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					             IN ASSOCIATION WITH
THE STANDING COMMITTEE ON RECREATION & SPORT
                   (SCORS)




    Duty of Care & Key Pieces of
             Legislation




                    10 November 2009




     The Australian and New Zealand Sports Law Association
                      www.anzsla.com.au
                                               Index


                                                                               Page

Duty of care                                                                    3
 Introduction                                                                   3


Torts                                                                           4
 Negligence                                                                     4
        Introduction                                                            4
        Duty of care                                                            4
                 Who owes a duty of care?                                       4
                 Relationship between sports administrators and players         5
        Breach of duty - standard of care                                       6
                 Age of the plaintiff                                           7
                 Consider the defendant’s conduct                               9
                 Error of judgment or negligence?                               9
                 Factors in determining standard of care                        10
                 Obligations of sports participants and officials               12
                 Omissions                                                      15
                 Officials and participants                                     15
                 Participants and spectators                                    17
 Occupier’s liability                                                           19
 Vicarious liability                                                            26
 Private nuisance                                                               29


WA Legislation                                                                  32
        Civil Liability Act                                                     32
        Volunteers and Food and Other Donors (Protection from Liability) Act    33
        Working with Children (Criminal Record Checking) Act                    34




www.anzsla.com.au                                                                     2
Duty of Care - General
Introduction


1.     The meaning of the expression “duty of care” depends on who you are talking to
and in what context. In very general terms it can probably best be described as the
obligation one person has towards another to ensure that they don’t cause them to suffer
harm or damage.



2.     Duty of care is perhaps most strongly associated with negligence but in recent
years there has been a steady increase in legislative initiatives that have extended this
expression to other areas of the law including working with children, occupational health
and safety (OH&S), and anti-discrimination issues. In each case there is an obligation (a
duty, if you like) on clubs and associations to ensure:

       •   the safety and welfare of children (working with children),

       •   that grounds and facilities are safe (OH&S), and

       •   that participants are not subject to discrimination, racial vilification or
           harassment (anti-discrimination).



3.     In negligence (which is about the failure by a person to exercise reasonable care
and skill), and where the legal expression ‘duty of care’ is most commonly encountered, it
should be noted that it is only owed to persons whom it is reasonably foreseeable will
suffer injury by a lack of due care.


4.     Foreseeability in negligence is a question of fact. It is based on an objective test of
whether a reasonable person would have foreseen that there was a real risk of the
likelihood of injury, taking into account all the circumstances of the particular case, to
people in the plaintiff’s position. Could a reasonable person have anticipated the risk of
harm occurring and taken the necessary steps to avoid the risk?




www.anzsla.com.au                                                                            3
Torts
(1) Negligence

Introduction


5.     As far as sport is concerned, negligence is an appropriate action for an injured
player to use to recover compensation for any injuries that they may have received from
their involvement in sport, including from an act of sports-field violence. Negligence is
often also an appropriate action for the recovery of damages for injuries that participants,
including referees, umpires and spectators, may incur as a result of a lack of care by
occupiers or event organisers.



6.     It should be noted that legal issues relating to sporting venues are not necessarily
always contained within the stadium or at the venue. The sporting action may take place
within the stadium or venue, however residents living near to such events will often have
to contend with problems such as spectators, noise levels and quite possibly the direct
effects of what was happening inside the stadium or venue, such as cricket and golf balls
being hit outside the venue. The law relating to damage outside a stadium or venue
caused by the activities that take place inside may also fall within the ambit of the law of
torts and create a cause of action in negligence or even private nuisance.



Duty of care

Who owes a duty of care?



7.     In very simplistic terms, a duty of care is a duty owed by a defendant to a plaintiff
based on a particular relationship between the parties, e.g., players in rugby league owe a
duty of care to other players not to execute ‘spear tackles’ on them or players
participating in Australian rules football owe a duty of care to other players to keep their
elbows down when tackling or bumping another player. In each case, not only is it against
the rules, but it also recognized as an act which carries with it a high degree of risk of
injury. If a player is injured as the result of such a tackle, the offending player/s may find
themselves being sued in negligence for the injuries the tackled player may sustain. A
good example is Jarrod McCracken when he successfully sued Melbourne Storm Rugby
League Football Club and two others in 2005 for executing a spear tackle on him.

It is a legal obligation to avoid causing harm where the harm is reasonably foreseeable.




www.anzsla.com.au                                                                                4
8.     In general, a duty of care is owed only if a defendant ought reasonably to foresee
that their conduct may be likely to cause loss or damage to the plaintiff or a class of
persons to which the conduct belongs. The duty that a defendant owes is not to ensure
that no harm befalls a plaintiff as that would effectively make them an insurer, but only a
duty to take reasonable care.


Relationship between sports administrators and players


9.     It is unlikely that sport and recreation administrators owe a duty of care to
participants in a sport or recreational activity in determining the rules of the game. As far
as a court is concerned, policy considerations suggest that no duty was owed having
regard to the public utility of sports and the undesirable consequences of placing legal
obligations upon administrators who may be part-time amateurs.



       Example

       In Hyde v Agar & Ors; Worsley v Australian Rugby Football Union Ltd & Ors, a 1999
       case, the appellants (the original plaintiffs) were two young men who had
       sustained serious spinal cord injuries playing rugby union. The respondents were
       individual members of the International Rugby Football Board. The Board members
       attended annual meetings as representatives of national member Unions and there
       were clear indications that the sports administrators saw themselves as setting out
       the rules for the sport of rugby and that it regarded safety of players as an
       important factor. It was argued by the appellants that the assumption of control by
       the Board and reliance by players were arguably matters giving rise to a prima
       facie duty of care. The class of potentially affected persons, although large, was
       finite and readily identifiable. However, in arguing that a duty of care was owed,
       the appellants were treading fresh ground.

       The High Court held that there was no duty of care owed by the Board to the
       respondents. To hold that the Board members owed a duty of care to each person
       who played rugby union was unrealistic, raising the spectre of an indeterminate
       number of claims by an indeterminate number of people throughout the world. The
       decision to compete was freely made by adult players and in making that decision
       the players had to accept responsibility for the risks associated with playing a
       physically dangerous sport such as rugby. The Board, as the responsible law-
       making authority for rugby union, did nothing which facilitated or encouraged the
       breach of the laws about scrummaging by the opposing players which was the
       immediate cause of the injuries to the respondents.



www.anzsla.com.au                                                                               5
10.       The High Court decision is limited to those adult persons being hurt by the conduct
of other participants who participate voluntarily in a sport which carries with it the risk of
injury and it can reasonably be assumed that the individuals concerned will take personal
responsibility for what they do.



          Example

          In Insurance Exchange v Dooley (2000), during a baseball game the plaintiff, a
          member of the fielding team, deliberately obstructed the first defendant, a member
          of the batting team, as he attempted to run for second base and collided with the
          plaintiff who was injured. The plaintiff sued the first defendant and the League that
          controlled the baseball competition claiming damages for negligence.

          It was held, that even if baseball was not officially a “contact sport”, collisions such
          as that between plaintiff and Dooley commonly occurred, did not cause injury, and
          were accepted by participants in the sport as an ordinary feature of their game.
          There was no evidence that the League “allowed” any risks to exist, or “allowed”
          games to be played with violence, or “tolerated” any dangerous state of affairs in
          the competition it organised.



Breach of duty — standard of care


11.       Once a duty of care is established, the plaintiff has to show that the defendant has
breached that duty by falling below the standard of care imposed by the law. This requires
that a defendant exercise a certain degree of care or standard of conduct (based on the
reasonable person) towards others. Or to put it another way, would a reasonable
defendant have foreseen that their conduct involved a degree of risk of injury to the
plaintiff?



12.       Western Australia, like other jurisdictions around Australia, implemented civil
liability reforms which have codified the law as to the standard of care (see the Civil
Liability Act 2002, sections 5B and 5C). The first example aside, as this was based on the
common law before the statutory changes took effect (Campbelltown City Council), 1 the
examples below illustrate how easy it is for a person to get injured and for litigation to
follow:



1
 Note that the year in brackets is when the case came before the court, not the time
when the accident happened which could be 3 or 4 years earlier. And in the Campbelltown
City Council case, it would probably have been decided the same today anyway.


www.anzsla.com.au                                                                                6
       Examples

       In Campbelltown City Council v Frew [2003], the respondent child was injured
       when she slipped on the “nosing” of tiered seating after getting out of the water at
       the appellant’s swimming pool. It was held on appeal that while the council was
       aware the tiers were used as steps, it had not acted unreasonably as it had taken
       such care as was reasonable in the circumstances and that where the risk was
       obvious, it was expected that persons would take care for their own safety (an
       “obvious risk” is one that is obvious to a reasonable person in the position of a
       person who suffers harm: see s 15).



       In Williams v Latrobe Council [2007], the plaintiff, an Australian Rules footballer,
       suffered a serious ankle injury when his foot landed awkwardly, partly on the top of
       a cover and partly on the surrounding soil. It was held that a reasonable council
       and a reasonable football club would have foreseen that if the cover was not flush
       with the surrounding soil, an uneven surface would be created which would give
       rise to the risk of injury to a footballer, i.e., a risk that was more than foreseeable
       and could (and did) result in serious injury. It was obvious and could be removed
       without any great expense.



       In Green v Country Rugby Football League of NSW Inc [2008], the court had to
       consider the liability of the Country Football League for the injuries sustained by
       Green, a 16-year-old playing in the position of hooker against an open age rugby
       team, and concluded that none of the grounds were established. In other words,
       the Association had not breached its duty of care. These grounds included that the
       League was negligent in allowing the plaintiff to play in an open age competition
       notwithstanding his physical characteristics making him more susceptible to scrum
       injury, not requiring medical examinations of players prior to registration, failing to
       adequately warn players of risk of injury or disseminate information on risk of
       injury and how to minimise it, failing to de-power scrums or instructing referees to
       de-power scrums, failing to change the rules of rugby league, and allowing
       unaccredited coaches to coach and their teams to participate.



Age of the plaintiff


13.    The age of the plaintiff is extremely important. As far as the courts are concerned,
children are much more likely to act inadvertently and they certainly lack the judgment of
an adult when it comes to assessing risk, so it is important to be on guard.


www.anzsla.com.au                                                                                7
       Examples

       In Blunden t/a Southern Water Sports v Solomon [2005], the question the court
       had to consider was whether safety instructions given to a 16-year-old novice jet
       skier were adequate to discharge the necessary duty of care. The failure of the
       appellants to take into account the age of the respondent, his inexperience as a jet
       ski rider, his lack of knowledge about mechanically propelled vehicles and the fact
       that experienced skiers were aware that novice skiers reacted in particular ways to
       an emergency or danger, which the appellant would be well aware of, constituted a
       breach of the appellant’s duty of care.



       In Macarthur Districts Motor Cycle Sportsmen Inc & Ors v Ardizzone [2004], the
       respondent, a 12-year-old motocross rider, was injured when another rider ran into
       him. Here it was held that foreseeability of injury to the respondent was clear if
       there were insufficient track marshals.



       In Shellharbour City Council v Rhiannon Rigby & Anor [2006] the plaintiff, a 14-
       year-old girl, was injured when she fell at the first jump of a BMX track. The Court
       of Appeal dismissed an appeal by the council and the BMX Club against a finding
       that the ramp and the first jump constituted a foreseeable risk of injury in the case
       of inexperienced adults, a risk that was increased in the case of children such as
       the plaintiff who was 13 at the time of the accident.



14.    However, while the age of the plaintiff is a very important consideration, maturity
and judgment are also important factors that a court will take into account in appropriate
circumstances. These will vary from individual to individual but if it can be established that
the individual has had considerable experience in the sport and as a result is able to
assess the risks for him or herself, then he or she may have to bear the consequences of
their actions.



       Examples

       In Macarthur Districts Motor Cycle Sportsmen Inc & Ors v Ardizzone participation
       was voluntary and the participants, even though they were children, understood
       motocross was inherently dangerous, but they were not able to appreciate and
       respond to risks in the same way as adults who controlled and ran the events. In
       this case the court was of the view that a child could not be expected to be able to
       make a good assessment of risk or whether to participate, instead relying on the



www.anzsla.com.au                                                                             8
       adult organisers to take all necessary precautions to ensure the safety of
       participants to foreseeable risk.



