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Jurisdiction: New South Wales Court of Appeal

Principles

• Professional sports are recreational activities for the purpose of the statutory definition in section 5K of the Civil Liability Act 2002 (NSW) (CLA).

• The characterisation of an obvious risk for the purpose of section 5L of the CLA should not reflect fine distinctions of the activity or pursuit.

• Reckless or deliberate wrongdoing can be an obvious risk of a dangerous recreational activity.

• The dissenting judgment may provide scope for the appellant to seek special leave to the High Court.

Background

Hari Singh was a professional jockey, who suffered head injuries after an incident on 14 August 2012 while riding in Race 7 of a meeting at Tamworth, when his horse, Blue Onyx, fell. The fall was caused when another jockey, Glenn Lynch, rode his horse, Darcey, so as to push another horse, Decoree, which was ridden by Gregory Ryan and was alongside Darcey, into the path of Blue Onyx.

Lynch was found guilty of "careless, improper, incompetent or foul riding" under the Australian Rules of Racing on the basis that Lynch's riding of Darcey into Decoree was "abrupt", and that decision was upheld on appeal.

Singh sued Lynch seeking damages with respect to his injuries. At trial,¹ Singh was unsuccessful. Fagan J held that:

• professional horse racing is a "dangerous recreational activity" within the meaning of section 5K of the CLA;

• section 5L of the CLA, relating to the materialisation of an obvious risk of a dangerous recreational activity, applied in this case;

• the risk that materialised in this case was "the risk of [Blue Onxy] falling, bringing [Singh] to the ground and causing him injury";²

• a more specific risk that Singh contended for³ was still an obvious risk given careless riding is a common occurrence in horseracing; and

• in any event, Lynch did not breach his common law duty of care owed to Singh by making the decision he did in the pressure of the race, as his riding was careless and not reckless.

Decision

Singh appealed – his grounds of appeal centred on the following issues:

• whether the finding in Goode v Angland⁴ that professional horse racing is a dangerous recreational activity is correct;

• whether Singh's injury was the result of a materialisation of an obvious risk which occurred in the course of a dangerous recreational activity; and

• whether Lynch breached the duty of care owed to other participants in the race.

Was Goode v Angland decided correctly?

Given the challenge to Goode v Angland, a five judge Court heard Singh's appeal.

The Court held unanimously that the construction of the definitions of "recreational activity" and "dangerous recreational activity" in Goode were correct, so that professional sport, including horse racing, is a "recreational activity" for the purposes of section 5K.⁵ It is improper to read down the statutory definition of "recreational activity" by reference to the ordinary meaning of the word "recreational".⁶

Materialisation of an obvious risk

In relation to this issue, Singh argued that Lynch's riding of Darcey was not an obvious risk.

The majority (Basten, Leeming and Payne JJA) held that it was, and followed Leeming JA's recent judgment in Menz v Wagga Wagga Show Society Inc.⁷ In making this finding, they focused on the characterisation of the obvious risk. Critically, Basten JA held:
"A prospective assessment of the obviousness of a risk should not reflect fine distinctions differentiating aspects of unsafe riding. It is clear from a consideration of the Rules of Racing that breaches are likely to be common in circumstances where jockeys are subject to obligations to ride competitively throughout and to maximise the opportunities for their horse, whilst not riding carelessly or improperly."