Inclement weather not the only conditions that pose safety risks in sport

On Friday night, Manly-Warringah’s Karl Lawton was sent from the field after executing a dangerous lifting tackle on Cameron Murray of South Sydney in the NRL match at Gosford. It wasn’t a decision that pleased everyone. Phil Gould, a scarred veteran of the days when “the biff” was tolerated during the “softening-up period”, grumbled that “if that’s your product, I give up.”

“Product”, presumably, is only considered attractive if it risks causing a certain number of spinal injuries each season. Gould is revered as a kind of Rugby League Yoda, but he could usefully take some time out to read a recent decision of the High Court, which has significant implications for sporting organisations, emphasising that sporting bodies have a demanding duty to ensure that their competitions are conducted under safe conditions.

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11 was a case that concerned the sport of campdrafting – which involves, more or less, a rider on horseback separating cattle from a herd, on a confined course and within a limited time. The appellant, Emily Tapp, was competing in an event at Ellerston in 2011 when both she and her horse fell, and Ms Tapp suffered serious injuries. She sued the organiser of the event (the “Association”) in the Supreme Court, and lost. An appeal to the NSW Court of Appeal also failed.

Ms Tapp’s case was that her horse had fallen because the surface of the arena on which the competition was held had become unsafe, and that the Association owed her a duty of care to ensure that the competition was staged on a safe surface. At the first hearing, the judge found that Ms Tapp’s claim failed because the Association was entitled to rely upon section 5L of the Civil Liabilities Act. That section provides that provides that a defendant is not liable for harm a person suffers as “the materialisation of an obvious risk of a dangerous recreational activity engaged in” by the person who has been harmed. Competitors in campdrafting ride on horseback at high speed: the trial judge found that, in these circumstances, falls are an obvious risk. In the Court of Appeal, Payne JA agreed with the trial judge, and Basten JA added that Ms Tapp had failed to prove that her fall was the result of a deterioration in the playing surface.

But, in the High Court, the majority took a different view. Gordon J, Edelman J and Gleeson J found that the Association was not entitled to rely on section 5L. Essentially, this was because the trial judge and the majority of the Court of Appeal had defined the risk too broadly – the relevant risk, in their view, was not that someone could fall (which may be obvious, as falls are not unknown in campdrafting) but whether there was a risk on this occasion that falls could occur because of defects in the surface. That more specific risk, the majority held, was not “obvious” to Ms Tapp, because she had not seen other riders fall, while other members of her family had ridden earlier in the day without incident. She therefore assumed, reasonably enough, that the event was continuing because it was safe.

As a matter of fact, however, there had been four falls earlier in the day, and officials of the Association had considered whether the competition should be suspended while the surface was repaired. The Association therefore had a duty of care to ensure that the surface was reasonably safe: once a risk of an unsafe surface was identified, the Association had a duty to stop the competition, inspect the ground, and make an informed decision about whether it was safe for the competition to continue.

The majority of the High Court also had no difficulty in concluding that the fall was caused by the unsuitable surface of the arena. This was demonstrated by the previous falls; by the fact that it took several hours to repair the surface after Ms Tapp’s fall; and by evidence that the horse had slipped on the surface.

Section 5L of the Civil Liability Act still has important work to do in protecting sporting bodies. A Rugby League player injured in a legitimate tackle, or a cricketer whose clumsy grab at the hard ball results in a broken finger, have suffered injuries because of obvious risks of their sports. But section 5L will not protect sporting organisations from the consequences of specific risks arising from decisions concerning the safety of their events, especially decisions concerning the fitness of conditions for play.