Norman v TAC

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0112

HAYDEN NORMAN	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, KENNEDY and TAYLOR JJA
WHERE HELD:	Shepparton
DATE OF HEARING:	4 June 2024
DATE OF JUDGMENT:	7 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 123
JUDGMENT APPEALED FROM:	Norman v Transport Accident Commission (Unreported, County Court of Victoria, Judge Robertson, 14 September 2023)

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NEGLIGENCE – Transport accident – Jury trial – Defence of volenti non fit injuria – Risk of being injured by careless or reckless driving – Whether passenger had full knowledge of nature and extent of risk of injury – Whether passenger voluntarily accepted risk of injury – Whether open to jury to find defence of volenti established – View of evidence most favourable to respondent – Defence of volenti supported by evidence – No basis for setting aside jury’s verdict – Application for leave to appeal refused.

Transport Accident Act 1986, ss 94 and 96.

Roggenkamp v Bennett (1950) 80 CLR 292; Coyne v Citizen Finance Ltd (1991) 172 CLR 211; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; Imbree v McNeilly (2008) 236 CLR 510, applied.

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Counsel
Applicant:		Mr ADB Ingram KC with Mr J Valiotis
Respondent:		Ms RL Kaye KC with Ms E Golshtein
Solicitors
Applicant:	Gordon Legal
Respondent:	Solicitor to the Transport Accident Commission

BEACH JA
KENNEDY JA
TAYLOR JA:

At approximately 8:00 pm on 12 September 2018, Hayden Norman (‘the plaintiff’) was a back seat passenger, wearing a seatbelt, in a 1993 Holden Rodeo utility (‘the vehicle’) on Reef Hills Road, near Benalla, when the vehicle left the roadway and collided with an embankment and then a tree (‘the collision’).
At the time of the collision, the vehicle was being driven by Aaron Maggs. The collision was caused by the negligence of Mr Maggs in the driving, management and control of the vehicle. The plaintiff suffered significant injuries as a result of the collision.
At the time of the collision, the vehicle was unregistered. Accordingly, it was an ‘unindemnified vehicle’ within the meaning of s 96 of the Transport Accident Act1986 (‘the Act’).[1] As a result of the vehicle being an unindemnified vehicle, s 96 of the Act permitted the plaintiff to recover in proceedings against the Transport Accident Commission (‘the TAC’ or ‘the defendant’) a sum equivalent to the lesser of the amount for which he could have obtained judgment against Mr Maggs or the amount for which the TAC would have been liable if the vehicle had been the subject of an indemnity under s 94 of the Act.
[1]Section 96(8) of the Act defines an ‘unindemnified vehicle’ to mean a vehicle in respect of which there is no indemnity under s 94 of the Act and no corresponding indemnity under the law of any other State or Territory.
In August 2021, the plaintiff commenced a proceeding against Mr Maggs alleging that the collision was caused by the negligence of Mr Maggs, and claiming damages for the injuries he sustained in the collision. In November 2021, the proceeding was amended by substituting the TAC for Mr Maggs as the defendant.
In the final form of its defence,[2] the defendant admitted that the collision was caused by the negligence of Mr Maggs, but alleged defences of voluntary assumption of risk[3] and contributory negligence. The voluntary assumption of risk defence (which, for convenience, we will refer to as ‘the volenti defence’) was put on the basis that the plaintiff knew of certain facts and circumstances about the condition of the vehicle and earlier driving of the vehicle which gave rise to a risk of injury, which risk the plaintiff freely and voluntarily agreed to incur. The contributory negligence defence was put as an alternative to the volenti defence.
[2]Dated 12 September 2023, and filed and served on day seven of the trial.
[3]Also known as volenti non fit injuria or the shorthand, volenti.
The trial of the proceeding was heard, by a judge and jury sitting in the County Court at Wangaratta, over nine days in September 2023. At the conclusion of the trial, the jury found for the defendant on the issue of voluntary assumption of risk, by answering ‘Yes’ to the following question:
Did the plaintiff know of the nature and extent of the risk which eventuated, and appreciate the nature and extent of the risk which eventuated, and freely and voluntarily agree to incur the risk which eventuated?[4]
[4]While the written form of the question was broken into three parts, we have reproduced the question in the form in which it was actually asked of the jury at the time their verdict was taken.
On 14 September 2023, in accordance with the verdict of the jury, the judge entered judgment for the defendant and ordered the plaintiff to pay the defendant’s costs of the proceeding.
The plaintiff now seeks leave to appeal (and, if leave is granted, to appeal) the orders made against him by the trial judge following the jury’s verdict. His proposed ground of appeal is:
1.The evidence did not establish a defence of volenti non fit injuria and the jury erred in upholding that defence.
The volenti defence as pleaded
The volenti defence was pleaded in paragraphs 4A to 8 of the defendant’s defence. In its final form, the volenti defence was pleaded as follows:
4A.On the day prior to the date the collision occurred –
(a)The Plaintiff drove the vehicle, or alternatively was a passenger in the vehicle when it was driven, in a careless, dangerous and/or reckless manner, including doing burnouts, smashing into bins and driving over rough and uneven terrain;
(b)The Plaintiff and others deliberately caused damage to the vehicle including smashing the windows of the vehicle;
(c)The vehicle was un-roadworthy;
(d)The vehicle was unregistered;
(e)The vehicle did not have rear seats;
(f)The vehicle was unsafe to travel in as a passenger, particularly as a rear seated passenger due to the absence of back seats.
5.On the date on which the collision occurred;
(a)The Plaintiff, Aaron Maggs, and two others entered the vehicle with the intention that Aaron Maggs would joy ride the vehicle in a careless, dangerous and/or reckless manner, including doing skids and fishtails, with the express purpose of trashing, and subsequently dumping, the vehicle;
(b)The vehicle was un-roadworthy;
(c)The vehicle was unregistered;
(d)Aaron Maggs was an unlicensed and inexperienced driver; and
(e)The vehicle was unsafe to travel in as a rear seat passenger as it had no backseat, no rear tailgate and broken glass throughout the cabin.
6.At the time when the Plaintiff entered the motor vehicle before the collision occurred, and at all relevant times leading up until the occurrence of the collision, the Plaintiff knew of the matters alleged in paragraphs 4A and 5.
7.By reason of the matters alleged in paragraphs 4A, 5 and 6 hereof, the Plaintiff well knew and appreciated that there was a risk of injury involved in travelling as a passenger in the vehicle being driven by Aaron Maggs.
8.The Plaintiff agreed to accept the aforesaid risk and accordingly,
(a)the Plaintiff voluntarily encountered and accepted the risk of sustaining personal injury, loss and damage.

The trial

At the time of the collision, there were four people in the vehicle: Mr Maggs, who was driving; the plaintiff, who was seated behind Mr Maggs; the plaintiff’s younger brother, Lachlan Norman,[5] who was seated in the front of the vehicle, next to Mr Maggs; and Thomas Sims, who was seated next to the plaintiff, and behind Lachlan. At the time of the collision, Mr Maggs was 18 years of age; the plaintiff was 17; Mr Sims was 17; and Lachlan was 15.
[5]Who we will refer to as ‘Lachlan’ or ‘Lachlan Norman’, rather than ‘Mr Norman’ so as to avoid confusing him with the plaintiff.
The plaintiff gave evidence at trial and called four other witnesses: Lachlan; Mr Sims; Dylan Bell, one of the plaintiff’s friends who had witnessed the vehicle being driven on the day before the collision, and who attended the scene following the collision; and Senior Constable Battisson, who conducted an investigation in relation to the collision. The defendant did not call any witnesses.[6] The balance of the evidence was documentary, consisting of police statements taken from Lachlan Norman and Mr Sims; a police brief compiled against Mr Maggs; photographs of the vehicle following the collision; photographs of the scene of the collision; photographs of the plaintiff’s injuries and scarring; medical reports; and the plaintiff’s amended writ and statement of claim.
[6]A solicitor employed by the defendant gave some evidence on a voir dire about the service of a subpoena on Mr Maggs and his subsequent refusal to give evidence. This evidence, however, was not led before the jury.
In light of the plaintiff’s proposed ground of appeal, it will be necessary for us to summarise the evidence given, and submissions made by the parties, at trial in some detail. Before doing so, however, we should set out the substance of the statements made to police by Lachlan Norman and Mr Sims. As we have already said, these statements were ultimately tendered, and formed part of the evidence, at trial.

The police statements of Lachlan Norman and Mr Sims

Lachlan Norman made his police statement on the day of the collision. The statement provided:
Today, the 12^th of September 2018, me, Aaron, Tom and my brother Hayden were bored and walked into Reef Hills for something to do.
We went looking for mineshafts and we came across the car. It was a Holden Rodeo ute, two-wheel drive.
We all jumped in it because it was unlocked. The rear windscreen was completely smashed and the front windscreen was almost non-existent.
I got in the front passenger seat. Hayden Norman got in the driver’s side passenger seat. Tom Sims got in the back passenger seat. Aaron Maggs got in the driver’s seat. The keys were in the ignition. Aaron turned the car on. We found it at the dam. Aaron drove us from the dam and back onto Reef Hills Road. It is a dirt road. He turned around to go back the other way.
Aaron began ‘fishtailing’ up the dirt road. We hit the loose dirt on the left side of the road. The car lost control and we hit the bushland. Aaron over-correct [sic] the car and we hit a dirt mound. I’m not sure if we got airborne, but it felt like we did. We then hit a large tree head on.
I looked around to check that everyone was okay. I climbed out the window and then helped everyone else out. I heard a car coming on Reef Hills Road so I ran out there to wave them down. It was my mate Dylan Bell. He was out looking for us. We all got in the car and came to the Benalla Hospital.
Mr Sims made two police statements: the first on the day of the collision; and the second, two days later.
In his first police statement, Mr Sims said:
We were doing skids at Reef Hills and we crashed. We found the car out there after people told us about it. We put a bit of fuel in it and the car keys were in it. Then we started doing skids.
Aaron was driving the car, Lachie Norman was in the passenger seat and I was behind him. Hayden Norman was next to me behind Aaron.
We were doing fishes down a main dirt road in Reef Hills. We were going 80, even more. We just gained traction and went off the road. We went through bushland before hitting a big tree. The tree stopped us.
Hayden was yelling and crying. Lachie and Aaron jumped straight out. Aaron was saying ‘It’s all my fault’ and ran off. I was just sitting in the car, Hayden was calling the ambulance and Lachie went chasing Aaron.
In his second statement, Mr Sims said that, when he said in his first statement that they found the car after someone else told them about it, that was ‘not the whole truth’. In his second statement, Mr Sims said:
4.The car was actually bought by Reece who I know through friends more than anything, he is a big bloke and has tattoos on his neck, arms, body and legs. Pretty much everywhere.
5.Reece bought the car on Tuesday for $400. I think he bought it locally.
6.Reece drove it out from Nicole’s to Reef Hills or ‘reefies’ on Tuesday night at about 7.30ish. We were doing skids and stupid shit on that night. It was Reece driving, Lachie NORMAN is the passenger seat [sic], I was sitting behind Reece. Jess CARROLL was next to me. Carly NORMAN and Aaron next to Jess. Hayden NORMAN, Dylan BELL, Dylan NORMAN were in the back in the tub.
7.Lachie swapped into driving and was jumping the car over a dam bank out in Reef Hills. I have footage on my iCloud system. Dylan NORMAN, Hayden NORMAN and Dylan BELL all have footage from this night.
8.We parked the car in a bush and Dylan BELL and Dylan NORMAN drove everyone back into Benalla. I think we got back at about 7.30.
9.Reece gave the keys to Lachie when we got back to Benalla and said ‘thrash it as much as you want’.
10.We went back out the Wednesday night with more fuel from Liberty Service Station. Jessie GILL went and bought the petrol. Everyone was keen and excited to go back out there to have more fun, trash the car and dump it.
11.Jessie took us back out to the car. Hayden was in the boot on the way out, Jessie was driving. Reece was sitting in the passenger seat, and I was sitting in the middle back seat between Lachie and Aaron. Lachie was on the right of me and Aaron was on my left.
12.Reece and Jessie got back in their car after we filled up the car with the petrol and they just sat there while we went and did skids.
13.The rest of what happened that night I have said in my previous statement to police.
14.Reece gave us permission to drive the car in the manner and I believe her [sic] bought the car for the purpose of running a muck [sic].
15.The car is a white old Holden Rodeo, dual cab with a tub. It was in shithouse condition. When we bought it there was no muffler or rego on it at all. On Tuesday night we smashed the windows, everyone had a turn.
16.The car inside had glass everywhere, there was no back seat. We laid down the back rest onto the ground so we had something to sit on.

Plaintiff’s opening

In the course of opening the plaintiff’s case to the jury, the plaintiff’s counsel opened the volenti defence in the following terms:
Now, the defence bases, or the defence base that Mr Norman should have known the type of driving that Mr Maggs was undertaking because a group of young men attended the same area and engaged in – and I’ll give you the description – ‘Careless, dangerous or reckless driving,’ this is the day before, on the 11th, ‘Including doing burnouts, smashing into bins and driving over rough and uneven terrain. Caused damage to the vehicle, including breaking the windows.’
So just to explain that a little bit further. The day before the accident a group of teenagers with a vehicle engaged in this driving, or this behaviour, and the defence to this case is because of this Mr Norman should have known that Mr Maggs was going to do similar things the next day. We say that’s nonsense. This is a simple situation. A single journey collision that practically lasted minutes on 12 September.
…
Now, Mr Maggs was charged, pleaded guilty and convicted of – amongst other offences – reckless conduct, endangering serious injury and driving in a manner dangerous causing serious injury. That’s not disputed. Now, the collision occurred, and we say the collision occurred along Reef Hills Road, or Reef is the abbreviated term in any event, but Reef Hills Road. It’s an unsealed road, it’s a country road, and Mr Maggs at some stage during the driving of that vehicle accelerated, lost control of the vehicle, hit an embankment and ended up with a tree, right up against a tree.
…
So a bunch of country boys, a bunch of teenagers together, all of them there. They were all there the day before and only the four of them were in the car on the day of the accident. There were others that were in that vicinity the day before where the allegation of reckless driving and burnouts and skids was going on. We don’t dispute that, that happened. We don’t shy away from that, that happened.
That didn’t cause anyone injury. But 12 September, keep this in mind, 11 September, 12 September. 12 September is when the accident occurred, 12 September is when Mr Norman suffered the injuries, not on the 11th.

Defendant’s opening

At the conclusion of the plaintiff’s opening, the judge gave the defendant’s counsel an opportunity to address the jury. During the course of the defendant’s opening, counsel told the jury that no duty of care existed to a passenger who got into a vehicle knowing that the driver was not going to be a reasonably prudent driver, but rather, one who was ‘there on a hoon, and hooning in the vehicle’. The defendant’s counsel then said:
And the law is if you know that reasonable care it not going to be taken so that it does create a risk, if the risk eventuates then there’s no duty on the part of the driver, that is to take reasonable care, to take reasonable care because it’s already known that he’s not going to, and the passenger has accepted that risk. As my friend has outlined to you, there’s a Tuesday afternoon and then a Wednesday afternoon. This happened on the Wednesday afternoon, Wednesday evening, around about, between 6 and 7.
They’d been out there the day before – this group of 17, 18, 19 year olds – hooning around in the vehicle. It was an old, as he said, Rodeo. The windows had been, all the windows had been smashed in before the particular journey we’re concerned about on the Wednesday evening. And various drivers had been in it doing skids as they say, and fishtails and so on, and then this particular driver just took his turn, was Maggs. And off he went, hooning. And lo and behold, surprise surprise, there’s an accident. Turned up here – and I should say bring a case against Mr Maggs, which is one of the teens involved in this hooning.
And that’s what we’re here for, members of the jury. That’ll be for you to determine, whether he did know of the risk, that is to say of Maggs not going to take reasonable care in all the circumstances – having regard to what was going on out there – and then did he accept staying in the car. We anticipate, members of the jury, you’re going to hear that the backseat of the car is effectively non-existent. That they ripped the – that there was no backseat as such – they ripped the back, it was the back padding of the rear cabin, of the cab I should say, off and used that as a temporary type of seat to sit on in the back.
All the windows were smashed out of it – rear, two sides, both sides, the front windscreen. What, going for a drive to have a look around the national park? Don’t think so. But in any event, members of the jury, see how it unfolds and see if there’s anything in what I’ve opened to you, as the case. And as you can see, it’s a very important issue, in our submission. And so that, we have a few little matters to say about the plaintiff injuries but the real issue is, was the plaintiff aware of the risk and did he simply accept the risk as to then ultimately what happened.

Evidence of the plaintiff

In evidence-in-chief, the plaintiff said that on 11 September 2018, he ‘attended at Reef Hills Road’ with his younger brother, Lachlan; his sister, Carly Norman; Mr Sims; Mr Maggs; Mr Bell; and Reece Lessley,[7] the owner of the vehicle. They all drove out to the area in a number of cars, and they were there for a couple of hours. While they were at Reef Hills Road, the vehicle was driven by both Lachlan and Mr Lessley.
[7]While the transcript of the plaintiff’s evidence spells this person’s name as ‘Rhys Leslie’, in other parts of the transcript the name is spelt ‘Reese Lessley’ or ‘Reece Lessley’. We will adopt the spelling used by Senior Constable Battisson in the police brief tendered at trial (Reece Lessley) as being the most likely to be correct.

When asked what sort of driving of the vehicle Mr Lessley did, the plaintiff said ‘Burnouts, handbrakies, as is described, fishtails um, so and forth’. When asked what sort of driving Lachlan did of the vehicle, the plaintiff said, ‘Ah, some silly driving and um, some normal driving’. When asked to give a description of Lachlan’s silly driving, the plaintiff referred to burnouts, handbrakies, fishtails and ‘launching a dam bank’. When asked to describe what launching a dam bank was, the plaintiff said, ‘Pretty much going over the speedhump real fast’.
When asked about the ‘normal driving’, the plaintiff said, ‘No silly driving’, ‘Driving around having a look at things’.
The plaintiff gave evidence that sometimes he was in the vehicle, and sometimes he was an observer or spectator. He did not drive the vehicle on either of 11 or 12 September. On 11 September, he was only in the vehicle when Lachlan drove it. He was not in the vehicle when Mr Lessley drove it. He was asked and answered the following questions:
And with respect to that, or what you observed, how did that make you feel? Was it fun, was it – how did you feel watching or being, we’ll do it, watching first. Was it enjoyable?---Some of it was pretty fun, yeah.
Yes. And when you’re a passenger in the vehicle and you said it was, you were a passenger in the car when Lachlan was driving it, were you a passenger in the car when he was doing the silly manoeuvres?---Some of it.
Yes. Was he in control of the vehicle?---Yes.
Even though he’s 15 years old?---Yes.
The normal driving that he undertook, how long would you have driven for – by way of even minutes, or hours, or timewise – how long would you have gone for a drive for?---Twenty minutes or so.
In his evidence-in-chief, the plaintiff said that he did not personally damage the vehicle and that, from his recollection, none of its windows were broken. He said that if evidence was given that the vehicle was damaged and the windows were broken at some stage, he would accept that.
The plaintiff gave evidence that on 11 September 2018, when he was travelling as a passenger in the vehicle, he was sitting on the rear seat, wearing a seatbelt. He said there was ‘definitely a full seat in the back’.
In his evidence-in-chief, the plaintiff said that the vehicle was left in the Reef Hills Road area when they finished driving it on 11 September. The next day (12 September), the plaintiff, his brother, Lachlan, Mr Maggs and Mr Sims were ‘dropped off by someone’ in the same area. The plaintiff was unsure of the time when they were dropped off, but said it was probably late afternoon.
The plaintiff said that on 12 September, the vehicle was driven by Lachlan and Mr Maggs. They were probably in the vehicle for maybe 45 minutes. The plaintiff said that Lachlan was the first driver of the vehicle. He drove for 10 to 15 minutes. His driving was ‘normal’. They were just ‘driving around the tracks’. No burnouts were performed; no skids were performed; no fishtails were performed; no dam bank jumping was performed; and no damage was done to the vehicle. As the plaintiff put it, ‘just normal driving’.
The plaintiff then gave evidence that Mr Maggs took over from Lachlan as the driver. The plaintiff was asked and answered the following questions:
All right. Do you know whether Aaron [Mr Maggs] had driven this car before? Do you know whether Aaron had driven this car before?---I don’t think so.
All right. So when Aaron got in the car, describe the journey that you went on in as much detail as possible?---Um, it was the same, normal driving, I don’t know, maybe 15 minutes or so, um, I don't know, he booted it and then lost control, hit an embankment, um, and into a tree.
Let’s pause for a second. Normal driving, 15 minutes or so, he booted it – what does that mean? What does, ‘He booted it,’ mean? Explain to the jury what your, I mean it’s your words that you’re using but what does, ‘He booted it,’ mean?

---Like literally foot flat.
Accelerated?---Accelerate, yeah.
All right. How long between that point, that acceleration point and the resting point up against a tree was there? What was the time?---Seconds.
And I want you to give as – and I know it’s nearly five years ago –- and I want you to give a description as best you can. So firstly, before he accelerated, did he tell you that’s what he was going to do?---There was no indication at all.
Did you think that that’s what he was going to do?---I didn’t, no.
Did he openly say something out loud of, ‘Boys, I’m about to, I’m about to thump it. I’ll give you all a chance to get out here’?---No.
Was there anything in your knowledge that would make you anticipate that that’s what he was going to do?---No, not at all.
And after he accelerated, do you recall the movements of the vehicle?---Ah, it happened pretty fast.
What happened from your memory?---Um, I remember hitting an embankment, ah, getting airborne and ploughing into a tree.
Right. Were you wearing a seatbelt?---Yes.
Passenger next to you was Thomas Sims, can you recall whether he was wearing a seatbelt?---He was wearing a seatbelt.
Were you sitting on a seat?---Yes.
After the car came to rest up against the tree, what happened to you? What did you do, what were your movements?---Um, I think I called the, I’m pretty sure I called the ambulance.
Yes. Did you get yourself out of the car?---I did, eventually.
All right. Where were the other lads?---Ah, they ran off.
All of them? They left you on your own?---Yeah.
The plaintiff gave evidence that the ambulance he called did not arrive at the scene. Ultimately, his brother[8] and Mr Bell turned up. The plaintiff said that they found him a couple of metres from the vehicle and took him to the Benalla Hospital.
[8]It would appear from the evidence of Lachlan Norman that the unnamed brother referred to by the plaintiff in this part of his evidence was a third brother, Dylan Norman.
In cross-examination, the plaintiff agreed that he had been riding motorcycles since he was four or five years old. When agreeing to that proposition, he said, ‘Cars also, yes’.
The plaintiff was cross-examined about whether Mr Maggs had a licence to drive a motor car. He said that he believed that Mr Maggs was licenced. When it was put to him that Mr Maggs had never held a licence, or even a learner’s permit, he said, ‘Well I didn’t know that’.
The plaintiff was cross-examined about evidence he had given that the vehicle was registered at the time of the collision. He was asked and answered the following questions:
Evidence will be called that the vehicle hadn’t been registered since 2013?

---How am – how was I meant to know that.
Well, why did you say it was registered?---It had the plates. How was I meant to know?
Evidence will be given that it didn’t have plates?---I’ll accept that.
You’ll accept that?---I’ll accept that.
But your reason for telling this jury that it was a registered vehicle was that it had plates?---I’m not gonna, oh, you got your car registered, mate or - - -
No, your reason on your oath yesterday to say that it was a registered vehicle was because it had plates, correct?---Correct.
And I’ve just put to you evidence will be called that it didn’t have plates and you go straight out I’ll accept that?---It had plates.
Well, I’m putting to you straight out that it didn’t, and evidence will be given that it didn’t have plates. And indeed, we’ll see photos of it taken on the day?

---That’s fine.
What’s fine about it?---What do you mean?
You say that’s fine, what do you mean?---Well, you’re not gonna believe me, so –
Well, I’m going to call evidence that it wasn’t registered since 2013?---Anyone could’ve taken plates off, you know, it was left there a night, you never know.
In cross-examination, the plaintiff conceded that the ‘silly driving’ could cause ‘some danger’, and that it was ‘potentially unsafe’ and ‘risky business’ — the risk being that ‘you can end up having an accident’. The plaintiff accepted that on the Tuesday (11 September 2018), he was in the vehicle when burnouts, handbrakies, fishtails and dam banks were performed. He regarded these as fun, despite the fact that they ‘create[d] a risk’.
The plaintiff was extensively cross-examined about why he went out to the area where the vehicle was on 11 and 12 September 2018. In the course of that cross-examination, he was asked and answered the following questions:
What I’m putting to you is that the whole purpose of the exercise was to trash the car. On the Tuesday and again on the Wednesday?---No.
And exactly what I’m suggesting to you was the purpose of the exercise commenced on the Tuesday with this silly driving, as you described it?---Ah, I don’t know how to answer that.
And smashing in the windows?---I don’t recall that.
And that was the purpose of going out there again the next day?---I don’t think so.
To trash the car. And that that was, the conduct that you’ve described that occurred on the Tuesday I suggest to you was exactly the type of conduct that continued on on the Wednesday?---No.
Would you be able to tell the jury this, was there someone that was leading the gang as it were, leading the group on the Tuesday in the silly driving?---I don’t remember.
Because one thing’s for sure, Lachie was driving on the Tuesday, correct?

