Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11

A recent High Court decision has significant ramifications for organisers of recreational activities. Various legislation around Australia excludes civil liability for activities involving obvious risk.  Generally speaking, in order for the “obvious risk” exception to materialise, the harm needs to be caused directly by the obvious risk. In this case, the appellant’s injury was found not to have been caused by her participation in an activity involving obvious risk but, rather, the dangerous conditions in which she was required to participate.  These were found not to constitute an obvious risk to a reasonable person.

The appellant, Ms Tapp, was a 19-year-old but experienced campdraft competitor. On 8 January 2011, she competed in a campdrafting event organised by the respondent (“the Association”). That afternoon, three other experienced contestants fell whilst competing after their horses slipped on the arena surface. Another experienced participant, Mr Stanton, approached event organisers and told them the competition should come to a halt because the ground was too slippery to compete on. The event organisers ignored the warning and the competition continued. After a fourth fall, Mr Stanton approached the event organisers again and told them he thought the ground was “unsafe” and should therefore not be used at all. The competition was temporarily delayed for event organisers to discuss the situation, but they ultimately decided to continue with the event.

Ms Tapp competed later that afternoon. Her horse slipped on the arena ground, she fell and suffered a serious spinal injury .

Originally, the Supreme Court of New South Wales held the Association had not breached its duty, that any breach was not causally linked to Ms Tapp’s injuries but, rather, the injuries were the result of the “materialisation of an obvious risk of a dangerous recreational activity”.^[1] Ms Tapp’s appeal was dismissed by the New South Wales Court of Appeal.

The issues on appeal to the High Court were whether the Association had breached its duty of care, whether the purported breach caused Ms Tapp’s injuries and whether the harm was the result of an obvious risk of a dangerous recreational activity.

The High Court considered the meaning of “risk” in s 5L of the Civil Liability Act 2002 (NSW) . This section is equivalent to s 16 of the Civil Liability Act 2003 (Qld), entitled ‘no liability for materialisation of inherent risk’.

The High Court:

1. confirmed the characterisation of the “risk” should be assessed after negligence has been established;
2. the characterisation of the “risk” at the appropriate level of generality must include the “general causal mechanism of the injury sustained”,^[2] which “gave rise to the potential for the harm for which the plaintiff seeks damages”;^[3] and
3. the plaintiff is not required to show the “precise manner in which the injuries were sustained was reasonably foreseeable”.^[4]

The minority judgment rejected an argument by Ms Tapp that a “common sense” approach should be taken to determining the cause of the fall and, in doing so, took into consideration:

1. the Civil Liability Act 2002 (NSW) does not require a “common sense” test;
2. Ms Tapp’s argument that the Court should find that her horse slipped because of the arena surface is “an attempt to make a virtue of necessity”;^[5]
3. the inherently dangerous risks that come with campdrafting;
4. the numerous falls prior to Ms Tapp’s fall, two of whom blamed their own skill for the fall rather than the slippery arena surface; and
5. the decision of the Association to put the competition on hold and plough the arena surface could not be relied on to determine the slipperiness of the arena surface at the time of Ms Tapp’s fall.

The majority judgment of the High Court focussed on the characterisation of the risk, considering that “Ms Tapp falling from her horse slipping” was too broad a characterisation. Rather, the proper, and far narrower characterisation, would be “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”. The majority found that, even if the risk had been correctly characterised, this still would not have been obvious to a competitor in the position of Ms Tapp.

The High Court held a reasonable person in the position of the Association ought to have taken the precaution of stopping the event altogether in response to the elevated risk of competitors being harmed by falling from horses slipping on the arena surface.

The appeal was allowed on the grounds that:

1. the Association breached its duty of care in not stopping the event; and
2. this breach caused the appellant’s injuries.

The High Court set aside the judgment of the New South Wales Court of Appeal and found in favour of Ms Tapp for damages agreed at $6,750,000.00 plus costs.