Oran Park Motor Sport Pty Ltd v Fleissig - [2002] NSWCA 371

No judgment structure available for this case.

Reported Decision:
(2002) Aust Torts Reports 81-656

New South Wales

Court of Appeal

CITATION: Oran Park v Fleissig; Teamfox v Fleissig [2002] NSWCA 371

FILE NUMBER(S): CA 40336/01; 40359/01

HEARING DATE(S): 12 August 2002
13 August 2002

JUDGMENT DATE:
15 November 2002

PARTIES :

Oran Park Motor Sport Pty Limited
Eric Fleissig
Teamfox Pty Limited

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 53; Einstein AJA at 73

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 21227/96

LOWER COURT
JUDICIAL OFFICER : Brownie AJ

COUNSEL: R McIlwaine SC (Oran Park)
P W Neil SC/J Carr (Fleissig)
D Higgs SC/G Charteris (Teamfox)

SOLICITORS: Marsdens Solicitors (Oran Park)
Bateman Battersby (Fleissig)
P W Turk & Associates (Teamfox)

CATCHWORDS: personal injury - brain injury - workers compensation - damages - contribution - negligence - inadequate reasons - whether disabilities exaggerated - whether evidence reliable - voluntary assumption of risk

LEGISLATION CITED: Workers Compensation Act 1987 (NSW), ss 151G, 151H, 151J, 151M

CASES CITED:
Blatch v Archer (1774) 1 Cowp 63
Armory v Delamirie (1722) 1 Stra 505, 93 ER 664
Jones v Dunkel (1959) 101 CLR 298
Ho v Powell (2001) 51 NSWLR 572
Moriarty v London Chatham & Dover Railway Co (1897) LR 5 QB 314
Moran v McMahon (1983) 3 NSWLR 700
State of New South Wales v Gee [2002] NSWCA 326
Roggencamp v Bennett (1950) 80 CLR 292
Canterbury Municipal Council v Taylor [2002] NSWCA 24
Woods v Multi-Sport Holdings (2002) 186 ALR 145

DECISION: Appeal dismissed with costs

CA 40336/01
CA 40359/01
CL 21227/96

BEAZLEY JA
HODGSON JA
EINSTEIN J
Friday, 15 November 2002

ORAN PARK MOTOR SPORTS PTY LIMITED v FLEISSIG

TEAMFOX PTY LIMITED v FLEISSIG

FACTS

The first respondent (Mr Flessig) sustained personal injuries while taking part in a go-kart race at the Oran Park Raceway on 11 March 1992. He sustained some physical injuries and a significant frank brain injury.

The first respondent brought proceedings against the appellants (Oran Park Motor Sport Pty Ltd (OPMS) and Teamfox Pty Ltd), amongst others, claiming damages for negligence. A principal issue of liability involved whether one or more of the appellants should have ensured that proper padding was in place on the inner side of the wall bordering the corner where the accident occurred. Further issues arose as to whether the first respondent had voluntarily assumed the risk of injury and also whether a defence of contributory negligence was available to the appellants.

Brownie AJ held at first instance that a duty of care was owed by the appellants. The defences of voluntary assumption of risk failed. His Honour found both appellant’s equally liable for the damages suffered by the first respondent, with a 10 per cent reduction for the first respondent’s contributory negligence.

Both appellants appealed against liability and damages, especially as to the amount awarded for future economic loss.
HELD per Einstein J (Beazley JA and Hodgson JA agreeing)

(i) The trial judge did not err in finding that the appellants breached their duties owed to the first respondent. The risk of injury by impact with the wall was foreseeable and could have been averted or minimised.

(ii) The trial judge did not err in finding that the breaches of duty caused or materially contributed to the injuries of the first respondent.

(iii) The trial judge did not err in finding that the appellants failed to establish that the first respondent voluntarily assumed the risk of injury. Observations as to the application of the principle in an employee/employer situation: Bowater v Rowley Regis [1944] KB 476 at 480 per Goddard LJ.

(iv) The trial judge did not err in relation to the 10 per cent apportionment for contributory negligence.

(v) The trial judge did not err in finding the appellants equally responsible for the damage suffered by the first respondent.

HELD per Beazley JA (Einstein J agreeing)

(i) The trial judge’s awards for future economic loss and non-economic loss were within an ‘appropriate discretionary range’ for damages in this case.

HELD per Beazley JA (Hodgson JA agreeing)

(i) The trial judge did not err in failing to give adequate reasons for his decision on damages.

Held per Hodgson JA (Beazley JA and Einstein J agreeing)

(i) Evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63

Held per Hodgson JA

(i) The trial judge’s awards for future economic loss and non-economic loss were excessive. In circumstances where there was an absence of reliable evidence because the first respondent had given deliberately false evidence, the trial judge should have resolved the resulting uncertainty as to the loss caused to the first respondent generally in favour of the appellants.

ORDERS

Appeal dismissed with costs.
********

CA 40336/01
CA 40359/01
CL 21227/96

BEAZLEY JA
HODGSON JA
EINSTEIN J
Friday, 15 November 2002

ORAN PARK MOTOR SPORT PTY LIMITED v FLEISSIG

TEAMFOX PTY LIMITED v FLEISSIG

JUDGMENT

1 BEAZLEY JA: There are two appeals before the Court, each challenging the trial judge’s determination on both liability and certain aspects of damages. Einstein J provided the Court with an early draft judgment in respect of liability with which I agree and do not wish to make any additional comment. Accordingly, I confine my following reasons to the question of damages.

Damages

2 The appellants appeal against his Honour’s award of damages as being excessive. In particular, the appellants challenge his Honour’s decision in respect of future economic loss, contending that, notwithstanding his finding of frank brain injury, there was no evidence to support any, or any significant, interference with economic capacity. They also claim his Honour failed to give adequate reasons for his decision in awarding continuing economic loss.

Injuries

3 His Honour found that the respondent was seriously injured in the accident, sustaining soft tissue injuries, a fracture of the right wrist and fractures of four spinal vertebrae. His Honour assessed the respondent’s physical impairment at about 10% of a most extreme case.

4 His Honour also found that the respondent suffered “some significant brain damage in the accident”. In this regard, he accepted Professor Broe’s evidence that the respondent:

“had shear injuries on both sides of the frontal lobe, at the cortical white matter junction on one side, and the anterior horn of the ventrical white matter junction on the other side, associated with thinning of the corpus callosum and with atrophy of the frontal lobes.”

5 His Honour concluded that the respondent suffered:

“significant brain damage, and this considered with his spinal injuries, constitutes a serious injury for the purposes of s 151H of the Workers Compensation Act, resulting in the [respondent’s] ability to lead a normal life being significantly impaired for the purposes of s 151G [of the Act].”

Workers Compensation Act

6 However, his Honour also found that the respondent had “exaggerated his disabilities, deliberately and fraudulently”. These findings, which are not challenged by the respondent, made his Honour’s assessment of the respondent’s economic loss particularly difficult.

7 His Honour awarded the respondent non-economic loss against Teamfox assessed on the basis of one third of a most extreme case, amounting to the sum of $68,000. He awarded non-economic damages against Oran Park in the sum of $150,000.

8 The award against each appellant for economic loss was the same, save that the award against Teamfox for past economic loss did not include an award of interest: Workers Compensation Act, s 151M; and the discount rate on the award for future economic loss against Teamfox was statutorily determined at 5%: s 151J. This in turn had an effect on the quantum of the loss of superannuation benefits.

9 Subject to those matters the award was as follows:

(i) 13 weeks at $450 per week $5,850

(ii) 39 weeks at $350 per week $13,650

The present value of $250 per week for 29 years discounted at 5% per annum less 15% for contingencies: $174,675

The applicable discount rate to be applied to the award against Oran Park was 3%, giving a verdict amount of $220,596.

Physical Injuries

10 The appellants do not challenge his Honour’s finding of permanent physical impairment of about 10% of a most extreme case.

11 The respondent submitted that, although the assessment of 10% was modest and notwithstanding the absence of any challenge to it, it was important to understand the extent of the respondent’s physical disability actually sustained in the accident so as to fully appreciate the extent of interference with his earning capacity. It is thus convenient to turn to that evidence immediately.

