UP THERE CAZALY! THE LAW’S ON YOUR SIDE
September 12, 2017
In Beaumaris Football Club v Hart & Ors and Bayside City Council v Hart & Ors  VSCA 226, the Victorian Court of Appeal has dismissed an appeal from a County Court decision holding a junior football club, the relevant League, and the local Council (the defendants) liable in negligence for failing to ensure the boundary line was marked at the recommended minimum distance of 3 metres. The claim was brought by Beau Hart, a young AFL footballer who severely injured his knee when he landed on the boundary fence when leaping for a mark.
Hart was playing for the under-17 Beaumaris Sharks Football Club (the Club) at the Banksia Reserve ground in 2009 when the accident occurred. The 6 foot 3 inches
(1.9 metres) tall Hart was playing at full forward position in the forward pocket (near the goalposts) when a ball kicked from the centre of the ground headed his way. He ran at ‘top pace’ towards the boundary and, leaping up like the legendary Roy Cazaly, managed to get his hands to the ball just inside the boundary line. However, in the process of this athletic manoeuvre, he landed about half way up on the approximately 80cm high mesh fence surrounding the oval. The studs of his left boot got stuck in the mesh and he sustained a serious injury to his left knee.
Medical experts told the court that Mr Hart’s entire knee structure was ‘wiped out’ and he had suffered significant nerve damage and would likely need a full knee replacement in the future.
Mr Hart sued the three defendants for having the boundary line too close to the fence, leading to a dangerous ‘hidden trap’ for football players.
The Club is part of the South Metro Junior Football League (the League). The Bayside City Council (the Council) was the owner and occupier of the Reserve. The Club occupied the Reserve for the football season by agreement with the Council and was responsible for marking the boundary line. The Victorian Amateur Football Association (VAFA) – of which the Club was a member – required a minimum distance of 3 metres between the painted boundary line and the fence.
President of the Club at the time, John Collins, gave evidence that he marked the boundary line every Friday during the football season. He did this by marking a straight line out from the point post to a distance 4.5 metres from the fence. He would then proceed by painting the arc of the boundary by sight, maintaining that distance from the fence.
The plaintiff’s evidence as to the precise circumstances of the incident was somewhat vague, but other eyewitness testimony led the trial judge, Judge Robert Dyer, to the conclusion that Hart had not been pushed by any other player when leaping for the mark and that he had been within the boundary line when he commenced his leap.
This was not, however, the primary evidence that the trial judge relied on in his finding that the boundary was marked at a distance less than 3 metres. Instead, he made use of an aerial photograph from 2010, the season after the injury occurred. Adopting the use of a scale and making adjustments for the different position of the goal posts in that season, he estimated that the boundary would have been only about
2.52 metres from the fence at the point where the accident occurred. Consequently, the trial judge found that the three defendants had breached their duty to the plaintiff in failing to ensure that the boundary was marked in compliance with the 3 metre requirement laid down by the VAFA.
The trial judge awarded damages in the sum of $589,525 together with interest. Because the Club and the League were more familiar with the Reserve and frequently used it, they were held jointly responsible for a 60% contribution. The Council was held liable for 40% on the basis that it had modified its risk management protocols so that Council officers would not need to check the boundary markings, even on random visits to the ground. While the trial judge accepted that the Council could delegate its duty of care, it was found that it had in fact abrogated it by not taking any positive steps to carry out its risk management plan.
Each of the defendants appealed the decision on the basis that the factual finding by the trial judge that the boundary was less than the prescribed 3 metres from the fence was based on judicial speculation and insufficient evidence. In a joint judgment, Justices Osborn, Beach and Kaye dismissed the appeal.
Court of Appeal Decision
The Court agreed that the method adopted by the trial judge in using the 2010 aerial photograph was inappropriately speculative, given that it had not been submitted at the trial that the photograph should be used for that purpose. The judge had not allowed for a margin of error in his measurements and had not accounted for the angle from which the photograph was taken. Any finding of breach of duty based on the photographic evidence could therefore not stand.
The appeal proceeded as a rehearing, with Hart contending that the trial judge should have found negligence on the basis of the other evidence. The Court noted that this evidence was largely circumstantial in nature.
The evidence from those at the ground supported the conclusion that Hart was probably within the boundary line when he took the mark. No-one heard the boundary umpire’s whistle to signal that the ball went out of bounds. The Court placed significant weight on evidence by Robert Collie, former president of the junior Club, and Collins, who had painted the boundary line. They both conceded under cross-examination that, if Hart hit the fence in circumstances where he was not pushed or had been out of play when leaping, then ipso facto the fence must have been too close to the boundary. In the context of the case, the Court interpreted ‘too close’ as meaning less than 3 metres.
The 2010 photograph was, however, considered to have some relevance in that it supported the proposition that the distance between the boundary and the fence was at its narrowest near where the accident occurred. Collins conceded that this was the case during the 2009 season as well. This evidence supported the essentially circumstantial conclusion that the fence was less than 3 metres from the boundary where the accident occurred. The Court of Appeal was therefore satisfied, on the balance of probabilities, that each of the defendants failed to take reasonable care to ensure that the boundary line was marked within the minimum distance requirement and that this was the cause of Mr Hart’s injury. The court did not disturb the trial judge’s liability apportionment, and the quantum of damages awarded was not the subject of appeal.
Mr Hart can perhaps count himself lucky to have kept his damages award, given that the decision was largely based on circumstantial evidence where possibly there was an element of judicial sympathy for his sporting misfortune. Had the Victorian statute book contained a provision similar to the ‘dangerous recreational activity’ provisions (ss. 5J-5N) of the NSW Civil Liability Act 2003, the defendants may have been able to make out a successful defence to the claim. The decision is also a timely reminder to councils that, if they do intend to delegate any particular duty to users of council property, they should do so in a way that does not amount to a complete abrogation of such duty.
Authored by Michael Martin, Partner (and Sydney Swans supporter), and Harry Weir, Paralegal (and Melbourne Demons supporter), Melbourne
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