---Yes.
And he was involved in silly driving?---Yes.
But suddenly on the Wednesday, you say, he wasn’t involved in silly driving?

---There was no silly driving on the second day.
He’d mended his ways overnight, is that right?---Sure.
Sure?---Mended, what – I don't know.
At the age of 15?---What do you say by mended?
He improved his behaviour, ‘Not gonna do silly driving today’?---Well there wasn’t, no.
Did you discuss with them what was going to happen that day? That is, the other people going out?---The second day?
Yes?---I couldn’t tell you.
Because what would be the purpose of going out there?---I’m not sure.
On a Wednesday evening?---I honestly don’t remember.
…
It’s ridiculous, isn’t it? To go out on the second day and get into a bashed up car and have a little drive in it. Just a waste of time?---Ah, I don’t remember the reason.
Except that you had an idea that there was going to be a bit of thrill-seeking going on, as you’d done in the past?---Like I told you numerous times, I don’t recall, I don’t remember.

Evidence of Lachlan Norman

In his evidence-in-chief, Lachlan Norman said that he had been riding motorcycles from the age of five or six, and driving motor vehicles from the age of eight or nine. He recalled ‘heading to Reef Hills Road with a number of friends’ on Tuesday 11 September 2018. These included the plaintiff, Mr Sims, Mr Maggs, Mr Lessley, Jess Carroll and Jessie Gill. He thought there were maybe seven of them. He said he thought they were at Reef Hills Road for maybe half an hour, but it might have been longer.
Lachlan described the driving on that day (the Tuesday) as, ‘Mostly it was just driving, touring around, but I did do a couple of little wheelies and … a few loops and whatnot’. He explained a loop as being ‘spin the wheels a bit’, ‘put it sideways’, ‘a fishtail’:
Really nothing too fast, nothing like that, mainly in the spot or intersection or something.
He also agreed that he did burnouts and was involved in the driving on a dam bank, saying:
Yeah we, um, ah, drove it just a, like a bit of a mound, just got a little bit of air.
Lachlan said that both he and Mr Leslie drove the vehicle on the first day (Tuesday). There were passengers in the vehicle when he drove it. His evidence was that Mr Maggs did not drive the vehicle on the first day, but drove it on the second day. At the conclusion of the first day, the vehicle was left ‘in Reef Hills’.
In evidence-in-chief, Lachlan was asked whether he thought ‘the stuff that [he was] doing was smart’. He said:
No, it was stupid and reckless I guess.
Lachlan gave evidence that the vehicle was left at the end of the first day in a condition that was ‘not overly, not too bad really’. He said that the body of the vehicle was ‘pretty straight, had a couple of dints and scratches’ and its windows were intact. As to whether the vehicle was registered, he said, ‘I think it was but ah not to my knowledge that, that I know’.
Lachlan gave evidence that he, the plaintiff, Mr Maggs and Mr Sims returned to the scene the next afternoon (Wednesday). The vehicle was in the same spot where it had been left, and in a similar condition to when it was left the previous day. Asked how he would describe the condition of the vehicle generally, he said:
Ah, it was pretty, looked pretty road registerable, fine.
Lachlan was asked what his intention with respect to the vehicle was on the second day. He said, ‘Ah, we just went out literally just to drive around, tour around’. He said that he drove the vehicle for 10 to 15 minutes maybe, and he drove it ‘responsibly’, ‘just touring around’. Mr Maggs asked to drive the vehicle, and the witness let him. He had never seen Mr Maggs driving the vehicle before. Mr Maggs drove the vehicle ‘fine at first for 10–15 minutes maybe’. Lachlan was then asked and answered the following questions:
What happened then?---Well, we were driving normal at first, fine, and then, um, I don’t know, at the last minute he put his foot down and lost it and straight off into the embankment which is the bush.
Did the vehicle go straight or sideways or how did it go?---Um, well, we were going straight and the when he – when he put his foot down to accelerate the car it swayed to the side and watched the headlights head towards the trees.
Like a fishtail?---Yeah, the arse, back end kicked out.
Between Aaron [Mr Maggs] accelerating and the vehicle coming to rest at the tree when the collision occurred, can you estimate what period of time there was?---Nuh, it was seconds. Yeah, like, it all - it happened that – that quick.
Did he give you any indication he was going to do that?---No, not like – not whatsoever.
Nothing verbal, nothing – ‘I’m about to thumb it, boys,’ nothing like that?

---Nuh, he just put his foot down and then it just happened that quick, the car went sideways.
Did he give you an opportunity at any stage to get out of the car?---No.
In evidence-in-chief, Lachlan said that the windscreen was completely smashed as a result of the collision.
In cross-examination, Lachlan was asked how his memory was of the events that occurred in September 2018. He responded, ‘Ah, not the best’. He agreed that his memory would have been better on the day of the collision than it was at the time of trial.
Lachlan was extensively cross-examined about the differences between what he said in evidence-in-chief, on the one hand, and what he said in his police statement, on the other hand. Asked about whether particular parts of his police statement were the truth, and whether he did his best to tell the police the truth, he responded, ‘Ah, I honestly don’t know’. He said that he did not know whether he told the police the truth or whether he lied to them. He said, ‘I can’t really remember mate’, and ‘I don’t know, was a long time ago mate’.
In re-examination, Lachlan said that the police statement contained his signature, but was not in his handwriting. He did not remember making the police statement.

Evidence of Mr Sims

In his evidence-in-chief, Mr Sims said that on 11 September 2018, he was at Reef Hills Road. He observed Lachlan Norman and Reece Lessley driving the vehicle. Asked about the condition of the vehicle, he said, ‘Yeah, it was fine’. He said it had numberplates (and so he thought it was registered) and it had seats. Asked to describe the type of driving that occurred on 11 September, he said, ‘Oh, bit of normal driving, few skids here and there but, yeah’. Asked to explain to the jury what he meant by ‘skids’, he said, ‘Oh, just hanging it sideways here and there, but, yeah’. Mr Sims was asked and answered the following questions:
We’ll go through it one by one. Were there burnouts done?---Nah, I wouldn’t say burnouts but like, yeah, going around the bend and sliding it out a little,

but - - -
Like fishtails?---Yeah.
Handbrakeys?---Yeah, could be.
Mr Sims’ evidence was that the vehicle was left overnight. He could not recall the state the vehicle was left in, but said it would have been the same state in which they had found it. He went back to the scene the next day. He did not remember how he got there. On the second day (12 September 2018), Lachlan Norman ‘drove it for a bit’, about 10–15 minutes. Asked to describe Lachlan’s driving, Mr Sims said, ‘Fine, normal, just driving around’.
Mr Sims’ evidence was that Lachlan then gave the keys to Mr Maggs. Asked how Mr Maggs’ driving was, Mr Sims said, ‘Fine’.
In respect of the lead-up to the collision and the collision itself, Mr Sims was asked and answered the following questions:
Can you explain what happened just prior to the happening of the collision?

---Just driving along and then, yeah, just ended up in the scrub.
How would you describe Aaron’s driving?---Oh, while it happened or - - -
Yes?---Yeah, oh, I don’t know.
Just doing the best from what you can recall?---Oh, ah, he was driving along fine until, yeah, he reefed it, lost control and ended up in scrub.
Between – what’d you say, that he reefed it?---Oh, wouldn’t say reefed it but, yeah, it’s like - - -
I don’t know what that means by the way, I just want you to explain, ‘He reefed it.’ What was that?
HER HONOUR: I thought he said he – what did you say?---Just lost it.
What was the word you used? Did you say reefed?---Yeah. I don’t know, it was like he lost control and, yeah, planted it in the bush.
[PLAINTIFF”S COUNSEL]: Did he accelerate? What did he do?---Yeah I think he just keep his foot on the accelerator.
All right. And did he give you any indication that he was going to do that?

---No.
Between him accelerating and the vehicle hitting the tree, can you estimate how long that took?---It felt like five seconds - - -
Yes?--- - - - but, yeah. Felt like we were in there forever.
Did he give you an indication he was going to do that?---No.
Did he give you any warning that he was going to do that?---No.
Did you have any idea that he was going to do that?---Nope.
Asked again about the condition of the vehicle on the first day, Mr Sims said that it was fine; the windows were intact; it contained the seat and had registration plates.
In cross-examination, Mr Sims was asked how his recollection of the events of September 2018 were. He said, ‘Shocking’. Mr Sims was then taken in detail through his police statements. He agreed that he had ‘signed off’ on his first police statement. He also agreed that, after having second thoughts, he went back to the police station two days later to make his second police statement, which he also ‘signed off on’. He agreed that he was honest with the police and tried to tell them what happened; and that, as at 14 September (the date of the second police statement), he was ‘doing [his] best to relate the events of what had occurred over the previous couple of days’.
In re-examination, Mr Sims said that he went out to the scene on the second day ‘to just go for a bit of a drive’ and without ‘any intention to do any stupid stuff’.

Other witnesses

For present purposes, it is not necessary to summarise the evidence given by the remaining witnesses (Mr Bell and Senior Constable Battisson).

Final addresses and charge

In final address, counsel for the defendant submitted that the plaintiff appreciated the nature and extent of the risk which eventuated, having ridden motorcycles, and driven cars, since before he was five or six. Counsel submitted that anyone would be aware of the nature and extent of the risk of travelling at 80 kilometres an hour,[9] fishtailing on a gravel road. Counsel described the risk as ‘Snak[ing] into a tree and be[coming] severely injured’.
[9]The figure of 80 kph was obviously taken from the first police statement made by Mr Sims (see [15] above). However, the jury had other evidence suggesting that the vehicle was travelling at a much greater speed prior to the collision. For example, Senior Constable Battisson recorded in the preliminary brief that Mr Maggs estimated his speed while fishtailing at between 100 and 120 kilometres per hour; and the plaintiff was recorded in some of the medical reports tendered at trial to have said that he estimated the vehicle was travelling at 130 kph when it left the road at a curve.

Counsel for the defendant submitted that the plaintiff freely and voluntarily agreed to incur the risk which eventuated when the collision occurred. In making that submission, counsel noted that the plaintiff’s answer to the defendant’s volenti defence was to accept that, while the driving engaged in on the Tuesday (11 September 2018) involved an acceptance of the risk of injury, the driving engaged in on the Wednesday (the day of the collision) was different and did not involve any agreement to the incurring of any risk of injury. The defendant’s counsel then said of this answer:
It beggars belief, in my submission. He [the plaintiff] had the same driver; the 15-year-old who kicked it off.
In his final address, plaintiff’s counsel (who addressed the jury after the defendant’s counsel) observed that what the defendant was trying to do was to link the behaviour on 11 September with the events of 12 September. Plaintiff’s counsel said that this was impossible. He submitted that it insulted the intelligence of the jury:
... to suggest that on that road where the accident occurred you could possibly be doing donuts and brakeys and dam jumping, there’s not even room for a three-point turn. It’s so far removed from what occurred on 12 September to beggar belief.
The plaintiff’s counsel submitted that what was ‘missing on day two’ was:
There’s no spectators, there’s no stupidity, there’s no reason for doing donuts and brakeys and any of that stuff, there’s none of that.
Plaintiff’s counsel submitted that there was no suggestion that Mr Maggs was doing skids, burnouts or dam jumps. Mr Maggs was driving normally, ‘and that’s in the evidence across the board for [scil, from] everyone who was there’.
Plaintiff’s counsel submitted that there were only ‘seconds of bad driving’, and the proposition that the plaintiff knew that bad or silly driving was going to happen and voluntarily accepted it was ‘Garbage, absolute garbage’.
Following the conclusion of final addresses, the trial judge charged the jury in conventional terms (to which no exception was taken by the parties, either at trial or in this Court) on the law of volenti non fit injuria. In the course of doing so, her Honour identified the competing positions that had been taken by the parties in their final addresses. In her charge, and in a ruling to which we will refer in a moment, the judge identified the risk relied upon by the defendant in support of the volenti defence as, ‘the risk of being injured by careless or reckless driving’. Again, no objection was taken by the plaintiff’s counsel to this description of the risk.

Application to set aside jury’s verdict

For completeness, we should mention one further matter which occurred at trial: the circumstances leading to, and the delivery of, the ruling to which we have just referred.
The jury’s verdict was delivered on 13 September 2023. Following its delivery, pursuant to leave earlier granted by her Honour, the plaintiff applied to set aside the jury’s verdict on the volenti defence.
After hearing argument on 13 September, and after reserving overnight, on 14 September 2023, the judge delivered a detailed ruling in which she dismissed the plaintiff’s application to set aside the jury’s verdict.[10]
[10]Norman v Transport Accident Commission (unreported, County Court of Victoria, Judge Robertson, 14 September 2023) (‘Ruling’).
That being said, while the Ruling throws light on the way in which the case was conducted by the parties at first instance, there is no appeal from the judge’s dismissal of the plaintiff’s application. An appeal from the judge’s refusal to set aside the jury’s verdict would, in the circumstances of this case, have been otiose for like reasons to those given by this Court in respect of a similar ruling in Kiriwellage v Best & Less Pty Ltd,[11] where the trial judge in that case dismissed an application to set aside a jury’s verdict on an issue of contributory negligence.
[11][2013] VSCA 355, [15].

