The NSW Court of Appeal has unanimously dismissed an appeal from the decision of the Supreme Court of NSW in which an agricultural show society successfully relied upon a number of statutory defences under the Civil Liability Act 2002 (NSW) (CLA).
The issues arising on appeal for determination by the Court were divided into three categories: (1) a challenge to the characterisation of the risk as an ‘obvious risk’ and the finding that the appellant was engaged in a ‘dangerous recreational activity’ for the purposes of the defence under s 5L of the CLA; (2) rejection of the appellant’s expert liability evidence; and (3) a challenge to the finding of no breach of duty under s 5B(1)(c).
In 2012, the appellant (an experienced horse rider and trainer) attended an annual agricultural show at the Wagga Wagga Showground conducted by the respondent, to ride her horse in certain events. The appellant was riding her horse in a designated warm-up area of the showground when a number of children, who were playing with and/or climbing a fence near the warm-up area, caused a very loud noise. As a result, the plaintiff’s horse startled and fell, causing the appellant to fall and sustain serious injuries.
The appellant alleged that the incident was caused by the respondent’s negligence in failing to have marshals and stewards available to control the presence and behaviour of children in and around the warm-up area.
The decision at first instance
There was no dispute that the appellant was engaged in a recreational activity at the time of the injury, but whether that activity was a dangerous one involving a significant risk of physical harm was in dispute. The trial judge accepted that there was an inherent, unpredictable and ever-present risk that a horse will be spooked or startled, giving rise to the risk of serious injury (including catastrophic injury). The Court was therefore satisfied that the recreational activity in which the appellant was engaged at the time of being injured was dangerous within the meaning of s 5L of the CLA, and the harm suffered was the materialisation of that obvious risk, such that the respondent was not liable in negligence.
At trial, the appellant sought to adduce expert liability evidence from an experienced horse trainer, riding instructor and competitor. The trial judge excluded much of the report on the basis that the expert was not properly qualified to opine on legal matters or on matters outside her specialised knowledge, such that the evidence did not comply with s 79 of the Evidence Act 1995 (NSW).
The trial judge also applied s 5B to further hold that the respondent had not breached its duty of care to the appellant. It was accepted that the respondent owed a common law duty of care to people entering and competing in events. The appellant contended that the respondent failed to have marshals and stewards available to control the presence and behaviour of children in and around the warm-up area. However, the trial judge stated that the precautions contended could not be confined in this way, because horses could conceivably react to a wide range of stimuli, and was therefore not satisfied that s 5B(1)(c) was made out
Given the respondent successfully established various statutory defences under the CLA, verdict and judgment was entered in its favour at first instance.
The Decision on appeal
The NSW Court of Appeal unanimously dismissed the appeal.
With respect to the first issue, there was no factual dispute as to the cause of the appellant’s injuries. However, the issue presented by s 5L was “one of characterisation” – whether these accepted facts were sufficient to engage the elements of s 5L. The Court of Appeal stated that three ‘inescapable’ facts made it clearly appropriate to characterise the harm suffered by the appellant as the materialisation of an obvious risk. First, there was “no such thing as a bomb proof horse”. Second, horses may at any time be spooked by any type of stimulus. Third, a rider runs a risk of serious injury in the event that a horse is spooked and behaves unpredictably. It was not necessary to provide the additional particularity that the noise made by children spooked the horse.
The appellant sought to distinguish the warm-up from the competition, thereby falling outside of a “dangerous” recreational activity. The Court of Appeal did not accept this submission and held that, in any event, even if the warm-up was treated as a different activity from the competition, the warm-up was still “dangerous” for the purposes of the defence in s 5L, because of the ever-present risk of a fall from the horse’s unexpected reaction to some stimulus. The challenge to the s 5L defence was not made out
Regarding the second issue, the Court of Appeal agreed with the trial judge, and stated that the expert liability report did not explain how the author’s opinions derived from her specialised knowledge, nor did it explain the reasoning process underlying the expert’s conclusion that marshals should have been present and children prevented from being present, thus failing to comply with s79 of the Evidence Act. The trial judge was therefore correct to exclude the report and this ground was not made out.
Finally, in respect of the third issue, the appellant submitted that the respondent should have exercised proper control of the perimeter adjacent to the warm up ring, including stationing sufficient stewards or marshals on the day to prevent children making noises which may spook horses. However, the Court of Appeal stated that the difficulty was one of evidence – the case was run without evidence of the matters to which s 5B(2) requires regard to be had, and the appellant did not establish that the respondent had breached its duty of care for the purposes of s 5B(1)(c).
The “precautions” of which s 5B(1)(c) speaks are things which will avoid or reduce the risk of harm, like requiring the wearing of a helmet. The risk warning provided by the respondent in this case was not so much directed to informing competitors of danger, but extracting from them an acknowledgement of voluntariness and an indemnity. The Court of Appeal therefore agreed with the conclusion that s 5B(1)(c) was not satisfied and stated that the claim in negligence was correctly dismissed.
Implications for you
The decision stressed the importance of specifying and correctly identifying the risk of harm in every case in which a failure to take reasonable care is alleged. The decision also reinforced the considerations necessary for establishing that a particular risk is an obvious risk, and that a recreational activity is a dangerous recreational activity.