Solicitors:
Commins Hendriks Solicitors (Plaintiff)
Sparke Helmore Lawyers (First, Second and Third Defendants / Cross-Defendants)
McCabe Curwood (Fourth Defendant / Cross-Claimant)
File Number(s): 2016/97682
[2]
Introduction
The plaintiff sustained serious injuries whilst participating in a motocross event on 22 August 2004.
The State of NSW is the sole remaining defendant. It administers the compulsory licensing scheme for motor racing venues in New South Wales. The plaintiff sues the State in negligence, alleging that the racing track where the accident occurred was unsafe and non-compliant with the by-laws of the governing body and that the State should not have issued a licence in respect of the venue in July 2004.
At the time of his accident, the plaintiff was 19 years of age. As a result of his accident, he sustained a severe head injury which has left him with a significant permanent brain injury and very severe disability.
The plaintiff does not remember the circumstances of his accident. The evidence as to the circumstances of the accident came from his father, Stephen Shaw, as set out in an evidentiary statement dated 7 April 2017. Stephen Shaw was not required for cross-examination and did not give any oral evidence.
The oral evidence given by the plaintiff (given in Wagga Wagga on the first day of the hearing) was limited to damages issues and his general understanding of the documentation he was required to sign. Shortly after the commencement of the hearing, the parties agreed on damages. Although the plaintiff does not sue by a tutor, the plaintiff sought the approval of the Court in respect of the agreement as to damages. The agreement was approved by Johnson J on 23 October 2019 in the sum of $5 million.
The plaintiff originally commenced proceedings against four defendants being:
1. Oakdale Junior Motorcycle Club Inc. ("the Club") as first defendant;
2. Motorcycling Australia Limited ("Motorcycling Australia") as second defendant;
3. Motorcycling NSW Limited as third defendant ("Motorcycling NSW"), and
4. State of New South Wales as fourth defendant ("the State").
Each of the Club, Motorcycling Australia and Motorcycling NSW were jointly represented. They were sued on the basis that they were all responsible for the management of the track, the oversight of the event and the conduct of the competition on the day.
Shortly after the commencement of the hearing, the plaintiff resolved his case as against the Club, Motorcycling Australia and Motorcycling NSW. I was not informed of the terms of the resolution. The settlement was approved by Johnson J on 23 October 2019. I was not asked to make any orders in respect of the settlement during the course of the hearing.
Subsequent to the resolution of the issues between the plaintiff and the Club, Motorcycling Australia and Motorcycling NSW, the case proceeded on the basis that the State was the sole defendant and the Club, Motorcycling Australia and Motorcycling NSW remained involved in the proceedings only at the suit of the State by way of cross-claim.
Despite the Club, Motorcycling Australia and Motorcycling NSW remaining parties as cross-defendants, they played little part in the proceedings.
The Club, Motorcycling Australia and Motorcycling NSW adopted the position that the plaintiff should not succeed against the State and that, even if the plaintiff succeeds against the State, the plaintiff could not have succeeded against them for a number of reasons including reliance on a contractual waiver in an entry form signed by the plaintiff prior to his accident.
The State does not accept the essential factual assertions made by the plaintiff being that the configuration of the track was contrary to the Motorcycling NSW by-laws and unsafe.
Subject to a submission made on behalf of the plaintiff that the Civil Liability Act 2002 (NSW) ("the CLA") does not apply, [1] the matter involves a consideration of various provisions of the CLA purporting to afford statutory defences to the State, such as ss 5F, 5G, 5H, 5K, 5L, 5M and 5N, as well as ss 42, 43A and 44.
[3]
The plaintiff's case against the State
The State's only role in the context of this case was to administer the licensing scheme in respect of motor racing facilities in NSW.
The plaintiff's case against the State is set out in the statement of claim. It is also summarised in his outline of submissions. The State says that the case, as set out in the submissions, is not properly pleaded. There is some merit in that suggestion. It is difficult to match the particulars of negligence in the statement of claim with the case outlined on the hearing. In particular, the State says that there is no allegation in the statement of claim that it is vicariously liable for the conduct of the persons who recommended the issue of the licence in 2004.
I will summarise the plaintiff's case as set out in its outline of submissions:
1. The State administers the licensing system under Motor Vehicle Sports (Public Safety) Act 1985 (NSW) ("the MVSPSA").
2. The MVSPSA requires that anyone conducting a sport involving motor vehicles must obtain a licence.
3. The Minister is delegated as responsible pursuant to ss 5 and 6 of the MVSPSA for that licence.
4. The purposes of the MVSPSA included providing for public safety including the safety of competitors.
5. Applications for licences were made to the Director-General in a prescribed form which included three copies of plans and specifications to scale for the track.
6. The delegation available to the Minister is set out in s 13(1) of the MVSPSA. Section 13(1) allows for a person in the Department to be the delegate and the Commissioner of Police or a person holding a specific office in the Police Force to be a delegate.
7. The Minister delegated to a Mr Graham Coulton of the Department of Tourism, Sport and Recreation ("the Department") and Senior Constable Kane ("Officer Kane").
8. The administration of the Act required each organising authority to provide a set of rules for the event which would satisfy the aims of the legislation, including the safety of the public, including competitors.
9. The MVSPSA does not permit further delegation of responsibility.
10. At the time of the plaintiff's accident, the by-laws of the State body of Motorcycling Australia, being Motorcycling NSW, required a 30-metre minimum distance between jumps.
11. The distance between jump one and jump two was not 30 metres.
12. This fact was referred to on at least two occasions by the police officer who was delegated to inspect the track.
13. An interim licence was issued in 2001 pending the completion of certain matters, including the number of jumps inside the 30-metre limit being attended to.
14. The experts agree that the track was non-compliant at the time of the event and there were three jumps in the 50 metres between Turns 1 and 2.
15. On 24 June 2004, Officer Kane inspected the track with a representative of Motorcycling Australia, Anne Lindsay.
16. He reported that the track was not suitable for relicensing.
17. Without further inspection of the track but having apparently spoken to Rob Madden of Motorcycling Australia he reversed his recommendation.
18. The track inspection report completed by Mr Madden of Motorcycling Australia made no mention of the non-compliance of the 30-metre rule.
19. Both Mr Coulton, who was employed by the State and recommended that the licence be issued, and Officer Kane were in breach of their duties and used impermissible delegations.
20. Had they properly performed their duties, the track would not have been licensed and the event could not have been conducted.
21. In those circumstances the competition would not have taken place and the plaintiff would not have been injured.
22. Alternatively, Mr Coulton and Officer Kane were vicariously liable for the negligent recommendations by Mr Madden in breach of the New South Wales by-laws.
The plaintiff pleads 29 particulars of negligence as against the State but many are broad and general and others could not possibly apply to the State. No submissions were directed to most of the particulars of negligence. Further, the plaintiff made a general submission that the CLA did not apply to his claim against the State, apparently on the basis that the claim was akin to a breach of statutory duty against a statutory authority. The foundation for that submission is unclear.
[4]
The State's position
The State admits that it was responsible for the issuing of licences in respect of the venue. However, it denies that it was negligent and denies that any injury, loss or damage suffered by the plaintiff was caused by any alleged negligence on its part. It disputes the essential factual propositions on which the plaintiff relies.
More specifically, it pleads a number of defences including that:
1. it relies on ss 5F, 5G and 5H of the CLA in the sense that it says that the track posed an obvious risk for which it had no duty to warn the plaintiff;
2. it says that the risk of a collision and falling from the motorbike was an inherent risk within the meaning of s 5I of the CLA;
3. it says that the plaintiff was participating in a dangerous recreational activity and that the risk of a collision and falling from the motorbike was obvious within the meaning of that term for the purpose of s 5K of the CLA;
4. it relies on s 5M of the CLA on the basis that the plaintiff was provided with a risk warning;
5. it further relies on s 5N of the CLA on the basis that the plaintiff had waived any liability that might arise from a failure to take care on its part;
6. it further relies on ss 42, 43, 43A and 44 of the CLA on the basis that it was a public authority and that, having regard to those sections, the claim against the plaintiff cannot succeed; and
7. it pleads contributory negligence on the part of the plaintiff but made no submission that the plaintiff was guilty of contributory negligence and there is no evidence which would support such a finding.
In my view, there are a number of fundamental difficulties with the plaintiff's claim. Irrespective of what the exercise of reasonable care required, there are three primary reasons why the plaintiff is not entitled to succeed against the State, being:
1. the plaintiff has not established the facts essential to his cause of action;
2. the plaintiff has not established that any breach of duty, no matter how described, caused his injuries; and
3. the State has a defence under s 5L of the CLA (dangerous recreational activity).
[5]
Circumstances of the accident
The plaintiff commenced riding motorbikes when he was approximately 10 years old. He was a competent and experienced rider. Indeed, between 1999 and 2003 he was the Riverina Motocross Champion. In 2003, he was placed third in the New South Wales Championship.
Motocross is a competitive sport in which competitors race motorcycles on an enclosed track made from natural terrain. It is a feature of the sport that the competitors race at speed over dirt in close proximity to each other, proceeding through sharp turns and over jumps.
The plaintiff's father, Stephen Shaw, was also an experienced and competent motocross rider. He commenced riding in motocross events at the age of 14. He ceased motocross racing at the age of 21 or 22. He took up the sport again when his son, the plaintiff, became interested and involved in motocross. He did not consider himself as competent or expert as his son.
On 22 August 2004, the plaintiff and his father went to Oakdale Camperdown to race in round three of the Senior NSW State Championship for motocross. The Oakdale track was a well-established track as is evident from earlier licences it has received in respect of the holding of competitive events. It had held the King of the Valley motocross event on 24 and 25 July 2004. There were approximately 30 to 40 events held at the track each year.
The plaintiff does not have any recollection of being at the track or competing in the race that day. There is no evidence that the plaintiff was otherwise familiar with the track. Nor is there evidence as to how many times he might have ridden on the track prior to 2004. It may be that the plaintiff had some practice laps before the race on the day of the accident. In any event, there is no evidence that his accident was caused by his own unfamiliarity with the track.
Other than a brief summary contained in the Steward's report from the day, the details of the accident are limited to that contained in the evidentiary statement of the plaintiff's father, Stephen Shaw.
It is appropriate to include all of Stephen Shaw's evidence on the circumstances of the accident as follows: [2]
"21. Russell was required to assist with the event and do some 'flagging'.
22. Russell also completed a practice run during the morning.
23. The junior events were conducted first and Russell's racing did not commence until the early afternoon.
24. I had never been to the Oakdale track prior to this event however Russell may have been there with friends earlier in that same year being 2004.
25. I recall that officials were watering the track at and around corner one prior to the start of Russell's race. This is unusual as it makes the track slippery unless it is done some time prior to a race commencing.
26. Russell and I went to the starting point. Russell was riding his only bike for 2004. That bike was a Yamaha YZ250 and was a 2004 model. I stood behind Russell until just prior to the start of the race at which time I moved back to watch the start.
27. I believe that there were between fifteen and twenty competitors in this event.
28. At the start of the race Russell got away to a very good start. He 'hotshot the race' and went straight to the lead of the field although only by a small margin.
29. When Russell reached the first corner, he went to an inside line and did not go wide. There was another rider, Paul Grant, inside of Russell and that rider forced Russell a little wider on the track towards those riders who were taking an outside line.
30. I saw another bike clip Russell's back wheel which pushed Russell's bike sideways. This meant that Russell's bike was in a sideways trajectory as he negotiated a ski jump positioned immediately after corner one. Russell's bike landed three to four meters past the ski jump.
31. There was another rider who I now know to be Terry Hopmans travelling behind Russell. That riders bike was up in the air at the time that Russell fell and Terry Hopmans bike landed on Russell's head. At that time Russell was still in the riding position with one leg either side of the bike, however the bike was on its side.
32. At first I did not regard the fall as being serious.
33. In my experience as a rider I have not seen a skip jump positioned as this one was. It did not allow for any correction by Russell.
34. Immediately after the impact of Terry Hopman's bike with Russell's head Terry Hopman jumped off his bike and immediately put his hands up in the air in a crossed position indicating assistance was required.
35. I immediately ran towards Russell's position on the track which was approximately 100 metres away."
It might be thought that, as he was not cross-examined, the evidence of Mr Shaw as to the circumstances of the accident speaks for itself. However, there is a dispute between the parties as to precisely what happened or what inference I might draw from his evidence as to what caused the accident and where the accident actually happened on the track.
The precise circumstances of the accident are important because the plaintiff's case against the State depends very much, at the factual level, on what is asserted to be the incorrect positioning of jumps between the first and second turn on the course. The plaintiff maintains that the track was unsafe in the sense that the first jump was too close to the first turn and the second jump was too close to the first jump.
The evidence of the design and configuration of the track is limited and, as I have said, the evidence as to precisely what happened is limited. Persons who would have been able to shed light on precisely what happened both in terms of the plaintiff's accident and the events surrounding the issue of the 2004 licence were not called. It may be that, with the passage of time, they were unavailable or could not assist.
There is reference to a police officer inspecting the track for the purposes of the 2000, 2001 and 2002 licence applications and a different police officer inspecting the track for the purposes of the 2003 and 2004 licence applications. No evidence was adduced from either police officer.
There is reference to two representatives of Motorcycling NSW inspecting the track for the purposes of the 2004 licence application. Both would have been able to shed some light on the configuration of the track. Neither person was called to give evidence. No representative of the operator of the track was called. Again it may be that they were unavailable or could not remember. I am merely highlighting the difficulties which can arise when the Court is asked to make findings of fact based on limited evidence.
A steward's summary of the events of the day was admitted into evidence. [3] There is a report of the accident. It is said to have occurred on "lap 1 corner 1". The author of the report did not actually see the accident and has merely provided a summary based on her enquiries, noting that none of the people she spoke to actually saw the whole accident. She summarised the result of her enquiries as follows:
"[F]rom the information gathered it appeared that the bikes were bunched up together & Russell had started to pull out of the first corner when he came off his bike, he was then run over […] by the bike that was behind him." [4]
The report does not refer to the first jump or the plaintiff having travelled over the first jump prior to falling off his bike. Later in the report, the author confirms that the plaintiff's father was with him whilst the paramedics were treating him. She says that she did not question Mr Shaw as she felt he had enough to deal with.
The steward's summary could only be viewed as a general summary based on information from unknown persons, who may not have actually seen the accident. I would give it little weight compared to the unchallenged eyewitness account of Stephen Shaw.
Other than the expert evidence, the only other oral and affidavit evidence came from Mr Coulton, adduced by the State.
The plaintiff submits that I would be able to make findings as to the precise circumstances of the accident based on Stephen Shaw's statement and then make findings as to the configuration of the track and the position of the jumps having regard to the map of the course which was contained in the race day booklet. The State disputes that the evidence is sufficient to make the findings on which the plaintiff relies and disputes that the evidence supports those findings.
Having regard to Mr Shaw's evidence and the absence of any contrary evidence, I find that:
1. As the plaintiff was proceeding around the first corner, he was on an inside line rather than outside line;
2. There was a rider even further inside or on the left of the plaintiff and that rider forced the plaintiff to move towards the outside of the track (although it is not clear to what extent);
3. At some point adjacent to or just before the first jump another bike clipped the plaintiff's back wheel which caused the plaintiff to move sideways across the track, that is, with the front wheel facing at an angle towards the jump, rather than proceeding over the jump in a direct line;
4. The plaintiff proceeded over the jump. The plaintiff's bike landed three or four metres after the jump and, because he was unbalanced before taking the jump, the plaintiff fell off his bike onto the ground;
5. As the plaintiff fell, there were other riders travelling behind him and one of the bikes landed on his head;
6. At the time that the bike collided with the plaintiff's head, the bike was on its side, although the plaintiff was still attached to the bike in some way or might have been prevented from moving because of the positioning of the bike on its side; and
7. The point of contact between the plaintiff's bike and the other bike travelling inside him around the corner was thus before the first jump but the point of contact between the bike that was following the plaintiff and the plaintiff's head was three to four metres after the first jump.
[6]
Does the CLA apply?
I will deal firstly with a preliminary point raised by the plaintiff. In his submissions, Mr Cranitch SC, who appeared on behalf of the plaintiff with Mr Inglis, asserted that the plaintiff did not have to deal with the CLA because the case against the State is in respect of a failure to license the event in an appropriate manner. [5] Mr Cranitch briefly raised Wednesbury unreasonableness [6] but withdrew the submission. Mr Cranitch went on to deal with the defences pleaded by the State should it be that his primary submission regarding the CLA is not accepted.
The basis on which the plaintiff asserts that the CLA does not apply to the cause of action which he pursues is unclear. None of the exceptions set out in s 3B of the CLA apply. It could not be said that the liability is a liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death within the meaning of s 3B(1)(a). Nor was the accident a "motor accident" within the meaning of the Motor Accidents Compensation Act 1999 (NSW) and s 3B(2) of the CLA. Further, as set out in s 5A of the CLA, Part 1A of the CLA applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.
As identified by Leeming JA in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [41]:
"[T]he effect of s 5A is that Pt 1A of [the CLA] applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill."
The plaintiff asserts that the State is liable in negligence. This cause of action arises out of an alleged failure to take care on the part of the State. The CLA applies to the plaintiff's claim.
[7]
The legislative framework
The State is responsible for issuing licences in respect of facilities used for motor racing in NSW.
The Minister may issue a licence for the holding of a motor vehicle racing event on application by a person having an appropriate interest in the land on which the event is to be held: MVSPSA s 4. The licence is for no more than one year (MVSPSA s 5) and may contain conditions (MVSPSA s 6).
Under MVSPSA s 7(1), the Minister may for good cause suspend or cancel a licence or vary its conditions, including if the Minister is satisfied of any of the matters listed in MVSPSA s 7(2), being that:
"(a) proper and adequate precautions have not been taken or have ceased to be taken at the motor vehicle racing ground for the safety of the public or competitors or persons in proximity to the ground,
(b) the length, width, curvature, grade or surface of the track used for motor vehicle racing at the ground is such as to constitute a danger to the public or competitors or persons in proximity to the ground,
(c) the lands and buildings of which the motor vehicle racing ground consists are generally unsuitable for the holding of meetings for motor vehicle racing,
(d) the power, type, construction or number of motor vehicles competing or to compete at any meeting for motor vehicle racing held at the ground is such as would constitute a danger to the public or competitors or persons in proximity to the ground, or
(e) the accommodation for the public is situated too close to the track used for motor vehicle racing at the ground."
It is an offence to hold a motor vehicle race meeting without a licence (MVSPSA s 8).
I accept, as submitted by the plaintiff, that the purposes of the MVSPSA and the licensing system include preserving the safety of participants and spectators. The licensing system is intended to ensure that motor racing is conducted safely and in accordance with any guidelines or standards. It must follow that the inspection system which forms part of the process of obtaining a licence must be intended to identify issues with facilities, particularly issues which would impact upon the safety of the competitors.
It seems trite to state that the Minister should not issue a licence in respect of a track which is unsafe for the intended racing. There is no evidence that the Minister or his delegate knew that the track was unsafe for racing at the time of the issue of the licence. There are questions as to what the Minister or the delegate should have known and whether the track was unsafe or non-compliant with any guidelines, standards or by-laws.
As set out in s 13 of the MVSPSA, the Minister may, by instrument in writing, delegate such of the functions as specified in the Act or the regulations to the persons set out in s 13(1) as follows:
"(a) a person for the time being holding any specified office or position in the Department of Sport and Recreation,
(b) the Commissioner of Police for the time being, or
(c) a person for the time being holding any specified office or position in the police force and stationed at a place described in the instrument".
Section 13(5) of the MVSPSA states:
"Any act or thing done or suffered by a delegate acting in the exercise of a delegation under this section has the same force and effect as if done or suffered by the Minister and shall be deemed to have been done or suffered by the Minister."
There is an issue in these proceedings as to whom the Minister delegated responsibility and for whom the State might be vicariously liable. It is important to emphasise that the Minister may only delegate by instrument in writing and that the delegation is only in respect of the exercise of such of the functions of the Minister under the MVSPSA or the regulations as may be specified in the instrument. The functions of the Minister under the MVSPSA are only to issue, suspend and cancel licences and impose or vary conditions on licences.
[8]
The by-laws
During the proceedings, the parties referred to the Motorcycling NSW by-laws, which were in place as of 1 July 2004, and the Motorcycling Australia venue standards, which came into existence in 2006. I understand that the Motorcycling Australia standards superseded the Motorcycling NSW by-laws.
The Motorcycling Australia standards do not contain any reference to a minimum 30-metre limit between jumps. There is an obstacle and jumps section, but there is no reference to any limit on the distance between jumps.
This was emphasised by the State as tending to support the proposition that the mere fact that the distance between the jumps may have been less than 30 metres does not mean that the track was unsafe. I agree with that submission, in the sense that it does not necessarily follow that, if the distance was less than 30 metres, the track must have been unsafe. There may be other factors about the track which would also influence such a finding.
However, the Motorcycling Australia standards were not in existence either at the time of the issue of the licence or the time of the accident.
Further, the 2004 licence was issued on the express basis that every event must be held in accordance with the rules and regulations of Motorcycling NSW. At least some of those rules and regulations are set out in the Motorcycling NSW by-laws.
The February 2004 version of the by-laws contains a section in respect of obstacles which includes the following:
"[T]he distance between jumps must be 30 m minimum (from the top of one jump to the top of the next one)".
In my view, it was a condition of the 2004 licence that the Club comply with this by-law when holding an event.
Having said that, the issue in these proceedings is not whether the Club complied with the by-law when holding the race meeting on 22 August 2004. The issue is whether the State was negligent in issuing a licence in July 2004 in respect of the track, in circumstances in which (it is said) the track, at that time, did not comply with the by-law and was unsafe.
[9]
The Oakdale facility and the licensing processes
A licence was issued by the State in July 2004 which permitted the operators of the facility to conduct race meetings during the year. In accordance with the requirements of the licence, the track was inspected by the appropriate representative of the sport prior to the particular race meeting taking place on the day of the plaintiff's accident and certified as being fit for motocross racing.
Indeed, the track was used 30 to 40 times a year and an inspection by a representative of Motorcycling NSW was supposed to take place before each race day. A permit would then be issued. There is no evidence that the operators did not comply with this requirement and no evidence that race meetings were conducted without a race permit.
In support of the proposition that the configuration of the track was not as it should have been, the plaintiff relies on documentary evidence arising from the licensing process during 2000 to 2004 and expert opinion.
The State also adduced evidence from the relevant officer within the Department, Mr Coulton, who considered and made a recommendation in respect of the 2004 licence. I will consider the licence documentation firstly.
[10]
The 2004 licence
On 14 July 2004, Gregory Dresser, an employee of the Department, acting as Delegate for the Minister for Tourism, Sport and Recreation, granted a licence under the MVSPSA to the Club for the Oakdale Junior Motocross motor vehicle racing ground at Oakdale for the period 14 July 2004 to 30 June 2005. It is this licence which the plaintiff says should not have been issued.
The 2004 licence included conditions, many of which would be relevant to the holding of the event.
Condition 21(h) is in the following terms:
"[E]very event must be held in accordance with the rules and regulations of Motorcycling New South Wales Ltd under the control and supervision."
The background to the issue of the 2004 licence is as follows.
On 23 March 2004, Mr Coulton, said to be an Industry Consultant - Motorsport employed by the Department, wrote to the Club notifying it that its licence would expire on 30 June 2004 and inviting it to renew the licence in accordance with the attached application form.
At the same time, Mr Coulton wrote to the Camden LAC seeking advice as to whether the Oakdale Junior racing facility would be suitable for relicensing. In accordance with its established process, the Department was seeking advice from the Police having regard to the Police's inspection of the facility/track.
On 31 May 2004, the Club submitted an application for renewal of the licence (this application is found in the licensing documents tendered by the State). [7] There is another handwritten application annexed to an expert report relied on by the plaintiff. I do not know why this document did not form part of the bundle of documents tendered by the State evidencing the 2004 licence process.
By letter dated 24 June 2004, Officer Kane reported that he had inspected the track as well as three other tracks and that they were all not up to a standard of safety, such that any recommendation for relicensing could not be made. Having regard to the inconsistency between this letter and Officer Kane's letter of 1 July 2004, it is appropriate to cite the letter in full as follows:
"Mr Graham Coulton
NSW Department of Sport & Recreation
6 Figtree Drive
HOMEBUSH BAY, NSW, 2127
REF: Macarthur Park Motocross Motor Vehicle Racing Ground - Brian Road, Appin
Maldon Motocross Racing Ground - Picton Road, Maldon
Oran Park Motocross Racing Ground - Oran Park Facility, Cobbity Road, Oran Park
Oakdale Junior Motor Vehicle Racing Ground - Steveys Forest Road, Oakdale
Dear Graham,
On Saturday the 19th June 2004 in company with Anne Lindsay of Motorcycling New South Wales, I inspected the above-mentioned motor racing grounds.
We found none of the tracks up to a minimum standard of safety where any recommendation for re-licensing could be made.
I therefore recommend that in their current state, the above-mentioned motor vehicle racing grounds are not suitable for re-licensing.
John Kane
Senior Constable No 28624
Traffic Services
Camden LAC
24 June 2004"
On 1 July 2004, Officer Kane again wrote to Mr Coulton but on this occasion, he recommended that the licence be renewed. It is again appropriate to cite the letter in full as follows:
"Mr Graham Coulton
NSW Department of Sport & Recreation
6 Figtree Drive
HOMEBUSH BAY, NSW, 2127
REF: Oakdale Junior Motor Vehicle Racing Ground
Dear Graham,
On Saturday 19th June 2003 I attempted to inspect the Oakdale Junior Motorcycle Club racing ground, Steveys Forest Rd, Oakdale. I was unable to and to date have not inspected the facility.
I am aware that Mr Rob Madden of Motorcycling NSW has completed an inspection and has found that the facility is suitable for re-licensing.
I am aware of the stringent inspection criteria of Motorcycling NSW and although I have not inspected the facility I recommend that the licence pertaining to the Oakdale Junior Motorcycle Club be renewed.
John Kane
Senior Constable No 28624
Traffic Services
Camden LAC
1 July 2004"
Officer Kane's choice of words is puzzling, as he specifically stated in his letter of 24 June 2004 that he had inspected the Club's racing ground on Saturday 19 June 2004 in company with Anne Lindsay of Motorcycling NSW. Yet, in his letter of 1 July 2004, he says that he attempted to inspect the Club racing ground on Saturday 19 June 2003 but was unable to do so and that he had not inspected the facility.
