Abuse Law – Case Law Update – Social Security Payments and Damages

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

In the recent matter of WQA (a pseudonym) v Archbishop Comensoli [2023] VSC 657, the plaintiff, WQA (a pseudonym), commenced civil proceedings in which he sought damages from two defendants, Archbishop Peter A Comensoli and the Trustees of the Christian Brothers, in relation to psychological injuries sustained as a result of abuse that took place between 1959 and 1961.

The plaintiff’s claim included a claim for damages for his loss of earning capacity. The plaintiff had received a Newstart Allowance (through Centrelink) between June 1992 and August 1997, and a Disability Support Pension (through Centrelink) 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 in this matter contended, and the plaintiff denied, that, in those circumstances, the amount of the Newstart Allowance and Disability Support Pension that the plaintiff had received operate to reduce the damages that are recoverable.

The parties asked the Victorian Supreme Court to determine the single issue of whether the social security (Centrelink) payments received by the plaintiff should, at [1], ‘…be taken into account in the calculation of damages for past economic loss, in circumstances where they are not repayable to the Commonwealth’.

On 15 November 2023, the Court noted at [19]:

The defendants submitted, in substance, that the legislature intended to create two arrangements: one during the preclusion period, where the receipt of social security benefits are to be ignored in the assessment of damages, and one after the preclusion period where the receipt of social security benefits are to be taken into account in the assessment of damages or, more accurately, the previous common law rules are to be applied to determine whether or not they are to be taken into account. The plaintiff submitted, in substance, that the legislature intended to create one arrangement that applied to all relevant social security payments: they were to be ignored in the assessment of damages but were repayable to the Commonwealth by the plaintiff or wrongdoer to the extent that repayment was required by the simple and objective calculation provided for in the legislation.

The Court preferred the plaintiff’s submission, and held at [20]:

In my view, the terms of the Social Security Act 1991 (Cth), read in context, reveal an intention on the part of the legislature to replace the previous complex and uncertain common-law position with a single overall scheme for the treatment of social security payments in the event that a recipient of those payments obtains a damages award. That scheme precludes the receipt of ‘compensation affected payments’ from being considered in a damages assessment, and provides for their repayment, or partial repayment, to the Commonwealth in accordance with a relatively-straightforward formula.

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today.

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.

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