Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383 (18 October 1967)

HIGH COURT OF AUSTRALIA

ROOTES v. SHELTON [1967] HCA 39; (1967) 116 CLR 383

Negligence

High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Owen(5) JJ.

CATCHWORDS

Negligence - Duty of care - Sport - Pastime - Existence of duty - Breach - Risks inherent in sport or pastime - Risks not inherent - Voluntary assumption of risk - Burden of proof of assumption.

HEARING

Sydney, 1967, August 24, 25; October 18. 18:10:1967
APPEAL from the Supreme Court of New South Wales.

DECISION

October 18.
The following written judgments were delivered: -
BARWICK C.J. The appellant, an experienced water skier, was skiing on the skiers an operation known as "crossovers", in which three skiers being towed with ropes of different lengths pass from side to side across the wake of the towing boat and across each other's paths. The appellant at the material time was the middle of the three men and thus in crossing had to pass his tow rope over the skier ahead of him and crouch under the rope of the skier behind him. (at p384)

2. The towing boat was being driven along a fairly straight and sufficiently wide stretch of river during the manoeuvre, travelling at thirty to thirty-five miles per hour. As the appellant was passing to the starboard side of the boat's wake he was temporarily blinded by spray and had need to clear his eyes before starting to turn inwards again. This may possibly have caused him to swing wider in executing his manoeuvre than otherwise he might have done. However, when he could see again he was faced with a stationary boat, as he says, about six feet away from him. He endeavoured to avoid colliding with it but was unable to do so. In the result he was severely injured. He sued the respondent who was the driver of the towing boat for failure to take due care in the control of the boat and for failure to warn him of the presence of the stationary boat. (at p384)

3. It seems that it was usual, as the appellant, the respondent and the other participants conducted their water skiing, to have an observer as well as a driver in the towing boat: it was also usual for the driver or the observer to signal the presence of any obstacle which was seen in or on the water along which the tow was being made. Although on this occasion there was another person in the towing boat as well as the driver, as I read the evidence, that person was not acting as observer nor was any signal given by the driver warning of the presence of the stationary boat of whose presence or position it was conceded the driver at material times was aware. (at p385)

4. The jury found for the plaintiff: but the Supreme Court (Court of Appeal Division) set aside the verdict on the ground that the respondent driver of the towing vehicle owed no relevant duty to the appellant, both being participants in a sport who had, by engaging in it, accepted the risks of injury which might be involved in taking part in it. (at p385)

5. I am clearly of opinion that the Supreme Court was in error in setting aside the verdict of the jury and in the reasons expressed for doing so. I find it unnecessary to canvass these reasons in detail: it is sufficient in the circumstances if I set out my own conclusion as succinctly as possible. (at p385)

6. By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connexion, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist. (at p385)

7. No doubt there are risks inherent in the nature of water skiing, which because they are inherent may be regarded as accepted by those who engage in the sport. The risk of a skier running into an obstruction which, because submerged or partially submerged or for some other reason, is unlikely to be seen by the driver or observer of the towing boat, may well be regarded as inherent in the pastime. Or that situation may be analysed by saying that that driver or observer owes no duty in respect of the unobservable obstruction. But neither the possibility that the driver may fail to avoid, if practicable, or, if not, to signal the presence of an observed or observable obstruction nor that the driver will tow the skier dangerously close to such an obstruction is, in my opinion, a risk inherent in the nature of the sport. In this connexion an observable obstruction is one which would be observed by reasonable attention by the driver and observer to their respective tasks. That there is a recognized practice amongst participants that the driver or the observer should signal the presence of an observed obstruction is no more than emphatic that the skier does not accept these possibilities as risks which he must run without recourse. There was, in my opinion, no evidence that any of the risks to which I have referred were inherent in the sport. (at p386)

8. In my opinion, the appellant was entitled to have the respondent exercise reasonable care in carrying out his part of the operation in which they were co-operating: failure to signal the presence of the stationary launch and towing the appellant dangerously close to it, particularly if it was thought that the driver ought to have realized that the appellant might well be temporarily blinded at times by the spray from the wash of the boat during his manoeuvres, could clearly be regarded as breaches of that duty. (at p386)

9. If it is said that a participant in a sport or pastime has voluntarily assumed a risk which is not inherent in that sport or pastime so as to exclude a relevant duty of care, it must rest on the party who makes that claim to establish the case in accordance with recognized principles. In the present case there was, in my opinion, no evidence whatever to support the view that the appellant voluntarily assumed any of the risks which I have described. Further, having regard to the terms of the summing up of the trial judge, the jury, by its verdict, has negatived any such assumption of risk. (at p386)

10. In my respectful opinion, the respondent plainly owed a duty of care to the appellant: it would have been surprising indeed had the jury not thought that the respondent was in breach of his duty both in failing to signal the presence of the stationary launch and in taking the appellant dangerously close to it. I would restore the jury's verdict. (at p386)

MCTIERNAN J. The appeal should, in my opinion, be allowed. I agree with the conclusions of the Chief Justice and do not desire to add anything. (at p386)

KITTO J. With the greatest respect to the learned judges who dealt with this case in the Supreme Court, I think it is a mistake to suppose that the case is concerned with "changing social needs" or with "a proposed new field of liability in negligence", or that it is to be decided by "designing" a rule. And, if I may be pardoned for saying so, to discuss the case in terms of "judicial policy" and "social expediency" is to introduce deleterious foreign matter into the waters of the common law - in which, after all, we have no more than riparian rights. (at p387)

2. I cannot think that there is anything new or mysterious about the application of the law of negligence to a sport or a game. Their kind is older by far than the common law itself. And though water skiing may be slightly faster than chariot-racing it is, like every other sport, simply an activity in which participants place themselves in a special relation or succession of relations to other participants, so that adjudication under the common law upon a claim by one participant against another for damages for negligence in respect of injuries sustained in the course of the activity requires only that the tribunal of fact apply itself to the same kind of questions of fact as arise in other cases of personal injury by negligence. It must do so, of course, under judicial guidance as to what the law has to say upon the questions whether, in the situation in which the plaintiff's injuries were caused, the defendant owed him a duty to take care not to harm him, what the extent of the duty was if a duty did exist, and what causal relation the plaintiff must prove between an act or omission by the defendant which was a breach of the duty and the plaintiff's injuries. We are here concerned mainly with the first two of these questions. They are questions to be answered by reference to the circumstances surrounding any act or omission of the respondent which the jury considered was a cause of the appellant's injuries. It was for the jury to identify that act or omission, and then to decide what were the circumstances in which it took place. (at p387)

3. It was common ground that the appellant sustained his injuries by colliding with a boat that was stationary on a river, as he was being towed along the river on skis by a boat driven by the respondent. Two other skiers were also being towed behind the respondent's boat, and they and the appellant, grasping tow-lines of unequal lengths, were performing preconcerted manoeuvres which required that each should cross and recross the wake of the respondent's boat, the appellant being behind one of his fellows and ahead of another and zigzagging in directions opposite to theirs. Each skier, of course, went outwards from the centre-line of the towing boat on each leg of his zigzag course. On the evidence, the jury might think that the appellant collided with the stationary boat by going further out than usual; but he said that he was temporarily blinded by spray (which obviously might well have been thrown up as he crossed the wake of the boat or the wake of the skier ahead of him), and it was open to the jury to accept this evidence and to reach either or both of two further conclusions, namely that the appellant did not go further out than the respondent ought reasonably to have allowed for in deciding his course, and that the respondent ought reasonably to have apprised the appellant of the presence of the stationary boat in time for him to drop his tow-line and avoid the collision. (at p388)

4. If the jury came to either of these two conclusions, there remained for them the question whether the respondent's act in laying the course of his boat so near to the stationary boat that the appellant might collide with it if he were to travel unusually far to the side, or his omission in not apprising the appellant early enough of the presence of the stationary boat, or each of those things, was a breach of a duty of care which the respondent owed to the appellant; and they needed a direction from the trial judge in some appropriate form as to the findings that would be necessary before they could properly answer that question in the affirmative. (at p388)