The reference to 2003 must be a typographical error. Absent evidence from Officer Kane, I am unable to reconcile the correspondence. It makes no sense for Officer Kane to state in one letter that he inspected the grounds with a representative of Motorcycling NSW on 19 June 2004 and then in the subsequent letter suggest that he was unable to inspect the facility on that day and had not inspected the facility but he was aware that another representative of Motorcycling NSW had inspected the facility and found it suitable for relicensing.
One possibility may be that the reference in the first letter to the Oakdale Junior Motor Vehicle racing ground was inadvertent or in error, in the sense that it is one letter for four different tracks. Another is that there is an error in the second letter.
On 7 July 2004, that is, prior to the issue of the licence, Motorcycling NSW wrote to Mr Coulton approving the track for motocross competition for the period from 1 July 2004 to 30 June 2005, subject to satisfactory inspection and approval by a Motorcycling NSW-appointed track licence inspector prior to any motorcycling activities (that is the issue of the permit for each event).
On 7 July 2004, Motorcycling NSW issued a track licence granted under the general competition rules of Motorcycling NSW. [8] The licence included conditions that:
the licence was subject to the Department MVRG licence and its conditions;
the licence was subject to a satisfactory MNSW-appointed stewards inspection and approval prior to any racing activities; and
the licence was only valid when motorcycling activities were conducted under a Motorcycling Australia permit and compliant with the rules contained in the Manual of Motorcycle Sport.
[11]
The 2000 licence
On 27 June 2000, Senior Constable Roberts of the Camden LAC conducted an inspection of the track. He raised concerns but noted that work was still being completed. [9] He stated:
"1. 30 metre distance between jumps is right on the limit for 2 jumps."
He did not identify where these jumps were positioned on the track
[12]
The 2001 licence
The next year, on 29 June 2001, Senior Constable Roberts again inspected the track. He recommended that the licence be issued for a period of three months pending completion of a number of matters of concern which included that:
"5. A number of jumps inside the legal 30 metre limit." [10]
The evidence does not disclose what happened after Senior Constable Roberts' inspection in terms of dealing with the concerns but a licence was issued by the Department for the period of 1 July 2001 to 30 June 2002.
[13]
The 2002 licence
Senior Constable Roberts again inspected the track the next year, being on 21 June 2002, for the purposes of the licence. In his report he said:
"Generally the track was in a good state with only a few minor issues being raised:
● Single tyres not secured or filled
● Spectator fencing and proximity to track is legal but some maintenance required to tidy up
● General track maintenance". [11]
He recommended that the licence be renewed and it was.
[14]
The 2003 licence
The next year, being on 8 May 2003, Officer Kane inspected the track for the purposes of the annual licence. He reported that he had inspected all aspects of safety to competitors and spectators. He raised a concern at the close proximity of the fencing between the spectators and the finishing straight but was satisfied about this, having spoken to Mr Packer of Motorcycling NSW. He recommended that the licence be renewed and it was.
There is no statement in any Police inspection report for the period 2000 to 2004 that the distance between jumps one and two in the straight where the accident happened was less than 30 metres. In 2000, Senior Constable Roberts raised a concern that the distance between jumps was right on the limit for two jumps. He did not identify which jumps. There were many in the track. In 2001, the same police officer stated that there were a number of jumps inside the 30 metre limit. He did not identify which jumps. It is significant that there is reference to works being completed and that, when the same police officer inspected the track the next year, that is in 2002, he made no reference to any jumps being inside the 30-metre limit.
Bearing in mind his earlier statements about the 30-metre limit, I would infer that Senior Constable Roberts had some knowledge or belief about the Motorcycling NSW by-laws or at least had a belief that the distance between jumps should not be less than 30 metres.
In circumstances in which the same police officer inspected the same track in 2003 and made no reference to any concern about the distance between jumps, the obvious inference is that he no longer had any concern about the distance between the jumps. I would not infer that there were still jumps positioned within the 30-metre limit and Senior Constable Roberts decided not to mention it.
[15]
Conclusion on the licence documents
There is nothing in the 2004 licensing documentation which would allow any finding that the reason that Officer Kane originally recommended against relicensing was that the distance between the jumps in the second straight was less than 30 metres. There may have been a number of reasons why he did not recommend relicensing. I am not able to speculate.
Further, there is nothing in the documents which would allow me to infer that the representative of Motorcycling NSW, Anne Lindsay, who Officer Kane said inspected the track with him on Saturday 19 June 2004, considered that the distance between the jumps in the second straight was less than 30 metres. Similarly, there is no evidence that Rob Madden of Motorcycling NSW, who Officer Kane said had carried out an inspection of the facility, identified that the distance between the jumps was deficient.
There is no reference to the jumps or any problem with the jumps in Mr Madden's inspection report. [12]
It must follow that if the distance between the jumps between Turn 1 and Turn 2 was less than required by the Motorcycling NSW by-laws, then Mr Madden failed to detect and report on this. Bearing in mind his role within Motorcycling NSW and his apparent expertise as an inspector (according to Mr Coulton) it might be surprising if Mr Madden was unaware of the particular by-law and that he should be checking the track for compliance with the by-laws. However, it is possible that he still missed it.
The documentary evidence does not assist the plaintiff in establishing two of his assertions, being that the distance between the jumps in the second straight on the day of the plaintiff's accident was less than 30 metres and that the alleged deficiency in the second straight had been the subject of two earlier reports to the Department.
There are expert opinions on these matters on which I will comment later in this judgment.
[16]
Mr Coulton's evidence
Oral and written evidence (an affidavit dated 19 March 2018) [13] was admitted from Mr Coulton who, as of 2004, was employed by the Department.
His role included coordination of the application process and administration of licences based on recommendations of qualified inspectors. In order to apply for a licence, a motorsport club or promoter would make an application to the Department by providing the licence application form with relevant supporting documentation. Mr Coulton said that this documentation would include evidence of ownership or lease of the land, Council development approval, proof of public liability insurance and an un-detailed "mud" map of the track that was not to scale. [14]
I am uncertain whether a mud map was submitted as part of the 2004 application. No map is contained in the documents tendered by the State evidencing the 2004 licensing process but there is a map annexed to the report of the expert relied on by the plaintiff and the expert was asked to assume that it was submitted as part of the 2004 application.
Once received, Mr Coulton would send the documentation to both Motorcycling NSW and NSW Police. He believed that each would conduct separate inspections of the prospective venue. NSW Police would generally inspect the venue to determine whether it was satisfactory, which included an inspection of areas such as parking, toilets, canteens, grandstands and generally focus on public safety issues of the venue such as fencing around the track. Thereafter, NSW Police would provide the Department with a one-page document recommending that the licence application either be granted or rejected.
Motorcycling NSW would send a qualified track inspector to the venue to assess compliance and safety issues of the track itself. It would then provide the Department with an abbreviated report outlining any issues and making recommendations as to whether the licence should be granted.
Mr Coulton's explanation and understanding of the process is not entirely consistent with the documents evidencing the licensing process during 2000 to 2004. For example, in 2000 and 2001, contrary to Mr Coulton's general understanding, the inspecting police officer commented on features of the track and not just the overall facility. Further, none of the exhibits, being the licensing documentation for 2000 to 2004, include a mud map, whether or not to scale. Bearing in mind that the proceedings are taking place 15 years after the relevant events, perhaps some of the documents are missing.
As Mr Coulton says in para 15 of his affidavit, the Department's role was limited to administering the annual licensing for motorsport. It did not inspect the tracks during the licence period. It was not itself responsible for conducting any expert assessment as to the safety of the track. He considered this to be the sole responsibility of Motorcycling NSW. He stated also that the motorcycle club or venue would need to hold a permit for each specific event and that the permits were granted by Motorcycling NSW. That is, there would be a track inspection by Motorcycling NSW before each race meeting.
That process never involved the Department. He considered that Motorcycling NSW was solely responsible for satisfying itself on compliance and safety for each event. It would send the Department a certificate of compliance and its general competition permit for the event.
He referred to the 2004 licence and noted that prior to the licence being granted Rob Madden, who was then General Manager of Motorcycling NSW, inspected the facility and approved it for relicensing and NSW Police approved relicensing on 1 July 2004. He says that Mr Madden was one of the most experienced motorcycle track assessors in NSW, if not Australia.
On further examination-in-chief, Mr Coulton referred to knowing Officer Kane and being aware that Officer Kane had originally not recommended the facility as suitable for relicensing but then reported further to him recommending relicensing on the basis that, although he had been unable to inspect the facility, he was aware that Mr Madden had completed an inspection and found the facility in a suitable condition for licensing.
Subsequent to receiving this correspondence, Mr Coulton recommended that the licence be renewed, having also received approval from Motorcycling NSW.
The recommendation was made to Mr Gregory Dresser who was the delegate for the Minister for Tourism, Sport and Recreation and was Mr Coulton's manager at the Department at the time. Mr Coulton also identified that the Department had received the permit issued by Motorcycling Australia in relation to the particular event, although he confirmed that the Department had nothing to do with the issue of that permit but merely received a copy for its records.
Mr Coulton said that approximately 260 licences were issued as of 2004. He noted that most of the tracks were in regional areas and 95 per cent of the requests to the Police go to regional Police stations.
Mr Coulton also stated that every time a permit is issued for a race event the steward or clerk of the course of the day carries out a safety check of the track to make sure everything is in compliance and signs off before the race meeting starts. As he said in cross-examination, the particular track was used 30 or 40 times a year and thus was inspected by the steward of the day 30 or 40 times a year. Mr Coulton accepted under cross-examination that the Minister delegates to the person within the Department for the purposes of the signing of the licences and that the Department's function was to administer the Act in such a way that secures public safety. He agreed that the purpose of the Act was to ensure public safety, including the safety of the competitors. He identified the role of the Police as a second phase of covering the Department or double-checking to have a second opinion on the facility. He said there was no obligation under the Act requiring the Department to receive a report from the Police.
He was not aware that there was a requirement of a 30-metre distance between jumps, stating that he was only made aware of matters from the Police and Motorcycling NSW.
Mr Coulton was also challenged on whether he saw his role as simply rubber stamping. He said that he would check the paperwork and that's all the Department could do as they are not experts. He said that it was not unusual that there would be second letters received changing recommendations in respect of the licences. He rejected this as a strange event and rejected what seemed to be suggested to him that he should have been making enquiries of the relevant police officer. He rejected criticisms of the way in which the Department performed its function and observed that the Police generally get all their information from the controlling bodies such as Motorcycling NSW.
The effect of Mr Coulton's evidence is that the Department administers the licensing process but that it relies on the relevant racing body, in this case, being Motorcycling NSW, for approval of the facilities including the racing tracks. It also seeks the approval of the Police and must be taken to rely on the Police recommendations, although Mr Coulton emphasised that he did not consider that obtaining approval from the Police was actually necessary.
It is also notable that Mr Coulton said that the role of the Police was more to check on the overall facility and that the representative of Motorcycling NSW would check on the actual track. He emphasised that the Department itself does not have the necessary expertise to determine whether the tracks are compliant with any relevant guidelines or regulations.
Perhaps understandably, Mr Coulton did not have a good recollection of the 2004 documentation but he maintained that the proper processes were complied with because he only recommended that Mr Dresser issue a licence after receiving the approval from Motorcycling NSW and the recommendation from Officer Kane.
There is nothing in Mr Coulton's evidence which would assist in making any findings as to the configuration of the track either at the time of the issue of the 2004 licence or on the day of the accident. Mr Coulton was not aware that the distance between jumps was less than 30 metres (if it was).
Further, whist Mr Coulton said that an applicant for a licence would include a map as part of the documents supporting the application (which is not necessarily consistent with the documents tendered by the State evidencing the yearly applications), he also said that the map was not to scale. This is directly contrary to the submission or case outline put forward by the plaintiff (see 16 above).
Mr Coulton must be taken to have been aware of the content of Officer Kane's two 2004 letters. He either failed to notice the inconsistency in the letters or proceeded on the basis that, despite apparently identifying issues of concern (which he did not specify) and, having recommended that a licence not be issued, the police officer simply changed his recommendation without a further inspection. This would be relevant when considering the question of breach of duty.
[17]
Delegation/vicarious liability
There is no evidence that the Minister had delegated his functions as set out in the MVSPSA to anyone other than Mr Dresser. Mr Dresser issued the 2004 licence. The Minister's functions included the issue, cancellation and variation of licences. The Minister could only delegate in writing.
The evidence does not support the plaintiff's submission that the Minister impermissibly delegated his function to either of Mr Coulton or Officer Kane.
Mr Coulton was responsible for collating the documentation and making a recommendation to Mr Dresser, his manager, to whom the Minister had delegated the function of issuing or cancelling the licence. There is no evidence that anyone other than Mr Dresser made the decision to issue the 2004 licence. Seeking expert advice from responsible bodies associated with the sport or the Police would not act as a delegation of the Minister's functions under the MVSPSA.
Asking experts to inspect the track does not operate as a delegation of the statutory function. It just enables the function to be exercised properly. Of course, whether it was so exercised properly in the circumstances, is another issue.
Further, reliance on the opinion of the representative of Motorcycling NSW, Mr Madden, does not render the State vicariously liable for his conduct.
Whilst the imposition of a vicarious liability may not be dependent on the classification of a particular relationship (Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [15]), there is nothing in the content of the relationship between the State and Mr Madden or Officer Kane which might give rise to a finding of vicarious liability.
There is no element of control or agency in that relationship. The Minister sought the advice from a representative of the sport's governing body that the facility was suitable for licensing. It is difficult to anticipate how else the Minister or his delegate might have determined that the facility was fit to hold a licence but, in any event, in doing so, the State did not create a relationship which imposed on it a vicarious liability for the conduct of the representative.
It would follow that, even if the representative of Motorcycling NSW had failed to take care in inspecting and reporting on the facility, the State would not be liable for his conduct. Nor does reliance on the opinion of the representative of Motorcycling NSW render the State vicariously liable for his conduct.
I thus do not accept the contentions of the plaintiff that the Minister delegated his functions to Officer Kane or Mr Coulton and that the State is vicariously liable for the errors and omissions of Mr Madden (if any).
[18]
The expert evidence
Two experts were retained in the proceedings and they provided reports as follows:
1. Dr Tim White - reports of 5 August 2015 (being a draft report), 20 June 2016 and 29 November 2018; and
2. Mr Chris Hall - report dated 10 July 2018.
Dr White and Mr Hall prepared a joint report dated 18 September 2019 and were cross-examined on their reports. There was some dispute between the parties as to the facts and thus Dr White and Mr Hall answered a series of questions with different assumptions.
Further, although Dr White had engineering expertise, he had no experience in motocross tracks. He said he would defer to Mr Hall on matters of design of the track. Although neither expert is in any better position than the other to interpret maps and where the jumps should have been, it is surely a matter of design and motocross practice and Dr White expressly deferred to Mr Hall on these matters.
In my view, much of the expert evidence is irrelevant. When prepared, the focus was on the liability of the other defendants. There is some agreement between experts in the joint report but only on the basis of assumptions they were required to make.
Further, Dr White accepted that his first report was based on incorrect assumptions. He was originally asked to assume that the configuration of the circuit was similar to that shown on Google Earth dated 16 October 2011. Dr White made no mention of the by-law requiring that the distance between jumps be at least 30 metres. He admitted in oral examination that he only became aware of the by-laws when reading the report of Mr Hall which was prepared in response to his report. He had previously opined based on the Motorcycling Australia standards which came into existence subsequent to the accident.
By the time of his second report of 29 November 2018 it was apparent that his original assumptions were incorrect. He was thus asked to prepare a further report on different assumptions as well as have regard to the report of Mr Hall and the information from the Police and Motorcycling NSW.
He was instructed to assume that the map which he refers to as Figure 1 of his report of 29 November 2018 was appended to the licence issued for 2004. That assumption was not otherwise established, albeit it is annexed to Dr White's report adjacent to the licence application. The map is an attachment to his report, as is another version of the application for a licence completed by the Club in 2004, but these documents were not included in the State's tender bundle of documents held by the Department relating to the 2004 licence application and the differing versions of the application were not the subject of questions to Mr Coulton.
Having said that, both experts ended up basing their opinions on the configuration of the track as shown in the mud map attached to the race day meeting for the day of the plaintiff's accident. The State specifically does not concede that the positioning of the jumps at the time of the plaintiff's accident was as shown on the mud map.
The relevance of the expert evidence to the plaintiff's case against the State is both as a basis for establishing the configuration of the track at the time of the application for and issue of the 2004 licence and as opinion evidence that the configuration was unsafe and not compliant with the Motorcycling NSW by-laws.
The experts are not expert in the administration of the licences and have nothing to say on the processes adopted by the Department in 2004.
Reliance on experts to establish critical facts can be fraught with difficulty. Even the parties could not agree on the assumptions/factual background to be put to the experts for the joint report. The experts were asked to answer different questions based on different assumptions for the purposes of the joint report. The questions and answers in the joint report were directed at the potential liability of the other defendants and the configuration of the track on the day of the accident, rather than at the time of application for the annual licence.
There was no admission by the State that the configuration was the same as at the time that the Club applied for a licence in 2004. There was no admission by the State that its officers knew or should have known either how the jumps were positioned or that the positioning contravened the by-laws.
As the plaintiff suggests in its case outline (see [16] above), Dr White and Mr Hall did agree that the distance between the jumps after Turn 1 was less than 30 metres but that agreement was conditional on a number of assumptions they were asked to make. They both acknowledged this in oral examination. They disagreed as to the distance based on different assumptions, Mr Hall opining that the distance was 30 metres.
