The Nominal Defendant v Buck Cooper - [2017] NSWCA 280 - NSWCA 2017 case summary — Zoe

NSWNSWCA

The Nominal Defendant v Buck Cooper

[2017] NSWCA 280

Court of Appeal (NSW)|2017-09-07|Before: McColl JA, Payne JA, Garling J, Coll JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2017-09-07

Before

McColl JA, Payne JA, Garling J, Coll JA

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

Background facts

On 16 October 2013, at 5:15 am, the respondent was severely injured in a motorcycle accident on Lake Conjola Entrance Road at Lake Conjola.
The respondent and his friend, Timothy Lamont, had earlier decided to go motorcycling together. At the time of the accident, the respondent was travelling west on Lake Conjola Entrance Road on his unregistered off-road motorcycle. Mr Lamont was travelling east on the same road on his own unregistered off-road motorcycle. Neither motorcycle was fitted with a headlight.
Prior to the accident, Mr Lamont and the respondent had been drinking together. The extent of that drinking, and the effect of alcohol on the respondent, were issues in the case.
A significant collision occurred between the two motorcycles. It was an agreed fact between the parties that the point of collision between the motorcycles was on the respondent's side of the road, 1.5 m from the midpoint on the road. Mr Lamont struck the respondent on his left, that is, between the respondent and the nearside curb. Accordingly, Mr Lamont was likely to have been even further than 1.5 m from the centre line on the incorrect side of the road.
The appellant submitted that the precise location of the collision was "purely coincidental" and it was the respondent's want of care for his own safety and his voluntary decision to participate in an inherently risky, unnecessary and illegal activity with Mr Lamont which caused his injuries.

[2]

Principal factual findings made by the primary judge

As noted at the outset, the findings of the primary judge were voluminous and occupied 220 pages. For the purposes of this appeal the critical findings can be briefly stated.
The primary judge made the following factual findings concerning Mr Lamont: 1. he rode his motorcycle whilst intoxicated having a blood alcohol concentration of 0.156g/100ml; 2. his ability to ride a motorcycle at that time was very substantially impaired; 3. as a result of his intoxication he rode across the centre line of Lake Conjola Entrance Road, over the central camber and passed across the path of the respondent causing the two machines to collide on the left hand side; 4. he travelled slightly in excess of 10 km/h over the applicable speed limit and that increased speed materially contributed to the violence of the collision; 5. he was fatigued and that fatigue could not be excluded as a cause of the accident; 6. he failed to heed the noise of the respondent's motorcycle engine on its approach which ought to have alerted Mr Lamont to keep left.
The primary judge made the following factual findings concerning the respondent: 1. he rode his motorcycle under the influence of alcohol but was not "as badly affected by his alcohol consumption" as was Mr Lamont; 2. he was fatigued and that fatigue could not be excluded as a cause of the accident; 3. he assumed the risk of riding in company with Mr Lamont and ought to have realised that in doing so he was running the risk of the occurrence of what actually occurred or some similar harm; 4. the fact that each of the riders was riding an uninsured and unregistered motorcycle was irrelevant because exactly the same accident would have occurred if both motorcycles had been registered and insured; 5. the absence of a headlight on the respondent's motorcycle played no causal role in the accident. A motor vehicle, including a motorcycle, could be seen by any other motorist even in the absence of any vehicular light on the relevant section of Lake Conjola Entrance Road at night.

[3]

Issues on appeal

The appellant's amended notice of appeal filed on 31 May 2017 contained 16 grounds of appeal, which can be summarised as follows: 1. the primary judge erred in his construction of s 5I of the Civil Liability Act 2002 (NSW) and in finding that the relevant risk of harm was not an "inherent risk" which could have been avoided by simply not engaging in the relevant activity (grounds 1, 2 and 3); 2. the primary judge erred by failing to consider the respondent's reduced riding skills and knowledge of Mr Lamont's reduced riding skills in identifying the risk of harm for the purposes of s 5B of the Civil Liability Act (ground 4); 3. the primary judge erred in finding that Mr Lamont owed the respondent a duty of care and that the circumstances of the collision were not "special and exceptional" or extraordinary (grounds 5 and 6); 4. the primary judge erred when assessing the relative culpability of the respondent and Mr Lamont and assessing 33 per cent contributory negligence on the part of the respondent (grounds 7, 9, 11, 13 and 13B) by making the following factual errors that were speculative and/or not supported by the evidence: 1. that the effect of a similar alcohol intake on the respondent would not be as great as on Mr Lamont and that the respondent was not "as badly affected by his alcohol consumption as was Mr Lamont" (ground 8); 2. that the visibility at the time of the collision was such that vehicular lighting was unnecessary (ground 10); 3. that the respondent's ability to hear Mr Lamont's motorcycle was affected by his helmet (ground 12); 4. that Mr Lamont was travelling a little in excess of 10 km/h over the speed limit and that increased speed materially contributed to the violence of the collision (ground 13A). 1. the primary judge erred in finding that the respondent had no residual earning capacity (ground 14); 2. the primary judge erred in finding that the respondent's earning capacity as and from 1 July 2016 was $1270 net per week (ground 15); 3. the primary judge erred by failing to properly consider the respondent's most likely future circumstances but for injury pursuant to s 126 of the Motor Accidents Compensation Act 1999 (NSW) (ground 16).
The respondent filed a notice of contention on 31 May 2017 containing the following grounds: "1. To the extent that the primary judge may have made overly precise and speculative findings in relation to the alcohol consumption of the Respondent, such error is not limited to the issues raised by the Appellant in the Notice of Appeal, but included the findings that: (i) The balance of the beer purchased by Lamont in Nowra on the afternoon preceding the accident was transported to Lake Conjola and consumed at Lake Conjola. (ii) The Respondent and Lamont had consumed similar or comparable amounts of vodka (ie that they had consumed identically mixed drinks with identical frequency) over the evening preceding and the morning of the accident. 2. The Respondent contends that the primary judge was not entitled to any more precise finding about the Respondent's level of intoxication beyond concluding that the Respondent had been drinking and was still affected by alcohol at the time of accident. Any attempt by the primary judge to assess with precision the Respondent's degree of intoxication comparable to Lamont involved undue speculation based on unproven assumptions. 3. The primary judge's findings as to intoxication played little to no role in the determination of relative culpability (with both the Respondent and Lamont being intoxicated). 4. The primary judge's findings as to intoxication played little to no role in the ultimate determination of contributory negligence. 5. The primary judge appropriately assessed 33% contributory negligence, having regard to the relative culpability of the two men and in particular Lamont's breach of a fundamental principle of driving in failing to keep to the left."

[5]

Intoxication - ground 8

The first error alleged is in relation to the primary judge's finding about the respondent's level of intoxication. The primary judge found that the levels of intoxication of the respondent and Mr Lamont "may have been similar". The primary judge also found that "it is likely that the two men consumed a similar amount of alcohol over the afternoon and night in question".
Dr Perl gave evidence that Mr Lamont's likely blood alcohol concentration at the time of the collision was 0.156g/100ml. A driver in that state would be "very substantially" impaired.
The appellant complained that the primary judge concluded that despite his finding that the two men had consumed a similar amount of alcohol over the afternoon and night in question, it "does not mean that, therefore, they were in fact similarly affected by the alcohol intake". The primary judge opined that: "The [appellant's] seniority to Lamont indicates to me (as well as their respective alcohol habits) that the [appellant] was the more experienced, practised or seasoned drinker, and, therefore, as Dr Perl has pointed out, the effect of a similar alcohol intake on the plaintiff would not be as great as on Lamont".
The appellant submitted that there was no evidence to support this finding and that it was impermissible conjecture: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19. The appellant submitted that the evidence was capable of supporting an inference that the respondent was intoxicated to a similar level to Mr Lamont. It was submitted that such an inference should more readily have been drawn having regard to the fact that the respondent's wife was present during the relevant events and was not called to give evidence. The appellant noted that the primary judge drew an inference by reason of her failure to give evidence that her evidence "would not have advanced the plaintiff's case".
The respondent accepted that the primary judge's ultimate conclusion about the level of the respondent's intoxication was based upon impermissible speculation. The respondent submitted, however, based upon the matters in the notice of contention, that all of the primary judge's fact finding about intoxication was based upon impermissible speculative reasoning about the amount of alcohol the respondent had consumed.
The respondent's complaints about the primary judge's intoxication findings were as follows: 1. the primary judge found that the two men between them consumed an entire bottle of vodka and a case of 24 bottles of beer; 2. the primary judge's reason for so concluding was that Ms Bates gave evidence that Mr Lamont was a frequent and heavy drinker and that he could not and did not stop; 3. the inference drawn by the primary judge was that the two men drank similar amounts of alcohol. This conclusion was based on the primary judge's finding about the "social mores of our society". The respondent submitted that the primary judge could not take judicial knowledge of that matter: s 144 Evidence Act 1995 (NSW).
The respondent submitted that Ms Bates' evidence was to the effect that: 1. vodka was being drunk with lemonade or lemon squash; 2. her primary focus was on looking after her daughter, and that they were sitting on the lounge watching television; 3. she was not watching exactly how much each of the men had to drink; 4. she was not keeping track of how much vodka and how much mixer was in any individual glass.
The respondent submitted that Ms Bates' evidence provided no support for the primary judge's conclusion that the two men went "drink for drink" or that the drinks were of equal strength.
The respondent also submitted that, even assuming that the two men had consumed similar amounts of alcohol, it was speculation to conclude that the respondent had been less affected by alcohol simply because he was five years older. Contrary indications were: 1. Mr Lamont was an experienced and heavy drinker; 2. although the respondent had in the past been a heavy drinker that had not been the case for at least 12 months prior to that evening; 3. vodka was Mr Lamont's preferred drink and not the respondent's.
The respondent submitted that the evidence established that Mr Lamont was intoxicated. His level of intoxication could properly be determined based on the blood alcohol concentration evidence of Dr Perl.
The respondent submitted that the inferential reasoning of the primary judge about the level of the respondent's intoxication was no more than speculative guesswork. On the evidence, the only finding open was that the respondent was intoxicated, with no assessment possible as to his level of intoxication relative to that of Mr Lamont.

[6]

Conclusion about intoxication - ground 8

Ultimately, the issues which divided the parties on the question of the relative level of the respondent's intoxication were more apparent than real. Each party agreed that the respondent was intoxicated and that the primary judge's ultimate conclusion that the respondent was less intoxicated than Mr Lamont amounted to impermissible speculation. The issue which remained between the parties was whether it was possible on the evidence to draw any conclusion about the respondent's level of intoxication compared to that of Mr Lamont.
In my view, the evidence does not permit any precise finding about the respondent's level of intoxication compared to that of Mr Lamont and the primary judge erred in his findings about the respondent's level of intoxication for the reasons that: 1. there was no sufficient evidence before the primary judge about the amount of alcohol the respondent had consumed; 2. in particular, Ms Bates' evidence did not permit any conclusion about the amount of alcohol the respondent had consumed; 3. Ms Bates' evidence did not address the quantity of alcohol the respondent had consumed or the content of any one of the glasses consumed by him of mixer compared to vodka.
The evidence of the respondent's drinking of both beer and vodka in the afternoon and evening with Mr Lamont and the evidence of their "yahooing" chasing kangaroos on Mr Lamont's property in the dark shortly before dawn certainly permitted a finding that the respondent was intoxicated at the time, and shortly afterwards when he began riding his motorbike.
On the evidence, however, no precise identification of the respondent's level of intoxication relative to that of Mr Lamont should have been made. The primary judge fell into error in making the apparently precise findings about the respondent's level of intoxication that he did. That is, his Honour should have concluded that Mr Lamont was intoxicated to the extent measured by Dr Perl and the respondent was intoxicated to an indeterminate extent.
I will return to this conclusion when addressing the question of contributory negligence.

