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. Handley JA In this appeal I have had the benefit of reading the reasons for judgment of Clarke AJA in draft form. I agree with the orders he has proposed and, subject to one matter, I agree with his reasons. As at present advised, I do not consider that in a case such as this the defence of voluntary assumption of risk requires proof of a tacit bargain between the parties that the defendant should be absolved from any responsibility for injury to the plaintiff. The position will be otherwise where the parties are in a contractual relationship because the defendant must then exclude an implied term in the contract. The plaintiff, as a member of the Club, may possibly have been a party, with all other members, to the contract with the Council for the hire of the ground, but this was not proved and the case must be decided on the basis that the plaintiff was a gratuitous entrant on Popondetta Park where the cricket match was played. Where the relationship between the parties is gratuitous, the existing authority in this Court appears to establish that the defence is made out "if the plaintiff, with sufficient knowledge, voluntarily accepts the risk of physical injury". See Sara v Government Insurance Office (1969) 89 WN Ptl (NSW) 203 at 207 per Walsh JA, speaking with the concurrence of Jacobs and Holmes JJA. 2 UNREPORTED JUDGMENTS The appellant had sufficient knowledge of the risk, but did not act voluntarily. In this respect, the case is covered by the decision of the majority in Nowak v Waverley Municipal Council (1984) Aust Torts Rep 67801. In that case the plaintiff played competition rugby league on a dangerous oval, but did so under pressure. The team had met to discuss the state of the oval which was known to be dangerous, but had agreed to play rather than forfeit the match. Samuels JA, with the concurrence of Reynolds JA, said at 67803: "Coercion may mean more than physical or moral compulsion which the victim is powerless to resist. In the present case the appellant was subject to what I would regard as considerable moral pressure... there is no evidence that the Council was aware that the match would be forfeited if the appellant's team did not play, although it knew that the ground was to be used for competition matches. I do not consider, however, that the Council's ignorance of the threatened sanction is in point...". Since the defence of voluntary assumption of risk fails on the facts in any event, it is not necessary for me to express a final view on the wider question. The appeal should be allowed, and orders made as proposed by Clarke AJA. Clarke AJA Stephen James Hadland (the appellant) has always been a keen sportsman. Until 1985 his main interest had been in football but in that year he joined the St Marys RSL Cricket Club (the Club) and started playing cricket again after a break of many years. In the seasons following he played in the higher graded of two senior teams in the Club which competed in the Blacktown District Cricket Association. His team played on a "home and away" system, the home ground being Popondetta Park at Mount Druitt. This park was in fact a sporting complex of which the cricket ground formed part. The whole complex was owned by the Council of the City of Blacktown (the respondent) which permitted the Club to play matches on the ground on payment of a fee. The cricket pitch was made of artificial or synthetic grass and, as a result, the bounce of the ball was more predictable than on some turf pitches. During the 1990/91 cricket season the appellant noticed that a section of the pitch about 2 yards from the popping crease (at which the batsman takes his stance) and in line with a right-handed batsman's off stump was devoid of "grass" and appeared to have been burned. At the commencement of the next season the appellant observed that this section of the pitch had been removed and a patch had been inserted in its place. The patch was different in colour to the area surrounding it and appeared to be new. The appellant also noticed that the edges of the patch had a hard, raised lip or edge about a quarter of an inch high consisting of a glue-like substance. Early in that season, that is the 1991/92 season, the appellant's team was playing the Blue Cattle Dogs Club. While the appellant was fielding in that match he saw a delivery from one of the medium-paced bowlers in his team land on this patch, rise steeply and hit the batsman on the head near the left temple. The batsman was injured, left the field, but later returned and played on. This incident obviously caused the appellant some concern because following the match he bought himself a protective helmet to wear when batting. He had never previously worn such a helmet. Over the next few matches played at Popondetta Park the appellant observed a number of instances in which a ball landing on the patch behaved abnormally. The ball either rose steeply, skidded through low, or deviated sideways. This behaviour was, in the appellant's experience, quite abnormal. URJ HADLAND v COUNCIL OF THE CITY OF BLACKTOWN (Clarke AJA) 3 It is apparent that other members of the Club were concerned about the patch and the dangers which it created, for on 14 October 1991 the Secretary of the Club wrote to the Secretary of the Popondetta Park Committee, which was constituted by the respondent. In that letter the Secretary said, relevantly: On behalf of the St Marys RSL Cricket Club, I am writing to express our concern at the condition of the cricket pitch at Popondetta Park. An area of super-turf has been replaced and the resulting patch has led to variable bounce of the ball off a good length. In our opinion this represents a dangerous situation for all batsmen. We draw this matter to your attention after two (2) batsmen from this Club have been struck on the head from sharp rising balls which have pitched on this area of the wicket. We trust that necessary action can be taken to make satisfactory repairs to this pitch as soon as possible. On receipt of that letter the Secretary sent a copy to the respondent, observing that the pitch was dangerous and asking for action to be taken. No repairs were carried out prior to 21 December 1991 as a letter from the Park Committee to the Council, referring to an inspection on 14 December 1991, makes clear. Notwithstanding the Club's knowledge that there was a dangerous patch on the pitch which had not been repaired by the respondent, games continued to be played at Popondetta Park. The appellant, for instance, said he possibly played about eight games there in the latter part of 1991. On 21 December 1991 the appellant, who is normally vice-captain of the team, was captaining his team against the Blacktown Demons at Popondetta Park. It was a one-day match of 40 overs each. The appellant's team were sent in to bat and the appellant opened the batting. The opening bowler was described by the appellant as fast for a bowler in that grade of competition. The appellant faced the first ball. It hit the patch, rose steeply, and penetrated the grille on the appellant's helmet and struck him on the nose. His injuries were quite serious and subsequently he sued the respondent. His case was heard by Twigg DCJ who found against him. Notwithstanding, the learned judge assessed the damages in case there was a successful appeal. He said that if he had awarded a verdict in the appellant's favour he would have awarded him $25,000. In his Notice of Appeal the appellant raised grounds both going to the substance and the detail of the judgment and has sought an order that this Court substitute a verdict in his favour. The respondent resists the appeal. Alternatively it submits that if any grounds are made out there should be a new trial of the issue of liability. Both parties are however agreed that if this Court does enter a verdict for the plaintiff it should be for the amount assessed by the trial judge plus pre-trial interest, with which the judge did not concern himself. In the event therefore that there is to be a verdict for the appellant it should be in the sum of $26,125. In a section of his reasons for judgment entitled "The Evidence" his Honour made a number of findings which are presently of importance. He found that the appellant was fully aware on 21 December 1991 that a ball landing anywhere on the patch was likely to rise at a pace and height likely to cause him injury. His Honour found that the appellant knew of the risk of being hit, having seen what occurred earlier in the season. He found that the appellant took no steps to avoid batting, by seeking the postponement of the match or seeking the approval of the umpire or the Secretary of the Association either to cancel or postpone the match. The appellant was also aware, according to his Honour's findings, of the complaints made about the patch and that it constituted a risk of injury to himself 4 UNREPORTED JUDGMENTS and his players. His Honour observed that the appellant did not shrink from batting as an opening batsman in the circumstances and there should therefore be a verdict for the respondent. Although his Honour did not advert to the content of the duty owed by the respondent to the appellant, it has been accepted in this Court that, leaving to one side the issue concerning volenti non fit injuria, the respondent owed to the appellant a positive duty to make the playing field and pitch as fit and safe a place for cricket as reasonable care and skill could make it (see Voli v Inglewood Shire Council (1962-1963) 110 CLR 74 at 91-94 and Nowak v Waverley Municipal Council and Others (1984) Aust Torts Reports 80-200 at 67,803-67,804) and that the respondent was in breach of that duty. Indeed, on the evidence in the case, any other finding would have been perverse. The method of repair of the pitch carried out by the respondent created a significant danger. The existence of this danger was brought to the attention of the respondent which, nevertheless, did nothing to repair the situation in the ensuing two months. The parties were also in agreement that the basis of his Honour's verdict was a positive finding that the appellant had voluntarily assumed the risk of injury and was not entitled to a verdict. This agreement is of some importance because, although his Honour expressly made a finding that the appellant was aware of the danger and implicitly made a finding that he appreciated the extent of the danger, his Honour did not make any observations upon the issue of voluntariness. The law of negligence is based on notions of reasonableness. A defendant who has done something, or omitted to do something, which a reasonably prudent person would not do, or omit to do, in all the circumstances will, in general, be found liable to a plaintiff injured in consequence of the defendant's act or omission. Again, a plaintiff who has failed to take reasonable care for his or her own safety will, exceptional circumstances aside, be found guilty of contributory negligence. In these circumstances one may be forgiven for thinking that there is no place in a negligence claim for defences which arise notwithstanding that the only proper conclusion is that the plaintiff acted reasonably in all the circumstances. I say this because it seems to me to be contrary to the philosophy underlying the law of negligence to hold that an action by a person who is not negligent may be lost for reasons which import no carelessness or lack of reasonableness on his or her part. Nevertheless, the defence of volenti non fit injuria, which, I repeat, the parties have stated was the basis of his Honour's decision, is so well entrenched in the law that this Court is bound to accept that if the trial judge is correct the appeal must fail even though there was no finding, nor any evidence, to the effect that the appellant was negligent. This defence, usually described in Latin, is spoken of in English as the voluntary assumption of the risk of injury. Three quite separate elements must be established before the defence, which in my experience has rarely arisen, much less been successful, will succeed. In short, the defendant must establish that the plaintiff:- a) knew of the danger; b) fully appreciated the risk of injury created by the danger - a subjective question; and c) voluntarily agreed to accept that risk - that is, to absolve the defendant from any responsibility for injury resulting from the danger which the plaintiff may suffer. URJ HADLAND v COUNCIL OF THE CITY OF BLACKTOWN (Clarke AJA) 5 The first two elements involve relatively simple ideas and, obviously enough, give rise to questions of fact as to the plaintiffs actual knowledge and appreciation. The third element is not so clear and there are different views on its ambit. Those differences may best be explained by citing a passage from the judgment of Walsh JA in Sara v Government Insurance Officer of New South Wales (1968) 89 WN (NSW) (Pt1) 203 (at 205-6): I do not think I should engage upon a detailed discussion of these citations, but perhaps it will make more clear counsel's point if I refer to a passage from Glanville Williams, Joint Torts and Contributory Negligence (1950), p308: 'It is submitted that the key to an understanding of the true scope of the volens maxim lies in drawing a distinction between what may be called physical and legal risk. Physical risk is the risk of damage in fact; legal risk is the risk of damage in fact for which there will be no redress in law." After giving an example to illustrate that he said: "To put this in general terms, the defence of volens does not apply where as a result of a mental process the plaintiff decides to take a chance but there is nothing in his conduct to show a waiver of the right of action communicated to the other party. To constitute a defence, there must have been an express or implied bargain between the parties whereby the plaintiff gave up his right of action for negligence." There are statements to be found in authorities concerning the maxim of volenti non fit injuria in relation to claims by servants against their masters which do seem clearly enough to indicate that in deciding whether the maxim applies it is proper to consider whether the facts give rise to an inference that the servant not only knew the risk and went ahead with the work, but that the circumstances were such that it could be said by way of inference or implication that a bargain was made by which he agreed to hold the employer not liable for any injury that might occur. If, on the other hand, whilst knowing the risk and going ahead with the work, the proper conclusion was that he did this because of constraint imposed upon him by his employer and in the circumstances that the proper inference would be that he intended to hold the employer liable, then the doctrine could have no application. There are to be found some statements expressed in general terms which take up the notion of the situation needing to be such that, not expressly yet tacitly, it can be said that the parties bargained that the consequence of any injury occurring would fall upon the plaintiff and not on the defendant. Having made those observations Walsh JA went on to say that where the relationship between the parties is that of gratuitous passenger and driver there is no need to go beyond enquiring whether the plaintiff knew of, for instance, the defendant driver's condition and nonetheless voluntarily became a passenger. Walsh JA summarised the position in these words: To put it another way: the cases dealing with this situation and with this relationship speak of the plaintiff accepting the risk in terms which do not suggest that there should be two inquiries; firstly an inquiry whether the plaintiff accepted a risk that the plaintiff might be injured; and secondly, an inquiry whether the plaintiff tacitly agreed that the defendant would not be held liable. (at 206) The wider view is best exemplified by a passage from the judgment of Lord MacDermott LCJ in Kelly Farrans Ltd [1954] NI 41 at 45:- [T]he question raised by a plea of volenti is not whether the injured party consented to run the risk of being hurt, but whether he consented to run that risk at his own expense so that he, and not the party alleged to be negligent, should 6 UNREPORTED JUDGMENTS bear the loss in the event of injury. In other words the consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk. Another aspect of the third element which is capable of creating difficulty is the requirement that the plaintiff voluntarily accept the relevant risk. Unfortunately, given the dearth of authorities on the defence, there has been limited examination of this question. Charlesworth and Percy (Charlesworth and Percy on Negligence, 8th Edition) speaks of three separate situations. They are:- 1. Plaintiff does not see danger 2. Plaintiff sees danger and decides to run the risk 3. Plaintiff sees the danger and exempts defendant from liability (para3-100, para3-101, para3-109). The learned authors conclude that it is only in the third situation that the defence will succeed. In my respectful opinion the correct approach requires that the Court focus on the factual issue whether the plaintiff voluntarily agreed to accept the risk of injury and its consequences. In one sense the issue may be seen to pose two distinct questions. First, whether the acceptance was voluntary and secondly, assuming that the plaintiff's actions were voluntary, and that there was no express acceptance of the risk, whether the inference should be drawn from all the circumstances that the plaintiff accepted the relevant risk, in that he or she agreed to bear the consequences of any injury. No doubt there will be cases where these questions are clearly separate but in other cases it may well be that those factors relevant to the consideration of the voluntariness question bear on both. For instance, as it seems to me, even though the evidence of compulsion, duress or moral pressure may fall short of establishing that the plaintiff's actions were not voluntary, the circumstances may be such that an inference that the plaintiff accepted the risk should not be drawn. In this respect the weight of evidence seems to me to support the proposition, except in the limited class of case with which Walsh JA was dealing in Sara (supra), that for the defence to succeed it is not enough to establish that the plaintiff was aware, and appreciated the extent, of the danger and decided to run the risk. The weight of authority and the observations of text writers seem to me to support the proposition that it is only where the inference is drawn that the plaintiff consented to run the risk at his or her own expense, in the sense that he or she could not sue if injured, that the defence will prevail (Charlesworth and Percy, supra, 3-109; Salmond and Heuston on the Law of Torts, 20th Edition, p487; the Law of Torts, Fleming, 8th Edition, p296-p297). Some writers have contended that it must be possible to infer an agreement between the plaintiff and the defendant, whereby the former assumes the relevant risk, before the defence will stand but it seems to me the better view is that it is necessary only to establish that the plaintiff accepted the risk in the sense that he or she gave away his or her right to sue if injured as a consequence of the danger. A conclusion on this question will invariably depend upon whether that inference is available from the proven material. Thave already explained that the trial judge did not deal in terms with the third element. Counsel for the respondent has submitted that it is implicit in his judgment that he made adverse findings of fact against the appellant and drew the necessary inferences. The difficulty with that submission is that, although his Honour was presented with evidence concerning the circumstances in which the appellant played cricket on the day in question, and made rulings on that evidence, he did not advert to that matter in his judgment. This omission is, in my URJ HADLAND v COUNCIL OF THE CITY OF BLACKTOWN (Clarke AJA) 7 opinion, fatal, so that it is necessary for this Court to go to the evidence, which was not the subject of any serious challenge, in order to determine for itself whether the conclusion of the trial judge should stand. The appellant himself made the following statement: On the day that I was injured if I, as captain, had refused to play on the pitch there was a good chance that the team would have forfeited match [sic]. I would not have refused to play unless I had the backing of team members. The patch had been present since the commencement of the season and had been the subject of discussion by all members of the team. On the day that I was injured I understood that every member of the team wanted to play. If I had wished not to play on the pitch I would have had to withdraw from the team for as far as I was aware the rest of the team would simply have played without me. It was not possible to transfer to [sic] match to another field. In oral evidence the appellant explained the difficulties involved in attempting to transfer the game to another ground. He also said that he had not really considered a transfer and thought he had no alterative to play as the rest of his team-mates wished to play. Mr De Mattia, an experienced cricketer, said that in the circumstances confronting the appellant, if his captain and team members wanted him to play on and if the umpire said nothing to the contrary, "you'd go out and play. You wouldn't forfeit the match." Mr Ford, the captain of the opposing team, said that he had inspected the pitch, observed the potential of the patch to create difficulties for batsmen and sent the opposing team in to bat when he won the toss. He also said that notwithstanding the condition of the pitch his team was keen to play. The evidence was, in a sense, all one way. There was an irregularity on the pitch which created a danger. Notwithstanding, the pitch had been regularly used for cricket in the latter part of 1991. On 21 December 1991 both teams were aware of the condition of the pitch and both wanted to play. The appellant In my opinion this evidence supports the following conclusions. The respondent, which had a duty to take reasonable care to ensure that the cricket ground was as safe for the playing of cricket on it as the exercise of reasonable care would make it, failed to comply with that duty. It did so despite its knowledge of the danger and complaints made concerning that danger. In failing to repair the cricket pitch to remove the danger, the respondent placed all cricketers scheduled for games on that ground in the difficult position of having to determine whether to play despite the danger (whether with or without a helmet), to seek a transfer which, on the evidence, appeared to be somewhat