Stewart v Ackland
[2015] ACTCA 1
•12 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stewart & Ors v Ackland |
Citation: | [2015] ACTCA 1 |
Hearing Date: | 21 August 2014 |
DecisionDate: | 12 February 2015 |
Before: | Penfold J, Walmsley and Robinson AJJ |
Decision: | 1. The appeal is dismissed. 2. The appellants are to pay the respondent’s costs. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL - General principles – Interference with Discretion of Court Below – whether trial judge erred in findings on liability TORTS – NEGLIGENCE – Personal injury – injury from performing backwards aerial somersault on jumping pillow – whether appellants breached duty of care – whether the accident was the materialisation of an “obvious risk” of a “dangerous recreational activity” under s 5L of the Civil Liability Act 2002 (NSW) – whether relevant breach caused the loss– appeal dismissed INTERPRETATION – Admissibility of extrinsic evidence in relation to instruments – admissibility of second reading speech where no ambiguity in legislative provision |
Legislation Cited: | Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, 5L, 5M Interpretation Act 1987 (NSW), ss 33, 34 Civil Liability Act 2003 (Qld), s 13 |
Cases Cited: | Agar v Hyde (2000) 201 CLR 552 Brennan v Comcare (1994) 50 FCR 555 Wyong Shire Council v Vairy [2004] NSWCA 247 |
Texts cited: | Second Reading Speech, Civil Liability Amendment (Personal Responsibility) Bill (NSW Parliamentary Debates (Hansard), Legislative Assembly, 23 October 2002, p 5765) |
Parties: | Patrick Joseph Stewart, Beryl Ann Vickery (Nee Stewart) and Michael Patrick Stewart (Appellants) Benjamin Allan Ackland (Respondent) |
Representation: | Counsel Mr J Sexton SC with Mr D Lloyd (Appellant) Mr P Webb QC with Mr L Grey (Respondent) |
| Solicitors Ken Cush & Associates as agents for Lee & Lyons Lawyers (Appellant) Maurice Blackburn Lawyers (Respondent) | |
File Number: | ACTCA 11 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 21 February 2014 Case Title: Benjamin Ackland v Patrick Joseph Stewart, Beryl Ann Vickery (Nee Stewart) and Michael Patrick Stewart Citation: [2014] ACTSC 18 Court File Number: SC443/10 |
PENFOLD J:
Introduction
I have read in draft the judgment of Walmsley AJ. I gratefully adopt his Honour’s description of the background to this appeal.
Notice of appeal
The amended notice of appeal is set out in Walmsley AJ’s judgment at [84]. The six appeal grounds can be grouped as follows:
(a)grounds (i), (ii), (iii): errors in relation to whether the respondent’s injuries arose from an obvious risk of a dangerous recreational activity;
(b)ground (iv) and (v): errors in relation to the content of any duty of care owed by the appellants;
(c)ground (vi): an error in relation to causation.
Notice of contention
The respondent filed a notice of contention:
(a)contending that the trial judge had incorrectly decided that the respondent had been engaged in a dangerous recreational activity (but without seeking to have the trial Judge’s orders set aside or amended);
(b)contending that the trial Judge’s orders should be confirmed, implicitly on the grounds that:
(i)he was not engaged in a dangerous recreational activity;
(ii)the risk that materialised was not an obvious risk;
(iii)the cause of his injuries was the appellants’ negligence;
(iv)the appellants are estopped from asserting that the performance of backward somersaults on the jumping pillow was a “dangerous recreational activity” or that the risk of injury from such activity was an “obvious risk”; and
(v)on a proper application of s 5D of the Civil Liability Act 2002 (NSW), the injury was caused by the appellants’ negligence and would not have occurred but for the appellants’ encouragement of people to use the jumping pillow and their failures to warn their visitors against, or to prohibit them, using the jumping pillow for somersaults or other inverted manoeuvres.
The legislation
The legislation in question in this case, Divisions 2, 3, 5 and 5 of Part 1 of the Civil Liability Act 2002 (NSW), is relevantly as follows:
Division 2Duty of care
5BGeneral principles
(1)A person is not negligent in failing to take precautions against a 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.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken,
(b)the likely seriousness of the harm,
(c)the burden of taking precautions to avoid the risk of harm,
(d)the social utility of the activity that creates the risk of harm.
5COther principles
In proceedings relating to liability for negligence:
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
Division 3Causation
5DGeneral principles
(1)A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2)In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a)the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b)any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5EOnus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Division 4Assumption of risk
5FMeaning of “obvious risk”
(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 circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
5GInjured persons presumed to be aware of obvious risks
(1)In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2)For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
5HNo proactive duty to warn of obvious risk
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2)This section does not apply if:
(a)the plaintiff has requested advice or information about the risk from the defendant, or
(b)the defendant is required by a written law to warn the plaintiff of the risk, or
(c)the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
(3)Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
5INo 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.
Division 5Recreational activities
5JApplication of Division
(1)This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff.
(2)This Division does not limit the operation of Division 4 in respect of a recreational activity.
5KDefinitions
In this Division:
dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.
obvious risk has the same meaning as it has in Division 4.
recreational activity includes:
(a)any sport (whether or not the sport is an organised activity), and
(b)any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c)any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.
5LNo 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.
5MNo duty of care for recreational activity where risk warning
(1)A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.
(2)If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if:
(a)the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or
(b)the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).
(3)For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.
(4)A risk warning can be given orally or in writing (including by means of a sign or otherwise).
(5)A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).
(6)A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.
(7)A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.
(8)A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.
(9)A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant.
(10)The fact that a risk is the subject of a risk warning does not of itself mean:
(a)that the risk is not an obvious or inherent risk of an activity, or
(b)that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.
(11)This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity.
(12)In this section:
incapable person means a person who, because of the person’s young age or a physical or mental disability, lacks the capacity to understand the risk warning.
parent of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person.
The legislation appears to have been aimed at protecting defendants from liability for the obvious risks of dangerous recreational activities undertaken by plaintiffs. I note, without engaging with the arguments about the availability of such material in interpreting the details of the legislation, that the activities concerned were described as “particularly dangerous sports and other risky activities” by Premier Carr in the Second Reading Speech for the Civil Liability Amendment (Personal Responsibility) Bill (NSW Parliamentary Debates (Hansard), Legislative Assembly, 23 October 2002, p 5765). The legislation does not appear to be aimed at excluding liability for all obvious risks of all recreational activities. A “dangerous recreational activity” means a recreational activity that involves a “significant risk of physical harm” (s 5K), but since not all “obvious risks” would satisfy that test, it is clear that the existence of an obvious risk does not as such make an activity a “dangerous” one. That is, the existence of an obvious risk of recreational activity is not a sufficient condition for the activity to be classed as “dangerous”.
Grounds (i), (ii) and (iii): was the respondent engaged in a dangerous recreational activity?
The first question raised by this appeal, however, is whether an activity can be a dangerous recreational activity if it has no obvious risks; that is, is the existence of an obvious risk a necessary condition for an activity to be classed as dangerous?
Identification of recreational activity
It was not in dispute that the respondent had been engaged in a recreational activity.
The trial judge at [295] and [296] found that the recreational activity engaged in by the respondent involved a significant risk of physical harm, and was therefore a dangerous recreational activity, saying:
There can be no doubt that at the time he was injured the plaintiff was engaged in a recreational activity. I would define that activity as performing a back somersault on a jumping pillow.
It is, I think, inevitable that the recreational activity engaged in by the plaintiff is to be characterised as a dangerous recreational activity.
At the appeal hearing, the parties noted that there was no challenge to his Honour’s definition of the recreational activity in which the respondent had engaged at the time he suffered the injury.
Assessment of “significant risk of physical harm”
The NSW authorities repeatedly refer to the test for a dangerous recreational activity being an “objective and prospective” test. It is not clear to me that the reference to “objective” is intended to do more than distinguish the test from a subjective test of what the plaintiff thought he or she was undertaking.
The reference to a “prospective” test may also be significant in the current context. It would seem to require an assessment of whether, before the injury was caused, an observer would have regarded the recreational activity as dangerous, as distinct from whether, after the injury has occurred, an expert witness can be found to explain a non-obvious basis on which the activity carried a significant risk of physical harm.
Various members of various NSW Courts of Appeal have provided examples of dangerous and non-dangerous recreational activities by reference, in effect, to common knowledge and common sense, all of which, being hypothetical examples, necessarily reflect a “prospective” assessment of an activity and its risk.
For instance, in Fallas v Mourlas (2006) 65 NSWLR 418 (Fallas), Ipp JA first considered the level of generality or abstraction at which an activity should be described:
30In determining whether a recreational activity is dangerous, difficult questions arise in defining the scope of the recreational activity to which the expression “significant risk of physical harm” is to be applied. At what level of generality or abstraction is the scope to be ascertained?
