Archbishop Peter a Comensoli v Stephen O'Connor

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0077

ARCHBISHOP PETER A COMENSOLI	Applicant
v
STEPHEN O’CONNOR	Respondent

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JUDGES:	BEACH, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2023
DATE OF JUDGMENT:	1 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 131
JUDGMENT APPEALED FROM:	[2022] VSC 313 (Keogh J)

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INSTITUTIONAL LIABILITY – Damages – Judge awarded damages for personal injury arising from historical sexual abuse, including general damages – Whether quantum of general damages manifestly excessive – Conclusion that effects of abuse life altering plainly open – Judge took into account all factors that had deleterious effect on respondent’s life – Judge entitled to draw comparison with respondent’s siblings – Destructive impact of child sexual abuse becoming better understood – General damages award not manifestly excessive.

INSTITUTIONAL LIABILITY – Damages – Judge awarded damages for personal injury arising from historical sexual abuse, including economic loss damages – Whether quantum of economic loss damages manifestly excessive – No mathematical error in judge’s approach – No error in rounding up estimated economic loss in expert’s evidence – Applicant failed to show 15 per cent discount out of proportion or produced erroneously generous result – Leave to appeal refused.

INSTITUTIONAL LIABILITY – Damages – Applicant sought leave to add ground of appeal that judge erred in not deducting amounts paid to respondent for disability support pension when calculating economic loss – Whether applicant abandoned issue at trial – Applicant should have pursued before judgment at trial – Not in interests of justice to permit applicant to raise point on appeal – Leave to amend refused.

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Counsel
Applicant:		Mr JT Rush KC and Ms GF Gray
Respondent:		Ms FM McLeod KC and Mr JRC Gordon
Solicitors
Applicant:	Wotton + Kearney
Respondent:	Rightside Legal

BEACH JA
NIALL JA
KAYE JA:

Following a trial, Keogh J gave judgment for the respondent and ordered that damages in the sum of $1,908,647 plus interest be paid by the applicant for personal injury arising from grave sexual assaults committed by a Catholic priest, Desmond Gannon (‘Gannon’) upon the respondent between 1968 and 1970. At the time of the first assault the respondent was a young boy of 11 years of age.
The damages comprised the following elements:
(a)general damages: $525,000
(b)future treatment expenses: $15,000
(c)economic loss damages: $1,500,000
From that amount, a deduction was made for a payment of $131,353 received by the respondent from the archdiocese pursuant to an internal church redress scheme titled the Melbourne Response.
The applicant, who assumed his office as Archbishop long after the events giving rise to the claim and had no personal involvement in them, accepted any liability of his predecessors in office. The judge found that the applicant was both directly and vicariously liable for the tortious wrongdoing of Gannon. The ability to sue the applicant was facilitated by the Legal Identity of Defendants (Organisational Child Abuse) Act2018.
In his application for leave to appeal, the applicant raises five proposed grounds of appeal. Grounds 1 to 4 concern the findings of liability (both direct and vicarious) made by the judge. Ground 5 concerns the assessment of damages. On the eve of the hearing of the application for leave to appeal, the applicant informed the Court and the respondent that he did not wish to present any argument on grounds 1 to 4. He did not seek leave to abandon those grounds. The distinction between failing to put any argument in support of a ground of appeal and its abandonment is, in the circumstances, illusory.
In the absence of any argument in favour of the grounds they cannot be upheld. We would refuse leave to appeal in respect of grounds 1 to 4. Thus, ground 5 is to be determined on the basis of the findings of liability made by the judge.
The applicant sought leave to amend ground 5 by adding paragraph (d). If granted leave to amend, the applicant seeks leave to appeal on the following amended ground:
The trial judge erred in his findings on quantum resulting in the award of a manifestly excessive sum:
(a)for general damages [Reasons 547] contrary to the evidence and in the absence of adequate reasons;
(b)for past economic loss [Reasons 547], such finding not reasonably based on the evidence;
(c)the overall sum awarded for loss of earning capacity [Reasons 547] by rounding the figure he had previously calculated upwards without providing any reason for such an increase; and
(d)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.

The facts

The respondent was born in 1957, the eldest of five siblings and was brought up in the Catholic faith, attending a number of Catholic primary schools, and for a short time, a Catholic secondary school.
Gannon was born in 1929, commenced training in Corpus Christi College Seminary, Werribee in 1949, and was ordained in St Patrick’s Cathedral in Melbourne in July 1956. He was appointed to the Kilmore parish as assistant priest in October 1968 where he remained until January 1971.
When he was a young boy, the respondent was abused on three separate occasions by Gannon between 1968 and 1970. The first assault occurred under the pretext of the respondent being taken for a drive with Gannon to pick up typewriters from Lancefield. It involved Gannon pulling over down a dirt road, fondling the respondent’s genitals, forcibly kissing the respondent, masturbating and making the respondent touch his penis. Gannon subsequently instructed the respondent to lie down while he penetrated the respondent anally with his penis, causing the respondent significant pain and shock. The second occasion occurred in Church when Gannon forcibly kissed the respondent, who was performing as an altar boy at the time. The third occasion occurred at a swimming pool in Assumption College, Kilmore — a school not affiliated with the Archdiocese, but where Gannon performed a role akin to a life guard.

