Comensoli v O’Connor [2023] VSCA 131

In the first instance, the Respondent, Stephen O’Connor was ordered damages in the sum $1,908,647.00, plus interest, to be paid by the Applicant, Archbishop Peter Comensoli for personal injury arising from sexual assaults committed by Catholic Priest, Desmond Gannon (“Gannon”) between 1968 and 1970. 

The damages comprised of:- 

        (a) General Damages: $525,000.00;
        (b) Future Treatment: $15,000.00; and 
        (c) Economic Loss: $1,500,000.00. 

The Supreme Court found that the Applicant was both directly and vicariously liable for the tortious wrongdoing of Gannon.  

The Applicant requested leave on the basis that the Trial Judge erred in his findings of quantum resulting in an award of a manifestly excessive sum:- 

       (a) For general damages, contrary to evidence and absence of adequate reasons; 

       (b) For past economic loss, finding not reasonably based on evidence; 

       (c) The overall sum awarded for loss of earning capacity, is rounding the figure he had previously calculated upwards without providing any reason for the increase; and 

       (d) For past economic loss, not deducting from such sum the amount the Respondent had received by way of Disability Support Pensions. 

General Damages 

The Applicant in forming his case for ‘manifestly excessive’ general damages raised the following points:- 

       (a) Disconformity with awards in other cases; 

       (b) The failure to take into account tother causes of misfortune, including family dysfunction and antisocial peers; 

        (c) Overstating the effects of alcohol addiction by ignoring the circumstances in which the Applicant functioned shortly after he left school; and 

        (d) The absence of recent medical evidence relating to alcohol addition.  

The Court of Appeal noted that for damages to be manifestly excessive they must reach the point of being ‘grossly disproportionate’. The purpose of the qualifier ‘grossly’ is to recognise that the primes responsibility for the assessment of damages lies with the Court. Particularly, in circumstances of abuse cases, where there is no precise measure of general damages and the nature of the task is to put in money terms, impacts that are not readily translated into dollars. 

The Court then went on to note that the emerges in other cases do not provide set points of reference. However, other cases are not entirely irrelevant and there remains some utility in looking generally at past cases as a guide to assess reasonableness.  

Ultimately, the Court of Appeal found that although the award of $525,000.00 for general damages is high, it has not been demonstrated that it is manifestly excessive nor do any of the matters relied on constate a specific error or otherwise vitiate the award.  

The Court found that the Trial Judge was entitled to draw conclusions with the lives of the Respondent’s siblings. The siblings left school at a relatively early age, nevertheless they were able to enjoy a level of stability, in employment and relationships, that the Respondent could not achieve. The Trial Judge attributed the stark differences to the consequences of the abuse. The Court of Appeal found this conclusion to be both logical and supported by the evidence.  

The Court of Appeal found that each award of general damages will be a “product of its own facts. Reference to these cases may legitimately show that the award in this case is relatively high, but the number of a so called of comparator cases is small, and the destructive impact of child sexual abuse is becoming better understood.” 

Economic Loss 

The Applicant made three (3) points in relation to the economic loss component:- 

       (a) The Trial Judge made a calculation error in respect to past economic loss;  

       (b) The Applicant submits that the Trial Judge was wrong to round up the damages for loss of earning capacity; and 

       (c) The Trial Judge was wrong not to deduct an amount corresponding to payment received by the Respondent.  

       (d) The Court of Appeal found that, contrary to the submission of the Applicant, there was no miscalculation by the Trial Judge.  

Firstly, the Applicant submitted that the Trial Judge erred by failing to reduce the loss by actual earnings from 1 July 1973 and 31 December 1975. The Court of Appeal found that the Trial Judge was correct to ignore economic loss and earnings before 31 December 1981, given the period of incarceration.  

Secondly, the Applicant was concerned that the economic loss was rounded up to $1,500,000.00. The Court of Appeal found that “this criticism is without merit.” There is inevitably a degree of judgement and evaluation in assessing a loss of earning of capacity; based on stated assumptions, rounding the figure upwards would call for no error.  

Finally, in regard to whether damages should be reduced on account of pension receipts. The Court of Appeal found that the Applicant failed to raise this point at the original trial, and/or the Applicant had the opportunity to do so before both hearings, in the interval between delivery of reasons and final orders. The Applicant had not taken the opportunity available at trial and it is not in the interests of justice to permit the Applicant to raise the point on appeal.  

Specifically the Court of Appeal principled:- 

“The purpose of appeal is primarily the correction of error and the distinction between the first instance hearing and an appeal remains important. In the circumstances that happened there was no error in the judge not deducting an amount referable to the pension…In the absence of error, the interests of justice do not require this Court to intervene.”