Samahar Miski v Penrith Whitewater Stadium Ltd - [2018] NSWDC 21

District Court

New South Wales

Medium Neutral Citation: Samahar Miski v Penrith Whitewater Stadium Ltd [2018] NSWDC 21
Hearing dates: 29 January 2018 – 1 February 2018
Date of orders: 20 February 2018
Decision date: 20 February 2018
Jurisdiction: Civil
Before: Judge D. Russell
Decision:
(1) Judgment for the defendant.
(2) Order the plaintiff to pay the defendant’s costs.

Catchwords: TORTS – negligence – whitewater rafting – fall from raft – whether there was a failure to take reasonable precautions
TORTS – negligence – obvious risks of dangerous recreational activity – s 5L Civil Liability Act 2002
TORTS – negligence – materialisation of inherent risk – s 5I Civil Liability Act 2002
Legislation Cited: Australian Competition and Consumer Act (Cth)
Civil Liability Act 2002 (NSW)
Cases Cited: Motorcycling Events Group Pty Limited v Kelly [2013] NSWCA 361 at [150]
Wyong Shire Council v Vairy [2004] NSWCA 247
Prast v Town of Cottesloe (2000) 22 WAR 474
Rogers v Whitaker (1992) 175 CLR 479
Category: Principal judgment
Parties: Samahar Miski (plaintiff)
Penrith Whitewater Stadium Ltd (defendant)
Representation:
Counsel:
L. Robison (plaintiff)
D. Lloyd (defendant)
Solicitors:
John Stonham & Co (plaintiff)
McCulloch & Buggy (defendant)

File Number(s): 2014/332159

Judgment

INTRODUCTION

On 12 November 2011 the plaintiff went with a group of friends to the Penrith Whitewater Stadium. There she participated in the activity of whitewater rafting. The plaintiff fell out of her raft and into the water. She floated downstream from the rapids to the calm water at the foot of the course. Somewhere between falling out of the raft and attempting to stand for the first time on dry land she fractured her right ankle.
By a Statement of Claim filed on 11 November 2014 the plaintiff sued the defendant which was the occupier and operator of Penrith Whitewater Stadium. The pleading sought damages for common law negligence and for breach of the Australian Competition and Consumer Act (Cth) (the ACC Act).
The Statement of Claim alleged the following particulars, common to the negligence claim and the claim under the ACC Act:

“(a)   Failure to supply services, the rafting activity, with due skill and care;
(b)   Failure to take any or adequate precautions for the safety of the plaintiff to avoid exposing her to injury which could be avoided by reasonable care;
(c)   Failure to give a proper instructional presentation of the rafting activity and associated risk of participation;
(d)    Failure to warn adequately at all the plaintiff as to the dangers associated with the rafting activity;
(e)   Failure to employ competent staff;
(f)    Failure to identify and observe the plaintiff was in a position of peril in the circumstances and take steps accordingly;
(g)   Failure to utilise rope lines to assist the plaintiff;
(h)   Failure to activate the Emergency Stop Button.”

By its Defence the defendant denied negligence and denied a breach of the ACC Act. The defendant relied upon provisions in the Civil Liability Act 2002 (NSW) (the CL Act). Not all of the defences pleaded in the Defence were ultimately relied upon.
The plaintiff gave evidence herself, and called one of her friends, who was in the same raft. There was also expert evidence. The defendant called evidence from its senior activities instructor, the trip leader on the day of the accident and the guide who was in the raft in which the plaintiff and her friend were passengers.
Key issues in the case were: the instructions given to the plaintiff before she commenced rafting; the risk warning given to the plaintiff before she commenced rafting; the steps taken to observe and retrieve patrons who fell from rafts into the water; and the utility of activating the Emergency Stop Button. I will summarise the evidence of each witness on liability and then make factual findings.

EVIDENCE OF THE PLAINTIFF

The plaintiff was born on 15 June 1979 so she was 32 years old at the date of her accident. She was married in 2000 and has two children born in 2003 and 2005. I will deal later with her medical evidence and her employment history.
The plaintiff and her friends bought their tickets before they went to the stadium. They opted for a guided ride, which meant that a guide or instructor would be in each raft with about six passengers.
The plaintiff and her friends attended the stadium at about 10.00am. They went to a counter where a piece of paper was given to everybody. She signed the paper, as did everyone else. They then went to a room where life jackets and a helmet were allocated, and they all put them on. They then went to an area where staff members came out and spoke to everyone who was there. The plaintiff said that the people attending at that time were spoken to by the staff “just about some safety things that we need to look out for, or just general rules”.
The plaintiff recalled that she was told in this safety talk to sit on the side of the raft. She was told that in the event that you come out of the raft, the instructor is there to help you, and there will be people standing on the shore who have ropes. She was also told that if she went overboard, she had to try and lift herself up. By later evidence she made clear that she had been told to float on her back with her feet up, so far as that was possible.
The plaintiff said that after this initial safety briefing, when she went to the raft with four other participants, the instructor didn’t say anything at all before they commenced rafting.
The rafting session was supposed to last for 1½ hours, of which 1 hour would be on the water. She described the course as a circuit that the raft travelled around where there is rough water and then calm water and then rough water again. She said:

“Well, we did the circuit a few times, and then I cannot recall at what point of the circuit, but it was possibly near the end there was a dip, and I slipped out.”

She said that she remembered that she had to try and put her legs up. She felt like she was in a washing machine, going under and in.
The plaintiff said that she was spat into the calm water and then screamed out for help. She looked up and saw the raft where the girls were and they were laughing. She dog-paddled to the raft which by this stage was in the calm water. The raft beat her to the end of the circuit.
The plaintiff said that when she was underwater she tried to raise her legs many times, but the water was too strong. No-one came to her assistance and no-one threw her a rope. When she got to the raft she was pulled into the raft. Her life jacket was taken off. One shoe was missing. The raft was moved to dry land. She went to step off the raft onto the shore and as soon as she stepped on her right foot she screamed and went down, feeling pain in the right ankle. She saw that her foot was extremely swollen. She then hopped up to the top where it was flat and asked for a wheelchair. She sat in the wheelchair and an ambulance was called. The plaintiff recalled a staff member coming out and taking down notes.
The plaintiff was asked whether after she fell out she noticed any change in the water in terms of how rough or fast it was. She said that the water remained the same, which I took to mean that she was tossed about in the rough water and she remained in the rough water until she arrived in the calm water at the bottom of the course.
The plaintiff was cross-examined and said that before attending at the stadium she knew nothing about whitewater rafting. She did not think that it was a particularly dangerous activity although she realised it was a sporting activity. She said she was just there for a fun day out.
The plaintiff was shown the document which she signed before she embarked on the rafting course. She acknowledged that she did sign it. She described the document as a “risk assessment”. This was a term that the plaintiff was familiar with, as in her career she was involved in assessing carers and teachers of children, and had herself performed risk assessments in that context.
The plaintiff said that on the day she was a bit rushed when asked to sign the paper. She knew that she had to agree to the matters on the paper before she entered into the activity. In answering questions about the document she said: “This is not a contract, it’s a risk assessment”. She said that she signed it “unknowingly”. She agreed that no-one told her there was any time restriction on her reading the document.
The plaintiff was also cross-examined about a brochure which was apparently available at the stadium, but which was not handed to the plaintiff or any other participant in the rafting activity. I have great difficulty seeing the relevance of this brochure for two reasons. Firstly, if participants attend the stadium they know they are going whitewater rafting, and there is no real reason for them to pick up a brochure which is essentially an advertising brochure. Secondly, certain phrases in the brochure, if read, could even moderate the appreciation of the level of risk involved in the activity. The brochure describes whitewater rafting as “extreme fun” and “an adventure”.
Certainly the brochure contains a warning about the risks of whitewater rafting, but to my mind it does not provide any more information about these risks than was in the document actually signed by the plaintiff on the day of her accident.
The document which the plaintiff signed was headed “Acceptance of Risk Agreement”. The plaintiff was quite correct, as a matter of law, when she said that it was not an agreement and my characterisation would be that it is a signed acknowledgment of risk.
The opening paragraph of the acceptance of risk document is:

“I am aware that during my participation in any activity arranged by Penrith Whitewater, its employees or agents, certain risks or dangers may occur which may include, amongst others:
Physical exertion to which I may not be accustomed.
Bodily injury; strains; fractures; paralysis; disease; death.
The hazards of travelling in a raft, canoe or kayak in rough river conditions (including, but not limited to being thrown into unfamiliar water, risks inherent in water fights, swimming and other foreseeable risk related to whitewater activities); using paddles or other equipment.
Extremes of weather and temperature including sudden and unexpected change.
The possibility of accident or illness requiring the assistance of medical services.”

The second last paragraph of the document reads:

“I acknowledge that the enjoyment and excitement of an adventure activity is derived in part from risks incurred by the activity which may exceed those commonly accepted at home or at work. I accept all the inherent risks of my activity, and the possibility of personal injury, loss or property damage resulting therefrom. I waive all claims, which might arise against, and agree not to sue, Penrith Whitewater, its directors, employees, agents or contractors for any such injury loss or damage, which might be sustained by me as a result of my participation in such an activity.”

Above the plaintiff’s signature and personal details are the words:

“I confirm that I have read and understood this agreement prior to signing it, and it shall be binding upon my heirs, executors, assigns and next of kin.”

