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Abuse: Earning capacity damages & demographics.

Lonergan v The Trustees of the Sisters of St Joseph & Bird [2022] VSCA 208 (on JADE).

The applicant was sexually and physically abused while a pupil at St Joseph’s Primary School and an altar boy at St Joseph’s Church in Ouyen, north west Victoria, when about 12 and 13 years of age in 1973 and 1974. He was abused by the parish priest of the church who also carried out a role at the school. Breach of duty was admitted.

The damages awarded included $390,000 for past and future economic loss, the adequacy of which was one of the issues on appeal. This note focuses on ground 1 of the appeal, the economic loss ground.

Because the applicant was injured whilst young and before entering employment, there was no identifiable trade, profession or occupation to guide the assessment. But, the judge had evidence upon which it was open to him to conclude that the appropriate demographic characteristics to attribute to the applicant, without injury, were those of a male resident in north-western Victoria who had no post-school education qualifications.([51]).

Neither of the applicant’s siblings had post-school qualifications and there was no evidence that his academic record was particularly different to theirs. ([52]).

As for the geographical aspect of the demographic, there was a considerable body of evidence upon which it could reasonably be thought that the applicant would, as a matter of probability, spend his working life in north-western Victoria, whether as a farmer or in some other occupation. His family resided there; he had close childhood connections to his grandparents, aunt and uncle who lived there; his wife came from the region and, after studying in Melbourne, she preferred to return there to live and work; his parents and his wife’s parents were themselves farmers in that region and gave the applicant and his wife land in the region to live on and to farm; and, although he was not as keen as farming as his older brother, the applicant was experienced at farming from an early age. Of course, there remains the possibility that the applicant would have moved out of the north-western region to live and work, absent his injury. But, even so, it was at least open to the judge to accept that the appropriate demographic by which to assess the applicant’s future earning capacity was by reference to a male in north-western Victoria.([53]).

On appeal the Court held that on the evidence presented it was reasonably open to the judge to conclude that the projected earnings of the applicant, without injury, should be assessed by reference to the median income of a hypothetical male, north-western Victorian who had no post-school education qualifications. ([55]). Accordingly leave to appeal based on this ground (ground 1) was not granted.

Leave to appeal was granted in respect of ground 3 (the submission that the trial judge erred in discounting the applicant’s economic loss by 40 per cent on account of the possibility the applicant would have been a farmer in any event). However the applicant did not persuade the Court that the discount the judge applied could not be supported on the evidence. ([90]).

[BillMaddensWordpress #2040]

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