Williams v Latrobe Council
[2007] TASSC 2
•5 February 2007
[2007] TASSC 2
CITATION: Williams v Latrobe Council [2007] TASSC 2
PARTIES: WILLIAMS, Shane Leonard
v
LATROBE COUNCIL
LATROBE FOOTBALL CLUB INC
EAST DEVONPORT FOOTBALL CLUB INC
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 209/2005
DELIVERED ON: 5 February 2007
DELIVERED AT: Hobart
HEARING DATE: 7, 8, 11 – 14 December 2006
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Torts – Negligence – Essentials for action of negligence – Standard of care – Particular persons and situations – Other cases – Footballer injured due to irrigation pit cover set in ground below surface of adjoining soil.
Wyong Shire Council v Shirt (1980) 146 CLR 40, applied.
Aust Dig Torts [49]
REPRESENTATION:
Counsel:
Plaintiff: D J Porter QC
First Defendant: S B McElwaine
Second and Third Defendants: T D Cox and N E Avery
Solicitors:
Appellant: Ogilvie Jennings
First Defendant: Shaun McElwaine
Second and Third Defendants: Hunt & Hunt
Judgment Number: [2007] TASSC 2
Number of paragraphs: 78
Serial No 2/2007
File No 209/2005
SHANE LEONARD WILLIAMS v LATROBE COUNCIL,
LATROBE FOOTBALL CLUB INC,
EAST DEVONPORT FOOTBALL CLUB INC
REASONS FOR JUDGMENT UNDERWOOD CJ
5 February 2007
On the evening of Thursday, 25 March 2004, the coach of the East Devonport Reserves telephoned the plaintiff. His team was short of players, so the plaintiff agreed to play against the Latrobe Reserves the following Saturday. It was the first game in the NTFL roster for 2004. When going for the ball in the third quarter of the match, the plaintiff suffered a serious injury to his left ankle. The relevant events that afternoon lasted but a few seconds. The trial arising from those events lasted six days. Evidence was given by 15 witnesses. The issues presently for determination are the tortious liability of:
1 The Latrobe Council ("the council") (the first defendant) who owned and maintained the football ground.
2 The Latrobe Football Club Inc ("the Latrobe Club") (the second defendant).
3 The East Devonport Football Club Inc ("the East Devonport Club") (the third defendant).
The plaintiff cannot succeed unless he proves that it is more probable than not that after going for a mark, his left foot landed on, or partly on, a cover ("the cover") placed over a pit dug into the playing surface, at the bottom of which an irrigation tap was installed, and that the cover was not set flush with the surface of the surrounding ground and/or was not level.
The plaintiff
The plaintiff was an experienced Australian Rules footballer. Between the ages of 17 and 32, he played senior football. Due to work commitments, he retired from football in about 1998. Thereafter, he only played in a couple of practice matches until he got the call on 25 March 2004 to play with the Reserves on the following Saturday. After the plaintiff retired from football, he maintained his general fitness by jogging, surfing and skateboarding, but he agreed that on 27 March 2004 he was not what he described as "footy fit". He estimated that his height that day was 5 feet 10 inches and his weight around 75 kilos. I find that the state of the plaintiff's fitness played no part in causing his injury. That was the effect of his evidence and, more importantly, that was the evidence of the orthopaedic surgeon, Professor Einoder.
The council
The council was the owner of the Latrobe Recreation ground, Gilbert Street, Latrobe. 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 this litigation, no distinction need be drawn between the controlling authority and the council.
The uses to which the recreation ground is presently put has remained unchanged for many years. In the summer, the recreation ground is used for cricket, and in the winter, for football. During the football season, the ground is used every second Saturday for the under 19s, the reserves and the seniors' games in the NTFL roster. In addition, it is used for training four nights a week and for school football matches. Described as an excellent ground, the Latrobe Recreation ground is often used for final games. It is also used at Christmas time for a sports carnival. Mr Tuthill, a horticulturalist, is responsible for the maintenance of the ground, except the central wicket area during the cricket season.
On 1 July 2003, the council leased to the Latrobe Club "the function centre, secretary's room and memorabilia room" for four years. It is a somewhat unusual lease, for the playing field is not part of the demised premises. However, cl 9 of the lease requires the council to permit the Latrobe Club to use "the sporting facilities" upon being given one month's advance notice. By cl 12.2, the council agrees to provide "all ground care and maintenance for the sports arenas and facilities as per service agreement". If there is or was a service agreement, it did not form part of the evidence in this case. Clause 14 states that the council is "solely responsible for the main area surfaces, carrying out all the broadleaf spraying, top dressing etc". Mr Tuthill said that he, as team leader for the council's parks and reserves, and the groundsmen at the recreation centre, "were responsible for the upkeep of the grounds and environment within the … rec ground precinct". I so find.
The council imposed an obligation on the Latrobe Club, in common with all other clubs and organisations that use the recreation ground, to complete a "facility inspection sheet" at least 24 hours before the ground is used. The facility inspection sheet lists no less than 76 matters that have to be checked. The form provides a column "OK", a column "NA", and a column "Comments" to be completed with respect to each of the 76 matters. After completion, the form is to be sent to the council.
