Cooper bht Cooper v Australian Karting Association Limited t/as Karting Australia
[2020] NSWSC 664
•28 May 2020
Supreme Court
New South Wales
Medium Neutral Citation: Cooper bht Cooper v Australian Karting Association Limited t/as Karting Australia [2020] NSWSC 664 Hearing dates: 28 May 2020 Date of orders: 28 May 2020 Decision date: 28 May 2020 Jurisdiction: Common Law Before: Harrison AsJ Decision: By consent the Court notes that:
(1) This matter has settled as between the plaintiff and the defendants in accordance with the terms of a consent judgment dated 28 May 2020 and signed by the legal representatives of the parties.
The Court:
(2) Approves the settlement pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW).
By consent the Court orders that:
(3) In accordance with s 77 of the Civil Procedure 2005 (NSW) that the balance of the settlement sum, after deductions, be paid into Court until further order.
By consent the Court further notes:
(4) Paragraphs 2, 3, 5, 6 and 7 of the consent judgment.
(5) The confidential opinions made to this Court are to remain confidential.Catchwords: PRACTICE AND PROCEDURE – Settlement approval – Personal injury – Where the plaintiff was injured in a go kart accident Legislation Cited: Civil Liability Act 2002 (NSW), ss 5F, 5L
Civil Liability Act 2003 (Qld), ss 13, 19Cases Cited: Goode v Angland [2017] NSWCA 311 Category: Procedural and other rulings Parties: Gary Cooper bht Aisha Cooper (Plaintiff)
Australian Karting Association Limited t/as Karting Australia (First Defendant)
Warwick Karting Club Inc (Second Defendant)Representation: Counsel:
Solicitors:
D Toomey SC with J Ryan (Plaintiff)
J Deegan (First & Second Defendants)
Longton Legal (Plaintiff)
Wotton + Kearney (First & Second Defendants)
File Number(s): 2018/160965 Publication restriction: Nil
Judgment
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HER HONOUR: This is an application for approval of a settlement of proceedings commenced by Gary Cooper by his tutor Aisha Cooper in relation to injuries he sustained in an accident. The plaintiff relies upon the affidavit of Jonathon Coyle dated 18 May 2020.
Background
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The plaintiff was born in July 1945 and is currently aged 74 years. He is retired, and prior to the accident, enjoyed attending and photographing go kart races with his family. He is married with a supportive wife, three grown children and grandchildren.
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On 27 February 2016, the plaintiff attended Warwick Kart Club in Queensland to watch a go kart race and take photographs along with his son, a professional photographer. Just prior to the accident, the plaintiff was standing behind a metal and wire gate and taking photographs of a race. There was a collision between two karts. One kart careered off the track and struck the gate, which swung violently into the plaintiff, sending him airborne. He landed heavily on the track and struck his head.
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The plaintiff sustained a severe traumatic brain injury and other injuries from the accident. He now requires daily ongoing supervision and care from his wife and other family members.
The proceedings
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On 23 May 2018, these proceedings were commenced in this Court. As the cause of action arose in Queensland, the proceedings are governed by the Civil Liability Act 2003 (Qld). This Act is similar, but not identical to the provisions of the equivalent legislation in New South Wales.
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Liability is hotly contested by both defendants. The defendants raise defences under ss 13 and 19 of the Civil Liability Act (Qld). They read:
“13 Meaning of obvious risk
(1) For 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.
(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.
Examples for subsection (5)-
1 A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.
2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.
…
19 No liability for personal injury suffered from obvious risks of dangerous recreational activities
(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.
(2) This section applies whether or not the person suffering harm was aware of the risk.”
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The equivalent provision in New South Wales is s 5L of the Civil Liability Act 2002 (NSW). There is no material difference between s 19 of the Civil Liability Act (Qld) and s 5L of the Civil Liability Act (NSW).
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Paragraphs 1 to 4 of s 13 of the Liability Act (Qld) mirror those in s 5F of the Civil Liability Act (NSW). Senior counsel for the plaintiff referred to Goode v Angland [2017] NSWCA 311 at [174] and [210].
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So far as liability is concerned, the plaintiff relied upon the report of Mr Bob Barnard, Motorsport Consultant, dated 8 March 2018. The defendants have not served any liability reports in the proceedings.
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The defendants’ defences are not limited to the obvious risk of dangerous recreational activities. The defendants argue that their track had been laid out in the same way for nearly 30 years and there had never been another incident of this kind. The defendants’ case is that any risk of harm to an experienced attendee such as the plaintiff was so remote that it could be considered insignificant in the circumstances. The defendants also argue that they had taken reasonable precautions against the risk of harm by way of the erection of barriers and by the track design generally. While the plaintiff concedes that the defendants’ arguments might succeed, it is his position that he will succeed in establishing that the defendants beached their duty of care. The plaintiff’s concern on liability relates primarily to the issue of obvious risks of a dangerous recreational activity.
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If the plaintiff were to succeed on primary liability, there would then be the question of contributory negligence. Any finding of contributory negligence will not defeat the plaintiff’s claim, but will reduce his damages in the event he obtains judgment in his favour.
The proposed settlement
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On 21 April 2020, the parties attended mediation. On 2 May 2020, the defendants offered to settle the plaintiff’s claim for a compromise amount that is to remain confidential.
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I have been provided with a detailed and helpful written opinion from Messrs D Toomey SC and J Ryan, who appeared for the plaintiff. I am asked to approve settlement in favour of the plaintiff. The plaintiff’s solicitor agrees with that advice. The plaintiff’s tutor has instructed the solicitor to accept the defendants’ offer of settlement, subject to approval by this Court. A copy of the proposed consent terms of judgment is before this Court.
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There are some deductions to be made to the compromise sum. They are an expired charge of $6,912.60 dated 27 April 2018 to be refunded to Medicare. On 12 May 2020, the plaintiff and tutor completed the Medicare history settlement which calculated the services owing from the expired charge and the plaintiff owes $3,739.85 to Medicare. The plaintiff’s solicitor has advised the tutor that the Medicare is likely to be these two amounts owing which total approximately $10,652.45. There is unlikely to be payback to Centrelink. There is a refund to the Careflight Retrieval Service of $3,000. It will be a matter for trustee as to what costs beyond the agreed party/party costs will be made available from the proceedings of settlement if approved.
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The applicable principles in an application for approval of a proposed compromise are well settled. It is not necessary to repeat them here.
Conclusion
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I am required to form a view about whether the risk to the plaintiff of losing the sum certain that has been agreed is outweighed by the possibility of receiving more after a hearing.
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That decision calls for an experienced judgment, taking into account the plaintiff may lose the case due to the provisions of ss 13 and 19 of the Civil Liability Act (Qld), weighed against the possibility that the plaintiff may receive a greater sum at trial.
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Applying these principles to the present case, it is my view that the proposed settlement is beneficial to the plaintiff’s interests and it should be approved.
By consent the Court notes that:
(1) This matter has settled as between the plaintiff and the defendants in accordance with the terms of a consent judgment dated 28 May 2020 and signed by the legal representatives of the parties.
The Court:
(2) Approves the settlement pursuant to s 76(4) of the Civil Procedure Act2005 (NSW).
By consent the Court orders that:
(3) In accordance with s 77 of the Civil Procedure 2005 (NSW) that the balance of the settlement sum, after deductions, be paid into Court until further order.
By consent the Court further notes:
(4) Paragraphs 2, 3, 5, 6 and 7 of the consent judgment.
(5) The confidential opinions made to this Court are to remain confidential.
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Decision last updated: 29 May 2020
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