ealth Consumer Affairs Advisory Council, Consumer Rights: Reforming Statutory Implied Conditions and Warranties (Final Report, October 2009)
Commonwealth House of Representatives, Parliamentary Debates (Hansard), 17 March 2010
Negligence Review Panel, Review of the Law of Negligence: Final Report, Commonwealth of Australia, (September 2002)
Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010
Category: Principal judgment
Parties: Emily Jade Rose Tapp (Appellant)
Australian Bushmen's Campdraft & Rodeo Association Ltd (Respondent)
Representation: Counsel:
D F Jackson QC with D F Villa SC and J A Hillier (Appellant)
G Watson SC with D Lloyd (Respondent)
Solicitors:
Commins Hendricks (Appellant)
RGS Law (Respondent)
File Number(s): 2019/370858
Publication restriction: Nil.
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law
Citation: [2019] NSWSC 1506
Date of Decision: 4 November 2019
Before: Lonergan J
File Number(s): 2012/241041
[2]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[3]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 8 January 2011, Emily Tapp (the appellant), who was then 19 years old, fell from her horse while competing in a campdraft event and suffered a significant spinal injury. The event was organised by the respondent, the Australian Bushmen's Campdraft & Rodeo Association ("the Association"). The appellant sought damages for personal injury arising out of the accident. The primary judge found in favour of the Association.
There were four issues on appeal. First, whether the primary judge erred in failing to find that the Association breached its duty of care to the appellant. Second, whether the primary judge erred in finding that the injury suffered by the appellant was a result of the materialisation of an obvious risk of a dangerous recreational activity. Third, whether the primary judge erred in finding that the Association was not liable to the appellant by reason of the volunteer defence under the Civil Liability Act 2002 (NSW). Fourth, whether the primary judge erred in failing to find that the Association was liable to the appellant by reason of the guarantee in s 60 of the Australian Consumer Law.
The Court held, dismissing the appeal:
[4]
Duty of care
per Payne JA (Basten JA agreeing):
The appellant did not establish that a cause of her fall was a deterioration of the surface of the arena and that the exercise of reasonable care in all the circumstances would have caused the Association to stop the campdrafting event, plough the arena ground, and/or warn the appellant that the ground at the site of the campdrafting event had become unsafe: [51], [54], [56]-[58].
per McCallum JA (dissenting):
The critical issue is whether the primary judge erred in failing to find that a reasonable person in the position of the respondent would have suspended the event and repaired the surface prior to the appellant competing: [170]. The appellant's evidence that the surface of the arena had become unsafe for campdrafting was strong: [171]-[177].
As to causation, the horse fell because the surface of the arena had deteriorated by the time the appellant rode to the point where a horse proceeding at a canter struggled to find her stride so that her legs slipped from under her: [182].
[5]
Obvious risk s 5L Civil Liability Act
per Basten JA:
4. Without clear evidence as to the nature of the risk posed by the surface of the arena where the appellant's horse fell, it was not possible to identify the cause of the fall, or the risk of harm against which the defendant should reasonably have taken precautions: [2].
per Payne JA (Basten JA agreeing):
5. The appellant did not identify the way in which it was alleged the surface of the arena had deteriorated. The nature of the deterioration is critical to the appellant's formulation of the obvious risk: [69].
6. If it were a sufficient description of the general causal mechanism of the injury to describe the risk as "the appellant's horse falling in the course of the campdrafting competition", the risk was obvious. Even if the risk were correctly framed as being "the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena", the injury suffered by the appellant was the manifestation of an obvious risk.
The former is far too broad; it would include the risk arising from a misjudgment by the appellant. The latter is also inadequate because, although it refers to the state of the arena, it fails to identify the nature of the deterioration which led to the risk of a fall. In either case, the risk was obvious to a reasonable rider competing in these kinds of events, in which the appellant had many years of experience: [77]-[78].
per McCallum JA (dissenting):
7. The risk that materialised must be characterised with enough particularity to enable the court to determine whether it was foreseeable by the organisers, whether it was one capable of attracting liability, and whether it would, prospectively, have been obvious to a reasonable person in the position of the plaintiff: [162].
Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, considered.
8. The characterisation of the risk adopted by the primary judge does not meet the requirements explained. It failed to identify a risk arising from any potentially negligent conduct of the Association. It does not enable the Court or the parties to assess whether the risk was one capable of attracting liability. It does not identify the causal mechanism of the fall and so does not enable the Court or the parties to assess whether the risk would, prospectively, have been obvious to a reasonable person on the position of the appellant: [164].
9. The risk of harm identified by the appellant in oral submissions, being "the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena", is an apt description of the risk alleged to have materialised here. It identifies a source of potential injury which enables the Court to determine whether the risk was foreseeable. It also identifies the reasons the injury in fact occurred, which enables the Court to determine whether the risk would have been obvious to a reasonable person in the position of the appellant: [166].
10. The risk as framed would not have been obvious to a reasonable person in the appellant's position: [185]-[186].
[6]
Volunteer defence
per Payne JA (Basten JA and McCallum JA agreeing):
11. On reading Part 9 of the Civil Liability Act as a whole, a "volunteer" can only be a natural person: [96]. Even assuming that a body corporate is capable of being a "volunteer" within the meaning of Part 9, the other requirements of s 61 of the Civil Liability Act are not satisfied here: [96].
[7]
Australian Consumer Law
per Payne JA (Basten JA and McCallum JA agreeing):
12. The appellant's formulation on the appeal of a breach of the statutory guarantee in s 60 of the Australian Consumer Law was not pleaded or addressed in the court below. A new argument may not be run for the first time on appeal: [115].
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35, applied.
[8]
Judgment
BASTEN JA: I agree with Payne JA that the appeal in this matter must be dismissed with costs.
The plaintiff suffered very serious injuries when her horse fell during a competitive campdrafting event. The plaintiff's claim in negligence against the organiser of the event failed on the evidence. In substance she failed to establish why her horse fell. It may be accepted that the horse slipped or slid, but precisely why that happened remained obscure. One factor may have been the state of the surface of the arena. However, without clear evidence as to the nature of the risk posed by the surface of the arena where her horse fell, it was not possible to identify the cause of the fall, or the risk of harm against which the defendant should reasonably have taken precautions.
It follows, as Payne JA explains in dismissing ground 1, that the trial judge did not err in finding that no breach of the defendant's duty of care had been established.
The reasons for that conclusion render it difficult to apply s 5L of the Civil Liability Act 2002 (NSW), which precludes liability in negligence for harm suffered as a result of the materialisation of an obvious risk. The level of particularity at which the risk is defined may determine the outcome in a particular case. For example, in the present case formulating the risk as that of falling from a horse in the course of a competitive campdrafting event is likely to identify an obvious risk, precluding a successful claim for any fall. However, as McCallum JA explains, sufficient particularity is required to reflect the element relied on to support a claim in negligence. But if the cause of the fall cannot be identified in a way which allows responsibility for not taking a reasonable precaution to be sheeted home to the defendant, a more precise risk than that suggested here cannot be formulated.
One consequence may be that, no causally relevant breach of duty having been demonstrated, it may not be possible to apply s 5L. On the other hand, I do not think it was an error for the trial judge to address this issue as best she could on the evidence. I agree with Payne JA that she did not err in her application of s 5L in the circumstances. The judge was correct to reject a complaint that the surface was "unsafe" as inchoate or too vague; it was simply conclusory language. I agree with Payne JA at [78] that reference to "deterioration of the surface of the arena" - see [68] - was similarly too vague to be helpful. However, identifying the risk as the appellant proposed, it was correctly found to be an obvious risk for the purposes of s 5L. No analysis of the caselaw with respect to s 5L can assist in resolving the evidential problem.
[9]
Grounds of appeal
In an amended notice of appeal filed on 17 June 2020, the appellant relied upon six grounds of appeal:
1. the trial judge erred in failing to find that the respondent breached its duty of care to the appellant;
2. the trial judge erred in finding that the respondent was not liable in negligence for the harm suffered by the appellant by reason of Civil Liability Act s 5L;
3. the trial judge erred in finding that the respondent did not owe a duty of care to warn the appellant by reason of Civil Liability Act s 5K;
4. the trial judge erred in finding that the respondent did not owe the appellant a duty of care by reason of Civil Liability Act s 5M;
5. the trial judge erred in finding that the respondent was not liable to the appellant by reason of Civil Liability Act Part 9; and
6. the trial judge erred in failing to find that the respondent was liable to the appellant under s 60 of the ACL.
[10]
Ground 1: Breach of duty of care
Although in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [185], Leeming JA explained that there is much to be said for dealing with the "liability-defeating rule" in s 5L of the Civil Liability Act at the outset and prior to the question of breach of duty of care, that approach is not an inflexible rule. The present is a case where it is appropriate first to address the alleged breach of duty of care. This is because an important part of the "liability-defeating rule" in s 5L of the Civil Liability Act is the identification of the relevant risk(s) of the "dangerous recreational activity". That in turn raises a preliminary question of why it was that the appellant's horse fell.
At trial, the Association admitted that it owed the appellant a duty of care to organise, manage and provide the campdrafting event with reasonable care and skill. The appellant's case was that the Association had breached that duty of care in three relevant ways. A reasonable person in the position of the Association would have:
1. ploughed the ground in the arena prior to commencement of the competition on 8 January 2011;
2. stopped the competition when the ground became unsafe; and/or
3. warned competitors, including the appellant, that the ground at the site of the campdrafting event had become unsafe.
The appellant submitted:
1. the circumstances required an appropriate warning to have been provided to all competitors in a manner that would have enabled them to make an informed decision about whether or not to continue to participate. The trial judge found that this did not occur;
2. having regard to the deterioration of the surface and the concessions made by Mr Shorten about the condition of the arena surface, the more important step that ought to have been taken was to suspend the competition until the arena surface was repaired;
3. the respondent, through Mr Shorten and the Members' Representative Council "obviously held concerns for the condition of the surface" and were "obviously alive to the possibility that some riders might not want to continue".
Each of the appellant's submissions assumed that it had been established that a cause of the appellant's horse falling was the deterioration in the condition of the surface of the arena which made the arena "slippery". The primary judge made no such finding. It bears emphasis at the outset that at the trial, and on the appeal, the appellant never clearly identified the way in which it was alleged the surface had deteriorated: (i) that it was hard and compacted when it should have been soft, (ii) that it was rough and broken up when it should have been smooth, or (iii) that it was slippery in some other way (for example by reason of rainfall during the day).
[11]
Grounds 2 and 3: Obvious risk
The Association succeeded below in establishing that the injury suffered by the appellant was a result of the materialisation of an obvious risk of a dangerous recreational activity and that it had no duty to warn the appellant of that risk.
Section 5L of the Civil Liability Act, the operative provision relevant to the present case, provides as follows:
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.
Defined terms are identified in s 5K which provides:
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.
The meaning of an obvious risk is identified in s 5F of the Civil Liability Act:
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.
About "obvious risk" the primary judge found:
"[130] 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.
[131] 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.
[132] I am satisfied that the risk of the dangerous recreational activity in which the plaintiff was engaged was obvious."
[12]
Ground 4: Risk warning
On appeal, it was conceded that as a result of this Court's decision in analogous circumstances in Menz, the Association was no longer able to rely upon the written risk warning in support of the primary judge's orders. It therefore became unnecessary to consider this ground.
Ground 4 should be allowed. As this was an alternative basis for the primary judge's conclusions this does not affect the ultimate outcome of the appeal.
[13]
Ground 5: Volunteer defence
Sections 60, 61 and 64 of the Civil Liability Act provide:
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.
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.
The primary judge found that the "persons identified as having carried out any relevant acts or being responsible for any relevant omissions" were volunteers within the meaning of s 60(1) who were carrying out "community work" and therefore entitled to the protection of s 61. Her Honour held that protection extended to the Association, if the Association was vicariously liable, although no such allegation was evident on the pleadings.
[14]
Ground 6: Liability under s 60 of the Australian Consumer Law
Section 60 of the ACL provided at the relevant time:
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.
Section 275 of the ACL provided:
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.
As Sackville AJA explained in Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; (2018) 361 ALR 456, in a part of the judgment about which special leave to appeal was refused, the ACL came into force on 1 January 2011. On that date the name of the Trade Practices Act 1974 (Cth) was changed to the Competition and Consumer Act 2010 (Cth). Section 74 of the Trade Practices Act was repealed and replaced by consumer guarantees contained in ss 60 and 61 of the ACL, which are contained in Sch 2 of the Competition and Consumer Act.
The consumer guarantees differ from ss 74(1) and (2) of the Trade Practices Act in that they provide protection to consumers by means of statutory guarantees, rather than by implying statutory warranties into contracts between corporations and consumers. The Minister's second reading speech accompanying the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 indicated that the consumer guarantees had been "closely aligned to New Zealand law", a reference to ss 28 and 29 of the Consumer Guarantees Act 1993 (NZ). [1] The Minister also stated that the reforms were based on a "comprehensive analysis" by the Commonwealth Consumer Affairs Advisory Council (Consumer Council). [2]
The Consumer Council published its Final Report on Consumer Rights in October 2009. [3] It identified a number of problems with the existing law relating to implied terms. The difficulties included the complexity of the law, the lack of awareness by consumers of their statutory rights and the inappropriateness of using a nineteenth century model of implied terms as a basis for a broader consumer protection regime. The Consumer Council noted that: [4]
"Since the legislation relies on the common law of contract, it assumes that all consumer sales are of a contractual nature, which [a Consumer Affairs Victoria research paper] contrasts with an understanding of consumer purchases as simple 'exchanges of money for a product that do not involve an offer, acceptance, consideration, express terms etc'. The existing consumer legislation is based on the law of contract. It does not explicitly set out all the rights and remedies that flow from a breach of an implied term." (Footnote omitted.)
[15]
Conclusion and proposed order
Although the appellant has succeeded in some limited respects, she has failed in disturbing the orders made by the primary judge. For the foregoing reasons I propose the following orders:
1. Appeal dismissed;
2. Appellant to pay the respondent's costs.
McCALLUM JA: Section 5L of the Civil Liability Act 2002 (NSW) protects the provider of a dangerous recreational activity from liability in negligence for harm suffered as a result of the materialisation of an obvious risk of the activity. There is no doubt that the campdrafting event in which Ms Tapp competed was a dangerous recreational activity within the meaning of s 5K of the Act, but was the risk that materialised in her case obvious? The answer depends on how risk should be framed for the purpose of determining a claim in negligence under Part 1A of the Civil Liability Act. That is the vexed question raised by this appeal.
The determination of that question was decisive in the recent decision of this Court in Singh v Lynch [2020] NSWCA 152, in which Simpson AJA and I were in dissent. A bench of five was convened in that case to consider the correctness of a previous decision on a different issue (whether professional jockeys competing in a horse race are engaged in a dangerous recreational activity within the meaning of s 5K of the Act: see Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311). The Court in Singh v Lynch unanimously rejected that aspect of the appellant's argument, which meant that s 5L was potentially engaged. However, the Court was divided on the question of obvious risk for the purpose of the application of that section. The majority held that the risk of a jockey falling during a race as a result of another jockey's careless riding, constituted by deliberate contact with another horse, and contrary to the rules of racing, was obvious: [66], [139], [151]-[153].
The primary judge had adopted a broader characterisation of the risk that materialised, namely "the risk of his mount falling, bringing him to the ground and causing him injury". This Court did not endorse that approach. Basten JA considered that the characterisation preferred by the primary judge "may be too broad in that it fails to identify a risk arising from potentially negligent conduct": at [68] (Simpson AJA and I agreeing at [202]). Leeming JA similarly appears to have endorsed a requirement that there be some identification of the potentially negligent conduct that caused the fall, offering an example of a risk that, by way of contrast, may not be obvious (at [140]):
"Suppose the occupier of a racetrack was found to have negligently permitted rabbits to burrow under the course, and a horse fell when it put its hoof in a burrow. Although every case will be question of fact, it seems probable that that would not be the materialisation of an obvious risk."
[16]
The importance of identifying the relevant risk
As Payne JA has noted, there is no inflexible rule as to the order in which the issues raised by a claim under Part 1A of the Civil Liability Act should be addressed. There is much force in the view that has been expressed by Leeming JA on a number of occasions that, if a case can conveniently be decided by the application of a liability-defeating provision, it should be: Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [54]-[57]; Goode v Angland at [185]. In other cases it may be convenient to address breach of duty of care first, as Payne JA has in the present case. On either approach, the logical first step is to determine the appropriate identification of the relevant risk of harm as, on any analysis, that will provide the framework for the determination of liability: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59] (Gummow J); Schultz v McCormack [2015] NSWCA 330 at [86] (McColl JA).
[17]
Statutory allocation of responsibility for different kinds of risk
Every personal injury is suffered as a result of the materialisation of a risk of some kind or other. The Civil Liability Act governs liability in negligence broadly according to the kind of risk that materialised resulting in injury to the plaintiff. The descriptions of risk are clear and do not give rise to ambiguity. For example, it is explained in s 5B(1) that foreseeable risk is "a risk of which the person knew or ought to have known". The relevant "person" in that definition is the defendant ("a person is not negligent in failing to take precautions against a risk of harm unless…"). The term "inherent risk" is defined in s 5I(2) to mean "a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill". That again speaks to the perspective of the defendant, as s 5I(1) defeats liability in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
The definition of the term "obvious risk" in s 5F introduces the perspective of the plaintiff (more accurately, a reasonable person in his or her position):
"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.
The Ipp Report [6] is capable of assisting here, [7] if only to confirm that the word "obvious" has its ordinary meaning. The Report noted that the term "obvious risk" would include risks that are patent or matters of common knowledge, and could include risks of low probability. The Panel then said at [4.17]:
"Beyond this, the Panel considers that it would be undesirable and impractical to attempt to define obviousness, because whether or not a risk is obvious will be for the court to decide and must depend ultimately on the facts of each individual case."
Those suggestions were taken up in the amendments to the Civil Liability Act introduced by the Civil Liability (Personal Responsibility) Act 2002 (NSW) following the tabling of the Report. Section 5F(4) added the additional clarification:
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.
Beyond those matters of clarification, the section does not seek to define obviousness, leaving that as a matter for the Court to decide, as recommended by the Ipp Report.
[18]
Is the relevant risk different for different purposes?
Before turning to the question of the degree of particularity with which the relevant risk should be specified, it is necessary to address a submission made by Ms Tapp in her written submissions in chief. It was submitted, in short, that a risk alleged to have been "foreseeable" for the purpose of s 5B of the Act ("a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable" etc) will appropriately be described at a higher level of generality than a risk alleged to be "obvious" for the purpose of s 5L because those two sections have different "functions".
I doubt whether that is the correct analysis. There are textual indications in the Act that the relevant risk is the same for all purposes. For example, s 5G assumes that one of the ways in which "the risk of harm" might be characterised is as "an obvious risk". Section 5M(10), concerned with risk warnings, similarly assumes that a risk the subject of a risk warning is capable of being characterised as an "obvious risk" or an "inherent risk" (or neither). I accept that the task of describing the relevant risk is complicated by temporal considerations. The Act nonetheless appears to assume that the relevant risk is the same and the important question for the purpose of determining liability is how that particular risk is to be characterised (for the purpose of s 5B, "foreseeable" and "not insignificant"; for the purpose of s 5K, "obvious" and "significant"; for the purpose of s 5I, "inherent").
[19]
Appropriate degree of particularity
It has been recognised that the outcome of a case may turn on the level of particularity with which the relevant risk is identified: Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 at [152] (Basten JA; reiterated by his Honour in Singh v Lynch at [45]).
There is a natural contest between plaintiffs and defendants on this issue. For the purpose of determining obviousness, it will be in the interests of the plaintiff to define the risk in terms approaching an exact description of the risk that in fact materialised; the defendant will prefer a description at the highest level of generality (for the purpose of determining foreseeability, it is the opposite).
The decision in Fallas v Mourlas illustrates the point. Mr Mourlas was injured when Mr Fallas accidentally discharged a gun while the two men were "spotlighting" (shooting kangaroos at night with the aid of a spotlight). The Court held by majority that the risk that materialised did not constitute an "obvious risk" of what was held (by a different majority) to be a dangerous recreational activity. Basten JA explained the significance of the degree of particularity in describing the relevant risk as follows at [153]:
"Thus, if the risk which is said to have materialised is simply that of harm flowing from the accidental discharge of a gun, whilst pointed at the plaintiff, that risk was undoubtedly obvious to the plaintiff himself, and would have been obvious to any reasonable person in his position. On the other hand, if one takes into account the assurances given by the defendant that the gun was not loaded at the relevant time, the risk may not be obvious. These differences suggest that the application of s 5L(1) will depend upon the level of particularity at which "the circumstances" are identified and those aspects of "the position" of the plaintiff which are to be ascribed to the reasonable person, for the purposes of the definition in s 5F(1)."
As noted in those remarks, some attention must be given to the attributes of the plaintiff to be ascribed to the reasonable person in his or her position for the purposes of the definition in s 5F(1). As Payne JA has noted in the present case, Ms Tapp was an experienced campdrafter. However, at the age of 19, she was also barely an adult. Her age is a characteristic to be attributed to a reasonable person in her position for the purpose of s 5F(1). Experience tells that young people tend to be less attuned to risk. So much was recognised in the observations of the Ipp Report set out above.
