Often, when deep in sporting contract negotiations, provisions regarding compensation for injury are often overlooked by players and sporting organisations alike. However, a recent decision by the NSW Court of Appeal will likely see such discussions elevated back up the negotiation agenda.

In Goode v Angland [2017] NSWCA 311, the Court considered whether section 5L of the Civil Liability Act 2002 (NSW) (the CLA) could be relied upon as a defence to claims of professional sporting negligence. The facts of this case were:

  • Mr Goode sustained serious injuries in a fall while he was riding as a professional jockey in 2009.
  • Mr Goode claimed that his injuries were directly caused by the negligence of another jockey, Mr Angland, who he claimed rode in such a manner as to cause interference with his horse.

Ultimately the Court determined that the risk of falling from a horse and being seriously injured is an “obvious risk”. The CLA provides that a person will not be liable in negligence where an obvious risk eventuates when participating in a dangerous recreational activity.

The NSW Court of Appeal held:

  1. Professional horse racing, or any professional sport for that matter, is a ‘recreational activity’ for the purpose of the statutory defence. Importantly, the legislation does not expressly distinguish between professional sport and sporting activities undertaken for enjoyment or leisure.
  2. Mr Goode falling from his horse and sustaining injury was an obvious risk that materialised while undertaking a dangerous ‘recreational activity’.
  3. Accordingly, Mr Angland had a complete defence against liability for Mr Goode’s injuries and Mr Goode was unsuccessful in his claim of negligence.

Implications for sporting organisations and beyond

The decision displays a broader interpretation of the term ‘recreational activity’ in the CLA to include all professional sports and means:

  • insurance premiums for professional sporting organisations may be reduced by ultimately barring an athlete’s standing to sue when harmed as a result of an ‘obvious risk’;
  • athletes participating in high contact professional sports such as Rugby, Australian Rules Football or Soccer must assume a greater risk of injury with a restricted ability to pursue a civil liability claim; and
  • as the risk or likelihood of injury increases, the prospect of a successful claim for damages may decrease.

What should your Sporting Organisations do?

Above all, the decision in Goode will likely reshape the landscape of player contract negotiations, particularly in relation to compensation for injury. To ensure your sporting organisation doesn’t get left behind, we recommend you consider:

  • the scope and application of your organisations internal policies and procedures in relation to injuries sustained by athletes during the course of participation;
  • your organisations current player contracts, bearing in mind that provisions regarding compensation for injury may now be outdated; and
  • how your organisation will approach future contract negotiations in light of these changes.

Griffin Legal has extensive experience in negotiating, drafting and reviewing amateur and professional sporting contracts. If you would like to inquire further about our services, please contact our office on (02) 6198 3100.

The Australian Sports Commission – Mandatory Governance Principles

The Australian Sports Commission (the ASC) released the Sports Governance Principles in 2002 (revised in 2007 and 2012) as a response to the increased importance of governance practices in the performance of sporting organisations. In 2013, seven highest funded sports were required to comply with the Mandatory Sports Governance Principles (the Principles). In 2015 the …
Read more

Essendon, AFL, ASADA and WADA – what is it all about?

Yesterday the Court of Arbitration for Sport handed down its Panel decision in World Anti-Doping Agency v. Thomas Bellchambers etc al., Australian Football League, Australian Sports Anti-Doping Authority (CAS 2015/A/4059). This post is a brief explanation of what has gone on in this disappointing saga of Australian sport involving one of the oldest and most …
Read more

Brumbies in Crisis

At what point does it become obvious that an organisation is in crisis and that urgent action is required. The litany of governance issues which have beset the Brumbies organisation in the last 12 months reads like a fiction story.  That these are real events in the history of a great organisation is a demonstration …
Read more