A woman who, whilst warming up with her horse in preparation for participating in a country show sustained a brain injury after falling with her horse who was spooked by nearby unruly children, has unsuccessfully sued the operator of the show, with the Supreme Court of New South Wales finding the recreational activity was dangerous and the risk of the dangerous recreational activity was obvious.
Background
On 27 and 28 September 2012, the Wagga Wagga Show Society Inc (“the show society”) conducted an agricultural show at the Wagga Wagga Showground. Ms Kerrie Anne Menz was very experienced in riding and managing horses. On 27 September 2012, the first day of the show, Ms Menz rode a horse “Sonny” in a number of events. She had trained Sonny and also successfully competed with him in previous events and shows.
Ms Menz returned to the show the following day to ride Sonny in some further events. She took Sonny in a lead class but she has no recollection of anything else that happened. Ms Menz claims that at approximately 10:00 am she was riding Sonny in a designated warm-up area of the showground prior to the commencement of an event in which she was to compete. A number of children were nearby, playing and/or climbing on a fence surrounding a greyhound track which was located in the centre of the showground. Those children made contact with a metal sign on the fence, causing a very loud noise. This noise startled Sonny. He faltered and fell onto his right side whilst Ms Menz was still in the saddle, causing her to fall at the same time and suffer serious injury including a brain injury. [4]
On the first day of the show, Ms Menz signed a document entitled “Agricultural Societies Council of New South Wales Incorporated Participants Indemnity and Waiver RISK WARNING – HORSES (original emphasis)”.
Court proceedings
Ms Menz commenced proceedings in the Supreme Court of New South Wales against the show society, in negligence and claimed damages. She alleged that there was a failure on the part of the show society to have marshals and stewards available to control the presence and behaviour of children in and around the warm-up area.
The show society denied liability. It also relied upon the statutory defences pursuant to the Civil Liability Act 2002 (NSW), namely that it is not liable for any harm suffered by Ms Menz because her injuries were due to the materialisation of an obvious risk of a dangerous recreational activity.
His Honour Bellew J found that at the time of being injured, Ms Menz was engaged in a recreational activity, namely horse riding, and that the recreational activity was dangerous. Further, the risk of the dangerous recreational activity was obvious and the harm suffered by Ms Menz was the result of the materialisation of an obvious risk. Bellew J also found that the risk was the subject of a risk warning and the show society did not owe a duty of care to Ms Menz.
Accordingly, the court found in favour of the show society: Menz v Wagga Wagga Show Society Inc (No 3) [2019] NSWSC 541.
This case will shortly be fully reported in the Australian Torts Reporter.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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