Carter v Hastings River Greyhound Racing Club

[2019] NSWSC 780

Supreme Court

New South Wales

Medium Neutral Citation:

Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780

Hearing dates:

18, 19, 20 and 21 March 2019

Date of orders:

27 June 2019

Decision date:

27 June 2019

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders:
(1) Judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs.

Catchwords:

TORT — Negligence — General principles — Personal injury — Greyhound racing — Operating a catching pen gate — Where the plaintiff was struck by a lure

 

Defences — Civil Liability Act 2002 (NSW), ss 5K,  5L — Whether the risk of harm was “obvious” — Whether operating the gate was a “recreational activity” — Whether there was a significant risk of physical harm — ss 60, 61 — Whether the defendant was a volunteer

  Breach — Whether the defendant failed to take reasonable precautions against the harm

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5F, 5G, 5H, 5K, 5L, 5N, 5R, 5S, 12, 50 and 61

Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Belna Pty Ltd v Irwin [2009] NSWCA 46
Campbell v Hay [2014] NSWCA 129
CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Derrick v Cheung (2001) 181 ALR 301
Doubleday v Kelly [2005] NSWCA 151
Echin v Southern Tablelands Gliding Club [2013] NSWSC 516
Falvo v Australian Oztag Sports Association [2006] NSWCA 17
Goode v Angland [2017] NSWCA 311
Great Lakes Shire Council v Dederer [2006] NSWCA 101
Hrybynyuk v Mazur [2004] NSWCA 374
Jaber v Rockdale City Council [2008] NSWCA 98
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
King v Western Sydney Local Health Network [2013] NSWCA 162
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Luca v Zupanov [2013] WADC 40
Mobbs v Kain (2009) 54 MVR 179
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55
Mulligan v Coffs Harbour City Council [2004] NSWCA 247
Nominal Defendant v Livaja [2011] NSWCA 121
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; (2007) 238 ALR 761
Russell v Edwards [2006] NSWCA 19
South Western Sydney Local Health District v Sorbello [2017] NSWCA 201
Thornton v Sweeney [2011] NSWCA 244
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wells v Council of the City of Orange (No 2) [2017] NSWSC 510
Woolworths Ltd v Strong [2010] NSWCA 282

Texts Cited:

Annotated Civil Liability Act, Third Ed, Dominic Villa

Category:

Principal judgment

Parties:

Jason Bruce Carter (Plaintiff)
Hastings River Greyhound Racing Club (Defendant)

Representation:

Counsel:
F Austin (Plaintiff)
D Kelly (Defendant)

  Solicitors:
Byrnes Lawyers (Plaintiff)
Mason Black (Defendant)

File Number(s):

2016/304492

Publication restriction:

Nil

Witnesses

The plaintiff’s experts on liability

Medical evidence

Background

The plaintiff’s interest in greyhounds

The pleading framework

The injury

The defence

The Wauchope greyhound track

The lure

The catching pen gate

The day of the accident

The accident

Liability

Whether the risk of harm was “obvious”

Whether operating the gate was a “recreational activity”

The defendant’s submissions

The plaintiff’s submissions

Consideration

Significant risk of physical harm

The defendant’s submissions

The plaintiff’s submissions

Consideration

Intoxication

Evidence

Consideration

Volunteers

The defendant’s submissions

The plaintiff’s submissions

Consideration

Volenti non fit injuria

Duty of care

Breach

The plaintiff’s submissions

The defendant’s submissions

Consideration

(1) Foreseeability – s 5B(1)(a)

(2) Not insignificant – s 5B(1)(b)

(3) Reasonable precautions – s 5B(1)(c)

Precaution (a) – gate modifications

The plaintiff’s submissions

The defendant’s submissions

Consideration

Precautions (b) and (c)

Consideration

Conclusion

Causation

The plaintiff’s submissions

The defendant’s submissions

Conclusion

Contributory negligence

The plaintiff’ submissions

The defendant’s submissions

Conclusion

Damages

After the accident

The plaintiff’s condition on release from hospital

The plaintiff’s ongoing medical treatment

The plaintiff’s mental health following the accident

The plaintiff’s circumstances as described in 2017

The plaintiff’s inability to drive

Events in 2018

Medical evidence

Question 2 – What are the ongoing effects of any injury sustained on 25 April 2015?

Question 3 – In particular, please provide you opinion and reasons as to whether the plaintiff has any of the following ongoing problems and whether they are related to the injury sustained on 25 April 2015:

(i) tibial and fibular factures

(ii) soft tissue injury to the back of his left calf

(iii) tibialis posterior dysfunction with arch collapse

(iv) moderate post-traumatic ankle osteoarthritis

Question 4 – Has the medical treatment received by the plaintiff to date been reasonable and necessary as a result of the incident on 25 April 2015?

Question 5 – Does the plaintiff require future treatment as a result of the incident on 25 April 2015? If so, please identify the type of treatment and its cost

Question 6 – Specifically, please provide your opinion and reasons as to whether the plaintiff will require a left ankle fusion at any stage and, if so why, when and give a detailed costing of that procedure

Question 7 – Has the plaintiff had any physical limitation or restrictions likely to have impaired his ability to undertake domestic household activities as a result of the incident on 25 April 2015? If so, please identify such limitations and restrictions, the type of activities likely to have been impaired and for what periods?

Question 8 – Has the plaintiff been left with any incapacity for work as a result of any injuries sustained on 25 April 2015? If so, for what type of activities?

Further operation

Credibility

Non-economic loss

Consideration

Scarring

Economic loss

Past and future out of pocket expenses

Future out of pocket expenses

Future operation

Past loss of earning capacity

The plaintiff’s submissions

The joint report dated 5 March 2019

Consideration

Future loss of earning capacity

Past and future superannuation

Past domestic care and assistance

Future domestic care and assistance

Result

Costs

The Court orders

Judgment

1. HER HONOUR: The plaintiff seeks damages for injuries sustained to his left leg on 25 April 2015 at the defendant’s greyhound racing track.

2. The plaintiff is Jason Bruce Carter. The defendant is Hastings River Greyhound Racing Club (“the Club”).

Witnesses

3. The plaintiff, as well as Kane Heuston, David Brasch and the plaintiff’s mother, Gail Kelly, provided affidavits, gave evidence and were cross examined. The plaintiff also relied upon the statements of Steven John Baker (undated) and Rex William Nairn dated 6 March 2019.

The plaintiff’s experts on liability

4. The plaintiff relied upon the report of Denis Cauduro of Cauduro Worksafe Pty Ltd dated 1 August 2017. He was not required to give evidence.

Medical evidence

5. The plaintiff relied upon the reports of Dr A G Hopcroft, treating orthopaedic surgeon, dated 8 September 2015; Nick Ratcliffe concerning total care costing of activities of daily living dated 18 April 2019 and 11 December 2017; Associate Professor Nigel Hope, orthopaedic surgeon, dated 12 July 2016 and 9 January 2018; Stephanie Barlin, podiatrist, dated 8 June 2016 and 19 May 2017; Associate Professor Dean A Pepper, orthopaedic surgeon, dated 21 April 2017; Mr Shane Murray, physiotherapist dated 2 May 2017; Dr Andrew Williams dated 14 May 2017; Dr B D Parsonage dated 21 July 2017; and Annie Hartley, vocational psychologist and Gillian Stewart, physiotherapist, from Vocational Capacity Centre dated 14 February 2018.

6. The defendant replied upon the reports of Anna Hughan, occupational therapist dated 24 August 2017; Dr David Maxwell, orthopaedic surgeon dated 7 September 2017; and Kieran Fraser, clinical psychologist, from Medico Legal Assessment Group dated 25 July 2018.

7. Associate Professor Hope and Dr Maxwell prepared a joint report dated 11 March 2019. They were not required to give conclave evidence.

Background

8. The plaintiff was born in 1971 and is the second eldest of four children. He is currently 47 years of age.

9. His father worked as a truck driver. When the plaintiff was about four years old, his parents separated. He and his siblings lived with their mother. About a year later, his mother married a man who worked as a carpet layer, and the family settled in the Southern Shire area of Sydney.

10. The plaintiff left school in Year Nine. He had trouble with all subjects and was not a good reader or writer. He described himself as a “slow learner”.

11. The plaintiff wanted to be a jockey. He loved horses and was passionate about horse racing. However, although he got an apprenticeship at Randwick in Sydney, he quickly became too heavy to pursue his chosen career. He remained in the industry for approximately five years working instead as a stable hand.

12. It was during that time that the plaintiff started carpet laying. His step father encouraged him to get into the industry, organising jobs for him and teaching him the trade. In the years after he left school, the plaintiff would undertake track work early in the morning and then lay carpet in the afternoon. After five years as a stable hand, he gave up that work and transitioned into full-time carpet laying.

13. The plaintiff’s work as a carpet layer ordinarily followed the same daily routine. He would first cut the carpet and transport it in his van to the location of installation. On arrival, the plaintiff and whoever was working with him would remove any furniture from the room and rip up the existing carpet and underlay. They would then lay the new underlay and carpet, reposition the furniture and take the old carpet to the tip.

14. The plaintiff’s work involved a lot of bending, kneeling, crouching and carrying. He used a device called a “knee kicker” to install the carpet. It required him to place a device on the ground and forcefully ram it with his knee to secure the carpet into the wall. Carpet laying required heavy physical activity on a daily basis. The plaintiff worked Monday to Friday, commencing at approximately 7.00 am each day and finishing some time mid-afternoon.

15. When the plaintiff was approximately 22-23 years old, he was injured while laying carpet for a company at Bexley when he jammed his right knee into the prongs of an electrical plug. After his release from hospital, a bursa which had developed on the knee became infected, and he had to be re-admitted to hospital for 10 days. The plaintiff ultimately made a claim for compensation in relation to his injury and received a payout of approximately $15,000. He says he has not experienced any ongoing problems with his right knee since the infection healed.

16. In his mid-twenties, the plaintiff married. His wife worked as a hairdresser. They had two daughters. After this first marriage fell apart, the plaintiff was single for approximately three years before commencing a de facto relationship with his second partner. She was working in a hotel at the time. Their relationship continued for approximately four years. They had a son who is now in his teens. Throughout both relationships, the plaintiff lived in Sydney and worked as a carpet layer.

17. In about 2007, the plaintiff and his mother moved to Wauchope, in the Port Macquarie area. The plaintiff was able to source work in the area laying carpet, both as an employee and also for Harvey Norman as a sole trader under the name “George & Co”.

18. Before the accident, the plaintiff says was in very good health. The nature of his work meant that he stayed physically fit. He could walk long distances and had no problems running. He had no trouble sleeping, driving a car or attending to his daily hygienic and dietary needs. The plaintiff enjoyed fishing and had his own boat, which he was able to launch and operate without difficulty.

19. He did not have any mental health issues. He was not taking any medications. He had a number of friends with whom he regularly socialised. He worked on a full-time basis and did his own bookkeeping. At the end of the financial year, his accountant prepared his tax returns.

20. Initially after the plaintiff moved to Wauchope, he lived with his mother in various rented residential properties. Since around 2011, they have rented a nine-acre property at Port Macquarie. The property contains a house where the plaintiff’s mother and brother were living before the accident, and a self-contained converted garage (“the granny flat”) where the plaintiff lives. After the accident, the plaintiff’s mother moved into the granny flat with him to assist with his personal and domestic care.

The plaintiff’s interest in greyhounds

21. It was in around 2009 that the plaintiff became involved in the greyhound industry. On the recommendation of his brother, he purchased his first greyhound to train and race.

22. The plaintiff says his involvement with greyhounds has always been as a hobby. He began attending local greyhound races on weekends to watch his dog race. He says that while it was nice to occasionally place or win, he did not participate for the prize money, which was only ever a modest sum. Over time, the plaintiff obtained his own trainer’s licence and purchased more dogs. Ordinarily he would train the dogs at home, but at other times he would take the dogs to the tack at the local Wauchope Greyhound Racing Club (the “Wauchope greyhound track”) so his dogs could participate in the Sunday morning trials.

23. At the time of the accident, the plaintiff owned and trained approximately eight to 10 dogs. Caring for the dogs involved various physical activities. The plaintiff had to feed and look after them, and supervise their training. Prior to the accident, the plaintiff was able to carry out those tasks without difficulty.

The pleading framework

24. By amended statement of claim (“ASC”) filed in Court on 19 March 2019, the plaintiff pleaded that on Anzac Day, Saturday, 25 April 2015, he was lawfully upon the track of the Hastings River Greyhound Racing Club for the purposes of racing three of his dogs, respectively in races two, four and seven.

25. Between races two and three, the plaintiff was walking past a committee member of the Club, Steve Barker, who asked the plaintiff if he was free to operate the catching pen gate during races five and eight. The track had two gates: the catching pen gate and the returning gate. Although the plaintiff had never before operated a track gate during a race meeting, he had seen it done on numerous occasions and had done it himself two or three times at race trainings. He says he agreed to Mr Barker’s request as a gesture of good will.

26. The catching pen gate was located at the end of the first straight. To operate it, the plaintiff had to wait for the dogs to run past and then move the gate across the track to a point near the inside railing, leaving enough space between the gate and the railing for the lure to pass after the finish of the race. He then had to close the gate. This final step steered the dogs off the track and into pens, which prevented them from continuing to chase the lure around the track.

The injury

27. The plaintiff alleges that as the dogs ran down the first straight during race three, he moved the catching pen gate as required across to the inside railing, leaving just enough space for the lure to go past after the finish. As he stood between the gate and the railing, he noticed a dog fall at the first turn. He watched the fallen dog recover and run past the finish line, well behind the pack. It was in that moment, as the plaintiff’s eyes were fixed on the straggler, that the lure “suddenly and unexpectedly” smashed into his left leg between his knee and ankle, causing him to suffer personal injury, loss and damage. The plaintiff pleaded that his injury, loss and damage were caused by the negligence of the defendant, its servants or agents (ASC [2] to [8]).

28. It is common ground that the defendant, as an occupier, owed a duty to take reasonable care to avoid a foreseeable risk of injury to entrants and volunteers.

29. The plaintiff further pleaded (ASC [11] to [17]):

“Foreseeability and the Risk of Harm

11. It was foreseeable to a reasonable person in the position of the defendant that in failing to take reasonable care to avoid a foreseeable risk of injury to entrants and/or volunteers it would expose the plaintiff to a risk that he would suffer harm of the nature and in manner set out above.

The Scope of the Duty

12. The exercise of reasonable care extended to guarding against the risk that the entrants using the premises for usual and permissible purposes would suffer harm of the nature and in the manner set out above.

Significance

13. The risk of harm set out above was not insignificant.

Precautions

14. The risk of harm set out above could have been avoided by adopting the following precautions:

a. Delegating the job of operating the track gate to an employee and or someone properly trained in the operation of the gate.

b. Training and instructing the plaintiff not to stand between the track gate and the inside railing so that he was in the way of the lure; but to remain behind the gate at all times.

c. Providing a track gate with a flap in the bottom corner of the gate so that the gate could be closed immediately after the dogs had passed down the first straight and the lure could pass through the closed gate without it having to remain ajar.

Breach of Duty

15. In response to the risk of harm set out above, a reasonable person in the position of the defendant would have taken the precautions set out above.

Particulars

a. The probability of the occurrence of the risk was relatively high.

b. The harm would likely cause an unsuspecting person serious detriment.

c. The defendant was in a better position to assess the risk of harm and to avoid it than the plaintiff.

d. The burden of taking the precautions as set out above was not incommensurate to the risk of harm as they were relatively inexpensive and not inconvenient.

The social utility of the activity that created the risk of harm did not outweigh the taking of the precautions.

16. The defendant failed to adopt the precautions as set out above and thereby breached its duty of care to the plaintiff.

Causation

17. The failure of the defendant to take the precautions set out above were part of a set of conditions necessary to the occurrence of the aforesaid injury, loss and damage, particulars of which are set out in the Statement of Particulars.”

The defence

30. By further amended defence (“FAD”) filed on 20 March 2019, the defendant pleaded volenti non fit injuria, and denied it was liable pursuant to ss 5B, 5D, 5F, 5G, 5H, 5K, 5L, 50 and 61 of the Civil Liability Act 2002 (NSW). It also alleged that the plaintiff was contributorily negligent.

31. The defendant is a local, non-profit club comprised of a collection of country greyhound enthusiasts. It attracts few members of the public and offers very modest prize money. Races at Wauchope, as at Taree and Kempsey, are “non-TAB” and untelevised.

The Wauchope greyhound track

32. The Wauchope greyhound track is located along Beechwood Road, Wauchope. It contains a 600-metre track which holds races over 384 and 457 metres. On the day of the accident, race three was over 384 metres.

33. The layout and operation of the track has been best described by the president of the Club, Mr Rex Nairn, who has been its president since 1999 (Ex G(i), Tab 5). It is his description, which was not subject to challenge in these proceedings, which I gratefully reproduce.

34. In 2015, the Club was scheduled to hold 15 race meetings, in addition to trials every Sunday morning. The people required to operate a greyhound race consist of a lure driver, a starter, a catching pen gate operator and a return gate operator. The tasks involved in all of these roles are quite straightforward, including the role of catching pen gate operator, and there is no formal training given or required. The people who perform the roles are all unremunerated volunteers, with the exception of the lure driver and the starter, who are reimbursed for their travel costs. Since the plaintiff became involved with the Club, the catching pen gate operator has always lived locally and has never received any reimbursement or payment.

The lure

35. During a greyhound race, the greyhounds chase a lure made from a rubber sponge covered with material and a “tail” to resemble a rabbit. The rabbit is affixed to a metal bar that screws into a carriage, which propels the lure around the inside rail of the track. The lure carriage is propelled by a metal cable that runs along rollers and through pulleys positioned at regular intervals. It is powered by a Holden petrol motor. The lure, with the rabbit attached, extends less than a metre onto the track from the inside rail. The lure is controlled by a hare driver, who sits in a brick tower located within the centre of the track, about 50 metres from the catching pen gate. A member of the Club performs checks on the operation of the lure, cables, springs and pulleys approximately once a month. According to Mr Nairn, there have been no changes to the lure or its operation since he became president of the Club.

The catching pen gate

36. The catching pen gate is located near the start of the back straight. It is about 7.5 metres wide and 1.2 metres high and is attached by hinges and a metal cable to the outer fence of the track.

37. The purpose of a catching pen gate is to catch all the greyhounds after a race is complete. At the time of the accident, the catching pen gate was opened and closed manually. It shared its side with part of the outer fencing of the track, and another side with the triangular-shaped catching pen just outside the track. The catching pen gate was referred to as “open” when it was still forming the outer fence of the track, so that the track was not blocked off by the catching pen gate and the greyhounds could continue around the track.

38. The usual procedure when operating the catching pen gate was to keep it open during a race, and then close it once the race had finished and the lure had travelled past. When the catching pen gate was moved to the closed position, it was only initially moved far enough across the track to allow the lure to pass. The gate was usually moved from open to closed by the operator standing behind it and pushing it onto and across the track. Aside from these general guidelines, there was no set position or location where the catching pen operator stood when closing the gate, so long as it was far enough away from the inside running rail to allow the lure to pass.

39. A diagram showing the layout of the race track is reproduced here (Ex A). The plaintiff marked the diagram and added descriptors at various locations when giving evidence.

Ex A

The day of the accident

40. On Saturday, 25 April 2015, the plaintiff loaded three of his greyhounds into his dog float car attachment, before driving to the Wauchope track with his mother. They arrived at the track between 11.30 am and noon. While waiting for the races to begin, the plaintiff oversaw the dogs, including having them weighed.

41. There were 10 races scheduled for the day, each of which raced eight greyhounds. The plaintiff’s dogs were to participate in races two, four and seven. One of the plaintiff’s dogs, Famous Shoes, was a reserve in race two. Due to the plaintiff’s injury, race seven never took place.

42. Between races two and three, the plaintiff spoke to Mr Barker, a Committee Member of the Hastings River Greyhound Racing Club. The plaintiff and Mr Barker were casual acquaintances, as they had previously come across each other on race days at the racing track. Mr Barker asked the plaintiff to operate the catching pen gate, and the plaintiff agreed. It was the plaintiff’s evidence that he agreed because he wanted to help, but that he neither realised nor was warned of the potential dangers involved in what he had been asked to do.

43. When Mr Baker asked the plaintiff to “do the gate for race five”, the plaintiff understood that request to mean the following. The distance for race five was 384 metres, which was less than one full lap of the track. The track had two straights and two turns. The starting gate was in the middle of the back straight, but the plaintiff was not asked to assist with the gate there. He was asked to assist with the catching pen gate, which was located further down the first straight and before the first turn. The grandstand and finish line were on the home straight.

44. The plaintiff explained that it is helpful to visualise the track as a clock face (Aff, 8 November 2018 [69]). The starting gate is located at approximately a quarter past the hour. The catching pen gate is at twenty past the hour, and the finish line is at twenty to the hour. The dogs chased the lure which ran anti-clockwise and was driven by a lure drive operator positioned the other end of the track at the second turn.

45. The plaintiff’s second dog raced in race four. Before race five was due to start at 2.20 pm, he moved into position to operate the catching pen gate.

46. The plaintiff pleaded that prior to the date in question, he had never operated the catching pen gate during a race meeting, and only “two or three times” at race trainings. That pleading was the subject of some scrutiny. The plaintiff accepted that he told reporter David Brasch that he had “regularly worked on the catching pen gate during trial days” (T 90.11-17). When giving evidence, he suggested that what he told Mr Brasch might have been said in error and that he had “probably done it about four times in my life” (T 89.38). He conceded that operating the catching pen gate on trial days was precisely the same as on race days (T 85.17), both occurring at the same track, with the same lure and the same catching pen gate (T 77.39-78.06).

47. The plaintiff gave evidence that while Mr Barker asked him to carry out the task of operating the gate, he made no enquiries as to the plaintiff’s experience or expertise. The plaintiff was not given any instructions at any time prior to carrying out that task in race five.

48. The plaintiff stated that while he had attended a number of Club meetings and had observed what occurred when races were held, it was his understanding that the people who operated the gates were trained and paid staff. However, as explained by Mr Nairn earlier, the catching pen gate operator was not paid.

The accident

49. It is not controversial that the accident occurred in the way described in the plaintiff’s pleading framework set out earlier in this judgment. While operating the gate, the plaintiff became distracted when he saw a dog fall on the track. While his attention was on the dog, he remained in the path of the oncoming lure, which collided with his leg. In cross examination, the plaintiff conceded that there was nothing he could have done to assist the dog, as he could not leave his position manning the catching pen gate (T 93.46-49).

50. In his statement at [89], the plaintiff deposed that the impact of the lure was completely unexpected and came “out of the blue”. He felt a massive blow as the lure collided with his shin approximately 10-12 inches up his left leg.

51. Once the lure hit him, it jammed into the gate and came to a stop. The plaintiff had been standing when he was hit, but the impact knocked him off his feet and in his fall, his lower leg and foot ended up under the gate. He could see that his left foot had rotated approximately 300 degrees and was facing almost entirely the wrong way. Initially he felt no pain, but he knew at once that he had been seriously injured.

52. The plaintiff described his state of mind in the moments after impact as one of shock. He continued lying in the middle of the track, and soon began to feel pain. A number of people came running. They asked how he was. The plaintiff told them that he had been hit by the lure and was in pain. Someone said, “We’ve called the ambulance”. When the paramedics arrived, they placed him on a stretcher and drove him by ambulance to the emergency department at Port Macquarie Base Hospital.

Liability

53. These proceedings are governed by the provisions of the Civil Liability Act. In its defence, the defendant relies upon ss 5F, 5G, 5H, 5L, 5N, 5R and 5S of the Civil Liability Act.

54. Section 5L of the Civil Liability Act provides that there is no liability for harm suffered from the materialisation of an obvious risk of a dangerous recreational activity. Even if the plaintiff establishes duty, breach, and causation in relation to his claim in negligence, if s 5L applies, the defendant will have a complete defence: see Leeming JA, Goode v Angland [2017] NSWCA 311 (“Goode”) at [5] and [185]. The application of s 5L is therefore the logical starting point for consideration of the plaintiff’s claim: Goode at [185].

Whether the risk of harm was “obvious”

55. In determining the application of s 5L in this case, it is first necessary to consider whether the risk undertaken by the plaintiff was “obvious” under the Civil Liability Act. Sections 5F, 5G, and 5H. They read:

“5F Meaning of “obvious risk”

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks

(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

5H No proactive duty to warn of obvious risk

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

…”

56. In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 (“CG Maloney”), Santow JA observed at [173] that “[m]uch depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated”. In this case, the relevant risk to the plaintiff was of serious injury from being struck by the lure if standing in its path during a greyhound race.

57. The question for this Court is whether the risk was one which, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. That was the position at common law as stated in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126]-[129] (“Wyong Shire Council”); Mulligan v Coffs Harbour City Council [2004] NSWCA 247 per Tobias JA at [161], and continues to apply under the Civil Liability Act: see Tobias JA in Jaber v Rockdale City Council [2008] NSWCA 98 (“Jaber”).

58. “Obvious”, under its ordinary meaning and in s 5F(1), means something which is “clearly apparent or easily recognised or understood”: see Jaber at [35]. Whether a risk is obvious is a matter to be determined objectively.

59. Section 5F(2) states that an obvious risk includes one which is “common knowledge”. What is common will depend on the background and experience of a reasonable person in the position of the plaintiff, including his age, observations and previous involvement with the activity: Great Lakes Shire Council v Dederer [2006] NSWCA 101 at [152]; Doubleday v Kelly [2005] NSWCA 151 at [19]. In this case, the plaintiff was a person who had a decade of experience with greyhounds, attended races weekly and had on at least four prior occasions operated the same closing pen gate at the Wauchope greyhound track on trial days. As previously stated, there is no difference between operating the catching pen gate during training, at trials or on race days.

60. Further subsections demonstrate the width of the statutory conception of what may be considered “obvious”. Section 5F(3) states that a risk may be obvious even if it has a low probability of occurring. The plaintiff himself has alleged that the probability of the lure colliding with a person was “relatively high” (FASC [15(a)]). Section 5F(4) provides that a risk can be obvious even if it is not prominent or physically observable. In this case, the visibility of the lure was central to its purpose, irrespective of whether the plaintiff had his eyes trained elsewhere at the moment of impact.

61. As explained in further detail above, the activity of operating the catching pen gate ordinarily involved closing the gate to a point where there was a gap so as to allow the lure to pass, watching the lure, and standing one or two metres away from it until it passed before closing the gate completely (JCB 49, Aff, Steve Baker at [15] and [16]; JCB 44, Aff, Rex Nairn [25] and [26]). A significant part of the task involved pausing and watching the lure so as to make provision for its passing.

62. In oral submissions, counsel for the plaintiff conceded that the risk was obvious, and that the plaintiff had acknowledged “in hindsight” that the risk “was easily identifiable” (T 293.5-13).

63. The plaintiff himself, in describing the risk as obvious, stated that he was aware of it. In cross examination, he gave the following evidence (T 90.29-T 91.1-4):

“Q. Getting back to what happened, so you’re in a position where you’ve taken the gate out and you left a gap, and somehow for you to be struck you've stepped into the gap between the end of the gate and the rail, correct?

A. Yes.

Q. That was the gap that you’d specifically created to allow the lure to come through after the race, correct?

A. Yes.

Q. You were asked a question by Mr Austin about where you were looking and you did [drew] an arrow, but to be struck where you were, do you agree that you must have had, essentially you’d turned your back to the oncoming lure, well the direction the lure was coming from and the dogs were coming from?

A. Yes.

Q. So you knew that was the gap for the lure to go through?

A. Yes.

Q. You knew you shouldn’t stand there?

A. Yes.

Q. It was the only place that you could get struck by the lure?

A. Yes.

Q. But you ended up standing there anyway?

A. Yes.”

64. The authorities disagree as to the use which should be made of a plaintiff’s actual knowledge of the risk: see Annotated Civil Liability Act, Third Ed, Dominic Villa, p 187. Counsel for the defendant stated that the plaintiff’s admission reproduced above was a “knockout blow” (T 258.47). Perhaps the better view was expressed by Meagher JA in Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 at [32], where his Honour stated that a plaintiff’s actual knowledge was not relevant to the objective inquiry of whether the risk was obvious. However, the way the plaintiff acquired that knowledge may be relevant when determining whether the risk would have been obvious to a person in the plaintiff’s position.

65. Outside of informing “obviousness” under s 5F of the Civil Liability Act, the plaintiff’s admitted awareness of the risk is relevant under s 5G. Section 5G states that an injured person is presumed to be aware of an obvious risk. Where a defendant has raised the defence of s 5L, if the risk of harm is obvious, the onus of proof is reversed and the plaintiff is required to positively establish that he was not aware of it: see CG Maloney per Santow J at [101]. On the basis of the plaintiff’s evidence, the presumption of awareness in s 5G is confirmed.

66. In these circumstances, I am satisfied that the risk of suffering serious injury from being struck by the lure if standing in its path would have been obvious to a reasonable person in the position of the plaintiff.

