Bishop of Wagga Wagga v TJ (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0008

THE BISHOP OF THE ROMAN CATHOLIC DIOCESE OF WAGGA WAGGA, MARK EDWARDS	Applicant
v
TJ (A PSEUDONYM)	Respondent

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JUDGES:	BEACH, ORR JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2024
DATE OF JUDGMENT:	8 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 262
JUDGMENT APPEALED FROM:	[TJ (a pseudonym)] v The Bishop of the Roman Catholic Diocese of Wagga Wagga, Mark Edwards (Supreme Court of Victoria, O’Meara J, 24 October 2023 – 17 November 2023)

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TORT – Damages – Psychiatric injury caused by historical sexual abuse – Jury verdict – Pain and suffering damages – Economic loss – Exemplary damages – Whether jury verdicts manifestly excessive – Whether verdicts open – Whether verdicts open on evidence most favourable to respondent/plaintiff.

DAMAGES – Pain and suffering damages – Pain and suffering damages assessed by jury at $1.1 million – Whether assessment open on evidence most favourable to plaintiff – Verdict not open – Whether appellate court should reassess pain and suffering damages – Reassessment of pain and suffering damages in sum of $550,000.

DAMAGES – Economic loss – Economic loss assessed by jury at $965,000 – Whether assessment open on evidence most favourable to plaintiff – Verdict open on evidence – No basis for setting aside jury’s verdict on economic loss.

DAMAGES – Exemplary damages – Whether evidence of previous complaint justified award of exemplary damages – Whether initial failure to admit abuse justified award of exemplary damages – Whether initial pleadings were improper or unjustifiable – No basis for exemplary damages proved by plaintiff – Jury’s award of exemplary damages set aside.

Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221; Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308; Backwell v AAA [1997] 1 VR 182; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Coyne v Citizen Finance Ltd (1991) 172 CLR 211; David Syme & Co Ltd v Mather [1977] VR 516; Gray v Motor Accident Commission (1998) 196 CLR 1; Lamb v Cotogno (1987) 164 CLR 1; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Swain v Waverly Municipal Council (2005) 220 CLR 517; Triggell v Pheeney (1951) 82 CLR 497; Tzouvelis v Victorian Railways Commissioners [1968] VR 112; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, referred to.

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Counsel
Applicant:		Ms RN Annesley KC with Mr CT Morshead
Respondent:		Mr JP Brett KC with Mr D Seeman
Solicitors
Applicant:	Wotton + Kearney
Respondent:	Arnold Thomas & Becker Lawyers

BEACH JA
ORR JA
J FORREST AJA:

Between 1972 and 1976, TJ[1] (‘the plaintiff’), a teenage boy, was groomed and sexually abused at various locations by Father Vincent Kiss. The abuse occurred during a period when the plaintiff was a member of the Young Christian Students organisation (the ‘YCS’), run by the Roman Catholic Diocese of Wagga Wagga. During this period, Kiss was an ordained priest in the Diocese, who was involved with the YCS.
[1]A pseudonym.
In 2022, the plaintiff commenced a claim for damages in respect of the abuse perpetrated on him by Kiss. In that proceeding, he claimed damages in respect of injuries which were described as Complex Post-Traumatic Stress Disorder and depression. Subsequently, the plaintiff amended his statement of claim to include specific claims for aggravated damages and exemplary damages.
The defendant against whom the proceeding was taken was the Bishop of Wagga Wagga, Mark Edwards. Bishop Edwards was nominated as the proper defendant pursuant to ss 6K(1), 6M and 6O of the Civil Liability Act 2002 (NSW). In his defence, the defendant, who assumed his office as Bishop long after the events giving rise to the plaintiff’s claim, and who had no personal involvement in those events, accepted any liability of his predecessors in office.
The proceeding was tried by a judge (O’Meara J) and jury of six over 11 days in October and November 2023. At trial, the defendant admitted that the plaintiff had been groomed and sexually abused by Kiss between 1972 and 7 August 1976; admitted that the abuse of the plaintiff was caused by the negligence of the defendant; admitted that the defendant was vicariously liable for the actions of Kiss; and admitted that ‘in or about 1968 Paul Ryan disclosed that he was abused by Father Kiss to Father Bernie Connell’ (the ‘1968 complaint’). The defendant, however, denied that any Bishops of the Diocese knew or ought to have known of the 1968 complaint during or prior to the abuse of the plaintiff; and denied that the plaintiff was entitled to exemplary and/or aggravated damages.
On 10 November 2023, the jury rendered its verdict by giving the following answers to the following questions:
1.In what sum do you assess pain and suffering damages?    $1.1 million
2.In what sum, if any, do you assess damages for economic loss:
(a)Past:  $ 896,000
(b)Future:  $ 69,000
3.Having regard to the conduct of the defendant, is the

plaintiff entitled to an award of exemplary damages?      Yes
4.If ‘Yes’ to question 3, in what sum do you assess

exemplary damages?  $1.3 million
On 30 November 2023, after rejecting an application by the defendant to set aside the jury’s award of exemplary damages,[2] the judge entered judgment in favour of the plaintiff in the amount of $4,136,478,[3] and ordered the defendant to pay the plaintiff’s costs of the proceeding.
[2]TJ (a pseudonym) v The Bishop of the Roman Catholic Diocese of Wagga Wagga [2023] VSC 704 (‘Ruling’).
[3]The judgment sum comprised the amounts assessed by the jury plus amounts for interest and past and future medical and like expenses, less an amount previously paid to the plaintiff.
The defendant now seeks leave to appeal (and, if leave is granted, to appeal) from the judge’s orders on the following proposed grounds of appeal:
1.The trial judge erred in permitting the issue of exemplary damages to be determined by the jury and further erred in not setting aside the jury’s verdict in respect of exemplary damages.
2(a)The verdict of the jury on the claim for pain and suffering damages was manifestly excessive and against the weight of the evidence.
(b)The verdict of the jury on the claim for damages for past and future economic loss was manifestly excessive, and contrary to the evidence and the weight of the evidence.
(c)Alternatively to Ground 1, the verdict of the jury on the claim for exemplary damages was manifestly excessive, and contrary to the evidence and the weight of the evidence.
3.Alternatively to Ground 2(b), the verdict of the jury on the claim for economic loss damages was not reasonably open on the evidence.
4.The jury erred by failing to follow the directions of the trial judge on the issue of exemplary damages.
5.…
6.The trial judge erred in failing to direct the jury that when considering whether and how much to award in exemplary damages, the jury was only to consider such an award in the context of the relevant Defendant, being Bishop Edwards and the Diocese of Wagga Wagga which he represented, as distinct from the Catholic Church more broadly.
7.The trial judge erred in failing to direct the jury as to the relevant rules and principles which govern legal pleadings in Victoria.[4]
[4]During the course of argument, the defendant was granted leave to amend proposed ground 1 by deleting ‘and/or aggravated damages’ from the words ‘The trial judge erred in permitting the issue of aggravated and/or exemplary damages to be determined by the jury’, and leave to abandon proposed ground 5.
In his application for leave to appeal, the defendant seeks to have the judgment below set aside, and for this Court to exercise its power to reassess damages pursuant to s 14 of the Supreme Court Act 1986. In combination, the defendant’s proposed grounds of appeal seek to set aside the jury’s award of:
(a)pain and suffering damages on the ground that it was manifestly excessive (proposed ground 2(a));
(b)damages for economic loss on the ground that it was manifestly excessive and/or not reasonably open on the evidence (proposed grounds 2(b) and 3); and
(c)exemplary damages on a number of grounds, including that it was not open for the jury to make any award of exemplary damages against the defendant (proposed grounds 1, 2(c), 4, 6 and 7).

Some brief background

The plaintiff was born in Wagga Wagga in 1958. He was one of six children. He has a sister who had worked as a secretary; another sister who worked as a nurse; a brother who was a teacher, and who later became a principal in the Catholic school system; a brother who had worked in various jobs, most recently performing architectural work; and another brother who worked as an electrician. He went to the local Catholic primary school, before attending a regional high school followed by a Catholic co-educational high school.
In his evidence, the plaintiff described himself as ‘committed to the Catholic faith’. He was an altar boy, being one of the head altar boys by the time he was in Year 8/9. He joined the YCS, where he came into contact with Kiss. He knew of Kiss before he joined the YCS because he (the plaintiff) used to serve at some of Kiss’s masses.
In 1973, when the plaintiff was 14, he went on a trip to Sydney with Kiss. Kiss plied him with alcohol, and they shared a bed in a hotel room. Kiss sexually abused the plaintiff by performing oral sex on him and putting the plaintiff’s hand on Kiss’s penis. In evidence, the plaintiff said that this was his ‘first sexual encounter’.
Kiss’s sexual abuse of the plaintiff went on for two and a half years. It involved Kiss performing oral sex on the plaintiff, and ‘lots of masturbation’. At trial, the defendant emphasised that the abuse did not involve any sexual penetration of the plaintiff by Kiss. The defendant also emphasised the plaintiff’s evidence that, at the time of the abuse, ‘I was even enjoying some of the sexual experiences’.
The plaintiff gave evidence that he did not get sufficient marks to get into a tertiary course, and so, after secondary school, he enrolled in a Catholic teaching college. He met his wife at about this time. At the time of trial, they had been married for some 37 years, and had three children. He completed his teacher training in 1980. His evidence was that this qualified him to teach in the Catholic school system, but not in the government school system. He subsequently worked as a teacher in the Catholic school system.
In 1994, the plaintiff reported the abuse by Kiss to police. Subsequently, Kiss pleaded guilty to 10 charges of indecent assault on a male and three charges of buggery, including charges relating to the plaintiff. On 13 September 2002, Kiss was sentenced to 10 years and 6 months’ imprisonment.
During the 1990s, the plaintiff started seeing counsellors. He thought he saw three of them on five to 10 occasions. It helped him to talk about the abuse. At the time, he was not communicating; his marriage was ‘pretty shaky’; and his children were beginning to become frightened of him because he was becoming aggressive in nature, although not physically violent towards anybody.
Throughout this period, the plaintiff continued to teach. His employer asked him to become a year coordinator. His plan was eventually to be able to run his own school. In evidence, he said, ‘I wanted my own school’.
The plaintiff was appointed by his employer as a religious education coordinator. In evidence, he said that this happened in 1999, and that it put him on the path towards a principal’s job. He was a religious education coordinator as a step towards that role. The plaintiff’s case was that, but for Kiss’s abuse, he would have become a deputy principal, and later, a principal.
At the start of 2003, the plaintiff took leave from his job: Kiss had been convicted in 2002; there was much publicity about that; and he suffered flashbacks, sleepless nights and anxiety. He described himself as ‘a mess’. He and his family moved to the UK. The plaintiff applied for and obtained a job teaching at a school in the UK, where he worked until the middle of 2004, before returning to Australia and his former employment for approximately six months.
In early 2005, the plaintiff and his wife returned to the UK, and the plaintiff recommenced teaching at the school where he had previously worked. He continued teaching there until 2011. He then left that employment and then set up a tuition centre in the UK. This business provided out of hours tuition for students on a one-on-one basis. COVID had an adverse effect on this business. Ultimately, the plaintiff returned to Australia in January 2022. At the time of trial, the business (owned 50/50 by the plaintiff and his wife) was still being operated by a manager in the UK. They had tried, unsuccessfully, to sell it.
The plaintiff gave evidence that the counselling he had in Australia in the 1990s was essentially of no help to him, although he said that it was good to talk about the abuse. The plaintiff also had counselling in the UK. He has not worked since returning from the UK in 2022. He gave evidence that, but for his abuse he would have worked to retirement age (67) in the Catholic school system and possibly have been promoted.

The proceeding

As we have already said, at trial, the defendant admitted that the plaintiff had been sexually abused by Kiss. This admission, however, was not made until the defendant filed an amended defence on 20 October 2023, four days before the trial commenced. In that same amended defence, the defendant first admitted the existence of the 1968 complaint. It was the fact of the defendant’s late admission of Kiss’s abuse and the existence of the 1968 complaint which formed the basis for the plaintiff’s claim at trial for aggravated and exemplary damages (about which, we will say more below).

The trial

At trial, the plaintiff gave evidence and called five other witnesses: his wife; Dr Helen Coote, a clinical psychologist who treated the plaintiff between 2017 and 2019; Dr Matthew Tagkalidis, a consultant psychiatrist who examined the plaintiff at the request of the plaintiff’s solicitors in September 2022; Neil McCann, a senior professional officer at the Catholic Education Office; and Mark Thompson, a forensic accountant. The defendant called two witnesses: Dr Timothy Entwisle, a consultant psychiatrist who examined the plaintiff at the request of the defendant’s solicitors in June 2023; and Richard Ivey, a forensic accountant.
In addition, the parties tendered a significant amount of documentary evidence,[5] including reports written by the medical and accounting witnesses, and a document headed, ‘Impact of Abuse by Vincent Kiss’ written by the plaintiff in 2004[6] (the ‘impact of abuse document’).

Evidence of the plaintiff

[5]The plaintiff tendered 10 exhibits, and the defendant tendered 30 exhibits.

[6]Exhibit D2.

In briefly summarising the background of this matter, we have already referred to a number of parts of the plaintiff’s evidence. We do not propose to repeat what we have already said.
In relation to his family life growing up, the plaintiff gave evidence that his father, who had been a prisoner of the Japanese during the Second World War, was verbally abusive towards his mother and physically abusive towards him. He said that his father, who worked as a carpenter, was an undiagnosed alcoholic, who would ‘come home on Friday night and be terribly abusive’.
The plaintiff gave evidence that he did well at primary school, ‘always [being] in the top sort of half of [his] class’.
The plaintiff’s evidence was that Kiss’s abuse of him commenced when he was in Year 9, went through Year 10 and into Year 11, but that the plaintiff ‘started to pull back at the end of Year 11’. The plaintiff gave evidence of an occasion when Kiss told him that he was dying of leukaemia and only had a year or two to live. This was untrue. As the plaintiff put it, it was ‘just part of the grooming’. The plaintiff said that he was very confused during the time he was abused, and that he was certain that he was homosexual, which terrified him.
The plaintiff gave evidence that once he cut himself off from Kiss at the end of Year 11, ‘there was a time of kind of recovery’ and he went on to become school captain and captain of the first 13 rugby league side. He said his results ‘were suffering terribly’, and he did not do well at the end of Year 12. He said he got a final score at the end of Year 12 ‘which didn’t get [him] into anything’. He said that he wanted to be a social worker, but that he did not obtain a high enough mark to get into social work at university.
We have already described the circumstances in which the plaintiff obtained a teaching qualification and his subsequent employment. The plaintiff gave evidence that after he obtained his qualification, for many years, ‘probably 10 plus years’, he rarely gave any thought to his history with Kiss. There came a time, however, when there were an increasing number of media reports about allegations being made against priests and brothers. As the plaintiff put it:
I just started getting all this information and it was just starting to trigger my own memories, and — so I was getting lots of flashbacks, starting to get a lot of flashbacks.
The plaintiff said that the flashbacks were ‘horrible, horrible memories, horrible’; and that he ‘just couldn’t shift them’. He said that he ‘couldn’t get them out of [his] head’, and that he was losing sleep — ‘it was just overwhelming’. This went on for about six months, before he ‘finally plucked up the courage’ and attended a local police station where he reported the abuse.
The plaintiff gave evidence that in August 2002, Kiss went to court and pleaded guilty in relation to offences against him, Paul Ryan and two other boys. He was asked and answered the following questions:
Now, in this case it’s now admitted that Paul Ryan who was a bit older than you?---M’mm.
Had been abused a number of years earlier?---M’mm.
And had made a complaint about that abuse and about Kiss’ conduct to a Father O’Connell?---Yes.
And are you aware of that?---I am.
The plaintiff said that he first learnt about Paul Ryan’s complaint ‘recently’. He said he was ‘flabbergasted’ and that it:
just intensified my anger, again, here we go, another situation where the church knew and did nothing. And this guy went on to become a director of youth after, long after the complaint from Paul. And they did nothing. I was very, very angry. So I was — yeah, I was confused because one of the psychiatrists mentioned it — I was angry and I had no idea what he was talking about, about the complaint. I must — I don’t know, I — it was a few weeks ago when I found out was the first time I ever heard the news, I wasn’t aware.
Of taking leave from his job in Australia at the start of 2003 and going to the UK, the plaintiff said he went there to escape. He ‘needed desperately to get away’ and ‘It was so good just to be away from the scene of the crime and to experience life with my family’. We have already described the plaintiff’s employment and work in the UK, including his return to Australia in 2004 and again in 2022. In evidence, the plaintiff rejected a suggestion made by the defendant that his move to the UK was ‘a lifestyle choice’.
In the impact of abuse document (written by the plaintiff in 2004), the plaintiff said that, ‘without hesitation’, he would ‘categorically state’ that the abuse he encountered at the hands of Kiss ‘had the greatest negative impact of all the events of [his] life’. He said that the feelings of guilt and shame were at times almost intolerable. While he said that for many years from 1976 until a couple of years before he decided to press charges (1994), he was able to suppress the abuse ‘almost to the extent that [he] rarely gave it a thought’, the abuse was ‘the single most controlling aspect of [his] life’.

As to the plaintiff’s career prospects but for the abuse, the plaintiff gave evidence that probably after being in the position of religious education coordinator for five or six years, he would have been looking for a position as a deputy principal. His evidence was that somewhere around 2004/2005, he would have hoped to be a deputy principal, and six to seven years after that, he would have hoped to be a principal. The plaintiff said that, but for the abuse, he believed he would still be working. He would love to be working, and retirement had never been on his agenda. When asked whether he would have worked until retirement age (which was suggested to him to be 67), he said, ‘yes, definitely’.

Evidence of the plaintiff’s wife

The plaintiff’s wife, who we will refer to as Mrs TJ, gave evidence that they met in January 1982 and married in December 1985. They had three children and everything in their family life ‘had been lovely’ until allegations of sexual abuse by members of religious orders started to surface in 1992–94. Mrs TJ said that the plaintiff’s ‘whole demeanour changed’. He became agitated and silent. He would physically remove himself. A door would slam and there would be yelling for no apparent reason. He would be volatile and respond irrationally to the simplest things, and then he would leave. It got worse towards the end of the 1990s, and went beyond the 1990s into the 2000s. From 1995 onwards, there would be episodes of volatility, ‘often, regularly, weekly’. There would be bursts of rage and anger, and lots of yelling.
Mrs TJ described the lead-up to them leaving Australia in 2003:
Just the spiralling of the behaviours, the yelling, the leaving. He was — he became a strict disciplinarian to our children, and he — so at home those behaviours sort of exploded.
When asked why they moved to the UK, Mrs TJ said:
I think both school and home life became untenable. I would have done anything at all to make our family life go back to the way it was and to make [the plaintiff] the way he was, and … I didn’t know what the best way forward was but [the plaintiff] wanted to run away and we decided we would leave for a year at that point … .
Mrs TJ described outbursts by the plaintiff which would be followed by him taking off in the car or by silent treatment. She was asked and answered the following questions:
And when you say breaks, did you ever actually separate physically?---Just nights. At that point there would be occasions where you would be — I was never scared of him being physically abusive, he’s a gentle soul. But he was so wild and I would be just so distraught and I would go away, I would say, ‘Right, I’m — ’, and I might leave for a night or he might leave for a night. But they weren’t prolonged. The silences could be prolonged.
When is the last time this happened?---The last time this happened was around six weeks ago, eight weeks ago maybe. I can’t even remember what it was about, it was over something extremely simple, it wasn’t an argument, and he exploded. And I was a mess and he bigger and better than ever said, ‘That is it, that is the end, we are over. We’re going to have to start dividing, we have to look at what we have’.
Mrs TJ described improvement in the plaintiff after treatment from Dr Coote in the UK. She said that, after that treatment, he has not ‘raged’ at the children — although he has raged with her, ‘but less of it and in between times I’ve seen that warmth again’.
As to the plaintiff’s career ambitions, Mrs TJ said that, from the moment they met, the plaintiff talked about his plans. He was aiming to be a principal, ‘and that was always what we understood together, he would go down that route’.

Evidence of Dr Coote

Dr Coote gave evidence that she is a clinical psychologist, holding a doctorate in clinical psychology, and an accredited practitioner in EMDR (Eye Movement Desensitisation and Reprocessing). Dr Coote treated the plaintiff between September 2017 and 2019. The treatment included EMDR, as well as broader psychological therapy.
Dr Coote’s evidence was that the plaintiff met the criteria for Post-Traumatic Stress Disorder, severe anxiety and moderate depression when she first assessed him in 2017. Dr Coote described the plaintiff as having made good progress after undergoing EMDR. Dr Coote said, however, that the lasting impact of abuse was impossible to predict; and that she anticipated that some of the plaintiff’s symptoms would ‘likely continue indefinitely due to the severity and circumstances of the abuse and being untreated for so many decades’.
As to the effects of Kiss’s abuse, Dr Coote said:
It is likely that the symptoms [the plaintiff] has experienced throughout his life have significantly affected his career progression and employment opportunities. … [H]e has been in survival mode throughout most of his life; this takes a lot of mental and physical energy away from other things in his life including the ability to progress his career. It is likely that he would have achieved more if he had not suffered the abuse, as he would not have had the multiple mental health issues it left him with, he would have had more confidence, better relationships, and an ability to focus his mind more effectively. I also believe that in leaving Australia due to the reminders of the abuse, he derailed his opportunities within work; he was Head of Religious Education of a school and on a trajectory where he would become School Principal, but when he left he had to restart in the UK at a far more junior level, without the ability to work his way up in the same way.
In summary, [the plaintiff’s] experiences of abuse as a teenager have significantly affected his mental health, career trajectory, relationships, and many other areas of his life, and have necessitated psychological treatment that is likely to be needed on and off throughout his life.

