Latrobe Council v Williams
[2007] TASSC 77
•27 September 2007
[2007] TASSC 77
CITATION: Latrobe Council v Williams [2007] TASSC 77
PARTIES: LATROBE COUNCIL
v
WILLIAMS, Shane Leonard
LATROBE FOOTBALL CLUB INC
EAST DEVONPORT FOOTBALL CLUB INC
v
WILLIAMS, Shane Leonard
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 2/2007
FCA 3/2007
DELIVERED ON: 27 September 2007
DELIVERED AT: Hobart
HEARING DATE: 29, 30 May 2007
JUDGMENT OF: Crawford, Evans and Tennent JJ
CATCHWORDS:
Torts – Negligence – Essentials for action of negligence – Standard of care – Particular persons and situations – Other cases – Australian rules football – Ankle injury to football player – Whether reasonable care taken to avoid risk of injury – When stepping on cover of irrigation pit – Duty of home and away club to inspect – Duty of ground owner to maintain ground.
Williams v Latrobe Council [2007] TASSC 2, reversed in part.
Aust Dig Torts [49]
REPRESENTATION:
Counsel:
Appellant Council: M W Thompson SC, S B McElwaine
Appellant football clubs: T D Cox, K Somann-Crawford
Respondent: D J Porter QC, D Cooper
Solicitors:
Appellant Latrobe Council: S B McElwaine
Appellant football clubs: Hunt & Hunt
Respondent: Ogilvie Jennings
Judgment Number: [2007] TASSC 77
Number of paragraphs: 53
Serial No 77/2007
File No FCA 2/2007FCA 3/2007
LATROBE COUNCIL v SHANE LEONARD WILLIAMS
LATROBE FOOTBALL CLUB INC AND EAST DEVONPORT FOOTBALL
CLUB INC v SHANE LEONARD WILLIAMS
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
EVANS J
TENNENT J
27 September 2007
Orders of the Court
Appeal of Latrobe Council dismissed.
Appeals of Latrobe Football Club Inc and East Devonport Football Club Inc upheld.
Judgment against Latrobe Football Club Inc and East Devonport Football Inc set aside.
Order providing for contribution as between the defendants set aside.
Order that Latrobe Football Club Inc and East Devonport Football Club Inc pay the plaintiff's costs of the action in relation to liability set aside and in its place ordered that the plaintiff pay the costs of the action of the Latrobe Football Club Inc and East Devonport Football Club Inc.
Serial No 77/2007
File No FCA 2/2007FCA 3/2007
LATROBE COUNCIL v SHANE LEONARD WILLIAMS
LATROBE FOOTBALL CLUB INC AND EAST DEVONPORT FOOTBALL
CLUB INC v SHANE LEONARD WILLIAMS
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
27 September 2007
By an action, the respondent sued the Latrobe Council ("the council") as the first defendant, the Latrobe Football Club Inc ("LFC") as the second defendant, and East Devonport Football Club Inc ("EDFC") as the third defendant. He claimed damages arising out of serious injuries to his left ankle which were suffered when playing Australian rules football for the EDFC reserves team on 27 March 2004. The match was played against the LFC reserves team on the oval at the Latrobe Recreation Ground. The LFC was the home team for the purposes of the roster of the Northern Tasmanian Football League ("NTFL"). The council was the owner of the ground. The injuries were caused when the respondent's foot landed on the cover of an irrigation outlet that was set in the ground.
Following a trial as to liability only, it was found by a judge that all three defendants were liable in negligence for the respondent's injuries, that the council's share of responsibility was 85 per cent and that between them, the two clubs were responsible for the other 15 per cent, without distinguishing between them, there being no need to do so because they had the same insurer. The respondent recovered judgment against the defendants for damages to be assessed. It was ordered that the council contribute 85 per cent of the assessed damages, that the clubs contribute 15 per cent of the assessed damages and that the defendants pay the respondent's costs of the action in relation to liability.
All of the defendants appealed to this Court. In essence, they attacked the findings that they breached the duty of care they owed to the respondent.
Few of the facts remain in dispute. I will state the material ones in accordance with the findings of the learned trial judge.
On the evening of Thursday, 25 March 2004, the coach of the EDFC reserves requested the respondent to play against the LFC reserves on the following Saturday, 27 March. The team was short of players and the respondent agreed to do so. He was 36 years old and an experienced footballer. Between the ages of 17 and 32, he played senior football until he retired from playing because of work commitments. Thereafter, he only played in a couple of practice matches. He had maintained his general fitness by jogging, surfing and skateboarding, but did not regard himself as "footy fit" on the day of the game. However, the state of his fitness played no part in causing his injuries.
Pursuant to the Local Government Act 1993, s29, the council established the Latrobe Sport and Recreation Controlling Authority "to manage and administer the affairs of the Latrobe Recreation ground". For the purposes of the litigation, no distinction need be drawn between the controlling authority and the council.
The uses to which the ground was put had remained unchanged for many years. It was used for cricket in summer and football in winter. During the football season, it was used every second Saturday for the under 19s, the reserves and the seniors matches in the NTFL roster. It was also used for training four nights a week and for school football matches. Regarded as an excellent ground, it was often used for finals. It was also used for a sports carnival at Christmas time. A horticulturalist, Mr Tuthill, was responsible for the maintenance of the ground and, in particular, its playing surface.
On 1 July 2003, the council leased the buildings at the ground to the LFC for four years. The football oval was not part of the demised premises. However, the lease required the council to permit the LFC to use "the sporting facilities" and the council agreed to provide "all ground care and maintenance for the sports arenas and facilities as per service agreement". The lease made the council "solely responsible for the main area surfaces, carrying out all the broadleaf spraying, top dressing etc". Mr Tuthill, as team leader for the council's parks and reserves, and the groundsmen, were responsible for the upkeep of the ground.
The council imposed an obligation on the LFC, in common with other clubs and organisations that used the ground, to complete a "facility inspection sheet" at least 24 hours before the ground was used. The facility inspection sheet listed 76 matters that had to be checked. It provided a column "OK", a column "NA", and a column "Comments" to be completed with respect to each of the 76 matters. After completion, it was to be sent to the council.
The NTFL organised football matches in the north and north west of Tasmania. The roster was drawn up so that all clubs had the same number of home games. The Latrobe Recreation Ground was the home ground for the LFC. Girdlestone Park at East Devonport was the home ground for the EDFC. The NTFL expected the home club to ensure that the ground was properly marked out and in a safe condition. At the end of every match, a "match envelope" was dispatched to the manager of the NTFL. Into the envelope were placed the records of the match, the score, team sheets, umpires' voting lists and the like. Prior to the start of the 2004 football season, the NTFL made new insurance arrangements for all the teams playing in the league. As part of the arrangements, the clubs were required to comply with a national risk protection program, which required them to complete a written Match Day Checklist prior to the start of the first match of the day. It contained eight questions about the field of play that had to be answered by ticking a box for "yes" or "no". The Checklist had to be signed by a representative of each of the clubs playing at the venue that day and put in the match envelope. The day of the respondent's accident was the first upon which such a Checklist was required to be completed.
Witnesses who knew the Latrobe ground spoke highly of its playing surface and general condition. Each week it was mowed, usually on a Thursday or a Friday, ready for Saturday's game. The procedures for maintaining and caring for the ground had remained unchanged since well before 2004.
Five irrigation outlets were set into the surface of the oval. A large one was in the centre and the other four, which were smaller, and which were of about equal size to each other, were about 20 metres towards the wing from the forward/back pockets. Each of the four smaller outlets contained an irrigation tap at the bottom of a rectangular hole that had been cut into the playing surface. The hole measured about 200mm by 400mm and was about 350mm deep. At the bottom of the hole, around the tap, was a cement sheet box, which had no top or bottom. Around its upper edge was a ledge or lip, about 12mm high. The top of the box was closed off by placing a flat, thin metal lid over it, held in place by the ledge or lip. A hole in the middle of the lid allowed the insertion of a finger to facilitate its removal. On top of the lid was placed a piece of wood, about the same length and width as the lid and about 20mm thick. A thin layer of soil was placed on top of the piece of wood and finally, a wooden block, about 395mm long and 190mm wide, with a thickness of about 90mm, was placed on top. Three sides of the wooden block, including its uppermost surface, were covered by a 5mm thickness of a green carpet-like material that was referred to in evidence as Astroturf. The wooden block and its carpet were collectively referred to in evidence as the cover. Around the edges of the cover, soil was packed to prevent it moving laterally within the hole. Ideally, the top of the cover would sit flush with the soil of the playing surface, although lower than the top of the surrounding grass, which was mowed to a height of about 27mm in the football season, and about 17mm in the cricket season.
During the cricket season, the covers might be removed and the taps used to water the oval several times a week, possibly as many as 20, but in the football season the ground did not need to be watered, and there was no need to lift the covers at all. The 2003/2004 cricket season ended about three or four weeks before the first NTFL football matches on 27 March 2004. The cover, upon which the respondent fell, had not been lifted for about five or six weeks prior to that day.
A major issue at the trial was whether the cover, upon contact with which the respondent suffered his injuries, was flush with the surface of the surrounding soil or not and, if not, whether his injuries were caused as a result of his foot landing partly on the surrounding soil and partly on the cover at a lower level than the soil.
The accident occurred during the third quarter of the match. The respondent was in the right forward pocket, when viewed from the other end of the ground. The play was on the wing on his side of the ground. The ball was kicked in the air in his direction and he ran forward and to his left. When the ball was near him, he jumped with his hands raised to about, or just above, head height, in an endeavour to mark (catch) the ball. He failed to hold the mark and the ball fell to the ground. The learned judge found that as he came down onto the ground, his foot landed, at least partly, on the cover of the irrigation outlet, and he fell. He suffered serious fractures in his lower leg.
The most common of ankle injuries that come from rolling the ankle are known as inversion injuries. Most people have rolled their ankle in that way. The respondent's injuries resulted from an unusual eversion, a rolling of the ankle in the opposite direction to what is common, and they were caused because of the different heights of the surrounding soil and the top of the cover. An eversion injury to the ankle is an uncommon event. It can occur if the foot lands on even ground at a sufficiently acute angle and with a force strong enough to overcome the natural tendency of the ankle to invert. The angle of contact may dictate an eversion, rather than an inversion. But the ankle is unlikely to adopt a sufficiently acute angle to result in an eversion injury without a reason, which is likely to be either an unpredictable landing on an even surface due to an immediately preceding and unexpected event, such as a mid-air tackle or mid-air decision to change the direction of travel on landing, neither of which occurred here, or the pressure created by unexpectedly landing on an uneven surface. The latter was found to be the cause of the respondent's eversion injuries.
The cover was admitted into evidence as an exhibit. Notwithstanding the Astroturf on it, the upper surface was quite hard. If the top of the cover was set any distance below the level of the surrounding soil, there would be a height differential between two hard surfaces. The learned judge accepted the evidence of an orthopaedic surgeon, Professor Einoder, that such a differential need only be half a centimetre for an eversion injury resulting from landing on an unpredictable surface. There was conflicting evidence about the comparative heights of the two surfaces. Some of the conflict may have resulted from the grass above the surface of the soil obscuring vision of the soil. There was evidence in favour of the appellants that suggested that the top of the cover was level with the surface of the surrounding soil. Evidence most favourable to the respondent was that the cover was about one or two inches (2.5 – 5 centimetres) below the surrounding soil. The learned judge did not make a precise finding as to the height differential, other than that the top of the cover was at least half a centimetre below the surrounding soil. It is apparent that his Honour did not consider it necessary to go further than that, having regard to his acceptance of Professor Einoder's evidence. However, it appears likely that his Honour accepted the evidence of the respondent's brother, Darren Williams, that on the day after the accident, he inspected the scene, got down on his hands and knees, "got [his] head down as close as [sic] and had a look at the lay of the land" and saw that the cover appeared to be lower than the surrounding ground by about a centimetre or two. His Honour found that Darren Williams was a careful witness and the only one who made a careful examination of the relative levels of the top of the cover and the surrounding soil.
The learned judge found that it was more probable than not that the respondent suffered his injuries because his foot landed awkwardly, partly on the top of the cover, and partly on the surrounding soil, and that the height differential was sufficient to cause the injuries. None of the findings I have mentioned were attacked by a ground of the appeals.
Other findings not challenged were the following. As the cover had not been lifted for five or six weeks prior to the accident, and during that time the grass had been allowed to grow around it undisturbed, except for weekly, or almost weekly, mowing, the growth made it very difficult to discern whether the top of the cover was flush with the surrounding soil unless a very close inspection was made. It is obvious that because the bottom of the box sat on the soil at the bottom of the pit, a thin layer of soil was spread on top of the lid on the box, or on top of a piece of wood placed on top of the lid, the cover was then placed on top of the piece of wood or thin layer of soil, and soil was packed down around the sides of the cover, it would have been very difficult to position the lid, the thin layer of soil, the piece of wood and the cover, and reposition all those things each time they were removed to irrigate the ground, so that each time the top of the cover was exactly flush with the surrounding soil. Further, it would be very difficult to ensure that after each positioning and repositioning took place, the cover would remain in exactly the same place even if it was flush with the surrounding soil. Rain might well seep down the sides into the pit and alter the position and density of the soil in the bottom of the pit and/or move part of the layer of soil thinly spread on top of the piece of wood or lid. Further movement might occur if a period of warm weather followed a period of rain or if a tractor was driven over the cover and so on.
It was noted by the learned judge that when, in summer time, he viewed one of the covers, but not the one on which the respondent fell, its top was clearly a substantial distance below the level of the surrounding soil. What his Honour saw was part of the evidence. Evidence Act 2001, s54. Because over 2½ years had passed since the accident, the view had limited probative value, but it demonstrated that despite what may have been good intentions and efforts to maintain appropriate levels for covers, achievement of the ideal has not been possible at all times.
In accordance with the statement of principle of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44, the learned judge held that a duty of care was owed to the respondent by the appellants and that a reasonable council and a reasonable football club, in the positions of the appellants, would have foreseen that carelessness on their part might be likely to cause damage to the respondent. Concerning the content or standard of that duty of care, the learned judge adopted as the lodestar to guide judicial determination the often quoted passage from Mason J's judgment in Wyong Shire Council v Shirt at 47 – 48. His Honour then stated his finding as to foreseeability of risk:
"Australian Rules football is a fast moving contact sport, frequently requiring players to jump in the air whilst running forward at considerable speeds. It is obvious that a smooth grass playing surface is necessary to ensure that players do not injure themselves whilst engaged in such activity. Dr Einoder said that fractures involving the ankle joint are not uncommon on the football field, although they usually occur on the lateral side. A reasonable council and a reasonable football club would have foreseen that if the top of a cover is not flush with the surrounding soil, a hard edge height differential will be created which will give rise to the risk of injury to a footballer. That risk is more than foreseeable. It is obvious. It was obvious to Mr Tuthill, for he said that care was taken to ensure that a height differential was not created. It must have been obvious to the council because its Facility Inspection Sheet asks if the 'water tap holes [are] covered and padded.'
I accept that perhaps it was not obvious that a footballer was at risk of suffering an eversion injury as serious as that suffered by the plaintiff, but the existence of even a small hard edge height differential made it foreseeable that a footballer was at risk of suffering from some kind of ankle injury if he landed on that differential, as did the plaintiff."
A literal reading of the second of those paragraphs suggests error, for it cannot validly be said that the mere existence of a small hard edge height differential made it foreseeable that footballers were at risk of suffering some kind of ankle injury. For someone to foresee that risk, he or she would need to know of the difference in height as well. However, when read in conjunction with the first paragraph, it is clear that the learned judge did not intend that literal meaning and the point of the second paragraph was merely to make clear that it is not the specific injury that was suffered by the plaintiff that must be foreseeable, nor the precise way in which the harm suffered was brought about, but the happening of injury in a general way. "The exact course which events take can seldom be foreseen in detail". Thompson v Bankstown Corporation (1953) 87 CLR 619 at 630. "It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable consequences of the wrongful act." Haynes v Harwood [1935] 1 KB 146 at 156. And see Chapman v Hearse (1961) 106 CLR 112 at 120; Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 402. It was made clear by the learned judge in the first of those two paragraphs that what a reasonable council and a reasonable football club would have foreseen was that a risk of injury to a footballer would arise if the top of the cover was not flush with the surrounding soil, resulting in a hard edge height differential. As his Honour said, such a risk was obvious if those circumstances existed, notwithstanding that to the knowledge of all those who gave evidence about the matter, the existing irrigation outlet covers at the ground had not caused, or been suspected of causing, an injury in the past.
The council's appeal
It was claimed by the council that the learned judge erroneously held in the second of those paragraphs that the standard of care owed by the council was to ensure that there was no "small hard height differential". However, that is not what was held. As I have just pointed out, in the first of those paragraphs, the learned judge found, correctly in my view, that a reasonable council and a reasonable football club would have foreseen that if the top of a cover was not flush with the surrounding soil, a hard edge height differential would be created which would give rise to the risk of injury to a footballer. As his Honour said, such a risk was obvious. The critical questions that remained to be decided, so far as the council was concerned, were what steps would a reasonable man (or council) have taken by way of response to that risk and whether the council failed to take those steps, with the consequence that the respondent suffered his injuries.
The evidence of the groundsman at East Devonport's Girdlestone Park, Mr Roberts, and the curator at the Devonport oval, Mr Fiddler, caused the learned judge to conclude that the council breached its duty of care. Their evidence was briefly summarised in his Honour's reasons, but because of its importance, I will provide more detail. What they said was not contentious. They described what they did at their own grounds. It was the conclusion reached by the learned judge from that evidence that has been challenged by the council.
Girdlestone Park was the home ground of the EDFC. Its maintenance and upkeep had been Mr Roberts' responsibility for 32 years. For all of that time he followed the same procedures with regard to one large irrigation outlet in the middle of the playing area. (There was one other outlet but it was outside the playing area.) His evidence was that the ground was used in the summer months for cricket and Little Athletics and in the winter for football. The irrigation outlet in the playing surface was about 750mm square and about 390mm deep, with an irrigation tap at the bottom of the pit, which was lined with a cement box. On top of the box was placed a steel plate and on top of that a cover made of a block of wood covered in a green carpet-like material. For safety reasons, he painted a white cross on the cover so that its presence was more obvious to users of the ground. He said that cricketers used the hole under the cover to hold their hats. At the end of each cricket season, he removed the cover and placed a piece of plastic over the steel lid of the cement box. There was a slot in the lid and the purpose of the plastic was to prevent dirt falling inside the box. He then filled the hole above the lid and the plastic, which had previously been occupied by the cover, with soil, and sowed it with grass. In response to being told in cross-examination that the Australian Football League ("AFL") held the view that for its competition, holes should not be filled with loose sand or dirt, he explained that he rolled it and packed it down before sowing the grass. He attended to the required work on the Monday following the end of each cricket season. It took him roughly half a day to do it. He agreed that the area would be bare for about three weeks until the grass grew. His motive for filling in the hole in that way for the football season was because he regarded it as safer. He thought that if footballers fell on the cover, they could be injured.
A similar practice was followed at the Devonport oval, which was also used for NTFL matches, as well as for matches under the auspices of the North Western Football Association. The oval was the home ground of the Devonport football club, which competed in the NTFL. In the summer months it was used for cricket and for an athletics carnival at Christmas time. Evidence was given by Mr Fiddler, who had been the curator of the oval for 11 years, that there were three irrigation outlets in the playing surface. The largest consisted of a hole roughly 500mm square and about a couple of feet (610mm) deep. The materials placed in the hole for the cricket season were a little different to those used at Girdlestone Park and the Latrobe Recreation Ground. The box around the outlet at the bottom of the hole was made of plastic and not cement. Upon it was placed a cover made up of three different materials. Uppermost in the cover was a soft artificial grass carpet, which was adhered to a layer of black rubber matting, which, in turn, was adhered to the main body of the cover, made of a fairly thick material. Photographs suggest that the material may have been plastic. The makeup of the two smaller outlets was a little different, but the differences are immaterial. Up until about 1996 or 1997, no change was made to those outlets for the football season. However, at that time an AFL Collingwood versus Melbourne pre-season football match was played at the oval and the outlets were altered for that match so that they were covered by grass and thereafter, that change has been made for each football season, reverting to the artificial covers for each cricket season. The work involved is the following. The cover of each hole is removed. Placed on top of the plastic box at the bottom of the pit is a custom-made board and on top of it, soil. A section of grassed turf is cut from outside the boundary line painted on the oval and placed in position on top of the soil and rolled. However, if there is a sufficiently long break between the end of the cricket season and the start of the football season, grass is sown instead of using turf. The resulting ground is very secure. The whole of the work, involving the three irrigation outlets, takes about half a day. The tools used are a spade and a rake. In cross-examination, Mr Fiddler accepted that it could sometimes be difficult to end up with an even surface and not a depression in the playing surface when the work had been carried out. However, his evidence-in-chief suggested that nevertheless, depressions were often avoided, for he said that by the end of the football season the position of the outlets could be difficult to locate for a person who did not know where they were.
The learned judge concluded that the council breached its duty of care and thereby caused the respondent's injuries in these terms:
"The irrigation taps are not used during the football season, so there is no need to have them readily accessible for about six months of the year. The relevant risk of injury could be removed easily and without expense or, at least, with only minimal expense, by removing the covers during the football season and simply filling the hole in with soil, tamping it down level with the surrounding surface and sowing grass on it.
...
The council was, and is, responsible for the maintenance of the recreation ground and its failure to do the same at its ground for the football season as was done at Devonport and Girdlestone Park constituted a breach of the duty of care owed to the plaintiff on 27 March 2004. As a result of that breach the plaintiff suffered loss, injury and damage."
The evidence justified a finding that if the council had adopted the course of replacing covers with properly compacted soil and sown grass or turf, the respondent's accident would not have happened. It was the appellant's case that nevertheless, by holding that the council should have adopted that course and breached its duty of care by not doing so, the learned judge applied hindsight, after the respondent's accident had occurred, and did not base his decision properly on the evidence that established the following facts. The sprinkler pit covers had been installed in precisely the same way at Latrobe for a considerable number of years and there was no suggestion of it having been done in any other way. None of the witnesses, who might have had knowledge about the matter, had heard of an injury being suffered by a person because of the covers or their method of installation. The NTFL did not require that the pits be covered in any other way. The Match Day Checklist, which asked "are sprinkler covers correctly in place", obviously assumed that covers, such as those used at Latrobe, would be used at more than one football ground. The Checklist was part of the document Australian Football National Risk Protection Program Season 2004 which was provided through the AFL, the top football administrative body in the country. It required merely that covers be correctly in place. The only evidence of an alternative method being used concerned the Devonport oval since 1996 or 1997 and Girdlestone Park since at least 32 years prior to the trial. There was no evidence of it being used at any other ground. There was evidence, from Mr Wotherspoon, the General Manager of the NTFL, that when he last noticed, probably two years before the trial (which is likely to have been after the respondent's accident), West Park oval at Burnie had such pits covered in a similar way to Latrobe. Apart from those four ovals, the evidence did not establish what methods, if any, were used at football grounds in this State or outside it.
Counsel for the council also pointed to the acceptance by Mr Fiddler that it could sometimes be difficult to achieve a level surface, and not a depression, if a hole was filled in with soil topped by grass. That evidence was of something that was obvious, but it raised an important matter. It highlighted the undoubted fact that whichever system may have been used, reasonable care was required for the purpose of avoiding a significant difference and, in particular, an abrupt difference, between the height of the surface immediately above a pit and the height of the surrounding soil, so that a risk of injury was avoided.
It was submitted for the council that there was no evidence that filling in the pits with soil and grass was a safer practice than leaving the pits in place, with their Astroturf covers. It was argued that the use of different soils and grasses as a temporary measure from about March to August each year created its own risk of injury through subsidence or movement in the surface upon or through use. However, that was not the evidence of Mr Roberts, who had been replacing the pit covers with soil and grass every year for 32 years at Girdlestone Park because he regarded that to be safer for the use of footballers. He packed the soil down into the hole. There was no suggestion in his evidence that subsidence or other movement occurred following the completion of the work each year. It was Mr Fiddler who agreed in his evidence about his practice at the Devonport oval since 1996 or 1997, that it could sometimes be difficult to avoid a depression, but that evidence should be understood in the light of his other evidence that it was his experience that the sites where he had filled in pits with soil and grass were very secure. Further, his concession that a depression could occur was not a concession that a hard edge height differential could occur, in the sense in which that expression was used by the learned judge.
In accordance with what was said by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at par151, the perception of the required response by the council calls for consideration of various matters, in particular, the magnitude of the risk and the degree of probability that it will occur, and the expense and difficulty for the council in taking steps to alleviate the danger. The council's duty did not extend to ensuring the safety of all footballers who used the oval in all circumstances. The risk identified by the learned judge was that brought about by the so called hard edge height differential. A risk was not identified from a consideration of the cover being constructed out of timber covered in Astroturf. The possibility that a footballer might suffer an injury by slipping on the surface of such a cover appears not to have been raised. There was no evidence of an injury having been caused by slipping (although there was evidence from Mr Justin Johnson that he and another player stumbled when they ran across the cover in 2004 pre-season training). If a foreseeable risk of injury by slipping on the cover had been established, the need for the alternative method of covering pits, that was used at the Devonport oval and Girdlestone Park, would have been greater.
The need to avoid a hard edge height differential on a football oval is greater than on many other public areas, for reasons that were pointed out by the learned judge. Australian Rules Football is a fast moving contact sport, frequently requiring players to run and jump at considerable speeds, often while concentrating on the ball and other players, rather than on the surface of the playing field. Plainly, if participants needed to concentrate on the surface of the ground for their own protection, the playing of the game would be substantially different.
Although the learned judge found that the hard edge height differential was at least half a centimetre, not considering it necessary to make a more precise finding than that, the evidence showed the difference to be more than half a centimetre. The learned judge found that the respondent's brother, Darren Williams, was the only witness who made a careful examination of the relative levels of the top of the cover and the surrounding soil, that he was a careful witness and that his evidence was corroborated in part by Mr Andrew Boon. It is not clear why the learned judge seems to have attributed more weight to Mr Williams' evidence than that of Mr Boon. Both men went to look at the cover and both made a close inspection of it.
Mr Boon's evidence was that following the seniors game on the day of the accident, he and Mr Williams went out to look at the cover. Mr Boon knelt down next to it and took a photograph of it with his mobile telephone. (The photograph did not survive a subsequent accident with the telephone.) He took the photograph because he could see what he referred to as a lip, but which he explained as the cover not being flush with the surrounding soil. He said that it was between one or two inches (2.5 to 5 centimetres) lower. He added that he put his hand on the cover to balance himself and it did not move, and that at the time he observed the lower height of the cover he had lifted the grass that was hanging over it from the side.
Darren Williams' evidence was that he and Mr Boon went out to inspect the cover after the main game finished and that the latter took some photographs, but it is apparent that Mr Williams did not make a very close inspection of it himself that day. He said that after speaking to the respondent the following day, he returned to the cover on his own and inspected it, and at that time it appeared to be unstable, rocking from side to side, and the top of the cover was lower than the surrounding soil. In his evidence-in-chief he described the difference in height as anything up to an inch (2.54 centimetres), and in cross-examination as noticeable and "a centimetre, two centimetres". He said that for the purposes of making his inspection, he got down on his hands and knees and "got my head down as close [sic] and had a look at the lay of the land".
It is apparent from that evidence that the cover was considerably more than half a centimetre below the surface of the surrounding soil. An exact finding could not be made upon the evidence, but it may well have been two centimetres or more, and it was noticeable to both Mr Williams and Mr Boon when they knelt down next to the cover and made close inspections.
The difference in height created a real risk of injury. On the evidence, it is likely that it would have been avoided if properly compacted soil, covered with grass, had replaced the covers for the football season or if in some other way, such a substantial difference in height had been avoided by a proper construction of the pit and its cover. It is unlikely that the top of the cover had subsided into the ground by reason of some recent, unexpected and not foreseeable event. On the evidence, a finding should have been made, on the balance of probabilities, that the structure of the pit and its cover was in some way deficient. The finding of the learned judge that the council breached its duty of care by not doing what was done at Devonport and Girdlestone Park has not been shown to be erroneous, although I also consider the council to be liable in negligence simply because it failed to take reasonable care to construct the pit and its cover in such a way as to avoid a hard edge height differential of the magnitude that in fact existed or, alternatively, failed to take reasonable care to maintain the pit and its cover in that condition.
The clubs' appeal
The learned judge rejected the argument that the clubs were also liable to the respondent because they failed to cover the sprinkler pits with soil or grass. His Honour considered that it was the responsibility of the council to maintain the surface of the ground and not the responsibility of the clubs.
It was found by the learned judge that the LFC was liable to the respondent because it failed to ensure that the ground was safe and in a reasonable condition for the purpose of playing football and it failed to ensure that the level of the cover was the same as the immediately surrounding playing surface. Those findings were in accordance with particulars of negligence in the statement of claim. The learned judge said enough about the law of negligence in his reasons for judgment to make it clear that what he meant was that there was a failure on the part of the clubs to take reasonable care to ensure that the ground was safe and in a reasonable condition for the purpose of playing football and that the level of the cover was the same as the immediately surrounding playing surface.
It was found that on the Wednesday before the match, Mr Malcolm Jackson (incorrectly referred to as Johnson by the learned judge in par72 of his judgment), an LFC committee member, inspected the ground, including the cover. He did so pursuant to the obligation of the club to make an inspection as required by the council. In response to the question in the council's facility inspection sheet asking "Pitch covers secure and in good condition", he placed a tick in the "OK" column. On the morning of the day of the accident, Mr Brett also inspected the ground, including the cover. The learned judge said that there was no evidence that Mr Brett was a member of the committee of the LFC but that was erroneous. Mr Brett's evidence was that he had been on the committee for six years. In any event, the learned judge inferred that Mr Brett was on the committee. On the morning of the match, he completed the Match Day Checklist for the club, pursuant to the obligation imposed by the NTFL on each club to inspect and complete the checklist prior to the first game of the day. The purpose of the inspection was to ensure the safety of the players, which the club well knew, and was a requirement as a result of the new insurance arrangements that had been entered into by the NTFL. It was Mr Brett's evidence that he was also the Under 19s team manager and that the club's committee decided it was logical he should carry out the inspection as one of his duties prior to the first match of the day, because the Under 19s were to play in that match. He said, and the learned judge found, that he could not locate a representative from the EDFC until after the Under 19 game was over. It was also found that while Mr Brett had carried out the inspection of the ground, including the cover, on behalf of the LFC, no one carried out an inspection on behalf of the EDFC, which was something that was also required by the NTFL in the interests of the safety of the players.
One of the questions asked in the Match Day Checklist under the heading "Field of Play" was "Is the surface in good condition? (grass length, free of holes)" and another was "Are sprinkler covers correctly in place?" Mr Brett responded positively to both. Immediately above the place specified on the checklist for the signatures of representatives of both clubs were the words: "Prior to the commencement of play, we, the undersigned, have undertaken the above inspection and agree that the playing environment is fit for play." Mr Brett agreed that he had adequate time to conduct a sufficient inspection and that the purpose was to ensure player safety in the matches that were to follow. However he also maintained that he carefully undertook his inspection which plainly the learned judge did not accept. Mr Brett said that while he did not touch the covers, he went to them and looked at them and they appeared to be level and did not have a slope contrary to the slope of the surrounding ground.
Against the LFC, the critical findings of the learned judge were that a reasonable football club would have foreseen that if the top of the cover was not flush with the surrounding soil, a hard edge height differential would be created which would give rise to an obvious risk of injury to a footballer, and that the LFC inspection was insufficiently thorough to detect the height differential that in fact existed and caused the respondent's injuries. His Honour considered that "a reasonable club in the position of the Latrobe Club would have been aware of the risk of injury arising from a height differential, inspected the ground in a manner that would have detected a height differential, and asked the council to eliminate it."
Against the EDFC, the learned judge found similarly that a reasonable club in its position would have inspected the ground before the match was played. The finding was based upon the evidence that the NTFL had instructed each club to make the ground inspection and complete the Match Day Checklist before playing a match. The purpose of the inspection was to minimise the risk of injuries. Each of the competing clubs was required to sign the checklist after completing it. The learned judge held that it followed that if the EDFC had made the inspection it should have made, it would have detected the height differential and asked the council to eliminate it, and that its failure to make the inspection constituted a breach of the duty of care it owed to the respondent.
For the clubs, it was submitted that their duty was to take reasonable care that the ground was safe for the purpose of playing football and that the learned judge was wrong in concluding that an inspection carried out in compliance with that duty would have detected that the height of the cover was significantly below the height of the surrounding soil. Reliance was placed by the clubs on the following findings of the learned judge in his judgment:
"I do find from the evidence that was given that after the plaintiff's accident, attention was then principally focussed on whether the cover was stable, not whether its top was flush with the surrounding soil. I also find that the cover had not been lifted for about five or six weeks prior to 27 March 2004 and during that time the grass had been allowed to grow around it undisturbed, except for weekly, or almost weekly, mowing. I find that this growth made it very difficult to discern whether the top of the cover was flush with the surrounding soil unless a very close inspection was made."
The respondent does not challenge any of those findings, and particularly not the finding that the grass made it very difficult to discern whether the top of the cover was flush with the surrounding soil unless a very close inspection was made. Mr Boon and Mr Darren Williams made their observations of the hard edge height difference by making their close inspections of the cover on their hands and knees. Mr Williams also put his head down, and Mr Boon lifted the grass that was hanging over the edge of the cover. They made their very close inspections in an attempt to understand why it was that the respondent had fallen and suffered his injuries. Their observations were made with the considerable benefit of hindsight.
When Mr Jackson inspected the ground on the previous Wednesday and Mr Brett inspected it early on the Saturday morning, the forms they were filling in asked respectively whether the holes were covered and padded and whether the covers were correctly in place. A visual inspection may well have justified their affirmative answers to those questions, unless they did what Mr Boon and Mr Darren Williams did, with the advantage of hindsight, by making a very close inspection. The forms did not direct the attention of Mr Jackson and Mr Brett to the need to compare the height of the covers with the height of the surrounding soil.
The findings that the clubs breached their duty of care was based in the case of the LFC, upon the failure of Mr Brett to make a sufficient inspection before the matches were played on 27 March, and in the case of the EDFC, upon a failure to inspect at all that day. In both cases, they were found liable upon the basis that before any of the matches were played that day, a reasonable person (or club), would have carried out an inspection with such a degree of care that the hard edge height difference would have been discovered and remedied before the matches were played.
With respect to the learned judge, that was imposing too onerous a standard of care, particularly with regard to the EDFC, but also with regard to the LFC. A reasonable club, whether at home or away, should not have been expected to have had one of its members, probably an unpaid volunteer, out on the ground prior to the commencement of the Under 19s match, which started at about 8.50am each Saturday according to Mr Brett, down on their hands and knees and lifting the grass at the edge of the five irrigation pits, or in some other way taking considerable care, checking to make sure that there was not a significant hard edge height difference. The Match Day Checklist did not require that. So far as the pit covers in particular were concerned, it asked only whether they were correctly in place. It required the inspection of other items as well, such as the ground surface, to see that it was free of debris and holes, the condition of the perimeter fence and the padding around the goal posts. The ground was used several times a week for training and matches. Those inspecting were entitled to expect that the height of the pit covers that appeared properly in place, was unlikely to vary from time to time. To require inspections of the kind considered necessary by the learned judge was expecting far too much. An inspection carried out for the purposes of the checklist would have been sufficient if all that the club representatives did was to walk around the ground checking visually that the matters referred to in the checklist appeared to be properly in position or in an appropriate condition. The submission of the respondent's counsel that an inspection that included representatives getting down on their hands and knees at each pit could not be described as complicated, burdensome, or otherwise unreasonable, should be rejected.
In general terms, the LFC as the home team, had a greater responsibility for the safety of the facilities than the visiting EDFC. Nevertheless, a reasonable inspection by it did not require the degree of close inspection thought to be necessary by the learned judge. So far as the EDFC is concerned, it breached the standard of care required of it by its failure to inspect at all, but it should not have been found liable to the respondent because a reasonable inspection by a representative of a visiting club would not have disclosed the height difference.
Conclusion
For the reasons I have given, I would dismiss the appeal by the Latrobe Council, uphold the appeals by the Latrobe Football Club Inc and the East Devonport Football Club Inc and make consequential orders in their favour.
File No FCA 2/2007
FCA 3/2007
LATROBE COUNCIL v SHANE LEONARD WILLIAMS
LATROBE FOOTBALL CLUB INC AND EAST DEVONPORT FOOTBALL
CLUB INC v SHANE LEONARD WILLIAMS
REASONS FOR JUDGMENT FULL COURT
EVANS J
27 September 2007
I have had the benefit of reading the reasons for judgment prepared by Crawford J and agree with his reasons and the orders he proposes.
I add that my satisfaction that such difference as was reasonably observable between the level of the irrigation tap cover and the level of the ground was not of sufficient significance to warrant attention is reinforced by what occurred immediately following the respondent's injury. The seriousness of his injury was plainly apparent. He said that two bones were sticking out of his football sock. He said a lot of people gathered around and after some time he was taken off the field on a stretcher. He said that the irrigation tap cover in question was about 1 to 2 metres from him and people were saying it must have been the cause of his injury. He gave no evidence to the effect that he noticed anything untoward about the level of the cover. As evidence to that effect would have been in his interests, I infer that he did not notice any difference between the level of the cover and the ground. Although, in view of his condition, I place little significance on this. However, when the respondent was injured, there would have been 36 players on the ground, together with umpires. It is inevitable that a number of those present inspected the cover. Certainly prior to the resumption of play it was inspected by the respondent's brother, Darren Williams, three Latrobe players, Brett Smith, Justin Johnson and Jason Woodcock and the playing coach of East Devonport, Andrew Boon. Play resumed without anything being done to alter the level of the cover and following the completion of the game, a further game was played on the ground by the senior teams. Had such difference as was observable between the level of the cover and the level of the ground appeared to be sufficient to constitute a risk, it would have been comparatively easy to rectify the situation. That nothing was done in this regard before play resumed, notwithstanding the significance of the injury that had been caused to the respondent, suggests that the reasonably observable difference between the level of the cover and the ground was not significant.
File No FCA 2/2007
FCA 3/2007
LATROBE COUNCIL v SHANE LEONARD WILLIAMS
LATROBE FOOTBALL CLUB INC AND EAST DEVONPORT FOOTBALL
CLUB INC v SHANE LEONARD WILLIAMS
REASONS FOR JUDGMENT FULL COURT
TENNENT J
27 September 2007
I have had the benefit of reading the detailed reasons prepared by Crawford J in respect of each of these matters. I agree with the reasons, the conclusions he has reached and the orders he proposes.
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