A study in risk: Understanding obvious risks of dangerous recreational activities

There is nothing more deceptive, said Sir Arthur Conan Doyle, than an obvious fact². One wonders, however, whether the services of Sherlock Holmes ought be necessary to identify the obvious - and yet when it comes to identifying the obvious risks of dangerous recreational activities this has continued to be, well, far from elementary.

On 6 April 2022, the High Court delivered judgment in the matter of Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited³ which dealt with this very issue, allowing the appeal and finding for the injured participant in a campdrafting competition. We discuss, below, that decision and what it means in the context of applying the statutory defence of dangerous recreational activity.

Snapshot

The High Court confirmed that, with respect to the dangerous recreational activity of campdrafting:

• The substantially elevated risk of physical injury falling from a horse that slipped, due to the deterioration of the arena surface, was not an obvious risk of a dangerous recreational activity to a competitor who was unaware of the deterioration of the surface (beyond what would normally be expected) and without knowledge of a history of bad falls on the surface. In those circumstances, the statutory defence of dangerous recreational activity was not available to the defendant;
• The proper characterisation of the risk must include a careful analysis of the essential facts that constitute the breach of duty, so that the proper level of generality and specificity is reached;
• The facts (and the evidence presented) in each case will be critical, and determinative.

Background

The statutory defence

Section 5L of the New South Wales Civil Liability Act 2002 (‘the CLA’) provides:

“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.”

Similar provisions are found in Queensland, Western Australian and Tasmanian legislation.

History of the defence

In 2020 and 2021 the NSW Court of Appeal was called on to consider the application of the dangerous recreational activity defence a number of times, and interestingly with repeated circumstances involving injuries occurring during the conduct of equestrian activities⁴.

In Menz⁵ Leeming JA, with whom White JA and Payne JA agreed, made the following observations about the nature of an obvious risk at [70]-[74] (which were repeated by Payne JA in Singh⁶):

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.

What is readily apparent on reading that guideline for the characterisation of the risk is that its application is prone to error. The High Court agreed that the identification of the appropriate level of generality will not always be straightforward⁷. Apply too little particularity, not enough generality or too much or too little hindsight, and completely different outcomes may be reached.

The decision

The facts in Tapp

The plaintiff, Emily Tapp, although only 19 years old at the time, was an experienced horse rider and campdraft contestant. She was competing in a campdraft event organised by the defendant, the Australian Bushmen's Campdraft and Rodeo Association Ltd (‘the Association’), when she fell from her horse and tragically sustained a serious spinal injury⁸.

Campdrafting is an activity where participants, while on a horse, muster cattle at high speed around an arena to demonstrate their control over both the horse and the cattle.

Several riders had fallen in the hour prior to the plaintiff’s accident – albeit without injury being sustained. However, they had been described in the Association’s Open Draft Draw as ‘bad falls’. The Association was approached twice by an experienced campdrafter who said that the competition should be stopped because the ground was becoming slippery. After discussing the ground condition and speaking with 2 contestants who had fallen, the Association determined to continue the competition. Shortly after competition recommenced, the plaintiff was injured. It was only after the plaintiff’s fall that the Association “ploughed” the competition arena.

The plaintiff made a claim in negligence⁹ and she alleged her fall was caused by a deterioration in the arena’s surface which the Association knew to be slippery and unsafe. The Association denied liability on the basis that it had not breached its duty of care to the plaintiff, that any breach was not causative of the injury and that the injuries were a materialisation of any obvious risk of a dangerous recreational activity.

Whilst there was no dispute that campdrafting was a dangerous recreational activity, it was the characterisation of the risk and whether the risk was obvious to the plaintiff that were at the heart of the claim.

