On 28 September 2012, the plaintiff, Kerrie Menz (plaintiff), was riding her horse (‘Sonny’) in a warm-up area of the Wagga Wagga Showground (showground). A group of children nearby made contact with a metal sign on the fence, which caused a loud noise. This noise startled another horse ‘Banjo’, which in turn spooked Sonny. Sonny faltered and fell onto his right side while the plaintiff was still in the saddle.
The plaintiff commenced proceedings in the NSW Supreme Court against Wagga Wagga Show Society Inc (defendant) in its capacity as the organizer of the agricultural show held at the showground. The plaintiff argued that her incident was caused by the negligence of, and/or the breach of contract by, the defendant.
The defendant relied on statutory defences available to it pursuant to the Civil Liability Act 2002 (CLA).
Dangerous recreational activity
Justice Bellew accepted that horse riding constitutes a dangerous recreational activity. His Honour accepted that the risk of injury arising from a horse being spooked is a risk that is constantly present, regardless of whether the horse is being ridden in a warm-up exercise or in competition. When considering whether the risk of the dangerous recreational activity was an obvious one, his Honour determined that the fact that the noise created by the children, which caused Banjo to spook, was external to the plaintiff’s activity of riding Sonny did not mean that the risk was not obvious.
Obvious and inherent risks
His Honour determined that the correct risk is the risk that a horse might be spooked, causing the rider of that horse, or another horse, to fall or a horse itself to fall. His Honour found this risk would have been obvious to a reasonable person in the plaintiff’s position and accordingly, held that there was no duty on the defendant to warn of the obvious risk.
Evidence led at trial identified many and varied reasons for a horse to be spooked. The stimulae was so wide-ranging, it meant the identified risk could not have been avoided by reasonable care and skill.
His Honour further accepted a risk warning signed by the plaintiff identified and warned of the general nature of that particular risk which ultimately caused the plaintiff’s incident.
Australian Consumer Law
The plaintiff relied on section 60 of the Competition and Consumer Act 2010 (CCA) which implies, into the contract to compete in events at the showground, a guarantee on the part of the defendant that the services provided would be rendered with due care and skill. His Honour found that the plaintiff could not rely upon the provisions of the Australian Consumer Law (ACL) to circumvent the operation of those sections of the CLA upon which the defendant relied.
In relation to section 5N of the CLA, his Honour found that although it was not picked up by section 275 of the ACL, such that the risk warning could not operate as a waiver, section 139A of the CCA nevertheless applied and liability is excluded.
Common law duty of care
His Honour was not satisfied that a reasonable person in the defendant’s position would have taken the precautions as suggested (i.e. placing marshals in and around the area to control the children). This was because his Honour accepted that a range of stimulae would cause an unpredictable horse to react (including something as simple as a piece of paper blowing across the ground), so much so that the burden on taking precautions to avoid the risk of harm was significant.
The case follows previous decisions identifying horse riding as a dangerous recreational activity. The unpredictable nature of horses (and animals in general) means that the risk of serious injury arising from any activity involving horses is one that should be classified as an obvious one.
The case should give sporting organisations, particularly those involved with horses, and their insurers comfort in their ability to rely on the statutory defences available to them in the CLA to defeat personal injury claims in certain circumstances.