Revisiting obvious risk in dangerous Recreational Activities

September 8, 2020

What this means for Insurers ….

The New South Wales Court of Appeal has once again taken into consideration whether the ‘dangerous recreational activity defence’ applies in the context of a professional horse race.

The NSW Court of Appeal has dismissed the appeal of Hari Singh (Appellant), a professional jockey, against Glenn Lynch (Respondent), another jockey, arising from serious injuries sustained when his horse fell during a race meeting at the Tamworth Racecourse in August 2012.

This result provides reassurance for defendants/insurers seeking to rely on the dangerous recreational activity defence in Section 5L of the Civil Liability Act 2002 (NSW) (CLA). The Court confirmed that a wide (but not too wide) characterisation of the risk of harm is appropriate when determining what constitutes an ‘obvious’ risk.

 

Case summary: dangerous riding and ‘obvious’ risk

The fall was caused by the Respondent riding his horse so as to push the horse alongside the Appellant into the path of the Appellant’s horse. It involved an aggressive, deliberate bump.

The Appellant sued the Respondent in negligence.

The Supreme Court dismissed the proceedings because (a) the Respondent did not breach his duty of care to the Appellant, and (b) his injury was caused by the materialisation of an obvious risk which arose during a dangerous recreational activity.

 

Definition of a dangerous recreational activity

The Civil Liability Act 2002 (NSW) (CLA), Section 5K, defines a dangerous recreational activity as a recreational activity that involves significant risk of physical harm.

“Recreational activity”, under the CLA, 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.

It has recently been held by a five-judge Court, that professional horse racing is a recreational activity and is in fact within the defined meaning of recreational activity in Section 5K of the CLA.

However, reckless or deliberate wrongdoing can be an obvious risk of horse racing. Under Section 5L of the CLA, there is no liability for harm suffered from obvious risks of dangerous recreational activities. This section applies whether the plaintiff is aware of the risk or not.

 

How did this decision come about?

The unanimous decision came as a result of Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152.

Lynch, the defendant, was found to have not breached his duty of care to Singh, the plaintiff. Singh’s injury was caused by an obvious risk which arose during a dangerous recreational activity.

There is no disputing that horseracing is a dangerous recreational activity; however, the Court of Appeal has noted that not all injuries suffered by jockeys would be caught by the Section 5L defence of the CLA.

 

What this decision means for you

This decision by the NSW Court of Appeal has ultimately given comfort to insurers who provide cover for professional sporting activities that carry a significant risk of harm to participants.

This decision provides a timely reminder that section 5L of the CLA can be relied upon by sporting organisations and their insurers to provide a defence not only in respect of claims where a person is injured while participating recreationally in a sport but also in respect of those sports where people are participating on a professional basis and/or being remunerated for their participation.

Therefore, if a claimant suffers an injury as the result of an obvious risk of horse racing, then accountability for that injury will be omitted.

 

How Gow-Gates can help

Gow-Gates Insurance Brokers is a leader in providing risk solutions for the Australian sporting industry. Our specialist team of industry professionals have extensive knowledge of the sporting industry and excellent insurer relationships to consistently deliver leading insurance and risk programmes for sporting organisations and businesses.

We have over 50 years’ experience in arranging specialist programmes for some of the highest risk sports in the country. We have pioneered self-insurance models which allow sporting organisations to minimise their costs and maximise the benefits from their insurance programme.

Please don’t hesitate to contact us for further details.

 

Gow-Gates Insurance Brokers Specialist Sports Team:

P: 02 8267 9999

E: sport@gowgates.com.au

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