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IVAN RUBINSTEIN[*]
In March 1996 whilst playing indoor cricket, Mr Woods met a full toss with a poorly executed pull shot. The result of the nick was that the ball struck Woods, who was left with a total loss of sight in one eye. Woods sought compensation on the basis that a duty of care was owed by Multi-Sport, and that the standard of care owed had failed to meet the required level. In 2002 the case was finally decided through the courts. At the end of six years of court action, through three different courts, including the High Court of Australia, the issue was resolved.
The final outcome, however, remains unsatisfactory. The decision in the High Court, by a 3:2 majority, found that there was no negligence on Multi-Sport’s behalf. In the five separate judgements delivered, the final outcome failed to define the criterion required before a breach can be found.
The Victorian Government, as of 15 March 2002, inadvertently stepped in to offer a solution for such situations. In response to rising insurance premiums, the Government passed the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002. The Act, which amended a number of Acts for a variety of purposes, included an amendment to the Goods Act 1958 (Vic) to allow for occupiers to expressly exclude liability by exclusion clauses. Despite this, the matter remains unresolved, as proposed legislation to be introduced into the Victorian Parliament (the Civil Liabilities Bill) is set to further confuse the issue. It appears that until revisited and clarified by the courts, the duty of care owed in a sporting context is destined to be uncertain and imprecise.
In Woods the High Court, consisting of Gleeson CJ and McHugh, Kirby, Hayne and Callinan JJ, held by a 3:2 majority that it was not negligent for Multi-Sport not to have provided helmets to those playing indoor cricket at the venue and not to have warned players about the risk of injury.
The appellant, Mr Woods, was a 32-year-old man. He was an experienced outdoor cricketer. However, in his second game of indoor cricket he faced a full toss[2] while batting and mistimed his stroke, nicking the ball. Mr Woods received serious ocular injury and claimed that helmets should have been provided to players and that there should have been a sign warning players of the risks which Woods claimed were not obvious.
At first instance the questions before French DCJ in the Western Australian District Court related to negligence. It was not contested that a duty of care was owed and the case revolved around two issues. The first was with regard to the lack of warning about the dangers of playing indoor cricket (especially relating to serious eye injury). The second was with regard to the fact that no proper eye protection or guarding was provided to the plaintiff.[3]
Regarding to the absence of warning, French DCJ recognised indoor cricket as an activity that has a number of inherent risks[4] and as a sport in which one could become easily injured.[5] In determining whether the absence of warning was negligent, the question French DCJ posed to herself was ‘whether the risk of serious eye injury is included in the inherent risks accepted by the plaintiff, or whether it constituted an unusual or hidden danger that necessitated a specific warning to be brought to the attention of the participants including the plaintiff’. Her conclusion was that in a situation where there is an obvious risk of being hit on any part of the head or body, there should be no requirement to warn of a specific risk of eye injury.[6] It was also clear that the respondent did not know or understand the mechanics that gave rise to the particular risk, but French DCJ did not address the issue of whether the respondent should have known.[7]
Regarding the lack of protection, medical evidence was given to show goggles were unsuitable and only a full helmet with face guard similar to those used in outdoor cricket would constitute suitable protection.[8] However it was noted that there were no helmets designed for indoor cricket, and that the rules of the game actively discouraged the use of a helmet by requiring special permission to use one.[9] As such French DCJ held that providing helmets was unnecessary as there were no suitable designs, and nor was the use of a helmet as a form of protection a typical or customary safety measure taken by indoor cricketers. Moreover, helmets could not be used without special permission from the Australian Indoor Cricket Federation.[10] There were good reasons why helmets were rarely used and for venues not to provide them – helmets were not an accepted form of protection and were unsuitable given the nature of the sport and, in some circumstances, could make the game more dangerous.[11]
On appeal it was held that ‘no warning was required because of the obviousness of the ‘"quite high" risk of being struck on the head by a ball, was clearly open on the evidence’.[12] It was also held that ‘the practise of playing indoor cricket without a helmet [did not] involve an unreasonable disregard for safety on anybody’s part’.[13]
As noted above, the decision of the court was split 3:2, with the majority of Gleeson CJ and Hayne and Callinan JJ holding, in separate judgements, that there was no negligence in the failure to provide protective headgear and in failing to warn participants of the risk of ocular injury. The issue before the High Court again had little to do with duty of care because the duty was conceded by the respondent as it was imposed by s 5 of the Occupiers Liability Act 1985 (WA). Instead the court examined the standard of care required, a task that requires the court to compare what was done to what must be done.
In his judgement, Gleeson CJ acknowledged that indoor cricket was an inherently risky activity. Moreover, he held that the relationship between the parties was not one of reliance (the obligations would be inarguably different if the parties involved were, for example, a school and a pupil).[14] Regarding equipment provided by the operator, Gleeson CJ held, for a number of reasons, that there was no requirement to provide protective headgear. First, there were good reasons for players not to wear such protection. Second, protection was not worn by players elsewhere. Third, the rules of the game did not provide for such equipment to be worn.[15] In the opinion of the Chief Justice, it was irrelevant that the respondent in this case was conducting business for profit as compared to a volunteer. With regard to warning players, Gleeson CJ simply referred to the decision of the trial judge, who held that the risk was so obvious that no warning was required. There was no error in the reasoning of French DCJ in finding such a ruling, and there was no error in the basis of such a ruling.[16] As such there was no error made by the trial judge, and the appeal was dismissed.
In his concurring judgement, Callinan J, after an examination of the ruling of French DCJ and the ruling of the Full Court, held that it was not negligent to fail to provide a helmet, as helmets were not allowed in the game and the majority of ocular injuries in indoor cricket matches affect fielders and wicketkeepers. Callinan J was also of the opinion that the court should not look to outside evidence, factors or publications (such as the national health survey which was examined by McHugh J despite it not being used by counsel), which has the potential to be unhelpful as it was irrelevant and potentially misleading.
Finally an issue Callinan J briefly examined was the nature of the law and its interaction with sports. On this issue Callinan J found that the duty of care cannot operate with regards to sports in the same way as other activities.[17] This in itself was enough reason for the respondent not to have warned participants about the risk of injury.
The last of the concurring judgements was given by Hayne J, who in a concise judgement held that what must normally be considered is the magnitude of the risk, the probability of it occurring and the expense, difficulty and inconvenience in rectifying the action, as well as any other conflicting responsibilities.[18] However Hayne J felt it was not appropriate for an appellate court to examine what he considered to be a question of fact. In the lower courts, Hayne J felt that there had been no error in law, and as such there was no reason for the High Court to overrule the finding. Despite this, however, Hayne J held, for the same reasons as Gleeson CJ, that reasonable care does not require participants to be warned of obvious risks, and in this case reasonable care did not require the provision of helmets.
The dissenting judgements were delivered by McHugh J and Kirby J. McHugh J considered the traditional analysis of negligence. It was reasonably foreseeable that an eye injury could occur, Multi-Sport knew (or should have known) of the risk of injury and providing a helmet would have alleviated that risk. As such, the trial judge should have found there was a breach of the duty.[19] It was also considered important that the gravity of the risk, the likelihood of the risk occurring and the small cost in eliminating the risk made it unreasonable for Multi-Sport not to eliminate the risk. McHugh J held a failure to provide a helmet and warning was negligent, and that the industry practice of not providing a helmet may guide, but should not determine actions.[20] Further, despite it being against the rules of the game to play with helmets, Multi-Sport should have known that indoor cricket was a major cause of eye injury (a fact supported by an examination of a number of reports),[21] and Multi-Sport should have acted upon such a fact. McHugh J felt that the law of negligence should apply to sport in the same way as it applies to any other activity, and if the rules of negligence apply to sport then the rules governing an activity should be subject to the law.[22] The risk of eye injury was not obvious to an inexperienced or uninformed player, and as such Multi-Sport breached its duty by not providing a warning. Finally, McHugh J took particular notice of the fact that Multi-Sport was making a profit as compared to acting as a volunteer.
Kirby J began his judgement by mentioning that there had been a campaign to prevent eye injury to indoor cricket players and that the respondent should have known of such a campaign, as well as by noting the high number of eye injuries caused by indoor cricket matches. Kirby J acknowledged French DCJ had held that there were no suitable helmets for indoor cricket and that, regardless, wearing helmets was against the rules of the game, and that the Full Court of the West Australian Supreme Court concurred with French DCJ. However, paramount to Kirby J’s judgement was the fact that the law applies to sport in the same way as any other activity, and that there should be no exception from the law of tort in its application to sport.[23] Given that it is recognised that the duty owed by an occupier to an entrant is very high (despite the duty being contractual)[24] and that it is no longer the common law practice to say that a participant voluntarily accepts the inherent risks of every dangerous activity in a game,[25] the court should overrule the findings of fact made at trial. The fact that the original trial was heard in front of a single judge and without a jury should make it easier for the court to overrule the decision, despite overruling an error of law rather than an error of fact.[26] In this case the trial judge erred in giving too much weight to the rules of the sport which allowed the standard of care to be reduced too far. Kirby J, relying on Rootes v Shelton[27] held that the rules governing a sport do not expel the law[28] and, although they should be taken into account, they are not definitive. Kirby J also held that in this case there was no voluntary assumption of risk, as this would only occur when there was something that could not be protected against or something that the claimant knew of and chose to ignore,[29] which was clearly not the case here. With regard to the warning that must be provided to players, Kirby J examined his statement in Romeo v Conservation Commission of the Northern Territory[30] which was relied on by French DCJ in her Honour’s ruling. The statement does not apply merely due to an obvious risk. In this case there would be no need to warn of certain obvious things (such as the risk of collision with another player), although warning should be given about the potential for eye injury due to the small field, the type of ball and absence of head protection provided. Kirby J, like McHugh J, also took note of the fact that Multi-Sport was not acting as a volunteer, but was running a business for profit.[31]
The judgement in Woods has left a number of issues unresolved. First, the court failed to accurately decide on the nature of a sporting competition and the way that sporting matches interact with the law. Second, after the judgement was delivered, it remained unclear as to when the court would ever find, in a sporting context, that there had been negligence, and exactly what factors were important in arriving at such a conclusion.
In the 1967 High Court case Rootes v Shelton[32] it was clear that different views existed regarding sport’s interaction with the law. The judgement of Barwick CJ made note of what the Chief Justice referred to as ‘inherent risks...accepted by those who engage in sport.’[33] Importantly, Barwick CJ noted that this did not mean that there was no duty of care owed, but rather that the duty owed would have to be decided on a case by case basis.[34] Conversely, it was held by Kitto J that ‘sport is simply an activity in which participants place themselves in a special relation... with other participants, so that adjudication under the common law upon a claim... for damages for negligence in respect of injuries sustained in the course of the activity requires only that the tribunal of fact apply itself to the same kind of questions of fact as arise in other cases of person injury by negligence’.[35] It has been noted by others commenting on the effect of tort law on sport and the inherent risks accepted by sportsmen that ‘the problem is that while the courts have recognised [the inherent risks in sport], they have provided scant guidance as to the form which this modification should take and the process of getting there’.[36]
An issue central to the finding in Woods was the relationship between the law and sporting activities, and comments such as those above appear to have been ignored by the court in Woods. Despite the established authority of Rootes providing that torts in a sporting context should be treated in the same way as all other torts, three members of the High Court – Callinan J, McHugh J and Kirby J – made comments on the area, which were clearly an important aspect of the court's final decision.
Callinan J was the only judge to hold that the law of tort should not apply to sport in the same way as it applies to other activities. Callinan J had previously expressed this view in Agar v Hyde,[37] stating that ‘sport, particularly amateur sport, stands in an entirely different position from... other areas into which people must venture’.[38] Relying on the idea that the risk was so obvious that no reasonable person could think that it did not exist, Callinan J reaffirmed his position in Agar v Hyde that the requirement that participants be warned of danger in a sporting context are less than in other contexts. The reason for this is that it is the very nature of sport and sporting competitions that participants seek to achieve a state of ‘physical superiority or domination’ over other participants or teams.[39] This view has been criticised by commentators as creating a picture of sport that is risky, domineering and competitive.[40] Questions have been raised about the judgement given that in modern times sport is enjoyed by both men and women of all ages. Given this, the perception of sport as something that reflects traditionally male characteristics is inappropriate.[41]
McHugh J mentioned the issue only briefly, stating that ‘sporting arenas are not Alsatias where the common law does not run’,[42] and that the rules of a game may not override the rules of negligence by lowering the required level of reasonable care that must be exercised.[43] McHugh J does note that a plea of volenti non fit injuria, or an exclusion clause, may be used to lower the level of care, something that will be discussed in more detail later in this article.
Kirby J, in his dissenting judgement, was aware of the problematic relationship. He reaffirmed the fact that Australian courts have not traditionally held that the relationship between sport and the law has been different to any other activity,[44] and even nations that have held sport should be treated differently to other activities have often reversed these decisions.[45] His approach to sport is that the ‘additional or alternative values of sport’[46] – what Kirby J refers to as the ‘true values of sport’[47] – should be given as much consideration as the values of domination and competitiveness espoused by Callinan J.
It is timely to note here that one of the cornerstones of Australian tort law jurisprudence, Wyong Shire Council v Shirt,[48] involved a case of negligence in sport. In Wyong Shire Council, it is clear that the court was not swayed, and did not even consider, that because the activity in question was a sporting one, the final outcome would be any different. The High Court has recently held that other areas of tort law that have been treated separately in the past should not be differentiated from the standard tort formula of duty of care, standard of care, causation and remoteness.[49] In analysing the relationship between sport and the law in comparison to other areas and the law, some commentators have felt that it is unprincipled for the court to find that the law of tort applies differently to sporting situations. In particular, it has been noted that in general ‘rules and industry practice may provide guidance on the relevant standard of care [but] are not determinative’.[50]
In the second main failing of the case, the court was unable to clearly state what would actually be required in order to breach the standard of care. Almost every judgement made different comments about the actions that Multi-Sport had taken and took into account different factors in coming to a conclusion. This made it possible to find a suitable conclusion in the specific case before the court, but did little to clarify a confused area of the law for the future.
Gleeson CJ discussed the nature of the relationship between the parties as a factor. The idea of a relationship being different between two adults and two children was an example given by Gleeson CJ,[51] and was also an idea expressed by the majority in Agar v Hyde.[52] Both judgements used the example of a student’s relationship with his school. In such cases, a pupil is more likely to be able to rely on the equipment provided by the school. The same applies for the relationship between an employer and an employee. However, another factor that Gleeson CJ also emphasises as important was whether there existed a compulsion to engage in the particular activity, or whether it was a voluntary act. Whilst there are a number of cases on the area of voluntary acts,[53] the court in this case did not contemplate a situation where there was voluntary entry into a sports game in the context of a school or workplace.
In the view of the author, there are three primary factors to be examined. The first is the control exercised by the parties over each other. If there is a compulsion to take part in the activity it should heighten the standard of care owed to the participant. The second is the expectation that each party has on the other to provide a safe environment. This point is directly connected to relationship that exists between the parties, and seeks to have the courts examine the reliance each party puts on the other. The final factor is the experience that each party has in the activity – the less experienced the participant, the greater the standard of care owed. In addition, the nature of the activity itself is central. Regardless of how these factors play into each other, the Chief Justice makes it clear that in the end it is for the court to decide – ‘it is ultimately a question of factual judgement, to be made in light of all the circumstances of a particular case’.[54]
In a number of negligence cases before and after Woods, the court has examined the effect of an organisation being for profit. In Lanyon v Noosa District Junior Rugby League Football Club,[55] the Queensland Court of Appeal found that because the organisation involved was a voluntary organisation, it should not be liable for an injury caused by a hole in the playing field – it was unreasonable to find that such an organisation could provide a perfectly flat oval.[56] A number of judgements also make mention of that fact that Multi-Sport was a business that was operating for profit rather than acting as a volunteer. According to Gleeson CJ in Woods, acting as a volunteer or for profit is largely irrelevant, whereas others found that it was a relevant factor that Multi-Sport was acting for a profit.[57] Commentators have argued that this is a substantial shift in the law. According to Burns, ‘previous authority held that a defendant’s actual resources... were not relevant to the question of what a reasonable person would have done in response to the relevant risk.’[58] Kirby J held that ‘it is not acceptable for a profit making organisation to shrug off serious injuries as a cost involved in its business, tolerable because it will be borne by others’.[59] Kirby J went on to reinforce his opinion that the law must apply to sport in the same way as any other area.[60] However, these comments are not central to the reasoning of the court, and thus not something the court focused on. It too is an issue that remains unresolved.
In the opinion of the author, it should make little difference that there was profit involved. Rather, the position of the person involved should be taken into account. For example, the obligations of any person involved, from a volunteer that assists with keeping score on an irregular basis to a full-time manager of a venue, should not change regardless of whether a profit is sought.
The question of how obvious a risk must be before there is a requirement to warn participants in the activity of that risk was another unresolved issue. On the one hand, Gleeson CJ simply upheld the ruling of the trial judge – there was no need to warn when the risk was so clear. The nature of the game is that a ball is bowled as fast as possible at a batsman, and the risk of being hit, either on the head or body, is obvious.
Conversely, McHugh J held that the risk was not clear to ‘the mind of an uninformed player’.[61] As such, Multi-Sport breached its duty in failing to warn of such risks. Kirby J agreed, finding that it is no excuse that the risk is obvious, and that in many cases, despite obvious risk, there is an even more significant duty to warn.[62] Despite this, Kirby J did make some exception for risks that were 'self evident' (in this case of collision between players). The factors taken into consideration in determining what amounts to a risk that is not obvious and a 'self evident' risk appears to be things that are less likely to be known to an inexperienced amateur,[63] although no relationship was defined.
Important in the decision of the judges was Romeo v Conservation Commission of the Northern Territory, an earlier High Court decision regarding obviousness of risk. As noted, it had been relied upon by the lower courts. The judgement in Woods shows that Kirby J, however, ‘had not elevated the concept of “obviousness” to an all-determinative status – the obviousness of the risk is a factor, not the factor, in determining the threshold duty inquiry.’[64] There have been some attempts to solve the problem of how the court should deal with accepted risks in sport. Yeo outlines a process by which judges must define what a reasonable sportsman (in the context of the particular sport) is. According to Yeo, the court must then consider particular circumstances in which the alleged negligent conduct occurred, and then using the rules of the sport as a guide, must determine ‘whether or not the risk that caused the plaintiff’s injury was an accepted inherent risk in the sport.’[65] The next step in the process, it is suggested, is that there should be a requirement that the court take into account the issue of accepted inherent risks when ‘balancing the magnitude of the risk of the sporting activity in question against the practicability of precautions and the social utility of the sport’.[66] These comments, made before the ruling in Woods, were not accepted by the court, who made little comment on the way to actually determine what constitutes an obvious or inherent risk.
The only thing that appears clear here is that the outcome will be determined on a case by case basis, and often the deciding factor will be the personal opinion of a judge.
Finally, the effect of the rules of the sport in question is an issue that was discussed in detail in a number of judgements, although again, with no clear consensus evident. Central to the reasoning of Gleeson CJ was the fact that the rules of indoor cricket did not allow for helmets to be worn in general play unless special permission was given. The rules forbade helmets for a reason – they were considered to actually increase the risk of injury in some situations. It was considered unreasonable, by the trial judge, in a view subsequently endorsed by the Chief Justice, that a suburban operator provide equipment that was not contemplated as part of players’ uniforms and was expressly not allowed.[67] In support of this proposition was Callinan J, who argued simply that it was not the obligation of Multi-Sport to amend the rules to provide for appropriate protection.[68]
Questions have been raised, however, about a decision that allows tort law to apply differently to sport than to other areas. For example, medicine is a field with numerous sophisticated professional rules and ethical standards, yet these have not swayed the court in determining the application of tort law. How can it be that tort law be applied to medical practitioners, yet the court permits 'sporting bodies to escape legal accountability by reference to general rules and practices?’[69] This rhetorical question has not been well received by some members of the court. Indeed, Callinan J actively extended the principle in Agar v Hyde (which afforded sports' governing bodies a protection against negligence actions) to organisers – ‘promoters and organisers of sport will rarely, if ever, be obliged to warn prospective participants that they might be hurt if they choose to play the game’.[70]
On the other hand, McHugh J and Kirby J held different views. McHugh J expressly recognised that the rules of the game were binding on Multi-Sport as a member of the various indoor cricket organisations and that had Multi-Sport encouraged the use of helmets, it would be encouraging play contrary to those rules. However, this must be weighed against other factors such as the gravity of the reasonably foreseeable injury, the probability of the occurrence of the injury and whether there is a simple means of eliminating the risk of such reasonably foreseeable injury.[71] In this case, the scale tipped in favour of the latter factors taking precedence. As noted above, McHugh J held that the laws of negligence applied equally to sport as to any other situation, and that these laws must be given more weight than the rules of the sport. He stated that ‘If the law of negligence applies to a sporting activity, the rules governing the activity cannot exempt the defendant from taking precautions that the exercise of reasonable care requires’.[72] Kirby J argued along the same lines, but was more explicit. He said that 'the error... lay in attaching excessive importance to the rules’.[73] The reason for that being an error, according to Kirby J, was that ‘such rules are not definitive of the existence and extent of the common law duty.’[74] The most that should be allowed, according to Kirby J, was that the rules of a game be taken into account.
