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"Dangerous recreational activity" is not confined to non-professional sports December 7, 2017

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

Goode v Angland [2017] NSWCA 311


The race was recorded on video by cameras located at various points around the racecourse. Still photographs were derived from this footage. Both the photographs and the video were in evidence at trial. Both parties sought to use this evidence to demonstrate, with the assistance of expert evidence, the relative positions and movement of the horses.

The primary issues on appeal were:

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

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

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

The Court held, dismissing the appeal:

In relation to (i):

Leeming JA (Beazley P and Meagher JA agreeing)

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

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

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

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

Dodge v Snell [2011] TASSC 19, not followed

In relation to (ii):

Beazley P (Meagher and Leeming JJA agreeing):

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

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

In relation to (iii):

Beazley P (Meagher and Leeming JJA agreeing):

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

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