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Comensoli v WQA

Comensoli v WQA

Case [2024] VSCA 104 23 May 2024

Compensatory Damages

Limitation Periods

Cumulative Benefits

Civil Litigation & Procedure

Tort Law

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Comensoli v WQA

Details

AGLC: Comensoli v WQA [2024] VSCA 104
Case: [2024] VSCA 104
Decision Date: 23 May 2024

CaseChat Overview and Summary

The appeal heard by the court involved Comensoli, the appellant, versus WQA, the respondent. The dispute centred around the calculation of personal injury damages, specifically whether payments made by the Commonwealth under the Social Security Act 1991 (Cth) should be taken into account when assessing the damages owed to the appellant. The matter was heard in the Federal Court of Australia.

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.

Orders