The plaintiff acknowledged that if she had read the words of the document she would have known that the activity involved risks including paralysis or death. She acknowledged that there were certain risks but said she regarded rafting as a sporting activity. She said that if she had read the document she would be aware of the risks that would take place within the activity.
The plaintiff acknowledged that the purpose of the life jacket was to stop a person drowning in the event that they fell out of the raft. She acknowledged that the purpose of wearing a helmet was safety, to protect her head. She acknowledged that she knew that there was a risk that she might fall out of the raft and into the water.
The plaintiff said that she was not told of the severity of how fast the water was flowing before the trip started, but that she had been around the course a number of times before the final trip on which her injury occurred. The plaintiff said that she had not fallen out of the raft at any time prior to the fall which led to her injury, but she said that earlier in the session the raft had stopped in a shallow area and everyone had stepped out of the raft. This accorded with evidence later given by the defendant’s employees, that there was an area next to some calm water where rafts could pull up for a while. The plaintiff acknowledged that after she and the other participants had a break beside the course, she got back into the raft and chose to continue with the activity.
The plaintiff could not recall how long the initial instructional session went for, but she did recall that the instructor had told her that if she fell out of the raft she had to lie on her back and lift up her legs to float with the current. She denied that the guide had provided any additional instructions. This was contrary to evidence about standard practice given by the guide, which will be dealt with below.
The plaintiff said that she was unable to estimate how long she was tumbling around in the water. She said that she could not estimate this in seconds but she said:

“It was continuous up until I reached the calm water. I can’t give you a time because I can’t tell you how under – what happened under the water, how I was thrown side to side, side to side, until it got me to the calm where the raft – where the participants had already been, done it smoothly, but I was still going like that.”

The plaintiff said that she had no idea when her ankle was injured and that she did not even realise anything was wrong until she attempted to put weight on it when on the land.
The plaintiff was shown an Incident Report Form, part of which she filled out. In that form when asked to give a description of the incident she said: “Fell out of raft and lost control hit right ankle somewhere along the way”.
The plaintiff was re-examined about her memory of how far in distance it was from where she fell out of the raft to the calm water. She said:

“It was quite distant. I can’t recall exact metres I fell out. But it wasn’t short. I remember tumbling a few times in and out, up and down, and going under, and coming up before I realised there’s nothing there anymore, I’m in calm water.”

The plaintiff was asked to estimate the distance between the point where she fell and the point where she got to the calm water and she said:

“I would say I can’t give you an exact amount, no, but at least – if I had to imagine it, around like that, and I had to put it in a straight line, possibly about – more than 50, 70 metres more.”

EVIDENCE OF MS HANADY CHOUR

Ms Chour was a friend of the plaintiff and she was in the same raft as the plaintiff on the day of the accident. She recalled signing a form and hearing a safety briefing which she described as a “very short, quick talk”. Her memory was that the plaintiff was seated opposite her on the raft. She saw the plaintiff fall from the raft. When asked where on the course that occurred she said “It was towards the last leg”. She was asked how far the fall was from the calm water and she said “Could’ve been about 20, 30 metres away”.
Ms Chour said that after the plaintiff fell in she could not see her at first, and then her head popped up. Ms Chour thought that the plaintiff was in the rough water for “a good five minutes or so”. After that five minute period she reached the calm water at the foot of the course.
It was suggested in cross-examination that the plaintiff was actually seated at the rear of the raft next to the guide but Ms Chour said she could not recall. The group in the raft had been around the course a number of times and the accident occurred towards the end of the session.
When cross-examined about her estimate of five minutes, she said:

“It was a – quite a bit of time and it was a long time because it took us quite a bit of time to actually see her rise from the water and then noticing that she was struggling, and until she got to that point, because we were figuring out what to do.”

Ms Chour said in cross-examination that when the plaintiff emerged from the water, shortly after falling in, she was in front of the raft. Ms Chour saw her come up in front of the raft. She saw one foot come up with no shoe and then she saw a hand holding the shoe. She and the others were laughing about the situation. She said that the plaintiff was struggling. Ms Chour said:

“She was just ducking in and out, in and out, and she was just making her way till we got to the calm parts.”

Ms Chour said that at no time was the plaintiff standing up after she had fallen out of the raft. Ms Chour said that quite a few people had fallen out of the raft before the plaintiff’s accident. She herself had fallen out. Ms Chour could not remember the journey being broken by the raft being pulled up next to a grassy area and people getting out.
Ms Chour was cross-examined about the things that were said during the safety briefing, but said that she could not remember what was said. She could not remember there being a demonstration of how to float with your feet up. She could not remember any additional information session with the guide who took the raft out.

EVIDENCE OF ASSOCIATE PROFESSOR EAGER

The plaintiff tendered the report of Associate Professor David Eager and he was called to give oral evidence and be cross-examined. Unfortunately Professor Eager operated on the basis of instructions given to him which were not borne out by the evidence. In particular, he was given an instruction as to where the accident happened which did not accord with the evidence given by the plaintiff or Ms Chour.
Professor Eager was critical of the safety briefing given at the stadium, but did not know the detail of the briefing, which was later in the case put forward by the witnesses for the defendant.
Professor Eager offered the opinion that there was an emergency stop device which could have stopped the water running down the course and the rapids and suggested that the button should have been pressed so as to stop the water. This opinion was met by evidence which will be dealt with later in this judgment, from witnesses called by the defendant, as to what happens when the Emergency Stop Button is pressed.
Professor Eager went to the site and saw an observation tower in the middle of the course. He suggested that someone should have been stationed in the tower, but that too was met by evidence called later in the case by the defendant.
Professor Eager suggested that an appropriate means of rescuing a patron who was in the water would have been to throw a rope to them, and this general proposition accorded with the evidence called for the defendant. Professor Eager was critical of the staffing levels at the stadium on the day of the plaintiff’s accident, but had not been shown documents, which had been provided some time ago to the plaintiff’s solicitors by the defendant, demonstrating what the staffing levels actually were.
Professor Eager was critical of the safety briefing because it did not include instructions such as adopting the “lying on back feet first position”. As previously recited, the plaintiff herself said that she was taught this in the safety briefing.
Many of these matters were taken up in the oral evidence of Professor Eager.
A central tenet of Professor Eager’s opinion was, as he expressed in oral evidence-in-chief:

“The fact that she wasn’t rescued in a timely fashion is, in my opinion, evidence that there weren’t sufficient people around to conduct that rescue.”

I reject that proposition as the only or probable inference available from the fact that the plaintiff was not rescued by a rope on the day of her accident. I will deal with other evidence on that topic below.

In cross-examination Professor Eager acknowledged that being thrown into the water was a “high probability event” and that a risk of whitewater rafting is that a person can suffer a fracture. Professor Eager had no experience of any other man-made whitewater rafting facility, but he had done whitewater rafting himself on natural rivers and had army training in handling small craft. He acknowledged that throwing a rope to a person in the water carries its own risks.
Professor Eager was asked to assume that the plaintiff fell out of the raft between 30 and 50 metres before the calm water at the end, and he agreed that if that were the fact then within 20 to 30 seconds after she left the vessel she would arrive at the calm water when floating out of the raft.
Part of the plaintiff’s case was that the plaintiff had fallen out of the raft in the rapids and suffered “hydraulic entrapment”. This is where a person is held in the one place by downward eddies of water. There is only one rapid on the course where this can occur. It is named “Jacks”. Professor Eager was asked to assume that if the evidence was (as given by Ms Chour) that the plaintiff fell in and then emerged in front of the raft that would suggest there hadn’t been any hydraulic entrapment. He agreed with that proposition.
It was put to Professor Eager in cross-examination that if the plaintiff fell in and was then in the water for 20 or so seconds, a perfectly reasonable response on the part of the defendant was to allow her to be taken by the flow of the water down to the calm water at the end and retrieve her there. He agreed with this proposition, subject to the plaintiff having her buoyancy vest done up tight and having been instructed to use the feet first position to float.
Professor Eager was asked to assume that if the emergency stop switches had been activated, it would have taken five minutes to have any effect on the flow of water through the course. He accepted that if that was so, that was a good reason not to activate the stop switch, as it would not have made any difference.