The High Court decision

It is important to note that the decision of the High Court was a split decision, with Kiefel CJ and Keane J in dissent and finding against the plaintiff on breach of duty and causation citing evidentiary difficulties.¹⁰

The majority¹¹ stated, in the context of the dangerous recreational activity defence, that there are 4 significant matters that ‘must guide the reasoning process concerning the correct level of generality’:

1. First, and contrary to some views that have been expressed in the New South Wales Court of Appeal,¹² the "risk" with which s 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence;
2. Secondly, the s 5L risk should be characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached its duty of care. Although the risk should be characterised in the same way for the purpose of s 5B in Div 2 (Duty of care) and s 5L in Div 5 (obvious risks), the assessment of the obviousness of the risk in s 5L proceeds from the perspective, not of a reasonable person in the defendant's position, but of a reasonable person in the position of the plaintiff;
3. Thirdly, the generality at which the risk in s 5L is stated should include the same facts as established the risk for the purposes of the breach of duty which caused the harm to the plaintiff, but no more; in other words, as expressed by Payne JA, the characterisation of the risk must include the "general causal mechanism of the injury sustained" which "gave rise to the potential for the harm for which the plaintiff seeks damages"; and
4. Fourthly, and consequently, the characterisation of the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty.

The High Court referred to an example of the correct application of these 4 factors, being the decision of C G Maloney Pty Ltd v Hutton-Potts¹³ where the plaintiff overlooked a warning sign, slipped on floor polish which had been spilt by a cleaner and fell on a hotel floor striking her knee. The risk, the Court said, was not ‘a risk that a recently polished floor will be slippery’ because no liability would arise from a statement of the risk at that level of generality. Instead, one must consider the risk for which the defendant would be liable in negligence for harm suffered. The risk, stated with the correct level of generality, and consistently with the essential circumstances in respect of which a person in the position of the defendant should reasonably have taken precautions, was the risk of falling from slipping on ‘polishing material on the floor which was not visible, and had not been removed in the buffing process’.

The High Court also referred to the decision of Menz as an example of the correct formulation of the risk. There, the appellant had been injured falling from her horse warming up for an event when the horse was ‘spooked’ by very loud noises made by children banging on metal fencing. In that case, the New South Wales Court of Appeal determined that the presence of additional stewards and marshals, even to prevent harm by risks they could control (compared with noises from sources such as cars backfiring etc), was not a precaution that a reasonable person should have taken. That informed the description of the risk in respect of the dangerous recreational activity defence. The proper characterisation of the risk was ‘falling from a horse after it was spooked’. There was no need to descend into further particularity about the source of the noise.

When considering in Tapp how the risk was to be described, various approaches were taken throughout the history of the litigation:

1. At first instance, the trial judge described the risk as ‘the risk of falling and being injured’ or the risk ‘that the horse would fall and as a consequence of that, [Ms Tapp] would fall and be injured’;
2. The trial judge also referred to the risk as ‘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’;
3. The majority in the Court of Appeal did not consider that there was evidence as to the nature of the risk posed by the surface and therefore it was not possible to identify the risk;
4. In dissent, in the Court of Appeal, McCallum JA described the risk 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’;
5. The majority in the High Court said that the risk should be characterised as ‘the substantially elevated risk of physical injury by falling from a horse that slipped by reason of the deterioration of the surface of the arena’.

In Tapp, the High Court said that once the risk was properly defined, all the factors to be considered pointed to the conclusion that a reasonable person in the position of the Association would have taken the precaution of stopping the event:

1. The risk was substantially elevated, and the probability that harm might occur if the competition was not stopped was foreseeable to a reasonable person in the position of the Association;
2. The likely seriousness of the harm was at the level of physical injury that could be catastrophic;
3. The burden of taking the precautions was the simple act of stopping the event to inspect the arena and consider the safety of the ground;
4. These matters could not be outweighed by the social utility of continuing the event to prevent contestants being at a competitive disadvantage (one of the reasons which the Association decided to proceed after they delayed the event).

Was then, the risk that was defined by the High Court, an obvious risk of a dangerous recreational activity? The proper consideration is whether it was obvious to a reasonable person in the position of the plaintiff. The High Court dealt with the issue swiftly, finding that the plaintiff:

• Did not have the knowledge or opportunity to obtain the knowledge of the condition of the ground before riding (and particularly, not in the hour before she competed during which time other falls had occurred);
• A reasonable person in the position of the plaintiff would not have had any concerns about the condition of the ground from observations of other contestants or information about other contestants. On the day of the incident, she had competed, as had her sister and father, all without incident. The plaintiff did not know of the prior falls;
• Decisions concerning the quality of the surface and how the surface was maintained were made by the Association. A reasonable person in the position of the plaintiff would have relied on the Association for that assessment¹⁴.

Talking Points

It seems sufficiently apparent now that the risk described by the trial judge in (a) above is far too general, as it does not contain any reference to the basis of the liability of the Association. The same criticism may be levelled at the risk described alternatively by the trial judge in (b) as, whilst it speaks of the risks inherent in the activity, it does not specify the basis of the liability. If the plaintiff had fallen early in the competition when the ground was in a usual condition, then it may be that that description of the risk may well be sufficient, as there would then be nothing more than the ordinary risks associated with the activity that gave rise to the fall. However, that was not this factual case.

The difference, one might say, between the description of the risk by MacCallum J in dissent described in (d) and the High Court’s formulation in (e) is that a competitor would have some expectation of deterioration in the surface of the arena in the usual course because of the nature of the competition creating inconsistencies in the surface, but that again was not the factual case here, it was the substantially elevated risk of the surface because of the degree of deterioration that had occurred (beyond the normal deterioration that might be expected). That places it above the ordinary risk.

Consider a change to the facts in Menz, where the horse was spooked, not because of children banging a metal fence, but because the warm up arena was placed next to, say, a clay shooting event by the organisers of the event, which elevated the risk of a horse being spooked because of the loud, proximate, repeated noises from the shooting event. Approaching that factual scenario using the guidance provided in Tapp, it is likely that the risk would be described differently than in the Menz appeal. The liability of the organiser would be because of its decision to place the clay shooting event in close proximity to the warm up ring, knowing that it would be creating loud noises and that there was an increased risk that a horse could be startled. That would, in our view, be relevant to the risk and the risk might be ‘the elevated risk of falling from a horse by reason of the horse being startled by a shooting event’.

Nothing clears up a case so much as stating it to another person.¹⁵ It is, of course, always much easier to define a risk correctly with the hindsight afforded by a High Court judgment. Each matter, however, involves a consideration of its specific facts and how the liability that might arise in order to formulate correctly the risk.

Say then, for example, we assume the alternative scenario in Menz that we detailed above¹⁶, with the relevant risk being described as ‘the elevated risk of falling from a horse by reason of the horse being startled by a shooting event.’ In that scenario, it seems much more plausible that the risk of injury was foreseeable by the defendant but not necessarily by the plaintiff particularly if she had no knowledge that the clay shooting events were scheduled. If those facts had been true, and if the Court accepted the characterisation of the risk in that manner, then this might easily lend itself to a verdict in favour of the plaintiff.

Similarly, the decision of the Qld Court of Appeal in State of Queensland v Kelly¹⁷ also helpfully demonstrates just how important it is to characterise the risk properly, and that even slight nuances in the facts can sway the outcome. In that decision the plaintiff, an Irish tourist on Fraser Island as part of a tour group, suffered serious spinal injuries when he ran down a sand dune and fell into a lake. He had earlier passed two signs warning of the risk of ‘running, diving or jumping into the lake’. The Court of Appeal was tasked with considering whether the risk that materialised was an ‘obvious’ one¹⁸. Ultimately, it held it was not. The risk of harm which eventuated was grave, and a consequence of a person running down the sand dunes and falling into the lake. That risk was not obvious.¹⁹

The High Court did in Tapp²⁰, interestingly, foreshadow that difficulties may arise if there is some contrast between the specific characteristics of a plaintiff (or defendant) and those which might be attributed to a reasonable person in his or her position. In that context, reference was made to the earlier High Court decision of Imbree v McNeilly²¹ which did not consider the issues at play here but did require an assessment of the conduct of an inexperienced, 16 year old learner driver. The Court concluded, in finding for the defendant’s injured passenger (plaintiff), that an inexperienced driver’s conduct is to be judged by reference to whether a reasonable, experienced driver would have made the same error in the circumstances. There was no need to contemplate such a scenario in Tapp (as such issues were not raised) but the outcome may have been different, for example, if the plaintiff had been a grossly inexperienced rider but still elected to enter a ring in the face of risks that would have been obvious to a reasonable, experienced rider.

