Woods v Multi-Sport Holdings

[2000] HCATrans 488

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P22 of 2000

B e t w e e n -

MICHAEL BRETT WOODS

Applicant

and

MULTI-SPORT HOLDINGS PTY LTD

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 9.42 AM

Copyright in the High Court of Australia

MR B.S. SPINKS:   If the Court pleases, I appear for the applicant.  (instructed by Marks & Sands)

MR R.J.L. McCORMACK:   May it please the Court, I appear for the respondent.  (instructed by Srdarov Richards Burton)

MR SPINKS:   Your Honours, my special leave application relates to the way in which the standard of care is assessed in cases of negligence against an occupier.  The Full Court over here has adopted a principle, allegedly, purportedly set down by his Honour Justice Kirby, which states that, “where a risk is obvious to an entrant, there will never be a duty to warn that person of the risk”.  I say that is an incorrect assessment of the law which, on its own, is probably not enough to grant special leave, but having regard to the fact that the Full Court here in Western Australia has applied that principle on three occasions, incorrectly, I think it is appropriate that the matter be assessed and corrected.  The correct way of assessing the ‑ ‑ ‑

KIRBY J:   The observation in Romeo was said in the context of the duty of the entrant upon a public space, where the case mounted was that you had to warn a person who was entering the premises, put a sign up, although the person was intoxicated.  You have to read judicial observations in the context in which they are said.

MR SPINKS:   That is correct, your Honour, but the Full Court has adopted that statement as a principle of law, which they then apply and disregard other factors which may be relevant in determining whether a warning should be given.

McHUGH J:   The Court arguably seems to have taken the view that the risks which are obvious are to be regarded as inherent in the activity, in this case the sport or pastime, but a risk is not inherent in any activity unless it cannot be avoided by the exercise of reasonable care.  If a risk can be avoided by the exercise of reasonable care, it is not inherent.

KIRBY J:   But your client was a passionate cricket star, and it is not likely that he would be very much helped by a little sign saying, “Be warned, playing internal cricket can be dangerous”.  I mean, really, let us be real.

MR SPINKS:   That was not the warning that we requested.  We requested a warning that there was a risk of serious eye injury in indoor cricket and that was found to be ‑ ‑ ‑

KIRBY J:   You say that a person who is playing internal cricket has to be told that?

MR SPINKS:   What I am saying is ‑ ‑ ‑

KIRBY J:   Every schoolboy in Australia knows that.

MR SPINKS:   Yes.  What I am saying is that if we are going to lay down a standard test that where a risk is obvious there is not a duty to warn, that test is incorrect.  In the circumstances of this case, and the factual matrix and the final analysis, your Honours may find that, but that would require an analysis of the facts.  When you look at the facts and look behind what this organisation actually was, it was a corporation who conducted this game for profit only, it was not there ‑ ‑ ‑

KIRBY J:   Yes, we know all that, but we would not look into a test on the basis that it was not going to lead anywhere.  It would seem to me that the better argument you had would have been about providing people playing, at least in some positions, with a helmet or with goggles or some other means of protection against the particular risk of this particular type of ball used in indoor cricket.

MR SPINKS:   Your Honour, the reason I stayed away from that was it would have involved the re‑examination of the facts.  I mean, the point that we had objection to in that respect was that this defendant was a corporation who, in concert with a number of other corporations, had formed a body to further their own commercial interests and called it the Western Australian Indoor Cricket ‑ ‑ ‑

KIRBY J:   It is not an evil thing to be pursuing your commercial interest.  That is the whole point of our economy.

MR SPINKS:   That is right, but the problem was when they made the rules up about what could and could not be worn in indoor cricket, they, in effect, modified the standard of care by reference to the rules they made up for themselves.

HAYNE J:   Let us just understand this.  This is a claim founded on the status of occupier, is it?

MR SPINKS:   Not solely.  It is also founded on the liability of the defendant in its capacity as the organiser of this event.

HAYNE J:   Because the Full Court appears to have treated it as a case of breach of statutory duty, the statutory duty being that imposed by the Occupiers Liability Act.  Is that right?

MR SPINKS:   They did, your Honour, but I think the Full Court has held it is just a codification of the common law principles and that is why they refer back to the common law cases like Romeo.