The football clubs
The Northern Tasmanian Football League is one of three organisations that organise rosters for Australian Rules football games in this State. I gather that all three are associated in some way with the national body, the Australian Football League.
The NTFL organises football matches in the north-west of Tasmania. The roster is drawn up upon the basis that all the clubs will have the same number of "home games". The NTFL expects the home team to ensure that the ground is properly marked out and in a safe condition. At the end of every match a "match envelope" is dispatched to Mr Wotherspoon, the manager of the NTFL. Into the envelope go 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 these arrangements, the teams were obliged to embrace a national risk protection program. That program required the clubs to complete a written Match Day Check List prior to the start of the first match of the day. It contains a number of questions about the playing surface that have to be answered. The checklist has to be signed by a representative of each club and put in the match envelope. The first time this checklist had to be completed was Saturday, 27 March 2004.
Obviously, the Latrobe Recreation ground is, and was, the home ground for the Latrobe Club. Girdleston Park, East Devonport is, and was, the home ground for the East Devonport Club.
The Latrobe Recreation ground
Those witnesses who know the ground generally, spoke highly of its playing surface and general condition. In the summer the goal posts are taken down and the cricket pitches are mown. Mr Tuthill said that the mower is set to mow the grass to a height of about 27 millimetres in the football season and to about 17 millimetres (not including the wicket) in the cricket season. The mowing is generally done once a week, preferably on a Thursday or Friday, ready for Saturday's game. The current procedures for the maintenance and care of the ground have remained unchanged since well before the start of the 2004 football season.
There are five irrigation outlets on the ground. One, set in the ground fairly close to one end of the cricket pitch, is bigger than the other four. Those four are set in the ground, each at a point that roughly equates to about 20 metres in front of the position ordinarily occupied by a pocket back/forward. This case concerns the south-west irrigation point about 20 metres in front of the left pocket back/forward, the position occupied by the plaintiff just before he was injured on 27 March 2004. To his left were the grandstands. Behind him was Gilbert Street.
In common with the three smaller irrigation points, the one in front of the plaintiff was at the bottom of a rectangular hole that had been dug into the playing surface. The hole measures about 200 millimetres by 400 millimetres and is about 350 millimetres deep. At the bottom is an irrigation tap. Placed over and around the tap is a cement sheet box. The box is about the same size and shape as the hole. It has neither top nor bottom. Around the upper edges is a ledge or lip, about 15 millimetres high. The top of the box is closed off by placing a flat, thin metal lid over the top. This lid is held in place by the lip or ledge. There is a hole in the middle of the lid into which a finger can be inserted to facilitate its removal. On top of the lid is placed a piece of wood about the same length and width as the lid of the box and about 20 millimetres deep. A thin layer of soil is placed on top of this piece of wood and finally, a wooden block measuring 395 millimetres by 190 millimetres by 90 millimetres (the cover) is put on top of all this. Three sides of this block are covered by 5 millimetres of astroturf. The idea is that if the hole is filled in in the manner just described, and soil packed around the edges of the block, it will sit flush with the playing surface.
There was a dispute in the evidence about whether, on 27 March 2004, there was a piece of wood underneath the astroturf covered block. There was also a dispute as to whether Mr Tuthill put the soil on top of this piece of wood or directly on top of the metal lid of the box when I went to take a view of the scene, but I do not think that these disputes are of great significance in these proceedings. What is of major significance is whether, on 27 March 2004, the cover was flush with the surface of the surrounding soil or not and, if not, whether the plaintiff landed on the uneven surface and thereby suffered his injury. A great deal of the evidence at trial was devoted to this issue and I shall return to it.
Meantime, it is important to note that according to Mr Tuthill, during the cricket season the covers are taken off and the taps used to water the grass, "two, maybe three times a day", but in the football season, the covers are not lifted at all. The 2003/2004 cricket season ended about three to four weeks before the football match on 27 March 2004.
Did the plaintiff's left foot land on the cover?
The plaintiff does not know where his left foot landed. No witness was able to say that he saw where the plaintiff's left foot landed. In addition to evidence from the plaintiff, six witnesses gave direct evidence of the events in the moments leading up to the accident. It was generally common ground that the ball was in the hands of one of the plaintiff's team mates. The play was on the grandstand side of the wing, generally in about the centre of the oval. The ball was kicked in the plaintiff's direction and he ran forward and to his left or, he ran forward and to his left, making a lead, and then the ball was kicked to him. The plaintiff ran with his hands raised to about, or just above, head height, ready to take the mark. After running about 20 metres, the plaintiff jumped up but was not able to hold the ball. He came down, twisted his ankle, and ended up sitting on the ground facing the direction from which he had come. He was in great pain and distress. Broken bone was sticking out of his football sock. He had to be carried off on a stretcher and taken to hospital. The cover was about 1 to 1½ metres from where he sat and on, or close to, the line along which the plaintiff had just run.
There was a dispute in the evidence about whether a Latrobe player spoiled the plaintiff's mark and therefore perhaps knocked him off balance as he came down to land. I shall deal with that dispute in due course, but meanwhile, turn to the expert medical opinion evidence because the plaintiff relies heavily on this circumstantial evidence to establish that it is probable that he landed on the cover.
The medical evidence
The plaintiff fractured his left lateral malleous, left medial malleous and left tibia plafond. It was a major injury, the fractures being compound and comminuted. The force caused the articular cartilage to fragment. The fractures of the tibia and fibula were openly reduced and internally fixed, the latter with a plate and screws, and the former just with screws. The treating surgeon was Professor Einoder. The council consulted an orthopaedic surgeon from Melbourne, Mr McIntosh. Both gave evidence.
The medical opinions were at one with the proposition that lateral stability of the ankle joint is maintained by the shape of the bony structures and the ligaments. The inside ligament is much stronger than the outside ligament. This and the bony structure of the joint, combine together to make it relatively easy to roll the ankle inwards (inversion), and relatively difficult to roll the ankle outwards (eversion). Thus, if a walker unexpectedly steps on an uneven surface, putting strain on the ankle joint, inversion of the ankle is more likely to occur that eversion. Both may result in the tearing of a ligament and possibly the fracture of a bone or bones depending on the severity of the trauma.
The medical opinions were also at one with the propositions that the plaintiff's injuries were caused by his left ankle twisting out (eversion) when his left foot hit the ground just after missing the mark, and that eversion injuries on the football ground are very uncommon. Professor Einoder said of the plaintiff's fractures, "Well, that sort of injury you see in motor car accidents and such like that. You don't see them at football".
Professor Einoder has had a great deal of experience with sporting injuries and, in particular, football injuries. As well as being the North Launceston Football Club doctor since 1975, he has conducted monthly lectures for a sports trainers' course for 20 years. In 1984 he was awarded an Australian Sports Medicine fellowship for his contribution to sports medicine, and since 1990 he has been involved in a number of international bodies, including the International Sports Injuries Surgeons' and the European Sports Surgeons' Knee Association. It was his opinion that the plaintiff sustained his injury by either landing unpredictably on a predictable surface, or landing predictably on an unpredictable surface.
Mr McIntosh also has had experience with sporting injuries, but not to the same extent as Professor Einoder. Mr McIntosh, now retired, was the North Melbourne Football Club doctor in the 1970s and, prior to his retirement, "treated a lot of sports injuries". He agreed with Professor Einoder that there is a much higher risk of suffering injury if the foot lands on an unpredictable surface than if it lands on a predictable surface. Professor Einoder reasoned that because:
· this was a very severe injury;
· this was an eversion and not inversion injury;
· eversion injuries are very uncommon on the football field;
· the risk of suffering an ankle injury is higher if the foot lands on an unpredictable surface than if it lands on a predictable surface;
· although ankle injuries can occur if the surface is predictable because the foot hits it at a twisted angle or turn, as it might if the player is knocked off balance going for a mark, the structure of the ankle makes it more likely that such an injury will be the product of inversion and not eversion;
· the probabilities therefore are that the plaintiff's injury was caused by his ankle landing on an unpredictable surface.
Mr McIntosh agreed with all of the foregoing, except the last point. His opinion was whether the injury was the result of eversion or inversion depended on the angle at which the ankle hit the ground, and therefore he could not say that it was more probable than not that the plaintiff's injury was caused by him landing on a unpredictable surface.
I accept the submission of Mr Porter QC, counsel for the plaintiff, that there is little, if any, difference between the medical opinions. Both agreed that landing on an uneven or unpredictable surface creates a much higher risk of ankle injury than does landing on a predictable surface. Both agreed that whether there is a landing on an unpredictable surface, or an unpredictable landing on an even or predictable surface, the structure of the ankle is such that an inversion injury is more likely to an occur than an eversion injury. Both agreed that sustaining an eversion injury on the football field is an uncommon event. However, Mr McIntosh would not accept that the probabilities were that the plaintiff landed on an uneven, and not an even, surface. He said that he could not agree that it was more probable than not that the plaintiff landed on an unpredictable surface because it was the angle of contact that dictated whether an inversion or eversion injury is suffered.
I accept that there will be eversion if an ankle hits even ground at an angle sufficiently acute and with a force strong enough to overcome the natural tendency for it to invert. In that sense, I accept Mr McIntosh's opinion that the angle of contact dictates whether the ankle will invert or evert. But the ankle is unlikely to adopt such an angle sufficiently acute to result in an eversion injury without good reason. In this context good reason is likely to be either an unpredictable landing on an even surface due to an immediately preceding unexpected event such as a mid-air tackle or a mid-air decision to change direction of travel on landing, or the pressure created by unexpectedly landing on an uneven surface. If it is accepted that the plaintiff was running for an uncontested mark and did not jump very high before landing, something that happens many, many times without incident in every football game, the probabilities are that he landed on an unpredictable surface otherwise, at worst, he would have suffered an inversion injury and not the massive eversion injury he in fact suffered. I accept Professor Einoder's opinion to that effect.
But was the mark uncontested?
The plaintiff said that he was running in a straight line for the ball. He said that he was not off balance when he went for the mark. He said that he was unaware of the whereabouts of the Latrobe Reserves players, but he was adamant that he just missed the mark, that it was not punched away by anybody and that no one spoiled his attempt to get the ball.
Another East Devonport player, Mr Boon, said that he was standing in front of the goal and the plaintiff was in front of him. He said that the plaintiff ran forward and towards the grandstand to take the mark. He said that there were two Latrobe players in front of him, also running towards the grandstand, but the ball went over their heads. He said that the plaintiff went for the mark but the ball passed through his hands. Mr Boon said that the plaintiff's attempted mark was uncontested and there were no Latrobe players near him, apart from the two over whose heads the ball had passed. He said that the plaintiff fell to the ground and the ball "spilled out". A Latrobe player picked it up and kicked it away.
Mr Johnson was playing in the centre for Latrobe. He said the ball was kicked towards the half forward flank position on the grandstand side of the ground and the plaintiff ran for the mark. Mr Johnson estimated that he was about 50 metres away from the plaintiff when the latter started to run. Mr Johnson said that he also started to run for the ball and as he did so, he saw another Latrobe player, Mr Smith, running behind the plaintiff, trying to catch him. Mr Johnson said that the ball hit the plaintiff's hands and went behind him. At that moment, Mr Smith was still a few metres from the plaintiff. He, too, said that no one punched the ball away and no one contested the mark.
Before referring to Mr Smith's evidence, it is convenient to turn to the evidence given by the witnesses who were watching the match. The plaintiff's brother, Mr Darren Williams, was one of them. He said that he was sitting in the grandstand and had a clear view of the events. He saw his brother run for the mark. He said that there was no other player in his immediate vicinity as his brother tried to take the mark. He denied that any other player spoiled the mark by punching it away.
Mr Jackson was a Latrobe Club committee member. He watched the Reserves game on the afternoon of 27 March 2004. He said that as the plaintiff ran for the mark, Mr Smith was running behind him. He said that Mr Smith was about five metres behind the plaintiff when the ball was in the air, but by the time the ball reached him "[Mr Smith] wasn't that far away. He had his fist in the air". Mr Jackson said that Mr Smith was very close behind the plaintiff when he had his fist out and he punched the ball. Mr Jackson explained that from where he was watching the play, Mr Smith was directly behind the plaintiff and he was not able to see whether there was any physical contact between the two players.
Mr Jaffray was the recreation ground caretaker employed by the council. He, too, watched the Reserves game on 27 March 2004. He said that the plaintiff was "leading out" as the ball was kicked and he had "a bit of a break on our [Latrobe] backline player". Mr Jaffray could not actually remember who that backline player was, but agreed that it was probably Mr Smith because he usually played on the backline. He said that he saw the plaintiff go up for the mark and then fall to the ground. He said that he thought the plaintiff took the mark. He said he did not see the ball punched away, nor did he see any player contest the mark.
In his evidence-in-chief, Mr Smith said that he was standing on the centre halfback line when he saw the ball kicked towards the plaintiff and the plaintiff running to get it. He said that he, too, ran towards the plaintiff with the intention of getting or spoiling the mark, but got no closer than about two metres from the plaintiff. However it appeared that on 7 July 2005, a little more than a year after the plaintiff suffered his injury, Mr Smith made a written statement to a loss assessor. In it he said:
"I was not Mr Williams' direct opponent at the time of the incident. However, I was positioned in the Latrobe defensive area when the ball was kicked to Mr Williams. I ran generally west along the ground to contest the mark with Mr Williams. Mr Williams had the front position, however I was able to spoil the mark. I arrived at Mr Williams in time to punch the ball away from him. …
I do not recall any other players being in close proximity to the incident. The incident occurred a short distance north of the 50 metre arc at the Gilbert Street end."
Mr McElwaine, counsel for the council, cross-examined Mr Smith upon the basis that his evidence-in-chief was deliberately false. I do not accept that inference at all. Mr Smith said that although he and the plaintiff were friends through football, they were not close friends. After the statement had been put to him, Mr Smith did not quibble with its contents and answered the questions asked in cross-examination in a frank and straightforward manner. He agreed that he must have punched the ball away, but steadfastly maintained that he did not make contact with the plaintiff. Neither the statement to the loss assessor, nor his evidence contained a statement to the effect that he made any physical contact with the plaintiff. I regard the difference between the statement and the evidence-in-chief concerning whether Mr Smith actually punched the ball away, to be a difference arising out of faulty memory and not due to a desire to tell deliberate untruths. However, the difference means that little weight can be placed on the critical part of either the statement or the sworn testimony.
In any event, there was no evidence from either players or spectators that any other player made physical contact with the plaintiff as he was trying to take the mark, such that might upset his balance and be likely to cause him to land awkwardly or unpredictably on his left foot. Mr Smith agreed with Mr McElwaine that even without physical contact, punching away the ball just before a player is expecting to take a mark can, "on rare occasions" distract the player and cause him to land in an unplanned way. However, with respect to this idea, Mr McElwaine put this question to Professor Einoder and got this reply:
"If your assumption about being clear of other players was wrong and if there was another player who spoilt the mark that would make a difference wouldn't it? ….. Not a lot, because in this situation it's the mechanism of injury. He had the wrong injury for somebody who would be knocked over or had to change direction or suddenly do something. He had a medial side injury, an eversion injury, which is very uncommon and inversion injury is, as I said before, very common the commonest ankle [sic] is rolling your ankle with or without the avulsion fracture."
I find that the direct evidence from the players and spectators supports the inference the plaintiff seeks to draw from the circumstantial medical opinion evidence that the probabilities are that the plaintiff landed on an uneven surface.
What was the state of the cover?
At the request of the solicitors for the council, Mr Tuthill removed the cover from the ground, put another in its place and brought the original to Court. It was put in evidence as Exhibit D5. There was no evidence about whether the astroturf on D5 was in about the same condition as it was on 27 March 2004. Suffice to say that I find the upper surface of the astroturf cover to be quite hard and unlike grass cut to a length of about 27 millimetres, so that if the top of the cover was set any distance below the level of the ground, as opposed to below the top of the nearby grass, there would be a height differential between two hard surfaces. Professor Einoder said that such a differential need only be half a centimetre to cause an eversion injury.
Because of the severity of the plaintiff's injury and because of the immediate proximity of the cover to the point of injury, suspicion immediately fell on it as being the cause of all the trouble. However, it must be said at the outset that all the evidence leads to the making of a finding that to the knowledge of all those who gave evidence, none of the covers on the Latrobe Recreation ground had caused, or been suspected of causing, any injury prior to 27 March 2004.
Immediately after the fall, Mr Boon ran past the plaintiff and called for an ambulance. He said just after he had done that he had a quick look at the cover and noticed it was not level with the ground. Either after the Reserves game, or after the following Seniors game that day, Mr Boon and the plaintiff's brother walked onto the ground and looked at the cover. Mr Boon described the top of the cover as being one to two inches below the surrounding soil. He said that he pulled back the grass that was hanging over the edges of the cover and showed the plaintiff's brother "the water that goes around it". He took a photograph of the cover with his mobile phone, but unfortunately it no longer exists. The plaintiff's brother confirmed that he went with Mr Boon to inspect the cover, but curiously no evidence was led from him with respect to what he saw on that occasion.
Because of the suspicion that had fallen on the cover, Mr Jaffray went to look at it after the game as well. He said that he "basically walked out, had a bit of a look, and just stepped around the cover to see if it was secure". He said that he put his foot on it, and around it, and he thought to himself, "well that's where it's been as long as I can remember, like where it was". In cross-examination he was asked (quite properly) a leading question whether he used his foot to check whether the top of the cover was level with the top of the soil. He said, "Yeah, well that's how you do it, like – yeah – yep". I have no confidence in that answer. The probability that arises from the whole of Mr Jaffray's evidence on this issue is that he checked to see if the astroturf covered block was stable, not to see if it was set a short distance below ground level. I should interpolate that during the trial the plaintiff expressly abandoned an allegation that the cover was unstable at the time of his accident.
Mr Johnson said that after the plaintiff had been taken from the ground, he and another player walked over and looked at the cover. He said that one edge of the cover appeared to have lifted up two or three millimetres and there was fresh grass lying on it. He estimated that the top of the cover was about an inch or an inch and a half below the level of the soil.
Mr Smith said that immediately after the plaintiff had injured himself, he looked at the cover. It did not appear to him to have been dislodged in any way, and seemed to be in its normal position.
That is the evidence concerning the state of the cover immediately after the plaintiff's accident. However, there is evidence concerning the state of all the covers prior to the start of the first game played on the recreation ground on the day of the plaintiff's accident. On the Wednesday before the game, Mr Jackson completed the Facility Inspection Sheet. Question 20 asked, "Oval surface fit for purpose?" and question 23, "Water tap holes covered and padded?" There is a tick in the "OK" column next to both items. In his evidence, Mr Jackson explained that his routine was to start by checking the padding on the goal posts and then go to a nearby cover. His inspection continued around the various parts of the ground and buildings, and included all five covers. The following is taken from Mr Jackson's evidence-in-chief:
"When you got to that irrigation cover what did you do? ……. I usually put my foot on them to see if they moved, see if they were rotten or the covering had come off, anything like that, and then I'd go on to the next part and -
Did you make any observations about the level of the cover? ……. They all were level with the playing surface but they appeared to be lower because of the grass.
Okay. Can you make a comment about the difference, if any, between the top of the cover and the top of the soil, base of the grass? …… No, that was always level.
And that was for the south eastern corner? …… All, the whole five."
In cross-examination by Mr McElwaine, Mr Jackson was asked and answered:
"And did you particularly look for any difference in level between the sprinkler pit cover and the surrounding soil, was that something you looked for? …… Well I always, as I said before, I always put my foot on the cover to ensure you know it didn't move and all that.
Yeah. …… And also when you looked at the covers as you got closer they appeared that they were lower than the ground.
Yeah. …… But actually they was the same level because the grass was always higher.
Ah, so was there a visual illusion, you'd look at it and you'd think it was a hole, would you? …… Yes.
Right. But on closer inspection you found out what? …… The cover was level with the ground.
Right. So the hole appearance was caused by the length of the grass, was it? …… Yes.
Right. Had that ever fooled you in the past, that you thought there was a hole until you went up and had a closer look? …… It did the first couple of times I done the inspection, yes."
However, this exchange occurred during cross-examination by Mr Porter:
"Now when you approached it, each cover, and put your foot on it, it just looked like it normally did? ……. Yeah.
So you didn't take too much notice to actually check the soil level as against the tap – the top of the cover? …….. I knew that the heights never changed.
You knew that? ……. Yeah.
And did you measure it? …….. No."
It is apparent from the passages that I have set out that Mr Jackson simply followed a routine of walking around and looking at the covers from a standing position, putting his foot on them to test their stability and moving on. He did not say that he was aware that it was important to check carefully to ensure that the covers were completely level with the surface of the ground. This is something that could only be done properly by getting down close to the ground, or feeling with the hand. I infer from what Mr Jackson did say that he realised it was important that the covers were stable and this he checked by putting his foot on them. The last passage in his cross-examination that I have set out leaves me with no confidence in his evidence that prior to the first match played at Latrobe for the 2004 NTFL season, he properly or adequately checked the level of the top of the cover with the surface of the surrounding soil and found them to be the same. For the same reason I have no confidence in Mr Jackson's evidence that he was aware of a visual illusion created by the height of the grass.
Mr Brett was the team manger for the Latrobe Under 19 team that played the first game on the recreation ground on 27 March 2004. He was responsible for completing the NTFL Match Day Check List. Shortly after 8am that day, Mr Brett armed himself with a blank copy of the check list, walked to the various points indicated on the list and ticked them off. Relevantly the check list asked, "Is the surface in good condition? (grass length, free of holes)" and "Are sprinkler covers correctly in place?" and Mr Brett ticked "Yes" for both questions.
As to the covers, Mr Brett said that he walked up to each cover "and simply looked at them". He said "I didn't make any close physical examination, just walked to them and made a visual inspection of the covers". He said that the covers appeared to be intact, even and level and that he was looking to see if they were "askew or cocked up". I accept Mr Brett's evidence, but find that his inspection would not necessarily reveal whether the top of the cover was level with the surface of the surrounding soil.
The cover was also inspected on the day after the match, firstly by the plaintiff's brother and secondly by Mr Jaffray. Mr Darrel Williams said that as a result of a phone call to his brother, then in hospital, he returned to the ground on Sunday 28 March 2004. He took eight photographs of the cover. They became Exhibit P12. Mr Darren Williams said that he put his hand on the cover and it "seemed to be rocking down both sides to an extent". He got down onto his hands and knees and "got [his] head down as close [sic] and had a look at the lay of the land". He said that the cover appeared to be lower than the surrounding ground by about a centimetre or two. I have carefully looked at each of the eight photographs, but because of the growth of grass around the edges of the cover, I cannot say that they do or do not depict that the covers are set about a centimetre or two below the surface of the surrounding soil. The photographic evidence is completely equivocal.
Mr Williams' inspection and photography was observed by Mr Jaffray who was at the ground clearing up after the previous day's football matches. He went onto the ground and over to the cover after Mr Williams had left. He put his foot on the cover and looked at it and decided "everything's okay".
Mr Tuthill said that he heard about the plaintiff's accident about 9am on Monday 29 March 2004. That day he took two photographs of the cover. They were tendered in evidence, Exhibit D7. A groundsman, Mr Burke, was with him when the photographs were taken. Mr Burke is no longer employed by the council, lives in Surfers Paradise and did not give evidence. Mr Tuthill said that both he and Mr Burke jumped on the cover, "ran on it, tried to jump on the edges and the corners a bit to see if it would move and it wouldn't move". He also pressed on the cover with his hands to see if it would "flip up one end", but it did not. He was asked about his observations with respect to the way the cover fitted in the hole and he said:
"It was just in exactly the same condition that it was always in. There was no looseness. I mean the grass had grown out over the top of it. This pit cap – cover hadn't been used for anything up to six weeks."
He was asked:
"Did you observe any difference, or any gaps, between the edge of the block and the surrounding soil? …… No, there were no – there was no gap.
Right. What observations, if any, did you make about the height of the block; firstly, relative to the surrounding soil? …… The block was at soil level, where your grass – where your grass – the heart of the grass starts, from basically grass to soil level was flush.
And secondly, what observation, if any, did you make about the height of the block relative to the surrounding grass? …… The top of the block was a little bit lower than the grass. But then there's not much you can do about that, because the grass grows and the block doesn't."
As was the case with Mr Darren Williams' photographs, I found the evidence in Exhibit D7 completely equivocal.
Photographs of the cover were taken by the plaintiff on several occasions between 14 April 2004 and 3 November 2006 but I do not find that they assist me in determining the relative heights of the top of the cover and the surrounding soil on 27 March 2004. Some of the photographs were taken during the cricket season. I was told that the covers are taken up and replaced up to 20 times a week during the cricket season so that the ground can be watered. Several witnesses were asked to examine the photographs and express opinions about what they depicted, but I found none of that evidence of any assistance.
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.
It seems to me obvious that because:
· the bottom of the box sits on the soil at the bottom of the pit;
· a thin layer of soil is spread either on top of the lid on the box, or on top of a piece of wood placed on top of the lid;
· the cover is then placed on top of the piece of wood or thin layer of soil; and
· soil is then packed down around the sides of the cover
it would be 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 are 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 that was flush with the surrounding soil. Rain may 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 on top of the lid. Further movement may occur if a period of warm weather follows a period of rain or if a tractor is driven over the cover and so on.
I do not have a lot of confidence in Mr Tuthill's evidence. I found that he was, as Mr Porter put to him, defensive about the allegations made in this case. Naturally, Mr Tuthill did not give evidence until after all the plaintiff's evidence had been called. He sat in the Court throughout all that evidence and when it was his turn in the witness box, showed a readiness to quickly refute anything that might remotely suggest that the top of the cover was not flush with the surrounding soil on the afternoon of 27 March 2004. It was suggested to the plaintiff's brother in his cross-examination that at the time he took the photos of the cover the day after the injury, he took the cover off the pit. He denied doing this and I accept his evidence to that effect. There would have been no reason for him to take the cover off and certainly no reason for him to try and alter the scene as he saw it that day.
With perhaps one exception, Mr Tuthill was not prepared to accept that the photos that Mr Darren Williams said he took of the cover near where his brother fell, were of that cover. It is difficult to see why he took this stance as it was not put to Mr Darren Williams that the photographs that he took the day after the accident were not photographs of the cover close to where his brother was injured. When he was asked to assume that was the case, Mr Tuthill suggested that if one looked at the grass in one of the photos and compared it with another photo, it could be discerned that the cover had been lifted and replaced. The photos he referred to did not support his theory. When it was suggested to Mr Tuthill that if there was any difference between the two photos as he suggested, the explanation might simply be that the grass had been pulled back a little to see the cover more clearly, he said that this possible but added, "the way the grass is splayed back and the dirt is – the grass has been pulled up and has not been moved is consistent with the pit cover being tampered – well not tampered with, but lifted or partly lifted …". This indicated to me that he was clearly of the opinion that Mr Darren Williams had told untruths about not lifting the cover, and that his lifting of the cover constituted "tampering" with it. The basis for this assertion by Mr Tuthill was no more than his observation of two photographs.
With respect to the routine that he and the groundsmen followed, Mr Tuthill said that "we always make sure that it's at soil level round the edge of the pit cover." Shortly afterwards he was asked about movement in the covers after they had been replaced and he said:
"… the only time there's - there's movement in the cover is after you've removed it to - to do watering. … And you always check it when you pack the soil back down around it after you put lid back down to make sure that it's at soil level, you always check to ensure that there's no movement in the cover and to keep putting the soil in around the edge to get it up to soil level until there isn't any."
It is difficult to see how packing soil around the edges of the cover will bring it up to soil level or if it does, how that will enable it to remain level with the surrounding soil. When I went on a view, albeit in the middle of the cricket season, the top of one of the covers (not the one near where the plaintiff suffered his injury) was clearly a substantial distance below the level of the surrounding soil. When I raised this with counsel, Mr Porter put to Mr Tuthill that at the time of the view one of the covers was 50 to 60 millimetres below ground level. At first Mr Tuthill disagreed, but when asked if he disputed that there was at least some height differential, he said, "To be honest with you, I didn't really take a lot of notice. I just showed everyone where they were and walking." Such an approach is not consistent with his contention that it was important to him that the covers were always placed so that they were level with the surrounding soil and care was taken about that. I do not accept Mr Tuthill's evidence where it is in conflict with that given by the plaintiff's brother.
The only witness who made a careful examination of the relative levels of the top of the cover and the surrounding soil was Mr Darren Williams. I found him a careful witness. His evidence is corroborated in part by Mr Boon, who was present with Mr Darren Williams immediately after the match. I find that at the time the plaintiff suffered his injury, the top of the cover was at least half a centimetre below the level of the surrounding ground.
The findings I have made with respect to the expert medical opinion evidence, the finding I have made about the relative levels of the top of the cover and the surrounding soil on the day of the match, the immediate proximity of the cover to the plaintiff after he suffered his injury and its location in approximately the path that he had run, together lead to the conclusion that it is more probable than not that the plaintiff suffered his eversion injury 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 injury.
Duty of care
Adapting the opening paragraph of the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 to the facts of this case, it can be said that according to Lord Atkin's statement of principle in Donoghue v Stevenson [1932] AC 562 at 580, as it has been refined in later decisions, prima facie a duty of care arises on the part of each defendant to the plaintiff because there existed between them a sufficient relationship of proximity, that a reasonable council, and a reasonable football club in the position of the defendants, would foresee that carelessness on their part may be likely to cause damage to the plaintiff.
This proposition holds good notwithstanding the demise of proximity as a conceptual unifying factor in the tort of negligence. See Modbury Triangle Shopping Centre Pty Limitedv Anzil (2000) 205 CLR 254 at 274 – 275; Sullivan v Moody (2001) 207 CLR 562 at 578. It was not contended to the contrary on behalf of any of the defendants.
