Common law negligence
22 The other grounds of appeal allege that the Master had not made necessary findings of fact and had not given proper reasons for her decision. The appellant's claims in negligence that are still pressed are that the presence of substantial trees close to the track, particularly near the first hairpin bend, was a hazard in the absence of substantial barriers or safety devices for the protection of riders who might be thrown from their motorcycles.
23 The Master said [para 6] that in order to ascertain whether the plaintiff had established his case "it is necessary to determine with precision the particular tree the plaintiff collided with, if he did in fact collide with a tree". She found that there is "a fair degree of potential danger involved in motor-cross racing" and that a rider is commonly thrown off his bike [para 12]. However the plaintiff, although only 16, was an experienced motor-cross rider [para 18]. The witnesses who had been present during or immediately after the first race attempted to identify where the plaintiff had come to rest after he had been thrown from his bike. The locations varied markedly [para 15]. The Master said [para 21]:
"There is a critical factual dispute, the resolution of which will ultimately determine the outcome of these proceedings. If the plaintiff came to rest where the defendants' witnesses say, the plaintiff's case fails on liability. If the plaintiff came to rest where Mrs Armstrong, Messrs Lamb, Pettit and Flannigan say, the plaintiff will succeed on liability. I have found my task of fact finding difficult due to the fact that the accident occurred within seconds, it was very noisy and dirt and dust would have impaired clear vision. Furthermore, many of the witnesses were first asked to recall the accident many years after the accident occurred."
24 The Master reviewed the evidence of each witness who was present when the accident occurred or soon afterwards [paras 25-95]. Eleven of the defendants' witnesses had attended a "surveying excursion" on the site not long before the trial when they attempted to identify where the plaintiff had come to rest. The Master thought their evidence may have been "subtly influenced" by the versions given by others and she should give it lesser weight [para 24]. She also said that she had rejected or discounted the evidence of Mr Fulton [para 31], Mr Miles [para 68], Mr Moffatt [paras 79-80] and Mr Cole [para 93].
25 She reviewed the relevant evidence and made findings about the accident [paras 96-9]. She found that collisions were ordinary incidents of motor-cross racing and that negligence in this respect had not been established [para 98]. She said the plaintiff's bike cartwheeled and he went over the handlebars and hit a tree head first at a height of about 1 to 1½ metres above the ground and his body then came to rest near the butt of a large tree [para 99]. She had earlier accepted Mr Lamb's evidence that he had seen the plaintiff hit a tree [para 51].
26 She reviewed the evidence about the location of the tree [paras 100-4]. This was the issue which she had previously said had to be decided [para 6], and would determine the outcome of the proceedings [para 21]. She again referred to the need to make "critical findings" about where the plaintiff came to rest and the location of the tree [para 99].
27 Under the heading "The location of the plaintiff" she again reviewed the evidence on this issue [paras 100-4]. In doing so she considered [para 101] the evidence of Mr Moffatt and Mr Miles whose evidence she had earlier discounted or rejected [paras 68, 79-80]. She referred to the evidence of six witnesses, including Mr Moffatt, who said the plaintiff came to rest opposite what was known as the Pee Wee track, closer to the start line, and found that their evidence on this issue was incorrect [para 104].
28 The Master concluded this part of her judgment without making other findings or the critical finding, and then considered the expert evidence. Mr Schnerring, based on photographic evidence, said that some large trees were only about one metre from the edge of the track near where the plaintiff finished up [para 105]. Sergeant Carrero, who inspected the track after the accident, said that there were trees within 2 metres of the track near the start of the hairpin bend [paras 106-7]. Mr Keramidas agreed that a group of trees near where the Master found the crash occurred were within 3 metres of the track and that it was foreseeable that someone could hit those trees in the course of an accident. He accepted that action should have been taken to remove the smaller of two trees where Mrs Armstrong said the accident occurred but the Master was not able to find that the plaintiff hit that tree [para 113].
29 The Master then made the following findings [para 115]:
"… the plaintiff was lying near the butt of a large tree possibly with his legs as close to 1 to 2 metres from the tree. Even if I was to find that the plaintiff came to rest in the position indicated by Mr Lamb, I could not on the balance of probabilities identify the precise tree with which the plaintiff collided. On the preponderance of witness evidence, I am unable to find on the balance of probabilities which tree the plaintiff hit, nor am I satisfied that the tree was in fact within 2 to 3 metres off the edge of the track. I have reached the conclusion, that the plaintiff has not proved on the balance of probabilities, firstly, which tree he hit and secondly, that the distance of the tree was within 2 to 3 metres from the edge of the track."
30 She held that there should have been a clear zone of 2 to 3 metres from the edge of the track and said that "at the place where the plaintiff came to rest, the tree that the plaintiff hit was not located within the 2 to 3 metre clear zone" [para 120]. She concluded that "the trees", which presumably included the one the plaintiff hit, were further back than 3 metres from the edge of the track and did not require protective barriers around them [para 121].
31 The Master made no adverse credit findings against Mrs Armstrong [paras 44-6] although she may have rejected her evidence of where the plaintiff's body was lying in relation to the start line and a small crest on the track [para 114]. However this finding was not significant. What was significant was the distance the plaintiff was from the edge of the track and where the tree was that he hit.
32 Mr Pettit was an ambulance officer who came to take the plaintiff to hospital. He said that his body was 10 feet from the edge of the track. The Master made no adverse credit findings against Mr Pettit [paras 73-4].
