Unsuccessful appeal by Football Club, League and local Council against finding of liability in negligence for failing to mark AFL boundary line an adequate distance from boundary fence.

In Issue

  • Whether leave to appeal ought to be granted on the basis that the trial judge erred in his analysis of the evidence

The Background

In June 2009, Beau Hart (Mr Hart) was playing Australian rules football for the Beaumaris Football Club (the Club) at Banksia Reserve Oval when he tried to take a mark and landed on the cyclone wire boundary fence, severely injuring his left knee.

Hart issued proceedings against the Club, the football league, the South Metro Junior Football League (the League), and the owners of Banksia Reserve, the Bayside City Council (the Council), on the basis that the boundary line was too close and that they failed to take reasonable care to ensure that the distance between the boundary line marked on the oval and the fence line complied with the minimum requirement of three metres, as prescribed by the Victorian Amateur Football Association (the VAFA).

The Decision at Trial

Relying on a photograph, the trial judge held that, on the balance of probabilities, the distance between the marked boundary line and the fence was significantly less than the mandated league minimum of three metres and that the Club, the League and the Council were negligent.

The Issues on Appeal

The issues on appeal included whether the evidence presented at trial supported the conclusion that the distance between the boundary line and the fence was inadequate and that the Club, the League and the Council were negligent and, in particular, whether the trial judge erred by concluding that the distance between the boundary line and fence was inadequate based on his analysis of a photograph and calculated measurements based on it.

The Decision on Appeal

The Court of Appeal determined that the methodology adopted by the trial judge to measure the distance between the boundary line and the fence was erroneous, and had the effect of invalidating his conclusion that the distance from the boundary line to the fence was significantly less than three metres. Accordingly, the Club, the League and the Council were granted leave to appeal.

As to the merits of the appeal, the Court of Appeal relied on evidence that Hart leapt for the mark while in the field of play and fell onto the fence without anything unusual or untoward happening to propel him into it. In other words, the accident occurred in circumstances in which a young, albeit tall and athletic, footballer performing a standard game play, namely flying for a mark near the boundary line, somehow landed on the full on the fence. The probable conclusion of fact from the evidence was that, at the point where the accident occurred, the boundary line was marked at a distance of less than the prescribed three metres from the boundary fence.

The Club, the League and the Council were therefore found to have been negligent and the appeals were dismissed.

Implications for you

The case highlights the potential exposure to liability where a court is required to draw inferences from competing evidence relied upon by the parties. In this case, the court did not accept the evidence led by the Council, the Club & the League as to the distance between the boundary line and the fence because it was qualified by the fact that the measurements were taken by sight and not by precise calculation and they were not checked by anyone else. The evidence was therefore regarded by the court as being deficient, and this, coupled with a concession that the accident would not have occurred if the boundary line had not been too close, led the court to accept the probable conclusion of fact advanced by Mr Hart.

Beaumaris Football Club & Ors v Beau Hart & Ors [2017] VSCA 226