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)

Civil Liability Act 2002 s 5B, s 5C, s 5E, s 5F, s 5H, s 5I, s 5K, s 5O

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

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

Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418

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

Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269

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.

1. 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;

(c) provide adequate instructions and training to Ms Dixon;

(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.

1. 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.
2. 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.
3. 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.
4. 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

(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;

(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.

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.

143 Mr Holman said in evidence that there was not enough time or manpower to construct barriers made of tyres given the time he had to design the track. However, this just illustrates that more time and effort should have gone into the risk management process.

144 Mr Holman agreed that he could also have put more Coates barriers on the eastern and western side of the track at a total cost of $214. Mr Kahler was not asked to express an opinion on placing Coates barriers on the eastern and western side, but Mr Simms said they would pose a risk of injury in themselves if a kart collided with them at speed. However, Mr Holman gave evidence that the Coates barriers on the southern side were only partially filled with water and this would obviously have lessened the force of impact while still allowing for a deceleration of a kart heading for the trees or bollards on the western side.

145 The fourth factor is the social utility of the activity that creates the risk of harm. It has often been accepted that recreational activities have a social utility, for example, in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [15]. However, these findings were usually made in the context of facilities being provided by a defendant on an ongoing basis for people to engage in individual fitness activities or team sport. The social utility of the go-karting activity which formed part of the conference has to be considered not in the context of whether the provision of go-karting facilities has social utility, but whether there was social utility in providing this one-off activity at the men's conference presented by the Church.

146 Obviously it would have been interesting and fun for the participants to have the opportunity to try out go-karting over the lunch break and this activity fitted in well with the theme of the conference being 'Accelerate'. However, there was no evidence as to whether the conference was advertised on the basis that it would include the go-karting activity and whether it therefore enticed more participants to partake in the conference than might otherwise have been the case. The conference could readily have proceeded without this fun activity over lunchtime. In my view the social utility of the go-karting activity on that day was limited.

147 Having considered the requirements and factors listed in s 5B of the CLA, I have come to the conclusion the Church, as represented by Mr Topliss, and Mr Holman were negligent in a number of respects. Firstly, they did not carry out an adequate risk assessment. Allowing amateur drivers, some of which were likely to be novices, to drive racing karts on an improvised track in a car park should have raised sufficient concern about the risk of serious injury to cause the organisers of the conference to sit down, discuss the potential risks in detail, preferably with reference to some guidelines such as the Australian Standards or kart manuals, and to have documented the risks and suggested precautions to be taken. None of this occurred. Mr Topliss and Mr Holman had an informal discussion on the car park approximately a week before the event about where the track would go and what barriers would be required for the spectators.

148 It is quite apparent from the Risk Hazard Assessment Checklist prepared by Mr Holman after the event that he did not properly consider barriers other than those protecting spectators. With regard to question 7.2 asking whether barriers were adequate to protect participants and spectators, Mr Holman answered 'yes', but provided no details. He also wrote under the heading 'Future Action Plan' that more barriers could be utilised. He added 'but need to be careful they don't obstruct driver's vision of other karts and marshals', but that would not have been an issue if the barriers were on the outer perimeter of the tarmac area.

149 Secondly, the Church and Mr Holman did not take into consideration the risk that amateur, and particularly novice, drivers might do something out of the ordinary, in the sense of something which an experienced racing driver was not likely to do, when faced with an unexpected stressful situation. In particular, the Church and Mr Holman should have taken into account that inexperienced drivers might accidentally use their right foot to operate the brake, particularly when they had to make a split second decision under pressure, as this is what they were subconsciously programmed to do while driving a car.

150 This does not mean that the risk is identified with hindsight. It is well-known that people accidentally hit the accelerator in a car even if they are not faced with the additional demand of using a different foot. Mr Kahler gave evidence that the 'left foot braking' problem was well recognised in respect of concessional go-karts. In my view, the risk of a novice driver accidentally hitting the brake would have loomed large, if Mr Topliss and Mr Holman had spent some time to talk through the potential risks, particularly with reference to the Australian Standards and the Kart Manual.

151 Thirdly, the Church and Mr Holman did not take any steps to guard against the risk of an inexperienced driver losing control and veering right off the 'designated' track. No barriers were installed on the outer perimeter of the car park to prevent out of control go-karts from hitting stationary objects such as the bollards and trees or the kerb on the northern and eastern side.

152 Fourthly, the instructions given to the women participants, including Ms Dixon were inadequate. Mr Holman showed Ms Dixon where the brake was and where the accelerator was, but did not highlight the problem that one could very easily use the right foot to accidentally step on the accelerator as this is what one's mind was programmed to do. An instruction to the effect of 'be very careful not to use your right foot when you want to brake as you do in your car, because you are then stepping on the accelerator' could readily have been given. It could be said that the need for such an instructions is only apparent with hindsight, but in my view this was something that was a very real risk that any experienced go-kart driver should have focused on when considering the potential risks of novice drivers taking part in the go-karting activity. Mr Kahler focused on this and emphasised that this was a matter recognised in the Australian Standard which required the brake to be indicated by a red mark and the accelerator in green.

153 The participants, including Ms Dixon, were also not provided with any instructions on how to negotiate the corners safely. Mr Simms gave evidence that there was no point in telling participants not to go too fast around the corners or their kart could spin out because 'just about everyone knows that'. I do not agree that someone who had never driven a go-kart before would know that. It would be obvious to an inexperienced driver not to go around the corners too fast, but instructions on how to brake before the corner and not to accelerate again until one comes out of the corner, because braking in the corner makes the rear of the kart slide out, would have been helpful.

154 Fifthly, the participants, including Ms Dixon, were not warned of the potential risk of incurring serious injury if the kart left the track and collided with a stationary object. I shall deal later with whether this was an obvious risk which did not require a warning.

155 Sixthly, the go-karts should not have been used without on-board safety protection, such as safety belts and roll-over protection which is standard on concessional go-karts. The problem was that Mr Holman obtained two racing karts which were not furnished with this safety equipment and it was not feasible to have this installed for a one day event. However, this simply means that the racing karts were not suitable for the amateur drivers.

156 The question whether the defendants' negligence caused the injury suffered by Ms Dixon is now governed by s 5C of the CLA. This section provides as follows:

(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -

(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and

(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).

(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -

(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and

(b) whether and why the harm should be left to lie where it fell.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -

(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and

(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.

157 The determination of causation under the CLA accords with the common law: Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 [89].

158 In order to prove factual causation under s 5C(1)(a) the 'but-for' test applies and Ms Dixon has to establish on a balance of probabilities that she would not have suffered the particular harm but for the defendants' negligence: Strong v Woolworths Ltd (t/as Big W) [2012] HCA 5; (2012) 285 ALR 420 [18] and [32]. The second requirement under s 5C(1)(b) calls for a determination that it is appropriate for the scope of the defendants' liability to extend to the particular harm. This requirement does not pose any particular difficulty in this case. If, but for the defendants' negligence Ms Dixon would not have suffered her injury, it is appropriate that the defendant's liability extend to that injury.

159 The negligent conduct by Mr Topliss on behalf of the Church and Mr Holman in not conducting a proper risk assessment caused the particular injury. If they had undertaken a proper risk assessment, they would have realised that it was too dangerous to allow amateur, and particularly novice, drivers to operate the race karts around a track which had no perimeter protection. In that event they would either have obtained perimeter protection, even if that was at some cost, or they would have concluded that unfortunately the go-karting activity on the car park was not viable.

160 Similarly, if Mr Topliss and Mr Holman had considered the risk of a novice driver losing control on a corner and doing something inappropriate in an unexpected stressful situation, such as accidentally hitting the accelerator instead of the brake, they would have realised that barriers around the perimeter of the car park were required and if tyre barriers had been installed, Ms Dixon's injury would not have occurred at the level of seriousness which materialised.

161 It is more difficult to say whether Ms Dixon would not have made the accidental mistake of stepping on the accelerator if the problem of it being engrained in car drivers to use their right foot when braking had been emphasised as part of the instructions to her. It seems to me that if this had been duly pointed out to all of the participants and Ms Dixon, she would have heard it on a number of occasions and would have focused her mind on this. Mr Holdaway gave evidence that she drove slowly and a bit over-anxiously on the first turn. It is likely that if this problem had been emphasised to the participants Ms Dixon would have taken it on board and would not have made this inadvertent mistake.

162 The novice women drivers were also given no instructions on how to negotiate the corners, about the effect of lateral acceleration and the risk of this being increased if one stepped on the brake going around a corner. It is difficult to say whether Ms Dixon would not have lost control on coming around the northern corner if she had been given better instructions on how to tackle the corners. Accordingly, I am not satisfied on a balance of probabilities that if better instructions on how to negotiate the corners had been given, Ms Dixon would not have suffered the injury.

163 It is also not possible to say whether Ms Dixon's injury would still have occurred if the go-karts had been concessional go-karts with safety belts and roll-over protection. There was no evidence to this effect and the possibility of obtaining concessional go-karts was not canvassed at the trial. However, Mr Kahler's opinion was that the go-karting activity should not have taken place if only race karts were available. If the defendants had abandoned the idea of a go-karting activity upon realising that race karts were not appropriate, Ms Dixon's injury would not have occurred.

164 The main aspects of negligence, the failure to conduct a proper risk assessment, the failure to recognise the problem of left foot braking and the absence of proper instructions with regard to that risk, the failure to place barriers around the outer perimeter of the track and the failure to abandon the activity on the basis that racing go-karts were not suitable for amateur drivers each caused Ms Dixon's injury.

Whether the go-karting was a dangerous recreational activity

165 Section 5H of the CLA provides that a defendant is not liable for harm which is the result of something that is an obvious risk of a dangerous recreational activity. The wording of the section is as follows:

5H**. No liability for harm from obvious risks of dangerous recreational activities**

(1) A person (the defendant) is not liable for harm caused by the defendant's fault suffered by another person (the plaintiff) while the plaintiff engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity.

(2) This section applies whether or not the plaintiff was aware of the risk.

(a) the plaintiff has requested advice or information about the risk from the defendant; or

(b) the defendant is required by a written law to warn the plaintiff of the risk.

(4) Subsection (3) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

166 Before this section can have any application, it has to be decided whether the go-karting activity engaged in by Ms Dixon was a dangerous recreational activity. The parties agreed that the go-karting activity was a recreational activity, but Ms Dixon denied that it had been dangerous.

167 A 'dangerous recreational activity' is defined in s 5E of the CLA as follows:

a recreational activity that involves a significant risk of harm.

168 A number of cases decided by the New South Wales Court of Appeal deal with the definition of 'dangerous recreational activity' as it appears in s 5K of the NSW Act. This definition is essentially the same as the definition in s 5E of the CLA, apart from the fact that the word 'physical' appears before the word 'harm' in the NSW Act.

169 In Falvo v Australian Oztag Sports Association [2006] NSWCA 17 [28] - [31] Ipp JA (Hunt AJA and Adams J agreeing) held that the word 'significant' refers not only to the risk, but also to the physical harm. It was therefore necessary to identify the nature and degree of the harm that might be suffered during the activity as well as the likelihood of the risk materialising. However, the expression constituted one concept, with the risk and the harm mutually informing each other. On that basis the risk of physical harm might be significant even if the risk was low but the potential harm was catastrophic. The risk would also be significant if the likelihood of both the occurrence and the harm was more than trivial. On the other hand, the risk of harm would not be significant, despite the potentially catastrophic nature of the harm, if the risk was very slight.

170 Ipp JA came to the conclusion that Oztag, a form of touch rugby, was designed to reduce physical contact between players and involved no risk of being struck by a hard ball. It was therefore not a dangerous recreational activity [33].

171 In Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 [13] - [18] Ipp JA expanded on the meaning of the definition of a 'dangerous recreational activity' by saying that a 'significant risk' did not mean a risk that was likely to occur. The term referred to a standard lying somewhere between a trivial risk and a risk likely to materialise.

172 Tobias JA stated that a 'significant' risk was one that was not merely trivial, but, generally speaking, one which had a real chance of materialising [90].

173 Ipp JA held that an objective test was required to determine whether an activity was dangerous [13]. However, the nature of the recreational activity was to be determined by reference to the particular activities actually engaged in by the plaintiff at the relevant time [43] - [47].

174 Tobias JA agreed that the scope of the activity had to be determined by reference to the particular activities engaged in by the plaintiff at the relevant time, being the period immediately prior to the plaintiff suffering the harm. Tobias JA added that the identification of the particular activity engaged in by the plaintiff should be undertaken at a relatively detailed level of abstraction, that is, by not only looking at the particular conduct engaged in by the plaintiff but also at the circumstances which provided the context in which that conduct occurred [92]. It was inappropriate to adopt a theoretical or general level of abstraction when characterising the relevant activity [97].

175 In Fallas v Mourlas the plaintiff was accidentally shot by his friend while sitting in the car holding a spotlight for his friend and others so they could shoot kangaroos. Ipp JA and Tobias JA came to the conclusion that the plaintiff had engaged in a dangerous activity, essentially because the participants in the activity had been drinking, were not country people experienced at shooting and there was a significant risk that in the confined space of the car a loaded gun might accidentally discharge and cause serious injury to the plaintiff, which was the risk that materialised [79] and [95].

176 Basten JA was of the view that the defendant had not established on the evidence that it was a dangerous activity [148].

177 Both Ipp JA [24] and Basten JA [122] held that the burden of proving that it was a dangerous recreational activity because a significant risk of harm existed was on the defendant.

178 In Lormine Pty Ltd v Xuereb [2006] NSWCA 200 [31] - [33] Mason P (McColl JA & Hunt AJA agreeing) also held that the characterisation of the activity should take place in the particular context in which the plaintiff had placed himself or herself. Although s 5L(2) provided that it was not relevant whether or not the plaintiff was aware of the risk (the equivalent section is s 5H(2) of the CLA), the question whether the activity was dangerous should be assessed from the perspective of what the defendants had or had not represented would be involved.

179 In Lormine the plaintiff took part in a dolphin watching cruise. The ship owner's brochure had referred to 'calm ocean waters ... suitable for people of all ages'. Once out at sea the captain invited willing passengers to sit on the forward deck near the bow holding onto the rails. The captain was negligent because he did not see a big wave coming which swept the plaintiff astern, slamming her back into the rear of the bow area and causing her severe injuries. Mason P held that there was nothing to suggest to the reasonable reader of the brochure that the vessel would go into conditions where getting swamped by a wave was one of the thrills of the cruise. Accordingly the dolphin watching activity could not be classified as a dangerous recreational activity.

180 In Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355 [37] - 38] Macfarlan JA (Simpson JA & Campbell AJA agreeing) came to the conclusion that the quad biking activity that the plaintiff had engaged in was not a dangerous recreational activity. One of the matters that the court took into account was that the defendants' website stated that quad bike riding was 'surprisingly easy', that riders would receive a safety briefing, that individual instructions on how to control and manage the bike would be given, that there would be some practical training and assessments on the defendants' confidence-building course and that the bikes were fully automatic and easy to ride and use.

181 The 12-year-old plaintiff fell off the quad bike and suffered injuries when she tried to follow the group instructor who had accelerated substantially on their return to the administration centre after an excursion. The group instructor was held to have been negligent because he accelerated to a speed that was excessive in the circumstances [25].

182 In Holroyd City Council v Zaiter [2014] NSWCA 109 a 9-year-old plaintiff rode his bicycle across a grassed area which was the shortest route from a bicycle track to the sports grounds. The grassed area had an initial gentle slope which became gradually steeper with a flat grass section at the bottom and immediately after that an unfenced 2 m deep concrete channel. The plaintiff lost control going down the steep slope and was unable to stop on the 8 m wide flat grass area. The council was held to have been negligent in not fencing the concrete channel.

183 Hoeben JA (Gleeson JA agreeing) held that the riding of a bike on a grass slope, even without a helmet, was objectively speaking not a dangerous recreational activity [48]. It might have been if the plaintiff had ridden his bike without a helmet on a busy road or in a bicycle race. Emmett JA came to the same conclusion even though his Honour defined the activity more specifically as riding an unfamiliar bicycle down a steep grassed slope towards a concrete channel [114].

184 In Edwards v Consolidated Broken Hill Ltd [2005] NSWSC 301 [24] Grove J held that riding a bicycle was not a dangerous recreational activity. The plaintiff's fall from the bridge was not a risk of bicycle riding as such, but a risk created by the defendant's activity in allowing the storing of rail carts on the bridge.

185 In Laoulach v Ibrahim [2011] NSWCA 402 Tobias AJA (Giles & Macfarlan JJA agreeing) held that the issue whether an activity was a 'dangerous recreational activity' had to be judged prospectively and not retrospectively. The question was whether there was a real chance of the risk materialising [122].

186 In Laoulach the plaintiff dived from the bow of a vessel moored 50 - 60 m from the shoreline. He had previously dived off the vessel, but when it was moored in a different position. He had also observed other people safely dive off the vessel after it had anchored in the second position. Tobias AJA came to the conclusion that the risk of the plaintiff suffering serious injury on diving from the vessel was so low that it could not be said that there was a real chance of it materialising. Accordingly, the activity was not a dangerous recreational activity [123] - [124].

187 On the other hand, in Jaber v Rockdale City Council [2008] NSWCA 98 Tobias JA (Campbell JA & Handley AJA agreeing) held that the plaintiff's activity of diving into the water from a bollard situated on a wharf, 2 - 3 m above the surface of the water, was a dangerous recreational activity because there was a real chance of a significant injury occurring if the water was not deep enough [53] - [55].

188 In Streller v Albury City Council [2013] NSWCA 348 Meagher JA (Ward & Emmett JJA agreeing) came to the conclusion that it was a dangerous recreational activity to backflip from a rope swing into the river because the chance of the plaintiff hitting the river bed was real and the consequences potentially catastrophic. Even though the plaintiff had observed others jumping into the river from the rope swing, the depth of the water where he would land and exactly where and how he would enter the water were unknown [2], [50].

189 In Vreman and Morris v Albury City Council [2011] NSWSC 39 [85] - [89] Harrison J held that a plaintiff who was injured while attempting a jump on a BMX bike at a skate park was engaged in a dangerous recreational activity. It was dangerous because the course involved an accelerated entry from a raised platform, the rider negotiating a raised obstacle in the form of a fun box and performing a jump or other trick in the air, and there was an inherent risk that the jump would not go as planned and the landing might lead to a fall causing serious injury.

190 In my view if the approach adopted in Lormine and Alameddine is followed and it is taking into account how the particular activity was represented to a reasonable participant, the go-karting activity on the Church's car park was not a dangerous recreational activity. To a reasonable person considering whether he or she wanted to take part in that activity, it appeared to involve driving at a comfortable speed, without racing, around the track by hugging the inner rope. Some barriers were in place on the southern corner which indicated that the track had been made safe.

191 The women who had been working in the kitchen were invited by Mr Holman to have a ride which clearly conveyed to them that it was a safe activity even for novice drivers. Nothing that had been said during the announcement of the go-karting activity in the morning of the conference or during the instructions given by Mr Holman to the women participants indicated that they were trying their hand at a dangerous activity.

192 The go-karting activity did not inherently involve a significant risk of harm. By the time that the women took their turns, there was only one go-kart on the track at any time so the risk of collision or distraction was excluded. It was an inherent risk that a driver might fall out of the go-kart or that it might overturn, but there was no evidence that there was a real chance of such a risk materialising or that it would have caused serious injury. As Mr Holdaway explained to Ms Harris, even going into a spin after a corner was not something to be afraid of as the kart would simply spin out.

193 The real risk of serious harm occurring on this particular track was the risk of a participant losing control, veering off the track and hitting a stationary object on the outer perimeter of the car park. That was a risk caused by the negligence of the defendants when they set up the track without perimeter barriers and did not conduct a proper risk assessment. In my view this was not a risk inherent in the go-karting activity. It was caused by the negligence of the defendants, similar to the ship's captain not watching out for the wave in the Lormine case, the council not fencing the concrete channel in the Zaiter case, the instructor setting an inappropriately fast pace in the Alameddine case and the defendant allowing the storing of rail carts on the bridge in the Edwards case.

194 Accordingly, I am of the view that the go-karting activity was not a dangerous recreational activity.

195 However, in case I am wrong, and the go-karting activity can be said to have been dangerous because of the manner in which it was set up on the car park without barriers around the perimeter of the track, I shall also consider whether the defendants are not liable for the harm suffered by Ms Dixon because it was the result of something that was an obvious risk of that activity.

Whether Ms Dixon's harm was caused by something that was an obvious risk

196 An 'obvious risk' is defined in s 5F of the CLA as follows:

(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.

197 In C G Maloney v Hutton-Potts [2006] NSWCA 136 [172] - [176] Bryson JA (McColl JA agreeing) held in respect of s 5F (the equivalent section in the NSW Act to s 5F of the CLA), that the particular risk had to be identified with some degree of specificity. In that case the plaintiff was injured when she slipped on a blob of unbuffered polish left on the hotel's wooden floor by a cleaner who was still working nearby. Bryson JA held that the risk which materialised was that there might be polishing material left on the floor which was not visible. It was not correct to identify the risk in terms of a recently polished floor being slippery.

198 In Carey v Lake Macquarie City Council [2007] NSWCA 4 [91], [93] McClellan CJ (McColl JA & McDougall J agreeing) referred to the decision in Hutton-Potts and noted that there was no point in asking what risks were obvious, until the risk which materialised was identified. The relevant question to be asked was whether the particular activity of the plaintiff involved a risk of harm that would have been obvious to a reasonable person in his or her position.

199 In Fallas v Mourlas Ipp JA emphasised that s 5F required that regard be had to the circumstances of the individual case when determining whether a risk was obvious, because the section included the words 'in the circumstances' and a reasonable person 'in the position of' the plaintiff [32]. Tobias JA held that all the surrounding circumstances which occurred immediately prior to the plaintiff suffering the harm had to be identified for the purpose of determining whether the risk which materialised was obvious [98].

200 Basten JA came to the conclusion that s 5F (the equivalent section of the CLA being s 5H) directed attention to the risk which had materialised and caused harm to the plaintiff and it was this risk which had to be obvious [152].

201 Basten JA also noted that the application of that section depended upon the level of particularity at which 'the circumstances' were identified and what aspects of 'the position of' the plaintiff were ascribed to the reasonable person. Thus, on the facts of Fallas the risk of harm flowing from the accidental discharge of a gun whilst pointed at the plaintiff was undoubtedly obvious, whereas, if the assurances given by the defendant that the gun was not loaded at the relevant time were taken into account, the risk might not have been obvious [153]. Nevertheless, Basten JA held that the risk of harm was obvious to the plaintiff because there was a risk, even if it was low, that there was a bullet in the gun even though the defendant had assured the plaintiff that there was not. Further, there was a risk that the defendant would point the gun at the plaintiff, even though that would be a careless act [157].

202 Tobias JA agreed that the risk was obvious because a reasonable person in the plaintiff's position would have regarded the defendant's assurances that the pistol was unloaded as unreliable [106].

203 Accordingly, it seems that both Tobias JA and Basten JA took the approach that the prospect of a defendant being negligent had to be taken into account when considering whether a risk was obvious.

204 Ipp JA, on the other hand, came to the conclusion that the risk was not obvious to the plaintiff because the defendant had repeatedly reassured him that the gun was not loaded. Ipp JA held that there had been gross negligence on the part of the defendant [81].

205 In Jaber Tobias JA concluded, with reference to his decision in Wyong Shire Council v Vairy [2004] NSWCA 247, [161], that the words 'obvious risk' meant that both the condition and the risk were apparent and would be recognised by a reasonable man, in the position of the plaintiff, exercising ordinary perception, intelligence and judgement.

206 In Laoulach v Ibrahim Tobias JA held that where the plaintiff had conceded that he was aware of the risk of striking his head on the bottom of the bay, the risk was obvious [119].

207 In Streller v Albury City Council Meagher JA noted that in considering whether the risk was obvious only the risk which materialised, namely the risk of impact with the riverbed after back-flipping from the end of a rope swing was relevant, not other risks such as impacting with another person in the water or some object below the surface of the water [32]. However, the age of the plaintiff and his experience of swimming and diving in pools and rivers from a relatively young age had to be taken into account [33]. The 16-year-old plaintiff was an accomplished diver and it was held that the risk was obvious to him.

208 In Alameddine Macfarlan JA came to the conclusion that the risk that the instructor would ride faster than was safe for inexperienced or young participants was not an obvious risk which was incidental to the activity. Macfarlan JA added that s 5L could only apply where the risk that materialised was an obvious risk [46].

209 In Collins v Clarence Valley Council [2015] NSWCA 263 [141] - 150] McColl JA (Macfarlan & Emmett JJA agreeing) considered s 5F in the context of whether the Council should have given a risk warning, and held that in assessing whether a particular risk was obvious much depended upon the generality or precision with which the risk was identified. In that case the plaintiff was aware that she was about to cycle over a bridge which had longitudinal wooden planks with considerable gaps between them. She realised that her wheel might became caught in a gap between the planks and cycled diagonally across them. However, towards the end of the bridge and while looking ahead, her wheel became stuck in a gap and she fell with her feet still attached to the bicycle over the low guard rails of the bridge into a rocky ravine below suffering serious injury.

210 McColl JA came to the conclusion that it was unnecessary to seek to define the particularity with which the risk had to be identified for the purpose of it being an obvious risk. However, her Honour noted that much was to be said for the view taken by the trial judge that it should be the same risk as that identified for duty of care purposes, because the ultimate outcome if an obvious risk was established was that the defendant would be found not to have owed the plaintiff a duty of care. McColl JA arrived at the conclusion that it would have been obvious to a reasonable person in the position of the plaintiff not only that she might suffer catastrophic injury if she would fall from her bicycle, but also that she might fall over the low railings of the bridge.

211 The case law therefore indicates that the issue to be determined in the present case is whether it would have been apparent to a reasonable person in the position of Ms Dixon, with her level of experience, placed in the circumstances that she was in just prior to her participating in the go-kart activity, that she might lose control of the go-kart, veer off the 'designated track', collide with a stationary object on the perimeter of the car park and suffer serious injury. In my view it would not have been apparent to a reasonable novice driver how readily the racing go-karts could lose traction on a corner, that it might not be so easy to regain control and that one might make a mistake as part of a split second decision, such as overcorrecting the steering or accidentally stepping on the accelerator. Although the bollards and trees on the western side were obviously not protected by barriers, the risk of the go-kart actually hitting these obstacles at speed was not obvious, certainly not to an inexperienced driver.

212 In my view it was also not obvious to a reasonable person in the position of Ms Dixon that the Church or Mr Holman might have been negligent in setting up a go-karting track which was not safe. Although an announcement was made in the course of the morning that participation in the go-karting activity would be at the drivers' own risk, there was no indication that the activity was risky and particularly not that it could cause serious injury. There was also no indication that the Church had not taken reasonable care in planning it and setting up a safe track. On the contrary, the Coates barriers could be seen in position on the southern corner and to someone who had no experience of go-karting that would have indicated that appropriate safety precautions had been taken.

213 Accordingly, the risk of a participant losing control of a kart, veering off the track, hitting a stationary object on the perimeter of the car park and suffering serious injury was not obvious to a reasonable person in the position of Ms Dixon. Section 5H of the CLA therefore does not exempt the defendants from liability.

Whether no duty of care was owed because a risk warning was given

214 The next issue is whether pursuant to s 5I of the CLA the Church and Mr Holman did not owe a duty of care to Ms Dixon in respect of the risk of her losing control, veering off the track, colliding with a stationary object on the perimeter of the car park and suffering serious injury, because the risk was the subject of a risk warning. Section 5I provides relevantly as follows:

5I**. No liability for recreational activity where risk warning**

(1) Subject to this section, a person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

(4) For the purpose of subsections (1), (2) and (3), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity.

(5) The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.

(6) A risk warning can be given orally or in writing (including by means of a sign or otherwise).

(7) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).

(8) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.

(10) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.

(11) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant.

(12) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from an act done or omission made with reckless disregard, with or without consciousness, for the consequences of the act or omission.

(13) A defendant is not entitled to rely on a risk warning to an incompetent person.

(14) The fact that a risk is the subject of a risk warning does not of itself mean -

(a) that the risk is not an obvious risk or inherent risk of an activity; or

(b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from that activity.

(15) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity.

215 There was no dispute between the parties that the go-karting activity was a recreational activity.

216 The Church and Mr Holman asserted that the warning given by Mr Topliss in the course of the morning that participants would use the go-karts at their own risk meant that they did not owe a duty of care to Ms Dixon in respect of the risk which materialised because she had been warned about it.

217 Although s 5I provides that a defendant does not owe a duty of care in respect of 'a' risk of the recreational activity if the risk was the subject of a risk warning, the section must of necessity require a warning in respect of the particular risk which materialised, because it is not relevant whether the defendant owed a duty of care in respect of some other risk.

218 Pursuant to 5I (7) of the CLA the warning does not have to specifically address the particular risk, but can be a general warning of risks that include the particular risk concerned. Counsel for the defendants submitted that the warning 'partake at your own risk' was a general warning which included the particular risk of a participant losing control, veering off the track, colliding with a stationary object and incurring a serious injury.

219 The equivalent section to s 5I in the NSW Act is s 5M which is in very similar terms and particularly contains the same provisions as in subsections 5I(1) and (7).

220 In Belna Pty Limited v Irwin [2009] NSWCA 46 [17] the plaintiff signed a questionnaire when she joined a gym in which she acknowledged that she had not been provided by the owner of the gym with any advice regarding her medical fitness, that the information in the questionnaire was only used as a guideline to the limitations to her inability to exercise and that she would not hold the owner liable for any injuries that she might incur. Ipp JA (McColl JA & Handley AJA agreeing) held that this acknowledgement did not warn the plaintiff about any risk in involved in her doing lunges after having had a previous dislocation of her knee [18].

221 In Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128 the occupier of a facility offered two outdoor games, namely 'action paintball' and 'laser tag' in an area of bushland which had rough tracks scattered with fallen branches and debris. The plaintiff partook in a game of laser gun and while running along a track, fell over a tree root and suffered a significant fracture to her elbow. Prior to the game the referee, an employee of the defendant, had given a warning to the effect 'there's a lot of sticks and obstacles in the way, so do not run full out, because you might fall over and hurt yourself'.

222 The trial judge had come to the conclusion that the warning was not specific enough because it did not warn of tree roots and that there should be no running at all.

223 On appeal Basten JA (Hoeben & Ward JJA agreeing) held that the risk warning was a warning with regard to the general kind of risk that might arise and covered the specific risk of falling over a tree root and hurting oneself. The suggestion that one specific hazard should have been identified was a function of hindsight [26] - [27].

224 In Sharp v Parramatta City Council [2015] NSWCA 260 the plaintiff, aged 24, jumped from a 10 m diving platform into a pool, feet first, but lost her balance and made contact with the water surface with her buttocks. She suffered a compression fracture. At the bottom of the stairs leading to the diving platform was a warning sign which stated that persons using the diving platforms did so at their own risk.

225 Meagher JA (Ward & Gleeson JJA agreeing) held that the general risk involved in using the 10 m platform was of injury from diving or jumping from it. The risk to which the sign was directed was the risk involved in the activity of using the platform to jump or dive into the pool. The sign therefore warned that there was a risk of injury in undertaking the activity of diving or jumping from the platform [31].

226 On the other hand, in Vreman and Morris v Albury City Council [2011] NSWSC 39 the 15-year-old and 17-year-old plaintiffs were injured when they used their BMX bikes in a skate park. The skate park had a sign listing a number of matters under the heading 'Conditions of safe use'. These included that participants should always skate carefully and within their own skill level, had to wear protective clothing at all times and would skate at their own risk.

227 Harrison J held that the particular risk that materialised was suffering injury as a result of falling from the BMX bike while riding at the skate park where a wheel might slip on the painted concrete surface in the course of landing from a jump [95]. Harrison J came to the conclusion that the sign erected at the skate park did not warn users of any risk at all. The warning that users skated at their own risk implied that there existed a risk but was silent upon what it might be. Even if it was accepted that the nature of activities engaged in at a skate park obviously included a risk of falling, the warning did not extend to include the most serious consequences that could be caused by a fall. Particularly it did not include a reference to the risk of serious or catastrophic injury. The sign also said nothing about the risks associated with the slipperiness of the painted surface, the effect of moisture on the surface and the likelihood of slipping or falling when landing on a surface with a steep gradient [110].

228 In State of Queensland v Kelly [2014] QCA 27 [40] the defendant had not pleaded that it had no duty of care in relation to the risk which materialised because there had been a risk warning in respect of that risk, but had relied on s 19 of the Civil Liability Act 2003 (Qld) (the equivalent to s 5H of the CLA) alleging that the risk which materialised was an obvious risk of a dangerous recreational activity. However, the issue of the adequacy of a warning sign was raised because it was held to be one of the circumstances that could be taken into account when the court decided whether the risk which materialised was an obvious risk within the meaning of s 13 of the Qld Act. Section 13 is the equivalent to s 5F of the CLA, apart from an additional sub-section 13(5) which was not relevant to the decision in Kelly.

229 The plaintiff, a 22-year-old Irish tourist, was rendered a partial tetraplegic when he ran down a sand dune and fell headfirst into a lake on Fraser Island. He had seen other tourists run up and down the sand dune and jump into the lake. He had done so on about 10 occasions before being injured.

230 A sign had been erected at the entrance to the lake which contained the following warning:

Lake Wabby is often more shallow than it looks. SERIOUS INJURY OR DEATH is likely to occur from running, jumping or diving into the lake. Because the sand dune is steep, running or rolling down the sand towards the lake is DANGEROUS.

231 The trial judge found that the plaintiff had intended to jump into the lake feet first, but lost his footing when he ran down the dune, probably because the sand gave way or shifted underneath him, which caused him to inadvertently plunge into the water head first [16]. Fraser JA (Philippides & Henry JJ agreeing) held that the sign conveyed that serious injury or death might result from running and diving, but not that it could also result from running down the dune and jumping feet first into the lake [43]. Taking into account all the relevant circumstances the warning sign had been confusing, because there was also a pictogram on the sign which indicated that the real danger was diving into water of uncertain depth. Further, a video which the plaintiff was required to watch upon arriving at the island had warned of different dangers on the island, but had not mentioned the lake. Most importantly, the warning conveyed that running down the dunes and jumping into the lake feet first might cause some injury such as a sprained ankle or bruising, but not that it could cause catastrophic injury such as a broken neck [48].

232 The warning by Mr Topliss that participants would use the go-karts at their own risk did not say anything about the risk of serious injury. It may be accepted that such a warning did convey that there was a risk of some injury, but it said nothing about what the potential risks were or about the seriousness of injury. It did not warn the participants that they were using racing go-karts which were subject to lateral acceleration (or put in layman's terms, difficult to control on the corners), that one could readily lose control, that left foot braking was a risk, that the track had not been set up with perimeter protection and that serious injury could result from collision with a stationary object.

233 The warning given by Mr Topliss on behalf of the Church was not a warning of the risk of the activity which materialised, neither in specific nor in general terms. Accordingly the defendants are not exempt from liability on the basis of s 5I.

Whether the defendants did not owe a duty of care to warn of the obvious risk

234 The defendants also relied on s 5O of the CLA which provides that a defendant does not owe a duty of care to a plaintiff to warn of an obvious risk to the plaintiff. As I have found that the risk of incurring serious injury by reason of losing control, veering off the track and colliding with a stationary object on the perimeter of the car park was not an obvious risk, this section has no application. In any event, this section appears in Division 6 which deals with assumption of risk, and it was not pleaded by the defendants that Ms Dixon had voluntarily assumed the risk.

235 The issue whether Ms Dixon was contributorily negligent is to be determined in terms of the principles set out in s 5K of the CLA. This section provides as follows:

5K**. Standard of contributory negligence**

(1) The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

236 In Town of Port Hedland v Hodder [No 2] [2012] WASCA 212 the majority (McLure P & Murphy JA) held that the standard of care required of the plaintiff was that of a reasonable person and that the issue to be determined was whether the plaintiff knew or ought to have known that what he did was not safe in the circumstances [287], [372] and [380].

237 In Hodder the 23-year-old plaintiff who suffered from an intellectual disability and was profoundly deaf and practically blind dived into the shallow side of the swimming pool owned or operated by the defendants. The trial judge had come to the conclusion that the defendants had breached their duty to the plaintiff by failing to remove the diving blocks from the shallow end of the pool. The plaintiff dived head first with his arms to his side, hit his head on the bottom of the pool and fractured his cervical spine which rendered him quadriplegic.

238 McLure P came to the conclusion that despite the objective test applying to contributory negligence the plaintiff had not been contributorily negligent. McLure P held that the personal characteristics of a plaintiff, including any disabilities or idiosyncrasies which increased his or her vulnerability, could be taken into account when deciding whether a particular act or omission constituted negligent conduct. Whether or not the plaintiff's personal characteristics were taken into account depended on the defendant's state of knowledge, actual or constructive of the vulnerability of the particular plaintiff or the class to which the plaintiff belonged [279] - [282].

239 McLure P pointed out that the defendants had a duty to take into account that people living in the Pilbara would be expected to have little, if any, experience or familiarity with diving into swimming pools. The existence of the diving blocks on the shallow end of the pool were practically an invitation for the plaintiff to dive at that end of the pool and but for the diving blocks the plaintiff would not have dived at all [301] and [302].

240 McLure P held that the burden of establishing contributory negligence was on the defendant and it had not discharged its onus of establishing that a reasonable person in the plaintiff's position would have realised that he had to make an independent safety assessment regarding the depth of the water despite the obvious invitation posed by the diving blocks. The nature of the defendants' breach of their duty to remove the diving blocks exculpated the plaintiff from any contributory negligence [303].

241 Murphy JA, on the other hand, came to the conclusion that the plaintiff was contributorily negligent and that the trial judge's assessment of a 10% contribution was at the lower end of a proper range for contributory negligence [389]. Murphy JA held that, applying the objective test, the plaintiff knew or ought to have known that he could not dive safely from the diving blocks, having regard to their height, the ascertainable depth of the water and his own inexperience and lack of skill [381]. Even though it could be said that the diving blocks presented an invitation to all pool users to dive into the pool, skilled and unskilled divers, a reasonable person in the position of the plaintiff would have realised that he was unskilled, would have checked the depth of the water and would not have dived at all [385]. The plaintiff was therefore also negligent.

242 In assessing the apportionment of negligence between the plaintiff and the defendants, Murphy JA held that the trial judge had not erred in taking into account that the plaintiff was subjectively unaware of the risk he was undertaking, whereas the defendants had knowledge of the risk of unskilled people using the pool. The trial judge had compared the defendants' years of knowledge of the risk with the plaintiff's absence of actual knowledge and had brought those factors into account in the apportionment of 90% - 10% liability [383].

243 The issue therefore is what a reasonable person in the position of Ms Dixon knew or ought to have known at the time and what steps a reasonable person would have taken to guard against the risk of her losing control, veering off the track and hitting a stationary object on the perimeter of the car park. Although the personal characteristics of the plaintiff, such as a physical or intellectual disability are not to be taken into account (except if the plaintiff is a child), s 5K(2)(a) refers to a reasonable person 'in the position of the plaintiff'.

244 Ms Dixon was a novice go-kart driver who suffered the accident on the second round of trying out a go-kart in the Church's car park. I do not accept Mr Holman's evidence that Ms Dixon had three turns on the go-kart, but even if she did, this did not make her an experienced driver. A reasonable person in the position of Ms Dixon would not have known, nor ought such a person to have known, of the problem of left foot braking and the risk that novice drivers might inadvertently step on the accelerator when trying to brake. A reasonable person in the position of Ms Dixon would also not have known or be expected to know about the forces created by lateral acceleration, that one could readily lose control on going around a corner and that it might not be that straightforward to regain control. A reasonable person in the positon of Ms Dixon would also not have realised the significance of the absence of barriers and how readily one could veer totally off the track in trying to deal with an unexpected stressful situation.

245 It is true that Ms Dixon's kart had spun-out shortly before when she took the southern corner in a clockwise direction. However, on that occasion the kart came to a stop after spinning out. Ms Dixon is also likely to have overheard the comment by Mr Holdaway to Ms Harris that if her kart would slide after hitting water, she would not get hurt, 'just spin'.

246 I have already indicated that I do not accept Mr Holman's evidence that he told Ms Dixon to return the go-kart to the pit stop and then call it a day, because he thought she looked tired. He certainly did not say that he told Ms Dixon at any stage that seeing that she was not able to take the corners safely and having spun out once, it was unsafe for her to continue driving. As I said earlier, the whole go-karting experience was presented by Mr Holman to the women participants as a safe and fun event and the presence of some barriers on the southern corner indicated that safety precautions had been taken.

247 Even if Mr Holman told some of the other women participants to 'watch the corners' or to 'be careful on the corners', as Ms Holdaway and Ms Harris testified to (Mr Holman himself did not report this during his evidence), such a statement did not communicate to the women participants and Ms Dixon that it could in fact be quite dangerous if one lost control on a corner to the extent that the kart veered off the 'designated' track. I have some difficulty, in any event, in accepting Ms Holdaway's and Ms Harris' evidence in that regard, because on the various video clips showing the three other women participants being readied for their turn, there is no indication that either Mr Holman or Mr Holdaway told them to be careful on the corners.

248 The defendants pleaded in their defence that Ms Dixon was contributorily negligent because she caused the go-kart to accelerate and drive off the track and into the tree, she failed to apply the brake, she failed to stop, slow down or otherwise adequately control the go-kart, she overestimated her competency in driving the go-kart and disregarded an instruction to cease driving it.

249 These allegations need to be assessed in the context that Ms Dixon was a novice driver and that Mr Holman knew that. Keeping in mind that Ms Dixon only had the past experience of having done a few laps on the go-kart track before her final turn, had been given limited instructions on how to execute a safe turn, had not been specifically warned of the problem of left foot braking and had been encouraged to drive faster, it is difficult to conceive of anything that a reasonable person in her position ought to have known or ought to have done.

250 It is to be expected that even a reasonable person in the position of Ms Dixon might have made an accidental mistake such as stepping on the accelerator instead of on the brake, particularly where it was necessary in order to brake to use the opposite foot to the one normally used for driving a car.

251 In Evans v Lindsay [2006] NSWCA 354 [71] Beazley JA (Ipp & Bryson JJA agreeing) said in the context of the standard of care required of a defendant who was the driver of a vehicle:

1. The possible range of responses has to be assessed, not in the reflective calm of a judge's chambers but in the context of the dynamics that confront the driver that usually calls for quick decision-making in circumstances of quite some stress. It will not always be negligent if a driver, in what is virtually split second decision making makes what, on later reflection, was the wrong decision. However, it may be negligent if a driver was failing to keep a proper lookout so that she/he, in real terms, deprives her/himself of the ability to make decisions, other than the immediate reaction of 'slamming on the brakes'.

252 This raises the question whether Ms Dixon ought to have taken the corners more slowly, but she and the other women participants were encouraged to go faster and at no stage were the difficulties that one could experience on taking a corner, losing control, regaining control and utilising the wrong foot for the brake explained to her. Mr Kahler made the point that it took experience and training for a driver to be able to counter-steer and realign the kart once it had gone into a yaw.

253 Mr Holman, on the other hand, must have been well aware of the risk of the women participants losing control on a corner and the problem of left foot braking. As in the Hodder case the defendants held out the go-karting activity to be safe to Ms Dixon despite the total absence of barriers. In the words used by McLure JA, the nature of the defendants' breach is at such a level that it exculpates Ms Dixon from any contributory negligence.

254 Accordingly, I do not find any contributory negligence on behalf of Ms Dixon.

255 Having established a duty of care on the part of the Church and Mr Holman, a breach of the duty of care and causation, Ms Dixon has proven that the Church is liable to pay her damages in respect of the injury that she has suffered. She has also proven that Mr Holman is liable, but under the provisions of the Volunteers Act he is not personally liable. However his liability is ascribed to the Church.

256 I am not satisfied that the defendants have discharged the burden of proving on a balance of probabilities that they were not liable for Ms Dixon's injury under s 5H of the CLA because the injury occurred by reason of something that was an obvious risk of the go-karting activity. In any event, it was not proven that the activity was a dangerous recreational activity. I am also not satisfied that the defendants have proven on a balance of probabilities that they had no duty of care under s 5I of the CLA in respect of the risk of the activity which materialised because it was the subject of a risk warning.

257 Lastly, I am not satisfied on the balance of probabilities that any contributory negligence on behalf of Ms Dixon was proven.

258 Accordingly, there should be a finding for Ms Dixon in respect of liability.