Lynch was found guilty of "careless, improper, incompetent or foul riding" under the Australian Rules of Racing on the basis that Lynch's riding of Darcey into Decoree was "abrupt", and that decision was upheld on appeal.
Singh sued Lynch seeking damages with respect to his injuries. At trial,1 Singh was unsuccessful. Fagan J held that:
The Court held unanimously that the construction of the definitions of "recreational activity" and "dangerous recreational activity" in Goode were correct, so that professional sport, including horse racing, is a "recreational activity" for the purposes of section 5K.5 It is improper to read down the statutory definition of "recreational activity" by reference to the ordinary meaning of the word "recreational".6
The majority (Basten, Leeming and Payne JJA) held that it was, and followed Leeming JA's recent judgment in Menz v Wagga Wagga Show Society Inc.7 In making this finding, they focused on the characterisation of the obvious risk. Critically, Basten JA held:
"A prospective assessment of the obviousness of a risk should not reflect fine distinctions differentiating aspects of unsafe riding. It is clear from a consideration of the Rules of Racing that breaches are likely to be common in circumstances where jockeys are subject to obligations to ride competitively throughout and to maximise the opportunities for their horse, whilst not riding carelessly or improperly."In doing so, Basten JA noted that the characterisation of the obvious risk adopted by the trial judge may have been too broad, but that the alternative characterisation contended for at trial by Singh was apt, and, in any event, still constituted an obvious risk.8 As a consequence, riding that is reckless or deliberately in breach of the rules is still an obvious risk of professional horse racing.
In their dissenting judgment, McCallum JA and Simpson AJA also followed the propositions Leeming JA identified in Menz for the purpose of identification of the risk of harm.9 However, they held that consideration should be given "to the mechanism by which the relevant injury was caused", which draws attention to the manner of Lynch's riding.10 There are a wide range of reasons why a horse can be caused to stumble in a race, which involve varying degrees of obviousness.
Their Honours felt that the purpose of section 5L of the CLA was not to excuse the conduct of individuals that involves a risk of harm that goes beyond what is reasonably anticipated as part of the relevant activity. Accordingly, and noting that the majority agreed that Lynch's conduct was reckless and, perhaps, grossly negligent, they held that Lynch's conduct was not obvious so as to give rise to a defence under section 5L.11
As a consequence, Singh's appeal was dismissed.
However, the application of the "dangerous recreational activity" to professional sport likely only applies in New South Wales and Western Australia: in Queensland the relevant statutory definition was always limited to activities "engaged in for enjoyment, relaxation or leisure";13 and in October 2019 Tasmania amended its legislative definition of "recreational activity" to be consistent with Queensland.14 That amendment was made in light of the decision in Goode v Angland, which effectively overturned the earlier Supreme Court of Tasmania decision of Dodge v Snell, and the Tasmanian government's view that this is consistent with the intent of the Ipp Review of the Law of Negligence.
Accordingly, while dangerous recreational activity defences may provide some comfort for insurers of professional sports in New South Wales and Western Australia, it is unlikely to have much importance in the context of professional sports in the rest of the Commonwealth.
Secondly, the majority has further refined the propositions espoused by Leeming JA in Menz by stating that fine distinctions in conduct should not bear upon an assessment of the obviousness of a risk. This allowed the majority to find that deliberate conduct outside of the rules of racing is an obvious risk of racing. However, the dissent expressed by McCallum JA and Simpson AJA means that the characterisation of an obvious risk will continue to be a significant issue in future cases, and will always turn on the facts of the relevant case.
Finally, and given both the Court's criticism of Lynch's conduct, and the dissent expressed by McCallum JA and Simpson AJA as to whether Lynch's conduct was an obvious risk, there is a strong prospect of Singh applying for special leave to the High Court of Australia. We will wait with interest.
1 Singh v Lynch  NSWSC 1403.
2  NSWSC 1403 at .
3 The "risk that another rider would deliberately ride [his] horse so as to cause reckless or deliberate contact with an adjoining horse, in circumstances where [the first] horse was “boxed” or “pocketed”, in a manner that was plainly contrary to the rules of racing"):  NSWSC 1403 at .
4  NSWCA 311.
5  NSWCA 152 at  per Basten JA,  per Leeming JA,  per Payne JA and  per McCallum JA and Simpson AJA.
6  NSWCA 152 at  per Basten JA,  to  per Leeming JA,  per Payne JA and  to  per McCallum JA and Simpson AJA.
7  NSWCA 65.
8  NSWCA 152 at .
9 At .
10 At .
11 At .
12 At  per Basten JA,  per Leeming JA,  per Payne JA and  per McCallum JA and Simpson AJA.
13 See Civil Liability Act 2003 (Qld) section 18.
14 See Civil Liability Act 2002 (Tas) section 19 (as amended).