[7]

Visibility - ground 10

On the question of visibility the primary judge found that: "The question of visibility at night, in the 'dark', can be shortly described as perfectly adequate to illuminate the entire stretch of [Lake Conjola Entrance Road] relevant to the collision. A motor vehicle, including a motorcycle, could be seen by any other motorist or rider even if neither vehicle was burning any light or reflecting any light and vehicular light was not necessary to traverse this section of [Lake Conjola Entrance Road] at night."
The appellant submitted that this finding was based entirely on the primary judge's subjective assessment of the level of ambient light based on his observations during a view of the accident scene conducted on the evening of 1 June 2016 during the course of the trial.
The appellant submitted that it was impermissible for the primary judge to infer that the conditions of lighting and visibility at the time of the accident were similar to those observed by him at the time of that view.
The appellant submitted that this error was compounded by the fact that this evidence was contrary to that of two witnesses, Ms Maxwell and Mr Sandilands, who were present at the scene at the time of the accident. The police statements by these witnesses were admitted into evidence without challenge and the witnesses were not cross-examined. Their evidence was to the effect that it was dark at the time and they each had difficulty seeing the participants in the collision and the roadway as it was poorly lit.
The respondent submitted that the primary judge conducted a view at the scene of the accident at night. The timing of the view was fixed so as to ensure that it occurred at night and the only relevant illumination would be from the available street lighting. The respondent submitted that: 1. no relevant concern was raised during the course of the hearing about the judge taking into account evidence of what he had seen at the view; 2. following the view, the primary judge provided a document in Court setting out his observations for the purpose of permitting the parties to raise any issue of concern. That document became Exhibit RR; 3. paragraph 7 of Exhibit RR contained the observation that the northern side of the road was "well defined and illuminated for a vehicle travelling east along the Way [road] to the datum"; 4. the only issue raised by the appellant at the trial was that the judge should also note that the westbound carriage way was also "well-illuminated"; 5. the primary judge's findings about visibility contained in Exhibit RR were not raised or challenged in the appellant's written or oral submissions to the primary judge; 6. the appellant did not advance any oral or written submissions about the primary judge's findings on visibility contained in Exhibit RR. In particular, it was not submitted that those findings were contradicted by the statements of Ms Maxwell or Mr Sandilands.
In these circumstances, the respondent submitted that the appellant should be bound by its acquiescence to the findings by the primary judge following the view about the visibility on the roadway.

[8]

Conclusion about visibility - ground 10

The primary judge did not err in his conclusion about visibility for the following reasons.
First, it was common ground at the trial that the visibility was as recorded in the primary judge's judgment following the view. Section 54 of the Evidence Act allowed the primary judge to draw reasonable inferences based upon his view. The primary judge observed that "[t]he question of visibility at night, in the 'dark', can be shortly described as perfectly adequate to illuminate the entire stretch of LCER relevant to the collision. A motor vehicle, including a motorcycle, could be seen by any other motorist or rider even if neither vehicle was burning any light or reflecting any light and vehicular light was not necessary to traverse this section of LCER at night". In response to his Honour distributing his draft finding, senior counsel for the appellant submitted "…the view travelling west is [also] well-illuminated". The submission made to this Court that the police statements of Ms Maxwell and Mr Sandilands should be preferred to the primary judge's own observations was not made to the primary judge. His Honour was entitled to treat his observations about visibility at night at the accident scene as common ground.
Secondly, the police statements of Ms Maxwell and Mr Sandilands are not in any event inconsistent with the primary judge's finding recorded above. The evidence they each provided in their statements was tentative and, on close analysis, addressed a different topic to the question of visibility at the crash site the subject of the primary judge's finding.
Ms Maxwell's statement is not inconsistent with the primary judge's finding. She says when she came upon the scene "[i]t was quite dark still, we could see the bikes on their side". No doubt extraordinarily bravely, Ms Maxwell and her sister then stood in the middle of the road, on either side, to protect the bodies of the fallen riders from any on-coming traffic. Ms Maxwell's actions in standing on the road are quite consistent with the primary judge's findings that "[a] motor vehicle, including a motorcycle, could be seen by any other motorist or rider even if neither vehicle was burning any light or reflecting any light". Her subsequent remark that "[t]he street is not very well lit" takes the matter no further and is not of itself inconsistent with the primary judge's finding.
Mr Sandilands' statement took the form of questions and answers. There were only two relevant questions asked of him. The first question makes it clear he was being asked to address the time of the accident compared to dawn - "[h]ow dark do you think it was when you came outside your house?" The answer, "[i]t was dark, you could make out the outline of the body on the road, but not the features. It is not well lit where he was" rather begs the relevant question. It is clear that Mr Sandilands was not purporting to address the question of whether, on that night, a motor vehicle, including a motorcycle, could be seen by any other motorist or rider even if neither vehicle was burning any light or reflecting any light. The second question "[d]id you see where this rider's bike was?" is equally unhelpful, as is the answer "[y]es, only better it was lighter…" perhaps referring to the colour of the bike or to the street lighting where the bike came to rest. That evidence is not directed to addressing the same issue as the primary judge's finding and in any event is not inconsistent with the primary judge's finding.
Thirdly, the primary judge's approach to fact findings about this issue was transparent and fair to the appellant. The primary judge distributed the document which became Exhibit RR to the parties and invited submissions about its contents. Adopting this efficient and procedurally fair mechanism enhanced the transparency of the primary judge's fact finding on this issue. Further, when an unsuccessful objection was taken by the respondent to the admissibility of Ms Maxwell's opinion about visibility the primary judge admitted the statement ruling "I've seen it myself". The appellant could have been in no doubt that unless matters were brought to his attention by the parties which would cause him to modify or reject the observations recorded in Exhibit RR, his Honour would act on those observations on this issue.
Fourthly, the appellant's complaints about differences in the conditions experienced during the view compared to the night of the accident were not raised with the primary judge and cannot be raised for the first time in this Court. Neither of the matters raised in this Court, namely the suggested differences by reason of changed road markings or different weather and light conditions, was raised by the appellant with the primary judge as a basis for departing from the observations in Exhibit RR. It is not open to the appellant to depart from the stand taken at the trial on the subject: Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33.
The appellant's challenge to the primary judge's finding about visibility should be rejected.

