Warren v Revesby Heights Ex-Servicemen's Memorial Club Ltd [2001] NSWCA 465 | Case summary

1 MASON P: I agree with the judgment of Stein JA. 2 I would add this. I am not persuaded that negligence was established against the person or persons who did organise the race. I accept that there was a foreseeable risk of some injury to some spectators given the capacity of billy carts racing against each other down a curving slope of roadway to collide. But, as the trial judge remarked, they were billy carts and not formula one speedcars. The appellant positioned himself and his young children on a grassy nature strip on the inside of a curved portion of the roadway. Perhaps he had good reason to expect that certifugal force made it safe to sit there, rather than on the other side of the road. Perhaps the presence of barriers on the opposite side could have impeded his view. Accepting as I do that the organisers of the event had a duty to exercise reasonable care as regards the safety of competitors and spectators alike, I am not persuaded that failure to erect barriers that would have protected the class of spectators that included the appellant betokened breach of such a duty. 3 STEIN JA: The appellant sued three defendants for damages for negligence arising out of injuries he received on 22 March 1998. He failed against each defendant and appeals with the leave of the court. 4 On Sunday, 22 March 1998 he was a spectator seated on a grass verge at the side of Centaur Street, Revesby Heights. An event known as The Great Aussie Billy Cart Race was taking place and the road had been closed to allow the races to be held. 5 The plaintiff was sitting on the grass with his young children adjacent to a tree and near a driveway to a house. The races started some distance up a fairly steep hill from where the plaintiff was viewing. Large numbers of the public were also watching along the Centaur Street course. During one race two billy carts became entangled and one of them careered across the road up the driveway and collided with the plaintiff on the grass verge, injuring his left ankle. There were no barricades or barriers in place in the vicinity although there were some in place at other positions along the route. 6 Hogan ADCJ found that there was no contributory negligence and assessed the plaintiff's damages at $16,650. However, the principal issue was liability and the question came down to who was it that organised and controlled the event. 7 As his Honour observed, the only material particular of negligence alleged a failure to provide proper safety barriers on the roadway so as to prevent the accident. As I have said, the plaintiff proceeded against three defendants. The first was the Revesby Heights Ex-Servicemen's Memorial Club Ltd, a registered club, sometimes referred to in evidence as the 'mother club'. The second was a Mr Bruce McFarlane and the third was the Revesby Heights Ex-Servicemen's Junior Rugby League Football Club Inc. This was an incorporated association and one of a number of sporting clubs within the organisation of the mother club. I will refer to the third defendant as the football club. 8 The Billy Cart race had apparently commenced to be held in 1993. Mr McFarlane and a Mr Anderson (who was neither a party nor called to give evidence) were apparently involved from its inception. Indeed, it may have been their idea. Be that as it may, it seems that for each of the years from 1993 to 1997 the race and associated Billy Cart Ball were organised and controlled by the football club, which received all of the profits. 9 By August 1997 a dispute arose as to whether other sporting clubs should share in the profits with the football club. Mr McFarlane and Mr Anderson left their positions on the football club and advocated a sharing of profits. A letter from the first defendant registered club to the football club dated 26 August 1997 confirmed that it was content that the football club conduct the race in 1998 under its (the football club's) banner and the first defendant would be a sponsor. 10 However, by 17 September 1997 the first defendant became concerned with the dispute between the football club and Mr McFarlane and Mr Anderson and others. It appointed one of its directors, Mr Gordon, to mediate the dispute. The mediation did not appear to be wholly successful and on 13 November 1997 the football club wrote to the first defendant complaining of its loss of control of the race. 11 According to the evidence, by January 1998 the football club ceased to have any role in the organisation or control of the race. However, since it was to receive a percentage of the profits, it was expected to provide some volunteers to help with the barbeque and marshalling activities. 12 There is no doubt that significant organisation was necessary for the race, particularly on the day but also beforehand. Council permission had to be obtained to close the street. The street closure had to be advertised. Affected residents had to be notified. Barriers had to be placed for the street closures. Police, the fire brigade and ambulance authorities had to be notified to attend. Catering and prizes had to be arranged. 13 In 1997 the football club was responsible for all of these things. On 10 January 1998 the second defendant, Mr McFarlane caused a letter to be sent to the Council seeking its permission to hold the event on 22 March 1998. The letter was headed 'Revesby Heights Billy Cart Club c/- Revesby Heights Ex-Servicemen's Club'. It was signed by Mr McFarlane as 'Secretary' followed by his telephone numbers. Mr McFarlane had adopted a precedent from a previous year and altered it as was necessary. 14 On 5 March 1998 the Council wrote to 'The Secretary, Revesby Heights Ex-Servicemen's Club' for the attention of Mr Bruce McFarlane and commencing 'Dear Mr McFarlane'. The Council indicated that approval had been granted subject to four conditions, the last of which was as follows: The Revesby Heights Ex-Servicemen's Club is be responsible for all traffic control and for installing and maintaining appropriate road closure safety barricades. 15 The letter was never received by the first defendant. Neither was it received by the football club. Nor it is clear that Mr McFarlane ever received it. 16 At some later stage the street closure was advertised in the Bankstown Torch. Mr McFarlane delivered the copy to the newspaper office. He said that he did this because he was nearby and passed the Torch office three times a day. None of the defendants accepted that they paid for the advertisement. 17 His Honour said that it was clear that the first defendant registered club took no part in actually organising the event. This must be right. It did however provide some equipment, which included barbecues and road barriers, as well as providing hospitality at the club premises. His Honour said: … there is no evidence on which I am prepared to find that in matters concerning the actual running of the race the registered club was directly responsible, or that those who did organise the race were in any way subject to its control or direction. 18 This was a conclusion which was perfectly open to his Honour and consistent with the evidence. Such involvement as the registered club had was peripheral and in no way can it be concluded that it organised or controlled the event. The fact that the Council directed its approval to the first defendant is immaterial. The registered club never applied for approval and never received the Council letter. The letter from the Council cannot be seen as imposing any obligation on the registered club regarding the control of the event. It knew nothing about the letter. His Honour was correct to find a judgment for the first defendant. 19 In turning to the position of the football club, his Honour noted that it had organised and controlled the race in 1997. However, he said that it was clear 'that it did not actually undertake that responsibility in 1998'. 20 This was a finding which was in accordance with the bulk of the evidence. The football club, having been annoyed at the dispute about splitting the profits with other sporting clubs within the registered club, and its losing control of the race, more or less withdrew from the planning of the event in around January 1998. On the day of the race it did see that a number of its members participated as volunteers. If it had not done this, its share in the profits might have been in jeopardy. 21 It is apparent that his Honour's conclusion that the football club did not control or organise the 1998 race was open and supported by evidence. 22 That leaves the second defendant, Mr McFarlane. Of his position his Honour said this: … although the second defendant played some part in the continuation of this event, with which he had been so closely associated in the past, I do not think that his involvement was such as to fix him with any responsibility for ensuring the safety of spectators. Some person obviously did make a decision about the placing of safety barriers, because some were installed lower down the hill. It may be suggested that such a person should have given thought to placing a barrier near where the plaintiff was seated. Even if that were so there is no evidence that the second defendant was that person, nor is there anything in the circumstances that would persuade me that the second defendant should be responsible as a joint tortfeasor with that person. 23 Mr McFarlane categorically denied that he (and/or Mr Anderson) did anything about running the 1998 race except that he had sent the letter of application to the Council and dropped off the street closure advertisement at the newspaper office. He said that no one told him to organise the event nor did he take any steps to close the street or notify the emergency services. He said that he had no part in the placement of the barriers on the race day. 24 His Honour made no adverse credit finding regarding Mr McFarlane. Hogan ADCJ was in the best position to assess his evidence and it is inappropriate that this court intervene to re-assess his credit. His Honour's findings make it plain that he accepted Mr McFarlane's explanations as to why he did what he did and his denials that he organised or controlled the 1998 event, either by himself, or with Mr Anderson, or others. 25 In my opinion, it was open to his Honour to find that the plaintiff had not established that Mr McFarlane was in control of or organised the 1998 race. 26 It follows that his Honour was entitled to find a verdict in favour of each of the defendants. 27 I add that his Honour also found that the plaintiff's accident was not foreseeable. This was a finding open to his Honour on the facts although it is noted that there was evidence from a Mr Hunt which could suggest that an accident was foreseeable. 28 This is an unfortunate case in many ways. It involves modest damages. It is plain that someone (or a group) organised and controlled the event and determined where the safety barriers were to be placed around the course. Unfortunately for the plaintiff, with whom I sympathise, he bears an onus of proving on the balance of probabilities that it was one or all of the defendants. He failed to establish that any of the defendants controlled the event on the day. 29 Accordingly, the appeal must be dismissed with costs. 30 ROLFE AJA: I agree with Mason P and Stein JA.

Warren v Revesby Heights Ex-Servicemen's Memorial Club Ltd

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Before

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Judgment (17 paragraphs)

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