Paralympian loses second compensation bid
by John Reynolds, KT Journalism
A champion Australian Paralympian has lost her second bid for compensation for a severe and permanent spinal injury she sustained when she fell from a horse in a campdraft competition.
On 23 October, the NSW Appeal Court upheld a lower court ruling Emily Jade Rose Tapp, now 29, was or should have been aware of the “obvious” potential for serious injury in what was a “dangerous recreational activity”.
In a majority decision, Justices Anthony Payne and John Basten said Ms Tapp’s agreement to sign a liability waver before competing in the Australian Bushmen's Campdraft and Rodeo Association Ltd (ABCRA) event on 8 January 2011backed that conclusion.
Justice Lucy McCallum disagreed, saying Ms Tapp was only 19 when she was injured and teenagers were “less attuned to risks” that would be obvious to others.
The Appeal Court heard Ms Tapp was competing in the ABCRA campdraft competition at Ellerton, NSW, with her father Ben and sister Courtney when her horse slipped and fell on the second day of the three-day event.
Campdrafting involves horse riders working cattle at speed in an arena setting and completing difficult tasks, such as herding and guiding cattle around obstacles.
The court heard Ms Tapp sustained a spinal injury that left her in a wheelchair with T11 quadriplegia. Despite her “enormous emotional and physical obstacles” she now competed in triathlons at an elite Paralympian level.
Ms Tapp sued ABCRA, arguing negligence and a breach of duty of care by allowing the competition to continue on deteriorating ground and after previous falls earlier in the day.
She also alleged there was a contractual agreement between her and ABCRA that had “both specific and implied” terms, and, because ABCRA breached its agreement with her in several ways, she was entitled to damages under the 2002 NSW Civil Liability Act (CLA).
But on 4 November 2019, NSW Supreme Court Justice Julia Lonergan dismissed Ms Tapp’s claim, preferring instead ABCRA arguments that Ms Tapp’s competition application was not a contract; that she signed an indemnity waver; and ABCRA was involved in “community work done by volunteers”, which protected it from prosecution under the CLA.
ABCRA also succeeded in its argument that, because campdrafting was a recognised dangerous recreational activity, there was no obligation for officials to warn competitors of obvious risks.
During the trial, Justice Lonergan heard Ms Tapp had been campdrafting since she was six years old. She had entered her first competition when she was eight and was a “very able horse rider and competitor”, winning several trophies and ribbons before the 2011 incident.
In written evidence, Ms Tapp said she felt there was good traction when she entered the arena but, as she manoeuvred in a figure-eight pattern, her horse struggled to get a proper stride. The horse then fell forward, throwing Ms Tapp to the ground.
“[The horse] got up after about 15 seconds and I tried to get up and could not,” Ms Tapp said. “I was in excruciating pain in my chest but realised I could not move my legs.”
Justice Lonergan said Ms Tapp’s counsel presented two reports as evidence of the ground’s deterioration, and argued competition should have been stopped or competitors at least warned. The reports included arguments organisers should have been alerted to potential issues after several falls before Ms Tapp was injured.
But Justice Lonergan said she gave both reports limited weight because their assumptions were not established on evidence. She said the description of the ground in one report “tells me nothing relevant”.
The second report, provided by an “experienced person in horse-related pursuits and study”, also included incorrect assumptions and baseless statements.
ABCRA told Justice Lonergan it was not liable because Ms Tapp’s injuries were due to the “materialisation of an obvious risk during a dangerous recreational activity”.
As an adult with experience in campdrafting and no physical or cognitive disabilities, Ms Tapp would have been aware a fall from a horse at speed could involve serious injury or death. She had also signed the waiver, which said campdrafting was dangerous and competitors could be injured or die.
Justice Longergan agreed with ABCRA and found, for the purposes of CLA, the campdrafting competition was a recreational and not a contracted activity, and was widely known to be dangerous.
She found Ms Tapp’s injury was from the materialisation of an obvious risk and competitors were aware of that risk.
“[ABCRA] had no obligation to inform [Ms Tapp] of the risk of falling from her horse during the campdraft event,” Justice Longergan said. “The risk of falling from a horse during the rigours of a campdrafting event was obvious.”
Ms Tapp appealed against the decision, arguing Justice Lonergan had erred in finding:
She argued ABCRA should have been held liable as the event organiser, even if its volunteers were not.
But Appeal Court Justice Payne, with whom Justice Basten agreed, rejected the appeal. While he found Ms Tapp was right on the volunteer grounds, they were secondary arguments.
Her primary arguments of breach of duty of care and obvious risk in a dangerous recreational activity had failed, and the appeal therefore failed.
Justice Payne said Ms Tapp’s appeal arguments relied on assumptions and findings not made by Justice Lonergan, including that the ground was slippery, a claim the trial judge said was inconclusive.
Photographs tendered in evidence did not establish anything relevant about the arena’s surface, whether it was slippery or whether its condition had deteriorated from earlier in the day.
If anything, the photographs tended to support ABCRA’s evidence the surface was moist in parts, but not wet, and dust was blowing in the wind.
“The fact 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 the surface was dangerous or unsuitable for a campdrafting event,” he said.
“The bare fact of the number of falls, in the absence of any evidence 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.”
Justice Payne rejected Ms Tapp’s appeal argument that her horse’s fall “was quite unexpected”. With her experience, she would or should have been aware of and “expected” the obvious risks.
Justice McCallum’s dissenting judgement related only to whether Ms Tapp should have been expected to be aware of the obvious risks and ABCRA’s duty of care.
She said she did not believe the risks were obvious “to a reasonable person” in Ms Tapp’s position. Ms Tapp was only 19 years old at the time and teenagers were poorly equipped to assess risk.
“A reasonable person of Ms Tapp’s age would be unlikely to pause to reflect on the appearance of the surface, “Justice McCallum said.
“They would likely assume an adult had made an appropriate decision about that, if they turned their mind to the issue at all.”
She also rejected arguments ABCRA had properly considered the arena surface’s safety. She said there was no evidence anyone had examined the surface to see if it was safe.
“It is clear the decision to continue the competition [after earlier falls] was based primarily on the interests of fairness to competitors who had already ridden,” she said.
Justice McCallum said Ms Tapp was injured because the surface was unsafe, and Justice Lonergan should have found ABCRA breached its duty of care by failing to suspend the competition.
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd  NSWSC 1506 judgement 4/11/19
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd  NSWCA 263 judgement 23/10/20
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