Archbishop Peter a Comensoli v Stephen O'Connor - [2023] VSCA 131

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

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 131
Decision Date: 1 June 2023

CaseChat Overview and Summary

The case before the court involved a dispute between Archbishop Peter a Comensoli and Stephen O'Connor. The central issue was the quantum of damages awarded by the trial judge for personal injury resulting from historical sexual abuse. The appeal to the court centred on whether the general and economic loss damages awarded were manifestly excessive. The High Court was tasked with determining the correctness of the trial judge’s assessment of these damages.

The court examined whether the general damages awarded were manifestly excessive, considering the life-altering effects of the abuse on the respondent. The court held that the trial judge was entitled to consider all factors contributing to the respondent's life difficulties and could appropriately compare the impact of the abuse on the respondent with that on his siblings. Given the growing understanding of the destructive impact of child sexual abuse, the court concluded that the award was not manifestly excessive. Regarding the economic loss damages, the court found no mathematical error in the trial judge’s approach and upheld the rounding up of the expert’s evidence on economic loss. The court also rejected the applicant's argument that a 15% discount was out of proportion or led to an erroneously generous result. Consequently, the court refused the leave to appeal on the grounds of the quantum of damages.

The court further addressed the applicant's attempt to introduce a new ground of appeal regarding the failure to deduct disability support pension payments when calculating economic loss. The court determined that this issue had been abandoned at trial and that it was not in the interests of justice to allow the applicant to raise it on appeal. As a result, the court also refused the leave to amend the grounds of appeal.

Orders