With summer holidays around the corner and restrictions easing – many people are seeking new adventures and hobbies closer to home. Our clients in the sports and leisure industries are welcoming the increased patronage. The pandemic has been especially unkind to these businesses – forcing some to close and many to reduce their workforce. A recent case, – Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd  NSWCA 263, will alleviate some of the pressures and give some comfort as it reinforces that there are situations where a dangerous recreational activity has obvious risks and therefore injured customers may not be able to successfully sue for negligence.
In 2002 there were significant changes in public liability law over the to better protect operators in the leisure and recreational industry.
Under s 5L of the Civil Liability Act 2002 (NSW) (CLA) personal injury cases can be defended on the basis that it was an Obvious Risk i.e. one which is obvious to a reasonable person exercising ordinary perception, intelligence & judgment. A Dangerous Recreational Activity is a recreational activity that involves a significant risk of harm.
Since the introduction of this defence – the decisions on whether an activity is considered a dangerous recreational activity (and therefore inherently risky) – has depended on the facts of each case.
Previous cases have deemed that playing Oztag for example – is not a dangerous recreational activity. In Falvo v Australian Oztag Association & Anor  NSWCA 17 the Court of Appeal said that Oztag was not a “dangerous recreational activity” mainly as it was considered a non-contact sport. However, the plaintiff’s appeal still failed because he could not prove causation. His fall was actually caused by him attempting to change direction when running at pace, not by the condition of the field.Also, the condition of the field was obvious.
In Doubleday & Anor v Kelly (2005) NSWCA 151 – jumping on a trampoline is not a dangerous recreational activity. A 7yr old staying the night at a sleepover – jumped on a trampoline in roller skates, breaking her arm. The parents who owned the home where the slumber party took place, unsuccessfully argued that they could defend the claim on the basis that it was a dangerous recreational activity.
In Stewart & Ors v Ackland  ACTCA 1 the Court held that the owners of an amusement park was liable for injuries sustained by a patron whilst performing a backflip on a jumping pillow.
The Court of Appeal held in Holroyd City Council v Zaiter  NSWCA 109 that the Council was liable as the act riding a bike down a steep slope was not a dangerous recreational activity – it caused the 9 year old boy to fall into an unfenced concrete channel and sustain brain damage.
Goode v Angland  NSWSC 1014 affords a strong defences to professional sporting clubs in NSW. Goode was a professional horse jockey who was thrown off his horse. It was held that falling from his horse was an obvious and serious risk of harm that materialised while undertaking a ‘recreational activity’
If you’re thinking about learning a new activity that may pump you full of adrenalin – be warned that campdrafting has risks. In a very recent case – Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd  NSWCA 263, the NSW Court of Appeal has decided in favour of the Australian Bushmen’s Campdraft & Rodeo Association Ltd – a not-for-profit community sports association which organized campdrafting.
If you’ve been bingeing on Yellowstone during lockdown – the activity will look familiar albeit in an Australian setting. Campdrafting is unique to Downunder – it is sport involving a horse and rider working cattle, similar to what we see in cowboy movies.The horseback riding competitors aim to control and herd stock. They must follow a course and complete the it in less than 40 seconds.
The plaintiff, Tapp, was 19 years old in 2011 when she entered a campdrafting competition. Tragically, she sustained horrendous injuries. Prior to the competition, the Association checked and maintained the outdoor course after having prior incidents. Tapp was an experienced rider however as she attempted a figure eight, she felt the ground was heavy and her horse’s front legs fell and she was thrown off the horse.The question for the Court was whether or not the accident was as a result of the ground being uneven or an inherent risk of campdrafting.
The Court found in favour of the Association on the basis that the accident was not caused by the failure of the Association to check and maintain the grounds but rather that the dangerous recreational risks present in the sport itself. The plaintiff had not been able to prove that the fall was due to the deterioration of the surface.
So when you’re ready to get off your couch, start booking your new thrill seeking activity – but beware of the risks!
And if you are an owner and/or operator of any sports and leisure facility – then we recommend the following measures are put in place to best manage your liability exposure:
- Immediately provide the best care to the injured customer with the utmost empathy (however do not admit liability).
- Check all social media posts and respond to aggrieved customers as soon as possible to best manage your brand reputation.
- Gather all information including CCTV and prepare an incident report with objective information. Make sure you get contact details of all witnesses. This is especially if a child was hurt and/or it was a serious injury.
- Regularly check and maintain all areas of the site and equipment and keep records.
- Regularly review and update and leases with operators; waiver forms and warning signs.
- Have a robust, streamlined incident notification and claims management process with specialists.
If you’re interested in how Proclaim can help you, please contact Marianne Emerson on 02 9187 1311 or firstname.lastname@example.org to arrange a meeting.