Menz v Wagga Wagga Show Society Inc

Solicitors: Commins Hendriks (Appellant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/180935 2020/45410 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 541 Date of Decision: 20 May 2019 Before: Bellew J File Number(s): 2015/285709

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the decision] The appellant was seriously injured when her horse was startled and fell whilst warming up for an event at a show in Wagga Wagga in September 2012. At the time of the appellant's injury, there were children playing on a fence surrounding a track in the centre of the show ground. The children made contact with a metal sign on the fence, causing a very loud noise. The appellant's horse, which was in the warm-up area nearby, was startled and fell while the appellant was in the saddle. On the previous day, the appellant had signed an "Indemnity and Waiver" form, which stated that it constituted a "risk warning" for the purposes of the Civil Liability Act 2002 (NSW). The appellant sued the respondent in negligence and pursuant to the statutory guarantee imposed by s 60 of the Australian Consumer Law. It was not disputed that the respondent owed a duty of care to people entering and competing in events at the show. However, the respondent relied on a number of statutory defences under the Civil Liability Act, as well as denying breach of duty in respect of the claim in negligence, and also submitted that those statutory limitations of liability qualified the federal statutory guarantee. The primary judge held that the appellant's injury was a result of the materialisation of an obvious risk of a dangerous recreational activity, such that the respondent was not liable in negligence, pursuant to s 5L of the Civil Liability Act. The primary judge also rejected the allegation that the respondent contravened s 60 of the Australian Consumer Law, on the basis that, pursuant to s 275 of the Australian Consumer Law, s 5L of the Civil Liability Act operated to defeat the federal claim as well. The primary judge further held that, in any event, the respondent had not breached its duty of care to the appellant, applying s 5B of the Civil Liability Act. At trial, the appellant sought to adduce evidence in the form of a report authored by a person with extensive experience as a horse trainer, riding instructor, and competitor and judge in agricultural shows. The report expressed opinions to the effect that the respondent should have stationed marshals in the warm-up area, and should have taken steps to prevent the presence of children. The primary judge excluded much of the report on the basis that its author was not properly qualified to opine on legal matters or on matters outside her specialist knowledge, such that the evidence did not comply with s 79 of the Evidence Act 1995 (NSW). The issues in the appeal were: i) Whether the primary judge erred in characterising the risk as an "obvious risk", and in finding that the appellant was engaged in a "dangerous" recreational activity, such that s 5L of the Civil Liability Act applied to defeat her claim. ii) Whether the primary judge erred in rejecting the expert evidence called by the appellant at trial. iii) Whether the primary judge erred in finding that the respondent had not breached its duty under s 5B of the Civil Liability Act by failing to station marshals. The Court (Leeming JA, Payne and White JJA agreeing) held, dismissing the appeal: As to issue (i):

1. Reading the Civil Liability Act as a whole points towards a degree of generality in the formulation of risks in connection with recreational activities: at [55]-[59], [70]. However, the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case: at [71]. The words "as a result of" in s 5L require a causal connection between the harm and the risk which materialises. As this causal connection can only be satisfied after the risk has materialised, determining the appropriate level of particularity in formulating the risk requires hindsight: at [72]-[73].
2. It was no answer to the respondent's reliance on s 5L of the Civil Liability Act to point to a different characterisation of what occurred which would fall outside of s 5L, unless that different characterisation defeated the respondent's reliance on that section: at [68]-[69].
3. In the present case, the appellant's harm was caused as a result of the fall: at [75]. It was appropriate to characterise the harm as the materialisation of the obvious risk of her horse being spooked by some stimulus, and it was not necessary to provide the additional particularity that the noise made by children spooked the horse: at [78]-[79]. Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 418; Campbell v Hay [2014] NSWCA 129; and Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; 324 ALR 355 referred to.
4. In characterising the activity in which the appellant was engaged, the warm-up should not be separated from the competition. Even if the warm-up were treated as a different activity from the competition, the warm-up was still "dangerous" for the purposes of the defence in s 5L, because of the ever-present risk of a fall from the horse's unexpected reaction to some stimulus: at [81]-[88]. Falvo v Australian Oztag Sports Association [2006] NSWCA 17; [2006] Aust Tort Rep 81-831; Stewart, Vickery and Stewart v Ackland [2015] ACTCA 1; Ohlstein v E & T Lloyd t/as Otford Farm Rides [2006] NSWCA 226; and Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 418 referred to. As to issue (ii):
5. The primary judge was correct to exclude the evidence in the report. The report did not explain how the author's opinions derived from her specialised knowledge or explain the reasoning process underlying her conclusions that marshals should have been present and children prevented from being present: at [105].
6. In order to comply with s 79 of the Evidence Act, an expert's opinion should expose his or her process of reasoning in a way that shows the opinion is based on particular specialised knowledge: at [108]. Rolleston v Insurance Australia Ltd [2017] NSWCA 168; and Roads and Maritime Services v Grant [2015] NSWCA 138 applied. As to issue (iii):
7. On a prospective assessment of what reasonable steps a person in the respondent's position would have taken for the purposes of s 5B(1)(c) of the Civil Liability Act, the appellant had not established that the respondent had breached its duty of care: [128]. This was in circumstances where additional marshals might have reduced some, but not all, stimuli which might startle horses, and where evidence was absent as to the dimensions of the warm-up area or the number of horses, riders and marshals at the show ground: at [110]-[115]. Streller v Albury City Council [2013] NSWCA 348 referred to.

Judgment

1. LEEMING JA: Ms Kerrie Anne Menz was seriously injured when her horse fell while warming up before competition on the second day of the Wagga Wagga Show in 2012. The respondent accepted that it had the care, control and management of the show held at the Wagga Wagga Show Ground. Ms Menz sued in negligence and pursuant to a statutory guarantee imposed by the Australian Consumer Law. She appeals as of right from the judgment entered against her following a four day trial in the Common Law Division: Menz v Wagga Wagga Show Society Inc (No 3) [2019] NSWSC 541.
2. The primary judge based his decision on a number of specific defences, principally that based on "obvious risk" of "dangerous recreational activity" in s 5L of the Civil Liability Act 2002 (NSW). His Honour also considered that if the specific defences were inapplicable, then Ms Menz had not established any breach of duty. Her Australian Consumer Law claim was dismissed for reasons consequential upon the statutory defences to the claims in negligence.
3. Some parts of his Honour's judgment are outside the scope of the appeal. His Honour assessed damages contingently, and no challenge is made to that; indeed, the agreed damages considerably exceed the $100,000 threshold for appeals as of right imposed by s 101(2)(r) of the Supreme Court Act 1970 (NSW). An application for leave to appeal from a costs judgment commenced by a separate summons was abandoned at the hearing and should be dismissed. Although his Honour relied on other specific defences created by the Civil Liability Act, notably ss 5I and 5M, the respondent did not seek to defend those aspects of the judgment in this Court, and I shall only summarise the parts of the judgment which were in contest on appeal.
4. Ms Menz also seeks to appeal from a ruling excluding much of the report of Ms Debbie Smyth, a retired horse trainer and riding instructor, which was the subject of a separate ex tempore judgment delivered on the second day of the trial: Menz v Wagga Wagga Show Society Inc (No 1) [2018] NSWSC 1446.

Overview of facts

1. The essential factual background was succinctly summarised by the primary judge at [3]-[5], as follows: "On 27 September 2012, the plaintiff attended the first day of the show. She rode Sonny in a number of events, entry to which was gained by buying tickets at the office of the show secretary. She said that prior to competing on that day, she had 'signed some forms which are routinely provided at agricultural shows'. On 28 September 2012, the plaintiff attended the second and final day of the show to ride Sonny in some further events. She was not required to sign any forms by the show organisers on that day. She took Sonny in a lead class but she has no recollection of anything else that happened. It is the plaintiff's case that at approximately 10:00am she was riding Sonny in a designated warm-up area of the showground prior to the commencement of an event in which she was to compete. A number of children were nearby, playing and/or climbing on a fence surrounding a greyhound track which was located in the centre of the showground. Those children made contact with a metal sign on the fence, causing a very loud noise. This noise startled a horse called 'Banjo' which was being ridden in the plaintiff's vicinity by Cassandra MacDonald. Sonny was also startled. He faltered and fell onto his right side whilst the plaintiff was still in the saddle, causing the plaintiff to fall at the same time. It is not in dispute that the plaintiff sustained serious injuries as a consequence of Sonny falling, and that she continues to suffer significant ongoing sequelae. The plaintiff asserts that the incident was caused by the negligence of, and/or the breach of contract by, the defendant. Although a number of particulars have been pleaded, the essence of the plaintiff's case is that there was a failure on the part of the defendant to have marshals and stewards available to control the presence and behaviour of children in and around the warm-up area."
2. In order to understand the case in negligence, it is necessary to understand the configuration of the showground in a little more detail. The aerial photograph below shows the larger grey oval trotting track, which surrounds a smaller brown greyhound track at the showground.
3. The dotted lines to the right of the "ENTRY" cross the trotting track and lead to an area within that track but outside the greyhound track. Horses were not permitted to ride on the trotting track or the greyhound track. Vehicles could enter at the location marked "ENTRY", towing horse floats, and proceed to cross the trotting track and then drive on a road internal to the trotting track and outside the greyhound track which extended towards and beyond the "HORSE FLOAT USED AS OFFICE". (The words "USED AS" on the aerial photograph are written on the road.)
4. The four areas within the greyhound track marked "RING" were four designated rings, separated by laneways marked by flags on rope strung between star posts. There was also an area within the greyhound track, but separate from the rings, where riders and their horses warmed up. Horses would enter the area inside the greyhound track at the crossing adjacent to the horse float, and proceed down the "laneway" delineated by bunting into one of the rings or alternatively into the warm-up area.
5. The black "X" immediately above the words "Warm Up", which is labelled "Fall", is deceptive. That location appeared on the exhibit as tendered, and had been briefed to Ms Smyth (and was annexed to her report) some two years before the trial. However, as will be seen below, the evidence placed Ms Menz at the red "X" in the middle of the greyhound track. The large blue "X" on the edge of the greyhound track near the "Entry" was the location of the children. The small circle under the word "Up" identifies the location of Ms McDonald, who gave the best evidence of the accident.
6. Ms Menz had no recollection of the day. However, there were three eyewitnesses, the most important of whom was Ms Cassandra MacDonald. She had also been competing at the show on that day and the previous day, and was riding her horse in the warm-up area on the morning. She said she noticed two children, aged around 7 to 10, and she indicated with a blue cross near the dotted lines on the trotting track where they were sitting on the fence surrounding the greyhound track. In her words: "So there was a metal sign on the fence that they were jumping up and down from and as I came around that second time, I - they tapped their heels on it a couple of times but then they banged their heels on it."
7. Ms MacDonald said that the noise was very loud and she compared it "to a gunshot in a way". She agreed in cross-examination that it was "probably similar to a [.]22". She said that her horse was spooked by the noise, turned directly to her left, and jumped a couple of steps before she pulled the horse up. It is not clear whether the same noise directly spooked Ms Menz's horse, or whether Ms Menz's horse reacted to Ms MacDonald's horse. In any event, Ms Menz's horse fell over, landing on Ms Menz: "Q. And what did you see the other horse do? Did it stay on its feet or what happened? A. No, so the lady was trying to get the horse to back up and it took a couple of steps back but then it started going sideways and it basically just went from standing to flop sideways onto the ground. Q. And did the lady get up or was she - A. No. Q. - under the horse? Did the horse get back up? A. The horse got back up pretty quickly and she was on the ground still in the riding position. Q. What does that mean? A. So like you can imagine if you're sitting on a horse, it's almost like sitting on a seat I guess with your hands out on the reins and she was still in that position when the horse got up."
8. Ms MacDonald marked with a red cross where Ms Menz's horse fell, and a circle where her own horse was.
9. This was the best evidence of the locations of the children and the horses at the time the noise was made.
10. Two other witnesses gave evidence of the accident. One was a strapper who was in one of the ring areas and saw the children. The other was a rider who was on her horse on the laneway within the greyhound track when she heard a "loud bang" and turned to her left and saw "two young kids jumping over the fence into the warm up area". She said "they hit a sign and made a loud bang which then set a horse off and startled it. Which then this horse ran sideways, banged into Kerrie's horse. Kerrie's horse got startled, lost its footing and fell over on top of her".
11. Consistently with that testimonial evidence, the ambulance records and other medical evidence refer to the horse falling on Ms Menz's head.
12. The point of the foregoing is that the young children were located between the trotting course and the greyhound track near the area marked "Entry". But that was an entry for vehicles. It was not an entry for horses, or horses ridden by competitors. Horses and their riders who wished to warm up or participate in one of the four rings would cross the greyhound track some distance away, near the horse float, rather than near the vehicular entry where the children were, and then proceed through the laneways created by the bunting separating the four rings to reach the warm-up area.

Ms Menz's claims in tort

1. The statement of claim alleged some 19 particulars of negligence. The majority appear to have been in standard unhelpfully generalised form. Some involved failures to warn or advise Ms Menz of danger or the risk to injury. Others extended to failing to engage a marshal or steward to monitor the warm-up area, failing to remove children from the area which was not open to the public, and failure to "properly monitor the designated zones [into which] the public was denied access". The particulars embraced (and extended well beyond) the essence of the appellant's case as advanced at hearing, which was a failure to have marshals and stewards available to control the presence and behaviour of children in and around the warm-up area.
2. The defence reflected the variety of particulars of negligence, and denied that the respondent had any liability by reason of ss 5F, 5H, 5I, 5L and 5M of the Civil Liability Act. The respondent also relied upon a "participant's indemnity and waiver" form, signed by Ms Menz on 27 September 2012, which was alleged to give rise to a complete defence. It denied the allegations of negligence, and alleged contributory negligence, but the latter was abandoned on the first day of the trial.

Dangerous recreational activity

1. The primary judge commenced with the statutory defences. His Honour dealt in most detail with the "dangerous recreational activity" defence created by s 5L read with s 5F.
2. Section 5L of the Civil Liability Act is in the following terms: "5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) 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. (2) This section applies whether or not the plaintiff was aware of the risk." Section 5L picks up the definitions in ss 5F and 5K which are as follows: "5F Meaning of 'obvious risk' (1) For the purposes of this Division, an 'obvious risk' to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5K Definitions In this Division: 'dangerous recreational activity' means a recreational activity that involves a significant risk of physical harm. 'obvious risk' has the same meaning as it has in Division 4. 'recreational activity' includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."
3. The primary judge noted that Ms Menz accepted that she had been engaged in a "recreational activity", and identified the two issues raised in response: that she had not been engaged in a "dangerous" recreational activity, and, even if she were, the risk which materialised resulting in her injury was not an obvious one.
4. The primary judge identified the recreational activity in which she was engaged as "that of horse-riding", observing at [57] that: "There is a risk of catastrophic injury to the rider of a horse simply as a consequence of a horse being ridden. There is evidence before me which makes it clear that horses are unpredictable in terms of their reaction to external stimulae. That unpredictability exists as a consequence of the fact that a horse [is] a powerful animal, with a mind of its own, and which is prone to reacting suddenly and unexpectedly to external stimulae. The fact that the plaintiff was warming up with Sonny at the time of the incident does not mean that her activity of riding him was not dangerous. The risk of serious injury resulting from a horse being spooked is continually present, regardless of whether a horse is being ridden in a warm up exercise, or in an event or competition."
5. At [60]-[65], the primary judge turned to whether the risk was obvious. His Honour observed that a "wide approach" must be taken when identifying whether the risk was obvious, noting that it was both unnecessary and undesirable to define the particular risk of harm with a high degree of particularity, citing Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 at [153]. Relying on evidence that all horses can react unexpectedly to different external stimuli, and what Bryson JA had said in Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides [2006] NSWCA 226 at [161]-[162], his Honour concluded that the risk was obvious: "The fact that the noise created by the children which caused [Ms MacDonald's horse] Banjo to be spooked was external to the plaintiff's activity of riding Sonny does not mean that the risk was not obvious. On the evidence before me, the propensity of horses to make sudden and unexpected movements in response to external stimulae is constant. Those stimulae will invariably, if not always, be external. They may include a piece of paper blowing across the ground, the casting of a shadow, a sudden movement by another horse, or a sudden movement by a human being. The plaintiff was an experienced horsewoman. The risk of a horse being spooked was obvious to a person of her experience. That much is clear from those parts of her evidence to which I have previously referred."
6. Finally, his Honour concluded that the harm suffered by Ms Menz was the result of the materialisation of an obvious risk, with the result that s 5L operated to deny the claim.
7. Ms Menz renews in this Court her challenges to the characterisation of the "obvious risk" and whether she was engaged in a "dangerous" recreational activity when she was injured.

