In recent years, there have been a number of injury cases decided by the courts in respect of injuries sustained during activities that were considered to be a “dangerous recreational activity”.
The New South Wales Court of Appeal in particular has been tasked with considering what is a “dangerous recreational activity”, what is an “obvious risk of injury”, and how do statutory defences apply to these types of matters.
The recent decision of the High Court of Australia in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited  HCA 11 is the latest in a long line of litigation involving injuries sustained in the course of a horse riding event.
The Tapp decision is important for Plaintiff and Defendant lawyers as the High Court has provided clarity on these issues, and has expanded the narrow interpretation earlier adopted by the New South Wales Court of Appeal in recent decisions.
Ms Tapp and her legal team should be commended on the long road that they have travelled to justice, and the precedent that has been established which may allow other injured people to access justice and compensated accordingly.
Description of Incident
Emily Tapp was a 19 year old competitor, competing in a camp drafting competition along with her father and sister on 8 January 2011.
After having ridden the course earlier that day, Ms Tapp was due to compete in the open draft event at approximately 7:00pm as competitor 101.
Unbeknownst to Ms Tapp, prior to commencing her draft event competitors 65, 70A, 82 and 98 all had been involved in “bad falls” in which the riders were lucky not to be injured, as summarised by a Mr Shorten, who was one of the competitors that fell earlier in the open draft.
Prior to Ms Tapp’s event, another competitor, a Mr Stanton, complained to the Association that he believed the competition should be stopped as the ground was becoming too slippery.
Despite such complaints, the Association considered that the “surface was okay” and the competition continued with competitors advised to “ride to the condition of the ground”. It was later found that the Association did not actually inspect the ground in making such decision.
Justice McCallum, who provided a dissenting judgment when the matter was decided by the NSW Court of Appeal, considered that “the primary motivation for the decision to continue the competition did not appear to be a positive satisfaction that the surface was safe, but rather that the competition should be continued in the interests of fairness to competitors who had already ridden”.
From Ms Tapp’s perspective, she was not aware of the preceding four falls as she was warming up at the time. She heard the notice on the speaker that that any competitors who wished to withdraw from the event could do so and receive a full refund. Ms Tapp however was not aware of the context in which the notice was being given.
Ms Tapp proceeded with her draft when her horse slipped and fell, causing Ms Tapp to sustain significant injuries, resulting in her becoming a paraplegic.
Decision of the Supreme Court of New South Wales
It was found by the primary Judge in the Supreme Court of New South Wales that “informed consideration” was made by the Association that it was safe for the completion to continue.
The fact that the arena was ploughed for 3 hours the day after Ms Tapp’s fall could not be considered an admission of liability, and the Association therefore was found not to have breached the duty of care owed to Ms Tapp.
The Primary Judge found the Association had no obligation to inform Ms Tapp of the risk of falling from her horse during the campdraft event, as this risk was obvious.
Court of Appeal of the Supreme Court of New South Wales reaffirming decision of Primary Court
Ms Tapp appealed the primary Judge’s decision and whilst she was successful on some grounds, she was not successful in establishing the necessary grounds for the orders made by the primary Court to be overturned.
It was found that Ms Tapp did not establish that the subject fall occurred as a result of the deterioration of the grounds and therefore, even had the Association taken steps to plough the area or warn Ms Tapp of the grounds, the incident could have still occurred as the risk of falling from a horse is inherent in a campdrafting competition.
As such, the Court of Appeal found that the Association was not liable.
Appeal to the High Court of Australia
Breach of Duty
On Appeal, The High Court considered that the failure “… to suspend competition in order to plough the surface of the arena is a question that cannot be approached on the basis that the only relevant consideration was to ensure the safety of competitors. If that were the only consideration, no campdrafting events would be permitted, because the risk of serious injury is intrinsic to the sport.”
The High Court considered the dissenting view of Justice McCallum from the Court of Appeal decision as having expressed a more accurate characterisation of the risk being “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” rather than the risk of falling from a horse, as had been considered by the earlier courts.
On consideration of Ms Tapp’s matters, was the statutory defence contained in section 5 (2) of the Civil Liability Act 2002 (NSW).
When considering the effect of these provisions, the court concluded as follows:-
- (i) the relevant risk was substantially elevated, so that a reasonable person in the position of the Association could have foreseen a probability that harm would occur if the competition were not stopped until members of the Committee or MRC had taken precautions beginning with inspecting the arena to be satisfied that the ground of the arena was reasonably safe…” The Court considered this appropriate given the four “bad falls” that had occurred prior to Ms Tapp commencing her draft and the multiple complaints made by Mr Stanton.
- (ii) the likely seriousness of the harm was at the level of physical injury that could be catastrophic;
- (iii) the burden of taking precautions to avoid the risk of harm was the simple act of stopping the event to inspect the arena and consider the safety of the ground of the arena; and
- (iv) these matters could not be outweighed by the social utility of continuing the event so that contestants who had already competed on worse ground were not at a competitive disadvantage.
The Court overall found that based on the above points, the Association had breached their duty of care owed to Ms Tapp.
The Court found that the Association ought to have known of the “…substantially elevated risks of physical injury” to contestants where there was a failure “…to stop the event in order to inspect the ground of the arena…” and to consider how safe it was.
The High Court then concluded that there was a causal link between the Association’s breach of duty and Ms Tapp’s injuries. They came to such conclusion by taking into consideration the following:-
- Where falls in a camp drafting competition are considered rare, four falls in less than an hour ought to have signalled to the Association that the grounds needed attention;
- “the two warnings about the state of the ground by the very experienced contestant, Mr Stanton”;
- The grounds has been identified to some extent as being dangerous; and
- That it took “…a disc plough three hours to remediate the ground the next morning, which demonstrated how apparent it would have been that the condition of the ground was poor”. Whilst in accordance with section 5C (c) of the Civil Liability Act 2002 (NSW), the fact that the arena was ploughed for 3 hours the day after Ms Tapp’s fall could not be considered an admission of liability by the Association, the Court made inferences that it ought to have been apparent that the conditions of the grounds were poor in the circumstances.
It was found that 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 was not obvious in the circumstances to a reasonable person in the circumstances of Ms Tapp.
Ms Tapp was not aware of the four falls prior to her draft as she was warming up at the time and these falls had not been communicated to Ms Tapp. Ms Tapp also did not have any reason to be concerned about the state of the grounds as she, her sister and her father had all competed on such grounds earlier that day without a fall.
She was aware that the event was delayed prior to her draft but was not informed of the reasons why. Whilst she heard the announcement made in relation to the offer of refund for entry fee in the event a rider chose not to compete, she was not aware why such offer was made as this was not communicated to her.
Ms Tapp also did not have the opportunity to inspect the grounds on which she would be competing after the four falls had occurred, and therefore she could not assess the actual risk that she would be incurring by competing in the open draft event.
Ms Tapp was therefore guided by the Association that the grounds were safe to compete on.
Overall, the High Court concluded that the risk of injury to a reasonable person in the circumstances of Ms Tapp was not obvious.
The High Court allowed the appeal from the Court of Appeal of the Supreme Court of New South Wales where such orders were set aside.
It was ordered that:-
- (i) there be verdict and judgment for the plaintiff in the agreed amount of $6,750,000; and
- (ii) the defendant pay the plaintiff’s costs.
Impact of Decision
The consideration by the High Court in the Tapp decision will have far reaching ramifications for injuries sustained by Plaintiff’s in the course of an activity that could be considered a “dangerous recreational activity”.
Whilst the High Court decision focused on the interpretation of the statutory defence in the New South Wales legislation, other jurisdictions have similarly worded statutory defences, and this decision should apply to claims for injuries occurring around Australia.
Following the decision in Tapp, we should see less restriction surrounding claims involving “dangerous recreational activities” when the cause of injury was not one that the Plaintiff had anticipated, and which was therefore not an obvious risk to the Plaintiff.
Whilst in the circumstances of the Tapp decision, camp drafting is inherently dangerous, as concluded by the High Court, it must be considered whether there are special circumstances where a Defendant’s acts or omissions have caused a breach in their duty owed to a Plaintiff and such acts or omissions have resulted in a risk not being obvious to a reasonable person in the circumstances of a Plaintiff. This is a key takeaway for Plaintiffs and Defendants when looking considering a claim involving a “dangerous recreational activity”.
Every case will be determined on its own set of facts and therefore, tailored advice is required.
If you think you have been injured whilst engaged in a dangerous recreational activity for which the risk that caused personal injuries was not obvious, we encourage you to contact Turner Freeman Lawyers for an obligation free case assessment.
This blog post was prepared by Karla Macpherson, lawyer of our Gold Coast office, and approved by Ciaran Ehrich, partner.