In brief - in Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, the New South Wales Court of Appeal considered 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) (CLA), however only a 3-2 majority considered that the appellant's injuries arose from the materialisation of an obvious risk (being collided with by a careless competing rider) of professional horse racing.

The full Court of the NSW Court of Appeal comprised Basten, JA, Leeming JA, Payne JA, McCallum JA and Simpson AJA, and was required because the Court was asked to reconsider one of its earlier decision being Goode v Angland [2017] NSWCA 311 which held that professional horse racing was a dangerous recreational activity.

The grounds of appeal were as follows:

  1. Whether the finding that professional horse racing is a dangerous recreational activity is correct;
  2. Whether the plaintiff's injuries resulted from the materialisation of an obvious risk which occurred during the course of a recreational activity; and
  3. Whether the other rider (Lynch) who collided with the plaintiff breached a duty of care owed to other participants in the race.

Dangerous recreational activity

The Court held unanimously that a professional sport, including horse racing, is a recreational activity for the purposes of section 5K of the CLA.

Materialisation of an obvious risk

The plaintiff argued that Lynch's careless riding was not an obvious risk.

The three Judge majority held that it was. In making this finding, they focused on the characterisation of the obvious risk. It was held that riding that is reckless or deliberately in breach of the rules, is still an obvious risk of professional horse racing.

In their dissenting, minority judgment, their Honours Simpson AJA and McCallum JA indicated that the purpose of section 5L of the CLA was not to excuse the conduct of individuals that incites a risk of harm beyond what is reasonably anticipated as part of the recreational activity. Noting that the majority agreed that Lynch's conduct was reckless, the two judge minority held that Lynch's conduct was not obvious so as to give rise to a defence under section 5L.

Breach of duty

The Court was unanimous in holding that Lynch's conduct was reckless, potentially grossly negligent, and in breach of the duty he owed to other riders participating in the race. However, the majority held that section 5L of the CLA provided a full defence.

The plaintiff's appeal was dismissed.

Implications

The New South Wales Court of Appeal has had the final word to the effect that a professional sport constitutes a "recreational activity" within the definition in section 5K of the CLA.

This interpretation of the CLA and its import is likely only to extend sports in NSW and WA, as QLD and TAS legislation limits recreational activities to those "engaged in for enjoyment, relaxation or leisure". The defence therefore likely does not extend to professional sports outside of NSW and WA.

Additionally, the dissenting opinions in relation to the characterisation of an obvious risk suggest that it will continue to be contentious in future matters. Consideration of what constitutes an obvious risk should be scrutinised on a case by case basis.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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