The claim under the Australian Consumer Law

1. At [94]-[104], the primary judge rejected the allegations for contravention of s 60 of the Australian Consumer Law, which provides that: "If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill."
2. There is some awkwardness in construing that federal guarantee in light of the definition of "supply" and "services" which need not be explained in detail (it is considered in Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456 at [167]-[173]). For present purposes, all that matters is that the federal guarantee is not unqualified. Section 275 of the Australian Consumer Law makes certain State laws which limit or preclude liability applicable to the federal regime: "If: (a) there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 3-2; and (b) the law of a State or a Territory is the proper law of the contract; that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services."
3. Former s 74 of the Trade Practices Act 1974 (Cth) resembled s 60, although it imposed an implied contractual warranty, rather than creating a statutory guarantee. However, there was formerly no counterpart to s 275, as a result of which s 74 was unqualified and was held to engage s 109 of the Constitution so as to render inoperative a Queensland law limiting the liability of carriers in Wallis v Downard-Pickford (Nth Qld) Pty Ltd (1994) 179 CLR 388; [1994] HCA 17. Section 275 provides for the opposite outcome. State and Territory laws which limit or preclude liability arising from a breach of a contract for the supply of services also limit or preclude liability under the federal guarantee created by s 60.
4. Evidently, there was a contract between Ms Menz and the respondent, pursuant to which she was permitted to enter onto the land and compete in certain events (for which she paid a nominal entry fee). Pursuant to that contract, the respondent supplied and Ms Menz received services including those relating to the organisation of the equestrian events in which she competed. The proper law of the contract was the law of New South Wales. Accordingly, if, as Ms Menz alleged, the services of running the equestrian events at the Wagga Wagga Show had not been rendered with due care and skill, the preconditions to s 275 were established. Further, s 5L of the Civil Liability Act applied, bearing in mind that s 5A makes Part 1A of the Act applicable to "any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise", and "negligence" is defined in s 5 to mean "failure to exercise reasonable care and skill".
5. The primary judge considered, relevantly, that s 5L was a section which applied "to limit or preclude liability" within the meaning of s 275 of the Australian Consumer Law, with the result that s 5L was also an answer to the federal claim. Mr Jackson QC accepted that "if s 5L applies it would apply to defeat the claim both in negligence and under the Australian Consumer Law". However, in light of the High Court's reserved decision on appeal from Scenic Tours Pty Ltd v Moore, he sought to reserve his position in the event that the High Court effected a change in the law before judgment in this appeal was delivered.
6. The primary judge also relied on s 139A of the Competition and Consumer Act 2010 (Cth) to pick up s 5N and the risk warning signed by Ms Menz as a further answer to the federal claim. This aspect of his Honour's reasoning need not be summarised.

The common law claim

1. At [105]-[111], the primary judge addressed the "common law" claim. Of course, that claim was subject to s 5B of the Civil Liability Act: "5B. General principles (1) 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. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
2. The primary judge was not satisfied that s 5B(1)(c) was made out. His Honour noted that it was accepted that the defendant owed a common law duty of care to people entering and competing in events at the show. The gravamen of his Honour's reasons was that horses might react to a wide range of stimuli, and in particular, children might be expected to be present in many areas of the showground. It followed that the precautions contended could not be confined merely to having marshals near the fence where the children who actually made the noise on 28 September 2012 were present. His Honour said that "[a]n acceptance of the plaintiff's case would have required the defendant to have a large number of marshals in and around the trotting track and the greyhound track": at [108], and that the burden of the precautions was not confined to placing marshals in and around the area to control the presence of children, but rather "it extended to addressing a series of other circumstances to which a horse might suddenly react, including something as simple as a piece of paper blowing across the ground": at [110].
3. Finally, his Honour referred to the risk waiver which each competitor signed, and accepted the defendant's submission that "a reasonable response on the part of the defendant in the present [case] was to make it clear to those who wished to compete, through the risk warning, that it would not be liable for any injury": at [111].
4. On appeal, Ms Menz disputed the formulation of the risk of harm, and challenged the factual findings in each of [108]-[111].

The appeal

1. The principal issues arising on appeal may be divided into three topics: (a) the challenge to the dangerous recreational activity defence under s 5L (grounds 3-8 and 10); (b) the rejection of Ms Smyth's evidence (ground 14), and (c) the challenge to the finding of no breach of duty under s 5B(1)(c) (grounds 1, 2 and 2A).
2. Grounds 9, 11, 12, 13 and 13A dealt with the risk warning signed by Ms Menz. However, because save in one respect the respondent did not seek to defend the reasoning based on s 5M and because these grounds will not affect the outcome, they need not be addressed separately. Ground 16, dealing with damages, was not pressed.

Dangerous recreational activity

1. Section 5L is well described, in Professor Goudkamp's terminology, as a "liability-defeating rule": J Goudkamp, Tort Law Defences (Hart Publishing, Oxford, 2013), p 2. If a defendant establishes that s 5L applies, then it is "not liable in negligence" for a certain class of harm, without the need to analyse duty, breach and causation.
2. It was not inappropriate for the primary judge to address s 5L first. Doing so was consistent with what was said in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [185] and the decisions there referred to. In the present case, duty was admitted, and causation was straight-forward, but breach gave rise to highly contestable evidentiary issues, particularly in terms of the reasonable response required by s 5B(1)(c) having regard to the matters specified in s 5B(2). Because s 5L is a specific provision which provides a complete answer to liability, and is prima facie aimed at situations similar to those alleged by Ms Menz, considerations of judicial economy suggest it should be relied on at the outset. That is not to say that the alternative defences should be overlooked, and indeed the primary judge went on to attend to all of the issues raised on the pleadings. But if there is a choice between a simple and a complex legal analysis to resolve a dispute, it seems commonsense to take the simple route home first.
3. Obvious risks pre-dated the Civil Liability Act, and s 5L is to be construed in light of the pre-existing law, although the section probably altered the law. I have in mind the support in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, a pre-Civil Liability Act case, for the (contentious) proposition that the obviousness of a risk is not determinative of breach, although it will be relevant to assessing the steps which ought to have been taken by an occupier to discharge its duty to take reasonable care: see at [7]-[8], [55] and [162]. However, when s 5L applies, a defendant who can establish that the harm has resulted from the materialisation of an obvious risk of a dangerous recreational activity will have a complete defence.
4. It is uncontroversial that the onus lies on the defendant to make out the elements of s 5L: Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 at [24], [122]-[123]; Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31]. But the issue presented by s 5L in the present case did not turn on any evidentiary onus. There was no factual dispute as to the immediate cause of Ms Menz's injuries - her horse fell while she was in the saddle and landed on her. There was no factual dispute that that occurred because her horse was "spooked". That may have been directly from the noise made by the children, or indirectly from the sudden movement of Ms MacDonald's horse reacting to the children, but nothing was said to turn on that. There was no factual dispute that horses could be spooked by a variety of stimuli, or that there was a risk of serious injury if a rider fell from a horse.
5. There was no challenge to the findings of fact that horses can act unpredictably and can be spooked by various events. However, it was said that that was not sufficient to engage s 5L, because that was said to depend on "whether the particular rider engaged in her particular activity having regard to, amongst other things, the characteristics of her horse" in order to determine whether she "faced a significant risk of harm and whether in the circumstances the risk of harm was obvious".
6. The issue was one of characterisation. Section 5L defeats a plaintiff's claim in negligence if the harm is suffered "as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff". One way of framing the issues concerning s 5L was whether the defendant had established that an "obvious risk" had materialised resulting in harm to Ms Menz, and whether she had engaged in a "dangerous" recreational activity. These were not issues of primary fact, but of the appropriate legal characterisation of substantially undisputed primary facts.
7. Ms Menz accepted in this Court, as she had at trial, that her riding on 28 September 2012 was a "recreational activity" as defined in s 5K. That must be so; it appears to engage all three limbs of the inclusive definition of that term. She maintained that the horse-riding she was undertaking in the warm-up ring was not a "dangerous" recreational activity, and further that the risk which materialised, namely, of her horse being spooked by a loud noise made by children, was not an "obvious" risk. As it was put by her: "the judge below mischaracterized the relevant risk. It was not the risk of riding a horse subject to all the normal noises and activities associated with the show. It was the risk of a noise not normally associated with the Show that could have been prevented by the Show exercising proper control of a perimeter adjacent to a warm up ring designated for horses."
8. The respondent submitted that there was always and inevitably the possibility of a large animal with a mind of its own being spooked by some stimulus, leading to a fall with the possibility of very serious injury to the rider. It followed that the activity was "dangerous", and the risk which materialised was "obvious".
9. Thus, the issue presented was as to the appropriate specificity or generality to describe each of (a) Ms Menz's conduct (competitive horse riding per se, or horse riding while warming up before competing), and (b) the risk which materialised (personal injury from a horse falling, or personal injury from a horse being spooked by the unlikely event of a sharp noise made by children near the warm-up area and falling). Understandably, the plaintiff contended for a narrow description of her conduct and the risk, while the defendant contended for a greater level of generality of both.
10. Such questions recur throughout law. They are an example of a familiar phenomenon, explained by Hart: "For any account descriptive of any thing or event or state of affairs, it is always possible to substitute either a more specific or a more general description": HLA Hart, "Dias and Hughes on Jurisprudence" 4 J Soc of Pub Teachers of Law (NS 1958), 144-5, cited in W Twining and D Miers, How To Do Things With Rules (5th ed 2010, Cambridge University Press), p 167.
11. The problem arises because the legal rule (here, the liability-defeating rule imposed by s 5L) is necessarily expressed in fixed statutory language, while the state of affairs to which the rule is said to be applicable may be described more or less generally or specifically without undue artificiality. It would be reasonable to describe Ms Menz's harm as being caused by her spooked horse falling while she was in the saddle, just as it would be reasonable to describe it as being caused by children making noise spooking the horses in the warm-up area. There is in short no canonical, or a priori correct, way of formulating the risk which materialised to cause Ms Menz's injury. Much may depend upon the degree of generality or precision with which the obvious risk is characterised, as was noted in Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 at [142] and by J Dietrich, "Personal Injuries and Recreational Activities" (2013) 115 Precedent 32 at 34.
12. That may seem rather abstract, but the issue is immensely practical. The Civil Liability Act makes the specification of the risk of harm important in every case. That applies at the threshold in every case in which a failure to take reasonable care is alleged, by reason of the three mandatory matters in s 5B(1) that a plaintiff must establish, and the four matters in s 5B(2) which a court is required to consider, all of which are addressed to a "risk of harm". Four of the seven matters invoke risk of harm in terms, while the other three, s 5B(1)(c) and 5B(2)(a) and (b), deal with taking precautions against a risk and the consequences of failing to do so, which cannot be assessed without regard to the risk. The importance of identifying the risk of harm has been stressed in, inter alia, Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [52]; Bitupave Ltd t/as Boral Asphalt v Pillinger at [153]; Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]-[107]; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [87]; Fairall v Hobbs [2017] NSWCA 82; 347 ALR 151 at [74]-[76] and Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [20]-[22].
13. This is one of the signal changes effected by the Civil Liability Act. While the correct identification of the risk of harm was stated to be essential to identify a reasonable response in decisions to which the statute did not apply (for example, Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59]), the statute crystallises the position. It is not surprising that most of the decisions on the way in which the risk of harm is to be formulated have been decisions to which the civil liability legislation applied.
14. Neither party's pleadings sought to identify what the risk of harm was - either for the purpose of identifying how ss 5B and 5C were satisfied, or for the purpose of identifying how the specific defences were made out. There was no reply, despite the extensive specific defences. Thus, the critical issue on this appeal - how is the "risk of harm" to be identified - was unaffected by the pleadings.
15. Some guidance is given by the cases. As Payne JA and I noted in Coles Supermarkets Australia Pty Ltd v Bridge at [22], it has been said that: 1. the formulation of risk of harm should identify the "true source of potential injury" (Roads and Traffic Authority of NSW v Dederer at [60]) and the "general causal mechanism of the injury sustained" (Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]); 2. "the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred": Erickson v Bagley [2015] VSCA 220 at [33]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 310 at [55]; 3. "What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury (as noted in Dederer at [60]) or because it too narrowly focusses on the particular hazard which caused the injury (as noted in Port Macquarie Hastings Council v Mooney ... at [67]), or because it fails to capture part of the plaintiff's case (as in Garzo)."
16. Similarly, there was no a priori correct way of describing Ms Menz's recreational activity. She was participating in equestrian events on the day. She was also warming up her horse in preparation for competition.
17. In order to identify the appropriate level of generality or specificity, the starting point is to recall that the question is one of statutory construction, and to note that the analysis will be different for the formulation of the risk, as opposed to the formulation of the activity.

Harm from materialisation of an obvious risk?

