Jockey relies on statutory defences to defeat claim of negligent riding

The Supreme Court of NSW has found that the defendant horse jockey was not liable for the plaintiff’s injuries after he fell from his horse. The Court reasoned that the risk of injury was a materialisation of an obvious risk in a dangerous recreational activity.

Facts

On 14 August 2012, the plaintiff, Mr Singh, was seriously injured when his horse fell at the home turn during a race at the Tamworth Race Course.  As a result of the fall, the plaintiff sustained a serious brain injury.

A Stewards Inquiry conducted shortly after the incident charged the defendant with careless riding on the basis that the defendant had engaged in ‘careless, reckless, improper, incompetent or foul riding’.

The plaintiff commenced personal injury proceedings against the defendant in the Supreme Court of NSW.  The defendant relied on the statutory defence contained in sections 5K and 5L of the Civil Liability Act 2002 (NSW) (CLA), ie that he is not liable for harm suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity.

At trial

His Honour followed recent case law and accepted horseracing was a dangerous recreational activity.  His Honour considered that the relevant risk of a horse falling, taking the jockey to the ground and causing injury was a risk that would have been obvious to a reasonable jockey in the plaintiff’s position.

The plaintiff argued that the relevant risk was narrower - that it was the risk that another rider would ‘deliberately ride his horse as to cause reckless or deliberate contact with an adjoining horse, in a manner that was contrary to the rules of racing’.  However, his Honour rejected this narrower formulation of the risk and noted that the risk needed to be assessed at a ‘reasonable level of generality’.

However, even if the plaintiff’s narrower formulation of the risk was accepted, his Honour still considered that the risk of careless riding was an obvious risk.  His Honour noted that hundreds of jockeys are charged each year with careless riding and ‘foul’ riding.  In fact, the plaintiff himself had been found guilty eight times in circumstances involving him shifting his mount across the track.

Even if the statutory defence did not apply, his Honour found that the defendant did not breach his common law duty of care to other competitors.  His Honour emphasised that in ‘dynamic circumstances’, under ‘intense time pressure’, where the defendant and all of the jockeys around him were under a professional obligation to race to win, the evidence did not establish that the defendant acted with less than reasonable care towards his competitors.

Commentary

The case is consistent with recent decisions defining horse racing as falling within the definition of a ‘dangerous recreational activity’.  The case also provides guidance on how the statutory defences will apply in circumstances where sports competitors have contravened the rules of the game.