Goode v Angland

[2017] NSWCA 311

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Goode v Angland [2017] NSWCA 311

Hearing dates:

5 and 6 April 2017

Decision date:

07 December 2017

Before:

Beazley P at [1];
Meagher JA at [177];
Leeming JA at [180]

Decision:

Appeal dismissed with costs.

Catchwords:

TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5K, 5L – meaning of “recreational activity” – whether “any sport” includes professional horseracing

 

TORTS – negligence – where appellant injured during fall while racing as a professional jockey – where respondent a jockey in the same race – whether the primary judge erred in not finding that the respondent moved his horse in front of the appellant’s horse when it was unreasonable to do so

  EVIDENCE – use of photographic and video evidence – where the fall was captured on video by multiple cameras – whether primary judge impermissibly used video and photographic evidence to make findings as to how the fall occurred

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5D, 5F, 5I, 5K, 5L, 5M
Evidence Act 1995 (NSW), s 79

Cases Cited:

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; 324 ALR 355
Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130
Asim v Penrose & Anor [2010] NSWCA 366
Bankstown City Council v Zraika; Roads and Maritime Services v Zraika [2016] NSWCA 51
Beaton v McDivitt (1985) 13 NSWLR 134
Belna Pty Ltd v Irwin [2009] NSWCA 46
Blacktown City Council v Hocking (2008) Aust Torts Reports 81-956; [2008] NSWCA 144
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Dodge v Snell [2011] TASSC 19
Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32
FBHS (Aust) Pty Ltd v Stone Homes Pty Ltd [2014] NSWCA 312
Fitness First Australia Pty Ltd v Fenshaw Pty Ltd (2016) 92 NSWLR 128; [2016] NSWCA 207
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478
R v Ames [1964-5] NSWR 1489
Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39
Schmidt v Schmidt [1969] QWN 3
Schultz v McCormack [2015] NSWCA 330
Sharp v Parramatta City Council (2015) 209 LGERA 220; [2015] NSWCA 260
Townsend v O’Donnell (2016) 78 MVR 283; [2016] NSWCA 288
Warren v Gittoes [2009] NSWCA 24
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9
Yarrabee Coal Company Pty Ltd & Anor v Lujans (2009) Aust Torts Reports 82-024; [2009] NSWCA 85

Texts Cited:

J Goudkamp, Tort Law Defences (Hart Publishing, Oxford, 2013)
Ipp Committee, Review of the Law of Negligence Final Report, (2002)

Category:

Principal judgment

Parties:

Paul Goode (Appellant)
Tye Angland (Respondent)

Representation:

Counsel:
D Higgs SC; F Tuscano (Appellant)
J E Sexton SC; D A Lloyd (Respondent)

  Solicitors:
Ken Cush & Associates (Appellant)
Clyde & Co (Respondent)

File Number(s):

2016/235877

 Decision under appeal 

Court or tribunal:

Supreme Court

Citation:

Goode v Angland [2016] NSWSC 1014

Date of Decision:

22 July 2016

Before:

Harrison J

File Number(s):

2012/190052

Headnote

[This headnote is not to be read as part of the judgment]

The appellant was a professional jockey who suffered serious injuries when his horse fell in a race at Queanbeyan Racecourse. The respondent, also a professional jockey, was riding in the same race. The appellant claimed that his injuries, loss and damage were caused by the respondent’s negligence or breach of duty by riding in such a manner as to interfere with the appellant and his horse, causing the fall in which he suffered his injuries.

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.

The primary issues on appeal were:

(i) Whether s 5L of the Civil Liability Act 2002 (NSW) provided a complete defence on the basis that the fall was a manifestation of an obvious risk of a dangerous recreational activity;

(ii)   Whether the primary judge erred in impermissibly using his own interpretation of the photographic and video evidence; and

(iii)   Whether the primary judge erred in failing to find that the respondent changed direction or veered when it was unsafe for him to do so in a way that was unreasonable.

The Court held, dismissing the appeal:

In relation to (i):

Leeming JA (Beazley P and Meagher JA agreeing)

(1) Section 5L is properly regarded as a defence, and there is much to be said for dealing with the defence at the outset. [5], [185]

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128; Bankstown City Council v Zraika; Roads and Maritime Services v Zraika [2016] NSWCA 51; Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32; Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311; Schultz v McCormack [2015] NSWCA 330, cited

(2) The first limb of the definition of “recreational activity” in s 5K does not draw a distinction between sports participated in for recreational purposes and those participated in for professional purposes. Accordingly, horseracing is a sport which engages the first limb of the definition of “recreational activity” in s 5K, and s 5L applied. [5], [174], [211]

Belna Pty Ltd v Irwin [2009] NSWCA 46, Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361, considered

Dodge v Snell [2011] TASSC 19, not followed

In relation to (ii):

Beazley P (Meagher and Leeming JJA agreeing):

(3)   Care must be taken in relying on photographic evidence. However, in circumstances where the video and photographic evidence was taken contemporaneously with the running of the race and from a number of angles, the primary judge’s stated approach to the evidence was consistent with authority and his Honour’s findings did not disclose an impermissible use of that evidence. [105], [114], [224]

Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130; Beaton v McDivitt (1985) 13 NSWLR 134; Blacktown City Council v Hocking (2008) Aust Torts Reports 81-956; [2008] NSWCA 144; Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 7; Townsend v O’Donnell (2016) 78 MVR 283; [2016] NSWCA 288; Yarrabee Coal Company Pty Ltd & Anor v Lujans (2009) Aust Torts Reports 82-024; [2009] NSWCA 85, considered

In relation to (iii):

Beazley P (Meagher and Leeming JJA agreeing):

(4)   The appellant did not establish that the respondent intentionally moved his horse into the path of the appellant’s horse. He also did not establish that the respondent’s horse moved laterally at the relevant time other than in the ordinary course of the race. It was open to the primary judge to find that the respondent did not change direction or veer when it was unsafe for him to do so, or in a way that was unreasonable. [143], [159]

Judgment

1. BEAZLEY P: On 29 June 2009, the appellant suffered serious injuries in a fall which occurred while he was riding as a professional jockey in a 1460m race at Queanbeyan Racecourse. The appellant was riding a horse named Shot of the Rails. The respondent, also a professional jockey, was riding a horse named Port Gallery in the same race. The appellant claimed that his injuries, loss and damage were caused by the respondent’s negligence or breach of duty by riding in such a manner as to cause interference with the appellant and his horse, resulting in the fall in which he suffered his injuries.

2. The trial judge, Harrison J, rejected the appellant’s claim and entered a verdict for the respondent. The appellant has appealed against that verdict. Initially, he sought judgment in his favour and an order that the matter be remitted to the court below for the assessment of damages. However, at the hearing in this Court, the appellant submitted that, if the Court found that his Honour made a factual error in relation to the lateral movement of the horses, the only appropriate order was a retrial because substantial factual issues would need to be resolved by a trial judge hearing the witnesses and accordingly could not be resolved in this Court. The principles relevant to an application for a retrial were considered in Sharp v Parramatta City Council (2015) 209 LGERA 220; [2015] NSWCA 260 at [15]-[16].

3. The appellant’s grounds of appeal were, in summary, as follows:

(1)   Whether his Honour erred in using his own interpretation of the photographic and video evidence and impermissibly going beyond using the photographic and video evidence to comprehend the expert evidence: ground 1;

(2)   Whether his Honour erred in proceeding on the basis that there was no issue of credit involved in the respondent’s evidence, given inconsistencies in the evidence that he gave at a stewards inquiry and his evidence at trial: ground 2;

(3)   Whether his Honour erred in failing to find for the appellant on the basis of findings of fact made by his Honour: ground 3;

(4)   Whether his Honour made erroneous, inconsistent and irrelevant findings of fact: grounds 4-7;

(5)   Whether his Honour erred in finding that professional horse racing was a recreational activity within the meaning of the Civil Liability Act 2002 (NSW), s 5K and in failing to identify the specific obvious risk the materialisation of which caused the appellant’s harm for the purposes of s 5L: grounds 8-11; and

(6)   Whether his Honour ought to have made findings of fact as contended by the appellant: ground 12.

4. Notwithstanding the multiple grounds of appeal, the appellant, in oral argument, identified two central issues. First, whether his Honour erred in his critical finding of fact that the appellant shifted towards the respondent’s horse. The appellant contended that the evidence established the reverse, namely, that the respondent’s horse moved back in towards the rails after having initially shifted out. The appellant submitted that the factual finding for which he contended was supported by the photographic and video evidence.

5. Secondly, the appellant contended his Honour erred in his construction of the Civil Liability Act, s 5L. As Leeming JA explains, if s 5L applies, the appellant has no claim at common law in negligence. For that reason it is the logical, if not the required, starting point for consideration of the appellant’s claim. Leeming JA has also explained why the appellant’s claim is precluded by s 5L. I am persuaded that his Honour’s construction of the section is correct and add only brief observations in that regard, which I have found convenient to place at the end of my reasons. This enables me to set out the factual background at the commencement of my reasons to facilitate an understanding of the appellant’s claim. For convenience, I have then structured the judgment to consider the appellant’s claim, should the position be that it was not precluded by s 5L.

Factual background

6. The race in which the appellant was riding was Race 7 at the Queanbeyan Racecourse, which was the appellant’s last race of the day. The appellant had not previously ridden Shot of the Rails, but knew it did not have good form and he was not expecting to win or even do well in the race. Shot of the Rails was drawn wide and the appellant had no recollection of anything unusual about the race.

7. The accident occurred near the 1000m mark. The parties were in agreement as to the position of the following five horses leading up to the 1000m mark. Predicate, ridden by James Geppert, was in front of the others (but not leading the race), and Port Gallery, ridden by the respondent, was next. Close to the rail and a little further back was Dexter’s Angel, ridden by Brad Clark. The next horse was Shot of the Rails, ridden by the appellant. The appellant was not on the rails and in that regard could be sufficiently accurately described as being to the left of and further back than Dexter’s Angel ridden by Mr Clark. Betty be Good, ridden by Nathan Cumberland, was running last.

8. Apart from that general description of the position of the horses, the appellant and respondent did not agree on the events immediately prior to the fall or as to what caused the fall or why it occurred. The sequence of events leading up to and at the point of the fall was reduced to a chronology for the purposes of the appeal. After an agreed correction, the chronology was accepted by the respondent as accurately recording those events.