EVIDENCE OF MR MORGAN MASUKU

Mr Masuku is the senior activities instructor employed by the defendant at the stadium. He has been rafting since 1995 all over the world. He commenced working at the stadium in 2003. He trains all of the rescue services throughout Australia to assist in flood rescues. He has worked as a consultant on other man-made river facilities including at Salida in Colorado on the Arkansas River, at Charlotte in North Carolina and recently in Auckland. There is no other man-made river course in Australia of the same kind as that at Penrith.
He explained the working of the whitewater course at Penrith. The course is u-shaped with land in the middle, which was commonly referred to in the evidence as an island. Water runs down the course by gravity. There is a pond at the top which is fed by pumps which suck water from a large adjacent lake. When the course is running, water is continuously pumped from the lake into the pond at the top, where it runs down the course. The rapids are constructed by the concrete floor of the course being shaped into smooth bumps and dips. When the depth of the water becomes shallow because of these man-made features whitewater is created as the speed of the water increases when the depth decreases. The water runs roughly in a straight line for about 150 metres then the course turns left for 50 to 100 metres, then it turns left again for another 150 metres. The course ends in a large pond, which is where the plaintiff ended up after her fall, and which everyone referred to as the calm water. The water then flows out to a bottom lake.
A map of the course was tendered. There are two pedestrian bridges over the course. The second bridge, which featured in the evidence dealt with below, is on the last leg of the course, so from the map of the course tendered it looks to be about half way down the last 150 metre leg.
There was quite a bit of evidence to suggest that where the plaintiff fell in was at or above this second bridge. I will set out the evidence before I set out my findings of fact on this important matter.
Mr Masuku gave evidence that if the switches are engaged to stop the pumps sucking water from the lake into the course, you do not get an immediate reaction. Because water is running down the course by gravity, and because there is a large volume of water in the top pond, it takes about five minutes or more for the water to travel the channel and for the rapids to stop working.
Mr Masuku said that if the pumps are stopped and all of the water runs down the course and into the lower pond, that water will run out into the bottom lake. Anything in the bottom pond, including any person who is a swimmer, could get washed into the main lake.
Mr Masuku said that while ropes were suitable to be used to rescue people who fell out of rafts, it was not appropriate to use a rope with a flotation device attached. He said that this had been tried at the course and it had been found better and more practical to have ropes alone, rather than ropes with flotation devices attached.
He was asked if a person fell from a raft into the rough water about 30 to 50 metres from the calm water at the end of the course, how long it would take if they remained in the water to end up down the bottom in the calm water. He said that if the person was in the main current it would take 20 to 30 seconds. He agreed that if a person described being in turbulent water and being thrown up and down and up and down, that would indicate that they were in the main current all the time. He thought that the second bridge was about 50 metres away from the calm water.
Mr Masuku gave evidence that it was not practical to use the observation tower because from there you could not see the whole channel. The course was initially designed for the canoeing and kayaking events at the Sydney Olympics in 2000 and the observation tower was necessary for those sports, but was not otherwise used.
Mr Masuku gave evidence of standard practice when people arrived at the course, which was to put on their life jackets and helmets and give them a safety talk.
He said he had worked at the course since 2003, and there had never been an occasion where the number of staff on the island in the middle was insufficient to rescue people who fell into the water.
In cross-examination Mr Masuku explained why he thought that a rope with a floatation device was unsuitable. He said that it was just too hard to throw such a device more than a couple of metres. He said that according to the roster from the day of the accident there were two people working on the island in the middle and it was their job to watch patrons going around the course and throw ropes to assist anyone who needed such assistance. He said that it was not appropriate for the guide on the boat to throw a rope to someone who had fallen out. If the raft is in turbulent water and the guide is involved in throwing a rope, then there is a good chance that everyone in the raft will end up in the water. The guide doesn’t just sit in the raft, he has a paddle like everyone else, but he sits at the back and plays a large part in controlling the raft.
Mr Masuku gave evidence about the broad nature of the safety briefing, which as a summary was in accordance with later detailed evidence about the safety briefing which would, as a matter of standard practice, have been given.

EVIDENCE OF MR SAMUEL ANDREW

Mr Samuel Andrew had been employed at the stadium since 2008. He started out as a raft guide and he had been involved in kayak instruction and swift water rescue training. By the time of the plaintiff’s accident he was a trip leader. He estimated that on a weekend in November 2011, there would have been about 150 to 200 people per day take the rafting trips at the stadium.
He could not remember the plaintiff’s accident, but he had a vague memory of one occasion when he saw someone sitting in the sick bay area in a wheelchair and he assisted in talking to that person and calling an ambulance. He remembered it was a lady with an injured ankle.
He had no independent recollection of any briefing or instructions which he gave on the day, but he gave evidence about his standard practice. The trip leader is the person in charge of giving the safety briefing at the start of a trip. The defendant’s roster shows that Mr Andrew was the trip leader on 12 November 2011.
Mr Andrew gave a long and detailed explanation of the matters he covered, as a matter of standard practice, in his safety briefing at the start of each trip. This can be found at pp.184-186 of the transcript for 31 January 2018. The salient features of the standard safety briefing are:

All patrons are asked to sign the Risk Agreement forms;

Patrons are fitted with a life jacket and a helmet and given a paddle;

He explains the use of the paddle and the T-grip;

He talks about falling out of the raft and explains how patrons can pull themselves back into the raft;

He tells people that if you fall into the water you shouldn’t panic – the number one rule is to not try and stand up in the moving water because it is shallow – you need to get into the whitewater float position;

He then demonstrates the whitewater float position which is lying on your back with your feet up in front of you in the direction you are travelling, so that if you bump into anything you can push it off with your feet;

If the guide is shouting “feet up” that means you are being reminded to get into the whitewater float position.

There is an explanation that if someone on the island throws a rope to you, you hold onto the rope to make sure it doesn’t get tangled around you.

He explains what should be done if you go underneath the raft and it flips;

He tells the patrons that there is a chance that people can get hurt as rafting is an adventurous activity, and says that people can ask to stop at any time if it is getting too much for them.

The large group is then broken into groups of people to be allocated to each raft, usually eight people on a raft. The guide then takes their group from that point on.

Mr Andrews said that there were always two people on the island equipped with ropes and radios and sometimes there was an extra person in the middle doing safety. As the trip leader he would have been one of the two people on the island that day. He said that there were some places where you could get a view of the entire course which is just over 400 metres long. The two people on the island generally spread out so that they are on the far corners. He was not aware of any incident since he started in 2008 where there had been difficulty retrieving someone from the water because of a lack of staff. Sometimes he said you are a long way away when someone falls in so it takes time to get to the other side of the course. He said there had never been a specific issue to indicate that the stadium needed more people on the island.
The roster for the day of the accident was tendered and he explained the various employees and their tasks.
Mr Andrews said that from the second bridge to the calm water at the bottom of the course was about 75 metres.
In cross-examination Mr Andrew was asked whether, if someone is in the moving current, they have a greater chance of coming into contact with an object the longer they are in the water. He said: “If you are not in the whitewater float position”. He described the part of the course which creates the rapids as “probably more like a skate park, if you imagine smooth concrete with lumps”.
Mr Andrew acknowledged that the safety briefing was not the same word for word each day, but he said the key points were identical and were always covered them in the same order. He said that these briefings always took ten minutes and they were never over in three to four minutes. He acknowledged that there was no individual questioning by the trip leader of the 75 to 100 people present for a trip session. He said that from time to time during the briefing he asked whether there were any questions and whether everyone was ok with what he had covered so far.
Mr Andrew acknowledged that it was better to get someone out of the water as quickly as possible and get them back into the group. If the group was together the guide could keep an eye on everyone and save time.
Mr Andrew said that the ropes themselves were buoyant and would float in the water. He said that over the years he had seen hundreds of people who had fallen out and who had been able to swim to the side of the channel, where the water was calmer. He had seen people panicking in the water and acknowledged that it was appropriate to come to their aid by throwing them a rope. He too said that the guide throwing a rope from the raft was dangerous because there were two moving components. He said that he had thrown ropes from the island to hundreds of people.
Mr Andrew confirmed that if the pumps were turned off it would take about five minutes for the water to become calm. He said that a swimmer would travel from the second bridge to the start of the calm water, a distance of 75 metres, in less than 30 seconds.

EVIDENCE OF MR ALAIN ACOSTA

Mr Alain Acosta was the guide in charge of the raft in which the plaintiff was a participant on the day she had her accident. He has been rafting since 2000, and has significant experience in that field. He could not remember the particular day when the plaintiff’s accident occurred. He was shown an Incident Report Form and acknowledged that it had been filled out in his handwriting. His practice was to ask the injured person what happened and to record that as the description of the incident. He recorded on the form that the fall happened “above” the second bridge, but elsewhere in the form he said “about” the second bridge. English is not Mr Acosta’s first language, and there was some doubt, even after he was asked questions about his choice of words, what he meant.
He thought that the distance between the second bridge and the calm water at the foot of the course was about 25 metres but he could not say exactly how far. He has swum that distance and said that it would take 20 or 30 seconds.
Mr Acosta was asked to consider whether or not, if the plaintiff fell out of the raft near the second bridge she could be in the water for five minutes. He said that was very unlikely. His reason for that opinion seemed to me to be common sense. He said:

“Because it doesn’t take that long to swim that distance. It might feel that way, but it won’t take that long.”

Mr Acosta said that when he was a guide his usual practice was to check the life jackets, show the patrons how to paddle forwards, backwards and how to spin. He gave instructions on what to do if patrons fell into the water and where to sit in the boat, including moving if the raft was heading towards an obstacle. He reminded participants that if they fell into the water they had to keep their feet up as soon as they could.
In cross-examination Mr Acosta acknowledged that he could not say where the plaintiff fell into the water. He said that if a participant fell out of the raft, the first thing the guide should do would be to try to retrieve that person before they got too far away. If the patron became separated from the raft, then the guide should keep an eye on them.
Mr Acosta had heard the safety briefings given by trip leaders on many occasions, and said that they were longer than the three minutes suggested to him.

