NSWCA rounds-up another rodeo win for the obvious risk defence

In another victory for the obvious risk defence, the Court of Appeal delivers a judgment that highlights the importance of correctly formulating the risk of harm when distinguishing between foreseeable and obvious risk.

Author: Renee Magee
Judgment date: 23 October 2020
Citation: Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263
Jurisdiction: NSW Court of Appeal

Principles

• The broader a risk of harm can be characterised, the more likely the obvious risk defence will prevail
• The risk of harm must be characterised with enough particularity to include the source of potential injury (whether the risk is foreseeable) as well as the reason that injury occurred (whether the risk is obvious to a reasonable person in the plaintiff's position)
• Liability will attach where the kind of risk of harm that materialised was foreseeable to the recreational provider but not obvious to the participant.

Background

The plaintiff was an experienced rider competing in a campdraft event organised by the defendant when she fell from her horse and suffered severe injuries. She alleged her fall was caused by a deterioration in the arena's surface which the defendant knew to be slippery and unsafe.

The primary judge concluded the plaintiff was engaged in a dangerous recreational activity within the meaning of s 5L of the Civil Liability Act 2002 (NSW) and found the defendant had no reason to warn the plaintiff of the risk of falling from her horse whilst she was competing. The risks and inherent complexities involved in campdrafting – an activity that sees a rider manoeuvre cattle across a course – were obvious.

The primary issue on appeal was whether the defendant was in breach of its duty of care and if the risk of harm was indeed obvious.

Decision

In a 2-1 majority, the Court of Appeal upheld the primary judge's decision. It found the plaintiff failed to demonstrate precisely what had caused the surface to deteriorate, making it unclear what precautions the defendant should have taken. Whilst other competitors had fallen from their horses earlier in the day, it was not known if these were caused by the surface's condition or some other means. As the cause of the fall had not been properly identified, there was nothing to suggest the risk was foreseeable or that the defendant had breached its duty of care.

In relation to the obvious risk defence, the Court stated that even if the plaintiff had shown how the surface had deteriorated, it ought to have been obvious to a seasoned campdrafter that the ground would have worn away after other competitors had ridden through the arena, increasing the risk of a horse slipping and falling.

In a dissent judgment, McCallum JA considered there were various reasons why someone may fall off a horse that are unlikely to be obvious to a person in the plaintiff's position, particularly when the plaintiff was only nineteen at the time and less likely to be attuned to the risks involved. She thought there was sufficient evidence the defendant was aware the ground was unsafe and ought to have been found in breach of its duty of care.

Why this case is important

The decision follows a recent line of obvious risk cases where the Court of Appeal has adopted a broad interpretation of the obvious risk defence. Recreational providers should be reassured by the Courts reluctance to impose liability where it can be reasonably expected for participants to discern the risks of harm involved and bear their own responsibility. With that said, it is important providers and their insurers keep in mind this will not extend to circumstances where (without the benefit of hindsight) the kind of risk of harm was foreseeable to the provider but not obvious to the participant. In these cases, liability is likely to be imposed.