The Appeal is part of a broader trend in Victorian Courts recently to remind juries that irrelevant and punitive considerations should not cloud their minds when evaluating the evidence and determining an award of damages.

1. Sporting clubs owe a duty to take reasonable care to avoid foreseeable risks of injury which they knew or ought to have been aware of, even if those individuals are not directly connected to that sporting club (i.e. a spectator). This duty of care is not limited to the condition of the premises;

2. The Court of Appeal considered the jury's general damages award for pain and suffering and loss of enjoyment of life of $3,250,000 was "far too high" and not an award that the jury could have reasonably arrived at by confining itself to relevant matters, thus reassessing it to $850,000; 

3. The Court of Appeal considered the jury's award for economic loss of $2,605,578 was founded on speculation and made no allowance for adverse contingencies, thus reassessing it to $1,700,000; and

4. Indexation of past economic losses is the consistent and settled principle of compensation as it puts a plaintiff in the same position they would have been if the tort had not been committed.

Adam Kneale (Plaintiff) brought a claim against Footscray Football Club (Club) on the basis that he was allegedly abused by Graeme Hobbs (Hobbs), an unpaid volunteer of the club, in the 1980s, when the Plaintiff was a child. Importantly, the Plaintiff was not a member of the Club and attended the Club grounds purely as a spectator at the time of the alleged abuse. 

On 1 November 2023, after the Club had closed its case, the judge heard the Club's application pursuant to section 62 of the Civil Procedure Act 2010 for summary dismissal of the Plaintiff's claim against it on the basis of its vicarious liability for Hobbs' actions. In addition, the Club sought that the claims made by the Plaintiff for aggravated and exemplary damages be dismissed. The judge acceded to these applications and each of those issues was removed from the jury's determination. Accordingly, the sole issue to be resolved by the jury was whether the Club had breached its duty of care owed to the Plaintiff (i.e., direct liability as opposed to vicarious liability for Hobbs' actions) and, if so, the appropriate award for general damages, economic loss damages, and medical and like expense. 

The Club sought leave to appeal, in general terms, on grounds that: 

1. the judge's directions to the jury in relation to the scope of the duty of care owed by the Club to the Plaintiff were erroneous (appeal ultimately dismissed);

2. the trial was unfair to the Club by reason of multiple factors, including: several decisions of the judge as to the admission of evidence; deferral of the Club's summary judgment application until the conclusion of the evidence; and comments made during the closing address by counsel for the Plaintiff (appeal ultimately dismissed);

3. the judge's directions as to the way the jury was to calculate economic loss (both past and future) were erroneous; and

4. the jury's verdicts as to both the Club's liability and the Plaintiff's damages were not reasonably open on the evidence adduced at trial.

The Court of Appeal ultimately dismissed appeal grounds one and two above and reassessed the Plaintiff's entitlement to an award of damages, significantly reducing the global amount to $2,637,000. 

When considering an appropriate monetary award to reflect the pain and suffering caused to the Plaintiff by the Hobbs abuse, the Court of Appeal acknowledged that the evidence at its highest for the Plaintiff was that he led a tragic life (albeit with the support of a loving wife and children) and that his life would have been far different to that which he would have had but for Hobbs' abuse. However, the Court of Appeal could not accept that a verdict of $3,250,000 was one that a jury, properly instructed, confining itself to relevant matters, could reasonably have arrived at. The Court of Appeal referenced other recent historical abuse judgements, namely the decision in The Bishop of The Roman Catholic Diocese of Wagga Wagga, Mark Edwards v TJ (a pseudonym) [2024] VSCA 262, which emphasised proportionality in compensating for pain and suffering.

When considering the jury's award of past loss of earnings, the Court of Appeal determined that the jury's verdict was 'founded on speculation' contained within a forensic accountant report furnished on behalf of the Plaintiff and the jury's rationale for this head of damaged lacked consideration of any additional credible evidence. 

When considering the Plaintiff's entitlement to future economic loss, a 3% discount rate was applied, diverging from the statutory 5% usually applied under the Wrongs Act 1958 (Vic). This acknowledged the distinct nature of sexual abuse claims, where long-term impacts often require careful adjustment.

The Court of Appeal's decision highlights the sensitivities surrounding historical abuse claims. These sensitivities are heightened when a jury of everyday people within the community are asked to determine what is a reasonable amount of monetary compensation for a survivor of child abuse. Whilst no amount of money can undo the pain caused on a finding that child abuse has occurred to a victim, the Court of Appeal's reasoning, along with similar decisions such as TJ, highlight the need for a juries to ensure that they consider the evidence before them and not be influenced by irrelevant considerations.

Sporting clubs need to remain vigilant in ensuring that are implementing proper child safeguarding policies and procedures given the ramifications for everyone involved are heightened when reading decisions such as these.