Occupier Liability in Sport – Lessons from Woolnough v Whittlesea City Council

Introduction

The Supreme Court of Victoria’s recent decision in Woolnough v Whittlesea City Council & Anor [2026] VSC 190 is an important development in occupier liability law. The case provides important guidance on how courts will assess the duty of care owed by facility operators and sporting clubs where infrastructure design creates foreseeable risks, even where those risks appear modest when considered in isolation.

The outcome – damages of $15.2 million against the facility operator – serves as a timely reminder that the cost of inadequate infrastructure can far exceed the cost of addressing a known risk at the outset.

Facts

The plaintiff, a 23-year-old male, was attending senior cricket training at the Laurimar Recreation Reserve (Reserve) in Doreen, owned by the Whittlesea City Council (the Council) and used by the Laurimar Cricket Club (the Club) under a facility agreement.

The Reserve featured two ovals and a set of cricket nets positioned adjacent to both. While the Council had installed pedestrian gates at various points around both ovals – including near the pavilion, change rooms, and alongside the Western oval boundary – no gate had been installed between the Eastern oval and the new nets.

In the absence of a direct gate, between 75% and 90% of players wishing to move between the Eastern oval and the nets routinely jumped the boundary fence rather than walk 95 metres to the nearest gate. While traversing the fence during training, the plaintiff fell and suffered catastrophic spinal injuries leaving him permanently incapacitated in a wheelchair.

Judgment

Duty of care

Both the Council and the Club were occupiers of the Reserve under section 14B of the Wrongs Act 1958 (Vic), each owing a duty to take reasonable care to ensure persons on the premises would not be injured by reason of the state of the premises. This concurrent occupancy is common in community sport, and the allocation of liability between facility owners and sporting clubs is a recurring issue.

Club’s liability

Ultimately, Justice Gorton found the Council breached its duty by failing to install a pedestrian gate when the nets were constructed in 2020.

The aggregate risk principle

Central to the Court’s reasoning was the concept of “aggregate risk”. While climbing a boundary fence on a single occasion posed only a low risk of injury, the risk became foreseeable and legally significant where the facility design made it predictable that large numbers of people would repeatedly jump the fence over time.

The Council knew or ought to have known that, with up to 220 players training multiple nights each week, hundreds of fence crossings would occur throughout each season in theabsence of a gate. In those circumstances, the prospect of injury was not far-fetched.

Cost of prevention

After the plaintiff’s fall, the Council installed a gate at the precise location of the accident at a cost of approximately $1,500. While this did not constitute an admission of negligence, it was relevant to establishing that the precaution was readily achievable and carried no meaningful countervailing disadvantage.

Club’s prior request

The Court also found, on the balance of probabilities, that the Club had orally informed the Council that players were jumping the fence and had requested a gate be installed. While the request was not explicitly framed as a safety concern, the Court held that this did not alter the Council’s legal obligation as the relevant facts had been communicated.

Club liability

The plaintiff alleged the Club failed to adequately follow up its gate request with the Council and failed to direct players not to jump the fence. Both claims were rejected.

The Court held the Club had acted reasonably by raising the issue with the Council and was not required to do more, particularly as it lacked authority to install a gate itself. The Court also declined to impose a positive duty on the Club to warn or direct adult players not to jump the fence, noting:

• the plaintiff was a fit, healthy adult voluntarily attending senior cricket training, not in an employment or analogous relationship with the Club;

• the risk of significant injury on any single occasion was low;

• the Club possessed no greater expertise than the players in identifying or assessing the risk; and

• the Club had not encouraged or directed players to cross the fence, and that adult players were free to make their own decisions on whether to traverse the fence.

  
  

Voluntary assumption of risk

The Council contended that the plaintiff had voluntarily assumed the risk of injury by choosing to jump the fence.

The defence of volenti non fit injuria failed, and the Court reaffirmed the well-established principle that knowledge of some risk is insufficient to enliven the defence. The Council was required to establish the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk, impliedly agreed to accept the risk – including the risk of catastrophic injury.

The Court was not satisfied the plaintiff had subjectively appreciated the level of risk, finding he had simply crossed the fence as other players routinely did. It also held the risk of severe injury was not an “obvious risk” under sections 53 and 54 of the Wrongs Act 1958 (Vic).

Contributory negligence

The Court found the plaintiff contributorily negligent, reducing damages by 20%.

It was held that the plaintiff acted negligently in the way he crossed the fence – by running at it with speed and attempting to vault it without slowing down. The Court considered this appreciably and unnecessarily increased the risk of falling, and that a reasonable person would have slowed down and crossed carefully.

Key takeaways

The decision has significant implications for local government bodies, sporting clubs and facility operators.

• Infrastructure design and occupier liability – When a facility operator installs infrastructure that generates a predictable pattern of pedestrian movement, it must consider how users will actually behave – not how they ideally should behave.

• Aggregate risk – Courts will assess the risk generated by infrastructure not by reference to any one individual on any one occasion, but by reference to the cumulative risk across all likely users over time.

• Communication with facility owners – The Club’s exoneration turned in part on the Court’s acceptance that it had orally raised the gate request with the Council. Reliance on oral evidence is inherently uncertain, and sporting clubs and other facility users should ensure that concerns about infrastructure are raised promptly and in writing.

• Volenti remains a high bar – The voluntary assumption of risk defence remains difficult to establish. Courts will require clear evidence that the plaintiff subjectively appreciated the full extent of the risk – including the risk of serious or catastrophic injury – and freely accepted it. The mere fact a person engages in an activity knowing it carries some risk will be insufficient.

Conclusion

Woolnough v Whittlesea City Council confirms that foreseeable patterns of conduct at sporting facilities can create actionable risks requiring preventative steps, even where the individual risk appears modest. The case serves as a reminder that the cost of addressing infrastructure hazards early is often insignificant compared to the potential exposure arising from serious injury claims.

If you have questions about occupier liability, risk management in a sporting law context or the implications of this decision for your organisation, please contact our team at Gibson MacNeill Lawyers.

How can Gibson MacNeill Lawyers help?

Gibson MacNeill Lawyers advises councils, sporting clubs, facility operators and their insurers on the full range of occupier and public liability matters. Our sports law, insurance and litigation teams work together to defend negligence claims, manage exposure and develop practical risk management strategies informed by decisions like Woolnough.

Our team can assist with:

• Defending public and occupier liability claims, including breach of duty, causation, contributory negligence and voluntary assumption of risk arguments.

• Advising on the allocation of duty between facility owners, lessees, sporting clubs and user groups under section 14B of the Wrongs Act 1958 (Vic) and at common law.

• Advising on risk management practices, incident reporting and post-incident remediation that may inform future litigation.

• Liaising with insurers and brokers on coverage, indemnity and subrogation issues arising from occupier and public liability claims.