Horses, consumer law, dangerous recreational activities April 23, 2020
The claim under the Australian Consumer Law
- At -, the primary judge rejected the allegations for contravention of s 60 of the Australian Consumer Law, which provides that:
“If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.”
- There is some awkwardness in construing that federal guarantee in light of the definition of “supply” and “services” which need not be explained in detail (it is considered in Scenic Tours Pty Ltd v Moore  NSWCA 238; 361 ALR 456 at – ). For present purposes, all that matters is that the federal guarantee is not unqualified. Section 275 of the Australian Consumer Law makes certain State laws which limit or preclude liability applicable to the federal regime:
(b) the law of a State or a Territory is the proper law of the contract;
that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.”
- Former s 74 of the Trade Practices Act 1974 (Cth) resembled s 60, although it imposed an implied contractual warranty, rather than creating a statutory guarantee. However, there was formerly no counterpart to s 275, as a result of which s 74 was unqualified and was held to engage s 109 of the Constitution so as to render inoperative a Queensland law limiting the liability of carriers in Wallis v Downard-Pickford (Nth Qld) Pty Ltd(1994) 179 CLR 388;  HCA 17. Section 275 provides for the opposite outcome. State and Territory laws which limit or preclude liability arising from a breach of a contract for the supply of services also limit or preclude liability under the federal guarantee created by s 60.
- Evidently, there was a contract between Ms Menz and the respondent, pursuant to which she was permitted to enter onto the land and compete in certain events (for which she paid a nominal entry fee). Pursuant to that contract, the respondent supplied and Ms Menz received services including those relating to the organisation of the equestrian events in which she competed. The proper law of the contract was the law of New South Wales. Accordingly, if, as Ms Menz alleged, the services of running the equestrian events at the Wagga Wagga Show had not been rendered with due care and skill, the preconditions to s 275 were established. Further, s 5L of the Civil Liability Act applied, bearing in mind that s 5A makes Part 1A of the Act applicable to “any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise”, and “negligence” is defined in s 5 to mean “failure to exercise reasonable care and skill”.
- The primary judge considered, relevantly, that s 5L was a section which applied “to limit or preclude liability” within the meaning of s 275 of the Australian Consumer Law, with the result that s 5L was also an answer to the federal claim. Mr Jackson QC accepted that “if s 5L applies it would apply to defeat the claim both in negligence and under the Australian Consumer Law”. However, in light of the High Court’s reserved decision on appeal from Scenic Tours Pty Ltd v Moore, he sought to reserve his position in the event that the High Court effected a change in the law before judgment in this appeal was delivered.
- The primary judge also relied on s 139A of the Competition and Consumer Act 2010 (Cth) to pick up s 5N and the risk warning signed by Ms Menz as a further answer to the federal claim. This aspect of his Honour’s reasoning need not be summarised.
39 It was not inappropriate for the primary judge to address s 5L first. Doing so was consistent with what was said in Goode v Angland (2017) 96 NSWLR 503;  NSWCA 311 at  and the decisions there referred to. In the present case, duty was admitted, and causation was straight-forward, but breach gave rise to highly contestable evidentiary issues, particularly in terms of the reasonable response required by s 5B(1)(c)having regard to the matters specified in s 5B(2). Because s 5L is a specific provision which provides a complete answer to liability, and is prima facie aimed at situations similar to those alleged by Ms Menz, considerations of judicial economy suggest it should be relied on at the outset. That is not to say that the alternative defences should be overlooked, and indeed the primary judge went on to attend to all of the issues raised on the pleadings. But if there is a choice between a simple and a complex legal analysis to resolve a dispute, it seems commonsense to take the simple route home first.
40 Obvious risks pre-dated the Civil Liability Act, and s 5L is to be construed in light of the pre-existing law, although the section probably altered the law. I have in mind the support in Vairy v Wyong Shire Council (2005) 223 CLR 422;  HCA 62, a pre-Civil Liability Act case, for the (contentious) proposition that the obviousness of a risk is not determinative of breach, although it will be relevant to assessing the steps which ought to have been taken by an occupier to discharge its duty to take reasonable care: see at -,  and . However, when s 5L applies, a defendant who can establish that the harm has resulted from the materialisation of an obvious risk of a dangerous recreational activity will have a complete defence.
41 It is uncontroversial that the onus lies on the defendant to make out the elements of s 5L:Fallas v Mourlas (2006) 65 NSWLR 418;  NSWCA 32 at , -; Lormine Pty Ltd v Xuereb  NSWCA 200 at . But the issue presented by s 5L in the present case did not turn on any evidentiary onus. There was no factual dispute as to the immediate cause of Ms Menz’s injuries – her horse fell while she was in the saddle and landed on her. There was no factual dispute that that occurred because her horse was “spooked”. That may have been directly from the noise made by the children, or indirectly from the sudden movement of Ms MacDonald’s horse reacting to the children, but nothing was said to turn on that. There was no factual dispute that horses could be spooked by a variety of stimuli, or that there was a risk of serious injury if a rider fell from a horse.
46 … the issue presented was as to the appropriate specificity or generality to describe each of (a) Ms Menz’s conduct (competitive horse riding per se, or horse riding while warming up before competing), and (b) the risk which materialised (personal injury from a horse falling, or personal injury from a horse being spooked by the unlikely event of a sharp noise made by children near the warm-up area and falling). Understandably, the plaintiff contended for a narrow description of her conduct and the risk, while the defendant contended for a greater level of generality of both.
47 Such questions recur throughout law. They are an example of a familiar phenomenon, explained by Hart:
“For any account descriptive of any thing or event or state of affairs, it is always possible to substitute either a more specific or a more general description”: HLA Hart, “Dias and Hughes on Jurisprudence” 4 J Soc of Pub Teachers of Law (NS 1958), 144-5, cited in W Twining and D Miers, How To Do Things With Rules (5th ed 2010, Cambridge University Press), p 167.
48 The problem arises because the legal rule (here, the liability-defeating rule imposed by s 5L) is necessarily expressed in fixed statutory language, while the state of affairs to which the rule is said to be applicable may be described more or less generally or specifically without undue artificiality. It would be reasonable to describe Ms Menz’s harm as being caused by her spooked horse falling while she was in the saddle, just as it would be reasonable to describe it as being caused by children making noise spooking the horses in the warm-up area. There is in short no canonical, or a priori correct, way of formulating the risk which materialised to cause Ms Menz’s injury. Much may depend upon the degree of generality or precision with which the obvious risk is characterised, as was noted in Collins v Clarence Valley Council (2015) 91 NSWLR 128;  NSWCA 263 at  and by J Dietrich, “Personal Injuries and Recreational Activities” (2013) 115 Precedent 32 at 34.
49 That may seem rather abstract, but the issue is immensely practical. The Civil Liability Actmakes the specification of the risk of harm important in every case. That applies at the threshold in every case in which a failure to take reasonable care is alleged, by reason of the three mandatory matters in s 5B(1) that a plaintiff must establish, and the four matters in s 5B(2) which a court is required to consider, all of which are addressed to a “risk of harm”. Four of the seven matters invoke risk of harm in terms, while the other three, s 5B(1)(c) and 5B(2)(a) and (b), deal with taking precautions against a risk and the consequences of failing to do so, which cannot be assessed without regard to the risk.The importance of identifying the risk of harm has been stressed in, inter alia, Garzo v Liverpool/Campbelltown Christian School  NSWCA 151 at ; Port Macquarie Hastings Council v Mooney  NSWCA 156 at ; Bitupave Ltd t/as Boral Asphalt v Pillinger at ; Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752;  NSWCA 320 at – ; Nepean Blue Mountains Local Health District v Starkey  NSWCA 114 at ; Fairall v Hobbs  NSWCA 82; 347 ALR 151at –  and Coles Supermarkets Australia Pty Ltd v Bridge  NSWCA 183 at – .
50 This is one of the signal changes effected by the Civil Liability Act. While the correct identification of the risk of harm was stated to be essential to identify a reasonable response in decisions to which the statute did not apply (for example, Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330;  HCA 42 at ), the statute crystallises the position. It is not surprising that most of the decisions on the way in which the risk of harm is to be formulated have been decisions to which the civil liability legislation applied.
52 Some guidance is given by the cases. As Payne JA and I noted in Coles Supermarkets Australia Pty Ltd v Bridge at , it has been said that:
- (1) the formulation of risk of harm should identify the “true source of potential injury” (Roads and Traffic Authority of NSW v Dederer at ) and the “general causal mechanism of the injury sustained” (Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1;  NSWCA 90 at );
- (2) “the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred”: Erickson v Bagley  VSCA 220at ; Southern Colour (Vic) Pty Ltd v Parr  VSCA 310 at ;
- (3) “What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury (as noted in Dederer at ) or because it too narrowly focusses on the particular hazard which caused the injury (as noted in Port Macquarie Hastings Council v Mooney at ), or because it fails to capture part of the plaintiff’s case (as in Garzo).”
60 Turning now to s 5L(1) itself, the liability-defeating rule includes words importing a causal connection: “as a result of”. Section 5L(1) only defeats a plaintiff’s claim where the harm is suffered “as a result of” the materialisation of an obvious risk. Causation in law is complex, albeit that in tort those complexities were long concealed by the opacity of a jury verdict, and it is trite that “the legal concept of causation differs from philosophical and scientific notions of causation”: March v E & M H Stramare Pty Ltd  HCA 12; (1991) 171 CLR 506 at 509;  HCA 12. The complexity is not solved by submissions which are sometimes made (although not in this appeal) that causation should be determined as a matter of “commonsense”, a mantra which often conceals rather than elucidates. The difficulties in that course were exposed by McHugh J’s dissenting reasoning in March at 531-534. Insofar as causation is an element of the tort, the test is now found in the factual causation and scope of liability required by s 5D of the Civil Liability Act. But the causal connection embedded within s 5L is not necessarily the “but for” test in s 5D(1)(a). This is a question of statutory construction, ultimately turning on the meaning of the words “as a result of” in their context.
62 …a relatively high degree of specificity was required in order fairly to capture the risk which materialised causing harm to the plaintiff in that case. When that was done, the risk was not an obvious risk.
70 What follows from the considerations mentioned above is the following. First, the obvious risk is in principle to be specified with a degree of generality. There may well be no single “correct” specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient.
71 Secondly, 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. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required.
72 Thirdly, a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight.
73 Fourthly, I think there is much to be said for the view that “as a result of” in s 5L, in a context which speaks of harm materialising from an obvious risk, requires a close causal connection between the harm and the risk which materialises. The section is directed to harm which materialises as a result of a risk of which the plaintiff ought reasonably to have known. If the risk is obvious, it may be expected that there is a close causal connection between the risk which materialises and the harm.
74 Fifthly, 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.
75 In the present case, the harm was caused as a result of the fall. True it is that the indirect cause was the noise made by the children. But that does not deny a conclusion that the entirety of the personal injury may fairly be said to be “as a result of” the horse being spooked and its rider losing control.
76 An analogy may be taken from Basten JA’s reasoning in Fallas v Mourlas at -, concerning an obvious risk of physical harm from the accidental discharge of a loaded rifle when “spot-lighting” for kangaroos. The existence of such a risk is unaffected by the reasons which may lead to the accidental discharge in any particular case, or by the care (or absence of care) of an armed fellow participant. It is not necessary in order to describe what occurred to go further and say that the gun discharged because the participant had forgotten there was a cartridge in the breach, and it had been necessary to brake suddenly because of an obstacle on the road.
77 To take a further analogy from Ward JA’s reasoning in Campbell v Hay  NSWCA 129at , the obvious risk of flying in a light aircraft is that a passenger suffers harm following an emergency landing. It would be unduly particular to refer to the obvious risk being that of harm following an emergency landing by reason of failure of the propeller, or the engine, or whatever particular mechanical defect caused the emergency. That risk is ever-present, irrespective of the experience of the pilot or the maintenance of the aircraft.
78 Conversely, this is not a case where something quite unexpected, such as an instructor causing a young child to drive an unstable quad bike too fast as in Alameddine, means that physical harm from falling off a quad bike fails appropriately to capture what occurred. While the precise mechanism of Ms Menz’s horse being spooked may not have been obvious, the fact that her horse could be spooked by some stimulus at any time was obvious.
79 There will, inevitably, be difficult cases. But the present is, to my mind, quite clear. There were three basal and inescapable facts in this litigation. The first was that, as it was put, there was “no such thing as a bomb proof horse”. The second was that horses may at any time be spooked by a noise, or a shadow, or some other stimulus. The third was that a rider runs a risk of serious injury in the event that a horse is spooked and behaves unpredictably. Those facts make it appropriate to characterise the harm suffered by Ms Menz as the materialisation of the obvious risk of her horse being spooked by some stimulus. It is not necessary in order fairly to describe what occurred to provide the additional particularity that the noise made by children spooked the horse.