Barry Nilsson insurance law solicitor Andrew Clarke discusses the recent decision in Apostolic Church Australia Ltd v Dixon [2018] WASCA 146, where a church was found to be negligent because it failed to conduct a proper risk assessment of a go-kart event. This case highlights the importance of undertaking a thorough risk assessment, Andrew writes.
A church volunteer was injured in a go-karting accident when she accelerated into a tree after losing control of the go-kart. The organiser of the event, a local church, was found to be negligent primarily for failing to conduct a proper risk assessment that would have caused a reasonable person in the church’s position to cancel the event.
On 25 August 2012, the defendant church held a conference for members of the congregation. A go-karting activity in the car park of the church’s premises was organised in which the plaintiff, a church volunteer, participated.
During a lap, the plaintiff lost control of the go-kart while heading towards a tree beyond the track. The plaintiff instinctively used her right foot to brake, which instead caused the go-kart to accelerate (the go-kart’s brake is operated with the left foot unlike in a car). The plaintiff collided with the tree, sustaining a serious injury to her right leg resulting in it being amputated below the knee.
The trial judge found in favour of the plaintiff noting that the defendant had failed to conduct a proper risk assessment, failed to provide proper instructions and failed to place barriers around the outside perimeter of the track. Her Honour also found that a reasonable person in the plaintiff’s position might make the same mistake and therefore made no allowance for contributory negligence.
In essence, there were three grounds of appeal:
1. The trial judge should have found that the church took all the precautions that a reasonable person in its position would have taken in the circumstances.
2. The trial judge should have found that there was no or insufficient evidence that any fault of the church was a necessary condition of the plaintiff’s injury.
3. The trial judge erred by not finding any contributory negligence.
Grounds 1 and 2 were allowed in part, and ground 3 was dismissed. Although the Court of Appeal overturned that trial judge’s findings that the church had not given sufficient instruction regarding left-foot braking and should have erected a tyre wall, the Court still found the church negligent – particularly by failing to conduct a reasonable risk assessment that (in the Court of Appeal’s view) would have caused the church to reconsider holding the event at all.
This case highlights the importance of undertaking a thorough risk assessment. This is particularly so where a party allows members of the public to participate in an activity that is out of the ordinary and/or presents some innate risk of injury. In performing a risk assessment, one must critically analyse the potential risks and take reasonable steps to ensure any not-insignificant risks of injury are either minimised or eliminated.
Read the case here: Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
Solicitor Andrew Clarke works in the Barry Nilsson Insurance & Health team and is based in the Perth office. Since Andrew’s admission in 2016, he has practiced solely in insurance law, with a focus on: public liability, professional indemnity and health. Andrew works closely with clients, which include health care providers, statutory government bodies and professionals, to become intimately familiar with the nature of their business. Andrew has appeared in the Coroner’s Court, District Court and Supreme Court of Western Australia as well as the Federal Court of Australia and acted in disputes in various other jurisdictions. Andrew has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Commercial and Resources Law. He is a member of the Law Society of WA. Andrew says: “Having worked in large national and international firms, the prospect of joining a highly specialised insurance practice was very appealing to me. It’s refreshing to work in an environment where every system is optimised for our type of work. I am also personally looking forward to building on the strengths of our eastern states counterparts to grow the health practice in Perth. It’s incredibly rewarding to be able to resolve a complex factual or legal issue and deliver a good outcome for the client due to the benefit of specialised knowledge of the industry.” Contact Andrew at andrew.clarke@bnlaw.com.au
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