Carter v Hastings River Greyhound Racing Club

1. [1]

   GLEESON JA: I agree with the orders proposed by Simpson AJA and with her Honour’s reasons, noting however that the difference of opinion in Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 concerning the identification of an obvious risk under s 5L of the Civil Liability Act 2002 (NSW) is not significant for the disposition of this appeal. As Simpson AJA observes at [112], there is no challenge in the present case to the finding that the risk that resulted in the appellant’s injury was obvious.

2. [2]

   WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Simpson AJA. I agree generally with her Honour’s reasons. The observations which follow assume a familiarity with those reasons and the legislative provisions in question.

3. [3]

   In Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, Leeming JA discussed the authorities and principles relevant to whether the use of a particular descriptive defined term with its own usual connotations or denotations can itself influence the construction of the definition of the term (at [80]-[132]). Simpson AJA notes (at [59] and [60]) that all members of the Court in Singh agreed with Leeming JA’s analysis of this issue, but that Singh neither decided that it was permissible to allow the meaning of “recreational” in the term to be defined to influence the interpretation of the definition, nor that it was impermissible to do so.

4. [4]

   This appeal is not a vehicle for deciding that question. I agree with Simpson AJA’s reasons that para (c) of the definition of “recreational activity” in s 5K of the Civil Liability Act does expand the ordinary meaning of “recreational activity”. I agree that para (c) of the definition of “recreational activity” is not to be read down so that it applies only a recreational pursuit or a recreational activity engaged in at a place described in para (c). As was said in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 and Singh bhnf Ambu Kanwar v Lynch, such a construction gives no regard to the word “any” in the phrase “any pursuit or activity”. The construction propounded by the appellant would not in any way enlarge the ordinary meaning of “recreational activity” and would render para (c) otiose.

5. [5]

   The appellant supported his construction of the definition of “recreational activity” in s 5K(c) by reference to possible other cases where a literal interpretation might be said to be unintended. In particular, the appellant submitted that on a literal interpretation of the definition of “recreational activity”, a volunteer bush fire fighter fighting a fire in a national park or similar bushland (whether a national park or not) used for enjoyment, relaxation or leisure, would be engaging in a “pursuit or activity” (fire fighting) in a place that would be included within the definition of “recreational activity” in para (c) of the definition in s 5K, and that the fire fighter’s engagement in that pursuit or activity would be a dangerous recreational activity because it involved a significant risk of physical harm.

6. [6]

   A member of a fire brigade employed by the Government of New South Wales in the service of the Crown (Fire and Rescue Act 1989 (NSW) s 69(2)) who suffered injury in fighting the fire as a result of negligence of his employer could sue for damages at common law unconstrained by the requirements of the Civil Liability Act: (s 3B(1)(f)); although constrained by Div 3 of Pt 5 of the Workers Compensation Act 1987 (NSW). But, it was submitted for the appellant, a volunteer fire fighter injured in fighting a fire in such a place, who would otherwise have a good claim against the Crown for negligence in the conduct of the fire fighting activities, would find his or her claim barred by a literal interpretation of s 5L, because the harm suffered was the materialisation of an obvious risk of a dangerous recreational activity. This was because, so the argument went, on a literal construction of para (c) of s 5K, the fire fighter would be engaged in an activity at a place where people ordinarily engaged in a pursuit or activity for enjoyment, relaxation or leisure (e.g. in the national park where the fire was raging) and the activity in which the fire fighter was engaged at that place involved a significant risk of physical harm.

7. [7]

   I am prepared to assume, without deciding, that in such circumstances a volunteer fire fighter injured through the negligence of the relevant authority of the Crown responsible for fighting the fire, would be precluded from maintaining an action for common law damages by reason of s 5L and the definition of “recreational activity” in s 5K(c). If that be the case, it may be an unintended consequence of the width of the definition of “recreational activities” in s 5K. But, as Simpson AJA observes with reference to Esso Australia Pty Ltd v Australian Workers Union (2017) 263 CLR 551; [2017] HCA 54, it is not the Court’s function to construe a provision as if it had a meaning Parliament did not intend it to have in order to overcome unintended consequences, particularly, to avoid hypothetical potential consequences.

8. [8]

   I agree with the orders proposed by Simpson AJA.

9. [9]

   SIMPSON AJA: On 25 April 2015 the appellant, Jason Carter, suffered serious injury to his left leg in an incident that occurred at a greyhound racing track in Wauchope, an inland town in the mid north coast area of NSW. The greyhound racing track was controlled and managed by the respondent (the Hastings River Greyhound Racing Club, to which I will refer as “the Club”). The appellant brought proceedings against the Club claiming that his injuries were caused by its negligence. The claim was governed by the provisions of the Civil Liability Act 2002 (NSW) (“the CLA”). After a four day hearing Harrison AsJ, the primary judge, upheld a defence under s 5L of the CLA and gave judgment for the Club and ordered the appellant to pay its costs: Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780. Because s 5L affords a complete defence to a claim in negligence, it was not (strictly) necessary that the primary judge determine whether the Club was negligent. The parties had reached partial agreement with respect to the quantum of damages to which the appellant would, if successful, have been entitled. Against the possibility that her decision was wrong her Honour stated her views with respect to the issue of negligence, assessed the outstanding damages issues, and also the partial defence of contributory negligence.

10. [10]

    The appellant appeals against the orders. Neither party has challenged the damages assessment.

Background Facts

1. [11]

   The background facts are largely uncontroversial.

2. [12]

   From about 2009 the appellant was involved in greyhound racing as a hobby. As at 2015 he owned and trained 8 to 10 dogs which he entered in local race meetings and in trials, including those conducted by the Club. Some description of how a greyhound race meeting is conducted was given in affidavit form by the president of the Club, Mr Rex Nairn (as well as by the appellant and other witnesses). Mr Nairn was not called to give oral evidence and no challenge was made to the description he gave. There are, however, some gaps in the description, which have to be filled by inference.

3. [13]

   The following is largely drawn from Mr Nairn’s affidavits.

4. [14]

   Four persons, each of whom performs a different function, are required to operate greyhound race meetings. They are (i) a starter; (ii) a lure driver; (iii) a “catching pen gate operator”; and (iv) a return gate operator.

5. [15]

   In the case of race meetings conducted by the Club those functions are all performed by volunteers who receive no remuneration (other than, in the case of the starter and lure driver, reimbursement for some expenses).

6. [16]

   The task of the lure driver is to control a mechanical device (“lure”) which is constructed of a fabric covered rubber sponge and a tail, affixed to a metal bar that is, in turn, screwed into a metal carriage that propels the lure around the inside rail of the track on which the dogs race. It is powered by a petrol motor. The lure runs along rollers and through pulleys positioned at intervals less than a metre from the inside rail. It is controlled by the lure driver (referred to by Mr Nairn also as “the hare driver”). It travels at approximately 73 kilometres per hour. The dogs chase the lure.

7. [17]

   A “catching pen gate” is located near the start of the back straight. It is about 7.5 metres wide, 1.2 metres high and is attached by hinges and a metal cable parallel to the outer fence of the racing track, leaving the racing track unobstructed. At the start of and throughout the race, the catching pen gate is left open, forming part of the outer fence.

8. [18]

   The purpose of the gate is to catch the greyhounds after a race is complete and “quarantine” them in a catching pen. This prevents them continuing to chase the lure. After the lure and the dogs have passed the finish line, and the lure has passed the catching pen gate, the catching pen gate is closed across the track to prevent the dogs continuing to run, thus causing them to enter the catching pen.

9. [19]

   When the gate is in the “closed” position it runs at right angles to the outer fence and blocks the racing track. It is manually manoeuvred from the open to the closed position. That manoeuvre is the task of the catching pen gate operator.

10. [20]

    On 25 April 2015 (Anzac Day) a race meeting was taking place at the Wauchope track. The appellant was present with three of his dogs which were entered in separate races. Prior to the start of the fourth race the catching pen gate was operated by Mr Stephen Baker, a member of the Club committee. Mr Baker had to leave for personal reasons, and encountered the appellant. He asked the appellant to operate the catching pen gate for races 5 and 8, which the appellant agreed to do. He had never previously operated the catching pen gate for a race, although he had done so for trials. He was given no instruction in its operation. He said that he agreed to operate the gate “as a gesture of goodwill” and to “help out” the Club.

11. [21]

    Race 5 commenced. The appellant moved the gate across the race track to the partially closed position, leaving space for the lure to travel through. He watched the race. One dog fell, but (apparently) recovered and continued to run, although well behind the others. The appellant maintained observation on that dog, while aware that the other dogs were running around the track, and that the fallen dog was losing ground. The main body of dogs passed the finishing line, still in pursuit of the lure.

12. [22]

    While the appellant’s attention was distracted by the dog that had fallen he was struck in the left leg by the lure. As the lure was on a track it is plain that the appellant was standing in its path. He was knocked off his feet, his lower leg and foot pinned under the bottom of the gate. An ambulance attended, the appellant was taken to hospital and underwent surgery. Given the issues in the appeal, it is unnecessary to go further into the detail of his injury.

The appellant’s claim

1. [23]

   The appellant pleaded that, as occupiers of the premises, the Club owed him a duty to take reasonable care to avoid a risk of injury to him as an entrant or as a volunteer, and that that duty covered the “static condition” and the activities being carried out on the premises. So much was not in issue.

2. [24]

   The appellant’s case, as expressed in an Amended Statement of Claim in the language of the CLA, was that the injury that he suffered was reasonably foreseeable and could have been prevented by the exercise of reasonable care. He specifically pleaded three precautions (one of which was the provision to him of adequate training and instruction) that he claimed could have been taken by the Club in order to avoid the injury that he suffered. These are more fully set out at [118] below.

The defence

1. [25]

   By way of defence the Club denied the allegations of negligence. It pleaded the common law defence of volenti non fit injuria and invoked a number of specific provisions of the CLA. It pleaded, pursuant to s 5B thereof, that it had taken the precautions that a reasonable person in its position would have taken. It pleaded that the appellant’s claim did not meet the causation requirements stated in s 5D in that any negligence on its part was not a necessary condition of the harm suffered by the appellant, and that it was not appropriate for the scope of its liability to extend to that harm.

2. [26]

   The Club further pleaded:

3. [27]

   Although it was not pleaded, on the hearing the Club also invoked Pt 9 of the CLA, which deals with the liability (as potential defendants) of volunteers. The Club submitted that, as a community organisation, it was entitled to the protection afforded to volunteers by ss 60 and 61.

4. [28]

   The onus of establishing any of the defences pleaded rested on the Club: Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 at [24] and [123]; Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 at [41]

The primary judgment

1. [29]

   The primary judge noted (at [145]) that no submissions had been directed to the common law defence of volenti non fit injuria and that it was not necessary to address that pleading.

2. [30]

   Appropriately, (in accordance with authority) her Honour dealt first with the defences that could have afforded a complete answer to the appellant’s claim: Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [54]-[57]; Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [185]; Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 at [39].

3. [31]

   The primary judge rejected the defence of intoxication (at [133]) and the defence under Pt 9 of the CLA (at [144]).

4. [32]

   For the purposes of ss 5B, 5F and 5L of the CLA the primary judge identified the relevant risk of harm as:

5. [33]

   She found that, in operating the catching pen gate, the appellant was engaged in a dangerous recreational activity and thus that his injury resulted from the materialisation of an obvious risk of that activity. Accordingly, she upheld the defence under s 5L of the CLA (at [117]).

6. [34]

   That finding was sufficient to dispose of the proceedings. Nevertheless, her Honour considered, on a contingent basis, the remaining issues.

7. [35]

   She found, for the purposes of s 5B of the CLA (uncontroversially) that the Club owed the appellant a duty of care and that the risk of injury was foreseeable (at [168]) and not insignificant (at [170]) but (more controversially) that the appellant had failed to demonstrate any breach of duty.

8. [36]

   Although, for the purposes of s 5D(1)(a) of the CLA, she found that the appellant had proved “factual causation”, the primary judge also found that he had failed to prove that it was appropriate for the scope of the Club’s liability to extend to the harm caused (s 5D(1)(b)) (at [203]). She accordingly found that the appellant had failed to establish that the Club should be held liable for his injury.

9. [37]

   For the purposes of s 5R of the CLA (contributory negligence) the primary judge determined that the appellant bore 50% of the responsibility for his injury (at [212]).

10. [38]

    Finally, her Honour assessed those heads of damage that had not been agreed.

The Notice of Appeal

1. [39]

   By his Notice of Appeal the appellant challenges:

   1. (1)

      the finding that, in operating the catching pen gate, he engaged in a dangerous recreational activity (grounds 1-4);

   2. (2)

      the finding that he had failed to establish that the Club had breached the duty of care it owed to him (grounds 5-8);

   3. (3)

      the finding, pursuant to s 5D(1)(b) of the CLA that, notwithstanding that factual causation had been proved, the Club was not to be held responsible for the appellant’s injuries (grounds 9-11); and

   4. (4)

      the apportionment of contributory negligence at 50% (grounds 12, 13).

2. [40]

   The issues for determination are, therefore, those that arise under s 5B, s 5D, s 5K, s 5L and s 5R of the CLA.

3. [41]

   There being no Notice of Contention, it is unnecessary further to consider the issues of intoxication and the defence applicable to volunteers. Nor is there any issue about the quantification of damages.

4. [42]

   Section 5L provides a complete defence where the injury the subject of the claim results from “the materialisation of an obvious risk of a dangerous recreational activity”. It is convenient to set out the complete terms of s 5L:

5. [43]

   A number of the terms used in s 5L called for explanation:

6. [44]

   The primary judge, correctly, observed (at [98]) that, in order to make out a defence under s 5L, a defendant must establish:

   1. (1)

      that the plaintiff engaged in a “recreational activity” [within at least one of the three limbs of the s 5K definition];

   2. (2)

      that that activity carried an “obvious risk” of harm, [as defined in s 5F];

   3. (3)

      that the harm suffered by the plaintiff resulted from the materialisation of that risk; and

   4. (4)

      that the “recreational activity” was dangerous, in the sense that it involved a significant risk of physical harm, within the s 5K definition.

7. [45]

   The starting point in the consideration of a defence raised under s 5L is to identify the “activity” which is said to be a “recreational activity” within one or more of the three limbs of s 5K. Although it might appear, in this case, that the relevant activity was greyhound racing, the parties were united in identifying the relevant activity as:

8. [46]

   The question that thus arose was whether that activity was:

9. [47]

   The primary judge held that the operation of the gate was not a sport, but that it was a “pursuit or activity in which the appellant engaged for enjoyment, relaxation or leisure” within par (b) (at [91]) and, in any event, took place at a location within par (c) (at [96]). In [91] she explained her conclusion with respect to par (b):

10. [48]

    The appellant challenges that conclusion. He argued that, in the passage extracted, the primary judge erred:

11. [49]

    In my opinion there is substance in the appellant’s contention in this respect. There was nothing in the appellant’s evidence that supported the proposition that he engaged in the activity of operating the catching pen gate (as distinct from attending and participating in the greyhound race meeting) for “enjoyment, relaxation, or leisure”. Rather, he was prevailed upon to undertake a task with which he was not familiar and which, so far as the evidence goes, afforded him no satisfaction but was a distraction from the purpose for which he had attended the meeting.

