A decision in Lonergan v Trustees of The Sisters of Saint Joseph & Anor [2021] VSC 651 delivered in October 2021 concerned allegations of sexual abuse of a child by a priest, and whether a prior settlement between the parties should be taken into account and in effect offset against the current assessment by the court. RMB Special Counsel MARGARET CURRAN explains:
The plaintiff in this case was a victim of child sexual abuse perpetrated by Parish Priest Father Brian Coffey while he was a student at Saint Josephs Primary School in Victoria from 1973 to 1974. The plaintiff suffered post-traumatic stress disorder as a result, and successfully sued both the Catholic Diocese of Ballarat and the Sisters of Saint Joseph in negligence. Liability was eventually admitted.
The Court found that the abuse caused significant psychiatric injuries and had an adverse effect on the plaintiff’s education and that he suffered a loss of earning capacity since leaving school at the age of 17 with a continuing incapacity for alternative work. The plaintiff’s claim for economic loss was discounted by 40% as there was a finding that the plaintiff would have been a farmer in any event.
The Presiding Judge assessed damages at $650,000, made up of $250,000 for pain and suffering, $10,000 for future treatment expenses and $390,000 for economic loss.
The plaintiff made a claim in 2000 for compensation which was settled by way of a confidential agreement for the sum of $45,000.
The Court considered whether the previous settlemen tin 2000 should be taken into account in the current settlement. The parties agreed the settlement should be set aside.
The Court concluded that it was neither just nor reasonable to take account of the amount paid under the initial settlement agreement by setting it off against the assessment of damages by the Court. The Court held at (par 217)
“For the following reasons I conclude that it is neither just nor reasonable to take account of the amount paid under the settlement agreement by setting it off against damages assessed in this proceeding.
First, the Diocese obtained the real benefit of Mr Lonergan maintaining the confidentiality of the first settlement, yet Bishop Connors breached that term of the agreement when he communicated details of the settlement to Mr Lonergan’s cousin.
Second, the compensation paid to Mr Lonergan under the settlement was very modest because of the legal barriers to prosecution of a claim against the defendants that he faced at the time.
Third, the defendants have had the considerable benefit of protection by those barriers from a claim for adequate compensation for decades.
Fourth, as I have already observed, Mr Lonergan is disadvantaged by the lapse of time since past loss was suffered and the effects of inflation, compounded by the unavailability of interest from the date of the cause of action.”
This case highlights those previous settlements should not be taken into account in future assessment of damages in historic sexual abuse matters where this would have been unjust or unreasonable.
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