Pickersgill v S J M Sports Pty Ltd
[2002] WADC 203
•2 OCTOBER 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PICKERSGILL -v- S J M SPORTS PTY LTD [2002] WADC 203
CORAM: GROVES DCJ
HEARD: 9-11 SEPTEMBER 2002
DELIVERED : 2 OCTOBER 2002
FILE NO/S: CIV 3209 of 2000
BETWEEN: LANCE PICKERSGILL
Plaintiff
AND
S J M SPORTS PTY LTD
Defendant
Catchwords:
Torts - Negligence - Personal injury - Onus of proof - Rule in Jones v Dunkel
Legislation:
Occupiers' Liability Act 1985
Result:
Action dismissed
Representation:
Counsel:
Plaintiff: Mr D L Jones
Defendant: Mr R E Keen
Solicitors:
Plaintiff: John Rando & Co
Defendant: Srdarov Richards
Case(s) referred to in judgment(s):
Jones v Dunkel (1959) 101 CLR 298
Case(s) also cited:
Nil
GROVES DCJ: On the evening of 9 January 1996 the plaintiff was playing indoor cricket at the Cockburn Indoor Cricket Centre. In the course of the game he suffered a rupture of the anterior cruciate ligament of the right knee. The plaintiff claims that in the action of bowling his right foot caught in a hole in the carpet constituting the playing surface of the field causing him to twist and fall to the ground and thereby suffer the injury.
The plaintiff claims that the defendant owed a statutory duty pursuant to the Occupiers' Liability Act 1985 to take reasonable care to prevent injury to the plaintiff by reason of any dangers which were due to the state of the premises or to anything done or omitted to be done on the premises. Further, the plaintiff alleges that the defendant owed a general duty of care to take reasonable care to avoid a foreseeable risk of injury to the plaintiff whilst he was on the premises.
The defendant denies liability.
Liability – the plaintiff's case
The plaintiff was born on 6 September 1961 and was 34 years of age at the time he sustained the injury. He had since the age of 16 years played indoor cricket on a regular basis although he had not played for a couple of years before his accident. On this occasion his brother had asked him to play as a fill in on his team. His team fielded first and the plaintiff kept wickets for the first two overs. He was called upon to bowl the third over and it was in the course of his first delivery that the incident occurred. The plaintiff is a right arm bowler and he bowled around the wicket. His run up to the wicket was of about 8 m and he ran in as hard as he could to bowl as fast as he could. His focus was towards the batsman at the other end and where he was going to pitch his delivery. In the delivery stride he placed his right or back foot down before (or, in cricketing parlance, behind) the wicket and was halfway through his bowling action when he experienced a tripping sensation. In his words it "…felt as though something tugged at the front of my shoe…" and "…felt as though my foot had caught on something…" The consequence was that he collapsed to the ground with pain in his right knee. The plaintiff did not recall having put his left or front foot down in the delivery stride nor could he recall whether he delivered the ball. He landed on his back and did a half roll and clutched his right knee. He said that he fell forward only a couple of metres past the crease. He checked his shoes to see if they were the cause of his fall. His laces were tied and the soles were intact. He was assisted to his feet and had a look at the surface of the pitch in the area where he had bowled. He notices two patches where the carpet was worn. He marked on a floor plan (Exhibit 5) where these patches of wear in the carpet were. One patch was behind the wicket in the area where a bowler's back foot would be placed down and the other area was in front of the wicket and short of the popping crease where a bowler's front foot would land in the course of the delivery stride.
It was the plaintiff's evidence that it was the hole in the carpet where he had placed his back foot in the delivery stride that was the cause of him having tripped. He described that hole in the carpet as being about the size of a football and oval in shape. The hole in the underlay or carpet backing was about 2 cm less than that all round and in that the concrete floor was showing. He described the area of concrete showing through as being about 10‑15 cm in length and 10 cm wide. In all he looked at the holes for about two minutes. It was his evidence that he did not look at the surface of the pitch in the area of the bowling wicket before he commenced his delivery. He limped from the field. An ice pack was applied to his knee. He remained for about 40 minutes and his brother then took him to Fremantle Hospital. X‑rays were taken and he was discharged to see his general practitioner the next day. He saw his GP, Dr Spurge, the next day who referred him to Mr Michael Tiller, orthopaedic surgeon, whom he saw on the day following. Mr Tiller diagnosed damage to the cruciate ligament of the right knee and that evening undertook an arthroscopic right knee chondroplasty. Subsequently, on 13 March 1996 Mr Tiller carried out an arthroscopic right anterior cruciate ligament (ACL) reconstruction.
Under cross‑examination the plaintiff acknowledged that he may have been bowling the fourth over of the innings. Presented with the score sheet (Exhibit 8) kept by the umpire he accepted that it was the fourth over and not the third, as had been his earlier evidence. It was suggested to him that it was not the first ball of the over but that it was delivery of the third or fourth ball when he suffered his injury. The plaintiff was adamant that it was the first ball of his over. He described the back foot hole as being worse than the front foot hole in that it was larger but of similar depth and that there was a slight lip on the carpet in which he suggested the front of his shoe had caught. He described the back foot hole as being "quite noticeable".
It was put to the plaintiff that there was only one area of wear of the carpet that being in the area where his front foot would have landed. The plaintiff rejected that assertion as being wrong. It was also put to him that he completed the bowling delivery and the batsman played the delivery. That too was met with the response as being wrong. Further, it was put to him that the ball was hit to his left (batsman's right) side and that he completed his bowling delivery and changed direction to his left to field the ball and that it was in the course of that manoeuvre that he suffered injury to his knee. The plaintiff emphatically denied that those were the circumstances whereby he came to suffer his injury.
The plaintiff was shown two photographs of the pitch at the bowler's end which were said to have been taken by the centre manager only a matter of days after the incident (Exhibit 7). The photographs show clearly an area of wear to the carpet where the front foot lands in the delivery stride just behind the popping crease. Whilst there is a darker area on the carpet where the back foot would land the photographs do not indicate any hole in the surface of the carpet or any wear similar to that like the front foot position. When these photographs were put to the plaintiff he acknowledged that they did not show any hole in the carpet behind the stumps where his back foot would have landed. He maintained however that his right foot had caught in a hole in the carpet behind the stumps. He identified the wear in the area where the front foot lands and acknowledged that this was not the hole which had caused him to trip.
The plaintiff called Scott Jason Raper who was playing on the same side and was fielding behind the bowling wicket at the back of the court. He described the plaintiff running up to bowl and observing that when he was about adjacent to the bowling wicket he fell in a heap on the pitch about 1 to 1½ m in front of the wicket. To his recollection the plaintiff did not continue through with delivery of the ball. His evidence was vague and, I find, unreliable in its detail. He did not know what over of the innings was being bowled or whether the plaintiff had bowled beforehand nor where the plaintiff had fielded previously. In cross‑examination it was put to him that delivery was completed and the ball hit by the batsman. He acknowledged that could have been so. Further it was put to him that the plaintiff after delivering the ball went to his left to field the ball. He acknowledged "possibly that could have happened". In the end result he acknowledged that really the only thing that he could remember was that the plaintiff fell onto the pitch and as he described "…the rest is a blur…" He maintained in re‑examination that the plaintiff fell in the course of his bowling action.
More significantly, so far as this witness is concerned, is not what he had to say by way of evidence but rather what was not said or raised in the course of his evidence. His evidence contained no mention as to the condition of the surface of the pitch in the area of the bowler's wicket or of having inspected, looked at or noticed anything in that area nor anything which might be said to have been relevant insofar as the cause of the plaintiff falling. I will comment further on this later in these reasons.
Tracey‑Lee Padavan was also called by the plaintiff who as it transpired is her uncle. She has played indoor cricket at this venue and also attended there on numerous occasions as a spectator when her sons were playing. On this evening she was seated on the benches directly behind the bowler's end of the pitch and outside the field of play. She was there with others and recalled some laughing or joking with them about certain matters just prior to the plaintiff coming on to bowl. The bench seat where she was sitting was about 2 m outside the back netting and she estimated that the wickets at the bowler's end were about 3 m inside the netting. Thus, she was about 5 m from the bowler's wicket. She observed the plaintiff come in to bowl around the wicket and his "…foot slipped into a hole and his leg twisted and he fell to the ground…he landed near the wicket…" When the plaintiff fell he let go of the ball as he was coming down. Mrs Padavan did not know where the ball went and could not recall if the batsman may have hit the ball. She said that from her position on the benches she could see a hole in the carpet in the area of the bowling wicket. She said she had seen the hole there before this incident. The hole was 2/3 mm deep and there was no carpet or underlay on the hole but just bare concrete underneath. There was only the one hole and she did not recall any other holes in the carpet on the pitch. On a plan of the playing area (Exhibit 12) Mrs Padavan marked an area in front of the wicket nearer to the wickets than the popping crease. She also marked the area immediately adjacent to that as being the position where the plaintiff ended up after he fell. She estimated the size of the hole to be 14 cm wide by 22½ cm long.
In cross‑examination the witness struggled and hesitated with her recollections. She was not sure that the plaintiff's team were fielding first, she thought that two pairs of batsmen (ie four batsmen) had batted before the incident, that the innings was half way through and that it may have been the plaintiff's second over when the incident occurred. By her own expression she was not positive of those things. Having confirmed that she only saw one hole in the carpet she was shown the photographs. She thought that the plaintiff had fallen further back towards the wicket from where the front foot wear in the carpet is shown but acknowledged that she could be mistaken as to the position as to where she had identified the wear on the carpet. In any event in re‑examination she said that the front foot hole near the popping crease was not the hole she thought the plaintiff had fallen in. She was not able to identify any other hole in the carpet. She did not go on to the playing area of the field to have a closer look at any hole in the carpet. The witness acknowledged that she may have spoken to the plaintiff about the incident on occasions since the accident but claimed that she had not discussed it in detail with him. She had offered to be a witness and her evidence was to the best of her recollection. Whilst her recollection was vague in some respects (perhaps due to medication which she explained she was on) her evidence, so far as there being one area of wear or hole in the carpet, and that this was between the wicket and the popping crease, she was certain of. So far as she was concerned there was no other hole. She gave no evidence of there being a hole in the carpet behind the stumps in the area where the bowler's back foot would land in his delivery stride.
Liability – the defence case
David Charles Hart was umpiring the game. The umpire sits in an elevated position just outside the field of play and immediately behind the batsman. It was acknowledged by the plaintiff and the other witnesses that the umpire has the best field of view over the whole of the playing area. Mr Hart had played indoor cricket over many years and at super league level. Prior to the evening in question he had been umpiring for one or two years up to three nights a week. This had been done mainly at the Cockburn Indoor Cricket Centre. He described the condition of the playing surfaces at Cockburn as being in a good state of repair. He recalled this particular game because of the incident which occurred. It was his evidence that the plaintiff bowled the fourth over of the innings and that it was about the third or fourth ball of the over when the incident occurred. He observed the plaintiff come in to bowl right arm around the wicket. He watches closely the footsteps of the bowler to ensure that the bowler does not overstep the popping crease and thereby bowl a no ball. He delivered the ball and the batsman struck it towards the right side net being to the left of the bowler. Out of the corner of his eye he noticed the bowler change direction to the left so as to proceed to field the ball. He observed the bowler to proceed one pace and then to fall down.
The game was stopped whilst the plaintiff was helped from the playing arena. He recalled that a substitute came on to complete the plaintiff's over after the plaintiff had left the field. He described as "incorrect" the plaintiff's evidence that his back foot had landed in a hole behind the stumps which had caused him to fall almost immediately. It was Mr Hart's evidence that he had never seen any holes in the carpeting down to the concrete at the Cockburn Centre or that there were such holes on the evening in question.
He described the most common areas of wear as being where the front foot lands on either side of the wicket at the bowler's end and in the area where the batsman stands at the other end. Back foot wear is generally less than for the front foot as there can be a variety of positions where the back foot goes down but generally the bowler's front foot lands in the same area each time.
Mr Hart left Perth in June or July 1996 but prior to then had made a report of the incident. That report was protected by privilege. Since making that report however Mr Hart had not discussed this incident with anyone prior to coming to court to give his evidence. His recollection was clear and he gave his evidence unhesitatingly. His evidence was not tainted and he had no interest in the outcome of this litigation. I have no reason not to accept his evidence in its entirety.
Neil MacAuley was employed as the indoor cricket manager at the Cockburn Indoor Cricket Centre for approximately 10 years. He was on night duty on the evening in question. It was a part of his duties upon arrival at work to undertake an inspection of the premises which included inspecting the playing arenas to ensure that they were clean and to vacuum if necessary, to check that the pitches were in a safe condition and in this respect to check for wear at the bowler's end, at the batsman's crease and at the wicket keeper's position which were the common areas of wear, to check that the netting around each field of play was intact and to ensure that all lights were working. Any concern which he had as to the condition of the playing surface he would report to the centre owner, Mr Stephen Matkovich with whom he would also do a fortnightly inspection of the premises. As well as there being a regular maintenance programme repairs to the pitch would be undertaken as and when necessary.
It was Mr MacAuley's evidence that on the evening in question he undertook an inspection of the premises although when pressed he could not emphatically recall that he did so although it was his usual procedure to do so. He did not see the incident involving the plaintiff. He was at his manager's station when the plaintiff's brother Noel came to him. Noel enquired about insurance cover for the centre. Asked what the problem was Noel told him that his brother (the plaintiff) had been injured. Mr MacAuley's concern was to attend to the injured player. He went to the plaintiff who by this time was off the court and sitting in the benches. The plaintiff told him that he had hurt his leg. Mr MacAuley provided an ice pack. The plaintiff did not inform him as to how he had hurt his leg. It was his evidence that the game continued and that at the end of the game he went out with the plaintiff's brother Noel to inspect the wicket area. He later acknowledged that it may have been between batters or innings that this inspection was undertaken. Mr MacAuley checked the area of the bowler's box and around the wicket and the bowling position. He observed a "…normal high traffic wear area just shy of the front foot crease." He described that area as being where the bowler's front foot lands and where the green fibres of the matting were pulled away but that the black backing and latex backing were intact. As to the back foot position he did not observe anything untoward. He was emphatic that there was no hole in the carpet in the area where the back foot would land. It was his evidence that in all his years as manager at the centre he had never seen concrete exposed in any holes in the playing surface. Mr MacAuley took the two photographs (Exhibit 7) within two days of the incident and it was his evidence that the condition of the matting as shown in the photographs is as it was on the evening in question. No repairs had been done to the pitch in the interim.
It was the case that a full replacement of the pitch on this field was undertaken on 22 February 1996 some 5/6 weeks after the incident. According to Mr MacAuley this was done as part of the general maintenance of the centre and was not instigated as a consequence of this incident having occurred.
Finally the defence called Stephen John Matkovich, a director of the defendant company. He received a verbal report from Mr MacAuley on the day after the incident. He went and inspected the pitch and in particular the surface at the bowler's end. He observed that there was wear of the carpet fibres on either side of the wicket where a bowler's front foot lands. He did not observe any holes in the matting behind the bowler's wicket. He instructed Mr MacAuley to take the photographs. He confirmed that the replacement of the carpeting on the pitch on 22 February 1996 was part of their general maintenance programme and was not related to the plaintiff's incident. He was adamant that there has never been an occasion when the carpeting has been so badly worn through as to expose the concrete beneath it.
Plaintiff's request to re‑open case
At the conclusion of the defence case the plaintiff sought leave to re‑open to call the plaintiff's brother Noel to give evidence solely confined to the issue as to whether or not Noel had inspected the pitch with Mr MacAuley as the latter had contended in his evidence. It was not proposed that Noel would give evidence about the condition of the playing surface. For the reasons then enunciated I refused that application. I reiterate here that whilst Noel's evidence as to whether or not he did go to the wicket with Mr MacAuley might give rise to a conflict so far as that evidence is concerned it did not go to the heart of the issue which is as to whether or not there was a hole behind the wicket into which the plaintiff's foot went and which caused him to trip and cause injury to his knee. If there were a conflict as to Noel inspecting the pitch it may have reflected upon the credibility of Mr MacAuley's evidence generally. For reasons which I will explain later I do not need to rely on his evidence in coming to my decision in this matter in any event.
The onus of proof
In a civil trial the plaintiff carries the burden of satisfying the Court on the balance of probabilities that the injury sustained was caused in the manner alleged. That is, the burden of proof falls upon the party who asserts the truth of a particular fact.