12. [50]

    The goal of the activity undertaken is relevant to determining whether the activity is or is not a recreational activity (at least within par (b) of the definition): Belna Pty Ltd v Irwin [2009] NSWCA 46; Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [103]; Goode at [203]. The stated “goal” of the appellant in acceding to Mr Baker’s request was to assist in the conduct of races 5 and 8. It was not something from which, on the evidence, the appellant derived, or sought to derive, “enjoyment or relaxation” or which he undertook for the purpose of “leisure”. It may well have been otherwise had the activity in question been found, in more general terms, to have been greyhound racing, or attendance at a greyhound race meeting. But the combined attitude of the parties narrowed the identification of the relevant activity to the operation of the catching pen gate. That the appellant may have derived some satisfaction from performing a service for the Club does not equate to pursuing that activity with the goal of deriving enjoyment or relaxation or for leisure.

13. [51]

    I therefore accept that the finding that the activity of operating the catching pen gate was a recreational activity within par (b) of s 5K was erroneous.

14. [52]

    It is then necessary to consider the subsequent finding that, in any event, the activity of operating the catching pen gate came within par (c), as a “pursuit or activity engaged in at a place where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.” This was the main focus of the appeal. On a literal interpretation of par (c), there could be little doubt that that activity comes within par (c), and so the primary judge found, at [91]. But the appellant argued that the literal interpretation gives an “artificial meaning” to the word “recreational”, or to the concept of “recreational activity”.

15. [53]

    Issues with respect to the construction of the definition of “recreational activity” in s 5K have presented previously. In Goode the issues specifically concerned par (a) of the definition. The question there for determination was whether the term “sport”, in the first limb of the definition, encompassed professional, as distinct from non-professional, horseracing. Put simply, the argument (as I understand it to have been) was that professional horseracing is not recreational in nature and therefore is not a recreational activity, notwithstanding that it is a “sport”; the exclusion of liability provided by s 5L is directed to activities of a recreational nature, not professional sporting activities.

16. [54]

    This Court rejected the argument. Leeming JA explained the structure of the s 5K definition, which he described as “triply disjunctive”. The first limb of the definition, par (a), his Honour pointed out, is directed to the characterisation of the activity in question; the second limb, par (b), is directed to the purpose of the activity; and the third limb, par (c), is focussed on the location in which the activity takes place: see [190]-[194]. In par (a) no distinction is drawn between sports participated in for recreational purposes, and professional sports. That was as far as it was necessary to go. The court was not called upon to consider the reach of par (c). His Honour did, however, say:

17. [55]

    The point of the appellant’s argument, both before the primary judge and in this Court, with respect to par (c), was that, if applied literally, s 5L has a potentially unacceptably wide operation with unintended consequences; a literal interpretation would give the defined term (“recreational activity”) an “artificial meaning”. I take it that what was intended to be conveyed by that was that the scope of activities encompassed is artificially and unacceptably wide. I will return in due course to the reasons advanced in support of that proposition.

18. [56]

    The solution the appellant proposed to the problem that he perceived in the application of par (c) was to interpret that limb of the definition as “coloured” by the word “recreational”. The essence of the submission, as I understood it, was that the words “any pursuit or activity” in par (c) should be construed as “any pursuit or activity of a recreational character” – that is, by reference to, or inclusive of, the very term the subject of the definition. Underlying the submission was the proposition that any activity or pursuit, to come within par (c), must itself be of a recreational character (something that is not expressly included in the text). Since operating the catching pen gate was not recreational in character, so the argument went, it was not captured by par (c) of the definition.

19. [57]

    The primary judge rejected that submission. She said:

20. [58]

    Since the argument in this case took place, a five judge bench of the Court was convened to determine a challenge to the correctness of the decision in Goode. A similar argument was there advanced. Judgment was delivered on 23 July 2020: Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152.

21. [59]

    In Singh, Leeming JA (with whom all members of the Court on this issue agreed) discussed at some length authorities concerning whether a defined term may be used in the construction of the definition of that term. Ultimately, it was unnecessary to reach a conclusion because, even if the word “recreational” could inform the meaning of the first limb of the definition (“any sport”) it could not undercut “the generality of ‘any sport’” in the first limb of the definition (at [131]-[132]).

22. [60]

    Singh does not therefore decide that it is impermissible to allow the meaning of “recreational” in ordinary language to influence the interpretation of an expansive definition. But neither does it decide that it is permissible to do so.

23. [61]

    It was only the first limb of s 5K that was in question in Singh. The construction of the second and third limbs did not arise. But there is no reason to think that the principles of construction applied in that case should not also apply to par (c).

24. [62]

    I said that I would return to the argument advanced on behalf of the appellant in support of the proposition that a literal interpretation of par (c) results in artificiality. The asserted unacceptable reach of a literal interpretation of par (c) of s 5K was illustrated by reference to hypothetical situations that might be caught by such an interpretation. A person walking through a park on the way home, or for exercise, a spectator at a sporting event, or a vendor of food and drink, it was hypothesised, would be engaged in pursuits or activities “at a place … where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure” and would therefore come within par (c).

25. [63]

    That is correct, but it is of little, if any, consequence. That is because, as indicated above, the only purpose of the definition is to explain the term “recreational activity” as used in Pt 1A Div 5, and s 5L denies liability only where the recreational activity is a dangerous one and the risk of the activity that materialises and causes injury is obvious, as defined in s 5F. (Section 5M, also in Div 5, denies liability where the risk of a recreational activity is subject to a “risk warning”).

26. [64]

    Ordinarily, it could not be said that walking or exercising in a park, spectating at a sports event or providing catering services are activities that “involve significant risk of physical harm” and are therefore “dangerous” within the meaning given to that term in s 5K; for s 5L to operate to deny liability it would be necessary that an “obvious risk” of the activity that materialises and causes injury be identified. That these activities may come within the third limb of the definition of “recreational activity” is therefore inconsequential.

27. [65]

    The appellant placed heavy emphasis on the fact that in performing his role as catching pen gate operator he was a volunteer. Reference was made to the importance of “voluntarism” in organised amateur sports and recreational activities in Australia. The appellant submitted that there were “powerful contextual reasons” for the proposition that par (c) was not intended to apply to volunteers.

28. [66]

    In general those “contextual reasons” identified asserted potential anomalies in the application of s 5L of the CLA if a literal interpretation were given to the words “any pursuit or activity” as they appear in par (c).

29. [67]

    Two of the asserted anomalies may be mentioned. First, s 3B(1)(f) and (g) of the CLA exclude from its operation (inter alia) civil liability for compensation or damages arising under the Workers Compensation Act 1987 (NSW) (“the WCA”). Thus, it was argued, it could be seen that the words “any pursuit or activity” do not, and could not have been intended to, extend to “employment activity”.

30. [68]

    That argument should be rejected. That the operation of the CLA is excluded in respect of certain proceedings does not affect the correct construction of the language used in its provisions.

31. [69]

    It may be noted in passing (as mention was made of volunteer firefighters and lifesavers) that liability under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) is also, by s 3B(1)(g), excluded from the operation of the Act. This has the effect of protecting volunteers, such as members of the Rural Fire Service, emergency service workers and rescue association workers (including surf lifesavers) from the restrictive provisions of the CLA.

32. [70]

    It was then argued that a literal interpretation of par (c) creates an artificial distinction between volunteers and employees.

33. [71]

    That argument too, should be rejected. Non fault liability of employers for compensation payable to injured employees has long been governed by workers compensation legislation expressly directed to the employment relationship. In more recent times the liability of employers for common law damages has also been incorporated into that legislation, although in modified form. An injured employee is entitled to pursue any rights he or she may have in accordance with that specific legislation. There is no artificial division created by the exclusion from the CLA of claims by employees against employers for work related injuries.

34. [72]

    A second asserted anomaly also arises out of the exclusion of the WCA. Section 151Z(1) entitles an employer who is liable under the WCA to pay compensation (for a work injury, as defined in s 4 thereof) to indemnity from any other person who is “liable to pay ….damages” (s 151Z(1)(d)).

35. [73]

    The policy of s 151Z(1) is:

36. [74]

    Unless subject to another exclusion under s 3B(1), the “other person” would have the benefit of the more restrictive provisions of the CLA and may not be “liable to pay … damages”. On the appellant’s argument, the policy of s 151Z(1) would be defeated, because the employer would be unable to recover indemnity unless the other person was liable to pay damages.

37. [75]

    These arguments are unpersuasive. The legislature has determined, plainly as a policy matter, that work injuries within the purview of WCA are to continue to be dealt with under legislation specifically directed to injuries of that nature, as are the relative liabilities of those liable to pay compensation or damages. What are asserted to be anomalies may, or may not, when tested, prove to be so. The interaction of the WCA and the CLA is best left to consideration in a case where the issues actually arise. For the moment I am unpersuaded that any potential anomaly casts light on the construction to be given to the language of par (c) of s 5K. In Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54 the majority (Kiefel CJ, Keane, Nettle and Edelman JJ) said even if there were such an anomaly (or anomalies), it is not the task of the court in construing legislation to repair any damage caused by the drafting of the legislation:

38. [76]

    In submissions in reply to those of the Club, the appellant asserted:

39. [77]

    Since the definition is an inclusive one, the ordinary meaning of “recreational activity” is not excluded, and the first part of the appellant’s proposition is correct. The second part of the proposition assumes that it is permissible to construe a definition (or parts thereof) by reference to its subject matter. For the reasons given above, that assumption has not been shown to be valid.

40. [78]

    The submission went on:

41. [79]

    All of this is true, but irrelevant. The submission continued:

42. [80]

    It was not explained why par (c) is irrelevant. It is, in truth, highly relevant. The proposition depends upon acceptance of the earlier proposition, that the phrase “any pursuit or activity” as used in s 5K(c) means more than is contained within it – that it means “any pursuit or activity of a recreational character”. It contradicts the observation of Leeming JA in Goode, extracted above (at [54]), that the definition extends the meaning of “recreational activity” beyond activities that have a recreational purpose. Far from expanding the term “recreational activity”, such a construction would limit it to its ordinary meaning.

43. [81]

    The appellant steered clear of confronting the true import of his contention that the word “recreational” should “colour” the construction to be given to the definition: the true import of the contention is that additional words, not enacted by the legislature, should be read into par (c). No authority was advanced in support of the legitimacy of such an approach.

44. [82]

    Two things dictate rejection of the proposed approach. First, the same collocation of words appears in par (b) of s 5K. It would, at the least, be incongruous to construe the term “any pursuit or activity” in par (c) as including the words “of a recreational character”, and the same term in par (b) as not including those words. Yet to include the words in par (b) would result in tautology. As a general rule of statutory construction a word or phrase used in a statute is to be given the same meaning throughout. The general rule is subject to rebuttal, depending on the circumstances of any individual case: see the discussion in P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [5.170]-[5.180].

45. [83]

    There is no indication anywhere in Div 5 of Pt 1A of the CLA, or, for that matter, any other part of the CLA, that the drafters intended that a different meaning be given to the term used in the two successive paragraphs.

46. [84]

    Second, the starting point of the construction of a statute is the text of the provision in question: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]. That is not however, the end point of the exercise. In The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106, Kiefel CJ and Keane J, at [31]-[37], explained the correct approach to statutory construction. While that exercise commences with a consideration of the words of the provision itself, it requires, at the outset, consideration of the context in which the provision was enacted. That context includes the mischief which it may be seen that the statute is intended to remedy. There is nothing in the context of the CLA that supports the construction proposed by the appellant. Indeed, as will be seen below, the opposite is the case.

47. [85]

    In similar vein the appellant relied on s 6 of the Interpretation Act 1987 (NSW) and (by implication) s 33. Section 6 provides:

48. [86]

    The appellant’s contention in this respect stopped short of maintaining, as s 6 would appear to permit, that the “context or subject matter” indicates or requires the abandonment of the definition; rather, his contention appears to have been intended to urge that the “context or subject matter” of the CLA (or Pt 1A, Div 5, or possibly s 5K or s 5L – the submission did not particularise) indicates or requires that the term “any pursuit or activity” be read as if modified to accommodate a restricted application of that term, so as to exclude such pursuits or activities as are not recreational in character.

49. [87]

    There is no basis on which that proposition should be accepted. In Goode (at [191]-[193]) Leeming JA placed some emphasis on the use of the word “any” at the commencement of each paragraph. The inclusion of “any” underlines the breadth of the word or term that it quantifies.

50. [88]

    Section 33 of the Interpretation Act requires that, in the interpretation of a statutory provision, a construction that would promote “the purpose or object underlying” the provision is to be preferred to one that does not.

51. [89]

    Both that and the consideration of “context” as required by the reasoning in A2 call for some examination of the circumstances of the enactment of the CLA.

52. [90]

    The CLA was introduced into the New South Wales Parliament in two stages amid what was said to be an “insurance crisis” arising out of escalating awards of damages for claims for personal injury resulting from alleged negligence. The first stage, which encompassed only Parts 1 and 2, dealt with awards of damages and imposed significant limitations on the assessment of damages, compared with what had been permitted under common law principles.

53. [91]

    The second stage (which introduced Pts 1A and Pts 3-10) addressed, in detail, questions of liability. Some indication of the intent and object of the legislation can be found in the title of the Act when passed: Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW).

54. [92]

    Introducing the first stage, the Premier made it clear that the intention of the package of “reforms” was to address what was perceived as:

55. [93]

    That intention was confirmed in the Second Reading Speech when the Civil Liability (Personal Responsibility) Bill (2002) NSW was introduced on 23 October 2002. The Premier said:

56. [94]

    An Explanatory note purported to explain Pt 1A, Div 5 in the following way:

57. [95]

    The Explanatory note does not accurately record what was enacted as s 5L, at least in its literal interpretation. It is correct so far as pars (a) and (b) go. But when par (c) is applied, s 5L excludes liability for “any pursuit or activity”, whether recreational or not, provided that it is engaged in at a relevant (recreational) location. That omission does not bear upon the proper construction of par (c).

58. [96]

    This brief history casts substantial light on the purposes and objects underlying the CLA, which was unmistakably designed to limit sharply the circumstances in which injured persons could claim damages from those who otherwise would or might (at common law) have borne responsibility for the injury.

59. [97]

    Neither the application of s 33 nor a consideration of the “context” in which the CLA was enacted assists the appellant’s argument.