[20]
Characterisation of the relevant risk in the present case
In the present case, the primary judge adopted the characterisation of the risk as being "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": at [131]. Payne JA has concluded that that formulation provided a sufficient description of the general causal mechanism of the injury sustained. With great respect to the primary judge and Payne JA, I do not think that characterisation meets the requirements I have explained. As noted in the appellant's further submissions, it fails to identify a risk arising from any potentially negligent conduct on the part of the respondent (cf Singh v Lynch at [68] per Basten JA). It does not enable the Court or the parties to assess whether the risk was one capable of attracting liability (that is, a risk other than an inherent risk of campdrafting). And it does not identify the causal mechanism of the fall and so does not enable the Court or the parties to assess whether the risk would, prospectively, have been obvious to a reasonable person in the position of the appellant.
The description of the risk as the risk of "falling from the horse and suffering an injury whilst competing in a campdraft competition", while not encompassing all possible risks associated with the activity, comes close to that. The additional words "given the complexities and risks inherent in and associated with that activity" with respect do not save the generality of that description but only serve to emphasise it. Indeed, as submitted on behalf of Ms Tapp, there is a measure of circularity in identifying the relevant risk by reference to (unidentified) risks inherent in the activity.
The risk of harm was identified by the appellant in oral submissions as being "the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena." For the reasons I have explained, in my view that is an apt description of the risk alleged to have materialised here. It identifies a source of potential injury (the requirement discussed by Gummow J in Dederer), which enables the Court to determine whether the risk was foreseeable. It also identifies the reason the injury in fact occurred (the requirement discussed by Leeming JA in Menz), which enables the Court to determine whether the risk would have been obvious to a reasonable person in the position of the appellant.
[21]
Notice of contention ground 1: Content of the duty of care
The Association admitted on the pleadings that it organised, managed and provided a competitive campdrafting event at Ellerston and that it owed Ms Tapp a duty of care to do so with reasonable care and skill. By notice of contention, the Association takes issue with the scope of the admitted duty, contending that it "did not owe the appellant a duty of care with a content relevant to the appellant's claim". I would reject that contention.
The Association's written submissions on this issue acknowledge that, because of the findings on obvious risk, the trial judge did not address the issue of duty in detail. As indicated below, Ms Tapp confines her case on appeal to a single allegation concerning the Association's failure to suspend the event before she competed in order to repair the surface of the arena. I agree with Payne JA at [60] that the Association's admissions on the pleadings foreclose any dispute as to its authority to suspend the event. I am satisfied that the content of the admitted duty is broad enough to comprehend Ms Tapp's claim.
[22]
Appeal ground 1: Breach of duty
The first ground of appeal asserts error in the findings of the primary judge concerning breach of duty, as follows:
"The trial judge erred in failing to find that the respondent breached its duty of care to the appellant in that:
(a) the trial judge failed to find that the reasonable person in the position of the respondent would have suspended the event prior to the appellant competing and repaired the surface of the arena; and
(b) the trial judge failed to find that the conduct of Mr Shorten and the Members Representative Council was the conduct of the respondent, or conduct for which the respondent was liable."
Payne JA has addressed the second issue under the heading of ground 5, concluding at [90] that Mr Shorten was a directing mind of the Association and that his acts and knowledge are properly to be attributed to the Association. I would allow ground 1(b) for the same reasons. The critical issue is that raised by ground 1(a), whether the primary judge erred in failing to find that a reasonable person in the position of the respondent would have suspended the event and repaired the surface prior to Ms Tapp competing.
Payne JA has reached the conclusion that Ms Tapp did not establish, other than by reference to hindsight, that the surface of the arena had become unsafe for campdrafting. I respectfully disagree. Indeed, I would assess Ms Tapp's case on that issue to be strong.
First, the need for a particular kind of surface for campdrafting is recognised in the Association's own rules, which state:
"5. The Arena surface MUST be safe, being either ploughed or soft surface (sand or loam) arena. ATTENTION MUST BE GIVEN TO ARENA SURFACES." (emphasis in original)
The rule recognises that, in order to be safe for the kind of riding required in campdrafting, the surface of the arena should either be soft of its nature (being sand or loam) or else should be softened by the mechanical process of being ploughed. The arena on which the Ellerston event was held was neither. I do not accept that there was no evidence of that. This is not a case where the photographs might create a false impression. There are eleven photographs in evidence (five of which were tendered by the Association) and it is beyond dispute from every one of them that the surface of the arena was not as prescribed by the rules. It was not ploughed or sand or loam. Mr Shorten gave evidence that, until the morning after Ms Tapp's accident, the Association had never ploughed that ground. They had only ever used an aerator. I acknowledge that Ms Tapp did not rely on breach of the rules as a discrete complaint before the primary judge but the Association's own recognition of the importance of a soft or ploughed surface forms part of the relevant evidence on this issue and I see no reason not to rely on it as part of the basis for any inference I might draw.
[23]
Appeal grounds 2 and 3: Obvious risk
I have already addressed the appellant's contentions concerning the proper identification of the obvious risk. My assessment of grounds 2 and 3 proceeds on the basis that the risk of harm that materialised was appropriately identified as "the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena". Ms Tapp contends that was not an obvious risk within the meaning of s 5F. On that basis, she contends that the trial judge erred in finding that the Association was not liable in negligence for the harm suffered by her by reason of s 5L (ground 2) and that the trial judge erred in finding that the Association did not owe a duty of care to warn Ms Tapp by reason of s 5K (probably intended to be a reference to s 5H, which was the section invoked by par 99 of the defence) (ground 3).
I am satisfied that the risk as framed above would not have been obvious to a reasonable person in Ms Tapp's position, for a number of reasons. First, as already noted, I consider that Ms Tapp's age must be taken into account as one of the attributes of the reasonable person in her position and I consider people of that age to be less attune to risk and poorly equipped to assess it. In the different field of the criminal law, the law recognises the relevance of youth in determining the extent to which an offender is responsible for their actions: Howard v R [2019] NSWCCA 109 at [33] (Fullerton J, with whom Macfarlan JA agreed, Bellew J dissenting). The law should equally recognise, in the present context, that teenagers are likely to be less attuned to risks that would be obvious to more experienced, settled members of the community. A reasonable person of Ms Tapp's age would be unlikely to pause, while waiting for her run in a high-turnover event, to reflect upon the appearance of the surface. They would likely assume an adult had made an appropriate decision about that, if they turned their mind to the issue at all.
Secondly, the unchallenged evidence was that Ms Tapp was unaware that the event had been suspended due to a previous fall and that she did not hear any announcement offering the opportunity to withdraw her entry with a full refund or else compete at her own risk. She was also unaware of Mr Stanton's approaches expressing his view that the competition should be stopped.
[24]
Endnotes
Commonwealth House of Representatives, Parliamentary Debates (Hansard), 17 March 2010 at 2720.
Commonwealth House of Representatives, Parliamentary Debates (Hansard), 17 March 2010 at 2720.
Commonwealth Consumer Affairs Advisory Council, Consumer Rights: Reforming Statutory Implied Conditions and Warranties (Final Report, October 2009) ('Consumer Rights Report').
Consumer Rights Report at 33.
Consumer Rights Report at 35.
Negligence Review Panel, Review of the Law of Negligence: Final Report, Commonwealth of Australia, (September 2002).
As allowed by s 34 of the Interpretation Act 1987 (NSW).
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Decision last updated: 23 October 2020
Parties
Applicant/Plaintiff:
Tapp
Respondent/Defendant:
Australian Bushmen's Campdraft & Rodeo Association Ltd
PAYNE JA: On 8 January 2011, Emily Tapp, the appellant, who was then 19 years old, participated in a campdraft event at Ellerston, New South Wales. The event was organised by the respondent, the Australian Bushmen's Campdraft & Rodeo Association Ltd ("the Association"). She fell from her horse while competing on 8 January 2011 and suffered a significant spinal injury. The appellant commenced proceedings in the Supreme Court seeking damages for personal injury arising out of the accident. The parties agreed before the primary judge upon quantum in the amount of $6,750,000. Following an eight day hearing in April, May and October 2018, Lonergan J, the primary judge, found in favour of the respondent: Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506.
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 out yard at least two or three times to demonstrate 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 rider then 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. The Ellerston Campdraft arena, the scene of the appellant's tragic accident, was an arena with a course set to the left. 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. Points are awarded for horsemanship and control of the beast with set time limits.
Mr Darren Shorten, a Director of the Hunter Zone of the Association, gave an unchallenged description of campdrafting thus:
"[6] … 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."
The appellant had been riding horses since she was five and involved in campdrafting events since she was six. She had competed in numerous junior campdrafting events. She had won a number of trophies and ribbons from the age of eight. From about the age of 12, from January to March each year, the appellant and her family would travel throughout NSW to participate in the Association's campdrafting events. They would travel to approximately four or five campdraft competitions a year. The appellant did well at these events.
On 17 December 2010, the appellant's sister Courtney sent an email to Leanne Shorten, who she knew as the Secretary of the Ellerston Campdraft, nominating the appellant in the Ladies' Campdraft for Ellerston. The appellant was going to compete on two horses, "Xena Lena" and "Chiquita". The primary judge found that the appellant's case below was that there was a contract between the appellant and the Association comprised by this email from 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".
The Ellerston campdraft event was scheduled to take place between Friday 7 January 2011 and Sunday 9 January 2011. This was the first time that the appellant had competed at Ellerston. She arrived at Ellerston late on Friday afternoon, 7 January 2011. Her father had arrived a few days earlier with the horses.
On Saturday 8 January 2011, the appellant 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, the appellant's father offered her his place in the Open Campdraft, riding on his horse, Xena Lena. A fresh entry form was not required. The appellant had ridden Xena Lena on many occasions, recreationally and at campdrafts, including on the previous weekend at another campdraft competition.
The appellant warmed up Xena Lena and returned to the arena area but she was too early and so left again to go to a grassy area about 200-250 metres away. 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 the event was delayed. The delay was because various people, on behalf of the Association, were inspecting the arena and deciding whether it was safe to continue the event. The appellant waited for about five minutes and then the event recommenced. In the course of competing, in circumstances I will describe in greater detail, the appellant's horse fell and the appellant suffered catastrophic injuries.
The primary judge concluded that the appellant was engaged in a dangerous recreational activity within the meaning of s 5L of the Civil Liability Act 2002 (NSW). That finding is not the subject of appeal. In relation to the pleaded defence that the risk of harm to the appellant was here obvious within the meaning of s 5F of the Civil Liability Act, her Honour found:
"[145] 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.
[146] 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."
Whilst her Honour concluded on a contingent basis that s 5M of the Civil Liability Act provided a further basis upon which to reject the appellant's claim, having regard to the subsequent decision of this Court in Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, it was common ground that her Honour's contingent reasoning could not be supported.
In relation to the Australian Consumer Law (ACL) (contained in Sch 2 of the Competition and Consumer Act 2010 (Cth)), her Honour found that in the amended statement of claim the appellant asserted that, by agreement between the Association and the appellant, she competed at the campdrafting event and that there are a number of terms implied by s 60 of the ACL in that agreement. Her Honour was not satisfied that the documents and events identified by the appellant as comprising the contract created a contractual relationship between the appellant and the Association. Her Honour concluded that on the way the case was advanced by the appellant below, there was no basis to import the terms argued for by the appellant in the pleaded agreement and no role for the implication of the statutory terms.
Her Honour rejected the appellant's claim that a breach of the duty of care owed to the appellant had been established. What was required in taking reasonable care was for an informed decision to be made about whether it was safe to continue with the competition. Hindsight was not to inform this decision. Her Honour concluded that the fact that ground preparation could also have involved ploughing, if a view was reached that the ground was not "soft sand or loam", could be seen as "doing something a different way" which did not itself give rise to or affect liability. The fact that the arena was ploughed for 3 hours on the day after the appellant's fall did not affect liability and did not constitute an admission of liability. Breach of duty of care was not established by the appellant.
Her Honour found about a separate "volunteers" defence under s 61 of the Civil Liability Act that:
"[225] 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 [Association] if any vicarious liability allegation is asserted, although no such allegation is evident on the pleadings.
[226] 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 [Association] which is not admitted and not proved on the balance of probabilities."
In addressing the question of breach of duty, there was an initial question about the surface of the arena at Ellerston which was not satisfactorily addressed in the evidence. The Association's Rule Book which was in evidence relevantly stated:
"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."
Her Honour found that the arena was aerated but not ploughed until the day after the appellant's fall. Her Honour recorded that what was meant in the Association Rules by "loam" remained unclear. Although there were some photographs in evidence, there was no reliable evidence before the primary judge about the composition of the surface of the arena at Ellerston. To the extent that some of the photographs in evidence appear to show that the surface was grass, Senior Counsel for the appellant confirmed in his address that this was not how the case was conducted by the appellant before the primary judge. The appellant did not conduct a case based on a breach of the Committee Rules set out above. It would be unfair to conclude on the basis of those photographs that there was a breach of the Rules as this is an issue which, if raised before the primary judge, could have been addressed by evidence.
There was expert evidence about the soil quality of the surface of the arena at Ellerston, to which the primary judge gave little weight. Her Honour concluded that the evidence from Mr Tapp, the appellant's father, that "Ellerston is rich black soil country" told her nothing relevant about the surface of the arena. There was, in truth, no relevant evidence at the trial about the composition of the surface of the arena at Ellerston.
There was some limited lay evidence about the condition of the surface of the arena and, in particular, whether and to what extent (if any) it had deteriorated during the day on Saturday 8 January 2011. In her statement dated 18 December 2013, the appellant described the circumstances of her fall in 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."
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 …"
The primary judge found that nothing turned on these slightly differently worded descriptions.
There was some evidence given by the appellant's sister Courtney in her statement of 31 July 2017 about the surface of the arena. She gave the following description of what she saw of the moments preceding the appellant's fall:
"[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 slid from under it and the horse and Emily fell.
[24] My belief is that the ground started slippery and got worse throughout the day.
[25] The ground was not prepared properly in my opinion because it was not dug evenly. I recall seeing places which were dug up deep and there were clumps of dirt then there were other areas where it was shallow and slippery."
In his statement of 31 July 2017, the appellant's father describes what he saw thus:
"[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."
There is no doubt that it was established that immediately prior to the appellant's horse falling its legs slid. What was left unproven was the reason for that slide. At the heart of the appellant's case on the appeal was the submission that a deterioration of the surface of the arena was a cause of the appellant's horse falling. The appellant relied, in particular, upon Exhibit 8, an Incident Report prepared for the Association, which referred to "7 falls over the course of the day" on 8 January 2011. No description of any of those falls or any reason for those falls was given in the Incident Report.
Another key document was Exhibit 9, the Open Draft Draw, which contained handwritten timings on the right side of the page, the origins of which were unexplained. The primary judge found that four falls were noted on Exhibit 9 occurring before the appellant's fall. Her Honour found that:
"[72] 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 [the appellant'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. 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." (Footnote omitted, emphasis in original.)
Her Honour concluded that the photographs tendered, Exhibit O, were not sufficiently explained by evidence to allow her to draw any conclusion other than that they showed two men falling from their horses in what looks like an arena. They did not assist her Honour in drawing any conclusion about relevant issues, other than that it was agreed they showed two of the people who fell on that day. Having independently viewed those photographs, the description given by the primary judge was correct. The photographs do not establish anything relevant about the surface of the arena, whether it was slippery or whether it had deteriorated from its condition earlier in the day. If anything, those photographs tend to support the evidence led on this topic from Mr Shorten in his statement that "[t]he surface wasn't wet, it was moist in parts. Dust was still flowing up."
Although a centrepiece of the appellant's case in this Court was the cross-examination of the only lay witness for the respondent, Mr Shorten, on this issue, he was of no real assistance:
"Q. The fact is the horse's feet, the front feet went from under her, slid, and she went down on one side, that's what you saw isn't it?
A. Yeah the horses feet out from under yeah.
Q. I'm sorry?
A. Yeah the horses feet slipped and she fell.
Q. But she didn't go end over end did she, the horse I mean, they went sideways? Are you having trouble with that?
A. Yeah I can't remember exactly how it.
Q. What are you saying?
A. I can't remember exactly how it fell."
I will return to Mr Shorten's evidence which is relied upon by the appellant in a number of other respects. For present purposes, however, Mr Shorten's evidence did not establish that a cause of the appellant's horse falling was deterioration in the condition of the surface of the arena.
There were on the evidence a number of reasons why campdrafting carries a risk of a horse slipping and falling. Those reasons include the speed the horse is travelling, the complexity of the manoeuvre being made and the qualities of the horse. Mr Shorten's evidence that the risks of campdrafting include a risk that the "horse could fall by losing its footing" was not challenged. The appellant did not prove that the appellant's horse slipped because of any deterioration in the surface of the arena.
The fact that other riders had fallen earlier in the day (and there was conflicting evidence about whether four or seven riders had fallen earlier) does not establish, in and of itself, that the surface of the arena was dangerous or unsuitable for a campdrafting event. The appellant's case before the primary judge was that the event should have been stopped no later than immediately after the fall of a Mr Piggott. Mr Piggott fell shortly before the appellant. There was no evidence about why Mr Piggott fell, where Mr Piggott fell, or whether Mr Piggott suffered an injury. There is no evidence that Mr Piggott's fall had anything to do with the surface of the arena. The same absence of evidence applies with respect to the falls earlier that day. In the absence of that evidence, the appellant did not establish that Mr Piggott's fall, or any earlier fall, should have led the Association, acting reasonably, to stop the competition, plough the arena and/or warn competitors that the site of the campdrafting event had become unsafe.
The Incident Report stated that as part of the campdrafting competition, over 700 individual rides had taken place on the arena surface over the two days before the appellant's accident. The appellant, her father and her sister had ridden on the arena surface that day. The appellant had ridden on the arena twice that day; her father three or four times and her sister Courtney three times. The appellant's father, who was a very experienced campdrafter had, after 5pm on that day, arranged that the appellant should take his place in the open event that evening. It was not suggested that he would have done so if he harboured any concern about the surface of the arena.
The appellant relied upon evidence given by Mr Shorten that:
"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'".
After Mr Stanton had ridden away, Mr Shorten conferred with Mr Gallagher, who was the judge of the campdrafting event, and Mr Young, who was the Chairman of the Members' Representative Council and a director of the Association. After Mr Stanton's remarks were reported, Mr Young said "the surface is okay. Competitors need to ride to the condition of the ground" and Mr Gallagher said "yes, keep it going". Mr Shorten then spoke to two competitors who had fallen from their horses earlier in the day, Mr Gillis and Mr Sadler. Mr Gillis attributed his fall to the fact that "I rode too hard. I thought I had a chance of making the final". Mr Sadler said "I am annoyed because I fell just before the gate which meant I didn't get a score". Messrs Gillis and Sandler did not blame the arena surface for their falls. Later that day, Mr Stanton again approached Mr Shorten and said "I think you should do something about this event. I think the ground is unsafe". Mr Shorten spoke again to Mr Gallagher, Mr Young, Mr Smith (another Members' Representative Council board member) and Mr Callinan and reported Mr Stanton's concern. It was agreed the campdrafting event should continue.
The evidence before the primary judge was that Mr Stanton's complaints about the state of the arena surface were considered by a group comprising Mr Shorten, Mr Young, Mr Gallagher, Mr Callinan and Mr Smith, all of whom were experienced in organising and conducting campdrafting events. That group considered that the condition of the surface in the arena was not unsafe for campdrafting. Mr Shorten, Mr Sadler, Mr Young, Mr Smith and Mr Gillis had been competitors who had ridden on the arena surface that day. They also had family members who had competed. One of the group who considered Mr Stanton's complaint, Mr Young, competed on the arena surface after making the decision not to suspend the competition and before the appellant had her accident.
The expert evidence led at the trial was of no assistance in addressing this issue. A report prepared by Douglas Partners, also relied on by Dr Kirchhof, a soil scientist, analysed soil samples collected from the property "Belmont" on 30 October 2013. This site was said to be a former campdraft arena located in Ellerston. The primary judge found at [74] that the evidence did not establish whether this was the campdraft arena in 2011 or whether the soil had changed since then. Expert evidence led by the appellant about the soil quality and the surface of the arena at Ellerston was based on an assumption that there was a "31.6 mm rainfall event" prior to the appellant competing in the open campdraft. Her Honour found that there was no evidence that this rainfall event occurred. The only evidence about rainfall was contained in the Incident Report where it was stated that there was "moisture from rainfall earlier in the week", the statement of Mr Tapp that "it had rained before the day of the accident" and the statement of Mr Shorten that "from memory on Wednesday 5 January 2011 it was raining at my house" (which was in the vicinity of Ellerston). Her Honour gave little weight to the expert reports about the condition of the arena. No complaint is made by the appellant about that finding. No complaint was made by the appellant that the primary judge should have found that the arena surface had become slippery by reason of rainfall during the day.
There was also expert evidence from a Mr Doughty, to the effect that because of the increased risk to competitors and horses, the competition should have been halted after Mr Piggott's fall at 6.36pm at the latest. Her Honour concluded about his evidence that:
"[80] 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.
…
[82] 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.
…
[86] 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 …
[87] 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'." (Footnotes omitted, emphasis in original.)
Mr Doughty's evidence was of no assistance and was correctly regarded in that way by the primary judge. No complaint is made by the appellant about her Honour's treatment of that evidence. No complaint was made by the appellant that the primary judge should have found that the arena surface had become slippery by reason of standing water on the ground.
The crux of the appellant's case in this Court involved reliance upon concessions made by Mr Shorten in cross-examination. The Ellerston District Sport Club Incident Report stated:
"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."
This "renovator" aerated the soil and did not plough the arena surface. Ploughing took place on the morning of 9 January 2011, after the appellant's fall. Mr Shorten agreed that:
"Q. The condition of the ground as it was when she had her fall had not deteriorated between the time of her fall and when the work started on it at 5am on the Sunday, is that correct?
A. There hadn't been another run on it so I'd - we did--
Q. Is that a yes?
A. It hadn't deteriorated, no.
Q. The last time anything had been done about the surface of the ground was on the Friday evening wasn't it?
A. To my knowledge yes."
Mr Shorten explained that the aerator had been used in the arena on Friday evening. The plough was used on Sunday morning 9 January 2011:
"Q. The aerator is normally the second part of a two stage process, isn't it?
A. We've only ever used an aerator on the ground. We've never ploughed the ground with this power tool."
Mr Shorten was asked about the use of the plough:
"Q. The ground must have been in a terrible state to require that?
A. Well, we didn't want another accident.
…
Q. Does that not suggest that the ground was in such a terrible state by the time of Emily's fall that it needed this extraordinary measure of actually disc ploughing it, not just harrowing it, but disc ploughing it. Isn't that what it tells us? You have to answer.
A. We used a disc plough because we thought at the time that would be the reason for no more falls.
Q. Do you agree with me that the fact that a disc plough was used demonstrates how bad the condition was of the ground at 6.45pm on Saturday, 8 January 2011?
A. Yes, I would."
The questions asked and the answers given are plainly addressing the relevant events with the benefit of hindsight. To succeed on this ground the appellant needed to establish that a cause of the appellant's fall was a deterioration in the surface of the arena and that the exercise of reasonable care would have caused the Association to have acted in one of the three ways identified at [22] above. Mr Shorten's acceptance that using the disc plough on Sunday 9 January "demonstrates how bad the condition was of the ground at 6.45pm on Saturday, 8 January 2011" does not address these issues. The appellant's reliance on this evidence rather suggests a submission that the arena surface had become slippery as it was hard and compacted when it should have been soft. That, however, was not the way the case was advanced before the primary judge or in this Court. That case hinged on the submission that "the arena surface significantly deteriorated between the first 'bad fall' at 6.14pm and the appellant's fall shortly after 7pm."
What was said to be a key admission made by the Association was Mr Shorten's evidence as follows:
"Q. Then you see by that stage, however you look at it, Mr Stanton had raised significant safety issues about that arena, hadn't he?
A. Yes.
Q. Mr Shorten, he was right, wasn't he?
A. Yes, he was."
Again, the questions are asked and the answers are given using hindsight. The primary judge found at [211] that the question of what reasonable precautions the Association ought to have taken must be determined having regard to what the relevant actors knew and did at the time, eschewing hindsight. That is the correct approach, as mandated by the Civil Liability Act. Section 5B of the Civil Liability Act requires standing back from known events and asking, in a prospective, objective way, what a reasonable person would have done in the circumstances. The reasonable precautions of which s 5B(1)(c) speaks must be assessed prospectively: Menz at [110]-[115].
What was required in taking reasonable care was for an informed decision to be made as to whether it was safe to continue with the competition, or whether, as the appellant submitted, the campdraft competition should have been stopped, the ground ploughed and/or the appellant warned that "the ground at the site of the campdrafting event had become unsafe".
I am not satisfied that it had been shown in any of the respects pleaded by the appellant that the Association breached its duty of care.
As to whether the Association should have stopped the competition, as I have said, it was not established, other than by evidence given in hindsight, that the surface of the arena had become unsafe or that the exercise of reasonable care in all the circumstances required the event to be stopped. The bare fact of the number of falls, in the absence of any evidence that those falls were causally related to any deterioration in the surface of the arena, does not establish that the exercise of reasonable care in all the circumstances required the event to be stopped.
As to whether the Association should have ploughed the ground on the arena prior to commencement of competition on 8 January 2011, the fact that ploughing could have occurred earlier than it did is not to the point. The fact that the arena was ploughed on the Sunday morning would be an impermissible use of hindsight in addressing the question posed by s 5B(1)(c). The fact that the arena was ploughed for three hours the day after the appellant's fall did not constitute an admission of liability. It may have been open to the appellant, by reference to the Rules of the Association and the evidence of the appellant's sister to have conducted a case that the surface of the arena required the use of a plough, rather than the renovator which was used, prior to commencement of competition on 8 January 2011. That, however, was not the case which was conducted by the appellant and it would be unfair to the Association to permit that case to be raised for the first time on appeal. As the written submissions in this Court put it, "the essence of the appellant's case was that following a number of falls on the Saturday afternoon, in particular after the fall by Mr Piggott, there should have been steps taken by the respondent which would have prevented the appellant's fall". I have addressed the absence of evidence about the circumstances of those falls and the connection, if any, with the arena surface at [33]-[52] above. It was not demonstrated that the exercise of reasonable care in all the circumstances required the arena surface to be ploughed on 8 January.
As to whether the Association should have warned the appellant that the ground at the site of the campdrafting event had become unsafe the same conclusion applies. The appellant did not establish, other than by a reference to hindsight, that the surface of the arena had become unsafe for campdrafting.
I would dismiss ground 1 of the appeal.
If it were necessary to do so, I would have rejected ground 1 of the notice of contention. The appellant is correct that the Association's complaint that it did not have the power to suspend the competition is not open to it given the admission made in the defence that "On 8 and 9 January 2011, the Defendant organised, managed and provided a competitive campdrafting event at Ellerston in the State of New South Wales".
The primary judge formulated the relevant risk here as being:
"[131] … 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."
In written submissions, the appellant formulated the relevant risk of harm as being:
"that she fell because her horse lost its footing due to the deterioration in the ground surface which, to the knowledge of the respondent, became increasingly unsafe in the period prior to the appellant's accident."
That formulation was refined in oral submissions to become:
"the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena."
An initial problem with each of the formulations proffered by the appellant of the relevant risk of harm is that each assumes that it was established that the appellant's horse had slipped whilst in the campdraft competition by reason of the deterioration of the surface of the arena. As I have said, the appellant did not identify the way in which it was alleged the surface had deteriorated. The nature of the deterioration is, however, critical to the appellant's formulation of obvious risk. If the deterioration of the surface is to be part of the identification of the risk, the nature of the deterioration must be part of that formulation also. It is a quite different thing to say, on the one hand that it was an obvious risk that the surface had deteriorated by reason of becoming hard and compacted when it should have been soft and, on the other, that the surface had deteriorated by reason of becoming soft when it should have been harder by reason of increased moisture on the ground.
The appellant submitted that her claim was, in essence, that the deterioration in the surface of the arena in the hour before her ride was a hidden danger in the same way as the excess polish in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136. The appellant relied heavily on a concession made by Mr Shorten that the surface of the arena was one factor over which the respondent had control, and which was extraneous to the activity itself.
In response to the primary judge's reference to the Court of Appeal's decision in Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 at [153] as supporting the proposition that it is unnecessary and undesirable to define the particular risk of harm with a high degree of particularity, the appellant made the following submissions:
1. the passage cited states that generally it is unnecessary and undesirable to so define the risk;
2. the passage cited itself relies upon the decision in Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 in which the Court of Appeal in fact regarded it as necessary to define the particular risk of harm with particularity. The same approach was said to have been adopted in Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146. Decisions such as C G Maloney, as well as Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 and Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355 are further examples of where the description of the relevant risk includes some elements of breach and the causal connection between the breach and the injury. In each of these cases, in the language of Leeming JA in Menz at [62], a relatively high degree of specificity was required in order fairly to capture the risk which materialised causing harm to the appellant;
3. these are cases in which the question of the particularity of the description of the risk arises in the context of consideration of the "risk of harm" for the purposes of Civil Liability Act s 5B, and not for the purposes of the statutory defences that depend for their operation upon the definition of "obvious risk" within the meaning of Civil Liability Act s 5F.
It was submitted that the statutory defences informed by s 5F function retrospectively. It was submitted that the inquiry is whether, looking backwards, the risk of harm that materialised in those circumstances was obvious to the plaintiff. This was contrasted with s 5B, which relies on a prospective inquiry, meaning there is a level of generality in the description of the risk of harm.
In considering grounds 2 and 3 an initial point made by Basten JA in Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 bears emphasis:
"[14] Section 5L thus contains two descriptors qualifying the concept of 'risk'. The risk must be 'obvious' in the sense of a risk which would be obvious 'to a reasonable person in the position of [the plaintiff]'; further, the activity must be one which 'involves a significant risk of physical harm.' In Fallas v Mourlas Ipp JA stated that 'there is nothing in s 5L that indicates that the obvious risk that materialises must be one of the significant risks that transforms a recreational activity into a dangerous recreational activity.' While that may be true, s 5L is concerned with the materialisation of an obvious risk 'of' a dangerous recreational activity; in most cases it will be irrelevant whether that risk is also a significant risk of physical harm."
The appellant's suggested formulation is inconsistent with the approach of each member of the Court in Singh, who referred with approval to the approach of Leeming JA in Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 on this question. There his Honour said at [70]-[74]:
1. the obvious risk is in principle to be specified with a degree of generality. There may well be no single "correct" specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient;
2. the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required;
3. a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight;
4. there is much to be said for the view that "as a result of" in s 5L, in a context which speaks of harm materialising from an obvious risk, requires a close causal connection between the harm and the risk which materialises. The section is directed to harm which materialises as a result of a risk of which the plaintiff ought reasonably to have known. If the risk is obvious, it may be expected that there is a close causal connection between the risk which materialises and the harm; and
5. the proper characterisation is fact-dependent, and will turn on the evidence in any particular case of what occurred, and why the risk is one that is obvious.
In Singh, at [143]-[150], I set out a number of the cases where it has been held that the risk referred to by s 5L of the Civil Liability Act should be assessed at a reasonable level of generality. The risk proffered by the appellant does not meet that description.
The principle stated in Singh, at [153], was that a formulation of the risk should not leave out the immediate cause or mechanism by which the injury was actually suffered. On that approach, falling from a horse describes the cause of the injury, but not the risk against which the defendant must take precautions. A formulation of the risk of harm which leaves out altogether the "true source of potential injury" (Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]) and the "general causal mechanism of the injury sustained" (Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]), is not an appropriate formulation of the risk of harm.
If it were a sufficient description of the general causal mechanism of the injury to describe the risk as "the appellant's horse falling in the course of the campdrafting competition", the risk was obvious. Even if the risk were correctly framed as being "the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena", the injury suffered by the appellant was the manifestation of an obvious risk.
In my view the former is far too broad; it would include the risk arising from a misjudgment by the appellant. For reasons already addressed, the latter is also inadequate because, although it refers to the state of the arena, it fails to identify the nature of the deterioration which led to the risk of a fall. But in either case, the risk was obvious to a reasonable rider competing in these kinds of events, in which the appellant had many years of experience.
