Duty of Care & Key Pieces of Legislation

Transcription

1 IN ASSOCIATION WITH THE STANDING COMMITTEE ON RECREATION & SPORT (SCORS) Duty of Care & Key Pieces of Legislation 10 November 2009 The Australian and New Zealand Sports Law Association

2 Index Page Duty of care 3 Introduction 3 Torts 4 Negligence 4 Introduction 4 Duty of care 4 Who owes a duty of care? 4 Relationship between sports administrators and players 5 Breach of duty - standard of care 6 Age of the plaintiff 7 Consider the defendant s conduct 9 Error of judgment or negligence? 9 Factors in determining standard of care 10 Obligations of sports participants and officials 12 Omissions 15 Officials and participants 15 Participants and spectators 17 Occupier s liability 19 Vicarious liability 26 Private nuisance 29 WA Legislation 32 Civil Liability Act 32 Volunteers and Food and Other Donors (Protection from Liability) Act 33 Working with Children (Criminal Record Checking) Act

3 Duty of Care - General Introduction 1. The meaning of the expression duty of care depends on who you are talking to and in what context. In very general terms it can probably best be described as the obligation one person has towards another to ensure that they don t cause them to suffer harm or damage. 2. Duty of care is perhaps most strongly associated with negligence but in recent years there has been a steady increase in legislative initiatives that have extended this expression to other areas of the law including working with children, occupational health and safety (OH&S), and anti-discrimination issues. In each case there is an obligation (a duty, if you like) on clubs and associations to ensure: the safety and welfare of children (working with children), that grounds and facilities are safe (OH&S), and that participants are not subject to discrimination, racial vilification or harassment (anti-discrimination). 3. In negligence (which is about the failure by a person to exercise reasonable care and skill), and where the legal expression duty of care is most commonly encountered, it should be noted that it is only owed to persons whom it is reasonably foreseeable will suffer injury by a lack of due care. 4. Foreseeability in negligence is a question of fact. It is based on an objective test of whether a reasonable person would have foreseen that there was a real risk of the likelihood of injury, taking into account all the circumstances of the particular case, to people in the plaintiff s position. Could a reasonable person have anticipated the risk of harm occurring and taken the necessary steps to avoid the risk? 3

4 Torts (1) Negligence Introduction 5. As far as sport is concerned, negligence is an appropriate action for an injured player to use to recover compensation for any injuries that they may have received from their involvement in sport, including from an act of sports-field violence. Negligence is often also an appropriate action for the recovery of damages for injuries that participants, including referees, umpires and spectators, may incur as a result of a lack of care by occupiers or event organisers. 6. It should be noted that legal issues relating to sporting venues are not necessarily always contained within the stadium or at the venue. The sporting action may take place within the stadium or venue, however residents living near to such events will often have to contend with problems such as spectators, noise levels and quite possibly the direct effects of what was happening inside the stadium or venue, such as cricket and golf balls being hit outside the venue. The law relating to damage outside a stadium or venue caused by the activities that take place inside may also fall within the ambit of the law of torts and create a cause of action in negligence or even private nuisance. Duty of care Who owes a duty of care? 7. In very simplistic terms, a duty of care is a duty owed by a defendant to a plaintiff based on a particular relationship between the parties, e.g., players in rugby league owe a duty of care to other players not to execute spear tackles on them or players participating in Australian rules football owe a duty of care to other players to keep their elbows down when tackling or bumping another player. In each case, not only is it against the rules, but it also recognized as an act which carries with it a high degree of risk of injury. If a player is injured as the result of such a tackle, the offending player/s may find themselves being sued in negligence for the injuries the tackled player may sustain. A good example is Jarrod McCracken when he successfully sued Melbourne Storm Rugby League Football Club and two others in 2005 for executing a spear tackle on him. It is a legal obligation to avoid causing harm where the harm is reasonably foreseeable. 4

5 8. In general, a duty of care is owed only if a defendant ought reasonably to foresee that their conduct may be likely to cause loss or damage to the plaintiff or a class of persons to which the conduct belongs. The duty that a defendant owes is not to ensure that no harm befalls a plaintiff as that would effectively make them an insurer, but only a duty to take reasonable care. Relationship between sports administrators and players 9. It is unlikely that sport and recreation administrators owe a duty of care to participants in a sport or recreational activity in determining the rules of the game. As far as a court is concerned, policy considerations suggest that no duty was owed having regard to the public utility of sports and the undesirable consequences of placing legal obligations upon administrators who may be part-time amateurs. In Hyde v Agar & Ors; Worsley v Australian Rugby Football Union Ltd & Ors, a 1999 case, the appellants (the original plaintiffs) were two young men who had sustained serious spinal cord injuries playing rugby union. The respondents were individual members of the International Rugby Football Board. The Board members attended annual meetings as representatives of national member Unions and there were clear indications that the sports administrators saw themselves as setting out the rules for the sport of rugby and that it regarded safety of players as an important factor. It was argued by the appellants that the assumption of control by the Board and reliance by players were arguably matters giving rise to a prima facie duty of care. The class of potentially affected persons, although large, was finite and readily identifiable. However, in arguing that a duty of care was owed, the appellants were treading fresh ground. The High Court held that there was no duty of care owed by the Board to the respondents. To hold that the Board members owed a duty of care to each person who played rugby union was unrealistic, raising the spectre of an indeterminate number of claims by an indeterminate number of people throughout the world. The decision to compete was freely made by adult players and in making that decision the players had to accept responsibility for the risks associated with playing a physically dangerous sport such as rugby. The Board, as the responsible lawmaking authority for rugby union, did nothing which facilitated or encouraged the breach of the laws about scrummaging by the opposing players which was the immediate cause of the injuries to the respondents. 5

