Lynch v Cavallo

The plaintiff's case as pleaded

1. The plaintiff's case, as pleaded in the amended statement of claim, alleges as follows: "Duty of Care 1. At all material times, the Plaintiff was a jockey with Racing NSW and was the jockey of a horse named 'Goldstone' in Race 7: Mudgee Cup 1600m (herein 'the Race') held on Friday 4 December 2015. 2. At all material times, the Defendant was a jockey with Racing NSW and was the jockey of a horse named 'Lancelot' in the Race. 3. The Defendant owed to the Plaintiff a duty of care to exercise reasonable care to prevent injury to the Plaintiff. a) This included a duty to ride in the Race in compliance with Australian Rules of Racing. Material Facts 4. On Friday 4 December 2015, the Plaintiff and the Defendant were jockeys of horses racing in the Race. 5. Near the 1200m mark of the Race, the Defendant permitted his horse to shift in toward the other horses in the race. 6. When the Defendant did so, his horse was not sufficiently clear of another horse, named 'Devilgate Road'. 7. This caused 'Devilgate Road' to clip the heels of 'Lancelot'. 8. As a result, 'Devilgate Road' blundered and fell to the ground, dislodging its rider. 9. At that time, 'Goldstone' and the Plaintiff were behind 'Devilgate Road'. 10. As a result of 'Devilgate Road' falling, 'Goldstone' blundered and fell to the ground, dislodging its rider, the Plaintiff. 11. As a result, the Plaintiff was seriously injured. 12. The Defendant pleaded guilty to a charge of careless, reckless, improper, incompetent or foul riding under AR 137(a) of the Australian Rules of Racing. Breach of Duty of Care 13. 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. 14. The risk of injury was foreseeable. 15. The risk of harm was not insignificant. 16. The Defendant, his agents and/or his employees failed to take reasonable care to prevent that risk of harm from materialising: Particulars of Negligence a) Failed to take any or any adequate precautions for the safety of the Plaintiff; b) Exposed the Plaintiff to a risk of injury which could have been avoided by reasonable care; c) Rode 'Lancelot' carelessly; d) Rode 'Lancelot' recklessly; e) Rode 'Lancelot' improperly; f) Rode 'Lancelot' incompetently; g) Rode 'Lancelot' foully; h) Permitted 'Lancelot' to shift in when it was insufficiently clear of 'Devilgate Road'; i) Shifted in unsafely; j) Failed to exercise due and proper care; k) Failed to maintain control of his mount; I) Rode at a speed inappropriate for the circumstances; m) Failed to observe 'Devilgate Road' behind; n) Failed to keep any or any proper lookout for other horses and riders; o) Failed to avoid colliding with 'Devilgate Road'; p) Collided with 'Devilgate Road'; q) Failed to give way to 'Devilgate Road'; r) Failed to safely position himself in the saddle of 'Devilgate Road'; s) Failed to warn the Plaintiff. 17. The Defendant therefore breached the duty of care that he owed to the Plaintiff. Causation 18. As a result of the aforementioned breach of duty, the Plaintiff was injured and thereby suffered, and will continue to suffer, loss and damage as particularised in the Statement of Particulars with this Statement of Claim. 19. The Plaintiff claims that the injury, loss and damage were caused as a result of the negligence of the Defendant and that but for that negligence, the Plaintiff would not have suffered injury. 20. The Defendant ought to be found liable for the damages sustained by the Plaintiff."
2. In its defence, the defendant relied on several defences, which included reliance on s 5L of the Act: "that the injury, loss and damage suffered by the plaintiff (which is not admitted) arose in circumstances where the plaintiff was exposed to an obvious risk of a dangerous recreational activity of which the plaintiff ought to have been aware".

Consideration

1. It was submitted on behalf of the plaintiff that his action against the defendant would be bound to fail by reason of the provisions in Division 5 of Part 1A of the Act, which relevantly provide as follows.
2. Section 5K provides: "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"
3. Section 5L of the Act provides: "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."
4. In support of his application for approval of the settlement, the plaintiff relied on the decision of Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152, in which the plaintiff in the present case was the defendant at the trial and the respondent on appeal. In Singh v Lynch, Mr Singh had been a jockey on a horse which had competed in a race at the Tamworth racecourse on 14 August 2012, in which the plaintiff had also been a jockey of another horse. In that case, the evidence of Mr Ryan (another jockey who took part in the same race) established that it was obvious to any reasonable participant in the Tamworth race that there was a risk that another rider would ride carelessly or recklessly in breach of r 137(a) of the Australian Rules of Racing by riding out from the rail and carrying another horse with him, thereby causing that horse to intrude on the path of the appellant's mount and bring him down, causing him injury. Mr Ryan agreed that the possibility that a jockey's mount would be the victim of interference caused by another jockey arose in every race.
5. Indeed, Mr Ryan was asked about the incident in the present case, as is recorded in the reasons of Payne JA at [171] as follows: "Mr Ryan illustrated the risks of a serious fall being caused by interference by reference to a recent fall in the Mudgee Cup: 'Q. Do you recall being involved in a fall at the Mudgee Cup? A. Yes. Q. Was that a serious fall? A. Yes. Q. Are you able to tell his Honour what you understand the cause of that fall might have been? A. The cause of that fall, at the conclusion of the stewards inquiry, was that Tony Cavallo [a jockey] insufficiently crossed - I can't remember the name of the rider now - causing that horse to fall. And then myself, [the respondent] and Cody Nestor [another jockey] all come over the top of that mount. Q. [The respondent] was injured in that fall, wasn't he? A. He was, yes. HIS HONOUR Q. When you say, "crossed", is this somebody trying to cross to the rail? A. He shifts when it's insufficiently clear, yeah. Careless riding breach. WARD Q. And the stewards treated that as a careless riding incident, did they? A. Yes.'"
6. In Singh v Lynch, the Court of Appeal (Basten, Leeming, Payne and McCallum JJA and Simpson AJA) was unanimous in finding that horseracing was a sport within s 5K(a) of the Act and therefore a dangerous recreational activity. As it was not in issue that horseracing involved a significant risk of physical harm, horseracing was accepted to be a "dangerous recreational activity". However, there was a division of opinion on the Court on the question of "obvious risk". The majority (Basten, Leeming and Payne JJA) concluded that the appellant's injury was the materialisation of an obvious risk. At [51]-[52], Basten JA considered that the determination of "obvious risk" did not invoke a legal concept and that the statutory language had to be applied in terms. His Honour said that there was "limited value in further exegesis". His Honour agreed with what Leeming and Payne JJA said in support of the conclusion that the appellant's injury was the materialisation of obvious risk. Leeming JA said, at [139]-[140]: "139 I see no reason to doubt that the risk of a fall from a horse which came into contact with another horse following the careless riding of another jockey answers the description of the materialisation of an obvious risk of competing in a race. True it is that one might invoke notions of 'gross negligence' or recklessness or even deliberateness to describe the respondent's riding, but the issue posed by s 5L turns not so much on the range of ways by which the risk may be characterised, but whether the risk of a fall as a result of another jockey's careless riding, constituted by deliberately making contact with another horse, and contrary to the rules of racing, was the materialisation of an obvious risk. I think it is. I see no reason to doubt the findings, based on testimonial evidence and statistics, made by the primary judge at [86]: '[86] … There must also be in every race a risk that a jockey, feeling the obligation to give his mount its best chance in the race and having to make splitsecond judgments about how he should ride in order to achieve this, will ride in a manner that he knows will exceed the rule and that, in the event, proves to be dangerous. There must always be a risk that through poor judgment a jockey will urge his mount forward in the hope of easing a competitor out of the way without infringement of the rules, or predicting that in some other way a run will open up, and then finds himself in a situation of danger from which he will seek to escape by pushing the competitor heavily and carelessly aside.' 140 It does not follow that any injury suffered by a jockey falling from a horse in a race will be caught by s 5L. Although obvious risks are all too familiar, there are also risks which are not obvious. Suppose the occupier of a racetrack was found to have negligently permitted rabbits to burrow under the course, and a horse fell when it put its hoof in a burrow. Although every case will be a question of fact, it seems probable that that would not be the materialisation of an obvious risk."
7. Payne JA set out the passage extracted above from Mr Ryan's evidence and concluded that it was "dispositive" of the question of the obviousness of the risk.
8. The minority (McCallum JA and Simpson AJA) concluded that the appellant's injury was not the materialisation of an obvious risk. Their Honours said: "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."
9. Mr Singh applied for special leave to appeal to the High Court. The High Court (Gordon, Gageler and Edelman JJ) refused the application on 11 February 2021: Singh v Lynch [2021] HCATrans 12. In refusing the application, Gageler J said: "We are not persuaded that the appellant would have sufficient prospects of success on appeal to warrant the grant of special leave to appeal."
10. The question of obviousness of risk under the Act in the context of dangerous recreational activities arose again in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263. The plaintiff, Emily Tapp, fell from her horse when competing in a campdraft event and suffered a significant spinal injury. She was unsuccessful at first instance and appealed to the Court of Appeal. Her appeal was dismissed, by majority (Basten and Payne JJA, McCallum JA dissenting). Relevantly, the majority found that there was no error in the primary judge's finding that the injury the plaintiff suffered was the result of the materialisation of an obvious risk of a dangerous recreational activity. The plaintiff sought to distinguish Singh v Lynch on the basis of an argument that her fall had been caused by the deterioration of the surface of the arena on which the campdraft event had taken place. The majority found that the plaintiff had not established that a cause of her fall was a deterioration in the surface of the arena and that the exercise of reasonable care required the defendant to suspend the event until the arena was resurfaced or ploughed. McCallum JA, in dissent, considered that there was powerful evidence that the surface of the arena had deteriorated and that this was a cause of the accident.
11. On 16 April 2021, the High Court granted special leave to appeal: Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2021] HCATrans 74. In so far as these matters can be discerned from the transcript, it appears that special leave was granted because of the submission made on behalf of Ms Tapp was that there was strong evidence that Ms Tapp's horse slipped because of the condition of the ground, which was, accordingly, a cause of the fall. It would appear that the grant of special leave in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd does not cast doubt on the correctness of Singh v Lynch, in which the cause of the fall was the conduct of another rider, which was held to be an obvious risk. Indeed, the situation in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd would appear to correspond with the category envisaged by Leeming JA in the passage extracted above from [140] of his Honour's judgment in Singh v Lynch.
12. Mr Malouf, who appeared on behalf of the plaintiff, at the hearing of the application for approval, informed me that he was instructed to obtain the approval. However, he expressed reservations about whether the High Court's ultimate decision in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (which has not yet been allocated a hearing date) might affect the identification of obvious risk and, accordingly, the plaintiff's prospects of success in the present case. His reservation derived from the view of the minority in Singh v Lynch that, while careless riding was an obvious risk, deliberate foul play was not an obvious risk of horseracing. He noted that, in the present case, the plaintiff had pleaded not only carelessness on the part of the defendant but also "foul" or "improper" riding. While this distinction was immaterial to the majority in Singh v Lynch, it was crucial to the minority view. It is this matter which caused Mr Malouf to refrain from fully endorsing the application for approval which he was instructed to make on behalf of the plaintiff. Mr Miller made it clear that the defendant would not extend the offer beyond today. I accept Mr Miller's submission that, in light of the refusal of the special leave application in Singh v Lynch, there were no real prospects of the High Court's decision in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd affecting the plaintiff's prospects of success in the present case. Even were the plaintiff to succeed in establishing something beyond mere negligence against the defendant, this would not be sufficient to defeat the defendant's defence under s 5L of the Act in light of the authority of Singh v Lynch, the correctness of which is highly unlikely to fall for consideration in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd.