Standard of care
The content, or standard of that duty of care, was a matter of contention. The lodestar to guide judicial determination of this issue remains the following oft quoted passage from Mason J's judgment in Wyong Shire Council v Shirt at 47 – 48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
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.
Was the council in breach of its duty of care?
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.
Mr Roberts is the groundsman at Girdleston Park. For 32 years he has followed this procedure every football season. There is only one irrigation point on the playing surface at Girdleston Park. Mr Roberts said that at the end of the cricket season each year he removes the astroturf covered block of wood and places a piece of plastic over the lid of the box covering the irrigation tap. He then fills the hole with dirt and sows it with grass seed. During the cricket season, Mr Roberts adopts the same procedure as the council adopts at its recreation ground. He said that the cricketers know the hole is there because they use it to put their hats in. He added, "And then the football come along [sic] and they don't know its there, (indistinct words), if they fall on them – if I left the other one there they fall on it they'd get injured."
Mr Fiddler is the curator at the Devonport Oval. He has been there for 11 years. This oval is, and has for years, been used in much the same way as the Latrobe Recreation ground is, and was, used. There are three irrigation taps set in pits in the Devonport Oval. For the football season, Mr Fiddler adopts the same procedure for each hole as does Mr Roberts for the single hole at Girdleston Park, except that sometimes a filled hole is topped with a piece of cut turf and not sown with grass.
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 Girdleston 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.
Were the Football Clubs in breach of their duty of care?
The Latrobe Club had a contract with the council. Although there was no service agreement in evidence, it was clear that the Latrobe Club relied upon the council to maintain the surface of the ground so that it was safe to play football on and the council accepted that it had that responsibility. The particulars of negligence pleaded against all three defendants are that they:
"(a)failed to ensure that the ground was safe and in a reasonable condition for the purpose of playing football;
(b)failed to ensure that any sprinkler or tap covers on the playing surface of the ground were correctly fitted;
(c)failed to ensure that the level of the sprinkler or tap covers was the same as the immediately surrounding playing surface;
(d)failed to cover the sprinklers or taps present on the ground with soil and grass or such other means so as not to pose a foreseeable risk of injury."
Particular (d) is not made out against the East Devonport Club. It encouraged the plaintiff to play on the council's recreation ground in the first of a regular series of games organised by the NTFL. It had no proprietary interest in the recreation ground and no obligation to maintain it. Even if the East Devonport Club had foreseen the risk of injury arising from the height differential between the top of the cover on which the plaintiff landed and the surrounding soil, it would not have been expected to cover the holes as pleaded in particular (d). I think the same can be said with respect to the Latrobe Club.
The evidence was that on the Wednesday before the match, Mr Johnson, committee member of the Latrobe Club, inspected the ground, including the cover. Mr Brett inspected the ground, also including the cover, on the morning of the day that the plaintiff was injured. There is no evidence that Mr Brett was a committee member of the Latrobe Club, but he completed the Match Day Check List and it is a reasonable inference to draw that he did so at the request of the Latrobe Club, as the NTFL imposed the obligation to inspect and complete the form on each club playing in the match.
Mr Brett said, and I find, that he could not locate a representative from the East Devonport Club until after the Under 19 game was over. I find that the Latrobe Club inspected the ground, including the cover, but the East Devonport Club did not. In accordance with my earlier findings, I find that the Latrobe Club inspection was insufficiently thorough to detect the height differential which I have found existed and resulted in the plaintiff suffering injury.
Accordingly, particulars of negligence (a) and (c) are made out against the Latrobe Club, for 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. I have not made a finding with respect to particular (b) because the expression "correctly fitted" is vague and does not, in any event, seem to add anything to particulars (a) and (c).
Was the East Devonport Club in breach of its duty of care?
The plaintiff's claim that the East Devonport Club was in breach of its duty of care can be made out only if he can establish in the first place that a reasonable club in the position of the East Devonport Club would have inspected the ground before the match was played. In my opinion, the hypothetical reasonable club would have inspected the ground before the match was played. I base this conclusion largely upon evidence to the effect that by circulation of a written booklet to each club immediately before the commencement of the 2004 roster, the NTFL instructed each club to make a ground inspection and complete the Match Day Check List before playing a match. It is true that the context of the instruction was a new insurance arrangement, but the booklet makes it clear that the inspection has to be done to minimise the risk of injuries.
It follows that had the East Devonport Club made the inspection it should have made, it would have detected the height differential and asked the council to eliminate it. Its failure to do so constituted a breach of its duty of care to the plaintiff and caused him to suffer loss, injury and damage.
There will be judgment for the plaintiff against the defendants for damages to be assessed.
Contribution
The council and the football clubs have exchanged notices of contribution. There are no such notices as between the football clubs. Obviously the greatest share of responsibility falls upon the council and I would assess that share at 85 per cent. In view of the absence of notices of contribution between the football clubs, I would like the assistance of counsel before formulating final orders pursuant to the claims for contribution.
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