60. [98]

    In Singh (at [211]) McCallum JA and I urged caution in the application of s 5L, insofar as it is necessary to determine, as a fact, whether a risk that materialises and causes injury is an obvious risk of the activity in question. I do not resile from that view, although it is fair to note that it was not adopted by the three other members of the Court. It is not, I think, inconsistent with the recognition that the purpose and object of the CLA was to limit, and limit drastically, the circumstances in which damages may be recovered for negligently inflicted personal injury, and the quantum thereof.

61. [99]

    No principled reason has been identified for departure from the literal words of s 5K(c), or for reading those words as they are modified in the way proposed by the appellant. In that respect it may be reiterated that the denial of liability of a defendant afforded by s 5L requires the defendant to establish:

62. [100]

    The effect of acceptance of the appellant’s construction would write out of existence each of pars (b) and (c) of s 5K and render them redundant – it would mean that “recreational activity” means “recreational activity in the ordinary sense of that term”, unextended by the inclusive and expansive definition. If the term “any pursuit or activity” as used in par (c) is to be given that expanded meaning, it ought to be given the same meaning in par (b), which would render that paragraph tautological. And such a construction would contradict the decision in Goode.

63. [101]

    That disposes of grounds (1)-(3) of the appeal, each of which I would reject.

64. [102]

    By ground 4 of the appeal the appellant challenges the finding that the activity of operating the catching pen gate was a dangerous recreational activity, the focus of this ground being on the finding of dangerousness. The issues that arise in this respect are entwined with those that arise in the consideration of whether the risk the materialisation of which resulted in the appellant’s injury was an obvious one, and also of whether the injury was foreseeable, as required by s 5B(1)(a).

65. [103]

    The primary judge found (at [117]) that that activity did involve significant risk of physical harm and was therefore dangerous. In doing so, she pointed to pleadings of the appellant that asserted that injury to him in undertaking that activity was foreseeable.

66. [104]

    Where a s 5L defence is raised, both parties have to tread delicately. On the one hand, in order to succeed in establishing negligence, a plaintiff must show that risk of injury was foreseeable (CLA s 5B(1)(a)). On the other hand, to defeat a defence under s 5L, the plaintiff must resist the defendant’s contention that the activity was dangerous and that the risk was obvious. The converse applies to the defendant, who must resist the plaintiff’s claim that the risk was foreseeable but nevertheless (if that fails) establish that the activity was dangerous and that the risk was obvious. Although, for the purposes of s 5B of the CLA, the appellant maintained (as he had to) that the activity involved a foreseeable risk of injury, he also maintained that the activity was not dangerous within the s 5K definition.

67. [105]

    The test of dangerousness is objective: Fallas v Mourlas at [13] and [136]. But whether a particular activity is dangerous may depend on the circumstances. In Fallas v Mourlas Ipp JA observed:

68. [106]

    The appellant submitted:

69. [107]

    In support of his claim that the Club was in breach of its duty to him the appellant asserted (Amended Statement of Claim, par 15(a) that the Club ought to have taken precautions against the risk of injury, inter alia, because “the probability of the occurrence of the risk was relatively high”. When later considering the issue of breach of duty the primary judge found that the risk of injury by operating the catching pen gate was foreseeable (CLA s 5B(1)(a)) (at [168]) and not insignificant (CLA s 5B(1)(b)) (at [170]). In relation to the s 5L defence she went further and found:

70. [108]

    I am not persuaded that the circumstances cited (set out in [106] above) support the appellant’s proposition that the activity was not dangerous. On the contrary, if the absence of any training or instruction (which the appellant pleaded as a precaution that the Club ought to have taken) have any bearing on the question, it was to support the respondent’s proposition that the activity was dangerous. So also was the fact that the appellant had not previously operated the gate at a race as distinct from trials. If the appellant’s distraction by the fallen dog cast any light on whether the activity was dangerous, it, again, supported the respondent’s position.

71. [109]

    The submission made on behalf of the appellant was that the risk of injury was not one that was “inherent in, or an incident of” the activity of operating the catching pen gate. That language is drawn from the decision of this Court in Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355 at [43]-[46]. The proposition does reflect what Macfarlan JA (with whom Campbell AJA and I agreed) said in Alameddine. The question there in issue was not whether the activity was dangerous but whether the risk that materialised was obvious. There are, however, significant overlaps in the two questions. Macfarlan JA went on to give several instances of cases in which it had been held that the injury in question did not result from the materialisation of an obvious risk.

72. [110]

    I see no reason to doubt the factual findings of the primary judge, that the operation of the catching pen gate involved a significant risk of physical harm. The lure travelled on a rail at more than 70 kph. Although there was a “lure driver” and it may be assumed that its travel could have been arrested if danger threatened, it may also be assumed that such an exercise would have taken some time. The lure presented an obvious danger to anybody standing in its way. I agree with the primary judge that the activity of operating the catching pen gate was a dangerous one. I would therefore reject ground 4.

73. [111]

    The consequence of these findings is that the primary judge was correct to conclude that the defence under s 5L of the CLA was made out. Since s 5L is a “liability-defeating” provision, that is sufficient to dispose of this appeal. It is therefore possible to deal briefly with the remaining grounds.

74. [112]

    No ground of appeal expressly challenged the finding that the risk that resulted in the appellant’s injury was obvious, but the following is included for completeness.

75. [113]

    Identification of the risk asserted to be an obvious risk is an essential preliminary task in the determination of a defence under s 5L. The degree of particularity or generality with which the risk is defined may dictate the outcome of the defence.

76. [114]

    In Singh a jockey in a horse race deliberately rode his mount in such a way as to cause a collision with another horse, resulting in serious injury to Mr Singh, who was riding a third horse. The parties propounded vastly different formulations of the risk, from the very general (on behalf of the defendant) to the particular (on behalf of the plaintiff). This Court divided on whether the risk was obvious. Leeming JA (with whom, in this respect, Basten JA and Payne JA agreed) observed that the obviousness of a risk is a question of fact (at [137]). Their Honours agreed that, in that case, the risk that a jockey would deliberately ride so as to cause a collision was obvious. McCallum JA and I took the opposite view. There was no difference of opinion with respect to the principles which apply to the determination of what is an obvious risk. The difference was as to the application of the principles.

77. [115]

    Section 5B of the CLA provides:

78. [116]

    Section 5C provides:

79. [117]

    As also mentioned above, it was uncontroversial that the Club owed the appellant a duty of care; the primary judge accepted that the risk of injury to him was foreseeable and not insignificant. She held, however, that the appellant had not established any breach of that duty.

80. [118]

    As mentioned above, the appellant pleaded three precautions that he alleged the Club ought to have taken. These were:

81. [119]

    In rejecting the first and second of these precautions the primary judge said:

82. [120]

    In rejecting the third asserted precaution (modification of the gate) the primary judge said:

83. [121]

    With respect to these paragraphs the appellant submitted:

84. [122]

    The appellant did not attempt to identify what would have been involved in “training and instructing” him not to stand between the gate and the inside railing so that he was not in the way of the lure. To state the proposition is to state the obvious. Other than reinforcing that obvious proposition by a direction to avoid standing near the rail on which the lure ran, it is difficult to contemplate what more the Club might have done, by way of training or instruction and the appellant’s submissions did not throw any light on that contention.

85. [123]

    Installation of a flap would operate as now exists at other race tracks following the appellant’s injury. The operator stands on the outside of the track in an elevated position, not needing to be on the track at all except to move the gate to a closed position at the beginning of the race. This obviates the risk that the operator will stand in the path of the lure as the function can be performed at a distance from the lure’s path. Because the risk of injury was in any event, low, the primary judge was not satisfied that a reasonable person in the position of the Club would have taken the precautions.

86. [124]

    I see no error in the reasoning or the conclusions of the primary judge in respect of any of the proposed precautions. I would therefore reject these grounds of appeal.

87. [125]

    Section 5D of the CLA relevantly provides:

88. [126]

    It is to be observed that the issues relevant to causation depend upon a finding of negligence. Since the primary judge did not find negligence on the part of the Club the discussion of causation is entirely hypothetical, on the assumption that some breach of duty (in this case, failing to take one or more of the postulated precautions) had been established.

89. [127]

    The primary judge found that factual causation had been established, but held that:

90. [128]

    I would accept that, had the appellant established that any of the three postulated precautions ought to have been taken, there was no reason why the scope of the Club’s liability should not extend to the harm caused. In light of the primary judge’s findings with respect to those precautions, and my concurrence with those findings, that argument is an arid one. I would therefore reject grounds 9-11, based on the absence of any finding that the Club was negligent. There was no negligence that caused the appellant’s injury

91. [129]

    The primary judge assessed the appellant’s share of liability for his injury at 50%. By grounds 12 and 13 the appellant challenges that determination. Recognising that the assessment of contributory negligence is essentially a matter for the first instance judge, the appellant nevertheless submitted that, having regard to four “uncontroversial facts”, the assessment was erroneous. The four asserted “uncontroversial facts” were:

92. [130]

    The facts listed might be properly characterised as “uncontroversial”, but they do not necessarily throw light on the assessment of the appellant’s proper share of responsibility for his injury. That he was a volunteer did not affect his responsibility to take care for his own safety: Hrybynyuk v Mazur [2004] NSWCA 374 at [24]; (2004) Aust Torts Reports 81-774. I have already dealt with the issue of training or instruction. It is true that the appellant was inexperienced in operating the gate during a competitive race meeting but he had some experience in doing so in trials, and, in any event, it requires little training or instruction to remain away from a rail on which a mechanical lure is moving at high speed. That the appellant’s attention was “divided and distracted” by the fallen dog rather emphasises his own level of responsibility.

93. [131]

    Even if I were to conclude that the Club was liable to some extent for the appellant’s injury, I would not interfere with the assessment of contributory negligence.

94. [132]

    The consequence of these conclusions is that, in my opinion, the appeal must be dismissed.

95. [133]

    The orders I propose are: