McDonald found the law was not confined to a primary victim of clerical abuse and could extend to a victim’s family members.
“The plain meaning of the words ‘founded on or arising from child abuse’ in … the act includes a claim for nervous shock brought by a parent of a child alleged to have been sexually abused,” the judge said in his written findings.
The archdiocese’s lawyers had argued RWQ’s claim did not apply to the church because it arose from the alleged abuse of the man’s son.
But McDonald said the repeated use of the words “founded on or arising from child abuse” in the law “points strongly to the conclusion that the application of the act to [non-government organisations] is not confined to claims by primary victims of child abuse”.
“To conclude otherwise renders the words ‘arising from child abuse’ otiose,” he wrote.
RWQ alleges the Melbourne archdiocese, as the first defendant, owed him a duty of care to protect him from mental harm, and that it breached its duties.
In legal documents, he claims he suffered psychological harm including anxiety, a depressed mood and a bereavement disorder since his son’s death, compounded by past and future medical costs.
He also claims Pell “was not a fit and proper person to serve as a priest nor as archbishop of Melbourne”, and that the archdiocese breached its duty of care by failing to protect children.
The passing of the Legal Identity of Defendants Act in Victoria in 2018 closed a loophole for the church to avoid financial liability under the so-called Ellis defence, named after John Ellis, a former altar boy abused by a priest.
His case for compensation failed when the church successfully argued in a NSW court it could not be sued because it did not exist in a legal sense, because property assets were held in a trust immune to lawsuits.
While archbishop of Sydney between 2001 and 2014, Pell backed the use of the Ellis defence when the church defended civil claims made by abuse victims. It is estimated the strategy saved the church from paying out many millions of dollars to abuse survivors.
Pell, 81, rose from being Australia’s most senior Catholic figure to become the treasurer of the Vatican, until his criminal case in effect ended his tenure in the senior ranks of the church.
RWQ’s case will return to court at a later date. His lawyers declined to comment.
A spokeswoman for the Archdiocese of Melbourne said: “We acknowledge the judgment handed down by his honour … and will be working through what that means in coming days.”
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