5. The first finding they would need to make was that in the circumstances surrounding the relevant act or omission, the respondent, if he had directed his mind to the question of the distance he should maintain between his boat and the stationary boat, or to the question whether or not he should take steps to see that the appellant was aware soon enough of the presence of the stationary boat, ought reasonably to have had the appellant in contemplation as likely to be injured if reasonable care were not taken to save him from the danger of striking the stationary boat. The jury needed to be told that if they made that finding they should take it that the respondent owed the appellant a duty to take such care for the latter's safety in relation to the stationary boat as was reasonable in the circumstances, and that accordingly the appellant's right to a verdict in his favour depended upon whether they made a second finding, namely that the respondent, by steering his boat as he did or by not giving the appellant sufficient warning of the position of the stationary boat, failed to be as careful for the appellant's safety as an ordinary man in his position would have been in the like circumstances. The trial judge in fact gave the jury a direction in this sense, and there would be no purpose in setting out these matters were it not for the importance of recognizing that they provide the elements of the appellant's case to which the crucial point in the case needs to be related. (at p388)

6. The learned members of the Supreme Court have held that on the evidence it was not open to the jury to conclude otherwise than that the appellant, by joining in the activity in which his injuries occurred, had voluntarily accepted the risk that the respondent unintentionally might omit to give him any sufficient warning of the danger from the stationary boat and might omit to keep far enough away from that boat to allow for the possibility that, being blinded by spray, he might swing out farther than usual. Their Honours considered that the risk of such omissions was an "inherent" risk of the sport, and that the acceptance of it by the skiers was effectual in law to exonerate the respondent from all duty of care of which the omissions would otherwise have been breaches. In so holding, their Honours were of course dealing not with a defence of volenti non fit injuria but with a challenge to the appellant's contention that the respondent had committed a breach of a duty of care owed to him. It may be a moot point, as Dixon J. regarded it in The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39, at p 57 , whether, in a negligence action, a plaintiff's voluntary acceptance of a risk should be considered as bearing upon the question whether the relation between the parties was such that the defendant owed him a duty of care, or to the question whether the standard of care which the defendant was under a duty to maintain towards the plaintiff was higher than that which in fact his conduct reached. But the issue on either view is whether the defendant's act or omission was a breach of a duty of care which he owed to the plaintiff; and accordingly in a case such as the present it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organized affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the "rules of the game" Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances. (at p389)

7. We are not in fact dealing in this case with an activity which had any rules in that sense. What each skier was to try to do was of course mutually understood, as was the general nature of the function to be performed by the respondent as driver of the towing boat. The skiers placed themselves to an extent at the mercy of the respondent, and if the jury had thought that the skiers really authorized him to do what he liked, reasonably or unreasonably, short of intentionally injuring any of them, no doubt the proper conclusion would have been that the respondent kept within the limits within which the appellant had agreed that he might act, and therefore that he was not guilty of any breach of duty towards the appellant. But the jury was at least entitled to take the opposite view, that when the skiers placed themselves in the position of being towed by the respondent they intended, and he must have understood them as intending, to indicate that they were trusting him to tow them with the care which was reasonable having regard to the nature of the exercise they were engaged in and the physical characteristics of the locality. (at p390)

8. It seems to me that when a judge is directing a jury as to the acceptance of risk which a plaintiff's participation in a sport has implied, it is not satisfactory for him to confine their attention to the risks "inherent" in the sport, or the risks that are "recognized" (in the sense of "perceived") in it; for not only are these expressions imprecise - they may refer, for example, to risks necessarily incurred, or reasonably to be expected, or obviously possible - but the question to be decided is regarded by the common law rather from the defendant's point of view: was the defendant's conduct which caused injury to the plaintiff reasonable in all the circumstances, including as part of the circumstances the inferences fairly to be drawn by the defendant from the plaintiff's participation in what was going on at the time. (at p390)

