Voluntary assumption of risk
223At paragraph 38 of the defence, a defence of volenti non fit injuria is pleaded in terms of a defence at common law only:
"The defendant relies upon the defence of volenti non fit injuria for the reasons outlined at paragraphs 13 to 33 above, as a total defence to the plaintiff's claim."
224The interaction between the common law defence of voluntary assumption of risk and ss 5F and 5G was explained by McClellan CJ at CL in Carey v Lake Macquarie City Council were cited with approval in Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 at [83] as follows:
"[83] A finding that a risk of harm is an "obvious risk" within the meaning of s 5F(1) so that pursuant to s 5G(1) the person who suffers harm is presumed to be aware of that risk, does not, as the Council would have it, automatically lead to a finding of no breach of duty. Sections 5F and 5G are contained in Div 4 of Pt 1A of the CL Act entitled "Assumption of risk". The purpose of that Division is, at least in part, to make it easier for a defendant to establish the common law defence of voluntary assumption of risk or volenti: C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [101] per Santow JA; Carey at [34]. Except with respect to an "obvious risk" which obviates any common law duty to warn (see s 5H), the provisions of ss 5F and 5G and, in particular, the statutory definition of an "obvious risk", have no relevance to the question of breach of duty."
225The same issues relevant to "obvious risk" relating to a dangerous recreational activity for the purpose of s 5L also apply to the defences at common law of voluntary assumption of risk, as glossed by ss 5F and 5G.
226Further assistance in the relationship between the common law defence, which was always a difficult defence to prove, and the provisions of ss 5F and 5G, has been provided by McClellan CJ at CL in Carey v Lake Macquarie City Council at [86]:
"[86] Until the recent statutory amendments provided by the Civil Liability Act 2002 (NSW) a defendant faced a difficult task to prove volenti. Although a plaintiff may be aware of a risk that they might be injured, unless the defendant could prove that they appreciated the risk that they might be injured in a particular manner or to a particular extent the defence would fail. As Lord Halsbury LC said in Smith v Charles Baker & Sons [1891] AC 325 at 336, "a person who relies on the maxim must shew a consent to the particular thing done." Indeed, the defence has been so stringently applied that Campbell J noted in Tingle v J B Hinz & Sons [1970] Qd R 108 at 113 that:
Glanville Williams in Joint Torts and Contributory Negligence at p 307 says that in almost every negligence action of modern times where the defence has been raised it has failed. Fleming in his work on Torts (3rd ed) at p 259, predicts that the defence will disappear eventually into the limbo of forgotten things."
227The plaintiff challenged first the entitlement to plead the defence at all, and then the entitlement to rely upon ss 5F and 5G. The defendant submits that if the defence were to fail in the form it is pleaded, namely at common law, then it is with the assistance of the Civil Liability Act 2002 (NSW) that the defence of volenti must be construed, referring to McClellan CJ at CL's comments at [87] and [88] of Carey v Lake Macquarie City Council:
"[87] Division 4 of Pt 1A of the Civil Liability Act 2002 (NSW) - particularly ss 5F and 5G - was designed to address this issue. The second reading speech to the Civil Liability Amendment (Personal Responsibility) Bill refers to the Ipp Report, which at p 129 indicates that the intention of Div 4 was "to encourage greater use by the courts of the defence of assumption of risk." It was noted in the Report that:
The more narrowly a risk is defined, the less likely it is that a person will have been aware of it. For instance, a person may be aware of the risk of suffering bodily injury as a result of engaging in a particular activity. But the person may not be aware of the risk of suffering bodily injury in a particular way.
[88] Accordingly, the Report recommended the enactment of the following provisions:
· A provision to the effect that for the purposes of the defence of assumption of risk, it would be presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person could prove, on the balance of probabilities, that he or she was not aware of the risk (para 8.30);
· A provision to the effect that for the purposes of the defence of assumption of risk, the test of whether a person was aware of a risk is whether he or she was aware of a risk of the type or kind of risk and not of its precise nature, extent or manner of occurrence (para 8.31)."
228The defendant submits (written submissions, paragraph 341) that if the defence fails at common law then ss 5F and 5G would overcome the difficulties of the common law defence.
229What are the consequences of the defendant's failure to refer to ss 5F to 5I, and in particular to fail to plead s 5G?
230In fact, ss 5H and 5I are pleaded (paragraphs 39 to 41 of the defence) as follows:
"39. The Defendant relies upon Part 1A, Division 4, Section 5H of the Civil Liability Act (2002):-
a) The Defendant relies upon the facts and particulars pleaded in paragraphs 13 to 33 above.
b) The Plaintiff riding in the manner so described was an "obvious risk" to the Plaintiff in that, in the circumstances, it would have been obvious to a reasonable person in the position of the Plaintiff that there was risk of "Wrangler" acting in the manner so described.
c) The Plaintiff riding in the manner so described was a risk that was patent or a matter of common knowledge.
d) In the circumstances as outlined in paragraphs 13 to 31 above the Plaintiff was aware of the risk of "Wrangler" acting in the manner so described, or in a manner which would give rise to a risk of the type or kind of risk which occurred.
e) Under the above circumstances, pursuant to Section 5H of the Civil Liability Act, the Defendant did not owe a duty of care to the Plaintiff to warn of the risk to the plaintiff.
40. The Defendant relies upon Part 1A, Division 4, Section 5I of the Civil Liability Act (2002):-
a) The Defendant relies upon the facts and particulars pleaded in paragraphs 13 to 33 above.
b) In the circumstances as outlined above the risk of "Wrangler" acting in the manner so described, or in a manner which would give rise to a risk of the type or kind of risk which occurred, was an "inherent risk" in that it was something occurring that could not have been avoided by the exercise of reasonable care and skill.
c) Under the above circumstances, pursuant to Section 5I of the Civil Liability Act, the Defendant is not liable in negligence for the harm suffered by the Plaintiff as a result of the materialisation of an inherent risk.
41. The Defendant relies upon Part 1A, Division 4, Section 5I [sic] of the Civil Liability Act (2002):-
a) The Defendant relies upon the facts and particulars pleaded in paragraphs 13 to 33 above.
b) In the circumstances as outlined above the harm occasioned by the Plaintiff resulted from a recreational activity engaged in by the plaintiff.
c) In the circumstances as outlined above, the activity engaged in by the Plaintiff of horse riding was a recreational activity in that it was a sport, and / or in the alternative a pursuit or activity engaged in for enjoyment, relaxation or leisure, and / or in the alternative an activity engaged in at a place where people ordinarily engage in sport, and / or in the alternative a pursuit or activity for enjoyment, relaxation or leisure.
d) In the circumstances as outlined above, the activity engaged in by the Plaintiff of horse riding was a "dangerous recreational activity" in that it was a recreational activity that involved a significant risk of physical harm.
e) The Plaintiff riding in the manner so described was an "obvious risk" to the Plaintiff in that, in the circumstances, it would have been obvious to a reasonable person in the position of the Plaintiff that there was risk of "Wrangler" acting in the manner so described.
f) The Plaintiff riding in the manner so described was a risk that was patent or a matter of common knowledge.
g) In the circumstances as outlined in paragraphs 13 to 31 above the Plaintiff was aware of the risk of "Wrangler" acting in the manner so described, or in a manner which would give rise to a risk of the type or kind of risk which occurred.
h) Under the above circumstances, pursuant to Section 5L of the Civil Liability Act, the Defendant is not liable in negligence for the harm suffered by the Plaintiff as a result of the materialisation of the obvious risk of a dangerous recreational activity engaged in by the Plaintiff."
231For the plaintiff's argument to succeed, one or both of the following arguments must succeed:
(a)No plea of volenti is possible because the common law defence has been "superseded" by ss 5F to 5I, which "cover the field". This was put to me in the course of oral submissions, but in further written submissions of the plaintiff (4 April 2012) the plaintiff appears to have retreated from this position.
However, any submission that the Act "covers the field", particularly in relation to the defence of volenti, is misconceived. As Judd J in Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 explains at [129], the tortious defence of volenti has been modified by the Civil Liability Act, not replaced.
The interaction between the Civil Liability Act and the common law is helpfully explained by Joachim Dietrich, "Papers from the Tort Law Academic Workshop: Teaching torts in the age of statutes and globalisation" (2010) 18 TLJ 141 as follows:
"Some parts of the Civil Liability Acts codify and change aspects of the common law of negligence. That is the case with the sections that state the general principles applicable to determining breach of duty (eg, Civil Liability Act 2002 (NSW) s 5B). In effect, these sections 'tinker' with the common law test for breach of duty. They restate the threshold test of breach, as well as the calculus of negligence factors to be considered in determining whether, ultimately, there is a breach, in slightly different terms to those of the common law principle contained in Wyong Shire Council v Shirt...
