Thinking | 24 April 2020

There’s ‘no such thing as a bomb proof horse’

By Rachael Arnold, Mitchell Stein and Hilary Lee

In Menz v Wagga Wagga Show Society Inc[1] the NSW Court of Appeal has unanimously dismissed an appeal from a decision of the Supreme Court of New South Wales, which rejected a claim for negligence and breach of the Australian Consumer Law (ACL) brought by an equestrian who suffered personal injury.[2]

Facts

The Appellant was seriously injured in September 2012 when her horse was startled and then fell with the Appellant in the saddle.  The Appellant had been warming up for an event at a show in Wagga Wagga.  A loud clanging noise caused by children playing and making contact with a metal sign on a fence nearby had caused the horse to become startled.  The Appellant had signed an ‘Indemnity and Waiver’ form, which stated that it constituted a ‘risk warning’ for the purposes of the Civil Liability Act 2002 (NSW) (CLA).

Primary proceedings

The Appellant sued the Respondent in negligence and pursuant to the statutory guarantee imposed by section 60 of the ACL. The Respondent relied on a number of statutory defences under the CLA as well as denying breach of duty in respect of the claim in negligence, and also submitted that those statutory limitations of liability qualified the federal statutory guarantee.

The primary judge rejected the Appellant’s claims and concluded that her injury was the result of the materialisation of an obvious risk of a dangerous recreational activity, pursuant to section 5L of the CLA.  Additionally, Bellew J was not satisfied that the Appellant had demonstrated that the Respondent should have taken the reasonable precaution of stationing marshals near the warm-up area.

Court of Appeal

On appeal, the Appellant claimed that the primary judge had erred in finding that section 5L of the CLA applied to defeat her claim and that the Respondent had not breached its duty under section 5B of the CLA by failing to station marshals.

In his leading judgment, Leeming JA concluded that there were ‘basal and inescapable facts’ present in the litigation, which made it appropriate to characterise the harm suffered by the Appellant as ‘the materialisation of the obvious risk of her horse being spooked by some stimulus’.  The facts were:

  1. there is “no such thing as a bomb proof horse”
  2. at any time horses may be spooked by a noise, or a shadow, or some other stimulus
  3. 'a rider runs a risk of serious injury in the event that a horse is spooked and behaves unpredictably'

Therefore it was not necessary to particularise the risk further by saying that ‘the noise made by children spooked the horse.’

Furthermore, it was not sufficient to conclude that a reasonable person in the position of the Respondent would have taken a marshal or steward from somewhere else on the site (or found another volunteer if one could be found) and placed them near the vehicular entrance. Accordingly, the challenge to the common law claim was quickly dispensed with.

Commentary

This case should give sporting organisations, particularly those involved in equestrian and other horse sports, and their insurers, some comfort that the application of the obvious risk and dangerous recreational defences available under the CLA will be interpreted in a way which contemplates the inherent risk when riding a horse.

[1] [2020] NSWCA 65

Contact

Rachael Arnold

Rachael is a well-rounded and experienced insurance lawyer with a focus on general insurance and product liability.

Mitchell Stein

Insurance lawyer Mitchell experience includes public and product liability, professional indemnity and life insurance claims.

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