Is a professional sport a ‘recreational activity’ for the purpose of the exclusion of liability for harm for obvious risks contained in section 5L of the Civil Liability Act?
Goode v Angland
In the recent Supreme Court decision in Goode v Angland, Harrison J considered whether section 5L of the Civil Liability Act 2002 (NSW)(the Act), which provides a defence to a claim arising from harm suffered from obvious risks of dangerous recreational activities, applied to a professional sport.
The plaintiff (Mr Goode) fell during a professional horserace at the Queanbeyan Race Course on 29 June 2009 and, as a result, suffered catastrophic injuries, which left him confined to a wheelchair for the rest of his life.
Issues in the case
The plaintiff claimed that his injuries were caused by the defendant’s (Mr Angland's) negligence or breach of duty by riding in such a manner as to cause interference to the plaintiff’s horse, causing it to fall to the ground. He alleged that the breach was due to the defendant’s alleged shifting inwards across the plaintiff’s clear and rightful running contrary to the “two lengths” rule.
The defendant denied liability and, amongst other things, submitted that the “two lengths” rule was no more than a guideline or rule of thumb to which strict adherence was not inevitably required and was not determinative of breach in tort. He also argued that the plaintiff had to prove that the defendant’s horse moved an unreasonable distance laterally and in such a matter as to deprive the plaintiff of a reasonable opportunity to adjust his own horse’s position in response.
The defendant also relied on section 5L of the Act. He argued that the plaintiff’s injuries resulted from the materialisation of an obvious risk of a dangerous recreational activity and therefore the provision excluded any liability that he had. He contended that horseracing is a sport and that the definition of recreational activity includes any sport, as defined in section 5K of the Act.
Section 5K of the Act defines '“dangerous recreational activity” as a recreational activity that involves a significant risk of physical harm. The same section provides that:
‘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.
Harrison J concluded that the defendant was not negligent. His Honour found, after a careful review of the evidence, which included a convening of the Court at the British Horseracing Authority in London so that the film of the race from multiple cameras could be viewed on specialised equipment, that the plaintiff did not ride his horse in a way that caused or contributed to the plaintiff’s fall. The fall was caused, despite any lateral movement of the defendant’s horse, by the plaintiff’s horse running uncontrolled into the rear of the defendant’s horse, which resulted in the animals’ legs coming into contact.
This conclusion was consistent with the finding of Racing NSW in the inquiry that it conducted into the incident, that the fall was not caused by rider error but by the inclination of the plaintiff’s horse to ‘over race’.
His Honour went on to determine the applicability of the dangerous recreational activity exclusion in section 5L of the Act. While the plaintiff accepted that professional horseracing was a dangerous activity, he contended that it was not a recreational activity as contemplated by section 5K of the Act. He argued in particular that professional sport was excluded from the concept of ‘recreational activity’, as this concept (in the context of the Act) was applicable to pursuit or activity for the purposes of enjoyment, relaxation or leisure and that that was different to the concept of the professional activity.
Harrison J rejected this proposition. He pointed out that reference to “any sport” in section 5K(a) of the Act is unique in that it does not contain any reference to the words enjoyment, relaxation or leisure that is contained in section 5K(b) and (c). His Honour also expressly disagreed with the findings of the Supreme Court of Tasmania in Dodge v Snell (where the Court concluded that recreational activity did not include professional sports) and found that there was no relevant 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.
As such, it was found that the plaintiff’s injuries were caused as a result of the materialisation of an obvious risk of a dangerous recreational activity and pursuant to section 5L of the Act the defendant could not be liable in negligence for those injuries.
This judgment is of some significance in its conclusion that a defendant in a claim arising in a professional sport can rely on the exclusion of liability for the materialisation of an obvious risk in a dangerous recreational activity It sets out an important precedent in Australia, which will be of great use to various professional sports organisations and leagues, as well as their insurers, when defending claims arising from injuries suffered by professional sports players.
The judgement also reflects the difficulties that plaintiffs face in proving negligence in claims arising in professional horseracing. As Chesterman J observed in a similar case ‘The court ought not to be too delicate in its assessment of the defendants’ conduct which is said to be negligent. Thoroughbred horseracing is a competitive business which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are limited‘.
Given this, His Honour’s conclusions on both issues were perhaps not surprising.