Section 5K goes pro!

Key Points
  • Professional sport activities fall within the definition of recreational activity under section 5K which includes “any sport” and is not limited to recreational or leisure activities.
  • A horse riding incident was an obvious risk of a dangerous recreational activity.
  • The defence provided in section 5L excluded liability for the harm suffered during a race, as it was the materialisation of an obvious risk of a dangerous recreational activity.

On 29 June 2009, 2 professional jockeys were involved in a riding accident during a professional horserace at Queanbeyan.  Mr Goode was riding a horse named Shot of the Rails and Mr Angland was riding Port Gallery.

Mr Goode suffered catastrophic injuries when he was thrown from his horse after Mr Angland’s horse came into contact with it. He alleged that Mr Angland’s negligence was the cause of his injuries.

Mr Angland denied the allegations of negligence and argued section 5L of the Civil Liability Act 2002 should apply as it excluded “liability for harm suffered from obvious risks of dangerous recreational activity.” Mr Goode was unsuccessful.

Aside from technical issues surrounding the conduct of both jockeys during the race, the Court had to also consider whether professional sport, including horse racing, fell within the definition of “recreational activity” as defined by section 5K of the Civil Liability Act 2002.

The court considered there was an “obvious risk that a rider might fall from a horse and the risk that serious injury might be caused to a rider by a fall are obvious risks of riding a horse in almost any situation.”

There was no dispute that horse-riding in general and/or professional horse-riding were dangerous activities. The issue was whether the definition of “recreational activity” also includes professional sports. Section 5K defines “recreational activity” to include:

  • any sport (whether or not the sport is an organised activity), and
  • any pursuit or activity engaged in for enjoyment, relaxation or leisure.

The Court noted the definition of recreational activity expressly includes a general reference to “any sport” and as such, there was no room for an argument that seeks to distinguish “between sport that is undertaken or pursued for enjoyment, relaxation or leisure and sport that is undertaken or pursued as a profession or occupation.”

The court defined sport as “an activity involving physical exertion and skill in which an individual or team competes against another or others for entertainment or enjoyment and/or as a job… [and were] unaware of any definition of sport that limits it to purely recreational or leisure activities or that excludes professional sport.” Therefore, it was held that professional horse racing was a sport that fell within the definition of section 5K.

The Court determined “Mr Goode suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity so that section 5L of the Civil Liability Act operates to exclude Mr Angland’s liability in this case.”

Post by Shabnam Mahabat and Freida Stylianou 

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