Dear Colleagues;

In an interesting decision on a negligence claim, the High Court of Australia in Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022) has by a 3-2 majority overturned a decision of the NSW Court of Appeal and ruled in favour of the plaintiff Ms Tapp, who was seriously injured in an accident in a horse-riding event called “camp-drafting”.

The majority at sum up the sport in this way at [78]:

 

The sport of campdrafting involves a rider on horseback working cattle. The rider rides into a "camp" or "cut out yard" where there are six to eight head of cattle. The camp is separated by a gate from an arena. The rider must "cut out" or separate one beast from the rest of the herd and, after demonstrating control of the beast, must call for the gate into the arena to be opened. The rider must then work the beast around two pegs in the arena in a figure of eight. Then, the rider must guide the beast through two further pegs to complete the course. Points are awarded for equestrianism and control of the beast within set time limits. 

 

Ms Tapp, an experienced competitor even though only 19 years of age, was seriously injured when her horse tripped over while she was competing.

The case is of general interest on questions of how to frame the relevant “risk of harm” in determining breach of duty, and the majority in particular also offers comments on s 5L of the Civil Liability Act 2002 (NSW), which precludes recovery for an event which is the materialisation of an “obvious risk” of a “dangerous recreational activity” (which will be of more direct interest to Australian colleagues.)

The accident was a tragic one which left Ms Tapp seriously injured, and she and her family will be greatly relieved at the outcome (she had lost at both previous stages in the NSW courts.) It will also accord with most people’s instincts of justice, I think, as there had been a number of previous falls of riders on the surface of the arena in a fairly short period of time before Ms Tapp’s fall, and she did not know about them before herself competing. But the case does raise a number of difficult legal issues.

On the question of breach of duty, the perennial issue arises of when a superior appellate court is entitled to overturn findings that there was no breach, made at two prior levels. The dissenters in this case (Kiefel CJ and Keane J) make this point, that in general appellate courts should be deferring to the trial judge: see [52], [67], [73]. However, there are always going to be some cases where the appellate court believes that the trial judge has not properly weighed up all the evidence, and the majority here (Gordon, Edelman and Gleeson JJ) come to that view.

In particular, in discussing the breach issue the majority say that, where the CLA 2002 applies, it is essential to frame the relevant risk of harm at an appropriate level of generality. They conclude at [125] that McCallum JA (as she then was), who had dissented in the Court of Appeal, had framed the risk accurately, in terms which they explain as:

 

the risk should be characterised as the substantially elevated risk of physical injury by falling from a horse that slipped by reason of the deterioration of the surface of the arena.

 

They then explain why, given this description, there had been a breach of duty by the Association running the event in failing to pause the event after previous incidents (and two complaints that the surface was unsafe) and conduct a serious examination of the surface to see if it was safe. See [143]:

 

the Association breached its duty of care by failing to stop the competition in order to inspect the ground and to make "an informed decision ... as to whether it was safe to continue with the competition". The Court of Appeal erred in failing to find that the Association had breached its duty of care in this respect. 

 

There is also some discussion of the question of causation in the two judgements. I found this a bit harder to pin down. The dissenters, in agreement with the NSWCA, say that the findings of the trial judge did not support the view that the condition of the arena was the most likely cause of the fall, noting other things that might have contributed- see [44]-[52]. The majority at [144] note that there had actually been a concession at trial by the Association that if it was a breach not to stop the event, then causation was established. They said that this concession should not be able to be withdrawn. But in any event they held that the facts which had been established all pointed to causation being made out- see [147].

However, it is of some interest that one issue all the members of the court agree upon is that it is no longer appropriate in discussing causation to rely on an argument that “common sense” is sufficient! Actually I am pretty sure that in any event this is not what the High Court meant in referring to this notion in March v Stramare, but in any event there is a pretty clear signal here that arguments need to be framed without a fuzzy reference to this concept. See the majority at [101]:

 

"[t]he determination of factual causation under s 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence". In this assessment, notions of "common sense" have no place. Not only do those notions have no foothold in the text of s 5D, but it has been repeatedly said in this Court that "it is doubtful whether there is any 'common sense' notion of causation which can provide a useful, still less universal, legal norm". The task of adjudication requires transparent reasoning, not consideration of whether a judge's "sense" of a result might be common with that of others.  (emphasis added, footnotes omitted)

 

See also similar remarks from the dissenters, at [46]:

 

this Court has recognised that the Act does not apply a test of “common sense”

 

(A statement that can be applied to the whole CLA in my view!)

 

Finally, on the issues of “obvious risk” and “dangerous recreational activity”, these are not considered by the dissenters (since they would have found no breach), but are discussed by the majority. There is much important material here which it would take too long to unpack, but I refer specifically to para [110] and ff where they set out four significant factors that should be weighed up in determining the relevant “generality” of the risk to determine whether it would have been obvious. Here the conclusion is that a reasonable person in Ms Tapp’s position would not have expected the surface of the arena to be dangerous, and hence her accident was not the materialisation of an obvious risk- see [150]-[156].

One point in particular was the question of the stage of a trial that a judge should consider the possible application of s 5L as a defence. The dissenters note at [31], without further comment, that the trial judge had taken

 

the approach adverted to by Leeming JA in Goode v Angland (2017) 96 NSWLR 503 at 540-541 [185] that, since s 5L is a "liability-defeating rule", it may be appropriate to consider the defence at the outset.

 

But the majority seem to suggest that this is the wrong order of consideration of the issues. At [110] they comment:

 

contrary to some views that have been expressed in the New South Wales Court of Appeal (citing Goode v Angland (2017) 96 NSWLR 503 at 506 [5], 539 [177], 541 [185]; Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103 at 113 [38]-[39]), the "risk" with which s 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence. 

 

This will obviously need further consideration where a s 5L defence is being run in the future.

 

Regards

Neil