Archer v Garcia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2018 01404

JAYDEN ARCHER	Plaintiff
v
TROY GARCIA	Defendant

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	27-30 September, 1, 4-7, 21 October, 15-16 December 2021
DATE OF JUDGMENT:	17 February 2022
CASE MAY BE CITED AS:	Archer v Garcia
MEDIUM NEUTRAL CITATION:	[2022] VSC 57

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NEGLIGENCE – Monster truck and freestyle motocross event in country Victoria – Freestyle motocross accident – Down ramp in incorrect position – Defendant event manager and promotor – Performers independent contractors – Adequacy of ramp movement system – Whether defendant required to supervise ramp movement by performers – Whether plaintiff was warned of ramp misplacement by clown – Voluntary assumption of risk – Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 – Wrongs Act 1958 (Vic) ss 14B, 53, 55.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S C Bailey	Arnold Thomas & Becker
For the Defendant	Mr L Howe	Briefed directly pursuant to Victorian Bar Pro Bono Scheme

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Summary of conclusions.................................................................................................................. 2

The trial and witnesses..................................................................................................................... 7

The evidence.................................................................................................................................. 8
The plaintiff.......................................................................................................................... 8
The defendant.................................................................................................................... 10
The event and the accident............................................................................................... 11

Disputed events........................................................................................................................... 16
New evidence.............................................................................................................................. 17
The rule in Jones v Dunkel........................................................................................................... 19
Consideration of third disputed event..................................................................................... 23
Conclusions on credit................................................................................................................. 36
Consideration of second disputed event................................................................................. 39
Consideration of first disputed event...................................................................................... 41
Conclusions on evidence............................................................................................................ 52

Submissions...................................................................................................................................... 52

Plaintiff’s submissions................................................................................................................ 52
Defendant’s submissions........................................................................................................... 55

Analysis.............................................................................................................................................. 58

Negligence.................................................................................................................................... 58
Breach of contract........................................................................................................................ 71
Occupier’s liability...................................................................................................................... 71
Voluntary assumption of risk.................................................................................................... 73

Conclusion......................................................................................................................................... 74

HER HONOUR:

Introduction

On 28 November 2015, the plaintiff, Jayden Archer, was injured while performing freestyle motocross (‘FMX’) at a monster truck and FMX ‘spectacular’ event at the Korumburra Showgrounds in Korumburra, Victoria (‘the event’). The plaintiff’s injuries occurred as the result of ‘overshooting’ the down ramp while completing an FMX jump and landing directly on the ground causing him to be thrown off his motorbike. When the plaintiff commenced the jump that resulted in his injuries, he believed that the down ramp was positioned at a distance of 75 feet from the up ramp. The down ramp was, in fact, positioned at a shorter distance from the up ramp.

The defendant, Troy Garcia, was the promoter and manager of the event, and performed as a monster truck driver on the night. He was also recorded in certain documentation as the ‘operations manager’, ‘site manager’, ‘FMX supervisor’ and ‘FMX team manager’.

In summary, the plaintiff pleads that:

(a) the defendant, as the promoter, manager and/or FMX supervisor and team manager at the event, breached his duty of care to the plaintiff;

(b) the defendant, as the occupier of the Korumburra Showgrounds, breached his duty of care to the plaintiff under Part IIA of the Wrongs Act 1958 (Vic) (‘the Act’); and

(c) the defendant, as the promoter and manager of the event, breached his verbal contract with the plaintiff in relation to the plaintiff’s FMX performance at the event.

In summary, the plaintiff alleges that the defendant failed to:

(a) provide a safe event space;

(b) take reasonable care concerning the operation, arrangement and management of the event so as to ensure the safety of performers, including the plaintiff;

(c) inform the plaintiff of risks arising from the movement of the down ramp during the event;

(d) ensure that the performance space for each performance was in the same state as it had been during the rehearsal earlier in the day; and

(e) pursuant to s 14B of the Act, take such care as in all the circumstances of the case is reasonable to see that any person on the premises (being the Korumburra Showgrounds) will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

The defendant does not dispute that, at the relevant time, he was the promoter and manager of the event and, as such, owed the plaintiff a duty of care. However, the defendant denies that he was the site manager, FMX supervisor and FMX team manager. The defendant also denies breaching the duty of care he admits to owing.

The defendant does not dispute that he entered a contract with the plaintiff in relation to the plaintiff’s FMX performance at the event, but disputes the plaintiff’s asserted contents of that contract and denies breaching that contract.

Further, the defendant pleads:

(a) contributory negligence by the plaintiff;

(b) that the risk of injury to the plaintiff was an ‘obvious risk’ within s 53 of the Act, and the risk was voluntarily assumed by the plaintiff; and

(c) that the risk of injury to the plaintiff was an ‘inherent risk’ pursuant to s 55 of the Act, and the plaintiff was aware of that risk.

Summary of conclusions

The defendant was the promotor and manager of the event, and occupier of the Korumburra Showgrounds at the relevant time. The defendant owed the plaintiff a duty of care to perform these roles with due care and skill. This included a duty to take reasonable steps to minimise the risk of injury to performers such as the plaintiff.

The defendant was described in various documentation as the ‘site manager’, ‘FMX supervisor’, ‘operations manager’ and ‘FMX team manager’, in addition to his roles as promoter and manager of the event. While these labels are instructive, the scope of defendant’s duty is ultimately determined by the role or roles he did in substance perform, or was legally obliged to perform, in consideration of the nature of his legal relationship with the plaintiff. For the reasons outlined below, I consider that these labels do not extend the scope of the defendant’s duties beyond what he already owed as promoter and manager of the event, and as the occupier of the Korumburra Showgrounds.

There is no evidence that the defendant’s relevant obligations under his verbal contract with the plaintiff were any more onerous than the duty he owed at law as promotor and manager of the event.

It was not in dispute that the plaintiff’s accident resulted from his misapprehension about the placement of the down ramp. Thus, the relevant aspect of the defendant’s duty of care for the purposes of this case is as it relates to ramp placement and movement. Any deficiencies in the defendant’s organisation of the event more broadly have limited or no relevance to this issue.

The plaintiff was an independent contractor, not the defendant’s employee. The plaintiff was a professional FMX performer with significant renown and experience, and was performing at the event alongside a veteran of the sport, Mr Matthew Schubring. The event was a relatively small scale show in a country town without a large budget or support team. In these circumstances, the defendant was not required to assume sole responsibility for the placement and movement of the ramps, to prescribe any particular ramp movement system, or to guarantee that the ramps were at any particular distance immediately before the plaintiff’s performances. Rather, the defendant’s relevant duty was to:

(a) inform the plaintiff that the ramps would be used by other performers, and that this would require the down ramp to be moved during the event;

(b) provide the plaintiff with adequate time to familiarise himself with the proposed ramp movement system, make changes to that system if required, and practise the system prior to the event; and

(c) ensure that, during the course of the event, down ramp movement was performed by a person or persons competent to do so.

The defendant was not required to exercise an additional supervisory power over the ramp movement system during the running of the event, provided he discharged his duty above.

I consider that, on the balance of probabilities:

(a) the plaintiff was aware that the down ramp would be moved during the course of the event;

(b) the plaintiff attended a lunchtime meeting organised by the defendant on the day of the event where the ramps were set up and the proposed ramp movement system was discussed and implemented, and the plaintiff was actively involved in that process;

(c) at the lunchtime meeting, paint markings were made on the grass to identify the position of the down ramp at a distance of 55 feet from the up ramp and a distance of 75 feet from the up ramp. Four paint markings were made at the location of: the front right wheel of the down ramp truck at 55 feet; the back right wheel at 55 feet; the front right wheel at 75 feet; and the back right wheel at 75 feet;

(d) immediately after the lunchtime meeting, the FMX performers practised their jumps at a distance of 75 feet and the quad bike rider and razor rider practised their jumps at a distance of 55 feet. The down ramp was moved during this rehearsal. The FMX performers initially used a different up ramp to the other performers, but subsequently decided to use the same up ramp;

(e) after the lunchtime meeting and rehearsal, the plaintiff considered that the ramp movement system was adequate, and the defendant satisfied himself of that fact;

(f) during the event, the FMX riders successfully performed their first set of jumps at a distance of 75 feet;

(g) after this first set of jumps, the defendant moved the down ramp to a distance of 55 feet from the up ramp by driving the down ramp truck while being directed by Mr Benjamin Bowen, a performer. Mr Bowen was a ‘stunt clown’ at the event, whose performing included completing an FMX jump at a distance of 55 feet with the quad bike and razor riders. Mr Bowen was not present at the lunchtime meeting or rehearsal, but arrived later during the afternoon to familiarise himself with the ramp set up;

(h) the quad bike rider, razor rider and Mr Bowen subsequently performed their jumps at a distance of 55 feet;

(i) shortly before the jump that resulted in the plaintiff’s injuries, Mr Schubring reversed the down ramp truck from its position at 55 feet from the up ramp (so as to increase the distance between the ramps), and was directed during that task by the plaintiff, who was outside the vehicle;

(j) Mr Schubring and/or the plaintiff misinterpreted the paint markings on the ground so that the down ramp truck was stopped at a distance more than 55 feet, but less than 75 feet, from the up ramp. It is highly likely that they stopped the truck when its front wheel drew level with the paint marking for the rear wheel at the 55 feet distance (rather than continuing to reverse the truck until its front wheel drew level with the front wheel marking at the 75 feet distance); and

(k) as a result of this mistake, the distance between the up ramp and down ramp was more than 55 feet, but less than 75 feet, at the time the plaintiff completed the jump that resulted in his injuries.

Put simply, Mr Schubring and the plaintiff made an error when moving the down ramp into what they thought was the 75 feet position.

On the basis of these findings, I consider that the defendant discharged the duty of care owed to the plaintiff particularised in paragraph 12 above. Specifically:

(a) the plaintiff was made aware that the ramps would be used by other performers, and that this would require the down ramp to be moved during the event;

(b) by requiring the plaintiff to arrive at the Korumburra Showgrounds at lunchtime to set up and practise, the defendant provided the plaintiff with adequate time to familiarise himself with the proposed ramp movement system, make changes to that system if required, and practise the system prior to the event; and

(c) the last persons to move the down ramp before the plaintiff’s accident were Mr Schubring and the plaintiff, who were competent to perform that function.

