Bartels v Bankstown City Council [1999] NSWCA 129 | Case summary

1 PRIESTLEY JA: I agree with Sheppard AJA. 2 STEIN JA: I agree with Sheppard AJA, his reasons and proposed orders. 3 SHEPPARD AJA: The appeal in this matter comes from a judgment of the District Court (Blanch CJ) in which his Honour dismissed an action brought by the appellant against the Bankstown City Council, the Bankstown District Amateur Soccer Association and the Cantebury & Soccer Football Association. I shall hereafter refer to the first of the respondents as "the Council" and collectively to the second and third respondents as "the Associations". 4 The account of the facts of the matter which I am about to give is substantially taken from his Honour's reasons. The incident in respect of which the appellant sued occurred on 8 May 1994 at Neville Park in the Bankstown Municipality. The appellant, who was thirty-four years old at the time of her injury, played soccer for a team known as Roselands and representative soccer for the third respondent. The third respondent, and also the second respondent, were associations formed for the purpose of promoting soccer. The second respondent sponsored a team known as St Christophers which opposed Roselands in the match in which the appellant was injured. 5 In his Honour's words, the Associations were conducting their affairs jointly, "in effect as one team or as one club". They arranged for a roster of soccer matches. In the course of the match on 8 May 1994, the appellant fell and broke a bone in her left leg. His Honour said that the fall had caused a number of "injuries and ramifications" which had lasted up to the time he delivered the judgment. He said that, as a result of the injuries suffered by the appellant, her lifestyle had changed quite significantly. She was subjected to ongoing pain and was unable to lead her life in the fashion she had led it before the accident occurred. 6 At the trial one of the principal questions between the parties concerned the manner in which the injuries were caused. The evidence of the appellant was that an opposing player had been dribbling the ball in the direction of the appellant's end of the field. She kicked the ball "somewhat harder" and it went out ahead of her. She sought to clear the ball by running up to it and kicking it out over the sideline. In the course of doing so, she put her right foot to the ground and then her left, but the left foot became wedged. This caused her to fall. She did not see any hole in the ground. 7 The appellant's mother, Mrs Martin, was a spectator at the match. She said that the appellant was turning at the time of the fall. As his Honour said, this would give rise to speculation that the appellant just fell over because she was turning at the time she intercepted the ball. Mrs Martin also said that the appellant had told her that she had fallen over in a hole. That was not evidence given by the appellant herself. His Honour said that he was not satisfied that the statement had been made. But Mrs Martin also said that she did see a hole, in his Honour's words a "significantly sized hole", near where the appellant had fallen. His Honour said that that was some evidence of the hole although he thought that the mother's evidence had to be looked at with "some degree of care". 8 His Honour next referred to the evidence of a police constable, Ms Karastesi, who was a member of the appellant's team. She said that the appellant was moving towards the sideline. Ms Karastesi saw her right foot go forward, her left foot stop, and saw her fall to the right. She said that it was as if the appellant's foot got caught. There was a sudden stopping and falling. She went to the area where the fall occurred and saw a hole in the ground. She said that the appellant's foot was half in the hole and half out of it. She described the hole as about thirty-five centimetres across and four centimetres at its deepest. She said there was an indentation in the hole in the appellant's direction of travel. His Honour said that, in general terms, Ms Karastesi gave an account of the incident which would lead to the conclusion, if her evidence were accepted, that the appellant did in fact probably fall over in a hole. That was the explanation for the sudden arrest of her movement and her sudden falling. His Honour accepted this evidence. 9 Another witness, Ms Laspina, who was a spectator and a friend of the appellant, said that she saw the appellant run towards the ball. She saw her stop and fall. The stopping was sudden "as if she had hit something or stumbled". She heard "a loud snap". She also saw the hole observed by Ms Karastesi. She described it as being thirty-three centimetres across and about five centimetres deep. She said that the appellant was about a metre to a metre and a half from the hole. The bottom of the hole was sandy. 10 Ms Cuthel, who was a member of the appellant's team, also saw a hole but did not observe its dimensions. It had sand at the bottom of it. 11 There was evidence suggesting that no hole was present. His Honour referred to this in some detail but he did not accept it. He said that he had no hesitation in concluding on the balance of probabilities that there was a hole in the field which presented potential danger to players. His Honour found that the hole was the cause of the appellant's fall and thus the cause of her injuries. 12 His Honour said that the problem in the case was to determine who was responsible for a breach of the duty of care owed to the plaintiff. The case against the Council was based upon the fact that it owned and operated the field. It operated many other similar fields in its area. His Honour found that there was a regime in place for maintaining the field. This involved weekly mowings of the playing surface and fortnightly mowings of the surrounds of the field. Also involved was the marking of the field. Evidence was given that maintenance crews went to the various fields with "sandy earth" for the purpose of repairing any holes in the playing fields. 13 His Honour came to the conclusion that there was no basis in the evidence to enable him to find that there was a breach of a duty of care by the Council in its general upkeep of the playing fields. He said that one of the factors to be taken into account was the expense of doing other than was done by the Council. He said that the evidence given in the case was that it was not financially feasible to do anything other than what was done and that what was done was reasonable and "standard trade practice". I shall refer to the evidence relied upon by his Honour for this conclusion in a little detail in a moment. 14 His Honour, having said what he did, continued: "Now arising from all of that evidence I cannot find that Bankstown Council was in breach of a duty of care. Clearly as the owner of the fields it did owe a duty of care to prevent foreseeable injury occurring to persons who would use the field in normal use but, as I have said, I cannot see in the circumstances of this case that there was a breach of that duty of care." 15 His Honour found a verdict for the Council and dismissed a notice of contribution served upon the Council by the Associations. 16 His Honour then turned to consider the case against those respondents. As he said, they were the parties which organised the matches to be played and which chose the grounds and invited the appellant and others to play soccer on them. It was claimed that they were liable because they did not take upon themselves the responsibility of inspecting fields upon which they had invited the players to play. His Honour referred to some authorities and said that the question was whether there was a breach of the duty owed by the Associations "by maintaining the Neville field as a designated ground for playing matches". The evidence in support of the contention that it was consisted of the fact that the ground in question was commonly used. It was regularly kept up by the Council. Furthermore, evidence was given by both the appellant and the referee for the match, Mr Carr, that it was the duty of the referee before each match to inspect the field and ensure that all fittings and markings were in place and that the field was safe to play on. That included not only the removal of any dangerous objects, for example glass which might be on the field, but also the filling in of any holes and an inspection of the terrain. His Honour said that what was submitted by the appellant was that, in spite of the fact that that was the regime which everyone knew was in place, there was a breach of duty by the Associations because they did not take the extra step of carrying out an independent inspection of the ground on a daily basis. When his Honour says "on a daily basis", I take him to mean on days when matches were to be played. 17 His Honour's conclusion was expressed as follows: "I cannot myself see in the failure of the clubs, the second and third defendants in this case, any breach of the duty of care owed to its members in failing to do that. There cannot be any doubt that the club owes to the players a duty of care and Noak's case [Noak v Waverley Municipal Council (1984) Aust Tort Reports 67801] is a clear example of an instance where such a duty of care was breached. In this case however the clubs were entitled to rely upon the fact that there was a well recognised regime of maintenance and inspection of well recognised playing fields and I cannot find a breach of any duty of care they owed in the fact that they did not then, independently, carry out on a daily basis an inspection of the fields." 18 His Honour concluded that there should be a verdict for the Associations. 19 Towards the end of the proceedings, the appellant sought an adjournment for the purpose of joining the Referees' Association. His Honour indicated what the likely outcome would have been if that Association had been joined. He said that, if it were accepted, as the only evidence before him established, that it was the referee's duty to inspect the ground, it must follow that, with the existence of a hole of the proportions found, there was negligence in not filling that hole and removing that danger before the game was commenced. Nevertheless, his Honour refused the application to join the Referees' Association and dismissed the appellant's claim. 20 It is next necessary to refer to the evidence of three witnesses. These are Mr Westall, Mr Keys and Mr Carr. Mr Westall, who was called in the Council's case, described himself as a turf grass consultant for the Australian Turf Grass Research Institute. He has a trade certificate in green-keeping and is currently engaged in a post graduate course in turf management at the University of Sydney. He said that his job mainly involved him in looking at problem areas in golf courses and other sporting surfaces. He visited the Neville Reserve in 1996 at the request of the Council's solicitors and prepared a report. The inspection made by Mr Westall was carried out on 29 August 1996. His conclusion was as follows: "Based on the surface observations on the day and the fact that the field is a multi use city council grade field, the playing surface is regarded as satisfactory for amateur sport. This grade of field cannot fairly be compared to higher