Carter v Hastings River Greyhound Racing Club

Witnesses The plaintiff's experts on liability Medical evidence Background The plaintiff's interest in greyhounds The pleading framework The injury The defence The Wauchope greyhound track The lure The catching pen gate The day of the accident The accident Liability Whether the risk of harm was "obvious" Whether operating the gate was a "recreational activity" The defendant's submissions The plaintiff's submissions Consideration Significant risk of physical harm The defendant's submissions The plaintiff's submissions Consideration Intoxication Evidence Consideration Volunteers The defendant's submissions The plaintiff's submissions Consideration Volenti non fit injuria Duty of care Breach The plaintiff's submissions The defendant's submissions Consideration (1) Foreseeability - s 5B(1)(a) (2) Not insignificant - s 5B(1)(b) (3) Reasonable precautions - s 5B(1)(c) Precaution (a) - gate modifications The plaintiff's submissions The defendant's submissions Consideration Precautions (b) and (c) Consideration Conclusion Causation The plaintiff's submissions The defendant's submissions Conclusion Contributory negligence The plaintiff' submissions The defendant's submissions Conclusion Damages After the accident The plaintiff's condition on release from hospital The plaintiff's ongoing medical treatment The plaintiff's mental health following the accident The plaintiff's circumstances as described in 2017 The plaintiff's inability to drive Events in 2018 Medical evidence Question 2 - What are the ongoing effects of any injury sustained on 25 April 2015? Question 3 - In particular, please provide you opinion and reasons as to whether the plaintiff has any of the following ongoing problems and whether they are related to the injury sustained on 25 April 2015: (i) tibial and fibular factures (ii) soft tissue injury to the back of his left calf (iii) tibialis posterior dysfunction with arch collapse (iv) moderate post-traumatic ankle osteoarthritis Question 4 - Has the medical treatment received by the plaintiff to date been reasonable and necessary as a result of the incident on 25 April 2015? Question 5 - Does the plaintiff require future treatment as a result of the incident on 25 April 2015? If so, please identify the type of treatment and its cost Question 6 - Specifically, please provide your opinion and reasons as to whether the plaintiff will require a left ankle fusion at any stage and, if so why, when and give a detailed costing of that procedure Question 7 - Has the plaintiff had any physical limitation or restrictions likely to have impaired his ability to undertake domestic household activities as a result of the incident on 25 April 2015? If so, please identify such limitations and restrictions, the type of activities likely to have been impaired and for what periods? Question 8 - Has the plaintiff been left with any incapacity for work as a result of any injuries sustained on 25 April 2015? If so, for what type of activities? Further operation Credibility Non-economic loss Consideration Scarring Economic loss Past and future out of pocket expenses Future out of pocket expenses Future operation Past loss of earning capacity The plaintiff's submissions The joint report dated 5 March 2019 Consideration Future loss of earning capacity Past and future superannuation Past domestic care and assistance Future domestic care and assistance Result Costs The Court orders

Judgment

1. HER HONOUR: The plaintiff seeks damages for injuries sustained to his left leg on 25 April 2015 at the defendant's greyhound racing track.
2. The plaintiff is Jason Bruce Carter. The defendant is Hastings River Greyhound Racing Club ("the Club").

Witnesses

1. The plaintiff, as well as Kane Heuston, David Brasch and the plaintiff's mother, Gail Kelly, provided affidavits, gave evidence and were cross examined. The plaintiff also relied upon the statements of Steven John Baker (undated) and Rex William Nairn dated 6 March 2019.

The plaintiff's experts on liability

1. The plaintiff relied upon the report of Denis Cauduro of Cauduro Worksafe Pty Ltd dated 1 August 2017. He was not required to give evidence.

Medical evidence

1. The plaintiff relied upon the reports of Dr A G Hopcroft, treating orthopaedic surgeon, dated 8 September 2015; Nick Ratcliffe concerning total care costing of activities of daily living dated 18 April 2019 and 11 December 2017; Associate Professor Nigel Hope, orthopaedic surgeon, dated 12 July 2016 and 9 January 2018; Stephanie Barlin, podiatrist, dated 8 June 2016 and 19 May 2017; Associate Professor Dean A Pepper, orthopaedic surgeon, dated 21 April 2017; Mr Shane Murray, physiotherapist dated 2 May 2017; Dr Andrew Williams dated 14 May 2017; Dr B D Parsonage dated 21 July 2017; and Annie Hartley, vocational psychologist and Gillian Stewart, physiotherapist, from Vocational Capacity Centre dated 14 February 2018.
2. The defendant replied upon the reports of Anna Hughan, occupational therapist dated 24 August 2017; Dr David Maxwell, orthopaedic surgeon dated 7 September 2017; and Kieran Fraser, clinical psychologist, from Medico Legal Assessment Group dated 25 July 2018.
3. Associate Professor Hope and Dr Maxwell prepared a joint report dated 11 March 2019. They were not required to give conclave evidence.

Background

1. The plaintiff was born in 1971 and is the second eldest of four children. He is currently 47 years of age.
2. His father worked as a truck driver. When the plaintiff was about four years old, his parents separated. He and his siblings lived with their mother. About a year later, his mother married a man who worked as a carpet layer, and the family settled in the Southern Shire area of Sydney.
3. The plaintiff left school in Year Nine. He had trouble with all subjects and was not a good reader or writer. He described himself as a "slow learner".
4. The plaintiff wanted to be a jockey. He loved horses and was passionate about horse racing. However, although he got an apprenticeship at Randwick in Sydney, he quickly became too heavy to pursue his chosen career. He remained in the industry for approximately five years working instead as a stable hand.
5. It was during that time that the plaintiff started carpet laying. His step father encouraged him to get into the industry, organising jobs for him and teaching him the trade. In the years after he left school, the plaintiff would undertake track work early in the morning and then lay carpet in the afternoon. After five years as a stable hand, he gave up that work and transitioned into full-time carpet laying.
6. The plaintiff's work as a carpet layer ordinarily followed the same daily routine. He would first cut the carpet and transport it in his van to the location of installation. On arrival, the plaintiff and whoever was working with him would remove any furniture from the room and rip up the existing carpet and underlay. They would then lay the new underlay and carpet, reposition the furniture and take the old carpet to the tip.
7. The plaintiff's work involved a lot of bending, kneeling, crouching and carrying. He used a device called a "knee kicker" to install the carpet. It required him to place a device on the ground and forcefully ram it with his knee to secure the carpet into the wall. Carpet laying required heavy physical activity on a daily basis. The plaintiff worked Monday to Friday, commencing at approximately 7.00 am each day and finishing some time mid-afternoon.
8. When the plaintiff was approximately 22-23 years old, he was injured while laying carpet for a company at Bexley when he jammed his right knee into the prongs of an electrical plug. After his release from hospital, a bursa which had developed on the knee became infected, and he had to be re-admitted to hospital for 10 days. The plaintiff ultimately made a claim for compensation in relation to his injury and received a payout of approximately $15,000. He says he has not experienced any ongoing problems with his right knee since the infection healed.
9. In his mid-twenties, the plaintiff married. His wife worked as a hairdresser. They had two daughters. After this first marriage fell apart, the plaintiff was single for approximately three years before commencing a de facto relationship with his second partner. She was working in a hotel at the time. Their relationship continued for approximately four years. They had a son who is now in his teens. Throughout both relationships, the plaintiff lived in Sydney and worked as a carpet layer.
10. In about 2007, the plaintiff and his mother moved to Wauchope, in the Port Macquarie area. The plaintiff was able to source work in the area laying carpet, both as an employee and also for Harvey Norman as a sole trader under the name "George & Co".
11. Before the accident, the plaintiff says was in very good health. The nature of his work meant that he stayed physically fit. He could walk long distances and had no problems running. He had no trouble sleeping, driving a car or attending to his daily hygienic and dietary needs. The plaintiff enjoyed fishing and had his own boat, which he was able to launch and operate without difficulty.
12. He did not have any mental health issues. He was not taking any medications. He had a number of friends with whom he regularly socialised. He worked on a full-time basis and did his own bookkeeping. At the end of the financial year, his accountant prepared his tax returns.
13. Initially after the plaintiff moved to Wauchope, he lived with his mother in various rented residential properties. Since around 2011, they have rented a nine-acre property at Port Macquarie. The property contains a house where the plaintiff's mother and brother were living before the accident, and a self-contained converted garage ("the granny flat") where the plaintiff lives. After the accident, the plaintiff's mother moved into the granny flat with him to assist with his personal and domestic care.

The plaintiff's interest in greyhounds

1. It was in around 2009 that the plaintiff became involved in the greyhound industry. On the recommendation of his brother, he purchased his first greyhound to train and race.
2. The plaintiff says his involvement with greyhounds has always been as a hobby. He began attending local greyhound races on weekends to watch his dog race. He says that while it was nice to occasionally place or win, he did not participate for the prize money, which was only ever a modest sum. Over time, the plaintiff obtained his own trainer's licence and purchased more dogs. Ordinarily he would train the dogs at home, but at other times he would take the dogs to the tack at the local Wauchope Greyhound Racing Club (the "Wauchope greyhound track") so his dogs could participate in the Sunday morning trials.
3. At the time of the accident, the plaintiff owned and trained approximately eight to 10 dogs. Caring for the dogs involved various physical activities. The plaintiff had to feed and look after them, and supervise their training. Prior to the accident, the plaintiff was able to carry out those tasks without difficulty.

The pleading framework

1. By amended statement of claim ("ASC") filed in Court on 19 March 2019, the plaintiff pleaded that on Anzac Day, Saturday, 25 April 2015, he was lawfully upon the track of the Hastings River Greyhound Racing Club for the purposes of racing three of his dogs, respectively in races two, four and seven.
2. Between races two and three, the plaintiff was walking past a committee member of the Club, Steve Barker, who asked the plaintiff if he was free to operate the catching pen gate during races five and eight. The track had two gates: the catching pen gate and the returning gate. Although the plaintiff had never before operated a track gate during a race meeting, he had seen it done on numerous occasions and had done it himself two or three times at race trainings. He says he agreed to Mr Barker's request as a gesture of good will.
3. The catching pen gate was located at the end of the first straight. To operate it, the plaintiff had to wait for the dogs to run past and then move the gate across the track to a point near the inside railing, leaving enough space between the gate and the railing for the lure to pass after the finish of the race. He then had to close the gate. This final step steered the dogs off the track and into pens, which prevented them from continuing to chase the lure around the track.

The injury

1. The plaintiff alleges that as the dogs ran down the first straight during race three, he moved the catching pen gate as required across to the inside railing, leaving just enough space for the lure to go past after the finish. As he stood between the gate and the railing, he noticed a dog fall at the first turn. He watched the fallen dog recover and run past the finish line, well behind the pack. It was in that moment, as the plaintiff's eyes were fixed on the straggler, that the lure "suddenly and unexpectedly" smashed into his left leg between his knee and ankle, causing him to suffer personal injury, loss and damage. The plaintiff pleaded that his injury, loss and damage were caused by the negligence of the defendant, its servants or agents (ASC [2] to [8]).
2. It is common ground that the defendant, as an occupier, owed a duty to take reasonable care to avoid a foreseeable risk of injury to entrants and volunteers.
3. The plaintiff further pleaded (ASC [11] to [17]): "Foreseeability and the Risk of Harm 11. It was foreseeable to a reasonable person in the position of the defendant that in failing to take reasonable care to avoid a foreseeable risk of injury to entrants and/or volunteers it would expose the plaintiff to a risk that he would suffer harm of the nature and in manner set out above. The Scope of the Duty 12. The exercise of reasonable care extended to guarding against the risk that the entrants using the premises for usual and permissible purposes would suffer harm of the nature and in the manner set out above. Significance 13. The risk of harm set out above was not insignificant. Precautions 14. The risk of harm set out above could have been avoided by adopting the following precautions: a. Delegating the job of operating the track gate to an employee and or someone properly trained in the operation of the gate. b. Training and instructing the plaintiff not to stand between the track gate and the inside railing so that he was in the way of the lure; but to remain behind the gate at all times. c. Providing a track gate with a flap in the bottom corner of the gate so that the gate could be closed immediately after the dogs had passed down the first straight and the lure could pass through the closed gate without it having to remain ajar. Breach of Duty 15. In response to the risk of harm set out above, a reasonable person in the position of the defendant would have taken the precautions set out above. Particulars a. The probability of the occurrence of the risk was relatively high. b. The harm would likely cause an unsuspecting person serious detriment. c. The defendant was in a better position to assess the risk of harm and to avoid it than the plaintiff. d. The burden of taking the precautions as set out above was not incommensurate to the risk of harm as they were relatively inexpensive and not inconvenient. The social utility of the activity that created the risk of harm did not outweigh the taking of the precautions. 16. The defendant failed to adopt the precautions as set out above and thereby breached its duty of care to the plaintiff. Causation 17. The failure of the defendant to take the precautions set out above were part of a set of conditions necessary to the occurrence of the aforesaid injury, loss and damage, particulars of which are set out in the Statement of Particulars."

The defence

1. By further amended defence ("FAD") filed on 20 March 2019, the defendant pleaded volenti non fit injuria, and denied it was liable pursuant to ss 5B, 5D, 5F, 5G, 5H, 5K, 5L, 50 and 61 of the Civil Liability Act 2002 (NSW). It also alleged that the plaintiff was contributorily negligent.
2. The defendant is a local, non-profit club comprised of a collection of country greyhound enthusiasts. It attracts few members of the public and offers very modest prize money. Races at Wauchope, as at Taree and Kempsey, are "non-TAB" and untelevised.

The Wauchope greyhound track

1. The Wauchope greyhound track is located along Beechwood Road, Wauchope. It contains a 600-metre track which holds races over 384 and 457 metres. On the day of the accident, race three was over 384 metres.
2. The layout and operation of the track has been best described by the president of the Club, Mr Rex Nairn, who has been its president since 1999 (Ex G(i), Tab 5). It is his description, which was not subject to challenge in these proceedings, which I gratefully reproduce.
3. In 2015, the Club was scheduled to hold 15 race meetings, in addition to trials every Sunday morning. The people required to operate a greyhound race consist of a lure driver, a starter, a catching pen gate operator and a return gate operator. The tasks involved in all of these roles are quite straightforward, including the role of catching pen gate operator, and there is no formal training given or required. The people who perform the roles are all unremunerated volunteers, with the exception of the lure driver and the starter, who are reimbursed for their travel costs. Since the plaintiff became involved with the Club, the catching pen gate operator has always lived locally and has never received any reimbursement or payment.