9. The fall, along with the events preceding and following it, was captured on video by cameras located at various points around the racecourse. Still photographs were derived from this footage. Both the still photographs and video footage were in evidence before the trial judge. In fact, the Court specifically convened at the British Horseracing Authority at High Holborn in London so that the videos could be viewed utilising simultaneous split screen projections of the race, together with slow motion and freeze frame functions. Each photograph bore an imprint of the time it was taken and it was agreed that the time references were accurate.

10. Still shots were taken from the video and tendered in evidence by the appellant. These formed Exhibits C, Y, Z, AA, AB and AC. Exhibit AC contained still shots from three camera angles placed together for ease of comparison. The still shots were referred to as the photographic evidence and it is convenient to retain that terminology. It was agreed that the photograph AC 32, taken at 16:55:53.80 depicted when the fall commenced.

11. The photographic evidence was the subject of comment in the evidence of the parties and with the video evidence was the source of the experts’ evidence. It was the subject of intensive reference by counsel during the hearing and with the video evidence was the subject of consideration by the trial judge. There was also extensive reference to this evidence during the course of the appeal.

12. There was certain technical language and horse racing jargon used in the proceedings as well as agreement as to certain features of horse riding. In this last respect, it was agreed that a stride for a galloping racehorse was about 7m and that a racehorse gallops at about 16m per second. In addition, a glossary of terms was provided to the Court and it is useful to set out those terms now, as they explain some of the evidence upon which reliance was placed during the hearing:

Carnage	Horses racing a little bit erratically or tightening.
Full run	An area of sufficient width for a horse to run safely.
Good horse	An area into which there is enough room for a horse to enter or improve. A space into which a horse can comfortably fit.
Length	The length of a horse from nose to tail. Approximately 3m.
Improve	To move forward relative to other horses.
Mount	A racehorse.
Overracing	The tendency of a horse to run forward in a manner that needs to be controlled.
Rightful running	A run into a space which a jockey is entitled to make.
Roll in	A lateral movement towards the rails.
Roll out	A lateral movement away from the rails.
Shift	A lateral movement.
Shift in	A lateral movement towards the rail.
Shift out	A lateral movement away from the rail.
Stride	The stride of a horse in full gallop measured at approximately 7m.
Two lengths rule	A rule of practice that a horse should not cross in front of another horse unless it is two lengths clear measured from the nose of the leading horse to the nose of the trailing horse.

13. The last term in the glossary, the “two lengths rule”, was also the subject of a diagrammatical description as follows:

It is important to note that the diagram was relied upon to explain the rule and did not depict the position of the horses at any time during the race.

14. The incident had been the subject of a stewards inquiry conducted in March 2010 by Racing NSW. Both the appellant and the respondent gave evidence at that enquiry, as did two other riders, Mr Cumberland and Mr Clark. The video of the race was played at the inquiry. The inquiry concluded that the fall of the appellant’s horse could not be attributed to rider error. The inquiry found that the appellant’s horse’s inclination to overrace resulted in it improving into an awkward position, which was available as the respondent’s horse had momentarily shifted position. The inquiry found that although the respondent’s horse shifted back to reassume its position, it could not:

“… be satisfied to the required standard that the fall can be attributed to any negligence on the part of [the respondent], in particular, and his riding of [his horse] at that stage.”

The evidence

Appellant’s evidence

15. The appellant had told the stewards inquiry that his horse was “overracing a touch. I came back. I know it did get tight and the next minute I was down”. As noted in the glossary, the reference to “overracing” was a reference to the horse being unsettled, with a tendency to run forward in a manner that needed to be controlled. The term was also explained in the course of oral submissions as meaning that the horse “wants to race – run faster than the jockey would allow it so he could comply with the rules”.

16. The appellant told the inquiry that when he “saw the run produce”, that is, when he saw the gap between the respondent’s and Mr Clark’s horse, he “just literally let the horse improve to be there and then ... it just got tight and that’s when I came down”. The appellant agreed that it was his intention to “improve into” the position between the two horses. He also explained that his mount “was then forward into the run and then unfortunately [the respondent’s] horse has just shifted in a touch and then that’s when I’ve come down”. He described the gap as being “a good horse”, which he said had been there for “a good few strides”. At the stewards inquiry, the appellant did not say that he had called out to the respondent as the respondent’s horse shifted back in.

17. The appellant made a statement dated 5 October 2015 for the purposes of his damages claim in the Supreme Court proceedings. In that statement, he said that when he came out of the barrier, he was sitting fairly close to the back of the field. Nothing unusual happened until the horses approached the 1000m mark. At that point, he saw two horses ahead of him, one being the respondent’s horse ahead and to his left. The other horse was ridden by Mr Clark and was on the rails. The appellant said that both horses were about two lengths ahead of his mount and were “virtually side by side”.

18. According to the appellant, he saw the respondent’s horse “move out to its left”, leaving a gap between the respondent’s horse and Mr Clark’s horse. The appellant described that gap as being “a good horse”, meaning a space into which another horse might safely advance or “improve”. The appellant also described the respondent’s horse as having “shot off a touch”, which he explained, in cross-examination, meant that the respondent’s horse had moved away from the inside running rail. The appellant said that at that time, the respondent’s horse was “a good three to four horses from the rail”. The appellant decided to improve his horse’s position by moving into the gap and remained in that position “for at least three or four strides”.

19. At that point, the appellant said he saw the respondent’s horse “shift back to its right closing the gap between his horse and Clark’s horse”. The appellant said that the respondent did not look over his shoulder before moving his horse back towards its right. The appellant said that he called out to the respondent when the respondent commenced to move his horse back into the gap. The appellant said that he heard the sound of his horse’s hooves come into contact with the respondent’s horse’s hooves and his horse stumbled and fell to the ground.

15. In cross-examination, the appellant said that his horse commenced to overrace approximately 300m after the start, namely, at about the 1100m mark. The appellant denied that he had had difficulty controlling the horse, but agreed that he had to stand in his stirrups to control the horse. The appellant agreed that his horse had stumbled a few seconds before the fall, and that stumble was due to overracing and was not the result of any interference. He estimated that this stumble had occurred about eight strides before the fall and that it took a stride or two to recover. He agreed that after his horse recovered, it was overracing. On the evidence, eight strides would typically be a distance of about 50-60m. The appellant agreed that in the few seconds before the fall, his horse was throwing its head in the air. The respondent gave evidence that this signified that the horse was overracing: see below at [30](14).

16. The appellant accepted in cross-examination that when horses are running they do not run in an absolutely straight line and he also agreed that it was a common occurrence in races that horses shift either in or out, that is, they naturally move laterally. The appellant agreed that it was:

“… part and parcel of horse racing, particularly when horses are racing around a curve, that they will move laterally relative to one another to some extent”.

22. He also accepted that the possibility of a horse shifting one way or the other during a race and thus interfering with another horse was a “day-to-day incident of horse racing” and that this was obvious on the video.

23. The appellant was further cross-examined, as follows:

“Q. Would you agree with the proposition that in order to safely advance into a gap between horses in front …

…

… You need more space when the horses are racing on a turn than on a straight section of a course?

A. Yes.

Q. As we have discussed before, as a jockey, you understand that as you are advancing into a gap between two other horses, one or other of the horses, or both of them, might shift laterally?

A. Yes.

Q. That can occur whether or not the jockey riding the horse intends that movement to occur?

A. Yes.

Q. Obviously, part of the job is to keep the horse running straight; right?

A. Yes.

Q. But it is not always possible to do so, is it?

A. No.

Q. Horses have got minds of their own, have they not?

A. Yes.”

24. The appellant disagreed that the gap into which he advanced between the respondent’s horse and Mr Clark’s horse was not sufficiently wide to do so safely when racing around that particular curve at the Queanbeyan racecourse.

25. The appellant was cross-examined about his evidence before the stewards’ inquiry. He agreed that he had told the steward’s inquiry that his horse was overracing and said that this had occurred about 300m from the start of the race. The appellant also agreed that “over racing” means that a horse “is unsettled … [a]nd that it is exhibiting a tendency to race forward in a manner that needs to be controlled by the jockey”.

26. The appellant was cross-examined as to what he meant when he had said, at the stewards inquiry, that the respondent’s horse “has just shifted in a touch”. He agreed that he was intending to convey that the respondent’s horse “had shifted in, but not very much”. However, in his cross-examination he denied that the shift was “very sligh[t]” or that it was not of a sufficient lateral distance to cause him to call out to the respondent. He also denied that the respondent’s horse was following the same line as the horse in front of it or that that was what was depicted on the video.

The respondent’s evidence

27. The respondent had also given evidence at the stewards inquiry. His evidence at the inquiry was essentially the same as his evidence at trial, namely, that he had not intentionally moved his horse back in and that to the extent that the horse did shift back in, it did not move very far. He accepted that his horse had got “shot out for a little bit” at the 1100m mark. He said that he “probably rolled off half a horse”. That left about “half a horse” between the respondent’s horse and Mr Clark’s horse. In particular, in response to the steward’s question:

“… did your mount shift back to resume its position or it was your intention to shift back in?”

he said that on the turn where the accident occurred:

“… you just get shot back on that corner and the next minute you know you’re back into normal racing pattern because you just to get shot out for that one, two strides.”

28. The respondent also gave the following evidence at the stewards inquiry:

“Yeah, I don’t really believe that there was a full run. Like, we were all coming into the first corner and every horse, every race – you can nearly say every horse does get shot off a bit and I just give myself a little bit of extra room because there was horses getting in a little bit of trouble in front and once we sort of got around the corner, I wasn’t aware that [the appellant] was there and I didn’t think anyone would have come up to my inside and that’s when, like I wouldn’t – I didn’t give – I didn’t think – I believe I gave a full run for a horse to approach my inside and that is when we sort of got back around the corner and that’s when I come back in, my half horse.”

There was some dispute as to what this evidence conveyed. The appellant maintained that the respondent believed he “gave a full run for a horse”. I do not read the passage that way. Rather, I consider the respondent was saying that he did not believe he “gave a full run for a horse”. This is consistent with his other evidence.

29. The respondent made a statement on 14 August 2015 in preparation for the hearing of the appellant’s damages claim. In giving his independent recollection of the race, he said he did not know that there had been a fall until after the race. He did not feel the appellant’s horse’s hooves clip the heels of his mount, although he accepted that this may have occurred. He said he did not hear the appellant call out his name and also said that his own mount was not racing erratically and he had no difficulty controlling it. He maintained at all times that he did not move his horse back in having moved out when taking the curve. The respondent also accepted, after having viewed the video of the race, that the appellant “got up to the inside” of him, but maintained that he was not aware that the appellant was there.

30. The respondent then commented upon the video, describing what he observed on the video as follows:

“12.   As I approach the [1100] metre mark, I shift out approximately half a horse. This is not uncommon as you approach the [1100] metre turn at Queanbeyan Racecourse because as I have said above the turn is tighter than most turns on other race tracks. In my experience of riding there, jockeys generally allow their horses a bit more space than you would on another race track in the event other riders get shot out as they negotiate the turn.

13.   As I approach the 1100 to 1000 metre mark, just after the turn, my horse maintains its racing line. At no time do I cause it to shift in. Around this point I am approximately 2 lengths ahead and to the left of [the appellant] and parallel and to the outside of Brad Clark. Brad Clark is positioned approximately 2 lengths ahead and to the right of [the appellant], closest to the railing. At this stage the gap between myself and Brad Clark is approximately half a horse.

14.   Immediately before the fall, Shot of the Rails is over-racing. I say this because you can clearly see on the video footage [the appellant] is attempting to restrain his mount by pulling back on the reins and standing up in the saddle. His horse is indicating signs that he is over-racing by throwing its head up into the air … Horses who are over-racing tend to show signs of not being in a comfortable racing position by throwing their head up, bolting on the rider who find difficulty settling their horse, resulting in a rider being unbalanced and standing up in the saddle.

15.   Shot of the Rails improves into a position, between myself and Brad Clark, which is very tight …

16.   Immediately before the fall, I was maintaining my racing line. After shifting out at the [1100] metre mark, at no time did I shift to the inside of the horse in front. Brad Clark’s horse shifted out, away from the rails, which is common on this particular turn of the Racecourse.”

31. In cross-examination, the respondent described the curve as commencing at the 1400m mark, continuing to the 800m mark. He said that the “sharpest” part of the curve was from the 1100m mark to the 1000m mark. He conceded that in para (13) of his statement, set out above, he said that the turn had finished at the 1000m mark. The cross-examination then continued:

“Q. So if you did shift in after the 1100-metre mark, then it wasn’t anything to do with the turn, was it? It was you steering your horse back in?

A. I never steered my horse in.”

32. The respondent identified as contributing factors to the fall the fact that Mr Clark’s horse moved off the rails, and the fact that the appellant’s horse was overracing.

33. The respondent was also cross-examined extensively on the photographic evidence. Relevant to a “concession” alleged by the appellant, the respondent accepted that photograph AA 14 showed that Mr Clark’s horse was to the right of his horse and about three quarters of a length back. His evidence continued:

“Q. … that would suggest that [the appellant’s] horse has just got its nose in the gap between you and Clark?

…

Q. Is that right?

A. Well, yeah. A possibility, yeah.

…

Q. … looking at [photograph] 11, that would suggest at that point [the appellant’s] mount has just got its nose—

A. Just.

Q. Do you agree with that?

A. Just, yeah.

34. The respondent said that his horse having moved out, he maintained his line. He denied that his horse had moved back in at the point where the fall occurred, but agreed that a few strides beforehand his horse had moved “fractionally” back in. As he explained, he said that he had not moved his horse out or in, rather, “that’s the way my horse took the corner”. He said that he was “unaware … that [the appellant] was there and there was no call for me to be aware … and that’s when the incident happened”.

Mr Clark’s evidence

35. Mr Clark did not give evidence at the trial by way of statement or otherwise. He had given evidence before the stewards inquiry, where he said that at Queanbeyan “you do get shot off at [the] turn and that but I thought I was pretty much on the rail all the way around”. He said he did give himself “a little bit of room on the rails”, but that he did not “[shift] too far off the rail at all, if any”. He described the respondent as being “quarter of a horse, half a horse” away from him leading up to the fall.

Mr Cumberland’s evidence

36. Mr Cumberland was riding Betty Be Good and at all times was running last in the race. Mr Cumberland did not give evidence at the trial. He was called before the stewards inquiry in which he gave evidence of what he recalled of the incident as follows:

“I don’t remember it too well, but I do remember I was outside [the appellant] and it looked like his horse was overracing and he just got his head between [the respondent] and whoever was inside [the respondent] and I could see [the appellant] trying to restrain and then he just went down. But where I was, it was nobody’s fault.”

37. He agreed that the appellant was “obviously in a bad position”. Having viewed the video, Mr Cumberland stated:

“… It’s just a bad track and a big field and it was a bad start. There was a little bit of carnage at – like I said before, I think [the appellant’s] horse got overracing, [the respondent’s] horse might’ve drifted off a little bit, [the appellant’s] horse kicked up in there and he had troubles bringing it back.”

38. Mr Cumberland said that he was not aware of the respondent shifting as he was “getting into that 1000 metre turn”. He said “[a]ll I was aware was when [the appellant] was in trouble”.

39. The appellant and respondent each adduced expert evidence. In each case, their evidence was based solely upon their interpretation of the video and photographic evidence.

Mr Killian’s evidence

40. Brian Killian, who was retained by the appellant, was formerly a jockey and had extensive experience as a steward during which time he had been required to watch thousands of DVDs, tapes and films of horse races for the purpose of adjudicating on possible breaches of the Australian Rules of Racing, as well as conducting inquiries directed at determining or adjudicating on whether there had been a breach of those rules.

41. Mr Killian’s view, in summary, was that it was “very clear” from the photographic evidence that at 16:55:50.40 there was “clear running” between the appellant’s horse and the respondent’s horse, and that just before the fall at 16:55:51.70, the respondent turned his horse’s head inwards and very shortly after that the fall occurred. He identified the photograph taken at 16:55:50.40 as AC 15 and the photograph taken at 16:55:51.70 as AC 21. It is appropriate to observe at this point that both these photographs were taken before the 1100m mark becomes visible in the photographs. He identified the fall as occurring at 16:55:55.15. He said that he did not believe that the appellant’s horse was overracing. Mr Killian considered that the respondent shifted his mount inwards causing the appellant’s horse to be cramped and to lose its rightful running.

42. In response to a suggestion that when racehorses were galloping they did not run in an absolutely straight line, Mr Killian said that if a horse was not “educated”, as was the case in this race, they were inclined to “move around a little”.

43. Mr Killian was cross-examined as to whether the “two lengths rule” applied when a rider “intentionally attempts to shift ground”. Mr Killian responded that when a rider:

“… intentionally attempts to shift ground, the onus is on him to leave enough racing room for the horse he’s crossing’s front legs. That’s the interpretation that’s taken all over the country.”

44. Mr Killian was also cross-examined as to what he observed on photograph AC 19 taken at 16:55:51.20. He identified a clearance between Mr Clarke and the respondent and observed that at that point, the appellant was “back … not up inside of [the respondent’s] heels”. He identified the point at which the respondent turned his horse’s head inwards as being about 50-60m before the fall. It is appropriate to observe that this cross-examination was relevant to the respondent’s “concession” that the appellant’s horse got its nose in the gap between Mr Clark’s horse and his horse referred to above at [33].

45. Mr Killian also agreed in cross-examination that the distance between the point where there was a gap and the point at which he identified as the respondent having deliberately shifted his horse in, was about “a good 30 metres”. He further agreed in cross-examination that the appellant was in an upright position compared to the other riders, and although he identified that as being the “English style of riding”, he also accepted that it was “consistent with a jockey attempting to restrain a horse that was over-racing”.

46. Finally, Mr Killian accepted that the photographs AC 30-36 (being the photographs leading up to and at the commencement of the fall) demonstrated that the relative position of the respondent and Mr Geppert compared to the running rail and the other horses in the field remained “relatively the same”, apart from the position of the appellant.

Mr Williams’ evidence

47. Mr Williams, also retained by the appellant, had previously managed a number of racing stables and, between 1995-2010, undertook a variety of roles with Racing Victoria, including chairing race meetings, managing a panel of stewards and investigating breaches of the relevant racing rules.

48. Mr Williams identified from the photograph AC 17 taken at 16:55:50.81 that the respondent’s horse had moved out and had left room for one horse to his inside and to the outside of Mr Clarke’s horse. He agreed in cross-examination that this was more than 100m before the fall. He said that he could see in photograph AC 17 that the respondent was deliberately turning his horse’s head, which was discernible because his arm was pulling back on the reins to achieve that. He accepted, however, that there was no other point where he could identify from the photographs that the respondent’s arm was pulling back.

49. He identified photograph AC 31 at 16:55:53.61 as where the appellant was “in trouble”. He also described that photograph as depicting the beginning of the fall, although he accepted that photograph AC 34 at 16:55:54.20 showed the start of the fall. He also agreed with the proposition that:

“The sequence of photos from photo 18 through to photo 29 shows that [the respondent’s] horse is following the same racing line as the horse being ridden by [Mr Geppert].”

50. He was asked about the position of the horses as depicted in AC 25 taken at 16.55.52.39, and said that the gap shown in that photograph was a gap which could be “safely improved into on a corner”, but added “you’d be game but you could do it”. He thought that in that photograph, the appellant was already “up the inside” of Mr Clark’s horse, but agreed that the appellant was “not up inside” the respondent’s horse. He also agreed that it was apparent that at that point, that is, at 16:55:52.39, the respondent’s horse had just reached the 1100m mark and the appellant had not quite reached that point.

51. Mr Williams said that the gap he had identified in AC 17 was gradually closing as the respondent was moving in, but said that the gap did not really close and that the gap between the respondent and Mr Clarke probably closed after the fall.

Mr Burnett’s evidence

52. Mr Burnett, who was retained by the respondent, was an experienced jockey. He was a Committeeman of the New South Wales Jockeys’ Association, including as its President between 1970 and 1973. In 2014, he was elected to the Tasmanian Racing Appeals Board.

53. According to Mr Burnett, the turn at which the appellant’s horse fell was “very sharp and what I would describe as a dangerous turn”. Mr Burnett was also of the opinion that the first stumble by the appellant’s horse was “followed by a significant shift to his left”. Mr Burnett expressed the opinion that this resulted in the appellant’s horse clipping the heels of the respondent’s horse and falling. Mr Burnett said:

“It is my opinion [the respondent] was in fact following the angle of the turn as best he could, whereas [the appellant], due [to] the difficulties he was experiencing controlling Shot of the Rails, was in fact moving in the opposite direction the turn dictated, resulting in Shot of the Rails in essence meeting Port Gallery at a bad angle, which resulted in the contact with Port Gallery’s heels and Shot of the Rails falling.”