Prior to the appellant's fall, over 700 individual rides as part of the campdrafting competition had taken place on the arena surface. The appellant, her father and her sister had ridden on the arena surface that day. The fact that, after such a day, the surface of the arena would have "deteriorated", heightening the risk of a horse slipping and falling, would have been obvious to a reasonable person in the position of the appellant. Assuming that it had been established that the appellant's horse had fallen by reason of that deterioration in the condition of the arena surface, that would nevertheless have been a manifestation of an obvious risk of the dangerous recreational activity.
Finally, I reject the appellant's submission that the relevant risk was "something quite unexpected". The appellant's case appears to be both that the appellant's fall was "unexpected" and was simultaneously entirely predictable given the earlier falls. Assuming, contrary to my conclusion in relation to ground 1, that it should have been clear to a reasonable person that by reason of the number of falls between 6.14pm and 7pm the arena surface had become unsafe for campdrafting, that risk was obvious to a reasonable person, even if the appellant did not personally know of the risk: s 5L(2). The injury suffered by the appellant was the materialisation of that obvious risk, even if the risk is formulated as being "risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena." The fact, if it be the fact, that the risk of the appellant's horse falling due to a deterioration in the surface of the arena had a low probability of occurring, and was unexpected, fails properly to take into account s 5F(3) of the Civil Liability Act. It is not correct that if the risk is proven to be a rare one, or not within the scope of what a participant was entitled to have "expected", it is therefore not an obvious risk.
I would reject grounds 2 and 3 of the notice of appeal.
I have concluded that her Honour erred in so finding. The liability of the Association in this case was alleged to be direct. I reject the Association's submission that "the only liability which could be imposed upon the respondent was some variety of vicarious liability." Such a conclusion is inconsistent with the pleadings. No vicarious liability was alleged, as the primary judge found at [225].
The Association's broader submission about vicarious liability is also inconsistent with the relevant principles of attribution of corporate liability. As Basten JA explained in Hallmark Construction Pty Ltd v Brett Harford [2020] NSWCA 41:
"[73] It is undoubtedly true, as the judge noted, that a corporation such as Copeland can only act through human agency. It is therefore necessary, as explained by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, to have a principle of attribution by which to determine whose acts (and knowledge) are the acts (and knowledge) of the corporation. However, an individual entrepreneur will often act through other human agents. In each case the question will be whether that person's acts or knowledge are to be attributed to the principal, with a particular legal consequence. To describe Mr Isaia as Copeland's 'agent', or as acting with Copeland's authority, will not sufficiently answer the question. It is also necessary to identify the legal relationship under which authority is conferred and acts are done."
The amended defence admits that "the organising, managing and provision of the campdrafting event was done by volunteers being members of the committee responsible for organising, managing and providing the event". The appellant pleaded:
"5. On 8 and 9 January 2011 the Defendant organised, managed and provided a campdrafting event at Ellerston in the State of New South Wales ('the campdrafting event')."
The Association pleaded in its defence:
"5. In answer to paragraph 5, the Defendant:
(a) admits the paragraph;
(b) says that at all times the Defendant has been engaged in work which is not for private financial gain and which has been done for a charitable benevolent sporting and cultural purpose; and
(c) says further that the organising, managing and provision of the campdrafting event was done by volunteers being members of the committee responsible for organising, managing and providing the event ('the Committee')."
Further, Mr Shorten was admitted on the pleadings to be a director of the Association. On the principles derived from Tesco Supermarkets Ltd v Nattrass [1972] AC 153, Mr Shorten was a directing mind of the Association. On the principles in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, Mr Shorten's acts and knowledge are properly to be attributed to the Association.
The fact that Mr Shorten and other volunteers at the Ellerston Campdraft would not, if sued, have been personally liable is not to the point. The pleading asserted that the Association was directly liable for the organising, managing and provision of the campdrafting event and the defence admitted that the Association was so responsible. The attempt to characterise the admission as limited to one concerning vicarious liability fails. For that reason, s 3C of the Civil Liability Act, which is limited to vicarious liability, does not assist the Association.
Section 61 of the Civil Liability Act confers upon a "volunteer" an immunity in respect of their "personal civil liability" for acts or omissions done "when doing community work" that is "organised by a community organisation", or "as an office holder of a community organisation".
A "volunteer" is "a person who does community work on a voluntary basis". "Community work" is defined by reference to certain activities that are done "not for private financial gain". A "community organisation" is a body corporate, a church or religious organisation, or an authority of the State that organises the doing of community work by volunteers.
There is a clear distinction drawn in the language of the provisions between the organisation that arranges the doing of community work by volunteers, and the volunteers themselves. It is only the latter who obtain the direct benefit of the immunity conferred by s 61. A similar distinction is drawn between the volunteer and the community organisation by the terms of the exclusion in s 64, which operates where the volunteer has acted outside the scope of the activities authorised by the community organisation, or contrary to instructions given by the community organisation.
I have concluded that reading Part 9 of the Civil Liability Act as a whole, a "volunteer" can only be a natural person.
Even assuming that a body corporate is capable of being a "volunteer" within the meaning of Part 9, the other requirements of s 61 are not satisfied here. If the respondent is a "volunteer", there is no alleged "community organisation" which has organised the doing of community work by the Association or any alleged "community organisation" of which the Association was an office holder.
I would allow ground 5 of the notice of appeal. As this was an alternative basis for the primary judge's conclusions this does not affect the ultimate outcome of the appeal.
The Final Report of the Consumer Council analysed the New Zealand legislation in some detail and concluded that it had operated well with high levels of consumer awareness and satisfaction since its introduction in 1993. The chief advantages were said to be that it "achieves greater clarity in consumer rights and greater certainty in available remedies". [5] The Consumer Council accordingly recommended the introduction of similar statutory guarantees in Australia. The ACL implemented that recommendation.
Notwithstanding the nature of the consumer guarantee in s 60 of the ACL, the only reference to s 60 in the amended statement of claim was in a section under a heading "Contractual Claim" immediately before paragraph 83 of the pleading. After identifying the alleged terms of the agreement the subject of the "Contractual Claim" the pleading alleged:
"85. Pursuant to s 60 of the Australian Consumer Law it was a term of the agreement between the Defendant and the Plaintiff that the campdrafting event would be organised, managed and provided with due care and skill."
Breach of the agreement alleged was pleaded at paragraph 86. There was a negligence pleading at paragraphs 87 to 93. The breach of duty of care pleading made no reference to s 60 of the ACL.
The only potentially relevant causation pleadings was:
"94. As a result of the Defendant's breach of agreement the Plaintiff fell from her horse and suffered spinal injury."
Despite a reference to ss 236 and 237 of the ACL on the front page of the pleading, the only pleading claiming damages was:
"DAMAGE
98. As a result of the Defendant's breach of agreement and breach of duty of care the Plaintiff has suffered injury, loss and damages.
Particulars of Injury
98.1 Permanent spinal injury, namely incomplete (T11) quadriplegia.
Particulars of Loss and Damage
98.2 The Plaintiff is unable to independently undertake many of the usual activities.
98.3 The Plaintiff is unable to engage in any paid employment.
98.4 The Plaintiff has required significant medical treatment.
Further particulars of loss and damage will be provided."
The essence of the appellant's case about s 60 below was summarised in a document titled "Outline of Plaintiff's Submissions on Contractual Claim", dated 30 August 2018, as being that the "Plaintiff must also prove that she competed in the campdrafting event pursuant to a contract between her and the Defendant".
The appellant's case was clearly conducted on the basis that the statutory guarantee in s 60 of the ACL was incorporated into the contract alleged in the amended statement of claim. This is made clear in the section under the heading "Implication of Statutory Terms" in the appellant's written submissions to the primary judge. There was no alternative claim that the statutory guarantee in s 60 applied regardless of the existence of a contract. The appellant's case, and the only case put to the primary judge about the statutory guarantee in s 60 of the ACL, was that "[t]he [ACL] therefore applies to the contract and imports the s 60 guarantee of due care and skill into it".
Unsurprisingly, the primary judge addressed the only case conducted by the appellant, namely that the statutory guarantee in s 60 of the ACL was an implied term of the contract between the appellant and the Association.
The primary judge was not satisfied that the contract alleged by the appellant had been established. The primary judge at [186] was not satisfied that the documents and events identified by the appellant as comprising a contract did create any contractual relationship between the appellant and the Association. Therefore, the appellant's case in contract failed. The primary judge said:
"[186] … 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."
The primary judge also found, at [190], that for the purpose of s 275 of the Australian Consumer Law, ss 5L, 5H and 5M of the Civil Liability Act operated to limit or exclude the Association's liability. Therefore, the appellant could not rely on the provisions of the ACL to circumvent the operation of those sections of the Civil Liability Act.
On the appeal, the appellant sought to conduct a different case about s 60 of the ACL. It was submitted that:
"While it must be accepted that the appellant's pleading and argument in the court below relied upon the statutory guarantee as a term implied into a contract between the appellant and the respondent, it is not necessary that there be a contract at all. All that is required is that there be a supply of services in trade or commerce by the respondent to the appellant as consumer."
It was submitted that the evidence established that there had been a supply of services, in trade and commerce, by the Association to the appellant and that "to the extent that there has been a failure to render the services by the respondent with due care and skill, the appellant is entitled to recover damages for contravention of the statutory guarantee". The Association objected to this reformulated case and submitted that it had been denied the opportunity of meeting that case by evidence it might have led.
I have concluded that the new argument may not be run for the first time on appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35. Quite apart from the contradiction of the way the case was run below, the Court cannot now be satisfied that no evidence could have been adduced by the Association which by any possibility could have answered the new arguments.
No different conclusion follows from the decision relied upon by the appellant: Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4. Brocklands was a case where the Tasmanian Full Court affirmed the principle that a pleading under the relevant Tasmanian rules was required to identify the material facts, and not the existence or scope of an asserted duty of care. Blow CJ (with whom Pearce J agreed) quoted the relevant rule 227(3) at [14] that: "Every pleading is to be expressed so as to give reasonably explicit notice to any other party of all grounds of action ... on which the party pleading intends to rely at the trial". The Tasmanian Full Court determined that the trial judge had erred in failing to accept the submissions of a party that a case was open on the pleadings.
The case conducted by the appellant below did not encompass, on any view, the allegations sought to be advanced on appeal. No notice was given to the Association that the appellant might seek to rely upon s 60 of the ACL other than as an implied term of an agreement.
Whilst it is correct, as the appellant submitted, that the Association did not itself plead a contract to seek to take advantage of any defence available by reason of s 275 of the ACL (of the kind discussed by this Court in Menz at [28]-[30]), this rather emphasises the Association's point that by reason of the pleading and conduct of the case by the appellant the Association lost a chance to defend itself from a statutory guarantee case of the kind now sought to be advanced. The appellant's submission that it "was a matter for the respondent to choose the grounds on which it defended the appellant's claim at trial" is correct, but further emphasises the prejudice arising from the way the case is being argued now. I would reject ground 6 of the notice of appeal.
Finally, on the findings about the absence of proof of breach of duty by the Association, even if the claim under s 60 of the ACL in the way now presented were available, it must fail.
If I am wrong in these conclusions, however, I would reject grounds 2 and 3 of the Association's notice of contention. I am satisfied that the Association provided services, as defined, to the appellant and that those services were supplied in trade and commerce. I will briefly address each ground.
As to ground 2, in Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471; [2014] FCAFC 155, the Full Federal Court considered the definition of "services" in s 4(1) of the Competition and Consumer Act, although not for the purposes of construing the predecessor to s 60 of the ACL. The Court considered that the use of the word "includes" in the definition of "services" in s 4(1) of the Competition and Consumer Act indicated that the definition was not intended to be exhaustive at [50]-[52]. This construction was supported by the distinction in s 4(1) itself between inclusive definitions and definitions using the word "means". Furthermore, while the historical context could not displace the statutory text, the legislative history supported the Court's construction of the definition of "services" as being non-exhaustive. The Court accepted that unless a contrary intention appears in the substantive provisions being applied, the ordinary meaning of "services" should be adopted along with the various kinds of services specified in the definition itself: at [53]. Their Honours held that the word "services" has a wide application, although it usually connotes the provision of some form of assistance or accommodation by one person to another: at [54].
In Scenic Tours, in a part of the judgment about which special leave was refused, this Court held that although Obeid v ACCC was concerned with provisions of the Competition and Consumer Act, the Court's analysis applies with equal force to the definition of "services" in s 2 of the ACL. As Sackville AJA explained in Scenic Tours:
"[168] The definitions of 'services' and 'supply' in s 2 of the ACL are relevant not merely to the Consumer Guarantees but to a variety of substantive provisions. For example, s 29(1)(b) of the ACL prohibits a person in trade or commerce making a false or misleading representation that services are of a particular standard or quality; s 40(1) prohibits a person asserting without reasonable cause a right to payment from another person for 'unsolicited services'; and s 278 provides a remedy in certain circumstances to a consumer who is party to a 'linked credit contract', a term defined by reference to the provision of credit in relation to the supply of services to a consumer. The definition of 'services' in s 2 of the ACL can therefore be said to have a protean quality in the sense that the language may be understood differently depending on the context in which it has to be applied." (Footnotes omitted.)
I have concluded that the organisation, management and provision of the Ellerston Campdraft, which on the pleadings was admitted to have been done by the Association, comprised the provision of "services" by the Association for the purposes of s 60 of the ACL. If those services need to be further categorised I would describe them as "Campdraft organising services". The Liability Waiver Form the Association relied upon at trial recognised that the Association was providing such services in the following passage: "The Provider acknowledges that they are providing the Recreational Services detailed below", namely "Campdraft, Rodeo and other sanctioned events".
I also reject the Association's submission that it was not demonstrated that the Association provided the services I have described. As I have said, on the pleadings this was admitted by the Association. If it were necessary to consider the issue, I would reject ground 2 of the notice of contention.
As to ground 3 of the notice of contention, the definition of "services" includes benefits and facilities provided in trade or commerce. There is an extended definition of "trade or commerce" in s 2 of the ACL which includes "any business or professional activity (whether or not carried on for profit)". In the present case, entry to the campdrafting event involved payment of a fee for membership of the Association and payment of a separate fee for entry into the Ellerston Campdraft. There was an element of exchange between the Association and the appellant which is the hallmark of trade or commerce. The Association is properly to be characterised as a business not carried on for profit. The services supplied by the Association were supplied in trade or commerce.
If it were necessary to consider the issue, I would reject ground 3 of the notice of contention.
Payne JA did not expressly endorse a requirement that the risk be expressed in terms that include some identification of the potentially negligent conduct alleged to explain the mechanism of the fall. However, endorsement of such a requirement may be implicit in his Honour's reasoning. His Honour described a broad risk in terms similar to those adopted by the primary judge: "the relevant risk which materialised in this case was that the appellant fell from his mount" (at [156]). However, his Honour proceeded in the same passage also to have regard to the mechanism of the fall:
"That fall was caused by contact with another horse, being contact which in turn resulted from the riding of the respondent. The precise degree of negligence of the respondent's riding, including whether it is characterised as 'gross negligence' or even 'reckless', was not an essential element of the characterisation of the risk. The primary judge's conclusion was that the alternative formulation he proposed involved an obvious risk; the same conclusion is reached even if the respondent's negligence is described as 'gross' or his conduct characterised as 'reckless'."
It may accordingly be seen that the Court, by majority if not unanimously, did not accept that the risk could properly be defined in terms that failed to identify any potential negligence that explained what was alleged to have caused the relevant harm. The risk of harm in that case was injury caused by the negligent riding of another jockey. The point on which the Court was divided was the degree of particularity required in the description of that negligence. The majority considered that the risk of other riders riding unsafely and in breach of the rules was obvious and that it was not necessary to specify the relevant risk with any greater particularity than that. Simpson AJA and I considered that it was necessary to specify the nature of the riding in question, which we described as "more than the usual contact; it was an aggressive bump": at [227]. We considered that the risk that another professional jockey would conduct himself or herself in such flagrant disregard of the safety of other jockeys would not have been obvious to a reasonable person in the position of the appellant.
In the present appeal, having had the benefit of reading the judgment of Payne JA in draft, with which Basten JA agrees, I find myself again in disagreement with their Honours as to the proper identification of the relevant risk on the facts of this case. I have considered whether, having been in the minority in Singh v Lynch, I am bound in the present case to defer to the conclusion reached by Basten and Payne JJA as a matter of precedent. I have concluded that I am not. I do not apprehend any inconsistency between my conclusion in the present case and any principle or interpretation of the statute applied by the majority in Singh v Lynch.
As a result of my different conclusion as to the proper characterisation of the relevant risk and also a different view of the evidence, I would allow grounds 1, 2 and 3. As to the remaining grounds and the notice of contention, I agree with Payne JA. It follows that I would allow the appeal.
It is clear that s 5L places dangerous recreational activity in a special category for the purpose of allocating responsibility for risk. That is clear from the text of the Act and is confirmed by the Ipp Report. The Panel explained at [4.13]-[4.14]:
"On the basis of our consultations, the Panel has reached the conclusion that there is widespread and strong community support for the idea that people who voluntarily participate in certain recreational activities can reasonably be expected, as against the provider of the recreational service, to take personal responsibility for, and to bear risks of, the activity that would, in the circumstances, be obvious to the reasonable person in the participant's position. For this purpose, people who participate in recreational activities include not only 'players' but also, for instance, referees.
In reaching this conclusion, the Panel has not lost sight of the fact that many participants in recreational activities are children, whom most people would think need and deserve special protection from risks of personal injury and death. It is with this in mind that the phrases 'in the circumstances' and 'reasonable person in the position of the participant' have been used. These should give ample room for the law to develop flexibly to provide protection for people who are not in as good a position as a fully capable adult to take care for their own physical safety or to discern the risks of recreational activities in which they participate or which they observe."
However, it is also clear that the section was not intended to extinguish all liability in negligence for any injury suffered during participation in or observation of a dangerous recreational activity. The section is engaged according to the prospective obviousness of a risk of harm to a reasonable person in the position of the person subsequently injured. As explained by Gummow J in a different context (considering the criterion "reasonable foreseeability"), to impose or defeat liability according to what risk should have been obvious judged by the standard of a reasonable person is the kind of proposition "identified by Professor Stone as presenting a category of indeterminate reference" which allows for "interaction between facts and values": Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [186].
Thus, although Parliament has left it to the Court to decide whether or not a risk is obvious, regard should be had for that purpose to considerations that reflect the values and policies revealed by the text, context and purpose of the Act. As explained by Basten JA in Singh v Lynch, one relevant consideration is the matter of insurance. His Honour said at [65]:
"The preferred approach is to recognise that the identification of an obvious risk is a matter to be undertaken prospectively and without the benefit of hindsight. It therefore requires a level of generality as to the kind of risk involved, as recognised in Fallas at [55]. A high order of predictability is desirable because the practical consequence of s 5L is to identify the party who will need insurance and the nature of the risk against which insurance is required. Thus, if professional jockeys cannot sue each other for careless riding, they will need to carry insurance against the risk of injury to themselves; on the other hand, they will not need to insure against the risk of being sued by another jockey." (footnotes omitted, emphasis in original)
But while it may be accepted that prospective identification of risk requires a level of generality as to the kind of risk involved, to adopt a formulation of risk at such a level of generality that it fails to identify the potentially negligent conduct said to have resulted in the plaintiff's injury (such as "the risk that the rider would fall off the horse") would extinguish virtually any liability in negligence for a wide range of sports and other pleasurable activities. The text of the Act does not support that approach, nor does it suggest a policy that the prospect of certainty for the purpose of insurance arrangements should absolve providers of dangerous recreational activities of the need to take reasonable precautions against any risk of harm of the activity provided. In distinguishing between foreseeable risk and obvious risk, the Act contemplates the imposition of liability (subject to the other requirements of the Act) where the risk that materialised for a person engaged in a dangerous recreational activity was foreseeable to the provider of the activity but not obvious to the participant, such as a latent risk arising from an aspect of the activity within the knowledge and control of the provider (as in Leeming JA's burrowing rabbits example).
In Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, Leeming JA provided a helpful analysis of some objective criteria by which a dispute as to the appropriate degree of particularity in the specification of the relevant risk of harm might be resolved. After considering some textual indications in the Civil Liability Act on that question (at [57]-[59]), his Honour explained how "the causality embedded in s 5L [harm suffered "as a result of the materialisation of an obvious risk"] informs the specificity of the characterisation of an obvious risk": at [61]. His Honour concluded at [70] that "the obvious risk is in principle to be specified with a degree of generality" but cautioned at [71] that "if it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required".
That is consistent with the approach to be taken in specifying a risk for the purpose of determining whether it is foreseeable. In Dederer, Gummow J said at [59] that the Court of Appeal "would still have been led into error if they did not accurately identify the actual risk of injury faced by Mr Dederer". The error his Honour perceived in the characterisation of risk adopted by the Court of Appeal ("serious spinal injury flowing from the act of diving off the bridge") was that it "obscured the true source of potential injury": at [60]. Just as "the true source of potential injury" should be included in the identification of the relevant risk for the purpose of determining whether it was foreseeable, the cause of an injury that has in fact occurred should be included in the identification of the relevant risk for the purpose of determining whether it was obvious. The question is the same; the only difference is the temporal perspective from which it is being asked.
Returning to Menz, the discussion in that case illustrates that the application of s 5L is attended by a level of indeterminacy which, to borrow again from Gummow J, allows for interaction between facts and values. Cases that raise the defence under s 5L are not easy, for that reason. Some understanding of the nature of the task can be gleaned from the examples given by Leeming JA in Menz at [77]-[78]:
"To take a further analogy from Ward JA's reasoning in Campbell v Hay [2014] NSWCA 129 at [149], the obvious risk of flying in a light aircraft is that a passenger suffers harm following an emergency landing. It would be unduly particular to refer to the obvious risk being that of harm following an emergency landing by reason of failure of the propeller, or the engine, or whatever particular mechanical defect caused the emergency. That risk is ever-present, irrespective of the experience of the pilot or the maintenance of the aircraft.
Conversely, this is not a case where something quite unexpected, such as an instructor causing a young child to drive an unstable quad bike too fast as in Alameddine, means that physical harm from falling off a quad bike fails appropriately to capture what occurred. While the precise mechanism of Ms Menz's horse being spooked may not have been obvious, the fact that her horse could be spooked by some stimulus at any time was obvious."
The further example given by his Honour in Singh v Lynch of a risk that may not be obvious (set out above) illustrates that the determination as to whether a risk was "obvious" is likely to be informed by consideration of the mechanism of the injury from which it can be ascertained who was in a position to observe or control the circumstances in which it occurred.
Beyond those examples, for the purpose of determining whether a risk has been specified with "a degree of generality" but not too much, it is helpful to bear in mind the purpose for which the question is being asked. Courts are accustomed to making evaluative judgments as to how much particularity is enough in a variety of contexts. The answer will generally be found by ascertaining the level of particularity that enables every actor in the dispute and the proceedings to make the decisions and assessments he or she needs to make. Pleadings must be as brief as the nature of the case permits while providing enough particularity to enable the opponent to know the case he or she has to meet. A search warrant is not required to state the relevant offence with the precision of an indictment but should describe the nature of the offence "so as to indicate the bounds of the search, and to assess the sufficiency of what is provided from the point of view of those reading it": Smethurst v Commissioner of Police [2020] HCA 14 at [28]-[30].
At a level of generality, it can be said that the risk that the rider or the horse may fall is an obvious risk of campdrafting. Falling is an obvious risk of many recreational activities that would probably be characterised as dangerous within the meaning of s 5K: horse riding, rock climbing, bouldering, abseiling, mountain bike riding, surfing, caving, slack lining, cheese rolling, indeed any recreational activity involving the force of gravity.
However, describing the risk as the risk of falling is unhelpful in the determination of the issues raised by a claim. As explained by Leeming JA in Menz by reference to the decision in Alameddine, a description of the risk as "falling off a quad bike" did not provide adequate specificity for the purpose of determining whether liability in negligence was defeated in that case. That is because, although quad bike riding carries an obvious risk of falling off the quad bike, there are a number of reasons why a person might fall, not all of which would be obvious to a reasonable person in the position of the plaintiff.
It has been accepted that the defence under s 5L may be engaged where the risk that materialised was the risk of negligence on the part of the defendant. In Fallas v Mourlas, Ipp JA explained at [51]:
"In cases where the obvious risk is of being harmed by the conduct of a person (and not by physical features of the locale or other natural phenomena), for s 5L to become relevant the obvious risk must at least be of negligent conduct. Without negligence there could be no cause of action and no liability. Section 5L therefore may involve a plaintiff in certain circumstances having to accept the risk of another person being negligent. This is consistent with the rationale of the legislation, to which I have previously referred."
However, that is not to say that negligence of the provider or another participant is an obvious risk of every dangerous recreational activity. As the mixed result in Fallas v Mourlas illustrates, views will differ on that issue. The assessment of that question calls for assumptions to be made concerning what may reasonably be expected of others. As already noted, the majority in Singh v Lynch held that it would be obvious to a reasonable professional jockey that other jockeys might ride carelessly in breach of the rules of racing and that it was neither necessary nor appropriate, in specifying the risk that materialised, to descend to further specification of the degree of carelessness. However, in Alameddine, it was accepted that it would not be obvious to a young girl that a guide would ride his quad bike so fast that she could not safely keep up.
As already noted, the Act distinguishes between risks that are foreseeable to the provider of a recreational activity and risks that are obvious to a reasonable participant in such an activity. Only the risks that would be obvious to a reasonable participant in the position of the injured person are carved out of the scope of potential liability. Some work is left for the basic principle of personal responsibility for failure to take precautions against a risk of harm of which the provider of a recreational activity knew or ought to have known.
Payne JA has observed that the evidence in the present case established "a number of reasons why campdrafting carries a risk of a horse slipping and falling" including "the speed the horse is travelling, the complexity of the manoeuvre being made and the qualities of the horse" and a risk that the "horse could fall by losing its footing". With respect, that observation only serves to emphasise the importance of identifying the relevant risk in terms that include some specification of the mechanism of the fall. If a horse lost its footing because its hooves clipped the hooves of the steer or heifer it was chasing, that might be considered to be an inherent risk of campdrafting that could not be avoided by the exercise of reasonable care and skill on the part of the organisers, with the result that liability would be defeated by s 5I(1). Conversely, if the horse lost its footing because the organisers negligently left a tripwire across the cut out gate, their liability would be unlikely to be defeated.
My point is to illustrate that the risk that materialised must be characterised with enough particularity to enable the court to determine (and the parties to assess) whether it was foreseeable by the organisers, whether it was one capable of attracting liability (that is, not a risk that was inherent in the relevant activity) and whether it would, prospectively, have been obvious to a reasonable person in the position of the plaintiff.
I do not apprehend that analysis to be inconsistent with the principles discussed in Singh v Lynch. As submitted by Ms Tapp in her supplementary submissions, while each member of the majority in that case characterised the relevant risk in slightly different terms, there was common to each the inclusion of some description of the causal mechanism of the appellant's fall: at [68] (Basten JA); at [139] (Leeming JA) and at [156] (Payne JA).
Secondly, by late afternoon on the Saturday, concerns as to the state of the surface had in fact been brought to the attention of the Association, twice. Payne JA notes that the members of the Association who considered the condition of the surface in response to those concerns were experienced in organising and conducting campdrafting events and had all been competitors who had ridden on the arena that day. It is notable in that context that the only one of them who gave evidence was Mr Shorten. In light of the importance of his evidence on this issue I will set out the relevant part of his evidentiary statement in full:
"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'.
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.
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.
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'.
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.
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'."
On my reading of that evidence, there is no suggestion that anyone concluded that the surface complied with the requirement of the Association's rule 5, let alone that it was safe. The highest it was put was that Mr Shorten didn't think it was "too bad"; Mr Young thought it was "okay" and that competitors needed to "ride to the condition of the ground"; that when the second concern was raised the mantra that "riders should ride to the conditions" was repeated and that Mr Young at that point considered that the surface was "still alright". It is clear in my view that the decision to continue the competition was based primarily on the interests of fairness to the competitors who had already ridden (who included Mr Young). Mr Shorten wanted to finish the competition because he thought it would be unfair to competitors who had ridden on the existing surface if later competitors had the opportunity to ride on an improved surface.
Thirdly, although he decided to continue the competition, Mr Shorten also decided to offer competitors the opportunity to scratch their entry and receive a refund or else "compete at their own risk". That, in my view, is the clearest recognition that there was some force in the concerns that had been expressed as to the state of the ground as the day wore on. Hundreds of horses had competed before Ms Tapp (the Association says over 700). It would be remarkable if there were not some deterioration of the surface over the period of the competition.
Finally, Mr Shorten conceded in cross-examination that the fact that the arena had to be ploughed for three hours the following day indicated how bad the condition of the surface was at the time Ms Tapp competed. I see no reason to dismiss the force of that concession as "hindsight". If hindsight was involved, it was in the recognition that Mr Stanton was right to prefer safety to the interests of other competitors in retaining their best chance of winning the competition. In my assessment, Mr Shorten as good as conceded that the competition should have been stopped before Ms Tapp competed because the surface was unsafe. In my respectful opinion, the primary judge should have found that breach of duty in failing to suspend the competition was established, at the very latest at the time the announcement was made offering riders the opportunity to withdraw, but probably earlier.
Ms Tapp's submissions in reply on this issue are compelling. In response to the observation in the Association's submissions that Mr Shorten was the witness the trial judge described as having become "flustered by the process of cross-examination", it was submitted on behalf of Ms Tapp:
"The significance of the evidence of Mr Shorten cannot be dismissed by simply noting that he was 'flustered' under cross-examination. However flustered he may have been, he made full and frank admissions as to the deterioration of the arena surface, that it was in fact unsafe, and that the desire to complete the event took precedence over competitor safety. It is difficult to see how any conclusion other than breach of duty could be open in those circumstances."
As to causation, Payne JA has accepted a submission made by the Association that Ms Tapp did not prove that a cause of Xena Lena's fall was the deterioration in the condition of the surface of the arena which made the arena "slippery". It is not clear whether anything turns here on the word "slippery", which tends to suggest wetness. The consideration of that question was confused by a suggestion early in the case that the surface was slippery because of a recent rainfall. However, as the case was developed, that suggestion went away.
Ms Tapp's evidence was that the mare's front legs slipped from under her because she (the mare) could not get traction on the heavy ground. Her sister and father described the fall in similar terms, referring to the horse's legs "slipping". There does not appear to have been any contest about that at the trial. In her first evidentiary statement, Ms Tapp said:
"After waiting beside the camp for about 5 minutes, the event was re-commenced. There was a competitor in the cut out yard and the judge announced that he could start his run. He had his run. There may have been another competitor after him but I am not certain then it was my run. As the competitor before me proceeded into the arena, I went into the cut out yard with my horse awaiting my run. 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 I realised that I could not move my legs."
She described the fall in slightly different terms in her second statement:
"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.
I was about half way around the first peg on an arch [scil: arc] when I felt my horse's front legs slide from beneath me and slide towards the right. My horse went down onto her front and both my horse and myself landed on the ground."
Ms Tapp was cross-examined at length by an experienced and skilful cross-examiner as to the many risks of campdrafting and her awareness of those risks but she was not challenged as to her description of the actual mechanism of the fall that resulted in her injuries. The uncontested evidence was that she was an experienced rider (the cross-examiner emphasised that for the purposes of his case). She attributed the fall of a horse with whom she was very familiar to the state of the surface which, as she came into the figure 8 area, she said became "heavy" such that the horse struggled to find her stride. I would not hesitate to draw the inference from the evidence in the trial that Xena Lena fell because the surface of the arena, if it was ever appropriate for a two-day campdrafting competition, had deteriorated by the time Ms Tapp rode to the point where a horse proceeding at a canter (not a gallop) struggled to find her stride so that her legs slipped from under her.
For those reasons, I would allow ground 1.
For those reasons and the reasons stated above concerning the proper identification of the risk, I would allow grounds 2 and 3.