Plaintiff’s submissions in this Court

In his written case, the plaintiff referred, and quoted from, a number of authorities dealing with the defence of volenti, including Letang v Ottawa Electrical Railway Company,[12] Roggenkamp v Bennett,[13] Woods v Multi-Sport Holdings Pty Ltd,[14] Randwick City Council v Muzik[15] and Carey v Lake Macquarie City Council.[16] For example, in Roggenkamp, the plaintiff relied on the following passage in the joint judgment of McTiernan and Williams JJ:
Taking the defence of volenti non fit injuria, the onus was on the respondent to prove this defence. The elements of the defence are conveniently stated in Halsbury’s Laws of England, 2nd ed, vol 23, at pp 716–718. There it is said that ‘In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of danger, for this alone would be insufficient, but also that he fully appreciated it and voluntarily accepted the risk. The question whether the plaintiff’s acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from his conduct in the circumstances’.[17]
[12][1926] AC 725, 731.
[13](1950) 80 CLR 292, 300 (‘Roggenkamp’).
[14](2002) 208 CLR 460, 499 [125].
[15][2000] NSWCA 66, [48].
[16][2007] NSWCA 4, [75]–[76].
[17]Roggenkamp (1950) 80 CLR 292, 300.
The plaintiff submitted that this passage and passages to like effect in the other decisions he relied upon were authority for the proposition that in order to establish a defence of volenti, the following elements had to be established:
(a)first, that the plaintiff knew that there was a risk in engaging in certain conduct;
(b)secondly, that the risk has been adequately defined;
(c)thirdly, that the plaintiff freely and voluntarily engaged in the risk;
(d)fourthly, that the plaintiff had full knowledge of the nature and extent of the risk; and
(e)fifthly, that the acceptance of the risk was voluntary.
The plaintiff observed that Mr Maggs had not driven the vehicle on 11 September 2018 when it had been used by other people for purposes which included joyriding, brakeys, fishtails and burnouts. He then referred to the evidence-in-chief of the plaintiff, Lachlan Norman and Mr Sims, where they each said that, on 12 September 2018, the driving was normal until the last minute, when Mr Maggs ‘booted it’, or ‘reefed it’, or ‘put his foot down’ and lost control; and that this had occurred without any indication or warning from Mr Maggs.
The plaintiff submitted that this evidence was ‘the central evidence on the central issue and [fell] well short of the legal requirements to establish a defence of volenti non fit injuria’.
The plaintiff contended that the evidence of driving by other persons on 11 September 2018 ‘was irrelevant to the central issue for consideration, namely the driving of [Mr] Maggs on 12 September 2018’. The plaintiff concluded his written submissions by saying that:
The evidence of [the plaintiff] that he did not perceive a risk in engaging in conduct, namely being a passenger in a vehicle driven by Maggs is supported by each of the other passengers in that vehicle. Neither [the plaintiff], nor for that matter any of the other passengers, could be said to have freely and voluntarily engaged in the risk, or to have had full knowledge of the nature and extent of the risk.
Further, given the lack of forewarning of the conduct in which Maggs engaged whilst driving the vehicle, it is submitted that the risk was never, within the ambit of the authorities to which reference has been made, ever adequately defined in evidence. The evidence established that Maggs, driving this vehicle for the first time, engaged in an entirely unanticipated course of conduct as evidenced by each of the victims to that conduct.
The finding of volenti non fit injuria made by the jury ought not to have been made on the evidence which was before it.
In oral argument, the applicant submitted that, in order for the jury to find that the volenti defence had been made out, the jury must have engaged in impermissible tendency reasoning to link the driving engaged in on 11 September with that engaged in on 12 September. Notwithstanding the absence of any ground of appeal complaining about the possible use of tendency reasoning, the applicant contended that the tendency reasoning process the jury must have engaged in was impermissible on a number of bases, not the least of which was that no tendency notice had been served by the respondent as required by s 97 of the Evidence Act 2009.
As part of, or in explication of, this submission, the applicant submitted that it was simply not open to the jury to link the driving on 11 September with the driving on 12 September because, on 12 September, Mr Maggs was a ‘new driver’, who had not driven on 11 September. It was submitted that there was no basis upon which the jury could have concluded that the plaintiff (or indeed any other passenger in the vehicle) could have realised that Mr Maggs might drive recklessly or carelessly on 12 September, he not having driven the vehicle (recklessly or otherwise) on the previous day.
Consideration
A defendant seeking to establish the defence of volenti non fit injuria must prove that the plaintiff, against whom the defence is alleged, freely and voluntarily, with full knowledge of the nature and extent of the risk he or she ran, impliedly agreed to incur it.[18] As was said in the passage in Roggenkamp on which the plaintiff relies,[19] the question of whether a plaintiff’s acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from the conduct in the circumstances. We should note, however, that that passage[20] then goes on as follows:
The inference [of the voluntary acceptance of the risk] may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as, for example, where the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not.[21]
[18]Imbree v McNeilly (2008) 236 CLR 510, 536 [81] (Gummow, Hayne and Kiefel JJ). See also Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289, 291 (Nicholson J).
[19]Set out at [65] above.
[20]Being a passage from Halsbury’s Laws of England, 2^nd ed, vol 23, at pp 716–718.
[21]Roggenkamp (1950) 80 CLR 292, 300 (McTiernan and Williams JJ).
That said, in order to succeed in this Court, and to obtain an order overturning the jury’s verdict, the plaintiff must persuade us that it was not open for the jury to have found that the volenti defence had been made out. An appellate court is not entitled to set aside a jury’s verdict merely because the verdict is different from that which it would itself have reached. In considering the question of whether or not it was open to a jury to reach the verdict it reached, an appellate court must approach the case on the basis most favourable to the respondent to the appeal or proposed appeal. Specifically, an appellate court must assume that the jury took a view of the evidence most favourable to the respondent.[22]
[22]Coyne v Citizen Finance Limited (1991) 172 CLR 211, 222 (Dawson J), 227–8 (Toohey J) and 239 (McHugh J); Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 42 (Mason CJ, Deane, Toohey and McHugh JJ); John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, 1660 [17] (McHugh J), 1698–9 [183]–[185] (Callinan J); Fassbender v HW & MTA Bohlmann [2010] VSCA 204, [19] (Warren CJ and Emerton AJA), [75] (Nettle JA); Aycicek v Flowline Industries Pty Ltd [2019] VSCA 37, [50] (Beach, Kyrou and Emerton JJA).
For the reasons which follow, the plaintiff’s submissions are, and the proposed ground of appeal is, without substance and must be rejected.
First, the plaintiff’s submissions seek to confine the evidentiary material to be examined to three short passages in the evidence-in-chief of three of the witnesses (the plaintiff, his brother Lachlan, and Mr Sims). There is no basis for such a confinement. The question of whether it was open to the jury to reach the verdict it reached must be examined by reference to the whole of the evidence, including the police statements made by Lachlan Norman and Mr Sims.
If the jury accepted the evidence of Lachlan and Mr Sims as set out in their police statements (as they were entitled to), they would have concluded that, contrary to the oral evidence given by those witnesses and the plaintiff, the driving on the day of the collision was intended to be, and was, as ‘silly’ (or risky) as that which had been engaged in on the first day. In particular, it would have been open to the jury to conclude that, while Mr Maggs was driving, he was ‘doing fishies’ and doing ‘skids’, while travelling at a speed of at least 80 kph on a dirt road. Further, that ‘everyone’ was excited to go back out to have ‘more fun, trash the car and dump it’.
Secondly, the jury had the benefit of seeing the plaintiff, Lachlan and Mr Sims give evidence. From a mere reading of the transcript, they do not appear to have been impressive witnesses. The evidence of each of them that the driving on the second day was intended to be, and was, materially different from the driving on the first day, and that Mr Maggs inexplicably departed from that style without warning moments before the collision, was evidence the jury was entitled to reject in all the circumstances. Indeed, in our view, it would have been surprising if the jury had accepted that evidence. It was inherently implausible, and totally at odds with the more contemporaneous statements which had been made to police.
Thirdly, there is no basis for the plaintiff’s assertion that the evidence of what occurred on the first day was irrelevant to the circumstances of driving on the second day. The jury was entitled to take the view that, contrary to the evidence now relied upon by the plaintiff, it was more probable than not that the activities of the first day were intended to be, and were, repeated on the second day.
Fourthly, the applicant’s submissions about the jury engaging in impermissible tendency reasoning cannot be accepted. No party invited the jury to engage in tendency reasoning. The respondent’s case was that the relevant group intended to, and did, engage in reckless or hoon driving on 11 September; and then a subset of those same people intended to, and did, engage in the same kind of driving on 12 September. No objection was taken at trial by the applicant’s counsel that the respondent’s case at trial invited the jury to engage in tendency reasoning which required compliance with s 97 of the Evidence Act. Moreover, as part of her Honour’s detailed and careful charge to the jury, the judge gave a specific direction that the jury must not engage in any tendency reasoning. There is nothing in the transcript of the trial that provides any basis upon which it might be contended that the jury did not comply with this direction.
Fifthly, contrary to the applicant’s submissions, the mere fact that Mr Maggs did not drive the vehicle on 11 September, and was only a spectator to the reckless driving which occurred on that day, did not compel the conclusion that the driving on 11 September was wholly irrelevant to the determination of what kind of driving was engaged in on 12 September. For the reasons we have already given, it was well open to the jury to conclude that, notwithstanding the fact that Mr Maggs did not drive on 11 September, all of the passengers in the vehicle were there for the purpose of the vehicle being driven in a careless and reckless manner in the same way it had been driven on the previous day.
Sixthly, the essential dispute at trial was whether the activity and driving on 11 September was repeated on 12 September. There was no dispute about whether the risk asserted by the defendant had been ‘adequately defined’. No argument was addressed to the definition of the risk asserted by the defendant; nor was any argument directed to whether the plaintiff had full knowledge of the nature or extent of the risk in travelling in a vehicle which was being driven in the way it was driven on the first day. The case was conducted on the basis that if the defendant persuaded the jury that the participants on 12 September knew that the vehicle was to be driven in the same way it was driven on 11 September, then it would be open for the jury to conclude that the volenti defence had been made out.
Moreover, at no stage during the trial did the plaintiff seek to contend that he did not fully appreciate the risk of travelling in a vehicle at 80 kilometres an hour, fishtailing on a gravel road. Once the jury concluded (as they were entitled to) that this is what was planned to occur, and what in fact did occur, on the day of the collision, it was open to them to conclude that the plaintiff, with full knowledge of the nature and extent of the risk involved, voluntarily agreed to accept that risk. The plaintiff’s attempts to put in issue in this Court what was not put in issue by him at first instance must be rejected.
In any event, we see no relevant lack of particularity in the description of the risk as it was expressed at trial; nor any basis for concluding that it was not open to the jury to conclude that the plaintiff, with full knowledge of the nature and extent of that risk, freely and voluntarily accepted and engaged in the risk.
What we have said above is sufficient to dispose of the plaintiff’s application for leave to appeal. However, for completeness, we wish to address one further topic.
During the course of the evidence of the plaintiff, Lachlan Norman and Mr Sims, a not insignificant amount of time was spent debating whether the vehicle was in a poor condition (all windows smashed, missing its rear seat and not registered). The contest was between the evidence in the police statements that the vehicle was in a very poor condition prior to the collision, and the oral evidence of the plaintiff and his witnesses that the vehicle’s condition was ‘fine’.
While, on one reading of the defendant’s defence, it might be thought that the defendant contended that there was a risk of injury in being driven in a damaged or unregistered vehicle, the defendant’s case at trial was, as we have explained it, more limited — involving a contention that the plaintiff (with full knowledge) voluntarily accepted the risk of being injured arising from being driven in a vehicle doing fishtails at 80 or more kph on a dirt road.
The relevance of the poor condition of the vehicle was explained by the defendant’s counsel in his opening address: namely, that it was unlikely that the plaintiff and his friends, on the day of the collision, were just ‘going for a drive to have a look around the national park’, given the poor condition of the vehicle as described in the police statements. Thus, at trial, the condition of the car went not to the issue of risk per se, but to the likelihood of the type of driving that was engaged in on the day of the collision.
Moreover, for the reasons we have already given, it was well open to the jury to accept that the vehicle was in the condition described in the police statements, and thus reject the oral evidence of the plaintiff and his witnesses as to the type of driving which was undertaken on 12 September 2018.

Conclusion

The plaintiff’s proposed appeal has no real prospect of success. Accordingly, leave to appeal must be refused.
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[2024] VSCA 123

7 June 2024