The respondent’s evidence

The respondent’s father worked in the railways and the family moved frequently with the respondent attending a number of different primary schools when he was young. His parents separated when he was eight or nine and his mother took the children to live with her parents.
The respondent was a happy child, had many friends and was good at both sport and schoolwork. He was recruited to be an altar boy by the nuns at his primary school and respected religion and loved the church.
The judge set out the respondent’s evidence about the effects of the abuse suffered by him in some detail,[1] from which the following account is drawn.
[1]O’Connor v Comensoli [2022] VSC 313, [377]–[446] (‘Reasons’).
After the sexual assaults, the respondent said that he felt like he was dead. He could no longer concentrate at school and hid from Gannon who stalked him, trying to get him alone. The respondent felt scared and fearful, no longer interested in learning and his grades deteriorated and he became isolated.
When he was 12, the respondent rode his bike to a quarry, crawled out to a narrow ledge above a cliff and intended to jump off but could not. He left in tears and did not tell anyone about the incident.[2]
[2]Ibid [380].
After leaving primary school, the respondent went to Assumption College for a year, and was afraid he would see Gannon there. When he was 13 he moved to Broadford High School, felt different to the other boys, was a bit of an outcast and continued to avoid school with regular truancy. He said that he occasionally stayed with his uncle and aunt in Shepparton who told him that he could stay with them. He said that when he was 13 or 14 he left home at about midnight and hitchhiked to Shepparton where he stayed with his uncle and aunt who enrolled him in school at Shepparton.[3]
[3]Ibid [382].
He said that he started drinking when he was around 12, and that he drank because of the pain and to get Gannon out of his head. He said he drank until he could not drink anymore and that this pattern had continued to the present time.[4]
[4]Ibid [384].
After leaving school, the respondent said he fell into a pattern involving grossly excessive alcohol intake, many failed relationships with women, itinerant low skilled work, consuming alcohol at work and being disciplined or sacked, and committing offences under the influence of alcohol.[5]
[5]Ibid [386].
He said that he worked, first part time and then full time, at Woolworths. He then worked at Campbells Soups and would drink heavily on weekends. He worked as a farm hand on a dairy farm near Shepparton. He was arrested after taking a farm tractor without permission when we was drunk. He was arrested, charged with larceny of the tractor, exceeding 0.05 and unlicensed driving, and sentenced to probation for 12 months.[6]
[6]Ibid [388].
In March and July 1974 he was charged with stealing motor vehicles and unlicensed driving. He had a period of youth detention at Turana Youth Training Centre (‘Turana’) and was then sent to Morning Star Catholic Boys Home (‘Morning Star’) in Mt Eliza. In 1975 he was convicted of theft of a car, driving under the influence and dangerous driving. These charges related to an incident when the respondent stole a car after a football game to buy beer, was pursued by police and crashed into a police car. He was sentenced to 6 months’ imprisonment.[7]
[7]Ibid [392].
At age 17 he went to New Zealand and worked in itinerant jobs and had a relationship with a young woman. He returned to Australia in late 1976 and found out his girlfriend in New Zealand was pregnant. His girlfriend came to Australia, they married and had four children together. The marriage was later dissolved.
In January 1977, the respondent was again convicted of criminal offending as a result of a drunken fight at a party after his partner told him their relationship was over. From the mid-1970s to the 1990s the respondent worked in itinerant jobs and his life was blighted by alcohol abuse. His employment, relationships and health all suffered. Between 1995 and 2002 the respondent was treated at Goulburn Valley Hospital on numerous occasions following assaults.
In September 1993 the respondent was assaulted by a group of men and taken to hospital. He said the assault included being kicked in the base of his back, and this caused some back pain. In October 1995, the respondent was seen at the hospital emergency department complaining that he had been assaulted. Recorded observations refer to a wound to the right wrist and fifth finger, facial and knuckle abrasions and a complaint of back pain. The notes record the respondent had been drinking that night, and was intoxicated. The judge inferred from the notes that the injury to the finger was the main concern.[8]
[8]Ibid [409].
On 24 October 1995, the respondent’s treating GP, Dr Guymer, completed a sickness allowance medical certificate for social security purposes. Dr Guymer diagnosed the presenting problem as alcohol abuse and certified the respondent unfit for work. Under ‘prognosis’ Dr Guymer ticked boxes indicating the respondent would be able to work in three months, and that there were unlikely to be long-term limitations on his ability to work.[9]
[9]Ibid [410].
In November 1995, the respondent applied for a disability support pension. Dr Guymer diagnosed chronic alcohol abuse with a date of onset 25 years ago, lower back pain and left shoulder pain, noting that the respondent’s problems dated ‘from 13 years old’. He recorded that the ability to work was limited by ‘unreliable attendance, poor concentration, lower back pain.’ As to the reason why the respondent was unfit for wok Dr Guymer stated ‘Long term alcohol abuse. No partner to support patient. Isolated’.[10]
[10]Ibid [411]–[414].
In December 1995, an Australian government health service medical officer report was prepared by Dr Harder, who gave the following general assessment:
This 38 year old applicant has had an alcohol abuse problem for 25 years which has proved refractory to many attempts at rehabilitation. He has also suffered a number of injuries as a result of falls and assaults when intoxicated and these have left him with a painful left shoulder, deformed right fifth finger and mildly restrictive low back pain. His family relationships have been disrupted and he has not been able to hold down a job for many years.
Under the circumstances I do not believe this applicant employable in any category at this time, a circumstance which will continue for two years, at least, when a review would seem appropriate.[11]
[11]Ibid [415].
In October 2005, Dr Guymer completed a further report in which he recorded a diagnosis of chronic alcoholic dependence, and that the respondent was then drinking 24 standard drinks per day. He wrote: ‘Alcohol prevents him from getting job.’ Dr Guymer made no reference in that report to the respondent suffering a lower back condition.[12]
[12]Ibid [416].
The clinical notes of some of the respondent’s treaters were tendered. Dr Guymer’s records, from Wyndham House Clinic in Shepparton relate to attendances between 2001 and 2020. The notes record prescriptions of Celebrex for back pain in October 2005, August 2006, February 2007, March 2008 and July 2010. An entry on 7 October 2005 records: ‘Standard drinks on a day drinking alcohol: 24’ and ‘Days a week patient usually drinks alcohol: Every day’.[13]
[13]Ibid [417].
There are no clinical notes recording alcohol consumption or addressing alcohol abuse after 2005, other than one undated entry in which it is recorded: ‘Twelve drinks per day, one days per week.’ The judge was unable to put a date to this entry.[14]
[14]Ibid [420(d)].
In the late 1990s the respondent commenced a relationship with a woman named Bev and, at her encouragement, enjoyed a significant association with the performing of country music. The respondent was president of a local music club, ran monthly meetings and organised functions. He regularly performed and produced two CDs of his own and his songs were included on two compilation CDs. The respondent also worked as a volunteer radio presenter for five years.
In the late 2000s, the respondent’s voice deteriorated and he was diagnosed with a cancerous growth on his vocal chords. He underwent surgery in May 2011, and a course of radiation therapy at the Peter MacCallum Hospital about a month later.[15]
[15]Ibid [433].
The clinical records of Peter MacCallum contain a note from Southern Health indicating weekly consumption of 10 glasses of alcohol. In a letter to his GP in July 2011 the respondent’s radiation oncologist noted ‘He is an occasional binge drinker’. Clinical entries in the course of the respondent’s radiation therapy showed he was experiencing some issues with weight matters and oral intake, and had some reluctance to provide an accurate nutritional history.[16]
[16]Ibid [434].
The Goulburn Valley Health records from around this time include an entry in April 2011 that records ‘C2H5OH [ethanol] ++’. An entry in early June relating to alcohol records ‘Yes — weekly (24 binge)’. A pre-anaesthetic assessment in December 2012 recorded ‘ETOH socially’.[17]
[17]Ibid [435].
The judge recorded the respondent’s evidence about his alcohol consumption in the following paragraph:
[The Respondent] said he drinks whenever he can, as much as he can, to the extent he cannot move. If he had no money he would hock something in order to buy alcohol. He vomits regularly or passes out, and has nearly suffocated a few times. There were plenty of times where he had woken up not knowing where he was. Often he would wake up and he had wet himself and he has also soiled himself quite a few times. He does not want to stop drinking because it helps to suppress the pain. The only way he could deal with what Gannon had done was by drinking, which took some pressure off, so he drank and drank. He knows alcohol is slowly killing him, that it has lost him jobs and relationships, and got him into trouble with the police. But he said he cannot stop drinking because it is a crutch for him.[18]
[18]Ibid [438].
The judge noted that the respondent still has thoughts and nightmares about Gannon. He gets angry because of what Gannon did to him, and ‘just cannot make himself happy’. The judge referred to the respondent’s evidence that ‘What makes him happy is sitting on his verandah listening to music, playing with his dogs and having a drink. He said he mostly drinks alone.’[19]
[19]Ibid [443].
The respondent cares for his mother who lives independently nearby. He visits his mother four times a week, and rings her every day to make sure everything is okay. He takes her to the doctors and for any tests she needs. He does her garden, pruning the roses she loves. He does some housework and cooking for her. He keeps her place nice and clean. The respondent said he gets the carer’s pension.[20]
[20]Ibid [444].
The respondent has occasional contact with three of his children, is not in a relationship and feels lonely. He has a friend who will come around and help him clean his house, and his sister gives him a little bit of company. He can manage his daily chores of cleaning, cooking and shopping, and cutting the wood for his fireplace during winter. He is able to split wood as long as he does not overdo it. The respondent says he drinks until he falls asleep, but wakes a fair bit in the night. He does not feel motivated, keeps to himself, and does not trust a lot of people.[21]

