Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd

Emily Jade Rose Tapp (“Emily”) is 28 years old. When she was 19, she participated in a campdraft event at Ellerston, New South Wales, an event organised by the defendant. She fell from her horse whilst competing late on Saturday 8 January 2011, the second day of a three day event and suffered a significant spinal injury in the form of incomplete T11 quadriplegia. She is wheelchair bound and has most impressively gone on to perform at an elite paralympian level despite this accident and the enormous emotional and physical obstacles she has faced and continues to face.

Emily alleges that her fall from her horse was caused by the negligence of the defendant organisation, The Australian Bushmen's Campdraft and Rodeo Association Ltd (“ABCRA”). She also alleges that there was an agreement between her and the defendant that had various terms, both specific and implied, and that the defendant breached its agreement with her in a number of respects, and because of those breaches she is entitled to damages.

The defendant queries the nature and content of the duty of care alleged, denies it was negligent and says that the plaintiff has not met the requirements of ss 5B and 5C of the Civil Liability Act 2002 (NSW) (“the CL Act”). It also denies it had any contractual relationship with the plaintiff.

The defendant raised various defences available under the CL Act, in particular ss 5F and 5H regarding the absence of a duty to warn of obvious risks, and ss 5F, 5K and 5L regarding dangerous recreational activity.

The defendant also pleads in its Defence the liability waiver agreement signed by the plaintiff in December 2010, relying upon s 5M on the basis that a warning of risk was provided in that document and upon 5N in respect of the plaintiff’s signing of the waiver.

The defendant also relies upon protections pursuant to ss 60 and 61 of the CL Act on the basis that any relevant act or omission was part of community work done by volunteers.

The defendant had pleaded contributory negligence relating to the way in which the plaintiff rode her horse in the short period leading up to her fall, however abandoned that during the trial.

As damages have been agreed between the parties for the extensive, life-altering injuries to Emily, this judgment is limited to liability issues only.

Emily’s evidence in chief was largely given via her statements of 18 December 2013, 31 March 2017 and 25 May 2017. It was augmented by short oral evidence addressing her activities, achievements and living arrangements since May 2017 as well as some evidence regarding her current psychological state, and her plans for the future.

Emily is the youngest child of Ben and Traci Tapp. She was born in Brisbane and initially educated by the Katherine School of the Air by correspondence, then went to Emu Creek State School in Queensland and then St Joseph’s Catholic College in Katherine as a day student. She later attended Fairholme College in Toowoomba as a boarder.

Her parents separated and she stayed with her mother in Warwick, Queensland or her father in the Northern Territory. She describes being a very active school pupil – swimming, playing soccer, futsal and tennis. She obtained a reasonable pass in her Queensland Tertiary Entrance Rank and was accepted to the Queensland University of Technology to undertake a Bachelor of Corporate Systems Management, intending to start in February 2011, however this accident intervened.

Emily had plans of completing her university degree and seeking a job in the financial sector with hopes of working overseas.

Emily had ridden horses from the age of five, living as she did on rural properties. She and her siblings had been involved in campdraft events from the time she was six. Starting with Pony Club, she worked her way up to junior campdraft events, and then juvenile campdraft events and had won many campdraft competitions. From the age of 12, between December to late January, she and her family travelled throughout New South Wales and Queensland to compete in the ABCRA and Australian Campdraft Association (“ACA”) campdraft events and other campdraft events during other school holidays. She did well in these events, participating in about six campdraft events per year.

Emily described campdrafting as follows: [1]

Darren Shorten, a Director of the Hunter Zone of the ABCRA at the time of the accident and the only lay witness called by the defendant outlined the sport of campdrafting in his statement of 30 November 2016 as follows:

Although Mr Shorten was extensively cross-examined by senior counsel for the plaintiff about a number of aspects of his evidence, there was no challenge made to his description of the activity or its risks. Indeed the cross-examination [2] appeared to proceed on the basis that those assertions were accepted.

Emily’s father Ben Tapp gave the following evidence about Emily’s experience in campdraft:

Emily and her sister Courtney had nominated in the Ladies’ Campdraft for Ellerston and that Emily was going to compete on two horses, Xena Lena and Chiquita. A few weeks before the Ellerston Campdraft, Emily said that Courtney had “downloaded the entry form from the website and completed it for herself, Emily and her father”, and that they each signed the entry form and it was then emailed to the defendant and the entry fee was paid by credit card. Courtney did not give evidence to that effect in her statement or in her oral evidence. She did however agree that she sent the email to Ms Shorten and knew Ms Shorten was the “Secretary of the Ellerston Campdraft”. [3] Emily’s evidence about this seems to be mistaken, and the “contract case” made on her behalf did not proceed on the basis of this assertion.

It was the plaintiff’s case that the relevant “contract” between Emily and the defendant comprised the email of Courtney to Leanne Shorten dated 17 December 2010, nominating various horses for the novice, open ladies and restricted open categories and to “please let us know payment details.” Emily gave evidence that her understanding was that her father paid her entry fees for the ladies and the open. [4] Emily’s father said he paid in cash to the “Secretary’s Box” on Thursday 6 January 2011 at Ellerston. [5] He could not recall if he paid a male or female, or what the organisation was he paid the money to – he “just assumed [it was] whoever is running that event there”. [6]

In evidence, annexed to a statement of Craig Young (Executive Officer of ABCRA since October 2017), [7] was a document he identified as a copy of Emily Tapp’s membership form obtained from the ABCRA records. This document is annotated on the first page with the name, address, phone number and the date of birth of Emily, and under the heading “Office Use Only” there is reference to an amount paid of $166 by credit card on 29 October 2010.

On what appears to have been the second page of that form, headed “Liability Waiver Form” is a signature which Emily identified in her evidence as her signature. The form seems to be dated 27 December 2010 (although the date is overwritten and hard to read). Emily’s full name and address in the Northern Territory is also on the form.

There was cross-examination about this form, its significance, and Emily’s understanding of it when she signed it. Her evidence on this issue was somewhat halting and there were a number of long pauses before questions were answered:

The waiver is annexed to this judgment, and its contents are significant to the determination of this case. It is headed “LIABILITY WAIVER FORM” and the defendant relies on its full terms and effect, however I extract the following part of it for direct examination here. Under the heading “EXCLUSION OF CERTAIN RIGHTS TO SUE” the following appears:

Emily said that she travelled to Ellerston with her sister Courtney and a family friend, Mr Underwood. This was the first time that she had competed at Ellerston. She arrived late Friday afternoon, 7 January 2011. Her father had arrived a few days earlier with the horses.

On Saturday 8 January 2011, Emily watched her father and had two runs herself in the Ladies’ Campdraft. Just after the Open campdraft commenced at about 5pm on Saturday 8 January 2011, her father offered her his place in the Open campdraft, riding on his horse, Xena Lena. This was able to be done without needing a fresh entry form. Emily said that she had ridden Xena Lena on many occasions, recreationally and at campdrafts, and had ridden her the previous weekend at another campdraft competition.

Emily described warming up the horse and returning to the arena area but she was too early and so left again to go to a grassy area about 200-250 metres away. She says that when she returned to the camp, she realised the event was delayed because no one was competing in the cut-out yard or arena, but she had not heard any announcement describing why there was the delay.

Emily waited for about five minutes and then the event recommenced. In her statement dated 18 December 2013 she set out events this way:

The description given in her second statement of 25 May 2017 differed slightly:

Nothing rests on these differently worded descriptions in my view.

Courtney gave a description of what she saw of the moments preceding the fall: [13]

Emily’s father, Ben Tapp, describes what he saw: [14]

The ABCRA is a corporate entity for overall control of the sport of campdrafting. According to its Memorandum of Association, [15] the objects for which the association is established include relevantly “to encourage, foster and promote campdrafting and rodeos in Australia; to promote friendship and good fellowship amongst persons interested in campdrafting and rodeos; to coordinate and assist all organisations conducting campdrafts and rodeos in Australia; to assist generally in the promotion, conduct and propagation of camp drafting and rodeos in Australia and to assist in obtaining uniformity of rules and standards of the sports of campdrafting, rodeos and other sports involving horsemanship conducted at rodeos in Australia”.

Paragraph 4 of the Memorandum of Association makes it clear that the ABCRA is designed to be not-for-profit:

Craig Young, the executive officer of the ABCRA since October 2017 confirmed that the ABCRA is a not-for-profit organisation: [16]

Craig Young also explained [17] that in the relevant financial year (and afterwards) the ABCRA did employ a number of staff carrying out administrative roles and they were paid a salary by the ABCRA. The executive officer, receptionists, events administrators and marketing and accounts officers were paid.

Relevantly to the volunteers defence raised in the proceedings Mr Young stated:

Mr Young was not cross-examined and his statement was admitted without objection.

Darren Shorten was the only witness who gave oral evidence for the ABCRA. He was director of the Hunter Zone of the ABCRA. He described that as an honorary position. [18] He was employed as assistant pastoral manager at the Ellerston Station but in performing his role for Ellerston District Sports Club he was not paid any fee or salary and the position was voluntary. He said that any profits are not distributed to members and would be donated to charity. [19]

The role of the Ellerston District Sports Club was to coordinate and conduct carnivals and rodeos affiliated with the ABCRA and to assist the competitors and to encourage amateur and novice sportsmen in camp-drafting, rough-riding and horsemanship generally. [20]

Object 2.4 of the Constitution states:

Ellerston is in the Hunter Valley and the campdraft event is held once a year on a property known as Belmont. Mr Shorten said that there was limited advertising about the event, that it was a very popular event and the open date for entries was 13 December 2010.

Mr Tapp gave evidence that when he arrived on the Wednesday before the event (5 January 2011) it was wet and that it had rained the day before the day of the accident (7 January 2011), but on Saturday, the sun was out. [21]

Mr Shorten’s evidence regarding the preparation of the surface for the arena and its state on the first day of the campdrafting event – 7 January 2011 – was as follows: [22]

The Ellerston District Sport Club Incident Report – 12 January 2011, also notes as the first bullet point:

Annexed to his statement was the ABCRA Hazard and Risk Assessment form which Mr Shorten stated was completed “in the days prior to the event”. [23] It was tendered by the defendant (Exhibit 5) and has handwritten at the top “Ellerston District Sports Club”.

During his oral evidence Mr Shorten confirmed, consistently with paragraph [10(a)] of the Amended Defence, that the Hazard and Risk Assessment form had been completed by Leanne Shorten. She was not called by the defendant to give evidence. It was clear however that Leanne Shorten was available to give evidence should the defendant have chosen to call her. She attended Court on 2 May 2018 pursuant to a subpoena issued by the plaintiff’s solicitor however she was not called to give evidence for the plaintiff. At the request of senior counsel for the plaintiff, Ms Shorten was formally excused by the Court on that same day.

A submission was made by senior counsel for the plaintiff, Mr Bartley SC, that I should draw a Jones v Dunkel [24] inference from the absence of any evidence from Ms Shorten (and a list of others). This is a matter to which I will return, but I note persuasive submissions from counsel for the defendant explained why I should draw no such inference.

The Hazard and Risk Assessment form addressed a number of parameters including “Ground surface”. The “Risk” column in respect of that item has typewritten on the form “Injury to spectators and competitors”. In the column headed “Risk Level” the letter “L” is handwritten. The same letter is written in respect of each parameter in the four page document. Handwritten in the column headed “Controls” for the “ground surface” parameter is the following: “ground maintenance carried out prior to event”.

Mr Shorten included the following detail in his statement: [25]

Mr Shorten noted in his statement that previous campdrafts before 2010 had been only over two days and this campdraft was to be over three days. He stated that the “fact of this extra day was one of the reasons raised in the discussion about renovating the ground.” [26]

The ABCRA Rule Book was tendered by the plaintiff. The “index” shows a general section, there was a significant part devoted to rodeo rules and then a smaller part devoted to campdraft. The parts relied upon by the plaintiff were:

As stated in the Amended Defence and Mr Shorten’s evidence, the arena “was renovated by running a tractor with a renovator or aerator attached to it over the surface”. The evidence establishes this was done prior to and after competition on Friday 7 January 2011.

Mr Shorten said that he competed on Saturday 8 January 2011 in the maiden draft, and one of his sons competed in the juvenile draft and his other son in the maiden draft. His wife Leanne won the first round of the ladies and had another horse in the final. He said in his oral evidence that he would not have allowed them to compete if he thought the ground was not safe [27] and nor would he have competed himself if he thought the ground was unsafe. [28]

The open draft started around mid-afternoon on the Saturday. Mr Shorten described this as “…open for novice and open horses only. A novice horse is a horse that has won a maiden or a ladies draft and an open horse, a horse that has won an open draft or five novices. They are your elite class of horse in campdrafting.” [29]

He described his first ride in the open draft (at number 17) and that he had no problems with the ground returned a good score of 88 but after completing the course “…he slackened off the reins, he relaxed the horse relaxed” and he fell onto his shoulder. He said he did not have another ride that day and that in his opinion, his fall had nothing to do with the surface. Mr Shorten’s score of 88 for ride 17 of the open draft is recorded on Exhibit 9 which was described as “Open Draft Draw”.

Mr Shorten then described the following events:

A significant attack was made in cross examination upon Mr Shorten’s evidence. That attack was successful in respect of the contents of the announcement made at the time, and a couple of other matters.

An earlier statement signed by Mr Shorten in May 2011 gave a different version from what was contained in his November 2016 statement in respect of two potentially significant matters.

The first was his description of the condition of the ground. In his May 2011 statement Mr Shorten had said:

The second was that contrary to what Mr Shorten has said in paragraph [28] of his November 2016 statement set out above, in his May 2011 statement, Mr Shorten said:

The only other version of the announcement made was one of the bullet points in the “Ellerston District Sports Club Incident Report” dated 12 January 2011: [30]

This document was signed by Jack Callinan as President and Leanne Shorten as Secretary of the Ellerston District Sports Club respectively. What is meant by “ride under the conditions” was not explained by evidence from the authors of the Incident Report or by anyone else. The report does not purport on its face to quote the announcement made.

I do not rely on the Incident Report as evidence of the words spoken in the announcement. Neither Jack Callinan nor Leanne Shorten were called to give evidence, nor was any statement tendered from either person, despite the apparent relevance of the roles they performed. The person who actually made the announcement remains unclear although Mr Shorten said it may have been Jim Callinan or Des Collerson but he “didn’t really know”. [31]

I have concluded that Mr Shorten’s first statement made at the time closer to the events is more likely to be accurate. He was not able to explain why he gave a different version of events in 2016 to that which he gave in 2011.

I am satisfied that no specific oral warning was given to Emily and no suggestion was made, by announcement or otherwise, that competitors “rode at their own risk”. I conclude it is likely that what was announced was limited to an offer of a refund if riders chose not to compete.

I accept the evidence of Emily and her father, Ben Tapp, that they did not hear any announcement at that time. I accept that at the relevant time Emily was focusing on readying herself for the event, with the help of her father, in terms of beast selection. Mr Tapp clearly has a hearing impairment and with admirable frankness and directness, which was a feature of all of his evidence, he agreed that he may well not have heard any announcement because of his hearing impairment.

Even if, contrary to what I have found, an announcement was made, warning competitors to “ride at their own risk”, this would not have been an adequate warning on its own in the circumstances given it was a campdrafting event during competition with evidence that people spread out to rest or warm up for their events. There is no evidence any announcement of that type would have been able to be heard by relevant competitors.

There was a submission made by Mr Bartley SC that I should not accept any evidence of Mr Shorten as his credibility was “in tatters”. I do not accept that submission, but I do find that his change in position on the matters that changed in his later statement was not satisfactorily explained. I found Mr Shorten to be a genuine person who was flustered by the processes of cross-examination, but was doing his best to be truthful and to assist the Court.

Emily gave evidence that I accept, that she did not observe any falls and was unaware that there had been any falls during the open event.

The Incident Report refers to there having been “7 falls over the course of the day”. The Amended Defence admits that there were falls at 6:14pm (Nick Clydsdale, draw number 65), 6:36pm (Pat Gillis, draw number 82) and 6:58pm (Brad Piggot, draw number 98).

Exhibit 9, which was the Open Draft Draw, has some handwritten timings on the right side of the page, the origins of which remain unexplained, but from the submissions from senior counsel for the plaintiff I understand these are identified as rides where the rider fell.

There are four noted before Emily’s fall. The evidence is thus unclear about how many falls occurred overall and where they occurred. The only admissible account as to the reason(s) for one of the falls before Emily’s is Mr Shorten’s where he says that he fell after completing the course, because he slackened the reigns. There was limited information from Mr Shorten as to where he saw two other falls take place. [32] He said that he saw both Pat Gillis and Adam Sadler fall and that they were both in the arena when they fell; Sadler was coming towards the gate and Gillis was between the first and the second peg.

Photographs tendered – Exhibit O – were not sufficiently explained by evidence to allow me to draw any conclusion other than they show two men falling from their horses in what looks like an arena. They do not assist me in drawing any inference or any conclusion about relevant issues, other than that it is agreed they show two of the people who fell on that day.

A report of Douglas Partners dated 26 November 2013 described a retainer to collect soil samples from the property “Belmont” on 30 October 2013. The site identified by the author of the report, Mr McFarlane, was “said to be” in a former campdraft arena located on the property situated on the western side of Hunter Road, about 700 metres north of the intersection with Tomaula Road, Ellerston. The relevant conclusions from the soil sampling seem to be that the soil on the top strata was silty clay described as “hard, dark brown silty clay of medium plasticity, trace fine sand and fine root hairs”. In the next strata was clay, described as “hard, orange-brown clay of low plasticity, trace fine sand and gravel, root holes to 2mm diameter throughout.” The evidence does not satisfactorily establish whether this was in fact the campdraft arena in 2011 and whether the soil has changed since then.

A report of Dr Gunnar Kirchhof, soil scientist, dated 8 February 2014 carried out an analysis of site topography from photographs taken by Douglas Partners, rainfall data he was given, and the soil data and soil samples collected. It assumes that: [33]

Dr Kirchhof noted that there was uncertainty or insufficient information of the method used to prepare the site prior to the campdrafting and on the night of 7 January 2011. Under the heading “Likely soil surface condition in relation to rainfall, cultivation and trampling”, a heavily qualified opinion was given: [34]

There is then a series of graphs which were not explained by any evidence. The validity or otherwise of the assumptions made remains unclear. In any event, the conclusion reached by Dr Kirchhof was so qualified that there is minimal, if any, assistance to be gained from his report, particularly noting the conclusion on the final page, under the heading “Uncertainties”: [35]

I give both of the reports limited weight because assumptions based on specific rainfall measurements were not established on the evidence, and Mr Kirchhof’s own heavily qualified conclusion. On the question relevant for my determination, the issue was whether the surface of the arena fitted the ABCRA Rule Book requirement of “safe, being either ploughed or soft surface (sand or loam) arena”. It is accepted the arena was aerated but not ploughed until the day of Emily’s fall, however what was meant in the Rules by “loam” remained unclear and general evidence from Mr Tapp that “Ellerston is rich black soil country” [36] tells me nothing relevant about the soil in the arena.

It is common ground that Hunter Doughty was a very experienced person in horse-related pursuits and study. He holds a Graduate Diploma of Education as well as a Graduate Diploma in Applied Science (Agriculture, Equine), and a Master in Applied Science (Intensive Agriculture, Equine).

Whilst Mr Doughty’s curriculum vitae outlined that he lectures in equestrian coaching, horse behaviour, equine locomotion and the equine industry (including ethics, risk management, responsible behaviour within the industry, and event organisation) nothing at all was said regarding organisation and/or management of campdrafting events or even competing at such events.

Mr Doughty’s first report dated 28 November 2014 proceeded on a reading of various material, including the ABCRA Rules about which he makes certain interpretations. He concluded that the Rules require that there should have been a “Grounds Officer” appointed for the event whose primary concern is safety. He expressed concern that there was no grounds officer “identified in the documentation” and no person identified to take specific responsibility for the safety of the arena at the event. He described a grounds officer as being required to:

I interpolate that it is unclear on what basis he was appropriately briefed and qualified to reach the views he did as there was no evidence that he had ever organised or attended campdraft events, and his conclusion that the Rules demanded a devoted “grounds officer” that day is not supported by those Rules or any other document in evidence.

Relying upon the Incident Report, he concluded that at approximately 6:45pm the ground “had noticeably deteriorated” due to moisture and the environmental conditions at the time, to the extent that a judge of the junior campdraft and Director of the Hunter Zone, Mr Darren Shorten, discussed the condition of the ground with Mr Allan Young. Mr Doughty also assumed that there had been seven relevant falls prior to this discussion.

Mr Doughty then proceeds to assume that what is recorded in the Incident Report reflects that there was a decision made that the ground was “not safe”, stating: [37]

Mr Doughty said: [38]

Mr Doughty went on to make a number of other assumptions about the state of the ground without reference to a proper basis for those assumptions: [39]

I interpolate here again, Mr Doughty has no basis to state there was “standing water” on the ground that would under the Rules activate the need for a grounds officer. Nor was there any reason to conclude that the note in the Incident Report that the ground “had noticeably deteriorated”, meant that it was unsafe. The evidence is that 700 rides had occurred that day in the arena so it is unsurprising that the ground would have “deteriorated”.

Mr Doughty went on to refer to the part of the Incident Report which refers to “seven falls over the course of 8 January” and that there were no falls on 9 January. He cross-referenced this statement to the document he refers to as the “an incomplete record of the Open Draft Draw” (Exhibit 9) which indicated to him only a total of 5 falls:

He concluded that the Open Draft Draw shows four “bad falls” and Emily’s “very bad fall” all occurred within approximately 50 minutes, between 6:14pm and 7:04pm when the competition was halted.

Mr Doughty concluded that the number and rate of falls “increased dramatically” in the hour prior to Emily Tapp’s fall, and that, in his experience:

He concluded that the competition should have been suspended prior to Emily Tapp’s fall.

In a supplementary report dated 28 May 2017, having been provided with a number of statements and some photographs, and a further evidentiary statement of Emily Tapp, Mr Doughty concluded, consistently with his first report, [40]

In respect of the Hazard and Risk Assessment document referred to in paragraphs [46] and [48] of this judgment, Mr Doughty was asked to indicate whether the document showed an adequate hazard and risk assessment had been carried out on the arena surface. His reply was: [41]

Mr Doughty said in response to a question as to whether the arena should have been disc ploughed prior to the commencement of the competition and/or prior to the plaintiff’s injury: [42]

In response to a question as to the importance of having a grounds officer appointed and present at the competition “as required by the Defendant’s rule book”, Mr Doughty said: [43]

In terms of a suggestion that the plaintiff should have been provided with an opportunity to inspect the arena surface, Mr Doughty concluded that he “did not think the Plaintiff or any competitor should be put in a position of having to decide if the arena is safe to compete on or not; that is clearly the responsibility of the grounds officer and responsibility of an event organising committee.” [44] Mr Doughty also noted that “it is a general expectation across sports that if the competition has not been halted, then the organising committee must think there is no significantly increased risk and it is safe to continue.” [45]

Mr Doughty observed that given the circumstances that arose, “the plaintiff and remaining competitors should have at least been allowed the opportunity to examine the arena surface to allow an informed decision to be made.” [46]

Ultimately, however, it is clear that Mr Doughty’s view is that given the increased risk to competitors and horses, the competition should have been halted after the fall at 6.36pm at the latest.

As was made clear in Goode v Angland [47] at [185] by Leeming JA, with whom Beazley P and Meagher JA agreed, a defence under s 5L:

The defendant pleaded that it is not liable for any harm suffered by the plaintiff because her injuries were due to the materialisation of an obvious risk of a dangerous recreational activity. [48]

Section 5L of CL Act is in the following terms:

The provisions of ss 5F and 5K are also relevant:

Mr Bartley SC (correctly) emphasised that the defendant carries the onus of proof in relation to this defence. In the plaintiff’s written submissions dated 30 August 2018 (“PWS”), a submission was initially made that “the evidence in the present case does not permit a finding of fact that the activity upon which the Plaintiff was engaged was “a recreational activity”.” [49] This position was abandoned in oral submissions made on 10 October 2018. Argument was developed in the PWS that the evidence does not justify a finding that the activity of campdrafting was a “dangerous recreational activity”. It was argued that it was “an activity directly related to the working role of horse and rider in mustering and handling cattle and in a “real life” situation”. [50] In contrast, dressage for example, whilst it derived from the historical use of horses in a military context, could longer be said to be anything other than a recreational activity.

It was submitted that the evidence presented on the issue was “scant”, and that:

In respect of whether the harm Emily suffered was a result of the materialisation of an obvious risk of that activity, it was argued that: [53]

It was argued that the following matters were not risks that would have been obvious to the plaintiff when she entered the arena to compete in the event. First, that the defendant would disregard its own safety requirements as to the ongoing maintenance of the arena; second, that the defendant allowed the event to continue notwithstanding the requests made by Mr Stanton; third, the defendant allowed the event to continue notwithstanding the concentration of falls which had occurred in a short time before the plaintiff entered the arena; and fourth, that the defendant would convey no information as to the state of the arena save for an offer that if persons did not wish to compete they could have a refund. [54] Accordingly, Emily’s fall was not a materialisation of the known risks and the real risks, those listed, were not obvious.

Senior counsel for the defendant, Mr Watson SC, accepted that it carried the onus in respect of establishing this defence. Goode v Angland at [185] made clear that the proper approach to a claim where s 5L is raised as a defence is first, for that defence to be dealt with at the outset, and second, if it applies, it is an answer to the plaintiff’s claim in both contract and tort.

The matters that need to be made out are first, the plaintiff was engaged in a recreational activity; second, that the recreational activity was a dangerous one (that is, one which involved a significant risk of physical harm (s 5K)); third, that there was a risk of that activity which was an obvious one (that is, a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff (s 5F)); and fourth, the harm suffered by the plaintiff was the result of the materialisation of that obvious risk. [55]

In order to construe s 5L in its proper context and having regard to the general purpose for which it was enacted, the Court may have regard to extrinsic materials.

Reference was made to the then Premier Mr Carr on 23 October 2002 having said in the context of the introduction of this part of the CL Act: “personal responsibility will rightly assume a much higher profile in our law thanks to these reforms” and “the insurance crisis served to highlight just how far the law has drifted away from the concept of personal responsibility.” [56] There was also reference to Mr Carr’s statements in the Second Reading Speech specifically about s 5L and related provisions: [57]

To take this material into account is consistent with the approach of Leeming JA in Goode v Angland at [209].

This material provides clear guidance as to how s 5L and its related provisions must be construed to give effect to the general purpose and policy behind the provisions which was to make a very significant change to the law of negligence, the purpose of which is, in part, to exclude liability for claims arising from risky activities.

Recreational activity would plainly include participating in a competitive campdrafting event.

“Dangerous recreational activity” is exclusively defined in s 5K to mean a recreational activity that involves a significant risk of physical harm. The materialisation of a risk from an objectively dangerous recreational activity is not required in terms of subjective knowledge by an individual plaintiff of a danger of serious injury; the legislation applies even if the plaintiff is not aware of the risks (ss 5F and 5L(2)).

Mr Watson SC argued that “significant risk of physical harm” is a composite phrase:

In accordance with Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 at 427 [50] (“Fallas”), the question of whether a particular activity is dangerous will depend on the particular objective circumstances in which the plaintiff was injured. The analysis made by Ipp JA in Fallas (referenced in the PWS), notes that even an innocuous activity can become dangerous, depending on the manner in which it is being carried out. In the plaintiff’s case the activity of campdrafting was acknowledged by the plaintiff as involving serious risks. In Goode v Angland, riding in a competitive horse race was found to be a dangerous recreational activity, and that it is obvious. Dangers in campdrafting arise from “the unpredictable nature of horses, the fact that the horse is being ridden at speed, the potentially catastrophic harm if there is a fall, and the fact that the participant is chasing a “beast”.” [58]

In respect of the third criteria, Mr Watson SC submitted that there was a degree of overlap in the circumstances of this case or in the circumstances relating to “significant risk of harm” and those relating to “obvious risk”. This is not a case in which the factors that make the activity dangerous are different to the factors which allow a conclusion to be reached that the injury was as a result of the materialisation of an obvious risk. In this case, the risk of harm which made the activity dangerous was the same risk which “came home”, namely, the risk that a person might suffer a serious injury if the she fell from a horse during competition. [59]

The approach of the trial judge in Goode v Angland [2016] NSWSC 1014 in relation to the identification of the obvious risk (in that case, horse racing), was correct and it would be erroneous to identify the risk at any greater level of particularity than “both the risk that a rider might fall from a horse and the risk that serious injury might be caused by the fall are obvious risks of riding a horse in almost any situation”. [60]

Whether a risk is obvious is to be determined objectively in accordance with s 5F and the question is whether it was a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. This position is a reflection of the position at common law (see Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754; [2004] NSWCA 247 per Tobias JA at [161]) and this continues to be the test. There is a requirement that the circumstances take into account the plaintiff’s age, observations and experience (Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor (2006) Aust Torts Reports 81-860; [2006] NSWCA 101 at [152] (“Dederer”); Jaber v Rockdale City Council [2008] NSWCA 98. Inadvertence to objective risks by a particular plaintiff does not negate their obvious nature.

Transposing that test to the facts of this case, this would reference a young adult with experience in campdrafting who had no physical or cognitive disabilities. It was submitted that a reasonable person in the plaintiff’s position would be aware that a fall from a horse at speed could involve serious injury or death.

It was also argued that the plaintiff signed the waiver agreement which warned her specifically that campdrafting was dangerous and that she may suffer serious injury or death from participating.

In respect of the fourth issue, materialisation of an obvious risk of a dangerous recreational activity, reliance was placed on the analysis by the NSW Court of Appeal in Dederer. It was submitted that the possibility that the plaintiff may fall from her horse while competing was an obvious risk of the activity in which she was engaged, and the serious spinal injury she suffered from the fall plainly was the result of a materialisation of an obvious risk of the activity.

I am persuaded by the defendant’s analysis of the four matters that the defendant must prove to bring itself within the provisions of s 5L, and I find that they have all been established on the evidence.

There is in my mind no doubt that the plaintiff was engaged in a recreational activity, namely a recreational campdrafting competition, at the time she was injured.

I also have no difficulty in concluding that the recreational activity was dangerous. I am conscious of the evidence and submission that falls at campdrafting events were rare, but the potential harm is catastrophic, as it was here. It is widely known, and Emily accepted that she knew, that there was a risk of serious injury, head injury or even death from a fall from a horse. The waiver form she signed was to a similar effect. An activity may be a “dangerous recreational activity” even though the probability of such harm is low: Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [31].

I am mindful of the descriptions given by Emily (set out in paragraph [14] of this judgment) which includes the need to ride “at speed” [61] on horseback to “control” and “cut away” a beast from the bigger group, work the beast around two pegs in a figure of eight course in the arena and guide the beast through another gate, all within a set time limit with points awarded for horsemanship and beast control.

In relation to the speed of movement of the horse, Emily acknowledged in cross-examination that this would be conducted at a canter but would not agree it would have been a gallop.

Mr Shorten described the event as “competitive”, involving riding a horse at a high speed, often in a full gallop, around a course which has pegs and involving the rider steering the horse around the course. He noted a number of risks including that the horse could fall by losing its footing or contacting the hooves of the animal being chased. The rider could lose balance and fall off. Horses can be unpredictable animals and so can the livestock which the riders chase in the events.

In respect of the third consideration, was the risk of the dangerous recreational activity obvious, the test is objective. I accept Mr Watson SC’s submission that for the purposes of the present case, a reasonable person in the position of the plaintiff means a young adult with experience in campdrafting as described.

I accept that a wide approach must be taken when identifying whether the risk was obvious. It has been said that it is unnecessary and undesirable to define the particular risk of harm with a high degree of particularity. [62]

In my view it is unnecessary and a distraction to attempt to confine the risk by re-writing a risk that is obvious into a false construct that the risk only arose from the precise asserted circumstances on the day, based on some kind of inchoate perception of “unsafeness” of the ground of the arena at the time the plaintiff competed, or via an unfair hindsight reconstruction because an individual offered the view the ground was unsafe and the plaintiff later fell, even taking into account people fell before she did. It would not be a proper approach to identifying the question of whether the risk was obvious, to introduce additional complexity to the obvious risk of the undertaking, which was the risk of falling from the horse and suffering an injury whilst competing in a campdraft competition, given the complexities and risks inherent in and associated with that activity.

I am satisfied that the risk of the dangerous recreational activity in which the plaintiff was engaged was obvious.

On the fourth question, that is whether the harm suffered by the plaintiff was a result of the materialisation of the obvious risk, the risk was the risk of falling and being injured or alternatively that the horse would fall and as a consequence of that, the plaintiff would fall and be injured. What the evidence establishes is that the horse slipped and the plaintiff fell from the horse. In my view the harm suffered by the plaintiff was the result of the materialisation of an obvious risk and it follows that s 5L applies to operate to deny the plaintiff’s claim.

The defendant has pleaded in paragraph [99] of its Amended Defence to the Amended Statement of Claim that any injury suffered by the plaintiff was a result of the materialisation of an obvious risk, and that it had no duty to warn the plaintiff of that risk.

Section 5F of the CL Act is in the following terms:

Section 5G of the CL Act is in the following terms:

Section 5H of the CL Act is in the following terms:

Mr Bartley SC argued that the generalised risk relied upon by the defendant, that “people who ride horses can fall off and that is sufficient” was contrary to authority; “a far greater level of specificity is required”: C G Maloney Pty Ltd v Hutton-Potts and anor [2006] NSWCA 136 at [173]-[174] (“C G Maloney v Hutton-Potts”), Fallas at [98] and Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (“Alameddine”).

The question the Court should ask itself is the extent to which the plaintiff should know that a defendant might be negligent; s 5G should never be able to be utilised to “exculpate a negligent defendant”. [63]

Mr Bartley SC submitted that the defendant has to fail on this defence as its conduct in failing to maintain the surface of the arena and failing to respond to complaints about the surface and the repeated falls in the time leading up to the plaintiff’s fall, are things that cannot be said to be obvious to a reasonable person in the position of the plaintiff. All the surrounding circumstances that occurred immediately prior to the harm must be taken into account.

Reliance was placed on these statements in Fallas:

Division 4 of Part 1A of the CL Act is not tied to recreational activities, but is to protect persons from being sued for a failure to tell another person what should have been obvious to that other person in the first place. The plaintiff was entitled to assume that the event was being conducted in accordance with “its rules”, and that therefore safety measures contemplated by the rules had been complied with.

The written submissions circle back to the asserted failure of the defendant to have proper regard to “all the warning signs” that had come up during the day and that on the plaintiff’s case, the emphasis remained upon completing the event (which was irrational) rather than the safety of the competitors.

The submissions set out in [117]-[120] of this judgment were relied upon by Mr Watson SC for the purposes of resolution of this defence.

I find that the defendant has established that in the circumstances, it had no obligation to inform the plaintiff of the risk of falling from her horse during the campdraft event, as this risk was obvious. Unlike the hidden risk of slipping whilst simply walking across a floor due to excess polish, not known to the user of the floor in C G Maloney v Hutton-Potts, the risk of falling from a horse during the rigours of a campdrafting event was obvious. The risks entailed in walking across an apparently recently polished floor that had a hidden risk of excess polish (clearly found to be the cause of the fall) are very different to riding at speed on a horse and corralling a beast, in a particular required configuration, in a relatively confined space where the activity itself is known to entail a risk of falling.

I reject the submission in the PWS that s 5G can “never exculpate a negligent defendant”. It is exactly what s 5G does do if a plaintiff asserts “negligence” by a defendant for failing to warn a plaintiff where the risk was obvious. The submission also assumes a finding of “negligence” on the part of the defendant, which, as outlined later, is not a finding I make.

The defendant further pleads that it did not owe a duty of care to the plaintiff because the risk of injury was the subject of a risk warning to the plaintiff, both in the waiver agreement signed by the plaintiff and the warning said to have been given by the announcement at the event. [64] I will put to one side the alleged announcement because I have already found no such warning was given, and will focus on the waiver signed by Emily in December 2010.

Section 5M of the CL Act is in the following terms:

Mr Bartley SC first submitted that the membership application containing the waiver could not be interpreted to relate to the risk to which the plaintiff was exposed by the deteriorated condition of the arena at the point in time when she entered the arena for the ride during which she fell. Reliance was placed on the conclusions of Macfarlan JA in Alameddine at [55]:

Macfarlan JA went on to observe that if, as is appropriate, this provision is construed contra proferentem, it should not be read as extending to the defendant’s negligence in that case.

Mr Bartley SC submitted that the waiver here should not be read so favourably to the defendant as to encompass its own conduct at this event. A waiver cannot be interpreted to give the defendant “carte blanche both contractually and tortiously”, but “would need by clear words or necessary implication to extend to the sequence of breaches which led to the plaintiff’s fall.” [65]

Section 5N does not apply to limit or preclude liability, but only permits parties to certain contracts to exclude, restrict or modify certain liabilities, citing Alameddine and Insight Vacations Pty Ltd (t/as Insight Vacations) v Young (2001) 243 CLR 149; [2011] HCA 16.

Mr Watson SC argued that the plaintiff’s submissions evidence a misunderstanding of the ABCRA’s case based upon the waiver of liability that she gave to ABCRA. The plaintiff’s suggestion that the waiver applies specifically or individually to the Ellerston campdraft is wrong. The waiver is a general precondition to the plaintiff becoming a member of the ABCRA and the plaintiff engaging in any of the relevant activities organised by the ABCRA.

The terms of the waiver are comprehensive and extensive. The submissions made on behalf of the plaintiff do not appear to contest that if they are to be applied to the injury suffered by the plaintiff, then the terms of the waiver operate to defeat the plaintiff’s claim.

The argument that the terms of the waiver were to be incorporated into the asserted contract between the plaintiff and the ABCRA is wrong. The assertion that s 64 of the Australian Consumer Law (“ACL”) prevents the ABCRA from relying upon the waiver is also wrong.

The proper reading of the waiver is that the plaintiff is prevented from suing ABCRA for personal injury arising from her participation in, amongst other things, a campdraft event. The arguments raised by the plaintiff about the effect of the waiver are based on irrelevancies.

In any event, s 64 of the ACL is subject to s 139A of the Competition and Consumer Act 2010 (Cth) (“CCA”) and s 275 of the ACL. The effect of each is to read down s 64 of the ACL in respect of exclusionary provisions applying to recreational services (such as have been found here). Those provisions were designed to meet this kind of case.

To the extent that the plaintiff alleges that those involved in the decision to allow the event to continue were reckless (and thus activate s 64 of the ACL and/or s 64 of the CL Act), that suggestion should be firmly rejected. The suggestion that those involved in the decision to continue the campdraft event were recklessly indifferent to the safety of their friends and family is absurd. It was not pleaded and it was not put to Mr Shorten.

I am of the opinion that the arguments made by the plaintiff are incorrect and the comfort sought to be drawn from the conclusions of Macfarlan JA in Alameddine are misplaced. I accept in full the defendant’s submissions in respect of this defence and will later deal specifically with the contract allegations and the operation of the ACL and CCA.

Section 5M of the CL Act makes it clear that a risk warning for recreational activities can be given full force and effect so that there is no duty of care where a risk warning such as that set out in the waiver form has been given. The terms of the waiver are clear and require the signatory to acknowledge campdraft is a recreational activity, that there are risks, that there is a risk of personal injury or death and that by signing the waiver the plaintiff understands she is waiving her rights to sue “whether caused by the negligence of the provider, its employees or agents, however caused or otherwise”.

As stated by Basten JA in Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128 it is possible to warn of a risk without instructing the recipient of the warning as to all of the steps which are necessary to avoid the risk. His Honour also noted that an adequate risk warning can be given, at least in some circumstances, by reference to the general kind of risk involved, absent a precise delineation of each separate obstacle or hazard which may be encountered.

Section 5M thus provides a further basis upon which to reject the plaintiff’s claim against the defendant, as another basis to negate the proposition that the defendant owed any duty of care to the plaintiff.

In her Amended Statement of Claim the plaintiff asserted that by agreement between the defendant and the plaintiff, she competed at the campdrafting event and that there are a number of terms of that agreement. The plaintiff’s case is that given it is clear there was no written agreement, all of these terms must be implied. Section 60 of the ACL implied certain other terms, and in particular that the campdrafting event would be organised managed and provided with due care and skill. A series of asserted breaches of that agreement are listed in paragraph [86] of the Amended Statement of Claim.

The ACL is set out in Schedule 2 of the CCA.

Section 60 of the ACL is in the following terms:

Section 64 of the ACL is in the following terms:

Section 275 of the ACL is in the following terms:

Further, s 139A of the CCA provides as follows:

The provisions of s 5N of the CL Act are also relevant in this context and provide as follows:

In the PWS Mr Bartley SC submitted that the contract to compete at the Ellerston event consisted of the nominations contained in the email between Courtney and Leanne Shorten in December 2010 and the distribution to Mr Tapp on 6 January 2011 of draw number 101 in the open draft event, in return for payment by him of the entry fee for the horse’s nomination.

Certain terms are implied by law into that contract. Nothing further is required to complete the contract.

It was an “informal contract”. Principles that govern the implication of terms into an informal contract were discussed by the High Court in Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24, with the majority (Brennan CJ, Dawson and Toohey JJ) at 422 setting out the following:

There were also submissions made based on what seems to be a misapprehension of the defendant’s case, that the liability waiver needs to be incorporated into the terms of any contract between the plaintiff and the ABCRA, but the defendant’s case is that the waiver is a stand-alone document, and it does not admit that there was a contract between the plaintiff and the defendant at all.

On the implication of statutory terms, Mr Bartley SC submitted that any contract between the plaintiff and the defendant “included the s 60 guarantee”, and s 64 operates to void any term of a contract purporting to exclude, restrict or modify that guarantee, so if the waiver is part of the contract, it is void. [66] Mr Bartley SC concluded that s 275 of the ACL “can revive” the waiver as part of the contract to compete, depending on the terms of the contract, and can release the defendant of the s 64 “contracting out” of the guarantee.

There is acknowledgment that s 139A “conditionally lifts” the s 64 prohibition for supply of recreational services, but not where there was significant personal injury caused by the reckless conduct of the supplier. The submissions then assert the preparation of the surface, the failure to stop the competition given Mr Stanton’s two approaches, the “bad falls”, the absence of a dedicated grounds officer, and that the justification that “the event had to go on” took precedence over the safety of the competitors and amounted to recklessness. [67]

It was submitted, persuasively, by the defendant that there was no relevant contract between the plaintiff and the ABCRA at all.

There was significant obfuscation regarding the identification of what documentation is alleged to have evidenced the creation of a contract between the plaintiff and the ABCRA. The plaintiff’s case that the contract comprised the email between Courtney and Leanne Shorten is flawed as it is not clear that the money was paid to the ABCRA by Mr Tapp on 6 January 2011 or some other organisation. Leanne Shorten's role was the Honorary Secretary of the Ellerston District Sports Club. There is no evidence indicating she had any role with the ABCRA or any agency for the ABCRA when she corresponded with Courtney.

There is a significant question mark over what was in fact being offered by Courtney’s email. Should it be seen as one overarching offer or was it several individual offers, one for each event? The email refers to horses not people: for there to be a contract there needed to be an agreement between people.

Other problems are identified. Ordinarily, offer and acceptance would involve identifiable parties agreeing upon identifiable terms. The reasons for this are obvious. The “arrangement” simply does not withstand that analysis. There is also an absence of consideration. The plaintiff paid no money herself towards her participation in the Ellerston campdraft. Mr Tapp paid for himself to participate on Xena Lena in the open event not the plaintiff; she had made no arrangement in that regard.

Mr Watson SC submitted that none of this conforms to the usual way in which consideration is treated as a fundamental element essential to the formation of a contract and it demonstrates that there was, at law, no contract.

There can be informal relationships or arrangements which are not designed to carry with them any legal consequence if the arrangements are not completely fulfilled. Here, it may well have been no intention to create a legal relationship. This should be seen as similar to circumstances where like-minded persons gather with the intention of pursuing a hobby or interest

In addressing the 17 implied terms to the asserted contract between the plaintiff and the ABCRA, no explanation was given in the PWS as to why or how any of the pleaded terms should be implied

Looking at the issue of breach of contract, if there was one, generally it seems that the plaintiff’s case in contract was first, that compliance would be had with the requirements of the ABCRA Rules, and second, that the campdraft would be stopped if conditions became dangerous. In respect of compliance with the Rules, Mr Shorten’s evidence addressed the fact that the rule required the surface be either “ploughed or soft surface”. Mr Shorten described the surface of the arena having been renovated on the Friday night “just to keep it nice and soft and competitive”. With respect to the requirement to appoint a grounds officer, that is only required once certain adverse environmental conditions have occurred, and there was no such requirement under the Rules when read properly. In any event Mr Shorten’s consultation with the identified group of people was an appropriate response to the circumstances, and was in effect compliance with the requirements of that Rule.

In terms of stopping competition if conditions became dangerous, the facts show that objectively speaking, the arena had not become dangerous.

Section 60 of the ACL cannot apply as the plaintiff has not established that there were services supplied in trade or commerce, so this is another basis to reject the plaintiff’s arguments and s 139A would operate to prevent circumvention of ss 5L, 5H and 5M of the CL Act given their effect. The arguments on “recklessness” should be rejected.

I am not satisfied that the documents and events identified by the plaintiff as comprising the contract did create any contractual relationship between the plaintiff and the ABCRA. There is no clarity that the email Courtney sent to Leanne Shorten was a nomination being made to the ABCRA as opposed to Ellerston District Sports Club. The payment made by Mr Tapp at the event has not been identified as being made to the ABCRA as opposed to the Ellerston District Sports Club, so consideration even on that basis, is not established. There is insufficient evidence to support a finding that there was a contract between the plaintiff and the defendant. This means that there is no basis to import the terms argued for by the plaintiff and no role for the implication of the statutory terms under the CCA or the ACL.

The plaintiff’s case in contract must fail.

For the sake of completeness I will deal in short compass with the submissions made by the parties in respect of the operation of the ACL, despite my finding that there was no contract.

A number of the provisions of the CL Act upon which the defendant relies are encompassed by s 275 of the ACL. In particular:

It follows for the purposes of s 275, each of those provisions of the CL Act are laws that apply to limit or exclude liability. Because of this, the plaintiff cannot rely upon the provisions of the ACL to circumvent the operation of those sections of the CL Act.

I accept the defendant’s submissions that s 64 of the ACL is not made out on the evidence.

The plaintiff’s case in contract and statutory guarantee fails.

Section 5B of the CL Act is in the following terms:

Section 5C of the CL Act is in the following terms:

Paragraph [92] of the Amended Statement of Claim sets out the standard of care that the defendant should have complied with:

In paragraph [93] separate indicia of breach were pleaded:

The relevant risk of harm was argued by the plaintiff to be that “a rider might be injured because his or her mount lost its footing because of the condition of the surface of the arena”. [68] The requirements of s 5B(1)(a)-(c) are met – foreseeability is admitted, as is the fact that the risk was not insignificant, and the precautions that could have been taken are informed by the ABCRA’s own Rules that were breached by the defendant failing to comply with them. There was a failure to properly maintain the surface, and the event should have been called off before the plaintiff’s fall.

Section 5B(2) is also satisfied. The probability of harm was high given the falls in the preceding hour and the deterioration of the arena surface. The harm was potentially likely to be serious and the precautions, stopping or fixing the ground, were easily taken.

The defendant admitted that it owed to the plaintiff a duty of care to organise, manage and provide the campdrafting event with reasonable care and skill. In response to an allegation that the risk of harm to the plaintiff was foreseeable and the particulars pleaded in respect of that, the defendant admitted that spinal injury is a known risk of falling from a horse. It also admitted that multiple horses had used the ground over the course of the day and that the plaintiff suffering an injury while competing in the campdrafting event on 8 January 2011 was foreseeable.

It did not admit that “significant rainfall” had fallen in the area in the previous few days, nor did it admit that the ground had become more dangerous as the competition progressed and nor did it admit that multiple riders had fallen during the competition due to the state of the ground or that multiple requests have been made to stop the event due to the state of the ground and the danger to horses and riders that it presented.

Breach of duty was denied. The submission was made that there was a fundamental conceptual difficulty with the plaintiff’s negligence claim because it is made solely against the ABCRA and not against the Ellerston District Sports Club. Mr Shorten or any of the other officials who may have performed tasks on the day had an affiliation with the ABCRA, but there is no systemic negligence on the part of ABCRA pleaded against it, so the case relies on acts or omissions on the part of Mr Shorten and others. There was no claim articulated for vicarious liability. None of the individuals involved were employees of the ABCRA or Ellerston District Sports Club, so a claim for vicarious liability would fail.

Four additional bases were argued by Mr Watson to be further reasons why the plaintiff’s claim in negligence must fail; first, the absence of any relevant duty of care; second, the operation of Part 1A, Div 5 of the CL Act; third, the operation of the volunteers defence; and fourth, the absence of any negligence on the part of the ABCRA.

The nature and content of the duty of care is shaped by the relationship between the plaintiff and defendant and the plaintiff is an adult participating in a vigorous sport where risks are known. It is impossible to eliminate all risks from campdrafting because they are a constituent element of the sport. Reliance was placed on the observations of Gleeson CJ, and Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, a case about rugby union injuries where it was observed that it was difficult to settle upon the content of the duty of care in circumstances such as this, and references to “unnecessary” risks are illusory. [69] Because of this, an existence of duty of care does not require all avoidable risks to be eliminated. [70]

Mr Watson SC submitted that the content of the relevant duty of care should be found to be “if a concern arose as to the continuing safety of the surface, appropriately experienced persons should conduct an inspection and decide, based on experience, whether the event should continue”. This is what was in fact done.

Mr Bartley argued in supplementary submissions, faintly in my view, that Mr Shorten was, in effect, the mind and will of the ABCRA. That submission is rejected. Quite apart from anything else, it is evident that he was one of a number of volunteers who carried out various jobs preparing the ground and on the day of 8 January 2011, and when it came to the critical question of whether to keep going, a group of four or five people made that decision.

A submission was made that a Jones v Dunkel inference should be drawn against the defendant for failing to call the announcer, Leanne Shorten, the people who prepared the arena surface on Friday morning and Friday night, the personnel who worked the grounds for three hours on Sunday morning after Emily’s fall, Jack Gallagher the judge, the five identified men who fell in the hour before Emily, the company secretary Mr Jones, and Wayne Smith and Allan Young – the decision makers who decided not to call off the event before Emily’s fall.

In response the defendant argued that as these people were volunteers, none of them were in anyone’s “camp”. The plaintiff had subpoenaed a number of them but did not call them.

I accept the defendant’s submissions on this issue. Ms Shorten, for example, was seminal to the plaintiff’s contract argument. She attended Court in response to the plaintiff’s subpoena yet was not called to give evidence. The defendant does not ask that I draw an adverse inference against the plaintiff in respect of witnesses she did not call, but it seems to me, given the respective onuses of proof that the plaintiff and the defendant had for the cases they sought to make, those witnesses identified are not in the category of people who were in one “camp” or other and there is no clarity that the people identified would have elucidated any particular matters beyond what was already available on the evidence.

I exclude from that finding the announcer, who it seems to me could have given relevant evidence for the defendant, but I have already concluded against the defendant on the announcement warning issue so any inference I would draw from the failure to call him or her goes nowhere.

I also specifically reject as incorrect the submission made [71] that the inference I should draw from the absence of these identified people is that “their evidence would be consistent with or support the case brought by the plaintiff” as the law does not support any such inference being drawn.

The question of what are reasonable precautions to take must be determined in the context of the events in issue. The plaintiff’s case, that one person complains and the event must be stopped, even against a background of other competitors falling is not an assertion that can underpin what comprises a reasonable standard of care. What was required taking reasonable care is for an informed consideration to be made as to whether it is safe to continue with the competition. Hindsight must not inform this decision.

I accept the defendant’s submission that s 5B(2)(d) also has a role to play and that is the role of sport, including risky ones, and an individual’s rights to pursue such sports. As observed by Gleeson CJ in Agar v Hyde at [15]:

I accept the defendant’s submission that s 5C(b) is activated for consideration regarding the fact that ground preparation could also have involved ploughing, if a view was reached that the ground was not “soft sand or loam”. This can be seen as “doing something a different way” which does not itself give rise to or affect liability.

Also pursuant to s 5C(c), the fact that the arena was ploughed for 3 hours on Sunday, the day after Emily’s fall, does not affect liability and does not constitute an admission of liability.

Breach of duty of care has not been established by the plaintiff.

Section 5D of the CL Act provides:

This issue can be dealt with shortly. The plaintiff asserts if the defendant had not breached its contract with her and/or not acted negligently, she would not have been injured. The defendant conceded that the case on causation is simple; if the Court finds the duty alleged and that the breach involved a failure to stop the event before Emily’s ride, then it is self-evident that the failure to stop the event was a necessary condition of the harm and the requirements of s 5D are met. If however the Court concludes that the breach of duty was limited to the preparation of the arena surface and that there should have been ploughing rather than, or in addition to, using an aerator to prepare the surface, there is no evidence that taking those steps would have led to a different outcome.

Given that I have concluded that there was no negligence on the part of the defendant, there is no identified negligence that could comprise the “necessary condition of the occurrence of the harm”.

The defendant set out in paragraph [104] of its Amended Defence that another basis for asserting it is not liable to the plaintiff is that the acts and omissions pleaded by the plaintiff were the acts and omissions of people who were first, volunteers as defined in s 60 of the CL Act, and second, that they were performing community work on a voluntary basis and not for private financial gain and which was for a charitable, philanthropic, sporting or cultural purpose.

Sections 59 and 60 of the CL Act are in the following terms:

Sections 61 and 64 of the CL Act relevantly provide:

Section 3C of the CL Act is also relevant and is in the following terms:

Mr Bartley SC submitted that s 64 of the CL Act applied because the volunteers, if found to be volunteers, were acting contrary to instructions given by the ABCRA under its Rules.

Mr Watson SC submitted that the volunteers did not act outside the Rules and that everything they did was in compliance relevantly with those Rules, and the evidence in the statements of Mr Shorten and Mr Young establish the necessary components of s 60 CL Act.

I accept that the persons identified as having carried out any relevant acts or being responsible for any relevant omissions were volunteers as defined, carrying out community work and thus are entitled to s 61 protection. I reject that any of those volunteers were acting outside the scope of activities authorised by the organisation or contrary to instructions given by the organisation and that protection extends to the ABCRA if any vicarious liability allegation is asserted, although no such allegation is evident on the pleadings.

The plaintiff’s case against the defendant fails on this further basis, even if the persons having any relevant role were in fact acting as agents of the ABCRA which is not admitted and not proved on the balance of probabilities.