Anderson v Mount Isa Basketball Association Incorporated
[1997] QCA 340
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Anderson v Mount Isa Basketball Association Incorporated[1997] QCA 340
- Add to List
Anderson v Mount Isa Basketball Association Incorporated[1997] QCA 340
Anderson v Mount Isa Basketball Association Incorporated[1997] QCA 340
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8371 of 1996
Brisbane
[Anderson v. Mt. Isa Basketball Assoc. Inc.]
BETWEEN:
SHARLENE MAREE ANDERSON
Appellant
AND:
MOUNT ISA BASKETBALL ASSOCIATION INCORPORATED
Respondent
Davies J.A.
Demack J.
Mackenzie J.
Judgment delivered 3 October 1997
Joint reasons for judgment of Davies J.A. and Demack J.; separate dissenting reasons of Mackenzie J.
APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW SET ASIDE. JUDGMENT FOR THE APPELLANT FOR $80,000 WITH COSTS.
| CATCHWORDS: | NEGLIGENCE - Appellant was an unsuccessful plaintiff in an action for personal injury against the respondent - the appellant suffered injury when she fell running backwards whilst refereeing a game for the respondent - respondent provided no tuition to the appellant and did not warn her of the risks of running backwards - whether the respondent was negligent in failing to provide instruction to avoid these risks. Bus v. Sydney County Council (1989) 167 C.L.R. 78 Dailly v. Spot-On Investments Pty. Ltd. (1995) A.T.R. ¶81-363 March v. Stramare (E. and M. H.) Pty. Ltd. (1991) 171 C.L.R. 506 McLean v. Tedman (1984) 155 C.L.R. 306 Nagle v. Rottnest Island Authority (1993) 177 C.L.R. 423 Phillis v. Daly (1988) 15 N.S.W.L.R. 65 Rootes v. Shelton (1967) 116 C.L.R. 383 Turner v. South Australia (1982) 56 A.L.J.R. 839 Webb v. South Australia (1982) 56 A.L.J.R. 912 Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 |
| Counsel: | Mr. R. J. Douglas for the appellant Mr. R. A. I. Myers for the respondent |
| Solicitors: | Nicol Robinson & Kidd town agents for V. R. Moffatt & Associates of Mount Isa for the appellant Thynne & McCartney for the respondent |
| Hearing Date: | 27 June 1997 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8371 of 1996
Brisbane
| Before | Davies J.A. Demack J. Mackenzie J. |
[Anderson v. Mt. Isa Basketball Assoc. Inc.]
BETWEEN:
SHARLENE MAREE ANDERSON
Appellant
AND:
MOUNT ISA BASKETBALL ASSOCIATION INCORPORATED
Respondent
JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND DEMACK J.
Judgment delivered 3 October 1997
The appellant was an unsuccessful plaintiff in an action for damages for personal injuries against the respondent in the District Court arising from a fall which she suffered whilst refereeing a basketball game in Mt. Isa on 22 October 1991. At the time of her accident the appellant was 22 and was an inexperienced referee.
The appellant played basketball at school in Sydney for three years until age 15. Over those years she also acted as referee in a number of school basketball games but received no instruction in refereeing, either with respect to the rules of the game or with respect to safety. She did not take up basketball again for several years until 1990 when she commenced playing in Mt. Isa in the competition, run by the respondent, in which she was injured on the above date. That competition ran from July to October or November of each year on the respondent's courts which were of concrete construction; that is, the surface of the courts were of concrete.
The basketball competition which the respondent ran in Mt. Isa involved several grades of male and female teams, apparently 95 teams in all. About 50 games a week were played on two adjoining courts, one of which was the one on which the appellant fell. The respondent undertook to supply all referees for all games.
After the appellant had commenced playing again in the competition in 1991, in C grade, there was frequently an insufficient number of referees available to referee all games. It was explained, presumably by representatives of the respondent, that if some of the players would referee that would solve the problem. The appellant was one of a number of players who volunteered to referee and from that time on she refereed at least one game on the night on which she played. It was explained to those who volunteered that they would be paid per game. The fee was then $4.00 per game, payment to be made at the end of the season. The game which she was required to referee each week would appear on a roster. She was given some sheets of paper which had on them the basic rules of the game and she also purchased from K-Mart a book about basketball and its rules in order to familiarize herself with the game as thoroughly as she could. She had refereed about 12 games by the time of her accident. She received no tuition.
Two referees are required for each game of basketball. Because of her inexperience the appellant was always paired with an experienced referee. Some of these from time to time imparted hints to her about refereeing. On the night in question she was refereeing a women's B Grade game. It was much faster than any of the previous games which she had refereed which had been in lower grades, mostly D and E grades but also C grade, the grade in which she played. Her co-referee that night was Mr. Teague who was a very experienced referee.
Shortly prior to her accident the game was at one end of the court. The other referee was behind the base line at that end and she was near the middle of the court. The ball was then thrown some distance towards her end of the court so she commenced to run backwards, whilst keeping her eyes on the play, in order to position herself at the base line at her end of the court.
As the appellant and others explained it was necessary for a referee, whilst repositioning herself as the appellant was doing, to keep her attention on the play, that is on the ball. This explains why the appellant moved from her position in the centre of the court towards the base line by running backwards; it was easy for her, by doing that, to maintain her attention on the play. It was as she was running backwards that she fell and suffered breaks to both her wrists.
In the Court below the main allegation against the respondent concerned the maintenance of the surface of the court, for the appellant's recollection was that she slipped and it was contended that she slipped on part of the court where the surface was smooth and traction poor. There were, indeed, some parts of the court where that may have been so but the learned trial Judge found that she did not overbalance and fall on one of those parts of the court and he thought it more likely that she did not slip. The appellant has not appealed against those findings.
However the appellant also contended below that even if, contrary to her recollection, she did not slip on a smooth part of the surface of the court, she overbalanced in the course of running backwards and that she should have been instructed by the respondent not to run backwards whilst refereeing a game but to move sideways instead. The respondent accepted that the appellant overbalanced and fell whilst running backwards. The learned trial Judge held that the respondent was not in breach of any duty of care to the appellant in failing to so instruct her. It is against this, in substance, that the appellant appeals.
Mr. Teague had seen referees run backwards from time to time but expressed the view that it was a dangerous practice and that it was a preferable practice to skip sideways in order to keep an eye on the play. This would have been his view, he said, in October 1991. At trial he recalled the practice being discussed at referee coaching courses but he could not say whether this was before or after this accident. There is no suggestion that he ever conveyed his views to the appellant before her accident. Not only did he not do that but, as we have said, the appellant was given no tuition in this respect at all. Mr. Teague agreed that, had there been referee training courses with respect to safety, referees would have been instructed about matters of this kind. He also agreed, as was self-evident, that there was no difficulty in simply telling new referees such as the appellant that running backwards was dangerous and that the preferable course was to skip sideways.
Mrs. Wright who was also much more experienced than the appellant, recalled that, in her younger days, she used to run backwards and another much more experienced referee said to her "If you don't want to hurt yourself, stop running backwards". She took his advice although it took some time to get out of the habit, but after a while she found that it was easier to run sideways than to run backwards. She also remembered whilst watching the appellant, shortly prior to her fall, thinking "Gee, I wish you would turn on your side and run on your side".
The learned trial Judge specifically referred to this evidence by Mr. Teague and Mrs. Wright, at least in part and, inferentially, by his finding that some referees avoided or minimized the risk of falling over while running backwards by skipping or running sideways while looking at the game. He appears to have accepted their evidence on this question although he made no specific finding about that. He also made findings that:
- there was no evidence that it was the practice to give new referees instruction in such matters before the end of 1991.
The better inference from the evidence was that there was no such practice in Mt. Isa. There was no evidence of the practice elsewhere. Perhaps that is what his Honour intended to say.
- Junior referees in Queensland learnt on the job from more senior referees who passed on advice about various matters from time to time; sometimes that included advice about the advantages of not running backwards.
The statement is true of Mt. Isa. It is difficult to see how his Honour extended it to Queensland.
- If the Association had wanted to do so, it would have been easy enough to counsel the plaintiff about the dangers of running backwards.
His Honour also made a finding that, judging by the evidence, it was the usual practice for referees to run backwards. So far as we can see there is no evidence from which this could have been inferred. Of the witnesses called none said that in 1991 that was the practice. Mr. Teague, when asked whether it was common for referees to run backwards from time to time replied "It would have occurred, yes." He also agreed that he had seen it occur "from time to time". But he thought it a dangerous practice and Mrs. Wright said that she did not do it by 1991. No others commented on the practice. Indeed the only other evidence which went close to doing so was an answer by Mr. Trennery, another experienced referee, in cross-examination. He was asked:
"A risk of a referee falling over onto the bottom in the course of back pedalling, is that the way you refer to it, is one of the accepted risks of the game as far as you are concerned?"
To which he replied:
"Falling over by a referee, a risk, yes."
His Honour's finding seems to have been made on the basis that, if it was not their usual practice to run backwards, their more cautious behaviour would surely, he said, have become a matter of common observation, and the appellant would have noticed it; and there was no suggestion that she had done so or should have done so. Although it is true that there was no suggestion made that the appellant had or should have observed this, the absence of such a suggestion does not, in our view, permit a finding that it was the usual practice of referees to run backwards when the only evidence was that it occurred from time to time but was a dangerous practice.
Plainly the relationship between the appellant and the respondent was such as to give rise to a duty of care in the respondent to take reasonable care to avoid a foreseeable risk of injury to the appellant.[1] The respondent was in charge of the administration of basketball in Mt. Isa. Clubs and individual players paid it a registration fee. The respondent's responsibilities included the organizing of a number of competitions in various grades and the provision of referees for games. It paid referees including the appellant a small remuneration for their services. At the relevant time the appellant was a new and inexperienced referee.
Plainly also the risk of injury here was foreseeable. It was neither far fetched nor fanciful.[2] Because of the need to retreat quickly away from the play whilst keeping eyes on the play, running backwards was a fairly natural thing to do. Mrs. Wright did it until warned of its danger by a more experienced co-referee and needed to practice a little to adapt to the practice, new to her, of running sideways. Nevertheless, according to Mr. Teague, it was a dangerous practice and Mrs. Wright apparently thought that the appellant was at risk in running backwards as she did. Even if it had been contended that running backwards involved a failure by the appellant to take reasonable care for her own safety that would not have precluded foreseeability;[3] but no such contention was made in this Court although it had been alleged below.
The main factors requiring consideration in determining whether there was a breach of the duty are the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and other conflicting responsibilities which the defendant may have had.[4] It is difficult to say how likely it was that an accident of this kind would occur but, on the evidence of Mr. Teague and Mrs. Wright, it was not very unlikely; and given the hard surface on which the game was played and the speed with which, in the circumstances of this case, the appellant was required to move, the magnitude of the risk was high. By contrast the expense, difficulty and inconvenience of taking alleviating action by means of appropriate instruction were slight.
The above statement of factors requiring consideration in determining breach of duty is not intended to be exhaustive. Two other factors mentioned in some of the cases[5] are the obviousness and ordinariness of the risk. There are, however, two difficulties in the way of placing too much weight on these as factors negating a breach of duty. The first is the increasing recognition given by courts to the need to take into account the possibility of inadvertent or even negligent conduct on the part of others[6] and consequently a decreasing weight being given to the obviousness and ordinariness factors. The second is that they assume less relative importance where the risk of injury can be eliminated without undue difficulty or expense.[7] That appears to be the case here. The appellant said, and the learned trial Judge found, that if she had been advised of the danger of running backwards she would probably have followed that advice. It was therefore reasonable to infer that, had she been so instructed when she commenced refereeing, she would have adapted to the practice of running sideways as Mrs. Wright did.
It is not entirely clear why the learned trial Judge held, as he did, that there was no breach by the respondent of that duty. In the paragraph of his judgment in which he dealt with that question his Honour referred to the absence of evidence of a practice that junior referees learnt such things as not running backwards other than possibly on the job and to the absence of evidence that the majority of referees recognized the desirability of the practice of running sideways and said that the risks of running backwards were obvious to anybody. And his Honour then repeated his earlier observation that if there had been a practice of running sideways the appellant would have been in a position to observe and copy it.
However his Honour did not again advert to the evidence of Mr. Teague and Mrs. Wright, which he appears to have accepted, to the effect that the practice of running backwards was unsafe and that there was a safer, easily learnt alternative. Perhaps this was because his Honour thought that not only the risk of running backwards but the greater safety of running sideways were so obvious to anybody in the appellant's position that it was not unreasonable on the respondent's behalf to fail to provide instruction about that. But, if that was the view which his Honour took, it gave insufficient weight, in our view, to the fact that it was not immediately obvious to Mrs. Wright whose early experience, as she related it, does not strike us as surprising. It is one thing for a person such as the appellant, in the course of a rational discussion about the possible danger of running backwards, in a situation like this, to appreciate that danger and advert to the possibility that running sideways is a safer alternative. It is quite another for such a person, in the absence of any such prior discussion or instruction, to advert to that danger and the way to avoid or minimize it when, in the heat of the game, she is required to move quickly away from the play whilst keeping her attention on the play. Moreover in our respectful opinion that view suffers the defects referred to earlier of paying insufficient regard to the need to take into account the possibility of inadvertant or even negligent conduct and of failing to balance against it the obviousness of the risk and the absence of any undue difficulty or expense in eliminating it.
In our view, having regard to the inexperience of the appellant and her obligation to concentrate her attention on the play whilst repositioning herself, a reasonable person in the position and with the knowledge of the respondent would have provided some instruction along the lines which Mrs. Wright had received. It follows that the respondent in the circumstances was negligent in failing to give that instruction and that that negligence caused the appellant's injuries.
It was not contended for the respondent before this Court that, if the appellant were otherwise successful, a finding of contributory negligence ought to have been made against her. Such a finding could have been made, in any event, only by finding that the appellant ought to have adverted to the alternative safer course by observing Mrs. Wright and, presumably, Mr. Teague in circumstances in which there was no evidence that she had any opportunity to observe Mrs. Wright and none as to the opportunity which she had to observe Mr. Teague; or by finding that she ought to have adverted to the danger and the alternative safer course without either instruction or observing others.
The appeal should, in our view, be allowed, the judgment below set aside and judgment given for the appellant for $80,000 with costs. The appellant should also have her costs of this appeal.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8371 of 1996
Brisbane
| Before | Davies JA. Demack J. Mackenzie J |
[Anderson v. Mt. Isa Basketball Assoc. Inc.]
BETWEEN:
SHARLENE MAREE ANDERSON
(Plaintiff) Appellant
AND:
MOUNT ISA BASKETBALL ASSOCIATION INCORPORATED
(Defendant) Respondent
REASONS FOR JUDGMENT - MACKENZIE J
Judgment delivered 3 October 1997
This is an appeal against the dismissal of a claim for damages for negligence. The accident giving rise to the action occurred on 22 October 1991 at basketball courts conducted by the respondent. The appellant was one of two referees of a game of basketball which was then in progress. She had been positioned in the area of the midline of the court when the ball was thrown towards her end of the court obliging her to return quickly to the area of the baseline as play moved in that direction. In order to keep her eyes on the play she started to run backwards towards the baseline. She fell over backwards, put her hands behind her to save herself and suffered two broken wrists.
One issue in the trial was whether the point at which she fell over was a relatively slippery area of the court. Indeed this was the major focus in the trial with the result that the aspect of the case which is the subject of the appeal received relatively little attention. The learned trial judge found that she did not slip and that when she fell she was not in an area of the court identified by the evidence as having any slippery qualities. There was evidence upon which those findings could properly be made and they are not challenged by the grounds of appeal.
The case therefore turned on whether the respondent Association was negligent in failing to instruct the plaintiff that she should not, while refereeing a game of basketball, run backwards at any time but rather should have been instructed to move sideways at all times when she was retreating.
The game during which the appellant was injured was a women’s B grade contest. One of the referees was unwell and upon being asked the appellant agreed to take his place. At the time of the accident she was 22 years of age. She had played competitive basketball for three years up to the age of 15 at high school and had acted during that period as a referee. In 1990 and 1991 she played throughout the seasons and also volunteered to do some refereeing. By the time of the accident she had refereed about twelve games, usually games in lower grades although she had refereed two B grade men’s games. Ordinarily, when a game was being refereed by a novice referee, the other referee would be more experienced. At the time no formal training was given to referees except information about the rules of the game and how to control play. At some time after the accident a more formal program for training referees was instituted. Such evidence as there is suggests that sometimes an experienced referee would pass on hints to a less experienced colleague but it was accepted that the appellant had not been warned about any danger in running backwards.
The learned trial judge made a number of findings of fact. Some of them require comment. However before doing so it is desirable to refer to the evidence upon which the findings were based. Mr Teague who was refereeing in conjunction with the appellant on the night of the accident said that from a referee’s perspective the usual risks were being hit by the ball and occasionally falling over. He recalled one occasion when he fell over walking backwards because he “basically tripped over (his) own feet”. He did not recall seeing other referees fall over in that situation. He was asked the following questions
“But certainly prior to this accident, that is, prior to the 22nd of October 1991, if you had have been asked the day prior to that, whether or not you thought back-pedalling or running backwards was a dangerous practice, you would say that it would be?-- Yes, I would have said that.
And you would say that through the focus of your experience as a referee?-- Yes.”
He agreed that the only instructions given at Mount Isa at the time of the accident were with regard to the rules. He agreed that a specific instruction not to run backwards was given after the incident and that it would have been a very simple matter for the Association to instruct referees that it was preferable to move sideways rather than to run backwards had there been any refereeing training courses.
Mr Trenerry, another referee, was asked the following:
“And would you agree with me that another accepted risk as far as a referee is concerned is that sometimes you can fall over, particularly if you are running backwards?-- Yes. Anyone who is involved in any sport, and particularly basketball that you are talking about - sorry, with basketball you are talking about, it can happen, yes.”
He was not cross-examined on the subject. Mrs Anderson (who was not related to the appellant) said that she had seen referees overbalance and fall from time to time.
The largest body of evidence on the subject came from Mrs Wright who was sitting in a grandstand attached to another court while waiting for a game on that court to commence. While she was waiting she was watching, across that court, the game being played on the court where the appellant was injured. She had said in examination in chief that she had seen a referee trip or fall in the course of a game on odd occasions. While being cross-examined, for the purpose of challenging her evidence as to where the appellant fell, about the difficulty of judging where the appellant had fallen because of the distance between where she was sitting and the place where the accident happened, she volunteered that she was focusing on the appellant because of a concern which she expressed in the following terms:
“And what was your concern at the time?-- I, having done a bit of refereeing back in my younger days, I remember I used to run backwards and one of the young chaps that used to ref with me pulled me up and said, you know, “If you don’t want to hurt yourself, stop running backwards.” and I remember watching Sharlene, she was a bigger girl than she is now and being big myself, I remember thinking at the time “Gee, I wish you would turn on your side and run on your side.” So, fair enough, I probably wasn’t looking at position, but I was certainly thinking that.”
She said that she trained herself to run sideways. She said that helpful advice was often passed on informally by more experienced referees.
The learned trial judge summarised his appreciation of the evidence in the following passage of his reasons.
“The effect of the evidence can be summarized this way:
- There are always some risks for a referee in basketball. They include being struck by the ball, being struck by a player, and falling over.
- Some referees avoid or minimize the risk of falling over while running backwards, by skipping or running sideways, while looking at the game.
- There is no evidence that it was the practice to give new referees instruction in such matters, before the end of 1991.
- Junior referees in Queensland learnt on the job from more senior referees who passed on advice about various matters from time to time. Sometimes, that included advice about the advantages of not running backwards.
- If this Association had wanted to do it, it would have been easy enough to counsel the plaintiff about the dangers of running backwards.
- If the plaintiff had been given such advice, then she would probably have followed it.
- Judging by the evidence, it was the usual practice for referees to run backwards. If not, their more cautious behaviour would surely have become a matter of common observation, and the plaintiff would have noticed it. There was no suggestion that she had done so, or should have done so.”
It is difficult to see how the evidence establishes that there was a Queensland-wide practice of the kind referred to in (d). Finding (d) also states the position more positively than the evidence supports. The evidence supports only the view that on occasions more senior referees gratuitously passed on advice to inexperienced referees. If the finding is to be construed as meaning that it was the norm throughout Queensland for junior referees to learn on the job from more senior referees who, as a matter of practice, passed on advice to them the evidence does not support such a finding. Perhaps the passage should be taken to be infelicitously expressed since, in the passage quoted below, a more accurate expression of the effect of the evidence is stated.
Finding (g) also calls for comment. It is difficult to see that it is established expressly that running backwards is a “usual practice”. If the finding is to be taken to say that, it is problematical, because apart from the evidence of Mr Teague about an occasion when he fell over and of Mrs Anderson as to what she had seen, there is little in the evidence to support the proposition. If, however, it is intended to convey that the evidence justified an inference that the practice of running backwards was not unusual, it is more justifiable. The observation that there was no suggestion that the appellant had observed a different practice nor that she should have done so and the more direct statement on the subject in the passage quoted below indicate that the learned trial judge was expressing the conclusion that the evidence did not support the proposition that the practice of running backwards was unusual. It should not be lost sight of that the issue upon which the appellant’s case and the vast majority of evidence principally focussed was whether the appellant had slipped on an unsafely slippery area of the court. She was disbelieved as to this. The issue now under consideration received very little attention.
The factual context in which the question of liability was to be determined was that falling over was one of the risks for a referee if he or she ran backwards. There was no evidence that it was the practice to give new referees instructions to avoid or minimise the risk of falling over by adopting a practice of skipping or running sideways while observing the game. Some experienced referees gave such advice on an informal basis to their less experienced colleagues. It was easy to advise a novice of the danger of running backwards. If the appellant had been advised she probably would have followed that advice. However, there was nothing to suggest that the practice of running backwards was uncommon, although two witnesses thought it was a dangerous practice.
The critical test applied by the learned trial judge is in the following passage:
“Therefore, the question here is, did the Association fail to take reasonable precautions to guard against injuries to referees, by not offering formal instruction to the plaintiff, to the effect that she should not run backwards in retreating from the advancing play? The answer is, that it did not do so here. There was no evidence that junior referees learnt such things other than (possibly) on the job. There is no evidence even that the majority of referees recognized the desirability of such a practice. Certainly, all referees would recognize that from time to time a referee might have a fall. Finally, the risks of running backwards are obvious to anybody. If there were an accepted practice, then the plaintiff was in a good position, during her years of playing at school and in Mt Isa, to observe it and copy it. The Association was not in breach of its duty to her.”
There is a general duty of care to take reasonable care to avoid foreseeable risks of injury to persons participating as referees or otherwise in basketball games. It is beyond argument that the risk of falling over if a person ran backwards is foreseeable. It was not “far-fetched or fanciful” (Wyong Shire Council v Shirt (1980) 146 CLR 40; Nagle v Rottnest Island Authority (1993) 177 CLR 423).
The critical question is whether there was a breach of duty by failing to warn the appellant not to run backwards. Reference was made in submissions to the principle that when a person engages in a sport a participant may be held to have accepted the risks which are inherent in it. It is a question of fact what such risks are. However this does not eliminate all duties of care. The extent of such a duty, if it exists, depends on the circumstances of each case (Rootes v Shelton (1967) 116 CLR 383; Johnston v Fraser (1990) 21 NSWLR 89).
This is not a case where one participant has inflicted an injury upon another. It is one where the complaint is that the minimum required level of instruction in the hazards of officiating as a referee has not been given. Nor is it a case where a situation of potential physical danger has been created by reason of the condition of premises or a danger exists because of an inadequate system of work and precaution is therefore required against the possibility that someone may in a moment of inadvertence injure himself or herself (McLean v Tedman (1984) 155 CLR 306; Bus v Sydney County Council (1989) 167 CLR 78). It was a case where it would have been easy to have given a warning. That is a factor which must be taken into account (Wyong Shire Council v Shirt).
There are some situations in which a referee or umpire is exposed to the risk of injury because of the essential nature of the game. Where the object of the game is for one team to progress a ball towards a goal by some means which involves rapid movement of the ball and the players and to prevent the opposing team from doing so in the opposite direction, some risks will be obvious. This will especially be so where the person who is performing the duties of referee or umpire has played the game or observed it being played on more than occasional basis. That was the plaintiff’s situation in this case.
In the case of obvious risks inherent in the game, it would in my view be in excess of what is reasonably required to warn such a person of things such as the risk of being hit by the ball if one places oneself in a position where the ball is likely to be thrown, kicked or hit while play is in progress, or the risk of coming into collision with players if one does not stay sufficiently away from those who are or are likely to be immediately involved in the play. These are merely examples and are not intended to be exhaustive. It will also be obvious to a reasonable person familiar with the game that sometimes umpires or referees may have to retreat to avoid rapidly advancing players or to keep under observation what advancing players are doing for the purpose of detecting breaches of the rules as play progresses. Common experience shows that there is an obvious risk of overbalancing while running backwards. Common experience also shows that whether it be called skipping or something else, a method of retreating which involves the incorporation of a sideways element into the footsteps is relatively more stable.
The question is whether the respondent’s duty of care in the present case extended to advising the plaintiff of the obvious risk of overbalancing if she ran backwards and of the advantages of the latter method from the viewpoint of safety. In my opinion it would be setting the level of the duty of care too high to require the respondent to warn a person with the plaintiff’s background that there were dangers associated with running backwards. Although she was a novice referee the risk was obvious. She was not new to the game. The learned trial judge inferred from the state of the evidence that notwithstanding the risk it was common for experienced referees to run backwards. That inference was in my view open to him on the state of the evidence. The fact that some referees have been at some time in their careers told by more experienced referees about the possibility of skipping sideways as an alternative is not in my view determinative of the content of the duty. Nor is the fact that at some time after the appellant’s accident the respondent instituted a course of general instruction for referees which included reference to the movement of referees around the court.
There is one other argument that was advanced. Referees were paid a small sum per game to officiate and the appellant would have expected to be paid accordingly for refereeing the game in question. It was submitted that the contract was a contract of service rather than a contract for services. Without finding it necessary to express a concluded view (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 49-50) I doubt that that is so. It was submitted that however the relationship was characterised the relationship attracted a duty to lay down and enforce a safe system of work. The same considerations which led to the conclusion that there had been no breach of the duty of care in relation to the allegation of negligence by failing to warn the appellant not to run backwards are in my view equally applicable to this argument.
In my opinion the appeal should be dismissed with costs to be taxed.
Footnotes
[1]Nagle v. Rottnest Island Authority (1993) 177 C.L.R. 423 at 430. The general duty applies to sporting accidents: Rootes v. Shelton (1967) 116 C.L.R. 383 at 387.
[2]Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at 48.
[3]Nagle at 431.
[4]Wyong at 47-8.
[5]Turner v. South Australia (1982) 56 A.L.J.R. 839 at 840; Webb v. South Australia (1982) 56 A.L.J.R. 912 at 913; Phillis v. Daly (1988) 15 N.S.W.L.R. 65 at 74; Dailly v. Spot-On Investments Pty. Ltd. (1995) A.T.R. ¶81-363.
[6]Bus v. Sydney County Council (1989) 167 C.L.R. 78 at 90. See also Nagle at 431; March v. Stramare (E. and M. H.) Pty. Ltd. (1991) 171 C.L.R. 506 at 519, 520, 536-7; McLean v. Tedman (1984) 155 C.L.R. 306 at 311-2; Webb at 913.
[7]Webb; Turner.