Mount Isa Basketball Assn v Anderson

[1998] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B59 of 1997

B e t w e e n -

MOUNT ISA BASKETBALL ASSOCIATION INCORPORATED

Applicant

and

SHARLENE MAREE ANDERSON

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 9.40 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:   May it please the Court, I appear with MR R.A. INGHAM‑MYERS for the applicant.  (instructed by Thynne & Macartney)

MR K.D. DORNEY, QC:   May it please the Court, I appear with MR R.J. DOUGLAS for the respondent.  (instructed by VR Moffatt & Associates)

GAUDRON J:   Yes, Mr Solicitor.

MR KEANE:   If it please the Court, the submission we would wish to make on appeal can be stated in two broad propositions.  First, the principle in Wyong Shire v Shirt envisages classes of case in which a reasonable person would accept a continuance of a risk which was not far‑fetched or remote and the law would not hold him responsible if he did, even where the risk can be eliminated without undue difficulty or expense, and in support we rely on dicta that we have referred to in our written outlines in Inverell Municipal Council v Pennington and in the Queensland Court of Appeal decision in Jaenke v Hinton.

Second, one such class of case concerns the obvious and ordinary risks in human movement which we cope with as a matter of commonsense and natural instinct.  Where those risks are part and parcel of an activity in which people voluntarily choose to participate, the organisers of those activities can reasonably expect participants to regulate their movements to avoid injury by reason of the obvious and ordinary risks.  In that regard we draw support from the dicta of the Victorian Court of Appeal in The Mountain Cattlemen’s Association v Baron which we have cited.

GAUDRON J:   Does it not rather depend in this case on how you frame the duty?  I mean, it may very well be if you frame the duty as you do not run backwards, to advise, to warn not to run backwards, that is one thing, but you specify it in terms of when following the game, skip sideways, that may be a very different duty.  It may be one that is not so obvious.

MR KEANE:   Your Honour, if one can reduce it in that way to a question of fact, then obviously our point goes.  We would submit ‑ ‑ ‑

HAYNE J:   Is it not then simply a question of fact?

MR KEANE:   In our respectful submission, not, because the relevant question is, is there a necessity, is there really a difference, with respect, is there a difference between saying, “Don’t run backwards and don’t run backwards if you are following the game.”  It is really the same thing.

GAUDRON J:   Or run sideways when following the game.

MR KEANE:   Well, run sideways because you should not run backwards because if you run backwards you are likely to fall over.

GAUDRON J:   But one may be obvious and the other not so obvious.

MR KEANE:   In our respectful submission, as a matter of obviousness, it does not really matter whether one is following the game or not.  If one runs backwards, there is an obvious, an ordinary risk of falling over.  That was certainly the view taken by the learned trial judge at page 20 of the record, lines 20 to 40, and it was the view of Justice Mackenzie in the Court of Appeal at 44 lines 20 to 44.  The majority took the view that a reasonable person could only have discharged his or her duty by providing instruction to the effect that running backwards involved a risk of a fall and consequent injury and that appears at page 35 of the record line 54 to 36 line 8, and if we could ask the Court to go to page 34 of the record at line 20.  There it will be seen that the majority - that is 34, your Honours, lines 20 to 34 - rejected “the obviousness and ordinariness of the risk” of running backwards in the course of the game as factors negating breach of duty for two reasons.

The first was that a person who owes a duty must take account of the possibility that persons to whom the duty is owed might through inadvertence fail to take proper care for his or her own safety, and as to that the dicta of members of this Court in Romeo v The Conservation Commission of the Northern Territory remind us that if the risk is obvious, the risk only exists in the case of someone ignoring the obvious.  The obvious nature of the risk negatives the possibility of inadvertence and that is the answer we would make to the proposition that your Honour has put to us.

GAUDRON J:   But, again, this comes down to facts though.  It is one thing to talk about inadvertence in ordinary situations in which there is room - well, there is time to pause, if you like.  It is not necessarily the same thing when play is on and where, to do the duty properly, you have to be at a particular point in the game on the field.

MR KEANE:   Any participant in any game, involving human movements ‑ ‑ ‑

GAUDRON J:   This is not a participant.

MR KEANE:   It is a referee.

GAUDRON J:   Yes, a paid referee.

MR KEANE:   Well, not that anything turns on that, your Honour.

GAUDRON J:   I am not too sure about that; it was certainly proximity.

MR KEANE:   None of the judges below who considered it have accepted the case should be put on a master and servant basis, as a basis for identifying a relationship of proximity.

GAUDRON J:   But if you do identify that particular relationship, there is authority that the duty of care can be somewhat higher in cases of that kind, than ordinarily.

MR KEANE:   Your Honour, our case is not that there is no duty; our contention is, we accept that there is a duty, but accepting there is a duty, our contention was that there is no breach.

GAUDRON J:   What was the duty?

MR KEANE:   The duty is to take reasonable care for the safety of those ‑ ‑ ‑

GAUDRON J:   And what did that involve in this case?

MR KEANE:   That involved the provision of an experienced referee to assist in carrying out the task in the game and that was done.

HAYNE J:   But once you accept there is a duty, the point becomes a pure question of fact, does it not, Mr Solicitor?  If there is a duty on the Association to take care of its refs, then there is a duty to tell them, skip sideways keeping your eye on the game that way.

MR KEANE:   Your Honour, there is a duty no doubt to take care of them by alerting them to those things which are not obvious.  For example, if in truth it turned out that this court was slippery, as was the gravamen of the respondent’s case, that would be an example where there would have been a breach of duty, but our contention is that there is not a breach; our contention is that a reasonable person, in the position of the Association, would have been content to refrain from instruction in circumstances where the risk was only a risk to those who ignore the obvious.

HAYNE J:   Then what is the general principal that you say falls for determination and decision?

MR KEANE:   It is this, your Honour, that the second basis, and indeed, we would submit, the principal basis, on which the majority of the Court of Appeal determined in the case against us was that the risk can be eliminated without undue expense or difficulty.  The majority regarded obviousness and ordinariness of risk as diminishing in significance, as negating a breach of duty, according to the ease or inexpensiveness of taking preventive measures, to the point where they are of no significance if the remedy is cheap and simple.  Now if that view were correct then the dicta in Inverell Municipal Council v Pennington and the Victorian Court of Appeal in The Mountain Cattlemen’s Case could not be correct, because if a risk is capable of a cheap and simple remedy, then the fact that it is obvious and only a danger to those who ignore the obvious, would not be an answer to an allegation of breach.

Our submission is simply that those who organise voluntary participation in sport ought not to be held liable for the consequences of risks that are the ordinary and obvious risks of participation in those sports.  The Court should be slow, in our submission, to impose burdens which may dampen this important aspect of the life of our community, especially in remote or disadvantaged areas and, your Honours, in our submission, in judging whether there has been a breach by the standards of the day, it should be noted that there was no evidence of any systematic instruction on novice referees at all, anywhere, and there was no established acceptable practice.  Our respectful submission is, that is the standard; to not apply that standard on the ground adopted by the majority of the Court of Appeal that the risk was capable of a simple and cheap remedy, is, in our respectful submission, to put the standard too high and to apply slavishly the language of Wyong Shire Council v Shirt without recognising that there are cases where a reasonable person can allow a risk to continue and not be held responsible for it.  Those are the submission we wish to put orally, if it please the Court.

GAUDRON J:   Yes, thank you, Mr Solicitor.  We need not trouble you, Mr Dorney.

Given the concession that there was a duty of care owed by the applicant, the only question that arises in this case is the content of that duty, a question which largely involves a consideration of factual issues pertaining to the game of basketball.  The case is thus not a suitable vehicle for the elaboration of any point of general application.  Accordingly, special leave is refused.

I presume you ‑ ‑ ‑

MR KEANE:   Nothing to say, your Honour.

GAUDRON J:   It will be refused with costs.

AT 9.51 AM THE MATTER WAS CONCLUDED