grade playing fields as they do not possess sophisticated construction design, high grade soil profiles, and highly qualified permanent ground staff, and intensive turf culture maintenance practices. User demands of council fields is often concentrated on weekends and midweek by many users and is often used in wet conditions which result in compacted soils and deterioration of the turf cover. When grass over is destroyed, play causes erosion which leads to distinct shallow surface depressions typical of goal mouth and centre sections of the field. This also leads to a knobbly surface where soil is held in the residue of the turf." 21 Mr Westall also said that, in his opinion, the current grass coverage, weed invasion and large depressions (emphasis added) were a normal consequence of playing fields of "this grade and use". He said that, in relation to the Council's maintenance program, the interval of mowing was acceptable considering the turf species and that weekly visual inspections of the playing surface by field staff and reporting to their supervisor might be subjective depending on the staff member's training in turf culture, playing field preparation and player safety. He said that there was no official industry standard for playing fields. 22 Mr Westall's oral evidence was in part as follows: "Q: Is it right that from time to time when any sort of contact sport is played on a grass field the ground is going to be cut up as result of what's going on in the game? A: Yes, yes of the areas where the grass would become void. Q: And divots dug up? A: Yes Q: And apart from having someone at the ground at all times when all games and training is going on with a bucket of dirt to fix up such events when they happen is there anything that can be done to avoid that? A: No it's just the nature of the game as I understand it. Q: Can I ask you to imagine this if you can, a thing in the surface of a playing field, it's about the size of a manhole or perhaps some 30 centimetres in diameter, it's about 4 centimetres deep at its deepest although inside the surface is uneven. … Is there any way that anyone can simply by observing such a hole or referring to a description of it reach any sensible opinion as to how long it's been there? A: No that wouldn't be difficult in my opinion." 23 Also called in the Council's case was Mr Keys. At the time he gave evidence he was employed by the Bankstown Golf Club as a greenkeeper. Before that employment he worked for the Council for about fifteen years. He held the position of technical overseer. His job was to supervise a number of public areas in the municipality. One of these was Neville Reserve. He said that there were fifty-two soccer fields, thirty-eight rugby league fields and various other sporting fields. His task was to supervise the maintenance of about two-thirds of these. For this purpose, he had numbers of people working at the grounds. He said the system in place was that each of the fields was mown weekly. The surrounding areas of the fields were mown every two to three weeks in summer and every six weeks in winter. The line markings for the sidelines for soccer were marked weekly and any other maintenance was carried out. He referred to the filling in of holes, the repair of fences and the line marking. He said that the people that did the lawn mowing were, for the most part, the same people who did the line marking. He said his practice was to see the various workmen each morning. "They have a system of parks which they do in a row." He told them exactly what he wanted done at each particular field from previous checks which he himself had made. Instructions were given to them to repair sprinklers that were not turning, to fill in holes, to fill in edging around cricket pitches, and various other things. In relation to holes, he said that, if he saw holes that needed filling on one of his site inspections or received a request from "the Association" or the public, he passed the request to his workmen. 24 He said that the method of fixing holes was to take a trailer of soil and fill holes in. He said that the men themselves would do site inspections every time they were on a site. They would always have the trailer of soil with them in case holes were discovered. If he received a report about a hole in a particular ground, he would either inspect it himself or pass on the information to his staff. 25 Mr Keys endeavoured to visit each field on a two week roster. His practice was to walk around the whole field checking for anything, "safety inspections and things like that …". He recalled no complaint about the standard of the ground at Neville Reserve either in 1994 or at any other time. In the course of his evidence he described a system which was designed to enable complaints to be dealt with. He said if there were a complaint about the Neville Reserve, it would come to his attention. Mr Keys also said that, on occasions, referees reported problems to the Council. Every three or four weeks the Associations sent down a copy of the minutes of meetings in which there was a record of problems referees had encountered. Sometimes reports came on a more frequent basis. Sometimes referees reported problems directly to Mr Keys. 26 In the course of his cross-examination Mr Keys said that some of the sites had numbers of fields. He estimated there were 32-35 different sites in the municipality. He said that Neville Reserve was not one of the Council's top ranking playing fields. He agreed that this meant that sometimes it might be three weeks between his visits. 