9. Accordingly I am of opinion that the learned judges below should have held that on the evidence as to the nature of the skiing that was being carried on at the time of the accident it was open to the jury to find, first, that the appellant did not by his participation indicate to the respondent a willingness to accept either the risk of the respondent's steering a course which was closer to the stationary boat than was reasonable in the circumstances, or the risk of his omitting to take all reasonable measures to warn the appellant of the position of the stationary boat in time for him to avoid it; secondly, that the respondent did steer a course that was closer than was reasonable or omitted to take reasonable measures to warn the appellant, or both; and, thirdly, that that act or omission or each of them was a cause of the appellant's injuries. (at p391)

10. The learned trial judge, in my opinion, sufficiently directed the jury. I would allow the appeal and restore the verdict. (at p391)

TAYLOR J. There can be no doubt that a participant in a sport or game voluntarily assumes such risk of injury as is inherent in the sport itself. His participation precludes him from asserting otherwise. But the fact, merely, that he participates can in no way lead to the conclusion, either, that other participants have no duty of care towards him, or, that he has voluntarily assumed the risk that they will act in such a way as to constitute a breach of the duty which, in the circumstances, they owe towards him. What that duty may be in any particular case, whether there has been a breach of it and whether there has been a voluntary assumption of the risk of injury from a breach of that duty are questions of fact and, if there be evidence upon which these questions may be left to a jury, they are essentially matters for their determination. I have had the opportunity of considering the reasons prepared by Owen J. and I agree substantially with what he has to say on these matters. However I wish to add some observations for myself. (at p391)

2. In the present case the learned trial judge recognized that there were certain risks inherent in the sport in which the participants, including the appellant, were engaged. He pointed out that there were obvious risks "about which the participants could not complain" and that it was for the jury to say, in effect, whether the appellant's injuries had resulted from his exposure to such a risk, or, whether they had resulted from his exposure to some other and additional risk. By way of illustration he added: "I am dealing here, by way of illustration, with only one of the heads of the plaintiff's claim. Similar considerations would have to be applied to the others. If, however, a failure to warn was tantamount to a breach of the rules of the game, rules which, although unwritten, each was entitled to expect the others to adhere to, then it will be open for the plaintiff to succeed on that ground. Whether he would succeed on it or not would depend on considerations which I will be putting before you in more detail a little later." I observe at this stage that it is, perhaps, unfortunate that his Honour used the expression "rules of the game" but it is clear enough upon reading his summing up as a whole that he did not intend to indicate that a mere breach of the rules regulating the manner in which the sport should be performed or played would give rise to a cause of action. So much is clear from what he said later: "May I suggest that you approach this by putting a reasonably careful member of this team of water skiers at the helm of Torpy. Let us call him Mr. X. Mr. X is a friend of the other skiers, he is a reasonably competent skier and he takes his turn with the other members of the group at driving the boat and Mr. X has been doing this regularly for several seasons. Mr. X could be the plaintiff or Mr. Walker or Mr. Wilton or the man we have not seen - he could be anyone of the five. Now assume that Mr. X is exercising the degree of care which this group of men voluntarily accepts as being appropriate. If he is doing that, if he is showing the degree of care which this group of five considers appropriate in this game or sport or pastime, then they cannot complain even if one of them sustains an injury because the rules of the game are not being broken. It would not matter if you as bystanders, sitting on the bank or sitting in the back seat of Torpy, took the view that hideous risks were being taken. That would not matter, provided Mr. X, the driver, was in fact exercising that degree of care which each of these men expected of the others." Then after discussing the evidence at some length he said: "Fundamentally the question you have to ask yourselves - to which the answer depends, you might think, on what I have just put - is this: would a reasonably careful driver (our Mr. X) exercising such degree of care that these men expected of each other, taking no risks other than the accepted risks of the game, have given an indication, a warning, of the whereabouts of the boat in all the circumstances? Would he have given the boat a wider berth by going closer to the other bank? That, you may think, will depend on answering the questions I have put." There was no objection taken by the respondent to the summing up and, indeed, no exception was taken to it upon the motion before the Court of Appeal. It seems to me that the issue which was substantially left to the jury was whether the appellant's injuries had resulted from a risk inherent in the sport or whether they had been caused by the respondent's conduct in unreasonably exposing him to some additional risk, that is to say, a risk to which his participation in the sport could not be said, necessarily or ordinarily, to expose a participant. This, in the circumstances of the case, was essentially a jury question and there was ample evidence upon which they could have answered it in the appellant's favour. (at p392)

