High Court overturns lower court rulings
by Resolve Editor Kate Tilley
A High Court 3:2 majority has overturned lower court rulings to grant a $6.75 million damages award to a champion horse rider severely injured in a campdrafting competition.
Emily Jade Rose Tapp had sued the Australian Bushmen’s Campdraft & Rodeo Association Ltd (ABCRA) initially in the NSW Supreme Court, then in the Appeal Court, losing both cases.
High Court leave to appeal was granted in April 2021 on two of the appeal grounds, Ms Tapp’s negligence claim against ABCRA and the obvious risk defence under the NSW Civil Liability Act 2002.
The High Court heard the case on 10 November last year. In judgements delivered on 6 April, Justices Michelle Gordon, James Edelman and Jacqueline Gleeson allowed the appeal. Chief Justice Susan Kiefel and Justice Patrick Keane supported the lower courts’ decisions and would have dismissed the appeal.
The NSW Appeal Court, in a 2:1 majority, had upheld the lower court ruling on 23 October 2020, finding Ms Tapp was or should have been aware of the “obvious” potential for serious injury when participating in campdrafting, which was a “dangerous recreational activity”.
Campdrafting involves a rider on horseback working cattle. The rider rides into a cut out yard, which is separated by a gate from an arena. The rider separates one beast from a herd of six or eight and, after demonstrating control of the beast, calls for the arena gate to be opened. The rider then works the beast around two pegs in the arena in a figure of eight. Then the rider guides the beast through two further pegs to complete the course. Points are awarded for equestrianism and control of the beast within set time limits.
In the majority NSW Appeal Court decision, Justices Anthony Payne and John Basten said Ms Tapp’s agreement to sign a liability waver before competing in the ABCRA event on 8 January 2011 supported the contention campdrafting was a “dangerous recreational activity”.
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 sustained a spinal injury, had T11 quadriplegia and had to use a wheelchair. She now competes in triathlons at Paralympian level.
In their joint majority judgement, High Court Justices Gordon, Edelman and Gleeson said ABCRA had submitted, despite there being at least four falls on the campdrafting ground before Ms Tapp competed, there was insufficient basis to find the ground had deteriorated to the extent it was unsafe. ABCRA also argued Ms Tapp’s fall may have occurred anyway, had she competed when the competition resumed the next day.
However, the majority decision said evidence showed there had been:
- four falls in less than an hour, despite falls at campdrafting events being rare
- two warnings about the state of the ground from an experienced contestant
- concessions from ABCRA Hunter Zone director Darren Stanton that, immediately before Ms Tapp entered the arena, he and others had identified the ground “as being dangerous” and
- it took a disc plough three hours to remediate the ground the next morning.
The three judges said there was unchallenged evidence from Ms Tapp, her sister, and her father that the fall occurred because Ms Tapp’s horse slipped on the arena surface, so the ground condition was the cause of the fall.
“As to whether Ms Tapp’s fall would have occurred in any event if the competition had been stopped before she competed, and resumed so she had competed the next day, [ABCRA] relied on the [trial judge’s] conclusion there was no evidence that ploughing the arena would have led to a different outcome. But that conclusion had been reached [because of] the trial judge’s incorrect premise that the ground had not substantially deteriorated and no breach of duty had been established,” the three judges said.
CJ Kiefel and Justice Keane, however, said “hindsight is apt to distort one’s perception of what precautions are reasonable”.
“While, in hindsight, it seems obvious the prudent course may have been to suspend competition for the Saturday evening, [ABCRA’s] decisionmakers did not have the benefit of hindsight, and were making their decision in a context in which their expectation was that competitors wished to continue and their concern was to ensure fairness to all competitors,” they said.
CJ Kiefel and Justice Keane said it was likely the ground would have been ploughed before competition resumed on the Sunday, even if Ms Tapp had not competed on Saturday night or not fallen.
“It may be accepted that there were reasons to consider whether continuing the competition might expose riders to an unacceptably increased risk of a fall by reason of some deterioration in the state of the [arena] surface; but there were also reasons to think any increase in risk from deterioration in the surface was no more than could be dealt with by competitors ‘riding to the conditions’,” they said.
They agreed with the majority of the Appeal Court and the primary judge that ABCRA’s decision to allow the event to proceed was “not an unreasonable failure to take care for the safety of those who wished to take part in the event”.
They cited evidence that:
- Ms Tapp, her father and her sister had each competed earlier on 8 January 2011 and none raised any concern about the surface
- Ms Tapp’s father offered her his spot in the open draft, which he would not have done had he had concerns about the safety of the surface
- Mr Shorten’s wife and sons competed earlier that day and the primary judge accepted his evidence he would not have let them do so, had he perceived any danger
- the decision the surface was sufficiently safe for the competition to continue was made by a group of people who were experienced in organising and conducting campdrafting events, most of whom had either competed themselves that day or judged the competition, so had observed other riders, and
- only one competitor raised any concern about the surface’s safety, although there had been more than 700 rides before Ms Tapp’s fall.
The case was initially reported in Resolve in December 2020 and again in June 2021 when the High Court leave application was granted.
Ms Tapp’s solicitor John Potter told the ABC the case was “a significant development in injury law, as competitors in the past had no right to damages despite how an injury occurred”.
Carter Newell lawyers, commenting on the case said: “The High Court appears to be trying to pull back from a series of previous decisions, mostly emanating from the courts in NSW, where defendants have been largely successful in relying on the obvious risk defence in the context of dangerous recreational activities.” Read the Carter Newell case notes here.
- Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd  HCA 11 (6 April 2022)