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Child sexual abuse victim accuses law firm of negligence
A law firm was accused of negligently advising a victim of institutional child sexual abuse to settle his claim against the state of Victoria.
Naomi Neilson
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A Victorian man who was sexually abused by physical education teacher and sports coach John Coogan claimed he is unable to obtain a judgment against the Christian Brothers because of the alleged negligence of NSW firm Kelso Lawyers.
Appearing before the Supreme Court of Victoria this month, the firm argued the man’s negligence case should be tossed out.
The man said the abuse began at North Geelong High School in 1971 and continued through to 1974, even after Coogan moved to the Christian Brothers at St Joseph’s College in North Melbourne.
In June 2018, almost a year after it was retained, Kelso Lawyers wrote to a barrister for advice and was told the man’s case against the Christian Brothers “didn’t look promising”.
A settlement was reached for $250,000 in October 2019, and the man signed a deed to release the state of Victoria from further action.
The following month, Kelso Lawyers told the man there was no viable cause of action to pursue against the Christian Brothers and “no evidence to suggest the Christian Brothers were on notice about Coogan (being an abuser) before or during his time at the school”.
Kelso Lawyers said that while the state of Victoria was released from further action, this did not apply to the Christian Brothers, and so it would be an “abuse of process” to allow the case to proceed.
The firm added that should the court allow the man to continue against it rather than pursuing a claim against the Christian Brothers, this “could potentially open the floodgates to parties seeking to choose the ‘easy’ path of litigating a hypothetical claim”.
There were also a number of complaints about the man’s amended statement of claim, including an allegation that the claim against the Christian Brothers has been “damaged and/or marginalised” because of the firm’s advice to settle with the state of Victoria.
The man told the court he could not pursue a claim against the Christian Brothers because it is likely the institution would seek to add the state of Victoria as a third party, which would make it impossible for him to formulate a case against it.
He added Kelso Lawyers is “now attempting to force the plaintiff to make a baseless claim which would likely result in him having to indemnify the state should this claim be successful”.
While the man originally argued the law firm’s alleged negligence meant he “lost” an opportunity to pursue a claim against the Christian Brothers, he conceded there was no basis to make this claim.
Due to this concession, Justice Mary-Jane Ierodiaconou said it was unnecessary to make orders for Kelso Lawyers’ summary dismissal application but agreed the statement of claim was not appropriate.
The reference to alleged damage or marginalisation by the firm was struck out, as were other “embarrassing” pleadings.
The man was given another opportunity to replead his case.
“If the plaintiff alleges that the defendant is negligent for failing to advise him to issue proceedings against the Christian Brothers, he should clearly plead that,” Justice Ierodiaconou said.
“However, the plaintiff should not attempt by a pleading sidewind to claim a loss of opportunity having now correctly conceded that no such claim can be made.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
