Daniels v Boardman
[2015] ACTMC 3
•10 February 2015
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Daniels v Boardman |
Citation: | [2015] ACTMC 3 |
Hearing Date(s): | 1 September and 17 December 2014 |
DecisionDate: | 10 February 2015 |
Before: | Magistrate Morrison |
Decision: | [105] |
Category: | Principal judgment |
Catchwords: | CIVIL LAW – damages for personal injury resulting from kick by horse – alleged negligent control of horse ridden by defendant – whether conduct of defendant a breach of duty of care – lookout required of defendant – contributory negligence by plaintiff – assessment of damages |
| Legislation Cited: Cases Cited: Texts Cited: Parties: | Civil Law (Wrongs) Act 2002 (ACT) ss 40, 42 Civil Liability Act 2002 (NSW) s 5R Civil Liability (Animals) Act 1984 (ACT) s 6 Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 Eagle v Chambers [2004] RTR 115 Thompsonv Bankstown Corporation (1953) 87 CLR 619 J Fleming, The Law of Torts, (10th ed, Thomson Reuters (Professional) Australia Limited, 2011) Karen May Daniels (Plaintiff) Noel Frederick Boardman (Defendant) |
Representation: | Counsel Mr S Hausfeld (Plaintiff) Mr Nolan and Mr J Pappas (Defendant) Solicitors Snedden Hall & Gallop (Plaintiff) DLA Piper (Defendant) |
File Number: | CS 599 of 2013 |
The plaintiff’s claim is for damages for personal injury which she suffered as a result of being kicked by a horse under the control of the defendant.
Her claim is based in negligence.
It is not in dispute that:
a.the plaintiff was kicked by the horse and suffered injury as a result; and
b.the horse was under the control of the defendant at the relevant time.
It was not suggested in addresses that the defendant did not owe a duty of care to the plaintiff.
The defendant denies any negligence and says that if he was then any consequences for the plaintiff were contributed to by her own negligence.
There is no agreement as to quantum although there is not much by way of dispute on the evidence about the consequential effects on the plaintiff of the injuries suffered by her.
The plaintiff’s claim is governed by the Civil Law (Wrongs) Act 2002 (ACT). Relevantly:
a.Section 40 of the Act defines negligence as meaning failure to exercise reasonable care and skill; and
b.Section 42 provides that in deciding whether the defendant was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
The evidence before me on the question of liability comprises the oral testimony of the plaintiff and Ms Jeanette Evans and of the defendant as well as documentary evidence comprising some photographs and maps or sketches and an incident report.
By way of summary, the plaintiff said this in her oral testimony:
a.She is a member of the Vikings Triathlon Club. On 3 December 2011 she was out doing some cycle training with a fellow member – the witness Jeanette Evans.
b.After riding for a couple of hours she and Ms Evans decided to call it quits and make their way home. In the course of doing so they rode along what has been described as a shared use path in an area not far from the Canberra Equestrian Centre.
c.She knew the bike path was a shared path for riders and pedestrians but didn’t know that it was intended to be shared with horse riders also. She had never encountered horses before on that path –or indeed on any other path/tracks – when she had been cycling and she has no familiarity with or knowledge of horses.
d.Initially she and Jeanette were riding side-by-side and chatting. She described the speed at that point in time as being about 75% of what they had been doing before - that is the earlier training stage of the ride. She also referred to a speed of 18km/h but, as I understood her evidence, at the same time making it clear that she was not very good at estimating speed.
e.She and Jeanette met two riders coming in the opposite direction. Those riders told them that there were horses on the path ahead.
f.The plaintiff and Jeanette continued to ride on and she identified a point on Exhibit P3 as the point at which she first saw the horses. She described there being a group of horses which was spread out. She could see the tail end of the group but not the first of them.
g.She says that she and Jeanette moved into a single file formation as they approached the horses, with the plaintiff in the lead. When asked about her speed in the approach to the horses she said “I would say 10 to 12 km an hour, which would have – would be a slow jog pace”.
h.I take the opportunity to comment here that it is obvious that a speed of 10 to 12km/h is faster than a slow jog place. Given the notorious difficulty which witnesses have with estimating speed, I regard that part of the plaintiff’s description which refers to the slow jog place as being a more reliable indicator of the speed than her attempt at assessing kilometres p/h.
i.When asked what she did when she saw the horses she responded by saying “we were still slowing because the horses were actually on the bike path so we couldn’t – we just had to ride slowly as they were moving off the path”.
j.She rode in the middle of the bike path – saying that she did so because there were horses on each side of the path.
k.She marked the position on Exhibit P3 where she believed she was when she was kicked by the defendant’s horse. She said that she thought she had passed some five other horses prior to being kicked, and she drew a diagram indicating the position of them and of the defendant’s horse when she was kicked. That diagram became Exhibit P4 and shows horses to both the left and right of the pathway.
l.The diagram also shows the defendants horse as being angled slightly away from the line of the pathway in the direction of travel.
m.As she and Jeanette approached, the horse rider at the back of the group called out “Riders coming, riders coming. Move off the path” and that the horses started to move off the path.
n.She said that the horse which kicked her was at that time moving off to the left of the path. That is consistent with her diagram of the position of the horses which is Exhibit P4.
o.She says that she was approximately 2 metres from the back of the horse when she was kicked. She says she remembers the horse turning its head and looking at her – she described it in terms of “That’s the last thing I remember, this eye just glaring at me”. T35.
p.She goes on in her evidence to say that she recalls then being on the ground in a lot of pain and hearing her friend Jeanette as well as somebody else who said they were a paramedic.
In the course of cross-examination it was suggested to the plaintiff that what she had heard from the horse rider at the rear of the group was in fact a warning to her. She denied that was the case – reiterating that it took the form of an instruction to the other horse riders. Later in the course of cross this was put to the plaintiff:
I suggest to you that the person who was at the rear of the pack warned yourself and Jeanette, “There’s cyclists. Just slow down....
Again the plaintiff responded by saying that what she heard was in the form of an instruction to the other horse riders to the effect of “Riders coming, riders coming. Move off the path.” T52.
The plaintiff repeated under cross-examination that she had ridden along the pathway where the incident occurred many times but that she had never encountered horses there before. She was asked whether she accepted that horses are sentient creatures and are prone to lashing out if something comes up behind them. She replied by saying that she hasn’t been around horses and that she wasn’t aware that she was in danger.
Various questions were asked in cross-examination about the plaintiff’s recollection of the point on the path where she had been kicked and the proximity of a storm water drain crossing under the path which is shown in the exhibited material. The plaintiff said that she was unaware of the storm water drain.
It was put to the plaintiff that as she travelled through the group of horses she was still in training mode and travelling at a speed of at least 25 to 30km/h. She denied that was the case.
The plaintiff said under cross-examination that there was no noise coming from her bike at the time. She was asked if she had considered whether coming up behind a horse going along a verge near a culvert would spook or scare the horse. She responded by saying “I wasn’t travelling fast and I didn’t know there was a verge or a drain ahead”.
In re-examination the plaintiff said that she recalls seeing a horse which was in front of that which kicked her. She had depicted the horse which kicked her as being quite close behind it. In re-examination she said that there was less than half a horse length between the head of the horse which kicked her and the rump of the horse in front of it. She said that she was riding in the middle of the bike path when kicked.
In her testimony Ms Jeanette Evans said that she engaged in regular training and social activities with the plaintiff. She said the bike she was riding on the day of the incident had a ride computer fitted which measured speed. In summary her evidence in chief was as follows:
a.She and the plaintiff decided to take a leisurely ride home on the bike path after completing their training. She said their speed on the path was between 10 and 14km p/h.
b.They encountered other riders coming in the opposite direction on the path who told them there were horses ahead.
c.She and the plaintiff had been riding side by side but they moved to single file with her in the rear. She went on to say “We were a bit apprehensive, may have slowed”.
d.She was about seven bike lengths behind the plaintiff when they saw the horses. She heard a male voice saying that it was clear, to keep coming through.
e.She was asked whether she changed the way she was riding at that time and she replied by saying “We slowed”. When asked to clarify what she meant she said that she slowed down and that the distance between her and the plaintiff did not change. She said that her speed was very slow – under 10km p/h and maybe even down to 7km p/h.
f.There were horses on either side of her as she proceeded and there were horses in front of her which she recalls were moving off the track. The closest of the horses she passed were a couple of metres from her. She described those horses as facing out to her side.
g.She did not see the plaintiff kicked and she did not see the horse which kicked her because she was looking down at the path. When she looked up the plaintiff was lying on the concrete path.
Under cross-examination, it was put to Ms Evans that while on the path she was travelling at a speed similar to that travelled at on the roads. She denied that to be that case. It was also put to her that when she slowed down on approach to the horses the plaintiff continued at a higher speed. Ms Evans said that was not her recollection. She said that she and the plaintiff had never before encountered horses on their rides.
Under cross-examination it was suggested to Ms Evans that one horse rider in the group had said to her and the plaintiff “Slow down. Horses ahead”. Ms Evans said that was not the case – that the rider had said words to the effect of “It is clear to come through” and that she would have responded by saying “Thank you”.
I turn to the evidence in the defence case.
In his evidence-in-chief the defendant said that on the day of the incident he was riding his horse “Macca” as part of an organised ride with the Cumberland Trail Horse Association.
His evidence-in-chief can be summarised as follows:
a.He is now 69 years of age. He has had experience with horses on and off since he was 8 years old.
b.Macca was a horse with a quiet temperament and was not difficult to control. He is an Australian Stock Horse, 15.2 hands high and was 5 years old at the time. On the day he was using a standard saddle, bridle and bit. He had never known Macca to kick before the day on which he kicked the plaintiff, and he has not kicked out since.
c.Immediately prior to the incident he was riding Macca on the grass verge close to the road and as he approached the culvert he came down from the roadside towards the path. He said that his horse was not shod and so he wanted to avoid walking on the path. He planned to cross the culvert at the very edge of the path – just off the bitumen.
d.The first indication he had that Macca was about to kick was when he felt the horse “...rise up and hump up”. He heard a noise, looked around and saw the cyclist on the ground and moved away so there would be no more interaction.
e.He described the action he felt in these terms:
Q – Rise up. What do you mean by that?
A – When a horse is in fear, he will arch his back and then he will lash out when he's under pressure.
Q – Is that something you felt?
A – I felt that. I felt him rise up and lash out.
Q – Relative to the turning around and seeing the woman on the ground, how long before - between the two incidents?
A – It was instantaneous. He kicked. I moved straightaway.
Q – Did Macca move backwards before he did that?
A – In my recollection, no.
Q – Do you recall if he turned his head before he did that?
A – No, I don't.
Q – After the rising up and what we now know to be a kick, did you turn Macca's head?
A – No. I moved him away from the accident.
f.He had seen other cyclists that morning travelling in the opposite direction. His horse had not reacted to the presence of those other cyclists.
g.Prior to feeling his horse kick he did not hear any words spoken or anything that might have directed his attention to the rear.
Under cross-examination the defendant agreed that horses are much less likely to become frightened or spooked when approached from the front.
He said that he lived in Camden in New South Wales and was not particularly familiar with the route taken on the day. A safety briefing had taken place at the Canberra Equestrian Centre before departure and that briefing included reference to the fact that they would be riding on a shared use path and a warning that pedestrians or cyclists might be encountered.
Under cross-examination the defendant agreed that as a member of the Cumberland Trail Riders Association he had undertaken to adhere to the Australian Trail Horse Riders Association Code of Conduct. He was shown a copy of the Code and asked about an ATHRA rule requiring that horses be kept out of kicking distance of other horses. He responded by saying:
That's the general knowledge that you do not put yourself in any danger whatsoever, or anybody else, if you know there's a danger there.
He went on to say:
I appreciate that if you keep your animal away from other people and other horses, but if you know they're there you can do that, but if you don't, you can't do it.
Further cross-examination took place about keeping a horse out of kicking distance by way of the following exchange:
MR HAUSFELD – You mentioned that, I don't want to misquote you, but I think you said it's commonsense or general knowledge that you stay out of kicking distance of horses?
A – Yes.
Q – That's because a horse that kicks someone can cause considerable damage, can't it?
A – Yes.
Q – In terms of commonsense or general knowledge about it, it's something that horse owners and riders are quite well‑schooled in?
A – Yes.
Q – Indeed, you are well-schooled in that?
A – I realise that could happen.
HIS HONOUR – Sorry, what was your answer?
A –I realise than can happen.
MR HAUSFELD – You understood that in December 2011, didn't you?
A – Yes.
Q – So if you're on a horse, it's going to be important to keep your horse out of kicking distance of any people, isn't it?
A – Yes.
Q – Indeed, as part of your being in control of your horse, you should place it so that it isn't in a position to kick someone?
A – Yes, I should; but I have never placed my horse in position where it would kick.
Under cross-examination the defendant was also asked about a point in time earlier in the day when cyclists had been encountered. He said that at that time the horse riders stopped to let the cyclists pass. He said that the lead rider had pulled up the group at that time. That evidence gave rise to the following exchange:
Q – Is that part of the usual protocol, that the lead rider makes that decision, that determination?
A – Yes. We have control riders through the group, front and rear, to control the riders; people who have been accredited through ATHRA to handle horses and take control of situations on rides.
Q – It would be fair to say that if there's, as it were, oncoming issues, issues coming in front the front of the horses, the lead rider would indicate what to do about that?
A – Yes.
Q – If there's something coming from behind the horses, the drag rider (at) the back of the track will do something about that?
A – Yes.
Q – So in terms of riding in a group, you have got to pay attention to both the lead rider, and you have also go to pay attention to a drag rider?
A – Yes.
HIS HONOUR – You're using the expression "drag rider", is that commonly how that control rider ‑ ‑ ‑?
A – That's the term, the word for the last person on the ride.
The defendant went on under cross-examination to say that he heard nothing said by anybody in the lead up to his horse kicking out and that he was unaware of the presence of the plaintiff on the path to his rear.
The following exchange then took place:
Q – How do you keep track of the drag rider and what ‑ ‑ ‑?
A – That - I wasn't in control of the ride. That wasn't my job. It was - I was out there recreationally. I was in control of my horse. I wasn't in control of what was happening behind me.
Q – You agreed with me earlier that when you're out on a ride like that, that the front rider lets the group know what's building up, things oncoming, as it were?
A – Yes.
Q – And the drag rider lets the group know things that are coming from behind?
A – Yes, but ‑ ‑ ‑
Q – I thought you had agreed with me that when you're out on such a ride, as a rider doing a recreational ride and somewhere in the middle of the group, you have to pay attention to the front rider?
A – Sometimes the back rider is too far back and I can't hear.
Q – Is that because you have a particular hearing problem?
A – I don't have a hearing problem.
Q – So how did you monitor while you were riding along what the drag rider was doing?
A – I didn't.
The defendant went on under cross-examination to say that he walked his horse down to about a metre from the path. He was asked whether he took any action to ensure that he wasn’t putting his horse close to someone else and the following exchange took place:
A – I didn't - wasn't close to anybody. We were just walking along beside the path.
Q – So you didn't look behind?
A – No.
Q – You moved down closer to the shared pathway?
A – Yes.
Q – And you didn't look behind?
A – Correct.
Q – Why didn't you just stop your horse?
A – Because I was - there was no danger. I was moving forward. There was nothing in front of me.
The defendant said that his horse did not pin its ears back or raise its head or snort prior to kicking out. He was cross-examined about action he might have taken at that time but his evidence was that there was only a very brief period of time between when the horse arched its back and when it kicked out – leaving no time for him to react.
The defendant said that his horse was walking slowly forward immediately prior to kicking out. There were other horses nearby but as I understood the defendant’s evidence he conceded that nothing would have prevented him from steering his horse further away from the bike path had he wished to do so. He also conceded that there was room beside the path for horses to be at a distance where they would not kick anybody on the path.
He again said under cross-examination that he didn’t know that the plaintiff was where she was – adding a comment – “I can’t see behind me”.
The defendant described how he had steered his horse at an angle down the sloped verge and towards the path as he approached the culvert. He said he had arrived at a position about 1 metre from the path but did not know how long he had been at that distance before his horse kicked out – saying that he couldn’t say whether it was 10 metres or 1 metre. He said that he did not look behind him at all when he was steering his horse down towards the path.
In re-examination the defendant said that there was not time for him to do anything after feeling the sensation of the horse rising up before kicking out. There were some exchanges at this point about the nature of the evidence given by the defendant on this subject. Nothing turns on that for present purposes.
No other witnesses were called in the defence case.
There are some facts in dispute about which I should record findings.
The first is as to the speed of the plaintiff and her riding companion Ms Evans. Several propositions about speed were put or suggested to them, but there is no evidence from any defence witness about their speed. The evidence of the plaintiff and Ms Evans was largely consistent and I have no reason to doubt their truthfulness. I treat the plaintiff’s assessment of her speed as being at a slow jogging pace as being a more reliable indicator of her speed than her attempt at expressing it in kilometres p/h. What constitutes a slow jogging pace is closer to the speed identified by Ms Evans when she said in her evidence that they were travelling at about 7 kph. I accept the evidence of Ms Evans that the distance between her and the plaintiff remained the same and I find that was the speed of both riders at the relevant time was about 7 kph.
The testimony of the plaintiff and Ms Evans about what was called out by a rider towards the rear of the group of horse riders was also challenged in cross-examination. No defence witness was called to give evidence contradicting the evidence of the plaintiff and Ms Evans. Again I have no reason to doubt their truthfulness. Their evidence was not identical but nothing turns on that for present purposes. The plaintiff was in a position closer to the rear of the horse riders when the words were spoken and that persuades me that her version is more likely to be accurate. I find that a rider towards the rear of the group of horse riders called out to the other riders in front words to the effect of “riders coming – move off the track”.
There is some dispute on the evidence about the direction in which the defendant’s horse was facing immediately before and at the time of delivering the kick to the plaintiff. As I understood her evidence the plaintiff says that she thought the horse was angled slightly away from the path. The defendant says that he had steered his horse towards the path before the incident and that it was then travelling parallel to the path. In his evidence he gave reasons for doing so and for not walking his horse on the path itself. I accept the testimony of the defendant about those things. To the extent that it differs from that of the plaintiff I do not conclude that the plaintiff is lying – rather that perception of what would have been in any event only a slight difference in the direction of travel of the horse was probably affected by the circumstances, including the trauma of subsequently being kicked.
I also make find the following findings:
a.the point at which the plaintiff was kicked was a point on the path which was leading up to the culvert identified in the photographs;
b.the plaintiff was unaware of the existence of the culvert;
c.the plaintiff is not a person who is familiar with horses and has never before encountered horses while riding in that area;
d.there was nothing preventing the defendant from bringing his horse to a halt and/or from walking it away from the path in the period of time leading up to the plaintiff being kicked.
The law to be applied in determining the issue of liability in this case is the general law of negligence as set out in the Civil Law (Wrongs) Act 2002 (ACT) in this jurisdiction. As the defence submissions point out, various historical common law rules relating exclusively to liability for damage have been abolished in the Territory by virtue of the Civil Liability (Animals) Act 1984 (ACT).
The plaintiff says that the defendant was negligent in failing to take a range of precautions as set out in paragraph 26 of the summary of submissions. In oral submissions counsel for the plaintiff expanded on those submissions to include a submission that the defendant was negligent in failing to, in effect, keep a proper lookout – pointing to the evidence of the defendant himself that he did not look rearward while riding – and in particular when steering his horse closer to the path.
The defendant’s submissions are to the effect that the plaintiff’s claim must fail because the evidence does not establish any negligence on the part of the defendant. Mr Pappas points to the defendant not being aware of the presence of the plaintiff and to there being no history of his horse kicking out on any other occasion.
As to the submission that the defendant did not keep a proper lookout, the defendant says that the plaintiff’s claim is not pleaded on that basis and further, as I understand the submissions, that the evidence does not establish the point in time at which the defendant steered his horse nearer to the path vis-à-vis the point in time at which the plaintiff was kicked. The effect of that submission, as I understood it, was to argue the lack of any causal connection between the alleged negligent conduct and the injury.
Negligence is defined in section 40 of the Civil Law (Wrongs) Act 2002 (ACT) is uncontroversial terms as meaning a failure to exercise reasonable care and skill. The Act goes on to say (section 42) that in deciding whether a person is negligent, the standard of care required is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
I do not agree with the defence submissions that the evidence does not establish negligence on the part of the defendant.
Mr Hausfield for the plaintiff referred me in general terms to the range of authorities referred to in Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436. That case involved a horse related accident but I am referred to it more for the broad statement of principle illustrated by the reference to the extracts from the decisions of the High Court in Thompson v Bankstown Corporation (1953) 87 CLR 619 in the following terms:
It has been emphasized repeatedly in recent years that when a duty of care exists, the degree of care which is reasonable varies directly with the risk involved and the risk involved includes both the risk of an accident happening and the risk of serious injury if an accident should occur.
It is common knowledge that horses are large and powerful animals and that a kick from a horse can cause serious injury or death.
As to the standard of care required of the defendant it is apparent that he knew that the path was a shared one. The pre-ride safety briefing had expressly warned that cyclists might be encountered, and indeed cyclists had been encountered earlier in the ride – travelling in the opposite direction on the path. On that occasion the lead horse rider had stopped the other horse riders to allow the cyclists to pass. The defendant must have known that cyclists might also be travelling in the other direction – that is to say in the same direction as that in which the horse riders were travelling. The horses were travelling at a walking speed and the defendant must have known that any cyclists travelling in that direction on the path would therefore need to overtake the horse riders.
I accept the evidence of the defendant that his horse had no history of kicking out. Nevertheless, in response to a question about the ATHRA rule about riders being required to keep their horses out of kicking distance of other horses, the defendant’s evidence was – that’s general knowledge that you do not put yourself in any danger whatsoever, or anybody else, if you know there is a danger there”.
I have treated the defendant’s evidence on that point as a statement of common sense – recognising that there is always a risk that any horse will kick out in the right circumstances- or perhaps more properly put as being in the wrong circumstances. The defendant also acknowledged in his evidence the increased risk of a horse being spooked when approached from behind.
The defendant’s knowledge of that risk coupled with his awareness that the path may be used by cyclists approaching from the rear logically required the defendant to take care about the proximity of his horse to the path when cyclists were present.
I infer from the defendant’s testimony and the photographs in evidence that when his horse was towards the upper part of the sloping verge it was at a distance which would have prevented it from kicking a cyclist on the path. The defendant however steered his horse to a position closer to the path and which self evidently brought it to within kicking distance.
The defendant took no steps to check for traffic from behind on the path before moving his horse to within kicking distance of the path and, having brought his horse to within kicking distance he did not then maintain any check for traffic from behind on the path.
In his evidence the defendant acknowledged the need to pay attention to both the lead rider and the drag rider when riding in a group but it is clear from his own testimony that he did not do so. As a result of failing to pay attention to the drag rider he did not hear the shouted warning of the approach of the plaintiff.
