In a recent decision of the New South Wales Court of Appeal, a professional jockey who suffered from serious injuries in a fall whilst racing has failed in his personal injuries claim against another jockey who had been found guilty of careless riding by stewards in relation to the incident.
Hari Singh was a professional jockey who was seriously injured whilst taking part in a race meeting at the Tamworth Racecourse on 14 August 2012. He was 27 years old when his injuries occurred.
The defendant/respondent to his claim, Mr Glenn Lynch was another jockey participating in the race.
Mr Singh (by his wife as his next friend) alleged that his injuries were caused by Mr Lynch riding his horse in such a manner so as to push the horse alongside him into the path of Mr Singh’s horse, resulting in Mr Singh’s fall and subsequent injuries.
Mr Lynch’s actions were investigated by the Racing Stewards and he was charged with careless riding contrary to the Australian (horse) Racing Rules. The Appeal Panel of Racing New South Wales upheld the Racing Stewards’ findings.
Mr Singh’s claim failed at first instance, with Justice Fagan of the NSW Supreme Court finding that Mr Lynch did not breach his duty of care to Mr Singh and that Mr Singh’s injuries were caused by the materialisation of an ‘obvious risk’ which arose in the course of a ‘dangerous recreational activity’ pursuant to section 5L of the Civil Liability Act 2002 (NSW) (‘the NSW Act’). Accordingly, Justice Fagan found that Mr Lynch was not liable in negligence for the harm suffered by Mr Singh.
Mr Singh appealed to the New South Wales Court of Appeal. The main issues subject to appeal by Mr Singh were:
- The finding that professional horse racing is a ‘dangerous recreational activity’;
- Whether Mr Singh’s injury was the result of the materialisation of an ‘obvious risk’ which occurred in the course of a dangerous recreational activity (and therefore provided Mr Lynch with a complete defence to any established negligence under section 5L of the NSW Act); and
- Whether Mr Lynch breached the duty of care he owed to other participants in the horse race.
Professional horse racing as a recreational activity
By majority, the NSW Court of Appeal found that the NSW Act did not by its language, structure nor legislative history provide a basis for excluding professionals involved in a sporting activity from the exemption from liability (i.e. complete defence) provided by section 5L of that Act. It is worthwhile noting that the definition of ‘recreational activity’ in section 5K of the NSW Act includes ‘any sport (whether or not the sport is an organised activity)…’
Further, by majority, the NSW Court of Appeal found that the statutory definition of ‘recreational activity’ cannot be read down by reliance on the ordinary meaning of ‘recreational’.
Materialisation of an obvious risk which occurred in the course of a dangerous recreational activity
By majority, the NSW Court of Appeal found that whilst the trial judge was wrong to conclude that Mr Lynch’s riding was merely careless and not reckless, thus making him liable in negligence, the risk of such riding was still obvious.
It is worthwhile noting that two of the appeal judges (Justice McCallum and Justice Simpson) found that the subject riding of Mr Lynch was aggressive and not merely careless, involving deliberate and persistent riding by him which caused Mr Singh’s fall and as such the defence under section 5L of the NSW Act was not established.
Breach of the duty of care owed to other jockeys
The Court of Appeal variously found that the riding by Mr Lynch was unsafe or grossly negligent.
Three of the five appeal judges found that the consequence of Mr Lynch’s breach of duty was that the defence under section 5L of the NSW Act was engaged and provided him with an exemption from liability in negligence.
By dissent, Justice McCallum and Justice Simpson each found that as the defence under section 5L of the NSW Act was not established, Mr Lynch was liable in negligence for Mr Singh’s injuries.
In summary, the Court of Appeal refused to depart from its earlier reasoning in Goode v Angland  NSWCA 311, a case also involving an injured jockey who failed (also at first instance and on appeal) in claiming damages against another jockey involved in the same race whom he alleged breached his duty of care, resulting in Mr Goode’s injuries.
Application to Queensland claims
Section 19 of the Civil Liability Act 2003 (Qld) (‘the Qld Act’) contains an almost identical provision to section 5L of the NSW Act.
Whilst there have been other cases involving recreational activities, to date, there has not been any judicial consideration of the exclusion/defence within section 19 of the Qld Act in the context of injuries suffered due to the negligence of another athlete/participant during a semi-professional or professional sporting activity.
Whilst each case turns upon its own facts, it will be interesting to see if the Queensland Courts follow the reasoning of the majority in the New South Wales Court of Appeal.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).