By Stuart Eustice, Partner and Holly White, Lawyer

The plaintiff was injured while performing freestyle motocross (FMX) at a monster truck and FMX ‘spectacular’ event at the Korumburra Showgrounds when he ‘overshot’ the down ramp, landing directly on the ground and causing him to be thrown off his motorbike. The plaintiff believed the down ramp was 75 feet from the up ramp, however it was in fact positioned at a shorter distance. The down ramp was placed by ‘Schuey’ (another performer) at the plaintiff’s direction. The plaintiff commenced proceedings against the defendant, the promotor and manager of the event.

The plaintiff claimed the defendant breached his duty of care by failing to provide a safe space for the performance. The defendant argued that by delegating the task of ramp movement to performers he had discharged his duty of care, and in the alternative, the plaintiff had voluntarily assumed the risk of the down ramp being incorrectly positioned.

The Court agreed the defendant had discharged his duty of care, finding it was reasonable and appropriate that he assign ramp movement to the performers as they were in the best position to determine where the ramps needed to be located. The Court held the defendant was not required to exercise any additional supervisory power over ramp movement.

The Court helpfully summarised the defence of voluntary assumption of risk as follows:

‘It is a complete defence to an action for negligence if the defendant can prove that the plaintiff voluntarily assumed the risk of being injured as a result of the defendant’s negligence…. In order to succeed in the defence, a defendant must establish:

1. The plaintiff had subjective knowledge of the facts constituting the risk;
2. The plaintiff fully appreciated and understood the nature and extent of the risk; and
3. The plaintiff voluntarily accepted the whole risk, freely and without constraint.’[1]

Prior to the jump, the defendant had told the plaintiff he thought the ramps were too close for the plaintiff’s jump, thus fulfilling the first requirement. In response, the plaintiff replied ‘Schuey measured it’, thus fulfilling the second requirement. In response to the third requirement, the Court considered there was no evidence indicating the plaintiff’s assumption of the risk was anything other than voluntary, free and unconstrained. In fact, the plaintiff had time to check the down ramp placement if he so wished.

In a this rare instance, the Court held that had it found the defendant breached his duty of care, it would nevertheless have found the plaintiff voluntarily assumed the risk of injury.

https://aucc.sirsidynix.net.au//Judgments/VSC/2022/T0057.pdf

[1] Archer v Garcia [2022] VSC 57, 269-270.