Tort; Negligence; breach of the duty of care; plaintiff 's consent to risk of harm.
Facts: The defendant was the driver of a boat being used to tow three waterskiers, one of whom was the plaintiff. At one point, while the plaintiff was performing a "cross-over" manoeuvre, he crashed into a stationary boat which he did not see because of water spray in his eyes. The plaintiff claimed that the accident was the result of the defendant driving too close to the stationary boat without giving the skiers any warning.
Issue: Of what relevance are the rules of a sport or game being played when deciding the extent of the duty of care owed by a defendant?
Decision: The rules of a sport or game are only one factor in determining the existence of a duty of care, or a breach of a duty of care.
Reason: Barwick CJ said (at [6]):
"Whether or not such a duty [of care] 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."