Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd

Evidence of the plaintiff, Emily Tapp

1. Emily's evidence in chief was largely given via her statements of 18 December 2013, 31 March 2017 and 25 May 2017. It was augmented by short oral evidence addressing her activities, achievements and living arrangements since May 2017 as well as some evidence regarding her current psychological state, and her plans for the future.
2. Emily is the youngest child of Ben and Traci Tapp. She was born in Brisbane and initially educated by the Katherine School of the Air by correspondence, then went to Emu Creek State School in Queensland and then St Joseph's Catholic College in Katherine as a day student. She later attended Fairholme College in Toowoomba as a boarder.
3. Her parents separated and she stayed with her mother in Warwick, Queensland or her father in the Northern Territory. She describes being a very active school pupil - swimming, playing soccer, futsal and tennis. She obtained a reasonable pass in her Queensland Tertiary Entrance Rank and was accepted to the Queensland University of Technology to undertake a Bachelor of Corporate Systems Management, intending to start in February 2011, however this accident intervened.
4. Emily had plans of completing her university degree and seeking a job in the financial sector with hopes of working overseas.
5. Emily had ridden horses from the age of five, living as she did on rural properties. She and her siblings had been involved in campdraft events from the time she was six. Starting with Pony Club, she worked her way up to junior campdraft events, and then juvenile campdraft events and had won many campdraft competitions. From the age of 12, between December to late January, she and her family travelled throughout New South Wales and Queensland to compete in the ABCRA and Australian Campdraft Association ("ACA") campdraft events and other campdraft events during other school holidays. She did well in these events, participating in about six campdraft events per year.

What is campdrafting?

1. Emily described campdrafting as follows: [1] "[20] Campdrafting is a sport involving a horse and rider working cattle. In a campdrafting competition, a rider on horseback rides into a 'camp' also known as a cut out yard which has six to eight head of cattle in it. Adjacent to the camp and separated by the cut out gate is the arena. In the camp, the rider must 'cut out' or separate one beast from the cattle in the camp and bring that beast to the front of the camp and back and forth across the cut yard at least two or three times to demonstrate to the judge the rider's control over the beast by keeping it from returning to the rest of the herd. The rider then calls for the cut out gate to the arena to be opened. The cut out is worth a maximum of 26 points. [21] The rider the proceeds to 'draft' or work the beast around two pegs in a figure eight course in the arena. A course can be set to the left or right. If it is set to the left, then once a beast has gone around the left peg, it must then be drafted around a peg to the right. Alternatively, if a course is set to the right, then the beast must go around the right peg first before being drafted around the left peg. Once that is completed, the rider then guides the steer through another 'gate' which consists of two pegs placed apart. Once gated, the campdraft is complete and the rider can be awarded up to a total of 100 points. Points are awarded for horsemanship and control of the beast with set time limits (usually 45 to 47 seconds). To the best of my recollection, the Ellerston Campdraft arena was a left hand course, that is, the competitors had to go around the left peg first then the right peg. [22] There is no fixed score to qualify for the finals but it is usually the top 10% of competitors who qualify. However this varies depending on time constraints, cattle numbers and Committee discretion."
2. Darren Shorten, a Director of the Hunter Zone of the ABCRA at the time of the accident and the only lay witness called by the defendant outlined the sport of campdrafting in his statement of 30 November 2016 as follows: "[6] I am familiar with what is involved in competing in campdraft events. Campdrafting is competitive and involves riding a horse at high speed, often in a full gallop, around a course which has pegs. It involves the rider steering the horse around the course. There are a number of risks. The horse could fall by losing its footing or contacting the hooves of the animal being chased. The rider could lose balance and fall off. Horses can be unpredictable animals and so can the livestock which the riders chase in the events."
3. Although Mr Shorten was extensively cross-examined by senior counsel for the plaintiff about a number of aspects of his evidence, there was no challenge made to his description of the activity or its risks. Indeed the cross-examination [2] appeared to proceed on the basis that those assertions were accepted.
4. Emily's father Ben Tapp gave the following evidence about Emily's experience in campdraft: "[10] Emily was involved in campdrafting events since she was 6. We have been involved in campdrafting as a family for many years. I, my former wife and all my children would participate in campdrafting events. Emily had been riding horses since she was 5 starting with pony clubs and then working up to campdrafting events. She would compete in junior campdrafting events run by the Northern Territory Campdrafting Association and ACA [Australian Campdraft Association]. She was a very able horse rider and competitor. She won a number of trophies and ribbons. Emily won her first Junior competition at about age 8. [11] From about the age of 12, from January to March, Emily, Courtney, Lynton and I would travel throughout NSW to participate in the ABCRA campdrafting events. Also if there were campdraft events during the school holidays they would often participate. Emily did well at these events. In the Northern Territory, because of the heat, there were not as many campdrafting events as Southern Queensland or New South Wales. As a family we would travel to approximately 4 or 5 campdraft competitions a year. Emily excelled at them. Her work on the farm was her "training" for the competitions. [12] Once Emily started boarding school, she commenced participating in a lot of sports at school. She was very active. She still remained heavily involved in the campdraft events, it continued to be the sport that she was most interest [sic] in, however enjoyed participating in all sports when at school."

Preparation by Emily and family for the Ellerston Campdraft

1. Emily and her sister Courtney had nominated in the Ladies' Campdraft for Ellerston and that Emily was going to compete on two horses, Xena Lena and Chiquita. A few weeks before the Ellerston Campdraft, Emily said that Courtney had "downloaded the entry form from the website and completed it for herself, Emily and her father", and that they each signed the entry form and it was then emailed to the defendant and the entry fee was paid by credit card. Courtney did not give evidence to that effect in her statement or in her oral evidence. She did however agree that she sent the email to Ms Shorten and knew Ms Shorten was the "Secretary of the Ellerston Campdraft". [3] Emily's evidence about this seems to be mistaken, and the "contract case" made on her behalf did not proceed on the basis of this assertion.
2. It was the plaintiff's case that the relevant "contract" between Emily and the defendant comprised the email of Courtney to Leanne Shorten dated 17 December 2010, nominating various horses for the novice, open ladies and restricted open categories and to "please let us know payment details." Emily gave evidence that her understanding was that her father paid her entry fees for the ladies and the open. [4] Emily's father said he paid in cash to the "Secretary's Box" on Thursday 6 January 2011 at Ellerston. [5] He could not recall if he paid a male or female, or what the organisation was he paid the money to - he "just assumed [it was] whoever is running that event there". [6]
3. In evidence, annexed to a statement of Craig Young (Executive Officer of ABCRA since October 2017), [7] was a document he identified as a copy of Emily Tapp's membership form obtained from the ABCRA records. This document is annotated on the first page with the name, address, phone number and the date of birth of Emily, and under the heading "Office Use Only" there is reference to an amount paid of $166 by credit card on 29 October 2010.
4. On what appears to have been the second page of that form, headed "Liability Waiver Form" is a signature which Emily identified in her evidence as her signature. The form seems to be dated 27 December 2010 (although the date is overwritten and hard to read). Emily's full name and address in the Northern Territory is also on the form.
5. There was cross-examination about this form, its significance, and Emily's understanding of it when she signed it. Her evidence on this issue was somewhat halting and there were a number of long pauses before questions were answered: "Q. Whatever be the case you knew full well that you had to sign the waiver to become a member? A. Yes. Q. You knew that there would be legal consequences of filling out signing a form didn't you? A. If I broke any of the rules, yes. Q. You knew that this was a necessary, a compulsory part of you being a member of the ABCRA? A. Yes. Q. You were willing to comply with that requirement to become a member of the ABCRA? A. Yes." [8] Later: "Q. You must have been aware that you were being asked to sign it for a particular purpose? Are you going to answer that? I'll ask it again. You must have been aware that you were going to sign it for a particular purpose? A. Yes. To become a member of the ABCRA. Q. You knew that if you did not sign it you could not become a member? A. Yes. Q. You must have known then it was important? A. Yes. Q. You must have known that it was important to you? A. Yes. Q. By saying it you're indicating you agreed with its terms? A. Yes. Q. Whether you read them or not you knew by signing it you were telling the ABCRA you agreed with its terms? A. Yes." [9] And later: "Q. You read you believe the words liability waiver form, you just said that. The question will not go away I'm afraid, will you answer it please. You just told her Honour that you believe you read the words liability waiver form, remember saying that? A. Yes. Q. You knew the substance of what it was you were signing? A. Yes. Q. You knew that the liability waiver was directed at the ABCRA? A. Yes, because I wanted to become a member." [10] And later: "Q. Now thinking about it today, you don't need to remember this as you're sitting there, you know that by waiving liability you were giving up rights to sue the ABCRA? Will you answer that question? A. In the present moment, yes I understand what the liability waiver. Q. That's the only meaning which could be given to those words? A. Yeah. Q. You knew when you executed that form you were giving up your rights to sue the ABCRA didn't you? Didn't you, would you please answer the question? A. Yes, I signed the liability waiver. Q. I'm afraid that's not an answer to my question. By signing the liability waiver you knew you were giving up your rights to sue the ABCRA didn't you? A. I was aware I would be giving up some rights to what extent I was personally unaware of at the time. Now that I'm reading the document I'm aware." [11] And finally: "Q. If you'd read that document you would have known that you've surrendered the ability to sue the ABCRA? A. Yes." [12]
6. The waiver is annexed to this judgment, and its contents are significant to the determination of this case. It is headed "LIABILITY WAIVER FORM" and the defendant relies on its full terms and effect, however I extract the following part of it for direct examination here. Under the heading "EXCLUSION OF CERTAIN RIGHTS TO SUE" the following appears: "The purpose of this agreement is to exclude liability of the Provider for any personal injury or death to the Participant and other people in the care and control of the Participant however caused, who signed this form as acknowledgement of the terms and conditions of this agreement. By signing this form you are waiving your rights to sue the Provider for losses relating to personal injury or death arising from the provision of Recreational Services to you and your participation in the event, activity or competition (hereafter referred to as "the recreational activity")..." "Recreational Services" in the waiver includes campdraft.
7. Emily said that she travelled to Ellerston with her sister Courtney and a family friend, Mr Underwood. This was the first time that she had competed at Ellerston. She arrived late Friday afternoon, 7 January 2011. Her father had arrived a few days earlier with the horses.
8. On Saturday 8 January 2011, Emily watched her father and had two runs herself in the Ladies' Campdraft. Just after the Open campdraft commenced at about 5pm on Saturday 8 January 2011, her father offered her his place in the Open campdraft, riding on his horse, Xena Lena. This was able to be done without needing a fresh entry form. Emily said that she had ridden Xena Lena on many occasions, recreationally and at campdrafts, and had ridden her the previous weekend at another campdraft competition.
9. Emily described warming up the horse and returning to the arena area but she was too early and so left again to go to a grassy area about 200-250 metres away. She says that when she returned to the camp, she realised the event was delayed because no one was competing in the cut-out yard or arena, but she had not heard any announcement describing why there was the delay.
10. Emily waited for about five minutes and then the event recommenced. In her statement dated 18 December 2013 she set out events this way: "[28] … I waited for the judge to announce that I could start my run. My horse and I entered the camp and we were able to cut out a beast and turn it two or three times in the camp. I then called for the cut out gates to be opened to enter the arena. There was a peg on my right and one on my left. I had moved forward and was turning to the left on the other side of the left peg. My horse went from a short trot to a canter once outside of the camp gates. I was seated in the centre of the saddle. When I rode on my horse in the camp, I felt that there was good traction but as I came to do the figure 8 area the ground felt heavy and my horse struggled to get a proper stride. My horse could not get her next stride and she went down on her front that is, she fell straight in a direct line and then we both slid onto the ground. She got up after about 15 seconds and I tried to get up and could not. I was in excruciating pain in my chest but realised that I could not move my legs." (Emphasis added).
11. The description given in her second statement of 25 May 2017 differed slightly: "[21] …I was seated in the centre of the saddle. [22] I was about half way around the first peg on an arch when I felt my horse's front legs slide from beneath me and slide toward the right. My horse went down onto her front and both my horse and myself landed on the ground. My horse got up after about 15 seconds. I tried to get up but could not…" (Emphasis added).
12. Nothing rests on these differently worded descriptions in my view.
13. Courtney gave a description of what she saw of the moments preceding the fall: [13] "[22] She did her cut out and came out of the camp and started her run. She was going on the top side of her first peg. She was manoeuvring the horse in a sweeping arc-like motion. I was about 70 metres away watching her and could see she had the horse under control. I had a very good line of sight and was sitting next to Hugh Miles and his Canadian friend. [23] I remember the horse looked like its front legs slide from under it and the horse and Emily fell."
14. Emily's father, Ben Tapp, describes what he saw: [14] "[18] At the time of Emily's run, I was about 70 metres away watching her. She did her cut out and came out of the camp and started her run. She was going on the bottom side of her first peg. As best as I could tell, the horse and Emily fell because the front legs of the horse slid from beneath it."

