Thinking | 27 July 2020

Court dismisses jockey’s appeal against competitor over injuries caused by negligent riding

By Rachael Arnold and Holly Turner

The NSW Court of Appeal has dismissed the appeal of Hari Singh (Appellant), a professional jockey, against Glenn Lynch (Respondent), another jockey, arising from serious injuries sustained when his horse fell during a race meeting at the Tamworth Racecourse in August 2012.[1]

This result provides reassurance for defendants/insurers seeking to rely on the dangerous recreational activity defence in Section 5L of the Civil Liability Act 2002 (NSW) (CLA). The Court confirmed that a wide (but not too wide) characterisation of the risk of harm is appropriate when determining what constitutes an ‘obvious’ risk.

Case summary: dangerous riding and ‘obvious’ risk

The fall was caused by the Respondent riding his horse so as to push the horse alongside the Appellant into the path of the Appellant’s horse. It involved an aggressive, deliberate bump.

The Appellant sued the Respondent in negligence.

The Supreme Court dismissed the proceedings because (a) the Respondent did not breach his duty of care to the Appellant, and (b) his injury was caused by the materialisation of an obvious risk which arose during the course of a dangerous recreational activity.

On Appeal, the Appellant challenged the finding that the Respondent, who had been found guilty of careless riding by the Stewards, was not negligent. He also challenged that his involvement in the race as a professional jockey constituted participation in a ‘recreational activity’ (challenging Goode v Angland [2017] NSWCA 311); and argued that the dangerous riding of the Respondent in breach of the rules of racing did not constitute an ‘obvious’ risk.

The Court of Appeal[2] dismissed the appeal and held:

  • Goode v Anglandcorrectly construed the dangerous recreational activity provisions in the CLA and there is no basis for excluding professionals involved in the sporting activity from exception of liability.
  • The Supreme Court was incorrect to hold that the Respondent did not breach his duty of care to the Appellant. The Respondent’s riding was reckless (rather than merely careless) and also grossly negligent.
  • When determining the ‘obviousness’ of the risk so as to engage Section 5L of the CLA (as a complete defence to the negligence finding), the relevant question to be determined was whether the risk of a fall as a result of another jockey’s careless riding, constituted by the deliberate contact with another horse, and contrary to the rules of racing, was the materialisation of an obvious risk.
  • The premise of horseracing is that jockeys will compete and ride their horses aggressively, and it is not uncommon for jockeys to push the boundaries and be sanctioned for ‘careless’ riding. All this is known to all professional jockeys.
  • The precise degree of the Respondent’s negligence was not material, and so describing the conduct of the Respondent as ‘reckless’ or ‘careless’ was not an essential element of the characterisation of the risk.
  • Accordingly, the Appellant’s injury was the result of the materialisation of an obvious risk which occurred in the course of a dangerous recreational activity.

Case commentary: relying on the ‘dangerous recreational activity’ defence

This decision is the latest in a growing body of case law in New South Wales where defendants have successfully relied on the dangerous recreational activity provisions in the CLA to defeat negligence findings.

While there was no dispute that horseracing was a dangerous recreational activity in that it involved significant risks of physical harm, the Court of Appeal noted that not all injuries suffered by jockeys falling from a horse in a race would be caught by the Section 5L defence.

To establish ‘obviousness’, Courts will not accept a categorisation of the relevant risk so broad that it encompasses all possible risks within the activity. There will always be some risks of horseracing which will not be obvious to a jockey. For example, the Court of Appeal suggested that if an occupier of a racetrack was found to have negligently permitted rabbits to burrow under the course, and a horse fell when it put its hoof in a burrow, it is unlikely that this would be an obvious risk.

The takeaway is that while the defence was successful in this jockey v jockey case, it is not a ‘catch all’. Each case will turn on the precise facts.

[1] The case is Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, and the Court handed down its decision on 23 July 2020.
[1] Majority – Basten, Leeming and Payne JJA.

Contact

Rachael Arnold

Rachael is a well-rounded and experienced insurance lawyer with a focus on general insurance and product liability.

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