District Court of WA|2017-06-29

DIXON -v- APOSTOLIC CHURCH AUSTRALIA LIMITED [2017] WADC 88 (29 June 2017)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

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

Tort - Damages for personal injury - Negligence - Whether defendants failed to take reasonable steps to provide safe amateur go-karting event on parking lot

Whether event involved a dangerous recreational activity as defined by s 5E of the Civil Liability Act 2002 - Whether it was an obvious risk under s 5F of the Act that the plaintiff might lose control and hit a tree on the edge of the parking lot - Whether defendants not liable under s 5H of the Act on the basis that it was a dangerous recreational activity and the plaintiff's harm was the result of an obvious risk of that activity

Whether under s 5I(1) of the Act the defendants did not owe a duty of care in respect of a risk of the activity because they gave a warning in respect of that risk

Whether under s 5O of the Act the defendants did not owe a duty of care to warn of the risk of the activity because it was an obvious risk

Whether plaintiff contributorily negligent under s 5K

Whether the second and third defendants' conduct in respect of the go-karting activity was community work done in good faith as volunteers under s 3 and s 4 of the Volunteers and Food and Other Donors (Protection of Liability) Act 2002 (WA)

Volunteers and Food and Other Donors (Protection of Liability Act 2002 s 3, s 4

Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128

Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355

Belna Pty Limited v Irwin [2009] NSWCA 46

Bus v Sydney County Council (1989) 167 CLR 78

C G Maloney v Hutton-Potts [2006] NSWCA 136

Carey v Lake Macquarie City Council [2007] NSWCA 4

Collins v Clarence Valley Council [2015] NSWCA 263

Edwards v Consolidated Broken Hill Ltd [2005] NSWSC 301

Evans v Lindsay [2006] NSWCA 354

Falvo v Australian Oztag Sports Association [2006] NSWCA 17

Holroyd City Council v Zaiter [2014] NSWCA 109

Indigo Mist Pty Limited v Palmer [2012] NSWCA 239

Jaber v Rockdale City Council [2008] NSWCA 98

Jones v Bartlett (2000) 176 ALR 137

Laoulach v Ibrahim [2011] NSWCA 402

Lormine Pty Ltd v Xuereb [2006] NSWCA 200

Onetech Pty Ltd v Shaw [1999] WASCA 289

Sharp v Parramatta City Council [2015] NSWCA 260

Shaw v Thomas [2010] NSWCA 169

State of Queensland v Kelly [2014] QCA 27

Streller v Albury City Council [2013] NSWCA 348

Strong v Woolworths Ltd (t/as Big W) [2012] HCA 5; (2012) 285 ALR 420

Town of Port Hedland v Hodder [No 2] [2012] WASCA 212

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

Vreman and Morris v Albury City Council [2011] NSWSC 39

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 SCHOOMBEE DCJ: On 25 August 2012 the plaintiff, Ms Ellen Dixon attended a conference presented by the first defendant, the Apostolic Church Australia Ltd (the Church) at the Grace Christian Church (as it was then known), located in Bunbury, Western Australia. Ms Dixon is a graphic designer and acted as a volunteer at the conference taking took photographs and video footage. The purpose of the conference was to provide male members of the church with the opportunity to learn about spiritual growth, marital relationships and parenting. The theme was 'Accelerate' and the organisers of the conference decided to provide a go-karting activity on the parking lot of the Church during the lunch break of the conference.

2 The person responsible for organising the conference on behalf of the Church was Mr Rhett Topliss, an associate pastor and full-time employee.

3 The second defendant, Mr Graeme Holman, was a long standing member of the Church and had a background in go-kart racing. He had assisted the Church as a volunteer on many occasions, mainly with regard to their Sunday School program for children and in respect of maintenance work. Mr Holman suggested that he could obtain two racing go-karts from friends and that they could be available to give participants of the conference the opportunity to have a ride around a track established on the Church's car park.

4 Mr Holman obtained an 80 m shipping rope from an acquaintance which was laid out in an oval shape on the bitumen car park to indicate the inner perimeter of the track. He also sourced some witches' hats and taller traffic bollards which were placed in various positions around the track. He hired red and white plastic traffic barriers from Coates Hire which could be interlocked and filled with water to provide a barrier between the track and the Church building where the conference was to be held.

5 The third defendant, Mr Leonard Holdaway, provided his racing go-kart and attended the go-karting activity. He was not a member of the Church or otherwise involved in organising or running the event. A second kart was obtained from a Mr Neil Gibbons. These were racing karts and did not have any on-board safety protection such as seatbelts or rollover protection, as is prescribed for so-called 'concessional' go-karts used at recreational go-karting facilities by participants paying a fee.

6 After the male conference attendees had a turn during lunchtime, Mr Holman also offered the women volunteers working in the kitchen a go. Three of them safely did a number of laps around the track. Ms Dixon videoed that activity on her mobile phone. She had already experienced a turn during the lunch break when, with encouragement from the male participants, she drove five or six laps without any incident. After the three women had their turn, Mr Holman offered Ms Dixon another go. Mr Holman gave her the same basic instructions that he had given her on her earlier turn including telling her that the accelerator was on the right and the brake on the left and that she had to go reasonably fast as this would allow better steering of the kart and cause less vibration.

7 Ms Dixon first travelled in the clockwise direction that all participants had been told to take but lost control as she came out of the southern corner near the Church building. The kart lost traction, spun around and came to stop facing the opposite direction on the track. Mr Holman came over to re-start the kart and Ms Dixon took off in an anti-clockwise direction. When she came out of the northern corner the kart again lost traction and started to spin. In the process of trying to control it, the kart pointed to the outer perimeter of the track and straight at a tree located on the western side of the tarmac. Ms Dixon tried to apply the brake, but instinctively slammed her right foot down which hit the accelerator instead of the brake. The kart rocketed forward and straight into the tree.

8 Ms Dixon received a serious injury to her right leg with the foot almost severed and the ends of the tibula and fibula sticking out. She was taken by helicopter to Royal Perth Hospital, spent many weeks in hospital and underwent multiple surgical procedures. Unfortunately her leg could not be saved and almost two years after the accident it was finally amputated below the knee. Ms Dixon now uses a prosthesis on her right leg.

9 The parties agreed the total amount of damages to which Ms Dixon was entitled at an undisclosed sum, but the defendants denied liability for her injuries.

10 There was no dispute between the parties that the Church and Mr Holman owed a duty of care to Ms Dixon to take all reasonable steps to ensure that the go-karting activity was safe for participating drivers. At the close of the case counsel for Ms Dixon conceded that Mr Holdaway, the third defendant, had no liability and Ms Dixon essentially discontinued her case against him.

11 The parties agreed that the duty of care was owed under s 5B of the Civil Liability Act 2002 (WA) (the CLA). The Church and Mr Holman further conceded that each of them was an occupier of the premises and the go-kart track under the Occupiers' Liability Act 1985 (WA), but the parties agreed that the standard of care that an occupier is required to exercise pursuant to s 5 of that act is not materially different in the context of the facts of this case to the standard of care provided for in s 5B of the CLA. Accordingly, this case is to be decided in accordance with the provisions of the CLA.

12 At the close of the case counsel for Ms Dixon also conceded that the Church is a community organisation that organises the doing of community work by volunteers under s 3(1) of the Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) (the Volunteers Act), as it then applied, and that Mr Holman performed community work in good faith as a volunteer by organising the go-karting activity. This means that pursuant to s 6(1) of the Volunteers Act Mr Holman is personally excluded from liability to Ms Dixon, but the Church incurs his liability under s 7(1) of that Act.

