Australia: Chasing tail: the materialisation of an obvious risk in Carter v Hastings River Greyhound Racing Club

In brief - What does Carter v Hastings River Greyhound Racing Club mean for businesses carrying on recreational activities that bear an obvious risk?

The recent decision of Harrison AsJ in the Supreme Court of NSW provides a useful discussion on when a risk will be "obvious" within the meaning of section 5L of the Civil Liability Act (CLA).

Plaintiff suffers significant injury when struck by mechanical lure at greyhound racing track

The claim arose from an individual plaintiff who was engaged in the recreational racing of greyhounds. The plaintiff attended the track of Hastings River Greyhound Racing Club with three of his greyhounds. Throughout the course of the day, he volunteered to operate the catching pen gate during a race.

In a greyhound race, the greyhounds chase a lure made from a rubber sponge covered with material and a "tail" to resemble a rabbit. The rabbit is affixed to a metal bar that screws into a carriage, which propels the lure around the inside rail of the track. The usual procedure when operating the catching pen gate is to keep it open during a race, and then close it once the race has finished and the lure has travelled past.

While operating the gate, the plaintiff became distracted by a dog that fell in the midst of the race. During this distraction the plaintiff stepped into the path of the mechanical lure. The lure, in propelling around the track, struck the plaintiff on his left leg between his knee and ankle.

What is an obvious risk within section 5L of the Civil Liability Act?

In the circumstances, the Court was satisfied that the risk of suffering serious injury from being struck by the lure when standing in its path would have been obvious to a reasonable person in the position of the plaintiff. The plaintiff was a person who had a decade of experience with greyhounds, attended races weekly and had on at least four prior occasions operated the same closing pen gate at the greyhound track.

The plaintiff himself concluded that the probability of the lure colliding with a person was "relatively high". The Court held that a plaintiff's actual knowledge was not relevant to the objective inquiry of whether the risk was obvious. However, the way the plaintiff acquired that knowledge may be relevant when determining whether the risk would have been obvious to a person in the plaintiff's position.

The Court held that, where a defendant has raised the defence under section 5L of the CLA, if the risk of harm is found to be obvious, the onus of proof is reversed and the plaintiff is required to positively establish that he was not aware of it. In this instance, the plaintiff had expressed actual knowledge of the risk, gained through his personal experience with greyhound racing.

As a further point of interest, the plaintiff made repeated reference to the fact that no one inquired into his experience of operating the gate, provided instructions or gave warnings about the risk posed. However, the defendant's failure to warn the plaintiff was no bar to the defence in section 5L of the CLA. The Court noted that section 5H provides that where a risk is obvious, the defendant does not owe a duty of care to a plaintiff to warn of it.

Was operating the gate a recreational activity?

The plaintiff argued that by operating the gate, he was undertaking an "official duty or function" on behalf of the event organiser.

Operating a catching pen gate was held to be an activity. The activity occurred at a place where people ordinarily engage in greyhound racing as a pursuit or activity for enjoyment, relaxation or leisure. The Court found that there was no valid construction of section 5K(c) which would not squarely capture operating the catching pen gate as a recreational activity for the purposes of section 5K of the CLA. The Court therefore held that operating the catching pen was a recreational activity (probably) under subparagraph 5K(b), and definitely under subparagraph 5K(c) of the CLA.

The plaintiff alternatively submitted that he was engaged in a "recreational service" as defined under section 5N of the CLA, and therefore could not simultaneously be engaged in a recreational activity. This argument did not stand, as section 5N extends to contractual duties of care, and not to a situation where the plaintiff volunteered to assist in a recreational activity.

Was the recreational activity "dangerous"?

Determining whether a recreational activity is dangerous involves an assessment of the relationship between both the extent of the potential harm, and the likelihood of it materialising. For example, a "dangerous recreational activity" cannot mean a recreational activity where there is a significant risk of an insignificant injury, like a scratch or bruise.

It was held that:

• the lure operated mechanically on a track. Its path was predictable and certain. In operating the closing pen gate, the plaintiff was required to leave space for the lure to pass so as to avoid a collision. The likelihood that a person in the position of the plaintiff would suffer injury if standing in the path of the lure while operating the closing pen gate was a risk which had a real chance of materialising, and
• the lure comprised a steel bar travelling mechanically at roughly 60 to 73 kilometres per hour. The potential injury suffered by a person standing in its path was clearly significant.

Implications of Carter decision for businesses

Carter is a useful demonstration of how the law of negligence has developed since the introduction of the CLA. The formulation relied upon by Harrison AsJ in concluding that operating the catching gate was a recreational activity within the legislative definition of section 5K has a potentially extensive application for defendants.The case provides a reminder that defendants should utilise and rely upon the provisions in relation to obvious risks and/or dangerous recreational activities where factually relevant.

The decision also reiterates that the tests for obvious risk and determining under section 5K that a recreational activity is "dangerous" are objective ones. While actual knowledge is not determinative, a defendant can rely on the facts as to how the plaintiff acquired that knowledge in submitting that the risk was obvious. The question for the court remains if the risk would be readily apparent to a reasonable person in the plaintiff's position.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.