Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone

NEW SOUTH WALES COURT OF APPEAL

CITATION: MACARTHUR DISTRICTS MOTOR CYCLE SPORTSMEN INC & ORS v. ARDIZZONE [2004] NSWCA 145

FILE NUMBER(S):
40879/2003

HEARING DATE(S): 30/04/2004

JUDGMENT DATE: 20/05/2004

PARTIES:
Macarthur Districts Motor Cycle Sportsmen Inc. - First Appellant
Motorcycle Sports NSW Incorporated (Previously known as) Motorcycling Australia (NSW) Incorporated and Motorcycling New South Wales Incorported - Second Appellant
Motorcycling Australia Limited - Third Appellant
Daniel Ardizzone - Respondent

JUDGMENT OF: Hodgson JA Bryson JA Stein AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC: 189/2002

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
G.F. Little SC and H.J. Halligan - Appellants
J. Catsonos - Respondent

SOLICITORS:
Eakin McCaffery Cox - 1st, 2nd & 3rd Appellants
Everett Paul - Respondent

CATCHWORDS:
NEGLIGENCE - standard of care - participants in game - inherent danger - respondent (plaintiff) boy aged 12 y.o. took part in motor cross (motorcycle) race organised by appellants (defendants) sporting associations - respondent fell off at jump, lay winded on track and was struck and injured by following rider - Trial Judge found breach of duty of care which required stationing sufficient marshalls in positions to intervene and signal with yellow flag to other riders - sport inherently dangerous - consideration of standard of care (Shirt Calculus) and significance of respondent's knowledge of risk from absence of marshalls and of warning from his father - decisions of Trial Judge on standard of care, breach and causation upheld.
DAMAGES - future economic loss - consideration (by Hodgson JA) of operation of s.13 of Civil Liability Act.
LAW REFORM - further economic loss - Hodgson JA expressed view that s.13 required Parliamentary reconsideration. (D)

LEGISLATION CITED:
Civil Liability Act 2002

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40879 of 2003
Hodgson JA
Bryson JA
Stein AJA
THURSDAY 20 MAY 2004

MACARTHUR DISTRICTS MOTOR CYCLE SPORTSMEN INCORPORATED & 2 ORS v. ARDIZZONE

Judgment

HODGSON JA: I agree with Bryson JA.
I wish to make some additional comments concerning s.13 of the Civil Liability Act 2002, which is in the following terms:
13 Future economic loss - claimant’s prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Thus, s.13(1) and s.13(3) require identification and statement by the court of “assumptions about future earning capacity or other events on which the award [of damages for future economic loss] is to be based”; and s.13(1) requires satisfaction that these assumptions “accord with the claimant’s most likely future circumstances but for the injury.”
Then, s.13(2) requires an adjustment of the “amount of damages for future economic loss that would have been sustained on those assumptions” by reference to the “percentage possibility that the events might have occurred but for the injury”; and s.13(3) requires the court to state “the relevant percentage by which damages were adjusted.”
In general terms, the “assumptions” referred to in s.13(1) and s.13(3) are the views about what the future economic situation of the plaintiff would have been but for the injury, with which the court compares the future economic situation of the plaintiff resulting from the injury, as it is understood to be. Normally, these views will be expressed in terms of a capacity to earn a certain amount net per week as from the date of hearing until an estimated retiring date, perhaps with adjustments for promotion or other possible circumstances which could be anticipated as affecting earning capacity.
In my opinion, the provisions in s.13(2) and s.13(3) concerning a “percentage” are meant to be a statutory implementation of the practice of making a deduction in relation to future economic loss for “vicissitudes”, for which 15 percent is the percentage conventionally adopted in most cases.
However, the precise formulation of these provisions raises some problems.
In the first place, there is at least theoretically some tension between the requirements of s.13 and what the High Court of Australia said in Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 about assessing damages, namely, that in respect of hypothetical and future events, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts the award of damages to reflect that degree of probability. This could be understood as suggesting that the court should not base its award on the “most likely future circumstances” but rather should base it on probability weightings of a range of alternative possibilities.
That matter was considered with some care in Norris v. Blake (No 2) (1997) 41 NSWLR 49, where it was concluded that the proper approach in that case was to assess what it was most likely the plaintiff would have earned during the rest of his working life, and then adjust this for contingencies. So far, this would appear generally in accord with s.13. But in Blake, at 73, it was expressly noted that the contingencies included the possibility that the plaintiff might have done far better; and that is a matter to which s.13 appears to make no reference.
Subject to what I say later about “buffer” awards, it seems that the Blake approach has in fact been adopted in most personal injury cases, as a practical way to give effect to the Malec principle; and s.13 may be regarded as making it mandatory to do this. However, and this leads to the second major problem with s.13, the wording of s.13(2) is not entirely apt to the purpose of requiring an appropriate adjustment for vicissitudes or contingencies.
At first blush, “the events” referred to in s.13(2) would seem to be the events (including those relating to future earning capacity) on which the award is to based, which according to s.13(1) have been considered most likely but for the injury. “Most likely” here does not mean more likely than not, but more likely than any other possible scenario; and the “percentage possibility that such events might have occurred but for the accident” could be any percentage at all, depending on the number and respective probabilities of alternative scenarios. To adjust the damages according to this percentage possibility would make no sense at all.
In my opinion, having regard to the apparent purpose of the section, “the events” in s.13(2) must be those corresponding to the future economic situation of the plaintiff as it is understood to be resulting from the injury, not those corresponding to his future situation but for the injury. (I note this has much the same effect as reading s.13(2) as if “the events” were those referred to in s.13(1), but reading the last seven words of s.13(2) as if they were “might not have happened even if the injury had not occurred”). Even this has the difficulty that the percentage possibility that those events (that is, all those events, not just some of them) might have occurred even if the injury had not occurred would be vanishingly small. The vicissitudes that are normally allowed for are a multitude of possibilities that, even without the injury, could have in various ways prevented the plaintiff from completely achieving the economic situation considered most likely.
The usual allowance of 15 percent is not on the basis that there is a 15 percent possibility that even without the injury, the plaintiff would not have achieved the most likely economic situation, but on the basis that this is a reasonable discount having regard to a myriad of possibilities each of which could have meant that the plaintiff fell short of this situation to various degrees. In my opinion, despite problems with the literal wording of s.13(2), it should be read as having this effect.
There is the additional difficulty that s.13(2) does not seem to deal with the situation, contemplated in Blake, where there is a significant chance that the plaintiff’s economic circumstances but for the accident might have been far better than the most likely circumstances. In that case, there was a moderate but not negligible chance that the plaintiff might have become a “superstar” earning huge amounts of money. It may be that, consistently with a purposive interpretation of s.13(2), positive vicissitudes can be taken into account in reaching the appropriate figure for adjustment, and perhaps even completely balance out negative vicissitudes. However, at present I am doubtful that s.13 would permit an upward adjustment if positive vicissitudes were considered to outweigh negative vicissitudes. It is not necessary to determine that question in this case.
One final problem with s.13 is whether it permits an award for future economic loss in the nature of what is called a “buffer”. In some personal injury cases, the court has taken the view that the plaintiff should be compensated, not for any ongoing difference between the most likely economic situation but for the accident and the actual future economic situation as it is understood to be, but rather for the chance that the plaintiff will be disadvantaged in the future because of the injury. It is a possible view of s.13 that it precludes this approach.
In the present case, the primary judge referred to a cushion or buffer, but went on to assess future economic loss on the basis of the figure of $100 per week. In my opinion, this, together with the other matters referred to in paragraphs [67]-[68] of the primary judge’s judgment, was an adequate indication of assumptions on which the award was to be based, including the assumption that the plaintiff’s future earning capacity but for the accident was $100 a week net greater than his reduced future earning capacity; and an adequate indication that these assumptions accorded with the plaintiff’s most likely future circumstances but for the injury. The allowance of 20 percent for vicissitudes sufficiently complied with s.13(2) and s.13(3). Thus this was not strictly a buffer award, and it is not necessary in this case to decide if s.13 precludes such awards.
I would conclude by suggesting that Parliament reconsider the wording of s.13. It appears deficient in three respects:
1. Its wording is inapt to its manifest purpose of providing for the usual “vicissitudes” deduction.
2. It may not allow for positive vicissitudes.
3. It may not allow for “buffer” awards, which on Malec principles are most appropriate in some cases.
BRYSON JA: The defendants, now the appellants, appeal against the judgment of his Honour Judge Delaney in the District Court at Penrith. On 15 August 2003 the learned Trial Judge awarded the plaintiff, now the respondent, damages of $242,000 for personal injuries sustained on 6 April 1997 while he was participating in a motor cross race at a motor cross track at Appin. The track and the event were controlled by the first appellant Macarthur Districts Motor Cycle Sportsmen Inc (hereinafter the Club). All three appellants were involved in some way in the management of the event, made common cause and had common representation, and in the conduct of the proceedings no differentiation was made between them.
The respondent was born on 6 October 1984 and was 12 years of age when injured. He already had much experience riding in motor cross events over about five years. He attended the Appin track in the care of his father and in the company of other family members and friends. He had done a practice lap and had raced on the Appin track in three races at one earlier event, and he had one practice lap on the day of the event before the race in which he was injured. There were about five or six riders in his race. According to the respondent’s evidence, which was accepted by the Trial Judge, the respondent was proceeding along a straight when he came to a jump, rode over the jump and fell on the far side. He was then struck by a following motorcycle and suffered severe injuries.
The ground on which the respondent succeeded before the Trial Judge sufficiently appears in the following passages from the judgment: (paras.36-37 of pp.38-39 of red appeal book)
36. … the issue came down to whether or not there were sufficient marshals.
37 In my opinion accepting the evidence of the plaintiff and Mr Murphy and Mr Atkinson, I have reached the conclusion that there were insufficient marshals to ensure the safety of the riders on the track. The risk was foreseeable. The magnitude of the risk that a rider would fall was great. There was a real likelihood of the occurrence and consequential injury. The duty on the defendant[s] was to have adequate marshals at curves and jumps such as the one described by the plaintiff. The failure to do so was a breach of duty that caused the injury to the plaintiff. I accept the description by the plaintiff of the dimensions of the jump, I reject that of Mr Dow and conclude that in the circumstances of that jump a marshal should have been able to see the jump and be able to warn following riders if a fall occurred. Thereby injury to the plaintiff would have been avoided if a marshal had been there and used his flag. There will be a verdict for the plaintiff.
Senior counsel for the appellants made submissions on three matters on which he said the appellants took issue with the judgment. The first issue relates to the standard of care, also referred to as the scope or extent of the duty of care, which the Trial Judge applied, and to his Honour’s decision that there was a breach of the duty of care. It was contended that standard of care should be assessed in the light of the inherent danger of the sport and of the respondent’s particular knowledge of the actual danger, arising from a warning which the respondent received from his father about the lack of marshals, and from his father’s attempt to dissuade him from racing that day. It was said that the Trial Judge gave insufficient weight, or no weight, to the warning and to the respondent’s knowledge of the danger. In his second submission, counsel contended that the Trial Judge erred in finding that the absence of a marshal at the point on the track where the respondent was injured was causative of the injury; the absence of a marshal, it was contended, could only have been causative of the injury if the presence of a marshal would have been able to stop the following rider from colliding with the respondent, the only evidence which went to that matter was the respondent’s evidence in which he estimated how long he had been on the ground before the collision, and his estimate of time was unreliable. It was also contended that the respondent had the means of calling the following rider as the respondent knew his identity, that the following rider was a disinterested witness, and that the Trial Judge should not have found causation in the absence of evidence of the following rider.
The appellants’ counsel thirdly took issue with the assessment of damages for economic loss which he said was in error that the Trial Judge did not comply with s 13 of the Civil Liability Act 2002, and had not followed the three-stage process required by that Act, and alternatively if the process had been followed the judgment did not indicate that the steps of the process were taken in the appropriate order. Several other aspects of the appellants’ challenge to the assessment of damages were developed. It was contended that there were insufficient basic findings for the Court of Appeal to assess damages for economic loss, and that the question of damages should be sent for re-hearing at large.
It is clear (and was not contended otherwise) that the law of negligence extends into participation in a sport which involves inherent dangers. In Rootes v. Shelton (1967) 116 CLR 383 at 385 Barwick CJ said:
By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connexion, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.
At 387 Kitto J said:

I cannot think that there is anything new or mysterious about the application of the law of negligence to a sport or a game. Their kind is older by far than the common law itself. And though water skiing may be slightly faster than chariot-racing it is, like every other sport, simply an activity in which participants place themselves in a special relation or succession of relations to other participants, so that adjudication under the common law upon a claim by one participant against another for damages for negligence in respect of injuries sustained in the course of the activity requires only that the tribunal of fact apply itself to the same kind of questions of fact as arise in other cases of personal injury by negligence. It must do so, of course, under judicial guidance as to what the law has to say upon the questions whether, in the situation in which the plaintiff’s injuries were caused, the defendant owed him a duty to take care not to harm him, what the extent of the duty was if a duty did exist, and what causal relation the plaintiff must prove between an act or omission by the defendant which was a breach of the duty and the plaintiff’s injuries. We are here concerned mainly with the first two of these questions. They are questions to be answered by reference to the circumstances surrounding any act or omission of the respondent which the jury considered was a cause of the appellant’s injuries. It was for the jury to identify that act or omission, and then to decide what were the circumstances in which it took place.

Negligence liability of a person organising and controlling a game involving risk was considered at length in judgments of the High Court in Woods v. Multi-Sport HoldingsPty Ltd (2002) 208 CLR 460. Among the majority judgments, Gleeson CJ at 472-473 followed the approach to the law of negligence established in the judgment of Mason J in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47. Mason J said:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

The test which Mason J established was summarised by Gleeson CJ at 472:
…ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk.
Gleeson CJ expressly adverted to the fact that the plaintiff was an adult. No observations were made in the judgments about the position of participants in dangerous sports who are children. Hayne J agreed with Gleeson CJ with further observations at 501 to 504 and Callinan J reached a similar conclusion.

Judgments of the High Court in Agar v Hyde (2000) 201 CLR 552 also deal with negligence liability in relation to organisation of sporting contests, but in a factual context far removed from the present.
Foreseeability of injury to the respondent was clear. Determination of the standard of care requires the Court to perform the exercise, often called the Shirt Calculus, referred to by Mason J in Wyong Shire Council v. Shirt. The Trial Judge did not explicitly carry out this step in decision, and stated the conclusion that “The duty on the defendant[s] was to have adequate marshals at curves and jumps …” I will later state how in my opinion that stage of decision should be performed.
The respondent gave evidence that there were approximately three to four marshals, but the marshals he saw were nowhere near the straight section (p50 of black appeal book). There was no call for parents to come forward and act as marshals; the respondent did not make any complaint that there were insufficient marshals (pp48-49 of black appeal book). The respondent gave evidence, which the Trial Judge accepted, that the jump was at about chest height from its base to its apex, referring not to his height at 12 years of age when injured but at 18 years of age when he gave evidence. The Trial Judge did not accept the appellants’ contention that none of the jumps was higher than 60 centimetres. The significance of the height of the jump is its bearing on the view available to the following rider of the respondent on the track after his fall. No evidence was given by any other rider, and there was no finding establishing what view was available to the following rider.
Evidence established clearly that it was the practice to allocate marshals to particular points of the track to assist riders and to alert them to things that they could not see. Mr Dow, the secretary of the Club and the only witness called by the appellants, gave an example that the back of a jump might not be visible to a rider so a marshal would be posted there. Mr. Dow also gave evidence of events of the day of accident including the height of the jumps and the number of marshals at the race. The Trial Judge did not regard Mr Dow’s recollection of those events as accurate, and found that Mr Dow had reconstructed the likely events of the day from his experience without any actual recollection of the events (see p.36 of red appeal book). However as the Trial Judge recited at length the effect of Mr Dow’s evidence in earlier passages, his Honour appears to have accepted Mr Dow’s evidence about general circumstances of the organisation of race meetings, which showed that it was mandatory to have marshals at race meetings, that this was a term of the licence issued by the relevant public authority for the conduct of meetings, that the licence did not specify how many marshals were required, that it was necessary to have marshals where the track was obscured and to have sufficient marshals so riders would have a clear line of vision from one marshal to the next, and if this was not possible the race would not go ahead.
The Trial Judge’s finding that there were insufficient marshals to ensure the safety of riders on the track was a finding based on the evidence and inferences from the evidence of the respondent himself to the effect that he did not see any marshal in the area of the straight, together with evidence of the respondent’s father and another relative about their observations. The respondent’s case on this question was not, it must be said, at all strong, but it was not answered by any countervailing evidence called by the appellants; evidence called by the appellants showed rather that they were not in a position to establish the facts in detail, because of the interval of time before the proceedings were brought and the loss of records. The respondent and his witnesses were cross-examined with a view to establishing that there were sufficient marshals, or that they in truth had no real knowledge of the situation. Although the conclusion reached by the Trial Judge was not the only conclusion available on this body of evidence, I am of the view that there was a reasonable basis on which the Trial Judge could find as he did, and it has not been shown that his finding was wrong.
The respondent gave evidence that he was struck by the following motorcycle while he was on the ground after falling off his motorcycle, and that before being struck he was lying on the ground for 30 seconds to a minute. The respondent said he was winded, in pain and could not breathe properly (pp57-58 of black appeal book) and did not have time to crawl along the ground or drag himself off the track. He said that he heard another motorcycle coming and he went to get up off the track and then the motorcycle hit him. The appellants contended that there was no significant interval between the respondent’s fall and his being hit by the following motorcycle. The appellants’ position was not supported by any evidence and the respondent adhered to his estimate when challenged under cross-examination. The respondent’s evidence was that the speeds were usually to the full extent of the power of a motorcycle. (p30 of black appeal book). It is arithmetically very improbable that the respondent’s estimate of 30 seconds to one minute is accurate, as an entire circuit of the track was 1.62 kilometres (see Exhibit A) and even at 30 kilometres per hour a rider would go around the circuit in a little over three minutes; the respondent was not in the lead, and it is very unlikely that the following rider was so far behind as to take 30 seconds to one minute to reach him. The respondent was winded in the fall and was unable to get off the track before the collision. He was in a very poor position to make an accurate assessment. It is not surprising that the Trial Judge did not make a finding specifically accepting the respondent’s evidence about the time interval. However it is plain from the findings that his Honour found that there was a significant interval, sufficient to allow a marshal to give a warning to the following rider before he struck the respondent. This implied finding was supported by the respondent’s evidence of the events which occurred during the interval, and was not solely based on the respondent’s estimate of time.

Although there were some references to contributory negligence in the course of argument, no contention of substance was made to the effect that the Trial Judge should have found that the respondent was guilty of contributory negligence. The Trial Judge’s finding on contributory negligence was in these terms: (para.38 of p.39 of red appeal book):
Because of the plaintiff’s age, despite his experience, I do not consider there was any contributory negligence. He was winded and in pain and could not get out of the way before the other rider arrived.
Appellants’ counsel sought to give a further dimension to contributory negligence of the respondent. It was contended that such contributory negligence was relevant in determining the standard of care and whether there was a breach of the duty of care.
It was contended that the activity in which the respondent participated was inherently dangerous. This contention was represented in the Notice of Grounds of Defence of the Second Defendant (as an example) by the following passage: (para.4 of p.13 of red appeal book)
4. The Second Defendant states that the Plaintiff was participating in a high risk sport and accordingly the incident the subject of these proceedings was not an unusual incident or due to the negligence of any of the Defendants.
The fact that the activity was a high risk or inherently dangerous sport is manifest from the nature of the sport, the activity described by the respondent, and his evidence establishing that he had frequently been involved in falls. He said “You could have up to a dozen falls in a day.” He had not counted how many he had had in his career but he gave an estimate of more than 50 (p59 of black appeal book). The danger to a fallen rider in a motor cross race is inherently obvious, and notwithstanding his youth must have been and was obvious to the respondent from his participation over some years in many motor cross races.
Appellants’ counsel particularly relied on the evidence of a warning which was given to the respondent by his father, Mr Anthony Ardizzone, before the race. Mr Ardizzone was familiar with motor cross racing and with the practice of stationing marshals, and his evidence, which the Trial Judge found to be reliable, was that he had acted as a marshal on the particular straight stretch where the accident happened on earlier occasions. Mr Ardizzone said in evidence (p.66 of black appeal book) to the effect that he had been involved in motor cross for many years before the accident took place, that he had seen a lot of falls and spills involving young motor cross riders at the age of the respondent and that serious injuries were very rare: “It’s very rare for anyone to have a bad injury.” This evidence supports what I have said about foreseeability and inherent danger.
Before the race began Mr Ardizzone was aware that no marshal was stationed on the straight section of the track and in his own mind wanted to leave and take his son home; he did not do so because his son did not want to go, and he left his son in the race for that reason. Mr Ardizzone said to the effect that there were three or four marshals at the race but not on the straight (see p.65 of black appeal book). In evidence he said:
A.           Well it was my idea to stop him racing yes.
Q.Did you go up to the starting line and say ‘Look Daniel you’d better not race, there’s no marshal at the straight section’ did you say that to him -
A.           Absolutely, prior to him starting I did yes, I did.
Q.And he said ‘Thanks Dad but no thanks, I’m continuing on’, is that right?
A.           Because as most children do, they beg you to stay.
Q.And you didn’t say anything to any other official about it is that right?
A.           No, well there isn’t --
Q.You didn’t say anything to any other official about your concern about a lack of marshals on the straight section is that right?
A.           Not to an official no.
The locutions included in the cross-examiner’s questions: “Look Daniel you’d better not race, there is no marshal at the straight section” and “Thanks Dad but no thanks, I’m continuing on” were not quotations from any other passage in the evidence. It was not suggested to the respondent in cross-examination that he had received a warning in those terms or in any terms. The issue about the warning had its origin in Mr Ardizzone’s evidence to the effect that the respondent did not want to leave, and that it was Mr Ardizzone’s idea to stop the respondent from racing. If anything the tendency of cross-examination of the respondent had been to suggest that there were sufficient marshals. Accordingly the evidence of the respondent did not include any evidence dealing with whether or not he had had a warning from his father. There was no application to the Trial Judge to re-open cross-examination of the respondent to put this suggestion to him. How the Trial Judge would have responded to an application for leave to put this profoundly different suggestion to the respondent is not known; his Honour could well have reacted with surprise, but there was no such application.
Paragraph 37 of the Trial Judge’s judgment which I have set out shows that his Honour reached the conclusion that the standard of care required the appellants to have adequate marshals at curves and jumps such as the one described by the respondent without making any reference to the warning given to the respondent by his father. From this I understand that his Honour did not regard the warning as having importance in assessing the standard of care.
I will spell out what I regard as establishing the standard of care. Like the respondent, participants in the race were not adults, but children. Participation was voluntary, and there was no context of school or other discipline. To participate a child needed equipment and support which could only be provided by a parent or a circle of supporting adults, for example supply and maintenance of motorcycles, and provision of more basic aspects of organisation such as attendance and arranging participation in races. The situation of the respondent, aided and attended by his father, must have been typical for participants. There were obvious risks of injury inherent in the sport, obvious even to a child of 12, relating to falling off a motorcycle and impact by another motorcycle. It was not practically possible for a race to take place without the race being organised by someone in a position of general control, at the basic level of providing the track, and more organically in controlling the starting of the race, recording results, identifying entrants in races, and establishing qualifications for participation in particular events, such as the age and experience of participants and the power of their motorcycles. The exercise of control affected all participants equally, whether or not their fathers pointed out to them the absence or insufficiency of marshals. The appellants themselves did not give the warning to the respondent about the absence of marshals or risks related to their absence. The fact that the respondent received a warning from his father was not within the knowledge of the appellants. The exercise of the appellants’ control was uniform for all participants, warned or unwarned.
Provision and stationing of marshals were ordinary and usual arrangements in the exercise of control over races, required (in a general way) by the relevant public authority and requiring further attention in detail to the adequacy of the number of marshals, and to where they were stationed. Marshals were customarily stationed and equipped with yellow flags with which to make signals; and customarily did make signals where appropriate, such as when there were falls. Provision of marshals, in adequate numbers and at appropriate stations, could not remove all the risk inherent in the sport, but would, according to circumstances, tend to operate to reduce risks, to prevent risks from being realised, and to protect participants against injury. Provision of sufficient marshals would work for the protection of all participants. Of overriding importance is that the participants were children, not mature in years or judgement, that although they were exposed to foreseeable danger and were able to appreciate and respond to risks, they were not able to do so, even if warned, in the same way as adults. The respondent had no means of control over events, other than to refuse to participate. No one could expect a good assessment of risk and a good decision on whether to participate in a motor cross race from a boy of 12.
Whether provision of sufficient marshals was a reasonable response to the foreseeable risk of injury is very largely answered by the consideration that it was the usual response. The test for adequacy of numbers of marshals is obvious enough; the track must be under observation, and the number and stationing of marshals must make this possible. In my view knowledge of the respondent that there was no marshal in the straight section does not have a prominent claim for consideration when assessing what was the standard of care imposed upon the appellants in the circumstances. The standard of care is not established by the understanding or response of a child. Treatment by the Trial Judge of the standard of care as extending to providing a marshal with a view of the straight and the jump and in a position to intervene if a participant fell off is the plain and obviously correct conclusion, and the presence or absence of a warning by the father of a particular participant does not have any significant part in determining the scope of the appellants’ duty.
In my opinion the Trial Judge’s assessment of the standard of care in paras 36 and 37 in his Honour’s judgment is correct.
It was secondly submitted that if it was a breach of duty for the appellants not to have arranged the presence of a marshal, it was for the respondent to prove that the absence of a marshal was causative of the respondent’s injury, and that it could only have been causative if the presence of a marshal would have been able to stop the following rider from colliding with the respondent. In support of this counsel referred to the improbabilities of the respondent’s estimate of the time interval between his falling off the motorcycle and being struck by the following rider.
However the force of the respondent’s evidence is not its force to establish that the time interval was as long as he said, but its force to establish that there was a significant interval of time between the respondent falling off his motorcycle so as to lie winded on the track, and the collision. Collision by an immediately following rider would have been no more than the realisation of an obvious inherent risk of the sport. Collision after a significant interval, that is an interval long enough for the marshal to observe the fall, signal with the flag and for the following rider to react, was the real object of proof.
Acceptance that there was a significant interval between the respondent’s fall and his being hit was of central importance. If there was a significant interval, even only a few seconds, there was an opportunity for a marshal who was in a position to observe the fall to intervene, and if the marshal intervened by signalling to following riders with a yellow flag, it should reasonably be found to be probable that the collision would have been avoided. That is what marshals were stationed on the track to do, and it is a fair inference that if there had been a marshal in a position to act he would probably have acted. It is a sound line of reasoning that if there was a significant interval between the two events, and if there was a marshal in position to intervene and to signal with a flag to other riders, the collision would probably have been prevented.
It was contended that it was incumbent on the respondent to call evidence which would establish that the absence of a marshal would have made any difference; and that the practical implication of this was that it was incumbent on the respondent to call evidence of the following rider so as to show that action by a marshal would have made a difference. It was contended that it was within the respondent’s power to identify the following rider, as the respondent’s evidence showed that he knew the rider’s bike number and the club he came from. The substance of the submission was that the Trial Judge was not in a position to accept the respondent’s evidence or to find or act on the basis that there was a significant interval, in view of what was said to be its strong inherent improbability, unless it was supported by the evidence of the following rider.
Evidence was given by Mr Peter Atkinson, a regular attender at motor cross racing and the parent of another boy who participated in the same motor cross race. Mr Atkinson gave evidence of a number of facts relating to the events of the day and the practice of stationing marshals, although he did not himself directly observe the collision. He said in evidence that the motorcycle which collided with the respondent was bike number 52, that the rider was a Wollongong rider; and Mr Atkinson said that he could find out his name by going back to the Wollongong Bike Club of which Mr Atkinson was a member. The respondent knew the bike number of the rider who was behind him and which club he came from. (p56 of black appeal book) He could not recall his name. He knew him only from meeting him and talking to him on the day of the event, and he had not met him at a prior event.

