Jeffs v Perkins - [2012] WADC 140

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JEFFS -v- PERKINS [2012] WADC 140

CORAM: BIRMINGHAM QC DCJ

HEARD: 17-20 OCTOBER 2011 & 24 JANUARY 2012

DELIVERED : 21 SEPTEMBER 2012

FILE NO/S: CIV 3068 of 2008

BETWEEN: DAVID JEFFS
Plaintiff
AND
RAYMOND STANLEY PERKINS
SHARON JEANNETTE PERKINS
Defendants

Catchwords:

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. She was seemingly unable to stand. Alisha was trying to pull Kuda up by a rope attached to a halter.
The plaintiff immediately went to the rear of Kuda and clapped his hands to encourage Kuda to get up.
There is a conflict on the evidence between the plaintiff and the defendants as to what occurred next.
The plaintiff says that Kuda got to her feet when he clapped his hands and then suddenly, without warning, fell backwards onto him, crushing him.
The defendants say that as Kuda attempted to get up from where she had been lying on her side, the plaintiff went to her rear and tried to lift her by putting his hands under her rump. Kuda was unable to get to her feet and fell back onto the plaintiff's shins and feet. The plaintiff managed to step back clear before resuming his position at the rear of Kuda.
When Kuda tried to stand again, the plaintiff again attempted to assist her by lifting her under her rump. Kuda was unable to get up and fell back, crushing the plaintiff to the ground with her full weight across the plaintiff's hips and legs.
The plaintiff suffered significant injuries.
The plaintiff says that his injuries were caused by the defendants' negligence or, alternatively, their breach of the duty owed to him as the owners of property under the Occupiers Liability Act 1985 (WA) (OLA); (see: par 8 of the statement of claim).
The plaintiff says that the hazard created by Kuda suffering a bout of colic was caused by the defendants' negligence in failing to properly feed and care for the horse. The plaintiff says further that the defendants should have warned him of the risk, that a horse in Kuda's condition may collapse without warning and present a risk to persons in her vicinity.
The defendants say that Kuda was properly cared for. The defendants say that Kuda's condition at the time of the incident was due to wind sucking and unrelated to her feeding and maintenance. They say further that given Kuda's behaviour at the time, the risk of injury to persons in the vicinity was so obvious such that it was unnecessary to warn the plaintiff.
The defendants further say any injury suffered by the plaintiff was caused by his failure to take reasonable care for his own safety. The defendants rely on div 6 of the Civil Liability Act 2002 (WA) (CLA); (see: pars 5 and 6 of the amended defence).
Whether the defendants are liable to the plaintiff will turn on the resolution of the following issues:
(a)the events on 24 May 2004 giving rise to the plaintiff's injury;
(b)whether the defendants failed to properly care for Kuda and created a foreseeable risk that she would suffer colic and create a danger to those in her vicinity;
(c)whether the risk of injury to the plaintiff was an obvious risk within the meaning of such term in the CLA; and
(d)if the above matters are determined in the plaintiff's favour, whether the plaintiff's conduct contributed to the incident and any injury suffered by him.
Whilst the question of the ownership of Kuda was raised in the pleadings and evidence, the resolution of that issue is not required. Whether the plaintiff and Mrs Baker retained legal ownership of Kuda does not impact the events that occurred on the day. From mid‑2002 until shortly after the incident in May 2004, Kuda was in the custody of the defendants and they were responsible for her day‑to‑day care and maintenance.

