Footscray Football Club Limited (ACN 005 226 595) v Adam Kneale

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0141
S EAPCI 2024 0021

FOOTSCRAY FOOTBALL CLUB LIMITED (ACN 005 226 595)	Applicant
v
ADAM KNEALE	Respondent

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JUDGES:	EMERTON P, BEACH JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2024
DATE OF JUDGMENT:	12 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 314
JUDGMENT APPEALED FROM:	Kneale v Footscray Football Club Ltd (Supreme Court of Victoria, Richards J, 9 November 2023); Kneale v Footscray Football Club Ltd [2023] VSC 679 (Richards J)

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TORTS – Personal injury – Negligence – Sexual abuse of child spectator by volunteer with sporting club – Duty of care – Scope of duty of care owed by occupier football club to child spectators – Extent of admitted duty of care – Whether trial judge erred in ruling (and directing the jury accordingly) that applicant owed respondent a duty of care which was broader than occupier’s liability – Whether trial judge erred in failing to charge jury that applicant specifically denied the scope of any duty it owed respondent as a spectator could extend to the risk of sexual abuse – No error.

Wrongs Act 1958, pt IIA.

TORTS – Duty of care – Scope of duty of care – Whether trial judge erred by charging the jury that scope of any duty of care which could be found to be owed by applicant to child spectators attending the applicant’s premises could extend to a risk of sexual abuse by a person for whose actions applicant was not vicariously liable – No error – Judge’s direction to the jury consistent with evidence adduced at trial – Content of duty wider than that owed under pt IIA of the Wrongs Act.

Sullivan v Moody (2001) 207 CLR 562, applied.

Griffin v Brisbane City Council [2024] QCA 157; Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; Woods v Multi‑Sport Holdings Pty Ltd (2002) 208 CLR 460; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Caltex Refineries v Stavar (2009) 75 NSWLR 649, discussed.

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Smith v Leurs (1945) 70 CLR 256, considered/distinguished.

EVIDENCE – Jury verdict – Whether jury’s verdict as to liability was one which no jury acting reasonably could have reached on the evidence most favourable to respondent or was against the weight of the evidence – Whether jury properly instructed could have concluded on the evidence that applicant knew or ought to have known of risk of sexual abuse by a volunteer in relevant period – Verdict reasonably open on the evidence.

Swain v Waverley Municipal Council (2005) 220 CLR 517, applied.

Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, discussed.

PRACTICE AND PROCEDURE – Conduct of trial – Whether trial was unfair and miscarried by reason of the effect of the alleged deferral of applicant’s summary dismissal application made pursuant to s 62 of the Civil Procedure Act 2010 until the close of evidence – Trial judge did not refuse to hear or require deferral of summary dismissal application – Timing of application result of applicant’s decision – Applicant not compelled to adduce evidence on vicarious liability, aggravated and exemplary damages – Forensic choices made by applicant’s trial counsel to adduce evidence, not to seek a redirection/correction of a misdirection and not to request directions had nothing to do with judge – Applicant bound by conduct of trial counsel – Judge’s directions clear – No substantial wrong or miscarriage.

Supreme Court (General Civil Procedure) Rules 2015, r 64.37(2).

General Motors‑Holden’s Pty Ltd v Moularas (1964) 111 CLR 234; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Water Board v Moustakas (1988) 180 CLR 491, applied.

EVIDENCE – Deceased witness – Whether trial was unfair and miscarried as a result of trial judge’s decision to admit into evidence parts of police record of interview of deceased witness – Admission of statements in redacted record of interview did not create danger of unfair prejudice that substantially outweighed probative value.

Evidence Act 2008, ss 63, 135.

DPP (Cth) v Dougas [2022] NSWCCA 19, applied.

PRACTICE AND PROCEDURE – Comments by counsel – Directions –Whether trial was unfair and miscarried by reason of cumulative effect of the jury being exposed to comments made by respondent’s counsel during closing address including references to damages awards in mesothelioma cases, prejudicial material concerning applicant’s capacity to compensate respondent, personal commentary, and pejorative remarks about a witness – Whether judge’s failure to discharge jury resulted in a substantial miscarriage of justice – Any prejudice in counsel’s comments cured by judge’s directions – No substantial miscarriage of justice.

Civil Procedure Act 2010, s 62.

Murray Valley Aboriginal Cooperative Ltd v Havea [2020] VSCA 243; Croll v McRae (1930) 30 SR (NSW) 137; Smout v Smout [1989] VR 845; Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478, discussed.

DAMAGES – Psychiatric injury caused by historical sexual abuse – Pain and suffering damages – General damages for pain and suffering and loss of enjoyment of life assessed by jury at $3,250,000 – Whether award manifestly excessive – Whether award affected by irrelevant and punitive considerations – General damages award not one that reasonable jury properly instructed, confining itself to relevant matters, could have arrived at – Award excessive – Whether appellate court should reassess general damages or order retrial – Reassessment of general damages in sum of $850,000.

DAMAGES – Economic loss – Damages for past loss of earnings and loss of earning capacity assessed by jury at $2,605,578 – Whether hypothetical employment scenario underlying calculations of respondent’s accountant adopted by jury had evidentiary basis – No basis for jury verdict – Jury verdict founded on speculation and made no allowance for adverse contingencies – Reassessment of economic loss in sum of $1,700,000.

Supreme Court Act 1986, s 14(1).
Supreme Court (General Civil Procedure) Rules 2015, r 47.02.
Civil Procedure Act 2010, ss 7, 8, 9.

The Bishop of The Roman Catholic Diocese of Wagga Wagga, Mark Edwards v TJ (a pseudonym) [2024] VSCA 262; Backwell v AAA (1997) 1 VR 182; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Van Gervan v Fenton (1992) 175 CLR 327; Paul v Rendell (1981) 34 ALR 569; Lonergan v The Trustees of the Sisters of St Joseph [2022] VSCA 208; ZYX v Cable (No 5) (2023) 111 SR (WA) 104; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Lapetina v Elgee Park Pty Ltd [2024] VSCA 39; Palmer v Clark (1989) 19 NSWLR 158; Saltalamacchia v Zamagias [2024] NSWCA 184; Electrolux Pty Ltd v Siniakis [1998] 1 VR 29, discussed.

CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505, distinguished.

DAMAGES – Economic loss – Whether trial judge erred in ruling that indexation of past loss of earnings to allow for inflation was allowable – No error – Indexation of past losses consistent with settled principle of compensation to put plaintiff in same position as would have been if the tort had not been committed – Interest from the date of the writ included in respondent’s accountant’s damages assessment adopted by the jury – Whether interest calculated from the date of writ in circumstances where indexation had already been applied resulted in interest on interest in contravention of s 60(2)(a) of the Supreme Court Act 1986 – No interest on interest as indexation removed from rate of penalty interest applied.

Supreme Court Act 1986, ss 60, 60(2)(a).

O’Brien v McKean (1968) 118 CLR 540, applied.

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Struthers v Harris [1983] WAR 123, discussed.

DAMAGES – Economic loss – Discount rate for future economic loss – Whether trial judge erred in directing jury that calculations for future economic loss were required to be discounted by 3% rather than 5% following the reasoning in PCB v Geelong [2021] VSC 633 – Whether s 28C(2)(a) of the Wrongs Act 1958, which excludes operation of Part VB if the act or omission ‘concerned’ in the award of damages is sexual assault or sexual misconduct, is confined to the act or omission of the defendant – Section 28C(2)(a) not confined to the act or omission of the defendant – No error in direction to apply 3% discount rate.

Wrongs Act 1958, pt VB, pt VBA, ss 21, 28C(2)(a), 28LC.

PCB v Geelong College [2021] VSC 633; Victoria v Thompson (2019) 58 VR 583, discussed.

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Counsel
Applicant:		Mr B Walker SC with Ms GF Gray and Dr MJ Taylor
Respondent:		Mr SD Hay KC with Mr J McComish and Ms A Wharldall
Solicitors
Applicant:	Wotton & Kearney
Respondent:	Right Side Legal

TABLE OF CONTENTS

EMERTON P:

Introduction

The ‘red flags’

Discussion

BEACH JA J FORREST AJA:

Introduction

Mr Kneale’s pleaded case and Footscray’s response

Some background facts

The trial — in precis

Proposed grounds of appeal

The evidence as to Footscray’s liability

Mr Kneale
Evelyn Jamieson
Stephen Macpherson
Gary Munn
Steven Kolyniuk
Carl McCullough
Damien Christiansen
Dennis Galimberti
Bradley Spear
Stephen Smith
Graham Sherry
Darren Arthur
Peter Gordon
Hayden Stephens
Ameet Bains
Anthony Welles
Derryn Hinch
Trish Webb
Significant exhibits — liability

The evidence as to Mr Kneale’s injury and its effects

Mr Kneale
Evelyn Jamieson
Natasha Kneale
Scott Taranto
Katrina Hall
Dr Su Xin Lee
Dr Joseph Slesenger
Dr Remy Glowinski
Dr Timothy Entwistle
Mark Thompson
Melinda Bowman
Significant exhibits — damages

The judge’s directions to the jury

The jury’s verdict

Were the judge’s directions as to the scope of the duty of care owed by Footscray to Mr Kneale correct (Grounds 1 and 2)?

The pleadings
The judge’s ruling and directions to the jury
Ground 1: The nature of the admission in Footscray’s defence
Consideration — Ground 1
Ground 2: The judge’s direction as to the scope of Footscray’s duty
Consideration — Ground 2

Was the jury’s verdict as to liability one that no jury acting reasonably could have reached (Ground 3)?

Civil jury trials in this State
The role of the judge and the jury in the trial
Overturning the jury verdict on appeal
Ground 3(a): Did Footscray know or ought it have known during the period 1984 to 1989 of a risk of sexual abuse by Hobbs against child spectators at the Western Oval?
The Evidence of Mr Macpherson and Mr Smith
Consideration — Ground 3(a)
Ground 3(b): Could the jury have concluded that Footscray breached its duty of care by failing to warn Hobbs off in 1981?
Consideration — Ground 3(b)

The jury should have been discharged as a result of a cumulative series of errors in the conduct of the trial (Ground 4)

Grounds 4(a)–(c): The deferral of Footscray’s summary dismissal application and its consequences
Section 62 of the CPA
Mr Kneale’s pleaded case as to vicarious liability and aggravated/exemplary damages
The evidence at the trial relevant to vicarious liability and exemplary/aggravated damages
Background to the summary dismissal application
Consideration — Ground 4(a)
Consideration — Ground 4(b)
Consideration — Ground 4(c)
Ground 4(d): The admission of portions of Hobbs’ police record of interview
Provisions of the Evidence Act 2008
Background
The judge’s ruling
Consideration — Ground 4(d)
Grounds 4(e)–(i): The closing address of counsel for Mr Kneale
Consideration — Grounds 4(e)–(i)

Was the judge’s direction as to the indexation of past loss of earnings to allow for inflation wrong (Ground 6)?

Evidence at the trial
Section 60 of the Supreme Court Act 1986
The judge’s directions and reasons
Consideration — Ground 6

Should the jury have been instructed by the judge to use a discount rate for future economic loss of 5% rather than 3% (Ground 7)?

The judge’s directions and reasons
Relevant statutory provisions
Thompson
Consideration — Ground 7

Was the jury’s verdict as to damages one that no jury acting reasonably could have reached (Ground 5)?