Jennifer Hutchinson: the respondent’s sister

[21]Ibid [445]–[446].

Jennifer Hutchinson is the respondent’s younger sister. She is 18 months younger than him. She described the respondent as a very smart, loving boy. She could only remember one argument between her parents which involved yelling but she was not aware of any violence between her parents.[22]
[22]Ibid [447]–[449].
Ms Hutchinson said that alcohol abuse had stopped the respondent from achieving his potential. She said that the respondent had changed as a teenager, he was rebellious, drank a lot and was always in trouble. She said her brother was ‘always pinching cars’ and drinking. She recalled one incident, around 5 or 6 years before the trial in 2022, when the respondent had turned up at family Christmas ‘really drunk’ and fell off a chair, and was swearing. That incident caused a rift in the family. She described the respondent as the black sheep of the family and said he is not invited to family catch‑ups.[23]
[23]Ibid [452]–[454].
Ms Hutchinson said her brother was not the kind of person who would have a drink in the evening and go to work next day, but rather he would drink ‘for days, night and day, just drinking’. She said that the respondent’s siblings did not have problems with alcohol, mental health problems or run-ins with the law. One brother completed a painting apprenticeship, ran his own business until he was injured and lives with his wife of 35 years, in a house on a one acre property which they own. Another brother joined the navy, then became a jeweller, obtained qualifications and managed a number of stores. He lives with his wife of 32 years in a comfortable house which they own. Ms Hutchinson obtained qualifications in childcare and works at a private hospital in housekeeping duties part time and she looks after her grandchildren.[24]
[24]Ibid [456]–[458].
The judge described Ms Hutchinson as a very direct, clear and helpful witness. The judge contrasted her evidence about the respondent as a boy which he said was warm and affectionate with her more reserved evidence about the respondent as an adult for which there was a ‘coolness and distance’. The contrast was sufficiently stark for the judge to remark that it was as if she was talking about two different people, a feature that the judge regarded as ‘strikingly poignant’.[25]
[25]Ibid [459].

The medical evidence

At trial, the respondent relied on a medico legal report prepared by consultant psychiatrist, Dr Matthew Tagkalidis. In his report dated 5 May 2020, which followed a single consultation, Dr Tagkalidis set out a detailed history he had taken from the respondent.
Dr Tagkalidis recorded a history of some family dysfunction, noting the separation of the respondent’s parents, and the description of his father as ‘tough but fair’. Dr Tagkalidis concluded that that attribute gave rise to the potential for some physical abuse between the parents.
In the recorded history, the respondent had told Dr Tagkalidis that before the abuse he had been a ‘friendly, outgoing, just a normal kid full of life’, was liked at school and was good academically. Dr Tagkalidis recorded that after the incident, the respondent had left school, worked at Woolworths and was sent to Turana for stealing cars. He started drinking alcohol at 13 and smoking marijuana at 15.
The respondent told Dr Tagkalidis that during his teen years he was consistently depressed and angry, had a serious suicidal attempt in his early 20s and had a number of violent fights and altercations when drunk. One of those fights left the respondent with a back injury. Dr Tagkalidis records that the injury left the respondent ‘with long term lower back problems ever since (which later resulted in him receiving the Disability Support Pension)’.
Under the heading ‘Current Symptoms’ Dr Tagkalidis recorded that the respondent had ‘ongoing frustration’ from his back injury and that ‘[the respondent] said that the pain is constant, is exacerbated with exertion, and is typically 7/10 in intensity’.
Dr Tagkaldis concluded that the respondent was suffering from a chronic Dysthymic Disorder (Persistent Depressive Disorder), complex Post Traumatic Stress Disorder (‘PTSD’) with associated personality disruption and chronic Alcohol Abuse which was relevant to the abuse. Dr Tagkalidis noted that the respondent had major depressive episodes in his mid-20s but these had abated although the respondent remains vulnerable to future major depressive disorders given his ongoing underlying emotional vulnerabilities.
Dr Tagkalidis considered that the respondent had been ‘developing in a somewhat compromised manner in life’ prior to the relevant abuse incidents (due to family disruption) and that the injury from the abuse ‘caused a further very substantial and irretrievable detrimental effect on his development trajectory’ which resulted in major compromises of his functioning and emotional wellbeing.[26]
[26]Ibid [464].
Dr Tagkalidis attributed 90 per cent of his long term and ongoing emotional vulnerability to the abuse, and the remaining 10 per cent to the preceding family issues. In terms of the respondent’s current emotional distress, Dr Tagkalidis said that 60 per cent results from relevant abuse, 5 per cent results from preceding family issues and 25 per cent results from his chronic lower back pain. The remaining 10 per cent results from difficulties of isolation from his children.
Another psychiatrist, Dr Timothy Entwistle examined the respondent on behalf of the applicant and a report prepared by him dated 5 March 2021 was tendered in evidence. Having read the report of Dr Tagkalidis, Dr Entwistle agreed with the diagnoses of Dysthymic Disorder, complex PTSD and chronic Alcohol Abuse. Dr Entwistle noted that the respondent had not described a history of family dysfunction, and that he had had an ongoing relationship with both his parents.
Asked to apportion the various contributions to the respondent’s current presentation and psychiatric conditions, Dr Entwistle said that 65 per cent was attributed to the abuse; 10 per cent to time in Turana and Morning Star; 5 per cent for other periods of incarceration; 15 per cent for martial problems and isolation from his children; and 5 per cent for the back injury.
Dr Entwistle accepted that early instability in family life and consequent upheavals were likely to be significant issues that impacted on the respondent in some respects. Dr Entwistle considered that there were ‘cultural factors’ that were related to the respondent’s offending that did not necessarily link back to the abuse.[27] In that respect, Dr Entwistle referred to the relatively itinerant early life, frequent changing of schools, mixing with antisocial peers, subsequent offending and incarceration.

