GARNETT & KERRIDGE (Residential Tenancies)

[2012] ACAT 44

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GARNETT & KERRIDGE (Civil Disputes) [2012] ACAT 44

XD 11/1391

Catchwords:             CIVIL DISPUTE – damages application – standard of reasonable man –  duty to take reasonable care -  duty to exercise reasonable skill

List of legislation: ACT Civil and Administrative Tribunal Act 2008, s 16

Civil Law (Wrongs) Act 2002, ss 42, 45, 46 and 49

Tribunal:                  Ms J. Lennard, Senior Member

Date of Orders:  4 July 2012                
Date of Reasons for Decision:         4 July 2012

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          

XD 11/1391

BETWEEN:

JESSICA GARNETT

Applicant

AND:

MALCOLM J KERRIDGE

Respondent

TRIBUNAL:            Ms J. Lennard, Senior Member

DATE:  4 July 2012

ORDER

1.The application dated 27 September 2011 is dismissed.

………………………………..

Ms L Crebbin, General President

For and on behalf of Ms J Lennard, Senior Member

REASONS FOR DECISION

Facts

1.    The applicant is the owner of a horse, a chestnut gelding, 10 years old and called Alfie.

2.   The Applicant and Alfie took part in a two day cross country clinic on 10 and
11 July 2010.

3.   The horse was lame and injured on the last day of the clinic.

4.   The respondent was engaged as the instructor/coach at the clinic which was organised by Micaela Jenkins and Chloe Radford.

The Law

5.   The applicant has brought this action as a Debt Application, later amended to a ‘damages’ application. The applicant claims damages in the amount of $8,700.25, being the amount of money she has expended on veterinary fees and rehabilitation treatment and training for the horse. ACAT notes that in written submissions made after the hearing of the matter, the applicant seeks to increase the amount claimed to in excess of $10,000, but agrees to submit to the limit of ACAT’s jurisdiction.

6.   The applicant did not specify negligence as a cause of action against the respondent, but has alleged that he failed in his duty of care to her and her horse. The respondent conducted the case as if it was an action alleging negligence and this has been addressed in final written submissions.

7. Section 16 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) defines civil dispute to include a damages application; and a damages application means an application for damages for negligence or for any other tort except nuisance or trespass. In exercising its functions under the ACAT Act, the tribunal must ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and observe natural justice and procedural fairness. The Tribunal proceeded with this matter as if it were a damages application and as if negligence had been specifically raised.

8.   The applicable law is the Civil Law (Wrongs) Act 2002 (the Wrongs Act). That Act defines negligence as the failure to exercise reasonable care and skill (s49). The standard of care which a defendant or respondent must meet is the standard of care 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(s42).

9. The Wrongs Act sets out the following general principles in relation to causation:

a.the negligence was a necessary condition or factual cause of the harm

b.that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused

c.in deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party (s45).

d.the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation (s46)

10.Under the relevant law the applicant is required to, by her evidence, establish that the respondent owed her a duty to take reasonable care; that the respondent failed to take reasonable care or to exercise reasonable skill in the circumstances; and, that that failure by the respondent as a matter of fact caused the harm or loss she now complains of. In considering this the Tribunal must examine the scope of the duty owed and whether liability, or responsibility, for the loss should be imposed on the respondent.

Evidence

11.The applicant gave evidence that at the end of the session on the second day Alfie had refused to take one of the jumps. She stated that he had been performing well but was now backing up and spinning around. The applicant stated that she believed Alfie was distressed because the respondent was shouting. The applicant asked the respondent to assist the horse to take the last jump – she believed that a stronger and firmer hand was needed. The applicant stated that Alfie fell down a slope when the applicant pushed him, whipped him and shouted at him. Twice the horse fell. Then the respondent mounted the horse and took the jump. After this, the horse was sweating and shaking, and bleeding from both rear ankles.

12.In cross examination the applicant explained that she was an experienced rider, but cross country was new to her. She also conceded that Alfie had previously exhibited the problem of walking backwards, that she had had specialist training in an attempt to overcome this, and that Alfie had been misbehaving at the time of the incident, which was why she had asked for assistance from the respondent.

13.Mr Rob Bilderbook, her husband, gave similar evidence of the events of
11 July 2010.

14.The applicant tendered several reports from Canberra Equine Hospital, and a written statement from Ms Kylie Burt.

15.The Respondent gave evidence as to his qualifications and experience. He is an appropriately qualified and extensively experienced rider and coach. He stated that he was aware of the Equestrian Australia Code of Conduct and he had adhered to it. He had grouped the riders on this clinic according to their experience and ability; he had the opinion that the applicant was a tense and nervous rider, and that she and her horse may have been mismatched. He noted that he had observed that Alfie was a big horse, that he had exhibited some problems in going forward over the two days of the clinic, and that the applicant was an inexperienced cross country rider.

16.He agreed with the applicant that she had been having difficulty getting Alfie to move forward at the jump and that she had asked him ‘to ride the horse over the fence to finish the course in the right manner’. He stated that when he took the reins, Alfie moved backwards towards a gully, and he tried to turn the horse; the horse slipped backwards and fell. Then he attempted to move the horse to a mounting block when Alfie moved backwards up a slope and fell again. After the second fall, he was able to mount the horse and rode him over the jumps for about 5-8 minutes. He said that the horse did not appear to be lame but after he had handed Alfie back to the applicant he observed that the horse was sore. He advised her to see the vet.

17.The respondent further stated that in his opinion it was proper to end the lesson by jumping the horse after he fell. He denied using the whip or excessive force.

18.Ms Jodie Riddock, a participant in the clinic gave evidence that Alfie had showed signs of going backwards, and that she had observed that he was a ‘high energy’ horse. She stated that she observed the respondent trying to control the horse and remove him from a hazardous situation – the horse was running backwards towards the river bank. She noted that she did not observe any lameness when the horse took the jump. In her written statement, which she adopted in evidence, Ms Riddock said at no time did I consider the actions of Mr Kerridge as inappropriate  or that he caused any unreasonable stress to
Ms Garnett’s horse.

19.Ms Micaela Jenkins, an organiser of the clinic, gave evidence that the horse was ‘playing up and was in a bit of a mood’. She stated that the horse was backing up and slipped on each occasion. She considered the actions of
Mr Kerridge to be reasonable and as ‘safe as possible’. Ms Jenkins stated that when a horse as big as that and with lack of training decides to play up there is nothing you can do.  In her written statement, she notes ‘it was uncooperative and not listening to any commands on the ground. As Mr Kerridge was asking the horse to move, it started walking backwards and fell over itself close to the edge of the gully’.

Issues for the Tribunal

20.Did the respondent owe a duty to the applicant to take reasonable care and to exercise reasonable skill as an instructor? Yes.

21.What was the scope of the duty? Both parties have referred to Equestrian Australia’s code of conduct for coaches. This is relevant to the determination of the scope of the duty, as is the evidence before the tribunal. The tribunal has examined the conduct of the respondent and determines, based on the evidence outlined above, that he did not act in a manner which was inconsistent with that of a reasonable person in the defendant’s position.

22.Did the negligence of the respondent cause the loss complained of? In light of the above finding it is not necessary for the tribunal to consider this issue, however, ACAT makes the following points:

a.The applicant has not provided any evidence of a contemporaneous veterinary report setting out the extent of the injury suffered by the horse on the 11 July 2010;

b.The evidence of the applicant herself and the veterinary reports show that there was delay between the injury and calling the vet of at least three hours; delay of 4 days until any follow up treatment and then a delay of
4 weeks to the third veterinary consultation. It could therefore be argued that lack of treatment was as much a cause of the ongoing lameness as the injury itself.

c.None of the veterinary reports available to the tribunal detail the extent of the injury suffered on the day.

d.There is no assessment of the injury suffered on the day, its impact on the horse or of the other injuries and possible causes of the lameness of the horse. The evidence of the vet reveals problems with shoes and another injury caused by the horse backing up. It could not be concluded that the injury suffered on the day is the primary factual cause of the ongoing lameness.

e.The report from Canberra Equine Hospital raises severe doubts as to the cause and extent of any injury to the horse: for example, on 11 July 2010 the notes state not painful to flex and lower limb…was placing heel on ground when loading float…Phone conversation – Alfie much improved; on 11August 2010, Walking and trotting sound. Ready to start light exercise. Later references to lameness in November 2010 and January 2011 also refer to the horse being unshod, or reshod or needing a change of shoes.

f.The notes of Canberra Equine Hospital reveal that on 3 June 2011 Alfie backed up into a fence and got his legs caught.  While the injury was to his other hind leg, there was the need for significant treatment. Later notes show that the left hind lameness had improved.

23.Thus, even if the Tribunal had been satisfied that the actions at the Respondent were negligent the Applicant has not established on the evidence, that the lameness of Alfie was caused by that conduct.

………………………………..

Ms J Lennard

Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	XD 11/1391
PARTIES, APPLICANT:	Jessica Garnett
PARTIES, RESPONDENT:	Malcolm J Kerridge
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT	Sparke Helmore, Mr Lowe
TRIBUNAL MEMBERS:	Ms J. Lennard
DATES OF HEARING:	13 February 2012
PLACE OF HEARING:	ACAT Canberra

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: