HADLAND v COUNCIL OF THE CITY OF BLACKTOWN [1997] NSWCA 133

HADLAND v COUNCIL OF THE CITY OF BLACKTOWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA, CLARKE and GROVE AJJA 14-15 April 1997, 21 May 1997 [1997] NSWCA 133

NEGLIGENCE — volenti non fit injuria — voluntary assumption of risk — cricketer injured while batting on defective wicket owned by local council — whether appellant voluntarily accepted risk of injury

NEGLIGENCE — volenti non fit injuria — voluntary assumption of risk — amateur cricket competition

The appellant was an amateur cricketer playing in a district competition on a cricket pitch owned by the respondent. An area of the wicket had been repaired with a patch which had an irregular surface, causing balls landing on the patch to behave abnormally. While batting, the appellant was injured when a ball landing on the patch rose steeply and struck him on the nose. The trial judge found that, although the respondent had been negligent, the appellant's claim could not succeed as the defence of volenti non fit injuria had been established. On appeal,

HELD, allowing the appeal:

1. Even if it could be said that the appellant agreed to accept the risk of injury, he was under 'moral pressure' to play and could not be said to have voluntarily accepted that risk.

2. (per Clarke AJA) For a defence of volenti non fit injuria to succeed, a defendant must show that the plaintiff knew of and fully appreciated the risk of injury created by the defendant's negligence, and voluntarily agreed to accept the risk of injury and all its consequences (thereby absolving the defendant of responsibility). Although the appellant in these circumstances had sufficient knowledge and appreciation of the risk of injury, his awareness that the rest of his team wished to play and his belief that the match may have been forfeited if he declined to play meant that it could not be inferred that he had agreed to accept the risk of injury and its consequences.