In Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185, the Court of Appeal considered the application of s 5L of the Civil Liability Act 2002 (NSW) (CLA) and in doing so, the construction of paragraph (c) of s 5K of the definition of “recreational activity”.
The Facts
The Appellant, Jason Carter, suffered a serious injury to his left leg at the Hastings River Greyhound Racing Club (the Club). The Appellant owned greyhound racing dogs, trained greyhound racing dogs and was involved in racing greyhound racing dogs. On 25 April 2015 the Club requested the Appellant operate the catching pen gate in two races. The Appellant was, in essence, required to let a lure (which the dogs chase around the track) pass through a gap between the inside rail of the track and the gate, and then to close the gate to divert the dogs into a catching pen. During the race the Appellant was distracted by a dog that had fallen, recovered and continued to run. The Appellant continued to watch the dog, which had fallen, run and was so distracted that he did not move out of the path of the lure, which travels at 70 km/h around the track. The lure struck the Appellant on his left leg causing serious injury.
The Claim
The Appellant commenced proceedings against the Club seeking damages for his personal injuries. The Club denied liability and raised certain statutory defences pursuant to the CLA, more specifically s 5L. The primary judge upheld s 5L and denied the Appellant’s claim. The Appellant challenged the finding that operating the catching pen gate was a ‘dangerous recreational activity’.
The Issues
The Appellant submitted that s 5L did not apply as he was not involved in a recreational activity. The Appellant placed heavy emphasis on the fact that in performing his role as catching pen gate operator he was a volunteer.
The CLA
S 5L provides that a defendant is not liable in negligence for harm suffered by a plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity.
“Recreational activity” is defined in s 5K as:
- “any sport; and
- any pursuit or activity engaged in for enjoyment, relaxation or leisure; and
- any pursuit or activity engaged in at a place where people ordinarily engage in sport or in any pursuits or activity for enjoyment, relaxation or leisure.”
“Dangerous recreational activity“ is defined in section 5K as:
“a recreational activity that involves a significant risk of physical harm”.
The Defence
In order to make out a defence under s 5L a defendant must establish:
- That the plaintiff engaged in a “recreational activity” (within at least one of the three limbs of the s 5K definition);
- That the activity carried an “obvious risk” of harm (as defined in section 5F);
- That the harm suffered by the plaintiff resulted from the materialisation of that risk; and
- That the recreational activity was dangerous in the sense that it involved a significant risk of physical harm, within the s 5K definition.
On Appeal
The parties agreed that the relevant activity was “the operation of the catching pen gate”.
The question that arose was whether the activity fell within the definition of s 5K, that is, was the activity:
- “any sport; and
- any pursuit or activity engaged in for enjoyment, relaxation or leisure; and
- any pursuit or activity engaged in at a place where people ordinarily engage in sport or in any pursuits or activity for enjoyment, relaxation or leisure.”
The primary judge held that the operation of the gate was not a sport but that it was a pursuit or activity in which the Appellant engaged for enjoyment, relaxation or leisure within paragraph (b) and, in any event, took place at a location within paragraph (c).
The Appellant challenged that conclusion. The Appellant submitted that the fact a volunteer might gain some sense of satisfaction or enjoyment in undertaking any particular recreational activity is beside the point, that any such sense of satisfaction and enjoyment was a by-product and that there was no evidence that the Appellant undertook the operation of the gate for enjoyment, relaxation or leisure.
The Court found there was no evidence that the Appellant engaged in the activity of operating the catching pen gate for “enjoyment, relaxation or leisure.” The Court held that the goal of the activity undertaken is relevant to determining whether the activity is or is not a recreational activity (at least within paragraph (b) of the definition).
The Court noted the stated goal of the Appellant agreeing to operate the catching pen gate was not something from which, on the evidence, the Appellant derived, or sought to derive, “enjoyment or relaxation” or which he undertook for the purpose of “leisure“. Accordingly, the Court found the activity of operating the catching pen gate did not fall within paragraph (b) of section 5K.
The Court then had to determine if the activity of operating the catching pen gate came within paragraph (c), as a “pursuit or activity engaged in at a place where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.” On a literal interpretation of paragraph (c) the Court held there could be little doubt that the activity of operating the catching pen gate comes within paragraph (c), but the Appellant argued a literal interpretation gives an artificial meaning to the word “recreational“, or to the concept of “recreational activity“. The Appellant submitted that applying paragraph (c) literally would result in s 5L having a potentially unacceptably wide operation with unintended consequences. The Appellant argued that the words “any pursuit or activity” in paragraph (c) should be construed as “any pursuit or activity of a recreational character“.
The Court noted that issues with respect to the construction of the definition of “recreational activity” in section 5K have presented previously. In Goode v Angland (2017) 96 NSWLR 503 the issue was whether the term “sport” in paragraph (a) of the definition encompassed professional, as distinct from non-professional horse racing. The argument here was that professional horse racing is not recreational in nature and therefore is not a recreational activity. The court rejected this argument on the basis that paragraph (a) drew no distinction between sports participated in for recreational purposes, and professional sports.
In Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, the Court was convened to determine a challenge to the correctness of the decision in Goode, where a similar argument to the Appellant’s was raised. This Court rejected the argument by holding that paragraph (a) is directed to the characterisation of the activity in question, paragraph (b) is directed to the purpose of the activity; and paragraph (c) is focused on the location in which the activity takes place. In paragraph (a) no distinction is drawn between sports participated in for recreational purposes, and professional sports. The Court upheld the decision in Goode. But it was only paragraph (a) of the definition that was in question in Singh. The construction of paragraphs (b) and (c) did not arise.
The Court held that there is no reason to think that the principles of construction applied in Singh should not also apply to paragraph (c) and noted that the Appellant’s construction would contradict the decision in Goode.
The Court further held that s 5L only operates to deny liability where an “obvious risk” of a “dangerous recreational activity” materialises, requirements which narrow the alleged “wide operation” of paragraph (c).
Further, the Court rejected the Appellant’s submissions that paragraph (c) was not intended to apply to volunteers.
The Court held that the operation of the catching pen gate involves a significant risk of physical harm as the lure travelled on a rail at more than 70 km/h. The lure presented an obvious danger to anybody standing in its way. As such, the activity of operating the catching pen gate was a dangerous one.
Accordingly, the defence under section 5L of the CLA was made out and the appeal was dismissed.
Commentary
The decision reinforces personal responsibility in claims that arise from obvious risks of dangerous recreational activities.
This article was written by Brett Turnbull, Partner.