33 Mr Flannigan was a competitor who had a slow start because his motorcycle stalled, and was at the back of the field. He stopped and went to the aid of the riders, including the plaintiff, who had been thrown form their motorcycles. He said that the plaintiff was lying about 3 to 4 feet from the butt of a large tree which was 3 metres from the tyres at the edge of the track [paras 25-6]. The Master made no adverse credit findings against Mr Flannigan.
34 Mr Lamb, another independent witness, who was to compete in a later race, had positioned himself to get a clear view of the hairpin bend to see how the riders dealt with it. He saw the accident which took place about 150 metres from the start line and saw the plaintiff hit a tree 2 to 3 metres off the track. He could no longer identify the particular tree, but said that the plaintiff's legs were close to the tree he hit, which was 2 to 3 metres off the track [para 51].
35 Mr Lamb ran to help the plaintiff, rendered first aid and immobilised his head and neck until the ambulance officers arrived. He noticed that the plaintiff's helmet had scuffmarks on it. The Master made no adverse credit findings against Mr Lamb and accepted parts of his evidence [paras 48-53].
36 The witnesses who placed the plaintiff's body at the correct distance from the start line, as found by the Master, included Mr Lamb and Mr Flannigan. The other witnesses who placed the plaintiff at this distance, but further away from the edge of the track were Messrs Rawson, Jones, Cole, Ramsay, Dixon and Hollis and Mrs Dixon [para 104]. The Master had earlier expressly rejected the evidence of Mr Cole about the position of the plaintiff as unreliable and unsafe [para 94] and his evidence on this topic should have been ignored.
37 Messrs Rawson, Jones, Ramsay, Dixon and Hollis and Mrs Dixon had been involved in the surveying excursion when they had attempted more or less, as a group, to identify where the plaintiff had come to rest [para 23]. The Master had said that she would give "lesser weight" to their evidence, but does not have appear to have reminded herself about this when she came to make a finding about the position of the plaintiff [paras 104, 113, 115]. Compare Day v Perisher Blue Pty Ltd [2004] NSWCA 110 paras [34-5].
38 The Master made adverse credit findings, in one degree or another, against all the witnesses who located the plaintiff at the correct distance from the start line, other than Messrs Flannigan, Lamb and Hayller. Mr Hayller did not see the accident, and did not see that plaintiff on the ground but saw a group of people on the left hand side of the track where the plaintiff was about 1 to 2 metres in from the edge [paras 32-4]. The Master found that he had an unimpeded view. His evidence was not inconsistent with that given by Mr Lamb.
39 Mr Lamb was twice recalled to give further evidence. He said on the first occasion that the tree that the plaintiff hit was 2 to 3 metres off the track, and there was a group of trees in the vicinity which were close together (black 1/128). He saw the plaintiff virtually flip and go backwards (1/129). When he got to where the plaintiff was lying his legs were in the vicinity of the tree that he hit (ditto). Mr Lamb said that he "cannot identify any particular tree that he came into contact with" (1/141-2, 1/233). He saw the plaintiff hit the tree from 30 to 50 metres away (1/233).
40 He was recalled a second time to be shown a video of a race meeting the year before the accident. He said that as one got closer to the hairpin bend the trees are quite close to the track (2/271, 272). The tree the plaintiff hit was not on the bend (2/273). The trees where he landed were 2 to 3 metres from the track (2/273, 274). When asked how far back from the corner was "his tree" he said, with reference to the video, "I can show you the trees that he went into" and he did so on the screen, identifying a clump of three or so trees (2/278).
41 Mr Miller properly conceded that there was nothing he could point to in the evidence of Mr Lamb which would provide a basis for devaluing his evidence (T 46 (25 & foll)) and having read it I must agree.
42 The Master gave no reasons for not accepting the evidence of Mr Lamb and Mr Pettit and it is even possible she accepted it. There are other problems with her reasons. In para 21 she said:
"If the plaintiff came to rest where … Messrs Lamb, Pettit and Flannigan say, the plaintiff will succeed on liability."
43 However in para 115 she said:
"Even if I was to find that the plaintiff came to rest in the position indicated by Mr Lamb, I could not on the balance of probabilities identify the precise tree with which the plaintiff collided."
44 There is a contradiction between these paragraphs which was not explained.
45 The Master also appears to have misunderstood Mr Lamb's evidence. He did identify the tree because he said that the plaintiff hit it, did a flip and went backwards and his legs were in the vicinity of the tree he hit (1/129). It was one of a group of trees, close together (1/128) which he identified on the video as the trees the plaintiff went into (2/278).
46 What Mr Lamb could not do was identify the tree from photographs or the video. However, with respect to the Master, Mr Lamb's evidence did identify "the precise tree with which the plaintiff collided" as the one close to his feet where he lay (compare para 115). There was no need for further identification. It was enough that Mr Lamb could identify it as one of small clump of substantial trees which Mr Lamb said was 2 to 3 metres off the track.
47 The Master misdirected herself that the plaintiff had to identify the precise tree and misunderstood the evidence when she said [para 115] that even if she accepted the evidence of Mr Lamb she could not find for the plaintiff. This was inconsistent with what had been stated earlier in her reasons [para 21] when she said that if the plaintiff came to rest where Mr Lamb said he did the plaintiff would succeed.
48 The Master has failed to make what appear to be critical findings of fact or to explain why she did not have to make such findings. In the light of these conclusions the Court has no option but to order a general new trial. It is unfortunate that a trial lasting 14 days has failed to yield a result, and there has to be a new trial. However there may be some scope for orders under SCR Pt 51 r 23(5), if the parties cannot agree, which would limit the issues on the new trial and make it unnecessary to recall all the witnesses. The following orders should be made: