Hobbs v Fairall and Fairall

[2016] NSWDC 116

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hobbs v Fairall & Fairall [2016] NSWDC 116
Hearing dates:	2-6 May 2016; 11-12 May 2016
Date of orders:	26 May 2016
Decision date:	26 May 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff against the defendants for $339,242.40
Catchwords:	CIVIL – Action for damages for personal injury – Claim under Motor Accidents Compensation Act 1999 (MACA) – Plaintiff thrown from horse whilst riding along side of bitumenised road, on road reservation – Plaintiff alleges his horse startled by motor vehicle owned by first defendant and driven by second defendant – Factual dispute – Question of what caused horse to shy and buck – Other arguments included noise of motorcycle being ridden behind defendants’ vehicle, overfeeding (“overfuelling”) of plaintiff’s horse; numerous possible stimuli – Whether a “motor accident” within MACA – Negligence – Whether “blameless motor accident” within MACA   Quantum of damages – Plaintiff 64 years at time of accident, 69 at trial – Whether plaintiff would have worked to age 70 years – Severely injured – Quantum of non-economic loss (19% WPI)
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
Cases Cited:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Axiak v Ingram [2012] NSWCA 311 Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89 Cook v Cook [1986] 8 CA 73:(1986) 162 CLR 376 Gordon v Truong [2014] NSWCA 93 Hawthorne v Hillcoat [2008] NSWCA 340 Hossain v Mirdha [2015] NSWDC 108 Leach v The Nominal Defendant [2014] NSWCA 257 Mamo v Surace [2014] NSWCA 58 Mani v The Nominal Defendant [2002] QSC 152 Marien v Gardiner [2013] NSWCA 396 McLennan v The Nominal Defendant [2014] NSWCA 332 Melenewycz v Whitfield [2015] NSWSC 1482 Nettleton v Rondeau [2014] NSWSC 93 O'Brien v Davjam Enterprises Pty Limited [2014] NSWDC 270 Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 Nominal Defendant v Hawkins [2011] NSWCA 93 Syed v Crumpton [2016] NSWSC 500 Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89.
Category:	Principal judgment
Parties:	Anthony Hobbs (Plaintiff) Carolyn Maree Fairall (First defendant) Holly Lee Fairall (Second defendant)
Representation:	Counsel: Mr I Roberts SC (Plaintiff) Mr B Wilson (Defendants)   Solicitors: Walsh & Blair (Plaintiff) Hall & Wilcox (Defendants)
File Number(s):	2014/00179721
Publication restriction:	No

Judgment

Ex tempore

1. HIS HONOUR: The plaintiff, Mr Anthony Hobbs, of Cartwrights Hill, a northern suburb of Wagga Wagga, brings an action for damages for personal injuries sustained by him on 24 September 2011 when he was thrown from a horse he was riding beside the carriageway of Cooramin Street, Cartwrights Hill. The plaintiff alleges that the negligence of the second defendant, Ms Holly Lee Fairall, caused his horse to throw him from the saddle onto the kerbing and guttering on the north side of Cooramin Street. The second defendant was driving a motor vehicle, registered number BE 71 NA. That vehicle was owned by the first defendant, Mrs Carolyn Maree Fairall, the mother of the second defendant. The plaintiff alleges that the circumstances of his suffering personal injury were a "motor accident" as that term is defined in the Motor Accidents Compensation Act 1999 (MACA) and that his claim for damages is governed by the provisions of that Act. The plaintiff says in the event that the Court is not satisfied that the injuries that he sustained were caused by the fault of the second defendant, for which the first defendant is by statute vicariously liable, then he was the victim of a "blameless motor accident" as that term is defined in MACA.

2. To understand the case it is necessary to consider a number of matters in advance of considering liability. Those matters are the plaintiff's background; the background of the horse that he was riding at the time, a horse known as Buck; the background of the second defendant (but only briefly); the nature of the motor vehicle which she was driving and the topography of Cooramin Street, which is quite important in determining issues concerning liability. I need to discuss the background of the plaintiff in any event when assessing damages, which I am required to assess whether the plaintiff be successful in his claim or not.

The plaintiff’s background

3. The plaintiff was born in the United Kingdom on 30 November 1946. At the current time he is 69 years old. In or around 1952, the plaintiff emigrated with his family to Australia but the plaintiff and his family only stayed in this country for a brief period. They then crossed the Tasman Sea and settled in New Zealand. The plaintiff was educated at schools in both Rotorua and Auckland. In mid-1961, he left school at the age of 14 and a half years. Whether he gained the then New Zealand equivalent of the then New South Wales Intermediate Certificate has not been disclosed. The plaintiff told me that he was an "average" student. The plaintiff then took up working in dairy farms. He worked on three different dairy farms, one of them he identified as being at Mattamatta. His work on the dairy farms involved his milking the cows twice daily, harvesting, making sod, fencing and general maintenance work. He rode a horse on the dairy farms to round up errant stock for the morning and evening milking sessions. In addition to that work, the plaintiff did a little contract fencing work in New Zealand.

4. In late 1966, when he would have been approximately 20 years old, the plaintiff came to Australia with a friend he described as his "mate". They travelled to North Queensland and became stockmen at Mt Ravensworth station, which was on the road between Townsville and Charters Towers. The plaintiff described the Mt Ravensworth station as being a couple of hundred square miles on the Burdekin River. The plaintiff worked at the Mount Ravensworth station for eight months. As a stockman, he rode horses. He and his mate then went to the Mt Isa mines, where he worked as an underground miner for a little over two years. The reason to undertake underground mining work was to earn more money than could be earned as a stockman. However, the plaintiff preferred life as a stockman. In late 1969 he returned to work as a stockman. He worked on a large number of stations in the Gulf country of North Queensland, and on one station in the Northern Territory. The stations in the Gulf country were on average 1,200 square miles; the one in the Northern Territory was 3,000 square miles. All of his work as a stockman was on horseback. Essentially, he was mustering cattle and driving them. He liked the work. He did not have his own horse, but used horses provided at each station by the station owner or manager. During the period from 1969 to 1976, a period of at least six years, the plaintiff was employed full-time as a stockman. He rode many different horses and acquired many skills, both as a horseman and in dealing with cattle.

5. In 1975, he travelled to Tumbarumba to compete in a rodeo. At the Tumbarumba rodeo, he met a young lady from Wagga Wagga, who is identified in the evidence merely as Kathryn. In 1976 he moved to Wagga Wagga where Kathryn was living, obviously to court her. The couple were married on 26 November 1977. The plaintiff was then 31 years old. The plaintiff's marriage to Kathryn remains intact. Mrs Kathryn Hobbs gave evidence concerning quantum in the plaintiff's case.

6. When he arrived in Wagga, the plaintiff found work at the Wagga stockyards in Travers Street, in horse sales. He was introduced to a firm of local builders known as Baker Bros. He joined their business as a builder's labourer. However, he rapidly picked up the skills of carpentry and he referred to himself as an "adult carpenter", a man who was a practical carpenter but did not serve any apprenticeship or gain any certificate to prove that he was a carpenter. On 30 July 1980 the couple's first son, Jordan, was born.

7. In 1981, the plaintiff started to work in road construction. He worked on a number of road construction projects. The first one was on the Federal Highway at Collector. Later he was to work on projects on the Hume Highway at Gundagai, Coolac and Kyeamba. He also worked on that Highway, north of Gundagai, near the "Dog on the Tuckerbox". A second son, David, was born on 26 April 1982 and a daughter, Jemma, was born on 6 April 1987.

8. In January 1990, the plaintiff commenced to work at the Charles Sturt University in Wagga Wagga as a construction labourer and later as a carpenter. He worked for the University until taking work with a firm known as Peyton (? Paton) Seibles because work had run out at the University. The plaintiff worked for Peyton Seibles as a construction carpenter for one year between April 1996 and April 1997. The plaintiff then returned to the University to work again as a carpenter. There was again work available at the University.

9. In May 1998, the plaintiff moved from the construction group at the University to what is known as the Division of Facilities Management. He worked as a janitor, caring for university buildings. The reason the plaintiff took that transfer was to remain in the employment of the University and, in particular, to grow his superannuation account.

10. Since moving to Wagga Wagga, the plaintiff had kept up his interest in horses. He owned his own horses and rode them regularly. His children were also interested in horses. He went to gymkhanas and rodeos and other horse shows with his children. The other horse shows were described as "Bushman's type horse activities". Involved in those was team pinning. He maintained that even when he wasn’t working with horses, he was still regularly riding them. He was not cross-examined about that and that appears to be a datum in this case.

11. In either late 2007 or early 2008, the plaintiff applied for an advertised vacancy in the School of Animal and Veterinary Science. The advertisement called for expressions of interest from those who had a lot of experience with horses and other large animals. The job itself was called "Technical Assistant (Cattle)". The plaintiff was interviewed for this job. It appears that the interviewing panel comprised of four persons, Professor Kim Abbott, the Head of the School of Animal and Veterinary Science, Mr (now Professor) Peter Chenoweth, Ms Heather Ip, an equine lecturer, and another lady described by the plaintiff as a “lass" from the Human Resources area of the University.

12. Evidence about the interview was given by Professor Chenoweth by audio link. At the time of giving evidence, Professor Chenoweth was the Head of the School of Veterinary Sciences at James Cook University in Townsville. Professor Chenoweth thought the panel comprised only two people, Professor Abbott and himself, but the evidence of the plaintiff tells me that there were four. I can understand Professor Chenoweth only considering the two more senior people at the meeting, his immediate superior and himself. Professor Chenoweth said this about the position for which the plaintiff had applied:

"We were looking for someone who was proficient in handling large animals, cattle and horses would come into that because the job involved not only getting animals ready for practical classes but also working with students, some of whom were not very experienced, with large animals. So the applicant not only had to be patently competent in those skills but also we were looking for someone who could relate well to students and interact with both students and staff appropriately."

At the time of the interview the plaintiff was aged 61. The question of the plaintiff’s age was raised and that remained in Professor Chenoweth’s mind because he thought that Professor Abbott, who raised the question, may have been “politically incorrect” in raising such a matter. Professor Chenoweth gave this evidence:

“Q. During the interview process, did either you or Professor Abbott raise with the plaintiff the fact that he was by then 61 years old and may not have had a lot of time left to be working at the university?

A. Professor Abbott raised that point. I can’t remember exactly the words but it imprinted itself on my memory because I had this feeling that that was not politically correct of him to ask that question.”

The Professor then went on to give this explanation of what the plaintiff said at the interview about his age:

“..this job was something that he really aspired to and that he was very excited or interested in it and he was not thinking about retiring. In fact, he was going to work until at least 70.”

That is also the evidence of the plaintiff himself. It is clear from Professor Chenoweth’s evidence that he and Professor Abbott were quite impressed with the plaintiff’s application and he was awarded the position on 26 May 2008.

13. The plaintiff performed very well in the role of “Technical Assistant (Cattle)”. When he commenced that work he was level 3, step 1, in the University employee hierarchy and when he finished up he was level 4, step 4, that is, he progressed eight steps during the period that he had this job. The plaintiff gave this evidence about his work as the Technical Assistant at the University:

“Q. What did your job involve?

A. My job involved a technical assistant working under another technical officer looking after all the cattle on the place and assisting students with their lessons, preparing the cattle, preparing the labs for the job, it may be A1, brake testing, cattle handling, even mustering cattle, doing their feet, Caesar bracket.

Q. Was there a fair bit of job done on horseback?

A. I did the Caesar cows on horseback, when I brought them in, in the morning because they were a little bit waspy, if you know what I mean, they’re a little bit touchy, they’ve got young calves at foot and they can have a go at you, so on the horse I could just up them around a lot easier, sir.

Q. Did you have some role instructing students as to how to deal with large animals safely?

A. Yes, sir.

Q. Was that a significant part of your job?

A. It was, and I was really proud of bringing them through.”

The plaintiff went on to say that there were a number of students from the city who had no experience of horses and cattle and it gave him immense pleasure to train them to deal with large animals and that training was often done by practical means rather than mere lecturing. In cross-examination the plaintiff told me that the cattle at the University were Black Angus cattle and he again referred to them as being “very waspy animals.” I know from a history given by the plaintiff to Dr ALG Smith, who was qualified by the defendants’ solicitor, that there were 500 Black Angus cattle at the Charles Sturt University.