HAYNE J:   Whether or not that is right, under section 5(4) of that Act, one of the matters to which consideration shall be given in determining whether an occupier has discharged his duty of care is:

(f)  the ability of the person entering the premises to appreciate the danger;

Do you say then that that is, in the circumstances of this case, a matter which should not be taken to account, or do you say it was simply wrongly taken to account by the Full Court?

MR SPINKS:   I am saying that it was a matter that should have been taken into account, but in concert with a number of other factors, like:  he was a contractual entrant; the risk was well known; it was an environment where someone was likely not to have regard for their own safety; they are turning up, they are in an environment with a lot of men, enthusiastic about getting into the game, they have paid their money, they are about to embark on the endeavour, and they may fail to take care for their own safety.  This test which was applied prevented the Full Court from examining all those other factors, which ‑ ‑ ‑

McHUGH J:   Which is the passage you refer to, Mr Spinks?

MR SPINKS:   It is a passage in Romeo v Conservation Commission, Justice Kirby:

Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.

KIRBY J:   But you yourself just said that the risk was obvious.  What is the point of putting a sign up to warn people of a risk that is obvious?

MR SPINKS:   I am not conceding that it was obvious.  I say that the risk of being hit with the ball was obvious.  Her Honour, in fact, found, as a matter of fact, that my client was not aware of the higher risk involved in indoor cricket because of the nature of the ball.  My client did not understand that this soft ball could mould into your eye.  Whether a risk is obvious, really requires an examination of whether the person was aware of the probability of the occurrence of the accident.  I think “risk” is defined in the dictionary as “chance of a bad event”, and chance is defined in terms of probability or possibility.  So the mere fact that someone knows that they could be hit with a cricket ball does not necessarily mean they understand the risk of being hit with a cricket ball.

What your Honour says in Romeo is, “Where a risk is obvious”, so it is the risk itself, not the occurrence of the accident.  If I went parachuting, I may know that I could fall out of a plane and the chute would fail, but unless I knew that one in every five chutes failed, it could not be said that I knew the risk.

KIRBY J:   You say if you are in the business of parasailing or a parachute enterprise, that you have some extra obligations because you are doing that for profit and you are deemed to have higher knowledge and you should protect people, or at least warn them of that risk.

MR SPINKS:   Yes, but more importantly, your Honour, I say that the principle is incorrect.  To lay down a general principle that if a risk is obvious, which I do not concede it was in this case, because her Honour found as a question of fact that it was not, it is a matter, as Justice Hayne correctly pointed out, that is taken into consideration with a number of other factors.  It is not a ‑ ‑ ‑

McHUGH J:   Yes, but in the context we are talking about giving a warning.  The argument against you is that where a risk is obvious to a person, exercising reasonable care for his or her own safety, then it is not negligent not to give a warning.  I mean, one may have other grounds for making out a case of negligence, but not a warning ground.  For example, although the risk may be obvious, the defendant may have failed to provide precautions to avoid the risk, or equipment to avoid the risk, but that is a different matter from requiring a warning.

MR SPINKS:   Your Honour, in the decision of Nagel it was found that you must take account of the fact that someone may not take reasonable care for their own safety.  It maybe children.  It maybe a schoolchild.  There may be a risk that is obvious but because of the nature of their very nature, they disregard obvious risks and a warning may alert them to the fact that the risk is there.  So all I am saying is you have to look at something more than the nature of the risk itself.  You have to look at all the circumstances of the case, which did not occur in this case and is not occurring in subsequent cases.

KIRBY J:   Was there any evidence in this case of previous accidents of a similar kind?

McHUGH J:   Yes, there had been 38, or something, had there?

MR SPINKS:   Yes, a lot of evidence.

KIRBY J:   And were they because of the particular qualities of the ball?

MR SPINKS:   There was evidence directed towards that.  It was because a hard cricket ball fractures the bone, whereas the soft one goes inside like a squash ball and ‑ ‑ ‑

KIRBY J:   Is your notice point that the company running for a profit had knowledge of this and of its peculiarities and that ordinary cricket players, or cricket lovers, may know that there is a danger in balls but would not know there is a particular danger in this particular type of ball?

MR SPINKS:   That is correct.  Your Honour, the trial judge got around that by saying that even though the plaintiff was not aware of the nature of the ball, neither was the defendant.  Our submission was that that was an incorrect test, because the defendant’s ignorance of the dangers in itself cannot be determinative.  It is whether he knew or ought to have known.

