WQA (a pseudonym) v Archbishop Comensoli - [2023] VSC 657

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2020 00126

WQA (a pseudonym)	Plaintiff
v
ARCHBISHOP PETER A COMENSOLI and TRUSTEES OF THE CHRISTIAN BROTHERS	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2023
DATE OF JUDGMENT:	15 November 2023
CASE MAY BE CITED AS:	WQA (a pseudonym) v Archbishop Comensoli
MEDIUM NEUTRAL CITATION:	[2023] VSC 657

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PERSONAL INJURY – Where claim has been settled but for issue relating to whether social security payments made to plaintiff should be accounted for in calculation of damages – Whether compensation affected payments made outside the preclusion period go in reduction of damages – Whether the Commonwealth intended that social security payments be applied in reduction of claimable losses – The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569 – Social Security Act 1991 (Cth) – Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 47.04.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr T Tobin SC, Mr D O’Brien and Ms C Spitaleri

Arnold Thomas & Becker

For the First and Second Defendants

Mr C Winneke KC and
Mr P Santamaria

Wotton & Kearney for the first defendant

Carroll & O’Dea Lawyers for the second defendant

TABLE OF CONTENTS

A.. Introduction.................................................................................................................................. 1

B.. The test that applies..................................................................................................................... 1

C.. The law prior to the introduction of the provisions now contained in the Social Security Act 1991 (Cth)....................................................................................................................................... 3

D.. The regime now found in the Social Security Act 1991 (Cth).............................................. 5

E... What should happen with compensation affected payments made outside the preclusion period?............................................................................................................................................ 7

F... Disposition.................................................................................................................................. 14

HIS HONOUR:

A. Introduction

WQA, the plaintiff, has settled a claim for damages against Archbishop Peter A Comensoli and the Trustees of the Christian Brothers, the first and second defendants, for injury alleged to have been suffered as a result of abuse that took place between 1959 and 1961. WQA’s claim includes a claim for damages for loss of earning capacity. He received a Newstart Allowance between June 1992 and August 1997, and a Disability Support Pension between September 1997 and ‘at least’ October 2015. Those payments were made in accordance with the Social Security Act 1991 (Cth). The Social Security Act 1991 (Cth) has provisions under which, in certain circumstances, benefits received under that Act are repayable to the Commonwealth out of a damages payment. The Newstart Allowance and Disability Support Pension that the plaintiff received are not repayable to the Commonwealth under those provisions. The defendants contend, and the plaintiff denies, that, in those circumstances, the amount of the Newstart Allowance and Disability Support Pension that the plaintiff has received operate to reduce the damages recoverable. The settlement of the claim has identified the relevant amount and has provided for that amount to be removed from, or included in, the amount otherwise agreed to be paid in settlement of the claim. The parties have asked the Court to determine, and…

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 WQA (a pseudonym) v Archbishop Comensoli

Details

AGLC: WQA (a pseudonym) v Archbishop Comensoli [2023] VSC 657
Case: [2023] VSC 657
Decision Date: 15 November 2023

CaseChat Overview and Summary

The plaintiff, WQA, initiated proceedings against the Archbishop Comensoli, seeking damages for personal injuries sustained as a result of alleged abuse. The case involved the issue of whether social security payments made to WQA should be accounted for in the calculation of damages. The case was heard in the Supreme Court of Victoria. The legal issues before the court were whether compensation affected payments made outside the preclusion period should be applied in the reduction of damages and whether the Commonwealth intended that social security payments be applied in the reduction of claimable losses.

The court considered the relevant statutory provisions, including the Social Security Act 1991 (Cth), and the case of The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569, to determine the appropriate approach to calculating damages. The court held that the Commonwealth did not intend that social security payments be applied in the reduction of claimable losses, and therefore, such payments should not be accounted for in the calculation of damages. The court further held that the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) did not apply to this case.

The court ordered that the social security payments made to WQA should not be accounted for in the calculation of damages. The court did not make any orders regarding the settlement of the claim or any other aspect of the proceedings. The decision provides guidance to courts in Victoria on the appropriate approach to calculating damages in cases involving social security payments.

Orders