1 By an action, the respondent sued the Latrobe Council ("the council") as the first defendant, the Latrobe Football Club Inc ("LFC") as the second defendant, and East Devonport Football Club Inc ("EDFC") as the third defendant. He claimed damages arising out of serious injuries to his left ankle which were suffered when playing Australian rules football for the EDFC reserves team on 27 March 2004. The match was played against the LFC reserves team on the oval at the Latrobe Recreation Ground. The LFC was the home team for the purposes of the roster of the Northern Tasmanian Football League ("NTFL"). The council was the owner of the ground. The injuries were caused when the respondent's foot landed on the cover of an irrigation outlet that was set in the ground.
2 Following a trial as to liability only, it was found by a judge that all three defendants were liable in negligence for the respondent's injuries, that the council's share of responsibility was 85 per cent and that between them, the two clubs were responsible for the other 15 per cent, without distinguishing between them, there being no need to do so because they had the same insurer. The respondent recovered judgment against the defendants for damages to be assessed. It was ordered that the council contribute 85 per cent of the assessed damages, that the clubs contribute 15 per cent of the assessed damages and that the defendants pay the respondent's costs of the action in relation to liability.
3 All of the defendants appealed to this Court. In essence, they attacked the findings that they breached the duty of care they owed to the respondent.
4 Few of the facts remain in dispute. I will state the material ones in accordance with the findings of the learned trial judge.
5 On the evening of Thursday, 25 March 2004, the coach of the EDFC reserves requested the respondent to play against the LFC reserves on the following Saturday, 27 March. The team was short of players and the respondent agreed to do so. He was 36 years old and an experienced footballer. Between the ages of 17 and 32, he played senior football until he retired from playing because of work commitments. Thereafter, he only played in a couple of practice matches. He had maintained his general fitness by jogging, surfing and skateboarding, but did not regard himself as "footy fit" on the day of the game. However, the state of his fitness played no part in causing his injuries.
6 Pursuant to the Local Government Act 1993, s29, the council established the Latrobe Sport and Recreation Controlling Authority "to manage and administer the affairs of the Latrobe Recreation ground". For the purposes of the litigation, no distinction need be drawn between the controlling authority and the council.
7 The uses to which the ground was put had remained unchanged for many years. It was used for cricket in summer and football in winter. During the football season, it was used every second Saturday for the under 19s, the reserves and the seniors matches in the NTFL roster. It was also used for training four nights a week and for school football matches. Regarded as an excellent ground, it was often used for finals. It was also used for a sports carnival at Christmas time. A horticulturalist, Mr Tuthill, was responsible for the maintenance of the ground and, in particular, its playing surface.
8 On 1 July 2003, the council leased the buildings at the ground to the LFC for four years. The football oval was not part of the demised premises. However, the lease required the council to permit the LFC to use "the sporting facilities" and the council agreed to provide "all ground care and maintenance for the sports arenas and facilities as per service agreement". The lease made the council "solely responsible for the main area surfaces, carrying out all the broadleaf spraying, top dressing etc". Mr Tuthill, as team leader for the council's parks and reserves, and the groundsmen, were responsible for the upkeep of the ground.
9 The council imposed an obligation on the LFC, in common with other clubs and organisations that used the ground, to complete a "facility inspection sheet" at least 24 hours before the ground was used. The facility inspection sheet listed 76 matters that had to be checked. It provided a column "OK", a column "NA", and a column "Comments" to be completed with respect to each of the 76 matters. After completion, it was to be sent to the council.
10 The NTFL organised football matches in the north and north west of Tasmania. The roster was drawn up so that all clubs had the same number of home games. The Latrobe Recreation Ground was the home ground for the LFC. Girdlestone Park at East Devonport was the home ground for the EDFC. The NTFL expected the home club to ensure that the ground was properly marked out and in a safe condition. At the end of every match, a "match envelope" was dispatched to the manager of the NTFL. Into the envelope were placed the records of the match, the score, team sheets, umpires' voting lists and the like. Prior to the start of the 2004 football season, the NTFL made new insurance arrangements for all the teams playing in the league. As part of the arrangements, the clubs were required to comply with a national risk protection program, which required them to complete a written Match Day Checklist prior to the start of the first match of the day. It contained eight questions about the field of play that had to be answered by ticking a box for "yes" or "no". The Checklist had to be signed by a representative of each of the clubs playing at the venue that day and put in the match envelope. The day of the respondent's accident was the first upon which such a Checklist was required to be completed.
11 Witnesses who knew the Latrobe ground spoke highly of its playing surface and general condition. Each week it was mowed, usually on a Thursday or a Friday, ready for Saturday's game. The procedures for maintaining and caring for the ground had remained unchanged since well before 2004.
12 Five irrigation outlets were set into the surface of the oval. A large one was in the centre and the other four, which were smaller, and which were of about equal size to each other, were about 20 metres towards the wing from the forward/back pockets. Each of the four smaller outlets contained an irrigation tap at the bottom of a rectangular hole that had been cut into the playing surface. The hole measured about 200mm by 400mm and was about 350mm deep. At the bottom of the hole, around the tap, was a cement sheet box, which had no top or bottom. Around its upper edge was a ledge or lip, about 12mm high. The top of the box was closed off by placing a flat, thin metal lid over it, held in place by the ledge or lip. A hole in the middle of the lid allowed the insertion of a finger to facilitate its removal. On top of the lid was placed a piece of wood, about the same length and width as the lid and about 20mm thick. A thin layer of soil was placed on top of the piece of wood and finally, a wooden block, about 395mm long and 190mm wide, with a thickness of about 90mm, was placed on top. Three sides of the wooden block, including its uppermost surface, were covered by a 5mm thickness of a green carpet-like material that was referred to in evidence as Astroturf. The wooden block and its carpet were collectively referred to in evidence as the cover. Around the edges of the cover, soil was packed to prevent it moving laterally within the hole. Ideally, the top of the cover would sit flush with the soil of the playing surface, although lower than the top of the surrounding grass, which was mowed to a height of about 27mm in the football season, and about 17mm in the cricket season.
13 During the cricket season, the covers might be removed and the taps used to water the oval several times a week, possibly as many as 20, but in the football season the ground did not need to be watered, and there was no need to lift the covers at all. The 2003/2004 cricket season ended about three or four weeks before the first NTFL football matches on 27 March 2004. The cover, upon which the respondent fell, had not been lifted for about five or six weeks prior to that day.
14 A major issue at the trial was whether the cover, upon contact with which the respondent suffered his injuries, was flush with the surface of the surrounding soil or not and, if not, whether his injuries were caused as a result of his foot landing partly on the surrounding soil and partly on the cover at a lower level than the soil.
15 The accident occurred during the third quarter of the match. The respondent was in the right forward pocket, when viewed from the other end of the ground. The play was on the wing on his side of the ground. The ball was kicked in the air in his direction and he ran forward and to his left. When the ball was near him, he jumped with his hands raised to about, or just above, head height, in an endeavour to mark (catch) the ball. He failed to hold the mark and the ball fell to the ground. The learned judge found that as he came down onto the ground, his foot landed, at least partly, on the cover of the irrigation outlet, and he fell. He suffered serious fractures in his lower leg.
16 The most common of ankle injuries that come from rolling the ankle are known as inversion injuries. Most people have rolled their ankle in that way. The respondent's injuries resulted from an unusual eversion, a rolling of the ankle in the opposite direction to what is common, and they were caused because of the different heights of the surrounding soil and the top of the cover. An eversion injury to the ankle is an uncommon event. It can occur if the foot lands on even ground at a sufficiently acute angle and with a force strong enough to overcome the natural tendency of the ankle to invert. The angle of contact may dictate an eversion, rather than an inversion. But the ankle is unlikely to adopt a sufficiently acute angle to result in an eversion injury without a reason, which is likely to be either an unpredictable landing on an even surface due to an immediately preceding and unexpected event, such as a mid-air tackle or mid-air decision to change the direction of travel on landing, neither of which occurred here, or the pressure created by unexpectedly landing on an uneven surface. The latter was found to be the cause of the respondent's eversion injuries.
17 The cover was admitted into evidence as an exhibit. Notwithstanding the Astroturf on it, the upper surface was quite hard. If the top of the cover was set any distance below the level of the surrounding soil, there would be a height differential between two hard surfaces. The learned judge accepted the evidence of an orthopaedic surgeon, Professor Einoder, that such a differential need only be half a centimetre for an eversion injury resulting from landing on an unpredictable surface. There was conflicting evidence about the comparative heights of the two surfaces. Some of the conflict may have resulted from the grass above the surface of the soil obscuring vision of the soil. There was evidence in favour of the appellants that suggested that the top of the cover was level with the surface of the surrounding soil. Evidence most favourable to the respondent was that the cover was about one or two inches (2.5 - 5 centimetres) below the surrounding soil. The learned judge did not make a precise finding as to the height differential, other than that the top of the cover was at least half a centimetre below the surrounding soil. It is apparent that his Honour did not consider it necessary to go further than that, having regard to his acceptance of Professor Einoder's evidence. However, it appears likely that his Honour accepted the evidence of the respondent's brother, Darren Williams, that on the day after the accident, he inspected the scene, got down on his hands and knees, "got [his] head down as close as [sic] and had a look at the lay of the land" and saw that the cover appeared to be lower than the surrounding ground by about a centimetre or two. His Honour found that Darren Williams was a careful witness and the only one who made a careful examination of the relative levels of the top of the cover and the surrounding soil.
18 The learned judge found that it was more probable than not that the respondent suffered his injuries because his foot landed awkwardly, partly on the top of the cover, and partly on the surrounding soil, and that the height differential was sufficient to cause the injuries. None of the findings I have mentioned were attacked by a ground of the appeals.
19 Other findings not challenged were the following. As the cover had not been lifted for five or six weeks prior to the accident, and during that time the grass had been allowed to grow around it undisturbed, except for weekly, or almost weekly, mowing, the growth made it very difficult to discern whether the top of the cover was flush with the surrounding soil unless a very close inspection was made. It is obvious that because the bottom of the box sat on the soil at the bottom of the pit, a thin layer of soil was spread on top of the lid on the box, or on top of a piece of wood placed on top of the lid, the cover was then placed on top of the piece of wood or thin layer of soil, and soil was packed down around the sides of the cover, it would have been very difficult to position the lid, the thin layer of soil, the piece of wood and the cover, and reposition all those things each time they were removed to irrigate the ground, so that each time the top of the cover was exactly flush with the surrounding soil. Further, it would be very difficult to ensure that after each positioning and repositioning took place, the cover would remain in exactly the same place even if it was flush with the surrounding soil. Rain might well seep down the sides into the pit and alter the position and density of the soil in the bottom of the pit and/or move part of the layer of soil thinly spread on top of the piece of wood or lid. Further movement might occur if a period of warm weather followed a period of rain or if a tractor was driven over the cover and so on.
20 It was noted by the learned judge that when, in summer time, he viewed one of the covers, but not the one on which the respondent fell, its top was clearly a substantial distance below the level of the surrounding soil. What his Honour saw was part of the evidence. Evidence Act 2001, s54. Because over 2½ years had passed since the accident, the view had limited probative value, but it demonstrated that despite what may have been good intentions and efforts to maintain appropriate levels for covers, achievement of the ideal has not been possible at all times.
21 In accordance with the statement of principle of Mason J (as he then was) in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 44, the learned judge held that a duty of care was owed to the respondent by the appellants and that a reasonable council and a reasonable football club, in the positions of the appellants, would have foreseen that carelessness on their part might be likely to cause damage to the respondent. Concerning the content or standard of that duty of care, the learned judge adopted as the lodestar to guide judicial determination the often quoted passage from Mason J's judgment in Wyong Shire Council v Shirt at 47 - 48. His Honour then stated his finding as to foreseeability of risk: