Event organisers’ duty of care where there is obvious risk of injury

In the 2022 case of Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (‘Tapp’), the High Court of Australia considered the issue of duty of care when there is an obvious risk of injury. The case involved a participant, Ms. Tapp, who suffered injuries while participating in a campdrafting event and claimed that the injuries were a result of the negligence of the Australian Bushmen's Campdraft & Rodeo Association Limited (ABCRA), the organisers of the event. The key issue in the case was whether or not the risk of injury from participating in the campdrafting event provided an "obvious risk" defence for the ABCRA.

What is the “obvious risk” defence?

Under Australian law, a person is not liable for injuries suffered by another person if the risk of those injuries was "obvious" and the injury occurs as a materialisation of the inherent, obvious risk.

This is known as the "obvious risk" defence. This defence is extended in cases of dangerous recreational activities in New South Wales, Queensland, Western Australia, and Tasmania.

In the Tapp case, the High Court considered the application of section 5L of the Civil Liability Act 2002 (NSW) to determine whether Ms Tapp’s injury occurred as a result of the materialisation of an obvious risk of the dangerous recreational activity of campdrafting. This provision (which has similar wording to the related provisions in the above State jurisdictions) reads:

5L No liability for harm suffered from obvious risks of dangerous recreational activities

• A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
• This section applies whether or not the plaintiff was aware of the risk.

The Court determined that this defence was not made out as Ms Tapp's injury was not due to the materialisation of an obvious risk from her participating in a dangerous recreational activity; but rather caused by the dangerous conditions surrounding her participation—horses slipping on slick ground— which did not constitute an obvious risk to a reasonable person.

The facts in Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited

• Tapp was an experienced 19-year-old campdraft competitor.
• On January 8 2011, she participated in a campdrafting event organised by the ABCRA.
• That afternoon, and prior to Ms. Tapp's fall, four other seasoned competitors dangerously fell off their horses.
• Stanton, an experienced competitor, suggested stopping the competition because of the slick ground conditions after the third fall, but the competition organisers ignored the warning.
• After the fourth fall, Mr. Stanton told event organisers the ground was "unsafe" and should not be used.
• Organisers delayed the competition to discuss the situation, but ultimately decided to proceed with the competition.
• That afternoon, Ms. Tapp competed.
• Like the four earlier competitors who fell from their horses, Ms. Tapp’s horse slipped in the arena, causing her to fall and injure her back.
• As a result of this fall, Ms Tapp suffered severe and permanently impairing spinal injuries.

Ms. Tapp lodged a public liability claim seeking damages for the injuries she sustained in the fall.

Supreme Court of NSW rules ABCRA did not breach its duty of care

Ms. Tapp’s initial court case was unsuccessful.

The Supreme Court of New South Wales ruled that the Association had not breached its duty of care and that any breach was not causally linked to Ms. Tapp's injuries. Rather, the court ruled that the injuries were due to the "materialisation of an obvious risk of a dangerous recreational activity."

A majority of the Court of Appeal dismissed Ms. Tapp’s appeal.

Tapp appeals to the High Court of Australia

In the High Court, a majority (Gordon, Edelman, and Gleeson JJ) found that the respondent (ABCRA) had breached its duty of care by failing to halt the event until its organisers inspected the arena and determined its conditions were safe, despite the inherent risks associated with the activity.

The High Court also concluded that:

• Tapp's injuries were caused by the event organiser's breach of duty of care; and
• that the risk of physical injury arising from a horse slipping on the slick surface was not obvious to a reasonable person.

Thus, Ms. Tapp's injuries were not the result of an obvious risk associated with a dangerous recreational activity. Rather, the Court determined that the injuries suffered by Ms. Tapp were due to dangerous conditions (i.e. the obscure risk of horses slipping on slick ground conditions), and not as an obvious risk materialisation.

The statutory "obvious risk" defence under section 5L of the Civil Liability Act 2002 (NSW) was not established in this case.

Ms. Tapp was awarded over $6.5 million in common law compensation for her injuries.

Implications of this High Court ruling

To satisfy their duty of care to participants, organisers of events or activities must have an emphasis on identifying and remedying dangerous conditions, even where there is an ostensibly obvious risk associated with the dangerous recreational activity.

For the “obvious risk” defence to apply, the injury must arise directly from the obvious risk in a dangerous recreational activity, and not by some other supervening factor, for example, faulty equipment provided by the organiser, dangerous facilities, lack of safety protocols for the venue etc.

Get help from a personal injury lawyer for claims arising out of negligence

When considering suing for negligence after an injury during participation in an inherently dangerous activity, it is vital to seek legal advice from a solicitor experienced in public liability claims to ensure your rights are protected and you receive the compensation you deserve.

Our experienced team of personal injury lawyers can assist you with any queries you have in relation to a potential compensation claim for injuries sustained after participating in dangerous recreational activities.

Contacting Hall Payne Lawyers

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