67. For completeness, I note that the plaintiff made repeated reference to the fact that no one inquired into his experience of operating the gate, provided instructions or gave warnings about the danger. However, the defendant’s failure to warn the plaintiff is no bar to the defence in s 5L of the Civil Liability Act. Section 5H provides that where a risk is obvious, as I am satisfied that it was, the defendant does not owe a duty of care to a plaintiff to warn of it.

Whether operating the gate was a “recreational activity”

68. The defendant relied upon the operation of Part 1A, Division 5 (Recreational Activities) of the Civil Liability Act. Section 5J provides that Division 5 only has application if the plaintiff was engaged in “recreational activity”. It is under this division that the defendant has pleaded that pursuant to s 5L, it is not liable to the plaintiff as his injury resulted from the materialisation of an obvious risk of a dangerous recreational activity.

69. Sections 5K and 5L of the Civil Liability Act read:

“5K Definitions

In this Division:

dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

obvious risk has the same meaning as it has in Division 4.

recreational activity includes:

(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

“5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk.”

70. The defendant bears the onus of demonstrating that the relevant activity in s 5K fits into any of the above definitions: Fallas at [122]-[123] (Ipp and Tobias JJA agreeing).

The defendant’s submissions

71. The defendant referred primarily in its submissions to the judgment in Goode. In Goode, the Court of Appeal held that the evident purpose of the definition of “recreational activity” in s 5K is to capture activities which satisfy any or all of the stated character in (a), purpose in (b) or location in (c). Even then, the definition is not exhaustive: see Leeming JA at [190], with Beazley P at [7] and Meagher JA at [177] agreeing.

72. In Goode, Leeming JA stated at [205]:

“Section 5K contains an elaborate definition with elements which emphasise its generality, such as its three disjunctive limbs, each of which commences with ‘any’. It is difficult to see how part of the defined term could limit that generality”.

73. In her judgment, Beazley P considered several cases involving s 5K and then stated at [174]:

“These authorities might be seen to support the proposition that a ‘recreational activity’ within s 5K only applies to activities that are of a recreational character. This approach is arguably consistent with the provisions of Part l, Division 5 more generally. Section 5M relates to circumstances where a person engages in a recreational activity in which the defendant gave a risk warning to the plaintiff. Section 5N relates to contracts for services supplied to a person in relation to recreational activities. These provisions would appear to be directed to persons taking part in "recreational" activities, as that term is commonly understood, and not to professional sportspeople who are either in employment or otherwise engage in the sport professionally for reward. It also seems incongruous that an activity undertaken as one's profession, trade or livelihood would be subject to the same legislative exclusion as an activity undertaken for enjoyment, relaxation or leisure, or for that matter, physical fitness or the acquisition of skill. However, I am persuaded for the reasons given by Leeming JA that that is the proper construction of, and therefore the effect of ss 5K and 5L.”

74. The defendant also referred to the observation of Meagher JA, who stated at [178]:

“Recommendation 12 in the Ipp Committee’s Review of the Law of Negligence Final Report (2002) defined “recreational activity” as “an activity undertaken for the purposes of recreation, enjoyment or leisure which involves a significant degree of physical risk”. The Committee justified the distinctive treatment of recreational activities on the basis that “people who participate in such activities often do so voluntarily and wholly or predominantly for self-regarding reasons” (at [4.11]). Hence, the rule would not apply to “[m]embers of schools and other institutions ... required to engage in sporting and other recreational activities” or “people who participate in recreational activities in the course of their employment.” (at [4.12]). If Parliament had wished to maintain a distinction based on voluntariness, it could have retained the language in the Report. Instead, it introduced paras (a) and (c), which attach to the objective characteristics of an activity or place, rather than to the purpose of the relevant participant in undertaking the activity. That departure from the Committee’s recommendation must be taken to have broadened the scope of the defined expression.”

75. The defendant submitted that operating the catching pen gate at the greyhound races at the defendant’s track at Wauchope meets the criteria stated in every paragraph of the definition of “recreational activity”. Counsel for the defendant argued that the activity may firstly be considered to be “a sport” for the purposes of para (a) in light of the “inclusive” definition emphasised by Leeming JA (T 260.5; T 262.10); that operating the gate was an “activity engaged in for enjoyment, relaxation or leisure” for the purposes of para (b), as the plaintiff was operating the gate out of his love for the pursuit of greyhound racing (T 260.28-29); and finally, that the activity was clearly one “engaged in at a place…where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure” for the purposes of para (c). The defendant submitted that a greyhound track, whose members and participants gather out of the same love for the sport as that described by the plaintiff, is “undoubtedly” such a place (T 260.35).

The plaintiff’s submissions

76. The plaintiff submitted that operating the catching pen gate falls outside of the definition of “recreational activity” in s 5K.

77. According to the plaintiff, the activity could not fall within para (a) because operating the gate was not a sport, and did not involve physical exertion or skill: see Belna Pty Ltd v Irwin [2009] NSWCA 46 (“Belna”) per Ipp JA at [13].

78. Secondly, to satisfy para (b), the activity must have been one engaged in for the purpose or goal of enjoyment, relaxation or leisure: Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55 per Gleeson JA at [102]-[103], with Meagher & Basten JJA agreeing. The plaintiff argued that by operating the gate, he was undertaking an “official duty or function” on behalf of the event organiser. The purpose and goal of the activity was to pen the greyhounds and prevent them from continuing to chase the lure following the finish of the race. The fact that a volunteer of this kind might gain some sense of satisfaction or enjoyment in undertaking the activity was not determinative of its purpose: see Ipp JA in Belna at [14].

79. Thirdly, the plaintiff submitted that operating the gate does not satisfy para (c), as the words “pursuit or activity” must be contextualised by the adjective “recreational” in the chapeau of the definition in s 5K. The plaintiff referred to the Oxford Living Dictionary definition of “activity”, and argued that one of the definitions provided within, “a recreational pursuit or pastime”, was most applicable to this case. The plaintiff submitted that the operation of the catching pen gate during an organised race is clearly not a “pursuit”.

80. Rather, the plaintiff argued that by operating the gate, he was engaged in a “particular recreational service” for the benefit of those engaged in the broader recreational activity of greyhound racing. Reading the words “pursuit or activity” in para (c) without the context of the chapeau gives rise to an ambiguity. The plaintiff submitted that if the legislature intends to curtail a common law right, then the language must be clear and unambiguous: see Fallas per Basten JA at [117]. A construction that might result in potential unfairness and injustice should be avoided and a fair and just construction preferred: Fallas per Ipp JA at [44]. For these reasons, the plaintiff argued that an interpretation of para (c) that includes operating the gate in this case must be avoided.

81. The plaintiff further submitted that the defendant’s reliance on the decision of Goode was misplaced, as it attempted to draw an analogy between a jockey in that case and the plaintiff in this case.

82. While the defendant submitted that Goode is authority for the proposition that the definition of “recreational activity” also covers employees and volunteers engaged in performing tasks on behalf of recreational services providers, the plaintiff noted that in Goode, Leeming JA expressly raised doubt about the situation with regard to employees (and implicitly volunteers), and reserved his position at [207]-[208]. Leeming JA ending his consideration of the issue by stating at [208]:

“It is not necessary to express a concluded view on those issues in order to resolve this appeal, and I would not wish to be taken to be doing so in the absence of argument.”

83. According to the plaintiff, the word “activity” should be considered in context. When one speaks of “an activity”, one ordinarily speaks of a specific action that is “recreational or diversionary” in nature. The plaintiff argued that the word “any” in s 5K does not change the meaning of the word “activity”. For example, in Goode, Leeming JA at [191]-[192] considered that the word “any” precluded any distinction between types or classes of sport. When understood this way, the words “sport”, “pursuit” and “activity” found in s 5K are all synonyms. The plaintiff argued that this interpretation of the legislation does not cause tension with para (c), because that paragraph was written to create a “temporal connection” that captures other pursuits and activities not ordinarily associated with a specific sport, pursuit or activity carried on at that place. Paragraph (c) does not attempt to expand the ordinary meaning of words “pursuit” and “activity”.

84. Finally, the plaintiff submitted that the legislature, when addressing Part 1A of the Civil Liability Act in s 5N, clearly differentiated between “recreational services” supplied by providers, and “recreational activities” engaged in by participants. In light of that section, the performance of race duties, functions or “tasks” by employees or volunteers clearly form what are best described as “recreational services” provided by the defendant for the benefit of those engaged in the recreational activity of greyhound racing. The plaintiff, in operating the catching pen gate, was thus engaged in providing a particular recreational service on behalf of the defendant to those patrons engaged in a particular recreational activity.

85. In these circumstances, the plaintiff argued that it would be “capricious” to suggest that a person could at one time be providing a recreational service, and at the same time undertaking a recreational activity. For those reasons, s 5K cannot pick up duties, functions or tasks performed on behalf of the defendant in a recreational service. Thus, s 5K is not engaged.

86. I note here that I will consider the plaintiff’s submissions relating to s 5N in more detail later in this judgment. For present purposes, it is my view that s 5N has no application to the facts of this case.

Consideration

87. In Goode, Leeming JA said of the definition of recreational activity in s 5K at [190]:

“Recreational activity is defined inclusively, by reference to three limbs. Each limb is disjunctive. Each limb commences with the word “any”, but yet each operates in a different way. The first is directed to the characterisation of the activity, the second to the purpose of the participant, and the third to the location. The evident purpose is for the definition to capture activities if they satisfy any or all of [the three]. Even then, the definition is not exhaustive.”

88. The first limb, corresponding with para (a), requires an analysis of whether the activity “bears [the] particular character” of being a sport: see Leeming JA in Goode at [191]. In Belna, Ipp JA determined that the plaintiff’s gym regimen fit the dictionary definition of sport as “participation in activities involving physical exertion and skill” ([13]). The Court of Appeal in Goode also determined that a jockey was engaged in sport, although he was racing a horse, not operating a gate on the horse track.

