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Rounding the turn to the right into the home straight on the 1600 m journey in race 7, Darcey – a 4yr-old mare – was boxed in on the rails with two horses in front and two on her outside.
In an attempt to challenge the leaders, jockey Glenn Lynch led Darcey out from the rails to buffet the mare on his left under the control of rider Greg Ryan.
Against the pressure exerted by Lynch’s mount, Ryan kept his mare on her line for 30 m or so and nosed ahead of Darcey as the pair came out of the turn.
Lynch then aggressively pushed further to his left increasing the pressure against Ryan’s mount to such an extent that its hindquarters abruptly shifted out and its legs became entangled with those of the gelding following behind.
That beast – Blue Onyx – crashed onto the Tamworth track spilling its jockey Hari Singh to the grass. Singh sustained serious injuries.
That was in August 2012.
In the lawsuit that came before the NSW Supreme Court in May 2019 it was revealed that Lynch had been charged by the Tamworth stewards and found guilty of breaching Australian Rules of Racing rule 137 (a) which prohibits “careless, improper, incompetent or foul riding”.
Lynch’s insurer nevertheless claimed liability immunity for the injury consequences of his negligent riding claiming that the fall was an “obvious risk” of a “dangerous recreational activity”.
Justice Des Fagan approved the parties’ agreement to the extent of Hari Singh’s damages at $5 million but concluded that Lynch’s careless riding was not negligent because it was no more than “a lapse of judgement under intense pressure in dynamic circumstances where the defendant and all of the jockeys around him were under a professional obligation to race to win”.
He also ruled that even if Lynch’s riding had been negligent, professional horse racing was a “dangerous recreational activity” and the fall that occurred was “the materialisation of an obvious risk” of the sport such that – by operation of NSW Civil Liability Act s 5L – the insurer was relieved of any obligation to part with its money.
His Honour followed the authority of recent NSW higher court decisions that held – for Civil Liability purposes – sporting activity was “recreational” even when conducted by professionals. He was not persuaded by a Tasmanian ruling on another jockey injury case that CLA liability immunity does not to extend to professional activities.
Leave was given to Mr Singh to re-argue on his appeal against the decided NSW authority as to whether the activities of professional sportspeople were when properly considered, “recreational”.
The court for his appeal was thus constituted by five judges rather than the customary three.
All five agreed that horse racing met the definition in CLA s 5K of a “sport” whether or not it was carried on for financial reward. They also agreed that it involved “a significant risk of physical harm” thus qualifying it under the statutory definition of “dangerous recreational activity”.
The appeal justices also concurred that Lynch’s conduct was reckless, not merely careless and – overturning the lower court decision – that Lynch had been negligent.
Where they differed was in the identification of the particular risk that Lynch’s insurer claimed to have been “obvious” to a reasonable person in Mr Singh’s position.
Justice Fagan had identified the that risk as that “of the appellant’s mount falling, bringing him to the ground and causing him injury.”
The majority – Justices Basten, Leeming and Payne – agreed, concluding that although Lynch’s riding was “unexpected, unreasonable and also unnecessary” the reckless and deliberate character of wrongdoer’s conduct did not alter its “obviousness”.
As straight forward as that proposition may be, their Honours’ further explanations perhaps “over-intellectualised the process”, a danger that Justice Basten had specifically warned against.
Consider for example the following contradictions: “Obviousness is to be considered prospectively,” but the exercise “involves a combination of foresight and hindsight”; The characterisation of the risk should be at a general level but “must not be so broad as to encompass all possible risks associated with the activity”.
The minority – Justices McCallum and Simpson – on the other hand thought the trial judge’s formulation of the “obvious” risk Singh was taken to have accepted to be “at an undue level of generality” because it failed to “have some regard to the mechanism by which the injury was caused”.
The range of “careless riding” included – they explained – common occurrences among the range of careless conduct a participant may reasonably anticipate therefore “obvious”. Other conduct within that broad description might be rare and therefore not “obvious”.
Considering the evidence – including that of jockey Greg Ryan – that Lynch’s aggressive unexpected breakout attempt involving as it did a “deliberate and persistent riding” to push another horse off its line, was rare and carried a significant risk of causing another horse to stumble.
In their view the risk of harm that eventuated was a risk that another rider would deliberately ride his horse so recklessly as to endanger other riders.
“The distinction is between careless riding (as outlawed by the Australian Rules of Racing) and deliberate act of causing a horse to collide with another and put it off its line of running (which is also outlawed). While the former is an obvious risk of the sport of horseracing, the latter in our opinion is not”.
They also observed that the Civil Liability Act should not be interpreted in a way that “effectively gives license to individuals to engage in conduct that involves risk of harm beyond that which may be reasonably expected to be anticipated as part of the pursuit activity in which the injured person voluntarily engages”.
The majority judges’ upholding of the insurer’s immunity contention means jockey Singh has been denied his claim.
It should be noted that the narrower definition of recreational activity in Queensland’s CLA – which is confined to activities engaged in for enjoyment, relaxation or leisure and contains no reference to “sport” – has lead to different conclusions in Queensland.
In Tasmania, where like NSW the analog includes within the relevant definition, a “sport” – whether or not it is “organised” – liability immunity has been held not to extend to professional activities that might otherwise be associated with recreation.
So while the dichotomy of appellate views makes this case a potential candidate for appeal to the High Court, the significant differences between each State’s “dangerous recreational activity” enactments (and the absence of any such provision in Victoria) may be cause for that court to decline to entertain any appeal.
Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 Basten JA, Leeming JA, Payne JA, McCallum JA and Simpson AJA, 23 July 2020 Read case
Categories: Recreational accident