By: Jonathan Maher and Tushka Sridharan

At a glance

  • The Court of Appeal reduced the jury’s $1.1 million award of pain and suffering damages to $550,000, deeming the original amount “manifestly excessive”, aligning it with judge-alone awards in similar cases.
  • The jury’s $1.3 million exemplary damages award was set aside entirely, with the Court of Appeal emphasising that awards of exemplary damages are rare, require improper or unjustifiable conduct, and must be moderated.
  • The Court of Appeal clarified that exemplary damages claims tied to non-admissions in pleadings or prior complaints are unlikely to succeed without clear evidence of a conscious or contumelious disregard of the plaintiff’s rights.

On 8 November 2024, the Victorian Court of Appeal handed down a judgment reassessing pain and suffering damages and setting aside a significant exemplary damages award in a historical abuse case. 

The appeal was brought following a jury verdict in the Supreme Court of Victoria in November 2023 in TJ (a pseudonym) v Bishop Mark Edwards of the Roman Catholic Diocese of Wagga Wagga. 

Relevantly, the Court of Appeal provided guidance on: 

  1. pain and suffering damages in psychiatric injury and historical abuse matters where a statutory cap on pain and suffering damages does not apply, and 
  2. a plaintiff’s entitlement to exemplary damages arising from: 
    • a prior complaint of abuse in respect of the same perpetrator, and the defendant’s purported knowledge and/or response to the complaint, and 
    • a defendant’s pleadings and the timing of pleading amendments.

Pain and suffering damages

The jury awarded the plaintiff $1.1 million for pain and suffering damages.

For that award to be set aside, the Court of Appeal had to be satisfied that it was “manifestly excessive”. Although the jury was not constrained by any statutory cap in terms of a maximum award, having considered the entirety of the evidence and taking the plaintiff’s claim at its highest, the Court of Appeal determined that the jury’s award was “manifestly excessive”, warranting reassessment. 

The award of pain and suffering damages was therefore reduced to $550,000, more consistent with “judge alone” awards in Victorian historical abuse proceedings. 

Exemplary damages

The jury also awarded the plaintiff $1.3 million for exemplary damages based on: 

  1. an alleged failure of the defendant to adequately respond to a prior complaint of abuse by the same perpetrator, and 
  2. the timing of the defendant’s admission in its pleadings that the abuse had occurred.

The Court of Appeal set aside the exemplary damages award in its entirety. 

In doing so, it considered the circumstances in which exemplary damages are warranted, noting that it is an “exceptional remedy” and cannot be awarded “unless there is a lack of bona fides in the defendant’s conduct or the defendant’s conduct is otherwise improper or unjustifiable”. The Court of Appeal also emphasised that even if exemplary damages are justified, there is a “need for moderation” and should only be awarded if the compensation to the plaintiff alone is “insufficient to punish the defendant”, to “mark the court’s disapproval of such conduct” and to “deter the defendant from repeating it”. 

Key takeaways

  • Even when a jury is not constrained by statutory caps in awarding pain and suffering damages, the award cannot be “manifestly excessive”. In assessing what is “manifestly excessive”, the plaintiff’s evidence is to be taken at its highest and viewed as that “most favourable to the plaintiff”.  In respect of pain and suffering damages, that includes consideration of the quality and nature of plaintiff’s life post-abuse, including the ability to maintain relationships and employment, and consideration of the plaintiff’s injuries and their consequences. 
  • Claims for exemplary damages due to non-admissions in pleadings are unlikely to succeed absent evidence of a “conscious and contumelious disregard” of the plaintiff’s rights. In particular, non-admissions of allegations of abuse ought not create an entitlement to exemplary damages in circumstances where a defendant’s pleadings, viewed over the course of the proceeding, depict a defendant “attempting to make more appropriate admissions as the case progresses”. 
  • Similarly, claims for exemplary damages arising from a prior complaint are unlikely to succeed unless the plaintiff adduces compelling evidence as to the circumstances of that complaint – such as the position and role of the recipient of the complaint vis a vis the named defendant, and the response to the complaint. 
  • Assessing economic loss, particularly in historical matters, is “not a precise science” and will turn on the facts of the case.

Wotton Kearney acted for Bishop Mark Edwards of the Roman Catholic Diocese of Wagga Wagga in this case.