The complete defence of obvious risk: what's a spooked horse to do?
Originally Published by Peter Ford and Renee Magee on Thursday, May 14, 2020 8:48:48 AM
When is an obvious risk no longer obvious? How far should a definition of risk of harm go? Find out what the Court of Appeal decides in Menz v Wagga Wagga Show Society Inc.
Author: Renee Magee
Judgment date: 21 April 2020
Citation: Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
Jurisdiction: NSW Court of Appeal
The plaintiff was riding her horse whilst warming up for a competition organised by the Wagga Wagga Show Society when the horse became startled by noise caused by children nearby and fell.
The trial judge found the Wagga Wagga Show Society was not negligent by operation of s 5L of the Civil Liability Act 2005 (NSW) (CLA). The plaintiff's injuries had materialised as a result of her horse being spooked which constituted an obvious risk incurred during a dangerous recreational activity.
The principal consideration on appeal was whether the Court had erred in characterising the risk of harm as 'obvious'. The plaintiff argued the risk of injury caused by a horse falling after being spooked by children creating noise was not obvious under the CLA. Additionally, the act of warming-up before a horse riding competition deprived the activity of being 'dangerous', and therefore the defence should not apply.
The Court of Appeal upheld the trial judge’s decision and found the statutory defence of obvious risk did apply.
In dismissing the appeal, Leeming JA reasoned it was unnecessary to distil the risk of harm further by specifying precisely what caused the horse to startle. Additional facts should only be added where they materially alter the mechanism by which the harm was sustained. In this case, the risk of harm was falling off the horse. It was not necessary to descend to the level of detail by referring to the children's actions as this did not mischaracterise the way the harm occurred. It was obvious the horse could have been spooked by any manner of stimuli at any time. The rider is still exposed to a risk of injury irrespective of whether children were making noise by banging on a nearby metal gate.
The argument that the plaintiff was not engaged in a 'dangerous recreational activity' was also rejected. The Court held the risk of falling off a horse and a fatal injury occurring still exists during a warm-up, regardless of how likely it may be. It was not necessary to 'segment' the activity.
A claim pursuant to the statutory guarantee imposed by s 60 of the Australian Consumer Law (ACL) also failed as s 275 of the ACL makes certain state laws which limit or preclude liability applicable to the federal regime. As such s 5L of the CLA applied as an answer to the claim under the ACL.
The judgment indicates the Courts remain cautious about accepting an obvious risk defence when a high degree of particularity is required to describe the way in which someone was injured. Practitioners and insurers seeking to rely upon the s 5L defence ought to take note of the Court's tendency to adopt a funnelling approach when considering whether a risk is really all that obvious. The broader the characterisation, the more likely a risk is obvious, and the more likely a complete defence will be accepted.
Author: Renee Magee
Judgment date: 21 April 2020
Citation: Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
Jurisdiction: NSW Court of Appeal
Principles
- Whether an obvious risk defence is available will depend on the degree of precision needed to characterise the risk
- An obvious risk defence is more likely to be accepted when the risk can be broadly characterised
- A risk may be “obvious” even if it has a low probability of occurring
- Section 5L of the Civil Liability Act 2002 (NSW) will also serve as a complete defence to claims brought under the Australian Consumer Law for breach of the consumer guarantees regarding the supply of services
Background
The plaintiff was riding her horse whilst warming up for a competition organised by the Wagga Wagga Show Society when the horse became startled by noise caused by children nearby and fell.
The trial judge found the Wagga Wagga Show Society was not negligent by operation of s 5L of the Civil Liability Act 2005 (NSW) (CLA). The plaintiff's injuries had materialised as a result of her horse being spooked which constituted an obvious risk incurred during a dangerous recreational activity.
The principal consideration on appeal was whether the Court had erred in characterising the risk of harm as 'obvious'. The plaintiff argued the risk of injury caused by a horse falling after being spooked by children creating noise was not obvious under the CLA. Additionally, the act of warming-up before a horse riding competition deprived the activity of being 'dangerous', and therefore the defence should not apply.
Decision
The Court of Appeal upheld the trial judge’s decision and found the statutory defence of obvious risk did apply.
In dismissing the appeal, Leeming JA reasoned it was unnecessary to distil the risk of harm further by specifying precisely what caused the horse to startle. Additional facts should only be added where they materially alter the mechanism by which the harm was sustained. In this case, the risk of harm was falling off the horse. It was not necessary to descend to the level of detail by referring to the children's actions as this did not mischaracterise the way the harm occurred. It was obvious the horse could have been spooked by any manner of stimuli at any time. The rider is still exposed to a risk of injury irrespective of whether children were making noise by banging on a nearby metal gate.
The argument that the plaintiff was not engaged in a 'dangerous recreational activity' was also rejected. The Court held the risk of falling off a horse and a fatal injury occurring still exists during a warm-up, regardless of how likely it may be. It was not necessary to 'segment' the activity.
A claim pursuant to the statutory guarantee imposed by s 60 of the Australian Consumer Law (ACL) also failed as s 275 of the ACL makes certain state laws which limit or preclude liability applicable to the federal regime. As such s 5L of the CLA applied as an answer to the claim under the ACL.
Why this case is important
The judgment indicates the Courts remain cautious about accepting an obvious risk defence when a high degree of particularity is required to describe the way in which someone was injured. Practitioners and insurers seeking to rely upon the s 5L defence ought to take note of the Court's tendency to adopt a funnelling approach when considering whether a risk is really all that obvious. The broader the characterisation, the more likely a risk is obvious, and the more likely a complete defence will be accepted.