Carter v Hastings River Greyhound Racing Club

Carter v Hastings River Greyhound Racing Club - [2019] NSWSC 780 - NSWSC 2019 case summary — Zoe

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

[8]

Background

The plaintiff was born in 1971 and is the second eldest of four children. He is currently 47 years of age.
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.
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".
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.
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.
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.
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.
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.
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.
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".
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.
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.
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.

[11]

The injury

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]).
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.
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."

[16]

The day of the accident

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.
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.
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.
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.
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.
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.
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).
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.
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.

[19]

Whether the risk of harm was "obvious"

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. …"
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.
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").
"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.
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.
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.
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.
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).
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."
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.
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.
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.
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.

[21]

The defendant's submissions

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.
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".
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."
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."
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).

[22]

The plaintiff's submissions

The plaintiff submitted that operating the catching pen gate falls outside of the definition of "recreational activity" in s 5K.
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].
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].
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".
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.
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.
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."
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".
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.
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.
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.

[23]

Consideration

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."
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.
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.
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."
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).
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.
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.
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."
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.
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.

[25]

The defendant's submissions

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].
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].
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.
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]).
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.
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.
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.

[27]

Consideration

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])."
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].
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])."
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.
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.
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.
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.
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.
Despite the application of s 5L, I will for completeness consider the remaining aspects of the plaintiff's claim in negligence.
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."
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.

[28]

Intoxication

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."
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].
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.
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.
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].
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.

[33]

The plaintiff's submissions

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."

[34]

Consideration

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.
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.
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]).
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.
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.

[39]

The defendant's submissions

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).
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).
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).
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.
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.
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).
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.
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.
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.
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.
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].
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.
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.

[43]

Precaution (a) - gate modifications

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.
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).
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.

[50]

Causation

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.
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."
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].
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].
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].
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".
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.

[53]

Conclusion

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.
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).
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.
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.
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.

[54]

Contributory negligence

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).
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."
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."
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."

[62]

The plaintiff's mental health following the accident

The plaintiff has found it difficult to cope with his injuries following his discharge from hospital.
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.
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.
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.
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.
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.
The plaintiff also says he has stopped wearing shorts, as he is highly embarrassed by the significant scarring to his leg.
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.
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).
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.
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).
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).
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."
I accept Mr Brasch's evidence as reliable.
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.
In July 2017, at the prompting of his solicitor, the plaintiff saw Dr Brian Parsonage, a psychiatrist.

[65]

Events in 2018

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.
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.
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.
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.
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.
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."
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).
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.
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.

[78]

Credibility

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.
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).
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.
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.
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.

[81]

Scarring

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. …"
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."
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.
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.
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.
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.

[86]

The plaintiff's submissions

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.
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].
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."
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.
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.

[87]

The joint report dated 5 March 2019

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.
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.
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.
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.
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.
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.
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.
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.

[88]

Consideration

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.
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.
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.
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."
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.
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).
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.
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.
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.
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.
These calculations of past loss of earning capacity are to be checked by the parties.

At a glance

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Judgment (96 paragraphs)

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Cases Cited (46)

Cited By (3)