STATE OF NEW SOUTH WALES v ROBERT SMITH [1996] NSWCA 492

STATE OF NEW SOUTH WALES v ROBERT SMITH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER, HANDLEY and COLE JJA 24 September, 3 October 1996

[1996] NSWCA 492

NEGLIGENCE — LIABILITY — VICARIOUS RESPONSIBILITY OF STATE FOR TEACHER REFEREE — SUFFICIENCY OF EVIDENCE THAT REFEREE HAD OPPORTUNITY TO INTERVENE — ACCEPTANCE OF RISK.

The respondent was seriously injured when tackled while playing in a rugby league match for his school at an inter-school sports event. The trial Judge found that the referee, a teacher employed by the Department of Education, acting in the course of his employment, had been negligent and that the State was vicariously responsible for that negligence. The respondent was awarded $188,554 damages. Upon the basis of expert evidence and findings on the credibility and reliability of witnesses, the trial Judge held that the tackler stopped the plaintiff and then lifted him so that he was forced to the ground head first. The Judge found negligence in the referee's failure to act promptly to stop the lifting. The appellant submitted that there was no evidence to support the proposition that there was a time interval between the two motions. It was further submitted that the trial Judge erred in finding that anything done by the referee would more probably than not have averted the injury and in failing to hold that the respondent had no cause of action as he had accepted the risks involved.

HELD, dismissing the appeal: (1) There was sufficient evidence before the Court to sustain the trial Judge's findings; (2) On the basis of expert evidence there was sufficient time for the referee to have intervened; (3) The respondent had not accepted the risk that the referee would be negligent in his control of the game.

Meagher JA. I agree with Handley JA.

Handley JA. On the morning of 18 September 1985 between 10 and 11 a rugby league match was played at the Bega Recreation Ground between teams from Eden and Moruya High Schools. The match was played as part of a series of inter-school sports events being conducted that day at that ground. The respondent, then aged 15 and tall and well built for his age, was a forward playing in the Eden team. His team had possession and the ball was played close to the 22 metre line. The plaintiff received the ball and ran up-field. He made some progress before being heavily tackled, principally, on the Judge's findings, by Kevin Afflick, possibly assisted by Jason Byrne. The plaintiff was seriously injured in the tackle, and he later sued the State to recover damages.