Defendant's preparation, the weather and ground conditions

1. The ABCRA is a corporate entity for overall control of the sport of campdrafting. According to its Memorandum of Association, [15] the objects for which the association is established include relevantly "to encourage, foster and promote campdrafting and rodeos in Australia; to promote friendship and good fellowship amongst persons interested in campdrafting and rodeos; to coordinate and assist all organisations conducting campdrafts and rodeos in Australia; to assist generally in the promotion, conduct and propagation of camp drafting and rodeos in Australia and to assist in obtaining uniformity of rules and standards of the sports of campdrafting, rodeos and other sports involving horsemanship conducted at rodeos in Australia".
2. Paragraph 4 of the Memorandum of Association makes it clear that the ABCRA is designed to be not-for-profit: "[4] The income and property the Association, whencesoever derived, shall be applied solely towards the promotion of the objects of the Association set forth in this Memorandum of Association; and no portion thereof shall be paid or transferred, directly or indirectly, by way of dividend, bonus or otherwise howsoever by way of profit to the members of the Association…"
3. Craig Young, the executive officer of the ABCRA since October 2017 confirmed that the ABCRA is a not-for-profit organisation: [16] "[3] ... Any profits are not distributed to members. They are applied either towards programs or other initiatives for the organisation or in some cases to charity. This was the position as at January 2011."
4. Craig Young also explained [17] that in the relevant financial year (and afterwards) the ABCRA did employ a number of staff carrying out administrative roles and they were paid a salary by the ABCRA. The executive officer, receptionists, events administrators and marketing and accounts officers were paid.
5. Relevantly to the volunteers defence raised in the proceedings Mr Young stated: "[8] None of the people who were on any of the District Committees or who filled the Committee positions for the ABCRA or who are directors for the ABCRA zones have been paid any salary, fees or honorariums at any time by the ABCRA. The ABCRA did not in 2010/2011 or in any other time pay any fee, salary or honorarium to Leanne Shorten, Darren Shorten, Allan Young, Albert Wayne Smith, Scott Mitchell, Jack Callinan and Colin Jack Gallagher."
6. Mr Young was not cross-examined and his statement was admitted without objection.
7. Darren Shorten was the only witness who gave oral evidence for the ABCRA. He was director of the Hunter Zone of the ABCRA. He described that as an honorary position. [18] He was employed as assistant pastoral manager at the Ellerston Station but in performing his role for Ellerston District Sports Club he was not paid any fee or salary and the position was voluntary. He said that any profits are not distributed to members and would be donated to charity. [19]
8. The role of the Ellerston District Sports Club was to coordinate and conduct carnivals and rodeos affiliated with the ABCRA and to assist the competitors and to encourage amateur and novice sportsmen in camp-drafting, rough-riding and horsemanship generally. [20]
9. Object 2.4 of the Constitution states: "To observe and uphold the Rules and Constitution of the Australian Bushmen's Carnival Association" (The Australian Bushmen's Carnival Association was the precursor to the ABCRA).
10. Ellerston is in the Hunter Valley and the campdraft event is held once a year on a property known as Belmont. Mr Shorten said that there was limited advertising about the event, that it was a very popular event and the open date for entries was 13 December 2010.
11. Mr Tapp gave evidence that when he arrived on the Wednesday before the event (5 January 2011) it was wet and that it had rained the day before the day of the accident (7 January 2011), but on Saturday, the sun was out. [21]
12. Mr Shorten's evidence regarding the preparation of the surface for the arena and its state on the first day of the campdrafting event - 7 January 2011 - was as follows: [22] "[12] Leading up to the campdraft event in January 2011, I helped in the preparation of the grounds to make sure they were neat and tidy and ready to accommodate all of the competitors. I did not do any actual work on the arena. That was all done by Jack Callinan and Scott Mitchell. [13] It is a requirement of the event that a Hazard and Risk Assessment be completed prior to an event, to ensure the accuracy of the information submitted to the ABCRA. At pages 7 to 10 of this Evidentiary Statement is a true copy of the Hazard and Risk Assessment completed in the days prior to the event. [14] On the first day of the campdrafting event on 7 January 2011, I had two horses in the novice draft and also had one horse in the open for open draft. I did not think there was anything wrong with the surface. In fact I thought it was better than previous years, as it had a better ground covering and did not appear to be as dusty. There was moisture in the topsoil, but it was not wet."
13. The Ellerston District Sport Club Incident Report - 12 January 2011, also notes as the first bullet point: "Ground Preparation - Renovated with Hunter Zone ABCRA Renovator 27th October 2010, 30th December 2010, 7am Friday 7th January 2011, 6.00pm Friday 7th January 2011."
14. Annexed to his statement was the ABCRA Hazard and Risk Assessment form which Mr Shorten stated was completed "in the days prior to the event". [23] It was tendered by the defendant (Exhibit 5) and has handwritten at the top "Ellerston District Sports Club".
15. During his oral evidence Mr Shorten confirmed, consistently with paragraph [10(a)] of the Amended Defence, that the Hazard and Risk Assessment form had been completed by Leanne Shorten. She was not called by the defendant to give evidence. It was clear however that Leanne Shorten was available to give evidence should the defendant have chosen to call her. She attended Court on 2 May 2018 pursuant to a subpoena issued by the plaintiff's solicitor however she was not called to give evidence for the plaintiff. At the request of senior counsel for the plaintiff, Ms Shorten was formally excused by the Court on that same day.
16. A submission was made by senior counsel for the plaintiff, Mr Bartley SC, that I should draw a Jones v Dunkel [24] inference from the absence of any evidence from Ms Shorten (and a list of others). This is a matter to which I will return, but I note persuasive submissions from counsel for the defendant explained why I should draw no such inference.
17. The Hazard and Risk Assessment form addressed a number of parameters including "Ground surface". The "Risk" column in respect of that item has typewritten on the form "Injury to spectators and competitors". In the column headed "Risk Level" the letter "L" is handwritten. The same letter is written in respect of each parameter in the four page document. Handwritten in the column headed "Controls" for the "ground surface" parameter is the following: "ground maintenance carried out prior to event".
18. Mr Shorten included the following detail in his statement: [25] "[16] After the events had finished on the Friday night the committee got together, that is, Jack Callinan, myself, Morris Mitchell and Scott Mitchell. There were also a number of others. We decided to renovate the arena again, just to keep it nice and soft and competitive. There had been no complaints on the Friday to me or anyone else which I knew of about any problems with the surface of the arena."
19. Mr Shorten noted in his statement that previous campdrafts before 2010 had been only over two days and this campdraft was to be over three days. He stated that the "fact of this extra day was one of the reasons raised in the discussion about renovating the ground." [26]

The ABCRA Rule Book

1. The ABCRA Rule Book was tendered by the plaintiff. The "index" shows a general section, there was a significant part devoted to rodeo rules and then a smaller part devoted to campdraft. The parts relied upon by the plaintiff were: "Committee Rules Com.15. Campdrafting … 5. The Arena surface MUST be safe, being either ploughed or soft surface (sand or loam) arena. ATTENTION MUST BE GIVEN TO ARENA SURFACES." and "Risk Management General requirements for all events 6. Committees … 5. All accidents (physical injuries), or serious incidents where there is no actual physical injury, and incidents which may have the potential for psychological trauma (e.g a horse bolting), that are brought to the attention of staff or that require treatment by staff are to be recorded in an incident report. 6. Incident reports are to be reviewed and actions taken are to be recorded. Incident reports and reviews are to be retained for a minimum of seven years. … 9. Committees 1. Where adverse environmental conditions occur a 'grounds officer' must decide on changes to the program, to ensure activities can continue without significantly increasing the risks of injuries to either horses or riders. eg. Temperatures over 40°C or below 5°C, Dust storms, Fog or rain sufficiently heavy to cause the surface to become slippery with standing water. 2. Each event must have a judge responsible for control of, horses and cattle in the arena and for determining questions or disputes arising from conduct in the arenas or for the condition of the arenas. 10. Other requirements 1. Each event should appoint a risk manager to evaluate the risks to the event and institute appropriate measures to control the risks. (Using the requirements in this Code as a starting point). …"

Evidence of events on Saturday 8 January 2011 led by the defendant

1. As stated in the Amended Defence and Mr Shorten's evidence, the arena "was renovated by running a tractor with a renovator or aerator attached to it over the surface". The evidence establishes this was done prior to and after competition on Friday 7 January 2011.
2. Mr Shorten said that he competed on Saturday 8 January 2011 in the maiden draft, and one of his sons competed in the juvenile draft and his other son in the maiden draft. His wife Leanne won the first round of the ladies and had another horse in the final. He said in his oral evidence that he would not have allowed them to compete if he thought the ground was not safe [27] and nor would he have competed himself if he thought the ground was unsafe. [28]
3. The open draft started around mid-afternoon on the Saturday. Mr Shorten described this as "…open for novice and open horses only. A novice horse is a horse that has won a maiden or a ladies draft and an open horse, a horse that has won an open draft or five novices. They are your elite class of horse in campdrafting." [29]
4. He described his first ride in the open draft (at number 17) and that he had no problems with the ground returned a good score of 88 but after completing the course "…he slackened off the reins, he relaxed the horse relaxed" and he fell onto his shoulder. He said he did not have another ride that day and that in his opinion, his fall had nothing to do with the surface. Mr Shorten's score of 88 for ride 17 of the open draft is recorded on Exhibit 9 which was described as "Open Draft Draw".
5. Mr Shorten then described the following events: "[23] Around mid-way through the open draft I was approached by John Stanton (John), a competitor. He said "I think the open draft should be stopped. The ground is getting a bit slippery". I said "I don't think that's fair because people have already competed and they have their scores and if the ground is better in the morning the people who have already ridden on the ground might not make the final and that's not fair". I had my arm in a sling at the time and he said "look at you" and I said "that's not fair it had nothing to do with the ground, it was my own stupid fault". [24] John then rode away. I approached Jack Gallagher the judge, and said "hold the event up, wait a minute". I then saw Allan Young, who is the Chairman of the Members Representative Council, and is also a board director of the ABCRA. I said "Stando doesn't think the ground is that good. I don't think it is too bad. What do you think?". Allan said "the surface is okay. Competitors need to ride to the condition of the ground". I said to Jack "what do you think". He said "yes, keep it going". I then told Jack Gallagher to resume the event. I did not think that the condition of the surface was such that the event should be cancelled. [25] I then returned to my truck. Before speaking to John Stanton again (see paragraph 20 below) I spoke to John, and two friends who were competing, Pat Gillis and Adam Sadler. I knew that they had fallen off their horses that day. Pat Gillis said "I left the camp and heard the judge say 22 so I tried to ride to get a good score and I rode too hard. I thought I had a chance of making the final". Pat Gillis did not blame the arena surface. Adam Sadler said "I am annoyed because I fell just before the gate which meant I didn't get a score". He didn't blame the surface for his fall. [26] I can't say how long after the first time John Stanton approached me, but he approached me a second time. This was after Jack Callinan had come to see me to see if I was alright. John approached me and said "I think you should do something about this event. I think the ground is unsafe". Jack Callinan and I walked around and told Jack Gallagher to pull the draft up for the moment. We then went over and spoke with Allan Young again and Wayne Smith, also a MRC board member. One or both of them said "the riders should ride to the conditions". Allan said "I think the arena surface is still alright". [27] I considered the condition of the ground. I had noticed that the surface was not wet, it was moist in parts. Dust was still flowing up. [28] I said to Allan and Wayne "we will announce that if competitors wanted to scratch they would get their full entry fee back or they could compete at their own risk". I then said to Jack Gallagher "we will continue but we will make an announcement that any competitor who wishes to withdraw can do so and they will get their money back". An announcement was then made over the loud speaker. The announcement was "Any rider who wishes to withdraw from the event can withdraw and they will get their money back or riders can compete at their own risk"."
6. A significant attack was made in cross examination upon Mr Shorten's evidence. That attack was successful in respect of the contents of the announcement made at the time, and a couple of other matters.
7. An earlier statement signed by Mr Shorten in May 2011 gave a different version from what was contained in his November 2016 statement in respect of two potentially significant matters.
8. The first was his description of the condition of the ground. In his May 2011 statement Mr Shorten had said: "[19] Through the day, and this is just nature, the heat from the sun has drawn up any moisture below the surface. The surface wasn't wet, it was moist in parts. Dust was still flowing up". However, in his statement dated 30 November 2016, established in cross-examination to have been prepared at his solicitor's office at that time, Mr Shorten left out the words "the heat from the sun has drawn up any moisture below the surface".
9. The second was that contrary to what Mr Shorten has said in paragraph [28] of his November 2016 statement set out above, in his May 2011 statement, Mr Shorten said: "[20] I made a suggestion to Allan and Wayne that we would announce that if competitors wanted to scratch they would get their full entry fee back or they could compete at their own risk. I told Jack Gallagher what the decision was. He was happy with the decision and an announcement was made over the loudspeaker. The announcement made no mention that riders should ride to the conditions, only that they could withdraw and have a full refund." (Emphasis added).
10. The only other version of the announcement made was one of the bullet points in the "Ellerston District Sports Club Incident Report" dated 12 January 2011: [30] "It was announced that the decision was made to continue but competitors were offered the choice to ride under the current conditions or scratch their nominations for a full entry fee refund."
11. This document was signed by Jack Callinan as President and Leanne Shorten as Secretary of the Ellerston District Sports Club respectively. What is meant by "ride under the conditions" was not explained by evidence from the authors of the Incident Report or by anyone else. The report does not purport on its face to quote the announcement made.
12. I do not rely on the Incident Report as evidence of the words spoken in the announcement. Neither Jack Callinan nor Leanne Shorten were called to give evidence, nor was any statement tendered from either person, despite the apparent relevance of the roles they performed. The person who actually made the announcement remains unclear although Mr Shorten said it may have been Jim Callinan or Des Collerson but he "didn't really know". [31]
13. I have concluded that Mr Shorten's first statement made at the time closer to the events is more likely to be accurate. He was not able to explain why he gave a different version of events in 2016 to that which he gave in 2011.
14. I am satisfied that no specific oral warning was given to Emily and no suggestion was made, by announcement or otherwise, that competitors "rode at their own risk". I conclude it is likely that what was announced was limited to an offer of a refund if riders chose not to compete.
15. I accept the evidence of Emily and her father, Ben Tapp, that they did not hear any announcement at that time. I accept that at the relevant time Emily was focusing on readying herself for the event, with the help of her father, in terms of beast selection. Mr Tapp clearly has a hearing impairment and with admirable frankness and directness, which was a feature of all of his evidence, he agreed that he may well not have heard any announcement because of his hearing impairment.
16. Even if, contrary to what I have found, an announcement was made, warning competitors to "ride at their own risk", this would not have been an adequate warning on its own in the circumstances given it was a campdrafting event during competition with evidence that people spread out to rest or warm up for their events. There is no evidence any announcement of that type would have been able to be heard by relevant competitors.
17. There was a submission made by Mr Bartley SC that I should not accept any evidence of Mr Shorten as his credibility was "in tatters". I do not accept that submission, but I do find that his change in position on the matters that changed in his later statement was not satisfactorily explained. I found Mr Shorten to be a genuine person who was flustered by the processes of cross-examination, but was doing his best to be truthful and to assist the Court.

Falls noted to have occurred before Emily's fall

1. Emily gave evidence that I accept, that she did not observe any falls and was unaware that there had been any falls during the open event.
2. The Incident Report refers to there having been "7 falls over the course of the day". The Amended Defence admits that there were falls at 6:14pm (Nick Clydsdale, draw number 65), 6:36pm (Pat Gillis, draw number 82) and 6:58pm (Brad Piggot, draw number 98).
3. Exhibit 9, which was the Open Draft Draw, has some handwritten timings on the right side of the page, the origins of which remain unexplained, but from the submissions from senior counsel for the plaintiff I understand these are identified as rides where the rider fell.
4. There are four noted before Emily's fall. The evidence is thus unclear about how many falls occurred overall and where they occurred. The only admissible account as to the reason(s) for one of the falls before Emily's is Mr Shorten's where he says that he fell after completing the course, because he slackened the reigns. There was limited information from Mr Shorten as to where he saw two other falls take place. [32] He said that he saw both Pat Gillis and Adam Sadler fall and that they were both in the arena when they fell; Sadler was coming towards the gate and Gillis was between the first and the second peg.
5. Photographs tendered - Exhibit O - were not sufficiently explained by evidence to allow me to draw any conclusion other than they show two men falling from their horses in what looks like an arena. They do not assist me in drawing any inference or any conclusion about relevant issues, other than that it is agreed they show two of the people who fell on that day.

i) Soil analysis

1. A report of Douglas Partners dated 26 November 2013 described a retainer to collect soil samples from the property "Belmont" on 30 October 2013. The site identified by the author of the report, Mr McFarlane, was "said to be" in a former campdraft arena located on the property situated on the western side of Hunter Road, about 700 metres north of the intersection with Tomaula Road, Ellerston. The relevant conclusions from the soil sampling seem to be that the soil on the top strata was silty clay described as "hard, dark brown silty clay of medium plasticity, trace fine sand and fine root hairs". In the next strata was clay, described as "hard, orange-brown clay of low plasticity, trace fine sand and gravel, root holes to 2mm diameter throughout." The evidence does not satisfactorily establish whether this was in fact the campdraft arena in 2011 and whether the soil has changed since then.
2. A report of Dr Gunnar Kirchhof, soil scientist, dated 8 February 2014 carried out an analysis of site topography from photographs taken by Douglas Partners, rainfall data he was given, and the soil data and soil samples collected. It assumes that: [33] "1. The topsoil is uniform to at least 30 centimetres depth and there is no difference in soil properties between 0-10cm where most trampling of animals is likely to occur, and 10-30cm depth. This assumption is probably fair as the analytical results from all 3 samples were similar. 2. The soil samples analysed are representative for the site where the accident occurred."
3. Dr Kirchhof noted that there was uncertainty or insufficient information of the method used to prepare the site prior to the campdrafting and on the night of 7 January 2011. Under the heading "Likely soil surface condition in relation to rainfall, cultivation and trampling", a heavily qualified opinion was given: [34] "Saturated soil has low bearing strength. The water content at saturation depends on bulk density. High bulk densities have higher hearing strength at saturation than low bulk densities. However, saturated soil is always more slippery than unsaturated soils…Because depth of wetting following the rainfall event on the 6 January and subsequent evaporation is not known, charts can be used to estimate the average approximate gravimetric water content as a functions of depth of wetting from the 31.6 mm rainfall event. This assumes that the rain that fell was evenly distributed in the wetted zone sometime after the rainfall event..." I interpolate here that no evidence was tendered supporting a "31.6 mm rainfall event" or when this was asserted to have occurred.
4. There is then a series of graphs which were not explained by any evidence. The validity or otherwise of the assumptions made remains unclear. In any event, the conclusion reached by Dr Kirchhof was so qualified that there is minimal, if any, assistance to be gained from his report, particularly noting the conclusion on the final page, under the heading "Uncertainties": [35] "The above descriptions are based many [sic] assumptions and are therefore only an indication of what could have happened."
5. I give both of the reports limited weight because assumptions based on specific rainfall measurements were not established on the evidence, and Mr Kirchhof's own heavily qualified conclusion. On the question relevant for my determination, the issue was whether the surface of the arena fitted the ABCRA Rule Book requirement of "safe, being either ploughed or soft surface (sand or loam) arena". It is accepted the arena was aerated but not ploughed until the day of Emily's fall, however what was meant in the Rules by "loam" remained unclear and general evidence from Mr Tapp that "Ellerston is rich black soil country" [36] tells me nothing relevant about the soil in the arena.

