October 30, 2020
Tapp v Australian BushmEn’s Campdraft & Rodeo Association LTD  NSWCA 263
The New South Wales Court of Appeal has delivered judgment in another case involving the application of the obvious risk and dangerous recreational activities provisions of the NSW Civil Liability Act.
In tragic circumstances, the Plaintiff (a young woman of 19) sustained spinal injuries when she fell from her horse whilst participating in a campdraft event in rural NSW. Campdrafting is a competition whereby riders on horseback demonstrate their skills in herding cattle on horseback around obstacles in an arena in a set time. Scores are based on horsemanship and control of the cattle.
The Plaintiff’s case against the Defendant (the organiser of the competition) was that the ground in the campdraft arena was unsafe and her horse had fallen because its front legs slipped as a result of the ground having deteriorated over the course of the event.
The NSW Supreme Court Decision
At first instance the Plaintiff was unsuccessful with the trial judge dismissing the claim on the basis that, inter alia:-
- she had not established that the Defendant had breached its duty of care; and
- the risk of the Plaintiff falling from her horse whilst participating in a campdraft was the materialisation of an obvious risk of a dangerous recreational activity.
The trial judge was also critical of the Plaintiff’s failure to plead and produce any evidence as to why and how the ground in the arena had deteriorated and how that had caused the horse to slip.
The Appeal Decision
The majority dismissed the Plaintiff’s appeal (Payne JA and Basten JA with McCallum JA dissenting). As to breach, the majority found that:-
- the Appellant had never clearly identified the way that the surface had allegedly deteriorated;
- she had been inconsistent in her argument about why the horse had slipped- reminiscent of ‘Goldilocks’, the Plaintiff had said on one part that the ground was ‘too soft’ but had also that it was ‘too rough’ and broken up when it should have been smooth;
- there were a number of other reasons why a horse in campdrafting could slip – namely the speed of the horse and the complexity of its manoeuvres;
- concessions extracted from the Defendant’s primary witness during cross examination at trial were not determinative of breach as they were concessions made in hindsight;
- the Defendant was not in breach simply because there had been prior falls at the event that day and it was noted that there was no evidence that those other falls had been caused by the condition of the arena.
The majority also agreed with the trial judge regarding the application of the dangerous recreational activity defence. The judgment contains a very detailed and useful discussion about how an obvious risk is formulated and endorses the recent NSW Court of Appeal decision of Menz v Wagga Wagga Show Society Inc in that a high degree of particularity of the risk is undesirable and generality is preferred. Again, this demonstrates how defining an obvious risk can be akin to ‘threading a needle’.
The Court said that if the Plaintiff was correct in that her horse had fallen because the ground had deteriorated then that was obvious because there had been so many people riding on it prior to her fall such that the risk of a horse slipping because the ground had deteriorated over time due to regular use at the competition was obvious.
In another demonstration that reasonable minds can differ in terms of the application of the dangerous recreational activity provisions in the various Civil Liability Acts, McCallum JA in dissent considered that the nature of the risk identified by the trial judge in terms of falling from a horse whilst participating in camp draft was too broad and not specific enough. As McCallum JA had found that the Defendant had breached its duty of care by failing to keep the ground in a good condition, he rejected the proposition that the Plaintiff being injured as a result of the ground was an obvious risk in the circumstances.
There was no dispute in the appeal that a camp draft activity was a dangerous recreational activity.
The decision provides further useful guidance in when a court will accept that a risk is obvious- the trend in recent times seems to be that the broader a risk of injury can be characterised, the more likely it is to be obvious. It follows then that the more specific a risk is, the less likely it is to be obvious. It is also a reminder of the need for plaintiffs to be able to properly plead the factual basis of their claim in negligence and that it is not simply enough to argue that the result justifies the means, even if the injuries are significant.
As with all cases involving obvious risk and dangerous recreational activities, the application of those provisions in this decision is very fact specific and careful consideration should be given by insurers, brokers and their clients about what the risk is and how the court will approach it. Often at first glance an obvious risk will be perceived as just that, but careful consideration must occur before embarking on a defence.
 The trial judge also held that the Respondent was a ‘volunteer’ within the meaning of the CLA NSW and therefore the volunteer defence in s61 CLA applied but that is not the focus of this article. It should be noted that was overturned on the Appeal with the Court of Appeal holding that a volunteer for the purposes of s61 can only be a natural person.
 Menz v Wagga Wagga Show Society Inc  NSWCA 65.
 The Court of Appeal noted that there were difficulties in terms of defining the risk because the Plaintiff had not pleaded or proven exactly how the ground had deteriorated.