The evidence

The plaintiff

The plaintiff said that at approximately 3.30 pm on 23 May 2004, he received a phone call from the defendants' son, Kieran, informing him that Kuda was ill and that the veterinary surgeon could not come for some time. Kieran Perkins asked the plaintiff to come and assist Alisha with Kuda.
The plaintiff drove immediately to the defendants' property and went to the back paddock. There, he saw Alisha pulling Kuda by a lead rope attached to a halter trying to get her to stand. Mrs Perkins was nearby.
The plaintiff said that Kuda was on her back thrashing her legs in the air. Alisha was very upset and crying. She asked him to help.
The plaintiff said he approached close to Kuda and clapped his hands.
He said that he had seen this done previously when, as a 12‑year‑old, he witnessed his father's friend clap his hands to get a horse, then suffering colic, to stand and walk around.
He said that Kuda was writhing from side to side before she rolled onto her side once and then stood straight up when he clapped his hands. He said that at that point, Kuda's legs buckled and she fell sideways with her body striking him on the left hip and thigh, taking him down under her and pinning his legs.
While Kuda was on top of him, she rolled onto her back and up his body and across his legs and waist. The plaintiff was pinned on the ground beneath Kuda as she kept writhing and moving.
The plaintiff said that Alisha pulled on the lead as Kuda rolled back down his legs to a point where he managed to drag himself free from under the horse.
Whilst the plaintiff was aware Kuda had suffered bouts of colic in the past he said that he was unaware that Kuda had colic when he arrived at the defendants' property that day.
The plaintiff denied that he had attempted to lift Kuda as she partially rose as she attempted to stand.
The plaintiff said that he was not warned to stay away from the horse by the defendants and was unaware of the danger Kuda posed at that time.
The plaintiff says that it was the defendants' failure to provide sufficient or adequate feed to the horse or a proper feeding regime that caused the colic attack. He said from time to time he observed Kuda at the defendants' property and noted that he could see her ribs. He thought that Kuda was not in good condition.
The plaintiff said that in 2003 in response to the defendants' request he asked Cathy Baker, an experienced horse trainer, to provide a feeding plan for Kuda to prevent the incidence of colic. He said that he gave the feeding plan showing the daily quantities of hay and feed that Kuda should receive to the defendants.
Whilst the plaintiff regularly went to the races with Cathy Baker and acted as her strapper his task was to take the racing equipment and jockey's silks and to convey messages from the trainer to the jockey. He had to be licensed as a strapper to get into the enclosure at the races.
The plaintiff said that he had never heard the term 'wind sucking' and that he had not been informed that Kuda was a windsucker. He was unaware that Kuda was being treated for wind sucking.
I did not find the plaintiff a compelling witness. I gained the impression as the plaintiff gave his evidence that he was prepared to minimise matters that were seen as adverse to him. His expressed lack of awareness of Kuda's wind sucking condition is an example. I do not accept that the plaintiff was unaware that Kuda suffered from such condition. Kuda had been fitted with a wind sucking collar since November 2002 (exhibit 3) and all the posts on the defendants' property had been treated with tar to prevent her from mouthing the posts to wind suck. If, as the plaintiff claimed, he closely observed Kuda's condition, such matters would have been apparent to him. Further, the plaintiff had over 20 years' experience with horses. I find it improbable that his then close friends, the defendants, would not have mentioned to him any difficulties they might have with his horse.
Another such example is the plaintiff's evidence that he observed Kuda in an underweight condition. If the plaintiff genuinely considered Kuda to be in an underweight condition at any time it is improbable that he would not have expressed his concern to the defendants. He did not do so.
I was left with the impression that the plaintiff's evidence as to Kuda's condition and general state of health has been coloured by subsequent events when the claim in respect of his injury was contemplated in 2007 and does not accurately reflect the true state of affairs in May 2004.

Catherine Baker

Ms Catherine Baker is a licensed horse trainer with some 30 years' experience. She said that during the last 12 years she had been the manager of a stud looking after approximately 30 thoroughbred horses. She said that by reason of her experience she was able to express an opinion as to the causes of colic generally and the condition of Kuda.
Ms Baker said that in 1998 she purchased Kuda with the intention of racing her. She gave the plaintiff a half share as a birthday present and in return for assistance that he had given her over time.
Ms Baker said that once they had got Kuda the plaintiff helped her at the races as a strapper. Whilst the plaintiff may sometimes lead a horse for her, his involvement with handling the horses was minimal. She said that he was not confident around horses but was licensed as a strapper so that he could stay involved with her as a licensed trainer.
Ms Baker said that the plaintiff suffered an allergic reaction if he touched a horse. She said that if ever he tried to touch one 'he came out in a huge rash and had to rush off and wash and wash and wash himself, and he'd just be covered in a rash within minutes of touching it' (ts 68).
Ms Baker said that Kuda was trialled several times and raced in 2002, however was found to be unsuitable. At the plaintiff's request she was given to the defendants for Alisha to ride.
Ms Baker said that she had experience of horses with colic and was aware that a proper feeding regime was required to reduce the risk. She described colic as a very severe stomach ache.
Ms Baker said that a horse that contracts colic is in severe pain and a danger to persons in the immediate vicinity. A horse will react by rolling to try to ease the pain. She said that a horse with colic that is standing is liable to collapse as a result of the pain. In her opinion, the most appropriate action was for a specialist, such as a veterinary surgeon, to be called and an experienced person to try and stabilise the horse until the vet arrives. Ms Baker said that it was important to exercise care with horses suffering colic as they are unpredictable.
In her opinion, a whip or a stick would be used to get the horse up. It was her opinion it would be foolish to try and assist a horse suffering from colic that was attempting to stand.
Ms Baker said that she was kept informed by the plaintiff of Kuda's state of health after she had been given to the Perkins and was aware that Kuda had started to suffer colic attacks in 2003. At that time, she recommended that the horse have unlimited hay as roughage.
She said that approximately three or four weeks after the accident she picked up Kuda from the defendants' property and took her back to her property. She described Kuda as being in light condition and thought that she was lean and hungry.
Ms Baker said that after Kuda was fed and her condition improved, she ceased to suffer colic. She said that she was only aware of Kuda suffering 'colicky signs' in 2009 (par 37 exhibit 2).
Ms Baker was seemingly unaware that Kuda suffered a bout of colic on 25 June 2006, as recorded in the 'Patient History Report' maintained by Larkhill Equine Hospital: (see: exhibit D17.
Ms Baker said that she was not aware that Kuda was a windsucker. She described wind sucking as a condition where the horse arches its neck and swallows air.
I accept that by virtue of her experience Ms Baker is qualified to describe the conditions observed by her of horses that suffered bouts of colic and the caution required when handling such horses. I am not satisfied however, that Ms Baker was independent or objective in her evidence and consider that any opinion proffered by her was so affected.
I did not find Ms Baker a credible witness. I gained the impression during her evidence that Ms Baker was keen to support the plaintiff's case as best she could. Ms Baker's description of the plaintiff suffering an allergic rash when handling horses is one such example. It is more probable that if the plaintiff suffered such allergy it would have found its way into the plaintiff's evidence. It did not. Further, the plaintiff was engaged by Ms Baker as a strapper and assisted her with the horses at the races.
Whilst no objection was taken in respect of Ms Baker's qualification to give expert testimony, I am not satisfied that she had any relevant qualifications or experience in respect of the causes of or treatment of colic. She acknowledged that when any horses trained by her suffered colic they were treated by a veterinary surgeon, rather than by her.

Defendants' case

Sharon Perkins

The second‑named defendant, Sharon Perkins, said that the defendants had been good friends with the plaintiff for many years prior to the incident in May 2004. That friendship ceased when these proceedings were foreshadowed in late 2007.
In 2002 the defendants' daughter Alisha wanted a horse with a bit more 'get up and go'. The plaintiff offered Alisha the use of Kuda provided the defendants looked after her.
Mrs Perkins said that about midday on 23 May 2004 Alisha told her that Kuda had colic and that she had brought her in on the lead rope into the paddock behind the house. Mrs Perkins telephoned Larkhill Equine Hospital and was informed that it would be some time before the vet would be able to attend.
Mrs Perkins said that she and Alisha then tried to keep Kuda walking but Kuda kept going to ground and thrashing around on the ground in pain. Ultimately, Kuda's condition progressed to a point where she was unable to stand.
Mrs Perkins said she thought that Kuda may die. She asked her son to ring the plaintiff and to ask him to come to the property. Mrs Perkins' explanation for ringing the plaintiff was that she thought the plaintiff might want to be present if Kuda died.
Mrs Perkins said that when the plaintiff arrived Kuda was lying on her side thrashing her legs. She said the plaintiff immediately approached Kuda from behind around the horse's mid‑back region.
Mrs Perkins said that she was aware that the plaintiff was a racehorse strapper and assumed he knew what he was doing.
The plaintiff reached down from his waist and placed his hands under Kuda and lifted as if to help Kuda to stand. Kuda attempted to stand.
Initially, the plaintiff took some weight when suddenly the horse rolled onto his legs pushing him back onto his buttocks and momentarily trapping him by the legs. Mrs Perkins said that Kuda then rolled away and the plaintiff was able to get clear. She said that the plaintiff then again attempted to lift her from behind but, however, on this occasion Kuda rolled over him and pinned him across the knees and hips.
The plaintiff was unable to get clear. Mrs Perkins said that she took the plaintiff under the armpits and pulled him clear. The plaintiff's wife was contacted and advised of the plaintiff's injury.
Mrs Perkins rejected the plaintiff's counsel's suggestion that Kuda was standing upright and simply fell on the plaintiff. She further denied that she was engaged on a telephone call when the plaintiff was assisting Kuda.
Mrs Perkins said that after Kuda's first colic attack the veterinary surgeon who attended to treat her advised that the likely cause was that the horse had eaten sand. He recommended that Kuda be given plenty of hay that served as roughage to move any sand trapped in the gut in the digestive process. Mrs Perkins said that the vet advised 'hay, hay and more hay' to avoid colic. Thereafter, Kuda was given additional hay in her feed. She said the vet's recommendations were followed and Kuda was fed additional hay and chaff. As further recommended by the vet, the hay was fed to Kuda on a carpet square and her grain and chaff in a tub to prevent her from ingesting sand. Mrs Perkins said that the defendants took on board everything that they were told by the vet and acted upon it.
Kuda had recurrent bouts of colic commencing in July 2003. When the horse suffered a bout of colic in September 2003, the veterinary surgeon attending at that time noted that the likely cause of the colic was due to Kuda wind sucking.
Mrs Perkins said that she had noticed that Kuda was a bad windsucker and would put her mouth on the tops of the fence posts and suck air into her stomach. Mrs Perkins said that she sought professional advice as to how to prevent Kuda wind sucking and purchased a collar for her that was designed to stop it. Additionally, the defendants tarred the top of the fence posts to prevent Kuda from mouthing the posts in order to wind suck. The tar on the posts was regularly maintained. They also painted the fence posts with a chilli mixture as it had been recommended as a means to discourage Kuda from mouthing the posts. Mrs Perkins said that the measures employed to curtail the wind sucking were ineffective.
Mrs Perkins said that each time Kuda had suffered a colic attack it was treated by the local veterinary surgeon.
There were some aspects of Mrs Perkins' evidence that I do not accept as credible.
Mrs Perkins said that she had asked the plaintiff to come to their property on 23 May 2004 as she feared that Kuda might die. I was troubled by this explanation and left with the feeling that Mrs Perkins sought to understate the importance of the plaintiff's purpose in attending the defendants' property that day.

Given Kuda's deteriorating condition, that Alisha could not get her to stand, Mr Perkins was not at home and that the veterinarian surgeon could not attend to assist for some hours, it is more probable that Mrs Perkins called their good friend and near neighbour, the plaintiff, in the hope that he could assist Kuda, rather than to witness her death.
In the circumstances, I hesitate to rely upon her evidence generally and look to the evidence of others as to the events of the day.

Sandra Hanson

In 2004, Mrs Sandra Hanson lived next door to the defendants. She has had some 30 years' experience with horses.
Mrs Hanson said that she was familiar with the horses on the defendants' property and that they were always maintained in good condition.
She said frequently the defendants' horses would be at the fence line and she would see them.
She said that the condition of Kuda was the same from when she arrived to when she left. She said that Kuda was always in good condition and typical of some thoroughbreds, her condition was light on. In her opinion, Kuda maintained a good lean condition.
Mrs Hanson said that she was often present when the defendants' horses were fed. She observed that they were fed hard feed in bins. She said that Kuda was fed on a carpet square in the paddock and was fed hay and hard feed both morning and night.
Mrs Hanson thought that Kuda was susceptible to colic. She recalled that on one occasion she had noticed the horse was down when the defendants were not at home. She called Mrs Perkins on her mobile and Mrs Perkins returned. With her help they got the horse up and walked it around until the vet came and treated the horse.
Mrs Hanson said photographs of Kuda taken in April 2004 (exhibits A1 and A2), approximately a month before the incident, depicted her in a good condition. She said that the horse was in the same condition on 23 May 2004.
Mrs Hanson said she was alerted to the incident on 23 May 2004 when she heard Alisha Perkins crying out for Kuda to get up.
Mrs Hanson was aware that Kuda had previously suffered colic. Mrs Hanson said that it was obvious to her that Kuda was suffering from colic again. As Alisha was upset Mrs Hanson went to assist her.
Mrs Hanson said that Alisha had Kuda on a lead rope in a paddock behind the defendants' house. When she arrived the horse was down. However, together they managed to get Kuda to stand and tried to walk her for a while but she went down again and they unable to get her to stand.
Ms Hanson said that she was trying to help and to stop Alisha being upset. She encouraged Alisha to hold the lead and to try and get the horse up by pulling on the lead. Mrs Hanson said she reminded Alisha to keep calm when was talking to Kuda.
Mrs Hanson said that Kuda was trying to get up when the plaintiff arrived. She described Kuda as rolling on her side and thrashing her legs as she attempted to stand.
Mrs Hanson described how the plaintiff had clapped his hands to try and encourage Kuda to get up. The plaintiff then went to a position where he was close to Kuda's hindquarters and used his hands under her, as if he was trying to lift the animal up.
Mrs Hanson said that Kuda got into a half‑crouched position trying to collect her legs under her to stand. Kuda then attempted to get up as the plaintiff tried to lift to her under her hindquarter. Mrs Hanson said that Kuda got about quarter way up before she rolled back onto the plaintiff, pinning his legs and hips under her full weight. Kuda then rolled off the plaintiff and the plaintiff was able to scramble away.
Mrs Hanson said that Kuda did not get into an upright position before she rolled onto the plaintiff.
Mrs Hanson rejected the suggestion by counsel for the plaintiff, Mr Bradford, that Kuda was standing upright and simply fell onto the plaintiff.
Mrs Hanson said that she would not have gone into the position that the plaintiff did as she was concerned that the horse would roll on her.
Mrs Hanson said that she had not been asked to recall the incident until 2008 when requested to do so by a person from an insurance company. She said that she had not discussed the matter with the defendants.
I consider Mrs Hanson gave a clear credible account of the incident she witnessed and was seemingly in a good position to witness the event whilst not actively involved. I found her forthright and able to provide an independent objective account of the events. Her description of the events on the day, particularly of the plaintiff's actions, accord generally with those of Alisha Jarman.

Alisha Jarman (nee Perkins)

