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GOODE V ANGLAND
The plaintiff, Mr Goode, suffered
catastrophic spinal injuries, riding a
horse named ‘Shot of the Rails’ at the
Queanbeyan Racecourse in June 2009.
The plaintiff alleged that his injuries
were due to the negligence of another
jockey, Mr Angland, riding ‘Port Gallery’
in the same race, which interfered with
Mr Goode’s horse, causing it to fall.
The plaintiff alleged that shortly before
his horse stumbled and fell he was
riding behind the defendant’s horse
and another horse (‘Dexter’s Angel’) and
when a gap opened up between those
horses, he took the opportunity to
improve his horse’s position by moving
into the gap. The plaintiff further alleged
that while his horse was advancing, Mr
Angland’s horse moved into his path
and that Mr Angland did not look over
his shoulder before shifting his horse
into the plaintiff’s path.
The plaintiff also alleged that he yelled
out to Mr Angland to warn him of
his presence. However, the plaintiff
made no mention of doing this at the
stewards’ inquiry on 12 March 2010.
The plaintiff also conceded that he had
informed the stewards’ inquiry that his
horse was ‘overracing’ which meant
that it was unsettled and showing a
tendency to race forward in a manner
that needed to be controlled by the
jockey. He also conceded that his horse
had stumbled a few seconds before
the incident due to overracing but
denied having any difficulty controlling
the horse although he admitted it had
been necessary for him to stand in the
stirrups to gain control of the horse.
Stewards’ inquiry:
The stewards’ inquiry concluded that
Shot of the Rails began to overrace
and a gap presented itself momentarily
between Port Gallery and Dexter’s
Angel, however there was insufficient
racing room and Shot of the Rails
fell as a consequence. The stewards
concluded that the fall could not be
attributed to rider error and that a
contributing factor was the horse’s
inclination to overracing, resulting in
its advancing into an awkward position
between Port Gallery and Dexter’s
Angel. The stewards were not satisfied
that the fall could be attributed to any
negligence on the part of Mr Angland.
Consideration of liability issues
The Court had the benefit of considering
footage of the race and the incident
from multiple angles as well as expert
evidence regarding the conduct of the
race.
The Court was not satisfied the plaintiff
had called out to the defendant at all,
noting the plaintiff had not raised this
suggestion at the stewards’ inquiry
when he might have been expected to
do so.
Importantly, the court found that the
plaintiff’s horse was never between
the defendant’s horse and Dexter’s
Angel. The Court was also satisfied
that, at no stage of the race was the
plaintiff in ‘total control’ of his horse.
The Court concluded that the plaintiff’s
fall was caused by his horse running
uncontrolled into the rear of the
defendant’s horse where the horses’
legs came into contact.
Contributory negligence
Although the plaintiffs mount was
overracing, this was not caused by
anything within the plaintiff’s control
or by anything that should have been
within his control. Accordingly, the
Court concluded that the fall was
neither caused nor contributed to by
anything that the plaintiff either did or
had failed to do.
In considering liability issues, the Court
noted that the rules of a sport ‘are
neither definitive of the existence nor
of the extent of the duty; nor is the
breach or non observance necessarily
constitute a breach of any duty found
to exist
1
. The Court also noted the
English Court of Appeal decision in
Caldwell v Maguire
2
in which it was
noted that something more is required
for liability in negligence than ‘errors
of judgement, oversights or lapses of
which any participant might be guilty in
the context of a fast moving contest’.
Civil Liability Act 2002 (NSW)- ‘obvious
risk of a dangerous recreational
activity
The Court also considered whether the
statutory defence provided by s5L of
the Civil Liability Act 2002 (NSW) applied
to the claim.
Importantly, and in contrast to the
Tasmanian Supreme Court decision in
Dodge v Snell
3
, the Court found that the
statutory defence of ‘obvious risk of a
dangerous recreational activity’ applied
to sport undertaken as a profession
or occupation. The Court noted that
the definition of ‘recreational activity’
referred to ‘any sport (whether or not
the sport is an organised activity)’ and
did not contain any words specifically
excluding professional sport.
Accordingly, the Court concluded the
plaintiff suffered his injuries as a result
of the materialisation of an obvious risk
of a dangerous recreational activity for
the purposes of s5L the Civil Liability Act
2002 (NSW) and the statutory defence
provided by that section applied to
exclude liability.
The New South Wales Supreme Court and District Court recently
considered liability claims by a professional jockey and a
recreational rider in Goode v Angland (2016) NSWSC 1014 and Hobbs
v Fairall & Fairall (2016) NSWCA 116.
The decisions contain important lessons for defendants and insurers
confronting liability claims arising from horse riding incidents
and, in the case of Goode indicate the statutory defence relating
to obvious risks of dangerous recreational activities may apply to
injuries arising from professional sport.
Touchline issue 24 | September 2016 | 37