| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0146 |
| ARCHBISHOP PETER A COMENSOLI | First Applicant |
| TRUSTEES OF THE CHRISTIAN BROTHERS | Second Applicant |
| v | |
| WQA (A PSEUDONYM) | Respondent |
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| JUDGES: | BEACH, KENNEDY and WALKER JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 May 2024 |
| DATE OF JUDGMENT: | 23 May 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 104 |
| JUDGMENT APPEALED FROM: | [2023] VSC 657 (Gorton J) |
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DAMAGES – Personal injury damages – Matters to be considered in reduction of damages – Disability support pension payments – Newstart allowance payments – ‘Preclusion period’ under Social Security Act 1991 (Cth) – Payments made outside preclusion period not repayable to Commonwealth – Whether payments made outside preclusion period required to be taken into account in assessment of common law damages – No error in primary judge’s conclusion that payments not required to be taken into account in assessing damages – Appeal dismissed.
DAMAGES – Personal injury damages – Cardinal principle that injured party cannot recover more than has been lost – Whether legislative intention can be discerned that statutory benefits to be enjoyed cumulatively upon plaintiff’s entitlement to damages – Indicia of legislative intent – Primary judge correct that legislative intent was that statutory benefits to be enjoyed cumulatively upon plaintiff’s entitlement to damages – Appeal dismissed.
Social Security Act 1991 (Cth), ss 17, 23, 1160, 1169, 1170, 1178 and 1179, and Pt 3.14.
Manser v Spry (1994) 181 CLR 428, applied. National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; Redding v Lee (1983) 151 CLR 117; Haines v Bendall (1991) 172 CLR 60, discussed. Partridge v Hobart City Council (2012) 22 Tas R 29, referred to.
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| Counsel | ||
| First and Second Applicants: | Mr B Walker SC with Mr P Santamaria | |
| Respondent: | Mr TP Tobin SC with Ms C Spitaleri | |
Solicitors | ||
| First Applicant: | Wotton + Kearney | |
| Second Applicant: | Carroll & O’Dea | |
| Respondent: | Arnold Thomas & Becker | |
BEACH JA
KENNEDY JA
WALKER JA:
In January 2020, WQA[1] (‘the plaintiff’), who was born in 1948, commenced a proceeding in the Trial Division of the Supreme Court against Archbishop Peter A Comensoli and Trustees of the Christian Brothers (‘the defendants’) claiming damages for injuries alleged to have been suffered as a result of sexual abuse that took place between 1959 and 1961. The plaintiff’s claim included a claim for damages for past loss of earnings from January 1964 (being the month he claimed he would have entered the workforce but for his injuries) to October 2015 (the date when he reached retirement age).
[1]A pseudonym.
The proceeding was listed for trial on 7 February 2023. On that day, however, the parties informed the Court that the proceeding had settled, subject to the question of whether certain social security payments received by the plaintiff should be deducted from the settlement amount agreed by the parties. The defendants’ contention was that the social security payments paid to the plaintiff (which were not repayable by him) should be taken into…
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- AGLC
- Comensoli v WQA [2024] VSCA 104
- Case
- [2024] VSCA 104
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to address included the principle that an injured party cannot recover more than they have lost, and whether the legislative intent could be interpreted to allow statutory benefits to be enjoyed cumulatively with the plaintiff’s entitlement to common law damages. The court was also required to consider whether the legislative intent suggested that the statutory benefits should be cumulative, and whether there was any error in the primary judge’s conclusion that such payments should not be taken into account in assessing the damages.
The court found that there was no error in the primary judge’s conclusion that payments made by the Commonwealth outside the preclusion period were not repayable to the Commonwealth and therefore did not need to be taken into account in the assessment of common law damages. The court reasoned that the cardinal principle of damages was not contravened by this approach, and that the primary judge correctly interpreted the legislative intent as allowing the statutory benefits to be enjoyed cumulatively with the plaintiff’s entitlement to damages. The appeal was dismissed.
The final orders of the court were that the appeal was dismissed, with no orders for costs. The court held that the primary judge's approach to the assessment of damages was correct and that the statutory benefits in question did not need to be deducted from the damages awarded.
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