It's obvious, isn't it? The High Court declares that some risks of recreational activities are not obvious

In brief - In Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11, the High Court majority overturns the NSW Court of Appeal's judgment and finds in favour of Ms Tapp who sustained a serious spinal injury as a result of the Association's breach of their duty of care, where the materialisation of risk was not "obvious". What does this mean for organisers of risky recreational activities and what is the degree of specificity required when assessing whether a risk is an obvious one? 

The High Court considered whether the Australian Bushmen's Campdraft & Rodeo Association Limited (the Association) breached its duty of care, whether this breach was causative of Ms Tapp's injuries and whether the injuries she sustained were the result of the materialisation of an obvious risk of a dangerous recreational injury.

Horserider suffers serious spinal injury when she falls on slippery ground during campdrafting event

Ms Tapp was an experienced and able horse rider and campdraft contestant. During a multi-day campdrafting event organised by the Association, four contestants sustained falls while competing over a 45 minute period. 

After the first three falls, Mr Stanton, one of the contestants (also an experienced campdrafter), approached one of the Association's event organisers and asked that the competition be stopped as the ground was becoming slippery. The ground condition was subsequently discussed amongst the event organisers who decided to continue the competition.

After the fourth fall, Mr Stanton once again approached an event organiser and repeated his concerns that the ground was unsafe. The organisers paused the competition to discuss the conditions, but decided again to continue the competition. 

Shortly following, Ms Tapp competed and fell when her horse slipped on the ground of the arena. Ms Tapp suffered a serious spinal injury, whereas the prior four contestant falls were described in the Open Draft Draw as "bad falls". 

Primary judge holds that Association not liable for Ms Tapp's injuries

In 2019 the Supreme Court of New South Wales held in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 that Ms Tapp should have been aware of the "obvious" potential for serious injury in what was described as a "dangerous recreational activity". 

The Court held that the Association was not liable for Ms Tapp's injuries on the basis that her injuries were the materialisation of an obvious risk of a dangerous recreational activity within the meaning of section 5L of the Civil Liability Act 2002 (NSW) (CLA). The primary judge held that even if this complete defence was not made out that the Association had not breached its duty of care to Ms Tapp.

The Court stated: 

[The Association] had no obligation to inform [Ms Tapp] of the risk of falling from her horse during the campdraft event,” Justice Lonergan said. “The risk of falling from a horse during the rigours of a campdrafting event was obvious."

Appeal in the NSW Court of Appeal

Ms Tapp appealed the primary Supreme Court decision arguing that Justice Lonergan had erred in finding:

• the Association had not breached its duty of care;
• Ms Tapp's injuries resulted from an obvious risk in a dangerous recreational activity; and
• the Association was not liable under a volunteer defence.  

Justice Payne in the New South Wales Court of Appeal in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263, agreed that the Association could not rely on the volunteer defence, he noted that 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. 

High Court decision 

By majority, the High Court (Gordon, Edelman and Gleeson JJ) allowed the appeal, and held that:

• the Association had breached its duty of care;
• that this breach of duty caused Ms Tapp's injuries; and
• Ms Tapp's injuries were not the result of the materialisation of an obvious risk of a dangerous recreational activity. 

The High Court considered that while campdrafting was a dangerous recreational activity, the harm was not the materialisation of an obvious risk of that injury. Importantly, the event organisers had disrupted the competition several times to assess the arena, had received numerous warnings from Mr Stanton and seen four falls in a short space of time. 

The High Court observed that decisions concerning the surface of the arena with respect to quality and maintenance were not made by a reasonable person in the Association's position. 

The High Court held that the risk was properly categorised as a substantially elevated risk of physical injury by falling from a horse that slipped due to the deterioration of the arena surface, and this risk would not have been obvious to a reasonable person in Ms Tapp's position. This was a much narrower risk than the broad or general risk identified by the trial judge as "the risk of falling and being injured" or a risk "that the horse would fall and as a consequence of that, [Ms Tapp] would fall and be injured". 

The High Court determined there to be four important factors to guide the correct level of generality for the purposes of assessing the risk under section 5L of the CLA:

1. The assessment or formulation of the "risk" for the purposes of section 5L will usually need to be assessed after a determination that there is a prima facie case of negligence.
2. The risk should be characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached its duty of care. 
3. The generality at which the risk in section 5L is stated should include the same facts as established the risk for the purposes of the breach of duty which caused the harm to the plaintiff, but no more.
4. The characterisation of the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty.

Once the narrower risk was identified, the High Court held that a reasonable person in the position of the Association ought to have taken the precaution of stopping 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. The High Court held that the Association breached its duty of care and that this breach was causative of Ms Tapp's injuries. 

The majority found the risk as identified above would not have been obvious from the perspective of a reasonable person in the position of Ms Tapp for the following reasons: 

• Ms Tapp 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 with costs, setting aside the judgment of the Court of Appeal and replaced it with an order that there be a verdict and judgment for Ms Tapp in the agreed amount of quantum, being $6,750,000 and that the Association pay Ms Tapp's costs. 

What does this mean for organisers of dangerous recreational activities?

The High Court held that in order for the "obvious risk" exception to materialise, the harm needed to be directly caused by the obvious risk. 

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. 

Obvious risk and the differing legislative schemes in the states of Australia 

Each state has enacted legislation codifying the position with respect to obvious risk. 

In NSW, pursuant to section 5L of the CLA, a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk. However, this position differs to that of Victoria, where under section 53 (5) of the Wrongs Act there is no "absolute defence" to liability where the obvious risk arises from a dangerous recreational activity, and in contrast to the other states the Wrongs Act contains no provision governing dangerous recreational activities. 

South Australia and Queensland share a similar position to that of Victoria. 

We refer you to each state and territory's legislative schemes and their relevant obvious risk and dangerous recreational activity sections:

State	Statute	Obvious risk sections	Dangerous recreational activity sections
NSW	Civil Liability Act 2002 (NSW)	ss 5F-5I	ss 5J-5N
QLD	Civil Liability Act 2003 (QLD)	ss 13-16	ss 17-19
VIC	Wrongs Act 1958 (VIC)	ss 53-56	n/a
TAS	Civil Liability Act 2002 (TAS)	ss 15-17	ss 18-20
WA	Civil Liability Act 2002 (WA)	ss 5E-5F, 5M-5P	ss 5E-5J
SA	Civil Liability Act 1936 (SA)	ss 36-39	n/a
ACT/NT	n/a	n/a	n/a