Tapp v Australian Bushmen's Campdraft and Rodeo Association Limited [2022] HCA 11
Tort law; Negligence; duty of care; dangerous recreational activity; assumption of obvious risk
Facts: Tapp, an experienced horse-rider, entered a competitive ‘campdrafting’ event organised by the Australian Bushmen's Campdraft & Rodeo Association Ltd (the Association). In campdrafting, an individual rider enters an enclosure with six to eight head of cattle, separates one of the cattle from the herd, and drives it through a gate. While competing, Tapp’s horse slipped and fell. Tapp was thrown to the ground and suffered serious spinal injury. Tapp was the fifth rider to fall while competing that day, an unusually high number of falls. Tapp did not know that other riders had fallen, but the Association did. Tapp sued the Association in Negligence, alleging it had breached the duty of care it owed to participants by allowing the competition to continue when the surface of the arena had become unsafe. The Association claimed that Tapp’s injuries were the result of the obvious risks of campdrafting, for which the Association was not liable under s 5L of the Civil Liability Act 2002 (NSW).
Issue: Was Tapp precluded from claiming damages from the Association because she had voluntarily taken part in a dangerous recreational activity involving an obvious risk?
Decision: The Association had breached its duty of care to Tapp and she suffered harm as a result. To avoid liability, the Association had to prove that the risk which materialised was foreseeable to a reasonable person in the position of Tapp, and the Association had not done so.
Reason: In the circumstances, it was not foreseeable to a reasonable person in Tapp’s position that competitors might be injured if they fell from a horse that slipped because the surface of the arena had deteriorated. Tapp did not have the opportunity of inspecting the surface of the arena before competing; she had not known of the falls experienced by other competitors; she had not received any warnings about the surface; and she was entitled to rely on the Association to provide a safe surface. In these circumstances, s 5L of the Civil Liability Act did not relieve the Association of liability.