[11]

Speed - ground 13A

The speed limit on Lake Conjola Entrance Road was 50 km/h. The police collision reconstruction expert, Mr Parker, calculated that the respondent was travelling at a speed between 42 and 52 km/h and that Mr Lamont was travelling at a speed between 47 and 60 km/h.
The appellant submitted that the primary judge's findings that "Lamont travelled [at a] speed a little in excess of 10 km/h over the speed limit" and that this "increased speed materially contributed to the violence of the collision, increasing the potential to cause damage" was not supported by the expert evidence.
It was submitted by the appellant there was no logical basis for the primary judge's conclusion that Mr Lamont was travelling at a speed higher than the range the expert estimated. Further, there was no evidence from Mr Parker that such a speed differential contributed to the violence of the collision.
Mr Parker's calculations, the respondent submitted, were based on the "researched book value for deceleration for a motorcycle sliding on an asphalt surface". The "lowest possible speed" from the researched sliding friction -0.30 - was used by Mr Parker in calculating the 42 km/h and 47 km/h speeds.
The respondent submitted the primary judge was entitled to accept Mr Parker's analysis using "the average variable" - 0.48 - rather than the lowest figure for the variable 0.30.
Thus, the respondent submitted, the primary judge was entitled to choose the highest figure for speed. That was based on using the "average variable" as the relevant input. It was submitted that there was no sound reason for the primary judge to choose the bottom of the range rather than the average which, it was submitted, was the most likely.
As to the relationship between speed and the violence of the collision, the respondent submitted that Mr Parker was cross-examined by senior counsel for the appellant and gave evidence that "the more the speed…the higher the severity [of the collision]".
Accordingly, the respondent submitted that the primary judge's findings went no further than acceptance of the answers elicited from Mr Parker by the appellant and it was uncontroversial that travelling approximately 10 km/h over the speed limit materially contributed to the violence of the collision increasing the potential to cause damage.

[12]

Conclusion about speed - ground 13A

I do not think it was open to the primary judge to find, based on the limited evidence Mr Parker gave, that Mr Lamont was travelling a little in excess of 10 km/h over the speed limit.
Mr Parker's range of speeds was based upon "researched book value" for deceleration for a motorcycle sliding on an asphalt surface. The lowest of those speeds was based on the lowest possible rate of deceleration for a motorcycle sliding on an asphalt surface. The highest speed was based on "the average variable". Whilst this issue was not explored in any detail in the evidence, Mr Parker himself said that his range was not "conservative". I am not able to discern, from Mr Parker's evidence, any reason for adopting the very top of his range of speeds as the appropriate finding about Mr Lamont's speed, let alone a figure "slightly in excess" of that Mr Parker estimated.
To conclude in those circumstances that Mr Lamont "was travelling a little in excess of 10 km/h over the speed limit" was an error. The primary judge on the evidence should have concluded that Mr Lamont was travelling at a speed between 47 and 60 km/h. His Honour's conclusion that the respondent was travelling at a speed of between 52 and 53 km/h was not squarely challenged on appeal. By reason of the different ranges of speed given by Mr Parker, it was open for the primary judge to conclude that "the higher the speed, in general, the greater the risk". Given the different ranges given by Mr Parker, and his Honour's findings about the respondent's speed, it was also open to his Honour to conclude that Mr Lamont was likely to have been travelling faster than the respondent and that "[Mr Lamont's] increased speed materially contributed to the violence of the collision, increasing the potential to cause damage".
Although I have concluded that the primary judge erred in the above respects in making his findings about speed, I do not, however, think it matters very much. Whilst I would uphold ground 13A in part, the primary judge's conclusion about speed was a very small part of his overall assessment of contributory negligence. This is a matter to which I will return in addressing contributory negligence.

[14]

Appellant's submissions

The appellant relied on the cases of Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 and Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 for the uncontroversial proposition that the issue of breach of duty cannot be properly considered unless the relevant risk of harm is first identified or characterised with adequate precision.
The appellant submitted that the relevant risk of harm was: "….the likelihood of physical injury or damage being caused by the combination of intoxication and riding motor bikes together in the dark."
The appellant submitted that this risk was an "inherent" risk within s 5I of the Civil Liability Act. Such a risk was brought about by the fact that the appellant and respondent were drinking together in the afternoon and evening of the previous day until 5:00 am the following morning without sleep or rest.
The appellant submitted once the risk of harm is correctly characterised to include elements of drunkenness, speed and fatigue while riding in the dark, the risk of something occurring could not be avoided by the exercise of reasonable care and skill, and accordingly the injuries which the respondent suffered occurred as a result of the materialisation of an inherent risk for which the appellant could not be liable: s 5I.
The appellant submitted that the primary judge overlooked two relevant facts which further demonstrated that both parties were "incapable" of exercising reasonable care and skill: 1. that the respondent himself was similarly suffering from reduced riding skills due to intoxication and fatigue; and 2. both the appellant and the respondent continued to ride their motorcycles well aware of their respective limitations and the conditions.
The appellant argued that the primary judge erred in his construction of s 5I by finding that the relevant conduct which could have avoided the materialisation of the inherent risk was not to engage in the conduct at all. It pointed out that s 5I says nothing about how an inherent risk could be avoided.
Finally, the appellant submitted that there was no evidence to establish how long it would take the appellant and respondent to sober up or for the alcohol to be excreted from their blood systems, or for them to recover from their fatigue.

