Action Paintball v Clarke

[2005] NSWCA 170

CITATION:	Action Paintball v Clarke [2005] NSWCA 170
HEARING DATE(S):	Friday, 6 May 2005
JUDGMENT DATE:	25 May 2005
JUDGMENT OF:	Handley JA at 1; Tobias JA at 2; Basten JA at 3
DECISION:	The appeal should be allowed, the judgment of the District Court set aside and judgment entered in favour of the Appellant. The Respondent should pay the costs of the Appellant in this Court and in the Court below, but in respect of the former to have a certificate under the Suitor's Fund Act, 1951, if otherwise qualified.

CATCHWORDS:	NEGLIGENCE - duty of care owed to player in paintball game - whether evidence sufficient to establish breach of duty of care - whether evidence sufficient to establish causation - TRADE PRACTICES - whether breach of section 74(1) of the Trade Practices Act 1974 - implied warranty that materials supplied are fit for their purpose - whether evidence sufficient to find materials supplied for paintball game not fit for their purpose - whether evidence sufficient to establish causation
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) Suitor's Fund Act, 1951 (NSW)
CASES CITED:	Holloway v McFeeters (1956) 94 CLR 470 Rootes v Shelton (1967) 116 CLR 383
PARTIES:	Action Paintball Games Pty Ltd - Appellant Christopher Clarke - Respondent
FILE NUMBER(S):	CA 40431/04
COUNSEL:	R. A. Cavanagh - Appellant A. Lidden, M. Fraser - Respondent
SOLICITORS:	Curwood & Partners - Appellant Brydens Law Office, Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2413/02
LOWER COURT JUDICIAL OFFICER:	McLoughlin J

CA 40431/04
DC 2413/02

HANDLEY JA
TOBIAS JA
BASTEN JA

25 May 2005

ACTION PAINTBALL GAMES PTY LTD v CHRISTOPHER CLARKE

This is an appeal from the judgement of the District Court of 18 May 2004 which awarded damages to Mr Clarke for the injuries he suffered when he slipped during a game of paintball organised by Action Paintball Games Pty Ltd (Action Paintball). At the time of the accident it was raining heavily and the goggles supplied to Mr Clarke continually fogged up.

The District Court held that Action Paintball was liable in negligence and also liable under s74 of the Trade Practices Act 1974 for breach of the implied warranty that the materials supplied to Mr Clarke, including the goggles and the terrain, were fit for their purpose.

The issues for determination in the Court of Appeal included:

(i) whether Action Paintball breached its duty of care to Mr Clarke by allowing the game to be played in all the circumstances;

(ii) whether the goggles were fit for their purpose; and

(iii) whether the field on which the game was played was fit for the purpose for which it was used.

Per Basten JA (Handley and Tobias JJA agreeing):

Due to the paucity of evidence, Mr Clarke did not establish, on the balance of probabilities, that the conduct of Action Paintball in allowing the game to proceed was unreasonable and therefore in breach of its duty of care to the participants in the game.

Per Basten JA (Handley and Tobias JJA agreeing):

A finding that his goggles were in some manner not reasonably fit for the purpose for which they were supplied could only assist Mr Clarke if it could be inferred that he would have seen and avoided slippery ground, had he been able to see it. There was no relevant evidence which would justify “a reasonable and definite inference” to this effect. Absent such an inference, the state of his goggles was not shown to be causally related to the injury and thus, by itself, not a sufficient basis for establishing liability.

Per Basten JA (Handley and Tobias JJA agreeing):

The state of the field did not raise any separate issue from (i). It was not necessary to consider whether the second limb of s74(1) of the Trade Practices Act applied to the terrain.

CA 40431/04
DC 2413/02

HANDLEY JA
TOBIAS JA
BASTEN JA

25 May 2005

ACTION PAINTBALL GAMES PTY LTD v CHRISTOPHER CLARKE

Judgment

1 HANDLEY JA: I agree with Basten JA.

2 TOBIAS JA: I agree with Basten JA.

3 BASTEN JA: On 11 March 2000 the Respondent, Mr Clarke, attended with a group of friends and family members at a facility in Rouse Hill run by the Appellant. The business run by the Appellant was to provide the facilities and equipment for members of the public to play a game known as “paintball”. The players were organised in two teams, provided with overalls, a helmet and goggles and some form of “gun” which was loaded with a canister of paintballs. The objective of the players was to reach a flag across the playing field from the starting point. Each team sought to hit members of the opposing team with paintballs; once hit a player was out of the game.

4 Having received their equipment and been given some basic instructions, the group in which the Respondent was playing were given target practice on a training range. The training ground was reasonably flat although somewhat slippery, because there was heavy rain falling.

5 After the training session, the Respondent and his friends moved to a different field which he described as follows:

“We went from a field that was reasonably flat to one that had some more barricades on it, different types of structures to hide behind …
This one was sloping; it had more of a ravine type of appeal. It had wooden structures and grassy muddy areas.”

He was asked:

“Q: What was it like to play on?
A: It was very rough.
Q: And you told me that the earlier one was very slippery. What was it like as to the purchase of your feet, that area?
A: It was slippery and rough.”

6 No evidence was given as to how long the Respondent and his group were on the training field, nor for how long they had been playing on the second field before he suffered an injury to his right ankle.

7 The Respondent’s description of the incident was brief. His evidence was relevantly as follows:

“Q: I want you to describe for me please how the accident happened to you. What were you doing just before it?
A: I was – took some sort of shelter behind a wall that was about roughly my height. I – I begin to run towards another wall that about no more than probably six or seven metres away.
…
I slipped – slipped back, fell back onto my right ankle.”

He then found that he was unable to get to his feet by himself and needed to be carried off the field on a stretcher. He was taken to hospital by ambulance where it was discovered that he had sustained a fracture to the distal fibula.

8 The primary issue raised by the Appellant in these proceedings concerns the finding of liability made in the District Court.

The evidence

9 Apart from the medical evidence, the only evidence called in the District Court was that of the Respondent. His description of what happened was largely unchallenged. As the trial judge noted:

“It is without doubt that, on this day, the ground where the game took place was extremely wet and slippery and the plaintiff was aware of that.”

In addition, the Respondent gave uncontradicted evidence that the goggles he was required to wear started “fogging up” during the time they were playing on the training field and continued to fog up throughout the period prior to his injury. In the course of questioning as to the circumstances at the time the incident took place, the Respondent was asked:

“Q: And as you ran along what if anything could you see of the terrain over which you were running through the goggles?
A: Nothing.”

As noted above, he was able to describe the area in which he fell as being between two walls approximately six or seven metres apart, between which he was running.

10 The Respondent was not cross-examined in relation to his claim that he could not see the ground on which he was running. However, he was asked whether he was watching out for members of the “enemy” when running from one barricade to the other. He denied that and said that he was “looking towards the barricade”. How many steps he took before slipping and falling over is unclear. It was suggested to him that he slipped when he tried to slow down on approaching the barricade, but he replied:

“I didn’t get anywhere near the barricade.”

11 Other than the general description of the playing area, as set out above, there was no attempt to present any evidence as to the nature of the ground where the plaintiff fell. There was no evidence that he tripped on some obstacle he had not seen, or had put his foot into a concealed hole in the ground. Accordingly, there must have been a real issue as to whether his impaired vision had any causal connection with his fall.

Nature of claim

12 The statement of claim in the District Court pleaded an entitlement to damages pursuant to two causes of action. The first relied upon s.74 of the Trade Practices Act 1974 (Cth). Section 74(1) provides:

“74. Warranties in relation to the supply of services
(1) In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill and that any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied.”

The definition of services in s.4 of the Trade Practices Act includes “the use or enjoyment of facilities for, amusement, entertainment, recreation …”. No doubt both the field on which the game was played and the equipment provided by the Appellant for the purposes of the game would constitute a supply of services for the purposes of the first limb of s.74(1). However, no real issue arises in relation to that limb as the parties appear to have treated it as giving rise to the same questions as the general law claim of negligence.

13 In relation to the second limb, the claim was primarily put on the basis that the goggles constituted “materials” which were supplied in connection with the services and subject to an implied warranty that they would be “reasonably fit for the purpose for which” they were supplied. The complaint, in substance, was that the goggles readily fogged up in the humid atmosphere and as the players perspired.

14 In relation to negligence, the Respondent’s claim in the Court below appears to have focused upon a combination of factors, central to which was the heavy rain. The rain both rendered the field of play slippery and caused the goggles to fog up.

15 In response to the complaint concerning the goggles, the Appellant asserted that it had given clear instructions that where a player had any difficulty with his or her equipment, the proper course was to stop and raise a hand in the air. Players were told not to remove their goggles to clean them, presumably because an opponent might shoot them with paintballs whilst their eyes were exposed.

16 Whilst not denying such an instruction was given, the Respondent suggested it was ineffective in the context of the game because the referee simply had no time to minister to the needs of all players who were having difficulty with their goggles. In all the circumstances, the Respondent’s case was that the game should have been called off or, more probably, should not have taken place on that day at all.

