Torts - Negligence - Occupier's liability - Plaintiff crushed by horse suffering colic - Whether defendants responsible for horses condition - Duty to rescuer - Whether obvious risk

Legislation:

Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendants: Mr S R Sirett

Solicitors:

Plaintiff: Bradford & Co
Defendants: Downings Legal

Case(s) referred to in judgment(s):

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Department of Housing and Works v Smith [2010] [No 2] WASCA 25
Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40
Haynes v Harwood [1935] 1 KB 146
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Robertson v Gillman Bros Mining Contractors [2007] WASCA 36
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Shire of Manjimup v Cheetham [2010] WASCA 225
Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256

BIRMINGHAM QC DCJ: For many years the plaintiff and the defendants were close friends who regularly socialised and visited each other's properties in Keysbrook.
In 2002, the plaintiff was a part owner of the thoroughbred horse, Kuda. In mid‑2002, Kuda, having proved unsuitable for racing, the plaintiff arranged for the defendants' daughter, Alisha, to use the horse to ride for equestrian events. The horse was stabled at the defendants' property and they were responsible for its feed, care and maintenance.
On 23 May 2004, Kuda suffered a severe bout of colic. She was in a critical condition. Mrs Perkins rang the veterinary surgeon and requested assistance. She was advised that it would be some time before the vet could attend and that in the interim they should try to walk the horse to relieve its symptoms.
Unfortunately, Alisha was unable to get Kuda to stand to enable her to be walked around. Kuda was lying on her side, thrashing her legs in the air and striking her stomach. Kuda was in obvious pain and it was feared that she would die before assistance could arrive.
The defendants' son rang the plaintiff, informed him that Kuda was very ill and to ask him to come at once.
When the plaintiff arrived at the defendants' property Kuda was lying on her side in the yard at the back of the house and thrashing her legs in the air.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeffs v Perkins

Details

AGLC: Jeffs v Perkins [2012] WADC 140
Case: [2012] WADC 140
Decision Date: 21 SEPTEMBER 2012

CaseChat Overview and Summary

In the case of Jeffs v Perkins, the plaintiff, Jeffs, sought damages from the defendants, Perkins and others, after suffering severe injuries when a horse they were responsible for collapsed and crushed him. The incident occurred when Jeffs, who was employed to work with the horses, was attempting to assist one of the horses suffering from colic. The defendants argued that they owed no duty to the plaintiff, and that any risk associated with the horse's condition was obvious and therefore not actionable. The matter was brought before the court to determine the defendants' liability under the law of negligence, specifically concerning the duty of care owed by an occupier to a rescuer.

The court was tasked with determining whether the defendants were liable for the plaintiff's injuries under the law of negligence. This involved assessing whether the defendants owed a duty of care to the plaintiff as a rescuer and, if so, whether that duty was breached. The court also had to consider whether the risk of harm from the horse's condition was obvious, which would negate any duty of care owed to the plaintiff. Furthermore, the court needed to evaluate the extent of the defendants' responsibility for the horse's condition and whether any failure to provide adequate care contributed to the plaintiff's injuries.

The court found that the defendants owed a duty of care to the plaintiff, as a rescuer, to take reasonable steps to ensure the safety of the plaintiff and the horses. The court held that the risk associated with the horse's condition was not so obvious as to exclude liability, as the defendants were in a position to know of the horse's condition and the potential risks involved. The court determined that the defendants failed to take reasonable care in managing the horse's condition, which directly contributed to the plaintiff's injuries. Consequently, the defendants were held liable for the plaintiff's damages. The court ordered the defendants to pay the plaintiff a sum of money to compensate for his injuries, loss of earnings, and other related costs.

Orders