On 23 October 2020 the New South Wales Court of Appeal made an interesting decision with respect to common law claims and obvious risk.
The claim related to circumstances where a girl, aged 19 at the time, had fallen off her horse whilst competing in a campdrafting event held by the Australian Bushmen’s Campdraft and Rodeo Association Ltd. The fall occurred when her horse slipped whilst cantering in the arena. There was strong evidence that the grounds of the arena had deteriorated during the course of the event and that some 700 riders had participated in the event prior to the plaintiff. The defendant argued that the risk of the fall was an obvious risk of a dangerous recreational activity.
The primary judge in this case found for the defendant on the basis that negligence was not established by the plaintiff and that the said fall was an obvious risk of a dangerous recreational activity.
The plaintiff appealed the decision of the primary judge. Although the appeal was dismissed by the majority of judges, it should be noted that McCallum JA dissented. That is, he found for the plaintiff.
The majority dismissed the appeal on the basis that a reasonable person would have made an informed decision as to whether it was safe to continue with the competition in circumstances where so many riders had previously ridden in the arena. The majority did not find that a breach of duty of care had been established by the plaintiff. Nor did they find that the exercise of reasonable care would have required the event to be stopped for ploughing of the arena or a warning issued to the plaintiff that the arena had become unsafe. The majority held that the occurrence was a manifestation of an obvious risk of a dangerous recreational activity.
McCallum J found however that ‘the risk that materialised must be characterised with enough particularity to enable the court to determine whether it was foreseeable by the organisers, whether it was capable of attracting liability and whether it would have been obvious to a reasonable person’ in the position of the plaintiff. McCallum further found that the plaintiff’s description of the risk was adequate and that the said risk would not have been obvious to a reasonable person in the plaintiff’s position.
Had the plaintiff been successful in her claim, she would have received $6,750,000 in damages. This amount was agreed to by the parties when the matter was before the primary judge.
The decision can be read in full here: https://www.caselaw.nsw.gov.au/decision/175442151938da8c1921ac72
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