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by leave - injury to baseball player - transcript discloses that duty of care conceded at trial - leave to appeal rescinded (ND) DECISION : See par 48.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. Counsel for the plaintiff, Mr Inglis, said, I perceive that to be the issue your Honour, essentially a factual situation. 12 Counsel for the defendant seems to have been in error in thinking that the two clubs were his clients. However, that error and the balance of the answer to which I have referred makes it pretty clear to me that he was not distinguishing in any way between the various defendants whom he represented, and he was not raising an issue as to the duty of care which the defendants or some of the defendants may have owed to the plaintiff. 13 In light of Hyde v Agr (1998) 45 NSWLR 487, Agar v Hyde (2000) 74 ALJR 1219 it is clear that serious issues as to duty did arise at least as regards the first group of defendants. Nevertheless, no such point was taken in the exchange to which I have referred, nor was it suggested that there was any distinction as between the various groups of defendants represented by common counsel and common solicitors. 14 The only witness called in the plaintiff's case was the plaintiff himself. He led no evidence as to the identity of individual defendants or the respective roles of the two unincorporated associations. 15 He said that it was his belief that the base to which he was moving would move and that belief was based upon his experience in previous games. He was not a terribly experienced player. I think he had played about fifteen games previously. He was challenged on this. It was put to him that in games that he had previously played the bases were invariably securely fixed to the ground. He conceded that in his experience bases were pinned with a single pin that enabled them to spin on a corner, but (although challenged) he did not resile from his contention that he believed that the base into which he was sliding at the Old Junee field would give to some degree. 16 Three witnesses were called in the case for the defendants. Nothing in their evidence suggests to me that there was any attempt to contest the issue of duty or to distinguish in any way between the two unincorporated associations that were sued in the proceedings. 17 The thrust of their evidence was that bases were either invariably or usually fixed, and that the plaintiff had played in games in other venues where bases had been securely fixed. 18 It is clear to me that that evidence was led and relied upon in support of the challenge to the credibility of the plaintiff's assertion that he was ignorant of the secure fixing of bases. 19 Judge Puckeridge gave judgment ex tempore. As I have already indicated, he preferred the evidence of the defendants' witnesses who were eye witnesses to the accident and said that the plaintiff had jumped at the base rather than endeavouring to slide into it. 20 His Honour accepted the evidence of the defendants to the effect that bases were normally fixed securely. It is clear that the base in question was securely fixed. That indeed was the cause of the plaintiff's injury. 21 His Honour held that there was a real risk of injury to players if they attempted to carry out a slide into a fixed base without being advised as to the dangers of doing so if not carried out in a proper manner. The fact that his Honour expressed himself in this way is some further confirmation to me that he was not drawing any hard and fast distinction between jumping at a base and sliding into it. 22 His Honour was also satisfied (he said that the evidence was unchallenged in this regard) that the plaintiff had had no training as to the correct way to slide into a fixed base and in particular had had no advice or warning of the dangers of jumping at a base in the manner in which he did. 23 His Honour held that the plaintiff had just recently taken up the sport and that he was unaware of the dangers of jumping at a base in the manner in which he did. Later in his judgment when dealing with the issue of contributory negligence his Honour found in effect that the plaintiff had believed that the base would move. 24 His Honour concluded that the plaintiff was particularly vulnerable to injury if he has to undertake the manoeuvre that he did. He said that he considered there was duty on the part of the defendants to protect the plaintiff from a unnecessary risk of injury by advising him of the dangers of jumping at a base. 25 Towards the latter part of his judgment on liability he said, In the circumstances, I have come to the conclusion that as he assumed the base was not fixed, and he was not trained or warned as to the dangers of jumping at the base, there should be no reduction on account of contributory negligence. 26 His Honour then addressed quantum and assessed damages at $48,340. 27 On 11 December 2000 this Court, constituted by Priestley JA and Fitzgerald JA, granted leave to appeal. The transcript of the leave application on 4 and 11 December shows that the main, if not the sole reason upon which leave was granted in this comparatively small money claim was the issue of duty of care. Their Honours were clearly troubled, and understandably so, as to how the facts as found led somewhat inexorably as his Honour proceeded in the judgment to a judgment against all of the defendants. 