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Home / New Zealand

Abuse in Care: Cooper Legal accuses Crown agencies of working together to delay claims, lower payout

Michael  Neilson
By Michael Neilson
Senior political reporter, NZ Herald·NZ Herald·
1 Oct, 2020 03:56 AM6 mins to read

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Cooper Legal partner Amanda Hill (left) and principal Sonja Cooper. Photo / File

Cooper Legal partner Amanda Hill (left) and principal Sonja Cooper. Photo / File

A man abused as a boy at a state-funded boot camp on Great Barrier Island known as "Alcatraz" that left him with "catastrophic impacts" received just $5000 compensation from the Government.

Meanwhile, another received $90,000.

The stark difference came from one of the claimants going through the Government's "fast-track" process, while the other threatened to take his case to trial.

To add further insult, the Crown spent more than $1 million in legal fees fighting the latter case, which it lost.

Cooper Legal, which has represented thousands of survivors, highlighted the cases during the ongoing Abuse in Care Royal Commission of Inquiry as examples of the Crown's "highly unjust" approach to providing redress.

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The firm also revealed the vast discrepancies between what the Crown spent defending itself and what it paid survivors, difficulties for claimants in accessing legal aid and how it believed Crown agencies worked together to delay and even prevent cases proceeding.

The commission is investigating abuse in state and faith-based care between 1950 and 1999 and is hearing the experiences of survivors in seeking redress, such as compensation, counselling or an apology.

Over the past week and a half about a dozen survivors have shared their stories of the sexual, physical, emotional and psychological abuse they experienced in state and faith-based care - institutions that were supposed to look after them - and the trauma and lifelong impacts that followed.

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Amanda Hill, a partner at the firm, said the fast-track process, set up in 2013 to streamline the high number of cases about abuse in care, had resulted in much lower payouts.

All claimants at the time were "opted in" to the scheme by the Government, and paid according to a set of criteria and out of a larger pool set aside.

But there still appeared to be no fair way of handling claims, and those who went outside the scheme often received much higher settlements.

One man, known as BSM, as a boy spent six years to 2005 at Whakapakari on Great Barrier Island.

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There he was strip-searched, physically abused by staff and other boys, and placed in solitary confinement on "Alcatraz", a rocky island offshore often used as a form of punishment.

BSM was included in the fast-track process and accepted a $5000 settlement against legal advice as he "wanted it to be over".

Meanwhile T, whose claim related to a physical assault in the presence of BSM, received $60,000 and a further welfare payment. He was part of a four-person claim that nearly went to trial. Another claimant received $90,000.

"It is such a stark disparity. I can't see how BSM's payout can be fair or reasonable," Hill said.

Hill said despite reforms to the processes there are still issues. Cooper Legal principal Sonja Cooper spoke about difficulties fighting for legal aid, and how access was often used to delay and even prevent cases from proceeding.

Many clients had little education, and were being expected to represent themselves in highly complex proceedings.

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"It is completely unreasonable," Cooper said.

At one point Cooper became visibly emotional when mentioning how during their battles with legal aid a judge made a complaint about her to the Law Society.

Four years later she was vindicated but, most devastatingly, fighting for funding had a "catastrophic effect" on their ability to represent their clients.

The firm shrunk by half during these years, and continued taking on cases without payment. It was also subject to a gruelling legal aid audit over about 1.5 years.

"The Crown kept pushing these hearings on, knowing we had no funding, knowing we'd have to wait until funding was reinstated," Cooper said.

"It led to us having to withdraw in advance, and a lot of clients had to abandon their claims.

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"I still feel sick about that to this day."

They later found out through Official Information Act requests that legal aid and various Crown agencies had been meeting to discuss their strategies for how to deal with the claimant group and specifically their firm.

"I think they were planning a joint strategy about how to deal with the claims, and that strategy included how to deal with Cooper Legal," Cooper told the Herald.

Without representation clients were more likely to accept lower offers, she said.

Evidence from Cooper Legal also revealed the stark "inequality in arms" when it came to Crown defence costs and funding for those abused in its care.

Cooper discussed the Whakapakari case where MSD spent more than $1m during a 12-year legal battle it eventually lost, paying four claimants $340,000, and $369,000 for their legal aid.

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The commission had also previously heard from Earl White, not his real name, who was sexually and physically abused in state care and spent 12 years battling the Crown, which spent close to $2m. It eventually paid him $35,000.

"How many claims could be settled if, instead of fighting all of this, they'd been making meaningful settlements?" Cooper told the Herald.

"Add to that the delays that run for years while money is being spent to block the claims, wearing them down until they accept $5000."

And clients are dying before they see justice.

"This year it is in the double digits," Cooper said.

The Crown is expected to respond to witness statements in hearings next month.

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Where to get help:
• 0800 543 354 (0800 LIFELINE) or free text 4357 (HELP) (available 24/7)
• https://www.lifeline.org.nz/services/suicide-crisis-helpline
• YOUTHLINE: 0800 376 633
• NEED TO TALK? Free call or text 1737 (available 24/7)
• KIDSLINE: 0800 543 754 (available 24/7)
• WHATSUP: 0800 942 8787 (1pm to 11pm)
• DEPRESSION HELPLINE: 0800 111 757 or TEXT 4202
• NATIONAL ANXIETY 24 HR HELPLINE: 0800 269 4389
If it is an emergency and you feel like you or someone else is at risk, call 111.

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