Evidence was not adduced to confirm that the jumps were positioned precisely as set out in the race day map either on the day of the accident or when applying for the licence in 2004 but I am asked to infer that they were. That might be an appropriate inference, except that there is other evidence which needs to be considered in relation to the map before drawing that inference.
Further, the relevant time for the purposes of the case against the State is at the time of the licence application. There was no obligation imposed on the Minister under the MVSPSA to inspect the facility during the course of the year or to ensure that the operator was complying with its licence conditions.
There is other evidence which might impact on whether I should infer that, working backwards from the day of the accident, the track would have been configured identically at the time of inspection by Mr Madden and Officer Kane.
It is thus necessary to consider in some detail how both experts have come to their opinions.
[19]
Dr White
In para 34 of his report of 29 November 2018, Dr White says:
"34. With the information I have been provided, I cannot precisely determine the distance between the three jumps located between Turn 1 and Turn 2 on the actual circuit. However, assuming that the length of the start straight is unchanged at approximately 100 metres (as discussed in Section 5.1.1 of my first report), scaling suggests to me that the distance between the first two jumps is approximately 25 metres. Further, the first jump is only around 5 metres after Turn 1." (Emphasis in original.)
As such, in order to estimate the distance between the jumps between Turn 1 and Turn 2, Dr White assumes that the length of the start straight is at least 100 metres and then undertakes a scaling exercise, again assuming that the jumps were positioned precisely as shown on the mud map.
In his case outline (see 16 above), the plaintiff submits that there was a map provided to the Department at the time of the application for the licence and that the map was drawn to scale. Two problems arise immediately being that the plaintiff has not established that the map was provided as part of the application process and Mr Coulton said, when commenting generally on the process, that a map would be provided but that it was not to scale.
Having assumed that the circuit was as set out in Figure 1 of his report and reviewed earlier licensing documentation, Dr White concluded that:
1. The circuit was not likely compliant in 2000 when the licence was issued. He formed this view having regard to the letter from NSW Police, dated 27 June 2000, which included a statement that the 30 metre distance between jumps is right on the limit for two jumps. Contrary to Dr White's view, it does not seem to me that a statement that the jumps (not specified where) were right on the limit necessarily leads to a conclusion that they were not compliant;
2. The circuit was not compliant in 2001. He formed this view based on a statement from the inspecting Police Officer to the effect that a number of jumps were inside the 30 metre limit and his reference that work needs to be undertaken. What work was undertaken is not known; and
3. The circuit was not compliant in 2004. He formed this view because of the inconsistency between the original letter from Officer Kane not recommending relicensing and the subsequent letter recommending relicensing. The change of view by Officer Kane would not, of itself, justify the conclusion by Dr White that the track was non-compliant in 2004 because of the positon of the jumps as Officer Kane did not provide any details as to why he originally thought that a licence should not be issued for the facility.
Dr White concluded that the track had been made worse during the work which he assumed was completed in 2000 and 2001 although, again, at the time of commissioning his report, he did not know what had happened in 2002 and 2003 (if anything). Dr White also opined that the distance between jumps, in his estimate on the section between Turn 4 and Turn 5, was less than required. There was no further exploration of that comment in the proceedings and there is no reference to this suggestion in the plaintiff's outline.
The effect of Dr White's report of 29 November 2018 is that, based on the assumptions which he has made as to the configuration of the track:
1. the distance between the jumps after Turn 1 was only 25 metres;
2. the required distance was 30 metres; and
3. the distance between the first corner and the first jump after the first corner was only 5 metres which would have meant that the jostling for a position by the riders would have been exacerbated. He does not say that the distance between the corner and the first jump was contrary to any standard or by-law but merely that he considered it inappropriate.
[20]
Mr Hall
In his report of 10 July 2018, Mr Hall offered a different opinion.
Firstly, he rejected Dr White's initial opinion that there was a double jump between Turns 1 and 2. Dr White ultimately agreed that there was not a double jump between Turn 1 and Turn 2. According to Mr Hall there were two relatively low single jumps in the second straight separated by approximately 30 metres.
Secondly, he was of the opinion that the design of the track did not present any unnecessary hazard to competitors immediately after the start of the race.
He considered the first jump was relatively benign and capable of being safely negotiated under race conditions. He said there was sufficient distance for a rider who lost some stability on exiting Turn 1 to recover prior to reaching the first jump. He said that having regard to Stephen Shaw's description, the plaintiff had begun sliding down in Turn 1 before the exit and that he was past the point of being able to recover his balance and stability when he reached the first jump. As such, the presence and geometry of the first jump was irrelevant to the fall and the occurrence of the collision.
Mr Hall considered the circuit typical of a motocross track constructed on relatively flat land with man-made jumps installed to produce technical elements.
He concluded that the plaintiff must have been sliding excessively and almost capsized fully prior to reaching the first jump. If he had landed from the first jump in an almost upright condition and then slid down, he would have fallen to the track much further from the jump than 3 to 4 metres. That is, the point at which the plaintiff fell to the track after the first jump is suggestive of the plaintiff having lost control before he went over the first jump rather than losing control after he went over the first jump. As such, the position of the first jump was irrelevant to him losing balance.
Mr Hall noted the difference between the by-laws and subsequent standard but agreed that at the time the distance between jumps was required to be 30 metres minimum (from the top of one jump to the top of the next one). He opined that there was 30 metres between the first jump and the second jump and that the placement of the jumps relative to each other complied with the by-laws. Further, Mr Hall says that there was, and still remains, no regulation in relation to the placement of obstacles before or after a corner.
In his opinion, it was common at motocross circuits throughout the world for mounds or jumps to be placed immediately before, within and immediately after corners.
As such, he maintained that the circuit was compliant and consistent with other similar tracks.
[21]
The joint report
Much of the content of the joint report is no longer relevant to the plaintiff's claim because the plaintiff is no longer proceeding against the Club or Motorcycling Australia or Motorcycling NSW.
The parties asked the experts to answer questions based on different assumptions. This produced different results. For example, in para 1.14 of the assumptions which the experts were asked to make by the plaintiff is the following assumption:
"The plan of the Oakdale Junior motorcycle club racetrack prepared by John M Daley and Associates Pty Ltd ["the Daley plan"] and attached to the license issued for the subject event, shows the positioning of three jumps between turn 1 and turn 2 and within a distance of 58 meters."
Having been asked to assume this, both experts then agreed that there was non-compliance with the by-law with respect to the spacing between jumps. However, Mr Hall opined that the non-compliance only related to the placing of the second jump which was not reached by the plaintiff. Dr White said that jump spacing did contribute to the incident because three jumps existed between Turns 1 and 2 and the squeezing effect meant that the first jump was moved unreasonably close to the exit of Turn 1.
The Daley plan was prepared in 2002, presumably at the time that work was being undertaken on the track as referred to in the Police documents. The plans included in the raceday books in evidence (being for the King of the Valley event on 24 July 2004 and the State Championships on 22 August 2004) appear to be copies of this plan, albeit with additional markings.
To infer that the map included in the raceday book on 22 August 2004 showed the precise position of each jump on that day necessarily requires me to find that there were no changes at all in the jumps between 2002 and 2004 and that the position of the jumps as drawn on the map was intended to reflect the precise positioning of each jump relative to each other jump and the turns.
That may be right but there were 30 to 40 events conducted on the track every year, according to Mr Coulton. Further, the purpose of the original Daley plan is not the subject of evidence. One possibility is that the plan was drawn up by John M Daley and Associates Pty Ltd at the request of the Club to identify the position of the jumps after the work on the track was completed. As Senior Constable Roberts specifically identified in 2001 that there were a number of jumps within the 30-metre limit but that this and his other concerns were being attended to (i.e. work was being done), it might be surprising, if on completion of the work, the problem specifically identified had not been attended to.
The defendants asked the experts to assume that the configuration of the track and the position of the jumps between Turn 1 and Turn 2 had not altered between 2004 and 2011. On this basis, Mr Hall said that based on measurements from aerial imagery from 2010 which shows that the jumps were approximately 30 metres apart, the relevant section of the track complied with the by-law. The assumption behind this opinion is that the configuration of the track was the same in 2010 as it was in 2004. There is no evidence about that either way.
Dr White questioned the validity of the assumption and maintained his view, based on his own different assumptions.
Even accounting for the differing assumptions and opinions, the only way in which the track is said by the experts to have been non-compliant with any standard or by-law is that the distance between the jumps was insufficient and contrary to the Motorcycling NSW by-laws because the gap was only 25 metres rather than a minimum of 30 metres.
Neither expert inspected and measured distances on the actual track.
They were not able to say from their own knowledge how the track was configured in 2004 either at the time of the issue of the licence in July 2004 or on the day of the event. Both made concessions about the potential for their estimates to be inaccurate.
Mr Hall confirmed that his agreement as to non-compliance between jump one and jump two was based on the assumption as to the validity of the particular plan and that it was accurate and to scale and precisely depicted what was there on the day.
Dr White confirmed that he also proceeded on that assumption and, as such, they both agreed that whether there was compliance with the by-law was entirely dependent upon the assumptions being satisfied.
