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...........................................................................................................................…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading O'Connor v Comensoli

Details

AGLC: O'Connor v Comensoli [2022] VSC 313
Case: [2022] VSC 313
Decision Date: 9 June 2022

CaseChat Overview and Summary

In the matter of O'Connor v Comensoli, the Court was presented with a claim for personal injury resulting from historical abuse by a priest. The plaintiff sought to hold the Archdiocese of Melbourne vicariously liable for the unlawful conduct of an assistant priest. The Court had to determine whether the Archdiocese could be held liable under the principles of vicarious liability and if the nature of the relationship between the Archdiocese and the priest supported such liability. Additionally, the Court had to consider the admissibility of evidence regarding an earlier complaint of abuse and representations made by the former Archbishop, which were relevant to the case.

The legal issues before the Court included the applicability of the doctrine of vicarious liability in the context of historical abuse by a priest, the foreseeability of the risk of harm, and the structure of the Catholic Archdiocese of Melbourne. The Court also had to assess the damages awarded to the plaintiff and the implications of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) on the case. The Court's reasoning was influenced by previous cases such as Trustees of the Roman Catholic Church v Ellis & Anor and Sweeney v Boylan Nominees Pty Ltd, which provided precedents on vicarious liability and the nature of the relationship between an employer and an employee.

The Court found that the Archdiocese could be held vicariously liable for the actions of the priest, given the nature of the relationship and the foreseeability of the risk of harm. The Court considered the hierarchical structure of the Archdiocese and the control it exercised over the priest, which supported a finding of vicarious liability. The admissibility of evidence regarding the earlier complaint was carefully considered, with the Court concluding that the probative value outweighed any prejudice to the defendants. The representations made by the former Archbishop were also found to be admissible as they were made with the authority of the Archdiocese.

The Court awarded the plaintiff damages, taking into account the impact of the abuse on the plaintiff's life. The Court's decision was grounded in the principles of vicarious liability and the legal frameworks provided by relevant statutes and case law. The final orders of the Court included the determination of liability and the assessment of damages to be paid by the Archdiocese to the plaintiff.

Orders