Negligence—Duty of care—Sport—Pastime—Existence of duty—Breach—Risks inherent in sport or pastime—Risks not inherent—Voluntary assumption of risk—Burden of proof of assumption.
Decisions
October 18. The following written judgments were delivered: - BARWICK C.J. The appellant, an experienced water skier, was skiing on the Macquarie River at Dubbo, performing in company with other experienced water skiers an operation known as "crossovers", in which three skiers being towed with ropes of different lengths pass from side to side across the wake of the towing boat and across each other's paths. The appellant at the material time was the middle of the three men and thus in crossing had to pass his tow rope over the skier ahead of him and crouch under the rope of the skier behind him. (at p384)
2. The towing boat was being driven along a fairly straight and sufficiently wide stretch of river during the manoeuvre, travelling at thirty to thirty-five miles per hour. As the appellant was passing to the starboard side of the boat's wake he was temporarily blinded by spray and had need to clear his eyes before starting to turn inwards again. This may possibly have caused him to swing wider in executing his manoeuvre than otherwise he might have done. However, when he could see again he was faced with a stationary boat, as he says, about six feet away from him. He endeavoured to avoid colliding with it but was unable to do so. In the result he was severely injured. He sued the respondent who was the driver of the towing boat for failure to take due care in the control of the boat and for failure to warn him of the presence of the stationary boat. (at p384)
3. It seems that it was usual, as the appellant, the respondent and the other participants conducted their water skiing, to have an observer as well as a driver in the towing boat: it was also usual for the driver or the observer to signal the presence of any obstacle which was seen in or on the water along which the tow was being made. Although on this occasion there was another person in the towing boat as well as the driver, as I read the evidence, that person was not acting as observer nor was any signal given by the driver warning of the presence of the stationary boat of whose presence or position it was conceded the driver at material times was aware. (at p385)
4. The jury found for the plaintiff: but the Supreme Court (Court of Appeal Division) set aside the verdict on the ground that the respondent driver of the towing vehicle owed no relevant duty to the appellant, both being participants in a sport who had, by engaging in it, accepted the risks of injury which might be involved in taking part in it.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Rootes v Shelton [1967] HCA 39
Case
[1967] HCA 39
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Rootes v Shelton*. The appellant, Rootes, was the owner of a motor vehicle and the respondent, Shelton, was a passenger in that vehicle. The dispute arose from injuries sustained by Shelton when the vehicle, driven by Rootes, collided with a power pole. Shelton alleged that Rootes had driven negligently, causing the accident and his injuries.
The central legal issue before the High Court was whether Shelton, as a passenger, had voluntarily assumed the risk of injury arising from Rootes' alleged negligence. This involved considering the nature of voluntary assumption of risk in Australian law and the circumstances under which a passenger might be deemed to have accepted such a risk.
The Court held that for a plaintiff to voluntarily assume the risk of injury, they must have had full knowledge of the nature and extent of the risk and have voluntarily accepted that risk. In this instance, the Court found that Shelton, as a passenger, had not been aware of the specific risk of the driver's negligence in the manner it occurred, nor had he voluntarily accepted such a risk. Therefore, the defence of voluntary assumption of risk was not made out. The appeal was dismissed.