Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited

[2021] HCATrans 190

[2021] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S63 of 2021

B e t w e e n -

EMILY JADE ROSE TAPP

Appellant

and

AUSTRALIAN BUSHMEN’S CAMPDRAFT & RODEO ASSOCIATION LIMITED ACN 002 967 142

Respondent

KIEFEL CJ
KEANE J
GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, MELBOURNE AND SYDNEY

ON WEDNESDAY, 10 NOVEMBER 2021, AT 10.04 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the remote hearing protocol, I shall announce the appearances of the parties. 

MR D.F. JACKSON, QC appears with MR D.F. VILLA, SC and MS J. HILLIER for the appellant. (instructed by Commins Hendriks Solicitors)

MR J.T. GLEESON, SC appears with MR D.A. LLOYD, SC and MS K.I.H. LINDEMAN for the respondent.  (instructed by RGS Law)

KIEFEL CJ:   Yes, Mr Jackson.

MR JACKSON:   The Court should have our outline and we do ‑ ‑ ‑

KIEFEL CJ:   We did not hear that last bit, Mr Jackson.  You said the Court should have your outline, and we do, and I think you went on to identify another document.

MR JACKSON:   Yes.  I was just going to say, your Honour, it is a document ‑ ‑ ‑

KIEFEL CJ:   The audio has just dropped out again, Mr Jackson.

MR JACKSON:   …..the references in the first book of further materials.

KIEFEL CJ:    You have just dropped out.  The audio dropped out, Mr Jackson.

MR JACKSON:   …..the appellant’s submissions were made an earlier version of the transcript was available with different page numbers.  I would simply say, your Honours ‑ ‑ ‑

KIEFEL CJ:   I see.  You are referring to the document “Appellant’s conversion of references,” which was made available this morning.

MR JACKSON:   Yes.

KIEFEL CJ:   Thank you.

MR JACKSON:   Your Honour, as the Court will have seen, the appeal concerns the two issues which are referred to in Part II, paragraph 1 of the appellant’s submissions.  …..the damage suffered by the appellant was the materialisation of an…..

KIEFEL CJ:   Mr Jackson, we are having difficulty.  Your audio is dropping out on a regular basis.  I wonder if we should stand down and see if that can be remedied.  The Court will adjourn briefly.

AT 10.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.09 AM:

KIEFEL CJ:   Yes, Mr. Jackson.

MR JACKSON:   Thank you, your Honour.  Your Honour, the issues, as the Court will have seen, are those referred to in Part II, paragraph 1 of the appellant’s submissions.  They are:  one is duty of care, the other is whether in terms of section 5L of the Civil Liability Act 2002 the damage suffered by the appellant was the materialisation of an obvious risk of a dangerous recreational activity engaged in by her.  May I deal with those issues in that order?

As to the first of them, the essence, if I could put it this way, of the appellant’s case is that she was severely injured on Saturday, 8 January 2011 in a campdrafting event.  The respondent was the body responsible for ensuring the surface of the ground on which the campdrafting event took place was safe for competition.  By the time the appellant competed, the ground was not safe, there had been a number of serious falls in a very short time span before hers.

Instead of bringing the event to a halt to get the ground to an appropriate condition, the respondent took what was the, in a sense, easy way out.  It announced that competitors could withdraw and have a full refund but no indication was given that there was anything untoward about the conditions.  The appellant then rode a horse, slipped and fell and she was very badly injured indeed. 

If I could just say a little more about the basic facts.  As I said, the injury occurred on 8 January.  It was at about 7.00 pm.  It was the second day of a three‑day campdrafting event and the nature of a campdrafting event, your Honours, can be seen from Justice Payne’s reasons in the Court of Appeal at page 93 in the core appeal book paragraphs 7 to 8. 

Your Honours, as appears from his Honour’s reasons at page 9, there are risks involved in carrying out campdrafting, but it is not a free‑for‑all.  The event was under the control of the defendant, an incorporated body which conducts such events throughout Australia, and other horse‑based events.  Those who compete may win prizes, often at such events.  I said it was not a free‑for‑all, and not very surprisingly, there are rules relating to the conduct of all those involved.  The rules commence at page 59 of the first book of further materials.

They deal, your Honours, as is apparent from the index which goes from page 60 through to page 66, with a large number of topics, and they include rules allocating responsibility for various aspects of safety to the competitor and the horses and the steers involved, and the public.  And there are rules particularly relating to campdrafting, which commence at page 81 of that volume and go on from there.  Could I take your Honours to page 81, and you will see the first of the rules stated there, committee rules to the effect that campdrafts are conducted:

on a uniform basis.

And committees affiliated must:

abide by the Rules and By Laws –

And, importantly, at the foot of page 85, you will see one, the last five lines, “Com.15. Campdrafting”, and, your Honours, on the next page, there is, importantly, rule 15.5.  You will see that it states in emphatic terms – just in terms of the printing – that:

The Arena surface MUST be safe, being either ploughed or soft surface (sand or loam) arena.

The rule also states that:

Hard surfaces, grass surfaces, uncovered trotting tracks and the like –

do not satisfy the earlier stated requirement for safe arena surfaces.  Responsibility for the state of the arena surface is vested by the rules of the organising body and, as Mr Shorten – Mr Shorten if I could just pause to say was the only substantive witness of these issues…..who gave evidence on behalf of the respondent.  As he put it, the arena surface is the one variable factor that is in fact under the control of the organising body.  You will see that referred to, your Honours, in volume 2 of the further materials, and you will that, your Honours, at page 424, in lines about 8 to 31.  And you will see particularly, about line 8, question and answer that:

Q.  The committee can’t control whether a horse runs into a beast. 

. . . 

Q.  The committee can’t control, or those running the event, can’t control somebody who decides to drop the reins and falls off. They can’t control that, can they?
A.  No.

Then the question was asked:

Q.  The one factor that they can control is the quality of the surface of the arena, isn’t it?
A.  Yes.

And your Honours will see the next question and answer:

When you make decisions about the quality of the surface and how the surface is maintained, that is the one area that the committee can manage, isn’t it?
A.  Yes.

GLEESON J:   Mr Jackson, I noticed that Mr Shorten also said at 427, line 45 when referred to that rule:

A.  At the time of the event, no, we didn’t know that.

And then at the top of the following page, he seems to clarify that the arena was:

not sand or soft loam.

