The case reinforces the importance of adequate risk management and effective delegation of any duty of care which might be owed by Councils to users of their facilities.
At a Victorian amateur football game in the winter of 2009, a young, albeit tall and athletic, suburban football player, flying for a mark near the boundary line, landed catching his left boot on the cyclone wire fencing surrounding the ground. The player severely injured his left knee and was subsequently awarded $589,525 in compensation together with interest.
Council failed to take reasonable care
On appeal, the Victorian Supreme Court of Appeal confirmed the Bayside City Council (Council), one of three defendants, was negligent in that it had failed to take reasonable care to ensure that a boundary line was marked at a sufficiently safe distance from the fence. The Council was found liable to contribute 40% of the damages payable.
In Victoria, rule 73(i) of the Victorian Amateur Football Association Rules (VFAR Rules) provides that at a ground that is fully enclosed by a fence, the distance between the marked boundary line and the fence at all points must be at least three (3) metres.
Whose duty of care was it?
The Council was the owner and occupier of the reserve, although they had entered into a ground occupancy agreement with the Beaumaris Football Club (Club). The agreement granted the Club permission to occupy and use the reserve as a licensee. Pursuant to the conditions of occupancy incorporated into the agreement, the Club had the responsibility for marking the position of the boundary line on the reserve.
At trial, the Council contended that it had delegated any duty of care it owed to the Club and the South Metro Junior Football League. Evidence was lead that the Council had control, management or ownership of 42 sports grounds, and that if Council were to take over the responsibility of line marking, it would be at considerable cost. In any event, it was not the Council’s responsibility to check boundary lines and fences on any of those grounds.
It was found that in 2002 the Council adopted a document – referred to as the Geelong Protocol – relating to ground inspections, which contained an item “Check and measure boundary markings to compliance with Association regulations/guidelines – random check”. The document was primarily used as a method of rating the various grounds and reserves, but the boundary line checks referred to in the document were never carried out although Council staff had inspected the reserve in March, April, May and June 2009. The item was subsequently removed from the form in 2010.
Although there was a risk management plan in place, the Court determined the Council had taken no steps to enforce it. This, in the Court’s view, did not amount to an effective delegation of its duty of care.
The Court found the Council had not taken adequate steps to ensure the boundary marking was done in a manner that would reduce the risk of injury. It was found that –
- the Council was located 10 minutes from the reserve;
- council had a key to the reserve;
- it did not supervise the line marking work;
- it had inspected the reserve multiple times in 2009, but had not checked the boundary markings as indicated on the Geelong Protocol;
- Its staff were unfamiliar with the applicable risk management policy;
- no parks management procedure or policy which would protect users of a football ground from a boundary line too close to a fence was in place; and
- the requirement to check boundary markings had been removed from the Geelong Protocol in 2010.
Although the case was constructed largely from circumstantial evidence, the Appeal Court considered that the probable conclusion from the evidence was that, at the point where the accident occurred, the fence was less than the safe prescribed distance of three (3) metres.
Nationally, the AFL Preferred Facility Guidelines for State, Regional and Local Facilities recommend that oval fencing should allow for an adequate run-off distance from the playing field boundary line and recommends 5m for State league games, 4m for regional games and 3m for local games.
In Western Australia, the Department of Local Government, Sport and Cultural Industries recommends a 3m run-off for junior games. Where fencing is present a 5m run-off is recommended. In relation to existing facilities, the recommended minimum distances are 5m for the State league, 4m for regional and 3m for local level games. It is recommended that new facilities be constructed with a run-off distance of 5m where possible.
Councils will now need to consider the environment in which football games are played and the circumstances in which they are played. This includes giving consideration to players being pushed towards the boundary line, running at full pace towards the boundary line, and taking marks within the vicinity of the boundary line, in order to ensure there is a sufficiently safe distance between the boundary line and any fence.
The case reinforces the importance of adequate risk management and effective delegation of any duty of care which might be owed by councils to users of their facilities. These measures should also provide sufficient protection to those with Nic Naitanui-like skills amongst us.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.