ii) Horses and horsemanship - Mr Doughty

1. It is common ground that Hunter Doughty was a very experienced person in horse-related pursuits and study. He holds a Graduate Diploma of Education as well as a Graduate Diploma in Applied Science (Agriculture, Equine), and a Master in Applied Science (Intensive Agriculture, Equine).
2. Whilst Mr Doughty's curriculum vitae outlined that he lectures in equestrian coaching, horse behaviour, equine locomotion and the equine industry (including ethics, risk management, responsible behaviour within the industry, and event organisation) nothing at all was said regarding organisation and/or management of campdrafting events or even competing at such events.
3. Mr Doughty's first report dated 28 November 2014 proceeded on a reading of various material, including the ABCRA Rules about which he makes certain interpretations. He concluded that the Rules require that there should have been a "Grounds Officer" appointed for the event whose primary concern is safety. He expressed concern that there was no grounds officer "identified in the documentation" and no person identified to take specific responsibility for the safety of the arena at the event. He described a grounds officer as being required to: "1. Prior to each class on each day inspect the arena conditions to determine their safety for competition. 2. Between classes maintain the arena surface if required to ensure that the surface was safe for the conduct of competition. 3. In the circumstance where the condition of the grounds surface had deteriorated during a class the competition should be halted and the arena surface returned to the standard required for safe completion prior to recommencing the competition. 4. Maintain a record of unsafe or deteriorating conditions and the methods used for arena preparation during the competition. 5. Ensure that the records kept by the Grounds Officer were kept by the organising committee for future use and reference for competitions conducted at the venue".
4. I interpolate that it is unclear on what basis he was appropriately briefed and qualified to reach the views he did as there was no evidence that he had ever organised or attended campdraft events, and his conclusion that the Rules demanded a devoted "grounds officer" that day is not supported by those Rules or any other document in evidence.
5. Relying upon the Incident Report, he concluded that at approximately 6:45pm the ground "had noticeably deteriorated" due to moisture and the environmental conditions at the time, to the extent that a judge of the junior campdraft and Director of the Hunter Zone, Mr Darren Shorten, discussed the condition of the ground with Mr Allan Young. Mr Doughty also assumed that there had been seven relevant falls prior to this discussion.
6. Mr Doughty then proceeds to assume that what is recorded in the Incident Report reflects that there was a decision made that the ground was "not safe", stating: [37] "The environment is either safe or it is not, in my experience there is no half safe. In this situation the committee have obviously identified the increased risk and chose not to implement any management of the problem until after the Emily Tapp accident, the 8th fall that occurred on the 8/1/2011."
7. Mr Doughty said: [38] "The seven reported falls on the 8/1/2011 prior to Emily Tapp's fall on a "better" arena surface should have enabled a responsible organising committee to foresee that if the environment of the competition was to deteriorate at all that the risk of additional falls and subsequent injury will significantly increase. Following the management of the arena surface on the morning of the 9/1/2011 no further falls were reported." (This also seems to be an incorrect assumption as the seven falls include Emily's).
8. Mr Doughty went on to make a number of other assumptions about the state of the ground without reference to a proper basis for those assumptions: [39] "In my opinion it would have been apparent to the Grounds Officer or organising committee that the ground was or becoming unsafe prior to and during the competition. The appearance of surface "standing" water on the arena, (surface layer completely saturated not just a puddle on top). Any surface conditions sufficient to make it difficult or impossible for a horse to maintain a regular gallop and perform balanced manoeuvres for example sticky, slippery or boggy surface, inconsistent surface depth, inconsistent surface material etc."
9. I interpolate here again, Mr Doughty has no basis to state there was "standing water" on the ground that would under the Rules activate the need for a grounds officer. Nor was there any reason to conclude that the note in the Incident Report that the ground "had noticeably deteriorated", meant that it was unsafe. The evidence is that 700 rides had occurred that day in the arena so it is unsurprising that the ground would have "deteriorated".
10. Mr Doughty went on to refer to the part of the Incident Report which refers to "seven falls over the course of 8 January" and that there were no falls on 9 January. He cross-referenced this statement to the document he refers to as the "an incomplete record of the Open Draft Draw" (Exhibit 9) which indicated to him only a total of 5 falls: "- Combination draw number 65 a "bad fall" at 6:14pm - Combination draw number 71 a "bad fall" at 6:22pm - Combination draw number 82 a "bad fail" at 6:36pm - Combination draw number 98 a "bad fail" at 6:58pm - Emily Tapp draw number 101 a "very bad fall"; - The time is not specified however horse draw 100 is recorded at 7:00pm"
11. He concluded that the Open Draft Draw shows four "bad falls" and Emily's "very bad fall" all occurred within approximately 50 minutes, between 6:14pm and 7:04pm when the competition was halted.
12. Mr Doughty concluded that the number and rate of falls "increased dramatically" in the hour prior to Emily Tapp's fall, and that, in his experience: "…the second fall, draw 71, 8 minutes after draw number 65, in such a short time frame would have been cause for concern and reason for close inspection and assessment of conditions, but definitely the third fall in 22 minutes (draw number 82, 6:36pm) would have been sufficient to halt the competition and instigate arena assessment and maintenance."
13. He concluded that the competition should have been suspended prior to Emily Tapp's fall.
14. In a supplementary report dated 28 May 2017, having been provided with a number of statements and some photographs, and a further evidentiary statement of Emily Tapp, Mr Doughty concluded, consistently with his first report, [40] "Had the committee acted upon the warnings provided directly by John Stanton and indirectly by the judge and suspended the competition, disc ploughed and harrowed the arena after the second or third fall in short succession, it is highly probably that Emily's horse would not have lost its footing and Emily and other riders would not have fallen."
15. In respect of the Hazard and Risk Assessment document referred to in paragraphs [46] and [48] of this judgment, Mr Doughty was asked to indicate whether the document showed an adequate hazard and risk assessment had been carried out on the arena surface. His reply was: [41] "The risk assessment document provided in relation to the Ellerston campdraft (January 2011) inadequate [sic] for activity. Each and every hazard that is identified at this campdraft is rated as L = Low risk, for each identified hazard the document does not record a single risk result, the column is blank. Equally the responsibility column is also completely blank indicating that no person or group of people has been allocated a task related to the management of any risk for the competition. This document indicates that there was no actual risk management procedure planned or implemented for the "ground surface" or "slip trip fall and knock" hazards during the event but ground maintenance of some sort was to be carried out prior to the event. There was no grounds officer appointed for the competition. In my opinion to rate every identified hazard as low risk in any competitive horse riding activity is in fact making no risk assessment at all."
16. Mr Doughty said in response to a question as to whether the arena should have been disc ploughed prior to the commencement of the competition and/or prior to the plaintiff's injury: [42] "Yes the arena should have been disc ploughed prior to the event and after Friday's competition prior to the commencement of Saturdays [sic] program." Mr Doughty goes on to describe: "Ploughing and aerating is a two stage process of turning the sod through ploughing and then levelling with an aerator or harrow to provide a light even surface on a suitable substructure to provide optimal grip by the horse and the cattle being drafted. The aerator used prior to the competition on Friday and after the competition on Friday evening was renovation or aeration only. That is a single operation that is designed to scuff the surface and aerate. Therefore the use of the renovator alone is not sufficient arena preparation considering the soil type at Ellerston."
17. In response to a question as to the importance of having a grounds officer appointed and present at the competition "as required by the Defendant's rule book", Mr Doughty said: [43] "It is my experience that an actual person an identified individual must be appointed so he/she accepts the considerable responsibility of the Grounds Officer. When a person accepts such a role they are aware they may have to justify decisions that they may be required to make. Records are maintained and recorded, risk management forms actions and recordings are taken seriously and it assists organising committees to develop a culture of continual improvement in safety and risk management. It is common practice in equestrian sports to have an allocated person with similar duties as a "grounds Officer" and that person must be independent of the organising committee and may not be involved in the event organisation in any other way. I think the independence of the ground officer is particularly important as the sole focus of this person is safety and risk management they are not conflicted by profits, sponsors or other matters that organising committees are involved with."
18. In terms of a suggestion that the plaintiff should have been provided with an opportunity to inspect the arena surface, Mr Doughty concluded that he "did not think the Plaintiff or any competitor should be put in a position of having to decide if the arena is safe to compete on or not; that is clearly the responsibility of the grounds officer and responsibility of an event organising committee." [44] Mr Doughty also noted that "it is a general expectation across sports that if the competition has not been halted, then the organising committee must think there is no significantly increased risk and it is safe to continue." [45]
19. Mr Doughty observed that given the circumstances that arose, "the plaintiff and remaining competitors should have at least been allowed the opportunity to examine the arena surface to allow an informed decision to be made." [46]
20. Ultimately, however, it is clear that Mr Doughty's view is that given the increased risk to competitors and horses, the competition should have been halted after the fall at 6.36pm at the latest.

Dangerous recreational activities

1. As was made clear in Goode v Angland [47] at [185] by Leeming JA, with whom Beazley P and Meagher JA agreed, a defence under s 5L: "is an example of a "liability-defeating rule" which is "external to the elements of the claimant's action" and thus a clear example of something properly regarded as a defence…there is much to be said…for dealing with the defence at the outset" (Citations omitted).
2. The defendant pleaded that it is not liable for any harm suffered by the plaintiff because her injuries were due to the materialisation of an obvious risk of a dangerous recreational activity. [48]

The relevant statutory provisions

1. Section 5L of CL 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.
2. The provisions of ss 5F and 5K are also relevant: 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.

Submissions of the plaintiff

1. Mr Bartley SC (correctly) emphasised that the defendant carries the onus of proof in relation to this defence. In the plaintiff's written submissions dated 30 August 2018 ("PWS"), a submission was initially made that "the evidence in the present case does not permit a finding of fact that the activity upon which the Plaintiff was engaged was "a recreational activity"." [49] This position was abandoned in oral submissions made on 10 October 2018. Argument was developed in the PWS that the evidence does not justify a finding that the activity of campdrafting was a "dangerous recreational activity". It was argued that it was "an activity directly related to the working role of horse and rider in mustering and handling cattle and in a "real life" situation". [50] In contrast, dressage for example, whilst it derived from the historical use of horses in a military context, could longer be said to be anything other than a recreational activity.
2. It was submitted that the evidence presented on the issue was "scant", and that: "Although the frequency or otherwise of injury in a particular activity is not necessarily definitive of whether there is "a significant risk of physical harm", the existence of a significant risk cannot, in the Plaintiff's submission, be simply a matter of presumption." [51] and so the defendant's case in relation to dangerous recreational activity "falls at the first hurdle". [52]
3. In respect of whether the harm Emily suffered was a result of the materialisation of an obvious risk of that activity, it was argued that: [53] "Whilst it is the case that some degree of negligence on the part of the Defendant does not remove a case from the category of "obvious risk"…it is not the law that the degree of negligence displayed by the Defendant in the present case should have been obvious to her."
4. It was argued that the following matters were not risks that would have been obvious to the plaintiff when she entered the arena to compete in the event. First, that the defendant would disregard its own safety requirements as to the ongoing maintenance of the arena; second, that the defendant allowed the event to continue notwithstanding the requests made by Mr Stanton; third, the defendant allowed the event to continue notwithstanding the concentration of falls which had occurred in a short time before the plaintiff entered the arena; and fourth, that the defendant would convey no information as to the state of the arena save for an offer that if persons did not wish to compete they could have a refund. [54] Accordingly, Emily's fall was not a materialisation of the known risks and the real risks, those listed, were not obvious.