54. Mr Burnett was cross-examined as to the basis upon which he was asked to give his opinion. He said that he understood that, having regard to the instructions he was given, including various factual assumptions as a “guide as to what had occurred in the race”, that he was “to look at the films and the other evidence and then to come to a decision … using my expertise”. He said that expertise was using “his experience as a retired jockey”.

55. Mr Burnett was extensively cross-examined on the photographs. He was also challenged on his comparative experience, it being suggested to him that he had nothing like the equivalent experience of Mr Killian, who had “vast experience both as a jockey and as a steward”. Mr Burnett acknowledged Mr Killian’s “vast experience”, but pointed out that he, Mr Burnett, was on the Tasmanian Racing Appeals Board “and was privy to judging videos … to come to a decision on different issues”.

56. Having been in court when Mr Killian gave evidence, Mr Burnett was further challenged as to whether he would accept Mr Killian’s evidence as the preferred account as to what happened in the race. Mr Burnett said:

“A. Can I be totally honest here?

Q. Yes.

A. I was shocked and disappointed at listening to Mr Killian’s evidence. From a man of his experience I was quite surprised and I can only say that I would put it down to his age.”

57. A similar attack was made upon Mr Burnett’s experience compared to that of Mr Williams. Mr Burnett said that, unlike Mr  Williams, he had never been a steward, but that he would not defer to Mr William’s views as to how “to read the video”:

“Because I’ve had a lot of experience in the stewards’ room as a jockey over my years defending myself in careless riding charges or any other charges that might have been levelled at me, and I’ve had to study the videos to defend myself.”

58. The cross-examination continued:

“Q. That is how you’re able to arrive at a defence of [the respondent]?

A. That plus my experience of riding in I think roughly about 6,000 races.

…

Q. Mr Burnett, would you view be that in a situation where one jockey may be facing disqualification, it’s appropriate to put both sides of the story?

A. Of course.

Q. In providing your opinion for the court, did you see it as at least part of your role to advance a case contrary to that put forward by Mr Killian and Mr Williams so that the Court could weigh up which side it came down on, as in a stewards’ inquiry?

A. Can I answer that in this way … that when I’m asked to give an opinion on an incident such as this, I realise that I may have to defend it in a court of law under oath. For that reason, I do not defend anyone. What I do is I look at the facts and I come to a decision as to what I believe happened, whether it is in favour of the person that I’m maybe asked to represent, in a sense, or the person that’s the plaintiff or the defendant. I don’t have a preference for either. I look at the facts that that’s what I give my opinion on.”

59. Mr Burnett was of the opinion that there was always room for the appellant’s horse to “move inside” the respondent’s horse. In that regard, he considered that there was a gap of about two and half horses’ width between them. He was asked whether he put the fall down to the stumble that had occurred a few seconds before the fall. He responded:

“A. No. I put the fall down to the fact that at no stage in the race in my opinion was [the appellant] in total control of Shot of the Rails and that was exacerbated by the stumble. If you look at the film clearly, you will see that throughout the race because he is trying to control his mount [the appellant] is continually moving to his left and actually towards Port Gallery and eventually he ends up on Port Gallery’s heels. It is also my opinion that once [the respondent] got behind Predicate, he maintained the same distance from the inside running rail throughout to the fall.

HIS HONOUR

Q. So in summary your opinion is that there was always room for a horse to—

A. Between—

…

Q. There was always room for [the appellant] to advance as he said but his horse drifted out and into the path of [the respondent] who continued to hold his line.

A. Correct.

Q. That’s your opinion.

A. That’s my opinion. Can I just expand a little more on that, your Honour? [The appellant] had ridden that track many times and I believe that at no stage in the race did he ever want to enter the run that was available to him because he knew what was coming up on that turn and he was in trouble controlling his mount and for that reason I don’t think he ever really wanted to go into that space that was there available for him because he wasn’t in full control. It would be a dangerous situation to be in his circumstance.

[COUNSEL]

Q. That view that you have just expressed is important to your opinion.

A. Absolutely.”

60. Mr Burnett did not agree with the respondent’s version of how he had raced “with regard to him shifting”. He was asked in re-examination in what way he disagreed. He said:

“A. When [the respondent] shifts out in the early stages of the race, he actually comes back slightly and then he ends up more or less directly behind Predicate ridden by Geppert …

…

… He continued that line throughout the race up to, during and after the fall. If you take a line through [the respondent] and Mr Geppert, which I make clear in my statement, and you watch their movements and then you go back and follow the movements of [the appellant], you will see that in relation to [the respondent], [the appellant] moves significantly to his left, placing him in danger of contacting Port Gallery’s heels and that is what happened. As I said earlier in my statement to [Counsel], he was in a great deal of difficulty controlling his mount, exacerbated by the stumble.”

Trial judge’s reasons

61. As is apparent from the exposition of the background facts, much of the evidence centred on what was discernible from the video and photographic evidence. His Honour noted, at [10], that even though the photographic evidence was “extremely helpful”, it could not provide “a single unambiguous answer” to the liability issues raised in the case. This was due in part, in his Honour’s opinion, to the dynamic nature of horseracing and the fact that the video and photographic evidence did not foreclose the possibility of varying opinions about what it reveals. In particular, his Honour was of the view that the video and photographic evidence must be considered having regard to the evidence of the appellant and the respondent, as well as other lay and expert evidence.

62. His Honour noted, at [11], that there was little in dispute between the parties other than competing interpretations of what the footage of the race revealed. In his Honour’s view, a “significant consequence of this is that the proceedings have not given rise to any issues of credit between or among the parties, the lay witnesses or the experts”. Rather:

“… all witnesses have done their best either to recall from memory what happened during the race or to offer honest opinions about what the video of the race actually reveals or both.”

63. His Honour noted, at [103], that the respondent “uncontroversially” accepted that the relevant risk was both foreseeable and not insignificant for the purposes of the Civil Liability Act, s 5B, and that the factual question was whether the appellant could establish that the respondent rode his horse in an unreasonable manner in all of the circumstances.

64. In the section entitled “Consideration and findings”, the trial judge dealt first with the appellant’s evidence that he called out to the respondent when he saw the respondent’s horse moving back in. Although his Honour considered that whether or not the appellant did call out was not relevant to the question of the respondent’s liability, he recorded that he was not satisfied that the appellant had, in fact, called out. His Honour noted, at [118], that the appellant had not raised this suggestion at the stewards’ inquiry and observed that he:

“… was left with the very distinct impression that [the appellant] was himself only faintly wedded to the strength … of his evidence about this.” (Red 63)

His Honour further observed that although it was in the respondent’s interest to deny that any such calling out occurred, he found the denial convincing.

65. Notwithstanding the observations he had made at [10], his Honour nonetheless observed, at [119], that:

“I have found the video and screenshots taken of the race to be very helpful and instructive. I have taken the opportunity to view the video repeatedly on several occasions. I have correspondingly examined the screenshots and assessed the experts’ opinions that refer specifically to various aspects of this evidence. I am not an expert in assessing or analysing what such video material or still photographs is said to reveal about a professional horserace. I have, however, utilised and referred to the photographic material in detail as an aid to understanding what the respective experts say that it demonstrates.”

66. His Honour, at [121], considered that it was “patently clear from the video” that any gap into which the appellant was seeking to improve “[did] not close suddenly or even quickly”. Rather, his Honour considered that the gap appeared “to close over quite some distance [from] approximately 16:55:49.79 or so until the fall commencing at about 16:55:53.80”. The photograph recorded at 16:55:49.79 was photograph AC 12. The photograph recorded at 16:55:53.80 was photograph AC 32. His Honour further observed, at [121], that the appellant’s expert, Mr Williams, had stated that the gap had closed “gradually” and that he had been clear that “it was not his opinion that the gap did not close until the moment of the fall”. By contrast, the respondent’s horse had rolled out away from the rails “relatively quickly” at 16:55:50.41, depicted in photograph AC 15, a move which widened the gap for the appellant. His Honour stated that Mr Williams’ opinion that the gap was “gradually closing” accorded with his own view “independently formed from viewing the video of the race”.

67. His Honour, at [122], next referred to Mr Williams’ opinion that the gap between the respondent’s horse and Mr Clark’s horse did not really close so that the appellant could no longer safely “intrude” into it. Mr Williams thought that the gap between those two horses probably closed after the fall. Again, his Honour stated that this accorded with his own viewing of the video. Likewise, his Honour considered that Mr Williams’ evidence concerning the lateral distance of between one and a half and two horses that the respondent’s horse shifted back in must also have occurred gradually, consistently with Mr Williams’ other evidence, and stated that his own viewing of the video led him to the same opinion.

68. His Honour noted, at [122], that as the horses were taking a turn and this had been captured on a stationary camera, the video might give “the potentially misleading impression” that all horses were moving towards the rails. His Honour further added that, on this point, he preferred the opinion of the expert witness, Mr Burnett, who was of the view that:

“… once [the appellant] got behind Predicate, he maintained the same distance from the inside running rail right throughout to the fall.”

69. At [123], his Honour stated that he was unable to accept Mr Killian’s opinion that it was “clear” that the respondent’s horse shifted back in or “that it happened intentionally”. In his Honour’s view, the respondent’s horse appeared to:

“… hold its line … and that the gap into which [the appellant] proposed or hoped to improve closed gradually …”

70. His Honour, at [124], again by reference to the video, expressed his view that the respondent’s horse appeared to be “well separated from Mr Clark’s horse in the fractions of a second following the fall”. He considered that this could be seen on the video at 16:55:54.79. His Honour considered that at the point when the appellant’s horse goes down, “there is … revealed what appears to be a gap of sufficient width into which [the appellant’s] horse could have continued safely to improve but for the fall”.

71. His Honour observed, at [125], that as best understood by the lateral view video and screenshots, “at no time does the nose of [the appellant’s] horse get ahead of the tail of [the respondent’s] horse”. Instead, his Honour accepted the respondent’s submission that:

“… all references in the evidence to [the appellant’s] horse advancing or improving into a run or to being between Mr Clark’s horse and [the respondent’s] horse have to be understood as meaning that [the appellant’s] horse was advancing on a line directed to taking up a position between those horses but that it never actually succeeded in attaining or reaching a position between them.”