FINDINGS OF FACT

Much of the evidence of the plaintiff concerning the events on the day of the accident was vague, but that is understandable as the fall from the raft and the passage through the rapids was a sudden event. I have doubts about the reliability of the evidence of the plaintiff on medical and employment matters (dealt with below), but I did not doubt the reliability of the plaintiff in relation to the liability evidence.
The evidence of Ms Chour was in the same vein. There were many things that she could not remember, but that is not surprising given that she was simply going out, like the plaintiff, for a fun day. One aspect of the evidence of Ms Chour was in my view improbable, that being the length of time that she says the plaintiff was in the water after she fell from the raft. I will deal with that below.
I had no doubts about the credibility and reliability of Associate Professor Egar, but as I have already recorded, his evidence was of very restricted value since he had worked on a number of factual assumptions which were not borne out by the evidence. He made appropriate concessions in cross-examination, but the strength of his evidence, as in the case of every expert, depends upon how many of the basal facts were established.
I was impressed by Mr Masuku, Mr Andrew and Mr Acosta as witnesses. All three were highly qualified in whitewater rafting. All three gave their evidence in a dispassionate manner and did not overstate things. They all frankly acknowledged that they could not remember the particular day of the incident. However, all gave evidence about standard practice, and were quite firm about the practice which they would have followed on the day. Further, all three witnesses gave evidence which was consistent about the standard practices which operated at the stadium.
I make the following findings of fact.
The plaintiff attended the defendant’s whitewater rafting stadium on 12 November 2011 and took part in rafting on that day.
The plaintiff had no experience in such an activity prior to her attendance.
The plaintiff was given and signed an acceptance of risk document.
The document was in plain English and warned the plaintiff of the risks of whitewater rafting, including the particular risk which came to pass on the day of her accident.
It may well be that the plaintiff gave little or no attention to the risk document, but it was there to be read and she did not have to sign it unless she was willing.
Further, a reasonable person in the position of the plaintiff would have read the document and appreciated the risks involved in rafting.
Counsel for the defendant submitted that I should find that a reasonable person in the plaintiff’s position would have read the brochure which was available at the point where the plaintiff entered the stadium, before she signed her risk document and before there was any safety briefing. I decline to make that finding. I fail to see why a person who has already bought a ticket to the stadium, and who is simply in the process of entering the stadium with a view to embarking on “extreme fun” as the brochure describes whitewater rafting, would stop, pick up the brochure, read it in detail and absorb anything from it. No patron was asked to take a copy of the brochure. No patron was asked to read a copy of the brochure. Further, I do not think that the brochure gave any further information about the risks than was already in the risk document which the plaintiff did sign.
The plaintiff was then given a safety talk, along with every other participant at that time at the stadium, by Mr Andrew.
The safety briefing covered all of the matters set out in Mr Andrew’s evidence.
The safety briefing took about ten minutes.
The safety briefing included a warning that participants could fall from a raft into the water and that if they did so, they should adopt the whitewater float position, lying on their back with their feet up and facing forward. There was also a verbal warning that they could be injured.
Mr Acosta was the guide assigned to the raft in which the plaintiff, Ms Chour and other friends were seated on the day of the accident.
Mr Acosta gave a further safety briefing, in the terms he set out in his evidence, in accordance with his usual practice.
The raft in which the plaintiff and Ms Chour were passengers then set off and traversed the course several times.

On one of those trips the raft was pulled up in calm water and all participants got out and had a short break.
The plaintiff got back in the raft and chose to continue with the activity.
Well prior to the plaintiff’s accident there were several instances of patrons falling into the water from the raft, not only from Mr Acosta’s raft, but from other rafts seen by the plaintiff and Ms Chour.
Towards the end of the hour which had been planned for the rafting activity, the plaintiff fell from the raft into the water.
This happened when the raft was in rough water.
The plaintiff was tossed about in the rough water and had difficulty righting herself.
The plaintiff became separated from the raft.
The plaintiff first emerged from under the water in front of the raft and at that point she was missing a shoe.
The plaintiff continued in the water being taken down the course, remaining in the current and the rough water for the entire journey.
The journey down the rough part of the water ended in the calm water pond at the bottom of the course.
The distance travelled in the water by the plaintiff was about 75 metres. This accords with the distance estimate given by both the plaintiff and Ms Chour. It also accords with the fall into the water being at about the position of the second bridge.
There was no other evidence to suggest that the distance was anything particularly greater than 75 metres.
I accept the evidence of the three employees of the defendant, plus Associate Professor Egar, that a person who was in the current and thus in the rough water would take about 20 to 30 seconds to travel down the course from where I have found that they were tipped out, until the calm water in the bottom pond.
I reject the estimate of 5 minutes given by Ms Chour as to the time that the plaintiff was in the water. Firstly, the plaintiff could not give an estimate of how long she was in the water. Secondly, it seems extremely unlikely that anyone would be in the water for five minutes. Thirdly, given that I have found as a fact that the plaintiff fell out at about the level of the second bridge and travelled about 75 metres downstream in the rough current, this would not have taken anything like five minutes. Lastly, there was evidence from the defendant’s employees that they had actually swum this distance (in the sense of floating down the course in the whitewater float position) and that it had taken about 20 to 30 seconds.
This finding is crucial in relation to some of the particulars of negligence. If the plaintiff was in the water for five minutes then obviously she could have been rescued long before that time. If however she was only in the water for 20 or 30 seconds, then there may not have been a practical opportunity to rescue her.
Further, the longer she was in the water the more chance there was, on a probabilistic basis, that she could suffer a fractured ankle. I will return to those issues.
I find that somewhere on the journey of about 75 metres the plaintiff fractured her ankle, but the evidence does not enable me to say that it happened at any particular point. Given that I have accepted that the plaintiff said that she was in the rough water all the way until the calm water at the bottom, the injury could have happened anywhere.
If the injury happened as soon as she fell out of the raft, then there would have been absolutely no opportunity to throw a rope, rescue her and prevent the fractured ankle. The longer she was in the water then theoretically the more opportunity there was to do this. This is also a matter to which I will return.
I find that the plaintiff was not hydraulically entrapped when she fell out of the raft. The fact that she bobbed up in front of the raft, according to the evidence of Ms Chour that I have accepted, demonstrates that she was not hydraulically entrapped. Associate Professor Eager agreed that on those facts, the plaintiff was not hydraulically entrapped.
At no time when the plaintiff was floating down the course was she thrown a rope by any employee of the defendant.
On the day of the accident there were two employees of the defendant on the island, who were equipped with ropes that they could throw to patrons in the water in order to rescue them.
It was not appropriate or sensible for a guide in a raft to throw a rope to someone in the water, as that would involve the guide abandoning control of the raft with other people in it, often at a point where there was rough water.
There were about three to four hundred patrons of the stadium in summer each weekend and additional patrons during the week. The numbers were less than that in winter.
From 2003 onwards (the earliest date at which any of the employees who were witnesses had been employed) there had never been any occasion when staffing levels had caused a problem about retrieval of patrons from the water.
That meant that over 100,000 patrons, and probably many more, had done the course (several times each) without a problem ever arising in the nature of insufficient staff being available to rescue a person by using a rope thrown from the island.

NEGLIGENCE AND BREACH OF STATUTORY WARRANTY

The provisions of s 5B of the CL Act apply to both the claim in negligence and the claim under the ACC Act – Motorcycling Events Group Pty Limited v Kelly [2013] NSWCA 361 at [150]. Both counsel agreed that this was so.
Section 5B provides:

“General Principles
(1)   A person is not negligence in failing to take precautions against the risk of harm unless:
(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)   the risk was not insignificant, and
(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.”

Counsel for the defendant very properly conceded that there was a risk that the plaintiff would suffer harm which was foreseeable – s5B(1)(a); and that the risk that the plaintiff would suffer harm was not insignificant – s 5B(1)(b).
That leaves the questions of identifying what precautions a reasonable person would have taken against the foreseeable risk, and further, whether there was a failure to take those precautions.
The Statement of Claim filed on 11 November 2014 particularised eight breaches of statutory warranty, which were also pleaded as particulars of negligence at common law.
Particulars (a) and (b) were generic allegations of failing to supply services with due skill and care, and failing to take any or adequate precautions for the safety of the plaintiff. Those first two particulars did not identify the reasonable precautions which it is alleged should have been taken.
Those particulars which did allege the precautions which should have been taken, and which were not, were as follows:

“(c)    Failure to give a proper instructional presentation of the rafting activity and associated risk of participation;
(d)   Failure to warn adequately at all the plaintiff as to the dangers associated with the rafting activity;
(e)   Failure to employ competent staff;
(f)   Failure to identify and observe the plaintiff was in a position of peril in the circumstances and take steps accordingly;
(g)   Failure to use rope lines to assist the plaintiff;
(h)   Failure to activate the Emergency Stop Button.”

PROPER INSTRUCTIONAL PRESENTATION

I have accepted the evidence of Mr Masuku and Mr Andrew as to the standard practice concerning the initial instructional and safety briefing. I have found that the briefing was ten minutes long and that it covered the matters set out in detail in the evidence given by Mr Andrew about his standard practice briefing.
I find that there was no failure to give a proper instructional presentation of the rafting activity and the associated risk of participation. The information given by Mr Andrew was full and complete. It was not suggested that there was something left unsaid, once his version of the briefing is accepted.
I also accept the evidence of Mr Acosta about his standard practice. He too gave a briefing to the participants in his raft, although it was shorter than that given by Mr Andrew. Standard practice, which I find was followed, would mean that many of the matters already said by Mr Andrew would have been reinforced by Mr Acosta. Further, Mr Acosta would have given a demonstration in the raft of various techniques to deal with any mishaps, including falling out of the raft.