MR JACKSON:   Yes.

GLEESON J:   Was there any evidence that contradicted that evidence, or other aspects of that evidence?

MR JACKSON:   No.  Well, your Honour, as to the part at the top of page 428, the “sand or loam”, no.  As to the – you will see at page 427, he said:

At the time . . . we didn’t know that.

He is expressing a view, but what your Honours will see is a little further up the same page, the reasons why the event went on.

Your Honours, could I go on to say that one sees at page – if I could go back to volume 1 of the further materials at page 144, there are particularly the rules relating to campdrafting, there are particular rules of campdrafting, and one of the features of the rules which you will see at page 168 in rules 5, 6, 7 and I think also 9 is the requirement for an incident report under those rules, and I will capture the terms of the report very shortly.

If one looks to in the question how did the appellant’s horse fall, the answer we would propose is simply that the horse slipped down and went down – I am sorry, slipped and went down, tasking the appellant with it, and the evidence from those who were involved in or who saw it was all to that effect.  The references to the evidence of the witnesses on this issue can be seen first of all ‑ the appellant at page 148 of the core appeal book, paragraph 180, you will see the observation being made before the quotation referring to:

the horse’s legs “slipping”.

No contest about that.  Then her first evidentiary statement is quoted.  If I could go to about line 45, your Honours will see that she said, a little further down:

When I rode on my horse in the camp, I felt that there was good traction but as I came to do the figure 8 area, the ground felt heavy and my horse struggled to get a proper stride.  My horse could not get her next stride and she went down on her front –

front stride.  Your Honours will see the remainder of that.  There is then, your Honour, the appellant again, in the next paragraph, 181, at the top of the next page, the second paragraph quoted:

I was about half way around the first peg . . . when I felt my horse’s front legs slide from beneath me and slide towards the right.

And so on.  Your Honours will see that the judge referred to the fact that she:

was cross‑examined at length by an experienced and skilful cross‑examiner as to the many risks . . . but she was not challenged as to her description of the actual mechanism of the fall that resulted in her injuries.

To similar effect, was her sister’s evidence, which you will see at page 101 in the same book, at paragraph 31.  Your Honours, that evidence in paragraph 31 where, in the passage quoted, paragraph [23]:

I remember the horse looked like its front legs slid from under it and the horse and Emily fell.

Your Honours will also see that her sister was a very experienced – and significantly older – but very, very, experienced in campdrafting and she went on to say:

My belief is that the ground started slippery and got worse throughout the day.

She elaborated upon that in paragraph [25].  Then your Honours will see the father’s evidence in the next paragraph on page 102:

As best as I could tell, the horse and Emily fell because the front legs of the horse slid from beneath it.”

Your Honours, neither the father nor the sister was cross‑examined on that evidence.  Her sister had been involved, I might say, in campdrafting since she was 12 and you will see that referred to in her statement in page 37 of the first – of the further materials at page 37, paragraph 15.

But Mr Shorten, I might say, your Honours, also said that the horse’s feet slipped and that the appellant fell in consequence.  You will see that in volume 2 of the further materials at page 392 where speaking of – he was asked the question at the top of the page:

Q.  The fact is the horse’s feet, the front feet went from under her, slid, and she went down on one side, that’s what you saw isn’t it?
A.  Yeah the horses feet out from under yeah.

Q.  I’m sorry?
A.  Yeah the horses feet slipped and she fell.

Q.  But she didn’t go end over end did she, the horse I mean, they went sideways?  Are you having trouble with that?
A.  Yeah I can’t remember exactly how it.

Q.  What are you saying?
A.  I can’t remember exactly how it fell.

That was evidence that the horse had slid.  Your Honours, this is not case where there was a suggestion of a rabbit hole or some obstacle in the park, nor was there any suggestion that any conduct of the appellant in her riding of or her manner of riding the horse contributed to the horse slipping.  A plea of contributing evidence was withdrawn.  Nor was the horse in some way spooked.  That made it likely, your Honours, that the slippage was due to the arena surface.

Could I go back to volume 1 of the further materials at page 86, rule 15.5?  Your Honours, the area had not been – in looking – comparing what happened with what is in the rule, the area had not been ploughed at any time before the appellant’s injury.  At some time in January, some work not identified and though a relevant witness called on behalf of the respondent was done in preparation for the event, you will see that referred to in the same volume at page 195, paragraph 6 in Mr Shorten’s statement which tells you nothing and which told the court nothing.  Similarly, in his second statement, at page 205 in the same volume at paragraph 12.

In a hazard and risk assessment document apparently prepared before the series of events at page 209 of the same volume, a reference halfway down the page to:

Ground surface –

And you will see “Risk level” put as “L”:

Ground maintenance carried out prior to event.

EDELMAN J:   Sorry, Mr Jackson, I missed that reference.  What page number was that?

MR JACKSON:   Page 209, your Honour.  The pages are at right angles, but it is 209, halfway down the page, “Ground maintenance”. 

Now, your Honours, the land had been the subject of some treatment described as “renovation” the day before the commencement of the three‑day event.  The renovation is referred to in the primary judge’s reasons at page 20 in the core appeal book, paragraph 44, where her Honour refers to the incident report ‑ and I will be coming to that your Honours – noting:

as the first bullet point:

“Ground Preparation – Renovation with . . . ABCRA Renovator 27^th October 2010 ‑

This event was on 7, 8, 9 January 2011.  You will see there is a reference to “7am Friday 7^th January” and then “6.00 pm Friday 7^th January”.  So 6.00 pm is the end of the Friday.  It was not ploughed at any stage until the morning after the appellant’s accident and then disc ploughed and harrowed for more than three hours on that day and after that ploughing, the day after, there were no further falls.

KIEFEL CJ:   Mr Jackson, is it your submission that non‑compliance with the committee rules are sufficient for liability to prove both duty of care, foresight of risk and causation?

MR JACKSON:   Yes.  I do not think that is quite evident what your Honour put to me then, but our submission is that the failure to comply with the rules was a cause of the accident and one involving a liability giving rise to a prima facie liability for breach of a duty of care, satisfy all the elements.  I am going to go into it a little more, if I may, your Honour. 

I have said that after the ploughing for three hours the morning after there were no further falls.  I have used that expression, “no further falls”, because there had been a series of falls prior to that of the appellant that day.  I will come back to that in just a moment.

The court saw earlier a requirement which is in the rules at page 168, volume 1 of the further materials, a requirement for an incident report and the report can be seen in volume 1 of the further materials at page 214.  Your Honours, one cannot much doubt, in our submission, that it supported the view that the appellant’s injury was caused by the condition of the ground.

You will see the document – I have already referred to the first dot point in it – says in the third dot point that:

Around 6.45 pm on 8^th January the Open campdraft was in progress.  The ground had begun to deteriorate due to moisture from rainfall earlier in the week and the onset afternoon air.  There had been 7 falls over the course of the day. 

There is some dispute over whether there were four or seven falls.  But on any view ‑ and I will come to this ‑ there had been four bad falls in a very short time before the appellant rode.  They are summarised at paragraph 9 of the appellant’s submissions, and I will come to them very shortly, if I may.  But could I just mention, your Honours, that Mr Shorten in his evidence agreed, in volume 2 of the further materials at page 394, about line 8, that:

a bad fall is accepted –

expression “a bad fall” is accepted:

in campdrafting circles as a signal that the surface needs attention to prevent another fall.

He was asked whether he agreed with that proposition, he said:

A.  Yes I would agree with that.

Your Honours, the ‑ ‑ ‑ 

GORDON J:   Mr Jackson, may I just ask whether this is the logic, so I understand your submission?  Is it the position, as I understand the way you have put your submissions, that the evidence was that falls in campdrafting at this level were rare, which is evidence which I think Mr Shorten gave at 397?  Second, you have got the four falls in the 45 minutes, which you are about to take us to.  Third, you have got the evidence you have just taken us to of Mr Shorten that, if they were bad, these falls were bad, then it was at least, I think his words are, he accepts:

a signal that the surface needs attention to prevent another fall.

And then you have the Tapp fall.  Is that the logic?

MR JACKSON:   Yes, your Honour, yes.

GORDON J:   Thank you.

GLEESON J:   Well, Mr Jackson, can I just clarify that.  I had understood that there was a prior element to your logic which was that the ground was not safe within the meaning of the rules, or it did not satisfy the rules’ standard of safety.

MR JACKSON:   Well, your Honour, we do go further than what was put to me by Justice Gordon, but the – sorry, if I could put this another way.  In our submission, what was put to me by Justice Gordon, to which I assented, was, in our submission, sufficient, but there is more.  Your Honours, could I just say this, one can see the bad falls and the order in which they occurred at page 222, at ‑ ‑ ‑ 

EDELMAN J:   Mr Jackson, just before we get into the bad falls, just so I can frame your submission, does your submission require the duty of care to descend to the precise detail of the falls to which you are making submissions now, or is your submission about the duty of care that the duty of care is to avoid, one way of putting it might be substantially elevated risk, and so that all of this evidence about the danger or the nature of the ground is evidence that goes to a substantially elevated risk, without necessarily requiring the precise identification or proof of what that risk is?

MR JACKSON:   The elevated nature of the risk, your Honour, because it is obvious from the terms of the rules governing campdrafting that there is a risk brought about by the nature – potential risk brought about if the ground is not safe, and you end up ‑ and the indication was that if you have something that is described in the trade, as it were, as a bad fall, that is an indication that something might need to be done with the ground.  If I could just go to the bad falls that occurred ‑ ‑ ‑

KIEFEL CJ:   Just before you do, Mr Jackson, did Mr Shorten identify or describe what he called what you say is generally known as a bad fall?

MR JACKSON:   Your Honour, may I check that?

KIEFEL CJ:   I think you did at some point.  I just cannot recall that reference.

MR JACKSON:   Yes, I will endeavour to give your Honour the reference.  One can actually see the falls – I am coming back, your Honours, to the incident report, may I say?  But before doing that, could I just take your Honours to the bad falls and the times at which they occurred.  You can see them in volume 1 in the back pages of volume 1 of the further materials commencing at page 223.  The pages are slightly out of order, but you will see that down the side of each page is a number, a competitor’s number. 

You will see at page 223 entrant number 65, Nick Clydsdale, 6.14 pm, “bad fall”.  You will see that squeezed between numbers 70 and 71 is Adam Sadler, 6.22, eight minutes later, “bad fall”.  You will see at entrant 82 Pat Gillis, 6.36, 14 minutes later, “bad fall”.  Could I just say that Mr Shorten accepted – and I think I may have taken your Honours to this already ‑ Mr Shorten accepted that Mr Gillis’ horse had slipped.  Your Honours will see that at volume 2 of the further materials, page 406.  You will see about line 26:

Q.  Then Pat Gillis had a bad fall and suffered an injury, you recall that, don’t you?

A.I don’t remember.  He didn’t suffer an injury.

Q.Do you recall it was described as a bad fall, don’t you?

A.A bad fall, but.

Q.Did you see that fall?

A.Yes, I did.

Q.The horse slipped from under him, didn’t it?

A.  Yes.

Then if one goes to the preceding page, 222, you have the competitor Brad Piggot, number 98, at 6.58 pm having had a “bad fall”.  Then if one goes down to 101, you have Emily Tapp having a “very bad fall”, paraplegia.

GLEESON J:   Mr Jackson, are those words above “bad fall”, next to Mr Piggot, is that “2nd peg”?

MR JACKSON:   I am sorry, your Honour, I did not ‑ ‑ ‑

GLEESON J:   I am just asking, are the words immediately above “bad fall”, “2nd peg”?

MR JACKSON:   Yes, second peg, your Honour, yes.  Thank you.  Your Honours, could I then go back to the incident report which is at page 214?  This is the respondent’s document, of course.  You will see that it refers, in the second dot point, to the – there had been about 700 hundred runs over the two days of drafting – of campdrafting – prior to the incident.  Your Honours will see in the fourth it says specifically:

The ground had begun to deteriorate –

Then, one comes to the fourth dot point – sorry, fourth from the bottom of the same page – fourth last point on that page:

It was announced that the decision was made to continue but competitors were offered the choice to ride under the current conditions or scratch their nominations for a full entry fee refund.

Could I just say, your Honours, that the trial judge did not accept that that was actually what had been said to the competitors.  You will see it referred to in paragraph 60 of the primary judge’s reasons – 60 to 64, page 25 of the core appeal book.  It was an issue on which the question was whether the words “under the current conditions”, in effect, had been said at all.  What the judge found was that the – yes, paragraph 65, at page 26, she was:

satisfied that no specific oral warning was given to Emily and no suggestion was made, by announcement or otherwise, that competitors “rode at their own risk”.

You will see it elaborated upon in paragraphs 66 and 67.

KIEFEL CJ:   Mr Jackson, what was the status of the incident report as a matter of evidence, and was the author identified?

MR JACKSON:   Yes, the author was Mr Shorten’s wife, who was ‑ ‑ ‑

KIEFEL CJ:   She was called by the plaintiff, or she was subpoenaed but did not give evidence.

MR JACKSON:   That is so, your Honour, yes.

KIEFEL CJ:   So was her opinion and her evidence stated in the incident report.  Did the trial judge make rulings in relation to whether any opinions could be accepted as such?

MR JACKSON:   Well, as to ‑ the answer is partly yes, your Honour.  Could I say that what I mean is that the primary judge seemed to take the view that some weight – not much weight could be given to some of the things that were said, but it is not absolutely clear why that was so.  Certainly, if you look at the things that are referred to in the first three paragraphs, they seem to be matters on which she was perfectly capable of giving evidence.  Your Honours will see ‑ ‑ ‑ 

KIEFEL CJ:   Was her Honour concerned that it might be hindsight evidence?

MR JACKSON:   Well, it was only four days later.  It might be hindsight, but it was ‑ ‑ ‑ 

KIEFEL CJ:   After the accident has occurred. 

MR JACKSON:   Well, it is a report, but, your Honour, very commonly reports made by defendants for the various purposes to which I have indicated, various reports, indicate a view of what took place, much of which she was personally aware of.  So, she said what she said, we did not challenge – did not require her to give further evidence about it, and so who is to say that what she said on behalf – what she said in the report – was something that should be diminished in value.  That has involved a fair bit of speculation.  You will see, for example, your Honours know, there was no challenge to matters such as those you will see on page 215 ‑ ‑ ‑

KIEFEL CJ:   I suppose, returning to my earlier question though, Mr Jackson, on what basis was the incident report received, as a report made of an incident?  Is that as far as it goes?

MR JACKSON:   Partly as admissions, your Honour.

GORDON J:   Mr Jackson, I thought that this was addressed by the primary judge at core appeal book 27 on the next page, where her Honour sets out the fact that – his Honour, sorry – sets out the fact that there were admissions of the four falls in the incident report, then the ones you have taken us to in paragraph 70 at the top. 

MR JACKSON:   Yes, your Honour.

GORDON J:   Then answering the Chief Justice’s question, her Honour in effect raises queries about them, and then sets out the evidence that he was prepared to accept in relation to the four falls before Emily’s fall in 72.  I might clarify that the primary judge is her Honour.

MR JACKSON:   Well, at paragraph 72, there were four – but she is speaking in a context where the report says seven, four have been noted, the evidence is clear – it is either four or seven.  The only admissible account, the reasons for the fall before Emily’s:

where he says that after he fell after completing the course, because he slackened the reigns.

But, of course, Mr Shorten’s evidence was ‑ it said limited evidence, he saw two other falls take place, and one of those was that he said the horse slipped.  Your Honour, insofar as the material, it says, in the incident report, if I could just go back to it for a moment your Honours will see ‑ ‑ ‑ 

EDELMAN J:   Mr Jackson, was there any evidence that there were any other falls in the 700 runs that had occurred, or is the evidence confined to the four falls immediately preceding Ms Tapp’s fall?

MR JACKSON:   Would your Honours excuse me just a moment.  Shorten also himself fell at some point.  Your Honour, I do not think there is anything that identifies falling other than those five plus Shorten, and you have also a situation, of course, that they had conducted 700, a huge number of horse activities, to use a neutral term, at the time before the appellant’s fall.  Your Honours, could I just say that one thing about – going back to page 214, where it said that, in the fourth‑last dot point:

the decision was made to continue but competitors were offered the choice to ride under the current conditions or scratch their nominations for a full entry fee refund.

Your Honours will recall the evidence I took you to before, that nothing was actually said about the current conditions, it was simply just a question of going ahead or getting your money back.

GLEESON J:   Mr Jackson, can I ask a question about that.  Paragraph 14 of Justice Payne’s reasons at court book 95, he refers to a delay occurring:

because various people, on behalf of the Association, were inspecting the arena and deciding whether it was safe to continue the event.

The primary judge does not refer to any inspection.  Was there any evidence of inspection of the arena?

MR JACKSON:   Your Honour, the evidence, I think ‑ and we will check this, your Honour ‑ was simply that Mr Shorten walked across the arena, talked to some of the people, and that was it, as distinct from there being an inspection of the arena by those otherwise involved.

GLEESON J:   Thank you.  The other question that I have, this in relation to the second part of that sentence, the decision as to:

whether it was safe to continue the event.

I think Justice McCallum says that no decision was ever made about – her Honour says at 175, at the appeal book 146:

there is no suggestion that anyone concluded that the surface . . . was safe.

Who was correct there?

Could I just say, your Honours, at page 214, the third‑last dot point on that page to the effect that she conferred with her father, the evidence really did not go as far as that.  You will see the evidence of her and of her father in volume 2 - first of all, her evidence at page 280, commencing about line 32, going to the bottom of the page.

GORDON J:   I am sorry, Mr Jackson, I missed that reference.  Would you please give it to me again, I apologise.

MR JACKSON:   Yes, not at all, your Honour.  Page 280 of volume 2.

GORDON J:   Thank you.

MR JACKSON:   The issue with which I am dealing is the statement that she conferred with her father about whether she should go on at the event.  What you will see is the actual evidence did not support that.  At page 280, about line 25, it goes through to the bottom of the page and then something else is taken up by the judge.  Then also at page 307, line 34, a passage that goes through to page 309, line 44, does not support the view that she was talking about whether she should or should not go on.  Nor did her father’s evidence support that view.

You will see that at page 349 in the same volume in a passage which commences at about line 16 and goes through to page 350, about line 18.  That evidence was accepted by the primary judge.  You will see that at page 26 of the core appeal book, paragraphs 66 and 67.

In addition, one has the evidence of Mr Shorten on this issue.  Your Honours, all sorts of reasons have been advanced in the respondent’s submissions as to why Mr Shorten’s evidence should not be given the weight it deserves or, indeed, the meaning which it plainly enough bears.

Your Honours will see – and I am referring to the evidence summarised at paragraph 17 of our written submissions.  If I could go to volume 2 of the further materials commencing at page 397 there is some introductory matter between lines 7 to about 20.  He agreed that:

Seven falls in a day is a lot -

and the passage goes on to refer to the fact that sometimes:

the majority of campdrafting events start and end without there being a fall.

He agreed, your Honours, at page 394, in the passage I have taken your Honours already, in lines 8 to 11:

Q.  And a bad fall is accepted really isn’t it in campdrafting circles as a signal that the surface needs attention to prevent another fall.  Do you agree with that?
A.  Yes I would agree with that.

GORDON J:   Mr Jackson, at page 427 of the second book, which is transcript page 198, between lines 15 and 25, is that the evidence of the bad fall?  Is that the highest it gets from Mr Shorten – about what constitutes a bad fall, which seems to be that you – it is the outcome rather than the cause?

KIEFEL CJ:   Yes, that is the evidence I had in mind, Mr Jackson, about ‑ ‑ ‑

MR JACKSON:   Yes, your Honour, yes.  Your Honour, Mr Shorten agreed with the observation of the incident report that the condition of the ground had deteriorated during the day.  You will see that at page 413, line 22.  He agreed that before the appellant’s ride the condition of the ground had been identified as being dangerous - that is page 419, line 8.  He agreed, bottom of page 414 to the top of page 415, that it became more unsafe as time went on. 

He agreed at pages 400 to 401 that the three‑hour ploughing was carried out first thing the next morning indicated how bad the ground was the evening before.  You will see at the bottom of page 400 and…..questions and answers, and this goes on top of the next page:

we didn’t want another accident –

Then, at line 20 on page 401:

We used a disc plough because we thought at the time that would be the reason for no more falls.

Q.  Do you agree with me that the fact that a disc plough was used demonstrates how bad the condition was of the ground at 6.45pm on Saturday, 8 January 2011?
A.  Yes, I would.

Your Honours, Mr Shorten conceded that the reason why the event was allowed to go on was because, in a sense, it had to go on.  You will see that at page 406 in the passage I have taken you to already between about lines 18 to 35, page 407 about line 4 to line 15 and page 427.

GORDON J:   Mr Jackson, may I ask you about this evidence in relation to the ploughing?  I understood that the primary judge rejected that evidence on the basis that it was hindsight evidence.  What is wrong with her Honour’s analysis about that?

MR JACKSON:   Well, your Honour, what is wrong with it is that one is looking at the concatenation of events.  You have a number of falls described as “bad falls”.  You have evidence to the effect that a bad fall is something which indicates that one ought to do something about the ground.

You have the rule which says the ground should be ploughed, et cetera, or whatever, and then in the space of less than an hour before the accident that happens to the appellant you have four bad falls and then you have one very, very experienced campdrafter coming up and saying for the second time, “We have to stop this,” and you make the choice.  The choice is will you go ahead or not? 

What is recognised by what takes place the next day is that what had happened before was insufficient.  Your Honours, it is, in our submission, appropriate for – it should have been taken into account the fact that you have three hours ploughing, harrowing, whatever they do afterwards or the next day.  Nothing happens after that.  But it was necessary to put the ground in proper condition.  The judge was wrong to trivialise that.

KIEFEL CJ:   When you say “trivialise” it is just one of a number of inferences that may be drawn about why the action was taken.  The difficulty the primary judge pointed to was that you had no direct evidence as to cause.

MR JACKSON:   Well, in the sense that - your Honour, there was evidence which the judge seemed to put to one side because he had no experience in campdrafting, it is said, from one of the most experienced Australians involved in relation to horses.  That is cited in the supplementary materials, and if I could just take your Honours to ‑ ‑ ‑

EDELMAN J:   Just before you do, Mr Jackson, sorry to keep coming back to the conceptual point, but if your case is that the breach of duty consists of the failure by the organising committee to stop the event, do you not just rely upon the concession, which would seem automatically to follow in any event, that if there was a breach of duty in failing to stop the event then the injuries that were suffered by definition were caused by the continuation of the event.  There is no suggestion that somehow the injuries were outside the scope of the duty that was assumed.

MR JACKSON:   Your Honour, we say that is enough.  But the view was in fact supported by the fact that after the very bad fall, action was then taken immediately the next day, five o’clock in the morning.  It supports the view to which your Honour has adverted.  I was going to refer, your Honours, to the primary judge’s reasons at page 31 of the core appeal book.  You will see she is there dealing with Mr Doughty, an expert whom we called. 

You will see her reference at page 29, paragraph 79.  Amongst his other talents, Mr Doughty was, I think, in charge of the equestrian events at the Olympics held in Australia some years ago.  But she went on to accept a proposition, at paragraph 80, that nothing had been said in his CV about campdrafting events – in terms of his own participation in them.  You will see that she went on then to say, at paragraph 88, page 96, that he referred to the incident report.  He then referred to paragraph – she said at paragraph 89:

He concluded that the Open Draft Draw shows four “bad falls” and Emily’s “very bad fall” all occurred within approximately 50 minutes –

Your Honours will see what she said in paragraph 90.  Your Honours will see that it goes to paragraph 94.  Then, if I could go over to paragraphs 97 and 98.  Your Honours, may I make some submissions concerning our learned friend’s submissions in response ‑ ‑ ‑

KEANE J:   Mr Jackson, before you go on to that – before you go on to your next point, could I ask you, was there any evidence of whether any other competitors withdrew after the announcement that was made that competitors could scratch and get their money back?  Was there evidence as to whether anyone else withdrew?

MR JACKSON:   No – your Honour, I think what happened was that she was next.  Then, of course, she had a fall – the event was off for the day.

KEANE J:   I see.  Thank you.

MR JACKSON:   At the back of the first volume of the further materials – you will see, your Honour, page 222 of the first volume.  You will see number 101, “Ben Tapp” – “Ben” crossed out, “Emily” put in – “Xena Lena – very bad fall!”   The next ride is Sunday. 

Your Honours, could we just say this - and I wanted, if I may, to make submissions concerning the approach taken in the respondent’s submissions.  One of them, if I may say so, with respect, seems to be to refashion the case on behalf of the appellant and then to seek to knock down the case as so refashioned. 

