| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HAYWOOD by his next friend JILL MARGARET HAYWOOD -v- SMITH & ANOR [2005] WADC 81 CORAM : O'BRIEN DCJ HEARD : 14 & 15 MARCH 2005 DELIVERED : 28 APRIL 2005 FILE NO/S : CIV 764 of 2002 BETWEEN : CHRISTOPHER PAUL HAYWOOD by his next friend JILL MARGARET HAYWOOD Plaintiff
AND
LINDSAY SMITH
First Defendant
JARRAD HUMPHRIES
Second Defendant
Catchwords: Personal injuries - Escaping horse - Whether exercise of the horse should be in fenced area - Whether training method negligent
Legislation: Nil
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Result:
Plaintiff's claim dismissed Representation:
Counsel:
Plaintiff : Mr K S Pratt
First Defendant : Mr B G Bradley
Second Defendant : Mr B G Bradley
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Mullins Handcock
Second Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Swain v Waverley Municipal Shire Council [2005] HCA 4
The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Case(s) also cited:
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
Cekan v Haines (1990) 21 NSWLR 296
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Retsas v Commonwealth (1976) 50 ALJR 104
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
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1 O'BRIEN DCJ: On 12 January 2001, Christopher Paul Haywood ("the plaintiff") was seriously injured when he was knocked over by a horse. This action is to determine liability for the plaintiff's injuries.
2 For about six months before he was injured, the plaintiff had been working as a gardener at Kentucky Lodge which contained stables rented out to horse trainers. 3 The horse was being exercised on a bush track across the road from the stables when it was startled, broke free from its handler and headed back to the stables, colliding with the plaintiff as he was in the driveway at Kentucky Lodge. 4 The plaintiff claims that the defendants are liable in negligence for the method of training the horse and/or training the horse in an unfenced location. 5 The plaintiff suffered brain damage and cannot recall the circumstances of the accident. There were no other witnesses to the accident.
Factual background 6 Most of the evidence relating to the relevant factual circumstances is not in dispute. 7 Kentucky Lodge is located at the dead end of Kentucky Court in Jandakot. The first defendant, Lindsay Smith, and the second defendant, Jarrad Humphries, rent stables from the owners of Kentucky Lodge. 8 Mr Smith is licensed through the Western Australian Turf Club ("WATC") as a trainer of thoroughbred horses. He has been training horses for 20 years. His undisputed evidence establishes that he is a very experienced and successful trainer. 9 In January 2001, Mr Smith had been training the horse called Classic Pride for three or four months. Classic Pride had previously done a pre-training centre course. Mr Smith said that Classic Pride had no "vices" and had never been a problem. 10 Mr Humphries has been licensed with the Western Australian Trotters Association ("WATA") to train pacers for 10 years. Prior to that, he had spent his "entire life" around horses.
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11 Mr Humphries shared stables at Kentucky Lodge with Mr Smith and another trainer.
12 Mr Smith and Mr Humphries had an informal agreement whereby Mr Humphries or one of his staff would train Mr Smith's gallopers from time to time at Mr Smith's request. 13 Both trainers used the bush track across the road from Kentucky Lodge to train their horses. The track was a dirt track used as a fire break. It was "pear" shaped and about 1,000 metres long. The track circled quite thick natural bush. The track was bounded on one side by the Mitchell Freeway. There was a cyclone fence about four feet high along this side of the track. Between the track and the freeway was an area of about 80 metres. Alongside the freeway a bicycle path was being constructed. This was not yet in use. 14 The track alongside the freeway was on a rather large hill which descended in a northerly direction. 15 The other side of the pear shape track was bounded by Kentucky Court. As I understand the evidence, the only part of the track which was not fenced was the side along Kentucky Court. The "bottom" of the pear joined another vacant block and that part of the track and the vacant block were separated by a fence. There is no detailed evidence of the length or type of the fencing. 16 For about 60 metres from the entrance to the track, south along the track there was low scrub. Thereafter the bush became quite thick. Varying thicknesses of bush grew in this area. 17 There were no houses in the vicinity except for Kentucky Lodge. 18 The horses would exit the driveway of Kentucky Lodge, cross Kentucky Court and enter the track at the northern end (the top of the "pear"). The horses would be exercised in an anti-clockwise direction, as all races in Western Australia are run anti-clockwise. 19 On 11 January 2001, pursuant to his agreement with Mr Humphries, Mr Smith instructed an employee of Mr Humphries, Craig Billingham, to exercise Classic Pride on the morning of 12 January 2001. Mr Smith wrote the instruction in a diary where trainers wrote instructions to employees as to the exercise programme for particular horses.
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20 Mr Billingham was called by the plaintiff. He was the full-time stable foreman in January 2001. His duties included working or exercising the horses, feeding them, their general care and attention and general stable duties.
21 Mr Billingham is a qualified and licensed reinsman. There was no challenge to Mr Billingham's experience, expertise or general ability to handle horses. 22 Mr Billingham was instructed to exercise Classic Pride by running the horse alongside a jog cart pulled by one of the pacers trained by Mr Humphries. I explain this method of exercise in more detail below. 23 At the top of the hill on the freeway side of the track, Mr Billingham noticed a water truck reversing up the cycle path. When the horses reached mid point along the track, the sprinklers on the water truck came on, making a hissing sound. Mr Billingham testified that both horses were startled or "spooked" and bolted. He was unable to retain his grip on Classic Pride's lead and the horse escaped, running around the rest of the track and eventually entering the driveway to Kentucky Lodge where it collided with the plaintiff. 24 The plaintiff was found lying on the ground in the driveway by the owner of Kentucky Lodge shortly thereafter.
The plaintiff's claim 25 The plaintiff claims that Mr Smith was negligent in that the method of training directed by him and used by Mr Billingham on 12 January 2001 was unsafe and/or that it was carried out in an unfenced "paddock". The plaintiff claims that the risk of Classic Pride being startled and escaping and the consequent risk of harm to the plaintiff or other individuals were each foreseeable. This is the way I interpret the plaintiff's claim although the pleadings were not so expressed in terms. 26 The plaintiff claims that Mr Humphries was directly negligent in that he failed to ensure: 1. that Classic Pride was properly controlled; 2. that Classic Pride was not taken outside of an enclosed paddock without first being properly controlled by Mr Billingham; and 3. that when Classic pride was taken to an unfenced paddock, that Mr Billingham exercised proper control, especially when he was riding a "spider attached to another horse".
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27 In addition and in the alternative, the plaintiff claims that Mr Humphries was vicariously liable for the negligence of Mr Billingham. Although particulars of Mr Billingham's negligence were not pleaded, the case proceeded on the basis that Mr Billingham's negligence was related to the failure to control Classic Pride as outlined above.
28 At the end of the evidence, counsel for the defendants abandoned (properly so in my view) their claim that the plaintiff was negligent or that the plaintiff's actions constituted contributory negligence. 29 In essence, Mr Smith asserts that he did not owe a duty of care to the plaintiff and otherwise claimed that Mr Billingham exercised proper control of the horse and that the training method was proper and appropriate. 30 Mr Humphries' defence was couched in terms of a general defence.
Issues 31 The issues for determination are as follows: 1. was it negligent to exercise Classic Pride on the unfenced bush track; 2. was the training method unsafe; 3. did Mr Billingham exercise proper control over Classic Pride; 4. was it too inconvenient and/or expensive to exercise Classic Pride in any other way and/or in another fenced area.
The training method 32 Mr Billingham testified that he adopted the following method when exercising Classic Pride on 12 January 2001. The pacer was harnessed to a jog cart. A jog cart is a heavier version of a spider and is used for training purposes. Classic Pride was fitted with a head collar and full bit. The full bit operates like a brake. It enables the jockey or handler to control the horse. When horses are educated they are taught to respond to full bits. I shall refer to this procedure as "the training method" in this judgment. 33 Mr Billingham held the reins of the pacer in two hands and had the lead rope wrapped over his forearm and held loosely in his right hand. The lead rope was attached to Classic Pride's head collar and full bit. Classic Pride was led alongside the right hand side of the jog cart.
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34 Mr Billingham testified that he had a secure grip of the lead rope. He said that Classic Pride was an easy horse to handle, that he was well broken in, educated and he had never had a problem with the horse before.
35 There was no evidence to the effect that Mr Billingham's training method was carried out in other than a competent manner. To the contrary, the evidence establishes that Mr Billingham had no alternative in the circumstances other than to release his hold on the lead rope when Classic Prince bolted.
