The Plaintiff (TJ) alleged he was sexually abused by Father Vincent Kiss (Kiss) between 1972 and 1976.

TJ commenced proceedings against the nominated Defendant, Bishop of the Roman Catholic Diocese of Wagga Wagga, Mark Edwards (Diocese) claiming damages for psychological injuries, namely post-traumatic stress disorder and depression, and aggravated and exemplary damages.

The proceeding was heard by Justice Stephen O'Meara in  the Supreme Court of Victoria before a jury in October and November 2023.

The Diocese applied to have TJ's claim for exemplary damages to be determined by Justice O'Meara.  The judge rejected that application; however, he reserved leave for the Diocese to move non obstante veredicto in the event that the jury awarded exemplary damages.

TJ was awarded $1.1 million in general damages for pain and suffering, $1.3 million in exemplary damages, past economic loss of $896,000 and future economic loss of $69,000.

Ultimately, Justice O'Meara upheld the jury's award of exemplary damages following the hearing of submissions pursuant to the leave His Honour reserved to the Diocese to move non obstante veredicto.

The Diocese appealed to the Supreme Court of Victoria Court of Appeal.

Key issues on appeal

The key issues to be determined on appeal were:

• Whether the jury's assessment of damages for pain and suffering was manifestly excessive and against the weight of evidence.
• Whether the jury's assessment of damages for past and future economic loss was manifestly excessive and against the weight of evidence.
• Whether the jury's verdict on exemplary damages should be set aside.

General damages

The Diocese submitted the award of $1.1 million in general damages was unreasonable, particularly as the abuse did not involve penetration or acts of violence and occurred over a limited period.  

Moreover, the abuse did not affect TJ until later in life, and during the affected period TJ was able to enjoy life, with symptoms reducing significantly following treatment.

The consultant psychiatrist the Diocese called to give evidence also attributed 40 per cent of TJ's impairment to early life difficulties, which were unrelated to the abuse.

TJ submitted the damages were appropriate and reflected current community standards.  TJ noted the 'gap' between this award and cases in other states may be partly explained by differing statutory regimes.  TJ also submitted a judge's assessment may be affected by past awards, whereas a jury's assessment is not.

The Court of Appeal unanimously set aside the jury's assessment of pain and suffering damages of $1.1 million and reassessed it at $550,000.  

The Court found, while the abuse was extremely serious, it did not involve sexual penetration or acts of violence and, with the assistance of psychological treatment, TJ had managed to experience a relatively successful life, albeit one that has not been without challenges.

The Court held the jury's assessment was significantly beyond an amount reasonably open to the jury and was not reasonable and proportionate to TJ's injuries and consequences.

Economic loss

The Diocese submitted TJ's earning capacity and career progression did not suffer impairment as a result of the abuse and TJ was not currently incapacitated for work.

TJ submitted there was loss and it was quantifiable, leaving it up to the jury to assess the award.

The Court of Appeal unanimously upheld the jury's award for past and future economic loss, as the jury was entitled to accept the evidence at its most favourable to TJ.

Exemplary damages

At first instance, TJ sought exemplary damages on two bases:

1. The Diocese failed to take any steps to prevent Kiss's abuse after a complaint was made against him in 1968; and
2. The Diocese failed to admit Kiss's abuse in pleadings until the amended defence filed four days prior to the hearing.

On appeal, the Diocese submitted, amongst other things:

1. There was no evidence justifying any award of such damages, and the issue of exemplary damages should have been taken away from the jury; and
2. The jury’s award of exemplary damages was manifestly excessive and/or the size of the award shows the jury must have disregarded the judge's directions.

In response, TJ submitted there was sufficient evidence to support the award of exemplary damages and the award is punitive and intended to hurt.

The Court of Appeal set aside the jury's award of exemplary damages.

The Court of Appeal held the paucity of evidence relating to the 1968 complaint precluded any award of exemplary damages.  

There was no evidence as to the terms of the complaint, the nature of the abuse complained of, the relationship between the complainant and Kiss, the identity of the recipient of the complaint and the relationship of the recipient to the Diocese.  

The mere existence of a complaint could not cause the jury to conclude the Diocese's conduct in not taking appropriate steps prior to TJ's abuse merited punishment.

The Court rejected TJ's submissions to the extent that an appropriate response to the 1968 complaint strayed into facts or circumstances outside the Diocese's purview and into facts and matters concerning the conduct of the Catholic Church generally.

The Court of Appeal unanimously held, while in some cases a defendant's denial of a fact they know to be true can give rise to exemplary damages, these cases are rare.  The Diocese's pleadings could not be regarded as improper or unjustified.

Key points

Although this decision marks a significant reduction in the award of damages for pain and suffering, it reinforces the Supreme Court of Victoria's award of general damages in O'Connor v Comensoli [2022] VSC 313.

In this case, there was no evidence to enable the Court to determine what (if any) contumelious conduct a defendant committed for which it should be punished.  

However, the Court noted a significant sum may be awarded in exemplary damages if a defendant deliberately ignored a known risk a paedophile priest poses to children, and thus knowingly placed those children at risk.  

On the other hand, if the Court determined a defendant should be punished for failing to have a system requiring complaints of sexual abuse to be acted upon, the award of exemplary damages might be considerably lower, if one was to be made at all, bearing in mind the test for an award of exemplary damages.

Authors

Cameron Roberts | Partner | +61 3 9641 8696 | croberts@tglaw.com.au

Hannah Sowdon | Partner | +61 3 9641 8840 | hsowdon@tglaw.com.au

Arianne Daly | Senior Associate | +61 3 8080 3735 | adaly@tglaw.com.au

Gabriella Lennon | Law Clerk

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