FAILURE TO WARN THE PLAINTIFF

Having accepted the evidence of Mr Masuku and Mr Andrew about the standard initial briefing, I find that the plaintiff was adequately warned about the dangers of falling out of the raft and was adequately instructed that if this happened, she was to adopt the whitewater float position. The plaintiff acknowledged that she was told that and that she did attempt to adopt that position. In my view it did not even need to be said that falling out of the raft in rapids could lead to an injury. That is just common sense.
In any event, the acceptance of risk document which the plaintiff signed, and which she knew she had to sign before she embarked on the activity, warned in plain English of the very risk which occurred i.e. a fracture. It may be that the plaintiff paid little attention to the terms of the risk document, but she is an educated person, and in her everyday employment deals with risk assessments. She could not have been ignorant of the overall content of the risk document. A reasonable person in her position would have read and absorbed it before signing it. It was not a particularly onerous task to do so, as the document is short and is expressed in plain English.

COMPETENT STAFF

The evidence of Mr Masuku, Mr Andrew and Mr Acosta included details of their extensive past experience in conducting whitewater rafting activities, not only on natural rivers but also on the course at Penrith. Mr Masuku had even greater experience, of artificial courses in other countries.
All three witnesses gave evidence of not only standard practice, but of training which was given to staff. There was no criticism to be made of the competence of these three witnesses. Nor was there any suggestion that anyone else employed on the day at the stadium was less than competent. Whether they carried out their tasks on that particular day in a competent manner is another matter, which will be dealt with below. I find that the defendant employed competent staff who were present on the day of the plaintiff’s accident.

EMERGENCY STOP BUTTON

The evidence was that there were emergency stop buttons which could have stopped the three pumps which sucked water from the main lake and forced it down the course. The pumps could be stopped one at a time or simultaneously.
I find that even if the Emergency Stop Button had been activated, it would have taken five minutes for the water in the top pond to flow by gravity down the course. It would have taken five minutes for the turbulence on the course to cease and for the rapids to cease flowing with whitewater.
On that finding, the pressing of the Emergency Stop Button would have had no effect on the predicament of the plaintiff, given the earlier factual finding I have made that after she fell out of the raft she travelled downstream for 20 to 30 seconds until she reached the calm water in the bottom pond.
Further, there were risks involved with pressing the Emergency Stop Button. Anyone who ended up in the bottom pond, after the button had been pressed, could be washed out into the main lake. That would carry its own risks.

OBSERVING AND RESCUING THE PLAINTIFF

I have found that the plaintiff fell out of the raft at about the location of the second bridge, and that from there she was in the rough water for 20 to 30 seconds before she arrived downstream in the calm lower pond. I have found that there were two competent staff on the island in the middle of the course who were equipped with ropes which could have been thrown to anyone who fell into the water and needed rescuing. I have found that the plaintiff was instructed in the whitewater float position and that even though she was shocked by falling into the water, she had the presence of mind to try to adopt that position.
I find that even though Mr Acosta, the guide on the raft, was close by the plaintiff once she fell into the water, it was impractical, and indeed dangerous, for him to abandon control of the raft in the rapids to try to throw a rope to the plaintiff. To do so would have risked the whole raft being tipped over, and would have carried the further risk of the rope becoming entangled around the plaintiff in the rough water.
It goes without saying that if the submission of counsel for the plaintiff that the plaintiff was in the water for five minutes had been accepted, that would have given the defendant ample opportunity to rescue the plaintiff by throwing her a rope from the island. I accept the evidence given on behalf of the defendant that it is preferable to keep the crew of the raft together and to get people back into the raft as soon as possible.
If the plaintiff had been in the water for five minutes, then there would have been force in the submission by counsel for the plaintiff that on a probabilistic basis, leaving her in the water for that length of time increased the risk of any injury such as a fractured ankle. Again on a probabilistic basis, unless the plaintiff had been pulled out of the water quickly, the injury could well have happened during the excessive time the plaintiff was left in the water.
However, given my factual finding that the plaintiff was only in the water for 20 to 30 seconds, and given that I have accepted the plaintiff when she says that she was in the rough water all of the time, before she arrived in the calm bottom pond, I find that there was no reasonable opportunity for the defendant to throw a rope to the plaintiff and rescue her during the time she was in the rapids.
Further, the injury could well have happened the second she fell out of the raft, although I can make no finding as to when in the plaintiff’s journey from the fall to the calm water the injury did occur. It seems logical that it happened at some point when she was in the rapids and being thrown around.
I find that not only was there no opportunity for the defendant to throw a rope to rescue the plaintiff, but that given that the plaintiff was nearly at the end of the course when she fell out of the raft, and that she had adopted the whitewater float position, it was quite acceptable, and indeed prudent, for the plaintiff to be allowed to simply float down the rapids in the whitewater float position, rather than trying to throw a rope to her in the rough water, which would have carried its own significant risks.
I therefore find that the plaintiff has not established on the balance of probabilities any of the particulars of negligence, which are also particulars of breach of statutory warranty. In those circumstances the plaintiff fails in her case and there will be a judgment for the defendant. It is necessary that I consider other matters raised by both parties.

OBVIOUS RISK

The defendant pleaded reliance on several different sections in the CL Act.
In submissions, counsel for the defendant reduced the legal issues in play under the CL Act. One matter which continued to be relied upon by the defendant was s 5L which provides:

“No liability for harm suffered from obvious risks of dangerous recreational activities
(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.”

Section 5L applies not only to the negligence claim, but also to the breach of statutory warranty claim: Kelly at [182-187]. Counsel agreed on this point.
Section 5K defines “dangerous recreational activity” to mean “a recreational activity that involves a significant risk of physical harm”. Counsel for the plaintiff, very sensibly, conceded that the whitewater rafting engaged in by the plaintiff was a “dangerous recreational activity”.
Section 5K provides:

“Obvious risk has the same meaning as it has in Division 4.”

In Div 4, s 5F deals with the meaning of “obvious risk”. It provides:

“(1)   For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)   Obvious risks include risks that are patent or a matter of common knowledge.
(3)   A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)   A risk can be an obvious risk even if the risk (or a condition or circumstances that gives rise to the risk) is not prominent, conspicuous or physically observable.”

The risk as characterised by the defendant was “the risk of falling into the water and suffering injury”. I have found that the plaintiff was told about the risk of falling into the water in the safety briefing, and further that she had observed other participants fall into the water in the period of almost an hour before she fell in.
The acceptance of risk document which the plaintiff signed told her that there was a risk of injuries in participation including the risk of a fracture, and further told her that the risks of participation were greater than ordinary household or work risks. Further, the plaintiff had the opportunity to observe the whitewater rapids during several trips around the course, and had the opportunity during the break at the side of the course, to decline to participate further. Anyone seeing the force of the water sluicing through the rapids, so as to create whitewater, would have realised that there was an obvious risk of harm if a person fell out of the raft and was carried through the rapids.
I find that the risk of a person falling into the water and suffering injury, either through the fall itself, or through the subsequent passage through the whitewater, would have been obvious to a reasonable person in the position of that person, within the meaning of s 5F of the Act.
However, that is not a complete answer to the way in which the plaintiff put her case.
Counsel for the plaintiff put the submission as follows:

“However, s 5L, CLA, is not engaged because the harm did not arise by reason of an ‘obvious risk’. The prospect of hydraulic entrapment was not obvious. Further, the matters summarised above by way of breach of duty care were similarly not obvious (it is not obvious that the defendant would fail to come to the plaintiff’s aid, especially in circumstances where a guide had been paid for and when she was in the water for a considerable period of time). Also, no person in the plaintiff’s position could have known the location or dimensions of the concrete structures throughout the course.”

If the facts found by this court were those put forward on behalf of the plaintiff, there would have been force in that submission. However, I have already found that there was no hydraulic entrapment of the plaintiff. Further, I have found that the plaintiff was not “in the water for a considerable period of time”, but was in the water for 20 to 30 seconds. I have found that it was not a breach of duty of care or a failure to take reasonable precautions to not rescue the plaintiff in that short period of time.
The difference between the two submissions is this. The defendant in effect submitted that the obvious risk was of falling into the water and suffering an injury. The plaintiff submitted that the obvious risk was, in effect, being left in the water and the defendant failing to come to the plaintiff’s aid when she was in the water for a considerable period of time. The facts which I have found do not enable that submission to be accepted.

On the facts I have found, I find that the plaintiff was engaged in a dangerous recreational activity, being whitewater rafting at Penrith Whitewater Stadium. Further, I find that there was an obvious risk that a participant at the stadium would fall out of the raft and suffer an injury.
I find that s 5L has been made out and that the defendant is not liable in negligence for harm suffered by the plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. That conclusion also leads to a judgment for the defendant.

INHERENT RISK

Section 5I of the CL Act provides:

“No Liability for Materialisation of Inherent Risk
(1)   A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2)   An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
(3)   This section does not operate to exclude liability in connection with a duty to warn of a risk.”

