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18
Insight
FOCUS on Risk Management
Part II
Letting players keep their eyes on the ball
(instead of the pitch)
With the change of season, clubs and players will be looking
back on the past football season while others start preparing for
the cricket season. Tony Greig will be probing the Melbourne
Cricket Ground’s deck with his car keys highlighting the perils for
tailenders in the fourth innings. However, there are a multitude
of other perils on sporting arenas to be mindful of in good risk
management.
In
Bartels v Bankstown City Council
the New South Wales
Court of Appeal noted that soccer was fast moving and highly
competitive, requiring split second decisions and was not a game
which gave players any great opportunity to watch their footing
as they move about the field. These comments are applicable
to almost any field sport and it is useful to have an overview of
the approaches adopted by the courts and identify strategies that
ground owners and clubs can adopt to allow
players to keep their eyes on the game
rather than the playing surface.
Can a player consent to the
risk of injury arising from the
state of the pitch?
In
Hadland v the Council of the City of
Blacktown
the New South Wales Court
of Appeal considered whether an amateur
cricketer who suffered an injury to his nose while playing
in a district competition had voluntarily accepted the risk of
injury arising from playing on the pitch.
The Court was satisfied that the Council had been negligent
by failing to respond to complaints regarding the state of the
pitch from the plaintiff’s cricket club.
The Court rejected the Council’s argument that the plaintiff
had voluntarily accepted the risk of injury. Although the
plaintiff had sufficient knowledge and appreciation of the
risk of injury, as captain of the team, he was aware that
the rest of the team wished to play and was concerned that
the match may have been forfeited if he declined to play.
Consequently, the plaintiff was under ‘moral pressure’ to
play and this could not be regarded as a voluntary acceptance of
risk. The decision illustrates the difficulty in raising a defence of
voluntary acceptance of risk, particularly in team sports where an
individual’s desire to ensure their own safety might be overborne
by a desire not to let down teammates.
The decision in
Hadland
involved an abnormal risk arising from
a defect in a pitch and can be contrasted with the High Court’s
[1999] NSWCA 129
[1997] NSWCA 133.
decision in
Woods v Multisport Holdings Pty Ltd
which relates to
the inherent risks of a particular sport
.
In
Woods
, the plaintiff suffered a serious eye injury while playing
indoor cricket. He alleged that the venue failed to provide any
signs warning of the risk of serious eye injury or to provide him
with proper eye protection while playing indoor cricket.
The High Court upheld the trial judge’s findings that it was not
reasonable to expect the venue to provide protective equipment
when the rules of the sport did not provide for the use of such
equipment, no protective equipment had been designed for the
game and the use of protective helmets may have created its own
risk of injury in the event of collisions between players. Similarly,
the High Court found that the failure to provide a warning was not
negligent as the risk of a player being struck in the face by a ball
was so obvious a warning was not reasonably required.
Proper systems of inspection are the starting
point for protection
The
Bartels
case and
Abazovic v Australian Capital Territory
both involved claims by players who fell into depressions on the
playing field. In both cases, the relevant local authority was able to
provide evidence of formal systems of inspection that satisfied its
duty to take reasonable care to ensure the safety of players using
the fields. In particular, in
Bartels
, the
New South Wales Court of Appeal
noted that, in view of the financial
constraints upon local authorities, it
would not be reasonable to expect
local authorities to keep all playing
surfaces to the quality of the Sydney
Football Stadium, Sydney Cricket
Ground or an Olympic stadium. The
Court observed that the best that
the local authority could do was to
implement a system which was likely
to result in holes being found and the
fact that some holes might escape
attention did not of itself mean the
system had not been followed or was
deficient.
In
Bartels
, the Court of Appeal also
considered whether the clubs involved
in the match were liable but found that
the clubs had acted reasonably in relying
upon the Council’s system of inspection
and the pre–match inspections carried
out by referees.
However, as seen in
Williams v Latrobe
Council
, the presence of a system of
inspections is not a silver bullet which
will provide local authorities or clubs
with a guaranteed defence against liability claims arising from
the state of the pitch. In
Williams
, the plaintiff suffered a left
ankle injury when his left foot landed on a cover placed over an
irrigation tap pit which was not set flush with the surface of the
surrounding ground. The local authority which leased the ground
required the club to complete a facility inspection sheet at least 24
hours before the ground was used and the Northern Tasmanian
[2002] HCA 9.
[2003] ACTSC 15
[2007] TASSC 2.
In this, our second article on risk management, James McIntyre, Senior Associate at DLA
Phillips Fox in Brisbane, Australia, follows up on the last edition of Touchline by reviewing
Australian case law for decisions relating to playing surfaces. The lessons learned should
be heeded by all sports clubs and associations around the world.
Soccer: “...not a game which [gives]
players any great opportunity to
watch their footing...”