Abazovic v ACT [2003] ACTSC 15 (28 March 2003)

Last Updated: 31 March 2003

MICHAEL ABAZOVIC v AUSTRALIAN CAPITAL TERRITORY [2003] ACTSC 15 (28 March 2003)

NEGLIGENCE - appellant (plaintiff) injured due to fall caused by hole in playing field during soccer training - evidence of system of inspection - whether evidence established casual failure to adequately inspect or repair field - nature and extent of respondent's duty of care discussed.

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; [2001] 206 CLR 512

Bartels v Bankstown City Council [1999] NSW CA 129

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 60 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 28 March 2003

IN THE SUPREME COURT OF THE )

) No. SCA 60 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHAEL ABAZOVIC

Appellant

AND: AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER

Judge: Crispin J

Date: 28 March 2003

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.1. This is an appeal against a decision of Magistrate Campbell dismissing a claim for damages for personal injuries sustained in the early evening of 22 March 2000 when the appellant, who was engaged in soccer training, stepped into a hole on an oval at the District Playing Fields in Hawker and fractured his ankle.

2. It was not disputed that the respondent was the public authority with responsibility to maintain the oval or that it owed a duty of care to people, such as the plaintiff, who were conducting normal sporting activities on it. However, it denied any breach of that duty.

3. In a carefully reasoned judgment her Worship analysed the evidence, found that she was unable to determine how long the hole had been present prior to the accident and concluded that no breach of duty had been established.

4. Mr Lunney, who appeared for the appellant, did not suggest that the reasons for judgment betrayed any misapprehension as to the salient facts or the relevant legal principles, but submitted that her Worship had fallen into error by failing to infer negligence from evidence that had been adduced by the respondent in defence of the claim.

5. Mr Ware, the Supervisor of Sports and Recreation of City Scape Services, had given evidence of a mowing program pursuant to which an area of some five hectares on the Hawker field should have been mown on Friday, 17 March 2000 and Wednesday, 22 March 2000, which was, of course, the day of the accident. He said that the person mowing the field would have been sitting on his or her machine at a point about 2 metres above the ground and travelling at about 8 kilometres per hour. The person would have been looking out for any "problems" with the field and, in particular, any objects or obstacles capable of damaging the mower, such as glass bottles or large sections or boggy or muddy ground. If a person mowing the field had noticed a fault which he or she was unable to rectify, such as large sections or boggy ground, he or she would "typically" have contacted Mr Ware by telephone so that he could arrange for rectification.

6. Mr Ware also said that he had personally inspected the field once every four weeks and that, in doing so, he had looked for problems with the sprinklers, rubbish, glass bottles and large depressions in the ground. He said that if he had found a depression of the size which he thought was evident from a photograph tendered by the appellant's counsel, he would have filled it with soil. He said, however, that the soil would have needed time to bond and consolidate with the existing soil and during the interim, it could have been scuffed out by subsequent users of the field and a similar depression formed.

7. Mr Ashcroft, the Technical Manager of Sportsgrounds for Canberra Urban Parks and Places, gave evidence that a formal inspection of the field was conducted every four weeks by a ranger and that informal inspections were carried out daily. The informal inspections were conducted all year round and took place between 1.30 pm and 10.30 pm on weekdays.

8. This evidence had been adduced by the respondent with a view to establishing that there could have been no hole in the field at the time of the accident. However, Mr Lunney submitted that, once her Worship accepted evidence adduced by the plaintiff as to the existence of the hole, the evidence given by Messrs Ware and Ashcroft effectively established the appellant's case. He contended that her Worship had been bound to draw an inference that inspections must have been carried out so negligently that they failed to detect a hole that the plaintiff had described as being about 30 centimetres long, about the same across and about 10 centimetres deep.

9. Mr Lunney argued that it was unlikely that the hole had been caused after both the mowing of the oval and the informal inspection of a ranger, each of which should have occurred on the very day of the accident. It was more likely that the hole had been present for a substantial period of time but either not detected by the inspections or ignored. Any suggestion that the hole would have been noticed and rectified if it had been present by the time of the last inspection could be effectively discounted because the photograph tendered by the appellant revealed that the hole was still present a fortnight later and had obviously not been detected by any of the inspections carried out during the intervening period.

