Slippery surface or safe? Negligence in the competition arena
Competition organisers have a duty to take reasonable care to avoid foreseeable risks of personal injury to competitors which includes providing a reasonably safe arena surface for competitors to ride on.
The High Court of Australia has ordered $6.75m in damages to an injured competitor in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11.
Background
At approximately 7pm on 8 January 2011, 19-year-old Emily Tapp was preparing to compete in her final event of the day at the Ellerston Campdraft on horse Xena Lena. As an experienced horse rider and competitor, she had done this many times before. As she entered the competition arena and began her ride, she felt the ground was heavy. Her horse struggled to get a proper stride and the mare’s front legs slid to one side, causing them both to fall to the ground. Xena Lena got up after about 15 seconds but Emily could not – she had suffered a catastrophic and permanent spinal injury.
Tapp sued the competition organiser, Australian Bushmen’s Campdraft & Rodeo Association Limited (Association) for negligence but was unsuccessful both in the first instance and on appeal to the New South Wales Court of Appeal. Tapp appealed again to the High Court of Australia. The majority of the High Court (3:2) awarded in her favour and found that:
the Association had breached its duty of care to Tapp, causing her to suffer injury; and
Tapp’s injuries were not the result of the materialisation of an “obvious risk” of a dangerous recreational activity (ie. this wasn’t a case of “well, that’s just the risk you take when you get on a horse”).
The Association was ordered to pay Tapp $6.75m in damages for her injuries plus legal costs. The judgment has attracted interest from riders and event organisers for its consideration of liability for falls in the competition context.
The arena surface
Tapp’s case was that her horse fell because of deterioration in the surface of the arena leading up to her ride. 700 rides took place in the arena during the first two days of competition. The arena had been aerated (not ploughed) at the start and end of the first day of competition, but was not renovated at all on the second day, which was the day of Tapp’s fall. In the hour leading up to Tapp’s ride, four competitors had “bad falls” in the arena. An experienced competitor complained to event organisers twice that the event should be stopped as the surface of the arena was becoming slippery and unsafe. The organisers suspended the event to discuss the surface, but ultimately decided to resume because competitors should “ride to the conditions”. Ms Tapp’s accident occurred shortly after the fourth fall. The next morning, the arena was ploughed for three hours.
Was the Association negligent?
There was no dispute that the Association owed a duty to take reasonable care to avoid foreseeable risks of personal injury to participants in the event. The question was whether the Association breached that duty of care by failing to take precautions against the risk of harm. The majority of the High Court characterised the risk of harm 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”.[1] Therefore, a reasonable person in the position of the Association would have taken the immediate precaution of stopping the event in response to the substantially elevated risk of contestants being injured from falling from a horse that slipped on the deteriorated surface of the arena.[2] The majority of the High Court found that the Association had breached its duty to take reasonable care of Tapp’s safety by failing to stop the event to inspect the ground and make “an informed decision… as to whether it was safe to continue with the competition”.[3] The majority also held that the breach of duty caused Tapp’s injuries.
What is an ‘obvious risk’?
The law recognises that people have different risk appetites and may choose to voluntarily participate in dangerous activities – “obvious risks” of dangerous recreational activities are assumed by the participant. The activity provider may raise this defence against a claim for negligence in circumstances where the personal injury suffered is the result of an obvious risk of a dangerous recreational activity materialising.
The “obvious risk” defence to a negligence claim has previously been interpreted in different ways. In some cases, the risk has been characterised in a broad way, meaning that many different scenarios could be considered an obvious risk assumed by the participant. For example, the trial judge in this case broadly categorised the risk as the “the risk of falling and being injured”.[4] Based on that characterisation of risk, “the risk of falling from a horse during the rigours of a campdrafting event was obvious”.[5] However, as stated above, the majority of the High Court on appeal took a different, narrower view – the risk was 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”.[6] This risk was not obvious to competitors like Tapp, because:
Tapp was not able to examine the surface of the arena before riding on it. Although competitors could “walk the arena” before the class started, Tapp was not given the opportunity to examine the condition of the ground during the class (and particularly not in the hour before she competed, when the four other falls occurred).
Tapp was not aware of the other four falls that had occurred and had competed without incident herself earlier in the day - there was no reason to have had concerns about the condition of the ground.
A reasonable competitor would have assumed that the organiser had assessed the ground as being safe to compete on.
Therefore, the Association’s defence failed and they were held liable in negligence for Tapp’s injuries.
Key learnings
It is important to note that cases such as these are highly fact specific and liability in any situation will depend on its unique facts. However, competition organisers are reminded that they have a duty to take reasonable care to avoid foreseeable risks of personal injury to competitors. Relevantly, this includes providing a reasonably safe arena surface for competitors to ride on. If accidents and injuries occur, or if someone raises concern over the arena surface, this should raise alarm bells to organisers that further action needs to be taken to ensure rider safety. This may include stopping the class until the arena surface has been properly inspected and repaired to return it to a safe standard.
Tapp endured 8 months in hospital and 3 years of rehabilitation after her accident. She has inspiringly gone on to represent Australia as a Paralympic athlete, winning a silver medal in the women’s paratriathlon at the 2018 Commonwealth Games. She was the PTWC world champion in 2017 and 2018, and is also studying dual degrees at the University of Canberra.
*Information is general and not legal advice.
This article first appeared in Hoofbeats magazine Vol 44-1 June/July 2022.
[1] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11 at [125].
[2] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11 at [126].
[3] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11 at [143]
[4] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [133].
[5] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [145].
[6] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11 at [125].