1. The definition of "obvious risk" in s 5F does not much assist the present issue of the appropriate level of abstraction, save to make it clear that an "obvious risk" is one which would have been obvious to a reasonable person in the position of the person who suffers harm. Some assistance may be derived from other provisions in Part 1A of the Civil Liability Act.
2. One point of a risk being an "obvious risk" is to engage the presumption in s 5G(1), that a person who suffers harm is presumed to be aware of the risk of harm if it is an obvious risk. The focus is on a reasonable person in the position of the plaintiff, as was noted in Jaber v Rockdale City Council [2008] NSWCA 98 at [35], and is clear from the reasoning, inter alia, in Streller v Albury City Council [2013] NSWCA 348 at [31]-[36]. That is the opposite of what ordinarily occurs. In every case where a plaintiff alleges a failure to take reasonable care, the plaintiff must establish that a reasonable person would have taken precautions against a foreseeable and not insignificant risk of harm: s 5B(1). That is to say, "risk of harm" in ss 5B and 5C characterises the risk from the perspective of the defendant. That said, it may be that little turns on this altered orientation. The risk is, after all, one that is obvious.
3. The Civil Liability Act is to be read as a whole, and s 5M(5) sheds some light on the appropriate generality or particularity of an obvious risk. The subsection provides that: "A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk)."
4. The fact that the statute in s 5M(5) explicitly eschews the specific and endorses the sufficiency of a warning of "the general nature" of the particular risk points towards the generality of the formulation of risks in connection with recreational activities. There is a direct link between s 5M(5) and s 5L, because risk warnings are relevant to the duty of care owed in respect of recreational activities.
5. Another textual indication is by way of contradistinction. The language of s 5M(5) may be contrasted with the "actual knowledge of the particular risk" which is required in order to negate the special non-feasance protection which is given to roads authorities in s 45. It seems clear that s 5L does not require that level of specificity.
6. Turning now to s 5L(1) itself, the liability-defeating rule includes words importing a causal connection: "as a result of". Section 5L(1) only defeats a plaintiff's claim where the harm is suffered "as a result of" the materialisation of an obvious risk. Causation in law is complex, albeit that in tort those complexities were long concealed by the opacity of a jury verdict, and it is trite that "the legal concept of causation differs from philosophical and scientific notions of causation": March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 509; [1991] HCA 12. The complexity is not solved by submissions which are sometimes made (although not in this appeal) that causation should be determined as a matter of "commonsense", a mantra which often conceals rather than elucidates. The difficulties in that course were exposed by McHugh J's dissenting reasoning in March at 531-534. Insofar as causation is an element of the tort, the test is now found in the factual causation and scope of liability required by s 5D of the Civil Liability Act. But the causal connection embedded within s 5L is not necessarily the "but for" test in s 5D(1)(a). This is a question of statutory construction, ultimately turning on the meaning of the words "as a result of" in their context.
7. I shall return to that meaning momentarily. But it is convenient immediately to note how the causality embedded in s 5L informs the specificity of the characterisation of an obvious risk. When Ms Hutton-Potts suffered harm from slipping on a recently polished floor which had not been buffed, Bryson JA (with whom McColl JA agreed) explained in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173]-[174] why the appropriate formulation of the risk was quite narrow: "Rejecting more highly generalised statements, such as that bad things sometimes happen in hotels or that people sometimes fall over when walking on floors, the risks which confronted Ms Hutton-Potts can be stated at several different degrees of intensity. In a room in a hotel where a cleaner is polishing the floor with a buffing machine there is a risk that a recently polished floor will be slippery, because it is polished. I do not think that it would be correct in fact to see this as the risk which matured. If it were to be said that that risk was obvious it would, in the application of the meaning of 'obvious risk' to the facts, have to be said that a reasonable person in the position of Ms Hutton-Potts who entered the room would have seen that Mr Elder was in the room, and would have gone further and considered what he was doing, and would have gone further and noticed that he was buffing the floor with a buffing machine; and that it would have been obvious to the reasonable person who did those things that there was a risk of slipping on the floor because it was recently polished. However that would not be enough to show that Ms Hutton-Potts suffered harm from an obvious risk, because it was not the recent polishing of the floor which caused her injury. A higher degree of intensity is required in stating the risk. Her injury was caused by there being polishing material on the floor which was not visible, and had not been removed in the buffing process. The finding that the risk which caused her injury was an obvious risk involves attributing to the reasonable person in her position discernment, as an obvious matter, that there may (even with a low degree of probability) be polishing material on the floor which was not visible. This is the risk which matured and caused her injury. Involved in this is not only advertence to what Mr Elder was doing, but advertence to the risk that he was not doing it properly."
8. Bryson JA's point was that a relatively high degree of specificity was required in order fairly to capture the risk which materialised causing harm to the plaintiff in that case. When that was done, the risk was not an obvious risk.
9. That reasoning is, to my mind, impeccable. It is endorsed in an article which closely considers the questions of generality and causation in s 5L, and which I have found helpful: G Perry, "Obvious risks of dangerous recreational activities: How is risk defined for Civil Liability Act purposes?" (2016) 23 Torts Law Journal 56 esp at 64-70.
10. Another example is Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; 324 ALR 355, where an eleven year old girl was injured during a quad bike excursion in a recreational park. The instructor drove at an excessive speed, causing the girl also to drive too fast. The relevant risk was described as "the risk of injury resulting from an instructor riding faster than was safe for inexperienced or young participants and effectively giving such persons no real choice but to also do so in order to keep up with him", in contradistinction with the risk if the rider or another participant lost control of his or her bike: at [46]. The fundamental instability of the bike and the instructor's dictation of an excessive speed were said at [40] to be "other matters altogether" from the risks of injury following a loss of control.
11. Returning to the meaning of "as a result of" in s 5L, this may also be dispositive for reasons distinct from the proper characterisation of the obvious risk. It is easy to see why. The evidence established a causal connection between the noise made by the children and Ms Menz's injury. Plainly enough, there was also a causal connection between Ms Menz losing control of her horse after it was "spooked" and her injury. The appellant said that the children's noise was what caused Ms Menz's horse to fall and it was not the materialisation of an obvious risk, and so s 5L was not satisfied. The respondent said that the horse being spooked and causing its rider to fall was the materialisation of an obvious risk, and so s 5L was satisfied.
12. In my opinion, the resolution of those simply-stated submissions has two elements. The starting point is to recognise the logical fallacy in the appellant's submissions. It will then be necessary to return to the causal relationship inherent in "as a result of".
13. Very regularly in law when issues of characterisation or construction arise, it will not be a sufficient answer to a contention that a state of affairs bears a particular character to say that it bears a different character. Here are some examples: 1. Legislative power. Stephen J explained that it was no answer to a submission that a law concerned secondary boycotts if the law was also with respect to trading or financial corporations: "Once it is recognized that a law may possess several distinct characters, it follows that the fact that only some elements in the description of a law fall within one or more of the grants of power in s 51 or elsewhere in the Constitution will be in no way fatal to its validity": Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 192; [1982] HCA 23. It is well settled that a law upon a subject matter within federal legislative power does not cease to be valid "because it can be characterized as a law upon a topic outside power": Tasmanian Dam case (1983) 158 CLR 1 at 151; [1983] HCA 21 (Mason J). More recently, the joint judgment in the Work Choices case explained that it was a "fundamental constitutional error" to describe a law as "really", "truly" or "properly" characterised as a law with respect to one subject matter as opposed to another: New South Wales v Commonwealth (2006) 229 CLR 1; [2006] HCA 52 at [51]. 2. Statutory or contractual construction. Advocates will commonly contend that a statute could have been more clearly drafted if it was truly intended to achieve a particular goal, and therefore that the actual language should not be construed to extend to that goal. The submission may be effective rhetoric, but it is a non sequitur. As Nettle, Gordon and Edelman JJ recently observed, "the fact that such other expressions were not selected does not suggest an absence of legislative intent to achieve the [particular] result ...": Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 373 ALR 1 at [159]. Similarly, it is not to the point to say that the contractual language does not have a particular meaning because different, clearer language could have been used to achieve that end. "[U]ltimately it does not much assist the task of construing the words which the parties chose to use to observe that they might have executed their bargain using clearer language": Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 at [111].
14. It is no answer to the respondent's submission that s 5L applied to point to a different characterisation of what occurred which falls outside of s 5L, unless that different characterisation falsifies or renders inappropriate the respondent's submission. The point may be illustrated by an extreme example. There may also have been a causal connection between the decision of the children's parent or guardian to leave them unsupervised on the morning of the second day of the show, and the noise that they made, with the consequent spooking of the horses. If so, then, in a sense, the harm suffered by Ms Menz was a result of a decision made by a parent or guardian of the children. But that would not defeat the defendant's reliance on s 5L.
15. The fact that a plaintiff can identify some facts which are not the "materialisation of an obvious risk" but which are causally connected with the plaintiff's harm is no answer to the defendant establishing other facts which are the materialisation of an obvious risk as a result of which the plaintiff suffers harm. While s 5L is a defence, it is not to the point for a plaintiff to establish that the harm suffered may be considered to be the result of the materialisation of a risk which is not an obvious risk, unless the plaintiff can also demonstrate that the defendant's characterisation is inappropriate. The focus must be on whether the respondent's characterisation of what occurred was an appropriate one so as to engage s 5L.
16. What follows from the considerations mentioned above is the following. First, the obvious risk is in principle to be specified with a degree of generality. There may well be no single "correct" specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient.
17. Secondly, the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required.
18. Thirdly, a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight.
19. Fourthly, I think there is much to be said for the view that "as a result of" in s 5L, in a context which speaks of harm materialising from an obvious risk, requires a close causal connection between the harm and the risk which materialises. The section is directed to harm which materialises as a result of a risk of which the plaintiff ought reasonably to have known. If the risk is obvious, it may be expected that there is a close causal connection between the risk which materialises and the harm.
20. Fifthly, the proper characterisation is fact-dependent, and will turn on the evidence in any particular case of what occurred, and why the risk is one that is obvious.
21. In the present case, the harm was caused as a result of the fall. True it is that the indirect cause was the noise made by the children. But that does not deny a conclusion that the entirety of the personal injury may fairly be said to be "as a result of" the horse being spooked and its rider losing control.
22. An analogy may be taken from Basten JA's reasoning in Fallas v Mourlas at [150]-[158], concerning an obvious risk of physical harm from the accidental discharge of a loaded rifle when "spotlighting" for kangaroos. The existence of such a risk is unaffected by the reasons which may lead to the accidental discharge in any particular case, or by the care (or absence of care) of an armed fellow participant. It is not necessary in order to describe what occurred to go further and say that the gun discharged because the participant had forgotten there was a cartridge in the breach, and it had been necessary to brake suddenly because of an obstacle on the road.
23. To take a further analogy from Ward JA's reasoning in Campbell v Hay [2014] NSWCA 129 at [149], the obvious risk of flying in a light aircraft is that a passenger suffers harm following an emergency landing. It would be unduly particular to refer to the obvious risk being that of harm following an emergency landing by reason of failure of the propeller, or the engine, or whatever particular mechanical defect caused the emergency. That risk is ever-present, irrespective of the experience of the pilot or the maintenance of the aircraft.
24. Conversely, this is not a case where something quite unexpected, such as an instructor causing a young child to drive an unstable quad bike too fast as in Alameddine, means that physical harm from falling off a quad bike fails appropriately to capture what occurred. While the precise mechanism of Ms Menz's horse being spooked may not have been obvious, the fact that her horse could be spooked by some stimulus at any time was obvious.
25. There will, inevitably, be difficult cases. But the present is, to my mind, quite clear. There were three basal and inescapable facts in this litigation. The first was that, as it was put, there was "no such thing as a bomb proof horse". The second was that horses may at any time be spooked by a noise, or a shadow, or some other stimulus. The third was that a rider runs a risk of serious injury in the event that a horse is spooked and behaves unpredictably. Those facts make it appropriate to characterise the harm suffered by Ms Menz as the materialisation of the obvious risk of her horse being spooked by some stimulus. It is not necessary in order fairly to describe what occurred to provide the additional particularity that the noise made by children spooked the horse.

A "dangerous" recreational activity?