Evidence of Dr Tagkalidis

Dr Tagkalidis gave evidence that he is a consultant psychiatrist who, at the request of the plaintiff’s solicitors, performed a psychiatric examination of the plaintiff on 1 September 2022. He took a history of the abuse and its consequences, including the plaintiff’s current symptoms, which included that the plaintiff was prone to tears. The plaintiff told him that symptoms, from which he had suffered previously, had ‘partially settled’.
Dr Tagkalidis expressed the opinion that, at the time of his examination, the plaintiff was suffering from residual features of chronic Dysthymic Disorder (Persistent Depressive Disorder in the DSM V) and residual features of Complex Post-Traumatic Stress Disorder with associated personality disruption. He said that both of these syndromes had ‘substantially abated’ in the last two to three years as a result of effective treatment (including EMDR). He said:
I considered that he [the plaintiff] was developing in a somewhat compromised manner in life prior to the relevant abuse incidents due to his father’s abuse, and that the relevant abuse caused a significant detrimental effect on his developmental trajectory which resulted in further very substantial compromises in his functioning and emotional wellbeing as described above in the body of the report.
It is unlikely that he would have developed the psychiatric disorders he currently clearly has but for the relevant abuse period. It is more likely that he would have slowly settled and that psychiatric symptomatology would have abated into his early adulthood, and that he would have been left with only some personality vulnerabilities.
The relevant abuse incidents and their long term sequelae contribute approximately 75% of his long term and ongoing emotional vulnerability, and the remaining 25% results from his father’s abusive nature.
Dr Tagkalidis expressed the opinion that it was more likely than not that, with the improvement in the last two to three years, the plaintiff would be able to enjoy much of the rest of his life — albeit never to the extent that he could have done if the abuse had not occurred. Dr Tagkalidis said that the plaintiff’s working career had ‘obviously been hampered by poor self worth and low confidence, and relatively poor stress tolerance and emotional reactivity, all directly the result of the relevant abuse period’; and that he did not think that ‘the early issues within the family would have significantly hampered his [the plaintiff’s] educational and career achievement’.

Evidence of Neil McCann

Mr McCann gave evidence that he is a senior professional officer at the Catholic Education Office. Between 1985 and 1995, he was a teacher at the school where the plaintiff taught. In 1987, he became a year coordinator; and in 1988, he became the religious education coordinator. As the religious education coordinator, he oversaw the plaintiff’s work as a religious education teacher.
Mr McCann’s evidence was that the plaintiff ‘was an exceptional teacher’. Mr McCann said:
He built incredible rapport with students, staff and parents. I certainly had no performance concerns about [the plaintiff] as a teacher during that period of time. He was dedicated, he would take work that I would delegate, specifically he was highly competent at conducting social — we call them social justice initiatives which was under my role, but [the plaintiff] was extremely good at organising events to raise money for all sorts of charities that the school was involved with.
Mr McCann gave evidence that a realistic potential trajectory for someone in the plaintiff’s position would have been a promotion to deputy principal after five to six years as a religious education coordinator, with a further promotion to principal after another six to seven years. Mr McCann described the plaintiff as ‘an extremely competent and charismatic leader’.
Asked about the retirement age for principals, Mr McCann said that he was 66 and there were ‘principals who are well over my age … or a little bit over my age’, although they tended to retire at the retirement age, 67.

Evidence of Mark Thompson

Mr Thompson gave evidence that he was an accredited forensic accounting specialist, who had been engaged by the plaintiff’s solicitors to provide reports containing calculations of the plaintiff’s economic loss based on various assumptions. One of the sets of assumptions (referred to as ‘scenario 2’) involved calculating the plaintiff’s economic loss on the following basis:
Assume [the plaintiff] would have, without injury:
1.Earned the equivalent, with appropriate indexation, of his 1999/00 income until 2005;
2.In 2005, become a deputy principal;
3.In 2010, become a principal.
Making the assumptions referred to in scenario 2, Mr Thompson calculated the plaintiff’s past economic loss (including past loss of superannuation) in the sum of $843,812; and calculated his future economic loss (including future loss of superannuation) in the sum of $240,225. Mr Thompson also gave evidence that the annual earning rates that he used during the period it was assumed that the plaintiff would be a principal were either at the lower end of the range or below the range set out in the applicable enterprise bargaining agreements for the years 2011, 2013, 2017 and 2020.

Evidence of Dr Entwisle

Dr Entwisle gave evidence that he is a consultant psychiatrist who, at the request of the defendant’s solicitors, undertook a psychiatric assessment of the plaintiff, via Telehealth (FaceTime), on 22 June 2023. Dr Entwisle expressed the opinion that it could not be argued that the plaintiff ‘would have done any better, if the abuse had not occurred’. He said that, despite the plaintiff’s vulnerability, he was ‘dedicated to teaching which he experienced as a rewarding career’. Dr Entwisle diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder (in remission).
Dr Entwisle said that the plaintiff has a capacity for work; and that his not working had resulted in a decline in his mood. With respect to contributions to the plaintiff’s psychopathology, Dr Entwisle attributed 60 per cent to the ‘alleged abuse’ by Kiss, and 40 per cent to the plaintiff’s upbringing (including his father’s physical abuse of him, his witnessing of his father’s abuse of his mother, alcoholism ‘and his parents’ reported disinterest in him’).

Evidence of Richard Ivey

Mr Ivey gave evidence that he was a forensic accountant who had ‘considerable experience in examining past financial records, be they taxation, accounting or economic reports, to gain an indication of the past economic and financial performance of individuals and businesses generally’. He was retained by the defendant to provide a response to the reports of Mr Thompson, and to provide his opinion as to whether the plaintiff had suffered any loss of earnings or loss of superannuation (both past and future).
Having examined all of the material provided to him, Mr Ivey expressed the opinion that the plaintiff had not suffered any past or future economic loss.

The balance of the trial

At the conclusion of the evidence, the defendant made an application that the plaintiff’s claim for exemplary damages be taken away from the jury. The judge rejected that application, but reserved leave to the defendant to move non obstante veredicto in the event that the jury determined that the plaintiff should be awarded any amount for exemplary damages.[7]
[7]Ruling, [31].
During the course of their addresses, counsel for the plaintiff and the defendant put various figures to the jury. On behalf of the plaintiff, it was submitted that the jury should award a sum of not less than $500,000 for pain and suffering damages; $768,812 for past economic loss; and $65,191 for future economic loss. The plaintiff did not put any figure in respect of his claim for exemplary damages. On behalf of the defendant, it was submitted that the jury should award a sum of no more than $250,000 for pain and suffering damages; nothing for economic loss;[8] and nothing for exemplary damages.
[8]As an alternative submission, counsel for the defendant put the sum of no more than $30,000 for economic loss.
During the course of the judge’s charge, counsel for the defendant asked the judge to direct the jury that it was only to consider an award of exemplary damages in the context of the defendant, being Bishop Edwards and the Diocese of Wagga Wagga. She submitted that the jury should be told that they should not take into account ‘some greater body which is a non-existent body of the Catholic Church and any concepts that may flow with it’. It was put this way:
The defendant is only liable for its own negligence and the vicarious liability of Kiss, and not any other sins of the Catholic Church in that broad umbrella term. And we say that ought to be made clear to the jury.
The judge declined to direct the jury in the terms sought by the defendant.[9]
[9]See further, Ruling, [103].
Following the jury’s verdict, the judge heard submissions pursuant to the leave he had reserved to the defendant to move non obstante veredicto. Ultimately, his Honour rejected the defendant’s submissions and entered judgment in accordance with the jury’s verdict.[10]
[10]Ruling, [152].

The jury’s award of pain and suffering damages (proposed ground 2(a))

We commence with proposed ground 2(a), pursuant to which the defendant seeks to overturn the jury’s assessment of the plaintiff’s pain and suffering damages on the basis that it is manifestly excessive and against the weight of the evidence.

