Woods v Multi-Sport Holdings Pty Ltd P93/2000 [2001] HCATrans 532 (22 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P93 of 2000

B e t w e e n -

MICHAEL BRETT WOODS

Appellant

and

MULTI-SPORT HOLDINGS PTY LTD

Respondent

GLEESON CJ

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 22 OCTOBER 2001, AT 2.14 PM

Copyright in the High Court of Australia

MR B.S. SPINKS: May it please your Honours, I appear on behalf of the appellant. (instructed by Marks & Sands)

MR R.J.L. McCORMACK: May it please your Honours, I appear for the respondent. (instructed by Srdarov Richards Burton)

GLEESON CJ: Yes, Mr Spinks.

MR SPINKS: Your Honours, I do not propose to take you through my written submissions again, but I do want to expand on a couple of the important points that I think need to be explored by this Court. I think the first point, your Honours, is if I could take you to page 214 of the appeal book.

McHUGH J: What are you taking us to this page for?

MR SPINKS: Well, your Honours - - -

KIRBY J: Is this your great theme of the case?

MR SPINKS: It is part of it, your Honour. The point is that - - -

KIRBY J: What is your great theme of the case?

MR SPINKS: Well, there are two parts to my case - - -

KIRBY J: What is the important point?

MR SPINKS: The important point, in so far as it relates to the wearing of helmets, is that this was a private company, an organisation that was involved in the provision of recreational services for profit. It, by its own choice, decided to join a federation through its directors. It then, voluntarily, by doing that, elected to be bound by a set of rules, and one of those rules was that they could not allow people playing indoor cricket to wear helmets. The difficulty with that is that it allowed the defendant to modify its standard of care by reference to the rules it, in effect, made up for itself.

GLEESON CJ: On pages 507 and 508, the trial judge found, rightly or wrongly, that there were good reasons for not wearing helmets when you play indoor cricket. Now, you seem to have concurrent findings against you on that point.

MR SPINKS: Your Honour, my submission on that point is that we reject that finding for reasons set out in the written submissions - it is a primary point. But the secondary point is: I find it difficult to discern from her Honour's judgment whether she is saying her finding was, on the basis of the evidence, helmets could not be worn, or what she was saying was, the rules reflected a concern that helmets could not be worn, and that is why she was finding that they could not be worn.

GLEESON CJ: I thought she was saying, in effect, the fact that it is not the practice to wear helmets when indoor cricket is being played is not a result of some chance or some whimsical decision, there are good reasons for it.

MR SPINKS: Your Honour, if I could refer you to page 512 which is the latter part of her judgment in respect of helmets. In fact, she found the opposite. She said:

Because of this significant constraint it is difficult to draw any analogy with a situation where there may be a failure to take reasonable care despite the fact that there is compliance with a common and acceptable practice . . . In this case it is not a matter of following the "example" of the AICF and other centres but the reality of the constraints that are imposed because the centre was operating within the AICF rules.

The difficulty with that finding is that it leaves the defendant in an advantageous situation as opposed to, say, an indoor cricket centre that did not join the federation and did not elect to be bound by its rules.

GLEESON CJ: Can I just clear up one matter of fact, Mr Spinks. I was not sure about this from the judgments. Did the respondent company organise the competition in which your client was playing?

MR SPINKS: As at the date of the trial, the facts were that the only games played at the respondent company's premises were games organised by it, through its own advertising. At stages in the past, they did have one game a week on Sunday where they would organise a team from within their centre to go and play another team. But apart from that one game, they were in complete control of all aspects of the game. So in that respect, there was no significant constraint, I suppose, is the appellant's case, that the only constraint imposed on them was the constraint they elected to impose on themselves by joining the federation, which could have been a constraint which was as easily removed as a telephone call by saying, "We are not going to join your federation; we are just going to play under our own rules".

GLEESON CJ: The ultimate finding about this is at page 510, in the paragraph with the number 4 alongside it. Now, when her Honour refers to, "the status of the wearing of a helmet in the game of indoor cricket", she is referring to the practice, and the reasons for the practice, that she has been examining on the previous pages. Is that not so?

MR SPINKS: Your Honour, if it was not for the comments on page 512, where she says:

it is difficult to draw any analogy with a situation where there may be a failure to take reasonable care despite the fact that there is compliance with a common and acceptable practice in a particular area of human conduct -

she is saying, it is not a matter of following example. She is saying, it is the reality of the constraints imposed by the rules on that centre. The only conclusion you could draw from that: that was a significant fact which impressed upon the trial judge's mind when she decided to say, "it is not reasonable to provide helmets".

GLEESON CJ: But if you look at those rules, they say, do they not, actually, not only that you do not have to wear a helmet, but that you need special permission to be allowed to wear a helmet.

MR SPINKS: There were two sets of rules - - -

GLEESON CJ: Because of the danger to other players.

MR SPINKS: In that respect, I could only reiterate what I have stated in the outline of submissions and that is that there was, in fact, no evidence that anybody could be injured by a person wearing a helmet. The only evidence that was given in that respect was from an indoor cricket centre owner who came up on the day and said, "Listen, in my opinion, that indoor cricket helmet could not be worn. When asked why, he gave a variety of reasons. They were essentially fourfold. The first was that he did not like the hardness of the helmet, the actual part covering the head. Whereas the expert called on our behalf, who was a competent and experienced professional, who was an eye surgeon, and had undertaken testing himself, using a radar gun, an indoor cricket helmet - he said that the hardness of the helmet was actually a safety feature, because the impacting force on a person is calculated by reference to a simple formula which analyses the surface area of what is contacting you, and because the helmet had a greater surface area than your head, it would actually protect you in a collision. Now, the next point was, because it had a visor which stuck out from the front of it.

McHUGH J: What is the basis of her Honour's statement at 511, line 2?

While the injuries sustained in a collision may not generally be as serious as an eye injury the frequency is certainly likely to be much higher.

Is that a matter of which she has taken judicial notice? Or is there evidence to that - - -

MR SPINKS: Your Honour, in our submission, there is no evidence, because no one had ever worn a helmet in indoor cricket. So there was no possibility of anybody making an assessment of that. I think that the better evidence was put - - -

GLEESON CJ: It is not entirely true that no one had ever worn a helmet. I thought somebody who had suffered a nose injury had special permission to be allowed to wear a helmet.

MR SPINKS: Yes, that is correct. On a rare occasion. I think the point of the appeal is really - I think it is important to note that we are not saying it be compulsory. We are not saying, "You should have to wear a helmet". We are just saying, "They said they would provide the equipment; you paid, you turned up", and then they would not allow somebody to allow a helmet. Not only would they not supply one, they would not allow you to wear one. If you look at the evidence of Dr Anderson who quoted a worldwide study on the wearing of helmets, and drawing on his own personal experiences as a leading medical practitioner here in Western Australia, he looked at the helmet and he said, "If there is a risk of injury from wearing a helmet, it must be so small, because in a study in the entire North American continent, there was not one recorded incident of a person injured by a person wearing a helmet." He brought a textbook along.

He said the only time anyone had ever made a complaint about wearing a helmet was in American gridiron, where people were complaining of neck injuries, but he said, about that time, they had introduced a spear tackle and it was coincidental. They got rid of the spear tackle; the neck injuries went. But if you read through his evidence, he is resolute on that point. He says, "If there is a risk posed by this helmet, it is so small, because" he has "never heard - there has never been a situation of someone being injured by a helmet". Her Honour disregarded that evidence, even though, in my submission, it was the only expert evidence put before the court in respect of the dangers of wearing a helmet.

The second interesting point was that her Honour was concerned by the fact that the helmet had a visor, and you may run into somebody and cause injury by this visor. Now, the obvious was pointed out, and that was that people wear helmets with visors in outdoor cricket, and at times you have a lot of people fielding close in, and there are collisions. People wear visors in lacrosse, which is a body contact sport. There has never been an occurrence of an injury. People wear helmets in ice hockey all through North America - never been an injury. But for some reason, indoor cricket is so different, Mr Lewis said, that you could not wear helmets. Whereas Dr Anderson was the only person who had done any testing and analysed the studies in respect of wearing helmets, said, "No", he said - - -

GLEESON CJ: Is indoor cricket still played without helmets?

MR SPINKS: Yes.

GLEESON CJ: To this day?

MR SPINKS: To my knowledge. The important point was, Mr Lewis was asked twice whether he had performed any testing, and twice he said, no. At 287 of the appeal book, he was asked if he was speculating. He became quite irate at that. He thought it was a form of abuse. But when it was pointed out that it was just a word which meant, "Were you forming an opinion?", he agreed. He agreed that he was not speaking on behalf of the AICF or the WAICF, he said: I am not speaking on behalf of the 50 or so other delegates; I am just here voicing my own personal opinion. No testing, nothing. As a point, your Honour, I can refer you to a case, The Crown v Smith where it was stated that, "In examining the question of someone's expertise it is important to ensure that the expert's opinion is not speculation, but has progressed to a stage where a sufficient level of investigation, research or analysis has been considered to justify the matter." Whereas Mr Lewis could not put anything up, other than observations of being an indoor cricket centre owner and an indoor cricket centre player.

GLEESON CJ: You are not suggesting that the respondent should have made helmets compulsory?

MR SPINKS: Not at all.

GLEESON CJ: You are suggesting, as I understand it, that notwithstanding the AICF rules, they should have made helmets available to someone who wanted to wear them.

MR SPINKS: The trial judge found, as a finding of fact, my client would have worn a helmet if it was there.

GLEESON CJ: And your argument is that notwithstanding the AICF rules, such a helmet should have been provided. What would that have done to the status of the competition the respondent was conducting?

MR SPINKS: As at the date of the trial, they were not involved in any competition with another centre. The misunderstanding of this case is this. Indoor cricket centre is not a part of a greater organisation like a normal sporting organisation. There is no ownership or rights to run an indoor cricket centre. I could go out tomorrow, start up an indoor cricket centre, advertise, get a few teams together, and run my competition. That is what the defendant did. There were four centres in WA, as found by her Honour, that were not a member of the AICF, that did not use their rules. They just played their own competitions. So had they decided to provide helmets to people on the premises, it would have made no impact whatsoever. They would have just continued organising games within their centre.

It may have had some impact on the one game they played on Sunday against other centres, but my client was not involved in that. In any event, as at the date of the trial, they were not even playing those games any more, which points out what an insignificant part of the business that one game a week was. In fact, as at the date of the trial, the defendant said that he had not been to an AICF meeting for 10 months, because it was irrelevant to his centre. They only spoke about the Sunday match that they played amongst each other. So the point is, as I point out in my submissions, the defendant had complete control over every aspect of the games that took place on their centre. It was that level of control which, in our submission, entitled them to do as they pleased.

McHUGH J: Ice hockey players wear helmets, and they are knocking each other over all the time. Is there any evidence about injuries from the use of the helmet in ice hockey?

MR SPINKS: Your Honours, if I could take you to page 323 of the appeal book. The second paragraph at the top of the page is the answer by Dr Anderson. He says this:

In relation to ice hockey, there have been no incidents of injuries caused by the face mask either to the wearer or to another player who was not wearing a protector, and that's a report from the whole of America and Canada. They don't have a case of an eye injury in a contact sport from a helmet where the helmets are worn routinely.

Now, that answer seems to be caged in terms of eye injuries, but he does go on. At the bottom of the page, he says:

As far as eye and head injuries are concerned, there's no question that the helmet would make it very much safer and, as I have said, I'm unaware of any reports of injuries related to helmets so I obviously must feel that there's much greater protection by wearing a helmet than not.

Then he goes on. There is a minor concern to him. On page 324, he says, "I think if the visor was removed, then it would probably be more than adequate." If I refer you to her Honour - it is in the transcript - in an exchange with then counsel for the plaintiff, page 305, said, "I think we can take it as accepted that there are helmets without visors." So her Honour herself said, you can find a helmet without a visor.

McHUGH J: Well, Dr Anderson said, you do not really need it in indoor cricket.

MR SPINKS: That is right. Her Honour accepted there were helmets without visors. It was not necessary to examine every sport helmet know to man. It was accepted by her Honour at that point. So the difficulty with the case - - -

KIRBY J: Is it disclosed whether the helmets came into ice hockey as a result of any litigation or cases in Canada or the United States?

MR SPINKS: She did not, but Dr Anderson made the point at page 325 that they looked at the professional ice hockey player over the course of their life, and 97 per cent of them suffered a serious eye injury:

Following the introduction of helmets, that rate has dropped to virtually zero.

Combined with the findings that no one had ever suffered an injury from someone else wearing a helmet, it is pretty compelling evidence in favour of the plaintiff.

So the difficulty is that, when you examine the evidence of Dr Anderson, in the context of what her Honour said, you can only draw the conclusion that her Honour was heavily influenced by the rules of indoor cricket which, as I have said, is irrelevant in the context of this case. If this was a local cricket club who only existed to play games against other cricket clubs, and had to engage in a formal, agreed standard of conduct so the very games could be played - you could not have two people turning up with their own rule books - that may be a different consideration, but this was a stand-alone organisation, who had complete control over every aspect of the operations, including whether or not to implement the rules.

CALLINAN J: Mr Spinks, was there any evidence of the genesis of the game? When it started, and how it developed, and - - -

MR SPINKS: There is, your Honour. I will - - -

CALLINAN J: Where do I find that?

MR SPINKS: I will take you to page 214 of the appeal book.

CALLINAN J: How long has it been around?

MR SPINKS: It came around in the early 1980s, and the answer as to why the game came around is best answered by a witness called on behalf of the defendant, who wanted to make a point about - there was an allegation the plaintiff had signed a disclaimer. That was something that the trial judge did not accept. He says this, at the last paragraph at page 214. He is talking about the disclaimer, but he says:

it formed two components. Indoor cricket as an industry is an industry where there were a lot of short payments and lack of commitment by teams to the competition.

And here is the genesis of the game, in the next sentence:

At the end of the day indoor cricket was originally established to take a social game to a business environment and actually turn a dollar - well, make a profit out of the industry -

So that is - - -

CALLINAN J: Well, that has certainly happened in all sports today, has it not, even rugby union

MR SPINKS: Your Honour, I think in rugby union, there would still be volunteers at some level of the spectrum. There is not one volunteer engaged in this industry. Referees are paid, centre owners are paid, everyone is paid. Mums and Dads are not coming along, cutting oranges up at half time and supplying - - -

GLEESON CJ: I do not know one way or the other, but did it develop from the days when there used to be indoor practise facilities?

MR SPINKS: I am not sure. Mr Jones, that witness, was instrumental in the development of the first centres, from what I understand, and he just said it was just an idea to make money. Someone thought it up, and they built a complex, and brought people together.

CALLINAN J: What does he mean when he says, "there were a lot of short payments and lack of commitment by teams to the competition"?

MR SPINKS: I am not sure, your Honour - - -

CALLINAN J: They were not being business-like, perhaps.

MR SPINKS: Probably just talking about - "lack of commitment by teams", I imagine, is that people did not turn up regularly, so you would constantly be out marketing for new people. I do not know what he means by "short payments". My understanding was, you paid every game as you turned up, and that was it. You did not - - -

CALLINAN J: Probably means that the owners had to get involved if they wanted teams to participate, and payment to play, possibly.

MR SPINKS: Possibly. I mean, it makes an interesting point, your Honour, because in Hyde v Agar, even though that is a duty case, you made a point. You distinguished between sport and a marketplace, and you said "This is not a marketplace, this is sport". I think the difficulty with that analogy is that this is a marketplace and sport. You could probably argue that for some people, a trip to the marketplace and a bit of shopping would be as much a form of recreation as would a game of indoor cricket. The reason why a shopping centre person has to warn about something on the floor, but an indoor cricket centre owner does not have to warn about the risks in that game, become blurred when you see both organisations for what they are.

CALLINAN J: But all physical activity, all sport - which means all physical activity, because I am talking about sports that involve physical activity - involve risk.

MR SPINKS: So much can be said for a trip to the shopping centre, I suppose. I think it could not be argued that if a person went to a shopping centre, there was not a risk that someone would spill something on the floor and they could slip on it.

CALLINAN J: But all sports involve a form of physical domination.

KIRBY J: But your point is that the law stands in to prevent unnecessary or seriously unnecessary risk.

MR SPINKS: My point is that the central unifying theme that really underpins a lot of these negligence cases is the issue of control. Control combined with an analysis of the nature of the undertaking set down by the defendants, so if it is a profit-making entity - - -

McHUGH J: Well, that goes to the question of whether a duty is owed. Here it is conceded there is a duty. The question is what is the appropriate standard of care required, it being perceived that a duty of care is owed?

MR SPINKS: I think the issue of control actually, and the nature of the defendant's activities, also goes to the standard of care. I mean, it is an often unstated fact, but if you assess the standard of care owed by a person to an independent contractor, as opposed to the standard of care owed to an employee, you would have to agree that the standard of care to the employee is higher. The reason is the degree of control is higher. So whilst control is important in establishing the very existence of a duty, it is also an important factor in establishing the standard of care. I think the contrast between the independent contractor and the employee would be a good example of that.

McHUGH J: You probably do not find it persuasive. The standard of care, apart from some exceptional cases, is reasonable care in all the circumstances of the case.

MR SPINKS: That is right, your Honours, but there are underlying and often unstated policy objectives when we are dealing with contractual entrants and private enterprise and industry. I think Justice Kirby said it better than I could in the decision of Morawski v State Rail Authority (NSW). He was considering the duty owed to an entrant pursuant to a contract, such as the present case. He tries to flesh out what the underlying policy considerations are, and he says, "The Authority secures by the payment of the fare an indirect contribution from each user of its facilities towards the cost of maintaining them in a safe condition". He goes on, and says that the reason basically is that an entrant, under a contract, should have, "the reasonable contemplation from that payment that the occupier will protect entrants by appropriate measures of accident prevention, and protect itself and the injured entrant by securing appropriate contracts of insurance."

McHUGH J: But that statement was made contrasting the duty owed to a contractual entrant with an ordinary occupier. It is a New South Wales case.

MR SPINKS: Yes.

GLEESON CJ: Well, where does that leave the owner of a squash court? If you own the squash courts and you have the facilities that are available to members of the public to come and amuse themselves by playing an obviously dangerous game - one of the most obvious dangers being having a heart attack, and another of the obvious dangers being get hit in the face by a ball or a racquet. What is the duty of the owner of the squash court?

MR SPINKS: Your Honour, my submission in that respect is that the duty is assessed on a case-by-case basis, having regard to the normal principles set out in Wyong Shire Council v Shirt.

McHUGH J: You mean, in a category-by-category case, or a specific case by case?

MR SPINKS: I think it is a case-by-case assessment of each sport and the circumstances of a person's entry and a number of - - -

KIRBY J: I do not know anything about squash. Is there anything in it that you can introduce something akin to a visor that will protect you? I would not - - -

MR SPINKS: It is compulsory in junior squash to wear eye protection equipment. So the squash - - -

GLEESON CJ: That is for juniors, but not for seniors. I played squash for 20 years without any goggles. I might have been better off with them. But there are practical reasons why people prefer to play the game without that protection.

MR SPINKS: There are many people who would prefer to play indoor cricket without the protection, and we are not arguing that they should not be entitled to do that. We are simply making the point that if someone does want to wear a helmet, the suggestion that they cannot because some body has made up a set of rules which someone elected to be bound by, would prohibit that.

GLEESON CJ: Well, that is what I was asking about, where did the actual negligence lie? You are not suggesting that they should have made it compulsory to wear a helmet. Your suggestion is they should not have complied with the rules.

MR SPINKS: Our suggestion is, they should have made a helmet available for a person - - -

GLEESON CJ: Which would be a breach of the rules.

MR SPINKS: Well, it would have been a breach of the rules, but - - -

GLEESON CJ: So their negligence lay in conforming to the rules of the AICF. Is that right?

MR SPINKS: I just say that the negligence was in failing to provide appropriate safety equipment to people entering the area, which included a helmet. Our submission always was that the rules were irrelevant to the assessment of the standard of care. What would happen if - - -

HAYNE J: But the proposition amounts to this, does it not: because they could have ordered their affairs differently, they should. Now, what is it that takes you from "could" to "should"? Of course, they could have ordered their affairs differently. They could have shut the centre down, they could have converted it into a bingo parlour. What was it that translated from "could have supplied helmets" to "should"?

MR SPINKS: Well, in our submission, it would just be an analysis of the matters, as I said before, set down in Wyong Shire Council v Shirt; that the people in control of the dangerous activity; that they enticed people to come there for reward; that there was a high level of risk. The probability of its occurrence was significant. That was a finding of fact made by the appeal court. The gravity of the injury speaks for itself and when you analyse all those factors, we say the standard of care was such that, in the circumstances, a helmet was reasonably required.

GLEESON CJ: Should they also have provided chest protectors?

MR SPINKS: That would just be analysed by reference to the principles I have just laid out.

GLEESON CJ: What would be the result of that analysis?

MR SPINKS: I am not aware of the incidence of chest injury in indoor cricket, so I could not take your Honour - - -

GLEESON CJ: There is no reason why it should be either greater or lower than the incidence of chest injury in outdoor cricket, is there?

MR SPINKS: The gravity of the harm may be something worth considering on that point. I am not quite sure the seriousness of a chest injury from being struck with a ball - - -

GLEESON CJ: It would depend on the circumstances of the individual, but if your client had missed this pull shot instead of hitting it on the edge of the bat, he would have had the ball right in the chest, as I understand the evidence.

MR SPINKS: Your Honour, I mean, I could probably answer that by posing a question myself. Should a supermarket warn about the possibility of a tin of baked beans falling on your head?

GLEESON CJ: Should it warn about every kind of harm that could befall you from the moment you enter its doors?

MR SPINKS: No. We would only apply the principles set out in Wyong Shire Council v Shirt, and that is all I am asking to be applied to this case. The difficulty is, is because the business is termed "sport", that a whole lot of other policy considerations are getting in the way, of looking at this person - - -

McHUGH J: You cannot leave out the social setting any more than, to take one of Lord Denning's examples, playing cricket on a village green in the twilight. It does not require the same standard of care on the part of those who organise it as maybe a professional competition.

KIRBY J: That decision has attracted quite a lot of criticism. It is said that, on that matter, if I could coin a phrase, "Lord Denning had a blind spot".

CALLINAN J: I played my first game of cricket on a turf wicket 56 years ago. I paid two shillings in wicket fees. People always paid something for the use of the facilities. Does that mean that I could have sued the groundsman if the wicket was not playing truly and a ball that I did not expect to rise on my leg stump rose up and struck me in the chest?

MR SPINKS: Well, your Honours, there is enumerable cases where people have been held liable for inflicting injury on somebody else in the context of the sporting event: Albany Golf Club v Carey, a person was struck by a golf ball hit by another player. He successfully sued the owners of the golf course for the positioning of the tee-off too close to the adjoining fairway.

CALLINAN J: That is a case that has not escaped criticism either.

MR SPINKS: I think, your Honours, if you look at the content of the duty of care which her Honour found to exist, which is unchallenged here today, and that was to safeguard this person against the dangers of indoor cricket, so once that duty - - -

McHUGH J: That cannot possibly be right, can it?

KIRBY J: It must have a "reasonably" somewhere in there.

MR SPINKS: It would have said, "take reasonable precautions to protect him against the dangers of indoor cricket", but the duties there - - -

HAYNE J: It might suggest to him undergoing a 12-week physical conditioning course before he was left near a game.