The lure

1. During a greyhound race, the greyhounds chase a lure made from a rubber sponge covered with material and a "tail" to resemble a rabbit. The rabbit is affixed to a metal bar that screws into a carriage, which propels the lure around the inside rail of the track. The lure carriage is propelled by a metal cable that runs along rollers and through pulleys positioned at regular intervals. It is powered by a Holden petrol motor. The lure, with the rabbit attached, extends less than a metre onto the track from the inside rail. The lure is controlled by a hare driver, who sits in a brick tower located within the centre of the track, about 50 metres from the catching pen gate. A member of the Club performs checks on the operation of the lure, cables, springs and pulleys approximately once a month. According to Mr Nairn, there have been no changes to the lure or its operation since he became president of the Club.

The catching pen gate

1. The catching pen gate is located near the start of the back straight. It is about 7.5 metres wide and 1.2 metres high and is attached by hinges and a metal cable to the outer fence of the track.
2. The purpose of a catching pen gate is to catch all the greyhounds after a race is complete. At the time of the accident, the catching pen gate was opened and closed manually. It shared its side with part of the outer fencing of the track, and another side with the triangular-shaped catching pen just outside the track. The catching pen gate was referred to as "open" when it was still forming the outer fence of the track, so that the track was not blocked off by the catching pen gate and the greyhounds could continue around the track.
3. The usual procedure when operating the catching pen gate was to keep it open during a race, and then close it once the race had finished and the lure had travelled past. When the catching pen gate was moved to the closed position, it was only initially moved far enough across the track to allow the lure to pass. The gate was usually moved from open to closed by the operator standing behind it and pushing it onto and across the track. Aside from these general guidelines, there was no set position or location where the catching pen operator stood when closing the gate, so long as it was far enough away from the inside running rail to allow the lure to pass.
4. A diagram showing the layout of the race track is reproduced here (Ex A). The plaintiff marked the diagram and added descriptors at various locations when giving evidence.

The day of the accident

1. On Saturday, 25 April 2015, the plaintiff loaded three of his greyhounds into his dog float car attachment, before driving to the Wauchope track with his mother. They arrived at the track between 11.30 am and noon. While waiting for the races to begin, the plaintiff oversaw the dogs, including having them weighed.
2. There were 10 races scheduled for the day, each of which raced eight greyhounds. The plaintiff's dogs were to participate in races two, four and seven. One of the plaintiff's dogs, Famous Shoes, was a reserve in race two. Due to the plaintiff's injury, race seven never took place.
3. Between races two and three, the plaintiff spoke to Mr Barker, a Committee Member of the Hastings River Greyhound Racing Club. The plaintiff and Mr Barker were casual acquaintances, as they had previously come across each other on race days at the racing track. Mr Barker asked the plaintiff to operate the catching pen gate, and the plaintiff agreed. It was the plaintiff's evidence that he agreed because he wanted to help, but that he neither realised nor was warned of the potential dangers involved in what he had been asked to do.
4. When Mr Baker asked the plaintiff to "do the gate for race five", the plaintiff understood that request to mean the following. The distance for race five was 384 metres, which was less than one full lap of the track. The track had two straights and two turns. The starting gate was in the middle of the back straight, but the plaintiff was not asked to assist with the gate there. He was asked to assist with the catching pen gate, which was located further down the first straight and before the first turn. The grandstand and finish line were on the home straight.
5. The plaintiff explained that it is helpful to visualise the track as a clock face (Aff, 8 November 2018 [69]). The starting gate is located at approximately a quarter past the hour. The catching pen gate is at twenty past the hour, and the finish line is at twenty to the hour. The dogs chased the lure which ran anti-clockwise and was driven by a lure drive operator positioned the other end of the track at the second turn.
6. The plaintiff's second dog raced in race four. Before race five was due to start at 2.20 pm, he moved into position to operate the catching pen gate.
7. The plaintiff pleaded that prior to the date in question, he had never operated the catching pen gate during a race meeting, and only "two or three times" at race trainings. That pleading was the subject of some scrutiny. The plaintiff accepted that he told reporter David Brasch that he had "regularly worked on the catching pen gate during trial days" (T 90.11-17). When giving evidence, he suggested that what he told Mr Brasch might have been said in error and that he had "probably done it about four times in my life" (T 89.38). He conceded that operating the catching pen gate on trial days was precisely the same as on race days (T 85.17), both occurring at the same track, with the same lure and the same catching pen gate (T 77.39-78.06).
8. The plaintiff gave evidence that while Mr Barker asked him to carry out the task of operating the gate, he made no enquiries as to the plaintiff's experience or expertise. The plaintiff was not given any instructions at any time prior to carrying out that task in race five.
9. The plaintiff stated that while he had attended a number of Club meetings and had observed what occurred when races were held, it was his understanding that the people who operated the gates were trained and paid staff. However, as explained by Mr Nairn earlier, the catching pen gate operator was not paid.

The accident

1. It is not controversial that the accident occurred in the way described in the plaintiff's pleading framework set out earlier in this judgment. While operating the gate, the plaintiff became distracted when he saw a dog fall on the track. While his attention was on the dog, he remained in the path of the oncoming lure, which collided with his leg. In cross examination, the plaintiff conceded that there was nothing he could have done to assist the dog, as he could not leave his position manning the catching pen gate (T 93.46-49).
2. In his statement at [89], the plaintiff deposed that the impact of the lure was completely unexpected and came "out of the blue". He felt a massive blow as the lure collided with his shin approximately 10-12 inches up his left leg.
3. Once the lure hit him, it jammed into the gate and came to a stop. The plaintiff had been standing when he was hit, but the impact knocked him off his feet and in his fall, his lower leg and foot ended up under the gate. He could see that his left foot had rotated approximately 300 degrees and was facing almost entirely the wrong way. Initially he felt no pain, but he knew at once that he had been seriously injured.
4. The plaintiff described his state of mind in the moments after impact as one of shock. He continued lying in the middle of the track, and soon began to feel pain. A number of people came running. They asked how he was. The plaintiff told them that he had been hit by the lure and was in pain. Someone said, "We've called the ambulance". When the paramedics arrived, they placed him on a stretcher and drove him by ambulance to the emergency department at Port Macquarie Base Hospital.

Liability

1. These proceedings are governed by the provisions of the Civil Liability Act. In its defence, the defendant relies upon ss 5F, 5G, 5H, 5L, 5N, 5R and 5S of the Civil Liability Act.
2. Section 5L of the Civil Liability Act provides that there is no liability for harm suffered from the materialisation of an obvious risk of a dangerous recreational activity. Even if the plaintiff establishes duty, breach, and causation in relation to his claim in negligence, if s 5L applies, the defendant will have a complete defence: see Leeming JA, Goode v Angland [2017] NSWCA 311 ("Goode") at [5] and [185]. The application of s 5L is therefore the logical starting point for consideration of the plaintiff's claim: Goode at [185].

Whether the risk of harm was "obvious"

1. In determining the application of s 5L in this case, it is first necessary to consider whether the risk undertaken by the plaintiff was "obvious" under the Civil Liability Act. Sections 5F, 5G, and 5H. They read: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. …"
2. In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 ("CG Maloney"), Santow JA observed at [173] that "[m]uch depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated". In this case, the relevant risk to the plaintiff was of serious injury from being struck by the lure if standing in its path during a greyhound race.
3. The question for this Court is whether the risk was one which, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. That was the position at common law as stated in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126]-[129] ("Wyong Shire Council"); Mulligan v Coffs Harbour City Council [2004] NSWCA 247 per Tobias JA at [161], and continues to apply under the Civil Liability Act: see Tobias JA in Jaber v Rockdale City Council [2008] NSWCA 98 ("Jaber").
4. "Obvious", under its ordinary meaning and in s 5F(1), means something which is "clearly apparent or easily recognised or understood": see Jaber at [35]. Whether a risk is obvious is a matter to be determined objectively.
5. Section 5F(2) states that an obvious risk includes one which is "common knowledge". What is common will depend on the background and experience of a reasonable person in the position of the plaintiff, including his age, observations and previous involvement with the activity: Great Lakes Shire Council v Dederer [2006] NSWCA 101 at [152]; Doubleday v Kelly [2005] NSWCA 151 at [19]. In this case, the plaintiff was a person who had a decade of experience with greyhounds, attended races weekly and had on at least four prior occasions operated the same closing pen gate at the Wauchope greyhound track on trial days. As previously stated, there is no difference between operating the catching pen gate during training, at trials or on race days.
6. Further subsections demonstrate the width of the statutory conception of what may be considered "obvious". Section 5F(3) states that a risk may be obvious even if it has a low probability of occurring. The plaintiff himself has alleged that the probability of the lure colliding with a person was "relatively high" (FASC [15(a)]). Section 5F(4) provides that a risk can be obvious even if it is not prominent or physically observable. In this case, the visibility of the lure was central to its purpose, irrespective of whether the plaintiff had his eyes trained elsewhere at the moment of impact.
7. As explained in further detail above, the activity of operating the catching pen gate ordinarily involved closing the gate to a point where there was a gap so as to allow the lure to pass, watching the lure, and standing one or two metres away from it until it passed before closing the gate completely (JCB 49, Aff, Steve Baker at [15] and [16]; JCB 44, Aff, Rex Nairn [25] and [26]). A significant part of the task involved pausing and watching the lure so as to make provision for its passing.
8. In oral submissions, counsel for the plaintiff conceded that the risk was obvious, and that the plaintiff had acknowledged "in hindsight" that the risk "was easily identifiable" (T 293.5-13).
9. The plaintiff himself, in describing the risk as obvious, stated that he was aware of it. In cross examination, he gave the following evidence (T 90.29-T 91.1-4): "Q. Getting back to what happened, so you're in a position where you've taken the gate out and you left a gap, and somehow for you to be struck you've stepped into the gap between the end of the gate and the rail, correct? A. Yes. Q. That was the gap that you'd specifically created to allow the lure to come through after the race, correct? A. Yes. Q. You were asked a question by Mr Austin about where you were looking and you did [drew] an arrow, but to be struck where you were, do you agree that you must have had, essentially you'd turned your back to the oncoming lure, well the direction the lure was coming from and the dogs were coming from? A. Yes. Q. So you knew that was the gap for the lure to go through? A. Yes. Q. You knew you shouldn't stand there? A. Yes. Q. It was the only place that you could get struck by the lure? A. Yes. Q. But you ended up standing there anyway? A. Yes."
10. The authorities disagree as to the use which should be made of a plaintiff's actual knowledge of the risk: see Annotated Civil Liability Act, Third Ed, Dominic Villa, p 187. Counsel for the defendant stated that the plaintiff's admission reproduced above was a "knockout blow" (T 258.47). Perhaps the better view was expressed by Meagher JA in Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 at [32], where his Honour stated that a plaintiff's actual knowledge was not relevant to the objective inquiry of whether the risk was obvious. However, the way the plaintiff acquired that knowledge may be relevant when determining whether the risk would have been obvious to a person in the plaintiff's position.
11. Outside of informing "obviousness" under s 5F of the Civil Liability Act, the plaintiff's admitted awareness of the risk is relevant under s 5G. Section 5G states that an injured person is presumed to be aware of an obvious risk. Where a defendant has raised the defence of s 5L, if the risk of harm is obvious, the onus of proof is reversed and the plaintiff is required to positively establish that he was not aware of it: see CG Maloney per Santow J at [101]. On the basis of the plaintiff's evidence, the presumption of awareness in s 5G is confirmed.
12. In these circumstances, I am satisfied that the risk of suffering serious injury from being struck by the lure if standing in its path would have been obvious to a reasonable person in the position of the plaintiff.
13. For completeness, I note that the plaintiff made repeated reference to the fact that no one inquired into his experience of operating the gate, provided instructions or gave warnings about the danger. However, the defendant's failure to warn the plaintiff is no bar to the defence in s 5L of the Civil Liability Act. Section 5H provides that where a risk is obvious, as I am satisfied that it was, the defendant does not owe a duty of care to a plaintiff to warn of it.

Whether operating the gate was a "recreational activity"

1. The defendant relied upon the operation of Part 1A, Division 5 (Recreational Activities) of the Civil Liability Act. Section 5J provides that Division 5 only has application if the plaintiff was engaged in "recreational activity". It is under this division that the defendant has pleaded that pursuant to s 5L, it is not liable to the plaintiff as his injury resulted from the materialisation of an obvious risk of a dangerous recreational activity.
2. Sections 5K and 5L of the Civil Liability Act read: "5K Definitions In this Division: dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. "5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk."
3. The defendant bears the onus of demonstrating that the relevant activity in s 5K fits into any of the above definitions: Fallas at [122]-[123] (Ipp and Tobias JJA agreeing).

The defendant's submissions

1. The defendant referred primarily in its submissions to the judgment in Goode. In Goode, the Court of Appeal held that the evident purpose of the definition of "recreational activity" in s 5K is to capture activities which satisfy any or all of the stated character in (a), purpose in (b) or location in (c). Even then, the definition is not exhaustive: see Leeming JA at [190], with Beazley P at [7] and Meagher JA at [177] agreeing.
2. In Goode, Leeming JA stated at [205]: "Section 5K contains an elaborate definition with elements which emphasise its generality, such as its three disjunctive limbs, each of which commences with 'any'. It is difficult to see how part of the defined term could limit that generality".
3. In her judgment, Beazley P considered several cases involving s 5K and then stated at [174]: "These authorities might be seen to support the proposition that a 'recreational activity' within s 5K only applies to activities that are of a recreational character. This approach is arguably consistent with the provisions of Part l, Division 5 more generally. Section 5M relates to circumstances where a person engages in a recreational activity in which the defendant gave a risk warning to the plaintiff. Section 5N relates to contracts for services supplied to a person in relation to recreational activities. These provisions would appear to be directed to persons taking part in "recreational" activities, as that term is commonly understood, and not to professional sportspeople who are either in employment or otherwise engage in the sport professionally for reward. It also seems incongruous that an activity undertaken as one's profession, trade or livelihood would be subject to the same legislative exclusion as an activity undertaken for enjoyment, relaxation or leisure, or for that matter, physical fitness or the acquisition of skill. However, I am persuaded for the reasons given by Leeming JA that that is the proper construction of, and therefore the effect of ss 5K and 5L."
4. The defendant also referred to the observation of Meagher JA, who stated at [178]: "Recommendation 12 in the Ipp Committee's Review of the Law of Negligence Final Report (2002) defined "recreational activity" as "an activity undertaken for the purposes of recreation, enjoyment or leisure which involves a significant degree of physical risk". The Committee justified the distinctive treatment of recreational activities on the basis that "people who participate in such activities often do so voluntarily and wholly or predominantly for self-regarding reasons" (at [4.11]). Hence, the rule would not apply to "[m]embers of schools and other institutions ... required to engage in sporting and other recreational activities" or "people who participate in recreational activities in the course of their employment." (at [4.12]). If Parliament had wished to maintain a distinction based on voluntariness, it could have retained the language in the Report. Instead, it introduced paras (a) and (c), which attach to the objective characteristics of an activity or place, rather than to the purpose of the relevant participant in undertaking the activity. That departure from the Committee's recommendation must be taken to have broadened the scope of the defined expression."
5. The defendant submitted that operating the catching pen gate at the greyhound races at the defendant's track at Wauchope meets the criteria stated in every paragraph of the definition of "recreational activity". Counsel for the defendant argued that the activity may firstly be considered to be "a sport" for the purposes of para (a) in light of the "inclusive" definition emphasised by Leeming JA (T 260.5; T 262.10); that operating the gate was an "activity engaged in for enjoyment, relaxation or leisure" for the purposes of para (b), as the plaintiff was operating the gate out of his love for the pursuit of greyhound racing (T 260.28-29); and finally, that the activity was clearly one "engaged in at a place…where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure" for the purposes of para (c). The defendant submitted that a greyhound track, whose members and participants gather out of the same love for the sport as that described by the plaintiff, is "undoubtedly" such a place (T 260.35).