Thus, it is not whether the rules should be considered by the court, but rather, the extent that the rules should be taken into account that remains unresolved following Woods. In the opinion of the author, in cases where the rules of the sport forbid the use of certain protective items (such as helmets) there should be no requirements to provide the prohibited items. It is unreasonable to expect operators of sporting facilities and organisers of sporting matches to look beyond the boundaries of the rules governing the sport, especially given that almost all modern sports now have features in the rules designed specifically to protect players. Looking beyond them is a financial and logistical demand that would be difficult to fulfil. Furthermore, given the numerous types of injuries that may result from playing sports, such provisions would fail to remove the threat of injury from the activity.
Following the decision in Woods, it was recognised by various commentators that ‘change will have to come from the legislature.’[75]
The Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic) was passed by the Victorian Government in October 2002. It has come into effect sporadically. The background to the sections of the Act examined in this article arose from the well publicised concern about the rise in public liability insurance premiums, which caused problems due to the fact that many organisations struggled to afford the massive premium increases. However, whether intentionally or not, the Act also clears up much of the confusion left in the wake of Woods, although instead of making changes to the duty of care that must be provided by sporting premises occupiers or altering the standard of care that is owed, the legislation simply provides for exclusion clauses to operate effectively in removing liability.
The idea of an exclusion clause to prevent or limit liability is not new. Indeed, in the judgment of McHugh J, such clauses were expressly mentioned as an option, as was a plea of volenti non fit injuria, or 'no injury is done to a consenting party.' However, an exclusion clause would only be valid under the common law. Any attempt to enforce an exclusion clause against a statutory provision of the Goods Act 1958 (Vic)[76] would have been invalid prior to the introduction of the Wrongs and Other Acts (Public Liability Insurance Reform) Act.[77]
Many of the most important changes relevant to this article affected by the Act relate to the Goods Act 1958 (Vic).
Prior to the amendments, the Goods Act held, in part:
S 91 Terms implied in sale of services
In a sale of services there is –(a) implied condition that the services will be rendered with due care and skill; and
(b) in the case of a sale of services by a person who sells services in the course of a business, an implied condition that the services are as fir for the purposes for which services of that kind are commonly bought as it is reasonable to expect having regard to the price of the services, the terms of the sale and all other relevant circumstances.
S 92 Fitness of services for purpose
Where, in a sale of services by a person who sells the services in the course of a business, the buyer expressly or by implication –(a) makes known to the seller; or
(b) in the course of any antecedent negotiations, makes known to a dealer or to a person acting on behalf of the seller –
the particular purpose for which the services are required or the result that he desires the services to achieve, there is an implied condition that the services are reasonably fir for that purpose or are such as might reasonably be expected to achieve that result, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgement of the seller, dealer or other person.
In addition to these two sections, s 97 of the act rendered void any provision in a contract that sought to exclude, restrict or modify, or attempt to exclude, restrict or modify, liability for damages or that attempted to limit the amount of damages recoverable.
Section 16 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 introduced amendments to s 97 that expressly affected the operation of s 91 and 92. It amended the Goods Act as follows:
S 16 New section 97A inserted
97A. Limitation of liability in relation to sale of recreational services
(1) Subject to sub-section (2), a term of a sale of recreational services is not void under section 95 or 97 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying-(a) the application in relation to that sale of recreational services of section 91 or 92; or
(b) the exercise of a right conferred by section 91 or 92 in relation to that sale of recreational services; or
(c) any liability of the seller for a breach of condition implied by section 91 or 92 in relation to that sale of recreational services.
There are a number of important points to be made about the application of the new s 97A. Section 97A(2) stipulates that sub-section (1) will apply if a number of conditions are met. These are (a) that the sale of recreational services was made on or after the commencement of Part 5 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002; (b) the exclusion, restriction or modification contained in the term is limited to liability for death or personal injury; (c) the term is in the prescribed form (if any) and contains the prescribed particulars (if any); (d) if there is a prescribed form for the term, the seller has not made a false or misleading statement as to a material particular in or in relation to the term; and (e) that the term was signed by the purchaser prior to the sale of the recreational services.