14. The plaintiff won awards from the University administration. He was given what was known as the Vice Chancellor’s Innovation Award. He described that in this fashion:

“We […] had our back to the wall, the School was going to be officially opened […] a diagnostic lab it was, and they had to have a way of getting rid of the body parts and guts and stuff like that [of animals] and they wanted to spend $80,000 or $90,000 on a tractor and specials bins and I designed something that only cost them $1,800 and that’s how I got it.”

The prize was a cash award of $5,000. The plaintiff spent that money on furthering his University interests. He went to the University of Colorado and visited their veterinary school and he also attended, whilst in Colorado, the Denver Livestock Show. He told me that he wished to get a student exchange program going between the Colorado State University and the Charles Sturt University. For that purpose he had an interview with the Dean of Agriculture at the University of Colorado and a long talk with him.

15. On one occasion the plaintiff was trusted enough in his work as a Technical Assistant to be given “the cheque book” and sent to buy stud bulls for the University and on another occasion he took at meat judging team up to Armidale to visit the New England University for a week. He was put in charge of students at the meat judging challenge or activity at the UNE.

16. The plaintiff was still working as a Technical Assistant (Cattle) at the time that he was injured. It is important to note that the plaintiff was still an active horse rider in his work at the Charles Sturt University and had been for over three years prior to the accident now in question. In addition to working with horses involved in his work with cattle at the University since May 2008, the plaintiff maintained out of work hours his interest in horses, and had his own horses at his home which he continued to ride for pleasure.

The plaintiff’s property

17. When the plaintiff first moved to Wagga Wagga, and took work with Baker Brothers, he built himself a home in the suburb of Forest Hill. However, he desired a bigger property because of his interest and his children's interest in horses, so he sold that property and bought the property in which he was living at the time of the accident now in question, the property known as 88 Bomen Road, Cartwrights Hill. The property at Cartwrights Hill is of seven acres. It is divided into seven paddocks, each of an acre. On one of those paddocks the plaintiff built his house and stables. He also built on the property cattle yards and the necessary fencing. An equestrian arena was also constructed. In addition to keeping horses on the property the plaintiff also ran ten sheep, which he described by their sex as ewes.

18. The plaintiff said that the soil of his property was "not a good soil. A sandy soil." He described it by standards of the local area as "average. Not good." He described the pasture as being mainly couch grass, which covered ninety per cent of the pasture, but there was a "sprinkling of clover in there and a sprinkling of dry lucerne".

The plaintiff’s horse

19. The horse the plaintiff was riding at the time of the accident was known as "Buck". That name did not refer to any propensity or predilection of the horse, but rather to its colour, which was buckskin. The plaintiff told me that he purchased Buck about seven months prior to the accident, which indicates late February 2011. According to [12] of exhibit 1, the expert report of Mr Steven Jefferys, the purchase price for Buck was $1,200. Annexed to Mr Stevens' report are letters of instructions. One of those is a letter from the defendants’ solicitors to the plaintiff's solicitors, bearing date 22 March 2016, and a further letter requesting further particulars of 1 April 2016, and the reply of the plaintiff's solicitors to both the earlier requests, which letter bears the date 4 April 2016. Much of what is stated by Mr Stevens in his report is taken from the letter of Walsh and Blair of 4 April 2016 providing the particulars. The letter of particulars tells me two things about Buck, which were not given in evidence but they appear to be uncontroversial. The first was that Buck was an Australian stock horse, and the second was that he was a gelding. Were Buck not a gelding, but intact, then I would expect that the plaintiff would have been cross-examined about that because it might indicate that Buck was not as docile as the evidence otherwise suggests.

20. Buck was aged eight or nine years old. That evidence was given not by the plaintiff but by Mr Hunter Doughty, a lecturer in equine science at the Charles Sturt University, who was qualified to give expert evidence by the plaintiff's solicitors, but also knew Buck from his days as being a horse owned by the University. The evidence concerning Buck's age can be found at T218.33 to T218.47. Prior to buying Buck, the plaintiff had a bay mare, as well as a horse that belonged to his daughter on his property. The evidence establishes that the first owner of Buck was Mr Larry Stevens, who was a polocrosse player. Next to the plaintiff's property was a reserve where polocrosse carnivals were held and at such a carnival, the plaintiff first saw Buck. The plaintiff discussed Buck with Mr Stevens who told him that he was a "good horse". Buck then passed into the possession of the Charles Sturt University. The plaintiff gave this evidence of what he'd seen Buck doing when he was owned by the University:

"Q. What had you seen him doing?

A. I'd see him used as a lead, as they call, a lead pony for breaking in young horses. I’d seen students riding him and one of the employees at the university gave me and another girl a hand to bring some cattle back from Currawarna and he used [him] as a droving horse that particular trip."

This was a cattle drive of 18 miles from Currawarna to the University campus at Wagga Wagga along the road along the river, between Narrandera and Wagga Wagga. The plaintiff has said that on that cattle drive there was traffic and trucks carrying Millgrey gravel. On that cattle drive, a dirt bike was also used by one of the stockmen and the plaintiff observed Buck not being worried by the noise generated by the dirt bike. That evidence can be found at T151 to T153.

21. In cross-examination, the plaintiff gave this evidence of Buck's workload at the University:

"Q. I just want you to make a comparison between what the horse used to do when he was being worked by the university and what the horse used to do the eight months that you owned it?

A. The horse at university was used as a lead only and a breaking-in pony in those routines. When I had the horse, it was used more as a pleasure horse, but as I said I did a fair bit of work on him.

HIS HONOUR

Q. How frequently would the university have broken in horses?

A. They had a program of breaking in once a year, your Honour.

Q. How long did the program last?

A. Over a period of about, it would be six weeks.

Q. That six week period was that in spring or autumn or mid-summer or?

A. No, they usually sort of did it in the autumn time."

Later on the plaintiff said that the horses were broken-in when they were 18 months old. The cross-examination was again taken up by Mr Wilson and the plaintiff gave this evidence:

"Q. As a lead pony, he would be quite active during the day wouldn’t he?

A. He would have been busy.

Q. Very busy?

A. I wouldn't say very busy, but busy.

Q. Well, he would have been used to be teaching students and that sort of thing wouldn’t he?

A. Yes, in periods of time, yes.

Q. Would that involve trotting or cantering during the day?

A. When he was a lead pony, he was mainly trotting in small yards, quite confined yards and then later on a bit out he’d be with them, but mainly walking with them.

Q. Would the trotting in the small yards that could be for a considerable period of time though couldn’t it?

A. Probably, probably about ten minutes per horse, there might have been three horses or four horses that they were working at.

Q. But there would be multiple lessons during the day wouldn’t there?

A. No, that would be about it, they didn’t break a lot of horses in.

Q. What I'm suggesting to you is that once you owned Buck he was far less active than when he was being used by the University, do you agree or disagree with that?

A. I don’t really agree with that.

Q. Do you agree that he was less active though when he was owned by you?

A. I rode him a lot, no, I don’t, I don’t agree with that, I reckon I rode him a lot."

The evidence given by the plaintiff about the workload of Buck at the University is corroborated by evidence given by Mr Doughty. That evidence can be found at T224.25 and T245.24.

22. Before the plaintiff actually acquired Buck he had a trial ownership. The evidence about that is:

“Q. Before you bought him did you in fact ride him for a while?

A. I rode him in an arena over at the uni, trotted and cantered him, and put him over a couple of little jumps and I bought him with the intention of having a trial. So I had him for I don’t know totalling a month just riding him and then I'll pay for him.

Q. So you had about a month before you decided to actually pay the money?

A. Yeah yeah."

Whether that month was before late February 2011 or at the commencement of late February 2011 is unclear.

23. The plaintiff bought the horse because he liked him and he was well behaved. Earlier in his evidence the plaintiff said this about Buck:

"He was the type of horse that I liked physically for a start. Good big strong horse I also liked the way he went about his job. I like - I like [a] horse like that."

The plaintiff said that prior to purchasing Buck he had never seen him misbehave and, indeed, he never misbehaved whilst he was owned by the plaintiff prior to 24 September 2011.

24. After acquiring Buck the plaintiff kept Buck on a paddock at his property but he was rotated through the paddocks once he had grazed the pasture on one paddock down. The plaintiff rode him three or four days a week. The plaintiff’s routine was to ride sometimes in the morning and sometimes in the afternoon depending on the time of the year and whether it was a weekend or not. On weekends he would ride in the morning, in summer he would ride after work and in winter he would normally also ride after work. The first thing to do was to “catch the horse” from the paddock in which he was accommodated. If it were winter and Buck was wearing a rug the rug would be removed and Buck would be led to the stables where he would be groomed and a bridle would then be put in place. The plaintiff then took the horse to the horse arena on his property and had him trot around for between four and a half dozen times. The plaintiff would then adjust the girth on the saddle to tighten it and then he would mount and they would leave the property at a walk.

25. The plaintiff gave this evidence as to the route that might be taken:

“I’d walk him ‘til I got down probably at the first gate over in the sale yard paddock or if I was walking around the stock routes or around through Cartwrights Hill I’d walk him to about East Street and then I’d walk down Cooramin Street or I went down to the pony club - I’d walk him down there and then when I got across on some good country I’d start trotting him and I’d trot him for probably 20 or 30 minutes.”

The plaintiff then said that he would sometimes ride the horse through the North Wagga Wagga Caravan Park. The inference I drew from that evidence is that the plaintiff had at least four different routes upon which he would take Buck for rides. Appendix 6 to Mr Steven Jefferys’ report, exhibit 1, is a Google map showing the location of the plaintiff’s property at 88 Bomen Street, Cartwrights Hill. Bomen Road leads from the Olympic Highway into the industrial area of Bomen. At the other end of Bomen Road lies the Main Southern railway line and there is a railway station at Bomen. A large parcel of land at the end of Bomen Road adjoining the railway line contains the local abattoir. North of Bomen Road, the abattoir and railway station is an area described as the “Livestock Marketing Centre” which is clearly a reference to the local stockyards. To go to the saleyards would require the plaintiff to ride Buck north. To go down Cooramin Street would require the plaintiff to go south and west. To go down East street would require the plaintiff to ride south. The North Wagga Wagga Caravan Park is clearly at North Wagga Wagga which is on the northern bank of the Murrumbidgee River, the main city of Wagga Wagga being on the southern bank of the river. Neither the evidence nor the map that I have used discloses where the local pony club is. However, it does not appear to have been on the route that the plaintiff took on the day of the accident. In his evidence-in-chief the plaintiff said that he liked to ride for at least two or two and a half hours. In cross-examination the plaintiff conceded that he may have instructed his solicitors that the rides that he took with Buck could have been between one and two hours but he maintained that it was more like two hours than one hour. One can accept that each ride that the plaintiff took Buck on lasted about two hours.

26. The plaintiff had no difficulty controlling Buck on any of these rides and he had never misbehaved, that is, bucked or pig rooted. The plaintiff himself thought that Buck had never been upset by traffic and he was a “well-educated” horse. Evidence was given by Mr Doughty to the effect that he considered Buck to have been traffic trained and that corroborative evidence can be found at T219.11 to T219.22. Buck stood 15.3 hands tall. In my view nothing turns much on Buck’s height because, as far as Mr Jefferys was concerned, and he has vast experience with horses, the eyes of a horse are roughly at the same height as those of an adult human. Evidence concerning Buck's height can be found at T106.29, T180 and T207.21.

27. The question of Buck's food intake needs also to be considered. As I have earlier mentioned, the plaintiff gave evidence that Buck was able to graze on the one acre paddock where he was left in between rides. In addition, the plaintiff fed to Buck what he described as a "biscuit" of lucerne each night. The size of the biscuit was the size of a small bale of hay, with a depth of some three inches. This was then turned into metrics of a bale an area of 450 or 500mm square, with a depth of 75mm. The plaintiff did not give Buck any other supplementary feed, and did not feed him with oats or corn or grain.

28. Evidence was given in chief by the plaintiff of his knowledge of feeding horses:

"Q. No doubt, Mr Hobbs, when you were working as a professional stockman, you had to feed your horse?

A: We did have to feed our horses in the stock camp.

Q. Before you became a stockman, you told me you'd been riding horses since the age of eight?

A. Yes, your Honour.

Q. Did your routines require you generally to oversee or actually feed the horses that you are riding?

A. Your Honour, when I was in New Zealand, we fed our horses hay, which is clover hay, that was when I was young, in the stock camps, a lot of them just grazed on the normal paddocks when the seasons were available, otherwise we'd feed them in nosebags, put nosebags on them with chaff in them which came from down south. I believe it to be an open chaff and they got a bit each as a substitute, but when I got down here I started feeding the horses a bit differently with lucerne and being in the uni I was learning a bit about nutritions and stuff like that, so.

Q. But, when you were working as a Technical Assistant at the university with the cattle and you were riding horses, did you feed the horses or were they fed by others, the horse that you rode anyway?

A. I fed my own horse, your Honour, I would take him home most of the time, but I left him at the uni, I fed him the same as I fed him at home, your Honour.

Q. Were you aware that from time to time of animals having problems with digestion?

A. I've seen them with colic and such diseases as that, so usually that is because they've got into something they shouldn't get into. I know the horses will fire up on grain, as I said before, your Honour.

ROBERTS

Q. Have you seen anything that morning [of the accident] to indicate that Buck was, to use your words, "fired up"?

A. No sir.”

29. Before leaving this topic, I should add this: the evidence discloses that the plaintiff had probably fallen off horses a dozen times in his lifetime, but the last time that such an event had occurred was in approximately 2002. The evidence on those issues can be found at T122.49 and T123.11.

The second defendant

30. Ms Holly Fairall was born on 3 January 1993. At the date of the accident she was 18 years old. When giving evidence she was 23 years old. She obtained her driver's licence in January 2010, very shortly after turning 17. At the time of the accident in question, she had been a licensed driver for approximately one year and nine months. She did not tell me her occupation, but I can assume she was probably in Year 12 at school. At the time of giving evidence on 5 May she was a casual secondary school teacher at the Wagga Wagga High School, teaching mainly mathematics. If she completed her secondary education at the end of 2011, she would have completed a four year university course by the end of 2015, and could well have recently commenced working as a casual high school teacher. At the time of the accident now in question, she had a provisional P2 licence ("Green Ps"). Ms Fairall had been driving the vehicle, which I shall soon describe, since January 2010.

The defendants’ vehicle

31. The vehicle Ms Fairall was driving has been described as a 1993 Daihatsu Feroza. It was a small four wheel drive vehicle. It was white in colour. It was a manual vehicle. In her evidence, Ms Fairall described the vehicle as a "soft top" but the annexure to exhibit P, a copy of the NRMA Insurance CTP Renewal Notice, describes the vehicle as a hard top. Both those descriptions are entirely appropriate. A photograph of the vehicle in question is exhibit 2. It shows the roof over the front part of the vehicle; that is, over the driver and front seat passenger as being a hard top but the rear compartment as a soft top. That is not immediately clear from exhibit 2 but is much clearer from exhibit T, which is a photograph of a similar vehicle clearly showing a hard top at the front and a soft top over the rear compartment of the vehicle. The vehicle had four cylinders. That is the inference that I drew from the evidence she gave at T272.41. The vehicle had a central rear vision mirror and also side view mirrors attached to the sides of the driver's door and of the front passenger’s door. That evidence can be found at T301.

32. Ms Fairall described her car as being "low powered" at T308. The plaintiff's boyfriend at the time of the accident, now her fiancé, and a passenger in the vehicle at the time of the accident, Mr Benjamin Shane Moore, described the car thus:

"Q. Are you able to describe the noise of that vehicle?

A. It'd be compared to a petrol engine nowadays. It was very quiet.

Q. What about the power of the vehicle?

A. Next to none, power.

HIS HONOUR

Q. When I was your age we used to call such vehicles gutless. Is that a correct description?

A. Yeah, you could use those words."

When discussing liability, I shall point out that much of Mr Moore's evidence was based on his opinion as to the power of the 1993 Daihatsu Feroza. The relevant evidence can be found at T367.38.

Topography

33. I turn now to describe the topography relevant to the accident site. Unsurprisingly the suburb of Cartwrights Hill is on top of a hill which probably has the geographic name of Cartwrights Hill. That puts the properties on Cartwrights Hill well above the flood plain of the Murrumbidgee River and hints at the poor quality of the soil at the plaintiff's residence.

34. The main north-south axis of the Wagga Wagga CBD comprises Baylis Street which runs north from the Sturt Highway and after crossing the lagoon is known as Fitzmaurice Street. The Wagga Wagga Court House stands on Fitzmaurice Street. At the northern end of Fitzmaurice Street is a “T” intersection. If one turns right at that T intersection, one crosses the Murrumbidgee River on the Wiradjuri Bridge.

35. The road from the bridge northward is Hampden Avenue. That winds through the North Wagga Wagga River Flats and then becomes the main street of the suburb of North Wagga Wagga. It then heads, basically, northwards to join Old Bomen Road which runs through Cartwrights Hill to the Bomen Road on which the plaintiff's property stands. Running parallel to Hampden Avenue on its eastern side is a street known as East Street. Like Hampden Avenue, that joins Old Bomen Road before Old Bomen Road reaches Bomen Road. Cooramin Street runs basically from east to west. Its eastern end is on East Street. It crosses Hampden Avenue and continues to run westward towards the Sturt Highway but there is a section of the straight east/west projection of Cooramin Street that has not been completed.

36. The only section of Cooramin Street that has been bitumenised is the section between Hampden Avenue and East Street. Equally, the only section of East Street that appears to have been bitumenised is that running northwards from its intersection with Cooramin Street to Old Bomen Road. The plaintiff’s injuries occurred when he was thrown by Buck on Cooramin Street between East Street and Hampden Avenue.

37. A sketch map or diagram was made of the relevant section of Cooramin Street by Mr Jefferys. The original of it is exhibit 7. A copy of it attached to Mr Jefferys’ report, in appendix 3, has been made smaller than exhibit 7. I have some difficulties with some of the distances stated or estimated by Mr Jefferys.

38. The evidence discloses two data topographically. The first datum is a tree on the northern side of Cooramin Street in front of 24 Cooramin Street, a property of which one resident was Mrs Robyn Cole. The tree in question can be seen on the extreme right of a photograph, exhibit E, and on the left of the photograph, which is exhibit X. It is common ground in these proceedings that the plaintiff was directly opposite that tree, on the other side of the bitumen, at the time that the car driven by the second defendant drove past the horse being ridden by the plaintiff. The other datum is what has been described as a pink letterbox. A photograph of that datum is exhibit Y. It is the letterbox for the property to the west of No. 24 and has on it the number 201G but would otherwise be known as 26 Cooramin Street, Cartwrights Hill. The distance from that tree to the pink letterbox was paced out at a view and is 18.5 metres. From the tree headed in the direction of the letterbox one finds at 5.5 metres from the tree a drainage hole in the kerbing, which would admit stormwater from No. 24 into the gutter and it is at that drainage hole that the plaintiff came to “rest” after he had been thrown by Buck. From that drainage hole to the pink letterbox is a further of 13 metres.

39. The kerbing and guttering occurs only on certain parts of the north side of Cooramin Street. That kerbing and guttering extends beyond the pink letterbox but not particularly far. Unfortunately I did not pace it out but that the kerbing and guttering extends beyond the pink letterbox is patent from exhibit Y and some of it can be made out on the extreme right hand side of exhibit H. I would estimate that that is no longer than a further 5 metres. Accordingly, on my reckoning there are 23.5 metres from the tree, that is, the accident site, to the western end of the kerbing and guttering. Mr Jefferys says that that is a distance of 20 metres.

40. Beyond the tree the kerbing and guttering extends to the western end of the property known as 22 Cooramin Street which has the name Booranga. The ending of the kerbing and guttering can be seen in a photograph, exhibit U. Its continuation across the front of number 22 can be seen in exhibit V. Its continuation across the front of number 24 can be seen in exhibits W and X and its continuation to the pink letterbox is shown in exhibit Y. The distance between the tree to the eastern end of the kerbing, I have paced out as 34 metres. However exhibit 7 suggests that the distance is in fact 60 metres and it is clearly inaccurate.

41. North of the ending of this section of kerbing and guttering is a drainage culvert. Two sets of two posts, painted white and bearing reflectors, one set on each side of the roadway, mark the position of the culvert. They are shown in exhibit A, a photograph taken from the east looking west a long way from the accident site, and are seen in exhibit 4, a photograph taken looking east along Cooramin Street from in front of No. 24. Between the two sets of posts marking the culvert, Mr Moore drew a line on exhibit 4, to the significance of which I shall, in due course, refer.

42. Exhibit 4 is also important as showing the continuation of Cooramin Street towards East Street, and again showing the widening of the bitumen surface of the road where there is kerbing and guttering. There appears to be another area of kerbing and guttering well east of the culvert, which is not relevant in the current proceedings. It is important to note that when one reaches the end of the eastern end of Cooramin Street, the bitumen surface makes a left-hand turn into East Street; and that if one makes a right-hand turn into East Street, one turns onto gravel road. There is a widening at the eastern end of Cooramin Street, which clearly indicates that most traffic turns left if going east along Cooramin Street or if going south along East Street, turns west into Cooramin Street. The widening also accommodates cars doing a U-turn at the eastern end of Cooramin Street.

33. The distance from the end of the kerbing and guttering shown on exhibit U to the culvert I paced out as being 77 metres. Accordingly from the tree given as a datum to the culvert is 111 metres. According to exhibit 7, the distance from the accident site to the intersection of Cooramin Street and Hampden Avenue is 330 metres. It is not clear that Mr Jefferys had the same accident site that the parties have agreed upon; that is, the same datum as the accident site; that is, the tree where the car and the horse passed each other. I have already pointed out that the distance that I have obtained is somewhat greater than the 20 metres stated by Mr Jefferys.

34. There is no dispute that there stands on Cooramin Street speed limiting signs to which I shall refer merely as "speed signs", between the end of the kerbing and guttering west of No. 24, and the intersection of Cooramin Street and Hampden Avenue. According to exhibit 7, Mr Jefferys' sketch plan, there are 110 metres between the speed signs and the commencement of the western end of the relevant kerbing and guttering, and if one adds the 20 metres estimated by Mr Jefferys between that commencement of the kerbing and guttering and the accident site a total distance of 130 metres between the accident site and the speed signs. Perhaps the appropriate distance to consider is the estimate of 110 metres between the speed signs and the commencement of the kerbing and guttering. Mr Jefferys broke that distance of 110m up to be a distance of 50 metres between the speed signs and a telegraph pole, and a further 60 metres between that telegraph pole and the commencement of the kerbing and guttering. The problem with that is that there are three telegraph poles between the tree given as the datum for the accident site and the speed signs.

35. The length of Cooramin Street in question is, as I earlier said, bitumenised or sealed. Other synonyms were used in the evidence, however, I shall seek to refer to the sealing as bitumen rather than tarmacadam or tar or asphalt. Mr Jefferys thought that the width of the bitumen, unless there be kerbing and guttering, was 7 metres. He thought that the width of the road where there was kerbing and guttering was extended to 10 metres, that is, that the kerbing and guttering caused there to be a width of 10 metres of bitumen. However, I paced that distance out myself in the presence of counsel and the parties and it was between 8 and 9 metres, an average 8.5 metres wide.

