Successful institutional abuse claim against the Archdiocese of Melbourne.
CASE SUMMARY
O’Connor v Comensoli [2022] VSC 313
The injured plaintiff, Stephen O’Connor (“O’Connor”), was successful in his institutional abuse claim against the Archdiocese of Melbourne.
At the time of the abuse, between 1968 and 1970, O’Connor was a pupil at the Catholic Primary School in Kilmore and served as an Altar boy at the local church.
Father Desmond Gannon (“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 of Melbourne. 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’).
O’Connor was successful in his instituational abuse claim and awarded damages for pain and suffering, future treatment expenses and economic loss damages, amounting to $1,908,647.
VICTORIAN SUPREME COURT JUDGEMENT
VICARIOUS LIABILTY
The defendant argued that they were not vicariously liable for the actions of Gannon. In his decision, Justice Keogh analysed vicarious liability in the following ways.
Step one- Does vicarious liability arise in the relationship between the Archdiocese and the priests?
In summary, the defendant submitted the relationship between the priests and the Archdiocese was not one of employment or so like employment as to satisfy the first vicarious liability step, and the court cannot impose vicarious liability on the basis there was a relationship ‘akin to employment’.
Justice Keogh concluded that vicarious liability arises on the relationship between the Archdiocese and the priests and found for O’Connor.
Step two- Did the priests’ role provide an opportunity and occasion for the abuse – Prince Alfred College?
In relation to the abuse by Gannon, the defendant submitted the approach in Prince Alfred College requires consideration of:
(a) any special role that the employer has assigned to the employee and the position in which the employee is thereby placed, vis -à-vis the person abused; and
(b) whether the apparent performance of that role created the ‘occasion’ for the wrongful act. Relevant features include matters such as authority, power, trust, control and the ability to achieve intimacy with the person abused.
Justice Keogh concluded that special role of assistant priest at Kilmore to which Gannon was appointed by the Archdiocese provided both the opportunity and the occasion for his abuse of O’Connor. He concluded the Archdiocese is vicariously liable for Gannon’s conduct
DAMAGES
Pain and Suffering Damages
Justice Keogh concluded that the direct and vicarious liability claims brought by O’Connor against the Archdiocese succeed.
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 damage is in the order of $275,000 to $325,000. Justice Keogh was not satisfied that either of the suggested ranges reflects a reasonable award of damages and awarded $525,000.
Economic Loss
Justice Keogh concluded that O’Connor had the capacity to achieve a higher level of qualification than his siblings had done and awarded $1,500,000.00 for loss of earning capacity.
Future Treatment Expenses
Both expert psychiatrists were doubtful about whether O’Connor would engage in or accept treatment. Justice Keogh awarded $15,000 for future medical expenses.
MELBOURNE RESPONSE (Previous settlement)
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.
CONCLUSION
Justice Keogh concluded 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 was $131,353.
Justice Keogh found that the Archdiocese was Vicariously Liable and awarded $1,908,647 to O’Connor.
The full decision can be read here:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC//2022/313.html
HOW CAN STACKS GOUDKAMP HELP
If you or anyone you know has suffered institutional abuse a claim for compensation can provide you with the financial care and support needed to move forward.
Stacks Goudkamp’s specialist institutional abuse team have the expert knowledge and expertise needed to obtain outstanding results in all types of abuse claims.
We will act for you on a no win, no fee basis. We will listen to you and understand how your injuries have affected your quality of life, daily activities, work and all aspects of your life. We are here to help and always offer our legal services with compassion and respect.
Written by Alessandra Pettit
Ali Pettit is a specialist in historical institutional abuse law and practices exclusively in this area. She has acted for survivors from all walks of life and continues to get outstanding results for her clients. She is compassionate, thorough, professional and kind, always ensuring that her clients feel supported and confident throughout the legal process.
If you or a loved one are a survivor of institutional abuse, you may be entitled to compensation. For more information and to arrange a free, no-obligation conference with Ali, please call Stacks Goudkamp on 1800 251 800, or alternatively make an enquiry online