However, s 97A(3), limits the use of sub-section (2), providing that, despite sub-section (1), a person is not entitled to rely on a term of a sale of recreational services which complies with sub-section (2) if the person has done, or omitted to do something, in relation to the sale of those recreational services that, but for sub-section (1)would be an act or omission to which ss 91 or 92 would apply (s 97A(3)(a)(i)); or give rise to the exercise of a right conferred by ss 91 or 92 (s 97A(3)(a)(ii)); or be a breach of a condition implied by ss 91 or 92 (s 97A(3)(a)(iii)). These are in addition to the requirement that the act or omission was done or omitted to be done with reckless disregard, with or without consciousness, for the consequences of the act or omission (s 97A(3)(b)).
In s 97A, there are a number of definitions. Arguably the most important is that of 'recreational services, which is defined as services that consist of participation in a sporting activity, or any other activity, that involves a significant degree of physical exertion or physical risk and is undertaken for the purposes of recreation, enjoyment or leisure.[78] Importantly, the definition of recreational services means that the Act is not going to affect professional athletes. Also, the sections will only apply to services of a value not greater than $40,000.[79] Therefore, the effect of the amendment is that an athlete may sign a document stating that the implied terms in a contract[80] do not apply, thus allowing for the validity of exclusion clauses, provided that the required preconditions are satisfied.
Another of the important changes is made by s 7 of the Act, which alters the sum that can be claimed in a court action. Section 28F relates to both past and future economic loss and the loss of expectation of financial support. It limits the amount that a court can award for economic loss to three times the amount of the average wage. However, rather than looking at the average wage of those in a similar position to the claimant, the average wage is considered to be that of all Victorians. Section 28G relates to damages for non-economic loss (ie general damages), and limits the amount that may be awarded to $371,380.
The last noteworthy amendment is found in s 37(1). The section states that ‘a volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation’. Section 37(2) of the act states that ‘any liability resulting from an act or omission that would but for sub-section (1) attach to the volunteer attaches instead to the community organisation’. Section 36(1)(c) defines community work to include work done for the purpose of sport or recreation. The only restrictions on the application of s 37(1) are that (a) the volunteer must have been acting within the scope of the community work organised; (b) must not have been acting contrary to instructions given; and (c) must not have been under the influence of drugs or alcohol.[81] The act also defines a community organisation as any incorporated association, municipal council, local government body, body corporate or any other public authority or agency.[82]
The combined effect of these changes are clear – athletes will be required to sign their rights away before being allowed to take part in sporting activities.
To make matters more complicated, and even worse for the individual, is the Civil Liabilities Act. To date, the Act has only been passed in NSW. In Victoria, the Civil Liabilities Bill has yet to be introduced.[83] However, if it is introduced and contains the same content as the NSW version (as it is expected to), the issue of what is an obvious risk is again likely to surface. The Civil Liabilities Act 2002 (NSW) states at s 5L that (1) ‘a person [the defendant] is not liable in negligence for harm suffered by another person [the plaintiff] as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff’. Section 5L (2) states that the section applies ‘whether or not the plaintiff was aware of the risk’.
The Act does attempt to define what this section means. Section 5K defines a ‘recreational activity’ broadly as being any sport, regardless of whether it was an organised activity (s 5K(a)), any pursuit or activity engaged in for enjoyment, relaxation or leisure (s 5K(b)), and then (as a catch all), any pursuit or activity engage in at a place (such as a beach, park or other public open space) where people ordinary engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure (s 5K(c)). The act also attempts to define an ‘obvious risk’. Section 5F(1) states that an obvious risk to a person that suffers harm is ‘a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person’. Subsection (2) states that ‘obvious risks include risks that are patent or a matter of common knowledge’, subsection (3), confusingly, states that a ‘risk of something occurring can be obvious risk even though it has a low probability of occurring’, and subsection (4) states that a ‘risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to a risk) is not prominent, conspicuous or physically observable.’[84]. The act continues, stating in s 5G(1) that ‘In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk’, and in subsection (2) that ‘for the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk’.
This situation, in the opinion of the author, is almost unworkable. In the High Court, amongst the most qualified Judges in Australia, there were conflicting decisions about whether playing cricket involved an obvious risk. The legislation does little to clarify the situation, and indeed makes it more perplexing. There are many obvious questions that the legislation raises but fails to address. For example, how can a risk be obvious if the person involved was not aware of it or if it has a low chance of occurring? How can a risk that ‘is not prominent, conspicuous or physically observable’ be obvious? In Multi-Sport, would the obvious risk only exist if a full toss is bowled, but not if a bouncer is bowled? What if a Yorker were bowled – it would appear to be less risky, but perhaps no less obvious, to have a ball stub ones toe rather than having a ball fly past at head level.[85] What if the skill level of the bowler is of poor quality – does that make for less or more of a risk than a bowler that is very highly skilled, and as such more predictable? These questions are still unanswered, and are impossible to answer. The guidance offered by Woods is also minimal. Gleeson CJ is cautious of a wide definition of an ‘inherent risk’, a view in contrast with Kirby J, who felt ‘an inherent risk was any risk that could be avoided with reasonable care’ and the view of McHugh J, who felt that if a plaintiff was inexperienced, even an obvious risk would require a warning.[86] If the view of McHugh J was accepted, it would make the matter even more confused by meaning an inherent risk would depend less on the actual risk but more on the perception of the risk by the individual. Once again it is up to the judge to decide on a case by case basis in an area of law that is at best unclear and at worst unusable.
The obvious implications of the Wrongs and Other Acts (Public Liability Insurance Reform) Act is that there will no longer be doubt regarding what operators must provide for participants involved in recreational sporting events – an exclusion clause to sign. The practical effect of the Civil Liabilities Act, if introduced in Victoria, is not going to be great. Although the legislation can provide guidelines, in the end it will always be for the judge to decide what constitutes an obvious risk on a case by case basis.
This conclusion is unsatisfactory. Some have found solace in the fact that each case being decided on the facts, due to the absence of a clear or universal principle governing duty of care and its scope, is not such a problem due to the fact that ‘novel cases in negligence are rapidly diminishing.’[87] However, as the common law currently stands, so many factors appear to be judged on a case by case basis that the only practical option for operators is to have all players sign their rights away, despite it leaving too many vulnerable and without remedy. Even if there is a remedy available, the Act has capped it to a tiny proportion of what it could, and often should, be. Until the High Court revisits the issue and states what the requirements are regarding negligence in a sporting context, exclusion clauses will be the only option for operators that cannot reasonably be expected to know what they are required to do in order to avoid negligence.
[*] LLB Student, Deakin University, Melbourne. The author would like to thank Mr Sam Cusumano, Senior Lecturer, Deakin University and Mr James McConvill, Lecturer, Deakin University for their kind assistance given. The article was completed in July 2003. At the time that the final copy was submitted for publication (December 2003) the equivalent of the Civil Liabilities Act (NSW) had been introduced into the Victorian Parliament as the Wrongs and Other Acts (Law of Negligence) Bill, and had been passed. The assent date was 2 December 2003 and the Act came into effect on 3 December 2003. The provisions in the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic) are largely identical to those referred to in the Civil Liabilities Act 2002 (NSW).
[1] Woods v Multi-Sport Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 (‘Woods’).
[2] A full toss is a bowl that does not bounce. In this case, the ball pitched at around chest height.
[3] Woods [2002] HCA 9; (2002) 208 CLR 460, 468.
[4] Ibid. By ‘inherent risks’, French DCJ meant that the risks were, by their nature, obvious to participants.
[5] Ibid 470-1.
[6] Ibid 471.
[7] Ibid.
[8] Ibid 469.
[9] Ibid 469.
[10] Ibid 470.
[11] Ibid 470.
[12] Ibid 472.
[13] Ibid 470.
[14] Ibid 473.
[15] Ibid 473.
[16] French DCJ sought to rely on a statement made by Kirby J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431, 478 ('Romeo'), where he stated that ‘where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.’. Ironically, in his judgement Kirby J distinguished this situation with that in Romeo. However, Gleeson CJ concluded that Kirby J’s statement in Romeo was reasonably relied upon as an observation or comment rather than as a proposition of law, and as there was no error in that, it is not proper to overrule it.
[17] Woods [2002] HCA 9; (2002) 208 CLR 460, 509.
[18] Ibid 502.
[19] Ibid 477.
[20] Ibid 482 (emphasis added).
[21] On this point, McHugh J held that the court may take into account ‘legislative facts’ that the judiciary may notice. There was much discussion on this point by McHugh J and Callinan J that is not relevant to this article.
[22] Woods [2002] HCA 9; (2002) 208 CLR 460, 483.
[23] Ibid 490-1.
[24] Ibid 493. There has been some discussion regarding whether the duty owed to all entrants by an occupier is now the same. Following Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, it remains unclear whether ‘a contractual entrant is owed a higher duty, almost amounting to a guarantee of safety’. Kirby J, the only judge to deal with the issue in Woods, held that Zalunza had not abrogated the special higher duty owed to a contractual entrant.
[25] Woods [2002] HCA 9; (2002) 208 CLR 460, 494-5.
[26] Ibid 496.
[27] Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383 (‘Rootes’).
[28] Woods [2002] HCA 9; (2002) 208 CLR 460, 497.
[29] Ibid 499.
[30] Romeo (1998) 192 CLR 431. Briefly, the case looked at a situation where two girls, under the influence of alcohol, injured themselves after wondering through remote land and falling from a cliff edge. The High Court of Australia held that a duty extends only to taking reasonable care and not to prevent any and all reasonably foreseeable injury, and that the duty does not extend to risks that are obvious.
[31] Ibid 492.
[32] Rootes [1967] HCA 39; (1967) 116 CLR 383.
[33] Ibid 385.
[34] Ibid.
[35] Ibid 387.
[36] Stanley Yeo, ‘Accepted Inherent Risks Among Sporting Participants’ (2001) 9 Tort Law Review 114, 115.
[37] Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552, 600 (‘Agar’).
[38] Ibid.
[39] Woods [2002] HCA 9; (2002) 208 CLR 460, 509.
[40] See Kylie Burns, ‘Its just not cricket: The High Court, sports and legislative facts’ (2002) 10 Torts Law Journal 234.
[41] Ibid.
[42] Woods [2002] HCA 9; (2002) 208 CLR 460, 483.
[43] Ibid.
[44] Rootes [1967] HCA 39; (1967) 116 CLR 383, 383.
[45] The example given by Kirby J is that of the UK case Wooldridge v Sumner [1962] EWCA Civ 3; [1963] 2 QB 43, 57, which was later overruled by Smoldon v Whitworth [1996] TLR 249.
[46] Burns, above n 40.
[47] Woods [2002] HCA 9; (2002) 208 CLR 460, 492. Note that these ‘true values of sport’ are not defined in the judgement, but it has been suggested that they include things such as the health, mental and social benefits. See Burns, above n 40.
[48] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.
[49] See, for example, the courts' treatment of nervous shock in Tame v New South Wales, Annetts v Australian Stations Pty Limited [2002] HCA 35; (2002) 211 CLR 317 and Gifford v Strang Patrick Stevedoring Pty Ltd [2001] NSWCA 175; (2001) 51 NSWLR 606.
[50] Kumaralingam Amirthalingam, ‘Duty? It’s Just Not Cricket’ (2002) 10 Tort Law Review 163, 165. See also Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588; and Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.
[51] Woods [2002] HCA 9; (2002) 208 CLR 460, 473.
[52] Agar [2001] HCA 41; (2000) 201 CLR 552, 584.
[53] In Smoldon v Whitworth, above n 46, a referee was found liable for failing to break up a scrum that eventually collapsed and caused injury. Similarly, in the recent judgement of Bongiorno J in Foscolos v Footscray Youth Club [2002] VSC 148, a wrestling coach was held to be liable for failing to stop a throw in a practice match that led to Mr Foscolos becoming a quadriplegic.
[54] Woods [2002] HCA 9; (2002) 208 CLR 460, 473.
[55] Lanyon v Noosa District Junior Rugby League Football Club [2002] QCA 163.
[56] Kieran Tapsell, 'Turning the Negligence Juggernaut' (2002) 76 Australian Law Journal 581, 588.
[57] See, for example, Woods [2002] HCA 9; (2002) 208 CLR 460, 481 (McHugh J) and 488, 492 and 493 (Kirby J).
[58] Burns, above n 40.
[59] Woods [2002] HCA 9; (2002) 208 CLR 460, 493.
[60] Ibid.
[61] Ibid 484.
[62] Ibid 500.
[63] Ibid 501. The examples given by Kirby J of aspects of the game less likely to be know to an inexperienced amateur were: the confines of a smaller field, the absence of headgear and the nature of the ball used in indoor cricket. Moreover, the effect of these combined make for a situation that is particularly dangerous.
[64] Amirthalingam, above n 50, 164.
[65] Yeo, above n 35, 128-129. Yeo offers, as a general rule, the principle that rules that maintain the skill of the sport involve accepted inherent risks while rules which protect the physical safety of players involve unacceptable risks.
[66] Ibid 129.
[67] Woods [2002] HCA 9; (2002) 208 CLR 460, 470.
[68] Ibid 510.
[69] Amirthalingam, above n 50, 165.
[70] Woods[2002] HCA 9; , (2000) 208 CLR 460, 509.
[71] Ibid 470. Note that McHugh J held that custom (eg that players wore helmets infrequently) was of no significance.
[72] Ibid 483.
[73] Ibid 496.
[74] Ibid 497.
[75] Stephen Smith, 'Negligence and Indoor Cricket' (2002) 76 Australian Law Journal 554, 557
[76] See Goods Act 1958 (Vic) s 97 (prior to the amendments referred to above).
[77] Note that similar changes are set to be made to the Trade Practices Act 1974 (Cth), which invalidates exclusion clauses under s 68.
[78] Section 97A(4).
[79] The amendments to the price limits were made by s 15 of the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002.
[80] Implied terms in sporting contracts are generally requirements such as a duty on the club to act reasonably, a duty to pay a reasonable amount of remuneration and a duty on an employer to provide work. More importantly, it is generally accepted that implied terms include a duty to indemnify an athlete for expenses, and also that there is a duty of care provided by the employer.
[81] See ss 38(1)(a)(i), 38(1)(a)(ii) and 38(1)(b).
[82] See s 34.
[83] There were plans to have the bill introduced already. See comments made in the Victorian Hansard by Asher during the second reading of the Wrongs and Other Acts (Public Liability Insurance Reform) Act on 8 October 2002 on page 304, and comments again made by Asher on 5 June 2002 at page 2134 criticising the Victorian government for not acting as quickly as the NSW Government in introducing a Civil Liabilities Bill. There was also support for Victoria to examine the NSW model Civil Liability Bill in comments made by McIntosh on 5 June 2002 at page 2145.
[84] These sections are identical to those in the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic) with the addition in the Victorian legislation of a subsection (5) stating ‘To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk’.
[85] A full-toss, yorker and bouncer are different types of bowling that vary the position that the ball bounces, and hence the height that the ball is when it reaches the player. Note that in Woods [2002] HCA 9; (2002) 208 CLR 460, a full-toss was bowled at chest height.
[86] Amirthalingam, above n 50, 164-5.
[87] Ibid 167.
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