O'Connor v Comensoli

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2020 00163

STEPHEN O’CONNOR	Plaintiff
v
ARCHBISHOP PETER A COMENSOLI	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	8–17, 23 February, 1–2 March 2022
DATE OF JUDGMENT:	9 June 2022
CASE MAY BE CITED AS:	O’Connor v Comensoli
MEDIUM NEUTRAL CITATION:	[2022] VSC 313

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INSTITUTIONAL LIABILITY — Personal injury — Historical abuse of a child by a priest — Liability of the Archdiocese for the unlawful conduct of an assistant priest — Breach of duty of care — Foreseeability of risk of harm — Vicarious liability — Nature of relationship — Whether vicarious liability arises on the relationship between Archdiocese and priest — Whether Archdiocese vicariously liable — Structure of Catholic Archdiocese of Melbourne — Assessment of damages — Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) — Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117 — Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 — Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 — Prince Alfred College Incorporated v ADC (2006) 258 CLR 134 — DP (a pseudonym) v Bird [2021] VSC 850.

PRACTICE AND PROCEDURE — Admissibility of evidence — Tendency — Whether asserted tendencies are relevant — Whether evidence is otherwise relevant — Evidence Act 2008 (Vic) s 97 — DP (a pseudonym) v Bishop Bird [2021] VSC 453 — Evidence of earlier complaint of abuse by priest — Person who made representations deceased — Whether probative value outweighed by prejudice to defendants — Evidence Act 2008 (Vic) s 135 — Admissions — Representations made by former Archbishop of Melbourne in a statement and evidence to Royal Commission into Institutional Responses to Child Sexual Abuse — Whether representations are admissions made with authority of Archdiocese — Royal Commissions Act 1902 (Cth) s 6DD not applicable — Evidence Act 2008 (Vic) ss 48(1)(c), 81, 82, 87, Dictionary — Regina v Cassar; Regina v Sleiman (Judgment No 17) [1999] NSWSC 436 — Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto (2012) 208 FCR 346 — Schulz v The Queen [2019] VSCA 179.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	F McLeod SC and A Dimsey	Rightside Legal
For the Defendant	J Rush QC and G Grey	Corrs Chambers Westgarth

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

O’Connor’s family history........................................................................................................... 4
Gannon’s history........................................................................................................................... 5
The abuse........................................................................................................................................ 5
The first abuse................................................................................................................................ 6
The second abuse.......................................................................................................................... 8
The third abuse.............................................................................................................................. 8

Evidentiary rulings............................................................................................................................ 8

Tendency notices......................................................................................................................... 10
Evidence admissible as relevant to Gannon’s role................................................................. 14
The BTS documents.................................................................................................................... 15
Analysis........................................................................................................................................ 22
Evidence of an admission.......................................................................................................... 29

The Legal Identity Act..................................................................................................................... 35

Submissions................................................................................................................................. 35
Defendant........................................................................................................................... 35
O’Connor............................................................................................................................ 36

The Act.......................................................................................................................................... 37
Extrinsic materials....................................................................................................................... 39
Analysis........................................................................................................................................ 41

Further evidence relevant to direct and vicarious liability...................................................... 43

The Archdiocese.......................................................................................................................... 43
The Archbishop........................................................................................................................... 45
Training and ordination............................................................................................................. 49
Priests............................................................................................................................................ 51
Parish priests................................................................................................................................ 54
Assistant priests........................................................................................................................... 55
Remuneration and support........................................................................................................ 58
Parish financial arrangements................................................................................................... 59
Parish schools.............................................................................................................................. 60
Child abuse.................................................................................................................................. 60
Other lay evidence...................................................................................................................... 64
Witness 2............................................................................................................................. 64
Gannon interview.............................................................................................................. 65

Tendered documents.................................................................................................................. 66

Structure of the Archdiocese.......................................................................................................... 67

Direct liability................................................................................................................................... 68

Vicarious liability............................................................................................................................ 74

Were Father Connellan and Gannon employed by the Archdiocese or the Archbishops? 76
Does vicarious liability arise on the non-contractual relationship between the priests and the Archdiocese?...................................................................................................................... 78
Step one — Does vicarious liability arise in the relationship between the Archdiocese and the priests?................................................................................................................................. 90
Step two —Did the priests’ role provide the opportunity and occasion for the abuse — Prince Alfred College?..................................................................................................................... 96

Assessment of damages................................................................................................................ 101

After the abuse........................................................................................................................... 101
Suicide......................................................................................................................................... 102
Secondary school....................................................................................................................... 102
Alcohol and cigarettes.............................................................................................................. 103
History after leaving school..................................................................................................... 103
New Zealand.................................................................................................................... 105
Returning to Australia.................................................................................................... 105

The disability support pension, alcohol abuse and back injury......................................... 108
Country music........................................................................................................................... 112
Cancer......................................................................................................................................... 114
Alcohol consumption as an adult........................................................................................... 115
Gannon....................................................................................................................................... 115
The Melbourne Response......................................................................................................... 115
Current situation....................................................................................................................... 116
Jennifer Hutchinson.................................................................................................................. 117
Francis Eyre................................................................................................................................ 119

Medico-legal evidence.................................................................................................................. 119

David Jones................................................................................................................................ 119
Dr Tagkalidis............................................................................................................................. 120
Dr Entwisle................................................................................................................................. 122
Dr Joseph Slesenger.................................................................................................................. 124

O’Connor’s credit........................................................................................................................... 125

Loss of earning capacity evidence.............................................................................................. 129

Mark Thompson........................................................................................................................ 129

Damages........................................................................................................................................... 132

Submissions............................................................................................................................... 132
Defendant......................................................................................................................... 132
O’Connor.......................................................................................................................... 134

Jones v Dunkel inferences.......................................................................................................... 135
Analysis and findings relevant to damages.......................................................................... 136

Pain and suffering.......................................................................................................................... 140

Loss of earning capacity................................................................................................................ 140

Submissions............................................................................................................................... 140
Defendant......................................................................................................................... 140
O’Connor.......................................................................................................................... 141

Analysis...................................................................................................................................... 142

Medical and like expenses........................................................................................................... 146

Melbourne Response payments.................................................................................................. 146

Submissions............................................................................................................................... 146
Defendant......................................................................................................................... 146
O’Connor.......................................................................................................................... 147

Analysis...................................................................................................................................... 147

Summary of damages award........................................................................................................ 148

HIS HONOUR:

Introduction

Between 1968 and 1970 the plaintiff, Stephen O’Connor, was sexually abused on three occasions by Desmond Gannon.

At the time of the abuse, O’Connor was a pupil at the Catholic primary school in Kilmore, and served as an altar boy at the local church. Gannon was a Catholic priest in the Archdiocese of Melbourne appointed as assistant priest in the Kilmore parish.

O’Connor brings this proceeding claiming damages for injuries he suffered as a result of the abuse. He alleges there was negligence by the Archdiocese which was a cause of the abuse and his injuries, and that the Archdiocese is vicariously liable for the abuse perpetrated by Gannon.

The defendant is the current Archbishop of the Archdiocese. Because the Archdiocese is unincorporated, the defendant is named as a proper defendant under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (‘Legal Identity Act’).

Gannon was ordained as a priest in the Archdiocese in 1956, and was then appointed to parish positions. Part of O’Connor’s case involved a claim that in about 1960, when he was assistant priest in the Glenhuntly parish, Gannon sexually abused a young Catholic boy, referred to in this proceeding as BTS, and that BTS and his mother reported the abuse to Father Connellan, the parish priest at the adjoining Ashburton parish (the ‘BTS complaint’), who dismissed them and took no action. O’Connor claimed that Father Connellan’s knowledge of the report of abuse by BTS was the knowledge of the Archdiocese, or alternatively that the Archdiocese was directly or vicariously liable for Father Connellan’s failure to report the abuse and take action. O’Connor argued that a reasonable response to the BTS complaint would have prevented him being abused by Gannon. The defendant submitted the documents relating to the BTS complaint were inadmissible, and even if admitted did not establish BTS and his mother made a report of sexual abuse by Gannon to Father Connellan. Alternatively, the defendant argued that the Archdiocese was not directly or vicariously liable for any failure by Father Connellan to respond reasonably to the BTS complaint.

O’Connor also claimed the Archdiocese was vicariously liable for the abuse on the basis that Gannon was employed by, or in a relationship that was akin to employment with, the Archdiocese. Relying on the decision of J Forrest J in DP (a pseudonym) v Bird (‘DP v Bird’),[1] O’Connor submitted that the role to which Gannon was appointed by the Archdiocese placed him in a position of power and intimacy vis-à-vis O’Connor such that the apparent performance of the role as assistant priest gave the occasion for him to abuse O’Connor. In response the defendant submitted that Gannon was not employed by the Archdiocese, the decision in DP v Bird was wrongly decided and should not be followed, that binding authority led to the conclusion that vicarious liability did not arise on the relationship between the Archdiocese and the priests, and the case brought by O’Connor must fail. The defendant further argued that no special role was assigned to Gannon that led to the abuse, which was the product of evil criminal intent not associated with the apparent performance by him of his role as assistant priest.
[1][2021] VSC 850.

The Archdiocese cannot be sued at common law because it is an unincorporated association or body, and does not exist as a juridical entity.[2] The parties disagreed about whether, and if so to what extent, the common law position has been modified by the Legal Identity Act. O’Connor submitted that for the purpose of determining his claim the Archdiocese was to be treated as if it were a corporation now and historically, giving him the same rights against the Archdiocese as if he were suing an incorporated entity. The defendant submitted that the Legal Identity Act is directed only to the issue of recovery of damages, and does not have the effect of retrospectively making the Archdiocese an incorporated entity capable of being held directly or vicariously liable for abuse perpetrated by Gannon against O’Connor between 1968 and 1970. Further, the defendant submitted that the Archdiocese could not be found to owe a duty of care to O’Connor, that it did not have a role or function in relation to the appointment, supervision or direction of priests, and could not be found directly or vicariously liable for the conduct of Gannon or Father Connellan.
[2]Trustees of the Roman Catholic Church v Ellis & Anor (2007) 79 NSWLR 565, 576 [46]–[47] (Mason P) (‘Ellis’).

