Professional sports and the dangerous recreational activities defence: what conduct amounts to an obvious risk?

26 July, 2020

The New South Wales Court of Appeal has again been asked to consider whether the dangerous recreational activity defence applies in the context of a professional horse race. A five judge Court has unanimously held that professional horse racing is a recreational activity within the meaning of section 5K of the Civil Liability Act 2002 (NSW), but only a 3-2 majority considered that the appellant’s injuries arose from the materialisation of an obvious risk of professional horse racing.

Author(s): Richard Johnson and Peter Miller
Judgment date: 23 July 2020
Citation: Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152
Jurisdiction: New South Wales Court of Appeal

Principles

Professional sports are recreational activities for the purpose of the statutory definition in section 5K of the Civil Liability Act 2002 (NSW) (CLA).
The characterisation of an obvious risk for the purpose of section 5L of the CLA should not reflect fine distinctions of the activity or pursuit.
Reckless or deliberate wrongdoing can be an obvious risk of a dangerous recreational activity.
The dissenting judgment may provide scope for the appellant to seek special leave to the High Court.

Background

Hari Singh was a professional jockey, who suffered head injuries after an incident on 14 August 2012 while riding in Race 7 of a meeting at Tamworth, when his horse, Blue Onyx, fell. The fall was caused when another jockey, Glenn Lynch, rode his horse, Darcey, so as to push another horse, Decoree, which was ridden by Gregory Ryan and was alongside Darcey, into the path of Blue Onyx.

Lynch was found guilty of “careless, improper, incompetent or foul riding” under the Australian Rules of Racing on the basis that Lynch’s riding of Darcey into Decoree was “abrupt”, and that decision was upheld on appeal.

Singh sued Lynch seeking damages with respect to his injuries. At trial,¹ Singh was unsuccessful. Fagan J held that:

professional horse racing is a “dangerous recreational activity” within the meaning of section 5K of the CLA;
section 5L of the CLA, relating to the materialisation of an obvious risk of a dangerous recreational activity, applied in this case;
the risk that materialised in this case was “the risk of [Blue Onxy] falling, bringing [Singh] to the ground and causing him injury”;²
a more specific risk that Singh contended for³ was still an obvious risk given careless riding is a common occurrence in horseracing; and
in any event, Lynch did not breach his common law duty of care owed to Singh by making the decision he did in the pressure of the race, as his riding was careless and not reckless.

Decision

Singh appealed – his grounds of appeal centred on the following issues:

whether the finding in Goode v Angland⁴ that professional horse racing is a dangerous recreational activity is correct;
whether Singh’s injury was the result of a materialisation of an obvious risk which occurred in the course of a dangerous recreational activity; and
whether Lynch breached the duty of care owed to other participants in the race.

Was Goode v Angland decided correctly?

Given the challenge to Goode v Angland, a five judge Court heard Singh’s appeal.

The Court held unanimously that the construction of the definitions of “recreational activity” and “dangerous recreational activity” in Goode were correct, so that professional sport, including horse racing, is a “recreational activity” for the purposes of section 5K.⁵ It is improper to read down the statutory definition of “recreational activity” by reference to the ordinary meaning of the word “recreational”.⁶

Materialisation of an obvious risk

In relation to this issue, Singh argued that Lynch’s riding of Darcey was not an obvious risk.

The majority (Basten, Leeming and Payne JJA) held that it was, and followed Leeming JA’s recent judgment in Menz v Wagga Wagga Show Society Inc.⁷ In making this finding, they focused on the characterisation of the obvious risk. Critically, Basten JA held:

“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.”

In doing so, Basten JA noted that the characterisation of the obvious risk adopted by the trial judge may have been too broad, but that the alternative characterisation contended for at trial by Singh was apt, and, in any event, still constituted an obvious risk.⁸ As a consequence, riding that is reckless or deliberately in breach of the rules is still an obvious risk of professional horse racing.

