Australia: NSW Supreme Court Of Appeal Addresses If ‘Recreational Activity' Includes Professional Horseracing

Last Updated: 12 December 2017
Article by Lucinda Lyons and Peter Miller

The NSW Supreme Court of Appeal has addressed Sections 5K and 5L of the Civil Liability Act 2002 (CLA) and whether the defence concerning dangerous recreational activities applies to professional sports. This update takes a close look at the recent NSW Supreme Court of Appeal decision of Goode v Angland and its impact on professional sporting organisations and their insurers. The decision now provides a defence to sportspersons and their organisations when participants suffer injury whilst engaging in dangerous recreational activities, whether they be amateur or professional.


The dispute arose out of a professional horserace on 29 June 2009 at the Queanbeyan Race Course in which the plaintiff (Mr Goode) fell and suffered catastrophic injuries as a consequence of alleged negligent riding by the defendant (Mr Angland).

Mr Goode claimed that his injuries were caused by Mr Angland's negligence or breach of duty by riding in such a manner as to cause interference to Mr Goode and his mount, i.e. riding in breach of the 'two length rule'.

Clyde & Co were instructed to act for Mr Angland and the dispute at first instance proceeded before Harrison J of the NSW Supreme Court. Evidence was taken on commission at the Royal Courts of Justice in London (Mr Goode now resides in the UK), before returning to the NSW Supreme Court in Sydney. The case ran for approximately four weeks.

The Supreme Court Decision

Harrison J found in favour of Mr Angland on both primary liability and the Section 5L defence.

In relation to primary liability, Harrison J rejected Mr Goode's submission that Mr Angland negligently rode his horse in breach of the 'two length rule' and instead found that Mr Goode's mount was over racing immediately before the fall, which caused him to clip heels with Mr Angland's mount and fall.

Harrison J found that Mr Angland was not negligent as alleged or at all and that Mr Angland did not breach his duty to Mr Goode.

In relation to the argument concerning the defence pursuant to Section 5L of the CLA, Harrison J made the following findings:

"Section 5L of the CLA is in the following terms:

5L No liability for harm suffered from obvious risks of dangerous recreational activities

  1. A person ('the defendant') is not liable in negligence for harm suffered by another person ('the plaintiff') as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
  2. This section applies whether or not the plaintiff was aware of the risk."

Both the risk that a rider might fall from a horse and the risk that serious injury might be caused by the fall are 'obvious risks' of riding a horse in almost any situation.

Neither party sought to argue and it was accepted that horse riding in general and professional horseracing in particular is dangerous and the focus of the Section 5L defence was directed to the concept of what is involved in the concept of a recreational activity.

In Dodge v Snell [2011] TASSC 19 the Court concluded that "recreational activity" did not include professional sports, notwithstanding that the definition of recreational activity expressly includes "any sport", because it was assumed that the legislature could not have intended to deprive employees of rights to sue their employers.

Contrary to the Dodge v Snell decision, Mr Angland contended that it was difficult to accept that the legislature intended to abrogate all rights for non-professional participants in sports involving a significant risk of physical harm but to maintain full common law rights for employees who, like Mr Goode, have the protection of workers compensation rights and private disability insurance.

Section 5K of the CLA defines "dangerous recreational activity" as a recreational activity that involves a significant risk of physical harm, and defines "recreational activity" as follows:

"'recreational activity' includes:

  1. Any sport (whether or not the sport is an organised activity), and
  2. Any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
  3. Any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."

It was Mr Angland's short but principal proposition that horseracing is a sport and the definition of recreational activity includes any sport. No distinction is drawn between a professional sport and any other.

On the other hand, Mr Goode contended that a professional activity, sporting or otherwise, cannot be considered to be something engaged in for enjoyment, relaxation or leisure.

Harrison J found that once it is accepted that horseracing is a sport, then Section 5K(a) of the CLA seems to be unanswerable. That is, the definition of recreational activity in a way that includes "any sport" leaves no room for an argument that enlivens the distinction between sport that is undertaken or pursued for enjoyment, relaxation or leisure and sport that is undertaken or pursued as a profession or occupation.

Harrison J then concluded that Mr Goode suffered harm as a result of the materialisation of an obvious risk of a dangerous recreational activity so that Section 5L of the CLA operates to exclude Mr Angland's liability.

Court of Appeal Decision

Leeming JA wrote the leading judgment addressing Sections 5K and 5L, with which Beazley P and Meagher JA agreed, and found that Section 5L is dispositive of the appeal.

In relation to the definition of a "recreation activity" found in Section 5K, Leeming JA agreed with Harrison J's interpretation that the words "any sport" are apt to preclude a distinction between sports engaged in for recreational purposes and professional sports. Further, the words "(whether or not the sport is an organised activity)" are words of generality, directed to fending off any implication that only a subclass of organised sports fall within the words "any sport".

By way of example, Leeming JA referred to marathon running, motorbike racing and rugby as sports in which professionals, semi-professionals and amateurs compete simultaneously and opined that it would be arbitrary in such a case if a player could be liable for injury negligently inflicted upon a professional but not upon the amateur.

Leeming JA agreed with Harrison J's dismissal of the Dodge v Snell decision and consistent with Harrison J's construction, Leeming JA found there was no distinction to be drawn between sports participated in for recreational purposes as opposed to professional sports.

Leeming JA considered that Harrison J was correct to conclude that Section 5L applied. That is, horseracing is a sport which engages the first limb of the definition of "recreational activity" in Section 5K and it was common ground that if that were so, then Sections 5K and 5L were engaged.

What is the impact of this case?

This is an important decision for sporting organisations, including but not limited to the Australian Jockey Association, National Rugby League, Australian Rugby Union, Australian Football League and Football Federation Australia, and their insurers as it now provides a defence to sportspersons and their organisations when participants suffer injury whilst engaging in dangerous recreational activities, whether they be amateur or professional. This is particularly relevant in the current landscape of concussion claims arising from professional sports.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions