Goode v Angland [2016] NSWSC 1014

Mr Goode (plaintiff) was riding a horse named “Shot of the Rails” at the Queanbeyan Racecourse on 29 June 2009. Mr Angland (defendant) was riding a horse named “Port Gallery” in the same race. The plaintiff’s horse’s front hooves clipped the rear heels of the defendant’s horse, causing the plaintiff to be thrown from his horse and to sustain catastrophic injuries which rendered him permanently confined to a wheelchair.

The plaintiff commenced Supreme Court proceedings alleging that his injuries, loss and damage were caused by the defendant’s negligence by riding in such a manner as to cause interference to the plaintiff and his mount.

On the basis of facts particular to this case the court found that the defendant had not been negligent; however, and much more significantly, the Court also considered whether in Australia there ever could be liability in negligence for harm suffered from obvious risks of dangerous professional sports.

Section 5L of the Civil Liability Act 2002 (NSW)) provides that there is to be no liability for harm suffered from obvious risks of dangerous recreational activities. This gives rise to 2 main questions:

  1. 1. Are there obvious risks to riders in horse racing?

Neither party challenged that horse racing involves obvious risks. The law provides that an obvious risk can have a low probability of occurring and need not be conspicuous or physically observable.

  1. 2. Is horseracing (or any professional sport) a recreational activity for the sportsperson?

Section 5K of the Civil Liability Act defines “recreational activity” as: “includes:

(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.”

The NSW Supreme Court observed that the definition of recreational activity in the Act includes any sport. No distinction is drawn between a professional sport and any other, and therefore concluded that there can be no liability for harm suffered from obvious risks of dangerous sport, even paid professional sport.

Implications

Sports players suffering an injury due to another’s negligence (eg sending a head injured player back on when he should not be, accidentally breaking the rules resulting in bad injury to another) will not be compensated by the perpetrator (if this decision is followed).

This could lead to contractual obligations not to be “negligent” to sportspeople, enabling an injured sportsperson to sue for breach of contract if some-one negligently caused them injury. However, some-one sued for breach of a contractual duty not to negligently cause harm to a sportsperson is unlikely to have insurance cover for such breach (as assumed contractual liability is excluded from standard cover).

Both professional and amateur sports clubs and events should consider having disability/ injury insurance for all players. If they fail to have appropriate cover in place, the committee, managers, clubs and events may themselves be sued for failing to arrange insurance. Further still, we have recently seen a trend in some insurance policies to exclude cover for an alleged failure to arrange insurance, making the need to arrange disability / injury insurance for players all the more necessary, for the protection of clubs, managers and officers (as well as the sportspeople).