In their dissenting judgment, McCallum JA and Simpson AJA also followed the propositions Leeming JA identified in Menz for the purpose of identification of the risk of harm.⁹ However, they held that consideration should be given “to the mechanism by which the relevant injury was caused”, which draws attention to the manner of Lynch’s riding.¹⁰ There are a wide range of reasons why a horse can be caused to stumble in a race, which involve varying degrees of obviousness.

Their Honours felt that the purpose of section 5L of the CLA was not to excuse the conduct of individuals that involves a risk of harm that goes beyond what is reasonably anticipated as part of the relevant activity. Accordingly, and noting that the majority agreed that Lynch’s conduct was reckless and, perhaps, grossly negligent, they held that Lynch’s conduct was not obvious so as to give rise to a defence under section 5L.¹¹

Breach of duty

Finally, the Court was unanimous in holding that the Lynch’s conduct was reckless and, potentially, grossly negligent, and on that basis, he breached the duty he owed to other riders participating in the race.¹² However, the majority held that section 5L of the CLA was engaged to provide a full defence.

As a consequence, Singh’s appeal was dismissed.

Why this case is important

Firstly, the New South Wales Court of Appeal has put to bed the issue of whether professional sport constitutes a “recreational activity” with the definition in section 5K of the CLA. It is likely that Courts in Western Australia will follow this decision, noting the definition of “recreational activity” in Western Australia is identical.

However, the application of the “dangerous recreational activity” to professional sport likely only applies in New South Wales and Western Australia: in Queensland the relevant statutory definition was always limited to activities “engaged in for enjoyment, relaxation or leisure”;¹³ and in October 2019 Tasmania amended its legislative definition of “recreational activity” to be consistent with Queensland.¹⁴ That amendment was made in light of the decision in Goode v Angland, which effectively overturned the earlier Supreme Court of Tasmania decision of Dodge v Snell, and the Tasmanian government’s view that this is consistent with the intent of the Ipp Review of the Law of Negligence.

Accordingly, while dangerous recreational activity defences may provide some comfort for insurers of professional sports in New South Wales and Western Australia, it is unlikely to have much importance in the context of professional sports in the rest of the Commonwealth.

Secondly, the majority has further refined the propositions espoused by Leeming JA in Menz by stating that fine distinctions in conduct should not bear upon an assessment of the obviousness of a risk. This allowed the majority to find that deliberate conduct outside of the rules of racing is an obvious risk of racing. However, the dissent expressed by McCallum JA and Simpson AJA means that the characterisation of an obvious risk will continue to be a significant issue in future cases, and will always turn on the facts of the relevant case.

Finally, and given both the Court’s criticism of Lynch’s conduct, and the dissent expressed by McCallum JA and Simpson AJA as to whether Lynch’s conduct was an obvious risk, there is a strong prospect of Singh applying for special leave to the High Court of Australia. We will wait with interest.

¹ Singh v Lynch [2019] NSWSC 1403.
² [2019] NSWSC 1403 at [72].
³ The “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 ‚Äúboxed‚Äù or ‚Äúpocketed‚Äù, in a manner that was plainly contrary to the rules of racing”): [2019] NSWSC 1403 at [73].
⁴ [2017] NSWCA 311.
⁵ [2020] NSWCA 152 at [29] per Basten JA, [141] per Leeming JA, [142] per Payne JA and [189] per McCallum JA and Simpson AJA.
⁶ [2020] NSWCA 152 at [34] per Basten JA, [98] to [131] per Leeming JA, [142] per Payne JA and [191] to [192] per McCallum JA and Simpson AJA.
⁷ [2020] NSWCA 65.
⁸ [2020] NSWCA 152 at [68].
⁹ At [195].
¹⁰ At [203].
¹¹ At [228].
¹² At [77] per Basten JA, [141] per Leeming JA, [156] per Payne JA and [236] per McCallum JA and Simpson AJA.
¹³ See Civil Liability Act 2003 (Qld) section 18.
¹⁴ See Civil Liability Act 2002 (Tas) section 19 (as amended).

published by

Richard Johnson

Principal

contributors

Peter Miller

Principal

Recent Insights

View all

Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan

29 August, 2023

Government

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes

18 August, 2023