89. In this case, closing the catching pen gate at the greyhound track required physical movement and an ability to follow a basic procedure. However, it is my view that it cannot be said to have involved “physical exertion and skill”. It therefore does not fall within that or any other meaning of the word “sport”, however inclusively defined.

90. The second limb of the definition of recreational activity, corresponding with para (b), looks to whether the purpose of the activity is “for enjoyment, relaxation or leisure”. In Balna, Ipp JA found that in addition to being a sport, the plaintiff’s gym regimen was captured by para (b). In his decision, his Honour took into account the fact that the plaintiff described her goals in a gym questionnaire as including “to enjoy life”. At [14], his Honour observed:

“She stated that her long-term goal was to lose weight and become fit, but this does not detract from the fact that she undertook the activities for enjoyment, relaxation and leisure. The loss of weight and achievement of physical fitness was only a by-product of the exercises that she intended to perform. By analogy, a person who runs marathons in the heat of summer does so for enjoyment, relaxation and leisure, even though she may hope to lose weight in the process.”

91. As in Balna, the plaintiff in this case participated in the activity in question for more than one stated purpose. The plaintiff submitted that he operated the gate “as an official duty” on behalf of the Club. His purpose, in that narrow sense, was to divert the dogs off the track to prevent them from catching and mauling the lure. More broadly, the plaintiff participated in community greyhound racing as a hobby and for personal enjoyment. He gave evidence that his occasional winnings and prestige in placing were not his primary goal, and that he “did not do it for the money”. The plaintiff stated that he agreed to operate the gate “as a gesture of good will” and because “he wanted to help out” the people and the club that he cared for. The entirety of the plaintiff’s evidence is that he undertook the activity of opening the gate for the enjoyment, relaxation or leisure involved in facilitating the relevant greyhound races. For these reasons, it is my view that the activity falls within para (b).

92. Even if I am wrong and the activity does not fall within para (b) of the definition of “recreational activity”, it is my view that it falls within para (c), which focuses on its location.

93. In addressing para (c), the plaintiff engaged in what I would describe as circular reasoning. The plaintiff submitted that when reading the phrase “any pursuit or activity”, the word “activity” should be understood by one of its dictionary definitions to mean “a recreational pursuit or pastime”, and that because operating the gate is not a “pursuit”, it is therefore not an “activity”. This understanding treats “activity” and “pursuit” as synonyms, despite their pairing as alternatives in paras (b) and (c). This cannot be correct.

94. The plaintiff further submitted that the words “pursuit”, “activity” and “sport” are all synonyms for the purpose of s 5K because they appear under the chapeau of “recreational activities”. However, “pursuit”, “activity” and “sport” are words which define “recreational activities”, not the other way around. As Leeming JA stated in Goode at [193]:

“…[A] relatively elaborate definition, such as that of recreational activity, should not be read so as to confine its operation into only one of its three limbs, leaving the balance inutile…. The purpose of the triply disjunctive definition is necessary to expand the scope of ‘recreational activities’ beyond those which have a recreational purpose; that is the point of the first and third limbs.”

95. The plaintiff also erroneously submitted that para (c) of the definition of recreational activity was written to create a “temporal connection that captures other pursuits and activities not ordinarily associated with a specific sport, activity or pursuit”. However, paragraph (c) clearly creates a proximal, not a temporal, connection.

96. Operating a catching pen gate is an activity. It occurs at a place where people ordinarily engage in greyhound racing, which is a pursuit or activity for enjoyment, relaxation or leisure. I cannot see any construction of para (c) which does not squarely capture operating the catching pen gate as a recreational activity for the purposes of s 5K. It is therefore, in my determination, a recreational activity probably under para (b), and certainly under para (c) of the legislative definition.

Significant risk of physical harm

97. Section 5L of the Civil Liability Act reads:

“5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk.”

98. In order to make out the s 5L defence, a defendant must establish four matters:

(i)   that the plaintiff was engaged in a “recreational activity” (s 5K);

(ii)   that there was an “obvious risk” of that activity, that is, a risk which in the circumstances would have been “obvious to a reasonable person in the position of the plaintiff” (s 5F);

(iii)   that the harm suffered by the plaintiff was the result of the materialisation of that obvious risk; and

(iv)   that the recreational activity was a “dangerous” one, that is, that it “involve[d] a significant risk of physical harm” (s 5K).

99. I have so far considered recreational activities and obvious risk, and came to the view that (i), (ii) and (iii) have been established.

100. The final matter to consider in the application of s 5L is (iv): whether operating the catching pen gate involved a “significant risk of physical harm” so as to be a “dangerous recreational activity” as defined by s 5K.

The defendant’s submissions

101. The defendant submitted that “significant risk of physical harm" is a composite phrase. The concepts “risk” and “harm” mutually inform each other, so that the risk of harm involved must be more than trivial, but need not be likely: see Falvo v Australian Oztag Sports Association [2006] NSWCA 17 (“Falvo”) at [28]-[31]; Jaber at [53]-[55].

102. There is an overlap, in the circumstances of this case, between submissions relating to “significant risk of harm” for the purposes of s 5K and those relating to “obvious risk” for the purposes of s 5F. This is not a case in which the factors which made the activity “dangerous” were different to the factors which suggested that the injury resulted from the materialisation of an obvious risk: see examples identified by Ipp JA in Fallas at [26]-[28].

103. The defendant referred to the statements of Albert Zarb (Ex F [14]) and Kane Heuston (Ex G, Tab 4 [10]), who stated, “It was an accident waiting to happen”. The plaintiff argued that their statements were evidence that the “significant risk of harm” in operating the catching pen gate was self-evident. However, Mr Nairn has been associated with the Wauchope greyhound track since 1997, has been president of the Club since 1999, and has operated a catching pen gate. He, like Mr Baker, stated that there is no formal training to perform the role and that it is very simple. Mr Nairn is not aware of any previous incidents in which any person, apart from the plaintiff, has been struck by the lure while operating the gate (JCB, Tab 5, [38]). Neither Mr Heuston nor Mr Zarb (Ex F) identified any previous injury to a catching pen gate operator, even though Kempsey and Taree also did not have gates with a flap at the time of the accident, and still do not.

104. The defendant further noted that at the time Mr Heuston made his statement, he believed that the plaintiff had not operated the catching pen gate before. Mr Zarb was under the same false impression when he made his statement. The defendant also referred to the evidence of the plaintiff’s own liability expert (Ex G, Tab 7 [3.4]).

105. According to the defendant, the fundamental problem for the plaintiff in this case is that the very circumstance which he alleged made the “risk of harm” foreseeable for the purposes of s 5B of the Civil Liability Act, and which he alleged required the defendant to take the identified precautions pursuant to s 5B(1)(c), also satisfies the requirements of obvious risk and significant risk of harm for the purposes of ss 5F and 5L. The risk which the plaintiff has asserted required action by the defendant was that the lure, made of a steel bar and travelling at approximately 73 kilometres per hour (FASC [6]), was likely to cause significant physical harm to any person with whom it collided.

106. The defendant also referred to the plaintiff’s own allegation that the probability of this risk materialising was “relatively high” (FASC [15(a)]). The defendant argued that the plaintiff cannot have it both ways. If the risk was such that the precautions were required, as the plaintiff attempts to prove elsewhere in relation to s 5B to succeed in his claim, then there was also a “significant risk of harm” for the purposes of s 5L.

107. In this case the risk of harm which made the activity dangerous was the same risk which came home, which was the risk of a person suffering serious injury if standing in the path of the lure.

The plaintiff’s submissions

108. The plaintiff submitted that the surrounding circumstances are relevant to a determination of whether the activity was dangerous. He submitted that the lure had the potential to cause serious, but not catastrophic, injury. However, the circumstances of operating the catching pen gate were relevant, including the way in which the activity was ordinarily performed, the actions or omissions of the defendant and the plaintiff's lack of training, experience and competence: see Fallas at [13] & Campbell at [113].

109. The plaintiff submitted that when performed by a trained and experienced operator, closing the catching pen gate was less dangerous than standing on a train platform. The plaintiff argued that given the lack of evidence on the subject, including the fact that none was adduced on behalf of the defendant, the only reasonable inference to draw is that the probability of the occurrence of the risk of harm was very low, and the possible nature of the harm was moderate.

Consideration

110. In Campbell v Hay [2014] NSWCA 129 (“Campbell”), Ward JA discussed the operation of the word “significant” in the definition of “dangerous recreational activity” at [116]:

“The definition of ‘dangerous recreational activity’ must be read as a whole (Ipp JA, with whom Hunt AJA and Adams J agreed, at [28] in Falvo). Regard must be had both as to the nature and degree of harm that might be suffered, on the one hand, and the likelihood of the risk materialising on the other (Falvo per Ipp JA at [28]). The expression constitutes one concept with the risk and harm mutually informing each other (such that the risk of physical harm may be significant if the risk is low but the potential harm is catastrophic or if the likelihood of both the occurrence and the harm is more than trivial; but the risk of physical harm may not be significant if, despite the potentially catastrophic nature of the harm, the risk is very slight) (Falvo per Ipp JA at [31]).”

111. Determining whether a recreational activity was dangerous involves interplay between both the extent of the potential harm, and the likelihood of it materialising. A “dangerous recreational activity” cannot mean a recreational activity where there is a significant risk of an insignificant injury, like a scratch or sprained ankle: see Falvo per Ipp JA at [31].

112. In Campbell, Ward JA went on to explain what will constitute a “significant risk” at [116]:

“‘Significant risk’ has been said to mean more than trivial and does not import an ‘undemanding’ test of foreseeability (Fallas per Ipp JA at [14]); it does not mean a risk that is likely to occur (Fallas per Ipp JA at [16]) but lays down a standard lying somewhere between a trivial risk and a risk likely to materialise (Fallas per Ipp JA at [18]); and as a general guide, it means a risk that is ‘not merely trivial, but generally speaking, one which has a real chance of materialising’ (Tobias JA at [90]–[91], this being the test his Honour applied later in Jaber v Rockdale City Council [2008] NSWCA 98 at [54]). An objective test is required in determining whether a recreational activity was dangerous (Fallas per Ipp JA at [13]; Basten JA at [136]).”

113. Where exactly the word “significant” falls along the spectrum between trivial and likely to materialise, described by Ipp JA in Fallas, will depend on the circumstances in each case.

114. In Fallas, Ipp JA noted at [33] that because, unlike in s 5F, the words “in the circumstances” and “a reasonable person in the position of the plaintiff” are excluded from s 5K, what is dangerous should be considered at a higher level of generality. However, his Honour considered that “time, place, competence, age, sobriety, equipment and even the weather” may render a recreational activity dangerous which would not be otherwise. For example, Ipp JA stated that a certain activity may be safe if the participant is sober, but dangerous to one who is intoxicated ([36]). I will return to the issue of intoxication in more detail later in this judgment, but for the present purposes, I note that I have made a finding that the plaintiff was not intoxicated.

115. So far as the significance of the risk in this case in concerned, the plaintiff himself alleged that the probability of the risk materialising was “not insignificant” and “relatively high” (FASC [13]; [15(a)]). The lure operated mechanically on a track. Its path was predictable and certain. In operating the closing pen gate, the plaintiff was required as a central aspect of the procedure to leave space for the lure to pass so as to avoid a collision. I am satisfied that the likelihood that a person in the position of the plaintiff would suffer injury if standing in the path of the lure while operating the closing pen gate was a risk which had a real chance of materialising.

116. So far as the significance of the potential injury is concerned, the lure was made of a steel bar travelling mechanically at roughly 60 to 73 kilometres per hour. The potential injury suffered by a person standing in its path while operating the catching pen gate was clearly significant.

117. I am satisfied that operating the catching pen gate at the greyhound track involved significant risk of physical harm, and was therefore a dangerous recreational activity for the purposes of s 5L of the Civil Liability Act. The defence is made out. The defendant is therefore not liable to the plaintiff for the harm suffered as a result of the materialisation of the obvious risk of colliding with the lure. There will be judgment in favour of the defendant against the plaintiff.

118. Despite the application of s 5L, I will for completeness consider the remaining aspects of the plaintiff’s claim in negligence.

119. Briefly I will address the plaintiff’s submissions concerning s 5N. Section 5N reads:

“5N Waiver of contractual duty of care for recreational activities

(1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

(2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.

(3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

(4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity.

(5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement.

(6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.”

120. As set out earlier, the plaintiff submitted that by operating the catching pen gate, he was engaged in a “recreational service” as defined under s 5N, and therefore could not also be engaged in a recreational activity without a “capricious” result. However, s 5N concerns contractual duties of care. It does not apply in a situation, as in this case, where a plaintiff merely volunteers to help out a local greyhound racing club by closing a gate during a race.

Intoxication

121. Section 50 of the Civil Liability Act reads:

“50 No recovery where person intoxicated

(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.

(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.

(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.

(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.”

122. The defendant acknowledged that it bears the onus of demonstrating that the plaintiff was intoxicated for the purpose of s 50: see Luca v Zupanov [2013] WADC 40 at [48].

123. The defendant submitted that when determining whether the plaintiff was intoxicated, any observations made by other people can be disregarded. The plaintiff was a long-term, heavy drinker. He would have been unlikely to display what might otherwise be regarded as the “typical” signs of a person under the influence of alcohol. Mr Heuston (Tab 4 [16]) did not smell alcohol on the plaintiff, even though he had consumed it. The plaintiff’s mother was unaware of his normal drinking pattern.

124. The plaintiff submitted that there is no reasonable ground upon provable facts to justify the allegation that he was under the influence of alcohol at the time of his injury. The hospital records of a “past history” of 15-20 cigarettes and +/- 8 alcohol drinks a day do not provide evidence of intoxication on the day of the accident.

125. Counsel for the plaintiff referred to Russell v Edwards [2006] NSWCA 19 (“Russell”), in which the Court of Appeal held at [40] (per Ipp JA, with Beazley JA and Hunt AJA agreeing) that the word “cause” in s 50 should be construed as meaning “direct cause”, and that the direct cause is not the first or the last cause. The determination of what caused the injury involves a common-sense approach: see Russell at [31].

126. The plaintiff submitted that the “direct cause” of the injury was not intoxication, but rather the defendant’s egregious want of care. The plaintiff was asked to volunteer to operate the catching pen gate during an organised event. By requesting his help, the defendant placed him in a position of peril which led to the injury.

Evidence

127. The plaintiff says that he had not consumed any alcohol prior to arriving at the racing track. At some time after he arrived, he purchased and consumed a 375 ml can of pre-mixed Southern Comfort and Coke. Shortly before race five, he had purchased a second can and consumed approximately half of it before he went to operate the gate. He says that he was not intoxicated, felt perfectly fine and was clear-headed and alert.

128. The plaintiff’s mother accompanied him to the greyhound races. She helped load the car, which contained no alcohol. She observed that in the period between their arrival and the accident, the plaintiff had a can of Southern Comfort and Coke in his hand. To the best of her knowledge, from the time they arrived at the track until the accident, he consumed one full can of Southern Comfort and Coke and had purchased a second, from which he only drank a small amount (Ex G(i), Tab 3 [22]).

129. After the accident occurred, Mr Heuston went to assist the plaintiff. At times Mr Heuston was standing or kneeling next to the plaintiff. The plaintiff was not slurring his words, nor did he smell of alcohol. Mr Heuston was also there with the plaintiff as he was being treated by ambulance officers. He recalls that the plaintiff seemed alert while talking to them and was also not slurring his words at that time (Ex G(i), Tab 4 [16]).

Consideration

130. I accept that the plaintiff drank one can and a little of a second of Southern Comfort and Coke after he arrived at the race track between 11.30 and noon, and before he manned the catching pen gate at about 2.15 pm (T 188.37-46).

131. Section 50(1) of the Civil Liability Act requires a plaintiff to have been “intoxicated to the extent that [his] capacity to exercise reasonable care and skill was impaired.” The question of whether or not a person is sufficiently incapacitated will depend on the particular circumstances of the case. As Allsop P observed in Amanda’s On the Edge Pty Ltd v Dries [2011] 358 NSWCA at [36]:

“Operating machinery, driving a car or flying a plane may be tasks where very little alcohol would be required for the person’s capacity to exercise skill and care to be impaired.”

132. In this case, the relevant care and skill was that required to operate the catching pen gate. The task was one which required adherence to a basic procedure, but not fine motor skills or analysis.

133. The onus is on the defendant to prove not just that the plaintiff was affected by alcohol, but that his level of impairment was such as to prevent him from exercising reasonable care and skill in operating the gate: see Wells v Council of the City of Orange (No 2) [2017] NSWSC 510. To this end the defendant has relied upon a pharmacological report of Professor MacDonald James Christie dated 4 March 2018. It proceeds on assumptions that have not been made out and is of little relevance. The defence to liability under s 50 therefore fails.

Volunteers

134. The defendant submitted that it is not liable for the alleged negligence because of the operation of ss 60 and 61 of the Civil Liability Act.

135. Sections 60 and 61:

“60 Definitions

(1) In this Part:

community organisation means any of the following that organises the doing of community work by volunteers and that is capable of being sued for damages in civil proceedings:

(a) a body corporate,

…

community work means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, educational or cultural purpose, and includes work declared by the regulations to be community work but does not include work declared by the regulations not to be community work.

organised includes directed or supervised.

volunteer means a person who does community work on a voluntary basis.

work includes any activity.

(2) For the purposes of this Part:

…

(b) community work for which a person receives remuneration by way of reimbursement of the person’s reasonable expenses in doing the work, or within limits prescribed by the regulations, is to be regarded as work done on a voluntary basis.

(3) A regulation declaring work to be community work may be expressed to extend to apply in respect of civil liability for an act or omission occurring before the commencement of the regulation, except in a case in which proceedings to recover damages for the act or omission were commenced in a court before that commencement.

61 Protection of volunteers

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:

(a) organised by a community organisation, or

(b) as an office holder of a community organisation.”

The defendant’s submissions

136. The defendant submitted that it is a community organisation, as all relevant personnel are volunteers and unpaid (Ex G, Tab 5, Aff Rex Nairn at [10]), and as organising and conducting the greyhound races is community work.

137. The defendant also argued that there can be no suggestion of any absence of good faith, notwithstanding any alleged negligence, in any of the conduct of the defendant on which the plaintiff relies.

138. The defendant further submitted that it is a “person” doing community work, and is therefore not liable to the plaintiff.

The plaintiff’s submissions

139. Counsel for the plaintiff submitted that the defendant has not adduced any evidence that the Club was a community organisation, conducting community work “that is not for financial gain” within the meaning of s 60 of the Civil Liability Act. Further, counsel for the plaintiff submitted that in all events, s 61 applies to the direct negligence of a volunteer, not the direct (as opposed to vicarious) negligence of a community organisation. For that reason, s 61 is not picked up in the circumstances of this case. In Echin v Southern Tablelands Gliding Club [2013] NSWSC 516 (“Echin”) at [98]-[105] Davies J stated:

“98 The Plaintiff does not dispute that the relevant persons from the Club about whom he makes some form of complaint were volunteers within the meaning of s 60 nor that they had the protection provided by s 61. The issue is whether the Defendant obtains a similar benefit by the operation of s 3C.

99 The Defendant accepts that the protection in s 3C is only given in respect of vicarious liability which the Defendant may have. In relation to the particulars of negligence the Defendant accepts that if particulars (a), (f), (g) or (h) are made out any liability the Club would have from those matters would be a direct liability. The Defendant says, however, that any liability the Club has from the Plaintiff successfully demonstrating negligence by virtue of particulars (b) to (e) is strictly a vicarious liability.

