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. The plaintiff's case was pleaded on various grounds but 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 Department, that is the State, was vicariously responsible for that negligence. The plaintiff was awarded $188,554 damages. The State has appealed, its challenges being limited to questions of liability. The trial, which took place in 1993, was hard fought with 10 witnesses giving oral evidence. Two of the witnesses, Messrs Ryan and Stone, who were highly qualified rugby league referees, gave expert evidence. The other witnesses gave evidence about the events at the football match in 1985, and the short interval between the plaintiff receiving and running with the ball and his tackle. 2 UNREPORTED JUDGMENTS The ultimate question of fact, as the Judge recognised, was 'whether a prompt response by the referee to the commencement of the lifting of the plaintiff's body would as a matter of probability have avoided his injury'. The Judge made findings on the credibility and reliability of the various eye-witnesses and also considered some statements tendered under s 14B of the Evidence Act. His reasons for answering the ultimate question in favour of the plaintiff were: The dynamics of the tackle to my mind support the account given by a number of the witnesses that there was an appreciable time span between the arrest of the plaintiffs forward progress and the lifting of his body into the air. Accepting the proposition, as Ido, that he was in effect stopped in his tracks and forced backwards, such movements simply could not have been part of one "flowing motion". I am satisfied from the evidence of Mr Ryan and Mr Stone that a competent and experienced referee would have intervened and such intervention more probably than not would have averted the plaintiff's injury. I find as a fact that the plaintiff was lifted off the ground and propelled backwards so that his neck and shoulder came into contact with the ground before the rest of his body. The first submission of Mr Maconachie, who appeared for the State, was that it was not open to his Honour, on the evidence, to find that there was an appreciable time interval between the arrest of the plaintiff's forward progress and the lifting of his body into the air. There was a subsidiary submission that the finding was not, in fact, supported by 'a number of the witnesses'. Mr Maconachie acknowledged that the finding was supported by the evidence of Mr Sharp, a fellow member of the Eden team. However, there was substantial evidence from other witnesses to support the finding and in particular from Garry Stevenson, a member of the Bega High School team who was watching the match, and who was not a friend of the plaintiff. Referring to this witness the Judge said: He described Mr Afflick's tackle in similar terms to the account given by the earlier witnesses except that he recollected another Moruya player joining in the tackle and picking up the plaintiff's legs following which the plaintiff was dropped head first on the ground. He indicated more or less a vertical position of the plaintiff to the ground. He thought that the plaintiff was held for a few seconds before the intervention of the other player. He said amongst other things "You could always remember a tackle like that". His clear impression was that there was a definite time lapse between the stopping of the plaintiff and his being deposited on the ground ... I accept him as credible although I think his recollection is defective as to the part played by the other tackler (Jason Byrne) and the angle of the plaintiff's body to the ground. These findings are indeed supported by the evidence of this witness (AB 86, 87, 89 and 95). He said that the first tackler stopped the plaintiff from going 'anywhere' and then a second defender intervened and the plaintiff was picked up and dumped (86, 87). The first player 'stopped' the plaintiff, they were 'wrestling with each other a bit to get him on the ground, that is when the second defender came in' (95). He said it was a spear tackle. He couldn't tell how long the complete tackle took 'a few seconds you could say'. Mr Maconachie submitted that the Judge had rejected the involvement of a second Moruya player but this was not the case. The Judge said that there was no issue in the case that the tackle was effected 'primarily if not completely by Mark Afflick of the Moruya side', but he later referred to 'the other tackler'. This is not surprising because Jason Byrne, a Moruya player, gave evidence that he had a part, although a minor one, in the tackle (203). The Judge said that his evidence URJ STATE OF NEW SOUTH WALES v ROBERT SMITH (Handley JA) 3 "was consistent with the accounts of other witnesses who had the impression that more than one person was involved in the tackle'. Mr Byrne's evidence also supports the finding that there was an appreciable time span between the arrest of the plaintiff's forward progress and the lifting of his body in the air. As the Judge noted, Mr Byrne said that Mr Afflick tried to force the plaintiff backwards and failed, and then lifted him so that both legs were off the ground. Although the Judge formed an unfavourable view of Mr Ballantyne, the Moruya coach, he noted that this witness agreed that Mr Afflick did lift the plaintiff off the ground, and had also said that Mr Afflick's tackle with his shoulder, undertaken with bent legs, made him 'partly into a shock absorber' (173). The referee himself said that the tackler 'picked (the plaintiff) up from the legs, the upper legs, and deposited him on the ground' (214). He continued to accept the description 'picked up' (224), although he also described the tackle as 'almost an unfolding sort of action' (224) which lasted less than a second (228). In my judgment therefore there was ample evidence which supports these particular findings, including the finding that there was an appreciable time span between the arrest of the plaintiff's forward progress and the commencement of the lifting of his body. The findings clearly depended on the Judge's view of the credibility and reliability of the witnesses, and they cannot be disturbed by this Court. Mr Maconachie's second submission was that the trial Judge erred in finding that anything done or not done by the referee would more probably than not have averted the plaintiff's injury. This submission depended substantially on his earlier submission that there was not sufficient time or opportunity for the referee to intervene. His Honour having found, as he was entitled to, that there was an appreciable time between the plaintiff being stopped by Mr Afflick, and the commencement of the lift, the necessary foundation for the further finding that the referee could and should haveintervened had been established. Mr Ryan, the plaintiff's expert, said that his practice was to intervene in the course of a tackle whether lawful or otherwise if, in his opinion, there was danger to the player being tackled. His practice was to intervene at once if he saw the tackled player being lifted from the ground. The lifting was the danger signal, and he invariably intervened. He gave the following evidence in cross-examination: Q. ... Do I understand Mr Ryan basically what you are saying is this that what really sets the alarm bells going in your mind is that you can see there's a stopping of the player and then a lifting? As momentarily as it may be but yes you can see it. And from the minute you start to see that there's those two motions your brain clicks on that you must start to do something? Correct. And you then try to move as fast as you are able to, in some fashion, intervene? Or OP Mr Stone, the defendant's expert, said that if the player in possession is stopped and he is lifted from the ground and the only thing that could happen is danger to the player, a referee attempts to circumvent that by calling 'held' or 'put him down' or whatever needs to be said. See also at 259-60. In my judgment this evidence, which the trial Judge accepted, and the earlier factual findings, fully supported the ultimate conclusion of the trial Judge that the referee could and should have intervened. 4 UNREPORTED JUDGMENTS Mr Maconachie's final point was that the plaintiff had no cause of action against either the referee or the State because he had accepted the risks involved. In my judgment however there is no basis for finding that a player such as the plaintiff had accepted the risk that a referee will be negligent in his control of the game. In my opinion therefore the appeal fails and should be dismissed with costs. Cole JA. I have read in draft the judgment of Handley JA. Tf, at the trial, the appellant had argued the matter upon the basis that, whether or not the offending tackle constituted one movement, or two movements with an appreciable time between them, having regard to the brief time span involved and the other responsibilities upon the referee, any error of judgment on his part did not constitute negligence, there would have been much to be said for the view that the appellant would have succeeded on liability. However that was not the basis upon which the trial was fought. I understood from Mr Maconachie QC that it was accepted that the trial was conducted on the basis that if the tackle constituted one movement the appellant would succeed, but if it constituted two movements with an appreciable time between them during which the referee could have intervened with the probability that had he done so the injury would not have occurred, the respondent would succeed. The trial judge found the latter circumstances established and Handley JA has set forth the reasons why this Court should not interfere with those findings. It follows that on the basis upon which the trial was conducted, negligence for which the State was responsible was established. On that basis I agree with Handley JA for the reasons which he has given that the appeal should be dismissed with costs. Orders accordingly. Counsel for the appellant: J E Maconachie QC/T H Barrett Solicitors for the appellant: J V Knight: Crown Solicitor Counsel for the respondent: C W McEwen/M J Ward Solicitors for the respondent: Michael Britten: Merimbula