Vicarious Liability, Criminal Acts, and Volunteers

Introduction

Key Points

• There was no evidence on which the jury could have reasonably found that the relationship between the volunteer and sporting club was one in which vicarious liability could arise.

• There was no evidence on which the jury could reasonably have awarded aggravated or exemplary damages.

On 9 November 2023, the jury found the Club was negligent and assessed damages in the sum of $5.9 million.  Towards the end of the Plaintiff’s case, the Club applied for summary judgement in relation to the vicarious liability claim and Justice Richard ruled she would not be putting vicarious liability, aggravated or exemplary damages to the jury. On 23 November 2023, Justice Richard published her reasons for that ruling.

Vicarious Liability

While Mr Kneale pleaded a case that Hobbs was a Club employee, he did not advance that case at trial. Instead, he pursued a claim that Hobbs was a ‘well known and special volunteer’ at the Club.

Vicarious liability typically arises in the context of an employment relationship, whereby, an employer is liable for torts committed by an employee in the course of their employment. The Plaintiff relied on Bird v DP [2023] VSCA 66, to support the contention that vicarious liability could apply to the relationship between the Club and Hobbs, even though Hobbs was not a Club employee.

In Bird, the Court found that the Diocese was vicariously liable for torts committed by an assistant Priest, who was not an employee. Justice Richard concluded that there was no evidence on which the jury could reasonably find the Club vicariously liable for Hobbs’ wrongdoing. Her Honour found that the Court of Appeal decision in Bird was, as a matter of policy, just to extend vicarious liability to the relationship between a diocese and a priest/assistant priest – a relationship like no other, ‘founded in the context of the hierarchical system of a Diocese of the Roman Catholic Church’. The Bird decision was not a general invitation to identify other non-employment relationships with indicia of vicarious liability.

Critically, the relationship between the Club and Hobbs did not remotely resemble that between the Diocese and the assistant priest in Bird. Justice Richard observed that Hobbs’ roles at the club were ‘informal, undocumented, and uncertain’ and there were no written policies regarding recruitment, supervision, or control of the Club’s volunteers. No one was quite sure what his roles at the Club were beyond selling membership and raffle tickets and it was not possible to say that the work he performed was so interconnected with the business of the Club that he was, in effect, conducting that business. While the handling of money by volunteers was supervised, there was no other evidence that the Club exercised control over Hobbs in relation to any other aspects of his work.  He did not wear a uniform and there was no evidence the Club clothed him with authority to represent it in anything other than selling tickets and fundraising. 

It was also relevant that there was simply no evidence that the Club assigned any role to Hobbs vis-à-vis Mr Kneale, let alone a special role involving authority, power, trust, control, or the ability to achieve intimacy. The Club was unaware of Mr Kneale’s existence. He was not a player, member or volunteer, and the Club did not bring Mr Kneale into contact with Hobbs, entrust him into Hobbs’ care, or place him under Hobbs’ power or control. Mr Kneale was merely a spectator who, at the suggestion of a school mate, found and met Hobbs at the ground on game day. 

Aggravated Damages

There was no evidence on which the jury could have reasonably awarded aggravated damages. This was because any finding of negligence by the jury was because of the Club’s omissions (failing to notice or act on red flags or failing to exclude Hobbs from the Club) and not due to any deliberate or conscious wrongdoing. There was no evidence that the Club knew of Mr Kneale’s existence until 2022 or that he was the victim. It was impossible to characterise the Club’s indifference as malicious, deliberate, insulating or high-handed.

Exemplary Damages

Justice Richard found it would not have been reasonably open to the jury to have found that the Club had deliberately, intentionally, or recklessly exposed a child spectator such as Mr Kneale to the risk of being sexually abused by Hobbs.  At most, the jury could have found the Club ought to have known of the risk and failed to do anything to respond to that risk

The Hicksons Health Team and Special Issues Team will be readily available, should you need any assistance in clarifying vicarious liability.

Article written by Hicksons’ Partner, Michelle MacMahon, and Solicitor, Tara Tuesley.