A plaintiff was awarded $15.2 million in damages against a local council after sustaining catastrophic spinal injuries as a result of jumping over a fence at cricket training. There were no pedestrian gates at that part of the oval, despite them being present in other locations. The Court found that this was negligent.
In issue
- Whether the Council had breached its occupiers duties by failing to install a pedestrian gate at a point of expected high traffic near the new cricket nets and oval, in circumstances where the Cricket Club had requested a gate.
- Whether the Cricket Club had breached its occupiers’ duties by failing to follow up with the Council regarding its request for the installation of a pedestrian gate, or by failing to direct cricket players to not jump the fence.
- Whether the plaintiff voluntarily assumed the risk of injury or was contributorily negligent by jumping over the fence rather than using an alternative pedestrian gate.
The background
On 15 February 2022, while at cricket training, the plaintiff, a 23-year-old self-employed carpenter, sustained catastrophic spinal injuries and became wheelchair bound as a result of attempting to jump over the boundary fence between an oval and the adjacent cricket nets at Laurimar Recreation Reserve (Reserve) in Dooren, Victoria.
The plaintiff issued proceedings in the County Court of Victoria against Whittlesea City Council (Council) and the Laurimar Cricket Club (Cricket Club), alleging that their negligence caused his injuries.
The Council was the owner and occupier of the Reserve and built the cricket nets in mid-2020.
The Cricket Club had exclusive access to the oval and cricket nets throughout the 2021/22 season. During training sessions, players were required to transit between the oval and the cricket nets.
As the oval did not have a pedestrian gate to access the cricket nets, players had two options; they could walk 41 metres to climb or jump the boundary fence, which was approximately one metre high, or alternatively, they could walk 95 metres to access the nearest pedestrian gate. The evidence adduced at trial estimated that players would jump or climb over the fence around 75% to 95% of the time, rather than walk the extra distance. The evidence also suggested that the nearest pedestrian gate was predominantly utilised by older or injured players.
The parties agreed, if successful, the plaintiff would be entitled to recover $19 million in damages from the Council and/or the Cricket Club.
The decision at trial
Did the Council breach its duty of care?
Her Honour, Justice Gorton, held that Council knew or ought to have known that in the absence of a pedestrian gate, hundreds of people would likely be jumping or climbing over the fence at the location where the plaintiff fell, and that this would continue for each cricket season into the foreseeable future. This aggregate risk of injury was real and not insignificant. This risk could have been obviated with relative ease, and for a modest cost, by installing a pedestrian gate. Notably, the Council installed a pedestrian gate at this location after the incident at the cost of $1,500. Most critically, evidence adduced at trial indicated that Council had not previously turned its mind to whether it should have installed a pedestrian gate at the location during the planning and development stage.
While Her Honour acknowledged that the Council was responsible for many ovals and facilities across the municipality, in this case the Council had installed the cricket nets adjacent to the existing cricket oval. It was therefore reasonable for the Council to expect that players would be routinely moving between the oval and nets such that it was likely that without a pedestrian gate many players would be climbing or jumping over the fence.
Her Honour was satisfied that the Cricket Club had requested the Council install a gate on the oval adjacent to the nets during a meeting sometime in late 2021, and that this request was likely conveyed for ease of access rather than as an explicit safety issue. Her Honour nevertheless considered that, following the Cricket Club’s request, the Council ought to have viewed this as a safety concern and promptly installed a gate given the Council was on notice that players were jumping or climbing over the fence.
Her Honour therefore considered that the Council’s negligent failure to install a gate at the location adjacent to the cricket nets was a cause of the plaintiff’s injuries.
Did the Cricket Club breach its duty of care?
The Cricket Club accepted it was an occupier of the ovals and nets within the meaning of the Wrongs Act 1958 (Vic) (Wrongs Act) and owed the plaintiff a duty to take care, as reasonable in the circumstances, to see that the plaintiff would not be injured by the state of the premises. The plaintiff alleged that the Cricket Club was aware of the risk of injury arising from the players jumping over the fence and failed to follow up its concerns of the risk with the Council, or alternatively, failed to direct its coaches and players not to jump the fence.
Her Honour held that the Cricket Club had discharged its duties by informing the Council that players were climbing and jumping over the fence and requesting that the Council install a gate at the fence near the cricket nets. Her Honour did not consider it necessary for the Cricket Club to explicitly raise the risk as a safety issue, as it was the Council’s responsibility to assess the risks conveyed to it. In the short term, the risk of injury remained relatively small such that it was not unreasonable for the Cricket Club to leave the matter with Council. Further, Her Honour held it was not unreasonable for the Cricket Club to leave the decision of whether to jump or climb over the fence with each individual adult player.
Her Honour therefore did not find the Cricket Club liable for the plaintiff’s injuries.
Was there a voluntary assumption of risk by the plaintiff?
Her Honour held that the plaintiff could not be found to have appreciated the nature and extent of the risk, being that he might become a quadriplegic, and subsequently could not have freely and voluntarily accepted that risk. While the act of traversing the fence rather than using a gate may constitute an 'obvious risk' within the meaning of the Wrongs Act, the risk of suffering a severe injury was not an obvious risk that the Plaintiff was presumed to have been aware of. Accordingly, Her Honour held that the defence of voluntary assumption of risk was not established.
Contributory negligence
Her Honour found that the plaintiff had been contributorily negligent, albeit not by failing to use a gate, given the decision to traverse the fence on a single occasion only gave rise to a small risk of injury, and an even smaller risk of serious injury. Rather, accepting preferred eyewitness evidence, Her Honour held the plaintiff had been contributorily negligent by choosing to run at the fence and vault over it without slowing, which Her Honour determined appreciably increased the risk of the plaintiff falling and hurting himself.
Accordingly, the plaintiff’s damages were reduced by 20% to account for his contributory negligence, and judgment was entered for the plaintiff against the Council for the sum of $15.2 million.
The claim against the Club, including the claim for contribution, was dismissed.
Implications for you
For local councils, this decision affirms that occupiers’ duties under the Wrongs Act require proactive assessments when installing or upgrading sporting infrastructure to consider the foreseeable use of the infrastructure. The decision also reiterates that Courts will place considerable weight on the cost of precautionary measures in an assessment of the negligence calculus. For occupiers of sporting venues, the decision affirms that notification to an infrastructure owner of a risk and request for remediation will ordinarily suffice to discharge its duty where the risk of injury remains small.
This case also serves as a reminder that voluntary assumption of risk is a difficult defence to establish, particularly for catastrophic injuries, which require a plaintiff to have appreciated the extent of the injury that could have been suffered in the circumstances.