Evidence of Lindsay Smith 36 Mr Smith is licensed as a trainer of thoroughbreds through the WATC. He has been training horses for 20 years. He has trained "Group 1 winners" and over the last six years or so has had 12 to 15 horses in his stable at any one time. 37 There was no challenge to his experience or expertise as a horse trainer. 38 He testified that he had trained Classic Pride for three or four months before the accident. Classic Pride had come from the "educator" three quarters fit. After six months with him, the horse was found to be "too slow". 39 Mr Smith testified that Classic Pride had been sent to "the best educating centres". The horse was "a pleasure to handle". 40 Mr Smith said that he used the training method every day as well as riding horses and leading them. He said that he had used the bush land opposite Kentucky Lodge for 17 years. Classic Pride had been exercised using the training method at least 15 times before the accident. 41 Mr Smith testified that the only difficulty he has ever had with the training method adopted by Mr Billingham was on one occasion where he put a galloper into the jog cart and the shaft broke and "basically nothing happened." Mr Smith testified that he would do around 60 laps of the bush track a day leading a horse alongside a jog cart. 42 Mr Smith said it is not necessarily the case that a horse being led by an attendant on foot, which is spooked, will be easier to control that a horse being led alongside a cart. Horses are able to jump from a standstill to 30 miles an hour and can jump straight into a gallop. If this happens it is very difficult to hold on to the horse. Mr Smith testified that if he had been riding Classic Pride when it was startled, he probably would have
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fallen off. Further, he said that is was more than likely that he would have lost control of the horse even if he had been leading it on foot.
Evidence of Jarrad Humphries 43 Mr Humphries has been a trainer of pacers and a license with WATA for approximately 10 years. Prior to being licensed himself, he had worked for two leading trainers. He testified that Mr Billingham was a competent horseman who knows what he is doing. 44 Mr Humphries testified that the training method had been used throughout his career. He said "the occasional horse" might get away but he has "never had any injuries or problems with horses or people …" Mr Humphries also said that he has "lost" horses when he has had two hands on the lead rope. If a horse "wants to take off, it's going to take off."
Expert evidence 45 Several experts in the training of horses were called to give evidence. 46 The evidence of the experts, Mr Billingham, Mr Smith and Mr Humphries had some common features. They include the following: 47 Horses are sensitive animals. It is difficult to predict when they will be startled or spooked. A horse may be spooked by a variety of occurrences, including wind. If a horse is spooked, handlers try their best to calm the horse down and regain control. There will be occasions because of the sheer size and strength of the horse when control will be lost and the horse will break free of its handler. Experienced handlers (I refer here to jockeys, trainers, reinsmen and the like) are trained in how to control horses. Sometimes there is no alternative but to let the horse go. The weight of the expert evidence is to the effect that it is not possible to predict what a startled horse will do if it escapes its handler. There is no guarantee that the horse will return to its stable. Only Mr Lord (the plaintiff's expert) testified that this generally happens. Mr Smith said it "sometimes" happens. 48 Some training areas are fenced. Some are not. There are many areas in and around the Perth metropolitan area where local councils have set aside places for horses to be exercised. These places are not fenced. There are many bridle paths in and around the Perth metropolitan area which are not fenced. These are used by horse riders for recreational purposes, as well as for training of gallopers and pacers using jog carts. Whether a handler is better able to control a horse if the horse is being
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ridden, or if the handler is on the ground leading a horse, as opposed to exercising a horse alongside a jog cart, depends on the circumstances. According to one witness, in most cases, it is easier to control a horse that is being ridden as long as the rider does not fall off. 49 It is a very common practice for horses to be led around in unfenced areas. This includes the areas set aside for horse training by local councils including bridle paths. 50 I turn now to examine the evidence of the expert witnesses in more detail.
Evidence of David Lord 51 Mr David Lord was called by the plaintiff. He testified that he had been involved with horses since he was about 12 or 13 years of age. About five years ago he obtained his WATA Trainers Licence. He has not been involved in the training of gallopers. He classified himself as a part-time trainer, and under cross-examination conceded that he was an "amateur". 52 Mr Ford has his own property on which is located two stables, four yards and a training track which is fenced. 53 Mr Ford testified that it is a common practice in the racing industry to lead a horse in the same way as Mr Billingham was exercising Classic Pride. He said that he used to adopt the same methodology. 54 However, three years ago he stopped this practice as he was leading a horse which was spooked by something, pulled back and escaped. The horse ran back to the stable. 55 He said after this experience he did not use this training method again as he considered it to be dangerous. 56 Prior to this incident, he said he did not have an opinion as to whether the practice was safe or otherwise as it was a common practice. He said it depends on whether the area is fenced as to whether the practice is safe. 57 He said that his horse which escaped was one he knew and one which had a good temperament. He said that all horses are different and have a mind of their own, especially if they are using the jog cart.
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58 It would appear on the strength of one episode where the led horse escaped, Mr Lord stopped using that particular method of training. He did not give any details as to why he considered the practice to be unsafe. However, the gist of his evidence is that he considers the practice unsafe unless the training area is fenced.
Evidence of Frederick Ross Kersley 59 Mr Kersley was called as an expert witness on behalf of the defendants. Mr Kersley has been training horses including trotters, pacers and thoroughbreds for around 48 years. He has trained thoroughbreds for the last 18 years. He is a licensed trainer of both pacers and thoroughbreds. He is a member of many associations associated with the owning and training of horses. He has been the leading WATA metropolitan trainer and reins man in Western Australia on 17 occasions. He has trained and driven the winner of every major trotting race in Western Australia including three Western Australian pacing cups. He is the first trotting trainer in Western Australia to be licensed as a thoroughbred trainer since the late 1950's. 60 Mr Kersley trained the champion racehorse, Northerly. His horses have won numerous prestigious races throughout Australia. 61 I have no doubt that Mr Kersley is extremely experienced and successful as a trainer of pacers and thoroughbreds, and is very well respected throughout Australia in that capacity. 62 Mr Kersley was of the view that the training of Classic Pride on 12 January 2001 as outlined by Mr Billingham is: "a normal way of working horses" in Western Australia and across Australia. 63 If the horse is startled, it is an unwritten rule, in the interests of safety, to allow the led horse to go free and maintain control of the horse being driven. There will be circumstances that arise from time to time which are unpredictable. 64 There will be situations where a horse is being led on foot with a lead rope, and after being startled, pulls free and escapes. Generally horses are well mannered and well behaved, but if they are startled they will panic and are too strong for any man to control. Mr Kersley said that is an unusual event but at any given time it is possible that it will happen. 65 Mr Kersley testified that a startled horse does not necessarily always escape. However, he said that escape is highly likely depending on how
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much the horse has been spooked. Sometimes a horse may simply want to let off a bit of surplus energy. That then becomes a test of strength between the horse and handler, and "the horse will win every time." He has seen horses get into "a mad bolting syndrome" or "panic mode" and run through fences. 66 Mr Kersley testified that there will be occasions where a horse led as was Classic Pride, will escape. Similarly, a horse which is ridden may dislodge a rider. It is inevitable that this will happen even to the most professional of riders. 67 Mr Kersley said that he has seen two and as many as four horses led off a sulky. It is a practice that he has seen across Australia and which is not unusual. 68 Mr Kersley would not agree under cross-examination that Mr Billingham was much less likely to be able to control Classic Pride holding the lead rope in one hand than and an attendant leading the horse with two hands. In effect, Mr Kersley testified that it depends on the circumstances prevailing at the time. 69 Mr Kersley was adamant that "it's generally perfectly acceptable and perfectly safe to drive one horse and lead another horse in the sulky". He said it is a practice which he adopts and which everybody else he knows within the racing fraternity has adopted from time to time. 70 Mr Kersley testified that it is up to the particular trainer training a particular horse to determine the training methodology. Some horses are trained exclusively on race tracks. Sometimes it is preferable that horses are trained away from the race environment so they learn to relax. Some horses relax better if they are led. The workload may be too much if they are ridden daily. 71 Mr Kersley testified that the majority of horses in Australia are trained in unenclosed paddocks. He said that "bush land training along fire breaks or in open space is what I consider to be normal practice." 72 He said that if there was a prohibition on training horses in open, unfenced areas such as beaches, near rivers, or in bush land, there would be very limited opportunities to train them. He said that Ascot and Belmont, the registered race tracks in Western Australia, have no on-course facilities for the stabling of horses. Lark Hill, which is in the southern districts area also does not have any stables on site. The majority of training takes place away from racing venues.
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73 Mr Kersley testified that the average trainer would not have enough land to provide a satisfactory training track. Those trainers would use adjacent bush land or an area designated for training purposes such as bridle paths.
Evidence of Luigi Luciani 74 Mr Luciani has been in the thoroughbred racing industry since he commenced a career as an apprentice jockey in 1972. In 1979 he became a racehorse trainer. He trained in the United Kingdom and Europe, and then worked as a private trainer for some time before becoming a public trainer in 1983. He is an A class trainer, licensed with the WATC, and has been the leading trainer in Western Australia with metropolitan wins on eight occasions. He consistently has a team of about 30 horses in full work at his stables in Ascot. 75 He has observed training methods in England, Ireland, Hong Kong, Singapore, throughout Malaysia, New Zealand and Australia. He has observed the training method adopted by Mr Billingham "a fair bit" and has also utilised the method himself both as trainer and rider. 76 He testified that in the Ascot area there is a small track adjacent to the main race track which is about 400 metres long. There are also bridle paths extending along the Swan River towards Garvey Park. There is a housing estate around the area, but between the housing estate and the river, there is an area of about 50 or 60 acres set aside for the exercising of horses and dogs. That area is not fenced. It is bordered on one side by the Swan River and on the other by the Great Eastern Highway, with some houses in between. 77 Mr Luciani's stables are about 400 or 500 metres from the Ascot Race Track. His stables are separated from the track by public roads and a car park. He leads his horses across the roads and through the car park to the track on a daily basis. Usually one handler leads two horses. 78 Mr Luciani was of the view that due to timing issues, the cost, the impracticability, the effect on race tracks and the horses it would be "near on impossible" for all training to take place at race tracks. 79 Mr Luciani testified that there is a risk that a horse can break free anywhere and at any time. This is because a horse is a flight animal and is not a fighting animal.
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80 He testified that even if a person is riding a horse which is fitted with a bit, and the horse is startled, if it gets into its head that it is going to flee, it defies logic that a 70 kilo person would be able to hold the horse.
81 When asked under cross-examination why everyone cannot train in fenced premises, Mr Luciani gave the obvious answer that he had been successful in his career, and that not everybody is as fortunate or as lucky as he has been to have his own track. However, he said that he has exercised horses in bush land, the river and the beach.
Factual findings 82 I find that the training method is one which is standard practice in Australia and in other places in the world. It is considered by trainers of gallopers and pacers alike to be a safe and appropriate way of training a pacer if the trainer considers this to be warranted in the particular case. 83 Further, I find that there is a variety of exercise regimes used by trainers. Individual trainers may differ in their opinion as to which method is appropriate. Some, like Mr Luciani, may choose to use racetrack training almost exclusively. Others choose their method of training according to the needs of the particular horse. 84 The undisputed evidence is that horses are trained on a variety of surfaces and locations. These include race tracks, bush tracks, swimming in rivers or at beaches. Training can include horses being ridden or led in the manner described by Mr Billingham. The training methodology is entirely up to the discretion of the particular trainer. There was a deal of cross-examination aimed at establishing that training can usually be done in a fenced racetrack area. However, the overwhelming weight of the expert evidence is that no one training method and location suits all horses. 85 I find that the facilities for racetrack training are limited in the Perth metropolitan and outer metropolitan area. It would be impractical for the reasons expressed by Mr Luciani to require all horse training to be on available racetracks. 86 In my view, it would be inappropriate for a court to determine that one particular method (such as racetrack training) should be utilised in all cases. I do not understand the plaintiff to be advocating a finding to the contrary. The undisputed evidence supports a finding that horses are commonly trained in unfenced areas. Further, it is common for horses to
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be ridden recreationally in unfenced areas. Some of these areas are provided by local councils. Some are in the vicinity of built-up areas. 87 Mr Luciani is not aware of any horse escaping and colliding with a person. Although he did not see it, he is aware of a horse escaping from Ascot and colliding with a car. 88 Mr Kersley had not heard of an escaping horse colliding with a person. 89 There is no other evidence on the issue of how frequently escaping horses cause injuries to persons. 90 However, all witnesses testified that horses do get free of their handlers no matter what training method is utilised. Given the respective sizes of horse and human, the horse will almost inevitably win any struggle to control the horse if it "decides" to break free. 91 The evidence is that the risk of injury to passers-by if a horse escapes is minimal. Not one example of such injury was adduced in evidence. 92 Despite this evidence, in my view, there must be situations where injuries are caused by an escaping horse. However, the experienced trainers who testified in this case gave no evidence of such a case. 93 There was no evidence that Classic Pride was a horse with a history of escaping. The evidence establishes that the horse had been well educated, was familiar with the training method used on 12 January 2001 and had no known vices or behavioural problems. 94 The training method was carried out in accordance with standard practice in a competent manner. 95 Horses can be startled in a number of ways and circumstances. Horses behave unpredictably when startled. 96 In this case, the risk of the horse escaping if it were startled is one which is acknowledged by all witnesses who testified on the issue. This is regardless of the place and circumstances in which the horse is exercised or trained. It would not be far fetched or fanciful that if a horse escaped, there is a risk that a pedestrian, handler, motorist or other person in the horse's path might be injured, depending on the circumstances. That risk is a foreseeable one.