The defendant admitted that O’Connor was owed a relevant duty of care by Archbishop Mannix, who was Archbishop of the Archdiocese when Gannon was ordained, and when BTS allegedly made the report to Father Connellan, and by Archbishop Knox, who appointed Gannon to the role of assistant priest in the Kilmore parish. The defendant argued there was no basis upon which he could be held legally responsible for any direct or vicarious liability established by O’Connor against either of the Archbishops. However, in closing submissions the defendant conceded that he would accept responsibility for any finding and award of damages made in favour of O’Connor against the Archbishops. Relying on that concession O’Connor amended his statement of claim to plead in the alternative against the Archbishops.

O’Connor’s family moved a number of times when he was a young child requiring that he change primary school. His parents separated before the abuse occurred. After leaving school when he was just 15 years old, O’Connor associated with a group of peers who drank alcohol heavily. In his late teens and 20s, O’Connor was charged with and pleaded guilty to criminal offences that were most often related to alcohol, driving and car theft. As a result he was imprisoned for periods of time, first in juvenile detention and later in adult jails. Until he turned 40 O’Connor’s history of intimate relationships, lifestyle and work history could be described as itinerant. He has not worked since his late 30s. In the mid-1990s, he was assaulted on a number of occasions, leaving him with a chronic lower back complaint. In the late 1990s, O’Connor commenced a more stable, longer term relationship. In the early 2000s, O’Connor became involved in country music as a singer, president of community music clubs, and volunteer radio presenter. In 2011, O’Connor required treatment for a squamous cell carcinoma on his left vocal cord. As a result he was unable to continue singing. It is not in issue that O’Connor suffered significant psychological injury resulting from the abuse. However, there were issues between the parties about how these matters should be reflected in any award of damages for pain and suffering and loss of earning capacity.

O’Connor’s family history

O’Connor was born in 1957. He is the oldest of five siblings. His youngest brother was born with significant health problems, and has since died.

When O’Connor was a young child his father worked as a ganger for the railways. The family lived in railway station houses, and moved frequently. As a result O’Connor attended a number of primary schools in his early school years.

When O’Connor was about eight or nine years old his parents separated. He said he remembered normal family arguments, and on one occasion saw his father push his mother. After they separated his mother took the children to stay with his aunt in Melbourne for a few months, before they moved to Kilmore to live with his grandparents.

O’Connor did not go to school while they were in Melbourne. In Kilmore he attended St Joseph’s Catholic Primary School, and later transferred to St Patrick’s Catholic Primary School, which was new.

O’Connor said his grandparents’ house had three bedrooms. His aunt, who was blind, also lived in the house. He said the children were able to do their homework in the lounge room.

After his parents separated O’Connor and his brother stayed with his father during school holidays.

O’Connor said he was a happy child. He enjoyed going rabbiting with his father, making billycarts and playing sport with his mates.

He said he had a lot of friends as a young boy. He loved school, and was a good student. He said he was a good little boy at school.

O’Connor said he was pretty good at football, swimming and running. They used to train at the Assumption College ground, and Ray Carroll, who coached football at Assumption College, said he was going to be an alright player, and gave him encouragement. He wanted to go to Assumption College because of its history of producing VFL players that had been coached by Carroll. O’Connor said when he was young he wanted to be a policeman.

O’Connor was recruited to be an altar boy by the nuns at the primary school. He said he respected religion and loved the church. O’Connor said he was proud of being an altar boy and proud to be a part of serving God. He was given instruction by the priest when serving.

O’Connor said you always had to respect the priest by calling him Father, or the nuns by calling them Sister. If you disrespected them they would correct you.

Gannon’s history

Gannon was born in 1929, commenced training in Corpus Christi College Seminary, Werribee in 1949, and was ordained in St Patrick’s Cathedral Melbourne in July 1956.

Gannon was appointed to the Kilmore parish as assistant priest in October 1968 where he remained until January 1971.

The abuse

O’Connor said to his knowledge Gannon did not have a special role at the school, but he always seemed to be around the school and was just like a teacher. Sometimes he would come to the school in his priest garments, and at other times he would be dressed more casually. He did not have an office at the school, but would just come over. He remembered Gannon giving religious instruction on one occasion. Gannon also talked to them when they were doing their altar boy training.

O’Connor said Gannon always seemed to be around the children’s sports, and used to drive children on a bus to a swimming pool in Broadford. He remembered travelling on the bus one day when Gannon looked straight at him in the rear-vision mirror, and that he felt it was creepy and unnatural.

The first abuse

O’Connor said one day in 1968 he was in class at school when a nun came in and said something to the teacher, who then told him he was wanted outside. The nun then said to him that Gannon was going over to Lancefield to pick up some typewriters, and asked if O’Connor would like to go. O’Connor said he felt he had little choice, and agreed to go and give Gannon a hand. He thought this happened around 2pm, close to the end of the school day.

O’Connor said after he got into Gannon’s car and they had driven off, he noticed they were not travelling towards Lancefield. Gannon drove down a dirt road, then another, and they were ‘way out in the whoop-whoops’ when he stopped the car. Gannon said he knew O’Connor was sad about his parents breaking up, and that he wanted to talk to him about sex. Gannon told him to take his pants down, then pulled down his underpants and started fiddling with O’Connor’s penis. He said to O’Connor ‘[t]his is your penis, and these are your testicles’. He then instructed O’Connor to pull up his pants, and said they would go to a quieter place.

Gannon drove down another dirt road, got out of the car and pulled out a picnic blanket. He said to O’Connor ‘[s]o, we’ll just go in here and we can talk in here where it’s nice and quiet’. They walked to a clearing, where Gannon laid the blanket down, and said ‘[n]ow, we’ll talk some more about sex and I’d like you to take your clothes off’. They both took off their clothes and lay on the blanket. Gannon then said ‘I’m going to teach you now how to tongue kiss’. O’Connor said Gannon kissed him, stuck his tongue right in O’Connor’s mouth and sucked O’Connor’s tongue back into his mouth. Gannon did this a few times, then masturbated. O’Connor was thinking ‘I want to go home’. Gannon made O’Connor touch his penis, then instructed him to lie on his stomach. O’Connor said Gannon was on top of him and tried to insert his penis into O’Connor’s bottom, it hurt, and he yelled ‘[j]ust stop! Just stop it!’. O’Connor said Gannon got his penis in a little way, and it felt like ‘a hot iron was stuck to me in the back’. He started crying and said ‘[s]top! It’s hurting!’. Gannon then closed O’Connor’s legs, put his penis between them and continued to thrust. He could hear Gannon panting like a dog, and he just kept going. O’Connor said he wished he could disappear. After Gannon was finished, O’Connor said ‘[w]hat’s going on?’ and ‘[t]ake me home’. He wanted to run, but there was nowhere to go. He could not stop crying and shaking. He said Gannon was a priest, like God, and had just done this to him. Gannon told O’Connor to get dressed. O’Connor said he was terrified, and thought Gannon would get a shovel, kill him, and bury him with the blanket.

O’Connor said Gannon took him back to the car, and said ‘[h]ere, have a cigarette, it will calm you down’. He could not sit on the car seat because his bottom was hurting, and he had to lean to one side. O’Connor said he was ‘crying his eyes out’, and said to Gannon ‘[w] hat have you done? It’s hurting, it’s sore’. Gannon told him not to tell anyone what had happened, and said they would not believe him. Gannon said ‘[d]o you want to have a drive and stop crying?’ He replied ‘[o]kay’. Gannon said ‘[o]kay what?’, and O’Connor replied ‘[o[kay, Father’.

O’Connor said all the other children had gone home when they got back to school. He tried to ride home on his bike, but could not sit on the seat, so he stopped halfway and walked. He could not understand what had happened. He wondered whether he should say something but remembered Gannon told him not to tell anyone because they would not believe him. He thought this made sense because everyone respects a priest. When he got home he went to the toilet and saw there was blood on his underpants. He said he could not explain the blood to his nan if she saw it, so he put his underpants in the old thunderbox toilet and used a stick to poke them down the chute. He then went to the laundry and washed himself up. He said his bottom was all sticky and there was blood. He washed as best he could, then put a hankie between his bottom cheeks because he was so sore. A couple of days later, he threw the hankie in the bin.

O’Connor said after the rape, he felt he was being stalked by Gannon. Gannon often waited for him outside the primary school and offered to drive him home. He tried to hide from Gannon, or to arrange to walk with another boy for protection.

The second abuse

On the second occasion he was abused by Gannon, O’Connor was in the church getting dressed to serve as an altar boy. He said Gannon came over to him, gave him ‘a great big tongue kiss’, put his hands in O’Connor’s pants, rubbed his penis and testicles, and said ‘[w]e’ve got to go out for another drive Steve. You and I, go for a drive.’ The other altar boy came in and Gannon stopped. O’Connor said he felt paralysed by fear during the service and that was the last day he served as an altar boy.

The third abuse

The third abuse occurred when O’Connor and his cousin went to the Assumption College pool on a non-school day. O’Connor said Gannon was there supervising, sitting on a chair near the pump house. His cousin, who smoked, said ‘[l]et’s go and ask the priest for a smoke’. Gannon beckoned them over, and said ‘[o]kay. Well, Steve, you come into the pump house with me and I’ll give you a cigarette’. Gannon directed O’Connor’s cousin to stay outside. O’Connor said he went into the pump house because he was numb with fear of Gannon. When they went into the pump house, Gannon grabbed him and said ‘[w]e’ve got to go for another drive, Steve’. Gannon kissed him again, which he said was revolting, and grabbed him. He struggled and managed to slip out of Gannon’s grasp, and leave the pump house. He said to his cousin ‘[l]et’s go’, and left as fast as he could.

Evidentiary rulings

There were four disputes about evidence that O’Connor sought to admit and rely on.

First, in the days before trial, O’Connor filed notices under s 97 of the Evidence Act 2008 (Vic) (‘Evidence Act’) of intention to adduce evidence of witnesses who were sexually abused by Gannon in the 1960s when they were young boys, and to tender the transcript of an interview of Gannon by a person acting on behalf of the Archdiocese conducted at Sale jail in July 1995 as evidence that Gannon had a tendency to act in a particular way. The defendant objected on the basis that he was prejudiced by the late service of tendency notices that did not comply with the requirements of the Evidence Act and reg 8 of the Evidence Regulations2019 (Vic), and that the evidence was not relevant to a fact in issue, or not sufficiently probative to justify its admission.

Second, O’Connor sought to rely on the same evidence for a non-tendency purpose. O’Connor submitted the evidence was relevant to establish Gannon’s role as an assistant priest in the Archdiocese. The defendant submitted the relevant fact in issue on the pleadings was Gannon’s role as an assistant priest in the Kilmore parish. Because the evidence related to other parishes, it was not relevant to the fact in issue and should not be admitted.

Third, O’Connor sought to tender three documents to establish that BTS was sexually abused by Gannon in about 1960, the BTS complaint occurred and Father Connellan rebuffed BTS and his mother. The BTS documents are:

(a) police statement of BTS dated 28 August 1996;

(b) letter allegedly written by BTS’s mother dated 26 February 1996;

(c) transcript of interview of BTS by Peter O’Callaghan of the Melbourne Response dated 3 April 1997;

(the ‘BTS documents’).

BTS, his mother and O’Callaghan are now deceased.

The defendant submitted the BTS documents should not be admitted because the probative value of the evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to it.[3]
[3]Evidence Act2008 (Vic) s 135.

Fourth, O’Connor sought to tender a witness statement and transcript of evidence of Archbishop Hart to the Royal Commission into Institutional Responses to Child Sexual Abuse (the ‘Archbishop Hart evidence’). O’Connor argued the evidence was an admission by Archbishop Hart relevant to the BTS complaint. The defendant objected to tender of the Archbishop Hart documents on four grounds: First, the evidence was not an admission; second, if the evidence was an admission, it was not made by the defendant as a party to the proceeding; third, evidence to the Royal Commission was rendered inadmissible by s 6DD(1) of the Royal Commissions Act1902 (Cth) (‘Royal Commissions Act’); and fourth, evidence of the representations by Archbishop Hart upon which the plaintiff seeks to rely is rendered inadmissible by s 69(3) of the Evidence Act2008 (Vic).

Tendency notices

Two of the witnesses relied on for a tendency purpose gave evidence, by agreement, subject to my ruling as to admissibility. The first witness (Witness 1) said his family, who lived in Wonthaggi, were befriended by Gannon who visited them regularly. Witness 1 said he was sexually abused on one occasion when Gannon accompanied he and other member of the family on a trip to Sydney to see his sister take her vows as a nun.

The second witness (Witness 2) said when he was a young Catholic boy in Braybrook in the early 1970s he was sexually abused by Gannon, who was the parish priest.

In the transcript of interview Gannon gave some detail of his role as assistant priest, or the way that he performed it, at the Braybrook, Ashburton and Glenhuntly parishes and on a summer camp with boys. Other than boys that were discussed during the interview Gannon said there may be another 10 boys that he abused at the Alphington, Glenhuntly, Ashburton, Braybrook and Kilmore parishes.

Also appended to the tendency notice were three statements to police by persons who said they were abused by Gannon in the 1960s. One of those persons was BTS. BTS’s police statement is admissible under s 63 of the Evidence Act if it meets the test of relevance. The other two persons were unidentified, and their availability to give evidence was not established. In the absence of evidence about availability, the two remaining police statements are not admissible.

The tendency rule is set out in s 97 of the Evidence Act:

(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)Subsection (1)(a) does not apply if—
(a)the evidence is adduced in accordance with any directions made by the court under section 100 …

O’Connor submitted that if there was any deficiency in the tendency notices the Court should exercise the discretion in s 100 of the Evidence Act to allow the evidence.

The relevant principles were recently considered by J Forrest J in DP v Bird, where his Honour said:

For the purpose of the adducing of tendency evidence in a civil proceeding of this type I consider that the following conditions must be met:
•First, the tendency and the fact (or facts) in issue which it is said to prove must be identified. That evidence, if accepted, must rationally affect the assessment of the probability of the existence of the fact (or facts) in issue.
•Second, the tendency evidence (which should be viewed as a whole, and not piecemeal, and in light of the other evidence adduced in the case ) must be capable of sustaining the conclusion that the relevant person had an identified tendency to:
(a) act in a particular way; and/or
(b) have a particular state of mind.
•Third, the tendency must be one of some specificity and not at a high level of generality. This means that a feature or features of the tendency evidence must link that evidence with the allegation(s) in the proceeding.
•Fourth, it is necessary to establish that the tendency evidence is of significant probative value. So it is fundamental that the evidence increases the likelihood of the asserted conduct of the relevant person as alleged to such an extent that it is of significant probative value.
•Fifth, and for completeness, the common law test for propensity is to be ignored.
•Finally, if the tendency evidence is shown to have significant probative value, this (in an appropriate case) must not be substantially outweighed by the danger that the evidence might either be unfairly prejudicial to a party; be misleading or confusing; or, cause undue waste of time in the proceeding, such that the court is persuaded to exercise its discretion to exclude the evidence irrespective of its admissibility.[4]

[4]DP (a pseudonym) v Bishop Bird [2021] VSC 453, [20] (citations omitted).

O’Connor alleged the tendency evidence was relevant to the issue of vicarious liability which is pleaded in the amended statement of claim as follows:

By reason of the appointment, supervision and control of Father Gannon by the Defendant, as well as Father Gannon being a representative of the Defendant, the Defendant is vicariously liable for the sexual abuse.
PARTICULARS
(i)The Plaintiff was a child who was in a position of extreme vulnerability to acts of sexual abuse;
(ii)The Defendant placed Father Gannon in a position of trust, control, and power over children in the Parish, including the Plaintiff;
(iii)The Defendant gave Father Gannon the authority and opportunity to achieve intimacy with children in the Parish, including the Plaintiff;
(iv)The abuse occurred in the course or scope of Father Gannon’s role as Assistant Priest of St Patrick’s Parish.

Gannon’s alleged tendencies were expressed in the notices as follows:

(a) to act in a particular way, namely, to access and abuse male child parishioners under the guise of giving them sexual education;

(b) to act in a particular way, namely, to target male child parishioners who were emotionally vulnerable in some way, for example because they came from single parent families, and sexually abuse them;

(c) to act in a particular way, namely, to target male child parishioners who were altar servers and sexually abuse them;

(d) to act in a particular way, namely, to target male child parishioners by isolating them from other adults.

In oral submissions, counsel for O’Connor articulated the application as follows:

Your Honour, I have already addressed the issue that the tendency of Father Gannon to take advantage of his position and abuse students, altar boys, just as he did with other boys, increased the risk of harm to the complainant. In other words, his role as a priest placed him in the position of authority and intimacy, vis-à-vis, the plaintiff that gave him the opportunity and enabled him to take advantage of the plaintiff, just as it did with other boys. So we say this material is probative of the issue in dispute, which is the vicarious liability of the defendant for Father Gannon.

Counsel asserted that the common threads which would appear from the tendency evidence included the use of the church environment for the initial contact; the pre-text of the legitimate task being sex education or an errand; the isolation of the child; initial interactions commencing at school, the church and away from those environments; that the children concerned were members of the church community, including serving as altar boys; and pursuit by Gannon of the boys away from the church. Counsel submitted that ‘those modes of operations of Father Gannon, placing himself in a position of trust, and authority and misusing that role, is relevant to the question of vicarious liability in this case.’

Gannon’s tendency to act in a particular way may be relevant and significantly probative of whether, on the occasions in issue, Gannon acted in the particular way by abusing O’Connor.[5] In other words, an established tendency may make it more likely Gannon acted in the same way by abusing O’Connor. However, the fact of the abuse, and the circumstances in which it occurred, have been admitted and are not in issue.
[5]Hughes v The Queen (2017) 263 CLR 338, 348 [16] (Kiefel CJ, Bell, Keane and Edelman JJ).

The vicarious liability claim requires consideration of the role assigned to Gannon by the Archdiocese, and the position in which Gannon was thereby placed vis-à-vis O’Connor, in order to determine whether the apparent performance of Gannon’s role as assistant priest in the Kilmore parish could be said to give the occasion for his abuse of O’Connor.[6] The focus of the inquiry is the relationship between the Archdiocese and Gannon, his role as assistant priest and the association of his conduct with that role. Whether Gannon had a tendency to act in a particular way once in the role of assistant priest is not relevant to, or at least not significantly probative of the vicarious liability issue. On that basis I reject O’Connor’s application to rely on the evidence to establish the asserted tendencies.
[6]Prince Alfred College Incorporated v ADC (2006) 258 CLR 134, 159–60 [81] (French CJ, Kiefel, Bell, Keane and Nettle JJ) (‘Prince Alfred College’).

Evidence admissible as relevant to Gannon’s role

I reject the defendant’s submission that evidence of witnesses describing Gannon’s role as an assistant priest in other parishes in the Archdiocese could not rationally affect, directly or indirectly, the assessment of Gannon’s role as an assistant priest in the Kilmore parish. A great deal of evidence was led in this case by both parties, without objection, about the role of an assistant priest in the Archdiocese. Canon Law expert Dr Rodger Austin, who said he had no particular knowledge of the operation of the Archdiocese, gave detailed evidence about Canon Law and the roles of Archbishop, parish priest and assistant priest. Two priests of the Archdiocese, Father Dillon and Father Caddy, neither of whom professed particular knowledge of the Kilmore parish in the late 1960s, or of Gannon’s appointment there as assistant priest, both gave detailed evidence about the operation of the Archdiocese and the roles of priests. There was no evidence that Gannon’s appointed role as assistant priest varied in any material way between parishes. I conclude the evidence of Witness 2 who said he was abused by Gannon in Braybrook parish and the transcript of interview with Gannon are admissible because that evidence could rationally affect assessment of Gannon’s role as an assistant priest in the Kilmore parish.

The interaction between Witness 1 and Gannon did not take place within the Archdiocese, or while Gannon was undertaking his role as assistant priest. I conclude that the evidence of Witness 1 inadmissible.

The BTS documents

The copies of the three BTS documents that the plaintiff seeks to tender are partially redacted to obscure names and other identifying information.

In his police statement dated 28 August 1996, BTS said:

When I was roughly 8 - 10 years old, I can’t remember exactly how old I was but I was young. I was living with my mother, [REDACTED] in a flat at [REDACTED] Ashburton. I went to St Michaels School in Ashburton, and to the Catholic Church, St Michaels, Ashburton, I think this was around 1960, I remember the residential Priest was Father CONNELLAN. In the Parish I’m not sure what was going on but there was always someone different there. Father CONNELLAN was old and pretty crook a lot of the time so I suppose the other Priests came in to take over when he couldn’t take services.

BTS then described his initial contact with Gannon:
The first contact I had with Father GANNON was when it was announced from the pulpit one Sunday, I think in winter, that GANNON was going to be giving religious instruction and sex education for boys. My mother and I went to find out what it was about and I had to go after school, I think about twice a week. There were two other boys also going. They were from flats in Alamain, but I wouldn’t have a clue of their names now. These classes were for boys without fathers.
Father GANNON initially showed us films and talked about sex. There was no religious content, it was just about sex education.

Later in the statement BTS described being sexually abused by Gannon. Towards the end of his police statement BTS said:
I have not really been able to tell anyone about it. My mother knew it happened, but I haven’t told anyone except now, the Police about what really happened. ...
I never told anyone at the time because of his/position as a Priest and I thought that he was teaching me sex education. He also said to me on one occasion that even if you tell anyone they will never believe you, so I didn’t tell anyone.

In October 1996, the Archdiocese established the Melbourne Response, an initiative to respond to complaints of abuse committed by priests of the Archdiocese or any religious or lay person working within the Archdiocese. The Melbourne Response involved consideration of applications by persons who had been abused. The independent commissioner and compensation panel appointed as part of the Melbourne Response operated independently of the Archdiocese, and made recommendations to the Archbishop on whether applications should be accepted, and as to compensation and counselling services. O’Callaghan was appointed as independent commissioner of the Melbourne Response.

BTS applied to the Melbourne Response in early 1997. On 3 April 1997, he attended an interview with O’Callaghan in relation to his application. In the interview O’Callaghan referred to BTS’s police statement, and asked when he first decided to go to the police. BTS responded:

Well, I really didn’t. I went to the Police when I was 7 years old. Between 7 and 10 years old, something like that when the thing happened and nothing was done about it then and I just got on with my life then, and my mother went to Broken Rights I think it was, and they’re the ones got onto me and then [REDACTED], a Police officer.

The following exchange took place during the O’Callaghan interview:

POC[7]: You’d told your mother about it.
[7]‘POC’ is O’Callaghan.
[REDACTED] My mother knew at the time.
POC:Then did you say you were taken to the Police or you went to the Police when you were 7 or 8 years old.
[REDACTED] Well my mother took me to the [REDACTED] Police Station when I was a young fellow and basically we were told if we were to go on with it my life would have been Hell and um, the doctor I saw at the time, he was a Catholic, practising Catholic and he basically didn’t want to go on with it either.
POC:Do you remember his name.
[REDACTED] Dr. [REDACTED] One of the other doctors
POC:Is he still in practice is he.
[REDACTED] Oh yes, yes.
[REDACTED] [REDACTED]
POC:[REDACTED]
[REDACTED] [REDACTED]
POC:Not surprising there are a number of [REDACTED] doctors.
[REDACTED] There was another doctor there he wanted to go on with it too, but they both got together and decided not go.
POC:Do you remember the Police you saw at the time.
[REDACTED] Yes, I think his name was Detective [REDACTED] or something like that, that was a long time ago, that was at [REDACTED] Police Station.
POC:That would be about [REDACTED] years ago.
[REDACTED] Yes.
POC:And do you remember, they wouldn’t have taken a statement from you at that age I suppose, would they, but you talked to them did you. You talked to the Police and told them what happened.
[REDACTED] Basically, how the story goes is, I was only a young fellow [REDACTED] my mother, it can’t be all bad because Father Gannon’s doing it to me.
POC:[REDACTED]
[REDACTED] That’s right, yes.
POC:So it was then that in response to that you said, well this is what Father Gannon’s been doing to me, or words to that effect.
[REDACTED] That’s right.
POC:Was it the first time your mother had learn’t of it.
[REDACTED] Yes, just then.
POC:[REDACTED]
[REDACTED] That’s what happened, that’s how it all came to light.
POC:But then, they, then nothing happened to you, they didn’t charge you with anything or
[REDACTED] No, a [REDACTED], who was very high up in the St. Michaels Catholic Church at that stage, he picked me up from the Catholic Church and we went back to see Father Canallan and Father Canallan basically told my mother well, there’s other men been in your flat and what have you, there hasn’t been, and it went on from there and it was all over, and that was it, it went nowhere.
POC:Well what did, did you tell Father Canallan what Father Gannon had done to you.
[REDACTED] Yea.
POC:What did he say to that.
[REDACTED] Well he just called me a liar and what have you and that was it, and then after awhile Father Gannon wasn’t there any more he just seemed to have disappeared.
POC:What year was this, can you identify the year.
[REDACTED] No, not really. I think I was in about [REDACTED] grade at St. Michaels at the time.
POC:You said in your Police statement that it was when you were roughly 8 to 10 years old, can’t exactly remember how old I was but I was young. When you made this statement to the Police last August did you tell them about having been to the Police previously when you were 7 or 8 or 8 to 10.
[REDACTED] Oh yes.
POC:But they left that out of this statement though. It’s not, it’s not, it may not have been relevant as they saw it I suppose.
[REDACTED] Well [REDACTED] told me that he had gone to the [REDACTED] Police Station but the records would have been that old he had no hope of getting anything, so.
POC:Yea. Um, but did you tell [REDACTED] really what you’ve told me today.
[REDACTED] Oh yes.

It is evident from the O’Callaghan transcript that an unidentified third person was present during the interview by O’Callaghan with BTS.

During the interview O’Callaghan referred to a lengthy discussion he had had with BTS’s mother, and to a letter she had written which he noted was dated 26 February 1996. BTS said that he had asked his mother to write something, and that she wrote the letter in 1997, at the same time that he wrote a statement. I conclude BTS’s mother wrote the letter to support his Melbourne Response application, and that the date on the letter is an error.

The brief handwritten letter is addressed ‘To whom it may concern’. The letter commences with ‘Father Gannon first came to my home and ask if he could give Religious instructions.’ The letter briefly describes the mother picking BTS up from the police station, and him saying when they got home: ‘It can’t be wrong mummy, as Father Gannon has been doing it too [sic] me.’

The mother then wrote:
My local Doctor was called. He examined him. The worst part was no one would believe me. I recalled then why my bed was wet. I got rid of the bed, and bought a new bed. The parish Priest accused me of having sex in front of my child. I told him no man had ever been in my bed.

O’Connor submitted the BTS documents were relevant in three ways. First, they were evidence that Father Connellan knew of allegations concerning Gannon’s paedophile behaviour. O’Connor argued that because of the structure of the Archdiocese and the status and role of a parish priest within it Father Connellan’s knowledge of Gannon’s behaviour constituted constructive knowledge of the Archdiocese.

Second, Father Connellan failed to act in accordance with Canon Law and the conditions of his appointment as parish priest by failing to report the BTS complaint to his superiors. It was submitted, taken together with other evidence that priests in the Archdiocese were inadequately trained in this regard and not informed about the requirements of Canon Law concerning the sexual abuse of minors, and the processes to follow to deal with those complaints, the BTS documents supported a finding of negligence against the Archdiocese.

Third, Father Connellan was an employee of the Archdiocese, or in a relationship akin to employment, such that the Archdiocese should be held vicariously liable for conduct by him in the apparent performance of his role as parish priest. It was submitted that the Archdiocese should be held vicariously liable for Father Connellan’s negligent failure to report the BTS complaint.

The defendant submitted the BTS complaint was part of O’Connor’s pleaded case in the statement of claim filed in February 2020. BTS died in November 2020. No attempt was made by O’Connor prior to BTS’s death to clarify with him the inconsistencies and inaccuracies in the BTS documents. The defendant is now precluded from enquiring into these matters. Further, the level of inconsistency and inaccuracy, combined with the fact that the documentary evidence cannot be explained or challenged, mean that it is of little probative value. The defendant submitted the documents are an unreliable basis on which to prove the facts O’Connor seeks to establish.

The defendant submitted there were the following issues going to the reliability of the BTS evidence:

(a) BTS could not recall how old he was when he was abused by Gannon.

(b) There is no evidence, and now no ability to check, about whether Gannon played any role in the Ashburton parish when he was assistant priest in Glenhuntly in 1960.

(c) There is uncertainty about the identity of other priests who assisted Father Connellan in the Ashburton parish at the time.

(d) BTS recalls Father Connellan as being ‘old and pretty crook a lot of the time’. In fact Father Connellan was only 51 years of age in 1960.

(e) There is no evidence about when BTS and his mother went to find out about the proposed sex education lessons, who they spoke to or what they were told.

(f) BTS refers to three boys attending the classes with Gannon. The other two boys are not identified, and in 1997 when he was interviewed by O’Callaghan he could not recall their names. The other two boys, if identified and located, could have provided corroborative evidence as to who gave the classes, the subject matter of the instruction, what occurred and for how long.

(g) Other persons to whom BTS allegedly reported the abuse are not identified, and it is unknown if they were available to give evidence at trial.

(h) It is not known whether BTS or his mother made a statement to police at the time.

(i) The assertion by BTS in his police statement that apart from his mother he told no one about being sexually abused by Gannon is inconsistent with the O’Callaghan transcript, where it is asserted BTS told his mother, police, a doctor and Father Connellan.

As to the letter, the defendant submitted:

(a) It is unsigned.

(b) The letter was written six months before BTS made his statement to police. The purpose of the letter is unclear.

(c) The timing of events described is completely unclear.

(d) There is an inconsistency between the letter and BTS’s evidence about the circumstances that led to the contact with Gannon.

(e) The letter provides an account of BTS being picked up by police, which does not feature in BTS’s police statement.

(f) Reference in the letter to the circumstances leading to the need to buy a new bed does not feature in the evidence of BTS.

(g) It does not name the parish priest, or say that he was told about the abuse of BTS.

As to the O’Callaghan transcript, the defendant submitted:

(a) Given the inability to identify the number of attendees at the Interview, the Defendant is unable to scrutinise the true author of the representations;
(b) The redacted names of parties other than Mr O’Callaghan and BTS prevent the Defendant from being able investigate whether BTS’ disclosure of the abuse to these various persons included the disclosure of a report to Father Connellan;
(c) For many of the statements made, there is a limited ability to ascertain any temporal context underpinning the statements. BTS is unable to indicate the time or location of his allegations, or his report. This is of particular significance in circumstances where these contextual matters are contested.

The defendant submitted that neither BTS’s police statement nor the letter contained a direct statement that the abuse was reported to Father Connellan. The inconsistencies and uncertainties in those documents have the effect that they cannot be accepted as corroborative of one another in the absence of oral evidence from those witnesses. The police statement and the letter do not provide a basis upon which it can be concluded that BTS was abused by Gannon in 1960 and that Father Connellan was informed of that fact.

The defendant submitted he was prejudiced by an inability to investigate and test the evidence in the O’Callaghan transcript because the unidentified attendee was not called to give evidence and the names of relevant persons were redacted.

Analysis

The defendant ultimately accepted the police statement and letter are admissible under s 63 of the Evidence Act, and the O’Callaghan transcript under s 69. However, the defendant submitted the court should exercise the discretion to exclude the documents under s 135 of the Evidence Act.

The consideration of whether the evidence should be excluded requires weighing the probative value of the evidence against the danger of unfair prejudice that might arise from admitting it. Because the danger of prejudice must substantially outweigh the probative value, the defendant bears a heavy onus of showing that the evidence should be excluded.

The first step in the analysis is to consider the probative value of the evidence, which is defined to mean: ‘The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.’[8]
[8]Evidence Act (n 3) Dictionary pt 1 (definition of ‘probative value’).

Assessment of the probative value of the evidence is to be made in conjunction with all of the evidence adduced at trial.[9]
[9]IMM v The Queen (2016) 257 CLR 300, 313–14 [45] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’); Director of Public Prosecutions (Vic) v Wearn [2018] VSCA 39, [14], [48].

For the purposes of the analysis, the evidence is to be regarded as both credible and reliable.[10]
[10]IMM (n 9) 313 [43]–[45] (French CJ, Kiefel, Bell and Keane JJ).

The evidence is hearsay. Therefore, the assumption of credibility and reliability applies to the evidence of the out of court representation, not to the representation itself.[11] This means it is to be assumed that the BTS documents are credible and reliable in that they accurately record the representations they contain. However, the credibility and reliability of the representations is not assumed for the purposes of the analysis.
[11]Ibid 320 [73] (French CJ, Kiefel, Bell and Keane JJ).

I have already found that the letter was written by BTS’s mother in early 1997 in relation to BTS’s application to the Melbourne Response. I conclude the letter reliably records what BTS’s mother wrote about his abuse by Gannon and subsequent related events.

On my reading of the O’Callaghan transcript, despite the redactions and the presence of an unidentified third person, it is clear that the responses to O’Callaghan are made by BTS in relation to how the abuse by Gannon came to light and who was told about it. I conclude the O’Callaghan transcript reliably records what BTS said about the matters discussed.

The evidence is centrally relevant in the ways submitted by O’Connor to the direct and vicarious liability cases. Unless the evidence is admitted, those aspects of O’Connor’s case are likely to fail.

The real issue in contention was whether BTS and his mother reported the abuse to Father Connellan. The only basis for concluding that he did is the O’Callaghan transcript, read together with the police statement, the letter and the Archbishop Hart evidence that I will come to.

In the police statement, BTS said that at the time he was abused he told no one other than his mother. He went on to explain why. In the O’Callaghan interview, BTS said he told ‘Father Canallan’ what Gannon had done to him. The question is the extent to which this inconsistency, and the other matters referred to by the defendant, reduces the probative value of BTS’s evidence in the O’Callaghan transcript. That assessment must be made on the basis that BTS was not on oath when he participated in the interview, is unavailable to give evidence, and cannot be questioned about the inconsistency and other aspects of the documents.

I conclude, for the following reasons, that despite the inconsistency and the unavailability of BTS to give evidence, the documents, in particular the O’Callaghan transcript, are significantly probative of whether the BTS complaint occurred.

First, while the fact of Gannon’s abuse of BTS was not formally admitted, I do not understand it to be in issue. I note BTS told O’Callaghan that Gannon pleaded guilty to the charges of abusing him. I infer from what was said by O’Callaghan during the interview that the Melbourne Response accepted BTS was abused as alleged.

Second, the O’Callaghan transcript and the letter are consistent in the following important respects: BTS was abused by Gannon; the circumstances in which BTS’s mother came to know of the abuse; that no one believed the complaint; that the abuse occurred in the family home, and on one occasion in the mother’s bed (this is to be inferred in the case of the mother’s letter saying Gannon came to her home, and the reference to her bed); and that the parish priest accused the mother. The letter is brief, and understandably does not include full details of the events or explain the reference in the letter to the issue with the mother’s bed. However, that does not mean there is an inconsistency between the documents.

Third, in the O’Callaghan transcript BTS expressly said that he told ‘Father Canallan’ what Gannon had done. There is nothing of significance in the minor spelling error of Father Connellan’s name. There is no doubt BTS was a pupil at the Ashburton Primary School at the relevant time, that he attended the Ashburton Catholic church, and that Father Connellan was the parish priest. The only reasonable conclusion is that BTS was talking about Father Connellan.

Fourth, the statement by BTS’s mother in the letter that no one would believe her follows a description of BTS’s disclosure of abuse by Gannon, and precedes the description of her being accused by the parish priest. It is reasonably clear that BTS’s mother was complaining about the reaction of the parish priest, which must have been Father Connellan, when she made the BTS complaint. That is a further important element of consistency with BTS’s evidence in the O’Callaghan transcript.

Fifth, for reasons I will come to, the reliability of the BTS evidence is further supported by admissions by Archbishop Hart.

It is now necessary to consider what prejudice the defendant will suffer if the BTS documents are admitted into evidence. The Archbishop Hart Royal Commission documents are relevant to the defendant’s complaint that he cannot now investigate the BTS allegations. Archbishop Hart’s evidence related to seven offending priests in the Archdiocese, one of whom was Gannon. In his statement to the Royal Commission, Archbishop Hart said:

In addressing the topics much of what I say is based upon information and belief having reviewed relevant documents of the Catholic Archdiocese of Melbourne that have been produced to the Commission pursuant to summonses to produce. The documents that I have reviewed include documents of my predecessor Archbishops going back to the early 1950s.

And further:
18 It is apparent from my review of the records relating to the Parish of Doveton, and relating to the seven priests the focus of this hearing, that common features emerge which point to the failure of process and the poor handling and response to complaints which came forward to the Archdiocese which, if they had been dealt with promptly and effectively, would have prevented further abuse and suffering from occurring. These features include:
• the absence of adequate policies, processes and procedures to deal with complaints of abuse when they were received;
• where policies, processes and procedures did exist, the failure to implement and follow their requirements;
• the failure by Church leaders to listen when complaints were made and then to have those complaints investigated and acted upon;
• the failure to act upon credible information which was indicative of risk, but instead requiring ‘proof’ of allegations or the involvement of police before being willing to act;
• in some cases discouraging those who wished to make complaints from doing so;
• procrastination and an unwillingness to confront difficult decisions particularly where they involved acting against priests; and
• the failure to withdraw priests from involvement with children or from ministry when the evidence of their inadequacies or wrong doing was clear.
19 I have previously commented that the Church failed to recognise that we had paedophiles in our midst. What is now apparent to me is that there was knowledge of their existence and that we failed to act to have them withdrawn from ministry and referred to the police. I am appalled by the actions of these criminal paedophiles against the weakest and most defenceless in our community, and by our failures to act which placed children at risk of abuse.

Later in the statement Archbishop Hart said:

In preparing this statement I have reviewed the material to hand relating to the seven named offender priests as well as material relating to other complaints of sexual abuse. It is apparent that relevant pieces of information were transmitted to Archbishop Little from time to time, but there was no response or, at least, an inadequate response by him. In at least one case (Fr Baker), the response from Archbishop Little was entirely inappropriate. Certainly, none of the seven matters was properly investigated.

In his statement Archbishop Hart gave details of many complaints of abuse by Gannon made to the Archdiocese commencing in early 1993. It is evident Archbishop Hart had documents relevant to those complaints available when he made his statement. According to Archbishop Hart, the complaints were initially investigated by then Vicar-General Monsignor Cudmore. Archbishop Hart said:

244 Following his meeting with Gannon, Monsignor Cudmore appears to have spoken to Archbishop Little who suggested to Monsignor Cudmore that he ask Gannon to submit a resignation as Parish Priest on health grounds [CT JH.221 .06046.0181 at .0182]. Monsignor Cudmore also appears to have contacted Bishop Connors on 30 April 1993, who appears to have advised the Vicar General to tell Gannon that the Archbishop wanted his resignation, and to take him out of the parish. The note also says “don’t admit accusation”.
245 On 3 May 1993, Gannon sent a letter of resignation to Monsignor Cudmore [CT JH.221.06046.0158] which was accepted on 7 May 1993 by Monsignor Cudmore [CTJH.221.06046.0160] and Archbishop Little, who appointed him “Pastor Emeritus”, thereby making him eligible for remuneration and allowances. [CTJH.221.06046.0177]. Also on 7 May1993, Monsignor Cudmore appears to have spoken to Gannon [CT JH.221.06046.0176].
…
248 Gannon appears to have admitted to sexual abuse, yet his resignation was publicly attributed to health reasons.
249 Following Gannon’s resignation in 1993, the Archdiocese began to receive legal claims. Initially, the Archdiocese did not accept liability for those claims. After the Melbourne Response was commenced by Archbishop Pell, the Archdiocese of Melbourne provided compensation to at least 22 victims of Gannon. These victims were abused by Gannon from between 1954 and 1985 at the following parishes: Glenhuntly, Carnegie, Alphington, Ashburton, East St Kilda, Kilmore, Braybrook, and Rosanna East.

Specifically in relation to abuse of BTS, Archbishop Hart said:

It appears from information given to Mr O’Callaghan QC during the course of his investigations that a complaint against Gannon was made in about 1960 by the mother of a child victim to the Parish Priest at Ashburton, Fr Connellan [COM.0034.0001 .0057]. It appears that Fr Connellan rebuffed the complaint and never gave it proper consideration.

In his initial statement of claim filed in this proceeding in January 2020, O’Connor pleaded as a particular of knowledge of the Archdiocese of the foreseeable risk of sexual abuse being committed against children by Gannon:

In 1960, at which time he was the assistant priest at Glenhuntly parish, Father Gannon sexually abused a boy referred to in Royal Commission case study 35 as BTS. BTS disclosed the abuse to his mother, who then disclosed the abuse to Father Connellan. Father Connellan dismissed the complaint and took no further action.

For the following reasons I reject the defendant’s complaint that if the BTS documents are admitted into evidence he would be prejudiced by an inability to investigate and respond to the evidence. First, Gannon was a priest in the Diocese for a period of almost four decades from the mid-1950s. During that period he was subject to the supervision and direction of the Archbishop and, when he was an assistant priest, the parish priest of the parish to which he was appointed. Father Connellan was a priest in the Archdiocese for over four decades until he died in 1987.

Second, the Archdiocese has been aware for almost three decades that Gannon abused numerous young Catholic boys from the mid-1950s in parishes including Glenhuntly and Kilmore. In 1993, the Archdiocese began to receive complaints and legal claims on behalf of individuals abused by Gannon. As Archbishop Hart said, at least initially, those complaints were not properly investigated.

Third, BTS’s statement that he reported the abuse by Gannon to Father Connellan was made in early 1997. It was the Archdiocese that set up the Melbourne Response. If it chose to do so in a way that meant it was not provided with all documents and evidence relating to complaints, that was a matter for the Archdiocese. In his Royal Commission statement Archbishop Hart said:

As the Archbishop, I have the overall responsibility for the operation of the Melbourne Response, but in relation to individual claims, my role is limited to acting on the recommendations of the Independent Commissioner and the Compensation Panel, providing apologies to the victims, and authorising payments to them in accordance with the Panel’s recommendations.
Until recently, the Archdiocese did not hold detailed information about particular claims of abuse and my knowledge of the details of any victim’s abuse was limited to the amount of compensation recommended by the Compensation Panel. In recent years I have sought to address this issue by having more information about the particular person and their situation provided to me, so that a more personal apology can be sent.

It seems that the Archbishop could have arranged for certain information about complaints to be reported to him so that it could be acted upon. It would have been particularly relevant for the Archdiocese to be made aware of evidence about the earliest complaints made to it about a perpetrator so that the matter could be fully investigated, in order that appropriate remedial action could be taken both in relation to the perpetrator and more generally to prevent further abuse, and in light of the potential for legal claims.

Fourth, even if this were not so, it is apparent that the BTS documents, and other documents related to complaints of abuse by Gannon, were available to Archbishop Hart when he made his statement to the Royal Commission in 2015. There was a further opportunity for the Archdiocese to investigate, in the context of the Royal Commission, when abuse by Gannon was first reported to it.

Finally, O’Connor’s pleaded case put the defendant on notice that the claim he had to meet included the allegation of the report by BTS to Father Connellan in about 1960.

The Archdiocese has been on notice of Gannon’s offending for decades, and has had numerous opportunities to investigate its responsibility and potential legal liability to those who were abused by him as children. The Archdiocese, and therefore the defendant, is responsible for any prejudice resulting from the subject matter of BTS’s evidence not having been fully investigated. Investigation of conduct by Gannon in the various parishes to which he was appointed, and of the numerous complaints of sexual abuse of young Catholic boys by him, was very much within the power and control of the Archdiocese.

It is relevant to consider what occurred at the time of the Royal Commission. It is not known what if any further investigation about Gannon’s offences and the complaints of abuse was undertaken at the time. Whatever is the case the response of Archbishop Hart in evidence to the Royal Commission, which I conclude for reasons I will come to was given on behalf of the Archdiocese, was to accept as true the evidence of BTS, supported by his mother, that the BTS complaint occurred. O’Connor has had only a very limited opportunity to investigate these matters, and then only recently. The Archdiocese, having had decades to investigate the matter, and the much greater opportunity to do so adequately, accepted the truth of BTS’s statement.

I conclude that the probative value of the BTS documents is not substantially outweighed by the danger of prejudice to the defendant if they are admitted into evidence.

Evidence of an admission

Evidence in the Archbishop Hart documents is hearsay. O’Connor relied on the exception to the hearsay rule in s 81 of the Evidence Act:

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation—
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and
(b) to which it is reasonably necessary to refer in order to understand the admission.

Note
Specific exclusionary rules relating to admissions are as follows—
• evidence of admissions that is not first-hand (section 82)

Section 82 of the Evidence Act reads:

Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless—
(a) it is given by a person who saw, heard or otherwise perceived the admission being made; or
(b) it is a document in which the admission is made.
Note
Section 60 does not apply in a criminal proceeding to evidence of an admission.

The term ‘previous representation’ is defined as ‘a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced’. [12]
[12]Evidence Act (n 3) Dictionary pt 1 (definition of ‘previous representation’).

The dictionary to the Evidence Act provides that:

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if—
(a)the document was written, made or otherwise produced by the person; or
(b)the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.[13]

[13]Ibid Dictionary pt 2 cl 6.

In effect the document which O’Connor seeks to tender is the aural recording of Archbishop Hart’s evidence to the Royal Commission. One method by which that may be done is prescribed by s 48(1)(c)[14]:

(1)A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods—
…
(c)if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)— tendering a document that is or purports to be a transcript of the words;

[14]Schulz v The Queen [2019] VSCA 179, [44] (‘Schulz’).

Principles relevant to the operation of s 48(1)(c), summarised by Sperling J in R v Cassar; R v Sleiman (Judgment No 17), include:

(a) A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversation;

(b) No oral or other evidence is necessary to validate such a transcript, it being sufficient that it purports to be a transcript of the words.[15]

[15]R v Cassar; R v Sleiman (Judgment No 17) [1999] NSWSC 436, [7]; Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto (2012) 208 FCR 346, 353 [35]–[40]; Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 2) [2009] FCA 424, [41]–[43]; Stephen Odgers, Uniform Evidence Law (Lawbook Co, 16^th ed, 2021) 297 [EA.48.180].

The authenticity and accuracy of the transcript was not questioned.

Relevantly, s 88 of the Evidence Act provides that ‘[f]or the purposes of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.’

I am satisfied that, to the extent the transcript records admissions, they were made by Archbishop Hart in oral evidence to the Royal Commission. The recorded admissions are admissible if they satisfy the requirements of ss 81 and 87 of the Evidence Act, and are not rendered inadmissible by an exclusionary rule.[16]
[16]Schulz (n 14) [44].

The statement to the Royal Commission was signed by Archbishop Hart. I am satisfied that it is admissible if it satisfies ss 81 and 87 of the Evidence Act.

In the Evidence Act, ‘admission’:

means a previous representation that is—
(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b)adverse to the person’s interest in the outcome of the proceeding;[17]

[17]Evidence Act (n 3) Dictionary pt 1 (definition of ‘admission’).

The representation made need not be an explicit admission of liability. A representation can be against the interests of the person if it is capable of rationally affecting the assessment of the probability of facts that tend to established liability.[18] Archbishop Hart’s representations are clearly capable of affecting the assessment of liability, adverse to the defendant’s interest in this proceeding.
[18]R v JGW [1999] NSWCCA 116, [39]–[41]; Odgers (n 15) 620 [EA.81.60].

O’Connor relied in particular on evidence given by Archbishop Hart in response to questions posed by counsel assisting the Royal Commission in the following exchange:

Q.       … Father Gannon was born in 1929 and ordained in 1956?
A.       Correct.
Q.       He was an assistant priest for some years, and then became a parish priest in the 70s, and then ultimately he was appointed Pastor Emeritus in May 1993?
A.       Correct.

The best evidence about the reason for O’Connor being placed on the disability support pension is the contemporaneous notes of the doctors who examined him at the relevant time. Those notes are detailed and unambiguously support the conclusion that the pension was primarily granted because of O’Connor’s alcoholism. In 2005, the pension was continued wholly in relation to alcoholism.

Dr Slesenger’s assessment that the pain and impairment from the back injury was mild is corroborated by his review of the GP records. Dr Slesenger concluded there was no reason, from a physical perspective, that O’Connor should not be able to participate in work subject to restrictions on heavy manual tasks. It should be concluded that if not for his psychological impairment and alcohol abuse O’Connor would be able to work in most jobs.

The award of general damages should be informed by lifelong alcoholism and self-destructive behaviour, post-traumatic stress disorder and depression; suicidality including three suicide attempts; feelings of shame, self-loathing, confusion, distress and anger; impact on schooling and career; damage to romantic, family and friend relationships, and alienation; entrenched poverty; drunken offending, convictions and incarceration; and disturbed sleep and nightmares about Gannon.

Jones v Dunkel[101] inferences

[101](1959) 101 CLR 298.

Both parties sought Jones v Dunkel inferences.

O’Connor submitted that the defendant’s failure to call the expert witness, who had provided reports to the defendant relevant to the claim for loss of earning capacity, should lead to an adverse inference. Each of the experts was independent and the reports were prepared in accordance with the Expert Witness Code of Conduct. It was not explained why the experts could not be called by O’Connor to give evidence. In the circumstances, I draw no inference adverse to the defendant.

The defendant submits that O’Connor’s failure to call evidence from his mother and his treating general practitioners should lead the Court to make an adverse inference that the uncalled evidence would not have assisted O’Connor in the following respects:

(a) The doctors would not have supported that O’Connor has been almost totally incapacitated by alcohol consumption for the last 20 years and his claim of continuing alcohol abuse. In light of this, the Court should more readily accept that O’Connor continues to receive the disability pension because of his back injury.

