Paralympian Emily Tapp (represented by Commins Hendriks), wins $6.75m payout after serious spinal injury that occurred during a campdrafting event in 2011. It is a major win for Ms Tapp, after the High Court has found the event organisers knew there was a risk of catastrophic injury.
John Potter of Commins Hendriks represented Ms Emily Tapp in the High Court which today allowed the appeal against the judgment in the NSW Court of Appeal in the matter of Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd  HCA 11. The majority decision clarifies previously ambiguous precedent in relation to the interpretation and application of the statutory defence available under s 5L of the Civil Liability Act 2002.
Commins Hendriks represented Ms Tapp, who was an able horse rider, experienced in campdrafting. On 8 January 2011 Ms Tapp competed in a multi-day campdrafting event organized by the Respondent, the Australian Bushmen’s Campdraft & Rodeo Association Limited. During the course of the event, the surface of the competition arena deteriorated, with four other competitors suffering “bad falls”. Notwithstanding a suggestion from an experienced rider that the competition be abandoned due to the slippery and “unsafe” surface, the Respondent decided to continue the competition. Shortly thereafter Ms Tapp’s horse slipped and fell during her ride, and as a consequence she suffered a serious spinal injury.
The Civil Liabilty Act 2002 provides for a statutory defence against a claim for personal injury in circumstances where the injury occurs as a result of the materialization of an obvious risk of a dangerous recreational activity (s 5L).
In the Supreme Court of NSW, Lonergan J, held that the there was no breach of duty of care by the Respondent, and that if there were a breach it was not the cause of Ms Tapp’s injuries – rather that the injury or harm was a materialization of an obvious risk of a dangerous recreational activity, being broadly the risk of falling from a horse in the course of riding in a campdraft competition.
The Court of Appeal upheld the Supreme Court Judgment.
The majority in the High Court held that the Respondent did breach it’s duty of care to Ms Tapp in failing to stop the event and that that breach of it’s duty of care cause the injury to Ms Tapp. The majority found that the injuries sustained by Ms Tapp were not the result of the materialization of an obvious risk of a dangerous recreational activity, and therefore the Respondent was unable to rely on the statutory defence under s 5L of the Civil Liability Act 2002.
Importantly, the majority held that the correct description of the risk applied in these circumstances was “the substantially elevated risk of physical injury by falling from a horse that slipped by reason of the deterioration of the surface of the arena” Which would not have been obvious to a competitor in the position of Ms Tapp, and not the general risk of falling and being injured.