In the recent related matter of Footscray Football Club Ltd v Kneale [2024] VSCA 314, the plaintiff, Mr Adam Kneale, brought proceedings against the defendant, the Footscray Football Club Ltd, seeking personal injury damages in relation to historical abuse the plaintiff suffered.
Between 1984 and 1989, Adam Kneale, a schoolboy, was the subject of regular and grave sexual abuse perpetrated by Graeme Hobbs, an adult male in his forties at the time. The abuse occurred at the Western Oval, the home ground of the Footscray Football Club (‘Footscray’). Hobbs, a volunteer, and Mr Kneale, a keen supporter of the club, initially met at a Footscray training session. Hobbs’ abuse of Mr Kneale occurred in the course of their mutual involvement with the club and usually in the administration offices at the Western Oval, although Mr Kneale was also abused at other places.
In May 1994, Hobbs pleaded guilty to nine counts of indecent assault of Mr Kneale, consisting of indecent touching, rubbing, masturbation and oral sex. He was convicted and imprisoned on those charges.
In May 2022, Mr Kneale sued Footscray on the basis that it was liable, either vicariously or directly, in negligence for the injuries sustained by him as a result of the multiple assaults by Hobbs and for Hobbs’ trafficking of him ‘for abuse by others’. Footscray did not dispute that Mr Kneale was assaulted by Hobbs at the Western Oval but denied liability for Hobbs’ actions.
Mr Kneale’s claim was heard by a judge and jury of six in the Trial Division of this Court in October and November 2023. At the close of the evidence and after hearing argument from counsel in the absence of the jury, the trial judge acceded to Footscray’s application to dismiss the part of Mr Kneale’s claim based upon the asserted vicarious liability of Footscray for Hobbs’ actions. Her Honour also dismissed his claims for exemplary and aggravated damages. However, the judge held that Footscray owed Mr Kneale a duty of care — as it had admitted in its defence — and that its alleged breach and Mr Kneale’s entitlement to compensatory damages should be determined by the jury. So, Mr Kneale’s claim against Footscray, to be resolved by the jury, was whether, over the course of the five years in which he had attended the Western Oval and been the subject of the assaults by Hobbs, Footscray had breached its duty of care to Mr Kneale, and if so, what was the appropriate award of general damages, economic loss damages, and medical and like expenses. The jury found that Footscray had breached its duty of care owed to Mr Kneale and awarded damages of $5,943,151, comprising $3.25 million for general damages and suffering and loss of enjoyment of life, $2,605,578 for past loss of earnings and loss of future earning capacity, and $87,573 for future medical (and related) expenses. On 9 November 2023, the judge ordered that there be judgment for Mr Kneale in the sum of $5,943,151, with $10,554 of that amount to be paid to Medicare.
Footscray now seeks leave to appeal the verdict. In general terms, Footscray’s proposed appeal grounds (‘grounds’) are that:
- the judge’s directions to the jury in relation to the scope of the duty of care owed by Footscray to Mr Kneale were erroneous;
- the trial was unfair to Footscray by reason of multiple factors: several decisions of the judge as to the admission of evidence; deferral of Footscray’s summary judgment application until the conclusion of the evidence; and comments made during the closing address by counsel for Mr Kneale;
- the judge’s directions as to the way the jury was to calculate economic loss (both past and future) were erroneous; and
- the jury’s verdicts as to both Footscray’s liability and Mr Kneale’s damages were not reasonably open on the evidence adduced at trial.
If this application (or part of it) is successful and the verdict is set aside, Mr Kneale, by a cross‑application, seeks to set aside the judge’s decision dismissing the part of Mr Kneale’s claim that alleged that Footscray was vicariously liable for Hobbs’ conduct.
In response to Ground 1, the Court of Appeal provided at [224] and [225] as follows:
The judge’s reasoning as to the proper construction of the admission in the context of the pleaded case against Footscray was sound. The judge was correct to accept that Footscray had acknowledged in terms that it owed a general duty of care to persons attending the Western Oval (including, it must be inferred, children such as Mr Kneale, as he then was) to avoid foreseeable risks of injury that it knew or ought to have been aware of, and that such a duty was not limited to the condition of the premises.
This Ground fails.
In response to Ground 2, the Court of Appeal provided at [270] to [272] as follows:
There was no suggestion of incoherence or inconsistency with any other legal principle.
Footscray’s submission that the scope of its duty should be limited to that prescribed by pt IIA of the Wrongs Act is not made out. For the reasons we have just set out, the content of the duty was wider and, subject to establishing reasonable foreseeability on the part of Footscray as to Hobbs’ actions, extended to taking reasonable steps to protect young boys attending the Western Oval from Hobbs’ abuse. It follows that the judge’s direction to the jury on this issue was sound and consistent with the evidence adduced at the trial.
This ground fails.
In response to Ground 3, the Court of Appeal provided at [536], [561], [587], [698] and [699] as follows:
There is no doubt that the method adopted by Mr Thompson was unusual in the assessment of Mr Kneale’s post issue loss. As was letting the jury make an award of interest within its assessment of Mr Kneale’s damages. However, as noted, Footscray raised no objection to this approach. Preferably the two concepts should not be conflated in the calculations. As a matter of practice, it would be far more sensible to conclude the indexation calculations as at the date of issue of the proceeding and then make any interest calculations from that date. In the event of a verdict, then an application for interest would be made in the usual way.
In our view, the text, context and purpose of s 28C(2)(a) supports the judge’s construction.
To put it bluntly, notwithstanding the devastating outcome for Mr Kneale as a result of Hobbs’ abuse, an award of $3.25 million is far too high and cannot stand.
Overall, we think that the contingencies either way roughly balance themselves out. We would adopt Ms Bowman’s assessment but round it up to $1,700,000 as an appropriate award for Mr Kneale’s loss of earning capacity — past and future.
The end result is that the verdict under this head of $2,605,578 should be set aside and replaced by a figure of $1,700,000.
In response to Ground 4, the Court of Appeal provided at [494] to [496] as follows:
We accept that there are occasions upon which counsel’s address will be either sufficiently inflammatory or misguided such as to mandate a discharge of the jury. However, here, in addition to our own impressions, we are conscious, as was emphasised in Havea, that the judge did not consider that at least two of the three complaints ((e) and (f)) individually warranted the discharge of the jury. Nor did the judge take the view that these complaints considered cumulatively justified such a course.
In our view, each of counsel’s comments was dealt with satisfactorily by the judge’s directions to the jury which we have set out above. To adapt what was said by Street CJ in Croll v McRae, there is no reason to believe that the course of justice has been substantially affected by the impugned remarks of counsel for Mr Kneale. Footscray has not demonstrated that a substantial miscarriage of justice occurred as a result of Mr Kneale’s counsel’s address. Unlike the position in Rees, this was a case where the various transgressions the subject of grounds 4(e), (f) and (g) were dealt with by appropriate ‘authoritative directions’.
This ground fails.
In relation to the cross-appeal, the Court of Appeal provided at [700] to [701] as follows:
Given our decision as to the question of liability, it is unnecessary to determine the cross‑appeal. We should add, however, that at the time of hearing we saw no merit in the contention that Footscray could potentially be vicariously liable for Hobbs’ actions. The decision of the High Court in Bird v DP (a pseudonym) now renders the proposition untenable.
The cross-appeal should be dismissed.
Ultimately, on 12 December 2024, the Victorian Supreme Court of Appeal held as follows:
- Footscray’s appeal against the jury verdict as to its liability to Mr Kneale should be dismissed.
- Footscray’s appeal as to the alleged irregularities in the course of the trial which it asserts should have resulted in the discharge of the jury should be dismissed.
- Footscray’s appeal against the verdict in favour of Mr Kneale for general damages should be upheld. In its place, a figure of $850,000 should be substituted.
- Footscray’s appeal against the judge’s rulings as to both the indexation of past loss of earnings and the calculation of Mr Kneale’s future loss using a 3% multiplier should be dismissed.
- Footscray’s appeal against the verdict for economic loss should be upheld. In its place, a figure of $1,700,000 should be substituted.
- There should be no alteration to the sum awarded for future medical and like expenses.
- Mr Kneale’s cross-appeal should be dismissed.
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