Dr White agreed that a motocross track is a dynamic thing in terms of the positioning of the jumps because the jumps may be graded for a particular day.
Dr White agreed that there would only need to be a variation of an eighth of a millimetre on the mud map to change the estimate by 1 metre. As such, if the position of the second jump on the plan was out by a few millimetres the result would be different and there would not be non-compliance.
This issue was also taken up with Mr Hall by Mr Cranitch. Mr Hall agreed that some slight grading and smoothing of the track would not have made any difference in general terms.
The evidence as to the distance between jumps at the track at the time of the licence application is unsatisfactory and in such a state of uncertainty that I am unable to find that the track was non-compliant with the by-law because of the distance between the jumps between Turn 1 and Turn 2 as at the time of the application for the licence in 2004.
Bearing in mind the other events held at the track, I would not infer that the track configuration was always the same between 2002 and 2004. It may have been but there is no evidence either way. Just as the evidence does not allow me to infer that the track was always the same between 2004 and 2011 as Mr Hall originally assumed it was, I would not infer with that evidence that it was always the same between 2002 and the day of the accident.
Similarly, the evidence does not allow me to draw the inference that the configuration of the jumps on 22 August 2004 was identical to the configuration when the Police and Mr Madden inspected the track for the 2004 licence renewal application. It may have been, but the mere attachment of a map first brought into existence in 2002 to the race day booklet in 2004 does not of itself establish that there was no change to the grading and positioning of the jumps at any time.
Finally, the estimates given by the experts are just that. I am not satisfied that the scaling and comparative measurement exercise undertaken by the experts off a map which has not itself been confirmed to be precise as to the position of the jumps is a satisfactory way of concluding that the distance between the jumps was less than 30 metres. There are too many unproven assumptions associated with that exercise.
Further, a conclusion that the track was non-compliant on 22 August 2004 and non-compliant in May to July 2004 necessarily means that it was non-compliant for every event since 2002 (as the plaintiff is relying on a copy of the Daley plan of 2002 to establish the configuration of the track on the race day).
It would follow from such a finding that every expert representative from Motorcycling NSW who inspected the track both for the purposes of annual licensing and issuing the permit necessary for each event had failed to detect that the track was non-compliant with the by-laws of the body which it represented.
As I do not consider that the documents admitted as part of the process of licensing for 2000 to 2004 support the plaintiff's contention, I would be basing the finding which the plaintiff seeks on an estimate of distance by an expert or experts in 2019 from a map, the accuracy of which is itself in dispute. In my view, the methodology adopted by the experts leaves room for error when precision is necessary to support the factual assertion made by the plaintiff.
Further, even if I were to accept the measurements and find that the distance between jumps was 25 metres, Mr Hall does not agree that the track was unsafe.
I accept Mr Hall's evidence that the placement of the first jump close to the first turn was not inappropriate. Neither expert suggested that its positioning was contrary to any standard or by-law.
It may be that if the first jump had been placed further away from the exit from the first turn, the plaintiff would have had more time to regain his balance before having to take the first jump. However, the fact that the accident may not have occurred if the track had been configured differently does not mean that the track was unsafe. Nor is that suggestive of negligence.
Motocross racing involves a number of riders on similar bikes attempting to take a corner all at the same time and then testing their skill by being required to take a jump after coming around the corner. According to Mr Hall, this is part of motocross racing.
In all the circumstances, I do not consider that the expert evidence assists the plaintiff. It does not provide a proper foundation for the plaintiff's claim.
The plaintiff has not established that which he asserts in the outline of his case to which I have referred earlier in this judgment. That is, he has not established that the track was non-compliant with any by-law, regulation or standard either at the time of the issuing of the licence or at the time of the accident. He has not established that the jumps were incorrectly positioned, in the sense that the second jump was less than 30 metres from the first jump or that the first jump was too close to the turn or that the position of the jumps rendered the track inherently unsafe.
The accident happened because the plaintiff was clipped by another bike as he came around the corner. Before he reached the first jump he had already lost control of his bike because he went over the first jump at an angle and thus did not land safely. It is correct to say that, if the jump had been further away from the turn, the plaintiff may have had more time to straighten up or he may have not made it over the jump at all (and thus the other bike would not have landed on him) but this is really just looking backwards, having regard to the circumstances of the accident and is not suggestive of negligence: see Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13].
Whatever criticisms might be levelled at Officer Kane or Mr Madden and the processes adopted by the Department, they are of no consequence without the underlying finding that the licence should not have been issued because the track was unsafe and non-compliant at the time. Not having established the factual premise on which he pursues the State, the plaintiff is not entitled to succeed against the State.
Further, even if the track was not compliant with the by-law and was unsafe for racing at the time of the issue of the licence and I accepted that there was negligence in the processes leading to the issue of the 2004 licence, the plaintiff would fail on causation.
[22]
Causation
The plaintiff bears the onus on causation: s 5D of the CLA. Having regard to my findings as to the circumstances of the accident and the expert opinion, neither the position of the first or second jumps caused the plaintiff to lose balance and fall. Both experts agreed that the distance between the first and second jumps did not cause the plaintiff to fall.
I prefer the opinion of Mr Hall on the significance of the position of the jump closest to the turn, it being a design issue. This is presumably why the plaintiff puts his case against the State on the basis that it was negligent in the process of issuing the licence, that is, if the licence had not been issued, the race would not have taken place. His case against the other defendants must have been based on the condition of the track on the day of the accident but his case against the State could only be based on the non-compliance and unsafe condition of the track at the time of the application for licence (with an assumption that it remained the same at the time of the race on 22 August 2004).
I acknowledge that in a judgment such as this it would normally be appropriate to deal with questions of duty and breach before considering causation but I am dealing with causation at this point because in my view, whatever the findings on breach, there would remain a fundamental problem on causation.
The plaintiff must establish that if any of Officer Kane, Mr Madden or Mr Coulton had performed their tasks properly (assuming that the State is liable for their conduct) or if the State had carried out whatever further enquiries the plaintiff might suggest having regard to Officer Kane's inconsistent correspondence, the State would have become aware that the track was non-compliant and unsafe (assuming that it was) and would not have issued the licence. If I assume that, it would then be necessary for the plaintiff to establish that the race meeting on 22 August 2004 would not have gone ahead as the track would not have been the subject of a licence.
That is an unlikely proposition and one I would not accept without evidence.
If the problem with the track that should have been identified at the time of the 2004 licence application was either that the distance between the jumps was less than required by the by-laws or that the first jump was too close to the turn, I would not find, without evidence in support, that the State Championships would not have taken place at Oakdale on 22 August 2004. Even identifying some more general non-compliance would not assist the plaintiff.
That is because the obvious solution to the State refusing to issue a licence in July 2004 because of the positioning of the jumps would be to change the position of the jumps. The jumps are essentially compacted mounds of dirt.
If the State refused to issue a licence for the 2004-05 year based on non-compliance due to the positioning of jumps, then bearing in mind the nature of the facility and the type of events which were planned including the State Championships, the most likely solution to the problem would have been for the operator to make the track compliant. This facility had been operating for many years prior to 2004. If a problem with the track was identified in mid-2004, it may be that the most likely course would have been for the operator to remedy the problem rather than close the facility. I do not know how long this might have taken as it is not the subject of evidence. I am left to speculate on what might have happened but for the alleged failings of the State and those for whom the State is said to be responsible in mid-2004.
In my view, this presents as a fundamental flaw in the plaintiff's case against the State. The plaintiff has not established that, if the State had properly identified the alleged non-compliance in the track at the time of the application for licence and refused to issue a licence or issued a licence with extra conditions, the operator of the track would have simply abandoned its application for a licence rather than fixing up the track to make it compliant. No evidence was adduced which would enable such a finding to be made.
The plaintiff has thus not established the two matters of fact essential to his cause of action being:
1. that the track was non-compliant and unsafe in July 2004; and
2. even if it was, any error or omission of the State at the time of issuing the licence, whatever it might have been, caused the accident.
[23]
Dangerous recreational activity
Having made factual findings (if they were consistent with the plaintiff's claim) the next stage in the analysis would be a consideration of whether the plaintiff has established all elements of s 5B of the CLA, but the State relies on s 5L of the CLA as a defence to the claim in negligence against it.
As set out in s 5L of the CLA, the State is not liable in negligence for harm suffered by the plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
As observed by Beazley P in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [5], as s 5L of the CLA may operate as a complete defence to a claim in negligence it is the logical, if not required starting point, for consideration of the plaintiff's claim. For the purposes of the s 5L defence, it is not necessary to consider whether or why the defendant was negligent. Section 5L of the CLA is not concerned with the basis on which the defendant might be negligent. The defence operates if the harm suffered is as a result of the materialisation of an obvious risk of the dangerous recreational activity.
Dangerous recreational activity is defined in s 5K of the CLA to mean "a recreational activity that involves a significant risk of physical harm". Recreational activity is also defined in s 5K and includes any sport or any pursuit or activity engaged in for enjoyment, relaxation or leisure.