27 Mr Keys said that sometimes he would see holes or divots that were clearly old ones "or more than a week or two old". He said that it was possible that these had "built up over time" because somebody had missed them. Either they had been overlooked or they were filled but had become worn again. His evidence continued: "Q: And depending on the time of the year you could put a bit more fill in them if it's mid season and hope that that fill lasts for the next week or two? A: Yes. Q: And if it's at the end of the season you might do some digging up and re-turfing? A: Yes. Q: And if it's the time for a full resurface the whole thing would be ripped up and relaid? A: Yes we've taken out -- Q: But there's no doubt that for whatever reason holes could appear and remain for a few weeks during the playing season? A: Yes that's possible." 28 Mr Keys mentioned that referees inspected grounds before games were played. His evidence continued: "Q: Would you agree with me that taking into account the manner of inspection, possible delays, possible overlooking, possible other factors in ground maintenance, it was entirely possible that on one day in question there could have been a hole in one of these playing fields that was about 30, 35, maybe 40 centimetres across and 4 or 5 centimetres deep? A: I don't think 4 or 5 centimetres deep would be allowed without us noticing it or without the referees before the game I would say no. Q: Well you say it could have been there but you would have heard about it? A: Four or five centimetres is a big hole. Q: Certainly is? A: Yes. Q: But those are the holes that at times you've had drawn to your attention? A: Yes. Q: And they've been filled? A: Yes. Q: And sometimes the fill works? A: Sorry? Q: Sometimes the fill stays in the hole? A: Fill, yes. Q: And sometimes for whatever reason the fill is worked out or kicked out or played out and the hole has to be refilled.? A: Yes." 29 Mr Keys conceded that he had no "grid system" by which there could be a precise coverage of the ground as he walked over it. He agreed that it was a matter of his walking over it to satisfy himself that there were no problems, "holes, or anything like that". He said it was his practice to walk up and down the field at least four times. He agreed that it was possible to miss a hole. 30 In the course of his re-examination he said that he did not think that it was probable that a hole would be missed because a proper search was carried out. He was asked whether there was any other "viable system" which could have been used. His answer was, "With the resources you could turf each hole but resources wouldn't allow that". He said that Neville Reserve was used for soccer training as well as for matches at the weekend. It had lights for this purpose. 31 I next refer to the evidence of Mr Carr. He had been refereeing soccer matches for eight years at the time he gave evidence which was in 1997. That means he had been a referee for approximately five years at the time of the match in question. He gave evidence about his qualifications to be a referee. He said that his governing body was the Australian Affiliated Soccer Referees' Federation and that there were district bodies under that. His "immediate body" was the Bankstown branch of the Federation. 32 A reading of Mr Carr's evidence discloses that his recollection of the match in question was not particularly clear. He remembered the incident in which the appellant was hurt but he confused the team for which she played, Roselands, with the opposing team, St Christophers, for whom he said she played. 33 Three matches were played on the day in question. Three referees were engaged, one for each match. The two referees who were not acting as referees for a particular match acted as linesmen. An inspection of the ground was carried out by the three referees before the first game commenced. No inspection was made thereafter. The game in which the appellant was injured was the second game. Apparently it was considered that the inspection before any match was played was sufficient for all three games. 34 Mr Carr said that there was a routine that was followed each time an inspection was made but that the method of carrying out the inspection varied from time to time. He said the routine inspection was called a "field inspection". He said that one of the tasks was to look for the "compulsory fittings" according to the laws of the game. By that he meant corner posts and line markings and also nets. Nets were not compulsory but were usually required by the teams. He also said that while those inspecting the ground were "moving about the field", they looked for "compulsory [sic] and dangerous things"; "you inspect the surface of the field". He said that in this connection he was particularly looking for "dangerous matter". He said that he had found at times broken glass and tent pegs. He said that he was looking for anything dangerous. He said that amongst things that could be dangerous were holes in the ground. 35 Although he gave evidence of his routine, he was unable to recall carrying out the inspection on the day of the accident. All he was able to say was that, in accordance with his routine, he would have done an inspection. He agreed that he could not say precisely how the inspection was done. 36 He described the incident in which the appellant was injured. I do not refer to the detail of his evidence in that regard. He saw nothing untoward about the field before the accident but noticed something thereafter. He described it as "a crescent". The "crescent" was a crescent-shaped mark in the surface of the field, "an arc shape where the top layer of grass had been taken off. It was about three or four inches wide, not very deep and fairly level". He saw nothing else of significance on the surface of the ground and did not see any hole. Certainly, he saw no hole four to five centimetres deep. Mr Carr was asked what size of hole would concern him. He said: "You'd have to look at depth. I get concerned when I see patches of bare earth with a tuft of grass on it because that's an uneven - that could trip somebody up. I've got no answer to what minimum hole would concern me really. Anything that I would consider dangerous to a player." 37 I next refer to the findings made by the primary Judge. As mentioned, his Honour found that there was in fact a hole in the playing surface and that this had caused the appellant to fall when her foot became caught in it. His Honour considered the evidence of Mr Westall, Mr Keys and Mr Carr as well as the more general evidence given by the participants and onlookers and the appellant herself. He concluded that, so far as the Council was concerned, it had a system in place which required regular inspections of grounds under its care and supervision and that, in all the circumstances, it had responded reasonably to the risk of injury which there undoubtedly is to players because of holes or depressions in playing surfaces. His Honour decided that the Associations should escape liability because they were entitled to rely on the regular inspections of grounds upon which their teams played by the referees and linesmen appointed to oversee matches by the Referees' Association. Presumably this is a reference to the Federation mentioned by Mr Carr. 38 Specifically his Honour found that "the hole" did exist and that it was a potential danger to a player on the field. He found also that the hole was the cause of the appellant's fall and therefore the cause of her injuries. Earlier he had said that the hole was one which presented a potential danger to players on the field. He referred to evidence given by Mr Carr to the effect that, although he did not see the hole, if there had been such a hole, he would have filled it in obviously because such a hole would represent a danger to players. 39 In the submission of counsel for the Associations, his Honour made no finding as to the size of the hole. I do not agree with this because of what he had earlier said when referring to the evidence of Ms Karastesi who was a member of the appellant's team on the day in question. He referred to her version of the fall. This has been earlier recounted. For present purposes it is enough to refer again to her evidence about the size of the hole which she observed. She described it as about thirty-five centimetres across and about four centimetres at its deepest. She said there was an indentation in the hole in the appellant's direction of travel. His Honour said that he found Ms Karastesi to be a very impressive witness. He believed that she was being honest and as accurate as she could be in the circumstances. It is true that his Honour then goes on to discuss the evidence of other witnesses including that of Ms Laspina who was a spectator and who had also seen the appellant stop and fall. But she saw a hole which she described as being thirty-three centimetres cross and about five centimetres deep. Thus her evidence was substantially consistent with that of Ms Karastesi. 40 After reviewing the evidence further, his Honour made the findings to which I have referred. It would seem to me that he was, in making those findings, concluding that the hole in question not only existed but was a significant hole and was of the order of thirty-three or thirty-four centimetres long and four or five centimetres deep at its deepest point. I think those conclusions are implicit in the findings made in the judgment. I would therefore reject submissions made on behalf of the Associations to the effect that his Honour did not make any finding about the size of the hole. 41 It is clear from his Honour's judgment that he took the view that the people who were at fault were the referees. He was convinced by what he had heard that the inspection made by the referees and the linesmen prior to the match beginning could not have been adequate. His Honour expressed himself in strong terms. In the submissions made by counsel for the appellant, there is mention made of an independent action pending against the Referees' Association (or Federation) and the individual referee for the match. The Council strongly objected to this matter being referred to. I have two comments to make. Firstly, the fact that there is an action pending in relation to the same injury against another party is of absolutely no relevance to the outcome of the present appeal. I do not understand why it was referred to in counsel's submissions unless it was hoped in some way to gain something by suggesting to the Court that the appellant did have a right of redress for the injuries she has suffered. If that was the purpose of it, the exercise has been a dismal failure. The matter is without any relevance whatever. 42 The other comment I wish to make is that I have not taken any notice either of his Honour's strong criticism of the referees. The referees were not parties to the action nor was the Referee's Association or Federation. They have never been heard on the matter and, with due respect, it was not a correct course to take the view that there was probable liability in someone who had not had an opportunity of presenting a case and who was not a party to the proceedings with which his Honour was dealing. It should be mentioned at this point that only Mr Carr of the three referees or linesmen who were present was called. The other two were not. But, it was agreed by counsel for the appellant at the trial that no adverse comment would be made because of the absence from the witness box of the other two members of the refereeing team. This was apparently because it was realised that the other two referees would be unlikely to give evidence different from that given by Mr Carr. 43 Having cleared those matters out of the way, I need to come directly to the question whether his Honour was wrong in his conclusions that neither the Council nor the Associations were liable. 