MR SPINKS: That probably would not be reasonable in the circumstances, but a $20 helmet - - -

HAYNE J: Well, there is the point. The fact that something could have been done takes us only so far and, for the moment, I do not understand your answer to be greater than, "Well, look, Wyong v Shirt takes me from `could' to `should'", and I do not follow that connection at the moment.

MR SPINKS: All we are saying is they took control of a dangerous activity. There was a foreseeable risk of injury. The gravity of the injury was high. The probability of occurrence was high. The method which could have been taken to avert the injury was minimal, providing a helmet. Well her Honour found there would be no financial or other reasons that would prevent someone from just putting a helmet there. So once you analyse those factors, that is the answer as to why they breached their duty of care.

McHUGH J: But it is not, and this is a mistake that is being made again and again in the law of negligence. The fact that the risk is reasonably foreseeable; the fact that it is reasonably practicable to eliminate it, does not mean that there is a breach of a duty to take reasonable care. They are factors to be weighed. Ultimately, it is a question of judgment as to whether or not, in all the circumstances of the case, reasonable care required the elimination of a risk that was reasonably foreseeable and which could have been avoided by the exercise of reasonable care. There is a judgmental issue, ultimately, in the case, and in determining that judgmental issue, one has to consider all sorts of social consequences. You could eliminate most road accidents if there was a speed limit of 5 miles per hour. But society just could not continue to operate.

MR SPINKS: Perhaps - maybe I am not articulating it clear enough, so I will read out what the Chief Justice of the High Court, Chief Justice Gibbs:

Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent.

KIRBY J: What is that case?

MR SPINKS: That was Turner v The State of South Australia (1982) 56 ALJR 839 at 840.

GLEESON CJ: Could you give that citation against, Mr Spinks.

MR SPINKS: Sorry. It was Turner v The State of South Australia [1982] 56 ALJR 839 at 840.

GLEESON CJ: Thank you.

MR SPINKS: Curiously, your Honour Justice McHugh, the judge which cited that case - that is cited in a decision which is in my book of authorities, Inverell Municipal Council v Pennington. The following paragraph of that judgment says:

To similar effect was the statement by McHugh JA in his dissenting judgment in Phillis & Anor v Daley - - -

KIRBY J: You have to put on the record the citations of these cases otherwise it is not readily available to us. What was the case of Phillis - - -

MR SPINKS: That initial case, your Honours, was - - -

McHUGH J: Phillis v Daley was the case where the fellow fell over the log, is it not?

MR SPINKS: Inverell Municipal Council & Others v Pennington Green v Others v Pennington & Others. I have managed to extract that from - - -

GLEESON CJ: (1993) Australian Tort Reports.

MR SPINKS: That is right. So in answer to your question - - -

KIRBY J: How did the trial judge deal with the North American material on ice hockey?

MR SPINKS: She did not go down that path, your Honour, perhaps because they have a separate - - -

KIRBY J: That is the linchpin of your argument, is it not, that when, in North America, they did not play indoor cricket because they disdain cricket, but when they played an equally, potentially dangerous game, without visors, 97 per cent of players, at some stage in their lives, got eye injuries, and then when they did introduce visors it fell to zero.

MR SPINKS: That is right.

KIRBY J: That is pretty strong evidence, and you say the trial judge did not deal with that at all.

MR SPINKS: The trial judge just did not seem to deal with Dr Anderson's evidence in respect of the risks of a helmet at all. That is why it is my submission that, really, she was influenced by what Mr Lewis said the underlying basis for the rules were. He was only giving his own personal opinion.

KIRBY J: So the rules of a game overrode the law of the land.

MR SPINKS: That is exactly right.

KIRBY J: That is the first time I have heard of that notion.

MR SPINKS: That is exactly what her Honour says. She says because of the significant constraints imposed on the indoor cricket centre by the AICF, it was not reasonable to provide helmets.

HAYNE J: That is a rather different proposition from the rules of the game overriding the law of the land I think, Mr Spinks, is it not?

MR SPINKS: Not in my submission, your Honour. I think if you remove the rules from the equation, then every other finding would have to point to it being reasonable that they provide helmets. They were cheap; they were available.

KIRBY J: Can it be said your client was volenti because he knew the rules, and accepted the rules, and he played by the rules, and then he cannot complain because he was injured by the rules?

MR SPINKS: Well, your Honours, I have a few things to say about that. The first point is that the rules of sport will really just set out the conduct that players will consent to in the sphere of physical harm that they could do to each other. It is sometimes said that in actions against participants or between participants inherent risks will be accepted. It is some sort of implied consent to risk. But that does not mean that a third party who has different obligations can tag along on that consent and say, "Well, I do not have to do anything either".

Now, I can give your Honours three examples, and I think the best example is the decision which is attached to my list of authorities, which was Smoldon v Witworth, and it is reported in December 18, 1996 Times Law Reports. What happened in this action was a referee was failing to control a match in accordance with the rules and a player was injured. The player sued the fellow player, Thomas Witworth, and was unsuccessful. He sued the referee and was successful. If the rules just automatically set out the conduct, one would have to say that to succeed against the referee, you would have to succeed against a fellow participant. This is what their Honours said about what looks, on the face of it, to be a conflict:

There was no inconsistency between that conclusion and that reached by the Court of Appeal in the Wooldridge and Wilks cases. The position of a referee vis-à-vis the players was not the same as that of a participant in a contest vis-à-vis a spectator.

One of his responsibilities was to safeguard the players' safety. So although the legal duty was the same, the practical content differed according to the quite different circumstances.

The point that is being made in that case is that whilst a certain level of conduct might be accepted from an opposing player, that does not mean that a person who has a positive duty, as was found in this case, can then absolve oneselve from taking any further steps by just saying, "Well, that risk was inherent, so I do not have to do anything about it". Our argument is that that rule is designed to protect players and participants, not third parties who organise activities. In my submission, your Honour, the inherent risks are the very risks that need to be guarded against.

CALLINAN J: Well, Mr Spinks, I understand that women's basketball causes more elbow and tendon injuries than literally any other sport played in Australia and that that is very well known. What should be done about that?

MR SPINKS: Well, your Honour, it would just be, as I said, an analysis of - it is a case-by-case analysis. I think if we just keep bringing it back to any - - -

CALLINAN J: Well, analyse that case for me. Analyse women's basketball.

MR SPINKS: I do not know the gravity of the harm, the probability of its occurrence - - -

CALLINAN J: It occurs more than in any other sport. Assume that to be true, for present purposes.

MR SPINKS: I do not know whether there is a reasonable and simple way of removing the risk, as illustrated by Chief Justice Gibbs earlier. If it can be removed, as it could have in this case, without any inconvenience, little expense, well, I would suggest that possibly - - -

KIRBY J: The thing you can grab on to in this case is the ready means of avoiding injury? I mean, there may be, in women's basketball, some padding, or something like that - - -

MR SPINKS: There may be, but there may not be - - -

KIRBY J: Have you ever played or watched that game - on television?

MR SPINKS: Women's basketball? No, I have not, your Honour.

KIRBY J: .....

MR SPINKS: Yes.

KIRBY J: Well, neither have I, so we cannot answer Justice Callinan's question.

MR SPINKS: No.

KIRBY J: But you say it is a question in every case in analysing what is available as a reasonable measure to prevent the particular injury. If it is readily available and if it is cheap, especially if it is a commercial enterprise, they should have it there available for players.

MR SPINKS: Exactly.

KIRBY J: And if the law does not say they will, well, nobody will ever do anything. People keep on gouging eyes out.

MR SPINKS: Yes, your Honour. I think her Honour got, with greatest respect to her Honour, a bit confused about the relevance of a risk being inherent in an action against an occupier. It is our submission that the inherent risks are the very ones you do safeguard against. In an action between two participants, the inherent risks mark out possibly that area of risk where no duty is owed. But in the action against the occupier it is quite the opposite.

If you look at the decision of Wilkinson v Joyceman (1985) 1 Qd R, which is also in that book of authorities I have handed up, at page 573, his Honour looks at possibly the question we are looking at right now. In this case an experienced motor racing person went to a racetrack and was injured in the pit area when a bonnet flew off a car and injured him - killed him, actually. The Chief Justice of the Court of Appeal in Queensland said - I know this is a duty case, but the point is it is relevant in assessing what is reasonably required because he focuses in on inherent risks. He says:

it seems to me that the occupier or owner of the land may well, in certain circumstances, owe a duty of care to persons who enter onto his land when he knows that certain activity such as a sporting contest, is being carried on there and he has sufficient knowledge of the manner and conditions in which the activity is being conducted -

in this case -

by others. In other words, an occupier may be liable for injuries or damage caused by sporting activities if he is in a position to foresee certain risks which are inherent in the way that those activities are organized or carried out and he fails to take reasonable care for the protection of people whom he knows are entering onto that area.

So his Honour tends to suggest that the inherent risks are the very ones you should be keeping an eye on whereas, in this case, the trial judge thought because a risk was inherent, that was actually a reason not to do something about it.

McHUGH J: It depends what you mean by "inherent" in this context. I was always brought up with the view that the only risks that were inherent in any activity were those that could not be eliminated by the exercise of reasonable foresight and reasonable practicability. The reason the steeplejack cannot succeed in an action against his or her employer is usually because the risk just simply cannot be eliminated by any practicable means, therefore, it just has to be regarded as the "inherent" risk. But I am not sure that you can carry over those notion into this sporting field.

HAYNE J: Does it mean, for example, that because there is a very high risk of hamstring or other muscle tears in indoor cricket that you organise a sport in which there is no running? Ready modification avoids a risk yet the mind recoils at that as the notion of what you have to do. Now, why?

MR SPINKS: Your Honours, if this plaintiff had slipped in the bar area of this establishment on some beer that had been spilt on the ground and left there for 20 minutes, we would not think twice, possibly, about awarding him damages. Now, the notion that someone should be warned about slipping on beer on the floor can be as preposterous as warning about any - - -

GLEESON CJ: Now, you have just gone into the area of warning. Does that mean you have said what you want to say about providing the helmet?

MR SPINKS: I have said everything I want to say. It is covered in my submissions.

GLEESON CJ: I wanted to ask you this question about the warning, Mr Spinks. What, on your submission, should the warning have said?

MR SPINKS: It is in the pleadings, but - "by participating in this activity" or "Warning - participation in this activity can result in serious eye injury".

GLEESON CJ: Well, or a broken nose, or having your teeth knocked out, or having concussion and suffering brain damage.

MR SPINKS: Possibly.

GLEESON CJ: In other words, all the things that could happen as a result of getting hit hard on the head by a cricket ball could happen to you.

HAYNE J: Or a cricket bat.

MR SPINKS: I am not saying that. I think, once again, you have to just go back and analyse the essential questions.

GLEESON CJ: If the owner of these premises had set out to warn people of all the nasty things that could happen to them as a result of coming into contact with a cricket ball or cricket bat, why would you select eye injury for special treatment? Why would you not say, "You might get a broken nose, or you might get your teeth knocked out, or you might get your jaw broken, or you might suffer concussion and brain damage."?

MR SPINKS: Our submission is that the first point, in that respect, is it was a serious and significant risk - - -

KIRBY J: Does not Nagle stand for the proposition that the warning obligation is where the risk is hidden? In that case, it was some hidden rocks and this Court held that there should have been a warning because of the nature, in a sense, as we would have said in the old words, a hidden trap. Now, having your eye knocked out or your teeth knocked out, they do not seem to be hidden risks of this sporting activity. They seem just to be fairly obvious risks. They may be small risks but they are fairly obvious.

MR SPINKS: Well, her Honour did find, as a question of fact, that my client was not aware of the "higher" risk - whatever that means - you can only take that to mean the risk, of serious eye injury in indoor cricket and she, in fact, found that the defendant was not aware of the risk either. So it was not something that was readily apparent.

GLEESON CJ: I think what she actually found was that he was not aware that the risk of eye injury was higher in indoor cricket than in outdoor cricket.

