This majority High Court judgment (per Gordon, Edelman & Gleeson JJ, with Kiefel CJ & Keane J dissenting) concerns:
- whether the respondent rodeo association breached its duty of care to the applicant horse-rider, Ms Tapp;
- whether that breach/those breaches caused her significant injuries and disabilities; and
- whether the harm she suffered was the result of the ‘materialisation of an obvious risk of a dangerous recreational activity’.
Background
The plaintiff (appellant), Ms Tapp, was a veteran horse-rider and campdraft competitor (*Campdrafting is a unique Australian sport involving a horse and rider working cattle).
In January 2011, Ms Tapp competed in a campdrafting competition at Ellerston in the Hunter Valley, whereby her horse slipped on the competition surface, and she fell badly resulting in significant personal injury, loss and damage
Had this been a one-off fall, it is unlikely that Ms Tapp would have been successful in arguing that anyone else (such as the rodeo association) should be held liable for her fall.
However, in this case, four (4) other experienced horse-riders had had falls before Ms Tapp during a period of about 45 minutes. This was significant, because the Court heard evidence that:
- falls in this competition were generally uncommon; and
- that another experienced rider had repeatedly raised rider-safety concerns with event organisers regarding the surface in the competition arena.
The High Court’s decision to overturn previous decisions and award damages of $6.75 million (plus costs) is remarkable. It upsets and challenges a statutory defence argument – often bandied about by defendants’ solicitors – that claims for injuries suffered while horse-riding (or doing other ‘dangerous recreational activities’) are automatically doomed to fail.
Key Provisions
- Briefly, section 5L of the Civil Liability Act 2002 (NSW) provides a statutory defence in circumstances where an activity is deemed to be a ‘dangerous recreational activity’ (such as horse-riding).
- Section 5K provides that the definition of ‘dangerous recreational activity’ includes this kind of organised sporting activity, whereby the very nature of the recreational activity involves a significant risk of physical harm.
- This case also canvasses interpretation of ‘obvious risks’ as defined in section 5F, but it is important to note that 5L, above, is applicable regardless of whether the injured person was aware of the specific risk of harm.
Decision
- Yes, campdrafting is a ‘dangerous recreational activity’;
- But, the harm suffered by Ms Tapp was “not the materialisation of an obvious risk of that activity”;
- The risk of harm in question was actually “the substantially elevated risk of physical injury by falling from a horse that slipped by reason of the deterioration of the surface of the arena”; and
- That the above-mentioned risk would not have been ‘obvious’ to a reasonable person in Ms Tapp’s position.
The conclusion from the above being that the rodeo association was negligent in failing to stop the campdrafting event.
This decision may have a big impact on litigation in public liability matters. We would certainly expect an increase in the number of claims involving personal injury suffered in the course of dangerous recreational activities.
