Civil Jury Trials and the Assessment of Damages in Institutional Abuse Claims

Victoria occupies a unique position in Australian civil litigation. It is said to be the only Australian jurisdiction that retains regular civil jury trials.^[1] This procedural distinction has assumed particular significance in the context of institutional abuse claims, where, in late 2023, two Victorian Supreme Court juries returned what were regarded as the largest awards in this area: $5.94 million^[2] and $3.3 million,^[3] respectively. While both awards were later reduced on appeal,^[4] they remained toward the higher end of the range typically awarded in judge-alone proceedings, particularly for general damages. The size of those awards raises important questions about the role the civil jury system plays in today’s judicial system, including about the relationship between mode of trial and quantum, and about the role of appellate review of jury verdicts.

What is Victoria’s role in Australia’s civil jury system?

In most Australian jurisdictions, some decades ago, common law civil actions, such as actions in negligence, were heard and determined by juries. A judge would decide issues of law, and the jury would decide issues of fact. Over recent decades, the use of the civil jury has declined, and the default is that civil actions are determined by a judge sitting alone. This is lamented by some commentators, who view the civil jury as fundamental to the legitimacy of the civil legal system, which is ‘a fundamental requirement for the proper functioning of a democratic community’.^[5] In NSW, before 2002, either party could requisition a jury on application and payment of a fee.^[6] This ‘right to jury trial’ was subsequently removed, with the current NSW law providing that a court must be satisfied on application by a party that ‘the interests of justice require a trial by jury in the proceedings’.^[7] The stated reasons were that jury trials were more costly and time-consuming than judge-alone trials, and the change was proposed to reduce the strain on the court and reduce costs for parties.^[8]

Under Victorian rules, parties enjoy a prima facie entitlement to a civil jury trial: a party whose claim in the County or Supreme Court is founded in contract or tort need only express its desire for a jury trial,^[9] comprising six jurors.^[10] The court, however, retains the discretion to direct a trial without a jury if in its opinion the proceeding ‘should not in all the circumstances be tried before a jury’.^[11] While there was an expectation that Victoria would follow NSW,^[12] there was little public appetite. In fact, in 1993, the Victorian government’s attempt to remove the right was abandoned after ‘huge public outcry’.^[13] 

Courts have made clear they will not dispense with the right lightly; the party seeking a judge-alone trial bears the onus and must demonstrate some ‘special reason’ or ‘good cause’.^[14] In McCullough v Footscray Football Club,^[15] an institutional defendant sought an order to dispense with the plaintiff’s requisition of a jury and for the trial to proceed by a judge alone. The plaintiff was a witness in the Kneale proceedings and alleged abuse by the same offender. The defendant argued that the publicity from media coverage of the Kneale proceedings would render a jury partial and create the perception that key issues were already decided.^[16] The defendant also argued that the determination of complex issues, such as a novel duty of care, risked inconsistent findings between the judge and jury.^[17] The court held that neither issue met the threshold of ‘good cause’ or ‘special reason’. O’Meara J held that the alleged risks could be cured by jury directions, and any disputes concerning the complexity in the defendant’s case in negligence could be adequately resolved by the jury.^[18] If, for instance, there were issues for which there could be no reasonable solution, such as to preclude a fair trial, that may warrant dispensing with the jury.

Why choose a civil jury?

The jury system is vital to the administration of justice in Australia, though this more obviously applies to the criminal jury than the civil jury. Community participation, however, is fundamental to both. As Gleeson CJ stated in Swain, ‘decision-making by the collective verdict of a group of citizens…has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards’.^[19] Though in circumstances where a plaintiff can choose a jury trial, why would they? One reason might be that plaintiffs perceive that juries have a pro-plaintiff bias and will be more sympathetic than a judge would. If juries are taken to be a ‘microcosm of the entire community’^[20], a plaintiff might believe the ordinary citizen in a jury is better placed to evaluate and determine the impact of injuries resulting from negligence than judges, who rely on precedent and an established judicial method. In institutional abuse cases, unlike judges, jury members are not accustomed to regularly encountering graphic or shocking material, nor is the jury familiar with the size of verdicts of prior precedents. A 2001 empirical study of hundreds of jurors who served on County and Supreme Court trials in Victoria, including personal injury trials, found the juries had a strong preference for a jury to decide their matter if they were the injured party, but preferred a judge if they were the defendant.^[21] These results are consistent with the view that juries have a pro-plaintiff bias, though this view is not empirically validated, at least in Australia. Regardless, a perception does not need to be empirically ‘accurate’ for someone to have it and for it to influence their decision to have a jury trial.   

How does the court conduct an appellate review of a civil jury verdict of general damages?

The purpose of an award of general damages^[22] is to ‘compensate a plaintiff for all of the physical harm and mental harm suffered…as a result of the conduct of the defendant’.^[23] This reflects the compensatory principle, which entitles the plaintiff to damages that, so far as money can do, will put them in the same position as they would have been had the tort not been committed.^[24] Notwithstanding, it is well-recognised that in many cases, especially abuse cases, no financial compensation can put a plaintiff back in the position they would have been in had the abuse not occurred.^[25] 

On appeal, the defendant in TJ, a diocese, sought to set aside the jury verdict of $1.1 million in general damages on the ground that it was manifestly excessive. The award concerned injuries arising from a four-year period of grooming and sexual abuse by Father Vincent Kiss while the plaintiff was a teenage boy. The jury’s verdict was informed by considering the plaintiff’s evidence, including numerous expert reports, which demonstrated that the trauma from the abuse had caused complex PTSD and depression. 

When an appellate court is reviewing damages, the core question is whether the appellant has demonstrated that the jury’s verdict is ‘outside the bounds of reason’,^[26] in the sense that it was not reasonable or proportionate for the jury to award the verdict, and it therefore should be set aside on the ground it was manifestly excessive. In undertaking this exercise, the court is prohibited from relying on its knowledge of damages awarded in other cases to derive a ‘norm or standard’ against which to determine the size of the award, as was stated in Planet Fisheries.^[27] The court must decide whether the award is proportionate to the plaintiff’s circumstances.^[28] The Planet Fisheries rule does not, however, prevent the members of the court from having regard to their knowledge of assessments of damages in other cases generally and of their perceptions of the general standards of fairness and moderation in the community to determine the reasonableness and proportionality of the size of the verdict.^[29] Indeed, there is some ‘utility in looking generally at past cases as a guide’ when examining reasonableness.^[30] 

In TJ, despite the court’s recognition of the ‘extremely serious’^[31] abuse which had ‘very serious consequences and detrimental effects’^[32] on the plaintiff’s life, the court’s dispositive reasoning was that given its perception of current community standards and general awareness of damages awards in its jurisdiction, the amount was ‘significantly beyond an amount which was reasonably open to the jury’.^[33] The same determination was made in Kneale, where the court noted the amount was ‘far too high and cannot stand’.^[34]

It is not difficult to see how the court arrived at these conclusions. The highest award of general damages in an institutional abuse case before either TJ or Kneale was $525,000.^[35] One reason the general damages were so large likely reflects that there are differences in how juries perceive evidence compared to judges. The jury heard evidence that the abuse had irrevocably affected Mr Kneale’s life, causing serious mental ill health and difficulty with employment. In fact, the court in Kneale observed that a ‘likely explanation’ for the award of $3.25 million was that the jury was ‘simply horrified by the injuries Mr Kneale had suffered as a result of Hobbs’ conduct and the course that his life had taken as a result’.^[36] In deciding the awards were manifestly excessive, the courts in both judgments were not suggesting the abuse or its impact were unworthy of large awards, nor that the judges themselves were not ‘horrified’. In each case, the question is whether the award is reasonable and proportionate to the circumstances. In addition, a decision that a verdict is manifestly excessive does not establish a precedent that no verdict can be as high as the initial awards were in these cases. An award will only be set aside if it is ‘grossly disproportionate to the injuries and consequences’,^[37] and that question will only arise if a party appeals.

How does the court reassess a jury’s verdict of an award of general damages?

Where a verdict is manifestly excessive, the court may remit the quantum to be retried by a jury, though this is undesirable as a retrial increases costs and delays resolution and finality.^[38] In reassessing damages, the court’s task is to ‘formulate such order or judgment as it thinks proper to the case’^[39] which may involve considering whether any evidence was disputed. That was not an issue in either case, where, respectively, the court reassessed the awards of general damages in TJ to $550,000 and in Kneale to $850,000. In both cases, the dispositive paragraphs began with the acknowledgement that the judges were ‘doing the best we can’^[40] which appears to reveal an awareness that the exercise is imperfect and substitutes the views of the judges who are ‘often said to reside in ivory towers and to be out of touch with the public at large’^[41] in preference to the jury decision. In conducting a reassessment, the court is entitled to have regard, as it did in Kneale, to its ‘knowledge generally of verdicts in this state (in both judge alone and jury trials)’.^[42] This confirms that courts will, even in a ‘general’ sense, compare jury verdicts with damages awarded in other cases as part of the reassessment process. 