MR SPINKS: That is right. The way her Honour got around that was to say, "Well, the defendant was not aware either, so he does not have to warn".

GLEESON CJ: But everybody knows, or it is obvious, is it not, that a risk of playing cricket, where people are bowling balls fast at you, and where the accepted method of hooking them was to put your eyes behind the line of flight of the ball, is that there is a risk that you are going to hit on the head, specifically on the face.

MR SPINKS: That is exactly right, but what we are saying is knowledge that an accident may occur does not mean you have an appreciation of the risk of injury. I mean, risk is something defined in terms of probability.

McHUGH J: No, but what is being put to you is that in some way you have to distinguish this particular case from other cases which argue that it would require a warning. Is there to be a sign put up which says, "Caution: those who play this game may suffer a broken nose, have fractured teeth, have eye injuries"? Do you have to list them or is there something special about this particular risk which takes it outside those categories? Now, I understood you on the special leave application to say that by reason of the type of ball used in this game, that there is a special risk over and above that which is to be found in outdoor cricket and that there should have been a warning about that particular risk, query whether or not it would have stopped your client from playing, but that is a causation question.

MR SPINKS: Well, I mean, I could say two things to that. The first thing is, in an action against a supermarket owner I do not think it would be suggested that a person, when alleging that they should have cleaned up a mess on the floor, by implication, should then go through and prove to the court why the risk of slipping on something on the floor was in some way so different from every other risk like rounding the corner and being hit by a trolley or having a can of baked beans fall on your head.

GLEESON CJ: Maybe the difference is this, Mr Spinks. The risk of slipping on a grape in a supermarket may not be of the same quality, in terms of the way in which people accept it, as the risk of suffering some kind of physical injury when you play a violent sport. I hesitate to use the word "violent" in relation to cricket but it does involve people bowling hard objects very fast and people trying to hit them very hard.

McHUGH J: When you walk into a supermarket you usually do not expect to be injured. When you play cricket you appreciate that there is a risk of being injured.

MR SPINKS: Some risk, yes.

CALLINAN J: The point I sought to make in Hyde v Agar is that you are going into a supermarket, really, because you have to go somewhere to buy food. You have to go on the roads to travel somewhere. But nobody compels you to go and play sport.

MR SPINKS: The point I made before was that for some people shopping may be as much a form of recreation as a game of cricket and I do not think we distinguish between those people who went to shop for recreation and those who went through necessity.

CALLINAN J: No, but unless you are self-supporting and you do not want to wear any clothes, you have to go and buy food somewhere.

MR SPINKS: That is right, but there will be an occasion when a person may go shopping for a recreational purpose and - - -

KIRBY J: Some Australians think sport is a compulsory part of life, much more important than supermarkets.

MR SPINKS: That is right. I think Justice Meagher, in one of his decisions, thought that sport was - - -

KIRBY J: I do not think he is an expert - - -

MR SPINKS: - - - unhealthy, unpleasant and suffer from the features of tribal barbarism, so he clearly did not think sport was something - - -

CALLINAN J: Was that an equity case?

HAYNE J: Could I take you back to this question of warning? What warning do you say could or should have been given?

MR SPINKS: He should have been warned that there was a risk of serious eye injury when he played indoor cricket.

HAYNE J: And only that?

MR SPINKS: That is our case.

McHUGH J: Yes, but you have to lift your eyes. You have to look at the matter as a whole. If your client had pulled a leg muscle while running or bowling, should there have been a sign which said that you want to warm up, do some stretching before you play?

HAYNE J: There are activities in the US where you sign a form which has, in bold type, "This activity may cause death, paralysis or permanent serious injury". Now, this is an activity which, in certain ways, can cause all of those. Why should the warning not read in that form?

MR SPINKS: It is a commercial enterprise, I suppose they could just put a disclaimer sign up on the door when you walked in and said, "You play at your own risk". They alleged they had one there. The trial judge did not believe them and found as a question of fact it was not there, but I mean - - -

GLEESON CJ: But the trial judge faced up to this question. I am not saying that her answer was right or her answer was wrong, but what she said was that the logical consequence of your argument was that people should be warned not to play this game.

MR SPINKS: I do not agree with that proposition. A person may look at that sign and still elect to play. They may say - - -

KIRBY J: Was there something, as Justice McHugh was asking you earlier, special about eye injury? You see, you have to lift - the notion of having a general warning of everything, every peril of life and having warnings all over the place, "Do not come into this Court, there are angry judges. They will give you palpitations.". I mean, that is not very persuasive, but if there was something about eye injury in a close confine in this particular enterprise, the numbers of them, and so on, that lifted your client's injury into a particular class, well, you may have a case on - - -

MR SPINKS: That is the point I am making. It is just an assessment of the gravity of the risk and the probability of its occurrence. If you look at the medical evidence - - -

McHUGH J: But to tell your client that there was an eye injury does not seem to me to tell him very much at all. He would have known that from his cricketing days. You have to be more specific, that there is some special risk. It may be that, on your argument, what is required is a warning that people should consider whether they want to play the game, having regard to the type of risk that is involved.

MR SPINKS: Well, we pointed to the probability of the occurrence. I think there were 11 eye injuries reported in a three-month period.

McHUGH J: Six, I think.

MR SPINKS: I think it was 11. I think the point is that that was a finding of fact made by the Full Court, that there was a significant risk of serious eye injury in the game. Her Honour found the reason the appellant did not have to be warned was because the risk was obvious, but her own findings of fact did not support that conclusion because she found that he was not aware of the higher risk of injury in indoor cricket.

McHUGH J: Well, now, is - - -

MR SPINKS: Justice Murray says himself, he says, "The plaintiff argued that the risk was not obvious and appreciated, and if that was the case, then maybe a warning was required". That is what Justice Murray said in the Full Court. He was persuaded that perhaps if this risk was not readily apparent to somebody, then, yes, maybe the circumstances of this case justified a warning. The difficulty with Justice Murray's reasoning was that her Honour never found at any stage that our client appreciated the risk of injury. She only found that he appreciated the possibility that he could get hit by a ball in the head.

KIRBY J: Did her Honour find anything on the causation issue, as to whether your client would have obeyed such a warning, or would have done - because that is the next step you would have to overcome here, is it not? You do have a causation finding on the prevention - on the helmet. So you have overcome that problem. But what about on the warning? Is there any finding that had you been warned, you would not have played, you would have insisted - - -

MR SPINKS: What her Honour said was that had he seen a sign which said "Players play at own risk", that would not have prevented him from playing, but that - - -

KIRBY J: That seems common sense.

MR SPINKS: Yes, but that is not the warning we contended for, so that was an irrelevant finding in the circumstances.

GLEESON CJ: That is why it is important for us to know what exactly is the warning you contend for.

MR SPINKS: The warning is that, "Participating in this game may result in serious eye injury" or "Indoor cricket is a game with a high risk of serious eye injury" warning.

GLEESON CJ: They are two different propositions.

McHUGH J: Yes, very different.

GLEESON CJ: If you took the first proposition, he probably would have said: "Of course. That is obvious." It is obvious, is it not, that you have the risk of serious eye injury by playing cricket? That is why you had - - -

MR SPINKS: It did not seem obvious to the defendant and others called on behalf of the defendant who, despite having owned centres and operated them for many years, all expressed a great deal of surprise when the facts and figures were put to them. They just said, "We never considered there was a risk of eye injury in indoor cricket. We never thought about helmets. It is really nothing that has bothered us. If we had known about this, maybe we could have looked at it."

GLEESON CJ: But that is the difference between those two different warnings you said. The second warning seems to proceed upon the assumption that there is something about eye injury and indoor cricket that makes it appropriate to give a special warning about that, as distinct from broken teeth and broken noses and concussion.

MR SPINKS: We say, the facts that invoke the necessity for a warning was the gravity of the injury, the probability of its occurrence, the fact that a warning sign would have been an inexpensive way of reducing a risk of injury.

McHUGH J: You are not answering the Chief Justice's question. What you are being asked is to formulate a specific question and then show why that is different from other forms of risk of injury, such that you are entitled to get a warning about this risk, even if you are not entitled to a warning about other risks.

MR SPINKS: I think the fact that the risk of eye injury was not readily apparent - that was the first thing. Her Honour found that, that clearly, our client was not aware of the risk. He was not aware of the mechanism which caused the risk, the nature of the ball - - -

CALLINAN J: I cannot understand that finding, for a start. If you play a game with a semi-flexible ball, intended to be hit as hard as possible with a bat, how could there be other than an obvious risk that the ball, so hit, could strike and hurt somebody in the eye? It could not be otherwise.

GLEESON CJ: We so far have been concentrating, kindly, to you, on the risk of injury to batsmen, but I would have thought the person who was most likely to get injured, if your client had got onto this ball that was bowled at him chest-high, was the nearest fielder.

McHUGH J: He is only 10 metres away, is it not? This is an area that is 30 metres by 10 metres.

MR SPINKS: Unfortunately, the rules did not allow fielders to wear helmets either, so they were not able to protect themselves from eye injury. So you are probably correct on that point. I think Dr Anderson acknowledged that there were many people on the field at a very great risk of eye injury.

GLEESON CJ: So if the respondent had, the week before this happened, gone along to its lawyer, and said, "Please devise a warning that we should put up on the wall", why would the lawyer say, "Put up a warning about the risk of eye injury to batsmen"? Why would not the lawyer have said, "Sit down and think about all the forms of harm that could come to batsmen and bowlers and fielders"?

KIRBY J: As I understand your case, you say, because of these statistics, which they did not know about but should have known about, that their duty was to draw attention to the fact that there is a particular risk to the eye in this particular form of sport with this particular form of ball, and that this should be drawn to the notice of those who participate, so that they can make an informed decision, go ahead - as most of them will - or not to go ahead. That is their right.

MR SPINKS: Yes, that is correct. I mean, I - - -

HAYNE J: That is rather different from what you pleaded. See page 5, particular (b). You there specify the form of warning that you said should have been given. A warning sign:

to warn the Plaintiff and other players of indoor cricket of the dangers of indoor cricket; in particular the risk of serious eye injury -

but the sign asserted is a general sign warning of "the dangers".

MR SPINKS: Well, I think that is just a matter of grammatical construction. I think the tenor and effect of that paragraph is that we request a warning of the risk of serious eye injury. The difficulty is that your Honours are asking me to try to distinguish - - -

McHUGH J: Mr Spinks, I have sat in patience for a long time. Perhaps I am old-fashioned, but counsel do not tell us what they think. They put submissions to the Court.

MR SPINKS: Yes, your Honour.

McHUGH J: Could you, for the remainder of your submissions, at least so far as I am concerned, make your submission. Do not tell us what you think. The courts are not interested in personal opinion; they are interested in your submissions.

MR SPINKS: Yes, your Honour. My submission is that in the circumstances, it is impossible for me, or for the plaintiff, to convince the Court as to why any particular risk of injury should be warned against as opposed to any other risk when we do not know the gravity of the other risks, the probability of their occurrence, whether those other risks could be removed. We do not know anything about the spectrum of other risks involved in indoor cricket. We only know of the risk of serious eye injury, the probability of its occurrence, the gravity. We know the mechanism of the injury. We know the plaintiff was not aware of it. That is all we can put before the Court.

KIRBY J: I asked you the question earlier about ice hockey because it occurred to me that, in the litigious environment of North America, it may be that the visors there came about as a result of a few well-fashioned cases. But can you mention any developments in sporting activity generally, where, as a result of litigation or concern about litigation, improvements have been brought about in the manner in which a sport is conducted?

MR SPINKS: In answer to the first part of your question, we have not gone into the North American authorities, because they have a completely different test over there. It is a "reckless disregard" test. It is not part of the law over here, so we have not tried to synthesise those cases into this case. In relation to your second question - - -

KIRBY J: I would still be interested to see those. Are there any textbooks on sports law in North America, in the United States, that discuss how they have dealt with cases like this?

