In the decision of Redding v Manly Life Saving Club Inc & Anor [2018] NSW DC 278 District Court Judge Russell found in favour of the plaintiff, a 16 year old girl and member of the Manly Life Saving Club.  The plaintiff was assisting in running a Manly Club BBQ to raise funds. Whilst assisting in clean-up she walked through an upstairs function room where 4 or 5 boys were playing an informal game of cricket.  She saw the boys hit a number of balls in the room.  She spoke to them.  She was crouching down at her bag to get her phone out when she was struck in the left eye by a ball.

Some of the boys gave evidence about the game.  The ball was harder than a tennis ball.  The boys denied they were hitting the ball hard.  They denied taking big swings of the bat.  They recall seeing the plaintiff in the function room before she was struck.

The defendants pleaded the materialisation of an inherent risk pursuant to section 5I of the Civil Liability Act 2002 (NSW) (CLA).  That provision provides a complete defence to a claim if the harm arose by reason of the materialisation of an inherent risk.

The second defendant alleged that the plaintiff’s injury arose out of an obvious risk within the meaning of section 5F of the CLA.  By section 5F of the CLA in order for the obvious risk defence to be sustained the risk must be obvious to a reasonable person in the position of the plaintiff.

The judge found that the aim of the game was for the batsman to defend the ball and not to be bowled out and that the shots played before the crucial shot which struck the plaintiff were dead bat or defensive shots which were simply padded to the ground and only went 1 or 2 metres away from the bat.  The plaintiff had observed the manner in which the game was being played as she passed through the function room and onto the kitchen.  The shot that caused injury to the plaintiff was found to be a half volley and it was received by the second defendant who was batting at the time, and he was not an experienced cricketer.  He had little control over where the hit the ball and whether it was a fast or slow delivery.  He hit the ball and it travelled and bounced towards the plaintiff.

In his analysis of the essential ingredients to establish negligence, the judge found that the risk of harm was the risk that a ball struck by a batter would hit and injure the plaintiff and that the risk was foreseeable. The risk of harm was not insignificant.  He found that a reasonable person in the position of the second defendant would have taken precautions against the risk as there was a significant probability of harm.  The burden to take precautions to protect the plaintiff from injury were minimal. The precaution the boys should have taken was to cease playing whilst the plaintiff passed.  It was a simple precaution to take and it would have avoided the injury.  The judge considered that taking the game outside or using a softer ball were not credible alternatives.

It was put by the second defendant that the inherent risk involved the plaintiff standing close to a batsman in an informal game of indoor cricket and paying no attention to the batsman and not being part of the contest. It was said this inherent risk cannot be avoided by the exercise of reasonable care.  The judge rejected this proposition and found that it was not inherent or inevitable that a person would be injured and that a reasonable person could have taken precautions to stop the game to avoid hitting the plaintiff, which was not done.

Thus the exercise of reasonable care would have avoided the risk of injury and therefore the inherent risk defence could not stand.

Relevantly, the judge found that the plaintiff was not paying any attention to the game and she was certainly not a participant in it.  But because the boys had been playing a careful and confined game before the hit that injured the plaintiff it was not reasonable for the plaintiff to appreciate that the ball struck by the second defendant would go further than this and strike her.  He thought a reasonable person who watched this game of cricket up to this point would not have thought that there was an obvious risk of harm from the way the boys were playing until she was struck by a shot played by the second defendant.

His Honour also rejected a defence of contributory negligence.  He found that having regard to in the position the plaintiff was when attending to her phone there was nothing to indicate that she knew or ought to have known that there was a risk that she would struck by the ball.  There was no need for her to keep a proper lookout to protect herself because the previous hits had shown the ball was unlikely to strike her.

Accordingly, the court found in favour of the plaintiff and awarded her substantial damages for her injuries.

The decision emphasises the need for participants in recreational activities to be alert to those in their vicinity who are not participants and who may be exposed to the risk of injury. It will be difficult to invoke the protections offered in the CLA in recreational liability claims if the participants are aware of these non-participants and do not take reasonable steps to protect from harm that may obviously flow from their activity.