Occupiers' Liability Act 1985 s 5

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 62 ALR 53

Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520

Calin v Greater Union Organisation [1991] HCA 23; (1991) 173 CLR 33

Caparo Industries PLC v Dickman [1990] UKHL 2; [1990] 2 AC 605

Devries v Australian National Railways Commission (1993) CLR 472

Hyde v Agar & Ors v The Australian Rugby Football Union Ltd (1998) 45 NSWLR 487

Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23

Kliese v Pelling, unreported; SCt of Qld; 4 June 1998

Perre v Apand [1999] HCA 36; (1999) 164 ALR 606

Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

Voulis v Kozary [1975] HCA 44; (1975) 180 CLR 177

Watson v Haines (1987) ATR 80

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 MALCOLM CJ: In my opinion this appeal should be dismissed for the reasons to be published by Murray J with which I agree.

2 PIDGEON J: I agree with the reasons to be published by Murray J. I would for those reasons dismiss the appeal.

3 MURRAY J: This action resulted from an injury sustained by the appellant on 12 March 1996, when he was playing indoor cricket at a court operated by the respondent, called "Striker Belmont". The appellant was batting. He hit a ball which, in some fashion, ricocheted off his bat and struck him in the right eye. In the result, he is now almost totally blind in that eye.

4 He sued for damages in the District Court. The action was tried before French DCJ over five days in October and November 1998. Her Honour gave judgment for the respondent with costs on 24 February 1999. From that judgment the appeal is brought to this Court upon lengthy grounds which need not be set out here, but which challenge various of her Honour's conclusions of fact and assert that she erred in holding that the respondent did not breach its duty of care to the appellant by failing to provide helmets "to protect players from the risk of serious eye injury" or by failing to warn of the risk of serious eye injury arising out of the playing of indoor cricket, and in holding that such a warning was not required because there was no evidence that the respondent knew of the danger of eye injury. It is contended that her Honour failed to consider or give adequate weight to the factors listed in the Occupiers' Liability Act 1985 s 5(4) and there is a ground of appeal which contends that her Honour fell into error in accepting a Mr Lewis as an impartial expert witness .

5 At trial, the plaintiff relied upon a multiplicity of causes of action. They were listed by her Honour as being breach of an implied term of a contract between the two parties, breach of a contract implied by operation of the Trade Practices Act 1974 (Cth) s 74, misleading or deceptive conduct in contravention of s 52 of that Act, unconscionable conduct in respect of the supply of services, negligence generally, and breach of the statutory duty imposed by the Occupiers' Liability Act s 5. A number of these causes of action were either not seriously pursued at trial or were different ways of stating the law so as to give rise to the legal issues which the plaintiff contended arose out of the facts as they were to be proved.

6 On the other hand, perhaps inevitably, the defence also raised a multiplicity of issues, only a few of which need specific attention. Contributory negligence was pleaded in respect of the appellant's shot selection and the way he played the stroke. In par 9, it was pleaded that the appellant's injury "was the result of an inherent risk in the sport of indoor cricket" which had been voluntarily assumed by the appellant so that the duty of care imposed on the respondent under the Occupiers' Liability Act did not apply. In addition, the provisions of s 5(2) of that Act were expressly relied upon.

7 Her Honour's conclusion was that there was no negligence, no breach of the relevant duty of care, so it was unnecessary for her to address either of the above issues. Her Honour did, at one point of her judgment, adopt the terminology used in the defence par 9, saying that, although the terminology had been used in connection with the defence of voluntary assumption of risk, an issue arose in respect of the appellant's contention that a warning was required, whether the risk of eye injury was a risk inherent in the game. As to that her Honour noted that the appellant's contention was that in fact the risk of serious eye injury was not obvious to all and accepted by all participants in the game. In that case it might be argued that a warning of the danger was required. Again, there is no indication that her Honour was confused about the issues with which she was to deal. She simply employed the terminology of an inherent risk obvious to all players in considering the contention of a failure to warn of the danger of serious eye injury.

