Singh bhnf Ambu Kanwar v Lynch

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

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

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.
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.

Grounds of appeal

1. 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.
2. 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. 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

1. 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.
2. 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] 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.
3. 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.
4. 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]

Statutory scheme

1. 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]
2. 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.
3. 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.
4. 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.

(a) the statutory language - ordinary meaning

1. 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.
2. 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.
3. 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.
4. 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.

(b) extrinsic material

1. 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."
2. 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.
3. 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."

(c) reliance on the defined term

1. 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.
2. 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.
3. 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."
4. 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."

(d) authority

1. 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."
2. 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.
3. 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]
4. 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."

(a) characterisation of risk - principles

1. 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.
2. 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."

(b) trial judge's characterisation of risk

1. 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).
2. 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."
3. 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.
4. 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."
5. 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]

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

1. 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."

(d) was the alternative characterisation of risk material?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Breach of duty

1. 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]
2. 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.
3. 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. …"
4. 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."

Conclusion

1. The appeal should be dismissed; the appellant must pay the respondent's costs in this Court.
2. 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."
3. 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.
4. 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].
5. 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].

Horseracing is a dangerous recreational activity

1. On the authority of Goode, by participating in horseracing the appellant engaged in a recreational activity. However, the appellant argued that Goode was wrongly decided, and that (professional) horseracing is not a recreational activity. It is necessary first to consider that argument.
2. In ordinary parlance, horseracing, even at the elite (and professional) level, is a sport. The appellant's argument however was that when what otherwise would be a sport is "participated in by professionals for taxable reward" it ceases to be a "sport" within the meaning of s 5K(a) and becomes a "professional activity". We do not accept that argument. Its underlying and unstated premise is that "sport" and "professional activity" are mutually exclusive. That premise is, in our opinion, false. As illustrated by Leeming JA in Goode, it is not possible to compartmentalise "sport" engaged in for purely "recreational" (for enjoyment, relaxation or leisure) purposes and "sport" engaged in for financial gain.
3. Paragraph (a) of s 5K does not, as does par (b), limit the "recreational activity" there defined to a pursuit or activity "engaged in for enjoyment, relaxation or leisure". On the plain language of par (a), any sport (whether or not an organised activity) comes within that paragraph, regardless of the purpose (or purposes) for which it is engaged in. Once it is accepted that an activity (such as horseracing) may be both a sport and a source of income it is unnecessary to go beyond par (a) of s 5K and consider the definitions contained in pars (b) and (c). While there are questions concerning the construction of par (c), those questions do not arise in this case.
4. The appellant advanced a construction of par (a) that limited its meaning by reference to "recreational". As Leeming JA has demonstrated, that approach should not be adopted.
5. We agree, for the reasons given by Leeming JA and Meagher JA and accepted by Beazley P in Goode, and further developed by Leeming JA in the present case, that horseracing is a sport within par (a) of s 5K and therefore a recreational activity. The first component of the defence provided by s 5L is satisfied.
6. It was not in issue that horseracing involves a significant risk of physical harm. That has the necessary consequence that horseracing is "a dangerous recreational activity". The second component of the s 5L defence is satisfied, as is the third, that the plaintiff suffered harm.

Materialisation of an obvious risk of horseracing

1. The remaining question raised by s 5L is whether the harm the appellant suffered was the result of the materialisation of an "obvious risk" of horseracing. That requires: 1. identification of the risk; 2. determination whether the risk, as identified, was "obvious"; and 3. determination whether the harm suffered by the appellant resulted from the materialisation of that risk.

Identification of the risk

1. In Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, after an in-depth analysis of s 5L, Leeming JA, with whom Payne and White JJA agreed, arrived at five propositions with respect to the application of s 5L, which may be summarised as follows: 1. the "obvious risk" is to be specified with "a degree of generality"; 2. nevertheless, the specific risk must be sufficiently precise to capture the harm which results from its materialisation on the facts of the particular case; 3. the specification of the obvious risk involves both foresight (what, given the occurrence in which the harm is suffered, the plaintiff might reasonably be expected to have anticipated) and hindsight (determination of the causal connection); 4. a close causal connection between the harm suffered and the risk of harm of which (the defendant contends) the plaintiff ought to have known is required; 5. the proper characterisation of the risk is "fact dependent" and will turn on the evidence in any particular case in relation to two aspects: 1. "what occurred" and 2. "why the risk is said to be obvious" (at [70]-[74]).
2. Propositions (a) and (b) demonstrate that the exercise involves striking a balance between too broad and too narrow a specification of the risk. As Leeming JA went on to say, there will be difficult cases. There may not always be a clear answer. The answer may, and often will, depend upon the evidence adduced by the defendant in discharge of its onus of proving each of the elements of s 5L.
3. The primary judge identified the risk as: "[72] …the risk of [the appellant's] mount falling, bringing him to the ground and causing him injury."
4. His Honour considered that that risk would have been obvious to a reasonable person in the appellant's position and was thus an obvious risk (as defined) and that, therefore, the appellant's injury resulted from the materialisation of an obvious risk of horseracing. On that view, all the elements of s 5L were satisfied and the appellant's claim was defeated. If the characterisation of the risk was correct, the analysis was also correct.
5. At trial the appellant proposed an alternative formulation of the risk of harm. That alternative was recorded in the primary judgment (at [73]) as: "[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."

Whether the risk was obvious

1. By ground 12, the appellant challenged the finding that, even on the alternative formulation proposed on his behalf, the risk was an obvious one.
2. 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."
3. 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)

Breach of duty

1. 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).
2. 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."
3. 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.
4. 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 …"
5. 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].
6. 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.
7. 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.
8. 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. 2. Set aside the judgment of the primary judge. 3. Enter judgment for the appellant in the sum of $5 million. 4. Order the respondent to pay the appellant's costs.

Endnotes

1. Singh v Lynch [2019] NSWSC 1403 ("Singh").
2. (2017) 96 NSWLR 503; [2017] NSWCA 311.
3. Statement of claim, 14 July 2015, particulars of breach, (l) and (m).
4. Singh at [6].
5. Singh at [10].
6. Singh at [10(6)].
7. Singh at [3].
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).
10. Fallas at [29].
11. See, for example, Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 at [1] (Gleeson CJ).
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.
13. Commonwealth of Australia, Review of the Law of Negligence - Final Report (September 2002) ("Final Report").
14. Final Report, recommendation 11.
15. Fallas at [45].
16. Ibid.
17. [1926] AC 725 at 731.
18. See, generally, Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39; Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58.
19. (2000) 201 CLR 552; [2000] HCA 41.
20. Rootes v Shelton (1967) 116 CLR 383.
21. Interpretation Act 1987 (NSW), s 35(1)(a).
22. (1994) 181 CLR 404 at 419; [1994] HCA 54.
23. (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ).
24. (2015) 256 CLR 1; [2015] HCA 14.
25. Final Report, recommendation 12.
26. Goode v Angland at [189].
27. (1981) 147 CLR 297 at 321; [1981] HCA 26.
28. Workers Compensation Act 1987 (NSW), s 10 (journey claims).
29. [2011] TASSC 19.
30. Dodge at [262]-[264].
31. Dodge at [265].
32. Dodge at [270].
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.

Amendments 23 July 2020 - 125 - 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..." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2021