(2015) 324 ALR 355
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
[2017] HCA 54
Fallas v Mourlas (2006) 65 NSWLR 418
[2006] NSWCA 32
Goode v Angland (2017) 96 NSWLR 503
[2017] NSWCA 311
Hrybynyuk v Mazur [2004] NSWCA 374
Source
Original judgment source is linked above.
Catchwords
(2015) 324 ALR 355
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27[2017] HCA 54
Fallas v Mourlas (2006) 65 NSWLR 418[2006] NSWCA 32
Goode v Angland (2017) 96 NSWLR 503[2017] NSWCA 311
Hrybynyuk v Mazur [2004] NSWCA 374[2013] NSWCA 361
Paul v Cooke (2013) 85 NSWLR 167[2013] NSWCA 311
QBE Workers Compensation (NSW) Ltd v Dolan (2004) 62 NSWLR 42[2004] NSWCA 458
Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152
The Queen v A2The Queen v MagennisThe Queen v Vaziri [2019] HCA 35
Judgment (13 paragraphs)
[1]
Background Facts
The background facts are largely uncontroversial.
From about 2009 the appellant was involved in greyhound racing as a hobby. As at 2015 he owned and trained 8 to 10 dogs which he entered in local race meetings and in trials, including those conducted by the Club. Some description of how a greyhound race meeting is conducted was given in affidavit form by the president of the Club, Mr Rex Nairn (as well as by the appellant and other witnesses). Mr Nairn was not called to give oral evidence and no challenge was made to the description he gave. There are, however, some gaps in the description, which have to be filled by inference.
The following is largely drawn from Mr Nairn's affidavits.
Four persons, each of whom performs a different function, are required to operate greyhound race meetings. They are (i) a starter; (ii) a lure driver; (iii) a "catching pen gate operator"; and (iv) a return gate operator.
In the case of race meetings conducted by the Club those functions are all performed by volunteers who receive no remuneration (other than, in the case of the starter and lure driver, reimbursement for some expenses).
The task of the lure driver is to control a mechanical device ("lure") which is constructed of a fabric covered rubber sponge and a tail, affixed to a metal bar that is, in turn, screwed into a metal carriage that propels the lure around the inside rail of the track on which the dogs race. It is powered by a petrol motor. The lure runs along rollers and through pulleys positioned at intervals less than a metre from the inside rail. It is controlled by the lure driver (referred to by Mr Nairn also as "the hare driver"). It travels at approximately 73 kilometres per hour. The dogs chase the lure.
A "catching pen gate" is located near the start of the back straight. It is about 7.5 metres wide, 1.2 metres high and is attached by hinges and a metal cable parallel to the outer fence of the racing track, leaving the racing track unobstructed. At the start of and throughout the race, the catching pen gate is left open, forming part of the outer fence.
The purpose of the gate is to catch the greyhounds after a race is complete and "quarantine" them in a catching pen. This prevents them continuing to chase the lure. After the lure and the dogs have passed the finish line, and the lure has passed the catching pen gate, the catching pen gate is closed across the track to prevent the dogs continuing to run, thus causing them to enter the catching pen.
When the gate is in the "closed" position it runs at right angles to the outer fence and blocks the racing track. It is manually manoeuvred from the open to the closed position. That manoeuvre is the task of the catching pen gate operator.
On 25 April 2015 (Anzac Day) a race meeting was taking place at the Wauchope track. The appellant was present with three of his dogs which were entered in separate races. Prior to the start of the fourth race the catching pen gate was operated by Mr Stephen Baker, a member of the Club committee. Mr Baker had to leave for personal reasons, and encountered the appellant. He asked the appellant to operate the catching pen gate for races 5 and 8, which the appellant agreed to do. He had never previously operated the catching pen gate for a race, although he had done so for trials. He was given no instruction in its operation. He said that he agreed to operate the gate "as a gesture of goodwill" and to "help out" the Club.
Race 5 commenced. The appellant moved the gate across the race track to the partially closed position, leaving space for the lure to travel through. He watched the race. One dog fell, but (apparently) recovered and continued to run, although well behind the others. The appellant maintained observation on that dog, while aware that the other dogs were running around the track, and that the fallen dog was losing ground. The main body of dogs passed the finishing line, still in pursuit of the lure.
While the appellant's attention was distracted by the dog that had fallen he was struck in the left leg by the lure. As the lure was on a track it is plain that the appellant was standing in its path. He was knocked off his feet, his lower leg and foot pinned under the bottom of the gate. An ambulance attended, the appellant was taken to hospital and underwent surgery. Given the issues in the appeal, it is unnecessary to go further into the detail of his injury.
[2]
The appellant's claim
The appellant pleaded that, as occupiers of the premises, the Club owed him a duty to take reasonable care to avoid a risk of injury to him as an entrant or as a volunteer, and that that duty covered the "static condition" and the activities being carried out on the premises. So much was not in issue.
The appellant's case, as expressed in an Amended Statement of Claim in the language of the CLA, was that the injury that he suffered was reasonably foreseeable and could have been prevented by the exercise of reasonable care. He specifically pleaded three precautions (one of which was the provision to him of adequate training and instruction) that he claimed could have been taken by the Club in order to avoid the injury that he suffered. These are more fully set out at [118] below.
[3]
The defence
By way of defence the Club denied the allegations of negligence. It pleaded the common law defence of volenti non fit injuria and invoked a number of specific provisions of the CLA. It pleaded, pursuant to s 5B thereof, that it had taken the precautions that a reasonable person in its position would have taken. It pleaded that the appellant's claim did not meet the causation requirements stated in s 5D in that any negligence on its part was not a necessary condition of the harm suffered by the appellant, and that it was not appropriate for the scope of its liability to extend to that harm.
The Club further pleaded:
1. that the risk of injury was an obvious risk within the meaning of s 5F of the CLA, and that, therefore, pursuant to s 5G, the appellant was presumed to have been aware of the risk, and that, pursuant to s 5H, it had no duty to warn the appellant of the risk (the appellant had not pleaded failure to warn as a particular of negligence);
2. that the injury was a result of the materialisation of an obvious risk of a dangerous recreational activity in which the appellant engaged and that, pursuant to s 5L of the CLA, it was not liable in negligence for the harm suffered by him;
3. that the appellant was, at the time of the injury, intoxicated, and that, therefore, s 50 of the CLA precluded an award of damages;
4. that, if the appellant suffered any injury for which the Club had or may have had liability, that injury was caused or contributed to by the appellant's own negligence, to the extent that, pursuant to s 5S of the CLA, no award of damages would result.
Although it was not pleaded, on the hearing the Club also invoked Pt 9 of the CLA, which deals with the liability (as potential defendants) of volunteers. The Club submitted that, as a community organisation, it was entitled to the protection afforded to volunteers by ss 60 and 61.
The onus of establishing any of the defences pleaded rested on the Club: Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 at [24] and [123]; Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 at [41]
[4]
The primary judgment
The primary judge noted (at [145]) that no submissions had been directed to the common law defence of volenti non fit injuria and that it was not necessary to address that pleading.
Appropriately, (in accordance with authority) her Honour dealt first with the defences that could have afforded a complete answer to the appellant's claim: Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [54]-[57]; Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [185]; Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 at [39].
The primary judge rejected the defence of intoxication (at [133]) and the defence under Pt 9 of the CLA (at [144]).
For the purposes of ss 5B, 5F and 5L of the CLA the primary judge identified the relevant risk of harm as:
"… serious injury [to the plaintiff] from being struck by the lure if standing in its path during a greyhound race." (at [56]).
She held that that risk was "an obvious risk" (at [67]).
She found that, in operating the catching pen gate, the appellant was engaged in a dangerous recreational activity and thus that his injury resulted from the materialisation of an obvious risk of that activity. Accordingly, she upheld the defence under s 5L of the CLA (at [117]).
That finding was sufficient to dispose of the proceedings. Nevertheless, her Honour considered, on a contingent basis, the remaining issues.
She found, for the purposes of s 5B of the CLA (uncontroversially) that the Club owed the appellant a duty of care and that the risk of injury was foreseeable (at [168]) and not insignificant (at [170]) but (more controversially) that the appellant had failed to demonstrate any breach of duty.
Although, for the purposes of s 5D(1)(a) of the CLA, she found that the appellant had proved "factual causation", the primary judge also found that he had failed to prove that it was appropriate for the scope of the Club's liability to extend to the harm caused (s 5D(1)(b)) (at [203]). She accordingly found that the appellant had failed to establish that the Club should be held liable for his injury.
For the purposes of s 5R of the CLA (contributory negligence) the primary judge determined that the appellant bore 50% of the responsibility for his injury (at [212]).
Finally, her Honour assessed those heads of damage that had not been agreed.
[5]
The Notice of Appeal
By his Notice of Appeal the appellant challenges:
1. the finding that, in operating the catching pen gate, he engaged in a dangerous recreational activity (grounds 1-4);
2. the finding that he had failed to establish that the Club had breached the duty of care it owed to him (grounds 5-8);
3. the finding, pursuant to s 5D(1)(b) of the CLA that, notwithstanding that factual causation had been proved, the Club was not to be held responsible for the appellant's injuries (grounds 9-11); and
4. the apportionment of contributory negligence at 50% (grounds 12, 13).
The issues for determination are, therefore, those that arise under s 5B, s 5D, s 5K, s 5L and s 5R of the CLA.
There being no Notice of Contention, it is unnecessary further to consider the issues of intoxication and the defence applicable to volunteers. Nor is there any issue about the quantification of damages.
[6]
Grounds 1-4: CLA, s 5L - materialisation of an obvious risk of a dangerous recreational activity
Section 5L provides a complete defence where the injury the subject of the claim results from "the materialisation of an obvious risk of a dangerous recreational activity". It is convenient to set out the complete terms of s 5L:
"5L No liability for harm suffered from obvious risks of dangerous recreational activities
(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk."
Section 5L has been described as "a liability-defeating rule": Goode at [185] citing J Goudkamp, Tort Law Defences (Hart Publishing, 2013, Oxford) at 2. In Fallas v Mourlas (at [10]) Ipp JA commented on the complexities that arise in the application of s 5L, when regard is had to the definitions of the terms used.
A number of the terms used in s 5L called for explanation:
"recreational activity" is defined inclusively in s 5K as:
"(a) any sport (whether or not the sport is an organised activity), and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure".
It is worth noting that the sole purpose of the definition of "recreational activity" is to explain that term as it is used in Div 5 of Pt 1A of the CLA (in which s 5L appears). Part 1A is concerned with "Negligence". Division 5 is concerned with "Recreational activities".
"dangerous recreational activity" is defined in s 5K as:
"a recreational activity that involves a significant risk of physical harm".
"obvious risk" is also defined in s 5K, by the adoption of the meaning given to that phrase in s 5F, which provides:
"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".
The primary judge, correctly, observed (at [98]) that, in order to make out a defence under s 5L, a defendant must establish:
1. that the plaintiff engaged in a "recreational activity" [within at least one of the three limbs of the s 5K definition];
2. that that activity carried an "obvious risk" of harm, [as defined in s 5F];
3. that the harm suffered by the plaintiff resulted from the materialisation of that risk; and
4. that the "recreational activity" was dangerous, in the sense that it involved a significant risk of physical harm, within the s 5K definition.
[7]
(a) recreational activity
The starting point in the consideration of a defence raised under s 5L is to identify the "activity" which is said to be a "recreational activity" within one or more of the three limbs of s 5K. Although it might appear, in this case, that the relevant activity was greyhound racing, the parties were united in identifying the relevant activity as:
"… the operation of the catching pen gate".
The question that thus arose was whether that activity was:
1. a "sport"; or
2. a "pursuit or activity engaged in for enjoyment, relaxation or leisure"; or
3. a "pursuit or activity engaged in at a place … where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure".
The primary judge held that the operation of the gate was not a sport, but that it was a "pursuit or activity in which the appellant engaged for enjoyment, relaxation or leisure" within par (b) (at [91]) and, in any event, took place at a location within par (c) (at [96]). In [91] she explained her conclusion with respect to par (b):
"…. 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 goodwill' 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) [of s 5K]."
The appellant challenges that conclusion. He argued that, in the passage extracted, the primary judge erred:
"…. by conflating the broader recreational activity of greyhound racing (which the appellant undoubtedly did as a hobby and for personal enjoyment) with the relevant alleged recreational activity - operating the catching pen gate."
He argued that the fact that a volunteer might gain some sense of satisfaction or enjoyment in undertaking the particular recreational activity "is beside the point", that any such sense of satisfaction or enjoyment was a "by-product", and that there was no evidence that the appellant undertook the operation of the gate for enjoyment, relaxation or leisure.
In my opinion there is substance in the appellant's contention in this respect. There was nothing in the appellant's evidence that supported the proposition that he engaged in the activity of operating the catching pen gate (as distinct from attending and participating in the greyhound race meeting) for "enjoyment, relaxation, or leisure". Rather, he was prevailed upon to undertake a task with which he was not familiar and which, so far as the evidence goes, afforded him no satisfaction but was a distraction from the purpose for which he had attended the meeting.
The goal of the activity undertaken is relevant to determining whether the activity is or is not a recreational activity (at least within par (b) of the definition): Belna Pty Ltd v Irwin [2009] NSWCA 46; Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [103]; Goode at [203]. The stated "goal" of the appellant in acceding to Mr Baker's request was to assist in the conduct of races 5 and 8. It was not something from which, on the evidence, the appellant derived, or sought to derive, "enjoyment or relaxation" or which he undertook for the purpose of "leisure". It may well have been otherwise had the activity in question been found, in more general terms, to have been greyhound racing, or attendance at a greyhound race meeting. But the combined attitude of the parties narrowed the identification of the relevant activity to the operation of the catching pen gate. That the appellant may have derived some satisfaction from performing a service for the Club does not equate to pursuing that activity with the goal of deriving enjoyment or relaxation or for leisure.
I therefore accept that the finding that the activity of operating the catching pen gate was a recreational activity within par (b) of s 5K was erroneous.
It is then necessary to consider the subsequent finding that, in any event, the activity of operating the catching pen gate came within par (c), as a "pursuit or activity engaged in at a place where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure." This was the main focus of the appeal. On a literal interpretation of par (c), there could be little doubt that that activity comes within par (c), and so the primary judge found, at [91]. But the appellant argued that the literal interpretation gives an "artificial meaning" to the word "recreational", or to the concept of "recreational activity".
Issues with respect to the construction of the definition of "recreational activity" in s 5K have presented previously. In Goode the issues specifically concerned par (a) of the definition. The question there for determination was whether the term "sport", in the first limb of the definition, encompassed professional, as distinct from non-professional, horseracing. Put simply, the argument (as I understand it to have been) was that professional horseracing is not recreational in nature and therefore is not a recreational activity, notwithstanding that it is a "sport"; the exclusion of liability provided by s 5L is directed to activities of a recreational nature, not professional sporting activities.
This Court rejected the argument. Leeming JA explained the structure of the s 5K definition, which he described as "triply disjunctive". The first limb of the definition, par (a), his Honour pointed out, is directed to the characterisation of the activity in question; the second limb, par (b), is directed to the purpose of the activity; and the third limb, par (c), is focussed on the location in which the activity takes place: see [190]-[194]. In par (a) no distinction is drawn between sports participated in for recreational purposes, and professional sports. That was as far as it was necessary to go. The court was not called upon to consider the reach of par (c). His Honour did, however, say:
"193. … the purpose of the triply disjunctive definition is necessarily to extend the scope of 'recreational activities' beyond those which have a recreational purpose."
The point of the appellant's argument, both before the primary judge and in this Court, with respect to par (c), was that, if applied literally, s 5L has a potentially unacceptably wide operation with unintended consequences; a literal interpretation would give the defined term ("recreational activity") an "artificial meaning". I take it that what was intended to be conveyed by that was that the scope of activities encompassed is artificially and unacceptably wide. I will return in due course to the reasons advanced in support of that proposition.
The solution the appellant proposed to the problem that he perceived in the application of par (c) was to interpret that limb of the definition as "coloured" by the word "recreational". The essence of the submission, as I understood it, was that the words "any pursuit or activity" in par (c) should be construed as "any pursuit or activity of a recreational character" - that is, by reference to, or inclusive of, the very term the subject of the definition. Underlying the submission was the proposition that any activity or pursuit, to come within par (c), must itself be of a recreational character (something that is not expressly included in the text). Since operating the catching pen gate was not recreational in character, so the argument went, it was not captured by par (c) of the definition.
The primary judge rejected that submission. She said:
"96. 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 par (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 par (b), and certainly under par (c) of the legislative definition."
Since the argument in this case took place, a five judge bench of the Court was convened to determine a challenge to the correctness of the decision in Goode. A similar argument was there advanced. Judgment was delivered on 23 July 2020: Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152.
In Singh, Leeming JA (with whom all members of the Court on this issue agreed) discussed at some length authorities concerning whether a defined term may be used in the construction of the definition of that term. Ultimately, it was unnecessary to reach a conclusion because, even if the word "recreational" could inform the meaning of the first limb of the definition ("any sport") it could not undercut "the generality of 'any sport'" in the first limb of the definition (at [131]-[132]).
Singh does not therefore decide that it is impermissible to allow the meaning of "recreational" in ordinary language to influence the interpretation of an expansive definition. But neither does it decide that it is permissible to do so.
It was only the first limb of s 5K that was in question in Singh. The construction of the second and third limbs did not arise. But there is no reason to think that the principles of construction applied in that case should not also apply to par (c).
I said that I would return to the argument advanced on behalf of the appellant in support of the proposition that a literal interpretation of par (c) results in artificiality. The asserted unacceptable reach of a literal interpretation of par (c) of s 5K was illustrated by reference to hypothetical situations that might be caught by such an interpretation. A person walking through a park on the way home, or for exercise, a spectator at a sporting event, or a vendor of food and drink, it was hypothesised, would be engaged in pursuits or activities "at a place … where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure" and would therefore come within par (c).
That is correct, but it is of little, if any, consequence. That is because, as indicated above, the only purpose of the definition is to explain the term "recreational activity" as used in Pt 1A Div 5, and s 5L denies liability only where the recreational activity is a dangerous one and the risk of the activity that materialises and causes injury is obvious, as defined in s 5F. (Section 5M, also in Div 5, denies liability where the risk of a recreational activity is subject to a "risk warning").
Ordinarily, it could not be said that walking or exercising in a park, spectating at a sports event or providing catering services are activities that "involve significant risk of physical harm" and are therefore "dangerous" within the meaning given to that term in s 5K; for s 5L to operate to deny liability it would be necessary that an "obvious risk" of the activity that materialises and causes injury be identified. That these activities may come within the third limb of the definition of "recreational activity" is therefore inconsequential.
The appellant placed heavy emphasis on the fact that in performing his role as catching pen gate operator he was a volunteer. Reference was made to the importance of "voluntarism" in organised amateur sports and recreational activities in Australia. The appellant submitted that there were "powerful contextual reasons" for the proposition that par (c) was not intended to apply to volunteers.
In general those "contextual reasons" identified asserted potential anomalies in the application of s 5L of the CLA if a literal interpretation were given to the words "any pursuit or activity" as they appear in par (c).
Two of the asserted anomalies may be mentioned. First, s 3B(1)(f) and (g) of the CLA exclude from its operation (inter alia) civil liability for compensation or damages arising under the Workers Compensation Act 1987 (NSW) ("the WCA"). Thus, it was argued, it could be seen that the words "any pursuit or activity" do not, and could not have been intended to, extend to "employment activity".
That argument should be rejected. That the operation of the CLA is excluded in respect of certain proceedings does not affect the correct construction of the language used in its provisions.
It may be noted in passing (as mention was made of volunteer firefighters and lifesavers) that liability under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) is also, by s 3B(1)(g), excluded from the operation of the Act. This has the effect of protecting volunteers, such as members of the Rural Fire Service, emergency service workers and rescue association workers (including surf lifesavers) from the restrictive provisions of the CLA.
It was then argued that a literal interpretation of par (c) creates an artificial distinction between volunteers and employees.
That argument too, should be rejected. Non fault liability of employers for compensation payable to injured employees has long been governed by workers compensation legislation expressly directed to the employment relationship. In more recent times the liability of employers for common law damages has also been incorporated into that legislation, although in modified form. An injured employee is entitled to pursue any rights he or she may have in accordance with that specific legislation. There is no artificial division created by the exclusion from the CLA of claims by employees against employers for work related injuries.
A second asserted anomaly also arises out of the exclusion of the WCA. Section 151Z(1) entitles an employer who is liable under the WCA to pay compensation (for a work injury, as defined in s 4 thereof) to indemnity from any other person who is "liable to pay ….damages" (s 151Z(1)(d)).
The policy of s 151Z(1) is:
"11. … to adjust the responsibilities between two liabilities in circumstances where an injured worker could pursue either or both of the available remedies … [and is] directed at ensuring that the employer does not bear the final burden of paying compensation to a worker when the worker has been injured in circumstances where there is liability in another person to pay damages": QBE Workers Compensation (NSW) Ltd v Dolan (2004) 62 NSWLR 42; [2004] NSWCA 458.
Unless subject to another exclusion under s 3B(1), the "other person" would have the benefit of the more restrictive provisions of the CLA and may not be "liable to pay … damages". On the appellant's argument, the policy of s 151Z(1) would be defeated, because the employer would be unable to recover indemnity unless the other person was liable to pay damages.
These arguments are unpersuasive. The legislature has determined, plainly as a policy matter, that work injuries within the purview of WCA are to continue to be dealt with under legislation specifically directed to injuries of that nature, as are the relative liabilities of those liable to pay compensation or damages. What are asserted to be anomalies may, or may not, when tested, prove to be so. The interaction of the WCA and the CLA is best left to consideration in a case where the issues actually arise. For the moment I am unpersuaded that any potential anomaly casts light on the construction to be given to the language of par (c) of s 5K. In Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54 the majority (Kiefel CJ, Keane, Nettle and Edelman JJ) said even if there were such an anomaly (or anomalies), it is not the task of the court in construing legislation to repair any damage caused by the drafting of the legislation:
"52. The Court's ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court's function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court." (citations omitted)
In submissions in reply to those of the Club, the appellant asserted:
"9. All cases concerning the definition may be determined by asking two questions: Does the activity fit within the ordinary meaning of recreational activity? If so, then it is covered. If not: Does the activity fit within the extended meaning as defined by the subject matter of the definition?"
This formulation recognises that the definition, framed inclusively as it is, extends the ordinary meaning of the term "recreational activity", as stated clearly by Leeming JA in [193] of Goode.
Since the definition is an inclusive one, the ordinary meaning of "recreational activity" is not excluded, and the first part of the appellant's proposition is correct. The second part of the proposition assumes that it is permissible to construe a definition (or parts thereof) by reference to its subject matter. For the reasons given above, that assumption has not been shown to be valid.
The submission went on:
"10. On the plain text and straightforward context of the provision, the activity being undertaken by the appellant was not recreational in nature and therefore not within the ordinary meaning of the defined expression. He was undertaking a volunteer activity. Such class of activity is by nature altruistic. It encompasses selfless unpaid activities the purpose of which is to assist others for collective good (ie a community service)."
All of this is true, but irrelevant. The submission continued:
"Second, it did not fit within the extended meaning provided by the subject matter of the triply disjunctive definition. It was not a sport per para (a) and there was no evidence to suggest it was objectively or subjectively undertaken for a purpose set out in para (b). That is where the inquiry ends. Para (c) is irrelevant."
It was not explained why par (c) is irrelevant. It is, in truth, highly relevant. The proposition depends upon acceptance of the earlier proposition, that the phrase "any pursuit or activity" as used in s 5K(c) means more than is contained within it - that it means "any pursuit or activity of a recreational character". It contradicts the observation of Leeming JA in Goode, extracted above (at [54]), that the definition extends the meaning of "recreational activity" beyond activities that have a recreational purpose. Far from expanding the term "recreational activity", such a construction would limit it to its ordinary meaning.
The appellant steered clear of confronting the true import of his contention that the word "recreational" should "colour" the construction to be given to the definition: the true import of the contention is that additional words, not enacted by the legislature, should be read into par (c). No authority was advanced in support of the legitimacy of such an approach.
Two things dictate rejection of the proposed approach. First, the same collocation of words appears in par (b) of s 5K. It would, at the least, be incongruous to construe the term "any pursuit or activity" in par (c) as including the words "of a recreational character", and the same term in par (b) as not including those words. Yet to include the words in par (b) would result in tautology. As a general rule of statutory construction a word or phrase used in a statute is to be given the same meaning throughout. The general rule is subject to rebuttal, depending on the circumstances of any individual case: see the discussion in P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [5.170]-[5.180].
There is no indication anywhere in Div 5 of Pt 1A of the CLA, or, for that matter, any other part of the CLA, that the drafters intended that a different meaning be given to the term used in the two successive paragraphs.
Second, the starting point of the construction of a statute is the text of the provision in question: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]. That is not however, the end point of the exercise. In The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106, Kiefel CJ and Keane J, at [31]-[37], explained the correct approach to statutory construction. While that exercise commences with a consideration of the words of the provision itself, it requires, at the outset, consideration of the context in which the provision was enacted. That context includes the mischief which it may be seen that the statute is intended to remedy. There is nothing in the context of the CLA that supports the construction proposed by the appellant. Indeed, as will be seen below, the opposite is the case.
In similar vein the appellant relied on s 6 of the Interpretation Act 1987 (NSW) and (by implication) s 33. Section 6 provides:
"Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except insofar as the context or subject-matter otherwise indicates or requires."
The appellant's contention in this respect stopped short of maintaining, as s 6 would appear to permit, that the "context or subject matter" indicates or requires the abandonment of the definition; rather, his contention appears to have been intended to urge that the "context or subject matter" of the CLA (or Pt 1A, Div 5, or possibly s 5K or s 5L - the submission did not particularise) indicates or requires that the term "any pursuit or activity" be read as if modified to accommodate a restricted application of that term, so as to exclude such pursuits or activities as are not recreational in character.
There is no basis on which that proposition should be accepted. In Goode (at [191]-[193]) Leeming JA placed some emphasis on the use of the word "any" at the commencement of each paragraph. The inclusion of "any" underlines the breadth of the word or term that it quantifies.
Section 33 of the Interpretation Act requires that, in the interpretation of a statutory provision, a construction that would promote "the purpose or object underlying" the provision is to be preferred to one that does not.
Both that and the consideration of "context" as required by the reasoning in A2 call for some examination of the circumstances of the enactment of the CLA.
The CLA was introduced into the New South Wales Parliament in two stages amid what was said to be an "insurance crisis" arising out of escalating awards of damages for claims for personal injury resulting from alleged negligence. The first stage, which encompassed only Parts 1 and 2, dealt with awards of damages and imposed significant limitations on the assessment of damages, compared with what had been permitted under common law principles.
The second stage (which introduced Pts 1A and Pts 3-10) addressed, in detail, questions of liability. Some indication of the intent and object of the legislation can be found in the title of the Act when passed: Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW).
Introducing the first stage, the Premier made it clear that the intention of the package of "reforms" was to address what was perceived as:
"… the damage that the public liability crisis is doing to our sporting and cultural activities, small businesses and tourism operators, and our local community." New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 May 2002 at 2085.
That intention was confirmed in the Second Reading Speech when the Civil Liability (Personal Responsibility) Bill (2002) NSW was introduced on 23 October 2002. The Premier said:
"Our stage one and proposed stage two reforms have already led to announcements by the insurance industry that new public liability insurance products will be made available to New South Wales community organisations. But I emphasise that these reforms are not only a response to the current problems regarding insurance. It is important to remember that these reforms are not only about reducing premiums. The insurance crisis served to highlight just how far the law has drifted away from the concept of personal responsibility." New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002 at 5764.
In explaining individual provisions in the Bill, the Premier said:
"It is only for the most limited and exceptional circumstances where any departure can be justified. The bill will limit claims that arise from an inherent or obvious risk, or from the plaintiff's own contributory negligence. There will be a presumption that a person is aware of obvious risks, as was recommended in the Ipp Report. Similarly, there will be no duty to warn of an obvious risk, providing that no written law requires such a warning in a particular case. Nor will there be any liability for the obvious risks of particularly dangerous sports and other risky activities. The bill will also codify the current law so that there is no liability for the materialisation of inherent risks." New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002 at 5765.
An Explanatory note purported to explain Pt 1A, Div 5 in the following way:
"(v) Division 5 (recreational activities) deals with liability for harm resulting from a recreational activity. There will be no liability for harm resulting from an obvious risk of a dangerous recreational activity. …"
The Explanatory note does not accurately record what was enacted as s 5L, at least in its literal interpretation. It is correct so far as pars (a) and (b) go. But when par (c) is applied, s 5L excludes liability for "any pursuit or activity", whether recreational or not, provided that it is engaged in at a relevant (recreational) location. That omission does not bear upon the proper construction of par (c).
This brief history casts substantial light on the purposes and objects underlying the CLA, which was unmistakably designed to limit sharply the circumstances in which injured persons could claim damages from those who otherwise would or might (at common law) have borne responsibility for the injury.
Neither the application of s 33 nor a consideration of the "context" in which the CLA was enacted assists the appellant's argument.
In Singh (at [211]) McCallum JA and I urged caution in the application of s 5L, insofar as it is necessary to determine, as a fact, whether a risk that materialises and causes injury is an obvious risk of the activity in question. I do not resile from that view, although it is fair to note that it was not adopted by the three other members of the Court. It is not, I think, inconsistent with the recognition that the purpose and object of the CLA was to limit, and limit drastically, the circumstances in which damages may be recovered for negligently inflicted personal injury, and the quantum thereof.
No principled reason has been identified for departure from the literal words of s 5K(c), or for reading those words as they are modified in the way proposed by the appellant. In that respect it may be reiterated that the denial of liability of a defendant afforded by s 5L requires the defendant to establish:
that the sport, pursuit or activity in question was a dangerous one (as defined in s 5K); and
that the injury on which the plaintiff sues resulted from the materialisation of a risk of that sport, pursuit or activity; and
that the risk was obvious, as defined in s 5F.
The effect of acceptance of the appellant's construction would write out of existence each of pars (b) and (c) of s 5K and render them redundant - it would mean that "recreational activity" means "recreational activity in the ordinary sense of that term", unextended by the inclusive and expansive definition. If the term "any pursuit or activity" as used in par (c) is to be given that expanded meaning, it ought to be given the same meaning in par (b), which would render that paragraph tautological. And such a construction would contradict the decision in Goode.
That disposes of grounds (1)-(3) of the appeal, each of which I would reject.
[8]
(b) was the activity dangerous?
By ground 4 of the appeal the appellant challenges the finding that the activity of operating the catching pen gate was a dangerous recreational activity, the focus of this ground being on the finding of dangerousness. The issues that arise in this respect are entwined with those that arise in the consideration of whether the risk the materialisation of which resulted in the appellant's injury was an obvious one, and also of whether the injury was foreseeable, as required by s 5B(1)(a).
The primary judge found (at [117]) that that activity did involve significant risk of physical harm and was therefore dangerous. In doing so, she pointed to pleadings of the appellant that asserted that injury to him in undertaking that activity was foreseeable.
Where a s 5L defence is raised, both parties have to tread delicately. On the one hand, in order to succeed in establishing negligence, a plaintiff must show that risk of injury was foreseeable (CLA s 5B(1)(a)). On the other hand, to defeat a defence under s 5L, the plaintiff must resist the defendant's contention that the activity was dangerous and that the risk was obvious. The converse applies to the defendant, who must resist the plaintiff's claim that the risk was foreseeable but nevertheless (if that fails) establish that the activity was dangerous and that the risk was obvious. Although, for the purposes of s 5B of the CLA, the appellant maintained (as he had to) that the activity involved a foreseeable risk of injury, he also maintained that the activity was not dangerous within the s 5K definition.
The test of dangerousness is objective: Fallas v Mourlas at [13] and [136]. But whether a particular activity is dangerous may depend on the circumstances. In Fallas v Mourlas Ipp JA observed:
"36. Factors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm (and the converse may be the case). A cliff walk in daytime may be safe but at night it may be dangerous. Walking along the edge of a cliff may be dangerous at any time but walking on a country road not. Waterskiing may not be dangerous for a competent skier but the same may not be said for a novice. A recreational activity may [be] dangerous for a child but not for an adult. Participating in a recreational activity might be safe for a sober person but dangerous for one who is intoxicated. Fencing with appropriate protective equipment might not be dangerous but the same could not be said for fencing without protection. Sailing in calm seas for a short period might be safe, but sailing in a raging gale might be classified as dangerous."
The appellant submitted:
"38. … the evidence is that the appellant was standing in front of the gate and in the path of the lure, so that after it struck him, it pinned him against the steel gate. The appellant had not received any training or instruction from anyone associated with the respondent. The appellant had never previously operated the gate at a race meet, only at a few trials involving his own dogs. The appellant was distracted by a dog that had fallen and was running far behind the pack. On the totality of the circumstances, he was not engaged in a recreational activity that involves a significant risk of physical harm because that risk was not inherent in, or an incident of the activity of opening and shutting a catching pen; rather, it was a risk that arose from the respondent's negligence: Alameddine, at [43]-[46]."
In support of his claim that the Club was in breach of its duty to him the appellant asserted (Amended Statement of Claim, par 15(a) that the Club ought to have taken precautions against the risk of injury, inter alia, because "the probability of the occurrence of the risk was relatively high". When later considering the issue of breach of duty the primary judge found that the risk of injury by operating the catching pen gate was foreseeable (CLA s 5B(1)(a)) (at [168]) and not insignificant (CLA s 5B(1)(b)) (at [170]). In relation to the s 5L defence she went further and found:
"115 …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 [sic] pen gate was a risk which had a real chance of materialising."
I am not persuaded that the circumstances cited (set out in [106] above) support the appellant's proposition that the activity was not dangerous. On the contrary, if the absence of any training or instruction (which the appellant pleaded as a precaution that the Club ought to have taken) have any bearing on the question, it was to support the respondent's proposition that the activity was dangerous. So also was the fact that the appellant had not previously operated the gate at a race as distinct from trials. If the appellant's distraction by the fallen dog cast any light on whether the activity was dangerous, it, again, supported the respondent's position.
The submission made on behalf of the appellant was that the risk of injury was not one that was "inherent in, or an incident of" the activity of operating the catching pen gate. That language is drawn from the decision of this Court in Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355 at [43]-[46]. The proposition does reflect what Macfarlan JA (with whom Campbell AJA and I agreed) said in Alameddine. The question there in issue was not whether the activity was dangerous but whether the risk that materialised was obvious. There are, however, significant overlaps in the two questions. Macfarlan JA went on to give several instances of cases in which it had been held that the injury in question did not result from the materialisation of an obvious risk.
I see no reason to doubt the factual findings of the primary judge, that the operation of the catching pen gate involved a significant risk of physical harm. The lure travelled on a rail at more than 70 kph. Although there was a "lure driver" and it may be assumed that its travel could have been arrested if danger threatened, it may also be assumed that such an exercise would have taken some time. The lure presented an obvious danger to anybody standing in its way. I agree with the primary judge that the activity of operating the catching pen gate was a dangerous one. I would therefore reject ground 4.
The consequence of these findings is that the primary judge was correct to conclude that the defence under s 5L of the CLA was made out. Since s 5L is a "liability-defeating" provision, that is sufficient to dispose of this appeal. It is therefore possible to deal briefly with the remaining grounds.
[9]
(c) obvious risk
No ground of appeal expressly challenged the finding that the risk that resulted in the appellant's injury was obvious, but the following is included for completeness.
Identification of the risk asserted to be an obvious risk is an essential preliminary task in the determination of a defence under s 5L. The degree of particularity or generality with which the risk is defined may dictate the outcome of the defence.
In Singh a jockey in a horse race deliberately rode his mount in such a way as to cause a collision with another horse, resulting in serious injury to Mr Singh, who was riding a third horse. The parties propounded vastly different formulations of the risk, from the very general (on behalf of the defendant) to the particular (on behalf of the plaintiff). This Court divided on whether the risk was obvious. Leeming JA (with whom, in this respect, Basten JA and Payne JA agreed) observed that the obviousness of a risk is a question of fact (at [137]). Their Honours agreed that, in that case, the risk that a jockey would deliberately ride so as to cause a collision was obvious. McCallum JA and I took the opposite view. There was no difference of opinion with respect to the principles which apply to the determination of what is an obvious risk. The difference was as to the application of the principles.
[10]
Grounds 5-8: breach of duty
Section 5B of the CLA provides:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless-
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)-
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
Section 5C provides:
"5C Other princples
In proceedings relating to liability for negligence-
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
As also mentioned above, it was uncontroversial that the Club owed the appellant a duty of care; the primary judge accepted that the risk of injury to him was foreseeable and not insignificant. She held, however, that the appellant had not established any breach of that duty.
As mentioned above, the appellant pleaded three precautions that he alleged the Club ought to have taken. These were:
(i) delegating the task of operating the catching pen gate to an employee or other person properly trained in its operation;
(ii) providing the appellant with adequate training and instruction in avoiding being struck by the lure; and
(iii) incorporating a flap in the gate to enable the lure to pass through the closed gate so as to not require the operator to partially close the gate and then fully close the gate once the lure had passed (i.e. the gate could simply go from open to closed, and a flap could be opened or closed from a safe position to let the lure past).
Each was rejected by the primary judge, and each was maintained on appeal.
In rejecting the first and second of these precautions the primary judge said:
"186. Operating the catching pen gate is a relatively simple task. The plaintiff had already operated the catching pen gate competently on previous occasions, and gave evidence that he was aware of the risk of colliding with the lure if he stood in its path … The plaintiff has not provided any evidence that some form of further assessment, training or instruction would have lowered the probability of the harm occurring (s 5B(2)(a)), as the evidence is that the plaintiff was already aware of the procedure required of him."
In rejecting the third asserted precaution (modification of the gate) the primary judge said:
"180. The accident occurred at a country greyhound race track. Nearby Taree and Kempsey do not have either any [sic] of these proposed modifications in place. The two major metropolitan tracks in Queensland, Ipswich and Albion Park have the flap in the catching pen gate, but the operator stands on the other side of the gate, not in front like at the Wauchope track. The plaintiff provided no evidence that anyone else at any of these tracks had been injured by standing in the path of the lure.
181 Having considered all the evidence provided, it is my view that the burden of taking these steps was not necessary, because it would be most unusual for a reasonable person operating the catching pen gate to be so distracted that he would remain standing in the path of the oncoming lure. Thus, the probability that the harm would occur if the precautions were not taken was low (s 5B(2)(a)). I also agree that stepping up into the platform cage arrangement, as required to mount the modified gate, in itself could cause an accident. I note here as well that the social utility of operating the catching pen gate is that it facilitates country greyhound races to be run for the enjoyment of enthusiasts, of which the plaintiff is one (s 5B(2)(d)).
182. Hence, under the circumstances, it is my view that the plaintiff has failed to demonstrate that a reasonable person would have made the modifications in [the third asserted [precaution, the modification of the gate] to avoid the risk of harm."
With respect to these paragraphs the appellant submitted:
"42. The primary judge engaged in retrospective reasoning by focusing subjectively on what the plaintiff actually did; and failed to give proper and adequate consideration to the fact of his voluntarism in undertaking a duty or task on behalf of the respondent in the context of his complete lack of training or instruction, inexperience at a competitive race meeting with a full complement of dogs, the significance of the risk of injury in undertaking the task in such circumstances and whilst being distracted, the appellant's expert evidence as to practical and inexpensive [sic] of the precautions, the ease and convenience of utilising a trained and experienced operator, the fact that other clubs had reduced the risk by incorporating a flap in the corner of the gate and that of the respondent following the appellant's injury without evidence of inconvenience or disproportionate costs."
The appellant did not attempt to identify what would have been involved in "training and instructing" him not to stand between the gate and the inside railing so that he was not in the way of the lure. To state the proposition is to state the obvious. Other than reinforcing that obvious proposition by a direction to avoid standing near the rail on which the lure ran, it is difficult to contemplate what more the Club might have done, by way of training or instruction and the appellant's submissions did not throw any light on that contention.
Installation of a flap would operate as now exists at other race tracks following the appellant's injury. The operator stands on the outside of the track in an elevated position, not needing to be on the track at all except to move the gate to a closed position at the beginning of the race. This obviates the risk that the operator will stand in the path of the lure as the function can be performed at a distance from the lure's path. Because the risk of injury was in any event, low, the primary judge was not satisfied that a reasonable person in the position of the Club would have taken the precautions.
I see no error in the reasoning or the conclusions of the primary judge in respect of any of the proposed precautions. I would therefore reject these grounds of appeal.
[11]
Grounds 9-11: Causation
Section 5D of the CLA relevantly 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.
…
(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.
By s 5E, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
It is to be observed that the issues relevant to causation depend upon a finding of negligence. Since the primary judge did not find negligence on the part of the Club the discussion of causation is entirely hypothetical, on the assumption that some breach of duty (in this case, failing to take one or more of the postulated precautions) had been established.
The primary judge found that factual causation had been established, but held that:
"203. …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."
I would accept that, had the appellant established that any of the three postulated precautions ought to have been taken, there was no reason why the scope of the Club's liability should not extend to the harm caused. In light of the primary judge's findings with respect to those precautions, and my concurrence with those findings, that argument is an arid one. I would therefore reject grounds 9-11, based on the absence of any finding that the Club was negligent. There was no negligence that caused the appellant's injury
[12]
Grounds 12, 13: contributory negligence
The primary judge assessed the appellant's share of liability for his injury at 50%. By grounds 12 and 13 the appellant challenges that determination. Recognising that the assessment of contributory negligence is essentially a matter for the first instance judge, the appellant nevertheless submitted that, having regard to four "uncontroversial facts", the assessment was erroneous. The four asserted "uncontroversial facts" were:
• the respondent asked the appellant as a volunteer to undertake the task (albeit relatively simple) on a race day with no forewarning and without proper or adequate inquiry as to his training or experience and without supervision in circumstances where the magnitude for harm was significant if done incorrectly;
• the appellant was in fact untrained or instructed in the operation of the gate;
• the appellant was in fact inexperienced in operating the gate during a competitive race meeting with the full complement of dogs;
• the appellant's attention was divided and distracted as a result of a dog having fallen at the first turn and been well behind the pack."
The facts listed might be properly characterised as "uncontroversial", but they do not necessarily throw light on the assessment of the appellant's proper share of responsibility for his injury. That he was a volunteer did not affect his responsibility to take care for his own safety: Hrybynyuk v Mazur [2004] NSWCA 374 at [24]; (2004) Aust Torts Reports 81-774. I have already dealt with the issue of training or instruction. It is true that the appellant was inexperienced in operating the gate during a competitive race meeting but he had some experience in doing so in trials, and, in any event, it requires little training or instruction to remain away from a rail on which a mechanical lure is moving at high speed. That the appellant's attention was "divided and distracted" by the fallen dog rather emphasises his own level of responsibility.
Even if I were to conclude that the Club was liable to some extent for the appellant's injury, I would not interfere with the assessment of contributory negligence.
The consequence of these conclusions is that, in my opinion, the appeal must be dismissed.
The orders I propose are:
Appeal dismissed;
The appellant to pay the respondent's costs of the appeal.
[13]
Amendments
26 August 2020 - paragraphs [26] and [56] - corrected formatting
17 September 2020 - paragraph [83] - grammatical error
paragraph [84] - spelling error
02 February 2021 - Removal of appeal book references.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 February 2021
Solicitors:
Byrnes Lawyers (Appellant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2019/220052
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law Division
Citation: [2019] NSWSC 780
Date of Decision: 27 June 2019
Before: Harrison AsJ
File Number(s): 2016/304492
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant suffered a serious injury to his left leg in an incident that occurred at a greyhound racing track in Wauchope. The greyhound racing track was controlled and managed by the respondent, the Hastings River Greyhound Racing Club ("the Club"). The appellant brought proceedings against the Club claiming that his injuries were caused by its negligence. The claim was governed by the Civil Liability Act 2002 (NSW) ("the CLA").
The appellant's injury occurred while he was voluntarily assisting the Club by operating a "catching pen gate". His task required him to let a lure (which the dogs chase around the track) pass through a gap between the inside rail and the gate, and then to close the gate to divert the dogs into a catching pen. During the race, the appellant was distracted by a dog that had fallen, recovered, and continued to run; while so distracted, he was struck in the leg by the lure which travels at around 70 kilometres per hour.
By s 5L of the CLA a defendant is not liable in negligence for harm suffered by a plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity. By pars (b) and (c) of s 5K, "recreational activity" is defined to include:
"(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure".
The parties joined in identifying the relevant activity as "the operation of the catching pen gate" (as distinct from participating in greyhound racing generally). The primary judge identified the relevant risk of harm as "serious injury [to the plaintiff] from being struck by the lure if standing in its path during a greyhound race". She held that the appellant was engaged in a recreational activity, as defined in both s 5K(b) and (c) of the CLA.
The primary judge held that that risk was "an obvious risk" and that operating the catching pen gate was a dangerous recreational activity; thus his injury resulted from the materialisation of an obvious risk of that activity. Accordingly, the defence under s 5L of the CLA (which affords a complete answer to the appellant's claim) succeeded.
The primary judge found, for the purposes of s 5B of the CLA, that the Club owed the appellant a duty of care and that the risk of injury was foreseeable and not insignificant, but that because the risk of injury was low, she was not satisfied that a reasonable person in the position of the Club would have taken the precautions propounded by the appellant. She found that the appellant had proved factual causation (under s 5D(1)(a) of the CLA) but that he had failed to prove that it was appropriate for the scope of the Club's liability to extend to the harm caused (s 5D(1)(b)). She accordingly found that the appellant had failed to establish that the Club should be held liable for his injury. Finally, lest she be wrong, the primary judge determined that for the purposes of s 5R of the CLA (contributory negligence) the appellant bore 50% of the responsibility for his injury and then assessed the heads of damage that were not agreed upon.
On appeal the appellant challenged:
(i) the finding that, in operating the catching pen gate, he engaged in a dangerous recreational activity (grounds 1-4);
(ii) the finding that he had failed to establish that the Club had breached the duty of care it owed to him (grounds 5-8);
(iii) the finding, pursuant to s 5D(1)(b) of the CLA that, notwithstanding that factual causation had been proved, the Club was not to be held responsible for the appellant's injuries (grounds 9-11); and
(iv) the apportionment of contributory negligence at 50% (grounds 12, 13).
With respect to the first challenge, the crux of the appellant's argument was that, if applied literally, s 5L has a potentially unacceptably wide operation with unintended consequences and as such would give the defined term ("recreational activity") an "artificial meaning". The essence of the submission was that the words the words "any pursuit or activity" in par (c) should be construed as "any pursuit or activity of a recreational character" - that is, by reference to, or inclusive of, the very term the subject of the definition. Underlying the submission was the proposition that any activity or pursuit, to come within par (c), must itself be of a recreational character (something that is not expressly included in the text).
Held, dismissing the appeal (per Simpson AJA, Gleeson and White JJA agreeing):
With respect to the appellant's first challenge:
Judgment
GLEESON JA: I agree with the orders proposed by Simpson AJA and with her Honour's reasons, noting however that the difference of opinion in Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 concerning the identification of an obvious risk under s 5L of the Civil Liability Act 2002 (NSW) is not significant for the disposition of this appeal. As Simpson AJA observes at [112], there is no challenge in the present case to the finding that the risk that resulted in the appellant's injury was obvious.
WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Simpson AJA. I agree generally with her Honour's reasons. The observations which follow assume a familiarity with those reasons and the legislative provisions in question.
In Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, Leeming JA discussed the authorities and principles relevant to whether the use of a particular descriptive defined term with its own usual connotations or denotations can itself influence the construction of the definition of the term (at [80]-[132]). Simpson AJA notes (at [59] and [60]) that all members of the Court in Singh agreed with Leeming JA's analysis of this issue, but that Singh neither decided that it was permissible to allow the meaning of "recreational" in the term to be defined to influence the interpretation of the definition, nor that it was impermissible to do so.
This appeal is not a vehicle for deciding that question. I agree with Simpson AJA's reasons that para (c) of the definition of "recreational activity" in s 5K of the Civil Liability Act does expand the ordinary meaning of "recreational activity". I agree that para (c) of the definition of "recreational activity" is not to be read down so that it applies only a recreational pursuit or a recreational activity engaged in at a place described in para (c). As was said in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 and Singh bhnf Ambu Kanwar v Lynch, such a construction gives no regard to the word "any" in the phrase "any pursuit or activity". The construction propounded by the appellant would not in any way enlarge the ordinary meaning of "recreational activity" and would render para (c) otiose.
The appellant supported his construction of the definition of "recreational activity" in s 5K(c) by reference to possible other cases where a literal interpretation might be said to be unintended. In particular, the appellant submitted that on a literal interpretation of the definition of "recreational activity", a volunteer bush fire fighter fighting a fire in a national park or similar bushland (whether a national park or not) used for enjoyment, relaxation or leisure, would be engaging in a "pursuit or activity" (fire fighting) in a place that would be included within the definition of "recreational activity" in para (c) of the definition in s 5K, and that the fire fighter's engagement in that pursuit or activity would be a dangerous recreational activity because it involved a significant risk of physical harm.
The goal of the activity undertaken is relevant to determining whether the activity is or is not a recreational activity (at least within par (b) of the definition). The stated "goal" of the appellant operating the catching pen gate was to assist in the conduct of races 5 and 8. It was not something from which, on the evidence, the appellant derived, or sought to derive, "enjoyment or relaxation" or which he undertook for the purpose of "leisure". The finding that the activity of operating the catching pen gate was a recreational activity within par (b) of s 5K was erroneous: at [50]-[51].
Belna Pty Ltd v Irwin [2009] NSWCA 46; Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361; Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 applied.
The definition of recreational activity extends the meaning of "recreational activity" beyond activities that have a recreational purpose: Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311. Even if there were an anomaly arising from the application of the definition, it is not the task of the court in construing legislation to repair any damage caused by the drafting of the legislation. Neither s 33 of the Interpretation Act 1987 (NSW) nor a consideration of the "context" in which the CLA was enacted support the appellant's argument. No principled reason was identified for departing from the literal words of s 5K(c), or for reading those words as they are modified in the way proposed by the appellant: at [75], [80], [97], [99].
Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54 applied.
The test of dangerousness is objective, but whether a particular activity is dangerous may depend on the circumstances. There is no reason to doubt the factual findings of the primary judge that the operation of the catching pen gate involved a significant risk of physical harm. The lure travelled on a rail at more than 70 kilometres per hour and presented an obvious danger to anybody standing in its way: [105], [110].
Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 referred to.
With respect to the appellant's second and third challenges:
There was no error in the reasoning or the conclusions of the primary judge that the appellant had failed to establish that a reasonable person in the position of the Club would have taken the precautions that the appellant contended ought to have been taken: at [124].
With respect to the appellant's fourth challenge:
The fact that the appellant was a volunteer did not affect his responsibility to take care for his own safety. That the appellant's attention was "divided and distracted" by the fallen dog emphasises his own level of responsibility. Even if it were concluded that the Club was liable to some extent for the appellant's injury, it would not be correct to interfere with the assessment of contributory negligence: [130]-[131].
Hrybynyuk v Mazur [2004] NSWCA 374; (2004) Aust Torts Reports 81-774 referred to.
A member of a fire brigade employed by the Government of New South Wales in the service of the Crown (Fire and Rescue Act 1989 (NSW) s 69(2)) who suffered injury in fighting the fire as a result of negligence of his employer could sue for damages at common law unconstrained by the requirements of the Civil Liability Act: (s 3B(1)(f)); although constrained by Div 3 of Pt 5 of the Workers Compensation Act 1987 (NSW). But, it was submitted for the appellant, a volunteer fire fighter injured in fighting a fire in such a place, who would otherwise have a good claim against the Crown for negligence in the conduct of the fire fighting activities, would find his or her claim barred by a literal interpretation of s 5L, because the harm suffered was the materialisation of an obvious risk of a dangerous recreational activity. This was because, so the argument went, on a literal construction of para (c) of s 5K, the fire fighter would be engaged in an activity at a place where people ordinarily engaged in a pursuit or activity for enjoyment, relaxation or leisure (e.g. in the national park where the fire was raging) and the activity in which the fire fighter was engaged at that place involved a significant risk of physical harm.
I am prepared to assume, without deciding, that in such circumstances a volunteer fire fighter injured through the negligence of the relevant authority of the Crown responsible for fighting the fire, would be precluded from maintaining an action for common law damages by reason of s 5L and the definition of "recreational activity" in s 5K(c). If that be the case, it may be an unintended consequence of the width of the definition of "recreational activities" in s 5K. But, as Simpson AJA observes with reference to Esso Australia Pty Ltd v Australian Workers Union (2017) 263 CLR 551; [2017] HCA 54, it is not the Court's function to construe a provision as if it had a meaning Parliament did not intend it to have in order to overcome unintended consequences, particularly, to avoid hypothetical potential consequences.
I agree with the orders proposed by Simpson AJA.
SIMPSON AJA: On 25 April 2015 the appellant, Jason Carter, suffered serious injury to his left leg in an incident that occurred at a greyhound racing track in Wauchope, an inland town in the mid north coast area of NSW. The greyhound racing track was controlled and managed by the respondent (the Hastings River Greyhound Racing Club, to which I will refer as "the Club"). The appellant brought proceedings against the Club claiming that his injuries were caused by its negligence. The claim was governed by the provisions of the Civil Liability Act 2002 (NSW) ("the CLA"). After a four day hearing Harrison AsJ, the primary judge, upheld a defence under s 5L of the CLA and gave judgment for the Club and ordered the appellant to pay its costs: Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780. Because s 5L affords a complete defence to a claim in negligence, it was not (strictly) necessary that the primary judge determine whether the Club was negligent. The parties had reached partial agreement with respect to the quantum of damages to which the appellant would, if successful, have been entitled. Against the possibility that her decision was wrong her Honour stated her views with respect to the issue of negligence, assessed the outstanding damages issues, and also the partial defence of contributory negligence.
The appellant appeals against the orders. Neither party has challenged the damages assessment.