Wagga Show, Kerrie Anne Menz: NSW Court of Appeal upholds dismissal for damages claim for severe brain injury
The NSW Court of Appeal has upheld a dismissal of a woman’s attempt to sue the Wagga Show Society after her horse fell on her when a loud noise spooked it.
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A woman has lost her bid to overturn a court decision rejecting her negligence claim against the Wagga Show Society after she sustained a severe traumatic brain injury that now affects her everyday life.
On Tuesday, the NSW Court of Appeal unanimously dismissed Kerrie Anne Menz’s appeal after the Supreme Court rejected her claim for negligence and damages assessed to be nearly $500,000.
Court documents state in September 2012 at the Wagga Show, Ms Menz was on her horse, Sonny, when it was startled and landed on her while warming up for an equestrian event.
At the time of the incident, children were playing near the warm-up area where they banged their heels on a metal sign on a fence that caused a loud noise that spooked the horse.
Ms Menz was taken to Wagga Base Hospital before being transferred to a Sydney hospital.
Among her injuries was a severe traumatic brain injury, fractured ribs, a broken collarbone, injury to her lower spine, and blindness in her right eye.
She has no memory of the incident and her injuries have also caused a general decline in her intellectual skills.
Negligence claim lost
A four-day hearing was held in September 2018 and in May 2019, NSW Supreme Court Justice Geoffrey Bellew found in favour of the show society and ordered Ms Menz to pay the society’s legal costs.
Ms Menz alleged the society breached its duty of care, which consisted of a failure to station marshals near the warm-up area to exclude and/or supervise children and thereby prevent unexpected noises.
The society did not dispute that it owed a duty of care, but it denied a breach of duty as Ms Menz had signed a “participant’s indemnity and waiver” form before entering the show.
Justice Bellew rejected Ms Menz’s claims because her injuries were the result of an obvious risk of a dangerous recreational activity — such that the society was not liable in negligence.
He also found Ms Menz had not shown the society should have taken the precaution of stationing marshals near the warm-up area.
“The risk of serious injury resulting from a horse being spooked is continually present, regardless of whether a horse is being ridden in a warm-up exercise or in an event or competition,” Justice Bellew said.
“The risk of a horse being spooked was obvious to a person of her experience.”
Decision appealed
Ms Menz challenged Justice Bellew’s decision, contending he erred in characterising the risk of harm as an “obvious risk” and in finding that she was engaged in a “dangerous recreational activity”.
Ms Menz also contended he erred in finding the society had not breached its duty of care.
“It was the risk of a noise not normally associated with the show that could have been prevented by the show exercising proper control of a perimeter adjacent to a warm-up ring designated for horses,” she said.
The society stated there was always and inevitably the possibility of a large animal with a mind of its own being spooked by some stimulus.
On April 21 after a hearing in March, Justices Mark Leeming, Anthony Payne and Richard White of the Court of Appeal held that Justice Bellew was correct in finding Ms Menz’s injury was due to an obvious risk of a dangerous recreational activity.
Justice Leeming said it was not “sufficient” to conclude that a reasonable person in the society’s position would have taken a marshal from somewhere else at the showground, or found another volunteer if one could be found, and placed them near the entrance to the oval’s entry near the warm-up area.
“Further, a horse could be spooked by a dog barking or a car backfiring. Still further, the horses were being warmed up to compete in rings or in the showjumping area before a crowd of people who would not be expected to be silent and motionless,” he said.
The court also found in favour of the society’s application to recover costs from Ms Menz after it made three offers of compromise in 2016-18, with the third being to pay Ms Menz $673,500 and costs.
They had expired with Ms Menz arguing she was not in a position to consider any of the offers because the society had repeatedly failed to provide expert liability evidence in time.
However, the court found that there was nothing preventing her from properly consideraing each offer.
Call for changes
In a statement, Commins Hendriks, which represented Ms Menz, said the effect of this decision is that anyone injured while participating in a dangerous recreational activity has no entitlement to damages “even if the injury is caused by the negligence of the organisation conducting the event”.
“It has become clear that the interpretation of a dangerous recreational activity is being widely applied and could incorporate activities including common recreational activities,” the statement reads.
The Wagga Show Society and its legal counsels have been contacted for comment.