In the recent matter of O’Connor v Trustees of the Christian Brothers [2025] VSC 65, the plaintiff, Mr John O’Connor, commenced court proceedings seeking damages against the defendant, the Trustees of the Christian Brothers, for injuries he alleges he suffered whilst a student at a school operated by the defendant, being St Patrick’s College in Ballarat.
The plaintiff was sexually abused by former Christian Brother Edward Dowlan, and allegedly physically abused by other Christian Brothers and lay teachers. In this proceeding, the plaintiff claims damages from the defendant, however, the plaintiff had previously released the defendant from claims relevant to the abuse. The release was recorded in a deed of release dated 11 May 2017 and executed in January 2018 (the ‘prior deed’), under which the plaintiff had received monetary compensation from the defendant. The defendant says the prior deed bars the plaintiff from claiming damages in the current proceeding. The plaintiff applies to set aside the prior deed pursuant to sections 27QD and 27QE of the Limitations of Actions Act 1958 (Vic) (‘LAA’). The defendant opposes the application.
The question for determination by the Court is whether it is just and reasonable to set aside the settlement deed, wholly or partly.
Of relevance, the Court provides as follows in its consideration:
At the time of the plaintiff’s settlement conference, the limitation legislation in Victoria had been amended to remove the time limit to bring an action about the physical or sexual abuse of a minor, and any accompanying psychological abuse (at [117]).
Having reviewed the evidence on other potential legal barriers, the trial judge held at [114]:
Here the defendant did not rely on the Ellis defence, nor did it rely on an Ellis-type defence. The defendant nominated Nangle and Naughtin and confirmed that they and their estates were indemnified. This removed the legal barrier. The nomination by the CBP 12 August 2016 email stated that the school was operated by the defendant in the person of the Province Leader (Naughtin, deceased), who delegated authority to the Principal (Nangle). This was not a situation where strangers to the school were nominated. Accordingly, the Ellis defence was not, in actual fact, a barrier to Mr O’Connor at the time of settlement.
The evidence showed that the Ellis defence was not a material factor impacting on the plaintiff’s decision to enter into the prior deed.
The plaintiff did not advance any arguments about his legal representation or any unequal bargaining power, save for his submissions outlined above regarding the inherent unequal bargaining power due to the existence of the Ellis defence. The plaintiff entered into the prior deed many months after the settlement conference and after having received legal advice from Waller Legal and a solicitor at another firm that he should do so. There was no evidence that the plaintiff was placed under undue pressure by his legal representatives.
At [177] to [179], the Court provided as follows:
Mr O’Connor had a reasonable prospect of success when he entered into the prior deed. He had been sexually abused by Dowlan, who had been criminally convicted. The Christian Brothers operated St Patrick’s College in the person of the Province Leader, who delegated authority to the Principal. Mr O’Connor was sexually abused while he was a student at St Patrick’s College. The Christian Brothers owed a duty of care to him.
Mr O’Connor’s case had some risk in establishing breach of duty. Other boys were sexually abused by Dowlan at the same time. There is a question as to whether Naughtin and Nangle had knowledge of the abuse by Dowlan (and indeed other Brothers) prior to the abuse of Mr O’Connor.
Whilst Mr O’Connor had a good prospect of establishing pain and suffering consequent to the abuse, there was a real risk of this being significantly discounted due to the other sexual and physical abuse that occurred before the abuse by Dowlan. There was a difference in the medical opinion obtained before the settlement conference as to the extent the abuse had caused him to suffer major depressive disorder (and whether this was in remission), whether it had caused him substance abuse disorder, and its impact on his ability to earn income. Nevertheless, even accounting for this risk, the settlement sum, which provided for primarily pain and suffering damages and an allowance for economic loss, was a modest sum at the time.
Ultimately, on 28 February 2025, having considered the above and other factors (some of which were neutral and others of which favoured the plaintiff’s application), the Supreme Court of Victoria held that it was not just and reasonable to set aside the prior deed.
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