NSW Court of Appeal sets important precedent for defending claims arising from injuries suffered by professional sportspeople
Goode v Angland 
On 7 December 2017 the Court of Appeal of NSW handed down its judgment in Goode v Angland , in which it unanimously dismissed the appeal against the decision of Harrison J (Goode v Angland ). This judgment sets up an important precedent which will be of great use to various professional sports organisations and leagues, as well as their insurers, when defending claims arising from injuries suffered by professional sports players.
The plaintiff (Mr Goode) fell during a professional horserace at the Queanbeyan Race Course in 2009 suffering catastrophic injuries which left him confined to a wheelchair for the rest of his life. For a detailed summary of Harrison J’s decision, see: http://www.kennedyslaw.com/professionalsportrecreationalactivity/
Issues on the Appeal
The Court of Appeal was asked to determine, amongst other things, whether s 5L of the Civil Liability Act 2002 (NSW) (CLA) provided a complete defence to the defendant (Mr Angland) on the basis that the plaintiff’s fall was a manifestation of an obvious risk of a dangerous recreational activity.
Section 5K of the CLA provides that “recreational activity” 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 Goode submitted that professional horse racing was not a “recreational activity” within the ordinary meaning of that term and sought to confine s 5L to activities, which were of a recreational nature. He submitted that the legislation required a distinction to be drawn between sport undertaken for pleasure and sport undertaken as a profession.
Leeming JA disagreed with this proposition and rejected the reasoning in Dodge v Snell (which excluded professional sport from the definition of “recreational activity” for the purpose of the Civil Liability Act (TAS) that consideration ought to be given to the ordinary meaning of “recreational”. His Honour pointed out that s 5K contains an elaborate definition with elements, which emphasise its generality and that ‘it is difficult to see how part of the defined term could limit that generality’.
In his Honour’s view, much greater assistance is derived from the actual terms used in the definition contained in s 5K, and its structure of three disjunctive limbs, any of which is sufficient to satisfy the defined term, and of which one is directed to characterisation of the activity, another to its purpose, and a third to its location. His Honour’s analysis of the section can be distilled as follows:
- the words “any sport” are apt to preclude a distinction between sports engaged in for recreational purposes and professional sports;
- “any sport” are followed by the words “(whether or not the sport is an organised activity)”. In his Honour’s view, the bracketed words are words of generality, directed to fending off any implication that only a subclass of organised sports fall within the words “any sport”;
- the word “for” and those following it (in the second inclusive limb of the definition) make it clear that this limb looks to the purpose of the activity. If the appellant’s construction were accepted, and sport were confined to recreational activities, then this second component of the definition would amount to its entire content. But a relatively elaborate definition, such as that of “recreational activity”, should not be read so as to confine its operation into only one of its three limbs, leaving the balance inutile;
- the third limb of the definition focusses on the location of the activity, which highlights some of the practical difficulties with the appellant’s construction. In other words, if the location of the activity is sufficient to engage s 5K, then there would be difficulty in distinguishing between professional and non-professional sportspeople at the same location.
In light of the above, and following a thorough analysis of the relevant case law, Leeming JA held that the first limb of the definition of “recreational activity” in section 5K does not draw a distinction between sports participated in for recreational purposes and those participated in for professional purposes. Accordingly, horseracing is a sport which engages the first limb of the definition of “recreational activity” in s 5K, and s 5L was applied.
Meagher JA agreed with Leeming JA, however, added a comment that the Ipp Committee’s Review of the Law of Negligence Final Report, (2002) justified the distinctive treatment of recreational activities on the basis that “people who participate in such activities often do so voluntarily and wholly or predominantly for self-regarding reasons”. However, his Honour opined that if Parliament had wished to maintain a distinction based on voluntariness, it could have retained the language in the Report. Instead, it introduced paragraphs (a) and (c) to section 5K, which attach to the objective characteristics of an activity or place, rather than to the purpose of the relevant participant in undertaking the activity. In his Honour’s view that departure from the Committee’s recommendation broadened the scope of the defined expression.
Beazley P pointed out that authorities ‘might be seen’ to support the proposition that the definition of recreational activity in s 5K only applies to activities that are of a recreational character and that it would also seems incongruous that an activity undertaken as one’s profession, trade or livelihood would be subject to the same legislative exclusion as an activity undertaken for enjoyment, relaxation or leisure, or for that matter, physical fitness or the acquisition of skill. Nevertheless, her Honour was persuaded for the reasons given by Leeming JA that that is the proper construction of, and therefore the effect of, ss 5K and 5L.
Their Honours have also dismissed other grounds of appeal, including the arguments that Harrison J erred in impermissibly using his own interpretation of the photographic and video evidence; and in failing to find that the defendant changed direction or veered when it was unsafe for him to do so in a way that was unreasonable.
Noting the comments made by Beazley P and Meagher JA , the Court of Appeal’s conclusion regarding the legislative intent behind the wording of s 5K of the CLA was not without a good deal of analysis and debate.
However, their Honours unanimously upheld Harrison J’s decision. A conclusion to the contrary would have meant that the legislature intended to abrogate all rights for non-professional participants in sports involving a significant risk of physical harm but to maintain full common law rights for employees who, like the plaintiff, have the protection of workers compensation rights and private disability insurance.
It is yet to be seen whether a special leave application will be filed and, if successful, how the High Court of Australia will resolve the differences in judicial approaches in NSW and Tasmania. If left unresolved, these differences can potentially cause disruption to the sporting (and insurance) industry leading to conflicts of jurisdictions and arguments over the preferred forum for conducting business and litigating matters.