David Jackson QC and Dominic Villa SC (with Jennifer Hillier) have succeeded in persuading the High Court of Australia to allow an appeal from a judgment of the NSW Court of Appeal in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2022] HCA 11.
The appellant, Ms Tapp, was an experienced and very able horse rider and campdraft contestant. On 8 January 2011 she competed in a multi-day campdrafting event organised by the respondent. In the space of about 45 minutes in the late afternoon of 8 January 2011, four other contestants had “bad falls” while competing. An experienced campdrafter approached event organisers and said that the competition should be stopped because the ground was becoming slippery and was “unsafe”. The organisers delayed the competition to discuss the conditions, but decided to continue. Shortly thereafter, Ms Tapp competed and fell when her horse slipped on the ground of the arena. She suffered a serious spinal injury.
The appeal concerned whether the respondent breached its duty of care, whether that breach caused the appellant’s injuries, and whether the harm was the result of the materialisation of an obvious risk of a dangerous recreational activity.
The Supreme Court of New South Wales (Lonergan J) held that the respondent had not breached its duty, that any breach had not caused Ms Tapp’s injuries, and that Ms Tapp’s injuries were the result of the materialisation of an obvious risk of a dangerous recreational activity. A majority of the Court of Appeal dismissed Ms Tapp’s appeal.
In the High Court, a majority (Gordon, Edelman and Gleeson JJ) allowed Ms Tapp’s appeal, holding that the respondent breached its duty of care in failing to stop the event until the relevant officers of the respondent inspected the arena and were satisfied that the surface was reasonably safe (in the sense that the risk of injury from falling from a horse that slipped on the ground of the arena was not substantially elevated). The majority also held that the breach of duty caused Ms Tapp’s injuries. Finally, the majority held that Ms Tapp’s injuries were not the result of the materialisation of an obvious risk of a dangerous recreational activity, and the statutory defence under s 5L of the Civil Liability Act 2002 was not made out.
The majority made the following important observations in relation to the operation of the statutory defence under s 5L.
- First, contrary to the views expressed in earlier decision in the New South Wales Court of Appeal (notably in the present context the judgment in Goode v Angland (2017) 96 NSWLR 503 at [5], [177], 185) the “risk” with which s 5L is concerned should ordinarily be assessed after a determination that there is prima facie liability for negligence.
- Secondly, the “risk” for the purposes of s 5L should be characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached a duty of care for the purposes of s 5B, and in assessing causation for the purposes of s 5D.
- Thirdly, the characterisation of the risk must include the “general causal mechanism of the injury sustained” which “gave rise to the potential for the harm for which the plaintiff seeks damages”“.
- Fourthly, just as it is unnecessary in the characterisation of risk for the purposes of assessing a breach of the duty of care for the plaintiff to show the reasonable foreseeability of the “precise manner in which [the] injuries were sustained”, for the purposes of s 5L it is unnecessary for the defendant to show the precise manner in which the injuries were sustained for the purpose of characterising the risk.
In the present case, the majority held that the descriptions of the risk applied by the trial judge, namely “the risk of falling and being injured” or, alternatively, the risk “that the horse would fall and as a consequence of that, [Ms Tapp] would fall and be injured” were at too high a level of generality. The correct characterisation of the risk 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.” That was a risk that would not have been obvious to a competitor in the position of Ms Tapp.