44 There is no direct evidence about it but it should be accepted that soccer is a fast moving, highly competitive game. It is one which requires intense concentration by the players on the ball and the making by them of split-second decisions as to what response they will make to movements by the opposing side and what opportunities there are for attacking that side's goal. It is not a game - golf provides an example of a different kind of game - which gives players any great opportunity to watch their footing as they move about the field. 45 On the other hand, and this seemed to be accepted by all sides, one cannot expect every field in the area of a council such as the one here involved to be kept in the way that some of the ovals used for soccer or other types of football are kept. It would be wrong to require a council to provide playing surfaces of the quality of the Sydney Football Stadium, the Sydney Cricket Ground, the Olympic Stadium, and perhaps some others, for games such as were played on the day the appellant was injured. In the nature of things, playing surfaces used for those games will have degrees of unevenness in them. But desirably they ought not to have holes of the size of the one which existed in the present case. 46 Mr Carr made it clear that one of the purposes of a referee's inspection of grounds was to ensure that there were no dangerous objects lying on the ground which could be the cause of injury to players or referees. He instanced glass, particularly broken glass. Broken glass could be the cause of very substantial injury to a player who was unfortunate enough to fall on to the glass in one of the melees which would develop in almost any game of soccer. Broken glass can be hidden from view even in grass that is regularly mown and thus kept quite short. It is not always easy to see any more than I suspect some holes are easy to see because they tend to become covered by the surrounding grass and are thus masked from the view of those who endeavour to find them. 47 The duty of the Council in the present case is not an absolute one. The Council does not warrant or guarantee the state of the surface. It must act reasonably in all the circumstances. But no standard of perfection is imposed upon it. If one were to impose such a standard on it, it would probably bring an end to the use of grounds such as the one here for club soccer and other club football games played in the Council's area. It would have to decide whether it could afford the much more detailed inspections of the grounds than it can apparently afford to carry out at the present moment and weigh the cost factor against the public interest in making the grounds available. 48 There is, of course, the question whether there is not disclosed here a casual act of negligence consisting of the failure of one of the Council's employees - I leave aside the Associations for the moment - to observe a hole which should have been observed in the course of the ordinary inspections which were made. One of the great problems about this is that one does not know how long the hole was there before the appellant suffered her injuries. The evidence does not permit one to draw any conclusion about it. True it is that Mr Westall said that it would be possible to tell the age of a hole but there is no evidence that anyone made an attempt to look at the hole for that purpose when it was visible immediately after the accident. That is understandable having regard to the failure (also understandable) of anyone to perceive at that stage the desirability of attempting to preserve the hole until it could be inspected by someone with sufficient knowledge to make a judgment about its age. One does know that the appellant was engaged in the second game of soccer to be played on the day in question. So one game and twenty or twenty-five minutes of the second game had been completed without apparent incident on the afternoon in question. Apparently no-one had seen the hole and no-one had been impeded by it during the course of the play that had occurred down to the time of the appellant's injury. Furthermore, there was no evidence called in the case from anyone to the effect that holes had, on previous occasions, caused problems. Mr Keys' evidence in this regard is unchallenged. This may be because the Council has in place a system of filling holes when they are found. This, coupled with the referees' practice of filling any holes found by them on their pre-match inspections, may have ensured that usually holes were not a problem. If that be so, the unfortunate fact is that this one slid beneath their guard and was the cause of the appellant's injuries. One could speculate that the hole in question had been earlier filled and that the filling had not been sufficiently compacted so that the filling was gradually kicked or moved out of the hole leaving it again exposed. There is no doubt that this is a problem with holes that are loosely filled as these have to be in the run of the season. Neither the Council nor anyone else has the opportunity of doing a proper job in filling holes on a permanent basis because of the need for the regular use of the grounds which are also used during the week for training purposes. 