1. A "dangerous recreational activity" is defined, exhaustively, in s 5K, to mean a recreational activity that involves a significant risk of physical harm. It was not disputed that a low risk of catastrophic harm may be "significant" for the purposes of s 5K, although it is a matter of judgment in every case: see Falvo v Australian Oztag Sports Association [2006] NSWCA 17; [2006] Aust Tort Rep 81-831 at [31]; many of the authorities may be seen in Stewart, Vickery and Stewart v Ackland [2015] ACTCA 1 at [34], [120]-[121] and [169] (for present purposes, I shall pass over some nuances in the authorities).
2. The primary judge relied on a passage in Ohlstein v E & T Lloyd t/as Otford Farm Rides to the effect that horse-riding is self-evidently dangerous. That is best regarded as a short-hand for taking judicial notice; judgments are authority for propositions of law, not of fact. But there was no error in the conclusion that horse riding is dangerous. It is obvious that a rider is elevated well above the ground, upon a large powerful animal which may react independently to stimuli, and that a fall can have very serious consequences even if the rider does not come into contact with the horse, and especially if the rider does.
3. The appellant sought to distinguish warm-up from competition, and thereby fall outside of a "dangerous" recreational activity. For the reasons which follow, I do not accept the submission, but even if I did, it would not matter.
4. There are three types of conduct which are included within the definition of "recreational activity": "any sport", and "any pursuit or activity" which is engaged in either for enjoyment, relaxation or leisure, or at a place where people ordinarily engage in sport or pursuits or activities for enjoyment, relaxation or leisure.
5. The terms "sport", "pursuit" and "activity" are all apt to convey not merely the competitive or recreational acts themselves (of playing a game or riding a horse) but also the essential prerequisites to those acts.
6. Tennis or squash players will commonly exchange shots before a match while warming up. It would be quite artificial to regard the players as involved in two separate recreational activities, namely, (i) warming up, followed by (ii) the game itself. Rather, there is a single sport, a familiar and incidental aspect of which is the warming up which precedes the match. Why would riding the horse immediately before a competitive event as part of a warm-up be regarded as a separate activity?
7. Ms Menz prayed in aid a passage in the reasons of Ipp JA in Fallas v Mourlas at [46] concerning "segmenting" the particular activities actually engaged in where possible. Ipp JA said that "segmenting in this way would reasonably be possible where persons are engaged in a recreational activity that comprises sets of activities that, according to commonsense considerations, are distinguishable and separate from each other". I respectfully doubt that a reference to "commonsense considerations" will assist in any controversial case: both parties will assert their characterisation is correct as a matter of "commonsense" and how is a court to resolve the dispute? In any event, the issue is straightforward where there are two activities which are "distinguishable and separate", but what if not? I have in mind, for example, downhill skiing. Is the activity of getting on and off and riding a chairlift to be regarded as a separate activity from the dangerous recreational activity of skiing down a run? It might be thought that ordinarily, the element of s 5L which controls the scope of the defence is that the risk be an obvious one, as opposed to a segmentation of the recreational activity; as it was aptly put by Mr Sexton for the respondent, "the pressure relief valve, if I can call it that, in 5L is not whether something is a dangerous recreational activity, [but] whether the harm is caused by an obvious risk of that activity".
8. But nothing turns on this. If the warm-up is treated as a different activity from the competition itself, it is still dangerous. There is still the ever-present risk of a fall when the horse reacts unexpectedly to some stimulus. That risk is "significant" because, even if it is of very low probability, there is an ever-present chance of catastrophic or even fatal injury.
9. Accordingly, I think that the relevant recreational activity was not one which was confined to the warm-up, but that whether or not that is so, it was a dangerous recreational activity.
10. The challenge to the s 5L defence is not made out. That is dispositive of the appeal. Nonetheless, I address the remaining grounds which were the subject of argument.

The rejection of parts of Ms Smyth's evidence

1. Ms Debbie Smyth had extensive experience as a horse trainer, riding instructor, and competitor in showing and riding, including being "Champion Lady Rider at numerous agricultural shows". She had also judged at agriculture and all-breed horse shows throughout New South Wales, the Australian Capital Territory and Queensland. She provided a short expert report directed to five overlapping questions: "Should the Show Society have taken steps to remove young children playing on the greyhound track near the warm up area?", "Should there have been a marshal in the warm up area?", "Should a Show Society steward or marshall who was aware of the children playing on or near the greyhound track, jumping off the fence, kicking the sign and or running under the bunting have taken steps to remove them?", "Should the warm up area have been supervised?" and "Should children have been prevented from entering the warm up area?" Ms Smyth's report gave short evidence explaining her agreement with each of those questions.
2. The nature of her report is sufficiently explained by identifying the following passages, all of which were rejected by the primary judge, and which were the subject of this ground of appeal.
3. Almost all of the executive summary was rejected: "I have outlined my findings below in my answers to your questions and it is my opinion that the incident involving Mrs Kerrie Anne Menz falling from her horse and suffering catastrophic injury was both foreseeable and preventable. Based on the information supplied to me by Commins Hendriks Solicitors, my knowledge and experience as a former successful show competitor and competent horse trainer/rider and instructor it is my opinion that the Wagga Wagga Show Society ought to have provided stewards/marshalls at the warm up/marshalling area and at the point of entry from the trotting track into the showground at the 2012 Wagga Wagga show. In my opinion if the Show Society had provided these necessary stewards/marshalls at these key points of the showground, it would have prevented the children from playing on the greyhound track. … In my opinion the Wagga Wagga Show Society neglected their duty of care to the horse competitors by not providing stewards/marshalls at these key points. Furthermore when any of the Show Society members became aware of the children playing in that area, they failed to take immediate action to remove the children from the 'no go zone.'"
4. In answer to the question whether steps should have been taken to remove the children, the primary judge rejected her evidence: "Yes the show society should have taken steps to remove the children from the warm up area." "A Show Society official or representative should have gone over to the children and removed them from the area or the announcer could have put it over the loud speaker for the children to leave the greyhound track and ask for the parents to come and collect the children. The children should not have been on the greyhound track in close proximity to the horses and they should have been removed."
5. In answer to the question concerning the presence of a marshal, the primary judge rejected the following portions of her evidence: "Yes in my opinion there should have been a marshal in the warm up/ marshalling area." "Therefore there would be a lot of horses within the warm up/marshalling area at any time and it can become very congested." "The marshall is also there to oversee the safety of the competitors working their horses in the warm up area and ensure the horses are working in the same direction when the area becomes congested to avoid people running into each other." [having made reference to the size of the warm up area], "which would be approximately 40 horses within the warm up area at any one time ... therefore it is necessary for a marshal to be in attendance at all times to ensure the safe running of the warm up area."
6. In answer to the question whether a steward or marshal should have taken steps to remove the children, the following evidence was rejected: "Yes a Show Society steward or marshall who was aware of the children playing on or near the greyhound track, jumping off the fence, kicking the sign and or running under the bunting should have taken steps to remove the children." "A Show Society steward or marshall would or should have seen the children playing on the greyhound track. There were four rings running in the showground, which were all clearly visible to the greyhound track and warm up area ... The steward would have had plenty of time while a class was being judged and should have gone over to the children and removed them." "Based on the information provided to me by Commins Hendriks Solicitors, there are four witness statements of Cassandra M[a]cDonald, Jessica Post, Renee Huggard and Taylor Sutherland that all state that they saw the children playing on the greyhound track near the warm up area on both days of the show ... The officials of the show society ought to have seen the children playing on the greyhound track and in particular the stewards in the four show rings ought to have seen the children playing in the 'no go zone' and taken steps to remove them from that area." "The Show Society should have had appropriate people with horse experience and instructed them correctly in all aspects of safety working as stewards or marshalls at the show." "A Show Society steward ought to have seen the children and immediately remove them from that area once they became aware of the situation. Not only were the children not allowed to be there, the stewards should have foreseen the risk they were putting the competitors at when the children spooked the horses in that area."
7. In answer to the question whether the warm-up area should have been supervised, the primary judge rejected her evidence as follows: "Yes in my opinion the warm up/marshalling area should have been supervised. A steward in this area at a major show is essential to the smooth running of the ring events. The steward's duties are as follows: - To ensure the safety of competitors in a confined [crowd]; - To ensure the horses were working in the same direction; - To ensure the competitors knew where they had to go for each ring; - To ensure the competitors were riding their horse in a safe manner; - To ensure the show jumping competitors took the correct route to the showjumping area; - To ensure the competitors did not ride their horses on the trotting track or the greyhound track; - To ensure the general public did not walk out onto the trotting track, greyhound track or warm up area; - To call up the competitors and have them marshalled ready waiting for the next class to go into the rings for judging."
8. The following portions of her evidence as to whether children should have been prevented from entering the warm-up area were rejected: "Yes the children should have been prevented from entering the warm up area." "I have been asked to assume that 'There were no show society stewards supervising the warm up area'. In my opinion there should have been a steward at the warm up/marshalling area and also at the point of entry of the trotting track. If there had been a steward at those key points it would have prevented the children crossing the trotting track to gain access to the greyhound track and warm up area. In my opinion the Wagga Wagga Show Society neglected their duty of care to the horse competitors by not having a steward at the point of entry to the trotting track and the warm up/marshalling area. At a major show it is essential to have stewards overseeing the safe running of the warm up/ marshalling area and to prevent the general public from entering those areas."
9. Finally, the following "Concluding comments" were rejected: "It is vital that the Show Society have properly instructed people working as stewards/marshalls at the show in the horse areas for the smooth running of the horse events and for the safety of the competitors." "I further believe there should have been better signage on the greyhound track and trotting track. Signs saying 'keep off' or 'keep out' or 'no public access'. The only signage I am aware of is a greyhound track sign that states 'No slipping past this point'." "Based on the information provided to me by Commins Hendriks Solicitors and my knowledge and experience as a former successful show competitor it is my opinion that if the Wagga Wagga Show Society had undertaken these normal safety precautions to have stewards/marshalls at the key point of the showground being the point of entry from the trotting track and the warm up/marshalling area, the incident which resulted in catastrophic injuries to Mrs Kerrie Anne Menz would have been avoided."
10. The primary judge regarded the objections as essentially boiling down to two matters: that Ms Smyth was not properly qualified to opine in respect of legal issues or matters not based upon her specialised knowledge.
11. The primary judge referred to the requirement that an opinion, in order to comply with s 79 of the Evidence Act 1995 (NSW), must be based on the expert's specialised knowledge, and relied on Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32], HG v R (1999) 197 CLR 414; [1999] HCA 2 at [44] and Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146; [2000] FCA 1463 at [23]. I did not understand there to have been any dispute as to the applicable principles.
12. His Honour's dispositive reasoning was at [38]-[39]: "In the present case the specialised knowledge of Mrs Smyth is as I have outlined it. In my view, the opinions to which objection has been taken go substantially beyond her area of expertise. The report discloses nothing in terms of training, study or experience in, or specialised knowledge of, the organisation and staffing of agricultural shows, or the behaviour of children. Moreover, there is no exposition of any reasoning process which demonstrates that the opinions to which objection has been taken are based upon any specialised knowledge. That, in my view, is because the specialised knowledge which would allow a witness to express such opinions is not knowledge which Mrs Smyth possesses."
13. His Honour proceeded to reject an application to adduce oral evidence from Ms Smyth, but the appeal did not extend to a challenge to that point of practice and procedure.
14. It was common ground in the submissions that Ms Menz required leave to appeal from the interlocutory decision excluding much of Ms Smyth's report. I am far from sure that that is so. Interlocutory decisions which affect the final result may generally be challenged as of right within an appeal brought from that final order: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [6]-[8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [78]. An interlocutory decision on liability where liability has been determined separately from and in advance of quantum is a familiar example. The rejection of Ms Menz's evidence at least arguably contributed to the judgment insofar as it was based on the rejection of her case of breach of duty.
15. Turning to the merits of this ground, Ms Menz submitted that Ms Smyth had long experience in competitive equestrian events, which in turn meant that she was "well qualified by her experience to express opinions on crowd management, the activities of stewards, and safety issues concerning horses in enclosures, in the context of a competitive equestrian event". The respondent acknowledged Ms Smyth's experience as a competitor and judge, but emphasised that she had never been a show society official or someone who had organised or been responsible for stewards, so that "all she was doing was giving evidence about what she'd seen at various shows over the years".
16. I think the primary judge was right to exclude Ms Smyth's evidence, essentially for the reasons his Honour gave. I put to one side the fact that she gave opinions of the ultimate legal issue; that is not sufficient of itself to render her opinion inadmissible: Evidence Act, s 80. The difficulties are twofold. Ms Smyth's report did not explain how her opinions derived from her specialised knowledge. Nor did it provide an explanation of the reasoning process underlying her conclusions that marshals should have been present, children should have been excluded, or prevented from making noise, and the like.
17. It is one thing to have seen, in the course of competing over many years, how many stewards and marshals are found at a range of agricultural shows, large and small, and where they are located. It is another thing entirely to determine the number of stewards and marshals required on 27 and 28 September 2012 and where they should have been located on those days.
18. Further, in answer to each question, Ms Smyth expressed the opinion that the presence of stewards or marshals was essential or appropriate. Why? Why should steps have been taken to place one or more marshals in the warm-up area, as opposed to the other areas? Was that because they were more likely to be congested at that time of day? It seems reasonable to assume that if there was a need for marshals there, there was also a need for them to be elsewhere (near the laneways separating the rings, at the entrance by the float, where presumably horses and their riders would be proceeding in different directions). But there is no analysis of the relative need for stewards or marshals at the various areas on which horses were to be found on the day, or an appreciation of the fact that a marshal located in one position is one fewer marshal available for duties elsewhere. There was no analysis of how many marshals were available, or were required, or indeed of how many horses there were at any one time in any of the areas inside the greyhound track during the show.
19. In order to comply with s 79, an expert's opinion should expose his or her reasoning in a way that shows that it is based on particular specialised knowledge: Rolleston v Insurance Australia Ltd [2017] NSWCA 168 at [6] and [32]. The requirement that an opinion be based on specialised knowledge is normally satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached: Roads and Maritime Services v Grant [2015] NSWCA 138 at [131]. I have reproduced fully the passages in the report which were rejected, because they are, with respect, devoid of any process of reasoning, as opposed to statement of the conclusion.
20. This ground is not made out.

The challenge to the common law claim

1. The reasonable steps of which s 5B(1)(c) speaks must be assessed prospectively. The children were located near the vehicular entry on 28 September 2012, but might be expected to be anywhere in the showground and potentially making noise. Stationing a single marshal near where the children actually were on 28 September 2012 would not prevent children from behaving identically somewhere else in the vicinity of the greyhound track; cf the reasoning in Streller v Albury City Council at [65]-[67].
2. It follows that it is not sufficient to conclude that a reasonable person in the position of the respondent would have taken a marshal or steward from somewhere else on the site (or found another volunteer if one could be found) and placed him or her near the vehicular entrance. Indeed, it is not entirely clear what the reasonable precautions are for which the plaintiff contended, other than to have sufficient stewards and marshals in the warm-up area to prevent unsupervised children from making unexpected noises.
3. Further, a horse could be spooked by a dog barking or a car backfiring. Still further, the horses were being warmed up to compete in rings or in the show-jumping area before a crowd of people who would not be expected to be silent and motionless. The presence of additional stewards or marshals might reduce some of the stimuli which might spook horses, but could not reduce them all. That is something to be borne in mind when determining whether a reasonable person would have taken precautions.
4. The appellant's written submissions included: "The risk could have been avoided by the Show exercising proper control of the perimeter adjacent to the warm up ring by either preventing access to the children, or removing them in the 15 minute period between when they first started playing on the fence, and when the[y] generated the noise that caused the appellant's horse to fall."
5. But that falls far short of establishing prospectively that a reasonable person in the position of the respondent would have taken those precautions.
6. A more persuasive submission was made orally. Mr Jackson QC recognised that there were some things which the occupier of the showground could not control (such as paper or some noises), but maintained that that was not a reason why no steps should have been taken to address the risk of harm posed by things which it could control (such as unsupervised children near the warm-up area). I would accept the submission so far as it goes. Yet I remain unpersuaded that the appellant has demonstrated that it was reasonable to station sufficient stewards or marshals on the day to prevent children making inappropriate noises so as to prevent horses being warmed up from being spooked by them. The difficulty is one of evidence. I pass over a dispute as to the precise delineation of the warm-up area (which, according to Ms MacDonald was substantially larger than was indicated in dark pen on the aerial photograph) and an absence of any precise evidence of its dimensions. How many horses competed at the show? How many horses might be expected at any one time in the rings and in the warm-up area? How congested were the warm-up area and the laneways? Were there any stewards or marshals at the float next to the entrance through which all riders and horses had to pass? How many stewards or marshals were in fact available to show organisers that morning? The evidence, so far as I can see, did not answer any of those questions. Certainly, the parties' written and oral submissions did not point to any such evidence.
7. The plaintiff bore the onus of establishing breach. It seems that the case was run without evidence of the matters to which s 5B(2) requires regard to be had before concluding that a reasonable defendant would have taken further precautions. The defendant appears to have provided balance sheets and perhaps other financial documents to the plaintiff but, following concessions that the activities were in trade or commerce and that the organisers were volunteers, those documents were not tendered.
8. In writing, but not orally, the appellant complained that the primary judge had failed to apply "the rule in Jones v Dunkel" and failed to draw an inference from the failure of the respondent to call its expert evidence on liability following the rejection of Ms Smyth's report. I put to one side the problematic formulation of a "rule" derived from that decision about a jury direction (the point made by Basten JA in RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 at [19]-[21] and Ward JA in Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd [2017] NSWCA 99; 18 BPR 36683 at [174]). The gravamen of this ground is that the judge should have come to the opposite conclusion on s 5B(1)(c). The appellant's written submissions (which were signed by Mr Jackson's predecessor) pointed to the findings at [108]-[110] that acceptance of Ms Menz's case would have required a large number of marshals on the day and the burden of taking precautions was significant, and the conclusion that s 5B(1)(c) was not made out. It was then said that: "There was no evidence in support of these findings. Further, the failure of the respondent to call its expert on liability leads to the inference that its evidence would not have assisted the respondent on any of these points. In the absence of any evidence on these points, due to the inadmissibility of the appellant's expert witness and the respondent's failure to call its expert, the judge below should have found, applying Jones v Dunkel, that the appellant had made out her case on these points."
9. The background to this ground was as follows. After the successful objection, Ms Smyth was not required for cross-examination and the defendant called no witnesses on liability. Mr Sexton conceded that his client had obtained an expert's report which had been served but was not read, but maintained to the primary judge that no inference could be drawn as to the expert's qualifications and whether the report was in admissible terms.
10. It is sufficient for present purposes to state that even if an inference were available, the inference was only that the respondent's case would not have been assisted by that report. Ward JA said in Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd at [174] that: "It does not permit the Court to infer that the uncalled evidence or missing material would not have assisted or was in fact damaging to the case of the party who did not call the evidence. Nor does it permit a choice between two guesses or conjectures or supply missing gaps in evidence."
11. Thus, nothing in Jones v Dunkel could fill gaps in the appellant's case, including in relation to s 5B(1)(c), nor could it be inferred that the respondent's case would be damaged by the report. Ms Menz's submission is contradictory to well settled principle. It follows that this ground cannot alter the outcome of the appeal.