[16]

Consideration of section 5I and inherent risk - grounds 1 - 4

Before embarking on a consideration of these grounds of appeal a few matters should be emphasised about what this case did not involve.
First, despite references in the submissions to the respondent's and Mr Lamont's conduct as "a joint illegal enterprise", the appellant before the primary judge eschewed reliance on a joint criminal enterprise and when challenged by the primary judge about the absence of any such pleading accepted that the phrase was in effect a flourish for "some agreement, arrangement or understanding between the two men to do certain things". That is, the appellant did not rely on s 54 of the Civil Liability Act. The notice of appeal did not raise this issue or indeed any issue relating to a joint criminal enterprise of a kind considered by the High Court in Gala v Preston (1991) 172 CLR 243; [1991] HCA 18.
Secondly, despite passing references in the submissions to principles derived from the defence of volenti non fit injuria, this was a case conducted under the Motor Accidents Compensation Act which, save in presently irrelevant circumstances, in s 140 abolished that defence and replaced it with a presumption of contributory negligence.
Thirdly, the appellant did not rely on any allegation of an "obvious" risk within the meaning of s 5F of the Civil Liability Act. Nor was any complaint made about a failure by the primary judge properly to address any issue raised by Pt 6 of the Civil Liability Act.
The appellant's sole complaint was that the primary judge failed to conclude that the appellant's injuries arose as a materialisation of an inherent risk within the meaning of s 5I of the Civil Liability Act.
The appellant's submissions misunderstand the proper operation of s 5I which was explained by this Court in Paul v Cook (2013) 85 NSWLR 167; [2013] NSWCA 311. Section 5I provides: ""5I NO LIABILITY FOR MATERIALISATION OF INHERENT RISK (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An 'inherent risk' is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."
In Barbara McDonald, "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia" (2005) 27 Sydney Law Review 443, McDonald makes the following observations at 461: "'Inherent risk' is defined as 'a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill'. Logically of course, if a risk cannot be avoided by reasonable care, there could be no negligence arising from its materialisation. This was pointed out by Kitto J in Rootes v Shelton, a case involving water skiing. Many activities involve inherent risks. If on the other hand the risk could have been avoided by reasonable care, then there may well be negligence on the part of the defendant and the risk of such negligence is neither inherent nor likely to have been readily assumed (such as to give rise to the common law defence of voluntary assumption of risk) by a participant in an activity." (footnotes omitted)
I agree with this passage. As Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39 itself explains, water skiing is an inherently risky activity and involves a number of inherent risks (such as hitting submerged objects). If, however, the risk of something occurring (in that case of colliding with another boat) could have been avoided by the exercise of reasonable care and skill it was not "inherent".
In Paul v Cook, Leeming JA (with whom Basten and Ward JJA agreed) explained: "[64] … The definition in s 5I(2) is necessarily forward-looking, to something which may or may not occur in the future. Writing of s 5B, Campbell JA said that "As a matter of ordinary language a 'risk of harm' relates to harm that has not yet happened": Sibraa v Brown [2012] NSWCA 328 at [41]. The forward-looking, or prospective, nature of the inquiry is why there is a risk (viz a chance or a possibility or a danger) of it occurring, which risk cannot be avoided by the exercise of reasonable care and skill. In contrast, s 5I(1) is necessarily backwards-looking. For the premise of s 5I(1) is that there has been a materialisation of an inherent risk, which has resulted in harm. [65] It follows that merely labelling the focus of s 5I(1) upon the materialisation of the risk fails to do justice to the way in which the definition and the operative provision operate. The better approach is to recognise that the compound term "risk of something occurring" is the natural semantic unit in the definition, that the definition in s 5I(2) looks forward into the uncertain future, and that although the premise of the substantive provision in s 5I(1) is that harm has resulted from the materialisation of a risk, to identify whether that risk was an "inherent risk" requires an analysis of the position before it materialised. [66] It is as well to elaborate what that approach involves. A risk of something occurring in the future, if it cannot be avoided by the exercise of reasonable care and skill, is an "inherent risk". That is the sense in which the language was used in earlier cases, notably in Rogers v Whitaker at 483 where the joint judgment recorded that: 'The principal issue in this case relates to the scope and content of the appellant's duty of care: did the appellant's failure to advise and warn the respondent of the risks inherent in the operation constitute a breach of this duty?' However, whenever a claim is made in response to which a defendant asserts that s 5I is the answer, then it is being said that a risk has materialised as a result of which harm has been suffered. To that extent, the focus then falls on the occurrence, as opposed to the risk. But even so, in order to determine whether s 5I is engaged, which is to say, whether the harm was the result of the materialisation of a risk that is an inherent risk, one must return to the definition in s 5I(2) and examine the position in a forward-looking way."
In Ms Paul's case there was always a small but unavoidable risk of intra-operative rupture followed by stroke. The question posed by s 5I was whether the "risk of something occurring", i.e. the "risk of intra-operative rupture followed by stroke", could have been avoided by the exercise of reasonable care and skill. That had to be determined from Ms Paul's position before she underwent surgery. As there was always a small but unavoidable risk of intra-operative rupture followed by stroke, s 5I applied.
In Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 the respondent, on boarding a moving chairlift, was struck by the armrest at the Perisher ski fields. The Court (Barrett JA; Gleeson JA and Tobias AJA) held that the relevant risk was of the safety bar on the chair being down at the time, a risk which could have been avoided by reasonable care and skill: "[167] In order for there to be no liability for the materialisation of an inherent risk it must be proven, inter alia, that the risk 'cannot be avoided by the exercise of reasonable care and skill'. The relevant risk in this case is that a skier may sustain physical injury as a result of his or her reaction to the manner in which a lift operator responds to a down bar situation. As stated at [137] above, this risk could have been avoided had Mr Lofberg observed the state of chair as it left the bullwheel. The relevant risk is therefore not of the character described in s 5I. We agree with the primary judge."
Accordingly, it must be proven that the risk cannot be avoided by the exercise of reasonable care and skill. In the present case the harm suffered was the catastrophic injury caused to the respondent by Mr Lamont who was riding his motorcycle on the incorrect side of the road when it collided with the respondent. Manifestly, such an occurrence could be avoided by taking reasonable care at the least by riding on the correct side of the road. It could not have been, and was not the materialisation of an inherent risk.
In considering the respondent's position before he commenced riding his motorcycle that morning, there was obviously a risk that Mr Lamont would by reason of intoxication and fatigue, ride his motorcycle on the incorrect side of the road and collide with the respondent.
That however, is not the question. The question is whether, looking forward, the risk of harm faced by the respondent could have been avoided by the exercise of reasonable care and skill. Looking forward on that morning, did the respondent face the same inevitable risk even if Mr Lamont exercised reasonable care and skill?
The answer to that question must be "no". While I accept that the primary judge's reasoning that the exercise of reasonable care and skill required Mr Lamont not to ride his motorcycle involves an error, it does not follow that Mr Lamont was incapable of exercising care and skill so as to avoid the occurrence which gave rise to the harm suffered by the respondent.
The risk of the two bikes colliding could have been avoided by Mr Lamont exercising reasonable care and skill, i.e. by riding on the correct side of the road, not exceeding the speed limit and keeping a proper lookout. If Mr Lamont had exercised such reasonable care and skill, the risk was not "unavoidable". There was no finding, and the evidence did not permit a finding, that Mr Lamont was incapable of exercising reasonable care and skill in any of these respects. The circumstances which enlivened s 5I were not present.
The way in which the appellant sought to characterise the relevant risk should also be rejected. It will be recalled that the appellant urged this Court to find that the relevant risk of harm was: "The risk of physical injury or damage being caused by the combination of intoxication and riding motorcycles in the dark."
Defining the relevant risk in this way, and including precise elements of the harm that was actually suffered, is to confuse cause and risk. As Leeming JA explains in Paul v Cook, that involves error. By identifying the likely "cause" of the accident as, inter alia, intoxication, the appellant seeks in effect to answer the s 5I question in its favour by this definition of the relevant risk. A future looking risk is only an "inherent risk" if it cannot be avoided by the exercise of reasonable care and skill: Paul v Cook at [66].
The appellant's construction of s 5I would give rise to inconsistency with Div 5 of the Civil Liability Act and convert all potentially dangerous activities involving an "obvious risk" into activities involving an "inherent" risk. There is no warrant in the statutory language or in the policy of the Civil Liability Act or the Motor Accidents Compensation Act for that approach.
Grounds 1-4 should be dismissed.