6 10. The High Court decision is limited to those adult persons being hurt by the conduct of other participants who participate voluntarily in a sport which carries with it the risk of injury and it can reasonably be assumed that the individuals concerned will take personal responsibility for what they do. In Insurance Exchange v Dooley (2000), during a baseball game the plaintiff, a member of the fielding team, deliberately obstructed the first defendant, a member of the batting team, as he attempted to run for second base and collided with the plaintiff who was injured. The plaintiff sued the first defendant and the League that controlled the baseball competition claiming damages for negligence. It was held, that even if baseball was not officially a contact sport, collisions such as that between plaintiff and Dooley commonly occurred, did not cause injury, and were accepted by participants in the sport as an ordinary feature of their game. There was no evidence that the League allowed any risks to exist, or allowed games to be played with violence, or tolerated any dangerous state of affairs in the competition it organised. Breach of duty standard of care 11. Once a duty of care is established, the plaintiff has to show that the defendant has breached that duty by falling below the standard of care imposed by the law. This requires that a defendant exercise a certain degree of care or standard of conduct (based on the reasonable person) towards others. Or to put it another way, would a reasonable defendant have foreseen that their conduct involved a degree of risk of injury to the plaintiff? 12. Western Australia, like other jurisdictions around Australia, implemented civil liability reforms which have codified the law as to the standard of care (see the Civil Liability Act 2002, sections 5B and 5C). The first example aside, as this was based on the common law before the statutory changes took effect (Campbelltown City Council), 1 the examples below illustrate how easy it is for a person to get injured and for litigation to follow: 1 Note that the year in brackets is when the case came before the court, not the time when the accident happened which could be 3 or 4 years earlier. And in the Campbelltown City Council case, it would probably have been decided the same today anyway. 6

7 s In Campbelltown City Council v Frew [2003], the respondent child was injured when she slipped on the nosing of tiered seating after getting out of the water at the appellant s swimming pool. It was held on appeal that while the council was aware the tiers were used as steps, it had not acted unreasonably as it had taken such care as was reasonable in the circumstances and that where the risk was obvious, it was expected that persons would take care for their own safety (an obvious risk is one that is obvious to a reasonable person in the position of a person who suffers harm: see s 15). In Williams v Latrobe Council [2007], the plaintiff, an Australian Rules footballer, suffered a serious ankle injury when his foot landed awkwardly, partly on the top of a cover and partly on the surrounding soil. It was held that a reasonable council and a reasonable football club would have foreseen that if the cover was not flush with the surrounding soil, an uneven surface would be created which would give rise to the risk of injury to a footballer, i.e., a risk that was more than foreseeable and could (and did) result in serious injury. It was obvious and could be removed without any great expense. In Green v Country Rugby Football League of NSW Inc [2008], the court had to consider the liability of the Country Football League for the injuries sustained by Green, a 16-year-old playing in the position of hooker against an open age rugby team, and concluded that none of the grounds were established. In other words, the Association had not breached its duty of care. These grounds included that the League was negligent in allowing the plaintiff to play in an open age competition notwithstanding his physical characteristics making him more susceptible to scrum injury, not requiring medical examinations of players prior to registration, failing to adequately warn players of risk of injury or disseminate information on risk of injury and how to minimise it, failing to de-power scrums or instructing referees to de-power scrums, failing to change the rules of rugby league, and allowing unaccredited coaches to coach and their teams to participate. Age of the plaintiff 13. The age of the plaintiff is extremely important. As far as the courts are concerned, children are much more likely to act inadvertently and they certainly lack the judgment of an adult when it comes to assessing risk, so it is important to be on guard. 7

