Whether the plaintiff was engaged in a dangerous recreational activity
45The first defendant alleges that the deceased is not liable in negligence for harm suffered by the plaintiff, since the harm suffered was a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. Accordingly, it is necessary to determine whether the plaintiff was engaged in a dangerous recreational activity.
46Section 5K of the Act defines "dangerous recreational activity" as:
"... a recreational activity that involves a significant risk of physical harm."
"Recreational activity" is defined as including:
"(a) any sport (whether or not the sport is an organised activity), and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."
"Obvious risk" has the same meaning as it has in Division 4.
47By s 5K "obvious risk" in s 5L has the same meaning as it has in s 5F. Section 5F provides:
"(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."
48As Mason P said in Lormine Pty Ltd and Anor v Xuereb [ 2006] NSWCA 200, at [31]:
"The principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]-[50], [92])."
49The recreational activity in question can be viewed at various levels of generality. Travelling on a motor vessel in a protected waterway such as the Georges River may not be dangerous at all if the driver of the vessel is not intoxicated and is taking due care. However where, as here, it was dusk, the boat was not illuminated, it was travelling at such a speed that the sound of its motor could readily be identified at a distance and remarked upon and, I infer, the driver was intoxicated, the recreational activity of boating on a river had become, by those circumstances, dangerous.
50However, it does not follow, merely because the deceased was engaged in a dangerous recreational activity at the time of the collision, that the plaintiff ought also be regarded as so engaged. In the instant case the evidence shows that the deceased engaged in a dangerous recreational activity since he was in charge of a power boat, which did not have its lights on, after dusk while under the influence of alcohol. The plaintiff was a passenger on the vessel. There is, however, no evidence from which I can infer that the plaintiff engaged, in any positive sense, in the dangerous recreational activity in which the deceased was engaged. For the reasons given more fully below, the evidence does not exclude various possibilities which are inconsistent with her having engaged in the dangerous recreational activity. For example, the plaintiff may have pleaded with the deceased to stop drinking, let her off, slow down, put the lights on or sound the horn.
51The first defendant submitted that the dangerousness of the recreational activity ought be judged by reference to the minutes immediately preceding the collision, rather than to the whole of the period from the time the deceased and the plaintiff got on the boat on 16 September 2006. He said that the description given by Maryanne Korbi, whose statement formed part of the brief to the coroner, gave a reliable indication from a person who was in the vicinity of the accident when it occurred. Ms Korbi stated:
"4. Later on, at around dusk, I can't say what time it was exactly as we didn't have a mobile phone or watch, but I remember the lights on the channel were flashing. I think the channel marker just to my left was flashing white. There was another channel marker a long way away, just off Kangaroo Point, it was flashing red.
5. At about this time I heard the sound of an engine that was rather loud. It was coming from my right near Como Bridge. I turned and looked toward the noise and saw a white coloured boat. I was horrified at the speed at which the boat was travelling, I have never seen a boat go that quick. I've never seen any boat travel at that speed on the Georges River. Looking at a street directory I would estimate that the boat was off Green Point, Como when I first saw it. There was a lot of spray coming from the back of the boat and the front or tip of the boat was angled up.
6. I watched the boat go past us. The boat was travelling close to the opposite side of the river to where we were fishing. I said to Thomas, Tony and Chloe, 'This guy has got a death-wish, he's going to end up killing someone if not himself . ' The boat past [sic] our position, I noticed the motor noise didn't change so he was still going fast. This got our attention as we discussed how he was going to negotiate the bend at Kangaroo Point. We all kept looking in that direction. I could see the red light flashing at Kangaroo Point and that's when we lost sight of him.
7. Moments later we all heard an explosion and I also felt something like a vibration. It was very loud it felt very close. Chloe said, 'He's hit the flashing light'. I said, ' The light is still flashing, he's hit something just around the bend not the light' ." [Emphasis in original]
52I accept Mr Newbrun's submission about the time during which the matter must be assessed. There is no evidence that the deceased was engaged in a dangerous recreational activity in any period other than that immediately prior to the collision. Indeed, that the danger associated with the recreational activity was so short-lived has, in my view, a significant bearing on the extent to which the plaintiff can be said to have engaged in it.
53Mr Newbrun submitted that there was a number of matters which, taken together, compelled an inference that the plaintiff did not object to the deceased's risk-taking behaviour in the minutes prior to the collision and therefore could be said to have engaged in the same dangerous recreational activity in which the deceased was engaged.
54He relied on each of the following matters which he contended established that the plaintiff was both a thrill seeker and a risk taker, and that she therefore participated in the same activity as the deceased immediately prior to the collision:
(a) The plaintiff drove a sports car, a Mazda MX6, with a V6 engine which she purchased second-hand about three years prior to the accident, and admitted that she not only enjoyed driving it but also enjoyed being seen in it;
(b) The plaintiff had owned horses and had ridden them in endurance events;
(c) The plaintiff had raced sailing boats regularly, although not in the two years prior to the accident;
(d) The plaintiff had undertaken waterskiing a couple of times a year;
(e) the plaintiff regularly went out on powered boats, including with the deceased; she enjoyed the freedom of being on the water and the wind on her face;
(f) The plaintiff had gone up in a hot air balloon when on a recent holiday in Egypt;
(g) The plaintiff had experimented with heroin when she was nineteen, and it was probably as a result of this that she contracted Hepatitis B;
(h) The plaintiff had snorted cocaine as a teenager three or four times;
(i) The plaintiff, as an adult, had taken cannabis in the form of joints, although not in the months prior to the accident;
(j) The plaintiff was a heavy drinker; and
(k) The plaintiff had been convicted of a mid-range drink driving offence about fourteen years prior to the accident, as a result of which she was not permitted to drive for four months.
55Mr Newbrun said further that the plaintiff was obviously a strong, independent woman who was perfectly capable of objecting to any behaviour of which she did not approve and making her views known. He also submitted that the plaintiff's evidence that the deceased listened to her concerns and tended to do what she asked him to, ought lead me to infer that she did not object to his conduct since, if she had objected, he would have desisted.
56Mr Newbrun also submitted that the plaintiff was a person who was prepared to act in disregard of her own interests, and that this tended to establish that she would not have objected to the deceased's reckless driving of the boat immediately prior to the accident. He relied on the plaintiff's evidence that in the past she had, for about four years, been in a violent relationship, in the course of which she was regularly beaten senseless and also her previous drug use, and in particular her use of heroin.
57I consider this submission to be an extraordinary leap in logic, and I reject it. To suggest that a woman who has successfully extricated herself, ten years previously, from a violent relationship, obtained treatment for psychological problems as a result of it, and obtained regular employment for which she qualified herself by doing a course, would have been prepared by reason of those matters to be an active participant in a highly dangerous manoeuvre while a passenger in a speedboat is fanciful and at odds with experience.
58I find that the plaintiff's use of heroin was as she disclosed in evidence: that she had experimented with it when she was a teenager, more than twenty years prior to the accident, and she had not used it since that time. I do not consider this to be relevant to the issues for determination in this case. Nor do I consider that her prior use of heroin bears on the plaintiff's credibility.
59In addition to the matters referred to above, Mr Newbrun also relied on the circumstance that the plaintiff was prepared to travel overseas on her own. I do not consider that circumstance to be probative of the issues in this case.
60Mr Newbrun spent a deal of time in the hearing cross examining the plaintiff about whether she was a heavy drinker, and the extent to which she had an alcohol problem. He was presumably seeking to establish that her heavy drinking made her a risk-taker, that she drank heavily on the day of the accident, and that the disinhibiting effects of alcohol meant that I should find that she engaged in the activity in which the deceased was engaged prior to the collision.
61Mr Newbrun also relied on the statement of Sergeant Gorick, which was included in the brief to the coroner. Sergeant Gorick stated:
"I observed an esky and a number of beer cans and wine bottles floating in the water. I could not be positive but strongly suspect that this debris was from WHITEOAK's vessel."
62Even were I to assume that Sergeant Gorick's suspicion was correct and the debris came from the deceased's vessel, this does not, without more, establish that the deceased and the plaintiff consumed alcohol from those receptacles on the day of the accident, and if so, in what proportion.
63There is neither evidence of what the plaintiff's blood alcohol concentration was at the time of the accident, nor evidence from which her consumption on that day can be deduced. Although I am prepared to infer that the plaintiff and the deceased drank alcohol together on the day of the accident, since it was the plaintiff's evidence that that is what they intended to do, it was their usual practice, and the defendant's blood alcohol reading establishes that he did so, there is insufficient evidence from which I could infer how much the plaintiff drank, and to what extent she was affected by alcohol in the minutes immediately preceding the collision.
64In any event, I accept, as a matter of common experience that views differ about what constitutes heavy drinking. The plaintiff's daughter Rachel, who does not drink, has described her mother as a heavy drinker, but the plaintiff is resistant to that description and maintains that she is not an alcoholic. Whether the plaintiff is a heavy drinker or not, the fact remains that, as I have said above, the evidence of her drinking habits is not sufficient for me to make a finding about her consumption on the day of the accident, except to the extent referred to above.
65Mr Newbrun also sought to obtain the plaintiff's agreement that she was a heroin user, based on some notes to that effect in the St George Hospital file, the tender of which I rejected and which is the subject of a separate judgment given on 29 November 2011: Nicol v Whiteoak & Anor [2011] NSWSC 1467. He put to her that she had puncture marks on her right anterior elbow area from heroin injections. The plaintiff denied the proposition and observed that this was unlikely in any event since she was right-handed.
66Mr Newbrun also suggested to the plaintiff that she consumed a substantial quantity of alcohol on the day of the accident. I accept the plaintiff's evidence that she does not recall how much she consumed on that day.
67Mr Newbrun submitted, in respect of the deceased, that he was intoxicated but not particularly so, since his blood alcohol level was only in the mid-range and he was, as the statement of Mr McKirdy indicates, a seasoned drinker. Therefore it could not be inferred that he was particularly affected or disinhibited such as would incline him to override the wishes of the plaintiff as to how he should drive the boat. Mr Newbrun accepted that I could not find, on the balance of probabilities that the deceased was affected by cannabis at the time of the accident, because the long half life of such substances in the body means that their presence indicates only that cannabis was taken in the previous week.
68Mr Newbrun submitted that because the plaintiff had been present when he was consuming alcohol on that day she had participated in his loss of inhibitions and had therefore participated in the dangerous activity which may have been a result of his ingestion of alcohol.
69The instant case is quite some distance from that of the passenger who hands the keys to the car to an obviously intoxicated friend, who is an inexperienced learner driver, and asks her to drive her home ( Williams v GIO [1995] NSWCA 516 per Cole JA, with whom Meagher JA agreed). A point of significant distinction is that in the motor vehicle cases, the relevant decision made by the passenger is, generally, whether to get into the motor vehicle when the driver is intoxicated, since drivers do not usually drink while driving. Boats are, however, different in this respect in that the plaintiff and the deceased may have been completely sober when they got onto the boat that morning.
70The first defendant relied on the report of Professor Starmer to support the proposition that the plaintiff must have been aware of the deceased's increasing intoxication. However, Professor Starmer stated that: "The signs and symptoms of alcohol intoxication increase as a function of blood alcohol concentration and vary to some extent among individuals". There is no material before me which would enable me to determine to what extent, if at all, the deceased was exhibiting the so-called 'cues' that, in the first defendant's submission, would have given the plaintiff some forewarning that the deceased would be likely to act as he did and drive in the reckless and dangerous manner which ultimately led to the collision. I shall return to this matter when considering whether the plaintiff was guilty of contributory negligence.
71However, there are matters that go the other way and might tend to suggest that the plaintiff objected to the defendant's handling of the boat in the minutes prior to the collision and the defendant disregarded her objections. First, she was very fond of the deceased and considered that they had a future together and "should have been together". It is unlikely in those circumstances that she would collaborate in any turn of events that expose either the deceased or herself to a considerable risk of physical harm. Secondly, she was a mature woman who had a regular, stable job which she enjoyed. She was also the mother of a daughter, had a good social life and was living with a close friend.
72I consider that the evidence referred to above permits of no more than speculation. The possibility that the plaintiff went along with the deceased's recklessness can no more be excluded by the evidence than the possibility that the plaintiff objected to it and demanded, fruitlessly, to be allowed to get off the boat.
73In the absence of any evidence to implicate the plaintiff in the dangerous aspects of the otherwise relatively safe recreational activity of travelling on a boat in a protected waterway such as the Georges River, I find that the first defendant has not discharged the burden of proof of establishing a defence under s 5L of the Act.