Findings of trial judge

17 The first finding of significance made by the trial judge was in the following terms:

“The game continued and in the circumstances where the plaintiff, with impeded vision because of foggy goggles where he could not see the ground and, in carrying out the game was required to run from obstacle to obstacle or wall to wall, fell. Such falling I find [to have occurred?] because of his obscured vision, the slippery ground, the continuing rain and the game itself and the plaintiff’s participation in that game, which required him to look at obstacles, look at places to go, look at the opposing players and at the same stage look at the terrain and fire his own gun with goggles that were inadequate and insufficient for the purpose in those conditions.”

After referring to s.74 of the Trade Practices Act , his Honour found that the goggles “were not fit for the purpose for which they were supplied”.

18 The trial judge appears to have made a further finding for the purposes of s.74 concerning the nature of the field.

“I also find that the ground, including the slipperiness of the terrain, was also inadequate in that the game should not have taken place.”

It appears that the “terrain” was treated as constituting “materials supplied” in connection with the services, which terrain was not reasonably fit for the purpose for which it was supplied.

19 The trial judge made a finding in relation to the alternative claim based on breach of duty of care in the following terms:

“In my view the conditions were so dangerous the game should not have taken place; that there are obviously the social pressures because of it being the plaintiff’s brother’s bucks party but relying upon the implied warranty that it would be reasonably safe to do so. In my view the conditions were so deplorable that it was totally unsafe for the game to have commenced or continued and the game should have been abandoned. In my view, to provide goggles as they did to allow the game to continue and provide an environment in the circumstances that were so slippery and wet, was a breach of duty by the employer [occupier?].”

Cause of action under Trade Practices Act

20 It is convenient to deal first with the allegation that the goggles were not fit for the purpose for which they were provided, because of their propensity to fog up in the humid conditions. The specific complaint made by the Appellant in relation to this aspect of the matter was that the trial judge failed to identify properly the relevant purpose and, consequentially, failed to consider whether they were reasonably fit for that purpose. In relation to the question of purpose, his Honour found:

“The purpose for which they were supplied was the carrying out of this particular game in these particular circumstances and I find that the goggles were inadequate in those circumstances.”

21 A similar finding of inadequacy was made in relation to the ground, which was also treated as constituting “any materials” supplied in connection with the services, for the purposes of s.74(1) of the Trade Practices Act. Why the nature of the playing field was treated as falling within the concept of “materials” was not articulated in the judgment. On that view, in a provision relating to the supply of services, where the services are supplied on the premises of the supplier, almost anything other than the staff or contractors themselves would fall within that aspect of the provision. Because the definition of “services” in s.4 of the Act includes the provision of facilities, that approach may be doubted. However, for reasons noted below, it is not necessary to resolve this question.

22 Two criticisms may fairly be made of the conclusion reached by the trial judge in relation to the goggles. First, the reference to goggles being “inadequate” appears to be a restatement of the fact that they had a tendency to fog up and hence did not always permit clear vision. Reference to that fact is not sufficient to determine the question posed by the statute, namely whether they were “reasonably fit” for the relevant purpose. Secondly, to identify the purpose in specific terms by reference to the particular game and the particular conditions in which it was being played, distracts attention from the fact that the goggles may have been entirely appropriate for use in the game generally, and that the real difficulty arose from the weather conditions on the day in question. On the other hand, it is not necessary to accept the Appellant’s contention that the relevant purpose was “eye protection”. The relevant purpose was eye protection in a manner which allowed a player to maintain a reasonable degree of vision.

The causation issue

23 Each finding of the trial judge referred to the weather conditions: it is clear that they were a critical element in finding liability on each cause of action. The critical question identified by the Appellant in that regard is the causal connection between any breach of duty and the injury. Thus, if the fogging up of the goggles were said to cause the injury, it would be necessary to demonstrate a relevant causal connection, on the evidence. In the present case, that evidence was sparse indeed: see [4] above.

24 The obvious inference is that the Respondent slipped on wet grass, or possibly mud. He gave no evidence that he saw the ground on which he slipped, and the inference must be that he did not. His evidence was that he was not looking at the ground. There may have been a tenuous inference that he was not looking at the ground below his feet because, the goggles being foggy, he knew it would not have assisted. However, one would expect him to have said that, had it been the case. Accordingly, the sole cause of his slipping must be attributed to the condition of the ground, of which he was generally aware. A finding that his goggles were in some manner not reasonably fit for the purpose for which they were supplied could only assist him if it could be inferred that he would have seen and avoided slippery ground, had he been able to see it. There was no relevant evidence which would justify “a reasonable and definite inference” to this effect: see Holloway v McFeeters (1956) 94 CLR 470 at 480, (Williams, Webb and Taylor JJ). Absent such an inference, the state of his goggles was not shown to be causally related to the injury and thus, by itself, not a sufficient basis for establishing liability. The Trade Practices Act claim, based on the fitness of the goggles, should have failed.