We say, having regard to the efforts of the medical profession here in Western Australia, visiting indoor cricket centres, trying to bring this matter to the attention of the public, that they ought to have known.  Her Honour never went into that.  She just left it at the defendant did not know so they should not have warned.  That matter was raised before the Full Court, but they did not deal with it in their decision.

KIRBY J:   The previous incidents had not involved this respondent.

MR SPINKS:   In their evidence they said they were aware of previous incidents of eye injury at their centre.

McHUGH J:   I said 38 eye injuries, but now I recollect that the 38 eye injuries were recorded in a register over a six-month period in 1988/89 by the optometrist, but they were a combination of squash and indoor cricket, were they not?

MR SPINKS:   I think squash was the highest with 14 and indoor cricket had 13.

McHUGH J:   That was in a six-month period, so it is obviously quite a significant risk of injury.

MR SPINKS:   That is right.  So there is a good prospect of success if the error is corrected in so far as the Court acknowledges that it is not the actual knowledge ‑ ‑ ‑

KIRBY J:   Look at the causation question.  Do you think that it is realistic to assume that if your client had seen a warning on the noticeboard as he came in that this enthusiast for indoor cricket would have been put off by the fact that it said, “Be warned, there are some special dangers of the balls used in indoor cricket”?

MR SPINKS:   Your Honour, that was his evidence.

KIRBY J:   Yes, I know.  That evidence is given in almost all of these cases, but it seems a little unrealistic.  It is like the notice on the cliff face, or even the notice in Nagel.

MR SPINKS:   Interestingly, your Honour, in your decision in Romeo you did not decide on the question of causation, but you said that had you had to decide on it, it would not have stood in your way of finding for the plaintiff.

KIRBY J:   Anyway, you lost on this point.  You did not get to the causation point.

MR SPINKS:   That is right.

McHUGH J:   The trial judge accepted you.  Did Judge French accept the plaintiff on this issue?  The plaintiff said he would not have played, did he not, if there had been a warning sign?

MR SPINKS:   She did not accept that.  There was an allegation on behalf of the defendant ‑ ‑ ‑

McHUGH J:   She accepted he would have worn safety equipment if it had been provided.

MR SPINKS:   Yes.

McHUGH J:   What about this ‑ did she make a finding about that?  I just cannot recollect.

MR SPINKS:   No.  The issue was confused for her Honour because the defendants alleged that there was a sign fixed to the indoor cricket net which said players play at own risk.

McHUGH J:   And her Honour held that there was not a sign at the relevant time.

MR SPINKS:   She said that sign was not there, but she said had he seen that sign, that that sign would not have prevented him from playing indoor cricket.  But that was not a sign of a warning.  It was just trying to imply some contractual term into the contract between the parties, I presume, or exculpate themselves from liability.  It did not warn the person of the risk.  So she did not make a finding.

McHUGH J:   I had the impression from reading her Honour’s judgment that at the trial it was not part of your case that there should have been a warning sign about eye injuries.  Am I right in thinking that?

MR SPINKS:   No, it was on the pleadings, it was a part of our case, that a specific warning ‑ ‑ ‑

McHUGH J:   But was it run in evidence?

MR SPINKS:   Yes.

KIRBY J:   Was there any evidence of warnings of the kind you suggest in other establishments or after the injury to your client?

MR SPINKS:   The court did have a witness before it called by the defendant who said that he did not want to put a warning in his indoor cricket centre because it may have a scaring effect.  No doubt, when you are competing for the consumer dollar in the recreational services business, you do not want to scare off your clients.  So there was a lot of evidence on warnings.

HAYNE J:   Can I understand then what findings of fact made by the trial judge would you pray in aid for a contention that liability should have been found?

MR SPINKS:   Firstly, that my client did not know of the increased risk of serious eye injury as a result of the ball.  Her Honour failed to determine whether the respondent ought to have known of the increased risk.  She just merely said they did not know, so it was not reasonable for them to warn, which was an error in itself.  The other factual matters that are important, I think, were that our client had only played one other game of indoor cricket.  He was a contractual entrant.  There was a high degree of probability of the injury occurring.  Her Honour found ‑ ‑ ‑

McHUGH J:   It was not a higher degree of probability.  There were, what, 13 injuries from cricket and, what, there were 12,500 people registered?  So there would be many thousands of games played to give rise to those risks of injury.

MR SPINKS:   I think the thing is, your Honour, that was only serious eye injuries and they were the only ones recorded.  The point was made that it

may not necessarily be a record of all eye injuries.  It may be a reasonably accurate record of the serious ones.

HAYNE J:   But you in your draft notice of appeal say that you seek an order for judgment in favour of the plaintiff.

MR SPINKS:   Yes.

HAYNE J:   Therefore, presumably, you assert that there are findings of fact sufficient to warrant and judgment going.  I do not understand at the moment that there are findings of fact enough to warrant judgment on your argument.  Your argument seems to speak in terms more consistent with “send it back for retrial for further findings”.  Am I mistaken?

MR SPINKS:   Your Honour, it was found there was a duty of care.  It was found that our client was not aware of the increased risk of injury.  No finding was made with respect to the warning, so in that respect an examination would have to be made as to whether the warning would have, in fact, deterred our client.  So that would be the only question which would have to be determined.

KIRBY J:   It stands in the way of judgment.  You cannot get judgment if that issue has not been determined, and it seems to me that is a real issue.  The best you can hope for is an order from this Court setting aside the order of the Full Court and sending it back for retrial.  Yes, you have said everything you want to.

MR SPINKS:   Yes, your Honour.

McHUGH J:   Yes, Mr McCormack.

MR McCORMACK:   May it please your Honours, I have filed an outline of argument which sets out in summary form why ‑ ‑ ‑

McHUGH J:   I hope you have, otherwise you would not be complying with the Rules.

MR McCORMACK:   Indeed, may it please. 

KIRBY J:   Why did you not put a sign up?  There is a special risk with that ball that is used in indoor cricket.  You are a company running indoor cricket for profit.  You would know ‑ you presumably have much more knowledge of the risk than an ordinary player.  Why does not the law require that in those circumstances that you should bring that particular special risk of your enterprise for profit to the notice of users of your enterprise?  Then it is for them to decide whether they take that risk.

MR McCORMACK:   There was a sign “players play at own risk”.

McHUGH J:   But it was not there.  The finding of the trial judge was it was not there on this particular occasion.

HAYNE J:   It kept falling down.

MR McCORMACK:   Yes.

KIRBY J:   But, anyway, that does not bring to notice the particularities.  The case for the plaintiff seems to me, if it has legs, is that there is a peculiarity about the ball that gets into the socket and moulds to the eye socket.  Every schoolboy knows the danger of cricket balls, but they do not necessarily know the particular danger of the indoor cricket ball.

MR McCORMACK:   The essence of the finding of the trial judge was that it was foreseeable that a person playing indoor cricket could sustain risk of being hit in the head ‑ ‑ ‑

KIRBY J:   Of course it is, in the generality, but the question is, “Should the player be given notice of the peculiarity and particularity of this ball and of the fact that there have been some injuries, and quite a few?”.  Unless the law holds that, there is no pressure at all on people like your client to inform players that there is a peculiar and a particular risk.

McHUGH J:   Particularly since your client is part of an organisation which has said that helmets are not to be worn except in very special circumstances and you have to get permission.  So one cannot even guard against it.  Why, in those circumstances, is not a warning required?

MR McCORMACK:   Your Honours, the nature of the game itself carries with it a risk which is obvious to all who participate in it.  In the particular facts of this case, the entrant, the player, was a very experienced cricket player who regularly wore a full frontal guard cricket helmet in his games when he was playing standard cricket, outdoor cricket.  When he came to play the indoor cricket, he played the week before, he appreciated all of those issues involved in indoor cricket, and came back the next week to play again.

KIRBY J:   Both times without a guard.

MR McCORMACK:   Both times without a guard.

KIRBY J:   Why do you not provide goggles, just ordinary old goggles?

McHUGH J:   And what about industrial goggles?  I mean, after all, welders and people working in factories wear goggles.  Why cannot goggles be provided, of industrial strength?  Not squash goggles.  Apparently they have said that they would not be sufficient protection.  If people play this game with this risk of injury, why cannot goggles be worn?

MR McCORMACK:   Your Honours, there was a considerable body of evidence at trial as to what goggles would, in fact, be suitable.  The answer, on the evidence, was there are no goggles that were put before the court which were suitable as protectors in all of the circumstances.

KIRBY J:   It is a terrible thing to lose an eye, and a lot of eyes have been lost just locally.  I know cricket is an iconic game, but it is a terrible burden on people to lose their eyes, and you are in the business of eye destruction.  You have to do something about it.  You cannot just say, “Oh, well, it is all up to you.  You are playing, you know it is a dangerous game”.  You have to remove unreasonable risks of injury.

MR McCORMACK:   Your Honour, in terms of the figures, it is instructive, if it please, to look at the figures and, as has already been mentioned, the 38 is, in fact, a composite drawn from a range of activities.  In fact, the evidence from Dr McAlister was that over a period, I think it was of 10 years, at Royal Perth Hospital, there had been noted ‑ ‑ ‑

McHUGH J:   Twenty significant eye injuries I think he said, did he not?

MR McCORMACK:   Two injuries per year out of 12,500 people playing indoor cricket, which is on a weekly basis.  When one looks at the actual figures in terms of the risk of serious eye injury, two a year out of 12,500 per week, multiplied by every week of the year, the actual number of 20 injuries over 10 years tends to fall away as far as giving credence to this being a notable area of eye injury in sport.  There are eye injuries with children playing on the Nedlands foreshore in terms of sports which are played there every Saturday morning, not that there are injuries ‑ ‑ ‑

KIRBY J:   Yes, but you are in the business of profit.  You are inviting people in for your profit.  Two a year is still a lot in my book.  The question is, “Is there anything you can do to stop it, that is reasonable?”.  I would have thought industrial goggles would have been one thing, but maybe the evidence did not sustain that.

MR McCORMACK:   May it please Justice Kirby, that is so.  There was great difficulty in the expert evidence speaking of glass or plastic which, in fact, would withstand the concentrated pressure of the ball without shattering and causing greater injury, or the nature of the goggle being hit so that it would actually cause a collapse, or injure the bone structure around the eye.

HAYNE J:   Did the judge make a finding about that?  If she did, where?  What are the findings?

McHUGH J:   The closest she got is at page 18, is it, about line ‑ ‑ ‑

MR McCORMACK:   The findings of the trial judge were, in effect, that there was no known safety measure on the evidence before the Court which could safely be used to alleviate the risk of head or eye injury, or particularly eye injury.  That was quite a strong finding.

KIRBY J:   If we refuse special leave, the bottom line is we are saying there is nothing that can be done.  You do not put a notice of the peculiarities of this ball and tell people of the risks of eye injuries to allow them to make their own judgments, and you do not put any pressure on people like you to look for ways, helmets or protective gear, that will save two eyes a year.  That is the end of it.  You are just doing a risky thing.  Too bad.  That is basically what you say the common law says.

MR McCORMACK:   May it please Justice Kirby, if there is to be something done in this area, it is a matter for the rule-making body ‑ ‑ ‑

McHUGH J:   No, it is not.  It is for the common law to insist on its standards being obeyed by sporting organisations.  These organisations can no more modify the common law standard of care than doctors can by saying, “Well, we all do it this way”.  That was exploded in this Court in Rogers v Whitaker and it seems to me that by a parity of reasoning it must apply to sporting organisations.  They cannot make up a set of rules and say, “Well, we are not going to have helmets, we are not going to have warnings” or whatever you like.  I think you have to face up to that.

KIRBY J:   Common law is hovering over us all.

MR McCORMACK:   Yes, I appreciate that.  Your Honours, the solution, accepted at trial as stopping the ball, is a full face outdoor cricket helmet with the full guard, but that carries with it ‑ ‑ ‑

McHUGH J:   That creates other problems because of the confined space.

MR McCORMACK:   The visor is a very sharp visor.  It is a protruding metal grid.  In indoor cricket it has the peculiarity of being compressed into a very small space, with high speed running at very short distances and the risk of collision and injury being caused by helmets is a matter appreciated by all of the evidence in the case.

McHUGH J:   But, you see, you have placed emphasis on the fact that the plaintiff was an experienced cricketer, but in this particular field of sport, indoor cricket, he was relevantly inexperienced.  There is a very special risk because the ball used in indoor cricket is softer, it can cause more serious damage to the eye because it can mould into the shape of the eye socket and it transmits more force to the eye than an ordinary cricket ball which tends to be obstructed by the bones surrounding the organ of the eye.  So there is a rather special risk here that perhaps people would not be fully aware of, even an experienced ordinary cricketer.

HAYNE J:   It seems to me your case comes to two propositions, Mr McCormack.  The plaintiff made a case on two bases:  one founded on protective gear; the second founded on warning.  The findings of the trial judge, as I understand it, you say are against adoption of protective gear because none could be identified that were suitable.  The question of warning, as I understand it, you say runs into difficulties about want of findings by the trial judge that had there been a warning he would not have played.  Does your case go beyond those two propositions?

MR McCORMACK:   With regard to the last point, may it please, it goes one additional aspect, and that is, that the plaintiff, being aware of the risk – that is a finding – of outdoor cricket, having played it before, would have played even if there had been a warning.

KIRBY J:   But there is no actual finding.

HAYNE J:   That is not the finding.  At least not as I understand it.  If it is, perhaps you would point me to it.

MR McCORMACK:   Yes, if it please.

KIRBY J:   I do not think the judge or the Full Court got to that because they said, picking up something I had said in the case of a statutory authority in an entrant on the headlands of Darwin, that somehow that meant you never have to give warning to anybody about anything.  That is not correct.  Anyway, answer Justice Hayne:  is there a finding that supports?

MR McCORMACK:   At page 30 of the appeal book, at lines 2 to 3, the learned trial judge said:

Although the plaintiff did not specifically mention the risk of being hit in the head I am satisfied on the basis of his evidence and in the light of his comments in relation to the risks in playing outdoor cricket that the plaintiff was well aware that when he played indoor cricket he ran the risk of being hit by the ball, whether that was in the body or in the head.

HAYNE J:   It is the sentence immediately preceding which is, I think, the furthest the trial judge goes:

satisfied that if he had seen the sign stating “players play at own risk this would not have prevented him –

but that is different from the other limb of his complaint, which is at page 7, point 3 of the page:

The plaintiff also claimed that if a warning had been communicated to him about the risk of serious eye injury then he would not have played.

Now, as far as I can see, the trial judge does not deal with that claim.

MR McCORMACK:   If it please Justice Hayne, the trial judge took the risk as embracing the head, of which the eye was an integral part and vulnerable to risk of injury.  So it is bound up, as it were, in acknowledging that the plaintiff ‑ finding, in fact, that the plaintiff was well aware that if he played indoor cricket there was a risk that he would be hit in the head and it is not to the point that it may go further to hit him in the eye, being part of the head.  There was that risk and all of that risk was a risk of serious injury.  That was the risk which the plaintiff took on that day and the finding of fact, based on the plaintiff’s evidence, is that he would have played nonetheless.

KIRBY J:   Can we take judicial notice of the fact that there are these internal cricket and squash courts all around the nation, that the two a year in Perth is not limited to Perth?

McHUGH J:   There is evidence in this case that the number in Perth alone is ‑ ‑ ‑

KIRBY J:   Yes, but I am talking about the common law throughout Australia.  This is a problem that is presented to us in the context of Perth that would have implications for other parts of Australia.

MR McCORMACK:   I would accept that indoor cricket in Western Australia, being part of a nationwide known sport, I do not know what the details are, and there was very little evidence other than from David Lewis, who is the Australian coach, or was at the time, and the vice president of the national body gave evidence in this trial.  It does appear that there are huge numbers, if I could put it that way, throughout the nation ‑ ‑ ‑

KIRBY J:   The result of dismissing the application is to say, “Well, the common law says nothing about the requirement to give warning of the particular complaint about the softer ball, and the common law says nothing about the duty to call to the enthusiastic young people who may think it is just an ordinary cricket ball and that the risks are the same as they are in the field.  The common law just washes its hands”.

MR McCORMACK:   Your Honour, once one starts opening up indoor cricket on that trail, there are, in my respectful submission, so many other threads of that string as to which sport:  is it netball, softball, is it squash itself, is it hockey, ice hockey, field hockey, whatever?  Anywhere there is a ball ‑ ‑ ‑

McHUGH J:   But we have done it, at least in New South Wales, in respect of horse racing.  Well‑known jockey Malcolm Johnson alleges he was financially ruined by a verdict against him as a result of his negligent riding in a race causing injury to a fellow jockey.  The fact that you play sport does not take you outside the reach of the common law of negligence.

MR McCORMACK:   With great respect, I accept that.

KIRBY J:   Is there anything in the recent case – I did not sit in it – the football case, Agar, is it, that is relevant on the point?

MR McCORMACK:   It is different on its facts, but there are a number of passages which we have marked up and put into – in fact, the passages ‑ Justice Callinan, which is at volume 1 of the case materials in this appeal, at page 141 – and I will return back to the other Justices, including Chief Justice Gleeson, as to the acceptance by participants in sport of risks of injury.

KIRBY J:   I assumed that that was a sort of major premise of the decision of the Court.  I confess I have not read the decision carefully.

MR McCORMACK:   Could I assist Justice Kirby by inviting your Honours to look at volume 1 of the materials on which the respondent relies.  At page 141, paragraph 127 is a passage from Justice Callinan’s judgment in the Agar v Hyde ‑ ‑ ‑

KIRBY J:   His Honour is a well‑known cricketer.

MR McCORMACK:   Yes.  In reading this material, could I assist your Honours by pointing to Rootes v Shelton.  The very case relied upon by trial judge French at first instance was on Rootes v Shelton.  That case has been revisited and applied in two separate footnotes in the Agar v Hyde case, being footnote 8 and 48, first in Chief Justice Gleeson’s judgment and, secondly, in the majority judgment of Justices Gaudron, McHugh, Gummow and Hayne.  That appears at page ‑ ‑ ‑

KIRBY J:   What is said in that majority judgment about accepting risks, obvious risks of sport?

MR McCORMACK:   Yes, obvious and inherent risks in sport.

KIRBY J:   Where is that?  What paragraph?

MR McCORMACK:   For the footnotes, may it please?

McHUGH J:   No, the paragraphs.

KIRBY J:   For the proposition.

McHUGH J:    The paragraphs to the side.

MR McCORMACK:   Page 141 was Justice Callinan’s comment about these ‑ ‑ ‑

KIRBY J:   Yes, you keep coming back to Justice Callinan, who is an expert in cricket.

MR McCORMACK:   That is the first point.  Because it mentions cricket specifically and a soft ball and a hard ball and those issues.

KIRBY J:   I am sure his Honour…..  Where did the joint reasons deal with the question of inherent risk?

MR McCORMACK:   The joint reasons made mention of Rootes v Shelton at paragraph 88 of page 126 of the book.  It is not specifically on point as far as ‑ I think, Chief Justice Gleeson articulates more the essential principle arising out of ‑ ‑ ‑

KIRBY J:   But that was because that case turned on the rules of the game, whereas here the issue is not the rules of the game but, as I understand it, the peculiarity of the particular ball used in this particular version of the rules of the game.

HAYNE J:   Agar v Hyde was a duty case.  This is a breach case.  It is conceded there is a duty here, duty at least as occupier.  The question is one of breach.

KIRBY J:   Maybe the answer to my question is no.  Nothing in that decision, except the obvious, I suppose, that playing any sport involves some risks.  But for you there is conceded to be a duty, so the issue is whether the particularity – that is the issue, and the trial judge does not seem to have focused on that.

MR McCORMACK:   With respect, Justice Kirby, the trial judge did specifically address the issue ‑ ‑ ‑

KIRBY J:   Soft ball.

MR McCORMACK:   Aware of the nature of the soft ball, turned her mind to, and in her reasons, which detail the basis of her reasoning when her Honour gets to the scope and extent of the duty of care ‑ ‑ ‑

KIRBY J:   When you mention netball, beach ball, all the other balls, you begin to make this case sound a very important case.

MR McCORMACK:   How long is a piece of string in terms of going off a beach, going into surf, diving near rocks, playing any form of sport?

HAYNE J:   But this illustrates the difficulty in this case, Mr McCormack.  Either this is a case about the minor premise of demonstrated breach in particular and unusual circumstances, or this case raises some more general issue.  To address argument to generalities seems to me simply to invite a grant of leave.  Either this is a case of peculiar facts and peculiar findings of breach, or there is a general point.

MR McCORMACK:   May it please your Honours, this is a case of particular facts, particular findings of fact, and although it includes within it issues of some general application, this would not, in any event, be an appropriate vehicle for special leave.  It does not throw up a specific point, specifically of sufficient importance to justify, in my respectful submission, special leave being given.

McHUGH J:   Your time is up.

KIRBY J:   You are run out.

MR McCORMACK:   May it please.

McHUGH J:   Yes, we need not here you in reply, Mr Spinks.  There will be a grant of leave in this case.

AT 10.22 AM THE MATTER WAS CONCLUDED