Court of Appeal (WA)|2018-08-21|Before: Murphy JA

APOSTOLIC CHURCH AUSTRALIA LIMITED -v- DIXON [2018] WASCA 146 (21 August 2018)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : APOSTOLIC CHURCH AUSTRALIA LIMITED -v- DIXON [2018] WASCA 146

Citation : DIXON -v- APOSTOLIC CHURCH AUSTRALIA LIMITED [2017] WADC 88

Torts - Negligence - Injury caused in go-karting accident - Whether organiser of go-karting activity breached duty of care by failing to install barrier, giving insufficient warning about 'left foot braking' and not carrying out adequate risk assessment when a proper assessment would have led to event not being held - Whether breaches caused injury - Whether contributory negligence - Turns on own facts

Civil Liability Act 2002 (WA), s 5B, s 5C, s 5D, s 5K

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4(1)

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420

Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109

Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1

Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440

CGU Insurance Ltd v Coote [2018] WASCA 117

Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104

Dixon v Apostolic Church Australia Ltd [2017] WADC 88

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Lynch v Shooters Saloon Bar Pty Ltd [2006] QCA 63

M R & R C Smith Pty Ltd v Wyatt [No 2] [2012] WASCA 110

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486

Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341

Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 492

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 238 ALR 761

Roche Mining v Jeffs [2011] NSWCA 184

Shaw v Thomas [2010] NSWCA 169

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

This is an appeal against Schoombee DCJ's decision in Dixon v Apostolic Church of Australia[1] (primary decision). That decision concerned a claim for damages for personal injury brought by the first respondent (Ms Dixon) in respect of injuries sustained in a go-karting accident at an event organised by the appellant (the Church). Ms Dixon also sued the second respondent (Mr Holman) and the third respondent (Mr Holdaway), although at trial the claim against Mr Holdaway was effectively discontinued.
The primary judge found in favour of Ms Dixon on the question of liability against the Church and Mr Holman.[2] Her Honour found that Ms Dixon was not guilty of contributory negligence.[3]
The Church appeals against the primary decision on the basis that her Honour erred in finding breach of duty and causation, and in finding no contributory negligence. There is no notice of contention by Ms Dixon.
For the reasons that follow:

(1) while we would uphold some aspects of the Church's appeal as to liability, we would not interfere with the finding of liability; and

(2) we would dismiss the Church's appeal in relation to contributory negligence.

The primary judge accepted Ms Dixon's evidence in its entirety.[5] Her Honour accepted most of Mr Holman's evidence, but where it was inconsistent with Ms Dixon's recount, her Honour preferred Ms Dixon's evidence.[6] The primary judge also preferred the evidence of Mr Kahler, who was Ms Dixon's expert, over the evidence of Mr Simms, who was the defendants' expert.[7]

On Saturday, 25 August 2012, Ms Dixon volunteered, taking photographs and video footage, at a conference presented by the Church at the Church's premises in Bunbury.
Mr Topliss, an associate pastor and full-time employee, was responsible for organising the conference for the Church.
Mr Holman was a long-standing member of the Church and he had a background in go-kart racing.[8] He had been involved in racing go-karts from 1991 - 1998 and he assisted at events as a steward and scrutineer of go-karts after 1998.[9]
Mr Holdaway had been involved in racing go-karts for some 18 - 20 years. Mr Holdaway attended the go-karting event at the conference, but he was not involved in organising the event, or in providing instructions to the participants.[10]

The conference was targeted at male members of the Church to learn about spiritual growth, marital relationships and parenting. Some female volunteers also attended.[11]
The conference was scheduled to start at 9.30 am and to go to 3.00 pm. Morning tea was scheduled from 10.45 am to 11.15 am, and lunch was scheduled for 12.45 pm to 1.30 pm. During the 45 minute lunch break, the attendees and volunteers were to be able to participate in go-karting on a circuit set up in the car park of the Church's premises.[12] The go-karting event was planned by Mr Holman, as discussed below.
Mr Holman suggested to the Church that he could obtain two racing go-karts from friends which could be made available to conference attendees to ride around a track established in the car park of the Church.[13]
Mr Topliss asked Mr Holman to do a risk assessment of the proposed go-karting activity.[14] There was no formal or written risk assessment undertaken prior to the go-karting activity. But Mr Holman met with Mr Topliss at least once about a week prior to the event. They went to the car park and discussed barriers, where the track would be set up, and that they had to block the entrance of the car park. Mr Holman pointed out various hazards and how they related to the track's lay-out.[15]
Mr Holman obtained one go-kart from Mr Holdaway and one from Mr Neil Gibbons.[16]
The two go-karts which were used had a left foot brake and a right foot accelerator, and were what is known as 'racing' go-karts. 'Racing' go-karts do not have any on-board safety protection such as seatbelts and rollover protection. Safety protections of that kind are prescribed for 'concessional' go-karts. 'Concessional' go-karts are used at recreational go-karting facilities by participants paying a fee.[17]
The track chosen for the event was a circuit around the car park at the Church's premises. On the morning of the conference, Mr Holman laid out the track in the car park at the Church's premises.[18] The layout of the track was as follows. There was an inner oval marked by an 80 m shipping rope. The straight of the track was around 22.5 m long. Coates Hire traffic barriers were lined up on the southern side of the track, forming a barrier between the track and the church building. They were about 7.5 m from the southern corner of the inner oval. There was no barrier other than a kerb at the northern end of the inner oval. On the eastern side there was a kerb about 12 m from the inner oval. On the western side, the outer edge of the car park was marked by a row of wooden bollards interspersed with trees.[19]
Two witches' hats stood within the inner oval, marking the inner perimeter of the southern corner, and another two stood within the inner oval, marking the inner northern corner. There was no indication of the outer perimeter of the track, save for two witches' hats and one traffic bollard on the north-eastern corner, approximately 11 Coates Hire traffic barriers on the southern side and a Coates Hire traffic barrier near the kerb on the eastern side. The Coates Hire traffic barrier near the eastern curb was positioned around midway down the straight and it indicated the 'pit stop' area. There was nothing outside of the track to stop a go-kart hitting the kerb on the northern or eastern side, or hitting a bollard or tree on the western side, in the event that a driver lost control and veered off the track.[20]
Mr Holman obtained the shipping rope, the witches' hats and traffic bollards and he hired the Coates Hire traffic barriers. He placed each in position inside and around the track.[21]
The Coates Hire traffic barriers on the southern side of the track were essentially to protect spectators, particularly people leaving the Church building and moving into the car park area.[22] Mr Holman acknowledged that the Coates Hire traffic barriers themselves were a risk hazard because a driver could have been injured hitting the barriers.[23] However, he also said that he had only partially filled up the barriers with water, and that this would have lessened the force of the impact, while still operating as a means of decelerating any go-kart which left the track.[24]
Mr Holman considered, but decided against, using tyre barriers around the perimeter of the track. He was familiar with the Australian Karting Association Incorporated track construction manual,[25] and had understood that such a barrier would need to be five or six tyres high, bolted together. That would involve thousands of tyres, and a lot of man hours to assemble. The cost of disposing of the tyres would be around $20 each.[26]
Mr Holman also considered other types of barrier, including wire fencing, sand barricading, and 'traffic delineators'[27] like the ones used at the southern end of the track. He discounted the use of 'traffic delineators' because they can create a ramp from which the go-kart can go into the air.[28]
Mr Holman's view was that he did not consider any additional barriers to be necessary or viable in terms of effort and expense and that the open tarmac spaces on both corners were sufficient to allow for a driver losing control or going into a spin-out.[29] Mr Holman did not consult any Australian Standards or karting manuals.[30]
On the morning of the conference, Mr Holman swept the car park to ensure it was clean and that there were no potholes. He test-drove one of the go-karts. He considered that the circuit should only be driven in a clockwise direction, due to a slight slope on the northern corner dropping off to the west. He shortened and narrowed the corners of the track to reduce the speeds at which the go-karts would be driven. He also reduced the potential speed of the go-karts by placing a sprocket in their wheels, to reduce the rate of acceleration.[31]
In the morning at the conference, Ms Dixon heard an announcement by Mr Topliss to the effect that there would be a go-karting event over lunch, that participants would use the go-karts at their own risk, that if the participants damaged the go-karts they would have to buy them, and that participants had to be careful and follow instructions.[32]
Racing the go-karts was prohibited.[33]
At lunchtime, Ms Dixon stood on the eastern footpath taking photographs and videos of male participants driving the go-karts, with two go-karts being on the track at any given time. She overheard Mr Holman give each participant basic instructions, including that the brake pedal was on the left and the accelerator was on the right.[34]
Ms Dixon had a licence for an automatic car. She had never driven a go-kart before.[35]
When she took her turn on the go-karts during lunchtime, Mr Holman showed her the brake pedal on the left and the accelerator on the right. She drove five or six times around the track, and she felt like she was driving quickly, but was told afterwards she had not gone fast at all and someone could have walked next to her.[36]
Three of the female volunteers also did a number of laps safely around the track. Ms Dixon videoed them on her mobile phone.[37] The instructions given to the women by Mr Holman and Mr Holdaway were to the effect that the drivers needed to go 'quick', 'fairly quickly' and 'fast', 'because the engine doesn't like going slow, not because [they] want[ed] [them] to go fast.'[38] The experts agreed that the speed the women drivers were travelling at on the go-karts was in the order of 24 - 36 km per hour.[39]
After the three women had completed their rounds, Mr Holman offered Ms Dixon another turn. Mr Holman again showed her the brake pedal on the left and the accelerator pedal on the right. He said that she had to go reasonably fast to allow for better steering and to cause less vibration.[40]
Ms Dixon travelled clockwise around the track, but she lost control as she came out of the southern corner near the church building. The go-kart lost traction, and spun around, coming to a stop facing the opposite direction on the track. Mr Holman went over to her and re-started the go-kart.[41]
Ms Dixon then travelled in an anti-clockwise direction around the track. When she came out of the northern corner of the track, the go-kart again lost traction and started to spin, but it did not go into a full spin and instead, it slid. As the go-kart came out of the slide, it pointed to the outer perimeter of the track and straight at a tree on the western side of the track. The go-kart was still moving and Ms Dixon realised she had to stop. She instinctively slammed her right foot down to touch the brake, as she would in a car, but accidentally hit the accelerator instead. The go-kart ran straight into the tree.[42]
Ms Dixon suffered a serious injury to her right leg, with her right foot almost severed and the ends of the tibula and fibula sticking out. She was airlifted by helicopter to Royal Perth Hospital where she remained for weeks and underwent multiple surgeries. Almost two years after the accident, her leg was amputated below the knee.[43]
After the accident, Mr Holman prepared a document described as a 'Risk Hazard Assessment Checklist' for the event. The checklist gave the initial inspection date as 23 June 2012 and the event date as 25 August 2012.[44] The primary judge found that it was an attempt by Mr Holman to portray that he was not responsible for Ms Dixon's accident. In it, he stated the event was highly successful, that no reportable incidents or injuries occurred and that Ms Dixon 'insisted' on having a drive and 'failed to follow the instructions'.[45]
After the accident, Mr Holman also sent an email to the principal pastor of the Church, Mr Dale Hewitt. This email complained about Ms Dixon instituting proceedings. It said she chose to drive, that she chose not to use speed limiting controls, and that she already had an injured leg. It also said that there were crash protections around the track. These statements were untrue and there was no evidence to support them at the trial.[46]
In the 'Risk Hazard Assessment Check list' prepared after the event referred to in [34] above, Mr H[47]man wrote:47

More barriers could be utilised but need to be careful they don't obstruct driver's vision of other karts and marshals etc.