The negligence claim

25 The case thus reduces to the question whether the game should have taken place at all in the weather conditions which prevailed. His Honour concluded that it should not, in the sense that it was unreasonable for the Appellant to permit the game to proceed in the conditions.

26 There are a number of considerations relevant to the reasonableness of the game proceeding. First, the Respondent was an adult; he turned 32 years of age on the day after the accident. Secondly, although the game was played in heavy rain, it was raining when he and his friends arrived at the Appellant’s fields and continued to rain during the morning. There was no significant change in the weather conditions. Thirdly, the fact that the ground was rough and slippery was appreciated by the Respondent, although he may not have been aware of how rough the ground was until the commencement of the second game. There is, however, no evidence as to the period during which the play had continued, prior to the accident.

27 On the other side of the balance, it was possible that the Respondent considered himself under some social pressure from his friends to continue playing, even if he himself had doubts about the safety of the conditions. The occasion of the activity was a “bucks party”, organised for his brother, who was shortly to be married. Nevertheless, this matter was not raised in his own evidence as a consideration and was not put forward in re-examination. The relevant cross-examination as to his understanding of the conditions and his thoughts about it is found in the following short passage.

“Q: It’s a matter of plain common sense that if you go out running around the fields trying to shoot people or avoid being shot that during the rain you’re likely to slip over. Don’t you agree with that?
A: It’s not the initial thought, no.
Q: Well, it was by the time you got out there, that there was a risk of slipping over. Isn’t that the case?
A: Yes.
Q: And the longer you stayed out there, because you played the first game and then went on to the second, the longer you stayed out there, the greater the risk was that you might slip over in those conditions, isn’t that true?

A: It’s not – it’s not one of the things that we were thinking about.
Q: Well, you were thinking about it during the first game when you – as you told your barrister it was slippery?
A: We noticed, yes.
Q: Yes, it was slippery, knowing it was slippery you kept on going, didn’t you?
A: I did.
Q: Knowing that you could slip over any moment; you kept on going, didn’t you?
A: Yes.
Q: And so long as you were running around on that field, that second field, there was a chance of you slipping over, wasn’t there?
A: There was, yes.”

The significance of this evidence is not that he appreciated the obvious, but that having done so, he was not discouraged from continuing and did not suggest he felt under any pressure to continue in circumstances where he would have preferred not to.

28 The principles applicable to duties of care owed in relation to a sport or recreational activity are, as noted by Kitto J in Rootes v Shelton (1967) 116 CLR 383 at 387, neither “new or mysterious”. That there may be risk of injury, of a form obvious to most participants, does not mean that no duty of care arises in relation to such risks. The fact that the participants are adults who choose to play for personal enjoyment does not relieve the organiser of the sport or pastime of a duty to exercise reasonable care in controlling the activity. Nevertheless, each of these factors is relevant to determining the standard of care and whether or not there has been a breach in particular circumstances.

29 Where, as in the present case, the risks are apparent and the need to exercise care is appreciated by the participants, wet conditions do not necessarily call for a game to be abandoned. Although there was evidence that other games were in progress on the morning in question, there is no evidence that any of them was abandoned, nor indeed that the game in which the Respondent was participating was abandoned after his injury. Evidence of abandonment might not have been of great weight, but its absence removes a possible basis for the judgment that the conditions were such that the game could not reasonably have been allowed to proceed by those in control, or would not have been engaged in by reasonable participants aware of the risks.

30 The Appellant invites the Court to disturb the conclusion of the primary judge on the basis that there was no evidence to support his Honour’s conclusion. In this case it was not apparent that his Honour had any great advantage over this Court in assessing the evidence. As already noted, the only relevant evidence was that of the Respondent; his Honour did not see the area where the incident took place, nor were there photographs to assist him. The evidence of the Respondent fell within a short compass and raised no questions of credibility. The difficulty with the Respondent’s case arises from the paucity of evidence, rather than the evidence which was given. In these circumstances, I am not satisfied that the Respondent demonstrated, on a balance of probabilities, that the conduct of the Appellant, in allowing the game to proceed, was unreasonable and therefore in breach of its duty of care to the participants in the game.

31 It is common ground that no different test applies to the first limb of s.74(1): accordingly, to the extent that the provision of facilities for recreation required that the Appellant act “with due care and skill”, it was not contravened on the evidence and there was, therefore, no breach of s.74(1) of the Trade Practices Act.

32 The appeal should be allowed, the judgment of the District Court set aside and judgment entered in favour of the Appellant. The Respondent should pay the costs of the Appellant in this Court and in the Court below, but in respect of the former should have a certificate under the Suitor’s Fund Act, 1951, if otherwise qualified.

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