12 In arriving at his assessment of 10%, his Honour preferred the reports of Drs Hammond, Anderson and Walker, each of whom had been retained by the appellants for medico-legal purposes, as well as the evidence of Dr Cummine, the respondent’s treating orthopaedic specialist. His Honour did not accept the evidence of Drs Searle and Thompson, who had been retained for medico-legal purposes on behalf of the respondent.

13 Dr Cummine provided one report only and expressed the opinion that although the crush fractures of the vertebrae had united satisfactorily, there was some risk of developing post traumatic degenerate disc disease at the interspaces immediately adjacent to the various fractured vertebrae.

14 Dr Walker, who saw the respondent in February 1997, concluded that in relation to his back:

“in consideration of the radiological changes and compression fracture of 2 vertebrae without neurological involvement, and allowing for the exaggeration of physical examination, I apply an assessment of permanent physical impairment of 15% of a most extreme case”.

15 Dr Anderson, consultant occupational physician, saw the respondent in April 1993. He concluded that the respondent had made a reasonable recovery from his injuries. However, he considered that he was not fit for heavy lifting and/or frequent bending, but was fit to carry out any form of office, sedentary, educational or managerial activities. He assessed the respondent as having a current physical impairment equivalent with 10% of a most extreme case.

16 In a further report in 1997, Dr Anderson considered that there had been some improvement in the condition of his neck so that he would assess it in the order of 7-8% of a most extreme case. He found it difficult to give a proper assessment of his back condition in the absence of having seen any radiological evidence. However, he considered that it was probable that he did have impairment in the order of 10% of a most extreme case. He confirmed this view in his last report in 1999.

17 Senior counsel for the respondent submitted that these findings, albeit at the lower end of the range of seriousness, were nonetheless significant in a young man with limited education and training and who, most probably, would always be reliant on his physical capacity in the exercise of his economic capacity. In my opinion, there is considerable force in this submission.

Brain Damage

18 As I have already indicated, and as his Honour acutely recognised, “the measure of the [respondent’s] brain damage, and the measure of [his] disability resulting from that brain damage is a more complicated and difficult question”. The difficulty was essentially attributable to the respondent’s deliberate and fraudulent lying to doctors and to the court. Nonetheless, his Honour was obliged to make the best assessment he could. His Honour sought to undertake that task first, by comparing the respondent as he was before the accident with the way he had been since; secondly, by attempting to discard the untrue evidence in making that assessment; and finally to then understand the full effect of the supporting medical evidence, which, essentially, was that of Professor Broe, in the face of the clearly inaccurate information Professor Broe had received during the course of his examinations of the respondent. None of the findings which his Honour made in this process are challenged. Rather, the challenge is made to his Hounours’ conclusions, first on the basis that given the evidence he did accept, his award for future economic loss was excessive and secondly, that he gave inadequate reasons for his determination.

Work History Pre Accident

19 Before considering the challenge to his Honour’s assessment, it is convenient first to refer to the unchallenged findings of his past capacity and present capacity and incapacity. In so far as those findings related to his work history they were as follows.

20 Prior to his work for Teamfox the respondent’s employment history was varied and irregular.

21 The respondent had left school at age 13. His Honour found that his pre-accident capacity to read and write was limited. After leaving school, the respondent worked for Keith Lord for about 6 months. He then worked at North Shore Honda, most probably for only a few weeks, although the respondent gave conflicting accounts of the length and type of this employment and there was no independent evidence to assist his Honour to make any definite finding. His next job was at ‘Hextiles’ for a short period of time. The respondent then spent some time travelling around Australia. He was unemployed during this period.

22 At some stage the respondent arrived in the Lismore/Tweed Heads area. Whilst there, the respondent was associated with a lawn mowing and general handyman business for about a year. This seems to have been funded by a government project aimed at easing him back into the work force. He then went back to school where he studied for about a year at year 10 level, but did not complete his School Certificate. It seems the respondent also worked for a soup kitchen, in a factory for a few weeks and then for a refrigeration business, Aim Refrigeration, for about four months. The respondent claimed that he had worked for Aim Refrigeration for a longer period and had set up and run a company called Performance Refrigeration for a year or two years. His Honour doubted this evidence and considered that the respondent attempted to deceive the court about his work for the two refrigeration companies.

23 The respondent’s last employment before he was employed at Teamfox was with Outback Autos, a car yard. His position with this company was uncertain. He claimed he was a manager for two to three years and earned about $1000 a week. His Honour did not accept this evidence. He thought that it was possible that this was only a part time job where he earned less than $50 per week.

24 At the time of the accident the respondent was working for Teamfox, having commenced that employment in 1 November 1991 at a weekly salary of $450 net. His position was that of a manager. The respondent’s duties included acting as a track marshal, occasionally acting as a cashier, undertaking go-kart repairs, supervising clients and overseeing the normal day to day operations of the business, including the normal performance of go-karts running around the track. The respondent did not have access to the handling of the financial affairs of Teamfox and was not a signatory to the Teamfox bank account. His Honour found that although the respondent’s job title was that of manager, his duties “were not particularly demanding”. Overall, his Honour accepted the evidence of Mr Ward, one of the co-owners of the Teamfox business, who said that the respondent generally lacked “true management skills”. Mr Ward also said that although the respondent had spoken of ideas he had for the better running of the business these ideas were generally not viable and that the respondent required supervision in his work. Mr Ward was aware of the respondent’s poor literacy skills.

25 His Honour found that, contrary to the respondent’s assertions, he had not demonstrated a capacity to manage businesses or to make a good living prior to the accident. Rather, he had a limited employment history in relatively unskilled and not well paid work. His Honour did not accept that there was any significant change when he worked for Teamfox. He considered that given the hours he worked in that employment, his wage was “relatively meagre”. On his Honour’s findings, it would appear that out of a possible work period of about 12-13 years, the respondent worked for less than half this period, and possibly for considerably less than half.

Work History Post Accident

26 His Honour’s task in determining the respondent’s post accident work history was as trammelled by the respondent’s dishonesty as was the case with his pre-accident work history.

27 The first claimed period of work was for a short time in June 1992 where he was supposed to have worked at an RSL club. His Honour made no finding as to whether he undertook this.

28 In October and November 1993 the respondent worked, at the very least, for several shifts of a couple of hours duration as a cleaner at the Summer Hill Hotel. The respondent gave evidence that he only went to the hotel to visit a friend when he could not sleep. His Honour rejected this. There are video tapes that show him doing moderately heavy work. Ms Sawyers, the respondent’s then de facto spouse, gave evidence that the respondent did work for two to three days a week over a period of three to four months. However, beyond finding that he had worked as a cleaner for a period, his Honour could not make a definitive finding as to how long the appellant worked in this job or whether he worked at places other than the Summer Hill hotel.

29 The respondent gave evidence that in about 1995 he started working on computers as a hobby and then began to do some work for others. He then began to work in a business called E & S Computers, which was owned by a friend. The respondent apparently persuaded the owners of this business to expand and they moved into industrial premises. There was a question whether the respondent had some proprietorial interest in this business but his Honour was not, on the evidence, able to make a finding that that was the case. The friend who owned the business gave evidence that the respondent attended irregularly at the business and that his work habits were unpredictable.

30 His Honour found the evidence about this work to be unsatisfactory generally, but found that the respondent did some work in the computer business.

31 In 1998, Ms Sawyers bought a second-hand business and the respondent claimed that he tried to assist her in that business including driving a truck, but that he was severely restricted in the work he could do. The respondent does not challenge his Honour’s findings that he did some work in both of the computer and second-hand businesses.

Pre and Post Accident Personality

32 The respondent’s case was that before the accident he was a well organised person with drive, skill and managerial potential who was ‘normal’, friendly and easy going, whereas after the accident he was not organised, had lost his managerial capacity, was significantly disabled, was not easy going, did not have a good circle of friends and had limited ability to look after himself.

33 I have already referred to his Honour’s findings that the respondent had a poor work history with few skills. His Honour rejected that there had been a significant change between his pre and post accident personality, although he accepted that there were some changes which were “pointers to the existence and the effect of brain damage”. His Honour appears to have accepted at least part of the evidence of Mr Galea and Ms Sawyers and the evidence of Mr Watters and Mr Smith as part of this finding.

34 Mr Galea had been a part-owner of Teamfox. He considered that the respondent showed management and people skills beyond that which would be expected of someone of his age at the time. He said he was a person of “huge potential”. His Honour did not accept this assessment. After the accident, Mr Galea said he noticed that the respondent’s dress sense had deteriorated, his weight had increased and also the “electric smile” which had been a feature of his presentation pre-accident was missing. His Honour accepted this evidence.

35 Ms Sawyers, who had known the respondent for about a month before the accident and commenced a de facto relationship with him shortly afterwards, noticed that prior to the accident he appeared to be “normal” but, for about a three year period after the accident, he was withdrawn, depressed, disorganised and forgetful. At one stage she made an application to the Family Court that he have restricted access to their children because she was concerned with his care of the children given his short term memory loss. His Honour accepted this part of Ms Sawyers’ evidence, but did not accept the respondent’s case that his brain damage was the cause of the break up of that relationship.

36 Mr Watters, who had known the respondent for about a year before the accident and had water-skied with him described him after the accident as being “not confident”, “insecure”, and “withdrawn”. This was in contrast to his personality prior to the accident. Mr Smith observed that since the accident the respondent appeared forgetful and lethargic. It seems his Honour accepted this evidence.

37 As I have already mentioned, the trial judge accepted Professor Broe’s evidence that the respondent had suffered a frank brain injury. Professor Broe’s evidence was that the respondent had suffered severe permanent traumatic brain injury. He described the manifestations of that type of brain injury as being:

“impairment of … [the] executive function, which is the ability to plan and organise one’s life and to deal with circumstances, variable and complex, as they arrive [sic] in work and in day to day activities. They are the loss of fine judgment, the loss of the ability to control one’s emotional behaviour adequately, loss of a certain – not complete loss of course, but a reduction in those abilities, a reduction in motivation and drive.”

38 Professor Broe said that this type of injury also resulted in significant impairment of memory. He explained that by this he meant “it is more the process of laying down memories that is impaired. This goes with the difficulties in planning and organising”. Intelligence, as such, measured according to standard IQ tests may well be completely unaffected with this condition. Professor Broe was of the opinion that the respondent’s posterior brain had not been severely affected in the accident, apart from the temporal lobes which are the memory areas.

39 Professor Broe described the long term affects of bilateral frontal lobe damage (being the injury sustained by the respondent) as being:

“apathy, inertia, euphoria [which] gradually lift[s]. The person does not recognise that there are major deficits. They are not functioning as they were before. They become depressed and the clinical situation is one of marked fluctuation in mood and effect and function.”

40 Professor Broe had assessed the respondent on the basis that prior to the accident he was a:

“competent, intelligent, well organised person who demonstrated his capacity to enjoy life, manage businesses, make a good living and was easy going, likeable with a wide circle of friends and a good relationship. He was clearly a person of at least average and probably above average intelligence.”

41 On his Honour’s findings as to the respondent’s pre-accident personality and work capacity, this was quite inaccurate and he rejected this aspect of Professor Broe’s evidence. It was thus necessary for his Honour to assess Professor Broe’s evidence against his own very different findings as to the respondent’s pre-accident personality and capacities.

42 Professor Broe was asked to comment upon Mr Galea’s observations of the respondent and was of the opinion that this description was typical of a person with the respondent’s brain damage. Professor Broe expressed the opinion that he did not believe that there was “any job that [the respondent] could hold down, no matter how simple, because in the modern world all jobs require initiation, planning, organising, the ability to perceive and the ability to look at the feedback and modify one’s actions, and they are his deficits”.

43 Professor Broe considered that the effects of the brain damage would preclude him from setting up and successfully operating any business or from undertaking even very simple part time work because of his inability to “follow anything through”. For example, Professor Broe expressed the opinion that the reason the respondent had been unable to work successfully in the computer business was because of his brain damage. His Honour for the most part rejected this part of Professor Broe’s opinion. His Honour accepted, however, that some of the evidence regarding the respondent’s activities with E & S Computers and with the second hand business also supported Professor Broe’s thesis about the effects of brain damage, but only in the most general sense.

44 Professor Broe was also of the opinion that the respondent would require some measure of supervision to carry out basic personal care and that in effect he would require someone to provide a domestic structure for him to operate effectively. Professor Broe considered that there was independent evidence that this was already occurring, for example, comments that he was less well groomed than previously. He observed that in the absence of a carer minded to provide such a structure, he might be able to maintain his own environment for “days and weeks, possibly months but then he will deteriorate”. His Honour did not accept that the respondent’s brain damage would have such a significant impact in this regard.

45 Professor Broe concluded that he considered that the respondent would be permanently unemployed, although he accepted that the respondent would be “perfectly capable, because of his perfectly normal physical appearance and presentation, of getting jobs”. He considered that he would not be capable, however, of maintaining them and that was a typical post trauma behaviour pattern. Professor Broe was also of the opinion that “feigning, malingering and hysteria are very frequently the aftermath of traumatic frontal lobe damage, because the very deficits producing lack of insights, impaired judgment, inability to monitor one’s activities and see their outcomes are part of frontal lobe damage”. Professor Broe considered that despite the fact that there may have been evidence of feigning for the purposes of the neuro-psychological testing, he did not believe that it actually affected the outcome of that testing. His Honour found, however, that the respondent deliberately set out to deceive the psychological experts carrying out the testing. He held that those tests demonstrated that the respondent had suffered brain damage but, because of the respondent’s conduct, did not help him assess the respondent’s pre and post accident personality or what activities the respondent was capable of undertaking.

46 His Honour then summarised his findings in relation to the respondent’s working capacity as follows:

Workers Compensation Act

47 His Honour’s conclusion must be read in the light of his earlier finding that prior to the accident the respondent had been unemployed for substantial periods of time and had worked in lowly skilled and lowly paid jobs. Taking into account those matters, his Honour assessed the respondent’s future impairment of earning capacity on the basis of a loss of $250 per week for the balance of his usual working life. In percentage terms, this was a finding that he had lost about 55% of his earning capacity based upon his immediate pre-accident earnings, without making any allowance for increases in that wage over the intervening 10 year period. His Honour was also informed that the average weekly wage for a male as at the date of trial was $660 net. On this basis, his Honour’s finding involved an assessment of a loss of earning capacity of about 38%. Apart from the matters to which I have referred, his Honour did not state specifically why he considered that this was about the level of the respondent’s lost working capacity. It is clear that in coming to this assessment, however, his Honour did not accept Professor Broe’s evidence that the respondent was, in real terms, permanently incapacitated from permanent employment.

48 Although his Honour’s assessment was challenged as being excessive, much of the case, during the course of argument, was conducted on the basis that his Honour did not give adequate reasons for his decision. On reflection and a closer reading of this part of his Honour’s judgment, I do not think this is correct. His Honour, with a great deal of attention to detail, referred to the evidence he accepted and the evidence he rejected. As I have said, it is clear from the award for economic loss that he made, that he did not accept Professor Broe’s assessment that the respondent was permanently incapacitated from permanent employment. It is also clear that having rejected that aspect of Professor Broe’s evidence, his Honour did accept that the respondent was significantly incapacitated. That incapacity flowed both from the practical implications of his finding that the respondent had suffered a 10% interference of his physical capacity and from the finding of a serious brain injury. It is also apparent that his Honour made an assessment of ongoing loss of earning capacity. Had his Honour included in his judgment a phrase to the effect:

“Doing the best I can, given the lack of assistance in this case given by the respondent because of his dishonest evidence, but accepting that he only ever had an earning capacity as an unskilled worker, and given that he as now has a modest physical incapacity as a result of the accident as well as a serious brain injury both of which will have an effect on his earning capacity, I am of the opinion that he has lost something slightly over a third of his work capacity. Therefore, I allow $X per week.”

49 Even if I am wrong and his Honour failed to give adequate reasons, I would not disturb his Honour’s finding. The award for future economic loss was clearly within the range of damages which his Honour was entitled to give and, even though this Court could, if it found error, enter upon the assessment process itself, I see no point in doing so when his Honour’s award was within an appropriate discretionary range. I am of the same view in respect of his Honour’s assessment of non-economic loss.

50 Since preparing these reasons I have had the benefit of reading in draft the judgment of Hodgson JA. I agree with the principles which he has found governed his Honour in this case: see Hodgson JA at para 66.

51 That principle was debated with counsel during the course of the hearing. In my opinion, the damages awarded by his Honour reflect that principle. Although his Honour did not express the matter in precisely the way formulated by Hodgson JA, his Honour’s clear approach in not giving to the respondent and his witnesses the benefit of the doubt in respect of evidence which was unclear or uncertain (but with an honest witness might have been accepted) reflects that his Honour at all times had due regard to this principle.

52 Accordingly, I would dismiss the appeal with costs.

53 HODGSON JA: The circumstances of this appeal are set out in the judgment of Einstein J. I agree for the reasons he gives that the appeals on the questions of liability, contributory negligence, and contribution apportionment, should be dismissed.

54 Turning to the appeals on quantification of damages, I generally agree with Beazley JA, except in one respect which has considerable significance in the result. In my opinion, the primary judge’s judgment did not, or did not sufficiently, give effect to the principle that, where one party is responsible for substantial deficiencies in the evidence, uncertainty flowing from those deficiencies should in a general way be resolved unfavourably to the party responsible for them. For that reason, I am of the view that the respondent’s economic loss after the first year following the accident should be assessed at the rate of $125.00 per week instead of $250.00 per week; and that his non-economic loss should, as against Teamfox, be assessed as being one-quarter of a most extreme case and, as against Oran Park, be assessed at $120,000.00.

55 The primary judge found physical incapacity from the respondent’s spinal injuries equating to an assessment of permanent incapacity of about 10% of a most extreme case: see par.[78] of his judgment. No challenge is brought to this finding, and it was plainly justified.

56 The primary judge also found that the respondent had suffered “significant brain damage”: pars.[171] and [175]. Although this finding was challenged, it also was in my opinion justified. There were objective signs of brain damage. There was plausible lay evidence, including Ms. Sawyer’s evidence about loss of memory and loss of sense of humour. Finally, Professor Broe’s evidence, even when substantially discounted because of the respondent’s false histories, still supported significant brain damage.

57 However, in my opinion there were errors in the primary judge’s reasons and conclusion as to the economic consequences of these injuries.

58 The primary judge found the respondent had been employed by Teamfox from 1 November 1991 to 11 March 1992 at a salary of $450.00 per week net: par.[118]. This finding was not challenged by either side, and was plainly justified. The primary judge was unable to make any finding as to other pre-injury earnings or post-injury earnings, because of the unreliability of the respondent’s evidence. He found that the respondent exaggerated his disabilities deliberately and fraudulently: par.[54]; and that because his credibility was so damaged it was not safe to rely on anything he said unless and to the extent that it was corroborated: par.[56]. He found that the respondent lied repeatedly and deliberately for the purpose of attempting to recover a greater sum of damages than otherwise appropriate: par.[171].

59 In those circumstances, the primary judge found that, prior to his employment by Teamfox at the age of 26, the plaintiff had been unemployed for substantial periods of time, and when in employment this was mostly in relatively unskilled and not well-paid work: par.[127].

60 As regards post-injury employment, the primary judge found that in June 1992 the respondent worked as a cleaner for Penrith RSL for a short time (par.[70]) and in October and November 1993 worked as a cleaner at the Summer Hill Hotel (par.[72]). He noted that “the evidence does not establish … how much he earned”; but he did not note there that the onus was on the respondent to establish what his economic loss was. The primary judge also found that the respondent worked in a business E & S Computers from about 1994 to about 1997, and also in a second-hand business conducted in the name of Ms. Sawyers from about 1997 until about 1998 or later. He noted that the former was partly a cash business, that its turnover was shown in its records for the year ended 30 June 1997 as about $445,000.00, and that he thought the respondent may have had a concealed interest in it. The primary judge concluded:

“151 The evidence does not establish that the plaintiff was capable of establishing or conducting a business such as that of E & S Computers, but neither does it establish or corroborate the case advanced by the plaintiff that his brain damage operates to prevent him from doing so.”

61 Again there was here no express recognition that the onus was squarely on the respondent to establish what his economic loss was.

62 The primary judge found that the respondent treated the second-hand business as his own, and that the business was sufficiently successful to pay the vendor of the business $5,000.00 a month off the purchase price.

63 The primary judge summarised his views on economic loss as follows:

“171 Some aspects of the evidence concerning the, plaintiff’s activities with E & S Computers and with the second hand business support Professor Broe's thesis about the effects of the brain damage upon the plaintiff, but overall the evidence points to the conclusion that the plaintiff has lied, repeatedly, deliberately, and for the purpose of attempting to recover a greater sum of damages than would otherwise be appropriate. I find that he suffered significant brain damage. I also find that he has not proved more than this generality, so far as concerns its effect upon his earning capacity and so far as affects him in a non-economic sense, so that attaching a dollar value to particular elements of damages is anything but a scientific exercise. Ms Sawyers said, and again I accept, that during the period of their relationship the plaintiff always seemed to have money available, and he did not ask her for money. She said that he dealt in various goods, buying and selling, and although I take this to have been a reasonably constant activity, it does not seem to have been one likely to have attracted much by way of profit, considering the position over a long period. At the same time, the plaintiff seems to have lived with a degree of comfort incompatible with the notion that he has lived on social security benefits alone; he has gone on holidays, engaged in various motor vehicle sports, and supported (sometimes) a mobile telephone, and the habit of smoking both tobacco and marijuana.”

64 The judgment moves then to conclusions as to damages, giving no specific justification of the assessment of $250.00 per week impairment of earning capacity after the first twelve months after the injury.

65 The primary judge was in the situation where, because of the respondent’s repeated and deliberate lies, he had no reliable material relevant to pre-injury earnings apart from about nineteen weeks with Teamfox, and none at all as to post-injury earnings. Although (subject to statutory thresholds) a substantial award for economic loss was justified by the findings as to physical impairment and brain injury, the primary judge was very severely handicapped in assessing the value of that loss because the respondent’s lies left him with no reliable material about earnings prior to 1 November 1991 or after 11 March 1992.

66 In my opinion, this required him to assess damages with careful regard to the principle that “evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: Blatch v. Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 per Lord Mansfield. This principle is applied where one party fails to calls evidence which it could have called: Armory v. Delamirie (1722) 1 Stra 505, 93 ER 664; Jones v. Dunkel (1959) 101 CLR 298; Ho v. Powell (2001) 51 NSWLR 572. In my opinion it applies at least equally where the absence of evidence arises from deliberate lies told by a party who is in a position to tell the truth about the matter: I do not think such a party should be in a better position than one who refrains from giving the evidence. Indeed, the principle may operate more strongly in the case of deliberately false evidence than in the case of mere failure to lead evidence: see Wigmore on Evidence (Third Edition) Vol.2, pp.119-127, especially at p.126, Moriarty v. London Chatham & Dover Railway Co. (1897) LR 5 QB 314.

67 In my opinion, what was required in this case was that, within the leeway of uncertainty created by the respondent’s lies, the primary judge should have resolved the matter generally in favour of the appellants rather than neutrally: that is, he should have selected a figure towards the lower end of the range available in the absence of reliable evidence.

68 Mr Neil SC for the respondent did not dispute the principle, but submitted that this was in fact what the primary judge had done. He pointed out that $450.00 per week in 1992 was about average weekly earnings, which had risen to about $660.00 at the time of the trial; so that $250.00 per week was only about 38% of average weekly earnings. He submitted also that this type of decision should be altered by an appeal court only in very limited circumstances: Moran v. McMahon (1985) 3 NSWLR 700 at 723.

69 I should mention one other matter. There was some support from Professor Broe for the view that the respondent’s tendency to lie was itself a product of the brain damage caused by the accident; and it could be suggested that therefore it should not be weighed against him. However, unless a person has psychological or psychiatric problems so severe as to remove altogether that person’s responsibility for conduct, in my opinion the person must be regarded by the law as being responsible for his or her conduct: cf. State of New South Wales v. Gee [2002] NSWCA 326 at [32]. Certainly this is so in criminal law. I do not think the respondent should be relieved from the consequences of his deliberately giving false evidence, and thereby leaving the Court without reliable evidence in relation to matters as to which the onus was squarely on the respondent.

