Plaintiff v First Defendant

1. At cricket training on 15 February 2022, Jordan Woolnough was jumping over the boundary fence of a cricket oval at the Laurimar Recreation Reserve (the Reserve) in Doreen, to get to the adjacent cricket nets, when he caught his foot, lost his balance and fell to the ground. He landed on his head or neck and suffered serious injuries and will now spend the rest of his life in a wheelchair. He was only 23 years old and was a self-employed carpenter. He contends that both the Whittlesea City Council (the Council), which built the fence and later the cricket nets and owned and occupied the Reserve, and the Laurimar Cricket Club (the Club), who had the use of the oval and the nets and employed the coaches who were running the training session, were negligent and that their negligence was a cause of his injuries. The Council and the Club both deny they were negligent and contend that, if they were, the plaintiff voluntarily assumed the risk of injury, or at least was contributorily negligent, by jumping over the fence rather than using a gate. If liable, they claim contribution from each other under the joint tortfeasor provisions of the Wrongs Act 1958. The parties have agreed the plaintiff's damages, if successful, at $19 million.
2. The plaintiff's father, Mr Evan Woolnough, was a witness in the trial. To avoid confusion, I will refer to Mr Jordan Woolnough as the plaintiff, and to Mr Evan Woolnough as Mr Woolnough.

B The ovals and other infrastructure at the Reserve

1. There are two ovals at the Reserve. One is called the Western (or 'school') oval and the other is called the Eastern (or 'main') oval. The Eastern oval is adjacent to but slightly above, that is to the north-east of, the Western oval. Below is an overhead photograph of the two ovals, with markings added, that was tendered as an accurate representation of the two ovals at the time:

1. As is apparent from that photograph, the pavilion (that is, the club rooms) is nestled between both ovals at, speaking loosely, the north end of the Western oval and the west end of the Eastern oval. There is a set of cricket nets south of the pavilion outside and to the east of the Western oval and to the south-west of the Eastern oval. These are called the 'new nets'. The 'old nets' are to the south west of the Western oval adjacent to the gate marked as the 'Old nets gate'.
2. The boundary fence around the Eastern oval is of the type typically seen around community sporting ovals throughout Melbourne: it is just over a metre high and consists of a series of tubular metal poles supporting upper and lower horizontal tubular metal bars with wire mesh strung between them. No complaint is made about the condition or structure of the fence itself.
3. The new nets were installed, as best I can ascertain, in the first half of 2020. A diary record from a Club committee meeting held on 25 June 2020 records a 'council update' that the nets were 'on track for July 7th/10th'. They were certainly in use by October 2020. The budget for their installation was in the range of $200,000. During that season, the Club was using the Western oval for training because work was being performed on the Eastern oval, which was surrounded by high temporary fencing. On 29 October 2020, the then-president of the Club, the plaintiff's father, Mr Woolnough, emailed the Council stating:

As per our conversation,

we would like to have an access gate put in the west oval opposite the entrance to the new nets,

The other access point is around near the clubrooms.

1. The Council already planned to renovate the Western oval the following year. The 'West oval new gate' was added to those plans and installed in due course.
2. During the 2021-2022 cricket season, because the Western oval was being renovated and was unavailable, the Club used the Eastern oval for its trainings. The plaintiff's fall occurred during that season. He fell at the approximate location marked 'East oval new gate', while attempting to move from the interior of the Eastern oval, over the boundary fence, to the new nets. At the time of his fall, there was no gate at that location.
3. There is a factual dispute as to whether or not the Club had asked for a gate in the Eastern oval and whether, if it had, it had indicated that the lack of a gate was a safety issue. After the plaintiff's fall, the Council installed a gate at the approximate location of his fall at a cost of approximately $1,500. It also added a concrete pathway to that gate.
4. As the diagram indicates, there was also a 'Vehicle gate' between the new nets and the 'South pavilion gate'. This was, as the name indicates, a gate wide enough to allow vehicles to access the ground. I take judicial notice of the fact that such gates are installed in boundary fences to allow those responsible for the upkeep of the grounds to drive mowers or other machinery onto the playing surface and to allow emergency vehicles access to the playing surface in the case of an emergency. Unlike pedestrian access gates, they are usually, or at least are meant to be, kept locked to keep unauthorised vehicles off the playing surface. They are not installed to facilitate pedestrian access. There was evidence that on occasions these gates would be left unlocked, and that this was a problem, and also on one occasion that there was a delay in unlocking it when there was an emergency because no one could easily find the key. For the purposes of this proceeding, the presence of this gate, which was not installed to provide pedestrian access and was ordinarily locked or at least should have been locked, may be put to one side.
5. As the diagram indicates, there was also a gate, the 'South east gate', that could be reached by going east, or anti-clockwise, from the new nets. I attended a view with the parties. The layout of the area in front of the new nets where people would gather, and the existence of a large net to catch footballs between the boundary fence and the new nets at the location of the thin white structure shown on the photograph, are such that, when standing at the new nets, attention is naturally directed to the north, that is, towards the South pavilion gate or the location of the 'East oval new gate'. Consistently with my impression, and although there was evidence that some players entered or left the Eastern oval by using the South pavilion gate (rather than by jumping or climbing over the fence), there was no evidence that any players ever entered or left the Eastern oval by using the South east gate (rather than by jumping or climbing over the fence). The plaintiff said, and I accept, that he was not aware that there was a gate in that location, as did one of his coaches that day, Mr Rian Boddy.

1. The seniors trained on Tuesdays and Thursdays. They would ordinarily gather in front of, that is to the north of, the new nets. They would then do a warm-up on the oval. As noted, for the 2021-2022 cricket season they had use only of the Eastern oval and so the warmups took place on that oval. That meant that the squad had to move from the area in front of the new nets onto the Eastern oval. There were two principal ways in which that might be done. One way would be to walk north along the outside of the boundary fence to the South pavilion gate (the nearest of three gates servicing the pavilion). The other way would be to move to the boundary fence and climb or jump over it at the approximate location marked 'East oval new gate'. As noted, at the time of the plaintiff's accident there was no gate at that point. The walk to the South pavilion gate was approximately 95 metres long and the walk to the location marked 'East oval new gate' was approximately 41 metres long. These distances were measured from the entry point to the new nets - in practice, of course, people would have started from where they had gathered which was to the north of that entry point. The cricketers also moved onto or off the Eastern oval for the purpose of conducting 'centre-wicket' practice and fielding practice.
2. The great majority of the cricketers, and the estimates varied from 75% to 90%, simply jumped or climbed the fence at the most direct point rather than walk the extra distance to the South pavilion gate and it was only the older or injured players who in practice would do so.
3. The plaintiff's fall occurred as he was moving back to the nets after the warm-up.

D Did the Council breach a duty of care owed to the plaintiff?

