Singh v Lynch

[2020] NSWCA 152

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152

Hearing dates:

27 April 2020

Date of orders:

23 July 2020

Decision date:

23 July 2020

Before:

Basten JA at [1];
Leeming JA at [80];
Payne JA at [142];
McCallum JA and Simpson AJA at [179]

Decision:

(1)   Appeal dismissed.

(2)   The appellant is to pay the respondent’s costs in this Court.

Catchwords:

TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5K, 5L – meaning of “recreational activity”, “dangerous recreational activity” – whether professional horse racing a recreational activity

TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5F, 5L – meaning of “obvious risk” – identification of risk – level of generality – principles to be applied

TORTS – negligence – elements of cause of action in negligence – breach of duty – whether riding contrary to the Australian Rules of Racing breached jockey’s duty of care – whether liability defeated by s 5L of the Civil Liability Act 2002 (NSW)

STATUTORY INTERPRETATION – definitions – interpretation of definition by reference to term defined – reference to the ordinary meaning of term

WORDS AND PHRASES – “recreational” – recreational activity” – “obvious risk” – Civil Liability Act 2002 (NSW), s 5K

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5F, 5G, 5H, 5K, 5L, 5M, 5N, 32; Pt 1A, Divs 4, 5

Civil Liability Act 2002 (Tas), ss 19, 20

Civil Procedure Act 2005 (NSW), s 76

Commons Registration Act 1965 (UK), s 22

Copyright Amendment Act 1984 (Cth), s 3

Interpretation Act 1987 (NSW), ss 33, 35

Workers Compensation Act 1987 (NSW), s 10

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Australian Securities and Investments Commission v King [2020] HCA 4; 94 ALJR 293

Avenhouse v Hornsby Shire Council (1998) 46 NSWLR 1

AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81

Barangaroo Delivery Authority v Lend Lease (Millers Point) Pty Ltd [2014] NSWCA 279

Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67

Birmingham City Council v Walker [2007] 2 AC 262; [2007] UKHL 22

British Amusement Catering Trades Association v Westminster city Council [1988] 2 WLR 485

Brown v Brook (1971) 125 CLR 275; [1971] HCA 30

BWP Management Limited v Ipswich City Council [2020] QCA 104

Carter Capner Law v Clift [2020] QCA 125

Data Access Corp v Powerflex Services Pty Ltd (1999) 202 CLR 1; [1999] HCA 49

Delaney v Staples (t/a De Montfort Recruitment) [1992] 1 AC 687

Dodge v Snell [2011] TASSC 19

Esso Australia Resources Pty Ltd v Commissioner of Taxation (2011) 199 FCR 226; [2011] FCAFC 154

Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32

Falvo v Australian Oztag Sports Association [2006] NSWCA 17

Favelle Mort Ltd v Murray (1976) 133 CLR 580; [1976] HCA 13

Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311

Hardy Wine Company Ltd v Janevruss Pty Ltd [2006] VSCA 28

Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400

Heffernan v Comcare (2014) 218 FCR 1; [2014] FCAFC 2

Her Majesty’s Revenue and Customs v Stringer [2009] UKHL 31; [2009] 4 All ER 1205

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14

Kempsey Shire Council v Five Star Medical Centre Pty Ltd (2018) 99 NSWLR 98; [2018] NSWCA 308

Letang v Ottawa Electric Railway Co [1926] AC 725

Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394

MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47; [2005] 4 All ER 107

Manly Council v Malouf t/as Fusion Point (2004) 61 NSWLR 394; [2004] NSWCA 299

McKenna v Hunter & New England Local Health District [2013] NSWCA 476

Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65

Minister for Immigration and Border Protection v ARJ17 (2017) 250 FCR 474; [2017] FCAFC 125

Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22

Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309

Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687; [2010] NSWCA 164

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54

Oxfordshire County Council v Oxford City Council [2006] 2 AC 674; [2006] UKHL 25

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

Philipps v News Group Newspapers Ltd [2013] 1 AC 1; [2012] UKSC 28

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 455; [1998] HCA 28

R v Johnston (1985) 38 SASR 582

Rennie Golledge Pty Ltd v Ballard (2012) 82 NSWLR 231; [2012] NSWCA 376

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39

Secretary, Department of Home Affairs v CCA19 [2019] FCAFC 209

Streller v Albury City Council [2013] NSWCA 348; (2013) Aust Torts Rep 82-146

SZTVU v Minister for Home Affairs (2019) 268 FCR 497; [2019] FCAFC 30

Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437

The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40; [1980] HCA 12

Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316

Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379

UG Insurances Pty Ltd v Commissioner of Stamp Duties (NSW) (1973) 128 CLR 353; [1973] HCA 31

UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852

Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503; [1978] HCA 30

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9

YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12

Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22

Texts Cited:

Australian Rules of Racing (1 August 2012), r 137(a)

D Bailey and L Norbury, Bennion on Statutory Interpretation (LexisNexis, 7th ed 2017)

Commonwealth of Australia, Review of the Law of Negligence – Final Report (September 2002)

A Grabiner, “The iterative process of contractual interpretation” (2012) 128 LQR 41

P Herzfeld and T Prince, Interpretation (2nd ed, Thompson Reuters, 2020)

Category:

Principal judgment

Parties:

Hari Singh by his next friend Ambu Kanwar (Appellant)
Glenn Lynch (Respondent)

Representation:

Counsel:
Dr C Ward SC / Mr D Stanton (Appellant)
Mr J Sexton SC / Mr D Lloyd (Respondent)

Solicitors:
Morgan & English (Appellant)
Moray & Agnew Lawyers (Respondent)

File Number(s):

2019/356885

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 1403

Date of Decision:

18 October 2019

Before:

Fagan J

File Number(s):

2015/205553

HEADNOTE

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

The appellant, Hari Singh, was a professional jockey. In August 2012 he was seriously injured when his horse fell during a race meeting at the Tamworth Racecourse. The fall was caused by the respondent, Glenn Lynch, riding his horse so as to push the horse alongside him into the path of the appellant’s horse. The appellant sued the respondent in negligence. Fagan J dismissed the proceedings, because (i) the respondent did not breach his duty of care to the appellant, and (ii) his injury was caused by the materialisation of an obvious risk which arose in the course of a dangerous recreational activity. That being the case, s 5L of the Civil Liability Act 2002 (NSW) (Civil Liability Act) conferred immunity on the respondent from liability in negligence.

On appeal, the appellant challenged the finding that the respondent, who had been found guilty of careless riding by the Stewards, was not negligent. With respect to the engagement of s 5L, he argued that (i) dangerous riding by the respondent in breach of the rules of racing did not constitute an “obvious risk”; and (ii) his involvement in the race as a professional jockey did not constitute participation in a “recreational activity”. The latter argument involved a challenge to Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311.

Rule 137(a) of the Australian Rules of Racing, of which the respondent was found guilty, provided a penalty to riders in horse races of “careless, improper, incompetent or foul riding”. The evidence at trial was that this provision was commonly breached by jockeys. The Australian Rules of Racing also required (r 135) jockeys to ride as competitively as possible.

The principal issues on appeal were:

1. the correctness of the finding in Goode v Angland that professional horse racing is a dangerous recreational activity;

2. whether the appellant’s injury was the result of the materialisation of an obvious risk which occurred in the course of a dangerous recreational activity, and

3. whether the respondent breached the duty of care owed to other participants in the race.

The Court (Basten, Leeming and Payne JJA) dismissed the appeal (McCallum JA and Simpson AJA dissenting) and held:

In relation to (1):

1. Goode v Angland correctly construed ss 5K and 5L of the Civil Liability Act: [43], [132], [142], [188]-[193]. Neither the language nor the structure of the statute, nor the legislative history, provide a basis for excluding professionals involved in a sporting activity from the exemption from liability provided by s 5L: [29], [141], [142], [189].

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41; Letang v Ottawa Electric Railway Co [1926] AC 725; Commonwealth of Australia, Review of the Law of Negligence – Final Report (September 2002) discussed.

1. The statutory definition of “recreational activity” cannot be read down by reliance on the ordinary meaning of “recreational”: [34], [98]-[131], [142], [191]-[192].

Discussion of reliance on ordinary meaning of defined term in construing definition: [33], [102]-[131].

The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc 1994) 181 CLR 404 at 419; [1994] HCA 54; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 455; [1998] HCA 28; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14; P Herzfeld and T Prince, Interpretation (Thomson Reuters, 2^nd ed, 2020), [3.50] discussed

1. The analysis in Menz v Wagga-Wagga assists in charactering a risk of harm for the purposes of s 5L: [49], [136], [150], [195].

Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, applied.

In relation to (2):

by Basten JA, Leeming JA, and Payne JA:

1. Fine distinctions differentiating species of unsafe riding should not govern the characterisation of risk: [66], [136], [142].

2. A finding in relation to the obviousness of a risk under ss 5L and 5K does not depend on the range of ways in which a risk may be characterised but rather whether the risk of a fall as a result of another jockey’s careless riding, constituted by the deliberate contact with another horse, and contrary to the rules of racing, was the materialisation of an obvious risk: [66], [139], [151]-[153]. The appellant’s injury was the result of the materialisation of an obvious risk which occurred in the course of a dangerous recreational activity: [68], [139], [151].

by Basten JA (Leeming JA and Payne JA agreeing)

1. While the trial judge was wrong to conclude that the respondent’s riding was merely careless and not reckless, and thus the defendant was liable in negligence, that does not assist in the interpretation and application of principle to ss 5K and 5L: [68], [141], [156].

by Payne JA (Basten JA and Leeming JA agreeing):

1. It may be accepted that the respondent’s riding was “unexpected, unreasonable and also unnecessary”. That conclusion does not address the obviousness of the risk: [177], [69], [141]. The “recklessness” or “deliberateness” of the breach of r 137(a) does not alter its obviousness: [66]-[69], [138], [142].

by McCallum JA and Simpson AJA (dissenting):

1. In determining whether the harm which befell the plaintiff was the materialisation of an obvious risk under ss 5K and 5L, regard must be had to the mechanism by which an injury was caused: [203]. On the facts of this case, that inquiry calls attention to the manner of riding that caused the appellant’s horse to fall: [203]. The categories of “careless, improper, incompetent or foul riding” in r 137(a) are of varying and, generally, escalating degrees of gravity: [209].

9. The question is whether it would have been obvious to a reasonable person in the position of the appellant that another professional jockey would ride his horse in the manner that the primary judge found that the respondent did, that is, deliberately directing his horse to push sideways or “bump” against another horse so abruptly as to move that horse off her line of running and into the line of running of a third horse: [212].

1. The riding of the respondent was aggressive and not merely careless: [225], [226], involving deliberate and persistent riding by the respondent which caused the fall: [226]. The defence under s 5L was not established: [229].

In relation to (3):

1. The riding by the respondent was unsafe and grossly negligent: [77], [141], [156], [236].

by Basten, Leeming and Payne JJA:

1. The consequence of the breach of duty was that s 5L was engaged; as s 5L provided an exemption from liability for the respondent, he was not liable in negligence: [78], [141], [142].

by McCallum JA and Simpson AJA (dissenting):

1. The breach of duty rendered the respondent liable in negligence: [237].

Judgment

1. BASTEN JA: The appellant, Hari Singh, was a professional jockey. In August 2012 he was seriously injured when his horse fell during a race meeting at the Tamworth Racecourse. The fall was caused by the defendant, Glenn Lynch, riding his horse so as to push the horse alongside him into the path of the appellant’s horse. The appellant sued the respondent in negligence. Following a trial in the Common Law Division, Fagan J dismissed the proceedings, giving judgment for the respondent. [1] The proceedings failed because the judge found that the respondent did not breach his duty of care to the appellant, but primarily because his injury was the result of the materialisation of an obvious risk which occurred in the course of a dangerous recreational activity. That being the case, s 5L of the Civil Liability Act 2002 (NSW) protected the respondent from liability in negligence.

   1. Singh v Lynch [2019] NSWSC 1403 (“Singh”).

2. In this Court, the appellant challenged the finding that the respondent, who had been found guilty of careless riding by the Stewards, was not negligent. With respect to the engagement of s 5L, he argued that (i) dangerous riding by the respondent in breach of the rules of racing did not constitute an “obvious risk”; and (ii) his involvement in the race as a professional jockey did not constitute participation in a “recreational activity”. The latter argument involved a challenge to the recent decision of this Court in Goode v Angland [2] holding that participants in professional sport fell within the scope of “dangerous recreational activity” for the purposes of s 5L. For reasons explained below, the Court should not depart from the construction of the Civil Liability Act adopted in Goode v Angland. It is therefore unnecessary to decide whether the respondent breached his duty of care. However, on one view s 5L is not engaged unless a breach of duty is established; it is appropriate on that view to address the finding on breach, although a favourable outcome will not assist the appellant unless he can also avoid the application of s 5L.

   2. (2017) 96 NSWLR 503; [2017] NSWCA 311.

Grounds of appeal

3. The notice of appeal purported to identify 13 separate grounds. However, with two points of explanation, they are all encompassed within the issues noted above.

4. The first point relates to grounds 1-7, which are primarily directed to the failure of the judge to accept that there had been a breach of the duty which arose under the general law, and applying s 5B of the Civil Liability Act. That qualification arose from the references in grounds 2 and 3 to the respondent riding his horse so as to cause “reckless or deliberate contact” with the horse which was pushed into the path of the appellant’s horse. There was no doubt that the respondent deliberately caused his horse to come into contact with the horse alongside him, which suggested that the pleader had a claim in trespass in mind. However, the allegation of deliberately riding in such a manner as to collide with the second horse was identified in the statement of claim as a particular of a breach of duty in negligence. [3] The case in this Court was similarly run on the basis that the cause of action was negligence.

   3. Statement of claim, 14 July 2015, particulars of breach, (l) and (m).

5. The second point concerns grounds 8-10 where, with significant elements of repetition, the appellant alleged error in the way in which the trial judge had formulated the nature of the risk of harm. The judge defined the risk as that of “the plaintiff’s mount falling, bringing him to the ground and causing him injury.” The appellant contended that the risk was “that another rider would deliberately ride [his] horse so as to cause abrupt, reckless or deliberate contact with an adjoining horse”, conduct which fell outside the rules of racing. In fact the trial judge considered alternative formulations of the risk of harm, concluding that even were the appellant’s preferred characterisation of the risk to be adopted, it would still constitute an “obvious risk” within the meaning of that term as defined in s 5F of the Civil Liability Act. However, the judge did not accept that the riding was reckless. These issues will be addressed in identifying the risk of harm for the purposes of s 5L.

Factual background

6. The primary facts may be concisely stated. Most were not in dispute and they are fully recorded in the judgment below. The factual disputes revolved around the inferences which might be drawn from the primary facts.

7. The accident occurred in the course of race 7 at the meeting organised by the Tamworth Jockey Club on 14 August 2012. The race was run over 1600m in a clockwise direction around the oval-shaped track. [4] The race was recorded by four cameras at fixed locations. The fall occurred as the horses were rounding the curve into the home straight. Distances were measured to the finishing post. The placement of the horses at the 420m mark was as follows: [5]

   4. Singh at [6].

   5. Singh at [10].

1. The respondent, on Darcey, was riding close to the rails with two horses alongside each other in front of him. On his outside was Decoree ridden by Gregory Ryan. The appellant on Blue Onyx was behind Decoree. The respondent was thus boxed in.

2. In an attempt to manoeuvre into a position in which he could challenge the leaders, the respondent “commenced to ride Darcey forward and out from the rail, shifting wider to contact Decoree (Mr Ryan) and then exerting pressure to move Decoree to her left.” [6]

3. That level of contact was not criticised by the appellant. However, Mr Ryan resisted the pressure and kept Decoree on her line of travel. He also kept Decoree alongside Darcey, although, as they came out of the turn, Darcey was a head in front.

4. The respondent abruptly increased the pressure of his mount against Decoree and despite Mr Ryan having attempted to resist, Decoree was moved to her left.

5. The abrupt increase in pressure from Darcey caused Decoree’s hindquarters to be displaced to the left. The rear of Decoree contacted Blue Onyx somewhere between the shoulder and flank and there was either an entanglement with Blue Onyx’s legs or at least his stride was interrupted, causing him to blunder and fall.

   6. Singh at [10(6)].

8. The appellant’s challenge to the legality of the respondent’s conduct focused on the abrupt increase in pressure, referred to in places as a “bump”, being conduct which was said to be outside the rules of racing.

9. The result of the appellant’s fall was a closed head injury with serious and what appear to be permanent disabilities. Although not reflected in the title of the judgment in the Court below, the trial judge noted that the plaintiff’s wife had acted as his tutor in the litigation. [7]

   7. Singh at [3].

Statutory scheme

10. It may be accepted that the provisions of the Civil Liability Act do not directly address the nature of the duty of care which is required to engage the general law of liability in negligence. That is not to say there are no provisions which affect the duty; for example, s 32 imposes a necessary condition on a duty of care with respect to mental harm. Section 5H removes any duty of care with respect to warning of an obvious risk. Other provisions, including s 5L, impose limitations on liability in negligence. Such provisions operate against the background of the general law. If there is no general law duty of care, they will not operate. Indeed, on one view they assume a breach of duty and protect the defendant from the liability which would otherwise arise. [8] The operation of such provisions must be understood against the background of the general law. [9]

    8. Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 at [51] (Ipp JA).

    9. Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22 at [22]-[24] (in relation to s 32).

11. Section 5L, the operative provision relevant to the present case, reads as follows:

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.

12. Section 5L appears in Div 5 of Pt 1A. Section 5K picks up the definition of “obvious risk” from Div 4. In Div 4, obvious risk is defined in the following terms:

5F   Meaning of “obvious risk”

(1)   For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2)   Obvious risks include risks that are patent or a matter of common knowledge.

(3)   A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4)   A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

13. There is a second qualification to the operation of s 5L, namely that the obvious risk is that “of a dangerous recreational activity”. The phrase “dangerous recreational activity” is defined in s 5K in terms which include reference to a “recreational activity”. It is convenient to set out the whole of s 5K:

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.

14. Section 5L thus contains two descriptors qualifying the concept of “risk”. The risk must be “obvious” in the sense of a risk which would be obvious “to a reasonable person in the position of [the plaintiff]”; further, the activity must be one which “involves a significant risk of physical harm.” In Fallas v Mourlas Ipp JA stated that “there is nothing in s 5L that indicates that the obvious risk that materialises must be one of the significant risks that transforms a recreational activity into a dangerous recreational activity.” [10] While that may be true, s 5L is concerned with the materialisation of an obvious risk “of” a dangerous recreational activity; in most cases it will be irrelevant whether that risk is also a significant risk of physical harm.

    10. Fallas at [29].

15. The third criterion for the engagement of s 5L is that it is the plaintiff who must be engaged in the dangerous recreational activity. In the present case both the plaintiff and the defendant were involved in horse racing. However, although there must be a causal relationship between some activity of the defendant and that in which the plaintiff suffered physical harm, they need not be participants in the same activity. Thus, the section must be construed bearing in mind the potential range of roles which could be played by the defendant, including (i) the owner or manager of the place in which the accident occurs; (ii) the employer of either the plaintiff or the directly negligent party; (iii) an association responsible for setting the rules or otherwise regulating the activity in which the accident occurs, or (iv) the directly negligent party. [11]

Recreational activity

11. See, for example, Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 at [1] (Gleeson CJ).

(a)   the statutory language – ordinary meaning

16. The argument in the present case turned on the definition of “recreational activity”. The appellant submitted that that concept did not, in everyday usage, encompass professional sport. Rather, it was limited to activities voluntarily undertaken by persons for enjoyment, relaxation or leisure.

17. That submission may be accepted; however, the term recreational activity is not used in its everyday meaning, but is defined in the statute. Its ordinary everyday meaning is encompassed within par (b) of the definition. The three limbs of the definition are separate and cumulative in their operation. Paragraph (b) does not qualify or limit par (a); par (b) should not be construed to deprive par (a) of any separate or additional content. No example was provided in argument of a sport which does not constitute a pursuit or activity, although, as with any other leisure activity, a sport can be pursued for exercise or to hone skills. (That implies that any such purpose falls outside the purposes identified in par (b), which would be strange.) Accepting that there is a category of “professional sport” which is pursued (by the participants) as an occupation and a means to a livelihood, the statutory definition provides no basis for excluding such activities from the definition of recreational activity.

18. Further, par (c), which expands the definition to include pursuits or activities engaged in at a particular place, identifies the place by reference to engagement in sport or in any pursuit or activity within par (b). In other words, it envisages that pars (a) and (b) will have separate operations, absent which the disjunctive “or” would have no work to do.

19. The only basis for reliance on the ordinary meaning of recreational activity is that the definition is inclusive and not exhaustive. That approach raises a further question as to the purpose of the listing of particular activities said to fall within the defined term. Their purpose may be (i) merely to provide examples; (ii) to remove a doubt as to certain items, or (iii) to expand the ordinary meaning to include activities which would not otherwise be encompassed within it. [12] In many cases it will not be possible to distinguish between definitions which seek to resolve doubt as to the scope of the term defined and those which seek to expand its ordinary meaning. In the present case the effect of pars (a) and (c) is to expand the ordinary meaning. It is possible that the definition so provided is exhaustive (despite the use of the verb “includes”) but it is not necessary to decide that: the appellant’s case seeks to limit, not expand, the scope of the definition.

    12. P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) at [3.70]; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395, 398 (McTiernan J, Taylor and Windeyer JJ agreeing), 401-402 (Kitto J), 405 (Menzies J); [1964] HCA 12.

(b)   extrinsic material

20. The appellant sought to rely upon the recommendations of the Commonwealth Panel’s Final Report which preceded the enactment of the Civil Liability Act. [13] Having rejected a suggestion that there be a specific exemption from liability for not-for-profit organisations, the Final Report continued:

“4.11   The Panel is of the view, however, that a principled reason can be given for treating recreational activities and recreational services as a special category for the purposes of personal injury law, regardless of whether the provider of the service is an NPO or a for-profit organisation. The reason is that people who participate in such activities often do so voluntarily and wholly or predominantly for self-regarding reasons.

4.12   This is not always the case, of course. Members of schools and other institutions may be required to engage in sporting and other recreational activities. Also, people who participate in recreational activities in the course of their employment do not do so voluntarily in the relevant sense. The rationale for treating recreational services and activities as a special case does not apply to such persons. Therefore, any rule limiting liability in respect of recreational services should not apply to them.”

13. Commonwealth of Australia, Review of the Law of Negligence – Final Report (September 2002) (“Final Report”).

21. The recommendation flowing from that statement was that “the provider of a recreational service is not liable for personal injury or death suffered by a voluntary participant in a recreational activity as a result of the materialisation of an obvious risk.” [14] As noted by Ipp JA in Fallas v Mourlas, s 5K and s 5L “differ materially from [recommendations 11 and 12 of the Final Report] by not incorporating the element of voluntariness.” [15] He nevertheless considered that those provisions reflected the rationale that “where the risks are obvious [the plaintiff] is to be regarded as having assumed those risks”. [16] Whether the rationale survives the abandonment of voluntariness may be doubted.

    14. Final Report, recommendation 11.

    15. Fallas at [45].

    16. Ibid.

22. The concept of voluntariness relied on in the Final Report appears to find its origin in the general law principle of exculpation known as “voluntary assumption of risk”, and identified by the Latin maxim volenti non fit injuria. That concept was described by the Privy Council in Letang v Ottawa Electric Railway Co [17] in the following terms:

“If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.”

17. [1926] AC 725 at 731.

23. That is, the defence requires that the plaintiff understood and accepted that participation ran the risk of tortious conduct for which no remedy could be obtained. Although the heading to Pt 1A, Div 4 is “Assumption of risk”, bereft of the key element of voluntariness, it does not bear a close relationship with the general law principle, which may or may not have survived its enactment.

24. The short response to the appellant’s reliance on the Final Report is that the legislation did not adopt important aspects of the recommendation. Section 5L is not limited to providers of recreational services, nor does it refer to voluntary participants.

25. In policy terms one can understand why that might be. For example, the reasoning in the Final Report appeared to distinguish between school children who are required to engage in sport and those who do so voluntarily. A person who provided diving or rock-climbing activities on a commercial basis would be exempt if the participants were holiday-makers, but not if they were in training as part of their employment. The suggestion that recreation and leisure are undertaken for “self-regarding reasons”, warranting protection from liability for a negligent supervisor may not have been persuasive.

26. There is a distinction between the materialisation of an inherent risk (which is not a consequence of negligence on the part of any person) and the materialisation of an obvious risk (which does seem to assume negligence). [18] Both can arise in the course of sporting activities. In considering the policy of respecting voluntary choice the difference is important.

    18. See, generally, Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39; Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58.

27. Agar v Hyde,[19] a decision delivered two years before the publication of the Final Report, addressed a claim in negligence brought by two rugby football players who suffered serious injury as a result of a collapsing scrum and sued the International Rugby Football Board for alleged deficiencies in the rules relating to the formation of scrums. The case concerned adults participating voluntarily in amateur sport. Gleeson CJ made the following observations with respect to such participation:

“[14]   Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity. [20] That, however, is not to deny the significance of voluntary participation in determining the existence and content, in a given case, or category of cases, of an asserted duty of care.

[15]   People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also of the public benefit of sport. Sporting activities of a kind that sometimes result in physical injury are not only permitted; they are encouraged. Sport commonly involves competition, either between individuals or teams. A sporting contest might involve body contact where physical injury is an obvious risk, or the undertaking by individual competitors of efforts which test the limits of their capabilities in circumstances where failure is likely to result in physical harm. Rules are of the essence of sporting competition. Individuals, or teams, wishing to compete must agree, personally or through membership of some form of association, upon the rules which will govern their competition.”

19. (2000) 201 CLR 552; [2000] HCA 41.

20. Rootes v Shelton (1967) 116 CLR 383.

28. It is clear that conflicting policy considerations could lead to the view that the voluntariness was not a necessary element for protection from liability. However, the rationale for the protection need not be pursued: it is sufficient that the language adopted by the legislature did not reflect the language of the Final Report.

29. It follows that neither the language nor the structure of the statute, nor the legislative history, provides any basis for excluding professionals involved in a sporting activity from the exemption from liability provided by s 5L. It should be noted that if the exemption is available, it depends not on whether the defendant was engaged in the dangerous recreational activity, but only on whether the plaintiff was so engaged.

(c)   reliance on the defined term

30. The appellant further submitted that “the ordinary meaning of recreation” must be given some work to do in the “overall construction of the section, such that persons engaging in any pursuit or activity engaged in at a place are caught by the definition of recreational activity, but only in so far as activities are [within the ordinary understanding of the defined term]”. That approach was said to be consistent with the purpose of the legislation.

31. It may be noted that the term “recreational activities” is also to be found as the heading of Pt 1A, Div 5. Although the heading forms part of the Act [21] and may undoubtedly be relied upon to assist in identifying the purpose of the legislation, it is doubtful that it is to be given a different meaning from the definition of the same term in s 5K.

    21. Interpretation Act 1987 (NSW), s 35(1)(a).

32. That aside, the appellant needed to confront the statement in The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc that: [22]

“The use of the word ‘proprietary’ in the term to be defined [proprietary maritime claim] does not colour the meaning to be given to the definition which follows it. It would be quite circular to construe the words of a definition by reference to the term defined.”

22. (1994) 181 CLR 404 at 419; [1994] HCA 54.

33. It is true that a definitional provision has a special place within legislation. Nevertheless, as explained in Project Blue Sky Inc v Australian Broadcasting Authority: [23]

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.”

That mandate is, of course, consistent with the requirement of s 33 of the Interpretation Act to prefer a construction that would promote the purpose or object underlying the Act to one which would not. Nevertheless, the purpose or object should not be derived extraneously, excluding consideration of the language of a critical provision (whether a defined term or not) and then applied to construe that provision. The correct approach is that set out in Independent Commission Against Corruption v Cunneen: [24]

“[35]   … The best that can be done is to reason in terms of relative consistency – internal logical consistency and overall consistency in accordance with the principles of statutory interpretation adumbrated in Project Blue Sky – to determine which of the two competing constructions of [the term in question] is more harmonious overall.”

23. (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ).

24. (2015) 256 CLR 1; [2015] HCA 14.

34. Adopting that approach, it is not possible to identify a legislative purpose based upon the use of the term recreational activity in its ordinary, everyday meaning in order to read down the definition, because the purpose cannot properly be identified by excluding the definition. That is not to say that the defined term may not in some circumstances affect the construction of the definition, without impermissible circularity. I agree with the observations of Leeming JA on this issue, accepting that no firm principle can be stated in the absence of full submissions as to the scope of the statement in Shin Kobe Maru.

(d)   authority

35. This conclusion is consistent with that reached by the Court in Goode v Angland. The essential reasoning in relation to the operation of s 5L was provided by Leeming JA. In agreeing with his reasons, Beazley P observed, after referring to ss 5K, 5M and 5N:

“[174] … These provisions would appear to be directed to persons taking part in ‘recreational’ activities, as that term is commonly understood, and not to professional sportspeople who are either in employment or otherwise engage in the sport professionally for reward. It also seems incongruous that an activity undertaken as one’s profession, trade or livelihood would be subject to the same legislative exclusion as an activity undertaken for enjoyment, relaxation or leisure, or for that matter, physical fitness or the acquisition of skill. However, I am persuaded for the reasons given by Leeming JA that that is the proper construction of, and therefore the effect of, s 5K and s 5L.”

36. It may be noted that the element of incongruity referred to by the President was based on the common understanding of the term “recreational”; however, the proper construction of the statute turned on the definitions set out above.

36. Meagher JA also agreed with Leeming JA, adding an observation in relation to the limited scope of the exemption recommended in the Final Report, with respect to who is a provider of a recreational service. [25]

    25. Final Report, recommendation 12.

37. Leeming JA dealt with the submission that professional horse racing was not a recreational activity within the ordinary meaning of that term, observing that, “[t]he 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.” [26] After discussing the structure of the section and the first two limbs of the definition of recreational activity, Leeming JA continued:

“[194]   The third limb of the definition focuses 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 Commissioner of Taxation of the Commonwealth of Australia. [27]

[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.”

26. Goode v Angland at [189].

27. (1981) 147 CLR 297 at 321; [1981] HCA 26.

39. The appellant suggested, to support giving a limited operation to par (c) in the definition of recreational activity, the example of a person,

“… who happens to walk home from work thereby commuting and not engaging in any recreational activity … but passes through a public park …. If that person found themselves to be injured, a question might arise as to whether or not a recreational activity, and in some circumstances a dangerous recreational activity may have taken place. But certainly on the construction that has been given in Goode to par (c), the mere act of being in a place amounts to a recreational activity.”

40. The example was put forward as demonstrating the absurdity of a broad construction, but was inapt. Accepting that walking home from work may be engaged in for the purpose of enjoyment, relaxation or leisure, it is doubtful that the section seeks to draw a distinction between (i) a walk in the park during the lunch hour; (ii) walking from a place of work to home, or (iii) a walk in the park from home after work. The mere fact that worker’s compensation may cover (i) and (ii) is beside the point. [28] Further, s 5L(1) only applies where the plaintiff is engaged in a dangerous recreational activity. It is most unlikely that walking home through a park would satisfy that test.

    28. Workers Compensation Act 1987 (NSW), s 10 (journey claims).

41. In terms of authority, the appellant also called in aid the Tasmanian decision in Dodge v Snell,[29] where Wood J considered a similar issue arising from injuries caused to a jockey whose horse fell in the course of a race. Section 20 of the Civil Liability Act 2002 (Tas) was in similar terms to s 5L. Section 19 contained a definition of “recreational activity” which included pars (a) and (b) of the definition in s 5K, but not par (c). Wood J addressed the construction of the statute in steps by (i) referring to dictionary definitions of “recreational”; [30] (ii) treating the word “recreational” as one which “contributes to the meaning of the definition and should be given effect”; [31] (iii) considering that the inclusion of sport in a separate limb of the definition attracted cases in which sport was undertaken for the purposes of acquiring skill and fitness, which were not necessarily within the language of “enjoyment, relaxation or leisure”, thus giving both paragraphs work to do; and (iv) concluding that “[t]he context of the provision and a consideration of the Act as a whole does not suggest that the exclusion regarding ‘dangerous recreational activities’ was intended to extend to professional sports people carrying out their paid occupations.” [32]

    29. [2011] TASSC 19.

    30. Dodge at [262]-[264].

    31. Dodge at [265].

    32. Dodge at [270].

42. The effect of that approach is to commence with a presumption that the term defined bears its ordinary meaning (ascertained by reference to a dictionary or dictionaries) and to impose that meaning on the definition, rather than giving the whole definition its ordinary meaning. That process of construction was rejected in Goode v Angland; [33] Dodge is not consistent with the reasoning set out above and should not be followed in this State. [34]

    33. Goode at [205].

    34. Tasmanian authority will no longer be relevant in this respect as s 19 has been amended so that recreational activity is defined without reference to sport, thus adopting a definition limited to par (b) of s 5K.

43. This Court would not depart from the conclusions reached in Goode v Angland unless comfortably satisfied that the construction adopted was wrong. For the reasons set out above, it should be accepted that Goode v Angland was correct in its construction of s 5K and s 5L, with regard to sporting activities where the plaintiff is remunerated for his or her participation.

Nature of risk

(a)   characterisation of risk – principles

44. There remains a question as to the characterisation by the trial judge of the risk of harm for the purposes of s 5L. There was no dispute that horse-racing was a sport, nor that it was a dangerous recreational activity in the sense that it involved significant risks of physical harm. However, to engage the immunity from liability in s 5L, the respondent had to establish that the appellant’s injuries resulted from the materialisation of an obvious risk, being a risk which would have been obvious to a reasonable person in the position of the appellant.

45. As explained in Fallas v Mourlas, [35] obviousness may depend on the level of generality or particularity at which the risk is identified. Fallas v Mourlas concerned an injury caused by one participant discharging a firearm and wounding another, both being engaged in the activity of spotlighting and shooting kangaroo at night. In considering what might constitute an “obvious risk”, and speaking generally, Ipp JA stated:

“[51] In cases where the obvious risk is of being harmed by the conduct of a person (and not by physical features of the locale or other natural phenomena), for s 5L to become relevant the obvious risk must at least be of negligent conduct. Without negligence there could be no cause of action and no liability. Section 5L therefore may involve a plaintiff in certain circumstances having to accept the risk of another person being negligent. …

[52]   Negligence comes in an infinite number of forms and the degrees of negligent conduct are infinite. The term ‘gross negligence’ is nowadays not often used but courts from time to time still consider its meaning and application …. It is sufficient, for the purposes of these reasons, to say that gross negligence is negligence to an extreme degree.

[53]   It goes without saying that in certain circumstances the risk of a person being negligent (and causing harm) might be obvious, but in the same circumstances the risk of a person being grossly negligent (and causing harm) might not be obvious. I think it also goes without saying that while a person might accept the risk of harm caused by another's negligent conduct, that person is less likely to accept the risk of a person being grossly negligent.

[54] In my view, when considering whether there has been a materialisation of an obvious risk, a distinction may have to be drawn between a risk of negligent conduct on the part of another and conduct that is grossly negligent. In some circumstances, it may not be sufficient merely to ask whether the risk of harm caused by a person being negligent was obvious. If the conduct that caused the risk amounted to gross negligence, it would be necessary, in my opinion, to determine whether the risk of harm caused by gross negligence of the kind in question was obvious. Otherwise, if – for the purposes of s 5L – the ‘risk of negligence’ is to be regarded as a descriptive catch-all for the risks of any kind of careless conduct, no matter how extreme, harm caused by grossly negligent conduct could be held to be an obvious risk where in fact such a risk was not obvious at all.

[55]   I would add that the question is not whether it was obvious that there was a risk that the very facts that did in fact materialise could materialise. Rather, it is whether there was an obvious risk that that kind of thing might materialise. That is consistent with the approach generally applicable to elements of the common law tort of negligence that in some respects are analogous.”

35. See fn 8 above.

46. Relying on this reasoning, the appellant contended that even if there were an obvious risk of careless riding, the risk of reckless riding was not obvious and the respondent’s conduct should have been so characterised.

47. However, the appropriate characterisation of a risk will depend entirely upon the circumstances of the particular case and may involve a more nuanced inquiry than a distinction between “negligence” and “gross negligence”. Further, it is by no means clear that asking what “a person might accept” as a relevant risk of harm is an element of the definition in s 5F. Obviousness and acceptability are discrete concepts; the statute adopts the former. Although the heading to Div 4 (containing s 5F), namely “Assumption of risk”, reflects the general law principle that “a participant in a sport or pastime has voluntarily assumed a risk which is not inherent in that sport or pastime so as to exclude a relevant duty of care”, [36] that is not the language adopted in s 5F and s 5L.

    36. Rootes v Shelton at 386 (Barwick CJ).

48. In considering how a risk should be defined for the purposes of determining whether the activity was a dangerous recreational activity, Ipp JA in Fallas v Mourlas referred to the question as “essentially one of statutory construction” which involved a “clear ambiguity” resulting in “a construction that might result in potential unfairness and injustice should be avoided and a fair and just construction is to be preferred.” [37] However, it may not be helpful to describe the question as one of statutory construction, let alone one involving an ambiguous provision. Further, the difficulty in adopting a test of “a fair and just construction” is that it renders the outcome in particular cases highly unpredictable.

    37. Fallas at [44].

49. In Menz v Wagga Wagga Show Society Inc,[38] Leeming JA set out a number of principles to be applied in determining whether, on the facts of a particular case, the risk which had materialised was “an obvious risk”. [39] There are two propositions which are fundamental. The first is that “[t]he obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring.” [40] That proposition derives from the language of s 5F(1). Secondly, the specification of the risk must capture the harm which resulted from it materialising. [41] That proposition reflects a basic element of a claim in negligence, in language found in ss 5B, 5F and 5L. It is therefore correct to say that the determination of an obvious risk involves a combination of foresight and hindsight. [42] However, that is true of other elements of a negligence case, including the determination of the precautions which a reasonable person in the defendant’s position would take, assessed in accordance with s 5B. That does not diminish the importance of undertaking a prospective assessment of both the content of the defendant’s duty and the obviousness of the risk, for a reasonable person in the plaintiff’s position.

    38. [2020] NSWCA 65.

    39. Menz at [70]-[74].

    40. Menz at [72].

    41. Menz at [71].

    42. Menz at [72].

50. It does not follow, however, that the question of obviousness can appropriately be resolved by identifying the relevant risk so broadly as to encompass all possible risks associated with the activity. Such a characterisation will no doubt capture the risk which materialised, but it may do so at the cost of undermining the apparent purpose and function of the defence. This danger was recognised in Menz by noting that “determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight.” [43] However, that proposition was not intended to contradict the statement in the same paragraph that obviousness is to be considered prospectively. The correct approach is one which requires a balance to be drawn on the evidence in a particular case; it would be wrong to focus primarily on the hindsight exercise. To do so carries with it the opposite danger to that identified above, namely to define the risk which materialised by attention to the fine-grained detail of the event, to show it was not one which the plaintiff could reasonably have anticipated. That such an exercise was not intended by the language used in these paragraphs in Menz is confirmed by noting how the principles were applied, at [79].

    43. Menz at [72].

51. There is a danger of over-intellectualising the process of determining whether, in a particular case, the risk which materialised should be characterised as “obvious”. The language of s 5F includes within the phrase “obvious risk”, risks which are “patent or a matter of common knowledge”, risks having “a low probability of occurring” and risks which are not necessarily “prominent, conspicuous or physically observable.” None of this language is technical; none invokes a legal concept.

52. The law of negligence is replete with definitional criteria which cannot be identified with precision. Thus, a defendant can only be liable in negligence if a reasonable person in his or her position would have foreseen that the conduct giving rise to harm involved a risk of injury to a class of persons including the plaintiff. [44] On the other hand, a risk foreseeable to the defendant will not give rise to liability if the risk was obvious to a reasonable person in the position of the injured party, in circumstances falling within the scope of s 5L. In such a case the risk must be foreseeable, but not obvious. There is limited value in further exegesis. As Priestley JA pertinently remarked in relation to Lord Atkin’s exposition of the duty of care, and later case law, “[t]he modern abundance of authority would not however make Lord Atkin much wiser.” [45]

    44. The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47 (Mason J); [1980] HCA 12.

    45. Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 8C.

(b)   trial judge’s characterisation of risk

53. At the time of the accident the Australian Rules of Racing included a rule in the following terms, known as AR 137(a):

“Any rider may be penalised if, in the opinion of the Stewards, he is guilty of careless, improper, incompetent or foul riding.”

As the trial judge found, every year there are numerous contraventions of AR 137(a).

54. Further, as the judge noted, AR 135 was in the following terms:

“(a)   Every horse shall be run on its merits.

(b)   The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field.

(c)   Any person who in the opinion of the Stewards has breached, or was a party to breaching, any portion of this Rule may be penalised, and the horse concerned may be disqualified.”

55. Taking these rules together, the trial judge found that, [46] a jockey is under pressure to ride as competitively as possible, to bring the best result from his or her horse; on the other hand, there are constraints on what are acceptable tactics, the precise detail of which is not defined in the rules, but is no doubt well understood by jockeys, as demonstrated by the expert evidence.

    46. Singh at [15].

56. The trial judge identified the risk in two ways. His preferred characterisation was “the risk of his mount falling, bringing him to the ground and causing him injury.” [47] An alternative characterisation was proposed by the appellant in the following terms: [48]

“[The] risk of harm that eventuated is a risk that another rider would deliberately ride [his] horse so as to cause reckless or deliberate contact with an adjoining horse, in circumstances where [the first] horse was ‘boxed’ or ‘pocketed’, in a manner that was plainly contrary to the rules of racing.”

47. Singh at [72].

48. Singh at [73].

57. The judge accepted that the respondent deliberately rode Darcey so as to come into contact with the adjoining horse, namely Decoree, but he did not accept that the respondent was reckless in the manner in which he did that, nor that he was indifferent as to whether harm would result from his conduct. Rather, the judge was satisfied that the respondent’s action was “careless riding contrary to the Australian Rules of Racing.” [49] On the alternative characterisation, the judge treated the risk of harm as the risk that another jockey “would ride carelessly in breach of rule 137(a) by riding out from the rail, carrying another horse [Decoree] with him, thereby causing the second horse [Decoree] to intrude on the rightful running of the plaintiff’s mount and bring him down, causing injury.” [50]

    49. Singh at [78], [80].

    50. Singh at [81].

58. The judge then concluded that the more specific risk was also an obvious risk:

“[82]   There is a great deal of evidence to show that careless riding is a common occurrence. Mr Ryan agreed that he has himself been charged with breach of r 137(a) on many occasions. The plaintiff’s riding record, similarly, shows that on eight occasions he was found guilty of careless riding contrary to r 137(a) in circumstances that involved him shifting his mount across the track. …

[83]   Statistics collected by Racing New South Wales in annual reports for 2006, 2007, 2011 and 2012 show that in each of those years between 240 and 300 of breaches of r 137(a) were found proved. I infer that the number would have been similar in all years from 2006 up to the date of this accident. Mr Ryan said that to his knowledge on ‘hundreds of occasions every year jockeys are charged and suspended for careless riding’. He said the majority of careless riding charges are where the jockey has allowed his horse to shift but usually this is a shift inwards, where the rider is ‘trying to get in close to the rail to not cover excessive ground’.

…

[87] The infringement statistics and the racing records of Mr Ryan and of the plaintiff demonstrate that breaches occur frequently enough for it to be said that riding contrary to the rules is an obvious risk within s 5F. By formulating the risk that materialised in such a way as to incorporate a breach of the rules of racing, the plaintiff does not show that the risk is any less obvious. Accordingly, even if the risk that materialised should be identified in the narrower and more specific terms considered at [81] above, that was still an obvious risk within s 5F and the plaintiff’s claim is defeated by s 5L.”

(c)   was the conduct of the respondent reckless or careless?

59. The basis of the judge’s finding that the respondent’s conduct (which has been described above) was careless rather than reckless was as follows:

“[75]   The defendant carelessly rode his mount close up to the heels of Try to Please in circumstances where he would be dependent upon Decoree giving way to his left, in combination with Try to Please taking the home turn tightly. The evidence establishes that it is a common occurrence for the rider of an outside horse such as Darcey to try to hold a competitor in a pocket and also for horses such as the leaders in this race to fan out and turn wide onto the home straight. It is unsurprising that the defendant lost his gamble. Decoree held to her line and was not shifted wider by the initial moderate pressure from Darcey. Try to Please ran straight ahead for a few strides at the beginning of the home turn. Darcey remained boxed in, with Try to Please ahead and Decoree to the left.

[76]   I find that in this situation the defendant had placed himself in a position where all the alternatives involved a risk of accident ….

[77]   Fault for getting into this predicament lay with the defendant. He failed to allow for the capacity of the outside horse [to hold] him in and for the inclination of the leaders to take the turn wide. But I find no reason to doubt Mr Burnett’s description of the Hobson’s choice with which the defendant was then presented. He could try to pull his horse up and create the danger of clipping the heels of Try to Please, bringing one or both horses down and causing hazard to the followers. Alternatively he could push more heavily to the left to shift Decoree and establish a line for himself outside Try to Please, in the process potentially creating a danger for any horse running outside and behind Decoree, such as Blue Onyx.

…

[79]   In mitigation of the defendant’s riding at the critical time I take into account the following factors:

(1)   the speed at which the horses were galloping;

(2)   the close proximity of the horses to each other, which as far as the evidence shows is usual and acceptable;

(3)   the expectation upon the jockeys that they would ride competitively;

(4)   the extremely short timeframes, measured in fractions of a second, within which decisions had to be made by each rider and

(5)   the inevitable and variable delay that must occur between a jockey’s decision and the signal to and response of the horse.”

60. Each step in the reasoning was correct in its terms; however, in my view it was wrong to divide the steps taken by the respondent into discrete parts. While it is true that decisions were made within a very small time period, the “predicament” and “Hobson’s choice” was the result of his own miscalculation. That is different from a situation where a person is required to make a judgment in the heat of the moment as a result of circumstances which were beyond his or her control. Having found himself in a position where he could not readily challenge the leaders, he not only took steps, but continued to pursue steps which were designed to force the hand of the rider next to him. It is by no means clear that he had no alternative course available once he had urged his horse forward, without creating a similar risk to other horses, but even if that were so, it demonstrated the recklessness of the initial action. To the extent that the appellant challenges the finding that the respondent’s conduct was merely careless, I would accept the argument. The question is, however, whether that has any consequence for the engagement of s 5L.

61. On the evidence before the trial judge, although there are many charges laid under r 137(a), findings of careless, improper, incompetent and foul riding were not distinguished. The respondent was charged only with careless riding, [51] and found guilty as charged. [52] However, it does not follow that in the ordinary use of the word “reckless”, the respondent was not reckless in his riding. It does mean, however, that his riding was of a kind which fell within a relatively common place category. There is no basis for avoiding the conclusion that the risk of injury was one arising from the conduct of another jockey in recklessly trying to escape from a position where he was boxed in coming into the final straight.

    51. Tcpt, 14 August 2012, p 19, line 880.

    52. Tcpt, p 23, line 1110.

(d)   was the alternative characterisation of risk material?

62. Was the appellant’s challenge to the judge’s characterisation of the respondent’s conduct as careless, but not reckless material to the outcome? If the conduct had been identified as reckless, it was submitted that the evidence did not establish that such conduct was an obvious risk in professional horse racing. However, that depended on whether there was error in the formulation of the alternative risk.

63. The passages from Fallas v Mourlas set out at [45] above were relied upon by the appellant in support of the more particular characterisation of the risk.

64. It may be accepted that, in some circumstances, formulating a risk at a high level of generality may achieve a different outcome in terms of obviousness, as compared with a more particular formulation. In such a case, the choice may be critical to the outcome. The difficulty is in determining the level of particularity.

65. The preferred approach is to recognise that the identification of an obvious risk is a matter to be undertaken prospectively and without the benefit of hindsight. [53] It therefore requires a level of generality as to the kind of risk involved, as recognised in Fallas at [55]. A high order of predictability is desirable because the practical consequence of s 5L is to identify the party who will need insurance and the nature of the risk against which insurance is required. Thus, if professional jockeys cannot sue each other for careless riding, they will need to carry insurance against the risk of injury to themselves; on the other hand, they will not need to insure against the risk of being sued by another jockey.

    53. Menz at [72] (Leeming JA, Payne and White JJA agreeing).

66. A prospective assessment of the obviousness of a risk should not reflect fine distinctions differentiating aspects of unsafe riding. It is clear from a consideration of the Rules of Racing that breaches are likely to be common in circumstances where jockeys are subject to obligations to ride competitively throughout and to maximise the opportunities for their horse, whilst not riding carelessly or improperly.

67. The appellant submitted that there was no evidence before the Court to demonstrate that reckless, as opposed to careless, riding was an obvious risk of horse racing. On the other hand, there was no evidence to suggest that such a distinction was relied upon in the industry to assess the level and nature of the risks involved. Rather, it is a circumstance which, as this case demonstrated, involves no clear set of standards, but rather imprecise language the application of which will remain contestable in many circumstances.

68. Applying this approach, the preferred characterisation adopted by the trial judge may be too broad in that it fails to identify a risk arising from potentially negligent conduct. The relevant elements of the risk which materialised in this case were not merely the jockey falling from his mount, but a fall caused by contact with another horse, being contact which in turn resulted from the negligent riding of another participant. The precise degree of negligence was not material. Accordingly, describing the conduct of the respondent as reckless rather than careless was not an essential element of the characterisation of the risk. The alternative characterisation considered by the trial judge was apt; his conclusion that it involved an obvious risk was well supported on the evidence and was correctly made.

69. In addition to the foregoing, I agree with what Leeming JA and Payne JA have written in concluding that the appellant’s injury was the materialisation of an obvious risk.

Breach of duty

70. Having disposed of the appellant’s case on the basis that s 5L precluded liability for negligence, the trial judge turned finally to consider whether in fact there was negligence, dealing with breach of duty of care at [88]-[98]. Distinguishing between errors of judgment and breaches of duty, the judge concluded that the conduct of the respondent did not involve more than “a lapse of judgment under intense time pressure, in dynamic circumstances and where the defendant and all of the jockeys around him were under a professional obligation to race to win.” [54]

    54. Singh at [96].

71. That was a surprising conclusion having regard to the findings made earlier in the judgment in considering the application of s 5L. The appellant submitted that the judgment was internally inconsistent and that the failure to find breach of duty demonstrated error.

72. What appears to have been missing from consideration of breach was a statement of the content of the acknowledged duty of care. Such a consideration would have had regard to the kinds of conduct which could cause risks to the safety of other riders. These matters had been considered earlier in the judgment, particularly in identifying the requirements of r 137(a). Thus, the judge stated:

“[17]   Amongst participants in horse racing it is understood that careless riding in breach of this rule may be constituted by the rider of an inside horse directing his mount to push heavily against an outside horse in an endeavour to force the latter to shift across the track. Contact and some pressure is permissible. …”

73. In considering the respondent’s evidence the judge stated:

“[22]   Significantly, in these answers the defendant acknowledged that the ‘last part’ of his application of pressure by Darcey against Decoree to ‘take [her] with’ him in shifting to the left was ‘abrupt’. He accepted that it involved him riding Darcey to bump or bang Decoree, to push her wide. Both experts expressed the opinion, which I accept, that light side to side contact by the inside horse to encourage the outside horse to shift left is common practice and generally safe but heavy and/or abrupt contact capable of causing the outside horse to be shifted suddenly off its line of running is unsafe. Self-evidently it is particularly unsafe when the rider who brings the pressure to bear has not looked around to ensure that the horse to his left will not be pushed sharply into the path of another horse running behind and further off the rail.”

74. Having given that evidence before the Stewards, the respondent did not give evidence at trial. There was, therefore, no direct evidence from the respondent to contradict the finding set out above that what he did was self-evidently “particularly unsafe”.

75. That finding was supported by the evidence of Mr Ryan, who was the rider of Decoree and, as the judge accepted, was an extremely experienced jockey. He described Mr Ryan’s testimony as “frank and open and impressive.” [55] Relevant aspects of his evidence were summarised in the following terms:

“[33]   Mr Ryan’s statement contradicts the defendant’s contention to the Stewards. On Mr Ryan’s description the defendant was buffeting Decoree in conjunction with riding up onto the heels of Try to Please and he then abruptly applied a higher impact pressure, forcing Decoree to the left to create a line of running that had otherwise not been established. Mr Ryan said that when this occurred Decoree was half a neck ahead of Darcey; the shoulders of Darcey were just behind those of Decoree.

…

[36]   Mr Ryan gave the opinion, based upon his experience, that everything done by the defendant prior to the abrupt bump was ‘within the usual practice of a jockey’. However, he observed that the defendant’s attention was entirely focused on his own mount and on Decoree and the two leaders. Mr Ryan said the defendant did not look behind him to his left or attempt to see whether there was another horse to the outside of Decoree that might have been hampered as a result of Decoree being pushed wide into such other horse’s rightful running. He considered that it would not be expected by a professional jockey in the position of the plaintiff that a sudden forceful bump would be applied by an inside horse in the position of Darcey, to push Decoree’s hindquarters to the left into Blue Onyx’s path, as occurred.”

55. Singh at [35].

76. As noted above, the judge rejected the submission that the respondent’s riding was reckless, [56] and repeated his finding as to careless riding:

“[78]   … I am satisfied that this was careless riding contrary to the Australian Rules of Racing. I find that it was not excused as a manoeuvre necessary to avoid clipping the heels of Try to Please because the defendant was careless to have urged his mount forward to a position where those were his only alternatives. However, I am not satisfied on the balance of probabilities that in proceeding to this dangerous position, or in pushing heavily against Decoree to get himself out of it, the defendant’s riding was reckless in the sense of the defendant recognising the risk of harm to another horse and/or rider and proceeding with his actions indifferent to whether or not such harm should result.”

56. Singh at [75], cited at [59] above

77. Having accepted that the respondent’s riding was not only contrary to the Rules of Racing, but was “unsafe” and “particularly unsafe when the rider … has not looked around to ensure that the horse to his left will not be pushed sharply into the path of another horse”, [57] a finding of breach of the duty to have regard to the safety of fellow riders should have followed. For reasons noted above, the evidence amply supported a finding of recklessness, or what may perhaps be described as gross negligence.

    57. Singh at [22], cited at [73] above.

78. For these reasons, the rejection by the trial judge of any breach of the duty of care was erroneous. However, the only consequence of a finding of breach of duty would be that s 5L was engaged. As s 5L provided an exemption from liability for the respondent, the erroneous finding as to breach does not alter the outcome of the appeal.

Conclusion

79. The appeal should be dismissed; the appellant must pay the respondent’s costs in this Court.

80. LEEMING JA: The Court was constituted by five Judges of Appeal in light of the appellant’s application to re-argue the construction given to s 5K of the Civil Liability Act 2002 (NSW) in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311. Sections 5K and 5L are as follows:

“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.”

81. In Goode v Angland, both the Common Law Division and this Court held that professional horseracing was a sport which engaged the first limb of the definition of “recreational activity”, rejecting the submission that the term applied only to activities engaged in for recreational purposes.

82. My reasoning (with which Beazley P and Meagher JA agreed) took the following form. It started with the text of the defined term, which comprises three disjunctive limbs, each commencing with “any”: at [190]. The first limb, which included “any sport”, was apt to preclude a construction whereby one subcategory of sports, namely, professional sports, was excluded (at [191]), while the words of generality “(whether or not the sport is an organised activity)” likewise told against a narrow approach to sports which fell within the first limb: at [192].

83. Turning to the second limb, if it were necessary in order to fall within the definition for an activity to be undertaken for a recreational purpose, then this second limb would amount to the entire content of the definition, contrary to principles telling against a construction which left most of an elaborate definition devoid of work: at [193].

84. The third limb presented a difficulty in cases where professional and non-professional people participated in the same activity at the same location. How could a construction based upon the characterisation of the participants apply to a limb which was based on the location of the activity: at [194]?

85. The reasoning then turned to more general considerations which were regarded as confirming what flowed from the text and structure of the section. Referring to a series of examples where professionals and non-professionals might compete in the same events (marathon running, some forms of car and motor bike racing, and an elite high school or undergraduate rugby player who played a game with professionals), it would seem most arbitrary for there to be liability for a negligently inflicted injury upon a professional, but not upon the student: at [195]. It was also noted that the distinction between professional and non-professional was scarcely a crisp one: at [196].

