Beaumaris Football Club v Hart & Ors and Bayside City Council v Hart & Ors [2017] VSCA 226

Court of Appeal (Vic)|2017-08-30|Before: Mr J, Osborn JA, Beach JA, Kaye JA

NEGLIGENCE - Duty of care - Footballer injured on fence taking mark - Whether boundary line adequate distance from fence - Whether trial judge erred in analysis of evidence - Rehearing - Whether evidence establishes breach of duty of care - Competing inferences - Applications for leave to appeal granted - Appeals dismissed - Wrongs Act 1958 - (1993) 177 CLR 472 - (NT) (1998) 192 CLR 431 - ;

For the First Applicant/Second Respondent, Beaumaris Football Club, and the Second Applicant/ Third Respondent, South Metro Junior Football League

1 On 28 June 2009, the first respondent, Beau Hart, suffered extensive and severe injury to his left knee while playing football for the Beaumaris Sharks Under 17 team at the Banksia Reserve, Beaumaris, when he flew for a mark in the forward pocket of the ground and landed with his left foot on the boundary fence.

2 Mr Hart issued proceedings in the County Court against the Beaumaris Football Club ('the Club'), of which his team was a part, the South Metro Junior Football League ('the League'), in which his team competed, and the Bayside City Council ('the Council'), the owner and occupier of the reserve. It was common ground that the Beaumaris Sharks football team, and the Club, occupied the reserve for the football season by agreement with the Council. The trial commenced before a jury. The Club and the League were jointly represented. In the course of the proceeding, the jury was discharged, and, with the consent of each party, the judge continued to hear the case without a jury. In a reserved judgment, the judge found in favour of the plaintiff against each of the three defendants, and awarded him damages in the sum of $589,525 together with interest. In the contribution proceedings between the defendants, the judge directed that the Club and the League contribute 60 per cent of the damages payable, and that the Council contribute 40 per cent.[1]

3 The Club and the League seek leave to appeal against the finding that they were liable in negligence to Mr Hart and, consequentially, to contribute to any liability of the Council to Mr Hart. The Council filed an application for leave to appeal against the finding that it was liable in negligence to Mr Hart and to contribute to any liability of the Club and the League. Neither the Council, nor the Club and the League, have sought leave to appeal against the judge's assessment of damages. Mr Hart contests the applications for leave to appeal and has filed a notice of contention in response.

4 The submissions made by each applicant focus on the finding by the judge as to the distance between the boundary line marked on the oval and the fence line, and in particular, on the judge's finding that that distance failed to comply with the minimum requirement (3 metres) specified by the Victorian Amateur Football Association ('VAFA'), of which the Club was a member. In addition, the application for leave to appeal by the Council raised the issue whether it had wholly delegated to the Club and the League its duty of care in respect of the placement of the boundary line on the oval. However, the Council abandoned that issue before the hearing of the application.

5 At the time of the incident, Mr Hart was 17 years of age. He gave his height as 6' 3" tall and he was playing at full forward on the day of the incident. At some time during the first quarter of the match, the ball was kicked out of the centre area towards the forward pocket in the south-western part of the ground. Mr Hart ran at top pace towards the pocket area, and leapt into the air near the boundary line in order to mark the football. His evidence was that he was clear of his opponent, who was behind him. He got his hands to the football but was unsure whether he completed the mark. As he landed, his left boot caught in the cyclone wire fence around the ground, and he crashed to the ground, severely injuring his left knee.

6 Banksia Reserve in Beaumaris is a relatively large oval by the standards of local football grounds. Shortly before the incident, Mr Hart was positioned at the southern end of the ground. At the trial of the proceeding an aerial photograph of the ground, taken in 2010, was tendered in evidence. A pavilion was positioned in the south-west corner of the ground. Immediately to the east of it, is an area for cricket practice nets which were separated from the oval itself by three sets of steel gates. Further to the east of the practice wicket area is a fenced area housing a roller that was used during the cricket season. A different photograph, that was tendered in evidence, depicted the plaintiff being attended immediately after the incident while located inside the ground between the fenced area where the roller was kept and the cricket practice wicket area.

7 The fence surrounding the ground comprised steel mesh fencing which was in the order of 77 to 93 centimetres in height.

8 The Council was responsible for inserting and removing goal posts and behind posts at the beginning and end of each football season. The Council had placed five footings (or 'sleeves') in the ground to hold the goal and behind posts at each end of the ground. That enabled the posts to be moved back and forth by one goal width each year in order to provide some protection for the turf in the goal square. In 2009, the posts were one goal width to the west of the position that they are depicted in the aerial photograph. The posts are 6.5 metres apart. The position of the western most sleeve for placement of a behind post was measured at the view, conducted before the jury, to be 5.1 metres from the boundary line. It was common ground that, pursuant to its arrangements with the Council, the Club had the responsibility for marking, and did mark, the position of the boundary line on the reserve.

9 In the course of the trial a number of documents were tendered in evidence. They included a document entitled 'AFL Preferred Facility Requirements'. That document prescribed a 'preferred' minimum distance between the boundary line and the fence of 3 metres for 'local level facilities'. It was accepted at the trial that that policy applied to the football matches being conducted at Banksia Reserve. In the course of evidence, and in submissions, the policy was variously referred to as 'the AFL policy' and the 'VAFA policy'.

10 As we have mentioned, the principal issue, on the application for leave to appeal, concerns the factual conclusion by the judge that the distance between the marked boundary line and the fence, with which the plaintiff came into collision, was significantly less than the requirement of a minimum 3 metres, and was inadequate. Before summarising the judge's conclusions in those two respects, it is first necessary to set out, in a little detail, a summary of the evidence relevant to those issues.

11 The plaintiff, Mr Hart, gave evidence as to the circumstances in which he injured his knee. As mentioned, at the time he was positioned at full forward at the southern end of the ground. After the ball was kicked out of the centre of the ground, he ran, at a fast pace, towards the forward pocket. His opponent was behind him, but not near him. Mr Hart leapt for the ball and got his hands to it, but he could not remember if he marked it. He landed halfway up the fence with the studs of his left boot stuck in the fence. At no time was he pushed or shoved by any opponent.

12 In cross-examination, Mr Hart stated that when he leapt to take the mark he had no idea where the boundary line was or where the fence was. He said he would not have gone for the mark if he knew it was going to be kicked over the fence. He was at the front of the pack, in front of other people, and no-one was around him. He repeated that he was neither pushed nor knocked when going for the mark. When he got his hands on the ball, he did not know where the boundary line was.

13 Christopher Morley, a supporter and sponsor of the Beaumaris Football Club, also witnessed the accident and gave evidence in relation to it. At the time of the incident he was standing near the clubhouse, beside the race where the home team ran out. Mr Morley saw Hart going for the mark, and fall to the ground, but he did not see him land on the fence. The boundary umpire did not call the ball 'out of bounds'.

14 Scott Ecclestone was a regular attender at football matches in which the Beaumaris Football Club participated. He arrived at the ground as the incident occurred. He saw Mr Hart running to take the mark at an angle towards the fence. He described how Hart attempted to mark the ball and landed with his left foot impaled into the fence. He said that the incident occurred in the forward pocket in front of the cricket net area. Mr Hart was not pushed, shoved or contacted by any other player before he hit the fence. In cross-examination, Mr Ecclestone stated that Hart was sprinting at the time that he leapt to take the mark. He did not see anyone within arm's length of him at the time. He confirmed that he actually saw Hart hit the fence before he landed on the ground.

15 Shane Rayner was the assistant coach and runner for the Beaumaris Sharks Club Under 17 Team for 2009. He was present at the ground in that capacity on the day Mr Hart was injured. At the time, Mr Rayner was in the coach's box near the wing. He said that the ball was kicked into the forward pocket. Beau Hart was at full forward and he led out at pace to take the mark. As he came down, he struck the front face of the boundary fence with his leg. He was not pushed, shoved or knocked. He said that he had not measured the distance from the boundary line to the fence anywhere on the ground, but there was more space between the boundary line and the fence on the wing than at the end of the ground in the forward pocket.

16 In cross-examination, Mr Rayner stated that he did not see Hart pushed or bumped before he took the mark. He was running at full speed to take the mark. He did not hear the boundary umpire call the ball out of bounds.

17 In cross-examination on behalf of the Council, Mr Rayner stated that it was the responsibility of the Club to mark the boundary lines.

18 Sonia McNally was manager of the senior team of the Beaumaris Football Club in 2009. She gave evidence that she had completed a ground inspection report on 20 June 2009, eight days before the accident. A copy of the report, signed by her, was tendered in evidence. She also produced a DVD of the seniors football match that was played on that date.

19 Ms McNally's inspection included noting that the boundary line was 3 metres from the fence at all points. She said that she did not need to check the precise distance from the boundary line to the fence each week because it was the same for each game of the season. In 2009 the distance between the boundary line and point post near the clubhouse was 4 metres or 5 metres. She rejected a suggestion that the distance was 2 metres, 2.4 metres or 2.5 metres. She said that she did not receive any complaint that the distance between the boundary line and the fence was too narrow. Shortly before the trial, Ms McNally asked her son to pace out the distance between the boundary line and the fence, and it was between 4.5 metres and 5 metres, which she regarded as being 'similar' to what she had observed in 2009.

20 In cross-examination, Ms McNally stated that before filling out the ground inspection report, she carried out the inspection, but the manager of the other team did not. She said that when her son measured the distance between the boundary line and the fence (shortly before the trial), he took five or six steps to do so.

21 John Collins, a former president and secretary of the Club, gave evidence on behalf of the Club and the League. He had had a lengthy involvement with the Club, and had been President until 2009. During his time with the Club, he had undertaken a number of voluntary duties for it including marking the ground. He said that he had taken over that duty in 2000 and had been doing so ever since.

22 Mr Collins stated that the requirement of the Victorian Amateur Football Association, under which he marked the ground, was that the boundary line must be 3 metres from the fence, and that he marked the ground in accordance with that requirement. He said that he marked and remarked the ground every Friday afternoon during the football season. For that purpose he used a line marker which was about one metre long. That machine could not be placed up against the goal post or behind post, so the line has to be painted into the post. Mr Collins explained that his initial marking was to run a line directly into the point post at both ends of the ground. From there he used his line of sight to follow the fence around.

23 Mr Collins confirmed that the behind post had been measured at 5.1 metres from the fence. From that point, the distance between the boundary and the fence would taper to about 4.5 metres, and the line would continue at a distance between 4.5 metres and 5 metres from the fence. He said that there was 'no way' that that distance would have been only 2.5 metres.

24 Mr Collins stated that the boundary line was further away from the fence on the eastern side of the ground, because that side of the ground 'contours up'. He said that at no time during 2009 did anyone from the Council conduct an inspection of the distance between the fence and the boundary line with him, and that no such inspection had been undertaken at any time while Mr Collins had had the duty of marking the line.

25 In cross-examination by counsel for the Council, Mr Collins confirmed that his practice in marking the boundary line was to draw a straight line from the behind post until it was about 4.5 metres from the fence, and then to start to paint it in an arc. Mr Collins agreed that, as President of the Club, he had signed documentation forwarded to the Council in relation to the ground occupancy agreement. He agreed that that documentation included an acknowledgment by the Club of the conditions of the occupancy. He agreed that he had measured the reserve recently, and found that the position of the goal and behind posts from the fence was 4.8 metres, although the Council had measured it at 5.1 metres.

26 In cross-examination by counsel for Mr Hart, Mr Collins agreed that the distance between the boundary line and the fence, in front of the cricket nets, is less than the distance between the line and the fence at the foot of the goal post. He said that he thought that at about the position of the cricket nets it reached the 4.5 metre distance, and he started his arc from there. He said that he marked the boundary in accordance with the VAFA guidelines that required a distance of 3 metres, but he marked it at 4.5 metres, in order to have a sufficient distance from grates that were on the eastern side of the ground (which were about 2.4 metres to 2.8 metres from the fence). He said that he would mark a distance of 4.5 metres from the fence with a white marker, and then he would paint the line from the behind post out to that marker and continue around. He said apart from putting that one mark on the ground, he would otherwise rely on his visual assessment of the distance of the boundary line from the fence. Mr Collins did not specifically remember seeing any AFL document relevant to the boundary line and the markings.

27 Mr Collins further stated that the offices of the Council were 10 minutes from the ground, and the Council had a key to the ground. To his knowledge, no-one from the Council had ever come to check the position of the boundary line on the ground.

28 Mr Collins agreed that if the evidence was that Mr Hart went for a mark inside the ground and landed on the fence, it could be assumed that the boundary line was too close. He said that in his 16 years of marking the ground and being at the ground, he had never seen a player hit the fence on the full. He agreed that a player should not be able to take a mark in play and then land on the fence.

29 In re-examination, Mr Collins stated that the boundary line markings were checked by the team manager during the season, and also by the umpires, so that if the umpires were not satisfied with their position, they would have to be moved. He said that no comment or complaint was made about the position of the boundary lines by an umpire during 2009. He said that he had been marking grounds for 16 years, and in all that time he had never been queried by umpires, teams or managers as to the position of the boundary line.

30 Mr Robert Collie was President of the junior club at the Beaumaris Football Club from 2007 to 2010. He also managed the Club's second ground, the Donald McDonald Reserve at Black Rock. He marked the boundary lines on that reserve every Saturday morning and he had continued to do so until 2015. He said that he marked the boundary line approximately 4 metres from the fence. He was very familiar with the Banksia Reserve ground. He said that, at the point at which the plaintiff was injured, he estimated the distance between the fence and the boundary line at 4.5 metres. He said that he knew where the boundary line had been over a number of years. In the week previous to giving evidence, he measured the distance from the goal post to the fence at about 5.5 metres, and the distance from the boundary line to the fence was 4.5 metres, which was wider than the corresponding distance at the Donald McDonald Reserve. He said he had never received a complaint concerning the distance between the boundary line and the fence at the Banksia Reserve.

31 Mr Collie stated that he had visited about 40 other junior football grounds in his role as coach and office holder at the Club. He said that the boundary line at the Banksia Reserve was a greater distance from the fence than at most grounds, because of the size of the Banksia Reserve.

32 Mr Collie confirmed that he had signed the junior football ground application for the 2009 season for the Club. He said that he was not aware of any inspection being made by a council officer of the ground. He said that he had a very close relationship with the General Manager of the League and that when there were issues he would raise them with the League. He said that from time to time representatives of the League would attend at the ground.

33 In cross-examination on behalf of the Council, Mr Collie said that the usage applications for both the junior and senior team were submitted together because the Club is one incorporated association. The senior application referred to a risk management plan. He agreed that the junior application contained a passage that the officials of the Club junior section had read the conditions which included that Bayside City Council's sports facility policy conditions of occupancy, and fully understood their meaning. He agreed that the sports facility policy provided that it was the role of the Club to mark the boundary lines. He said that there had never been an occasion when the Council had interfered with the position where the lines had been placed by the Club. He was not aware of any inspection of the grounds by Council officers at the beginning, middle or completion of the season as stated in the sports facility policy document. He agreed that the measurements, that he had taken recently at the Banksia Reserve, were from the goal post and not the behind post.

34 In cross-examination on behalf of the plaintiff, he said that the recent measurement that he had made was the only one he had been involved in. He said that the Banksia Reserve was significantly larger than the Donald McDonald Reserve, and there was ample room to run the boundary line from the goal post through the point post and to start on a continuous curve that would be maintained at 4.5 metres from the fence line. He agreed that it would be unlikely for a footballer to attempt to mark a ball, and land on a fence that was 4.5 metres from the position where he had commenced his jump.

35 In re-examination, Mr Collie stated that he had coached football teams on the Banksia Reserve in 2009. He believed that the boundary line was then in the same position, namely, about 4.5 metres from the fence. He said he could not imagine someone leaping for the ball within the field, and striking the fence on the full. In answer to a question from the judge, he said it was a fair conclusion that if a footballer flew for a mark within the field of play, and struck the fence without being pushed, the boundary line was too close to the fence. However, Mr Collie said that the boundary line had been marked in the same position each week and he could not see how such an accident would have occurred.

36 The final witness was Mr Damian Carr, an employee of the Council, who is currently engaged as its Parks Management Officer. He had held that position for 10 or 12 years. He said that it was not part of his responsibility to inspect the ground at the beginning, middle and completion of the season. He identified a document relating to the ground inspection to be undertaken on behalf of the Council. He believed that that document had been created by the City of Geelong in the early 2000s because of drought conditions. That document was adopted by the Council from approximately 2002. It recorded inspections of the reserve by the Council in March, April, May and June 2009. The form contained an item 'Check and measure boundary markings to compliance with Association regulations/guidelines - random check'. However, Mr Carr said that he understood that the Council held the view that it was not its responsibility to check boundary lines and fences on any of those ground inspections. That item was subsequently removed from the form in 2010.

37 In cross-examination on behalf of the plaintiff, Mr Carr agreed that, at the start of each football season, the Council could have checked the distance between the boundary line and the fence on all of the football grounds under its responsibility. He agreed that the checks, of the boundary line, referred to in the Geelong document, were not carried out. Mr Carr agreed it would be dangerous to have a boundary line too close to the fence, but at no time was he asked on behalf of the Council to measure the distance between the boundary line and the fence.

38 In cross-examination on behalf of the Council, Mr Carr stated that his department was responsible for overseeing the Banksia Reserve. The Geelong document was completed each month and was used to produce a rating for the various grounds. He said that there was no 'score' in the Geelong document relating to boundary markings, signage fences or light towers, because they were not relevant to the purposes of the Council. The Council had the control, management or ownership of 42 sports grounds, and ground users were required to do their own line marking. If the Council took over that job, there would be an initial cost of $40,000 and an ongoing cost of approximately $150,000 each year.

39 Mr Carr stated that he did not play any role in ground allocations in 2009. He believed that that was the role of Mr Wright Patterson at the time. Mr Carr said that he would visit the Banksia Reserve once or twice per month and walk the ground during those visits. However, during the football season he would not have focussed on the position of the boundary line at that time.

40 The judge commenced by noting that the plaintiff's case in essence was that the boundary line had been marked too close to the fence and therefore was a cause, and probably the major cause, of injury to the plaintiff.[2] The judge noted that Mr Collins had marked the boundary lines in 2009, and that Mr Collie had the same task at another ground used by the junior club. His Honour found both Mr Collins and Mr Collie to be good witnesses who impressed him as attempting to give an honest and accurate version of what had occurred in 2009.[3]

41 The judge noted that the plaintiff's evidence in relation to the boundary line was quite vague, and not of itself probative of any fault on behalf of any of the defendants.[4] His Honour also noted the evidence given by the plaintiff that he did not know where the boundary line was in relation to where he was when he attempted to take the mark. On the basis of that evidence, the judge observed that it would be 'purely a matter of speculation' to make findings in relation to the distance between the marked boundary line and the fence at the position at which the plaintiff sustained his injury.[5]

42 In relation to the circumstances in which the accident occurred, the judge found Mr Ecclestone and Mr Rayner to be impressive witnesses.[6]

43 The judge then proceeded to summarise, in detail, the evidence of the witnesses to whom we have referred.[7]

44 Having summarised the competing submissions of the parties, the judge then addressed the question whether the plaintiff had established a breach of duty by the defendants. His Honour commenced by stating:

A simplistic approach in this case would be to adopt the principal submission made on behalf of the plaintiff that the fact of the incident occurring is of itself proof that the boundary line was too close to the fence and thus evidence of a breach of duty. This would be incorrect in law.[8]

45 The judge then noted that there was no oral evidence adduced on behalf of the plaintiff that would enable him to conclude that, at the time of the incident, the boundary line had been placed at less than the minimum specified distance of 3 metres. In addition, his Honour considered that the absence of any complaint to the Club representatives, and the absence of any evidence called by other participants, did not assist in reaching any conclusion in favour of the plaintiff on that point. The judge noted that the evidence called on behalf of the defendants (from Mr Collins in particular) was strongly supportive of a finding that the boundary line was well in excess of 3 metres from the fence.[9]

46 The judge nevertheless considered that there was sufficient evidence which enabled him to reach a positive conclusion that the likely distance between the marked boundary line and the fence at the time of the incident was less than the prescribed 3 metres. His Honour referred to the aerial photograph, which he considered enabled him to make observation as to the relative distance of the boundary line in the area of the goals and the boundary line in the area of the southern pockets of the ground relative to the fence as in 2010.

47 The judge noted the evidence that the Council had measured the distance between the goal or point post, and the boundary fence, as 5.1 metres. His Honour noted that that distance could be measured on the photograph at 9.5 millimetres. His Honour observed that the photograph, taken in 2010, revealed a lesser distance between the boundary line and the fence at or near the cricket practice wicket area, which he had measured at 7 millimetres. He noted that further west, on the 2010 aerial photograph, the distance between the boundary line and the fence between the half forward flank and the wing narrowed to 5 millimetres as measured on the photograph.

48 The judge then used, as a 'scale', his measurement of 9.5 millimetres, of the distance between the goal post and the fence on the photograph, as representing the actual measured distance of 5.1 metres. Using that scale, the judge then calculated that a 'measured distance' of 7 millimetres (from the boundary line to the fence as measured in the photograph) near the cricket practice area would indicate a distance at that point of just over 3.75 metres.[10] The judge noted that the narrowest point, observed on the photograph on the west side of the ground, was measurable at 5 millimetres, which (according to the same scale) meant that the distance between the fence and the boundary line at that point was 2.68 metres.[11]

49 The judge then noted that in the 2009 season the goals would have been aligned one goal width further to the west than depicted in the 2010 photograph. The photograph showed that the boundary line in the south eastern quadrant of the ground varied in its measurable distance between 4.5 millimetres at its narrowest point to 8 millimetres between the wing and the half forward flank, where there had been newly installed drainage grates. The judge then concluded at that point:

The distance measurable on the south-eastern quadrant of the oval at a point opposite the cricket practice net area in the south-western quadrant shows the boundary line to be a distance of 5 millimetres, measured from the fence. This makes the marked boundary line was slightly less than 2. 7 metres from the fence.

On the basis of the observations that can be made from the exhibit, I am able to conclude that in 2010 the boundary line was at certain points of the ground a lesser distance than 3 metres from the fence. This is not probative of the actual location of the boundary line relative to the fence in 2009. It does however cast doubt on the accuracy, and indeed the reliability of Mr Collins' evidence as to the manner in which he did mark the boundary line.[12]

50 The judge then noted that the goal posts, in 2009, were located further to the west by a distance of 6.5 metres than depicted in the photograph. Assuming that the boundary line was marked in the same manner as it had been done by Mr Collins in previous years, it was likely (his Honour considered) that the boundary line on the western side of the ground would have been closer to the fence than depicted in the 2010 photograph. His Honour was satisfied, as a matter of probability, that the distance between the fence and the boundary line would have been that depicted at the point directly opposite the cricket practice area at the south eastern end of the ground in the photograph, which his Honour had measured at 5 millimetres, and which equated to 2.68 metres. If the distance between the goal posts and the fence was in fact 4.8 metres (as measured by Mr Collins), then (his Honour calculated) the distance between the boundary line and the fence at the point at which the accident occurred would have been 2.52 metres.[13]

I am therefore satisfied on the balance of probabilities that the distance between the marked boundary line and the fence with which the plaintiff came into collision was at the time of the incident a distance significantly less than the mandated league minimum of 3 metres.

I am fortified in my conclusion as to the likely circumstances of the incident by evidence of Mr Morley, Mr Eccleston, and Mr Rayner, and reach the following conclusions:
- The plaintiff was probably attempting to mark a football kicked into the south-west forward pocket area, which was more likely than not in the field of play at the time the plaintiff attempted to mark.
- The absence of any evidence concerning an umpire's whistle or call that the ball was out of play or out of bounds reinforces my conclusion as to the accuracy of the evidence given by the lay witnesses mentioned above.
- The collision with the fence occurred during the attempt by the plaintiff to mark the football, and was not as a matter of probability occasioned by him being bumped or pushed by another player. (Again, the absence of any evidence concerning complaints or protest as to another player's conduct is supportive of my conclusion.)
- The fact that the plaintiff, in the course of attempting to mark, landed on the fence, is strongly suggestive of an inadequate distance between the boundary line and the surrounding fence at the point where the incident occurred. This is supported by my own calculations of distance, based upon my examination of the 'Near Map' photograph.
I am therefore satisfied that a breach of duty by one or all of the defendants was a cause of the plaintiff's injury.[14]

52 The judge then stated that he was generally impressed by the evidence given by Mr Collins, but that his evidence, that he would mark the boundary line 4.5 metres from the fence, did not accord with the judge's 'own calculations based on all the evidence, and in particular my scaled observation of the likely 2009 position of the boundary line as shown on the 'Near Map' photograph.'[15] On the basis of his factual finding, the judge found that the Club and the League must bear significant responsibility for the lack of sufficient distance between the boundary line and the fence which was a cause of the injury to the plaintiff.[16]

53 The judge then noted the submission made on behalf of the Council that it had delegated to the Club and the League the duty of care owed to the plaintiff by the Council. The judge accepted that the duty of care, owed by the Council, could be delegated. His Honour concluded:

Notwithstanding this proposition, which I accept, the City of Bayside had adopted a risk-management plan but had taken no positive steps to enforce it. Coupled with its modification of the Geelong protocol to remove any reference to checking the boundary markings, in my view this indicates an abrogation of its duty of care rather than a delegation. The third defendant [the Council] has also significantly contributed to the plaintiff's injuries.[17]

54 The judge regarded the Club and the League as being 'the more' direct contributors to the accident involving the plaintiff, but considered that the Council had abrogated the management tools which it could easily have put in place, so that its role in the incident was not minimal. Accordingly, his Honour apportioned liability 60 per cent as against the Club and the League, and 40 per cent against the Council.[18]

55 His Honour rejected any submission made on behalf of the defendants that there had been contributory negligence on behalf of the plaintiff.[19]

56 In their application for leave to appeal, the Club and the League rely on four proposed grounds of appeal, namely:

The learned trial judge erred in his analysis of the photograph by developing his scale from an incorrect measurement, failing to take account of margins of error, and ultimately using the distance measured at a point other than where the accident happened.
Alternatively, the learned trial judge erred by conducting measurements and calculations from the photograph in the absence of expert evidence.
The applicants were denied procedural fairness because the measurements and calculations were performed by his Honour in chambers and without giving prior notice to the applicants of those measurements and calculations, and in circumstances where no measurements or calculations were attempted by counsel for the first respondent or put to any witnesses.
The learned trial judge erred in finding for the first respondent when the evidence did not establish that the first respondent would not have suffered his injury if the boundary line had been marked at three metres from the fence instead of either 2.68 or 2.52 metres, and without addressing this issue.

57 At the hearing of the application for leave to appeal, the Council relied on two proposed grounds of appeal contained in its notice of application for leave to appeal, namely:

The primary judge erred in finding that observations made during the view were of little assistance in determining the issues in the case (Reasons, [18]).

2. The primary judge erred in finding that -

(a) by applying a scale calculated by reference to measurements apparently made upon an enlarged aerial 'nearmap' photograph taken in 2010, the distance between the boundary line and fence at the point at which the incident occurred at Banksia Reserve in 2009 was either 2.52 or 2.68 metres and thus 'significantly less than the mandated league minimum of 3 metres' (Reasons [146]-[148]);

(b) such conclusion was fortified by the evidence of Morley, Eccleston and Rayner (Reasons [150]); and

(c) consequently, a breach of duty by the defendants was a cause of the first respondent's injury (Reasons [151]).

...

The applicant also relies upon the further or alternative proposed grounds of appeal advanced by the second and third respondents in their separate application for leave to appeal (and written case). The applicant's written case adopts those further or alternative grounds and arguments and advances no separate written argument in respect to them.

58 In response to the grounds relied on by the Club and the League, and by the Council, Mr Hart, as respondent to each appeal, relies on a notice of contention, the grounds of which are as follows:

It is to be inferred from the following primary facts found by the trial judge that the boundary line was too close to the fence (and, therefore, that a breach of duty by one or all of the defendants was a cause of the plaintiffs injury):

(a) the plaintiff was attempting to mark a football kicked into the south-west forward pocket area, which was in the field of play at the time the first respondent attempted to mark;

(b) there was no evidence the plaintiff had crossed the boundary line when he leapt to mark the ball;

(c) the plaintiff's collision with the fence was not the result of a push or bump from another player; and

(d) the fact that the first respondent landed on the fence in the course of attempting a mark.

Further or alternatively, it is to be inferred from the following facts that the boundary line was too close to the fence (and, therefore, that a breach of duty by one or all of the defendants was a cause of the plaintiff's injury):

(a) the facts referred to in (a) to (d) above;

(b) the ground was very large, and yet the person who marked the boundary lines in 2009 (Mr Collins) adopted an approach of marking the boundary according to what he understood to be a requirement of three metres between boundary line and fence;

(c) when marking the boundary line, Mr Collins would mark a straight line out from the point post until he hit the 4.5 metre mark (from the fence), at which point he would start the arc of the boundary line;

(d) although Mr Collins said at T505.21 that near the point post he measured from the fence out to 4.5 metres, the evidence does not disclose the means by which that measurement was made;

(e) apart from the above, Mr Collins did not measure the distance between the boundary line and the fence, or put any other mark down, but relied on his eye;

(f) the first time Mr Collins measured the distance between the fence and the position of a point post was some weeks before the trial, which he measured at 4.8 metres;

(g) Mr Collins took into account the risks posed by grates in marking the boundary (by keeping the boundary line 'well away from them') but he gave no evidence of any adjustments in his boundary marking to take into account the risks posed by a boundary line being too close to the fence;

(h) although Ms McNally signed a ground report certifying the boundary at 3 metres from the fencing at all points, there was no evidence that she actually ever measured the distance of the boundary line from the fence, and specifically at or about the point where the first respondent was injured;

(i) there was no evidence that anyone from the League came and examined the ground, meaning the marking of the boundary wasn't double-checked or otherwise subject to scrutiny by the League;

(j) while the Council inspected the ground multiple times in 2009, the inspection did not include the boundary line or fences;

(k) in 2009, the president of the junior club, Mr Collie, was not aware of the Council's Risk Management Policy, and the Council officer responsible for overseeing the football ground, Mr Carr, was not familiar with the Policy; and

(l) the Council did not have a parks management procedure or policy which would protect users of a football ground from a boundary line too close to a fence.

59 In support of ground 1 of their application, the Club and the League advanced a number of propositions in favour of the contention that the judge erred in his analysis of the aerial photograph in the manner contended in ground 1, which, in the upshot, have not been contested by Mr Hart. Stated briefly, the submissions are as follows. First, on the trial judge's scale, each millimetre on the photograph represented 53.7 centimetres (or over half a metre) on the ground surface. The judge's conclusion that the boundary line was either 2.52 metres or 2.68 metres from the fence meant that the deficiency of that distance from the prescribed standard (3 metres) was measured on the photograph by less than 1 millimetre. Such a precision was not possible given the scale of the photograph, and, further, given the difficulty in determining from the photograph precisely where the fence is.

60 Secondly, it was submitted that the judge used the wrong measurement as a commencement point. The judge treated the distance from the west goal post to the fence as 5.1 metres; however, that distance had been measured at the view from the location where the left behind post was in 2009, and not the location of the left goal post in 2010. That error caused the judge to utilise a scale that resulted in erroneous underestimates of the distance of the boundary line from the fence. If the error is corrected, and if a margin of error of plus or minus .5 millimetres were used, the judge's calculation of the distance from the fence to the boundary line at the cricket nets would have resulted in a conclusion that there was between 4.37 and 5.83 metres between the two points. In addition, having referred to the fact that, in 2009, the goal and behind posts were to the left of the positions depicted in the aerial photograph, the judge, without justification, assumed that all the line markings would be to the left of those depicted in the photographs. However, Mr Collins in his evidence stated that he varied the straight line distance that ran from the behind post to ensure that he maintained the same distance from the fence. Finally, the judge incorrectly used a measurement of 5 millimetres (rather than 7 millimetres) as the measurement of the distance between the boundary line and the fence line, depicted on the aerial photograph. If the measurement of 7 millimetres were utilised, that would have produced a distance between the fence and the boundary line of 3.75 metres, which exceeded the minimum requirement of the VAFA.

61 In support of ground 2, it was submitted on behalf of the Club and the League that the photograph had not been taken directly from above the ground. There was no expert evidence as to the extent to which the angle would have produced a distortion in a measurement of distances on the aerial photograph. It was submitted that the distance between the boundary line and the fence was not clearly revealed from the face of the photograph, and thus the use by the judge of the photograph extended beyond matters of common experience and into matters which required appropriate expert evidence.

62 In support of ground 3, it was submitted on behalf of the Club and the League that counsel for Mr Hart never explored possible measurements and calculations from the photograph when he presented the case on behalf of Mr Hart. Accordingly, the applicants did not have the opportunity to comment on their accuracy or appropriateness, and in that respect they had been denied procedural fairness. In addition, it was submitted that a case based on measurements and calculations taken from the aerial photograph was not put to Mr Collins in cross-examination, apart from some general questions asked by the judge, so that there had been a breach of rule in Browne v Dunn.[20]

63 In support of ground 4, it was submitted that, on the judge's findings, the distance between the boundary line and the fence, at the point of the incident, was at most 30 centimetres less than the recommended distance. At the time that he leapt to take the mark, Mr Hart was looking at the ball and did not see the boundary line, and was unaware where it was. It was submitted that the judge did not address the question whether Mr Hart would have suffered injury, if the boundary line had been marked at the recommended distance from the fence. It was further submitted that, in the circumstances, common sense would dictate that that would have not made any difference.

64 In support of ground 1 of the proposed grounds of appeal by the Council, it was pointed out that the view, which took place early in the trial, was digitally recorded and the recording had been tendered in evidence. At the view measurements were taken, including that the distance from the boundary fence to the western-most behind post sleeve was 5.1 metres, and the distance from the fence to the next goal post sleeve, to the east, was 5.77 metres. If the judge had taken those measurements into account, it would have revealed the unreliability of the method adopted by the judge of taking measurements from the aerial photograph.

65 The Council made submissions similar to those of the Club and the League in support of ground 2 of its application. First, it was submitted that the judge erred by relying on evidence by Mr Collins that the distance between the western-most behind post sleeve and the boundary fence was roughly 4.8 metres, when the best evidence, obtained at the view, was 5.1 metres. Secondly, the judge relied on a scale, by correlating a distance of 5.1 metres from the behind post to the fence to a measurement of that distance of 9.5 millimetres on the photograph. However, the judge did not test that scale by comparing the known distance between the goal posts, and between the goal posts and the behind posts, of 6.5 metres, with the measurement of that distance on the photograph. The scale to be derived from that latter measurement was .7222 metres per millimetre, which, if applied to the judge's measurement of 5 millimetres of the distance between the boundary line and the fence at the point of the accident, would have produced a distance on the ground of 3.6 metres.

