The Wagga Wagga Show Society staged its agricultural show in 2012. An experienced show and stock horse rider, Jane Citizen (not her real name), was riding her horse in a designated warm-up area of the showground before a class. Some children nearby caused a loud noise by banging their feet on a metal sheet erected on a fence. Another horse was startled. Either this horse’s reaction or the noise itself startled Ms Citizen’s mount, which faltered and fell on its side with her in the saddle. She was badly injured. Disappointingly, she was not wearing a helmet, but the Society did not press a claim of contributory negligence, presumably because a helmet would not have prevented or lessened her injuries. Ms Citizen sued the Society for compensation for negligent breach of duty, in essence that the Society had no-one present to control children around the warm-up area. At the trial in May 2019 (yes, a long time after the incident), the New South Wales’ Supreme Court upheld all of the Society’s defences, dismissed Ms Citizen’s claims and ordered her to pay the Society’s legal costs. The Court’s reasons are important to all horse riders and show organisers.
Firstly, Ms Citizen signed the Society’s required risk warning and waiver form and admitted that she knew the importance of it. The form said in part “The Agricultural Society’s Council of New South Wales advises that the participation including passive participation, in events or activities at an agricultural show contains elements of risk, both obvious and inherent. The risks involved may result in property damage and/or personal injury including death.” The form contained an acknowledgment by Ms Citizen that participation with horses, including her own, in events and activities at the show carried an element of risk.
Ms Citizen argued the warning was too general and should have directed her to the particular risk (ie children banging a metal sign startling a horse) which caused her injury and therefore did not meet statutory requirements. The Court disagreed. It held the risk warning complied with civil liability statutory requirements by warning that participating in horse activities and events was risky and that death or injury could result. It followed, in the Court’s judgment, that the Society owed no duty of care to Ms Citizen to take care in respect of the risk of her horse spooking and falling on her.
Second, under statute law, a defendant is not liable in negligence for harm suffered by another person as a result of the materialisation of an ‘obvious risk’ of a ‘dangerous recreational activity’. The Court held irrespective of whether a horse is being warmed up, participating in an event or competing, horse riding is a dangerous recreational activity because it involves a significant risk of physical harm. The Court held that the risk that eventuated was an obvious one to a reasonable person in the position of Ms Citizen exercising ordinary perception, intelligence and judgment. The test for obviousness was objective. It was unnecessary, in the Court’s view, to define the risk as the horse spooking to particular identified stimuli, such as the unruly children banging a metal sign. The risk that was ‘obvious’ for statutory defence purposes was the propensity of a horse to make a sudden and unexpected movement in response to external stimuli. The Society was not therefore liable in negligence to Ms Citizen.
The Court found that even placid horses were prone to being frightened or spooked by any number of external stimuli, such as loud noises and movement from other horses. The Court found that, as a matter of common knowledge, there was no such thing as a ‘bomb proof horse’. Under cross-examination, Ms Citizen admitted that all sorts of things might spook horses, even normally quiet ones.
Third, under statute, a person is not liable in negligence for harm suffered by another as a result of the materialisation of an ‘inherent risk’. An inherent risk under statute law is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. The Court held that given myriad stimuli, both auditory and visual, which might cause even a placid horse to spook, any resulting injury was an inherent risk of horse riding, therefore the Society was not liable in negligence for Ms Citizen’s injuries.
Fourth, the Society was under a common law duty of care to everyone entering and competing in, events at the show. However, the Society was not negligent in taking precautions against the risk of harm unless the risk was foreseeable, not insignificant and, in the circumstances, a reasonable person in the Society’s position would have taken those precautions. The Court held that the risk of harm to Ms Citizen as a result of her horse spooking was indeed foreseeable and significant. But it was not satisfied that a reasonable person would have taken precautions against the risk of harm to Ms Citizen given the burden of taking precautions against the occurrence of myriad external stimuli to which a horse might react suddenly and unexpectedly. The Court referred to a piece of paper blowing across the ground as just one example of such stimuli. It is easy to think of others: a shadow, a tree branch moving in the wind, a flock of birds, an umbrella opening.
There are clear lessons to be learned from this case for those involved in horse recreation and sport. All such activities (including handling a horse) are considered in law to be dangerous recreational ones attracting the ‘obvious risk’ defence. Risk warning and waivers are necessary safeguards against liability claims and they will stand up in Court. Unexpected and sudden movements of horses in response to all manner of stimuli are inherent risks for which no-one is to blame if harm results. The Courts are now confidently holding that serious personal injury and death arising from horse riding and handling is no-one’s fault. So riders and handlers – never stop acquiring and improving skills to control your horse and recognise that under the law you participate in horse activities by and large at your own risk. Personal accident and income protection insurance are sensible options to protect against the financial consequences of harm.
12 July 2019
© 2019 Michael Mackinnon, Solicitor & Independent Counsel