8 s In Blunden t/a Southern Water Sports v Solomon [2005], the question the court had to consider was whether safety instructions given to a 16-year-old novice jet skier were adequate to discharge the necessary duty of care. The failure of the appellants to take into account the age of the respondent, his inexperience as a jet ski rider, his lack of knowledge about mechanically propelled vehicles and the fact that experienced skiers were aware that novice skiers reacted in particular ways to an emergency or danger, which the appellant would be well aware of, constituted a breach of the appellant s duty of care. In Macarthur Districts Motor Cycle Sportsmen Inc & Ors v Ardizzone [2004], the respondent, a 12-year-old motocross rider, was injured when another rider ran into him. Here it was held that foreseeability of injury to the respondent was clear if there were insufficient track marshals. In Shellharbour City Council v Rhiannon Rigby & Anor [2006] the plaintiff, a 14- year-old girl, was injured when she fell at the first jump of a BMX track. The Court of Appeal dismissed an appeal by the council and the BMX Club against a finding that the ramp and the first jump constituted a foreseeable risk of injury in the case of inexperienced adults, a risk that was increased in the case of children such as the plaintiff who was 13 at the time of the accident. 14. However, while the age of the plaintiff is a very important consideration, maturity and judgment are also important factors that a court will take into account in appropriate circumstances. These will vary from individual to individual but if it can be established that the individual has had considerable experience in the sport and as a result is able to assess the risks for him or herself, then he or she may have to bear the consequences of their actions. s In Macarthur Districts Motor Cycle Sportsmen Inc & Ors v Ardizzone participation was voluntary and the participants, even though they were children, understood motocross was inherently dangerous, but they were not able to appreciate and respond to risks in the same way as adults who controlled and ran the events. In this case the court was of the view that a child could not be expected to be able to make a good assessment of risk or whether to participate, instead relying on the 8

9 adult organisers to take all necessary precautions to ensure the safety of participants to foreseeable risk. In Leyden v Caboolture Shire Council [2007], a 15-year-old, who had been riding a BMX bike since he was 10-years-old, was seriously injured while attempting a jump which he knew to be dangerous at a BMX track controlled by the Council. In this case though it was held that he had sufficient maturity to understand and accept the risk involved. Consider the defendant s conduct 15. It is a question of fact whether the particular conduct complained of is a breach of duty and it focuses on the conduct of the defendant and the risks created by their conduct In Gray v State of Queensland (2000), a rugby league game was played hard with effective tackles and there was no evidence that it was played violently with breaches of the rules putting the other team at risk of injury, thus there was no breach of duty. Error in judgment or negligence? 16. It can, however, be difficult to ascertain whether misjudgment amounts to a mere error of judgment or negligence In Kosciusko Thredbo Pty Ltd v Smith (2001), a ski instructor was found to have failed to allow a sufficient run out area when teaching beginners to snowplough by failing to take into account environmental factors on the day, failing to identify potential obstacles and failing to take steps to minimise the impact. 9

10 Factors in determining a standard of care 17. Factors in determining the reasonable standard of care include: the probability of risk or injury (s 5B(2)(a) of the Civil Liability Act) s In Bolton v Stone (1931), the court held that the likelihood of risk of being hit by a cricket ball hit out of the ground and hitting a passer-by was so small as not to be reasonably foreseeable But in McCracken v Melbourne Storm Rugby League Football Club and 2 Ors, the probability of injury from a spear tackle in a game of rugby league was significant because of the inherent danger in a player being driven into the ground head first. the seriousness of the consequences if an injury occurs (s 5B(2)(b) of the Civil Liability Act) In Bujnowicz v Trustees Roman Catholic Church [2005] NSWCA 457 the risk of serious injury to children on the playing field was foreseeable if regular and systematic checks of the grounds for holes were not carried out. opportunities for, and cost of, eliminating the risk (s 5B(2)(c) of the Civil Liability Act) In Anderson v Mount Isa Basketball Association Incorporated (1997), the plaintiff tripped over some cables at the edge of the court while running backwards while umpiring a match. The association was found to be liable largely on the basis that instruction to the plaintiff referee to move sideways rather than run backwards could have been done without any great difficulty, expense or inconvenience. 10

11 the public utility of the defendant s conduct (s 5B(2)(d) of the Civil Liability Act) Where adequate supervision is provided and there is no unnecessary element of danger, then as a general rule the organising of sports or games which have an associated element of risk attached to them will not found a cause of action in negligence. In Gray v State of Queensland (2000), a student was injured while playing inter-school rugby league for his school. There was no evidence that the game was being violently played or that there were breaches of the rules such that the plaintiff or his team were at risk of injury. Thus, there was no breach of duty by the defendant. However, if the degree of risk is unreasonable, then liability will attach: In Ohlstein bht Ohlstein & 3 Ors v F & T Lloyd trading as Otford Farm Trail Rides [2006] the appellant, a five-year-old, was injured while participating in a horse trail ride. It was held that the organisers of a horse trail ride had been negligent by failing to ensure that the trail leaders had used a lead rope to control the appellant s horse, which was a simple, obvious and inexpensive way to have significantly reduced the danger. It was common knowledge, and therefore foreseeable, that any horse could make sudden and unexpected movements and that for a five-year-old and a beginner, she would not be physically adept and lacked the necessary perception or skill to control the horse if it departed from its expected behaviour. By failing to use a lead rope, the defendant, who owed a duty of care, did not act with reasonable care. 11

12 whether the danger from the activity was hidden or concealed In Staines v Commonwealth of Australia (1991) the plaintiff stepped into a hole which was covered by long grass while walking from a playing area controlled by the defendant, which while not a pathway was used regularly for access to and from the playing field. It was held that it was incumbent upon the defendant to institute and maintain some appropriate system of inspection by instructing the groundsmen who performed the mowing to be on the lookout for any dangerous conditions. Obligations of sport and recreation participants and officials Player against player 18. Players owe a duty of care to each other, albeit a reduced standard of care. In determining duty, while the courts will have recourse to the rules of the particular sport, particularly where they might relate to safety and the playing culture of the game, whether or not a player has been negligent will depend upon whether the defendant has failed to exercise reasonable care for their opponent s safety and the risks inherent in the game. s In Pollard v Trude [2008] the plaintiff was unable to recover damages when he was struck by a golf ball where the magnitude of the risk and the likelihood of its occurrence together with the common expectation of both the plaintiff and the defendant was that the latter would play the shot indicate that the response of a reasonable person in the circumstances would have been to take the shot. In McCracken v Melbourne Storm Rugby League Football Club and 2 Ors [2005] the probability of injury to a player from a spear tackle in a game of rugby league is significant, a fact which is recognised in the rules of the game and prohibited as a dangerous tackle, which meant that in executing such a tackle on the plaintiff, the defendants had breached their duty of care. 12

13 19. Participants will be judged by the standard of the ordinary reasonable player or participant. What are the relevant circumstances that need to be taken into account in trying to determine liability? A number of issues can be identified and they include: whether the sport was a contact or non-contact sport; Different standards apply to different sports. For example, in boxing the idea is to achieve bodily contact. In rugby and Australian Rules body contact is incidental but inevitable. In soccer, a basically non-contact sport, contact is also incidental but inevitable but at a lower level than either rugby or Australian Rules. In golf, contact should not occur whether the injury arise from a players instinctive actions carried out in the heat of the game or took place behind the play; what is the level of risk normally accepted by participants as inherent in the sport; what the actual level of risk was; the cost and availability of reducing the risk; whether the rules of the game have been broken by the defendant; and the purpose and social utility of the sport. Coaches, instructors, supervisors and medical staff 20. A sportsperson with supervisory responsibilities, and their club or association (if vicarious liability can be established) might be liable for: the negligent supervision of a player In Foscolos v Footscray Youth Club and Samuel Parker (2002) an inexperienced wrestler was seriously injured by a dangerous throw by his opponent which, if the coach had been properly supervising the wrestling contest and not talking with a fellow coach, would not have been allowed. 13

14 training or playing in extreme conditions (particularly the heat) This could also include training or playing during periods of high temperature or humidity without taking adequate precautions to ensure proper hydration of participants. Sports Medicine Australia has developed a checklist which sets out a number of considerations that sports organisations should take into account when considering whether to hold an event including: o o o o o o o air temperature and humidity time, duration and intensity of the event whether the participants have had preparation for exercise under extreme conditions the physical characteristics of the athlete to participate in extreme conditions the age and gender of the participants (young children and female participants are more susceptible to dehydration and heat stroke) any predisposed medical conditions of participants, and whether there are adequate hydration opportunities throughout the event for the participants inappropriate tactics A coach who encourages aggression, either expressly or implicitly, which results in injury to either their own player or an opposing player might leave themselves and the club open to liability asking or forcing a player to participate whilst under injury or supplying players with drugs, such as pain-killing injections or drugs to assist in recovery from injury, which facilitate further injury. 14

15 Omissions 21. A coach, referee/umpire, instructor or supervisor may also be liable for omissions, eg, for failing to give the right advice or taking the right precautions the swimming coach who fails to properly instruct a member of their squad on how to dive safely from the starting blocks may find themselves exposed to liability if the squad member is injured through the use of an unsafe technique. The relevant swimming association may also face liability for failing to issue appropriate warnings of potential dangers to coaches, instructors or supervisors; the weight-lifting coach who fails to advise a student on the correct way to lift to minimise the risk of back injury, a football coach who fails to advise a player on the correct way to tackle to minimise the risk of neck injury the ski instructor who fails to take proper precautions when teaching beginners the referee/umpire who fails to ensure that the players under their control are safe 22. In demonstrations or practice games involving the participation of the coach, instructor or supervisor and under-age or junior players, reasonable account must be taken of the difference in size, strength and skills of the players involved 23. The level of care required of the coach, instructor or supervisor is to protect the safety of the players or participants under their control. Where this does not occur, as measured against the standard of the reasonably competent coach in control of their side or the participants under their control, then they may find themselves exposed to liability. Officials and participants 24. Officials, and not necessarily club officials, owe a duty of care to participants. When the duty is performed negligently and damages result, an action may lie in negligence for recovery of damages. 25. It is often the responsibility of an official to determine the playability of the field. 15

16 This includes ensuring that a playing field is suitable for training purposes as well as for matches: In Wagga Wagga City Council v Mark Sutton (2000) NSWCA 34 a footballer was injured during a football match when he put his foot in a hole on the playing surface. It was held that the onus was on the occupier council to take reasonable care to ensure the ground was in a safe condition for play. 26. An official will not be liable if a player is injured but all necessary steps have been taken to ensure that the surface was as safe as could be reasonably expected for the training and playing of football, e.g. by the carrying out of regular inspections, particularly after storms or if the ground is in an area where acts of vandalism are common place: In Lanyon v Noosa District Junior Rugby League Football Club Inc (2001) QCA 163 the plaintiff, an unpaid junior football coach, was injured when he put his foot in a hole on the playing field during a training session. The defendant club leased the ground from Noosa Council and received a grant for ground maintenance from the council. In the weekend prior to the plaintiff s injury, the ground had been used for a farming expo and the Court of Appeal held that when all of the circumstances of the case were taken into account, the club, as occupier, had taken all necessary steps to ensure that the surface was as safe as could be reasonably expected for the training and playing of football. 27. It is certainly the responsibility of officials to ensure safe standards of competition and to penalise unsafe behaviour: s In State of New South Wales v R Smith (1996) (which is the sole Australian authority imposing a sports official liability for a player s injuries) the court held that a competent and experienced referee would have intervened to prevent a dangerous tackle. 16

17 28. Where there is little difficulty in terms of manpower or cost to minimise the effects of a known sporting danger, there should arguably be adequate emergency procedures in place for their treatment. Participants and spectators 29. Participants are expected to conduct themselves with some regard for spectators and fellow participants. The courts have recognised that a participant is expected to do their best to succeed and have consistently stated that the duty of care owed by a participant must be regulated by what is reasonable in the circumstances of each case. 30. What is reasonable in circumstances cannot be generally defined but it is suggested that the rules may often provide a guide as to what is acceptable conduct and what is not. In golf, for example, spectators (and participants) are required to accept that wayward shots by others on the course are part and parcel of the game within limits: s In Woods v Rogers (1997) the plaintiff, playing in a twosome, was injured when hit by a ball from a tee shot by the defendant playing on his own coming up from behind. The defendant claimed that because of the layout of the hole he had not seen the plaintiff and as he had been waived through by the plaintiff s partner, the court accepted he was entitled to assume that he was being called through on behalf of the group in accordance with golfing convention and to infer that both golfers would maintain an adequate lookout and be able to protect themselves from being hit. However cf Ollier v Magnetic Island Country Club Incorporated & Anor where the plaintiff suffered brain injury after being hit in the head by a tee shot by the second defendant in an Ambrose competition, The defendant was an occasional golfer who had played about once a year over the last 20 years (including four times on the defendant s course). The Court of Appeal dismissed the appeal, unanimously agreeing with the findings of Cullinane J who noted that the rules of golf provided that players should ensure that no-one is in a position to be hit by the ball or play until the players in front are out of range. The second defendant was aware of the rules of golf and was under a duty of care to the plaintiff but because of his defective lookout, he drove from the tee hitting the plaintiff and as a result he breached his duty of care. 17

18 Error of judgment may not amount to negligence 31. If the defendant has simply made an error of judgment which does not amount to negligence, then the plaintiff must fail. s In Wilks v Cheltenham Home Guard Motor Cycle and Light Car Club (1971), an English case, the plaintiffs were injured at a motorcycle scramble when the defendant lost control of his motorcycle and passed through the safety ropes and landed amongst the spectators. The English Court of Appeal held that in the circumstances the participant was entitled to try and win and that as the defendant s speed was not excessive and there were no other explanations for what caused the accident, the defendant was not liable. The court was of the view that there was no breach of duty owed by the participant to the spectator. However compare Payne and Payne v Maple Leaf (1949), a Canadian case, where ice hockey players were held liable when they started a fight and injured a spectator. The court was not prepared to accept that, in the stress of the circumstances, the players actions were reasonably regarded as being excusable. Rather, they amounted to a blatant disregard for the safety of the spectators. 18

19 (2) Occupiers' liability Introduction 32. An occupier of land or premises is one who has a degree of control and management over participants, spectators and visitors. Control and management amount to occupation and the occupier s duty is to take reasonable care to avoid foreseeable risk of injury to entrants. The issue is not one of ownership. 33. A person may own, but not be in control of premises or grounds and thus, may have no liability for the safety of the premises or grounds, but in each case this will be a question of fact. In Lanyon v Noosa District Junior Rugby League Football Club Inc (2001) the plaintiff, an unpaid junior football coach, was injured when he put his foot in a hole on the playing field during a training session. The defendant club leased the ground from Noosa Council and received a grant for ground maintenance from the council, so the club and not the council were considered occupiers and therefore liable. 34. In determining liability, the court will consider whether the defendant has a risk assessment system in place to identify and respond reasonably to hazards in its area of control or whether it took reasonable steps to ascertain the existence of dangers which might reasonably be suspected to exist. Obligations of occupier and event organiser to participant 35. An occupier is liable to a participant if they do not take adequate steps to ensure that the venue or area for the participants is safe. They owe a duty of care to participants to take all reasonable steps to reduce or eliminate real or significant risks which they know, or ought to know of, to ensure that the venue or area is as reasonably safe as possible. 19

20 In Lake Macquarie City Council v McKellar (2002) the plaintiff was injured while playing a social game of basketball when he tripped over a nail-rivet in the concrete surface of the basketball court, the court found the council liable as they failed to have in place a system of regular maintenance which probably would have located the nail. 36. Failure to ensure participant safety can happen in a number of ways, including: o Inadequate sporting surfaces s In Nowak v Waverley Municipal Council & Ors (1984), the plaintiff rugby league player successfully sued the League, the club and the defendant council when the player tripped over a protruding sprinkler and broke his leg. Notwithstanding the plaintiff was aware of the sprinkler, the League and the club owed a duty to the plaintiff because they had taken it upon themselves to organise and present the game. Consequently they were liable for the dangers which arose from their designation of that ground while the council was obliged to take positive measures to make the ground fit for the purpose for which it was hired. In Wagga Wagga City Council v Mark Sutton (2000), a footballer injured during a match when he put his foot in a hole on the playing surface. Here the court found that that the onus was on the occupier council to take reasonable care to ensure the ground was in a safe condition for play. However, compare Lanyon v Noosa District Junior Rugby League Football Club Inc (2001), the plaintiff, an unpaid junior football coach, was injured when he put his foot in a hole on the playing field during a training session. The defendant club leased the ground from Noosa Council and received a grant for ground maintenance from the council. The court held that when all of the circumstances of the case were taken into account, the club, as a volunteer organisation, had taken all necessary steps to ensure that the surface was as safe as could be reasonably expected for playing football. 20

21 o Negligent conduct of operations at the venue Some operational conduct may result in a danger being created by the occupier. In Albany Golf Club Incorporated v Carey (1987) a golfer was struck by ball hit from practice tee while playing the course. The club was found to be liable because for a relatively small cost, the defendant could have relocated the 10th green or restricted the hours for use of the practice tee. o Lack of verbal warnings or proper signage warning of a risk The duty of the occupier to warn entrants upon premises of the risks present in that place requires consideration in each case of whether the warning(s) were a reasonable response to a foreseeable risk and not the more stringent requirement of prevention would have prevented the injury that occurred Even if warnings are given, knowledge and appreciation of a danger is not always a sufficient answer to liability o Not providing sufficient protection for the personal safety of participants In the case of young participants, occupiers must be prepared to accept a much higher standard of care because children do not have the same appreciation of risk as an adult does. Where an occupier can expect a person to take responsibility 37. Situations where an occupier may be justified in not taking steps to guard against a real or significant risk and the plaintiff must take personal responsibility for what they do could include: where the risks are small and the circumstances were such that a reasonable person would think the possibility of a dangerous situation being created were only a mere possibility; 21

22 In Simms v Leigh Rugby Football Club Ltd (1969), an English case, the plaintiff was injured when he collided with a concrete wall adjacent to the football field. The court held that the injuries, on the balance of probabilities, were sustained as a result of the tackle rather than the collision with the wall. The court noted that as the ground complied with the by-laws laid down by the governing body of the game and the players accepted the risks associated with playing the game under the League rules at a ground approved by the League, then the occupiers would not be liable where the occupier was entitled to expect that adult visitors would be aware of the potential danger and accept the risks as part and parcel of that form of activity; In Clarke v Coleambally Ski Club [2004] the plaintiff, a member of the public, was injured while attempting a backward somersault from a rope swing attached to a limb of a tree on land controlled by the club and overhanging the river, affirming the finding of Cripps JA that the plaintiff knew the water was shallow and the manoeuvre was dangerous and that as a result he voluntarily accepted the obvious risk of physical injury where the risk was obvious, that is, there was no hidden danger, then an occupier is not obliged to give any warning because a reasonable adult person would understand the risk and be capable of making a genuine and informed choice; where the risk was obvious, that is, there was no hidden danger and the occupier had given a warning by placement of signs, the he/she has told participants that there are risks involved in the activities, provided protective clothing where necessary, and employed staff specifically trained to help participants, the defendant s failure to eliminate all risks will not of itself be demonstrative of a want of reasonable care; and 22