10. On the other hand, Mr Whybrow who appeared for the respondent, submitted that her Worship had obviously been correct in observing that evidence of inspections carried out after the accident could not prove that the hole had been present for any substantial period of time prior to the accident.

11. Mr Whybrow also challenged the contention that the hole could not have been discovered or been subject to remedial work prior to being photographed by the plaintiff. He argued that soil may have been placed in the hole but subsequently scuffed out. Mr Ware had given evidence that the hole revealed in the photographs was 16 centimetres wide and 8 centimetres deep. He had volunteered the statement that these dimensions "would have been scaled off the photographs ...". It is by no means clear how this could have been done, but his evidence concerning the dimensions was not challenged in cross-examination. Mr Whybrow also pointed out that the hole appeared to have been located on or near the goal line and suggested that this was a position in which some scuffing of the ground might be expected. He argued that, even if there had been a failure to discover or rectify the hole, that would not, of itself, have established any breach of a duty of care to people such as the plaintiff who were using the field.

12. In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; [2001] 206 CLR 512 the High Court of Australia discussed the potential liability of highway authorities for accidents arising from the state of the roadway. Gaudron, McHugh and Gummow JJ, at 577 [150], provided a concise statement of the relevant principles:

Where the state of the roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be expected to exist.

13. Her Worship accepted, in my view correctly, that these principles also applied to the maintenance of playing fields within the Australian Capital Territory though, of course, their application might vary according to the nature of the area in question. So applied, they clearly gave rise to a duty to take reasonable steps to ascertain the existence of latent dangers arising from the state of such fields and, if any such dangers were thereby discovered, to take reasonable steps within a reasonable time to address the risk.

14. Mr Whybrow submitted that there was ample evidence of the respondent having taken reasonable steps to ascertain the existence of any latent dangers on the field. No public authority could have been expected to have implemented a more expensive system of inspections than those described by Messrs Ware and Ashcroft. No system is perfect and the mere fact that a hole was not detected does not, of itself, demonstrate that the system was insufficient to discharge the authority's duty. Furthermore, even if there were grounds for concluding that the hole should have been discovered, that would not, of itself, warrant a finding of negligence but only an inference that the respondent had had a further duty to take reasonable steps within reasonable time to address the risk of injury arising from the presence of the hole.

15. In the present case, it seems clear that the field was in poor condition. The plaintiff offered the description, "very patchy, like, mounds everywhere, there's holes, the lines actually that mark out the oval, they're very deep and it's basically mud". He added, "mud patches here and there and there was no grass in a lot of areas". Mr Tobin, who was with the plaintiff at the time of the accident, said that he had seen "a bit of a pot-hole" and explained that the ground "was pretty decimated around that whole area".

16. The evidence as to the muddy nature of the field obviously makes it more difficult to discount the possibility that significant damage may have been caused by matches played after the last inspection. Furthermore, whilst it may have been obvious to an observer that the condition of the field had generally deteriorated, the muddy conditions may have made it more difficult for such an observer to have noticed a particular hole. There was no evidence as to the weather on the day in question and it is unclear whether the mud was caused by rain falling on that day or some earlier period. Hence, it is impossible to say whether rain was falling at the time of the inspection or whether any water might have been laying in the hole.

17. In the course of her judgment, her Worship also referred to the decision of the New South Wales Court of Appeal in Bartels v Bankstown City Council [1999] NSW CA 129, which was another case involving an injury sustained by a soccer player when she fell in a hole on a playing field. The Court observed that:

It would be wrong to require a council to provide playing surfaces of the quality of the Sydney Football Stadium, the Sydney Cricket Ground, the Olympic Stadium, and perhaps some others, for games such as were played on the day the appellant was injured. In the nature of things, playing surfaces used for those games will have degrees of unevenness in them. But desirably they ought not to have holes of the size of the one which existed in the present case (per Sheppard AJA at par 45).

18. In that case, Sheppard AJA, with whom Priestly JA and Stein JA agreed, observed that the hole had been 33 to 34 centimetres wide, which was, of course, approximately the same width as the hole with which her Worship was concerned in the present case. Whilst it was only about 4 to 5 centimetres deep, that was sufficient to cause a similar injury when Ms Bartel's foot became caught in it.

19. His Honour observed that no standard of perfection had been imposed upon the Council and that its duty had been only to act reasonably in all the circumstances. He then referred to various aspects of the evidence relating to that accident, observing in passing that one could speculate that the hole in question had been earlier filled and that the filling had not been sufficiently compacted so that it was gradually kicked or moved out of the hole, leaving it exposed again. His Honour, at par 49, then continued:

In all those circumstances it is very difficult to infer that the presence of the hole was the result of a casual act of negligence consisting of a failure to find the hole on one of the regular inspections which took place. It could not be correct to infer that the presence of any hole of the size of this one was without more an indication of a breach of a duty of care. If one took that view, one would be effectively imposing on the Council an absolute duty to ensure that there were no holes at all on its grounds. This would impose a standard of perfection which, in my opinion, the law does not require. In a playing field of this quality the best the Council can do is to have in place a system which is likely to result in holes being found. The fact that [the Council's technical overseer] conceded that holes might escape attention does not itself mean the system which was in place had not been followed or was itself deficient.

20. It is true, of course, that there were some significant differences between the two cases. In particular, as I have mentioned, there was evidence that the field upon which the respondent was injured was muddy and in a generally poor condition. However, I am unable to accept Mr Lunney's submission that the evidence was sufficient to prove that the appellant's injuries were attributable to a breach of the respondent's duty of care.

21. There are, in my opinion, too many questions that remain unanswered. Was the hole present at the time the earlier inspections occurred? Was the relevant area of ground "basically mud" and/or "pretty decimated" at that time? Was it still raining? Was the inspection due on the day of the accident cancelled or limited due to the weather? Did mud, rain and perhaps, water in the hole, make it understandable that an inspecting officer might have overlooked it? If rain was still falling, or more rain seemed imminent, might the inspector have reasonably concluded that there was no point in attempting to put soil in the hole only to have it washed out again? Might the inspector have reasonably concluded that it would be better to wait until the area had dried out before attempting remedial work? Might the inspector have, in fact, attempted to repair the hole by putting further soil into it, only to have some of that soil subsequently washed out or scuffed out during play? Might that explain why the hole depicted in the photograph was, in Mr Ware's opinion, only 16 centimetres wide and 8 centimetres deep, when the hole that existed at the time of the accident was, according to the appellant and Mr Ingram, about 30 centimetres wide and 10 centimetres deep? How would the magnitude of any risk have appeared to a person in the position of such an inspector at such a time?

22. As I have mentioned, no record was made of the informal inspections conducted on a daily basis and it was not suggested that any inference could be drawn against the respondent by reason of its' failure to call those who might have conducted inspections on the date of the accident or during the days prior to the accident if, indeed, it had been possible to identify those people. In the end result, the Court was left with no real evidence concerning any of these issues. Hence, in some respects at least, the difficulties which the appellant faced in seeking to establish a breach of duty on the part of the respondent exceeded those faced by the plaintiff in Brodie v Bankstown City Council.

23. In dismissing the appellant's claim her Worship stated:

In light of the evidence of the number of regular inspections, both formal and informal, undertaken of the oval, the records kept in relation to them and the large number of grounds for which the defendant has responsibility to maintain I am not satisfied that the defendant did not act reasonably in the circumstances. There is no evidence as to how long the hole was in existence prior to the accident nor is there any suggestion that there was a failure by the defendant to act on a complaint in relation to it. The plaintiff had the misfortune to trip in a hole and I find that that unfortunate fall was an accident. It was not the fault of the defendant.

24. Despite Mr Lunney's careful analysis of the evidence, I can see no ground upon which her Worship's findings could be impugned. On the contrary, I agree with her conclusion that the evidence did not establish any breach of duty on the part of the respondent. The appeal must be dismissed.

25. I will hear Counsel as to costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 28 March 2003

Counsel for the appellant: Mr G Lunney

Solicitor for the appellant: Higgins Solicitors

Counsel for the respondent: Mr S Whybrow

Solicitor for the respondent: Sparke Helmore

Date of hearing: 13 March 2003

Date of judgment: 28 March 2003