In some cases claiming compensation can be straightforward and can be processed without the assistance of a lawyer. If your claim is more complex you are advised to seek the assistance of a lawyer to maximise your chances of succeeding in your application or to increase the amount of compensation.

If your claim involves any of the following circumstances we would recommend that you seek the assistance of a lawyer in preparing your claim:

• you have not reported the offence to police or are out of time in reporting the offence;
• the offender has not been charged or has been acquitted of the offence;
• the victim is a child;
• the harm you have suffered is as a result of long term sexual abuse;
• you are unsure of your injuries or loss or wish to make a claim purely for a mental or psychological injury;
• you are a close relative of a person killed as a result of the offence and wish to make a claim for loss of financial support or funeral expenses;
• you wish to make a claim for future loss of earnings or
• you are not satisfied with the amount of compensation you have received and wish to appeal.

Legal costs will generally not be claimable as part of your application. Any fees incurred will have to be paid for by the victim. In some jurisdictions a lawyer cannot seek fees from their clients for assisting with a victim’s compensation application.

As well as assisting with your application a lawyer can provide advice on whether you have other avenues available to you such as seeking compensation directly from an offender. Depending on the circumstances of your case it might be possible to file a separate civil litigation suit against the offender and seek compensation based on their assets. These types of suits can yield higher awards of compensation for victims. It is important to keep in mind that civil claims for damages against an offender are only available where the offender has been convicted of a crime.

There are risks associated with seeking compensation through private litigation. It is important to consider these risks prior to making the decision to litigate.

1. Financial risks

If you win the judge will likely declare a judgment debt in your favour payable by the offender. If the offender has no assets or money with which to pay that debt they may declare themselves bankrupt. If this occurs your judgment debt becomes null and void (unenforceable). It is important to check to see if the offender has assets or money prior to commencing a civil action. Your lawyer can run an assets check for you and freeze any assets held by the offender until the litigation is resolved.

If you win the case the judge will not necessarily award damages in the amount you claim. Your lawyer will indicate an estimated range of damages to expect based on the type of injury or harm you have suffered. Some states have caps on the maximum amount of damages that can be claimed. It is important that you consider the expected financial return of the litigation allowing for legal costs to be paid before making the decision to litigate.

If you lose the case you will not only have to pay your own legal fees but you may also be ordered to pay the offender’s fees as well. These can be well into the tens of thousands of dollars.

1. Mental health risks

It is important to consider the mental and emotional strain litigation will have prior to commencing. Civil litigation is by its very nature adversarial (combative and aggressive), expensive and lengthy. It is not unusual for a civil suit to take longer than a year from start to end. As the plaintiff you will be required to give evidence in court about the crimes committed against you. You will also be cross-examined by the offender’s lawyer. This can be traumatic especially for victims of violent crimes such as sexual assault. You will have to describe how the crime has affected your life. This can be difficult for victims who wish to forget the incident and move on. If the case is successful your pain and suffering may be vindicated. If the case is not successful you may suffer further emotional harm and a feel that your time, money and energy have been wasted. It is important to discuss these matters openly with your lawyer prior to commencing a lawsuit in order to have a clearer understanding of what to expect.