       In Leyden v Caboolture Shire Council [2007], a 15-year-old, who had been riding a
       BMX bike since he was 10-years-old, was seriously injured while attempting a jump
       which he knew to be dangerous at a BMX track controlled by the Council. In this
       case though it was held that he had sufficient maturity to understand and accept
       the risk involved.




Consider the defendant’s conduct



15.    It is a question of fact whether the particular conduct complained of is a breach of
duty and it focuses on the conduct of the defendant and the risks created by their conduct



       Example

       In Gray v State of Queensland (2000), a rugby league game was played hard with
       effective tackles and there was no evidence that it was played violently with
       breaches of the rules putting the other team at risk of injury, thus there was no
       breach of duty.




Error in judgment or negligence?



16.    It can, however, be difficult to ascertain whether misjudgment amounts to a mere
error of judgment or negligence



       Example

       In Kosciusko Thredbo Pty Ltd v Smith (2001), a ski instructor was found to have
       failed to allow a sufficient run out area when teaching beginners to snowplough by
       failing to take into account environmental factors on the day, failing to identify
       potential obstacles and failing to take steps to minimise the impact.




www.anzsla.com.au                                                                             9
Factors in determining a standard of care

17.   Factors in determining the reasonable standard of care include:

          •   the probability of risk or injury (s 5B(2)(a) of the Civil Liability Act)



              Examples

              In Bolton v Stone (1931), the court held that the likelihood of risk of being
              hit by a cricket ball hit out of the ground and hitting a passer-by was so
              small as not to be reasonably foreseeable



              But in McCracken v Melbourne Storm Rugby League Football Club and 2
              Ors, the probability of injury from a spear tackle in a game of rugby league
              was significant because of the inherent danger in a player being driven into
              the ground head first.



          •   the seriousness of the consequences if an injury occurs (s 5B(2)(b)
              of the Civil Liability Act)



              Example

              In Bujnowicz v Trustees Roman Catholic Church [2005] NSWCA 457 the risk
              of serious injury to children on the playing field was foreseeable if regular
              and systematic checks of the grounds for holes were not carried out.



          •   opportunities for, and cost of, eliminating the risk (s 5B(2)(c) of the
              Civil Liability Act)



              Example

              In Anderson v Mount Isa Basketball Association Incorporated (1997), the
              plaintiff tripped over some cables at the edge of the court while running
              backwards while umpiring a match. The association was found to be liable
              largely on the basis that instruction to the plaintiff referee to move sideways
              rather than run backwards could have been done without any great
              difficulty, expense or inconvenience.




www.anzsla.com.au                                                                             10
          •   the public utility of the defendant’s conduct (s 5B(2)(d) of the Civil
              Liability Act)

              Where adequate supervision is provided and there is no unnecessary
              element of danger, then as a general rule the organising of sports or games
              which have an associated element of risk attached to them will not found a
              cause of action in negligence.



              Example

              In Gray v State of Queensland (2000), a student was injured while playing
              inter-school rugby league for his school. There was no evidence that the
              game was being violently played or that there were breaches of the rules
              such that the plaintiff or his team were at risk of injury. Thus, there was no
              breach of duty by the defendant.



              However, if the degree of risk is unreasonable, then liability will attach:



              Example

              In Ohlstein bht Ohlstein & 3 Ors v F & T Lloyd trading as Otford Farm Trail
              Rides [2006] the appellant, a five-year-old, was injured while participating
              in a horse trail ride. It was held that the organisers of a horse trail ride had
              been negligent by failing to ensure that the trail leaders had used a lead
              rope to control the appellant’s horse, which was a simple, obvious and
              inexpensive way to have significantly reduced the danger. It was common
              knowledge, and therefore foreseeable, that any horse could make sudden
              and unexpected movements and that for a five-year-old and a beginner, she
              would not be physically adept and lacked the necessary perception or skill
              to control the horse if it departed from its expected behaviour. By failing to
              use a lead rope, the defendant, who owed a duty of care, did not act with
              reasonable care.




www.anzsla.com.au                                                                           11
           •   whether the danger from the activity was hidden or concealed



               Example

               In Staines v Commonwealth of Australia (1991) the plaintiff stepped into a
               hole which was covered by long grass while walking from a playing area
               controlled by the defendant, which while not a pathway was used regularly
               for access to and from the playing field. It was held that it was incumbent
               upon the defendant to institute and maintain some appropriate system of
               inspection by instructing the groundsmen who performed the mowing to be
               on the lookout for any dangerous conditions.




Obligations of sport and recreation participants and officials

Player against player


18.     Players owe a duty of care to each other, albeit a reduced standard of care. In
determining duty, while the courts will have recourse to the rules of the particular sport,
particularly where they might relate to safety and the playing culture of the game,
whether or not a player has been negligent will depend upon whether the defendant has
failed to exercise reasonable care for their opponent’s safety and the risks inherent in the
game.



        Examples

        In Pollard v Trude [2008] the plaintiff was unable to recover damages when he was
        struck by a golf ball where the magnitude of the risk and the likelihood of its
        occurrence together with the common expectation of both the plaintiff and the
        defendant was that the latter would play the shot indicate that the response of a
        reasonable person in the circumstances would have been to take the shot.



        In McCracken v Melbourne Storm Rugby League Football Club and 2 Ors [2005] the
        probability of injury to a player from a spear tackle in a game of rugby league is
        significant, a fact which is recognised in the rules of the game and prohibited as a
        dangerous tackle, which meant that in executing such a tackle on the plaintiff, the
        defendants had breached their duty of care.




www.anzsla.com.au                                                                             12
19.      Participants will be judged by the standard of the ordinary reasonable player or
participant. What are the relevant circumstances that need to be taken into account in
trying to determine liability? A number of issues can be identified and they include:



      • whether the sport was a contact or non-contact sport;

      Different standards apply to different sports. For example, in boxing the idea is to
      achieve bodily contact. In rugby and Australian Rules body contact is incidental but
      inevitable. In soccer, a basically non-contact sport, contact is also incidental but
      inevitable but at a lower level than either rugby or Australian Rules. In golf, contact
      should not occur


      • whether the injury arise from a players instinctive actions carried out in the heat of
      the game or took place behind the play;

      • what is the level of risk normally accepted by participants as inherent in the sport;

      • what the actual level of risk was;

      • the cost and availability of reducing the risk;

      • whether the rules of the game have been broken by the defendant; and


      • the purpose and social utility of the sport.


Coaches, instructors, supervisors and medical staff


20.      A sportsperson with supervisory responsibilities, and their club or association (if
vicarious liability can be established) might be liable for:



            •   the negligent supervision of a player



            Example

            In Foscolos v Footscray Youth Club and Samuel Parker (2002) an inexperienced
            wrestler was seriously injured by a dangerous throw by his opponent which, if
            the coach had been properly supervising the wrestling contest and not talking
            with a fellow coach, would not have been allowed.




www.anzsla.com.au                                                                               13
          •   training or playing in extreme conditions (particularly the heat)

              This could also include training or playing during periods of high
              temperature or humidity without taking adequate precautions to ensure
              proper hydration of participants. Sports Medicine Australia has developed a
              checklist which sets out a number of considerations that sports
              organisations should take into account when considering whether to hold an
              event including:

                     o   air temperature and humidity

                     o   time, duration and intensity of the event

                     o   whether the participants have had preparation for exercise under
                         extreme conditions

                     o   the physical characteristics of the athlete to participate in
                         extreme conditions

                     o   the age and gender of the participants (young children and
                         female participants are more susceptible to dehydration and heat
                         stroke)

                     o   any predisposed medical conditions of participants, and

                     o   whether there are adequate hydration opportunities throughout
                         the event for the participants



          •   inappropriate tactics

              A coach who encourages aggression, either expressly or implicitly, which
              results in injury to either their own player or an opposing player might leave
              themselves and the club open to liability



          •   asking or forcing a player to participate whilst under injury or
              supplying players with drugs, such as pain-killing injections or drugs to
              assist in recovery from injury, which facilitate further injury.




www.anzsla.com.au                                                                        14
Omissions



21.    A coach, referee/umpire, instructor or supervisor may also be liable for omissions,
eg, for failing to give the right advice or taking the right precautions

           •    the swimming coach who fails to properly instruct a member of their squad
                on how to dive safely from the starting blocks may find themselves exposed
                to liability if the squad member is injured through the use of an unsafe
                technique. The relevant swimming association may also face liability for
                failing to issue appropriate warnings of potential dangers to coaches,
                instructors or supervisors;

            •   the weight-lifting coach who fails to advise a student on the correct way to
                lift to minimise the risk of back injury,

            •   a football coach who fails to advise a player on the correct way to tackle to
                minimise the risk of neck injury

            •   the ski instructor who fails to take proper precautions when teaching
                beginners

            •   the referee/umpire who fails to ensure that the players under their control
                are safe



22.    In demonstrations or practice games involving the participation of the coach,
instructor or supervisor and under-age or “junior’’ players, reasonable account must be
taken of the difference in size, strength and skills of the players involved



23.    The level of care required of the coach, instructor or supervisor is to protect the
safety of the players or participants under their control. Where this does not occur, as
measured against the standard of the reasonably competent coach in control of their side
or the participants under their control, then they may find themselves exposed to liability.



Officials and participants


24.    Officials, and not necessarily club officials, owe a duty of care to participants. When
the duty is performed negligently and damages result, an action may lie in negligence for
recovery of damages.



25.    It is often the responsibility of an official to determine the playability of the field.


www.anzsla.com.au                                                                                 15
This includes ensuring that a playing field is suitable for training purposes as well as for
matches:



       Example

       In Wagga Wagga City Council v Mark Sutton (2000) NSWCA 34 a footballer was
       injured during a football match when he put his foot in a hole on the playing
       surface. It was held that the onus was on the occupier council to take reasonable
       care to ensure the ground was in a safe condition for play.




26.    An official will not be liable if a player is injured but all necessary steps have been
taken to ensure that the surface was as safe as could be reasonably expected for the
training and playing of football, e.g. by the carrying out of regular inspections, particularly
after storms or if the ground is in an area where acts of vandalism are common place:



       Example

       In Lanyon v Noosa District Junior Rugby League Football Club Inc (2001) QCA 163
       the plaintiff, an unpaid junior football coach, was injured when he put his foot in a
       hole on the playing field during a training session. The defendant club leased the
       ground from Noosa Council and received a grant for ground maintenance from the
       council. In the weekend prior to the plaintiff’s injury, the ground had been used for
       a farming expo and the Court of Appeal held that when all of the circumstances of
       the case were taken into account, the club, as occupier, had taken all necessary
       steps to ensure that the surface was as safe as could be reasonably expected for
       the training and playing of football.



27.    It is certainly the responsibility of officials to ensure safe standards of competition
and to penalise unsafe behaviour:



       Examples

       In State of New South Wales v R Smith (1996) (which is the sole Australian
       authority imposing a sports official liability for a player’s injuries) the court held
       that a competent and experienced referee would have intervened to prevent a
       dangerous tackle.




www.anzsla.com.au                                                                               16
28.    Where there is little difficulty in terms of manpower or cost to minimise the effects
of a known sporting danger, there should arguably be adequate emergency procedures in
place for their treatment.




Participants and spectators



29.    Participants are expected to conduct themselves with some regard for spectators
and fellow participants. The courts have recognised that a participant is expected to do
their best to succeed and have consistently stated that the duty of care owed by a
participant must be regulated by what is reasonable in the circumstances of each case.


30.    What is reasonable in circumstances cannot be generally defined but it is
suggested that the rules may often provide a guide as to what is acceptable conduct and
what is not. In golf, for example, spectators (and participants) are required to accept that
wayward shots by others on the course are part and parcel of the game — within limits:


       Examples

       In Woods v Rogers (1997) the plaintiff, playing in a twosome, was injured when hit
       by a ball from a tee shot by the defendant playing on his own coming up from
       behind. The defendant claimed that because of the layout of the hole he had not
       seen the plaintiff and as he had been waived through by the plaintiff’s partner, the
       court accepted he was entitled to assume that he was being called through on
       behalf of the group in accordance with golfing convention and to infer that both
       golfers would maintain an adequate lookout and be able to protect themselves
       from being hit.


       However cf Ollier v Magnetic Island Country Club Incorporated & Anor where the
       plaintiff suffered brain injury after being hit in the head by a tee shot by the second
       defendant in an Ambrose competition, The defendant was an occasional golfer who
       had played about once a year over the last 20 years (including four times on the
       defendant’s course). The Court of Appeal dismissed the appeal, unanimously
       agreeing with the findings of Cullinane J who noted that the rules of golf provided
       that players should ensure that no-one is in a position to be hit by the ball or play
       until the players in front are out of range. The second defendant was aware of the
       rules of golf and was under a duty of care to the plaintiff but because of his
       defective lookout, he drove from the tee hitting the plaintiff and as a result he
       breached his duty of care.




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Error of judgment may not amount to negligence


31.    If the defendant has simply made an error of judgment which does not amount to
negligence, then the plaintiff must fail.


       Examples
       In Wilks v Cheltenham Home Guard Motor Cycle and Light Car Club (1971), an
       English case, the plaintiffs were injured at a motorcycle scramble when the
       defendant lost control of his motorcycle and passed through the safety ropes and
       landed amongst the spectators. The English Court of Appeal held that in the
       circumstances the participant was entitled to try and win and that as the
       defendant’s speed was not excessive and there were no other explanations for
       what caused the accident, the defendant was not liable. The court was of the view
       that there was no breach of duty owed by the participant to the spectator.


       However compare Payne and Payne v Maple Leaf (1949), a Canadian case, where
       ice hockey players were held liable when they started a fight and injured a
       spectator. The court was not prepared to accept that, in the stress of the
       circumstances, the players’ actions were reasonably regarded as being excusable.
       Rather, they amounted to a blatant disregard for the safety of the spectators.




www.anzsla.com.au                                                                         18
(2) Occupiers' liability
Introduction


32.    An occupier of land or premises is one who has a degree of control and
management over participants, spectators and visitors. Control and management amount
to occupation and the occupier’s duty is to take reasonable care to avoid foreseeable risk
of injury to entrants. The issue is not one of ownership.



33.    A person may own, but not be in control of premises or grounds and thus, may
have no liability for the safety of the premises or grounds, but in each case this will be a
question of fact.



       Example

       In Lanyon v Noosa District Junior Rugby League Football Club Inc (2001) the
       plaintiff, an unpaid junior football coach, was injured when he put his foot in a hole
       on the playing field during a training session. The defendant club leased the ground
       from Noosa Council and received a grant for ground maintenance from the council,
       so the club and not the council were considered occupiers and therefore liable.




34.    In determining liability, the court will consider whether the defendant has a risk
assessment system in place to identify and respond reasonably to “hazards” in its area of
control or whether it took reasonable steps to ascertain the existence of dangers which
might reasonably be suspected to exist.


Obligations of occupier and event organiser to participant


35.    An occupier is liable to a participant if they do not take adequate steps to ensure
that the venue or area for the participants is safe. They owe a duty of care to participants
to take all reasonable steps to reduce or eliminate real or significant risks which they
know, or ought to know of, to ensure that the venue or area is as reasonably safe as
possible.




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          Example

          In Lake Macquarie City Council v McKellar (2002) the plaintiff was injured while
          playing a social game of basketball when he tripped over a nail-rivet in the
          concrete surface of the basketball court, the court found the council liable as they
          failed to have in place a system of regular maintenance which probably would have
          located the nail.




36.       Failure to ensure participant safety can happen in a number of ways, including:

      o   Inadequate sporting surfaces



          Examples

          In Nowak v Waverley Municipal Council & Ors (1984), the plaintiff rugby league
          player successfully sued the League, the club and the defendant council when the
          player tripped over a protruding sprinkler and broke his leg. Notwithstanding the
          plaintiff was aware of the sprinkler, the League and the club owed a duty to the
          plaintiff because they had taken it upon themselves to organise and present the
          game. Consequently they were liable for the dangers which arose from their
          designation of that ground while the council was obliged to take positive measures
          to make the ground fit for the purpose for which it was hired.



          In Wagga Wagga City Council v Mark Sutton (2000), a footballer injured during a
          match when he put his foot in a hole on the playing surface. Here the court found
          that that the onus was on the occupier council to take reasonable care to ensure
          the ground was in a safe condition for play.



          However, compare Lanyon v Noosa District Junior Rugby League Football Club Inc
          (2001), the plaintiff, an unpaid junior football coach, was injured when he put his
          foot in a hole on the playing field during a training session. The defendant club
          leased the ground from Noosa Council and received a grant for ground
          maintenance from the council. The court held that when all of the circumstances of
          the case were taken into account, the club, as a volunteer organisation, had taken
          all necessary steps to ensure that the surface was as safe as could be reasonably
          expected for playing football.




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      o   Negligent conduct of operations at the venue

          Some operational conduct may result in a danger being created by the occupier.



          Example

          In Albany Golf Club Incorporated v Carey (1987) a golfer was struck by ball hit
          from practice tee while playing the course. The club was found to be liable because
          for a relatively small cost, the defendant could have relocated the 10th green or
          restricted the hours for use of the practice tee.



      o   Lack of verbal warnings or proper signage warning of a risk

          The duty of the occupier to warn entrants upon premises of the risks present in
          that place requires consideration in each case of whether the warning(s) were a
          reasonable response to a foreseeable risk and not the more stringent requirement
          of prevention would have prevented the injury that occurred



          Even if warnings are given, knowledge and appreciation of a danger is not always a
          sufficient answer to liability



      o   Not providing sufficient protection for the personal safety of participants

          In the case of young participants, occupiers must be prepared to accept a
          much higher standard of care because children do not have the same
          appreciation of risk as an adult does.



Where an occupier can expect a person to take responsibility



37.       Situations where an occupier may be justified in not taking steps to guard against
a “real or significant risk” and the plaintiff must take personal responsibility for what they
do could include:



      •   where the risks are small and the circumstances were such that a reasonable
          person would think the possibility of a dangerous situation being created were only
          a mere possibility;




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       Example

       In Simms v Leigh Rugby Football Club Ltd (1969), an English case, the plaintiff was
       injured when he collided with a concrete wall adjacent to the football field. The
       court held that the injuries, on the balance of probabilities, were sustained as a
       result of the tackle rather than the collision with the wall. The court noted that as
       the ground complied with the by-laws laid down by the governing body of the
       game and the players accepted the risks associated with playing the game under
       the League rules at a ground approved by the League, then the occupiers would
       not be liable



   •   where the occupier was entitled to expect that adult visitors would be
       aware of the potential danger and accept the risks as part and parcel of that
       form of activity;



       Example

       In Clarke v Coleambally Ski Club [2004] the plaintiff, a member of the public, was
       injured while attempting a backward somersault from a rope swing attached to a
       limb of a tree on land controlled by the club and overhanging the river, affirming
       the finding of Cripps JA that the plaintiff knew the water was shallow and the
       manoeuvre was dangerous and that as a result he voluntarily accepted the obvious
       risk of physical injury



   •   where the risk was obvious, that is, there was no hidden danger, then an
       occupier is not obliged to give any warning because a reasonable adult person
       would understand the risk and be capable of making a genuine and informed
       choice;



   •   where the risk was obvious, that is, there was no hidden danger and the
       occupier had given a warning by placement of signs, the he/she has told
       participants that there are risks involved in the activities, provided protective
       clothing where necessary, and employed staff specifically trained to help
       participants, the defendant’s failure to eliminate all risks will not of itself be
       demonstrative of a want of reasonable care; and




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        Example

        In Cafest v Tombleson [2003], a novice roller skater was injured while skating on
        the main rink, choosing not to use the beginners' rink. It was held on appeal that a
        reasonable person would have been aware of the risks inherent in roller skating
        and that the defendant by exhibiting warnings and providing safety equipment and
        areas for beginners to skate had acted as a reasonably prudent occupier should.



      • lack of a link between the defendant’s actions with the injury sustained by the
        plaintiff.



Obligations of occupier to spectators and other non-participants


38.     Since an event organiser hires a venue for competition purposes and is in control of
the event, they may be defined at law as the occupier. As such, the event organiser is
under a duty of care to make their premises reasonably safe for spectators and other non-
participants, such as officials.



39.     In considering what precautions are adequate, the organiser needs to take into
account the knowledge of the ordinary spectator or official. Where an action is brought in
negligence, the court will consider whether reasonable diligence would have enabled the
alleged tortfeasor to have foreseen the accident which took place.



        Examples

        In Klyne v Bellegarde (1978), a Canadian case, the organisers were held liable
        when a spectator at an ice-hockey match was injured when struck by a hockey
        stick while standing in an aisle alongside the rink which had no protective guards.
        Spectators were entitled to be protected from obvious dangers associated with ice-
        hockey.



        In Langham v Connells Point Rovers Soccer Club Inc [2005], the plaintiff tripped
        over a rope strung across the entranceway to a park where soccer was being
        played, the court found that the suspension of a law slung rope the same colour as
        the ground across an entranceway involved the creation of a concealed hazard of
        an unusual kind, and which persons in the position of the appellant would not
        anticipate or expect. There was a foreseeable risk of harm which required the
        respondent club to warn people of the presence of the rope barrier.


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       But compare Murray v Harringay Arena Ltd (1951), an English case, where a six-
       year-old boy was hit in the face by a puck, the court held that the arena in which
       the match had taken place was as safe as could be reasonably expected and the
       injury to the plaintiff was the result of a danger inherent in the sport itself which he
       accepted and against which the organisers could not reasonably have been
       expected to take precautions but this logic cannot be applied to arrive at a
       conclusion that spectators similarly accept a risk of being hit by a hockey stick.



40.    To minimize exposure to liability, organisers of sporting events must take adequate
steps to ensure that the event is well planned and that reasonable measures are in place
to prevent injury and to arrange for treatment of any injury. It should be noted that the
normal duty of care is increased once children become involved.



The position of spectators who pay to enter


41.    If a person can establish entry by contractual right, then the nature of the duty
owed will turn on the express or implied terms of the contract of entry. Where there is no
express term excluding the occupier from liability, there is an implied duty to exhibit
`reasonable care and skill’ but it is not a duty of insurance against any risk of loss.



Children


42.    As noted above at [13], children are assumed to be less capable than adults in
taking care of themselves. Therefore, those who are placed in a position of responsibility
for children, directly or indirectly, must make their safety the foremost concern and carry
a more onerous duty of care.



43.    As a general principle, the responsibility for the safety of young children at
least at a sporting venue must rest primarily with the parents.


Coaches


44.    Coaches should ensure that the child is developing the appropriate degree of
physical fitness that the sport requires; in some sports (especially gymnastics), the coach
must have the knowledge of anatomy and the injuries common to the particular activity.




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Parents and volunteers


46.     Parents and even volunteers can be liable in negligence if they fail to be vigilant
where children are involved in sporting activities.



      Example

      In Macarthur Districts Motor Cycle Sportsmen Inc & Ors v Ardizzone [2004], the
      respondent, a boy aged 12, took part in a motocross race organised by the appellants
      (who were volunteers). The boy fell at a jump and was injured by the following rider.
      The court found that the appellants had breached their duty of care by failing to
      provide sufficient track marshals in appropriate positions to signal other riders. “No
      one could expect a good assessment of risk and a good decision on whether to
      participate in a motocross race from a boy of 12".


Local authorities


47.     Local authorities may owe a duty of care to children where they are aware of
potential situations which could lead to injury and they do nothing.



       Example

       Shellharbour City Council v Rhiannon Rigby& Anor [2006], a 13-year-old girl injured
       when riding down an unfenced starting ramp at a BMX track, the Court of Appeal
       agreed with Dunford J’s finding in the Supreme Court that while it was unnecessary
       to fence off the whole track, the ramp and its proximity to the first hump would have
       constituted a foreseeable risk of injury to inexperienced riders and an even greater
       risk in the case of inexperienced ones such as the plaintiff, who was only 13 at the
       time. To such persons the ramp was an allurement. Fencing it would not have been
       disproportionately expensive and would have prevented the plaintiff from falling at
       such high speed. In failing to fence the start and the ramp, the defendants were in
       breach of their duty of care.




48.     While age is an important factor insofar as assessing whether there will be liability
towards an infant, this has to be balanced against any experience that the infant might
gain from participation and whether it could be said that he or she had sufficient maturity
to sufficiently assess the risks for themselves. The younger the child, the less likely it is
that the child is able to properly assess the risk for themselves.



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(3) Vicarious Liability

Introduction

49.    Vicarious liability is a form of strict liability, which means that the person/club held
responsible for the acts or defaults of another may not have been personally at fault!


50.    Liability arises by reason of the special relationship between the parties and is
stated in terms of liability, not duty. Thus, a club who is an employer can be vicariously
liable for the acts of its players or officials if they are employees, even without any
wrongdoing on the club’s part.


       Example
       In Kennedy v Narooma Rugby League Club, unreported [2001], a Narooma player
       broke the plaintiff’s jaw in a late head high tackle, notwithstanding that the
       Narooma was an amateur club the court found that an employee relationship may
       be a voluntary relationship where someone obeys orders for the benefit of, in this
       case, the club and that although there were no regular payments made to the
       players, there were a number of benefits that they received such as jerseys, petrol
       money to travel to games, a player injury fund, meals after home games and
       player registration fees, that when taken as a whole were enough to form an
       employment relationship.




Playing within the rules

51.    A participant is expected to play according to the rules. It is to be expected that
during the course of play there will be infringements but only up to a point.


52.    An employer who encouraged ‘rough’ play would, in appropriate cases, have to
bear the consequences as a court is more likely than not going to find that the tort was so
closely connected with what was authorized or expected of the player that it would be fair
and just to hold the employer vicariously responsible.




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      Examples


      In Canterbury Bankstown Rugby League Football Club Ltd & Bugden v Rogers, it the
      club was vicariously liable for an assault committed during the course of a professional
      rugby league match. Although the assault was not expressly or impliedly authorised by
      the club, the risk that motivation by the coach could lead to the use of illegitimate
      means of winning was clear. The defendant was authorised to use force to stop the
      plaintiff’s forwards and the possibility that this could lead to the use of illegitimate
      means to achieve this end was also clear.


      In Gravil v Carroll & Anor [2008], the England and Wales Court of Appeal considered
      that the fact that player had other ‘full-time’ employment was irrelevant in holding the
      club vicariously liable for the player’s actions in punching an opponent. He was
      employed to play rugby for the club and was doing so at the time of the incident.
      When he punched the claimant there was a melée of the kind which often occurs
      during rugby matches, notwithstanding that the whistle has gone. The melee was not
      an uncommon part of the game and not independent of it. In such a situation the court
      concluded that there was a very close connection between the first defendant’s
      employment as a second row forward and his punching and injuring the claimant as a
      prop on the other side. This was supported by the terms of the defendant’s contract
      which provided under the Schedule to the contract dealing with the ‘Duties and
      Obligations of the Player’ that the player must not bring the game into disrepute and
      that he must not physically assault an opponent. The punch was thus a breach of an
      express term of the contract. The Schedule also set out the ‘Duties and Responsibilities
      of the Club’ which expressly provided that the club may be vicariously liable for the
      acts of players during the employment, that is, while playing rugby for the club.




Employer not always liable

53.      An employer will not be liable if the act of the employee was “a spontaneous act of
retributive justice’’. That is, if the act of the employee is one of spite or revenge, then the
employer will not, in those circumstances, be vicariously liable.



Coaches and officials

54.      Clubs may also be held vicariously liable for injuries sustained by players during
training if it can be proved that the coach is not fully qualified and/or has subjected the
player to overtraining, implemented an incorrect training routine or has required an
injured player to train thereby aggravating an existing injury. Any argument that the



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player wished to play will not negate the potential breach of duty by the coach and
consequent vicarious liability of the club. However, where an existing injury is aggravated
due to continued play, it may be argued that the player is guilty of contributory negligence
since they agreed to play when they knew or ought to have known that play would
aggravate the injury. A similar argument may well succeed if it can be proved that the
player concealed their injury from officials.



55.     Similarly, a club may be held vicariously liable for injury sustained by a player as a
result of a club official failing to remove an obstacle, such as a sprinkler, from the field of
play.




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(4) Private Nuisance

Limited to use or enjoyment of land



56.    Private nuisance requires proof of interference with the reasonable use and
enjoyment of land in which the plaintiff has an interest and the liability of a defendant only
commences from that point in time when they knew, or are made aware, of the nuisance.



57.    It extends to occupiers who are on premises by right of ownership, lease or
exclusive occupation without title and is an area of law that can often catch the activities
of a club.



Limited range of defendants



58.    The range of defendants are those who have some degree of personal
responsibility or control over the land. This can be the creator of the nuisance, irrespective
of whether they are the occupier or not, or anyone who authorises another to commit it.
An occupier of land will also be held responsible for failing to take reasonable steps to
rectify a dangerous state of affairs on their land.



59.    Liability for nuisance is not strict or absolute liability. An occupier will not be
responsible for a nuisance created without their knowledge, or means of knowledge, and
consent. Nor will an occupier necessarily be liable if they take reasonable steps to bring
the nuisance to an end once they learn of its existence.



Interference must be unreasonable and substantial



60.    In an action based on a claim in private nuisance, only unreasonable substantial
and material interferences with the use or enjoyment of land by the defendant are
actionable




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         Example

         In Challen v The McLeod Country Golf Club [2004] the appellant had claimed, by
         letter from 1994 to the golf course, of golf balls coming on to her property, held on
         appeal that the golf course must have known, or ought to have known, of the
         interference and had not responded reasonably in the circumstances to abate the
         nuisance until after it received a solicitor’s letter in 2001.



         In Miller v Jackson (1977) QB 966 the plaintiff’s house adjoined a cricket ground
         and the local club players regularly hit cricket balls out of the ground and into the
         plaintiff’s property. The Court of Appeal held that the club’s use of the cricket
         ground created an unreasonable interference with the plaintiff’s use of her
         property.



Trivial interferences are not actionable

61.      There must be ‘substantial interference’ for which the defendant is responsible that
is foreseeably likely to cause harm to occupiers of neighbouring land. Factors that have to
be considered in determining whether the interference is substantial or merely trivial
include:

      • duration, even if it is only for a short period, may be substantial;

      • frequency;

      • extent;

      • locality; and

      • time of day.



Reasonableness



62.      In addition to the question of ‘substantial interference’, the reasonableness (or
unreasonableness) of the defendant’s activity must be weighed against the interference
with the plaintiff’s use or enjoyment of their land. An objective test is used and the
following factors will generally be considered:



      • The defendant’s conduct. This includes consideration of the purpose of the
      activity and its benefit to the community. The courts are more readily prepared to



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    make a finding of nuisance in recreational pursuits than those where the defendant’s
    activities provide an economic benefit to the community at large.



      Example

      In Lester-Travers v City of Frankston golf balls hit from the golf course regularly
      entered into the adjoining property. As the defendant was in a position to know
      and should have known and appreciated the nature and extent of the intrusion of
      golf balls and taken all reasonable precautions, an injunction was granted
      restraining the defendant from permitting persons playing golf to hit balls on to the
      plaintiff’s property!



    • The seriousness of the interference with the plaintiff’s use or enjoyment of their
    land. This includes consideration of factors such as duration, degree and type of harm




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Legislation in Western Australia
(1) Civil Liability Act 2002
Part 1D — Good Samaritans


63.    Part 1D prevents a good samaritan from being held liable in respect of any act or
omission done or made in good faith and without recklessness in an emergency or
accident when assisting a person who is apparently injured or at risk of being injured, e.g.
a spectator rushing to help an injured player or participant.


64.    A “good samaritan” is a person who, without expectation of reward, comes to the
assistance of a person who is apparently in need of emergency assistance.


64.    Protection is not available if the ability of the good samaritan to exercise
reasonable care and skill was significantly impaired because of alcohol or a drug
voluntarily consumed (whether or not it was consumed for medication).


Divisions 4 and 6 — Dangerous recreational activities and assumption of risk


65.    “Recreational activity’’ includes a sporting activity or any pursuit or activity
undertaken for the purposes of enjoyment, relaxation or leisure (s 5E). A “dangerous
recreational activity” is a recreational activity that involves a significant risk of physical
harm to a person (s 5E).


66.    No duty of care is owed for harm suffered from obvious risks of dangerous
recreational activities (s 5H), whether or not the person suffering the harm was aware of
the risk (s 5H(2)). An “obvious risk” is a risk which would have been obvious to a
reasonable person in the position of the plaintiff (s 5F) and involves an objective test.


67.    Whether an activity is dangerous or not requires consideration of factors such as
the probability of harm, the gravity of the injury and the characteristics of the plaintiff. It
is worth noting (again) that in relation to the characteristics of the plaintiff, if the plaintiff
is a young child engaged in a dangerous recreational activity, certain risks associated with
that with that activity may not be as obvious as they could be to older participants.


       Example
       In Thomas v Shaw (2009), the vulnerable age group for children was described as
       five years to nine years but in that case (which was not a sporting case but a child
       falling of the top bunk of a bunkbed) the court was prepared to accept that a child
       of 10 could still be considered to fall within the vulnerable age group.



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Division 5 — Contributory negligence


68.    The degree of a defendant's liability for harm caused to a plaintiff may be reduced
if it can be shown that the plaintiff contributed in some way to harm that resulted.


69.    There is a presumption of contributory negligence if the plaintiff was intoxicated at
the time that the injury or harm occurred.


(2) Volunteers (Protection from Liability)

70.    The Volunteer and Food and Other Donors (Protection from Liability) Act 2004
protects a volunteer from liability for any act or omission done in good faith while doing
community work organised by a community organisation which is incorporated under
Associations Incorporation Act 1987. Instead, the community organisation for which the
volunteer works is liable and the injured party cannot sue the volunteer personally unless
one of the exceptions applies.


71.    “Community work” means any work that is organised by a community
organisation (without remuneration paid) and includes work that is done for a sport,
recreation, tourism or amusement (s 3(1)).


72.    A “volunteer” is a person who provides a service in relation to community work on
a voluntary basis (s 4). A volunteer is permitted reimbursement of out-of-pocket expenses
and remuneration that is not more than that permitted by the regulations in doing the
voluntary work (s 4(2)).


73.    “Community organisation” includes an incorporated association, a body
corporate and a government body (s 3(1)). Volunteers who are connected with an
unincorporated association will not be able to take advantage of the Act’s provisions.


74.    Section 6(3) sets out a number of situations where protection from liability does
not apply including:


       •      the volunteer knew or ought reasonably to have known that they were
              acting outside the scope of the activities authorised by the community
              organisation or contrary to instructions; or


       •      the volunteer was significantly impaired by alcohol or drugs when doing the
              work and failed to provide the service in a proper manner.




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(3) Working with Children

75.    The framework for working with children in WA is governed by the Working with
Children (Criminal Record Checking) Act 2004. The key requirements under this
legislation are:


            •   Individuals are required to apply for a "Working with Children" check;
            •   The "Check" is valid for 3 years;
            •   Holders of the Check are entitled to engage in child-related employment and
                volunteering positions


76.    The legislation applies to employees and volunteers involved in coaching or private
tuition services, including sport and recreation clubs, associations or movements (whether
an incorporated association or not). It does not matter whether the organisation has a
significant involvement with children or high level of child membership, a Check for those
involved with children is still required.


77.    The criteria set out in s 12(8)(a)–(f) to which the CEO must have regard to is
considered to constitute the sole list of factors in deciding whether an applicant has
attained the requisite satisfaction (Grindrod (No 2) at paragraph 68 of the judgment) and
includes:


            (a) the bests interests of the children (which is of paramount consideration and
            to which the following criterion must yield in the event of a conflict with this
            criteria: see Grindrod (No 2) at [70])


            (b) when the offence was, or alleged to have been, committed


            (c) the age of the applicant at the time


            (d) the nature of the offence and any relevance it has to child-related work


            (e) any information given by the applicant in, or in relation to, the application


            (f) anything else that the CEO reasonably considers relevant to the decision.




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78.   Some individuals are not required to apply for the Working with Children Check.
These include:


            •    volunteers under 18 years of age;
            •    volunteer canteen staff who are parents of a child in the club or
                 association;
            •    a volunteer coach, umpire, referee or official who is a parent of a child in
                 any team within the club or association;
            •    parents volunteering in a club or certain activities in which their children
                 are also involved; (but it does not apply to parents volunteering on
                 overnight camps);
            •    those who undertake work on no more than 5 days in a calendar year
                 (the “5 day threshold” exemption), for example, a guest coach who
                 attends a coaching clinic for less than five days per year;
            •    board members, unless their usual duties involve contact with children
                 on more than five days per year; and
            •    interstate visitors where the sporting activity does not exceed two
                 weeks.




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