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criminal conduct of a third party: Modbury Triangle Shopping alleged assault.
Centre Pty Ltd v Anzil (2000) 205 CLR 254. The insureds argued that calling a foul is an exercise in
On the second point, the referee was a 19 year old male who judgment and discretion. Furthermore, the Plaintiff would need
had only been working at the centre for a few months prior to the to establish that the calling of a foul would have prevented the
incident. The Plaintiff alleged that the referee was inexperienced, melee from occurring. Indeed the insureds argued, if the other
lacked proper training and should have done more to prevent team players were as aggressive as the Plaintiff asserted, the
the melee such as calling a foul. He also alleged that the insureds Plaintiff would need to convince the Court that they would not
were vicariously liable for the acts and omissions of the referee have simply ignored the referee’s call and kept playing.
because he was an employee of the centre, which the insureds During the hearing, the Plaintiff agreed to discontinue the
denied. claim on the basis that he and Sportscover’s insureds met their
Irrespective of whether the Court may have found that the own costs.
referee was an employee, the insureds argued that the Plaintiff It is an unfortunate case as there is no place in sport for
bore the onus of proving causation under section 5D of the Civil violence of the type that allegedly occurred. However, the facts
Liability Act 2002. Under this section, the Plaintiff had to prove appear to suggest that criminal action against the other team
“but for” the alleged failure of the referee the incident would not players rather than civil action against the centre should have
have occurred. been pursued in this case.
The Plaintiff alleged that the referee was inexperienced and The result was a good outcome for the centre, which
should have done more but the question arises as to when he demonstrates to real value of having insurers who understand
should have done more. The Plaintiff suggested that the referee the nature of the sports industry and can make the judgement of
should have called an earlier foul which may have prevented the when it is right to defend a case.

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