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Lanyon v Noosa District Junior Rugby League Football Club Inc

 

[2002] QCA 163

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Lanyon v Noosa District Junior Rugby League Football Club Inc. [2002] QCA 163

PARTIES:

EDWARD JAMES LANYON
(plaintiff/appellant)
v
NOOSA DISTRICT JUNIOR RUGBY LEAGUE FOOTBALL CLUB INC.
(first defendant/respondent)
and
COUNCIL OF THE SHIRE OF NOOSA
(second defendant not a party to the appeal)
and
ABLEBAY PTY LTD ACN 053 277 393
(third defendant not a party to the appeal)

FILE NO/S:

Appeal No 11149 of 2001

SC No 10508 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2002

JUDGES:

McPherson and Williams JJA and Helman J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – DUTY OF OCCUPIER – where appellant ruptured achilles tendon when foot went into a depression in the training ground whilst coaching rugby league – where exposition had been held on ground the previous weekend – where there was a practice the ground be inspected after the exposition prior to training session – whether the respondent had breached its duty of care

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, considered

Bartels v Bankstown City Council [1999] NSWCA 129, considered

Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483, considered

COUNSEL:

JA Griffin QC for the appellant

T Matthews for the respondent

SOLICITORS:

Boyce Garrick for the appellant

Quinlan Miller Treston for the respondent

  1. McPHERSON JA: I have read and I agree with the reasons of Helman J. The appeal should be dismissed with costs.
  1. WILLIAMS JA:  I agree with the reasons of Helman J.  It follows the appeal should be dismissed with costs.
  1. HELMAN J:  On the evening of Thursday 4 August 1994 at Noosa the appellant, then forty-eight years old, was coaching an under-fourteen Rugby League team of which his son was a member in a training session.  The appellant was an unpaid accredited level-one coach.  The occupier of the ground on which the session took place was the respondent, a volunteer organization.  The respondent leased the ground from the Noosa Council, which gave it a grant to maintain the ground.  As the appellant was running, his left foot went into a depression at the northern end of the ground and he was injured.  His Achilles tendon was ruptured and he was left with a permanent limp even though an orthopaedic surgeon reconstructed the tendon on 15 December 1994. 
  1. The appellant brought his claim against the respondent alleging that it had been negligent and claiming damages for personal injury. The learned trial judge dismissed the claim but assessed the appellant’s damages at $103,068.89. The appellant appeals on a number of grounds asserting that his Honour erred in failing to find that the respondent was negligent. On behalf of the appellant it was expressly denied that any challenge was made to any finding of fact by his Honour, but it was asserted that his Honour had misdirected himself on questions of law.
  1. His Honour accepted that there had been a depression in the ground but noted that the evidence was that ‘generally speaking’ the surface of the playing area was in good condition. (His Honour referred to the unevenness that led to the appellant’s fall variously as an ‘irregularity’, a ‘depression’, and a ‘hole’. To my mind the most accurate description is ‘depression’, and so I have used that term throughout these reasons.) On the weekend before 4 August an exposition called ‘Farming for the Future’ had been held on the ground. It was an annual event to which crowds were attracted. Marquees had been erected, machinery displayed and operated, and vehicles driven onto the ground. His Honour found that although the appellant’s fall occurred in an area where there was less activity associated with the exposition than in other areas it was tempting to conclude, and he thought the probability was, that the depression was ‘associated with’ the exposition.
  1. His Honour accepted that the depression had caused the appellant’s fall and referred to the evidence given by two witnesses as to its dimensions: the appellant and Mr Colin Broomham, the step-father of a member of the team, who was assisting the appellant at the training session.  The appellant said that the depression was at least fifteen inches long, three inches deep, and the width of a basketball - it looked as if it had been pounded into the ground.  It had a grass top and the bottom of the depression was flat.  Mr Broomham said the depression was about one foot in diameter, about two or three inches deep, and has a crater-like appearance.  His Honour said he was not prepared to infer that the presence of a depression such as that described by the appellant and Mr Broomham was, without more, a breach of the respondent’s duty of care owed to the appellant. 
  1. His Honour found that Mr Kenneth Christensen, the president of the respondent at the relevant time, and a representative of the organization responsible for the exposition had inspected the ground after the exposition to see that it was in a fit state for training on the following Tuesday night. Mr Christensen’s evidence was that they had had ‘a good look’ at the ground and had walked ‘around and around’. They did not find the depression. There was no evidence that the depression had been discovered or had caused any difficulty at the training that took place on the Tuesday night. His Honour observed that apparently no-one saw the hole on the Thursday night until the appellant fell.
  1. His Honour found that the respondent required coaches to be accredited and accreditation involved instruction in player safety, including the need to see that the playing area was safe for training, which involved an inspection of the ground. His Honour also found that the appellant did not carry out any ‘particular inspection’ on the night of 4 August.
  1. His Honour found that the appellant has been required to attend a training course before he could be accredited as a level-one coach. The appellant had accordingly attended a three-day course at Kawana on 25, 26, and 27 March 1994. Evidence concerning the course was given by the appellant, Mr Donald Oxenham the manager of the Wide Bay division of the Queensland Rugby League, Mr Carl Liesegang an accredited instructor with the Queensland Rugby League for the levels-one and-two coaching courses and the first-aid course, and Mr Bruce Shedden the coaching director of the Nambour Rugby League Club.  Mr Oxenham organized the course, Mr Liesegang conducted the part of the course dealing with safety precautions, and Mr Shedden attended the course seeking level- one accreditation himself.
  1. His Honour accepted that the course ‘involved instruction as to the need for concern for the safety of players, making sure that equipment such as padding for goal posts, etc. was in position’. Reference was also made, his Honour found, ‘to the need to inspect the grounds, illustrated by stories of experiences with green ants nests or holes in the ground’. Mr Liesegang gave evidence of his invariable practice of including the reference to the duty of coaches to inspect the surfaces of grounds before training sessions in his lecture at the course, and Mr Shedden corroborated that evidence. The appellant’s evidence was that no instruction had been given at the course to the effect that a coach had the duty to conduct regular inspections of grounds. In making the finding he did, his Honour rejected the appellant’s evidence and accepted that of Messrs Liesegang and Shedden. It is not too surprising that he should have done so, particularly as a book, the Coach’s Recorder, sent to those attending the course, contained a check-list for training and matches which included as the first item: ‘A playing surface of good condition, free from objects which may cause injury’. 
  1. Mr Christensen agreed under cross-examination that the coaches were appointed by the respondent’s committee, were required to attend and participate in the coaches’ course, were expected to comply with any directions given by the respondent in relation to coaching, and were subject to disciplinary action. The respondent had the right to dismiss a coach, Mr Christensen agreed. He agreed that there were drills used by the coaches, but he added that he did not have a coaching certificate, so he did not know ‘what they really done’. It was suggested to Mr Christensen ‘that it was never part of the practice of the coaches to inspect the grounds before their coaching session took place’ - to which he replied, ‘I don’t know if they ever did or not.  I don’t know’.  Mr Christensen was asked whether he was aware of their doing so.  His reply is recorded as ‘No.  The only thing they used to have to do and go and put the goal-post pads on’.  He added, ‘The first coach coaching out there, they had to put the goal-post pads on, so the kids wouldn’t run into them.  Other than that, I don’t think they did anything’.  Mr Christensen agreed they probably were not ‘expected to do anything in that regard’.  Mr Broomham said that he had never seen a coach inspect the ground before a coaching session and that there was no such practice.  The appellant’s evidence was to the same effect. 
  1. His Honour accepted that the respondent was under an obligation to the appellant to take reasonable care to ensure that the ground was safe for use, but concluded that the evidence showed an adequate response to the risk to users presented by a depression in the playing surface. His Honour explained his conclusion in paragraphs 15 and 16 of his reasons:

[15]As previously mentioned Christensen and a representative of the organisation responsible for the organisation of the Expo had inspected the ground after that event to see that it was in a fit state for Tuesday night’s training.  They did not find the hole.  There was no evidence that the hole had been discovered or caused any difficulty at training on the Tuesday night.  Apparently no one saw the hole on the Thursday night until the plaintiff fell.  It was not apparent to those present who chose not to go and look at it after the fall.  The defendant required coaches to be accredited.  Accreditation involved instruction in player safety, including the need to see that the playing area was safe for training, which involved an inspection of the ground.

 

[16]In my view the system referred to in the previous paragraph was, in the circumstances, an adequate response to the risk of a hole in the playing surface endangering the users.  The fact that the hole escaped attention does not of itself mean that the system in place was not followed or was deficient.  The defendant was not the plaintiff’s insurer, it did the best it could in the circumstances, c.f. Bartels v Bankstown City Council [1999] NSWCA 129.

It will be seen that his Honour’s conclusion that the appellant’s case should fail was based on the evidence as to two matters:  the examination of the ground made by Mr Christensen and the other person I have referred to and the instructions given to coaches.  Other facts, not the basis of his Honour’s conclusion, were mentioned in his reasons, e.g. the arrangements for the mowing of the ground by Mr Rodney Bevan, the contractor responsible for mowing the ground at the relevant time.  Mr Bevan’s practice was to mow the ground a few days before the exposition, but not to return to mow it again for ‘some time’ after the exposition.  Mr Bevan found the ground to be ‘very well kept and very well looked after’.  Mr Bevan’s evidence was then of a general nature to complete the picture of the state of the grounds.  But his Honour did not err ‘in finding that the mowing of the ground by Bevan was supportive of the adequacy of the respondent’s alleged “system” ’, as the appellant asserts in one of his grounds of appeal, because his Honour did not include any reference to the mowing in his paragraph 15 which sets out the system he referred to in his paragraph 16. 

  1. It was argued on behalf of the appellant that his Honour failed to direct himself in accordance with the law relating to occupiers’ liability as it was explained in Australian Safeway Stores Pty. Ltd. v. Zaluzna (1987) 162 C.L.R. 479, in particular in the following passage in the reasons of Mason, Wilson, Deane, and Dawson JJ.: 

We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier’s liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty. Ltd. v. The Minister [(1986) 162 C.L.R. 340] and Cook v. Cook [(1986) 162 C.L.R. 376] to simplify the operation of the law to accord with the statement of Deane J. in Hackshaw [(1984) 155 C.L.R. 614 at pp. 662-663]:

“. . . it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed.  All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff.  A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.  The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member.  The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”  (p. 488).

It was submitted for the appellant that his Honour did not consider the proximity of the relationship between the appellant and the respondent, and that his Honour did not direct himself as to the manner of the appellant’s entry upon the premises.  I can see no merit in either of those submissions:  it is as plain as it could be that his Honour understood perfectly the relationship between the parties and the circumstances of the appellant’s entry.  It was also submitted that his Honour erred in that his expressed reasoning ‘does not take into account the significance of the fact that the Respondent had invited the Appellant onto the premises in order to coach the respondent’s Under 14 football team’.  What extra significance that fact, if established, might have had once it was understood that the appellant was indeed the coach of the team, as his Honour found, is not clear, but in any event the request to coach the team came from the appellant – as he agreed under cross-examination.

  1. A further error attributed to his Honour was that his expressed reasoning did not take into account the fact that there was no reason why the appellant, or others engaged in the training, should have been aware of the likely general state of the ground after the exposition, or of the depression in particular, or of the further fact that the participants in the training would assume the integrity of the surface of the ground. Whatever knowledge might reasonably have been attributed to the appellant, the respondent was entitled to rely upon the appellant’s responsibility as a coach to inspect the ground before the training session; and that is so in spite of Mr Christensen’s ignorance of such matters brought about by his not being an accredited coach.  But at all events the question his Honour addressed was, with respect, the correct one.  Having accepted that the respondent’s duty was to take reasonable care to ensure the ground was safe to use, he then directed his attention to the ultimate issue of fact:  what a reasonable person, in the position of the respondent, would do by way of response to the risk of injury to people using the ground: see Woods v. Multi-Sport Holdings Pty. Ltd. (2002) 76 A.L.J.R. 483, para. 39; p. 488, per Gleeson C.J. 
  1. In Woods v. Multi-Sport Holdings Pty Ltd the High Court considered the subject of the duty of care of occupiers of premises to those engaged in a sport on the premises.  Hayne J. explained the standard of care required of occupiers as follows: 
  1. Although conventionally described as a finding of fact, to make a finding that there has, or has not, been a failure to meet a standard of reasonable care requires the tribunal (be it the judge or a jury) to translate the relevant legal principle (that the defendant is obliged to take such care as the reasonable and prudent person would take in the circumstances) into what Fleming described as “a concrete standard applicable to the particular case”, and as a process which “involves not a determination of fact, but the formulation of a value judgment or norm”.
  1. In undertaking that task the tribunal of fact must first consider whether the reasonable person would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  The risk is foreseeable if not far-fetched or fanciful.  The tribunal of fact must then decide what the reasonable person would do in response to that risk. This latter decision requires attention to various considerations, very important among these being the magnitude of the risk of injury, the probability of its occurrence, the expense, difficulty and inconvenience of alleviating action, and any other conflicting responsibilities the defendant may have.  Some of these considerations (and there may be others presented by the facts of the particular case) pull in different directions.  Taking them all into account requires the striking of a balance. (p. 506).
  1. It would be quite unreasonable to expect the respondent, which was a volunteer organization, to have the football ground free at all times of all unevenness and so require it to produce a surface of the kind suitable for lawn bowls or croquet. It is a matter of common experience that a football ground from time to time has rough patches on its surface. The respondent was not required to achieve a perfect surface, any more than was the defendant municipal council that provided the ground for the playing of soccer in Bartels v. Bankstown City Council [1999] N.S.W.C.A. 129: see the reasons of Sheppard A.J.A., with whom Priestly and Stein JJ.A. agreed, at para. 47.  The depression that caused the appellant’s mishap was nothing more than might ordinarily be expected at times on a football ground of the kind occupied by the respondent.  But it must of course be accepted that steps were required to ensure that the surface was as free from depressions and protrusions as could reasonably be expected.  The evidence showed that an inspection of the ground had been carried out on behalf of the respondent, and the respondent is entitled to rely on the requirement for other inspections by coaches present at the ground on the Tuesday night and on the night in question.
  1. In Woods v. Multi-Sport Holdings Pty Ltd  Gleeson C.J. observed:

[41]Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant.  The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes.  I say “may”, because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case. (p. 489).

It was contended on behalf of the appellant that his Honour ought to have held that there was no relevant distinction between the duty owed to the appellant and that which would have been owed to an employee.  It is difficult to see how that proposition can be sustained when one reflects on the nature of the respondent and the autonomy accorded its coaches, but even if one were to accept the validity of the proposition it would have had no practical utility in resolving the issue confronting his Honour.

  1. When all of the circumstances of the case are taken into account I am not persuaded that his Honour was in error in concluding that the respondent adequately met the obligation of care required of it. That conclusion is sufficient to dispose of the appeal, but two further contentions raised on behalf of the appellant require brief mention although I do not regard either as having any merit.
  1. First, it was asserted that his Honour failed to take into account the significance of the respondent’s failure to call the representative of the organization responsible for the exposition who inspected the ground with Mr Christensen. His Honour could not have failed to notice that fact, but nonetheless accepted Mr Christensen’s evidence. The appellant could have called the representative if he had been so advised.
  1. Secondly, it was asserted that, in referring to the fact that the respondent was a volunteer organization, his Honour failed to advert to the evidence showing that the respondent received a grant of funds for the maintenance of the ground. His Honour did however refer to the grant in the second paragraph of his reasons after referring to the fact of the respondent’s being a volunteer organization in his first paragraph. The significance of the former can hardly have been overlooked, and the evidence was quite clear that the ground was maintained to a reasonable standard.
  1. The appeal should be dismissed with costs.
Close

Editorial Notes

  • Published Case Name:

    Lanyon v Noosa District Junior Rugby League Football Club Inc

  • Shortened Case Name:

    Lanyon v Noosa District Junior Rugby League Football Club Inc

  • MNC:

    [2002] QCA 163

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Williams JA, Helman J

  • Date:

    10 May 2002

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status