Former Hunter Valley professional jockey Hari Singh, who was left permanently brain damaged from a horror race fall caused by another rider's negligence, has been denied compensation because horse racing is a "dangerous recreational activity" that presents an "obvious risk".
Singh, of Muswellbrook, who will never work again, had to be assisted by his wife, due to his disability, in court proceedings brought against fellow jockey Glenn Lynch following the fall at Tamworth in August 2012.
The then 27-year-old suffered a fractured vertebrae and bleeding on the brain that lead to a permanent brain injury.
Although the NSW Court of Appeal found Lynch negligent because his "reckless" and "deliberate" riding, in trying to get off the rail, pushed another horse in front of Singh causing his ride to fall, the country jockey was found not liable.
In a split decision 3-2, the court upheld a previous ruling by Justice Desmond Fagan that Singh's injury "was the result of the materialisation of an obvious risk which occurred in the course of a dangerous recreational activity".
Singh's legal team, Morgan English Lawyers, plan to seek special leave to appeal to the High Court. Partner Annette English said the decision had widespread implications for professional sports people injured in their jobs.
She said the legislation did not take into consideration professionals, including jockeys, race car drivers and others, who take considerable risks everyday.
Ms English said the "tragic event" meant Singh would forever need help in his daily life.
"They have said that horse racing is a dangerous recreational activity and people involved in it can't get the claim they would normally be entitled to if they are injured," she said. "This means any number of professional sports people who suffer an injury have no protection."
Following the accident, stewards charged and suspended Lynch for seven weeks for careless riding.
Singh never rode again, spent months in rehabilitation and now faces a hefty legal bill after he was ordered to pay Lynch's legal costs.
Following the fall Singh was left in an induced coma at John Hunter Hospital while immigration officials attempted to find his wife and daughter in their remote Indian village.
Singh moved from India to the Hunter Valley about 15 years ago, starting work as a stablehand before getting a start as an apprentice jockey.
The popular jockey spent time with trainers Paul Messara (Scone), Jeff Englebrecht (Muswellbrook) and Paul Perry (Newcastle).
After losing a Supreme Court case for compensation late last year, Singh's wife directed his lawyers to appeal the decision on his behalf.
The NSW Court of Appeal - Justice John Basten, with whom Justices Anthony Payne and Mark Leeming agreed - upheld the decision and found Singh's injuries resulted from an "obvious risk" while he was participating in a "dangerous recreational activity".
They accepted Lynch's riding was "unexpected, unreasonable and unnecessary", but ruled there was an obvious risk.
The three agreed that the original finding that Lynch was "merely careless" was wrong, instead finding him "reckless", but concluded he was exempt from liability.
But Justice Lucy McCallum and Acting Justice Carolyn Simpson disagreed, saying the appeal should be upheld because Lynch's riding was careless and deliberate and involved a risk of accident.
They proposed Singh be given $5 million in compensation and Lynch pay his court costs.
"The question is whether it would have been obvious to a reasonable person in the position of the appellant [Singh] that another professional jockey would ride his horse in the manner that the primary judge found that the respondent did, that is, deliberately directing his horse to push sideways or "bump" against another horse so abruptly as to move that horse off her line of running and into the line of running of a third horse," they wrote.
"The riding of the respondent [Lynch] was aggressive and not merely careless: involving deliberate and persistent riding by the respondent which caused the fall."
They found careless riding was a risk of racing, but deliberately causing a horse to collide with another was not.
Ms English described the dismissal of the appeal as unfortunate, but said the split decision offered an opportunity for the case to continue to the High Court.
"This is a very significant problem, especially for jockeys who are taking on a lot of risk," she said. "There is a likelihood of falls and they are not protected."