Victorian Supreme Court of Appeal approves the entitlement to draw comparison of the life of the victim with the lives of siblings when assessing damages.
Judges: Beach, Niall and Kaye JJA
Date of hearing: 17 March 2023
Date of judgment: 1 June 2023
This is a Supreme Court of Victoria, Court of Appeal, decision in respect of the original decision of His Honour Justice Keogh on 9 June 2022, O’Connor v Comensoli [2022] VSC 313.
Original decision
The Respondent commenced proceedings in the Supreme Court of Victoria. He claimed damages for psychological, physical and economic injuries suffered as a result of abuse by Desmond Gannon on three occasions between 1968 and 1970.
The claim was made on two bases:
- Direct negligence by the Archdiocese which was a cause of the abuse and injuries; and
- The Archdiocese was vicariously liable for the abuse perpetrated by Gannon.
The trial Judge, Keogh J, found the special role of assistant priest to which Gannon was appointed by the Archdiocese provided the opportunity and the occasion for his abuse of the Respondent. He found the Archdiocese was vicariously liable for Gannon’s conduct. The direct and vicarious liability claims brought by the Respondent against the Applicant succeeded.
Keogh J assessed the Respondent’s damages as follows:
- Keogh J was not satisfied with the Respondent and Applicant’s assessment for pain and suffering damages and awarded $525,000.
- Keogh J awarded $15,000 for future treatment expenses.
- As to loss of earning capacity, Keogh J found the Respondent had the capacity to achieve a higher level of qualification than his siblings and awarded $1,500,000.00.
Appeal
The Applicant, Archbishop Peter A Comensoli, sought leave to appeal the decision on 5 proposed grounds. Grounds 1 to 4 concerned the findings of liability (both direct and vicarious) made by Keogh J. Ground 5 concerned the assessment of damages.
On the eve of the appeal, the Applicant informed the Court and the Respondent that he did not wish to present any argument on grounds 1 to 4. Thus ground 5, was to be determined on the basis of the findings of liability made by the trial Judge. The Applicant sought leave to amend ground 5 by adding paragraph (d). The Applicant relied on the following ground of appeal:
The trial Judge erred in his findings on quantum resulting in the award of a manifestly excessive sum:
- for general damages [Reason 547], contrary to the evidence and in the absence of adequate reasons;
- for past economic loss [Reason 547], such finding not reasonably based on the evidence;
- the overall sum awarded for loss of earning capacity [Reason 547] by rounding the figure he had previously calculated upwards without providing any reason for such an increase; and
- for past economic loss by not deducting from such sum the amount the Respondent had received by way of payments under the Disability Support Pension.
Findings
The Court of Appeal found, although the award of $525,000 for general damages may be said to be high, it was not demonstrated that it was manifestly excessive nor did any of the matters relied on constitute a specific error or otherwise vitiate the award. The Applicant accepted the abuse was horrific, the effect of it ‘profound’, and the impact ‘lifelong’. The trial Judge was entitled to draw comparisons with the lives of the Respondent’s siblings – one of which completed a painting apprenticeship, another joined the navy and then became a jeweller and his sister obtained qualifications in childcare and works in a private hospital.
In reaching this position, the Court of Appeal stated:
- It is of central importance to acknowledge the tender age at which the Respondent was subject to grave sexual abuse. The abuse occurred at a time when the respondent was young, extremely vulnerable and dependent on those around him for care and support. His ability to navigate the inevitable challenges of life was severely compromised. As the trial Judge found ‘the impact of the abuse reshaped every aspect of his life in a dramatically and destructive way”, and the “trajectory” of his life was determined by the abuse and its impact on him.
- Although he did not have a full picture of their lives [the Respondent’s siblings] and recognised like the Respondent, they left school at a relatively early age, nevertheless they were able to enjoy a level of stability, in employment and relationships that the Respondent could not achieve. The judge attributed the stark differences to the consequences of the horrific abuse.That conclusion was both logical and supported by the evidence.
The Court of Appeal found, the Applicant’s reliance on awards in other cases does not establish error. Each award will be a product of its own facts.
With respect to the leave to amend for deduction for Disability Support Pension, the Court of Appeal accepted the Respondent’s objection to the grant of leave because the Applicant did not run the point at trial and should not be permitted to argue on the ground for the first time on appeal. The Applicant was not permitted to run the point for the first time in the Court of Appeal and leave to amend was refused.
The application for leave to appeal was refused.
Implications of decision
The Court will continue to look at the evidence regarding the nature of the abuse and the lifelong impact. This decision shows that there are a number of factors that will be considered when awarding damages, including:
- The assault on a young child by an adult in a position of almost absolute power and authority.
- The changes in a victim’s psyche and life in the formative period caused by abuse, and not the result of any rational or voluntary choices made post-abuse (such as alcohol abuse).
- Consideration of the lives experienced by victim’s siblings may give support to conclusions made concerning stable, productive and successful family and work when assessing damages.
For further information
Please get in contact with Matthew Stockdale and Christina Kolovos.
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