Whether the Church and Mr Holman breached their duty of care by failing to:

(a) erect safety barriers around the perimeter of the go-karting track;

(b) provide safety belts and roll-over protection on the go-karts;

(d) undertake any or an adequate risk assessment prior to the go-karting activity taking place;

(e) provide a warning to Ms Dixon of the potentially serious risk of injury arising from participating in the go-karting activity.

Whether the Church and Mr Holman are not liable for the harm caused to Ms Dixon under s 5H of the CLA, because the go-karting activity was a dangerous recreational activity and the risk of harm to Ms Dixon was the result of the occurrence of something which was an obvious risk of that activity.
Whether the Church and Mr Holman did not owe a duty of care pursuant to s 5I of the CLA, because the go-karting activity was a recreational activity and there had been a warning to Ms Dixon of the risk of the activity.
Whether the Church and Mr Holman did not owe a duty of care to Ms Dixon pursuant to s 5O of the CLA to warn of the risk of harm, because it was an obvious risk.
Whether Ms Dixon was contributorily negligent under s 5K of the CLA.

14 There is little dispute about the layout of the track on the car park next to the Church building. Mr Roger Kahler, the expert called on behalf of Ms Dixon, went to the site and took measurements based on the information provided and particularly on the still images from a video depicting some of the male participants using the track (exhibit 4) and on the video clips of the female participants taken on Ms Dixon's mobile phone (exhibit 6). Mr Kahler prepared a drawing (figure 2 on exhibit 11) which illustrated the approximate shape of the inner oval marked by the shipping rope and the distances to objects in the vicinity of the track. The drawing was not in dispute other than it being put to Mr Kahler that Mr Holman had reduced the radius of the corner on the northern side (the corner furthest away from the Church building), so that it was narrower than on the southern side.

15 Mr Kahler and Mr Martin Simms, the expert called on behalf of the defendants, agreed that the straight of the track on both the eastern and western side was approximately 22.5 m long. Mr Holman gave evidence that the corner on the northern side was given a smaller radius than on the southern side as a tighter curve would cause participants to take that corner at lesser speed. The corner on the southern side (near the Church building) was flatter.

16 The distance from the tip of the rope on the southern corner to the row of white and red Coates barriers was approximately 7.5 m while that barrier was approximately 15.4 m away from the Church building. On the opposite side, the northern end, there was no large obstacle other than a kerb which was approximately 11.3 m away from the tip of the corner of the rope. On the eastern side there was a kerb approximately 12 m from the inner rope while on the western side a row of wooden bollards interspersed with trees marked the outer edge of the car park. The tree that Ms Dixon hit when coming out of the northern corner was approximately 14.5 m from the inner rope measured at a point on the rope some 20 m from the tip of the northern corner. However, Ms Dixon did not travel down the straight on the western side after her kart lost traction and started spinning. This occurred just as she had rounded the corner and she then accelerated diagonally into the tree. Both experts agreed that she would have travelled approximately 8 - 10 m from the point where the kart came out of the spin to the tree.

17 The still images from the video clips showing the male participants indicate that there were two witches' hats marking the inner parameter of the corner on the southern side near the Church building, another two witches' hats marking the inner parameter of the northern corner and also one traffic bollard and two witches' hats marking the outer perimeter of track on the north-eastern corner. A single Coates traffic barrier was placed near the kerb on the eastern side, approximately midway down the straight, which served as the so-called 'pit stop'. A trailer and car were parked in close vicinity to the pit stop on the other side of the kerb line.

18 Apart from the one traffic bollard and two witches' hats on the north-eastern corner and the Coates traffic barrier on the eastern straight, the outer perimeter of the track was not indicated in any manner. The 11 or so Coates barriers on the southern side and the single Coates barrier on the eastern side were the only barriers. There was nothing stopping a kart hitting the kerb on the northern or eastern side or one of the bollards or trees on the western side in the event of a driver losing control and veering off the 'designated' track, which was intended to be on a trajectory hugging the inner rope.

19 Ms Dixon gave evidence that she had never driven a go-kart before. In fact she only had a licence for an automatic car. She said while she was videotaping the proceedings at the conference in the morning she heard an announcement by Mr Topliss that there would be a go-karting event over lunch time, that participants would use the karts at their own risk, had to be careful and follow instructions and if they damaged the karts they had to buy them. She could not recall Mr Holman also making an announcement and repeating the warning that the karts were to be driven at the participants' own risk.

20 Ms Dixon said at lunchtime she stood on the eastern footpath taking photographs and videos of the male participants driving the go-karts. There were two karts on the track at any given time, but racing was prohibited. She heard Mr Holman give each participant basic instructions which included that the brake was on the left and the accelerator on the right.

21 When she took her turn over lunchtime Mr Holman also showed her the brake pedal on the left and the accelerator on the right. Ms Dixon stated that when she drove five or six times around the track she felt that she was going quickly, but was told afterwards that she had not gone fast at all and someone could have walked next to her.

22 When Mr Holman offered the women volunteering in the kitchen to have a turn she also went outside and took the videos of the other three women, Ms Sharyn Harris, Ms Chrissy Lewis and Ms Gaynor Topliss, driving around the track. The voices that are audible on the video clips have been transcribed by agreement between the parties. From the transcript (exhibit 7) it appears that Mr Holman told Ms Sharyn Harris:

That's the accelerator and just keep gentle on the accelerator, all right? But you need to go brake or accelerator, one or the other. You need to go quick. I'm gonna hurry you up down the straight, just because the engine doesn't like going slow, not because I want you to go fast.

23 Mr Holdaway, who was also watching the women driving, added:

Just touch the brakes a little bit, but not a lot. Gotta be careful if you hit the water a bit quickly you can slide, you won't get hurt, just spin.

24 When Ms Chrissy Lewis had her turn Mr Holdaway told her:

You need to go fairly quick, ok? It makes it easier on the steering, and then just rest it back, lean back so you're comfortable. Ok?

25 Before Ms Gaynor Topliss took off Mr Holman told her:

Okay. You need to go fast. You will notice that I was running faster than you guys up the track. Alright? You are only going slow, you need to go quickly and this thing will go way fast.

The whole idea of go-karting is flat out, hit the brakes, flat out, hit the brakes.

27 Ms Dixon gave evidence that after the three women had completed their rounds Mr Holman offered her another turn. She accepted and he again showed her the brake pedal on the left and the accelerator pedal on the right. She did a few laps clockwise but coming out of the southern corner her kart lost traction and spun 180 degrees. It came to a stop some way down the straight on the western side. Mr Holman came over, put some more petrol in the kart and restarted it for her. Because the kart was now facing in the opposite direction, she resumed her turn going in an anti-clockwise direction. Ms Dixon said she could not recall the exact words exchanged between her and Mr Holman at that time, but said it was not her memory that Mr Holman had asked her to drive the kart to the pit stop and that this would be the end of her turn. She also denied that when she passed the pit stop on the eastern side, Mr Holman waved at her signalling her to stop and ran towards her.

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

29 I accept Ms Dixon's evidence in its entirety. She struck me as a truthful witness who gave her evidence in a careful, soft spoken and measured manner. She was prepared to make admissions, such as that she had made a mistake, and did not try to reconstruct events or colour the evidence in her favour. She said she could not remember the exact conversation between her and Mr Holman when the kart was restarted after the first spin-out and could also not remember what she had said after the kart had hit the tree. It was put to her in cross-examination that she had said 'I should not have done it. I should have listened'. No evidence was eventually given by any witness who had overheard such words.

30 Mr Holman gave evidence that he had sourced the 80 m (or perhaps somewhat longer) shipping rope which formed the inside perimeter of the track from someone he knew at a caravan park, the witches' hats from a friend and three slightly taller traffic bollards from his own possession. He hired the 11 or so Coates plastic barriers and borrowed a truck from a friend to pick them up. The interlocked Coates barriers were to be placed on the southern side to protect spectators standing outside the Church building.

31 Mr Holman recounted that on the morning before the go-karting event he laid out the rope, partially filled the Coates traffic barriers with water after they had been put in place and demarcated the inner perimeter of the north-east corner with four witches' hats next to the rope. Mr Holman gave evidence that to his recollection there had been three 1 m high traffic bollards marking the outer perimeter on the northern corner. However, the still images taken from the videos when the men took their turns shows only one such bollard and two witches' hats on the outer perimeter and two witches' hats on the inner perimeter next to the rope.

32 Mr Holman said he next swept the whole car park to make sure that it was clean and that there were no potholes. After Mr Holdaway had arrived with the two racing karts, Mr Holman test-drove one and realised that the circuit should only be driven in a clockwise direction as there was a slight slope on the northern corner dropping off to the west. He explained that a slight slope would cause the karts to accelerate more quickly. Mr Holman also shortened the straights of the track and made the radius of the northern curve more narrow so that the karts would go around that corner more slowly. He placed one Coates barrier where the pit stop was in order to protect the people standing there waiting for their turn or getting into the next kart.

33 Mr Holman gave evidence that he had been involved in racing go-karts from about 1991 - 1998 and had formed a go-karting club when he was living in Geraldton. He had also assisted setting up a go-karting club and track in Carnarvon. He raced at State and domestic level. He did not renew his licence after 1998, but still assisted at events as a steward and scrutineer of go-karts.

34 Mr Holman said that he was well aware of risk management, as he had done a number of risk management courses when he was employed as electrical supervisor or plant manager with various employers. He understood what risk identification and prevention management involved. He acknowledged that such a process was generally undertaken in writing.

35 Despite Mr Holman's previous exposure to risk management, no formal or written risk assessment was undertaken prior to the go-karting activity. Mr Holman said he met with Mr Topliss on at least one occasion about a week prior to the event. They went out to the car park to discuss where the track would be set up and that they had to block the entrance to the car park. Mr Holman gave evidence that he pointed out the various hazards and how they related to the lay-out of the track and discussed barriers with Mr Topliss. Mr Holman said he planned in his mind where the track would be situated and that barriers were needed to keep the spectators from walking onto the track area.

36 Mr Holman stated that he had considered barriers in addition to the Coates barriers which were placed on the southern end of the track. He said he thought of rubber tyres, wire fences and sand barricading. However he decided against any such barriers because they created a ramp which a go-kart could mount and be catapulted into the air. This is why he decided not to use any barriers other than the barriers on the southern end to protect spectators.

37 Mr Holman gave evidence that he had considered a barrier made of used tyres, but from his recollection of what was in the Kart Manual which he had consulted when he was racing they would have to be five or six tyres high and bolted together. He said it was illegal to dispose of tyres on a standard rubbish tip and one had to pay about $20 per tyre to dispose of them. Mr Holman stated there was in any event not enough time or manpower to construct barriers made of tyres given the time he had to design the track. Mr Holman conceded that he did not consult any Australian Standards or karting manuals.

38 Mr Holman admitted in cross-examination that he knew that most of the participants and particularly the women were inexperienced drivers. He also knew from his experience as a go-kart driver that if one took a corner too fast or had too much power in a corner, one could lose traction and therefore control. The same would happen if one braked while going around a corner. However, he said he was of the view that after shortening the straights of the track he had allowed enough space between the northern corner and the kerb for a driver to lose control or for a spin-out to occur. He stated that he had moved the rope so that the inner corner was one car bay, ie, approximately 3 or 4 m, further from the northern kerb.

39 Mr Holman agreed that the Coates interlocking barriers on the south side were essentially there to protect the spectators. He acknowledged that these barriers in themselves were a risk hazard because a driver could have been injured hitting the stationary barriers.

40 Mr Holman agreed in cross-examination that the still images from the video clips depicting the male drivers only showed one higher traffic bollard and two witches' hats delineating the outer perimeter of the north-eastern corner. The still images taken from the videos depicting the women drivers (exhibit 6) show that the Coates barrier on the eastern side had been removed by the time they took their turns.

41 Mr Holman admitted that he had encouraged the women to drive faster. He also agreed that if one took a corner faster, one was likely to take a wider turn and therefore enter the straight further away from the inner rope. Mr Holman conceded that the video clips showed that two of the women drivers went much closer to the eastern kerb than the men had done, and in fact, one video clip shows that he had to jump out of the way as one woman came straight at him where he was standing near the eastern kerb.

42 Mr Holman conceded that he had not taken any steps to make sure that the inexperienced women drivers did not go too fast around the corners, but said he had taken other safety precautions. He had placed a smaller sprocket on the rear wheels which allowed less rapid acceleration, although it increased the top speed. Mr Holman also explained that he had relied on the collapsible bumpers on the karts to protect the drivers against collision.

43 Mr Holman agreed that he could have put more Coates barriers on the eastern and western side of the track. The barriers on the southern side extended over some 20 m and cost $170 to hire. Accordingly, a further 40 m of barriers could have been obtained at a cost of $214 which would have protected drivers from hitting the kerb on the eastern side or the bollards and trees on the western side.

44 It is apparent from Mr Holman's evidence that he did not consider any additional barriers to be necessary or viable in terms of effort and expense and that in his view the open tarmac spaces on both corners were sufficient to allow for a driver losing control or going into a spin-out.

45 As regards the absence of on-board safety equipment, Mr Holman said he realised that the karts utilised were racing karts which did not have safety belts or rollover protection as is standard on concessional go-karts driven at recreational go-kart venues.

46 Mr Holman gave evidence that in addition to the risk warning given by Mr Topliss to all the participants at morning tea, he also addressed the participants at that time, as well as just before lunchtime. On each occasion he told the participants that these were race karts, that they needed to consider whether they wanted to make use of them, that they had to follow his safety instructions and that there was a risk involved.

47 After the accident Mr Holman was asked to prepare a written risk assessment to be provided to the insurer for the Church. Mr Holman said that he found a Risk Hazard Assessment Checklist for karting events on the internet and converted this to a risk assessment checklist for the event. The checklist gave the initial inspection date as 23 June 2012 and the event date as 25 August 2012. The document does not indicate that it was prepared subsequent to the accident, but it was provided to Ms Dixon's solicitors on the basis that it post-dated the event. Mr Holman said he did not think it important to complete this document accurately as it was only prepared in order to be provided to the insurer of the Church.

48 Under the heading 'Temporary Track - Preliminary Planning' the checklist posed the question: 'Hazards on track/perimeter? (Curbing/trees/loose surfaces/animal access/buildings/spectator/vehicles)'. In the column headed 'Comment/action/control measures' Mr Holman replied to this question: 'Curbing to three sides and posts and trees at outer perimeter. Buildings on two sides, spectators one side'.

49 Another question under the heading 'Temporary Track - Preliminary Planning' was: 'Can Barriers Traffic Cones/Track Direction be used to exclude Hazards?' Mr Holman wrote 'Barriers required as spectators one building end, traffic cones to mark outer edge of track - clockwise only!' A further question under this heading was 'Is Temporary Track suitable for Driver proficiency?' Mr Holman wrote 'Yes, keep track length short to reduce speed - oval shape simple for driver control - no driver visibility obstructions on circuit'.

50 A further heading in the printed form was 'Safety Procedures & Equipment'. One of the questions under this heading was 'Are Barriers/Cones etc, adequate? Do they protect participants and spectators, do they conceal the track or other drivers?' Mr Holman answered 'Y' for 'Yes', but did not provide any detail.

51 The form also had a heading 'Post-Event Assessment' under which was stated 'At completion of scheduled event re-assess event planning, safety, control measures, future changes'. In respect of this Mr Holman wrote: 'Event was highly successful. There were no reportable incidents or injuries - no damage to karts or any property or equipment throughout the main event. However a woman who was part of the event staff insisted on having a drive and failed to follow the instructions given and lost control and collided with a tree, receiving serious injury'. At the end of the form under a heading 'Future Action Plan' Mr Holman wrote 'More barriers could be utilised but need to be careful they don't obstruct driver's vision of other karts and marshals etc'.

52 Mr Holman gave evidence that it was his recollection that Ms Dixon had three turns on the go-kart, one at morning tea time, one at lunch and one when the women had a turn. He agreed that he had shown Ms Dixon the brake on the left and the accelerator on the right and that he had told her that she should not go too slow otherwise there would be too much vibration. However he said he also told her that the kart could accelerate quickly, as it was not a hire kart, but a racing kart. Mr Holman stated that he repeated the same directions to Ms Dixon every time she had a turn.

53 Mr Holman added that he pulled the kart forward while asking Ms Dixon to apply the brake, so that she could see how much brake pressure was required to stop the kart. He said Ms Dixon did quite well on her first turn. She accelerated smoothly and quickly on the straight and braked before the corners.

54 Mr Holman gave evidence that on her last turn, after the other women had a go, Ms Dixon drove very fast. When she came out of the southern corner the kart spun around and stalled facing the inside of the track. Mr Holman said Ms Dixon appeared a bit tired to him and she had rolled three to four lengths backwards because she had released her foot from the brake. He therefore asked her to jump out and walk back to the pit stop. Mr Holman stated that Ms Dixon asked whether she could drive the kart back and he allowed her to, pointing to the pit area. Mr Holman gave evidence that Ms Dixon drove anti-clockwise towards the pit area and slowed down as if to stop, but then turned towards the inner perimeter rope and headed back down the straight to the northern corner. Mr Holman said he raised his hands and ran after her yelling 'Stop' or 'No, no'.

55 Mr Holman saw Ms Dixon accelerate round the northern corner without braking as she had done in the past. The kart started to spin as she came out of the corner and almost came to a stop facing south-west. Mr Holman said he heard the engine accelerate and saw the kart heading straight towards the tree in a south-westerly direction.

56 I accept most of what Mr Holman said in evidence, but where this is contrary to what Ms Dixon recounted, I prefer her evidence. Particularly, I am not persuaded that Mr Holman instructed Ms Dixon after the kart first spun out in the southern corner to get out of the kart and walk back to the pit stop, nor that he subsequently agreed that she could only drive to the pit stop. Mr Holman gave evidence that Ms Dixon pleaded with him to drive back to the pit stop. This was not put to Ms Dixon in cross-examination, nor was it put to her that Mr Holman initially asked her to walk back to the pit stop, nor that she had allowed the kart to roll backwards by three or four lengths at that time. It was simply put to Ms Dixon that she asked Mr Holman if she could drive the kart back to the pit stop.

57 It seems to me that Mr Holman was keen to justify his actions on that day and consciously, or subconsciously, embellished his evidence in order to try and exonerate himself from any blame. This was apparent from a number of matters. Firstly, Mr Holman had prepared computer generated drawings which he provided to Mr Simms, the expert called on behalf of the defendants. The first drawing (exhibit 14) shows seven 1.2 m high traffic bollards indicating the outer perimeter of the track on the northern corner. In his answers to interrogatories sworn by Mr Holman on 17 November 2016 he said that there were eight to ten 1 m high traffic bollards located on the outer edge of the northern corner of the track over a distance of approximately 30 m. In cross-examination Mr Holman agreed that there were at most five traffic devices, three 1.2 m traffic bollards and two witches' hats, indicating the outer perimeter of the northern corner. He further conceded that although his recollection was that there were three 1.2 m traffic bollards, the still images of the male drivers and the video clips of the female drivers only show one 1.2 m traffic bollard and two witches' hats on the outer perimeter of the northern corner.

58 As regards the inner perimeter of the northern corner, Mr Holman stated in the interrogatories that there were six to eight 'smaller traffic bollards' located on the inner edge of the corner, but the still images showing the male participants only depict two witches' hats next to the rope on the northern corner.

59 The drawing prepared by Mr Holman also shows that the Coates barriers on the southern side curved around the south-western corner. In cross-examination Mr Holman conceded that this was not the case. The line of Coates barriers ended approximately in line with the straight.

60 Another drawing prepared by Mr Holman (part of exhibit 14) showed a blue dotted line indicating how Ms Dixon had driven the kart just prior to the accident. This drawing included a fat red stripe, indicating the single Coates barrier on the eastern side. However, Mr Holman conceded that that Coates barrier had been removed by the time that the women took their turns.

61 Secondly, it is apparent from the Risk Hazard Assessment Checklist completed after the event that Mr Holman tried to portray that he was not responsible or to blame for Ms Dixon's accident. The Post Event Assessment stated that the event was highly successful and that there were no reportable incidents or injuries throughout the main event. It noted that a woman, who was part of the events staff, 'insisted' on having a drive and 'failed to follow the instructions'. There was no allegation during the trial that Ms Dixon had insisted on having a go. In fact she said Mr Holman came into the kitchen and offered the women a go on the go-karts and also offered her another turn after the other women had completed their rounds.

62 Thirdly, on 21 November 2014, Mr Holman wrote an email to the principal pastor of the Grace Christian Church, Mr Dale Hewitt, expressing his concern and frustration about Ms Dixon having instituted proceedings against the Church and himself and the perceived lack of support that he had received from the Church. Mr Holman stated in the email that crash protection had been provided at the track perimeter, however Ms Dixon 'chose to drive the track in opposition to instructions'. He also said that speed limiting controls were in place, however Ms Dixon 'chose not to use them as instructed', despite being trained, tested and deemed competent prior to each operation of the kart. During the trial it was apparent that there was no crash protection around the track perimeter, except on the southern corner, and there was no speed limiting control which Ms Dixon could have put into operation.

63 Mr Holman also alleged in the email that Ms Dixon had a previous injury to her leg which had required a plate and that she had not disclosed this to anyone. He stated that the loss of her foot might have been inevitable apart from the karting injury. There was no evidence to this effect during the trial.

64 In conclusion Mr Holman said in the email that he felt very hurt about the whole situation and suggested that since Ms Dixon had started legal proceedings against the Church she should be asked to leave the Church.

65 Mr Holman conceded during cross-examination that the accident was not all Ms Dixon's fault and said the email had been written from an emotional perspective.

66 However, in light of the fact that Mr Holman adjusted the facts on a number of occasions in order to exonerate himself, I do not accept his evidence that he told Ms Dixon to drive the kart back to the pit stop and to stop for the day. Although Ms Dixon could not remember exactly what the conversation with Mr Holman was after the first spin-out, she denied that the expectation was that she would finish her ride at the pit stop, that she unexpectedly accelerated away and that Mr Holman came running after her shouting for her to stop. I prefer the evidence of Ms Dixon in this regard.

67 I also do not accept Mr Holman's evidence that Ms Dixon entered the corner without braking just prior to her accident. It was not put to her in cross-examination that she did not brake on entering the corner or that she was driving faster than before.

68 Mr Leonard Holdaway gave evidence that he had been involved in racing gokarts for some 18 - 20 years. He had known Mr Holman in that context and had raced against him. He said he was not a member of the Church but upon Mr Holman's request agreed to provide his racing kart for the event. He also asked a friend, Mr Neil Gibbons whether he was prepared to provide his kart.

69 Mr Holdaway gave evidence that he was not involved in organising the event or in providing instructions to the participants. However, he stood near the eastern kerb and observed the participants going around the track. He said Ms Dixon looked worried and drove very slowly on her first turn. He then tried to encourage her to go more quickly.

70 Mr Holdaway said when Ms Dixon had her second turn after the other women drivers she drove more quickly and was 'skylarking a bit'. It was not put to Ms Dixon in cross-examination that she was 'skylarking'. Further, this comment by Mr Holdaway does not seem to have any basis in fact. Mr Holdaway stated that after Ms Dixon had skidded on the southern corner she 'decided to turn around and go in the opposite direction'. There was no evidence that Ms Dixon had simply decided to change direction. The evidence was that after the spin-out her kart was facing in an anti-clockwise direction. Mr Holdaway added 'I think Graeme [Holman] was trying to stop her, but I'm not sure about that, and I am pretty sure he tried to say, don't go that way. Go back the other way.'

71 There was no evidence that Mr Holman told Ms Dixon to return to the pit stop in a clockwise direction. Mr Holdaway further added 'I think he was going to get her to come back to the pit'. However, Mr Holdaway did not hear what was discussed between Ms Dixon and Mr Holman after the spin out on the southern corner and it is not clear how much of the events just prior to the accident he observed, because he said he had turned around to pack the second kart away when he heard a noise and saw Ms Dixon going towards the tree. It seems that Mr Holdaway was simply surmising what Mr Holman might have told Ms Dixon after her first spin-out.

72 Mr Holdaway gave evidence that he yelled out for Ms Dixon to stop and Mr Holman was doing the same. They both ran over towards the tree and he and Mr Holman arrived there at about the same time. Mr Holdaway said that Mr Holman came running towards the tree from the northern side while he ran straight across the track.

73 Ms Maureen Holdaway also gave evidence. She said she had accompanied her husband that day and stood around the pit stop area passing helmets and gloves to the participants. She said Mr Holman told every participant, including Ms Dixon, where the brake and accelerator were, to take it easy on the first lap and to watch the corners.

74 Ms Holdaway stated that Ms Dixon had three turns at gokarting, one before the men, one at lunchtime and one later when the karts were about to be packed away. She said that on the last turn Ms Dixon first did a slow lap and then a second lap faster. She gave evidence that Mr Holman called Ms Dixon in to stop, saying 'you'll come in', but Ms Dixon went past. Ms Holdaway said she commented to Mr Holman 'oh, she obviously wants another turn'. This evidence does not accord with Mr Holman's account.

75 Ms Holdaway gave evidence that after this Ms Dixon's kart went into a skid and the kart ended up facing in the opposite direction. Ms Holdaway stated that Ms Dixon 'then just took off for some reason or other in that direction'. At that stage Mr Holman ran towards Ms Dixon shouting for her to stop.

76 It was apparent that Ms Holdaway did not have a very good recollection of the event and seemed to embellish her evidence to some extent. For example, she said Mr Holman had told all participants to take it easy on the first go and to watch the corners. In the video clips taken of the three women participants just prior to start-off, nothing to that effect is said by Mr Holman. On the contrary, Mr Holman told each of the women participants that they had to go quickly.

77 Ms Holdaway also gave evidence that when the women had their turns there were two karts on the track. She said 'you set one off and then the other one is set off afterwards'. The evidence by the other witnesses was that the women were only driving one kart and the video clips show that. Ms Holdaway gave her evidence largely on the basis that this or that 'would' have happened. I would not place too much reliance on her evidence.

78 Ms Gaynor Topliss and Ms Sharon Harris also gave evidence. Ms Topliss said that Mr Holman told her that she had to push down enough on the accelerator to build speed. Ms Harris stated that Mr Holman talked to the women participants standing in a group about having a go on the kart and when she sat in the kart he showed her where the brake and accelerator were and told her to be careful on the corners until she got used to it. However, there is no indication on the video clips that Mr Holman said anything to the effect of being careful on the corners.

79 Mr Roger Kahler, a safety and ergonomic consultant who practises under the name InterSafe in Brisbane, Queensland gave evidence on behalf of Ms Dixon. He has a Bachelor of Mechanical Engineering and is a registered professional engineer. Since 1983 he has investigated accidents and developed models to understand the interaction of people with equipment under particular circumstances. Since 1983 he has investigated more than 3,000 accidents and prepared forensic reports for national and multi-national clients in a variety of industries. He has written many conference papers and given presentations on the topics of risk management and accident prevention.

80 As regards incidents occurring in the area of recreation, Mr Kahler has investigated accidents occurring on speedways, at theme parks, with off-road motorcycles, dodgem karts and go-karts. The go-kart incidents have been in a professional racing context and at recreational facilities, namely in respect of concessional go-kart tracks. Mr Kahler said he could not remember all of the go-kart incidents that he had investigated, but over the last several years he could recall at least three which he had investigated and which had resulted in permanent injury to the driver.

81 Mr Kahler has developed a particular model for risk management which allows for the reduction of the risk at various stages of the developing incident, namely, prior to the prevention of loss of control, subsequently, in order to improve the chances of control being regained, to prevent a damaging exchange of energy occurring and to improve techniques for assisting the person after the injury has occurred. Mr Kahler said this model was very successful and had been adopted by many organisations. However, he explained that this model essentially just required a person doing a risk assessment to consider the potential development of an accident from beginning to end and to provide risk management strategies at the various points.

82 Mr Kahler expressed the opinion that an essential risk prevention measure regarding the go-kart track on the Church's car park would have been to provide crash protection right around the outer track perimeter. He said guidance on what crash protection might be suitable could have been obtained from Australian Standard 3533.4.4:2011 - Amusement Rides and Devices Pt 4.4: Specific Requirements - Concession Karts. He explained that this Standard incorporates parts of an American Standard called ASTM-F 2007-7a - Standard Practice for Design, Manufacture and Operation of Concession Go-Karts and Facilities. It would also have been helpful to consult the 2012 AKA Karting Manual produced by the Australian Karting Association Incorporated. In addition there was a National Circuit Construction and Safety Standards document which could have been consulted. Mr Kahler expressed the view that it was no longer sufficient to have a 'talk-fest' when it came to risk management, but that it was a reasonable expectation that the person or persons considering a risk assessment should consult suitable Australian Standards and manuals to help them understand the risks and the options available for risk prevention.

83 The 2011 Australian Standard for Amusement Rides and Devices states in cl 6.1.9 under the heading 'Concession Go-Kart Track Design and Construction' the following:

6.1.9 All obstacles or walls within 5 metres of tracks shall require barriers, which are capable of stopping a go-kart travelling at full speed in a safe manner to minimise the effect of impact.

Obstacles more than 5 metres from the track shall include similar barriers unless a documented hazard identification and risk assessment, carried out by a competent person, shows that an equivalent outcome can be achieved without barriers.

84 Mr Kahler took into account that the track devised by Mr Holman on the car park of the Church was not a concessional go-kart facility and that the AS3533:2011 did not have direct application. However, he said the Standard was helpful to provide understanding of the risks and guidance on how they could have been minimised.

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

86 Mr Kahler expressed the view that the tyre barrier should have been placed right around the outer perimeter of the track to protect a driver from collision with bollards and trees on the western side and the kerb on the northern and eastern border. He explained that even a low kerb posed a substantial risk if a kart collided with it at high speed as this might result in the driver being ejected sideways. Mr Kahler said the tyre barrier should have been approximately 5 m from the trees on the western side.

87 Mr Kahler expressed the opinion that there was a clear risk involved in inexperienced gokart drivers losing control on the corners. This was because an inexperienced driver was unfamiliar with the lateral acceleration experienced by a gokart on taking a corner as well as with the forward acceleration capability of the kart which was dependent on the power to weight ratio. Mr Kahler explained that lateral acceleration occurs when the kart is pushed sideways by its own forces which makes higher side grip demands on the tyres and causes the rear of the vehicle to slide out. This results in the kart going into a spin or also called a 'yaw'. An inexperienced driver would not be familiar with this phenomenon and the cornering capability of the kart. He said this is why the quality of the outer perimeter protection was critical to the minimisation of damage.

88 Mr Kahler expressed the view that a further risk management strategy was to indicate the outer perimeter of the designated track with rope in order to confine drivers to taking a smaller radius around the corners. He explained that the larger the radius, the more capacity there was for the kart to accelerate. Mr Kahler gave evidence that he could see on the video clips taken of the women drivers that they tended to stick to a tighter radius on the corners during their first lap, but as they gained confidence took a wider radius on the corners. After their first lap two of the women participants drove across the parking bay markings on the outer edge of the tarmac on the eastern and western side. On the basis of this observation Mr Kahler prepared a drawing (figure 4, exhibit 11) which showed that some of the women drivers came down the straight on the eastern side with only approximately 2.5 m between the kart and the kerb and on the western side with only approximately 5 m between the kart and the tree which Ms Dixon eventually hit.

89 Mr Kahler expressed the view that at the very least tyre barriers should have been placed around the trees on the western side. Mr Kahler said that one could readily obtain used tyres for free, but acknowledged that it was difficult to dispose of them. However, he said one could perhaps have made an arrangement that the supplier would take them back or obtained permission from local authorities to dispose of them free of charge. Mr Kahler acknowledged that constructing a tyre barrier involved a bit of work, but expressed the opinion that the risk of hitting a stationary object was so high that the event should not have proceeded without suitable barriers around the perimeter. Mr Kahler was not asked to express a view in relation to the possibility of using Coates barriers partly filled with water as a suitable barrier on the eastern and western side.

90 Mr Kahler stated that in his opinion a third risk management strategy required was to have on-board crash protection such as seatbelts and roll-over protection. These were standard measures in concessional karts, but not in racing karts. Mr Kahler said wearing a helmet and gloves was not sufficient crash protection. He acknowledged that seatbelts and roll-over protection could not have been installed at short notice in a racing kart, but expressed the opinion that the racing karts were not suitable for the amateur event planned by the Church.

91 A fourth risk management issue was identified by Mr Kahler as the problem of 'left foot braking'. He noted that this was not the technique normally used in an automatic (or even manual) vehicle and there was the potential for inexperienced drivers to inadvertently push down on the accelerator with the right foot when intending to brake in line with their normal car driving practices. Mr Kahler said that AS3533:2011 recognised this problem and this is why it prescribed that concessional gokarts should have a red marking to indicate the brake and a green marking to indicate the accelerator.

92 Mr Kahler expressed the view that having heard how the accident developed, it was highly likely that Ms Dixon had over-corrected the steering to the right once the kart started spinning to the left and on realising that the kart was now heading in the direction of the tree had accidentally stepped on the accelerator instead of the brake. Mr Kahler explained that what an experienced driver would have done is to either brake and stop, or to counter-steer to the left to realign the kart and then apply power. However, the actions of counter-steering and realigning the kart required experience and training.

93 Mr Kahler explained that it is a well-recognised phenomenon in the motor vehicle arena that drivers who have unintentionally stepped on the accelerator take some time to reverse that decision and remove their foot off the accelerator. He referred to a report by Schmidt R A, Unintended Acceleration: Human Performance Considerations in Automotive Ergonomics, Taylor & Francis 1993, 431 - 451 which reflected research indicating that 85% of drivers took 3.4 seconds to reverse their unintended acceleration in an unexpected situation, while 50% took 2.5 seconds (the remaining 35% took either longer or shorter than 2.5 seconds). Mr Kahler said that he had done a general estimate on the basis of which it would have taken Ms Dixon 2.5 seconds to travel 8 - 10 m to the tree, even on the assumption that she had only accelerated gently.

94 Counsel for the defendants objected to Mr Kahler relying on the Schmidt report on the basis that Mr Kahler did not have any qualifications as a neuro-psychologist and could not express a view on the validity of this report. However, Mr Kahler was not cross-examined with regard to what the qualifications of the author of the report were and whether the results expressed in that report were valid conclusions based on reliable research. In my view there is no reason why Mr Kahler could not rely on information set out in a report which, on the face of it, deals with research regarding the reaction time of drivers of motor vehicles when responding to unexpected circumstances. This is one of the relevant factors that an expert who deals with the responses of people to machines under certain circumstances and the management of the risks arising from that interaction has to. In any event, whether the Schmidt report is taken into account or not, does not make much difference to the outcome of this case. It simply explains that people tend to not immediately correct their mistakes.

95 Mr Kahler expressed the view that the persons undertaking the risk management for the gokart event should have considered that the inexperienced drivers would be unfamiliar with the position of the kart controls as well as unfamiliar with the lateral and forward acceleration of the kart. This made it imperative that drivers should not only have received clear instructions on the positioning of the kart controls but should also have been told to practice left foot braking.

96 Mr Holman gave evidence that he asked the participants who were waiting in line to practice the left foot braking, but there is no indication on the video clips showing the instructions given to the women that they were asked to practice left foot braking. The three women drivers who gave evidence also said nothing to that effect.

97 Mr Kahler further noted that at concessional gokart facilities the gokarts are fitted with speed limiting controls so that a supervisor on the perimeter of the track can remote-control the limit of a kart's speed or reduce it in order to minimise the risk of damage.

98 Mr Kahler was asked about the effect of the slight slope of the tarmac surface on the north-western corner. However, his view was that the slight camber was not determinative in causing a kart to go into a yaw on coming out of the northern corner. He said the reason why a gokart went into a yaw or started spinning was determined by the steer radius, the speed and the friction of the tyres.

99 Mr Kahler was further asked about water visible on the still images and video clips lying on the surface in the southern corner. Mr Holman gave evidence that some of the Coates barriers had already been tipped upside down by the time the women took their turns and this caused the water spillage. Mr Kahler explained that the tyres of the gokart were small and by the time Ms Dixon had reached the northern corner, any water collected by the tyres on the southern corner would not have had any effect on her losing control on the northern corner. Mr Kahler was not asked whether the water in the southern corner could have caused the first spin-out.

100 Mr Martin Simms, a chartered consulting engineer, practising under the name Martin E Simms & Associates Pty Ltd, gave evidence on behalf of the defendants. He has a degree in mechanical engineering, a diploma in computer studies and certificates in structural drafting, mechanical drafting and mechanical fitting. He has 26 years' experience in private practice investigating industrial and vehicle accidents as well as mechanical failures. He also has 12 years' experience as engineer in charge of the Police Department's licensing division of motor vehicles and as the representative for Western Australian on the Australian Motor Vehicle Certification Board. Mr Simms did not give evidence that he had previously investigated any accidents involving gokarting, but said that he had driven a gokart.

101 Mr Simms agreed that the gokarts had a tendency to slide out at the rear during cornering and said this was made worse if the brake was applied while going around the corner. Because the brake only operated on the rear wheels the tyres would readily lose their grip on braking and the kart would spin out. He acknowledged that a kart could also go into a yaw without the driver braking in the corner. The determinative factors were the speed of the kart, the radius of the corner and the friction of the tyres. Mr Simms agreed that an inexperienced driver would not know at what point the kart would lose traction and that it was a matter of experience to learn 'how far one could go'.

102 Mr Simms also agreed that the wider the radius of the corner the more likely a kart was to spin out and the faster the kart went around the corner the more likely it was to pull wide. He explained that the length of the straight was not determinative with regard to whether a kart might spin out on the corner. He said all drivers slowed down when they got to the corner.

103 Mr Simms expressed the view that the drawing prepared by Mr Kahler (figure 4, exhibit 11) indicating the line of travel that some of the women drivers had taken and which was 2.5 m away from the kerb on the eastern side and 5 m away from the tree that Ms Dixon hit, was not helpful, as it only showed the other female drivers who had travelled clockwise and there was no information on exactly what trajectory Ms Dixon had taken. However Ms Dixon gave evidence that she drove 'as close to the middle' of the tarmac surface between the rope and the soft grassy edge on the western side. This means that she drove wider than the 'designated' track, that is, wider than a trajectory hugging the inner rope.

104 Mr Simms said it was in any event not relevant how Ms Dixon had driven prior to the spin-out, because on the information provided to him, the kart started to straighten out after the spin, but Ms Dixon suddenly accelerated quickly and straight into the tree.

105 Mr Simms was of the opinion that it was not necessary to place barriers around the outer perimeter of the track as there was ample room on either side of the corners to allow for an accidental spin-out and recovery by the driver. He said gokarts spin out quite tightly and 7 - 9 m of space would have been enough. He expressed the view that setting up the track without barriers was perfectly adequate for 'a bunch of blokes just to have a bit of a play with a go-kart.'

106 Mr Simms expressed the view that he could not think of any barrier which would provide a negligible risk if the driver drove off the track and straight into it. He explained that the Coates barriers on the southern side would have posed a similar risk to a tree and would not have significantly reduced the risk of injury. He was of the opinion that a proper tyre barrier which complied with the Australian Standards would be four or five tyres high and that even such a barrier could lead to serious injury. He said he was aware of an incident in Melbourne where a go-kart driver was fatally injured upon hitting such a barrier at low speed. In any event such a barrier would have required hundreds of tyres secured together by bolting and the costs and difficulty of disposing of them would have made that option not viable for a one day event.

107 Mr Simms was of the opinion that visual markers to indicate the outer parameter of the track would not have been helpful because a driver in a gokart sits low and would only look to the inner perimeter in any event when coming around a corner.

108 Mr Simms also indicated that he could not envisage any personal protective equipment which would have substantially reduced the risk of injury.

109 He said a gokart was a very simple device with only a brake and accelerator to operate and that there was not much more to be said by way of instructions other than indicating the brake and the accelerator. Ms Dixon had gone around the track five to six times before and had demonstrated that she could apply the accelerator and brake. Mr Simms agreed that an instruction along the lines of 'don't go too fast in the corners or your kart can spin out' could have been given, but said that 'just about everyone knows that'. He expressed the view that there was no point in explaining to a non-technical person the effects of lateral acceleration as all one could have said was 'this thing goes really quickly' and that would not have provided any useful information. Mr Simms pointed out that according to his instructions some 50 other participants had no problem in using the track after having received basic instructions.

110 Mr Simms acknowledged that if some of the women drivers had driven as close as 2.5m to the eastern kerb, that would have posed a risk hazard. He conceded that these drivers should have been told to go slower, not faster, as going faster increased the risk of spin-out on the corners.

111 Mr Simms stated that AS3533:2011 only applied to concessional gokarts as it specifically said so. He had relied in his reports on an earlier version of that standard, dated 1997, because that did not specifically refer to concessional gokarts. The 1997 standard required not only a barrier but also a fence outside the barrier to prevent parts of a barrier dislocated upon a kart crashing into it making contact with spectators. He said in his view a provision of a barrier plus a fence was unrealistic in the circumstances.

112 Mr Simms was of the opinion that either one applied an Australian Standard in its totality, or if it was not fully applicable, one did not apply it at all. He said it was unrealistic for a private one day event to comply with the barrier requirements laid down in the Australian Standard.

113 Mr Simms explained that seatbelts could not have been retro-fitted into the kart and roll-over protection was irrelevant to the manner in which the accident occurred.

114 Mr Simms was of the view that the Risk Hazard Assessment Checklist completed by Mr Holman had been adequate for the event. However he did not realise that the document had only been completed after the accident.

115 Mr Simms expressed the opinion that a reasonable risk assessment would have taken into account that an inexperienced driver might spin out on a corner or run wide, but not that a driver would accelerate off the track and into a tree without taking evasive action.

116 Mr Simms conceded that in hindsight it might have been desirable to provide some kind of buffer in front of the two trees on the western side, but was of the view that there was no certainty that any barrier would have eliminated the risk of injury if a driver accelerated straight off the track and into the barrier.

117 I prefer the evidence given by Mr Kahler to that of Mr Simms. Mr Kahler gave detailed and well-reasoned explanations for the conclusions that he reached. His essential conclusion that it was just too dangerous to allow inexperienced drivers to utilise a track which had no barriers and that a risk assessment should have considered the unpredictability of a driver's reaction on losing control in a corner makes entirely sense on the basis of the information and explanations provided by him.

118 Mr Simms, on the other hand, seems to have proceeded from the understanding that Ms Dixon, for some or other reason, purposefully decided to accelerate and did not steer the kart away from the direction of the tree. He acknowledged that it was highly unpredictable what an inexperienced driver would do upon losing control in a corner, but he does not seem to have considered it important that the person doing the risk assessment take into account that an inexperienced driver might inadvertently react in an inappropriate manner and particularly that an inexperienced driver might accidentally step on the accelerator.

119 In my view, the fact that Ms Dixon accidentally stepped on the accelerator was an important part of the real cause of the accident. Mr Kahler identified that the 'left foot braking' was a risk that should have been considered during the risk management phase and that this problem should have been highlighted to the participants during the instructions. He suggested that participants should have been asked to practice the left foot braking.

120 Mr Simms, on the other hand, did not deal with the issue of inexperienced drivers inadvertently doing inappropriate things, and particularly the possibility of them accidentally stepping on the accelerator. He was of the view that there was ample space around the corners for drivers who experienced a spin-out to regain control of their karts. However, this assumes that the inexperienced drivers had adequate insight into what they should be doing to correct the trajectory of the kart and sufficient skills to implement that in a very short timeframe and under the stress of things going wrong. I do not accept his view that a reasonable risk assessment did not have to take into account the risk of inexperienced drivers losing control on a corner and veering off the track in the process of trying to regain control whilst under pressure.

121 Mr Simms said that the design of the track was adequate for 'a bunch of blokes just to have a bit of a play with a go-kart.' This statement highlights that he did not consider it important that the risk of inexperienced drivers doing strange things upon losing control to the extent that they might veer totally off the track should have been taken into account.

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

123 I also do not accept Mr Simms' view that the Australian Standards had no role to play as this was not a concessional go-kart track. I accept that Australian Standards are in any event a guide, but cannot dictate the standard of reasonable care required in the circumstances of individual cases: Jones v Bartlett (2000) 176 ALR 137 [110]. Nevertheless, an Australian Standard represents the consensus of professional opinion and practical experience as to sensible safety precautions and the standard of reasonable conduct: Onetech Pty Ltd v Shaw [1999] WASCA 289 [17].

124 It was not in dispute that AS3533:2011 strictly speaking only applies to concessional go-kart tracks. But it makes sense, as Mr Kahler said, that a risk assessment cannot be done in a vacuum where people just rely on their general knowledge and experience, but that Australian Standards or kart manuals applicable to concessional go-karts should have been consulted to highlight potential risks and suitable precautions. Mr Holman's experience of go-karts had been in the context of being a racing driver. It would have been helpful for him to again consider the risks discussed in relation to a concessional go-kart track which is presumably used to a large extent by amateur drivers.

125 It does not make sense, as Mr Simms alleged, that one either applies an Australian Standard in its totality or ignores any recommendations made in it. It is also strange that Mr Simms said he relied on the 1997 version of AS3533 because this was not specifically stated to be applicable to concessional go-karts, but then rejected reliance on this Standard because it contained even more stringent requirements, namely a fence on the outside of the barriers.

126 The parties agreed that the Church and Mr Holman each owed a duty of care to Ms Dixon to take all reasonable steps to ensure that the go-karting activity was safe for participating drivers.

127 The question whether this duty of care was breached is regulated by s 5B of the CLA which provides as follows:

(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(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;

(d) the social utility of the activity that creates the risk of harm.

128 It is well established law that in assessing whether a defendant was negligent the court needs to consider prospectively what risks a reasonable person would have or ought to have foreseen and what a reasonable person would have done to avoid the risk of injury. It is not helpful to make this determination retrospectively, once it is known how the accident occurred. Because the inquiry is prospective, the court should not focus on the particular place or the specific manner in which the accident occurred, but consider to what extent it would have been reasonable to take precautions to guard against all foreseeable ways of the risk of injury occurring: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [126] - [129].

129 In Shaw v Thomas [2010] NSWCA 169 [42] Macfarlan JA (Beazley & Tobias JJA agreeing) noted, with reference to the equivalent section in the Civil Liability Act 2002 (NSW) (the NSW Act), that it was also important not to define the risk of harm too narrowly, in other words not in terms of the exact detail in which the risk materialised. In Shaw the appellants were sued when a friend of their son fell from a bunk bed because there was no ladder which he could have used to climb down from the top bunk. The appellant sought to characterise the risk as being the risk that the friend 'during his stay at the appellants' home, would climb onto the top bunk and try and get down by stepping on the chest of drawers, slipping and falling and suffering a serious head injury'. In considering whether the risk was not insignificant Macfarlan JA rejected this characterisation of the risk as too narrow and held that it was better defined as the risk of the friend falling and injuring himself whilst descending from the top bunk.

130 Although the test under s 5B of the CLA is objective because the court needs to consider what a reasonable person would have done, the test also has a subjective element, as the reasonable person in the defendant's position needs to be considered. Where the plaintiff is known to the defendant this means that the relationship between the plaintiff and the defendant and the defendant's knowledge of the circumstances and characteristics of the plaintiff are relevant: Shaw [40]. In this case the Church and Mr Holman certainly knew that at least some of the participants, including the four women, were potentially total novices at go-kart driving.

131 Mr Topliss, who organised the conference on behalf of the Church left most of the planning and organisation of the go-karting event to Mr Holman. He did ask Mr Holman to do a risk assessment and had a meeting with him approximately one week prior to the event to discuss the layout of the track on the car park. He announced the go-karting event on the morning of the conference and advised that participation would be at the drivers' own risk. Mr Topliss also prepared a schedule, called the 'run-sheet' for the conference. This referred to 'go-karts ridden at own risk/all care taken see Mr Holman'. There was no evidence whether this run sheet was handed to the participants or not.

132 I have no doubt that Mr Holman devised and planned the go-karting activity with best intentions to make the conference more interesting for its participants and promote the aims of the Church to engage more young men in the conference and its teachings. He acted, as one would, if one tries to provide a free fun activity for charitable purposes without spending too much money. He sourced equipment from friends and acquaintances with the aim of spending a minimum of money and effort.

133 However, unfortunately he did not adequately think through the risks of putting together the volatile mix of inexperienced drivers, racing karts and a totally unprotected track. With a bit of luck, the whole event would have proceeded without any major incident. But where one undertakes the responsibility to allow ordinary members of society who do not have knowledge of or the skills to operate a racing go-kart to partake in an activity which does pose risks of injury, the duty arises to think through carefully what all potential risks are and take all reasonable steps to make sure that the activity is safe and the risk of injury minimised.

134 During closing submissions the parties agreed that the relevant risk of the go-karting activity on the Church's car park should be defined as the risk that an inexperienced participant might lose control, veer off the 'designated' track, collide with a stationary object on the perimeter of the car park and suffer a serious injury.

135 A particular risk is foreseeable if it was not 'far-fetched or fanciful': Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47. The risk of an inexperienced participant losing control, veering off the track, colliding with a stationary object and suffering serious injury was not far-fetched or fanciful. It was also foreseeable that a novice driver might do something inappropriate when confronted with having to make a split second decision in an unexpected situation. In Bus v Sydney County Council (1989) 167 CLR 78, 90, Mason CJ, Deane, Dawson and Toohey JJ stated that the law had progressed by placing an increased emphasis on the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care was owed. That possibility was recognised as being relevant to the standard of care owed by an employer to an employee as well as generally in situations in which a duty of care existed.

136 If Mr Topliss and Mr Holman did not foresee the risk of a driver losing control, veering off the track, hitting a stationary object on the edge of the car park and suffering serious injury, they certainly ought to have done so.

137 The risk was also not insignificant. The additional requirement that the risk be 'not insignificant' was added by s 5B of the CLA to the common law concept of foreseeability. In Shaw Macfarlan JA held that this requirement imposed a 'more demanding standard' than the concept of foreseeability at common law, but 'not by much' [44]. It cannot be said that the possibility of an inexperienced driver losing control and veering off the track was insignificant.

138 In determining whether a reasonable person in the position of the defendants would have taken precautions against that risk the court has to consider, amongst other things, the four factors listed in s 5B(2) of the CLA.

139 The first factor is the probability that the harm would occur if care was not taken. I accept that the probability of a participant incurring serious injury was relatively low, but only on the basis that all participants would manage to steer the go-karts safely around the corners, remain on the 'designated' track and not be confronted with any unusual situation demanding a higher level of skill and control. However, it was clearly foreseeable that a novice driver might lose control on a corner or elsewhere and might not have the skills to right the situation prior to veering off the track. There was a real chance that something could go wrong, whether it be a driver being unable to control a kart in a panic situation, a mechanical fault occurring or another driver or spectator acting negligently and that this could cause a participant to veer off the 'designated' track. In such an event the probability of the participant hitting a bollard or tree on the western side or the kerb on the northern and eastern side was significant.

140 The second factor is the likely seriousness of the harm. The likely seriousness of any injury received by a participant who veered off the 'designated' track and hit one of the stationary obstacles on the perimeter of the car park was clearly high. Mr Kahler estimated the speed of the women drivers at between 24 and 36 km/h on the basis of how much time they took on the video clips to travel down the straight (which stretched over eight car parks, assumed by him to be of a standard width of 2.5 m). Mr Simms agreed that this was a reasonable estimate. This is not a high-speed for a motor vehicle, but it is different if one sits in a go-kart on a seat 30cm from the ground, unrestrained and with no surrounding protection (except a collapsible bumper). Mr Kahler indicated that at this speed a collision with a stationary object such as a bollard or a tree which did not 'absorb any energy' or with the vertical edge of a kerb 'could do an awful lot of damage to people.'

141 The third factor is the burden of taking precautions to avoid the risk of harm. The burden of taking adequate precautions by at least placing a tyre barrier around the perimeter of the track was not excessive. Mr Kahler stated that an average car tyre is 60 mm wide, which means that 100 tyres would have provided a 30 m barrier on each of the eastern and western sides. Mr Kahler also suggested some possibilities of disposal of these tyres without having to pay the $20 tipping fee per tyre which Mr Holman had estimated. However, even if the tyres had to be disposed at $20 per tyre, this would have amounted to a total cost of $2,000.

142 Mr Topliss had prepared a budget for the conference which he emailed to Mr Holman and Pastor Hewitt on 22 August 2012. The budget showed an income of $8,305, a cost of $107.25 for the Coates barriers, $2,000 for the speaker's fee and a surplus of $2,310.68. In the email Mr Topliss indicated that the estimated costs were well under budget so that 'any other costs/expenditure is not a problem'. This shows that the matter of the costs of disposing of the tyres was not a real issue.

DIXON -v- APOSTOLIC CHURCH AUSTRALIA LIMITED [2017] WADC 88 (29 June 2017)

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DIXON -v- APOSTOLIC CHURCH AUSTRALIA LIMITED [2017] WADC 88 (29 June 2017)

Legislation Cited (5)

Cases Cited (9)