Submissions of the defendant

1. Senior counsel for the defendant, Mr Watson SC, accepted that it carried the onus in respect of establishing this defence. Goode v Angland at [185] made clear that the proper approach to a claim where s 5L is raised as a defence is first, for that defence to be dealt with at the outset, and second, if it applies, it is an answer to the plaintiff's claim in both contract and tort.
2. The matters that need to be made out are first, the plaintiff was engaged in a recreational activity; second, that the recreational activity was a dangerous one (that is, one which involved a significant risk of physical harm (s 5K)); third, that there was a risk of that activity which was an obvious one (that is, a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff (s 5F)); and fourth, the harm suffered by the plaintiff was the result of the materialisation of that obvious risk. [55]
3. In order to construe s 5L in its proper context and having regard to the general purpose for which it was enacted, the Court may have regard to extrinsic materials.
4. Reference was made to the then Premier Mr Carr on 23 October 2002 having said in the context of the introduction of this part of the CL Act: "personal responsibility will rightly assume a much higher profile in our law thanks to these reforms" and "the insurance crisis served to highlight just how far the law has drifted away from the concept of personal responsibility." [56] There was also reference to Mr Carr's statements in the Second Reading Speech specifically about s 5L and related provisions: [57] "The bill will limit claims that arise from an inherent or obvious risk, or from the plaintiff's own contributory negligence. There will be a presumption that a person is aware of obvious risks, as was recommended in the Ipp report. Similarly, there will be no duty to warn of an obvious risk, providing that no written law requires such a warning in the particular case. Nor will there be any liability for the obvious risks of particularly dangerous sports and other risky activities."
5. To take this material into account is consistent with the approach of Leeming JA in Goode v Angland at [209].
6. This material provides clear guidance as to how s 5L and its related provisions must be construed to give effect to the general purpose and policy behind the provisions which was to make a very significant change to the law of negligence, the purpose of which is, in part, to exclude liability for claims arising from risky activities.
7. Recreational activity would plainly include participating in a competitive campdrafting event.
8. "Dangerous recreational activity" is exclusively defined in s 5K to mean a recreational activity that involves a significant risk of physical harm. The materialisation of a risk from an objectively dangerous recreational activity is not required in terms of subjective knowledge by an individual plaintiff of a danger of serious injury; the legislation applies even if the plaintiff is not aware of the risks (ss 5F and 5L(2)).
9. Mr Watson SC argued that "significant risk of physical harm" is a composite phrase: "the concepts 'risk' and 'harm' mutually inform each other so that the risk of harm involved must be more than trivial but need not be likely to occur: Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [28]-[31]; Jaber v Rockdale City Council [2008] NSWCA 98 at [53]-[55]."
10. In accordance with Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 at 427 [50] ("Fallas"), the question of whether a particular activity is dangerous will depend on the particular objective circumstances in which the plaintiff was injured. The analysis made by Ipp JA in Fallas (referenced in the PWS), notes that even an innocuous activity can become dangerous, depending on the manner in which it is being carried out. In the plaintiff's case the activity of campdrafting was acknowledged by the plaintiff as involving serious risks. In Goode v Angland, riding in a competitive horse race was found to be a dangerous recreational activity, and that it is obvious. Dangers in campdrafting arise from "the unpredictable nature of horses, the fact that the horse is being ridden at speed, the potentially catastrophic harm if there is a fall, and the fact that the participant is chasing a "beast"." [58]
11. In respect of the third criteria, Mr Watson SC submitted that there was a degree of overlap in the circumstances of this case or in the circumstances relating to "significant risk of harm" and those relating to "obvious risk". This is not a case in which the factors that make the activity dangerous are different to the factors which allow a conclusion to be reached that the injury was as a result of the materialisation of an obvious risk. In this case, the risk of harm which made the activity dangerous was the same risk which "came home", namely, the risk that a person might suffer a serious injury if the she fell from a horse during competition. [59]
12. The approach of the trial judge in Goode v Angland [2016] NSWSC 1014 in relation to the identification of the obvious risk (in that case, horse racing), was correct and it would be erroneous to identify the risk at any greater level of particularity than "both the risk that a rider might fall from a horse and the risk that serious injury might be caused by the fall are obvious risks of riding a horse in almost any situation". [60]
13. Whether a risk is obvious is to be determined objectively in accordance with s 5F and the question is whether it was a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. This position is a reflection of the position at common law (see Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754; [2004] NSWCA 247 per Tobias JA at [161]) and this continues to be the test. There is a requirement that the circumstances take into account the plaintiff's age, observations and experience (Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor (2006) Aust Torts Reports 81-860; [2006] NSWCA 101 at [152] ("Dederer"); Jaber v Rockdale City Council [2008] NSWCA 98. Inadvertence to objective risks by a particular plaintiff does not negate their obvious nature.
14. Transposing that test to the facts of this case, this would reference a young adult with experience in campdrafting who had no physical or cognitive disabilities. It was submitted that a reasonable person in the plaintiff's position would be aware that a fall from a horse at speed could involve serious injury or death.
15. It was also argued that the plaintiff signed the waiver agreement which warned her specifically that campdrafting was dangerous and that she may suffer serious injury or death from participating.
16. In respect of the fourth issue, materialisation of an obvious risk of a dangerous recreational activity, reliance was placed on the analysis by the NSW Court of Appeal in Dederer. It was submitted that the possibility that the plaintiff may fall from her horse while competing was an obvious risk of the activity in which she was engaged, and the serious spinal injury she suffered from the fall plainly was the result of a materialisation of an obvious risk of the activity.

Consideration

1. I am persuaded by the defendant's analysis of the four matters that the defendant must prove to bring itself within the provisions of s 5L, and I find that they have all been established on the evidence.
2. There is in my mind no doubt that the plaintiff was engaged in a recreational activity, namely a recreational campdrafting competition, at the time she was injured.
3. I also have no difficulty in concluding that the recreational activity was dangerous. I am conscious of the evidence and submission that falls at campdrafting events were rare, but the potential harm is catastrophic, as it was here. It is widely known, and Emily accepted that she knew, that there was a risk of serious injury, head injury or even death from a fall from a horse. The waiver form she signed was to a similar effect. An activity may be a "dangerous recreational activity" even though the probability of such harm is low: Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [31].
4. I am mindful of the descriptions given by Emily (set out in paragraph [14] of this judgment) which includes the need to ride "at speed" [61] on horseback to "control" and "cut away" a beast from the bigger group, work the beast around two pegs in a figure of eight course in the arena and guide the beast through another gate, all within a set time limit with points awarded for horsemanship and beast control.
5. In relation to the speed of movement of the horse, Emily acknowledged in cross-examination that this would be conducted at a canter but would not agree it would have been a gallop.
6. Mr Shorten described the event as "competitive", involving riding a horse at a high speed, often in a full gallop, around a course which has pegs and involving the rider steering the horse around the course. He noted a number of risks including that the horse could fall by losing its footing or contacting the hooves of the animal being chased. The rider could lose balance and fall off. Horses can be unpredictable animals and so can the livestock which the riders chase in the events.
7. In respect of the third consideration, was the risk of the dangerous recreational activity obvious, the test is objective. I accept Mr Watson SC's submission that for the purposes of the present case, a reasonable person in the position of the plaintiff means a young adult with experience in campdrafting as described.
8. I accept that a wide approach must be taken when identifying whether the risk was obvious. It has been said that it is unnecessary and undesirable to define the particular risk of harm with a high degree of particularity. [62]
9. In my view it is unnecessary and a distraction to attempt to confine the risk by re-writing a risk that is obvious into a false construct that the risk only arose from the precise asserted circumstances on the day, based on some kind of inchoate perception of "unsafeness" of the ground of the arena at the time the plaintiff competed, or via an unfair hindsight reconstruction because an individual offered the view the ground was unsafe and the plaintiff later fell, even taking into account people fell before she did. It would not be a proper approach to identifying the question of whether the risk was obvious, to introduce additional complexity to the obvious risk of the undertaking, which was the risk of falling from the horse and suffering an injury whilst competing in a campdraft competition, given the complexities and risks inherent in and associated with that activity.
10. I am satisfied that the risk of the dangerous recreational activity in which the plaintiff was engaged was obvious.
11. On the fourth question, that is whether the harm suffered by the plaintiff was a result of the materialisation of the obvious risk, the risk was the risk of falling and being injured or alternatively that the horse would fall and as a consequence of that, the plaintiff would fall and be injured. What the evidence establishes is that the horse slipped and the plaintiff fell from the horse. In my view the harm suffered by the plaintiff was the result of the materialisation of an obvious risk and it follows that s 5L applies to operate to deny the plaintiff's claim.

Obvious risk

1. The defendant has pleaded in paragraph [99] of its Amended Defence to the Amended Statement of Claim that any injury suffered by the plaintiff was a result of the materialisation of an obvious risk, and that it had no duty to warn the plaintiff of that risk.

The relevant statutory provisions

1. Section 5F of the CL Act is in the following terms: 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.
2. Section 5G of the CL Act is in the following terms: 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
3. Section 5H of the CL Act is in the following terms: 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

Submissions of the plaintiff

1. Mr Bartley SC argued that the generalised risk relied upon by the defendant, that "people who ride horses can fall off and that is sufficient" was contrary to authority; "a far greater level of specificity is required": C G Maloney Pty Ltd v Hutton-Potts and anor [2006] NSWCA 136 at [173]-[174] ("C G Maloney v Hutton-Potts"), Fallas at [98] and Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 ("Alameddine").
2. The question the Court should ask itself is the extent to which the plaintiff should know that a defendant might be negligent; s 5G should never be able to be utilised to "exculpate a negligent defendant". [63]
3. Mr Bartley SC submitted that the defendant has to fail on this defence as its conduct in failing to maintain the surface of the arena and failing to respond to complaints about the surface and the repeated falls in the time leading up to the plaintiff's fall, are things that cannot be said to be obvious to a reasonable person in the position of the plaintiff. All the surrounding circumstances that occurred immediately prior to the harm must be taken into account.
4. Reliance was placed on these statements in Fallas: "[98] The issue as to whether the harm suffered by the respondent was the result of the materialisation of an "obvious risk", I find more difficult to resolve. It is clear from the definition of "obvious risk" in s5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged was a "dangerous recreational activity" as defined, all of the surrounding circumstances which occurred immediately prior to the respondent's suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was "obvious"." And in C G Maloney v Hutton-Potts at [173]-[174]: "[173] Much depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated. 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. [174] 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."
5. Division 4 of Part 1A of the CL Act is not tied to recreational activities, but is to protect persons from being sued for a failure to tell another person what should have been obvious to that other person in the first place. The plaintiff was entitled to assume that the event was being conducted in accordance with "its rules", and that therefore safety measures contemplated by the rules had been complied with.
6. The written submissions circle back to the asserted failure of the defendant to have proper regard to "all the warning signs" that had come up during the day and that on the plaintiff's case, the emphasis remained upon completing the event (which was irrational) rather than the safety of the competitors.

Submissions of the defendant

1. The submissions set out in [117]-[120] of this judgment were relied upon by Mr Watson SC for the purposes of resolution of this defence.

Consideration

1. I find that the defendant has established that in the circumstances, it had no obligation to inform the plaintiff of the risk of falling from her horse during the campdraft event, as this risk was obvious. Unlike the hidden risk of slipping whilst simply walking across a floor due to excess polish, not known to the user of the floor in C G Maloney v Hutton-Potts, the risk of falling from a horse during the rigours of a campdrafting event was obvious. The risks entailed in walking across an apparently recently polished floor that had a hidden risk of excess polish (clearly found to be the cause of the fall) are very different to riding at speed on a horse and corralling a beast, in a particular required configuration, in a relatively confined space where the activity itself is known to entail a risk of falling.
2. I reject the submission in the PWS that s 5G can "never exculpate a negligent defendant". It is exactly what s 5G does do if a plaintiff asserts "negligence" by a defendant for failing to warn a plaintiff where the risk was obvious. The submission also assumes a finding of "negligence" on the part of the defendant, which, as outlined later, is not a finding I make.

The risk warning

1. The defendant further pleads that it did not owe a duty of care to the plaintiff because the risk of injury was the subject of a risk warning to the plaintiff, both in the waiver agreement signed by the plaintiff and the warning said to have been given by the announcement at the event. [64] I will put to one side the alleged announcement because I have already found no such warning was given, and will focus on the waiver signed by Emily in December 2010.

The relevant statutory provisions

1. Section 5M of the CL Act is in the following terms: 5M No duty of care for recreational activity where risk warning (1) 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. … (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (5) 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). (6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in. (7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety. (8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person. (9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant. (10) The fact that a risk is the subject of a risk warning does not of itself mean: (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity. (11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity. …

Submissions of the plaintiff

1. Mr Bartley SC first submitted that the membership application containing the waiver could not be interpreted to relate to the risk to which the plaintiff was exposed by the deteriorated condition of the arena at the point in time when she entered the arena for the ride during which she fell. Reliance was placed on the conclusions of Macfarlan JA in Alameddine at [55]: "[55] A further reason for concluding that the respondents did not, as a matter of contract, exclude their liability to the appellant is that exclusion clauses are not ordinarily construed so as to extend to the consequences of the defendant's negligence unless the clause refers to that basis of liability. The only reference to negligence in the application form is in the following sentence contained in the warning clause (Clause A - see [5] above): " … Any such injury may result not only for your actions including physical exertion but also from the action, omissions or negligence of others"."
2. Macfarlan JA went on to observe that if, as is appropriate, this provision is construed contra proferentem, it should not be read as extending to the defendant's negligence in that case.
3. Mr Bartley SC submitted that the waiver here should not be read so favourably to the defendant as to encompass its own conduct at this event. A waiver cannot be interpreted to give the defendant "carte blanche both contractually and tortiously", but "would need by clear words or necessary implication to extend to the sequence of breaches which led to the plaintiff's fall." [65]
4. Section 5N does not apply to limit or preclude liability, but only permits parties to certain contracts to exclude, restrict or modify certain liabilities, citing Alameddine and Insight Vacations Pty Ltd (t/as Insight Vacations) v Young (2001) 243 CLR 149; [2011] HCA 16.

Submissions of the defendant

1. Mr Watson SC argued that the plaintiff's submissions evidence a misunderstanding of the ABCRA's case based upon the waiver of liability that she gave to ABCRA. The plaintiff's suggestion that the waiver applies specifically or individually to the Ellerston campdraft is wrong. The waiver is a general precondition to the plaintiff becoming a member of the ABCRA and the plaintiff engaging in any of the relevant activities organised by the ABCRA.
2. The terms of the waiver are comprehensive and extensive. The submissions made on behalf of the plaintiff do not appear to contest that if they are to be applied to the injury suffered by the plaintiff, then the terms of the waiver operate to defeat the plaintiff's claim.
3. The argument that the terms of the waiver were to be incorporated into the asserted contract between the plaintiff and the ABCRA is wrong. The assertion that s 64 of the Australian Consumer Law ("ACL") prevents the ABCRA from relying upon the waiver is also wrong.
4. The proper reading of the waiver is that the plaintiff is prevented from suing ABCRA for personal injury arising from her participation in, amongst other things, a campdraft event. The arguments raised by the plaintiff about the effect of the waiver are based on irrelevancies.
5. In any event, s 64 of the ACL is subject to s 139A of the Competition and Consumer Act 2010 (Cth) ("CCA") and s 275 of the ACL. The effect of each is to read down s 64 of the ACL in respect of exclusionary provisions applying to recreational services (such as have been found here). Those provisions were designed to meet this kind of case.
6. To the extent that the plaintiff alleges that those involved in the decision to allow the event to continue were reckless (and thus activate s 64 of the ACL and/or s 64 of the CL Act), that suggestion should be firmly rejected. The suggestion that those involved in the decision to continue the campdraft event were recklessly indifferent to the safety of their friends and family is absurd. It was not pleaded and it was not put to Mr Shorten.

Consideration

1. I am of the opinion that the arguments made by the plaintiff are incorrect and the comfort sought to be drawn from the conclusions of Macfarlan JA in Alameddine are misplaced. I accept in full the defendant's submissions in respect of this defence and will later deal specifically with the contract allegations and the operation of the ACL and CCA.
2. Section 5M of the CL Act makes it clear that a risk warning for recreational activities can be given full force and effect so that there is no duty of care where a risk warning such as that set out in the waiver form has been given. The terms of the waiver are clear and require the signatory to acknowledge campdraft is a recreational activity, that there are risks, that there is a risk of personal injury or death and that by signing the waiver the plaintiff understands she is waiving her rights to sue "whether caused by the negligence of the provider, its employees or agents, however caused or otherwise".
3. As stated by Basten JA in Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128 it is possible to warn of a risk without instructing the recipient of the warning as to all of the steps which are necessary to avoid the risk. His Honour also noted that an adequate risk warning can be given, at least in some circumstances, by reference to the general kind of risk involved, absent a precise delineation of each separate obstacle or hazard which may be encountered.
4. Section 5M thus provides a further basis upon which to reject the plaintiff's claim against the defendant, as another basis to negate the proposition that the defendant owed any duty of care to the plaintiff.

THE CONTRACT ALLEGED AND CLAIMS UNDER THE AUSTRALIAN CONSUMER LAW

Was there a contract between the plaintiff and ABCRA?

1. In her Amended Statement of Claim the plaintiff asserted that by agreement between the defendant and the plaintiff, she competed at the campdrafting event and that there are a number of terms of that agreement. The plaintiff's case is that given it is clear there was no written agreement, all of these terms must be implied. Section 60 of the ACL implied certain other terms, and in particular that the campdrafting event would be organised managed and provided with due care and skill. A series of asserted breaches of that agreement are listed in paragraph [86] of the Amended Statement of Claim.

The relevant statutory provisions

1. The ACL is set out in Schedule 2 of the CCA.
2. Section 60 of the ACL is in the following terms: 60 Guarantee as to due care and skill 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.
3. Section 64 of the ACL is in the following terms: 64 Guarantees not to be excluded etc. by contract (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; or (b) the exercise of a right conferred by such a provision; or (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services. (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.
4. Section 275 of the ACL is in the following terms: 275 Limitation of liability etc. 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.
5. Further, s 139A of the CCA provides as follows: 139A Terms excluding consumer guarantees from supplies of recreational services (1) A term of a contract for the supply of recreational services to a consumer by a person is not void under section 64 of the Australian Consumer Law only because the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of Subdivision B of Division 1 of Part 3‑2 of the Australian Consumer Law; or (b) the exercise of a right conferred by such a provision; or (c) any liability of the person for a failure to comply with a guarantee that applies under that Subdivision to the supply. (2) Recreational services are services that consist of participation in: (a) a sporting activity or a similar leisure time pursuit; or (b) any other activity that: (i) involves a significant degree of physical exertion or physical risk; and (ii) is undertaken for the purposes of recreation, enjoyment or leisure. (3) This section does not apply unless the exclusion, restriction or modification is limited to liability for: (a) death; or (b) a physical or mental injury of an individual (including the aggravation, acceleration or recurrence of such an injury of the individual); or (c) the contraction, aggravation or acceleration of a disease of an individual; or (d) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual: (i) that is or may be harmful or disadvantageous to the individual or community; or (ii) that may result in harm or disadvantage to the individual or community. (4) This section does not apply if the exclusion, restriction or modification would apply to significant personal injury suffered by a person that is caused by the reckless conduct of the supplier of the recreational services. (5) The supplier's conduct is reckless conduct if the supplier: (a) is aware, or should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person; and (b) engages in the conduct despite the risk and without adequate justification.
6. The provisions of s 5N of the CL Act are also relevant in this context and provide as follows: 5N Waiver of contractual duty of care for recreational activities (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. (3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity. (5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement. (6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.

Submissions of the plaintiff

1. In the PWS Mr Bartley SC submitted that the contract to compete at the Ellerston event consisted of the nominations contained in the email between Courtney and Leanne Shorten in December 2010 and the distribution to Mr Tapp on 6 January 2011 of draw number 101 in the open draft event, in return for payment by him of the entry fee for the horse's nomination.
2. Certain terms are implied by law into that contract. Nothing further is required to complete the contract.
3. It was an "informal contract". Principles that govern the implication of terms into an informal contract were discussed by the High Court in Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24, with the majority (Brennan CJ, Dawson and Toohey JJ) at 422 setting out the following: "Further, as Deane J has observed (see Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 121), the cases in which the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings have been applied in this Court are cases in which there was a formal contract, complete on its face. He pointed out that a rigid approach should be avoided in cases, such as the present, where there is no formal contract. In those cases the actual terms of the contract must first be inferred before any question of implication arises. That is to say, it is necessary to arrive at some conclusion as to the actual intention of the parties before considering any presumed or imputed intention. And the test to be then applied was in a later case formulated by Deane J in these terms (Hawkins v Clayton (1988) 164 CLR 539 at 573): "The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties.""
4. There were also submissions made based on what seems to be a misapprehension of the defendant's case, that the liability waiver needs to be incorporated into the terms of any contract between the plaintiff and the ABCRA, but the defendant's case is that the waiver is a stand-alone document, and it does not admit that there was a contract between the plaintiff and the defendant at all.
5. On the implication of statutory terms, Mr Bartley SC submitted that any contract between the plaintiff and the defendant "included the s 60 guarantee", and s 64 operates to void any term of a contract purporting to exclude, restrict or modify that guarantee, so if the waiver is part of the contract, it is void. [66] Mr Bartley SC concluded that s 275 of the ACL "can revive" the waiver as part of the contract to compete, depending on the terms of the contract, and can release the defendant of the s 64 "contracting out" of the guarantee.
6. There is acknowledgment that s 139A "conditionally lifts" the s 64 prohibition for supply of recreational services, but not where there was significant personal injury caused by the reckless conduct of the supplier. The submissions then assert the preparation of the surface, the failure to stop the competition given Mr Stanton's two approaches, the "bad falls", the absence of a dedicated grounds officer, and that the justification that "the event had to go on" took precedence over the safety of the competitors and amounted to recklessness. [67]

Submissions of the defendant

1. It was submitted, persuasively, by the defendant that there was no relevant contract between the plaintiff and the ABCRA at all.
2. There was significant obfuscation regarding the identification of what documentation is alleged to have evidenced the creation of a contract between the plaintiff and the ABCRA. The plaintiff's case that the contract comprised the email between Courtney and Leanne Shorten is flawed as it is not clear that the money was paid to the ABCRA by Mr Tapp on 6 January 2011 or some other organisation. Leanne Shorten's role was the Honorary Secretary of the Ellerston District Sports Club. There is no evidence indicating she had any role with the ABCRA or any agency for the ABCRA when she corresponded with Courtney.
3. There is a significant question mark over what was in fact being offered by Courtney's email. Should it be seen as one overarching offer or was it several individual offers, one for each event? The email refers to horses not people: for there to be a contract there needed to be an agreement between people.
4. Other problems are identified. Ordinarily, offer and acceptance would involve identifiable parties agreeing upon identifiable terms. The reasons for this are obvious. The "arrangement" simply does not withstand that analysis. There is also an absence of consideration. The plaintiff paid no money herself towards her participation in the Ellerston campdraft. Mr Tapp paid for himself to participate on Xena Lena in the open event not the plaintiff; she had made no arrangement in that regard.
5. Mr Watson SC submitted that none of this conforms to the usual way in which consideration is treated as a fundamental element essential to the formation of a contract and it demonstrates that there was, at law, no contract.
6. There can be informal relationships or arrangements which are not designed to carry with them any legal consequence if the arrangements are not completely fulfilled. Here, it may well have been no intention to create a legal relationship. This should be seen as similar to circumstances where like-minded persons gather with the intention of pursuing a hobby or interest
7. In addressing the 17 implied terms to the asserted contract between the plaintiff and the ABCRA, no explanation was given in the PWS as to why or how any of the pleaded terms should be implied
8. Looking at the issue of breach of contract, if there was one, generally it seems that the plaintiff's case in contract was first, that compliance would be had with the requirements of the ABCRA Rules, and second, that the campdraft would be stopped if conditions became dangerous. In respect of compliance with the Rules, Mr Shorten's evidence addressed the fact that the rule required the surface be either "ploughed or soft surface". Mr Shorten described the surface of the arena having been renovated on the Friday night "just to keep it nice and soft and competitive". With respect to the requirement to appoint a grounds officer, that is only required once certain adverse environmental conditions have occurred, and there was no such requirement under the Rules when read properly. In any event Mr Shorten's consultation with the identified group of people was an appropriate response to the circumstances, and was in effect compliance with the requirements of that Rule.
9. In terms of stopping competition if conditions became dangerous, the facts show that objectively speaking, the arena had not become dangerous.
10. Section 60 of the ACL cannot apply as the plaintiff has not established that there were services supplied in trade or commerce, so this is another basis to reject the plaintiff's arguments and s 139A would operate to prevent circumvention of ss 5L, 5H and 5M of the CL Act given their effect. The arguments on "recklessness" should be rejected.

Consideration

1. I am not satisfied that the documents and events identified by the plaintiff as comprising the contract did create any contractual relationship between the plaintiff and the ABCRA. There is no clarity that the email Courtney sent to Leanne Shorten was a nomination being made to the ABCRA as opposed to Ellerston District Sports Club. The payment made by Mr Tapp at the event has not been identified as being made to the ABCRA as opposed to the Ellerston District Sports Club, so consideration even on that basis, is not established. There is insufficient evidence to support a finding that there was a contract between the plaintiff and the defendant. This means that there is no basis to import the terms argued for by the plaintiff and no role for the implication of the statutory terms under the CCA or the ACL.
2. The plaintiff's case in contract must fail.
3. For the sake of completeness I will deal in short compass with the submissions made by the parties in respect of the operation of the ACL, despite my finding that there was no contract.
4. A number of the provisions of the CL Act upon which the defendant relies are encompassed by s 275 of the ACL. In particular: 1. Section 5L of the CL Act is a law which precludes liability; 2. Section 5H of the CL Act is a law which limits liability; and 3. Section 5M of the CL Act is a law which precludes liability.
5. It follows for the purposes of s 275, each of those provisions of the CL Act are laws that apply to limit or exclude liability. Because of this, the plaintiff cannot rely upon the provisions of the ACL to circumvent the operation of those sections of the CL Act.
6. I accept the defendant's submissions that s 64 of the ACL is not made out on the evidence.
7. The plaintiff's case in contract and statutory guarantee fails.

The relevant statutory provisions

1. Section 5B of the CL Act is in the following terms: 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. Section 5C of the CL Act is in the following terms: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Statement of Claim

1. Paragraph [92] of the Amended Statement of Claim sets out the standard of care that the defendant should have complied with: "92. A reasonable person in the position of the Defendant would have: 92.1. Ploughed the ground at the site of the campdrafting event prior to commencement of competition on 8 January 2011; 92.2. Stopped the competition when the ground became unsafe; 92.3. Warned competitors, including the Plaintiff, that the ground at the site of the campdrafting event had become unsafe."
2. In paragraph [93] separate indicia of breach were pleaded: "93. In breach of its duty of care to the Plaintiff, the Defendant: 93.1. Failed to plough the ground at the site of the campdrafting event prior to commencement of competition; 93.2. Failed to stop the competition when the ground became unsafe; 93.3. Failed to warn the Plaintiff that the ground at the site of the campdrafting event had become unsafe. 93.4. Failed to manage the campdrafting event in accordance with the requirements of the ABCRA Rule Book; 93.5. Failed to provide an event that was fit for purpose; 93.6. Failed to provide facilities that were fit for purpose; 93.7. Failed to supervise, adjudicate, guide and assist the Plaintiff; 93.8. Failed to properly prepare the arena surface; 93.9. Failed to appoint a Grounds Officer to monitor the condition of the arena surface; 93.10. Failed to inspect, assess or review the arena surface between competition classes during 8 January 2011; 93.11. Failed to inspect, assess or review the arena surface following the bad falls at .14pm, 6.22pm, 6.36pm and 6.58pm on 8 January 2011; 93.12. Failed to create incident reports after each of the bad falls at 6.14pm, 6.22pm, 6.36pm and 6.58pm on 8 January 2011; 93.13. Failed to keep records regarding the state of the arena surface during the course of the campdrafting event; 93.14. Failed to recognise the deterioration of the arena surface during 8 January 2011; 93.15. Failed to recognise that the arena surface was not of uniform consistency; 93.16. Failed to cultivate the arena surface to ensure that it was of uniform consistency; 93.17. Failed on two separate occasions to stop the campdrafting event when asked to do so by a member of the Defendant's Association; 93.18. Failed to stop the competition when the arena surface became dangerous or, in the alternative, failed to recognise that the condition of the arena surface had become dangerous; 93.19. Failed to stop the campdrafting event when the condition of the arena surface became dangerous; 93.20. Failed to exercise its obligation to stop the competition on the basis of the dangerous nature of the arena surface; 93.21. Failed to respond to the deteriorating state and increasing dangerous nature of the arena surface as evidenced by the bad falls at 6.14pm, 6.22pm, 6.36pm and 6.58pm on 8 January 2011 by stopping the event; 93.22. Failed to give the Plaintiff the opportunity to inspect the arena surface prior to commencement of her competition run; 93.23. Failed to warn the Plaintiff to reduce her speed and/or corner more widely during her competition run; 93.24. Failed to afford the Plaintiff an adequate opportunity to properly assess whether she ought to remain in the competition."

Submissions of the plaintiff

1. The relevant risk of harm was argued by the plaintiff to be that "a rider might be injured because his or her mount lost its footing because of the condition of the surface of the arena". [68] The requirements of s 5B(1)(a)-(c) are met - foreseeability is admitted, as is the fact that the risk was not insignificant, and the precautions that could have been taken are informed by the ABCRA's own Rules that were breached by the defendant failing to comply with them. There was a failure to properly maintain the surface, and the event should have been called off before the plaintiff's fall.
2. Section 5B(2) is also satisfied. The probability of harm was high given the falls in the preceding hour and the deterioration of the arena surface. The harm was potentially likely to be serious and the precautions, stopping or fixing the ground, were easily taken.

Submissions of the defendant

1. The defendant admitted that it owed to the plaintiff a duty of care to organise, manage and provide the campdrafting event with reasonable care and skill. In response to an allegation that the risk of harm to the plaintiff was foreseeable and the particulars pleaded in respect of that, the defendant admitted that spinal injury is a known risk of falling from a horse. It also admitted that multiple horses had used the ground over the course of the day and that the plaintiff suffering an injury while competing in the campdrafting event on 8 January 2011 was foreseeable.
2. It did not admit that "significant rainfall" had fallen in the area in the previous few days, nor did it admit that the ground had become more dangerous as the competition progressed and nor did it admit that multiple riders had fallen during the competition due to the state of the ground or that multiple requests have been made to stop the event due to the state of the ground and the danger to horses and riders that it presented.
3. Breach of duty was denied. The submission was made that there was a fundamental conceptual difficulty with the plaintiff's negligence claim because it is made solely against the ABCRA and not against the Ellerston District Sports Club. Mr Shorten or any of the other officials who may have performed tasks on the day had an affiliation with the ABCRA, but there is no systemic negligence on the part of ABCRA pleaded against it, so the case relies on acts or omissions on the part of Mr Shorten and others. There was no claim articulated for vicarious liability. None of the individuals involved were employees of the ABCRA or Ellerston District Sports Club, so a claim for vicarious liability would fail.
4. Four additional bases were argued by Mr Watson to be further reasons why the plaintiff's claim in negligence must fail; first, the absence of any relevant duty of care; second, the operation of Part 1A, Div 5 of the CL Act; third, the operation of the volunteers defence; and fourth, the absence of any negligence on the part of the ABCRA.
5. The nature and content of the duty of care is shaped by the relationship between the plaintiff and defendant and the plaintiff is an adult participating in a vigorous sport where risks are known. It is impossible to eliminate all risks from campdrafting because they are a constituent element of the sport. Reliance was placed on the observations of Gleeson CJ, and Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, a case about rugby union injuries where it was observed that it was difficult to settle upon the content of the duty of care in circumstances such as this, and references to "unnecessary" risks are illusory. [69] Because of this, an existence of duty of care does not require all avoidable risks to be eliminated. [70]
6. Mr Watson SC submitted that the content of the relevant duty of care should be found to be "if a concern arose as to the continuing safety of the surface, appropriately experienced persons should conduct an inspection and decide, based on experience, whether the event should continue". This is what was in fact done.

