Elly May Paton v Bronzewing Bloodstock Pty Limited
[2015] NSWDC 54
•24 April 2015
|
New South Wales |
Case Name: | Elly May Paton v Bronzewing Bloodstock Pty Limited |
Medium Neutral Citation: | [2015] NSWDC 54 |
Hearing Date(s): | 30 March – 2 April 2015 |
Decision Date: | 24 April 2015 |
Jurisdiction: | Civil |
Before: | Mahony SC DCJ |
Decision: | Verdict and Judgment for the Plaintiff. For orders see [115] |
Catchwords: | Employer’s liability; Horse training accident; Safe system of work; Assessment of work injury damages. |
Legislation Cited: | Civil Liability Act 2002 (NSW) |
Cases Cited: | Fox v Wood (1981) 148 CLR 438 |
Category: | Principal judgment |
Parties: | Elly May Paton (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 14/7352 |
Publication Restriction: | Nil |
JUDGMENT
The Plaintiff’s Claim
The plaintiff claims damages for injuries suffered by her at work on 7 February 2011. The defendant was a corporation conducting a horse training facility known as “Bronzewing Farm” at Seaham, New South Wales, where it employed the plaintiff as a stable hand and track work rider.
On 7 February 2011, the plaintiff, who was born in 1991, was riding a horse known as “Koi Fish” at the direction of its trainer and principal of the defendant, Lesley Molony. Whilst the plaintiff was riding that horse, it bolted and ran into a fence, causing the plaintiff to fall off the horse and suffer severe injuries, including a comminuted fracture of her right femur, a fracture of the left forearm olecranon and an injury to her lower back.
The plaintiff pleads that her injuries were caused by the negligence and/or breach of statutory duty of the defendant. The particulars pleaded are as follows:
(a)“By the defendant, its servants and/or agents, having a system of work that was unsafe and likely to cause injury, it requiring the plaintiff to undertake track work on a horse that was dangerous.
(b)By the defendant, its servant and/or agents, failing to direct the plaintiff not to carry out the work until such time as she was provided with a safe system of work or the appropriate equipment.
(c)By the defendant, its servants and/or agents, failing to direct the plaintiff not to carry out the work until such time as she was provided with a safe area in which to conduct the track work, such area being a race-track with a suitable fence or guardrail.
(d)By the defendant, its servant and/or agents, failing to take reasonable care to monitor, identify and eliminate the risk involved in the system of work.
(e)By the defendant, its servant and/or agents, failing to warn the plaintiff of the risks associated with the use of the system of work.
(f)By the defendant, its servant and/or agents, failing to undertake any risk assessment in relation to the system of work, such risk assessment likely to have prevented the circumstance of injury.
(g)By the defendant, its servants and/or agents, failing to take heed of the warning of the plaintiff that she was concerned of the risk posed by riding the horse.
Particulars
Verbal warning from the plaintiff to Lesley Molony on 7 February 2011.
(h)By the defendant, its servants and/or agents, failing to take heed of the warnings of its other employees that the horse was dangerous.
Particulars
Verbal warning from Hayley Mulheron to Lesley Molony in or around 2009 - 2011
(i)The plaintiff repeats the allegations in paragraphs 5(a) to (g) above and stated that the circumstances establish breach of the provisions of the Occupational Health and Safety Act 2000 and/or its regulations, insofar as the Defendant failed to take reasonable care to observe the risk of injury to the plaintiff and eliminate it prior to his injury and/or failed to ensure the site was free of risks of injury.”
The Defendant’s Defence
By its Defence filed on 5 February 2014 the defendant admitted that it owed the plaintiff a duty of care in its capacity as her employer, but disputes the scope of that duty as pleaded by the plaintiff in her Statement of Claim. The defendant admits that the plaintiff sustained an injury in the course of her employment on 7 February 2011 after falling to the ground whilst riding Koi Fish. The defendant denies negligence and breach of statutory duty and relies upon ss 32 and 39A of the Occupation Health and Safety Act 2000 and s 267 of the Work, Health and Safety Act 2011.
In the alternative, and without admitting negligence, the defendant has pleaded that the plaintiff’s injuries were caused and/or contributed to by her own negligence. The particulars of contributory negligence are as follows:
(a)“Failing to take reasonable care for her own safety
(b)Failing to advise the defendant that she did not have sufficient skill or experience to ride the horse.
(c)Failing to hold the reins on a horse tightly to give her better control of the horse.
(d)Failing to advise the defendant that she considered the horse to be “dangerous”.”
The defendant has also pleaded reliance on s 151L of the Workers Compensation Act 1987 (“WCA”) and states that the plaintiff failed to mitigate her loss. No particulars of failure to mitigate were pleaded.
The Plaintiff’s Evidence
The plaintiff gave evidence that she had an interest in horses from an early age. As a child, she owned and looked after a number of horses and gave evidence that she was, as a girl, “horse mad”. To pay for the cost of looking after her horses she did part time work after school and on weekends and after she finished school, continued to do unskilled work to earn money. The first full time job she obtained was in a real estate office doing clerical work in 2009. Unfortunately, that business failed shortly thereafter. She then applied for and obtained a position with the defendant as a stable hand and as a rider. Whilst she became licensed as a track work rider, she had no intention of becoming a jockey.
In the course of that employment the plaintiff gave evidence that she suffered injuries in a number of riding incidents prior to February 2011. The first occurred on her first day of work when she was riding a horse called “Bronzewing Baby”. On the same day she was thrown from another horse called “Bronzewing Bonnie”. Within a few weeks she had been kicked in the arm by another horse and taken to Maitland Hospital by her employer, Lesley Molony.
On another occasion, when the plaintiff was working at the Newcastle Jockey Club track at Broadmeadow, she was kicked in the chest by a horse being put through the barriers and on that occasion was taken to Maitland Hospital. On another occasion at that track she was thrown by a horse called “Bobby The Dazzler” when it bolted on the track and jumped over a ditch, throwing her into a gully. The plaintiff injured her knee and was again taken to hospital and had an x-ray.