The respondent’s credit as a witness

[27]Ibid [479].

Before coming to his conclusions on damages, the judge addressed the applicant’s submission that, in some respects, the evidence of the respondent was untruthful, lacked reliability and exaggerated.
The applicant submitted to the judge that the respondent had given differing accounts about his consumption of marijuana. Dr Tagkalidis had recorded almost daily use from age 16 to early 50s. In evidence the respondent had said that he had only smoked marijuana about 10 times in his life and he did not like it. The judge rejected the applicant’s submission, noting that there was no reason for the respondent to hide smoking marijuana, it was not put to him that he had minimised his drug use because it would have hurt his case, and there was no history of drug use in the medical notes.[28]
[28]Ibid [492]–[493].
The second example considered by the judge related to the respondent’s history of back pain. The area of contest was whether the back pain had been the basis on which the respondent had been granted a disability pension and whether his account to Dr Tagkalidis that the back pain was 7/10 was on a scale where 10 was the least pain and 1 was the greatest pain.
There was some evidence that the disability pension was for a disability arising from chronic back pain that resulted from a fight. Dr Entwistle and Dr Tagkalidis each recorded that the pension was given due to an injury to the respondent’s back. The applicant submitted that if the pension was given for back injury this would have made the respondent’s claim for economic loss ‘problematic’ and that the respondent had sought to tailor his case accordingly.
The judge rejected that submission. The judge found that based on contemporaneous records of Dr Guymer and Dr Harder, chronic alcohol abuse was the most significant condition justifying the pension. He concluded that pension records, clinical notes and Dr Slesenger’s opinion support the respondent’s evidence that while his back injury has persisted since the assault, and it causes intermittent relatively mild symptoms, it would prevent him from performing heavy work. However, it would not preclude the respondent from working at all, and it otherwise causes little restriction.[29] The judge also concluded that the respondent had misunderstood Dr Tagklaidis’ scale believing that a lower number reflected more serous pain. Support for that conclusion was found in sections of Dr Tagklaidis’ report in which the respondent gives a score of 2–3 out of 10 for his current mood in a context in which he was reporting very significant symptoms indicating poor mood.[30]
[29]Ibid [498].
[30]Ibid.
The judge did accept that there was one established inconsistency in the applicant’s chronology given to Dr Entwistle. The judge said that this indicated the need for some care in trying to follow the evidence but it did not undermine his credit.[31] The judge concluded that having had the opportunity to observe the respondent give evidence at trial over four days, the inconsistency did not reflect adversely on the respondent’s credit or significantly affect his reliability as a witness.
[31]Ibid [503].
It is plain from his reasons that the judge accepted the respondent as a witness of truth.

Jones v Dunkel inference

At trial, and again in this Court, the applicant submitted that a Jones v Dunkel[32] inference should be drawn against the respondent on the basis of his failure to call his general practitioner to give evidence as to his current health and whether his alcohol addiction is currently causing any problems for him. As will appear, the applicant submits that there is a gap in the medical evidence from treating practitioners on these questions between 2005 and trial.
[32](1959) 101 CLR 298; [1959] HCA 8 (‘Jones v Dunkel’).
At trial the applicant submitted that the Court should infer that the treating doctors would not have supported that the respondent has been almost totally incapacitated by alcohol consumption for the last 20 years and his claim of continuing alcohol abuse. In light of this, the Court should more readily accept that the respondent continues to receive the disability pension because of his back injury.
The judge declined to draw that inference:
[The respondent’s] evidence in relation to his life as a child, and his alcohol abuse as an adult was corroborated by his sister. On a fair reading the contemporaneous clinic records support ongoing alcohol abuse. Any controversy as to the cause of [the respondent’s] incapacity for work is resolved by the contemporaneous records and the opinions of the medico-legal specialists making it unnecessary to call [the respondent’s] treating general practitioners. Further, even if an adverse inference were to be drawn, based on the evidence to which I have referred, my conclusion about these matters would not change.[33]
[33]Reasons, [531].

The judge’s conclusions

The judge accepted the respondent’s evidence, supported by Ms Hutchinson, that before the abuse the respondent was a happy child who related well to his close family, was socially engaged and was progressing normally at school.[34]
[34]Ibid [532].
The judge accepted the evidence of the psychiatrists that regularly moving houses, changing schools, and his parents’ separation may have led to a degree of emotional vulnerability. On the other hand, the judge accepted Ms Huthinson’s evidence that there was a happy and loving family life. The judge noted that there was no evidence that Ms Hutchinson or her other siblings had experienced any difficulty associated with or caused by their early family life. Accordingly, the judge concluded that there was no reason to suppose that, but for the abuse, the respondent’s response to his childhood would have differed to that of his siblings.[35]
[35]Ibid [533].
The judge described the first incident of abuse as ‘horrific’.[36] He accepted the respondent’s evidence that it had an immediate impact on the respondent through disturbance of family relationships and friendships, isolation, behavioural deterioration, disruption of education and use of alcohol. [37]
[36]Ibid [534].
[37]Ibid [536].
The judge accepted the evidence of both psychiatrists that the trajectory of the respondent’s life was determined by the abuse and its impact on him. He said the respondent’s life had descended into a life characterised by fractured relationships, antisocial behaviour and unhealthy peer group associations, which was caused by the abuse, and was not the result of any rational or voluntary choice he made. Again the judge contrasted the respondent’s situation with that of his siblings. The judge noted the contrast was ‘stark’, with his siblings enjoying stable, productive and successful family and work life, without experiencing alcohol abuse or antisocial behaviour.[38]
[38]Ibid [537].
The judge rejected an argument that he attributed to the applicant that the causal connection between the abuse, the injuries it caused, and the loss and damage suffered was broken as a result of his involvement with a heavy drinking peer group as an adolescent in Shepparton, and the choices he made in the following decade to engage in antisocial behaviour.[39] The judge did accept that the respondent was not entitled to damages for loss and damage arising directly or indirectly as a result of his guilt of a criminal offence.[40]
[39]Ibid [538(a)].
[40]Ibid [540], citing State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500.
The judge concluded that the damage caused by the abuse was immediate and ongoing, resulting in PTSD, chronic dysthymia with episodes of major depression, alcohol abuse and antisocial personality disorder and that these conditions were entrenched in early and mid-teenage years, before he became associated with an unhealthy peer group in Shepparton.[41]
[41]Ibid [539].
The judge did not accept the applicant’s submission that the respondent’s lower back injury was the cause of his incapacity for work from the mid-1990s, and the reason he was placed on the disability support pension.[42]
[42]Ibid [542].
The judge accepted that the respondent had enjoyed a healthy relationship with his partner Bev and gained enjoyment from performing country music and participating in two music clubs and a community radio station. However, his participation in country music, like most other activities in his life, was fuelled by alcohol.[43]
[43]Ibid [543].
Addressing the more recent extent of alcohol abuse, the judge rejected the applicant’s submission that the respondent’s alcohol intake reduced significantly after he began his relationship with Bev and became involved in country music. In 2005, Dr Guymer certified the respondent for the purposes of the pension on the basis he was incapacitated for work by alcohol addiction, and consumed 24 drinks per day. In 2008, psychologist David Jones diagnosed that the respondent suffered alcohol dependence and abuse.[44]
[44]Ibid [544].
The judge discounted a note in the clinical records of Peter MacCallum in 2011 recording a consumption of 10 glasses of alcohol weekly on the basis that at the time the respondent had throat cancer and impaired oral intake together with a noted reluctance to provide an accurate nutritional history. The judge also noted two of the Goulburn Valley Health notes from around that time indicate a significantly higher level of consumption, and that evidence supported a continued higher level of consumption including Ms Hutchinson’s evidence about the Christmas incident.[45]
[45]Ibid.
The judge concluded that the respondent had been forced to experience horrific assaults by Gannon. The judge found that the impact of the abuse had reshaped every aspect of his life in a dramatically destructive way and he would never be rid of the impact of being abused as a boy.[46]
[46]Ibid [547].

General damages

The parties’ submissions

The applicant submits that the award of $525,000 for general damages was manifestly excessive and, in itself, evidences a misapplication of principle. The applicant also makes a general submission that the judge’s reasons are inadequate and fail to explain how the judge arrived at the award and why it justified a much greater sum than comparable cases and failed to address evidence that was inconsistent with, or undermined the judge’s conclusion on the impact of the offending on the respondent’s life.
In addition to an overall submission that the amount awarded bespeaks error, the applicant relies on a number of specific complaints.
The applicant commences his submission by saying that the award is out of kilter with other comparable awards for general damages in sexual abuse cases.[47] The applicant submits that these cases reflect current general ideas of fairness and moderation and the award in this case is out of kilter with those decisions. The applicant seeks to bolster the argument by noting that the respondent had submitted at trial that an appropriate award of general damages was in the range of $400,000 to $450,000.[48]
[47]Lonergan v Trustees of the Sisters of Saint Joseph [2021] VSC 651 — $250,000; DP (a pseudonym) v Bird [2021] VSC 850 — $200,000; PCB v Geelong College [2021] VSC 633 — $300,000; Perez v Reynolds [2020] VSC 537 — $265,000; Waks v Cyprys [2020] VSC 44 — $200,000; Hand v Morris [2017] VSC 437 — $260,000; Erlich v Leifer [2015] VSC 499 — $300,000. Interstate: Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 — $400,000.
[48]The applicant had submitted a range of $200,000 to $250,000 was appropriate.
The applicant then points to a number of matters that the judge misunderstood or ignored. The applicant submits that the judge failed properly to take these matters into account.
The first of those matters relates to other factors, within the family dynamic, that affected the quality of the respondent’s early life. The respondent’s family moved home frequently as his father worked on the railways. The family moved five times in the first eight years of the respondent’s life, leading him to change schools a number of times. There was discord in the marriage and the respondent’s parents separated when he was nine or ten, leaving the family impoverished and living in a crowded three bedroom house in Kilmore with the respondent’s maternal grandparents, an aunt, the respondent’s mother and three siblings.
In this respect, the applicant relies on medical evidence referred to above to support a conclusion that his family upbringing made a contribution to the respondent’s long-term, ongoing emotional vulnerability. As already noted, Dr Tagkalidis made an allowance of 10 per cent for these factors. The applicant submits that the judge’s treatment of the respondent’s early family experiences and the psychiatric opinion based on the history of an unsettled early life was wrong. The applicant submits that the comparison with the respondent’s siblings was unreasonable given they have not been psychiatrically examined nor tested as to whether or not they were impacted by the family issues. The applicant submits that the judge should have taken the psychiatric evidence into account in the assessment of general damages and in respect of vicissitudes of life as relevant to past and future economic loss.
Next the applicant submits that the judge erred in his assessment of the respondent’s evidence about the circumstances in which he left home and concerning his early years in Shepparton. The applicant submits that the abuse could not be considered to be the sole reason for the respondent leaving school early and that there were other factors at play. The applicant refers to the respondent’s evidence that when he left school he was working five and a half days at a supermarket stacking shelves. The applicant also relies on Ms Hutchinson’s recollections that in addition to the respondent, three of his siblings left school in year 10. In relation to the respondent, she accepted that school ‘wasn’t for him’ and that he managed the job at the supermarket reasonably well.
The applicant also refers to the evidence of Frank Eyre, a retired policeman who was based in Shepparton at the relevant time. In his evidence, Mr Eyre said that the respondent was in a small group of young people who were regularly in trouble with the police and ‘in and out of the lockup’.
Finally, on this aspect, the applicant refers to the respondent’s written account that was prepared for the purposes of an application for victim of crime compensation entitled ‘36 years fucked up life’ in which the respondent refers to working at the supermarket and soup factory without much mention of being drunk.
The applicant submits that the judge failed to take this evidence into account, which was inconsistent with the respondent being blighted by alcohol abuse at that time or having an entrenched alcohol addiction.
The applicant submits that the abuse was not the sole cause of the respondent’s misfortune. He submits that the judge misunderstood the submission that there were a number of factors in addition to the abuse that were relevant by treating it, erroneously, as a submission that there was a break in causation between the abuse and the harm.[49]
[49]Reasons, [538]–[539].
The applicant submits that the evidence does not support the judge’s conclusion that the damage caused by the abuse was immediate and ongoing and that PTSD, chronic dysthymia with episodes of major depression, alcohol abuse and antisocial personality disorder were entrenched in the respondent’s early and mid-teenage years, before he became associated with an unhealthy peer group in Shepparton.[50]
[50]Ibid [539].

The third general area of complaint concerns the judge’s findings as to the respondent’s current use of alcohol and the involvement of his back injury in his current presentation.
The applicant refers to the 1995 medical reports prepared by Dr Guymer and Dr Harder and accepts that, at that time, the respondent had an alcohol addiction which was impacting greatly on him in many respects. The applicant also notes that in a medical report prepared in October 2005, Dr Guymer records under ‘history’:
started drinking when 13
now drinking (approximately) 25 standard drinks/day
The applicant submits that this is the last report in evidence that shows that the respondent was unable to work due to alcohol addiction. He notes that there is no report from any treating practitioner as to whether there is a continuing impact on the respondent as a result of alcohol abuse. The applicant notes that the medical records after 2005 did not show problems related to alcohol abuse. He submits that to the extent there is a reference to alcohol it shows a marked reduction in consumption. In that respect he notes the Peter MacCullum records which record 10 glasses of alcohol per week, and a refence from his general practitioner in 2011 to the respondent being ‘an occasional binge drinker’. He submits that this corresponds with the respondent being in a happier relationship with Bev and being occupied with country music which he enjoyed, and looking after his mother.
The applicant submits that the judge did not take this evidence, and lack of evidence, into account in assessing the impact of alcohol abuse on the respondent and that based on that evidence the respondent was not then suffering from the effects of chronic alcoholism.
The applicant seeks to bolster his argument on this topic by contending that a Jones v Dunkel inference should have been drawn by the judge because of the respondent’s failure to call his general practitioner.
In response, the respondent submits that the applicant’s acknowledgement that the abuse had ‘a long-term effect on [the respondent’s] life’ is an ‘artful understatement’. The respondent relies on the many consequences of the abuse on the respondent’s life and submits that ‘the abuse itself was also particularly horrifying’.
The respondent submits that the judge carefully explained and set out his reasons for reaching the conclusion he did on general damages, and there is no suggestion the judge applied the wrong principles.
Given the horrific circumstances and ongoing consequences of the abuse, the respondent submits it is appropriate and acceptable that the award is high. The respondent submits that by comparison with the statutory maxima and awards for other losses the award can by no means be called excessive or beyond the realm of a proper exercise of discretion. The respondent submits that this case is ‘clearly one of the worst cases of this type to have come before the courts’ and was deserving of a substantial award.

Analysis and Conclusions

The principles that this Court must apply in considering whether an award of general damages is manifestly excessive are well established.
In Wilson v Peisley Mason J said:
an appellate court will not disturb a primary judge’s award of damages for personal injury unless it is convinced that [the judge] has acted on a wrong principle of law or that [the judge] has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.[51]
[51](1975) 50 ALJR 207, 214.
In Planet Fisheries Pty Ltd v La Rosa the High Court said:
It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. We cannot think that the passage cited from Chulcough v Holley[52] should be understood as expressing a contrary view. The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.[53]
[52](1968) 41 ALJR 336, 338 (Windeyer J).
[53](1968) 119 CLR 118, 125 (Barwick CJ, Kitto and Menzies JJ); [1968] HCA 62 (citations in original).
There are a number of points that may be derived from that brief passage. First, damages must be proportionate but, if it is to succeed, the ground that an award is manifestly excessive must reach the point of being ‘grossly disproportionate’. The purpose of the qualifier ‘grossly’ is to recognise that the prime responsibility for the assessment of damages lies with the trial court and an appellate court should not lightly interfere with that judgment, in circumstances where there is no precise measure and the nature of the task is to put in money terms, impacts that are not readily translated into dollars and cents.
The second point that emerges is that other cases do not provide set points of reference. Other cases are not entirely irrelevant, and there remains some utility in looking generally at past cases as a guide by which an appellate court can assess the reasonableness of an award.[54]
[54]Geelong Leather Pty Ltd v Delaney [2014] VSCA 98, [59] (Beach JA, with whom Maxwell P and Kyrou AJA agreed).
No doubt conscious of the hurdle which he must surmount in arguing that the award of general damages was manifestly excessive the applicant relies on the matters already described: disconformity with awards in other cases; the failure to take into account other causes of misfortune including family dysfunction and antisocial peers; overstating the effects of alcohol addiction by ignoring the circumstances in which the applicant functioned shortly after he left school; and the absence of recent medical evidence relating to alcohol addiction.
In our opinion, although the award of $525,000 for general damages may be said to be high it has not been demonstrated that it is manifestly excessive nor do any of the matters relied on constitute a specific error or otherwise vitiate the award.
The applicant accepts that the abuse was horrific, the effect of it ‘profound’, and the impact ‘lifelong’. 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 judge found: ‘the impact of the abuse reshaped every aspect of his life in a dramatically destructive way’,[55] and the ‘trajectory’ of his life was determined by the abuse and its impact on him.[56]
[55]Reasons, [547].
[56]Ibid [537].
The evidence accepted by the judge painted a stark picture of fractured relationships, antisocial behaviour and unhealthy peer associations. The judge found that had the abuse not occurred, the respondent might have left school at the age that he did, but his experience of school would ‘almost certainly have been more positive and productive, leaving him better equipped to transition to the workforce and progress his career’.[57]
[57]Ibid [556].
The task of contemplating the life which the respondent would have enjoyed if the abuse had not occurred is obviously extremely difficult as the respondent had not established a settled pattern of life before he was abused. It was plainly open to the judge to conclude that the effects of the abuse were life altering.
The judge was entitled to accept the respondent’s evidence and from it discern a clear pattern, emerging at a very early age, of alcohol abuse, itinerant work and an unstable and isolated life. The applicant’s attack at trial on the credibility of the respondent failed and we proceed on the basis that the judge accepted his evidence as credible and reliable.[58] In assessing the evidence, the judge heard and saw the witnesses and enjoyed an important advantage over this Court in assessing their evidence and in forming a judgment about the impact that the sexual abuse had on the respondent.
[58]Ibid [488]–[503].
In addition to the evidence of the respondent, Ms Hutchinson said that the respondent had changed as a teenager, that he was rebellious, ‘drank a lot’ and was always in trouble. Mr Eyre said that the respondent was regularly in trouble with the police and that ‘it was nearly always caused through the excess (sic) use of alcohol’. Although it was dependent on the respondent’s history, in reports completed in 1995 Dr Guymer said that the respondent had problems with alcohol since he was 13 years old. Those reports related to an application for a disability pension which was not dependent on any allegation of abuse. There was no reason for the respondent to say that alcohol became a problem when he was 13 if it were not true.
The applicant’s argument, that the respondent was able to function when he worked full time at the supermarket and therefore he could not have been suffering from entrenched alcohol problems at that time, is unconvincing. The respondent’s alcohol abuse was progressive and the evidence of the respondent, his sister, and Mr Eyre, and the fact that the respondent was only able to hold down jobs for relatively short periods, all support the judge’s finding. Alcohol abuse was unlikely to manifest itself as an acute illness from the beginning, yet there were plainly enough signs to show that the respondent was, from his early teens, well onto a path of alcohol abuse that undoubtedly blighted his life. The description ‘entrenched’ was not inapt.
A central theme of the applicant’s submissions was that there were other factors, apart from the abuse, that had a deleterious effect on the respondent’s life. In particular the applicant relied on stressors in the family and peer group pressure.
As the applicant accepted, the argument is not about causation, in the sense that there is no attack on the judge’s finding that the abuse caused the respondent’s injury. Rather, the applicant submits that where there are multiple causes of the injury or condition, the assessment of general damages should take that into account and only compensate the respondent for the extent of the harm that is caused by the tortious conduct.
That general principle may be accepted. However, it does not admit of any mathematical exercise. Here, the judge took into account all of the relevant factors. For example, we do not accept the applicant’s submission that the judge ignored the evidence of Dr Tagkalidis that 10 per cent of the respondent’s ‘long-term and ongoing emotional vulnerability’ arises from ‘family issues’.[59] The judge referred to that evidence. The judge accepted the evidence of Ms Hutchinson that she experienced a happy and loving environment as a child which undermined at least to some extent the factual premise of Dr Tagkalidis’ opinion.
[59]Ibid [464].
The judge was also entitled to draw comparisons with the lives of the respondent’s siblings. Although he did not have a full picture of their lives and recognised that 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 nature and extent of the respondent’s alcohol addiction as at the date of trial was a relevant matter for the judge to consider. On that topic, the applicant pointed to the absence of recent medical records showing the effects of alcohol abuse; the failure to call his general practitioner; and the evidence that showed a higher level of functioning including his involvement with country music and in looking after his mother.
Notwithstanding these matters, there was sufficient evidence to support the judge’s finding, that the respondent continues to suffer from alcohol abuse, was supported by the evidence. The respondent remains socially isolated and continues to suffer the effects of a life of alcohol abuse which is a consequence of the abuse he suffered as a young child.
The judge’s treatment of Jones v Dunkel did not involve any error. The applicant accepts that the respondent’s life was badly affected by alcohol abuse. It was not necessary for the respondent to call medical evidence from his GP to prove a medical diagnosis in order to establish that the respondent continued to suffer the effects of alcohol abuse. The premise of the submission is that if the respondent continued to suffer from the effects of alcohol abuse he would have sought medical assistance. That premise is not self-evident. The evidence would, in any event, be dependent on the history given by the respondent. Given that the judge accepted the respondent’s account and the evidence of Ms Hutchinson, it must be doubted that the medical evidence of a GP would have added much if anything. The failure to call the GP did not mean that the judge was unable to accept the respondent’s evidence or that it was somehow suspect.
Finally, the applicant’s reliance on awards in other cases does not establish error. The applicant points to a relatively small cohort of cases in which general damages have been assessed at between $250,000 to $300,000 in the context of sexual abuse cases. Each award will be a product of its own facts. Reference to these cases may legitimately show that the award in this case is relatively high, but the number of so called comparator cases is small, and the destructive impact of child sexual abuse is becoming better understood.

Economic loss

The applicant makes three points in relation to the economic loss component:
(a)first, he attributes a calculation error on the part of the judge in respect of past economic loss;
(b)second, the applicant submits that the judge was wrong to round up the damages for loss of earning capacity; and
(c)third, he submits the judge was wrong not to deduct an amount corresponding to payments received by the respondent.
The judge’s conclusion on economic loss was as follows:
Thompson’s assessment and these findings lead to the following calculation of loss of earning capacity damages:
Past loss from 1 January 1982 to date, reduced by 15% $1,343,698
Future economic loss, reduced by 20% $151,708
Total $1,495,406
On this basis, I award [the respondent] $1,500,000 for loss of earning capacity damages.[60]
[60]Ibid [576].
The first two complaints relate to the judge’s calculation of economic loss. At trial, the respondent relied on a report from Chartered Accountant Mark Thompson. Mr Thompson calculated past economic loss on the assumption that, but for the abuse, the respondent would have earned average weekly wages and he calculated past economic loss on that basis.
Taking the figures from the time the respondent left school (in the 1973/74 financial year) until 1 March 2022, Mr Thompson calculated a past economic loss of $1,602,702 (which included a figure of $129,275 for lost superannuation). From that figure the judge made two adjustments.
First, for part of the period between leaving school and 31 December 1981 the respondent was incarcerated. Unless an adjustment were made the respondent would have received an amount of past economic loss for the period when he was in gaol. To avoid that result, the judge concluded that he would award no damages for loss of earning capacity for the period of time between when he left school and 31 December 1981. The net loss calculated by Mr Thomson for this period was $21,880, which was deducted from the figure of $1,602,702 to arrive at the figure of $1,580,822. The figure of $21,880 comprised some years in respect of which there was a loss and three years in respect of which the respondent earned money in an amount calculated by Mr Thompson. Although this latter figure does not appear in the reasons it is easily calculated from the figure ultimately arrived at.
Second, the judge reduced the loss by 15 per cent to take into account the usual vicissitudes as well as a degree of uncertainty about the assessment of loss of earning capacity. Applying 15 per cent, the judge arrived at a figure of $1,343,698 for past economic loss.
Contrary to the submission of the applicant there was no miscalculation by the judge. The applicant submits that the judge should have reduced the loss by taking into account actual earnings from 1 July 1973 to 31 December 1975.[61] The judge said that he would ignore economic loss and earnings before 31 December 1981. That course was sensible given the period of incarceration. There was no mathematical error in the judge’s application of that approach.
[61]During this period, the respondent earned $1,977, $1,359 and $1,385 in circumstances in which Mr Thompson calculated nil earnings.
The second error contended for by the applicant concerns the rounding up to $1,500,000. This criticism is without merit. The evidence of Mr Thompson was a means of proving the respondent’s loss of earning capacity. There is inevitably a degree of judgment and evaluation in assessing a loss of earning capacity. The evidence of Mr Thompson informed that matter but should not be taken to be a precise quantification. It was based on stated assumptions, which serve to provide a fair measure of the loss. In the circumstances there was no error in rounding the amount up. The rounding up did not call for any further explanation by the judge.
Finally, we note that in his written case, the applicant also complained about the discount figure of 15 per cent in respect of past economic loss. The respondent submits the 15 per cent discount is a considered position and there is no evidence to support a submission that the exercise of the discretion was clearly erroneous. There is no fixed figure and the applicant has failed to show that the figure chosen by the judge was out of proportion or produced an erroneously generous result.

