Given the recent weather events and an inability across our community to play any number of sports due to sporting field conditions, the High Court of Australia has delivered a timely decision which provides guidance to organisers of events.
The High Court had to decide whether the Australian Bushmen’s Campdraft & Rodeo Association breached its duty of care, whether this breach caused an injury and whether the injuries sustained were the result of the materialisation of an obvious risk of a dangerous recreational injury.
Ms Tapp was an experienced horse rider and campdraft contestant. During a campdrafting event organised by the Association, four contestants sustained falls while competing over a 45 minute period.
After the first three falls, one of the contestants asked the organisers to stop the competition as the ground was becoming slippery. The ground condition was subsequently discussed, but organisers decided to continue the competition.
After another fall, the contestant again approached event organisers and repeated his concerns that the ground was unsafe. Once again, the organisers decided to continue.
Shortly afterwards, Ms Tapp competed and fell when her horse slipped on the ground of the arena. Ms Tapp suffered a serious spinal injury.
In 2019 the Supreme Court of New South Wales found that Ms Tapp should have been aware of the “obvious” potential for serious injury in what was a “dangerous recreational activity”.
The Court decided that the Association was not liable for Ms Tapp’s injuries because her injuries were the materialisation of an obvious risk of a dangerous recreational activity. That finding provided the Association with a complete defence to the claim.
Appeal in the NSW Court of Appeal
Ms Tapp appealed the Supreme Court decision. The appeal was unsuccessful.
High Court decision
However, following a final appeal, the High Court overturned the previous decisions, and held that the Association had breached its duty of care and that Ms Tapp’s injuries were not the result of the materialisation of an obvious risk of a dangerous recreational activity.
The High Court found that while campdrafting was a dangerous recreational activity, the harm Ms Tapp suffered was not the materialisation of an obvious risk. Importantly, the event organisers had disrupted the competition several times to assess the arena, had received numerous warnings of its slipperiness and had seen four falls in a short space of time.
The High Court found that the Associations decisions to continue the competition were not reasonable.
The Court also found that a reasonable person in the position of the Association should have stopped the event in response to the elevated risk of contestants being injured from falling from horses that slipped on the deteriorated surface of the arena.
In deciding whether the risk should have been obvious to Ms Tapp, the Court decided that it would not have been, as:
- she did not have the opportunity to inspect the ground in the arena;
- a reasonable person in Ms Tapp’s position would not have had any concerns with the surface from observation and information from other contestants; and
- Ms Tapp did not observe any other falls and was not aware there had been any other falls.
The appeal was allowed and a verdict and judgment was entered for Ms Tapp in the agreed amount of $6,750,000.
What does this mean for organisers?
In this case, Ms Tapp’s injury was not caused by her participation in a dangerous recreational activity, but rather it was caused by the dangerous surface of the arena, which was not an obvious risk to a reasonable person.
Therefore, organisers of events need to be mindful and consider the state of the surface and the facilities competitors are competing in. This is an ongoing obligation whilst an event is taking place – particularly where conditions can change and deteriorate.