The plaintiff gave evidence that following those events, her employer employed another person, Hayley Mulheron, to ride the horses in track work at the racetrack. That person was employed as an apprentice jockey, and the plaintiff stopped riding altogether at the racetrack. She gave evidence that she did occasionally go riding at Bronzewing Farm. On an occasion prior to February 2011, she and Hayley Mulheron were asked to work two horses, Koi Fish and Mary. The plaintiff gave evidence that Hayley rode Koi Fish, and she rode Mary. They were riding the horses in a paddock known as “the track” at Bronzewing Farm which had a mowed grass track with posts that had the furlong numbers written on them every 200 metres. Hayley rode Koi Fish ahead, as the plaintiff was doing slow work on Mary. Koi Fish was ridden around the track and as it came up behind the plaintiff on her horse, Hayley Mulheron yelled out “Stop”. The plaintiff described her as screaming at her to stop at the top of her lungs and she stopped her horse immediately and turned around to see Koi Fish bolting unmanageably towards her with Hayley Mulheron trying to stop him. The horse was galloping flat out and the plaintiff observed Hayley to be pulling the reins as hard as she could. The plaintiff climbed off her horse and Koi Fish galloped towards the bottom of the paddock where it stopped and Hayley Mulheron jumped off.
The plaintiff gave evidence that Hayley Mulheron said “I hate this horse. I’m never riding it again. It needs to be shot.” She observed Hayley to be very shocked and very shaken. They took the horses back to the stables where the plaintiff heard Hayley Mulheron say to Lesley Molony:
“You need to shoot this horse. It’s mad. I’m never riding any of your horses again.”
The plaintiff gave evidence that Hayley Mulheron was sent home that day. It was in January 2011, but she could not recall the date.
On 7 February 2011 the plaintiff gave evidence that she arrived at work at 6am and went to the stables to feed the horses. Lesley Molony met her at the stables and said to her:
“I want you to ride Koi Fish first up.”
The plaintiff said:
“Okay.”
but then hesitated and said to Lesley Molony:
“Are you serious?”
Lesley Molony said:
“Yes.”
The plaintiff was then asked to grab the racing pad, a type of saddle shown in exhibit 1, to ride the horse. She had never used a racing pad at Bronzewing Farm before and usually used a saddle known as a stock saddle. That saddle had a higher pommel at its front, horns on the side to enable greater control and a higher seat to prevent the rider from falling off either backwards or sideways.
Prior to riding the horse the plaintiff gave this evidence:
“Q: What did you say to Ms Molony?
A: I don’t think I’ll be able to hang onto him.
Q: What did she say?
A: You’ll be right.
Q: Did you say anything else?
A: Then I hesitated.
Q: Yes?
A: And she said, ‘He’s fine at home’.
Q: Then what did you do?
A: I just got on.”
The plaintiff then gave evidence that she was told by Ms Molony to do one lap of trot and one lap of canter, in a paddock shown in exhibit C, an aerial photograph of part of the property. On the second lap, Ms Molony said to her:
“Okay. Canter him now.”
The plaintiff gave this evidence:
“A: So I went – and gave him a bit of a kick and he went straight into a canter and I cantered around in a clockwise position, same track as what I did previously. Then as I got down – as I was turning back towards heading towards the gate, he started to pull and he started – and he just jumped into a gallop.
Q: So when you say ‘Jumped into a gallop’, does he physically jump?
A: It felt like it, yes.
Q: What did you experience when that occurred? Physically? Did you notice anything about your body? The reins? Anything about it while that happened?
A: I started to pull tighter. I started to really pull the reins tight.
Q: Did you notice anything about any reaction from the horse at that time?
A: He got faster and stronger.
Q: Which direction was he heading at this time?
A: Straight towards the gate.
Q: Who was at the gate?
A: Lesley was standing at the gate.
Q: Which way was she facing at that time?
A: She had her back to me waving in the opposite direction.
Q: Do you know who at?
A: At Tony the chiropractor. Tony Jones, the chiropractor.
Q: When you saw her waving at Tony, how far away from you – doing the best you can – were you at the time that occurred on the horse?
A: About 20 metres.
…
Q: Then what happened?
A: I panicked, and I thought he was going to run Lesley over, so then I quickly grabbed the reins as hard as I could in my left hand to try and pull him around.
Q: Did you say ‘reins’?
A: Yes.
Q: Both reins?
A: Just one rein.
Q: Did you notice anything happen then to the horse? What happened?
A: He slowly – very slowly – he was very strong – started to go off to the left.
Q: He turned slowly?
A: Yes so his turn was slow, whereas he didn’t just whip around – it took me a while to turn him, but he was still galloping at the same speed.
Q: Over how many seconds? You said, I think, 20 metres away you saw a waving at Mr Tony and then I think you said that eventually you’re pulling him to the left. Over what period of time did this event occur?
A: It was like a blink of an eye it was that quick.
Q: Then what happened?
A: Then all I remember is falling towards the ground as the horse come down with me.”
The plaintiff then indicated on exhibit A where that occurred.
The plaintiff gave evidence that her last memory before the horse actually fell was looking at Lesley with her back to her, waving at Tony Jones. It was approximately one metre from the fence when the horse fell to its left and her next recollection was her mother arriving. She had severe pain in her back and a sensation she described as “it felt like there was water running through it”. She described that sensation from her shoulders to her tail bone. She also had severe pain in her right leg but did not recall whether she had pain in her left arm.
The Ambulance Service was called and she was placed in traction and given pain relief. She could not recall any conversation with Lesley Molony after the accident and before she left in the ambulance.
The plaintiff’s subsequent treatment and the effect of the injuries on her is described in more detail below.
The plaintiff gave evidence that she had never used a racing pad on any thoroughbred during her employment at Bronzewing farm. She had not ridden Koi Fish before the incident.
In cross-examination Ms Paton identified a photo of the exact saddle she was riding on that day. It became exhibit 1. She had been registered as a track work rider since September 2009 with Racing New South Wales and agreed that she had been riding horses since she was two years of age and regarded herself as a highly competent horse rider.
The plaintiff gave evidence that it was usual for her when riding track work at the Newcastle Jockey Club to use the racing pad type of saddle. She had ridden there up to 15 times before her accident.
The plaintiff was cross-examined on her claim form. The description of the incident contained on that form:
‘I was riding track work at Bronzewing farm in an open paddock with no running rail on a horse called Koi Fish. The second lap he took off hitting a fence, landing on top of me.”
The plaintiff confirmed that the rail of the fence was 145 cms high and there were wires connecting the fencepost below the top rail. The plaintiff confirmed that the horse went through the fence, but stated, when the horse went down, she was still on it. When riding the horse, she did one circle of trot and was returning from one circle of canter. As she was riding towards Mrs Molony she gave the following evidence:
“Q: He changed form a canter into speed and galloped?
A: Yes, so he was slowly getting stronger and faster and then he jumped into a gallop.”
It was suggested to the plaintiff that the horse slipped under the fence at a different point to which she had indicated in her own evidence, which she denied. She also denied that Mrs Molony was in fact looking at her and having a conversation with her immediately before the horse commenced to gallop. She was due to finish up that particular session, and was asked:
“Q: Before the horse broke into a gallop, was the horse behaving well, that is, did it do its trot properly and did it do its canter properly?
A: Yes, but it was pulling very hard.
Q: But it only commenced to pull hard after it started to break into a gallop?
A: No, it pulled hard from the moment I started to trot it.
Q: And can I put this to you, that when you were finishing up that track session and the horse was then walking a distance of about 10 metres, and you lifted up the reins?
A: The horse was not walking at all.
Q: And I put it to you that you lift up the reins at that time and in both hands and you were holding them loosely?
A: No.
Q: I put it to you that at that stage you said these words to Mrs Molony, ‘Look at this, he’s worked beautifully on a loose rein’?
A: Definitely not.
Q: I put it to you that it was at that point that the horse Koi Fish started to bolt or gallop with you on it?
A: No.”
It was then put to the plaintiff that the racing pad had been used by her on the farm previously, which she denied.
On the previous occasion that the plaintiff had given evidence about, namely, when Hayley Mulheron was riding the horse Koi Fish on the mowed track on a different paddock, it was put to the plaintiff that on that occasion Hayley Mulheron was supposed to gallop the horse, which the plaintiff denied because they had been asked to do slow work, just a trot and a canter. In fact, that was always the case when exercising horses on Bronzewing, namely, they were supposed to do either a trot or a canter and never a gallop. Lesley Molony had given that instruction.
The plaintiff was asked whether before her accident she was aware that the horse had been the subject of some attention from a horse whisperer named Edwards. She said she was, but that it was before she commenced at Bronzewing farm.
The plaintiff was cross-examined about a statement she subsequently made on 14 November 2012 (exhibit 2). In paragraph 23 she gave the following description:
“I rode him for most of the lap, however, when he turned the last corner towards the gate where Lesley was still standing watching me, he bolted out of control. He started galloping at full speed towards the gate. I could not pull him up. I tried to control him by turning his head back towards the left into the paddock (i.e; to the left), however, he would not respond and just kept bolting towards the gate. I was concerned he was going to run straight over Lesley and tried to turn him towards the fence to stop. He just kept going and eventually he hit the fence at full speed.”
The plaintiff was questioned about that statement as follows:
“Q: That’s the case is it not, Mrs Molony was watching you?
A: I meant, she was meant to be watching me, she was not watching me when the horse bolted out of control.
Q: But that’s what you said when you signed this statement. You have signed your name to a statement which says, ‘was still standing watching me’. It’s very clear isn’t it?
A: That’s what I wrote.
Q: Yes. And that’s the case is it not, she was watching you at the time that you turned the horse towards her?
A: As I turned him, yes, but as he began to gallop of no, she had turned her back by the time I reached nearly her and she was waving at Tony Jones.”
It was put to the plaintiff that before the horse galloped she held the reins up high and had a conversation with Mrs Molony, which she denied.
Finally, the defendant’s case was put to the plaintiff as follows:
“Q: You said in evidence yesterday that you complained to Mrs Lesley Molony before you rode Koi Fish to the effect that you complained about having to ride it on 7 February 2011, do you remember that?
A: Yes.
Q: I suggest to you that you made no such complaint before you rode that horse?
A: I did.
Q: You did. You had obviously known of Koi Fish before the day of your accident?
A: Yes.
Q: And I want to suggest to you that you regarded that horse as one of your favourite horses, in her number of horses?
A: Definitely not.
Q: I also want to suggest to you that the incident you referred to with Hayley Mulheron in the galloping episode in January 2011 was just that, a galloping episode and the horse was not – I’m sorry – was just a galloping episode that you observed?
A: Sorry I don’t understand your question.
Q: I want to suggest to you that when Hayley Mulheron rode Koi Fish in January of 2011 on the defendant’s property, and you were riding with her that day, you observed the horse going at pace?
A: Yes.
Q: I want to suggest to you that Hayley was actually galloping that horse purposefully?
A: No, she was not.
Q: I want to suggest to you that your evidence yesterday is incorrect where you said that Hayley said to Mrs Molony, ‘You need to shoot this horse, it’s made, I’m never riding this horse again’?
A: That is correct.
Q: I’m putting to you that that conversation that I just read from your evidence yesterday was something that did not happen?
A: Yes, it did happen.”
In respect of the plaintiff’s evidence about Lesley Molony facing the opposite way, she was asked:
“Q: You weren’t concentrating on trying to pull the horse up at the time?
A: As I looked up at Lesley, I see that she was facing the opposite way and out of the corner of my eye I could see Tony Jones pulling into the car park in his white ute.
Q: And you noticed all this while you were going faster and faster, the horse having bolted?
A: Yes.
Q: Were you scared at the time?
A: Petrified.
Q: I suggest to you that you didn’t see the chiropractor up the laneway at the time, what do you say about that?
A: I did see him.
Q: And I suggest to you that a conversation did take place between yourself and Lesley Molony shortly before the horse – immediately before the horse commenced to gallop?
A: There was no conversation whatsoever.”
Further evidence included:
“Q: You never suggested to Mrs Molony that the horse Koi Fish was too strong for you, did you?
A: I did.
Q: I suggest to you that you did not?
A: I did.”
Other Evidence Relied on by the Plaintiff
The plaintiff called Mr Larrie Clarke, who had ridden horses all his life. He had an apprenticeship as a jockey at age 15 and had ridden as a jockey from 1964 until 1992. After that career, he became a farrier and horse trainer.
Mr Clarke had been employed by Lesley Molony at Bronzewing farm as a farrier on five occasions in 2009 and 2010. He had attended to the shoeing of the hooves of the horse called Koi Fish and was asked to describe that horse’s behaviour as he carried out his work as a farrier. He said:
“A: I would describe Koi Fish as an absolute arrogant animal.
Q: You’ll have to explain that in a little bit more detail. What type of physical things did he do that you could observe with your eyes that would make you form that opinion?
A: The horse pulled back, he reefed his feet away, he didn’t want to be shod, …”
Mr Clarke was asked to compare Koi Fish’s behaviour as a horse with other horses he was asked to work on at Bronzewing. He said:
“A: Similar to most of them, they generally – a lot of the horses there had very little manners, but he in particular was a very unruly young horse.
Q: When you say the horses had very little manners, can you explain that a little bit more so His Honour can understand what you mean?
A: As a professional farrier, when we go to a job we expect to be shoeing a horse in around 30 minutes, when it’s taking 40-50 minutes, then its unruly, it’s a nuisance, a waste of time, it’s also a risk to our health, there was several horses there like this, but particularly Koi Fish.”
Mr Clarke went on to describe the horse as “arrogant, hard to shoe” and “against having anything done to him”.
Mr Clarke was asked to comment on the different types of saddle shown in exhibit 1 and exhibit B. He was asked whether it was appropriate to use the racing pad outside track work on a racecourse or in a race and answered “No, because there was not enough grip and it was not safe enough. As there were no knee pads on the racing pad, there was no grip”. He was shown the photo of a stock saddle, exhibit A, and asked:
“Q: Yes and how does that help, if at all, the jockey controlling and managing to stay on the horse?
A: Well it gives you control of the hind quarters as well as the head and something to sit against as you pull if you’re pulling or if you’re riding forward it still gives you something to sit back against.”
Mr Clarke gave evidence that given his knowledge of the behaviour of Koi Fish, would he have allowed the plaintiff to mount that horse with a racing pad for the purpose of trotting and cantering, and he said “No”. When asked why not, he answered:
“A: I was brought up to a very, a very strict ritual in the racing game where old riders rode young horses, young riders rode old horses, I would not put a young rider on a young horse that was inexperienced and unruly, definitely not anywhere, any stable for that matter.”
Mr Clarke also gave evidence that he would not have allowed the plaintiff to trot or canter Koi Fish at Bronzewing farm with a racing pad as it was not a track. The reason for that was that at a track there was a mowed surface and a fenced area which needed to have a guided rail. As there was no rail in the paddock which the plaintiff was instructed to ride Koi Fish in, Mr Clarke considered that to be dangerous.
In cross-examination Mr Clarke gave evidence that the rail required was on the right hand side of the horse if it was working in a clockwise direction. When asked whether if working a horse in a paddock one would not go too close to the perimeter fencing, he stated that he would not be working a horse there in the first place. He agreed that galloping a horse close to fencing might be dangerous.
Mr Clarke gave further evidence that the type of saddle used in track work was at the discretion of the trainer
The plaintiff called Mrs Rhonda Matthews, who was the owner of the mare from whom Koi Fish was foaled in September 2005. After the horse was broken in, he was sent to a trainer as a two year old, first at Grafton and then at the Gold Coast, at which time the horse was gelded. Mrs Matthews gave evidence of an occasion in 2008 at the Gold Coast race track when Koi Fish was in the mounting yard before a race with other horses and jockeys, when the horse reared up suddenly, pulling himself free from the strappers lead rope and then spun around and kicked out with his back legs. The horse threw its jockey and then ran onto the track and collided with an advertising sign, putting his head through that sign. The horse was then retrieved and scratched from the race. Following that incident, Koi Fish was sent to Bronzewing farm where Mr David Edwards worked. He was described as an accredited “horse whisperer”.
The horse arrived at Bronzewing farm at the end of 2008 or early 2009. The horse underwent “remedial work” with Mr Edwards for a period of three months. Koi Fish was then sent to a trainer at Wyong for a period of 18 months. Mrs Matthews gave evidence that she attended race meetings where Koi Fish was always led into the mounting yard on a lead pony. In early 2010, the horse was sent back to Bronzewing farm. Mrs Matthews gave evidence that following the plaintiff’s injury on 7 February 2011, Mrs Molony rang her to advise her that the plaintiff was in John Hunter Hospital and spoke to her about the incident. She gave this evidence:
“A: Mrs Molony said the horse was in track work in the back paddock with Elly as rider, because she had no one else to use and he was in a strong canter when again, then he began full gallop. She had some – she told me she had some theories on whether he’d shied at something, you know, what had caused him to take off, but no one could ever – she said that it couldn’t be validated because the main concern there was – well, she shouted to another person on the property who is a chiropractor. She told me that she shouted to the chiropractor for help and that they called in an ambulance as an officer was attending the accident itself. She said there was no time to work out why it happened. It had happened.”
The plaintiff also relied on documentary evidence which is referred to below.
The Defendant’s Evidence
Mrs Lesley Molony gave evidence that in 2010, Bronzewing farm was 150 acres and housed 45 horses. At the time the plaintiff was first employed by Mrs Molony at Bronzewing, she knew that the plaintiff was a competent rider, but she was employed as a stable hand. That involved cleaning stables, preparing feeds and bathing horses.
Mrs Molony assisted the plaintiff to obtain a track work rider’s licence, which she obtained in September 2009.
Mrs Molony was asked about the race pad saddle shown in exhibit 1 and exhibit B. She gave this evidence:
“Q: Those sort of saddles exhibited in exhibit 1 and B, what are they used for?
A: They are used for track work.
Q: What sort of track work?
A: Track work is when horses go in their training regime to the track of a morning, and they are ridden under the instruction of the trainer, 99% of horses doing track work would use that saddle, there would be very rarely somebody use a bigger saddle and it would be for a horse that’s in a very early stage of its preparation, probably its first preparation and very rarely someone may use a jockey pad, but that would be an almost unheard of event at track work.
Q: And where is track work normally performed?
A: On a race track.
Q: Anywhere else?
A: No, it’s called track work on a race course, if a horse if ridden on another property it would only be under the instruction of the trainer and if the property was recognised by Racing New South Wales that you could ride on it.”
Mrs Molony went on to give evidence that the riding that took place on her property was exercise riding for race horses.
When asked what remedial treatment Koi Fish was given on her property when he first arrived there, Mrs Molony gave the following evidence:
“Q: What did you do, you, to solve or to attempt to solve the problem with the horse?
A: Treated the horse with a huge amount of kindness for a start because they are very resentful of people who don’t and, yes, he was very head shy so it’s persistence that you have to get the horse used to being handled around the head.
Q: How did you physically do that?
A: Well it’s hands on. That’s what it is. It’s touching, patting, talking kindly. This is a living human being that you have to treat as such. It’s a living thing.
Q: How long did the horse stay on your farm with that treatment?
A: Probably six or eight weeks maybe then it went to another trainer.”
After the horse was sent to race at Wyong, it came back to Bronzewing farm twice for spells or resting periods. She was asked whether she observed any change in the horse and answered:
“A: Yes he was maturing. He was becoming a better horse. It happens. They grow up.”
Mrs Molony confirmed that before her injury, the plaintiff had ridden track work once or twice a week at the Broadmeadow race track. She suffered a number of injuries in three separate incidents. Mrs Molony believed she was a competent rider and on the day she was injured, she was given instructions to trot and canter Koi Fish. She described what happens as follows:
“A: We walked it down the laneway, past the mare and foal paddocks, and I legged her up and she was to do trot and canter with the horse on that paddock, which was – she worked the horse for about 15 minutes. At the end of the work session, she rode the horse back across the paddock and was very proud of herself, and so she should have been, that the horse had worked very well on a loose rein, that means he wasn’t being dragged around by the mouth, and I said to her ‘Be careful Elly, gather him up because he’s a race horse and he’s in foot work of course’, and it is my belief that something in the grass, and it could have been a plover or a rat or a rabbit, gave the horse a fright and he reacted.”
Mrs Molony gave evidence that at the time the horse bolted she was looking at the horse and she did not take her eyes off the horse or the plaintiff. She observed the horse to be “at a very good speed running towards the corner of the paddock” and then impacted with a fence, at a different place indicated on exhibit C from that indicated by the plaintiff. She described the horse to first bounce off one section of the fence and then again impact with the fence, on this occasion, skidding under it. As that happened she observed the plaintiff’s leg come into contact with the fence and then she came off the left-hand side of the horse and she fell onto her right elbow. The horse continued through the fence, beneath the rail. She then called out to Tony Jones, the chiropractor, to ring an ambulance.
Mrs Molony then gave evidence that the plaintiff was fond of Koi Fish, that she had ridden horses on Bronzewing farm before this day and that she had also used the type of saddle shown in exhibit 1 before. She had no reservations about the plaintiff’s ability to ride Koi Fish on the day of the accident. She had no recollection of the plaintiff expressing any reservations about riding Koi Fish on that day. She gave further evidence that the paddock in question was used because it was “a very safe paddock and it was close to everything and it was railed”. When asked why she regarded it as a safe paddock she said:
“A: Well it was maintained in immaculate order. It was a mowed track, it had a top rail, it was close to the stables, it was easily accessed. All of those things made it a very safe paddock to work in.”
Mrs Molony had no recollection of a conversation she had with Hayley Mulheron in which Ms Mulheron had said of Koi Fish, “That horse should be shot, I’m never going to ride your horses again, they’re all mad.” She had no recollection of any incident where Koi Fish had broken into a gallop in 2011.
In cross-examination Mrs Molony agreed that she had a detailed understanding from the owner of Koi Fish of the incident at the Gold Coast race track and that she had spoken to the stewards who confirmed that they had placed an embargo on the horse. She believed that the plaintiff had ridden Koi Fish at Bronzewing farm before this incident. On the first occasion Koi Fish came to Bronzewing farm only David Edwards rode the horse. On each occasion the horse came back to the farm for a spell, it remained there for six to eight weeks until it went back to the trainer.
Mrs Molony had made a statement about the incident some two years after the accident. She said that the plaintiff had done two and half laps on the horse and that she worked the horse for 15 minutes. She disagreed that it would be three or four minutes at the most.
Mrs Molony confirmed that the horse was walking back towards her when it got spooked and started heading off to her right. She agreed that the horse was galloping out of control but said:
“A: Well, because Elly didn’t have the reins up. The person on the horse controls the horse.”
She ran to where the horse fell and at that time turned to see Tony Jones in the car park.
It was put to Mrs Molony that she had no one else to ride Koi Fish once Hayley Mulheron left her employment so she asked the plaintiff to ride it. She answered:
“A: Absolutely not.”
She denied that when she asked Elly to ride Koi Fish that the plaintiff had said to her ‘Are you serious?’ She agreed that there was no other licenced rider on the farm on that day and said:
“A: No, but if I needed a horse worked that urgently it could have gone to the track.”
She had no recollection of the plaintiff saying to her “Do you think I’ll be able to hang on to him?” and she denied saying in response to that, “He’s alright at home.”
Mrs Molony further denied that she turned to wave at Tony Jones as the plaintiff was riding the horse towards her at the end of the exercise.
As to the question of risk, Mrs Molony gave the following evidence:
“Q: Koi Fish in its history and in your experience and knowledge of him is certainly a horse that’s had some problems with its behaviour, correct?
A: Early days he did when I didn’t have him.
Q: You’ve agreed with me as a proposition that sometimes horses are just unable to be remediated permanently, correct?
A: Yes, it is.
Q: Now it is therefore fair, isn’t it, to say that having a horse that’s behaved like that in the past, there was a small risk that it could take off again, correct?
A: There’s a risk with any horse could do that.
Q: But the risk with this horse would be more than usual, wouldn’t it?
A: No, I don’t agree with that.”
Mrs Molony denied that the incident at the Gold Coast race track, when the horse was a two year old, did not pose an increased risk to any rider, and she had no reason to contemplate that as a risk. The reason for that was that he had never displayed that sort of behaviour again.
Mrs Molony agreed that she told an investigator that the injuries suffered by the plaintiff on 7 February 2011 was the first and only injury that she had ever had at the farm. That was not correct, but she denied that she had told the investigator that to deflect responsibility for the accident.
Mrs Molony described the plaintiff as being affectionate to all of the horses at her farm and described Koi Fish as “a bit of a favourite”.
The defendant called Ms Alexandra Stokes, who, on 30 May 2013, completed her five year apprenticeship and became a fully qualified jockey.
From 2009 she had ridden Koi Fish in track work at Broadmeadow race track three or four times a week and had ridden him in races 20–30 times. The first race on Koi Fish was in early 2010. She described the horse as a “kind, gentle natured horse, I’d never had an issue with him, any of his work.”
Ms Stokes identified the saddles in exhibit 1 and exhibit B as saddles used in track work. She gave evidence that stock saddles were only used to ride very young horses that come straight from the horse breakers. From her observation, prior to the plaintiff’s accident, she had never observed the horse to behave badly. The horse had never bolted into a gallop without her consent.
Ms Stokes gave evidence that the plaintiff Elly Paton was the strapper of Koi Fish in 2009 and 2010, and that she appeared to love the horse and treated it as one of her own.
Ms Stokes gave evidence that she had ridden Koi Fish at Bronzewing farm on a number of occasions before and after the plaintiff’s accident. When she had ridden the horse there, it was on the flat beside the river. She had never ridden the horse in the paddock in which the plaintiff was injured.
In cross-examination, Ms Stokes agreed that she had only raced Koi Fish six times prior to the plaintiff’s accident. In her statement made in July 2013, she gave evidence that there was a misunderstanding where it stated that prior to the accident she had probably ridden Koi Fish about 500 times. Mrs Molony was present at the time she made the statement at Bronzewing farm. It was also at a time when she was looking for work as a self-employed jockey.
As she rode 15-20 horses at track work each morning, six mornings a week, she had a lot of other horses she could compare Koi Fish with.
Ms Stokes gave evidence that she found Bronzewing farm much safer than a race course for track work. When asked why, she said:
“A: Because you have lots of different hazards on the race course. There are 800 horses who do track work on Newcastle race course so you have to be wary of where other horses are on the track. There are rabbits on the race course at Broadmeadow, they run all over the track. So there are horses that do shy. There are horses that are only learning how to be race horses. So they can shy, they can do anything right in front of you. So when you’re at Bronzewing, you are out there either with one other horse or by yourself.”
Ms Stokes gave evidence that the point of having a rail on the track was to guide the horse around the track.
When asked about riding a horse in the paddock at Bronzewing farm, by a racing pad type saddle and assuming that the horse bolts, Ms Stokes was asked:
“Q: Is there anything that you can observe or know about in that paddock that would help you not come to a serious accident?
A: I wouldn’t even be thinking about guiding my horse towards the rail. I wouldn’t even be riding a horse in that paddock in a race pad, I would be riding him in track work saddle which I believe was the case. But I would never have guided a horse into a rail.”
Issues to be Determined
The following issues are to be determined:
(1)Did the defendant breach its non-delegable duty of care to the plaintiff in the circumstances established by the evidence by failing to provide a safe system of work and/or appropriate equipment as particularised in the plaintiff’s Statement of Claim as set out in [3] above?
(2)If so, did that breach cause the plaintiff’s injuries?
(3)Were the plaintiff’s injuries caused and/or contributed to by her own negligence for damages.
As the plaintiff’s claim is for work injury damages as modified by the Workers Compensation Act 1987, it is excluded from the operation of the Civil Liability Act 2002 – see s 3B(1)(f) – thus the common law applies. The employer’s duty is to take reasonable care and skill for the safety of the employee by providing adequate plant and equipment, a safe place of work and a safe system of work – see Kondis v State Transport Authority (1984) 154 CLR 673. The duty extends to maintaining and supervising the system of work to ensure that it is complied with – see McClean v Tedman (1984) 155 CLR 306 at 364.
It is clear that employment as a stable hand and track work rider, working with thoroughbred horses was attendant with the risk of injury. The determination of whether the employer breached its duty of care to the plaintiff is determined by application of the test as distilled by Mason J, (as he then was), in Wyong Shire Council v Shirt (1980) 146 CLR 40 at page 47 as follows:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff, or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
Factual Findings
Based on the whole of the evidence, I make the following factual findings:
(1)Koi Fish, as a two year old racehorse, was placed by its owner with the defendant for remediation after an incident at the Gold Coast race track where it bolted from the mounting yard onto the race track and put its head through an advertising hoarding. Following that incident, it was suspended by the Queensland Racing Authorities from 4 October 2008 until 10 February 2009 (exhibit E).
(2)Following its arrival at Bronzewing farm, Koi Fish was subject to some remedial action from the licenced trainer, Mrs Lesley Molony and her employee, Mr David Edwards, to ameliorate and modify the horse’s behaviour. That remedial action took place over a period of eight weeks.
(3)Following that remedial action, the horse Koi Fish was sent to a trainer at Wyong where it was trained and raced up until the end of 2010. During that period of time, the horse was spelled on two occasions at Bronzewing farm.
(4)Whilst at Bronzewing farm, on up to five occasions, the horse was shod by Mr Larry Clarke, an experienced horseman and farrier, who described the horse as “an arrogant animal” and “difficult to shoe”.
(5)In January 2010 the plaintiff witnessed Koi Fish to bolt with its rider, Hayley Mulheron, whilst the two of them were exercising horses on what was known as the “track” at the defendant’s premises. The horse bolted to the extremity of the track where it was finally stopped without injury to its rider, however, following that incident, Ms Mulheron told the licenced trainer, Lesley Molony, that she would not ride the horse again. She thereafter left the defendant’s employment.
(6)Horses trained by Ms Molony at the defendant’s premises, Bronzewing farm, could be taken to Broadmeadow race track, the track used by the Newcastle Jockey Club for training purposes and track work. Koi Fish was ridden at track work by a licenced jockey, Ms Stokes.
(7)At Bronzewing farm, horses under the care of Ms Molony were exercised by trotting and cantering only. That exercise could take place on the track referred to which had a proper rail and was marked with furlong posts.
(8)Up to the end of January 2011 the plaintiff had been injured in four separate incidents at both Broadmeadow race track and Bronzewing farm involving thoroughbred race horses.
(9)On 7 February 2011 the defendant employed no other track work rider. Whilst the plaintiff was registered with Racing New South Wales as a track work rider, she had no ambition to become a jockey.
(10)I accept the plaintiff’s evidence that she had not ridden Koi Fish at Bronzewing farm before 7 February 2011.
(11)I accept that the plaintiff had never used a racing pad to ride a horse at Bronzewing farm before and usually used a stock saddle when riding horses on the property.
(12)I find that on 7 February 2011 Lesley Molony asked the plaintiff to ride Koi Fish with a racing pad, and the conversation set out in [13] and [15] above, took place, namely, that the plaintiff asked Lesley Molony “Are you serious?” and said to her “I don’t think I’ll be able to hang onto him.”
(13)I find that the plaintiff hesitated and was told by Mrs Molony “He’s fine at home” and was told to trot and canter the horse on the paddock shown in exhibit C.
(14)I further accept the plaintiff’s evidence that upon completion of the second lap of the open paddock, Koi Fish jumped from a canter into a gallop, but prior to that had been pulling very hard.
(15)I do not accept the evidence of Mrs Molony that prior to the horse bolting, that the plaintiff was holding the horse with a “loose rein”.
(16)I find that the horse ran in a generally north-westerly direction and eventually came into collision with fencing at the north-western corner of the paddock shown in exhibit C.
(17)I find that the horse impacted twice with the fence, on the first occasion, brushing off the fence and on the second occasion, falling on top of the plaintiff and sliding through the fence.
Determination – Breach of Duty of Care
Applying the legal principles set out above to the facts as I have found them, I find that the risk of injury to the plaintiff was patent, in that her work as a stable hand and track work rider working with thoroughbred horses was dangerous work where there was a risk of injury to the plaintiff in the event that a thoroughbred bolted and galloped. The magnitude of that risk was high given the nature of the work, and having regard to the past history of Koi Fish, as established by the evidence, the probability of its occurrence was also quite high. The risk was “real” and therefore foreseeable.
The question to be determined therefore is whether the defendant’s response to that risk was, in all of the circumstances, reasonable. That calls for a consideration of, inter alia, the expense, difficulty and inconvenience of taking alleviating action, as well as considering any other conflicting responsibilities which the defendant may have had.
In the circumstances here, the defendant breached its duty of care to the plaintiff by requiring her to exercise a thoroughbred horse with a known history of dangerous behaviour, in an open paddock and using a racing pad as a saddle. I find that the trainer, Mrs Molony, knew that the horse had bolted with Hayley Mulheron riding it less than one month beforehand on the mowed race track. There was clearly a risk that the horse would again gallop, and the defendant breached its duty of care to the plaintiff by Mrs Molony requiring the plaintiff to exercise the horse in the open paddock. There was no guiderail around which the horse could be exercised and no other measures taken to ensure the safety of the plaintiff. A reasonable alternative available to the defendant was to take the horse to Broadmeadow race track and have a licenced jockey ride him at track work. There is no evidence to establish that that involved any great expense, difficulty or inconvenience for a licenced trainer in the position of the defendant. It was a daily occurrence in the way the business of the defendant was being conducted. I therefore find that the defendant failed to provide a safe system of work to the plaintiff and thereby breached its duty of care to her. I also find that the defendant failed to provide appropriate equipment to the plaintiff to carry out that work by requiring the plaintiff to use the racing pad as a saddle, and failed to take reasonable care to monitor, identify and eliminate the risk involved to the plaintiff in carrying out that work.
I also find that the defendant’s breach of the duty of care owed to the plaintiff was causative of the plaintiff’s injuries. Causation at common law is a matter of common sense – see March v E & MH Stramare Pty Limited (1991) 171 CLR 506. In so finding, I reject the defendant’s submission on causation. That submission involved a question of whether the type of saddle used, namely, a racing pad, rather than a stock saddle, would have made any difference to the plaintiff being able to control the horse and thereby avoid injury. The submission was misconceived, because the type of saddle used was but one element of the defendant’s breach in failing to provide a safe system of work and adequate equipment.
Further, I find that in all of the circumstances the plaintiff did not, by her own contributory negligence, cause and/or contribute to her own injuries. She was required to carry out the task by her employer Mrs Molony. When she queried her instructions to ride the horse, she was encouraged to do so by Mrs Molony saying to her “No, he’s fine at home”, meaning at Bronzewing farm. The defendant’s case on contributory negligence was not pressed with any vigour by its learned counsel for obvious reasons.
In coming to the above findings, it is irrelevant to determine the difference in the evidence of the plaintiff and Mrs Molony as to whether Mrs Molony was, at the time the horse bolted, watching the plaintiff or whether she had her back turned to the plaintiff and was waving at the chiropractor who had just arrived on the property. The incident was clearly a serious incident and highly traumatic, not only for the plaintiff, but for Mrs Molony, the licenced trainer responsible for her welfare. It is well known that a person’s memory and perception of traumatic events can lead to widely divergent eye witness testimony.
All of the witnesses who gave evidence in this trial were clearly trying to do their best to assist the court, and credit was not an issue in the proceedings. However, where I have preferred the evidence of the plaintiff to that of Mrs Molony in respect of the conversations that took place prior to the plaintiff riding the horse, it is because those matters were, in my view, given without embellishment or in a self-serving way. The evidence of Mrs Molony was somewhat strident and exculpatory of her involvement in this serious accident. Further, I do not accept her “theory” that the horse shied as a result of being frightened by something in the grass. That was somewhat speculative, as she went on to describe the paddock as a safe place to exercise the horse, because it was mown.
I also accept the evidence of Mr Clarke as to the nature of the horse Koi Fish, and the use of a racing pad referred to is [41] to [43] above, and prefer it to the evidence given by Ms Stokes. Her evidence was somewhat tainted by her reliance upon Mrs Molony for work as a jockey, and the circumstances in which she gave a statement to an investigator for the purpose of the defendant’s defence, whilst in the presence of the defendant’s principal witness, Mrs Molony. That was unfortunate from the point of view of Ms Stokes, who would not have known better, however, it left a poor impression. Further, the evidence of Ms Stokes only established that the horse could be ridden without difficulty to her as an experienced and licenced jockey on the race track doing either track work or racing. That did not accord with the experience of others with the horse on Bronzewing farm, away from the race track. I also accept the evidence of Mr Clarke in [43] that as there was no guide rail in the paddock, it was a dangerous place to ride Koi Fish.
For all of the above reasons I find that the defendant breached its duty of care to the plaintiff, and that that duty of care was causative of the plaintiff’s injuries. The plaintiff did not pursue her claim for damages for breach of statutory duty.
Damages
The plaintiff’s modified claim for damages pursuant to the WCA was restricted to claims for past economic loss, loss of superannuation on that loss, future economic loss, together with the loss of future superannuation entitlements, and an agreed amount according to the principle in Fox v Wood (1981) 148 CLR 438 of $2000.
The plaintiff was born on 18 August 1991 and was 19 years of age at the time of her injury on 7 February 2011. At trial, she was aged 23 years. The plaintiff’s schedule of damages (MFI 9) claimed the following:
| Past economic loss – Period 8/2/11 to 31/5/11 – 16 weeks at $430.00 per week Period 1/6/11 to 29/8/11 – 13 weeks at $215.00 per week Period 20/2/12 to 1/12/12 – 40 weeks at $500.00 per week Period 23/12/13 to date Loss of 10 hours at $20.91 64 weeks x $209.10 | $6,880.00 $2,795.00 $20,000.00 $13,382.00 |
| Sub-total | $43,058.00 |
| Past superannuation 11% of net past loss | $4,736.00 |
| Future economic loss Average weekly earning of $1,050.00 Allow 30% x factor 940 less 20% for vicissitudes | $236,880.00 |
| Future loss of superannuation | $33,235.00 |
| Fox v Wood | $2,000.00 |
| Total | $319,909.00 |
As to past economic loss, the defendant agreed with the first two periods claimed by the plaintiff. Thereafter, the defendant allowed for the period 20/2/12 to 1/12/12 the sum of $17,168.00, leaving a total past economic loss award of $26,825.00.
Superannuation on that amount at 11% equals $2,950.00.
For the future, the defendant advocated that a cushion be awarded in accordance with the principles in Penrith City Council v Parkes [2004] NSWCA 201 and State of New South Wales v Moss [2000] NSW CA 133 in the sum of $25,000.00.
The amount of Fox v Wood payments in the sum of $2,000.00 was agreed.
The ambit of the dispute on damages therefore was in respect of past economic loss, whether the plaintiff had suffered a loss from the end of 2013 to date, and if so, what was the quantum of that loss. Further, whether the plaintiff’s damages for future economic loss should be awarded on the basis of a calculation of her lost earning capacity from now until the end of her working life, with an appropriate discount for vicissitudes, or whether she should be compensated for that amount by way of a lump sum, and if so, the quantum of that lump sum. The determination of those issues involves a consideration of the evidence and the application of long established principles in order to assess the damages to be awarded.
The Plaintiff’s Employment History
The plaintiff left school in 2008 having completed year 11. She had, whilst at school, worked casual at a Coles Supermarket doing check-out. In 2008 she took a second job at a fast food outlet working a total of between 25 and 30 hours per week. In 2009 she commenced doing clerical work at a real estate agency in East Maitland, however, the business failed after less than a year. She commenced her employment with the defendant on 10 August 2009. Her work experience was therefore fairly limited, although she had a passion for horses and horse riding since she was a young girl.
The Medical Evidence
The plaintiff suffered a comminuted fracture of the mid-shaft of the right femur with complete postero-lateral displacement and some overlap of the fracture fragments. She also suffered a comminuted fracture of the left olecranon process of her left elbow and an injury to her lower back. The fracture of the right femur was treated with a K-nail and interlocking screws, whilst the left elbow fracture was treated with open reduction and internal fixation with plate and screws.
She was discharged from John Hunter Hospital on 15 February 2011 and remained under the care of Dr Hellman, orthopaedic surgeon, who removed the hardware from her right femur and left elbow on 20 February 2012. A week later she was admitted to Maitland Hospital with post-surgical infection. In March 2012 Dr Hellman noted that the plaintiff was having significant pain in her right hip and noted that she walked with internal rotation of her right foot. That was demonstrated during her trial and she was somewhat pigeon-toed.
The plaintiff suffers pain in her right leg constantly. Whilst she has no pain in her left elbow, she cannot straighten her left arm fully. She has constant pain in her lower back, aggravated by sitting, standing and bending.
Dr Mastroianni, in a report dated 14 August 2012, was of the opinion that the plaintiff was not fit to return to track work or stable work because of the pain in her hip. In a subsequent report dated 18 February 2015, Dr Mastroianni said she was further restricted by being unable to be on her feet all day. She had had a psychological reaction to her injury and in Dr Mastroianni’s opinion she was fit for full time clerical duties, subject to qualifications, otherwise, 25 hours per week as a shop assistant as she was then working, was within her limits.
Dr Pillemer, who examined the plaintiff on behalf of the defendant on 3 June 2013, was of the opinion that the plaintiff was fit for a wide range of employment opportunity, but that she should avoid activities that placed excessive stress on her right lower limb, such as prolonged walking or negotiation of stairs. As a consequence of her internal rotation deformity, her right leg would tire more easily with prolonged activities. Dr Pillemer also accepted that the plaintiff was not mentally fit to get back to horse riding at that stage. In a report dated 7 August 2014, Dr Pillemer was of the opinion that the plaintiff was not capable of getting back to her pre-injury duties. It was Dr Pillemer’s opinion that the plaintiff would be able to work on a full-time basis, but she would necessarily need to be able to rest her right lower limb intermittently and not do prolonged standing, walking or negotiating stairs on a continual basis. In his opinion, she would be able to work as a check-out operator, as a customer service assistant and as a reception/assistant to a property manager.
Dr Steele, psychiatrist, diagnosed the plaintiff as suffering a Phobic Anxiety Disorder with a specific phobia of horses. She had some Post Traumatic Stress Disorder symptomatology but not sufficient to warrant a formal diagnosis.
At the end of May 2011 the plaintiff was certified as fit for work on light duties for four hours a day. She returned to work with the defendant on crutches and continued to work on selected duties. She resigned from her employment on 17 May 2012, at which stage she was pregnant with her first child. The plaintiff was upset about being unable to look after her own horses, however, her fear of riding has abated somewhat and she has managed to ride occasionally in more recent times.
The plaintiff’s daughter, Ava, was born on 1 January 2013, however, the plaintiff kept looking for work and on 22 September 2013 started working with Bunnings at Maitland, working in the tool section. She commenced as a casual, working four days, but has become a permanent part-time employee, at first working 30 hours per week. That was in December 2013, however, in April 2014, she asked for a reduction of her hours to 25 hours per week because she was suffering pain in her arm, in her leg and her back. She did not think she would be able to do more than 25 hours per week. She had good assistance from her mother for the care of her child. The plaintiff gave evidence that she was looking for other work such as administration, that did not involve standing all day, however, she also had a problem with sitting all day and felt capable of sitting for no more than a couple of hours. She was also halfway through a Certificate IV in administration and intended to complete that certificate in 2015.
The plaintiff also gave evidence that she has a hobby as a photographer and had done some work for family and friends, however, she had not made any profit from that after her travel expenses had been paid.
Assessment of Damages
In respect of the plaintiff’s past economic loss, the only period of dispute is from 23 December 2013 to date. Following the birth of her child, it was reasonable for the plaintiff to obtain employment at Bunnings and it was reasonable for her to reduce her hours from 30 hours to 25 hours per week. I therefore allow the plaintiff’s claim, based on a loss of an average of 10 hours per week for a total of 64 weeks.
For the future, I accept the plaintiff’s contention that she has a residual capacity to earn about 70% of her full capacity. Her loss is therefore 30% of her earning capacity and that loss will continue for the duration of her working life, given the serious nature of the injuries to her right leg, left arm and her back. Clearly, the plaintiff would be better suited to administrative or clerical duties, however, she presently has no qualifications or experience in that type of work. She has, however, been successful in obtaining work, and has applied herself to that work. However, in any employment that she is successful in obtaining, she will need an understanding employer to ensure that she has sufficient flexibility in the workplace in terms of her being able to sit and stand at different times. She will also require flexibility in the arrangements for looking after her child and any subsequent children. I therefore propose to allow her the sum of $200 per week, but to apply an increased discount for vicissitudes of 20%. The calculation therefore is 200 x 940 x 80% = $150,400.00.
Superannuation losses on that amount, calculated at 14.03% as claimed, totals $21,100.00.
Orders
I therefore assess the plaintiff’s damages as follows:
| Past economic loss | $43,000.00 |
| Past superannuation loss | $4,700.00 |
| Future economic loss | $150,400.00 |
| Future superannuation loss | $21,100.00 |
| Fox v Wood | $2,000.00 |
| Total | $221,200.00 |
I therefore make the following orders:
(1)Verdict and Judgment for the Plaintiff against the Defendant in the sum of $221,200.00.
(2)The defendant is to have credit for the sum of $17,332.00 being weekly compensation payments made to the plaintiff.
(3)The defendant is to pay the plaintiff’s costs of the proceedings.
(4)The exhibits are to be returned forthwith.
(5)Any application for special costs order is to be made by way of Notice of Motion, together with affidavit evidence in support, to be filed and served in accordance with the Uniform Civil Procedure Rules 2005.
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