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.

Background

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.

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