Leyden v Caboolture Shire Council
[2007] QCA 134
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- Leyden v Caboolture Shire Council[2007] QCA 134
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Leyden v Caboolture Shire Council[2007] QCA 134
Leyden v Caboolture Shire Council[2007] QCA 134
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 4380 of 2001 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 20 April 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 March 2007 |
JUDGES: | Jerrard JA, Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, Mackenzie J and Helman J concurring as to the orders made, Jerrard JA dissenting |
ORDER: | 1. Appeal dismissed |
CATCHWORDS: | NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – LOCAL AUTHORITIES – where the respondent created BMX jumps – where there was unauthorised alteration of the jumps by a third party – whether the local authority owed the appellant a duty of care NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – GENERALLY – where there was a system of council inspection in place – whether the duty of care was breached NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – whether the breach caused the harm NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – MATERIALITY OF PLAINTIFF’S AGE – whether the appellant contributed to his injuries NEGLIGENCE – MISCELLANEOUS DEFENCES – OTHER DEFENCES – where the appellant was 15 years old at the time of injury – whether the defence of volenti non fit injuria applied Latham v R Johnson & Nephew Ltd (1913) 29 TLR 124, distinguished Paltidis v The State Council of the Young Men’s Christian Association of Victoria Inc [2006] VSCA 122, applied Roggenkamp v Bennett (1950) 80 CLR 292, applied Thompson v Bankstown Corporation (1953) 87 CLR 619, distinguished |
COUNSEL: | D Kelly, with S Ferrett, for the appellant R Morgan for the respondent |
SOLICITORS: | Carter Capner Lawyers for the appellant HBM Lawyers for the respondent |
[1] JERRARD JA: This appeal is against a decision in the District Court delivered on 28 June 2006, dismissing the plaintiff’s claim against the defendant Council for damages for personal injury. The plaintiff suffered that injury on 15 July 1999, when riding a bicycle on a BMX track constructed in May 1999 by the defendant Council on land within Bluebell Park, Caboolture. The plaintiff contended his injuries resulted from the defendant’s negligent breach of a duty owed to him. The learned trial judge held no duty was owed to the plaintiff, and if one was, then the judge upheld a plea of volenti. The judge dismissed the claim with costs.
[2] The track the defendant constructed in May 1999 was U shaped, and began at a starting ramp. There were a couple of mounds in a row, followed by an 1800 turn, involving the construction of a berm (a banked turn) to provide some camber, so that the turn could be executed at a faster speed. There were then two double jumps on the second straight stretch, and the plaintiff fell on the second of those. All of the jumps were made from soil.
[3] The learned trial judge described a BMX bike as a particular kind of bicycle intended to be ridden over unsealed surfaces and over obstacles and relatively rough terrain, with use specifically as a BMX bike involving riding over an obstacle course, in the process of which the bike can become airborne. Accordingly, a BMX track is not simply a flat track; instead a series of obstacles are provided over which cyclists can ride. Part of the attraction and skill in riding a BMX bike well is riding at sufficient speed over small humps so that bicycle and rider becomes airborne.
[4] The learned judge found that the Council was in occupation and control of the track, was aware of and consented to the use of it by members of the public such as the appellant, and was authorised to maintain and repair it. The judge accepted that the defendant had a practice of inspecting its BMX tracks weekly, because of their potential for accidents, and that it was aware that youths were modifying the jump on this BMX track on which the plaintiff fell, prior to the accident. The Council would accordingly carry out maintenance to return its jumps to their original condition, and one of the purposes of the inspections was to detect alterations, so they could be changed back.
[5] The appellant did not plead, or argue on appeal, that there was any deficiency in the design or construction of the BMX track. It was common ground that at the time the appellant was injured, the particular jump on which he fell was different from the way that it had been constructed by the defendant, because of unauthorised modifications to the jump made by a person or persons who were outside the control of the defendant. The learned trial judge recorded that there was no allegation that there had been any failure to warn the plaintiff about the state of the relevant jump, and no dispute about the fact that the plaintiff was quite aware at the time of the altered state of the jump. As the judge put it, the plaintiff’s case was advanced on the basis that the Council ought to have taken more vigorous steps to detect alterations to the jump, and to reinstate the jump to its previous condition.
