Singh bhnf Ambu Kanwar v Lynch  NSWCA 152
The New South Wales Court of Appeal has once against considered the “dangerous recreational activity” defence, confirming its application to professional sporting activities, as well as recreational ones. This decision will have significant implications for insurers insuring those engaged in professional and semi-professional sports, such as water skiing and wake boarding.
The appellant, Mr Singh, and the respondent, Mr Lynch, were both professional jockeys. The respondent was “boxed in” against the rail early in race 7 at Tamworth Jockey Club on 14 August 2012. To try to get ahead, he pushed the horse forward and out. Doing so was determined to be a reckless manoeuvre and in breach of the rules of racing. It led to the hind of the horse to the respondent’s left becoming entangled with the horse behind it, which was being ridden by the appellant. The appellant fell, leading to a significant and potentially permanent disability.
At first instance
The primary decision in the New South Wales Supreme Court dismissed the proceeding, finding that the respondent did not breach his duty of care to the appellant and, in addition, the appellant’s injury arose from an obvious risk of a dangerous recreational activity. Because section 5L of the New South Wales Civil Liability Act offers a complete defence to such risks, the respondent was not liable.
The five bench Court of Appeal was split on the decision. The majority dismissed the appeal. The two dissenting judges would have allowed it.
In reaching that conclusion, there were three key issues discussed by the Court.
First, the appellants challenged a 2017 decision of the Court of Appeal, Goode v Angland, which held that the meaning of “dangerous recreational activity” in the Civil Liability Act includes professional sports, despite the fact the word “recreational” is in the definition. That is particularly because the definition goes on to say that “any sport” is a recreational activity. The Court therefore upheld its prior reasoning, that professional horse racing was a recreational activity for the purposes of the Civil Liability Act, and that professional sportspeople are entitled to claim protection under the dangerous recreational activity defence.
The second key question was whether the risk of another rider acting “recklessly” and in breach of the rules could be an “obvious risk” of horse racing. The majority reasoned that it could. They referred to the recent decision in Menz v Wagga Wagga Show Society (see HWL Ebsworth’s previous note, here) in finding that a reasonable jockey would expect that there is a risk in any horse race that a jockey will go beyond the rules. All sports include an expectation that sometimes players will breach the rules. The Court noted this was different from “non obvious” risks, for example a negligent racetrack owner allowing rabbits to burrow under the course.
The minority dissented on this point, saying that a reasonable person would not expect a fellow jockey to deliberately ride in a way which was reckless. On that basis, they said the dangerous recreational activity defence should fail.
The third question was breach. That was only relevant if the dangerous recreational activity defence failed. As it did not, the decision did not turn on this. However, the Court was nonetheless unanimous in finding he the respondent did breach his duty. If the dissenting judges’ opinion had prevailed, this would have turned the decision so that the respondent was liable.
The Court of Appeal has clarified and confirmed that the word “recreational” in the dangerous recreational activity defence can be misleading. In fact, those engaged in professional sports (at least professional horse racing) may be able to seek the protection of the defence as well. This will be especially relevant for insurers of those engaged in semi-professional water sports, such as water skiing and wake boarding, which often see injuries.
The split decision on whether the deliberate, reckless acts of another participant are an obvious risk leave open the possibility that future Courts may narrow the application of the defence to exclude deliberate or negligent acts of others.
This article was written by Matthew Brooks, Partner and Ryan Hunter, Solicitor.