Lanyon v Noosa District Junior Rugby League Football Club Inc

[2001] QSC 431

SUPREME COURT OF QUEENSLAND

File No 108 of 2001
[2001] QSC 431

BETWEEN:

EDWARD JAMES LANYON

Plaintiff

AND:

NOOSA DISTRICT JUNIOR RUGBY LEAGUE FOOTBALL CLUB INC.

Defendant

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:

16 November 2001

HEARING DATES:

16 – 18 October 2001

ORDER:

The plaintiff’s action is dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORSEEABILITY OF DAMAGE – PARTICULAR CASES – DUTY OF OCCUPIER – where plaintiff ruptured achilles tendon when foot went in a hole in playing field whilst coaching rugby league – where expo had been held on field the previous weekend – where there was a practice the ground be inspected after the expo prior to practice – whether the defendant had breached it’s duty of care.

Bartels v Bankstown City Council [1999] NSWCA 129

COUNSEL:

J A Griffin QC with G D Garrick for the plaintiff.

T Matthews for the defendant.

SOLICITORS:

Boyce Garrick Lawyers for the plaintiff.

Quinlan Miller & Treston Solicitors for the defendant.

1. On the evening of Thursday 4 August 1994, the plaintiff ruptured his left achilles tendon while coaching an under 14 rugby league team.  The defendant is a volunteer organisation which fosters rugby league football, organises teams and participates in competitions.  It accepted the plaintiff to coach the team of which his son was a member.  The plaintiff became an accredited level one coach;  accreditation was a term of the defendant’s acceptance of the plaintiff as a coach.  The plaintiff was not paid for his efforts.

1. The defendant leased the ground on which the training session was being conducted from the Noosa Council, which gave it a grant to maintain the ground.  Relevantly for present purposes, the defendant was the occupier of the ground and under an obligation to the plaintiff to take reasonable care to ensure the ground was safe for use. 

1. During the course of the training session the plaintiff fell.  His case is that he did so because his foot went into a depression in the ground which ought not have been there had the defendant discharged its obligations to him.  The defendant denied that there was any depression and that it was in breach of its obligations to the defendant.

1. Not surprisingly, given the lapse of time, there are different versions of the activities the plaintiff and team were engaged in when the plaintiff fell.  The plaintiff’s evidence is that he and one or two others were running the ball up for the team which was going through a defensive drill, although other witnesses have different versions of what was going on.  I am inclined to accept the plaintiff’s version, although from the point of view of determining liability I do not think a great deal turns on precisely what activity was going on when the plaintiff fell.  The team members were at first amused by the plaintiff’s fall.  He limped to the sideline and the session was completed under the direction of the team captain.

1. The plaintiff fell as a consequence of putting his foot into an irregularity or hole in the surface of the ground.  He had a look at the hole after he fell and again at the end of the training session.  He described it as being “at least fifteen inches long, three inches deep” and the “width of a basketball…it looked like it had been pounded in at the ground…it had a grass top on, but the grass top – the bottom of the hole was flat”.  It may be noted that there had been training on the Tuesday night earlier that week.  That was a busier training night than the Thursday and the plaintiff’s team trained on a different part of the ground.

1. Colin Broomham, the stepfather of a member of the team, was assisting the plaintiff in the training as he habitually did.  When the plaintiff fell he went to assist him and saw the hole which was about “one foot in diameter, about two or three inches deep”.  He was not able to say whether it appeared freshly created or not but said that it wasn’t there the week before.  It had been filled on the following Tuesday.  The defendants teams trained on Tuesday and Thursday. 

1. The son of Mr Ken Christensen, the president of the defendant at the relevant time, was a member of the plaintiff’s team.  He saw the fall: “[the plaintiff] fell over in what he believed was a hole but we couldn’t see any hole there”.  His evidence then continued:-

“Did you go and look at the place at which Mr Lanyon had fallen? No we didn’t.

Had he said anything to you about there being a hole?  No he didn’t after that at all.  He didn’t say anything to the team at all, I don’t believe”.

1. The plaintiff accepted that he had not told anyone at the club that he had put his foot in a hole but stated that he thought it was common knowledge and “that they knew”;  it would be surprising if “they” did not.  It was however some time before the plaintiff told Mr Christensen that he was making a claim and Christensen was upset when he was told.

1. On the weekend prior to the plaintiff’s fall a ‘Farming for the Future’ exposition had been held on the ground.  This was an annual event.  It involved the erection of marquees, the display and operation of various items of equipment, the movement of vehicles involved in erecting and taking down the displays and a range of activities including static displays and the operation of machinery.  It attracted crowds of people who moved about the area.

1. Mr Christensen gave evidence of a practice that he and a representative of the organisation responsible for the organisation of the Expo would inspect the ground when everything was packed up and gone.  This was not least to ensure the ground was ready for training on the following Tuesday night.  It seemed that a major focus of the inspection was to make sure that tent pegs had been removed.  He was asked:-

“…did you ever observe any holes or depressions left in the ground as a result of any of the exhibits or exhibitors’ activity?” and answered “No, none at all”.

1. Rodney Bevan was retained by the defendant to mow the ground.  The frequency was determined by the season and the rate of growth of the grass, but he mowed the ground regularly, at least monthly.  He paid attention to the state of the surface, which was usually good, not least to avoid damage to his equipment.  He normally mowed the ground shortly before the Farming for the Future exposition but did not know when he next mowed it in 1994 after the particular exposition, in what was a slow growing season.

1. As a precondition to his accreditation as a level one coach, the plaintiff attended at a training course.  The course involved instruction as to the need for concern for the safety of players, making sure that equipment such as padding for goalposts, etc. was in position.  Reference was also made to the need to inspect the grounds, illustrated by stories of experiences with green ants nests or holes in the ground.  The plaintiff, who was apparently unaware that the Expo had been conducted there on the previous weekend, did not carry out any particular inspection on the night of the 4^th of August.

1. I am not prepared to infer that the presence of a hole such as that described by the plaintiff and Mr Broomham was, without more, a breach of the defendant’s duty of care owed to the plaintiff.

1. The evidence is that generally speaking the surface of the playing area was in good condition.  Although the plaintiff’s fall occurred in an area where there was less activity associated with the Expo than in other areas it is tempting to conclude, and I think the probability is, that the hole was associated with that event.

1. As previously mentioned Christensen and a representative of the organisation responsible for the organisation of the Expo had inspected the ground after that event to see that it was in a fit state for Tuesday night’s training.  They did not find the hole.  There was no evidence that the hole had been discovered or caused any difficulty at training on the Tuesday night.  Apparently no one saw the hole on the Thursday night until the plaintiff fell.  It was not apparent to those present who chose not to go and look at it after the fall.  The defendant required coaches to be accredited.  Accreditation involved instruction in player safety, including the need to see that the playing area was safe for training, which involved an inspection of the ground.

1. In my view the system referred to in the previous paragraph was, in the circumstances, an adequate response to the risk of a hole in the playing surface endangering the users.  The fact that the hole escaped attention does not of itself mean that the system in place was not followed or was deficient.  The defendant was not the plaintiff’s insurer, it did the best it could in the circumstances, c.f.  Bartels v Bankstown City Council [1999] NSWCA 129.

1. It is necessary to turn to the assessment of damages.  The plaintiff’s achilles tendon was ruptured as a result of the incident of 4 August 1994.  He went to a general practitioner on 11 August and an ultrasound on the 12^th showed a thickening of the achilles tendon but no evidence of a tear.  He did not improve, however, and on 8 October 1994, he was complaining of a continuing limp and discomfort in the left achilles tendon and was referred to Dr Peter Winstanley, an orthopaedic surgeon.  On 15 December 1994, Dr Winstanley operated to reconstruct the tendon. 

1. The operation was successful but the plaintiff was left with a limp as a consequence.  He has a permanent partial disability of the order of 15 percent of his lower left limb.  Owing to degeneration and a probable repetitive succession of exertions or strains the plaintiff was, in any event, at some risk of a failure of the tendon. 

1. The plaintiff has degenerative changes to his upper lumbar spine, hypercholesterolaemia and hypertension.  These are unrelated to the incident of 4 August 1994, but obviously effect his functioning.

1. The plaintiff has developed a major depressive disorder.  This should respond to appropriate psychological and psychiatric intervention including the use of antidepressants, but the plaintiff has been reluctant to accept such treatments to date.  Doctor Varghese considers that in so far as the plaintiff has permanent disability consequent on the incident of 4 August 1994, impacting on his employability, in the form of mood swings, it is of the order of two and a half percent.

1. The plaintiff was born on 11 July 1946.  He was retrenched from his employment in the printing department of Fairfax Newspapers in Sydney.  He took a redundancy package and came to the north coast.  He and his wife took the management rights of a block of units at Noosa which they subsequently sold and used part of the proceeds to buy a house.  The plaintiff, who has been a keen rugby league player and was always interested in sport, began to work at a sports store, owned by a man named Wire, at Noosa Junction.  On 2 January 1993 he purchased a sports store, operated by Wire under a lease, at Nambour.  A claim to recover the capital loss and other losses associated with the sale and conduct of the business as damages in this action was not persisted with at the trial.  The question however remains peripherally relevant to the determination of the plaintiff’s loss of income at least until he sold the business on 2 November 1994.  The plaintiff sold the business at a loss, so that he could have the operation on his achilles tendon.  The business would not have been financially viable if the plaintiff had to rely wholly on employees to operate it.

1. In fact, although the plaintiff seems to have been oblivious to the true state of affairs, the business was in any event in financial difficulties.  It initially operated at a loss under the plaintiff and then seems to have moved to a small profit.  The plaintiff’s weekly drawings were against capital rather than profit.  It may be that wages increased after the plaintiff’s injury but I do not understand how that is now said to be a component of his damages claim.  Put shortly, the long term profitability of the business was, at best, dubious and the incident of 4 August 1994 was at most a minor contributor to the losses reflected in the sale.

1. Had the plaintiff not been injured, after he no longer operated the sports store business he would have, in all probability, worked in a casual part-time capacity in a sports store competing in the open labour market.  The same may be said of the future.  The contingencies which have to be taken into account include his unrelated health condition, the limited relationship between the incident of 4 August 1994 and his psychological condition and the risk, albeit it slight, of an achilles tendon problem in any event.

1. It may be accepted that in the period leading up to and after his operation, he was dependent on others to satisfy needs consequent of his injury.

1. I would assess the plaintiff’s damages as follows:-

1.          General damages  $ 20,000.00

Interest  $ 1,250.00

2.         Past economic loss  $ 40,000.00

Profits in excess of loss therefore no interest.

Past superannuation loss  $ 2,400.00

3.         Loss of future earning capacity  $ 25,000.00

Superannuation loss  $ 2,250.00

Special damages (admitted)  $ 6,651.18

Interest  $ 693.71

Future expenses (agreed)  $ 600.00

4.         Past voluntary care  $ 3,840.00

Interest          $ 384.00

Total  $ 103,068.89