The general damages verdict
Principles as to appellate review of a jury verdict of general damages
The evidence relevant to general damages
The respective cases at trial
Consideration — The general damages verdict
Reassessment of the award of general damages or retrial?
Reassessment of the award of general damages
The economic loss verdict
Mr Kneale’s pleaded case on economic loss
The evidence at the trial relevant to economic loss
The respective cases at trial
The judge’s directions to the jury
Principles as to determination of economic loss
Consideration — The economic loss verdict
Reassessment of the award of damages for loss of earning capacity

The cross-appeal

Summary of conclusions

Attachment A

EMERTON P:

Introduction

I have had the considerable advantage of reading in draft form the judgment of Beach JA and J Forrest AJA, with which I agree except in one important respect.
In my view, it was not open to the jury to conclude that Footscray (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.
Mr Kneale’s case was principally based on the evidence of Mr Macpherson’s discussions with Mr Smith in 1981 about Hobbs’ demeanour with the U19 players, viewed in the context of more general evidence concerning attendances at the ground, the attraction of the ground to children and what people at the top of the Club say they would have done if alerted to Hobbs’ demeanour.
Although, as the majority points out, juries may be best placed to determine what message is conveyed by ordinary words used in conversation, I do not accept that the very limited evidence of the discussion (or discussions) between Mr Macpherson and Mr Smith about Hobbs is capable of being construed as alerting the Club to the risk posed by Hobbs.
Accordingly, leave to appeal on ground 3(a) should be granted and the appeal allowed.

The ‘red flags’

The evidence of Mr Macpherson and Mr Smith is set out in the majority judgment at [293]–[310].
Mr Macpherson’s evidence about Hobbs was limited to the 1981 football season. Mr Macpherson was then aged 16. He was a member of U19 team and observed Hobbs in the team rooms on training nights.
Mr Macpherson gave evidence that Hobbs was at training quite regularly, at least one night of the week. He was unsure what Hobbs’ role was. Hobbs did not fit the role of trainer; he may have been filling up water bottles or doing a range of things, but Mr Macpherson did not see him on the ground at all. He saw Hobbs in the rooms where Hobbs engaged in conversation with other people.
According to Mr Macpherson, Hobbs would ‘implant’ himself in conversations with U19 players around blokeish behaviour, when the ‘young guys’ were talking about what they might have got up to on the weekend, and their interest in girls. The majority of those players would have been 17 or 18. Mr Macpherson was probably the youngest at 16.
When asked in his evidence-in-chief about Hobbs’ ‘demeanour’ when interacting with other people, Mr Macpherson said his memory was pretty clear about Hobbs being ‘quite a sleazy character’. When asked what this meant, he said it was Hobbs’ ability to ‘implant’ himself in a conversation around the goings on that players might be talking about, like their weekend, their interest in girls, sex, and ‘that sort of stuff’. Mr Macpherson considered this to be quite inappropriate for a ‘guy of [Hobbs’] age’. He said, ‘It just didn’t seem right this person [Hobbs] trying to, you know, add to a conversation which he wasn’t necessarily a part of’.
Senior counsel for Mr Kneale followed with a question predicated on Hobbs having had ‘inappropriate’ conversations with the U19 players. Macpherson was asked what his ‘instincts’ were in relation to ‘engaging’ Hobbs in this context. He said that his instincts were that it was distasteful and he felt quite angry towards Hobbs for including himself in the conversation.
Mr Macpherson was unable to give an example of the talk that he found distasteful for Hobbs to have participated in, other than to say that conversations around footy clubs in those days could be very sexualised. He described the talk as ‘locker room talk’ and said he was never talked to in that way by the coach or any of the trainers. He said that the players would not talk like that to the senior coach and that there was ‘sort of an understanding’ about what was appropriate ‘within that culture’.
The conversations in question involved the players engaging in sexualised talk and innuendo of a kind that they would not engage in with the trainers and coaches. It is not clear what Hobbs contributed to those conversations, as the evidence goes no further than that Hobbs tried to implant himself in them. In my view, it is tolerably clear that what Mr Macpherson found distasteful was the fact of an old ‘hanger on’ joining in these conversations, rather than anything Hobbs might actually have said. There is no suggestion that Hobbs attempted to isolate and groom any of the players, or that he invited any of them to engage with his particular sexual proclivities.
Mr Macpherson also recalled Hobbs joining a football trip with the U19 players to the Gold Coast as an end-of-season celebration. Hobbs had a camera, which was not unusual, and there were times when he was joking around with the camera pretending to take photos of the players in their rooms. When asked what he meant by ‘joking’, Mr Macpherson said ‘Giving off the impression that it was going to [be], you know, all light‑hearted, friendly stuff.’ ‘No other purpose than just a bit of light‑hearted comical stuff where the players were semi‑clothed, fully undressed and, at that time, nobody gave a thought to what would happen to those photos, or if indeed photos were taken’.
Mr Macpherson gave evidence that he spoke to Mr Smith about Hobbs. He explained that Mr Smith would often be in his office in the evenings and they (the younger players) would go up there for a bit of a chat because Mr Smith was a friendly face. When asked what he said to Mr Smith, Mr Macpherson first said it was very hard to be specific about it, but there was ‘no doubt’ discussion about Hobbs would have come up.
When told to confine himself to what he actually remembered about what he said to Mr Smith about Hobbs, Mr Macpherson said, ‘So I’d answer that there would have been brief — there were brief comments around the character of Graeme Hobbs … That he was a sleazy, you know, quintessential dirty old man’.
These words assumed particular importance in the trial and were said to constitute the principal ‘red flag’ upon which the Club should have acted.
Once again, this evidence did not include any specific recollection of what was said to Mr Smith about Hobbs. It is not clear whether Mr Macpherson gave Mr Smith any reason for describing Hobbs as sleazy and as a quintessential dirty old man.

Discussion

Senior counsel for Mr Kneale sought to emphasise the significance of Mr Macpherson’s evidence of his discussions with Mr Smith having regard to the following matters:
•General knowledge of the risk of harm of sexual abuse in the community in the early 1980s, in connection to which Derryn Hinch was called, amongst others.
•Aspects of the Club’s activities that created the risk of sexual abuse, including the appeal of football clubs to children and the sale of ‘squadron tickets’ to them.
•The specific risk posed by Hobbs. He was a presence in many ways at the Club, including in his role as a fundraiser, assisting the U19 players, and giving children tickets. There was evidence that he was perennially around the Club, including around young people.
In this context, senior counsel argued that if an organisation like the Club is likely to attract children, it is also likely to attract paedophiles. The more exposure to children that they have, particularly unsupervised exposure, the higher the risk. While not every middle-aged, male football fan who turns up to a club to volunteer is a risk, it is more likely that somebody with paedophilic tendencies would be attracted to that sort of activity. This represents a heightened level of risk and it must be put into the mix.

What we now know about Hobbs is that he was a dangerous paedophile who systematically abused children whom he and others groomed for that purpose. Much of the abuse of Mr Kneale, and no doubt others, took place in motels and private homes, not at the Club’s premises. It involved arrangements with other paedophiles, who ‘shared’ children and required them to do an array of degrading and unspeakable things. As Mr Kneale speculated in his evidence, it is possible that Hobbs received some form of recompense for making him available to be abused by other men. Hobbs, and other paedophiles in Hobbs’ orbit, subjected Adam Kneale to abuse of the most dreadful and depraved kind.
In my view, this behaviour is a quantum leap from the behaviour that Mr Macpherson reported to Mr Smith, namely, inappropriately engaging in sexualised banter with the U19 players on training nights in the team rooms.
Mr Macpherson did not complain about Hobbs to Mr Smith because he was alarmed that Hobbs might present a danger to children at the Club. It does not appear that he thought Hobbs was a danger to the U19 players. Macpherson was principally angry that Hobbs did not understand the ‘culture’ of the locker room — or his ‘place’ within it. That culture was stridently masculine, heterosexual and focussed on physical prowess. It involved young male athletes, many of whom were no doubt already sexually active, even if Mr Macpherson, the youngest at 16, was not. In such an environment, an unmarried, middle aged (‘old’), overweight and unkempt man like Hobbs, whose social life appeared to revolve around the Club despite — in the minds of the players at least — having no obvious role there, might be viewed as odd and his contributions to locker room talk as disgusting.

It transpired, of course, that Hobbs was very odd indeed, and very dangerous. But the evidence does not establish that that is how he was — or should have been — perceived at the time. There was no evidence that Mr Macpherson, or anyone else at the Club, noticed that Hobbs was paying undue attention to children or, indeed, to any one or more of the young men in the U19 team. Apart from the fact that he spent time at the Club and the Club was attractive to children, there was no reason to think that he might be a paedophile. The tenor of the evidence of others who were around at the time was that Hobbs was an affable bloke, who was, at worst, a bit pathetic — unattached, old, fat and (possibly) a bit smelly. He was socially inept and apparently insensitive to when his company might be unwelcome.
Outwardly, Hobbs appears to have been no different from many socially challenged individuals who seek social contact by volunteering for community organisations. Sports clubs provide vital social connections for such people, and often depend on their voluntary work for their survival.
I reject the proposition that the ‘heightened level of risk’ of attracting paedophiles to the Western Oval because of its attraction to children transformed Mr Macpherson’s complaint about Hobbs into notice of the risk that he was a paedophile. The very general evidence given by Mr Hinch about community awareness of paedophilia in the 1980s does not assist to establish that the Club should have been alert to the risk actually presented by Hobbs in this case.
I have therefore concluded that it was not open to the jury to find that Mr Macpherson’s discussions with Mr Smith imported knowledge of the risk that Hobbs would engage in the kind of criminal activity that caused Mr Kneale such harm.
Furthermore, I do not think anything flows from Hobbs’ presence and behaviour on the Gold Coast trip. There is no evidence any photos were taken. And, more importantly, there is no evidence that the ‘joking around’ behaviour was the subject of any report to Club management.
For these reasons, I have formed the view the evidence does not support a finding that the Club should have identified the risk that Hobbs presented to children attending the Western Oval and banned him from Club premises in 1981.

BEACH JA
J FORREST AJA:

Introduction

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.[1] 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.
[1]Counsel for Mr Kneale also abandoned a claim based upon Hobbs acting with the ostensible authority of Footscray.
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:
(a)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;
(b)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;
(c)the judge’s directions as to the way the jury was to calculate economic loss (both past and future) were erroneous; and
(d)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.
Sections 14(1) and (2) of the Supreme Court Act 1986 set out the power of this Court on a civil appeal from a jury verdict:
(1)The Court of Appeal, in hearing and determining an appeal in a proceeding in which there has been a trial by jury, may, despite any enactment or rule of law or practice to the contrary, give any judgment on the appeal that it might have given if the proceeding had been tried without a jury and the findings or verdict of the jury had been the findings of the Judge.
(2)An order for a new trial of a proceeding, whether the proceeding has been tried with a jury or without a jury, may be limited to the question of damages only or to the question of liability only even if at the trial there was an apportionment under the Wrongs Act 1958 or any other enactment.[2]
[2]See also r 67.37(3) and (5) of the Supreme Court (General Civil Procedure) Rules 2015; Murphy v Mark [1977] VR 316, 321; Vandeloo v Waltons Ltd [1976] VR 77.
In dealing with Footscray’s grounds, we shall first analyse those relating to the jury’s verdict as to its liability to Mr Kneale. Then, we will determine whether Footscray’s attack on a number of the decisions of the judge in the course of the trial are made out. Finally, we will consider the grounds relevant to the jury’s assessment of damages.