28 The main ground on which leave was resisted by counsel then appearing for the opponent plaintiff was his argument that duty of care had effectively been conceded at trial. There were affidavits filed about the matter. There was some reference made to the material to which I have already drawn attention. However, despite an adjournment the opponent was not able to establish to the ultimate satisfaction of their Honours that duty had been conceded or that for some other reason this was not an appropriate vehicle to look at the question of duty of care. 29 The judgment given by Priestley JA made it plain that this was the way the court had proceeded and expressly left open the right of the opponent to move to rescind leave or, alternatively, to oppose the appeal on the basis that it was unjust to allow this new issue to be ventilated for the first time on appeal. 30 The transcript of final submissions came to the hands of the plaintiff's solicitor on 21 December 2000. Presumably under the gentle whip of the Registrar the parties proceeded to exchange and file their submissions as on appeal and directed at the five grounds of appeal covered in the notice of appeal. 31 At about the same time as the submissions for the respondent were filed a motion was put on, supported by an affidavit which contained the transcript of final addresses. The plaintiff moved the Court in effect to rescind leave. There was an attempt earlier this week to have today's hearing vacated so that application could proceed separately, but I determined that it was better for the matter to proceed to the fixed date leaving it open for that issue to be raised in an appropriate way. 32 What the transcript of final submissions at trial establishes to my satisfaction is that the question of duty of care never attracted anyone's attention at this trial. There was no reference to Hyde v Agar or any other authority. There were no submissions advanced challenging duty or seeking to differentiate between the classes of defendants or otherwise to explore the factual or legal issues that would be involved in contending against duty. 33 The transcript of submissions shows counsel for the defendant at trial putting his submissions first, pressing his Honour to accept that the plaintiff actually knew that the bases were fixed; or alternatively, to hold that the plaintiff was grossly careless in doing what he did. 34 In the context of discussing this submission as to the plaintiff's knowledge that the bases were or were not fixed, his Honour put to counsel in effect that whether that was so or not, should not the plaintiff have been warned and told that they were fixed, particularly in relation to this manoeuvre of sliding. There was debate as to the fact that the plaintiff was a new player, inexperienced, and that the risk of injury was clearly foreseeable. It was conceded as I read the transcript that the plaintiff had not been given training on that matter, that having been the evidence that had been adduced. 35 The response of counsel for the defendants at trial was to emphasise how stupid the plaintiff was in embarking upon this dangerous endeavour. But there was no protest or suggestion that this alternative theory of liability, if that is what it was, amounted to a improper departure from the way the case had been opened or fought. 36 The grounds of appeal are five. The first is that the trial judge ought to have found that the respondent had voluntarily assumed the risk of suffering injury. Since however volenti was never pleaded or raised as an argument, this ground cannot and should not be entertained. The facts did not get close in my view to supporting any such argument in any event. 37 The second ground of appeal challenged the finding that the respondent did not know that the base was fixed to the ground. As framed it accepts, and I think properly so, that such a finding was made. That finding was based upon his Honour's obvious acceptance of the plaintiff's evidence. It is true that there was some evidence to the contrary, but his Honour was in my view clearly entitled, having heard the plaintiff challenged on the issue, to accept that he was in fact ignorant of the fact that these bases at this venue were firmly fixed. 38 I pass over ground three for the moment. 39 Ground four asserts that his Honour ought to have found that the respondent's action in jumping towards the base was the sole cause of the respondent's injury. I have difficulty in seeing the real point being advanced in that ground. It may be said as a matter of physics that it was the sole cause of the injury, but clearly his Honour (in finding fault against the defendants) was not confined to issues of physics; and I have indicated the basis upon which his Honour did proceed to that finding of fault. I see no error in that aspect of his Honour's judgment. 40 The fifth ground challenges the finding of contributory negligence. As I indicated in the course of argument, I think the plaintiff was fortunate to have no deduction for contributory negligence, but I cannot see any appealable error in the approach that his Honour took on the issue, bearing in mind the issue that was fought and presented for his consideration, his finding that the plaintiff was ignorant that the base was fixed, and his acceptance of the unchallenged evidence that the plaintiff had not been given training about sliding or jumping into bases. 41 The third ground of appeal asserts that the trial judge erred in finding that the appellants should have warned the respondent of the risks of jumping instead of sliding. This is the vehicle in which the appellants seek to raise the duty issue. I have already indicated that the exchange before evidence was called; the issues explored in the oral evidence; and the concluding submissions show that no point was ever taken about duty. 42 In what I understood to be a separate point raised by senior counsel for the appellants, it was submitted that his Honour had in effect moved off the mark, if I can mix metaphors in this particular case, because the issue that was stated at the very beginning of the trial, namely was the plaintiff aware of the fixing of the bases to the ground or not, was not the same as the issue upon which the judgment ultimately turned, namely the failure to warn the plaintiff as to the dangers of sliding or jumping into the base and train the plaintiff as to the correct way to do it. This is the point that has troubled me most in this matter. 43 The third of the particulars is the closest that the pleadings get to the issue on which the case ultimately turned, namely negligence in failure to warn players of the means adopted to fasten the bases of the dangers they presented. I think, however, that his Honour was entitled to treat the exchange between counsel that immediately preceded the plaintiff's evidence, and the oral evidence at trial, as encompassing the alternative theory, alternative in the sense of based on jumping rather than sliding, upon which the judgment ultimately turned. 44 I have indicated that there seems to have been little or no dispute that this particular plaintiff was a novice and that he had not received any proper training as to how to slide or jump into bases. His Honour made an unchallengeable finding based upon evidence adduced in cross-examination of the plaintiff himself. 45 The exchange between bench and bar in final addresses further reinforces in my mind the fact that the parties perceived and fought this trial on the basis that the critical question was and remained whether the plaintiff had ever been told about the bases being fixed but this was clearly against the background that he had injured himself through hitting a firmly fixed base. He could have been told the bases were firmly fixed at a training session, or he could have learnt this from his earlier playing experience, but the fact as found was that this was not brought home to him. There was evidence from one of the defendants that there were training sessions. The capacity of a fixed base to cause injury to an unskilled but overly bold baseball player were pretty obvious. 46 I am clearly of the view that the question of duty of care point was never taken at trial and that it would be quite unjust in the circumstances to allow it to be ventilated on appeal. I would reject the submission of senior counsel for the appellants that no evidence could have cast any light on this issue. It seems to me that there was a great deal of evidence that would have been relevant to any duty case, including evidence as to the known experience of sports administrators and these defendants in particular in this particular district association that would have been very relevant to a question of duty. Furthermore, I don't consider it to be in any way just to allow a matter that passed without any concern at trial to be raised. This is certainly not an appropriate vehicle for a legal disquisition about duty of care between sports administrators and players. 47 Once that issue goes, the remaining issues are either hopeless, for the reasons I have indicated, or in the case of the argument about the third of the particulars; so enmeshed in the minutiae of how this particular trial was conducted that the case does not merit the grant of leave. I do not think that it is appropriate that this small verdict should be put under challenge to raise such a matter of uncertain outcome where there is a very large contribution on the defendant's part towards that uncertainty and where I do not think the prospects of success are there. 48 Accordingly I propose that the matter be disposed of by rescinding the grant of leave and ordering the appellants to pay the respondent's costs of the proceedings in this Court. 49 STEIN JA: I agree with the President. 50 STUDDERT J: I also agree. 51 BURBIDGE: Your Honour, there's one matter I should raise. It's a question of costs. I wonder if I could commence by handing to your Honours a chronology of the procedural matters which have bedevilled the application. 52 Could I tell your Honours this that there was an exchange of correspondence between the parties following the applications of December, I regret I have only one set your Honour, I will hand them up, they are quite short and if I might simply read them to the Court but before doing so your Honours would see that on two occasions the application for rescission for leave was unable to be heard for reasons associated with pressure of business before this Court, quite apart from the attempt which was before your Honour the President earlier. That resulted in the matter being taken out of the list on those two occasions and unhappily the time simply caught up with the application. There was simply no time to deal with it before today. 53 MASON P: What order are you seeking Mr Burbidge? 54 BURBIDGE: I'm seeking an order for indemnity costs your Honour. 55 MASON P: Not based on Calderbank offers? 56 BURBIDGE: Yes, based on an exchange of letters in which an offer was made, which I will read to your Honours if I may and on the circumstances of the refusal which followed, well the declining of that offer in effect. 57 MASON P: Yes. 58 BURBIDGE: Could I just indicate to your Honours if I may briefly read the letters. The first is that of 9 April of this year when my instructing solicitors wrote to those of my learned friend enclosing a copy of the transcript of submissions made in relation to the matter, noting that the court had granted leave to appeal to proceed on the basis that the question of whether a duty of care was owed was argued by the defendant at the time of hearing. It is apparent from review of the enclosed transcript that no such argument was made. In that circumstance we would be grateful if you would advise as to whether your client intends to pursue the appeal. In the event that your client does intend, we would be grateful if you would confirm that your client will consent on certain mechanical matters. 59 Then a letter back from Connery and Partners of 17 April saying, we confirm we are considering the matters raised in your letter dated 9 April. 60 Then 14 May, we enclose a copy of the transcript of the leave application. We will be preparing affidavit in relation to the matter. In particular we would refer you to page 6 and 7 of the transcript. Again request you obtain your client's instructions as to whether they wish to proceed with this appeal in those circumstances. We note that we previously indicated we will be seeking costs on an indemnity basis as it is apparent that the point which your clients wish to argue was not raised at the trial. We look forward to hearing from you. 61 A letter back from Messes Connery and Partners of 23 May. Refer to your letter dated 14 May. We note your proposal to prepare affidavit evidence. As you know we are required to serve appellant submissions. In order to prepare those submissions we require the evidence. We will therefore proceed to prepare the submissions on the assumption there will be no affidavit evidence from the appellants. 62 On 24 May my instructing solicitors wrote, We refer to your facsimile received today. In view of your client's attitude we are instructed to proceed with an application for leave to be revoked. We will let you have the supporting documentation as soon as available and going on to talk about submissions. 63 Finally your Honours on 20 August, that is two days ago, this letter was written to Messrs Connery and Partners. We refer to the abortive attempts to have heard our notice of motion for recision of leave. As you are aware, pressure of business precluded the Court of Appeal dealing with that motion which is now listed with the appeal for hearing on Wednesday twenty-second instant. It is clear from a reading of the transcripts and judgment in the leave application that leave has been granted on one ground only, namely the volenti ground, ground one of your appeal. Their Honours at the time of granting leave made it clear that they did so on the basis that it could not at that time be shown that the question of duty had not been raised before the trial judge. Their Honours foreshadowed the likely withdrawal of leave should the transcript not then available show that no issue of duty had been raised in closing submissions. As it is clear from the transcript now available that the sole issue debated before the trial judge in submissions was breach of duty, it is in our view inevitable that the grant of leave obtained by your client will be revoked. It follows that your appeal is doomed to fail. This letter is to invite you to discontinue the appeal and to submit to a party and party costs order in favour of our client. If this offer is not accepted before 4.00pm tomorrow and should your appeal prove unsuccessful we will rely on this letter in support of an application for indemnity costs. 64 That offer was not accepted your Honour and accordingly we submit that it is appropriate. 65 SEXTON: Your Honours in my submission those letters are not in the nature of Calderbank letters because there is no offer of compromise. All it said is that if you pursue this appeal we'll ask for indemnity costs. They're not offers, they're threats. 66 Secondly, the only alternative basis on which indemnity costs could possibly be ordered is that the refusal of the appellants to consent to a revocation of leave was so completely unarguable or untenable that it was in effect an abusive process to take that stance. In my submission that argument can't be sustained. There was a basis. Your Honours have heard the arguments and in my submission there's nothing about the conduct of the argument today before your Honours that would indicate that the appellant's position was so unmeritorious that it should be punished with an order for indemnity costs. 67 The first one is the strongest one your Honours, there's just simply no offer of compromise, or no offer to compromise with respect. 68 MASON P: We will not make any special order for costs in this matter. ****************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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