CLA: dangerous recreational activities & obvious risk – professional sports

Dodge v Snell [2011] TASSC 19

Issue: whether a professional sportsperson fell within the exclusion of dangerous recreational activities.

Wood J

Discussion

257 The consideration of the meaning of the CL Act, s19, will begin with considering the natural and ordinary meaning of the words in their context. The definition of “recreational activity” is inclusive in nature, signified by the word “includes”. Thus the term has a wider application than those activities referred to in (a) and (b). The expansive nature of the definition may be contrasted with the definition of “dangerous recreational activity” in s19 which is confined by the word “means”.

258 For various reasons it seems unlikely that Parliament intended (a) and (b) to operate as a dual requirement. If the paragraphs were to operate in this way it would mean that conduct would only amount to a “recreational activity” if it satisfied both (a) and (b) and was both a sport and a pursuit or activity engaged in for enjoyment, relaxation or leisure. This would have the effect of limiting the definition of recreational activity to sport. It seems obvious that Parliament sought to extend the section beyond sport. The construction of the provision operating in a dual fashion would also be at odds with the word “any” appearing twice in the provision.

259 It is evident from the wording of the provision that Parliament intended sport to be encompassed within the meaning of “recreational activity” as an additional activity to other pursuits, or activities engaged in for enjoyment, relaxation and leisure. The essence of the plaintiff’s submission is that the words “enjoyment, relaxation or leisure” should be seen as qualifying the noun sport. However, the use of separate subparagraphs and the separation of sport from such purposes in the wording of s19 is at least an indication of a contrary intention. As pointed out by Mr Jackson there would have been more concise and effective ways of expressing such a simple proposition.

260 Arguably, too, sport may be engaged in for reasons other than enjoyment, relaxation or leisure. Purposes such as the acquisition of skill, fitness and competition also spring to mind as well as leisure. Alternatively, it might be argued they are all concomitant with the purposes specified in (b): see Belna per Ipp JA at par[14]. I will assume that Mr Jackson’s argument is correct and that an activity may amount to a recreational activity if it satisfies subpars(a) or (b) as alternative requirements. Having made that assumption it remains for me to consider the meaning of the provision.

261 The natural and ordinary meaning of the CL Act, s19, regarding “recreational activity” conveys the notion of sport, any kind of sport, as a recreational activity. However, when the provision is read as a whole it is apparent that the word “recreational” has a role in identifying and conveying the reach of the provision and the activities that fall within the provision. The word “recreational” imparts meaning to the word “sport”.

262 In considering the ordinary meaning of the word “recreational” it is useful to have regard to dictionary definitions. The Shorter Oxford English Dictionary provides, relevant to this context:

2 The action of recreating (oneself or another), or fact of being recreated, by some pleasant occupation, pastime or amusement, late M.E. b An instance of this; a pleasurable exercise or employment … ” 3rd ed, Oxford, University Press 1973.

263 The Macquarie Dictionary provides: “n. 1. refreshment by means of some pastime, agreeable exercise, or the like. 2. a pastime, diversion, exercise or other resource affording relation and enjoyment”, The Macquarie Library, 2nd ed, 1992.

264 The essence of the dictionary definitions is the notion of a pleasant pastime. Recreational activity is the antithesis of paid employment, and perhaps also toil and unremunerated labour. Duties such as housework or charity work would also seem to be excluded from the ordinary meaning of “recreational activity”.

265 Returning to the legislative provision, it seems clear that the word “recreational” contributes to the meaning of the definition and should be given effect. Because the provision operates as an inclusive definition expanding it to include activities beyond the activities mentioned in the two subparagraphs, the word “recreational” must necessarily assist in ascertaining the ambit of the provision.

266 If the provision is read in this way, in accordance with its natural and ordinary meaning, and giving effect to the word “recreational”, the operation of the provision is sound and sensible. The provision assists with an understanding of what amounts to a recreational activity but, is not prescriptive. The word “recreational” is over-arching in its effect, and the purpose of the provision is to assist with the ambit of the phrase and the nature of activities covered by the provision within the parameter of being recreational in nature. The provision conveys a wide reach extending to any sport and, indeed, any other activity providing it is for enjoyment, relaxation or leisure. However, it is a given requirement that the activity must be “recreational” and the provision is designed to assist with the breadth of activities that are captured by the phrase.

267 Noting that “any sport” is in a separate paragraph from “any pursuit or activities engaged in for enjoyment, relaxation or leisure” does not indicate that sport is not recreational in nature. It simply acknowledges that sport, particularly organised or competitive sport, is less obviously an activity undertaken for enjoyment, relaxation or leisure. There could be an argument that sport with purposes of the acquisition of skill and fitness should not be regarded as a recreational activity at all. This provision puts that beyond doubt.

