Was the harm the result of the materialisation of an obvious risk of a dangerous recreational activity?
In the recent decision in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited  HCA 11, the High Court of Australia, by a majority 3:2, had overturned the NSW Court of Appeal’s findings and held that the organiser of an equine campdrafting event breached its duty of care to one of the riders causing her to suffer injuries, with the harm suffered by the rider was not the result of the materialisation of an obvious risk of a dangerous recreational activity.
Ms Tapp, then 19 years old, suffered serious spinal injuries when she fell from her horse after it slipped whilst competing in a campdrafting event organised by the Australian Bushmen’s Campdraft and Rodeo Association Limited (Association).
Three other contestants had fallen whilst competing prior to Ms Tapp’s fall. An experienced campdrafter had approached a member of the Association after the third fall to suggest that the competition be stopped because the ground had deteriorated.
After discussing the ground conditions and speaking with two of the contestants who had fallen, the Association determined to continue the competition. There was a further fall and the same experienced campdrafter again approached the Association to assert that the ground was unsafe. The Association delayed the competition to discuss the conditions, but again decided to continue. Ms Tapp then fell.
Ms Tapp commenced proceedings against the Association for her injuries, alleging that:
- the Association owed her a duty of care against the risk of a rider being injured due to his or her mount losing its footing because of the condition of the surface of the arena;
- the Association had breached its duty of care by allowing the event to continue; and
- such breach was causative of her injuries given her horse fell because of the deterioration in the surface of the arena.
The Association denied breach of duty on the basis it had made an informed decision to allow the event to continue; that Ms Tapp had not established causation or why her horse had fallen;, and that the Association was not otherwise liable as the risk of harm was an obvious risk of participating in a dangerous recreational activity in accordance with section 5L of the Civil Liability Act 2002 (NSW). That section provides:
No liability for harm suffered from obvious risks of dangerous recreational activities
(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.
Ms Tapp argued that the relevant risk of harm for the purposes of establishing negligence pursuant to section 5B of the CLA was that “a rider might be injured because his or her mount lost its footing because of the condition of the surface of the arena”.
The Primary Judge did not make a clear determination of the relevant risk of harm for section 5B, but found that Ms Tapp had not proved a breach of duty of care or causation, and otherwise upheld the defence under section 5L, that the Association could not be negligent because the risks that manifested in Ms Tapp’s injuries were obvious. Ms Tapp appealed.
Dismissing the appeal, by majority, the NSW Court of Appeal found that, without clear evidence as to the nature of the risk posed by the surface of the arena where Ms Tapp’s horse fell, it was not possible to identify the cause of the fall, or the risk of harm against which the Association should reasonably have taken precaution.
The Court held that, although there may be no “single correct requirement” of an obvious risk, it is in principle to be specified with a degree of generality. Payne JA stated that both the Association’s formulation of the risk of harm (“the appellant’s horse falling in the course of the campdrafting competition”) and Ms Tapp’s formulation of the risk of harm (“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”), were obvious risks, with Ms Tapp’s injury the manifestation of such risks.
Ms Tapp was granted special leave to appeal to the High Court of Australia.
High Court Decision
By majority (Edelman, Gordon and Gleeson JJ), the High Court overturned the NSW Court of Appeal’s decision.
- upheld Ms Tapp’s formulation of the risk of harm for the purposes of section 5B, 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.
- held that the Association breached its duty of care by failing to stop the competition in order to inspect the ground and to make “an informed decision … as to whether it was safe to continue with the competition” in response to the risk of harm. Neither the primary judge’s findings nor the evidence supported a finding that the competition arena was inspected at that time or at any time during the event.
- found that the failure to stop the event was a necessary condition of the harm, satisfying factual causation pursuant to section 5D(1)(a) of the CLA.
As a procedural matter, the High Court stated that Courts should make findings as to breach of duty and causation before making any determination under section 5L, as that section contained a “liability defeating rule”, which will only operate if liability has been made out.
Consistent with this, the minority (Kiefel CJ and Keane J) concluded that the principal flaw in Ms Tapp’s case was that she had failed to prove why her horse fell and, as such, the Association did not breach its duty of care to Ms Tapp and causation had not been made out, meaning that it was unnecessary to consider the application of section 5L.
However, given their determination on breach and causation, the majority went on to assess section 5L.
Section 5L of the CLA – ‘dangerous recreational activity’
There was no dispute in the NSW Court of Appeal or in the High Court that Ms Tapp had engaged in a dangerous recreational activity. In issue was whether there was a risk of that activity that was obvious that materialised.
Characterisation of the risk of harm
The majority determined four significant matters that must guide the reasoning process in characterising an obvious risk:
- as above, the “risk” with which section 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence;
- the section 5L risk should be characterised at the same level of generality as the risk is characterised in the course of assessing whether a defendant has breached a duty of care pursuant to section 5B of the CLA;
- the generality at which the risk in section 5L is stated should include the same facts as established the risk for the purposes of the breach of duty which caused the harm to a plaintiff, but no more; and
- the characterisation of the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty.
Consistent with identification of the risk of harm for section 5B, the majority held that the risk of harm for the purposes of section 5L should be characterised 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.
The majority found that there were three reasons which, in combination, precluded any conclusion that the risk of harm would have been obvious to a reasonable person in Ms Tapp’s position:
- Unlike the Association, as organiser of the competition, Ms Tapp did not have the opportunity to examine the condition of the ground at all, and particularly not in the hour before she competed, during which the other four falls occurred.
- A reasonable person in Ms Tapp’s position would not have had any concerns about the condition of the ground from observations of other contestants or information about other contestants.
- A reasonable person in the position of Ms Tapp, who was preparing herself and her horse to compete in the hour before being called, would have relied upon the Association’s Committee for that assessment. Ms Tapp’s age reinforced the point that a reasonable person in her position would be unlikely to pause, while waiting for her run in a high-turnover event, to reflect upon the appearance of the surface of the arena.
This decision significantly impacts the assessment of an obvious risk for the purpose of section 5L.
Prior to this decision, the NSW Court of Appeal had taken a broad approach in the formulation of the characterisation of the obvious risk. This assisted the operation of a section 5L defence, as the broader the formulation of an obvious risk, the more likely the risk will be obvious to satisfy the provisions of section 5L, which led to many dangerous recreational defences being successful. The High Court has now indicated that the characterisation of an obvious risk pursuant to section 5L of the CLA should be assessed at the same generality of the risk of harm for the purposes of s5B of the CLA.
This, in turn, will likely bring an increase in claims in the dangerous recreational activity space, where plaintiffs are likely to formulate a risk of harm at a higher level of specificity, making it easier for plaintiffs to argue that the risk of harm that materialised was not an obvious risk of a dangerous recreational activity.