1. The Council as occupier of the Reserve owed to persons, including the plaintiff, a duty to take such care as in all the circumstances of the case was reasonable to see that they would not be injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[1]
2. The plaintiff formulated the relevant risk of harm as 'the risk, arising from the practice, of injury as a result of falling while taking a path between the East oval and new nets that involved climbing or vaulting over the fence'. The plaintiff's claim against the Council is that when it built the 'new' cricket nets adjacent to the Eastern oval it should have installed an additional pedestrian gate in the fence at the point where people moving from the nets to the oval or from the oval to the nets would likely seek to cross the fence or, at least, it should have done so once the Club asked for a gate at that location or it otherwise became aware that most of the people moving between the nets and the oval were in practice climbing or jumping over the fence. The Council contended that there were sufficient pedestrian gates in the fence such that it was not unreasonable for it not to have installed an additional gate at or about the location where the plaintiff fell, and denied that any request was ever made for it to install an additional gate in the Eastern oval fence.
3. In determining whether the Council breached its duty as occupier, the 'circumstances of the case' to be considered include the gravity and likelihood of the probable injury, the circumstances of the plaintiff's entry, the nature of the premises, the knowledge that the Council has or ought to have of the likelihood of people being on the premises, the plaintiff's age, the plaintiff's ability to appreciate the danger, and the burden on the Council of eliminating the danger or protecting from the plaintiff the danger as compared to the risk of danger to the person.[2] Also, the Council may not be negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, was not insignificant, and a reasonable person in the circumstances would have taken those precautions.[3] 'The measure of careful behaviour is reasonableness, not elimination of risk'[4] and sometimes it is reasonable to do nothing in response to a risk of injury.[5] In deciding whether the Council, acting reasonably, would have taken precautions, the matters the Court must consider include the probability that harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity that creates the harm.[6] Hindsight must be avoided.[7]

D.1 Should a gate have been installed even in the absence of a request from the Club?

1. A fence around an oval is there at least in part to keep people behind it and off the playing surface. But people do need to get onto and off the playing surface. There was much evidence led that many people of all ages in different circumstances jump over boundary fences without anyone being concerned about this or appreciating a risk of injury. Examples were given of players jumping a fence to collect a football or cricket ball that had gone over the boundary, or kids in particular just jumping over them to play on the oval. This reflects the fact that for most reasonably fit people, climbing or jumping over a fence, on a single occasion, carries only a very small risk of injury. But even so, gates are put in fences around sporting fields. Here, three gates had been installed in the fence of the Eastern oval in front of the various ramps between the pavilion and the changing rooms, a gate had been installed in the fence of the Western oval in front of the old nets, a gate had been installed in the fence of the Western oval in front of the new nets, and gaps were left to either side of the coaches' boxes.
2. The purpose for installing gates (or gaps) at these locations is obvious: they are the locations at which many people will likely be seeking, for proper purposes, to enter or to exit the playing surface. No-one would expect, for example, footballers running onto the oval from the pavilion changerooms, or running from the oval to the pavilion changerooms, to have to jump over the fence each time. That is for convenience, but also for safety. Indeed, it is 'convenient' in part because it is easier and essentially risk-free.
3. Further, and although, as noted, for most reasonably fit people, climbing or jumping over a fence on a single occasion carries only a very small risk of injury, the risk of injury is much greater when these single occasions are aggregated, as would be the case if, for example, every member of every football team were to jump or climb over the fence before and after each game and training session over multiple seasons. It would clearly be unreasonable, having regard to the aggregate risk of injury coupled with the relative low cost of installing a pedestrian gate, and the expectation that footballers would otherwise jump or climb the fence at this location, for the facility owner in such circumstances not to provide a gate at a convenient location between the pavilion changerooms and the oval. In this analysis, it is not necessary to envisage a catastrophic injury like that suffered by the plaintiff; the risk of falls causing bruises or sprains or perhaps even a break would be sufficient.
4. The inappropriateness, and danger, of having large numbers of people repeatedly jumping a fence was acknowledged by some of the Council's witnesses. In particular:

(a) Jake Carroll, the Council's sport and leisure infrastructure coordinator, and at the relevant time its 'leisure new works coordinator', who acted as a conduit between the sport clubs and the 'delivery arms of Council', said that if he had been told that 30 to 40 people were going over the fence to and from the Eastern oval nearly every night, he would be 'concerned' by that and regard it as unsafe (albeit that he would see it as a 'club management issue');

(b) Trevor Croughan, who from December 2021 was the Council's coordinator of sport and recreation, agreed that it would be 'a little bit concerning', at least, if he had been told that dozens of people were jumping the fence of the Eastern oval and that the 'safe thing to do' would be to 'review' that; and

(c) Anthony Traill, who from December 2021 was a 'senior leader' who managed, among other things, the sport and recreation department or team, and supervised Mr Croughan, agreed that if athletes were jumping over a fence it was possible that someone might fall and be injured and that if thousands of athletes are doing it over several years the possibility becomes a probability (albeit that he would have worked with the Club to get it to change how it ran things rather than install a new gate).

1. The fact that the Council later installed the East oval new gate at the location of the plaintiff's fall may not be used as an admission of negligence on its part.[8] But it does establish that the installation of an additional gate was reasonably possible, and allows an inference that its installation was not precluded by some relevant countervailing disadvantage and was achievable at the relatively modest cost of approximately $1,500.
2. The cricketers were lawfully on the premises with the knowledge of the Council and not intoxicated or engaged in any illegal activity, the burden of taking precautions against the risk of injury was small, and there was no 'social utility' in the cricketers jumping the fence to travel between the Eastern oval and the new nets or having the relevant section of the fence without a gate.[9]
3. The strength of this part of the plaintiff's case against the Council thus reduces to whether the number and type of persons otherwise likely to seek to climb or jump the Eastern oval fence at the location next to the new cricket nets created an aggregate risk of injury such that the Council, acting reasonably, should have responded by installing a pedestrian gate at that location.
4. In addition to Mr Carroll, Mr Croughan and Mr Traill, the Council adduced evidence from Mr Callum Dean, Mr Ken Barton and Mr Phillip Zumbo, all of whom worked in its sport and recreation team. None of those persons said that they, or the Council generally, had in fact turned its mind to whether a pedestrian gate should have been installed in the fence to the Eastern oval near the new nets and made a considered decision not to do so. Their evidence was, instead, to the effect that no-one from the Club raised such a concern with them (or, at least, that they had no memory of anyone from the Club raising such a concern with them).
5. As I have said, much evidence was led in this case, mainly by the Club, that many people climbed over oval fences like the one to the Eastern oval to collect cricket balls or footballs or for some other reason, without suffering injury. I accept that it is commonplace in Victoria for many people playing cricket or playing football to climb or jump over the boundary fence to collect a ball that has gone under or over that fence. I accept that it is commonplace in Victoria for many people including children to jump or climb over fences to play on or otherwise to gain access to ovals. That is consistent with my own experience, and I would have been prepared to take judicial notice of those matters. That, however, does not mean that there should never be pedestrian gates in such fences. As noted above, it is necessary to separate the risk that any one person faces from attempting such a manoeuvre on one occasion, and the aggregate risk associated with many people attempting such manoeuvres on many occasions.
6. Further, and importantly, this evidence supports a conclusion that human nature is, and is known to be, such that most able-bodied people will not go an appreciable distance out of their way to use a pedestrian gate to get onto or off an oval rather than jump or climb over the fence; for most people, the risk of climbing or jumping the fence on any one particular occasion would not justify, in their minds, the inconvenience of walking more than a small distance to use a pedestrian gate. This aspect of human nature was reflected in the evidence given of how the cricketers themselves in fact moved from the new nets to the oval and from the oval to the new nets.
7. For this reason, I am satisfied that the Council was or should have been aware that this was the likely behaviour of most of the persons using the new nets and the Eastern oval for cricket training. The Council was not entitled to assume that all, or even most, users of the new nets would use the South pavilion, or any other, gate. That is, I am satisfied that the Council was or should have been aware that, in the absence of a new gate being installed, the great majority of those using the new nets for cricket training (or at games) would in practice climb or jump the fence in the approximate location where the plaintiff fell, rather than go out of their way to use the gate by the pavilion or some other gate.
8. Further, in determining the reasonable response of the Council, I consider the Council was obliged to 'take account of the possibility that one or more persons to whom the duty is owed might fail to take proper care for his or her own safety'.[10] Although the ability of a person to avoid a risk of injury is a relevant factor when it comes to assessing the reasonable response of another to that risk of injury, to the extent that the Council submitted that its duty could not as a matter of law ever extend to protecting entrants 'from their own negligence', I reject that submission. If that were the case, there could be no role for contributory negligence.[11] The Council relied on statements including by Brennan CJ in _Romeo v Conservation Commission of the Northern Territor_y that:

'The duty is to exercise reasonable care to prevent injury from dangers arising from the structure or condition of the premises which are not apparent and are not to be avoided by the exercise of reasonable care on the part of the entrant. There is no warrant for extending the statutory duty to the taking of steps to protect particular entrants from the consequences of their failure to take reasonable care to protect themselves.'[12]

1. I do not read Brennan CJ as intending to establish a point of general principle that the duty of an occupier is always limited in the way he has described it here. I consider that his Honour was dealing with the scope and content of the duty that applied in the circumstances before him. Or, if he were, I cannot see how it can survive the statutory expression of the scope of the duty now contained in the Wrongs Act 1958 that has no such limitation.[13] Further, Brennan CJ was dealing with a failure by a council to provide fencing in a national park and his statement was qualified as applicable only where 'the authority has done nothing to create or increase' a risk.[14] The circumstances of this case are different, as the Council built the fences around the ovals and built the new nets adjacent to the two ovals and the case is concerned with whether it should have added a gate.
2. For the 2021/2022 season, the Council granted the Club exclusive access to the Eastern oval and the nets from 4pm to 8.30pm on Mondays, Tuesdays, Wednesdays and Thursdays, shared access for that time on Fridays, and shared access from 9am to 8.30pm on Saturdays and Sundays. The material provided to the Council indicated that the Club had 204 male players and 16 female players spread across 16 teams from under 6s to over 35s.
3. In the absence of a gate, then, the Council knew or ought to have known that some hundreds of people, of a variety of ages, would likely be climbing or jumping over the fence at the approximate location where the plaintiff fell on many occasions each week, and that this would likely continue to be the case for each cricket season into the foreseeable future.
4. Seen in that light, and avoiding hindsight, the risk that someone would, sooner or later, suffer an injury of some description, even if not catastrophic, was real.[15] It was certainly not far-fetched or fanciful and it was not an 'insignificant risk'.[16] As noted, gates had been installed that provided direct access from the pavilion to the Eastern oval, and direct access from the pavilion to the Western oval, and a gate was to be installed that provided direct access from the new nets to the Western oval that would be complete before that oval was again to be used, but there was no gate that provided convenient direct access between the new nets and the Eastern oval. I conclude that a council responsible for the infrastructure at the Reserve, acting reasonably, and having regard to the aggregate risk of injury associated with the expected combined use of the new nets located to the south of the Eastern oval and that oval and the Western oval, and the relative ease and modest cost and absence of countervailing risk of installing a gate which would obviate that risk of injury, and notwithstanding that persons would or might themselves appreciate that there was a danger in jumping or climbing over a fence, would have installed a pedestrian gate in the adjacent boundary fences when it installed the new cricket nets, including a gate at or about the location where the plaintiff fell and the gate was later installed.
5. In reaching this conclusion, I have not overlooked the fact that the Council was responsible for many ovals and other facilities across the municipality. The Council argued that it was wrong, and impermissibly involved hindsight, to focus only on the rights or wrongs of installing a gate at this particular location.[17] The evidence established, the argument went, that people routinely climbed or jumped over all parts of all fences of all ovals and that it could not be the case that the Council was required to install gates, effectively everywhere, to prevent that happening or the risk of injury from that happening. I accept the legal principle underlying this submission but do not accept the conclusion. Hindsight must be avoided, and it would be unreasonable to require a gate in a fence anywhere that anyone might ever otherwise climb it. But that does not mean that it is never unreasonable not to install a gate. It is not unreasonable that the Council do nothing in response to the risk of injury to individual persons climbing fences on random occasions and at random locations as they independently arrive at an oval or chase a ball over the boundary line. But this is different. Here, the Council installed a piece of infrastructure for use by cricketers adjacent to another piece of infrastructure also for use by the same cricketers, in circumstances where it was expected that the cricketers would routinely be moving between those two pieces of infrastructure and it was likely that many or most of them in the absence of a gate at that location would be climbing or jumping the fence. Further, there is no basis for me to infer that there are so many like situations under the Council's control where the design is such that many persons would be jumping or climbing over a fence at a particular location that to require it to ameliorate that risk across the municipality would be overly burdensome. Looking at this Reserve, for example, it is apparent, as noted above, that there are gates seemingly at every other location where there might be expected to be lots of movements to and from the oval - but not at this particular point.
6. The Council submitted that causation was not established because as a matter of 'commonsense' the plaintiff's injury was caused by his decision to climb or vault over the fence rather than use one of the gates. I do not accept this submission. It proceeds on the implicit basis that there must be identified one operative or major cause of an injury but it is well-established that a plaintiff is entitled to recover damages if a defendant's negligence is 'a cause' of injury. It is necessary to establish a counter-factual.[18] The counter-factual here is that there was a gate in the fence to the Eastern oval adjacent to the new nets. I am satisfied that had a gate been installed at that location, then the plaintiff would have used it and his injury would have been avoided. In this way, the Council's negligence was a 'necessary condition of the occurrence of the harm'[19] and it is 'appropriate' that the scope of its liability extend to the plaintiff's harm.[20] Accordingly, I find that the Council's negligent failure to install a gate in the fence to the Eastern oval adjacent to the new nets was a cause of the plaintiff's injury.
7. It follows that, subject to its defence that the plaintiff voluntarily assumed the risk of injury, the Council is liable in damages to the plaintiff.

D.2 Did the Club ask for a gate or raise any and if so what concerns with the Council?

1. It is still necessary for me to consider whether or to the extent to which the Club asked the Council to install a gate at the location of the plaintiff's injury or raised safety concerns about its players jumping or climbing the fence because:

(a) it may be relevant when assessing the degree to which the Council breached its duty of care for the purpose of determining an appropriate reduction in damages for contributory negligence by the plaintiff or for a just and equitable contribution between the defendants; and

(b) the plaintiff's case against the Club is, among other things, that it 'should have done more' in its dealings with the Council in this respect.

