Lynch v Cavallo [2018] NSWDC 301

Lynch v Cavallo [2018] NSWDC 301

At this interlocutory stage and on the state of the evidence, it cannot be said that the risk of injury resulting from a fellow rider breaching the rules of racing was an obvious risk within the meaning of s 5L of the Civil Liability Act 2002; nor is the plaintiff's pleading sufficient to found such a finding. Accordingly, the proceedings should not be dismissed and the defendant's application fails.

Jurisdiction
Australia
Judgment Date
19 October 2018
Procedural Posture
Civil / Interlocutory Application; Decision on Defendant's Notice of Motion to Dismiss Under Rule 13.4
Outcome
Dismissal of defendant's Notice of Motion; costs order in favour of plaintiff
Legal Topics
['negligence' 'obvious Risk' 'dangerous Recreational Activity' 'procedural Dismissal' 'costs']
['torts'] ['negligence' 'obvious Risk' 'dangerous Recreational Activity' 'procedural Dismissal' 'costs']

Case Brief

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Procedural Posture

Civil / Interlocutory Application; Decision on Defendant's Notice of Motion to Dismiss Under Rule 13.4

Legal Issues

  1. 1 ["Whether the plaintiff's proceedings should be dismissed as disclosing no reasonable cause of action under Rule 13.4 Uniform Civil Procedure Rules 2005 (NSW)" 'Whether s 5L of the Civil Liability Act 2002 (NSW) provides a complete defence on the basis of obvious risk and dangerous recreational activity in the context of professional horse racing']

Ratio Decidendi

At this interlocutory stage and on the state of the evidence, it cannot be said that the risk of injury resulting from a fellow rider breaching the rules of racing was an obvious risk within the meaning of s 5L of the Civil Liability Act 2002; nor is the plaintiff's pleading sufficient to found such a finding. Accordingly, the proceedings should not be dismissed and the defendant's application fails.

Court Disposition

Dismissal of defendant's Notice of Motion; costs order in favour of plaintiff

Orders

  • ["Dismiss the defendant's Notice of Motion filed on 2 August 2018." "Order the defendant to pay the plaintiff's costs of the Notice of Motion."]