unable to establish their presence at the institution at the relevant time 
• not have corroborating evidence of the abuse they say they suffered.
   

In layman’s terms, this is an extremely low bar. 

A problem shared

Section 16 of the Personal Injuries Proceedings Act (PIPA) states:

• A respondent who receives a complying part 1 notice of claim may, within the time prescribed under a regulation, add someone else as a contributor for the purposes of this part by giving the person a written notice. 
   

This section permits but does not require the department to join the teacher as a contributor. It is not mandatory. It is a discretionary step. 

The department is already locked in as a defendant in the proceeding and must carry all the legal cost of defending the claim. 

While serving a contribution notice on members gives the department the right to ask the teacher for a financial contribution to any settlement or court judgement, it is the firm position of the QTU that none of their members should voluntarily contribute to any settlement. 

The vast majority of teachers are not able to satisfy any judgement for damages made against them and, therefore, it is arguable the basis for joining them as a contributor is unjustified.  It is also arguable that the department would be better able to defend these claims by not joining the teachers as contributors, as they will then be able to obtain their cooperation as an essential witness for the defence. 

Legal support and the QTU position 

The QTU extends full legal support to members who receive the department’s contribution notice, and Holding Redlich supports them through the process, ensuring they are not financially penalised and representing their interests regarding all aspects of the claim. 

The Union has made submissions to Members of Parliament noting that the claims will have to be defended by the department, regardless of whether they join the teacher as a contributor. The QTU believes the department should reconsider its practice of joining all teachers as contributors and instead look at obtaining the benefit of the teachers’ evidence as a witness in the defence.  

This approach would have no negative effect on any legitimate claims but could have a major impact on teachers and former teachers who are falsely accused.

Legal, by Rachel Drew and Edmund Burke, Holding Redlich Lawyers