Since the introduction of the Civil Liability Act in NSW and in 2002, there have been defences to claims for personal injury on grounds that the injured person was participating in a dangerous recreational activity; that there was an obvious risk of injury from participation; and that the risk materialised. Much law has been written concerning the particular sections of the Act that are relevant to the defences.
A fairly recent, tragic, case illustrates how the sections of the Act operate in practice. The short facts were that a country race jockey fell during a race in 2012 and suffered catastrophic injury. Prior to trial, there was an agreement that if the claim succeeded, damages would be $5,000,000.00; however liability was in dispute. The defendant was another jockey in the race who, it was alleged, had ridden recklessly or carelessly, causing the plaintiff’s horse to fall.
Much of the evidence related to the conduct of the race and, in particular, whether the defendant’s manner of racing was safe, careless, or reckless. Ultimately, the court held it was negligent – but the plaintiff was still unsuccessful because, the court said, “…there is ample evidence in the present case of the significant risk of physical harm that is associated with horse racing”. An expert witness (another jockey) called by the plaintiff said that he himself had been involved in 20 or 30 falls during his career and that a professional jockey “must expect to be injured in a fall at some stage of his career“. The court, on the basis of that evidence, that there was an obvious risk of injury during a competitive horse race.
The court acknowledged that whether or not a risk was “obvious” depended in large part on how it was characterised. That is, if a risk was described in very broad terms, there was a much greater chance of it being obvious, whereas if it were described in narrow terms there was less risk of it being obvious. (Although this illustration was not used in the case, if one compares the (general) risk that there might be a storm today, with a (narrow) risk that a person walking in the street might be struck by lightning from a storm that occurred today, it can readily be seen that the general risk is more likely to be ‘obvious’).
The court reviewed the case law on how to approach the exercise of characterising risk. It was satisfied the risk in this case, was of the plaintiff’s horse falling, bringing him to the ground and causing an injury. Having made that finding, the court was satisfied a risk was obvious and that the defendant could not be held liable.
The case does not establish any new law, but is a reminder that the fact a person suffers injury – even where someone else might be said to be “negligent” – does not automatically result in an entitlement to damages. All of the circumstances of the incident need to be taken into account, including the nature of any activity being undertaken when the injury occurred and whether there were any obvious risks associated with it: Singh v Lynch [2019] NSW SC 1403.