difficult, or to decline to play. It may be that the club could have sought a change of venue for those matches scheduled for Popondetta Park until the danger was removed but this did not occur. Team members turned up at the ground each week a match was scheduled there and it is readily apparent that, notwithstanding the risk, all cricketers wished to enjoy their game of cricket each weekend leading to the day of the appellant's injury. On that day the appellant, as captain, was faced with a situation where his team wished to play and he thought that if he had declined to play his team well may forfeit the game. In those circumstances, in my opinion, an inference that the appellant voluntarily agreed to accept the risk of injury and its consequences was not open. This conclusion can be reached in two ways. My own preference is to decide the case upon the basis that the evidentiary material simply does not support the inference that the appellant was agreeing to run the risk of injury. It goes no further than showing that the appellant, and all the other cricketers, 8 UNREPORTED JUDGMENTS elected to play despite their knowledge of the dangerous condition of the pitch in circumstances where any other election would seem to have been out of the question. I would add that the purchase of the helmet, while evidence that the appellant appreciated that there was a risk that he would be struck in the head, does not support the inference that he was prepared to accept the risk and its consequences. Rather it suggests that he would play because he believed that, with a helmet, the risk was minimal. The alternative approach is that even if the correct conclusion be that the appellant agreed to accept the risk he did not do so voluntarily. That is because he was under moral pressure, as that term was explained in Nowak (supra), to play, and his decision could not in law be regarded as voluntary. It follows that the judgment under appeal cannot stand and this Court should substitute a verdict for the appellant in lieu of the one entered by his Honour. I should not leave this case without adverting to one aspect of the decision in Nowak. Mahoney JA, in his dissenting judgment, said (supra, at 67,809) 'there are some circumstances in which a plaintiff would, though knowing and appreciating the danger, yet act reasonably in undertaking it, and in such circumstances. the defendant may remain liable if injury results. This is in my opinion, illustrated by what was said by Lord Reid in A C Billings & Sons Ltd v Riden [1958] AC 240. The contractors were "responsible" for the danger in that they had obstructed the normal approach to a caretaker's house and had left as the alternative approach one which involved danger. A woman visiting the house used the alternative approach notwithstanding that she knew the dangers involved. The contractors were held liable for the injuries which were resulted to her. Lord Reid, after reviewing the authorities, said: "... the question is whether the danger is such that in the circumstances no sensible man would have incurred it, or, in other words, whether the plaintiff exposing himself to the danger was a want of common or ordinary prudence on his part. If it was not then the fact that he voluntarily or knowingly incurred the danger does not entitle the defendant to escape from liability" (at p252-p253) His Lordship's observations were made in the context of a discussion of an occupier's liability and did not involve consideration of the defence presently being discussed. For my part, although I regard the observations as persuasive and as a matter of common sense, I see difficulties in applying this approach directly to the defence of volenti non fit injuria. That is because the relevant authorities emphasise the fact that this particular defence is not concerned with negligence on the part of the plaintiff who may fail because of his or her acceptance of the risk notwithstanding the fact that he or she acted reasonably: Nonetheless it seems to me that the reasonableness, or good sense, of the plaintiff's conduct may have a bearing indirectly on the question whether he or she accepted the risk of injury from the harm of which he or she was aware, in the sense I earlier discussed. The appeal should be allowed, the judgment below set aside and in lieu thereof judgment should be entered for the appellant in the sum of $26,125. The respondent should pay the appellant's cost of the trial and the appeal, but is, if qualified, to have a certificate under the Suitors Fund Act 1951 in respect of the latter. Grove AJA I have had the benefit of reading the judgments of Clarke AJA and Handley JA in draft form. I agree with the orders proposed by Clarke AJA. I consider it unnecessary to opine upon the reservation expressed by Handley JA. I observe that authority such as Sara v Government Insurance Office (1969) 89 URJ HADLAND v COUNCIL OF THE CITY OF BLACKTOWN (Grove AJA) 9 WN Ptl (NSW) 203 may, in an appropriate case, need to be analysed in the light of subsequent development of the law concerning the significance of the category to which an injured entrant upon property belongs: Australian Safeways Stores Pty Ltd v Zalzuna (1987) 162 CLR 479; Nagle v Rottnest Island Authority (1993) 177 CLR 423. Appeal allowed; judgment of Twigg DCJ set aside and judgment entered for the appellant in the sum of $26,125. Respondent to pay appellant's costs of the trial and appeal, but is to have (if qualified) a certificate under the Suitors Fund Act 1951 in respect of the latter. Counsel for the appellant: Mr G Petty Solicitors for the appellant: Burston Adams Roberts & Cole Counsel for the respondent: Mr M McCulloch Solicitors for the respondent: Phillips Fox