Consideration

1. Mr Bartley argued in supplementary submissions, faintly in my view, that Mr Shorten was, in effect, the mind and will of the ABCRA. That submission is rejected. Quite apart from anything else, it is evident that he was one of a number of volunteers who carried out various jobs preparing the ground and on the day of 8 January 2011, and when it came to the critical question of whether to keep going, a group of four or five people made that decision.
2. A submission was made that a Jones v Dunkel inference should be drawn against the defendant for failing to call the announcer, Leanne Shorten, the people who prepared the arena surface on Friday morning and Friday night, the personnel who worked the grounds for three hours on Sunday morning after Emily's fall, Jack Gallagher the judge, the five identified men who fell in the hour before Emily, the company secretary Mr Jones, and Wayne Smith and Allan Young - the decision makers who decided not to call off the event before Emily's fall.
3. In response the defendant argued that as these people were volunteers, none of them were in anyone's "camp". The plaintiff had subpoenaed a number of them but did not call them.
4. I accept the defendant's submissions on this issue. Ms Shorten, for example, was seminal to the plaintiff's contract argument. She attended Court in response to the plaintiff's subpoena yet was not called to give evidence. The defendant does not ask that I draw an adverse inference against the plaintiff in respect of witnesses she did not call, but it seems to me, given the respective onuses of proof that the plaintiff and the defendant had for the cases they sought to make, those witnesses identified are not in the category of people who were in one "camp" or other and there is no clarity that the people identified would have elucidated any particular matters beyond what was already available on the evidence.
5. I exclude from that finding the announcer, who it seems to me could have given relevant evidence for the defendant, but I have already concluded against the defendant on the announcement warning issue so any inference I would draw from the failure to call him or her goes nowhere.
6. I also specifically reject as incorrect the submission made [71] that the inference I should draw from the absence of these identified people is that "their evidence would be consistent with or support the case brought by the plaintiff" as the law does not support any such inference being drawn.
7. The question of what are reasonable precautions to take must be determined in the context of the events in issue. The plaintiff's case, that one person complains and the event must be stopped, even against a background of other competitors falling is not an assertion that can underpin what comprises a reasonable standard of care. What was required taking reasonable care is for an informed consideration to be made as to whether it is safe to continue with the competition. Hindsight must not inform this decision.
8. I accept the defendant's submission that s 5B(2)(d) also has a role to play and that is the role of sport, including risky ones, and an individual's rights to pursue such sports. As observed by Gleeson CJ in Agar v Hyde at [15]: "People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also of the public benefit of sport. Sporting activities of a kind that sometimes result in physical injury are not only permitted; they are encouraged. Sport commonly involves competition, either between individuals or teams. A sporting contest might involve body contact where physical injury is an obvious risk, or the undertaking by individual competitors of efforts which test the limits of their capabilities in circumstances where failure is likely to result in physical harm. Rules are of the essence of sporting competition. Individuals, or teams, wishing to compete must agree, personally or through membership of some form of association, upon the rules which will govern their competition. In the case of rugby football, as in the case of many other sports, there are layers of voluntary associations, from a local to an international level, which provide facilities for individuals who wish to enjoy the game to participate in contests, and which, as part of providing those facilities, make, amend, interpret and enforce the rules of the game. Making and changing the rules may require giving weight to many considerations, some conflicting. It is not in dispute that they may include considerations relating to the safety of participants in the sport. It is at this point, and in this context, that the question of a legal duty of care arises."
9. I accept the defendant's submission that s 5C(b) is activated for consideration regarding the fact that ground preparation could also have involved ploughing, if a view was reached that the ground was not "soft sand or loam". This can be seen as "doing something a different way" which does not itself give rise to or affect liability.
10. Also pursuant to s 5C(c), the fact that the arena was ploughed for 3 hours on Sunday, the day after Emily's fall, does not affect liability and does not constitute an admission of liability.
11. Breach of duty of care has not been established by the plaintiff.

Causation

1. Section 5D of the CL Act provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
2. This issue can be dealt with shortly. The plaintiff asserts if the defendant had not breached its contract with her and/or not acted negligently, she would not have been injured. The defendant conceded that the case on causation is simple; if the Court finds the duty alleged and that the breach involved a failure to stop the event before Emily's ride, then it is self-evident that the failure to stop the event was a necessary condition of the harm and the requirements of s 5D are met. If however the Court concludes that the breach of duty was limited to the preparation of the arena surface and that there should have been ploughing rather than, or in addition to, using an aerator to prepare the surface, there is no evidence that taking those steps would have led to a different outcome.
3. Given that I have concluded that there was no negligence on the part of the defendant, there is no identified negligence that could comprise the "necessary condition of the occurrence of the harm".

Volunteers defence pursuant to s 60 of CL Act

1. The defendant set out in paragraph [104] of its Amended Defence that another basis for asserting it is not liable to the plaintiff is that the acts and omissions pleaded by the plaintiff were the acts and omissions of people who were first, volunteers as defined in s 60 of the CL Act, and second, that they were performing community work on a voluntary basis and not for private financial gain and which was for a charitable, philanthropic, sporting or cultural purpose.

Relevant statutory provisions

1. Sections 59 and 60 of the CL Act are in the following terms: 59 Application of Part (1) This Part applies to civil liability of any kind, other than liability for defamation. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B. 60 Definitions (1) In this Part: community organisation means any of the following that organises the doing of community work by volunteers and that is capable of being sued for damages in civil proceedings: (a) a body corporate, (b) a church or other religious organisation, (c) an authority of the State. community work means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, educational or cultural purpose, and includes work declared by the regulations to be community work but does not include work declared by the regulations not to be community work. organised includes directed or supervised. volunteer means a person who does community work on a voluntary basis. work includes any activity. (2) For the purposes of this Part: (a) community work done by a person under an order of a court is not to be regarded as work done on a voluntary basis, and (b) community work for which a person receives remuneration by way of reimbursement of the person's reasonable expenses in doing the work, or within limits prescribed by the regulations, is to be regarded as work done on a voluntary basis. (3) A regulation declaring work to be community work may be expressed to extend to apply in respect of civil liability for an act or omission occurring before the commencement of the regulation, except in a case in which proceedings to recover damages for the act or omission were commenced in a court before that commencement.
2. Sections 61 and 64 of the CL Act relevantly provide: 61 Protection of volunteers A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work: (a) organised by a community organisation, or (b) as an office holder of a community organisation. … 64 Liability of volunteer not excluded if acting outside scope of activities or contrary to instructions This Part does not confer protection from personal liability on a volunteer in respect of an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting: (a) outside the scope of the activities authorised by the community organisation concerned, or (b) contrary to instructions given by the community organisation.
3. Section 3C of the CL Act is also relevant and is in the following terms: 3C Act operates to exclude or limit vicarious liability Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.

Submissions of the plaintiff

1. Mr Bartley SC submitted that s 64 of the CL Act applied because the volunteers, if found to be volunteers, were acting contrary to instructions given by the ABCRA under its Rules.

Submissions of the defendant

1. Mr Watson SC submitted that the volunteers did not act outside the Rules and that everything they did was in compliance relevantly with those Rules, and the evidence in the statements of Mr Shorten and Mr Young establish the necessary components of s 60 CL Act.

Consideration

1. I accept that the persons identified as having carried out any relevant acts or being responsible for any relevant omissions were volunteers as defined, carrying out community work and thus are entitled to s 61 protection. I reject that any of those volunteers were acting outside the scope of activities authorised by the organisation or contrary to instructions given by the organisation and that protection extends to the ABCRA if any vicarious liability allegation is asserted, although no such allegation is evident on the pleadings.
2. The plaintiff's case against the defendant fails on this further basis, even if the persons having any relevant role were in fact acting as agents of the ABCRA which is not admitted and not proved on the balance of probabilities.

Orders 1. Verdict and judgment for the defendant. 2. The plaintiff is to pay the defendant's costs as agreed or assessed.

Endnotes

1. Statement of Emily Tapp, 18 December 2013.
2. T194-T195.
3. T98.31-34.
4. T52.46-50.
5. T111.40-45.
6. T117.37.
7. Statement of Craig Young, 18 April 2018.
8. T47.24-38.
9. T48.39-T49.8.
10. T49.37-47.
11. T50.12-29.
12. T50.41-43.
13. Statement of Courtney Tapp, 31 July 2017.
14. Statement of Ben Tapp, 31 July 2017.
15. Exhibit 10.
16. Statement of Craig Young, 18 April 2018, paragraph [3].
17. Statement of Craig Young, 18 April 2018, paragraph [7].
18. Statement of Darren Shorten, 30 November 2016, paragraphs [2]-[3].
19. Statement of Darren Shorten, 30 November 2016, paragraph [4].
20. Constitution of the Ellerston District Club Incorporated annexed to Statement of Darren Shorten, 16 April 2018.
21. Statement of Ben Tapp, 31 July 2017, paragraph [15].
22. Statement of Darren Shorten, 30 November 2016.
23. Statement of Darren Shorten, 30 November 2016, paragraph [13].
24. (1959) 101 CLR 298.
25. Statement of Darren Shorten, 30 November 2016.
26. Statement of Darren Shorten, 30 November 2016, paragraph [17].
27. T203.
28. T204.
29. Statement of Darren Shorten, 30 November 2016, paragraph [19].
30. Exhibit 8.
31. T192.38-44.
32. T189.7-41.
33. Report of Dr Kirchhof, 8 February 2014, page 4.
34. Report of Dr Kirchhof, 8 February 2014, pages 6-7.
35. Report of Dr Kirchhof, 8 February 2014, page 9.
36. Statement of Ben Tapp, 31 July 2017, paragraph [15].
37. Report of Mr Doughty, 28 November 2014, page 3.
38. Report of Mr Doughty, 28 November 2014, page 3.
39. Report of Mr Doughty, 28 November 2014, page 4.
40. Report of Mr Doughty, 28 May 2017, page 4.
41. Report of Mr Doughty, 28 May 2017, page 5.
42. Report of Mr Doughty, 28 May 2017, page 5.
43. Report of Mr Doughty, 28 May 2017, pages 8-9.
44. Report of Mr Doughty, 28 May 2017, page 10.
45. Report of Mr Doughty, 28 May 2017, page 10.
46. Report of Mr Doughty, 28 May 2017, page 10.
47. [2017] NSWCA 311.
48. Amended Defence to Amended Statement of Claim, paragraph [100].
49. Plaintiff's Written Submissions, 30 August 2018, paragraph [124].
50. Plaintiff's Written Submissions, 30 August 2018, paragraph [125].
51. Plaintiff's Written Submissions, 30 August 2018, paragraph [129].
52. Plaintiff's Written Submissions, 30 August 2018, paragraph [130].
53. Plaintiff's Written Submissions, 30 August 2018, paragraph [132].
54. Plaintiff's Written Submissions, 30 August 2018, paragraph [133].
55. Defendant's Written Submissions, 17 September 2018, paragraph [75].
56. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002 at 5765.
57. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002 at 5765.
58. Defendant's Written Submissions, 17 September 2018, paragraph [88].
59. Defendant's Written Submissions, 17 September 2018, paragraph [91].
60. Goode v Angland [2016] NSWSC 1014 at [34] (Harrison J).
61. T38.1-3.
62. Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 at [153] per Ward JA, Emmett and Gleeson JJA agreeing.
63. Plaintiff's Written Submissions, 30 August 2018, paragraph [103].
64. Amended Defence to Amended Statement of Claim, paragraphs [101] - [104].
65. PWS at [146].
66. PWS at [28]-[30].
67. PWS at [35].
68. PWS at [67].
69. Per Gleeson CJ at [17] and Gaudron, McHugh, Gummow and Hayne JJ at [80].
70. Per Gleeson CJ at [18].
71. PWS at [55] 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: 04 November 2019