1. The Council disputes that the Club ever informed the Council that the cricketers were climbing or jumping over the fences adjacent to the new nets or that it was concerned about player safety or that it asked that a gate be installed in the fence to the Eastern oval adjacent to the new nets. It is accepted by all that if the Club ever did inform the Council of any of those things before the plaintiff's accident, it did not do so in writing.
2. The evidence as to what was said or was not said must be assessed having regard to the surrounding context. It is accepted, or I find, that:

(a) When the new nets were installed, between July and October 2020, and for the 2020-2021 cricket season, the Eastern oval was out of use and the Club was using the Western oval with the new nets for its training and games;

(b) On 11 June 2020, in response to a request for feedback from the Council initiated by Mr Carroll in April 2020 about the 'existing player entry gates' on the Eastern oval - that is, the gates by the pavilion - Mr Woolnough emailed saying it would 'make sense' to move the south gate 'to directly at the end of the pathway'. This communication was, of course, during the football season and not the cricket season. On 21 October 2020, Mr Woolnough sent a photograph of the suggested location;

(c) Shortly prior to 29 October 2020, by which time the new nets were in use but the Club was using only the Western oval, Mr Woolnough asked Mr Carroll of the Council to install a gate in the Western oval fence adjacent to the new nets. At the request of Mr Carroll, on 29 October 2020 Mr Woolnough put that request in an email. Mr Woolnough's email asked for 'an access gate' in the Western oval 'opposite the entrance to the new nets', and noted that the 'other access point is around near the clubrooms'. He attached a photograph of a proposed location. Mr Carroll raised the request with his superior by email. Mr Carroll's email to his superior indicated that the gate was sought 'to allow for the cricket net users to enter onto the ground in a more direct way than walking a little further around'. The Council decided to add the gate as requested as part of the works scheduled to be performed on the Western oval the following year, that is, in 2021. It did not install it immediately;[2]

(d) By the 2021-2022 cricket season, the works on the Eastern oval had ceased and the Western oval was being renovated (and its fence replaced), and so the Club was now using the new nets with the Eastern oval for its training and games; and

(e) As part of the renovation of the Western oval, a gate was installed, as planned, in the fence adjacent to the new nets. The evidence did not establish exactly when it was installed but it seems likely this occurred sometime after August or September 2021, as the renewal works on the Western oval did not commence until after the football season ended;

(f) On 17 November 2021, Mr Woolnough emailed the Council 'following up' on a 'few things' that they had talked about. The email did not make any reference to a request having been made by the Club for a gate in the fence to the Eastern oval; and

(g) On 6 September 2022, more than six months after the plaintiff's accident, Mr Woolnough emailed Mr Croughan of the Council saying that the gate in the Eastern oval fence was 'urgently required'. The email noted that this had been 'asked for a few times', without specifying when those times were. Mr Croughan the same day forwarded the email to his superior with comments. Among the comments, he said that the Council had 'never received an official request in writing [for a new gate] with it having just been mentioned in a few meetings'.

1. Mr Woolnough said that he had asked for the gate in the Western oval fence because he had seen the players climbing the fence and it 'just didn't look right'. He said that he later, at a meeting at the pavilion, also asked Mr Dean of the Council for a gate in the Eastern oval fence adjacent to the new nets. He said that he told the Council that he wanted the gate installed 'for safety and ease of access'. He said that Mr Josh Deans-Draper,[21] who was on the Club's committee, was also at the meeting, and he 'believed' that Mr Croughan from the Council was also there and that Mr Barton from the Council was 'possibly there'. Other than saying that the meeting took place before his son's accident, he was not able to say when the meeting took place. He did not take notes of this meeting.
2. When asked about the level of his concern, and the fact that he himself climbed the fence, Mr Woolnough said that he had had 'a small worry' and he agreed with the proposition that he thought the risk of someone getting hurt was 'very, very small'. Under cross-examination by the Council, he said it 'made sense' that the meeting might not have been within weeks or months of his son's accident as otherwise he would remember its date, and agreed it was possible that he didn't raise the gate as a safety issue but rather just as an issue 'of convenience'.
3. Mr Deans-Draper was the 'grounds manager' on the Club's committee. He said that he could remember being at a meeting with the Council on the front balcony of the pavilion overlooking the Eastern oval when Mr Woolnough raised the issue of the need for a gate in the Eastern oval fence. He then said that he could not recall 'the thrust of what was said', but I did not interpret that evidence as his resiling from his evidence that there were discussions concerning the need for a gate, but I interpreted them rather as him saying that he could not otherwise now recall what was said. Other than being confident that the meeting took place before the plaintiff's injury, he could not say when it took place. He said that Mr Dean and Mr Zumbo were present, and another person who was in charge whose name he could not recall. He said there was a ' basic discussion' about putting in the gate, and the Council said they would 'come back to us' at a later time. Both 'accessibility', or 'making it easier', and safety were raised. He said he rang Mr Dean a couple of weeks later to follow it up and got the same response. Under cross-examination by the Council, he described the person whose name he could not recall as an older and tall person with grey hair who was with the Council for a relatively short time while someone was on maternity leave.
4. The Council called the people who were said to have been or possibly to have been at this meeting:

(a) Mr Dean said he finished working with the Council in late November 2021. He could not recall a request being made for a gate into the Eastern oval and if that such a request was made he would have asked for it to be put in writing. He accepted that he met with organisations (such as the Club) including on an ad hoc basis and that issues such as a gate in a fence might be raised in such meetings. He could not say that there had definitely not been a meeting with Mr Woolnough and Mr Deans-Draper, whom he knew from playing cricket against him, at which the need for a gate was raised, and said that installing a new gate was a 'relatively minor' piece of work;

(b) Mr Zumbo, who ceased working with the Council in about mid-December 2021, could not remember a meeting in which a request for a gate in the Eastern oval was raised and said that he would have recalled it if there had been such a meeting. His main role was responding to maintenance issues and he reported to Mr Dean. He could not recall a meeting with Mr Deans-Draper, whom he knew from playing cricket, and said that he would have recalled attending a meeting with Mr Deans-Draper if he had done so;

(c) Mr Croughan took over from Mr Dean from December 2021 (he said there was a short period of handover when they were working together). He could not recall meeting with Mr Woolnough, Mr Deans-Draper and Mr Dean on the balcony at the pavilion, or anyone telling him that people were jumping the Eastern oval fence, or any discussion about a gate in the Eastern oval fence until after the plaintiff's accident. He said that if a request were made for a new gate in that fence, he would have asked for it to be put in writing. He said that the statement in his 6 September 2022 email (set out in para 39(g) above) to there having been oral requests for a new gate referred to requests made after the plaintiff's accident. Under cross-examination, he accepted that it was possible that there had been a meeting at which the lack of a gate was raised as 'a small safety concern' but he could not recall it and that such a request could 'fall through the cracks';

(d) Mr Barton was the 'team leader' (that is, the person to whom Mr Dean and Mr Croughan reported) for 12 months between August 2021 and July 2022. He was six foot five inches tall, had grey hair, appeared older than Mr Dean or Mr Zumbo, and was filling in for someone on maternity leave. I am satisfied that he is the person who Mr Deans-Draper described as being at the meeting whose name he was unable to recall. Mr Barton could recall meeting with Mr Dean and one or two people from the Club to discuss unsafe turf on the Eastern oval. He accepted that the meeting could have been both on the oval and in the pavilion. He said that the issue of a gate in the fence 'may have been discussed then' but that he 'didn't have any recollection of that' and later that it was 'entirely possible' that the Club might have said that it had 'an issue with people going over the fence and that's why we want a gate'. He said that such a request should have been captured in writing, but accepted that if the Council didn't ask for an oral request to be put in writing it might 'fall through the cracks'.

1. All of these witnesses struck me as honest people doing their best to give accurate evidence. It must be borne in mind, though, that they were giving evidence in relation to a meeting, or the possibility of a meeting, that took place some four years ago, that would have had no particular significance at the time, and in respect of which they were unable to refresh their memory from any notes, and in the context of there having since been a terrible accident giving rise to a claim for substantial damages. 'The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between the "event" and its recall, the greater the margin for error.'[22] Honest people may come genuinely to believe that things were said that did not happen.
2. That said, and taking the evidence of these witnesses and the surrounding circumstances into account, I am satisfied that the Club did ask the Council for a gate in the Eastern oval adjacent to the new nets in a meeting held sometime in late 2021 and, probably, after Mr Woolnough's email of 17 November 2021. I am satisfied that Mr Woolnough and Mr Deans-Draper were at that meeting representing the Club, and that at least Mr Dean and Mr Barton were present representing the Council. I formed the view that Mr Woolnough's memory that there had been a meeting at which the need for a gate had been raised was reliable but that otherwise his memory of the details of that meeting was unreliable. Mr Deans-Draper's evidence that there was such a meeting and that it was at least in part in the pavilion and that a gate was asked for at the meeting impressed me as reliable. Also, the fact that the Club would ask for a gate in the fence at the Eastern oval at or about this time accords with ordinary human behaviour: it is clear that the Club asked for a gate in the fence of the Western oval to allow easy access from the new nets when it was using the Western oval, and so it would make perfect sense that when the Club started using instead the Eastern oval that it would similarly ask for a gate in the fence of the Eastern oval. Indeed once it is accepted, and I do accept, that the vast majority of the players that had been accessing the Western oval by jumping or climbing over its fence were by then accessing the Eastern oval by jumping or climbing over its fence, it would be somewhat surprising if a like request were not made.
3. Further, I accept that Mr Woolnough or Mr Deans-Draper probably conveyed the notion that the gate was required for convenient access_._ Equally, because it is consistent with ordinary human experience that some explanation would be given, I am satisfied that when the request was made, the Club explained, as was the case, that in its absence people were climbing or jumping the fence. It is not as if the Club was concerned that people were instead wasting time by walking to the gate near the pavilion, and so the 'convenience' with which it was concerned was its players not having to climb or jump the fence, not them not having to divert from the most direct path. But I do not accept that they otherwise explicitly raised the lack of a gate as a safety issue for the following reasons:

(a) Mr Woolnough's earlier written request in relation to the gate to the Western oval did not identify its absence as a safety issue;

(b) Mr Woolnough's memory of the meeting was, in my impression, as I have said, quite vague, which was of course understandable, and at one stage he accepted that if the gate were required 'for safety reasons, it would have made it into an email';

(c) At the time of the meeting, Mr Woolnough himself continued to climb or to jump over the fence rather than walk around, and neither he nor Mr Deans-Draper made any efforts to discourage any other players from doing so. Their failure to take any steps themselves to prevent the players from doing so sits somewhat uneasily with either of them having a sense, at that time, that the climbing or jumping over the fence associated with the lack of a gate was a significant safety issue that required some urgent response. In Mr Woolnough's own words, at the time he had only a 'small worry';

(d) When Mr Deans-Draper was first asked, he said that although he could recall the need for a gate being raised, he could not recall 'the thrust of what was said.' As I have said, I did not interpret that evidence as his resiling from his evidence that there were discussions concerning the need for a gate, but rather as him saying that he could not otherwise now recall what was said, and that evidence impressed me as truthful and likely accurate. His evidence-in-chief then finished and other witnesses were interposed. Then, four days later, when he was recalled, he said in further evidence-in-chief that: 'the only reason we put forward to [Mr Dean] was just due to accessibility, making it easier, and safety'. His inability to recall that detail when he first gave evidence was unexplained. I consider Mr Deans-Draper's memory, to the extent that he now believes that he or Mr Woolnough explicitly raised the lack of a gate as a safety issue, and that Mr Dean made a note of that request in a notebook, although honestly held, to be unreliable in these respects; and

(e) It is entirely plausible that the Council representatives at the meeting might have forgotten the request for a gate, and not sought to take the matter further at the time, if the request was put forward as something that would improve access rather than something that must happen due to safety concerns. It is much less likely that they would have not recalled the request, or asked for it to be put in writing, or taken the request further, if it were explicitly raised at the meeting as a real safety issue.

1. I should add that I do not accept the evidence given that Mr Dean 'always' took notes in a notebook or that he took notes at the meeting. I accept that he probably sometimes took notes in a book, but Mr Dean denied that he always did, and said that he often took notes on his phone. That struck me as more likely and consistent with some photographs in evidence of another meeting taking place at the nets in which Mr Dean is shown without a notebook. That finding does not cause me to reject, however, the evidence referred to above in relation to the fact that there was a meeting with the Council and that a gate in the Eastern oval fence was raised at that meeting. Nor does the lack of any written record of a request for a gate in the Eastern oval fence, in Mr Woolnough's notes or in the Club's minutes or in any email sent prior to the plaintiff's accident or otherwise, cause me to reject that evidence.
2. Finally, the Council, relying on the rule in Browne v Dunn,[23] submitted that I should not find that Mr Woolnough or Mr Deans-Draper told Mr Dean that players were jumping or climbing over the fence because it was not put to Mr Dean in cross-examination that he was told of that fact. The rule in Browne v Dunn is a rule of fairness. Ordinarily, it requires a party to make it clear to a witness (and thus to its opponent) that the evidence of that witness on a particular point is being challenged and to put to that witness the evidence that the party is proposing to call that contradicts or conflicts with that witness's evidence. This gives the witness an opportunity to comment on the evidence to be led that is in conflict with or which contradicts his or her evidence, and the opposing party notice that the witness's evidence is disputed and an opportunity to call such other evidence on the point as is available.[24] The rule has a lesser role to play in circumstances such as that under consideration here when the evidence 'not put' was called in the plaintiff's case prior to Mr Dean giving evidence and Mr Dean's evidence, to the extent that he would say that the need for a gate was not raised, would clearly be disputed. Indeed, and no-doubt for those reasons, counsel for the Council adduced evidence from Mr Dean, in chief, that he could not recall anyone saying anything to him about players climbing or jumping fences and whether he thought that was something he would recall if it had been raised with him, to which Mr Dean replied: 'Ah potentially. It's been a long time, so I'm not - I can't recall'. In these circumstances, I do not consider that there has been any relevant unfairness to Mr Dean or to the Council.

D.3 Did the Council breach its duty by failing to respond to the request for a gate in the Eastern oval?

1. As I have earlier said, the Council knew or ought to have known that, because of the lack of a gate adjacent to the new nets, many cricketers were, or were likely to be, climbing or jumping over the fence. In that sense, the Council's failure to respond to the provision of this information at the meeting does not alter the legal obligation on it. Were I to be wrong in my conclusion that the Council knew or ought to have known that, because of the lack of a gate adjacent to the new nets, many cricketers were, or were likely to be, climbing or jumping over the fence, then the Council was made aware of that at this meeting. For essentially the same reasons as set out before, the Council, as the entity responsible for the infrastructure, and having regard to the aggregate risk associated with having many people repeatedly jump a fence over time, and the relative ease and minor cost with which the risk could be ameliorated by the installation of a gate, the Council should then have realised that its infrastructure was deficient in this respect and needed to be remedied.
2. If one considers a claim arising from a conclusion that the Council was only on notice of the risk of harm as from the date of this meeting, the issue then becomes whether the Council, acting reasonably, would have installed a gate before the plaintiff had his accident on 15 February 2022. In this respect, it is relevant, as noted, that the Council did not install the gate in the Western oval immediately after the Club's request but waited until after the end of that season when other works were also being done. Although the sports and recreation unit at the Council, in which Mr Dean and the others worked, could approve a request for a gate in the sense that they could decide that it should be built, they were not the unit at the Council that would actually build it or fund it. I accept the evidence from Mr Traill, supported by Mr Barton, that the parks and open space delivery infrastructure team at the Council would also have had to approve it and arrange for its installation. If the installation of the gate were treated as a project that incrementally improved the infrastructure, then it seems unlikely that it would have been installed by 15 February 2022; certainly, there was no evidence that it would be. However, it would be different if it were treated as a genuine safety issue. Mr Croughan said, and I accept, that if he had 'a safety concern' and wished to install a gate in a fence 'for that purpose', that it could be installed in 'a couple of weeks'.
3. On balance, I am satisfied that the Council, acting reasonably, and having regard to the number and range of ages of cricketers using their infrastructure and the relative ease and modest cost of installing a gate, if put on notice in November or December 2021 that most of the cricketers were in fact jumping over the fence multiple times at trainings to move between the new nets and the Eastern oval, would have seen that as a safety concern. And, if the lack of a gate were seen as a safety concern, I am satisfied that the Council, acting reasonably, would have installed a gate promptly and before 15 February 2022.

E Did the Club breach a duty of care owed to the plaintiff?

1. The Club is a community cricket club. It is an incorporated association. Its coaches were paid (or received an 'honorarium') but everyone else was a volunteer. It accepted that it was an occupier of the two ovals and the nets for the purposes of the Wrongs Act 1958 and thus that it owed to entrants including the plaintiff a duty to take such care as in all the circumstances of the case was reasonable to see that they would not be injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[25] The Club did not accept that it had a duty of any greater scope than that.
2. It was not said, ultimately, that the Club was at fault by creating some additional risk such as might be the case if, for example, a fielding drill was run in an unsafe way and someone was hit in the face by a ball or if the Club or the coaches directed the players to climb or to jump over the fence. Further, the plaintiff accepts that the Club could not itself install a gate in the fence. The plaintiff's case against the Club was instead that it was aware of the risk of falling and suffering injury that arose from the practice of climbing or vaulting over the fence, and that it:

(a) failed adequately to follow up its concerns about that risk with the Council; and

(b) failed to direct its coaches and players not to jump the fence.

1. I accept that a failure to ask to have an alteration made to the premises and a failure to direct someone to use a gate instead of climbing a fence is each a 'thing done or omitted to be done in relation to the state of the premises' and thus is potentially a breach of the duty the Club owed as an occupier of the premises.

E.1 Did the Club breach its duty by failing adequately to follow up the Council?

1. The Club was provided with the nets and ovals by the Council in the condition that they were in, including the lack of a gate between the new nets and the Eastern oval. The Club did not create the risk associated with the lack of a gate at the relevant point, and was not itself empowered to install a gate.
2. As set out in Part D.2 above, I have found, on the balance of probabilities, that the Club informed the Council that players were jumping or climbing over the fence and asked the Council for a gate to be installed in the Eastern oval fence.
3. In my assessment, by doing this the Club discharged its obligation to act reasonably. It was not unreasonable, in the circumstances, for the Club not to have explicitly raised the need for a new gate as a safety issue, as the facts necessary for the Council to assess the risks were conveyed to it, if not already known by it. The risk of injury in the short term remained relatively small, and it was not unreasonable for the Club to leave the matter with the Council, at least for a period of time.

E.2 Did the Club breach its duty by failing to direct the cricketers, including the plaintiff, to use the gate and not to climb or jump over the fence?

1. There was evidence, that I accept, that if the coaches had directed the players not to climb or jump over the fence they would not have done so, and that if the Club had told the coaches to give that direction then the coaches would have done so.
2. The question as to whether the Club acted unreasonably, having regard to what the community may reasonably expect from a community cricket club in the circumstances, by failing to direct its cricketers including the plaintiff to use a gate and not to climb or to jump over the fence, falls to be assessed in circumstances where:

(a) the plaintiff was a fit and healthy young adult voluntarily attending senior cricket training and was not, for example, in an employment or like relationship with the Club;

(b) the risk of significant injury on any one climb or jump was small;

(c) the Club had no greater expertise or ability to identify the risk of injury associated with jumping or climbing the fence than the plaintiff or any other adult player; and

(d) the plaintiff was an adult free to choose whether to jump or to climb the fence or to divert from the most direct path and to use a gate.

1. In these circumstances, and on the basis that the Club did not direct or induce players to jump or climb over the fence, I do not consider that it was unreasonable for the Club not to direct the adult players including the plaintiff to use a gate rather than to jump or to climb over the fence. I consider it was reasonable, from the Club's point of view, to leave that decision to each individual adult player.
2. Mr Woolnough now says that he and the Club 'should have done more'. That is an understandable reaction by a father to the fact of injury to his son. But it is, in my view, an assessment informed by hindsight. Assessing the matter prospectively, I do not consider that he or the Club acted unreasonably or are otherwise legally responsible for his son's injury.

1. For the above reasons, the plaintiff's case against the Club fails.

F Voluntary assumption of risk, or 'volenti non fit injuria'

1. The Council contended that, even if it had been negligent and its negligence was a cause of the plaintiff's injury, it was not liable to pay damages on the grounds that the plaintiff by choosing to traverse the fence had voluntarily assumed the risk of his falling and injuring himself while doing so - one of the defences described, in so far as it was applied in the workplace, as the 'unholy trinity' of common law defences to a claim in negligence.[26]
2. It is worth noting that the extent to which a risk is apparent or 'obvious' will be relevant when determining whether a defendant has been negligent in the first place, as it may be entirely reasonable for a defendant not to warn of, or not to remove, a risk that is obvious.[27] It may also be relevant to the issues of whether a plaintiff has been contributorily negligent by failing to take reasonable care for his or her own safety and, if so, the extent to which liability might be reduced due to contributory negligence. The defence of volenti non fit injuria, however, goes further: it operates to deny an injured person compensation even when that person has been injured in part due to the negligence of another. In this way, it operates, in effect, to transfer responsibility for the accident or injury entirely to the injured person. For that reason, the defence as it applies to an action in negligence has been described as 'very demanding'.[28]
3. 'Volenti non fit injuria' has been translated as 'there can be no injury to the willing'[29] or 'that to which a man consents cannot be considered an injury'.[30] It does not, as a Latin phrase, refer to the concept of 'risk'. The notion that a person cannot complain of a an injury to which they effectively consented is easily understood in torts such as trespass or assault or battery. No-one can complain of tortious conduct if they consented in advance to what would otherwise be wrongful conduct, as is the case where a patient consents to be examined or operated on by a doctor. The notion of consent is more complex in the context of a claim in negligence. Here, for example, it is not said that the plaintiff in any real sense consented to the Council not installing a gate adjacent to the Eastern oval. Instead, the focus is on the risk that resulted from the absence of a gate and the plaintiff's relationship to that risk. Consistently with this, the 'translation', or rather re-expression, of the phrase volenti non fit injuria as a defence to a claim in negligence has become 'voluntary assumption of risk'. But it is worth recalling that the concept underlying the operation of this defence, even in negligence, is that a person may not complain of another's wrong if they have by implication from conduct consented to that wrong or to the risk associated with that wrong; the defence does not apply if a person merely fails, even unreasonably, to avoid the risk associated with that wrong.
4. Accordingly, to succeed in this defence, it is not enough that the plaintiff knew that the conduct engaged in - traversing the fence - carried some risk.[31] The Council must establish that the plaintiff himself 'freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it'[32], that he 'fully appreciated the risk and, by voluntary choice, elected, agreed or consented to accept the risk'.[33] Further, a 'belief that the dangers [of which the plaintiff was aware] would not materialise, would negative the proposition that he accepted those dangers'.[34] In rather old-fashioned language: 'The duty of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognisant of the full extent of the danger, and voluntarily run the risk.'[35] It is only where a plaintiff, subjectively, has this full knowledge of the nature and extent of the risk, and voluntarily agrees to accept it, that that plaintiff may be seen to have accepted that the risk was in effect to be his and not the wrongdoer's.[36]
5. The requirement that a plaintiff have this full knowledge including of the extent of a risk before the defence is enlivened explains why, for example, people crossing streets who are hit by negligent drivers are entitled to damages, notwithstanding that everyone knows that crossing a street carries with it some risk of being so hit.[37] It also explains why the defence of volenti has not succeeded, so far as I am aware, in any of the so-called 'diving cases' where people have suffered serious injuries when diving into shallow water, even though it is obvious that diving into water of uncertain depth carries a risk of injury.
6. Under the Wrongs Act 1958, the plaintiff must be presumed to have been aware of the risk of injury if it were an 'obvious risk' and an 'obvious risk' to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.[38] But the Wrongs Act 1958 does not otherwise alter the common law requirement that a plaintiff must freely and voluntarily agree to incur that risk.
7. I am not satisfied that the plaintiff himself appreciated 'the nature and extent of the risk' - that he was exposing himself to a risk that he might become a quadriplegic or very seriously injured - and freely and voluntarily accepted that risk. The plaintiff said, and I accept, that he had 'done it [climbed over the fence] many times and never experienced difficulty doing it' and that he 'didn't see any problem'. He did deny that he ran and vaulted over the fence, which I will come to later, and accepted that that would be 'a dangerous thing to do'. But it was never put to him that he subjectively appreciated that by doing so he was exposing himself to a risk of suffering very serious injury, and I do not consider that he did have that appreciation and accepted that risk. I consider it more likely that the plaintiff, in fact, did not turn his mind to the nature or the level of the risk involved at all, but merely, along with the other cricketers present, simply traversed the fence out of convenience. Equally, I accept that the risk of suffering some injury while traversing a fence (instead of using a gate) was an 'obvious risk' within this definition and so I accept that the plaintiff must be presumed to have been aware of this risk. However, I am not satisfied that the risk of suffering severe injury was an 'obvious risk' within the terms of the Wrongs Act 1958 so that the plaintiff must be presumed to have been aware of a risk of that extent.
8. For these reasons, the defence of volenti non fit injuria fails.

1. If the plaintiff contributed to his injuries by failing to take reasonable care for his own safety, his damages must be reduced by the proportion that is just and equitable having regard to his share in the responsibility for his injury.[39]
2. A heedless or inadvertent act is not always indicative of a lack of care: 'there is no precise line to be drawn between mere inadvertence, consistent with taking reasonable care for one's own safety, and the kind of carelessness which can properly reduce the degree of liability imposed on a defendant.'[40] Equally, the mere fact that someone has made a decision that resulted in a risk of injury does not mean that they are negligent: as always, the question is whether the behaviour, looked at without hindsight from the plaintiff's point of view in the 'real world', was unreasonable in all the circumstances having regard to the extent of the risk, the likely seriousness of any injury in the event that the risk eventuated, and the burden of avoiding that risk. The comparator is not a person who is particularly cautious, but rather 'a person of ordinary prudence'.[41]
3. The plaintiff's conduct on this occasion is to be assessed in circumstances where he was and had been on previous occasions engaged in cricket training that required him to move between the ovals and the new nets and where there was no gate where I have found there should have been at the convenient point in the fence between the two. The negligence of the Council created a dilemma for him: to go out of his way each time, or to engage in conduct that was more convenient but had a small risk of injury.
4. The plaintiff gave evidence that he jogged to the fence, slowed down and stopped when he got there, put both hands on the fence, then swung his legs one by one over the fence. One of his legs, he could not recall which one, 'got hooked in the fence', presumably at the top, causing him to fall forwards onto his head. He could not recall to what side of his body he put his hands on the fence, or whether it was his first or second foot that got hooked in the fence. I ruled that the opinions of an ergonomist, Mr Dohrmann, were inadmissible, but the history given by the plaintiff to Mr Dorhmann was admitted by agreement. The plaintiff told Mr Dohrmann that he swung his 'leading leg across the fence while he lifted his backside onto the fence using both hands'. When this history was put to the plaintiff, he agreed that he was intending to 'put [his] bum on the top of the rail, and then swing the other leg over'. The plaintiff did not otherwise call any evidence from anyone who witnessed the fall.
5. The Club called evidence from another player who did witness the fall. That player was also moving from the oval to the new nets, and said that the plaintiff ran past, 'reasonably fast', did not slow down before arriving at the fence, and when he got there, he:

put his two hands on the fence, and he tried to hop over with both his legs at the same time, um and his feet clipped the top of the fence, and then he went headfirst into the ground.

1. The same witness said by the time the plaintiff had arrived at the fence, about half the group of between 30 and 50 cricketers had already traversed the fence in front of the plaintiff and 'a lot of people would use two hands and then flick one or both legs over'.
2. This eyewitness impressed me as an honest person with a good view of what happened and with a good memory. Their credit was not attacked (and I note that much of their other evidence supported the plaintiff's case). The plaintiff's description was given with some uncertainty and I was unsure about the reliability of his memory of precisely how it was that he fell. I prefer and accept the evidence of the eyewitness as to how the accident happened.
3. There are three respects, then, in which the plaintiff might be thought to have contributed to his own injury: first, by choosing to cross the fence rather than take the extra distance to a gate; second, by choosing to run to and jump or to vault over the fence supported by his hands rather than stop and go over it leg by leg; and third, by failing to take care in the course of vaulting over the fence to ensure that his foot did not hit the top of the fence causing him to lose balance.
4. I am not satisfied that the plaintiff acted negligently by failing to use a gate. As I have adverted to above, traversing a fence on a single occasion gives rise only to a very small risk of injury and an even smaller risk of serious injury. Again, hindsight must be avoided. Here, the plaintiff found himself in a situation where the group of which he was a part were effectively all moving towards the fence in order to traverse it at that location, which was the convenient location to access the nets. To date, no one had hurt themselves doing so. For a fit adult person, deciding to climb the fence, rather than divert to a gate some distance away, in accordance with the group practice, does not amount to a failure to take reasonable care. Put another way, I am not satisfied that a reasonable person at cricket training in the plaintiff's position would not have attempted to traverse the fence in the circumstances in which he found himself.
5. That said, a reasonable person in the plaintiff's position would have taken care to go over the fence in a careful manner. Running to and vaulting over the fence, without appreciably slowing down first, self-evidently and appreciably increased the risk of the plaintiff falling and hurting himself. There was no reason not to take it more slowly and carefully and in my view a reasonable person would have done so. This is so even though the risk was small and any injury was likely to be small. Running at and vaulting over the fence, rather than slowing down and stepping or climbing over carefully, is not excusable as 'mere inattention or inadvertence'.[42] Also, probably, there was some lack of care in the way the vault was performed, because the plaintiff's foot or feet got caught on the rail rather than cleared them. This adds little, however, to his responsibility because it is really the risk of this happening that is behind the finding that it was negligent to perform the running vault in the first place.
6. Determining the 'just and equitable' reduction having regard to the plaintiff's 'share in the responsibility for the damage' must be informed by a consideration and comparison of the degree to which the respective parties' behaviour fell below the standard of care required of them and the causal potency of their negligence.[43] This is, ultimately, a matter of impression and judgment. The Council installed and were responsible for the sporting infrastructure at the reserve and negligently created a small risk of injury for many people by creating a situation where many cricketers including the plaintiff were likely to cross the fence between the new nets and the Eastern oval on many occasions over a prolonged period and some injury at some time was highly likely in those circumstances. The plaintiff did not act unreasonably by attempting to cross the fence, but did act unreasonably on this particular occasion by running at and attempting to vault over the fence, rather than crossing it more slowly and in a controlled manner. I consider the Council fell substantially further below the standard of care required of it than the plaintiff fell below the standard of care required of him. In a real sense, the Council negligently created a danger, and the plaintiff negligently failed to avoid that danger. I reject as unrealistic the Council's submission that a reduction of 100% for contributory negligence was 'well within range'. On balance, in my assessment it is just and equitable that the plaintiff's damages be reduced by 20%.