Thus, in the context of this case the issue upon which the Court must be satisfied is that there was in fact a hole in the carpet in the area behind the wicket where a bowler's back foot lands in the delivery stride of the nature as that described by the plaintiff in his evidence. Whether or not there was such a hole is directly relevant as to the issue as to whether that was the cause whereby the plaintiff came to suffer his injury.
In coming to a determination the Court must necessarily have regard to the whole of the evidence and weigh up the evidence of the various matters, consider the credibility or otherwise of the witnesses generally and what weight, if any, to attach to the evidence of the witnesses. In undertaking that process it is appreciated that this incident occurred some 6½ years ago and by reason of that recollections may not be as accurate now as they might have been immediately after the event and there is a risk of reconstruction of the events. Reconstruction may occur where a witness has discussed the circumstances of an event on occasions over the intervening period.
The rule in Jones v Dunkel
As recorded earlier Scott Jason Raper played on the same team as the plaintiff and came to give evidence on his behalf. His evidence did not touch upon the condition of the pitch or playing area generally. No explanation was forthcoming as to why this was so. Nor were any other players from either team engaged in that game called and nor was the plaintiff's brother Noel who although not a member of either team was present on the evening. When leave to call him was sought it was proposed that he would only give evidence as to the limited issue of whether or not he went to the wicket with Mr MacAuley. That is, it was not proposed that he would give evidence as to the condition of the pitch or playing surface. No explanation was forthcoming as to why he had not been called.
The unexplained failure by a party to call witnesses or to lead evidence from a witness on a relevant issue may, in appropriate circumstances, lead to an inference that the uncalled evidence or evidence not led would not have assisted that party's case. Mr Raper was called and seemingly it was within the power of the plaintiff to call his brother had he wished to do so. Clearly such evidence as either of these persons may have been able to give as to the state of the pitch would be relevant so far as the matter in issue is concerned.
In the circumstances the only inference which might be drawn from these circumstances and which inference I do draw is that not only would their evidence not have assisted the plaintiff's case but rather it was likely to be favourable to the defence case. (See Jones v Dunkel (1959) 101 CLR 298).
Findings of fact
The plaintiff's case relies upon a finding that there was a hole in the carpet behind the wicket in the area where a bowler would normally put his back foot down in the course of his delivery stride and that such hole in the carpeting was of the size of a football and through to the concrete beneath the matting. Furthermore, by reason of there being such a hole that this was the cause of the plaintiff's back foot tripping on the lip or exposed edge of that hole and thereby suffering the injury which he did.
I am unable to accept that there was any such hole as the plaintiff alleges. The photographs tell the story. There is no hole in the carpeting in the area where the back foot would usually be placed in the course of the delivery stride. The plaintiff himself acknowledges that the photographs do not show any hole in the area or of the size and description which he alleges.
Secondly, on Mrs Padavan's evidence there was only one hole or area of wear and she marked that on her sketch plan as being in front of the wicket although not as far forward as the photographs indicate. According to her evidence there was only the one hole and there was no other hole and it was not her evidence that there was a hole in the carpeting behind the wickets.
Thirdly, the evidence of the umpire Mr Hart was emphatic. There was no hole in the carpeting as the plaintiff described in the back foot area, and furthermore in his experience there had never been a hole in the surface of the playing area at the centre which went through to the concrete. His evidence perhaps provides an explanation as to how the plaintiff did in fact come to suffer the injury although that explanation was rejected when it was put to the plaintiff in cross‑examination.
Fourthly, I accept the evidence of Mr MacAuley insofar as the daily system of inspection is concerned and his inspection of the wicket in the bowling area shortly after the incident. There was no hole through to the concrete in the area where the bowler's back foot was placed in the delivery stride. Fifthly, to similar affect the evidence of Mr Matkovich.
Sixthly, although in the circumstances outlined it is not necessary to draw the inference there is the fact also that Mr Raper gave no evidence of a hole as described by the plaintiff in the playing surface. I conclude that such evidence as he may have given would not have assisted the plaintiff's case. That confirms the view arrived at based upon the evidence overall that there was no such hole as the plaintiff suggests and his injury was not occasioned in the manner alleged.
For those reasons I reject emphatically the plaintiff's claim that his injury was caused or contributed to in any way by the breach of any statutory or common law duty imposed upon the defendant.
The plaintiff's action will be dismissed.
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