23 In Cafest v Tombleson [2003], a novice roller skater was injured while skating on the main rink, choosing not to use the beginners' rink. It was held on appeal that a reasonable person would have been aware of the risks inherent in roller skating and that the defendant by exhibiting warnings and providing safety equipment and areas for beginners to skate had acted as a reasonably prudent occupier should. lack of a link between the defendant s actions with the injury sustained by the plaintiff. Obligations of occupier to spectators and other non-participants 38. Since an event organiser hires a venue for competition purposes and is in control of the event, they may be defined at law as the occupier. As such, the event organiser is under a duty of care to make their premises reasonably safe for spectators and other nonparticipants, such as officials. 39. In considering what precautions are adequate, the organiser needs to take into account the knowledge of the ordinary spectator or official. Where an action is brought in negligence, the court will consider whether reasonable diligence would have enabled the alleged tortfeasor to have foreseen the accident which took place. s In Klyne v Bellegarde (1978), a Canadian case, the organisers were held liable when a spectator at an ice-hockey match was injured when struck by a hockey stick while standing in an aisle alongside the rink which had no protective guards. Spectators were entitled to be protected from obvious dangers associated with icehockey. In Langham v Connells Point Rovers Soccer Club Inc [2005], the plaintiff tripped over a rope strung across the entranceway to a park where soccer was being played, the court found that the suspension of a law slung rope the same colour as the ground across an entranceway involved the creation of a concealed hazard of an unusual kind, and which persons in the position of the appellant would not anticipate or expect. There was a foreseeable risk of harm which required the respondent club to warn people of the presence of the rope barrier. 23

24 But compare Murray v Harringay Arena Ltd (1951), an English case, where a sixyear-old boy was hit in the face by a puck, the court held that the arena in which the match had taken place was as safe as could be reasonably expected and the injury to the plaintiff was the result of a danger inherent in the sport itself which he accepted and against which the organisers could not reasonably have been expected to take precautions but this logic cannot be applied to arrive at a conclusion that spectators similarly accept a risk of being hit by a hockey stick. 40. To minimize exposure to liability, organisers of sporting events must take adequate steps to ensure that the event is well planned and that reasonable measures are in place to prevent injury and to arrange for treatment of any injury. It should be noted that the normal duty of care is increased once children become involved. The position of spectators who pay to enter 41. If a person can establish entry by contractual right, then the nature of the duty owed will turn on the express or implied terms of the contract of entry. Where there is no express term excluding the occupier from liability, there is an implied duty to exhibit `reasonable care and skill but it is not a duty of insurance against any risk of loss. Children 42. As noted above at [13], children are assumed to be less capable than adults in taking care of themselves. Therefore, those who are placed in a position of responsibility for children, directly or indirectly, must make their safety the foremost concern and carry a more onerous duty of care. 43. As a general principle, the responsibility for the safety of young children at least at a sporting venue must rest primarily with the parents. Coaches 44. Coaches should ensure that the child is developing the appropriate degree of physical fitness that the sport requires; in some sports (especially gymnastics), the coach must have the knowledge of anatomy and the injuries common to the particular activity. 24

25 Parents and volunteers 46. Parents and even volunteers can be liable in negligence if they fail to be vigilant where children are involved in sporting activities. In Macarthur Districts Motor Cycle Sportsmen Inc & Ors v Ardizzone [2004], the respondent, a boy aged 12, took part in a motocross race organised by the appellants (who were volunteers). The boy fell at a jump and was injured by the following rider. The court found that the appellants had breached their duty of care by failing to provide sufficient track marshals in appropriate positions to signal other riders. No one could expect a good assessment of risk and a good decision on whether to participate in a motocross race from a boy of 12". Local authorities 47. Local authorities may owe a duty of care to children where they are aware of potential situations which could lead to injury and they do nothing. Shellharbour City Council v Rhiannon Rigby& Anor [2006], a 13-year-old girl injured when riding down an unfenced starting ramp at a BMX track, the Court of Appeal agreed with Dunford J s finding in the Supreme Court that while it was unnecessary to fence off the whole track, the ramp and its proximity to the first hump would have constituted a foreseeable risk of injury to inexperienced riders and an even greater risk in the case of inexperienced ones such as the plaintiff, who was only 13 at the time. To such persons the ramp was an allurement. Fencing it would not have been disproportionately expensive and would have prevented the plaintiff from falling at such high speed. In failing to fence the start and the ramp, the defendants were in breach of their duty of care. 48. While age is an important factor insofar as assessing whether there will be liability towards an infant, this has to be balanced against any experience that the infant might gain from participation and whether it could be said that he or she had sufficient maturity to sufficiently assess the risks for themselves. The younger the child, the less likely it is that the child is able to properly assess the risk for themselves. 25

26 (3) Vicarious Liability Introduction 49. Vicarious liability is a form of strict liability, which means that the person/club held responsible for the acts or defaults of another may not have been personally at fault! 50. Liability arises by reason of the special relationship between the parties and is stated in terms of liability, not duty. Thus, a club who is an employer can be vicariously liable for the acts of its players or officials if they are employees, even without any wrongdoing on the club s part. In Kennedy v Narooma Rugby League Club, unreported [2001], a Narooma player broke the plaintiff s jaw in a late head high tackle, notwithstanding that the Narooma was an amateur club the court found that an employee relationship may be a voluntary relationship where someone obeys orders for the benefit of, in this case, the club and that although there were no regular payments made to the players, there were a number of benefits that they received such as jerseys, petrol money to travel to games, a player injury fund, meals after home games and player registration fees, that when taken as a whole were enough to form an employment relationship. Playing within the rules 51. A participant is expected to play according to the rules. It is to be expected that during the course of play there will be infringements but only up to a point. 52. An employer who encouraged rough play would, in appropriate cases, have to bear the consequences as a court is more likely than not going to find that the tort was so closely connected with what was authorized or expected of the player that it would be fair and just to hold the employer vicariously responsible. 26

27 s In Canterbury Bankstown Rugby League Football Club Ltd & Bugden v Rogers, it the club was vicariously liable for an assault committed during the course of a professional rugby league match. Although the assault was not expressly or impliedly authorised by the club, the risk that motivation by the coach could lead to the use of illegitimate means of winning was clear. The defendant was authorised to use force to stop the plaintiff s forwards and the possibility that this could lead to the use of illegitimate means to achieve this end was also clear. In Gravil v Carroll & Anor [2008], the England and Wales Court of Appeal considered that the fact that player had other full-time employment was irrelevant in holding the club vicariously liable for the player s actions in punching an opponent. He was employed to play rugby for the club and was doing so at the time of the incident. When he punched the claimant there was a melée of the kind which often occurs during rugby matches, notwithstanding that the whistle has gone. The melee was not an uncommon part of the game and not independent of it. In such a situation the court concluded that there was a very close connection between the first defendant s employment as a second row forward and his punching and injuring the claimant as a prop on the other side. This was supported by the terms of the defendant s contract which provided under the Schedule to the contract dealing with the Duties and Obligations of the Player that the player must not bring the game into disrepute and that he must not physically assault an opponent. The punch was thus a breach of an express term of the contract. The Schedule also set out the Duties and Responsibilities of the Club which expressly provided that the club may be vicariously liable for the acts of players during the employment, that is, while playing rugby for the club. Employer not always liable 53. An employer will not be liable if the act of the employee was a spontaneous act of retributive justice. That is, if the act of the employee is one of spite or revenge, then the employer will not, in those circumstances, be vicariously liable. Coaches and officials 54. Clubs may also be held vicariously liable for injuries sustained by players during training if it can be proved that the coach is not fully qualified and/or has subjected the player to overtraining, implemented an incorrect training routine or has required an injured player to train thereby aggravating an existing injury. Any argument that the 27

28 player wished to play will not negate the potential breach of duty by the coach and consequent vicarious liability of the club. However, where an existing injury is aggravated due to continued play, it may be argued that the player is guilty of contributory negligence since they agreed to play when they knew or ought to have known that play would aggravate the injury. A similar argument may well succeed if it can be proved that the player concealed their injury from officials. 55. Similarly, a club may be held vicariously liable for injury sustained by a player as a result of a club official failing to remove an obstacle, such as a sprinkler, from the field of play. 28

29 (4) Private Nuisance Limited to use or enjoyment of land 56. Private nuisance requires proof of interference with the reasonable use and enjoyment of land in which the plaintiff has an interest and the liability of a defendant only commences from that point in time when they knew, or are made aware, of the nuisance. 57. It extends to occupiers who are on premises by right of ownership, lease or exclusive occupation without title and is an area of law that can often catch the activities of a club. Limited range of defendants 58. The range of defendants are those who have some degree of personal responsibility or control over the land. This can be the creator of the nuisance, irrespective of whether they are the occupier or not, or anyone who authorises another to commit it. An occupier of land will also be held responsible for failing to take reasonable steps to rectify a dangerous state of affairs on their land. 59. Liability for nuisance is not strict or absolute liability. An occupier will not be responsible for a nuisance created without their knowledge, or means of knowledge, and consent. Nor will an occupier necessarily be liable if they take reasonable steps to bring the nuisance to an end once they learn of its existence. Interference must be unreasonable and substantial 60. In an action based on a claim in private nuisance, only unreasonable substantial and material interferences with the use or enjoyment of land by the defendant are actionable 29