8 On the other hand, it was made clear in her Honour's well-constructed judgment what she thought of these issues. She expressly found that "there was no element of negligence by the [appellant] in the manner in which he played the shot that resulted in the accident." As to the question of voluntary assumption of risk, her Honour was not satisfied that on either of the two occasions, when the appellant had visited the court, the second being the day of the accident a sign advising that "players play at own risk" was affixed to the netting of the court in its usual position, and she accepted the evidence that what she described as "the more expansive exclusion clause" contained in the team nomination form had not been brought to the appellant's attention.

9 Her Honour cited the leading High Court authority on the voluntary assumption of risk in connection with the playing of sport or pastimes of that kind, Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383, where at 385 Barwick CJ said:

"By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connexion, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist."

10 Bearing in mind that she was discussing the allegation of breach of the duty of care by the failure to warn of the risk of eye injury, her Honour nonetheless concluded that there was an obvious risk inherent in the game that the players in the confined space of an indoor cricket court, given the nature of the ball and the speed with which it was struck and thrown, would at any stage be hit in the body or the head by the ball during the course of play. Her Honour thought that the risk of being struck was "quite high" and that such a blow may result in injury was also obvious.

11 Further, her Honour thought that the appellant himself appreciated the risk, and if that was right it did not matter in respect of the suggestion that a warning of the risk of eye injury was required to discharge the duty of care whether there was an obvious risk of such injury inherent in the playing of the game. Her Honour said of the appellant:

"I am satisfied on the basis of his evidence and in the light of his comments in relation to the risks in playing outdoor cricket that the [appellant] was well aware that when he played indoor cricket he ran the risk of being hit by the ball, whether that was in the body or in the head."

12 These conclusions of fact by her Honour were clearly open to her on the evidence. In those circumstances, there was ample support for her conclusion that the respondent did not breach its duty of care by failing to warn of the risk of eye injury generally inherent in the game. As her Honour put it, citing Kirby J in Romeo v Conservation Commission of the NT (1998) 192 CLR 431 at 478:

"Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just."

Her Honour compared that proposition in this part of her judgment with the approach to the need for a warning of danger adopted by the High Court in Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423. It is sufficient for present purposes that I say that upon the evidence in this case upon which her Honour relied I am unable to detect any error in the conclusion to which her Honour came on the question of the need for a warning of the danger of eye injury if the defendant were to discharge its duty of care owed to the appellant.

13 The other and, I think, the principal issue of fact which the case raised and which her Honour addressed in detail was the question whether the risk of injury by being struck in the eye with a ball could or should have been obviated by the provision of a protective helmet. There was much evidence directed to this question. Her Honour accepted that if suitable protective equipment had been available, which it was not, the appellant would have worn it. As I have already said, her Honour accepted the evidence which established that in squash and indoor cricket there is a substantial risk of serious eye injury, but the only suggestion which any expert witness could offer to achieve the necessary protection for the eye was not the wearing of goggles of the kind provided to squash players but outdoor cricket helmets with full-face metal grilles. No such helmet specifically designed for indoor cricket was available, but her Honour concluded that if the ordinary cricket helmet was suitable, no question of cost or the need for maintenance of the helmet would preclude their being made available.

14 Her Honour accepted that such helmets have only rarely been seen worn by players of indoor cricket. Among the witnesses upon whose evidence her Honour relied was the Mr Lewis referred to in the ground of appeal, who himself, as her Honour noted, was an owner and operator of an indoor sports centre, Vice-President of the Australian Indoor Cricket Federation, the regulating body for the playing of indoor cricket, and, in his capacity as an owner of an indoor sports centre, a director of the WA Indoor Cricket Federation, a group comprised of the overwhelming majority of the owners and operators of such centres. It is clear that her Honour accepted this witness as having considerable knowledge of and expertise in the game of indoor cricket, and in my opinion she was perfectly entitled to do so and to rely upon his opinion. She did not overlook any of his associations with the owners and operators of indoor cricket courts, but she nonetheless accepted his evidence.

