Ready to Ride? The proper delegation of State’s statutory function; reliance on expert witnesses and obvious risk

25 March 2020

The plaintiff suffered serious injury in a motocross accident and sued the State of NSW. The plaintiff’s claim rested on an allegation that the State had improperly issued a licence to a motocross track which was non-compliant with relevant standards. The State denied this and pleaded obvious risk.

In Issue

  • Whether the State had improperly delegated its statutory function
  • Whether the licence was to a non-compliant track
  • Whether this caused the plaintiff’s injury
  • Whether the defence of Dangerous Recreational Activity applies

The background

The plaintiff was 19 years old when he suffered traumatic brain injury and very severe disability in a motocross accident in 2004. He brought a claim against 4 entities but the State of NSW remained the sole defendant at the time of hearing.

The plaintiff alleged that the State had failed to properly exercise its statutory function by issuing a licence to the motocross track, which he claimed did not comply with the relevant by-laws.

The decision at trial

Justice Cavanagh held that the plaintiff did not satisfy the factual basis for his claim. His Honour concluded that the evidence was so uncertain as to the state of the track at the time of licencing that he was not prepared to infer it was non-compliant, but in any event the accident arose as a result of the plaintiff coming into contact with another rider rather than track design.

In considering whether the State had improperly delegated the function of issuing a licence, His Honour held that seeking expert advice from bodies associated with the sport and/or Police did not amount to a delegation of function to those persons, but enabled the proper exercise of that function by the State. Moreover, taking advice from relevant experts did not create a relationship that would impose a vicarious liability for the actions of said experts.

Two experts were called to give evidence on track design and compliance, one of whom conceded they had no specific expertise in motocross tracks and only general engineering expertise. The experts were each asked to rely on different assumptions, neither expert inspected the track, and were both unable to comment conclusively on compliance on the date of licencing. The experts both provided estimated measurements based upon a drawing which was not proven to be to scale, and conceded that their estimates may be inaccurate if the drawing was out by even 1mm. His Honour considered there were too many unproven assumptions to accept either expert’s conclusions regarding non-compliance.

Lastly, Justice Cavanagh held that motocross is objectively a Dangerous Recreational Activity and the defence afforded by Section 5L of the CLA applied. His Honour did not accept the plaintiff’s submission that the risk in question was riding on a non-compliant track which would not be obvious, as he did not accept that the harm arose by reason of any non-compliance. The harm arose due to collision with another bike, and thus this was the risk to be assessed, which he concluded was an ‘obvious’ one.

Implications for you

This case highlights the importance of choosing the right expert to give evidence. The expert ought to have specialised knowledge in the specific field on which they are asked to provide opinion, and the assumptions on which they are asked to rely must be able to be proven to the Court on the evidence. While it is often appropriate that an expert make concessions regarding their opinion, care must be taken to ensure that these would not undermine the totality of their conclusions. In relation to obvious risk, the case highlights that section 5L of the CLA is not concerned with the basis on which the defendant may be negligent as it operates as a complete defence. When classifying the ‘obvious risk’ facing the plaintiff, the court will assess what the actual risk was that caused the accident, and then assess whether that risk was obvious.

Shaw v Oakdale Junior Motorcycle Club Inc [2020] NSWSC 180

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