Since the Civil Liability Acts displace the common law in some of its field of operation, but do not cover the field, one particular challenge may be to determine where precisely only the common law principles apply, where only the statutory provisions apply, and where both still potentially apply, as well as where other, specific legislation applies.
Some parts of the Civil Liability Acts may merely provide a gloss or modification of common law principles that have ongoing application and relevance. Hence, s 5G of the Civil Liability Act 2002 (NSW) makes it easier to establish one element of the defence of voluntary assumption of risk, which continues to operate as a common law-based defence".
(b)The obligation of the defendant to plead s 5G has not been complied with and he should not be permitted to rely upon a statutory defence which has not been pleaded. In other words, the defendant can rely upon a volenti defence, but only at common law, and not upon the statutory provisions which modify it, because s 5G is not referred to in the defence. This submission has been further developed by the plaintiff in the written submissions provided in accordance with orders made on 3 April 2012. Mr Jones draws my attention to the well known statement in Dare v Pulham (1982) 148 CLR 658 at [6]. That decision is, however, generally relied upon as supporting the entitlement to late amendment, rather than preventing it.
The obligations of parties to plead their case in accordance with the provisions of the Civil Liability Act 2002 (NSW) and the Civil Procedure Act 2005 (NSW) was considered by Santow JA in CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [101]-[102] said:
"[101] The statutory consequences in ss 5G and 5H, where an obvious risk is found, operate in aid of the general law in two respects:
(a) in assisting the common law defence of voluntary assumption of risk, by introducing a rebuttable presumption of awareness of the relevant risk ("volenti"), and
(b) in obviating any common law duty of care to warn of an obvious risk to the plaintiff (with limited exceptions not relevant here).
[102] Thus there can be no need to warn of a risk one is presumed to know (s 5G) nor any proactive duty to warn of an obvious risk (s 5H). But liability for negligence is not coterminous with situations calling for warning. A warning may be insufficient to discharge the duty of care or may even be irrelevant to its discharge, depending on the circumstances."
The plaintiff submits that the defendant cannot rely upon s 5G as he has not specifically pleaded this in his defence, and otherwise relies upon submissions already made in relation to the defence of volenti. In other words, what the plaintiff submits is that by reason of not having pleaded s 5G specifically in the pleading, the defendant is entitled to rely upon the defence of volenti as pleaded, but is restricted to the common law defence, and is not entitled to take advantage of the liberalising of the volenti test set out in s 5G.There is no doubt that the defendant has pleaded a defence of volenti, and the failure to specifically refer to s 5G is an oversight.In Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34, a s 43A Civil Liability Act 2002 (NSW) defence was not pleaded at all at the trial, and was raised only on appeal. Beazley JA said at [23] that any statutory provision providing a complete, even if defeasible, defence to a claim, if not pleaded, would take a party by surprise, and that any such defence is required to be pleaded: r 14.14(2)(a) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). This is because the defence, if successful, would render the plaintiff's claim not maintainable (r 14.14(2)(b)). The s 43A defence therefore failed to comply with the pleading rules. However, Beazley JA went on to note at [24]:
"[24] A failure to comply with the rules of court, including the pleading rules, is not necessarily fatal to a party's right to rely upon the unpleaded matter. The court has power to dispense with its rules: see the Civil Procedure Act 2005, s 14. It has also been long accepted that a party may litigate an issue notwithstanding a failure to comply with a pleading rule. However, the entitlement of a party to do so is dependent upon a favourable exercise of the court's discretion if objection is taken by the opposing party. The exercise of the discretion is predicated upon fairness to the parties."
In Bellingen Shire Council v Colavon Pty Ltd, the total failure to plead or particularise the defence led to prejudice. In the present case, no prejudice is identified; the defence is pleaded, but has not been pleaded with reference to the provisions of the Civil Liability Act 2002 (NSW). Similarly, in Vertzayias v King [2011] NSWCA 215, an application to reopen the judgment to plead a defence failed; the Court of Appeal dismissed an appeal from the trial judge's refusal to reopen the proceedings.Both these decisions relate to defences raised after the trial was over. In Sydney South West Area Health Service v MD (2009) 260 ALR 702, a defendant sought leave to amend its defence during the trial to include reference to s 5O Civil Liability Act 2002 (NSW), which provides the standard of care for professionals. The trial judge refused, holding that s 5O had to be specifically pleaded, by reason of r 14.14 UCPR. Hodgson JA (Allsop P and Sackville AJA concurring) held that s 5O of the defence provides a defence not available at common law with the onus of proof lying on the defendant such that r 14.14 UCPR required that the material facts contemplated by s 5O should be pleaded and, although not mandatory, specific reference to s 5O is desirable (at [19]-[25], [50]-[51] and [58]). The trial judge had erred in refusing the appellants leave to amend to specifically plead s 5O in circumstances where objection to the failure to plead was not raised until very near the end of the case which amounted to trial by ambush (at [26]-[31], [53]-[56] and [58]).Allsop P at [51] considered that s 5O Civil Liability Act did not need to be pleaded, in that it was not just a matter of evidence, but a transfer of the onus of proof. That is not the case here. Something more is involved, in that these are sections which assist the defendant to discharge its burden of proof. I am satisfied that in pleading a defence of volenti, it is appropriate that a party should identify the facts and matters relied upon for a s 5G defence but that an application for leave to amend to plead s 5G, in circumstances where it reflects the way that the case was fought at trial, as well as being the basis of the submissions in relation to the volenti defence, would have to be granted.
Accordingly, I propose to allow the defendant to put his case on volenti in relation to the provisions of s 5G. In the event that I have erred, I have considered the defence both at common law and pursuant to ss 5F and 5G.
232I shall first consider whether the defence would have succeeded at common law.
233In Dr Bodel's report he notes that the plaintiff expressed concern to him about going on these horse rides, as she knew that Aletist was in season; she told him that "this may be a potentially hazardous undertaking". The plaintiff was aware that horse riding could be hazardous. She had suffered injuries in the past from falls from a horse, as had the defendant.
234Counsel for the plaintiff in written submissions puts to me that, at common law, the defendant can only succeed if there is a finding that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk, agreed to incur it (Ranieri v Ranieri (1973) 7 SASR 418; Osborne v London and North-Western Railway Company (1888) 21 QBD 220; Insurance Commissioner v Joyce (1948) 77 CLR 39). The plaintiff submits that there is "simply no evidence" (written submissions, paragraph 206) capable of satisfying the court if I accept that the plaintiff had been assured by the defendant that despite the risk it would be "fine" (T 27) for them to ride into a paddock notwithstanding the fact that the defendant was riding a stallion and one of the mares was known by him to be in season.
235The test has been more recently considered by the New South Wales Court of Appeal. In Canterbury Municipal Council v Taylor [2002] NSWCA 24 Ipp AJA said at [145]-[147]:
"[145] As Burt CJ said in Jeffries v Fisher (at 253):
"Of course in many cases that appreciation and acceptance [of the risk] can readily be inferred from knowledge, but the point to be made is that knowledge alone is insufficient ..."
[146] It does not follow merely from the fact that the respondent appreciated or should have appreciated the dangers of simultaneous dual use that he believed that the touch football players would carelessly walk into the cyclists' path. He may well have believed that the footballers were quite capable of acting without negligence and would play their game in safety. These issues were not properly investigated at the trial. What evidence there was on this issue tends to support a finding that the respondent did not expect that the risk would materialise.
[147] A belief that the dangers (of which the respondent had full appreciation) would not materialise, would negative the proposition that he accepted those dangers: cf O'Shea v The Permanent Trustee Co of New South Wales Ltd (1971) Qld R1; Suncorp Insurance and Finance v Blakeney; State Government Insurance Co v Hitchcock (unreported, Full Court, Supreme Court of Western Australia, delivered 11 March 1997)."
236Counsel for the defendant points out that McClellan CJ at CL in Carey v Lake Macquarie City Council at [83]-[84] noted that this passage was open to misinterpretation:
"[83] This passage is open to misinterpretation. In a recent article ("Personal responsibility and the 'new' volenti" (2005) 13 Tort L Rev 76), Associate Professor Lunney refers to Canterbury Municipal Council and says (at 86):
In this case, Ipp AJA held that a belief by the plaintiff that the dangers would not materialise would negative the proposition that the dangers had been accepted. Taken literally, this would require the plaintiff to expect injury as a result of the conduct. It is difficult to imagine any plaintiff testifying that they expected to be injured as a result of his conduct. Rather, the question is whether the plaintiff accepted the risk of injury.
[84] Lunney's conclusion is correct but his analysis of Canterbury Municipal Council may not be. There is a very real difference between the proposition (which Ipp AJA advanced) that a belief that a risk will not materialise will negative consent to the risk, and the proposition (which Lunney attributes to his Honour) that consent can only be inferred where the plaintiff believed that a risk would materialise. All that must be proved is that the plaintiff voluntarily accepted a chance that a perceived and fully appreciated risk would materialise. A genuine belief that the risk would not materialise will negative the defence, but a positive belief that the risk would materialise is not required to make the defence out."