I make the following findings in case my conclusions in relation to duty and breach are incorrect:

(a) I am satisfied that the plaintiff was intercepted by Mr Bowen immediately prior to the jump that resulted in his injuries, and that Mr Bowen warned the plaintiff that the ramps were placed at a distance that was too short for his performance.

(b) I am satisfied that the plaintiff responded with words to the effect of ‘Schuey [Mr Schubring] measured it’, and shortly after proceeded to perform the jump without measuring the distance between the ramps or checking the paint markings.

As a result of these findings, I consider that, even if my conclusion in relation to duty and breach is incorrect, the risk of injury as a result of ramp misplacement for any reason (including the defendant’s negligence) was voluntarily assumed by the plaintiff when he proceeded with his jump despite being warned of the ramp misplacement by Mr Bowen.

The trial and witnesses

The defendant was for a large part unrepresented prior to trial.[1] I originally made a referral to the Victorian Bar Pro Bono Scheme for assistance with interlocutory steps. Mr Tom Storey and Mr Lachlan Howe of counsel each provided the defendant with some assistance in this regard. The Court thanks Mr Storey and Mr Howe for accepting the referral. The trial commenced before me on 16 and 17 November 2020, during which time the plaintiff commenced giving evidence. That trial was vacated in order to give the plaintiff time to file and serve a proposed amended statement of claim. The trial was relisted for 27 September 2021, to commence anew. I did not have regard to the plaintiff’s earlier testimony.
[1]Leave was granted to his former solicitors to file a Notice of Ceasing to Act by Judicial Registrar Clayton (as she then was) on 1 May 2020.

On 27 September 2021, I made a further order referring the matter to the Victorian Bar Pro Bono Scheme seeking pro bono representation for the defendant for evidence-in-chief, cross-examination of the plaintiff and the plaintiff’s key witnesses, and opening and closing submissions at the trial. Mr Howe accepted the referral and represented the defendant for the entire duration of the trial without the assistance of an instructing solicitor. The Court thanks and acknowledges Mr Howe’s contribution to the trial and the assistance provided to the Court and the conduct of the trial generally.

The trial commenced on 27 September 2021 and initially ran for nine sitting days. The following witnesses gave viva voce evidence:

(a) for the plaintiff:

(i) Mr Jayden Archer, the plaintiff;

(ii) Ms Bethany King, the plaintiff’s partner;

(iii) Mr Brenton Williams, a spectator at the event;

(iv) Mr Cameron Sinclair, a professional FMX rider who was not present at the event; and

(v) Ms Tracey Archer, the plaintiff’s mother; and

(b) for the defendant:

(i) Mr Troy Garcia, the defendant;

(ii) Mr Benjamin Bowen, the ‘stunt clown’ who performed at the event;

(iii) Mr Aaron Brunner, the DJ at the event; and

(iv) Mr Simon O’Neill, a transport operator and company director, also described as the ‘sponsor’ of the event.

The evidence

The following evidence was, except where otherwise specified, uncontested.

The plaintiff

The plaintiff is 26 years old, and was 19 years old at the time of the event in 2015. He started riding motorbikes when he was four years old and racing motorbikes when he was six years old.

The plaintiff described ‘motocross racing’ as motorised dirt bike racing on a circuit with jumps. It does not involve stunts and tricks. On the other hand, ‘freestyle motocross’ or ‘FMX’, is a performance sport where riders perform stunts and tricks such as backflips. FMX is performed in competitions throughout the world, and in non-competitive shows and demonstrations. The plaintiff said that an FMX performer is ‘basically … hired as an entertainer’.[2]
[2]Transcript of Proceedings, Jayden Archer v Troy Garcia (Supreme Court of Victoria, Incerti J, 27-30 September, 1, 4- 7, 21 October, 15-16 December 2021) (‘T’) 31.25-26.

The plaintiff obtained an unofficial world record in FMX at the age of 15 when he became the youngest person to ‘land a backflip over 75 feet’.[3]
[3]T32.01 (Mr Archer).

The plaintiff commenced being paid to perform FMX when he was 16 years old. He left school in year 10 to pursue a full time career as an FMX performer. In between FMX shows, competitions and demonstrations, he engaged in paid employment as a suspension and motorbike mechanic.

Prior to the event, the plaintiff had performed at between 300 and 400 FMX shows both domestically and internationally.

At the time of the event, the plaintiff was working for the Freestyle Kings Entertainment Team (‘Freestyle Kings’) and, on the weekend before the event, had been performing shows in Brisbane. The plaintiff had just entered a fulltime contract with the Freestyle Kings to perform in Asia, commencing in 2016. This was his first fulltime FMX contract.

The plaintiff received a call from the defendant in the days before the event, asking if he could perform in place of another performer who had become unavailable. They agreed that the plaintiff would be paid $1,500 to perform. The plaintiff had not worked with the defendant before. He was informed that Mr Schubring would also be performing as an FMX performer at the event. The plaintiff had not worked with Mr Schubring before, but knew of him and said that Mr Schubring was well known in the sport.

Mr Schubring was 34 years old at the time of the event, which was to be his last FMX performance.[4]
[4]T538.29 (Mr Garcia).

Since the 2015 event, the plaintiff has progressed to performing a double back-flip over 75 feet, and said that there are fewer than 15 people in the world who can land that trick.[5]
[5]T250.25-26.

The defendant

The defendant is 50 years old and currently resides in Queensland. He is self-employed in the motorsport industry. He described himself as an organiser of performances for ‘speedway’ and other similar events.[6] He also performs at those events as a monster truck driver. He has been involved in organising motorsport events since the early 1990s. The defendant commenced driving monster trucks in 1995.
[6]T396.08-19.

The scope of the defendant’s role varies between events, depending on specific requirements. At the time of the event in 2015, he was generally involved in 10 to 15 ‘bigger’ events and 20 to 30 ‘smaller’ events per year.[7] He described the event at the Korumburra Showgrounds in 2015 as a ‘bigger’ event. He had been involved in hundreds of shows prior to that event.[8]
[7]T397.23-26 (Mr Garcia).
[8]T406.16 (Mr Garcia).

The defendant said that he was approached by Mr Matt Cosgriff, a local, and Mr Simon O’Neill, to stage a motor sports novelty event at Korumburra. The defendant was responsible for organising all of the components of the event, and promoting and managing the event. Relevantly, this was the first time the defendant had sole responsibility for promoting and managing an event himself, as opposed to performing one or more ancillary roles at an event.

The defendant was required to obtain from the local council an occupancy permit for a ‘place of public entertainment’ or ‘POPE’, which required submitting an event management plan, evidence of public liability insurance, and a risk assessment. The defendant said that he assigned responsibility for organising the paperwork to Ms Jane Simmons, a person he had previously worked with. Ms Simmons was not the defendant’s employee. He said that he did not personally hold the required public liability insurance for the event, but that this was provided by companies associated with Mr Clive Featherby, who owned the monster trucks used at the event and supplied the ramps used by the FMX riders, amongst other performers.

The defendant explained that all of the performers were engaged as independent contractors, and that he expected them to have their own risks assessments and safe operations procedures. Accordingly, he did not provide the event management plan and risk assessment prepared by Ms Simmons to the performers. He said that none of the contracts with the performers were formalised in writing, but took the form of a ‘handshake agreement’.[9]
[9]T423.19.

The defendant arrived in Korumburra approximately two weeks before the event to promote the event. Ms Simmons prepared a promotional flyer, which was distributed in Korumburra by the defendant.

In addition to his role as promoter and manager of the event, the defendant performed in the show as a monster truck driver, driving a vehicle called ‘Little Miss Thunda’.[10]
[10]T524.07.

The event and the accident

The event included monster trucks, FMX performances, a quad bike and ‘razor’[11] performance, a ‘rollover truck’[12] driven by ‘Psycho Sam’,[13] performances by the ‘stunt clown’ Mr Bowen, a crane that lifts a car into the air before dropping it,[14] a ‘drag tractor’,[15] and fireworks to conclude the event. Music was provided by a DJ, Mr Aaron Brunner. There were also food stalls at the event.
[11]The defendant described the ‘razor’ as ‘a sporty golf buggy that’s got bigger suspension and a bit of a roll cage’: T405.28-29.
[12]The defendant described the rollover truck as ‘a shortened down truck that’s got … a circular bar work over it and you hit a speed and you put your foot on the brakes and it makes it flip over on to the front wheels and it rolls upside down and it’s supposed to bounce back on to its wheels’: T429.10-15. When shown footage of the truck failing to bounce back at the event, the defendant said: ‘… it does come back on to its wheels but it couldn’t do it there because the ground was just so soft, there was so much give in it that it wouldn’t let the spring mechanism work like it should, so it had to be helped back every time. The kids don’t mind that but it’s a bit of effort for us to push it back over every time’: T501.02-08.
[13]T500.12 (Mr Garcia).
[14]T429.29-30 (Mr Garcia).
[15]T523.06 (Mr Garcia).

The performances all took place on the football oval at the Korumburra Showgrounds. The ramps for the quad bike, razor and FMX motorbikes were located in the middle of the oval, described by the defendant as the ‘infield’.[16] The monster trucks performed towards the periphery of the oval. Approximately one-quarter to one-third of the space around the outside of the oval was set aside for the monster trucks, motorbikes and other vehicles when they were not performing. This area was described as the ‘pit area’.[17] Adjacent to the pit area was a road entrance cordoned off for performers and event personnel only. The remaining area around the outside of the oval was occupied by the crowd.
[16]See e.g. T426.06.
[17]See exhibits P3, P14, P21, P22, D7, D8, D9 which are site maps marked by various witnesses with landmarks, including location of the pit area.

The vehicles entered and exited the oval via a double gate located at the pit area.