Assessing a claim of manifest excess or inadequacy: the principles

The function of an appellate court in reviewing an award of damages by a jury has been discussed in many cases. It has long been accepted that an appellate court should exercise caution in interfering with a jury’s verdict on damages.[11] The need for caution is heightened in the case of an award of damages for pain and suffering, because an assessment of such damages involves resort to standards of evaluation that are imprecise. In that sense, an assessment of this type of damages differs from an assessment of damages for pecuniary losses, where no resort to external standards beyond rational norms is required and it is often easier to judge whether a particular result is reasonable, in the sense of being a logically possible inference from the evidence.[12]
[11]See, eg, Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 227–8, 239 (Toohey J, Dawson J agreeing at 222, McHugh J agreeing at 239); [1991] HCA 10 (‘Coyne’).
[12]Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308, 322 (Windeyer J); [1962] HCA 42 (‘Greenwood’).
An appellate court is not entitled to overturn a jury’s assessment of damages merely because the assessment is different from that which the court itself would have reached. Instead, the question is whether the jury’s award of damages is ‘outside the bounds of reason’, in which case it should be set aside ‘on the simple ground that the jury has failed in its duty to act reasonably’.[13] In considering this question, an appellate court must assume that the jury took a view of the evidence most consistent with the size of the verdict it has returned.[14]
[13]Ibid 312 (Taylor, Menzies and Owen JJ).
[14]Coyne (1991) 172 CLR 211, 227, 239 (Toohey J, Dawson J agreeing at 222, McHugh J agreeing at 239); [1991] HCA 10.
As Toohey J explained in Coyne, in a judgment with which Dawson J and McHugh J agreed, the precise formula to be applied in deciding whether an award of damages by a jury should be set aside as too large is ‘not crucial’:
Courts have spoken of awards that were ‘unreasonable and out of all proportion’; have said that ‘no reasonable proportion existed between [the amount] and the circumstances of the case’; and have said that awards were so large (or so small) that ‘twelve sensible men could not reasonably have given them’. The test is often framed in the words of Havers J in Lewis v Daily Telegraph Ltd, as whether ‘the damages are so large that no reasonable jury could have given them without taking into account something which they were bound to exclude from their consideration, and [whether] they are out of all proportion to the facts of the case’.
The real point is, as Lord Hailsham pointed out, that ‘the law makes the jury and not the judiciary the constitutional tribunal’: Broome v Cassell & Co. There will be awards by juries that are so large or so small that there is an instinctive reaction by the appellate court that something must have gone wrong in the jury’s deliberations. … But that is not to say that an appellate court should begin with its instinctive reaction and test the award against that. Rather, the court should first look at the evidence, assume that the jury took a view of the evidence most consistent with the verdict it returned, and then ask whether, in the light of that evidence, the award is sustainable.[15]
[15]Ibid 238–9 (Toohey J, Dawson J agreeing at 222, McHugh J agreeing at 239) (citations omitted).
The exercise of assessing whether an award of damages arrived at by a jury is sustainable, by reference to the touchstones of ‘reasonableness’ and ‘proportionality’, is not without difficulty. It has caused some judges to express serious misgivings, including in a powerful dissent of Windeyer J in the leading case of Greenwood, now delivered more than 40 years ago.
Windeyer J there contrasted the task of reviewing an award of damages by a jury with the task of reviewing an award made by a judge. In the latter scenario:
our task is clear, if not easy. We examine the evidence for ourselves, guided by whatever findings of fact the primary judge made and knowing his reasons for the conclusion that he reached. We can draw whatever inferences from the evidence as to past events we think proper, and make whatever assumptions we think should be made as to the probabilities of the future, remembering only that we have not seen the witnesses. Having done so, we must assess the damages according to our own opinions of what is reasonable compensation. We may be, indeed necessarily must be, influenced by knowledge of what was done in other cases. We must give due weight to the opinion of the trial judge and not lightly set it aside, but in the end we must decide whether the amount he awarded should stand or some other amount be substituted for it. But in this case we cannot do any of that. This case was tried by a jury.[16]
[16](1962) 107 CLR 308, 321; [1962] HCA 42.

As to the task of reviewing an award made by a jury, Windeyer J referred to the statement of Dixon J that damages for pain and suffering ‘can only be measured according to the standards that generally prevail, and a reasonable conception of what is adequate to the occasion’. Windeyer J queried where ‘the measure of reasonableness’ and ‘the standards that generally prevail’ are to be found for the purpose of appellate review of damages awarded by a jury. His conclusion was that they were principally to be found in consideration of awards of damages that the appellate judges knew to have been awarded in other cases, whether from personal experience or otherwise — a matter of which members of juries are ‘carefully denied knowledge’.[17]
[17]Ibid 323, 327.
Windeyer J went on:
A court cannot know what the jury thought of the evidence, how they looked at the plaintiff’s experiences in the past or how they foresaw his future. When damages are said to be excessive, it is to be assumed that the jury took the most favourable view possible of the plaintiff’s claim, that is that they took the most serious view possible of his plight and entertained the utmost pessimism as to his prospects. But what that actually means in a case like this it is impossible to know. Even the future consequences of the injury could not be predicted with any certainty. How the jury saw the plaintiff’s future we cannot know; and we must resist the temptation to draw our own inferences for the evidence and test the jury’s verdict by them.
…
The validity of their verdict does not depend upon whether a court approves it, but on whether it is the result of an honest performance of their duty. Of that, conformity with a supposed standard of measure that is both imprecise and unknown to them seems hardly an appropriate test. Courts should, I think, be very slow to accuse a jury of having failed to perform the duty they were sworn to perform. If honestly, without prejudice or partiality they considered the evidence and arrived at a verdict, they did their duty.[18]
[18]Ibid 326–7.
These types of themes have been taken up by other judges over the years, including in Tzouvelis v Victorian Railways Commissioners, a decision of the Full Court of this Court shortly after Greenwood was decided.[19] Gowans J there referred to the subsequent statement of the High Court in O’Brien v Dunsdon[20] that an assessment of damages for pain and suffering (made in that case by a judge sitting alone) should ‘hav[e] regard as far as possible, to the general standards prevailing in the community’.[21] His Honour went on:
Whatever may be the difficulties of ascertaining the ‘general standards prevailing in the community’, and whatever may be the practical problem involved in an appeal court determining whether a jury has observed those standards, it is not permissible, as I understand the law, for an appeal court charged with the function of exercising a supervisory jurisdiction in respect of the verdicts of juries to say in any particular case that the jury had set their own standard and it was all a matter for them. The appeal court must measure the verdict against some standard and the various phrases used to describe the standard (see Australian Iron and Steel Ltd v Greenwood) do not really disguise the fact that the judges sitting on appeal must depend upon their own knowledge of awards in other cases, whether derived from personal experience or otherwise, and pronounce upon the question as to whether the award is ‘substantially beyond the highest figure, which in their view could reasonably have been awarded’.[22]
[19][1968] VR 112.
[20](1965) 39 ALJR 78.
[21][1968] VR 112, 154 (our emphasis).
[22]Ibid 154–5 (citations omitted).
That said, an appellate court must not use its knowledge of awards made in other cases to identify a ‘norm or standard’ by comparison with which a particular award can be seen as disproportionate. The High Court (Barwick CJ, Kitto and Menzies JJ) emphatically rejected an invitation to adopt that approach in Planet Fisheries Pty Ltd v La Rosa:
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. … 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. … The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet’s counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.[23]
[23](1968) 119 CLR 118, 124–5; [1968] HCA 62 (‘Planet Fisheries’).
For some years this statement provoked controversy which, perhaps as a result of the introduction of statutory caps and far fewer civil jury trials in Australian jurisdictions, appears to have abated. For instance, Kirby P sitting in the New South Wales Court of Appeal in 1985 said:
How he [an appeal judge] can do so without relying upon decisions he considers comparable, particularly those of courts superior to the one in which he is sitting, is beyond my understanding. …
Instead, for more than fifteen years, our courts have paid obeisance to Planet Fisheries and to the inherently contradictory obligation which it imposes on them.[24]
[24]Moran v McMahon (1985) 3 NSWLR 700, 704, 711–12.
Indeed, these days the decision in Planet Fisheries seems to be honoured more in the breach.[25] Nevertheless, it remains the binding authority for this Court.
[25]See the discussion in Bilson v Vatsonic Communications Pty Ltd [2024] QCA 171, [138]–[150] (Bowskill CJ, Boddice JA agreeing at [153], Henry J agreeing at [154]).
Ultimately, the task for this Court is to determine whether, accepting the evidence at its highest for the plaintiff, the jury’s award was nevertheless not open because the amount was not reasonable or proportionate and was thus beyond any fair and reasonable assessment of damages for the plaintiff’s injuries. In other words, an appellant must demonstrate that, on the view of the evidence most favourable to the respondent, the jury’s assessment of damages was so high that no reasonable jury properly instructed and confining itself to relevant matters could have arrived at that figure.
In undertaking this task, the members of this Court are to apply their own views as to the reasonableness of the size of the verdict returned by six citizens of the State. Such views will be informed by what is known by members of this Court of assessments of damages in other cases generally, and by their perceptions of the general standards prevailing in the community. The result of this task may be that the views of two or three judges (from a cohort that is often said to reside in ivory towers and to be out of touch with the public at large) is substituted in preference to the joint decision of six members of the community randomly selected and charged at law with making that decision. That exercise, in itself, bespeaks caution.

Parties’ submissions

The defendant submitted that ‘when you look at all the evidence’, the award of pain and suffering damages of $1.1 million is unreasonable. In support of that contention, the defendant observed that the nature of the abuse ‘did not involve penetration or acts of violence’; ‘the abuse occurred over a limited period of time’; ‘in the immediate short term after the abuse, the [plaintiff] was able to block things out and it did not impact on his life at that stage’; ‘the abuse did not significantly affect the plaintiff for approximately 18 years between 1976 up until approximately 1994’; ‘during the period of symptoms between 1994 and 2017, there were periods in which the plaintiff described his life as being “a happy time”’; the plaintiff ‘succeeded at and enjoyed his vocation as a teacher, he enjoyed heterosexual relationships, ultimately meeting and marrying his wife’; together, the plaintiff and his wife, ‘travelled around the world, established a home, and raised three healthy, happy and successful children’; and the plaintiff’s symptoms had ‘reduced as a result of successful treatment, with the plaintiff stating his treatment from [Dr Coote] had been “fantastic” and had led to significant improvement in his symptoms, including the cessation of flashbacks’.
Additionally, the defendant submitted that any award of damages for pain and suffering ‘should have been discounted by the jury to factor in the role of unrelated causative factors which the evidence demonstrated had impacted upon the plaintiff’s condition and symptoms’. The defendant submitted that this approach was supported by the evidence of both Dr Tagkalidis and Dr Entwisle. The defendant specifically relied upon Dr Entwisle’s evidence apportioning 40 per cent of the plaintiff’s impairment to early life difficulties unrelated to Kiss’s abuse. The defendant said that ‘The weight of the evidence supported the conclusion of Dr Entwisle being preferred in circumstances where he had obtained a more detailed history of the abuse by the [plaintiff’s] father and, unlike Dr Tagkalidis, had relevant expertise as a child psychiatrist’.
In support of its contention that the amount awarded by the jury for pain and suffering was manifestly excessive, the defendant observed that, apart from one jury verdict which was then under appeal,[26] there had been, and are, no cases in Australia where pain and suffering damages have been assessed in an amount greater than $1 million. The defendant sought to rely upon a document prepared by his solicitors and counsel headed, ‘Comparative Damages Table — Psychiatric Claims Relating to Childhood Abuse — Judge Alone Trials’ (the ‘damages table’). The damages table identified 33 cases where pain and suffering damages had been awarded in relation to psychiatric claims relating to childhood abuse in judge alone trials between 2010 and 2024. The table set out awards of pain and suffering damages ranging from $30,000 to $525,000. The defendant submitted that the median figure for pain and suffering damages shown by these cases was $275,000.
[26]Kneale v Footscray Football Club Ltd.
So far as any aggravated damages component in the jury’s award of pain and suffering damages was concerned, the defendant submitted that there was no basis for any award of aggravated damages; alternatively, there was ‘only a basis for a very modest award of aggravated damages’. The defendant observed that the only foundation for the plaintiff’s claim for aggravated damages was the evidence which the plaintiff gave about the effect on him of being told about the 1968 complaint. The plaintiff’s evidence was that he found out about the 1968 complaint only a few weeks before trial; and, while it intensified his anger, there was no medical evidence that this exacerbated his condition or aggravated his pain and suffering.
In responding to proposed ground 2(a), the plaintiff contended that the defendant’s submissions ignored the fact that this Court, when considering the amount of damages awarded, must approach the case on the basis most favourable to the respondent to the appeal (in this case, the plaintiff). The plaintiff submitted that the defendant, rather than adopting this approach, merely sought to agitate the same matters which he had relied upon at trial and which had been rejected by the jury.
The plaintiff submitted that the award of $1.1 million was an appropriate figure, arrived at by a jury of six lay people; and that the verdict reflected current community standards. The plaintiff highlighted what was said by this Court in Amaca Pty Ltd v King:[27] first, that over the 10 to 20 years leading up to that decision, awards of damages had increased significantly, not just in personal injury cases, but in other areas of litigation as well;[28] and secondly, that such ‘gap’ between sums which might appear to have been awarded by judges in other States for pain and suffering damages and the amount awarded by the jury in that case, were in part explicable on the basis of different statutory regimes, and also the possibility that judges’ assessments of damages might be affected by past awards, whereas jury awards were not so affected.[29]
[27](2011) 35 VR 280; [2011] VSCA 447.
[28]Ibid 321 [180] (Nettle, Ashley and Redlich JJA).
[29]Ibid 322 [183] (Nettle, Ashley and Redlich JJA).
The plaintiff contended that the jury were entitled to assess the plaintiff’s damages by reference to the ‘very bleak picture of the extremely serious effects that the … abuse had on the plaintiff’, as described in the impact of abuse document, written by him in 2004. The plaintiff highlighted the fact that the effects of the abuse by Kiss were so severe that, some 40 years after the abuse, the plaintiff needed to undergo EMDR treatment — treatment which he described as ‘a very, very emotional, terrible process’. The plaintiff submitted that it was open to the jury to assess damages on the basis that Kiss’s abuse ‘not only changed the trajectory of the plaintiff’s life but was a pervasive burden on his psychological makeup and existence for most of his life’.
In the event that we concluded that the jury’s award of pain and suffering damages was manifestly excessive, the defendant invited us to reassess those damages, rather than to remit the assessment to the Trial Division. While not accepting that this Court should interfere with the jury’s award, if a reassessment were to be required, the plaintiff did not oppose the defendant’s suggestion. On the issue of any reassessment, the defendant submitted a range for pain and suffering damages of ‘somewhere between $250,000 and $500,000’.

Analysis

The plaintiff’s criticism of the defendant’s submissions about the jury’s award of pain and suffering damages are, at least in part, well founded. While accepting the principle that the jury’s verdict has to be considered by this Court on the basis most favourable to the plaintiff, the defendant repeated arguments he had put at trial and which the jury were entitled to reject. Notwithstanding the evidence which was favourable to the defendant, namely, that the plaintiff married, raised a family and has enjoyed a successful career, it was open to the jury to conclude that Kiss’s abuse of him has had an extremely deleterious effect on a substantial part of his adult life — and particularly from the early 1990s until approximately 2019 — which effects have not entirely abated, and are still causing him pain and suffering.
Taking the evidence at its highest for the plaintiff, it was open to the jury to award a very significant sum of damages for pain and suffering and loss of enjoyment of life. It was open to the jury to accept the plaintiff and his wife as reliable and credible witnesses who, if anything, understated the devastating consequences of Kiss’s abuse — both in respect of the plaintiff’s personal and family life, as well as his career from at least 1999. In this regard, the plaintiff’s wife’s evidence may well have been regarded by the jury as particularly poignant.
Moreover, it was well open to the jury to assess damages on the basis that the most significant matters about which the plaintiff made complaint were caused by Kiss’s abuse, and that there should be no ‘discount’ of the kind for which the defendant contended. First, the jury were entitled to reject the evidence of the defendant’s medico-legal specialist, Dr Entwisle. The fact that he may have had qualifications in child psychiatry or recorded a more detailed history in his report did not mean that the jury were bound to accept his opinion over the opinions of Dr Coote and Dr Tagkalidis. Secondly, on the evidence of the plaintiff, the plaintiff’s wife, Dr Coote and Dr Tagkalidis (all of the relevant parts of which were open to be accepted by the jury), there was no reason why the jury could not reject the defendant’s contention that part of the plaintiff’s psychiatric condition and its sequelae were caused by factors external to Kiss’s abuse.
Proposed ground 2(a) falls to be determined by whether, accepting the evidence at its highest for the plaintiff, the jury’s award was nevertheless not open because the amount was not reasonable or proportionate and was thus beyond any fair and reasonable assessment of damages for the plaintiff’s injuries.
The defendant sought to persuade us that the jury’s award was manifestly excessive by reference to the amounts awarded in the 33 cases referred to in the damages table. The exercise the defendant’s table appeared to be directed towards was, at least in part, in conflict with what the High Court said in Planet Fisheries,[30] to which we have already referred. That said, to the extent that the cases in the damages table might contribute to this Court’s general awareness of the kind referred to in Planet Fisheries, we were content to receive it. We reject, however, any attempt by the defendant to rely upon the table as showing some ‘median’ which has any relevance to the present case.
[30](1968) 119 CLR 118; [1968] HCA 62.
Having considered the evidence at its most favourable for the plaintiff, and accepting the very serious consequences and detrimental effects of Kiss’s abuse on a large proportion of the plaintiff’s life, and also accepting that some of those effects are ongoing, we have nonetheless come to the conclusion that the verdict cannot stand.[31] The abuse to which the plaintiff was subjected, while extremely serious, did not involve violence or acts of sexual penetration. With the assistance of psychological treatment, the plaintiff has subsequently managed to experience a relatively successful life, albeit one that has not been without challenges. He is married to a loving wife and together they have raised three happy, successful and independent children. He has participated in full employment of a rewarding kind for decades. Taking into account our general awareness of damages awards in this jurisdiction and our perception of current community standards, we consider that the amount awarded by the jury for pain and suffering damages is significantly beyond an amount which was reasonably open to the jury. While the assessment of the plaintiff’s pain and suffering damages might reasonably and proportionally result in a significant six figure sum, we are unable to see any basis upon which the figure arrived at by the jury in this case can be regarded as reasonable and proportionate to the plaintiff’s injuries and their consequences. It follows that the defendant has made out proposed ground 2(a).

Reassessing pain and suffering damages: the principles

[31]Ibid 124–5 (Barwick CJ, Kitto and Menzies JJ).

As we have already said, in the event that we concluded that the jury’s award of pain and suffering damages was manifestly excessive, the defendant invited us to reassess those damages, rather than remit the reassessment for a retrial; and the plaintiff did not oppose this course.

The approach to be taken by an appellate court in reassessing damages was the subject of discussion by this Court in Backwell v AAA.[32] In that case, Ormiston JA (with whom Brooking JA agreed)[33] identified difficulties in an appellate court reassessing damages in cases where the credibility of relevant witnesses was in issue.[34] This is not, however, such a case. The difficulties created by competing submissions about the credit of relevant witnesses are not present in this case. We think, therefore, that, as was done in Backwell (where there were relevant issues relating to credibility), we should strive to give effect to the request that we reassess the damages so as to reduce the expense and other burdens of a retrial.[35] Such a course is consistent with the overarching purpose of the Civil Procedure Act 2010 — ‘the just, efficient, timely and cost-effective resolution of the real issues in dispute’.[36] This court must seek to give effect to this overarching purpose in the exercise of any of its powers.[37]
[32][1997] 1 VR 182 (‘Backwell’).
[33]Tadgell JA dissenting on the question of whether the reassessment should be performed by the Court of Appeal or remitted to the Trial Division.
[34]Backwell [1997] 1 VR 182, 212 (Brooking JA agreeing at 184).
[35]Ibid.
[36]Section 7.
[37]Section 8. See also s 9(1)(f) and (g).
While the approach to be adopted when considering whether the jury’s verdict is excessive was one which required us to take a view of the evidence most favourable to the plaintiff, in reassessing the damages this Court is not so limited.[38] That is not to say that this Court would be justified in taking a completely fresh view of the evidence and thus requiring its total reconsideration. In Backwell, Ormiston JA identified the preferred approach, which his Honour sourced from the decision of Lush J in David Syme & Co Ltd v Mather.[39] As Ormiston JA put it:
[38]Murphy v Mark [1977] VR 316, 321 (Young CJ, Barber and Murphy JJ); Backwell [1997] 1 VR 182, 212 (Ormiston JA, Brooking JA agreeing at 184).
[39][1977] VR 516 (‘David Syme’).
Rather I prefer the approach expressed by Lush J in the later case of David Syme & Co Ltd v Mather at 532–3 a view which was agreed in by Kaye J at 538 and which was not dissented from by Starke J at 519. There his Honour accepted what had been said in Murphy v Mark but took the matter further in this way. He said at 532:
In that judgment it was pointed out that in the exercise of the power the Court is not restricted to an approach based upon the view of the evidence most favourable to the successful party below. What the Court must do, if it can, is to formulate such order or judgment as it thinks proper to the case, but in doing so, as in the case of an appeal from the decision of a judge, the Court will adopt such findings of fact as emerge from the verdict and judgment and as are not vitiated by misdirection, the admission of inadmissible evidence or any other factor.
He then proceeded to assert that some six factual conclusions of the jury could ‘be inferred, with some confidence that they were not the result of misdirection’. He then concluded:
In deciding whether in this case to exercise the power, it is a matter of importance that the plaintiff has asked for its exercise, and the defendant, the successful appellant, while not consenting does not oppose the request. I think that the inferred conclusions of the jury in relation to matter[s] in controversy at the trial provide a foundation for the formulation of a judgment by this Court, and I think that the likelihood that the new trial will be attended with special difficulties is a consideration relevant to the exercise of our discretion.
To my way of thinking that points the way to a satisfactory approach in cases where both sides seek the exercise of the discretion notwithstanding that there are issues of credibility. It will be a matter of discretion but the question of costs and the peculiar circumstances of each case must have a bearing on the decision taken by the Court of Appeal. Here I think the jury’s verdict points strongly to certain factual conclusions upon which this court may act and it would be grossly unfair to compel the plaintiff to undergo yet another trial in relation to a subject which has caused such distress up to the present time.[40]
[40]Backwell [1997] 1 VR 182, 213 (Brooking JA agreeing at 184).
During the course of argument, we raised with the parties whether the above approach was the appropriate way in which any reassessment should be undertaken by this Court. Both parties were content for us to take the approach identified by Ormiston JA. That being the case (and because, with respect, we also think that what his Honour said in Backwell is correct) it is the approach we propose to take in this case.

Reassessing the plaintiff’s pain and suffering damages

The jury clearly accepted all of the evidence the plaintiff and his wife gave about the plaintiff’s pain and suffering; the consequences of Kiss’s abuse; and the devastating impact that abuse had on the life of the plaintiff in the years leading up to the plaintiff making his police complaint, during the years between that complaint and the time when Kiss was ultimately sentenced, during the period from when the plaintiff decided to leave Australia with his family until the time he received some relief as a result of the treatment administered by Dr Coote, and during the period from that time until the time of trial. Having read all of that evidence, we, too, accept it. While we have not had the benefit of seeing and hearing the witnesses, the relevant evidence of the plaintiff and his wife appears to us to be compelling. It tells a story of the plaintiff having suffered real psychiatric injury, pain and loss caused by Kiss’s abuse of him.
That said, as we have already observed, there can be no doubt that, in some aspects, the plaintiff has enjoyed a relatively successful life.
For these reasons, we are of the view that, albeit that the jury’s assessment of the plaintiff’s pain and suffering damages was manifestly excessive, the evidence given and called by the plaintiff at trial established his entitlement to a very significant award of damages under this head.

It remains to consider the plaintiff’s claim for aggravated damages. At the risk of repetition, the plaintiff’s claim for aggravated damages, which forms part of his claim for compensatory damages, was based upon his reaction to learning about the existence of the 1968 complaint some weeks prior to trial.
We will deal in greater detail with the 1968 complaint when we come to consider exemplary damages. At this stage, it is sufficient to say that we are not persuaded that the circumstances of the 1968 complaint (which are ambiguous), or the plaintiff’s reaction to learning of that complaint some weeks before trial, justify an increase in the amount of compensatory damages for the alleged aggravation. Specifically, in the context of the very serious psychiatric injury suffered by the plaintiff, we are not persuaded that the plaintiff being flabbergasted and angered some weeks prior to trial materially aggravated his injury; or that this reaction should lead to any increase in the amount of compensatory damages properly to be awarded for his injury, loss and damage.
Doing the best we can to arrive at a fair, reasonable and proportionate amount to be awarded for pain and suffering and loss of enjoyment of life in this case, we would assess the plaintiff’s pain and suffering damages at an amount in the range $500,000 to $600,000. In the circumstances, we think the appropriate figure for pain and suffering damages should be $550,000.

Proposed ground 2(a): conclusion

In the result, we would grant the defendant leave to appeal on proposed ground 2(a), allow the appeal, set aside the jury’s assessment of $1.1 million for pain and suffering, and reassess the plaintiff’s pain and suffering damages in the amount of $550,000.

The jury’s award of damages for economic loss (proposed grounds 2(b) and 3)

We turn to proposed grounds 2(b) and 3, which concern the jury’s verdict on the plaintiff’s claim for damages for past and future economic loss.
The jury assessed the plaintiff’s damages for past economic loss at $896,000 and for future economic loss at $69,000.
The relevant proposed grounds of appeal are:
Ground 2(b) — The verdict of the jury on the claim for damages for past and future economic loss was manifestly excessive, and contrary to the evidence and the weight of the evidence.
Ground 3 — Alternatively to Ground 2(b), the verdict of the jury on the claim for economic loss damages was not reasonably open on the evidence.

The pleaded case

Although there were several iterations of the statement of claim, the plaintiff’s case on economic loss did not change. It was expressed as follows:
As a result of the abuse the Plaintiff has suffered insomnia, and intrusive recollections of and flashbacks to the abuse. He is triggered by any reference to child sexual abuse of which there are many that he encounters in his capacity as a schoolteacher, and by references to settings in which he was abused. The Plaintiff experiences difficulties with concentration, anger, tension, irritability, suicidal thoughts, dissociation, feelings of depression and anxiety and guilt. As a result of the abuse he has a continuing sense of distrust toward religious authorities and is socially withdrawn.
As a result of the abuse the Plaintiff’s academic performance was adversely affected, the consequence of which is that his career progression has been significantly curtailed. But for the abuse he would have had access to a greater range of professional opportunities and would have had the capacity to take them on, including to promotions as a schoolteacher.
On 23 August 2023, particulars of special damage, containing itemisation of the plaintiff’s claim for past and future loss of earnings, were filed with the Court. The particulars were premised on two scenarios of the plaintiff’s putative earnings, as opposed to his actual earnings. The relevant parts were incorporated in a table, which was subsequently revised shortly prior to trial and is set out at [108] below.
The expert reports
We referred earlier to the evidence of Mr Thompson and Mr Ivey, the forensic accountants. Mr Thompson prepared four reports[41] at the request of the plaintiff’s lawyers, supporting their client’s claim for economic loss. The figures in the table below and contained in Mr Thompson’s final report (the third supplementary report) are an estimate of the difference between the actual earnings of the plaintiff as compared to his putative earnings in two hypothetical scenarios: the first, the plaintiff’s earnings but for Kiss’s abuse based on the average weekly earnings of tertiary-educated males, with the loss being calculated from 1 January 1978, when the plaintiff’s working life actually commenced (scenario 1); the second, the plaintiff’s earnings but for Kiss’s abuse, based on the plaintiff achieving the role of a school principal in 2010, after five years as a deputy principal, with loss being calculated from 2000 (scenario 2).
[41]His original report dated 26 July 2023, a supplementary report dated 27 September 2023, a second supplementary report dated 23 October 2023, and a third supplementary report dated 1 November 2023.
The revised table took into account, amongst a number of things, a report prepared by Mr Ivey for the defendant’s lawyers. The table was produced under the heading, ‘Summary of Results — Updated Calculations’:
Mr Ivey ultimately prepared two reports.[42] He concluded that on either scenario 1 or scenario 2 (as postulated by Mr Thompson), the plaintiff had suffered no financial loss as a result the abuse.
The parties’ cases at trial
[42]The first on 31 August 2023 and a supplementary report on 29 October 2023.
The plaintiff’s primary case at trial on economic loss (both past and future) substantially mirrored the instructions given to Mr Thompson in the scenario 2 calculations set out below at 122].
In response, the defendant’s case was twofold. First, he contended that the abuse had not materially affected the plaintiff’s life course, particularly when one took into account the effect on the plaintiff of his relationship with his father, which predated the abuse by Kiss. On this basis, it was said that the plaintiff’s life, at least in terms of earning capacity, had not suffered any impairment by reason of Kiss’s abuse.
Secondly, the defendant contended that if there was any material effect of the abuse upon the plaintiff’s career, it had made no difference to his earnings or earning capacity. This part of the case was reflected in the reports of Mr Ivey, whose assumptions and calculations were at odds with those of Mr Thompson. Mr Ivey opined that the plaintiff’s putative earnings as a deputy principal or principal from 2005 would not, on his calculations, have resulted in any different outcome in terms of loss of earnings.
The evidence as to economic loss
We have already set out, in general terms, the plaintiff’s education and employment history. For the purpose of this exercise, it is helpful to provide a little more detail.
First, as to the plaintiff’s education:
(1)From 1971 to 1974, the plaintiff attended a regional high school in Wagga Wagga.
(2)From 1975 to 1976, the plaintiff attended a senior high school in Wagga Wagga, where he completed his HSC, achieving a final score ‘which didn’t get him into anything’.
(3)In 1977, the plaintiff commenced a Diploma of Teaching at a Catholic college of education. He completed the course in 1980.
(4)In 1988, the plaintiff received a Graduate Diploma of Religious Education through a college in Queensland.
Secondly, as to his work and employment:
(1)In 1981, the plaintiff was employed at a Catholic primary school as a year 6 general teacher.
(2)From 1982 to 1983, he taught at a Catholic college.
(3)For approximately 15 months, from April 1984 to 1985, he undertook overseas travel.
(4)In around mid-1985, he taught summer term at a Catholic primary school, in the UK, employed specifically as a ‘floating’ teacher.
(5)He then returned to Australia, taking a teaching position for term 3, 1985, at a Catholic high school in Sydney.
(6)In 1986, he commenced working as a teacher at a Catholic regional high school, remaining in employment at this school until 2004. During this time, the plaintiff:
(a)was promoted to senior teacher in January 1991;
(b)was promoted to various co-ordinator positions in January 1994, October 1999 and January 2002;
(c)took ‘renewal leave’ for the 2003 year and term 1 of the 2004 year, and spent that time in the UK, undertaking full-time employment as a teacher; and
(d)returned to his prior position at the Catholic regional high school in mid-2004, before resigning at the end of 2004 due to difficulties coping.
(7)From 2005 to 2011, the plaintiff worked as a teacher at the school in the UK where he had worked in 2003. He progressed to the role of head of sixth form.
(8)In 2011, the plaintiff ceased work as a teacher and established a tutoring business with his wife in the UK. This required the injection of significant capital. The plaintiff initially worked on his own but later employed additional tutors. In the first two years the tutoring business made no profit but subsequently was profitable. During this time, he also worked as a part time handyman, primarily catering for elderly residents in his town.
(9)In 2013, his wife, who had been employed as a teacher, ceased employment and from that time, worked solely in the tutoring business. The plaintiff and his wife continued working in the business through to early 2022, at which point he returned to Australia. He remains a shareholder in the business, which continues to operate.
(10)The plaintiff has not worked since his return to Australia in early 2022 and currently resides in Melbourne.
We have, at [29]–[30], set out the evidence of the plaintiff, as to the recurrence of his psychological symptoms around the time he reported the conduct of Kiss to the police in 1994. These symptoms continued in the years leading up to Kiss’s conviction in August 2002 and, on his and his wife’s account, were the cause of the family relocating to the UK. Also, at [35], we set out the plaintiff’s evidence as to his aspirations and goals within the Catholic education system.
The plaintiff said the following in evidence in chief as to the potential sale of the tutoring business:
Have you tried to sell the business in the past?---Yes.
When was that?---Well, we decided to come back after our children all came back to Australia. We were left over there on our own, just [my wife] and I, because they all came back and pursued studies over here in about 2016/2017, 2018 they all came back, brought their English partners with them and — so we were left there. And then COVID hit. When they came back we thought well, we don’t want to be in the UK without our family, without our kids. But then COVID hit. We did put the business on the market with a business broker.
Is this pre COVID or at the time of COVID?---This was pre COVID. But we didn’t even get — there was no interest at all.
What was the price that you were asking?---The price we were asking is 150,000 pounds. That was based upon the estimation of the business brokers. I didn’t think that we would sell it for that. I think it was valued too high.
As set out at [36]–[40], the plaintiff’s wife observed a significant change in the plaintiff’s demeanour after the allegations of sexual abuse by members of religious orders began to surface in 1992–94, which were accentuated in 2002 at the time of Kiss’s trial. The plaintiff was described by his wife to be frequently volatile and would have uncharacteristic episodes of rage and anger.
The evidence of Mr McCann, Dr Tagkalidis, Dr Coote and Dr Entwistle is referred to at [42]–[51] and [54]–[55] above.
Then, there was the evidence of the two forensic accountants, Mr Thompson and Mr Ivey, to which reference has been made. It is necessary here to return to their evidence in a little more detail.
Mr Thompson, as already mentioned, prepared four reports and gave evidence at the trial. He assessed the plaintiff’s loss of income based on discussions with and instructions from the plaintiff, instructions from the plaintiff’s lawyers, and his own research.
He was instructed by the plaintiff’s lawyers to prepare a report, calculating the plaintiff’s past and future loss of earnings based on assumptions as to the plaintiff’s counterfactual employment hypothesis. On the basis of those instructions, Mr Thompson assessed the plaintiff’s loss in his first report, adopting the following counterfactual:
(a)the plaintiff would have completed his schooling to Year 12 in 1976;
(b)under scenario 1:
(i)from 1977 to 1979, the plaintiff would have completed relevant tertiary qualifications; and
(ii)from 1 January 1980 to retirement at 67 years of age (ie, 2025), the plaintiff would have derived earnings commensurate with the average earnings of full-time tertiary educated Australian males; and
(c)under scenario 2:
(iii)from 1977 to 1980, the plaintiff would have completed tertiary qualifications to become fully qualified as a school teacher; and
(iv)from 1 January 1981 to retirement age of 67 years (ie, 2025), the plaintiff would have pursued a career in the ‘non-government’ school system in Australia, as follows:
·from 1 January 1981 to 31 December 1998, as a school teacher;
·from 1 January 1999 (ie, age 40 years) to 31 December 2009, as deputy principal;
·from 1 January 2010 (ie, age 50 years) onwards, as principal.

In answer to proposed grounds 2(c) and 4, the plaintiff submitted that exemplary damages are ‘punitive and are intended to hurt’. The plaintiff said:
It is unsurprising that in order to punish an entity like a Catholic Diocese the jury reconsidered [scil, considered] that the award of damages should be substantial in order to ‘sting’.
The plaintiff referred to significant awards of exemplary damages made by other Australian courts, including Nye v New South Wales,[74] where an award of exemplary damages of $750,000 was made, and Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd [No 10],[75] where exemplary damages were awarded against individuals in the sums of $1.5 million and $2 million. The plaintiff also observed that exemplary damages can exceed general damages: noting that in Nye, exemplary damages were assessed at $750,000, while general damages, economic loss and aggravated damages were assessed in the total sum of $525,000. The plaintiff submitted that there was nothing in the jury’s verdict on exemplary damages which indicated any failure to follow the directions of the trial judge.
[74](2004) Aust Torts Reports ¶81-725; [2003] NSWSC 1212 (‘Nye’).
[75][2023] FCA 1656.
In answer to proposed ground 6, the plaintiff submitted that the judge was correct, for the reasons given by him at the time, not to give any specific direction that the jury’s consideration of the issue of exemplary damages had to be confined to the defendant and the Diocese he represented. The plaintiff submitted that the defendant’s position was ‘further weakened’ on this issue by his tendering of a document headed ‘Towards Healing: Principles and procedures in responding to complaints of abuse against personnel of the Catholic Church in Australia, January 2010’, apparently created by the ‘Catholic Church’.[76]
[76]Exhibit D17.
In answer to proposed ground 7, the plaintiff submitted that no application was made to the judge for any direction to be given to the jury about the rules governing pleadings. Moreover, the defendant did not take any exception at trial to the failure by the judge to give any such direction to the jury.

Exemplary damages: the principles

Exemplary damages are awarded to punish a defendant ‘for conduct showing a conscious and contumelious disregard of the plaintiff’s rights and to deter him from committing like conduct again’.[77] In Uren v John Fairfax & Sons Pty Ltd, Taylor J said that they may be awarded if, in the commission of the wrong complained of, the conduct of the defendant had been ‘high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights’.[78]
[77]XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 471 (Brennan J); [1985] HCA 12 (‘XL Petroleum’).
[78](1966) 117 CLR 118, 129; [1966] HCA 40.
The decision of the High Court in Uren was appealed to the Privy Council. In dismissing the appeal from the High Court, the Privy Council, in approving a passage in Mayne & McGregor on Damages,[79] said that exemplary damages:
can apply only where the conduct of the defendant merits punishment which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights.[80]
[79]Harvey McGregor, Mayne & McGregor on Damages (Sweet & Maxwell, 12^th ed, 1961).
[80]Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221, 237 (Lord Morris of Borth-y-Gest for the Court). See also Lamb v Cotogno (1987) 164 CLR 1, 9 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47; Gray v Motor Accident Commission (1998) 196 CLR 1, 5–9 [8]–[20] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [1998] HCA 70 (‘Gray’).
An award of exemplary damages, as can be seen, focuses on the defendant’s conduct, and not upon the plaintiff who was wronged.[81]
[81]Gray (1998) 196 CLR 1, 7 [15] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [1998] HCA 70.
Exemplary damages are an exceptional remedy. They are rarely awarded.[82] A court cannot award exemplary damages unless there is a lack of bona fides in the defendant’s conduct or the defendant’s conduct is otherwise improper or unjustifiable.[83] Moreover, the authorities in this area emphasise that if an award of exemplary damages is to be made, then there is a need for moderation in assessing those damages and that restraint should be exercised.[84] That said, if exemplary damages are to be effective in serving their purpose (punishment and deterrence), they must ‘not merely irritate, they must sting’.[85]
[82]Ibid 6 [12], 9 [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ); The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 84 [419] (Gillard AJA, Winneke ACJ agreeing at 7 [1], Warren AJA agreeing at 89 [453]); [2003] VSCA 161 (‘Popovic’).
[83]Triggell v Pheeney (1951) 82 CLR 497, 514 (Dixon, Williams, Webb and Kitto JJ); [1951] HCA 23 (‘Triggell’).
[84]XL Petroleum (1985) 155 CLR 448, 463 (Gibbs CJ, Mason J agreeing at 464, Wilson J agreeing at 465); [1985] HCA 12; Backwell [1997] 1 VR 182, 205–6 (Ormiston JA, Brooking JA agreeing at 184).
[85]Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, 345 [253]–[254], 346 [256] (Heydon JA, Spigelman CJ agreeing at 303 [3]); [2003] NSWCA 10; Nye (2004) Aust Torts Reports ¶81-725, 65,324 [257], 65,332–3 [303] (O’Keefe J); [2003] NSWSC 1212.
Finally, exemplary damages should only be awarded if, but only if, the sum awarded as compensation is insufficient to punish the defendant for their outrageous conduct, to mark the court’s disapproval of such conduct and to deter the defendant from repeating it.[86]

Proposed ground 1: was there any evidence justifying an award of exemplary damages?

[86]Backwell [1997] 1 VR 182, 206–10 (Ormiston JA, Brooking JA agreeing at 184, Tadgell JA agreeing at 184), citing with approval Lord Devlin’s speech in Rookes v Barnard [1964] AC 1129, 1228 (Lord Reid agreeing at 1179, Lord Hodson agreeing at 1203).

The correctness of the judge’s decision not to take exemplary damages away from the jury depends upon whether there was any evidence upon which it could reasonably be open for the jury to make an award of exemplary damages.[87] That question falls to be determined by reference to the two bases upon which the plaintiff went to the jury on exemplary damages, namely: the defendant’s failure to take any steps to prevent Kiss having contact with children after the 1968 complaint was made; and the defendant’s failure to admit Kiss’s abuse in the pleadings he filed prior to 20 October 2023. We deal with each basis in turn.
[87]Kiriwellage v Best & Less Pty Ltd [2013] VSCA 355, [15] (Osborn and Beach JJA).
In our view, the paucity of evidence relating to the 1968 complaint precluded any award of exemplary damages. Specifically, there was no evidence led as to the terms of the 1968 complaint, the circumstances in which it was made, the nature of the ‘abuse’ about which complaint was made, the relationship between Paul Ryan and Kiss (or the circumstances giving rise to that relationship), the identity of Father Connell (apart from his name and title), or the position within the Diocese (if any) held by Father Connell at the time the 1968 complaint was made to him.
The total lack of detail as to any of these matters precluded any finding that the 1968 complaint provided any foundation for a conclusion that the defendant (ie, the Bishop of Wagga Wagga at that time) had engaged in conduct showing a conscious and contumelious disregard of the plaintiff’s rights; or that the defendant had engaged in conduct which was high-handed or insolent or vindictive or malicious. The lack of any detail of the kind to which we have referred meant that there was no basis for any conclusion by the jury that, because of the existence of the 1968 complaint, the conduct of the defendant in not taking some appropriate step prior to Kiss’s abuse of the plaintiff merited punishment.
While the trial appears to have proceeded on the basis that the ‘abuse’ which Paul Ryan complained to Father Connell about was sexual in nature, we also note that there was no express statement to that effect — either in the defendant’s pleadings or in the very limited evidence led from the plaintiff. Not knowing anything about the detail of the 1968 complaint or its circumstances precludes a conclusion that the person to whom it was made (whose position, if any, is unknown) breached any duty or obligation in failing to bring the complaint to the attention of his superiors in the Diocese of Wagga Wagga (if any), or the relevant predecessor of the defendant.
In his amended statement of claim,[88] the plaintiff asserted that Father Connell was ‘the Curate of the St Patrick Parish operated by the Defendant’. However, that assertion was never admitted by the defendant or sought to be established by the plaintiff at trial. Moreover, and perhaps curiously, in his further amended statement of claim,[89] the plaintiff deleted his earlier allegation that Father Connell was the Curate of a parish operated by the defendant — leaving the position of Father Connell (in the Diocese of Wagga Wagga, or more generally) not even the subject of mere assertion.
[88]Filed 21 August 2023.
[89]Filed 25 October 2023.
To the extent the plaintiff submitted that it may have been open to the jury to infer from the plaintiff’s evidence of his anger, after being told about the 1968 complaint, that Father Connell occupied some position of relevance within the Diocese of Wagga Wagga,[90] we would reject that submission. The evidence the plaintiff gave about his anger about the fact that, following the 1968 complaint, ‘the church knew and did nothing’ — in whatever sense the plaintiff used the words ‘the church’ — does not form any satisfactory basis upon which it would have been open to the jury to conclude that Father Connell had any relevant role within the Diocese of Wagga Wagga. The position of Father Connell was one which it was well open to the plaintiff to seek to establish by evidence. No attempt, however, was made on his behalf to do so at trial; and it was not open to the jury to reason that the plaintiff must have been angry because he knew that Father Connell had some relevant position in the Diocese of Wagga Wagga.[91]
[90]Cf Ruling, [96(c)], [97].
[91]Cf ibid.
Similarly, to the extent that the plaintiff’s submissions about an appropriate response to the 1968 complaint strayed into facts or circumstances outside the defendant’s purview (or the purview of the Diocese of Wagga Wagga), and into facts and matters concerning the conduct of the Catholic Church more generally, as a basis for supporting his claim for exemplary damages, those submissions must be rejected.[92] As the authorities on exemplary damages make plain, it is the defendant’s conduct which has to be considered when dealing with a claim for exemplary damages — not the conduct of some other person or entity. And, as we mentioned earlier, the defendant’s conduct must have a relationship to the claim in the plaintiff’s proceeding — not a wide ranging inquiry into the conduct of the Catholic Church, or for that matter, the Bishop of Wagga Wagga over a period of time unconnected with the plaintiff’s claim. To the extent that the trial judge held otherwise,[93] we respectfully disagree.
[92]Cf ibid [98]–[104].
[93]Ibid, [92]–[125].
It follows from the above that it was not open to the jury to rely on the existence of the 1968 complaint as a basis upon which exemplary damages could have been awarded against the defendant in this case. We turn now to consider the defendant’s non-admission of Kiss’s abuse in the pleadings he filed and served prior to 20 October 2023.
The trial judge was plainly unimpressed with the defendant’s response to the plaintiff’s plea of Kiss’s abuse as set out in paragraph 8 of the defence filed 10 June 2022 and the defence filed 26 September 2023. As we have already noted, his Honour described those paragraphs of the defendant’s pleadings as ‘curiously indirect and reticent’.[94] Before those pleas could be held to be capable of founding an award of exemplary damages, however, it would be necessary to conclude that there was a lack of bona fides in the making of them, or that the defendant’s conduct in making them was otherwise improper or unjustifiable.[95]
[94]Ibid [118].
[95]Triggell (1951) 82 CLR 497, 514 (Dixon, Williams, Webb and Kitto JJ); [1951] HCA 23.
While there may be cases where a defendant puts in issue (by denying or not admitting) a fact which it knows to be true, in circumstances where doing so is capable of being described as ‘high-handed’, ‘insolent’, ‘vindictive’ or ‘malicious’, thus giving rise to the possibility of an award of exemplary damages, it seems to us that those cases will be rare.[96]
[96]See generally David Syme [1977] VR 516. See also Gray (1998) 196 CLR 1, 6 [12], 9 [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [1998] HCA 70; Popovic (2003) 9 VR 1, 84 [419] (Gillard AJA, Winneke ACJ agreeing at 7 [1], Warren AJA agreeing at 89 [453]); [2003] VSCA 161.
The plaintiff submitted that it was improper for the defendant not to admit Kiss’s abuse in his original pleadings. As the plaintiff would have it, it was improper for the defendant not to admit the abuse because it knew that Kiss had pleaded guilty to charges that encompassed the abuse and had been sentenced to a term of imprisonment. The defendant sought to justify the non-admission by saying that, while he accepted that Kiss had pleaded guilty to relevant offences and been sentenced to gaol, he could not know that Kiss had committed the abuse as pleaded because he was not a witness to any of it. The defendant’s contention was that, in the circumstances, he was entitled to make the partial admissions he made in his initial pleadings, but otherwise not admit the plaintiff’s allegations.
Having examined the pleadings in this case in some detail, including the infelicities that appear in both the plaintiff’s and the defendant’s pleadings, we are unable to conclude that there was any basis upon which it could be said that the defendant’s initial non-admissions were somehow lacking in bona fides or otherwise improper or unjustifiable. It seems to us that the defendant’s pleadings which the plaintiff seeks to impugn were, in the words of Lush J in David Syme, ‘purely technical’;[97] and could not be regarded as improper or unjustified.
[97][1977] VR 516, 527–8 (Starke J agreeing at 517, Kaye J agreeing at 533).
When one looks at the entirety of the defendant’s pleadings, one sees a case of a defendant attempting to make more appropriate admissions as the case progresses, rather than a defendant improperly bent on denying the undeniable. The fact that the defendant ultimately admitted Kiss’s abuse in full tells against him having some unjustifiable mindset of denial or any contumelious lack of regard for the plaintiff or his rights.
It follows from the above that it was not open to the jury to rely on the defendant’s non-admissions of Kiss’s abuse as a basis for an award of exemplary damages.
Having concluded that neither of the bases upon which the plaintiff relied at trial to found his claim for exemplary damages were open, proposed ground 1 must be upheld and the jury’s award of exemplary damages must be set aside. As the jury’s award of exemplary damages must be set aside, it is not strictly necessary for us to deal with proposed grounds 2 (c), 4, 6 and 7. However, in deference to the arguments put by the parties on those grounds, we will deal with them briefly.

Proposed grounds 2(c) and 4: manifest excess

If, contrary to what we have said above, we had concluded that the plaintiff established an entitlement to exemplary damages, we would likely have held that the evidence led at trial could not justify the jury awarding a seven figure sum for such damages.
Taking the failure to admit the abuse ground first, and assuming the defendant’s non-admissions prior to 20 October 2023 were improper and deserving of punishment, in our view, such punishment could not properly be assessed at more than a five figure sum of damages.
The difficulty with assessing any amount for exemplary damages in relation to the 1968 complaint arises from the lack of any evidence of the actual conduct of the defendant which requires punishment. As the plaintiff would have it, exemplary damages in respect of the 1968 complaint could have been awarded on the basis that the Bishop of Wagga Wagga learned of it but did nothing; alternatively, they could equally have been awarded because the Bishop ‘fail[ed] to require priests such as Fr Connell to report and act upon such complaints if made’.[98]
[98]Ruling, [97].
It may be that one could posit a situation of a Bishop deliberately ignoring a known risk that a paedophile priest poses to children, and thus knowingly placing those children at risk. In such a case, exemplary damages might very well assess in a significant sum. At the other end of the spectrum, however, if a court concluded that a defendant should be punished for failing to have a system requiring complaints of sexual abuse to be acted upon, the award of exemplary damages might be considerably lower if one was to be made at all, bearing in mind the test for an award of exemplary damages. In the present case, there is no evidence which would enable a court to determine what (if any) contumelious conduct the defendant committed for which he should be punished.
In the circumstances, even if it had been open to the jury to award exemplary damages on one or both of the two bases relied upon by the plaintiff, it is very difficult to see how the award of $1.3 million could be justified on the evidence led in this case.

Proposed ground 6: failing to direct the jury that any award of exemplary damages was confined to the conduct of the defendant

In his final address, while making submissions about exemplary damages, counsel for the plaintiff referred to the 1968 complaint, saying:
But we don’t know what happened to the complaint, we don’t know whether it stayed with Father Connell himself or whether it got lost in the mystery of the Catholic Church or whether it got to higher regions or was ignored, we have no idea and we can’t speculate. But we do know that someone in the Catholic Church was told about it and it doesn’t seem that anything has happened about it.
During the course of the judge’s charge, counsel for the defendant complained about these references to the Catholic Church and, as we have already said, submitted that the judge should direct the jury that it was only the conduct of the defendant which was relevant to the issue of exemplary damages — not the conduct of ‘some greater body which is a non-existent body of the Catholic Church’.
The judge declined to give the direction sought by counsel for the defendant, saying that counsel’s complaint was ‘beyond the margin of irrelevant’.
There can be no doubt that it is only the conduct of the defendant, and not the conduct of any person or body outside the defendant, which could give rise to any liability in this case for exemplary damages. If the judge considered that there was any real risk of the jury awarding exemplary damages against the defendant in respect of the conduct (acts or omissions) of persons other than the defendant, then he would have been bound to give a direction that, as a matter of law, the jury could not award exemplary damages on any such basis.
From his Honour’s response to the defendant’s application for a direction, it is plain that his Honour did not at that time perceive that there was any risk that the jury might award exemplary damages in respect of conduct of a person or body other than the defendant. No doubt the judge formed this view because the plaintiff’s claim for exemplary damages was, in truth, confined to the conduct of the defendant, in failing to take any step after the 1968 complaint was made; and in failing to admit Kiss’s abuse of the plaintiff in his initial pleadings. While his Honour appears to have subsequently taken a broader view of the plaintiff’s claim for exemplary damages (a view which we have already said that we respectfully disagree with),[99] we do not think that the view expressed by the judge when he ruled against the defendant’s application for the direction sought was wrong.
[99]See ibid [98]–[104].

In the circumstances, we are unable to conclude that there was any substantial wrong or miscarriage of justice in the judge failing to give the direction sought by the defendant during the course of his Honour’s charge.[100]

Proposed ground 7: failing to direct the jury about the rules and principles governing pleadings

[100]See r 64.37(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015.

There is no substance in the defendant’s complaint that the judge ‘erred in failing to direct the jury as to the relevant rules and principles which govern legal pleadings in Victoria’. First, there was no occasion for the judge to give any such direction. Secondly, no such direction was, in any event, sought by the defendant at trial. In the circumstances, it is difficult to see how this Court could now conclude that there was any substantial wrong or miscarriage of justice in the judge failing to give any such direction.[101]
[101]See ibid.
The plaintiff’s case at trial was that the defendant’s initial pleadings were improper and deserving of punishment because they put the fact of Kiss’s abuse of the plaintiff in issue when the defendant knew that the abuse had occurred. That conduct (putting the abuse in issue when the defendant knew it had occurred) was said to be deserving of punishment irrespective of the form of the pleading. That is, the alleged impropriety of that conduct could not be answered by the defendant saying that it merely failed to admit the abuse rather than denying it. That being the case, there was no occasion for the judge to give the jury directions about pleading practices concerning the use of the words ‘not admit’ on the one hand, and ‘deny’ on the other hand. If the plaintiff had established that the defendant’s failure to admit the abuse was improper, the form of the pleading in which the abuse was put in issue could not have disentitled the plaintiff to an award of exemplary damages that was otherwise open to be made.

Conclusion

We will make orders granting the defendant leave to appeal; allowing the appeal; setting aside the jury’s assessment of pain and suffering damages and replacing it with an assessment in the amount of $550,000; and setting aside the jury’s award of exemplary damages. We will not make any order setting aside or varying the jury’s assessment of the plaintiff’s economic loss damages.
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[2024] VSCA 262

8 November 2024