Thinking | 25 August 2020
Court dismisses appeal by greyhound owner struck by a mechanical lure while volunteering at racing club
By Rachael Arnold and Holly Turner
The NSW Court of Appeal dismissed an appeal on 21 August 2020 from greyhound owner, Jason Carter, who suffered a serious left leg injury on 25 April 2015 when he was struck by a mechanical lure while voluntarily assisting the Hastings River Greyhound Racing Club (Club). Simpson AJA (with Gleeson JA and White JA agreeing) upheld the Supreme Court of NSW decision that the Appellant’s injuries arose from the materialisation of an obvious risk of a dangerous recreational activity and that Section 5L of the Civil Liability Act 2002 (NSW) (Act) provided a complete defence to the claim.
This follows the recent decision of Singh, where Leeming JA, Basten JA and Payne JA upheld the Respondent’s reliance on Section 5L in a claim arising from injuries sustained during a ‘jockey v jockey’ horse racing incident.
The Appellant attended the Club for the purpose of racing three of his dogs, and during the day was asked by the Club to assist by operating the catching pen gate during some of the races. At one stage, as the Appellant stood between the gate and the railing, he became distracted by a fallen dog when the lure ‘suddenly and unexpectedly’ smashed into his left leg.
He sued the Respondent in negligence.
Dangerous recreational activity
In order to make out the Section 5L defence, the Respondent must establish four matters:
- that the Appellant was engaged in a ‘recreational activity’ (Section 5K of the Act);
- that there was an ‘obvious risk’ of that activity – a risk which in the circumstances would have been ‘obvious to a reasonable person in the position of the Appellant’ (Section 5F of the Act);
- that the harm suffered was the result of the materialisation of that obvious risk; and
- that the recreational activity was a ‘dangerous’ one in that it involved a ‘significant risk of harm’ (Section 5K of the Act).
The Appellant submitted that operating a catching pen gate fell outside the definition of a recreational activity in Section 5K of the Act, as distinct from participating in greyhound racing generally. He submitted that a literal interpretation gives an ‘artificial meaning’ to the word ‘recreational’, or to the concept of ‘recreational activity’, and leads to Section 5L capturing an unacceptably wide scope of activities (such as a person walking through a park on the way home, a spectator at a sporting event, or a vendor of food and drink).
The Court of Appeal upheld the Primary Judge’s decision that this activity, which occurred at a place where people ordinarily engage in greyhound racing (which is a pursuit or activity for enjoyment, relaxation or leisure), falls within the legislative definition of paragraph (c) of Section 5K.
The Court of Appeal held that it did not matter that a literal interpretation would capture a broad range of activities (such as walking in a park, spectating at sports event or providing catering services), as to rely on Section 5L a Respondent will still need to establish that the activity involved a significant risk of harm, and that an obvious risk of the activity materialised and caused injury.
The Primary Judge identified the relevant risk of harm as ‘serious injury [to the Plaintiff] from being struck by the lure if standing in its path during a greyhound race’, and that this risk was an obvious risk.
The Appellant did not expressly challenge this finding.
For completeness, Simpson AJA outlined that while in Singh, he and McCallum JA (dissenting) recently urged caution in the application of Section 5L in relation to the identification of an obvious risk (and found that the relevant risk in that case was not obvious), this had no bearing on this appeal.
Was it dangerous?
The Appellant submitted that he was not engaged in a recreational activity that involved a significant risk of physical harm which was ‘inherent in, or an incident of’ the activity of opening and shutting a catching pen.
The Court of Appeal held that the lure, which travelled on a rail at more than 70kph, presented an obvious danger to anybody standing in its way. Accordingly, the activity of operating a catching pen gate was a dangerous one.
The Section 5L defence was sufficient to dispose of the appeal.
The Court of Appeal held that even if the Section 5L defence could not be established, there was no negligence which caused the Appellant’s injuries. Additionally, the Court of Appeal upheld the Primary Judge’s finding that if the Respondent had been liable to some extent, a 50% reduction for contributory negligence would be appropriate.
This is the most recent decision in a growing body of NSW Court of Appeal cases where Defendants have successfully relied on the dangerous recreational activity provisions in the CLA to defeat negligence findings. With Singh recently focussing on the obviousness of the risk, and Carter focussing on the interpretation of recreational activities, defendants/insurers should feel well placed to make early assessments on the prospects of relying on Section 5L.
 Section 5K defines ‘recreational activity’ as:
(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.
 Drawing upon the language in Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355 at -.
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