Comensoli v WQA: No Social Security Deductions in Abuse Damages

Comensoli v WQA [2024] VSCA 104

In the recent matter of Comensoli v WQA I, the plaintiff, WQA (a pseudonym), filed proceedings against the two defendants (Archbishop Peter A Comensoli and the Trustees of the Christian Brothers) in relation to historical sexual abuse suffered by the plaintiff between 1959 and 1961. The plaintiff’s claim included a claim for damages for past loss of earnings from January 1964 (being the month he claimed he would have entered the workforce but for his injuries) to October 2015 (the date when he reached retirement age).

The proceeding was listed for trial on 7 February 2023. On that day, however, the parties informed the Court that the proceeding had settled, subject to the question of whether certain social security payments received by the plaintiff should be deducted from the settlement amount agreed by the parties. The defendants’ contention was that the social security payments paid to the plaintiff (which were not repayable by him) should be taken into account in the calculation of the plaintiff’s damages for past economic loss, and thus deducted from the settlement sum. The plaintiff’s position was that, notwithstanding that the payments were not repayable, he was entitled to retain them, and the whole of the settlement sum was therefore payable to him by the defendants.

The dispute between the parties as to whether or not the social security payments should be deducted from the settlement sum was heard before the primary judge, Gorton J, on 24 October 2023. On 16 December 2023, in accordance with reasons delivered on 15 November 2023, the Gorton J made orders in favour of the plaintiff by giving the following answers to the following questions [at 3]:

a. Should social security payments paid to the plaintiff in the [period from 1 July 1997 to 29 October 2015] be taken into account in the calculation of damages for past economic loss, in circumstances where they are not repayable to the Commonwealth?

    No.

b. Is the Disputed Amount or any part thereof payable to the plaintiff?

    Yes.

In this matter, the Victorian Supreme Court of Appeal was required to consider matters that were to be considered in reduction of damages – in particular, Centrelink type payments made outside the preclusion period therefore not repayable to the Commonwealth.

Ultimately, the Victorian Supreme Court of Appeal dismissed the appeal and held that the primary judge was correct in holding that the legislative intent was that statutory benefits to be enjoyed cumulatively upon plaintiff’s entitlement to damages. The Court further provided at [84] as follows:

We accept that it is a cardinal principle governing the assessment of compensatory damages that an injured party cannot recover more than he or she has lost, as the authorities in this area disclose. Nonetheless, the authorities also demonstrate that, if it can be established that, in the case of statutory benefits, there was a legislative intention that such benefits be enjoyed independently of, and cumulatively upon, the right to damages, then a plaintiff, by the receipt of such benefits, may permissibly be compensated for more than he or she has lost. As the High Court recently observed in Obian v The King, in a different context, common law rules are not always absolute. The cardinal principle relied upon by the defendants in the present case gives way to the legislative intention which we have discerned from the Act, which permits the plaintiff to enjoy the benefits paid under the Act outside the preclusion period, cumulatively upon his right to damages.

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