72. His Honour found, at [126], that throughout the gradual process of the gap closing, the appellant’s horse was “over racing” and was, as a result, gaining ground on the respondent’s horse. His Honour considered that that could be seen from the lateral view screen shots and the video between 16:55:51.63 and the fall. His Honour found “as a fact” that the appellant “was not able, despite his attempts and without fault on his part, to contain or restrain his mount”. This finding, in his Honour’s view, had two consequences. The appellant:

“… was not able to prevent his horse moving ever closer to the gradually narrowing gap between Mr Clark and [the respondent] and was equally unable to prevent his horse in effect running into the rear legs of [the respondent’s] horse.”

73. His Honour considered that this was consistent with Mr Cumberland’s evidence at the stewards inquiry, namely, that it looked like the appellant’s horse was:

“… over racing at that point ‘and he just got his head between [the respondent] and whoever was inside [the respondent] and I could see [the appellant] trying to restrain and then he just went down.”

74. His Honour observed that although he was not influenced by the stewards’ decision, he considered that their description of the appellant’s horse “improving into an awkward position” was apt. However, his Honour did not agree with the stewards’ suggestion that the appellant had improved to that awkward position. In his Honour’s view, it was clear that the appellant’s horse “was never between these other two horses leading up to the fall” (trial judge’s emphasis).

75. His Honour found, at [127], agreeing with Mr Burnett’s opinion, that the appellant’s horse “drifted slightly away from the rails at the point immediately preceding the fall”. This “modest outward movement”, as his Honour described it, appeared to commence at about 16:55:51.20, depicted in photograph AC 19. His Honour held that:

“It is that movement, in combination with [the appellant’s] horse advancing uncontrolled upon [the respondent’s] horse, that brought them into contact.”

76. His Honour, at [128], rejected Mr Killian’s opinion that the appellant had control of his horse just prior to the fall. Rather, he preferred Mr Cumberland’s evidence to the contrary, Mr Cumberland being “in a good position to assess this”, and who gave evidence to the contrary of Mr Killian’s opinion. His Honour considered the fact that the appellant was overracing in the seconds leading up to the fall did not leave room for the suggestion that he had regained control in a very short space of time before the fall occurred.

77. In reaching this conclusion, he relied on the fact that the appellant was standing “very high” and “somewhat awkwardly” in the saddle, as evident in the video footage between 16:55:51.83 (at which point the 1100m marker is visible) and 16:55:54.00 (less than a second before the 1000m marker becomes visible). In fact, his Honour endorsed the opinion of Mr Burnett that “at no stage of the race was [the appellant] ‘in total control’ of his horse”.

78. At trial, attention was given to the status of what is known as the “two lengths rule” or “two horse rule” (see above at [12] in glossary of terms). In his judgment at [69], his Honour set out the evidence of one expert witness, who described the rule as:

“… an unwritten convention concerning when it was safe for a jockey to move a horse across the path of another horse … when a jockey intentionally attempts to shift ground, the onus is on him to leave enough racing room for the front legs of the horse that is being crossed”.

79. His Honour concluded, at [129], that “whatever be the status of the … rule”, no rider is permitted to shift or veer in front of another horse unless it is safe to do so. His Honour then found “as a fact”, at [129], that:

“… [the respondent] did not at any time relevantly change direction or veer or shift across [the appellant’s] path when it was unsafe to do so in breach of [the two lengths] rule or unreasonably having regard to the relative positions of each horse.”

80. His Honour concluded, at [130], that:

“… [the respondent] was not negligent in the respects alleged or at all. He did not breach his duty to [the appellant]. He did not ride his horse in a way that caused or contributed to [the appellant’s] fall. Specifically, to the extent, if at all, that [the respondent’s] horse came in towards the rails and closed or narrowed the gap into which [the appellant] was hopeful of improving, it was not causative of what happened to [the appellant]. The fall was caused, despite any such lateral movement of [the respondent’s] horse, by [the appellant’s] horse running uncontrolled into the rear of [the respondent’s] horse where the animals’ legs came into contact.”

81. His Honour nonetheless considered the issue of contributory negligence and held that although the appellant’s horse was overracing at the time of the fall, it was not caused by anything within his control or by anything that should have been within his control. In this respect, his Honour concluded, at [131], that:

“[The appellant’s] horse moved into a position that caused the fall in circumstances where [the appellant] could have done nothing to prevent it from doing so.”

Consideration

82. Grounds 1-7 and 12 of the appeal were directed to his Honour’s factual findings and those findings were the focus of oral submissions in this Court. As noted above, at [4], the appellant identified the lateral movement of the respondent’s and appellant’s horses as the critical factual issue.

83. As is apparent from the review of the evidence, this case was intensely fact-dense, having been heard over a period of 14 days. Having set out the evidence in some detail, it is convenient to approach the issues, including the issues set out above at [3]-[5] and a number of issues that arose in the course of argument, in the following order:

1. First, whether his Honour erred in using his own interpretation of the photographic and video evidence: ground 1.

2. Secondly, whether his Honour erred in proceeding on the basis that there was no issue of credit between the parties: ground 2.

3. Thirdly, whether his Honour erred in relation to the ‘fact finding issues’ arising out of appeal grounds 3-7 and 12, namely:

1. Whether the appellant had established that the respondent had intentionally moved his horse and if so when, how far and at what stage of the race.

2. Whether the respondent made a “concession” which in effect constituted an admission that the appellant’s horse had its nose between his horse and Mr Clark’s horse.

3. Whether the appellant had proved that the respondent had breached the rules of racing.

4. Whether the primary judge had made inconsistent findings in [122] and [127] of his reasons.

5. Whether his Honour erred in failing to find for the appellant on the basis of findings of fact made by his Honour.

6. Whether his Honour made erroneous findings of fact.

7. Whether his Honour should have made the findings of fact for which the appellant contended.

4. Fourthly, whether his Honour erred in finding that professional racing was a recreational activity within the meaning of s 5K of the Civil Liability Act: grounds 8-11.

First issue: photographic and video evidence

84. The appellant submitted that the trial judge went beyond using the video and photographic evidence to comprehend the expert evidence and impermissibly used it to develop his own interpretation of how the accident occurred, an error which infected all of his subsequent reasoning.

85. The respondent submitted, that, having regard to the manner in which the case was conducted in the court below, it was not now open to the appellant to criticise the trial judge for having regard to the video and photographic evidence in determining how the accident occurred. This was perhaps best exemplified by the following passage in the appellant’s opening to the trial judge:

“When your Honour comes to see both still and moving pictures, the two most important sets of film which give a very clear picture of the events leading up to and the events which we say caused the fall, are identified principally from two camera angles.”

86. The two camera angles to which the appellant had referred in this passage were the “rear view” footage which was taken from the 1200m mark and “lateral view” footage which was taken from the grandstand. The appellant acknowledged to the trial judge that because of the foreshortening effect of the telephoto lenses, the photographs taken from that point did not give “any idea of how much distance there is in terms of running, in the longitudinal sense, between the horses”. Notwithstanding this accepted shortcoming in what the appellant contended were the critical photographs, the appellant continued to rely on the photographs, saying that it was proposed to “take [the court] to some screenshots, just to show how the race developed at the point of the fall”. According to the appellant’s opening, it was:

“… quite obvious from the shots from the rear … that, progressively, [the respondent’s] horse moves out …The screenshots … show a gap which is comfortably wide enough and is a ‘good horse’ …”

87. The appellant also contended that the photographs showed the respondent progressively coming back towards the rail:

“… so that he takes back his running which, of course, had become [the appellant’s] running.”

The screen shots subject of these opening remarks were tendered as Exh C.

88. The respondent submitted that, as the authorities established, photographic evidence can be used even if there is evidence to the contrary, if that evidence is not so compelling in itself. The respondent submitted that this was such a case and that recourse could be had to the photographic evidence.

89. The principles relating to the reception into evidence and the use that may be made of photographic evidence have been the subject of elucidation in a number of authorities in this Court, commencing relevantly with Blacktown City Council v Hocking (2008) Aust Torts Reports 81-956; [2008] NSWCA 144 where Spigelman CJ, with whom Campbell JA and I agreed, observed, at [7], that:

“It is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating the evidence otherwise given.”

90. Spigelman CJ added that the approach taken in Schmidt v Schmidt [1969] QWN 3, that in the absence of a “concession” by a party or witness, a judge could only use photographs as “descriptive of what [the witness who tendered them] saw” and that the judge could not use the photos to “make deductions of fact”, might need reconsideration.

91. In Beaton v McDivitt (1985) 13 NSWLR 134 at 142-143 Young J, having referred to the approach taken in Schmidt v Schmidt, observed that, in equity, photographs were often tendered without a witness giving evidence as to them and stated his view that when this happened, the photographs were evidence and not merely material to assist in understanding the evidence. His Honour noted that such an approach had been taken by the Court of Criminal Appeal in R v Ames [1964-5] NSWR 1489 at 1491.

92. In Blacktown City Council v Hocking at [169], Tobias JA, with whom Giles JA agreed, considered, by reference to Schmidt v Schmidt, that photographs should not be used to make findings of fact that were not supported by the evidence. To use photographs in that way, according to his Honour, would be “no more than conjectural”. His Honour accepted that photographs could have probative value of themselves, but that care was necessary that they not be the sole source from which primary facts were inferred if the primary facts were not apparent on the face of the photograph.

93. A matter that frequently arises in the use of photographs is that they can be deceptive, particularly in relation to perspective and distance. This was the subject of observation in Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130 where the Court (Beazley and Tobias JJA, Spigelman CJ, Giles and Campbell JJA agreeing) said, at [69]-[72], that photographic evidence could not trump the direct evidence of witnesses that compelled acceptance.

94. I had cause to review the use of photographic evidence again in Yarrabee Coal Company Pty Ltd & Anor v Lujans (2009) Aust Torts Reports 82-024; [2009] NSWCA 85 at [20]-[27] and concluded, at [28]:

“… much will depend upon the photograph in question, the circumstances in which it was taken and what the evidence, if any, is in relation to the photograph. Thus, in Angel v Hawkesbury City Council [2008] NSWCA 130 the Court rejected that the photographs should have trumped the eyewitness evidence which, the Court held, was compelling: see at [69]-[70].”

95. In Townsend v O’Donnell (2016) 78 MVR 283; [2016] NSWCA 288, there were photographs in evidence, taken after a motor accident, which depicted the place where the accident occurred and from which it was sought to estimate how long the respondent had had to take evasive action. Sackville AJA, with whom I and McColl JA agreed, said, at [52]:

“… great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken and the photographs themselves are indistinct.” (citations omitted)

See also Warren v Gittoes [2009] NSWCA 24 at [54]-[55].