36. Mr Jefferys estimated that south of the bitumen, where there is a shoulder and then a grass verge, is 14 metres in width. However, road reservations in rural areas in this State laid out before metrification were generally 1 chain wide. A chain is a length of 22 yards or 66 feet. In metric terms a chain is 20.12 metres. I believe that is the width of the road reservation of Cooramin Street. When one looks at the photographic exhibits one can see, particularly in exhibits U, V and W, boundary fencing between the properties on the northern side of Cooramin Street and the kerbing and guttering that appears to be about 3 metres wide. If one then allows 8.5 metres for the total length of the bitumen where there is kerbing and guttering one comes to a total width of 11.5, which means that the southern side of the road reservation, that is, on the southern side of the bitumen, there is reserved a further 9 metres, roughly. There is a gravel shoulder and then a table drain and then grass. They can be seen in exhibit A and in exhibits E, F and H. At the time that this accident occurred the grass was long. All the photographs have been taken after the grass had been slashed. Exhibit G is a copy of exhibit F that was marked by the plaintiff to show to where the grass was growing at the time of this accident. That indicates a gravel shoulder of less than a metre, and then grass that on his estimate was 2 to 3 feet tall, to the boundary fence that is shown on exhibit G.

LUNCHEON ADJOURNMENT

The plaintiff’s description of the accident

47. I turn now to the plaintiff's description of the accident. He left his home on Bomen Road and walked Buck north-west along Bomen Road to its intersection with Old Bomen Road. He then walked Buck south-west down Old Bomen Road to its intersection with East Street. He then walked Buck south along East Street to its intersection with Cooramin Street and turned right into Cooramin Street. He continued walking Buck along Cooramin Street on the southern side of the bitumen within the road reservation, but keeping out of the long grass. He was riding towards Hampden Avenue. The photograph which is exhibit A is taken looking west along Cooramin street, and shows what the plaintiff would have seen prior to his reaching the culvert. One can see that further along Cooramin Street, but, after where the plaintiff's accident occurred, the road descends a slope. There is dead ground beyond the crest, which one can see in exhibit A.

48. Exhibit B is a photograph looking up the hill. The photographer is standing on the northern side of the bitumen looking up the hill. The speed signs are shown in exhibit B. They show that traffic travelling east, that is, towards East Street, along Cooramin Street, must reduce speed to 50 kph when it reaches the speed signs. For those travelling west along Cooramin Street, once the westward traveller reaches the speed signs, the speed limit increases to 80 kph. There is a conflict in the evidence as to how to describe the gradient of this hill. Some would have me believe it was a gentle slope; others call it steep. I would call it moderately steep. There are much steeper hills, but there are many which might be described as gentle slopes, but the hill shown in exhibit B is not a gentle slope. Once one reaches the crest that can be seen in exhibit B, there is a gentle uphill slope of but a few a degrees as the road continues eastward towards East Street.

49. At T66.10 the plaintiff estimated that he was riding Buck either one foot, that is, 12 inches, or 18 inches on the southern side of the bitumen, i.e. either 30 cm or 45 cm south of the bitumen.

50. The relevant incident occurred about 9.30am on the morning of Saturday 24 September 2011. Unfortunately ambulance records have not made their way into evidence. Such records are generally the best indication of when an incident occurred because they record the time that a call was made to 000. The best that the evidence discloses is that the incident occurred about 9.30am.

51. The plaintiff gave his short description of what occurred at T65.17:

"I witnessed a four wheel drive, a white four wheel drive turn into Cooramin Street, it was heading up towards the first lot of sign posts that would have had a speed limit on, which I wasn’t sure of at the time. I didn’t take a lot of notice of it, then I lost sight of it and all of a sudden it just turned up in my face, the white vehicle…"

I have not quoted the last clause of that answer because it was objected to and that clause was not pressed by Mr Roberts SC. I trust that Mr Roberts will forgive me if, hereafter, I do not assign to him his post-nominals. A little later at T65.33 the plaintiff said this:

"That vehicle just came straight into my face, just straight up into me."

The plaintiff then said that as far as he could ascertain, the vehicle was on its correct side of the carriageway. There is no median line marked on Cooramin Street. In fact, there are no lines marked on Cooramin Street at all. A little later, the plaintiff gave this evidence-in-chief:

"Q. Now, did you, I know you only had a short time to look at it, did you form some view as to the speed in which the plaintiff was travelling, at which the vehicle was travelling?

A. I thought the vehicle was going a bit quick.

Q. What do you mean by that?

A. I can't actually place a speed on her driving, but I know it came fast to me quick and it was fairly noisy, the engine of that car.."

A little later the plaintiff was asked to explain what he meant by the phrase that the car was suddenly in his face. The plaintiff merely reiterated that the car was in his face and then he referred to both the speed and the noise of the vehicle.

52. He perceived, at that time, that the horse froze. When he was asked to explain what he meant by that, he said that the horse:

"Just stopped and looked like that and he went very tight".

The plaintiff agreed that when he said the horse stopped, he meant that the horse propped, i.e. ceased moving, and then he said:

"The horse 'just looked in fright and very tight and then he exploded.'"

The plaintiff thought to try to turn Buck to the left; that is, towards the southern fence line of the road reservation and away from the bitumen but the horse:

"[…] just took off behind that car, bucking. I couldn’t do anything. He was out of my control."

When asked to explain what he meant by that answer, the plaintiff said that as the car went past him, the horse:

"[…] took off to the northern side of the road behind the car".

He said the horse bucked about four or five times and eventually the plaintiff came off the horse and the plaintiff landed:

"[…] straight into the kerb and guttering on the side of the road".

53. He landed at the place I described in [38] above. As the car went eastward from the tree, the horse went westward from the tree but diagonally across the road, bucking and throwing the plaintiff onto the kerb and gutter where the drainage hole is. The plaintiff was asked to explain what he meant by the horse's bucking. He said this:

"He jumped up in the air on all four legs, came down on his front legs, kicked up his back legs then jumped in the air and was bucking like a bucking horse in a rodeo."

Mr Moore described the manoeuvre as “pig-rooting". I understand by that, he was describing the manoeuvre of the horse coming down on its front legs and kicking out with its back legs. The plaintiff was clearly describing the same manoeuvre. Evidence given a little bit later indicated clearly that the horse bucked after the defendant’s motor vehicle had passed him by: T78.34.

54. The plaintiff said that when he came off the horse and landed in the gutter he was dazed and in pain. He felt the pain mainly in his right hip and on the left side of his ribcage. He was trying to get himself up out of the gutter when a man arrived on a motorcycle and dismounted from his motorcycle and held the plaintiff down. It is common ground that that gentleman was Mr Joshua Duck who lived relatively close by at 134 East Street, Cartwrights Hill. An ambulance was then called. That was called by a resident at number 24 Cooramin Street, Mrs Robyn Cole. The plaintiff’s evidence suggests that he lost consciousness when he was in the ambulance on the way to the Wagga Wagga Base Hospital. However, it could be that the plaintiff merely had some form of post traumatic amnesia from that time onwards. His next recollection was of having surgery performed on his right leg.

55. It became clear from cross-examination that the plaintiff lost sight of the defendant’s car when it was on the plaintiff’s side, or eastern side, of the speed signs. Prior to making that admission the plaintiff said that he only lost sight of the vehicle “for a split second”: T175.31. A little later he said that it was only out of his vision “momentarily”: T176.13. He then admitted that he could see the defendant’s vehicle by the time it reached the speed signs: T176.24 to T176.32 and T178.04. The plaintiff then made this admission commencing at T180.39:

“Q. Do you agree that if the white vehicle was next to the speed sign in that photograph, heading towards you, you would have been able to see it?

A. I reckon right opposite the speed sign, I could have see it, but just this side of it I lost it.

Q. So, what do you mean by this side of it you lost it?

A. Well, the sign, after the speed sign, I reckon at the time there I lost sight of that car.

Q. So to the east of the speed sign you lost it?

A. The side, their side.

Q. Your side of the speed sign?

A. Yes.

Q. You lost it?

A. Yes. Lost sight of it.

Q. Have you got any explanation as to why you lost sight of it?

A. Not really. I, maybe, I turned the horse off, I don’t know. I don’t know. I could have done, I could have blinked but I did lose sight of it and then it was on me.”

56. A photograph, exhibit F, was taken from the southern side of Cooramin Street directly opposite the tree that has been used as a datum from the position where the plaintiff says he was standing at the time of the passing of the car and the horse. One can clearly see the speed sign on the northern side of Cooramin Street in that photograph and one can make out the same speed sign on the southern side of Cooramin Street, although it is obscured somewhat by a tree behind it. One can also see some dead ground beyond the speed sign and then the re-emergence of the bitumen as Cooramin Street reaches a flat area which continues to the intersection of Cooramin Street and Hampden Avenue. Exhibit H is a similar photograph taken from directly opposite the hole in the kerb where the plaintiff came to rest after he was thrown by Buck. Exhibit J is a photograph taken from directly between the two speed signs looking east, that is, up Cooramin Street, up the slope. One can see on the right hand side of that photograph, that is, on the southern side of the bitumen, some human beings. The photograph was taken by my Associate standing where the driver of a vehicle would be who was driving east along Cooramin Street and was directly between the two speed signs and the people that one can see on the southern side of the photograph further on are the lawyers and the litigants who were standing, in essence, directly opposite the tree.

57. In short, from between the speed signs to the accident scene there is a clear line of vision for a person travelling east and from the accident site to the speed signs looking west there is also a clear line of sight. The dead ground for a person, in the position of the plaintiff, approaching the accident site is to the west of the speed signs and the defendants’ vehicle would have been visible to him when it reached the speed signs. That the plaintiff freely admitted. It is clear from the evidence which I have just quoted that the plaintiff must have become distracted by something and was not looking at the white vehicle after it had passed the speed sign heading towards him and that his attention was again drawn to the vehicle when it was almost upon him. The source of his distraction has not been identified.

58. Immediately after giving the evidence which I have just quoted, this evidence was given:

"Q. You didn't hear that vehicle until it was near where you were. Is that right?

A. That's when I was aware of it making the big noise.

Q. Well, what do you mean by that?

A. It was roaring.

Q. It was roaring, was it?

A. It was making the noise, yes.

Q. Prior to it roaring, did you hear it before that?

A. I would've. Probably did, yeah, probably did but I'm not saying it was roaring as loud as it was when he got near me."

Again, that evidence suggests that the plaintiff only became aware of the defendant's vehicle emitting a loud noise when it was almost upon him, that is, after he returned his attention to the vehicle after being distracted.

59. A little later the plaintiff was asked again to explain what he meant by the car being in his face. He said this:

"What I meant by that is, like I explained yesterday, I lost sight of it. It accelerated up the hill. All of a sudden there was noise and it was there. That's when I say it was in my face, and that's when the horse spooked or exploded or whatever you want to call it."

Mr Wilson then asked the plaintiff whether he was saying that the car was "in his face" because it was travelling at some excessive speed. The plaintiff said that that he did mean that. It was then put to the plaintiff that the defendant was driving her vehicle at no more than 40 kph and he disagreed. He also disagreed with the proposition that as the defendant's vehicle approached him it moved further over to its left-hand side; that is, to the northern boundary of Cooramin Street away from the direction of the plaintiff. However this evidence was then given:

"Q. Well, you wouldn't really know would you because you didn't see it until it was in your face?

A. That's right."

That is a candid admission, contrary to the plaintiff's own interests. At T183.45, this question was asked by Mr Wilson and answered by the plaintiff:

"Q. See, as part of your case sir, you're trying to suggest this vehicle was doing 60 or 70 kph, aren't you?

A. It was quick. It was smoking."

I do not take the last answer literally. I do not take the plaintiff to have meant that the car was emitting visible fumes, such as one sees when a motor vehicle burns oil. I have heard expressions such as that used by the plaintiff in football commentary, where the following example is often heard: "player X smoked player Y (a fullback) and scored a try." What is meant by the verb "to smoke" in that popular usage is that the person ran very quickly, so quickly that the opponent was able to tackle the player heading towards the try line. I understand the words used by Mr Hobbs, "It was smoking", to mean that the defendant's vehicle was travelling very quickly. On the following page of the transcript the following evidence was given:

"Q. If the car was doing 40 kmh there is no way the horse would have reacted?

A. It, the horse was frightened by what he had, he had experienced.

Q. By the speed of the vehicle?

A. By the speed of the vehicle and the noise."

Again, I do not take that as any evidence of the facts deposed to by the plaintiff but merely his view as an experienced horse rider, that what caused the horse to react in the way it did was either the speed of the defendant's vehicle or the noise emitted by the defendant's vehicle, or both.