1. As I have not found the Club liable, the question of contribution between joint tortfeasors under Part IV of the Wrongs Act 1958 does not arise.
2. The Council published a 'Community Sports User Guide' that set out conditions upon which the Club was entitled to use its two ovals and the nets including that the Club used the facilities 'at its own risk' and that the Club 'agreed that Council will not be liable for incidents arising out of [the Club's] use of the facility'. It was clarified in oral submissions, however, that the Council did not contend that this gave it any contractual right to an indemnity from the Club; rather, it gave the Council a defence to any claim that might be brought against it by the Club. Accordingly, it is not necessary to determine whether this document was contractual or if so the scope or operation of its terms.

(a) judgment for the plaintiff against the Council;

(b) judgment for the Club against the plaintiff;

(c) an order that the Council pay damages to the plaintiff in the amount of $15.2 million, being the agreed sum of $19 million reduced by 20% for contributory negligence;

(d) an order that the plaintiff's claim against the Club be dismissed; and

(e) an order that the Council's claim for contribution from the Club be dismissed.

1. I will hear the parties on the precise form of order, including in relation to interest if that is an issue, and on the question of costs.

[1] Wrongs Act 1958 (Vic) s 14B(3).

[2] Ibid, s 14B(4)

[3] Ibid s 48(1).

[4] Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, 520 [5] (Gleeson CJ).

[5] See, eg: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 461 [124] (Hayne J); Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317, 330 [38] (McHugh J).

[6] Wrongs Act 1958 (Vic) s 48(2). These requirements mirror those set out by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48. As observed by Beach J in Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412 at [5], citing Neave JA in Central Goldfields Shire v Haley [2009] VSCA 101; (2009) 24 VR 378 at 380 [4]- [6], and confirmed by the Court of Appeal in Gosling v Lorne Foreshore Committee of Management Inc [2009] VSCA 228; (2009) 25 VR 302 at 304 [4] (Ashley, Redlich JJA and Kyrou AJA), Part IIA of the Wrongs Act 1958 does not replace the common law duty with a new statutory duty but rather redefines the content of that duty.

[7] See, eg: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 461 [124] (Hayne J); Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330, 353 [65]-[66] (Gummow J).

[8] See, eg: Nelson v Lysaght (1975) 132 CLR 201; Wrongs Act 1958 (Vic) s 49(c).

[9] Wrongs Act 1959 (Vic), s 14B(4), s 48(2).

[10] In Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423, 431 (Mason CJ, Deane, Dawson and Gaudron JJ): 'It is now well established that a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety' (footnote omitted).

[11] See, eg Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, 247 [37] (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ).

[12] [1998] HCA 5; (1998) 192 CLR 431, 443-444 [19].

[13] Although s 14B of the Wrongs Act 1958 (Vic) pre-dates _Romeo v Conservation Commission of the Northern Territor_y [1998] HCA 5; (1998) 192 CLR 431, the accident in that case took place in the Northern Territory and the Court was applying the common law rather than any statutory description of the duty owed by an occupier of premises.

[14] [1998] HCA 5; (1998) 192 CLR 431, 446 [22].

[15] As the Council emphasised, it is the risk of injury associated with people jumping or climbing the fence, not the likelihood of people jumping or climbing the fence, that must be considered: see eg Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330, 351 [61] (Gummow J).

[16] Cf Wrongs Act 1958 (Vic), s 48(3).

[17] See eg Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 460 [122] (Hayne J) citing Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431. See also Wrongs Act 1958 (Vic), s 49(a).

[18] See, eg, Munday v St Vincent's Hospital [2021] VSCA 170, [22] (Maxwell P, Walker JA),

[19] Wrongs Act 1958 (Vic), s 51(1)(a).

[20] Ibid s 51(1)(b).

[21] When he gave evidence, he said his legal name was in fact just Josh Deans. I will refer to him as Mr Deans-Draper, though, because that is what everyone else called him, and it more clearly distinguishes him from Mr Callum Dean.

[22] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 107 (McHugh J). See also Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555, [162]-[166] (Besanko J).

[24] See, eg: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 22-23 (Hunt J); R v Birks (1990) 19 NSWLR 677, 686 (Gleeson CJ).

[25] Wrongs Act 1958 (Vic) s 14B(3).

[26] See, eg, Harold Luntz, 'A Personal Journey through the Law of Torts' [2005] SydLawRw 20; (2005) 27(3) Sydney Law Review 393, 402. The other two were contributory negligence, which before apportionment legislation was a complete defence, and the now-abolished defence of 'common employment' where an employer was not liable for the negligence of a plaintiff's co-employee.

[27] See, eg: Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1988) 192 CLR 431, 447 [25] (Brennan CJ), 456 [56] (Toohey and Gummow JJ); Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 503-504 [143]- [144] (Hayne J).

[28] Moore v Woodforth [2003] NSWCA 9, [32] (Mason P, Meaher and Heydon JJA agreeing).

[29] LexisNexis Concise Australian Legal Dictionary (5th ed, 2015) 'volenti non fit injuria'; Encyclopaedic Australian Legal Dictionary (online at 2 April 2026) 'volenti non fit injuria'.

[30] Osborn's Concise Law Dictionary (11th ed, 2009) ' volenti non fit injuria'.

[31] Smith v Charles Baker & Sons [1891] UKHL 2; [1891] AC 325. As was pointed out in Letang v Ottawa Electric Railway Company [1926] AC 725 at 730, quoting from Thomas v Quartermaine (1887) 18 QBD 685 at 696: 'it is not 'scienti' non fit injuria, but 'volenti''.

[32] Letang v Ottawa Electricity Railway Co [1936] AC 725, 731, citing Osborne v London and North Western Ry Co (1888) 21 QBD 220, emphasis added.

[33] Canterbury Municipal Council v Taylor [2002] NSWCA 24, [144] (Ipp AJA, Spigelman CJ and Mathews AJA agreeing), citations omitted.

[35] Thomas v Quartermaine (1887) 18 QBD 685, 695 (Bowen LJ), emphasis added.

[36] Smith v Baker & Sons [1891] UKHL 2; [1891] AC 325, 355 (Lord Watson).

[37] This point was made 135 years ago by Lord Halsbury LC in Smith v Baker & Sons [1891] UKHL 2; [1891] AC 325 at 337.

[38] Wrongs Act 1958 (Vic) ss 53, 54.

[39] Ibid, s 26(1).

[40] Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419, [47] (Basten JA).

[41] Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24, citing Vaughan v Menlove [1837] EngR 424; (1837) 132 ER 490, 493.

[42] Cf McLean v Tedman (1984) 155 CLR 306, 315 (Mason, Wilson, Brennan and Dawson JJ).

[43] Podrebersek v Australian Iron and Steel Pty Ltd (1985) ALR 529, 532; 59 ALJR 492.