On 4 November 2019, the Supreme Court of New South Wales dismissed a compensation claim by Emily Tapp against the Australian Bushmen’s Campdraft & Rodeo Association Ltd. Ms Tapp fell from her horse in January 2011 while competing in a campdraft event and sustained a quadriplegic injury. She argued that her injury was caused by the Association’s negligence in failing to prepare and maintain the arena surface in a safe condition.
The Court upheld the Association’s various defences, dismissed Ms Tapp’s claim and ordered her to pay the Association’s legal costs. Let’s look at these successful grounds of defence.
First, in NSW (as in other States), 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’.
The Court decided that whether a risk was obvious is determined objectively: was the risk one that in the circumstances would have been obvious to a reasonable person in the position of Ms Tapp exercising ordinary perception, intelligence and judgment? The test required that Ms Tapp’s age (19 years old), observations (she knew campdrafting was dangerous and that she might suffer serious injury or death from participating) and experience (she had had many years of campdrafting experience) be taken into account. The Court held that the risk of falling from a horse and the risk of serious injury caused by a fall were obvious risks according to this legal test.
The Court decided that it was unnecessary to define the particular risk of harm with a high degree of particularity. In other words, there was no requirement that, in order for the risks of falling from a horse and being seriously injured to be obvious, a reasonable person had to be aware of the exact circumstances that led to the rider falling from the horse or exactly how the injury was sustained. That one could fall from a horse and suffer a spinal injury was obvious enough.
Further, the Court had no trouble holding that a campdraft was a dangerous recreational activity given the characteristics of the activity – with the additional danger of chasing an unpredictable beast.
Given the unpredictability of horses, there is little doubt that Courts will accept horse activities to be dangerous recreational activities because they involve a significant risk of physical harm.
Second, the Court found that that risk of injury was the subject of a risk warning contained in a ‘Liability Waiver form’ that Ms Tapp had signed as a precondition to becoming a member of the Association. The Court held that under the NSW Civil Liability Act 2002, a risk warning for recreational activities can be accorded legal force so that there is no duty of care where an appropriate risk warning is given. There is a similar statutory position in other States. The Court decided that the Association’s waiver form was clear, it required Ms Tapp to acknowledge campdrafting was a recreational activity and that there were risks including personal injury or death and that by signing the waiver, she understood that she was waiving her rights to sue the Association. There was no legal requirement that the warning allude to the state of the arena surface as a factor that might lead to a fall or serious injury. As a result, the Association owed no duty to Ms Tapp to take care in respect of the risk of falling and being seriously injured as these risks were addressed in the form that she signed.
Third, while the Association admitted that it owed Ms Tapp a duty of care to organise, manage and provide the campdrafting event, it argued that the precautions (or standard of care) required to discharge this duty were “if a concern arose as to the continuing safety of the surface, appropriately experienced persons should conduct an inspection and decide, based on experience, whether the event should continue” and that that was exactly what occurred.
The Court agreed: The standard of care required in this instance was an informed consideration on the part of the Association whether it was safe to continue with the competition, given that someone had complained about the surface and other riders had fallen prior to Ms Tapp’s fall (although the Association denied these earlier falls had anything to do with the surface and it was not proven otherwise). The Court made it clear that hindsight was not to play any part in formulating the standard of care relating to a given incident.
Significantly, the Court was not prepared to hold that the Association was legally required to do any of the 24 things that Ms Tapp’s lawyers claimed that it negligently failed to do. The Court was particularly mindful that it was mandated by the NSW Civil Liability Act 2002 to consider the “social utility of the activity that creates the risk of harm” in deciding what precautions ought to have been taken. A risky sport like campdrafting entailed an individual’s choice to take risks, not all of which could be eliminated.
In the result, the Court held that Ms Tapp failed to prove that the Association was negligent by breaching the standard of care required of it.
Fourth, the Court decided that the Association was not liable to Ms Tapp because any individual whom Ms Tapp blamed for her fall was a ‘volunteer’ doing ‘community work’. Under the NSW Civil Liability Act 2002, a ‘volunteer’ is a person doing community work on a voluntary basis and ‘community work’ is work that is not for private financial gain, done for sporting purposes.
This case is the latest in a string of court decisions of high authority which support the right of individuals to engage in dangerous recreational sports, like horse sport and recreation, while absolving organisers from liability if the participant is seriously hurt. Riders ride at their own risk and must understand that even a quiet, rideable horse is no guarantee against harm. That is not to say that organisers are free to do whatever they like: they should plan appropriately and, most critically, be responsive to perceived safety concerns before and during an event or activity. In this case, that is exactly what the Association was able to demonstrate.
4 December 2019
© Michael Mackinnon, Solicitor & Independent Counsel