Conclusion

1. A settlement of proceedings on the basis of a judgment in favour of the defendant with no order as to costs will be in the interests of the plaintiff if the case is, in effect, bound to fail. If there are reasonable prospects of success of such action, such a settlement would not be in the plaintiff's interests. I am satisfied that, on the authority of Singh v Lynch, the plaintiff's action would fail at trial. No additional feature has been identified which would bring it into the category referred to by Leeming JA at [140] in Singh v Lynch, to which it would appear the case of Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd might belong. If the plaintiff were successful on liability, it would appear from the experts' reports tendered on the application, that he would be entitled to substantial damages (for ongoing cognitive impairment, together with physical injuries sustained in the accident). However, I do not consider the plaintiff to have any real prospects of success. I have also taken into account Ms Mullins' evidence that neither she nor the plaintiff has any wish to pursue a claim with no present prospects of success. Nor do they wish to run the risk of an adverse costs order against them.
2. As pleaded in his amended statement of claim, Mr Lynch's injuries were caused by Mr Cavallo's method of riding his horse in the Mudgee Race. In these circumstances, where no other correlative cause has been identified, there is no reason to distinguish Singh v Lynch. Because Mr Lynch's injuries were caused by the materialisation of an obvious risk of a dangerous recreational activity engaged in by him, the defendant would not, if the matter were permitted to proceed to trial, be found liable for the harm caused to him.

Orders

1. For the reasons given above, I make the following orders: 1. Pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW), approve the settlement of the proceedings on the basis of the orders in (2) and (3) below. 2. Judgment for the defendant. 3. Make no order as to costs with the intention that each party is to bear his own costs.

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