Mr Kneale’s pleaded case and Footscray’s response

In his further amended statement of claim (‘FASOC’) filed 27 July 2023, Mr Kneale alleged that:
(a)Hobbs was under the ‘supervision, direction and control’ of Footscray;
(b)Hobbs was ‘ostensibly the agent’ of Footscray and that it was directly liable for Hobbs’ acts and omissions, ‘carried out in acting as the mind and will of [Footscray] for the purpose of the care and supervision of [Mr Kneale]’ while at the Western Oval;
(c)Footscray owed ‘a non‑delegable duty of care’ to ensure that reasonable care was taken by Hobbs while Mr Kneale (as a child invited onto the premises) was under Hobbs’ care and supervision, such care and supervision entrusted to Hobbs by Footscray;
(d)Footscray knew or ought to have known that Mr Kneale was at risk of being sexually abused by Hobbs;
(e)Footscray owed a duty of care to Mr Kneale (‘as a child attending the premises as a spectator’) ‘to take reasonable care for his safety to ensure that [he] was not injured or exposed to unnecessary risk of injury due to being on the premises, including injury as a result of sexual abuse’;
(f)Footscray breached its duty of care and was negligent; and
(g)Footscray was vicariously liable for Hobbs’ conduct as an employee or by reason of Hobbs being in a ‘relationship akin to employment’ with Footscray.
Mr Kneale sought general damages (i.e., for pain and suffering and loss of enjoyment of life), economic loss damages (past and future), medical expenses (past and future), and aggravated and exemplary damages.
Footscray, in its amended defence:
(a)admitted that Hobbs assisted Footscray as a volunteer with some fundraising and incidental game day activities for the Under 19s (‘U19s’) team, but otherwise denied that Hobbs was under the supervision, direction and control of Footscray;
(b)admitted that Mr Kneale was abused by Hobbs (and others), but denied that it was liable for the abuse;
(c)denied that it was directly liable for Hobbs’ actions;
(d)denied that it knew or ought to have known that Mr Kneale was at risk of being abused by Hobbs;
(e)admitted that ‘it owed a duty to take reasonable care to avoid foreseeable risks of injury of which it knew or ought to have been aware to persons attending the [club’s] premises’, but otherwise denied the allegation that the duty of care included injury as a result of sexual abuse; and
(f)denied it breached its duty of care, that it was vicariously liable for Hobbs’ conduct and denied Mr Kneale’s claim for aggravated and exemplary damages.

Some background facts

Footscray, now known as the Western Bulldogs, is a famous Australian Football League (‘AFL’) club that has operated out of the Western Oval (now the Whitten Oval) on Barkly Street, Footscray for over a century. Up until 1997, Victorian Football League and AFL games were played at the oval.
During the 1980s, Footscray’s administration offices were situated within the EJ Whitten grandstand at the Western Oval. The seniors, reserves and U19s teams trained at the oval.
Mr Kneale was born on 5 June 1972 and, from the age of ten (when his family moved to West Footscray), his secondary education was at Tottenham Technical School. The family home was close to the Western Oval and Mr Kneale regularly attended Footscray’s weekday training sessions on Mondays and Wednesdays after school. On the training days, he would watch or kick the footy with his mates around the grandstand and then move onto the ground after the players finished training. He also attended Footscray’s home matches and some away matches.
Hobbs was born on 30 August 1943. His role as a volunteer for Footscray between 1983 and 1992 included fundraising (such as selling season tickets during the first couple of games of the season and raffle tickets on game days) and at times working with Footscray’s U19s team as its property steward. He was at the Western Oval regularly but was never employed by Footscray.
Mr Kneale was the victim of grooming, vile sexual abuse and trafficking perpetrated by Hobbs (and others) between 1984 and 1989, when he was aged between 11 and 16. The pattern and nature of the abuse is set out below.
Mr Kneale completed Year 12 in 1989 and obtained his Victorian Certificate of Education (‘VCE’). In January 1993, Mr Kneale reported Hobbs’ abuse to the police, with the result that Hobbs was arrested in February of that year and charged. Hobbs ultimately pleaded guilty to the charges set out in [31] above, and in May 1994, he was sentenced to a period of imprisonment.
Hobbs died in 2009.

The trial — in precis

Mr Kneale’s writ was issued in May 2022 and he sought trial by a jury of six.
The trial commenced on 17 October 2023 before a jury of six and Mr Kneale’s case ran from 18 to 25 October 2023. In addition to Mr Kneale, the following witnesses were called on his behalf:
(a)Evelyn Jamieson, Mr Kneale’s mother;
(b)Damien Christiansen, a police officer who interviewed Hobbs;
(c)Steven Macpherson, a former Footscray player;
(d)Gary Munn, a member and, at times, president of the Footscray Cheer Squad;
(e)Derryn Hinch, a broadcaster;
(f)Carl McCullough, a friend of Mr Kneale;
(g)Mark Thompson, a chartered accountant;
(h)Natasha Kneale, Mr Kneale’s wife;
(i)Anthony Wells, a journalist who worked for The Western Times newspaper between 1988 and 1996;
(j)Katrina Hall, a mental health social worker who treated Mr Kneale;
(k)Dr Su Xin Lee, Mr Kneale’s general practitioner;
(l)Scott Taranto, the director of a company that employed Mr Kneale for a couple of years from 2018;
(m)Dr Joseph Slesenger, a consultant occupational physician; and
(n)Dr Remy Glowinski, a consultant psychiatrist.
Sixty‑one exhibits, including a number of medical reports, were tendered as part of Mr Kneale’s case.
During the course of Mr Kneale’s case, the issues of the duty of care owed by Footscray to Mr Kneale and its potential liability (either directly or vicariously) were raised by either the judge or the parties on multiple occasions. Initially, on 18 October 2023, and then on 19, 23, 24, 25 and 26 October 2023, there were discussions as to the manner in which Mr Kneale’s case was to be characterised and what was to be made of the admissions contained in paragraphs 11(a) and (b) of Footscray’s defence.
On 24 October 2023, the judge heard arguments concerning the admissibility of Hobbs’ record of interview with Mr Christiansen. On the following day, her Honour ruled that certain parts of the record of interview should be admitted into evidence under s 63 of the Evidence Act 2008, but that other parts were excluded pursuant to s 135(a) of the Act.
Also on 24 October 2023, counsel for Footscray foreshadowed (subject to receiving instructions) applications that his client proposed to make in relation to the questions of duty of care, vicarious liability and ostensible authority.
On 25 October 2023, at the conclusion of Mr Kneale’s case and after a draft of the judge’s charge had been circulated to the parties, her Honour heard arguments, amongst other things, on the manner in which the jury should be charged in relation to Footscray’s duty of care and particularly, what was to be made of the admission contained in paragraph 11 of its defence.
After delivering her decision orally that the jury should be charged on the basis of the admission contained in Footscray’s defence, and at the request of Footscray, her Honour prepared comprehensive written reasons for that decision, which were provided on 23 November 2023 as part of a ruling on a number of issues that had arisen in the trial.[3]
[3]Kneale v Footscray Football Club Ltd [2023] VSC 679, [3] (Richards J) (‘Ruling’).
On the morning on 26 October 2023, before the trial resumed, Footscray’s solicitors wrote to the Judge’s Associate:
In light of the matters discussed with her Honour at the conclusion of yesterday’s hearing the defendant will delay making any application pursuant to s 62 of the Civil Procedure Act 2010 (with regard to paragraphs 5(b), 11, 13 and 14 of the Further Amended Statement of Claim) until the completion of evidence.
(‘26 October letter’)
Footscray’s case then commenced with its evidence, which was given from 26 to 31 October 2023. It called the following witnesses:
(a)Ameet Bains, the current CEO of Footscray;
(b)Dennis Galimberti, CEO of Footscray from December 1986 to September 1996;
(c)Patricia Webb, a Footscray supporter, member of the cheer squad, and volunteer from 1985;
(d)Steven Kolyniuk, a former Footscray player;
(e)Stephen Smith, Footscray’s finance manager between 1978 and 1994;
(f)Bradley Spear, a former Footscray player;
(g)Graham Sherry, a former member of the Footscray Board;
(h)Darren Arthur, Footscray’s historian;
(i)Hayden Stephens, a former player and director of Footscray;
(j)Peter Gordon, president of Footscray from November 1989 to September 1997;
(k)Melinda Bowman, a chartered accountant; and
(l)Dr Timothy Entwistle, a consultant psychiatrist.
Sixteen exhibits, including medical reports, were tendered on its behalf.
On 1 November 2023, Footscray having closed its case, the judge heard Footscray’s application pursuant to s 62 of the Civil Procedure Act 2010 (‘CPA’) for summary dismissal of Mr Kneale’s claim against it on the basis of its vicarious liability for Hobbs’ actions. In addition, Footscray sought that the claims made by Mr Kneale for aggravated and exemplary damages be dismissed.[4] The judge acceded to these applications and each of those issues was removed from the jury’s determination.[5]
[4]Counsel for Mr Kneale abandoned claims based on ostensible authority and non‑delegable duty.
[5]Ruling, [11]–[52].
Accordingly, the sole issue to be resolved by the jury was whether Footscray had breached its duty of care owed to Mr Kneale (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 expenses.
On 2 November 2023, Footscray’s senior counsel made his closing address to the jury, followed by senior counsel for Mr Kneale’s address, which continued into 3 November 2023.
After counsel for Mr Kneale’s address to the jury, counsel for Footscray made two unsuccessful applications to discharge the jury based on the content of that address.

On 3 November 2023, the judge commenced her charge — legal directions to the jury and a summary of the evidence given in the trial — of the jury, which resumed on 8 November 2023 (the Melbourne Cup weekend occurring in between).
Upon the resumption of the trial, an application by Mr Kneale’s counsel to reopen his client’s case was refused by the judge, who continued her charge.
In addition to the exhibits, the jury was provided with a redacted transcript of the evidence, a one page summary document relevant to the issue of economic loss, and a jury question trail document (Attachment A) prepared by the judge.
Shortly after midday on 8 November 2023, the jury retired to consider its verdict and on 9 November 2023, the jury returned a verdict in favour of Mr Kneale.[6]
[6]See [36] above.
In accordance with the jury verdict, the judge ordered judgment for Mr Kneale in the sum of $5,943,151.

Proposed grounds of appeal

In its written case in this Court, Footscray helpfully summarised its grounds as follows:
(a)The trial judge’s rulings and directions in relation to the scope of the duty of care owed by the Club to child spectators were erroneous (grounds 1 and 2);
(b)The jury’s verdict (both as to liability and the award of damages) was one which no jury acting reasonably could have reached on the evidence most favourable to the plaintiff / respondent or was incompatible with the weight of the evidence (ground 3);
(c)The trial was unfair by reason of the deferral of the Club’s s 62 CPA application, which required the Club to adduce responsive evidence on matters later removed from the jury (particularly that of vicarious liability, aggravated damages and exemplary damages) (ground 4(a), (b) and (c));
(d)The trial was unfair by reason of a cumulative series of events, including the trial judge’s erroneous decision to admit into evidence parts of Hobbs Police Record of Interview, and comments made during the closing address by counsel for Mr Kneale, which were incapable of being cured and were not cured by the trial judge’s directions (proposed grounds 4(d) to (i));
(e)The manifestly excessive award, which was affected by irrelevant and punitive considerations (ground 5);
(f)The trial judge erred in ruling that indexation of past loss of earnings ‘to allow for inflation’ was allowable (ground 6);
(g)The trial judge erred in directing the jury that the calculations for future economic loss were required to be discounted by 3% rather than 5% following the reasoning of the Court in PCB v Geelong [2021] VSC 633 (ground 7).

The evidence as to Footscray’s liability

Mr Kneale

Mr Kneale supported Footscray and the family home was about a fifteen‑minute walk from the Western Oval. He would go to the ground twice a week to watch the players train and to kick a football with friends after school. He went to most games at the ground with his father.
When he was about 11 or 12 years old, Mr Kneale came to know Hobbs through Jason, a student at his school:
Jason spoke to me and wanted to tell me how it is that I’ll be getting some money, easy money, and that’s when he describe Graeme Hobbs, told me where I could meet him, when I could meet him.
And do you remember what he said when he described Graeme Hobbs to you?

‑‑‑He said he was a large man that would wear a big blue coat with a fur collar on it, and he’d be standing at the top of the stairwell adjacent to the John Gent Stand.
At the Western Oval?‑‑‑At the Western Oval.
So what happened then?‑‑‑I went there. Ah, we would go to most games. Ah, my dad used to stand in the standing area with, ah, colleagues of his, and then I was able to just wander around the ground, and I noticed him there, and I approached him.
And how old were you at that stage?‑‑‑11 or 12.
And as you approached him, what sort of impression did he make?‑‑‑Ah, friendly. He was a friendly guy who – who asked how I was, and asked if I needed some money to buy some pies and a drink, and he said that any time I could go up and meet up.
You can go up where?‑‑‑Up the stairs to meet him during any of the home games, and I just saw that as an opportunity. He seemed relatively – and overly nice.
And when you say ‘up the stairs’, do you mean the John Gent Stand?‑‑‑Up the stairs of the John Gent Stand.
…
Yes, and did you continue to have contact with Graeme Hobbs after you met him for that first time at the age of 11 or 12?‑‑‑Yes. Regularly on the home games.
Did he arrange to get you football seats at the football? ‑‑‑Yes, he could get us seats, or myself seats, at the stand, ah.
Was it just yourself, or did he get seats for others?‑‑‑Now and again, if I had a friend with me. A lot of the time I’d – at the beginning, I would go to the games just with my dad, but as time went on and I established this friendship with Hobbs, and he made it clear that I was able to obtain tickets for the stands to sit with my friend.
And did you ever have to pay for those tickets?‑‑‑Never paid for those tickets.
What were your observations of what Hobbs was like at football games when you were there with him? What did he do? Did he stay in his seat?‑‑‑He never sat in a seat. He always stood at the top of the stairwell next to the John Gent Stand, and there was just people ‑ other kids that were approaching him. I remember that I would get to the ‑ a landing at the stairs where you could either go into the John Gent Stand to sit, or you could go up to the offices, and I’d wait there for whoever he was talking to to leave, and most of that time were kids.
Yes. And as well as giving you tickets, did he give you anything else?‑‑‑He gave me seasons tickets that I was able to give to my dad and a couple of friends each year. That ‑ that wasn’t a problem.
Would he give you money?‑‑‑Oh, always would give me money. There was always $10 for the game. Any time I met him later on the training nights, it’d be $20, maybe 30.
Mr Kneale described Hobbs’ presence on training days as follows:
Who was training?‑‑‑Ah, the Footscray Football Club was training. They’d have ‑ the under 19s would train first, and I think the seniors trained afterwards, and at the main entrance of the ground where they had a big bulldog on the front of the, ah, verandah area, Graeme Hobbs would be standing there most afternoons about 4 o’clock, 4.30.
And so of all the times that you went back to Western Oval, how often was Hobbs there?‑‑‑Every time.
Mr Kneale said that when he first met Hobbs, he ‘thought he was a worker there’ and that ‘everybody knew [Hobbs] by his nickname … Chops. Anyone walking past him would greet him … he was a well‑known entity of that club, as far as [he] knew at the time’. Mr Kneale explained that ‘there was not a person [who] would walk past [who] didn’t know him [Hobbs/Chops], he was that well known’.
Hobbs had access to the office area/conference room, bathrooms and a catering room in the administration area. Hobbs sold game and raffle tickets outside the ticket box at the ground and the money received went into the safe in the administration offices, to which Hobbs had access without supervision.
Mr Kneale said that the first time he was sexually abused was on a game day in 1984.
Are you able to describe for the members of the jury the time that you were first sexually abused by Hobbs?‑‑‑Yes. I met him up at the stairwell, and he asked if I wanted to go in and have a look at the ‑ in the offices.
And when would this have been? Do you remember how old you were?‑‑‑Oh, well, I was probably around 12.
Yes?‑‑‑Ah, it was ‑ been a little while since I’d known him, only – we’re only talking a month or so from first meeting.
Yes?‑‑‑And he took me into the offices via the stairwell on the side of the John Gent Stand.
And was this on a day of ‑ was this on a footy game day?‑‑‑Yes, yes. It was during the game. Ah, it would have been after halftime because any time I went into those offices, it was always after halftime.
And do you remember anything more about the actual day itself? What sort of a day was it? What was the weather like?‑‑‑Oh, it was a sunny day.
Yes?‑‑‑I don’t remember the particular teams that were playing and that. I’d just be guessing, and it wouldn’t be right. Ah, we walked ‑ he walked me into the office area, and it was a ‑ like a conference room with a big round table, and on the side of the walls, there were big tall cupboards, and I remember when he opened one of the cupboards, I saw a few footballs up the top, and straightaway, I thought, ‘Geez, I’d like to get one of those’, and I assumed that they were training balls that the club had used during their week, and he used that cupboard, when he opened it ‑ that blocked the view from the corridor leading out of that conference room.
Right?‑‑‑And while I was in there, he would stand and ‑ stand behind me and then start touching me on my backside and on my groin.
Okay. Was anyone else with you at the footy on that day?‑‑‑My dad was probably in the crowd. Most definitely because he went to the football every home game, and I followed.
Sorry. I took you away from your evidence then. You were standing at the cupboard, did you say?‑‑‑Yes, with ‑ inside the cupboard because it ‑ the door ‑ he opened up.
And what did ‑ you said Hobbs touched you. What did he touch you with? What part of his body did he touch you with?‑‑‑His hands.
And was that over your clothes or under your clothes?‑‑‑Over my clothes to begin with. On ‑ yeah, on my backside and on my groin. He would ask me how it felt, and to be honest with you, I just froze.
Yes?‑‑‑I worked out quite quickly that this is what the money was for. This is what his payment was.
Right?‑‑‑And I was trapped in that situation. I could not move out of it, and I just thought that must be the worst of it, but it wasn’t.
Right. And so what happened then?‑‑‑Later, we walked down that ‑ he shut the cupboard door. We walked down that corridor leading out of the conference room, and there was, ah, a bathroom, and we went in it. I remember that he pulled his pants down.
So was there anyone else in the bathroom?‑‑‑No one else was in there.
Right?‑‑‑And he pulled his pants down, and I was forced to perform oral sex on him at the time.
And at that time, did you have clothes on?‑‑‑Yes, I did.
And do you remember what was going through your mind at that stage?

‑‑‑Nothing. It was just an absolute freeze that ‑ you – you’re ‑ I felt trapped in the moment, and ‑ and it ‑ I didn’t have a choice.
And sorry we have to go into this, but you say he forced oral sex upon you. What ‑ can you describe exactly what you mean by that?‑‑‑I had to suck him on his penis until he ejaculated in my mouth.
And so his penis was erect?‑‑‑Yep.
And how long did that go for?‑‑‑Only a couple of minutes at the most.
And what happened after that?‑‑‑After that, he turned me around, pulled my pants down and put his KY Jelly lubricant on his penis and then inserted it in my anus and raped me until he ejaculated again for ‑ at the most, five or so minutes.
And do you have any memory of how you were feeling at the time that was being done to you?‑‑‑I think because I was unaware of what was going to happen, it, strangely enough, didn’t hurt at that time, and after it had finished ‑ and I remember leaving the ground ‑ ‑ ‑
Just before we go there in terms of jumping ahead, after he ejaculated inside of you, what happened then?‑‑‑I was just ‑ pulled my pants up, we walked out of there, and he led me back out the stairwell, and I went back into the crowd.
After going back into the crowd, did you talk to anyone about what had happened to you?‑‑‑No.
Why not?‑‑‑Because it seems obvious that this was a secret moment. This was something not to be said with anybody.
And what happened then?‑‑‑I just kept watching the game, most probably got some lunch, and the game was over, and I walked home. It was during that walk home that I remember walking past the date trees that were out the front and thinking to myself, ‘Oh, the money will be worth it because this won’t affect me when I get older’, and that was a fatalistic thought that just stayed with me forever.
And was that the last time that Hobbs was ‑ sorry. I withdraw that. Was that the last time that Hobbs sexually abused you?‑‑‑No, that was not.
Mr Kneale said that Hobbs’ abuse persisted for about five years and occurred in or around the administration offices on the weekends, when there was a home game[7] (not training nights), and would occur in an office or change room, usually at half time.
[7]Mr Kneale deposed that the pattern would occur from age 12 to 16 or 17 and confirmed that people were going by all the time, including people in suits and adults.
Hobbs handled money and accessed rooms where money or safes were held. Mr Kneale said, ‘I saw him with money within the offices. I saw him put money bags in the safe’. On one occasion, while being raped, Mr Kneale gave evidence that he saw a safe in the conference room and that there was also ‘a safe in one of the offices on the left. It looked like an important managerial office’.
At the times Hobbs took Mr Kneale through the offices, ‘now and again there was a female worker once in her office, and a lot of those offices had glass walls along the hallway’. On one occasion, while walking through the offices after the abuse occurred, Hobbs said hello to the person working behind the desk and on another occasion, he introduced Mr Kneale to a secretary. In cross‑examination, Mr Kneale said that this one occasion was during business hours on one of the Mondays or Wednesdays.
Mr Kneale was orally and anally raped by Hobbs ‘many times’ in the offices at the Western Oval and the
oral sex was a regular thing, because it was easy for him just to unzip his fly, and we’d hide behind somewhere and I performed the oral sex on him. He’d ejaculate, I’d stand up, he would zip himself. So he was prepared if anyone did turn up at the time and interrupt us.
Mr Kneale said that this pattern of abuse continued from when he was aged 12 to 16 or 17 and occurred on about forty occasions. It was ‘a regular occurrence’, like a ‘routine’, and that:
[I]t was not uncommon for me to know the routine, that I would just turn up at the ground and meet him just as the game started, because he would just eventually walk out of the door that led to the office that was on the stairwell of the John Gent stand … I’d go up there, meet him, he’d give me some money for pies and drinks and donuts and he would say to come back after the half‑time break. I’d meet him at the same place, and we’d walk in the office, and he’d take me to a little secluded area again.
Up to the end of the 1988 season (when he was in Year 11), Mr Kneale continued to meet Hobbs on game days, and it was ‘always the same’.
Although, at times, in his evidence, he referred to the grandstand as the John Gent stand, it is clear that he was referring to the EJ Whitten grandstand, where the Footscray offices were located. Mr Kneale saw Hobbs with other kids, but never saw Hobbs take other kids into the administration area.
Hobbs also met Mr Kneale outside the entrance to the Western Oval during the week, on a training night (Mondays or Wednesdays), to establish a meeting on the following Saturday. As arranged, on the Saturday, he met Mr Kneale after the match, when the car park was generally empty. Hobbs then arranged a taxi to take Mr Kneale and himself from the football ground to a hotel — usually the Palms Hotel on Geelong Road — or to the homes of other paedophiles where Mr Kneale was abused.
Mr Kneale described many instances of sexual abuse at hotels and private houses in Moonee Ponds, Ascot Vale and Flemington, including in his own home when his mother was interstate, facilitated by Hobbs and perpetrated by Hobbs and others.
Mr Kneale also described a bus trip to Sydney for a Footscray interstate match. He went with Hobbs, cheer squad members and young people. Mr Kneale was abused by Hobbs on the bus trip there and back. On one occasion, Hobbs put his jacket over Mr Kneale’s head to make it look like he was sleeping on his lap, when Hobbs was in fact forcing him to perform oral sex. Mr Kneale said that he had no idea who organised that trip.
In 1989, things changed. Mr Kneale had a girlfriend. He was not abused by Hobbs and when he finished Year 12, he moved out of home.
Evelyn Jamieson
Evelyn Jamieson is Mr Kneale’s mother. She said that she did not have any concerns about the fact that Mr Kneale went down to the Western Oval to watch the U19s team train and never suspected that anything untoward was happening to him at Footscray.
She recalled that Mr Kneale went on a trip to Sydney in 1986 to watch the Footscray U19s team play and that a man arrived at her house in a taxi to pick up Mr Kneale for this trip.
Stephen Macpherson
Stephen Macpherson played for Footscray in 1981 (in the U19s) and then, for the reserves and senior side between 1982 and 1995. Mr Macpherson knew Hobbs, who went by the nickname ‘Chops’, and first met him playing in the U19s team. Hobbs ‘was a sort of portly sort of fellow with a not — not a very kept, you know, individual … someone … that was untidy … would wear a large coat’.
Mr Macpherson was uncertain as to Hobbs’ precise role, but said that he was definitely not a trainer, and appeared to stay in the change room during training sessions. When asked how frequently he saw Hobbs, he recalled that Hobbs was at the club regularly on the U19s training nights, which occurred two nights a week, for two to three hours.
Mr Macpherson’s evidence as to Hobbs’ behaviour and his discussions with Mr Stephen Smith, Footscray’s finance manager, are critical to the issue of the reasonable foreseeability of Hobbs posing a danger to young boys at the Western Oval, which is considered under ground 3. We shall return to the detail of his evidence when considering that ground.
Gary Munn
Gary Munn was a member of Footscray’s cheer squad from the 1970s to the 1990s. He served in various official capacities, including as president and co‑president.
As to Hobbs’ role at the Club, Mr Munn ‘believe[d] he was a volunteer of some sort’ and that he may have done other activities like fundraising.
Mr Munn regularly saw Hobbs around the club on match days and during the week on Thursday nights, in and around the club rooms. He described Hobbs as a ‘chubby bloke’ and a ‘bit of a sleazebag’, and that the basis for that was, ‘Oh, just opinions, people made comments about him. They didn’t feel safe around him’.
He said that the money from ticket sales, membership and other sales would be taken to administration offices.
Mr Munn said he saw Hobbs there on match days and that Hobbs was around during the week. On match days, he saw Hobbs in the club rooms, or the parts where you would come to go into the door to go into the club rooms in the EJ Whitten grandstand.
He recalled an occasion in the late 1980s when Hobbs travelled by bus to Sydney with the cheer squad.
Steven Kolyniuk
Steven Kolyniuk was a Footscray player from 1985 to 2000. He commenced training and playing with the U19s squad in November 1985, when he was 15 years of age, and played his last game with the U19s in 1987.
Mr Kolyniuk only knew Hobbs by the name ‘Chops’. He saw Hobbs in the background in the change rooms: ‘he was just always there’. He did not see Hobbs anywhere else.
Mr Kolyniuk recalled Hobbs as being a ‘jack of all trades’, but did not otherwise know what Hobbs was doing nor what his designated role was. He described Hobbs as a ‘weird unit’, but did not recall hearing any specific stories of sexually inappropriate behaviour by Hobbs.
Carl McCullough
Carl McCullough was born in January 1973 and, in his teenage years, he was a friend of Mr Kneale and attended the Western Oval with him in 1985 and 1986.
Mr McCullough first met Hobbs through Mr Kneale, when he was 14, at the Western Oval. He recalled that Hobbs was referred to as ‘Chops’ and described him as short, fat and someone who wore the same dirty clothes.
Mr McCullough was also abused by Hobbs. The first occasion was in the change rooms, on a weeknight roughly between 5:00 and 6:30 pm, in about 1985/1986, when no one else was around. He was abused in a similar way on another three or four occasions at the club. Hobbs put his hand in Mr McCullough’s pants and fondled his genital area, which lasted for 10 to 15 minutes on each occasion. After the abuse had concluded, Hobbs would give Mr McCullough post payments. Mr McCullough said that Footscray players would sometimes interrupt the abuse by entering the change rooms.

