Lynch v Cavallo [2018] NSWDC 301 | Case summary

Obvious risks of dangerous recreational activities

The term "obvious risk" is defined in s 5F of the CLA as follows: "(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 are 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."
In s 5K of the CLA the phrase "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."
In s 5K of the CLA the phrase "dangerous recreational activity" means "a recreational activity that involves a significant risk of physical harm".
Against the background of those definitions, s 5L of the CLA provides as follows: "(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."

The decision in Goode v Angland

This case also involved a claim brought by one professional jockey against another arising out of a race fall. A point of distinction on the facts was that the injured jockey claimed in negligence simpliciter, and there was no suggestion that the defendant jockey had breached a Rule of Racing.
On the construction of s 5L of the CLA the lead judgment was that of Justice Leeming. Justices Beazley and Meagher agreed with Justice Leeming's analysis of s 5L.
In dealing with the issue of "obvious risk", Justice Leeming noted that it was common ground, both at trial and on appeal, that the risk that a jockey might fall from a horse during a race and suffer injury was an obvious risk, and that horse racing involved a significant risk of physical harm. The appeal proceeded on the footing "that if horse racing is a 'recreational activity', then s 5L would apply, and be dispositive" - at [183].
His Honour held that even if a plaintiff establishes duty and breach and causation, if s 5L applies, then the defendant is not liable to the plaintiff. It is to be regarded as a defence to the claim. The onus of establishing the defence rests with the defendant and there is much to be said for dealing with the defence at the outset - at [185].
Justice Leeming agreed with the conclusion of the trial judge that there is no distinction drawn in the CLA between sports participated in for recreational purposes, as opposed to professional purposes. He held that horse racing is a sport which engages the first limb of the definition of "recreational activity" in s 5K of the CLA. Thus, on the basis on which the appeal proceeded, that was sufficient to resolve the appeal - at [211].
The concessions made, upon which the appeal proceeded, were not made in the present case. Senior Counsel for the plaintiff drew attention to several factual points of distinction. The strongest of these was that in the present case there was a charge of a breach of an Australian Rule of Racing, to which the defendant pleaded guilty, whereas that was not so in Goode. Senior Counsel for the plaintiff in the present proceedings did not make the concession that if certain elements were established, s 5L applied and would preclude the plaintiff's claim.
Goode is a decision which needs to be understood against the facts in the case. I do not regard it as binding on each and every case where one professional jockey sues another because a horse has fallen in a race. While there is a significant risk of harm arising from participation in a horse race, I do not think that it necessarily follows that in each and every case there is an "obvious risk" of suffering harm. Most, if not all, sports and recreational activities are governed by rules. Participants in those activities accept the risk that if the sport or game is played within the rules, they could be injured. For example, a footballer injured by a legitimate tackle in a game cannot be heard to complain if he or she suffers injury when the game is played within the rules. Every participant in such a dangerous recreational activity engages in it on the basis that other participants will participate within the rules which govern the sport. If it were otherwise, every sport or recreational activity would be akin to bare knuckle fighting from the 19th century, or trial by battle from an earlier time.
Society generally operates on the premise that if there are rules or laws in place, people are entitled to assume that they will be followed by others. Every time a driver is making a trip in a motor vehicle, he or she can observe other drivers breaking the road rules. That does not mean that the driver is taking on an "obvious risk" of others breaking the rules and thus would have no redress if injured by a person driving illegally.
To illustrate the point that not every risk is an obvious risk, one needs to look no further than the decision of the Court of Appeal in Alameddine v Glenworth Valley Horse Riding Pty Limited [2015] NSWCA 219. The appellant in that case was injured while riding a quad bike at a recreational facility operated by the respondent.
It was common ground that the activity of riding the quad bike was a "recreational activity". The court found that it would have been obvious to a reasonable person in the appellant's position that significant injury might be suffered if that person, or another participant, were unable to properly control their quad bike at [46].
What happened to the appellant was that she was directed to follow the instructor who was riding his own quad bike. That instructor travelled at a speed which was too fast for the learner riders behind him to cope with. When trying to keep up with the instructor, the appellant crashed and was injured.
Justice Macfarlan, with whom Justices Simpson and Campbell agreed, said at [46]: "However, I do not consider that the risk of injury resulting from an instructor riding faster than was safe for inexperienced or young participants and effectively giving such persons no real choice but to also do so in order to keep up with him, was a risk inherent in or incidental to the quad bike riding activity as it was presented to the appellant and her family. To uphold the defence under s 5L in such circumstances would be inconsistent with the evident policy underlying s 5L to preclude a plaintiff suing where (and only where) the plaintiff has been injured as a result of him or her engaging in a recreational activity when the risk that materialised should reasonably have been obvious to them."
On the present limited state of the evidence, supplemented by reference to the pleadings, I find that it cannot be said that the risk of injury resulting from a fellow rider breaching the rules of racing was a risk inherent in or incidental to riding in the 2015 Mudgee Cup, or was necessarily an obvious risk.
Counsel for the defendant submitted that the pleading itself disclosed that the plaintiff knew that the risk of a fellow jockey riding in breach of the rules of racing was an obvious risk, with the result that s 5L would provide a complete defence to the proceedings, which should therefore be dismissed at this interlocutory stage. The submission was based upon a consideration of paragraph 13 of the Statement of Claim which reads as follows: "The risk of harm that existed at the time of the incident, and materialised, was the risk of fellow riders being injured as a result of the defendant's careless, reckless, improper, incompetent or foul riding in pulling in too close in front of another racing horse, causing it to fall and create a hazard for other horses and riders."
Clearly paragraph 13 of the Statement of Claim picks up the words of Australian Rule of Racing 137 breached by the defendant. As previously recited, paragraph 3 of the Statement of Claim pleaded that the duty to exercise reasonable care included a duty to ride the race in compliance with the Australian Rules of Racing.
In any case governed by the CLA, it is incumbent upon the plaintiff to identify the particular risk of harm that existed. Until such risk is identified, it is impossible to consider what reasonable precautions should have been taken against that risk. In my view it cannot be said that because a pleading identifies a risk of harm (in this case the risk that the defendant would ride in breach of the Rule), that means that the risk would have been obvious to a reasonable person in the position of the plaintiff - s 5F(1) of the CLA.
Further, the notion that it is obvious that there is a risk that a professional sportsman will ride in breach of a Rule of Racing, which carries severe penalties for his livelihood, is not a conclusion which can be reached in the absence of evidence. Such a conclusion might be obvious if rule 1 of the Australian Rules of Racing was to the effect that the rules did not apply and were to be completely ignored. However, the rules are there to be followed, and the fact that the defendant pleaded guilty to the charge and received a suspension from his occupation is an indication that the defendant not only was bound by the rules, but accepted that he was so bound. In those circumstances it is hard to see, at this interlocutory stage, why such an assumption should not have been made by everyone riding in the race, including the plaintiff.

Lynch v Cavallo

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