Peter Miller
Principal
Insurance
Obvious Risks of Dangerous Recreational Activities
10 April, 2022
Judgment date: 6 April 2022
Citation: Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2022] HCA 11
Jurisdiction: High Court of Australia
On 6 April 2022, the High Court of Australia set aside the judgment of the NSW Court of Appeal in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd. By a 3:2 majority, the High Court held the Association had breached its duty of care, that breach of duty caused Ms Tapp’s injuries and the risk that materialised was not an “obvious risk” of a dangerous recreational activity for the purposes of s 5L of the Civil Liability Act 2002 (NSW).
Background
On 8 January 2011, the appellant, Ms Tapp, was participating in a campdrafting event when her horse slipped, causing her to fall and sustain a serious spinal injury. Ms Tapp sued the Association in negligence. At first instance, her claim was dismissed. The NSW Court of Appeal upheld the primary judge’s decision by a 2:1 majority.
The issues on appeal in the High Court were:
- Whether the Australian Bushman’s Campdraft & Rodeo Association (Association) had failed to take reasonable precautions against the risk of injury;
- Whether that breach caused Ms Tapp’s injuries; and
- Whether her injuries arose from the materialisation of an obvious risk of a dangerous recreational activity.
By a 3:2 majority, the High Court allowed the appeal and awarded Ms Tapp damages in the sum of $6,750,000 plus costs (as had been agreed between the parties).
Did the Association breach its duty of care?
In determining whether the Association breached its duty of care, the majority (Gordon, Edelman and Gleeson JJ) considered the matters which were known, or ought to have been known, by the Association. Notably, there were four “bad falls” in a short period of time prior to Ms Tapp competing. In respect of these falls, Mr Stanton, an experienced contestant, had warned the organisers that the event should be stopped because the ground surface was becoming slippery and unsafe. The director of the Hunter Zone of the Association, Mr Shorten, had also conceded that prior to the incident, he and others had identified the ground “as being dangerous“.
Moreover, the arena was ploughed for three hours on the morning following the incident. While the majority acknowledged this evidence could not be used to assess with hindsight what would have a been a reasonable response by the Association, it could be inferred from the time it took to plough the ground that there was significant deterioration. Unlike the minority (Kiefel CJ and Keane J), the majority was satisfied there was sufficient basis to find there was deterioration of the ground.
Accordingly, the majority held that the Association breached its duty of care by not stopping the competition to inspect the ground to satisfy themselves it was “reasonably safe.”
Characterising the risk
The High Court provided the following guidance with respect to assessing the risk under s5L:
- s 5L should usually be assessed after prima facie liability in negligence is established, criticising recent practice suggesting the availability of the statutory defence should be determined first.
- The characterisation of the risk in s 5L should be at the same level of generality as the characterisation of the risk for the purposes of determining breach of duty and causation.
- The characterisation of the risk must include the “general casual mechanism of the injury sustained” which “gave rise to the potential for the harm which the plaintiff seeks“.
- It is unnecessary for the defendant to descend into “precise detail” of the mechanism by which the injury was sustained.
The majority disagreed with the trial judge’s characterisation of the risk in this case as the “risk of falling and being injured” or alternatively, the risk “that the horse would fall and as a consequence of that, [Ms Tapp] would fall and be injured“. The majority considered this characterisation was too broad and instead characterised the relevant risk in this case as 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“. Identifying the way in which the surface had deteriorated was not required.
Would the risk have been obvious to a reasonable person in Ms Tapp’s position?
The majority held the relevant risk would not have been obvious to a reasonable person in Ms Tapp’s position because:
- Ms Tapp was unable to inspect the ground of the arena prior to competing (she had been able to inspect it only before the competition commenced).
- Ms Tapp did not observe any falls, nor was she aware of any falls prior to her competing. Her father and sister had competed earlier without issue.
- Ms Tapp would have relied upon the assessment of the Committee or the Committee or the Members Representative Council of the organising body (MRC), which made decisions regarding the condition and maintenance of the ground surface.
- Although Ms Tapp was experienced in camp drafting, she was only 19 years old at the time of the incident and thus would have been less attuned to the risks.
In light of the above, the majority found the defence in s 5L was not enlivened.
Significance of Decision
Whilst the decision will likely encourage potential claimants who have been injured when participating in a dangerous recreational activity, it is important to note that the High Court in fact confirmed the approach of Leeming J of the NSWCA in Menz v Wagga Wagga Show Society concerning the correct approach to characterisation of the obviousness of the risk that materialised.
The High Court confirmed that when characterising the risk, consideration must be given to whether the particular risk would have been obvious to a reasonable person in the position of the claimant, and based on the particular facts of this case, and applying that test to Ms Tapp, the High Court held that the deterioration of the arena surface would not have been obvious to her having regard to her age, inability to inspect the arena, her absence of awareness of the previous falls, and entitlement to rely on the assessment of the MRC.
The High Court otherwise held that the correct approach is to first assess duty of care, breach and causation, and that general approach must then be applied to the characterisation of the obviousness of the risk, providing clarity on these issues in light of many contradictory recent judgments.
Finally, and importantly, the dissenting judgment contained no comment on the operation and application of s 5L. Accordingly, it will be difficult for lower courts to argue a contrary position to the majority’s judgment on the characterisation of risk, obvious risk and the operation and application s 5L and other statutory defences relying upon the characterisation of obvious risk.