237In other words, even if a plaintiff perceived and full appreciated the risk, the defence cannot be made out unless the plaintiff had "a genuine belief that the risk would not materialise" (at [82]). McClellan CJ at CL referred to the failure of a defence of volenti in Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361 where a passenger who got into a car with a driver that the plaintiff knew to be a drunk had not voluntarily assumed a risk because the plaintiff had thought, notwithstanding the driver being drunk, that he still "seemed alright".
238If I have erred in my finding as to the conversations on the day in question, the plaintiff was however sufficiently aware of the risk, according to her evidence, for her to query whether it was safe to ride into a paddock which contained a mare in season. She had a discussion of the briefest nature on the day of the accident. This was not a discussion of reliance; it was a casual remark that was made as they were heading out the stable door. The defendant was already on his horse and the plaintiff was in the process of finishing her saddling up. Accordingly, I am satisfied that the plaintiff and defendant, if I accept the plaintiff's description of the conversation, had a discussion about risk, and mutually agreed that they should still go riding. This is insufficient to establish the defence at common law. However, if the plaintiff and defendant had no such conversation, and they merely agreed to go for a horse ride, in circumstances where the plaintiff did not tell the defendant Aletist was in season, the plaintiff must be taken to have accepted the risk and the common law defence would succeed. This brings me to a consideration of the statutory defence.
239In relation to the statutory extension of the volenti defence, I note the statements by McClellan CJ at CL in Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874 at [86]-[88] as follows:
"[86] Until the recent statutory amendments provided by the Civil Liability Act 2002 (NSW) a defendant faced a difficult task to prove volenti. Although a plaintiff may be aware of a risk that they might be injured, unless the defendant could prove that they appreciated the risk that they might be injured in a particular manner or to a particular extent the defence would fail. As Lord Halsbury LC said in Smith v Charles Baker & Sons [1891] AC 325 at 336, "a person who relies on the maxim must shew a consent to the particular thing done." Indeed, the defence has been so stringently applied that Campbell J noted in Tingle v J B Hinz & Sons [1970] Qd R 108 at 113 that:
Glanville Williams in Joint Torts and Contributory Negligence at p 307 says that in almost every negligence action of modern times where the defence has been raised it has failed. Fleming in his work on Torts (3rd ed) at p 259, predicts that the defence will disappear eventually into the limbo of forgotten things.
[87] Division 4 of Pt 1A of the Civil Liability Act 2002 (NSW) - particularly ss 5F and 5G - was designed to address this issue. The second reading speech to the Civil Liability Amendment (Personal Responsibility) Bill refers to the Ipp Report, which at p 129 indicates that the intention of Div 4 was "to encourage greater use by the courts of the defence of assumption of risk." It was noted in the Report that:
The more narrowly a risk is defined, the less likely it is that a person will have been aware of it. For instance, a person may be aware of the risk of suffering bodily injury as a result of engaging in a particular activity. But the person may not be aware of the risk of suffering bodily injury in a particular way.
[88] Accordingly, the Report recommended the enactment of the following provisions:
A provision to the effect that for the purposes of the defence of assumption of risk, it would be presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person could prove, on the balance of probabilities, that he or she was not aware of the risk (para 8.30);
A provision to the effect that for the purposes of the defence of assumption of risk, the test of whether a person was aware of a risk is whether he or she was aware of a risk of the type or kind of risk and not of its precise nature, extent or manner of occurrence (para 8.31)."
240Whether the plaintiff told the defendant Aletist was in season or not, she was an experienced horsewoman; she was sufficiently aware of the specific dangers to raise them with the defendant. She was aware of the type or kind of risk, even if she was not aware of its precise nature, extent or manner of occurrence. She knew that stallions were dangerous and that this particular stallion was "nippy". She had previously been thrown from a horse and suffered an injury. She knew that horses could be dangerous. She knew that horses suffered injuries and attacked each other in relation to being in season, as she had owned a stallion who had been injured in the course of attempting to mate with a mare. All of these matters make it clear that the plaintiff was well aware of the risks of horse riding and in particular of the risk of riding into a paddock containing a mare which she not only knew to be in season but which she had placed there herself without prior consultation with the defendant.
241I am satisfied, in relation to the statutory defence, that the elements necessary for the statutory defence to be made out have been established by the defendant.