[6] Exhibit 1 at the trial was a photograph of the jump in its modified state, which the appellant said in evidence represented the state of the jump at the time of his accident. The learned trial judge was not prepared to find that the jump was in that modified state shown in exhibit 1 for any longer than one week prior to 15 July 1999, and considered it was not clear that it had been in that state for as long as one week.
[7] The modified jump shown in exhibit 1 had a take-off ramp followed by a dip and then a landing ramp. Exhibit 1 showed another BMX rider attempting that jump; the cyclist is quite high in the air. The trial judge found that the intention was that a rider would ride quickly up the take-off ramp, become airborne, and land on the landing ramp. The modifications had been carried out by a Mr Perkins, who lived nearby, and who at the time of the trial was a professional BMX rider. He was not a defendant, but a witness. He had modified that jump by taking the sides out and adding extra height, a foot or a foot and a half of dirt. That was done over a period of time, using shovels, and he modified the jump to make the takeoff angles steeper, and to allow him sufficient time while airborne to do various tricks. The appellant was also an experienced BMX rider, though not as skilful as Mr Perkins; prior to the accident he would attend that track between three to five times a week, staying there for one to two hours. He was aware of the changes that were being made by Mr Perkins to the critical jump, which had the effect of changing what had been a table top jump – a jump involving a mound with a flat top – into a double jump or a canyon, with a gap between the first and second mounds.
[8] The appellant was 15 at the time of the accident, and had had a few previous crashes while riding his BMX bike, but with no serious injuries. On an earlier occasion, when the jump on which he fell was in a very similar condition to that shown in exhibit 1, the appellant had successfully jumped it perhaps five times. He said of it, in its modified condition:
“You had to be extremely careful. You had to increase your speed, like to 100 per cent to make the jump. It was a long way between the two landing and start ramps.”
[9] On 15 July 1999 he had come home from school and gone to the BMX track at about 3.30 pm, met some friends, and ridden around the track, including leaping that last jump successfully on one occasion. After a break he attempted it again, and this time was unsuccessful; he could not explain what went wrong. He knew that the jump required as much speed as possible, and that if he did not make it he would probably crash. Mr Perkins, who was actually present at that time, said that the appellant came in a little “short”, hit the ramp, bounced up and ended up in quite a bad way.
[10] The judge considered that the defendant, as a public authority invested with statutory care, control, and management of public land, had a duty to take reasonable care to safeguard the persons entering that land, such as the appellant, from physical harm.[1] The judge also observed that while people who use facilities provided by a Council in a public park were relying on the Council to take reasonable care, both in terms of their original construction and the subsequent maintenance, to ensure that the facilities were reasonably safe, the plaintiff was in a different position. He was not relying on the Council to provide a jump which was reasonably safe, since he knew that jump was in the state it was in because of the actions of other people. He also knew that the effect of those actions of others had been to make the jump more hazardous. He was therefore relying on the ability of those who modified the jump to produce one which was able to be used, and on his own ability to use it. The judge considered the plaintiff was sufficiently mature to be able to exercise his own judgment as to whether to attempt that particular jump in the state it was in.
[11] The learned judge observed that the content of the duty of care owed by the respondent Council would not be identical in all cases, citing the observations of Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [123], and Koehler v Cerebos (Aust) Ltd (2005) 214 ALR 355, at [35]. The learned judge held that because of this plaintiff’s knowledge of the modification, and of the risk, and because of his experience, no duty was owed by the Council to him to intercept the modification of the jump before he unsuccessfully attempted to execute it on a second occasion on 15 July 1999. Alternatively, the learned judge concluded that if a duty was otherwise owed and breached, the defendant had established a defence of volenti. The judge found that the plaintiff had the appropriate subjective appreciation of the risk.
[12] On appeal, the appellant’s counsel argued that the respondent’s duty was to take reasonable care to ensure its system of inspection for modifications of the BMX jumps was carried out with reasonable care, so that the high risk jumps were reduced back to the level of the original facility created. The respondent’s counsel conceded a duty to the world at large (although denying it was owed to the appellant) to take reasonable care to ensure that its system of inspection for modifications of the jumps was carried out with reasonable care. There seemed little difference between those formulations, and the contest, in part, was whether the duty was owed to the plaintiff. Those formulations were consistent with the general duties described by the learned trial judge, and with the descriptions of the duty of a Council as a public authority vested with statutory care, control, and management of public land, expressed in the judgment of the High Court in Vairy v Wyong Shire Council.
[13] That case concerned a person who was injured when diving into water from land under the care of the defendant Council. Gleeson CJ and Kirby J accepted, without criticism, the assumption of the trial judge that the plaintiff was owed a duty to take reasonable care to protect him from unnecessary risk of physical harm.[2] McHugh J expressed it as a duty to take reasonable care to safeguard (Mr Vairy) from physical harm[3], and Gummow J repeated, without criticism, the concession by the defendant that:
“As a public authority vested with statutory care, control and management of public land [it] owed a duty to take reasonable care to [Mr Vairy].”[4]
[14] Hayne J described the Council owing a duty to take reasonable care to those who entered the land of which the Council had the care, control, and management[5]; and Callinan and Heydon JJ wrote that[6] the Council had correctly conceded it owed a duty of care to the appellant, but that that duty was conditioned very much by the fact that that appellant had set out to extend himself physically.[7] As each of those judgments demonstrate, the critical question then becomes the content of the duty. In this matter the parties were largely in agreement about that, although the respondent, supporting the decision of the learned trial judge, denied that that particular plaintiff was owed the otherwise admitted general duty.
[15] The respondent Council’s submissions on the appeal included that, had two BMX riders arrived at the track at the same time, one of them being the appellant who knew the particular jump had been modified over the course of the proceeding week by Mr Perkins, and the other who did not know that the jump had been modified at all, then if each attempted that modified jump unsuccessfully and both were injured, the Council might be liable to the rider unaware of the unauthorised modifications, but would not be liable to Mr Perkins. [The submission assumed, for the sake of argument, that other matters were found against the Council, including a breach of its conceded general duty as described by the Council]. Counsel for the respondent submitted that the difference in potential liability was explained because of the lack of reliance by the appellant on the fact that the Council had provided a jump in that condition for his usage; the appellant knew the Council had not. That does distinguish between those notional plaintiffs, but not in respect of the general duty the Council conceded it owed. The proper performance of a duty to conduct regular inspections, so that modifications making the jumps more risky could be reversed, would help to prevent injury both to riders who knew a jump was modified, and to riders who did not. Both riders would be confronted by a jump in the same condition. The Council had created the BMX track and knew some users were changing at least that jump, making it a more risky one.
[16] In Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 McHugh J wrote:
“Consistently with the decision in Romeo, then, it should now be accepted that the duty of care owed to entrant on public land is a duty owed to them as a class, and not to each of them as individuals. In so far as a public authority owes a duty to an individual entrant, it is correlative with the duty of the class and is not measured by reference to the personal characteristics of that individual member. Only in that sense can the duty be said to be owed to each entrant personally. There is nothing unusual in the common law defining a duty in terms of a class without regards to the characteristics of individual members of that class.”[8]
[17] I respectfully agree, and prefer the view that the duty conceded by the Council was owed generally to a class of potential users of the BMX track. The appellant did not suggest that the duty required any greater degree of inspection than in fact occurred, namely weekly, but it contended the evidence supported a finding – made by the learned trial judge – that that duty had in fact been negligently performed in an inspection carried out, most probably, on 15 July 1999.
[18] As quoted earlier, the learned trial judge held that ordinarily people who use facilities provided by the Council in a public park are relying on the Council to take reasonable care, both in terms of their original construction and their subsequent maintenance, to ensure that the facilities will be reasonably safe. The respondent did not challenge that observation. The learned judge found that the weekly inspections were not sufficient to prevent modification of the BMX track by people such as Mr Perkins, and that a modified jump could be fixed by the Council, and then modified again, within hours of it being returned to its original condition by the Council. The judge concluded that no reasonable degree of inspection would have been adequate to prevent any modification, and that the only effective way to prevent change being made to the jump would be to have somebody stationed permanently at the site. However, the learned judge concluded that that would be the imposition of an unreasonable burden on the Council, and the appellant did not challenge that conclusion.
[19] Evidence from the Council staff responsible for inspecting and remodifying the BMX tracks was that the jump on which the appellant was injured did pose a safety risk, in its state as modified by Mr Perkins. The learned judge concluded that a Council employee had inspected the park on 15 July 1999, the day the appellant was injured, and considered it more likely than not that that employee had been there before the plaintiff injured himself, after school. The judge also thought it more likely than not that if that employee had examined the jump, he would have seen what was shown in exhibit 1, or something like it, and the judge thought the most likely explanation for the fact that that employee claimed not to have seen anything like the jump in its condition in exhibit 1 was that the employee did not carefully inspect the BMX track, and had failed to realise there was a significant modification to it.
[20] The judge was accordingly satisfied that if there was a duty owed to the appellant, there was a breach of it, because of a failure on that occasion properly to examine the track, and that accordingly a question of causation arose. As the judge observed, Mr Perkins was there that day, and all that could have been done on 15 July 1999 to change the jump would have been superficial work by the Council employee with a shovel. There appeared general agreement amongst the Council employees – the only witnesses on the point – that use of a bobcat would have been necessary to return the modified jump to its original condition, although the use of a shovel would have lowered the top of the ramp. It would have been between one to two days before a bobcat would have been available to repair a modification seen on the inspection on 15 July; however, the learned judge concluded it was more likely than not that had the employee observed the jump and done something to modify it on 15 July (i.e. with a shovel), the plaintiff would not have suffered his injury as and when he did. Accordingly, if there was a duty of care, the Council had breached it and was liable.
[21] On the hearing of the appeal the Council challenged that last conclusion – that if a duty existed it was breached, and the breach caused damage – but it was a conclusion open to the learned judge. The respondent argued it was speculative, particularly because of the presence of Mr Perkins at the track that day (who may have reversed any modification which was done); but the evidence of the respondent’s employees suggested that at least some modification would have been thought necessary and appropriate on 15 July 1999 had the jump been noticed then to be in the condition in which it was. It follows that I respectfully disagree with the learned judge that the appellant was not owed the same general duty as other BMX riders (namely – as was close to common ground – a duty of regular inspection and reshaping where necessary), but agree that the evidence supported the judge’s conclusions that there was a breach of that duty, resulting in injury.
[22] That makes critical the learned judge’s conclusions that the appellant was in a good position to assess the risk involved in attempting the jump, that he had sufficient experience to enable him to do so properly, and he had the appropriate subjective appreciation of the risk. The judge referred in that regard to the appellant’s evidence that he was actually aware of the specific risk, namely that of failing to make the other side by not jumping long enough to land properly on the landing ramp. He was also aware of the general risk of injury from BMX jumping. For that reason the judge held the defence of volenti was established. The appellant urges as accurate the description of that defence provided by McClellan CJ at Common Law, in Carey v Lake Macquarie City Council [2007] NSWCA 4, where the learned Chief Justice wrote:
“76. It is important to keep in mind that knowledge of a risk is not itself sufficient to make out the defence. It has been repeatedly pointed out in the authorities that the test is volenti non fit injuria, not scienti non fit injuria (Thomas v Quartermine (1887) LR 18 QBD 685 per Bowen LJ). That is, proof of knowledge is necessary but not sufficient in order to prove that the plaintiff voluntarily agreed to accept the risk. A plaintiff is not presumed or deemed to have voluntarily accepted a risk merely because he or she knew about it and exposed themselves to it. However, there will rarely, if ever, be direct evidence that the plaintiff voluntarily agreed to accept a risk. There agreement will usually have to be implied or inferred from their conduct. In Roggenkamp[9] at 300, McTiernan and Williams JJ (qutoing from the 2nd Edition of Halsbury’s Laws of England) state:
‘The inference may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as, for example, where the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, then in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not.’