The ramps used by the plaintiff and a number of other performers were comprised of an up ramp and a down ramp. The ramps are mobile pieces of equipment:

(a) the up ramp is a ‘trailer hitch’[18] ramp that has a tow ball for towing. It is unhitched at the performance venue and folds out into its full length; and

(b) the down ramp is permanently fixed or ‘fabricated’[19] to a truck, which is driven to the performance venue. The down ramp is moved into the correct position by driving the truck. It is fitted with hydraulics for the purposes of folding and unfolding the ramp. There is a short flat section at the top of the down ramp directly above the driver’s cabin. The angle that the flat section makes with the diagonal part of the down ramp is referred to as the ‘knuckle’.[20]

[18]T37.30 (Mr Archer).

[19]T37.20-21 (Mr Archer).

[20]T35.20-21 (Mr Archer).

The horizontal distance between the ramps is measured from a vertical line that includes the tip of the up ramp, to a vertical line that intersects with a position on the surface of the down ramp that is approximately three feet down from the knuckle. That position on the down ramp (three feet down from the knuckle) is the optimal landing position, referred to as the ‘sweet spot’.[21]
[21]T35.23-24 (Mr Archer).

During the initial nine days of trial, none of the witnesses suggested that there was anything other than one up ramp and one down ramp at the event. However, footage played to the Court after the defendant was granted leave to reopen his case (discussed further below)[22] indicates that, next to the trailer hitch ramp in the infield was another up ramp. That ramp had the same take-off length and radius (curvature) as the trailer hitch ramp, but was narrower. The plaintiff said that both up ramps were used during practice, but that only the trailer hitch ramp was used on the night. Except where otherwise specified, references to the ‘up ramp’ in these reasons are to the trailer hitch ramp.
[22]Exhibit P23; see discussion at [66]-[73].

The defendant arrived at the Korumburra Showgrounds at approximately 8am on the day of the event. The plaintiff arrived during the late morning. He introduced himself to the defendant and completed a practice session using the ramps. The extent of the plaintiff’s involvement in setting up the ramps, the information given to the plaintiff by the defendant, and the number of other performers present at the time, are the subject of dispute.

At some stage during the day, paint markings were made on the grass to identify the location of the down ramp truck when parked at a distance of 55 feet from the up ramp, and a distance of 75 feet from the up ramp. The plaintiff denies being involved in making, or being aware of, these paint markings. According to the defendant and Mr Bowen, four paint marks were made at the location of: the front right wheel of the down ramp truck at 55 feet; the back right wheel at 55 feet; the front right wheel at 75 feet; and the back right wheel at 75 feet.

After the lunchtime session, the defendant attended to his other duties including completing a sound check, checking that the fireworks operator had arrived, providing the operator with instructions, attending to the monster truck that he was going to drive during the event, and other general duties.

It is unclear precisely how the plaintiff occupied the time between the practice session and the commencement of the show at 6pm. However, he did say that he discussed the FMX performance sets with Mr Schubring and kept himself busy by checking over his motorbike, eating, hydrating and mingling with the crowd.

At approximately 3pm, a pre-event briefing was conducted with the performers and various other persons involved in the event, such as the DJ, Mr Brunner, and the sponsor, Mr O’Neill. Approximately 15-20 persons were present at that briefing. The running order of the event was discussed and a run sheet was distributed. The plaintiff does not recall being present at that briefing and ‘certainly [doesn’t] remember seeing a running sheet at all on the day.’[23]
[23]T184.05-06.

The event commenced at approximately 6pm with a ‘grand parade’,[24] which involved all of the vehicles performing in the show completing a couple of slow laps of the oval. Footage shown to the Court[25] depicts the plaintiff riding in the parade together with other vehicles, including monster trucks, a quad bike and the razor.
[24]T464.15-18 (Mr Garcia).
[25]Exhibit P23.

The monster trucks then completed their first performance, followed by the two FMX performers, Mr Schubring and the plaintiff. The first set of jumps by the FMX performers occurred at a distance of 75 feet and proceeded without incident. The plaintiff and Mr Schubring performed approximately 10 to 12 jumps each, which lasted 15 to 18 minutes.[26]
[26]T62.17-18 (Mr Archer).

What the plaintiff did between his first and second performance sets, and whether he had any awareness of the other performances during that time, is the subject of dispute.

After the first set of FMX jumps, the defendant moved the down ramp to a distance of 55 feet from the up ramp by driving the down ramp truck, and was directed by Mr Bowen when doing this. The quad bike rider, razor rider and Mr Bowen subsequently completed jumps at the 55 feet distance. The defendant observed their performance from the cabin of his monster truck in the pit area.

The quad bike rider, razor rider and Mr Bowen left the oval after their performance. The plaintiff and Mr Schubring then entered the oval to complete their second set of FMX jumps.

Whether, and by whom, the down ramp was moved at this time, is the subject of dispute. Whether the plaintiff was intercepted before his first jump and warned that the down ramp was not located at 75 feet from the up ramp, is also the subject of dispute.

When the plaintiff took the first jump of the second set, he overshot the down ramp, landed directly on the ground, and was thrown off the back of his motorbike. The plaintiff suffered significant physical injuries as a result of the accident, including a fractured cervical spine, crushed larynx and thyroid contusion when his neck collided with the handlebars of his motorbike upon landing. Both of his ankles were injured when they struck the steel foot pegs of his motorbike.

Immediately after the accident, the defendant exited his monster truck and entered the infield to attend to the plaintiff. Mr Schubring and Mr Bowen also attended, together with St John’s Ambulance staff. The plaintiff was upset and agitated. The plaintiff’s comments to various persons at that time are disputed, but nothing material turns on their contents.

The defendant’s evidence is that he then examined the down ramp to determine why it was in the incorrect position. According to the defendant:

[I]t was evident that the truck had moved from the front wheel mark to the back wheel mark, instead of going front wheel mark past the back wheel mark, then to the next front wheel mark. So the truck effectively had only moved half of the way back from 55 [feet] to 75 [feet]...[27]

[27]T486.27-487.01.

The plaintiff left the oval with his motorbike and loaded it onto his truck. Somewhat incredibly, the plaintiff then completed the one hour drive to his house in Botanic Ridge. His girlfriend at the time then drove him to the Frankston Hospital, where he was admitted overnight and transferred to the Alfred Hospital the following morning.

The event recommenced approximately 15 minutes after the plaintiff left the field. It concluded with Mr Schubring completing a special jump over a milk tanker parked on the infield, and a fireworks display.

The plaintiff was required to wear a neck brace for several months after the accident, and was unable to return to FMX performing until after that time. He suffers ongoing neck pain and stiffness, and says that his career has been irreparably damaged as a result of his time out of the sport. He says that he has been required to develop unorthodox performance techniques to accommodate his ongoing neck stiffness, which has reduced the rate at which he can learn new tricks. He also developed, and continues to suffer from, mental health problems following the accident.

Disputed events

The defendant closed his case after Mr O’Neill’s evidence, and I adjourned the trial to give counsel an opportunity to prepare written submissions. The viva voce evidence given prior to the adjournment revealed a stark disagreement between the parties about the occurrence of certain key events. The key disputed events were:

(a) whether a ramp movement system was discussed and practised at a lunchtime meeting attended by the plaintiff and, if so, whether the plaintiff was actively involved in that process or otherwise made aware that the down ramp would be moved during the event;

(b) whether the plaintiff directed movement of the down ramp shortly before the jump that resulted in his injuries, or was otherwise involved in its movement at that time; and

(c) whether, on his approach to the up ramp before the accident, the plaintiff was intercepted and stopped by Mr Bowen, who warned him that the distance between the ramps was too short for his performance.

The defendant asserted, and the plaintiff categorically denied, each disputed event.

For the reasons set out below, I have concluded that each of the disputed events occurred in substantially the manner asserted by the defendant. However, it is important to emphasise that it was not essential for the defendant to establish these events in order to successfully defend this case. The plaintiff always had the burden of positively establishing a set of facts to support his underlying claim. While the defendant’s establishment of the disputed events puts the result beyond doubt, for the sake of completeness, I consider that the plaintiff’s primary case did not rise to the level of making out his claim for relief due to the inherent implausibility of much of his evidence.

New evidence

On the day the parties returned for submissions, 21 October 2021, the defendant sought leave to reopen his case for the purpose of adducing further evidence which had only recently become available. The defendant gave evidence that footage put to Mr O’Neill during cross-examination had prompted his memory of a cameraman, Mr Michael Robinson, being engaged to film the event, and caused him to consider whether that footage had survived. The defendant said that he immediately made enquiries of Mr O’Neill and Mr Brunner, and that Mr O’Neill put him in touch with Mr Robinson.

According to the defendant, Mr Robinson filmed the event on a Video Home System (‘VHS’) camera, and had subsequently saved a copy of the footage on a hard drive. The defendant requested a copy of the whole or any part of the footage captured at the event. He also asked for ‘key components’[28] of the footage, namely footage of:
[28]T887.30-888.04 (Mr Garcia).

(a) any pink paint marks on the ground (which might serve as evidence of a ramp movement system);

(b) anybody moving the down ramp;

(c) any interviews with the FMX riders; and/or

(d) the plaintiff being intercepted by Mr Bowen.[29]

[29]In a later affidavit sworn on 9 December 2021 and provided to the Court on 16 December 2021, the defendant provided further details of his attempts to reach Mr Robinson (referred to in his affidavit, incorrectly, as Mr Robson) in relation to the footage of the event. At [2] he deposes that he asked for Mr Robinson to look out for: (a) any interaction between him and motorbike riders; (b) any paint marks on the ground near the ramp; (c) any ramp movement; and (d) any conversation between ‘Benny the Clown’ and a motorbike rider prior to the crash.

The first footage the defendant received from Mr Robinson was in the form of videos and still shots created by Mr Robinson by holding his mobile phone up to a TV or computer monitor whilst playing some footage of the event, sent to the defendant via Facebook Messenger.[30] They were blurry and the defendant arranged for the quality of the footage to be enhanced at a specialist video store.
[30]In the later affidavit sworn on 9 December 2021, the defendant deposes that he received three video files on or around 10 October 2021 (at [10]), and a further video on 12 October 2021. Exhibited to the further affidavit of Louisa Atanasovski sworn on 9 December 2021 is a screenshot of their Facebook Messenger correspondence dated 10 October 2021.

The defendant also stated that he had received two discs[31] from Mr Robinson by express post.[32] One disc included what the defendant described as relevant content, and the other was blank. The defendant attempted to recover any data from the blank disc at a specialist video store, but was unable to access any material on that disc.
[31]The defendant referred to the discs as ‘CDs’ in his evidence on 21 October 2021, but in his affidavit sworn on 9 December 2021 and in submissions made by both counsel, the discs are referred to as ‘DVDs’. For consistency, I will refer to the discs.
[32]In his later affidavit sworn on 9 December 2021, the defendant deposes that he received these discs on or around 18 October 2021.

On 21 October 2021, I allowed the defendant’s application to reopen his case.[33]
[33]T914-918.

The plaintiff, the defendant and Mr Bowen were recalled. Counsel for the plaintiff tendered a DVD which the parties agreed contained the 1 hour and 3 minute-long footage which the defendant received from Mr Robinson on a disc (‘the DVD footage’).[34] The full video was not played in open Court, but I have viewed it in chambers. Both counsel played each witness segments of the footage, and took them to particular points in time. The plaintiff also took the witnesses to PDF screenshots of the DVD footage at various points.[35]
[34]One part of exhibit P23.
[35]Exhibit P24.

The DVD footage is not one continuous shot. It is unclear whether, as the defendant suggested, Mr Robinson stopped and started the recording at various times during the event,[36] and/or whether he edited the footage after the event. I am satisfied that the DVD footage is sequential, depicting the event from sometime during the afternoon after the gates opened to the public, until shortly after the first FMX performance.
[36]T1050.23-T1051.02.

It was accepted by both parties that the defendant did not have possession of footage of the remainder of the event taken by Mr Robinson. However, the plaintiff tendered a further video of 3 minutes and 44 seconds’ duration which it was agreed was a digitally enhanced version of a video sent to the defendant by Mr Robinson over Facebook Messenger titled ‘extracted relevant footage’.[37] This extracted footage appears to be a collation of footage of the event after the conclusion of the DVD footage; however, it is not clear how it was collated. I am satisfied on the balance of probabilities that it is sequential.
[37]One part of exhibit P23.

The rule in Jones v Dunkel

Before outlining my findings on the disputed events by reference to the viva voce and video evidence, it is appropriate to make some comments on the law regarding the unexplained failure to call a witness given that neither party called Mr Schubring. Mr Schubring could reasonably be expected to have a close knowledge of the disputed events given his central involvement in the show and the disputed events.

The unexplained failure of a party to call a witness may, in appropriate circumstances, allow the trier of fact to infer that his or her evidence would not have assisted that party’s case: Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’). The failure may also allow a trier of fact to draw an adverse inference with greater confidence. As noted by Heydon J in Australian Securities and Investments Commission v Hellicar:

[T]wo consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party.[38]

[38](2012) 247 CLR 345, 432 [232], citations omitted.

However, for an adverse inference to be drawn with greater confidence, there must be a basis for that inference in the available evidence. As noted by the Court of Appeal in Chong v CC Containers Pty Ltd:

The rule does not enable the absence of a witness to make up any deficiency of evidence. It will not support an adverse inference unless the evidence otherwise provides a basis on which that unfavourable inference can be drawn. But where evidence has been left uncontradicted, any inference favourable to a party for which there was ground in the evidence might be more confidently drawn when a person, presumably able to put the true complexion on the facts relied on as the ground for the inference, has not been called as a witness and the evidence provides no sufficient explanation of his or her absence. The reasoning involves the treatment of the failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default (emphasis added).[39]

[39](2015) 49 VR 402, 464 [212], citations omitted.

In Payne v Parker, Glass JA listed three threshold requirements to engage the rule in Jones v Dunkel:[40]
[40][1976] 1 NSWLR 191, 201 (Glass JA, in dissent as to the outcome).

(a) the missing witness would be expected to be called by one party rather than the other;

(b) the missing witness’ evidence would elucidate a particular matter; and

(c) the missing witness’ absence is unexplained.

In this case, the second and third requirements are clearly satisfied:

(a) it was not in dispute that Mr Schubring was an FMX performer at the event alongside the plaintiff. It is also clear from the evidence that, if the disputed events did occur, Mr Schubring would have a close knowledge of most, if not all, of those events and therefore be in a very good position to put the true complexion on the relevant facts; and

(b) Mr Schubring was available to testify and neither party offered an explanation as to why he was not called.

In relation to the first requirement, counsel for the defendant submitted that Mr Schubring should be regarded as in the plaintiff’s camp, so as to make it unrealistic for the defendant to call him. Here, the defendant relied on the fact that the plaintiff opened his case on the basis that Mr Schubring would give evidence on his behalf. I note for completeness that, when opening his case, the defendant also advised the Court (in open court) that he intended to call Mr Schubring,[41] and both counsel confirmed that they had each conferred with Mr Schubring.[42] Ultimately Mr Schubring was not called.
[41]T393.24–25 (Mr Howe).
[42]T874.29-875.08.

In my view, it is not obvious that Mr Schubring would be expected to be called by one party rather than the other. The defendant’s decision to posit a materially different set of facts to the plaintiff, and Mr Schubring’s central role in those posited facts, means that Mr Schubring might reasonably be expected to be of equal assistance to the defendant. There was also no evidence that Mr Schubring’s relationship with either party is anything other than professional. This is therefore an unusual case where the missing witness could reasonably be expected to be called by both of the parties based on the version of events each posits as the truth.

Here I note Glass JA’s observation that ‘[i]f the witness is equally available to both parties, for example a police officer, the condition [ie, the first requirement set out above], generally speaking, stands unsatisfied’.[43] However, Glass JA did acknowledge the following contrary opinion expressed by Little J sitting in the Full Court of this Court:

[I]t would, in my opinion, be erroneous to lay down any general rule that in cases where it could be fairly said the witness was equally available to both parties, the inference under discussion cannot be drawn against a particular party. Circumstances attending cases are infinite in their variety, and the question must depend upon the facts and circumstances of a particular case.[44]

[43]Payne v Parker [1976] 1 NSWLR 191, 202 (Glass JA, in dissent as to the outcome).

[44]Earle v Castlemaine District Community Hospital [1974] VR 722, 728.

In AMP Services Ltd v Manning, Finkelstein J noted the differing judicial opinions on this point, and concluded that Little J’s view is the correct view.[45]
[45][2006] FCA 256, [49].

The author of Cross on Evidence also notes the exposition of a ‘more liberal’ test than Glass JA’s test, being that the party fails to call evidence ‘which that party was plainly in a position to have given or called’.[46]
[46]John Dyson Heydon, Cross on Evidence (LexisNexis, 12^th ed, 2020) [1215] citing Ho v Powell (2001) 51 NSWLR 572, 576 [16] and Cook’s Construction Pty Ltd v Brown (2004) 49 ACSR 62, 67-9 [33], [41]-[42].

Relevantly, the recent comments by the Court of Appeal in the above extract from Chong v CC Containers Pty Ltd make clear that the rule in Jones v Dunkel must be applied against the backdrop of the existing evidence led in the case. As detailed below, large parts of defendant’s version of events were corroborated by independent witnesses and, ultimately, the video footage that was played to the Court when the defendant reopened his case. This, in turn, cast serious doubt on the plaintiff’s credibility and the credibility of his sole corroborating witness, Mr Williams.

In these circumstances, where the weight of evidence supports the defendant’s version of events, it is arguable that the failure of both parties to call Mr Schubring works in the defendant’s favour. In short, the most that can be said of the defendant’s failure to call Mr Schubring is that Mr Schubring’s evidence would not have added further corroboration to his version of events, whereas the plaintiff’s failure to call Mr Schubring raises the inference that Mr Schubring would have been unable to assist the plaintiff by contradicting the events asserted by the defendant, and independently corroborated.

However, a complicating factor is that Mr Schubring’s evidence could reasonably be expected to cover several disputed events, which are largely independent (in the sense that the occurrence of one event does not necessarily imply the occurrence of another). It is also fair to say that the defendant’s existing case is stronger in respect of certain disputed events (for example, the alleged interception of the plaintiff by Mr Bowen) than others (for example, the clarity and specificity of communications at the lunchtime meeting). Thus, a possible reason for the failure of both parties to call Mr Schubring is that, while his evidence may have assisted one party in respect of certain disputed events, it would not have assisted that same party in respect of certain other disputed events. This then raises the question of whether the rule in Jones v Dunkel should be applied to each party’s case globally, or separately in respect of each disputed event.

Ultimately, it is unnecessary for me to reach a concluded view on these issues. As outlined below,[47] the video evidence played to the Court after the defendant reopened his case directly depicts aspects of the third disputed event (being the interception of the plaintiff by Mr Bowen), such that Mr Schubring’s failure to give evidence in relation to that event is now less significant. This footage has also allowed me to draw conclusions about the relative credibility of the plaintiff and defendant as witnesses, and their respective versions of events. In those circumstances, disrupting or modifying those conclusions based on inferences about evidence that Mr Schubring did not give is unnecessary and unwarranted.
[47]See [125]-[136].

Consideration of third disputed event

I turn now to my findings in relation to the disputed events. For reasons that will become apparent, it is convenient to start with the third disputed event — that is, whether, during his first approach to the up ramp during the second FMX performance set, the plaintiff was intercepted and stopped by Mr Bowen, who warned him that the distance between the ramps was too short for his performance.

Mr Bowen is a 43-year-old electrician who was engaged to perform at the event as a ‘stunt clown’.[48] The role required that Mr Bowen appear in a clown costume and perform stunts, including jumps on his motorbike and standing on the side of a car while it was driven around the outside of the oval on two wheels. He also drove around in a ‘baby quad’ bike[49] and entertained the crowd between his performances by, for example, launching lollies into the crowd using a leaf blower[50] and ‘high fiving the kids and signing their hats and getting photos with them’.[51] Many of these activities are captured in the video footage played to the Court after the defendant reopened his case.[52]
[48]T430.07-08 (Mr Garcia).
[49]T430.10 (Mr Garcia).
[50]T430.11-13 (Mr Garcia).
[51]T709.05-07 (Mr Bowen).
[52]Some of the footage contained in exhibit P23 but not played in open court also shows Mr Bowen entertaining the crowd prior to the formal commencement of the show. I watched the entirety of the footage contained in exhibit P23 in chambers.

Mr Bowen commenced competing as a motocross rider in the late 1990s and started FMX when he was 25 years old. He previously ran a non-profit organisation called ‘Crossing the Gap’, which involved travelling around Victoria, New South Wales and South Australia with a portable down ramp that he built, and performing shows at schools and community events. It also involved teaching children to ride motorbikes on different tracks and jumps. In about 2014, Mr Bowen commenced working as a stunt clown at monster truck shows, and continues to perform that work from time to time.

Before the second set of FMX performances by the plaintiff and Mr Schubring, Mr Bowen performed a set of jumps together with a quad bike rider and razor rider. That performance set involved the riders acting out a narrative whereby Mr Bowen — in character as ‘Benny the Clown’[53] — wants to be an FMX performer in the show despite an apparent lack of experience, and is taught by the quad bike rider. Mr Bowen said that the ramps were set at a distance of 55 feet apart during that performance, and that the jumps were performed at that distance without incident.
[53]T429.28-30 (Mr Garcia).

Shortly after leaving the oval following his performance, Mr Bowen saw the defendant ‘sitting in his monster truck just near the pits … frantically trying to get out of the truck and yelling’.[54] The defendant was ‘yelling and waving his hands at me’.[55] According to Mr Bowen:

He just said, ‘Stop them, the ramp’s too close, the ramp’s too close’. He was yelling out, waving his hands trying to – because he was sort of strapped in his truck. I think he was even trying to get out of it and I sort of jogged over and seen what he wanted and he said, ‘The ramp’s too close’ and the motorbikes were warming up, like they were riding past the ramp and warming up their bikes getting ready to do their next act, and I looked across and straight away I could see that it was too close as well …[56]

[54]T715.22-25.

[55]T716.08.

[56]T717.28-718.06.

Mr Bowen said that ‘I could just straight away see that [the ramps were] too close. I’ve done it, done it for years and just knew looking at it.’[57] He said that he ‘bolted as fast as I could because I [could] see that he [the plaintiff] was about to do the jump.’[58] Mr Bowen said:

I didn’t think I was even going to get there in time to stop him and I ran and I stood in front of, between him riding at the ramp and the ramp and I stopped him before he went off the ramp …
…
And I remember it clearly because I was embarrassed to – like I was feeling bad for the show, that I was running, making it look so serious, because normally I would try and skip or make it sort of look funny when I move myself around the oval, but in this particular instance I knew I just had to go as fast as I could and it was a bit hard to make it not sort of – yeah, make it look funny. I just had to run and just – and I did actually get there before he rode off …[59]

[57]T718.29-31.

[58]T719.03-04.

[59]T719.18-21; T720.14-22.

When recalled to give evidence after the defendant reopened his case, Mr Bowen reiterated that:

I can still actually remember running across, because normally as the clown I try not to look too serious, but when I actually had to run across the oval like this I couldn’t skip or anything like that, I just had to run flat out because I was actually worried about him overjumping it.[60]

[60]T1075.16-21.

Mr Bowen said that the plaintiff skidded to a stop no more than 30 metres from the start of the up ramp. According to Mr Bowen, ‘I don’t think he really thought I was going to stand in front of him and then I did, so he was a bit unhappy with me.’[61] According to Mr Bowen:

… [The plaintiff] said, ‘What are you doing?’, and he was agitated with me, I could tell, and I said, ‘The ramp’s too close’ and he said, ‘No, it’s not’. And I said, ‘Yes, it is’, I said, ‘It’s too close’, and he said, ‘No, it’s not, Shuey [Mr Schubring] measured it’ … Matt Schubring was parked on his motorbike. I can picture that as clear as anything, he was sitting on an orange motorbike, and he was, he had his left hand on his throttle revving it, which is like leaning across to the wrong side, and his right hand was around on his exhaust pipe warming up his hands on his exhaust pipe …
… I jogged across to where Matt Schubring was, thinking that I’d already talked to [the plaintiff], and because he said that Matt Schubring had measured it, I ran across and I said to Matt, I said, ‘The ramp’s too close’ and he sort of had this blank look at me. And I’m saying, ‘No, it’s definitely too close’ and while we were having that discussion – I don’t even remember him saying much to me, he was just kind of looking at me like, no, it’s in the right spot, and while we did that Jayden just rode past both of us … so I wasn’t in the way anymore, and he rode past and jumped the ramp.[62]

[61]T721.11-13.

[62]T721.22-722.15.

When recalled after the defendant reopened his case, Mr Bowen reaffirmed that he recalled the plaintiff skidding to a stop,[63] and his evidence regarding his conversation with the plaintiff was unchanged.[64] He also added that ‘I don’t think Mr Schubring believed me that the ramp was in the wrong spot while I was having the conversation with him.’[65]
[63]T1081.27-28.
[64]T1066.27-30.
[65]T1069.05-07.

Mr Bowen said that the plaintiff:

… just rode off like I’d had no conversation at all, rode past the truck, had a look at it, and rode around and then I just thought he would be getting off to measure it and he just rode around and then just jumped it again …
…
I’m watching, I am … watching in disbelief. Like I could not, I could not believe, after being told that the ramp was in the wrong spot, that someone would ride off. And I was, you know, I was – you know, I’d never seen anything like that before …[66]

[66]T722.20-24; 722.29-723.02.

Following the accident, Mr Bowen walked back to the pit area and got on his ‘baby quad’ bike. During his initial evidence (before the defendant reopened his case), Mr Bowen was shown footage of the moments after the plaintiff’s crash where he can be seen riding over to the plaintiff. When asked whether he recalled what he was doing at that time, Mr Bowen said:

Yeah, I do actually. I said to him [the plaintiff], ‘Are you right’, I had a bit of a conversation and then I said, ‘Oh, you should have listened to the clown’.[67]

[67]T726.11-15.

During cross-examination, Mr Bowen reiterated his disbelief at the plaintiff’s ignoring his warning:

[W]ith freestyle motocross, if someone says the ramp’s in the wrong spot or there’s some doubt about it, like everyone stops and checks it. Like I’d had that conversation already with him and I just thought that he would at least go and talk to Matt, because he’s saying that Matt measured it, and he’s got me there saying, who – I’d already done a jump, it’s not like I was nobody, and I’d told him to stop and he shouldn’t jump it, and then he went, he went and jumped it. And I even went and said to him when I rode my motorbike over there, when I come back on the four wheeler, I said, ‘You should have, should have listened to the clown’.[68]

[68]T775.19-30.

The plaintiff unequivocally and categorically denied this version of events when put to him before the defendant reopened his case. He said that he was never intercepted by Mr Bowen or warned that the distance between the ramps was too short. He did not resile from this position when informed that the defendant, Mr Bowen, Mr Brunner and Mr O’Neill would all give evidence to this effect.

Those witnesses all testified to having witnessed the plaintiff’s interception by Mr Bowen.

Consistently with Mr Bowen’s evidence, the defendant said that he was sitting in his monster truck when he noticed that the ramps were too close. He said that the cabin of his monster truck is approximately three metres above the ground and that:

I’ve got a bird’s eye view, I’m looking from the pit straight across at the infield. I’ve got great vision. I can see everything in front of me.[69]

[69]T470.11-13.

Unlike Mr Bowen, the defendant said that he witnessed the down ramp being moved from its position at 55 feet immediately after the performance by Mr Bowen, the quad bike rider and razor rider:

I can see the ramp moving backwards. Because of that side I was sitting on I’m blindsided to the driver’s side of the truck, so I see Jayco [the plaintiff] and Matt [Schubring] ride out.

…
Now the ramp starts moving backwards, that’s the down ramp, very slowly and I can see Mr Archer, he’s doing like little corrals, little circles guiding it back. So I could see him and then he goes out of vision, and then I could see him and he goes out of vision. Then the ramp stops, the down ramp stops moving back.[70]

[70]T472.19-22; 472.28-473.03.

The defendant said the plaintiff’s clothing enabled his identification as the motorbike rider completing the ‘corrals’:

Well two guys ride out, one’s in darker colour and Matt [Schubring]’s in orange gear so I can definitely see that it’s Jayco [the plaintiff] that’s there corralling around. Both are wearing different coloured gear.[71]

[71]T473.17-20.

The defendant explained that his vision of the plaintiff was intermittently obstructed by the down ramp truck:

I could see him, he’d come into vision and then he disappeared, and he’d come into vision and he disappeared. Just because his motorbike was running and he was doing as I call little corrals, so he was doing loops, little loops and he was coming in my vision, out of my vision.
…
So I’d see him there and then he was doing a circle going back, and obviously he’s communicating with the driver looking at the paint mark on the ground, communicating, going around like that.
…
This happened half a dozen times. This is in a pretty quick time frame, it wouldn’t have taken definitely any longer than a minute. It could have even been quicker than that.[72]

[72]T474.24-29; 475.02-05, 09-12.

The defendant said that he was unable to see Mr Schubring during this process, as Mr Schubring was on the side of the down ramp facing away from the defendant and the defendant was ‘completely blindsided to that side of the truck’.[73] However, he could clearly see that the plaintiff was communicating with the driver of the truck:

As he’s corralling around coming in and out of my sight, he’s obviously looking at the paint marks which puts him in direct contact, eye contact, with the rider. Let’s call it the driver of the truck. It’s obviously someone’s driving it, it’s moving, and as he’s disappearing out of site [sic], he’s obviously nodding to him or waving to him. His exact communication I can’t see, but it’s very obvious what he’s doing. Very, very obvious.[74]

[73]T474.02-03.

[74]T630.19-26.

The defendant was unable to say with certainty who was driving the truck at that time. He said, ‘I know Matt Schubring and Mr Archer ride onto the infield … but I can’t answer honestly who’s in the truck, moving it backwards.’[75] The plaintiff categorically denied corralling the ramp in the manner described by the defendant.[76]
[75]T679.20-22.
[76]T700.17.

When the down ramp stopped moving, the defendant was immediately concerned about its placement:

Well when it stopped I’m like, I’m looking at it and I’m thinking are they stopped. As I say, I’ve been around this since day one. I had a concern straight away that it looked like it was a little bit short to me.[77]

[77]T474.05-08.

The defendant further explained that:

… I’ve ridden freestyle and I’ve been over them same jumps, I’ve been over them jumps hundreds of times and you just have to look and you can see that, you know, the ramp’s out of position by three, three metres, four metres. So it was obvious to me that it was short.[78]

[78] T494.31-495.05.

Consistently with Mr Bowen’s evidence, the defendant said he immediately sought to attract Mr Bowen’s attention:

I was yelling at the top of my voice from where I was in that monster truck just off to the back of the gate. I’m yelling out, ‘Benny, Benny’, et cetera, until I got his attention … as far as I was concerned the ramp was in the wrong spot so I’ve relayed this to Benny. I’ve gone, ‘They put the ramps in the wrong spot, it’s in the wrong spot’ and he’s kind of looked at me, and I’m like – and he’s looked over at the ramp and then next minute he’s just started sprinting as fast as he could towards the up ramp.[79]

[79]T476.02-12.

The defendant said that, by this time, the plaintiff ‘was doing his take off routine’ and that, when Mr Bowen jumped in front him, he ‘almost like had to make an emergency stop’:[80]

Like it was, you know, a split-second later he would have clobbered Benny [Mr Bowen] or Benny wouldn’t have jumped in front of him, he wouldn’t have – he was right that split-second.[81]

[80]T476.15, 19-20.

[81]T476.20-23.

At that point, the defendant ‘breathed a sigh of relief’.[82] He said that there was a brief conversation between the plaintiff and Mr Bowen and that Mr Bowen then went over to Mr Schubring who was on his motorbike nearby. He expected to see the plaintiff ride towards the down ramp to check its position, but instead saw the plaintiff return to the start of his run up, approach the jump, overshoot the down ramp and crash. The defendant said he had a clear view of these events.
[82]T476.25.

Mr Brunner, the DJ at the event, also attested to seeing the interception of the plaintiff by Mr Bowen as described above. He said that he had an unobstructed view of the infield and ramps from his DJ station, and estimated that he was 50 metres from the up ramp. He said that he was watching the performers, rather than the crowd, ‘to make sure my cues for the music are in line with the performance that is coming out’.[83] The song he chose for the FMX performances was ‘Freestyler’. Mr Brunner recalled that the ramps were moved during the event, but could not recall who moved them.
[83]T790.12-14.

Mr Brunner had no specific recollection of seeing Mr Bowen and the quad bike rider jumping the ramps, or of seeing the plaintiff and Mr Schubring enter the infield from the pit area. However, he believes that he would have seen the FMX performers re-enter the field, as this was his cue for him to start playing ‘Freestyler’ again.

Consistently with Mr Bowen’s and the defendant’s evidence, Mr Brunner said that ‘Benny the clown, or Benny Bowen jumped in front of the – up ramp and stopped a rider and was talking to him’.[84] He said this was ‘sort of out of character for Benny. He is a clown but it was not what he usually does at the shows to stop someone from doing their performance, sort of thing’.[85] He continued, ‘Benny normally stays away from that – that area because it’s, there’s a high risk sort of act in the show, so the riders need their concentration’.[86] According to Mr Brunner:

… [Mr Bowen] sort of doesn’t interfere with someone else’s act … so it was weird for him to sort of stand in front of a ramp when someone was on a motorbike … I haven’t seen him do anything like that …[87]

[84]T793.19-21.

[85]T793.23-26.

[86]T794.13-16.

[87]T812.18-23.

Mr Bowen estimated that the interception occurred approximately 10 metres from the up ramp.

According to Mr Brunner, after the interception, ‘Benny [Mr Bowen] stepped out of the way and then the rider continued with his run up and jumped the jump’.[88] He clarified that the plaintiff returned to the start of the run up at the end of the field to gather speed, and the next thing he saw was the plaintiff approach the jump. He did not watch the landing, but was alerted to the fact that an accident had occurred when he heard the tone in the MC’s voice change. He recalls that he ‘turned around and looked up and saw that there was something happening over the side of the field’.[89]
[88]T794.21-23.
[89]T795.17-19.

Mr Brunner said that, in the period after the accident:

I played some songs to get the crowd moving with a song or something like that, and it was, like, maybe a YMCA or something like that just to, just to fill that little bit of a gap until the field or the rider was moved away from the accident site.[90]

[90]T795.28-796.02.

Mr O’Neill also attested to seeing the interception of the plaintiff by Mr Bowen as described above. Mr O’Neill was involved in identifying Korumburra as a suitable location for the event. He described himself as the ‘middleman’ between the defendant and various persons ‘around town’ in relation to the event.[91] He was not involved in engaging the performers at the event, but made available his B-Double milk tanker for Mr Schubring to jump over.[92] He agreed that his business, O’Neill’s Bulk Tanker Service, had a role as ‘sponsor’.[93]
[91]T823.02-13.
[92]T824.13-15.
[93]T824.07-11.

Mr O’Neill said that he was on the infield at the time of the second FMX performance.[94] He said that he was being interviewed by the MC and estimated that he was 20 to 50 metres away from the jumps.[95] He recalls seeing two riders ‘stepping out the ramps … walking around, checking out the ramp truck, down ramp’.[96] He said that there was ‘a bit of activity with the ramp truck, it started up, I believe they moved it’.[97] He said they may have had a measuring tape at the time.[98]
[94]T830.13-22.
[95]T832.22-833.02.
[96]T833.07-10.
[97]T833.13-14.
[98]T835.04-07.

Mr O’Neill said that he believes one of the motorbike riders moved the ramp truck while the other was outside the truck.[99] In cross-examination, Mr O’Neill acknowledged that he could not recall specific details of the ramp movement, but reiterated that:

Look, what I remember, I just remember them being out in front of the ramp truck and the – the up/down ramp and, yeah, that’s – they were out there, that’s, yeah, I don’t recall anyone else out there.[100]

[99]T838.17-23.

[100]T858.24-28.

Mr O’Neill recalled seeing Mr Bowen stopping a motorbike rider by waving his hands in the air.[101] He recalled this occurring somewhere in the middle of the two ramps.[102] The motorbike rider came to a complete stop.[103] Mr O’Neill recalled Mr Bowen and the motorbike rider having a conversation, but was too far away to hear it.[104] After the conversation, the motorbike rider proceeded to the run-up, overshot the down ramp and crashed.
[101]T839.22-23; 841.24-26.
[102]T840.29-841.01.
[103]T841.27-28.
[104]T841.29-842.10.

Mr O’Neill said that he was ‘one hundred per cent’ sure that a motorbike rider was stopped by Mr Bowen,[105] and said that it was ‘[n]ot long at all’[106] between Mr Bowen stopping the rider and the jump occurring.
[105]T843.02-03.
[106]T843.17.

Mr O’Neill disagreed that the interception could have been misinterpreted as being part of Mr Bowen’s clown act, as ‘he was running towards the biker waving his hands and it was a pretty clear indication, “hey, stop”’.[107]
[107]T863.13-15.

For completeness, I note that Mr Williams, a witness for the plaintiff and spectator at the event, denied seeing Mr Bowen intercept the plaintiff. He was ‘certain’ the plaintiff was not stopped during his run up.[108]
[108]T287.22-23.

The relevant footage shown to the Court after the defendant reopened his case is taken from a position on the driver’s side of the down ramp truck, looking towards the up ramp. It commences by showing the plaintiff on his motorbike at a short distance from the beginning of the up ramp, either stationary or moving very slowly away from the ramp in a left hand direction. Moments later, Mr Bowen appears from behind the up ramp when viewed from the position of the camera. It is clear that Mr Bowen is interacting with the plaintiff. Mr Bowen commences walking towards the position of the camera and briefly turns back to the plaintiff before the plaintiff rides away from the up ramp in the direction of the start of the run up to the up ramp.

The footage then cuts to what seems to be a very short time later, taken from the same position. Mr Bowen can be seen speaking to Mr Schubring, who is at the perimeter of the oval on his motorbike. The plaintiff is also present on his motorbike. Mr Schubring rides off in the direction of the start of the run up, immediately followed by the plaintiff. The plaintiff then approaches and mounts the up ramp, leaves the ground, overshoots the down ramp, and crashes. Immediately before and during the plaintiff’s jump, Mr Bowen can be seen slowly walking back towards the pit area.

Relevantly, the footage is not entirely consistent with the viva voce evidence of any one witness. Of course, this is not surprising — it is well established that memory formation is a complex phenomenon that does not operate in the manner of a mechanical recording device. Honestly held memories can be unreliable and memories change with the passage of time. In an oft-quoted passage from Watson v Foxman, a case concerning allegedly misleading spoken words, McClelland CJ said:

[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.[109]

[109](1995) 49 NSWLR 315, 318-9.

In Graham v The Queen, Gaudron, Gummow and Hayne JJ similarly noted that, ‘whatever a person may believe, and no matter how earnestly that person may try to be accurate, experience demonstrates that the memory of events does change as time passes.’[110] In the present case, almost six years had passed between the events in question and the witnesses giving evidence of those events.
[110](1998) 195 CLR 606, 608 [5].

By chance of fate, this case included a rare opportunity to test the accuracy of witness memories by comparing their viva voce evidence to a relevant videorecording, the existence of which was unknown to the witnesses when they gave their evidence.

Broadly, discrepancies between the viva voce and video evidence may go to either reliability or credit — either the witness was honestly mistaken about precisely what occurred (including for the reasons outlined in the extracts above), or the witness was deliberately dishonest in recalling the relevant events.

In the present case, I consider that discrepancies between Mr Bowen’s evidence and the video footage go to reliability, whereas the discrepancies between the plaintiff’s evidence and the video footage go to credibility.

The main discrepancy between Mr Bowen’s evidence and the video footage is the location of the plaintiff when Mr Bowen is conversing with Mr Schubring on the perimeter of the oval. Whereas Mr Bowen remembered speaking with Mr Schubring alone when the plaintiff completed the jump that resulted in his injuries, the footage shows that the plaintiff was present during that conversation, and that it was not until the conversation concluded that the plaintiff rode away to complete his jump. The footage also indicates that Mr Schubring, and not the plaintiff, rode away from Mr Bowen first.

In my view, this discrepancy can be explained by the efflux of time and does not undermine the substance of Mr Bowen’s evidence — that he ran across the field and intercepted the plaintiff, that he warned the plaintiff that the ramps were too close, and that he went over to Mr Schubring after the plaintiff said that ‘Schuey measured it’. These key events are all consistent with the video footage and I am satisfied that they occurred substantially as Mr Bowen described them.

Mr Bowen’s recollection of the plaintiff coming to a stop on carpet is also inconsistent with the footage, which shows that the carpet was laid on the approach to the up ramp that was not ultimately used. However, again, this is not a discrepancy that I regard as undermining the substance of Mr Bowen’s evidence. The footage clearly shows that carpet was laid, and it is therefore unsurprising that Mr Bowen recalled that it was used by the riders. Notably, the plaintiff’s original evidence was consistent with Mr Bowen’s in this respect.

On the other hand, the major discrepancies between the plaintiff’s evidence and the video footage cannot be explained by the fallibility of memory. During his original evidence, the plaintiff categorically denied having any interaction with Mr Bowen at the base of the up ramp, or of being warned that the ramps were too close. He repeated this denial when told that four witnesses would attest to this version of events. The footage demonstrates that the plaintiff’s denial was untrue. The plaintiff’s attempts at explaining away his interaction with Mr Bowen when shown the footage — including that he was just ‘cruising around’[111] at the base of the up ramp and that the footage shows ‘contact’ but no ‘conversation’ between the plaintiff and Mr Bowen[112] — were wholly unconvincing. His insistence that Mr Bowen, the defendant, Mr Brunner and Mr O’Neill were all mistaken about his being stopped, in face of footage to the contrary,[113] was nothing short of remarkable.
[111]T936.05, 957.01-02.
[112]T950.28-29.
[113]T963.23.

Before turning to the other disputed events, it is appropriate to make some further comments on the credibility of the relevant witnesses in light of the above conclusions.

Conclusions on credit

The plaintiff’s negligence claim turns upon acceptance of his account of the three disputed events. The alleged peripheral incidents canvassed at trial added context rather than substance to the plaintiff’s claim. A positive finding of credit was therefore essential if the plaintiff’s case was to succeed.

The footage shown to the Court after the defendant reopened his case directly depicts an interaction between Mr Bowen and the plaintiff at the base of the up ramp shortly before the jump that resulted in the plaintiff’s injuries (ie, it provides direct evidence of the moments after the alleged interception). On the other hand, the Court was not shown any footage said to depict disputed events one and two. The credibility of the relevant witnesses in relation to these events is therefore crucial.

As outlined above, I consider that the plaintiff was untruthful in relation to Mr Bowen’s interception.

This was not a case where the plaintiff presented as a poor historian; rather, he lacked objectivity which coloured his evidence.

When asked if his memory may have been affected by the efflux of time, the plaintiff said:

It’s been six years, so it’s been a long time, but I can remember such a significant and traumatic event that occurred in my life. It’s something that will be with me for the rest of my life, so – there’s been no memory lost on the significant trauma that I had.[114]

[114]T218.07-11.

The plaintiff was a man profoundly hurt and aggrieved by the injuries he sustained and the impact it has had on his FMX career. The plaintiff is an extremely talented rider and aspired to be one of the best FMX riders in Australia and internationally. He was at the peak of his career at the time of the incident and preparing to perform overseas in his first fulltime contract as a FMX rider. According to the plaintiff, by the age of 16:

[t]he only thing that I thought about was freestyle motocross. It was what I was good at and what I was gifted and what I think is what I was born to do. So everything I did, whether it was on or off the bike, it was to put me in the best position possible to follow my dream and follow my career in freestyle motocross.[115]

[115]T32.11-17.

It was evident throughout the trial that the plaintiff was extremely proud of his achievements and expected a successful future in the industry.

The plaintiff gave his evidence in a clear and direct manner. He did not appear to be confused and, making allowances for the stress of giving evidence, he was able to understand and answer questions, particularly in cross-examination. In contrast, the defendant was easily distracted, gave long-winded answers and often embarked upon irrelevant evidence.

The plaintiff’s submission can only succeed if, in accordance with the above extract from Stevens v Brodribb Sawmilling Co Pty Ltd: the performers were not competent to control the system of ramp movement; or the particular circumstances of the event gave rise to a risk of confusion such that the defendant was required to prescribe areas of responsibility within that system (which he failed to do), or to retain and exercise a supervisory power over that system.

Starting with the question of prescription and supervision, the extract from Stevens v Brodribb Sawmilling Co Pty Ltd makes clear that a duty to supervise independent contractors (or to prescribe particular responsibilities) only applies where other reasonable measures cannot adequately mitigate the relevant risk of injury arising from the potential for confusion between contractors. In my view, there are reasonable measures that could be, and were in fact, taken by the defendant, such that the defendant was not required to supervise the performers once they were tasked with ramp movement. Those measure included:

(a) communicating to the performers that the ramps would be used by multiple performers, and at different distances, during the course of the event;

(b) communicating to the performers that they would be responsible for ramp movement during the course of the event;

(c) providing the performers with an opportunity to set up, implement and practise a ramp movement system well before the event commenced; and

(d) supervising the set up and rehearsal to ensure that a ramp movement system was agreed and practised by the performers, and that there was no confusion about their respective areas of responsibility within that system.

My finding that Mr Schubring and the plaintiff together moved the down ramp immediately prior to the plaintiff’s second performance effectively establishes that the defendant discharged these duties. Put simply, the plaintiff and Mr Schubring were aware that moving the ramp at this stage of the event was their responsibility, and accordingly proceeded to perform that role. The evidence revealed no confusion or misunderstanding about their performance of that task, nor any interference from the other performers who had used the ramps previously. I would nevertheless be satisfied that the defendant mitigated any risk of confusion by establishing a forum, the lunchtime meeting, set up and rehearsal, at which areas of responsibility were discussed and allocated. At that forum he communicated unequivocally that he would be performing himself as a monster truck driver during the event and that ramp movement was to be performed by the riders.

The fact that Mr Bowen was not present for the lunchtime discussion did not generate confusion in the circumstances because of his history of working with the riders other than the plaintiff, and with the defendant. It was reasonable to expect Mr Bowen to ‘br[ing] himself up to speed’ in the hours between his arrival and the start of the event.[207]
[207]T598.05-06. See also T598.28-599.01.

This then leaves the question of whether the performers were competent to control the ramp movement system.

Here, it is important to make some comments about submissions by the plaintiff that aspects of the defendant’s duty of care were ‘non-delegable’.

Strictly speaking, a duty can only be described as ‘delegable’ or ‘non-delegable’ where the putative delegee is someone other than the person to whom the duty is owed. This is because the effect of ‘delegating’ a duty to the beneficiary of that duty is simply to extinguish the duty. As noted by Wilson and Dawson JJ in Stevens v Brodribb Sawmilling Co Pty Ltd:

We think that such a duty in this case was non-delegable, although for reasons which can be expressed more simply and in a different way. Any such duty was, in effect, a duty to exercise care in the co-ordination of the activities of various contractors. No question arises of the delegation of that function to any separate contractor and it can hardly have been delegated to them all merely by reason of their having been engaged as independent contractors. In that event the duty would have been negated and ceased to exist. Put another way, the duty of coordinating the activities of the contractors can hardly have been performed by returning that responsibility to them.[208]

[208](1986) 160 CLR 16, 45-6.

Applying their Honour’s comments to the present case, the defendant’s duty to coordinate the event was ‘non-delegable’ in the sense that any such delegation would effectively deprive the defendant’s duty of meaningful content. That is, such a delegation would be impermissible not by virtue of a relationship of ‘special responsibility’,[209] but by virtue of the incoherence of assigning such a duty to the person or people to whom it is owed. I understand the plaintiff’s complaint to be, terminology aside, that this is precisely what the defendant did.
[209]Kondis v State Transport Authority (1984) 154 CLR 672, 687 (Mason J).

The question of whether the defendant was required to retain control over the ramp movement system is not a question of ‘delegation’, but rather a question of whether his duty of coordination required him to retain that control. As noted by Wilson and Dawson JJ in the passage from Stevens v Brodribb Sawmilling Co Pty Ltd extracted above, the law does not require an entrepreneur to retain control over their contractors’ system of work ‘if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur.’[210]
[210]See [235].

I have already concluded that ongoing supervision of the ramp movement system was not required in the circumstances of this case. I now turn to the question of whether the performers were competent to control the system of ramp movement or, in the plaintiff’s words, to have that responsibility ‘delegated’ to them.

I have found that the ramps were moved to the wrong position as a result of Mr Schubring’s and the plaintiff’s mistake. The plaintiff asserts that the fact that a mistake was made renders the defendant liable for the injury that followed. Conceptualising this submission in the context of Stevens v Brodribb Sawmilling Co Pty Ltd, the plaintiff must be understood to argue that the mistake was a consequence of the allocation of the task of ramp movement to Mr Schubring and the plaintiff, either because it created confusion, or they were not competent, in the sense employed by Brennan J, to perform that role. I have addressed the alleged confusion above. In relation to the question of competence, it should be noted that it does not necessarily follow from the mere fact that Mr Schubring and the plaintiff made a mistake that they were not competent to perform that task.

In booking the plaintiff, the defendant engaged a highly experienced and talented young performer, albeit only a matter of days before the event, who was very familiar with the ways FMX ramps are put together, used, and transported, and who had rehearsed, and on his own evidence had performed at between 300 and 400 shows as at the event date.[211] The mechanism of setting up and moving ramps was entirely within the plaintiff’s skillset, irrespective of whether he held a truck license.
[211]T150.08-11.