Mr McCullough said that on the first occasion he was abused, Mr Kneale was present at the Western Oval, but did not witness the abuse as he was at some other part of the ground when it occurred.
Mr McCullough made a police statement in 1992 regarding the abuse of Mr Kneale by Hobbs. Mr McCullough did not inform the police that he had been abused by Hobbs.
His impression of Hobbs was that he was in management hierarchy. This was based on the fact that Hobbs ‘had access to money … showered his victims with gifts … he’s affiliated big with the Club … [i]t wasn’t just the under‑19’s … he knew a few big players … seasons tickets … free games … stuff like that’.
Damien Christiansen
Mr Christiansen, in 1993, was a senior constable who investigated Mr Kneale’s allegations concerning Hobbs. In January of that year, he took a statement from Mr Kneale, in which Mr Kneale described the abuse by Hobbs.
On 9 February 1993, Mr Christiansen conducted a record of interview with Hobbs at the Altona North Police Station. In that interview, Hobbs admitted to carrying out multiple assaults of Mr Kneale. After a ruling by the judge, a redacted transcript of the interview was tendered by counsel for Mr Kneale. Its admission into evidence is the subject of ground 4(d).
A search was carried out of Hobbs’ house and two boxes of photographs of young boys in sexually explicit positions were discovered. Mr Christiansen said that Hobbs ‘openly shared’ his knowledge that he had abused a number of children, ranging from ages 10 to 17, and that he had met them through Footscray.
Mr Christiansen also took a statement from Stephen Smith, Footscray’s finance manager, but it did not include any reference to Hobbs.
Mr Christiansen gave the following opinion evidence which was not the subject of objection:
Hobbs was actively … engaged in a number of facets. Clearly on the basis of Adam’s information, he had access to a number of areas in the club including administrative areas and rooms on game day and other days … you assume that he’s either an employee or very closely linked to the football club.
That assumption was based on the fact that Hobbs ‘had a game day role … a role on training days … had a role at the club that seemed to be … quite consistent’.
Dennis Galimberti
Dennis Galimberti was Footscray’s CEO from late 1986 until September 1996. He first met Hobbs when he arrived at Footscray and said that he never had any concerns about Hobbs until 1992.
Soon after he arrived at Footscray, he was told that Hobbs was a volunteer for the U19s. He said that Hobbs was not a subcontractor and was not paid for selling membership tickets and was never given an honorarium.
During his time as CEO, he said that he was unaware of any problem associated with child abuse and volunteers. Mr Galimberti described the work of the volunteers who sold season membership tickets from trestle tables set up at the entrances to the Western Oval on game days, observing that the club probably would not have existed without volunteers. The tickets included ‘squadron’ tickets for child members.
At half time, office staff would go down and collect the unsold tickets and the money. The staff would reconcile the unsold tickets, count the money, and put it in a safe. On occasions, the volunteers also sold raffle tickets in this way. He said that Hobbs was one of the volunteers who assisted in the sale of membership tickets, including squadron tickets.
Mr Galimberti was unsure about Hobbs’ role with the U19s team. Whatever Hobbs’ exact role was, Mr Galimberti agreed that he would have reported to the head trainer and through him, to the senior head trainer of the U19s. He described Hobbs as well dressed and had ‘no red flags’.
In 1992, he became aware of a complaint about Hobbs giving away membership tickets to children. He was later informed that after a board meeting, the CEO (Mr Galimberti was the deputy CEO at the time) had rung Hobbs and told him not to come back to the club. He did not see Hobbs again.
At the time, Mr Galimberti did not believe Hobbs was using the sale of tickets for the purpose of luring children for sexual purposes. He said that no steps needed to be taken to ensure Hobbs did not come back to Footscray after 1992 because he was never seen there again. Mr Galimberti also accepted that Hobbs was trusted by Footscray to handle cash and that in selling membership tickets, he was acting as a representative of Footscray.
Bradley Spear
Bradley Spear was a player in the Footscray U19s team from 1988 to 1989, and then a player in the senior team in 1990. He said that Hobbs was involved in the U19s team and was always in the background with a clipboard but could not recall what Hobbs’ actual role was.
Stephen Smith
Stephen Smith was Footscray’s finance and administration manager from 1978 to 1994. He remembered Hobbs in the 1980s and described him as one of the fundraising people who carried out tasks for the club at home games and special functions.
Mr Smith corroborated Mr Galimberti’s evidence that Hobbs could not subcontract or delegate his fundraising role to another person. Mr Smith said that he oversaw the work of volunteers on game days as far as money was concerned, but not more generally.
As to the role of volunteers, Mr Smith said that the Club relied on volunteers to do ‘the arms and legs work’. He said that the fundraisers were all volunteers who stayed for multiple years at Footscray. They were not part of Footscray’s staff and did not have access to the safe in his office. The money collected from tickets was brought in from volunteers at quarter time on game days at the latest. The volunteers were trusted to handle bags of money and to come into Footscray’s offices.
As mentioned earlier, the evidence as to Mr Smith’s discussions with Mr Macpherson is critical to the question of reasonable foreseeability of Hobbs posing a danger to young boys at the Western Oval, considered under ground 3. We shall also return to his evidence in greater detail later.
Graham Sherry
Graham Sherry, who served on Footscray’s board between 1977 and 1983, said that volunteers were ‘absolutely critical’, and that the club revolved around voluntary labour. However, the club did not have a list of volunteers and had no written policies about volunteers or anything else.
Darren Arthur
Darren Arthur has been the Footscray historian since 1992. He said that there were practically zero records kept by Footscray prior to 1992. He started collating various club photos, annual reports and magazines from that time, some of which were tendered as exhibits.
Peter Gordon
Peter Gordon was heavily involved in the Fight Back campaign to save Footscray in 1988–9 and was the president of the club from November 1989 to September 1996. He had never heard of nor met Hobbs, and at no point in time did he link the prospect of paedophilia with Footscray’s operations.
Hayden Stephens
Hayden Stephens played for the U19s in the late 1980s and was then a co‑director of the Fight Back campaign. He was the director of the club from 1994 to 1996.
Whilst a director, he never had any concerns about potential child sex abuse but said that there was less awareness of risk that children might be harmed or involved in inappropriate conduct at club events.
Ameet Bains
Ameet Bains is the current CEO of Footscray. He had never heard of Hobbs prior to 26 April 2022, when he received a call from an ABC journalist. He was unable to locate any records from the 1980s or 1990s relating to Hobbs. To his knowledge, there were no policies at any football club in relation to working with children. Nor was there any policy or procedure in relation to volunteers.
Mr Bains said that based on information, knowledge and belief, Hobbs was not, at any time, employed or appointed to any official position at the club, but that he volunteered his time, selling raffle tickets and assisting the U19s team with incidental activities.
Anthony Welles
Anthony Welles was a journalist at The Western Times newspaper from 1988 to 1996. The paper had a close association with the club and regularly featured stories on it. He described the front page story in the newspaper covering Hobbs’ conviction in 1992, a copy of which went into evidence.
Derryn Hinch
Derryn Hinch is a journalist who in the 1980s, reported regularly on the case of Father Michael Glennon, who had been convicted of child sex offences but was running a camp for kids, and a football team in Melbourne.
He said there would have been ‘heaps’ of media articles in the 1980s relating to child sexual abuse and several of those were tendered in evidence. At one time, he was a member of the board of the Melbourne Football Club and agreed that he had never asked board members to watch out for paedophiles.
Trish Webb
Trish Webb was a volunteer at Footscray in the 1980s (and remains so). She has been a Footscray member since she was nine years old and used to be in the cheer squad. She would sell memberships on game days at the beginning of the season, and the table was set up, ready for people when they came through the gates. The money collected was put in a calico bag and when the selling of tickets finished after quarter time, the volunteers would take the money and the unsold tickets to the office and hand them in, before watching the rest of the game. The volunteers also sold raffle tickets prior to games.
Significant exhibits — liability
Mr Kneale’s typed and signed statement to Victoria Police is dated 29 January 1993 and runs for eight pages. It was taken by Mr Christiansen and details horrific abuse by Hobbs and others — instigated by Hobbs.
In the statement, Mr Kneale describes how he used to ‘hang around the Western Oval a fair bit’ with other kids from his under 14 football team, West Footscray. In 1984, he met Hobbs at the Western Oval and described him as ‘a bloke who worked at the Footscray Football Club’, although he did not know what his job was, but that ‘he used to handle a lot of money’. Hobbs would arrange for Mr Kneale, his friends and family entry into the Footscray games and could, at times, obtain seats in the grandstand.
Halfway through the 1984 season, Mr Kneale met Hobbs upstairs in the offices on the first floor, which he had been to before with Hobbs. He described Hobbs having anal sex with him in the toilet adjacent to a function room in the stand. Subsequently, during that year, Hobbs would often touch him on the buttocks or the penis, but did not have sex with him again at any home game. He described a number of encounters with Hobbs at places away from the Western Oval (including his own home when his mother was away) and described many sexual episodes with Hobbs and others (facilitated by Hobbs) over the next four years at houses and hotels in the northern suburbs. He said that over the years, Hobbs had given him a lot of money.
In relation to Hobbs’ behaviour at the Western Oval, he said that during 1985, he did not have sex with Hobbs at the football that season, although subsequently in the statement, when describing events in 1987, he said, ‘[b]ut the same thing still happened at the football when Footscray played at home’.
Mr Kneale saw Hobbs on several occasions in 1991 but had not spoken to him since. He said that the reason he spoke to the police was that he was worried about what Hobbs was doing to other people and what he had said about children and parties.
Subsequent to the taking of Mr Kneale’s statement in February 1993, Hobbs was interviewed by Mr Christiansen and another police officer, and a record of interview was completed. A redacted version was tendered at the trial over the objection of Footscray.
The admission, by the judge, of the redacted record of interview is the subject of Footscray’s complaint under ground 4(d).
Between 1984 and 1989, in Footscray’s annual report, Hobbs was listed as a fundraiser. Hobbs was one of only three fundraisers whose name appeared in each annual report between 1981 and 1989. In the reports for 1981, 1982 and 1983, Hobbs was listed as a member of the fundraising committee. In the 1988 annual report, Footscray gave special thanks to a number of coaches, trainers and other assistants, including Hobbs, who was described as the ‘Jack Of All Trades’ for the U19s team. The 1990 annual report listed him as one of the U19s training staff.
In an U19s report in the April 1986 edition of ‘The Bulldog’, a Footscray publication for supporters, the ‘hardworking support staff’ of the U19s team were thanked for their service, including ‘Chops’, who was described as an ‘ever reliable’ person in performing his (unspecified) duties. Hobbs was also included in a group photograph of U19s personnel in the June 1987 edition of ‘The Bulldog’ and was the contact person for volunteer helpers for fundraising with an address ‘c/o Footscray Football Club’.
The June 1990 issue of ‘The Bulldog’ contained a special mention of Hobbs and the army of workers who had co‑ordinated and monitored the sale of membership tickets.
In its answers to interrogatories, Footscray admitted that Hobbs assisted with incidental activities, such as setting out food and drinks for players after matches.

The evidence as to Mr Kneale’s injury and its effects

Mr Kneale

Mr Kneale said that in 1989 (the year he completed his VCE), he felt ashamed, dirty and guilty, and that he had a dirty secret that he could not mention to anyone. After moving out of home, he worked as a labourer and, for a short time, resumed a relationship with Hobbs to earn extra money. He took drugs and consumed alcohol.
After leaving school his psychological state was fragile and ‘messed up’. He thought about going to university but did not pursue it. He had a relationship with a girlfriend, and in October 1992, his daughter, Tilly, was born.
In 1993, he reported Hobbs to the police. He described his mental health at the time in the following way:
I hit my rock bottom. I was overwhelmingly distressed. I could not stop from crying. I was an absolute mess. I was at my work before ringing the police, and that only got worse going to the police, because I committed myself to reporting what had happened to me, and I just remember I just used to shake. I just would not — feel nauseous, a million miles, a million thoughts at once going through my head and I couldn’t catch any of them. When you want to express something, like now for instance, it — the mind just shuts down, and my trauma response is just to shut down, and I had to fight to remember as much as I could to get that statement for it to end in the arrest in Graeme Hobbs.
Mr Kneale ceased work and remained, in his own words, ‘psychologically in a mess’. Around this time, he joined AMAN (A Male Assault Network), a support group, and was seeing a psychiatrist and psychologist, as well as taking medication.
In 1994, Hobbs was convicted, and Mr Kneale attended the sentencing hearing.
Mr Kneale did not obtain employment for another six years.
In 1996, Mr Kneale met Natasha, his wife. He did not continue the relationship at that time because he thought ‘it was just too heavy a burden for [him] to put on her’. In 2006, they resumed their relationship, which resulted in their marriage that year and the birth of their son, Charlie, in 2007.
Mr Kneale started smoking cannabis over 30 years ago to stop nightmares of Hobbs. During the 1990s, he started using a lot of different drugs, such as LSD, amphetamine and cannabis. According to Mr Kneale:
[A]ll of it was an opportunity to escape [his] mental anguish of memories of Hobbs, dreams of Hobbs, the continual footage in [his] head of the places [they]’d been, the things he’d done were just there so much more often after gaoling him. … it was all brought out, but it never disappeared, it never left [him and] it still hasn’t.
Mr Kneale did not return to the Western Oval after the 1990s because it was the biggest trigger of all.
In about 2000, he obtained a job involving sewing up wool bags and then worked on flyscreens and security doors. He has had a variety of jobs since that time, up to 2020.
Things went downhill after 2016, when he was working for Essential Doors and Windows. He subsequently worked for Taranto Doors and Windows, where his mental health issues worsened. He would throw his tools, get angry, and was beginning to fade dramatically. He received a warning from his employer in June 2020 and his employment came to an end in August 2020.
Mr Kneale has, since that time, received a disability support pension.
He has continued to suffer from a raft of issues: he sleeps no more than three hours a night, wakes up in tears, and at lunch time, will just go and sit in his car. He has put on a lot of weight, which he attributes to his mental health state. He has ceased using cannabis but takes medication for the nightmares and insomnia. Mr Kneale said that the memories of Hobbs’ conduct are there every day, and have often triggered him into a blubbering, crying mess: ‘[h]e’s there all the time and he’s there that often that [he’s] recently had to start a medication to stop [him] having the nightmares’. The nightmares relate to Hobbs’ abuse. Without his medication he is a nervous wreck and will go ‘into hibernation’. If this occurs he cannot go out into the public.
In the past, Mr Kneale has consulted a number of general practitioners for treatment of depression and mental health issues. From 1998 he was treated intermittently by Dr Weissman, a psychiatrist and has seen other mental health specialists over the years. He has taken various types of medication for his mental health. Currently Mr Kneale takes Effexor and Avanza. He still sees his general practitioner and makes regular visits to a skilled social worker, Ms Hall.
In 2017, he experienced problems related to his neck and ultimately had a cervical fusion in September 2019. He had little time off work and thought that the surgery went ‘really well’.
Mr Kneale said that he was fascinated with his mother’s work with computers. His mother had been a computer programmer and worked with a number of large companies. He was also keen on woodwork and building. His brother was a web designer. Mr Kneale described himself in the following way: ‘I’m not a dumb person. I know I’ve got some brains in my head, but they’re just a bit damaged. But yeah I love learning things, I still do’.
Evelyn Jamieson
Ms Jamieson, Mr Kneale’s mother, worked as a junior computer programmer and remained in that field throughout her career. She eventually ran an IT department and carried out consulting work.
Ms Jamieson said that the family moved to West Footscray in March 1984 and Mr Kneale attended Tottenham Technical School. He assimilated quite well at the new school and was good at building things.
In around 1987, Ms Jamieson noticed that Mr Kneale was ‘shutting down’ and would not communicate with her at all. In 1990, when Ms Jamieson met her current husband, Mr Kneale cut off all communication with her for a year.
The first time she learnt that Mr Kneale had been the subject of sexual abuse was when she was telephoned by a policeman a day or two after Mr Kneale made his police statement. She said that ‘Adam felt bad as he had hidden it from her’.
She denied that his anxiety was present as a child and said it occurred in his teens, although she did not think it was severe.
Ms Jamieson said that she was aware of Mr Kneale’s neck surgery and that he still has ‘some minor problems’ with his neck, but that he decided against going ahead with further surgery because his situation is now ‘tolerable’.
Natasha Kneale
Natasha Kneale is Mr Kneale’s wife. When they first met in 1996, Mr Kneale showed her his police statement. She described him as being ‘very sad and crying, and his hands were shaking’. Their relationship was short lived.
In 2006, they resumed their relationship. She described Mr Kneale at that time as still being a cannabis user and that ‘he was a bit of a mess, he was crying, then he was angry, irritated. It was all the emotions in one’. He was in a ‘bad mental place’ and had threatened to kill himself.

Ms Bowman explained that the appropriate methodology to quantify loss was ‘to compare the difference between the cash flows in the but‑for scenario and the actual scenario’, being the hypothetical cash flows Mr Kneale would have earned over the loss period but for the abuse compared with the actual cash flows he earned.
The past loss period was defined by Ms Bowman to be from 1 January 1990 (the year Mr Kneale completed Year 12) to 31 May 2023, and the future loss period was taken to be from 1 June 2023 to 5 June 2039, being the date of Mr Kneale’s assumed retirement at the age of 67.
As reflected in the table below, after applying a discount to all future cash flows at a rate of 3% (scenario A) and 5% (scenario B) per annum, Ms Bowman estimated Kneale’s loss to be $1,307,863 under scenario A and $1,193,199 under scenario B. The figures are stated after tax and before allowances for statutory interest and discounts for vicissitudes. Scenario B is now irrelevant given our conclusion as to ground 6.
Mr Thompson was instructed by Mr Kneale’s lawyers to prepare a supplementary report (dated 18 August 2023) which reviewed and commented on Ms Bowman’s report and updated the loss assessment figures in the light of matters identified in Ms Bowman’s report.
In that report, Mr Thompson was of the view that there were ‘no material differences’ in the fundamental methodology employed by him and Ms Bowman in assessing Mr Kneale’s economic loss, which is to say that both experts agreed on the approach that compared Mr Kneale’s ‘but-for’ abuse earnings and his actual earnings. Mr Thompson also made minor updates to his primary report, so that he and Ms Bowman were in agreement regarding the approach to actual earnings and superannuation.
However, he and Ms Bowman materially differed regarding the appropriate underlying measure of Mr Kneale’s hypothetical earning capacity — i.e. which scenario reflected Mr Kneale’s without abuse earning capacity. This, Mr Thompson said, correctly, was attributable to the differing instructions that each had received from the lawyers.
The summary document was prepared by agreement of the parties and provided to the jury (along with the accountant’s reports which contained other tables — which were tendered) provides a summary of the competing calculations of the two accountants.
The respective cases at trial
Counsel for Footscray emphasised two points to the jury. He contended that there was no evidence to support any of the scenarios, other than that put forward by Ms Bowman. He pointed to the failure of anyone from the school (teachers or fellow students) or Mr Kneale’s family to provide any indication as to where Mr Kneale landed in terms of employment, but for the abuse.
The other point made by counsel went to Mr Kneale’s significant ‘neck and back symptoms’ and that the disability support pension had been granted on the basis of both his physical and mental conditions. He referred to the surgery carried out on Mr Kneale’s neck and Dr Slesenger’s opinion that, in reality, Mr Kneale since the surgery has only been fit for light work — and certainly would not be working as a carpenter. He suggested that the discount, whatever figure the jury arrived at on account of the neck condition, would have to be between 30 to 50%.
Counsel for Mr Kneale emphasised the impression that Mr Kneale must have made on the jury as someone who was determined and courageous and that notwithstanding Hobbs’ abuse, he was someone who had done his best to make a go of his working life. The theme of counsel’s address was that the jury should regard the computer programming scenario (scenario 1) and an award of approximately $3.4 million as the appropriate figure with little if any discount for contingencies.
Counsel suggested that Mr Kneale could have had a similar earnings pathway to that of his brother, who had been involved in web design, and referred to his mother having a long time career in computer programming. He also referred to Mr Kneale’s ‘passion for carpentry and building’. Counsel mentioned the evidence of Ms Hall and Dr Glowinski as to the effect of the abuse upon his capacity to work and emphasised that two careers should be considered: primarily that of a computer programmer and ,if not, then that of a self-employed carpenter.
Counsel criticised Ms Bowman’s assessment on the basis that it made no allowance for Mr Kneale progressing past Year 12 — and gave the example that on Ms Bowman’s calculations Mr Kneale would hypothetically have earned $73,724 in 2019 — only slightly more than what he actually earned ($64,000).
Counsel also disputed the effect of his neck condition on Mr Kneale’s earning capacity and noted that Mr Kneale had returned to work after the surgery and that this was consistent with the December 2022 report of Mr Timms, the treating neurosurgeon, which stated that Mr Kneale’s symptoms had resolved. Counsel then countered Footscray’s argument as to the negative contingencies by pointing to the positive contingencies, in that Mr Kneale may have done far better in life than that allowed for by average earnings figures.
The judge’s directions to the jury
The judge directed the jury that there were three matters which they had to decide in order to assess damages for past loss of earnings and loss of future earning capacity: first, they had to determine Mr Kneale’s likely earning capacity had he not been abused by Hobbs; secondly, they had to determine the extent to which his unrelated neck condition had prevented him from working in the past and whether any discount should be applied for the likelihood that it would affect his future earning capacity; and thirdly, they had to determine what, if any, discount should be applied for the vicissitudes or contingencies of life.
As her Honour put it, Mr Thompson and Ms Bowman had done the hard work of calculating the plaintiff’s past loss of earnings, including superannuation, and his loss of future earning capacity, also including superannuation, using the five alternative scenarios. Mr Thompson and Ms Bowman agreed on the methodology and agreed that the calculations should be done on the basis that Mr Kneale would have worked until the age of 67.
The judge directed the jury that they could approach their assessment of damages for loss of earning capacity by deciding which of the five scenarios posited by the parties was the most likely for Mr Kneale had he not been abused by Hobbs. Her Honour told the jury that they could use the calculations in the summary document but they were not bound to do so: it being for the jury to assess past and future loss of earning capacity, ‘on the basis of fairness and common sense, without striving for mathematical or scientific precision’.
After identifying some of the important evidence and arguments of the parties, the judge said:
Remember at the end of the day that you are deciding on a figure that represents fair and reasonable compensation for Mr Kneale’s loss of ability to work and earn. However you go about it, you should step back at the end and look at your figure and ask, ‘Is this amount fair and reasonable’? And if it is not fair and reasonable, you should adjust the figure, whether up or down, as required.
Once you have arrived at a figure, you then need to consider whether it should be adjusted for Mr Kneale’s unrelated neck condition and also for general contingencies of life.
Principles as to determination of economic loss
The correct approach to the assessment of damages, both for past and future losses, is set out by the majority of the High Court (Deane, Gaudron and McHugh JJ) in Malec:
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded … The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[158]
[158](1990) 169 CLR 638, 642–3 (emphases added) (citations omitted).
Brennan and Dawson JJ said:
The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the plaintiff had not been working for some time before the trial and an evaluation of the plaintiff’s earning capacity which was destroyed in consequence of the defendant’s negligence. The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false — for the plaintiff has been injured — the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
Lord Diplock said in Mallett v. McMonagle (7):
The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.
In assessing the plaintiff’s earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.[159]
[159]Ibid 639–40 (emphasis added).
In Sellars v Adelaide Petroleum NL, the High Court reaffirmed what had been said in Malec:
In Malec v. J.C. Hutton Pty. Ltd., this Court drew a distinction between, on the one hand, proof of historical facts — what has happened — and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages.[160]
[160](1994) 179 CLR 332, 350 (Mason CJ, Dawson, Toohey and Gaudron JJ) (citations omitted).
In the New South Wales case of Seltsam Pty Ltd v Ghaleb,[161] Ipp JA (with whom Mason P agreed) held that in assessing loss of earning capacity, Malec required the application of the following steps:
(a)In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b)The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c)The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d)These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.[162]
[161][2005] NSWCA 208.
[162]Ibid [103].
Then, on the issue of the evaluation in an award of damages of the effect of a pre-existing condition (which is relevant to Mr Kneale’s unrelated neck condition and consequent cervical fusion), Ipp JA continued:
Where a defendant alleges that the plaintiff suffered from a pre‑existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre‑existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre‑existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre‑existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
As was pointed out in Newell v Lucas … the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.[163]
[163]Ibid [105]–[108] (emphasis added) (citations in original).
This analysis has been followed by this Court in Smith v Gellibrand Support Services Inc[164] and TJ[165] and by the New South Wales Court of Appeal in Varga v Galea[166] and Ridolfi v Hammond.[167]
[164](2013) 42 VR 197, 216 [73] (Osborn and Beach JJA).
[165](2024) VSCA 262, [144]–[149] (Beach, Orr JJA and J Forrest AJA).
[166][2011] NSWCA 76, [51] (McColl JA, Beazley JA agreeing at [1], Handley AJA agreeing at [87]).
[167][2012] NSWCA 3, [87]–[88] (Sackville AJA, Beazley JA agreeing at [1], Campbell JA agreeing at [2]).
The judge’s charge to the jury reflected these principles and is not the subject of any challenge on this application.
Consideration — The economic loss verdict
Footscray submitted that the award for economic loss was manifestly excessive and ‘must have also been influenced by irrelevant punitive considerations’. It was contended that there was insufficient evidence upon which one could determine loss of earning capacity in reliance on the assumed occupations used by Mr Thompson. It was noted that the amount for future economic loss not only reflected exactly that used by Mr Thompson in scenario 2B but that it also reflected the calculation to age 67 without any discount for vicissitudes, and particularly, his ‘neck and back injuries’.
Mr Kneale argued that the jury had a wide discretion in assessing economic loss and the damages for loss of earning capacity were by their nature ‘incapable of mathematical calculation’.[168] Counsel for Mr Kneale noted that the abuse of Mr Kneale began when he was around 12 and while acknowledging the difficulty in identifying the alternative trajectory of Mr Kneale’s work life, given the pervasive effect of the abuse,[169] submitted that there was plentiful material to support the modest employed carpenter scenario that aligned with the jury’s verdict and that this included Mr Kneale’s drive to be a productive family provider, his early interest in woodwork and construction, and his family history of career attainment. It was noted that the jury’s verdict aligned with the lowest earning scenario proffered by Mr Thompson and that the adverse contingencies may well, in the jury’s mind, have been outweighed by the favourable contingencies with the end result that the assessment was not manifestly excessive.
[168]Citing Paff v Speed (1961) 105 CLR 549, 559 (Fullagar J).
[169]Citing the examples of Wade v Allsopp (1976) 50 ALJR 643, 644 (Barwick CJ), 646 (Stephen J, Gibbs J agreeing at 645, Jacobs J agreeing at 648 and Murphy J agreeing at 648) and New South Wales v Moss (2000) 54 NSWLR 536.
We adopt what we said at [284]–[291] concerning appeals against jury verdicts generally and at [571]–[572] in relation to appeals against damages awards by juries. Consistent with these principles, an appeal against a jury verdict on economic loss requires the appellate court to take the evidence at its most favourable for the successful party at trial. In doing so, it takes into account that a jury is entitled to accept (or for that matter, reject) all, part (even a small part) or none of a witness’ testimony.[170] It is not bound to believe any witness or a combination or preponderance of the evidence of the witnesses.[171]
[170]Swain (2005) 220 CLR 517, 579–80, [204] (Kirby J).
[171]Ibid.
If the evidence construed on this basis supports the verdict, then it must stand. On the other hand, if it does not, then the appeal must succeed.