100 The Defendant's concession in relation to particulars (a), (f), (g) and (h) is correct. If liability for any of those matters was established the Club would not have the benefit of s 3C. In relation to the remaining particulars the Defendant submitted that any breaches in those ways were breaches by Mr Gamble because he was the Plaintiff's instructor and, to the extent any of those matters is made out, Mr Gamble is the person at fault. The Defendant then submitted that Mr Gamble was the Club's agent for the purpose of training the Plaintiff and that agency resulted in the Club having a vicarious liability for his acts and omissions in that regard.

101 Reliance was placed by the Defendant on what was said by Dixon J (as his Honour then was) in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 at 48-50. Whilst the Defendant accepted that Mr Gamble and the others were not employees or even office-bearers of the Club it was submitted that their relationship to the Club could be analogously compared to the position of the contractors in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21.

102 Both in written and oral submissions the Defendant said that it was vicariously liable for Mr Gamble's acts and omissions in relation to the training of the Plaintiff. Indeed, in oral submissions Counsel for the Defendant said that it was admitted on the pleadings that the Defendant was so liable although where that admission was to be found is not apparent to me.

103 Apart from this admission I would not have thought that the Defendant was vicariously liable for Mr Gamble in his role as an instructor. An examination of the matters thought persuasive by the joint judgment in Hollis at [48] to [57] finds little or no parallel in the little that the evidence disclosed about the arrangements between the Defendant and its instructors. What, however, seems tolerably clear is the lack of control the Defendant had over the instructors when they were exercising their skills and expertise as instructors. Whilst the matter of control is not the key enquiry it remains an important consideration in assessing the relationship: Hollis at [43] to [45], [49] and [73].

104 If the Defendant had some non-delegable duty of care to the Plaintiff which was breached s 5Q would operate so that the Defendant's liability would be regarded as vicarious. In those circumstances s 3C would, in conjunction with s 61, mean that the Defendant had no liability. However, it is difficult to see that the Defendant owed any such non-delegable duty: Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 at [248]; Kondis v State Transport Authority(1984) 154 CLR 672 at 679-687.

105 Whichever way the matter is viewed it seems to me that the Defendant does not have a liability for the matters in particulars (b) to (e). If the Defendant has a truly vicarious liability for Mr Gamble s 3C brings about the result that it will have the same immunity as the relevant person for whom it is vicariously liable. The relevant person here (Mr Gamble) has no such liability by virtue of s 61. If the Defendant is not vicariously liable for Mr Gamble (as I am inclined to think) then it has no liability at all in respect of those particulars.”

Consideration

140. Section 61 of the Civil Liability Act states that a volunteer does not incur personal civil liability in respect of any act or omission when doing community work either organised by a community organisation, or as an office holder of a community organisation. The onus is on the defendant to make out the defence.

141. Under s 60, a “community organisation” is defined to include a body corporate that organises the doing of community work by volunteers. “Community work” is further defined as work that is not done for private financial gain, and includes work done for, amongst other things, a “sporting” purpose. The defendant submitted that it is a “community organisation” for the purposes of the section because “all relevant personnel” are unpaid volunteers. Mr Nairn, in his affidavit sworn 6 March 2019, stated that the lure driver, starter, catching pen gate operator and return gate operator are not paid for performing those roles (Ex G, Tab 5, Aff Rex Nairn at [8], [10]). The defendant did not adduce evidence more generally as to whether the Club operates for private financial gain.

Further operation

280. On 22 November 2018, Associate Professor Pepper, orthopaedic surgeon, performed an arthroscopy of the plaintiff’s left knee and removed the endobutton on his left ankle (Ex H, operation report).

Credibility

281. As stated earlier, a number of heads of damages have been agreed. What is left in dispute is non-economic loss, as well as past and future economic loss.

282. Before I assess these heads of damages, it is appropriate that I record my findings in relation to the plaintiff’s credibility. I carefully observed the plaintiff while he was giving evidence and being cross examined. Earlier in this judgment, I set out the inconsistencies in the plaintiff’s evidence about whether he had previously operated the catching pen gate. He stated that he had not operated the gate before on a race day, but then conceded that he told journalist David Brasch that he had “regularly worked on the catching pen gate during trial days” (T 90.11-17). He clarified under cross examination that he had “probably done it about four times in my life” (T 89.38). Ultimately he conceded that operating the catching pen gate on trial days was precisely the same as on race day (T 85.17), with no material difference between the procedure required of him (T 77.39-78.06).

283. In his affidavit, the plaintiff deposed that after the accident, he was anxious about attending the greyhound races and could not drive to them. I accept he may have been anxious at first, but he managed to largely overcome that anxiety as was able to attend a greyhound race meeting shortly after he was discharged from hospital, and has since been able to attend greyhound meetings and drive to the races by himself on a regular basis.

284. The plaintiff was certain that he could not undertake any employment, but his opinion does not accord with the medical and rehabilitation evidence. Dr Maxwell is of the opinion that the plaintiff can work as a carpet layer without restrictions, and would be able to perform both sedentary and non-sedentary jobs. Associate Professor Hope said that it is impossible for the plaintiff to return to carpet laying, based off the plaintiff’s self-professed inability to squat, kneel and lift. However, Associate Professor Hope said that the plaintiff could perform duties that required no squatting and kneeling, and lifting under five kilograms.

285. The plaintiff’s evidence has left me, reluctantly, with the overall impression that he was exaggerating his disabilities and portraying himself as being more incapacitated than he really is. I bear that impression in mind when I assess the plaintiff’s damages.

Non-economic loss

286. The plaintiff claims non-economic loss at 50% of a most extreme case, which equates to $317,500. The defendant submitted that the plaintiff’s non-economic loss should be assessed at between 20% and 30% of a most extreme case. The defendant further submitted that in all the circumstances, factoring in doubts concerning the real extent of any past and ongoing pain, restriction and incapacity, the plaintiff’s condition should be assessed at 25% of a most extreme case.

Consideration

287. The plaintiff is currently 47 years of age. As a result of the accident, the plaintiff sustained tibial and fibula factures to his left leg and a soft tissue injury to the back of his left calf. He has had to undergo a number of operations on his left ankle. There is a possibility that he will need to undergo a further fusion surgery. In addition to the pain he experienced after the surgeries in hospital, he suffers from ongoing pain in his ankle and leg. Since the accident, he has continued to take painkillers every day.

288. In addition to his pain, he had been left with significant scarring to his left leg. I inspected the plaintiff’s leg and the scarring is deep, obvious and unsightly. Medically, the scar has been described as follows.

Scarring

289. Ms Anna Hughan, an occupational therapist, described the plaintiff’s scar presentation in her report dated 24 August 2017 (Ex G(i) p 237) as follows:

“Mr Carter's calf scar … was assessed using the parameters of the Manchester Scar Scale (excluding the visual analogue component). I would describe Mr Carter’s scar as obviously mismatched in colour, shiny, indented, hard in texture, indistinct margins, greater than 5cm and single in number resulting in an overall score of 17 out of 21. Based on the length of time since the injury, the scar is likely to now be mature, and therapeutic intervention is not indicated. However, it was noted to be dry and cracked in places and he would benefit from education and ongoing moisturisation to maintain oil balance and ensure optimal mobility. …”

290. Dr Hopcroft, an orthopaedic surgeon, describes the scarring in his report dated 8 September 2015 (Ex G(i) p 81) as follows:

“He has gross scarring of the skin of his left leg, both from the skin harvesting site of his proximal calf, and a very large 10cm diameter round area where split skin grafting has partially taken, with the rest of the healing by secondary fibrosis, with that area adherent to the deep tissue musculature, with some altered sensation, both of the graft site and distal to it. He has multiple scarring on the front of his left tibia, one of the sites of intramedullary rod insertion in the patella, scars for the application of the cross screws, and a scar on his lower shin.”

291. Finally, Associate Professor Hope described the scarring on the plaintiff’s left leg in his report dated 9 January 2018 as containing an anterior knee healed 10cm keloid scar, a 2.5cm keloid medial titial scar, and a 12 x 10 cm posterior skin graft with soft tissue defect. This scarring is a significant factor in assessing non-economic loss.

292. After the accident, the plaintiff was confined to a wheelchair for three months and then to three further months of crutches (T 143.31-36). I accept that he has to rely on his mother for some domestic assistance, but he is not as incapacitated as he portrayed himself in his statement. The plaintiff says he is upset and holds a strong view that he cannot undertake any employment and is no longer financially independent. He became depressed, and has had thoughts of suicide, although I note that these thoughts have seemingly abated and that he is prepared to consult a psychiatrist. He is capable of cooking a meal, and is independent with his personal hygiene and general tasks of everyday living. I accept that he cannot perform some domestic tasks that involve heavy work, both immediately after his accident and into the future. I note that the allowances for past and future care have been agreed.

293. Prior to the accident, he had two hobbies, fishing and attending the greyhound races. While he says that he can no longer go fishing, he has still been able to maintain his interest in the greyhound races, which he attends on a regular basis. He can drive, albeit he must stop occasionally to rest his left leg. He is capable of some form of employment, although perhaps not his previous trade of carpet laying.

294. Taking all of the above into account, had the plaintiff been successful on liability, I would have assessed his non-economic loss at 30% of a most extreme case. This equates to $146,000.

Economic loss

Past and future out of pocket expenses

295. Past of pocket expenses have been agreed at $5,000.

Future out of pocket expenses

296. The parties have agreed that future out of pocket expenses are $40,000.

Future operation

297. The parties have also agreed that should the plaintiff be required to undergo an ankle fusion surgery on his left ankle, it will cost $20,000. Dr Maxwell in his report dated 7 September 2017 did not consider that the plaintiff needed any future treatment. It is possible that the plaintiff will need an ankle fusion. Associate Professor Hope gave the opinion that an ankle fusion is required, on the basis of the clinical diagnosis of ankle osteoarthritis with hind foot misalignment. He estimated that the costs of the surgery would be $20,000. To allow for the possibility that the plaintiff will have to undergo an ankle fusion, I allow the sum of $9,000.

Past loss of earning capacity

298. Section 12 of the Civil Liability Act provides for damages for past or future economic loss. It reads:

“12 Damages for past or future economic loss—maximum for loss of earnings etc

(1) This section applies to an award of damages:

(a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or

(b) for future economic loss due to the deprivation or impairment of earning capacity, or

(c) for the loss of expectation of financial support.

…”

299. The parties have agreed that if the plaintiff had been totally incapacitated since the accident, he would be arithmetically entitled to the amount of $144,000 for past economic loss (my emphasis). However, the defendant submitted that the plaintiff has not been totally incapacitated since the date of the accident.

300. At the time of the injury the plaintiff was employed as contract carpet layer, earning approximately $750 net per week.

The plaintiff’s submissions

301. The plaintiff submitted that there cannot be any issue that since the accident, the plaintiff has been unfit to perform his carpet laying duties, and will remain unfit for the balance of his working life. The plaintiff has limited education, has no technical training, poor English language skills and extremely limited transferable skills. Given his circumstances, the plaintiff’s ability to earn on the open labour market has been severely diminished as a result of his disabilities arising from the injury.

302. The onus is on the defendant to prove that the plaintiff can exploit any residual “working”, as opposed to earning, capacity: see South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72]-[76].

303. The defendant has adduced no evidence to establish that there are any jobs open to the plaintiff which could accommodate her needs. In Nominal Defendant v Livaja [2011] NSWCA 121, Basten JA stated at [65]:

“[65] There are distinctions to be drawn between injury and impairment or disability consequent upon injury, and between impairment or disability and diminished earning capacity. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation.”

304. In this case, the most likely future circumstances are that but for injury, the plaintiff would have continued working as a carpet layer earning $750 net per week, with regular rises from the date of injury to reflect average wage increases for males in New South Wales, for the balance of his working life. He has some residual capacity for work at $200 net per week.

305. The plaintiff argued that the most likely future circumstances now are that the plaintiff will remain unemployed for the balance of his working life as a result of his injuries and disabilities.

The joint report dated 5 March 2019

306. On 5 March 2019, psychologist Mr Kieran Fraser and physiotherapists Ms Annie Hartley and Ms Gillian Stewart held a conclave and prepared a joint report.

307. Ms Stewart is of the opinion that the plaintiff can perform sedentary and selected light roles with the task to be performed at optimal height, for example, between knee and chest height. She stated that the plaintiff’s weight bearing tasks, walking and driving should be limited to short periods only, with driving and walking not to exceed more than 30 minutes per trip.

308. Ms Hartley and Mr Fraser agreed that given his current skills, qualifications and work history, the plaintiff would be suitable for unskilled or semi-skilled roles that involve clear, simple tasks.

309. Mr Fraser did not recommend that the plaintiff perform administrative roles as the plaintiff has limited computer skills, no Microsoft Office skills and only basic typing skills. Mr Fraser was of the view that while the plaintiff could theoretically perform administrative tasks with his physical limitations, his skills and qualifications were such that he would find it difficult to competitively enter the job market within the new few years.

310. The experts agreed that the plaintiff could perform work in the following roles: as a surveillance monitor, ticket seller, car park attendant, product assembler, process worker, and sales assistant in selected roles.

311. All experts agreed that they were unable to comment in full on the accessibility or availability of such work in the Port Macquarie area, as this would require a Labour Market Analysis.

312. Mr Fraser provided some anecdotal observations and noted that Port Macquarie is a heavily tourism-based economy that has industrial, retail and medical/health sectors, but stated he was unable to provide any more specific comments beyond.

313. All experts agreed that due to Ms Stewart's recommended driving limitations, the plaintiff was unable to access the nearby towns of Taree and Coffs Harbour for work. They agreed that given the difficulty he may encounter in sourcing work due to his physical limitations, current skills, and four-year period of unemployment, the plaintiff would benefit from occupational rehabilitation and support in his return to work.

Consideration

314. The plaintiff is certain that he cannot undertake any employment, but that view does not accord with the medical and rehabilitation evidence. As previously stated, Dr Maxwell is of the opinion that the plaintiff can work as a carpet layer without restrictions and would be able to perform both sedentary and non-sedentary jobs. Associate Professor Hope stated that it is impossible for the plaintiff to return to carpet laying, as he had described his inability to squat, kneel and lift. However, the plaintiff could perform duties that required no squatting, no kneeling and lifting under five kilograms. I accept and prefer the opinion of Associate Professor Hope to that of Dr Maxwell as it accords more with the physiotherapists’ and psychologists’ joint report.

315. I accept that due to the injuries he suffered to his left leg, the plaintiff is no longer able to work as a carpet layer. Had he not suffered the injuries to his left leg, I am satisfied on the balance of probabilities that he would have continued in his business as a carpet layer until he retired. I also accept that throughout his life he has largely been employed in manual work.

316. After the accident, he was confined to a wheelchair for three months and then to crutches for a further three months (T 143.31-36). I accept that the plaintiff was totally unfit for work during this period. He could not drive for 12 months after the accident.

317. There is no evidence that the plaintiff has make a conscious attempt to find work, because he says that his general practitioner told him he was unfit to return to work. As he explained (T 135.26):

“Q. Do you seriously believe that? That is, that it’s up to your doctor to tell you whether or not you might be able to do [a] thing?

A. Well, you need a certificate to return back to work.”

318. While the plaintiff says that he feels frustrated because he is not the type of person to do nothing, he actually has not attempted any work at all after he sustained the injury. With regards to the joint experts’ recommendations, the plaintiff does not think that he can work as an alarm security or surveillance monitor, on the basis that those roles involve getting in and out of the car all of the time and walking around. He says he has done that sort of work before. He says that he cannot walk around for any longer than 40 minutes. He also says he cannot be employed as a ticket seller. He says that he also did that type of work before, and it involves a lot of sitting down and nowhere to stand up. He says cannot be a car park attendant, as he would have to walk around. He has also done that work before, albeit about 20-25 years ago.

319. When giving evidence, the plaintiff confirmed that ticket selling is also a component of security guard work. Counsel for the defendant asked the plaintiff to assume that the role was not part of security work, but just a role selling tickets, making reservations for services such as travel, admission to sporting and entertainment venues, perhaps in a call centre. When asked whether he might be capable of that sort of work, the plaintiff answered that he did not believe that he could do it because it is still all sitting down. The plaintiff said that he would not be able to do work that involved receiving customers’ request and accepting payments and collecting fares. With regards to work in traffic control, the plaintiff expressed concerns that he would be incapable because “the stop and go blokes don’t sit down. They are controlling the traffic” (T 138.36-50; T 139.1-32).

320. I take into account that the Port Macquarie area is a heavily tourism-based economy that has industrial, retail and medical/health sectors. I also take into account that for many years the plaintiff ran his own business.

321. The only thing the plaintiff says he knows how to do on a computer is “nominate his dogs”. He also says that he registered for TAFE courses last year in an attempt to improve his computer skills, but they were too full and he could not enrol (T 141.30-35). He has not currently applied for a computer course because he does not have the money to pay for it (T 142.6-7). It is my view that the plaintiff is able to acquire basic computer skills, provided he undergoes suitable training in this area.

322. Later in cross examination, the plaintiff said that he had applied for warehouse jobs but admitted that he did not tell the physiotherapists and the occupational therapists about those applications when they he asked about his working capacity. He said he has told no one (T 133). Overall, his position is that he believes he cannot do any work at all.

323. Prior to the accident, the plaintiff was earning approximately $750 net per week. It is my view the plaintiff was totally incapacitated for 12 months after the accident. After that, he has had a residual earning capacity of $200 net per week. The plaintiff’s past loss of earning capacity is calculated as follows:

1. From 25 April 2015 to 30 June 2015: 10 weeks at $690/week = $6,900;

2. From 30 June 2015 to 25 April 2016: 42 weeks at $703/week = $29,526;

3. From 26 April 2016 to 30 June 2016: 5 weeks at $503/week = $2,515;

4. 1 July 2016 to 30 June 2017: 52 weeks at $517/week = $26,884;

5. 1 July 2017 to 30 June 2018: 52 weeks at $531/week = $27,612; and

6. 1 July 2018 to 30 June 2019: 52 weeks at $550/week = $28,600.

324. These calculations of past loss of earning capacity are to be checked by the parties.

Future loss of earning capacity

325. The parties have agreed that if the plaintiff is totally incapacitated from working, future economic loss is to be calculated at $750 net per week. 750 x 666.4 x 85% = $424,830. In final oral submissions, counsel for the plaintiff conceded that the plaintiff has some residual earning capacity in the order of $20 per hour and no more than 10 hours per week (T 298.1-2).

326. For the reasons given under past loss of earning capacity, the plaintiff’s future loss of earning capacity is $750 per week less $200 residual earning capacity. This equates to $550 net per week. $550 x 666.4 x 85% = $311,542.

327. These calculations of future loss of earning capacity are also to be checked by the parties.

Past and future superannuation

328. It is agreed that as the plaintiff was a contractor, he is not entitled to either past or future superannuation.

Past domestic care and assistance

329. The parties have agreed on past domestic care and assistance in the sum of $30,000.

Future domestic care and assistance

330. The parties have agreed on future domestic care and assistance in the sum of $50,000.

Result

331. The result is that the plaintiff’s claim on liability fails. There is judgment for the defendant.

Costs

Costs are discretionary. Costs follow the event. The plaintiff has been unsuccessful in his claim. The plaintiff is to pay the defendant’s costs.

The Court orders:

(1)   I enter judgment for the defendant.

(2)   The plaintiff is to pay the defendant’s costs.

**********

Decision last updated: 27 June 2019