Emily Tapp fell from her horse while competing in a campdraft event in January 2011 and sustained a very serious injury. She sued the Australian Bushmen’s Campdraft & Rodeo Association Ltd for compensation. On 4 November 2019, the Supreme Court of New South Wales dismissed her claim which I wrote about in the January 2020 issue of the magazine. She appealed. On 23 October 2020, the NSW Court of Appeal dismissed her appeal. The Appeal Court’s reasons for deciding several issues on appeal are worth drawing to the attention of horse event organisers in Australia.
Firstly, standard of care. In every liability claim for a horse related injury, the injured person must pinpoint the risk of harm against which the organiser negligently failed to take precautions. The injured person must establish that the organiser’s negligent act or omission in addressing the risk resulted in his or her injury making the organiser legal responsible.
All these stages: identifying the risk, proving that its materialisation caused the claimant’s injury and proving that the organiser failed to respond to the risk threat with reasonable care, are matters that require careful legal analysis and evaluation often with the support of experts.
Two out of the three Appeal Court Judges held that Ms Tapp’s horse fell but she was not able to prove why it fell. They decided that Ms Tapp’s claim that her fall was caused by a deterioration of the surface of the arena was not made out on the evidence. As she was not able to jump this evidentiary hurdle, Ms Tapp could not establish that the Association failed to exercise reasonable care by stopping the event, or ploughing the surface, or issuing a warning that the arena ground had become unsafe.
The third Appeal Court Judge, however, disagreed and held there was strong evidence that the surface of the arena had become unsafe and the Association had failed to address the risk in breach of the standard of reasonable care expected of it. This Judge would have upheld Ms Tapp’s claim that the Association breached its reasonable standard of care owed to her as the event organiser and manager.
Second, obvious risk. A person is not liable in negligence for harm suffered by another person as the result of the materialisation of an ‘obvious risk’ of a ‘dangerous recreational activity’. This is a liability defeating rule. The Association succeeded at trial in establishing that Ms Tapp’s injury was the result of the materialisation of an ‘obvious risk’ and therefore the Association had no duty to warn Ms Tapp of the risk.
There was no issue on appeal that participation in a campdraft was a dangerous recreational activity. At the appeal hearing, the argument was about how to define ‘obvious risk’ for the purpose of the Association establishing that it had no duty of care to warn of the risk to Ms Tapp that eventuated.
The liability defeating rule therefore hinged on a legally correct description of the obvious risk which materiliased causing harm to Ms Tapp.
Her lawyers formulated the relevant risk of harm as “the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena”.
Once again, the Appeal Court Judges were divided. Two of them held that the risk of injury so defined by Ms Tapp’s lawyers was obvious to a reasonable rider competing in the campdraft event who had many years of experience like Ms Tapp. These 2 Judges held, however, that the description of the risk should, as a matter of law, have included the element that caused the fall. In other words, the description had to encompass the nature of the deterioration which could lead to a fall such that the risk was obvious. The link between deterioration of the arena surface and the fall was not something that Ms Tapp had been able to prove at trial. The other Appeal Court Judge held that the risk defined by her lawyers would not have been obvious to a reasonable person in Ms Tapp’s position and would therefore have rejected the Association’s reliance on the liability defeating rule.
This case is the latest in a string of Supreme Court decisions that have rejected liability claims by horse riders and competitors for serious personal injury from falls at competitions and events. Organisers should always plan appropriately, keep an eye out for potentially dangerous situations and be responsive to safety concerns. Organisers must exercise a reasonable standard of care to protect rider and competitors against the risk of harm. But they are not expected by law to guarantee that serious injuries will not be suffered. Accidents happen for which no-one is legally responsible. Horse riding is potentially dangerous and, because the activity entails many risks that are obvious to the reasonable person, riding is at one’s own risk to that extent.
© Michael Mackinnon, Solicitor & Independent Counsel