31“Recreational activity” is defined by s 5K in terms of very broad generalities. It comprises any sport, be it an organised activity or not (para (a)), any pursuit or activity engaged in for enjoyment, relaxation or leisure (para (b)) and even any pursuit or activity engaged in at a place where people ordinarily engage in sport or any pursuit or activity engaged in for enjoyment, relaxation or leisure (para (c)).
32The expressions “in the circumstances” and “a reasonable person in the position of [the defendant]” appear in the definition of obvious risk in s 5F. These expressly require regard to be had to the circumstances of the individual case when determining whether a risk is obvious, but are omitted from the definition of recreational activity.
33The breadth of the definition of recreational activity and the omission in it of any reference to the particular circumstances of the case, and to the position of the plaintiff, tend to suggest that the scope of the recreational activity is to be determined at a higher level of generality than the inquiry into whether a risk is obvious.
34That is to say, these matters tend to suggest that, in determining whether a recreational activity involves a significant risk of physical harm, regard is to be had only to the activities ordinarily involved in that particular recreational activity and not to the particular and limited activities undertaken in fact by the plaintiff.
35There are, however, countervailing indications.
36Factors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm (and the converse may be the case). A cliff walk in daytime may be safe but at night it may be dangerous. Walking along the edge of a cliff may be dangerous at any time but walking on a country road not. Waterskiing may not be dangerous for a competent skier but the same may not be said for a novice. A recreational activity may [be] dangerous for a child but not for an adult. Participating in a recreational activity might be safe for a sober person but dangerous for one who is intoxicated. Fencing with appropriate protective equipment might not be dangerous but the same could not be said for fencing without protection. Sailing in calm seas for a short period might be safe, but sailing in a raging gale might be classified as dangerous.
37As the question whether a recreational activity may be dangerous will often depend on the particular circumstances, if such a determination does not take account of those circumstances it is likely to be unreliable, may be unfair and may give rise to injustice.
38The unfairness may be particularly apparent where the recreational activity is generally regarded as having significant risks of physical harm, but the plaintiff, by limiting (perhaps deliberately) his or her participation in the activity, reduces those risks to a point where they are not significant risks of physical harm. In my view it would be unfair or unjust for such a plaintiff to have to face a s 5L defence. The same might be said of a plaintiff who is injured by the materialisation of an obvious risk that was not a significant risk of the activity concerned.
39 The higher level of generality approach may also give rise to unfairness to defendants. A recreational activity may generally not be regarded as having significant risks of physical harm, but the way in which a particular plaintiff engages in that activity may give rise to such risks. It would be unfair in those circumstances to deprive a defendant of the s 5K defence.
Tobias JA in Fallas said:
92It will thus be appreciated that I prefer the approach of Ipp JA that, for the purposes of the definition of “dangerous recreational activity” in s5K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the respondent at the relevant time being the period immediately prior to the respondent suffering the relevant harm as a consequence of the appellant’s negligence. In other words, as his Honour notes (at 426 [43], [46] and [47] supra), in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which that conduct occurs
…
97Although each case will obviously depend upon its own particular facts and circumstances, the principle which in my view the present case establishes is that in determining whether a particular recreational activity falls within the definition in s5K, it is inappropriate to adopt a theoretical or general level of abstraction when characterising the relevant activity. On the contrary, given that the relevance of the definition is to be determined in the context of s5L(1), it is necessary to take into account all the objective circumstances which prevailed prior to the plaintiff suffering the relevant harm.
98The issue as to whether the harm suffered by the respondent was the result of the materialisation of an “obvious risk”, I find more difficult to resolve. It is clear from the definition of “obvious risk” in s5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged was a “dangerous recreational activity” as defined, all of the surrounding circumstances which occurred immediately prior to the respondent’s suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was “obvious”.
99I do not detect any difference in principle between the approach of Ipp JA and Basten JA to the determination of this question insofar as both conclude that, for the purpose of determining whether the risk which materialised was obvious, the nature of the risk should be identified by reference to the particular circumstances prevalent at the time the respondent was shot. As will be apparent, I agree with that approach.
In the same case Basten JA, having discussed the particular issues arising in relation to the scope of the duty of a doctor to inform a patient of the risk associated with an operation, said:
135Whether particular information is relevant or material depends either upon what would be expected of a reasonable person or was actually expected by the plaintiff, where the expectation was or should have been known to the practitioner. By contrast, in the present case, the existence of a “significant risk”, in relation to a recreational activity, will deprive the injured party of a right of action. The reasonable expectations of the plaintiff need not control the limits of the immunity.
136In the present statutory context the phrase “significant risk” is one which requires an objective test, not dependent upon the expectations of a person in a particular relationship with another, whether it be a drunken friend or a medical advisor. In relation to the definition of “obvious risk”, s 5F(3) expressly provides that a risk may be obvious “even though it has a low probability of occurring”. No doubt a low probability may nevertheless involve a significant risk, if it is not so low as to be “insignificant”. As the joint judgment of Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643 stated, in relation to the assessment of damages for future or potential events:
“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9% - or very low – 0.1%. But unless the chance is so low as to be regarded as speculative – say less than 1% - or so high as to be practically certain – say over 99% - the court will take that chance into account in assessing the damages.”
137In a separate judgment, Brennan and Dawson JJ in Malec noted that there are dangers in seeking to express probabilities as a percentage in determining what is speculative, or fanciful, or, on the other hand, certain. The same may be said in relation to determining whether a particular risk is “significant”.
…
139… the views of the plaintiff are not critical in this respect. Section 5L of the Act does not in terms reinstate common law principles relating to the voluntary assumption of risk. Those principles required a careful consideration of the relationship between the plaintiff and the defendant and the extent to which the plaintiff had, by his or her voluntary conduct, assumed a level of risk. The Act, in contrast, creates a defence (by way of immunity from liability) generally with respect to dangerous recreational activities. As s 5L(2) expressly states, the section applies “whether or not the plaintiff was aware of the risk”.
140The fact that the plaintiff accepted that the risk of accidental injury existed, may mean that such a risk, very broadly defined, was “obvious”. It does not follow that any activity using a firearm thereby qualifies as a “dangerous recreational activity”. Some may have a very low risk of persons injuring each other. It may be that clay pigeon shooting falls into that category. What is less clear is whether hunting kangaroo at night falls into a different risk category. Such an activity may colloquially be described as “risky”, especially if it is accompanied by undue consumption of alcohol. However, her Honour did not find that consumption of alcohol was a significant factor in the present events.
141Common assumptions, in such circumstances, may form an inadequate basis for determining that a general law right to damages has been removed. The Court had no material before it to suggest how many shooting accidents occurred during kangaroo hunting at night in Australia in a year, or any other period of time. Assuming that the participants are not significantly affected by drugs or alcohol, it is difficult to infer that this recreational activity involved a significant risk of one participant being shot by another. What would be required for a shooting to occur would be not merely an accidental discharge of a gun, but the simultaneous pointing of the gun in the direction of another individual, whether accidentally or otherwise. Accidental discharges might perhaps be assumed to happen with a sufficient frequency to constitute a significant risk during night hunting: the additional possibility of the gun being pointed towards a member of the hunting party, or sufficiently close to allow an injury by ricochet, may be too remote to be significant.
142The approach to determining “significant risk” was not dealt with in detail at the trial, but one aspect, identified by the trial judge in her summary of the plaintiff’s submissions (set out at 439 [126] supra), was that some activities involved “inherent” risks. Thus, in motorcar racing or contact sports, the risk of injury caused by errors of judgment, which may be inevitable with human participants, may be significant. Other cases, such as use of firearms may fall into a different category. Modern small arms are highly accurate and do not explode, so that the only significant risks may arise from cases of incompetent or careless handling.
143If that assessment be correct, it does not follow that activities involving firearms will not fall within s 5L; rather the risk would need to be assessed according to whether incompetence or carelessness on the part of the particular participants rises above the level of a fanciful suggestion and constitutes a significant risk. Which approach is correct may itself be a fact requiring evidence.
144There are three ways of considering whether the risk of harm is significant. The first is to assume that any risk will be significant, because the results of it eventuating are likely to be catastrophic. The second is to look for statistics which might demonstrate whether accidental shootings on hunting expeditions occur with significant frequency, or whether they are so rare as to constitute an insignificant risk. The third approach is to look at the particular circumstances of the case and inquire whether the participants were competent and experienced users of firearms, whether they were fresh or tired, sober or inebriated and whether they were otherwise known to be careful and responsible people.
In subsequent cases, the NSW Court of Appeal has continued to apply the “objective and prospective” test to the determination of whether a recreational activity is dangerous (see the cases summarised in Streller v Albury City Council (2013) Aust Torts Reports ¶82-146 at [43] to [52]).
Relationship between “significant risks” and “obvious risks”
In Fallas, Ipp JA and Basten JA considered the question whether s 5L only protects the defendant if the obvious risk of a dangerous recreational activity that materialises is the risk, or one of the risks, by reason of which the activity is found to be a dangerous one. Basten JA said at [151]:
151It may well be that a particular recreational activity is attended by a number of significant risks of physical harm. For s 5L to be engaged, at least one of those risks must materialise and result in the harm suffered by the plaintiff. Further, that risk must be an “obvious risk” within the meaning of s 5F of the Act. These two elements must, to an extent, be treated together.
Ipp JA, however, said at [29]:
29Basten JA has expressed the opinion that “[f]or s 5L to be engaged, at least one of those [significant] risks must materialise [as an obvious risk] and result in harm suffered by the plaintiff”. I respectfully disagree. In my view, there is nothing in s 5L that indicates that the obvious risk that materialises must be one of the significant risks that transforms a recreational activity into a dangerous recreational activity. The examples I have given illustrate how the significant risks of a recreational activity may be entirely different from the obvious risk that materialises.
I agree with Ipp JA’s comment that there is nothing in s 5L that excludes the application of s 5L in a case involving the materialisation of an obvious risk of an activity that would not of itself have rendered the activity “dangerous” (as would arise where the activity was a dangerous activity because it carried at least one significant risk of physical harm but the risk that materialised was not that risk or one of those risks).
Ipp JA did not, however, express a view about the application of the legislation where there are no obvious risks but there is a non-obvious “significant risk of physical injury”.
That, however, is the question raised by the trial judge’s finding in this case, namely, can an activity be rendered “dangerous” for the purposes of s 5L solely by a risk that is found to be not obvious.
It is implicit in Basten JA’s remarks at [151] that while some of the risks rendering an activity dangerous may be non-obvious, the defendant will only be protected by s 5L if the risk that does materialise is both an obvious one and one of the risks that renders the activity dangerous (that is, s 5L will only operate if there is at least one obvious risk that is “a significant risk of physical harm”, and the risk that materialised was such a risk).
On the other hand, there is nothing in s 5K or 5L that explicitly excludes the application of s 5K to an activity where none of the obvious risks of the activity render it a dangerous recreational activity. However, there are in my view various policy and interpretative bases from which such an exclusion could be inferred.
A conclusion that an activity may be objectively a dangerous recreational activity despite carrying no obvious risk would imply that an activity may be a dangerous recreational activity despite the fact that none of its obvious risks are “significant risks of physical harm”. The conclusion that an activity might be a dangerous recreational activity only by reason of a non-obvious risk, and that its identification as a dangerous recreational activity might depend on an after-the-fact identification of a non-obvious but significant risk, would seem to have a real potential for unfairness; it would also go beyond anything required by the expressed policy aim of requiring plaintiffs to take personal responsibility for the obvious risks of dangerous recreational activities.
That is, where, on an objective and reasonably common sense approach to the likelihood and consequences of any risks of such an activity, an activity would not be identified as dangerous, but an obvious risk of the activity has materialised and caused injury, a defendant could be tempted to try to produce evidence suggesting a non-obvious and retrospective basis on which the activity should be classed as dangerous.
If the activity is not apparently dangerous, there does not appear to be a policy reason for transferring the responsibility for the consequences of obvious risks of that activity from a negligent defendant to an uninformed or ill-informed plaintiff.
The resolution to this issue may be found in the tests applied in the authorities in identifying whether an activity involves “a substantial risk of physical harm”. It may be that in practice, an activity that carries no “obvious” risks could not convincingly be found, on an objective and prospective assessment, to have involved a substantial risk of physical harm or, conversely, that if a judge can, on such an assessment, identify that the activity did carry a substantial risk of physical harm, then the activity by definition would have had at least one obvious risk.
This, presumably, is the basis on which the appellants submit that if his Honour properly found that the activity was a dangerous recreational activity because of the risk that materialised, his Honour could not logically conclude that the risk on which that finding of danger rested was not an obvious risk.
I am inclined to the view that, for reasons set out above, the appellants are correct in submitting, in effect, that the legislation should not be interpreted as contemplating that an activity might be a dangerous recreational activity despite, on an objective and prospective assessment, carrying no obvious risk. However, in the current case there are two possible outcomes of such a conclusion, only one of them beneficial to the appellants. Either the trial judge was mistaken in concluding that the activity was a dangerous recreational activity or his Honour was mistaken in concluding that the risk that materialised for the respondent was not an obvious risk.
I consider that the former conclusion is correct in this case, and that his Honour has misapplied the test for a dangerous recreational activity, that is, that the activity has “a significant risk of physical harm”.
In Falvo v Australian Oztag Sports Association [2006] NSWCA 17, Ipp JA said at [31]:
31In substance, it seems to me, that the expression [“significant risk of physical harm”] constitutes one concept with the risk and the harm mutually informing each other. On this basis the “risk of physical harm” may be “significant” if the risk is low but the potential harm is catastrophic. The “risk of physical harm” may also be “significant” if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the “risk of physical harm” may not be “significant” if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is “dangerous”.
In taking this approach, Ipp JA refers to the two matters addressed in any routine risk assessment process, namely the likelihood of a particular risk materialising and the seriousness of the consequences of such an event.
Rather than applying any kind of mathematical approach, however, his Honour has posited a risk assessment matrix under which a more than trivial likelihood of more than trivial harm may be significant, and a risk of catastrophic consequences may be significant if the chance of it occurring is low but not if the chance of it occurring is very slight. Whether “low”, “more than trivial” and “very slight” are descriptions that could be fitted into any particular hierarchy of likelihood is not relevant here – the significant feature of his Honour’s approach, in my view, is that both likelihood and consequences must be considered, and a risk of catastrophic consequences of itself is not enough to render an activity a dangerous recreational activity; those consequences must be assessed by reference to likelihood.
This must in my view be the correct position, given how many of our daily activities, recreational and otherwise, carry a small to miniscule risk of catastrophic consequences but are nevertheless viewed as generally safe and entirely sensible activities to engage in (for instance, private car travel and commercial air travel).
In determining whether the recreational activity was dangerous, the trial judge said at [296]:
The evidence of Dr Olsen makes it clear that performing a backward somersault on a jumping pillow exposes a person to a risk of catastrophic physical harm if they fail to execute the manoeuvre perfectly, and land headfirst on the bed of the pillow as the plaintiff did. I accept that the plaintiff was unaware of the biomechanics of such an eventuality as explained by Dr Olsen, but that is not to the point. The matter must be assessed objectively. There was no expert evidence adduced as to the frequency of such injuries occurring on jumping pillows or trampolines, but as a matter of common sense there was always a possibility of the attempted somersault going awry and the plaintiff landing awkwardly. The risk of him landing on his head as he did, so as to occasion the injury, was small but not trivial. Objectively, in the light of the evidence of Dr Olsen, there was always a high potential for catastrophic injury to occur if that small risk eventuated. In these circumstances, the activity engaged in by the plaintiff must be characterised as a dangerous recreational activity for the purposes of s 5L(1).
That is, his Honour noted the need to apply an objective test to the definition of “dangerous recreational activity”, and on that basis applied a test which did not require the plaintiff (or indeed anyone except an expert in biomechanics) to be aware of the dangers concerned.
The trial Judge has also overlooked the requirement expressed in Fallas for the court to take a prospective look at the activity; instead, his Honour has found that the activity was dangerous based on an expert’s report provided after the harm was caused, in circumstances where, in the absence of that report and before the harm was caused, it seems likely that the activity would not have been identified (and apparently was not identified by any of the parties) as fitting the description of a “dangerous recreational activity”.
In concluding that the risk of the accident described by Dr Olsen was “small but not trivial” and that “Objectively, ... there was always a high potential for catastrophic injury to occur if that small risk eventuated”, and in doing so in the absence of any evidence of how likely such an accident was, I consider that the trial judge has fallen into error as a result of his focus on the potentially catastrophic nature of the possible injuries and his failure to consider the risk prospectively.
This conclusion means that I reject the claims made in appeal grounds (i), (ii) and (iii): if his Honour should not have found that the respondent was engaged in a dangerous recreational activity, then the question whether the particular risk that materialised was an obvious risk does not arise at this point. It also means that I would uphold the respondent’s first contention.
Ground (iv): did the appellants owe the respondent a duty of care?
The appellants say that the risk that materialised in this case was an obvious risk (defined in s 5F of the Civil Liability Act) of using the jumping pillow, and therefore, because of s 5H, his Honour should not have found that the appellants had a duty to warn the respondent of that risk.