49 In all those circumstances it is very difficult to infer that the presence of the hole was the result of a casual act of negligence consisting of a failure to find the hole on one of the regular inspections which took place. It could not be correct to infer that the presence of any hole of the size of this one was without more an indication of a breach of a duty of care. If one took that view, one would be effectively imposing on the Council an absolute duty to ensure that there were no holes at all on its grounds. This would impose a standard of perfection which, in my opinion, the law does not require. In a playing field of this quality the best the Council can do is to have in place a system which is likely to result in holes being found. The fact that Mr Keys conceded that holes might escape attention does not itself mean the system which was in place had not been followed or was itself deficient. 50 The question which has to be asked is whether the Council's evidence sufficiently established that it was doing the best it could do in all the circumstances. True it is that it carried no onus of proof. But in question was the adequacy of its response to the risk of players being injured as the result of dangers existing on the field either because of holes, dangerous objects such as broken glass or otherwise. An assessment was required to be made of the magnitude of the risk which was involved. Undoubtedly, Mr Keys' evidence establishes that it was possible that holes such as the one in question could develop and be missed. His concession in that regard was very much relied upon by counsel for the appellant but in his re-examination Mr Keys said that, although it was possible that they could exist, it was not probable. The question for the Court is whether the Council's response was reasonable in all the circumstances. 51 There was no evidence from any administrative official of the Council giving an overall picture of what was involved in maintaining the many grounds under its control each week. There is, of course, Mr Keys' evidence to which I have referred, but he is not in a position to balance out the competitive demands on the Council's pocket bearing in mind the fact that it, like so many other public undertakings, is probably having the not uncommon problem of endeavouring to manage within difficult financial constraints. Of course, if it cannot manage with the money which it has, that does not excuse it if playing fields it provides for the use of members of the public are unsafe for the purpose for which they are to be used. The only course in those circumstances is for the Council to close the grounds and to refuse to permit a game such as soccer to be played simply because the grounds are unsafe and thus unsuitable for that purpose. 52 Naturally, one has a great sympathy for the appellant who has suffered a moderately severe injury. But the question is whether she has established that the Council failed in its duty to provide a reasonably safe playing surface for the game in which she was engaged. I am not persuaded by the various arguments which have been put that the Council did fail in its duty to her. Accordingly, I do not find error in the ultimate conclusion to which his Honour came in relation to the Council. 53 Then there is the question of the Associations. They made no bones about the fact that they carried out no inspection. They knew that there were the inspections of the ground carried out by the Council and the pre-match inspections carried out by the referees. They relied particularly on the referees to ensure that the ground was reasonably safe for the game which was to take place. The question is whether they were acting unreasonably in this regard. There is also the further question whether, if they themselves had carried out some form of inspection prior to the match, the hole would have been found. On the evidence there is no certainty that it would. 54 In passing I should mention that in evidence there is a copy of the agreement made between the Council and the Associations licensing the Associations to use certain grounds in the municipality. This reflects the contract which there was between the Council and the Associations. Plainly the agreement is irrelevant to the questions to be determined in this appeal. It was not suggested otherwise. 55 In the run of the submissions there was discussion about whether the duty owed by the Associations to a person such as the appellant was a non-delegable duty. The question, as always, is one of reasonableness. On reflection I have come to the conclusion that the Associations acted reasonable in relying on the Council and the referees to find any problems with the grounds upon which games were played. Again, I do not find error in his Honour's ultimate conclusion. 56 One further matter needs to be mentioned. Counsel for the appellant submitted that his Honour's decision not to permit the joinder of the referee or the Referees' Association or Federation in the proceedings reflected a miscarriage of his discretion. I would reject the submission. To allow the joinder so late would be likely to have resulted in delay and expense prejudicial to the respondents. That was the view his Honour took and it was well open to him to do so. The ground of appeal based on this matter should be rejected. 57 In the result I have come to the conclusion that the appeal should fail. I would propose that it be dismissed with costs.

Bartels v Bankstown City Council

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Cited By (1)