Standing in the way of the obvious: The NSW Court of Appeal confirms the broad statutory definition of recreational activity
Originally Published by Peter Ford and Renee Magee on Thursday, September 10, 2020 9:50:01 AM
When does volunteering at a sporting venue become a dangerous recreational activity? The NSW Court of Appeal continues to apply a broad interpretation to recreational activity in upholding the defence of obvious risk of dangerous recreational activities.
Author: Renee Magee
Judgment date: 21 August 2020
Citation: Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185
Jurisdiction: NSW Court of Appeal
Principles
The obvious risk defence in dangerous recreational activity cases is more likely to succeed if the risk can be broadly characterised
Even if an activity is not recreational in nature, it may still be considered 'recreational' within section 5K of the CLA simply by virtue of its location
For a recreational activity to be 'dangerous' there must be a significant risk of physical harm occurring
Background
The plaintiff volunteered to operate a catching pen gate during a greyhound race at Hastings River Greyhound Racing Club (the Club). In a moment of distraction, he stood in the path of the mechanical lure that travels around the racetrack and was struck in the leg, sustaining severe injuries.
At trial, the Club was held not to be negligent by virtue of the complete defence in section 5L of the Civil Liability Act 2005 (NSW) (CLA). The trial judge held that operating a catching gate during a greyhound race constituted a dangerous recreational activity. The risk of being struck by a lure that travelled in excess of 70km/hr was obvious to anyone standing in its way and accordingly the Club could not be found liable for the plaintiffs' injuries. The plaintiff appealed the trial judge's decision.
The principal consideration on appeal was whether the trial judge was correct in finding that the plaintiff had engaged in a dangerous recreational activity.
The plaintiff argued that for an activity to fall within section 5K's definition of a "recreational activity" it ought to be recreational in character. Otherwise, when interpreted in its literal sense paragraph (c) of section 5K (a pursuit or activity engaged at a sporting or recreational place) creates an artificial concept of "reactional activity" and is unacceptably wide. It was suggested this would mean that someone strolling through a park, a spectator at a sporting event, a food vendor or a volunteer firefighter operating in a national park would fall within the definition.
Decision
The Court of Appeal upheld the trial judge’s decision and found the statutory defence relating to dangerous recreational activity did apply.
In dismissing the Appeal, the Court reasoned the purpose of defining recreational activity in section 5K is to deny liability in instances where an obvious risk of a dangerous recreational activity materialises. The plaintiff's operation of the gate took place at a sporting venue and plainly fell within the third limb of section 5K. It was inconsequential that the plaintiff's examples of walking through a park or being a spectator were also captured by the definition of recreational activity, as these activities did not involve significant risks of physical harm so as to render them dangerous.
The Court also addressed whether an activity of a volunteer was a "recreational activity" within the CLA. The plaintiff had argued that altruistically assisting others was not for a recreational purpose and the defence should therefore not apply. In rejecting this, the Court paid consideration to the context of the CLA and concluded there was nothing to suggest the drafters had intended for the dangerous recreational activity defence to exclude volunteers or be construed narrowly. Irrespective, it was not the Court's role to amend any anomalies caused by the drafting of the Act.
Finally, it is worth noting that both White JA and Simpson AJA, in separate judgments, made an obiter comment that even if unintended consequences are created by the statutory definition of recreational activities, it is not the function of the Court to construe the definition so as to overcome those unintended consequences.
Why this case is important
The decision confirms a liberal interpretation is to be afforded to the three-limbed definition of 'recreational activity' in section 5K of the CLA. The starting point in the consideration of a defence under s 5L is to identify the activity which is said to be a recreational activity within one of the three limbs of s 5k. The location of the activity is an important consideration and can extend beyond activities that have a recreational purpose. However for the defence to succeed the activity must be dangerous in that it involves a significant risk of physical harm.
This interpretation is not only critical in terms of the dangerous recreational activity defence, but also in the context of risk warnings and risk waivers, and the defences respectively available in respect of each under sections 5M and 5N of the CLA.
Further, the relatively low threshold for obvious risk in the context of the section 5L defence should comfort recreational service providers, insurers and defendants in the knowledge that Courts are reluctant to accept a narrow characterisation of risk where dangerous recreational activities are concerned.
It is clear the Court feels bound by the third limb of the definition of recreational activity to uphold these defences in contexts beyond the ordinary meaning of "sporting pursuits" or "recreational activities" (provided the balance of the defences are made out) even if there is potential for the defence to work "injustice" in some cases. We wait to see whether the Parliament moves to limit the statutory definition of 'recreational activity' as the Courts continue to grapple with the liability arising out of such activities.