In Van Gervan v Fenton, Deane and Dawson JJ observed that ‘[t]he assessment of damages for personal injuries in a negligence action is not an exact science’.[172] The process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case.
[172](1992) 175 CLR 327, 343.
Of particular relevance to this case, given Mr Kneale’s age at the time of the abuse, are the observations of the Privy Council in Paul v Rendell:
The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.[173]
[173](1981) 34 ALR 569, 571 (Lord Diplock, Lord Russell of Killowen, Lord Keith of Kinkel, Lord Bridge of Harwich and Sir John Megaw) (emphasis added).
Cases involving historical sexual abuse of children or teenagers pose considerable difficulties for a court (whether the trial be held before a judge sitting alone or a jury) in the assessment of damages for loss of earning capacity. This is illustrated by the recent decisions of this court in Lonergan v The Trustees of the Sisters of St Joseph[174] and TJ.[175]
[174][2022] VSCA 208 (‘Lonergan’).
[175][2024] VSCA 262.
In Lonergan[176] (a case before a judge sitting without a jury), the plaintiff had been sexually abused by a priest when he was 12 and 13 years old and brought a claim some 45 years after the assault. As in this case, the Court had opinions from competing forensic accountants as to the calculation of economic loss. Also, as with this case, the lawyers for the plaintiff gave instructions to the forensic accountants as to the assumptions (scenarios) which were to be made in relation to the without abuse earnings of the plaintiff; as did the lawyers for the defendant. The plaintiff appealed the judge’s award of economic loss damages.
[176][2022] VSCA 208.
Under the heading ‘Forensic accounting evidence’ the Court of Appeal said:
Usually, as was the case here, the task of assessing an injured person’s loss of earning capacity is facilitated by a comparison between the injured person’s hypothetical past and future earnings had they not suffered the injury (ie ‘without injury’) and their past and future earnings after being injured (ie ‘with injury’). By definition, the ‘without injury’ calculation is entirely hypothetical. The ‘with injury’ calculation is derived from the person’s past actual earnings plus their projected future earnings in their injured state. The difference between the two calculations provides at least a starting point for assessing the loss of earning capacity by reason of the injury.
One might expect the calculation of actual (‘with injury’) past earnings to be capable of a reasonable degree of precision. But even that calculation can be complicated when, as here, income has been derived from a business owned and conducted by the injured person. A calculation of past (and future) hypothetical (‘without injury’) earnings involves many contestable assumptions. Such a calculation seeks to hypothesise what would have happened to the worker had they not suffered the impact to earning capacity from the injury. When an impact occurs to earning capacity at an early, formative stage of a person’s life, the assessment of loss can involve a particularly high degree of assumption and projection.
Finally, any calculation of future earnings (whether with or without injury) involves making assumptions as to the length of time the person will work until retirement, the nature of that work and amount of annual income to be derived from it. It also requires the conversion of the assumed future earnings into a present value, for the purpose of awarding a once-and-for-all award of damages, allowing for both adverse and beneficial contingencies as well as the earning capacity of invested money.
As was the case here, the sort of calculations described above are frequently assisted by expert forensic accounting evidence, with experts expressing opinions on loss based upon identified assumptions.[177]
[177]Ibid [17]–[20] (Beach, Macaulay and Kaye JJA).
The plaintiff had worked as a farmer for many years after the abuse. His case was that he disliked farming and but for the abuse would have sought an alternative career. The primary judge (Keogh J), whose decision was not disturbed by the Court of Appeal, accepted that this was a likely scenario and could be used as the basis for calculations of economic loss. The judge then based his assessment on the calculations proffered by a forensic accountant which used the median earnings of an Australian male as determined by the ABS and then adjusted (downwards) for living in rural Victoria and not obtaining non-school education or qualifications.[178]
[178]‘Non-school education or qualifications’ refers to educational qualifications other than primary or secondary qualifications.
The judge, in evaluating the Malec considerations,[179] discounted the accountant’s figure by 40%, primarily on the basis that there was a significant possibility that the plaintiff would have followed his eventual career path as a farmer (there was a strong tradition of farming in both his and his wife’s families) notwithstanding his disavowal of such a course.
[179]See [656]–[659] above.
In TJ,[180] a jury trial at first instance, the Court of Appeal had to determine whether a career trajectory suggested by the plaintiff and accepted by the jury could be substantiated on the evidence.
[180](2024) VSCA 262.
The jury had to determine, as a counterfactual or hypothetical, the likelihood that the plaintiff, who was a senior teacher at a catholic secondary school, would have progressed through the Australian Catholic education system to a higher position as a school principal rather than seek work overseas mid-career as he did as a result of the effects of the abuse.
Evidence was adduced from the plaintiff, his wife and a colleague as to the cause of his decision to leave Australia as well as his work history, achievements, ambition and ability in the education field, and the likelihood of promotion. The forensic accountant then calculated the loss based on this evidence and the available material relevant to school principals’ earnings which the jury, apparently, acted upon. As appears to be the norm, a forensic accountant went through a similar exercise on behalf of the defendant.
The Court of Appeal, in upholding the jury verdict, referred to the cogent evidence which underpinned the accountant’s assumptions and, ultimately, the jury verdict.
Finally, reference should be made to the decision of Heron DCJ in ZYX v Cable (No 5)[181] — a case of historical sexual abuse in Western Australia. Mr Thompson gave expert evidence as to the without abuse scenarios suggested by the plaintiff’s lawyers — as he did in this case. Putting to one side the judge’s scepticism as to Mr Thompson’s expertise and research,[182] his Honour said that it was ‘unrealistic to precisely assess and mathematically calculate’ the plaintiff’s past loss (from age 19) ‘when her capacity to earn income had not been established and when she was still studying and feeling her way in deciding what work or career she might pursue.’[183] His Honour later said ‘[t]here are too many imponderables and uncertainties’ as to what her career path or work history might have been had it not been for the poor mental health she has suffered as a result of the child sexual abuse.[184]
[181](2023) 111 SR (WA) 104 (‘ZYX’).
[182]Ibid [642]–[653].
[183]Ibid [655]. See also [657].
[184]Ibid [670].
The judge ultimately determined that the evidence was insufficient for the assessment of the plaintiff’s loss to be mathematically calculated and awarded a lump sum of $400,000 for economic loss.
Returning to this case, two conclusions can be drawn from the jury’s verdict. First, that the jury accepted that Mr Kneale, on the counterfactual in scenario 2B, would have worked from age 19 without interruption to age 67 as a carpenter rising to the role of supervisory employee carpenter. Alternatively, the jury may have taken the view that the figure of $125,000 gross per annum at the present time represented an appropriate level of income upon which to base an assessment of Mr Kneale’s impairment of earning capacity from age 19 to age 67.
Second, the jury made no discount for adverse contingencies either in the past or in the future in relation to the figure of $125,000.
As is apparent from TJ, Lonergan and ZYX, it is crucial for a plaintiff to adduce evidence to underpin a projected career path — whether direct or inferential (usually the latter in this type of case). On whichever basis the jury acted in this case, there was no evidence to support a verdict premised on either a putative career as a carpenter or at a current earning rate of $125,000 per annum.
The evidence of Mr Kneale, his mother and wife as to his occupational hopes and preferences as a youth or young man could not provide an evidentiary foundation for an assumption that he would have obtained full-time constant employment as a carpenter for all his working life. Nor could the extraordinarily vague evidence about his brother’s and mother’s achievements in the computer area (one as a computer programmer and the other as a web designer) provide any foundation for putative career earnings in that area. This is particularly so, as Footscray’s counsel at the trial pointed out, when no evidence had been adduced from either the mother or brother as to actual earnings.
The end result is that the verdict, whether referable to income or employment opportunity, was founded on speculation and also, significantly, made no allowance for adverse contingencies, particularly in relation to Mr Kneale’s neck condition and resultant surgery which must have had an impact on his hypothetical career as a carpenter (if that was to be entertained).
We do not accept counsel for Mr Kneale’s suggestion to the jury that the evidence from the treating neurosurgeon, Mr Timms, in the form of a report in December 2022 meant that Mr Kneale’s symptoms had resolved. That brief opinion was expressed in relation to the consideration of further cervical fusion surgery (a posterior fusion), and it is quite unclear what symptoms the doctor was referring to when describing resolution. Of course, this could have been clarified by calling Mr Timms — a course not embraced by Mr Kneale who preferred to call a consultant occupational physician (Dr Slesenger).
The true position, as emerges from the Monash neurosurgical reports, is that the operation performed in September 2019 failed to give Mr Kneale the desired result in terms of movement of his neck and radiated pain. The question of a further cervical fusion then became a consideration which has now been abandoned by his treating neurosurgeon.
No evidence was led from his school, his school mates or his family as to potential or actual earnings, or career opportunities. No psychological testing or opinion as to his intellectual capacity was adduced. The idea that he would have been a computer programmer, as pressed by his counsel in closing address, was fanciful and it is unsurprising that the jury chose the lowest option proffered by Mr Thompson. But that does not make up for the lack of evidence to support that figure.
To put it bluntly, the choice by Mr Kneale’s lawyers as to various employment scenarios to premise a claim for Mr Kneale’s lost earning capacity required an evidentiary foundation. There was none. For the jury to have reached a conclusion that it did (be it either as to rate of income or occupation) required sufficient evidence as to Mr Kneale reaching a particular career achievement. Accepting that the evidence is taken at its most favourable for Mr Kneale, here the best was not good enough.
There was no basis for the jury to return its verdict of $2,605,578 and the appeal against the verdict on economic loss should be allowed.
Reassessment of the award of damages for loss of earning capacity
We adopt what we have said in relation to the desirability of this Court reassessing the general damages verdict rather than ordering a retrial. The same considerations hold good for this ground.
As just mentioned, none of the scenarios proffered by Mr Thompson have an evidentiary foundation. There is simply insufficient evidence to establish the possibility of Mr Kneale progressing to those positions or levels of income. We do, however, accept that they might provide some assistance in determining potentially favourable contingencies when assessing the amount for economic loss in the Malec exercise.
We are satisfied that the diminution of earning capacity will be productive of Mr Kneale sustaining some financial loss. The next step in the Malec exercise is to assess the value of that loss by reference to the range of probabilities, possibilities and contingencies. As has been discussed, this step usually requires that a plaintiff demonstrate loss by reference to the difference between what was likely to have been earned without the tortiously inflicted injury, and what is likely to be earned with that injury.
As was said in Malec by Dawson J, ‘[d]amages founded on hypothetical evaluations defy precise calculation’.[185] Of course, it would be possible (and in some cases it is necessary) to evaluate the loss by simply identifying a figure as an intuitive assessment as was done in ZYX[186] but, in this case where there was some evidence available upon which to conduct a more scientific or arithmetical appraisal, we think such an approach should be preferred.
[185](1990) 169 CLR 638, 640. See also Talacko v Talacko (2021) 272 CLR 478, 493 [35] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).
[186](2023) 111 SR (WA) 104. See also Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151, 240 [365] (Gleeson, Leeming and White JJA); Searle v Commonwealth of Australia (2019) 100 NSWLR 55, 202–6 (Bell P, Bathurst CJ and Basten JA agreeing).
In our opinion, the only figure with an evidentiary foundation which can be used as a starting point upon which to carry out a Malec[187] assessment is that proffered by Ms Bowman. She utilised the ABS average earnings of a male educated to Year 12 level — as Mr Kneale was — and calculated the loss at $1,679,003 assuming that Mr Kneale worked full-time to age 67. This approach is generally consistent with that undertaken in Lonergan[188] by Keogh J.
[187](1990) 169 CLR 638, 642–3.
[188][2022] VSCA 208.
In this case, the likelihood of Mr Kneale earning such income, without the abuse, would seem high as he had achieved a VCE at a ‘tough’ school and had been the subject of the abuse whilst studying. Further, this figure does not allow for any future advancement in terms of tertiary or occupational training and consequential career improvement.
Accepting this as the appropriate starting figure, it is then necessary to evaluate the adverse and favourable contingencies — a number of which we have already mentioned. The favourable factors which need to be taken into account are as follows:
(a)That Mr Kneale passed his VCE and was described by several witnesses as being intelligent and smart.
(b)There was evidence from Ms Bowman that most males (rising to 70%) have a qualification beyond that of VCE — although there was no specificity about those qualifications. The figures for the scenarios used by Mr Thompson have some minor relevance here as demonstrating possible earnings in certain occupations.
(c)Mr Kneale has demonstrated a capacity to work hard, notwithstanding his psychological issues.
On the other hand, there are the following adverse contingencies:
(a)The standard factors, in the form of potential unemployment, unexpected events — such as pandemics, early retirement and, for the future, the risk of unrelated illnesses or disability. This usually mandates a discount of at least 15%.
(b)The effect of Mr Kneale’s neck condition and consequent cervical fusion. Although this was downplayed by counsel for Mr Kneale at the trial, it was a serious condition which required significant operative intervention. The evidence of Dr Slesenger paints a gloomy outlook regardless of his mental health. Even if one accepts that Mr Kneale has made a reasonable recovery (which is by no means unequivocal) the reality is, as counsel for Footscray correctly put it to the jury, that Mr Kneale’s working capacity has been reduced to that of light work. Of course, he may have obtained a job which permitted him to work in that capacity — as he did for a while at Taranto Windows and Doors. Whilst this factor is only relevant from 2017 onwards, it is nevertheless one that cannot be ignored in the assessment of the adverse contingencies, particularly for the future.
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.

The cross-appeal

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)[189] now renders the proposition untenable.
[189][2024] HCA 41.
The cross-appeal should be dismissed.

Summary of conclusions

In general, our conclusions are as follows:
(a)Footscray’s appeal against the jury verdict as to its liability to Mr Kneale should be dismissed.
(b)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.
(c)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.
(d)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.
(e)Footscray’s appeal against the verdict for economic loss should be upheld. In its place, a figure of $1,700,000 should be substituted.
(f)There should be no alteration to the sum awarded for future medical and like expenses.
(g)Mr Kneale’s cross-appeal should be dismissed.
We shall make orders to give effect to these conclusions.
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Attachment A

[2024] VSCA 314

12 December 2024