Let’s Cover It - Obvious Risk Defence to Negligence Claim

This article is from the September 2020 Horse Deals magazine.

On 23 July 2020, the Full Court of the Supreme Court of New South Wales in the case of Singh bhnf Ambu Kanwar v. Lynch [2020 NSWCA 152] dismissed an appeal by a professional jockey against another for compensation arising from a fall from his horse. Several issues decided by the Court are relevant to liability for harm in horse sport, recreation and leisure.

Mr Singh fell during a race meet at the Tamworth Racecourse. The fall was caused by Mr Lynch riding his horse, in breach of the rules of racing. Mr Lynch was found guilty of careless riding by the stewards. Mr Singh later sued Mr Lynch for negligence but failed at first instance and on appeal.

In New South Wales, the Civil Liability Act says ‘A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff’. This provision is known as the liability defeating rule. It applies to all horse-riding activities. What is an ‘obvious risk’ is statutorily defined: ‘An obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person’.

The Appeal Court dismissed Mr Singh’s appeal because of the liability defeating rule. The Court’s reasons for reaching this conclusion are informative in the equestrian setting for 2 reasons.

Firstly, the Supreme Court dismissed Mr Singh’s argument that ‘recreational activity’ did not encompass professional sport but was limited to activities voluntary undertaken by persons for enjoyment, relaxation or leisure. The Court held that the statutory definition of ‘recreational activity’ in the Civil Liability Act of New South Wales encompassed professional sport pursued as an occupation and a means to a livelihood.

In equestrian sport, professionals, semi-professionals and amateurs often compete against one another, whether individually or as team members. Irrespective of their status, the liability defeating rule is potentially going to apply to any of them who is injured. All riders, but especially professional and semi-professionals ones, must therefore consider personal accident insurance to protect themselves against the deprivations that follow incapacitation and loss of income.

Second, and the more significant aspect of the Court of Appeal’s decision, was its application of the liability defeating rule to the circumstances of Mr Singh’s incident and legal claim. A key issue in the application of the rule in any liability case is the characterisation to be given to the risk of harm. That is because the injury must have resulted from the materialisation of an ‘obvious risk’, being a risk which would have been obvious to a reasonable person in the position of the plaintiff (in this case, Mr Singh).

Let’s remember that numerous persons are potentially exonerated from liability for negligence under the liability defeating rule: the owner of the place where the incident occurs, a manager of that place or the event, an employer of the negligent rider, the negligent rider him or herself, and an association or other body responsible for holding the event or activity and responsible for setting and enforcing rules for riders. As a consequence, persons within the protected class will seek to expand the scope of the rule to the facts of an incident while the person harmed will seek to minimise its reach in those circumstances: In doing so, each side contends for either a wide (protected person) or narrow (injured person) characterisation of the risk.

The trial Judge in Mr Singh’s case had characterised the risk as ‘the risk of his mount falling, bringing him to the ground and causing him injury.’ Mr Singh had contended for the characterisation as ‘A risk that another rider would deliberately ride his horse so as to cause reckless or deliberate contact with an adjoining horse, in circumstances where the first horse was ‘boxed’ or ‘pocketed’ in a manner that was plainly contrary to the rules of racing.’ The Court of Appeal therefore had to consider the proper factual characterisation of the risk to decide Mr Singh’s claim given the engagement of the liability defeating rule in the case.

The Australian Rules of Racing included a rule that ‘Any rider may be penalised if, in the opinion of the Stewards, he is guilty of careless, improper, incompetent or foul riding’. Mr Singh contended that while careless riding might be an obvious risk, riding that was more than careless (like reckless or deliberate unsafe riding) was not.

The Appeals Court decided to characterise the risk as a fall caused by contact with another horse, being contact which in turn resulted from negligent riding of another jockey. The precise degree of negligence was not material, in its view, to the proper characterisation of what was obvious. In other words, it was unnecessary in the Court’s view to characterise the risk as deliberate or reckless riding. According to the Court, the preferred approach was to recognise that the identification of an obvious risk was a matter to be undertaken prospectively without the benefit of hindsight. It therefore required a level of generality as to the kind of risk involved. A prospective assessment of the obviousness of a risk should not reflect fine distinctions differentiating aspects of unsafe riding.

What is clear from this appeal decision and other Supreme Court case authorities in recent years is the reluctance of Courts to overly define, with the benefit of hindsight, the risk which materialised so as to show it was not one which the injured rider could reasonably have anticipated.

As a result, defendants to negligence claims should be confident that Courts will uphold the liability defeating rule in the equestrian setting, irrespective of the unique circumstances of a particular incident. Horse riding is a dangerous recreational activity and riders engage in it at their own risk. Riders should not, of course, exacerbate the normal and usual level of risk that pertains to equestrian pursuits by riding horses unsuited to their skill level and experience (like novice riders on big moving horses), riding in unsafe conditions (such as on a young horse with too much going on around it), doing stupid things (like texting or taking a selfie while riding) or ignoring the need for continual self-improvement to become better riders to manage and control their mounts.

10 August 2020
© 2020 Michael Mackinnon,
Solicitor & Independent Counsel
Horseforce.com.au

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