70 Despite Mr Neil’s submissions, I am of the opinion that the primary judge did not apply the principle. He did not say he was doing so. In a number of places, he seemed to suggest there was an onus on the appellants in relation to matters relevant to damages (pars.[73], [79] and [151]). The figures he selected seem to me to be around the middle of the wide range made available by reason of the absence of evidence, rather than being towards the lower end of that range. Had the primary judge said he had applied this principle, I would have accepted that he saw the range differently from me, and I would not have interfered with his decision. However, he did not refer to the principle, and I infer he did not apply it.

71 It is for those reasons that I support the decision I indicated at the beginning of this judgment. In my opinion, the changed view as to economic consequences reflects back to some extent into non-economic loss, justifying the adjustments to non-economic loss that I have indicated.

72 For those reasons, in my opinion each appeal should be allowed, and the damages adjusted so as to give effect to the figures I have indicated. The appeals related to liability as well as damages; and subject to further submissions, my tentative view is that the respondent should pay one-half of the appellant’s costs in each case and have a suitor’s fund certificate if otherwise entitled.

73 Einstein J: Two appeals are presently before the Court.

The Oran Park Appeal

74 The first is an appeal brought by Oran Park Motor Sport Pty Ltd ["Oran Park"] which had been the fourth defendant in proceedings heard by Acting Justice Brownie dealing with a claim by the first respondent, ["Mr Fleissig”] for damages for personal injuries. The injuries were sustained on 11 March 1992 when the plaintiff, Mr Fleissig, who is the first respondent in each appeal, took part in a go-kart race at the Oran Park Raceway [“the raceway”]. Oran Park was the occupier of the premises where the raceway was located. Its practice had been to hire the premises out to others from time to time for the purpose of motor vehicle racing.

75 Mr Fleissig had sued:

· Teamfox Pty Ltd ["Teamfox"] which had been his employer, as first defendant. It is the second respondent to the first appeal and the appellant in the second appeal. A finding was that the plaintiff on the day in question had raced in the course of his employment.

· Mr Phillip James Ward ["Mr Ward"] a shareholder in and sole controller of both Teamfox as well as the fourth defendant and third respondent to the first appeal, Lopired Pty Ltd [“Lopired”]. The affairs of Lopired and Teamfox were intermingled. Likewise the affairs of Mr Ward personally were to some extent intermingled with the affairs of the two companies. Mr Ward is the second respondent to the first appeal

· Lopired was the company to whom the raceway had been hired on the occasion when the injuries were sustained. His Honour dealt with relevant terms of the contract for hiring.

76 The accident occurred when Mr Fleissig drove his go-kart into a bend called “Champion Corner” at a time when the go-kart ahead of him suddenly lost speed. On his Honour's findings, a go-kart might suddenly lose speed during a race without warning and virtually any time. The findings were that while one may predict that this will happen from time to time, is it is not possible to predict when it will happen, and the slowing down of the kart ahead of Mr Fleissig, as the two karts entered Champion Corner, was an unpredictable or "random" event. The findings were that it was one of the events that the parties ought to have had in contemplation, although no one could have predicted that it would happen at that spot or at that moment. The findings were that when the go-kart ahead of Mr Fleissig slowed down, Mr Fleissig then attempted to overtake it and the two go-karts collided, Mr Fleissig's go-kart overturned and he was thrown against a concrete wall bordering the racetrack on the other side of the bend.

77 The early paragraphs in the judgment serve to set the context:

“The raceway was used for different forms of motor vehicle racing: racing cars, production cars, trucks, motor cycles and go-karts. Depending upon the type of vehicles being raced on any given occasion, part only of the overall track was used, and the remainder was blocked off. Champion Corner, which is sometimes called Bitupave Corner, was located in a section of the track used for various forms of racing.

Vehicle speeds are continually increasing, and safety standards progressively evolving, and of course this case has to be judged according to the standards prevailing at the time of the plaintiff's accident. The plaintiff tendered reports from two expert witnesses, Mr Tindall and Dr Olsen, neither of whom was required for cross-examination, and it is appropriate to accept most, if not all of what they said.

The nature of motor vehicle racing means that accidents will happen from time to time, so that good practice required steps to be taken to avoid or minimise the risk of injuries to drivers when an accident did occur; and the steps that should have been taken varied according to the nature of the vehicles being raced. In the main, the steps to be taken related to the absorption of energy generated by speeding vehicles, in such a way as to protect the drivers from injury upon impact. A go-kart driver, unlike a car or truck driver, has no surrounding vehicle framework to provide protection, so that what was principally needed was space within which to decelerate.

78 Oran Park hired the premises out to others from time to time for the purposes of motor vehicle racing and Lopired hired the premises from Oran Park frequently and regularly. The finding was that Lopired conducted functions called "corporate days" at the raceway approximately once a month and that on these occasions members of the public attended and Lopired was paid to provide its racing facilities, including the provision of go-karts and safety helmets, when needed. The finding was that Mr Ward personally played a significant role in these events, particularly so far as concerned the actual racing.

Regulatory Control

79 His Honour dealt with the input from regulatory authorities into what was required by way of safety precautions. The judgment includes the following:

“When a licence under the provisions of the Sports Act fell due for renewal, officers of the relevant government department obtained a report from police officers, and consulted with those governing bodies of the relevant sports, nominated in cl35 of the Motor Vehicle Sports (Public Safety) Regulation 1985 (“the Regulation”). It seems to be clear that each of these bodies provided input as to what was required by way of safety precautions generally, so far as concerned the sport which the relevant body controlled, and that the department made recommendations to the Minister, who in due course issued a licence which might incorporate ideas thrown up by the police or by the governing bodies. The procedure followed seems to have been quite a detailed, careful one, involving amongst other things inspections of the raceway premises.

The Reasons Establishing Negligence

80 On the findings the evidence was held to have established that the pads were the property of the ACU, and also that the body which controlled go-kart racing, Australian Karting Association, did not make any recommendation to the department for the provision of pads during go-kart racing, and that there was no provision made in the licence requiring the pads to be used during go-kart racing.

81 His Honour found that Mr Colgan of Oran Park had discussed the pads prior to the accident with Mr Ward and had told him that the pads were the property of the ACU and that it would be necessary for Mr Ward to obtain the permission of the ACU for the pads to be used in go-kart races. The finding was that Mr Colgan had seen the pads being used during go-kart races on more than one occasion when racing was conducted under the aegis of Mr Ward prior to the subject accident.

82 His Honour accepted that the pads were in position on the day of the accident, but placed on the outer side of the wall.

83 The holding was that it was not particularly important as to what the conditions attached to the licence required or did not require. The question was whether the various defendants were negligent. The conditions attached to the licence did not mention the use of pads during motorcycle racing, but all parties had apparently accepted that it was appropriate that they then be used. His Honour's findings continued:

“Proceeding on the basis that they were physically there, but flipped over onto the outer side of the wall, and viewing the case as throwing up an allegation that the defendants were negligent, the question posed is whether the defendants, or one or more of them, should have flipped the pads over so that they were on the track or inner side of the wall; or whether they should have not permitted the race to take place without those pads or some other form of protection in position. On the evidence, none of the defendants ever sought the permission of the ACU to use the pads owned by the ACU; and one cannot say what fee, if any, the ACU would have sought for the use of its pads, or whether the ACU, if asked, would have consented to the use of its pads. On the evidence of Mr Colgan, they had been used in the past, on the occasion of go-kart racing, but perhaps without the knowledge or consent of the ACU.

It was plainly foreseeable, and had been foreseen, that if there was a collision at or near Champion Corner, in some form of motor vehicle racing, a driver might sustain injury by impact with the wall. That danger could have been prevented, and the risk of injury could have been greatly reduced, if not entirely eliminated, by the simple expedient of putting the pads into position against the wall. As I have said, the evidence suggests that no one ever asked the ACU for permission to use its pads, but assuming the ACU refused that permission, then the risk of injury could have been averted or minimised, and the extent of any possible injury greatly diminished, if not eliminated, either by putting other pads into position against the wall, or by not racing until something equivalent was done.” [paras 15-16]

84 Paragraphs 19-23 of the judgment read:

“Compliance with the conditions attached to the licence is no doubt a relevant consideration, but it does not govern exclusively the issue whether negligence has been established; and if the race could not have been conducted safely, it should not have been conducted at all, until the licence conditions were amended.

In any event, the plaintiff's case is stronger than is reflected by this debate. On the reports of his experts, there should not have been a concrete wall at or near Champion Corner at all. This proposition was not contested, and after the accident, someone - perhaps OPMS - completely removed both the wall and the earth bank which lay behind it, substituting an area of soft earth, generally flat and level, but with a corrugated surface, so that a driver whose vehicle was involved in an accident at that corner now skids to a stop across this surface, rather than violently striking the wall. The risk of injury is thereby greatly diminished, and if an injury is sustained, it is likely to be a relatively slight one.

Further, the plaintiff's expert witnesses said that if there had to be a wall at the corner, whether made of concrete or some other hard substance, the wall and the track should have been designed so that a driver approached the wall at an angle of less than 45 degrees, with the consequence that if a driver struck the wall, the driver would tend to be deflected by the wall. However, as the wall stood in 1992, drivers approached it at an angle of greater that 45 degrees, so that a driver striking the wall would tend to rebound, rather than be deflected. That is, the driver's body would decelerate much more quickly, with a greater risk of injury, and a greater risk that an injury sustained would be a severe one. This part of the plaintiff's case remained completely unanswered.

In short, any of the defendants who owed the plaintiff a duty of care breached that duty.

The plaintiff also asserted that Teamfox, Mr Ward and Lopired were negligent in that Mr Ward had placed the plaintiff in a race with relatively experienced go-kart drivers, whilst he was inexperienced; that what experience he had was substantially limited to the go-karts used at an indoor racetrack at St Mary's where the plaintiff worked for Teamfox; and this claim was supplemented by an allegation that there were significant differences between those go-karts and the go-karts used at the outdoor raceway at Oran Park. For the reasons discussed below, when dealing with the allegations of contributory negligence, I reject this part of the plaintiff's case.”

The Teamfox Appeal

85 The primary emphasis in the second appeal brought by Teamfox is upon suggested errors in relation to findings, assessments and what are said to be failures to give adequate reasons in relation to non-economic loss and economic loss. A ground of appeal is also that the award for loss of superannuation was excessive.

86 The grounds of appeal duplicate or substantially, but on occasion with different emphases, mirror the grounds of appeal in the first appeal and:

· challenge the findings that Teamfox was in breach of any duty which it owed to Mr Fleissig; and if there be a breach, the challenge is to the finding that such breach caused or materially contributed to the Plaintiffs injuries.

· assert that the finding that Teamfox had not established that Mr Fleissig voluntarily assumed the risk of racing on the track when the pads were not in place against the racing face of the wall is against the weight of the evidence.

· assert that the apportionment of 10 percent in terms of the contributory negligence issue was inadequate and against the evidence or the weight of the evidence.

· assert that in relation to the apportionment as between Teamfox and Oran Park, Teamfox was entitled to a complete or substantial contribution from Oran Park

87 The convenient way forward is to firstly deal with the Oran Park appeal.

The Grounds of the Oran Park Appeal

88 Sufficient of the primary facts in terms of the upholding of Mr Fleissig's case in respect of the duty of care has now been set out to permit the particular grounds of appeal to be outlined and dealt with.

Primary Negligence

Breach of Duty

89 Ground 1.1 in the Notice of Appeal is in the following terms:

“In view of His Honour’s findings that protective pads were attached to the wall at the place where the accident happened prior to and on the day of the accident, that the pads could readily be flipped over from the non racing face to the racing face of the wall, that the Plaintiff employer, Team Fox and its associate company Lopired, had conducted race meetings at the track on prior occasions and to the knowledge of the Appellant had placed the pads on the racing face of the wall on prior occasions, that had the pads been in place against the racing face of the wall at the time of the accident the risk of injury to the Plaintiff could have been greatly reduced if not entirely eliminated, His Honour was in error in finding that the Appellant was in breach of any duty it owed to the Plaintiff.”

90 The appellants central submission is that the scope and standard of care required of it to someone in the position of Mr Fleissig was comfortably satisfied because:

· The racetrack was hired to an experienced race organiser who had conducted regular and frequent race meetings at the track;

· Pads were affixed to the wall at the corner and could be readily placed against the racing face of the wall;

· There had been previous discussions with the race organiser about the use of the pads and to the knowledge of Oran Park, the race organisers had placed the pads against the racing face of the wall during previous race meetings.

91 There is no substance in these submissions.

92 The factual finding that Oran Park was the occupier of the raceway premises and hired those premises out for the purpose of go-kart and other motor vehicle racing appropriately and sufficiently underpinned the further finding in respect of which no appellable error has been demonstrated, namely the finding that Oran Park owed a relevant duty of care to go-kart racers including Mr Fleissig.

93 Risk of injury by impact with the wall was held to be plainly foreseeable. The risk, as the trial judge held, could have been averted or minimized by the simple expedient of placing the pads in position or by not permitting racing until this was done.

94 The central submission which was developed from the bar table was simply that Oran Park had satisfied the requisite standard of care in the circumstances. Those circumstances, it was submitted, critically included the previous dealings between Oran Park and Mr Ward and his companies where, so it was submitted, Oran Park had every justification for assuming that Mr Ward and the companies under his control, here relevantly Lopired, would instruct the Steward to ensure that the pads were in position on the inner side of the wall. That reasonable justification it was submitted could be seen from the findings that Mr Colgan of Oran Park had discussed the pads with Mr Ward and had seen the pads being used during go-kart races on more than one occasion prior to the date of the accident, when racing was conducted under his aegis.

95 No appellable error is shown to have been committed in relation to this issue. For one thing the evidence given by Mr Colgan [Transcript 1026/Black Appeal Book 1008] was that he could not put a figure on how many times he saw Mr Ward conducting his meetings with the pads on the racing face of the relevant wall and hence unable to say that it was "more than once". Twice is of course “more than once”. It was necessary for far more precision by way of chapter and verse if Mr Ward's past conduct of meetings was to be a material consideration justifying the conduct of Oran Park in having left this matter entirely to Lopired as satisfying the relevantly onerous standard of care. However even more pervasive and the real consideration is the fact that Oran Park did not extract from Lopired as the hirer, any contractual obligation to take nominate steps to secure the placing of the pads on the racing face of the relevant wall. Clearly go-kart racing is an inherently dangerous sport. Equally clearly it is incumbent upon an occupier which elects to hire the racetrack to a third party and nonetheless to discharge its duty of care in respect of the racetrack premises, to take all reasonable steps to ensure that those who would participate in the racing would not be exposed to dangers inherent in the physical set up or condition or mode of use of the racetrack premises and or were inherent in that physical set up or condition absent the taking of special precautions. The danger which inhered in the condition or mode of use of these premises at the material time was clearly identified by the trial judge as present if the pads were not placed upon the racing face of the relevant wall. The reasonable steps which such occupier was obliged to take in this regard, if it was to satisfy its duty of care as occupier to those who would race upon the racetrack, included the occupier being satisfied by the making of relevant contractual arrangements, that the hirer would place the pads upon the racing face of the wall. The steps taken in this regard by Oran Park were limited to a reliance upon Mr Ward acting in a fashion in which, at least upon one occasion, he had been seen to act and importantly, did not include any contractual arrangements whatever imposing an enforceable contractual obligation upon Mr Ward and the hirer to procure and to ensure that adequate procedures were in place for the padding of the racing face of the wall. These steps were far from adequate in the circumstances.

96 Further, as Mr Fleissig has submitted, a most important finding was that on the expert evidence, the greatest contributing factor towards Mr Fleissig's injuries was the presence of the unguarded concrete wall in close proximity to the track and to the position at which the collision occurred. The finding was that had the wall not been there, there would have been little or no injuries sustained and that had the wall been at a different angle or been padded, the injuries would have been much less severe. Hence Oran Park’s submissions either overlook or do not recognise the clear significance of the finding that there should not have been a concrete wall at or near Champion Corner at all. Plainly enough Oran Park was responsible for the wall being in place. In this regard the fact that the licensing authority had not raised the placement of the wall as a problem was only one of the factors to be taken into account and did not, as the trial judge held, determine the negligence issue.

97 The wall being in place, Oran Park as occupier was about the business of hiring out premises which were inherently dangerous insofar as a particular form of racing was concerned, unless special precautions were taken by the hirer. The occupier breached its duty of care in and about the casual hiring arrangements made on the occasion in question.

Causation

98 Ground of appeal 1.2 is that in view of the findings outlined in ground of appeal 1.1, the trial judge erred in finding, in the event that there was a breach of a duty of care in respect of the failure to place the pads against the racing face of the wall on the occasion in question, that the relevant breach of duty caused or materially contributed to the plaintiffs injuries or to the extent of such injuries. No appellable error has been demonstrated in respect of his Honour's finding as to Oran Park's breach of duty having caused or materially contributed to the injuries or extent of the injuries suffered by Mr Fleissig. In a real sense the reasons already given serve to confirm why it is that Oran Park as occupier by its relevant breach of duty caused or materially contributed to the plaintiff’s injuries.

Voluntary Assumption of Risk

99 Ground of appeal 2.1 challenges, as against the evidence or against the weight of the evidence, the finding that Oran Park had not established that Mr Fleissig voluntarily assumed the risk of racing on the track when the pads were not in place against the racing face of the wall.

100 Lopired and Mr Ward raised a defence of voluntary assumption of risk which succeeded before his Honour on the basis and only on the basis of the execution by Mr Fleissig of the "Waiver and Indemnity Agreement" form which became exhibit 15. The finding was that the plaintiff had entered into a contract with Lopired and Mr Ward which operated to give rise to the volenti defence. The finding was that contract provided in substance "that in consideration of the acceptance of Mr Fleissig's application to participate, he agreed to indemnify these defendants from all claims, etc., whether or not caused by negligence or other breach of duty". Having examined exhibit 15, in my view the appellant has not shown any form of appellable error in relation to this finding.

101 As to the position of Oran Park and Teamfox the findings were:

· that they had established that Mr Fleissig was generally aware that go-kart racing was a dangerous sport;

· that they had not established that Mr Fleissig knew of, much less that he voluntarily assumed the risk that he would be injured by reason of the breaches of duty found.

102 The latter finding is impugned as a finding against the evidence or against the weight of the evidence.

103 Oran Park submits that it is self-evident that Mr Fleissig would have known that there was no form of padding placed trackside against the wall at and about the corner. It relies upon his concession in cross-examination that he was aware prior to the accident that absorbents of one sort or another were used to provide safety for competitors in motor sport. Attention is also addressed to the case advanced by Mr Fleissig that the pads were fitted to the wall and clearly visible on the non-racing side of the wall at and near the corner on the day of the accident. The submission is that an inference ought to have been drawn from this case that Mr Fleissig would have been able to see the pads on the day of the accident. Attention is also drawn to the concession by Mr Fleissig that he willingly accepted the condition of the track on the day of his accident.

104 There is no substance in any of these submissions. Oran Park and in relation to the second appeal Teamfox, in order to succeed in the volenti defence are required to define the precise risk that Mr Fleissig is alleged to have run for the reason that they bear the onus of proving that he consented not only to some risk of injury but to the particular risk which culminated in injury. The plaintiff must be shown to have fully appreciated the nature and extent of the risk and not merely the existence of a danger: Roggenkamp v Bennett (1950) 80 CLR 292 at 300 per McTiernan and Williams JJ; Canterbury Municipal Council v Taylor & Ors [2002] NSWCA per Ipp AJA at paragraph 144, Spigelman CJ and Matthews AJA agreeing.

105 Further the plaintiff must not only consent to the risk but must also assume the risk freely and voluntarily. The volens principle has been invoked frequently in actions by servants against employer is for negligence without much success:

Bowater v Rowley Regis

106 Whilst it may not be strictly necessary in the present circumstances to examine in any real depth some of the complexities which would require to be unravelled prior to the relevant defendant having been able to discharge the volenti defence, they certainly include questions including the following:

· whether and if so in what specific respect and in what specific manner the work for which Mr Fleissig was employed, was work in which danger was necessarily involved

· whether even if that be held to have been the case, Mr Fleissig is shown to have taken the risks attributable to the negligence of his employer

107 No appellable error has been shown in terms of his Honour's findings in relation to the failure of Oran Park and Teamfox to establish that Mr Fleissig voluntarily assumed the relevant risk that he would be injured by reason of the particular risks of injury which were found to have been suffered by reason of the breaches of duty of care found to have been owed to him.

Contributory Negligence

108 Ground of appeal 3.1 challenges his Honour's apportionment of 10 percent by way of Mr Fleissig's share of responsibility. The finding is said to have been inadequate and against the evidence or the weight of the evidence when seen in the light of the findings that Mr Fleissig was an experienced go-kart driver and that the collision between his go-kart and the go-kart ahead, happened essentially because Mr Fleissig disobeyed instructions not to overtake.

109 In paragraphs 51 and 52 the trial judge dealt with the manner as follows:

There was some debate as to whether the pads would have been effective to prevent the plaintiff being injured. To some extent, the evidence of Mr Tindall and Dr Olsen is undermined by the assumptions they made about the plaintiff's speed just before his kart collided with the other kart, these assumptions being in my judgment effectively contradicted by the evidence of Mr White in particular, but the central thrust of what they say is the only evidence on the subject. Speculation that the pads might not have been effective is, on a proper view of the whole of the evidence, just that: speculation. The evidence is not entirely satisfactory, but doing my best with what evidence there is, I hold that the plaintiff's damages should be reduced by 10%, having regard to his share in the responsibility for the damage.”

110 His Honour found that on the day of the accident Mr Ward instructed Mr Fleissig, as an employee, that he was not to overtake other drivers, mainly paying customers. Each race started with the go-karts already in motion and with the drivers placed in designated positions relative to one another: "a running start". The finding was that Mr Fleissig started at the back of the field with instructions to stay there and not to overtake. The finding was that the instructions were disobeyed. Mr Fleissig overtook other drivers at different times. The trial judge then dealt with the factual finding referred to earlier, namely that during go-kart races, karts might suddenly lose speed at any time without warning and that it was impossible to predict when this might happen.

111 No appellable error has been demonstrated in relation to the 10 percent apportionment finding. If the go-kart in front of that being driven by Mr Fleissig had suddenly lost speed to such an extent that the imperatives required Mr Fleissig to overtake it or alternatively to collide with it, the instruction not to overtake could not have been complied with. No finding was made of this type and the evidence seems unclear but rather suggests that the accident took place whilst Mr Fleissig had recommenced overtaking in breach of his employer's instruction and that this was when the sudden slowdown of the go-kart being overtaken happened. The example does however point up that the instruction was by no means sufficient per se to treat with the exigencies of what was possible even if it was obeyed.

Apportionment

112 Ground of appeal 4.1 claims that in the light of the findings referred to in ground of appeal 1.1 His Honour was in error in finding that Oran Park and Team Fox were equally responsible for the damage suffered by Mr Fleissig. A claim is made that Oran Park was entitled to a complete or substantial contribution from Team Fox.

113 It is convenient to briefly return to the position insofar as Teamfox is concerned. The finding was that in the circumstances outlined in the judgment at paragraphs 25 and 26, Mr Fleissig took part in the race in the course of his employment and in circumstances where, prima facie, Teamfox owed him a duty of care, as employer. Paragraphs 25 and 26 were in the following terms:

“The position of Teamfox is rather different. In the main, the plaintiff worked at Teamfox's indoor go-kart facility at St Mary's, as the manager of that facility. However, to summarise part of the evidence of Mr Ward, a significant part of the plaintiff's time there involved him in taking bookings for and answering inquiries about Lopired's activities at Oran Park; it was important for the plaintiff, as an employee of Teamfox, to be able to deal proficiently with inquiries about Lopired's activities at Oran Park; participating in races at Oran Park improved the plaintiff's knowledge of what happened at Oran Park, so as to assist him to make those bookings and answer those inquiries proficiently; he went to Oran Park on corporate days sometimes, and whilst there promoted the activities of the indoor facility of Teamfox at St Mary's; on the day of the accident he was at Oran Park under the direct control of Mr Ward who gave him instructions what to do and how to do it; and he drove a go-kart provided to him for the race, because he was an employee of Teamfox, rather than a fee-paying customer of Lopired.

It is true that the plaintiff had asked Mr Ward on several prior occasions if he might race at Oran Park, and that Mr Ward had always refused, until the occasion of the day of the accident, when not many people had booked to attend at the corporate day, but this does not mean, as Teamfox submitted, that the plaintiff had somehow departed from the course of his employment, as if on a frolic of his own. I find that he took part in the race in the course of his employment, and in circumstances where, prima facie, Teamfox owed him a duty of care, as employer.”

114 This ground of appeal rests upon the propositions that:

· At the time of the accident Mr Fleissig was taking part in the corporate day and was racing in the course of his employment with Teamfox;

· Teamfox as part of the "Ward Group", had the operational control of the corporate day and was responsible for the set up of the track;

· Teamfox, as part of the "Ward Group", was aware of and had previously placed the pads;

· Oran Park knew that Teamfox was aware of and had previously used the pads and would have no reason to think that the pads would not be used on the day of the accident;

· If the pads had been placed against the racing face, the risk of injury to Mr Fleissig could have been averted.

115 The submission is that in those circumstances Oran Park is entitled to a complete indemnity or at the very least to substantial contribution from Teamfox.

116 The issue concerns the respective degrees of responsibility as between on one hand the occupier of the raceway and on the other hand Mr Fleissig’s employer in circumstances in which he took part in the race in the course of his employment with Teamfox as employer.

117 The trial judge put the matter as follows:

118 The resolution of this issue is substantially bound up in the reasoning to be found earlier in this judgment going to the onerous duties of care of the occupier in the circumstances. Those reasons dwelt upon whether or not the occupier had taken appropriate reasonable steps in discharge of its duty of care in its dealings and arrangements with Lopired, the hirer of the raceway. However precisely the same reasoning applies to a consideration of whether or not the occupier had taken appropriate steps in discharge of its duty of care in circumstances where Teamfox as part of the so-called "Ward Group" and being the employer said to have had the operational control of the corporate day and to be responsible for the set up of the track, was concerned. The brush which tarnishes the inadequacy of the occupier's steps in having hired the raceway out to Lopired and the particular inadequacy of the occupier's steps in the asserted reasonable reliance upon its anticipation that Mr Ward as he had previously done, would place the pads into the correct position, also tarnishes the inadequacy of the actions taken by the occupier qua its asserted reasonable reliance upon its anticipation that Lopired would place the pads into the correct position. And as, standing back from the detail and dealing with the matter in terms of the practical realities in terms of the common sense of the situation, it is clear that Mr Ward as controller of both the hirer and the employer was effectively at the helm regardless of which of these companies is in focus, the trial judge was certainly correct and has certainly not been shown to have committed an appellable error in relation to his findings of equal responsibility.

119 An occupier for very obvious reasons has long been fixed with the onerous duties of care which is varied with the category to which the particular visitor was held to belong. A high duty of care is imposed on an occupier towards invitees than towards licensees. This par excellence is a set of facts matters in circumstances where the sport was inherently dangerous giving rise to a significant duty of care upon the occupier. As Kirby J. pointed out in Woods v Multi-Sport Holdings 2002 186 A. L. R. 145 at 168 para 105: “The law, and specifically the law of negligence, promotes a greater consciousness of the need for safety, accident prevention and the avoidance of needless or excessive injury and sport. In doing so it promotes the true values of sport rather than the brutal and excessive features that debase sport, leaving victims and their families to pick up the pieces over many years, long after the watching crowd’s shearing has subsided”.

120 As always questions of apportionment are extremely difficult and involve an exercise of judgment in the particular circumstances when the Court stands back from all of the evidence and assesses degrees of responsibility. The trial judges reasons and findings as to apportionment of 50% as between Oran Park and Teamfox are not shown to have been the subject of appellable error.

121 The absence of reasonable grounds on this issue was barely argued and there is no substance in the submissions.

122 Insofar as Teamfox in its grounds of appeal:

· challenged the finding that it had not established that Mr Fleissig voluntarily assumed the risk of racing on the track when the pads were not relevantly in place [ground of appeal 5.1], that ground fails for reasons already given;

· challenged [but only to the extent that Oran Park may succeed on its submissions in this regard] the contributory negligence apportionment, [ground of appeal 6], that ground fails for reasons already given;

· challenged the findings of its primary breaches of duties of care owed to Mr Fleissig as employer [ground of appeal 4], that ground fails as the trial judges findings were grounded in the employer's non-delegable duty of care which was not discharged;

· challenged the apportionment findings as between Teamfox and Oran Park [ground of appeal 7], this ground fails for the reasons already given and by analogy with those reasons. Teamfox is not shown to have taken any sufficient steps in discharge of its relevant duty of care to an employee shown to have, in the course of his employment, been permitted to race on a raceway with the inherent dangers earlier referred to.

Damages

123 I have had the benefit of reading the draft judgments of Beazley JA and of Hodgson JA.

124 In my view and for the reasons given by Hodgson JA, the primary judge failed to give adequate reasons for his decision in terms of the assessment of $250 per week impairment of earning capacity after the first 12 months following the injury.

125 I am further in agreement with the statements of principle for which the authorities cited by Hodgson JA stand, namely that evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. Likewise and as Hodgson JA has stated, the principle applies equally where the absence of evidence arises from deliberate lies told by a party who is in a position to tell the truth about the matter.

126 However I am not in agreement with Hodgson JA in terms of the holding that the finding of the primary judge should be disturbed by the assessment process now engaged in on appeal. In my view an application of the principles cited by Hodgson JA should not result in any different assessment to that which the primary judge in fact reached, albeit without a sufficient statement of reasons in terms of the economic loss for the first-year following the accident. The primary judge's assessment in this regard was clearly within the range of damages which he was entitled to give and in all of the circumstances, upon a reassessment, I would award precisely the same sum.

127 For the same reasons and by the same approach no different assessment to that which the primary judge in fact reached as to non-economic loss is appropriate.

Orders

128 The appeals should be dismissed with costs.

**********

Citations

Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371

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CITATION:	Oran Park v Fleissig; Teamfox v Fleissig [2002] NSWCA 371
FILE NUMBER(S):	CA 40336/01; 40359/01
HEARING DATE(S):	12 August 2002 13 August 2002
JUDGMENT DATE:	15 November 2002
PARTIES :	Oran Park Motor Sport Pty Limited Eric Fleissig Teamfox Pty Limited
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 53; Einstein AJA at 73

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	21227/96
LOWER COURT JUDICIAL OFFICER :	Brownie AJ

COUNSEL:	R McIlwaine SC (Oran Park) P W Neil SC/J Carr (Fleissig) D Higgs SC/G Charteris (Teamfox)
SOLICITORS:	Marsdens Solicitors (Oran Park) Bateman Battersby (Fleissig) P W Turk & Associates (Teamfox)
CATCHWORDS:	personal injury - brain injury - workers compensation - damages - contribution - negligence - inadequate reasons - whether disabilities exaggerated - whether evidence reliable - voluntary assumption of risk
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW), ss 151G, 151H, 151J, 151M
CASES CITED:	Blatch v Archer (1774) 1 Cowp 63 Armory v Delamirie (1722) 1 Stra 505, 93 ER 664 Jones v Dunkel (1959) 101 CLR 298 Ho v Powell (2001) 51 NSWLR 572 Moriarty v London Chatham & Dover Railway Co (1897) LR 5 QB 314 Moran v McMahon (1983) 3 NSWLR 700 State of New South Wales v Gee [2002] NSWCA 326 Roggencamp v Bennett (1950) 80 CLR 292 Canterbury Municipal Council v Taylor [2002] NSWCA 24 Woods v Multi-Sport Holdings (2002) 186 ALR 145
DECISION:	Appeal dismissed with costs