[23]

Conclusion on contributory negligence - grounds 7, 9, 11, 13 and 13B

In conducting a re-hearing of this matter under s 75A of the Supreme Court Act it is appropriate, as error has been established in the primary judge's fact finding, for the issue of contributory negligence to be addressed afresh by this Court, rather than remitted to the District Court.
In relation to intoxication, once the primary judge's overly precise findings are set aside there are two alternatives proposed: 1. the two men were equally intoxicated (the appellant's position); and 2. Mr Lamont was intoxicated to the extent measured by Dr Perl and the respondent was intoxicated to an indeterminate extent (the respondent's position).
I have concluded that Mr Lamont was intoxicated to the extent measured by Dr Perl and the respondent was intoxicated to an indeterminate extent. The difference between the two findings of fact is only small.
I have also concluded that the primary judge erred in his assessment of speed. The primary judge on the evidence should have concluded that Mr Lamont was travelling at a speed between 47 and 60 km/h. There was no challenge to the primary judge's finding that the respondent was travelling at a speed of between 52 and 53 km/h.
I have rejected the other findings of fact challenged by the appellant. Those facts as found should be applied to the fresh assessment of the respondent's contributory negligence.
In re-assessing the extent of contributory negligence the appropriate assessment, but for one matter, would be 50 per cent. The appellant and the respondent were each intoxicated, driving at night on vehicles without headlights. The likely difference in speed at the time of the collision may have been material but would not otherwise have swayed my assessment of 50 per cent contributory negligence.
The factor that persuades me that a lesser figure is appropriate to reflect the respondent's contributory negligence is that it was an agreed fact between the parties that the point of collision between the motorcycles was 1.5 m on the respondent's side of the road from the midpoint on the road. Mr Lamont struck the respondent on his left, that is, between the respondent and the nearside curb. Accordingly, Mr Lamont was likely to have been even further than 1.5 m from the centre line on the incorrect side of the road. Contrary to the appellant's submission, in the overall assessment of contributory negligence the fact that the accident occurred on the westbound lane of Lake Conjola Entrance Road is an important matter in determining the appropriate figure for contributory negligence.
The appellant's reliance upon Nominal Defendant v Green takes the matter no further. In the passage relied upon by the appellant, Basten JA concluded: "[48]… The role of an intermediate appellate court in respect of such matters, like the role of Court of Criminal Appeal in relation to sentencing, is to ensure a degree of consistency in approach on the part of trial judges. Thus, where a finding is outside an appropriate range, this Court, on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), should usually intervene."
There is no occasion in this case to intervene to correct a finding outside the appropriate range. Rather, this is a case where error having been established in the primary judge's fact finding it is incumbent on this Court to re-exercise the discretion.
In all the circumstances, re-exercising the discretion, I would uphold the respondent's notice of contention and come to the same figure as the primary judge for contributory negligence of 33 per cent, having regard to the relative culpability of the two men and in particular Mr Lamont's breaches of his fundamental duty to keep to the left, and keep a proper lookout.

