Exploring the Boundaries of Vicarious Liability: A Case Study in Historical Abuse Cases Beyond Employment

Between 1984 and 1989, the Plaintiff was sexually abused, groomed and trafficked for abuse by others by Mr Graeme Hobbs, a volunteer of the Defendant, Footscray Football Club (the Club). The abuse primarily took place at the Club’s Western Oval and attached offices.

Mr Hobbs’ role was not formalised by any policy or recorded duties and he wore no uniform.

The plaintiff was not directly known to the Club.

vicarious Liability

The Plaintiff relied on Bird v DP (2023) 69 VR 408 (Bird) to support his argument that the Club was vicariously liable for the wrongdoing of Hobbs, who sexually abused the Plaintiff whilst he was a volunteer at the Club.

Ultimately, the question for the Court became whether Hobbs’ role met the elements of the criteria that would give rise to a claim of vicarious liability – that being, whether Hobbs’ volunteer role gave him authority, power, trust, control and the ability to achieve intimacy with the victim.

As a matter of law, the Court did not consider vicarious liability attached to the “sporting club-volunteer” relationship. It distinguished Bird's “diocese-priest” relationship from the “sporting club-volunteer” relationship present on the facts.

The Court ultimately found three reasons why the Club was not vicariously liable for Hobbs’s wrongdoing.

(a) In Bird, the decision was that, as a matter of policy, it was to extend vicarious liability to the relationship between a diocese and a priest or assistant priest – a relationship ‘founded in the context of the hierarchical system of a Diocese of the Roman Catholic Church.’. In Bird a priest was controlled by the Church’s rules, worked to the church’s purpose and wore the church’s uniform and was in a position of authority to the congregation. The extension of vicarious liability in that situation was not a general invitation to identify other non-employment relationships with indicia or vicarious liability.

(b) The relationship between Defendant and Hobbs did not resemble that between the Diocese and assistant priest:

(c) The Defendant did not assign any role to Hobbs vis-à-vis the Plaintiff, let alone a special role involving authority, power, trust, control, or the ability to achieve intimacy with the victim. In fact, at the time, the Club did not know the plaintiff existed.

“The Club did not bring Mr Kneale into contact with Hobbs, entrust him to Hobbs’ care, or place him under Hobbs’ power or control. Mr Kneale was merely a spectator at the Western Oval when, at the suggestion of a school mate, he first found Hobbs, and on each other occasion that he met Hobbs at the ground on a game day. The evidence that the Club trusted Hobbs with money was not to the point. I considered that there was no basis on which the jury could reasonably have found that Hobbs’ voluntary roles with the Club provided the opportunity and occasion for his abuse of Mr Kneale.”

Damages Assessed

The Plaintiff was awarded judgment for approximately $5,940,000, broken down as follows:

(a) $3,250,000 for pain and suffering and loss of enjoyment of life;

(b) $2,605,578 for past loss of earnings and loss of earning capacity; and

(c) $87,573 for future medical and related expenses

Takeaway

Ultimately, this case raises an interesting question concerning volunteers and vicarious liability. It highlights as a reminder that Courts remain prudent in extending the scope of vicarious liability to non-employment, volunteer relationships.

Defendants within the institutional abuse context may avoid being deemed vicariously liable for the wrongdoing of their volunteers if particular features, i.e., authority, power, trust, control and the ability to achieve intimacy with the victim, are absent from the role of the wrongdoer. However the less control and supervision a body exercises over their volunteers, the higher the risk of negligence being found (as in this case).