The defendant undoubtedly placed considerable emphasis on Mr Schubring’s knowledge and experience. He noted that the set up, ‘was very easy because I had Matt Schubring’.[212] The defendant described Mr Schubring as ‘the highest skilled, the highest – longest serving rider’ on the day,[213] with whom he had worked at similar shows over the past decade. According to the defendant, ‘no one better knows that set up than him [Mr Schubring]’, noting how Mr Schubring ‘drove that ramp all around Australia,’ and had worked on his own ramps, including having ‘modified it, he did a lot of welding work on it and changed it to be a lot wider and a lot safer’.[214] It was the defendant’s view that there was ‘no one was more qualified than the riders’ to move the ramp.[215]
[212]T529.23.
[213]T538.25-26 (Mr Garcia). See also T248.20 (Mr Archer) where he describes Mr Schubring as ‘a more senior experienced rider’.
[214]T539.02-04.
[215]T606.07.

The matter of competence should not be an abstract assessment of credentials. Particularly in the case of the plaintiff, whom the defendant engaged at the last minute and had never met, it was incumbent upon the defendant to make an assessment on the day that the performers using the ramps were equipped to undertake the task of adopting and implementing a ramp movement system. The defendant did so at the lunchtime set up and rehearsal:

[Mr Howe] Following seeing the distances marked out you were satisfied that the riders were aware of the different distances?--- [Mr Garcia] Yes, everybody there that witnessed what had gone on. There’s no – there was no reason for there to be any concern. If it was slippery or raining or really windy there might have been some concern but it was a fine day and everything just went along great. It got set up easy, everybody helped. There was no reason for there to be any concern.[216]

[216]T453.23-31.

I reject the submission, to the extent that the plaintiff makes it, that given that the events run by operators such as ‘Nitro Circus’ and the ‘Crusty Demons’ engaged ‘track crew’ or ‘ramp technicians’,[217] the FMX riders should not have been considered competent to move ramps at the event. The scale, budget and tenor of this event was markedly different to such high-budget touring productions. I do not accept that there was an industry practice of using ramp technicians in community events like this. Mr Sinclair accepted that his expert knowledge, based on the big touring companies, was not relevant to this event.[218] The defendant and Mr Bowen gave evidence that it was common practice for performers to undertake that role.[219]
[217]T246.05-10, 307.26-308.02 and 364.15-16 (Mr Archer).
[218]T369.12-21, 374.12-14 (Mr Sinclair).
[219]T530.02 (Mr Garcia); T707.07-08 (Mr Bowen).

Finally, I reject the submission that the defendant’s decision to move the ramp on one occasion during the event evidenced some sort of concession that it was his exclusive role to be doing so. There is no question that the defendant was capable of moving the ramp in accordance with the paint marking system he observed the riders’ implement earlier in the day. However, that his skillset extended beyond a promotor and manager to an understanding of FMX and experience as a monster truck performer, does not necessarily expand the scope of the duties he owed in his capacity as promotor and manager.

Of course, such knowledge is relevant to assessing the reasonableness of the defendant’s response to hazards identified during the event by virtue of that knowledge. In that regard, the defendant, having noticed that the ramp was out of place from his position in his monster truck, took reasonable steps to intervene in the time available by flagging down Mr Bowen and directing him to warn the plaintiff. The defendant’s existing FMX knowledge bolsters the conclusion that he made a reasonable assessment of the competence of the riders. The fact that the defendant assisted Mr Bowen by moving the ramp is reflective of the defendant’s general cooperative attitude to the local, small-scale community event, and not demonstrative of a lack of competence of the performers.

Having engaged competent contractors, communicated the need for ramp movement, supervised the set up and rehearsal at lunchtime and tasked the riders with deciding amongst themselves who would move the down ramp at the relevant times, the defendant owed no residual duty. The defendant appropriately mitigated the risks arising from uncertainty about roles between performers by undertaking the above measures, and thus there was no requirement for ongoing supervision.

Had there been a duty to supervise, clearly, the defendant would be in breach. Nevertheless, as I find below, the defendant would not have been liable for any such breach given that the plaintiff voluntarily assumed the risk of being injured as a result of ramp misplacement for any reason, including the failure to supervise.

Breach of contract

The plaintiff alleges that the plaintiff was engaged under a contract which included an implied term that the defendant would take all reasonable steps as the event organiser to make the event as safe as reasonably practicable and to approach his role with due care and diligence. Further, the plaintiff pleads that it was an implied term of the contract that he would jump at a standard distance, defined by reference to industry practice, which was said to be 75 feet.[220]
[220]T32.01-02 (Mr Archer).

There is no evidence that the defendant’s duty of care under his verbal contract with the plaintiff was any more onerous than the duty he owed at law as promotor and manager of the event, and which I have concluded he did not breach.

Nor does the evidence establish an implied term to the effect asserted by the plaintiff. The question of the standard distance for FMX performers was traversed at length in the plaintiff’s, defendant’s and Mr Sinclair’s, testimony. I am satisfied that whilst professional FMX performances and competitions may frequently adopt a distance of 75 feet, any such standard cannot be automatically implied into contracts for performances at shows such as the 2015 event. Indeed, Mr Sinclair conceded, when asked about practices at shows other than the big-budget shows he regularly performs at, that ‘I think you’re asking the wrong person’.[221]
[221]T374.12-14.

Occupier’s liability

The defendant does not admit that he was the occupier of the Korumburra Showgrounds.[222] However, he did not dispute that he was responsible for making the application for an occupancy permit prepared by Ms Simmons. The defendant did not address occupier’s liability in his submissions, but I take him to deny any breach of his duties as occupier asserted by plaintiff.
[222]The plaintiff did not formally plead the statutory occupier’s duty but did plead that the defendant was the occupier of the site. The plaintiff relied on the statutory duty in his written submissions, see Plaintiff’s written outline of closing submissions dated 20 December 2021, [104]-[113].

Section 14B(3) of the Act provides:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

For the same reasons outlined above, I consider that the defendant’s duty as an occupier did not extend to supervising the movement of the ramps, and was not a ‘non-delegable’ duty to ensure that the ramps were in the correct position at any particular time.

The legislation outlines a number of mandatory considerations when assessing an occupier’s duty of care has been discharged. Section 14B(4) of the Act provides:

Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to –
(a)       the gravity and likelihood of the probable injury;
(b)       the circumstances of the entry onto the premises;
(c)       the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;

(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity;
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

These factors accord with those canvassed in my consideration of the defendant’s common law duty. For the same reasons, I do not consider that the defendant breached his duty of care as occupier of the Korumburra Showgrounds.

As I have not found any breach of duty, whether at common law or under statute, there is no need to examine the plaintiff’s alleged loss.

Voluntary assumption of risk

It is a complete defence to an action for negligence if the defendant can prove that the plaintiff voluntarily assumed the risk of being injured as a result of the defendant’s negligence. Whereas contributory negligence is concerned with the plaintiff’s failure to conform with an objective standard of care, voluntary assumption of risk is concerned with the plaintiff’s subjective awareness of the risk of being injured as a result of the defendant’s negligence.

To succeed in the defence, a defendant must establish that:

(a) the plaintiff had subjective knowledge of the facts constituting the risk;[223]

(b) the plaintiff fully appreciated and understood the nature and extent of the risk; and

(c) the plaintiff voluntarily accepted the whole risk, freely and without constraint.

[223]Section 53 of the Act reverses the burden of proof on this issue in relation to ‘obvious risks’.

In relation to the first requirement, I am satisfied that Mr Bowen clearly communicated to the plaintiff his opinion that the ramps were too close for the plaintiff’s performance and that, as a result, the plaintiff was aware of that risk. If not ‘obvious’ already, the risk of ramp misplacement became obvious at that time.

The defence often fails at the second stage because the risk assumed by the plaintiff is narrower or different to the risk which materialised. Thus, it is important to precisely articulate the risk that the plaintiff assumed. I am satisfied that, by saying to Mr Bowen, ‘Schuey measured it’ and proceeding to perform his jump, the plaintiff voluntarily assumed the risk of down ramp misplacement for any reason with one important exception — that is, a reason which materialised after Mr Schubring had last moved the down ramp.

As detailed above, I am satisfied on the balance of the probabilities that Mr Schubring was the last person to move the down ramp prior to the accident. The exception is therefore not engaged and, critically, the effect of the defendant’s negligence (if any) on down ramp misplacement must have crystallised by that point. By dismissing Mr Bowen’s concerns without checking the down ramp position, the plaintiff voluntarily assumed the risk that Mr Bowen’s concerns were, in fact, justified.

In relation to the third requirement of the defence, nothing in the video footage played to the Court indicates that the plaintiff’s assumption of the risk was anything other than voluntary, free and unconstrained. There is no indication that the plaintiff was under any pressure to assume the risk of ramp misplacement after being informed of that risk by Mr Bowen. On the contrary, it is clear that the plaintiff had ample time to check the down ramp placement (a quick and straightforward task). Indeed, that is what the defendant and Mr Bowen both expected him to do.

Therefore, I consider that, even if my conclusion in relation to the scope and breach of duty is incorrect, the defendant has made out a complete defence to the plaintiff’s claim.

Conclusion

In conclusion, the defendant is not liable for Mr Schubring’s and the plaintiff’s mistake. He did not owe a duty to ensure that they did not make a mistake, nor to ensure that the plaintiff was not injured. The defendant’s duty of care to the plaintiff in relation to ramp placement and movement was a duty to take reasonable care in organising the event, as promoter and manager of the event. He was entitled to assign the task of ramp movement to the performers and he was not required to engage in ongoing supervision.

Further, I consider the defendant discharged the duties that he did owe to the plaintiff. As discussed above, I have found that it was reasonable and appropriate for the defendant to assign the responsibility of the movement of the ramps to the riders, who, as he said many times, were in the best position to determine where the ramps needed to be located. I consider that the riders, as independent contractors, were competent to control the system by which they performed. They were the appropriate people to move the ramps for their performance, and as such minimise the risk of injury.

The defendant was not required to exercise an additional supervisory power over the ramp movement system during the running of the event, provided he discharged his duty above.

The defendant discharged his duty of care, in negligence and under contract and as an occupier of the Korumburra Showgrounds.

Had I found that the defendant breached his duty of care, I would nevertheless have found that he had no liability to the plaintiff, on the basis that the plaintiff voluntarily assumed the risk of injury as a result of the defendant’s negligence.

I will hear from the parties on costs.

[2022] VSC 57

17 February 2022