Appellant’s counsel’s submission was not based on Jones v. Dunkel (1959) 101 CLR 298, as there is no basis for thinking that the following rider was in the camp of the respondent or of either party. The respondent had some information on which inquiry to identify and call the following rider could be based, but that is not enough, in my view, to establish that the witness truly was available. For observations relating to the respondent’s not having called the witness to have full force the appellants would have to show that the witness was not only identifiable and available, but was in a position to give admissible evidence. That does not appear simply from the fact that he was the following rider, as there is a need to establish whether he in fact made any useful observations, whether he had any recollection, and whether he would be a willing or co-operating witness. After all, he did collide with the respondent and cause him injury. The respondent proved a prima facie case with his own evidence, it was open to either party to seek out witnesses and call them, and what evidence the following rider could give was at least as open to investigation by the appellants as it was to investigation by the respondent.
In my view there is no real force in the contention that, in the absence of evidence of the following rider, the respondent’s case should not have been accepted. It should not in my opinion be concluded that the Trial Judge acted unreasonably, or was wrong in acting on the respondent’s evidence in the absence of evidence of the following rider, or of any other rider in the event. Indeed there was no other witness in the whole of the evidence who spoke of seeing the event at all, and it is to some degree speculation whether or not the following rider was in a position to give evidence of value.
The Trial Judge concluded “… in the circumstances of that jump a marshal should have been able to see the jump and be able to warn the following riders if a fall occurred.” Necessarily involved in that conclusion is the view that there was in fact an adequate interval between the fall and the collision for the marshal to give a warning, and the view that if a warning had been given, it would probably have been effectual. This conclusion disposed of the issue of causation. The conclusion has not been shown to be wrong.
The appellant’s counsel thirdly submitted that the Trial Judge was in error in his treatment of the respondent’s claim for damages for economic loss, and in his Honour’s assessment of those damages. It was contended that the his Honour did not comply with s 13 of the Civil Liability Act 2002, and that the reasons given did not indicate that the steps indicated by s 13 were followed at all, or that they were followed in the appropriate order. It was contended that the Trial Judge did not recognise that the respondent had provided no evidentiary foundation to make and state the assumptions referred to in s 13. It was contended that the insufficiency in evidentiary foundation should lead to an order for a new trial as to damages; and that the new trial should be at large and not just on the issue of economic loss.
It is clear that the Trial Judge adverted to the relevance and operation of s 13, as submissions relating to s 13 were referred to in the judgment. In para.66 of the Trial Judge’s judgment, His Honour recorded the contention by the appellants’ counsel that the evidence was inadequate and that the Court would be forced to find that s 13 had not been met. The Trial Judge said (paras.67 and 68 of p.45 of red appeal book):
67. In my opinion this is a case for a cushion or buffer, the reason for this is that the plaintiff has shown that he has a restricted earning capacity in various occupations that he might have pursued has he not been injured. He has been restricted in the ability to be able to perform tasks requiring heavy manual work, this is something that he may well have had to pursue during the course of his life, even if he was able to obtain other types of work. It is not uncommon in our society for people to work 2 jobs, one being an office job the other being a manual job. He is clearly restricted in many of these regards and there is a likelihood as time goes on that he will have osteoarthritic changes affecting his ability to be able to perform his work.
68. In my view a proper assessment of his loss for the future taking into account his other injuries should be $100.00 per week. The plaintiff is now almost 19 years old. To age 65 he has 46 years. The multiplier for 46 years on the 5 percent table is 956.1. if one allowed the plaintiff $100.00 per week this figure comes to $95,610.00. Because of his other injuries and disabilities some slight reduction over and above the usual 15 percent vicissitudes should be allowed and I consider this should be 20 percent. I accordingly consider it is appropriate to allow him $75,000.00 for reduced earning capacity, being a rounded off figure applying generally the figures to which I have referred. There was no claim for lost superannuation entitlement.
Subsection 13(1) required the Trial Judge to state the assumptions on which the award was based, and reference to subs.13(1) shows that they are “the assumptions about future earning capacity or other events on which the award is to be based …”
The imprecision in the passage from the judgment which I have set out reflects the state of evidence and underlying facts, which did not enable findings to be made in highly concrete terms establishing the occupation which the respondent was following and would have continued to follow but for the injury, the occupation which he followed as a result of the injury, and his earning capacity in each; as the respondent was injured before embarking on his working career, this imprecision is inevitable. In my view paras.67 and 68 of the judgment state the assumptions on which the award was based in as clear a manner as the nature of the facts allow, that is that the respondent is restricted in his ability to perform tasks requiring heavy manual work, which is something he may well have pursued during the course of his life, even if he was able to obtain other types of work; he is clearly restricted in respect of prospects of working two jobs, one an office job, the other a manual job, and there is a likelihood of osteoarthritic changes further affecting his working ability; and that the proper assessment of his loss should be $100 a week.
Notwithstanding the Trial Judge’s reference to a cushion or a buffer, the force of which I find obscure, I am of the view that the Trial Judge went on to state what s 13 requires to be stated, within the severe limits in which assumptions on which the award was based could be stated, given the respondent’s circumstances. His Honour stated, as clearly as the facts admitted, what restrictions his Honour found the injury placed on the respondent’s working ability and employment, and the finding that a proper assessment of reduced earning capacity should be $100 per week was within the wide range of findings reasonably available. His Honour’s reference to reduction of 20% for vicissitudes should be understood to be a finding on the percentage possibility referred to in subs.13(2). $75,000 is 78.44% of $95,610. His Honour made a discount for vicissitudes slightly higher than 20% to reach a rounded-off figure of $75,000 for reduced earning capacity.
In my view the findings in para 68 are not inadequate in relation to requirements of subs.13(1) when regard is paid to the facts upon which the Trial Judge was required to act. Section 13 does not provide that if the assumptions referred to cannot be established in a clear and concrete manner there cannot be an award of damages for future economic loss. As recurringly happens when Courts are called upon to assess damages, it is necessary, and with the enactment of s 13 it remains necessary to make the best assessment the Courts can notwithstanding the indefinite nature of integers on which the assessment is based. While I would wish for a more fully articulated compliance with the requirements of s 13, I am of the view that there was no error in this respect.
Appellants’ counsel also contended that in fixing damages for non-economic loss and applying the table to s 16 of the Civil Liability Act 2002 the Trial Judge was in error in adopting and acting on the figure of 35% when assessing the severity of non-economic loss as a proportion of a most extreme case. In para 65 of the judgment the proportion is first referred to as 45% of a most extreme case, but secondly referred to as 35%; and the figure assessed at $128,000 was produced in the application of 35% to the indexed maximum amount. Plainly the reference to 45% is a slip and is not the Trial Judge’s finding. The respondent’s injuries and disability are, as the Trial Judge said, very severe in nature; they were reviewed by the Trial Judge and include a continuing and worsening limp and a severe disability in which his knee continues to lock from time to time, leaving him crying or lying on the floor trying to unlock it; this is a considerable restriction on his activity and interaction with other people. In my view there is no reason to think that the Trial Judge’s assessment of 35% is not correct, always remembering the nature of the exercise and the difficulty of justifying any outcome with precision.
The respondent claimed out of pocket expenses of $38,931. It was established by agreement that the respondent incurred out of pocket expenses of $28,656.65 up to the time when he suffered an injury to his left ankle in a second accident while riding a motorcycle in a race at the Oakdale Circuit on 25 February 2001; then he incurred further out of pocket expenses relating to his treatment which brought the total to the agreed figure of $38,931. The Trial Judge said, in para 65: (p.45 of red appeal book)
65. Although it was difficult to determine the connection between the first and second accidents, I am of the opinion that the treatment for the second accident is to require an adjustment by a reduction to $36,000.00. I have taken all other accidents into account when assessing non-economic loss and economic loss.
The fact that the Trial Judge awarded more than $28,656.65 seems to show that notwithstanding the difficulty of determining the connection between the first and second accidents which his Honour saw, his Honour found that the second accident was caused by the first accident. The respondent gave in evidence an account of the event in which he took part in a race at the Oakdale Circuit on 25 February 2001; according to that evidence, he was entering a slight bend to do which: (p.38 of black appeal book)
… to get down into the bend correctly you’d have to navigate the bike in the air and slightly turn it to the left, so when you could land you’d get a straight run, the quickest way possible through that corner, and while in the air, navigating the motorcycle slightly to the left, the knee twisted and locked up in the air, and on impact I couldn’t use my knees as springs or suspension to take the impact and ’cause I couldn’t bend the knee, the ankle noticed the pressure and resulted in injury to my left ankle.
The accuracy of this account was not challenged in cross-examination. The respondent had earlier had medical advice to stay off his motorcycle whilst he had an unstable knee; he was not acting in accordance with that advice. Plainly the Trial Judge did not accept that that advice broke what was otherwise obviously the chain of causation between the first accident and the second injury. It is difficult in the circumstances to understand why the Trial Judge awarded $36,000 and not $38,931; respondent’s counsel complained of this matter in his submissions, but there was no cross-appeal. If the Trial Judge made any error in this respect, the error was that he did not allow enough damages.
Appellants’ counsel also contended that the Trial Judge was in error in allowing $3,000 for future medical treatment “… to take into account future medication by way of Panadol and the likelihood that he might have a long time in the future further operative treatment” (para 65 of p.46 of red appeal book). In my view no error appears from this allowance.
In my opinion the Court of Appeal should dismiss the appeal with costs.
STEIN AJA: I agree with Bryson JA and with the further remarks of Hodgson JA.

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LAST UPDATED: 20/05/2004

[2004] NSWCA 145

20 May 2004