60. A little later after that evidence I asked the plaintiff some questions. They were these:

"Q. As I understand it, one thing that often causes horses to shy or startle is the proverbial snake in the grass?

A. Yes, your Honour.

Q. Did you see anything else and were you aware as you were riding Buck before he threw you of anything else that may have spooked him or startled him?

A. No, your Honour.

Q. Were you keeping a lookout as you were riding him as to what was ahead of him as well as you?

A. I'm always on the alert, but my focus wasn't on a snake at that particular stage, again, your Honour, because that time of year we don't see snakes around here, your Honour.

Q. Yes, well, I wasn't going to suggest that there was a snake involved in this case, but…what I'm saying is there are a number of things which might cause a horse to startle, such as, for example, a car back-firing, even if it was only going along at ten miles an hour, and it back-fired and startled the horse?

A. Yes, your Honour.

Q. But I'm saying apart from the defendant's vehicle, were you aware of anything else that could have startled Buck?

A. No, your Honour."

61. Mr Wilson then resumed his questioning. The plaintiff was asked when he first saw the motorcycle that was driven by Mr Duck. He answered that he only saw the motor bike as he was "looking at its wheel when I was on the ground". I then asked Mr Hobbs whether he heard a sound of some vehicle prior to the horse’s bucking, that was not the sound of the defendants’ vehicle. The plaintiff said that he had not heard the sound of any other vehicle. That question was asked because a competing theory for what caused the horse to react in the way it did was that it was startled, spooked, or frightened by the noise of Mr Duck's motorcycle.

62. Later when Mr Wilson cross-examined the plaintiff about the number of bucks performed by the horse and as to the time in which those bucks took, the plaintiff said that there were "Four good bucks" and that that would take "about four seconds". It was suggested to the plaintiff that that might have only take two seconds but, he didn’t agree with that proposition. The plaintiff then volunteered that he thought that there were four bucks because he was trying to get onto the grass in order to get a better landing. I infer from that that the plaintiff was trying to steer Buck onto the grass verge on the northern side of Cooramin Street in order that when he came off the horse he would land on grass rather than on the bitumen or the concrete kerbing and guttering. Unfortunately that did not occur. In answer to the following question, Mr Hobbs told me that the horse "tightened up" or "froze" halfway through the passing of the defendant's vehicle and that the "explosion", the commencement of the bucking, occurred as soon as the defendant's vehicle had passed. Mr Wilson then cross-examined the plaintiff as to what he meant by saying that the vehicle became louder and roared as it approached him. The plaintiff said this:

"A. Well as it come up the hill it was making a fair noise, like it was roaring along, yes it did, it come noisier, and when it passed us it was noisy.

Q. Well sir..

A. As it was roaring into us."

The plaintiff then said that he heard this noise when the car was 15 to 20 metres away which would indicate that the plaintiff was aware of the defendant's vehicle when it was 20 metres away from him; that is, somewhere between the commencement of the kerbing and guttering and the pink letterbox.

63. At T197, the plaintiff was further cross-examined about the noise made by the defendant's vehicle. It can be summarised by this, which is one of the answers that he gave:

"The noise I heard was loud enough and the excess speed startled this horse. That's all I can say to you."

Again the plaintiff was advancing an opinion that the noise of the defendant's vehicle was sufficient to cause Buck to startle or to be spooked and likewise, the speed of the vehicle was such to cause it to either startle or be spooked.

64. The plaintiff maintained he was riding Buck close to the southern edge of the bitumen in order to stay out of the long grass. It was suggested to the plaintiff that it would have been quite easy for him to walk the horse at the extreme southern side of the road reservation along the fence line, where he would have been, as earlier discussed, some 9.5 metres away from the edge of the bitumen. The plaintiff said this:

"I didn't walk the horse close to the fence line because I had experienced broken bottles and wire in long grass, and that's not a good thing".

The plaintiff went on to explain that he had been riding a horse which was crippled by a broken bottle, the horse being cut severely by a broken bottle hidden in grass. The plaintiff's evidence in that regard is corroborated by Mr Doughty. Mr Doughty gave this evidence:

"Q. Sir, do you agree that it would have been safer for the plaintiff to have ridden Buck where the asterisk is [in long grass] rather than where the circle is in MFI 3 [a copy of exhibit F the circle indicating where plaintiff says he was riding Buck when the car drove past him]?

A. Am I allowed to take into account what I heard Mr Hobbs say this morning in this situation?...Because I, Mr Hobbs described the scenario as that grass being you know, about three foot high and you couldn’t see what was on the ground. If you showed me that photo now where there is nice clear vision of the ground, I would agree with you in that it’s clean ground, there's no rubbish there, etcetera, etcetera. However, if that grass was three foot high, which I heard in court this morning that the grass was about three foot high and you didn’t have a clear vision of the ground, from a traffic perspective it would be safer to walk where the asterisk is, from a horse's welfare perspective, it would be safer to walk where the gravel is. So, if it was me in that situation I would have been walking where Mr Hobbs was walking.

Q. But you agree, don’t you, it’s always safer to be away from the road rather than closer to the road?

A. It’s safer from a rider’s perspective, it’s not necessarily safer from the horse’s perspective.

HIS HONOUR

Q. Because in the long grass could be a rabbit hole and his foot could go down the rabbit hole and break a leg?

A. And standing on broken bottles is a really common occurrence around here.”

Earlier, Mr Doughty’s evidence made it clear that he lived in the local area, had a farm somewhere nearby, drove past the plaintiff’s home regularly on his way to and from the University campus and was, in essence, not only an expert but an expert based in the Wagga Wagga area. As was stated by Mr Doughty in chief he knew the local area and that was confirmed in cross examination at T229.40. Returning to the plaintiff’s evidence about broken bottles in the long grass he pointed out that the injury to the horse, for which he’d given evidence, happened to the plaintiff when he was walking a horse down Old Bomen Road and that was what made him aware of errant motorists and pedestrians throwing bottles onto the side of the roads.

65. Between pages T196 and T205 the defendants’ case was put to the plaintiff and, in essence, denied by him.

66. I return to the question put concerning MFI 3. As I have mentioned, MFI 3 is a copy of exhibit F. Marked in the extreme left hand corner in black ink is an asterisk which was put to the plaintiff was the place where he was when the car passed him. That had been suggested in the evidence to be some 4 metres from the side of the bitumen, into the long grass, but the asterisk may be merely diagrammatic because it appears to me that 4 metres from the side of the bitumen would probably take one off the photograph, to the left. The blue circle marked on the carriageway is the position where the second defendant alleges Mr Duck’s motorcycle was after Buck started to misbehave. The important thing is that the circle which has been marked in red ink by Mr Hobbs as his position on the side of the carriageway, which is clearly just away from the edge of the grass, where the grass would have been if it were still 3 foot high, is marked on exhibit G. There is a clear dispute. The plaintiff says he was less than 1 metre off the carriageway, perhaps only 1 foot or 18 inches away from the carriageway and the defendant says that he was some 4 metres away from the carriageway. That issue can be easily determined in the plaintiff’s favour from evidence I have yet to recite. However, that evidence needs to be considered primarily when considering the evidence on liability given by the second defendant. I now turn to that evidence.

The second defendants’ description of the accident

67. The second defendant said that on the morning in question she was driving to her boyfriend’s mother’s house, the mother of Mr Ben Moore, which he said was on the corner of Cooramin Street and East Street: T273. However, according to Mr Moore, who was really in a better position to know where his mother lived than the defendant, his mother lived one house from the corner: T37710. That, of course, is a very minor point and perhaps might be thought to be completely irrelevant but it does give some indication of how reliable the second defendant’s evidence might be. There is no doubt that on the morning in question Mr Moore, her then boyfriend, now fiancé, was a front seat passenger in the vehicle. They had been boyfriend and girlfriend since 2010, probably for about a year.

68. It is clear that the second defendant was driving out of the main area of Wagga Wagga. She travelled north along Hampden Avenue. She made a right hand turn into Cooramin Street. She estimated that to make that turn she reduced her speed to 20 kph. She said that she knew the speed limit in the first section of Cooramin Street was 80 kph and that she reached a maximum of 60 kph as she was heading up the hill towards the speed signs. She said that she did not reach 80 kph, the speed limit, because her car was incapable of reaching such a speed, presumably on a relatively steep uphill slope. The second defendant said that that estimate of the speed she reached was her best estimate of what speed she had reached. She said that “slightly before” reaching the speed signs she reduced her speed by both braking and by dropping back a gear. She did those things in order to reduce her speed from 60 kph to 50 kph.

69. When I heard that evidence I was somewhat surprised. To reduce one's speed from 60 kph to 50kph whilst going up this incline, in my view, it would have only been necessary to ease off the accelerator pedal and gravity would have caused the speed of the vehicle to decline. To both brake and drop down a gear appeared to be an excessive reaction to reduce speed by 10 kph, but that was the second defendant's sworn evidence. She then said that just after she passed the speed signs she saw Mr Hobbs riding the horse. She said that would have been at a "minimal distance" past the speed signs. In other words, she had a view of Mr Hobbs for about 133 metres, perhaps further, as the distance would have been greater before Mr Hobbs reached the passing point, at the tree. She thought the horse was "calm and relaxed at that point" but that is very difficult to accept when one looks at exhibit J, the photograph taken from between the speed signs looking east and the human beings that you can see are very small indeed, and it would be quite impossible to make out anyone's demeanour, let alone the demeanour of a horse even further east from where those people are standing.

70. The second defendant gave this evidence-in-chief:

"Q. What did you do, if anything, insofar as the driving your vehicle was concerned, once you'd seen that horse?

A. I'd slowed down my speed again to an average close to 40 kilometres an hour and I moved as far left to the road as I could."

She went on to say that when she reached the area where the road widened, that is the bitumen widened where there was kerbing and guttering on her left, she moved further to the left so that she was 1 metre away from the gutter. If that were the case, the left-hand side of her vehicle would have been 7 and a half metres from the edge of the bitumen and probably about 8 metres from the plaintiff. However, her car was estimated by Mr Moore to be 1.5 metres wide so that the distance between the right-hand side of her vehicle and the plaintiff would have been about 6.5 metres. She said at that stage the horse still appeared to be calm as far as she was aware.

71. It is clear from all of the evidence that at some stage Mr Moore asked the second defendant why she was slowing down and she said that that was because of the horse. The second defendant also gave this evidence:

"Q. Did you keep looking at the horse or did you turn your gaze away from the horse?

A. No, I was aware of the horse as I was driving by.

Q. That doesn't really answer my question. Did you keep looking at the horse or did you glance at it, see, slow down, then turn back to looking straight ahead, or did you keep looking at the horse?

A. I wouldn't say I was facing the horse the whole time I was driving by, but I was aware of my surroundings so I had to watch the road and the horse as I passed it."

The second defendant went on to give this evidence:

"Q. There's no contest in this case that your car passed Mr Hobbs' horse in line with where that tree is. You were at the view yesterday?

A. Yes.

Q. You agree with that?

A. Yes.

Q. The view was [on Monday] I am told now.

A. Yeah.

Q. At that point what observation, if any, did you make of the horse?

A. I observed the horse to be calm.

Q. Once you got past that point, what observation, if any, did you make of the horse then?

A. Once I had passed the horse and he was in vision of my rear view mirror, I have seen the horse begin to buck.

Q. Then what did it do?

A. It bucked three to four times across the road where Mr Hobbs had fallen off, to where Mr Hobbs had fallen off.

Q. Just return to the point where your vehicle was level with the tree.

A. Yes.

Q. Can you tell the Court what, if anything, you heard at that stage?

A. I heard the motorbike that was coming up Cooramin Street coming towards us up Cooramin Street. Sorry, coming behind us up Cooramin Street."

She said that the motorcycle was making a loud deep noise. She compared that to the noise of her own vehicle which she described as a "quiet, small hum". She was then asked when she had first noticed the sound of the motorcycle. She said that she had heard it as it was coming up the incline on Cooramin Street, by which I infer she meant the hill towards the top of which the speed signs stand and beyond which is the crest east of the speed signs. The second defendant was then asked how far the motorcycle was behind her when she first saw it. She gave this answer:

"An average of 20 to 40 metres."

An average is not a range. If anyone should know that, it is a mathematics teacher. This was drawn to her attention. When she was asked then to give an estimate as to the distance that the motorcycle was behind her when she first saw it. She said that it was 40 metres behind her and shortening the distance between the cycle and her car as they both progressed east along Cooramin Street. The plaintiff then marked on a copy of exhibit F an asterisk for the place she said the plaintiff was at the time she passed him, and a circle on the carriageway to indicate where the motorcycle was when she passed the tree and the plaintiff on Buck. The markings are completely consistent with what had been marked on MFI 3 before it was shown to the plaintiff.

72. The document MFI 3 was then tendered, and it became exhibit 3.1. The document most recently marked by the defendant was also tendered, and it became exhibit 3.2. Exhibit 3.2 shows the motorcycle as being a little bit closer to the tree than exhibit 3.1, formerly MFI 3, suggests; in other words, the plaintiff marked on exhibit 3.2 a point closer to the tree where the motorcycle was than had been shown to the plaintiff, but again the distance is not particularly great.

73. The second defendant went on to say that she saw the horse bucking for two to three seconds, and then she saw Mr Hobbs fall off the horse, and she then made a U-turn. She said she made a U-turn where there was still kerbing and guttering, before the bitumen again narrowed, where there was no kerbing or guttering. We know that the kerbing and guttering ends 34 metres after the tree, so that in the time that elapsed during the passing of the horse by the car, the commencement of bucking and the throwing of the plaintiff and the second defendant's making a U-turn her vehicle travelled a distance of 34 metres.

74. After making the U-turn, the defendant returned to where Mr Hobbs was laying on the ground. As directed by Mr Duck, Mr Moore tried to ring an ambulance. The second defendant re-entered her car and drove off in order to find the horse. She said she drove towards Hampden Avenue but she could not see the horse. She then made another U-turn and drove east up Cooramin Street, and turned left into East Street, but thereafter she could not remember where she travelled, but she was not able to find the plaintiff's horse. She then returned to where the plaintiff was with Mr Duck and Mr Moore and waited with them until the ambulance arrived. When she returned Mrs Cole was also at the scene. When asked what she did observe about the horse after the plaintiff was thrown from it, she said that she saw the horse run, which means move at some speed other than walking, and perhaps it means “canter” or “gallop”.

ADJOURNED TO TUESDAY 24 MAY 2016

75. Before commencing my reasons yesterday, I had intended to provide to those representing the parties, a list of further transcript corrections but I omitted to give it to my Associate to type. That was done yesterday afternoon and I now provide to the representative of the parties a document headed "Transcript corrections" which make corrections to the transcript which are not otherwise recorded in the transcript made to-date. I should say this about transcript corrections: only salient ones have been noted previously in the transcripts and on MFI 10 (see Hobbs v Fairall MFI 10 230516 (47.7 KB, docx) ). There are numerous errors of grammar and punctuation and syntax, errors which would require a long time to correct and it is otiose to do so. When I was quoting the transcript yesterday, I made some corrections which would be obvious to anybody who reads the transcript and then reads those parts of the transcript which I quoted in my earlier reasons for judgment. A simple illustration of the transcript complexity is, for example, the use of the preterite and past participle of the verb "to pass" and the use of the word "past", whether used adverbially or as a preposition. The transcript frequently confuses the two.

Post-injury dealings between the parties

76. At the conclusion of yesterday's proceedings, I completed outlining the evidence in chief given by the second defendant on the question of liability. Before going on to consider her cross examination I should advert to another area of evidence. That concerns post injury dealings between the plaintiff and second defendant. For some time after the accident the plaintiff did not consider pursuing any claim. However, in September 2012, the plaintiff consulted Mr Tim Abbott, a solicitor, in the firm of Walsh & Blair of Wagga Wagga. The plaintiff was provided with advice as to the need to obtain details of the owner and driver and the registration number of the vehicle that Mr Hobbs considered was the cause of his being thrown from Buck. In order to obtain that information the plaintiff contacted Mr Joshua Duck who, as I indicated yesterday, lived in East Street, Cartwrights Hill. Mr Duck was able to tell the plaintiff that the passenger in the second defendant’s vehicle at the time of the accident was Mr Ben Moore and that he was the boyfriend of the driver. The plaintiff inquired of Mr Moore about contacting his girlfriend. That led to the plaintiff making contact with the second defendant.

77. This was some time in November 2012. The plaintiff gave this evidence in chief:

“Q. Did you ask her whether she’d been the driver of the vehicle that had been involved in the accident?

A. Yes, yes.

Q. What did she say?

A. She said, ‘Yes’.

Q. Did you ask her for the rego number?

A. I did, at the time, but she didn’t remember it.

Q. Yes, did she say she’d get it for you?

A. She said she’d get it for me the next night.

Q. Did you contact her the next night?

A. I went to see her.

Q. Would she give you the registration number?

A. No.

Q. What did she say?

A. She said, ‘If I give you those details, I’m going to get into trouble and my third party will go up.’ She wouldn’t give them to me.”

In cross-examination the plaintiff admitted that MsFairall did not use the words “I’m going to get into trouble” but maintained that the second defendant did say that she was not prepared to provide the registration details of the vehicle she was driving because that might cause her third party premium to increase.

78. On 29 November 2012 Messrs Walsh & Blair wrote to the second defendant a letter, the substance of which is this:

“We act on behalf of Anthony Hobbs in relation to a motor vehicle accident which occurred on 24 September 2011. At the time our client was riding a horse along Cooramin Street, Cartwrights Hill. We understand that you were the driver and/or owner of a white four wheel drive which we believe was involved in the accident. We would appreciate if you would let us have the registration of the motor vehicle you were driving at the time.”

That communication would appear, objectively, to have been ignored. Messrs Walsh & Blair sent another letter to the second defendant on 31 July 2013. That repeated the instructions of Messrs Walsh & Blair to act for the plaintiff in relation to the accident that occurred on 24 September 2011. The letter went on to enclose by way of service a “Motor Accident Personal Injury Claim Form” together with the appropriate Medical Certificate. The second defendant was asked to forward the claim form to her compulsory third party insurer “as soon as possible”. That communication was also, objectively, ignored. Those two letters form exhibit S.

79. On 26 November 2013 Messrs Walsh & Blair sent another letter to the second defendant. The substance of that letter says this:

“We refer to service on you of our client’s Motor Accident’s Authority Personal Injury Claim by Graeme Hackett of 6 August 2013.

As previously advised in our letter dated 31 July 2013, copy enclosed, would you kindly forward the claim form to your third party insurer without delay.

If we do not hear from you or your insurer within seven days we will proceed personally against you.”

That received in reply, what is described in the transcript at T69.19 as a letter, but it might be an email. It was sent not by the second defendant but by the first defendant. It bears date 5 December 2013. It enclosed a copy of the renewal of the CTP insurance for the 1993 Daihatsu Feroza, registered number BE 71 NA. The reply succinctly states the insurer’s name and the policy number as well as providing a copy of the renewal notice.

I believe it would be reasonable for this man to consult with Dr Wong regarding the incisional hernia, as this may well have to be surgically repaired ($6000)."

Dr Wong is at the Gosford Hospital. It would be impracticable for the plaintiff to consult with Dr Wong but it would be practicable for him to consult a general surgeon in Wagga Wagga. There may be a need for repair of the incisional hernia but the plaintiff says that he does not wish to have any further surgery but if there were herniation of the contents of his abdomen through that hernia that could lead to strangulation and the need for further urgent surgery which could not be avoided.

228. Dr Smith, as I already indicated, examined the plaintiff on 5 December 2014. He thought the plaintiff walked with a "dip" to the right. He found Trendelensburg's sign to be negative, although Dr Bentivoglio had earlier found it to be slightly positive. Dr Smith appeared to have been more concerned about some knee problems which the plaintiff had. He found a fixed flexion at 10 degrees at the right knee and five degrees at the left knee and that both knees had a restriction in the range of flexion, and that there was crepitus throughout the range of movement of each knee. To me that indicates that the plaintiff has osteoarthritic knees which was hardly surprising in a 68 year old man. However, the plaintiff makes no complaint about his knees. Despite the prognosis of Dr Bentivoglio that the plaintiff was not at particular risk of developing degenerative osteoarthrosis of the hip, Dr Smith thought the plaintiff did have some arthritis in his right hip. I do not need to enquire into whether each gentleman means, the one by arthrosis, the other by arthritis, the same thing.

229. Dr Truskett examined the plaintiff on 14 August 2015. His certificate bears date 19 August 2015. When Dr Truskett examined the plaintiff's right hip, he found marked reduction in mobility on the right compared to the left. On examining the plaintiff's left shoulder he found a significant reduction in left shoulder movement and a positive impingement of the left shoulder in passive abduction. When he examined the abdomen he found a well-healed midline scar in the upper abdomen to the level of the umbilicus, measuring 21 cm in length. He found at its mid-point a 10 by 10 cm defect constituting an incisional hernia that was protuberant on coughing and also when standing. As far as the fractured left ribs were concerned, Dr Truskett said that they were settling and were un-assessable as they were uncomplicated fractures and attracted no WPI. He found a 4% WPI due to the reduction of hip movement which he described as being a moderate impairment. He found a 7% WPI because of the problem in the left shoulder which left an 11% impairment of the left upper limb. As I earlier mentioned, he found 10% WPI because of the problem with the plaintiff's abdomen. When one adds, under this system, 10% and 7% and 4%, one comes up with 19%.

230. The evidence painted by the post-injury medical evidence is of a man who had life threatening injuries which require extensive treatment at Wagga Wagga Base Hospital immediately thereafter, a complication in the middle of the following year, in June 2012, requiring a 14 day hospital admission for injuries which were again potentially life threatening; a man who has had to give up work which he loved because there was a real risk to him of further injury, in particular, of further problems in his left hip, and any crushing of the plaintiff between beasts or between a beast and a fence or wall could cause serious problems to the plaintiff's abdomen, could cause the weakness of the hernia to permit strangulation of the abdominal contents, requiring further urgent surgery. The attack on the plaintiff's case concerning quantum, is, in my view, the throwing of red herrings across the Court's path. I shall address that issue in the morning and I trust that I shall have the plaintiff's damages assessed by high noon.

ADJOURNED TO THURSDAY 26 MAY 2016

231. The defendants tendered a large number of documents. Included amongst them were many pre-accident records from the Wagga Wagga Base Hospital and other medical records preceding the plaintiff’s injury as well as other documentary evidence.

232. The first in time, exhibit 10, is an accident/incident report submitted by the plaintiff to the Charles Sturt University. That refers to an incident on 18 January 2008. That refers to injuries to the plaintiff’s knees and the extent of the injury is this:

“While having to kneel on desktops to replace flyscreens I have caused injury to both my knees.”

There is no suggestion that that event caused any loss of time. If one kneels on a hard surface one often experiences discomfort. That is merely what appears to have happened. As I pointed out yesterday, the evidence does suggest the plaintiff has some osteoarthritis in his knees. I can accept that kneeling on a hard surface whilst one has arthritic knees could cause discomfort and pain. However no aspect of the plaintiff’s current incapacity for work or any symptom which the plaintiff described to me relates to his knees. That is one of the red herrings.

233. The next red herring concerns the diagnosis of “cancer”. On 12 November 2008 the plaintiff had excised from his chest a basal cell carcinoma. It was thought at the time that the carcinoma had not been wholly excised. This was nothing more than a skin cancer. However, the plaintiff’s general practitioner, Dr Pillai, then referred the plaintiff to Dr Michael Payne, a surgeon, because the pathology report suggested that the general practitioner who had excised the skin cancer had not wholly excised it. Dr Payne saw the plaintiff on 1 December 2008 and recommended an admission to the Wagga Wagga Base Hospital for “re-excision”. The plaintiff was admitted to the Wagga Wagga Base Hospital on 7 January 2009. The area where the basal cell carcinoma had been was re-excised. What was excised was sent for histopathology. The histological report, which is part of exhibit 11 and also exhibit 12, says this:

“There is no indication of residual basal cell carcinoma lesion in this specimen.”

In other words, the first histopathological report was incorrect, the GP had wholly excised the basal cell carcinoma from the plaintiff’s chest, and further surgery at Wagga Base Hospital was unnecessary. Confirmation of that is contained in exhibit 11.

234. Exhibit 9 is another accident/incident report submitted by the plaintiff to the Charles Sturt University. That reports an incident on 17 September 2009. The plaintiff said that on that day, while lifting a centrifuge at the equine centre in order that it could be moved elsewhere he sustained an injury to his anterior abdominal wall. The plaintiff thought he had sustained a hernia. This was the subject of cross-examination to the effect that the incisional hernia, which I identified from the medical reports yesterday, was in fact a pre-existing condition. Although that was the subject of cross-examination, and the subject of many of the documents tendered by the defendants, no expert medical evidence was adduced by the defendants to corroborate the postulation of Mr Wilson that the incisional hernia identified by me yesterday was a pre-existing condition. Mr Wilson left it to me to decide.

235. The incident of 17 September 2009 was the subject of the plaintiff’s complaint to his general practitioner on that day. The general practitioner’s notes indicate that the plaintiff was complaining of abdominal pain. The complaint recorded was of numbness in the right hypochondrium. However the plaintiff had no pain, he had no bowel problem, and he had no problem with his spine. The general practitioner thought the plaintiff should undergo a blood test. The plaintiff’s next visit to his general practitioner was on 12 October 2009, when he is still complaining of some numbness in his right hypochondrium. However, the reason for the plaintiff’s seeing his general practitioner was, according to the general practitioner, hypertension. With great respect to the general practitioner, it seems more likely to me that the plaintiff complained of continuing numbness in his right hypochondrium and the doctor diagnosed hypertension. The general practitioner on 12 October recommended an X-ray. That X-ray was performed on 22 October 2009. It is part of exhibit 11. The only real significance of that X-ray is the clinical history which it contains of “heaviness in the right hypochrondrium for a long time, not settling.” Heaviness and numbness are different things but they may represent an attempt by the plaintiff to describe some abnormal feeling. As well as the X-ray of the chest, an ultrasound of the abdomen was performed. Again, that investigation is part of exhibit 11. It is reported as showing no significant abnormality in the abdomen.

236. The plaintiff attended again on his general practitioner on 3 November 2009. The plaintiff was "in for results", which I assume indicates the plaintiff was going back to this general practitioner to find out the results of the investigations performed since his visit on 22 October 2009. On 3 February 2010 the plaintiff saw his general practitioner who noted a lump in the linea alba which the general practitioner Dr Pathak misspelled as the lina alba. He referred the plaintiff for an ultrasound. That was carried out on 16 February 2010. The report of that scan forms part of exhibit 11. Under the heading "Clinical Notes" the report says this, "? epigastric hernia". That indicates that it was thought that there might be a hernia in the epigastric region. The report says this:

"There is an anterior abdominal wall defected [sic, scil. defect] measuring 20 x 15 millimetres with herniation of omental fat noted between the fascial planes but remaining deep in the linear [sic] alba and rectus abdominus [sic, scil. abdominis] muscles. It is completely reducible."

On 19 February 2010, the plaintiff returned to see his general practitioner to obtain the result of that investigation. He was then referred back to Dr Payne.

237. Dr Payne saw the plaintiff on 15 April 2010. That is proven by Dr Payne's clinical notes which are contained in the records of the Wagga Wagga Base Hospital and are part of exhibit 11. The doctor's report following upon that consultation bears the date 16 April 2010 and is contained in exhibit 11 and is also exhibit Q. The substance of Dr Payne's report of 16 April 2010 following upon his examination of the plaintiff on the preceding day is this:

"Anthony noticed a bulge in his epigastric region recently whilst at work. It does not give him any pain or symptoms. Clinically it has the appearance of a divarication of the rectus muscles. Anthony has had an ultrasound performed which has been reported as a 2cm defect below the level of the linear [sic] alba and the rectus abdominis muscles. This is not consistent with a hernia which by definition should allow intra-abdominal contents to pass between the rectus muscles and through the linear [sic] alba.

I have assured Anthony he has a condition which does not require surgery. He can continue to work and attend to his normal activities. I have made no further plans to see him again, but would be happy to do if needed."

238. The linea alba is a white line of connective tissue in the middle of the abdomen from the base of the sternum to the pubis. It is the centre line of the abdomen and is well defined in a healthy human being carrying no abdominal fat. It can be easily discerned in a male who has the proverbial "six pack" abdomen. There are a number of muscles that are called rectus abdominis. They are the external abdominal muscles, one on each side of the linea alba, stretching from the pubic bone to the cartilages of the fifth, sixth and seventh ribs. Each of the recti abdominis runs parallel to the linea alba. A divarication of the recti abdominis below the linea alba is merely a gap or weakness between the two muscles immediately below the centreline of the abdomen. At this point, it is important to bear in mind the various regions of the abdomen. If one places over the abdomen a noughts and crosses grid, with the middle region of that nine region grid having at its centre the belly button, or umbilicus, one has divided the abdomen into nine regions. These are known by the following names, and it does not matter whether one goes from the left to right of the observer or left to right of the person being observed, that is, the patient. The upper tier of regions is the hypochondrium, the epigastrium and the hypochondrium. The middle tier of regions is the lumbar, the umbilical and the lumbar. The bottom tier of regions is the inguinal, the suprapubic, and the inguinal. It should be clear from what I have already said that the plaintiff's initial complaint on 17 September 2009 was in the right hypochondrium; that is, on the right side of the abdomen, its upper tier.

239. What was eventually diagnosed was a divarication of the recti abdominis below the linea alba, that is, in the centre line of the abdomen, that is, in the middle of the abdomen, its upper tier. These are two different areas of the abdomen. In any event, what was identified eventually by Dr Payne was not a hernia, but merely a divarication of the recti abdominis in the epigastrium. From what I have set out yesterday, particularly the findings of Dr Truskett, the plaintiff has now not a problem with the divarication of the recti abdominis 2 cm below the linea alba in the epigastrium, but an incisional hernia above the umbilicus and, on the observation of Dr Endrey-Walder, to its left, i.e., it is not under the linea alba but to the left of the centre line of the abdomen, and just above the umbilicus indicating that it is in the umbilical region of the abdomen. There is no dispute that some long time in the past, that is, probably a decade before the accident now in question, the plaintiff had an umbilical hernia which was repaired. Umbilical herniae are relatively common and are caused by the extrusion of the contents of the abdomen through the defect left by the cutting of the umbilical cord post partem. There is no suggestion that the current hernia is the old umbilical hernia, and it is patently clear that the current incisional hernia is not the divarication of the recti abdominis identified by Dr Payne in his report of 16 April 2010. As I said, this is a complete red herring. Counsel who decide to put matters such as this before the Court should either obtain expert medical advice to the effect which they submit, or know more about the subject and in particular, anatomy.

240. The next red herring is a submission that the plaintiff's health and therefore his expectation of life is impaired, because of a cardiac condition which has led to a number of angiograms. On 14 July 2010, a few months after Dr Payne provided the eventual diagnosis for the plaintiff's perceived abdominal problem, the plaintiff returned to see Dr Pathak at the Estella Medical and Dental Centre for a check-up. According to Dr Pathak's notes, the plaintiff was not complaining of any problem. He told the doctor that he was exercising and taking care of his diet. Amongst the tests performed by Dr Pathak was an ECG. According to Dr Pathak's notes, this showed "possible small ac [? acute] anterior myocardial infarction and first degree A V block". Dr Pathak was concerned about what he perceived the ECG showed and sent the plaintiff straight away to the Wagga Wagga Base Hospital.

241. The records of the Wagga Wagga Base Hospital for 14 July 2010 are part of exhibit 12. The record, a discharge note, says this:

"Anthony was sent in for review by his GP today after attending the surgery for a routine check-up. Anthony has been asymptomatic and completely well. The ECG done at Estella Medical Centre read inferior AMI [anterior myocardial infarction] and Anthony was referred to the emergency department for review.

Anthony has been completely well and was well on examination. His ECG shows first degree A-V block and high uptake on anterior leads. Troponin was negative.

We have discussed with Anthony that the ECG changes are likely to be longstanding. As he is an ex-smoker and has hypertension Anthony would like to have an exercise stress test done as an outpatient."

242. The plaintiff was sent to see Dr Gallagher, a cardiologist, at Riverina Cardiology. Dr Gallagher reviewed the plaintiff on 21 July 2010. Dr Gallagher's report of 27 July 2010 addressed to Dr Pathak is part of exhibit 12. That report contains this matter:

"Mr Hobbs' ECG findings are relatively non-specific and may reflect his hypertension. I will organise for him to undergo a stress test echo to exclude any resting regional wall motion abnormality or myocardial ischaemia. It will also allow us to assess his heart rate response to exercise and exclude any exercised induced bradyarrhythmias. If the stress test is normal I would be happy to observe him for the time being."

The stress test was then performed on that day. A second report of Dr Gallagher bearing date of 27 July 2010 says this:

"I have reviewed Anthony following his stress test today (21.07.10). This was abandoned at a fairly low workload in the absence of symptoms. Anthony's resting echo did raise the possibility of a previous infero-basal infarct. Exercise was associated with some early ST elevation in the precordial leads in the absence of chest pain and blood pressure fell. There is no ST segment depression post exercise. His post stress echocardiogram again revealed infero basal hypokinesis but no evidence of ischaemia in other territories. Whilst the stress echo was non-diagnostic, I felt there was enough based on haemodynamic and ECG changes to warrant further investigation with angiography."

What that tells me is the plaintiff had no symptoms but the doctor decided that it would be wise to investigate perceived test abnormalities.

243. For that reason, the plaintiff was admitted to the Wagga Wagga Base Hospital for a day, 4 August 2010. Again, the records of that admission are part of exhibit 12. The result of the investigation performed is recorded as showing that the plaintiff had ectatic coronary arteries. There were low OM branch significant stenoses. Ectasia is dilatation of any tubular vessel. The plaintiff's coronary arteries were ectatic merely means that they could be dilated or widened. The only real abnormality shown was of the stenoses in the low OM branches. Following upon that examination, Dr Peter Ruchin, also a member of the Riverina Cardiology Practice, placed the plaintiff on a medication known as Clopidogrel.

244. However, it was decided that the stenoses which I have just mentioned should be surgically treated. For that reason, the plaintiff was admitted again to the Wagga Wagga Base Hospital on 27 August 2010, but was discharged on the following day. Another angiogram was performed. In essence, surgery was practised on the circumflex artery of the heart. The cardiologist performing the surgery, Dr Ruchin, attempted to remove the narrowing of the OM branches of the artery. He was unable to insert a stent but he believed that there had been optimum balloon angioplasty performed. In other words, he believed that passing the "balloon" through the branches of the artery effectively resulted in the best possible dilation. In a report of 27 August 2010, Dr Ruchin confirmed that he had achieved an excellent result with the angioplasty of the branches of the coronary artery involved. The plaintiff has had no further cardiac investigation.

245. With the utmost respect to the medical practitioners involved, this whole episode of coronary investigation appears to have been due to a misreading by the general practitioner of an ECG and as the plaintiff had no symptoms of a cardiac nature whatever, the surgery ultimately practised was merely preventative rather than curative. Had the misdiagnosis of the general practitioner not occurred, the surgery would probably never have been practised. Whether the plaintiff would have eventually suffered from a problem due to some stenosis of some branches of the circumflex coronary artery is a moot point. If I may be permitted to use a terminology often used by orthopaedic surgeons, the cardiologists treated the investigation rather than the symptoms. In my view, this is another red herring.

243. I am not persuaded on the balance of probabilities that the plaintiff has any reduced life expectation because of the previously practised coronary angiography or because of any pre-existing symptoms, nor am I persuaded on the balance of probabilities that incisional hernia diagnosed following the surgery practised at the Gosford Hospital in June 2012 was some pre-existing condition or something to which the plaintiff was predisposed because of some pre-existing condition. If the plaintiff has a normal life expectation, which I accept he has, he can expect to life for a further 17 and a half years. I take that from p 19 of the Furzer Crestani handbook, updated on 1 October 2015.

Non-economic loss

247. I turn now to the various heads of damages claimed by the plaintiff. Even on this issue there was little agreement. The only agreement reached was on past out-of-pocket expenses. No other head of damages was agreed. The maximum payable for non-economic loss is $492,000. In an assessment under MACA I am not required to make any finding as to proportionality, i.e., the award of damages for non-economic loss does not need to be in proportion to a most extreme case. The plaintiff has submitted that I ought award to him $290,000. The defendants, however, submit that the award for non-economic loss should be between $75,000 and $100,000. The disproportion between the two submissions represents the extent of the disagreement between the parties in this case. I am acutely aware of the plaintiff's age. I am acutely aware that at the time of the accident the plaintiff was 64 years old and that at this time he is 69 years old, but of course I must take into account the fact that his life expectancy is seventeen and a half years. True it is that a young person, who suffered the same injuries as this plaintiff did, could expect to have pain and suffering for much longer than the present plaintiff will. However, my assessment of the pain and suffering of the current plaintiff is that it is substantial, and by that word I mean more than "significant". I have sought to outline that in my description of the plaintiff's experiences at both the Wagga Wagga Base Hospital and in the Gosford Hospital. Another important area of evidence in that regard is the observations of Mrs Hobbs. At the end of her evidence-in-chief she gave this testimony:

"Q. Finally, following his injury, did you notice some changes in Tony's personality?

A. Yes.

Q. In what way?

A. He's very frustrated with himself that he can't perform like he used to.

Q. What about his temperament?

A. He's quick tempered.

Q. Was he beforehand?

A. He'd have his moments but not like this. Just not like this. He can't function like he used to, you know. I can see him outside. I can see him in pain a lot, but he is the type of man that doesn't say anything much, you know. I'll say, 'what's the matter?' 'Oh, she'll be right,' you know. I think he wants to get back to how he was and it's never going to happen, and it breaks my heart sometimes."

At that stage Mrs Hobbs was almost in tears. I accept that what she told me in that last answer was the truth. I accept that this accident and its effects have had a profound effect upon the plaintiff and a profound effect upon those intimately involved with him, such as his wife and children.

248. Young people are more resilient than older people. A young man with the plaintiff's injuries would be more able to adapt to such injuries than a man of the plaintiff's age. The plaintiff's "retirement years" have been blighted by the effects of his injuries. I accept that the plaintiff has suffered substantial pain and suffering, substantial anxiety and distress, substantial loss of amenity in his senior years, when he ought be able to relax and enjoy his retirement, to enjoy the maturity of his children and the infancy of his grandchildren, when he ought be able to travel freely and pursue his own hobbies and interests. I believe that the proper award for damages for non-economic loss is $250,000.

Past out-of-pocket expenses

249. Past out-of-pocket expenses have been agreed at $2,843. In view of the hospitalisations that the plaintiff has experienced, they seem improbably low but I am assured by Mr Roberts that because he was treated as a public patient there is nothing refundable to either the Wagga Wagga Base Hospital or the Gosford Hospital.

Past economic loss

250. Between 24 September 2011 and 10 June 2012, the plaintiff suffered no economic loss because he was paid sick leave, then his normal salary whilst performing selected duties and annual leave between 8 and 10 June 2012. However, the plaintiff does claim for the six weeks from 10 June 2012 to 26 July 2012, being part of the period he was in Gosford Hospital and recovering therefrom, and he claims in respect of that period $810 a week. The extent of the claim is $4,860 and I allow that sum.

251. The plaintiff effectively commenced his retirement on 4 June 2013. Thereafter he took long service leave and annual leave, but, had he not taken his leave at the end of his service, he could have taken it as a lump sum on retirement. Instead, he served out his period of long service leave and annual leave. His gross income at the time was $1108 per week, which amounts to $888 net per week. I allow the plaintiff as he claims that sum for the 152 weeks between 8 June 2013 when the plaintiff stopped work and 11 May 2016 when I heard submissions. That amounts to $134,976.

Past superannuation loss

252. Mr Roberts in his summary of the plaintiff's claim neglected to include in the claim for past economic loss the sum of $4,860. I trust I shall be forgiven for not adding to past economic loss the economic loss between 11 May and today's date. Mr Roberts claimed past superannuation loss based not on $139,836 but on $134,976. I would be most assisted by Mr Saunders if he could calculate 11% of $139, 836, which is $15,382.

Future economic loss

253. I accept that, but for the injury now in question, the plaintiff would have worked until he reached the age of 70, that is, until 30 November 2016 which at the time Mr Roberts made his submissions was 29 weeks. I allow $880 per week net for 29 weeks, which results in a figure of $25,752. Mr Roberts submitted that if the conventional 15% discount for vicissitudes were applied, that sum ought be reduced to $21,889. He went on to submit that in view of the very short period between now and that retirement age there should be no discount for vicissitudes. I accede to that submission. I therefore allow for future economic loss of $25,752.

Future superannuation loss

254. Mr Roberts submitted that future superannuation loss would be $2,832 if there were no such discount, and I accede to that submission. I therefore allow $2,832 for future superannuation loss.

Future out of pocket expenses

255. One thing that the plaintiff did not claim was any allowance for future out-of-pocket expenses. I discussed that with Mr Roberts during submissions. I cannot conveniently lay my hands on the transcript where that was discussed, but in my view some allowance must be made. There is always the possibility that the plaintiff will need to have surgery to the incisional hernia, and when one reads the plaintiff's general practitioner's records, one can see that he has had occasion from time to time to visit his general practitioner because of the effects of the motor accident involved. I allow the plaintiff for future out-of-pocket expenses the sum of $2,500.

Past gratuitous care

256. There is also a claim for past gratuitous care. The plaintiff described the sort of things that he used to do around his property, in particular his house, prior to the motor accident here in question, and what he has not been able to do since. I accept that during the period between his discharge from hospital and his return to work on 14 January 2012 the plaintiff was quite severely incapacitated. Not only did he need a walking stick for ambulation but he could not sleep in his own bed. He had to sleep on the couch because of the height of the bed compared to the height of the couch. I accept that he required a great deal of assistance from his wife and his children. Mr Roberts submitted that during that period I should allow two hours a day, or 14 hours a week.

257. On his return to work the plaintiff was obviously more able to get around but he gave evidence that when returning to work he came home tired and was unable to perform many of the activities he used to perform around his house and property. It has been submitted by Mr Roberts that in those periods, after the plaintiff's return to work but prior to his retirement, an average of approximately one hour per day or seven hours per week of assistance or work provided gratuitously to the plaintiff by his wife and/or his elder son, who remained a resident of Wagga Wagga, and his daughter who was also a resident of Wagga Wagga provided to him. I accede to that submission. The amount claimed by the plaintiff during the period between the accident and 4 June 2013 is set out in [149] of the plaintiff's written submissions, which are MFI 8. I accept the calculation made and the sum claimed of $21,539.

Future paid care

258. When the plaintiff retired he had more time available to him and was largely able to do many of the things that he used to do around his property and around his house because of the time available to him. However he gave evidence, and Mrs Hobbs gave evidence, of work that he could not do that was currently done by their son and by other family members, which if commercial assistance were available to him, they would avail themselves of. Mrs Hobbs gave one example of that in her evidence, when it was necessary to call in a pest controller to do work which the plaintiff would have been expected to have done, had he not been injured. The following submissions were put to me by Mr Roberts:

"150. Whilst the plaintiff has returned to some, although not all, of his indoor domestic tasks, he is unable to do many of the outdoor tasks that are required around the house and the farm. These are largely performed by his eldest [sic] son but sometimes by his daughter. They are described by the plaintiff as including such things as gardening, fencing, cleaning eaves and gutters, etc, as well as wood chopping and using the chain saw.

151. Mrs Hobbs estimated that on average 2-3 hours per week are consumed by the plaintiff's children doing the outside chores that the plaintiff used to perform. She swore that if they could afford it they would pay someone to perform that work.

152. Although that evidence would suggest an entitlement to damages calculated at a commercial rate, evidence of such a rate is not before the Court, and the plaintiff simply pursues a claim based on the somewhat lower deemed rate for attendant care services, currently $29 per hour. The plaintiff maintains that claim for ten years, accepting that by his late 70s the plaintiff would have required assistance with that type of work in any event. The claim is for two hours per week at $29 per hour for ten years (412.9) - i.e., $23,948.”

I have omitted from that recital of Mr Roberts' submissions his references to the transcript, which can be found by looking at the written submissions. I should add that Mrs Hobbs gave evidence that she in fact was the person who looked after the family finances and would be in the best position to decide what ought be paid, and whether someone should be engaged to pay for things. I accept the plaintiff's submissions in this regard, and allow for future commercial assistance the sum of $23,948.

259. Because of my mathematical ineptitude I will give my list of heads of damages and my calculator to my Associate to add it all up. I trust, Mr Saunders, that you will be able to verify what my Associate tells me. Wait until he does it first. Did I make any mistake, Mr Saunders, on what I've said thus far, mathematically I mean, or misreading things?

260. SAUNDERS: No, your Honour, but I was just going to raise interest. Was that claimed in the statement of claim or raised in the submissions by Mr Roberts?

261. HIS HONOUR: I don't know. It's generally not claimed these days. It's a long time since I've seen interest claimed. The only time it's raised is generally claims that are not governed by MACA or the Civil Liability Act, such as police tort claims. Is interest available under MACA?

262. ANDERSON: I'm not aware of it, but I don't--

263. HIS HONOUR: I'm not aware of it either, and none is claimed--

264. SAUNDERS: Yes, your Honour.

265. HIS HONOUR: The total of the sums that I have allowed is $484,632. Is that correct?

266. SAUNDERS: Yes, I agree, your Honour.

267. HIS HONOUR: 70% of that sum is, if my pressing the buttons on the calculator be correct, $339,242.40. Is that right?

268. SAUNDERS: Yes, your Honour.

269. HIS HONOUR: Do you agree with that?

270. ANDERSON: Yes.

271. HIS HONOUR: I have now spent 17 hours giving these reasons for judgment. Are any further reasons for judgment required?

272. ANDERSON: I would just ask for a couple of further orders; one being that the exhibits be retained, and two that we have liberty to restore.

273. HIS HONOUR: Orders no, reasons I am asking.

274. ANDERSON: Then no, sorry, your Honour.

Civil Liability Act defences

275. HIS HONOUR: I have enquired of the representatives of the parties whether any further reasons for judgment are required. I am told that none is required. I would merely point out that the defendant raised a number of defences based on the defendant's interpretation of the Civil Liability Act 2002. As far as the defence under s 5D is concerned, I merely refer to the decision of The Nominal Defendant v Hawkins which I cited yesterday, in particular [11] in the reasons of Hodgson JA.

276. The defendant in particular relied on s 5I of the Civil Liability Act, which provides that there is no liability for the materialisation of an inherent risk. Whatever the inherent risk might be in this case has not been in particularised or articulated, but in the riding of horses there are inherent risks. However, there are inherent risks in riding a bicycle, inherent risks in driving a motor vehicle; and the plaintiff was injured not because of any inherent risk of the horse, Buck, but because by the driving of the second defendant of the first defendant's vehicle. I am unmoved by the defendants’ reliance upon the various provisions of the Civil Liability Act.

Judgment and orders

277. Seventy per cent of the total of the damages that I have identified is the sum of $339,242.40. For those reasons I give verdict and judgment for the plaintiff against the defendants for $339,242.40.

278. Is there any particular argument about costs?

279. SAUNDERS: No, just the costs following the event, your Honour.

280. HIS HONOUR: I order the defendants to pay the plaintiff's costs.

281. What further orders did you want?

282. ANDERSON: Firstly that the exhibits be retained; and secondly liberty to restore for any further orders.

283. HIS HONOUR: I am on circuit next week, I just tell you that.

284. Exhibits to be retained for 28 days. Liberty to apply on three days' notice to my Associate.

285. Liberty to apply on three days' notice to my Associate because if, for example, you want a stay, my Associate will be able to tell you when I am available to do it, et cetera.

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Amendments

27 July 2016 - MFI 10 attached

Decision last updated: 27 July 2016