The refashioning, your Honours, if I could go to the respondent’s submissions, begins at paragraph 34.  We would not quibble with the first sentence of paragraph 34, but the argument moves on, in particular in the next paragraph, paragraph 35, in the second sentence of that paragraph to say:

Specifically, the Appellant needs to overcome the factual findings below and establish in this Court (a) that the deterioration of the ground posed a sufficiently serious risk of injury to competitors so as to require the Respondent to consider suspending the competition –

Your Honours, we quibble with, if we may, the use of the term “considering”, and the use of the expression to such a degree.  We would submit that the use of the term “consider”, as it is there used, rather reduces the ambit of the respondent’s obligations as organiser, and could I, in that regard, take your Honours to our reply submissions in paragraph 9 where we seek to make the point that the safety of the ground conditions was not optional, it was an obligation of the respondent to ensure that was so.  That was so, of course, your Honours, because, going back to paragraph 15.5 of the rules, page 81 of volume 1, it says that:

The Arena surface MUST be safe, being either ploughed or soft surface (sand or loam) –

and must not be grass.  We refer to that, also, your Honours, paragraph 7 and 8 of our submissions in reply.

EDELMAN J:   Mr Jackson, you are not saying the obligation is one of strict liability, in the sense that there is a strict liability to ensure that it is safe.  Your submission can only be that if there is evidence of an increased risk, or a substantially increased risk, the only option that a reasonable person could take is stopping the event.

MR JACKSON:   Yes.

KIEFEL CJ:   That might be a convenient time for the morning break, Mr Jackson.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honour.  May I first give a reference that I said I would give.  Your Honour Justice Gordon asked me about an inspection of the arena by those involved on the respondent’s side.  The only evidence on the point seems to be page 414 in volume 2 in the evidence of Mr Shorten.  You will see it in a passage commencing about line 26, going through to the bottom of the page and over to the top of the next page.  He walked across it, but there we were.

Could I indicate where I am proposing to go next.  What I wanted to do was to go to a number of matters that are referred to in the respondent’s submissions.  Many of them we have dealt with in our reply.  I do not intend to go through them all at length, but may I seek to highlight a number of points in that regard.

I was going to refer first, your Honours, to paragraph 38 of the respondent’s submissions.  This is something to – you will see, for example, in the fourth line a reference, maybe he was “flustered” when he was giving his evidence, and so on.  But the reference to the witness being flustered was only in relation to the one thing and that was simply in relation to one aspect of his evidence – namely, the change in his evidence between his two statements about what was the content of the announcement that was made.

You will see that referred to in the primary judge’s reasons at page 26 of the core appeal book and you will see paragraph 68 where she speaks of being “flustered by the processes of cross-examination”.  But it is only in relation to what appears in the immediately earlier paragraphs – namely, was there a reference to performing on your merits in the announcement that was made, and it was found that there was not.

The second feature appears in paragraph 38 of our learned friend’s submissions.  It speaks of the Court of Appeal having undergone a very close examination of the transcript.  Could we refer, your Honours, to our submissions in‑chief at paragraphs 23 to 25.  I do not think I need to take your Honours to them in detail but we invite your Honours to look at them. 

If I could move from that to paragraph 39 of our learned friend’s submissions, you will see that paragraph 39 goes through a significant number of subparagraphs.  In relation to paragraphs 39a and 39b, may I take your Honours for a moment to what we have said in our reply submissions at paragraph 10, where we make the submission that whether the correct number of falls was four or seven or something else, Mr Shorten conceded that they were of significance for the reasons that he gave and we would submit that what he said there was hardly too high a level of abstraction.  It is pretty clear what he was saying.  We go on to what your Honours will see at the top, last four or five lines, of that submission.

Your Honours, could we say also – I am sorry, I should go to page 394 in volume 2, about line 13, where his observation was that he would agree with the proposition that:

a bad fall is accepted . . . in campdrafting circles as a signal that the surface needs attention to prevent another fall.  Do you agree with that?
A.  Yes I would agree with that.

Why should that be – it says what a person – very experienced in campdrafting knows – why should it be regarded, as our learned friend’s submission put it, as being at too high a level of abstraction – a level of abstraction between the horse and the ground, really.  There is not much in it, your Honours.

Could I go to paragraph 39c of our learned friend’s submissions.  It is to treat what was said there as a kind of one‑line concession – it has to be taken in context.  Your Honours, if one looks at the context of what he said at page – I will not take your Honours back again – paragraph 4, page 419, then, your Honours, our submission is that it is a statement really made in the context in which it appears - 414 page 545 to 415…..

If I could go, your Honours, to what is in paragraphs 39d to g of our learned friend’s submissions – we deal with this in paragraph 12 of our reply, but if I could just make a couple of comments about it.  The first is that Mr Shorten’s answer you will see at pages 414, about line 45 through to page 415 about line 2 – they were pretty clear answers to pretty simple questions.  His answer at page 400 about line 48, through to page 401, about line 30, involved statements which he volunteered.  He was volunteering these statements, your Honours.

He said he had never set up before, and your Honours have been taken to the passage, it goes through to the middle of outline 30, and your Honours, he was put up as the only substantive witness by the respondent.  He was experienced in the area.  His evidence was the same as that of Mr Doughty in that regard.  Can I then go to paragraph 39f of those submissions – our learned friend’s submissions ‑ ‑ ‑

KIEFEL CJ:   Just before you do, Mr Jackson, none of the other persons who had falls before the plaintiff’s fall – apart from Mr Shorten – none of them were called to give evidence by either party?

MR JACKSON:   No, your Honour.

KIEFEL CJ:   Thank you.

MR JACKSON:   You will see a reference in paragraph 39f of the respondent’s submissions to there being a:

frank acknowledgement that . . . a decision was taken . . . out of an abundance of caution. 

Your Honours, we would submit, in response to that, a cautious approach by a reasonable person prior to the appellant’s accident would have seen someone in Shorten’s position saying there had been four bad falls in under an hour; we need to do something about the ground.  Your Honours, in relation to paragraph 39g and – I should say 39f and 39g, we would also take your Honours to our reply submissions, paragraph 12, the last sentence, and to volume 2 of the further materials at page 406 – I have taken your Honours there already - and page 427 – I think I have taken your Honours there already also, but it is about line 25 through to the…..page.

Your Honours, the contingent in paragraph 40 of our learned friend’s submissions that there was no evidence supporting:

linking any of those falls to the condition of the arena -

really leaves out of account all of the evidence of the slipping, in the case of our horse, but also the evidence of there being – the evidence given by the appellant’s sister of the condition of the arena and the evidence that Mr Shorten himself had seen one of the competitors who fell – the horse had slipped.

Your Honours, could I refer your Honours ‑ and I almost…..this ‑ at paragraph 45 of our learned friend’s submissions, could we refer to ‑ your Honour can see paragraph 45(a), could we refer to our written submissions in reply, paragraph 14.  Your Honours ‑ ‑ ‑ 

GORDON J:   Mr Jackson, in relation to the matters that are raised at paragraph 45(a) and (b), do I understand your submissions to be that that evidence is not very helpful given that, as I understand it, these rides occurred, in a sense, earlier in the day rather than before bad falls which occurred in the 45 minutes or the hour before Ms Tapp’s fall?

MR JACKSON:   Yes, that is so, your Honour.  The point that seems to be being made by the other side is all these people would not have gone themselves or let themselves or let their children participate if the ground had been bad, had not been suitable.  The point we are seeking to make is that at the time these rides on which they rely took place, that was significantly earlier in the day.  If one thinks of it, conducting an affair where you have got 700 competitors on the same ground, it is unlikely the ground will be in quite the pristine condition it was in when the first one ‑ unlikely it will be in the same pristine condition it was in when the first one competed as it was by the time the 700th comes.

Your Honours, could I just say this, your Honours will see that a distinction seems to be drawn in paragraph 48 between stopping the event or bringing the event to a temporary halt to fix up the ground.  The distinction, in our submission, is really quite bizarre.  Could we refer to our written submissions in paragraphs 15 and 16 in reply.  Your Honours, the last thing I wanted to say in relation to the duty question was this:  the evidence which was adduced ‑ it was clear from the evidence adduced from Mr Doughty that the case we were making was relevantly the following, the falls and warnings given by Mr Stanton, the competition should have been suspended and the area ploughed and harrowed.

You will see the extract from Mr Doughty’s second report referred to by the primary judge at paragraph 92, page 33 of the core appeal book.  It is also clear that that is how she understood, her Honour understood the plaintiff’s case, you will see that in paragraph 198 of her reasons, at page 63.  Your Honours, may I move from that to the second issue, of which I can deal perhaps more briefly.

EDELMAN J:   Mr Jackson, just before you do, you mentioned the warning by Mr Stanton.  Was there any evidence of Mr Stanton’s experience or his standing in the campdrafting community?

MR JACKSON:   Yes, there is, your Honour.  The exact words I have forgotten.  I will give your Honour a reference.  I think the expression was “very experienced”.  I had the impression – after reading the evidence – that someone had said he was also elderly, but I think that was wrong.

GORDON J:   No, it is right.

MR JACKSON:   Yes, here we are, yes.  Your Honour, in volume 1 of the first book of further materials, it is in Mr Shorten’s statement, at page 197, paragraph 15:

I was approached by John Stanton (Stando), a very good but elderly competitor.

And so on.  There is also a piece of transcript, your Honour, which I will give your Honour a reference to a little later about his experience. 

Your Honours, may I turn then to the second issue, the materialisation of an obvious risk of a dangerous recreational activity?  This issue is concerned with sections 5L and 5K of the Civil Liability Act.  You will see them in volume A of the joint book of authorities at page 21.  Your Honours will see – going first to section 5L – and may I invite your Honours to note that the heading to the division it is in is:

Division 5 Recreational activities

at the top of the page.  It says, or it provides that:

A person . . . is not liable in negligence . . . as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

Your Honours, the terms of section 5L(2), make it apparent that the plaintiff’s actual awareness is not necessary for section 5L(1) to apply.  The combination of section 5K and also 5F go on to define what may be an obvious risk for the purposes of section 5L.  Could I take you to it?  Your Honours will see, page 21, line 22:

obvious risk has the same meaning as it has in Division 4. 

Which is on the preceding page, section 5F.  If one goes to section 5F, one sees in the first place, in sections 5F(2), 5F(3), 5F(4), references to matters which would otherwise go to the obviousness of a risk.  But, in the end, the test which is applicable is that referred to in section 5F(1).  As can be seen from the words of section 5F(1), it turns on whether the risk:

would have been obvious to a reasonable person in the position of –

the plaintiff.  A distinction – speaking broadly for a moment – is drawn in the statute.  It is drawn in the statute between the position of the defendant – the organiser – and the position of a reasonable person in the position of the appellant.

Your Honours, the appellant was competing in a competition conducted under the rules by the respondent.  She had functions.  The respondent had functions.  She was entitled to assume that the respondent had performed its function to ensure the surface was in accordance with the rules when competition was taking place.

There are several features to be borne in mind.  Her relative youthfulness ‑ she was 19 at the time.  We have put that in our written submissions in‑chief, paragraph 40.  Her lack of knowledge of the conditions giving rise to the risk, a matter to which we have referred in our written submissions in‑chief in paragraph 41.  The third feature is that the safety of the ground was not something that was optional to the respondent.  It was an obligation – its obligation.  It could not just have given up.  One of the ‑ ‑ ‑

GLEESON J:   Mr Jackson, is a reasonable person in the position of the appellant a person who knew of the falls that preceded the appellant’s fall?

MR JACKSON:   Well, not all ‑ presumably, your Honour, it is a fairly pub rule book, if I can put it that way.  But having said ‑ ‑ ‑

GLEESON J:   My question was, there were four falls in the hour or so before Ms Tapp’s fall.

MR JACKSON:   Yes.

GLEESON J:   My understanding of the evidence was that she was not aware of those falls.

MR JACKSON:   That is so.

GLEESON J:   Would a reasonable person in the position, for the purposes of 5F, be a person who was aware of those falls?

MR JACKSON:   Well, a person who was aware of those falls and chose to participate might be a person who missed out because of the application of that provision, your Honour, yes, might fall within it, because one is looking ‑ in terms of 5L(1), looking in terms of the position of the plaintiff.

GLEESON J:   So for the purpose of assessing the obvious risk, do we take it that she is to be compared with the position of a person who did know of the falls, although in fact she did not know that – did not know of those falls?

MR JACKSON:   Your Honour, she is to be taken as a person who did not know without perhaps necessarily arriving at the conclusion that every person who was aware of the previous falls would not be a person who falls within 5F(1), because the definition in 5F(1) does focus on a reasonable person in the position of that person.

EDELMAN J:   Mr Jackson, is your submission that the position of that person includes not merely the objective circumstances, but also the subjective knowledge of that particular person?

MR JACKSON:   Yes, your Honour, yes.  Your Honours, could I also say that the obligation of the respondent in this regard was but one of a number of obligations going to safety which fell upon it.             You will see two other references to it, one being the campdraft rule 4.1, which is at page 162 of the further materials.  It is speaking of animal welfare concerns.  You will see 4.1:

Poor preparation of arena surfaces.

Then if you go to the risk management rules at page 168, risk management rule 6:

Incident reports are to be reviewed and actions taken are to be recorded.

And so on.  I was going to give your Honour Justice Gordon a transcript reference to the experience of Mr Stanton.  That appears at volume 2, page 379.  Your Honours will see in the passage at about line 35:

Q.  He was the one that raised real safety concerns about this arena wasn’t he?
A.  Yes.

Q.  He’s a very, very experienced horseman and campdrafter isn’t he?
A.  Yes.

Your Honours, those are our submissions and we rely, of course, on our written submissions.

EDELMAN J:   Mr Jackson, before you conclude, there is one further issue that you might be able to assist me with.  One issue may be in relation to section 5F about the level of generality at which one characterises the risk that is involved.  For example, if the risk were to be characterised as a risk of falling off a horse, then one might readily conclude that that was an obvious risk. 

If the risk were characterised at a much narrower degree of particularity such as falling off a horse due to extremely poor conditions, that might be thought to be a less obvious risk.  How precisely do you say the risk should be characterised and, secondly, should the risk be characterised in exactly the same way as the risk for the purposes of assessing a breach of duty?

MR JACKSON:   May I answer the last part of that question first and we say the answer is no.  One is looking at the position from two points of view and, your Honour, the point of view one looks at is stated by 5F(1) to be that of a reasonable person in the position of the person who suffers harm.  That is why, if one looks, for example, at 5L(2), which says that it:

applies whether or not the plaintiff was aware of the risk.

The reason the term “reasonable person” in 5F(1) gives some operation to 5L(2).  But no, the answer, broadly speaking, your Honour, is that we would submit ‑ and we have, I think, dealt with this in our written submissions – would your Honours just excuse me one moment.  Yes, in paragraph 28 of our submissions in‑chief we draw attention to the matters, I think, that your Honour was raising with me a moment ago, particularly halfway through the paragraph.

Your Honour, we would simply say that, in terms of the application of sections 5F and 5K, one does look in the first place at what harm occurred.  You then ask was that the materialisation of an obvious risk of a dangerous recreational activity.  To see what was an obvious risk you look at the words of 5F(1), it uses the expression “in the circumstances”, there is no reason to read that down, it seems to take into account all the circumstances. 

It would have been obvious to a reasonable person in the position of that person that that person is, in our submission, someone about to, in the particular case, engage in the activity.  Your Honour, of course, there are questions of how one describes the activity but if the activity is described as engaging in a campdrafting activity, that is too broad – campdrafting activity conducted under rules whereby the condition of the ground is the matter for which the other side is responsible. 

GORDON J:   Mr Jackson, may I test that proposition?  I had understood you to identify, in effect, the risk both for breach of duty and obvious risk as the same, being the failure to call off the event because what might be described in neutral terms as the “elevated risks” which were evident to the Association by reason of the matters you have addressed.  Now, even if that is right, then is not the obvious risk or what it is purported – to ask the question whether that elevated risk is obvious to a reasonable person in the position of the plaintiff, I had understood that your case would be no, it was not obvious.

MR JACKSON:   Well, it is not obvious, it was not obvious, your Honour.

GORDON J:   But the point I make is that the risk for both the breach question as well as the 5L question I had understood might be put in the same terms.

MR JACKSON:   Well, I think not, with respect, your Honour.  That, I think, was not the…..to say at paragraph 28, I think ‑ ‑ ‑ 

EDELMAN J:   Mr Jackson, I think you are making a different point at 28.

MR JACKSON:   I am sorry, your Honour, there is a bit of ‑ ‑ ‑ 

EDELMAN J:   At paragraph 28, I think you are making a different point.  At paragraph 28 you are making the point which appears quite clearly from the text of section 5F that the risk is to be viewed from the perspective of a reasonable person in the position of the plaintiff.  Now, obviously, for breach of duty, one assesses that from the perspective of a reasonable person in the position of the defendant, but that says nothing about whether the risk that you are assessing from those two perspectives needs to be the same risk.  It would be very odd, would it not, to assess a breach of duty by reference to one risk, from a defendant’s point of view, and then consider it a completely different risk from the plaintiff’s point of view to decide whether or not it was sufficiently obvious.

MR JACKSON:   Well, people do it pretty frequently in negligence, in contributary negligence, your Honour.  I mean, one does apply different standards to it.  Your Honours, in terms of breach of duty, the duty is to ensure, so far as possible ‑ as far as reasonably possible, that the ground on which other people are participating is, to put it shortly, safe.  So far as the position of the participant is concerned, I mean, in a sense, pay their money, they are entitled to expect that part of the matter would be carried out by the other side.  It is not something they can do anything about.  Your Honour, I do not know that I can advance it beyond that, really.

KIEFEL CJ:   Yes, thank you, Mr Jackson.  Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  In terms of the issues before the Court, we would identify that the first set of issues involved both the question of breach and the question of causation, because at present the respondent has the benefit of findings on both those questions from the majority of the Court of Appeal, and I will be addressing causation as well as breach, and the second set of issues concern obvious risk.

Your Honours, in our second proposition we seek to put some submissions about the scope of the duty of care.  The Court knows that the duty in this case was admitted, and it is in the terms recorded at paragraph 22 of the Court of Appeal, or paragraph 199 of the primary judge, which was a duty of care to organise, manage and provide the campdrafting event with reasonable care and skill.  While the judgments below do not go much further in analysing why that duty of care arose, or what its scope was, we do seek to offer the Court five propositions which will inform the subsequent stages of the analysis.

KIEFEL CJ:   Yes, thank you, Mr Jackson.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise until 9.45 am.

AT 4.13 PM THE MATTER WAS ADJOURNED