The risk warning

1. On 27 September 2012, the first day of the show, the plaintiff signed the following form: "Agricultural Societies Council of New South Wales Incorporated Participants Indemnity and Waiver RISK WARNING - HORSES The Agricultural Societies Council of New South Wales advises that the participation, including passive participation, in events or activities at an agricultural show contains elements of risk, both obvious and inherent. The risks involved may result in property damage and/or personal injury including death. 1. I the signatory acknowledge, agree and understand that participation, including passive participation, in events and activities at this, or at any show contains an element of risk of injury and I agree that I undertake any such risk voluntarily of my own free will and at my own risk. 2. I the signatory acknowledge, agree and understand that the risk warning at the top of this form constitutes a 'risk warning', for the purposes of Division 5 of the Civil Liability Act 2002 (NSW). 3. I the signatory acknowledge the risk referred to above and agree to waive any and all rights that I, or any other person claiming through me, may have against the Wagga Wagga Show Society in relation to any loss or injury (including death) that is suffered by me as a result of my participation in this show/event. The signatory must continually indemnify the Wagga Wagga Show Society on a full indemnity basis against any claim or proceeding that is made, threatened or commenced and any liability, loss (including consequential loss and loss of profits), damages or expense (including legal costs on a full indemnity basis) that the Wagga Wagga Show Society incurs or suffers, as a direct or indirect result of the undersigned's participation in any event held by the Wagga Wagga Show Society." (emphasis original)
2. After expressing a conclusion based on s 5B(1)(c), the primary judge turned to that warning, stating: "It is also relevant to bear in mind the terms of the risk waiver which the defendant required each competitor to sign. I accept the submission of senior counsel for the defendant that a reasonable response on the part of the defendant in the present [case] was to make it clear to those who wished to compete, through the risk warning, that it would not be liable for any injury."
3. I respectfully disagree with that aspect of the reasoning of the primary judge.
4. The document purported to be a risk warning. It included an acknowledgement by the signatory that "the risk warning at the top of this form constitutes a 'risk warning', for the purposes of Division 5 of the Civil Liability Act 2002 (NSW)". Section 5M(1) provides: "A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff."
5. An effective risk warning which engages s 5M has the effect that the defendant does not owe a duty of care to a person who engages in the activity in respect of that risk. There is good reason to doubt the efficacy of the risk warning in this case, in part because of the generality of the description of the risk, which may fall short of satisfying the requirement in s 5M(5) to warn "of the general nature of the particular risk", and perhaps also because it has not been shown that the Agricultural Societies Council of New South Wales Incorporated was acting on behalf of the respondent, as required by s 5M(6). But s 5M was abandoned as a defence to the claim in negligence, and all that is of present concern is its impact upon s 5B(1)(c).
6. Mr Jackson submitted that "it seems a rather bizarre thing to say that a warning of risk is a precaution against the risk: warning of risk to someone is a precaution against the risk of harm". The point was not addressed in the respondent's written submissions, but was defended orally thus: "I don't disavow the submission that I made below which was the circumstances where the risk of harm is a risk of a horse shying. This is a voluntary recreational activity. Nobody is forcing the appellant to engage in this activity. It's a matter of choice for her whether she participates in something she obviously loved doing, riding horses, but nevertheless she was not a school child or an employee being directed to do something. So that in circumstances where the risk of harm is that of a horse responding to external stimuli and there are so many different things which may cause a horse to shy or bolt or fall over, as this horse did. A reasonable response to the defendant seeing that foreseeable risk is to say to people 'this is a risk, it's up to you' as distinct from finding 1001 volunteer marshals to attempt to take care of any possible external stimuli. This is not an organisation which is engaged in making large profits from encouraging people to participate in apparently safe but risky recreational activities. It's a show society manned by volunteers who are trying to provide something for people who like to do something even though they know it can be risky. So yes, it's a reasonable response to point out to people just in case they need it reinforced that what they're going to do does have risks involved."
7. I accept the appellant's submission. Section 5M subtracts from the defendant's duty. Section 5B(1)(c) presupposes the defendant owed a duty of care, and identifies a necessary condition of the defendant being negligent in failing to take precautions against a risk of harm. If a risk warning is effective, no duty of care is relevantly owed. If a risk warning is ineffective, it seems strained to say that a reasonable precaution against a risk of harm is to force a participant to sign a form. The "precautions" of which s 5B(1)(c) speaks are things which will avoid or reduce the risk of harm, like requiring the plaintiff to wear a helmet. True it is that precautions may include placing a sign (say, near a treacherous cliff edge) to draw a risk to the attention of the public, but that is not the present case. The risk warning in the present case was not so much directed to informing competitors of danger, but extracting from them an acknowledgement of voluntariness and an indemnity.
8. However, while I respectfully do not agree with this aspect of his Honour's reasoning, I agree with his conclusion that s 5B(1)(c) was not satisfied. The result is that the claim in negligence was correctly dismissed.

Orders

1. For those reasons, the appeal should be dismissed. Costs should follow the event. Special costs orders were made by the primary judge by reason of a series of offers of compromise; if there is a basis for a special costs order in this Court, application should be made within the 14 days specified by UCPR r 36.16. An order should also be made dismissing the separate summons seeking leave to appeal from the costs orders at first instance, which was abandoned at the hearing.
2. I propose these orders: In proceeding 2019/180935, appeal dismissed with costs. In proceeding 2020/45410, summons dismissed with costs.
3. PAYNE JA: I agree with Leeming JA.
4. WHITE JA: I agree with Leeming JA.

Amendments 21 April 2020 - Cover sheet: Representation: Respondent Solicitors corrected to "HWL Ebsworth Lawyers" 27 April 2020 - [20]: "5F Meaning of 'obvious risk'" and "5K Definitions" changed to bold type. [44]: "inclusive definition of that definition" changed to "inclusive definition of that term". 01 March 2021 - [6] - "show ground" changed to "showground". [11] - "sideways on the ground" changed to "sideways onto the ground" in the quote. [11] - "hands on the reins" changed to "hands out on the reins" in the quote. [22] - "horse as a powerful animal" changed to "horse [is] a powerful animal" in the quote. [23] - "Ohlstein v E & T Lloyd t/as Otford Farm Rides" changed to "Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides". [23] - "Ms Macdonald's horse" changed to "Ms MacDonald's horse" in the quote. [52(3)] - "Mooney at [67]" changed to "Mooney … at [67]". [76] - "spot-lighting" changed to "spotlighting". [88] - "the the relevant recreational" changed to "the relevant recreational". [110] - "show ground" changed to "showground". [115] - "Ms Macdonald" changed to "Ms MacDonald". [124] - "purposes [of] Division 5" changed to "purposes of Division 5". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2021