His Honour considered whether “the risk that a person might suffer a serious neck injury if an inverted manoeuvre was not properly performed” was an obvious risk at [297] to [304], concluding:
301.A reasonable person in the position of the plaintiff would have appreciated, I am satisfied, that the surface of the jumping pillow was somewhat firmer than that of the trampoline, but how much firmer is not clear. Dr Olsen apparently did not conduct any tests to contrast the compressibility of a jumping pillow with that of a trampoline. Other witnesses, such as Thomas McKeon, who could claim significant familiarity with both jumping pillows and trampolines, saw little difference between the two. Certainly such a reasonable person would consider the surface of the jumping pillow to be far closer to the surface of a trampoline, in terms of its ability to flex, than to a grassed surface. I accept that a reasonable person in the position of the plaintiff would take into account in determining whether there was an obvious risk of suffering a serious neck injury by attempting a back somersault on a jumping pillow that it had a more “solid” or supportive feel than a trampoline and that there was a possibility of landing on the head or neck area if the somersault was not performed properly. Such a person, in determining whether there was a risk of a serious neck injury while attempting a back somersault, would also take into account:
a)that young children were performing similar manoeuvres on the pillow, without any apparent attempt by staff at the park to stop them. The risk identified by the defendants would not, in my opinion, be obvious to a young child, even if it were to an adult. The jumping pillow was clearly an attraction to which young children were attracted, and used by them. A reasonable person would be entitled to reason that if there was a danger in performing inverted manoeuvres on the jumping pillow, a warning would be given to young children, and that staff of the Farm would take steps to stop them performing such manoeuvres. In deciding whether a risk such as that suggested by the defendant exists, a reasonable person would be entitled to consider that those who best know the properties of the jumping pillow, its owners, apparently permitted young children to perform somersaults on it;
b)that the surface of the jumping pillow was yielding;
c)that the jumping pillow was full of air;
d)that he had extensive experience in performing back somersaults and other inverted manoeuvres in the past, albeit not for the last 5 years;
e)that although somewhat firmer than the surface of a trampoline to walk on, the jumping pillow performs very much like a trampoline;
f)in determining the significance of the fact that the surface of the jumping pillow was somewhat firmer than that of the trampoline, that he had in 2007 and on the day of the accident used the jumping pillow to perform manoeuvres involving landing on his stomach and back, without any injury or apparent discomfort. These areas of the body are not protected by “shock absorbers” such as the knees, hips and ankles. Landing on the stomach and back will provide a better appreciation of the “give” in the surface than landing on the feet;
g)that the equipment on which you propose performing the manoeuvre is called a “pillow”, suggesting something soft and supportive. I accept that, by itself, this circumstance would not carry great weight; and
h)he had previously landed awkwardly on the jumping pillow after attempting a back somersault and had sustained no injury or discomfort.
302.The plaintiff submitted that I should also take into account the fact that a number of entries posted on the Facebook page for the Farm prior to his accident referred to people performing somersaults on the jumping pillow, and encouraging others to do the same. The plaintiff referred me to Lormine Pty Ltd v Xuereb [2006] NSWCA 200, where Mason P, with whom McColl JA and Hunt JA agreed, accepted at [33] that in determining whether an activity is a dangerous recreational activity for the purposes of the CLA, a court was entitled to take into account what the purported tortfeasor had represented about what “would be involved”.
303.In my opinion, this case does not assist the plaintiff, and I have not taken into account the entries on the Farm’s Facebook page in either determining whether the activity engaged in by the plaintiff was a dangerous recreational activity, or whether what occurred to the plaintiff was an obvious risk of that activity. In Lormine Pty Ltd v Xuerub, the brochure provided by the appellant (the defendant at first instance) had advertised a cruise to view dolphins in “calm ocean waters”. During the course of the cruise, the claimant was invited by the captain of the vessel to ride on the bow. The vessel was hit by a large wave, which injured the claimant. The brochure in that case essentially held out the activity to be engaged in as a safe one. Entries on the Farm’s Facebook page simply represented that the activity could be engaged in, and made no representation about its safety.
304.On balance, I am not persuaded that it would have been obvious to a reasonable person in the position of the plaintiff that there was a risk of serious neck injury in attempting to perform a back somersault on the jumping pillow. A reasonable person would have acknowledged, as the plaintiff did, that there is a risk of some minor harm if they failed to perform the manoeuvre properly. But perception of risk of minor harm is not the equivalent of perception of risk of a serious neck injury.
It is apparent that his Honour’s conclusions depended largely on the facts of this particular case, and his Honour appears to have reached different conclusions of fact from those identified by the appellants. For instance, the appellants refer to the pillow being “like a solid surface, almost” (quoting Dr Olsen in evidence set out by the trial judge at [249]) but his Honour appears to have preferred the evidence of witnesses such as Mr McKeon, who saw little difference between the pillow and a trampoline, and to have accepted, not unreasonably, that the surface of the pillow was closer to the surface of a trampoline than to a grassed surface.
The appellants have not identified where his Honour has gone wrong in relying on the matters set out at [301] of the judgment, or otherwise in his treatment of the factual issues. Oral submissions were made to the effect that everything that was known to the expert was known to a reasonable lay person, but his Honour clearly did not take that view of the facts, and the appellants have not explained:
(a)what other evidence had been overlooked by his Honour;
(b)what other findings his Honour should have made; or
(c)generally, what error his Honour made in finding and assessing the implications of the facts he relied on at [301].
In my view, it would have been available to his Honour to place more reliance on evidence given by the respondent that indicated his uncertainty about the properties of the pillow (for instance, that quoted by the trial judge at [300] of the judgment). The respondent’s appreciation of the fact that the operation of the pillow was not constant but at any given time depended, among other things, on how many other people were on the pillow and what each of them was doing, an appreciation presumably shared by most intelligent users of the pillow, was another basis on which to find that a reasonable person (not being Dr Olsen or anyone else with his particular expertise) would have judged the risks of activity on the pillow less by reference to his or her incomplete understanding of the physics of the pillow’s operation and more by reference to observations of how the pillow was, apparently with the consent of the pillow’s owners, permitted to be used.
I cannot see any error in the process by which his Honour concluded, or in his conclusion, that the risk of serious neck injury was not an obvious risk of the activity engaged in by the respondent (at [304]).
Having reached this conclusion, his Honour was also correct in finding that s 5H did not apply to exclude any duty on the appellants to warn the respondent of the risk of serious neck injury (at [307]).
Ground (v): should the appellants have prohibited the activity concerned?
The appellants challenge his Honour’s finding of negligence on their part as set out at [315] of the judgment, as follows:
315.The defendants were negligent in:
a)Failing to prohibit back flips or somersaults and other inverted manoeuvres on the jumping pillow;
b)Failing to provide any sign or notice in the vicinity of the jumping pillow advising that back flips and other inverted manoeuvres were prohibited;
c)Failing to inform the plaintiff that performing back flips or other inverted manoeuvres was prohibited; and
d)Failing to direct the plaintiff to cease carrying out back flips or somersaults.
The factual findings that underpin these conclusions, set out at [278] of the judgment, were not challenged.
His Honour referred at [315] to the appellant’s failure to prohibit the respondent from engaging in the activity concerned. It is not clear to me that the appellant’s duty of care could only have been satisfied by prohibition, as distinct from warnings, but since there did not appear to be evidence of any useful warnings either, this distinction does not seem to matter. That is, even if the appellants’ duty of care extended only to warning visitors of the risks of the activity and not to prohibiting it, the claim that they breached that duty of care is made out on the evidence.
The appellants argue that they were not negligent in failing to prohibit the relevant activity because any obligation on their part to prohibit could only have related to prohibiting the activity by children, and not to prohibiting the activity by adults of normal competence who could be expected to take “reasonable care for their own safety”.
This may be correct as far as it goes. However, having found that the risk was not an obvious risk, I cannot see how the appellant‘s obligation even to a competent adult would not have extended at least to passing on the warning of risks that had been brought to the attention of the appellants.
The appellants are correct to say in written submissions that:
the failure to eliminate a risk which was foreseeable and preventable does not necessarily amount to negligence [Tame v New South Wales [2002] 211 CLR 317 at [99] per McHugh J]. Doing nothing is always one potentially available response to a foreseeable risk of harm [Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124], [155-156] per Hayne J].
However, these propositions do not provide an answer in every case. In particular, they do not mean that defendants can always avoid liability by doing nothing. Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422 (Vairy) at [124] said:
The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that question must be “nothing”.
If the appellants are submitting that Hayne J meant that a person who does nothing in response to a foreseeable risk of injury can always thereby escape liability, then I reject that submission. All his Honour was saying, in my view, was that in some circumstances “nothing” may be what a reasonable person would have done in response to such a risk.
I do not quibble with the appellants’ submissions that the duty is “to take reasonable care to avoid reasonably foreseeable risks of harm” rather than to prevent harm or eliminate risk, but these propositions miss the point – the breach in this case was not the failure to prevent harm but the failure to take reasonable care to avoid (or enable patrons to avoid) a risk of which the appellants had a far better understanding than the patrons.
The appellants say that his Honour’s approach at [313] of comparing the cost of signs and the risk of catastrophic harm was an erroneous application of the obligation imposed on his Honour by s 5B(2), which says:
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
It is true that in Vairy, Gleeson CJ and Kirby J said at [8] that:
It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning. The question is not answered by comparing the cost of a warning sign with the seriousness of possible harm to an injured person. Often, the answer will be influenced by the obviousness of the danger, the expectation that persons will take reasonable care for their own safety, and consideration of the range of hazards naturally involved in recreational pursuits.
Clearly, a simple comparison of the cost of signs and the risk of catastrophic harm would not be the appropriate basis on which to determine whether a reasonable person would have taken precautions against a risk of harm, but I do not read their Honours’ comments in Vairy as saying that it is impermissible to consider the cost of signs in applying s 5B(2)(c) in the course of making a determination under s 5B(2). The cost of taking precautions may not be determinative, but I cannot see any basis for the proposition that s 5B(2)(c), in requiring consideration of “the burden of taking precautions” nevertheless excludes a consideration of the costs of taking precautions.
Finally in this context, the appellants refer to the “underlying value of the common law which gives primacy to personal autonomy” and the paramountcy of a person’s entitlement “to make his own decisions about his life”. However, to the extent that such personal autonomy “leaves it to the individual to decide whether to engage in conduct that may cause that individual harm”, I do not accept that this entitles a person in the position of the appellants to leave a person in the position of the respondent to make those decisions uninformed about the existence and level of risk to the extent that such is known to the appellants. It is one thing to say that personal autonomy requires competent adults to take responsibility for the obvious risks of an apparently dangerous recreational activity. It is quite another to say that it extends to requiring those adults to take such responsibility for the risks of an activity that may not be apparently dangerous, even where the nature or severity of a non-obvious risk of that activity has been brought to the attention of the person providing the activity.
It is not convincing for the appellants to say in written submissions that they were:
in the same position as any other adult of reasonable intelligence contemplating what might be the result of a poorly executed inverted manoeuvre on the jumping pillow.
As the people offering this facility to their visitors, the appellants had in my view a duty at least to respond to the information they received in that capacity by passing on to their visitors any recommended warnings from the manufacturers, including specifically the warnings they received less than two weeks before the accident. The lack of evidence about why the recommendation was made, whom it was intended to apply to, what legal system the manufacturer was operating in, or who the manufacturer’s OH&S consultants were, is quite beside the point, because the issue is not whether the manufacturer had any kind of legal obligations or whether the OH&S consultants were competent. The point is that the appellants had what might have been important information for their visitors about the dangers of the jumping pillow and they neglected to act on it, either by prohibiting the activity concerned or even by passing on the warnings. The appellants may be correct in noting that a manufacturer’s recommendation cannot be determinative of a breach of duty (although at least some of the authorities quoted in their submissions do not seem to support this proposition), but this does not mean that failing to pass on a manufacturer’s recommendation cannot contribute to a finding, such as was made here, of negligence by the appellants.
The appellants in written submissions claimed that the evidence before the trial judge was:
... that the operators of the centre where Mr Bahnsen performed backflips did not prohibit backflips or somersaults or install warning signs [T258.14-18 [AB 435]] and the operators of the centre where Mr McKeon performed backflips also did not prohibit that activity [T305.10 [AB 482]].
However, a check of the evidence referred to by the appellants shows that it was not as definitive as claimed, being accurately summarised by the trial judge as follows:
177. Mr Bahnsen in cross-examination said no one at the Darlington Holiday Park ever told him not to do back flips. He could not recall there being signs prohibiting somersaults but was not certain.
216.Mr McKeon and his friends would do back flips and front flips on the jumping pillow. The staff at the Dubbo caravan park would only occasionally observe those on the pillow. There was a sign at the pillow, though Mr McKeon could not remember what it said and agreed that if it warned against doing flips he continued to perform those manoeuvres.
These submissions do not help the appellants’ case.
I cannot see any error in his Honour’s conclusions as to the negligence of the appellants. This appeal ground fails.
Ground (vi): did the appellants’ negligence cause the loss?
The trial judge’s finding on causation was brief, being that, having found that the appellants were negligent, he was satisfied “that this negligence caused the injury sustained by [the respondent]” (at [314]. It was conceded at the appeal hearing that causation was not a point taken before the trial judge, which presumably explains his Honour’s brevity.
On appeal, the appellants conceded that the respondent was precluded by s 5D(3)(b) from giving evidence of what he would have done if there had been a sign prohibiting the activity concerned, but assert that the respondent should have attempted to adduce admissible evidence in discharge of the onus of proof imposed on him by s 5E. In making this assertion, counsel referred to the kind of evidence described in State ofQueensland v Kelly [2014] QCA 27 (Kelly) at [14].
Kelly involved a young tourist who had suffered catastrophic injuries through running down a sand dune on Fraser Island intending to jump into the lake at the bottom. The sand dune gave way and he went into the water head first. There were warning signs in the area, but they did not specifically identify the risk that materialised.
Fraser JA listed various parts of the evidence at trial about what the plaintiff had previously known about the lake where the accident happened, the activities he engaged in on arrival at the lake and subsequently, what he observed about the activities of others at the lake, and the absence of any sense of danger on the plaintiff’s part. There was also evidence about the plaintiff’s personality and his previous responses to safety warnings at other locations.
This material was not relied on in any causation argument in the Queensland Court of Appeal. However, some of it at least was relevant to the trial judge’s finding of “factual causation” in respect of a breach of the appellant’s duty constituted by the failure to provide adequate warning of the relevant dangers in a video that was required to be shown to all visitors who went to Fraser Island with licensed tour operators, and was seen by the plaintiff (Kelly v State of Queensland [2013] QSC 106 at [148]–[151]).
In the current case, there was evidence before the trial judge sufficient to found the conclusions required by s 5D(1)(a) and (b), being:
(a)the respondent’s cautious approach to using the jumping pillow in general and to attempting “back flips” in particular, including his observation of, and attempt to learn from, his more proficient companion Tom McKeon (the appellants in fact referred in submissions on appeal to the respondent having “exercised appropriate caution” during his first session on the pillow);
(b)the respondent’s previous experience with a trampoline and his assumption that the pillows operated similarly to a trampoline, as described by his Honour at [32]–[35] and [37]–[38], and indicated in the respondent’s cross-examination quoted at [41] of the judgment; and
(c)the evidence that the respondent was generally aware of some of the risks of the activity as performed on a trampoline, appeared to have thought about the general mechanics of the pillow, and was clearly in no hurry to undertake back flips, attempting them only after an earlier 45-minute session on the pillow, lunch, and participation in several other activities (at [32]–[38], and in cross-examination quoted at [300], of his Honour’s judgment).
While the respondent’s belief that the pillow operated much like a trampoline could have suggested that he would not have been deterred from attempting back flips by any signposted warning or prohibition, or oral direction from staff, the inference that he would have taken such information seriously and acted on it is in my view at least equally available.
The trial judge concluded at [278]:
(a)that the warning signs about somersaults and inverted manoeuvres photographed by a Workcover inspector four days after the respondent’s accident had been placed there after the accident;
(b)that no other warnings or prohibitions were issued by the appellants on the day of the accident; and
(c)that somersaults and inverted manoeuvres were being performed on the pillow by people other than the respondent’s group and that the appellant’s staff were aware of this;
and did so after finding that relevant evidence to the contrary given on behalf of the appellants was unreliable. The respondents submitted that those findings were sufficient to establish “factual causation” for the purposes of s 5D.
I do not accept that what counsel referred to as the appellants’ false claims in relation to these matters directly establish causation, but the making of those claims in evidence led by the appellants does indicate some acceptance that such activities, if they had been undertaken, could have prevented the accident.
If, as the appellants submitted on appeal:
a verbal ‘direction’ would not have been effective to a university student out with friends on a ‘Magical Mystery Tour’ involving some consumption of alcohol
then they had scope for calling evidence, or cross-examining the respondent’s witness to elicit evidence, to undermine the argument for a finding of “factual causation”. However, no such evidence was identified in support of this submission. The respondent correctly noted that the appellants had abandoned any claim that intoxication (of the respondent) played any part in the accident, and that the appellant’s submission is mischievous for that reason; nor is the appellants’ case helped by the gratuitous reference to a “Magical Mystery Tour”, with its drug culture connotations, instead of the term “Mystery Bus Tour” as used in the pleadings, the evidence and by the trial judge in his judgment.
Given the evidence I have already referred to at [71] above which raises the probability that the respondent would have heeded a prohibition of or even a warning about the respondent, the absence of any evidence in support of the proposition that he would not have done so leaves his Honour’s conclusion about causation available on the balance of probabilities.