At trial, it was not in dispute that:
1. For the purposes of the operation of s 5B of the Civil Liability Act 2002 (WA) (the CLA), the Church and Mr Holman owed Ms Dixon a duty of care to take all reasonable steps to ensure that the go-karting activity was safe for participating drivers.[48]
2. The Church and Mr Holman were occupiers under the Occupiers' Liability Act 1985 (WA) which required the same standard of care as their duty of care owed to Ms Dixon under s 5B of the CLA.[49]
At trial, Ms Dixon also conceded that Mr Holman was personally excluded from liability to Ms Dixon by virtue of s 6(1) of the Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) (the Volunteers Act), as he was performing community work in good faith as a volunteer for the Church under s 3(1) of the Volunteers Act.[50]
Quantum was not in dispute.[51]

The judge's findings in relation to liability Breach of duty of care

The primary judge referred to s 5B of the CLA,[52] which is in the following terms:

(1) A person is not liable for harm caused by that person's fault 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.

The parties agreed at trial that the relevant risk of harm of the go-karting activity was that an inexperienced participant might lose control, veer off the 'designated' track, collide with a stationary object on the perimeter of the car park and suffer a serious injury (the Agreed Risk).[53]

The primary judge found that the Church and Mr Holman knew that at least some participants, including the four women, were potentially total novices in go-karting.[54]
Her Honour found the Agreed Risk was not far-fetched or fanciful,[55] citing Wyong Shire Council v Shirt.[56]
Her Honour found that even if Mr Topliss and Mr Holman had not foreseen the Agreed Risk, they ought to have done so.[57]

The primary judge also found the Agreed Risk was not insignificant. Her Honour said it could not be said that the possibility of an inexperienced driver losing control and veering off the track was insignificant.[58]

The primary judge referred to the factors in s 5B(2) of the CLA. In this part of her Honour's reasons, her Honour did not, however, identify with any precision what 'precautions against [the] risk of harm'[59] her Honour had in mind for the purpose of this assessment, save to mention that 'at least' a tyre barrier would have involved no great burden.
Her Honour said:
1. The probability of a participant incurring serious injury was relatively low if all participants managed to steer the go-karts safely around the corners, to remain on the 'designated track' and to not be confronted with any unusual situation demanding a high level of skill and control. However, her Honour said that it was foreseeable that a novice driver might lose control and not have the skills to right the situation. Her Honour said '[t]here was a real chance that something could go wrong, whether it be a driver unable to control the kart in a panic situation, a mechanical fault occurring, or another driver or spectator acting negligently and that this could cause a participant to veer off the "designated" track',[60] and that in such an event, the probability of the participant hitting a bollard or tree on the western side was significant.[61]
2. The likely seriousness of harm resulting from the Agreed Risk was high, where the participants were travelling between 24 and 36 km per hour on a go-kart, 30 cm from the ground, unrestrained and with no surrounding protection. Her Honour said that a collision, if it occurred, could do 'an awful lot of damage to people'.[62]
3. The burden of taking adequate precautions, 'by at least implementing a tyre barrier around the perimeter of the track was not excessive'.[63]
4. While go-karting was an interesting and fun activity, the conference could have readily proceeded without the activity and thus the social utility of the go-karting was limited.[64]

The primary judge then said that the Church, as represented by Mr Topliss, and Mr Holman, were negligent in the following respects:
1. They failed to carry out an adequate risk assessment. They failed to 'sit down, discuss the potential risks in detail, preferably with reference to guidelines such as the Australian Standards or kart manuals, and to have documented the risks and suggested precautions to be taken'.[65]
2. They failed to consider the risk that amateur, and particularly novice, drivers might do something out of the ordinary, when faced with an unexpected stressful situation. Her Honour found that '[i]n particular, [they] should have taken into account that inexperienced drivers might accidentally use their right foot to operate the brake, particularly when they had to make a split second decision under pressure as that is what they were subconsciously programmed to do when driving a car'.[66]
3. They did not take any steps to guard against the risk of an inexperienced driver losing control and veering off the 'designated' track as no barriers were installed 'to the outer perimeter of the car park to prevent out of control go-karts from hitting stationary objects such as the bollards and trees, or the kerb on the northern and eastern side'.[67] A tyre barrier 30 m in length along the perimeter of the western (and eastern) sides of the car park would have cost $2,000 in tipping fees, which would have been within the budget for the conference.[68]
4. The instructions given to participants, including Ms Dixon, were inadequate, in that:[69]

(a) they failed to emphasise the risk of accelerating when instinctively applying the right foot to the brake; and

(b) they failed to explain how to negotiate corners safely.

They failed to warn participants of the potential risk of incurring serious injury if the go-kart left the track and collided with a stationary object.[70]
The go-karts used were not suitable for amateur drivers, in that the go-karts had no on-board safety protections which are standard on concessional go-karts.[71]

The primary judge found that if factual causation were proved in the case, it was appropriate that the defendant's liability extend to Ms Dixon's injury.[72]
Her Honour found that Ms Dixon's action of accidentally stepping onto the accelerator was an important part of the real cause of the accident.[73]
The primary judge found the following matters in relation to factual causation:
1. Mr Topliss, on behalf of the Church, and Mr Holman caused Ms Dixon's injury by not conducting a proper risk assessment. Her Honour found that had the Church and Mr Holman conducted a proper risk assessment, they would have realised it was too dangerous to allow participants to operate the go-karts around a track without perimeter protection, and they would have either had barriers installed around the perimeter, or concluded that the event was 'not viable'.[74]
2. Had tyre barriers been installed around the perimeter of the western and eastern sides of the car park, Ms Dixon's injury 'would not have occurred at the level of seriousness which materialised'.[75]
3. Had the Church and Mr Holman emphasised in their instructions that braking involved the use of the left foot, and that accelerating, but not braking, involved the use of the right foot, this would have focused Ms Dixon's mind on it. She would have 'taken it on board and would not have made this inadvertent mistake' of accelerating into the tree rather than braking.[76]
4. Had Mr Topliss and Mr Holman abandoned the go-karting activity because the racing go-karts were not suitable for amateur and novice drivers, as they did not have on-board protection, Ms Dixon would not have suffered her injury.[77]
Her Honour also found, in effect, that:
1. The failure to give instructions on how to negotiate corners was not causative of Ms Dixon's injury.[78]
2. It could not be concluded that, had concessional go-karts been used, the injury would not have occurred.[79]
Her Honour does not appear to have expressly found that the failure to warn of the risk of injury if the go-kart left the track and ran into an immovable object was itself causative of the accident.[80]

The primary judge's findings in relation to contributory negligence are set out at [169] below.

The grounds of appeal are to the following effect.
Ground 1 relates to the breach of duty of care, and alleges that:
1. The primary judge erred in fact by finding a reasonable person in the Church's position would have taken the following precautions:

(a) carrying out of a more adequate risk assessment, when the precautions taken by the Church were sufficient;

(b) placing a barrier which met Australian Standards, being a tyre barrier one-tyre high, around the track, when the go-karting activity was not concessional and thus the Australian Standard did not apply;

(c) considering that novice drivers might accidentally use their right foot to brake when under pressure, and instructing participants to 'be very careful not to use your right foot when you want to brake as you do in your car, because you are then stepping on the accelerator', when clear and explicit or alternatively sufficient instructions were given on the location of the accelerator and brake pedals;

(d) warning Ms Dixon of the risk of serious injury if the go-kart left the track and collided with a stationary object, when general safety warnings were given and the risk of incurring serious injury if the go-kart left the track and hit a stationary object was an obvious risk; and

(e) not allowing the racing go-karts to be used at all, when there was no evidence that racing go-karts were not suitable in the circumstances and this precaution was disproportionate to the risk of harm.

The primary judge erred in law by using Mr Kahler's opinion as the yardstick for the precautions that a reasonable person in the position of the Church would have considered, when Mr Kahler was a mechanical engineer specialising in 'what was an epidemic in the world of personal damage'[81] and was not a reasonable person in the Church's position.[82]
The primary judge should have found that the Church took all the precautions that a reasonable person in its position would have taken in the circumstances of the case.[83]
Ground 2 relates to causation, and alleges that:
1. The primary judge erred in fact and law by finding that Ms Dixon's injuries would have been less serious had the Church conducted a proper risk assessment and installed tyre barriers because there was no or insufficient evidence:

(a) of the means or mechanism by which Ms Dixon's injury occurred in the accident;

(b) that a tyre barrier would have sufficiently reduced the forces involved in the accident so as to reduce injury; and

The primary judge erred in fact and law by finding the Church's failure to point out and emphasise the problem of an accidental mistake in stepping on the accelerator and using the right foot to brake was causative of Ms Dixon's injury, when there was no or insufficient evidence that any deficiency in instructions caused Ms Dixon to make the mistake, and where she failed to prove that the insufficient instructions were a necessary condition of Ms Dixon's injury.[84]
The primary judge should have found that there was no or insufficient evidence that the Church's fault, in not carrying out a proper risk assessment so that outer perimeter barriers would be installed or in failing to recognise the problem of left foot braking, was a necessary condition of Ms Dixon's injury. The Church alleges that the primary judge should have found Ms Dixon failed to discharge the onus of proving the Church's fault was a necessary condition of the occurrence of Ms Dixon's harm.[85]
Ground 3 of the grounds of appeal relates to contributory negligence, and alleges:
1. The primary judge erred in fact and law by finding that a reasonable person in Ms Dixon's position would not have known, and would not be expected to know, that she could lose control going around corners too fast, or that she might inadvertently step on the accelerator when trying to brake and might veer off the track in dealing with the unexpected and collide with an obstacle. The primary judge thereby failed to apply the same principles in determining contributory negligence as those applied in determining whether the Church was liable for Ms Dixon's harm.[86]
2. The primary judge should have found Ms Dixon was contributorily negligent for:

(a) failing to observe and assess the risks of go-karting;

(b) failing to heed the warnings and instructions given to her and which she heard and observed being given to others;

(e) applying the accelerator instead of the brake and causing the go-kart to accelerate and drive off the track into a tree;

(f) failing to stop, slow down or otherwise adequately control the go-kart; and

(g) over-estimating her competency in driving the go-kart.

The Church alleges that the primary judge should have reduced the amount of agreed damages to be paid to Ms Dixon by at least 50% due to Ms Dixon's contributory negligence.[87]

The provisions of s 5B of the CLA have been set out in [40] above. The substance of the following observations, although, in many cases, made with respect to the common law 'Shir[88]calculus',88 have equal application to s 5B of the CLA.
A failure to eliminate a reasonably foreseeable risk does not establish negligence.[89] Ultimately, the requirement is reasonableness, not some more stringent requirement of prevention.[90] Proper enquiry at the breach stage involves identifying, with some precision, what a reasonable person would do by way of response to the foreseeable risk.[91] It is fundamental that the question of whether a defendant breached its duty to exercise reasonable care is to be approached prospectively, not with the benefit of hindsight.[92]
The judge stated the legal principles consistently with this.[93] The judge also correctly identified that the question of breach invites attention to the response of a reasonable person in the position of the defendant.[94] The question is whether these principles were properly applied.
There is, undoubtedly, room for reasonable minds to differ as to whether a given set of facts reveal negligence on the part of the defendant. Nevertheless, this court must decide the question of negligence for itself, without the appellate restraint that applies to discretionary decisions and to some evaluative decisions.[95]

In relation to the potential application of Australian Standards to the relevant inquiry, Pullin JA observed in M R & R C Smith Pty Ltd t/a Ultra Tune (Osborne Park) v Wyatt [No 2]:[96]

Standards Australia or its predecessors have existed since 1922. See the history set out in Benchmark Certification Pty Ltd v Standards Australia International Ltd [2004] FCA 1489; (2004) 212 ALR 464 [16] - [19]. Standards published by Standards Australia have no legal application unless adopted and applied by statute or by contract.

However, even if there is no statutory or contractual application of an Australian Standard, it may still be relevant in evidence if it is accepted as representing a consensus of professional opinion and practical experience about sensible, safe precautions. In that way, an Australian Standard can assist the court in determining whether some aspect in the construction of a building constitutes a danger which must be guarded against by the exercise of reasonable care: see Fitzpatrick v Job [2007] WASCA 63 [94]. Failure to follow a standard does not, without more, establish negligence: O'Connor v Hansen Wilckens Hornibrook Constructions Ltd (1968) 42 ALJR 239, 242; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [110]; Scope Machinery Pty Ltd v Ross [2009] WASCA 100 [43]. It is for the court to adjudicate upon what is the appropriate standard of care: Lanza v Codemo [2001] NSWSC 845 [169]; Francis v Lewis [2003] NSWCA 152 [43]. Even compliance or noncompliance with statutory construction requirements will not be determinative of the issue about whether reasonable care has been taken (Jones v Bartlett [23]).

Section 5C(1), s 5C(2) and s 5D of the CLA provide:

(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -

(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and

(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).

(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -

(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and

(b) whether and why the harm should be left to lie where it fell.

In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Generally, causation is largely a question of fact to be determined by the application of 'common sense' to the facts of the particular case.[97]
In cases governed by the CLA, the two questions identified in s 5C(1) must be kept distinct.[98] The determination of factual causation in accordance with s 5C(1)(a) involves nothing more or less than the application of a 'but for' test of causation.[99] In a novel case not governed by precedent, the scope of liability question dictated by s 5C(1)(b) requires the identification and articulation of an evaluative judgment by reference to the purposes and policy of the relevant part of the law.[100]

(1) The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose -

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

Section 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) provides:

(1) Whenever in any claim for damages founded on an allegation of negligence the court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.

The making of a finding of contributory negligence involves a comparison of both the culpability, that is, of the degree of departure from the standard of care of the reasonable person, and the relevant importance of the acts in causing the damage, of the parties. It is the 'whole conduct' of each party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron and Steel Pty Ltd.[101]
In Astley v Austrust Ltd,[102] Gleeson CJ, McHugh, Gummow and Hayne JJ said:[103]

A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases the nature of that duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.

General observations on the judge's findings

The judge's findings of negligence are set out in [48] above.
The finding that the Church failed to 'sit down' and do a risk assessment and document it, does not in itself establish liability without a further finding that, had the risk assessment happened, the Church and Mr Holman would then have taken positive precautions to protect Ms Dixon against the risk of harm.
The finding that the Church should have 'taken into account' that inexperienced drivers might accidentally use their right foot to operate the brake is also, on its own, insufficient to establish liability in favour of Ms Dixon without a further finding that, had it been taken into account, some positive precautions would have been taken to protect against the risk of injury.
The findings as to the positive precautions that a reasonable person in the Church's position would have taken were, in substance:
1. Installing tyre barriers around the outer perimeter of the car park.[104]
2. Emphasising, in the instructions given to participants, the risk of accelerating when instinctively applying the right foot in an attempt to brake.[105]
3. Alternatively to (1) and (2),[106] not holding the event at all, because:

(a) an appropriate risk assessment would have led to the conclusion that, in the absence of appropriate barrier protection, the activity was too hazardous to proceed;[107] or

(b) going ahead with racing go-karts without safety belts and rollover protection of the kind on concessional go-karts was negligent.[108]

In relation to the second of those matters, concerning go-kart left foot braking, the judge said:[109]

An instruction to the effect of 'be very careful not to use your right foot when you want to brake as you do in your car, because you are then stepping on the accelerator' could easily have been given.

As noted earlier, the Agreed Risk of harm, to which these findings were directed, was that an inexperienced participant might lose control, veer off the 'designated' track, collide with a stationary object on the perimeter of the car park and suffer a serious injury.[110]
Also as noted earlier, the judge considered, in that regard, that there was 'a real chance that something could go wrong'. The possibilities referred to by her Honour were:[111]
1. A driver being unable to control the go-kart in a panic situation.
2. A mechanical fault occurring.
3. Another driver acting negligently and causing a participant to veer off the track.
4. A spectator acting negligently and causing a participant to veer of the track.
The burden of the judge's findings related to the first of these potential problems.[112] There is no suggestion that reasonable care was not taken to ensure that the go-karts were in sound mechanical condition. There were not two go-karts on the track at the time of the accident.[113] It was not found that reasonable care was not taken to prevent spectators from interfering with the go-kart as it was doing its circuit.
Further, the primary judge did not find that the surface of the car park was slippery, or that it contained debris or obstacles, or was otherwise affected by hazards which might cause the driver of the go-kart driving the circuit to veer off the track and collide with a stationary object.
The primary judge's findings were made having regard to the expert evidence, referred to below. The primary judge preferred the evidence of the expert witness called by Ms Dixon, over the evidence of the expert witness called by the Church.[114]
The judge's specific findings of contributory negligence are set out later in these reasons at [169] below.

Each party called a mechanical engineer as an expert witness. Ms Dixon called Mr Kahler. The Church called Mr Simms. The focus of the expert evidence, and in particular that of Mr Kahler,[115] was to investigate and report on this particular accident. Such an approach is apposite for the purposes of examining causation, but provides the wrong starting point for a consideration of breach of duty, which requires a 'forward looking' assessment.[116] While, notwithstanding this, having regard to the content and underlying subject matter of the evidence, it was open to the primary judge to treat the expert evidence as providing, to some extent, assistance on the broader, and correct, question of what a reasonable person in the Church's circumstances would have done in response to the Agreed Risk, as explained below, in important respects, Mr Kahler's expert evidence went beyond what might reasonably be regarded as relevant to a 'forward looking' assessment.

In his report dated 13 June 2014, Mr Kahler said, amongst other things:[117]

In understanding incidents and controlling future damage, it is important to identify the essential factors. When considering the circumstances of this incident, the following factors have been identified as essential to the incident sequence and are effective points of intervention:

There was an absence of crash protection at the track perimeter - the installation of protective devices to prevent or reduce the severity of impact between the kart and the obstructions about the perimeter of the track.

Guidance on such crash protection structures is provided in the following documents:

AS 3533.4.4:2011 - Amusement Rides and Devices Part 4.4: Specific Requirements - Concession Karts as part of the AS 3533 series designed to cover aspects of safety for amusement rides and devices;
ASTM F2007-7a - Standard Practice for Design, Manufacture and Operation of Concession Go-Karts and Facilities;

National Circuit Construction and Safety Standards. (citations omitted) (emphasis added)

Mr Kahler referred to AS 3533.4.4:2011 (the Australian Standard), which he quoted as follows:[118]

3.1.3 Barrier system: A device installed on the concession go kart track, which defines the boundaries of the track area and whose primary purpose is to contain vehicles within the defined area.

...

[6.1] ... The barrier system shall be designed and installed so as to limit its displacement to that which prevents a risk to the driver or others whilst providing sufficient energy absorption to stop a kart at full speed with minimal risk of injury to the driver or patrons.

...

6.1.1 Tyre barrier systems, if used without a track side continuous band, shall consist of common 15 or 16 inch road tyres or 18 to 24 inch racing tyres, or equivalent, in groups no less than 4 tyres long secured together in such a way as to be in one continual length. When tyres are bolted no bolts are to be exposed or able to come in contact with a kart.

6.1.2 When tyres are used as support components for a continuous band barrier system, the tyres should be placed with adequate horizontal separation to help prevent the tyres from raising the band upon being impacted by a go-kart.

...

6.1.9 All obstacles or walls within 5 metres of tracks shall require barriers, which are capable of stopping a go-kart travelling at full speed in a safe manner to minimise the effect of impact. Obstacles more than 5 metres from the track shall include similar barriers unless a documented hazard identification and risk assessment, carried out by a competent person, shows that an equivalent outcome can be achieved without barriers. (emphasis added)

In summary, the design, installation and operation of this temporary demonstration track would not have met the requirements outlined in the AS3533.4.4. There was no safety barriers installed between the track and the trees or timber bollards.

Had there been control measures, such as safety barriers, in place at the time of the incident, the severity of the impact could have been significantly reduced and therefore, the resulting damage sustained by Ms Dixon could have been reduced or avoided all together. (citations omitted).

In a subsequent report, dated 22 May 2017, Mr Kahler provided photographs 'showing the way in which tyres can be tied together to form a ribbon and hence an energy absorbing barrier on a concessional track'.[120] He said 'it would be a tyre barrier in which the tyres are tied together that would be proposed by [Mr Kahler]'.[121] One photograph showed a barrier of tyres painted white and standing 2 tyres high, one tyre on top of the other. The other appeared to show a barrier one tyre high, two deep painted white.[122]
In evidence-in-chief, Mr Kahler was asked what a 'tyre barrier system' is. He said:[123]

[KAHLER, MR]: Tyre is just taking a conventional car tyre, without a rim of course, and you simply - in a professional [k]art circuit you can bolt them together but in a situation like this you just tie them together with synthetic rope so that it's no less than four tyres long that are tied together and basically form a deflectable barrier that a [k]art has to pick up and push. So if you could imagine six or eight of these car tyres tied together, as the car hits them it decelerates the [k]art over much more considerable distances and reduces the decelerations experienced enormously.

... but you must tie them together, you can't leave them singly because the [k]art will just push the tyre out of the way.

...

... they're excellent for [k]arts because [k]arts are low and the tyres meet precisely the impact point at the front of the [k]art and they're obviously very readily obtainable. (emphasis added)

The following exchange later occurred:[124]

SCHOOMBEE DCJ: So could you just explain to me what is likely to happen if a go-kart hits a little wall of four tyres?---If it - your Honour, those tyres have to be joined together to make a band. The tyres sit on the ground, so the weight of the tyres interacts again with the friction on the ground, requiring a certain force to move them. So the go-kart has to accelerated the massive tyres that are tied together and so in accelerating those massive tyres it dissipates its own energy.

Thank you?---So the tyres are accelerated. They will come to a halt and the go-kart will come to a halt as well because it just simply will not have the tractive effort to keep pushing those tyres even if the throttle was kept down.

But - so you're saying it - it might take a distance before both come to a halt, the tyres and the go-kart?---Yes. But your Honour, if it even took 600 millimetres, the difference in the deacceleration's [sic] experienced by the driver of the go-kart are many, many factors less than striking a tree. Basically, the tree is very unforgiving because it doesn't move. (emphasis added)

In cross-examination, the following exchange occurred:[125]

How many tyres do you think Mr - that the defendant would have needed to set up on the day of - that this go karting event took place?---In the whole perimeter of the outside of the track you'd need hundreds.

Hundreds, and you'd need them two high, so you'd need hundreds?---You would need - I think my own view is one height tied together because the reality is that the kart impacts at the height of one high. So it depends how you would prioritise the exposure, the least energy absorbing structures are the tree, next, the least energy absorbing structures are the posts and then the kerbs present a particular risk for at the northern end, for someone driving straight into it but on the eastern end that in my view it would be more for a side impact and ejection of the person.

So you'd need hundreds of tyres and you'd need to prioritise where you put them?---If you wanted to - yes.

And - - -

SCHOOMBEE DCJ: Sorry. Could I just ask, Mr Kahler, are you saying in your view there should have been a line of single tyres right around the track or are you saying that it should have been more than single tyres or are you saying it should have been in certain spots?---Single tyres, your Honour, particularly on the east western boundary and single tyres particularly on the northern end because there is a vertical place in the kerb, the southern end has had other barriers installed which I assume - I - I don't know if they did - they shouldn't have water in them, pin them together and then your next exposure is on the eastern face where the marshal is, but there may be more opportunity for control on that face.

All right? But the western face and the northern face would be the priority.

MANGAN, MS: And this may - I know the accident happened on the straight, but normally if people are going to leave the track or lose control, it's on the bends, isn't it?---It's where the loss of control can be initiated and the trajectory of the kart can take you beyond the corner.

So in this case, the corner seems to be irrelevant because the plaintiff came out of the corner and then after, when she was on the straight, lost control and then pressed the accelerator and went into the tree. Is that - - -?---The corner is relevant in that it sets up the steer angle that he person has chosen, so they're still holding that steer angle as they come out of the corner because the bitumen is wide enough to allow them to do it and go wide. So they're still in a corner. They're just not in the formal corner at the northern end.

But when it comes to prioritising, a person planning this event, we know this accident happened and it can colour our view of what could occur, but before you've seen this accident and you're prioritising, you would put the - most of the barriers you would concentrate on the - on the corners, wouldn't you?---I would do the western face and the northern face because barriers were already installed on the southern face.

Okay. Well, we're going back to scratch. We're planning this event. We're going to use tyres instead of what we did use. We prioritise the kerbs, the corners?---I just (indistinct) the corners are a priority, as well as the western straight. I don't know why you would elevate the corner over the western straight.

...

So you'd have hundreds of tyres you'd need to stack some of them [two] high?---I consider that with the speed of the karts that are involved tied together at one high would have provided the energy absorption capability, separating them in distance from the structure you don't want impacted.

And now, it's a one-off event. At the end of the day you've got hundreds of tyres on your hands?---Correct.

And isn't it the case that that is an enormous problem with disposal?---You have to determine in terms of where you get your tyres whether those people will take them back and you have to consider it in the whole task. Do you get permission from a local authority to take them to a landfill site? These are just the logistics of the planning work. (emphasis added)

Mr Kahler was also asked, in evidence-in-chief, why he had referred to the Australian Standard with respect to concessional go-karts:[126]

Why have you gone to the standard relating to concessional karts rather than some other standard?---Because in the people equipment environment interaction, we have the same, I'll use the word, quality of operator, and so concessional tracks, concessional equipment, has been designed to accommodate what will be presented by the public who will, vary enormously, in their capacity to be able to operate a go-kart. And I just felt that reflected more this situation. That's all.

Mr Martin Simms, called by the Church, was a chartered consulting engineer. His evidence included the following in his report dated 1 May 2017:[127]

[T]he question of the adequacy of track side protection must be considered in the context of what could theoretically have been provided and whether accelerating directly into such a barrier would have resulted in no, or even lesser, injuries.

It can be argued that it might have been theoretically possible to provide some sort of barrier which could safety arrest someone driving straight off the track and into it, but the provision of such a barrier would be difficult and would have had the effect of making the event unviable. It is my view therefore that when assessing the adequacy of track side clearance or protection, the issue is whether someone driving off the track after a spin out without taking evasive action was a foreseeable risk. This is ultimately a matter for the Court to decide.

...

I do not believe it is realistic to put the applicability of AS3533 aside when discussing perimeter crash protection. Either AS3533 applied to the subject event or it did not. In my opinion it did not. It is my opinion that there was no requirement to apply AS3533 to the subject event because it was not an event covered by that Standard.

Both ASTM F2007-7a and AS3533 Part 4.4 clearly state that they only apply to businesses or undertakings where concession karts are offered to the public for a fee. ASTM F200-7a states inter alia that 'This standard does not apply to vehicles or facilities specifically offered for facing (race karts) or used for general purpose by private owners'.

It might be reasonable for anyone setting up an event such as the subject event to use AS3533 for guidance. However, what is or is not adopted in making decisions and planning becomes a matter of judgement. Anyone saying that AS3533 should have been complied with is saying that it should have been complied with in full. If this is not the case there is an acceptance that judgement can be made as to what should reasonably be done. In this context, it is noted that strict compliance with the AS3533 would require a complex and robust crash barrier. It is my view that such an arrangement is unrealistic for a private closed event such as the subject event.

It is my opinion that the perimeter of the car park did not incorporate a barrier which would have satisfied the requirements of AS3533 Part 4.4 however, full compliance with this Standard would have required a barrier which provided sufficient energy absorption to stop a kart at full speed with minimal risk of injury to the driver or patrons. Such a barrier would have been so difficult to provide for a one-off private event that it would have made such an event completely impractical. (emphasis added)

Mr Simms also said in his report of 1 May 2017:[128]

Application of the principles of AS3533 in a reduced or modified form is not an application of AS3533. It is an arbitrary application of a sub-set of requirements based on one person's assessment of risk. Whether that assessment was reasonable in the circumstances is a matter for the Court but the fact remains that AS3533 did not apply to the event. It is my view that the event was not inherently dangerous or poorly run and that to a significant degree the outcome resulted from a decision by [Ms Dixon] to ignore instructions from [Mr Holman], a subsequent loss of control and [Ms Dixon] apparently taking no evasive action for unknown reasons.

No one has proposed a barrier system which would not have had the potential for the same outcome in the same circumstances. If a barrier had been provided and [Ms Dixon] had driven off the track into it in the manner she did there would still have been a risk of injury. (emphasis added)

In his oral evidence-in-chief, Mr Simms said:[129]

First of all, that standard [AS 3533], quite simply, is not applicable in this instance. So that was the first point. What I'm saying is that if - if you tried to enforce that - you either got to enforce that standard - if you opted voluntarily to enforce that standard, you must either enforce the standard exactly as it's written or concoct your own particular version of it. So in other words, it's a - an all or nothing situation. You can't say, 'I'm going to comply with that standard,' but then do something different. Compliance with that standard would have been functionally impossible in this instance, and it didn't apply anyway. So all I'm saying is you can't say, 'Put it aside,' because that implies you're going to take some subset of it and apply that.

So you can't cherry-pick it?---You can't cherry-pick it. That's right. You - it's an all or nothing situation. (emphasis added)

In relation to questions posed by the primary judge, Mr Simms also gave the following evidence:[130]

And so the kind of speeds you're going to achieve and so on will generally be relatively low. And you can say that putting barriers in there is probably a good idea, you just can't assume that had barriers been there that injuries wouldn't have occurred and that they wouldn't have been as severe as they are.

...

What I was conveying was that if the proposition is being put that had there been barriers there would have been no injury, I'm just saying that's not correct. Because there is evidence that even with barriers, there can still be injury. (emphasis added)

Arising out of that exchange, Mr Simms also gave the following evidence in answer to questions posed by counsel for Ms Dixon:[131]

If you hit a tree relative to hitting a barrier that has energy-absorbing capacities, the forces involved that are then applied to the occupant of the go-[k]art - - -?---Yes.

- - - are likely to be higher by hitting the tree, you agree with that?---Yes, yes.

All right. And the risk of injury is in part at least dependent upon the forces involved - - -?---Yes.

Mr Kahler's report of 13 June 2014 included the following:[132]
1. The kart required 'Left foot' braking - This is not the technique normally used in automatic on road vehicles. There was the potential for inexperienced occupants to inadvertently apply the accelerator with their right foot when intending to brake in line with normal car driving practices. AS 3533 recognises the experience of amateur status of drivers and provides recommendations to highlight the issue.

Ms Dixon had not experienced left foot braking before. She had always used right foot braking when driving conventional passenger vehicles with an automatic transmission where in the right foot is used for both acceleration and braking. Left foot braking can be used in the road situation and allows a finer coordination between accelerator and braking and can also reduce reaction time. Conventional teaching, however, is focussed on manual vehicles where the left foot is typically confined to the left hand (clutch) pedal operation; the right foot operates the centre brake and right hand throttle

Like any control system, a particular technique such as left foot braking can be learned however some time can be required, particularly when a pre-established foot pedal mode has to be 'unlearned'.

During the transition period, people can generally operate in the unfamiliar mode when the task is self-paced, however can inadvertently revert to their practised mode under emergency or high stress conditions; the wrong 'motor program' believed to control practised pedal operations and stored in the central nervous system can be implemented.

Thus, if the right foot is commonly used for braking and an emergency arises, the default action when driving the kart can be to press the pedal under the right foot. This is the learned or practised response which takes place at a subconscious level and bypasses the otherwise necessary information gathering and decision making process.

If the accelerator was pressed inadvertently in this instance as the kart headed for the tree, the kart would of course accelerate rather than decelerate. When this emerging collision is perceived by the driver, the initial reaction can be to apply the 'brake' harder; that is, to push firmly with the right foot. If space and time are available, such a mistake may be recognised when the acceleration is eventually associated by the driver with the right foot action.

This type of reaction is consistent with the way Ms Dixon recalled after the incident that in her recollection the pedals on the kart were opposite to that of a standard vehicle. (citations omitted) (emphasis added)

This mechanism has been recognised in the ASTM standard and has not been modified or deleted by the Australian variations of AS 3533.4.4[.] (citations omitted) (emphasis added)

Mr Kahler then quoted the Australian Standard to which he referred:[134]

'5.6 Manufacturer shall clearly mark throttle and brake locations of concession go-karts in a visible position on the body or chassis of the go-kart, or by coloring the throttle green and the brake control red.'

Information as to the left foot must be used for braking could be communicated during instruction, and the driver to practice the skill with the kart stationary. (emphasis added)

The italicised words in [97] - [98] above indicate that Mr Kahler applied his understanding of the thinking behind the ASTM Standard, and how the thinking behind the ASTM Standard was relevant, to a consideration of the cause of Ms Dixon's accident. According to Mr Kahler, the ASTM Standard was designed in a way which drew upon an understanding of the 'motor program'[135] stored in the central nervous system.
Also, Mr Kahler's oral evidence included the following:[136]

Why did you identify the kart required left foot braking as one of the effective points of intervention?---As my understanding of the incident is that - that Ms Dixon applied the accelerator and accelerated towards the tree, and so, I - has been put in to say that, you know, you could try to reinforce that behaviour of left foot braking, but it wouldn't be as an effective control as the others.

...

DROPPERT, MR: The third factor that you identified was that the kart required left foot braking and your discussion of that appears at page 18 of your report?---Yes.

What is it that you say, drawing on your expertise, that is a feature of left foot braking?---Well, I tried to set it out there ... - there is a phenomenon known as unintended acceleration where a person implements a decision and when they implement that decision it's not necessarily the appropriate decision in the context and they hold the decision, they don't change it. And so if your - your programmed learning is that you use the right foot to brake and you implement a decision to use the right foot and you press the accelerator then you cannot necessarily expect people, all people to release that, to reverse that decision. They will hold the decision. So this is - it's well recognised in the motor vehicle arena and I have investigated like incidents myself where the person has made the decision, pressed the throttle thinking they were pressing the brake and the car has accelerated, in their case into a river. But the phenomena is well described of unintended acceleration where basically the decision, once it's implemented, is that the decision is not going to be reversed. (emphasis added)

In this context, in dealing with objections to this evidence, her Honour observed:[137]

SCHOOMBEE DCJ: [T]he current subject matter is whether a[n] inexperienced go-kart driver might confuse the brake and the acceleration and step on the acceleration when they think they're stepping on the brake, and whether they would maintain stepping on the brake rather than correcting their mistake. That's what we're currently discussing.

...

And I've got some faint idea that I can sort of imagine that one might, if the brake is on the left and one is used to using your right foot for the brake, perhaps step on the accelerator, but in terms of that one, steps on the accelerator and keeps on doing that, I have not heard of that before. That is obviously some expert research that - - - I have to rely on if I admit it. (emphasis added)

Mr Simms did not deal in terms in his report with the issue of left foot braking, but said that, in his opinion, the instructions given to Ms Dixon appeared to be adequate.[138]

It is convenient to address breach of duty and then causation with respect to each of the positive precautions which the judge found ought to have been taken by the Church, namely giving better instructions as to left foot braking, installing tyre barriers around the perimeter, and, after a proper risk assessment, deciding not to go ahead at all.
It is useful to recall the judge's finding as to how the go-kart moved towards, and hit, the tree:[139]

[W]hen [Ms Dixon] went round the northern corner in an anti-clockwise direction, the kart again lost traction but did not go into a full spin. When the kart came out of the slide it was not facing directly down the straight but outwards towards the outer perimeter of the car park. The kart was still moving and she realised she had to stop. She instinctively slammed her right foot down to touch the brake as she would in a car, but accidentally hit the accelerator with her right foot. The kart rocketed forward and went straight into the tree. Ms Dixon admitted in cross-examination that she had made a mistake, but said that she had instinctively done so.

Mr Kahler's expert evidence proceeded on the basis that Ms Dixon put her foot on the accelerator and held it down, rather than correcting her mistake before hitting the tree.[140]
The primary judge appeared to accept that Ms Dixon would have travelled 8 to 10 m from the point when the go-kart came out of the spin, to the tree.[141]

As her Honour, in effect, found, the go-kart used by Ms Dixon had the brake pedal to the left side of the vehicle and the accelerator on the right side of the vehicle, and Ms Dixon was shown this on each occasion before she had a ride.
Nevertheless, her Honour found that the instructions given to Ms Dixon were inadequate. The critical finding by her Honour was:[142]

Fourthly, the instructions given to the women participants, including Ms Dixon were inadequate. Mr Holman showed Ms Dixon where the brake was and where the accelerator was, but did not highlight the problem that one could very easily use the right foot to accidentally step on the accelerator as this is what one's mind was programmed to do. An instruction to the effect of 'be very careful not to use your right foot when you want to brake as you do in your car, because you are then stepping on the accelerator' could readily have been given. It could be said that the need for such an instructions is only apparent with hindsight, but in my view this was something that was a very real risk that any experienced go-kart driver should have focused on when considering the potential risks of novice drivers taking part in the go-karting activity. Mr Kahler focused on this and emphasised that this was a matter recognised in the Australian Standard which required the brake to be indicated by a red mark and the accelerator in green. (emphasis added)

Although not expressly mentioned by the primary judge, it was uncontroversial in this appeal, and evident from the photographs and video evidence, that the brake pedal and the accelerator pedal were some distance apart, separated by a column or structure between them, as a result of which it would be physically impossible, or at least wholly impracticable, to use the right foot to touch the brake pedal. The go-kart was unlike an automatic motor vehicle, where the accelerator pedal is on the right and the brake is in the middle, and the right foot can move freely from one pedal to the other, both to accelerate and brake.
Insofar as Australian Standard cl 5.6 referred to by Mr Kahler in [99] above could be taken as evidence of a sensible and practical precaution against, in effect, driver error; the brake and accelerator pedals of the go-karts were visibly evident and were differentiated by their location on different sides of the vehicle, with a structure between them. The reference in Australian Standard cl 5.6 to painting the brake pedal red and the accelerator pedal green is given as an alternative means of identification between the two. In any event, it would have added nothing, in this case, to a reasonable person's understanding of the location and function of both pedals by painting the brake red and the accelerator green. Also, express instructions were given as to using the right foot to accelerate and the left foot to brake, as discussed below.
In substance, the Australian Standard was complied with. Although compliance with such an Australian Standard is not necessarily evidence of an absence of negligence,[143] in the circumstances of this case it provides cogent evidence that reasonable care was exercised in this particular respect.
On the judge's findings:
1. All drivers were given instructions to the effect that the brake was on the left and the accelerator was on the right of the go-kart, and Ms Dixon heard such instructions being given to other participants.[144]
2. When Ms Dixon had her first go at lunchtime, Mr Holman showed her that the brake pedal was on the left and the accelerator pedal was on the right. She then proceeded around the track five or six times without incident.[145]
3. When Ms Dixon was offered another turn later on, Mr Holman again showed Ms Dixon that the brake pedal was on the left and the accelerator pedal was on the right.[146]
Also, it is not in dispute that many people, both attendees and volunteers, were given the same instructions and operated the go-kart without incident.
Further, the primary judge's finding that the instruction should have been to the effect 'be very careful not to use your right foot when you want to brake as you do in your car, because you are then stepping on the accelerator'[147] seems, with respect, to gloss over the fact that, in the ordinary car, the brake is never on the right-hand side. Whilst the driver of an automatic (or even manual) car will be accustomed to using the right foot to operate the brake pedal, that does not involve the right foot being applied to the pedal on the right-hand side of the vehicle. Rather, common experience indicates that the driver of a car is used to applying the right foot when braking to the pedal which is on the left of the two pedals.
Mr Kahler's evidence as to the thinking behind Australian Standard cl 6.5,[148] which it may be accepted was known to Mr Kahler, could not be regarded as something which a reasonable person in the Church's position either knew or ought to have known. There was no evidence that, by virtue of his go-karting experience, Mr Holman knew of the thinking behind the Australian Standard or of the phenomenon of unintended acceleration described by Mr Kahler in his evidence at [97 [149]] above.149
Although her Honour referred to, but denied, the possibility that the need for such an instruction is 'only appropriate with hindsight',[150] it is difficult, with respect, to see that a reasonable person in the position of the Church, looking at the matter prospectively, would have singled out this point as requiring the kind of specific attention stressed by her Honour. Her Honour appears, with respect, to have been influenced by Mr Kahler's specialised understanding of the thinking behind the Australian Standard.[151]
In light of the matters referred to in [109] - [117] above, we are not persuaded that the Church and Mr Holman were negligent in failing to give the particular instruction referred to by her Honour. We would uphold ground 1 to the extent that it alleges that the primary judge's finding to the effect that the instructions about using the left foot to brake and the right foot to accelerate were inadequate in all the circumstances.

Alternatively, if the instructions regarding left foot braking were inadequate, it could not reasonably be inferred that the additional instruction suggested by her Honour would have given Ms Dixon pause before putting her right foot on the accelerator and accelerating into the tree. It was not open, in our view, for her Honour to infer that with the benefit of the additional instruction, the accident would have been avoided. That, with respect, seems to us to be a matter of speculation only, rather than an inference based on the probabilities of what would have occurred had the hypothetical instruction been given.

The judge found, in effect, that the Church was negligent in not installing a tyre barrier, one tyre high and 30 m long, on the perimeter of the track on each of the eastern and western sides.[152] In our view, in finding that the Church was negligent in failing to install a tyre barrier around the perimeter of the carpark, the judge relied primarily on the evidence of Mr Kahler, which evidence was either constructed with the benefit of hindsight or was evidence of an expert opinion that would not have been something which a reasonable person in the Church's position knew or ought to have known. Further, the evidence as a whole did not sustain a conclusion that a reasonable person in the position of the Church would have responded to the risk by installing a barrier made of tyres. Our reasons for these conclusions are set out below.
First, as we said at [83] above, the focus of Mr Kahler's evidence was to identify measures that could or would have avoided the accident. Mr Kahler approached the issues with the benefit of hindsight; his first report, dated 13 June 2014, as set out at [84] above, identified factors that were 'essential to the incident sequence' and which were 'effective [153]nts of intervention'.153
Mr Kahler's report of 13 June 2014 concluded that the track would not have met the requirements outlined in the Australian Standard because there were no safety barriers installed between the track and the trees or timber bollards.[154] The report did not identify the composition or configuration of the barrier or barriers that would have complied with the Australian Standard.
Mr Kahler's subsequent report dated 22 May 2017 provided photographs as illustrations of 'the way in which tyres can be tied together to form a ribbon and hence an energy-absorbing barrier on a track'. One photograph showed a two tyre high barrier.[155] The other showed two tyre barriers, one that was two tyres high and the other one tyre high, but two deep.[156]
Mr Kahler's reports provided the framework for his oral evidence.[157] Mr Kahler's explanation of how a tyre barrier would be configured, set out earlier at [88], was given in response to the question of 'what's a tyre barr[158] system?'158
Secondly, in the course of cross-examination of Mr Kahler, questions inviting an assessment in hindsight were mixed with, or immediately coupled with, questions that involved, or may appear to have involved, a prospective assessment of what barriers would have been appropriate.
For example, during cross-examination, Mr Kahler was asked questions about whether, with safety barriers in place, the damage could have been avoided or reduced.[159] That was plainly to be addressed with hindsight. He was asked about the photographs annexed to his report of 22 May 2017, referred to at [87 [160]] above.160 Mr Kahler agreed that, in some of the photographs, the barriers were two tyres high and in some they were one tyre high. After that, the exchange set out at [90] above occurred, in which questions moved between those addressed prospectively and those addressed with the benefit of hindsight.
Thirdly, the judge's evaluation of the expense of installing a 30 m long tyre barrier on the eastern and western sides of the track[161] appears to indicate an approach informed by hindsight. Such a barrier would have provided some protection against what ultimately occurred, namely the collision with a tree on the western side. However, it would not have provided protection against a collision with the kerb of the northern end of the track, where the bend was. The bend is a location where, both as a matter of expert opinion and as a matter of common sense, there is a heightened risk of a driver losing control. At both the northern and eastern sides of the track there was a kerb, and no trees. Consequently, viewed prospectively, there was a stronger reason to have protection at the northern end of the track than for the middle of the eastern side.
Fourthly, we have set out at [90] the high water mark of Mr Kahler's evidence from the respondent's perspective. In our respectful opinion, this evidence is not to the effect that, or capable of sustaining an inference that, a reasonable person in the position of the Church would have known that a barrier comprised of tyres, one tyre high, would have been an appropriate response to the Agreed Risk. Rather, to our mind, read in its context, in this evidence Mr Kahler draws on his expert knowledge to make an assessment that, in the circumstances, a barrier comprised of tyres only one tyre high would have been sufficient. That was what Mr Kahler described as '[162]own view'162 and what he [163]nsidered'163 to be so, in each case explaining the factors that led to his assessment. The evaluation of the reasonable response to the risk by a reasonable person in the position of the defendant is not to be informed by expert knowledge unless that expert knowledge would or should have been known to a reasonable person in the position of the defendant.
In this light, Mr Kahler's evidence does not seem to us to assist on the question of whether a reasonable person in the position of the Church could reasonably take the view that a barrier comprised of tyres would, in order to perform its function, and in order not to create any further hazard, need to be more than one tyre high.
Fifthly, while it was open to the trial judge to infer that, notwithstanding that it was not directly applicable, the Australian Standard provided some evidence of practical experience about sensible, safe precautions for avoiding or reducing driver injury, her Honour did not go so far as to find that a reasonable person in the position of the Church knew or ought to have known, or should have had regard to, the Australian Standard in determining what precautions should be taken against the risk of driver injury.[164]
The terms of the Australian Standard did not make clear, to a reasonable person in the position of the Church, whether a barrier comprised of tyres should be one tyre high, or more than one tyre high. Moreover, cl 6.1.2, set out at [85 [165]] above,165 refers to the need, when tyres are used as support components for a continuous band barrier, for 'adequate horizontal separation' of the tyres, thus contemplating barriers being comprised of tyres more than one tyre high. The evidence at trial did not explain the notion of a continuous band barrier.
Mr Simms' evidence was that compliance with the Australian Standard would have been impractical, in part because it would have required 'literally hundreds of tyres'.[166] The reference to 'literally hundreds of tyres' would appear to reflect a view that the barrier would be more than one tyre high.
The judge found that Mr Simms' evidence was that a proper tyre barrier which complied with the Australian Standard would be four or five tyres high.[167] The judge did not explain how a reasonable person in the position of the Church should have known that a one tyre high barrier would comply with the Australian Standard, and would be an appropriate and safe measure, in circumstances where an expert held a contrary view.
We do not overlook the fact that the trial judge preferred the evidence of Mr Kahler to the evidence of Mr Simms. However, in our opinion, for present purposes, the question is not one of preferring the evidence of one expert over another. Ms Dixon does not suggest that a reasonable person in the position of the Church should have engaged an expert with knowledge of the kind enjoyed by Mr Kahler and Mr Simms.[168] Nor is it suggested that, insofar as the two experts disagreed, the views expressed by Mr Simms were outside the bounds of legitimate differences in professional judgment. That being so, the knowledge that was available to a reasonable person in the position of the Church is not to be assessed by identifying which of two competing expert opinions is preferable. The fact that competing expert opinions are available is itself significant. It underlines the fact that the opinion of one expert, even the preferable opinion, cannot be substituted for, or equated with, the knowledge that a reasonable person would be taken to have.
Sixthly, apart from expert evidence, the only witness who gave evidence directly relevant to the question of what precautions should or could have been taken was Mr Holman. Mr Holman gave evidence that he considered the possibility of using tyres as a barrier, but he thought that, in order to create a tyre barrier, the tyres would have to be five or six tyres high.[169] Mr Holman's understanding was based on what he had seen at professional tracks where, in his experience, it had always been done with tyres five to six high.[170] The judge referred to this evidence in her outline of the evidence.[171] However, while the judge referred, in adverse terms, to the 'Risk Hazard Assessment Checklist' prepared by Mr Holman after the event,[172] her Honour's analysis of the question of breach did not refer to this aspect of Mr Holman's evidence. Her Honour did not explain how and why Mr Holman's view was an unreasonable view for a reasonable person in the position of the defendant to adopt.
Mr Holman also gave evidence that he understood that a barrier comprised of tyres would need to be bolted together.[173] As explained in [140] below, similar issues arise in that respect.
Seventhly, any additional hazard that might be created by the precaution advocated by the plaintiff is relevant to the evaluation of whether the failure to take that precaution was negligent.[174] It is true that there was no direct evidence that a barrier that is only one tyre high might create any additional hazard. However, cl 6.1.8 of the Australian Standard provided that barriers should be 'constructed such that go-karts cannot climb up the sides of the barrier'. Further, in our respectful opinion, common sense and experience mean that it is open to a reasonable, non-expert person in the position of the Church to consider that a barrier that is only one tyre high might create a risk that, if a go-kart collided with the tyre while out of control, it may lose contact with the ground, thereby creating additional hazards. Mr Holman's evidence about the use of Coates Hire traffic barriers suggests he was alive to that risk.[175] Nothing was asked of Mr Holman in relation to a barrier that was one tyre high.
Eighthly, cl 6.1 of the Australian Standard requires a barrier that would provide 'sufficient energy absorption to stop a go-kart at full speed with minimal risk of injury to the driver or patrons'.[176] Mr Kahler's opinion, accepted by the primary judge,[177] was that a barrier made of tyres, one tyre high, would have constituted an adequate measure to decelerate a go-kart sufficiently to substantially lessen the impact with a stationary object on the perimeter of the carpark. That seems to fall short of providing sufficient energy absorption to stop the go-kart.
Consistently with the terms of the Australian Standard, Mr Simms expressed the opinion that compliance with it would have required a barrier which would provide sufficient energy absorption to stop a go-kart at full speed with minimal risk of injury to others.[178] Mr Simms expressed the view that compliance with the requirements of the Australian Standard would require 'a complex and robust crash barrier'.[179]
Ninthly, the judge implicitly accepted Mr Kahler's opinion that the tyres could appropriately be secured by being tied together. That is implicit in the judge's assessment of the burden of taking precautions by a tyre barrier.[180] In that context, the judge does not refer to the need to obtain, pay for and use bolts in order to secure the tyres. Mr Holman gave evidence that he thought that a tyre barrier would be complex to construct and would have involved bolting the tyres together.[181] In our view, the evidence did not establish that this was an unreasonable view for a reasonable person in the position of the Church to adopt. Clause 6.1.1 of the Australian Standard contemplates that the tyres may be bolted. Mr Simms' evidence was that, usually, the method of securing tyres was by bolting them.[182] Mr Kahler's evidence was that, at a professional circuit, you can bolt them together but 'in a situation like this you just tie them together with synthetic rope'.[183] In our view, neither Mr Kahler's evidence, nor the evidence generally, sustained a conclusion that a reasonable person in the position of the Church would or should know that a tyre barrier could appropriately be secured by rope, as distinct from bolting the tyres together.
Taking these matters into account, in our view, the judge erred in concluding that a reasonable person in the position of the Church would know or ought to have known that an appropriate barrier would be one constructed of tyres, one tyre high and tied together with rope. To the extent that Mr Kahler gave evidence to this effect, it was an opinion expressed with the benefit of hindsight and, more significantly, it did not reflect matters of which a reasonable person in the position of the Church should have been aware. Further, the Australian Standard did not convey, to a reasonable person in the position of the Church, that an appropriate barrier would be one tyre high, rather than multiple tyres high, and did not convey that the tyres would be tied together by rope rather than bolted.
The judge's assessment of the burden of taking appropriate precautions to avoid the Agreed Risk was founded on her Honour's view that a barrier of tyres, one tyre high and tied together, was an appropriate measure. Consequently, her Honour's conclusion that the Church was negligent in not providing a barrier of tyres cannot stand. On the evidence at trial, Ms Dixon did not prove that a reasonable person in the position of the Church would have installed a barrier made of tyres.

Given our conclusion on breach, the question of causation relating to the tyre barrier does not arise. However, for completeness, we will explain why we would not uphold the ground in that respect.
As to causation, the Church contends that:[184]
1. There is no evidence of how [Ms Dixon's] injury, or level of seriousness of injury was sustained, that is the means or mechanism by which the injury occurred, in the accident.
2. There is insufficient evidence to support the [judge's] finding that if [the Church] had provided tyre barriers made of 4 car tyres strung together and 1 tyre high, [Ms Dixon's] injury would not have occurred at the level of seriousness which materialised.
The relevant finding by the judge was to the effect that a tyre barrier would not have prevented Ms Dixon from running into the tree, but that the injury she suffered 'would not have occurred at the level of seriousness which materialised'.[185] Thus, the finding was not to the effect that a tyre barrier would have prevented the accident but, rather, that it would have reduced or minimised Ms Dixon's injuries.[186]
Her Honour reached that conclusion based on her preference for Mr Kahler's evidence over that of Mr Simms. Her Honour said:[187]

Mr Kahler suggested that the outer perimeter barrier could have consisted of used car tyres tied together four at a time and only one tyre high. He explained that such a barrier would not have stopped a go-kart exiting the 'designated' track at high speed, but it would have caused the kart to decelerate considerably. The gokart was likely to have dragged the tyres along and the force required to displace the line of tyres would have substantially decelerated the kart. Mr Kahler explained that even if this had happened for a distance of only 600 mm, the deceleration would have made a big difference should the driver still have hit a stationary object such as a tree. Mr Kahler noted that a tree was very 'unforgiving' and that the impact with a stationary object posed the risk of significant harm for a driver. He said that he was very confident that if a string of tyres had been in place the incident would have resulted in a 'totally different outcome' for Ms Dixon.

...

I do not accept Mr Simms' evidence that no barrier would have been adequate to constitute only a negligible risk of injury to a driver who accelerated straight at it. The issue is not whether a barrier would have prevented the injury, but whether it would have minimised the risk of injury: Indigo Mist Pty Limited v Palmer [2012] NSWCA 239 [96]. I accept Mr Kahler's opinion that a barrier made of tyres, one tyre high, would have constituted an adequate measure to decelerate a kart sufficiently to substantially lessen the impact with a stationary object on the perimeter of the car park. (emphasis added)

It was open to her Honour to prefer the evidence of Mr Kahler over that of Mr Simms. The primary judge was entitled to conclude, on the evidence, that a tyre barrier would have absorbed, to a significant extent, the force of the go-kart as it was being propelled towards the tree. If the distance was 8 m from the point of leaving the spin to the point of hitting the tree (see [107] above), and the tyre barrier had been in place 5 m away from the tree, on Mr Kahler's evidence, the deceleration (over 5 m) would have been much greater than the deceleration which he said would have occurred even over as short a distance as 600 mm (being the diameter of the tyre). It was open to her Honour to infer, as a matter of common sense, that the injuries would have been reduced had much of the force with which the go-kart hit the tree been ameliorated by rubber tyres acting as a barrier.
For completeness, it should be noted that the Church, in its submissions, did not contend that proof of causation failed in the absence of medical evidence to the effect that Ms Dixon's injuries would have been reduced had the tyre barrier been in place.[188] Even if the Church had made that submission, this was a case where causation may be inferred in a common sense way.
That brings us to the third basis on which the judge found that the Church was negligent - in failing to decide, after a proper risk assessment, not to go ahead with the go-karting activity.

Ms Dixon did not plead directly that the decision to proceed with the go-karting activity was negligent. Among other things, she pleaded that the Church and Mr Holman failed to undertake an adequate risk assessment prior to allowing the go-karts to be used. The primary judge found that this breach was established, and that this breach caused Ms Dixon's loss. In more detail, her Honour's findings were as follows:

(1) The risks inherent in the proposed go-karting activity gave rise to a duty to carefully consider the potential risks and the steps to be taken to manage, minimise or eliminate those risks.[189] The Church was negligent in failing to carry out an adequate risk assessment. It failed to consider the potential risks in detail, preferably with reference to guidelines such as the Australian Standards or kart manuals and to consider precautions to be taken.[190] Mr Holman did not adequately think through the risks of putting together the volatile mix of inexperienced drivers, racing go-karts and a track without perimeter protection.[191] Mr Holman failed to give proper consideration to the need for barriers, other than those to protect spectators.[192]

(2) The Church's breach in this respect caused Ms Dixon's injury in that, had a proper risk assessment occurred, the conclusion would have been that, without adequate perimeter protection, it was too hazardous to proceed with the go-karting activity.[193]

There is, at the least, room for the view that, in substance, this reasoning may be equated with a finding that the decision to go ahead with go-karting without adequate perimeter protection was negligent. In effect, that was the basis on which the hearing of the appeal proceeded. During the hearing of the appeal, the court suggested, without demur from counsel, that any consideration of negligence in a failure to conduct a proper risk assessment must encompass the question of the appropriate response(s) to the risk(s) identified in the assessment.[194] A failure to conduct a proper risk assessment is of no moment unless, and to the extent that, the result of a proper risk assessment would have led the defendant to have done something different to what it in fact did. Moreover, in such a case, it is the failure to do that different thing which is the substance of the defendant's negligence.
Proceeding on this basis, there are two questions, reflecting the two steps in the judge's reasoning. The first question is whether the Church failed to conduct a proper risk assessment. The second question is whether a reasonable person in the position of the Church would have responded to the Agreed Risk by not going ahead with the go-karting activity in the absence of perimeter protection.
On appeal, the Church attacked both steps in the judge's reasoning. The Church's written and oral submissions challenged the judge's findings at [133], [147], [148] and [159].[195] The Church accepts that it was required to carry out a reasonable risk assessment.[196] In summary, the Church submits that the judge's findings that the risk assessment was inadequate and that an adequate risk assessment would have led to the go-karting not going ahead were erroneously based on Mr Kahler's expert opinion, and reflected an erroneous assessment of the considerations relevant to breach under s 5B of the CLA.
The judge found, without challenge on appeal, that the Agreed Risk, that an inexperienced driver could lose control, veer off the track, collide with a stationary object and suffer significant injury, was a foreseeable and not insignificant risk.[197]
We are not persuaded that the judge's conclusion on the first step - that the risk assessment conducted by Mr Holman was inadequate - was infected by impermissible reliance on expert evidence of Mr Kahler encompassing matters beyond those of which a reasonable person in the Church's position should have been aware. In any event, judging the matter for ourselves, as is required,[198] while there was no requirement for any risk assessment to be in writing,[199] Mr Holman's risk assessment fell short of being a reasonable risk assessment by a reasonable person in the position of the Church. A reasonable risk assessment would have recognised that unless appropriate perimeter barriers were installed, novice go-kart drivers were exposed to what was, on the judge's unchallenged finding, a not insignificant risk of serious injury. Mr Holman's risk assessment evidently did not recognise this risk or adequately consider what steps should be taken in light of this risk.
We turn to the second question.
The assessment of whether a reasonable person in the position of the defendant would have responded to the Agreed Risk by not conducting the go-karting activity is, as we have said, to be made prospectively, without hindsight, and so without regard for the fact that a relevant risk materialised. It is also made having regard to, among other things, the considerations referred to in s 5B(2) of the CLA.
The question of whether the Church was negligent in proceeding with the go-karting activity must be assessed in light of the conclusions to which we have already come.
First, in evaluating whether the Church was negligent, the judge put significant weight on her finding that a reasonable person in the position of the Church should have known of the risk, referred to by Mr Kahler as the phenomenon of unintended acceleration,[200] that, in an emergency, a person intending to brake might instinctively use their right foot, causing them to hit the go-kart accelerator instead of the brake.[201] For the reasons already given, that was not something of which a reasonable person in the position of the Church would or should have been aware.
Secondly, we have concluded that the Church has not been shown to be negligent in failing to install barriers comprised of tyres. It follows from our reasoning in that respect that a reasonable person in the position of the Church would have evaluated whether to proceed with the go-karting activity in a context where no barriers were to be erected to prevent a collision between a go-kart and the kerb, bollards or trees that were in the vicinity of the proposed track.
The recorded video footage of the go-karting activity on the day enables the court to have a reliable picture of the operation of the go-kart and of the physical environment in which the assessment is to be made.[202] While the breach enquiry is prospective, what can be seen on the video represents what a reasonable person in the position of the defendant would have known as to the physical environment and as to the general operation of the go-karts.
Having regard for what can be observed on the video, the proposed go-karting activity could reasonably have been seen as innocuous. That view tends against a conclusion that a reasonable person in the position of the defendant would have decided not to proceed with the go-karting. However, on balance, in our opinion a reasonable person would have so decided, taking into account the following.
First, while the Agreed Risk was not a large one, the risk existed and, on the judge's unchallenged findings, it was a not insignificant risk.
Secondly, in the unlikely, but realistically possible, event that the Agreed Risk materialised, the driver was likely to suffer significant injury. Thus, it was foreseeable that the materialising of a risk may well cause serious harm to the driver.[203] The appellant's submission that, because the probability that harm would occur was not high, the likely seriousness of harm was not a significant factor,[204] cannot be accepted. The probability of harm and its likely seriousness are each factors under s 5B(2) and must both be considered in the breach enquiry.
Thirdly, to have abandoned the proposed go-karting activity would not have involved any burden on the part of the defendant.[205] To the contrary, it would have saved Mr Holman the time and effort expended on organising the activity, and it cannot be supposed that there were no other activities, in keeping with the object and aims of the conference, that could have been arranged for the lunch break.
Fourthly, as the judge found,[206] the social utility of the go-karting activity,[207] within the setting of a one-off conference, was limited. While the social utility of recreational activity has often been recognised, the utility of the activity that creates the risk must be evaluated in the particular circumstances of the case. The conference was itself a one-off or very occasional event.[208] The proposed go-karting activity was not essential or integral to the conference as a whole. On the contrary, it was planned as light entertainment during breaks in the conference. While it may be accepted that the go-karting would be 'interesting and fun for the participants',[209] the conference could readily have proceeded without it and, if thought appropriate, an alternative activity planned that did not involve risk of serious injury to participants.
As we have said, the second step of the judge's reasoning was part of her Honour's causation analysis, rather than a matter of breach. If the position is analysed in that framework, the result is no different. In this framework, the breach, the 'fault' for the purposes of s 5C of the CLA, was the failure to conduct a reasonable risk assessment. The factual causation question - did the fault cause the harm[210] - directs attention to whether, had a proper risk assessment been done, the decision to dispense with the go-karting activity would have been made. While s 5B of the CLA does not apply to that question, the considerations set out in [163] - [166] also reflect the conclusions that would be reached after conducting a reasonable risk assessment. Consequently, had a reasonable risk assessment been done, that decision would have been made. For these reasons, the fault (the failure to conduct a reasonable risk assessment) was a necessary condition of the harm to Ms Dixon.
For these reasons, which differ somewhat from the reasons of the primary judge, we would not interfere with the judge's finding that the church was negligent in going ahead with the go-karting activity in circumstances where there was no appropriate barrier protection. As counsel acknowledged,[211] no issue of causation arises in relation to that form of negligence. There is no doubt that this breach caused Ms Dixon's loss and damage in that, but for the breach, the go-karting would not have gone ahead.

