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The assessment of negligence-based personal injury damages in Australia is governed by state-based legislation. These civil liability regimes across the country all, by and large, operate to limit the amount of damages which can be awarded to claimants for particular heads of damages like general damages (pain and suffering), economic loss, and domestic assistance in circumstances where the loss arises out of breach of duty of care.
As a result, Australian personal injury case law is seldom witness to the “nuclear verdict” phenomenon which is oft reported and universally dreaded in certain jurisdictions like the U.S. The term “nuclear verdict” refers to any court award or settlement that is higher than expected, although legal experts have generally defined a “nuclear verdict” as one that exceeds USD 10 million, and which often includes disproportionally large general damages awards. Nevertheless, in the latter half of 2023, we witnessed a number of eye-watering personal injury damages awards handed down in the southern Australian states which, whilst not quite nuclear, are noteworthy.
In the cases described below, the larger-than-usual damages awards have been served by:
In ascending dollar value, the significant damages awards are:
This Supreme Court of Victoria case was reportedly the first time a civil trial against the Catholic Church had been heard before a jury in Australia, and the AUD 3.3+ million award was also reportedly the largest payout of its kind against the Church to an abuse survivor.
The claim relates to child sexual abuse committed in the 1960s and 1970s by convicted paedophile, Kiss. At the time, he was the Director of Youth with the Diocese of Wagga Wagga.
In 2002, Kiss pleaded guilty to 12 sexual assault charges related to incidents between 1966 and 1971 against four then-teenage boys, including TJ, who first met Kiss when he was a 14‑year-old altar boy at St Michael’s Cathedral. The three other boys had also made claims against the Church in relation to Kiss’s conduct, however, their claims were settled out of court.
The jury awarded TJ more than AUD 3.3 million in damages, broken down as follows:
The award for exemplary damages relates to the Church’s conduct towards TJ, in particular, its failure to admit that the abuse took place and to act on a prior abuse complaint from another of Kiss’s victims.
Subsequent to the verdict, the Court also heard arguments on the issue of whether there was a legal basis for the jury to award TJ exemplary damages and found that there was no basis to support the Church’s argument that statutory preclusions applied in circumstances where it had ultimately admitted vicarious liability for the abuser’s conduct.4
The Catholic Church is otherwise expected to appeal the verdict generally.
The day prior to the TJ verdict, following a four-week trial, another jury in the Supreme Court of Victoria awarded child abuse victim Kneale AUD 5.9 million in damages against the Western Bulldogs (formerly the Footscray Football Club) in respect of abuse he suffered between 1984 and 1990 by the Club’s former fundraising volunteer, Hobbs.
Kneale was 11 years old at the time the abuse commenced. He had reported the abuse to police in 1993, which led to Hobbs pleading guilty and being jailed for various crimes, including his role in a paedophile ring that gave Kneale to other men to abuse. Hobbs received a minimum 15‑month prison sentence and subsequently died in 2009.
The jury awarded Kneale AUD 5.9 million in damages, broken down as follows:
This award was reportedly AUD 2.5 million more than the amount Kneale’s legal representatives had sought from the Court. It is also the highest amount awarded by a jury to any abuse survivor in Australia, and the first against an AFL club.
Kneale had also claimed that the Club was vicariously liable as it gave Hobbs special access to him and sought aggravated/exemplary damages against the Club on the basis that it did not reach out to him when his abuse became public. The Club asserted during the trial that it did not know about the offending and Kneale’s claims for vicarious liability and for aggravated and exemplary damages were ultimately dismissed by the judge.
In the aftermath of the verdict, it has been reported that the Club has no insurance to cover the record damages payout and the Club will appeal the liability and damages findings.
Prior to the two cases described above, the highest court-awarded damages for pain and suffering in a child abuse case in Australia was AUD 525,000.
On 20 September 2023, the Supreme Court of Tasmania awarded a plaintiff AUD 12.5 million in damages relating to injuries sustained following an altercation with a security guard outside a Hobart nightclub in July 2014.
The plaintiff was heavily intoxicated on the night in question and had been ushered out of the now-closed Syrup nightclub in Salamanca for unsocial behaviour before he was involved in an altercation with a member of security outside the club. The plaintiff had thrown the first punch, striking the security guard’s ear, before he was punched by the guard and fell backwards, hitting his head on the concrete ground below and sustaining a significant head injury.
The Court found that the evidence presented at trial supported that the guard:
In the circumstances, the Court found that the guard was acting intentionally when he injured the plaintiff and as a result, the claim fell outside the damages restrictions imposed under Tasmania’s civil liability regime.
The Court awarded the plaintiff AUD 13.67 million in gross damages under common law, which included the following:
Although paling in comparison to amount awarded for care, the general damages award in this case was the highest award in Australian dollars by a Tasmanian court.
The plaintiff’s damages were assessed over a reduced life expectancy to age 68, with the Court relying on statistical expert data and evidence presented from the U.S.
To account for his role in the incident, the Court applied a 20% discount for the plaintiff’s contributory negligence in circumstances where he exhibited “unruly, uncooperative and antagonistic” behaviour in the lead up to the incident, and the plaintiff ought to have appreciated that he was risking his own safety by returning to the scene to continue the confrontation and throw a punch at the guard.
To the discounted award, the Court allowed a further AUD 1.55 million for administration costs, for a total AUD 12.49 million net compensation, which will be held by the state’s Public Trustee to invest and administer for the plaintiff’s care over his lifetime.
Whilst large damages awards are not uncommon in personal injury cases involving brain injuries or child sexual abuse, there does appear to be a general upward trajectory in the amount awarded for compensation across various heads of damages, in particular, general damages. This has become prevalent where the circumstances of the case permit the judge or the jury to sidestep the limitations and caps that would otherwise have been imposed under the state’s applicable civil liability regime.
Time will tell whether verdicts such as the first two outlined above herald permanent change in the institutional abuse landscape and increase in the level of damages that plaintiffs in abuse claims can expect to receive at hearing.
Indeed, if unsuccessful, the foreshadowed appeals may also set new precedent for what (larger) damages awards are considered reasonable damages in Australia for historical abuse actions, which may well encourage abuse survivors to bypass the National Redress Scheme, under which compensation is capped at AUD 150,000, in preference for litigating their claims through the court system.
The Kneale verdict and its foreshadowed appeal also has implications for other AFL clubs and the League in general, given the awareness of other potential historic abuse cases connected to football clubs (such as those reported at the St Kilda and Geelong clubs) and the likelihood that few of these clubs, if any, would have held insurance covering and responding to the periods and acts in question.