77. Accordingly, where the defence is raised, the tribunal of fact will usually be entitled (but not bound) to infer that the plaintiff voluntarily accepted a risk when it is proved that the plaintiff actually perceived and fully appreciated the risk.”
[23] The learned Chief Justice added a little later that an inference of free and voluntary agreement could not be made if a plaintiff had a genuine belief that the risk would not materialise, but that point is not available for the appellant here. The defendant established knowledge and appreciation of the risk by the plaintiff, subject to the capacity of a 15 year old voluntarily to accept the consequences of a risk.
[24] The Council had created the BMX track, which youthful riders were using. As a class those riders were likely to attempt to improve their skills and to believe they had done so. It could be predicted that with the confidence of youth they would attempt to demonstrate their skills to impress others, and would take risks in doing that. The Council employees agreed this jump was dangerous and needed modification back to its original form, as the appellant’s brother did in fact do later on the day of 15 July 1999, after the appellant was injured.
[25] The appellant’s youth when injured, and the predictable youth of other BMX riders using the track, and the probability that those riders would take risks to show off their skills, makes relevant the observations by Dixon CJ and Williams J in their joint judgment in Thompson v Bankstown Corporation (1953) 87 CLR 619 at 631, citing from Lord Sumner in Latham v R Johnson & Nephew Ltd [1913] 1 KB, at p 413:
“... Children acting in the wantonness of infancy and adults acting on the impulse of personal peril may be and often are only links in a chain of causation extending from such initial negligence to the subsequent injury. No doubt each intervener is a causa sine qua non, but unless the intervention is a fresh, independent cause, the person guilty of the original negligence will still be the effective cause, if he ought reasonably to have anticipated such interventions and to have foreseen that if they occurred the result would be that his negligence would lead to mischief.”
[26] McTiernan J in that same case also described that infant plaintiff’s own foolish conduct as a link in the chain of causation between the negligence and the injury, because that conduct was a thing done in the “wantonness of infancy”[10]. The appellant here was still young enough that an act of his conscious volition did not relieve the Council from liability for not having noticed a modification to the jump, which increased the danger that riders of his age would be willing to risk, simply because it was there.
[27] A youthful willingness to undertake risk to impress others by displaying skill is less than the voluntary assumption of the risk of injury by a person comprehending the consequences, which will relieve a Council from the consequences of a breach of duty. While the appellant was prepared to risk his safety because of his youth and misplaced self‑confidence, his predictable risk taking, and that of other children and young people using the BMX park, did not relieve the Council of liability for the consequences of its failure to maintain a regular and careful inspection of those tracks. It substantially reduces the Council’s liability for those consequences, but not entirely.
[28] Because no complaint was made about the track as constructed and designed by the Council, this case differs from that considered by the New South Wales Court of Appeal in Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308, to which the appellant’s counsel referred this Court.
[29] The appellant certainly contributed to his own injuries and I would accept that his contribution was equal to the Council’s. Damages were agreed in the sum of $115,000, and accordingly I would allow the appeal, set aside the judgment for the defendant with costs, and order instead judgment for the plaintiff in the sum of $57,500, and order that the respondent Council pay the plaintiff’s costs of and incidental to the trial and of and incidental to this appeal, to be taxed on the standard basis.
[30] MACKENZIE J: This appeal has implications for local authorities who respond to their community’s desire for recreational facilities to be provided to enable young people to spend their leisure time in physical activities with an element of risk.
[31] I agree with Jerrard JA’s reasons except those with regard to whether the learned trial judge’s finding that the defence of volenti non fit injuria had been made out should be set aside. To explain why I am not persuaded that the learned trial judge erred, it is necessary to appreciate what the appellant’s evidence was at trial.
[32] The appellant had been riding bicycles since he was four or five and got his first BMX when he was 10. He had increased his BMX skills as time passed. He said that he went to the BMX track three to five times a week in the period before the accident, usually spending one and a half to two hours there. In late June or early July 1999 he noticed that the jump had been changed to make the take-off and landing ramps bigger. Originally the jump had not been nearly as high. Previously, the take-off ramps were not as steep and, as the appellant said, “if you were second guessing at the last minute” the jump could have been aborted when the ramp was in its original form. After the modification was made, it was necessary to “commit to the jump unless you are a few metres away”. The fact that the modification had converted the jump from a tabletop to a “canyon” where there was a gap to jump over, removed the possibility of rolling over the flat tabletop surface instead of jumping.