That is, although his Honour did not articulate these findings (in circumstances noted at [66] above), there is evidence to support, and no evidence to cast doubt on, a conclusion that the appellant’s negligence was a necessary condition of the occurrence of the harm (s 5D(1)(a)) and that in the circumstances it is appropriate for the scope of the appellants’ liability to extend to the harm caused to the respondent. In reaching that last conclusion, I note especially:
(a)that the appellants were offering their facilities to paying customers for recreational activity;
(b)that, given the use of the facilities by children, the activity did not appear to be in any sense a dangerous or extreme activity; and
(c)that the activity involved special purpose equipment owned by the appellants and obtained from commercial providers, such that its customers were entitled to rely on the appellants to provide any safety information that the users needed to know that was not otherwise readily accessible or a matter of common knowledge, and especially any safety information that had been explicitly provided to the appellants by the manufacturer only weeks before the accident.
Despite the trial judge not providing explicit reasons for his conclusion about causation, presumably because of the absence of any apparent dispute about the issue, I am satisfied that the conclusion was correct and available on the evidence. This appeal ground therefore fails.
Other contentions
Given the conclusions I have reached about the appeal grounds, there is no need to consider the respondent’s remaining contentions specifically.
Conclusions
I would accordingly dismiss the appeal, and order the appellants to pay the respondent’s costs.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
WALMSLEY AJ:
Introduction
On 10 October 2009 the respondent, Mr Ackland, broke his neck, causing permanent tetraplegia, when performing a backward somersault, or back flip, on an amusement device called a jumping pillow. The jumping pillow was situated on a farm near the NSW country town of Tingha, where the appellants conducted an amusement park called Green Valley Farm (the farm). At the time of the incident Mr Ackland was a 21 year old arts/law student at the University of New England (UNE). He was at the farm to enjoy a day’s activities arranged for students from UNE’s Austin College.
Mr Ackland sued the appellants for damages for negligence. Liability was contested. After a trial lasting ten days, His Honour the trial judge on 18 March 2014 found for Mr Ackland, entering judgment in his favour for $4,626,241.84 and costs, including costs on an indemnity basis from 7 June 2012. On the main issue before him, liability, His Honour found inter alia the activity engaged in by Mr Ackland when he was injured had been a “dangerous recreational activity” within the meaning of that expression in s 5L(1) of the Civil Liability Act 2002 (NSW) (CLA) but, contrary to the appellants’ argument, the risk which eventuated had not been an “obvious” risk as defined by s 5K of the CLA, so the defence under s 5L CLA had not been made out.
The appellants on this appeal attack His Honour’s findings on liability but not any factual findings. There is no appeal against the quantum of damages awarded.
In their Amended Notice of Appeal the appellants listed as their grounds at paragraph 5:
(i) The Primary Judge erred in failing to find that the injuries suffered by the Respondent were as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the Respondent within the meaning of s. 5L Civil Liability Act, 2002 (NSW) (“CLA”).
(ii) The Primary Judge erred in failing to find that there was an obvious risk, within the meaning of s. 5F CLA, of serious injury in performing a backwards somersault on a jumping pillow.
(iii) The Primary Judge erred in finding that there was an obvious risk within the meaning of s. 5L and 5F CLA of minor injury but not an obvious risk of serious injury in performing a backwards somersault on a jumping pillow.
(iv) The Primary Judge erred in finding that the Appellants owed a duty of care to warn the Respondent of the risk of suffering injury from a backwards somersault on a jumping pillow.
(v) The Primary Judge erred in finding that the Appellants ought to have taken precautions within the meaning of s. 5B(1)(c) CLA by prohibiting the performance of somersaults and other inverted manoeuvres on the jumping pillow.
(vi) The Primary Judge erred in finding that the breach of duty by the Appellants caused loss. (original emphasis)
Mr Ackland filed a notice of contention by which he sought to argue:
(a)His Honour was wrong to have found he had been engaged in a dangerous recreational activity;
(b)The appellants are estopped from asserting that the performance of backward somersaults on the jumping pillow was a dangerous recreational activity; and
(c)On a proper application of s 5D of the CLA , the cause of Mr Ackland’s injury was the appellants’ negligence and but for that negligence the injuries would not have occurred as the result of any risk, obvious or otherwise, attaching to performing backward somersaults on the jumping pillow.
A background to the facts as found at trial
Mr Ackland was born in 1988. He attended schools in the Australian Capital Territory and in NSW. His family had a trampoline in the garden when he was young and he had experience in using it for manoeuvres including inverted ones. At school he was taught some aspects of gymnastics.
He finished his schooling at Forster High School and gained entry to the University of New England to commence in 2007. At university he lived at Austin College on the UNE campus. In 2009 his college social committee arranged a social function for college members. It was described at the time as a “mystery bus tour”. Mr Ackland went on the tour. Shortly after 9 am on 10 October 2009, he and 36 college colleagues took off in a bus. Being university students, and not being permitted to drink alcohol on the bus, they had the bus stop several times on the journey, so they could get out and drink some alcohol. At the trial there was a deal of evidence about alcohol consumption by the students, including by Mr Ackland, on the day, but in the end it was not argued that Mr Ackland’s consumption of alcoholic drinks had any relevance to these tragic events.
The bus arrived at the farm at about 12.15 pm. At the farm there were various forms of amusement, including one called a jumping pillow. Mr Ackland was with a group from the bus which approached the jumping pillow. One of his friends used the jumping pillow to perform back and front flips. Mr Ackland climbed onto it, jumping up and down, landing on his belly, bouncing back up, landing on his back, and bouncing back up. He did that for 45 minutes or so. In that time he did not do back flips. He and others then left the jumping pillow and walked to where there was a large slippery dip which they used several times. Then Mr Ackland walked back to the jumping pillow where he remained for a short time before he and others had lunch.
After lunch, at about 3pm, Mr Ackland and a friend decided to return to the jumping pillow to perform back flips. It was when he was in the course of performing those back flips that he was injured. He described what happened as follows [at AB 215 line 25 to AB 216 line 9]:
(In chief)
And what happened there?---We decided – Tom McKeown had been doing flips earlier in the day and we decided that we were going to go over and do flips on the jumping pillow. I wasn’t doing any at first, I was just jumping and Ben and Tom were doing flips and me and Avery were just kind of jumping around.
When you say “flips”, you mean backflips?---Backflips, yes. And then we started – I decided to have a go and I had one go and sort of landed a bit wrong and then, yes, obviously tried again after that and that’s when I had the accident.
And can you just describe what you did on the first occasion when you said you did a bit wrong?---I just – I rotated and didn’t quite get all the way around and yes, landed awkwardly on my – sort of, if you imagine coming around and not quite flipping my legs all the way through and sort of landed on my side and belly on the pillow.
All right but you had another go?---Yes.
Were you getting any help from anybody, any advice?---Yes, Tom. And Ben was doing it successfully, but mainly Tom. He was quite proficient.
Okay. And what happened the second time?--- I – I don’t really remember. I just remember the pain when – when the accident happened. It all goes blank, yes.
All right. And were you able to feel your body?--- I remember my first thought was, “I can’t move my legs, I can’t move my legs”. Yes. So no, I presume not. I don’t remember any feeling. I just remember not being able to move.
He was asked about his experience in gymnastics. He gave this evidence:
(In chief)
Right. Any gymnastics?---Yes. I - in - that was in Dubbo predominantly in Year 2, I did gymnastics. Balance beam, bars, all that kind of thing, yes.
And later on?---Trampoline at home up until Year 10 when we sold it when I was in Canberra.
So that was in the back garden was it?---Yes.
Tell us about your experience on a trampoline?---Well, I played on it as a kid. As I said, I was a very active boy. Did everything, you know, you watch it on TV and you try it yourself, flips, inverted manoeuvres, landing on your back, tummy, jumping up and down. Yes.
And were you always successful when you did those activities?---Of course not. You fall all the time and, yes, I guess I've never had a problem landing on the trampoline with those activities.
Do you remember ever coming down on your neck or your head when?---Yes.
- - - you were practising - - -?---Yes.
- - - or playing on the trampoline?---Yes. The give is just enough that you - you're just a little kid and you just get up and you're like okay, try again.
Well, by Year 10 how old were you?---I would have been 16 by that point.
And were you still using the trampoline?---Up until when we sold it, yes.
So you weren't a little kid anymore you were a - - -?---A big kid.
(In cross-examination)
MR SEXTON: Mr Ackland, you told us yesterday that when you were in year 2, I think, and living in Dubbo - - -?---Yes.
- - - you were involved in gymnastics?---Yes.
And was that at school, was it?---No, it was an after school program.
All right. And did that involve being taught gymnastics?---Yes.
And you mentioned balance - a balance beam and bars?---Yes.
How old were you in year 2?---I’m not sure. The standard year 2 age, yes. Young.
So the second year of your primary school?---Yes, that’s what I’m referring to.
And did that gymnastics instruction involve any inverted
manoeuvres?---Forwards and backwards rolls, but that would be - - -
Somersaults?---Yes - rolls, not in the air, yes.
And you were taught to do those properly?---Yes.
And then you told us that I think when you moved to Canberra, was it, that you had a trampoline?---Yes.
And that was a rectangular trampoline, was it?---Yes.
What year did you move to Canberra?---I was in year 3, halfway through - beginning or something, yes.
And the trampoline was in the backyard then for about 12 or 13 years, was it?---No. I’m not sure exactly when we acquired it in primary school, so it was between, say, year 4 or 5 and year 10, approximately. I’m very approximate there.
But you used it until you were about 16?---Yes.
And do we take it that you developed the degree of difficulty of the things that you were doing on the trampoline as you got older?---Yes.
And more used to it?---Yes.
And you found performing manoeuvres on the trampoline challenging, did you?---Yes.
You were interested in doing things that were more difficult as you developed?---Yes.
Part of doing it was the challenge of performing a more difficult manoeuvre?---More just progressing. As you do something more, you progress onto more difficult things.
Have you enjoyed the challenge of increasing your ability to do manoeuvres on the trampoline?---I enjoyed increasing my ability on the trampoline.
Did your parents ever say anything to you about what you should or shouldn’t be doing on the trampoline?---Never more than one person on the trampoline at once.
Now you said that from time to time you would come down on your neck or on your head. Do you recall saying that?---Yes. Or land awkwardly, I think - is that what I said? Yes.
Consideration of the appellants’ submissions
Did His Honour correctly identify the risk?
Although it was argued the trial judge had incorrectly identified the relevant risk, I am not persuaded he did. For example at [304] of his judgment he referred to the very activity the respondent was engaged in, namely attempting a backward somersault on the jumping pillow, in the context of a consideration of whether a reasonable person in his position would have perceived a risk of injury. There is, as I have observed, an issue about whether the question to be asked is concerned with the risk of any injury as opposed for example to a serious neck injury, and I shall return to consider that further below.
Was there an inconsistency in finding “dangerous recreational activity” but not “obvious risk”?
I am not persuaded there was any inconsistency in His Honour’s finding that the activity was one which was a dangerous recreational activity, while also finding the risk had not been “obvious”. They are two quite distinct concepts or elements of the s 5L defence. They must be considered separately. There will of course be some overlap. In Fallas v Mourlas (2006) 65 NSWLR 418 at [98] Tobias JA said:
The issue as to whether the harm suffered by the respondent was the result of the materialisation of an “obvious risk”, I find more difficult to resolve. It is clear from the definition of “obvious risk” in s 5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged was a “dangerous recreational activity” as defined, all of the surrounding circumstances which occurred immediately prior to the respondent’s suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was “obvious”.
See also [25]-[29] (per Ipp JA).
Further, it is consistent with logic that despite overlapping considerations a defendant may prove one element of the defence but not another. Section 5L(1) of the CLA itself assumes someone may be injured by a risk of a dangerous recreational activity which is not obvious. Otherwise, it is hard to see why the drafter qualified “risk” with the word “obvious”.
Although the appellants submitted it is relevant that the factual matters to be considered overlap to a large degree for the two elements that does not assist the argument. Both of them must still be considered separately and from the perspective of the reasonable person in the respondent’s position.
Section 5G as a contextual aid
Section 5G of the CLA has application when consideration is given to the statutory form of the volenti non fit injuria defence. It contains an expanded definition of “obvious”. For the purpose of the volenti defence the drafter provided that a risk may be obvious even when the injured person was not aware of the precise extent of the risk.
The applicants conceded that s 5G(2) applies only to s 5G(1) but contended s 5G applied here as a contextual aid and His Honour had erroneously failed to call it in aid. However I do not consider His Honour was obliged to use s 5G(2) as a contextual aid. It is expressly only to apply to s 5G(1), and s 5G(1) is not said to apply here.
Use of extrinsic material
I am not persuaded there is any justification for examining extrinsic materials to aid with interpreting the CLA. There is no ambiguity or obscurity to which attention has been drawn. In those circumstances ss 33 and 34 of the Interpretation Act 1987 have no application or relevance: Brennan v Comcare (1994) 50 FCR 555 at 572-5 per Gummow J. Although, as the appellants noted, the NSW Court of Appeal referred to extrinsic materials in Falvo, it does not follow this Court should. It is possible this was done in Falvo with the consent of the parties or was simply not debated.
The appellants argued that there is an ambiguity here, namely whether for an “obvious risk” to be found it is sufficient for the respondent to have been aware of the possibility of a minor injury or whether, as His Honour the trial judge assumed, knowledge of that possibility only was insufficient. Assuming the correctness of that proposition, and resort is had to the extrinsic material, I do not consider it assists the appellants. For example, in the then Premier’s second reading speech on 23 October 2012 in the context of excluding liability for dangerous recreational activities he said “[N]or will there be any liability for the obvious risks of particularly dangerous sports and other risky activities…” (my emphasis). So the mischief was not dangerous sports but those which were “particularly” dangerous. That description does not seem to me to embrace a device such as a jumping pillow in a fun park, where children are allowed to perform backward somersaults side by side with university students.
What would a reasonable person in the respondent’s position have perceived?
Here His Honour in considering whether the risk was obvious was required to have regard for certain factors in s 5F. As appears from s 5F:
(a)It is necessary for a trial judge to identify the circumstances in which and known to the reasonable person who before the injury was considering his or her position;
(b)It is necessary for a trial judge then to consider the case of a reasonable person armed with knowledge of those circumstances;
(c)The trial judge must examine whether the alleged risk was patent, or a matter of common knowledge;
(d)The trial judge must consider whether the alleged risk would have been one with a low probability of occurring; and
(e)The trial judge must take into account that a risk may be obvious even if it or one or more of the conditions or circumstances giving rise to it would not have been prominent or conspicuous or physically observable.
In Jaber at [35]-[36] Tobias JA said:
35. However, under s 5F(1) of the CL Act, the focus of the enquiry is not upon the putative tortfeasor but upon the person who has been injured or, more accurately, a reasonable person in his position. Whether or not a risk is “obvious” may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff. Thus, in this Court in Vairy (see Wyong Shire Council v Vairy [2004] NSWCA 247) at [161], with the agreement of Mason P, I adopted the following definition of “obvious”, found in the commentary to [343A] of the Restatement (Second) of Torts (1965) (Rest 2d Torts 343A):
“‘Obvious’ means that both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment.”
See also Fallas at 434 [100].
36. I continued (at [162]):
“In this definition ‘condition’ refers to the factual scenario facing the plaintiff. Thus in a diving case the condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury.”
His Honour the trial judge paid regard for the matters the appellants contended should have been taken into account when forming a view as to what a reasonable person in the respondent’s position would have done. Having done so he decided a reasonable person in the respondent’s position:
(a)Would have appreciated the surface was somewhat firmer than that of a trampoline, but not the degree to which it differed (he observed that some witnesses had noticed little difference between the two);
(b)Would have considered the surface to be far closer in terms of its ability to flex to a trampoline than to a grassed surface;
(c)Would have taken into account the surface had a more solid or supportive feel than a trampoline and that there was a possibility of landing on the head or neck area if the somersault were not performed properly;
(d)Would have observed young children were performing similar manoeuvres without any apparent attempt by staff at the park to stop them; the jumping pillow was clearly an attraction to which young children were attracted and used by them;
(e)Would have reasoned that if there was a danger in performing inverted manoeuvres a warning would be given to young children and staff would take steps to stop them;
(f)Would be entitled to reason that those who best knew the properties of the jumping pillow, namely its owners, apparently let young children perform somersaults on it;
(g)Would have noted that the surface was yielding; and
(h)Would have noticed that the jumping pillow was full of air.
Further:
(i)The respondent had had extensive experience in performing back somersaults and other inverted manoeuvres in the past, albeit not for five years;
(j)Although somewhat firmer than a trampoline surface to walk on, the jumping pillow performed very much like a trampoline;
(k)In determining the significance of the fact the surface was somewhat firmer than that of a trampoline the respondent had on the day of the accident and in 2007 used jumping pillows to do manoeuvres involving landing on his back and stomach without receiving any injury or apparent discomfort; knees hips and ankles acted as shock absorbers; landing on the stomach and back provided a better appreciation of the give in the surface than landing on his feet;
(l)The equipment was called a “pillow”, suggesting something soft and supportive; and
(m)The respondent had previously landed awkwardly on the jumping pillow after attempting a back somersault and suffered no injury or discomfort.
I consider it was open to His Honour to form the view he did based on those matters. As to the matters the appellants say he should have taken into account, I do not accept them all. For example I consider it was a relevant matter that the jumping pillow was there for his enjoyment, in particular, to jump on, and was very much under the appellants’ control and I do not accept the proposition that it was obvious that it was potentially catastrophic for a manoeuvre to fail on that surface. Further, there will always be some room for differences between fact finders performing this exercise, both as to the matters identified for what Tobias JA called the factual scenario as relevant for consideration when deciding whether or not the risk was obvious, and in forming a conclusion as to whether from those matters identified the risk was obvious.
Putting aside the argument about whether knowledge some harm was possible was sufficient for the risk to be “obvious”, and merely taking into account the matters His Honour took into account, I do not accept the appellants’ submission that it should have been obvious to a reasonable person in the respondent’s position that he might suffer serious neck injuries from the manoeuvre.
Was knowledge of the risk of some minor harm enough?
As I have observed, the appellants in their amended notice of appeal at paragraph 5(iv) averred that the trial judge had erred in finding there had been an obvious risk of minor injury but not of serious injury. They were critical of the trial judge for construing s 5L as embracing different degrees of risk, differentiating the risk of a minor injury from a major one.
I consider s 5L gives support for the view taken by the trial judge. The defence provided by s 5L is from the materialisation of an obvious risk. It is true the section speaks of “an” rather than “the“ risk, but the clear meaning of the section must be to save a potential tortfeasor harmless from an action arising from a risk which has come home rather than one which has not.
There is support in Queensland for the proposition that what must be proved to have been obvious was that which materialised. The Civil Liability Act 2003 (Qld) has sections relevantly identical to those of the CLA concerning dangerous recreational activities. In State of Queensland v Kelly [2014] QCA 27 a swimmer was severely injured when he was tossed head first into shallow water when a sand dune he was running across collapsed under him. He had intended jumping in to the water and but for the collapse would have done so safely. He knew the danger of diving into the water, but not of running down the sand dunes. The defendant sought to rely on the s 5L equivalent defence. The outcome in favour of the plaintiff depended on how the risk was classified. There however, the classification argument went more, but not entirely, to the mechanics of the injury rather than to its extent. At [30] Fraser JA said:
The trial judge considered that if the risk were defined as “the risk of serious injury from entering the water head first too close into the shore” then the risk was obvious, but if the risk were defined as “the risk of serious injury … because of the possibility of the sand giving way or tripping up at the crucial moment when running down the dune sufficiently to throw the person off balance and so converting an intended feet first jump into an unexpected and awkward head first entry into the water”, or merely as “running down the sand dune into the water”, then the risk was not “obvious” but was instead “a trap for the unwary”. The trial judge observed that “the depth of the water was known; the steepness of the dune evident; the firmness of the sand known – or presumed to be known; the ability to reach deep water easily with a running jump demonstrated … the risk here was not apparent to or would be recognised by a reasonable man in the position of the plaintiff exercising ordinary perception, intelligence and judgment …”.
His Honour then considered the matters the trial judge had taken into account and continued at [48]:
It is not difficult to accept that a reasonable person in the respondent’s position would readily have concluded that running down the sand dunes towards the lake was dangerous in the sense that it involved the risk of some injury, such as a sprain or bruising as a result of a fall consequent upon looseness of the sand. The second warning on the signs should have reinforced such a danger in the mind of a reasonable person. But although the first warning on the signs stated that serious injury or death was “likely to occur” from running into the lake (or jumping or diving into the lake), the cumulative effect of the circumstances to which I have referred militate against a conclusion that this risk was so clear that it would have been “obvious” to a reasonable person in the respondent’s position: the message in the pictograms that the real danger was diving into water of uncertain depth; the fact that the explanation for the risk that the lake was often shallower than it looked was falsified by the ease of ascertaining the true depth of the water; the presence of numerous persons repeatedly running down the sand dune into the lake in apparent safety; the respondent’s own experience in running into the lake without mishap on nine or ten occasions; the absence of any warning of that activity in the video which warned of different dangers on the Island; and the unusually high degree of the risk of very serious injury involved in running down the sand dunes into the lake. These circumstances justified the trial judge in finding that the risk of serious injury which was inherent in the respondent’s activity was not an “obvious risk” within the meaning of s 13 of the Civil Liability Act 2003.
At [62] Henry J said inter alia: “It is obvious that running down a sand dune into a lake involves a risk of some injury. However...[w]hether running down a sand dune or a lake involves an obvious risk of serious injury will very much depend upon the individual circumstances of the case”.
It was not, apparently, argued there that knowledge he might receive a minor injury if he ran down the dunes meant he must be taken to have been aware of an obvious risk of major injury. The opening words of [48] appear to proceed on the assumption such an argument was not tenable. However I concede it is not obvious that the observation by His Honour formed part of the ratio of the case.
I consider the course taken by the trial judge was that contemplated by s 5L and was supported by State of Queensland v Kelly. I am not persuaded there is any reason not to follow that decision.
This ground of appeal does not succeed.
Breach of Duty
Principles on the breach of duty are set out in s 5B of the CLA as follows:
5B General principles
(1)A person is not negligent in failing to take precautions against a 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.
(2)In determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken,
(b)the likely seriousness of the harm,
(c)the burden of taking precautions to avoid the risk of harm,
(d)the social utility of the activity that creates the risk of harm.
The appellants submitted there had been no breach of duty. However in my view it was well open to the trial judge to find a breach.
The appellants submitted that any duty was not to prevent harm or to eliminate all risks but to take reasonable care to avoid foreseeable risks of harm to an entrant taking reasonable care for his own safety and that in any event failing to eliminate a foreseeable and preventable risk is not necessarily negligent: Tame v NSW (2002) 211 CLR 317 at [99] per McHugh J. They submitted that the respondent was trying to take advantage of a duty to a class, namely of child entrants, of which he was not a member: Agar v Hyde at [91]. They argued it was an error for the trial judge to compare the cost of a warning sign (as he did) with the cost of a catastrophic injury: Wyong Shire Council v Vairy [2004 NSWCA 247.
However I do not understand the respondent to have argued there had been a duty to prevent harm or eliminate risks. His submission was that the appellants had owed him a duty as an entrant to the farm to take reasonable care and that they failed to do so.
The appellants accepted that on their own case the risk of harm was foreseeable and not insignificant: s 5B(1)(a) and (b). But they submitted the probability of harm occurring was very low. They also submitted that if we accept the trial judge was correct to find that knowing of a risk of minor injuries was not enough for s 5L to assist them, there is no reason to find a reasonable person in the appellants’ position would have had any greater knowledge of the risk than the respondent.
However, at the very least, in my view, the communication from the manufacturer ought to have alerted them to the potential dangers of using the jumping pillow for back flips. Although that was a recommendation and did not explain why it was made, a reasonable person in the appellants’ position would, I infer, have construed it as a warning in the interests of safety of customers. I consider a reasonable person would have taken the recommended steps. The steps would have consisted of warning users not to do somersaults, and in prohibiting somersaults, using supervision as back up. The appellants took none of these steps. The evidence amply justified His Honour’s findings on breach of duty. The communication from the manufacturer also demonstrates that there was no error in His Honour’s reference to the cost of a warning sign.
In their amended notice of appeal the appellants asserted that the trial judge had found for the respondent on particulars which had not been pleaded. However I do not accept that submission. The pleaded particulars give ample foundation for the findings.
I would dismiss this ground of appeal.
Causation
The appellants submitted there was no reasoning supporting the causation finding, and that the respondent gave no evidence, consistently with s 5D(3)(b) on that issue, but he could have called evidence as to causation. He carried the onus of proof on this issue: s 5E of the CLA. It was implicit in His Honour’s findings that he would have obeyed a prohibition such as in a sign; that is, that a sign prohibiting somersaults would probably have been effective. However, the trial judge found he did not appreciate a risk of more than minor harm, so the probabilities are a sign or oral direction prohibiting somersaults would not have been effective, especially as he was a university student out with friends and had consumed alcohol.
Although the respondent did carry the onus and did not, apparently, make any significant submissions on it at trial, it is clear from the way the trial was run that the s 5L point was what mainly occupied counsel for all parties.
In any event s 5D(3)(b) of the CLA prevented Mr Ackland from saying what he would have done if confronted by a sign or oral direction prohibiting him from performing somersaults on the jumping pillow. The appellants falsely asserted to the trial judge and to a Workcover inspector that there had been signs present prohibiting these manoeuvres. It was a significant part of the respondent’s case at trial that the appellants had been negligent in not prohibiting him from performing these manoeuvres. In my view there was powerful evidence to justify the trial judge’s inference that if the signs recommended by the manufacturer of the jumping pillow had been present and if supervision of the prohibition had occurred, the accident would not have occurred. The appellants’ submissions on this issue ought not be upheld.
Conclusion
The appeal should be dismissed with costs.
| I certify that the preceding eighty-eight [88] paragraphs numbered [81] – [168] are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date: |
ROBINSON AJ:
I agree with the judgment of Walmsley AJ.
| I certify that the preceding paragraph numbered [169] is a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: |
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