Breach of Duty Alleged Against Campdraft Competition Organizers

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022)

The appellant was competing in a campdraft competition where the appellant's horse slipped and fell causing serious injury to appellant.  It was contended that the respondent breached duty of care.  The Court, in adjudicating this dispute, assessed whether breach of duty of care caused appellant's injuries.

Facts:

On 8 January 2011, the appellant ("Ms Tapp") was injured while competing in a campdrafting event organised by the respondent, the Australian Bushmen's Campdraft & Rodeo Association Ltd ("the Association").  Ms Tapp's horse slipped, causing Ms Tapp to fall and suffer a serious spinal injury.  Ms Tapp brought an action in negligence for damages against the Association.  Ms Tapp's claim was dismissed by the primary judge (Lonergan J) and was upheld by a majority of the New South Wales Court of Appeal (Basten and Payne JJA, McCallum JA dissenting).

It was Ms Tapp's case that her horse fell because of deterioration in the surface of the arena leading up to her ride.  Ms Tapp alleged that the Association, by allowing the event to continue in these circumstances, breached its duty to Ms Tapp to take reasonable care for her safety.  The Association admitted that it owed Ms Tapp a duty of care to organise, manage and provide the campdrafting event with reasonable care and skill, but it denied that it had breached that duty.  The Association's Rule Book contains a reference to the surface being ploughed, in the context of a general requirement that the arena surface be safe. 

An incident report prepared by the Ellerston District Sports Club and dated 12 January 2011 ("the Incident Report") noted that the surface had been "renovated" at 7 am and 6 pm on Friday, 7 January 2011.  Mr Shorten, the Secretary of the Ellerston District Sports Club, in his evidence, stated that on the Friday evening, although he had not received any complaints and was not aware of any problems with the surface of the arena, he and several other organising members had decided to renovate the arena "just to keep it nice and soft and competitive".  There was evidence that, besides Mr Shorten, several other riders fell off their horses on Saturday, 8 January 2011. 

Prior to Ms Tapp's incident, two complaints were made by Mr Stanton, a competitor, about the surface of the arena.  On two occasions, competition was suspended while the members of the Association responsible for the conduct of the competition considered Mr Stanton's suggestion that the event be cancelled.  While Mr Stanton urged that course because the "ground [was] unsafe", that view was not shared by other participants who were in a position to make a responsible judgment.  To the contrary, the prevailing view was that competitors should "ride to the conditions".  Mr Shorten, Mr Young and Mr Smith agreed that an announcement would be made over the loudspeaker that any competitors who wished to withdraw from the event could do so and receive a full refund.

Issues:

I. Whether or not the respondent breached duty of care.

II. Whether or not the breach of duty of care caused appellant's injuries.

III. Whether or not the harm suffered by appellant is a result of materialisation of obvious risk of dangerous recreational activity.

Applicable law:

Civil Liability Act 2002 (NSW) s 5B - provides that a person is not negligent in failing to take precautions against a risk of harm unless--

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

Civil Liability Act 2002 (NSW) s 5D - provides that a determination that negligence caused particular harm comprises the following elements--

(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation" ), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability" ).

Civil Liability Act 2002 (NSW) s 5L - provides that a person ("the defendant" ) is not liable in negligence for harm suffered by another person ("the plaintiff" ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263  - where it was observed that "there is no doubt that it was established that immediately prior to [Ms Tapp's] horse falling its legs slid. What was left unproven was the reason for that slide."

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at 440 [43] - where the Court has recognised that the Act does not apply a test of "common sense". 

Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649 - where Dixon J found that the defendant's breach of duty, coupled with the occurrence of an accident of the kind that might thereby be caused, was enough to justify an inference that the breach caused the accident. 

Robinson Helicopter Co Inc v McDermott [2016] HCA 22 - relied upon in holding that the Court of Appeal had no sufficient basis for setting aside the findings of the primary judge.

New South Wales v Fahy [2007] HCA 20 - focused on how the particular injury happened may be misleading in attempting to determine issues of duty and its breach. 

Jones v Bartlett (2000) 205 CLR 166 - relied upon in holding that judgments of this Court is posed by hindsight reasoning – the failure to take account of the context in which a risk was to be evaluated at the time the evaluation was made. 

Fox v Percy [2003] HCA 22 - held that the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'.

Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637 - provides that 'natural limitations' that exist in the case of any appellate court proceeding include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share.

Travel Compensation Fund v Tambree [2005] HCA 69 - provides that "it is doubtful whether there is any 'common sense' notion of causation which can provide a useful, still less universal, legal norm".

Fallas v Mourlas [2006] NSWCA 32 - provides that division 5 of Pt 1A of the Civil Liability Act is concerned with "Recreational activities".  Within Div 5, s 5L expresses a defence, the onus of which lies on the defendant. 

Perisher Blue Pty Ltd v Nair‑Smith [2015] NSWCA 90 - provides that the enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages.

Analysis:

Mr Gallagher was a judge of the campdrafting event and Mr Callinan was the President of the Ellerston District Sports Club.  Neither Mr Gillis nor Mr Sadler suggested that the state of the surface of the arena had anything to do with their falls.  It may also be noted that there was evidence that Mr Young himself competed again on the arena surface after these discussions and immediately before Ms Tapp's injury.  The primary judge concluded that the Association was not liable for Ms Tapp's injuries on the basis that her injuries were the materialisation of an obvious risk of a dangerous recreational activity.  

In the Court of Appeal, his Honour concluded that Ms Tapp could not demonstrate that her horse fell because of deterioration in the surface of the arena, as distinct from some other cause.  However, McCallum JA held that the primary judge ought to have found that the Association breached its duty by failing to suspend the competition at the very latest when the announcement was made, but probably earlier.  At trial, Ms Tapp had sought to establish specific reasons for inferring that the surface of the arena had deteriorated to the point where it was unsafe, and this attempt failed.  The failure of an attempt to establish by expert evidence specific identified defects in the surface of the arena does not negate, as a matter of strict logic, the possibility that there was some other, unidentified defect in the surface of the arena that contributed to Ms Tapp's fall.

The risk of a horse slipping as a result of losing its footing during a manoeuvre performed at speed is part and parcel of competitive campdrafting on even the most benign of surfaces.  The information available to the Association at the time the competition was suspended included statements from Mr Shorten and Mr Gillis, each of whom blamed his own management of his horse for his fall.  None of the information on which the Association's decision‑makers acted suggested that deterioration in the surface was the cause of those falls. 

Conclusion:

The appeal is allowed with costs.  The Court sets aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 23 October 2020 and, in their place, order that:

(a) the appeal be allowed with costs; and

(b) the orders made by the Supreme Court of New South Wales on 4 November 2019 be set aside and, in their place, it be ordered that:

(i) there be verdict and judgment for the plaintiff in the agreed amount of $6,750,000; and

(ii) the defendant pays the plaintiff's costs.

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