In conclusion, the Victorian civil jury is a unique outlier that provides parties a prima facie entitlement to jury trials and ensures the administration of justice remains connected to community standards. Ultimately, McCullough makes clear that courts will not readily dispense with the right to a civil jury, while TJ and Kneale reflect the court’s delicate balance between honouring the community standards reflected in a jury verdict, while ensuring damages remain reasonable and proportionate.

Bibliography

^[1] Jacqueline Horan, 'The Law and Lore of the Australian Civil Jury and Civil Justice System' (2006) 9(1) Flinders Journal of Law Reform 29; Jacqueline Horan, 'Perceptions of the Civil Jury System' (2005) 31(1) Monash University Law Review 120, 121 (‘Horan, “Perceptions”’); Footscray Football Club Limited v Adam Kneale [2024] VSCA 314, [279] (‘Kneale’).

^[2] Kneale v Footscray Football Club Ltd [2023] VSC 679, [2]-[3]; 'Western Bulldogs Payout to Abuse Survivor Adam Kneale Reduced', ABC News (online, 12 December 2024) https://www.abc.net.au/news/2024-12-12/western-bulldogs-payout-to-abuse-survivor-adam-kneale-reduced/104716882.

^[3] TJ (a pseudonym) v The Bishop of the Roman Catholic Diocese of Wagga Wagga [2023] VSC 704, [33]; Lucas Forbes, 'Catholic Diocese of Wagga Wagga Appeals Compensation Payout', ABC News (online, 8 November 2024) https://www.abc.net.au/news/2024-11-08/catholic-diocese-wagga-appeal-compensation-payout/104575910.

^[4] Kneale; Bishop of Wagga Wagga v TJ (a pseudonym) [2024] VSCA 262 (‘TJ’).

^[5] Horan, ‘Perceptions’, 148. 

^[6] Supreme Court Act 1970 (NSW) s 85 (prior to amendment by Courts Legislation Amendment (Civil Juries) Act 2001 (NSW)).

^[7] Supreme Court Act 1970 (NSW) s 85.

^[8] New South Wales, Parliamentary Debates, Legislative Assembly, 28 November 2001, 19039 (Bob Debus, Attorney General, Minister for the Environment, Minister for Emergency Services and Minister Assisting the Premier on the Arts). 

^[9] Supreme Court (General Procedure) Rules 2025, r 47.02(1) (‘SCGPRs’); County Court Civil Procedure Rules 2018, r 47.02(1) (‘CCCPRs’).

^[10] SCGPRs, r 47.02(4); CCCPRs, r 47.02(4).

^[11] SCGPRs, r 47.02(3); CCCPRs, r 47.02(3).

^[12] Horan, ‘Perceptions’, 121.

^[13] Horan, ‘Perceptions’, 122.

^[14] Gunns Ltd v Marr (No 5) [2009] VSC 284, [9(g)]; Birti v SPI Electricity Pty Ltd [2011] VSC 566, [15(g)]. 

^[15] McCullough v Footscray Football Club Ltd (Jury Ruling) [2025] VSC 443, [78(c)] (‘McCullough’).

^[16] McCullough, [32].

^[17] McCullough, [33]. 

^[18] McCullough, [144].

^[19] Swain v Waverley Municipal Council (2005) 220 CLR 517, [7] (Gleeson CJ); see also R v White [2024] NSWSC 1369, [29] (Yehia J).

^[20] John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 165, [115] (Kirby J).

^[21] Horan, ‘Perceptions’, 127-28.

^[22] Also known as non-economic or non-pecuniary, or compensatory damages.

^[23] Gersbach v Gersbach [2018] NSWSC 1685, [504].

^[24] Stewart v Metro North Hospital and Health Service [2025] HCA 34; 99 ALJR 1348, [1].

^[25] Reed (a pseudonym) v Smith (a pseudonym) [2024] VCC 1387, [43].

^[26] TJ, [61] citing Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 227, 239.

^[27] Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 124–5 (‘Planet Fisheries’).

^[28] TJ, [75].

^[29] TJ, [76].

^[30] Kneale, [572] citing Lapetina v Elgee Park Pty Ltd [2024] VSCA 39, [83].

^[31] TJ, [83].

^[32] TJ, [90].

^[33] TJ, [90].

^[34] Kneale, [587].

^[35] Comensoli v O’Connor [2023] VSCA 131, [2(a)], [74].

^[36] Kneale, [585].

^[37] Planet Fisheries, 124–5.

^[38] Kneale, [591].

^[39] Backwell  v AAA [1997] 1 VR 182, 213; TJ, [94]; Kneale, [598]. 

^[40] TJ, [100]; Kneale, [602].

^[41] TJ, [76].

^[42] Kneale, [602].