Professional sports and the dangerous recreational activities defence: what conduct amounts to an obvious risk?

The New South Wales Court of Appeal has again been asked to consider whether the dangerous recreational activity defence applies in the context of a professional horse race. A five judge Court has unanimously held that professional horse racing is a recreational activity within the meaning of section 5K of the Civil Liability Act 2002 (NSW), but only a 3-2 majority considered that the appellant's injuries arose from the materialisation of an obvious risk of professional horse racing.

 

Author(s): Richard Johnson and Peter Miller
Judgment date: 23 July 2020
Citation: Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152
Jurisdiction: New South Wales Court of Appeal

Principles


  • Professional sports are recreational activities for the purpose of the statutory definition in section 5K of the Civil Liability Act 2002 (NSW) (CLA).
  • The characterisation of an obvious risk for the purpose of section 5L of the CLA should not reflect fine distinctions of the activity or pursuit.
  • Reckless or deliberate wrongdoing can be an obvious risk of a dangerous recreational activity.
  • The dissenting judgment may provide scope for the appellant to seek special leave to the High Court.

Background

Hari Singh was a professional jockey, who suffered head injuries after an incident on 14 August 2012 while riding in Race 7 of a meeting at Tamworth, when his horse, Blue Onyx, fell. The fall was caused when another jockey, Glenn Lynch, rode his horse, Darcey, so as to push another horse, Decoree, which was ridden by Gregory Ryan and was alongside Darcey, into the path of Blue Onyx.

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:


  • professional horse racing is a "dangerous recreational activity" within the meaning of section 5K of the CLA;
  • section 5L of the CLA, relating to the materialisation of an obvious risk of a dangerous recreational activity, applied in this case;
  • the risk that materialised in this case was "the risk of [Blue Onxy] falling, bringing [Singh] to the ground and causing him injury";2
  • a more specific risk that Singh contended for3 was still an obvious risk given careless riding is a common occurrence in horseracing; and
  • in any event, Lynch did not breach his common law duty of care owed to Singh by making the decision he did in the pressure of the race, as his riding was careless and not reckless.

Decision

Singh appealed – his grounds of appeal centred on the following issues:

  • whether the finding in Goode v Angland4 that professional horse racing is a dangerous recreational activity is correct;
  • whether Singh's injury was the result of a materialisation of an obvious risk which occurred in the course of a dangerous recreational activity; and
  • whether Lynch breached the duty of care owed to other participants in the race.

Was Goode v Angland decided correctly?

Given the challenge to Goode v Angland, a five judge Court heard Singh's appeal.

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

Materialisation of an obvious risk

In relation to this issue, Singh argued that Lynch's riding of Darcey was not an obvious risk.

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

Breach of duty

Finally, the Court was unanimous in holding that the Lynch's conduct was reckless and, potentially, grossly negligent, and on that basis, he breached the duty he owed to other riders participating in the race.12 However, the majority held that section 5L of the CLA was engaged to provide a full defence.

As a consequence, Singh's appeal was dismissed.

Why this case is important

Firstly, the New South Wales Court of Appeal has put to bed the issue of whether professional sport constitutes a "recreational activity" with the definition in section 5K of the CLA. It is likely that Courts in Western Australia will follow this decision, noting the definition of "recreational activity" in Western Australia is identical.

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 [2019] NSWSC 1403.
2 [2019] NSWSC 1403 at [72].
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"): [2019] NSWSC 1403 at [73].
4 [2017] NSWCA 311.
5 [2020] NSWCA 152 at [29] per Basten JA, [141] per Leeming JA, [142] per Payne JA and [189] per McCallum JA and Simpson AJA.
6 [2020] NSWCA 152 at [34] per Basten JA, [98] to [131] per Leeming JA, [142] per Payne JA and [191] to [192] per McCallum JA and Simpson AJA.
7 [2020] NSWCA 65.
8 [2020] NSWCA 152 at [68].
9 At [195].
10 At [203].
11 At [228].
12 At [77] per Basten JA, [141] per Leeming JA, [156] per Payne JA and [236] 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).

Contributors

Peter Miller Principal