Australian Broadcasting Corporation - ABC [Sydney, Australia]
November 18, 2023
By Conor Burke
Legal experts say a record $3.3 million payout awarded by a Victorian jury to the victim of a paedophile priest this month could change the way victims of sexual abuse in the church are compensated.
The Supreme Court case was the first time a civil trial against the Catholic Church had been tested before a jury, and the $3.3 million figure was the largest payout of its kind from the church to an abuse survivor.
Four men brought a case against the Diocese of Wagga Wagga in 2022 for abuse perpetrated by convicted paedophile Vincent Kiss.
Three settled out of court on the eve of the recent trial, while TJ, whose real name cannot be used for legal reasons, continued to court in the civil case in Victoria’s Supreme Court, eventually being awarded the life-changing sum.
Lawyer Judy Courtin, who specialises in representing victims of institutional child sexual and physical abuse, said the awards in this case were “highly, highly significant” and could change this area of the law.
“It is very interesting to get the opinion of the general public to see what they think … it’s a massive amount of compensation,” Dr Courtin said.
How did they reach the figure?
In terms of what a jury in this civil case could have awarded in damages, barrister and Australian Lawyers Alliance institutional sexual abuse spokesperson Andrew Morrison said there was no cap.
Dr Morrison said the jury in TJ’s case would have been “given guidance” by the judge on what compensation is “reasonable” in these cases, and would have made a judgement based on pain and suffering, past and future economic loss of earnings, and potential medical needs.
The jury awarded $1.1 million for pain and suffering damages, and $965,000 for damages for loss of past and future income.
The church argued $250,000 was the maximum the jury should award for pain and suffering.
The Diocese of Wagga Wagga continued to deny the abuse took place up until days before the trial, despite Kiss being convicted and jailed for the crimes in criminal court.
Dr Morrison said the jury likely came to such a large overall figure as a punishment for the church.
“The size of the verdict was a surprise to some, but the conduct of the church as such invited significant punitive and aggravated damages,” he said.
“I don’t know that we learn anything much [from this case] other than the church, on the face of it, is paying a heavy price for its attempts to make it as difficult as possible to settle cases.”
Another huge figure was awarded in a separate case the day before the verdict.
A separate Victorian jury awarded nearly $6 million in damages to a survivor of sexual abuse in a case against AFL club the Western Bulldogs, with $3.25 million of that awarded for pain and suffering.
Lawyer Michael Magazanik represented that survivor and said the payouts in both cases were “hugely significant” and were so large because they were heard before a jury.
Victoria is the only jurisdiction where civil cases can be heard before a jury.
“What that does, is send a message to the legal profession that jurors regard the harm done by sexual abuse incredibly seriously,” he said.
Prior to those two cases, the previous highest court-awarded payout for pain and suffering in a child abuse case in Victoria was $525,000.
Mr Magazanik says both cases serve as “a warning shot across the bow of institutions” and a signifier that “these claims are likely to become more and more expensive”.
How did we get here?
Since 2018, survivors have had access to a scheme created in the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse, which caps compensation at $150,000.
But prior to 2019, survivors of clerical abuse were limited in their claims against the church due to what is know as the Ellis Defence.
The NSW Court Of Appeal ruled in 2007 that former altar boy John Ellis could not sue the church for his abuse because it was not responsible for the actions of an individual priest.
“[They said] the actions of a priest aren’t the actions of the diocese. That was based on the argument that they don’t strictly employ priests,” said Dr Morrison, who represented Mr Ellis.
“They also ran the argument that the archdiocese isn’t a legal entity and, in any event, has no assets because the assets are all held by trustees.”
Survivors who brought complaints against priests essentially had no legal standing and were forced to take whatever compensation the church would offer.
That changed in January 2019 when the states legislated that the Ellis Defence could no longer be used.
Why is this case important?
TJ’s solicitor Kim Price, partner at Arnold Thomas & Becker, says the verdict against the Diocese of Wagga Wagga is incredibly important as it is the first time a jury in Australia has heard a case against the Catholic Church.
Mr Price says the verdict increases the amount that lawyers can anticipate they can get plaintiffs if they take cases all the way to court.
“It’s really resetting the goalposts,” he said.
If the judgement is appealed but then upheld by the Victorian Court of Appeal, the large compensation figure could also set a precedent for what payouts are considered reasonable across the nation.
Dr Courtin has represented clients against the church “hundreds of times”, including against convicted paedophile priest Gerald Ridsdale, and says the success of both survivors in the recent cases will encourage others to come forward.
“What I find is that when a client comes on board, once they’re through this process, what they’re doing is they are bit by bit reclaiming a lot of that power that was stolen from them as a child, bit by bit by bit, and that is a very healing process,” she said.
“And so what I’m seeing is, is a turning of the tables, a shift in the power base.”
Both Dr Morrison and Mr Magazanik say larger sums have been awarded to survivors in out-of-court settlements.
But these recent verdicts were made out in the open, without the confidentiality clauses that are common with settlements, which Mr Magazanik says could change how lawyers approach sexual abuse cases.
“You don’t have to accept charity from the churches. You can actually drag them towards the courtroom and make them pay for crimes properly,” he said.
“The days of deals and confidentiality should all be over.
“It’s massively important.”
Of the $3.3 million payout awarded against the Diocese of Wagga Wagga, $1.3 million was awarded to TJ for exemplary damages.
Mr Price says this was for the church’s failure to admit that the abuse took place, but also for its failure to act on a prior abuse complaint from another of Kiss’s victims.
The judge presiding over the case, Justice Stephen O’Meara, has heard arguments on whether there was a legal basis to award those damages and will make his final judgement in the coming weeks.
Mr Price says his team intends to seek inflation to be added to TJ’s compensation, which could eventually see the payout rise to more than $4 million.
He expects the Catholic Church to appeal against the verdict.
The Western Bulldogs too have indicated they would appeal the Supreme Court jury verdict.
Sexual assault support lines:
- 1800 Respect National Helpline: 1800 737 732
- Sexual Assault Crisis Line Victoria: 1800 806 292
- Safe Steps Crisis Line (Vic): 1800 015 188
- Men’s Referral Service: 1300 766 491
- Lifeline (24-hour crisis line): 131 114
- Victims of Crime Helpline: 1800 819 817