In the decision of Lynch v Cavallo [2018] NSW DC, the court on an interlocutory motion was required to revisit the question of whether a professional jockey can sue another professional jockey injured in a professionally organised horse race. In Goode v Angland [2017] NSWCA 311 the Court of Appeal held that a professional horse race was a recreational activity and that falling from the horse was an obvious risk of that activity within the meaning of the Civil Liability Act 2002 (NSW) (CLA) so that such activities came within the protection of the CLA.

The plaintiff and defendant were professional jockeys riding in the 2015 Mudgee Cup.  The plaintiff fell from his horse and was injured.  The plaintiff sued the defendant alleging negligence and a breach of the Australian Rules of Racing.  The defendant sought to have the proceedings struck out on an interlocutory stage on the basis that the claim arose out of an obvious risk of a dangerous recreational activity and by virtue of section 5L of the CLA the defendant was not negligent.

The defendant had pleaded guilty to one charge and received a suspension in regard to a breach of the Rules.

The judge hearing this motion sought to distinguish the decision in Goode from the facts of the present claim.  He did not seek to distinguish the finding of the Court of Appeal in Goode that professional horse racing was a recreational activity within the ambit of section 5K of the CLA.

The judge considered that not every case of an injury arising from a professional horse race was an obvious risk.  He suggested that the breach by a participant of Rules that govern a professional activity are not necessarily obvious to participants.  He said every participant in such a dangerous recreational activity engages in it on the basis that participants will comply with the rules which govern the sport.

The defendant sought to argue that injury from participating in a professional horse race, including injury as a result of another jockey not complying with the rules of that sport, was obvious within the meaning of the CLA.  The defendant relied on part of the plaintiff’s pleaded claim that alleged that the risk of harm that existed was a risk of fellow riders being injured as a result of the defendant’s careless, reckless or incompetent riding.

Based on the present state of the evidence and noting this was an interlocutory application where the complete evidence had not been heard, the judge found that the risk of injury resulting from a fellow rider breaching the Rules of Racing was not necessarily a risk inherent or incidental to riding in the Mudgee Cup or necessarily an obvious risk.  So the claim was not necessarily barred by the operation of an inherent risk or obvious risk defence.

There was accordingly no reason to dismiss the plaintiff’s claim at this interlocutory stage.

The determination of the availability of an inherent and obvious risk defence under the CLA, and negligence generally will have to await the hearing of evidence from the plaintiff and the defendant at trial, but most particularly from the plaintiff in regard to whether the risk of injury was obvious to him.

The defendant was unsuccessful principally because of the difficult hurdle to be met to satisfy the court that dismissal was appropriate at an interlocutory stage.   However, in our view the plaintiff may have difficulty withstanding the application of the CLA at trial.  That a fellow jockey might breach the Rules that govern his participation in a race and also ride carelessly which may cause injury to a fellow jockey must be something obvious to most professional jockeys in the plaintiff’s position, although ultimately the answer to that question for the pursue of the CLA depends on all the facts and circumstances and the relevant knowledge and experience of the plaintiff.