By: Richard Leder, Jacquie Goodwin, Blake Pappas and Deniz Coskundag

Footscray Football Club Ltd v Adam Kneale [2024] VSCA 314


At a glance

  • The Victorian Court of Appeal has allowed the Club’s appeal against the quantum of Mr Kneale’s general damages and economic loss claim, significantly reducing the jury’s $5.9 million award of damages to $2.6 million.
  • The Court of Appeal has clarified that indexation on past loss of earnings is permissible.


Background and decision at first instance

The Plaintiff/Respondent, Mr Adam Kneale (Mr Kneale) sued the Footscray Football Club (Club) for abuse perpetrated by Graham Hobbs (Hobbs) in the 1980s when Mr Kneale was a child.

Mr Kneale would attend the Western Oval as a spectator to watch games and training. Mr Kneale was not a member of the Club or a junior player.

Hobbs was an unpaid, ad hoc volunteer for the Club. He participated in fundraising activities, including selling season tickets and raffle tickets on game days. Hobbs also had a role in the nature of ‘jack of all trades’ with the Club’s ‘Under 19’s’ team, which included tasks such as filling water bottles, laying out food and other similar duties.

Mr Kneale sought compensatory, exemplary and aggravated damages from the Club for injury, loss and damage alleged to have been caused as a result of the abuse perpetrated by Hobbs.

Mr Kneale alleged the Club was liable in negligence.

Mr Kneale also pleaded that the Club was vicariously liable for the torts of assault and battery committed by Hobbs. However, the trial judge, Richards J determined a sporting club could not be vicariously liable for the actions of an ad hoc volunteer and the issue was withdrawn from the jury’s consideration.

The trial was held before the Supreme Court of Victoria between October and November 2023 before Richards J.

On 9 November 2023, a jury found that the Club was liable in negligence and awarded judgment against the Club in the sum of $5.94 million, including the following award of damages:

  • $3,250,000 for pain and suffering and loss of enjoyment of life
  • $2,605,578 for past loss of earnings and loss of earning capacity, and
  • $87,573 for future medical and related expenses.

Key appeal issues

The Club appealed on the verdict of the jury on liability and damages on various grounds. The key appeal issues are summarised below.

No duty of care owed

Mr Kneale pleaded that the Club owed him, a child spectator at the Western Oval, a duty to take reasonable care for his safety and protect him from unnecessary risk, including from sexual abuse.

The Club admitted to occupier’s liability but denied that sexual abuse was a foreseeable risk of being a spectator, limiting its duty of care.

The trial judge, however, ruled that the pleadings went beyond occupier’s liability and instructed the jury to consider a general duty of care to child spectators.

The Club appealed on the ground that the trial judge erred in defining the scope of duty in the jury charge.

Award of damages for pain and suffering was manifestly excessive

The Club also appealed from the jury’s award of damages. The Club argued that the damages awarded were unreasonable and beyond what a properly instructed jury could have reasonably determined.

The jury’s award of $3.25 million in general damages, in the Club’s argument, could only be the product of the jury taking into consideration irrelevant or punitive considerations.

Past loss not to be indexed

Richards J ruled that past loss of earnings should be indexed for inflation to reflect the value of past losses in “today’s money.” Richard J found that failing to apply indexation would leave Mr Kneale in a worse position than if the abuse had not occurred.

The Club appealed, arguing the trial judge erred in applying indexation to past economic loss, as it had never been awarded in Victoria, and that it violated s 60 of the Supreme Court Act 1986, which grants interest on damages from the date of the writ.

Discount for future losses

A 5% discount rate usually applies to future economic loss under Part VB of the Wrongs Act 1958 (Vic). However, the trial judge found it did not apply to Mr Kneale’s claim due to section 28C(2), which excludes sexual assault claims. The Court instead applied a 3% discount rate.

Decision

The Victorian Court of Appeal on Thursday, 12 December 2024 delivered its judgment. The decision was split 2 to 1, with Emerton P dissenting in part to the majority decision of Beach JA and Forrest AJA.

Emerton P found that the appeal should be allowed in full, i.e. that it was not open to conclude that the Club knew or ought to have known of the reasonably foreseeable risk of injury that Hobbs posed to young boys who attended the Western Oval in the 1980s. However, the majority ruled the Club was liable to Mr Kneale.

The Court of Appeal upheld the Club’s appeal against the award of damages and significantly reduced the initial award of damages to the sum of $2,637,573, including the following:

  • $850,000 for pain and suffering and loss of enjoyment of life
  • $1,700,000 for past loss of earnings and loss of earning capacity, and
  • $87,573 for future medical and related expenses.

In support of his economic loss, Mr Kneale relied on his forensic accountant expert’s assessment of various employment scenarios that he could have progressed to, had the abuse not occurred. The Court of Appeal considered the evidence and ruled “there is simply insufficient evidence to establish the possibility of Mr Kneale progressing to those positions or levels of income.” The Court allowed the appeal on the verdict of economic loss and re-assessed the award for damages to $1,700,000.

The Court of Appeal further ruled that indexation on past economic loss is permissible, stating that there was no authority to say it cannot be claimed, and it is not excluded by the Supreme Court Act interest provisions.

Implications

Following its decision in TJ (a pseudonym) v The Bishop of the Catholic Diocese of Wagga Wagga Mark Edwards [2023] VSC 704 last month, the Victorian Court of Appeal has now provided significant guidance in assessing damages in historic abuse cases.

Together with the recent High Court decision in Bird v DP [2024] HCA 41 regarding vicarious liability, survivors of abuse and institutions may find it easier to reach common ground when assessing cases.

Richard Leder, Jacquie Goodwin, Blake Pappas and Deniz Coskundag of Wotton Kearney represented the Applicant, Footscray Football Club, in this appeal.