Supreme Court New South Wales Medium Neutral Citation: Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2018] NSWSC 616 Hearing dates: 1 May 2018 Date of orders: 01 May 2018 Decision date: 08 May 2018 Jurisdiction: Common Law Before: Lonergan J Decision: Question allowed Catchwords: EVIDENCE – whether question in cross examination within the ambit of pleadings – where specific terms of announcement not pleaded – where specific terms of announcement not objected to in other statements Category: Procedural and other rulings Parties: Emily Jade Rose Tapp (Plaintiff) Australian Bushmen's Campdraft & Rodeo Association Ltd (Defendant) Representation: Counsel: A Bartley SC/K Oldfield/J Hillier (Plaintiff) G Watson SC/D Lloyd (Defendant) Solicitors: Commins Hendricks Solicitors (Plaintiff) RGSLAW (Defendant) File Number(s): 2012/241041 Judgment 1. An issue arose in day 2 of this trial concerning objection taken to a question asked of the Plaintiff in cross-examination. I allowed the question to be asked and answered and these are the reasons for that decision. 2. Some background regarding the issues is required. The Plaintiff suffered a fall from her horse while participating in a campdrafting competition at Ellerston in New South Wales on 8 January 2011. She was 19 years old at the time. Issues had arisen during the day and in particular, in the hour or so leading up to her participation in that particular part of the competition that the campdraft arena was not in a safe state for the competition to continue. 3. It is the Plaintiff's case that the organisers ignored the state of the ground and requests made by another experienced senior campdraft competitor to cease the competition. Instead, the organisers permitted the competition to continue and because of the state of the ground, she fell from her horse and suffered a catastrophic spinal injury. She is now a T11 paraplegic. 4. A Statement of Claim commencing proceedings was filed on 2 August 2012. The Statement of Claim (amended in 2018) pleads a case in negligence as well as in breach of contract. 5. Paragraphs 13 and 14 of the initiating Statement of Claim pleaded: 13 Some time during the afternoon of 8 January 2011 the Defendant was asked to stop the competition because the ground was unsafe. 14 The Defendant did not stop the competition. 1. In reply, the Defence filed on 10 June 2014 pleaded the following in response to paragraphs 13 and 14: 13. The Defendant does not admit paragraph 13. 14. In answer to paragraph 14, the Defendant: (a) admits that it did not stop the competition before the Plaintiff's accident on 8 January 2011; (b) says that an announcement was made before the Plaintiff competed to the effect that if riders wished to not participate in the event, they could do so and would be refunded their entry fee; (c) says that after that announcement was made the Plaintiff competed in the event; and (d) otherwise does not admit the paragraph. 1. In March 2018, an Amended Statement of Claim was filed that pleaded a number of additional matters including: 55. Following the bad fall of draw number 98 the Defendant was again asked to stop the competition because the ground was unsafe ("the second request to stop the competition"). 1. In its Defence to the Amended Statement of Claim, the Defendant pleaded the following: 55. In answer to paragraph 55, the Defendant: (a) admits that John Stanton approached Darren Shorten on a second occasion and said that he thought he should do something about the event because the ground in his opinion was unsafe; (b) says that Darren Shorten and another Committee member who had volunteered his time to conduct the event, Jack Callinan, instructed Jack Gallagher to temporarily suspend the competition; (c) says that Darren Shorten, Jack Callinan, Allan Young and another Committee member, who had volunteered his time to conduct the event, Wayne Smith inspected the arena and discussed whether the event should continue; (d) says that they agreed that the event should continue after an announcement was made that any rider who wished to withdraw could do so and would get their money back; (e) says that an announcement was made in those terms and that the Plaintiff heard and considered that announcement; (f) otherwise, does not admit the paragraph. 1. In February 2014, I am informed that the Defendant, pursuant to orders for discovery, provided to the Plaintiff's legal representatives an Incident Report dated 12 January 2011 headed "Ellerston District Sports Club – Incident Report". Amongst other things, that report states: … • Around 6.45pm on 8th 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. • Darren Shorten Hunter Zone Director and Allan Young MRC Chairman discussed the condition of the ground. • The event was stopped. Jack Gallagher Judge, Darren Shorten and Jack Callinan President EDSC consulted on the condition of the ground • 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. … 1. Evidentiary statements to be relied upon by the Defendant were served in or by January 2017. Three persons' statements referred relevantly to the announcement made over the loudspeaker prior to the Plaintiff commencing her ride. Colin Gallagher's Statement 1. Colin John Gallagher says in his statement dated 29 November 2016 that he was judging from the front of the campyard on the edge of the ring event, the open campdraft event having started some hours earlier: 16. Emily Tapp was the next competitor due to compete. She was on a horse in the yard. Because she was the next to go and because I knew there was to be an announcement I rode over to her. I said to her, "you had better hang on a bit, there is going to be an announcement." I rode away from her after this. 17. I then heard an announcement over the loudspeaker. The announcer said, "anyone who feels they don't want to compete can scratch and have their entry fee back". 1. Mr Gallagher also referred to the fact that prior to this announcement there had been two complaints by John Stanton, a senior ABCRA member who expressed the view that the ground was "getting pretty dangerous". There had been a pause in events and a discussion between Darren Shorten, Allan Young and Jack Callinan which resulted in a decision made to continue with one of them expressing the view, "We are running out of time and need to get through the program. If we do something to the ground, it would be unfair to the other competitors who rode on the ground earlier." and Darren Shorten saying, "If anybody does not want to ride, they can scratch and get their money back. That will be announced over the PA". Darren Shorten's Statement 1. Darren Shorten in his statement dated 30 November 2016 said as follows: 28. I said to Allan and Wayne "we will announce that if competitors wanted to scratch they would get their full entry fee back or they could compete at their own risk". I then said to Jack Gallagher "we will continue but we will make an announcement that any competitor who wishes to withdraw can do so and they will get their money back". An announcement was then made over the loud speaker. The announcement was "Any rider who wishes to withdraw from the event can withdraw and they will get their money back or riders can compete at their own risk". Nicholas Clydsdale's statement 1. Nicholas Clydsdale in his statement of 26 December 2016 said: 16. Whilst I was standing at the camp, I heard an announcement over the PA "the ground has become a bit dangerous. Anyone who wants to scratch can have their money back. Anyone who wants to ride, ride at your own risk". … The question in issue 1. Senior Counsel for the Defendant put a number of questions to the Plaintiff on the subject of the announcement made before her ride, including: Q I want to suggest to you that not long after your ride, moments or minutes before your ride, there was an announcement made which was that competitors could withdraw from their event and get their money back. Do you remember anything of that sort? … The question in issue was framed as follows: Q I wish to go further and suggest to you that in the same announcement there was a statement made to this effect: that you could withdraw, get your money back, but otherwise if you went on to compete you would do so at your own risk. 1. Objection was taken by Senior Counsel for the Plaintiff. This led to an application being made by the Defendant for leave to amend its Defence. This application, after some debate, was withdrawn. The oral submissions made in respect of that debate were carried over as submissions on whether I should allow the question to be answered. 2. Written submissions were prepared by the Plaintiff addressing the line of questioning in broad terms arguing that the question went outside the parameters of the pleadings in paragraph 14(b) of the Defence filed on 10 June 2014 and paragraph 55 of the Defence to the Amended Statement of Claim filed 12 April 2018. The Plaintiff's argument against the question being allowed 1. Following service of the initial Defence in 2014, the Plaintiff served her lay witness statements including on issues going to liability. In doing so, she relied upon the ambit of the announcement as pleaded. What was pleaded in both Defences did not extend to any suggestion that riders were warned that if they rode, they did so at their own risk. The fact that there is evidence before the Court regarding a different version of the content of the announcement (Mr Clydsdale and Mr Shorten) does not entitle the Defendant to go beyond what is pleaded, what it has asked its expert to assume, and what has been the basis of the preparation of the case to date. The Defendant's own expert Mr McLean was asked to assume the announcement in the terms as pleaded in the Defences, which reflected the recollection of the witness Mr Gallagher (i.e. with no additional warning regarding riding at one's own risk), as opposed to Mr Clydsdale or Mr Shorten's recollection of what was said. 2. It was asserted, both in written submissions and orally, that the Plaintiff's legal representatives did not pursue the detail of the content of the announcement with any other competitors or others who attended the event because the content of the announcement was pleaded in the terms set out in those paragraphs of the Defences. Because of this, the Plaintiff is now prejudiced in her defence of the case because it is seven years after the event and it is uncertain what recollections would now be still available because of the diminution of memory over time. 3. In oral argument on this issue, Senior Counsel for the Plaintiff asserted that the Plaintiff's legal representatives were entitled to ignore the contents of the statements of Mr Shorten and Mr Clydsdale on this issue because their precise wordings of the recollections were not pleaded in the Defences, and that despite those statements having been in the possession of the Plaintiff's legal representatives for over 15 months at the time the trial began, there was no obligation to investigate or deal with those asserted versions. Defendant's submissions 1. Senior Counsel for the Defendant argued that the precise words do not need to be pleaded. The matter is a question of fact. One question would be whether or not, if the statement was made, it constituted a separate warning of risk, but it could also go to the issue of answering allegations of negligence that there was a failure or inadequacy in the warnings that were in fact provided to participants. It is just a matter of fact to be weighed in the whole mix in light of other matters, including the liability waiver form which was signed by the Plaintiff. The question ought to be allowed and ought to be weighed and tested as a question of fact in the course of the hearing. 2. When the same issue came up on the first day of trial, Senior Counsel for the Defendant also submitted that there was no requirement to specifically plead the content of the warning as it was a matter of evidence. Decision 1. On 24 April 2018, Fagan J made orders that the parties provide a schedule of objections to evidence to be relied upon on or before 26 April 2018. 2. The Plaintiff prepared and served a notice of objections which did not include any objection to those aspects of the statements of Mr Shorten or Mr Clydsdale. There is no evidence before me that there was any request for particulars of paragraph 14 of the Defence or paragraph 55 of the Defence to the Amended Statement of Claim seeking further detail of the contents of the asserted announcement. In any event, such a request would be entitled to be met by a response that the precise terms of the conversation is a matter for evidence. 3. That evidence was provided not later than January 2017 in the three statements relied upon by the Defendant. Those statements have been in the possession of the Plaintiff's legal representatives for well over one year. 4. The fact that an announcement was made just prior to the Plaintiff's entry into the arena, in light of conceding two complaints had been made about the state of the ground by a senior member of the Defendant, was placed on the table as early as April 2014 when those matters were admitted and/or set out in the Defence. If it is the case that the Plaintiff's legal representatives carried out no investigation as to the content or audibility of the announcement in the ensuing four years, that is a most surprising approach to have taken. It is not the Defendant's obligation to do more than set out in its Defence sufficient facts to enable the Plaintiff to know what case she is to meet in terms of the defence raised. 5. The Defence, filed in April 2014, clearly raises that a PA announcement (and its content) is a factual issue that responds at least in part to the assertion that complaints made that the ground was unsafe, were dealt with by the Defendant in a number of ways on the day. 6. In any event, the Plaintiff's real case against the Defendant is as set out in the report of Mr Doughty. The event should never have been allowed to continue given the state of the ground, in his view. 7. Also significant to this issue is the fact that Mr Doughty, for his reports of 28 November 2014, 7 February 2016 and 28 May 2017 had been briefed with the Incident Report of 12 January 2011 referred to in paragraph [9] of this judgment which stated that competitors were offered the choice to ride under the current conditions or scratch their nominations for a full entry fee refund. He has relied on this material in coming to his view that the event should not have been allowed to continue at all. 8. The other significantly persuasive fact is that the Plaintiff did not, within the parameters of the orders made by Fagan J the week before the trial, take any objection to those parts of the statements of Mr Shorten and Mr Clydsdale as being matters outside the pleadings in the Defence, or on any other basis. 9. In those circumstances, I allowed the question to be put to the Plaintiff, and a question of a similar nature to be put in cross-examination to the Plaintiff's father, Ben Tapp. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2019