In Issue

  • Whether catastrophic injuries suffered by a jockey during professional horse race were the materialisation of an obvious risk of a dangerous recreational activity

The Background

On 29 June 2009, the plaintiff was competing as a jockey in a professional horserace at the Queanbeyan Racecourse in NSW when the front hooves of the horse he was riding clipped the rear heels of the horse in front of him. The plaintiff sustained catastrophic injuries when he was thrown from the horse as it fell to the ground.

The plaintiff alleged that after a turn at the 1400 metre mark (of a 1640 metre race), the defendant (another jockey) moved his horse to the left thereby opening a gap for the plaintiff to advance or “improve” into. As the plaintiff was “improving” into this gap, the defendant turned his horse back in, without first looking over his shoulder, and this caused the front hooves of the plaintiff’s horse to clip the rear heels of the defendant’s horse.

The plaintiff alleged that the defendant was negligent in that he had breached the “two lengths” rule (i.e. the safe distance for horses in full gallop to cross each other without the probability of the horses clipping heels or being interfered with). The defendant submitted that the so called “rule” was no more than a guideline to which strict adherence was not inevitably required. He also argued that his horse had only moved back in slightly and not by an unreasonable distance and that he was therefore not negligent. The defendant further alleged that in any event he was not liable to the plaintiff as his injuries resulted from the materialisation of an obvious risk of a dangerous recreational activity.

The Decision at Trial

The court held that prior to the fall there was a gap of sufficient distance for the plaintiff’s horse to have continued safely and that the defendant’s horse did not change direction or veer or shift into the plaintiff’s path when it was unsafe to do so. The court accepted expert evidence that the plaintiff’s horse was “over racing” (i.e. racing in an uncontrolled manner) and that the plaintiff was unable to prevent his horse from advancing towards the narrowing gap and the rear of the defendant’s horse. The court also accepted evidence which showed that just prior to the incident the plaintiff’s horse drifted slightly away from the rails, and this was held to have contributed to the horses coming into contact. Accordingly, the court concluded that the defendant had not been negligent.

In any event, the plaintiff’s claim would have been defeated by s 5L CLA(NSW) as the harm suffered by the plaintiff was the result of the materialisation of an obvious risk of a dangerous recreational activity. The court held that the risk that a rider might fall from a horse and the risk that serious injury might be caused by the fall were obvious risks of riding a horse (in any capacity). The plaintiff was also engaged in a “recreational activity” even though he was participating in a professional sport as the definition of recreational activity in a way that includes “any sport” left no room for an argument that relied on the distinction between sport that is undertaken for enjoyment or leisure and sport that is undertaken as a profession or occupation.


The NSW Supreme Court has determined that professional horse racing is a “dangerous recreational activity” pursuant to s 5K CLA(NSW). If a claimant suffers an injury as the result of an obvious risk of horse racing (e.g. falling off a horse), then liability for that injury will be excluded.

Goode v Angland [2016] NSWSC 1014