MR SPINKS: The cases that I read were from the American Restatement on Torts, and that has a section on informed consent and sporting injuries, your Honour.

Your Honour, in relation to the second part of your question, I can point to a change that has been made as a result of litigation. As a result of the case in Hyde v Agar, the rugby union federation has now changed their rules to incorporate the suggested modification that the plaintiffs put forward in that case, even though they were unsuccessful.

HAYNE J: Can I just follow up the ice hockey example a little further. I may be quite wrong, but my ill-informed observation would be that the wearing of ice hockey helmets has shifted the injury simply further down the face, and that there are a lot of ice hockey players who display very gap-toothed smiles. The point is not a captious one. What do you do in a sport like ice hockey, in a sport like indoor cricket? Implicit in your argument is that there are some injuries which are, if you like, acceptable; that there are some injuries which are so obvious a risk that no warning is needed. What is it here that took this case outside that area, when you have a small projectile being hit with as much force as the hitter can apply and you have eight other people in very close proximity?

MR SPINKS: Your Honours, I can only restate what I have said. It is the gravity of the risk, the probability of its occurrence, the fact that it was not a risk that was readily apparent to anybody, including the plaintiff - that was a finding of fact made by her Honour - that a warning was a simple, cheap mechanism of ensuring that people were informed of the risk of injury, and that in the context of a situation where a person is providing recreational facilities for reward, there becomes a conflict between your own commercial interests, trying to encourage people to play your sport, and an obligation, possibly, to warn people of the risks inherent in that sport. I think Mr Lewis himself was asked the question as to what he thought would happen if a warning was put up in his centre. His answer was it would have the same effect as it would on many other commercial enterprises. When asked what that effect was, he said it would be a scaring effect.

GLEESON CJ: I suppose he might have answered it by saying it would depend on the warning.

MR SPINKS: Yes. Well, he answered it by saying it would have a scaring effect. That was - - -

KIRBY J: Is the warning an essential counter-attack? If the rules operate, then if you are going to play by rules which expose people to risks of 11 or six or whatever the injuries are, of which a commercial operator ought to be aware or ought to make themselves aware, then, at least if you play by that game, you have to bring this particular knowledge, which is available to you and of which you should inform yourself, so that you can inform your customers of the particular risk. Is it bound up in your answer to the rules argument?

MR SPINKS: Our submission is exactly that, that when there is no way of removing the risk - or if there is a way, but you want to adopt a course of conduct which does not allow you to remove the risk - then all the more reason to warn.

KIRBY J: Are the cases that you put in your small collection the only cases that you have found in the sports law area? I mean, there are whole conferences on sports law. Justice Meagher goes to them all, and speaks at them all. There must be more cases than the three that you have collected.

MR SPINKS: In my written outline of submissions, I think quite a great deal of them have been footnoted.

McHUGH J: Well, there are. There is a case concerning Malcolm Johnston, the jockey, who was successfully sued by another jockey who suffered serious injuries as the result of a fall brought about by Johnston's negligence. I mentioned it on the special leave application. It went to the Court of Appeal in New South Wales.

MR SPINKS: We have tried to avoid cases involving participants because this is an action against an occupier, and it is an action against an organiser. It is our submission that there are different considerations at play here, so we have brought to the Court's attention - - -

KIRBY J: In either matter in the old days, this would have been an entrant as of contractual right, because you are in a commercial enterprise. So there the duty, in the traditional form, was very high. It was higher than just owed by an occupier, because any person can come onto your property. This is somebody who has come in, to your profit. In the old days, before everything was subsumed into the general remit of negligence, that was a very high duty, dealt with in Calin. Calin is the case in this Court, involving a picture show.

MR SPINKS: Your Honour, that is an interesting point, because contractual obligation, which I think is described in Calin as a higher duty, is specifically preserved by the Occupiers' Liability Act.

McHUGH J: But when you are talking about a commercial arrangement, particularly on the first point about the helmet, there are costs involved, not only in getting them, but also - they would have to be cleaned, would they not? Was there not some evidence to the effect that without $1.50 to play the game - people who play this game come from - I think there was some talk about it - it was a fairly poor area.

MR SPINKS: Her Honour found, as a question of fact, that cost, hygiene and any other factor would not have prevented the provision of helmets.

McHUGH J: Would not have - - -?

MR SPINKS: Would not have prevented the defendant providing helmets. She made a specific finding in that respect.

McHUGH J: Well, now, what about if a duty is owed, whether it be a warning or providing a helmet, obviously there is a question of costs, from the proprietor's point of view. Does not the evidence show that there was insurance for 12 months but it became too costly for it to be maintained, and therefore it lapsed?

MR SPINKS: Well, they were certainly insured at the time of this accident, so - - -

McHUGH J: They were not?

MR SPINKS: They were.

McHUGH J: They were.

MR SPINKS: Insured at the time of this accident. I am not aware of - - -

McHUGH J: At 217, or something, there was some evidence about that.

CALLINAN J: Mr Spinks, at page 500, the trial judge did, in fact, refer to Dr Anderson's evidence about the reduced incidence of eye injury in ice hockey and lacrosse, about point 7 on the page. Her Honour did have regard to that. But at the same page, her Honour discussed other evidence of Dr Anderson, and it seems to me the effect of that evidence is that although a helmet, had it been worn, might reduce the risk of eye injury - perhaps even eliminate it. In fact, there had been no consideration given to specific design features for such a helmet. Also, that although there had not been any reported incidents of injuries caused by a collision with helmets, there does not seem to be any reference to the extent to which helmets were worn. So that we do not know, unless you can point to it in the evidence, whether helmets were worn so often, or so rarely, that it is unlikely that there would have been collisions anyway.

MR SPINKS: In other sports?

CALLINAN J: No, in this sport.

MR SPINKS: Well, helmets were never worn in this sport.

CALLINAN J: Were never worn in this sport. So we do not know, do we, what incidence there might have been in this sport of collisions, if helmets had been worn - particularly, helmets of the kind referred to, and not specifically designed and adapted to indoor cricket.

MR SPINKS: I think Dr Anderson had observed the game of indoor cricket. He had conducted testing at indoor cricket centres on different forms of eye protection, using radar guns and things like that. He had looked at games that were similar, that had a lot of body contact, like lacrosse.

KIRBY J: Are helmets worn in lacrosse?

MR SPINKS: Yes. I think helmets are actually compulsory in women's lacrosse, and it is up to the individual in men's lacrosse, but they are certainly allowed to be worn. What Dr Anderson said was that on his knowledge of indoor cricket and the manner in which the game is played, he would not have thought that there was any possibility of - or not any possibility, but if there was a possibility of an injury, it was so minor that it did not warrant consideration.

CALLINAN J: Where do I find that evidence?

MR SPINKS: That is at the bottom of page 323. He says:

Which do you consider to present a greater danger, the wearing of helmets by players in indoor cricket and the risk of injury from collision with the helmet on the one hand or the non-wearing of the helmet and the risk of eye or head injury on the other hand? - - -

As far as eye and head injuries are concerned, there's no question that the helmet would make it very much safer and, as I have said, I'm unaware of any reports of injuries related to helmets so I obviously must feel that there's much great protection by wearing a helmet than not.

I think in the context of the question, which is asked in the context of indoor cricket, if the answer is seen in the context of that question, the answer relates to indoor cricket. The answer in relation to lacrosse in on the next page, the last paragraph.

In the course of the evidence of Dr Anderson, the context of it is such that he is being asked about the specific features of indoor cricket, the points that Mr Lewis thought made it different from other sports, such as there is a lot of body contact. If you look at page 324, we are taken into the lacrosse, because it has similar features. He says, "And what are those features?"

The features are a fast moving ball that's travelling at variable heights above the ground making the head in the target zone and it's a very fast moving field game.

Is there any body contact in the game? - - -

Very significant body contact in men's.

KIRBY J: Does that sound a little bit like squash? I mean, is the implication of your success in this case that squash players would also have to wear a helmet? Was there any comparative material on squash as against indoor cricket?

MR SPINKS: There was comparative material in respect of the number of injuries. They were about identical; I think there were 12 eye injuries in squash reported in a three-month period, and 11 in indoor cricket. In relation to squash, as I said, it is compulsory for juniors to wear eye protection, and as far as adults go, there is no prohibition against wearing them - well, it certainly was not brought to the attention of the court, so I could not take you any further on that point, your Honour.

GLEESON CJ: Because goggles are not likely to cause harm to your opponent.

MR SPINKS: I found the point where Dr Anderson does bring his evidence together. It is page 326. They are looking at features of the helmet, and says:

Do you think that poses any significant danger at all in wearing a helmet in indoor cricket?

His answer is:

If it does, it must be minimal because I'm unaware of any such injuries occurring from wearing a helmet in any sport in Western Australia. Can I comment on that?

And then he goes through a whole number of sports, from motorbike riding where, at first, there was initial reluctance to wear them, because they thought that there were secondary injuries that could result from them - and dismissed all of those claims, and maintained his position that he thought the helmets were appropriate, having regard to his knowledge of the game.

KIRBY J: You have concentrated so far on the helmet. Do you want to say anything more about the ball? Because my understanding is that there was some particular feature of these balls that added to the risk of eye injury.

MR SPINKS: Only in so far that her Honour found, and the medical evidence substantiated the fact, that the indoor cricket ball was such that, unlike a normal cricket ball, it did not just damage the outer bony orbit of the eye, but rather moulded in and struck the eyeball like a squash ball, and that is why it created such severe injuries. Her Honour found that the appellant was not aware of that aspect of the indoor cricket ball or the mechanism of injury, so it only compounds what I have already said in respect of warnings, and that is there was not a readily apparent risk. That was a finding of fact.

KIRBY J: Can you explain in words of one syllable what the difference - I know what an ordinary cricket ball is like. What was the difference of this indoor cricket ball?

CALLINAN J: It is semi-flexible, is it not? So therefore it compresses and can get, in effect, between the bones that surround the eye. Is that right?

MR SPINKS: That is right.

CALLINAN J: It can come into direct contact with the more delicate part of the eye in a way in which a bigger, harder ball cannot. Is that correct?

MR SPINKS: That is right. And as the game goes on, the ball gets softer, and its capacity to cause that type of injury becomes greater. That is not a fact that would be apparent to anyone playing indoor cricket for the first or second time, as my client was.

CALLINAN J: What is the ball made of, do you know?

MR SPINKS: There were some exhibits handed up to the Court. I was informed by the Supreme Court that they were - - -

GLEESON CJ: No, we were not actually asking to look at one, we were just asking whether you knew the substance of which it was made.

MR SPINKS: I do not know the - on the exterior, it looks like an outdoor cricket ball - it is covered in leather. But the interior - - -

CALLINAN J: If it is here, I would like to see it.

MR SPINKS: I think it may be hollow.

GLEESON CJ: There is nothing on it that says what it is made out of, as far as I can see.

KIRBY J: It feels fairly solid.

GLEESON CJ: Right. Well now, does that cover what you wanted to say, Mr Spinks?

MR SPINKS: Yes.

GLEESON CJ: Thank you. Yes, Mr McCormack.

MR McCORMACK: May it please your Honours, the decision of the learned trial judge was correctly, in my most respectful submission, dealt with by the Full Court of the Supreme Court of Western Australia. The case turns on whether or not the risk of a high speed projectile into the face included two aspects. One, an inherent risk causing injury when it struck any part of the face, or the head, or the body, and whether, on all of the facts, that risk was obvious to the participant. It is in that context - - -

McHUGH J: What has the obviousness to do with it? On this theory, there would be no obligation at common law to fence dangerous machinery.