The plaintiff's submissions

1. The plaintiff submitted that operating the catching pen gate falls outside of the definition of "recreational activity" in s 5K.
2. According to the plaintiff, the activity could not fall within para (a) because operating the gate was not a sport, and did not involve physical exertion or skill: see Belna Pty Ltd v Irwin [2009] NSWCA 46 ("Belna") per Ipp JA at [13].
3. Secondly, to satisfy para (b), the activity must have been one engaged in for the purpose or goal of enjoyment, relaxation or leisure: Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55 per Gleeson JA at [102]-[103], with Meagher & Basten JJA agreeing. The plaintiff argued that by operating the gate, he was undertaking an "official duty or function" on behalf of the event organiser. The purpose and goal of the activity was to pen the greyhounds and prevent them from continuing to chase the lure following the finish of the race. The fact that a volunteer of this kind might gain some sense of satisfaction or enjoyment in undertaking the activity was not determinative of its purpose: see Ipp JA in Belna at [14].
4. Thirdly, the plaintiff submitted that operating the gate does not satisfy para (c), as the words "pursuit or activity" must be contextualised by the adjective "recreational" in the chapeau of the definition in s 5K. The plaintiff referred to the Oxford Living Dictionary definition of "activity", and argued that one of the definitions provided within, "a recreational pursuit or pastime", was most applicable to this case. The plaintiff submitted that the operation of the catching pen gate during an organised race is clearly not a "pursuit".
5. Rather, the plaintiff argued that by operating the gate, he was engaged in a "particular recreational service" for the benefit of those engaged in the broader recreational activity of greyhound racing. Reading the words "pursuit or activity" in para (c) without the context of the chapeau gives rise to an ambiguity. The plaintiff submitted that if the legislature intends to curtail a common law right, then the language must be clear and unambiguous: see Fallas per Basten JA at [117]. A construction that might result in potential unfairness and injustice should be avoided and a fair and just construction preferred: Fallas per Ipp JA at [44]. For these reasons, the plaintiff argued that an interpretation of para (c) that includes operating the gate in this case must be avoided.
6. The plaintiff further submitted that the defendant's reliance on the decision of Goode was misplaced, as it attempted to draw an analogy between a jockey in that case and the plaintiff in this case.
7. While the defendant submitted that Goode is authority for the proposition that the definition of "recreational activity" also covers employees and volunteers engaged in performing tasks on behalf of recreational services providers, the plaintiff noted that in Goode, Leeming JA expressly raised doubt about the situation with regard to employees (and implicitly volunteers), and reserved his position at [207]-[208]. Leeming JA ending his consideration of the issue by stating at [208]: "It is not necessary to express a concluded view on those issues in order to resolve this appeal, and I would not wish to be taken to be doing so in the absence of argument."
8. According to the plaintiff, the word "activity" should be considered in context. When one speaks of "an activity", one ordinarily speaks of a specific action that is "recreational or diversionary" in nature. The plaintiff argued that the word "any" in s 5K does not change the meaning of the word "activity". For example, in Goode, Leeming JA at [191]-[192] considered that the word "any" precluded any distinction between types or classes of sport. When understood this way, the words "sport", "pursuit" and "activity" found in s 5K are all synonyms. The plaintiff argued that this interpretation of the legislation does not cause tension with para (c), because that paragraph was written to create a "temporal connection" that captures other pursuits and activities not ordinarily associated with a specific sport, pursuit or activity carried on at that place. Paragraph (c) does not attempt to expand the ordinary meaning of words "pursuit" and "activity".
9. Finally, the plaintiff submitted that the legislature, when addressing Part 1A of the Civil Liability Act in s 5N, clearly differentiated between "recreational services" supplied by providers, and "recreational activities" engaged in by participants. In light of that section, the performance of race duties, functions or "tasks" by employees or volunteers clearly form what are best described as "recreational services" provided by the defendant for the benefit of those engaged in the recreational activity of greyhound racing. The plaintiff, in operating the catching pen gate, was thus engaged in providing a particular recreational service on behalf of the defendant to those patrons engaged in a particular recreational activity.
10. In these circumstances, the plaintiff argued that it would be "capricious" to suggest that a person could at one time be providing a recreational service, and at the same time undertaking a recreational activity. For those reasons, s 5K cannot pick up duties, functions or tasks performed on behalf of the defendant in a recreational service. Thus, s 5K is not engaged.
11. I note here that I will consider the plaintiff's submissions relating to s 5N in more detail later in this judgment. For present purposes, it is my view that s 5N has no application to the facts of this case.

Consideration

1. In Goode, Leeming JA said of the definition of recreational activity in s 5K at [190]: "Recreational activity is defined inclusively, by reference to three limbs. Each limb is disjunctive. Each limb commences with the word "any", but yet each operates in a different way. The first is directed to the characterisation of the activity, the second to the purpose of the participant, and the third to the location. The evident purpose is for the definition to capture activities if they satisfy any or all of [the three]. Even then, the definition is not exhaustive."
2. The first limb, corresponding with para (a), requires an analysis of whether the activity "bears [the] particular character" of being a sport: see Leeming JA in Goode at [191]. In Belna, Ipp JA determined that the plaintiff's gym regimen fit the dictionary definition of sport as "participation in activities involving physical exertion and skill" ([13]). The Court of Appeal in Goode also determined that a jockey was engaged in sport, although he was racing a horse, not operating a gate on the horse track.
3. In this case, closing the catching pen gate at the greyhound track required physical movement and an ability to follow a basic procedure. However, it is my view that it cannot be said to have involved "physical exertion and skill". It therefore does not fall within that or any other meaning of the word "sport", however inclusively defined.
4. The second limb of the definition of recreational activity, corresponding with para (b), looks to whether the purpose of the activity is "for enjoyment, relaxation or leisure". In Balna, Ipp JA found that in addition to being a sport, the plaintiff's gym regimen was captured by para (b). In his decision, his Honour took into account the fact that the plaintiff described her goals in a gym questionnaire as including "to enjoy life". At [14], his Honour observed: "She stated that her long-term goal was to lose weight and become fit, but this does not detract from the fact that she undertook the activities for enjoyment, relaxation and leisure. The loss of weight and achievement of physical fitness was only a by-product of the exercises that she intended to perform. By analogy, a person who runs marathons in the heat of summer does so for enjoyment, relaxation and leisure, even though she may hope to lose weight in the process."
5. As in Balna, the plaintiff in this case participated in the activity in question for more than one stated purpose. The plaintiff submitted that he operated the gate "as an official duty" on behalf of the Club. His purpose, in that narrow sense, was to divert the dogs off the track to prevent them from catching and mauling the lure. More broadly, the plaintiff participated in community greyhound racing as a hobby and for personal enjoyment. He gave evidence that his occasional winnings and prestige in placing were not his primary goal, and that he "did not do it for the money". The plaintiff stated that he agreed to operate the gate "as a gesture of good will" and because "he wanted to help out" the people and the club that he cared for. The entirety of the plaintiff's evidence is that he undertook the activity of opening the gate for the enjoyment, relaxation or leisure involved in facilitating the relevant greyhound races. For these reasons, it is my view that the activity falls within para (b).
6. Even if I am wrong and the activity does not fall within para (b) of the definition of "recreational activity", it is my view that it falls within para (c), which focuses on its location.
7. In addressing para (c), the plaintiff engaged in what I would describe as circular reasoning. The plaintiff submitted that when reading the phrase "any pursuit or activity", the word "activity" should be understood by one of its dictionary definitions to mean "a recreational pursuit or pastime", and that because operating the gate is not a "pursuit", it is therefore not an "activity". This understanding treats "activity" and "pursuit" as synonyms, despite their pairing as alternatives in paras (b) and (c). This cannot be correct.
8. The plaintiff further submitted that the words "pursuit", "activity" and "sport" are all synonyms for the purpose of s 5K because they appear under the chapeau of "recreational activities". However, "pursuit", "activity" and "sport" are words which define "recreational activities", not the other way around. As Leeming JA stated in Goode at [193]: "…[A] relatively elaborate definition, such as that of recreational activity, should not be read so as to confine its operation into only one of its three limbs, leaving the balance inutile…. The purpose of the triply disjunctive definition is necessary to expand the scope of 'recreational activities' beyond those which have a recreational purpose; that is the point of the first and third limbs."
9. The plaintiff also erroneously submitted that para (c) of the definition of recreational activity was written to create a "temporal connection that captures other pursuits and activities not ordinarily associated with a specific sport, activity or pursuit". However, paragraph (c) clearly creates a proximal, not a temporal, connection.
10. Operating a catching pen gate is an activity. It occurs at a place where people ordinarily engage in greyhound racing, which is a pursuit or activity for enjoyment, relaxation or leisure. I cannot see any construction of para (c) which does not squarely capture operating the catching pen gate as a recreational activity for the purposes of s 5K. It is therefore, in my determination, a recreational activity probably under para (b), and certainly under para (c) of the legislative definition.

Significant risk of physical harm

1. Section 5L of the Civil Liability Act reads: "5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk."
2. In order to make out the s 5L defence, a defendant must establish four matters: (i) that the plaintiff was engaged in a "recreational activity" (s 5K); (ii) that there was an "obvious risk" of that activity, that is, a risk which in the circumstances would have been "obvious to a reasonable person in the position of the plaintiff" (s 5F); (iii) that the harm suffered by the plaintiff was the result of the materialisation of that obvious risk; and (iv) that the recreational activity was a "dangerous" one, that is, that it "involve[d] a significant risk of physical harm" (s 5K).
3. I have so far considered recreational activities and obvious risk, and came to the view that (i), (ii) and (iii) have been established.
4. The final matter to consider in the application of s 5L is (iv): whether operating the catching pen gate involved a "significant risk of physical harm" so as to be a "dangerous recreational activity" as defined by s 5K.

The defendant's submissions

1. The defendant submitted that "significant risk of physical harm" is a composite phrase. The concepts "risk" and "harm" mutually inform each other, so that the risk of harm involved must be more than trivial, but need not be likely: see Falvo v Australian Oztag Sports Association [2006] NSWCA 17 ("Falvo") at [28]-[31]; Jaber at [53]-[55].
2. There is an overlap, in the circumstances of this case, between submissions relating to "significant risk of harm" for the purposes of s 5K and those relating to "obvious risk" for the purposes of s 5F. This is not a case in which the factors which made the activity "dangerous" were different to the factors which suggested that the injury resulted from the materialisation of an obvious risk: see examples identified by Ipp JA in Fallas at [26]-[28].
3. The defendant referred to the statements of Albert Zarb (Ex F [14]) and Kane Heuston (Ex G, Tab 4 [10]), who stated, "It was an accident waiting to happen". The plaintiff argued that their statements were evidence that the "significant risk of harm" in operating the catching pen gate was self-evident. However, Mr Nairn has been associated with the Wauchope greyhound track since 1997, has been president of the Club since 1999, and has operated a catching pen gate. He, like Mr Baker, stated that there is no formal training to perform the role and that it is very simple. Mr Nairn is not aware of any previous incidents in which any person, apart from the plaintiff, has been struck by the lure while operating the gate (JCB, Tab 5, [38]). Neither Mr Heuston nor Mr Zarb (Ex F) identified any previous injury to a catching pen gate operator, even though Kempsey and Taree also did not have gates with a flap at the time of the accident, and still do not.
4. The defendant further noted that at the time Mr Heuston made his statement, he believed that the plaintiff had not operated the catching pen gate before. Mr Zarb was under the same false impression when he made his statement. The defendant also referred to the evidence of the plaintiff's own liability expert (Ex G, Tab 7 [3.4]).
5. According to the defendant, the fundamental problem for the plaintiff in this case is that the very circumstance which he alleged made the "risk of harm" foreseeable for the purposes of s 5B of the Civil Liability Act, and which he alleged required the defendant to take the identified precautions pursuant to s 5B(1)(c), also satisfies the requirements of obvious risk and significant risk of harm for the purposes of ss 5F and 5L. The risk which the plaintiff has asserted required action by the defendant was that the lure, made of a steel bar and travelling at approximately 73 kilometres per hour (FASC [6]), was likely to cause significant physical harm to any person with whom it collided.
6. The defendant also referred to the plaintiff's own allegation that the probability of this risk materialising was "relatively high" (FASC [15(a)]). The defendant argued that the plaintiff cannot have it both ways. If the risk was such that the precautions were required, as the plaintiff attempts to prove elsewhere in relation to s 5B to succeed in his claim, then there was also a "significant risk of harm" for the purposes of s 5L.
7. In this case the risk of harm which made the activity dangerous was the same risk which came home, which was the risk of a person suffering serious injury if standing in the path of the lure.

The plaintiff's submissions

1. The plaintiff submitted that the surrounding circumstances are relevant to a determination of whether the activity was dangerous. He submitted that the lure had the potential to cause serious, but not catastrophic, injury. However, the circumstances of operating the catching pen gate were relevant, including the way in which the activity was ordinarily performed, the actions or omissions of the defendant and the plaintiff's lack of training, experience and competence: see Fallas at [13] & Campbell at [113].
2. The plaintiff submitted that when performed by a trained and experienced operator, closing the catching pen gate was less dangerous than standing on a train platform. The plaintiff argued that given the lack of evidence on the subject, including the fact that none was adduced on behalf of the defendant, the only reasonable inference to draw is that the probability of the occurrence of the risk of harm was very low, and the possible nature of the harm was moderate.

Consideration

1. In Campbell v Hay [2014] NSWCA 129 ("Campbell"), Ward JA discussed the operation of the word "significant" in the definition of "dangerous recreational activity" at [116]: "The definition of 'dangerous recreational activity' must be read as a whole (Ipp JA, with whom Hunt AJA and Adams J agreed, at [28] in Falvo). Regard must be had both as to the nature and degree of harm that might be suffered, on the one hand, and the likelihood of the risk materialising on the other (Falvo per Ipp JA at [28]). The expression constitutes one concept with the risk and harm mutually informing each other (such that the risk of physical harm may be significant if the risk is low but the potential harm is catastrophic or if the likelihood of both the occurrence and the harm is more than trivial; but the risk of physical harm may not be significant if, despite the potentially catastrophic nature of the harm, the risk is very slight) (Falvo per Ipp JA at [31])."
2. Determining whether a recreational activity was dangerous involves interplay between both the extent of the potential harm, and the likelihood of it materialising. A "dangerous recreational activity" cannot mean a recreational activity where there is a significant risk of an insignificant injury, like a scratch or sprained ankle: see Falvo per Ipp JA at [31].
3. In Campbell, Ward JA went on to explain what will constitute a "significant risk" at [116]: "'Significant risk' has been said to mean more than trivial and does not import an 'undemanding' test of foreseeability (Fallas per Ipp JA at [14]); it does not mean a risk that is likely to occur (Fallas per Ipp JA at [16]) but lays down a standard lying somewhere between a trivial risk and a risk likely to materialise (Fallas per Ipp JA at [18]); and as a general guide, it means a risk that is 'not merely trivial, but generally speaking, one which has a real chance of materialising' (Tobias JA at [90]-[91], this being the test his Honour applied later in Jaber v Rockdale City Council [2008] NSWCA 98 at [54]). An objective test is required in determining whether a recreational activity was dangerous (Fallas per Ipp JA at [13]; Basten JA at [136])."
4. Where exactly the word "significant" falls along the spectrum between trivial and likely to materialise, described by Ipp JA in Fallas, will depend on the circumstances in each case.
5. In Fallas, Ipp JA noted at [33] that because, unlike in s 5F, the words "in the circumstances" and "a reasonable person in the position of the plaintiff" are excluded from s 5K, what is dangerous should be considered at a higher level of generality. However, his Honour considered that "time, place, competence, age, sobriety, equipment and even the weather" may render a recreational activity dangerous which would not be otherwise. For example, Ipp JA stated that a certain activity may be safe if the participant is sober, but dangerous to one who is intoxicated ([36]). I will return to the issue of intoxication in more detail later in this judgment, but for the present purposes, I note that I have made a finding that the plaintiff was not intoxicated.
6. So far as the significance of the risk in this case in concerned, the plaintiff himself alleged that the probability of the risk materialising was "not insignificant" and "relatively high" (FASC [13]; [15(a)]). The lure operated mechanically on a track. Its path was predictable and certain. In operating the closing pen gate, the plaintiff was required as a central aspect of the procedure to leave space for the lure to pass so as to avoid a collision. I am satisfied that the likelihood that a person in the position of the plaintiff would suffer injury if standing in the path of the lure while operating the closing pen gate was a risk which had a real chance of materialising.
7. So far as the significance of the potential injury is concerned, the lure was made of a steel bar travelling mechanically at roughly 60 to 73 kilometres per hour. The potential injury suffered by a person standing in its path while operating the catching pen gate was clearly significant.
8. I am satisfied that operating the catching pen gate at the greyhound track involved significant risk of physical harm, and was therefore a dangerous recreational activity for the purposes of s 5L of the Civil Liability Act. The defence is made out. The defendant is therefore not liable to the plaintiff for the harm suffered as a result of the materialisation of the obvious risk of colliding with the lure. There will be judgment in favour of the defendant against the plaintiff.
9. Despite the application of s 5L, I will for completeness consider the remaining aspects of the plaintiff's claim in negligence.
10. Briefly I will address the plaintiff's submissions concerning s 5N. Section 5N reads: "5N Waiver of contractual duty of care for recreational activities (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. (3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity. (5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement. (6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety."
11. As set out earlier, the plaintiff submitted that by operating the catching pen gate, he was engaged in a "recreational service" as defined under s 5N, and therefore could not also be engaged in a recreational activity without a "capricious" result. However, s 5N concerns contractual duties of care. It does not apply in a situation, as in this case, where a plaintiff merely volunteers to help out a local greyhound racing club by closing a gate during a race.

Intoxication

1. Section 50 of the Civil Liability Act reads: "50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced."
2. The defendant acknowledged that it bears the onus of demonstrating that the plaintiff was intoxicated for the purpose of s 50: see Luca v Zupanov [2013] WADC 40 at [48].
3. The defendant submitted that when determining whether the plaintiff was intoxicated, any observations made by other people can be disregarded. The plaintiff was a long-term, heavy drinker. He would have been unlikely to display what might otherwise be regarded as the "typical" signs of a person under the influence of alcohol. Mr Heuston (Tab 4 [16]) did not smell alcohol on the plaintiff, even though he had consumed it. The plaintiff's mother was unaware of his normal drinking pattern.
4. The plaintiff submitted that there is no reasonable ground upon provable facts to justify the allegation that he was under the influence of alcohol at the time of his injury. The hospital records of a "past history" of 15-20 cigarettes and +/- 8 alcohol drinks a day do not provide evidence of intoxication on the day of the accident.
5. Counsel for the plaintiff referred to Russell v Edwards [2006] NSWCA 19 ("Russell"), in which the Court of Appeal held at [40] (per Ipp JA, with Beazley JA and Hunt AJA agreeing) that the word "cause" in s 50 should be construed as meaning "direct cause", and that the direct cause is not the first or the last cause. The determination of what caused the injury involves a common-sense approach: see Russell at [31].
6. The plaintiff submitted that the "direct cause" of the injury was not intoxication, but rather the defendant's egregious want of care. The plaintiff was asked to volunteer to operate the catching pen gate during an organised event. By requesting his help, the defendant placed him in a position of peril which led to the injury.

Evidence

1. The plaintiff says that he had not consumed any alcohol prior to arriving at the racing track. At some time after he arrived, he purchased and consumed a 375 ml can of pre-mixed Southern Comfort and Coke. Shortly before race five, he had purchased a second can and consumed approximately half of it before he went to operate the gate. He says that he was not intoxicated, felt perfectly fine and was clear-headed and alert.
2. The plaintiff's mother accompanied him to the greyhound races. She helped load the car, which contained no alcohol. She observed that in the period between their arrival and the accident, the plaintiff had a can of Southern Comfort and Coke in his hand. To the best of her knowledge, from the time they arrived at the track until the accident, he consumed one full can of Southern Comfort and Coke and had purchased a second, from which he only drank a small amount (Ex G(i), Tab 3 [22]).
3. After the accident occurred, Mr Heuston went to assist the plaintiff. At times Mr Heuston was standing or kneeling next to the plaintiff. The plaintiff was not slurring his words, nor did he smell of alcohol. Mr Heuston was also there with the plaintiff as he was being treated by ambulance officers. He recalls that the plaintiff seemed alert while talking to them and was also not slurring his words at that time (Ex G(i), Tab 4 [16]).

Consideration

1. I accept that the plaintiff drank one can and a little of a second of Southern Comfort and Coke after he arrived at the race track between 11.30 and noon, and before he manned the catching pen gate at about 2.15 pm (T 188.37-46).
2. Section 50(1) of the Civil Liability Act requires a plaintiff to have been "intoxicated to the extent that [his] capacity to exercise reasonable care and skill was impaired." The question of whether or not a person is sufficiently incapacitated will depend on the particular circumstances of the case. As Allsop P observed in Amanda's On the Edge Pty Ltd v Dries [2011] 358 NSWCA at [36]: "Operating machinery, driving a car or flying a plane may be tasks where very little alcohol would be required for the person's capacity to exercise skill and care to be impaired."
3. In this case, the relevant care and skill was that required to operate the catching pen gate. The task was one which required adherence to a basic procedure, but not fine motor skills or analysis.
4. The onus is on the defendant to prove not just that the plaintiff was affected by alcohol, but that his level of impairment was such as to prevent him from exercising reasonable care and skill in operating the gate: see Wells v Council of the City of Orange (No 2) [2017] NSWSC 510. To this end the defendant has relied upon a pharmacological report of Professor MacDonald James Christie dated 4 March 2018. It proceeds on assumptions that have not been made out and is of little relevance. The defence to liability under s 50 therefore fails.

Volunteers

1. The defendant submitted that it is not liable for the alleged negligence because of the operation of ss 60 and 61 of the Civil Liability Act.
2. Sections 60 and 61: "60 Definitions (1) In this Part: community organisation means any of the following that organises the doing of community work by volunteers and that is capable of being sued for damages in civil proceedings: (a) a body corporate, … community work means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, educational or cultural purpose, and includes work declared by the regulations to be community work but does not include work declared by the regulations not to be community work. organised includes directed or supervised. volunteer means a person who does community work on a voluntary basis. work includes any activity. (2) For the purposes of this Part: … (b) community work for which a person receives remuneration by way of reimbursement of the person's reasonable expenses in doing the work, or within limits prescribed by the regulations, is to be regarded as work done on a voluntary basis. (3) A regulation declaring work to be community work may be expressed to extend to apply in respect of civil liability for an act or omission occurring before the commencement of the regulation, except in a case in which proceedings to recover damages for the act or omission were commenced in a court before that commencement. 61 Protection of volunteers A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work: (a) organised by a community organisation, or (b) as an office holder of a community organisation."

The defendant's submissions

1. The defendant submitted that it is a community organisation, as all relevant personnel are volunteers and unpaid (Ex G, Tab 5, Aff Rex Nairn at [10]), and as organising and conducting the greyhound races is community work.
2. The defendant also argued that there can be no suggestion of any absence of good faith, notwithstanding any alleged negligence, in any of the conduct of the defendant on which the plaintiff relies.
3. The defendant further submitted that it is a "person" doing community work, and is therefore not liable to the plaintiff.

The plaintiff's submissions

1. Counsel for the plaintiff submitted that the defendant has not adduced any evidence that the Club was a community organisation, conducting community work "that is not for financial gain" within the meaning of s 60 of the Civil Liability Act. Further, counsel for the plaintiff submitted that in all events, s 61 applies to the direct negligence of a volunteer, not the direct (as opposed to vicarious) negligence of a community organisation. For that reason, s 61 is not picked up in the circumstances of this case. In Echin v Southern Tablelands Gliding Club [2013] NSWSC 516 ("Echin") at [98]-[105] Davies J stated: "98 The Plaintiff does not dispute that the relevant persons from the Club about whom he makes some form of complaint were volunteers within the meaning of s 60 nor that they had the protection provided by s 61. The issue is whether the Defendant obtains a similar benefit by the operation of s 3C. 99 The Defendant accepts that the protection in s 3C is only given in respect of vicarious liability which the Defendant may have. In relation to the particulars of negligence the Defendant accepts that if particulars (a), (f), (g) or (h) are made out any liability the Club would have from those matters would be a direct liability. The Defendant says, however, that any liability the Club has from the Plaintiff successfully demonstrating negligence by virtue of particulars (b) to (e) is strictly a vicarious liability. 100 The Defendant's concession in relation to particulars (a), (f), (g) and (h) is correct. If liability for any of those matters was established the Club would not have the benefit of s 3C. In relation to the remaining particulars the Defendant submitted that any breaches in those ways were breaches by Mr Gamble because he was the Plaintiff's instructor and, to the extent any of those matters is made out, Mr Gamble is the person at fault. The Defendant then submitted that Mr Gamble was the Club's agent for the purpose of training the Plaintiff and that agency resulted in the Club having a vicarious liability for his acts and omissions in that regard. 101 Reliance was placed by the Defendant on what was said by Dixon J (as his Honour then was) in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 at 48-50. Whilst the Defendant accepted that Mr Gamble and the others were not employees or even office-bearers of the Club it was submitted that their relationship to the Club could be analogously compared to the position of the contractors in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21. 102 Both in written and oral submissions the Defendant said that it was vicariously liable for Mr Gamble's acts and omissions in relation to the training of the Plaintiff. Indeed, in oral submissions Counsel for the Defendant said that it was admitted on the pleadings that the Defendant was so liable although where that admission was to be found is not apparent to me. 103 Apart from this admission I would not have thought that the Defendant was vicariously liable for Mr Gamble in his role as an instructor. An examination of the matters thought persuasive by the joint judgment in Hollis at [48] to [57] finds little or no parallel in the little that the evidence disclosed about the arrangements between the Defendant and its instructors. What, however, seems tolerably clear is the lack of control the Defendant had over the instructors when they were exercising their skills and expertise as instructors. Whilst the matter of control is not the key enquiry it remains an important consideration in assessing the relationship: Hollis at [43] to [45], [49] and [73]. 104 If the Defendant had some non-delegable duty of care to the Plaintiff which was breached s 5Q would operate so that the Defendant's liability would be regarded as vicarious. In those circumstances s 3C would, in conjunction with s 61, mean that the Defendant had no liability. However, it is difficult to see that the Defendant owed any such non-delegable duty: Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 at [248]; Kondis v State Transport Authority(1984) 154 CLR 672 at 679-687. 105 Whichever way the matter is viewed it seems to me that the Defendant does not have a liability for the matters in particulars (b) to (e). If the Defendant has a truly vicarious liability for Mr Gamble s 3C brings about the result that it will have the same immunity as the relevant person for whom it is vicariously liable. The relevant person here (Mr Gamble) has no such liability by virtue of s 61. If the Defendant is not vicariously liable for Mr Gamble (as I am inclined to think) then it has no liability at all in respect of those particulars."

Consideration

1. Section 61 of the Civil Liability Act states that a volunteer does not incur personal civil liability in respect of any act or omission when doing community work either organised by a community organisation, or as an office holder of a community organisation. The onus is on the defendant to make out the defence.
2. Under s 60, a "community organisation" is defined to include a body corporate that organises the doing of community work by volunteers. "Community work" is further defined as work that is not done for private financial gain, and includes work done for, amongst other things, a "sporting" purpose. The defendant submitted that it is a "community organisation" for the purposes of the section because "all relevant personnel" are unpaid volunteers. Mr Nairn, in his affidavit sworn 6 March 2019, stated that the lure driver, starter, catching pen gate operator and return gate operator are not paid for performing those roles (Ex G, Tab 5, Aff Rex Nairn at [8], [10]). The defendant did not adduce evidence more generally as to whether the Club operates for private financial gain.
3. A "volunteer" is defined under s 60 to mean a person who does community work on a voluntary basis. The definition would appear to capture the plaintiff with respect to his activities in operating the gate, as well as Mr Baker in the same capacity (Ex G, Tab 6, Aff Stephen Baker at [10]).
4. However, the broader application of s 61 to this case is unworkable. Mr Baker, the person who asked the plaintiff to operate the catching pen gate, was a committee member of the Club (Ex G, Tab 6, Aff Stephen Baker at [1]). If he is considered for the purposes of s 61(b)`to be acting "as an officeholder of a community organisation", or for the purposes of s 61(a) to be doing community work "organised by a community organisation", the section might afford him protection against personal civil liability. Section 3C of the Civil Liability Act states that any of its provisions that exclude the civil liability of a person for a tort also operate to exclude the vicarious liability of another person. Thus, had this case alleged negligence on the basis of vicarious liability, the Club, as the community organisation which organised the community work, or for whom Mr Baker was an officeholder, might also have been afforded the protection of s 61: see Echin.
5. However, the plaintiff's case is not one of vicarious liability. The Club is alleged to be directly liable for its failure to adopt the plaintiff's proposed precautions against the risk of harm. The defendant has submitted that for the purposes of s 61, the Club itself the "person" doing community work. However, s 61 cannot operate such that the defendant is both the "volunteer" and the "community organisation". Section 61 therefore has no application to this case. This defence fails.

Volenti non fit injuria

1. While the defendant pleaded volenti non fit injuria, it made no submissions on the topic. Hence, it is not necessary to address it.
2. If I am wrong in relation to s 5L of the Civil Liability Act, I have made some brief comments as to liability in relation to ss 5B, 5C and 5D.

Duty of care

1. It is common ground that the defendant owed the plaintiff a duty of care whether as an invitee/entrant or a volunteer. It is well established in law that an occupier owes a general duty to take reasonable care to avoid a foreseeable risk of injury to entrants: see Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; (1987) 69 ALR 615 at 620. What is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises". I will consider foreseeability and reasonableness with respect to the alleged breach of duty below.

Breach

1. Section 5B of the Civil Liability Act sets out the necessary, but not sufficient, pre-requisites for civil liability to arise. Although headed "duty of care", it is directed toward questions of breach of duty: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [13] ("Adeels Place"). Section 5B reads: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against 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."
2. The inquiry asks what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Wyong Shire Council.

The plaintiff's submissions

1. The plaintiff submitted that the factors relevant to determining duty are common and co-extensive, regardless of whether the case is considered under the construct of a duty owed to the plaintiff as an invitee or as a volunteer: see Hrybynyuk v Mazur [2004] NSWCA 374 at [22]-[24].
2. The plaintiff characterised the risk of harm as the risk that an untrained and relatively inexperienced volunteer, operating the catching pen gate during an organised race, would be struck by the lure and suffer injury. The plaintiff considered it uncontroversial that the risk of harm was reasonably foreseeable.
3. The plaintiff submitted that the risk of harm was not insignificant in the sense that it was trivial. Given the defendant's defence that the risk was obvious and significant, the plaintiff argued the nature and scope of the defendant's duty extended to guarding against entrants, invitees and/or volunteers (such as the plaintiff) suffering injury of the nature which materialised.
4. The plaintiff said that the precautions which ought to have been taken are straightforward and reasonable, and the defendant's failure to undertake them was therefore unreasonable. The plaintiff noted that following the injury, the defendant took proper steps to modify the gate and avoid the risk to future catching pen gate operators. Although s 5C of the Civil Liability Act makes it clear that those modifications are not in themselves proof of the defendant's negligence, they are evidence that such precautions could have been achieved with relatively little expense and inconvenience.

The defendant's submissions

1. The defendant noted that the plaintiff was involved in owning, breeding, trialling and racing greyhounds since 2009. He nearly always raced his dogs every Saturday at one of the tracks at Wauchope, Taree or Kempsey (T 74.14-30).
2. The plaintiff was aware of all of the functions of the people involved in conducting a greyhound race and how the process worked (T 84.03). He was familiar with the functions required of a catching pen gate operator, and that the only thing that person had to do was leave enough space for the lure to pass after the race had finished so as to prevent the dogs continuing around the track (T 83.42-84.08, 84.29-.47, 86.06-87.22).
3. The plaintiff conceded that Mr Baker spoke to him before race four and said, "I'm going to get someone to operate the catching pen gate... Would you like to do it?" (T 76.45-50). After the plaintiff agreed, Mr Baker asked whether he could operate the gate in races five and eight. The plaintiff was a man of over 40 years of age, operating his own business and experienced in the greyhound industry, including operating the catching pen gate. The defendant argued that if the plaintiff had felt any concern about how to operate the gate, he could have raised it with Mr Baker. As it was, there simply was not much instruction required for the role (T 78.5-40).
4. The defendant noted that the plaintiff did not give any evidence about how he came to have operated the catching pen gate at trials. Presumably, on those occasions he had been instructed and/or supervised sufficiently to be able to do the task safely.
5. The only real function of the catching pen operator was to create a gap between the gate and the rail to allow the lure to pass through after the race. Collision with the lure was the only way of being injured while performing that task. If that did occur, it was likely to cause serious injury. The defendant argued that the plaintiff was aware of what was involved, so that he did not need to be instructed on the day.
6. The defendant further noted the plaintiff allowed himself to be distracted by a dog while performing the task, despite the fact that worrying about how far behind a dog might be was not in any way part of his function as catching pen gate operator. The race would have lasted between 20 and 30 seconds, and the lure would have taken an additional 10-15 seconds to travel from the finish line to the gate where the plaintiff was standing. That means the plaintiff was apparently fixated on the fallen dog, watching it cross the finish line, for that entire period without paying any attention whatsoever to the only thing upon which he had to be focused to perform his function, and which, apart from the dogs, was the only thing that could cause him injury (T 90.29-93.49).
7. The defendant argued that any duty owed to the plaintiff was necessarily limited by the expectation that the plaintiff would exercise reasonable care for his own safety: see Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; (2007) 238 ALR 761 ("Dederer") at [45]; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159]; Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [8]. The expectation that the plaintiff would exercise reasonable care goes not merely to the assessment of breach of duty, but is "a specific element contained, as a matter of law, in the scope of the duty of care": see Dederer at [45] per Gummow J.
8. Assessing whether the defendant, acting reasonably, should have taken the precaution that the plaintiff alleges prior to his injury, has to be viewed prospectively and not with hindsight: see Wyong Shire Council; Adeels Palace.
9. The effect of s 5C(b) of the Civil Liability Act is that determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome: Mobbs v Kain (2009) 54 MVR 179.
10. The defendant noted that the test is always whether the plaintiff has proved that the defendant, who is owed a duty of care, has not acted in accordance with reasonable care: see Derrick v Cheung (2001) 181 ALR 301. The fact that there were measures which could have been taken to avert or diminish the risk that materialised do not establish breach of duty: see Thornton v Sweeney [2011] NSWCA 244.
11. The defendant submitted that a plaintiff must fail in an action for negligence framed in terms of a failure to take precautions, unless the plaintiff shows that a reasonable person in the defendant's position would have taken those precautions: see Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [50].
12. The defendant argued that Mr Baker was entitled to assume that a grown man in the plaintiff's position would be competent to safely operate the catching pen gate if he had done it before, and that if he had not done it before or if he had any concern whatsoever about his ability to do it safely, that the plaintiff would either not make himself available or would ask for assistance or instruction, either from Mr Baker or someone else.
13. In any event, the defendant argued that in assessing the situation prospectively, including the very simple function to be performed by the catching pen gate operator, the short duration during which his attention was required, the Club's history of incident-free gate operation and that the configuration of gates at similar surrounding greyhound tracks was precisely the same, the defendant was not acting unreasonably in not modifying the gate prior to the plaintiff's injury. The fact that the defendant modified the gate after the incident indicates that the defendant was simply aware and safety-conscious.

(1) Foreseeability - s 5B(1)(a)

1. Section 5B(1)(a) of the Civil Liability Act states that a person is not negligent for failing to take precautions against a risk of harm unless the risk was foreseeable. A risk is foreseeable under s 5B(1)(a) if it is one of which the person knew or ought to have known.
2. As stated earlier, the relevant risk in this case was of a person suffering serious injury by being struck by the lure if standing in its path while operating the catching pen gate. Earlier in relation to the obviousness of the risk, I set out the plaintiff's evidence where he said he knew that the gate operator was to leave a gap between the end of the gate and the rail for the lure to pass through (T 90.45-47). He stated that he knew he shouldn't stand there (T 90.48-50; T 91.1-2). The plaintiff was aware of these risks because he was familiar with the operation of the gate. It is my view that for the same reasons the plaintiff was aware of the risk, the defendant Club, which facilitated numerous races over many years, also knew or ought to have known of it. I am therefore satisfied that the risk was foreseeable.

(2) Not insignificant - s 5B(1)(b)

1. Pursuant to s 5B(1)(b) of the Civil Liability Act, the plaintiff must next establish that the risk of harm was not insignificant: see Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 per Sackville AJA at [442]- [444].
2. Earlier in relation to s 5L of the Civil Liability Act, I set out my reasoning with respect to whether there was a significant risk of physical harm to the plaintiff. I stated that the lure was heavy, made of metal, and travelled at approximately 73 kilometres per hour (FASC [6]). It operated mechanically on a track and its path was certain. In operating the catching pen gate, the plaintiff was required as a central aspect of the procedure to leave space for the lure to pass so as to avoid a collision. I therefore came to the view that the likelihood that a person would suffer injury if standing in its path while operating the gate was one which had a real chance of materialising. I am therefore satisfied that the risk of harm was not insignificant.

(3) Reasonable precautions - s 5B(1)(c)

1. The next issue is whether the risk of harm is one against which a reasonable person would have taken precautions as per s 5B(1)(c) of the Civil Liability Act. In making this determination, the Court is to consider the following, amongst other relevant, considerations outlined in s 5B(2): 1. the probability that the harm would occur if care were not taken; 2. the likely seriousness of the harm; 3. the burden of taking precautions to avoid the risk of harm; and 4. the social utility of the activity that creates the risk of harm.
2. So far as reasonable precautions are concerned, the plaintiff relied upon the report of Denis Cauduro dated 1 August 2017 (Ex G(i)). In that report, Mr Cauduro stated that the defendant could have taken the following reasonable preventative measures against injury: 1. eliminating the hazard by changing the type of gate to one with a flap at the bottom inside corner, so that the gate can be closed immediately after the dogs pass it on the straight, and the lure can pass through the gate flap without the gate remaining ajar; 2. only allowing people who have been assessed as competent in the use of operating the track gates during a race meeting to operate them; and 3. providing those people with suitable information, training, instruction and supervision to ensure that they are capable of implementing, and always implement, safe techniques while operating the gate.
3. I will consider these proposed precautions in order.

Precaution (a) - gate modifications

1. In relation to precaution (a) set out above, the Court was shown DVD footage of two dog races at the Wauchope track (Ex E). The first showed a race on 8 August 2015, with the catching pen gate operating as it would have done on the date of the plaintiff's injury, prior to any modifications. The second DVD footage showed a race on 10 November 2018, after the gate was modified in the wake of the plaintiff's accident (T 125.6-17). Photographs 11 and 12 (Ex B) also depicted the modified catching pen gate at the Wauchope track.
2. The modifications that have been implemented at Wauchope track are more extensive than those recommended by Mr Cauduro set out in (a) above. The recommendation in precaution in (a) refers only to a flap, and not a standing box. A standing box has been installed at Wauchope track. I will describe it as best I can. It is a three-sided cage situated on top of a platform with four legs positioned underneath it. A person closing the catching pen gate stands in position in the cage, which is about waist height when one is standing on the platform. The open side of the box which is not caged faces the track. The back and sides of the cage protect the operator from moving into the path of the lure. However, to get into position, the operator has to make a substantial step up onto the platform, as the platform of the cage is quite high off the ground. To mount it, the operator has to step up to a distance just below hip height. There has also been installed a lure flap on the bottom corner of the gate next to the cage arrangement. The person who stands on the platform drops the lure flap by means of a lever (T 224; T 225; T 246.1).
3. The plaintiff argued that the statements of Mr Zarb (Ex F [14]) and Mr Heuston (Ex G, Tab 4 [10]) that the plaintiff's injury was "an accident waiting to happen" were evidence of the "significant risk of harm" to someone in the position of the plaintiff operating the catching pen gate. However, neither Mr Heuston, nor Mr Zarb identified any previous injury to a catching pen gate operator. The catching pen gates at the nearby Kempsey and Taree greyhound tracks do not, and never have had, a flap or cage arrangement installed.

The plaintiff's submissions

1. The modified flap and platform keeps the catching pen gate operator out of harm's way. According to the plaintiff, the modifications which were made after the accident would have been reasonable precautions to avoid the risk of harm.

The defendant's submissions

1. The defendant argued that there had never been a collision with the lure prior to the incident, and noted that comparable tracks at nearby Taree and Kempsey do not have modified flaps or cage arrangements installed. The fact that it made the modifications after the accident was simply to ensure that no such accident occurred again, but did not suggest that a reasonable person would have taken the precaution prior to the plaintiff's injury.

Consideration

1. The plaintiff bears the onus of establishing that, had the gate been altered and the standing box installed prior to his accident, then on the balance of probabilities, he would not have been injured.
2. The accident occurred at a country greyhound racetrack. Nearby Taree and Kempsey do not have either any of these proposed modifications in place. The two major metropolitan tracks in Queensland, Ipswich and Albion Park have the flap in the catching pen gate, but the operator stands on the other side of the gate, not in front like at the Wauchope track. The plaintiff provided no evidence that anyone else at any of these tracks had been injured by standing in the path of the lure.
3. Having considered all the evidence provided, it is my view that the burden of taking these steps was not necessary, because it would be most unusual for a reasonable person operating the catching pen gate to be so distracted that he would remain standing in the path of the oncoming lure. Thus, the probability that the harm would occur if the precautions were not taken was low (s 5B(2)(a)). I also agree that stepping up into the platform cage arrangement, as required to mount the modified gate, in itself could cause an accident. I note here as well that the social utility of operating the catching pen gate is that it facilitates country greyhound races to be run for the enjoyment of enthusiasts, of which the plaintiff is one (s 5B(2)(d)).
4. Hence, under the circumstances, it is my view that the plaintiff has failed to demonstrate that a reasonable person would have made the modifications in precaution (a) to avoid the risk of harm.

Precautions (b) and (c)

1. The plaintiff submitted that the defendant should have taken the precautions set out in (b) and (c) above.
2. The defendant submitted that the plaintiff already knew how to operate the gate and its potential risks. Instructing him not to stand in the path of the lure would have merely reiterated to him something he already knew.
3. So far as precautions (b) and (c) are concerned, the plaintiff had operated the catching pen gate on a number of occasions. Mr Nairn, like Mr Baker, stated that there is no formal training to perform the role and that it was very simple. Mr Nairn is not aware of any previous incidents in which any person, apart from the plaintiff, had been struck by the lure while operating the catching pen gate (Tab 5 [38]). The defendant argued that for these reasons, these precautions were not ones which a reasonable person in the defendant's position would have taken.

Consideration

1. Operating the catching pen gate is a relatively simple task. The plaintiff had already operated the catching pen gate competently on previous occasions, and gave evidence that he was aware of the risk of colliding with the lure if he stood in its path (T 90.29-T 91.14). The plaintiff has not provided any evidence that some form of further assessment, training or instruction would have lowered the probability of the harm occurring (s 5B(2)(a)), as the evidence is that the plaintiff was already aware of the procedure required of him.
2. For these reasons, it is my view that the plaintiff has failed to demonstrate that under the circumstances, a reasonable person in the position of the defendant would have taken precautions (a), (b) and (c) referred to in the report of Mr Cauduro.

Conclusion

1. Having considered the elements relevant to s 5B of the Civil Liability Act set out above, it is my view that the risk of harm of standing in the path of the lure while operating the catching pen gate was foreseeable (s 5B(1)(a)), and that that the risk of harm was significant (s 5B(1)(b)). However, for the reasons set out above, it is my view that the defendant has not demonstrated that in the circumstances, a reasonable person in the defendant's position would have taken the precautions set out in Mr Caudro's report and proposed by the plaintiff. Taking these matters into account, it is therefore my view that the defendant did not breach its duty of care owed to the plaintiff.
2. If I am wrong and the defendant breached its duty of care owed to the plaintiff, I will briefly deal with the issue of causation.

Causation

1. Section 5D of the Civil Liability Act provides: "5D General Principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability'). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
2. Section 5E of the Civil Liability Act deals with the onus of proof: "In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
3. In order to succeed, the plaintiff must show that it is more probable than not that, but for the breach, the "particular harm" which materialised would not have been suffered. This involves two elements: "factual causation" and "scope of liability": see Adeels Palace at [42]; Wallace v Kam at [12].
4. Determination of factual causation under s 5D(1)(a) is a statutory restatement of the "but for" test of causation. That determination is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace v Kam at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].
5. The determination of "scope of liability" involves a value judgment (Wallace v Kam), as does the determination of "factual causation": see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [11].
6. The requirement under s 5D(1) for the plaintiff to demonstrate "factual causation" and "scope of liability" do not include the common law concepts of material contribution or increase in risk: see Woolworths Ltd v Strong [2010] NSWCA 282 ("Woolworths") at [47]-[48]. Rather, causation requires a determination that "the negligence was a necessary condition of the harm".
7. The application of s 5D(2), an exceptional case, requires evidence: see King v Western Sydney Local Health Network [2013] NSWCA 162 per Hoeben JA at [155] It also needs to be raised on the pleadings: King per Ward JA at [222]. The plaintiff has not submitted that this is an exceptional case, nor did he adduce any evidence to support the proposition. Hence, s 5D(2) is not applicable.

The plaintiff's submissions

1. The plaintiff submitted that the injury which the plaintiff suffered has not occurred to any trained or experienced catching pen gate operator, and that installation of a flap and platform would have kept the operator out of harm's way. The plaintiff submitted that the only reasonable inference to be drawn is that but for the defendant's failure to take precautions against the harm, the plaintiff would not have suffered the injury.

The defendant's submissions

1. The defendant submitted that the plaintiff already knew how to operate the gate and of its potential risks. Instructing him not to stand in the very path of the lure would have been redundant. Moreover, the defendant noted that plaintiff was distracted by a dog that fell shortly after the race commenced. He remained fixated on that dog for the entirety of the race. The defendant argued that the Court could not be satisfied that the plaintiff would not have remained fixated on that dog in any event, irrespective of the configuration of the gate. The plaintiff knew what was involved but nevertheless kept his attention solely on one greyhound for 30 seconds.
2. With respect to the alteration of the gate, the plaintiff bears the onus of establishing that, had the gate been altered previously, then it is more probable than not that the injury would not have occurred. The defendant argued that the plaintiff failed to bring evidence that this was the case.

Conclusion

1. The plaintiff bears the onus of proving that but for the defendant's failure to take the proposed precautions set out by Mr Caudro above, the plaintiff would not have suffered the particular harm which materialised.
2. Precautions (b) and (c) concern assessing the competence of catching pen gate operators before allowing them to operate the gate, and providing them with proper information, training, instruction and supervision to complete the task. As discussed above in relation to the reasonableness of these precautions, it is my view that the plaintiff was already sufficiently aware of what was required of him to competently operate the gate. Rather, the evidence is that he became distracted from his task by a dog, and remained standing in the path of the lure despite his awareness of the risk. The plaintiff has failed to demonstrate that the plaintiff's lack of formal training or assessment were necessary conditions of the harm under s 5D(1)(a).
3. Precaution (a) set out by Mr Caudro concerned installing an apparatus which would physically remove the gate operator from harm's way. I am satisfied that had the defendant made these modifications to the gate, the plaintiff would not have suffered the harm, because (distracted or not) he would have been physically in the path of the lure. Thus, the defendant's failure to take this precaution was a necessary condition of the harm. "Factual causation" under s 5D(1)(a) is established.
4. The plaintiff also has to demonstrate that it is appropriate for the scope of the defendant's liability to extend to the harm. With respect to s 5D(1)(b), it is my view that the responsibility for the harm suffered should not be imposed on the defendant. Under the circumstances, it was unlikely that a volunteer who had prior experience operating the catching pen gate would disregard the central requirement of the task by standing in the way of the lure. Therefore, while the plaintiff has established "factual causation" under the first limb of s 5D(1)(a) with respect to the precaution of modifying the gate, he has not established "scope of liability" under the second limb of s 5D(1)(b). The plaintiff has therefore failed to prove on the balance of probabilities that the defendant's alleged negligence caused the particular harm suffered.
5. If I am wrong about breach of duty of care and causation, I will briefly consider whether the plaintiff should bear some apportionment of liability for his own contributory negligence.

Contributory negligence

1. By amended defence filed 20 March 2019, the defendant pleads that if the plaintiff suffered any injury, loss or damage as alleged or at all, that it was caused or contributed to by the plaintiff's own negligence pursuant to s 5S of the Civil Liability Act. The particulars are that the plaintiff failed to take reasonable care for his own safety, and that he assumed responsibility for a duty which he was not capable of undertaking. The defendant submitted that there should be a significant appointment for contributory negligence in the range of 75% (T 271.43).
2. Sections 5R and 5S read: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent 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. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
3. The case of Woolworths concerned a challenge on a finding of no contributory negligence. In that case, and not on the topic which was subject to appeal to the High Court, Campbell JA (with Handley AJA, Harrison J agreeing said at [38]: "It is possible for a pedestrian in a shopping mall to take reasonable care for their own safety while still paying attention to the goods on display and the other people that are around that person. By contrast, a cleaner whose task it is to look for and clean up spillages, or any other person whose specific responsibility was to look for spillages, would not reasonably be expected to have the sort of divided attention that a shopper often has."
4. In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, the High Court determined at 532-533 that with regards to contributory negligence, the just and equitable apportionment of the liability ought be examined as follows: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

The plaintiff' submissions

1. The plaintiff submitted that he was untrained and inexperienced at operating the catching pen gate during an organised race with eight dogs. As a result, his attention was divided and distracted. Had he simply been inattentive because he was looking at the pack and not the fallen dog, then he conceded that unreasonable care for his own safety would be proven. However, the plaintiff argued that his divided attention, borne of a valid distraction, does not amount to unreasonable care for his own safety.

The defendant's submissions

1. The defendant submitted that if the court rejects the statutory defences and finds in favour of the plaintiff, there should be a significant reduction for contributory negligence. If the plaintiff did not know how to operate the gate, or had any concerns about his ability to do so, he should have raised that immediately with Mr Baker, sought assistance from Mr Baker or someone else or simply refused to help.
2. The defendant argued that in comparing the relative capability the actions of the defendant and the plaintiff, and the degree to which each contributed to his injury, the plaintiff's departure from what was reasonably required far exceeded that of the defendant. Consequently, he should bear a much greater share of the liability.

Conclusion

1. I have outlined the circumstances of the accident more fully earlier in this judgment. As previously stated, I do not accept the plaintiff's submission that he was an untrained and inexperienced in operating the catching pen gate. He was an experienced operator. It was a simple task. By becoming distracted by a greyhound which had fallen behind in the race, and continuing to stand in the path of the lure, the plaintiff failed to take adequate care for his own safety. I assess his culpability for his injury and attribute contributory negligence at 50%.

Damages

1. I have addressed the issue of damages, in the event I am wrong in relation to the defendant's liability and the defendant is found to be negligent.
2. A number of heads of damages have been agreed. What have been left in dispute are non-economic loss, past and future economic loss. In relation to his claim for damages I will first consider the plaintiff's evidence concerning his loss, followed by the medical evidence.

After the accident

1. After the plaintiff was admitted to hospital, he was seen by various doctors and staff and administered with pain relief.
2. On 26 April 2015, the day after his admission, the plaintiff underwent an operation on his leg. Surgeons performed an intramedullary nailing of the left tibia, an intramedullary wiring of the left fibula, wound debridements and a skin graft on his left leg. He was in pain and discomfort both before and after the operation, despite the medication. The plaintiff had difficulty sleeping and was totally bed ridden. He needed assistance from the nursing staff to eat, use the toilet and shower.
3. On 1 May 2015, the plaintiff had a further operation in which surgeons performed a washout and debridement of the left calf. Again, he experienced pain both before and as a result of the operation. As he recovered, his leg continued to give him a significant amount of pain and discomfort.
4. During his hospitalisation, he underwent a skin graft which required skin to be removed from his leg. The procedure left scarring. In addition, the plaintiff was left with a very large and unsightly scar at the site of his fracture on his left leg. I will describe that wound in more detail later in this judgment.
5. On 9 May 2015, the plaintiff was discharged from hospital. He was given strict instructions to keep his leg elevated, and to undertake no weight-bearing activity for at least six weeks.

The plaintiff's condition on release from hospital

1. After the plaintiff left hospital, his left leg had a back slab on it. He could not use his leg and was confined to a wheelchair. The injury caused him a good deal of pain and discomfort. He was prescribed medication for pain relief, which he took. His mother went to the chemist for him when required.
2. He was advised to reattend the hospital orthopaedic review clinic for a number of appointments to check on his progress. The plaintiff attended the clinic for follow-up appointments on 12, 15 and 29 May and 2 June 2015. His mother made the necessary arrangements and drove him to hospital, as was unable to drive himself.
3. Approximately six weeks after his discharge, the plaintiff's back slab was changed to a moonboot. The plaintiff wore it for approximately one to two months. He was not referred to physiotherapy, but was instead given a home-based program of exercises to undertake. He did those exercises when to the extent that they did not cause him pain.
4. The plaintiff says that his injuries were such that he was unable to work. He had arranged for Harvey Norman to be informed of his injury after it occurred. They were advised that he could not carry out any carpet laying while he recuperated. He has not returned to work at all since the accident.

The plaintiff's ongoing medical treatment

1. After the plaintiff was discharged from hospital, he consulted his general practitioner, Dr Williams. Over a period of time he was prescribed Tramadol, Amitriptyline and Lyrica to control his pain.
2. In June 2016, the plaintiff was referred to Stephanie Bailin, a podiatrist. In September 2016, he was referred to Shane Murray, a physiotherapist, whom he saw in September and October 2016.
3. In October 2016, Dr Williams referred the plaintiff to see Associate Professor Dean Pepper, an orthopaedic surgeon, to address ongoing pain and numbness in his ankle.
4. On 15 December 2016 and 21 February 2017, the plaintiff saw Associate Professor Pepper, who made arrangements for the plaintiff to have an arthroscopy to remove a "bone nail" from his leg. On 22 March 2018, the plaintiff underwent arthroscopic surgery for that purpose.

The plaintiff's mental health following the accident

1. The plaintiff has found it difficult to cope with his injuries following his discharge from hospital.
2. He experienced nightmares about the accident which he found very upsetting and disturbing. He says that although he tried not to think about the accident because it upset him, those thoughts would frequently come into his head.
3. The plaintiff says he had simple needs and pleasures prior to the accident. They consisted largely of tending to and racing his greyhounds, as well as going fishing. Because of his injuries, the plaintiff says that he is unable to engage in either of these activities.
4. He says he has felt very depressed, and found it difficult to come to terms with the fact that he will never be able to return to his work. He says he is resentful that since his injury, the things which gave him pleasure have been taken away from him.
5. The plaintiff says that has had real anxiety about his financial situation. He had been self-reliant and financially independent since he left school, but that because his injuries have prevented him from working since the accident. He had to apply for a Centrelink benefit, which he found quite embarrassing. The amount he received from Centrelink was far less than what he had otherwise been earning, which placed him in financial difficulty. He said he had to ask friends and family if he could borrow money from them, which he also found demeaning and embarrassing.
6. The plaintiff says that he became so depressed that he contemplated suicide. He became sedentary and lost interest in doing most things. He says he spends his day mainly watching television. He becomes irritable and angry, which were not traits he normally exhibited. He clashes with his mother and brother and does not socialise anywhere near as often as he used to.
7. The plaintiff also says he has stopped wearing shorts, as he is highly embarrassed by the significant scarring to his leg.
8. The plaintiff says he felt very anxious and on edge whenever he went back to the greyhound racing track. However, if that is true, he has not let his anxiety deter him. He was able to go back to the track shortly after he was discharged from hospital.
9. While he was still in hospital, the plaintiff was interviewed by Mr David Brasch, who wrote an article entitled "Dog accident leaves leg smashed" which was published in the Port Macquarie News on Friday, 1 May 2015 (Ex 1). Mr Brasch gave evidence that he has been a greyhound writer for the past 40 or so years, and that he has also owned and bred greyhounds of his own for 40 years. He has run a greyhound magazine for the Greyhound Control Board in Queensland since 1985, and during a period of three or four years ran a magazine of his own. He has also written other publications and articles for English papers (T 221).
10. Mr Brasch met the Club president of the Wauchope greyhound track at a function in the middle of 2013, where he said that he would be willing to write some articles for local papers. He sent articles to the Port News, the Greyhound Recorder, the Wauchope Gazette and the now-defunct National Greyhound News in Victoria.
11. When Mr Brasch attended the Wauchope greyhound track, the plaintiff's accident had already occurred. He though it would be a good human interest story, particularly as the plaintiff was scheduled to have four dogs racing the following week. Mr Brasch obtained the plaintiff's mobile phone number and a few days after visiting the track and called the plaintiff for an interview. The Port Macquarie News sent a photographer to the hospital, who took the photograph of the plaintiff for the story (T 219; T 220).
12. Mr Brasch gave evidence that it was not his journalistic want, when he was covering a meeting, to inspect the lure and catching pen gate. He said that that would be something a person would do if they trained dogs, which he did not (T 222).
13. It was Mr Brasch's evidence that when he interviewed the plaintiff in hospital, the plaintiff told him the following: "He had hoped to be released today and then attend Wauchope's race meeting tomorrow in a wheelchair to watch his four dogs - Famous Shoes, Heroic Helen, Spriva Clare and Jack Knee - race. But one of the skin grafts has not taken as well as the doctors would like, he said. "At this stage it looks as though I will have another skin graft and be released next Tuesday or Wednesday." … "Mum and I share all the training duties for the dogs," he said. "Mum always handles the dogs on the racetrack so it will be business as usual on Saturday. I was hoping to be able to be there to see then race though. "Mum nominated the dogs on my behalf." "But, I was lucky. While the bones were broken, none of tendons or arteries were damages. And fortunately I have not needed any painkillers. I'm in no pain at all." "It seems I have a very high threshold of pain." Carter has regularly worked on the catching pen gate during trialling days at Wauchope but it was the first time he had done the job on an official race day."
14. I accept Mr Brasch's evidence as reliable.
15. The plaintiff has not sought any medical treatment for his depression. He says he did not know who to talk to for that kind of help. He feels embarrassed to disclose his difficulties, and says he has kept those problems to himself.
16. In July 2017, at the prompting of his solicitor, the plaintiff saw Dr Brian Parsonage, a psychiatrist.

The plaintiff's circumstances as described in 2017

1. At the time of the accident, the plaintiff had 14 dogs in training. Because of his restricted ability to walk and perform other physical activities, he found that he was unable to care for all of them. He has had to let eight of his dogs go.
2. To assist in his training of the remaining dogs, the plaintiff purchased a dog walking machine. He puts the dogs on the machine for approximately 20-30 minutes each morning and afternoon, and sits by the machine to supervise the dogs as they train.
3. The plaintiff says that since the accident, he is no longer able to attend greyhound racing meetings on his own. He needs help driving to the race track. He said that when he walks a dog from the car to the race track, the pain in his leg is such that he has to wait for a period of time before he can start to bring in the next one. Because of his pain, he said he needs someone to assist him. However, in cross examination the plaintiff admitted that he can drive to the greyhound tracks by himself.
4. The plaintiff says that he continues to have difficulty sleeping. The pain in his left ankle wakes him up during the night, and he has great difficulty falling back to sleep. He says he has been prescribed Murelax, which has helped but not entirely alleviated his difficulties sleeping.
5. He says that since the accident, he requires ongoing assistance with various day-to-day tasks such as drying his lower legs, fetching meals and drinks and getting various medications. His mother helps him with those tasks. He says he has continued relying on her for assistance preparing meals, cooking and cleaning.

The plaintiff's inability to drive

1. The plaintiff was able to resume driving in December 2015, but he was only able to drive for short periods of approximately 30 minutes. He says that he experiences significant pain and discomfort if he drives for longer periods of time.
2. The plaintiff gave the following evidence (T 69.40.50; T 70.1-36): "Q. You drive an automatic car? A. Yes. Q. And you can drive for at least 30 minutes. That's what you said in your affidavit in November? A. Yes. Q. Since then has there been any change in your driving capacity? A. Yes, I can go a little bit further. Q. For example, have you been outside the local area, driven outside the local area? A. Yes, I have. Q. Where to? A. I've gone up to Grafton. Q. Is that on just one occasion or what? A. No, twice. Q. What have you done up in Grafton? A. Raced my greyhounds up there. Q. Okay, so you drove up to Grafton on two occasions? A. That's correct. Q. Obviously with your dog trailer on the back of your vehicle? A. No, I had the dogs in the back in my station wagon. Q. Any reason for that and not in the trailer? A. Well less, less on fuel. Q. How did you manage? How far is Grafton from Port Macquarie? A. It's about a two and a half hour drive. Q. Did you drive yourself or did someone else drive, or what? A. No, I went by myself. Q. Did you drive two and a half hours nonstop? A. No. No, I drove an hour and had a, had a break for about 10-15 minutes, drove another hour, another little break, and then the rest of the way. Q. What do you feel? Why do you have to stop and have a break? A. It's like a, a throbbing, throbbing sort of pain. It doesn't matter if you move your feet, you, it's still, still there. You can't get rid of it."
3. As such, the plaintiff says he can drive for 2 to 2½ hours provided he takes a short break during the trip.

Events in 2018

1. In about February 2018, Associate Professor Pepper performed an operation on the plaintiff at Port Macquarie Base Hospital. That operation involved Associate Professor Pepper taking rods out of the plaintiff's leg and inserting a band. The plaintiff was advised by Associate Professor Pepper to have regular ongoing consultations with him.
2. The plaintiff and his mother continue to live at the property they were renting in Port Macquarie before the accident, but now live together in the granny flat. A family now occupies the main residence on the property.
3. The plaintiff said he continues to suffer from pain and restriction of movement in his left leg particularly his ankle, shin and knee. Prior to the accident, the plaintiff was able to both run and walk without difficulty. He says he can no longer do so. Due to the pain and instability in his left leg, he says that he is no longer able to carry items as easily as he once did. He also continues to receive Centrelink benefits. The plaintiff's occupation as a carpet layer required him to bend, kneel and use his knees forcefully. He says that is no longer able to do so because of his injuries. He has not returned to his former employment, and says that he is unable to carry out any other employment.
4. The plaintiff has a very unsightly and large scar to the back of his left leg which he says causes him embarrassment. Prior to the accident, he wore shorts when it was hot. He is now reluctant to wear shorts due to the appearance of his leg.
5. The plaintiff owns 10 greyhounds, six of which he trains and races. He continues to care for the remaining four, although they have been retired from racing. Prior to the accident, the plaintiff was able to care for his greyhounds without difficulty. He now requires the assistance of my mother to carry out many of the chores associated with looking after them. He relies on her to feed the greyhounds, clean their pens and perform chores associated with their daily care.
6. Prior to the accident, the plaintiff was able to care for himself without the assistance of any other person. The plaintiff still requires daily assistance from his mother in all aspects of his day to day living. The plaintiff gave evidence that in the years since the accident occurred he has done no work and his mother has to do just about everything for him (T 141.15-16). However, during cross examination I asked the plaintiff (T 113.6.-17): "HER HONOUR Q. Can I just ask you, why is it that you can't - what is it that stops you cooking? A. It's just, nothing stops me now. I can do it, but mum still does it for me. Q. Okay. Because I was thinking even if you couldn't stand on your feet, you could get a microwave meal here and there. A. Yeah, yep. Q. You agree that you could? A. Yes." The issue of the plaintiff's ability to perform tasks of daily living without the help of his mother was followed up by counsel for the defendant (T 151.16-43): "Q. Her Honour asked you some questions yesterday about whether you could cook your own meals. A. Yes. Q. I think her Honour might have suggested, well, you could put things, just put meals in a microwave, could you not? A. Yes. Q. That was the case, was it not, before your injury, that that's largely what you used to do for meals when you cooked for yourself? A. No, I cooked on, on [the] stove. Q. I want to suggest you told Ms Hughan (Tab 20 of the report, your Honour, it's page 26, section 9.1) that you told her this, that you'd never really eaten breakfast or lunch? A. That's correct. Q. So that was correct? A. Yes. Q. Remember your mother telling Ms Hughan that even as a child you didn't eat much? A. Yes. Q. I want to suggest that you told her that in the evenings you used to eat pre-prepared microwave meals, usually taking no longer than 20 minutes to heat up, and that as a result of that there was minimal dishwashing. A. That was 50% of the time, yes."
7. In February 2018, Associate Professor Pepper recommended that the plaintiff have a cortisone injection in his left ankle. The plaintiff made enquiries and learned that the cost of the injection was $350. He was unable to afford that cost, and has not had the injection. At the time of swearing of his affidavit, the plaintiff was taking two pain relievers, Tramadol twice daily and Endep daily. The plaintiff gave evidence at the hearing that he is still taking both these medications, but he would like a higher dosage because he feels the dosages are not sufficient to alleviate his pain (T 71.24-46).
8. On 7 November 2018, the plaintiff consulted Associate Professor Pepper. He told Associate Professor Pepper about his ongoing pain in his left leg, including in his knee. Associate Professor Pepper told the plaintiff that he needed another arthroscope on his knee and needed to remove the metal pins in his ankle.
9. A condition for the plaintiff to continue to receive Centrelink benefits is that he attempts to look for jobs. The plaintiff has engaged with a local employment agency (ETC) to assist in that task. He has not been referred to any appointments with any prospective employers. I infer that he has not personally applied to any job applications.

Medical evidence

1. Associate Professor Hope and Dr Maxwell, orthopaedic surgeons, provided a joint medical report dated 11 March 2019 (Ex G, Tab 24A). They were not required to give conclave evidence.
2. In the joint report, they answered the following relevant questions.

Question 2 - What are the ongoing effects of any injury sustained on 25 April 2015?

1. Based on his assessment of the plaintiff on 7 September, Dr Maxwell observed that the plaintiff could walk for up to 15 minutes. He complained of aching in his left knee when he walked, but did not complain of any clicking of the knee, or of the knee giving way. The plaintiff said he had pain in his left ankle, but had no swelling. The plaintiff is aware of his limp, but didn't realise he had one until he was told by others. He complained of numbness along the lateral border of the left foot. Dr Maxwell noted that the plaintiff's pain-related disability was subjective and could not be objectively measured. Dr Maxwell stated that the experience of pain may be related to many factors unrelated to the underlying pathology, including depression and anxiety.
2. Associate Professor Hope largely agreed with Dr Maxwell, but gave the additional opinion that the plaintiff has moderate ankle stiffness and leg weakness, and has an estimated five step maximum stair climbing limit. The plaintiff told Associate Professor Hope that he is unable to run, squat or kneel.

Question 3 - In particular, please provide you opinion and reasons as to whether the plaintiff has any of the following ongoing problems and whether they are related to the injury sustained on 25 April 2015:

(ii) soft tissue injury to the back of his left calf

1. Both experts agreed that the plaintiff had sustained tibial and fibular factures and a soft tissue injury to the back of his calf.

(iii) tibialis posterior dysfunction with arch collapse

1. Dr Maxwell did not consider that the plaintiff sustained tibialis posterior dysfunction. He advised that the plaintiff has bilateral congenital pes planus, and considered that the collapse of the arch occurred prior to the accident. Dr Maxwell stated that when he tested the plaintiff's tibialis posterior function, the tibialis posterior tendon was intact and functional.
2. Associate Professor Hope disagreed with Dr Maxwell and stated that there was clear evidence of tibialis posterior dysfunction, as indicated by the "too many toes" sign, and an inability to execute valgus hindfoot alignment on a single left calf raise. However, he did agree with Dr Maxwell that there was an element of pre-existing pes planus.

(iv) moderate post-traumatic ankle osteoarthritis

1. Dr Maxwell did not consider that the plaintiff has sustained any injury to his left ankle and that ankle osteoarthritis was not present in any of the plaintiff's CT scans in 2016.
2. Associate Professor Hope advised that his diagnosis of ankle osteoarthritis was based on the plaintiff's history of a bony injury adjacent to the ankle, the symptoms of arthritic left ankle pain and the signs of left ankle stiffness. He agreed with Dr Maxwell that the plaintiff's CT scan did not show any injury to his left ankle or ankle osteoarthritis.

Question 4 - Has the medical treatment received by the plaintiff to date been reasonable and necessary as a result of the incident on 25 April 2015?

1. Dr Maxwell advised that it would have been his practice to remove the dynamic screw to the distal fragment of the tibial facture and allow full weight bearing once the soft tissues had healed. He also stated that this would have shortened the time of union by stressing the facture and this would have had the effect of decreasing the amount of joint stiffness, muscle oedema and osteoporosis from disuse. Dr Maxwell was of the view that transverse factures heal much quicker when they are stressed, and that the best form of stress is full weight bearing.
2. Dr Maxwell also noted that the plaintiff had a certificate deeming him unfit for work. Dr Maxwell did not consider the plaintiff to be unfit for work and that the certificate was causing him difficulty in finding employment, which was affecting the plaintiff's motivation and causing his underlying depression.
3. Associate Professor Hope noted that although Dr Maxwell had raised some excellent points, he was of the belief that the treatment the plaintiff received was reasonable and necessary.

Question 5 - Does the plaintiff require future treatment as a result of the incident on 25 April 2015? If so, please identify the type of treatment and its cost

1. Dr Maxwell noted that all hardware had now been removed, and advised that he did not consider that the plaintiff required further treatment. He stated that he saw no indication for an arthrodesis in the absence of any osteoarthritis in the left ankle joint. Since it had been four years since the accident, he did not consider that the plaintiff required opioid analgesics. The plaintiff showed no evidence either clinically or radiologically of subtalar arthritis, so fusion surgery was not necessary.
2. Associate Professor Hope agreed with Dr Maxwell's position with respect to the opioid analgesics, but believed the plaintiff had a significant hindfoot arthritic change with resultant mechanical misalignment that would best be addressed surgically with the fusion of the relevant joint. If this surgery was required, it should be performed by a dedicated orthopaedic foot and ankle surgeon, and would cost approximately $20,000.

Question 6 - Specifically, please provide your opinion and reasons as to whether the plaintiff will require a left ankle fusion at any stage and, if so why, when and give a detailed costing of that procedure

1. Dr Maxwell advised that in line with his response for question 5, he found no radiological evidence that the plaintiff would require a left ankle fusion or a subtalar or triple arthrodesis.
2. Associate Professor Hope advised that an ankle fusion (or triple arthrodesis) is required on the basis of the clinical diagnosis of ankle osteoarthritis with hindfoot misalignment, the cost of which is approximately $20,000.

Question 7 - Has the plaintiff had any physical limitation or restrictions likely to have impaired his ability to undertake domestic household activities as a result of the incident on 25 April 2015? If so, please identify such limitations and restrictions, the type of activities likely to have been impaired and for what periods?

1. Both experts agreed that the plaintiff was not physically limited or restricted from performing domestic and household activities.

Question 8 - Has the plaintiff been left with any incapacity for work as a result of any injuries sustained on 25 April 2015? If so, for what type of activities?

1. Dr Maxwell is of the opinion that the plaintiff can work as carpet layer without restrictions and would be able to perform both sedentary and non-sedentary jobs. Dr Maxwell noted that the plaintiff had previously held a security license, and that the occupational therapist's report clearly showed a photograph of the plaintiff squatting.
2. Associate Professor Hope believed that it is impossible for the plaintiff to return to carpet laying as the plaintiff had described his inability to squat, kneel and lift. The plaintiff could perform duties that required no squatting, no kneeling and only lifting under five kilograms. He agreed with Dr Maxwell that the plaintiff should be encouraged to seek some sort of employment.

Further operation

1. On 22 November 2018, Associate Professor Pepper, orthopaedic surgeon, performed an arthroscopy of the plaintiff's left knee and removed the endobutton on his left ankle (Ex H, operation report).

Credibility

1. As stated earlier, a number of heads of damages have been agreed. What is left in dispute is non-economic loss, as well as past and future economic loss.
2. Before I assess these heads of damages, it is appropriate that I record my findings in relation to the plaintiff's credibility. I carefully observed the plaintiff while he was giving evidence and being cross examined. Earlier in this judgment, I set out the inconsistencies in the plaintiff's evidence about whether he had previously operated the catching pen gate. He stated that he had not operated the gate before on a race day, but then conceded that he told journalist David Brasch that he had "regularly worked on the catching pen gate during trial days" (T 90.11-17). He clarified under cross examination that he had "probably done it about four times in my life" (T 89.38). Ultimately he conceded that operating the catching pen gate on trial days was precisely the same as on race day (T 85.17), with no material difference between the procedure required of him (T 77.39-78.06).
3. In his affidavit, the plaintiff deposed that after the accident, he was anxious about attending the greyhound races and could not drive to them. I accept he may have been anxious at first, but he managed to largely overcome that anxiety as was able to attend a greyhound race meeting shortly after he was discharged from hospital, and has since been able to attend greyhound meetings and drive to the races by himself on a regular basis.
4. The plaintiff was certain that he could not undertake any employment, but his opinion does not accord with the medical and rehabilitation evidence. Dr Maxwell is of the opinion that the plaintiff can work as a carpet layer without restrictions, and would be able to perform both sedentary and non-sedentary jobs. Associate Professor Hope said that it is impossible for the plaintiff to return to carpet laying, based off the plaintiff's self-professed inability to squat, kneel and lift. However, Associate Professor Hope said that the plaintiff could perform duties that required no squatting and kneeling, and lifting under five kilograms.
5. The plaintiff's evidence has left me, reluctantly, with the overall impression that he was exaggerating his disabilities and portraying himself as being more incapacitated than he really is. I bear that impression in mind when I assess the plaintiff's damages.

Non-economic loss

1. The plaintiff claims non-economic loss at 50% of a most extreme case, which equates to $317,500. The defendant submitted that the plaintiff's non-economic loss should be assessed at between 20% and 30% of a most extreme case. The defendant further submitted that in all the circumstances, factoring in doubts concerning the real extent of any past and ongoing pain, restriction and incapacity, the plaintiff's condition should be assessed at 25% of a most extreme case.

Consideration

1. The plaintiff is currently 47 years of age. As a result of the accident, the plaintiff sustained tibial and fibula factures to his left leg and a soft tissue injury to the back of his left calf. He has had to undergo a number of operations on his left ankle. There is a possibility that he will need to undergo a further fusion surgery. In addition to the pain he experienced after the surgeries in hospital, he suffers from ongoing pain in his ankle and leg. Since the accident, he has continued to take painkillers every day.
2. In addition to his pain, he had been left with significant scarring to his left leg. I inspected the plaintiff's leg and the scarring is deep, obvious and unsightly. Medically, the scar has been described as follows.

Scarring

1. Ms Anna Hughan, an occupational therapist, described the plaintiff's scar presentation in her report dated 24 August 2017 (Ex G(i) p 237) as follows: "Mr Carter's calf scar … was assessed using the parameters of the Manchester Scar Scale (excluding the visual analogue component). I would describe Mr Carter's scar as obviously mismatched in colour, shiny, indented, hard in texture, indistinct margins, greater than 5cm and single in number resulting in an overall score of 17 out of 21. Based on the length of time since the injury, the scar is likely to now be mature, and therapeutic intervention is not indicated. However, it was noted to be dry and cracked in places and he would benefit from education and ongoing moisturisation to maintain oil balance and ensure optimal mobility. …"
2. Dr Hopcroft, an orthopaedic surgeon, describes the scarring in his report dated 8 September 2015 (Ex G(i) p 81) as follows: "He has gross scarring of the skin of his left leg, both from the skin harvesting site of his proximal calf, and a very large 10cm diameter round area where split skin grafting has partially taken, with the rest of the healing by secondary fibrosis, with that area adherent to the deep tissue musculature, with some altered sensation, both of the graft site and distal to it. He has multiple scarring on the front of his left tibia, one of the sites of intramedullary rod insertion in the patella, scars for the application of the cross screws, and a scar on his lower shin."
3. Finally, Associate Professor Hope described the scarring on the plaintiff's left leg in his report dated 9 January 2018 as containing an anterior knee healed 10cm keloid scar, a 2.5cm keloid medial titial scar, and a 12 x 10 cm posterior skin graft with soft tissue defect. This scarring is a significant factor in assessing non-economic loss.
4. After the accident, the plaintiff was confined to a wheelchair for three months and then to three further months of crutches (T 143.31-36). I accept that he has to rely on his mother for some domestic assistance, but he is not as incapacitated as he portrayed himself in his statement. The plaintiff says he is upset and holds a strong view that he cannot undertake any employment and is no longer financially independent. He became depressed, and has had thoughts of suicide, although I note that these thoughts have seemingly abated and that he is prepared to consult a psychiatrist. He is capable of cooking a meal, and is independent with his personal hygiene and general tasks of everyday living. I accept that he cannot perform some domestic tasks that involve heavy work, both immediately after his accident and into the future. I note that the allowances for past and future care have been agreed.
5. Prior to the accident, he had two hobbies, fishing and attending the greyhound races. While he says that he can no longer go fishing, he has still been able to maintain his interest in the greyhound races, which he attends on a regular basis. He can drive, albeit he must stop occasionally to rest his left leg. He is capable of some form of employment, although perhaps not his previous trade of carpet laying.
6. Taking all of the above into account, had the plaintiff been successful on liability, I would have assessed his non-economic loss at 30% of a most extreme case. This equates to $146,000.

Past and future out of pocket expenses

1. Past of pocket expenses have been agreed at $5,000.

Future out of pocket expenses

1. The parties have agreed that future out of pocket expenses are $40,000.

Future operation

1. The parties have also agreed that should the plaintiff be required to undergo an ankle fusion surgery on his left ankle, it will cost $20,000. Dr Maxwell in his report dated 7 September 2017 did not consider that the plaintiff needed any future treatment. It is possible that the plaintiff will need an ankle fusion. Associate Professor Hope gave the opinion that an ankle fusion is required, on the basis of the clinical diagnosis of ankle osteoarthritis with hind foot misalignment. He estimated that the costs of the surgery would be $20,000. To allow for the possibility that the plaintiff will have to undergo an ankle fusion, I allow the sum of $9,000.

Past loss of earning capacity

1. Section 12 of the Civil Liability Act provides for damages for past or future economic loss. It reads: "12 Damages for past or future economic loss - maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. …"
2. The parties have agreed that if the plaintiff had been totally incapacitated since the accident, he would be arithmetically entitled to the amount of $144,000 for past economic loss (my emphasis). However, the defendant submitted that the plaintiff has not been totally incapacitated since the date of the accident.
3. At the time of the injury the plaintiff was employed as contract carpet layer, earning approximately $750 net per week.

The plaintiff's submissions

1. The plaintiff submitted that there cannot be any issue that since the accident, the plaintiff has been unfit to perform his carpet laying duties, and will remain unfit for the balance of his working life. The plaintiff has limited education, has no technical training, poor English language skills and extremely limited transferable skills. Given his circumstances, the plaintiff's ability to earn on the open labour market has been severely diminished as a result of his disabilities arising from the injury.
2. The onus is on the defendant to prove that the plaintiff can exploit any residual "working", as opposed to earning, capacity: see South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72]-[76].
3. The defendant has adduced no evidence to establish that there are any jobs open to the plaintiff which could accommodate her needs. In Nominal Defendant v Livaja [2011] NSWCA 121, Basten JA stated at [65]: "[65] There are distinctions to be drawn between injury and impairment or disability consequent upon injury, and between impairment or disability and diminished earning capacity. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation."
4. In this case, the most likely future circumstances are that but for injury, the plaintiff would have continued working as a carpet layer earning $750 net per week, with regular rises from the date of injury to reflect average wage increases for males in New South Wales, for the balance of his working life. He has some residual capacity for work at $200 net per week.
5. The plaintiff argued that the most likely future circumstances now are that the plaintiff will remain unemployed for the balance of his working life as a result of his injuries and disabilities.

The joint report dated 5 March 2019

1. On 5 March 2019, psychologist Mr Kieran Fraser and physiotherapists Ms Annie Hartley and Ms Gillian Stewart held a conclave and prepared a joint report.
2. Ms Stewart is of the opinion that the plaintiff can perform sedentary and selected light roles with the task to be performed at optimal height, for example, between knee and chest height. She stated that the plaintiff's weight bearing tasks, walking and driving should be limited to short periods only, with driving and walking not to exceed more than 30 minutes per trip.
3. Ms Hartley and Mr Fraser agreed that given his current skills, qualifications and work history, the plaintiff would be suitable for unskilled or semi-skilled roles that involve clear, simple tasks.
4. Mr Fraser did not recommend that the plaintiff perform administrative roles as the plaintiff has limited computer skills, no Microsoft Office skills and only basic typing skills. Mr Fraser was of the view that while the plaintiff could theoretically perform administrative tasks with his physical limitations, his skills and qualifications were such that he would find it difficult to competitively enter the job market within the new few years.
5. The experts agreed that the plaintiff could perform work in the following roles: as a surveillance monitor, ticket seller, car park attendant, product assembler, process worker, and sales assistant in selected roles.
6. All experts agreed that they were unable to comment in full on the accessibility or availability of such work in the Port Macquarie area, as this would require a Labour Market Analysis.
7. Mr Fraser provided some anecdotal observations and noted that Port Macquarie is a heavily tourism-based economy that has industrial, retail and medical/health sectors, but stated he was unable to provide any more specific comments beyond.
8. All experts agreed that due to Ms Stewart's recommended driving limitations, the plaintiff was unable to access the nearby towns of Taree and Coffs Harbour for work. They agreed that given the difficulty he may encounter in sourcing work due to his physical limitations, current skills, and four-year period of unemployment, the plaintiff would benefit from occupational rehabilitation and support in his return to work.

Consideration

1. The plaintiff is certain that he cannot undertake any employment, but that view does not accord with the medical and rehabilitation evidence. As previously stated, Dr Maxwell is of the opinion that the plaintiff can work as a carpet layer without restrictions and would be able to perform both sedentary and non-sedentary jobs. Associate Professor Hope stated that it is impossible for the plaintiff to return to carpet laying, as he had described his inability to squat, kneel and lift. However, the plaintiff could perform duties that required no squatting, no kneeling and lifting under five kilograms. I accept and prefer the opinion of Associate Professor Hope to that of Dr Maxwell as it accords more with the physiotherapists' and psychologists' joint report.
2. I accept that due to the injuries he suffered to his left leg, the plaintiff is no longer able to work as a carpet layer. Had he not suffered the injuries to his left leg, I am satisfied on the balance of probabilities that he would have continued in his business as a carpet layer until he retired. I also accept that throughout his life he has largely been employed in manual work.
3. After the accident, he was confined to a wheelchair for three months and then to crutches for a further three months (T 143.31-36). I accept that the plaintiff was totally unfit for work during this period. He could not drive for 12 months after the accident.
4. There is no evidence that the plaintiff has make a conscious attempt to find work, because he says that his general practitioner told him he was unfit to return to work. As he explained (T 135.26): "Q. Do you seriously believe that? That is, that it's up to your doctor to tell you whether or not you might be able to do [a] thing? A. Well, you need a certificate to return back to work."
5. While the plaintiff says that he feels frustrated because he is not the type of person to do nothing, he actually has not attempted any work at all after he sustained the injury. With regards to the joint experts' recommendations, the plaintiff does not think that he can work as an alarm security or surveillance monitor, on the basis that those roles involve getting in and out of the car all of the time and walking around. He says he has done that sort of work before. He says that he cannot walk around for any longer than 40 minutes. He also says he cannot be employed as a ticket seller. He says that he also did that type of work before, and it involves a lot of sitting down and nowhere to stand up. He says cannot be a car park attendant, as he would have to walk around. He has also done that work before, albeit about 20-25 years ago.
6. When giving evidence, the plaintiff confirmed that ticket selling is also a component of security guard work. Counsel for the defendant asked the plaintiff to assume that the role was not part of security work, but just a role selling tickets, making reservations for services such as travel, admission to sporting and entertainment venues, perhaps in a call centre. When asked whether he might be capable of that sort of work, the plaintiff answered that he did not believe that he could do it because it is still all sitting down. The plaintiff said that he would not be able to do work that involved receiving customers' request and accepting payments and collecting fares. With regards to work in traffic control, the plaintiff expressed concerns that he would be incapable because "the stop and go blokes don't sit down. They are controlling the traffic" (T 138.36-50; T 139.1-32).
7. I take into account that the Port Macquarie area is a heavily tourism-based economy that has industrial, retail and medical/health sectors. I also take into account that for many years the plaintiff ran his own business.
8. The only thing the plaintiff says he knows how to do on a computer is "nominate his dogs". He also says that he registered for TAFE courses last year in an attempt to improve his computer skills, but they were too full and he could not enrol (T 141.30-35). He has not currently applied for a computer course because he does not have the money to pay for it (T 142.6-7). It is my view that the plaintiff is able to acquire basic computer skills, provided he undergoes suitable training in this area.
9. Later in cross examination, the plaintiff said that he had applied for warehouse jobs but admitted that he did not tell the physiotherapists and the occupational therapists about those applications when they he asked about his working capacity. He said he has told no one (T 133). Overall, his position is that he believes he cannot do any work at all.
10. Prior to the accident, the plaintiff was earning approximately $750 net per week. It is my view the plaintiff was totally incapacitated for 12 months after the accident. After that, he has had a residual earning capacity of $200 net per week. The plaintiff's past loss of earning capacity is calculated as follows: 1. From 25 April 2015 to 30 June 2015: 10 weeks at $690/week = $6,900; 2. From 30 June 2015 to 25 April 2016: 42 weeks at $703/week = $29,526; 3. From 26 April 2016 to 30 June 2016: 5 weeks at $503/week = $2,515; 4. 1 July 2016 to 30 June 2017: 52 weeks at $517/week = $26,884; 5. 1 July 2017 to 30 June 2018: 52 weeks at $531/week = $27,612; and 6. 1 July 2018 to 30 June 2019: 52 weeks at $550/week = $28,600.
11. These calculations of past loss of earning capacity are to be checked by the parties.

Future loss of earning capacity

1. The parties have agreed that if the plaintiff is totally incapacitated from working, future economic loss is to be calculated at $750 net per week. 750 x 666.4 x 85% = $424,830. In final oral submissions, counsel for the plaintiff conceded that the plaintiff has some residual earning capacity in the order of $20 per hour and no more than 10 hours per week (T 298.1-2).
2. For the reasons given under past loss of earning capacity, the plaintiff's future loss of earning capacity is $750 per week less $200 residual earning capacity. This equates to $550 net per week. $550 x 666.4 x 85% = $311,542.
3. These calculations of future loss of earning capacity are also to be checked by the parties.

Past and future superannuation

1. It is agreed that as the plaintiff was a contractor, he is not entitled to either past or future superannuation.

Past domestic care and assistance

1. The parties have agreed on past domestic care and assistance in the sum of $30,000.

Future domestic care and assistance

1. The parties have agreed on future domestic care and assistance in the sum of $50,000.

Result

1. The result is that the plaintiff's claim on liability fails. There is judgment for the defendant.

Costs Costs are discretionary. Costs follow the event. The plaintiff has been unsuccessful in his claim. The plaintiff is to pay the defendant's costs.

The Court orders: (1) I enter judgment for the defendant. (2) The plaintiff is to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2019