HIGH COURT OF AUSTRALIA
KIEFEL CJ,
KEANE, GORDON, EDELMAN AND GLEESON JJEMILY JADE ROSE TAPP APPELLANT
AND
AUSTRALIAN BUSHMEN'S CAMPDRAFT & RODEO
ASSOCIATION LIMITED RESPONDENTTapp v Australian Bushmen's Campdraft & Rodeo Association Limited
[2022] HCA 11
Date of Hearing: 10 November 2021
Date of Judgment: 6 April 2022S63/2021
ORDER
1.Appeal allowed with costs.
2.Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 23 October 2020 and, in their place, order that:
(a)the appeal be allowed with costs; and
(b)the orders made by the Supreme Court of New South Wales on 4 November 2019 be set aside and, in their place, it be ordered that:
(i)there be verdict and judgment for the plaintiff in the agreed amount of $6,750,000; and
(ii)the defendant pay the plaintiff's costs.
On appeal from the Supreme Court of New South Wales
Representation
D F Jackson QC with D F Villa SC and J Hillier for the appellant (instructed by Commins Hendriks Solicitors)
J T Gleeson SC with D A Lloyd SC and K I H Lindeman for the respondent (instructed by RGSLAW)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited
Tort – Negligence – Breach of duty of care – Causation – Obvious risk of dangerous recreational activity – Where appellant competing in campdraft competition – Where campdrafting a dangerous recreational activity – Where appellant's horse slipped and fell causing serious injury to appellant – Where four other contestants had falls prior to appellant's fall – Where experienced contestant warned organisers about condition of arena surface – Where organisers twice refused to stop competition – Whether respondent breached duty of care – Whether breach of duty of care caused appellant's injuries – Whether harm suffered by appellant result of materialisation of obvious risk of dangerous recreational activity.
Words and phrases – "breach of duty", "causation", "dangerous recreational activity", "liability for harm", "obvious risk", "precautions against a risk of harm", "reasonable person", "significant risk of physical harm".
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5F, 5L.
KIEFEL CJ AND KEANE J. On 8 January 2011, the appellant ("Ms Tapp") was injured while competing in a campdrafting event organised by the respondent, the Australian Bushmen's Campdraft & Rodeo Association Ltd ("the Association"). Ms Tapp's horse slipped, causing Ms Tapp to fall and suffer a serious spinal injury[1]. Ms Tapp brought an action in negligence for damages against the Association. Ms Tapp's claim was dismissed by the primary judge (Lonergan J). That decision was upheld by a majority of the New South Wales Court of Appeal (Basten and Payne JJA, McCallum JA dissenting).
[1]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [6].
The appeal to this Court raises two issues: first, whether Ms Tapp had established that the Association failed to take reasonable precautions against the risk of injury (and whether such a breach was a cause of her injuries); and secondly, if liability were otherwise established, whether her injuries resulted from the materialisation of an "obvious risk" such that s 5L of the Civil Liability Act 2002 (NSW) ("the Act") operated to deny liability on the part of the Association. For the reasons that follow, the first issue must be resolved against Ms Tapp, and, on that basis, the appeal should be dismissed. It is unnecessary to consider the second issue.
It is convenient to begin with some uncontroversial factual background, drawn from the concurrent findings of fact by both the primary judge and the Court of Appeal.
Background
Campdrafting is a sport that involves a horse and rider working cattle. In a campdrafting competition, a rider on horseback rides into a "camp" containing between six and eight head of cattle and attempts to separate, or "cut out", one animal from the herd. The rider must first manoeuvre the animal two or three times back and forth across the camp to demonstrate the rider's control of the animal. The rider then calls for the gate to the "arena" to be opened. After entering the arena, the rider must "draft" the animal around two pegs in a figure eight course before finally guiding it through another gate marked by two pegs, thus completing the campdraft[2]. A campdrafting competition is judged on horsemanship and control over the animal, and must be completed within set time limits (usually between 45 and 47 seconds)[3].
[2]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [7]‑[8].
[3]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [14].
The Association is a not‑for‑profit incorporated association with overall control of the sport of campdrafting in Australia[4]. The Association organised and managed the campdrafting event at which Ms Tapp was injured[5] at Ellerston in New South Wales. Mr Shorten was the director of the Hunter Zone of the Association and was a directing mind of the Association whose acts and knowledge were properly to be attributed to the Association. He was the only member of the Association to give oral evidence[6]. His description of campdrafting, which was unchallenged in this respect, was as follows[7]:
"Campdrafting is competitive and involves riding a horse at high speed, often in a full gallop, around a course which has pegs. It involves the rider steering the horse around the course. There are a number of risks. 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." (emphasis added)
[4]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [32]‑[33].
[5]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [88]‑[89].
[6]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [38]; Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [90].
[7]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [9].
Ms Tapp began riding horses at the age of five and became involved in campdrafting events when she was aged six. She won a number of junior campdrafting competitions. From age 12, Ms Tapp and her family would travel around New South Wales to participate in campdrafting events organised by the Association, usually attending four to six events each year[8].
[8]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [13], [17]; Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [10].
Ms Tapp, with her sister and her father, nominated to compete in the Ellerston campdraft event that was to take place between Friday, 7 January 2011 and Sunday, 9 January 2011. The entry form indicated that Ms Tapp was to compete on two horses, Xena Lena and Chiquita[9].
[9]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [11]‑[12].
Ms Tapp's fall occurred on Saturday, 8 January 2011, the second day of the event. Over 700 rides had taken place on the arena surface over the first two days of the event leading up to the incident[10]. On the day of the incident, Ms Tapp had completed two rides herself in the ladies' division, her father had competed three or four times and her sister three times[11].
[10]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [87]; Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [40], [79], [176].
[11]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [40].
