Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2022] HCA 11
Participating in a dangerous sport does not necessarily prevent an injured person from recovering compensation.
In Tapp, the High Court considered whether a serious spinal injury was caused by an obvious risk of campdrafting or by an organiser’s failure to respond to a dangerously deteriorating arena surface.
The decision shows why the particular risk that caused an injury must be identified carefully. It is not enough to say that the activity was generally dangerous.
What happened at the campdraft?
Ms Tapp was an experienced horse rider who had competed in campdrafting from a young age.
In January 2011, she participated in a campdrafting event at Ellerston in New South Wales. Campdrafting involves a rider working cattle on horseback at speed and is recognised as a dangerous recreational activity.
More than 700 rides took place on the arena during the first two days of the event. In the hour before Ms Tapp competed, four riders experienced “bad falls”.
An experienced competitor twice warned the organisers about the arena surface. He first said that the ground was becoming slippery and that the event should be stopped. After another fall, he warned that the ground was unsafe.
The organisers allowed the competition to continue.
Ms Tapp was unaware of the earlier falls and warnings. During her ride, her horse slipped and fell. Ms Tapp suffered a serious spinal injury and was unable to move her legs.
Why was her claim initially dismissed?
The original trial judge dismissed Ms Tapp’s claim, and that decision was upheld by a majority of the New South Wales Court of Appeal.
The lower courts treated her injury as resulting from the obvious risk of falling from a horse while participating in campdrafting. They also found that she had not established that the organisers breached their duty of care.
Ms Tapp appealed to the High Court.
How did the High Court identify the risk?
By a 3–2 majority, the High Court found that the risk had been described too broadly. The same risk must be identified consistently when considering whether reasonable precautions were required and whether the obvious-risk defence applies.
The relevant risk was not simply the ordinary risk of falling from a horse while campdrafting. It was the substantially increased risk of injury from a horse slipping because the arena surface had deteriorated.
That distinction was critical.
Falling from a horse may be an obvious risk of campdrafting. However, the dangerous condition of the arena was not obvious to Ms Tapp. She did not know about the earlier falls or warnings and was not permitted to inspect or ride on the arena immediately before competing. The deteriorated surface was not obvious to Ms Tapp. She had no opportunity to inspect the arena during the Open Campdraft, her earlier ride and her family members’ rides had occurred without incident, and she was entitled to rely on the organisers to assess and maintain the arena.
Her injury therefore did not result from the materialisation of an obvious risk that prevented liability.
Kiefel CJ and Keane J dissented, finding that Ms Tapp had not proved why her horse fell and had therefore not established causation.
Should the organisers have stopped the event?
The majority found that a reasonable organiser would have stopped the competition to inspect the arena and consider whether it remained safe.
The Court relied on several important circumstances:
- Four bad falls occurred in less than an hour;
- Falls were unusual in campdrafting events;
- An experienced competitor twice warned that the surface was slippery or unsafe;
- The potential consequences of another fall were serious or catastrophic; and
- Temporarily stopping the event for an inspection was a simple precaution.
The organisers’ concern that stopping the event might create a competitive disadvantage for riders who had already competed did not outweigh the risk of serious injury.
The majority also found that the failure to stop and inspect the arena caused Ms Tapp’s accident.
What was the outcome?
The High Court allowed Ms Tapp’s appeal and entered judgment in her favour for the agreed amount of $6.75 million.
Although the case arose under New South Wales legislation, it is relevant to Queensland public liability claims. Section 19 of the Civil Liability Act 2003 (Qld) also addresses injuries caused by obvious risks of dangerous recreational activities.
The decision demonstrates that:
- A dangerous activity does not give an organiser immunity from every injury suffered during it;
- The risk must be identified with enough precision to reflect what actually caused the injury;
- A risk may not be obvious where it arises from a hazard unknown to the injured participant;
- Organisers must respond to changing conditions and warning signs; and
- Simple precautions may be required where the possible harm is serious.
Whether an injury resulted from an obvious risk will always depend on the particular activity, the circumstances in which it was undertaken, and the actual source of the danger.
This case note is a general summary of the decision and does not constitute legal advice.