Alisha Jarman was 12 years old when the 4‑year‑old thoroughbred Kuda came to the property in mid‑2002 for her to use for show jumping.
Ms Jarman said around lunch time on 23 May 2004, she noticed Kuda was down and appeared to be suffering colic. Kuda had suffered colic on other occasions.
She put Kuda on a lead rope and led her up to the paddock at the back of the house and informed her mother. Her father was away in the north‑west at the time.
Ms Jarman said her mother called the vet. She was told to get Kuda up and keep her walking to relieve the colic symptoms until the vet could attend.
She was told that if the horse thrashed around on the ground it could die.
Initially, Ms Jarman was able to get Kuda to stand and walk around. After a while, however, Kuda's condition deteriorated and Kuda went to ground and could not stand. Kuda was on her side and thrashing her body and legs around in pain. Ms Jarman said that she was upset and crying as Kuda twisted and rolled on the ground, unable to get up.
Ms Jarman said that at that time the plaintiff arrived and came to help.
Ms Jarman said the plaintiff went to where Kuda was lying and leaned down from his waist and placed his hands under Kuda's side, as if to lift her or encourage her to get up. Kuda was kicking and rolled towards the plaintiff catching him under her body and pushing him backwards as Kuda rolled on the plaintiff's legs. Ms Jarman said that the plaintiff sat back onto his backside with his hands behind him before he pulled away. She described how the plaintiff again tried to lift Kuda. Kuda tried to stand but was unable to get to her feet and fell back onto the plaintiff, rolling her body onto his legs up to his hips and pinning him beneath her.
She said her mother pulled the plaintiff out by grabbing him under the armpits and dragging him clear.
Ms Jarman said that whilst it was her recollection that the plaintiff tried to lift Kuda twice she accepted that she could be mistaken. Whilst Ms Jarman did not recollect the plaintiff clapping his hands she accepted that it was possible that he did so.
Ms Jarman said that Kuda did not rise to a standing position on all fours at any time. At that time she was pulling on the lead rope, trying to get the horse to its feet.
Ms Jarman said that Kuda started to have colic attacks in 2003. On each occasion they called the local veterinary surgeon to attend and treat her.
Ms Jarman said that the vet recommended that they do a number of things to minimise the risk of Kuda getting a recurrence of colic. She was told to include a large amount of hay in Kuda's diet to clean the sand out of her digestive system. She was to feed Kuda her hay on a carpet square and chaff in a tub to stop Kuda ingesting sand when she ate her food. Ms Jarman said that they followed the advice they had been given.
Ms Jarman said that Kuda was a windsucker. Kuda would put her mouth on the top of the fence posts and suck air into her gut. She had seen her do that on a number of occasions. Ms Jarman said that her parents purchased a wind sucking collar and painted the fence posts with Stockholm tar on a regular basis. They also painted the fence posts with a chilli mixture to discourage Kuda from wind sucking. She said that none of the measures taken stopped Kuda from wind sucking.
I found Alisha Jarman an impressive witness. She answered all questions asked of her in a direct and forthright fashion and did not seek to conceal her inability to recall some of the details. When she was unsure of a matter she said so and accepted that some aspects of her recollection may be faulty. Her description of the evidence is largely consistent with that of Ms Hanson.
To the extent that any differences arise I consider that they are the product of the passage of time and the perspective from which each viewed the incident.

Ray Perkins

Ray Perkins said in 2002 he spoke to the plaintiff about getting another horse for his daughter Alisha. He was informed by the plaintiff that he had a share in a horse with Cathy Baker and offered to allow Alisha to ride the horse and look after it.
Mr Perkins said that when home from work he would ride Kuda and feed her and the other horses they owned.
Mr Perkins said that in the six months prior to the plaintiff being injured he was involved in getting feed for the horses and included plenty of hay. He said he gave directions to his daughters on how to feed the horses.
Mr Perkins said that initially the hay was put on the ground but when Kuda suffered a bout of colic they then took advice from the vet and put her feed on carpet to prevent her from ingesting sand. They also gave Kuda hard feed in a nine gallon bucket.

Kieran Perkins

The defendants' son Kieran was 13 years old when the plaintiff was injured. Kieran Perkins said his sister Alisha was holding the lead rope whilst Kuda was rolling on the ground. At his mother's request he rang the plaintiff. He informed the plaintiff that Kuda was sick and asked him to come.
Kieran said that the plaintiff was positioned on the back side of Kuda and tried to lift Kuda to get her to stand when she rolled onto him. The plaintiff was not hurt as she rolled back. He described how when the plaintiff tried again to lift Kuda she rolled right onto him past his knees.
Kieran said he then called the plaintiff's wife and told her that the plaintiff had been injured and handed the phone to his mother.
Kieran said that he generally did not have anything to do with the horses on the property.
Whilst Kieran was certain that he had witnessed the incident when the plaintiff was injured, he acknowledged that he had only been asked to recall the incident a few days prior to giving evidence, some seven years later.
I note that Kieran Perkins was present in court whilst all other witnesses gave their evidence notwithstanding an order excluding witnesses having been made at the commencement of the trial. I do not place any weight on his evidence. I am not confident that his account of the incident has not been influenced by what he has heard from others. I do not rely on it.

Dr Christy Secombe

Dr Secombe has been practising as a veterinary surgeon since 1994 and is a specialist in equine internal medicine. She is a member of the Australian College of Veterinary Scientists in both equine medicine and surgery and a Diplomate of the American College of Veterinary Internal Medicine. She has completed a research based master's degree with first class honours in equine disease relevant to clinical practice and is currently senior lecturer in Equine Medicine at the veterinary science faculty at Murdoch University.
Dr Secombe gave expert opinion evidence at trial. Her report dated 3 March 2011 was tendered as exhibit C.
Dr Secombe described colic as simply a word used to describe abdominal pain in horses. It was a clinical sign not a diagnosis. She said it was impossible to say what caused the colic in that there were many possible causes.
Dr Secombe said that some horses may be more predisposed to colic or abdominal pain related to an underlying motility issue in their gastrointestinal tract. It could also be related to their ability to tolerate pain. Some horses do not tolerate pain well and manifest signs of colic with a small gut ache whilst other horses would be quite stoic and not manifest pain with the same degree of gastrointestinal dysfunction.
Dr Secombe said that the epidemiological studies of equine colic were often conflicting and served to illustrate that colic as a syndrome was complex and often multifactorial in nature. Such studies have identified certain risk factors that are associated with an increased risk of colic rather than being definitively causative. It is difficult to identify the causes of colic in a horse 100% of the time however there are certain risk factors that may make a horse more prone to have colic.
Dr Secombe said that examples of such factors included unusual drugs or toxins, a sudden change in feed, placing horses in a stressful environment and wind sucking or crib biting.
The risk factor of parasites causing colic would be more likely to be a bigger risk factor in a younger horse that does not have good immunity against parasites, whereas it is less likely to be a risk factor in an older horse that would have good immunity against parasites.
Dr Secombe said that a horse will accumulate sand in the large colon. Sand is ingested off the grass that horses eat. If the horse was ingesting sand, particularly on new grass, a piece of carpet should be placed on the ground for feeding or, alternatively, the horse can be fed on a concrete area. Furthermore, the horse should have good access to water at all times.
Dr Secombe said that wind sucking or crib biting behaviour has been shown to increase the risk of colic and was a difficult problem to manage. Dr Secombe said that wind sucking collars were commonly used as a means of deterring a horse from such behaviour and was often the first line of therapy. She said that painting the fence posts with foul tasting products was also useful, however, some horses enjoyed the act of wind sucking such that they would then wind suck on other objects in the paddock.
She said that if a horse had a history of recurrent bouts of colic she would make sure its teeth were checked to ensure it was eating properly, maintain parasite control and examine where the horse was being fed. She said, however, that even with all of those matters properly addressed the horse could still suffer bouts of colic.
Dr Secombe said that horses display abdominal pain in a variety of ways. The most common clinical signs that horses would display with colic are that they will stretch out. They may paw, kick at their abdomen, turn their head and bite at their flanks and may roll on their backs.
Dr Secombe said that it is well recognised that a stressed, frightened or painful horse is unpredictable and potentially dangerous. A horse with colic may be aggressive and violent. She said that if the horse was non‑compliant she would not try and treat it but would try to get the horse up by frightening it.
In her opinion, it is unreasonable for a person to assume they could physically lift or assist an estimated 500 kg horse into a standing position when the animal is in lateral recumbency and displaying signs of colic. It is possible that the actions of the plaintiff may have contributed to Kuda becoming more anxious.
Dr Secombe said that recurrent colic is difficult to diagnose because it may come and go for different reasons. There were a number of risk factors that could be considered but it was not possible to identify which of those was causing the colic on any particular occasion. In her opinion, an overweight horse had the capacity to get colic.
Dr Secombe described the condition of Kuda as depicted in the photographs exhibits A1 and A2 as displaying the horse in appropriate body condition. In her opinion, the horse appeared to have adequate coverage on its ribs and was not underweight. Exhibits A1 and A2 were taken approximately one month prior to the incident in March 2004.
It was Dr Secombe's opinion that the defendants had properly minimised the majority of management risk factors by the employ of parasite prevention plan, maintaining adequate body condition, free access to water, methods to minimise sand ingestion (with the use of carpet for feeding and feed troughs) and pasture access. In her opinion, the defendants had also made all attempts to try and reduce or prevent Kuda engaging in wind sucking behaviour.
Dr Secombe opined that the fact that Kuda had two subsequent colic episodes whilst under other people's care further supported the fact that the defendants' management practice for Kuda did not cause the recurrent colic.
Dr Secombe is a well qualified veterinary surgeon with considerable experience on the likely causes and treatment of equine colic. Dr Secombe gave her evidence in an objective forthright manner. I found her evidence was compelling and have no hesitation in relying upon the opinions expressed by her in relation to the causes and treatment of equine colic in preference to Ms Baker.

Documentary evidence

The treatment records for Kuda from the Baldivis Veterinary Hospital were tendered. Exhibit D4 records an attendance by the vet from the Baldivis Veterinary Hospital to treat Kuda for colic symptoms on 6 July 2003 (exhibit D11), 17 September 2003 (exhibit D3) and 9 April 2004.
The explanation for the colic on 17 September 2003 was recorded by the attending veterinary surgeon, Dr Roger Dixon, as 'windsucker, suspect spasmodic/tympanic colic secondary to wind sucking'.
The patient history record for Larkhill Equine Hospital (exhibit D17) records the attendance on 23 and 24 May 2004 that is the subject of the plaintiff's claim. There is an additional entry recording an attendance and treatment of Kuda for colic for 25 June 2006. At that time Kuda had been returned to Ms Baker and was being cared for by others.
I pause to note Ms Baker confirmed that Kuda suffered a bout of colic in 2009 that was treated by an attending vet.
It is apparent from the documentary evidence and the evidence of Ms Baker that Kuda has suffered five bouts of colic in addition to that occurring on 23 May 2004 – three prior to the incident and two subsequently.

