Part 1A - Negligence

Two skiers collided while skiing down the slopes of Perisher Blue. One was the plaintiff. The other was a ski instructor employed by the defendant and acting in the course of his employment, though he was not instructing the plaintiff at the time. Both were competent and experienced skiers, and neither saw the other until the moment before the collision. In proceedings brought by the plaintiff, seeking damages for a number of injuries sustained in the collision, the Court held that the collision was caused by the negligence of the ski instructor and that the plaintiff was not guilty of contributory negligence. A pleaded defence of voluntary assumption of risk by reference to a risk warning within the meaning of s 5M was unsuccessful, but the defence under s 5L was made out.

On s 5K: In determining whether skiing is a dangerous recreational activity as defined in s 5K, it is necessary to consider both the potential nature and degree of harm as well as the likelihood of harm materialising: [150]. Statistics relied on by the plaintiff to establish the low rate of injuries at Perisher may be relevant but do not conclusively resolve the question of whether the plaintiff was engaged in a dangerous recreational activity: [143]. For the purposes of answering that question it is not necessary to identify a particular risk of harm or indeed to consider the obviousness of potential harm: [151]. There can ultimately be no doubt, and it is a matter of common knowledge, that skiing is a dangerous recreational activity: [152]-[155]. Statistics relied upon by the plaintiff do not contradict that conclusion; those statistics only show the number of incidents recorded, and do not address the potential for harm to be catastrophic: [156]-[157].

Mr Cox piloted a light aircraft that collided with a Ferris wheel erected in the splay of the landing strip at the Old Bar Airstrip for the Old Bar Festival. A passenger in the Ferris wheel, Ms Arndell, sued the Mid-Coast Council (‘the Council’) and Mr Cox for negligence in relation to the collision. Mr Cox also sued the Council for negligence. The Old Bar Airstrip was operated by the Council through an Airstrip Committee, and organisers of the Old Bar Festival had to apply to the Council to use the land adjacent to the airstrip for the event. The operator of the Ferris wheel made a separate application to the Council for the operation of the Ferris wheel at the festival. The Council’s liability to each plaintiff was potentially limited by the application of Part 5 of the Civil Liability Act, and its liability to Mr Cox was potentially additionally limited by the application of s 5L of the Civil Liability Act. The Court gave judgment for Ms Arndell against the Council, apportioning liability for the incident to Mr

Cox as to 35%, and gave judgment for the Council against Mr Cox.

On s 5K: In applying the definition of “recreational activity” in s 5K, the Court accepted that flying a plane may not have been a “sport” for the purposes of paragraph

(a) of the definition, nor, despite the public nature of the airstrip, an activity engaged in at a place where people ordinarily engaged in sport or activity for enjoyment, relaxation or leisure for the purposes of paragraph (c). The fact that Mr Cox held a “recreational” pilot’s licence was relevant but not determinative. Mr Cox was not paid to fly the plane, nor was his passenger a paying passenger. Plainly the flight was an activity engaged in for Mr Cox’s enjoyment and leisure: [283]-[287], [292]-[298].

Mr Singh, a professional jockey, was injured when the respondent Mr Lynch rode his horse so as to push the horse alongside him into the path of Mr Singh’s horse (in breach of the rules of racing) causing Mr Singh’s horse to fall. The primary judge dismissed Mr Singh’s claim on the basis that Mr Singh’s injuries were the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by Mr Singh (namely professional horse-racing).

On s 5K: The effect of pars (a) and (c) of the s 5K definition of “recreational activity” is to expand the ordinary meaning of those words: [19]. Neither the language nor the structure of the provision provides a basis for excluding professionals involved in a sporting activity from the definition of “recreational activity”: [20]-[29].

The Appellant volunteered at a greyhound track managed by the Respondent. He was struck in the leg by the lure and seriously injured while operating a catching pen gate. The primary judge found this injury to be the realisation of an obvious risk of a dangerous recreational activity such that s 5L of the CLA provided a complete defence to the claim. 

On s 5K: The activity of operating the catching pen gate did not fall within par (b) of the definition of a recreational activity.

The purpose of the Appellant’s presence was to assist in the conduct of races, which was not something from which he derived or sought to derive “enjoyment or relaxation” or which he undertook for the purpose of “leisure”: [50]-[51]. However, s 5K extends the definition of recreational activity beyond activities undertaken for a recreational purpose and the activity in question clearly fell within par (c) of the definition. That paragraph should not be construed as limited to “any pursuit or activity of a recreational character”: [75], [80], [97], [99]. There is no reason to doubt the factual conclusion that the activity was a dangerous one, involving a significant risk of physical harm, as the lure travelled at more than 70 kilometres per hour: [105], [110].

