Releasing the hounds – Defining ‘recreational activity’

  • 18 Sep 2020

Horse racing may be the ‘sport of kings’, but greyhound racing can still hold court.  

On Anzac Day 2015, Mr Carter, a greyhound owner and enthusiast, attended Wauchope racetrack to race three of his dogs. While there, he agreed to operate the catching gate as a favour to the club, something he had never done before.
Mr Carter was in position to perform his duties as the ‘catching gate operator’ when he realised a dog had fallen during the race. His attention was momentarily focused on the fallen dog, and not the lure, which approached him at 70km/h, striking his leg, causing him to fall and be pinned by the bottom of the gate.
Mr Carter sued the Hastings River Greyhound Racing Club (Club), which had control and management of the track, in negligence. The Club succeeded at first instance and Mr Carter appealed.  
The Court of Appeal was asked to determine whether the “the operation of the catching pen gate” was a recreational activity for the purposes of s 5K:
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.

The Court found the first limb, s 5K(a), was not engaged as operating the catching pen was not a sport.
As regards the second limb, s 5K(b) the Court found that satisfaction from performing a task did not equate with pursuing that activity with the goal of deriving enjoyment, relaxation or leisure.[1]  The Court found the trial judge’s finding in this regard was erroneous.[2]
With respect to the third limb, s 5K(c) Mr Carter argued that a “literal interpretation” would create an unintended consequence of the width of s 5K.[3]
In discussing this issue, the Court referred to Leeming JA’s description of s 5K as “triply disjunctive” in Goode v Angland.[4]  The first limb concerns the character of the activity, the second the purpose of the activity, and the third limb the location.[5]
The Court agreed that a literal interpretation of 5K(c) might result in “artificiality”.[6]  For example, a person walking home through a park would be “at a place” where people engage in relaxation or leisure for the purposes of the third limb.
The Court noted the artificiality was however is of little consequence, as the purpose of the definition is for the application of s 5L, where liability is denied only where the recreational activity is a dangerous one and the risk that materialises is obvious.[7]  The Court therefore found that 5K(c) was satisfied and that Mr Carter had engaged in a recreational activity.
The Court agreed with the trial judge’s findings that the activity of operating the catching gate was a dangerous one and that the likelihood of injury in the operation of the gate was a risk that had a real chance of materialising.[8]  The Club’s defence under s 5L was upheld and the appeal dismissed. 
Our observations 
This decision confirms the broad reach of s5K. While the third limb captures activities, which are ostensibly not “recreational” in nature, that “artificiality” is of little concern as that classification only has bearing on “dangerous” recreational activities for the purposes of 5L (as well as risk warnings for 5N and contractual waivers for 5N).

Post by Senior Associate, Robert Mitas, and Paralegal, Jonathon Gilmour.
[1] [50].
[2] [51].
[3] [7].
[4] (2017) 96 NSWLR 503.
[5] At [54].
[6] [62].
[7] [63].
[8] [107].

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