Leave to amend: deduction for disability support payments

From around 1995, the respondent was in receipt of a disability support pension. As foreshadowed, the applicant seeks leave to add a ground of appeal to contend that the judge erred in not deducting the amounts paid to the respondent for a disability support pension when calculating economic loss. The respondent objects to the grant of leave to amend because the applicant did not run the point at trial and should not be permitted to argue the ground for the first time on appeal.
The respondent’s submissions must be accepted. Leave to amend should be refused.
The fact that the respondent was in receipt of a disability pension was raised during the trial. A bundle of Centrelink records, which, amongst other things, proved payments to the respondent for a disability pension were in evidence. In part the applicant relied on Centrelink records in support of his argument that the respondent’s back injury was a significant matter in assessing both general and special damages.
In the course of final addresses, Senior Counsel for the applicant raised with the judge the possibility that if an award of damages was made in respect of a period in which the plaintiff is in receipt of a pension, the ‘compensation payer’ may have to make a payment to the Commonwealth so as to enable the Commonwealth to recoup some or all of the pension amount. Against that contingency, Senior Counsel raised the possibility that there should be a stay of an amount, estimated by the applicant to be $369,929, to cover that potential liability so that in the event the Commonwealth seeks recovery, the applicant could pay the Commonwealth directly.

Directly asked by the judge whether the applicant was seeking to have damages reduced because of the pension payments, the following exchange occurred:
HIS HONOUR: Yes. Mr Rush, what does that mean in respect of the written submission that - - -
MR RUSH: Your Honour, we don’t rely on the written submission.
HIS HONOUR: So you don’t rely on the written submission that the amount of damages for loss of earning capacity should be reduced by an amount of - by some amount of pension paid between 1995 and the present?
MR RUSH: No, Your Honour, we, as I’ve attempted hopefully to explain, we would say that that is a matter to be taken into account and the mechanism to be approached for it could be taken into account after Your Honour’s judgment.
HIS HONOUR: Yes, I see. Thank you.
MR RUSH: There is that letter, Your Honour.
We were informed that the reference to the submission was a reference to correspondence by the applicant’s solicitor dealing with the issue. The letter was not provided to this Court.
We note that shortly before that exchange there was a discussion between the judge and Senior Counsel for the applicant about deducting an amount of $139,353 which was paid to the respondent under the ‘Melbourne Response’ in two instalments. The applicant had successfully argued that this amount should be deducted from any award.
Judgment was reserved.
On 9 June 2022, the judge published his reasons for decision. An order giving judgment for the respondent was made on 10 June 2022. The parties were given an opportunity to address on the form of order including interest and costs.
It was proposed that parties appear before the judge for the making of final orders on 19 July 2022.
At 3:05 pm on 18 July 2022, the respondent’s solicitor provided a minute of proposed order containing an order for damages in the amount specified by the judge in his reasons and interest in the sum of $359,293.
At 5:42 pm on 19 July 2022, the associate to the judge sent an email to the parties stating that:
His Honour understands that the parties expect to receive formal notification from the Department of Social Services imminently. In the circumstances, rather than making separate orders his Honour will make an order tomorrow.
The parties should provide an agreed daily interest rate to Chambers to incorporate into the orders.
At 10:36 am on 20 July 2022, the judge’s associate was informed that the repayment figure to the Commonwealth had been assessed at nil. That is, the Commonwealth was not seeking any payment from the applicant to recoup pension payments made to the respondent.
It is clear that by 20 July 2022 there was no prospect that the applicant would be required to make a payment to the Commonwealth and that the Commonwealth would not seek to recoup any money. The concern the applicant raised with the judge during argument that he should not pay over damages until any potential liability to the Commonwealth had been accounted for had evaporated.
It is plain from the course of events that:
(a)the judge directly raised with the applicant whether he contended that damages should be reduced on account of pension receipts;
(b)the applicant did not seek that damages be reduced but specifically disavowed any such argument; and
(c)more than a month passed between judgment being delivered and final orders, during which the issue of the pension payments was specifically raised and considered but the applicant made no attempt to argue that damages should be reduced on this basis.
In a short written submission filed on the eve of the hearing in support of the application to amend the application for leave to appeal to raise this ground, the applicant submitted that the issue was not abandoned but had been ‘put off’ until judgment but that inadvertently it was not raised with the judge when there was argument on 19 July about the final orders. On that occasion it was said argument focused on interest and costs. The applicant argues that the point does not depend on questions of fact and should be considered by this Court.
We do not accept that submission. The question whether damages should be reduced on account of pension receipts was not ‘put off’. It was abandoned by the applicant. What was reserved was whether a part of the award (after it had been made) should be quarantined to meet any potential liability of the applicant towards the Commonwealth. That issue could logically be addressed after the damages were assessed as it related to how the damages would be disbursed. On the other hand, there would have been no mechanism for the judge to reduce the award on account of pension receipts after he had made an order.
If the applicant wished to pursue the matter he had the opportunity to do so before judgment. He had the opportunity to do so both at the hearing and in the interval between delivery of reasons and the making of final orders.
Having not taken the opportunity available at trial, it is not in the interests of justice to permit the applicant to raise the point on appeal.[62] The purpose of an appeal is primarily the correction of error and the distinction between a first instance hearing and an appeal remains important. In the circumstances that happened there was no error in the judge not deducting an amount referable to the pension received by the respondent. In the absence of error, the interests of justice do not require this Court to intervene.
[62]Metwally v University of Wollongong (1985) 60 ALR 68, 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1985] HCA 28; Coulton v Holcombe (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33; Setka v Abbott [2013] VSCA 345.
In these circumstances the applicant should not be permitted to run the point for the first time in this Court and leave to amend is refused.

Conclusion

The application for leave to appeal is refused.
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[2023] VSCA 131

1 June 2023