HAYMES & ORS v PROWSE & ORS [2001] NSWCA 328

New South Wales Court of Appeal

CITATION : HAYMES & ORS v PROWSE & ORS [2001] NSWCA 328 FILE NUMBER(S) : CA 40208/00 HEARING DATE(S) : 22 August 2001 JUDGMENT DATE : 22 August 2001

PARTIES : DANNY DALE HAYMES & 10 ORS v GLEN ANTHONY PROWSE & ORS JUDGMENT OF : Mason P at 1; Stein JA at 49; Studdert J at 50

LOWER COURT JURISDICTION : District Court LOWER COURT 29/99 (Wagga Wagga) FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: Sexton SC/ J Turnbull Respondent: Burbidge QC/ A Casselden SOLICITORS : Appellant: Connery & Partners Respondent: Commins Hendriks CATCHWORDS : Appeal by leave - injury to baseball player - transcript discloses that duty of care conceded at trial - leave to appeal rescinded (ND) DECISION : See par 48.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40208/00 MASON P STEIN JA STUDDERT JA

Wednesday 22 August 2001 Danny Dale HAYMES & 10 ORS v Glen Anthony PROWSE

JUDGMENT 1 MASON P: The plaintiff (who is the respondent in the appeal) broke his leg playing baseball at the Old Junee sports ground. He was a member of the Bluejays baseball team. The opposing team were the Junee Brewers. Each team was affiliated with the Wagga Wagga District Baseball Association. 2 The plaintiff took off from second base after a ball had been hit into the outfield. The ball was caught and he found himself having to get back to second base in a hurry. The base was firmly fixed - as required under the rules and contrary to the plaintiff's expectation. His left leg hit the base and in his words, "I may as well have slid into a brick wall. It was just fixed hard." 3 The plaintiff's evidence was that he slid into the second base, but the judge preferred the evidence of other players who said that they saw him jump at the base. In prefering that evidence, I do not perceive that his Honour was drawing a hard and fast distinction between two methods of moving quickly at this unexpectedly immovable object. It is clear that the plaintiff was inexperienced and that he flung himself at the base, and that caused him injury. There was no exploration of the mechanics of the different methods of arriving at the base as regards the injury that the plaintiff ultimately suffered and the issue upon which the trial appears to have turned, to which I will return, did not seem to draw any distinction in that regard either. 4 The plaintiff recovered a verdict of some $48,000 odd on the basis that he had received no advice or training from the District Baseball Association about the dangers of jumping into a base as he had done. That evidence had been adduced in cross-examination of him. 5 The plaintiff sued in the District Court. Eleven defendants were joined. The plaintiff pleaded that the first to sixth defendants were office bearers, members and/or representatives of an unincorporated body known as the Wagga Wagga District Baseball Association and that they were responsible for the administration, playing and control of baseball games between member clubs. 6 He pleaded that the seventh to eleventh defendants were office bearers, members and/or representatives of an unincorporated body known as the Junee Brewers Baseball Club and that they were responsible for the administration of the club and the control and playing of games between itself and other clubs affiliated to the Wagga Wagga District Baseball Association. 7 The defendants were represented by common solicitors and common counsel, being counsel other than those who represent them in this appeal. 8 In the composite notice of defence the defendants pleaded that the allegations to which I have just referred were not admitted. 9 The particulars of negligence pleaded have something of a scattergun appearance. It is true that the primary thrust of the particulars concentrate upon the fact that the base to which the plaintiff slid was immovable. Paragraph C, however, refers to a failure to warn players of the damages presented by the means adopted to fasten the bases. 10 The trial transcript shows that counsel for the plaintiff opened the trial, which I should have indicated was heard in Wagga Wagga as part of a busy country sitting. Medical reports were tendered and in the course of the opening the plaintiff also tendered a report of a sports science consultant which seemed to establish among other things that the base into which the plaintiff careered had been set up in accordance with the rules of baseball. 11 His Honour asked counsel for the defendant at this stage, "What are the issues? There seems to be a myriad of defendants around here". He was given the following answer, Turnball: Your Honour I appear for all defendants in essentially that the clubs weren't incorporated. The plaintiff was playing for one club against another club. I think both clubs are sued, but neither clubs were incorporated at the time, that's why there is a myriad of defendants, and your Honour I think the issue is whether the plaintiff was aware of the fixing of the bases to the ground or not. I should say your Honour, I have a number of witnesses, but I don't expect this case will take a great deal of time.