Dixon v Apostolic Church Australia Ltd [2018] WASCA was an appeal from a judgment of the District Court of Western Australia that had found the Apostolic Church liable in negligence to Dixon who sustained injuries when she struck a tree whilst participating in a go karting event organised by the Church.  Dixon was a volunteer taking photographs and video footage at a conference organised by the Church.  The Church had established a temporary go kart course in the car park of the premises where the conference was held.  Experienced go kart operators had been engaged to set up the course and run the activity.  A combination of shipping rope, witches hats, bollards and temporary traffic barriers were employed to delineate the temporary circuit.  Yet the barrier were not continuous and at some parts of the track there was nothing to stop a go kart hitting objects outside the track in the event that a driver lost control and veered off the track.

Dixon had been provided with basic instruction in regard to the operation of the go kart.  Dixon had a car licence for an automatic car, but had never driven a go kart.  The go kart had a brake pedal on the left and an accelerator on the right, separated by a structure in the foot well.   The Court of Appeal found that it would be difficult for an operator to move their feet across from one pedal to the other.

Dixon had a number of goes around the circuit and generally did not have difficulties controlling the kart.  At the northern corner of the track Dixon lost traction and started to spin.  As the go kart came out of the slide and pointed to the outer perimeter of the track and while still moving Dixon instinctively slammed her right foot down to touch the brake as she would on a car, but accidentally hit the accelerator, causing the go Kart to run into a tree that was outside the track.

Having been found negligent at first instance, the Church appealed on a number of grounds including that the trial judge had erred in finding that the Church had breached its duty of care by failing to install appropriate barriers specifically a multi tyre barrier, by failing to give sufficient warning about left foot braking and by not carrying out a risk assessment of this activity when a proper assessment would have led to the event not being held.

Expert evidence was led by both Dixon and the Church in regard to the conduct of the go kart activity including the configuration of the circuit.  Whilst Dixon had known that the brake pedal was on the left side of the vehicle and the accelerator on the right and she had been given instruction in regard to the use of the go kart the trial judge had found that instruction was inadequate.  In essence, this was a complaint that the Church had not taken reasonable care to provide instructions to allow for driver error.  The Court of Appeal found that the instructions to Dixon in regard to the use of the left foot to brake and right foot to accelerate were adequate in the circumstances and further it was not open to the trial judge to infer that if additional instruction of the kind she had described was given, the accident would have been avoided.

The Court of Appeal also rejected the trial Judge’s finding that the Church had been negligent in not installed a specific tyre barrier commonly used on race tracks which was one tyre high and three metres long. It found that the evidence did not establish as a whole that a reasonable person in the Church’s position would have responded by installing a barrier of this kind, and that the other barriers utilised were appropriate.

However, the Court of Appeal found that the Church had been negligent because, if it had conducted a proper risk assessment, it would have reached the conclusion that it should not proceed with the go karting activity.  A risk assessment had been undertaken by the providers of the go karting activity, but not in writing.  The Court of Appeal found this assessment fell short of what a reasonable person in the position of the Church should have undertaken and had it done so they would have recognised that unless the appropriate perimeter barriers were installed a novice go kart driver, such as Dixon was exposed to what was a significant risk of injury.  The Church’s risk assessment did not recognise this risk or adequately consider what steps should be taken in light of the risk.

Finally, the Court disagreed with the Church’s submission that the trial Judge had erred in not discounting Dixon’s claim for her own contributory negligence, because she had wrongly placed her foot on the accelerator rather than the brake.  It said that when assessing Dixon’s contributory negligence in regard to her driving, the circumstances of accident called for a split second decision made in circumstances of stress.  Drivers regularly make mistakes in operating the brakes of a vehicle in an emergency and under stress.  A reasonable person in the position of Dixon would not have been expected to know of the risk or the consequences of placing her foot on an accelerator, rather than a brake in these circumstances. So, Dixon had not failed to exercise reasonable care for her own safety.

The providers of recreational activities, whether for free or reward must carefully assess the risk of harm an activity may present to participants and take reasonable steps to address and eliminate that risk. If the risk is not insignificant and cannot be reduced to a reasonable degree or eliminated the activity should probably not be undertaken, unless comprehensive risk warnings are given to participants. Ensuring that any risk assessment is carried out by those with sufficient training and experience in the activity is also paramount.