MR McCORMACK: If it please, your Honour Justice McHugh, it is a two-stage inquiry because of the voluntary assumption of risk. Many risks - - -

McHUGH J: I thought the assumption of risk is another area of law altogether and, as often has been pointed out, you have to establish that the plaintiff gave up his legal rights in respect of the risk. That is why that defence never succeeds these days. It is unfortunate. There is a dictum in Justice Kirby's judgment in Romeo, which I am sure his Honour did not intend to give the effect which courts seem to have been giving it, that if something is obvious, there is no duty.

KIRBY J: I think Justice McHugh in a special leave application, and I, made that clear that that was related to the facts of that particular case of an intoxicated plaintiff on the edge of a cliff, but if you blow that into an importance that it does not deserve, then there are all sorts of cases where risks should be safeguarded against warnings given, like cigarette smoking. You would not have to do it because you would say, "Well, it is obvious". That is not the law.

MR McCORMACK: If it please your Honours, the learned trial judge did not, in my respectful submission, incorrectly apply what was said by your Honour Justice Kirby in the Romeo Case. Rather, it has perhaps attracted some attention in terms of the appeal issues and on special leave applications which, on a closer analysis of the underlying reasons which were given, or the facts underlying the reasons given by the learned trial judge, showed a correct application of the law and no error. There, nonetheless remains, in my respectful submission, an issue where obviousness is a relevant factor on particular facts to be taken into account.

McHUGH J: It goes to contributory negligence. If my memory is right, the case that Justice Kirby just mentioned was a case called Bomford v The Commissioner of Main Roads. It came from this jurisdiction and we specifically said that what his Honour said in Romeo is not for general application.

MR McCORMACK: If it please your Honours, in this case the learned trial judge had before the Court a plaintiff who had some sixteen years of experience in country level cricket. He always wore a full face mask, that is, it includes a metal grille which protrudes quite substantially from the base of the wings of the - or the lower part of the helmet.

KIRBY J: Why does it do that?

MR McCORMACK: To avoid, if it please Justice Kirby, damage to the mouth, the nose, and to a certain extent - - -

GLEESON CJ: And to avoid getting one up the throat.

MR McCORMACK: Anything really, up the front through to the brim. Part of the problem in the present case was when Dr Anderson was asked to pick up that ball, the indoor cricket ball and use it in relation to an outdoor cricket helmet which was what was being put forward, it being slightly smaller, went straight through the gap and would have hit the wearer in the face in the eye region in any event. That was one of the reasons why the proffered helmet which is alleged to have been needed to be provided in order to discharge the duty of care and the extent of that duty, was found not to apply.

KIRBY J: That is good forensic stuff because that sort of knocks on the head the proffered helmet, but it does not knock on the head the argument that you, who are in the commerce of running this game which has dangers of a general kind but also it is said, because of the number of eye injuries, dangers of a particular kind have to prepare and produce, and supply, for those who want to use it, a helmet that will be able to resist the assault of this particular ball which has apparently a malleable quality.

MR McCORMACK: If it please Justice Kirby and the other members of the Court, the bottom line, in terms of what would be a suitable helmet, had to have rather like a fencing foil mask which was a mesh of some kind without protrusions and without a protruding brim, which on a cricket helmet is quite sharp, and is a protuberance of a marked kind.

GLEESON CJ: Mr McCormack, was any attention given in the evidence and, in particular, the evidence about possible collisions, to the significance of the fact that the people who seemed to be at least as likely to collect one of these fast moving projectiles in the face as a batsman, are the fielders, who are fielding in close proximity to the batsman? If it were necessary for the batsman to be provided with a helmet, why would it not be at least as necessary for the fielders to be provided with helmets and what consequence would that have for this body contact sport?

MR McCORMACK: May it please your Honour the Chief Justice, there was evidence and it was to the effect that it has to be a helmet for all participants in the game. It is played at such a pace, at such close quarters, that nobody can be excluded from the area of risk. There is a lot of diving, was the evidence, that goes on. Because of the contracted nature of the court, 30 by 10, people are within three metres; sometimes, silly mid-on slips, whatever particular position is to be noted, it is very close and very dangerous in terms of the ball or the bat, or for that matter, some other loose aspect, perhaps the wickets.

Runners between the wickets tear along and then throw themselves bodily down and slide through into the safe crease. The risk of injury through collision was commented upon by Mr Shaw, an umpire of considerable experience, who was in fact the umpire on the night.

KIRBY J: So the bottom line, if I can use that American expression as you have used, is that there is just nothing you can or should have to do to prevent three, six, 11 eye injuries in a given period. I mean, that does not seem to be acceptable.

MR McCORMACK: May it please your Honour Justice Kirby, it is a matter where - and it is not for me to speculate, but what emerged from the evidence was it was a design path which needs to be trod down with design criteria and testing in order to come up with a helmet such as satisfies the Australian/New Zealand standards in relation to outdoor cricket helmets.

KIRBY J: Has your client done that?

MR McCORMACK: No, your Honour.

KIRBY J: Well, is that not carelessness?

MR McCORMACK: May it please your Honour, in my submission, no. The evidence was accepted by her Honour that the particular risks in this case were not known to the defendant and her Honour noted a degree of tension between the argument put by the plaintiff against the defendant. On the one hand, to say that the risk is so obvious that everybody should know it, including the defendant, but it was not known to the plaintiff, and her Honour - - -

McHUGH J: My mind boggles at that proposition, that the defendant escapes liability because the defendant did not know about it. Common law speaks in terms of "knew or ought to have known", and the evidence showed that from 1988 onwards there was this problem, recognised by experts who had taken steps to try and publicise it. If your client did not know about it, it does seem to me to help it very much.

MR McCORMACK: Your Honour, if it please Justice McHugh, the specific aspect that her Honour was referring to was a risk different from the risk of a cricket ball striking the head. Rather, it was the ability, as Justice Callinan some time ago referred to, and Justice Kirby, of the ball, because it is slightly softer, to deform within the bony orbit and cause a different kind of injury. In my respectful submission, however, the genus of injury here is serious eye injury and what is occurring is focusing on a specific kind of injury because of the ability to penetrate the bony orbit but it is no more than one candidate amongst many for different kinds of injury. It is equally the same result if a cricket ball hits the bony orbit, causes the bone to explode and rupture into the eyeball. One winds up with the same result, serious eye injury.

McHUGH J: Yes, except that the risk is apparently greater with this ball. But, Mr McCormack, what I am interested in from you is this. It seems to me that there is clearly a reasonably foreseeable risk of injury which could have been avoided by the exercise of reasonable care. That it is not beyond human ingenuity to construct a helmet that would have eliminated this risk of injury. Now, the question is, why should not your client be required to, not merely for the batsman, but for the fielders, for everybody participating in the game? It strikes me it is quite a dangerous game.

MR McCORMACK: May it please your Honour Justice McHugh, there are two reasons in my respectful submission, why, that the defendant should not answer in terms of its breach of duty. Firstly, there was no helmet which was suitable for use. The evidence was compelling that it did not exist, either because the ball would go through the visor and it would be useless protection. Secondly, there are design requirements, acknowledged by Dr Anderson, which would need to be satisfied and he, a person very interested in the design criteria, had not progressed that himself. So it was not known in the public domain what the answer was.

CALLINAN J: It was not known at all, was it? Is that not his evidence at page 339, about point 5, at the end of his cross-examination:

So the nub of your evidence to her Honour is you are only interested in safety and so long as there is a barrier . . . to stop the ball hitting, that is sufficient for your criteria?---That is a starting point.

But the next point which is design criteria, which may need to take into account a host of other factors, including comfort and others, is a matter which you do not express an opinion on today to her Honour?---No.

So he was not proposing any particular helmet which would enable you to play the game satisfactorily and would protect people, is that not right?

MR McCORMACK: Yes. May it please Justice Callinan and the Court, that is the basis of the evidence for her Honour's finding at page 500, that Dr Anderson conceded in cross-examination that there was no solution.

KIRBY J: An extension of that logic is that you never do anything because you do not take any initiatives to find this helmet, so from what we have been told, though that was perhaps a little irregular, it still happened, people still played this game. This is the way society progresses. The law holds a person like your client liable and then steps are taken, like the wearing of helmets by motorcyclists. Things never change if the law does not say, "These are our standards". You could say, as many cases on sport injuries, there are some things that are unavoidable, some things you just cannot do anything. But this, it seems, that the level of eye injury is very high and it is said from that there arises an obligation, certainly on commercial enterprises to do something, and you did nothing.

MR McCORMACK: If it please your Honour Justice Kirby, that, with great respect, needs to be looked at back in time, as to what was known, what was available and the context within which the game was played, having regard to the Australian Indoor Cricket Federation rules.

HAYNE J: I understood the point you were making to be that reasonable care could not require you to supply what was not available. Is that not the nub of it? That is either an answer or it is not, but is there a finding to the effect that nothing suitable was available?

MR McCORMACK: Yes, your Honour.

HAYNE J: You have taken us to evidence. Where is the finding?

MR McCORMACK: At page 514 of appeal book 3, the learned trial judge concludes that in relation to her findings on the issue of protective equipment, and that starts at about 500, is that because of the unavailability of protective headgear, a warning would have to be in the nature of a warning not to engage in the sport at all, and that is predicated upon her Honour's earlier discussion of the evidence, including Dr Anderson, which was to the effect that - and her Honour relied on that evidence - there was no existing protection available acceptable to resolve the risk.

To that is appended the further issue of the role of the rules because the defendant, at the end of the day, had to coexist in conjunction with the rules. There was an umpire on the scene and questions were asked, including by her Honour, quite, as her Honour put it, in putting the question directly, "What would you do if somebody came into the centre and wanted to wear a helmet?", and the answer was, I think from Mr Lewis, firstly, that that person would not be permitted to play. That is an independent person from the defendant applying the rules as that umpire understood them.

KIRBY J: Yes, that might be so. You apply the rules, but then if the law says that you owed a duty to provide equipment, then you are liable, even though you are playing by your rules, you are still liable. You cannot, by your rules, exempt yourself from the law.

MR McCORMACK: If it please Justice Kirby, I accept that if the law was to provide that, then that would be so. But in my respectful submission, that would be an unreasonable result on the facts of this case.

GLEESON CJ: The findings that were made, which may be right or may be wrong on this, as I understand it, are at 511. For some reason the lines are not numbered, but in between the numbers 3 and 4. Her Honour may have been right or wrong but she says that it is not:

reasonable to expect an individual operator of a suburban cricket venue to take steps to investigate and research -

a new helmet.

MR McCORMACK: Yes, may it please - - -

KIRBY J: That is to throw your hands up in the air and say, "It is all too difficult", defence. It just does not seem to gel with the common law which is to impose individual duties on people. You cannot say, "Well, I am not going to do anything because I am waiting for some other organisation, or somebody else". There will always be somebody else who could do something. The common law attaches its obligation on us as neighbours.

GLEESON CJ: You made a reference earlier to what you called the "proffered" helmet. What did you mean by that expression?

MR McCORMACK: An outdoor cricket helmet which was put in as an exhibit in the case, which has a full grille - - -

GLEESON CJ: But what was its relevance as an exhibit?

MR McCORMACK: It started off as part of the plaintiff's case as the solution to the need - - -

GLEESON CJ: That is the point that I was seeking to come to by my questions. Was it a particular of negligence on the part of your client that it failed to design a new form of helmet or was the particular of negligence that it failed to provide the available helmets?

MR McCORMACK: It is at page 5 of the first appeal book, if it please your Honours, the particulars of the defendant's negligence.

KIRBY J: It is about (d), is it not:

failed to provide the Plaintiff with any or any proper eye protection or guarding whilst playing indoor cricket;

MR McCORMACK: Yes.

GLEESON CJ: Now, was it part of the plaintiff's case at trial that assuming the unsuitability of the existing helmets as designed for outdoor cricket, it was the responsibility of your client, in discharging its duty of care, to set about designing itself a new form of helmet? Was that part of the plaintiff's case, that is all I want to know?

MR McCORMACK: No, it was not, Chief Justice, no.

KIRBY J: What did they actually do? They tendered a helmet and it then turned out that when the doctor - was this done in court, was it?

MR McCORMACK: Yes, in cross-examination.

KIRBY J: He threw a ball at the helmet and it went through the visor.

MR McCORMACK: No, it was just able to be slid through by hand.

CALLINAN J: The ball is smaller, it is slightly smaller, the indoor cricket ball.

MR McCORMACK: Slight smaller.

McHUGH J: Is the helmet here that was tendered?

MR McCORMACK: I understood it was.

KIRBY J: But that is if you actually slide it carefully by hand. That does not mean it is not going to be knocked back when it has a projectile. I mean, you have to be very unlucky for it to actually be projecting at the visor exactly at the millimetre where it will slide through. That is not how things happen in life.

MR McCORMACK: Except, Justice Kirby, where the gap is, is where the eyes are and, therefore, it is directly related to the risk area, and either it is covered or it is not. In its opening, it can be adjusted, the grille, up and down. The ball was readily able to be put through and Dr Anderson, the effect of his evidence was that he thought it may be suitable. In fact, his report says the only available protection is an outdoor helmet in traditional form with the full face grille. But in cross-examination he conceded, as the learned trial judge noted in her reasons for decision, that that was not an appropriate helmet to give the safety level claimed by the plaintiff.

KIRBY J: The doctor was probably looking for the perfection and the perfect world. But, in the meantime, at least that helmet would be something.

McHUGH J: But, in addition, he said if this was adjusted properly, so that the gap was narrowed, then it would give adequate protection.

MR McCORMACK: If it please Justice McHugh, the doctor went on to say, and conceded, that the presence of the protruding brim, which was sharp and solid, carried with it a risk of serious injury, particularly in the context of diving and collisions between players in the small field where everybody is at risk.

GLEESON CJ: Was the suggestion that that should be provided not only to the batsman but also to the fielders?

MR McCORMACK: By the doctor, yes, only in the context, if it please your Honour the Chief Justice, to solve the risk. It was his solution, that is Dr Anderson, that there is only one way in terms of physically controlling this risk and that is to provide such a helmet to everybody on the field.

KIRBY J: In outdoor cricket, Sir Donald Bradman never wore a helmet like that. Something must have happened at a certain time that introduced those helmets.

GLEESON CJ: Lots of litigation, I think.

MR McCORMACK: There is a reference to the Prime Minister, Mr Hawke, in 1984, playing the Prime Ministers eleven - - -

KIRBY J: You say Mr Hawke was hit in the face.

MR McCORMACK: I am sorry?

KIRBY J: Was Mr Hawke hit?

MR McCORMACK: Yes, in the eye, and it is referred to specifically in the report at page 413. This is an incident recited in terms of all of the promotion as to the risk of eye injury through the ABC in 1976, and so on. That is Dr Anderson's report. But in the context of the exhibit before the Court, as the evidence unfolded, what was put forward as being the solution was conceded not to be the solution. That left no solution and led to her Honour's finding that, in effect, there is nothing that could be used at that juncture in order to alleviate against the risk and her Honour referred to the obligation as to design and research and those incremental steps that need to be taken leading through to Australian standards as applies in relation to the cricket helmets being accepted.

GLEESON CJ: I have an impression that it would be a serious mistake to think that the game of indoor cricket is simply the game of cricket of the same kind that is played outdoors played under shelter. The space in which it is played and the behaviour of the participants in the game does not seem to have much in common with what occurs on a village green.

MR McCORMACK: Condensed in terms of the space and the location of players, one from the other, there are significant differences.

KIRBY J: Nothing is going to be done until we send a leading politician in to play your game at your premises and then perhaps something will be done to reduce the risk. I mean, something was done in outdoor cricket.

CALLINAN J: Better a leading politician than a leading judge.

MR McCORMACK: May it please your Honour Justice Kirby, I am sure I would be carrying the oranges or the lemonade. I would not make the team - - -

KIRBY J: I will not be there.

MR McCORMACK: But there is no rule in the outdoor cricket environment which compels an outdoor cricket player to wear a helmet.

GLEESON CJ: Mr McCormack, you have been talking about helmets so far, but you also have an argument to answer in relation to warnings.

MR McCORMACK: In respect of her Honour's findings on the issue of the warning, they are linked to the inherent risk and what purpose would a warning serve. Your Honours, the first question which needs to be addressed in dealing with a warning is to say, "What is the content of such a warning?". That begs the question as to what is the risk which is going to be warned against and how is one going to articulate that in a suitably truncated form of English on a sign which can be read by the vast range of persons who will be playing this game, some who may be particularly perceptive, others who may not?

That raises then, as the heart of that question, the vast range of injury which needs to be catered for as far as such a warning sign. If one is merely to say, "Warning - extreme hazard in playing indoor cricket", the range of injury may be from the foot through to brain damage. Indeed, the Australia/ NewZealand standards, at page 440 of the appeal book, refer specifically to the damage of concussion, internal bleeding and brain damage by a projectile, being a cricket ball, thrown at speed, striking anybody on the head.

That is the fundamental tenet upon which the standards then progressed in order to ensure that the outdoor cricket helmet was able to withstand that force. So, when one strips away the cladding of what is firstly an attractive proposition this injury should be warned against, it must fall in a basket of injuries. There is a generic risk. That risk is inherent. It relates to the body and the head and it is not reasonable, in my most respectful submission, to identify one risk and elevate it beyond other risks, or to distinguish it.

KIRBY J: It is said that there were two features of this particular risk that elevated it. One was the large number, to me a surprising number, of eye injuries in a relatively short period, and that this is something special and different. The second was - and this is relevant to the Nagle principle - that there was a hidden factor in the malleability of this ball which a person used to the hard ball of outdoor cricket might not have expected in the case of this ball. Touching it, it seems also very hard, but apparently it has this particular quality of moulding into the bones of the eye and fracturing them into the eyeball. Now, what do you say about those two features as elevating the particular risk of eye injury that should have been warned against?

MR McCORMACK: If it please, the issue of deforming is also common to, as the Australia/New Zealand standards, at the reference I gave your Honours, also deforms, but less so, and that is specifically referred to in the preamble to the very standard that had to be met.

KIRBY J: That was page 440, is it?

MR McCORMACK: Yes, if it please, and, secondly, the ball is a hard ball, so there is comity in physical characteristics. It is not a soft ball versus a hard ball. The initial impact is by a hard projectile, being a ball, slightly, maybe a millimetre or two, smaller than the 73 millimetres applicable to a standard cricket ball. It is the internal aspect of the ball made of a plastic or polyurethane - - -

KIRBY J: Justice Callinan, my expert on this, tells me it is cork.

CALLINAN J: It looks like cork with a leather or an artificial leather surround and it seam is like a cricket ball, too. I do not know whether it is a real seam, but it is plainly cork. Anybody who has ever drunk a bottle of wine would see that.

MR McCORMACK: Your Honours, that analysis, a physical analysis - the balls are there to be seen and be felt and weighed up - is that is has the potential as an outdoor cricket to be a lethal projectile.

KIRBY J: What is said is that is has this peculiar tendency, not manifest, not known to an ordinary cricket player which is, in the sense, the Nagle hidden rocks under the water, that it was a special defect that is hidden and therefore ought to have been warned against. This Court said that in Nagle. What is the difference between this case? You are the commercial enterprise. You are engaged in this. You know or ought to have known of this peculiar quality and that that is the hidden danger you should have drawn notice to.

MR McCORMACK: If it pleases, Justice Kirby, it is a different danger, but it is not hidden. It is simply, with the greatest respect, a subset of the genus of serious eye injury. All cricket balls will include serious eye injury. Dr Bremner who gave first evidence in the case was asked in-chief, "What do you define a serious eye injury?", and this is relative to the warning. Her answer at appeal book page 1, 131 at line 2 - I beg your Honour's pardon, that is Dr McAllister to the same effect. It is page 25 at lines 3 to 4, Dr Bremner was asked the question and the answer was:

The definition of a severe eye injury is one in which there's a potential for a loss of eyesight and even loss of the eye.

Dr McAllister was to the same effect. Dr McAllister was shown the statistics and this appears at the Lions Institute report which your Honours have in the appeal book - I can find that for your Honours - where there was a reference to 10 serious eye injuries. They fell into three categories; a choroidal rupture, a loss of vision on a 6/12 basis, and a further kind of injury which included a puncturing of the eye ball through a smashing of the bony orbit structure. What has been put against the defendant in this case is merely one, a sui generis aspect of the genus of serious eye injuries which may take many forms and if one extrapolates beyond that, of course it goes into the criteria of brain damage, a concussion, internal bleeding and other, whether it is facial injuries.

KIRBY J: To me, the large number of eye injuries related to the nature of the ball, by the evidence? Did the evidence suggest that the significant number of eye injuries in a relatively short period, which I have to tell you seems to me to be shocking - horrible it would be to lose the sight of an eye - was that shown by the evidence to be related to the peculiar ball used in indoor cricket, or connected with that quality?

MR McCORMACK: Connected in the sense that there was a game of indoor cricket out of which a report as to a serious eye injury was noted. Dr McAllister, on the figures - his evidence was, and he was the treating doctor and he is at Royal Perth Hospital, he takes all the major eye traumas. He said, "Over the last 10 years I have seen 20 cases. I see two a year". That was his evidence. In terms of the statistics, at page 411 your Honours will find the Lions Institute report of which Dr Anderson is a co-author and Dr Bremner was also involved in that study. That breaks down squash, indoor cricket, outdoor cricket and various other games. As I mentioned earlier, it identifies six cases of reduced vision. The cause of that is not specifically known, but nothing in the evidence to suggest it related to this peculiar feature of the ability of the ball to deform. So the vast bulk cases are not related to it.

Number two, blow-out fractures: that is not the type of injury sustained by the plaintiff in this case. It is within the class of two choroidal ruptures, as reported, that there is any evidence that is consistent with this penetrating type of injury - - -

KIRBY J: That is lacrosse and they wear a helmet there, so we were told.

MR McCORMACK: Yes, may it please. I was looking at point 2 at page 411 Justice Kirby, for indoor cricket.

KIRBY J: I see, I was looking down the page.

GLEESON CJ: Could I ask you about those indoor cricket figures. Were they in relation to batsmen or to players?

MR McCORMACK: It is not known, may it please.

GLEESON CJ: Is it known what percentage of those were batsmen and what percentage were fielders?

MR McCORMACK: No, if it pleases your Honour the Chief Justice, there was no rational probative evidence as to the basis upon which these figures were generated.

HAYNE J: There is some evidence at page 413, at point 2, is there not?

Unfortunately in indoor cricket many of the injuries occur to the keepers and the fielders - - --

MR McCORMACK: In that context, yes. If it pleases Justice Hayne that goes back to an answer I gave to his Honour the Chief Justice, that it is all players on the field who are at risk.

GLEESON CJ: Am I right in thinking that in indoor cricket there is a limit to the extent to which the wicket keeper can stand back from the stumps, a physical limit?

CALLINAN J: There is a net or something - - -

MR McCORMACK: I am unable to answer that I am sorry.

McHUGH J: The court cannot be more than 30 metres long and the pitch is 20 metres, so you can only go back so far.

MR McCORMACK: Yes.

CALLINAN J: Was there not evidence that the ball would be hit much harder than it could be bowled? At any rate I think that is only common sense, is it not. People cannot bowl as fast as the ball can be hit.

McHUGH J: When you provide for the runner and the bowlers then there could not have been too much space for the wicket keeper to move back, I would not have thought.

MR McCORMACK: For what it is worth, Justice McHugh, I have been to one of these courts and it appeared to me something of the order of 6 to 7 metres was available behind the wicket to the back. There is a net at the front with a doorway, a wire gate, and apparently the players play at own risk. The evidence showed was the favourite target which would be belted and one got some kudos if one was able to belt the warning sign off.

