Abuse Law – Case Law Update – Vicarious Liability & Aggravated & Exemplary Damages – Kneale v Footscray Football Club Ltd [2023] VSC 679

In the recent matter of Kneale v Footscray Football Club Ltd [2023] VSC 679, the plaintiff, Adam Kneale, commenced civil proceedings in which he sought damages from the defendant, Footscray Football Club Ltd, in relation to psychological injuries and losses he sustained as a result of sexual abuse perpetrated by Graeme Hobbs and other.

The plaintiff’s family moved to West Footscray in 1984 when he was 11 years old. From that time, the plaintiff went regularly to the nearby Western Oval as a spectator, both on game days and to watch training during the week. At the Western Oval, the plaintiff met the perpetrator, Graeme Hobbs, who was a volunteer with the Club. Graeme Hobbs groomed the plaintiff and, between 1984 and 1989, sexually abused him and trafficked him for abuse by others. Most of the abuse took place on game days at the Western Oval, in the Club’s administration offices in the EJ Whitten Stand.

The trial of the plaintiff’s proceedings commenced on 17 October 2023, with the jury retiring to consider its verdict on 8 November 2023. On 9 November 2023, the jury of the Victorian Supreme Court found that there was negligence on the part of the defendant that was a cause of the plaintiff’s injuries. The jury assessed damages of $3.25 million for pain, suffering and loss of enjoyment of life, around $2.6 million for past loss of earnings and loss of earning capacity, and around $85,000 for future medical and related expenses.

Vicarious Liability

Although the plaintiff pleaded that Graeme Hobbs was employed by the defendant, he did not advance that case at trial. The plaintiff opened his case on the basis that Graeme Hobbs was a ‘well known and special volunteer’ at the Footscray Football Club. The plaintiff relied on the decision of Bird v DP [2023] VSCA 66 to support his contention that vicarious liability could apply to the relationship between the defendant Club and Graeme Hobbs, even though Graeme Hobbs was not employed by the defendant Club. However, the trial judge held (at [36]) that the relationship between the defendant Club and Graeme Hobbs in this case did not remotely resemble the relationship in DP v Bird. Graeme Hobbs’ roles with the defendant Club were informal, undocumented, and uncertain. Although the handling of money by volunteers was supervised, there was no evidence that the defendant Club exercised control over Graeme Hobbs in relation to any other aspect of his work. There was no evidence that the defendant Club clothed him with authority to represent it in anything other than selling tickets and raising funds. There was no evidence that Graeme Hobbs wore a uniform or any garments associated with the defendant Club.

For those reasons, the Victorian Supreme Court held that there was no evidence on which the jury could reasonably have found that the relationship between the Club and Hobbs was one in which vicarious liability could arise.

Aggravated Damages

The trial judge concluded (at [48]) that there was no evidence on which the jury could reasonably have awarded aggravated damages in this case, for the following four reasons:

1. The only basis on which the Club could be held liable was in negligence, for failing to notice or act on ‘red flags’ raised about Hobbs as early as 1981, and failing to exclude him from the Club before 1992. While there was a case to go to the jury that the Club ought to have known of the risk of a child spectator being sexually abused by Hobbs, there was no evidence that it had actual knowledge at any time before 1993. If the jury were to find the Club liable in negligence, it would be because of its omissions, and not due to any deliberate or conscious wrongdoing.

2. There was no evidence that anyone at the Club other than Hobbs knew of Mr Kneale’s existence before May 2022. It might have been different if he was a player, a member, or a volunteer with the Club, but that was not this case.

3. There was some evidence that the Club knew that Hobbs had been charged and convicted. It was open for the jury to find that Mr Smith was told that Hobbs had been questioned in relation to child sex offences committed at the Western Oval. The jury could conceivably have inferred that someone at the Club must have been aware of The Western Times report of Hobbs’ plea hearing, although that would have been against the weight of the evidence. However, there was no evidence that anyone at the Club knew that Mr Kneale was the victim, or had any means of identifying or contacting him.

4. While I accepted that Mr Kneale’s suffering was increased by the lack of any acknowledgement from the Club, it was impossible to characterise the Club’s indifference as malicious, deliberate, insulting, or high-handed.

If the jury were to find the defendant Club liable in negligence, it would be because of its omissions, and not due to any deliberate or conscious wrongdoing. There was some evidence that the defendant Club knew that Graeme Hobbs had been charged and convicted. However, there was no evidence that anyone at the defendant Club knew that the plaintiff was the victim, or had any means of identifying or contacting him. While the judge accepted that the plaintiff’s suffering was increased by the lack of any acknowledgement from the defendant Club, it was impossible to characterise the defendant Club’s indifference as malicious, deliberate, insulting, or high-handed.

Exemplary Damages

The trial judge accepted that it was open to the jury to find that the defendant Club had been negligent, and that its negligence had caused profound injury to the plaintiff. However, there was nothing to support a finding that the defendant Club’s negligence had been deliberate, or intentional, or involved a reckless disregard of the plaintiff’s welfare. There was no evidence that the defendant Club knew during the 1980s of Graeme Hobbs’ sexual abuse of the plaintiff or any other child. The red flags that were raised about Graeme Hobbs, in particular by Mr Macpherson, were not that definitive. They did not amount to evidence that anyone at the defendant Club knew or even suspected that Graeme Hobbs was a sexual predator of children. On the evidence, the jury could not reasonably have found that the defendant Club had deliberately, intentionally, or recklessly exposed a child spectator such as the plaintiff to the risk of being sexually abused by Graeme Hobbs. At most, it could reasonably have found that the defendant Club ought to have known of the risk and failed to do anything to respond to that risk.

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today.

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.

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