In relation to contributory negligence, the judge said that:[212]

Ms Dixon was a novice driver and that Mr Holman knew that. Keeping in mind that Ms Dixon only had the past experience of having done a few laps on the go-kart track before her final turn, had been given limited instructions on how to execute a safe turn, had not been specifically warned of the problem of left foot braking and had been encouraged to drive faster, it is difficult to conceive of anything that a reasonable person in her position ought to have known or ought to have done.

It is to be expected that even a reasonable person in the position of Ms Dixon might have made an accidental mistake such as stepping on the accelerator instead of on the brake, particularly where it was necessary in order to brake to use the opposite foot to the one normally used for driving a car.

In Evans v Lindsay [2006] NSWCA 354 [71] Beazley JA (Ipp & Bryson JJA agreeing) said in the context of the standard of care required of a defendant who was the driver of a vehicle:

The possible range of responses has to be assessed, not in the reflective calm of a judge's chambers but in the context of the dynamics that confront the driver that usually calls for quick decision-making in circumstances of quite some stress. It will not always be negligent if a driver, in what is virtually split second decision making makes what, on later reflection, was the wrong decision. However, it may be negligent if a driver was failing to keep a proper lookout so that she/he, in real terms, deprives her/himself of the ability to make decisions, other than the immediate reaction of 'slamming on the brakes'.

This raises the question whether Ms Dixon ought to have taken the corners more slowly, but she and the other women participants were encouraged to go faster and at no stage were the difficulties that one could experience on taking a corner, losing control, regaining control and utilising the wrong foot for the brake explained to her. Mr Kahler made the point that it took experience and training for a driver to be able to counter-steer and realign the kart once it had gone into a yaw.

Mr Holman, on the other hand, must have been well aware of the risk of the women participants losing control on a corner and the problem of left foot braking. (emphasis added)

There is no challenge in the appeal to the findings that the women drivers, including Ms Dixon, were encouraged to go faster, that it took experience and training for a driver to be able to counter-steer and realign the go-kart once it had gone into a 'yaw', and that there were limited or inadequate instructions on how to take a corner. As we have explained, we do not accept that Mr Holman must have been aware of the problem of left foot braking.
The primary thrust of the Church's submissions as to contributory negligence is its challenge to the judge's findings that a reasonable person in the position of Ms Dixon, as a novice driver, would not have known and could not be expected to have known about various matters. The primary judge found as follows:[213]

Ms Dixon was a novice go-kart driver who suffered the accident on the second round of trying out a go-kart in the Church's car park. I do not accept Mr Holman's evidence that Ms Dixon had three turns on the go-kart, but even if she did, this did not make her an experienced driver. A reasonable person in the position of Ms Dixon would not have known, nor ought such a person to have known, of the problem of left foot braking and the risk that novice drivers might inadvertently step on the accelerator when trying to brake. A reasonable person in the position of Ms Dixon would also not have known or be expected to know about the forces created by lateral acceleration, that one could readily lose control on going around a corner and that it might not be that straightforward to regain control. A reasonable person in the position of Ms Dixon would also not have realised the significance of the absence of barriers and how readily one could veer totally off the track in trying to deal with an unexpected stressful situation.

The Church challenged these findings, submitting that all these risks were readily identifiable, and readily apparent to any reasonable person.[214] Further, the Church submits that Ms Dixon had plenty of time to observe and consider these risks in the period prior to her participation in the go-karting activity.[215]
We do not accept these submissions. We agree with the primary judge that, as a novice, a reasonable person in the position of Ms Dixon could not be expected to have known of any of these matters. Knowledge that the brake is located in the separate section requiring use of the left foot is not to be equated with knowing that, in the agony of the moment, the right foot might be applied with the intention of using the brake. As we have explained in dealing with left foot braking in the context of ground 1, Mr Kahler's expert knowledge of this phenomenon is not to be attributed to a reasonable person in the position of the Church. All the more so, such expert knowledge is not to be attributed to a reasonable novice driver. Nor could a reasonable novice driver be expected to be aware of the phenomenon described by Mr Kahler, where the instinctive decision based on programmed learning to use the right foot is reinforced or not immediately reversed.[216]
While neither the Church nor Ms Dixon could reasonably have been expected to be aware of these phenomena, their existence, as found by the primary judge, is relevant to the assessment of whether Ms Dixon was contributorily negligent.
In assessing whether Ms Dixon was contributorily negligent in her manner of driving, it must be borne in mind that the circumstances called for split second decision-making in circumstances of stress.[217] Bearing that in mind, and in light of the recognised tendency for people to apply their right foot when intending to brake in an emergency and then, under stress, to apply it harder or not reverse it, we are not persuaded that Ms Dixon was contributorily negligent.
For these reasons we would dismiss ground 3.

We would allow grounds 1 and 2 to the extent indicated but would dismiss ground 3 and would dismiss the appeal.
We would hear from the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH

On 20 September 2018, the sixth line of [150] was amended to replace 'Mr Holman's' with 'Ms Dixon's'.

[1] Dixon v Apostolic Church Australia Ltd [2017] WADC 88.

[4] The background is taken from the findings of fact made by the primary judge, unless otherwise indicated.

[11] Primary decision [1] - [2], [6].

[21] Primary decision [4], [30], [39].

[22] Primary decision [30], [39]; ts 272 - 273.

[31] Primary decision [32], [38], [42].

[56] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47_._

[59] See the chapeaus of each of s 5B(1) and s 5B(2).

[64] Primary decision [142] - [146].

[68] Primary decision [141] - [142], see also [47.3] above.

[69] Primary decision [152] - [153].

[70] Primary decision [154], [211].

[77] Primary decision [163]. Her Honour did not suggest that concessional go-karts should have been used.

[80] cf primary decision [164] which refers to the absence of proper instructions with regard to the risk of right foot braking; see [48.4(a)] above.

[88] Referring to the formulation of breach of duty of care set out in Wyong Shire Council v Shirt.

[89] Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [3]; Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109 [356].

[90] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [69].

[91] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [192]; Amaca [356].

[92] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [105], [126] - [129]; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93]; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [31]; Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [47]; CGU Insurance Ltd v Coote [2018] WASCA 117 [78].

[94] Primary decision [130], [138].

[95] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 - 552; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [41] - [44].

[96] M R & R C Smith Pty Ltd t/a Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [69] - [70].

[97] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 - 516, 522 - 524, 530 - 532; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 [43].

[98] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [12].

[99] Wallace v Kam [16]; Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440 [36].

[101] Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, 532 - 533.

[102] Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1.

[104] Primary decision [141], [160].

[105] Primary decision [152], [161].

[106] The third of these precautions must be in the alternative to the first two, because the first two are predicated upon the event being held.

[107] Primary decision [147], [159], [164].

[108] Primary decision [155], [163], [164].

[112] That is the overall effect of her Honour's findings. See also, in particular, [193] of the primary decision.

APOSTOLIC CHURCH AUSTRALIA LIMITED -v- DIXON [2018] WASCA 146 (21 August 2018)

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Judgment (230 paragraphs)

APOSTOLIC CHURCH AUSTRALIA LIMITED -v- DIXON [2018] WASCA 146 (21 August 2018)

Legislation Cited (4)

Cases Cited (26)