In Menz v Wagga Wagga Show Society Inc  NSWCA 65, the Court of Appeal revisits the question of an obvious risk and asks, is it obvious?
Ms Menz, was seriously injured when her horse, Sonny, was spooked and fell upon her whilst she was in the saddle. At the time the appellant, an experienced rider, was warming up for an event at the Wagga Wagga show, in a warm-up ring with other horses. Some children who were playing in close proximity, came into contact with a metal sign which made a loud noise. Sonny was either spooked by this noise or another horse in the warm-up ring that was startled by the noise.
At first Instance
The primary judge characterised the risk as an ‘obvious risk’ and found the appellant was engaged in a dangerous recreational activity, which activated s5L of the Civil Liability Act 2002 (NSW) (CLA) and defeated her claim.
The appellant accepted that, at the time of the incident, she was engaged in a recreational activity. However, she maintained that because she was riding her horse in the warm-up ring that it was not a “dangerous” recreational activity and she further alleged that the risk which materialised, of her horse being spooked by a noise that was made by a group of children, was not an “obvious risk”.
The respondent submitted that there was always and inevitably the possibility of a large animal with a mind of its own being spooked by some stimulus, leading to a fall with the possibility of very serious injury to the rider. It followed that the activity was “dangerous” and the risk which materialised was “obvious.“
The critical issue for determination was characterisation, that is how the “risk of harm“ is to be identified given the appellant characterised the risk narrowly as the noise that was made by the children, whilst the respondent applied a more general characterisation, being the risk of riding the horse.
The Court held a general, broader characterisation was appropriate. In reaching this decision, the Court referred to s5M(5) of the CLA on the basis that it is a direct link between 5M and 5L and indicated that s5M(5) avoids the specific and supports a warning of a “general nature“.
In order to determine if the Insured’s characterisation of what occurred was an appropriate one so as to engage s5L, the Court set out the relevant criteria which must be satisfied:
- The obvious risk is to be specified with a degree of generality;
- The specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case;
- The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring;
- There must be a close causal connection between the harm and the risk which materialises; and
- The proper characterisation is fact dependent and will turn on the evidence in any particular case of what occurred and why the risk is one that is obvious.
The Court found a causal connection between Ms Menz losing control of the horse after it was spooked and her injury. It found that the precise mechanism of the appellant’s horse being spooked may not have been obvious however the fact that the appellant’s horse could be spooked by some stimulus at any time was obvious. In this regard the court noted:
- There was no such thing as a bomb proof horse;
- Horses may at any time be spooked by a noise, a shadow or some other stimulus; and
- The rider runs a risk of serious injury in the event that a horse is spooked.
Accordingly, the Court held that it is appropriate to characterise the harm suffered by Ms Menz as the materialisation of the ‘obvious risk’ of her horse being spooked.
The Court was not persuaded that there was any need to distinguish between riding a horse in a warm-up ring and participating in a competition. The Court found the recreational activity of riding a horse to be a dangerous recreational activity. This finding activated s5L of the CLA to defeat the appellant’s claim and the appeal was dismissed.
The Court of Appeal has presented a clear indication of the approach to adopt in characterising an ‘obvious risk’ which should remove some uncertainty and assist underwriters better determine how to respond to public liability claims.
This article was written by Brett Turnbull, Partner.