66 The Council then referred to the evidence of Mr Collins, that he had utilised a measurement of 4.5 metres between the boundary line and the fence line, and that he had done so by spraying a mark on the ground as a precise measurement of that distance. It was submitted that the judge failed to take into account Mr Collins's evidence, as to that measurement, in his analysis of the distances as measured on the photograph. Rather, the judge rejected Mr Collins's evidence, by specific reference to the judge's own calculations from the photograph. It was submitted, further, that the judge's unreliable method, of measuring the distances from the photograph, was not a proper foundation for displacing the evidence of Mr Collins, Mr Collie and Ms McNally, as supported by the contemporaneous VAFA ground inspection report signed by Ms McNally.

67 In addition, it was submitted on behalf of the Council that the judge's measurements could not be 'fortified' by the evidence of the witnesses Mr Morley, Mr Ecclestone and Mr Rayner, as the judge had earlier stated that that evidence would not enable him to conclude that, at the time of the accident, the boundary line had been placed at a distance less than the required minimum of 3 metres from the fence. In addition, the evidence of those witnesses, that Mr Hart was more likely to have been in the field of play when attempting to mark, did not assist in determining the distance between the boundary line and the fence at that point.

68 In response, Mr Hart took issue with grounds 2 and 3 of the proposed grounds of the Club and the League. He submitted that, in the circumstances, the applicants were not denied procedural fairness. The applicants did not object when the jury were provided with rulers and dividers. The judge raised the prospect of measurement using a ruler in the course of cross-examination of Mr Collins, and, at a number of stages in the trial, he made it clear that he was considering evaluating the aerial photograph by making measurements of his own. No objection was taken to that course by the applicants.

69 In response to ground 1 of the proposed grounds of the Club and the League, and grounds 1 and 2 of the proposed grounds of the Council, it was accepted, on behalf of Mr Hart, that the analysis undertaken by the judge by reference to the aerial photograph (which is the subject of paragraphs [138] to [148] of the judgment) was not a 'reliable basis' upon which to make findings about the precise distance between the boundary line and the fence at the point at which Mr Hart sustained the injury. However, it was submitted that the reliance by the judge on those measurements did not give rise to a vitiating error in the judge's reasons.

70 It was pointed out on behalf of Mr Hart that the case put on his behalf was a circumstantial case, as outlined to the jury in counsel's opening. In particular, it was put on behalf of Mr Hart that if a footballer were to attempt to mark the ball and land on the fence, then it followed that the boundary line was too close to the fence. That circumstantial case was well supported by the evidence, and by the matters specified by the judge in paragraph [150] of his reasons.[21] It was submitted that the measurement, made by the judge by using the aerial photograph, was not a necessary step in his Honour's reasoning that the defendants had breached their duty of care to the plaintiff which was a cause of the plaintiff's injury.

71 In particular, it was submitted that the judge's conclusion was supported by two factual findings independent of those measurements. The first finding was that Mr Hart was probably in the field of play at the time at which he attempted to mark the football.[22] The second finding was that, as a matter of probability, Mr Hart did not collide with the fence as a result of being bumped or pushed by another player. It was submitted that those two factual findings were an appropriate foundation for an inference, on the balance of probabilities, that the distance between the boundary line and the fence was inadequate at the point at which the accident occurred. That inference was supported by the concessions made by Mr Collins and Mr Collie, in cross-examination, that if a footballer leapt for a mark while inside the field of play, and landed on the fence, it could be accepted that the boundary line was therefore too close to the fence.

72 In support of the notice of contention, counsel for Mr Hart relied on the following additional propositions. Mr Collins did not state how he measured the distance from the fence to the boundary line at 4.5 metres, at the point at which he made the mark. Further, he did not otherwise measure the distance between the boundary line and the fence, but relied on his eye to assess that distance. Mr Collins did not measure the distance between the fence and the point post until a few weeks before the trial. By marking the boundary line using a straight line, rather than following the arc of the fence, for some distance from the point post, Mr Collins thereby reduced the distance between the boundary line and the fence. At the time he marked the boundary, he took into account the risks posed by the grates in marking the boundary on the eastern side of the ground, but he gave no evidence of any adjustments in his boundary marking to take into account the risks posed by the boundary line being too close to the fence. In that respect, the point at which Mr Hart's accident occurred was adjacent to some rigid steel gates, which posed an additional hazard to a footballer if he were to collide with the fence at that point. Further, although Ms McNally signed a ground report certifying the boundary at 3 metres from the fencing at all points, there was no evidence that she had measured the distance of the boundary line from the fence, and in particular at the point at which the plaintiff was injured.

73 In addition, there was no evidence that any representative of the League inspected the ground. Although the Council inspected the ground on a number of occasions in 2009, its inspection did not include an examination of the distance between the boundary line and the fence. The Club, the League and the Council did not check or supervise the work undertaken by Mr Collins. Accordingly, no adequate steps were undertaken to ensure that the boundary marking was done in a manner that reduced the risk of injury of the kind suffered by Mr Hart.

74 It was further submitted that the fact that no complaint had been made to the Club, or to the Council, concerning the position of the boundary line at the ground, did not assist the defendants in the case. First, in each year, the position of the goal posts at each end of the ground differed. Secondly, the case made on behalf of Mr Hart did not depend on proof that the boundary line was too close to the fence at all points on the ground, but, rather, that the distance between them was insufficient at the point at which Mr Hart's accident occurred.

75 In response, it was submitted on behalf of the Club and the League that the judge had specifically rejected the argument that the fact that the accident occurred was, of itself, sufficient evidence that the boundary line was too close to the fence, and thus evidence of a breach of duty of care. The fact that a fit, young footballer, running at top speed, collided with the fence as he attempted to mark the ball, is not evidence sufficient to ground an inference of negligence against the occupier of the ground. Indeed, the fact that no such incident had occurred previously or subsequently, and that no complaints had been made about the marking of the line, further militated against such an inference.

76 Further, it was pointed out that none of the persons who witnessed the accident - Messrs Ecclestone, Rayner or Morley - suggested that, at the point of the accident, the boundary line was too close to the fence. Mr Collins was definite in his evidence that he marked the line 4.5 metres from the fence, and thus, on his evidence, the line well exceeded the minimum requirement specified by the AFL standard. In his evidence, he said that he had been marking the ground since 2000, and in all those years it had never been suggested to him that he had marked the boundary line in a position that was less than the minimum distance required by the AFL standard. Mr Collins's evidence was supported by Ms McNally and Mr Collie. He specifically stated that he measured, from the fence, 4.5 metres, which was where he would start his contour line running parallel to the fence. In those circumstances, it was submitted that it was not open to the Court to infer, on the balance of probabilities, that the distance between the boundary line and the fence, at the point at which Mr Hart was injured, was less than that prescribed by the AFL guideline.

77 It was submitted that it was not put to Mr Collins that it was unreasonable for him to mark the boundary line at about 4.5 metres to the fence. Further, even if, with the wisdom of hindsight, the boundary line was too close to the fence, it could not be concluded from that that the Club and the League had acted negligently in their placement of the boundary line at approximately 4.5 metres from the fence. It was not unreasonable for the Club and the League to abide by the mandated requirements of the AFL. In addition, other considerations would need to be taken into account if the boundary line had been placed further from the fence. Such a placement would have reduced the playing area which itself could increase the risk of injury.

78 Finally, the Club and the League contend that the judge's finding, that the ball was in the field of play at the time Mr Hart attempted to mark it, was unsafe and unsupported by the evidence.

79 In response to the notice of contention, the Council adopted the submissions made on behalf of the Club and the League. It was noted that the judge had specifically found that there was no oral evidence, advanced on behalf of Mr Hart, that enabled him to conclude that at the time of the incident the boundary line had been placed less than 3 metres from the fence. Accordingly, it was submitted, the judge's conclusion depended upon the erroneous measurements taken by his Honour from the aerial photograph. It was thus submitted that the decision by the judge was vitiated by error and should be set aside.

80 It was further submitted that the judge's finding of liability against the Council (and against the Club and the League) depended upon his finding that the boundary line was drawn negligently too close to the fence, which itself depended upon a finding that the fence was less than 3 metres from the boundary line. None of the matters relied on in the notice of contention establish the distance between the fence and the boundary line. There was no evidence that Mr Hart could not jump a distance of 3 metres, and when he was asked if he could do so, he replied 'I don't know'.

81 Further, it was submitted by the Council that no occasion arises for the drawing of the inferences sought on behalf of Mr Hart. The direct evidence of Mr Collins was that the boundary line was marked 4.5 metres from the fence. The accuracy of his measurement of that distance was not challenged in cross-examination. His evidence was supported by Mr Collie and Ms McNally. The judge found Mr Collins and Mr Collie to have been good witnesses who impressed him. Their evidence and the evidence of Ms McNally was credible, and Mr Hart did not lead any evidence to the contrary. In those circumstances, it was submitted, there was no basis upon which an inference could be drawn that the boundary line was placed at a position that was too close to the fence. Mr Collins specifically stated that having painted a straight line from the behind post, he measured a distance of 4.5 metres between that line and the fence, at which point he commenced to follow the arc of the boundary line. Although Mr Collins did not specifically state how he measured the distance between the boundary line and the fence at the point at which he commenced to paint an arc, he did state, in his evidence, that he marked the '50 metre line' (which, in fact, was at 45 metres from a peg in the middle of the goal square) and the diamond in the centre of the ground by using a tape measure. Therefore, it was submitted, it should be inferred that he used that tape by which to measure the distance between the boundary line and the fence at the point at which he commenced to paint the boundary line in an arc.

