Woods v Multi-Sport Holdings Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh J,Kirby J,Hayne J,Callinan J
• Judgment Date: 07 March 2002
• Neutral Citation: [2002] HCA 9,2002-0307 HCA C
• Court: High Court
• Docket Number: P93/2000
• Date: 07 March 2002

[2002] HCA 9

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ

P93/2000

Michael Brett Woods

Appellant

and

Multi-Sport Holdings Pty Ltd

Respondent

Woods v Multi-Sport Holdings Pty Ltd

Negligence — Occupier's liability — Duty of care — Eye injury suffered by player of indoor cricket — Failure to provide protective helmet — Failure to warn of specific risk of eye injury — Whether conduct of occupier reasonable in the circumstances — Relevance of industry practice and rules of game — Relevance of obviousness of risk — Voluntary assumption of risk — Causation of damage.

1 Gleeson CJ. The appellant suffered serious injury to an eye while playing indoor cricket. The game was being played at a facility, owned and operated, as a business, by the respondent. The respondent organised the game in which the appellant was playing, and provided the equipment used by the players. The equipment included bats, balls, thin hand gloves, and groin protectors, but not helmets or pads. The appellant sued for damages in the District Court of Western Australia. Although various causes of action were pleaded, the claim was ultimately treated as founded in negligence. The trial judge, French DCJ accepted that the respondent owed a duty of care to the appellant. Indeed, the existence of a duty was not in dispute; it was the content of the duty and, in particular, whether there had been a breach of duty, that was the principal area of contention. French DCJ considered that, because the respondent organised and controlled the games that were played at its facility, its responsibility to players went beyond the state of the premises. It had a duty under the Occupiers' Liability Act 1985 (WA) but it also had a wider duty to ‘take reasonable steps to avoid the risk of injury to players arising from the dangers involved in playing indoor cricket’. That formulation of the duty was not challenged in argument in this Court. The argument was about the steps the respondent ought reasonably to have taken. If the trial had been before a judge and jury, that would have been a question for the jury to decide as the tribunal of fact. There was no jury, and the issue was one for the trial judge. But it was one for her factual judgment, in the light of the circumstances of the case.

Gleeson CJ

2 There were two respects in which it was ultimately contended that the respondent had failed to take reasonable steps to avoid the risk of injury to players, including the appellant. The trial judge concluded that in neither respect had there been any such failure, because reasonableness did not require those steps to be taken. In brief, she accepted the appellant's case as to the duty of care, but rejected the allegation that there had been a breach of duty. That conclusion was upheld by the Full Court of the Supreme Court of Western Australia 1.

3 In order to explain the basis of the trial judge's reasoning it is convenient to begin by referring to some of the evidence about the sport of indoor cricket.

Indoor cricket

4 Indoor cricket was introduced to Western Australia in 1979. There are about 250 indoor cricket centres in Australia. It is played by about 120,000 people in Australia, and by about 12,500 in Western Australia.

5 Although, as its name suggests, the sport is derived from, and has similarities to, cricket, there are also differences, and it would be wrong to assume that it is played in a manner that resembles what takes place in a suburban or country park on a Saturday or Sunday afternoon in summer.

6 Mr Lewis, the vice-president of the Australian Indoor Cricket Federation (AICF), and former coach of the Australian team which competes for the World Cup, gave evidence. The game is played as a contest between two teams, ordinarily composed of eight persons each. It is played in what is called a court; the average size of a court being 28 to 30 metres long and 10.5 to 12 metres wide. At any given time there are 10 players on the court; two from the batting team and eight (including a bowler) from the fielding team. The court is separated into two sections. In one half, there are the wicket-keeper and three other fielders. In the other half there are the bowler and three other fielders. This is a body contact sport, involving what Mr Lewis called ‘clashing’. There is a good deal of diving by both fielders and batters, who throw themselves onto, and slide along, a synthetic carpet, as they seek to field the ball, or make runs, as the case may be. The prevalence of diving and sliding is significant in considering a suggestion that players should wear helmets with metal grills protruding some distance from their faces. So frequent are collisions, that there are rules which prescribe who has right of way. Because the game is played at a fast pace, in a confined space, there is not only a high risk of collision between players, there is also a danger of players being struck by the ball. As in any game of cricket, a batsman will sometimes seek to hit the ball as hard as possible, and, if a fielder gets in the way, injury is a possible consequence.

7 One of the medical witnesses called for the appellant gave evidence of a report he had prepared about eye injuries, and the possibility of protective measures, in indoor cricket. The trial judge summarised part of the report as follows:

‘The fact that … indoor cricket is played in such a confined space makes proximity a major factor with little time to react to avoid impact with the ball. The report also notes that tests have indicated that eye protection where available for rac[qu]et sports is not able to withstand the impact of an indoor cricket ball. It is therefore considered that only full face cricket helmets would be adequate for eye protection in playing indoor cricket. It also notes that because of the proximity of players every player in an indoor cricket field would need to wear a full face batting helmet.’ (emphasis added)

8 The ball with which indoor cricket is played is similar in size and weight to an outdoor cricket ball, but not as hard. In some respects it is less likely to cause injury, but because it is softer than an ordinary cricket ball, it can mould into the shape of the eye socket when it strikes the socket at speed. The medical evidence was that, in this way, more force is directly transmitted to the eye causing ocular injury as compared with the standard cricket ball which causes more damage to the bone surrounding the orbit. Being struck in the eye by any cricket ball can result in serious injury, but the particular kind of injury likely to result from being struck by an ordinary cricket ball is in some respects different from the kind of injury likely to result from being struck by an indoor cricket ball.

9 Dr McAllister, an ophthalmologist who treated the appellant, said:

‘Most of the force with a hard ball is transmitted to the bony rim surrounding the orbit and whilst it might cause fractures to the orbit itself, the eye itself would be more protected. A ball like [the indoor cricket ball], when it hits the bony orbit, part of the piece that strikes the orbit will deform and that will extend into the orbit and compress the eye more than a hard ball would. So I guess the softer a ball of this size gets, given that it still weighs the same, it would probably be likely to cause a little more damage.’ (emphasis added)

10 There was no medical evidence that the harm which the appellant suffered would have been materially different had he been struck by an outdoor cricket ball rather than an indoor cricket ball.

11 Dr McAllister, who is head of the Ophthalmology Department of Royal Perth Hospital, said that most of the major eye injuries suffered in Western Australia as a result of trauma were referred to him. He estimated that over 10 years he would have seen approximately 20 significant eye injuries arising from accidents in indoor cricket. He did not attempt to distinguish between batsmen and fielders. The trial judge recorded that the witness ‘conceded that on the basis that there are approximately 12,500 people playing indoor cricket in Western Australia … this was not a high percentage but … his concern was that in his opinion the injuries were preventable’. The significance of a figure of an average of two serious eye injuries per year in a population of 12,500 players was a matter for the trial judge to weigh.

12 The appellant, in his evidence, agreed that he was aware that in playing cricket, outdoors or indoors, either as a batsman or as a fielder, there was a risk of being struck in the head by a ball. French DCJ found that ‘he was well aware at the time that there was a risk of being hit with the ball’. The same, of course, would have applied to the officers and employees of the respondent.

13 The evidence did not go into detail concerning the risks of injury, other than eye injury, involved in playing indoor cricket. It is, however, plain that there are many such risks. A player, whether a batsman or a fielder, could be struck, very hard, by a ball, on any part of the body. The risk is substantially increased by the confined space in which, and the speed at which, the game is played, and the way in which players dive, slide and collide. And, of course, as in many other sports, players can injure themselves, perhaps severely, by reason of the physical effort they put into the activity and the strain it imposes on their bodies. There was no evidence as to the number or severity of back injuries suffered by indoor cricket players, but the possibility of serious back injury also seems plain.

The injury to the appellant

14 At the time of his injury, the appellant was aged 32. He was an experienced cricketer, who played outdoor club cricket weekly. He had played indoor cricket only once before the day...