Take Away

What is evident, particularly so given the ultimate outcome in Tapp, is that the dangerous recreational activity defence is by no means an absolute surety for defendants (and their insurers). Overlooking the finer details can compromise or even erode a defence altogether. When particularising the risk, it should be broad enough to persuade a Court that the plaintiff ought to have foreseen its obviousness, but at the same time stated with enough specificity to be clearly identified as the risk which materialised and led to the harm that befell the plaintiff.

Getting the balance right, it would seem, is critical. For example, in the abovementioned Singh decision the NSW Court of Appeal noted that whilst horse riding is inherently a dangerous recreational activity, a defendant cannot simply expect the risk to be categorised so broadly that it encapsulates all potential risks within the activity. The Court of Appeal gave an example whereby it suggested that if an occupier of a racetrack was found to have allowed rabbits to burrow under the course, and a horse stumbled when its hoof struck a burrow, then it is unlikely that this would be an obvious risk.

The Court will then be tasked with identifying the risk of harm with enough generality to be fair to the defendant but specific enough to be equally fair to an aggrieved plaintiff²².

Whether the balance, between the competing interests of the plaintiff and the Association, was achieved in Tapp (leading to a just and fair outcome) will be largely a matter of subjective perception, but at least (insofar as the parties are concerned) the matter is settled, with all avenues of appeal and redress now exhausted.

As the eternally quotable Sir Arthur Conan Doyle, in the Complete Sherlock Holmes, wrote, it is easy to be wise after the event. For defendants and their insurers generally – the High Court has reaffirmed that whether a defendant can avail itself of the defence of ‘obvious risk’ will depend very much on if the factual circumstances are appropriate, and whether the risk (once properly defined) would have been obvious to a reasonable person in the position of the plaintiff.

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¹ The first of the Sherlock Holmes books by Sir Arthur Conan Doyle was ‘A Study in Scarlet’ written in 1887.
² The Boscombe Valley Mystery - a Sherlock Holmes Short Story
³ [2022] HCA 11
⁴ Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65; Singh v Lynch [2020] NSWCA 152; Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263
⁵ Ibid at 3.
⁶ Ibid at 3.
⁷ Tapp at [110].
⁸ Damages were agreed, at trial, at $6.75M
⁹ A claim was also pursued under the Australian Consumer Law at first instance.
¹⁰ The plaintiff’s case at trial was that the Association’s breach was its failure to stop the competition whereas on appeal and before the High Court, her case was one of a failure to suspend it to allow the surface to be ploughed.
¹¹ Gordon J, Edelman J and Gleeson J at [110]
¹² See Goode v Angland (2017) 96 NSWLR 503 at 506 [5], 539 [177], 541 [185]; Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103 at 113 [38]-[39].
¹³ [2006] NSWCA 136 at [173] – [174].
¹⁴ The High Court also cited the plaintiff’s age (19), noting that whilst she was experienced in campdrafting, her age reinforced that a reasonable person, in her position, would have been unlikely to pause and contemplate the appearance of the arena surface and would have assumed the Association would have made any appropriate decisions.
¹⁵ Sir Arthur Conan Doyle
¹⁶ Being that the horse was spooked, not by children, but by the noise from a clay shooting event positioned next to the warm up ring.
¹⁷ [2014] QCA 27
¹⁸ In the context of s. 13 of the CLA (Qld)
¹⁹ And can be contrasted with the risk of a person running and diving into the lake
²⁰ At [150]
²¹ (2008) 236 CLR 510
²² When arguably the purpose of s. 5L is that participants in dangerous recreational activities bear some personal responsibility for broad, general risks of which they ought to have been aware.