COMMONWEALTH Games silver medallist Emily Tapp has lost an appeal for damages after a horse riding fall in the Upper Hunter that left her with permanent spinal damage.
Ms Tapp was 19 years old when she fell from her horse at an Australian Bushmen's Campdraft and Rodeo Association (ABCRA) event in Ellerston, near Scone, in January 2011, leaving her a partial quadriplegic.
After losing a $6.75 million claim for damages in the Supreme Court last year, the Canberra-based athlete took the matter to the NSW Court of Appeal.
In a 2-1 split decision handed down late last month, Justice John Basten said Ms Tapp's lawyers failed to identify the cause of the fall at the ABCRA Open Campdraft event and dismissed her claim.
Further, the court found campdrafting - which involves a horse and rider working cattle - is a "dangerous recreational activity" that presents an "obvious risk".
Ms Tapp, now an Australian para-triathlete, had claimed rain in the lead-up to the event made the competition arena dangerous and the rodeo should have been cancelled after several riders fell before her.
Hunter Zone ABCRA director Darren Shorten gave evidence in the original eight-day court hearing in 2018 that he was approached by another competitor, John Stanton, who had fallen and raised concerns about the ground getting slippery.
After a meeting of organisers and a judge, a decision was made to continue.
Following a second complaint by Mr Stanton, organisers made an announcement over the loud speaker.
"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," it said.
Ms Tapp, who was the last rider to compete, was unaware the event had been suspended due to a previous fall and did not hear the loudspeaker announcement.
She was also unaware of Mr Stanton's approaches expressing his view that the competition should be stopped.
After the fall, Ms Tapp - who had competed in campdrafting since she was six years old - spent eight months in hospital and three years in rehabilitation.
"The plaintiff's claim in negligence against the organiser of the event failed on the evidence. In substance she failed to establish why her horse fell," Justice Basten said.
"It may be accepted that the horse slipped or slid, but precisely why that happened remained obscure."
A spokeswoman for Ms Tapp's lawyers, Commins Hendricks, said the decision sends a "clear message" that people involved in recreational activities should obtain their own personal injury insurance, including income protection.
She called on the NSW government to urgently revisit the issue to protect people injured through no fault of their own.
"The effect of this decision is that any person who might be injured in 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, including a failure to follow its own rules," she said.
"It has become clear that the interpretation of a dangerous recreational activity is being widely applied and could incorporate activities including common recreational activities such as bike riding, motorbike riding, horse riding, riding for the disabled, football, netball, water skiing and similar such activities."
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