High Court finds community sports organisation liable to Emily Tapp

By Rachael Arnold and Holly Turner

The High Court has overturned a decision from the NSW Court of Appeal and allowed an appeal by Emily Tapp who suffered catastrophic injuries on 8 January 2011 while competing in a campdraft competition organised by the Australian Bushmen’s Campdraft & Rodeo Association.

Ms Tapp has been awarded $6.75 million^[1] plus costs.

The incident facts and judicial history have been summarised in our previous case alerts:

• first instance; and
• appeal.

High Court decision

On 6 April 2022, the minority (Chief Justice Kiefel and Justice Keane) dismissed Ms Tapp’s appeal, while the majority (Justices Gordon, Edelman and Gleeson) found in her favour.

There were three issues for consideration:

1. whether the Association breached its duty of care to Ms Tapp;^[2]
2. whether that breach of duty caused Ms Tapp’s injuries;^[3] and
3. whether the Association was not liable in negligence because Ms Tapp’s injuries were the result of ‘the materialisation of an obvious risk of a dangerous recreational activity’.^[4]

The risk

In characterising the risk with the appropriate level of generality, the majority found it was 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’.^[5]

This did not require Ms Tapp to identify the way in which the arena surface had deteriorated.

Breach of duty of care

The majority found that the relevant risk (outlined above) was substantially elevated by virtue of the four ‘bad falls’ that had occurred (in circumstances where falls at campdrafting events are rare and are a ‘signal’ that the surface of the arena needed attention^[6]) and the two warnings provided during the competition by an experienced campdrafter, Mr Stanton. The majority also inferred the apparentness of the deterioration from evidence that the ground was disc-ploughed for three hours on the morning after the incident, after which there were no further falls.

The majority found 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 [Organising] Committee or [Members Representative Council (MRC) of the organising body] had taken precautions, beginning with inspecting the arena to be satisfied that the ground of the arena was reasonably safe’.^[7]

The majority concluded that the Association breached its duty of care by failing to stop the event in order to inspect the ground of the arena and to consider its safety when the Association knew of substantially elevated risks of physical injury to the competitors.

Causation

The majority did not accept the Association’s submission that there was insufficient evidence of the deterioration of the ground, and found that the inference to be drawn was that the condition of the ground was the cause of Ms Tapp’s fall.

Obvious risk

The majority found that the risk as defined would not have been obvious to a reasonable person in the position of Tapp because:

1. she did not have the opportunity to examine the condition of the ground;
2. a reasonable person in her position would not have been concerned about the condition of the ground, as her father and sister successfully competed that day without incident, and she was not aware that other falls had occurred during the event;
3. she would have relied on the Committee or MRC to assess the quality of the surface, as the entities charged with that responsibility under Rule 5 of the Association’s campdraft Rule Book; and
4. as she was a teenager and less likely to be attuned to risks, a reasonable person her age would be unlikely to turn their mind to the appearance of the arena surface, and instead assume the Committee or MRC had made the appropriate decision.

Therefore, it was found that section 5L did not operate to preclude the liability of the Association.

Conclusion

The outcome should not discourage not-for-profits and community groups from running sporting and recreational activities/events. The outcome was very dependent on the particular facts and evidence. Briefly, some takeaway points are as follows.

• Event organisers owe a duty of care to participants to organise, manage and provide events with reasonable care and skill.
• If an accident occurs during an event, organisers should objectively consider why the accident occurred, and then take precautions which are reasonable to avoid further accidents, particularly where these measures are simple, manageable, and have the potential to prevent serious harm.
• Event organisers should keep a thorough record of safety measures in place. If safety issues are raised, or an accident occurs, event organisers should consider any reasonable precautions to prevent injury and record the justification for any decisions made.
• Any mass communication to event participants regarding safety issues should identify the issue, and consideration should be given to ensuring it is received by all participants.

This article was written with the assistance of Jessica Raupach, Law Graduate.

[1] Agreed damages.
[2] Section 5B of the Civil Liability Act 2002 (NSW) (Act).
[3] Section 5D of the Act.
[4] Section 5L of the Act.
[5] Tapp at [125].
[6] Tapp at [131].
[7] Tapp at [127].