86. I concluded that analysis by saying at [198] that:

“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.”

87. Turning to authority, two obiter passages in two appellate decisions which had been relied on to support the construction were addressed at [199]-[204], followed by disagreement with the reasoning of the Tasmanian Supreme Court at first instance, which had relied on the ordinary meaning and dictionary definitions of “recreational”: at [205]-[208].

88. Finally, the reasons turned to the Minister’s Second Reading speech, which did not distinguish between sports engaged in for professional purposes as opposed to recreational purposes: at [209]-[210].

89. Meagher JA added a reference in his concurrence at [178] to the way in which the statute had departed from the recommendation in the Ipp Report (which had proposed a narrower exception, essentially confined to what has now been enacted as the second limb). His Honour said that the introduction of the first and third limbs of the definition attached to the objective characteristics of an activity or place, rather than to a participant’s purpose. He said that the departure from the committee’s recommendation must be taken to have broadened the scope of the defined expression.

90. The appellant’s written submissions stated that my judgment in Goode v Angland “rests upon an express rejection (at [206]) of the proposition that the ordinary or dictionary meaning of ‘recreational activity’ was relevant to the construction of the term as defined in s 5K”. I do not think that is an accurate characterisation of my reasoning, which started with the text, and focussed on its triply disjunctive limbs, attending in particular to the first limb and how the words “any sport” and “(whether or not the sport is an organised activity)” were inconsistent with the defined term not applying to professional sports. My reasoning then addressed the rest of the definition, and the practical difficulties where professionals and non-professionals competed with one another, and then authority and then the extrinsic materials. It is true that I did not think the ordinary or dictionary definitions of “recreational” much helped, but that was part of my reasoning for departing from the construction given by the Tasmanian Supreme Court.

Whether the risk was obvious

204. By ground 12, the appellant challenged the finding that, even on the alternative formulation proposed on his behalf, the risk was an obvious one.

205. That horseracing carries a risk of injury from a horse falling and thus causing injury to the jockey is plainly correct. That risk is an obvious one. That however is insufficient. As we have explained, the circumstances that cause the horse to fall are also relevant. The relevant findings of the primary judge in this respect were:

“[10]   …

(6)   At about the 420m or a little earlier the [respondent] commenced to ride Darcey forward and out from the rail, shifting wider to contact Decoree [ridden by Mr Ryan] and then exerting pressure to move Decoree to her left.

(7)   After contact was made Mr Ryan directed Decoree to hold her line of running, against the pressure from Darcey. The [respondent] directed Darcey to the left in a manner that increased the pressure on Decoree.

(8)   …

(9)   Mr Ryan continued to direct Decoree to resist the pressure on her right from Darcey and to maintain her line of running. He also rode Decoree forward, limiting Darcey to only a head in front.

(10)   The [respondent] abruptly increased the pressure of his mount against Decoree and despite Mr Ryan having attempted to resist, Decoree was moved to her left.

(11)   The abrupt increase in pressure from Darcey caused Decoree’s hind quarters to be displaced to the left. The rear of Decoree contacted Blue Onyx [ridden by the appellant] somewhere between the shoulder and flank and there was either an entanglement with Blue Onyx’s legs or at least his strike was interrupted, causing him to blunder and fall.”

206. Notwithstanding those findings, in rejecting the appellant’s formulation of the relevant risk, the primary judge said:

“74.   I am not satisfied that the [respondent] did ‘deliberately ride [Darcey] so as to cause reckless or deliberate contact with’ Decoree. I find that his riding was careless …

75.   The [respondent] carelessly rode his mount close up to the heels of Try to Please in circumstances where he would be dependent upon Decoree giving way to his left, in combination with Try to Please taking the home turn tightly …

76.   I find that in this situation the [respondent] had placed himself in a position where all the alternatives involved a risk of accident …

77.   Fault for getting into this predicament lay with the [respondent]. He failed to allow for the capacity of the outside horse [to hold] him in and for the inclination of the leaders to take the turn wide …

78.   In the terminology of the [appellant’s] formulation of the risk that materialised, I find that the [respondent] rode Darcey to cause ‘deliberate contact with an adjoining horse’, namely Decoree. I am satisfied that this was careless riding contrary to the Australian Rules of Racing. I find that it was not excused as a manoeuvre necessary to avoid clipping the heels of Try To Please because the [respondent] was careless to have urged his mount forward to a position where those were his only alternatives. However, I am not satisfied on the balance of probabilities that in proceeding to this dangerous position, or in pushing heavily against Decoree to get himself out of it, the [respondent’s] riding was reckless in the sense of the [respondent] recognising the risk of harm to another horse and/or rider and proceeding with his actions indifferent to whether or not such harm should result.” (italics added)

207. As can be seen from the opening sentences of [74] and [78], the primary judge rejected the appellant’s formulation of the risk of harm on the basis, as he then discussed, that, while the conduct of the respondent in causing Darcey to make contact with Decoree was “deliberate”, it was not “reckless”.

208. We agree with Basten JA that characterisation of the respondent’s conduct as “careless” rather than “reckless” is not determinative. Turning to the fifth of Leeming JA’s propositions, the evidence of “what occurred” was clear and not significantly in dispute. But the evidence said to establish “why the risk was obvious” was, in our opinion, far from clear. The respondent made, at most, a token attempt to specify the circumstances that he contended made the risk of injury to the appellant obvious. He did this by reference to Rule 137(a) of the Australian Rules of Racing, by which “careless, improper, incompetent or foul riding” may be penalised.

209. The Rules do not define the various categories of racing that are outlawed by Rule 137(a). The categories are of varying, and, generally, escalating degrees of gravity. The respondent limited his attempt to demonstrate the obviousness of the risk of injury caused by riding of the kind outlawed by that rule to various Annual Reports of “Racing NSW” containing statistics of “careless riding” charges which, it may be inferred, covered all categories of Rule 137(a) transgressions. There was no attempt to identify the incidence of “careless riding” as distinct from any of the other (more serious) categories. Still less was there any attempt to identify the kind of riding that gave rise to the charges and the penalties imposed. Such information would have been highly relevant to the assessment of the risk of harm (injury) the appellant could have anticipated. The Annual Reports did no more than provide bare numbers of transgressions.

210. Yet it is apparent, on the plain words of Rule 137(a), that there is potentially a wide range of conduct encompassed within the Rule, some of which may be a common occurrence (and thus within the scope of what a participant may reasonably be expected to anticipate and therefore “obvious”) and some, at least, of which would be rare (and thus not necessarily within the scope of what a participant could reasonably be expected to anticipate).

211. In the application of s 5L it is as well not to lose sight of its purpose and effect. It is, as Leeming JA accepted in Menz, a “liability defeating” rule: that is, it was intended, in the circumstances stated, to deprive an injured plaintiff of compensation, to which he or she would otherwise have been entitled, for negligently inflicted injury. It should not be given an application beyond that for which it was intended: to excuse a defendant from the consequences of a negligent act or omission that results in injury to another, where exposure to injury arises from risks of the kind that the plaintiff might reasonably be expected to have anticipated and that materialised. Most particularly, it should not be given an application that effectively gives licence to individuals to engage in conduct that involves risk of harm beyond that which may reasonably be expected to be anticipated as part of the “pursuit or activity” in which the injured person voluntarily engages.

212. The question for present purposes is whether it would have been obvious to a reasonable person in the position of the appellant that another professional jockey would ride his horse in the manner that the primary judge found that the respondent did, that is, deliberately directing his horse to push sideways or “bump” against another horse so abruptly as to move that horse off her line of running and into the line of running of a third horse.

213. The jockey riding Decoree, Mr Greg Ryan, was the only participant in the race to give evidence. There was evidence that the appellant (who suffered a closed head injury) had no recollection of the race. The respondent did not give evidence. The primary judge described Mr Ryan’s evidence as “frank and open and impressive”: at [35]. His Honour noted that, although Mr Ryan was not called as an expert witness, some of his evidence involved expressions of opinion and that, in light of his experience and apparent objectivity, his opinions were entitled to “considerable weight”: at [27].

214. In his evidentiary statement (which was adopted as his evidence-in-chief), Mr Ryan described the critical moments as follows:

“30. This buffeting went on for about 30 metres or so. I continued to hold my rightful running line. [The respondent] bumped me maybe 4 or 5 times during these 30 or so metres.

31. The rules of racing state that it is my responsibility to finish in the best possible position, and for me obviously the best possible position is to finish in front of [the respondent]. So, it is my obligation to hold [the respondent] in that pocket.

32. After failing to force his way out during this thirty or so metres, [the respondent] took his mount inwards (to the right) a bit to give himself some room. He then made what I would call an aggressive attempt to get out. He brings his horse hard to the left and makes heavy contact with my horse, causing my horse’s hindquarters to abruptly shift out.” (Emphasis added).

215. Later in the statement, Mr Ryan said:

“Everything before that more severe contact is within the usual practice of a jockey but when [the respondent] comes out and gives me that bigger bump, then that is when you are getting outside of what is acceptable practice.”

216. Mr Ryan expressed the view that the appellant “couldn’t have predicted what [the respondent] did, no one could have predicted that”. He explained that when the respondent’s intention was “spoilt” (by Mr Ryan’s reaction to the “buffeting” of keeping Decoree on her rightful running line), the respondent became “more aggressive”, saying “in the end, he has done it aggressively and it’s a breach of the rules and not what you would be expecting.”

217. As Leeming JA has noted, Mr Ryan agreed in cross-examination that it is to be expected, when a jockey rides in a horse race, that there may be some degree of contact between horses, some of which may be within the rules and some of which may not. However, Mr Ryan did not accept that careless riding is “part and parcel of racing in a competitive horse race”. In the exchange following the passage extracted by the primary judge and repeated in the judgment of Leeming JA, Mr Ryan expressed the view that the careless riding rule is “too widely interpreted”. He drew a distinction in that context between minimal contact between horses and more significant pressure, which he described as “the difference between being acceptable and unacceptable”. He said:

“When you’re making a gradual attempt to get out, it goes [scil: gives] other riders the opportunity to say, well, he’s coming up and to take evasive action but when the attempt becomes more aggressive and it’s an abrupt attempt, it doesn’t give the riders like [the appellant] the opportunity to take evasive action.”

218. Separately, Mr Ryan made the point that the appellant was behind him and may not have had a clear view of what the respondent was doing. Mr Ryan’s evidence was that the respondent did not turn to look over his left shoulder before causing Darcey to bump Decoree to the left.

219. Mr Ryan was cross-examined as to the common incidence of careless riding in professional horseracing. He agreed that jockeys are charged and suspended for careless riding on hundreds of occasions every year. As already noted, statistics to that effect were in evidence in the form of extracts from a number of annual reports of Racing NSW but those statistics provided only the raw number of careless riding breaches for each of the relevant years. They provided no particulars of the manner of riding that attracted the penalty in any particular case. Mr Ryan said that, in his experience, the majority of careless riding charges resulted from jockeys allowing their mount to “shift” or trying to get in close to the rail so as to shorten the distance to be covered.

220. The appellant also called an expert witness, Mr Ray Murrihy, a professional stipendiary steward. In his report dated 11 December 2017, he described the critical manoeuvre as follows, based on his analysis of the video footage:

“9.8 [the respondent] using the home turn which gives the inside horse more leverage, can be observed riding his mount strongly and placing extreme pressure on Decoree in an attempt to force a run between Decoree and Try to Please by pushing Decoree out. This force continued for some six strides. The force of the pressure can be measured by the oblique angle of Decoree’s body as that horse is pushed out of its running line. ‘Blue Onyx’ which was positioned a little over a half-length back on Decoree’s outside in turn was being badly hampered and forced wider on the track due to the push coming from ‘Darcy’.

9.9 Critically on the point of the home turn Decoree’s hindquarters can be observed being pushed out due to a sharp and heavy contact coming from Darcy whose rider [the respondent] continued to ride and direct his mount out as he continued to attempt to force a run between Try to Please and Decoree where there was not sufficient room to do so. The near hindquarters of Decoree can be observed making contact with the off shoulder region of Blue Onyx which was some three quarters of a length back to the outside of that runner. The off fore leg of Darcy was contacted and knocked out from under it, due to the heavy bump from Decoree. In the incident Blue Onyx blundered and fell and its rider Mr Singh was dislodged and fell heavily to the track.”

221. Importantly, that evidence confirmed the occurrence of “a sharp and heavy contact coming from Darcey” on the point of the home turn which caused Decoree’s hindquarters to be pushed out.

222. In a joint report the experts agreed that careless riding charges “do occur from time to time” but Mr Murrihy added that each incident must be looked at “subjectively”. In response to a question as to how routine it is for there to be interference in a horse race, the experts again agreed that interference occurs “from time to time” but stressed that there are “varying degrees of interference”. They said that cases of jockeys being found guilty of causing falls are relatively rare.

223. For the purpose of identifying the risk that materialised, the primary judge accepted at [78] that the respondent rode Darcey to cause “deliberate contact with an adjoining horse” and was satisfied that this was careless riding.

224. In the circumstances of a horse race, where a number of horses are travelling at high speed in close proximity, such conduct carries a clear risk of collision, not only with the horse contacted, but with others, and with consequent risk to their jockeys. If the question whether, considered prospectively, the risk would have been obvious to a person in the position of the appellant is answered affirmatively, the elements of s 5L are complete and the respondent has a complete defence to the appellant’s claim.

225. In our opinion, however, the answer to the question is not in the affirmative. In any race, a jockey must expect that there will be a level of careless riding on the part of other jockeys, and the evidence, discussed at some length in the primary judgment, showed that jockeys are routinely dealt with through disciplinary procedures for breaches of the Australian Rules of Racing and for careless riding. Riding of that character is an obvious risk for the purposes of s 5F, and well within s 5L.

226. The riding by the respondent, as accepted by the primary judge, was of another character. It involved deliberate and persistent riding by the respondent so as to cause, in the words of Mr Ryan, repeated “buffeting” of Darcey against Decoree followed by “an aggressive attempt to get out” in which the respondent brought Darcey “hard to the left” and made “heavy contact” with Decoree, causing Decoree’s hindquarters “to abruptly shift out” to the left as the horses were moving into the home turn. That evidence was accepted in the findings of the primary judge.

227. As we understand Mr Ryan’s evidence, he was emphasising two features of the respondent’s riding that distinguished it in his experience. First, as noted above, he emphasised the abruptness of the contact he said was made between the two horses. It was more than the usual contact; it was an aggressive bump. Secondly, as noted above, he said that the majority of careless riding charges result from jockeys allowing their mounts to shift into the rail. Causing a horse to shift to the right into the rail when all of the horses are galloping in that same direction (clockwise) is a very different kind of act from causing a horse to bump to the left into the path of a horse that is galloping on a line of running that turns to the right. At the speed at which the horses were travelling (around 65 kph) and having regard to the fact that they were at the home turn, which is a turn to the right, a bump to the left of sufficient force to cause another horse’s hindquarters to shift abruptly to the left carried a significant risk of causing another horse to stumble.

228. The risk that another jockey would so conduct himself or herself is not, in our opinion, one that “would have been obvious to a reasonable person in the position of” the appellant. The distinction is between careless riding (as outlawed by the Australian Rules of Racing) and a deliberate act of causing a horse to collide with another and push it off its line of running (which is also outlawed). While the former is an obvious risk of the sport of horseracing, the latter, in our opinion, is not. This distinction is in accord with the reasoning of Ipp JA in Fallas v Mourlas at [52]-[55] (extracted in the judgment of Basten JA) in which his Honour distinguished, for this purpose, between negligent conduct (the risk of which may be obvious) and grossly negligent conduct (the risk of which may not be obvious). The conduct of the respondent in this case was, at least, grossly negligent (in terms of the safety of the appellant) and not obvious.

229. That means that, in our judgment, the respondent failed to establish the fourth component of the s 5L defence, and, consequently, the fifth. It follows that the appellant’s claim against the respondent was not defeated by s 5L of the Civil Liability Act.

Breach of duty

230. It then becomes necessary to consider the primary judge’s contingent conclusion that, notwithstanding the findings extracted above, the respondent’s riding did not involve a breach of his duty of care to the appellant (grounds 1-7).

231. In reaching his conclusion adverse to the appellant on this question the primary judge took into account:

“[93]   … the dynamic nature of the race and the speed at which changes took place in the relative positions of the horses and in the pace of each of them.”

232. His Honour considered that, at a point in the race, “an instant decision was required” on the part of the respondent, delay in which would commit him to a “passive alternative”: at [95]. He was not satisfied on the balance of probabilities that the respondent acted with less than reasonable care in deciding to ride Darcey as he did.

233. Of the respondent’s decision to position Darcey as he did, the primary judge said:

“[96]   The decision proved to be a bad one for the safety of other riders …”

234. His Honour appears to have considered that, having made his first decision, the respondent was locked into a position, and his choices were limited, although the choices that he made were “adverse to the safety of other riders”: at [98].

235. In our opinion those conclusions are inconsistent with the earlier findings that the respondent’s riding was careless (and deliberate) and involved a risk of accident.

236. The factual findings made by the primary judge in relation to the question of obvious risk, in our opinion, leave no room for the conclusion that the respondent was not in breach of his duty to the appellant.

237. The consequence of these conclusions is that we would uphold the appeal and set aside the judgment of the Supreme Court and give judgment for the appellant. Damages were the subject of a settlement which was approved by the primary judge pursuant to s 76 of the Civil Procedure Act 2005 (NSW). Accordingly, the orders we propose are:

1. Allow the appeal.

1. Set aside the judgment of the primary judge.

2. Enter judgment for the appellant in the sum of $5 million.

3. Order the respondent to pay the appellant’s costs.

**********

Endnotes

Amendments

23 July 2020 - [125](5) - amending "that section" to "that definition".

Fn 12 - correcting spelling of "Thomson".

26 April 2021 - [144] - amending "429" to "428".

[153] - closing the bracket after citation of "[2015] NSWCA 90 at [98]".

[154] - correcting quotation by deleting the word "him".

[155] - correcting quotation by deleting the square brackets around "his".

[156] - amending "primary's judge's" to "primary judge's".

07 May 2021 - [41] Inserting "a" between "... provision and" and "consideration..."
[47] Deleting extra "that" before "a participant..."
[57] Deleting "him" before "injury" on last line.
Footnote 23 - Amending "CLR 455" to "CLR 355".
Footnote 27 - moving "at 321" to before HCA reference.
Footnote 45 - Amending "(1998) 46" to "(1998) 44".
Footnote 56 - Amending "[55]" to "[59]".
Footnote 57 - Amending "[68]" to "[73]".

[125(3)] Amending "secured tenancy" to "secure tenancy".

[125(5)] Amending Philipps" to "Phillips".

[141] Amending "Nature of the risk" to "Nature of risk".

Fn

11 May 2021 - [30] Deleted "what" before "[within..."; Replacing "them" with "the defined term]"

[50] Deleted "as" between "to show it..." and "was not one..."

Decision last updated: 11 May 2021