An exception to liability in negligence exists where a person sustains a personal injury from an obvious risk of engaging in dangerous recreational activities. The New South Wales Supreme Court recently handed down an interesting decision in Goode v Angland which considered this exception and in particular whether professional horseracing was a dangerous recreational activity.
Mr Goode (the plaintiff) and Mr Angland (the defendant) were participating in a professional horserace at the Queanbeyan Racecourse. Mr Goode alleges that Mr Angland did not leave a reasonable distance between his horse and Mr Goode’s horse which caused Mr Goode’s horse to clip the rear heels of Mr Angland’s horse and fall. Mr Goode was thrown from his mount and sustained catastrophic injuries rendering him confined to a wheelchair for the rest of his life.
Mr Goode brought an action against Mr Angland in negligence for the injuries he sustained from the horseracing accident. Provisions of the Civil Liability Act 2002 (NSW) governed the claim. Analogous provisions exist in the Civil Liability Act 2003 (Qld).
Dangerous recreational activities exception
Section 5L(1) of the Civil Liability Act 2002 (NSW) provides:
- 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.
Section 5K outlines some important definitions relevant to the above provision:
“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.
“dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm.
“recreational activity” includes:
- any sport (whether or not the sport is an organised activity), and
- any pursuit or activity engaged in for enjoyment relaxation or leisure, and
- 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.
Whether professional sports, like horseracing were excluded from the definition of ‘sport’ within the definition of ‘recreational activity’?
The Court held that the claim was barred by the operation of the dangerous recreational activities exception in s 5L. This was because the definition of ‘sport’ within the definition of recreational activity included professional sport. The Court rejected Mr Goode’s argument that professional horseracing should be distinguished from the definition of ‘sport’ because it was not for the pursuit of enjoyment, relaxation or leisure. The Court also rejected the Tasmanian decision of Dodge v Snell where the Court concluded that recreational activity did not include professional sports. Rather Harrison J in deciding this matter explained:
The definition of recreational activity in a way that includes “any sport” leaves no room for an argument that relevantly enlivens the distinction between sports that is undertaken or pursued for enjoyment, relaxation or leisure and sport that is undertaken or pursued as a profession or occupation (at ) (emphasis added).
This lead to his Honour finding that professional horseracing fell within the definition of recreational activity required by the exception in s 5L of the Civil Liability Act. Therefore Mr Goode’s injuries were a result of the materialisation of an obvious risk of a dangerous recreational activity which excluded Mr Angland from liability.
In addition to the applicability of the exception, the Court held that the video material and expert opinions of the incident also proved that Mr Angland had not been negligent.
The decision of Harrison J is important as it recognises that the s 5L negligence exception not only applies to sporting activities engaged in for leisure but can also apply to injuries sustained from dangerous professional sporting activities where the risk is obvious.