Section 5I applies not only to the negligence claim but also to the breach of statutory duty claim: Kelly at [182-187].
The defendant submitted that in this case there was always a risk that the plaintiff could slip into the water and suffer injury. It was said that that risk could never be avoided by the exercise of reasonable care and skill. Counsel for the plaintiff submitted that s5I was not engaged because the harm suffered was not an inherent risk. In particular, it was submitted that it could have been avoided by the defendant rescuing the plaintiff from the water using a rope. An alternative way of putting it was that the defendant was in breach of both the duty of care and the statutory warranty by allowing the plaintiff to remain in the rapid water where she was injured.
In Wyong Shire Council v Vairy [2004] NSWCA 247 Justice Tobias said at [164]:

“An inherent danger is a danger (or risk) attaching to a condition or activity that cannot be removed by the exercise of due care… that is, by exposing oneself to a condition or activity involving an inherent danger one has thereby become subject to the possibility of the danger crystallising.”

His Honour made reference to Prast v Town of Cottesloe (2000) 22 WAR 474, where the court said that the risk of being dumped by a wave while body surfing was not only obvious, but was inherent. Even the exercise of reasonable care on the part of the surfer would not remove the danger. Another example given by Justice Tobias was the medical case of Rogers v Whitaker (1992) 175 CLR 479. That case involved eye surgery, which carried the inherent danger of the patient’s other eye become blind due to the sympathetic ophthalmia. That danger was not one which could be completely eliminated even by the best surgeon in the world. It was an inherent danger of the operation. Thus there was a need for the surgeon to warn the patient of that inherent risk.
On the way the plaintiff put her case, the risk of being left in the water for too long and thus suffering an injury was not an inherent risk. It was one which could have been guarded against by the exercise of reasonable care. However, I have found against the plaintiff in that regard on the facts.
The way in which the defendant put the case was that there was an inherent risk of falling into the water and suffering an injury and that risk could never be avoided by the exercise of reasonable care and skill. Certainly it was obvious from the nature of the activity, as well as the plaintiff’s observations of other participants falling into the water on a regular basis, that there was an inherent danger of falling out of the raft in the rough water. However it could not be said that an injury after a fall from a raft could never be avoided by the exercise of reasonable care. For example, if a patron fell out of a raft and could not swim, an employee at the stadium equipped with a rope could not stand idly by and watch the person drown. The exercise of reasonable care would save that person in the water.
I find that the risk of a participant falling out of the raft and suffering an injury was not necessarily an inherent risk of the activity. I reject the defendant’s submission on inherent risk.

THEORETICAL ASSESSMENT OF DAMAGES

Because the plaintiff has failed in her claim, on the bases set out above, there will be no damages awarded to her. Nevertheless, in case there should be an appeal against my decision on liability, and that appeal is successful, I will make a theoretical assessment of the damages which I would have awarded to the plaintiff had she succeeded.
The plaintiff was born in 1979 and completed the Higher School Certificate in 1996. She worked at a supermarket and then in the travel industry. In 1998 she obtained a TAFE Certificate in Business Administration and a Diploma in Community Service Welfare. The plaintiff then worked in a recruitment business, the life insurance industry, and then for two years as youth development office with a community organisation. She mentored students from high schools and ran anger management programs for students. This was funded through the Department of Corrective Services.
The plaintiff was married in 2000. Her first child was born in 2003 and her second in 2005. The plaintiff and her husband separated on 4 July 2014.
In January 2006 the plaintiff commenced work full-time at Bellfield College, which is a high school. The plaintiff was still working there full-time when she had her accident in November 2011.
When the accident occurred the plaintiff was taken by Ambulance to Nepean Hospital and then transferred to St George Hospital which was closer to her home. On 15 November 2011 an operation was performed on her fractured right ankle. She was discharged from hospital in a plaster cast. The plaintiff was off work completely and returned to Bellfield College in February 2012. She gave evidence that she requested that her days be reduced to two and half days per week.
The plaintiff returned to St George Hospital on 12 June 2012 where a second operation was performed which involved a bone graft. The plaintiff was again off work completely and returned to Bellfield College on 8 October 2012, again she said to two and a half days a week.
The plaintiff gave evidence that she ceased working at Bellfield College in April 2014 because the severity of her pain was getting too much. She had to drive for an hour each way from home to Bellfield College and back. She said that she could not cope with the daily inflammation, swelling and constant pain. Walking up stairs led to pain which was extremely sensitive. At Bellfield College she had to do a fair bit of walking between the junior and senior campuses. The ankle became inflamed during the day and when she came home the plaintiff would elevate the leg and take anti-inflammatories.
After leaving Bellfield College the plaintiff obtained employment at Bright Learning Family Day Care preparing programmes for educators, to assist those persons to educate children who were in their care. There was walking involved because she had to do home visits.
The plaintiff gave evidence that she had no choice but to do that work, even though it involved walking, because she had separated from her husband and needed to bring in income. She worked at Bright Learning Family Day Care from April 2014 to June 2015. The plaintiff said that she needed to take a break because “my marriage was falling apart”. The plaintiff also said that the stress she was going through from the injury, combined with the marriage breakdown, led to her stopping work.
In 2015 the plaintiff obtained a certificate in Early Childhood Education and a certificate in Training and Assessment. In June 2015 she obtained employment at Caring Family Day Care for one day a week. She said she was only able to do one day a week because of her injury. This job involved visiting a lot more homes and the plaintiff said she could not work more than one day a week because of the pain in the ankle. That job came to an end in December 2016, because the travel to and from work was too great and it was putting too much strain on the plaintiff.
In 2016 the plaintiff obtained a diploma in Early Childhood and Education. She was then employed at Advanced Family Day Care, starting in January 2017. She was an educational leader there. That employment finished in April 2017 because the business shut down. That was full-time work. The plaintiff said that she probably had one day a week off because of her injury.
From April 2017 until the date of trial the plaintiff has been employed at Moorefield Girls High School as a community liaison officer, working one day a week. Since September 2017 she has also been employed at Red Roses Family Day Care for one day a week. At Moorefield Girls High School she is earning $298 a day and at Red Roses Family Day Care about $280 per day.
The plaintiff said that her plan is to go back to a full-time career. Had the accident not happened in 2011, her plan was to continue working full-time.
The plaintiff gave evidence that after her first operation her young sister Houda gave her domestic assistance for at least five to six hours each day. That went on for a couple of months. After the second surgery Houda was coming to the plaintiff’s home on a daily basis and doing the washing, vacuuming, mopping and helping the kids with their homework. That was about four hours work per day. The plaintiff also gave an estimate of six hours a day and said that this assistance went on for three months at that level. After three months the assistance dropped to about four hours a day.
The plaintiff still has assistance from Houda, who occasionally minds the children, puts out washing, does the vacuuming and mopping. Houda now comes over about three times a week. The plaintiff estimated that she did between six and ten hours per week nowadays.
The plaintiff gave evidence that she regularly took the medications Panadol Osteo and Nurofen. Nurofen costs $10 a packet and so does Panadol Osteo. These medications are taken every day and each packet lasts about week.
The plaintiff was cross-examined about the evidence she gave in relation to damages. She acknowledged that she had told two psychiatrists who she had seen for the purpose of the litigation that she started having marital problems because of the accident. She said that that was absolutely correct. When asked whether she had any marital problems before the accident she said “nothing unsolvable and like any other couple would…”. She denied having depression before the accident. When asked whether she had told the two psychiatrists (Dr Akkerman and Dr Samuell) the truth about the extent of any psychological problems which she had before the accident she said “absolutely”. The plaintiff said that she had never seen a psychologist or a psychiatrist before the accident.
The plaintiff was taken to an entry in a general practitioner’s notes dated 18 February 2005 which made reference to post-natal depression. The plaintiff acknowledged that she had suffered this. The plaintiff was shown a Mental Health Assessment prepared by her general practitioner in 2008. The plaintiff said that she was never told she had depression, but was told she had anxiety. Again the plaintiff was asked whether she had had problems in her marriage before the accident and she said “nothing that was not solvable”. The plaintiff was taken to an entry in the general practitioner’s notes in January 2008 where she was referred to a clinical psychologist for treatment because of problems in her marriage. The plaintiff acknowledged that she did see this psychologist.
The plaintiff was shown a document written by that psychologist which recorded a violent episode which occurred on 27 May 2008 leading the plaintiff to decide to separate from her husband. She plaintiff acknowledged that her earlier evidence that she had no problems in her marriage before the accident was not accurate and said: “I actually did not think that far back ten years ago to even now remember the violent episode”. The plaintiff said that after that violent episode things got better and calmer and the couple got back together again.
The plaintiff said that she strongly believed that the injury to the ankle was the cause of her marital problems. On more than one occasion when questioned about her marriage the plaintiff became quite upset in the witness box. It is clearly a matter of great sorrow to her that she has gone through a marriage breakdown and a separation.
The plaintiff was then cross-examined about her ability to work after the accident. It was suggested that she had reduced her working hours because she was having problems in the marriage and she said: “Not at all”.
The plaintiff was questioned about her evidence concerning reducing her hours at Bellfield from full-time to two and half days a week. The plaintiff was a contractor at Bellfield College and submitted an invoice and a time sheet every week or fortnight. She was shown a timesheet for the period 19 November 2012 to 30 November 2012, at a time when the plaintiff had given evidence she was only working for two and half days a week. The time sheet recorded 70 hours of work in that period and the plaintiff acknowledged that in that fortnight she did work full-time.
The plaintiff was then shown the time sheet and an invoice for the period 22 October 2012 to 2 November 2012 which also showed 70 hours work for that period. In spite of those documents the plaintiff continued to insist she never resumed work full-time.
The plaintiff was shown documents for the period 26 August 2013 to 20 September 2013 which showed 78 hours of work. She was shown documents for the period 9 September 2013 to 20 September 2013 which showed 62 hours of work. The plaintiff again insisted that she only ever worked two and a half days a week but acknowledged that on those time sheets it had been correctly recorded that she worked full-time.
The plaintiff’s younger sister Houda Kdouh gave evidence. She was born in 1995. She assisted the plaintiff after her first surgery every day for about three months. She said that she probably did about ten hours per day in the first two weeks after the first operation and then continued to assist for “about three months”. She was helping full-time in this period. She visited her sister each day for between eight and ten hours and in that time did about five hours of physical assistance.
After the second surgery she also helped her sister “but not as much as before”. Nowadays she visits about three times a week and helps for a couple of hours a week.
The plaintiff tendered medical material from St George Hospital. The plaintiff did not tender any reports from treating general practitioners or from the surgeon involved in the two operations. There was a medico-legal report from Dr Guirgis, orthopaedic surgeon, dated 2 September 2015 and a medico-legal report from Dr Akkerman, a psychiatrist, dated 25 August 2015.
These reports were of some antiquity by the time of the trial. So were the defendant’s medical reports, which will be dealt with below.
The court was left in the unsatisfactory position of attempting to assess damages with no up-to-date medical material and no material from the treating doctors.
The report from Dr Akkerman was of very little value. Dr Akkerman, who saw the plaintiff on 24 August 2015, recorded that there had been “some strain in her relationship with her husband”, and that her husband “has been very understanding”. That was just not true, as the plaintiff separated from her husband on 4 July 2014 according to her own evidence.
Dr Akkerman recorded the plaintiff’s past psychiatric history as “nil”. Again, that is just not accurate. Dr Akkerman diagnosed Post-Traumatic Stress Disorder and Major Depression. He gave no reasons or analysis for those diagnoses, and in any event they were based upon an incorrect history as to significant matters in the plaintiff’s past. I completely disregard his report.
Dr Guirgis, orthopaedic surgeon, said that the plaintiff had undergone a closed reduction of her ankle fracture at St George Hospital straight after the accident. She had a cast on her leg for six weeks. A second surgery was performed in June 2013 (it was actually June 2012) on the right ankle. A bone graft was harvested from the distal tibia and was used to augment the healing of the fibular fracture. There was a plaster cast for eight weeks. The response to the surgery was poor.
MRI scans had shown the onset of traumatic osteoarthritis. Further surgery had been advised by Dr Jones, but there was no evidence that it was planned or that the plaintiff was going to have it.
Dr Guirgis said that the accident resulted in slowly worsening post-traumatic symptoms and disability relating to the spiral fracture of the distal fourth of the right fibula. There was post-traumatic mechanical derangement of the right ankle joint itself.
The defendant tendered two reports from Dr Bentivoglio, an orthopaedic surgeon. In a report dated 28 October 2015 Dr Bentivoglio confirmed the nature of the fracture and accepted that complaints of ongoing pain in the ankle were likely to be the result “of the talar dome lesion she has present in her ankle”. He thought that all of her ongoing symptoms related to the ankle injury. He saw no reason why the plaintiff could not have returned to full-time work after a suitable period of recovery from both operations.
Dr Bentivoglio said the plaintiff was due to have an arthroscopic debridement of her ankle under the Medicare system. The cost would be zero but he was doubtful that it would make a great deal of difference to her symptoms. He thought that she was likely to have ongoing symptoms for an indefinite period.
The defendant also tendered a report from Dr Kim Edwards, a surgeon. He saw the plaintiff on 28 October 2015. He recorded the history of the injury and the surgical treatment. He noted a complaint of tenderness to firm palpation just above the incision on the right ankle. There was a full range of movement of the foot and ankle and no wasting.
I prefer the evidence of Dr Bentivoglio to that of Dr Edwards. Firstly, Dr Bentivoglio is an orthopaedic surgeon and Dr Edwards is a general surgeon. Secondly, the opinion of Dr Bentivoglio is largely in accord with the opinion of Dr Guirgis, another orthopaedic surgeon.
The defendant sent the plaintiff to Dr Samuell, a psychiatrist. He saw the plaintiff on 1 February 2016. He was told that there was no history of psychological difficulty. Dr Samuell said that the only upsetting content of the plaintiff’s interview related to the breakdown of her marriage. He thought that she did not suffer from a psychiatric illness at the time.
Dr Samuell was asked to provide a supplementary report on 12 August 2016. He was given documents which had been obtained under subpoena, indicating that there was a past psychiatric history which was more extensive than that revealed to himself or Dr Akkerman. There had been post-natal depression in 2003 and 2005, and anxiety and depression in 2008. There was a recording that Ms Miski in 2008 was the victim of domestic violence and assault.
This new material did not alter Dr Samuell’s previous opinion, which was that the plaintiff presently suffered from no psychiatric illness.
Dr Samuell was the only psychiatrist who had accurate information about the plaintiff’s previous problems of a psychological nature, and in particular the problems in the marriage including a significant incident of domestic violence which led to a separation in 2008. Because he had all of the information about the plaintiff and Dr Akkerman had none of it, I accept the opinion of Dr Samuell.
The plaintiff tendered taxation Notices of Assessment for the years 2010-2015 inclusive and taxation returns for 2016 and 2017. While the defendant cross-examined the plaintiff about certain tax invoices and time sheets, there was no cross-examination on the material from the Australian Taxation Office. During submissions I drew to the attention of counsel for the plaintiff certain anomalies between those returns and the plaintiff’s evidence, and invited counsel to make any submissions which he saw fit. I record that no submissions were made, although I do not say that in any way critical of counsel.

