- The first limb of ‘recreational activity’ under s 5K of the Civil Liability Act 2002 (NSW) (the CLA) includes ‘all sports’. The CLA does not distinguish between sports undertaken for professional purposes and those undertaken for recreational purposes. Professional horseracing therefore falls within s 5K and the scope of the defence available under s 5L.
- Video footage and photographic evidence have limited probative value. The courts use caution when relying on photographic evidence, even when it is obtained contemporaneously, from multiple angles and from known locations.
Paul Goode (the plaintiff), a professional jockey, sustained serious injuries when his horse fell during a race on 29 June 2009. The plaintiff alleged Tye Angland (the defendant) was liable for intentionally veering his horse across the path of the plaintiff’s horse, causing it to stumble and fall.
An inquiry by Racing NSW determined that the plaintiff’s horse had been advancing uncontrollably (that is, over racing) and had moved itself into an awkward position when it stumbled and fell.
The defendant argued that he was simply following the path of the horse in front and did not intentionally veer into the path of the plaintiff’s horse. The trial judge accepted the defendant’s evidence, finding that he did not move when it was unsafe or unreasonable to do so as provided by industry convention. Furthermore, the plaintiff’s injury was found to be caused by over racing rather than any movement by the defendant. The trial judge also found that professional horse racing was a ‘recreational activity’ within s 5K of the CLA and there was a complete defence under s 5L of the CLA. The trial judge therefore found in favour of the defendant.
The plaintiff appealed the decision.
There were two central issues on appeal:
- The finding of facts by the Court – particularly those based on video footage and photograph evidence; and
- The definition of ‘recreational activity’ and application of s 5L of the CLA.
The New South Wales Court of Appeal dismissed the appeal with costs on the following basis:
- The trial judge was correct in his use of video footage and photographic evidence for fact finding. The photographic evidence was considered in light of other evidence including expert witness opinion rather than used as a single source to deduce facts.
- There was little disparity in what the experts deduced from the video footage. The competing opinions of fact were based on what each witness recalled happened on the day in question.
- No issues were raised in the primary proceedings as to the credibility of expert opinion or the admission of evidence, and therefore it was not open to the plaintiff to raise these issues on appeal.
- The plaintiff did not establish that the defendant’s movements were intentional and not just foreseeable movement in the ordinary course of horse racing.
- The plaintiff did not argue, at first instance, that the defendant unintentionally rode in a negligent manner and was not able to raise this on appeal.
- ‘Recreational activity’ as defined in s 5K of CLA includes three limbs, the first being characterisation as ‘any’ sport. Professional horse racing satisfies this first limb as no distinction is made between sport undertaken for professional and recreational purposes.
- The plaintiff falling from his horse and sustaining injury was an obvious and serious risk of harm that materialised while undertaking a ‘recreational activity’ (s 5K of the CLA). The defendant therefore had a complete defence against liability (s 5L of the CLA).
In an era of CCTV, this case highlights the limited value courts place on video footage and photographic evidence in order to deduce facts, even when the evidence is obtained contemporaneously and from a known location. This case demonstrates that it is dangerous to rely too heavily on video footage or photographs unless they are supplemented by other evidence. It is therefore important to contact potential witnesses early and obtain statements where relevant, or otherwise secure their attendance at court to provide evidence in person.
This matter has broadened the interpretation of recreational activities to include professional sports. Whether a person is undertaking a sport as a professional, semi‑professional or amateur, if the activity involves a significant risk of harm (CLA s 5K), the activity falls within the scope of s 5L. Consequently, the application of the complete defence available under s 5L of the CLA has also widened. It is important to remember that the defence does not only apply to personal injury matters, but also includes harm resulting in death, property damage and economic loss (s 5 of the CLA).
 Beazley P and Meagher and Leeming JJA.