S Campbell J
110 I bear in mind that it is necessary to consider the essential requirements for a finding of breach established by s.5B(1) prospectively, as though the plaintiff’s accident had not occurred. It would be erroneous in a fundamental way to employ the benefit of hindsight. Moreover, the standard of care is the standard of a reasonable person in the position of the defendant: Imbree v McNeilly  HCA 40; 236 CLR 510. 111 In the present case the standard of care must be formulated by reference to the attributes of a reasonable recreational boat driver engaged in wakeskating. The usual knowledge of spinal specialists or even biomechanical engineers cannot set this standard: Dovuro Pty Ltd v Wilkins  HCA 51; 215 CLR 317 at 369  per Hayne and Callinan JJ. It may also be debatable whether the expertise of a professional like Mr. Ellison is attributable to the reasonable recreational participant. –
124 In Fallas v Mourlas  NSWCA 32; 65 NSWLR 418 at  Basten JA said:
…s.5L assumes there would otherwise be liability for negligence, and provides an immunity. The provision differs from the general law principle of voluntary assumption of risk because it does not require that the plaintiff had knowledge and appreciation of the riskwhich was accepted [citations omitted].
His Honour also held it was for the defendant to establish the elements of the immunity from liability: “accordingly, the principle that he or she who ‘substantially affirms an issue must prove it’ operates (citation omitted)” Fallas at 439 . There were some differences amongst the Judges in Fallas, but all agreed with the reasons of Basten JA about where the onus lies. See also Lormine Pty Ltd v Xuereb  NSWCA 200 at .
125 In Xuereb, Mason P pointed out that the question of whether a defence under s5L has been established must be “determined objectively and prospectively”. The starting point must be determining the nature of the activity actually engaged in by the plaintiff, especially where, as here, it is of an ad hoc, as opposed to organised, type: Fallas at 426  per Ipp JA; 432  per Tobias JA;  –  per Basten JA. There is no doubt that the activity of wakeskating engaged in by the plaintiff was a recreational activity, being a sport as well as an activity engaged in for enjoyment and leisure, if not relaxation. The central and primary question, however, is whether it is a dangerous recreational activity. To my mind that central question cannot be considered without first determining the scope of the recreational activity at the appropriate level of specifity required by the passages from Fallas I have referred to.
127 …As the question of whether an activity is a dangerous recreational activity must be assessed objectively and prospectively the inquiry is necessarily fact-sensitive. I accept, however, that a conclusion one way or another necessarily involves mixed questions of fact and law and for the reasons given by Gummow J in Dovuro at 339  to 342 , it will be pointless to closely cross-examine a plaintiff about his perception or understanding of the question. Subjectively most people do not actually court danger even if a degree of risk adds to the exhilaration of a sport. For this reason, if asked, most would deny that recreations engaged in by them are dangerous.
128 But as the determination of the question depends upon the consideration of all relevant circumstances including matters personal or subjective to the plaintiff such as competence, age and sobriety, it may be expected that the cross-examination will seek to elicit from the plaintiff relevant evidence tending to demonstrate dangerousness, and where appropriate challenge him or her about specific risks and the extent to which they may have been known or otherwise apparent. In the present case a purpose of the cross-examination of the plaintiff, consistently no doubt with the cross-examiner’s instructions, was to pin the plaintiff down about the place where the activity was to be undertaken by restricting it to the channel. And it was not put to him that such an activity in that place involved any risk, significant or otherwise. It was certainly not suggested that the parties always intended to branch out into Chindarah Bay, west of the marker.
129 In Fallas, at 424  Ipp JA observed:
Factors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm (and the converse may be the case).
130 In Falvo v Australian Oztag Sports Association  NSWSC 17 at  –  his Honour pointed out that in the definition of dangerous recreational activity “significant” is to be construed as bearing not only on “risk” but also on the phrase “physical harm”. His Honour said that weight had to be given to the word “dangerous” itself.
131 The approach of Basten JA was to treat “significant” as qualifying the balance of the expression “risk of physical harm”, clearly a composite idea (Fallas 440 ). The third member of that Court, Tobias JA at 432 –  agreed with aspects of the analysis of each of Ipp JA and Basten JA, however he preferred to approach “significant risk” as “one which has a real chance of materialising”. His Honour also said:
… in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the [plaintiff] but also the circumstances which provide the context in which that conduct occurs.
132All of these considerations were summed up pithily by Mason P in Xuereb, and I will repeat what his Honour said at :
The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself.
133At least in the context of the commercial supply of recreational services, Mason P thought it relevant to consider how the defendant represents the activities it offers to its potential consumers. Similarly, in Echin v. Southern Tablelands Gliding Club  NSWSC 516 at  Davies JA said:
Whilst the determination of whether gliding is a dangerous recreational activity must be judged objectively, such a determination may be informed by views of persons with some knowledge of the sport.
David Cormack – Brisbane Barrister.