[27]

Respondent's submissions

As to the first issue, the respondent submitted that the failure of the appellant to cross-examine or otherwise lead evidence on this topic was fatal.
As to the second issue, the respondent submitted that the evidence established that in the period 2009-2012 the respondent was completing his apprenticeship and in a short period in 2013 the respondent earned $6,286 in a seven or eight week period. The uncontested evidence of Mr Streeter, a prominent builder in the area where the respondent lived and worked, was that for people in the building industry "once a job is finished, there's always another job somewhere to go to [sic]". In oral submissions, counsel for the respondent submitted that there was no cross-examination of Mr Streeter to suggest that there were any lengthy periods of unemployment, or any lengthy periods without earnings. Finally, it was submitted that Mr Streeter's evidence established that as a contractor or subcontractor, the primary judge was entitled to be comfortably satisfied that the respondent would earn at least the average weekly amount for a construction worker.
The respondent submitted that at the heart of the appellant's challenge to damages was a misrepresentation of the evidence and findings of the primary judge. The respondent submitted that the primary judge made factual findings which were not challenged including: 1. the respondent had not used illicit drugs since August 2012; 2. the timing of the pre-accident lapses into alcohol use indicates a growing determination not to relapse; 3. but for the events of 15 and 16 October 2013 the respondent would have remained abstinent of alcohol, completed his anger management course and returned to work as a carpenter subcontracting to a builder such as Mr Streeter in 2014; and 4. with growing maturity the respondent who was then 25 years old would have continued to abstain from alcohol and would have led a socially acceptable life after October 2013.
The respondent submitted that the appellant did not adduce any evidence that any drug or alcohol abuse, mental health or anger problems that the respondent experienced pre-accident were "chronic", were incapable of being treated, would persist over his working life or would interfere with his future working capacity.

[28]

Conclusion about residual earning capacity - grounds 14 and 15

As to the first issue, it is well established that a defendant bears the evidential onus of demonstrating that a plaintiff failed to exercise a past or future residual earning capacity that he or she is practically capable of exercising.
In Rabay & Anor v Bristow [2005] NSWCA 199 McColl JA (with whom Handley and Bryson JJA agreed) said: "[73] Compensation for loss [sic, lost] earning capacity is awarded because … the diminution in an injured plaintiff's earning capacity 'is or may be productive of financial loss': Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20]."
In this case, the appellant did not cross-examine the respondent about what the appellant says now is his residual earning capacity.
In Mead v Kearney [2012] NSWCA 215, a case with some presently relevant similarities, the respondent was injured in a motor vehicle accident when a car, owned by the first appellant and driven by the second appellant on the incorrect side of the road, collided with his vehicle. The appellants accepted liability. Macfarlan JA (with whom McColl JA and Sackville AJA agreed), observed that the appellants did not cross-examine the respondent about his efforts to obtain available employment again as soon as possible at [33]: "[33] …. The appellants did not contradict the respondent's evidence concerning his efforts to obtain employment in the period prior to the trial and did not put to him in cross-examination that the efforts were not genuine or that there were other practical steps he could have taken to obtain employment."
His Honour concluded at [37]: "[37] …As I have pointed out, the evidence demonstrated that the respondent had tried unsuccessfully to obtain employment for nearly four years prior to the trial. The evidence at the trial offered no reason to suggest that the position would be any different in the future. The appellants did not identify any practical job opportunities that were available to the respondent in the past of which he failed to avail himself, or any such opportunities that might arise in the future. In these circumstances, to attribute a percentage chance to the prospect of the respondent obtaining a job in the future would involve mere speculation. There was no tangible basis in the evidence for such an assessment."
Here, the absence of evidence or any cross-examination directed to this issue is fatal to the appellant's case. To attribute a percentage chance to the prospect of the respondent obtaining a job in the future would involve mere speculation. There was no tangible basis in the evidence to conclude that the respondent had any residual earning capacity.
As to the second issue, the evidence of Mr Streeter provides a fatal hurdle to the acceptance of the appellant's submissions. Mr Streeter, whose qualifications to give the evidence he gave were not challenged, was closely familiar with the respondent's abilities as a qualified carpenter and had engaged him before the accident. Mr Streeter's evidence, was that he was paying his current carpenter, who he employed on a subcontract basis, $380 per day. The primary judge was entitled to conclude, based on Mr Streeter's evidence, that the respondent would have easily been able to secure contracting or subcontracting work as a carpenter for which he was paid $380 per day (as at the time of the trial). The primary judge was correct to conclude that, but for the accident, the respondent would have earned the sum of $1270 net per week based on average weekly earnings for construction workers, noting that this was a figure advanced by the respondent after deducting 15 per cent for vicissitudes.
As to the appellant's complaints about the way the primary judge addressed what were submitted to be personal problems the respondent faced in securing long term engagements as a contractor or subcontractor providing carpentry services, my conclusions are as follows: 1. the primary judge's finding that alcohol addiction and drug use would have not interfered with the respondent's future earnings was correct. The appellant's submissions to the contrary ignore the fact that the respondent has a history of four years of stable employment and completed an apprenticeship between 2008 and 2011; 2. the primary judge did not err in concluding that the highly traumatic disclosure led to the respondent's psychological difficulties and increased drug and alcohol use in August 2012; 3. the primary judge did not err in concluding that after the psychological difficulties encountered in August 2012 the respondent did not use drugs again. The primary judge found that the respondent never relapsed into drug use and was entitled so to find. That factual finding is unchallenged; and 4. the evidence supports the primary judge's findings that the respondent's alcohol use "indicates a growing determination not to relapse": primary judgment (at [212]).
The factual findings of the primary judge on this topic were not only open and available on the evidence but were compelling conclusions based on the evidence. This is because: 1. despite his then recreational use of alcohol and marijuana, the respondent completed his apprenticeship; 2. the only time drugs and alcohol caused the respondent's absence from work was when he received what he described, and the primary judge accepted, was "devastating news about his long-term partner and his children"; 3. the respondent was subjected to regular drug testing between August 2012 and April 2013 and did not return a positive drug test; and 4. the primary judge accepted that the respondent had a powerful incentive to remain abstinent of drugs and alcohol being his desire to "recover" his children.
In my view, the primary judge was correct to make the challenged factual findings. The findings supported the conclusion that a well-trained and well-regarded tradesmen, such as the respondent was, would have been able to earn average weekly earnings from construction work over his working life.
The respondent was planning to work as a contractor or subcontractor providing carpentry services. The appellant's separate point, that as a contractor or subcontractor the respondent faced business risks additional to those of a PAYG employee, was not explored by the appellant in evidence or cross-examination. The primary judge was entitled to give the submission little weight given Mr Streeter's evidence that he had engaged the respondent as a subcontractor in the past, that his current carpenter was engaged as a subcontractor and the absence of any contrary evidence.
The evidence from Mr Streeter of average weekly earnings was for construction workers engaged as subcontractors at current rates and that evidence was used to calculate the respondent's most likely circumstances but for the accident. The suggestion that there was any impediment to the respondent earning average weekly earnings for construction workers as a contractor or subcontractor providing carpentry services was not made out on the evidence.
Grounds 14 and 15 should be dismissed.

[29]

Section 126 - ground 16

Under this ground, the appellant in effect repeated the submissions already made in relation to grounds 14 and 15, although in the context of s 126 of the Motor Accidents Compensation Act.
In essence, the appellant submitted that the primary judge failed to make findings about the extent to which the significant personal challenges faced by the respondent would have affected his most likely future circumstances but for the injury in accordance with s 126 of the Motor Accidents Compensation Act (mirroring the matters addressed in paragraphs [159]-[170] above).
Section 126 of the Motor Accidents Compensation Act provides: "(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
The appellant also submitted the primary judge erred in failing to have regard to the contingencies associated with the respondent's intention of running his own carpentry business when considering the respondent's most likely future circumstances but for the injury (mirroring the matters addressed in paragraphs [159]-[170] above).
Although not the subject of a specific ground of appeal, it was submitted that the primary judge fell into error by not imposing a higher reduction for vicissitudes having regard to the principles in Commonwealth of Australia v Elliott [2004] NSWCA 360 at [79]-[81].
The appellant contended in its written submissions there should be a 25 per cent to 30 per cent discount in order to properly account for the multiple contingencies that would have necessarily impacted on the respondent's earning capacity in any event.

[33]

Endnotes

Cooper v Nominal Defendant [2017] NSWDC 3.
Motor Accidents Compensation Act 1999 (NSW) (1999 Act), s 3.
Primary judgment (at [52]).
Ibid (at [49], [50]).
Ibid (at [50]).
Ibid (at [52]).
Ibid (at [55]).
Ibid.
Ibid.
Ibid (at [56]).
Ibid (at [66]).
Ibid (at [67]).
Ibid.
Ibid (at [64]).
Ibid (at [46]).
Ibid (at [52]).
Ibid (at [135]). For my part, I would not conclude that the fact the two men chased a kangaroo around a yard in the middle of the night was evidence of intoxication as opposed to exuberance of, as Ms Bates classified it, idiocy, using that expression in a benign sense.
There was a suggestion that some support for the primary judge's conclusion that the respondent was not as badly affected by alcohol as Mr Lamont could be drawn from Dr Perl's opinion that a young person would generally be more likely to experience a greater degree of impairment at any particular BAC: primary judgment (at [52]) (Mr Lamont was 20 at the time of the accident: ibid (at [43]) and the respondent was 25, having been born in 1988: ibid (at [3])). However, as counsel for the appellant submitted, no attempt was made to relate Dr Perl's opinion to Mr Lamont and the respondent's respective abilities to tolerate alcohol.
Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 (Boral Bricks) (at [79], [85]) per Basten JA (Emmett JA agreeing).
Davis v Swift [2014] NSWCA 458; (2014) 69 MVR 375 (Davis) (at [23], [29]) per Meagher JA (Leeming JA agreeing); see also Boral Bricks (at [48]) per McColl JA; Verryt v Schoupp [2015] NSWCA 128; (2015) 70 MVR 484 (at [20]) per Meagher JA (Gleeson JA and Sackville AJA agreeing).
Primary judgment (at [215]).
See Boral Bricks (at [48]) per McColl JA; (at [83] - [84]) per Basten JA; Davis (at [23]).
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 (Podrebersek) (at 494) per curiam (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ); [1985] HCA 34; see also Pennington v Norris (1956) 96 CLR 10 (at 16) per curiam (Dixon CJ, Webb, Fullagar and Kitto JJ); [1956] HCA 26.
Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241 (at [15]) per Basten JA.
Podrebersek (at 493 - 494); Roads & Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 (at [168]) per Kirby J.
Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Coy Pty Ltd (2001) 53 NSWLR 626; [2001] NSWCA 461 (at [60]) per Stein JA (Davies AJA agreeing).
Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354 (at [48]) per Basten JA (McColl JA and Sackville AJA agreeing).