The appellant, Ms Tapp, was injured while competing in a campdrafting event organised by the respondent, the Australian Bushmen’s Campdraft & Rodeo Association Ltd (“the Association”). Ms Tapp’s horse slipped, causing Ms Tapp to fall and suffer a serious spinal injury. Ms Tapp brought an action in negligence for damages against the Association. Ms Tapp’s claim was dismissed by the primary judge. That decision was upheld by a majority of the New South Wales Court of Appeal. Ms Tapp appealed that decision. The High Court, by majority, allowed the appeal.

On s 5L: The Court set out the principles applicable to the application of the s 5L defence, including principles relating to foreseeability. This issue was whether there was a risk of that activity that was obvious (as defined by ss 5F and 5K) and that materialised: [104]-[105], [108]-[115]. The primary judge characterised the risk differently on three occasions as: “the risk of falling and being injured”; or as the risk “that the horse would fall and as a consequence of that, [Ms Tapp] would fall and be injured”; or as “the risk of falling from the horse and suffering an injury whilst

competing in a campdraft competition, given the complexities and risks inherent in and associated with that activity”: [121]. The appropriate characterisation of the relevant risk was “the substantially elevated risk of physical injury by falling from a horse that slipped by reason of the deterioration of the surface of the arena”: [125]. Section 5C(a) of the Civil Liability Act reflects, and is consistent with, the common law. The effect of this provision is that a defendant cannot avoid liability by characterising a risk at an artificially low level of generality, that is, with too much specificity: [108].

Following consideration of the four factors in s 5B(2), the Court found that the Association breached its duty of care by failing to stop the competition to inspect the ground and determine whether it was safe to continue the competition : [128]-[137], [139], [143].

The minority found that Ms Tapp did not satisfy the onus imposed by s 5E in relation to causation as the reason as to why the horse’s leg slid was unproven: [44]-[45].

The minority further considered that s 5C(c), which prohibits the use of hindsight to establish negligence, operates to prevent the Association’s decision to suspend the competition after Ms Tapp’s fall from informing either the Association’s appreciation at the time of her fall of the extent of the floor’s deterioration: [51].

NSWCA decisions cited in discussion:

C G Maloney Pty Ltd v Hutton-Potts [2006]

NSWCA 136

Cox v Mid-Coast Council [2021] NSWCA 190

Goode v Angland [2017] NSWCA 311

Menz v Wagga Wagga Show Society Inc

[2020] NSWCA 65

Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263

HCA decisions cited in discussion:

Astley v AusTrust Ltd (1999) 197 CLR 1;

[1999] HCA 6

Chapman v Hearse (1961) 106 CLR 112;

[1961] HCA 46

Fairfax Media Publications Pty Ltd v Voller

(2021) 95 ALJR 767; [2021] HCA 27

Rosenberg v Percival (2001) 205 CLR 434

Mr Cox was injured when the light aircraft that he was piloting collided with a Ferris wheel during an attempted landing at the Old Bar Aircraft Landing Area (‘ALA’), an unlicensed aerodrome not subject to any regulatory oversight. The Ferris wheel had been erected by the Mid-Coast Council two days earlier and encroached on the splay of the grass airstrip (the area through which aircraft may travel when taking off or landing). The Council was found to have been negligent in a claim by a passenger on the Ferris wheel, but the primary judge held that Mr Cox’s claim was precluded by s 5L of the Civil Liability Act as the harm suffered was the result of the materialisation of an obvious risk of a dangerous recreational activity. Mr Cox appealed and the Court of Appeal dismissed the appeal.

On s 5L: The relevant risk is to be characterised with a degree of generality, but with sufficient precision to capture the harm in fact resulting from its materialisation on the particular facts of the case, requiring a combination of foresight and hindsight: [36]. A degree of generality is necessary in order to preserve the intent of the provision in allocating the burden of harm: [43].

Any structure in the splay of an ALA creates a risk of collision and serious injury, and it is sufficiently commonplace for structures to appear in the splay of an ALA that pilots are advised to conduct detailed safety checks prior to attempting a landing. In those circumstances, the risk of harm was appropriately characterised as the risk of Mr Cox’s plane colliding with a hazard or built structure in the splay, without needing to further specify that the structure in question was a Ferris wheel: [44].