At around 5 pm, soon after the open draft commenced, Ms Tapp's father offered her his place in the open draft, riding on his horse, Xena Lena. Ms Tapp had ridden Xena Lena on many occasions, recreationally and at campdrafts, including at a campdrafting competition the previous weekend[12]. Ms Tapp warmed the horse up, and returned to the arena to find that the event had been delayed. Unaware of the reason for the delay, Ms Tapp waited for about five minutes before the event recommenced[13].
[12]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [13].
[13]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [14].
Ms Tapp's fall
Ms Tapp's fall occurred at around 7 pm while she was competing in the open draft[14]. Ms Tapp described the incident in a statement dated 18 December 2013 in the following terms[15]:
"I waited for the judge to announce that I could start my run. My horse and I entered the camp and we were able to cut out a beast and turn it two or three times in the camp. I then called for the cut out gates to be opened to enter the arena. There was a peg on my right and one on my left. I had moved forward and was turning to the left on the other side of the left peg. My horse went from a short trot to a canter once outside of the camp gates. I was seated in the centre of the saddle. When I rode on my horse in the camp, I felt that there was good traction but as I came to do the figure 8 area the ground felt heavy and my horse struggled to get a proper stride. My horse could not get her next stride and she went down on her front that is, she fell straight in a direct line and then we both slid onto the ground. She got up after about 15 seconds and I tried to get up and could not. I was in excruciating pain in my chest but realised that I could not move my legs."
[14]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [88]‑[89].
[15]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [28].
Ms Tapp's description of her fall in a second statement, dated 25 May 2017, was in slightly different terms[16]:
"I was about half way around the first peg on an arch when I felt my horse's front legs slide from beneath me and slide toward the right. My horse went down onto her front and both my horse and myself landed on the ground. My horse got up after about 15 seconds. I tried to get up but could not ..."
[16]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [29].
The primary judge found that nothing turned on the slightly different wording of Ms Tapp's two statements[17]. Ms Tapp's descriptions of the incident were consistent with the statements of her sister ("the horse looked like its front legs slid from under it and the horse and [Ms Tapp] fell") and her father ("the horse and [Ms Tapp] fell because the front legs of the horse slid from beneath it")[18].
[17]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [29].
[18]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [31]‑[32].
As to the crucial issue[19] – what the evidence demonstrated as to the reason Ms Tapp's horse fell – it was Ms Tapp's case that her horse fell because of deterioration in the surface of the arena leading up to her ride. Ms Tapp alleged that the Association, by allowing the event to continue in these circumstances, breached its duty to Ms Tapp to take reasonable care for her safety. The Association admitted that it owed Ms Tapp a duty of care to organise, manage and provide the campdrafting event with reasonable care and skill, but it denied that it had breached that duty[20]. Ms Tapp's amended statement of claim set out the standard of care that she alleged the Association had breached[21]:
"92.A reasonable person in the position of the Defendant would have:
92.1.Ploughed the ground at the site of the campdrafting event prior to commencement of competition on 8 January 2011;
92.2.Stopped the competition when the ground became unsafe;
92.3.Warned competitors, including the Plaintiff, that the ground at the site of the campdrafting event had become unsafe."
[19]See Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [33].
[20]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [199], [201].
[21]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [195].
In relation to the contention that the surface of the arena should have been ploughed, it is relevant to note that the Association's Rule Book contains a reference to the surface being ploughed, in the context of a general requirement that the arena surface be safe. Rule 15.5 provided[22]:
"The Arena surface MUST be safe, being either ploughed or soft surface (sand or loam) arena. ATTENTION MUST BE GIVEN TO ARENA SURFACES."
[22]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [25].
Ms Tapp did not conduct her case on the basis of a breach of the Association's Rules[23]. It can be seen, however, from Ms Tapp's contended breaches on the part of the Association that a significant issue was the evidence adduced at trial concerning the state of the surface of the arena. It is convenient now to turn to consider that evidence.
[23]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [26], [57].
Evidence concerning the surface of the arena
A hazard and risk assessment form had been completed "in the days prior to the event"[24] by Ms Shorten, who was the Secretary of the Ellerston District Sports Club[25]. That form identified a list of parameters and corresponding risks and was to be completed by indicating the "risk level" relating to each one. The "risk level" for every risk on the form was indicated to be "L", presumably intended to mean "Low". That included, relevantly, the risk of "Injury to spectators and competitors" in respect of the parameter "Ground surface". The form identified the "control" that had been implemented in respect of that risk to be: "ground maintenance carried out prior to event"[26].
[24]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [45].
[25]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [46], [62].
[26]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [48].
An incident report prepared by the Ellerston District Sports Club and dated 12 January 2011 ("the Incident Report") noted that the surface had been "renovated" at 7 am and 6 pm on Friday, 7 January 2011[27]. Mr Shorten, in his evidence, stated that on the Friday evening, although he had not received any complaints and was not aware of any problems with the surface of the arena, he and several other organising members had decided to renovate the arena "just to keep it nice and soft and competitive"[28]. The references to "renovation" of the surface were to the soil being "aerated", not "ploughed"[29].
[27]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [44], [52].
[28]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [49].
[29]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [48].
There was evidence that it had rained at Ellerston on Friday, 7 January 2011, but on Saturday, 8 January 2011, the sun was out[30]. Ms Tapp led evidence of a soil expert, although the primary judge found that his evidence was of little weight because assumptions as to rain measurements had not been established on the evidence[31]. Otherwise, the only evidence as to the condition of the surface of the arena was that of Mr Shorten.
[30]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [42].
[31]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [76], [78].
Mr Shorten competed in the campdraft on Friday, 7 January 2011, and gave the following evidence as to the state of the surface at the time[32]:
"I did not think there was anything wrong with the surface. In fact I thought it was better than previous years, as it had a better ground covering and did not appear to be as dusty. There was moisture in the topsoil, but it was not wet."
[32]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [43].
Mr Shorten competed again on Saturday, 8 January 2011, as did his wife and his two sons. He stated that he would not have competed, or allowed his family members to compete, if he thought the ground was unsafe[33]. Mr Shorten fell after completing his first ride early in the open draft. He said that he fell because he had slackened off the reins after completing the course. In his opinion, his fall had nothing to do with the surface of the arena[34].
[33]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [53].
[34]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [55].
Mr Shorten gave evidence that the arena at Ellerston had never been ploughed until it was ploughed for the first time on Sunday, 9 January 2011, the day after Ms Tapp's injury[35]. Mr Shorten said the surface was ploughed because "we didn't want another accident"[36].
[35]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [49].
[36]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [50].
Evidence of other falls
There was evidence that, besides Mr Shorten, several other riders fell off their horses on Saturday, 8 January 2011. The evidence was unclear as to the precise number of falls preceding Ms Tapp's incident. The Association, in its amended defence, admitted that there were falls at 6.14 pm (Mr Clydsdale), 6.36 pm (Mr Gillis) and 6.58 pm (Mr Piggot)[37]. The Incident Report referred to there having been seven falls over the course of the Saturday[38]. A document in the evidence described as the "Open Draft Draw" recorded four falls, all occurring in the hour leading up to Ms Tapp's incident, at 6.14 pm, 6.22 pm, 6.36 pm and 6.58 pm. All four falls were annotated on the draw as being "bad falls", which Mr Shorten explained as meaning that the rider was lucky not to be injured[39].
[37]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [70].
[38]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [70], [88].
[39]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [72], [88]‑[89]; Trial transcript, T198/21.
The primary judge made no finding as to the number of falls that occurred before Ms Tapp's incident. Her Honour noted that the only fall with respect to which there was admissible evidence as to the reason for the fall was Mr Shorten's, and he, as already noted, did not attribute the fall to a problem with the surface of the arena[40].
[40]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [72].
The primary judge accepted Ms Tapp's evidence that she had been unaware that there had been any falls before her ride in the open event[41]. There were no falls on Sunday, 9 January 2011[42].
[41]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [69].
[42]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [88].
Evidence of complaints about the surface
Prior to Ms Tapp's incident, two complaints were made by Mr Stanton, a competitor, about the surface of the arena. Mr Shorten recounted the circumstances of those complaints in his evidence in the following terms[43]:
"Around mid‑way through the open draft I was approached by John Stanton (John), a competitor. He said 'I think the open draft should be stopped. The ground is getting a bit slippery'. I said 'I don't think that's fair because people have already competed and they have their scores and if the ground is better in the morning the people who have already ridden on the ground might not make the final and that's not fair'. I had my arm in a sling at the time and he said 'look at you' and I said 'that's not fair it had nothing to do with the ground, it was my own stupid fault'.
John then rode away. I approached Jack Gallagher the judge, and said 'hold the event up, wait a minute'. I then saw Allan Young, who is the Chairman of the Members Representative Council, and is also a board director of the [Association]. I said '[John Stanton] doesn't think the ground is that good. I don't think it is too bad. What do you think?' Allan said 'the surface is okay. Competitors need to ride to the condition of the ground'. I said to Jack 'what do you think'. He said 'yes, keep it going'. I then told Jack Gallagher to resume the event. I did not think that the condition of the surface was such that the event should be cancelled.
I then returned to my truck. Before speaking to John Stanton again ... I spoke to John, and two friends who were competing, Pat Gillis and Adam Sadler. I knew that they had fallen off their horses that day. Pat Gillis said 'I left the camp and heard the judge say 22 so I tried to ride to get a good score and I rode too hard. I thought I had a chance of making the final'. Pat Gillis did not blame the arena surface. Adam Sadler said 'I am annoyed because I fell just before the gate which meant I didn't get a score'. He didn't blame the surface for his fall.
I can't say how long after the first time John Stanton approached me, but he approached me a second time. This was after Jack Callinan had come to see me to see if I was alright. John approached me and said 'I think you should do something about this event. I think the ground is unsafe'. Jack Callinan and I walked around and told Jack Gallagher to pull the draft up for the moment. We then went over and spoke with Allan Young again and Wayne Smith, also a MRC board member. One or both of them said 'the riders should ride to the conditions'. Allan said 'I think the arena surface is still alright'.
I considered the condition of the ground. I had noticed that the surface was not wet, it was moist in parts. Dust was still flowing up."
Clearly enough, Mr Shorten viewed the surface in order to assess its condition. It is reasonably to be inferred that the other persons with whom he spoke on that topic likewise did so.
[43]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [174].
It can be seen that, on two occasions, competition was suspended while the members of the Association responsible for the conduct of the competition considered Mr Stanton's suggestion that the event be cancelled. It can also be seen that, while Mr Stanton urged that course because the "ground [was] unsafe", that view was not shared by other participants who were in a position to make a responsible judgment. To the contrary, the prevailing view was that competitors should "ride to the conditions". In this regard, each of Mr Shorten, Mr Young and Mr Smith had competed on the arena surface that day[44]. Mr Gallagher was a judge of the campdrafting event[45] and Mr Callinan was the President of the Ellerston District Sports Club[46]. Neither Mr Gillis nor Mr Sadler suggested that the state of the surface of the arena had anything to do with their falls. It may also be noted that there was evidence that Mr Young himself competed again on the arena surface after these discussions and immediately before Ms Tapp's injury[47].
[44]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [43].
[45]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [42].
[46]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [62].
[47]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [43].
It is also necessary to say something about the evidence of what Mr Stanton said to Mr Shorten. Mr Shorten's evidence about this stands as evidence of the fact of Mr Stanton's complaints and no more. Mr Stanton was not called by Ms Tapp to give evidence of his opinion and the basis for it. In these circumstances, the evidence of his complaints is not due any weight as evidence of the dangerous state of the surface of the arena, nor is there any basis to prefer him as an expert over Mr Shorten and the other four persons whose contrary views were expressed.
Mr Stanton did not advise Mr Shorten what was wrong with the surface. If Mr Stanton had expressed an opinion about that subject, no doubt it would have been necessary for Ms Tapp to call him to support that opinion if the primary judge were to be asked to act upon it. Absent that key aspect of the evidence in her case, it was not possible to put to Mr Shorten what form the deterioration in the surface took, for comment. Mr Stanton did not say to Mr Shorten that the surface should be ploughed. The highest Mr Shorten's evidence in this regard can be put is that Mr Stanton suggested that the competition be called off for the night, presumably to recommence the following day.
Mr Shorten, Mr Young and Mr Smith agreed that an announcement would be made over the loudspeaker that any competitors who wished to withdraw from the event could do so and receive a full refund[48]. The primary judge accepted the evidence of Ms Tapp and her father that neither heard the announcement at that time; in particular, the primary judge accepted that Ms Tapp was busy focussing on preparing for her ride[49]. It should be emphasised here that it was no part of Ms Tapp's case of negligence in this Court that the Association should have done more to bring the announcement to her attention.
[48]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [56]. See also [57], [60], [64]‑[65].
[49]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [66].
The reasons of the primary judge
Before the primary judge, only liability was in issue, the parties having agreed the quantum of damages for Ms Tapp's injuries in the sum of $6,750,000[50].
[50]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [6].
The primary judge began by considering the application of s 5L of the Act, adopting[51] the approach adverted to by Leeming JA in Goode v Angland[52] that, since s 5L is a "liability‑defeating rule", it may be appropriate to consider the defence at the outset. The primary judge concluded that the Association was not liable for Ms Tapp's injuries on the basis that her injuries were the materialisation of an obvious risk of a dangerous recreational activity within the meaning of that section[53]. Additionally and alternatively, her Honour held that even if the defence in s 5L were not made out, Ms Tapp had not shown that the Association had breached its duty of care to Ms Tapp[54].
[51]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [99].
[52](2017) 96 NSWLR 503 at 540‑541 [185].
[53]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [133].
[54]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [215].
Relevantly for present purposes, the primary judge rejected Ms Tapp's submission that the taking of reasonable care required the Association to stop the event after receiving the complaints from Mr Stanton; rather, what was required was the making of an informed decision about whether it was safe to continue with the competition[55]. Her Honour found that Ms Tapp failed to demonstrate that the Association breached this standard of care[56]. In this regard, the primary judge emphasised that campdrafting was a sport that was "known to entail a risk of falling", the activity being one that involved a competitor "riding at speed on a horse and corralling a beast, in a particular required configuration, in a relatively confined space"[57].
[55]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [211].
[56]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [215].
[57]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [145]. See also [212].
The reasons of the Court of Appeal
In the Court of Appeal, Payne JA (with whom Basten JA agreed) found no error in the primary judge's conclusion that Ms Tapp had failed to demonstrate that the Association breached its duty to Ms Tapp, or that any such breach was a cause of her fall[58].
[58]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [55].
Importantly, Payne JA held that Ms Tapp had failed to prove the cause of her horse's legs sliding out from under it[59]. In particular, his Honour concluded that Ms Tapp could not demonstrate that her horse fell because of deterioration in the surface of the arena, as distinct from some other cause[60]:
"There were on the evidence a number of reasons why campdrafting carries a risk of a horse slipping and falling. Those reasons include the speed the horse is travelling, the complexity of the manoeuvre being made and the qualities of the horse. Mr Shorten's evidence that the risks of campdrafting include a risk that the 'horse could fall by losing its footing' was not challenged. [Ms Tapp] did not prove that [her] horse slipped because of any deterioration in the surface of the arena."
[59]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [33].
[60]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [38]. See also [33], [37].
Payne JA observed that, insofar as the case for Ms Tapp assumed that it had been established that "a cause of [Ms Tapp's] horse falling was the deterioration in the condition of the surface of the arena which made the arena 'slippery'"[61]:
"The primary judge made no such finding. It bears emphasis ... that at the trial, and on the appeal, [Ms Tapp] never clearly identified the way in which it was alleged the surface had deteriorated: (i) that it was hard and compacted when it should have been soft, (ii) that it was rough and broken up when it should have been smooth, or (iii) that it was slippery in some other way (for example by reason of rainfall during the day)."
[61]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [24].
It was also noted that Ms Tapp's case relied heavily on the number of falls that had occurred that day, without evidence as to the particular circumstances of any of those falls or as to any causal connection between those falls and the supposed deterioration in the surface of the arena[62]. The other matters relied upon by Ms Tapp as evidence of deterioration in the surface of the arena – including the circumstance that Ms Tapp's fall occurred after the complaints made by Mr Stanton, and the fact that the ground was ploughed for three hours the day after the incident – were dismissed as the product of hindsight reasoning[63]. Payne JA saw no basis to differ from the conclusion of the primary judge that it had not been shown that the surface had deteriorated to such an extent that reasonable care for competitors required the event to be stopped, the surface to be ploughed and/or the competitors to be warned. Payne JA agreed with the primary judge that what was required in taking reasonable care was for the Association to make an informed decision as to whether it was safe to continue with the competition[64].
[62]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [56]‑[58]. See also [39].
[63]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [50]‑[53].
[64]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [54].
Basten JA dismissed the appeal for the same reasons as Payne JA[65]. Basten JA observed that Ms Tapp's claim in negligence failed for the fundamental reason that she had failed to establish why her horse fell, and whether this was due to deterioration in the surface or some other cause[66].
[65]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [1], [3].
[66]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [2].
On the other hand, McCallum JA thought Ms Tapp's case was "strong" and had no difficulty drawing the inference that Ms Tapp's horse fell because of deterioration in the surface of the arena[67]. Her Honour provided four reasons for reaching that conclusion.
[67]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [171], [182].
First, her Honour emphasised that the Association's Rules required that the arena surface be safe – either ploughed or soft surface (sand or loam) – and that the Ellerston surface was neither[68].
[68]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [172]‑[173].
Secondly, her Honour thought it significant that two complaints had been made about the state of the surface, in response to which the representatives of the Association did not conclude that the surface complied with r 15.5, or was safe, but rather that it was "[not] too bad", "okay" and "still alright"[69]. In this regard, her Honour considered that the primary motivation for the decision to continue the competition did not appear to be a positive satisfaction that the surface was safe, but rather that the competition should be continued in the interests of fairness to competitors who had already ridden[70].
[69]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [174]‑[175].
[70]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [175].
Thirdly, McCallum JA said that the offer that competitors could withdraw from the event for a refund was "the clearest recognition" that there was some force in the concerns as to the state of the surface[71].
[71]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [176].
Finally, McCallum JA relied upon the following answer given by Mr Shorten in cross‑examination[72]:
"Q. Do you agree with me that the fact that a disc plough was used demonstrates how bad the condition was of the ground at 6.45 pm on Saturday, 8 January 2011?
A. Yes, I would."
McCallum JA considered that, by this answer, "Mr Shorten as good as conceded that the competition should have been stopped before Ms Tapp competed because the surface was unsafe"[73].
[72]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [50].
[73]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [177].
McCallum JA held that the primary judge ought to have found that the Association breached its duty by failing to suspend the competition at the very latest when the announcement was made, but probably earlier[74].
[74]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [177].
The cause of the fall
It is convenient to begin by addressing the principal flaw in Ms Tapp's case before the Court of Appeal and in this Court: that Ms Tapp failed to prove the reason why her horse fell. As Payne JA observed[75]:
"There is no doubt that it was established that immediately prior to [Ms Tapp's] horse falling its legs slid. What was left unproven was the reason for that slide."
[75]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [33].
It bears repeating that Ms Tapp bore the onus of proving any fact relevant to the issue of causation[76]. In this Court, Ms Tapp's submissions proceeded by way of a broad appeal to what might be said to be "common sense"[77]. Those submissions emphasised: Ms Tapp's unchallenged evidence that her horse had "slipped"; that Ms Tapp's fall had been preceded by several "bad falls" after two days of competition in which there had been some 700 rides over the surface of the arena; that Mr Shorten on behalf of the Association conceded in cross‑examination that the surface of the arena was "dangerous"; and that when competition resumed on the Sunday, after the surface of the arena had been ploughed, no further falls occurred. In coming to grips with these contentions, it is necessary to make five preliminary observations.
[76]See s 5E of the Act.
[77]As to the reasons why this notion should not be used in connection with causation, see Stapleton, "Law, Causation and Common Sense" (1988) 8 Oxford Journal of Legal Studies 111 at 123‑124; Mason, "Fault, Causation and Responsibility: Is Tort Law Just an Instrument of Corrective Justice?" (2000) 19 Australian Bar Review 201 at 210; Stapleton, "Factual Causation" (2010) 38 Federal Law Review 467 at 469‑470.
First, this Court has recognised that the Act does not apply a test of "common sense"[78].
[78]Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 440 [43].
Secondly, the argument for Ms Tapp that, as a matter of common sense, this Court should find – as neither Court below had found – that Ms Tapp's horse slipped because of deterioration in the surface of the arena over the course of the event is an attempt to make a virtue of necessity. At trial, Ms Tapp's case included evidence from two expert witnesses by which it was sought to prove that the surface of the arena was unsafe for campdrafting because of the presence of "standing water" on the surface of the arena as a result of earlier rainfall. The evidence of both these experts was rejected by the primary judge, and no member of the Court of Appeal took a different view[79]. It is not necessary to describe that expert evidence in any detail here because no reliance was placed on it in this Court. The point is that, at trial, Ms Tapp had sought to establish specific reasons for inferring that the surface of the arena had deteriorated to the point where it was unsafe, and this attempt failed.
[79]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [74]‑[98]; Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [27], [44]‑[46].
The failure of an attempt to establish by expert evidence specific identified defects in the surface of the arena does not negative, as a matter of strict logic, the possibility that there was some other, unidentified defect in the surface of the arena that contributed to Ms Tapp's fall. Nevertheless, the failure of the expert evidence to identify the cause of Ms Tapp's fall is, at the very least, good reason for a sceptical response to an invitation to judges – persons with no relevant expertise or experience – to infer, as a matter of common sense, that her fall was caused by an unidentified defect in the surface of the arena for which the Association was responsible, rather than by one or more of the manifold risks involved in competitive campdrafting.
Thirdly, in considering a "common sense" submission as to the cause of a horse slipping in the course of a campdrafting event, one must not lose sight of the intrinsic risks associated with that kind of competitive recreational activity. The risk of a horse slipping as a result of losing its footing during a manoeuvre performed at speed is part and parcel of competitive campdrafting on even the most benign of surfaces. This risk may be elevated by a deterioration in the surface, just as it may be elevated by the rider pressing hard to secure a competitive advantage, or by the unpredictability of the reactions of horse, cattle and rider as they interact with each other. That being so, in approaching the question whether any particular fall occurred because of deterioration in the quality of the surface of the arena to the point where the surface became unsafe, one cannot speculate that deterioration in the surface is a more likely explanation than the materialisation of one or more of the other risks that are intrinsic to this form of recreation. In Betts v Whittingslowe[80], Dixon J found that the defendant's breach of duty, coupled with the occurrence of an accident of the kind that might thereby be caused, was enough to justify an inference that the breach caused the accident. His Honour was careful to explain, however, that that inference could be drawn because "the facts warrant no other inference inconsistent with liability on the part of the defendant".
[80](1945) 71 CLR 637 at 649.
Fourthly, the suggestion that the occurrence of a number of falls shortly before Ms Tapp's fall should have indicated to the Association that there was plainly a problem with the surface of the arena sits uneasily with the circumstance that none of the information on which the Association's decision‑makers acted suggested that deterioration in the surface was the cause of those falls. To the contrary, the information available to the Association at the time the competition was suspended included statements from Mr Shorten and Mr Gillis, each of whom blamed his own management of his horse for his fall.
Fifthly, the decision of the Association, after Ms Tapp's fall, to suspend competition and to plough the surface of the arena before competition resumed on the Sunday cannot be relied upon to inform either the Association's appreciation at the time of her fall of the extent of any deterioration in the surface, or the reasonableness of the precautions Ms Tapp contends should have been taken. Nor can the circumstance that no falls occurred on the day following Ms Tapp's fall, after the surface had been ploughed, be relied upon to overcome the primary judge's findings as to the factual deficit in the case advanced for Ms Tapp. The dangerous lure of hindsight reasoning was recognised and addressed in s 5C(c) of the Act:
"In proceedings relating to liability for negligence:
...
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
Quite apart from the operation of s 5C(c) of the Act to prohibit the use of hindsight to establish negligence on the part of the Association, it is readily understandable that riders competing on the Sunday would have been especially circumspect in their riding in reaction to Ms Tapp's injury on the Saturday evening.
The question whether the case for Ms Tapp as to the cause of her fall was made out cannot now be approached in this Court as if it were a matter of first impression for this Court as a tribunal of fact unconstrained by the concurrent findings of fact in the Courts below. Contrary to the view of McCallum JA, the Court of Appeal had no sufficient basis for setting aside the findings of the primary judge[81].
[81]Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686‑687 [43]; 331 ALR 550 at 558‑559.
The Association's concession as to causation
In this Court, in addition to her appeals to a common sense view of the circumstances, Ms Tapp submitted that she was not required to prove the specific mechanism by which the surface had deteriorated, causing it to become unsafe; instead, all she was required to prove was that the surface had deteriorated to such a degree that the Association, acting reasonably, ought to have suspended the competition. This position was said to follow from the Association's concession at trial[82] that causation would be established if the relevant breach was the Association's failure to stop the competition, because if the competition had been stopped, the incident would not have happened.
[82]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [217].
The concession of the Association at trial does not support Ms Tapp's case as it was presented in this Court. Ms Tapp's case at trial – in response to which the Association made that concession – involved the contention that the Association breached its duty of care by failing, inter alia, to stop the competition[83]. However, Ms Tapp's case before the Court of Appeal, and in this Court, was one of a failure to suspend the competition to allow the surface of the arena to be ploughed.
[83]See [13] above.
That "slide" in the formulation of Ms Tapp's case is significant. If the breach of duty were held to consist of a failure to permanently stop the competition, then it might be said that a causal connection between a failure to stop the competition and Ms Tapp's injury could be established simply on the basis that, absent the breach, Ms Tapp would not have been riding at all. But if the breach of duty were held to consist of a failure to suspend competition to allow the surface to be remediated by ploughing prior to the competition recommencing, the establishment of a causal connection between breach of duty and Ms Tapp's injury would be more complicated. In the counterfactual where the competition had been suspended, Ms Tapp would still have competed, albeit at a different time. Even assuming that reasonable precautions would have entailed remediation of the surface before the competition resumed, it cannot be assumed that a different outcome would have ensued. Because the cause of Ms Tapp's fall was not identified, it cannot be assumed that this exigency would have been obviated by ploughing or other remediation of the surface.
Reasonable precautions
Quite apart from the evidentiary difficulties in Ms Tapp's case as regards causation, Ms Tapp was unable to demonstrate that the Association ought reasonably to have taken the precaution of suspending the competition and ploughing the surface before allowing the event to continue.
The question whether the Association breached its duty to Ms Tapp because it failed to suspend competition in order to plough the surface of the arena is a question that cannot be approached on the basis that the only relevant consideration was to ensure the safety of competitors. If that were the only consideration, no campdrafting events would be permitted, because the risk of serious injury is intrinsic to the sport. The notion of reasonable precautions necessarily contemplates the balancing of countervailing considerations[84]. In that vein, the decision of the Association fell to be made in a context in which competitors wanted to compete and were known to want to compete in their chosen form of recreation.
[84]See s 5B(2) of the Act.
In Agar v Hyde[85], Gleeson CJ said:
"People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports. ... Sport commonly involves competition ... A sporting contest might involve body contact where physical injury is an obvious risk, or the undertaking by individual competitors of efforts which test the limits of their capabilities in circumstances where failure is likely to result in physical harm. Rules are of the essence of sporting competition. Individuals, or teams, wishing to compete must agree, personally or through membership of some form of association, upon the rules which will govern their competition. ... Making and changing the rules may require giving weight to many considerations, some conflicting. ... [T]hey may include considerations relating to the safety of participants in the sport."
[85](2000) 201 CLR 552 at 561‑562 [15].
In the context of the organisation and management of a campdrafting competition, a decision to allow the event to continue is not shown to be "wrong", much less negligently so, by pointing to the occurrence of a catastrophic injury without taking into account the willingness, indeed the eagerness, of competitors to engage in what is, on any view, a form of recreation fraught with risks of physical injury. In this context, and contrary to the approach of McCallum JA, one may recognise that competitors have varying appetites for risk, without concluding that an event is unsafe for all its participants. This notion may be seen in the circumstance that competitors were offered the opportunity to withdraw from the event for a full refund based on their own assessment of the risk level.
It must be acknowledged that, in the present case, it is difficult, given the tragic injury suffered by Ms Tapp, not to focus upon the circumstances of that tragedy. But one must not judge the wisdom of the Association's decision to continue the competition with the benefit of hindsight. Hindsight has the power to make an accidental injury appear both foreseeable and avoidable by the taking of precautions that now seem obvious. Hindsight may also cause one to focus on the particular risk of injury that ultimately materialised, thus losing sight of the potentially manifold risks intrinsic to the activity engaged in.
As Gleeson CJ observed in Rosenberg v Percival[86], in litigation the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated and harm has resulted. The particular risk becomes the focus of attention. This focus on how the particular injury happened may be misleading in attempting to determine issues of duty and its breach[87]. In Rosenberg v Percival, Gleeson CJ went on to refer to the danger, identified in judgments of this Court[88], which is posed by hindsight reasoning – the failure to take account of the context in which a risk was to be evaluated at the time the evaluation was made. Whether or not reasonable care was exercised in striking the balance between taking care for the safety of participants and allowing the competition to continue must be determined by reference to the knowledge of the circumstances available to those who made the decision for the Association when it was made.
[86](2001) 205 CLR 434 at 441‑442 [16].
[87]New South Wales v Fahy (2007) 232 CLR 486 at 505 [57].
[88]Jones v Bartlett (2000) 205 CLR 166 at 176 [19]; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 263 [17], 291‑292 [109].
Moreover, and as relevant to this case, ascertaining the risk which in fact eventuated requires determination of the cause of the injury. Here, as the majority of the Court of Appeal correctly held, it could not be determined as a fact that some kind of deterioration to the surface was the risk which eventuated. It could not be a correct approach, as the case for Ms Tapp proceeded, to assume what needed to be determined as a fact, and then to proceed to determine whether a duty was owed with respect to it and what could have been done to avoid it.
That hindsight is apt powerfully to distort one's appreciation of the extent and acceptability of a risk is poignantly illustrated in this case. Ms Tapp's father, himself an experienced campdrafter, offered Ms Tapp his place, and the use of his horse, in the open draft during which she was ultimately injured. Both he and Ms Tapp's sister had ridden the arena earlier that day, and there is no suggestion that either held any concerns that the arena was unsafe.
Hindsight is apt also to distort one's perception of what precautions are reasonable. While, in hindsight, it seems obvious that the prudent course may have been to suspend competition for the Saturday evening, the Association's decision-makers did not have the benefit of hindsight, and they were making their decision in a context in which their expectation was that competitors wished to continue with the competition and their concern was to ensure fairness to all competitors. Moreover, and importantly, the circumstance that the Association chose to plough the surface after Ms Tapp's catastrophic injury says nothing about whether the Association, even if its decision‑makers had decided to suspend competition on the Saturday evening before Ms Tapp's run, would have ploughed the arena before resuming competition on the Sunday. Certainly, Mr Stanton had not suggested that course, nor was the possibility of ploughing the arena raised in the discussion that took place thereafter.
If one has regard only to what was known to the Association's decision‑makers before Ms Tapp's injury, no sufficient reason appears to set aside the concurrent findings of the primary judge and the Court of Appeal. It may be accepted that there were reasons to consider whether continuing the competition might expose riders to an unacceptably increased risk of a fall by reason of some deterioration in the state of the surface of the arena; but there were also reasons to think that any increase in risk from deterioration in the surface of the arena was no more than could be dealt with by competitors "riding to the conditions".
A decision reflecting reasonable care for competitors required an assessment whether the level of risk posed by the state of the surface required the competition to be suspended. The decision made by the Association to continue the competition, viewed in the context in which it was made, does not appear to be unreasonable. It was also far from apparent to the Association's decision‑makers that it was the quality of the surface of the arena that was to blame for the falls which preceded Ms Tapp's fall, rather than any of the other manifold possibilities intrinsic to the dangerous activity in which Ms Tapp, her father, her sister, members of Mr Shorten's family and Mr Young were all willing to engage. The absence of evidence at trial from any of the other riders who fell as to their experience that the deteriorated surface caused their falls is emphatic confirmation that Ms Tapp's case was bound to fail for want of proof that deterioration in the surface caused her fall.
The role of an appellate court
As Payne JA noted in the Court of Appeal[89], the primary judge did not find that "a cause of [Ms Tapp's] horse falling was the deterioration in the condition of the surface of the arena which made the arena 'slippery'". That being so, the case of negligence advanced by Ms Tapp could not succeed. It was no part of the function of the Court of Appeal, as it is emphatically no part of the function of this Court, to reformulate the case a party seeks to make. The majority of the Court of Appeal, rightly, proceeded in conformity with the limits of their role in the administration of justice, both in refraining from reformulating the case sought to be made for Ms Tapp, and in recognising that there was no proper basis upon which the appellate court might make a finding as to the cause of Ms Tapp's fall which the primary judge was not able to make on the evidence.
[89]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [24].
In the Court of Appeal, McCallum JA emphasised, as a significant indication that the Association had failed to take reasonable precautions, that the Association had not complied with the terms of r 15.5 concerning the composition of the surface of the arena. But Ms Tapp's case was not put on the footing that the Association was negligent because the surface of the arena had not been treated as required by r 15.5. There was little admissible evidence at trial as to the composition of the surface of the arena and no specific findings as to whether the terms of r 15.5 had been breached[90]. Nor was there any complaint about the absence of such findings. To seek to build a case on the footing that the surface of the arena should have been ploughed before competition began in accordance with r 15.5, and that the failure on the part of the Association to do so created an unreasonably elevated risk of a fall that came to pass as a cause of Ms Tapp's fall, would confront the difficulty that some 700 rides took place without incident until shortly before Ms Tapp's injury.
[90]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [26]‑[27].
In this Court, Ms Tapp argued that Payne JA erred in discounting as hindsight evidence certain concessions made by Mr Shorten in cross‑examination. Had these concessions been given appropriate weight, Ms Tapp submitted, breach would have been established as held by McCallum JA.
The concessions relied upon by Ms Tapp in this regard included Mr Shorten's statements that:
(a)it was "practically unprecedented" to have seven falls occur over the course of one event, let alone on a single day[91];
(b)a "bad fall" was "a signal that the surface needs attention to prevent another fall"[92];
(c)at the time of Ms Tapp's fall, the arena surface had been "identified by [himself] and others by that stage as being dangerous"[93];
(d)the surface was ploughed after Ms Tapp's fall "because we thought at the time that would be the reason for no more falls"[94];
(e)the circumstance that the surface was ploughed after Ms Tapp's fall "demonstrates how bad the condition was of the ground" at the time of the incident[95]; and
(f)the event was allowed to continue following the complaints because "the event had to go on" and this "took precedence over safety"[96].
[91]Trial transcript, T168/11-14.
[92]Trial transcript, T165/9-12.
[93]Trial transcript, T190/8-10.
[94]Trial transcript, T172/16-21.
[95]Trial transcript, T172/23-26.
[96]Trial transcript, T198/27-33.
A consideration of each of these concessions in turn reveals that the primary judge, and the majority of the Court of Appeal, made no error in their treatment of this evidence. It can be seen that concession (a) rested on the unproven assumption that seven falls had occurred. In addition, concession (b) cannot be considered in isolation from the context that Mr Shorten and others did consider the safety of the surface before deciding to proceed. Concession (c) must be understood fairly as reflecting Mr Shorten's acknowledgement of what he had been told by Mr Stanton rather than a statement of his own considered opinion, bearing in mind that the question to which Mr Shorten responded referred to the identification of the state of the surface by himself "and others", a reference apt to encompass Mr Stanton. Concessions (c) to (f), and in particular (d) and (e), reflected a degree of hindsight. As to the ploughing of the surface the day after the incident, the cautious approach taken in light of Ms Tapp's fall demonstrated nothing as to whether, prior to the incident, a reasonable person with the knowledge of the Association's decision‑makers would have concluded that the competition ought to be suspended and the ground ploughed.
It is important to appreciate that the primary judge had the advantages noted by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy[97]:
"On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'[98]. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record[99]. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share[100]."
[97](2003) 214 CLR 118 at 125‑126 [23].
[98]Dearman v Dearman (1908) 7 CLR 549 at 561. ...
[99]Dearman v Dearman (1908) 7 CLR 549 at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278‑281.
[100]Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637 ... See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.
The primary judge was best placed to assess the significance of Mr Shorten's concessions, and in particular to gauge the extent to which his evidence is fairly to be understood as his response, in hindsight, to the tragic injury suffered by Ms Tapp. In this regard, her Honour was in the best position to assess the concessions, so‑called, given by Mr Shorten by reference to the way that they were put to him in cross‑examination, including as to the choices given to him by way of answer, and in light of his earlier evidence as to what had in fact occurred on the evening in question and what he had thought and done then. The concessions were to a large extent inconsistent with that evidence. That being so, it was properly a matter for the primary judge, who saw and heard Mr Shorten give evidence, to determine which aspects of his evidence to accept or reject, not an appellate court.
The majority of the Court of Appeal, recognising the peculiar advantages of the primary judge in this regard, but having conducted their own review of the evidence, arrived at the same conclusion as the primary judge that the Association's decision to allow the event to proceed was not an unreasonable failure to take care for the safety of those who wished to take part in the event.
In addition, there is little to be gained from a consideration of selective extracts of Mr Shorten's evidence divorced from other aspects of the evidence before the primary judge. The evidence as to Mr Shorten's supposed concessions must be understood in light of the evidence weighing against such a conclusion. That included the following:
(a)Ms Tapp, her father and her sister had each competed earlier on the day of the incident, and none raised any concern about the surface;
(b)Ms Tapp's father offered Ms Tapp his spot in the open draft, which he would not have done if he had had concerns as to the safety of the surface;
(c)Mr Shorten's wife and sons competed earlier on the day of the incident, and the primary judge accepted Mr Shorten's evidence that he would not have let them compete if he had perceived any danger;
(d)the decision that the surface was sufficiently safe for the competition to continue was made by a group of people who were experienced in organising and conducting campdrafting events, most of whom had either competed themselves earlier on the day of the incident (Mr Shorten, Mr Young and Mr Smith) or judged the competition, thereby being in a position to observe other riders (Mr Gallagher); and
(e)no competitor other than Mr Stanton raised any concern as to the safety of the surface, notwithstanding that there had been over 700 rides prior to Ms Tapp's fall.
Thirdly, as Mr Shorten said, and consistently with Rule 5, decisions concerning the quality of the surface and how the surface is maintained were made by the Committee or MRC. A reasonable person in the position of Ms Tapp, who was preparing herself and her horse to compete in the hour before being called, would have relied upon the Committee or MRC for that assessment. Further, although Ms Tapp was experienced in campdrafting, as a 19‑year‑old she was still a teenager and, as McCallum JA correctly observed, "teenagers are likely to be less attuned to risks that would be obvious to more experienced, settled members of the community"[177]. Ms Tapp's age thus reinforces the point that a reasonable person in her position would be unlikely to pause, while waiting for her run in a high‑turnover event, to reflect upon the appearance of the surface of the arena. A reasonable person in her position would, if they turned their mind to the issue at all, likely assume the Committee or MRC had made an appropriate decision about the surface.
[177]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 at [185].
During the time before Ms Tapp's event, she became aware that the event was delayed but no announcement was made about the reason for the delay and no one told Ms Tapp about the reason. The trial judge found that "no specific oral warning was given to [Ms Tapp] and no suggestion was made, by announcement or otherwise, that competitors 'rode at their own risk'"[178]. All that had been announced was that there was an offer of a refund of the entry fee if riders chose not to compete, but Ms Tapp did not hear the announcement and there was no suggestion that the announcement was loud enough that a reasonable person in her position, while warming up her horse in the separate arena, would have heard it. In any event, a reasonable person in Ms Tapp's position would have known, as she knew, that events were held up for other reasons such as "an injured beast ... coming out of the yard".
[178]Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 at [65].
Conclusion
The appeal should be allowed with costs. The orders of the Court of Appeal of the Supreme Court of New South Wales made on 23 October 2020 should be set aside and, in their place, it should be ordered that:
(a)the appeal be allowed with costs; and
(b)the orders made by the Supreme Court of New South Wales on 4 November 2019 be set aside and, in their place, it be ordered that:
(i)there be verdict and judgment for the plaintiff in the agreed amount of $6,750,000; and
(ii)the defendant pay the plaintiff's costs.