Australia: Work or play – are professional sports recreational activities?

Some people are lucky enough to make a living by engaging in professional sports. Does the law treat amateurs who suffer injuries differently from those who pursue sports as a profession? Two conflicting decisions by superior courts in New South Wales and Tasmania have thrown the law on this point into disarray.

The defence

Under the civil liability legislation in most parts of Australia, defendants are able to establish a defence to negligence where they can prove that the harm suffered is the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm. Although legislation in the various States is not uniform, there are substantial similarities across most jurisdictions.

Whatever the legislative intent, the courts have tended to adopt a reasonably restrictive interpretation of the defence. Disputes often turn on their own facts to determine what is an obvious risk of a dangerous recreational activity or, what in fact is a dangerous recreational activity itself. Some states expressly include sport in the definition of dangerous recreational activity. However, is it intended that this cover sport in all its forms – from the amateur participant through to those engaging at elite level?

Dodge v Snell [2011] TASSC 19 concerned a plaintiff suffering injuries while competing in a professional horse race. The Court found that "recreational activities" could not include professional sports despite the definition of recreational activity expressly including "any sport". The basis of the decision was that the legislature could not have intended to deprive employees of the rights to sue their employers.

In Goode v Angland [2016] NSWSC 1014, the New South Wales Supreme Court considered a professional jockey who suffered catastrophic injuries after his horse's front hooves clipped those of the horse in front. The Court concluded that the defence was enlivened by any sport and drew no relevant distinction between "recreational activities" engaged in for money and those pursued for enjoyment. The Court concluded that the phrases "recreational activity" and "any sport" in the legislation should be given their natural and ordinary meaning in accordance with the High Court's approach in Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28.

The logic adopted by the Court in Goode appears sound. Why would the legislation preserve rights for employed sports people, but remove those same rights for those engaging in similar activity, albeit on an unpaid, or recreational, basis.

On the other hand, would the result be the same in other jurisdictions? In Queensland, "sport" is not expressly included in the definition of dangerous recreational activity – which is limited to "an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person". When a person engages in a sport as part of their profession, will it ever be considered "an activity engaged in for enjoyment, relaxation or leisure"? Perhaps Queensland might find itself more closely aligned with the reasoning in the Tasmanian decision of Dodge, rather than Goode.

The position in the ACT, South Australia, and the Northern Territory could be different again, as these jurisdictions have not enacted legislation providing a defence for dangerous recreational activities at all, and continue to rely upon the common law. The definition of "recreational activity" in Victoria and Western Australia mirrors the New South Wales' definition, which suggests Goode might be highly persuasive authority in these jurisdictions.

The decision in Goode will be welcomed by sporting organisations faced with claims by professional participants. It remains to be seen, however, which jurisdictions will distinguish recreational activity by sporting work or play.

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