As I have already indicated it is apparent that there was nothing preventing the defendant from moving his horse further away from the path had he chosen to do so. That may have required him to turn the horse because of the presence of the culvert but there is no suggestion that he could not have done so. Had the cyclists been observed (either because of the riders own lookout or as a consequence of the shouted warning) a reasonably careful rider would have taken action to move the horse away from the path and out of kicking range. Such action would have prevented the injury to the plaintiff.
To the extent that there is evidence of another horse in front of, and close to, that ridden by the defendant, there is no suggestion that that horse had moved backwards towards the defendant’s position. The defendant had ridden his horse into close proximity to that in front. To the extent that the presence of the horse in front limited the defendant’s options about manoeuvring his own horse it was his conduct in bringing his own horse into close proximity of that in front which produced that result.
I find that the defendant was negligent in his control of his horse for the reasons just given.
As I understood the defence submission about causation, it was directed to the suggestion that the defendant was negligent because of the failure to look behind at the time of moving towards the bike path. That is one of the bases on which I conclude that he was negligent and so I will address the issue of causation flowing from that finding.
The defendant’s evidence as to how long it was before his horse kicked out that he moved into that closer position beside the path suggests a range of between 1 and 10 metres travel distance for his horse. Given the slow jogging pace of the cyclists (which I have found) and the distance over which the horse riders were spread, I think it likely that, had the defendant looks to his rear before or at the time of undertaking that manoeuvre he would have seen the cyclists somewhere to his rear. A careful rider having made that observation would not have then continued with the manoeuvre to move his horse to within kicking distance of the path. It follows that there is a causal connection between the defendant’s failure to look behind him and the injury suffered by the plaintiff.
I place on record that I have considered the requirements of section 43 of the Civil Law (Wrongs) Act 2002 (ACT). For the reasons already given I am satisfied that the risk of harm to the Plaintiff was foreseeable, that it was not insignificant and that a reasonable person in the defendant’s person would have taken the precautions indicated.
I do not accept the defendant submission that the plaintiff’s pleadings prevent a finding of negligence on the basis upon which I have found that it exists. It is correct that the pleadings do not expressly identify failure to keep a proper lookout as a separate particular of negligence but such a submission can hardly come as a surprise to the defendant in the circumstances. To approach the pleadings otherwise is to adopt a narrow and pernickety attitude to the pleadings not consistent with the modern approach to litigation.
I turn to consideration of contributory negligence. The plaintiff’s evidence was that she was not familiar with horses, had not encountered them before while riding in that area and did not realise that she was in danger.
In this jurisdiction contributory negligence is dealt with under section 102 of the Civil Law (Wrongs) Act 2002 (ACT) which provides as follows:
(1) If a person (the claimant ) suffers damage partly because of the claimant's failure to take reasonable care ( contributory negligence ) and partly because of someone else's wrong—
(a) a claim for the damage is not defeated because of the claimant's contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant's share in the responsibility for the damage.
The section is expressed in terms which involve a discretionary determination of the relative fault of both the plaintiff and the defendant – see Eagle v Chambers [2004] RTR 115.
It is also expressed in terms which direct attention to the parties’ share of responsibility for the damage as opposed to e.g. share of responsibility for the incident giving rise to the damage.
The distinction is succinctly dealt with in J Fleming, The Law of Torts (10th ed, Thomson Reuters (Professional) Australia Limited, 2011) at paragraph 12.70 in these terms:
What it must mean is that weight be given to the comparative gravity of the risk that each party created. In situations, for instance, where even slight negligence is fraught with exceptional peril to others, the main blame must fall on him who created that danger or brought to the accident the dangerous subject matter, since he was in a sense master of the situation.
And later in that same paragraph:
This consideration in large part explains why, in claims by pedestrians injured by negligent motorists, a heavier share of responsibility usually falls on the motorist although the degree of carelessness by each may have been roughly equal. As Handley JA remarked in Talbot-Butt v Holloway “a driver [is] in charge of a machine that [is] capable of doing great damage to any human being who [gets] in its way” whereas a pedestrian usually “pose[s] no danger to anyone but [him or herself]”.
[footnotes omitted].
The position of a horse rider and a cyclist on a shared path is not the same as that of a motorist and a pedestrian. The principle just referred to does however apply to a lesser extent.
What is required of me is a determination of what is a just and reasonable reduction in damages having regard to the plaintiff’s share of responsibility for the injury she suffered.
I accept the plaintiff’s testimony when she says that she had not encountered horses on the path before and that she was not aware that she was in any danger at the time. I have however proceeded on the basis that contributory negligence is to be determined by reference to an objective standard of reasonableness. I don’t understand the plaintiff submissions to be pressing that any other approach is appropriate, although I note that there does not appear to be in this jurisdiction any express statutory direction to apply an objective standard such as appears e.g. in section 5R of the Civil Liability Act 2002 (NSW).
As I understand the defence submissions on contributory negligence they are that even accepting that the plaintiff may not have been familiar with horses, a reasonable person would have known that horses sometimes kick and can be easily startled and would have therefore recognised the risk to her own safety associated with her approach to the animal from behind.
The plaintiff submissions are that any contributory negligence was minimal. The submission points to the plaintiff keeping to the centre of the path, slowing down and not being able to take her bike off road. It also refers to her lack of familiarisation with horses and what appears in the written outline of submissions as “she could not monitor warning signs of horse or control it”.
What might have been added to that list by the plaintiff is that I have accepted her evidence that a member at the rear of the group horse riders called out words to the effect of “riders coming – move off the track”. It is appropriate that what constitutes reasonable conduct on her part is to be assessed against a background that includes that those words were spoken to her and her companion by a horse riding member of the group being passed.
The written outline of the plaintiff’s submissions poses the question – what was it Ms Daniels was supposed to do differently?
I expect that the question was intended rhetorically with the intent that it permits of only one answer – that is that there was nothing that the plaintiff could have done differently.
I do not agree with that proposition.
The proximity of the defendant’s horse to the path was obvious to the plaintiff. I accept the defendant’s submission that a reasonable person would have recognised the risk of bringing himself or herself into kicking distance of the rear of a horse, especially when approaching it from behind on a bicycle. A reasonable person would recognise that risk regardless of what had been called out by some other member of the group of horse riders. What was reasonably required of the plaintiff was that she not bring herself within kicking distance of the rear of the defendant’s horse in the course of passing it via the path. That may have required of her that she slow or stop her cycle to wait until she could proceed without being within kicking distance of the defendant’s horse. It may have required of her that she take steps to ensure that the defendant was aware of her presence. Those things are not an unduly onerous or unreasonable requirements for her to have taken for her own safety despite the path being a shared use path. Her failure to do so persuades me that she shares in responsibility for the injury she suffered. In the circumstances I asses her contributory negligence at 30%.
I turn to the question of quantum.
The plaintiff does not remember being hit by the kick of the horse. The first thing she remembers is lying on her side on the bike path with a lot of pain in her left side. She has a recollection of being wheeled along the path by ambulance officers, and of being in an ambulance. Her next recollection is of being in the emergency department with a neck collar having been placed on her.
The photographs which are Exhibit P9 were taken while the plaintiff was in the emergency department. One of them shows the obvious bruising and abrasion on her left hip at the site of where she was kicked.
The plaintiff remained in hospital overnight. She was experiencing headaches and hip pain and a number of scans were undertaken. Her cycling helmet had been cracked in 3 places – she presumes from the impact between her head and the path after she was kicked. She was released from hospital at 2:00pm the following day.
The medical evidence from both plaintiff and defendant was in written form and was admitted into evidence without any expert witness being required for cross examination. On my reading of the medical evidence:
a.The scans which took place when the plaintiff was in hospital and subsequently revealed no abnormalities attributable to the incident on 3 December 2011, other than what is described as subtle bone bruising;
b.She saw her GP – Dr Doumani – on 8 December 2011. She was referred to a sports physician – Dr Karen Bisley; and to a physiotherapist. She has also been treated by a chiropractor;
c.Her injuries are described by Dr Stubbs in Exibit D1 as a mixture of bone bruises and soft tissue injuries in the region of the left hip.
d.Dr Stubbs says that the plaintiff’s prognosis is excellent and he doesn’t think that further treatment will be of any benefit to her.
It is not in dispute that the plaintiff is a very fit and active woman. She is 54 years of age and was just short of her 51st birthday at the time of the accident. She regularly competes in triathlons, fun runs and in the monthly runs of the ACT Veterans’ Athletics Group. She was described in some of the medical material as an elite athlete. She said that she did not regard herself as an elite athlete – and that the description came from people being in awe of anyone doing the three events forming the triathlon.
An indication of her level of fitness and athleticism can be gleaned from her pre-accident competition in what are called “half ironman” events, which involved competitors undertaking a 1.9 km swim, a 90km bike ride and a 21.1km run. She said she had completed such events in 6 hours and 15 minutes.
She started doing triathlons in 2004 or 2005. Prior to her injury she competed in 3 or 4 such events every year as well as about 10 of what she described as the monthly veterans handicap runs. She normally trained for 7 or 8 hours each week spread over 5 or 6 days – usually with other members of the Vikings Triathlon Club.
Prior to the accident on 3 December 2011 she was feeling strong, had no injuries and in particular had no pain in her left hip.
The plaintiff could not return to her training for a period of 4 to 6 weeks after the accident. When she did return, she did so at a slower pace. She found that she could not complete all her training sessions because of pain in her hip. She started getting back to normal training in October 2012 – some 10 months after the accident – although she did compete in a team event in February 2012. That was a 20km run which she was able to complete but which caused soreness and sharp pain in her left hip. Other symptoms at that time included occasional shooting pain in her groin and the back of her knee.
She experienced chronic pain by way of a dull ache in her left hip – rated as being between three and four on a scale of 1 to 10 – until about June 2013. During that period doing certain things would tend to aggravate the pain and make it much sharper. Those things included cycle training and running. She rated the sharp pain as being at a level of 8 out of 10.
She described the injury as having minimal effect in her swim training.
She described frustration at this time as a result of not being able to compete at a level and intensity she wished to.
Since about June 2013 the dull hip ache has become intermittent and the occasions of sharp pain have become less frequent. She is now able to finish training sessions but there are still times when the dull ache present. At the date of the hearing she had not experienced the sharp pain for quite a few months.
She did not take part in the Canberra Half Ironman in December 2011 because of her injuries, but she was able to compete in and complete the 2012 and 2013 Canberra half ironman events. During the 2012 event she experienced left hip pain. She recovered from the usual muscle soreness within two or three days but the hip pain lingered.
She has undertaken treatment by way of physiotherapy and seeing a sports medicine practitioner as well as her general practitioner and a chiropractor. Before any event she takes ibuprofen - an anti-inflammatory – and during events she takes Panadol. She also takes Panadol on an ad-hoc basis when her hip pain flares up.
In terms of her current symptoms she described an intermittent dull ache to her hip. The pain is noticeable when she is training, when she is competing, driving a vehicle and sometimes when sleeping on her left hand side. Just getting out of the shower can have an effect on her hip. Three or four times a month she takes Panadol to ease the pain. When the pain flares up it is rated at three or four out of a scale of 1 to 10. She currently sees a chiropractor once a month at a cost of $50 per session. The chiropractic treatment eases the pain at least initially.
Under cross-examination the plaintiff described her current arduous training regime and agreed with the proposition that she was fit.
Under cross-examination she also explained how she initially went back to training in mid January 2012 but discovered that she could not train as well as she liked because of the hip pain. On advice from the sports medicine practitioner she did no running between July 2012 and October 2012.
The plaintiff disagreed with the proposition that problems associated with her left hip were as much age and training-related as they were related to the accident. Certainly the overall tenor of her testimony was that the various problems she described did not exist prior to the accident.
I accept the plaintiff’s testimony as to the consequences of her injury. She is obviously a very fit woman and determined to continue to train and compete despite her hip pain. I certainly did not get any impression that the plaintiff was over-stating the effects of her injury.
The plaintiff has not allowed the pain to her hip to prevent her from engaging in her training and competition. No activity was identified in the evidence as being no longer able to be pursued by the plaintiff because of her injury. However she has a busy and active life and her training and competing is now accompanied by pain and discomfort and the need at times for the use of anti-inflammatory drugs and analgesics. Other ordinary life activities also occasionally cause pain calling for the use of painkillers. Compensation is not to be approached on the basis that she has been prevented from engaging in any activity but rather on the basis of suffering pain and discomfort and correspondingly some reduced enjoyment from what are important physical activities in her life as well of course for the more significant short term impact of her injuries in the immediately post accident period.
I assess general damages at $25,000 – apportioned as to $15,000 to the past and $10,000 to the future producing an allowance of $900 for interest.
I assess past out of pocket expenses at the agreed amount of $3,614, which includes interest.
I assess past economic loss at the agreed amount of $1,500 including interest.
As to future treatment, I accept that the plaintiff continues to use the services of a chiropractor and gains some pain relief from doing so and that she reasonably has an ongoing need to use anti-inflammatory and analgesic medication. That need is largely but not exclusively related to her ongoing active physical training and competition. At age 54 she has a life expectancy of about another 30 years. It is unlikely that her current level of physical activity will continue for all of that time but I accept her history to date is an indicator that she is likely to be active for longer than others who are not as fit. Of course even very fit persons who are active tend, as they grow older, to experience age-related pain whether they have old injuries or not. I allow future expenses for chiropractic treatment and medications at $18 per week for 10 years reduced by 15% for vicissitudes, rounded to a total of $7,000 applying the 3% tables.
The total comes to $38,014.00 before apportionment reduced to $26,609.80 for contributory negligence.
I give judgment for the plaintiff against the defendant for $26,609.80.
I certify that the preceding one hundred and four (105) paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Gabrielle Munro
Date: 10 February 2015
Counsel for the plaintiff: Ms S Hausfeld
Solicitor for the plaintiff: Snedden Hall & Gallop
Counsel for the defendants: Mr Nolan and Mr J Pappas
Solicitor for the defendants: DLA Piper
Date of hearing: 1 September 2014 and 17 December 2014
Date of decision: 10 February 2015
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