268 It is acknowledged that sometimes a statutory definition creates an artifice giving a word or phrase a meaning that bears little resemblance to the ordinary meaning of the word or phrase. There is no indication in s19 that this was Parliament’s intention. When effect is given to the word “recreational”, the ambit of the provision coincides with the ordinary meaning of “recreational activities”. In considering the provision I can see no indication that it was intended by the legislature that the word “recreational” was to be treated as superfluous or to be ignored.

269 It may be noted that this approach to the interpretation of the CL Act is in keeping with the approach taken by Ipp JA in Falvo v Australian Oztag Sports Association (supra) in considering the definition of “dangerous recreational activity” in s5K of the Civil Liability Act 2002 (NSW). Section 5K defines a “dangerous recreational activity” as “a recreational activity that involves a significant risk of physical harm”. Ipp JA stated at par[28] that the definition of “dangerous recreational activity” in s5K has to be read as a whole and that this “requires due weight to be given to the word ‘dangerous’ and that the expression ‘significant risk of physical harm’ is coloured by the word ‘dangerous’.” Similarly, here the word “recreational” colours the word “sport”.

270 The context of the provision and a consideration of the Act as a whole does not suggest that the exclusion regarding “dangerous recreational activities” was intended to extend to professional sportspeople carrying out their paid occupations. The word “recreational” has prominence in the text, and Div5, excluding liability for breach of duty resulting in harm to a person from a dangerous recreational activity carries the title “dangerous recreational activities”. There is nothing to alert the reader to any intention to extend the application of the provision to activities in employment or carrying out an occupation. The Act as a whole indicates an intention to avoid incursions into civil liability arising from employment (see s3B excluding civil liability against employers relating to personal injury).

271 The recent amendment to the Workers Rehabilitation and Compensation Act (s4DC(1)) was relied upon to show that Parliament regarded horse racing as a sport. I have proceeded on the assumption that horse racing is a sport. In any other regard, the making of the amendment to the WRC Act does not shed light on the meaning of the CL Act, s19. The approach of having regard to amending legislation to provide insight as to the meaning of legislation passed at an earlier time is to be confined. It may only assist if the earlier statute is ambiguous: Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia, Butterworths, 6th ed, 2006 par3.33. The CL Act, s19, is not ambiguous. Furthermore, the later statute does not shed light on the earlier statute. The amendment does not suggest any intention by Parliament regarding the effect of the CL Act and the situation for jockeys under that Act. It is evident that the amendment to the WRC Act was to redress a long-standing loophole arising from the provisions of the WRC Act (s7: deeming jockeys not to be “workers”) which meant that for a long time jockeys had not been covered by the WRC Act.

272 The consequences of the interpretation urged on behalf of the defendant would be far-reaching. It would mean that all professional sportspeople who are injured in carrying out their occupation by the negligence of a fellow sportsman, the negligence of their employer or others owing them a duty of care, would be precluded from seeking damages. Arguably, employees who are engaged in a sport as an occupation such as conducting kayaking or abseiling tours, or teaching others a sport, may also be precluded from pursuing actions for civil damages. There is no indication that Parliament intended such a sweeping change to the common law entitlements of many Australians, or to create such a degree of uncertainty for employees, where it is arguable that they are engaged in hazardous occupations.

273 The background to the legislation is revealing about the intention of Parliament and confirms that the exclusion was only intended to apply to those engaged in sport as a recreational activity or pursuit. As previously noted, many of the provisions of the CL Act are modelled on the recommendations of the Final Report reviewing the law of negligence: pars[8] – [9] above. The purpose of the legislature in enacting ss19 and 20 was to fulfil the objective that a plaintiff who engages in a dangerous recreational activity in circumstances where the risks are obvious is to be regarded as having assumed those risks (Fallas v Mourlas, per Ipp JA, at pars[45] – [46]).

274 The Final Report provides:

“4.11 The Panel is of the view, however, that a principled reason can be given for treating recreational activities and recreational services as a special category for the purposes of personal injury law, regardless of whether the provider of the service is an NPO or a for-profit organisation. The reason is that people who participate in such activities often do so voluntarily and wholly or predominantly for self-regarding reasons.

4.12 This is not always the case, of course. Members of schools and other institutions may be required to engage in sporting and other recreational activities. Also, people who participate in recreational activities in the course of their employment do not do so voluntarily in the relevant sense. The rationale for treating recreational services and activities as a special case does not apply to such persons. Therefore, any rule limiting liability in respect of recreational services should not apply to them.”

275 It is noted that the CL Act, ss19 and 20, do not coincide with the recommendations made by the panel in all respects. However a key recommendation of the panel was to not impinge on those who participate in sporting activities in the course of their employment. The Second Reading Speech regarding the Civil Liability Amendment Bill 2003 (No 46) does not indicate an intention to depart from that key recommendation:

“The third category of reforms are those which emphasise the concept of personal responsibility and the need for each person to accept responsibility for his or her own actions, without always looking for someone else to blame for any misfortune suffered. This is particularly so in relation to recreational activities which a person voluntarily undertakes for their personal enjoyment.

These provisions emphasise a person’s responsibility for their own safety. There will no longer be a liability for an injury arising from an obvious risk of a dangerous recreational activity. A dangerous recreational activity is one which is engaged in for sport, enjoyment, relaxation or leisure which involves a significant degree of risk of physical harm.”

276 While the word “voluntary” does not appear in the legislation, the Speech reveals an intention to limit the activities to activities that are recreational, and presumably the voluntary nature of those activities was seen as implicit in the definition as drafted.

277 In conclusion, s19 is limited to activities that are recreational and does not extend to activities carried out in the course of employment or occupation. The natural meaning of the words, the context, the purpose of the Act, and the consequences of an alternative construction, reveal that the word “recreational” is to be given effect and meaning. The purpose of the reform revealed by extrinsic materials confirms this interpretation.

278 As a professional jockey racing on this occasion in the course of carrying out his occupation, the plaintiff was not engaged in a recreational activity. The exclusion in s20, does not apply.

279 In view of the attention given to the CL Act, s20 in counsel’s submissions, I will go on to consider whether s20 would apply to the breach of duty for harm in this case in the event that the defendant had satisfied the threshold requirement of “recreational activity”.

“Obvious risk”

280 The term “obvious risk” as defined in s15 of the Act has been considered in the discussion above regarding the defence of volenti. The term “obvious risk” appearing in s20 of the Act
has the same meaning as it does in s15 (see s19 of the Act to this effect). In considering the term in the context of the defence of volenti, I decided that the risk to the plaintiff of the defendant’s breach of duty resulting in harm was an “obvious risk”. I considered that regardless of the degree of specificity of the description of the risk to the plaintiff, it amounted to a risk that was “obvious” as defined in the CL Act.

281 For the reasons set out above in relation to the defence of volenti the risk of the defendant’s breach of duty to the plaintiff was an “obvious risk”.

“Materialisation of an obvious risk of a dangerous recreational activity”

282 The submission of counsel for the plaintiff was that the harm that resulted to the plaintiff flowed from the gross negligence of the defendant and, in view of the extreme nature of the defendant’s negligence and the rarity with which that kind of breach of the two lengths rule occurs, it was not an obvious risk of horse racing as a dangerous recreational activity.

283 In considering whether the risk that materialised was an “obvious risk” of the dangerous recreational activity, it is clear from the definition of “obvious risk” in s15 that it is necessary to have regard to the particular circumstances in which the plaintiff suffered harm (Tobias J at par[98] in Fallas). The facts that Mr Read relied upon coincide with findings I have made about clearance, the stage of the race, and not responding to warning calls.

284 Mr Jackson described the negligent conduct that may be the subject of findings in the event that Mr Dodge was successful as, the “defendant riding his horse inwards when it was not sufficiently clear of Mr McCoull’s horse”.

285 However the enquiry must go further and have regard to the particular circumstances, and should incorporate the findings made about those circumstances regarding degree of clearance, warning calls, and so on.

286 Mr Read had drawn to my attention comments by Ipp JA in Fallas at [54]:

“54 In my view, when considering whether there has been a materialisation of an obvious risk, a distinction may have to be drawn between a risk of negligent conduct on the part of another and conduct that is grossly negligent. In some circumstances, it may not be sufficient merely to ask whether the risk of harm caused by a person being negligent was obvious. If the conduct that caused the risk amounted to gross negligence, it would be necessary, in my opinion, to determine whether the risk of harm caused by gross negligence of the kind in question was obvious. Otherwise, if – for the purposes of s 5L – the ‘risk of negligence’ is to be regarded as a descriptive catch-all for the risks of any kind of careless conduct, no matter how extreme, harm caused by grossly negligent conduct could be held to be an obvious risk where in fact such a risk was not obvious at all.”

287 I accept that the degree of carelessness by Mr Snell in this case is extreme and amounts to grossly negligent conduct. However, I have found it more helpful for the enquiry under s20 to focus on the detail of the conduct of the defendant and circumstances as I have found them to be, rather than a consideration of whether the risk of harm qualifies as grossly negligent. Indeed, I am not persuaded that the fact that a defendant’s conduct may amount to “gross negligence” advances the enquiry about whether the risk of harm caused by a jockey was an obvious risk.

288 As previously noted (when considering the argument regarding “obvious risk”), regardless of the degree of particularity with which Mr Snell’s conduct and the circumstances are characterised, the risk that materialised was an “obvious risk”. This conclusion is unaffected by whether or not the label of gross negligence attaches to the conduct. While it is not common to see jockeys shift inwards as Mr Snell did in the circumstances as I have found them to be, and, in fact, the nature of the breach of the two lengths rule may be described as relatively rare, Mr Snell’s conduct was nonetheless a risk that was obvious to a person in the plaintiff’s position.

Conclusion regarding s20

289 As noted above, the statutory immunity pursuant to the CL Act, s20, relied upon by the defendant does not apply as the plaintiff was not involved in a “recreational activity”. The defendant is liable for his breach of duty.

Brisbane Barrister – David Cormack

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