There is no requirement that the risk identified for the purposes of s 5L be characterised in the same terms as that identified for the purposes of s 5B; the former is to be characterised from the perspective of the plaintiff, the latter from the perspective of the defendant: [48].

Mr Singh, a professional jockey, had been injured when the respondent Mr Lynch rode his horse so as to push the horse alongside him into the path of Mr Singh’s horse (in breach of the rules of racing) causing Mr Singh’s horse to fall. The primary judge dismissed Mr Singh’s claim on the basis that Mr Singh’s injuries were the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by Mr Singh (namely professional horse- racing).

On s 5L: Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 sets out the principles applicable to the application of the s 5L defence: [49], [136], [150], [195]. The

primary judge characterised the risk for the purposes of s 5K as that of “the plaintiff’s mount falling, bringing him to the ground and causing injury”. The appropriate characterisation of the relevant risk was as the risk of a fall as a result of another jockey’s careless riding, constituted by deliberate contact with another horse, and contrary to the rules of racing. However, a prospective assessment of the obviousness of that risk should not reflect fine distinctions differentiating different aspects of unsafe riding. Thus a finding that certain conduct was “reckless” or even “deliberate” does not affect the obviousness of that risk: [66]- [69], [134]-[140], [146]-[157].

The minority would have characterised the risk more precisely, as the risk of another rider “deliberately directing his horse to push sideways… against another horse so abruptly as to move that horse off her line of running and into the line of running of a third horse” ([212]), distinguishing between the obvious risk of careless riding and the non-obvious risk of a deliberate and grossly negligent act: [225]-[228].

Two skiers collided while skiing down the slopes of Perisher Blue. One was the plaintiff. The other was a ski instructor employed by the defendant and acting in the course of his employment, though he was not instructing the plaintiff at the time. Both were competent and experienced skiers, and neither saw the other until the moment before the collision. In proceedings brought by the plaintiff, seeking damages for a number of injuries sustained in the collision, the Court held that the collision was caused by the negligence of the ski instructor and that the plaintiff was not guilty of contributory negligence. A pleaded defence of voluntary assumption of risk by reference to a risk warning within the meaning of s 5M was unsuccessful, but the defence under s 5L was made out.

On s 5L: The plaintiff submitted that the relevant risk should be characterised as the risk of an experienced and competent skier colliding with a ski instructor. The defendant submitted that the risk should be characterised in more general term, as the risk of a collision between two skiers: [164]- [169]. The relevant principles for the application of s 5L are set out in Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185, Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263, Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 and Menz v Wagga Wagga Show Society Inc

[2020] NSWCA 65: [171]-[175]. The question of obviousness must be addressed by reference to a reasonable person in the plaintiff’s position. It is thus relevant to consider the plaintiff’s personal circumstances, including skiing competence: [177]. However, it is inappropriate to focus on the personal characteristics of the other skier, by characterising the risk as that of a collision with a ski instructor, as this involves an exercise of pure hindsight: [182]-[189].

The plaintiff participated in a campdraft event organised by the defendant. She fell from her horse whilst completing late on the second day of a three day event and suffered a significant spinal injury. She is wheelchair bound. The plaintiff alleged that her fall was caused by the negligence of the defendant. The primary judge found in favour of the defendant and she brought an appeal.

On s 5L: Without clear evidence as to the nature of the risk posed by the surface of the arena where the appellant’s horse fell, it was not possible to identify the cause of the fall, or the risk of harm against which the defendant should reasonably have taken precautions: [2]. The appellant did not identify the way in which it was alleged the surface of the arena had deteriorated. The nature of the deterioration was critical to the appellant’s formulation of the obvious risk: [69].

If it were a sufficient description of the general causal mechanism of the injury to describe the risk as “the appellant’s horse falling in the course of the campdrafting competition”, the risk was obvious. Even if the risk were correctly framed as being “the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena”, the injury suffered by the appellant was the manifestation of an obvious risk. The former was far too broad; it would include the risk arising from a misjudgment by the appellant. The latter is also inadequate because, although it refers to the state of the arena, it fails to identify the nature of the deterioration which led to the risk of a fall. In either case, the risk was obvious to a reasonable rider competing in these kinds of events, in which the appellant had many years of experience: [77]-[78]. It is not correct that if the risk is proven to be a rare one, or not within the scope of what a participant was entitled to have “expected”, it is therefore not an obvious risk: [80].

The plaintiff was seriously injured when her horse fell while warming up before competition at the Wagga Wagga Show. The horse was startled by a very loud noise made by children playing with a metal sign on a nearby fence in the warm up area. The plaintiff brought a claim in negligence and pursuant to a statutory guarantee imposed by the Australian Consumer Law. The plaintiff alleged that there was a failure on the part of the Show Society to have supervisors to control the children in and around the warm-up area. Judgment was entered against the plaintiff.

On s 5L: The specification of the obvious risk must be sufficiently precise so as to capture the harm which resulted from its materialisation on the facts: [71]. The words “as a result of” require a causal connection between the harm and the risk which materialises. Determining the appropriate level of particularity in formulating the risk requires hindsight: [72]-[73]. It was appropriate to characterise the harm as the materialisation of the obvious risk of her horse being spooked by some stimulus, and it was not necessary to provide the additional particularity that the noise made by children spooked the horse: [78]-[79].

The warm-up should not be a separate

activity from the competition: [82], but even if it was separated, the warm up was still dangerous: [87].

In 2011 a five-year-old child was injured by falling through the railing of the Coffs Harbour Jetty onto the hard sand below.

There were large gaps between the railings, with no mesh infill or wiring. A sign at the entrance to the jetty warned that “USE OF THIS FACILITY MAY BE HAZARDOUS PLEASE

BE CAREFUL”. The jetty had been redeveloped by the State Government, with the Council’s involvement, before its opening as a public walkway in 1997. When it was handed over by the State Government to the Council in 2002, the State Government advised the Council that the railing complied with relevant Australian building standards at the time of its redevelopment. However, in the years preceding the accident in 2011 the council had been aware of a number of incidents involving children falling or nearly falling from the jetty but had taken no action.

On s 5M: to engage the duty-denying operation of s 5M a warning must be given in a manner reasonably likely to result in people being warned of the general nature of the particular risk before engaging in the activity. Read as a whole, the sign in this case was directed to the risk of diving from the jetty into waters of variable depth, and could not be relied upon to defeat the Council’s duty of care in relation to the risk that materialised, namely that of a child falling through the gaps between the railings: [111]-[120].

Two skiers collided while skiing down the slopes of Perisher Blue. One was the plaintiff. The other was a ski instructor employed by the defendant and acting in the course of his employment, though he was not instructing the plaintiff at the time. Both were competent and experienced skiers, and neither saw the other until the moment before the collision. In proceedings brought by the plaintiff, seeking damages for a number of injuries sustained in the collision, the Court held that the collision was caused by the negligence of the ski instructor and that the plaintiff was not guilty of contributory negligence. A pleaded defence of voluntary assumption of risk by reference to a risk warning within the meaning of s 5M was unsuccessful, but the defence under s 5L was made out.

On s 5M: the risk warning provided to the plaintiff identified a significant risk of physical harm or personal injury which may result either from the plaintiff’s actions or the actions, omissions or negligence of others. The required analysis is objective, ignoring whether the plaintiff actually believed there were risks associated with the activity. A risk warning need not instruct a recipient as to how to avoid the risk and need not precisely delineate each obstacle or hazard that may be encountered. However, the warning provided in this case was too general and failed to identify any particular risks. It merely identified that there are risks associated with skiing and identified the possibility of other persons being negligence: [191]-[208].

The plaintiff was seriously injured when her horse fell while warming up before competition at the Wagga Wagga Show. The horse was startled by a very loud noise made by children playing with a metal sign on a nearby fence in the warm up area. The plaintiff brought a claim in negligence and pursuant to a statutory guarantee imposed by the Australian Consumer Law. The plaintiff alleged that there was a failure on the part of the Show Society to have supervisors to control the children in and around the warm-up area. Judgment was entered against the plaintiff.

On s 5M: Where a risk warning is effective, no duty of care is owed: [125]. Where it is ineffective, warning of a risk is not a reasonable precaution against the risk, in circumstances where the risk warning is directed to extracting from participants an indemnity rather than to informing them of danger: [126]-[127].

The appellant was injured while riding a quad bike at the respondent’s recreational facility. One issue that fell to be determined on appeal was whether a term of the contract between the respondents and the appellant for the provision of recreational services purported to exclude the respondents’ liability for negligence and whether s 5N protected that term’s efficacy.

The heading to s 5N refers to “contractual duty of care” but there is nothing in the terms of s 5N itself to limit its operation to contractual duties of care. The effect of s 5A is that Part 1A of the Act is applicable to claims in both tort and contract and an appellant can choose to sue in contract, or tort or both. The heading of s 5N does not limit its operation.

In the immediate case, the respondents did not, as a matter of contract, exclude their liability. [51]-[54]