[33] The appellant said that it was necessary to approach the modified ramp at maximum possible speed. He appreciated that he would probably crash if he did not do so.
[34] He also gave evidence that he had successfully attempted the jump on perhaps five occasions prior to the day of the accident. It was the most challenging jump he had ever attempted. When he first decided to attempt the jump, on an occasion prior to the day of the accident, he had no second thoughts that his skill level might not be sufficient to complete it successfully. He said at that time, he knew it was a difficult jump but he was, afterwards, “happy that he had landed it”.
[35] He knew that the preferred technique was to ride as fast as possible approaching the jump and to land smoothly, either with both wheels contacting the ramp simultaneously, or with the back wheel first, letting the bike’s momentum bring the front wheel down onto the ramp. He knew that if the front wheel touched down first it was almost inevitable that the rider would be thrown over the handlebars. He knew that a fall carried with it the risk of injury. He agreed that even if there had been a sign warning users to be aware of their limitations, he still would have attempted the jump. He thought he could make it.
[36] He said that he had already successfully made the jump once on the day of the accident, 15 July 1999, before he crashed. He said that the ramp looked very similar to the way it had been for some time. He agreed that he had made an assessment based on his past attempts at the jump that he could safely do it, (which on the first occasion that day proved to be the case).
[37] In Roggenkamp v Bennett (1950) 80 CLR 292, 300, the judgment of McTiernan and Williams JJ says the following:
“Taking the defence of volenti non fit injuria, the onus was on the respondent to prove this defence. The elements of the defence are conveniently stated in Halsbury’s Laws of England, 2nd ed., vol. 23, at pp. 716-718. There it is said that: “In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of danger, for this alone would be insufficient, but also that he fully appreciated it and voluntarily accepted the risk. The question whether the plaintiff’s acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from his conduct in the circumstances. The inference may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as, for example, where the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not.”
In Paltidis v The State Council of the Young Men’s Christian Association of Victoria Inc [2006] VSCA 122 Ashley JA recently stated the test as being that a defendant must obtain a finding of fact that the plaintiff freely and voluntary, with full knowledge of the nature and extent of the risk that he ran, which culminated in the injury, impliedly agreed to incur it.
[38] The learned trial judge made unequivocal and unqualified findings in favour of the respondent defendant in the following paragraphs of his reasons for judgment:
“Volenti
[43]This defence was pleaded and pressed on behalf of the defendant. On behalf of the plaintiff it was submitted that the plaintiff had not and could not have appreciated all of the risk given his age and previous successful experience with the jump. I have referred already to the plaintiff’s evidence about how difficult and demanding this particular jump was. His answer at p 11 line 40 shows that he was actually aware of the specific risk that he faced, that of failing to make the other side, that is not jumping long enough to land properly on the landing ramp. Although the plaintiff was not able to given an account of how the accident occurred, the most likely explanation is that the plaintiff came down too soon, and clipped the top of the landing ramp rather than landing on it, so that he was thrown forwards. It is apparent from his evidence that he was aware of that specific risk.
[44]It may be that his earlier successful completion of the jump had led him to conclude that this was a risk he could overcome, or avoid, but I do not think that that is to the point. He was aware of the risk of injury from BMX jumping, having suffered some previous injuries himself, and he would often wear a helmet because of the risk of injury from falling: p 20. The fact that he may not have anticipated as severe an injury as he suffered is not, I think, crucial to a defence of volenti. This is a case where the risk was one posed by an existing risky condition, the state of the jump, not something which depended upon some future risky action of another. The plaintiff was in a good position to assess the risk involved, he had sufficient experience to enable him to do so properly, and he had the appropriate subjective appreciation of the risk; it was not just that he ought to have appreciated that it was risky. In all the circumstances, if it were necessarily to determine this point, I would hold that the defence of volenti had been made out.”
Earlier, he had said:
“[15]In the present case it is unnecessary to consider whether, from the point of view of someone who came upon this jump without prior knowledge, its appearance alone ought to have been sufficient to make it an obvious hazard. The plaintiff was thoroughly familiar with it, and as a regular user of the BMX track at the park, had observed its modification. Although he claimed never to have seen anyone actually modifying the jump, he conceded that he knew that the jump was being modified by others, and he knew from experience just how difficult a jump it was to complete successfully. He was, although not an adult, an experienced BMX bike rider, and was I think sufficiently mature to be able to assess these matters for himself.”
[39] In making those findings of fact, he had all the advantages that a trial judge has and which the Court of Appeal does not, in assessing the appellant’s credibility, maturity and judgment-making capacity even though he was only 15 years and 3 months at the time of the accident. At that age, he was more than three years older than the boy who climbed a power pole and suffered electric shock from a live wire in Thompson v Bankstown Corporation (1953) 87 CLR 619, while the child in Latham v R Johnson & Nephew Ltd (1913) 29 TLR 124 was only two years three months of age. This appellant was in that stage of sub-adulthood where it is common experience that the degree of maturity can vary significantly between individuals. The learned trial judge, having had the opportunity to see him give evidence over an extended period, was in a unique position to make a judgment on the critical issue, which was whether the very frank admissions made at trial, some years later, as to his appreciation of the risk at the time he attempted the jump that caused his injuries should be discounted rather than taken to be an accurate recounting of his understanding and decision-making process at the time of the incident.
[40] It is impossible not to feel sympathy for the appellant who has suffered, at a young age, as a result of the accident. However, the learned trial judge made positive and unequivocal findings adverse to him on all elements of the defence of volenti. While the age of a person injured is undoubtedly an important factor to be taken into account, I cannot identify any reason to find that the learned trial judge gave too little weight to the appellant’s age, having regard to the way the findings are expressed, or misdirected himself on the applicable principles or failed to use or misused his advantage in accepting the appellant’s very frank admissions concerning the basis upon which he formed his intention to attempt the jump (Devries v Australian National Railways Commission (1993) 177 CLR 472). The learned trial judge took into account the appellant’s age and considerable experience in riding BMX bikes and formed a judgment that although he was not an adult, he was sufficiently able to assess the risks for himself.
[41] The findings made were ones which the learned trial judge could properly make on evidence of the particular quality and strength in this case. He properly directed himself as to relevant matters to take into account. Therefore no basis has been demonstrated for setting his finding on behalf of the defendant aside. Recent authority, the latest of which to which we were referred being Carey v Lake Macquarie City Council [2007] NSWCA 4, suggests that while the defence of volenti may be a highly endangered species, it is not yet extinct. Its boundaries are undoubtedly nowadays confined narrowly. In my view, this case is a rare example of one that falls comfortably within the defence on the unusually clear facts of the case. In my view the appeal should be dismissed with costs.
[42] HELMAN J: Successful reliance on the defence volenti non fit injuria is rare, but while it survives there will be cases in which it can and should succeed. This case is, I think, one of those instances, and so I agree with Mackenzie J.’s conclusion and respectfully disagree with Jerrard J.A.’s. The track upon which the appellant came to grief was certainly a dangerous allurement but the appellant was fully aware of the risk he ran and voluntarily incurred it. The only reservation I had initially related to the appellant’s youth, but I agree with Mackenzie J.’s conclusion based on the learned trial judge’s finding that, although the appellant was not an adult, he was sufficiently mature to justify the success of the defence.
[43] The appeal should be dismissed with costs.
Footnotes
[1] Citing Vairy v Wyong Shire Council (2005) 223 CLR 422; (2005) 221 ALR 711 at [20] and [117].
[2] At [1] of the reasons.
[3] At [20].
[4] At [74].
[5] At [117] and [118].
[6] At [214].
[7] At [216].
[8] At [18].
[9] Roggenkamp v Bennett (1950) 80 CLR 292.
[10] Thompson v Bankstown Corporation (1953) 87 CLR 619 at 663.