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23 July 2019

Is helping out at the greyhound track a ‘dangerous recreational activity’? It can be

In Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780, the Supreme Court of New South Wales delivered a verdict in favour of a local greyhound racing club. The claim was made by a volunteer who was hit by a mechanical lure travelling at over 60 kilometres per hour.

In Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780, the Supreme Court of New South Wales delivered a verdict in favour of a local greyhound racing club. The claim was made by a volunteer who was hit by a mechanical lure travelling at over 60 kilometres per hour.

The case highlights that the application of the ‘dangerous recreational activity’ defence is a fact sensitive enquiry and some aspects of an activity may be categorised as dangerous while others are not.


The plaintiff was a member of the Hastings River Greyhound Racing Club, which held non TAB untelevised races at Wauchope on the New South Wales mid north coast. Almost all the roles at the club were done on a volunteer basis.

On Anzac Day 2015, the club president asked the plaintiff to operate the catching pen gates. To operate the gates, the plaintiff had to wait for the dogs to run past the first straight and then move the gate across the track to a point near the inside railing, leaving enough space between the gate and the railing for the lure to pass after the finish of the race.

The plaintiff had done the task before and Associate Justice Harrison accepted evidence from the club president that all volunteer roles, including the catching pen gate operator, were quite straightforward and that no formal training was given or required.

While operating the gate, the plaintiff became distracted when he saw a dog fall on the track. While his attention was on the dog (a period of 10-15 seconds), the lure smashed into his left leg at a speed of 60-73 kilometres per hour.


In finding in favour of the club, her Honour addressed several defences, but her favourable decision in relation to the ‘dangerous recreational activity’ provisions of the Civil Liability Act 2002 (NSW) is perhaps of the most interest to the sports and recreation industry and its insurers.

Section 5L of the CLA (the equivalent of section 19 of the Civil Liability Act 2003 (Qld)) provides as follows:

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

Section 5L is a complete defence to a claim. Her Honour addressed the key elements of the defence :

  • In cross-examination, the plaintiff had, at least in hindsight, acknowledged that the risk of suffering serious injury from being struck by the lure ‘was easily identifiable’. Her Honour therefore had no difficulty accepting the risk of injury was ‘obvious’ within the meaning of the CLA. For the purpose of the defence therefore, the plaintiff was presumed to be aware of the risk.
  • The plaintiff argued that operating the gate was not a ‘recreational activity’. He contended that the activity should be examined narrowly and that, as operating the gate itself was not ‘for enjoyment, relaxation or leisure’, it was not a recreational activity. Her Honour found that the definition should be assessed more broadly and that, as the plaintiff participated in community greyhound racing for ‘personal enjoyment’, it was a ‘recreational activity’.
  • The plaintiff argued that, when performed by a trained and experienced operator, the operation of the gate was ‘less dangerous than standing on a train platform’. Applying the leading authority of Fallas v Mourlas, her Honour stated that what is dangerous should be considered at a higher level of generality but that ‘time, place, competence, age, sobriety, equipment and even the weather’ may render a recreational activity dangerous which would not be otherwise. Her Honour found that a lure made of a steel bar travelling at 60-73 kilometres per hour posed a clearly significant risk of injury to someone standing in its path and was hence ‘dangerous’.

Primarily because the risk of injury was so obvious, her Honour also found that the club had not breached its duty to the plaintiff because, in her view, the prospects of someone placing themselves in such a position of peril were low. Her Honour also found that the only measure that may have altered the outcome would have been an engineering solution, which was adopted by some but not all greyhound tracks. Her Honour found that training would not have made a difference.

Lessons learned

In cases involving the ‘dangerous recreational activity’ defence, plaintiffs often argue that the specific elements should be considered narrowly and (for instance in Fallas) success on this point can even lead to parts an activity such as shooting not being assessed as ‘dangerous’.

Carter demonstrates that, although the application of the defence can be technical, it is a fact sensitive enquiry and the courts will take a commonsense approach. For instance, had the claimant been paid for the role or been involved in greyhounds purely for profit, the defence would not have been made out.

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