Judgement on liability shows horse sense

Posted on 21 May 2020

By Chris Borthwick, thinker in residence, Our Community

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As part of the Institute of Community Directors’ commitment to encouraging good governance, this ongoing series of articles dubbed “Case Watch” aims to highlight failures that offer lessons for other not-for-profits.

Campdrafting is a sport where participants on horseback carry out various activities involved in working with cattle. It’s just been the subject of a court case that has shifted the needle on the dial when it comes to liability.

Emily Tapp
Emily Tapp. Source: Australian Paralympic Committee

In 2018–19, the NSW Supreme Court heard that in 2011 Emily Tapp entered a campdrafting tournament, signing a waiver beforehand that said she understood and accepted the risks involved and wouldn’t sue (read about this here). In the tournament Emily, who was then 19 years old, fell from her horse and received severe permanent injuries. (She later went on to become a Paralympic athlete and triathlete, but that’s another story.) Many of her basic costs were covered by the event’s public liability insurance, but she also sued the Australian Bushmen's Campdraft and Rodeo Association Ltd (ABCRA), the not-for-profit organisation running the tournament.

Two questions came before the court:

  1. Had the ABCRA been negligent - should it have called off the event when it had rained the day before?
  2. If it had been negligent, did it matter?

The court didn’t find there had been negligence, pointing out that the fact an accident had occurred didn’t of itself necessarily mean that anyone was at fault. Accidents did happen, particularly when horses were involved.

That wasn’t the main focus of the judgement, though. Even supposing there had been negligence, there were two other questions: did any other law offer a defence, and had the unfortunate plaintiff lost her chance by signing a waiver agreeing not to sue?

Campdrafting
A legal ruling on the sport of campdrafting shows that legal waivers, properly used, can help protect your organisation. Picture Cgoodwin/Wikimedia Commons

The plaintiff’s lawyers said that the relevant legislation was consumer law – contract law – which places tight limits on waivers precisely to stop people being bamboozled by the small print. For that to be the case, though, Tapp would have to have had a contract with the Association, and she didn’t – the sign-up arrangements for the tournament were with an events management business.

If consumer law didn’t apply, how about the common law duty of care? That’s harder to avoid. The ABCRA was protected by the NSW Civil Liability Act, which was much more willing to allow waivers. The judge said:

…a risk warning for recreational activities can be given full force and effect so that there is no duty of care where a risk warning such as that set out in the waiver form has been given. The terms of the waiver are clear and require the signatory to acknowledge campdraft is a recreational activity, that there are risks, that there is a risk of personal injury or death and that by signing the waiver the plaintiff understands she is waiving her rights to sue “whether caused by the negligence of the provider, its employees or agents, however caused or otherwise”.

Furthermore, Section 61 of the Civil Liability Act also protected any volunteer of a community organisation from personal civil liability for any act or omission done by the volunteer in good faith when doing community work organised by the community association, or as an officeholder.

Taking it all together, Ms Tapp had given up her right to sue by signing that waiver.

As with every case, the outcome here was the product of particular circumstances and a patchwork of laws, and you can’t draw absolutely definite answers from it. Civil liability acts differ between states, for example; some states only cover all-volunteer not-for-profits, while some, as NSW does in this case, cover all NFPs. This was a case where the risks were fairly obvious on the face of it, rather than being concealed. By no means every waiver is going to cover any volunteer organisation against all claims.

Still, it’s something of a change in legal trends to say that any waiver at all is valid, and it’s interesting to see that the volunteer protection provisions in the legislation do appear to be effective.

Whatever the law, of course, your first step must always be to try and remove as much actual – as opposed to legal – risk as possible, and we hope you’ll never find yourself in a situation where something bad happens anyway despite your best endeavours. Don’t let this case give you any encouragement to simply charge ahead regardless with your eyes shut and rely on the legislation as a defence; judges tend to frown on that.

With that in mind, it’s worth considering the waiver the ABCRA used. Use it as a model. It’s specifically applicable to dangerous sports, and if your group is into needlework it’s going to require a lot of modification, but if it dissuades anybody from taking you to court it will have served its purpose.

These case notes draw on the work of Professor Myles McGregor-Lowndes and Frances Hannah of the Australian Centre for Philanthropy and Nonprofit Studies at the Queensland University of Technology, who, in line with the general theme, are not liable for any mistakes introduced into this discussion.

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Here is a copy of the liability waiver that the association successfully used and was tendered to the court
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ANNEXURE Liability Waiver Form: 

AUSTRALIAN BUSHMEN'S CAMPDRAFT AND RODEO ASSOCIATION

LIABILITY WAIVER FORM EXCLUSION OF CERTAIN RIGHTS TO SUE 

The purpose of this agreement is to exclude the ability of the Provider for any personal injury or death to the Participant and other people in the care and control of the Participant howsoever caused, who signed this form as acknowledgment of the terms and conditions of this agreement. By signing this form you are waiving your rights to sue the Provider for losses relating to personal injury or death arising from the provision of Recreational Services to you and your participation in the event, activity or competition (hereinafter referred to as "the recreational activity').

Under the provisions of the Trade Practices Act and various State laws conditions are implied into contracts that mean that the Provider of Recreational Services, noted below, is required to ensure that the Recreational Services provides to you are rendered with due care and skill, are fit for the purpose for which they are commonly bought as It is reasonable to expect in the circumstances or might reasonably be expected to achieve the result you have made known to the Provider. 

Name and Address of Provider

________________________________________________________

The Participant acknowledges that the recreational activity being undertaken is an activity being undertaken for the purposes of recreation, enjoyment or leisure that involves a significant degree of physical risk. The Provider acknowledges that they are providing the Recreational Services detailed below. This may entail providing facilities for participation in a recreational activity, or training a person to participate in a recreational activity, of supervising, adjudicating, guiding or otherwise assisting a person's participation in a recreational activity 

The Participant hereby acknowledges that in participating in the recreational activity that there are risks involved to him or her or other people in his or her care and control. The Participant also acknowledges that the purpose of the recreational activity is for the benefit of the Participant and for the benefit of those people in the care and control of the Participant and that at all times the Participant is responsible for his or her own actions and the actions of those other people in his or her care and control 

Description of Recreational Services 

________________________________________________________

Steps taken by Provider to avoid the danger of personal injury or death

(NOTE: This list is not intended to be exhaustive). The Provider may have taken other steps, not listed herein, to avoid the danger of personal injury or death. 

For example: daily weekly/monthly equipment inspections, qualified staff used, staff participant ratio compliant with Industry Standard, adherence to industry code of practice, code of conduct or accreditation schemes emergency procedures in place; contingency plans in place for emergencies: qualified first aid personnel available, communication procedures in place etc. 

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The Participant acknowledges that during all times while he or she is participating in the recreational activity, he or she does so at his or her own risk. The Participant and other people in the care and control of the Participant will not hold the Provider or any of its employees or agents liable for any personal injury or breach of contract whether caused by the negligence of the Provider its employees or agents howsoever caused or otherwise.

The Participant acknowledges that in the event that he or she or any of the other people in his or her care and control find either or any of them is in difficulty during participation in the recreational activity, that he or she are to stop the activity or request that the activity be stopped if appropriate, and seek help and/or assistance and advice. 

Declaration and signature

By signing this agreement understand that the Recreational Services about to be sold to me as set out in this form may result in personal injury or death to me or the persons in my care and control. By signing this agreement, I understand that I am waiving my rights and the rights of the persons in my care and control, to sue the Provider for losses relating to personal injury or death to me or to the persons in my care and control, which are sustained as a result of my participation in the recreational activity, whether caused by the negligence of the Provider its employees or agents howsoever caused or otherwise. I agree not to drink alcohol or take drugs prohibited by law before an event.

Name of Participant 

Signature of Participant / Parent / Guardian

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