GLEESON CJ: If your client had managed to connect with the shot he was attempting to play in the present case, I would have thought the person who was at greatest risk of losing an eye was the fielder.

KIRBY J: Perhaps he would have been here before us.

MR McCORMACK: Or the bowler, may it please. The bowler, of course, is standing right on the line of travel of the ball to the gate, and apparently that is a higher score if one goes straight ahead with a forward drive as opposed to a shot.

GLEESON CJ: He was trying to play a pull shot.

MR McCORMACK: He was indeed.

KIRBY J: We are getting into technical matters now.

MR McCORMACK: I am happy to deal with that - - -

GLEESON CJ: He was trying to hit the ball to the side rather than the front.

MR McCORMACK: Yes, it was a full toss, and apparently - no, I withdraw that, I cannot say it as high as that, but it is not uncommon for a full toss - - -

CALLINAN J: Yes, it was a ball at upper chest level and you cannot play a full toss with a straight bat.

MR McCORMACK: It has got to be a pull shot.

CALLINAN J: So, inevitably the risk of a ball coming off the edge, as occurred here, is much higher.

KIRBY J: I hope this is not new evidence.

MR McCORMACK: Justice Kirby, I have not said anything - - -

CALLINAN J: Everybody knows. It is a matter of full knowledge about straight bats.

KIRBY J: Not everybody.

GLEESON CJ: Mr McCormack, for the benefit of the people in the next case in the list, could you indicate how long you are likely to require to complete your argument?

MR McCORMACK: Maximum 10 minutes. I am in your Honours' hands - - -

GLEESON CJ: How long do you think you will be in reply, Mr Spinks?

MR SPINKS: Only a few minutes, your Honour.

GLEESON CJ: Yes, we will sit on it to finish the case today.

MR McCORMACK: If it please your Honours, I was dealing with the issue of serious eye injury and it is my respectful submission that the type of warning sign, should one be compelled to be put there, is not of a nature which would have precluded the plaintiff playing in any event, and in terms of causation the warning sign is one thing. Her Honour found that this plaintiff fully appreciated the risks that he was facing in playing this game. It is important to bear in mind, as the evidence reveals, that this was not his first game, it was his second game. He had had full exposure to it the week before; the speed, the location, the players, all of the surrounding circumstances which go to his state of mind when he fronted up on 12 March for the second game. It did not come as a surprise to him. He came to it in circumstances of 16 years of history in country cricket where he played on a weekly basis and always wore a mask, a full outdoor helmet - - -

KIRBY J: Suddenly he comes to your client, no masks, no signs.

MR McCORMACK: It if please your Honour Justice Kirby, the plaintiff made clear that he did not always wear the mask, he only perceived that to be of assistance when he was batting. He was asked questions in cross-examination as to what do you do if you were the wicket keeper and the ball was to pass, what risk do you see? His answer was "I was far enough away that I could get out of the way". Her Honour, in my respectful submission, her judgment at page 512 under the heading, "Specific warning of risk of eye injury", at line 4 through to point 3 on the following page is to be read as her Honour finding - and I understand there is no contest that her Honour's finding as to what the plaintiff understood to be the case is in any way capable of being disturbed as a primary finding of fact. Her Honour's finding is that the plaintiff fully appreciated the risk and therefore a sign would not have made any difference. If there is a duty to put a sign, in this case it would not have made any difference, causation would not been established.

KIRBY J: That is not available to you in the protective gear case, because her Honour found that if there had been such gear he would have worn it.

MR McCORMACK: Yes, that is so, Justice Kirby.

KIRBY J: It is not available to you in the warning case.

MR McCORMACK: Yes, and I do not go back to that area.

KIRBY J: I just wanted to get it clear in my mind.

MR McCORMACK: Yes, indeed. The only submission I would make in that regard is in terms of the events and the circumstances surrounding this accident which need to go into the scales to weigh up what is reasonable and what is not, is the role of the rules as to whether or not a helmet would, in any event, have been permitted by the umpire, who was the independent person on site whose evidence was "I would not have let them play". It is a blunt as that. Independent, unchallenged and the AICF by rule 5, there has to be special medical dispensation.

Mr Lewis, who is the Australian national coach or was at the time, gave evidence explaining his reasons, personally, with his experience as to why a helmet would not, in any event, have been suitable except if it was specially designed and he does give some examples of the brim being - a protuberance represented by the brim being removed. That was a medical case in Adelaide.

The only other matter I was going to raise with your Honours: I did note from my friend's written submission that there were two areas of my written outline of argument which needed to be changed to correctly reflect the position and if I could invite Your Honours' attention - - -

GLEESON CJ: Just give us a moment. Yes.

MR McCORMACK: At paragraph 17, page 5, second line below (b) where it says:

that such obvious risk of injury was not a matter -

I am sorry, I have not got a replacement page and I can provide it, of course. The word "obvious" should be removed and after the word "was" which is "risk of injury was", insert the words "obvious and thus was". I apologise for that.

At paragraph 21, a very short amendment at page 6, in the first line the word "therefore" to be removed and insert the words "on the facts as found by the trial judge".

GLEESON CJ: Thank you.

MR McCORMACK: If it please, your Honours, I have only one final submission to make. In this particular case, on the facts, there was a concatenation of events which go directly to the issue of causation and one - when it is looked at by standing back, was it the bowler, was it the pull shot, was it the rules, was it the nature of the ball, was it the elevated risk because of the deforming capacity, or what was it? At the end of the day, the risks all embedded in that genus of serious eye injury were found to be fully appreciated by the plaintiff, save and except the ability of the ball to deform and penetrate the bony eye orbit. That is the only qualification on her Honour's judgment and in that regard it is no more than a subset of serious eye injury. Unless I can assist your Honours further - - -

GLEESON CJ: Thank you. Yes, Mr Spinks.

MR SPINKS: The first point I wanted to make, your Honours, was that counsel for the defendant made a point that the ball could go through the gap of the helmet. What Dr Anderson actually said was that counsel for the defendant had actually purposefully set the helmet up so that the ball could pass through it and that if he readjusted is correctly then it would provide adequate protection - - -

KIRBY J: Who said that?

MR SPINKS: Dr Anderson said, at page 336 - - -

GLEESON CJ: Was it your case when you were complaining about the failure to provide a helmet, that the helmet that should have been provided was the outdoor cricket helmet?

MR SPINKS: I am going to get to that, your Honour, but this is what Dr Anderson did say in respect to the gap. He said:

This helmet has obviously been set to maximum gap to allow that situation to occur.

And that is the ball to pass through it. Then he says:

If this helmet was adjusted correctly so the gap was narrowed, then it would give quite adequate protection.

So that - - -

KIRBY J: A little bit of help for manipulation of the evidence. Counsel has been known to do that from time to time.

MR SPINKS: I will leave that up to your Honour to determine.

McHUGH J: What is meant when he says, "If the helmet was adjusted correctly"? Does he mean manually by the wearer, or is he talking about the design?

MR SPINKS: Yes, just manually by the wearer. It had a moveable lower protection, and counsel for the defendant had opened it right up so the ball could fit through, but he said if you just adjust it back it will be quite adequate to perform the function of protecting the wearer.

KIRBY J: On the very rare occasions that I ever watched it on television that seems to be what they do in outdoor cricket. They seem to be peeping out. That is at least my impression as a complete novice, and I will speak to Justice Callinan later who can put me straight about all this.

MR SPINKS: I think the - - -

CALLINAN J: Raising the protective part may also obstruct the vision. It may not be nearly as simple as that. It may protect against contact, but obstruct the vision. I had the impression that Dr Anderson was not entirely satisfied. Dr Anderson seemed to be of the view that there had still not been a helmet appropriate and satisfactory for this game.

MR SPINKS: This is what Dr Anderson said at page 324:

What do you say about the suitability or otherwise of that helmet for indoor cricket?

He says:

I think with the visor removed, and it has a removable visor, then it would probably be more than adequate. The one query we had about the visor - the potential for injury can be eliminated by removing that. In a sunny situation players like the visor but in indoor cricket you don't need the visor.

It is an unequivocal statement of his opinion that without - - -

KIRBY J: The visor is basically cosmetic. It is to keep the sun out of your eyes in an outdoor place and therefore, in so far as you use it inside without any sun, it is really not to any point.

MR SPINKS: Dr Anderson was happy. He discussed the potential for injury. He said that can be eliminated, and he thought with the visor removed and that helmet was perfectly capable - - -

GLEESON CJ: Was that your case? That the helmet that should have been supplied was the outdoor cricket helmet with the visor removed? That is what I am trying to find out.

MR SPINKS: That is the second point I wanted make. There was a number of helmets tendered. Unfortunately, the plaintiff did not own all of those helmets and they had to be returned to the owners. That helmet that was just shown to you was only one helmet. That helmet that Dr Anderson said was suitable was, in fact, a hockey helmet, and he said that that hockey helmet would have been completely suitable for the game of indoor cricket.

So our case was there was a suitable helmet. Dr Anderson stated that. It would have offered protection, it was not dangerous to other players, and - - -

KIRBY J: Where did Dr Anderson say that the hockey helmet would have been suitable?

MR SPINKS: At page 324, he says, "Do you know from your own experience - - -

GLEESON CJ: Which line?

MR SPINKS: Top of first paragraph:

Do you know from your own experience what sort of helmet that is? I think it's probably a hockey helmet. It's very similar to the design that's used in both ice hockey and in field hockey by goalies.

What do you say about the suitability or otherwise of that helmet for indoor cricket?---I think with the visor removed, and it has a removable visor, then it would probably be more than adequate. The one query we had about the visor - the potential for injury can be eliminated by removing that.

GLEESON CJ: What I want to know is this. Was it your case that the respondent was negligent in not providing one of the available kinds of helmet, or was it your case that the respondent was negligent in not designing a suitable helmet?

MR SPINKS: Not providing an available design of helmet.

GLEESON CJ: It was the former, not the latter?

MR SPINKS: Yes.

KIRBY J: He did not have to design one because there was already one with a removable visor.

MR SPINKS: That is exactly right.

GLEESON CJ: That is what I wanted to know, that was your case?

MR SPINKS: Yes. The other point was, the whole issue with the visor was, her Honour said herself in her reasons that she accepted that the visor could be removed. She said it at page 305 of the appeal book. There were so many helmets floating around at that stage her Honour says this:

McHUGH J: What page is this?

MR SPINKS: Page 305, just below paragraph 2, it is actually French DCJ, the trial judge states:

If I could just say this: it's possible to get a helmet without a visor, we know that, but I'm just saying that particular one because there was a lot of evidence about the availability, price and things -

and Ms Vardon, who was then counsel for the appellant, said:

Put aside the visor because I think we know what your views on the visor already?

Answer "Yes". So her Honour was quite satisfied there were helmets without visors and Dr Anderson himself had one himself had one with the removable visor. I think, focusing in on that paragraph from Dr Anderson, that it is clear that him being the only person who conducted any testing, him being the only person who had reviewed the literature, was the only person capable of forming an opinion on the suitability of the helmet and he did in that paragraph, and he clearly stated that that helmet, as presented to him, was more than suitable, it reduced the risk of injury to other players.

The only other point I wanted to make was that counsel for the defendant put up the proposition that the umpire could have somehow been an interfering factor in refusing to administer the rules. The fact was that the umpire was just an employee of the defendant, under his direct control and supervision. If you refuse to implement the rules, as the defendant saw fit to play the game under, he could have fired him or replaced him or directed him to - so the proposition that the umpire was some independent person floating around hindering the defendant in the discharge of their duties was not supported by the evidence. Your Honours, unless I can assist you with anything more, that the is appellant's case.

GLEESON CJ: Thank you, Mr Spinks. We will reserve our decision in this matter.

AT 4.33 PM THE MATTER WAS ADJOURNED