NSW Court of Appeal finds community sports association not liable for obvious risk of a dangerous recreational activity

By Rachael Arnold and Holly Turner

The NSW Court of Appeal has dismissed an appeal from Emily Tapp (Tapp) who suffered catastrophic injuries^[1] while competing in a campdraft competition organised by a not-for-profit community sports association, the Australian Bushmen’s Campdraft & Rodeo Association (Association).

The decision, handed down last Friday, 23 October 2020, provides important guidance to sporting not-for-profit associations/organisers and their insurers on how to define risk and whether it was foreseeable. This has been a long-running case, with the injuries sustained on 8 January 2011 and proceedings commenced 2 August 2012.

Background facts

Campdrafting is a sport involving a horse and rider working cattle at high speed around a course which has pegs. Tapp, at age 19, was an experienced rider and competitor.

Prior to the incident, after a number of rider falls, the Association carried out an inspection of the grounds and determined that it was safe for the competition to continue.

Tapp described that during her competition, as she came to do the figure 8, she felt the ground was ‘heavy’ and that her horse failed to get a proper stride. The horse’s front legs slid, and they both fell.

Tapp sued the Association in the Supreme Court of NSW^[2]. Tapp alleged the Association had breached its duty of care and that a reasonable person in its position would have ploughed the ground prior to the competition, stopped the competition prior to her fall, and warned competitors that the ground was unsafe.

Tapp failed on the evidence to establish why her horse fell. While it was clear that the horse slipped, there was no evidence that this was caused by the ground condition.

Her Honour found in favour of the Association and held that it did not breach its duty of care to Tapp. Her Honour also concluded that her injury was a result of the materialisation of an obvious risk of a dangerous recreational activity and therefore the Association could rely on Section 5L of the Civil Liability Act 2002 (NSW) (CLA) as a complete defence. Further, Her Honour also found that the Association was afforded protection by the volunteer defence (Section 61 of the CLA).

Appeal

Tapp appealed, and her case was dismissed with costs by Payne JA and Basten JA (McCallum JA dissenting).

The key issues were:

• Did the Association breach its duty of care?
• Was the injury suffered by Tapp a result of the materialisation of an obvious risk of a dangerous recreational activity?
• Could the Association rely on the volunteer's defence?

Breach of duty

In contrast with the approach taken by Leeming JA in Good v Angland, it was concluded that in this case it was appropriate to deal with the question of breach at the outset.

As Tapp did not establish that the cause of her fall was the deterioration of the surface of the arena, or that the surface of the arena was unsafe, she could not establish that the exercise of reasonable care in all the circumstances required the ground to be ploughed, the event to be stopped, and/or a warning given that the ground had become unsafe. Accordingly, Payne JA found that the Association did not breach its duty of care.

Defining the risk

There was no doubt that the campdrafting event was a dangerous recreational activity. The question was whether the risk that materialised was obvious to Tapp.

Following recent decisions in Singh^[3] and Menz^[4], much of the Court’s focus was the characterisation of the risk of injury.

Her Honour formulated the relevant risk as ‘the risk of falling from the horse and suffering an injury whilst competing in a campdraft competition, given the complexities and risks inherent in and associated with that activity’.

Tapp formulated the relevant risk as ‘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’.

Payne JA held that Tapp’s formulation was inconsistent with the approach in Singh, where it was concluded that the obvious risk needs to specified with a degree of generality, but also sufficiently precise so as to capture the harm which resulted from its materialisation.

Although Tapp’s formulation referred to the state of the arena, it failed to identify the nature of the deterioration which led to the risk of a fall. If the deterioration of the surface was to be part of the identification of the risk, then the nature of the deterioration also needed to be part of that formulation.

However, Payne JA concluded that even if Tapp’s formulation of the risk was correct, this was the materialisation of an obvious risk of a dangerous recreational activity and so the Association could rely on the ‘liability-defeating’ Section 5L defence. It was concluded that the fact that the surface had deteriorated after over 700 rides as part of the competition would have been obvious to a person in the position of Tapp, an experienced rider who had been present for much of the competition.

Volunteer's defence

While it did not affect the ultimate outcome of the Appeal, all three justices concluded Her Honour erred in finding that the Association could rely on the volunteer's defence.

The liability of the Association was alleged to be direct, rather than vicarious, and so only the volunteers themselves (if personally sued) could benefit from the immunity in Section 61. On reading Part 9 of the CLA as a whole, Payne JA concluded that ‘volunteer’ can only be a natural person, and therefore the Association could not rely on it to defeat allegations of direct negligence, even though the work was carried out by volunteers.

Commentary

For the purpose of determining obviousness, it is naturally in the plaintiff’s interests to define the risk narrowly, and the defendant’s interests to take a broad approach. This case provides further guidance on how to appropriately define the risk to determine whether it was foreseeable, not insignificant, obvious and/or inherent.

While sporting not-for-profit associations/organisers and their insurers should be comforted by the outcome of this case, it also clarifies that the volunteer's defence will not provide protection for the association's negligence.

[1] Tapp suffered a severe spinal injury, namely incomplete T11 paraplegia, and quantum was agreed in the sum of $6,750,000.
[2] View our case summary here: ‘Community sports organisation defeats claim for negligent preparation of campdraft arena’.
[3] Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152.
[4] Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65.