15 Much of that evidence was evidence, not of opinion, but of primary fact. Her Honour noted that the existing rules of the game and an earlier version of the rules applicable at the time of the accident permitted the wearing of protective equipment generally, for particular medical reasons. The current rule left the decision as to what was permitted, including the wearing of "sporting helmets", "face guards" or "safety glasses", to the tournament organiser or duty manager of the centre. The point her Honour was making was that the wearing of a helmet was clearly not regarded as part of the usual playing equipment and the decision to permit it was to be made having regard to the need of the particular player to wear it, balanced against the risk which that posed to other players. Her Honour noted that Mr Lewis' opinion was that no helmet suitable to protect the players of indoor cricket had been devised.

16 Her final conclusion on this issue was that the provision of such a helmet as standard equipment was not a reasonable requirement in all the circumstances, including having regard to the rules of the game and the fact that the wearing of such helmets was a rarity. Her Honour said:

"The only form of protection that would be sufficient on the basis of the medical evidence is a helmet rather like an outdoor cricket helmet. The helmets now available in Australia are not ideal because of the presence of the hard visor and the protrusions on the outside of the helmet itself. The game of indoor cricket is played in a small area with a high risk of collision between players. While the injuries sustained in a collision may not generally be as serious as an eye injury the frequency is certainly likely to be much higher. Although the evidence establishes that eye injury is most common in games of indoor cricket and squash, compared to other sports it is still not a high risk in terms of frequency of occurrence in relation to the number of persons involved in the sport in Australia."

Again, in my opinion, no error is demonstrated in her Honour's approach to and resolution of this issue of fact, and in the event of the conclusions to which her Honour came in respect of the issue of the provision of a warning and the provision of a protective helmet, the appellant's claim could not succeed, whether it was treated as one sounding in negligence or in breach of statutory duty.

17 As to that, her Honour did not confine her deliberations to one cause of action or the other. She accepted the appellant's submission that the claim in negligence might be wider than the claim for breach of statutory duty and dealt with both, although I think in truth there is nothing in this suggestion.

18 Under the Occupiers' Liability Act 1985 s 4(1), the duty of care imposed upon the occupier of premises by s 5 of the Act has effect in place of the common law rules for the purpose of determining the care which an occupier of premises, by reason of the occupation or control of the premises, is required to show in respect of the danger to an entrant "due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible." The respondent was undoubtedly in that position with respect to the commercial enterprise which involved the playing of games of indoor cricket on its premises.

19 In that event, by s 5(1), the general duty of care imposed was such "as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger." Section 5(4) sets out various factors which are relevant, not to the content of the duty of care, but to its discharge. It is clear, I think, that in this case her Honour did have regard to those matters in considering whether there had been any breach of the statutory duty of care, as she did in respect of the discharge of the duty imposed by common law. Her Honour found the existence of the duty of care and, in my opinion rightly, observed that it mattered not whether the duty arose at common law or by statute. As her Honour put it, the real question was the extent and scope of the duty for the purpose of determining whether any breach had occurred.

20 For completeness I should mention that it seems to me that by s 5(2) of the Occupiers' Liability Act, the defence of voluntary assumption of risk, as it is known to the law, to negate the existence of a duty of care, is preserved in circumstances not dissimilar from the content of the defence at common law. Finally, under s 10 of the Act, the issue of contributory negligence remains relevant, by the provision that the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 applies to claims under the Occupiers' Liability Act.

21 Her Honour focused attention on the question of the scope of the duty and the question of its breach. She concluded that in the particular circumstances of the case there was no obligation reasonably to be imposed to provide a protective helmet or to warn the appellant of the risk of eye injury. In my opinion, she is not demonstrated to have erred in either respect and I would dismiss the appeal.