96. In Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72, which concerned a motor accident, the appellant contended that the primary judge had failed to give adequate weight to video footage taken from a camera in a vehicle travelling behind the vehicles involved in the accident. Sackville AJA, Ward JA and Garling J agreeing, said, at [42]:

“The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.” (Citations omitted)

See also, again in the context of video evidence, Asim v Penrose & Anor [2010] NSWCA 366 at [57]; QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478.

97. The video and photographic evidence in this case was tendered by the appellant without objection. Likewise, the reports of each of the experts were tendered without objection. No objection was taken at trial to the expertise of these witnesses, although in cross-examination of Mr Burnett, there was an attempt to have him defer to the greater experience of the appellant’s witnesses. The same point was taken in the appellant’s final written submissions to the primary judge. No attention was given at trial to the expertise of these witnesses in the interpretation of video and photographic evidence. Rather, it appeared to be assumed that each had experience such as to enable them, from the video and photographic evidence, to form an opinion first as to what the video and photographic evidence depicted, and from that, to give an opinion as to what had caused the fall.

98. Importantly, the appellant did not complain in his notice of appeal that the experts were not experts, or that their evidence was wrongly admitted. Rather, in ground 1 of the appeal, the complaint was that his Honour had impermissibly gone beyond the video and photographic evidence to comprehend the expert evidence and had thereby erred by using his own interpretation of that evidence. The former complaint was only raised in oral submissions, and is addressed below at [148]-[151].

99. The video taken in the present case was filmed contemporaneously with the running of the race and was taken from a number of cameras positioned around the track and from different angles. The photographs were stills taken from the video. Although this Court, in the course of the hearing on the appeal, viewed the video, for the most part the argument was advanced based on the photographs.

100. The question in issue is the use that the primary judge made of this evidence.

101. His Honour’s reasons as to how the evidence was to be used were first indicated at [3] where his Honour said:

“It will be necessary in due course to refer to this photographic material in order to assess, if possible, precisely what it reveals about [the appellant’s] claims and [the respondent’s] competing contentions. This is referred to in more detail later in these reasons.”

102. His Honour next explained, at [5] and [6], the utility the photographs had in assessing the relationship amongst the horses, specifically the proximity of the appellant’s horse to the respondent’s horse:

“… bearing in mind the allegation that [the appellant’s] horse clipped the heels of [the respondent’s] horse when the distance or space between them had, for whatever reason, became unsafely reduced.”

103. His Honour also considered that the rear view was helpful in assessing the lateral movements of the horses throughout the race. In this regard, his Honour referred to the appellant’s allegation that the respondent steered his horse in towards the rail as he was making a run into a gap between it and Mr Clarke’s horse. His Honour considered that the rear view of the race provided assistance in assessing the relative lateral movements of these and other horses at that time.

104. As I have referred above at [61], his Honour then stated, at [10], that although the photographic material “was extremely helpful”, it could not provide “a single unambiguous answer to the liability issues”. His Honour gave several reasons for this, including the “dynamic and to some extent unpredictable nature of horseracing”, the fact that this evidence “of its very nature” did not “foreclose the possibility of varying and competing contentions or opinions” as to what it revealed; and the fact that the photographic evidence had to be considered in the context of the evidence of the appellant and the respondent as well as the lay witnesses’ recollections of what they saw and heard, together with the competing expert opinions about what the stewards inquiry, the rules of racing and the photographic evidence revealed. His Honour also remarked, at [11], that notwithstanding the limitations of the video and photographic evidence, the expert opinions offered on a question of the respondent’s liability drew heavily upon what the cameras had captured.

105. His Honour’s stated approach as to the use he could make of the video and photographic evidence is entirely consistent with the authorities to which I have referred and, in particular, to the observations of Sackville JA in Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited. It should be observed in this context that the video and photographic evidence in this case was taken contemporaneously with the running of the race from identified fixed camera positions.

106. His Honour’s determinations based on the whole of the evidence are then to be found at [117]-[130] and, in particular, as they related to the specific challenge raised by ground 1 of the appeal, at [119]-[129]. Although these are set out above, it is necessary to review them to determine whether the appellant has made good his challenge.

107. His Honour, having referred to the utility of the video and photographic evidence and its limitations at [5], [6] and [10], stated, at [119], that this evidence was “helpful and instructive”. His Honour also stated that he had assessed the experts’ opinions that specifically referred to this evidence. His Honour pointed to his own lack of expertise in assessing and analysing such material, but said he had “utilised and referred to the photographic evidence in detail as an aid to understanding what the respective experts say that it demonstrates”.

108. His Honour in the succeeding paragraphs examined the evidence of the appellant and considered it having regard to the video and photographic evidence. His Honour undertook the same process in relation to the evidence of the experts. It is convenient to commence with his Honour’s observations at [128] and his conclusion at [130] that the appellant was overracing, a matter about which there was really no contention, Mr Killian being the only witness whose evidence was to the contrary.

109. The appellant, both at the stewards inquiry and at trial, said that his horse was overracing. Mr Cumberland gave evidence at the stewards inquiry that the appellant’s horse was overracing. All witnesses, including Mr Killian, gave evidence that the way to control a horse that was overracing was by standing high in the stirrups. The video and photographic evidence, as all witnesses agreed, showed that the appellant was standing high in his stirrups. Importantly, the appellant explained that he was trying to control his horse by standing high in his stirrups, although Mr Killian attributed this action by the appellant in this race as being an “English style” of riding. Although the appellant denied that he was not able to control his horse, his horse was moving up on the group of horses in front of him, as his Honour found and as Mr Burnett and Mr Williams agreed.

110. Thus, the essential factual issue was whether the respondent’s horse had shifted to the right, that is, back in towards Mr Clark’s horse, so as to close the gap between those two horses, at least to an extent that the appellant could no longer move into it, in circumstances where the appellant was moving up towards that gap. The evidence relevant to that question was that of the appellant, the respondent and Mr Cumberland as to what had occurred in the race, what they contended the video and photographic evidence showed, and the evidence of the experts having regard to their observations of the video. I am of the opinion that Mr Killian’s evidence was not relevant to that question given that his evidence was based on what was occurring at the time that the 1100m mark becomes visible.

111. At [120] and [121], his Honour referred to the appellant’s evidence and considered that it was apparent from the video and photographic evidence that the accident could not have occurred because of the gap between the respondent’s horse and Mr Clarke’s horse having closed suddenly, or at least so quickly that the appellant had no reasonable opportunity or ability to avoid the collision, as must have occurred on the appellant’s version. His Honour pointed out, at [121], that Mr Williams’ opinion based on the photographic evidence was that the gap closed “gradually”. Indeed, as his Honour observed, at [122], according to Mr Williams, “the gap really doesn’t close”. These observations accorded with his Honour’s own observations of the video and photographic evidence.

112. His Honour’s acceptance of Mr Burnett’s view that the respondent’s horse was holding its line behind Mr Geppert’s horse, which was also the respondent’s evidence, was consistent with his acceptance of Mr William’s view that the gap between the respondent’s horse and Mr Clarke’s horse was only closing gradually and did not close prior to the fall. Further, as the respondent pointed out, Mr Williams essentially agreed with Mr Burnett that the photographs between AC 18, taken at 16:55:51.00 and photograph AC 29, taken at 16:55:53.21, showed that the respondent was following the same racing line as Mr Geppert’s horse, Predicate.

113. Criticism was made of his Honour’s observation, at [125], that the nose of the appellant’s horse never got ahead of the tail of the respondent’s horse. The appellant relied upon a “concession” of the respondent to the contrary. This is dealt with below in more detail, but in short, to the extent there was any “concession”, it was a “concession” as to the position of the horses just before the 1100m mark becomes visible, whereas the fall occurred at about the point that the 1000m mark becomes visible, approximately three seconds later. In that period, the appellant’s horse had already stumbled once and, as his Honour found, at [127], had moved “slightly away from the rails … immediately preceding the fall”. His Honour found, at [126], with reference to the lateral view photographs and videos between 16:55:51.63 and the fall, that the appellant’s horse was overracing and gaining ground on the respondent’s horse and that the appellant was “unable to prevent his horse in effect running into the rear legs of [the respondent’s] horse”. Those findings were clearly available on the basis of the expert and other evidence, and do not disclose an impermissible use of the video and photographic evidence.

114. In my opinion, no error has been demonstrated in the manner in which his Honour used the video and photographic evidence.

Second issue: error in proceeding on the basis that there was no issue of credit

115. The appellant contended that his Honour wrongly proceeded on the basis that no issue of credit arose between the parties. The appellant submitted that the respondent “clearly gave inconsistent and incorrect evidence”. The appellant specified various aspects of the respondent’s evidence to make good his challenge. These are dealt with below.

116. His Honour’s reasons for determining that there were no credit issues to be determined are to be found at [11] of the judgment. After having made his introductory remarks about the utility of the video and photographic evidence, his Honour observed that notwithstanding its limitations, the expert opinions as to the respondent’s liability were significantly based upon the photographic evidence. In his Honour’s view, there was little in dispute between the parties that did not revolve around competing interpretations of what the video and photographic evidence revealed.

117. His Honour, at [11], noted that the expert views were, therefore:

“… significantly fact-driven, rather than being concerned with the existence and content of a duty, the standard of care that applied or what does or does not amount to a failure to comply with it.”

118. For that reason, his Honour considered that the proceedings had not given rise to any issues of credit, in circumstances where he was of the view that all witnesses had done their best to recall from memory what had happened during the race, or to offer honest opinions about what the video of the race actually revealed, or both.

119. The appellant’s challenge to his Honour’s failure to make adverse credit findings against the respondent was based upon the following particulars. It is appropriate to deal with each of the particulars seriatim.

(a)   The appellant contended that it was apparent from his cross-examination that the respondent was being deliberately evasive.

No details of this assertion were given.

(b)   The appellant referred to the respondent’s evidence which placed the fall as having occurred at the 1400m mark, rather than the 1000m mark.

This was not an entirely accurate representation of the respondent’s evidence. He had not said that the fall occurred at the 1400m mark. He had referred in his statement to the turn at the 1400m mark. The respondent corrected this in cross-examination and stated that he meant to indicate the turn at the 1100m mark. At different times, he pointed out to the cross-examiner that the reference to the 1400m mark on his statement was meant to be a reference to the 1100m mark.

(c)   The appellant referred to the respondent’s evidence that the fall occurred “at one of the tightest turns I have encountered at any track I have ridden in Australia”, and submitted that there were two other much tighter bends on this race track.

The respondent was cross-examined about this by reference to the turn at the 600m mark, it being suggested to him that that turn was “tighter than any other turn on the track”. The respondent explained, however, that that was different, because at the 1400m mark the horses were “jumping from a straight line” and not yet in position, so they were “moving … in and out”. By contrast, at the 600m mark, “the horses [were] in a position and they’re all going together”. He agreed that the turn at the 600m mark was “probably a little bit tighter”. He said, however, that it was “a lot safer” than the 1100m corner. He accepted that “in terms of track geometry” the turn at the 600m mark was tighter than any other turn on the track.

(d)   Similarly, the appellant submitted in relation to the respondent’s evidence at the stewards inquiry that the respondent:

“… tried to attribute his shifting out to the fact that this was tighter than most turns encountered in Australia. In the evidence that he gave to the Steward’s inquiry the movement outwards in shifting out was said to have been partly because of the way his horse took the corner and partly because he gave himself ‘extra room [because there were] horses getting in a little bit of trouble in front …’ or to avoid ‘carnage’ up ahead.”

175. I add one further observation. Recommendation 12 in the Ipp Committee’s Review of the Law of Negligence Final Report, (2002) defined “recreational activity” as “an activity undertaken for the purposes of recreation, enjoyment or leisure which involves a significant degree of physical risk”. The Committee justified the distinctive treatment of recreational activities on the basis that “people who participate in such activities often do so voluntarily and wholly or predominantly for self-regarding reasons” (at [4.11]). Hence, the rule would not apply to “[m]embers of schools and other institutions … required to engage in sporting and other recreational activities” or “people who participate in recreational activities in the course of their employment” (at [4.12]). If Parliament had wished to maintain a distinction based on voluntariness, it could have retained the language in the Report. Instead, it introduced paras (a) and (c), which attach to the objective characteristics of an activity or place, rather than to the purpose of the relevant participant in undertaking the activity. That departure from the Committee’s recommendation must be taken to have broadened the scope of the defined expression.

176. I also agree with the reasons of Beazley P in relation to the disposition of the other issues in the appeal and with the orders that her Honour proposes.

177. LEEMING JA: I have had the considerable advantage of reading the reasons for judgment of Beazley P in draft. I agree with the orders her Honour proposes. What follows presupposes familiarity with the factual background, the reasons of the primary judge, and the issues raised by the appeal.

178. I start with the construction and application of s 5L of the Civil Liability Act 2002 (NSW). On the view I take, s 5L is dispositive of the appeal.

Horseracing is a recreational activity within the meaning of the Civil Liability Act

182. Sections 5K and 5L of the Civil Liability Act provide:

“5K Definitions

In this Division:

dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

obvious risk has the same meaning as it has in Division 4.

recreational activity includes:

(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk.”

183. An “obvious risk” to a person who suffers harm for the purposes of these provisions is “a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person”: s 5F(1). It was common ground, both at trial and on appeal, that the risk that a jockey might fall from a horse during a race and suffer injury was an obvious risk, and that horse racing involved a significant risk of physical harm; there is thus no occasion to consider the views expressed as to the operation of the terms “obvious risk” and “significant risk” in Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32. Instead, the appeal proceeded on the footing that if horseracing is a “recreational activity”, then s 5L would apply, and be dispositive.

184. Section 5L, like s 5I, provides that a defendant “is not liable in negligence ...”. Unlike s 5I, which in terms limits the operation of the section so as not to exclude liability in connection with a duty to warn, s 5L applies whether or not the plaintiff was aware of the risk (this reflects the nature of an “obvious risk”, as opposed to an “inherent risk”, and accords with what was held in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9). Further, like s 5I, s 5L employs the language of “as a result of”, which conveys a broader notion of causality than s 5D requires the plaintiff to establish.

185. Noting that “negligence” for the purpose of Part 1A is defined to mean “failure to exercise reasonable care and skill”, s 5L is thus a complete answer to liability which is governed by Part 1A. That is to say, even if a plaintiff establishes duty and breach and causation, if s 5L applies, then a defendant is not liable to the plaintiff. It is an example of a “liability-defeating rule” which is “external to the elements of the claimant’s action” and thus a clear example of something properly regarded as a defence: see J Goudkamp, Tort Law Defences (Hart Publishing, Oxford, 2013), p 2, and see Fallas v Mourlas at [122]. The onus of establishing the defence rests with the defendant: Fallas v Mourlas at [24] and [123]. Although it was not how the appeal was presented, there is much to be said, in my respectful view, for dealing with the defence at the outset: see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [54]-[57]; Schultz v McCormack [2015] NSWCA 330 at [84], [132] and [153]; Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 at [25]; Bankstown City Council v Zraika; Roads and Maritime Services v Zraika [2016] NSWCA 51 at [81]. Although those decisions involved different provisions of the Civil Liability Act, namely, ss 5I, 5M and 44, in each case the statutory defence was an entire answer to that aspect of the plaintiff’s claim.

186. The primary judge had regard to Dodge v Snell [2011] TASSC 19, where it was held that professional horseracing was not a “recreational activity”, notwithstanding that the Tasmanian statutory definition, like s 5K, included “any sport”, although it did not include the third limb. Wood J considered the point at length at [257]-[279], relying on (a) the proposition that the word “recreational” imparted meaning to, or “coloured” the word “sport” (at [261] and [269]), being “over-arching in its effect” (at [266]); (b) dictionary definitions of “recreational”, whose essence was “the notion of a pleasant pastime”, and which was “the antithesis of paid employment” (at [264]); and (c) the consequences of the broader approach, which were described as “far-reaching” (at [272]):

“It would mean that all professional sportspeople who are injured in carrying out their occupation by the negligence of a fellow sportsman, the negligence of their employer or others owing them a duty of care, would be precluded from seeking damages. Arguably, employees who are engaged in a sport as an occupation such as conducting kayaking or abseiling tours, or teaching others a sport, may also be precluded from pursuing actions for civil damages. There is no indication that Parliament intended such a sweeping change to the common law entitlements of many Australians, or to create such a degree of uncertainty for employees, where it is arguable that they are engaged in hazardous occupations.”

187. The primary judge expressed his respectful disagreement with Dodge v Snell: “having regard to their ordinary meaning, the words in the equivalent New South Wales provision do not permit of such a conclusion”: at [137].

188. The appellant submitted that professional horse racing was not a “recreational activity” within the ordinary meaning of that term, and sought to confine s 5L to activities which were of a recreational nature. He submitted that the words “whether or not the sport is an organised activity” suggested that “any sport” was not intended to cover all sporting activities:

“The definition is intended to cover organised and unorganised sporting activities which have a recreational nature. Had the legislature intended to include recreational activities which, within their ordinary meaning, would not be recreational within the definition of ‘recreational activity’, the legislature would have done so in clear and unambiguous terms.”

189. The appellant submitted that the approach in Dodge v Snell was consistent with what had been said in Belna Pty Ltd v Irwin [2009] NSWCA 46 at [13 and Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [102]-[103], and was critical of the reasons of the primary judge insofar as his Honour said that those decisions did not address what is or is not a sport. The appellant’s primary submission was that the legislation required a distinction to be drawn between sport undertaken for pleasure and sport undertaken as a profession.

190. I start with the statutory text. “Recreational activity” is defined inclusively, by reference to three limbs. Each limb is disjunctive. Each limb commences with the word “any”, but yet each operates in a different way. The first is directed to the characterisation of the activity, the second to the purpose of the participant, and the third to the location. The evident purpose is for the definition to capture activities if they satisfy any or all of the stated character, or purpose, or location. Even then, the definition is not exhaustive.

191. The first limb is “any sport”. The limb therefore requires an analysis of whether the activity bears a particular character, namely, whether it is a “sport”. Contrary to the appellant’s submission, the words “any sport” are apt to preclude a distinction between sports engaged in for recreational purposes and professional sports. The distinction for which the appellant contends is in the teeth of the ordinary meaning of “any”.

192. The words “any sport” are followed by the words “(whether or not the sport is an organised activity)”. Again, contrary to the appellant’s submission, the bracketed words are words of generality, directed to fending off any implication that only a subclass of organised sports fall within the words “any sport”. Once again, far from supporting, they tell against there being a distinction between recreational and professional sports.

193. The second inclusive limb of the definition is “any pursuit or activity engaged in for enjoyment, relaxation or leisure”. The word “for” and those following it make it clear that this limb looks to the purpose of the activity. If the appellant’s construction were accepted, and sport were confined to recreational activities, then this second component of the definition would amount to its entire content. But a relatively elaborate definition, such as that of “recreational activity”, should not be read so as to confine its operation into only one of its three limbs, leaving the balance inutile. See (in private law contexts) FBHS (Aust) Pty Ltd v Stone Homes Pty Ltd [2014] NSWCA 312 at [50] and Fitness First Australia Pty Ltd v Fenshaw Pty Ltd (2016) 92 NSWLR 128; [2016] NSWCA 207 at [42]. The purpose of the triply disjunctive definition is necessarily to expand the scope of “recreational activities” beyond those which have a recreational purpose; that is the point of the first and third limbs.

194. The third limb of the definition focusses upon the location of the activity (“at a place”). It highlights some of the practical difficulties which accompany the appellant’s construction. If the location of the activity is sufficient to engage s 5K, then how does the appellant’s construction distinguish between professional and non-professional sportspeople at the same location?

195. More generally, it is easy to contemplate sporting events in which some competitors participate for enjoyment or relaxation or leisure, but others do not. There must be some occasions when professionals, semi-professionals and amateurs compete simultaneously (for example, marathon running and some forms of car or motorbike racing). What of an elite high school or undergraduate rugby player who plays a game amongst professionals? It would seem most arbitrary in such a case if a player could be liable for injury negligently inflicted upon a professional but not upon the student. Constructions which yield improbable or capricious results are to be avoided on settled principles of statutory interpretation: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 321.

196. Further, the distinction between professional and non-professional is scarcely a crisp one. It is easy to contemplate competitors who receive some remuneration, and hope as their careers progress to be able to support themselves from their sport, but whose participation is predominantly for recreational purposes, and who would not be regarded as professional. Boxing may be one example, there are many others.

197. It will also be seen that there are two components in the third limb: where people ordinarily engage in sport, and where people ordinarily engage in any pursuit or activity for enjoyment, relaxation or leisure. Those components correspond with the first and second limbs. That in turn emphasises that the definition as a whole should not be construed so that the second limb swallows up the first.

198. All these difficulties arise from seeking to impose a gloss not found in the statutory definition, and contrary to the generality and ordinary meaning of “any sport”. They tell against the appellant’s construction.

199. Turning to authority, I do not consider that anything in Belna Pty Ltd v Irwin or Motorcycling Events Group Australia Pty Ltd v Kelly stands in the way of the primary judge’s construction. Those were cases involving exercise in a gym and a motorcycle training course. As the primary judge observed, neither case involved the question whether there was a sport.

200. In the former, an ex tempore decision refusing leave to appeal, one issue was whether the trial judge had erred in concluding that the exercises undertaken by the plaintiff at the gym were not recreational (because she had undertaken them to lose weight and get fit). This was held to be erroneous. Ipp JA said at [13], [14] and [16] that the exercise program fell within each of the three paragraphs of the definition of “recreational activity”, although the case was ultimately lost because the operator of the gym had not provided the plaintiff with a warning sufficient to satisfy s 5M. Relevantly for present purposes, his Honour said at [13]:

“As regards sub-paragraph (a) of s 5K, the Oxford English Dictionary contains many definitions of ‘sport’. Perhaps the most apposite in the context of the statute is ‘participation in activities involving physical exertion and skill’. I would add to this definition the element of participation in those activities for purposes of enjoyment, relaxation or leisure, as s 5K provides. The exercise program undertaken by Ms Irwin involved participation in activities of that kind and, according to ordinary English usage, fell within the meaning of ‘sport’.”

201. The appellant seeks to draw support from that passage to read the purpose of enjoyment, relaxation or leisure into the first limb of the definition of “sport”. No issue was presented in Belna Pty Ltd v Irwin as to whether professional sport fell within the definition of “sport”, and so the decision is not authority for that proposition. It cannot be right to read two disjunctive limbs of the definition of “recreational activity” conjunctively, so that it is necessary to satisfy both paragraph (a) and paragraph (b). I do not think that was what Ipp JA intended to convey by the passage on which the appellant relies, but if it was his Honour’s meaning, I would respectfully regard it as clearly wrong.

202. In Motorcycling Events Group Australia v Kelly no submission appears to have been made that participants in a motorcycling training course were participating in a sport, and so again the decision is not squarely on point. The appellants relied on two aspects of the decision. First, Gleeson JA stated at [102] that “the emphasis in the definition is on engaging in the relevant pursuit or activity for the purposes of enjoyment, relaxation or leisure”. That statement reflects the language of the second and third limbs of the definition. It does not preclude the first limb of the definition, which lacks those words, from bearing its ordinary meaning.

203. Secondly, Gleeson JA observed at [103] that the goal of the activity was relevant to determining whether it was a recreational activity. Again, as much may be accepted – purpose is central to the second limb of the definition. But that is not to say anything of the first limb.

204. I note that in Fallas v Mourlas at [26] and [27], Ipp JA stated that professional cricket and boxing would arguably be recreational activities, and considered for the purposes of giving an example whether each would also be considered a “dangerous recreational activity”. However, those observations do not take the matter very far: once again they were not made in the context of a case where the construction of the definition was in issue.

205. I respectfully disagree with the reasoning in Dodge v Snell. First, I do not find it helpful to have regard to the ordinary meaning of “recreational”. Section 5K contains an elaborate definition with elements which emphasise its generality, such as its three disjunctive limbs, each of which commences with “any”. It is difficult to see how part of the defined term could limit that generality. Further, Part 1A of the Civil Liability Act uses language in potentially deceptive ways. One example is “negligence”, which does not mean the tort, and can include causes of action in contract, equity and under statute: see Paul v Cooke at [40]-[41].

206. Secondly, I do not think that dictionary definitions of “recreational” add anything to the legal analysis. As is ordinarily the case, much greater assistance is derived from the terms used in the definition, and its structure of three disjunctive limbs, any of which is sufficient to satisfy the defined term, and of which one is directed to characterisation of the activity, another to its purpose, and a third to its location.

207. Thirdly, it may be doubted that the effect of the primary judge’s construction is so far-reaching or sweeping as Wood J considered. Insofar as her Honour’s concern was directed to the availability of such a defence to employers (for example, of persons who conducted kayaking or abseiling tours) or organisers of sporting events, it may be that the position is less clearcut. Professor McDonald has observed that “the reasonable expectation of any participant is that the provider will take at least reasonable care”; she has also suggested that “the unspecified negligence of another person is not a risk arising out of the activity itself”. She concludes:

“[A]lthough there has been much fanfare of the high degree of protection given to recreational providers by the legislation, it is strongly arguable that it will be difficult to rely on these provisions to excuse negligence in organising or carrying out an activity, particularly a dangerous one”: B McDonald, “Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia” (2005) 27(3) Sydney Law Review 443 at 471.

208. Similar ideas were expressed by Ipp JA in Fallas v Mourlas at [30]-[55]. An example might be Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; 324 ALR 355, where in light of the totality of the circumstances it was said at [43]-[46] that the particular conduct – a fall following an instructor riding a quad bike faster than was safe for inexperienced participants – was not the materialisation of an obvious risk. It is not necessary to express a concluded view on those issues in order to resolve this appeal, and I would not wish to be taken to be doing so in the absence of argument. It suffices to say that the consequences of what I would regard as the overwhelming considerations summarised above may not be so extreme as has been suggested.

208. Finally, the foregoing is strengthened by the second reading speech on the Civil Liability (Personal Responsibility) Amendment Bill 2002, which introduced s 5L and its associated provisions. The Premier said of it:

“There will be a presumption that a person is aware of obvious risks, as was recommended in the Ipp report. Similarly, there will be no duty to warn of an obvious risk, providing that no written law requires such a warning in the particular case. Nor will there be any liability for the obvious risks of particularly dangerous sports and other risky activities”: Parliamentary Debates, Legislative Assembly, 23 October 2002, p 5764.

210. Consistently with the primary judge’s construction, no distinction is there drawn between sports participated in for recreational purposes as opposed to professional purposes.

211. For those reasons, I consider that the primary judge was correct to conclude that s 5L applied. Horseracing is a sport which engages the first limb of the definition of “recreational activity” in s 5K. It was common ground that if that were so, ss 5K and 5L were engaged. That is sufficient to resolve this appeal.

Balance of the appeal

212. On the view I take, the appellant’s failure on grounds 7-11 mean that the appeal must be dismissed. However, I agree with what Beazley P has written in relation to the other grounds of appeal. I would add one comment in relation to the photographic evidence that formed such a substantial component of the trial and appeal.

213. It is abundantly clear that there are real limitations in the photographic evidence which had been tendered. Some of these were plain to the eye and expressly noted by his Honour.

214. The essential problem is easily stated. The horses were being ridden around an irregularly shaped oval racetrack. At times they were travelling in a straight direction, at other times they were turning. The tightness of the turns varied. At all times, they were being filmed from four fixed locations at the edge of the track, of which the most revealing were the so-called “home turn”, “back straight” and “lateral view” images.

215. The photographs reproduced in Exhibit AC reflected a frame rate of five per second. In every fifth of a second, each horse will travel some 3 metres. Thus much of each horse’s motion is not captured in those images.

216. The most important issues in this litigation were (a) the extent to which a horse “rolled out” or “shifted out” or “shot out” or “shifted ground” – which is to say, the horse varied its lateral displacement relative to the horses travelling nearby, so as to open or close a gap, and (b) the distance between that horse and those further back in the field, especially those which might seize the opportunity to advance by moving into such a gap. Whether or not the “two lengths rule” was contravened depended upon those two matters. Both were questions of relative motion, noticing that every horse in the race was travelling at around 16 ms^-1 at all times.

217. Making findings directed to those two dynamic issues based on what the photography discloses is hazardous.

218. First, it is almost impossible to obtain a meaningful impression of some distances from the photography. For example, it is very difficult (although not impossible) to discern from the “lateral view” footage whether the horse is close to the rail or has moved out to the outer portion of the track. Where two horses overlap, the footage shows which is closer to the rail, but gives no indication of the lateral gap between them. Similarly, although the “home turn” footage at the critical portion of the track clearly shows how close or far away from the rail each horse is, it is exceedingly difficult to determine the distance between two horses in the direction of their travel. By way of example, in exhibit AC, photograph 22, the “lateral view” footage shows that the horses were, at a time when they appeared to be close to the 1100 metre mark, separated by some 7 or 8 lengths. However, the “home turn” footage at the same point merely shows a clump of horses, and even reference to such shadows as are cast on the ground does not enable an untrained eye – and I doubt whether it would enable a trained eye – to estimate the distance between the leader and the tail, or indeed, which horse was in front, and whether there was one, two or (as in fact was the case) three separated groups of horses.

219. Those deficiencies were obvious on the face of the photography. Other deficiencies were non-obvious, but even so they may be demonstrated beyond all doubt. One such deficiency, which infected the cross-examination at trial and indeed the written submissions in this Court and oral submissions until it was pointed out, may be seen from the fact that the same photograph, on the “lateral view” footage at time 16:55:51.83, appears to show the leading horses passing the 1100 metre mark.

220. Photograph 37 on the same footage, with time stamp 16:55:54.83, appears to show the leading horses at around the same position passing the 1000 metre mark.

221. But it is established, as a fact no less incontrovertibly true than the skid marks recorded in Constable Volf’s notebook in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, that the horses did not travel 100 metres in the three seconds separating those two pictures. That is unquestionably so, because that would mean that they were travelling at around 33ms^-1, which is to say, 120km/h. That is not physically possible.

222. The entire race took some 89 seconds (from 16:55:27 until 16:56:56) to cover 1460m. The horses’ average speed was therefore just over 16 ms^-1, and although they started from stalls and may have finished slightly faster, it is safe to assume that they were travelling in the order of 16 ms^-1 when the accident occurred. No evidence is required to establish that horses do not double or triple their speed during the course of a race.

223. The explanation for what appears on the photographs reproduced above is that at that point of the race, described in the evidence as “the sharpest part of the curve”, the horses were turning, while at all times, there was an inevitable parallax error in the apparent lining up of horse and distance mark in the photographic images.

224. Those matters well illustrate the familiar proposition that care must be taken in relying on photographic evidence in the authorities to which the President has referred.

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Amendments

08 December 2017 - [216]: correction to superscript

07 December 2017 - [221], [222]: correction to superscript

Decision last updated: 08 December 2017