Plainly, the plaintiff was involved in a recreational activity.
Further, the activity engaged in by the plaintiff was a dangerous recreational activity. It involved a significant risk of physical harm. In Campbell v Hay [2014] NSWCA 129 at [116], Ward JA observed:
"Consideration was given to the meaning of "significant risk of physical harm" in Falvo v Australian Oztag Sports Association [2006] NSWCA 17 and Fallas, from which a number of propositions can be drawn. The definition of "dangerous recreational activity" must be read as a whole (Ipp JA, with whom Hunt AJA and Adams J agreed, at [28] in Falvo). Regard must be had both as to the nature and degree of harm that might be suffered, on the one hand, and the likelihood of the risk materialising on the other (Falvo per Ipp JA at [28]). The expression constitutes one concept with the risk and harm mutually informing each other (such that the risk of physical harm may be significant if the risk is low but the potential harm is catastrophic or if the likelihood of both the occurrence and the harm is more than trivial; but the risk of physical harm may not be significant if, despite the potentially catastrophic nature of the harm, the risk is very slight) (Falvo per Ipp JA at [31]). "Significant risk" has been said to mean more than trivial and does not import an "undemanding" test of foreseeability (Fallas per Ipp JA at [14]); it does not mean a risk that is likely to occur (Fallas per Ipp JA at [16]) but lays down a standard lying somewhere between a trivial risk and a risk likely to materialise (Fallas per Ipp JA at [18]); and as a general guide, it means a risk that is "not merely trivial, but generally speaking, one which has a real chance of materialising" (Tobias JA at [90]-[91], this being the test his Honour applied later in Jaber v Rockdale City Council [2008] NSWCA 98 at [54]). An objective test is required in determining whether a recreational activity was dangerous (Fallas per Ipp JA at [13]; Basten JA at [136])."
Indeed this was accepted by the plaintiff. [15]
As set out in s 5F of the CLA, an obvious risk is one that, in the circumstances, would have been obvious to a reasonable person in the position of the person who suffers harm.
In my view, the risk of being clipped by another bike and falling off would have been obvious to a reasonable person in the plaintiff's position. Whether the risk is obvious is to be determined objectively with reference to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment: Jaber v Rockdale City Council [2008] NSWCA 98 at [54]; Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247; [2004] Aust Torts Rep 81-754.
In circumstances in which perhaps 20 motorbike riders are participating in an activity which requires them to travel at speed in close proximity to each other around a dirt track and take jumps as part of that activity, then the risk of the plaintiff suffering harm as a result of colliding with another bike or even just falling off the bike would have been obvious to a reasonable person in the plaintiff's position.
It could hardly be disputed that the consequences of being struck by a motorbike or falling off the motorbike during a race might lead to suffering of harm of the most severe type.
Further, the risk was obvious. A person using reasonable perception and intelligence would know that a risk arising from participating in such an activity would be the risk of falling off and being struck by another motorcycle.
The plaintiff himself volunteered that everyone knew that the activity was dangerous. [16] As the test is objective, his own beliefs are not determinative but, in my view, on any analysis of risks associated with the sport of motocross racing, the harm suffered by the plaintiff arose as a result of the materialisation of an obvious risk of a dangerous recreational activity.
Mr Cranitch accepted that the risk of a collision with another rider was an obvious risk but he submitted that the risk for the purposes of s 5L was the risk associated with riding on a non-compliant track. He said that the fact that the track was not compliant and unsafe would not have been obvious to a reasonable person in the plaintiff's position.
I do not agree with Mr Cranitch's characterisation of the risk for the purposes of s 5L of the CLA. The harm did not arise as a result of the materialisation of a non-compliant track or an unsafe placement of a jump. Those facts might have led to a finding of negligence against someone but the harm arose as a result of the plaintiff falling off his bike. In any event, even if the track was non-compliant, the evidence would not support a finding that such non-compliance caused the plaintiff to fall. The experts agreed that the only possible issue of non-compliance related to the distance between the first and second jumps. The gap between these jumps did not cause the plaintiff any harm. It could hardly be said that the harm arose out of the non-compliance in those circumstances.
The defence afforded by s 5L of the CLA is established.
[24]
Negligence
The first step in the proper application of s 5B of the CLA is the identification of the risk of harm. As was emphasised by Gummow J (with whom Heydon J agreed) in Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59], "[i]t is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be."
It is necessary to identify the risk of harm so that the Court can then consider whether the risk was foreseeable, not insignificant and whether a reasonable person would have taken the precautions suggested: CLA s 5B(1); see also Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102] ("Uniting Church v Miller"); Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172 at [52].
The plaintiff identified the risk of harm as the risk of being clipped by another rider as a result of the presence of an incorrect placement of a jump after the first corner. [17] That is, the plaintiff identified a very specific categorisation of the risk of harm.
Mr Polin SC, who appeared on behalf of the State, identified the risk of harm as being the risk of competing in the sport of motocross and losing control. [18] Mr Watson SC, who appeared on behalf of the cross-defendants, identified the risk of harm as motocross riding although he accepted that there may be a number of ways of describing the risk of harm in this matter. [19]
The risk of harm may be identified generally or more specifically: Uniting Church v Miller at [118]-[119] (Leeming JA). In identifying the risk of harm, the Court may have regard to what actually happened, unlike the question of breach which must always be considered prospectively.
The risk of harm suggested by the plaintiff is very specific. I am not sure that it even encompasses the precise circumstances of the accident in the sense that it necessarily assumes that the plaintiff's bike was clipped by the other rider as a result of the incorrect placement of the first jump. This has not been established.
The plaintiff also submitted that the risk was the risk arising from a non-compliant track. The risk of harm for the purposes of s 5B of the CLA is not identified with reference to the alleged negligence. That confuses concepts.
Nor do I accept that the risk of harm may be identified so generally as merely to describe it as being involved in motocross riding. The proper identification of the risk of harm requires some reference to that which actually happened. That is, it is necessary to identify the true source of injury.
In my view, the true source of injury was falling off the bike as a result of coming into contact with another bike. That was the risk of harm. The fact that the plaintiff was then hit by another bike whilst on the ground was a consequence of being clipped by the first bike and falling off.
It may not matter whether there may be more than one way to identify the risk of harm in a case such as this as, on any variation of the risk of harm to encompass the circumstances of what actually occurred, the risk was foreseeable within the meaning of s 5B(1)(a) and not insignificant within the meaning of s 5B(1)(b) of the CLA.
That is, whether the risk was the risk of: the plaintiff falling off the bike; another rider hitting his bike; another rider landing on him after he had fallen off; the plaintiff losing control of his bike on a corner before a jump, or whether the risk is described more generally, such a risk was reasonably foreseeable and not insignificant.
The critical issue, assuming the track was unsafe and non-compliant, would be whether there were reasonable precautions which the State should have taken within the meaning of s 5B(1)(c) and s 5B(2) of the CLA. It is not clear what reasonable precautions the plaintiff contends should have been undertaken.
It is one thing to say that the State should not have issued the licence (with or without conditions) but all duties of care may be discharged by the exercise of reasonable care. Even on the plaintiff's case, the State did not know that the track was non-compliant.
The plaintiff has not identified what steps the State should have taken to ascertain that the track was non-compliant in mid-2004 (that is, what it should have done differently, assuming that seeking advice from the Police and Motorcycling NSW did not operate as impermissible delegations).
Perhaps this is why the plaintiff ultimately pursued a case that the State was vicariously liable for the conduct of Mr Madden and Officer Kane and that the State had impermissibly delegated its function to Mr Madden and Officer Kane.
Whilst there are many particulars of negligence pleaded, most could not possibly arise and the plaintiff refined his case in his oral and written submissions. Since the plaintiff has not established the factual basis on which he proceeds, nor that the Minister impermissibly delegated to Officer Kane or Mr Madden, and since the State has established its CLA s 5L defence (which operates no matter what the findings of negligence might have been), it is not necessary to further consider on what basis the State might have been found negligent on different factual findings, having regard to ss 42, 43A and 44 of the CLA and whether and how other defences raised might have arisen on different factual findings.
[25]
Conclusion
In the circumstances, I order that:
1. Judgment for the fourth defendant against the plaintiff.
2. The cross-claims are dismissed.
[26]
Costs
Subject to any submissions from the parties, costs should follow the event, but I will hear the parties on costs.
[27]
Endnotes
Tcpt, 28 October 2019, pp 164(41).
Ex C.
Ex R.
Ex R.
Tcpt, 28 October 2019, pp 164(41).
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 AC 223.
Ex G.
Ex G.
Ex L.
Ex M.
Ex N.
Ex K.
Ex F.
Ex F para 7.
Para 10(c) of plaintiff's outline of submissions.
Tcpt, 21 October 2019, p 17.
Tcpt, 28 October 2019, pp 165-6.
Tcpt, 28 October 2019, p 171(26).
Tcpt, 28 October 2019, pp 182-3.
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Decision last updated: 06 March 2020