Conclusion - Effect of trial judge's findings

82 As we have noted, it is accepted on behalf of Mr Hart that the method adopted by the judge, of assessing the distance of the boundary line from the fence at the point of the incident by taking measurements from the aerial photograph, was not a reliable basis upon which to make the findings about the distance between those two points on the ground. For the reasons advanced by the Club and the League, and by the Council, we agree that that concession has been appropriately made. The aerial photograph was certainly relevant to a determination of that key factual question. However, as outlined on behalf of each applicant, there were a number of flaws inherent in the methodology, adopted by the judge, by using it as a measure of the actual distance between the boundary line and the fence, at the point of the incident.

83 Further, contrary to the submissions made on behalf of Mr Hart, we consider that the reliance by the judge, on those measurements, necessarily did vitiate the process of reasoning by which the judge concluded that the boundary line had been marked at a distance that was less than the prescribed standard of 3 metres from the fence, and that it had been marked at a point that was insufficient to discharge the duty of care owed by the Club and the League, and the Council, to Mr Hart in respect of the marking of that line.

84 We have already summarised, in some detail, the judge's reasons. It is plain, from that summary, that the method adopted by the judge was central to his Honour's conclusion that the distance between the boundary line and the fence was inadequate. As we have noted, the judge stated that there was no oral evidence advanced on behalf of the plaintiff that would enable him to make that conclusion.[23] His Honour observed that the evidence called on behalf of the defendants (in particular, that of Mr Collins) was 'strongly supportive' of a finding that the boundary line was well in excess of 3 metres from the fence.[24] The judge then proceeded to state that 'nevertheless' there was evidence that enabled him to reach a positive conclusion as to the likely distance between the boundary line and the fence at the time of the incident.[25] The judge proceeded to set out, in some detail, the method by which he measured distances between the goal and point posts and the fence (5.1 metres), and used the scale, that he thereby derived, to calculate the distance between the boundary line and the fence at the point of the incident.[26] Having outlined those calculations, the judge stated:

I am therefore satisfied on the balance of probabilities that the distance between the marked boundary line and the fence with which the plaintiff came into collision was at the time of the incident a distance significantly less than the mandated League minimum of 3 metres.[27]

85 It is in that context that the judge then stated that he was 'fortified in my conclusion' by the evidence of Mr Morley, Mr Ecclestone and Mr Rayner. He said that that evidence enabled him to reach the conclusions, first, that Mr Hart was probably attempting to mark the ball while still in play, second, the fact that, in the course of attempting that mark, he landed on the fence, and third, that those facts were strongly suggestive that the distance between the boundary and the fence was inadequate.[28] However, it is clear, from the context of his Honour's Reasons, and from the language used by the judge in expressing his Reasons, that those matters confirmed the conclusion that he had already reached on the balance of probabilities, that conclusion being based on the measurements that he took from the aerial photograph.

86 In those circumstances, we accept the submission made on behalf of each of the applicants that the erroneous methodology, adopted by the judge, to measure the distance between the boundary line and the fence, did vitiate the conclusion reached by him. The question thus arises as to how this Court should dispose of the application for leave to appeal and the appeal.

87 As noted, by a notice of contention, Mr Hart seeks to sustain the conclusion by the judge based on the matters set out in that notice. It is of course well established that a respondent to an appeal is entitled, at the hearing of the appeal, to rely on any ground to support the decision of the court appealed against, even if the court had not adverted to that alternative basis for its decision at all.[29]

88 In the present case, Mr Hart seeks to support the judgment, in his favour, by contending that the judge ought to have reached a conclusion in his favour, on the balance of probabilities, as to the position of the boundary line, based on evidence on which the judge did not primarily rely. The approach taken by Mr Hart on this application has the effect that, provided it is appropriate to do so, this Court is to assess that question, based on the evidence called at the trial, and to form its own conclusion as to whether that evidence establishes, on the balance of the probabilities, that the boundary line was marked at a distance that was inadequate from the fence, such as to constitute a breach by the League and the Club, and the Council, of their duty of care to Mr Hart.

89 That approach, contended for on behalf of Mr Hart, is consistent with the role of the Court to determine the appeal by way of a rehearing, in accordance with the principles stated by the High Court in cases such as Fox v Percy[30] and Robinson Helicopter Company Inc v McDermott & Ors.[31] That course was not opposed on behalf of the Club and the League. However, senior counsel for the Council submitted that it would be inappropriate for the Court to proceed by way of a rehearing, because the case for Mr Hart depended upon a rejection by the Court of the evidence of Mr Collins, and also the evidence of Mr Collie and Ms McNally. In that respect, counsel referred to the proposition, stated by Hayne J in Waterways Authority v Fitzgibbon & Ors,[32] that, when this Court conducts a rehearing, it is not in a position to make an evaluation of the credibility of a witness.

90 In response to that submission, senior counsel for Mr Hart noted that the judge in this case had made all appropriate findings as to credibility in relation to the relevant witnesses. He further relied on the proposition stated by Deane J and Dawson J, in their joint judgment in Devries v Australian National Railways Commission:[33]

In a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge's observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the 'court cannot excuse itself from the task of weighing of conflicting evidence and drawing its own inferences and conclusions'.[34]

91 As we have noted, the judge found the relevant witnesses, and in particular, Mr Collins, to be impressive, and that they were each witnesses who endeavoured to give an honest and accurate version of what they recalled had occurred in 2009. In this application, the Court is bound by that finding in favour of the respondents. However, the resolution of the appeal does not depend upon issues of credibility, but, rather, on an assessment of the weight of the evidence relied on by each side, and a conclusion, from that assessment, as to whether the plaintiff has established, on the balance of probabilities, that there was not a safe distance between the boundary line and the fence. In conducting a rehearing, this Court, inevitably, does not have the advantages, enjoyed by the trial judge, of observing the witnesses, and, in particular, of listening to the evidence as it is adduced orally in the course of the trial. As a consequence, the Court must be conscious of those disadvantages and take them into account. However, as stated in Devries, that is not a reason for the Court to abdicate its responsibility to conduct such a rehearing if, in a case such as this, it is appropriate to do so.

92 At the trial, and on appeal, the defendants at trial (the Club, the League and the Council) accepted that they each owed to the plaintiff a general duty of care, as 'occupiers' of the reserve, prescribed by s 14B of the Wrongs Act 1958. As the municipality that had responsibility for the reserve, the Council, while strictly not the occupier of the reserve, owed a duty of care to users of the reserve, including Mr Hart, that was broadly analogous to that of an occupier of private land.[35] Under the arrangements between the Council and the Club, the latter had permission to occupy and use the reserve, and the documentation specifically stated that it did so as licensee, and not as tenant, of the reserve. In the circumstances of this case, it was appropriate for the judge, and for this Court, to proceed on the basis that the duty of care owed by each of the defendants to Mr Hart was relevantly equivalent to the duty prescribed by s 14B of the Wrongs Act.

93 As noted by the judge, there was no oral evidence, advanced on behalf of Mr Hart, that at the time of the incident the boundary line had been placed at a distance less than the minimum specified by the AFL, of 3 metres.[36] Thus at trial, and on appeal, the case advanced on behalf of Mr Hart was circumstantial, depending on inferences to be drawn from the evidence adduced at trial. The principles relating to the drawing of inferences in a civil case are well established.[37] They were recently summarised by this Court in Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd[38] in terms which are sufficient for the purposes of this case, namely:[39]

The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.

94 Thus, in order that the appeal succeed, it must be established on behalf of Mr Hart that the inference, sought to be drawn in his favour, from the facts established at trial, must have a greater degree of likelihood than the evidence relied on on behalf of the Club, the League and the Council, namely, that the boundary line was marked at a distance that was sufficiently safe from the fence.

95 In order to resolve the issues raised on this application, it is first necessary to identify, and define, the particular case that was relied on by Mr Hart in order to establish that each of the defendants, in the proceeding, had breached their duty of care to him.

96 In the particulars of negligence specified in the statement of claim, it was pleaded, on behalf of the plaintiff, that the defendants had breached their duty of care by permitting the boundary line 'to be too close' to the fence, and that the defendants had failed to ensure that the boundary line complied with the minimum distance specified under the AFL preferred facilities guidelines (namely, 3 metres). In further particulars provided in response to requests by each of the defendants, the plaintiff alleged that the defendants had failed to comply with those guidelines, and had failed to allow for a sufficient distance between the boundary line and the fence, because the boundary line was not at least 3 metres from the fence.

97 Mr Collins gave evidence that, in marking the boundary line at Banksia Reserve, he sought to comply with the VAFA minimum standard of 3 metres (as set out above, he stated that he sought to mark the line 4.5 metres from the fence). It was not put to Mr Collins that the minimum standard, specified by the VAFA, was inappropriate, or that he had been negligent in relying on that standard. Indeed, the particulars provided by the plaintiff in his statement of claim were to the contrary effect.

98 In those circumstances, it is clear that the case made on behalf of Mr Hart at trial, and on this application, was and is that the three defendants to the proceeding were negligent, in that they failed to ensure that the boundary line was marked at least 3 metres from the fence in compliance with the VAFA guidelines. Conversely, it was not put on behalf of the defendants, at trial, or on this application, that, if the distance between the boundary line was less than the prescribed minimum of 3 metres, nevertheless the defendants would have discharged their duty of care to Mr Hart.

99 The evidence revealed that the Banksia Reserve was an unusually large oval for a suburban football ground, and therefore there was ample scope for the boundary line to be marked at least 3 metres from the fence, without encroaching unduly on the amount of space available to those competing in a game of football played on the oval. As senior counsel for Mr Hart pointed out, the photograph, that was taken very shortly after Mr Hart was injured, reveals that the accident occurred close to a set of gates, that were fixed in the fence, and that allowed entrance from the ground to practice cricket wickets behind them. Those gates were rigid, and contained features which would have posed an additional risk of injury to a person coming into contact with the fence at that point. In those circumstances, it is clear that the question whether the Club and the League, and the Council, breached their duty of care to Mr Hart, depended upon Mr Hart establishing, on the balance of probabilities, that at the point at which the accident occurred, the boundary line had been marked less than 3 metres from the fence.

100 The resolution of that question involves an analysis of the competing possible conclusions that can be derived, on the one hand, from the case put on behalf of Mr Hart, and, on the other hand, from the case made on behalf of the Club and the League, and the Council.

101 There was no direct evidence as to any measurement taken of the distance between the boundary line and the fence, at the point at which the accident occurred, at the time of the accident or at a time approximate to it. In his evidence, Mr Collins did state that, as part of his usual practice, when he marked the boundary line at the ground, he would bring it out in a straight line from the behind post, and then would measure a distance out from the fence of 4.5 metres, where he would start his contour line. He did not state whether he used a particular form of precise measure in order to ascertain that that mark was correct. In other evidence, he stated that when he marked the '50 metre line' on the ground (which was in fact 45 metres from a peg in the centre of the goal square) and the diamond in the centre of the ground, he used a measuring tape. It might therefore be inferred that he used that tape measure when marking the distance of 4.5 metres from the boundary line to the fence. However, there was no evidence that Mr Collins adopted that practice when painting the line from each of the four behind posts on the ground, or whether he only made that mark when painting the line from one of those behind posts. In addition, there was no evidence as to how close, or distant, such a mark would have been from the point at which the accident occurred. Thus, the fact that Mr Collins made that mark, while clearly relevant, does not conclude the question as to whether the boundary line was at least 3 metres from the fence at the point at which the accident occurred.

102 In determining that question, it is convenient to commence with the case made on behalf of Mr Hart.

103 It was not in issue, and the judge accepted, that Mr Hart was injured when, having leapt to take a mark, he fell, on the full, on the fence, without landing on the ground in the meantime. That fact was well established by the evidence of Mr Hart, Mr Rayner and Mr Ecclestone, and was not put in issue at the trial.

104 The judge found, as a fact, that Mr Hart was probably within the field of play (and had not crossed the boundary line) when he commenced to leap to take the mark. In cross-examination, Mr Hart (understandably) was not able to say whether or not he had crossed the boundary line at that point. However, the evidence of both Mr Morley and Mr Rayner supported the conclusion by the judge to that effect. There was no suggestion that either of those witnesses were mistaken in that respect, or that they could not have a clear view of the point at which Mr Hart leapt to take the mark.

105 Further, the evidence clearly established that Mr Hart was not pushed, or in any way propelled or assisted in his flight, by the action of another player in the match. The evidence of Mr Hart, Mr Morley, Mr Ecclestone and Mr Rayner each supports that conclusion. Nor was there any suggestion in the evidence, or in cross-examination, that there was anything unusual about the manner in which Mr Hart leapt to take the mark. In particular, it was not suggested that the height or length of the jump was exceptional, or that, when he fell, he did so in a manner that was unusual. Rather, the evidence was that Mr Hart, who was then a 6' 3", 17 year old footballer, running at or near full pace, made an ordinary leap to take a mark before he crossed the boundary line, and that he fell on the full on the fence.

106 It is in that context that it is relevant that Mr Collins and Mr Collie, in their evidence, both accepted, in cross-examination, that an accident, of the kind sustained by Mr Hart, would not occur in an ordinary game of football if the boundary line was a sufficient distance from the fence. That evidence has already been referred to, but it is worth returning to. The following passage from the evidence of Mr Collins should be set out in full:

If the evidence be in this case from three people that this boy went for a mark inside the ground, a legal attempt at marking, and landed on the fence on the full, if you accept that for the minute, just for the purposes of my question only ... then that boundary line is too close, isn't it?---You would assume so, yes.

I'm asking you to assume something. His Honour will have to decide this, but if you assume that they're right when they say that he went for a mark inside the boundary line, he's not pushed or shoved and he lands on the fence on the full, it means that the boundary line is too close to the fence because it should not happen. Is that right?---You'll assume that, yes, yes.

It's a safe assumption because it just shouldn't happen. Is that right?---Correct.

107 At the conclusion of his cross-examination, Mr Collins agreed with the proposition put to him that a player should not be able to take a mark and land on the fence. Mr Collins had a long background in playing football, and in watching football, and also in watching football matches at the Banksia Reserve. He said that he had been watching matches at that ground since 1995, and, as already mentioned, he had marked the boundary line at the ground since 2000. He said that he had never seen a player hit the fence on the full (after flying for a mark).

108 Mr Collie gave similar evidence in answer to questions from the judge. Particularly, he said:

If two sensible witnesses, unchallenged, say, 'He flies for a mark. He's not pushed, he's not hit and he is within the field of play because the full-back is there ready to punch the ball away from him,' then the only conclusion is that on that occasion, he either had Nic Naitanui-like skills or the boundary line was too close to the fence. If I'm bound to accept that the only evidence before me is that he is within the field of play when he flies for a mark and it's said that he hits the fence on the fall and he's not pushed, then in those circumstances, one could only conclude the line was too close to the fence at that point on that day?---That's a fair conclusion but the boundary is marked in the same spot every week and - - -

You couldn't see how it could happen? - - - I couldn't see how it could happen.

109 In the course of that evidence, it was not put to either witness that, in the postulated circumstances of a player flying for a mark and landing on the fence, the boundary line must have been less than 3 metres from the fence. However, it is important to understand the context in which those questions were asked of the witnesses Mr Collins and Mr Collie. Mr Collins had stated in his evidence that, in marking the boundary line, he was aware of the prescribed minimum distance of the VAFA, and that he followed the VAFA 'rules' which stipulated that the boundary line had to be 3 metres from the fence line. As stated, the case was run in the context of the allegation by the plaintiff that the boundary line had been marked less than 3 metres from the fence line and thus at a distance that was unsafe and inadequate. It was in that context, that Mr Collins was asked the question, set out above, in which he accepted that it could be assumed that the boundary was 'too close to the fence.' Mr Collie gave evidence that he, in fact, believed that the minimum prescribed distance was 3.5 metres. The concession that he made, set out above, that it could be concluded from the circumstances of the case that the boundary line was 'too close' to the fence, was given in the context of Mr Collie's understanding of the prescribed minimum distance.

110 The applicants sought to place weight on the evidence of Mr Hart, in cross-examination, that he did not know if he would or could cover a distance of 3 metres if he leapt for a mark. However, it is understandable that Mr Hart would give such an answer. No doubt before the accident he never had occasion to make such a measurement. After his accident, his injury would have prevented him doing so. His uncertainty, in response to the questions put in cross-examination, does little to detract from the evidence of Mr Collins and Mr Collie, to which we have just referred.

111 The evidence, to which we have just referred, standing alone, would support a cogent inference to the effect that, at the point at which the accident occurred, the boundary line was less than the safe prescribed minimum distance of 3 metres. However, of course, that evidence did not stand alone. The evidence of Mr Collins was to the contrary effect. As stated, he gave evidence that he endeavoured to mark the boundary line at a distance of 4.5 metres from the fence, and that when he commenced to mark the arc of the boundary line, at a short distance from the behind post, he made a precise measurement at that point of 4.5 metres as the distance between the line and the fence. Mr Collins's evidence gained some support from the evidence of Mr Collie and Ms McNally. That evidence, combined, would support a conclusion to the contrary to that contended for on behalf of Mr Hart, namely, that the boundary line was marked in excess of the prescribed safe distance of 3 metres from the fence.

112 In those circumstances, the judge was, and this Court is, faced with competing possible conclusions from the evidence. The central question on this appeal is whether the evidence relied on on behalf of Mr Hart has the effect that, notwithstanding the testimony of Mr Collins, Ms McNally and Mr Collie, this Court should conclude, on the balance of probabilities, that at the point at which Mr Hart's accident occurred, the boundary line was less than the prescribed safe distance of 3 metres from the fence.

113 As noted, the judge specifically found that both Mr Collins and Mr Collie were good witnesses who impressed him as attempting to give an honest and accurate version of what had occurred in 2009.[40] Nevertheless, there are a number of matters which must be taken into account in determining whether Mr Collins's evidence, as supported by the evidence of Mr Collie and Ms McNally, has the effect that it should not be concluded, on the balance of probabilities, that at the point at which the accident occurred, the boundary line was less than the minimum prescribed distance of 3 metres from the fence.

114 The first relevant consideration is that Mr Collins stated that the line that he marked was a straight line leading out from the behind post, before he commenced the arc that was to run parallel with the fence. In that way, necessarily, the boundary line, at the point at which the straight line concluded, would have been closer to the fence than it was at the behind post.

115 The aerial photograph, taken in 2010, demonstrates that, at or about that point, in the south-eastern corner of the ground, there was a marked 'kink' in the boundary line which appears to have brought the boundary line closer to the fence line than at any other part of the ground. There are, of course, clear limitations in deriving any conclusions from that photograph. They include the question of the angle from which the photograph was taken, and, importantly, the fact that the photograph does not precisely depict where the boundary line was one year previously. Nevertheless, the observation to be made from the photograph does have some relevance. It adds some weight to the proposition that the distance between the boundary line and the fence was at its narrowest near the point at which the accident occurred. In 2009, the goal posts, and behind posts, were one goal post measurement (6.5 metres) each to the west of position depicted in the photograph taken in 2010. The position of the western most behind post is depicted by a dark mark on the photograph. With that placement of the goal and behind posts, the south-west forward pocket was 'at its tightest' in the ground.

116 Mr Collins stated that after bringing the line out in a straight line, he would measure the distance from the fence at 4.5 metres. We have already pointed to the limitations of that evidence, and in particular, the lack of any evidence as to whether that measurement was made at each of the four behind posts on the ground. Further, if Mr Collins did make that mark at the south-west corner of the ground, no measurement was taken, or other evidence was given, to indicate the distance from that mark to the approximate point at which the accident occurred, other than that they were both in the same forward pocket.

117 From the point at which he made that mark, Mr Collins otherwise relied on his line of sight, and not on a precise measurement. His measurements, and his marking of the line, were not checked by any other member of the Club or the League, or by any representative of the Council. Ms McNally did sign a document, before each game played at the oval, that the boundary line was marked 3 metres from the fence. However, that evidence provides little assistance in answering the question whether, at the point of the ground at which the accident occurred, the boundary line complied with that requirement. Ms McNally did not state that she measured the distance between the boundary line and the fence at any point on the ground, and, in particular, at about the point at which the accident occurred. Mr Collie did not take any measurement of the distance between the boundary line and the fence in 2009, and the only measurement that he performed was in 2016, when he endeavoured to assess the distance between the goal posts and the fence.

118 None of the matters, to which we have just referred, necessarily demonstrate that Mr Collins's evidence was incorrect when he stated that he painted the line more than 3 metres from the fence, and indeed 4.5 metres from the fence. However, each of those considerations are relevant to an assessment of the reliability of Mr Collins's evidence to that effect, and in particular to the task of the Court to weigh the competing possibilities relied on by each party, to determine which conclusion, contended for, is the more probable conclusion.

119 In that respect, the evidence given on behalf of the Club and the League, that no complaint was made to them concerning the position of the boundary line, in 2009 or otherwise, has some relevance, but it is of limited weight. There was no evidence as to whether the prescribed minimum distance between the fence and the line was a matter of common knowledge among football clubs and players, apart from the person who has the responsibility of marking the line. Further, and in any event, the question in this case is not whether the line was marked less than 3 metres from the fence at the ground, but, critically, whether the line was less than 3 metres from the fence at the point at which the accident occurred.

120 As we have stated, the cases relied on by Mr Hart on the one hand, and by the Club and the League, and the Council, on the other hand, give rise to competing possible conclusions on the evidence. The matters relied on by Mr Hart support the conclusion that the accident could not have happened if the boundary line had been painted at least 3 metres from the fence. On the other hand, the matters relied on behalf of the Council, and in particular the evidence of Mr Collins, support the conclusion that the boundary line was in fact painted a distance at least 3 metres from the fence, and indeed further than that. The critical question, then, is whether, based on the above analysis of the evidence, this Court should conclude that, in the circumstances of the case, it was probable that, at the point at which the accident occurred, the boundary line was marked less than the prescribed safe distance of 3 metres from the fence.

121 As we have just indicated, while Mr Collins's evidence was found by the judge to be honest and credible, nevertheless there were limitations in it, that we have set out. As opposed to Mr Collins's evidence, and the supporting evidence of Mr Collie and Ms McNally, is the evidence that Mr Hart leapt for the mark while within the field of play, and fell on the fence, without anything unusual or untoward occurring which would have propelled him in that direction or caused him to fall on the fence. On the contrary, the accident occurred in circumstances in which a young, albeit tall and athletic, suburban footballer performed an action that is by no means unusual, namely, flying for a mark near the boundary line, yet somehow he landed on the full on the fence.

122 In that context, the concessions made by Mr Collins and Mr Collie, that such an accident would not occur unless the fence was too close to the boundary line, carry significant weight, and are readily supported by common sense. It could be expected that the minimum specified requirement, of 3 metres, set by the AFL, was determined by reference to an understanding of the circumstances in which a match of Australian Rules football is ordinarily played. Those circumstances include a whole host of incidents, including players being pushed forcefully towards the fence, running at full pace towards the boundary line, and (such as occurred in the present case) leaping for a mark while running at pace in the direction of and close to the boundary line. It could be expected that the safe distance of 3 metres was set in the understanding that, if the boundary line marked at a ground complied with that requirement, accidents such as occurred in this case should not, and indeed would not, occur. It is in light of such considerations that the concessions, properly made by Mr Collins and Mr Collie in cross-examination, and in answer to the question from the judge, are significant.

123 Ultimately, the critical question in the case is to be determined by reference to the probabilities. In our view, taking into account those considerations, the probable conclusion of fact, from the evidence, is that, at the point at which the accident occurred, the boundary line was marked at a distance that was less than the safe prescribed measurement of 3 metres from the fence. In those circumstances, and taking into account the manner in which the issues in the case were conducted, we are satisfied, on the balance of probabilities, that the Club and the League, and the Council, each failed to take reasonable care to ensure that the boundary line was marked less than the sufficiently safe distance of 3 metres from the fence.

124 We are also satisfied that the accident of Mr Hart occurred as a consequence of that negligence. The corollary of the evidence of Mr Collins and Mr Collie is that, if the line had been marked at the prescribed safe distance, the accident in all probability would not have occurred.

125 It follows that, on the evidence led at trial, and considered by this Court on rehearing the case, Mr Hart should succeed in his claim against each of the defendants to the proceeding. Accordingly, the applications for leave to appeal should be granted, but the appeals dismissed.

SOUTH METRO JUNIOR FOOTBALL LEAGUE Second Applicant

SOUTH METRO JUNIOR FOOTBALL LEAGUE Third Respondent

[1] Hart v Beaumaris Football Club & Ors [2016] VCC 232 [163] ('Reasons').

[21] See para [51] above.

[29] NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd [1947] NSWStRp 10; (1947) 47 SR (NSW) 273, 282 (Jordan CJ); David Syme & Co Ltd v Lloyd [1985] 1 NSWLR 416, 420 (Kirby P); Thompson v Johnson and Johnson Pty Ltd [1991] VicRp 84; [1991] 2 VR 449, 487-8, 495.

[35] Romeo v Conservation Commission (NT) (1998) 192 CLR 431, 487-8 [152] (Hayne J); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 449 [81] (Gummow J).

[37] See, Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5-6 (Dixon, Williams, Webb, Fullagar and Kitto JJ); Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 480-1 (Williams, Webb and Taylor JJ); Naxakis v Western General Hospital & Anor (1998) 197 CLR 269, 284-5 [45] (McHugh J); Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 129-30 (Winneke P), 141 (Tadgell JA); Marriner & Ors v Australian Super Developments Pty Ltd [2016] VSCA 141 [73]-[77] (Tate ACJ, Kyrou and Ferguson JJA).

[39] Ibid [101] (citations omitted) (Santamaria, Ferguson and Kaye JJA).

At a glance

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Judgment (158 paragraphs)

Cases Cited (9)