Comensoli v. O’Connor [2023] VSCA 131, 1 June 2023.
Case No: [2023] VSCA 131
Date of Judgement- 1st June 2023.
Vicarious liability is a legal principle that allows one party to be held liable for the wrongful actions of another party, who is acting on behalf of the first party. Recognizing sexual harassment occurs when a person is put in a position of power by the principal employer, the principal employer becomes liable to prevent any such situations and act appropriately and promptly if such issues are brought forward. This case also highlights accountability within religious institutions and the profound effect of sexual harassment that impairs the quality of life of the victim.
Brief History of 2022 case:
The Respondent, a pupil at the Catholic primary school in Kilmore, and who served as an altar boy at the local church was sexually abused between 1968-1970 by Gannon, a Catholic priest in the Archdiocese of Melbourne and an appointed priest in the Kilmore parish. The Archdiocese being unincorporated, the appellant was named as a proper party (defendant) in the original case as per the Legal Identity of Defendants (Organisational Child Abuse) Act 2018.
At the tender of 11, the Respondent was subjected to Sexual Harassment which caused both physical and emotional trauma and affected the Respondent’s life and the choices he made. In the 2022 proceeding, the Respondent brought proceedings in the Supreme Court of Victoria claiming damages for injuries he suffered and additionally claimed negligence by the Archdiocese which resulted in his abuse and as such was vicariously liable for the abuse. The Respondent claimed that there was a relationship which was akin to employment between the Archdiocese and Gannon while relying on the judgement of DP v. Bird. Highlighting, the position of power that Gannon held was a result of an appointment made by the Archdiocese. The Respondent was successful in his institutional abuse claim and was awarded damages & the court concluded that there existed a relationship of employment and upheld the vicarious liability claim. The Court also noted the evidence regarding abuse of alcohol and drugs and crimes committed by the Respondent as a result of mental trauma he suffered from Sexual Harassment.
General damages were AU$525,000; Economic Loss damages were AU$1,500,000.
The Court of Appeal:
The Appellant challenged the court’s decision and brought the claim on 5 grounds, that the general damages awarded were excessive; that the economic loss damages award was erroneous, and the argument was based on the disconformity with awards in other cases. Additionally, the Appellant only wished to present arguments on the assessment of damages and argued that there existed no recent medical evidence of the respondent’s alcohol addiction amongst other reasonings.
Findings:
The Court found that the award for general damages though was high but was not manifestly excessive and nor did any of the matters raised in the appeal vitiate the award granted earlier. The Appellant accepted that the abuse was horrific. It was held that the Trial Judge was right in reaching its decision stating that it was of vital importance to note the tender age at which the Respondent was subjected to grave sexual abuse. It was also important to draw a stark comparison between the life of the Respondent and that of his siblings. The Court noted that each award is a product of its own facts and thus the leave to appeal was refused.
Written by – Isha Khorana