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The law
97 The principles of law relating to negligence and the burden of proof are well settled. Mason J held in The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40 at 47 - 48: "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." 98 In Swain v Waverley Municipal Shire Council [2005] HCA 4 Gleeson J held at [5] as follows: "In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk free environment. The measure of careful behaviour is reasonableness, not elimination
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of risk. Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers." 99 The burden is on the plaintiff to establish that there existed a reasonably practicable method of avoiding the risk. McHugh J at [22] and at [40] in Swain (supra) said: "The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there 'must be' a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk."
The claim against Mr Humphries 100 The claim against Mr Humphries was that he was vicariously liable for the negligence of Mr Billingham and also directly negligent. I have already observed that particulars of Mr Billingham's negligence were not pleaded specifically. In my view, there is no evidence to establish that Mr Humphries was negligent in the way claimed in the plaintiff's statement of claim or at all. 101 Mr Humphries was not on site when Classic Pride was exercised on 12 January 2001. The evidence only establishes that he agreed to allow his staff to exercise Mr Smith's horses if there were any "spare cart horses with lead horses off them". There is no evidence that he even knew that Classic Pride was to be exercised on 12 January 2001, let alone any relating to Mr Billingham's control of Classic Pride. 102 In this case, the training method is used widely in Australia and also overseas. It is considered safe and appropriate. The evidence establishes that Mr Billingham carried it out in a safe and appropriate way. 103 At one stage during the trial it was conceded, in effect, by counsel for the plaintiff that the evidence did not establish that Mr Billingham's control of Classic Pride was negligent (T75). However, in closing
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submissions, the plaintiff's counsel submitted that Mr Billingham was negligent in the way he conducted the training method in the way he held the lead ropes. There is no evidence to support this submission. 104 I would therefore dismiss the plaintiff's claim against Mr Humphries. 105 The High Court has recently discussed the law of negligence and the burden of proof on the plaintiff. An issue is whether Mr Smith was in breach of his duty to take care to avoid injury to persons in the vicinity of an escaping horse. The plaintiff contends that Mr Smith breached his duty by directing that Classic Pride be exercised in an unfenced area, and that to avoid injury, Classic Pride should have been exercised in an area which was fenced. 106 The plaintiff contends that Classic Pride should have been exercised in a fenced area such as on a race track. 107 However, the overwhelming evidence is that it is a matter of personal preference for a trainer to determine the training regime for a particular horse. 108 There was no evidence as to who owned the bush land where Classic Pride was exercised. There was no evidence as to who had erected the fence along the freeway side of the track. There was no evidence as to the practicability and/or expense of fencing the track. It was not suggested in the course of the plaintiff's case that Classic Pride should not have been exercised in that particular bush land area. 109 Even if the bush land where Classic Pride was exercised had been completely fenced, there is no guarantee that the injury to the plaintiff would have been avoided. The evidence is to the effect that whether a horse is being exercised on a race track, beach, in the river, in bush land or on a bridle path, there is a risk of escape if the horse is startled. There was evidence from Mr Kersley that he had seen horses crash through fences when startled. 110 The risk of injury might well have been reduced had the bush land area been completely fenced. However, this might depend on the type of fence erected and the degree of panic and fear generated in the horse by the water truck. These are issues upon which I cannot speculate. 111 In summary, I find that the plaintiff has not established that Mr Smith was in breach of his duty of care to take reasonable steps to avoid injury to the plaintiff. The training method used by Mr Billingham
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was safe and appropriate. Mr Billingham was not negligent in the way that he utilized the training method on 12 January 2001. The risk of the horse escaping when startled was a reasonably foreseeable one. The risk of injury, on the evidence presented at trial, was remote. The plaintiff failed to show that there was a reasonably practicable alternative available that would have eliminated a reasonably foreseeable risk of injury. Mr Smith took all reasonable steps to ensure that Classic Pride was exercised by a person who was competent and experienced. 112 The plaintiff suffered serious injuries resulting from the collision with Classic Pride. However, for the reasons outlined above, I find that the collision was a tragic accident. 113 I am unable to find that either of the defendants was negligent as claimed or were in any other way responsible. 114 I would dismiss the plaintiff's claim.
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