3. I would allow the appeal. (at p392)

OWEN J. The appellant and the respondent were experienced water skiers and with several other enthusiasts formed a group which was accustomed to ski on the waters of the Macquarie River. The members of the group took it in turn to drive a speed launch behind which the skiers were towed and at the time when the events with which this case is concerned occurred the respondent was driving the launch at a speed of thirty to thirty-five miles per hour and the appellant and two other men, who were being towed by it, were executing a manoeuvre known as "crossing over" or "Russian Roulette". Each of the skiers held a towing line which was attached to the launch, each line being of a different length. The leading skier's line was about fifty to fifty-eight feet in length, the appellant's line was about sixty to sixty-four feet in length and that of the skier furthest from the launch was about seventy feet long. The manoeuvre known as "crossing over" is one in which the skier nearest to the launch moves to his left across the wash of the launch, the man in the centre of the line of skiers moves at the same time to his right and the man furthest from the launch moves to his left. Having gained considerable momentum, each skier then turns and moves in the opposite direction, and this manoeuvre is repeated a number of times. On one of the "crossovers" the appellant was momentarily blinded by spray thrown up by the skier closest to the launch. When he had dashed the spray from his eyes, he found himself within a few feet of another launch which was stationary and which he had not seen and, despite his endeavours to avoid it, he collided with it and was injured. He brought an action for damages against the respondent alleging that his injuries had been caused by the latter's negligence. (at p393)

2. The appellant claimed that the respondent had been negligent in two respects. He alleged that the latter, knowing of the presence of the stationary launch, had failed to draw the attention of the skiers to it and, further, that the respondent had steered a course which was too close to the stationary launch having regard to the fact that the skiers whom he was towing were doing "cross-overs". The first of these allegations was based upon the admitted fact that it was the practice amongst the group of skiers to which both parties belonged that if the man who drove the towing launch should see an obstruction in the water with which one of the skiers might collide, he would signal its presence by pointing to the obstruction and continuing to do so until he was satisfied that the skiers had seen his signal. It was conceded that the respondent had seen the stationary launch as the towing launch approached it and evidence was given upon which it could be found that he had failed to give the customary signal. The second head of negligence was based upon evidence from which it could have been inferred that the towing launch had been steered by the respondent so as to pass within forty feet or perhaps less of the stationary launch and the respondent agreed in cross-examination that, if this had occurred, it would be going "a bit too close" having regard to the fact that "crossing over" was in progress. (at p394)

3. At the close of the evidence counsel for the respondent submitted that the jury should be directed to find in favour of his client on the ground that the latter owed no duty of care to the appellant. The contention was based upon the fact that the parties were participating in a sport one of the recognized risks of which was that a skier might collide with some obstruction in the water and it was submitted that the appellant, well knowing of this risk must be taken to have voluntarily accepted it. In these circumstances, it was said, the respondent owed no duty of care to the appellant and could not be held liable even if he had neglected to warn the latter of the presence of the stationary launch or had steered a course which might result in the appellant colliding with it. The learned trial judge rejected the submission and left the case to the jury which found in favour of the appellant and awarded him damages. (at p394)

4. On appeal to the Court of Appeal the verdict was set aside and a verdict and judgment entered for the respondent, the Court holding that no duty of care was owed by the respondent to the appellant. In the course of his judgment Wallace P. said: "The learned trial judge directed the jury that they would have to decide whether the skiers (including the plaintiff) accepted the risk of failure to warn or failure to warn in time, but with respect, I do not think such an issue, conventional enough in other circumstances when the existence of a duty of care is under consideration, is acceptable here. This is because on any broad view of the material circumstances including of course the speed and the narrowness of the stream, there could be only one answer to such a question namely, of course they did. How otherwise could 'Russian Roulette' be carried on at all? " His Honour went on to say that the risks inherent in the manoeuvre of "crossing over" were obvious and that, on no view of the evidence could a "relevant duty in tort be said to have been established". His decision thus appears to have proceeded upon the basis that on the evidence the only conclusion open was that the appellant had voluntarily accepted the risk that the respondent might fail to give the customary warning of an obstruction of which he was aware and that, in these circumstances, the latter owed the former no duty of care. No doubt the risk of running into an obstruction in the water is one which is inherent in the sport of water skiing but if it is shown, as it was in the present case, that there was a practice - known to both parties - designed to avoid that risk I cannot agree that the appellant must be taken to have consented to bear the consequences that might foreseeably follow should the respondent fail to exercise due care to follow that practice. (at p395)

5. To say that the appellant voluntarily assumed the risk of colliding with an obstruction in the water is one thing. To say that the appellant voluntarily undertook the risk that the respondent would carelessly fail to warn him of the presence of such an obstruction or would fail to exercise due care in steering the launch of which he had control is a very different proposition and one for which I can find no support in the evidence. I am of opinion that in the present case the respondent owed a duty of care to the appellant and, if the former knew of the presence of the stationary launch - as was the fact - and failed to give warning of it, it was open to the jury to find that he had been guilty of a breach of that duty. Equally I have no doubt that the respondent owed the appellant a duty to take reasonable care to steer a course which would avoid the risk of a collision such as occurred and that the jury might properly find that there had been a breach of that duty. (at p395)

6. Jacobs J.A. was of opinion that in the case of a "recognized or perceived risk" involved in participating in a sporting activity, no duty of care was owed by one participant to another. The risk of collision with an object in the water was a "recognized or perceived risk" of water skiing and the respondent was, he considered, under no duty to take reasonable care to warn the appellant of the presence of such an object or to steer a course which would avoid the risk that the appellant would collide with it. (at p395)

7. The third member of the Court, Asprey J.A., said that he could not "conclude as a matter of judicial policy that in the joint performance of a sporting activity, pursued for the pleasure and not as a business, there is any legal duty of care imposed upon the participants to obey the laws, rules or practices of the sport so that the unintentional conduct of one of the players amounting to a breach of the law, rule or practice of the game . . . subjects him to an action at law for damages for negligence". His Honour considered that to hold otherwise, "would extend into unreasonable categories a legal duty of care for which there is presently no demand in our social system". And that the law did not regard "noncommercial sporting activities, intended to be played as healthy vigorous and often risky exercise, as a proper sphere into which to introduce the concept of the legal duty of care so that an unintentional infraction of the rules of the game brings about the legal liability of one player to another engaged in it". (at p396)

8. With all respect to their Honours, I cannot agree with these broad propositions. Whether in any particular case a duty of care is owed by one participant in a sport to another who is engaged in it depends upon the circumstances of that case. Prima facie the appellant in the present case was, it seems to me, entitled to have the respondent exercise reasonable care in carrying out his part of the operation and I can see nothing in the evidence upon which it could be found that the appellant had voluntarily assumed the risk that he might be injured as the result of a careless failure by the respondent to give the customary warning signal or to take the launch on a course which would avoid the risk of a collision with the stationary launch. To say that a participant in a sporting activity has voluntarily assumed the risk of injury from another participant's act or omission is to say that, with knowledge of the risk involved, he has impliedly consented to relieve that other participant of the legal consequences that would ordinarily follow should the latter, by some act or omission which no reasonable man would do or omit to do, cause injury to the former. Whether there has been such a voluntary assumption of risk is, of course, a question of fact and, if it be answered in favour of a defendant, the jury would be directed to find for the defendant since in such circumstances the latter would have owed no duty of care to the injured plaintiff. But, as Dixon J. (as he then was) pointed out in The Insurance Commissioner v. Joyce [1948] HCA 17; [1948] HCA 17; (1948) 77 CLR 39, at pp 54, 56 , the onus of establishing a voluntary assumption of risk lies on the defendant and in the present case there was, in my opinion, no evidence capable of supporting such a finding. (at p396)

9. I would allow the appeal. (at p396)

ORDER

Appeal allowed with costs. Order of the Court of Appeal discharged. In lieu thereof order that the appeal to that Court be dismissed with costs.