As recorded above, the plaintiff gave evidence that she worked full-time at Bellfield College from 2006 until her accident in November 2011. The 2010 Notice of Assessment shows that her income for that tax year was nil. That is hard to understand, in the light of the fact that she worked full-time. The Notice of Assessment for 2011 showed a taxable income of $14,157. In the tax year 2012 the plaintiff was off work completely from November 2011 to February 2012 and then reduced her hours, so she said, to two and half days a week from February 2012 to June 2012. Her taxable income in this year was $13,303, which is only $854 less than the previous tax year in which she worked full-time and she was uninjured.
The plaintiff’s Notice of Assessment for 2013 shows a taxable income of $8,948. In this period she said she was off work from June to October 2012 and then worked two and a half days a week from November 2012 to June 2013.
The Notice of Assessment for 2014 showed a taxable income of $21,006. The plaintiff’s evidence during this time was that she worked two and half days a week from July 2013 to April 2014, and then worked part-time at Bright Learning Family Day Care for the last two months of the tax year. In spite of this she earned 50% more than she did when uninjured in the year before the accident.
In tax year 2015 the plaintiff’s taxable income was $29,377. The plaintiff gave evidence that she worked this entire year at Bright Learning Family Day Care. Her income in this employment was double what she earned in the 2011 tax year immediately before the accident.
The plaintiff’s 2016 tax return was tendered. The plaintiff’s evidence was that in this 12 month period she worked one day per week. Her taxable income was stated on the return to be $18,004. This is approximately $4,000 more than the plaintiff was earning back in 2011 when she was working five days a week. The tax return disclosed business income of $54,669 and total expenses of $36,665 leaving a taxable income of $18,004.
The plaintiff’s evidence about the 2016 tax year was that she started working at Caring Family Day Care in June 2015 working one day a week for an eight hour day. She worked there until December 2016 and she described her work as similar to what she did at Bright Learning in that it involved visiting homes and assessing the educators or carers located in those homes. She did these visits for half a day and for the other half she would come back to the office and write reports on people that she had assessed.
The 2016 tax return in box P2 described the plaintiff’s business or professional activity as: “Child Minding (babysitting in the home)”. A page of the return was headed “Business Items Worksheet”. It set out the business income of $54,669 and the total expenses of $36,665 leaving a nett income of $18,004. The business expenses were said to be:

•

Admin Levy

$7,770

•

Fuel and oil

$2,340

•

Snacks for kids

$2,860

•

Kids excursion

$2,692

•

Electricity

$1,850

•

Repairs and maintenance

$950

•

Toys for kids

$2,140

•

Printing

$560

•

Disposable plates

$325

•

Hygienic products

$415

•

Clothes for kids

$385

•

Insurance

$540

•

Telephone

$654

•

Rent $600 per week x 40%

$12,480

•

Internet

$714

Not only was the description of the plaintiff’s business activity in that return in complete conflict with her evidence about what she was doing, but it is difficult to see how most of those tax deductions had anything at all to do with working one day a week for Bright Learning doing half a day of assessments of educators and carers and another half a day writing up reports on those visits.
The 2016 tax return cried out either for an explanation in the plaintiff’s case or cross-examination in the defendant’s case. Neither occurred and the court is left in the dilemma of a document being tendered in the plaintiff’s case which casts grave doubt upon the credibility of the plaintiff’s evidence about what she was doing in the 2016 tax year.
The 2017 tax return was also tendered. The business of the plaintiff was said to be: “Educational support services”, which does accord with the plaintiff’s evidence of what she was doing. Her business income was $13,728 and her expenses were $2,790, leaving a taxable income of $10,938. If those figures are right, it would have been a more rational decision for the plaintiff to remain as an in-home babysitter (as per her 2016 tax return), or do whatever she was actually doing in 2016, when her taxable income was 80% higher than 2017.
Again, the court would have been assisted in understanding how that return fitted in with the plaintiff’s evidence about what she was doing in the 2017 tax year by way of employment, either by evidence or explanation in the plaintiff’s case or cross-examination of the plaintiff.

NON-ECONOMIC LOSS

Damages for non-economic loss are governed by the provisions of s 16 of the CL Act. I find that the plaintiff fractured her right ankle and required two operations. The second of these involved a bone graft. I accept that she had several months away from work after each operation and that she has been left with residual disabilities being occasional pain, swelling and discomfort in the right ankle. I find that the level of her problems requires her to take Panadol Osteo and Nurofen on a daily basis to relieve her pain and discomfort.
I accept the opinions of Dr Guirgis and Dr Bentivoglio that the plaintiff has an ongoing physical derangement in her right ankle and that she will not get any better.
Counsel for the plaintiff submitted that this should be assessed at 30% of a most extreme case. Counsel for the defendant submitted that it should be assessed at 25% of a most extreme case. The plaintiff is still a young woman and she has many years ahead of her of pain and discomfort. I assess non-economic loss at 30% being $141,000.

PAST ECONOMIC LOSS

I find that the plaintiff could not work at all between November 2011 when she had her first operation and February 2012. I find that when she returned to work in February 2012 there was some interference with her earning capacity, but I do not accept her evidence that she reduced her hours to two and a half days per week. I have already referred to the evidence which casts serious doubts on her reliability and credibility in relation to employment matters.
I find that the plaintiff had a second operation on 12 June 2012 and was away from work for four months after that time because of the operation. I do not accept that the plaintiff then returned to work two and a half days a week. The documents shown to the plaintiff in cross-examination demonstrate that for several of the weeks in the next year or so, she was able to work full-time during an entire fortnight. I accept that there would have been some interference with her earning capacity.
I find that the plaintiff left work at Bellfield College in April 2014 because of the turmoil in her life caused by the breakdown of her marriage. I find that the broken ankle played no part in leaving Bellfield College.
The plaintiff asserted that she could not cope with the daily inflammation, swelling and constant pain and had to leave that employment. If that were so, I would have expected her to be seeking treatment from a general practitioner, and for the notes from that doctor to be put into evidence. There was absolutely nothing to corroborate the plaintiff in her assertion that she could not work because of the injuries suffered in the accident, and I do not accept her evidence in this regard.
I find that in the years after leaving Bellfield College the plaintiff made a conscious decision to only work for a few days a week and to retrain, because of the breakdown in her marriage and the need to care for her children as a sole parent. I do find that there would have been some minor interference with her earning capacity in those years.
Prior to the accident in November 2011 the plaintiff, in the previous full tax year, had a taxable income of $14,157. I will round this to $300 nett per week.
I assess the plaintiff’s damages for past economic loss as follows:

For three months after the first operation - $300 x 13 weeks

$3,900

Between the two operations (buffer)

$1,000

After the second operation - $300 x 17 weeks

$5,100

Between return to work after the second operation and trial (buffer)

$5,000

TOTAL

$15,000

For the future the defendant submitted that the assessment should be nil. The plaintiff submitted a “buffer” of $85,000. There were no calculations as to how that figure was reached.
I am of the view that a buffer approach would be the most appropriate. Given the plaintiff’s low level of present disability, but given that her problems are not going to improve, I find that there will be a minor interference with her future earning capacity. I assess that at $25,000.

PAST DOMESTIC ASSISTANCE

The plaintiff’s Schedule of Damages broke past domestic assistance up into three periods. The first ran from 8 February 2011 to 12 June 2012, a period of 70 weeks. This cannot be supported, as the accident did not happen until November 2011. The second period was from the date of the second operation in June 2012 to September 2012. Three and half hours a day was sought for 12 weeks. That seems reasonable.
The third period was from September 2012 to the date of trial. Eight hours per week was sought.
The first period really runs from November 2011 to June 2012. In that period the plaintiff would have needed domestic assistance to a significant extent during the three months she recovered from her first operation. Thereafter she would have required some assistance between the two operations.
I place more reliance on the evidence of the plaintiff’s younger sister Houda than on the evidence of the plaintiff herself in relation to domestic assistance. I find that Houda did assist the plaintiff for about five hours a day for three months after the first operation. I find that Houda assisted her sister after the second operation, but as she said, not as much as after the first operation. Houda still helps the plaintiff, visiting three times a week and helping for a couple of hours a week. Counsel for the plaintiff conceded that by the time of the trial (and it would seem well before) the assistance provided by Houda had fallen below the statutory threshold.
I accept the submission of counsel for the defendant that there should be no damages assessed for either past or future gratuitous domestic assistance. The threshold to which I have referred is to be found in s 15 of the CL Act. Section 15(3) provides that no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided:

For at least six hours per week, and

For a period of at least six consecutive months.

The evidence of Houda does not support a finding that, even when she was providing a substantial number of hours each day, she did so for a period of at least six consecutive months. It is not appropriate to aggregate any assistance Houda gave to the plaintiff. For those reasons I would assess both past and future gratuitous assistance at nil.
Counsel for the plaintiff submitted that there should be future commercial assistance being a buffer of $10,000. Houda gave evidence that for the future she was willing to continue to assist her sister on an ad hoc basis. I therefore think it unlikely that there will ever be commercial assistance provided to the plaintiff.

OUT-OF-POCKET EXPENSES

Counsel for the plaintiff submitted that for the past there should be a figure of $5,857, which is $15 per week for medication plus $1,000 estimate for repayment to Medicare. There was no evidence about any repayment to Medicare. I allow $4,857 for past out-of-pocket expenses.
Counsel for the plaintiff submitted that for the future, there should be a figure of $17,444. This represents $15 per week for medication less a 15% discount for vicissitudes plus a buffer of $5,000 for treatment including possible surgery.
It seems likely that the plaintiff will continue to take medication. While the plaintiff may have future surgery, there is no medical evidence as to when and where she will have it, and the only evidence about cost is that from Dr Bentivoglio who suggests that it will be done through the public system at no cost. My assessment of damages for future out-of-pocket expenses is therefore $12,444.
In summary, the figures which I would have awarded the plaintiff, if she had succeeded on liability, are as follows:

Non-economic loss

$141,000

Past economic loss

$15,000

Future economic loss

$25,000

Past and future domestic assistance

Nil

Future commercial assistance

Nil

Past out-of-pocket expenses

$5,857

Future out-of-pocket expenses

$12,444

TOTAL

$199,301

CONCLUSION AND ORDERS

I have found that the plaintiff failed on her claim in negligence and failed on her statutory warranty claim. I have also found that the plaintiff failed because of the provisions regarding obvious risk in the CL Act.
My orders are:

Judgment for the defendant.

Order the plaintiff to pay the defendant’s costs.

**********

Decision last updated: 20 February 2018

Medium Neutral Citation:	Samahar Miski v Penrith Whitewater Stadium Ltd [2018] NSWDC 21
Hearing dates:	29 January 2018 – 1 February 2018
Date of orders:	20 February 2018
Decision date:	20 February 2018
Jurisdiction:	Civil
Before:	Judge D. Russell
Decision:	(1) Judgment for the defendant. (2) Order the plaintiff to pay the defendant’s costs.
Catchwords:	TORTS – negligence – whitewater rafting – fall from raft – whether there was a failure to take reasonable precautions TORTS – negligence – obvious risks of dangerous recreational activity – s 5L Civil Liability Act 2002 TORTS – negligence – materialisation of inherent risk – s 5I Civil Liability Act 2002
Legislation Cited:	Australian Competition and Consumer Act (Cth) Civil Liability Act 2002 (NSW)
Cases Cited:	Motorcycling Events Group Pty Limited v Kelly [2013] NSWCA 361 at [150] Wyong Shire Council v Vairy [2004] NSWCA 247 Prast v Town of Cottesloe (2000) 22 WAR 474 Rogers v Whitaker (1992) 175 CLR 479
Category:	Principal judgment
Parties:	Samahar Miski (plaintiff) Penrith Whitewater Stadium Ltd (defendant)
Representation:	Counsel: L. Robison (plaintiff) D. Lloyd (defendant) Solicitors: John Stonham & Co (plaintiff) McCulloch & Buggy (defendant)
File Number(s):	2014/332159

•	Admin Levy	$7,770
•	Fuel and oil	$2,340
•	Snacks for kids	$2,860
•	Kids excursion	$2,692
•	Electricity	$1,850
•	Repairs and maintenance	$950
•	Toys for kids	$2,140
•	Printing	$560
•	Disposable plates	$325
•	Hygienic products	$415
•	Clothes for kids	$385
•	Insurance	$540
•	Telephone	$654
•	Rent $600 per week x 40%	$12,480
•	Internet	$714

For three months after the first operation - $300 x 13 weeks	$3,900
Between the two operations (buffer)	$1,000
After the second operation - $300 x 17 weeks	$5,100
Between return to work after the second operation and trial (buffer)	$5,000
TOTAL	$15,000

Non-economic loss	$141,000
Past economic loss	$15,000
Future economic loss	$25,000
Past and future domestic assistance	Nil
Future commercial assistance	Nil
Past out-of-pocket expenses	$5,857
Future out-of-pocket expenses	$12,444
TOTAL	$199,301