Riding into danger: Motocross, track licencing and dangerous recreational activity defences. What is the proper test?
Originally Published by Leighton Hawkes and Jennifer Balech on Thursday, March 12, 2020 11:56:14 AM
Following a serious accident during a motocross competition event in 2004, a claim was brought against the State of New South Wales (the Office of Sport) as the entity with the statutory obligation to administer the compulsory scheme for licensing all motor racing venues in NSW. The State successfully raised a defence to the claim under the 'dangerous recreational activity' provisions in Section 5L of the Civil Liability Act 2002. In its decision the NSW Supreme Court confirmed that an objective test must consider both the nature of the harm suffered, and the likelihood (or obviousness) of the risk occurring, to determine whether an activity falls within the provisions of a 'dangerous recreational activity' defence.
Authors: Leighton Hawkes and Jennifer Balech
Judgment date: 6 March 2020
Citation: Shaw v Oakdale Junior Motorcycle Club Inc [2020]
Jurisdiction: Supreme Court of NSW – Common Law
At the time of the tragic accident, Russell Shaw was a nineteen-year old seasoned motocross competitor.
On 22 August 2004, Mr Shaw was participating in the NSW Senior Motocross Championship being held at the Oakdale Junior Motorcycle Club track in Oakdale, NSW.
As he prepared to enter a 'ski jump' situated 25 metres after the exit from a first turn, Mr Shaw was clipped by another participant, resulting in him falling from his motorcycle and being struck by other participants. Consequently, he suffered serious injuries including brain damage and quadriparesis.
Mr Shaw brought a claim against the State alleging that its agency, the Office of Sport (formerly the Department of Sport and Recreation) was negligent in the issuing of an annual licence to the Oakdale club for use of the subject track. The primary allegation involved a technical breach of a motorcycling by-law relating to the design of the circuit, which allegedly had two ski jumps within the requisite 30 metres distance of separation that was required.
The State accepted that it was responsible for issuing the license pursuant to its statutory obligations in administering Motorsports in NSW, but denied the balance of the allegations made by Mr Shaw. The State adduced evidence that reports had been received from a qualified motorsport track inspector, and from NSW Police, which both assessed the track as being suitable for relicensing.
In addition, the State relied on various statutory defences available to it under the Civil Liability Act 2002 (CLA) including:
Mr Shaw was ultimately unsuccessful in his claim against the State.
Justice Cavanagh found that Mr Shaw's accident arose as a result of him coming into contact with another bike whilst he was competing in the event.
His Honour was not satisfied that Mr Shaw had established the factual basis for his claim; namely that the actual cause of his accident was the alleged non-compliance of the track as of August 2004. There was insufficient evidence placed before the Court for such a finding to be made, which was in part due to the significant period of time that had elapsed since the accident and when the proceedings were commenced.
It was also held that Mr Shaw had not established that any act by the State (specifically as to the issuing of the licence to Oakdale club) was negligent, or in any way causative of the tragic accident.
Relevant for this article, His Honour found that the State's defence under the 'dangerous recreational activity' provision of section 5L was established.
It was accepted by the parties that motocross racing was a dangerous recreational activity.
Mr Shaw had sought to avoid this defence by submitting that it was not the risk of collision with another rider that was the obvious risk to be considered for the purposes of section 5L, but rather the risk associated with riding on a non-compliant track, where there were two jumps within an impermissible distance of 30 metres. This would be something not immediately obvious to a reasonable person, even a highly experienced motocross rider in Mr Shaw's position.
Mr Shaw's submission was not accepted.
Justice Cavanagh held that motocross was a 'dangerous recreational activity' which involved a significant risk of physical risk of harm. According to His Honour's analysis, the risk of the plaintiff falling off the bike, another rider hitting his bike, another rider landing on him after he had fell off, the plaintiff losing control of his bike on a corner before a jump, or the risks associated with participating in the activity generally would have been obvious to a reasonable person in the plaintiff's position.
As a result, the Court accepted that the harm suffered by Mr Shaw was a result of the materialisation of an obvious risk during the course of a dangerous recreational activity.
The Court determined it was unnecessary to further consider the balance of the State's statutory defences.
The application of the dangerous recreational activity defence under section 5L of the CLA has been the subject of consideration, and successful application in a number of recent cases; Goode v Angland [2017] NSWCA 311, Singh v Lynch [2019] NSWSC 1403.
This case confirms the principles arising from those earlier decisions, that an objective test considers both the nature and the degree of the harm suffered and the likelihood of the risk occurring, must be undertaken to determine whether an activity falls within the definition of a 'dangerous recreational activity'.
Whilst there could be many varying risks that an individual may encounter whilst participating in a dangerous recreational activity, the purpose of section 5L is to focus upon the actual risk that caused the accident in question, and then to analyse whether such risk was "obvious".
Here the risk was that a competitor in a recreational activity involving motorcycles travelling around bends and over jumps at high speed, poses the risk of a collision occurring. That was a risk deemed obvious to this activity, as acknowledged by the two experts called to give evidence, and also by Mr Shaw himself.
The authors acted for the State of New South Wales in this case.
Authors: Leighton Hawkes and Jennifer Balech
Judgment date: 6 March 2020
Citation: Shaw v Oakdale Junior Motorcycle Club Inc [2020]
Jurisdiction: Supreme Court of NSW – Common Law
Principles
- Dangerous recreational activity
- Assessment of the materialisation of an obvious risk
- Establishing a factual basis to a claim
- Causation
- Statutory defences under the Civil Liability Act 2002
Background
At the time of the tragic accident, Russell Shaw was a nineteen-year old seasoned motocross competitor.
On 22 August 2004, Mr Shaw was participating in the NSW Senior Motocross Championship being held at the Oakdale Junior Motorcycle Club track in Oakdale, NSW.
As he prepared to enter a 'ski jump' situated 25 metres after the exit from a first turn, Mr Shaw was clipped by another participant, resulting in him falling from his motorcycle and being struck by other participants. Consequently, he suffered serious injuries including brain damage and quadriparesis.
Mr Shaw brought a claim against the State alleging that its agency, the Office of Sport (formerly the Department of Sport and Recreation) was negligent in the issuing of an annual licence to the Oakdale club for use of the subject track. The primary allegation involved a technical breach of a motorcycling by-law relating to the design of the circuit, which allegedly had two ski jumps within the requisite 30 metres distance of separation that was required.
The State accepted that it was responsible for issuing the license pursuant to its statutory obligations in administering Motorsports in NSW, but denied the balance of the allegations made by Mr Shaw. The State adduced evidence that reports had been received from a qualified motorsport track inspector, and from NSW Police, which both assessed the track as being suitable for relicensing.
In addition, the State relied on various statutory defences available to it under the Civil Liability Act 2002 (CLA) including:
- That Mr Shaw was participating in a 'dangerous recreational activity' at the time of the incident, as defined in section 5K of the CLA, and therefore the State cannot be liable for the obvious risk that arose in such an activity under application of section 5L.
- That the Office of Sport was a public authority for the purposes of sections 42, 43, 43A and 44 of the CLA and entitled to the protections of those sections. Specifically, the State focussed its reliance on section 43A on the basis that the agency cannot be found negligent in the exercise of its statutory functions, unless the exercise (being the grant of the license) was deemed 'so unreasonable' that no other agency in its position would have issued it.
Decision
Mr Shaw was ultimately unsuccessful in his claim against the State.
Justice Cavanagh found that Mr Shaw's accident arose as a result of him coming into contact with another bike whilst he was competing in the event.
His Honour was not satisfied that Mr Shaw had established the factual basis for his claim; namely that the actual cause of his accident was the alleged non-compliance of the track as of August 2004. There was insufficient evidence placed before the Court for such a finding to be made, which was in part due to the significant period of time that had elapsed since the accident and when the proceedings were commenced.
It was also held that Mr Shaw had not established that any act by the State (specifically as to the issuing of the licence to Oakdale club) was negligent, or in any way causative of the tragic accident.
Relevant for this article, His Honour found that the State's defence under the 'dangerous recreational activity' provision of section 5L was established.
It was accepted by the parties that motocross racing was a dangerous recreational activity.
Mr Shaw had sought to avoid this defence by submitting that it was not the risk of collision with another rider that was the obvious risk to be considered for the purposes of section 5L, but rather the risk associated with riding on a non-compliant track, where there were two jumps within an impermissible distance of 30 metres. This would be something not immediately obvious to a reasonable person, even a highly experienced motocross rider in Mr Shaw's position.
Mr Shaw's submission was not accepted.
Justice Cavanagh held that motocross was a 'dangerous recreational activity' which involved a significant risk of physical risk of harm. According to His Honour's analysis, the risk of the plaintiff falling off the bike, another rider hitting his bike, another rider landing on him after he had fell off, the plaintiff losing control of his bike on a corner before a jump, or the risks associated with participating in the activity generally would have been obvious to a reasonable person in the plaintiff's position.
As a result, the Court accepted that the harm suffered by Mr Shaw was a result of the materialisation of an obvious risk during the course of a dangerous recreational activity.
The Court determined it was unnecessary to further consider the balance of the State's statutory defences.
Why this case is important
The application of the dangerous recreational activity defence under section 5L of the CLA has been the subject of consideration, and successful application in a number of recent cases; Goode v Angland [2017] NSWCA 311, Singh v Lynch [2019] NSWSC 1403.
This case confirms the principles arising from those earlier decisions, that an objective test considers both the nature and the degree of the harm suffered and the likelihood of the risk occurring, must be undertaken to determine whether an activity falls within the definition of a 'dangerous recreational activity'.
Whilst there could be many varying risks that an individual may encounter whilst participating in a dangerous recreational activity, the purpose of section 5L is to focus upon the actual risk that caused the accident in question, and then to analyse whether such risk was "obvious".
Here the risk was that a competitor in a recreational activity involving motorcycles travelling around bends and over jumps at high speed, poses the risk of a collision occurring. That was a risk deemed obvious to this activity, as acknowledged by the two experts called to give evidence, and also by Mr Shaw himself.
The authors acted for the State of New South Wales in this case.