It seems to often be summer when we hear of accidents involving bikes, boats, jet skis, water-skis, hiking and swimming.
Sometimes the summer weather conditions can be a cause of an injury but often it is the people involved in the activities who encounter someone doing something wrong (and as we say, doing something negligently).
Over the years I have seen summer cases involving drunk jet-ski drivers, inexperienced water-skiers and hikers lost in caves. Just two weeks ago on a beautiful warm morning in Melbourne, a driver deliberately hit cyclists just up the road from my own cycling bunch.
When it comes to extreme or high intensity sports, we know that people often wonder where personal responsibility ends, and third-party negligence begins. Those who are not active participants in summer sports often assume that injuries are attributable to the individual. It has been commented to me by those who have been on the cyclist-heavy Beach Road “well, they choose to ride fast in a bunch just in Lycra, so injury is inevitable.”
But the law does recognise when someone has entirely assumed the risk of injury and they cannot hold another person responsible. This is called the doctrine of volenti non fit injuria or voluntary assumption of risk.
An interesting example of this doctrine being applied by a Victorian court is the case of Archer v Garcia [2022].
Mr Archer (the Plaintiff) was a freestyle motocross rider (the fact I have been involved in several cases for motocross riders tells me that I will not be encouraging my children to take up this sport!) who was performing at a monster truck and freestyle motocross show in regional Victoria.
Mr Archer was injured when he missed the ramp onto which he was meant to land, suffering a fractured cervical spine, crushed larynx and injured ankles. He brought a claim against the promoter and manager of the show – Mr Garcia (the Defendant).
Whilst the Court found that Mr Garcia did owe Mr Archer a duty of care (as the occupier, organiser and promoter of the event), the nature of Mr Archer’s role meant that he voluntarily assumed the risk of injury.
So, what factors meant that Mr Archer had accepted all the risks?
- Mr Archer’s role was to do jumps and tricks using ramps which were positioned 75 feet apart but later moved to 55 feet apart for other performers;
- Mr Archer and another performer then repositioned the ramps and intended them to be 75 feet apart;
- Mr Archer did not measure the distance;
- Mr Garcia was warned that the ramps were too close together by another performer (a stunt clown!);
- Mr Garcia ignored the warning;
- The distance was less than 75 feet and Mr Archer overshot the ramp.
- Putting to one side the Court’s discussion about duties owed to independent contractors, once Mr Garcia had ensured that Mr Archer could be actively involved and communicated with regarding the set up; had permitted him to set up the ramps for his own jump; and was then warned about the unsafe distance, the Court found that he voluntarily assumed the risk of injury by ignoring the warning given to him.
Cases involving this defence are rare and sometimes warnings are not enough for a duty of care to be discharged. Archer v Garcia provides an interesting reminder that experienced individuals doing a sport that they are expert in, and whom have the capacity to make decisions around their safety, may very well end up injured and uncompensated (with no one else to hold responsible).
To discuss this case, or for more information about making an injury claim, contact Brave Legal on 03 9070 9816.