Wagga Show Society negligence lawsuit: verdict in appeal over NSW Supreme Court decision

The plaintiff, Kerrie Anne Menz, had fought a lengthy legal battle with the show society over serious injuries she sustained after falling off a horse in 2012, but lost her case in the NSW Supreme Court last year.

A bid by the show society's solicitors to recoup costs from Ms Menz has also been upheld.

Ms Menz suffered facial fractures and multiple traumatic brain injuries after the horse she was preparing to ride at the Wagga show fell on her.

She sued for medical costs and damages due to a claim that the show society had demonstrated "negligence in failing to properly supervise the arena" which enabled children to startle her horse and cause the fall.

In May last year, the Supreme Court found in favour of the show society as the risk of riding a horse in a loud and busy environment "would have been obvious to a reasonable person in the position of the plaintiff".

This month, a panel of three Court of Appeal Justices found that the Civil Liability Act's definition of "obvious risk" to the participant applied to both horse riding at the Wagga Show and sitting on a horse in the event's warm-up area, where the incident occurred.

Ms Menz's solicitors based part of their appeal on the argument that Wagga Show Society should not be protected by a clause of the Civil Liability Act that prevents a negligence claim if the defendant provided a "risk warning to the plaintiff".

The appeal argued that the Supreme Court should have applied the exemption whereby the defendant would be liable if they failed to take precautions that "a reasonable person in the person's position would have taken".

However, Court of Appeal Justice Mark Leeming found that "the claim in negligence was correctly dismissed".

The justices also found that Supreme Court Justice Geoffrey Bellew was correct to exclude the personal opinion of an expert witness who testified that "marshals should have been present and children prevented from being present" in the warm-up area.

Wagga Show Society president Bruce Ryan decline to comment as the case was being handled by the society's public liability insurer.

Ms Menz's solicitors, Commins Hendriks, did not respond to a request for comment prior to publication but in a prior statement said the appeal decision suggested anyone hurt during "dangerous recreational activity" had no entitlement to damages "even if the injury is caused by the negligence of the organisation conducting the event".