"Recreational" activities can still be dangerous for professionals11 January 2018 | Sport & Recreational Activities
The NSW Court of Appeal has held that section 5L of the CLA can operate as a defence not only in respect of recreational sports, but also professional sporting activities and a claim by a professional jockey was therefore unsuccessful
- Whether catastrophic injuries suffered by a jockey during professional horse race were the materialisation of an obvious risk of a dangerous “recreational” activity.
The appellant sustained catastrophic injuries when he was thrown from a horse during a professional horse race. The front hooves of the horse he was riding clipped the rear heels of the horse in front of him. The appellant commenced proceedings against the other jockey making various allegations in respect of the way he rode his horse. The appellant was unsuccessful in his claim in the NSW Supreme Court in 2016, and subsequently appealed to the NSW Court of Appeal. For a detailed background of this matter, and an analysis of the trial decision, please see our previous coverage here.
The Issues on Appeal
The key issue on appeal was whether the trial judge’s finding that professional horse racing constitutes a “dangerous recreational activity”, such that section 5L of the Civil Liability Act 2002 (NSW) (CLA) operated to provide a complete defence to the claim (on the basis the incident was a manifestation of an obvious risk of a dangerous recreational activity), was correct.
The Decision on Appeal
The Court of Appeal dismissed the appeal, and upheld the trial judge’s decision. In circumstances where the definition of “recreational activity” under section 5K of the CLA refers to “any sport”, and there is no distinction drawn in the definition between sports participated in for recreational purposes and those participated in for professional purposes, professional horseracing does constitute a “recreational activity” to which section 5L of the CLA can apply.
The Court of Appeal otherwise confirmed that there was no error on the part of the trial judge in finding that the respondent jockey’s horse had not moved in an unreasonable manner, or in any way other than in the ordinary course of racing. It was also held that the trial judge had not erred in placing reliance on the contemporaneous video and photographic evidence of the incident to reach such a conclusion, given that he also took into account the parties’ evidence and that of the relevant experts.
Implications for you
This decision provides a timely reminder that section 5L of the CLA can be relied upon by sporting organisations and their insurers to provide a defence not only in respect of claims where a person is injured while participating recreationally in a sport, but also in respect of those sports where people are participating on a professional basis and/or being remunerated for their participation.