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Risk management for sporting associations can be a complex but crucial matter, and the right approach will vary depending on your organisation and sport. A recent decision by the High Court following a horse riding incident shows that arranging or competing in known ‘dangerous recreational activities’ does not void the organiser’s duty of care to participants. This article takes a closer look at practical ways your organisation can limit risks through documented preventative measures.
In 2011, Emily Tapp, a young horse rider attended a multi-day campdrafting event. She was experienced and understood the risks of the sport she had entered. Campdrafting involves riding a horse whilst working cattle – the rider must ‘cut out’ one beast from the larger mob of cattle, turn them to demonstrate control to the judges, and then lead the horse through an obstacle course in a set time limit. It’s safe to assume that anybody would consider this a risky activity.
On the day of the competition, many people fell from their horses. The organisers briefly delayed the event to discuss the surface of the arena, which had become slippery, however they decided to continue as planned. Following these discussions, Ms. Tapp fell from her horse and suffered a severe spinal injury. She alleged there was a breach of the duty of care by the Association that had organised the event, which directly led to her injury. However, the Supreme Court held that her injuries were a result of the materialisation of an obvious risk of a dangerous recreational activity, and the Association had not acted with negligence. This defence relied on section 5L of the Civil Liability Act 2002 (NSW), with the Court acknowledging that the Association “had no obligation to inform Ms. Tapp of the risk of falling from her horse during the campdraft event” as “the risk of falling from a horse during the rigours of a campdrafting event was obvious”.
The decision went to the New South Wales Court of Appeals, which dismissed the appeal and found in favour of the Supreme Court’s decision. The appeal then found its way to the High Court of Australia, which, by majority, allowed Ms. Tapp’s appeal and held that the Association had breached its duty of care and caused Ms. Tapp’s injuries. The High Court found that the previous judgement’s reference to the obvious risk of “falling and being injured” and that “the horse would fall” was too general and did not correctly characterise the risk. They identified the actual risk that led to the injury was the deterioration of the surface of the arena, which had not been maintained. This was not an assumed risk and, importantly, the known risks of campdrafting did not negate the presence of assumed risks.
It is not possible to unilaterally rely on the defence that the sport is dangerous, and participants enter at their own risk. Having effective and demonstrable risk management procedures in place is therefore essential for sporting associations and those who participate in dangerous recreational activities. Some sports are risky, and the Civil Liability Act accounts for dangerous recreational activities for a reason. What you need to do is ensure you’re mitigating any potential risks that would not be known to a reasonable participant, as this is what will be examined in a court of law.
The basis of a potential legal defence lies in your organisation’s documented preventative measures. We recommend using this list as a starting point for your risk management approach:
1. Engage your lawyers to develop a specialised risk warning and waiver of liability.
2. Compile an event checklist that works for your sport, including mandatory inspections of equipment alongside the competitor and spectator areas. This should address the quality of the playing surfaces and consider exposures such as the weather, distance between roads, proximity to any animals, and stability of temporary structures, etc.
3. Develop incident reporting mechanisms including details of the injured party, witness details, and an unbiased account of the event.
4. Enlist the help of a qualified and experienced individual to assess your participants and document their findings in advance.
5. Maintain and update your risk management plan, rules, procedures, and guidelines applicable to your sport and make these available to everybody who participates.
Please note: waivers, incident reports, and checklists should be maintained for a period of at least seven years following an incident, noting that liability claims often arise and develop several years after the event. These can often result in a ‘he-said, she-said’ situation with no basis for your defence if there are no documented accounts of the incident.
Without the appropriate risk management strategy in place, this single incident led to a multi-million-dollar lawsuit spanning several years
To find out more about limiting risk exposures for your association, please feel free to reach out at any time.
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