Recreational activities don’t always require physical exertion and skill Recreational activities don’t always require physical exertion and skill

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Recreational activities don’t always require physical exertion and skill

22 July 2019 | Sport & Recreational Activities

A greyhound racing club has successfully defended a claim by a greyhound trainer, who sustained injuries when he was asked by a committee member of the club to operate the catching pen gate during two races. The Greyhound Racing Club successfully raised various defences to liability pursuant to Civil Liability Act 2002 (NSW) (CLA).

 In Issue

  • Whether the injuries suffered by a gate keeper during a professional greyhound race were the materialisation of an obvious risk of a dangerous recreational activity.  

The Background

On 25 April 2015, the plaintiff was on the track at the Hastings River Greyhound Racing Club for the purpose of racing three of his dogs. Between races two and three, the claimant was walking past a committee member of the club, who asked the plaintiff if he was free to operate the catching pen gate and the returning gate during races five and eight. To operate the catching pen, the plaintiff had to wait for the dogs to run past then move the gate across the track to a point near the inside railing, leaving enough space between the gate and the railing for the lure to pass after the finish of the race. He then had to close the gate.

The plaintiff claimed that as the dogs ran down the straight during the race, he moved the catching pen gate as required across the inside railing, leaving just enough space for the lure to go past the finish. As he stood between the gate and the railing, he watched a dog fall at the first turn. It was in that moment, as the Plaintiff was watching the dog that had fallen, that the lure smashed into the plaintiff’s left leg between his knee and ankle, causing him to suffer personal injury.

The plaintiff alleged that the incident was caused by the defendant’s negligence in failing to delegate the job of operating the track gate to an employee and or someone properly trained in the operation of the gate.

The Decision at Trial

The Court reiterated that section 5L of the CLA provides there is no liability for harm suffered from the materialisation of an obvious risk of a dangerous recreational activity.

The plaintiff disputed that he was engaged in a recreational activity at the time of the injury as operating the gate was not a sport, and did not involve physical exertion or skill. The plaintiff instead submitted that he was engaged in a recreational service under section 5N and therefore could not be engaged in a recreational activity. However, the Court established that operating a catching gate is an activity that occurred at a place where people ordinarily engage in greyhound racing, which is a pursuit or activity for enjoyment, relaxation or leisure which squarely captures the operating of the catching gate as a recreational activity. The Court also held that section 5N concerns contractual duties of care and did not apply as the plaintiff was volunteering at the time of the incident.  

The Court accepted that the risk of suffering a serious injury from being struck by the lure if standing in its path would have been obvious to a reasonable person in the position of the plaintiff. The plaintiff argued that no one inquired into his experience of operating the gate, provided instructions or gave warning about the danger. However the Court found that the defendant’s failure to warn the plaintiff was no bar to the defence in section 5L of the CLA. 

The Court also found that the plaintiff’s injury was the materialisation of an inherent risk, for which section 5L of the CLA provided a defence to the claim, as the operating of the catching pen gate involved a significant risk of physical harm.

The defendant was found not liable to the plaintiff for the harm suffered as a result of the materialisation of the obvious risk of colliding with the lure.

Implications for you

This decision reinforces that section 5L of the CLA can be relied upon by sporting organisations where a person has volunteered to participate in an activity which did not involve physical exertion or skill. It also reinforces that a sporting organisation does not owe a duty of care to a plaintiff to warn of an obvious risk.  

Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780

Sophie Power

Sophie Power

Lawyer