By Stuart Eustice, Partner, William Gordon, Senior Associate and Henry Van Til, Lawyer
The plaintiff was training when he attempted to cross the boundary fence to the nearby cricket nets. When jumping the fence, his foot got caught on the fence and as a result of falling forward to the ground he fractured his C3, C4, C5 and C6 vertebrae, leaving him a quadriplegic. Council owned and occupied the reserve, and had installed the sporting infrastructure including the boundary fence. The Cricket Club used the ovals and nets for training.
The Court heard that most players used the shortest route and climbed or jumped over the fence rather than walking to a more distant gate. The Club did not have the power to install a gate and had asked (prior to the incident) the Council do so upon the installation of the new nets. The central issue for the Court was whether the Club had raised the gate as a safety issue before the accident, and whether the Council should have installed a gate.
Justice Gorton held that Council breached its duty of care as the occupier. Council knew, or ought to have known that many cricketers would repeatedly climb or jump the fence between the nets and the oval if there were no nearby gates. The Court accepted that whilst the risk of injury was small, it was not merely theoretical. It was the repeated, and aggregated risk such that it had become significant because the sheer amount of people navigating between the oval and the nets by climbing the fence on a weekly basis. The Court found that the logistics behind installing a gate when the nets were installed would have been modest, and that the plaintiff would have used the gate and avoided the injury had there been a gate.
His Honour accepted that the Club had asked for a gate, and that the request was made in circumstances where players were already jumping the fence. However, it was determined that the request by the Club for a gate to be installed was not framed as an urgent safety issue to Council. Despite this finding, the Court found that Club had discharged its duty to act reasonably after making the request for a gate, and that the Club did not need to follow up the Council for progress on the installation of a gate. His Honour recognised it was Council who had created the risk associated with the lack of a gate, and it was accepted that the Club was not empowered to install a gate.
The Court also found that the Club did not act unreasonably by not directing the players not to climb or jump over the fence, and that it was reasonable from the Club’s point of view to leave that decision to each individual adult player.
The Court rejected an argument from Council that the plaintiff had voluntarily assumed the risk of injury pursuant to Section 54 of the Wrongs Act 1958 (Vic). His Honour held that the plaintiff was not negligent merely for jumping the fence, as the risk of injury was small and he was moving alongside the cricket team. Moreover, the plaintiff did not have full knowledge of the extent of the risk of the catastrophic injuries he suffered, and that the resulting injuries from jumping the fence was not an “obvious risk”. Therefore, Council’s voluntary assumption of risk defence failed as they did not establish the plaintiff was aware of the extent of the risk of injury, nor that is was an obvious risk.
The plaintiff’s contributory negligence came from the fact that he was running “reasonably fast” when running to and jumping the gate, which was deemed to have increased the risk of falling and injury. The Court noted the plaintiff should have slowed down and crossed the fence carefully.
In assessing the appropriate reduction, His Honour compared the departures from acting reasonably from both parties. Council had created the dangerous situation by failing to provide a gate at a place where it knew repeated fence jumping would otherwise occur. Whilst the plaintiff was also at fault, the departure from reasonableness was lower. On that basis, the Court rejected the 100% reduction that was contended by Council and instead a 20% reduction was determined as just and equitable.
The agreed damages of $19 million were therefore reduced to $15.2 million.
This case highlights that even a perceived small safety hazard ought to be addressed where high volume foot traffic can be expected which in aggregate elevates an otherwise small risk, to a significant risk. The findings related to the Cricket Club are also of interest – that they need not have followed up the Council after their initial complaint, irrespective of its knowledge the players were continuing to be exposed to the risk they had initially identified.
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