Lynch v Cavallo

By statement of claim filed on 15 August 2017, Glenn Lynch (the plaintiff) claimed damages in negligence against Anthony Cavallo (the defendant) arising from injuries sustained by the plaintiff when he fell from Goldstone, the racehorse he was riding in the Mudgee Cup on 4 December 2015. Subsequently, when the plaintiff’s deteriorating mental capacity, resulting from the injuries he sustained, rendered him incapable of giving instructions, his solicitor, Julie Mahony, arranged for the plaintiff’s partner, Amanda Mullins, to be appointed as his tutor. An amended statement of claim reflecting the appointment was filed on 7 April 2021.

The defendant has offered to resolve the proceedings on the basis of a judgment for the defendant with no order as to costs. Mr Miller, who appeared on behalf of the defendant, informed me that the defendant’s offer will remain open for today only, following which it will be withdrawn. Ms Mullins has, subject to the Court’s approval, accepted the offer. The Court’s approval is required by reason of s 76(3) of the Civil Procedure Act 2005 (NSW).

All references to legislation in these reasons are references to the Civil Liability Act 2002 (NSW) (the Act) unless otherwise indicated.

The plaintiff’s case, as pleaded in the amended statement of claim, alleges as follows:

In its defence, the defendant relied on several defences, which included reliance on s 5L of the Act: “that the injury, loss and damage suffered by the plaintiff (which is not admitted) arose in circumstances where the plaintiff was exposed to an obvious risk of a dangerous recreational activity of which the plaintiff ought to have been aware”.

It was submitted on behalf of the plaintiff that his action against the defendant would be bound to fail by reason of the provisions in Division 5 of Part 1A of the Act, which relevantly provide as follows.

Section 5K provides:

Section 5L of the Act provides:

In support of his application for approval of the settlement, the plaintiff relied on the decision of Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152, in which the plaintiff in the present case was the defendant at the trial and the respondent on appeal. In Singh v Lynch, Mr Singh had been a jockey on a horse which had competed in a race at the Tamworth racecourse on 14 August 2012, in which the plaintiff had also been a jockey of another horse. In that case, the evidence of Mr Ryan (another jockey who took part in the same race) established that it was obvious to any reasonable participant in the Tamworth race that there was a risk that another rider would ride carelessly or recklessly in breach of r 137(a) of the Australian Rules of Racing by riding out from the rail and carrying another horse with him, thereby causing that horse to intrude on the path of the appellant’s mount and bring him down, causing him injury. Mr Ryan agreed that the possibility that a jockey’s mount would be the victim of interference caused by another jockey arose in every race.

Indeed, Mr Ryan was asked about the incident in the present case, as is recorded in the reasons of Payne JA at [171] as follows:

In Singh v Lynch, the Court of Appeal (Basten, Leeming, Payne and McCallum JJA and Simpson AJA) was unanimous in finding that horseracing was a sport within s 5K(a) of the Act and therefore a dangerous recreational activity. As it was not in issue that horseracing involved a significant risk of physical harm, horseracing was accepted to be a “dangerous recreational activity”. However, there was a division of opinion on the Court on the question of “obvious risk”. The majority (Basten, Leeming and Payne JJA) concluded that the appellant’s injury was the materialisation of an obvious risk. At [51]-[52], Basten JA considered that the determination of “obvious risk” did not invoke a legal concept and that the statutory language had to be applied in terms. His Honour said that there was “limited value in further exegesis”. His Honour agreed with what Leeming and Payne JJA said in support of the conclusion that the appellant’s injury was the materialisation of obvious risk. Leeming JA said, at [139]-[140]:

Payne JA set out the passage extracted above from Mr Ryan’s evidence and concluded that it was “dispositive” of the question of the obviousness of the risk.

The minority (McCallum JA and Simpson AJA) concluded that the appellant’s injury was not the materialisation of an obvious risk. Their Honours said:

Mr Singh applied for special leave to appeal to the High Court. The High Court (Gordon, Gageler and Edelman JJ) refused the application on 11 February 2021: Singh v Lynch [2021] HCATrans 12. In refusing the application, Gageler J said:

The question of obviousness of risk under the Act in the context of dangerous recreational activities arose again in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263. The plaintiff, Emily Tapp, fell from her horse when competing in a campdraft event and suffered a significant spinal injury. She was unsuccessful at first instance and appealed to the Court of Appeal. Her appeal was dismissed, by majority (Basten and Payne JJA, McCallum JA dissenting). Relevantly, the majority found that there was no error in the primary judge’s finding that the injury the plaintiff suffered was the result of the materialisation of an obvious risk of a dangerous recreational activity. The plaintiff sought to distinguish Singh v Lynch on the basis of an argument that her fall had been caused by the deterioration of the surface of the arena on which the campdraft event had taken place. The majority found that the plaintiff had not established that a cause of her fall was a deterioration in the surface of the arena and that the exercise of reasonable care required the defendant to suspend the event until the arena was resurfaced or ploughed. McCallum JA, in dissent, considered that there was powerful evidence that the surface of the arena had deteriorated and that this was a cause of the accident.

On 16 April 2021, the High Court granted special leave to appeal: Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2021] HCATrans 74. In so far as these matters can be discerned from the transcript, it appears that special leave was granted because of the submission made on behalf of Ms Tapp was that there was strong evidence that Ms Tapp’s horse slipped because of the condition of the ground, which was, accordingly, a cause of the fall. It would appear that the grant of special leave in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd does not cast doubt on the correctness of Singh v Lynch, in which the cause of the fall was the conduct of another rider, which was held to be an obvious risk. Indeed, the situation in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd would appear to correspond with the category envisaged by Leeming JA in the passage extracted above from [140] of his Honour’s judgment in Singh v Lynch.

Mr Malouf, who appeared on behalf of the plaintiff, at the hearing of the application for approval, informed me that he was instructed to obtain the approval. However, he expressed reservations about whether the High Court’s ultimate decision in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (which has not yet been allocated a hearing date) might affect the identification of obvious risk and, accordingly, the plaintiff’s prospects of success in the present case. His reservation derived from the view of the minority in Singh v Lynch that, while careless riding was an obvious risk, deliberate foul play was not an obvious risk of horseracing. He noted that, in the present case, the plaintiff had pleaded not only carelessness on the part of the defendant but also “foul” or “improper” riding. While this distinction was immaterial to the majority in Singh v Lynch, it was crucial to the minority view. It is this matter which caused Mr Malouf to refrain from fully endorsing the application for approval which he was instructed to make on behalf of the plaintiff. Mr Miller made it clear that the defendant would not extend the offer beyond today. I accept Mr Miller’s submission that, in light of the refusal of the special leave application in Singh v Lynch, there were no real prospects of the High Court’s decision in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd affecting the plaintiff’s prospects of success in the present case. Even were the plaintiff to succeed in establishing something beyond mere negligence against the defendant, this would not be sufficient to defeat the defendant’s defence under s 5L of the Act in light of the authority of Singh v Lynch, the correctness of which is highly unlikely to fall for consideration in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd.

A settlement of proceedings on the basis of a judgment in favour of the defendant with no order as to costs will be in the interests of the plaintiff if the case is, in effect, bound to fail. If there are reasonable prospects of success of such action, such a settlement would not be in the plaintiff’s interests. I am satisfied that, on the authority of Singh v Lynch, the plaintiff’s action would fail at trial. No additional feature has been identified which would bring it into the category referred to by Leeming JA at [140] in Singh v Lynch, to which it would appear the case of Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd might belong. If the plaintiff were successful on liability, it would appear from the experts’ reports tendered on the application, that he would be entitled to substantial damages (for ongoing cognitive impairment, together with physical injuries sustained in the accident). However, I do not consider the plaintiff to have any real prospects of success. I have also taken into account Ms Mullins’ evidence that neither she nor the plaintiff has any wish to pursue a claim with no present prospects of success. Nor do they wish to run the risk of an adverse costs order against them.

As pleaded in his amended statement of claim, Mr Lynch’s injuries were caused by Mr Cavallo’s method of riding his horse in the Mudgee Race. In these circumstances, where no other correlative cause has been identified, there is no reason to distinguish Singh v Lynch. Because Mr Lynch’s injuries were caused by the materialisation of an obvious risk of a dangerous recreational activity engaged in by him, the defendant would not, if the matter were permitted to proceed to trial, be found liable for the harm caused to him.

For the reasons given above, I make the following orders: