CLA: professional sport – obvious risk & dangerous recreational activity

Goode v Angland [2016] NSWSC 1014

The plaintiff was catastrophically injured when he was thrown from his mount during a horse race. The plaintiff claimed against the defendant, another rider in the race that he rode in such a manner to cause interference to the plaintiff’s mount and cause the fall.

The claim was governed by Civil Liability Act 2002 (NSW). Analogous provisions apply in Queensland.

Harrison J found against the plaintiff:

  1. In my opinion Mr Angland was not negligent in the respects alleged or at all. He did not breach his duty to Mr Goode. He did not ride his horse in a way that caused or contributed to Mr Goode’s fall. Specifically, to the extent, if at all, that Mr Angland’s horse came in towards the rails and closed or narrowed the gap into which Mr Goode was hopeful of improving, it was not causative of what happened to Mr Goode. The fall was caused, despite any such lateral movement of Mr Angland’s horse, by Mr Goode’s horse running uncontrolled into the rear of Mr Angland’s horse where the animals’ legs came into contact. In this respect I consider that Mr Burnett’s analysis, explained in evidence before me and referred to earlier, is an accurate encapsulation of what occurred. That is to say, Mr Burnett put the fall down to the fact that at no stage was Mr Goode in total control of his horse, but can instead be seen throughout the race trying to regain it, while continually moving forward and laterally towards Mr Angland’s horse upon the heels of which he eventually, and very unfortunately, ended up.

Of interest is the discussion on obvious risk and dangerous recreational activity:

Obvious Risk

  1. It was not contended by either party that horse riding in general or professional horseracing in particular did not each carry in varying degrees a risk of injury or even death from a fall or that such risks were not obvious. That is to my mind unsurprising. 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. If either party had sought to contend otherwise I would have rejected the contention.
  2. More fundamentally, “obvious risk” is defined in s 5F of the Civil Liability Act, which puts the issue beyond controversy: Section 5F is as follows:

5F Meaning of ‘obvious risk’

(1)    For the purposes of this Division, an ‘obvious risk’ to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2)    Obvious risks include risks that are patent or a matter of common knowledge.

(3)    A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4)    A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.”

Dangerous Recreational Activity

  1. In a related sense, neither party sought to argue that horse riding in general or professional horseracing in particular were not also dangerous. As much flows from a recognition of the magnitude of the risk of falling or being thrown from a horse, seen as a function of the likelihood of the occurrence of the risk and the magnitude of the consequences if the risk eventuated. The attention of the parties was instead directed to the concept of what is involved in the concept of a recreational activity.
  2. In Dodge v Snell[2011] TASSC 19 the Court concluded that “recreational activity” did not include professional sports. That conclusion was arrived at 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. Mr Angland contended that a similar concern was not in New South Wales deserving of an equivalent recognition. This was because the parliament of this State has demonstrated considerably less concern for the common law rights of injured workers. Mr Angland also 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. In construing the section, the general legislative purpose of the provision is relevant: Project Blue Sky Inc v Australian Broadcasting Authority[1988] HCA 28; (1988) 194 CLR 355 at [69]. To the extent that it is necessary for me to do so, I respectfully disagree with the Tasmanian decision: having regard to their ordinary meaning, the words in the equivalent New South Wales provision do not permit of such a conclusion.
  3. Section 5K of the Civil Liability Actdefines “dangerous recreational activity” as a recreational activity that involves a significant risk of physical harm. The same section defines “recreational activity” as follows:

“‘recreational activity’ includes:

(a)    any sport (whether or not the sport is an organised activity), and

(b)    any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c)    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.”

  1. It is apparent that a consideration of whether or not professional horseracing is or is not a dangerous recreational activity is not limited to a construction of that compound expression. That is at least clear, if it were not otherwise, from the fact that both “dangerous recreational activity” and “recreational activity” are separately defined in the Act.
  2. Mr Angland’s short but principal proposition is that horseracing is a sport and that the definition of recreational activity includes anysport. No distinction is drawn between a professional sport and any other.
  3. Mr Goode emphasised the concept of “enjoyment, relaxation or leisure” and relied upon what was said by Ipp JA in Belna Pty Ltd t/a Fernwood Fitness Centre Parramatta v Irwin[2009] NSWCA 46 at [13] and [15] as follows:

“[13] As regards sub-paragraph (a) of s 5K, the Oxford English Dictionary contains many definitions of ‘sport’. Perhaps the most apposite in the context of the statute is ‘participation in activities involving physical exertion and skill’. I would add to this definition the element of participation in those activities for purposes of enjoyment, relaxation or leisure, as s 5K provides. The exercise program undertaken by Ms Irwin involved participation in activities of that kind and, according to ordinary English usage, fell within the meaning of ‘sport’.

[15] In examining the three sub-paragraphs of s 5K, I express no opinion as to whether the definition of ‘recreational activity’ in the section is intended to be exhaustive.”

  1. Mr Goode also referred to Motorcycling Events Group Australia Pty Ltd v Kelly[2013] NSWCA 361. In that case Gleeson JA said this:

“[100] The respondent submitted that the activity of teaching motorcycling skills was a serious business and that such instruction was not a recreational activity. In my opinion, this submission should be rejected. The respondent was engaged in a recreational activity.

[101] First, it will be observed that the expression ‘recreational activity’ is broadly defined in inclusive terms in s 5K of the Civil Liability Act. Although in Belna Pty Ltd v Irwin [2009] NSWCA 46, Ipp JA (at [15]) (McColl JA and Handley AJA agreeing) refrained from expressing an opinion as to whether the definition is intended to be exhaustive, it is unnecessary, in the present case, to look beyond the express terms of the definition.

[102] Secondly, the emphasis in the definition in s 5K is on engaging in the relevant pursuit or activity for the purposes of enjoyment, relaxation or leisure.

[103] Thirdly, the goal of the activity is relevant in determining whether the activity is or is not a recreational activity: Belna Pty Ltd v Irwin at [14]. In that case, Ipp JA (McColl JA and Handley AJA agreeing) relied upon a questionnaire in which the plaintiff described her short-term goals in undertaking the exercise program as being to ‘enjoy life’ as a basis for finding the program fell within s 5K(b) of the definition of ‘recreational activity’.

[104] Fourthly, the respondent submitted that regard must be had to the particular activities engaged in by the plaintiff at the relevant time. This may be accepted. The respondent’s purposes in undertaking the course were conceded on appeal to be relevant…There was a finding by the primary judge (at [24]) that the respondent wanted to update his skills to become more efficient in cornering when undertaking recreational rides with his wife on weekends. The particular activity engaged in by the respondent at the relevant time was practising a cornering drill on the Eastern Creek racetrack. The fact that the drill was preceded by classroom tuition and that one of the teachers was following on the track behind the respondent does not detract from the ordinary and general description of motorcycle riding at a racetrack as being a ‘recreational activity’. The respondent had been riding motorbikes for about 42 years. His aim in undertaking the Level II course was to obtain skills to equip him for the enjoyment of leisure-time activities when riding on country roads.

[105] In my view, the respondent was clearly engaged in the activity for enjoyment or leisure within the definition of ‘recreational activity’ in s 5K(b).”

  1. There is in my view an immediate tension between those cases that emphasise the recreational element of the activity on the one hand and the anodyne and uncoloured definition of recreational activity as including any sport on the other hand. It is difficult to see how a professional activity, sporting or otherwise, can be considered to be something engaged in for enjoyment, relaxation or leisure. That is Mr Goode’s point. By the same token, it is also difficult to see how the ordinary meaning of the words “any sport” does not include professional sport. Indeed, the reference to “any sport” in s 5K(a) is unique in that it does not contain any reference to the words enjoyment, relaxation or leisure that is contained in s 5K(b) and (c). That is Mr Angland’s point.
  2. Neither of the cases to which Mr Goode has drawn my attention deals with what is or what is not a sport. Each case was concerned with the question of whether or not a particular activity was a recreational activity. For better or worse, once it is accepted that horseracing is a sport, a matter about which minds might legitimately differ, but which was never put in issue before me, s 5K(a) of the Act seems to be unanswerable. The definition of recreational activity in a way that includes “any sport” leaves no room for an argument that relevantly 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.
  3. Is there room for contending that professional horseracing is not a sport? Sport can be defined as an activity involving physical exertion and skill in which an individual or team competes against another or others for entertainment or enjoyment and/or as a job. Horseracing is sometimes described as the sport of kings. I am unaware of any definition of sport that limits it to purely recreational or leisure activities or that excludes professional sport.
  4. In my opinion, Mr Goode suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity so that s 5L of the Civil Liability Actoperates to exclude Mr Angland’s liability in this case.

 David Cormack – Brisbane Barrister & Mediator

NB: Appeal dismissed: Goode v Angland [2017] NSWCA 311


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