In 2022, the High Court allowed Commonwealth Games silver medalist, Emily Tapp, to appeal previous court judgments in relation to her public liability claim for injuries sustained during an organised sporting event. The High Court awarded her $6.75 million in compensation.
Despite her incredible achievements as an elite athlete, this win in the High Court may yet prove even more important for aspiring athletes and those responsible for duty of care and athlete safety during sporting activities.
You can read the High Court Judgement here: Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd  HCA 11
The Case Facts
At the age of just 19, Emily was an experienced horse rider.
On 8 January 2011, she was competing in a multiday “campdrafting” event, which involved events showcasing contestants working and herding cattle. The event was organised by the Australian Bushmen’s Campdraft and Rodeo Association (“The Association”).
Late in the afternoon on 8 January, four other competitors had bad falls on ground that was becoming slippery and unsafe.
The Association decided to delay the competition, and talked about safety and the conditions. After that decision, they decided to continue the competition.
Emily entered the arena and while competing, fell badly and suffered a severe spinal injury.
She brought a public liability claim for compensation against the Association for negligently causing her injuries.
Isn’t falling an obvious risk of horse riding?
In 2003, states around Australia changed negligence laws to reinforce that someone who volunteers for an inherently risky activity, or who is injured as a result of an “obvious risk” should be prevented from later making a public liability claim for compensation because of the negligence of someone else.
However, organisers of risky sports or activities still have a duty of care to participants.
Determining duty of care for activity organisers – some examples
So, for instance, a skydiver who rolls their ankle when they land safely on the ground would be likely to be told by a court that an injury such as that was an inherent risk of skydiving and one that they consented to when they chose to go skydiving.
By comparison, if a skydiver’s parachute did not properly open, the company that organised the dive could be found liable for negligence as a result of not packing or maintaining the parachutes effectively, even though the activity has risks that the skydiver signed up for.
To take another example, a patient may sign a consent form for an operation which states that there are risks involved in the surgery. That might mean that if there is a surgical infection, the patient would be unable to make a claim for compensation because after all, infection is a risk of surgery.
However, the consent form would not prevent a claim being made by the patient if, for instance, the surgeon was drunk at the time of surgery. The surgeon’s impairment dramatically increases the risks of surgery. This is not what the patient consented to?
What About Personal Responsibility when participating in risky activities?
Australian Courts take personal responsibility very seriously in any claim that someone else has negligently injured a person who volunteers in a sport or risky activity.
In Agar v Hyde for example, a rugby player who suffered a severe spinal injury was unsuccessful in suing the organisation that was responsible for the rules of rugby. The Court found that the player was aware of the risks of the sport and volunteered to play knowing those risks. The Court was very keen to honour the personal choice and autonomy of people engaged in sports and risky activities and not to allow compensation where the known or obvious risks of the activity came to occur.
In Emily’s case, a key consideration for the Court was what Emily knew, or should have known, about the state of the arena before she started her run.
If Emily did not, or could not have known that the arena was unsafe, how could she be said to have truly volunteered for the risk of competing on an unsafe surface?
What Did the Courts Say?
When Emily first took her case to Court, she was unsuccessful. The Supreme Court of New South Wales found that the Association had not been negligent and that Emily’s injuries occurred because of an obvious risk of a dangerous recreational activity.
When she appealed the decision, she was again unsuccessful.
She then appealed to the High Court of Australia.
The appeal concerned:
- whether the respondent breached its duty of care;
- whether that breach caused the appellant’s injuries; and
- whether the harm was the result of the materialisation of an obvious risk of a dangerous recreational activity.
The High Court found that the Association was negligent and that that negligence was a cause of the fall and subsequent injuries.
It found that that Association should have stopped the event until the arena had been inspected and found to be “reasonably safe” – meaning that the risk of falls and serious injury to event participants was not “substantially elevated” by the competition surface.
The Court also found that the injuries had not occurred because of an obvious risk of a dangerous activity. In making that finding, the Court was at pains to find that the “risk” in this case 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.”
The Court found that that risk was not and should not have been known to competitors such as Emily.
Impact of the Decision
The High Court’s determination is a useful reminder of the law of negligence for people who participate in sports and other risky recreational activities and who may want to consider a public liability claim in the event of injury.
The balance between personal responsibility and the duty of sport and event organisers to take reasonable care can be hotly contested. In Emily’s case, the High Court reiterates that the tension between them is resolvable.
Not everyone who participates in a sport or recreational activity consents to putting their life in danger by participating, and event organisers need to remain vigilant in relation to risks and hazards which may not be known to participants.
The key questions in sporting and recreational cases remain:
- What risks are created are encountered by the activity?
- Who knows or ought to know about them?
- Are they the kinds of risks that the participant signed up for?
- Who has the power to reduce those risks?