Greyhound racer leaves Court of Appeal with tail between his legs

28 September 2020

The NSW Court of Appeal finds that injuries to a gate keeper at a greyhound racing club triggered the “dangerous recreational activity” defence under the Civil Liability Act 2002 (NSW).

In Issue

  • Whether the injuries suffered by a gate keeper during a professional greyhound race were the materialisation of an obvious risk of a dangerous recreational activity.

The background

From 2009, Mr Carter was involved in hobby greyhound racing including at the Hastings River Greyhound Racing Club (Club).

On Anzac Day 2015, Mr Carter was present at the Club with three of his dogs, which were entered in separate races. While walking past a committee member of the Club, Mr Carter was asked whether he would operate the catching pen gate for two races. His task required him to let a lure pass through a gap between the inside rail and the gate and then close the gate to divert the dogs into a catching pen. Mr Carter was not provided with any instructions on how to operate the catching pen, although he had done so before for trial runs.

When the first of his two allocated races commenced, Mr Carter operated the pen and proceeded to watch the race. After a dog fell but continued to run, Mr Carter was momentarily distracted and the lure struck him in the leg at around 70 km/h.

Mr Carter claimed that his injuries were caused by the Club’s negligence in failing to delegate the job of operating the track gate to an employee or other properly trained individual.

The decision at trial

The NSW Supreme Court found that Mr Carter’s injuries were the result of the materialisation of an obvious risk (serious injury from being struck by a lure if standing in its path) of a dangerous recreational activity (operating the catching pen gate). This afforded the Club a complete defence to the claim under section 5L of the Civil Liability Act 2002 (NSW) (CLA).

While there were other issues in the trial, these did not loom large in the appeal. You can view our casenote on the first instance decision here.

The issues on appeal

Mr Carter appealed the first instance decision. The appeal was unanimously rejected by a three-judge decision of the NSW Court of Appeal.

The main issue in the appeal was whether Mr Carter was engaged in a “recreational activity” at the time of the incident within the meaning of paragraph (c) in section 5K of the CLA.

The definition of “recreational activity” in section 5K 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.

Mr Carter argued that the first few words of paragraph (c) should be read to mean “any pursuit or activity of a recreational character”. It was argued that paragraph (c) would otherwise be impermissibly broad and lead to absurd results. The example was given of a firefighter injured while fighting a fire within a national park ordinarily used for relaxation and leisure. Mr Carter argued that if paragraph (c) was read literally, the firefighter would be engaging in a recreational activity at the time of the firefighting.

The Decision on appeal

The Court of Appeal disagreed with Mr Carter’s interpretation of paragraph (c) and dismissed the appeal.

The Court of Appeal was guided by previous authorities which confirm that the definition of “recreational activity” within paragraph (c) extends beyond activities that have a recreational purpose (see for example Goode v Angland [2017] NSWCA 311, where professional horseracing was found to be a recreational activity).

The Court of Appeal also stated that if it accepted Mr Carter’s interpretation it would effectively render paragraph (c) obsolete. This is because the definition of “recreational activity” in paragraph (b) of section 5K already concerns activities engaged in for enjoyment, relaxation or leisure. Paragraph (c), on the other hand, is directed at a broader class of activities: “any pursuit or activity” engaged in at a place where people ordinary engage in recreational activities. In line with previous authorities, it held that Mr Carter’s interpretation failed to give meaning to the word “any” within paragraph (c) (see for example Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152).

In relation to Mr Carter’s submission regarding the firefighter example, the Court of Appeal accepted that in such circumstances, an injured firefighter might well be precluded from maintaining an action in negligence - while this would potentially be an “unintended consequence” of sections 5K and 5L of the CLA, the Court said that this outcome nevertheless arose from the ordinary meaning of the words in both provisions.

As a result, Mr Carter’s appeal was dismissed.

Implications for you

The Court of Appeal’s decision is in line with recent authorities giving a broader interpretation of “recreational activity”. The upshot is that a defendant may be able to rely on the “recreational activity” defence even in circumstances where the activity engaged in by the plaintiff was not engaged in for enjoyment, relaxation or leisure.

The case also demonstrates that the court will be unwilling to depart from the ordinary meaning of CLA provisions even where there may be policy reasons to do so.

Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185

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