Thinking | 7 December 2017
The NSW Court of Appeal confirms that a professional sport is a ‘recreational activity’
Mr Goode was riding a horse named ‘Shot of the Rails’ over 1,640 metres at the Queanbeyan Racecourse. Mr Angland was a jockey riding ‘Port Gallery’ in the same race. Shortly after the start of the race, Mr Goode was thrown from his mount when it fell. As a consequence, he sustained catastrophic injuries leaving him confined to a wheelchair for the rest of his life.
Mr Goode commenced proceedings, in the Supreme Court of NSW, against Mr Angland alleging that his loss, damage and injuries were caused by Mr Angland’s negligence or breach of duty by riding in such a manner as to cause interference to Mr Goode and his mount.
The race was recorded on video by cameras located at various points around the racecourse. Still photographs were derived from this footage. Both the photographs and the video were in evidence at trial. Both parties sought to use this evidence to demonstrate, with the assistance of expert evidence, the relative positions and movement of the horses.
At first instance
Justice Harrison held that Mr Angland was not negligent in the respects alleged by Mr Goode and did not breach his duty to Mr Goode.
In addition, His Honour held that Mr Angland was entitled to rely on section 5L of the Civil Liability Act (CLA) as an absolute defence to Mr Goode’s claim because Mr Goode’s harm was suffered as a result of a materialisation of an obvious risk of a dangerous recreational activity. In this regard, His Honour gave a literal meaning to the term ‘any sport’ which meant that professional sport is included in the definition of a ‘dangerous recreational activity’.
Mr Goode appealed the decision to the NSW Court of Appeal. The majority dismissed the appeal.
On appeal, Mr Goode submitted that the primary judge impermissibly used the video and photographic evidence to develop his own interpretation of how the incident occurred. Following a detailed review of all the evidence, the majority held that no error had been demonstrated, by His Honour. The Court of Appeal held that His Honour’s factual findings were correct and considered that any contrary conclusion to the one at which His Honour arrived would have been erroneous.
Mr Goode additionally questioned whether section 5L of the CLA provided a complete defence on the basis that the fall was a manifestation of an obvious risk of a dangerous recreational activity.
In leading judgment, Justice Leeming (with President Beazley and Justice Meagher concurring) disagreed with the decision of the Tasmanian Supreme Court in Dodge v Snell.1
The Court of Appeal held that the primary judge was correct to conclude that section 5L was applicable to professional sportspeople.
Even though President Beazley ultimately agreed with Justice Leeming’s judgment, President Beazley conceded that the term ‘recreational activity’ might apply only to those activities that are of a recreational character. President Beazley noted that, when read generally, Division 5 of the CLA appears to be directed to persons taking part in ‘recreational activities’, as the term is commonly used, and not to professional sportspeople who are either in employment or otherwise engaged in the sport professionally for reward.
President Beazley further stated that it appeared incongruous that an activity undertaken as a profession, trade or livelihood would be subject to the same legislative exclusion as an activity undertaken for enjoyment, relaxation or leisure. Ultimately, however, President Beazley was persuaded by the reasoning adopted by Justice Leeming regarding the proper construction and effect of sections 5K and 5L.
The Court of Appeal’s decision to dismiss the appeal is significant to insurers of sporting clubs and sportspersons as it is now clear that where the harm suffered is as a result of a materialisation of an obvious risk of a dangerous recreational activity, then section 5L of the Civil Liability Act provides a defence to a finding in negligence.
The decision to dismiss the appeal sets a precedent decision that the definition of ‘recreational activity’ in the CLA includes any sport, including professional sport.
1 TASSC 19.
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