(b) O’Connor’s mother would not have supported his evidence on key aspects of his claim for damages including what he was like as a child, when she was informed of the abuse, his academic abilities, her relationship with O’Connor’s father, the family living circumstances, O’Connor’s behaviour as a teenager in Shepparton and his alcohol consumption history.

For the reasons outlined below, I conclude there are no adverse inferences to be drawn in respect of O’Connor’s election not to call his mother or his treating general practitioners to give evidence. O’Connor’s evidence in relation to his life as a child, and his alcohol abuse as an adult was corroborated by his sister. On a fair reading the contemporaneous clinic records support ongoing alcohol abuse. Any controversy as to the cause of O’Connor’s incapacity for work is resolved by the contemporaneous records and the opinions of the medico-legal specialists making it unnecessary to call O’Connor’s treating general practitioners. Further, even if an adverse inference were to be drawn, based on the evidence to which I have referred, my conclusion about these matters would not change.

Analysis and findings relevant to damages

I accept O’Connor’s description of his life before the abuse. I conclude O’Connor was an active, happy child who related well to his close family, was socially engaged and progressing normally at school. My conclusion is supported by Hutchinson’s evidence.

I accept the evidence of the psychiatrists that moving house and changing schools a number of times as a young child, and his parents’ separation, was somewhat destabilising and may have led to O’Connor experiencing a degree of emotional vulnerability. However, Hutchinson described a happy and loving family environment as a child. There is no evidence that she or her other siblings experienced any difficulty associated with or caused by their early family life. There is no reason to suppose that, but for the abuse, O’Connor’s response to his childhood would have differed to that of his siblings.

The first incident of abuse by Gannon was horrific. It involved a physically painful and abhorrent assault on a young child by an adult in a position of almost absolute power and authority, in an isolated bushland setting, resulting in O’Connor fearing he would be killed. I fully accept O’Connor’s description that the assault tilted him on his axis, that he felt the happy, innocent young boy he was died that day, and that he was never the same again.

The impact of the first assault was compounded by Gannon stalking O’Connor, attempting to get him on his own again, and by the further assaults.

I accept O’Connor’s evidence of the immediate impact on him of the abuse, including disturbance of family relationships and friendships, isolation, behavioural deterioration, disruption of education and use of alcohol. I accept O’Connor felt he was alone with his experience of pain caused by the abuse. The abuse and the injuries it caused resulted in O’Connor attempting suicide as a 12-year-old.

I accept the evidence of both psychiatrists to the effect that the trajectory of O’Connor’s life was determined by the abuse and its impact on him. By the age of 12 O’Connor was suffering complex post-traumatic stress disorder, major depression and had commenced a lifelong pattern of abusing alcohol. His injuries, and the emotional dysregulation resulting from the abuse, were a cause of O’Connor descending into a life characterised by fractured relationships, antisocial behaviour and unhealthy peer group associations. The changes to O’Connor’s psyche and life in that very formative period were caused by the abuse, and were not the result of any rational or voluntary choice he made. A consideration of the lives experienced by O’Connor’s siblings gives substantial support to these conclusions. The contrast is stark. Each of O’Connor’s siblings has led a stable, productive and successful family and work life, without evidence of alcohol abuse or antisocial behaviour.

I reject, with one exception, the defendant’s submissions that:

(a) the causal connection between the abuse, the injuries it caused, and the loss and damage suffered by O’Connor because of his life experiences was broken as a result of O’Connor’s involvement with a heavy drinking peer group as an adolescent in Shepparton, and the choices he made in the following decade to engage in antisocial behaviour; or

(b) O’Connor should not be compensated for those matters because of normative or policy considerations.

The defendant’s submission is inconsistent with the lay evidence and the expert opinions of the psychiatrists. The damage caused by the abuse was immediate and ongoing, resulting in O’Connor continuing to suffer complex post-traumatic stress disorder, chronic dysthymia with episodes of major depression, alcohol abuse and antisocial personality disorder. These conditions were entrenched in O’Connor’s early and mid-teenage years, before he became associated with an unhealthy peer group in Shepparton. It was those conditions, and the associated dysregulation, emotional turmoil and behavioural issues that led to O’Connor being attracted to the peer group he associated with in Shepparton, and to engaging in antisocial behaviour.

The one exception is that, because of application of principles set out in State Rail Authority of New South Wales v Wiegold (‘Wiegold’),[102] O’Connor is not entitled to recover damages for losses resulting directly or indirectly from findings that he was guilty of criminal offences.
[102](1991) 25 NSWLR 500. See also Bailey v Nominal Defendant [2004] QCA 344.

Application of the principles in Wiegold on assessment of O’Connor’s damages should not be overstated. While I accept being in jail was, by and large, not a happy or pleasant experience, there is no evidence that periods of imprisonment caused O’Connor additional psychological injury, or had any lasting material effect on the course of his life.

I reject the defendant’s submission that the cause of O’Connor’s incapacity for work from the mid-1990s, and the reason he was placed on the disability support pension, is the lower back injury. The contemporaneous records and the opinion of Dr Slesenger support O’Connor’s evidence that from about the mid-1990s he has suffered a chronic lower back condition causing intermittent mild pain requiring little treatment and causing little restriction, apart from an incapacity to undertake heavy work or activity. I conclude the cause of O’Connor’s incapacity for work is the ongoing severe mental ill health from which he suffers.

O’Connor’s relationship with his partner Bev, which commenced in the late 1990s, did have a stabilising and positive impact on his life. With Bev’s encouragement and support O’Connor obtained some enjoyment from performing country music and participating in two music clubs and a community radio station. I accept Dr Tagkalidis’s analysis of this period of O’Connor’s life. The mental ill health he suffered resulting from the abuse did not go away, and was never far below the surface. O’Connor’s participation in country music, like most other activities in his life, was fuelled by alcohol. The release he felt when performing or engaging in music activities was superficial and not sustained. However, I do take account of this more positive period of O’Connor’s life in the assessment of damages.

I reject the defendant’s submission that O’Connor’s alcohol intake reduced significantly after he began his relationship with Bev and became involved in country music. In 2005, Dr Guymer certified O’Connor for the purposes of the pension on the basis he was incapacitated for work by alcohol addiction, and consumed 24 drinks per day. In 2008, psychologist Jones diagnosed that O’Connor suffered alcohol dependence and abuse. The Peter MacCallum note in 2011 of 10 glasses of alcohol weekly must be considered in the following context. First, that note was taken in the acute period of treatment for throat cancer when O’Connor was experiencing difficulties with oral intake, and where there was a noted reluctance to provide an accurate nutritional history. Second, two of the Goulburn Valley Health notes from around that time indicate a significantly higher level of consumption. Evidence post-dating the Peter MacCallum entry strongly supports a continued high level of alcohol consumption. Hutchinson lives in the same country city as O’Connor. She said O’Connor’s whole life was fuelled by alcohol, and described an incident about five years ago when he attended a family Christmas event while very drunk. Hutchinson continues to see her brother at their mother’s house. She was not cross-examined on the basis that in more recent years O’Connor’s alcohol consumption was reduced.

Pain and suffering

O’Connor submitted an appropriate award for pain and suffering damages was in the order of $400,000 to $450,000.

The defendant submitted the range of damages for pain and suffering is in the order of $275,000 to $325,000.

I am not satisfied that either of the suggested ranges reflect a reasonable award of damages. O’Connor was forced to experience horrific assaults by Gannon. Since the first assault he has suffered severe mental ill health. The impact of the abuse reshaped every aspect of his life in a dramatically destructive way. He will never be rid of the impacts of being abused as a boy. I conclude that a reasonable award of damages for pain and suffering is $525,000.

Loss of earning capacity
Submissions
Defendant

There is no evidence about what work O’Connor did during most of the 1980s. Thompson’s use of average earnings for different occupations over this period amounts to little more than speculation. Thompson’s assessment of $78,000 for the period 1982 to 1992 should be heavily discounted to reflect that uncertainty.

Over the last 20 years O’Connor has demonstrated a capacity for employment through his ability to socialise, organise, participate and travel. As a result there should be no award for loss of earning capacity for that period. In the alternative the claim for this period, assessed by Thompson at $1,154,933, should be heavily discounted because of the restrictions on O’Connor’s ability to work caused by the unrelated back injury, a reduction in alcohol consumption.

If it is accepted O’Connor was incapacitated from 1995 because of the back injury, the total award for past loss should be $173,640. If a continuing loss is found beyond 1995, past loss should be assessed in the range $393,364 to $508,848. There should be no award of future economic loss.

O’Connor

After leaving school O’Connor spent almost 20 years barely hanging on to work mixing regular periods of unemployment with a long string of mostly basic, poorly paid jobs. The contemporaneous records and expert psychiatric evidence all supports the conclusion that from the mid-1990s O’Connor has been incapacitated for work because of his extremely poor mental health and entrenched alcoholism.

There was no evidence that O’Connor’s back injury would have prevented him from working.

The severity of O’Connor’s alcohol abuse and mental health problems mean he will never return to paid work.

Given the evidence about his siblings’ stable lives and careers, Dr Tagkalidis’s evidence about O’Connor’s intellectual capacity, and the evidence about O’Connor pre-abuse, it is reasonable to assess but for injury earnings by reference to average weekly earnings.

There should be no discount for vicissitudes applied to the assessment of past loss of earning capacity. Given O’Connor’s notional remaining working life is only two and a half years, a discount of only 5% should be applied to the assessment of future loss.

Analysis

I conclude, consistent with the evidence of O’Connor, Hutchinson and the psychiatrists, that the abuse caused injuries that severely disrupted O’Connor’s education and working life. It is possible, given the experience of his siblings, that but for the injuries O’Connor would have left secondary school at around the same time that he actually did. However, his experience of school would almost certainly have been more positive and productive, leaving him better equipped to transition to the workforce and progress his career.

I accept Thompson’s evidence that at the time O’Connor left high school the most significant factors determining whether he achieved average weekly earnings or above were training and qualifications post-school, and stability of employment. Each of O’Connor’s siblings, having left school without completing Year 12, undertook post-school training, obtained qualifications and appear to have had stable and productive careers.

I accept Dr Tagkalidis’s evidence about O’Connor’s intellectual capacity, which is consistent with my observation of him, and with Hutchinson’s evidence about her brother as a young boy.

O’Connor had an itinerant work history from his mid-teens to his early 30s in relatively unskilled jobs that were likely to be poorly paid. He had periods of unemployment and incarceration. Given the severity of the injuries caused by the abuse the fact that O’Connor was able to work at all speaks to a generally industrious nature. I conclude that in the period from 1973 when he left school until 1995 when he was retrenched from the lighting company factory job, O’Connor was partially incapacitated for employment.

After leaving the lighting company O’Connor worked occasionally as a fruit picker for a few years. He has not worked since. I conclude O’Connor has been totally incapacitated for employment by his injuries from the mid-1990s to date, and that his incapacity is permanent.

Quantification of damages requires consideration of a hypothetical past and uncertain future.[103] Such an assessment is made more difficult by the age at which O’Connor suffered injury, the absence of any stable or settled work history, and the associated uncertainty about what work O’Connor would have done absent being injured.
[103]Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, [103]; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

I accept Thompson’s evidence about average weekly earnings, and why that statistic is an appropriate basis for calculating O’Connor’s without injury earning capacity.

O’Connor grew up in a generally stable, supportive and loving family. Before being abused, O’Connor was a reasonably intelligent, active, engaged and happy boy progressing normally at school. There is every reason to believe that absent the abuse and his injuries O’Connor would have progressed at least in the manner of his siblings, attaining post-school qualifications and training, and enjoying a stable work life. By doing so, for the reasons explained by Thompson, O’Connor would have had the capacity to earn average weekly earnings.

There are a number of reasons why the assessment of loss by Thompson requires adjustment.

First, as I have already explained, O’Connor is not entitled to recover damages caused by committing criminal offences. Loss of earning capacity damages are to be reduced accordingly.

Second, because no damages will be awarded for the period O’Connor was imprisoned, damages should not be reduced by the amount Thompson allowed to reflect the benefit of accommodation and food while in prison.

The total loss calculated by Thompson to 31 December 1981, which includes the periods O’Connor was imprisoned, is $21,880. O’Connor was imprisoned for a total of a little over two years between 1974 and 1981. During the period of incarceration, net average yearly earnings were around $8,500. Therefore Thompson’s assessment would effectively award O’Connor around $20,000 loss of earning capacity for the period he was in prison. Taking into account these matters, and the principles expressed in Wiegold, I conclude it is appropriate that O’Connor be awarded no damages for loss of earning capacity for the period from the time he left school to 31 December 1981.

For the following reasons I reject the defendant’s submission that the assessment of loss by Thompson in the period 1982 to 1992 should be discounted because of uncertainties in the evidence. First, Thompson assumed that in this period, up to the date he was retrenched from the lighting factory, O’Connor worked fulltime. Although it is not entirely clear, my appreciation of the evidence is that O’Connor was not working for the whole period.

Second, O’Connor gave evidence that during this period he worked as a hotel porter, lift attendant, hotel bar attendant and factory worker. Thompson had three sources of information to calculate actual earnings from that work. First, he used financial records that set out O’Connor’s actual earnings in the last two financial years he worked at the lighting factory. When he started at the lighting factory O’Connor worked day shift, but in the later period was transferred to night shift, which is likely to have led to increased earnings. On this basis, Thompson is likely to have overestimated O’Connor’s actual earnings for the early period of his work at the lighting factory. Second, Thompson used average industry figures as the basis for calculating O’Connor’s earnings in other occupations such as hotel porter and lift attendant. A comparison to the known earnings from work at the lighting factory supports the reasonableness of Thompson’s calculation of earlier earnings. For example, in the year to 30 June 1991 O’Connor’s known net earnings were $17,295. In the year to 30 June 1984 Thompson calculated, based on industry figures, that O’Connor’s net earnings were $14,406.

Third, Thompson assumed that in the period from late 1991 to mid-1995 O’Connor worked as a fruit picker 30% of the time. That estimate substantially overstates the amount of fruit picking work O’Connor actually did.

For these reasons I conclude it is likely Thompson overstated O’Connor’s actual earnings in the period from 1 January 1982 to 30 June 1995, leading him to under assess O’Connor’s loss of earning capacity for this period.

Thompson’s calculation of loss from 1 July 1995 to date, and continuing to O’Connor’s 67^th birthday, is simply based on average weekly earnings. Thompson has assumed that during that period O’Connor has been and will remain totally incapacitated for work. For reasons already stated I accept that assumption.

I conclude, for the following reasons, that there is a degree of uncertainty about the assessment of loss of earning capacity. First, the lengthy period over which damages must be assessed. Second, the young age at which injuries were sustained which leads to the lack of established pre-injury work history or career path. Third, the impact of O’Connor’s forensic history and imprisonment. Fourth, Thompson’s calculation makes no allowance for periods of underemployment or unemployment. Fifth, the back injury caused incapacity for heavy work, which may have resulted in some loss of earnings, at least for a period of time. The residual uncertainty in relation to assessment of O’Connor’s loss of earning capacity should not be overstated. Thompson assessed the loss against average weekly earnings, which will take into account variability in the background and capacities of workers. The back injury is mild, and is not a cause of major incapacity. Further, I conclude O’Connor had the capacity to achieve a higher level of qualification than his siblings have done.

I conclude it is reasonable to reduce Thompson’s calculation of past economic loss by 15% to take account of uncertainty associated with the hypothetical assessment of without injury earning capacity and the resulting loss.

I conclude it is reasonable to assess but for injury earnings to retirement at age 67. Given there are only a few years to retirement it is reasonable to apply a 20% reduction to reflect the uncertainties referred to above and general vicissitudes.

Thompson’s assessment and these findings lead to the following calculation of loss of earning capacity damages:

Past loss from 1 January 1982 to date, reduced by 15%   $1,343,698
Future economic loss, reduced by 20%   $151,708
Total   $1,495,406

On this basis, I award O’Connor $1,500,000 for loss of earning capacity damages.
Medical and like expenses

Both Dr Tagkalidis and Dr Entwisle recommended O’Connor access psychological counselling and psychiatric treatment. O’Connor submitted on the basis of Dr Tagkalidis’s evidence that an appropriate award for future treatment was $18,725. The defendant submitted the award should be $15,000, being the approximate midpoint between the recommendations made by the two psychiatrists.

Both psychiatrists were doubtful about whether O’Connor would engage in and accept treatment. In the circumstances I accept the defendant’s submission. I will award $15,000 for future medical expenses.

Melbourne Response payments

O’Connor applied to the Melbourne Response in early 2010. His application for compensation was accepted, and he was offered $75,000 by Archbishop Hart, described as ‘ex gratia compensation in respect of the Abuse’.

O’Connor signed a deed of release, agreeing to accept the compensation payment in full and final settlement of his claims in respect of the abuse. The deed provided that each party bear their own legal costs of and incidental to O’Connor’s application for compensation.

O’Connor received a further payment of just under $64,000 in 2017.

Submissions
Defendant

It is just and reasonable for the total sum of $139,353 received by O’Connor from Melbourne Response to be taken into account by reducing the award of damages to him. The payments were made to compensate O’Connor for the same damage as that for which a claim is made in this proceeding. O’Connor cannot recover twice for that damage.

O’Connor

The payments to O’Connor from Melbourne Response were ex gratia, and were not made to settle a cause of action. In those circumstances ss 27QE and 27QF of the Limitation of Actions Act 1958 (Vic) (‘Limitations Act’) do not apply.

The Melbourne Response scheme had an arbitrary cap on compensation that bore no relationship to the damage suffered by a claimant because of abuse. Applicants to Melbourne Response were not litigating, but were simply seeking an ex gratia payment from the Archdiocese.

O’Connor considered the amounts paid to him by Melbourne Response to be entirely insufficient. Given the very modest amounts paid, and the benefit to the defendant and related disadvantage to O’Connor from the inability to litigate his claim until recent legislative changes, it is neither just nor reasonable that the Melbourne Response payments be offset against his award of damages.

Analysis

While the Melbourne Response payments were described as ex gratia compensation they were clearly made to O’Connor in respect of the abuse by Gannon. Further, the deed released the defendant and others from any cause of action, and O’Connor agreed that he would bring no action and make no claim for damages, in relation to the abuse. The effect of the deed was to settle O’Connor’s cause of action in respect of the abuse. Accordingly, s 27QE of the Limitations Act applies.

The defendant does not oppose the deed and settlement being set aside.

I am satisfied, on the basis of findings set out in these reasons, that it is just and reasonable to wholly set aside the deed.

If it is just and reasonable to do so, I may take into account the compensation paid to O’Connor through the Melbourne Response when awarding damages.[104]
[104]Limitation of Actions Act 1958 (Vic) s 27QE(2).

The payments to O’Connor via the Melbourne Response, while they fall well short of the damages assessed, were objectively significant, and in that sense represented real compensation to O’Connor for the abuse. O’Connor has had the benefit of the first payment for about 12 years, and the second payment for about five years. These features, and the absence of any disentitling conduct by the defendant, make it just and reasonable to take into account the Melbourne Response payments when awarding damages.

O’Connor paid about $8,000 for legal representation on his Melbourne Response application. Having regard to his significant mental ill health, the complex issues he was required to consider, it was reasonable, and probably necessary, that O’Connor be legally represented.

I conclude that the award of damages to O’Connor should be reduced by the Melbourne Response payments net of legal fees. The amount to be deducted from the assessment of damages is $131,353.

Summary of damages award

I award O’Connor the following damages:

(a) General damages $ 525,000

(b) Future treatment expenses $ 15,000

(c) Economic loss damages $ 1,500,000

Less:

(d) Net Melbourne Response payment $ 131,353

TOTAL: $ 1,908,647

I will hear from the parties as to the form of order and any consequential matters, including costs and interest.

[2022] VSC 313

9 June 2022