Observations and findings

Experience tells us that human recollection is inherently frail, particularly with the passage of time. The events about which the witnesses have testified occurred over seven years earlier. To some, the incident was of great moment and would necessarily be remembered whilst to others less so. In such circumstances I find the documentary records such as photos and veterinary accounts provide important contemporaneous support for oral testimony.

(a) Circumstances of incident

I prefer the evidence of Mrs Hanson and Ms Jarman as to the events that occurred at the defendants' property on 23 May 2004. I consider that their accounts of the incident are consistent and accord with the probabilities. They were best placed to witness what occurred when the plaintiff assisted Alisha Perkins to get Kuda to stand.
To the extent that there are any differences in their descriptions I consider such differences arise from the passage of time and the perspective from which each viewed the incident.
Ms Jarman was then a young girl and naturally distressed with the state of Kuda and fearful that her horse may die. Whilst Ms Jarman described Kuda as trying to rise twice – momentarily trapping the plaintiff on the first occasion, Mrs Hanson described Kuda as attempting to rise and getting to about a quarter way up before collapsing onto the plaintiff.
I consider that whilst each has a different emphasis on what they recall there is not a significant difference in the description of the event, namely that Kuda was thrashing around and attempting to get up, fell towards the plaintiff as it struggled to do so – ultimately falling down onto the plaintiff as he tried to assist the horse to stand.
I am satisfied on the evidence and find the circumstance on 23 May 2004 to be as set out below.
That upon Alisha Perkins observing that Kuda was showing signs of colic she informed her mother. The vet was contacted. He indicated that he was unable to attend for some time. The defendants were advised to try and get the horse to stand and to walk it to ease its symptoms.

With the assistance of Mrs Hanson, Alisha Perkins was initially able to get Kuda to stand and walk but ultimately Kuda went down and was unable to get up.
As Kuda's condition deteriorated it was feared that she would die before the vet could attend to treat her.
The defendants then contacted the plaintiff and asked him to assist Alisha with Kuda. Notwithstanding that Mrs Perkins did not seek the plaintiff's assistance until Kuda's condition had deteriorated significantly, I do not accept her explanation that she asked the plaintiff to attend in case Kuda died. It is more probable and I find that the plaintiff was asked to attend as a friend and neighbour who may be able to help save Kuda and in the expectation that he would do so rather than to simply witness her death.
The defendants were aware that the plaintiff's attendance that afternoon was in response to their call for assistance and that it was likely that the plaintiff would go to Kuda in an effort to assist as requested.
When the plaintiff arrived Alisha Perkins was then pulling on Kuda's lead to encourage her to stand. Kuda was then in an obviously very distressed state, rolling onto her back, thrashing her legs and unable to stand.
The plaintiff immediately went to Kuda and clapped his hands in an effort to get her to stand. Kuda rolled on her side and attempted to stand, ultimately getting into a half‑crouched position to collect her legs under her.
At that time the plaintiff moved to a position close to Kuda's hindquarters and used his hands under her to lift her and encourage her to stand.
Kuda attempted to rise twice – momentarily trapping the plaintiff when she rolled back on the first attempt, before getting to about a quarter way up on the second occasion. On Kuda's second attempt to stand, the plaintiff again tried to assist by lifting Kuda under her rear hind quarter.
I do not accept the plaintiff's evidence that Kuda was standing and collapsed onto him without warning.
I find that Kuda was unable to stand and fell back onto the plaintiff as he attempted to lift her, crushing him under her full weight across his hips and knees. As Kuda rolled away the plaintiff was able to get clear with the assistance of Mrs Perkins.
I accept Dr Secombe's evidence that it is probable that the plaintiff's actions may have contributed to Kuda being more anxious.

(b) What caused Kuda to suffer colic on 24 May 2004?

It is the plaintiff's case that the bout of colic suffered by Kuda on 23 May 2004 was caused by the defendants' failure to properly feed Kuda.
The plaintiff points to a number of factors in support of such assertion. Those factors include: that Kuda did not suffer colic before she was given to the defendants, that Kuda was observed by Ms Baker to have lost a considerable weight when stabled at Ms Baker's for treatment in June 2002; that changes to feeding regime had been adopted by the defendants were required following Kuda suffering a bout of colic; that Kuda was observed by the plaintiff to be in poor condition with her ribs visible; that Kuda's condition as displayed in exhibit A2 was underweight for a show horse although not seriously underweight (ts 80) and that Kuda had suffered four bouts of colic whilst she was in the possession of the defendants and only two subsequently.
It was Dr Secombe's evidence that 'colic' is a description of a symptom and not a diagnosis. Colic is a general term used to describe symptoms of abdominal pain in horses that may have various potential causes. Some horses may suffer it more than others and it may come and go. Importantly, it may be influenced by apparently contradictory conditions, for example, too little hay and roughage or too much hay.
Whilst there are multiple causes for a horse to display the symptoms of colic a number of risk factors have been identified. Dr Secombe said that the literature was uncertain but that sand ingestion and wind sucking was sometimes thought to be involved.
I prefer Dr Secombe's evidence on any issue concerning the nature and effect of colic and its proper treatment. Her evidence on the causes and avoidance of equine colic is compelling.
I accept the evidence of Ms Jarman and the defendants that the recommended changes to the feeding regime were implemented and were adopted for feeding Kuda in 2003 and were continued in 2004.
I am satisfied and find that Kuda was fed in a manner consistent with the veterinary advice the defendants received including the feeding of hay, chaff and other roughage in the quantities recommended and that all necessary steps were taken to avoid the ingestion of sand by feeding her out of a feed trough and by placing her hay on a carpet square.
It is reasonable to infer that the bouts of colic initially suffered by Kuda in 2002/2003 were referrable to the feeding regime then adopted by the defendants which prompted the plaintiff to obtain detailed feeding instructions from Ms Baker. Such inference is supported by the advice then given to the defendants by the attending veterinary surgeon as to the recommended changes to the feeding practices to ensure that Kuda did not ingest sand when being fed.
It is important to note however, that the identification of one possible factor is not sufficient to attribute responsibility to the defendants for the incident in May 2004. The plaintiff must establish that the feeding regime adopted by the defendants was causative of his injury.
As observed by Pullen JA in Robertson v Gillman Bros Mining Contractors [2007] WASCA 36 [17] - [19] where there are a number of possible causes, only one of which was the cause associated with the allegation of negligence, the plaintiff must fail if that alleged by him as the possible cause does not rise above being one of other possibilities open on the evidence.
I am satisfied that there are several competing causes for the bout of colic suffered by Kuda on the day.
I am satisfied on the evidence of Alisha Jarman, Mrs Hanson and the defendants that Kuda was a wind sucker, in that she would mouth the fence posts and suck air into her stomach.
I accept the evidence of Dr Secombe that this was likely to be a factor that caused Kuda to suffer colic. There is support for Dr Secombe's view in the treatment notes of the attending veterinary surgeon, Dr Roger Dixon, on 17September 2003 in terms 'windsucker, suspect spasmodic/tympanic colic secondary to wind sucking' (see exhibit D3).
In the circumstances I am not satisfied that Kuda's feeding regime and its possible impact on her condition is of any greater significance than other competing factors, including wind sucking.
It follows that even if the plaintiff's allegation of inappropriate feeding of Kuda was established, it does no more than support a proposition that it was one of several possible causes, particularly given Kuda's propensity for wind sucking and her subsequent history of colic attacks.
It is apparent from the documentary evidence and the evidence of Ms Baker that Kuda had suffered five bouts of colic in addition to that occurring on 23 May 2004 – three prior to the incident and two after Kuda had been returned to Ms Baker by the defendants.
I accept the evidence of the defendants' witnesses generally as to the feeding regime adopted for Kuda and as to her condition.
I find support for such view in the evidence of Mrs Hanson as to the defendants' feeding practices and her observation of Kuda's condition from time to time in the adjoining paddock. Mrs Hanson has some 30 years' experience with horses and her observations carry weight.
Further, Mrs Hanson's evidence is supported by Dr Secombe. Dr Secombe opined that Kuda as depicted the photographs exhibits A1 and A2 was in good condition. Mrs Hanson said that the photographs accurately depicted the condition of Kuda when observed by her throughout the entire time Kuda was at the defendants' property.
I am satisfied and find that the defendants did all that was required to properly feed and care for Kuda including feeding her appropriate feed with hay and chaff in a manner that either minimised or eliminated the risk of colic caused by the ingestion of sand. I further find that the defendants exercised reasonable care in discharge of any obligation owed by taking advice from veterinarians that attended the horse and implementing all instructions in relation to the proper care and maintenance of Kuda.
I am satisfied and find that in the absence of any identified feeding deficiency the more probable explanation is that Kuda's colic on 23 May 2004 was due to wind sucking – as observed by the veterinary surgeon who treated her on a prior occasion and recorded that as the probable cause (see exhibit D3).
As observed by Dr Secombe, the fact that the horse subsequently suffered bouts of colic when it was with the new owners supports the view that it was not a condition caused by the defendants' negligent feeding and management of Kuda.
I am further satisfied and find that the defendants did all that was reasonably required of them to treat Kuda for wind sucking by treating the posts and purchasing and fitting a wind sucking collar for the horse.
I am not satisfied on the balance of probabilities that the plaintiff's injuries were caused or contributed to by the feeding regime or any treatment of Kuda by the defendants. I find that the defendants' treatment or management including feeding routines of Kuda did not cause or contribute to her suffering the bout of colic on 23 May 2004.

(c) Obvious risk

The defendants rely on s 5N of the Civil Liability Act 2002 (WA) (CLA) and plead that any risk of the plaintiff being injured by Kuda's state on 23 May 2004 was so obvious that no warning was necessary to safeguard him from injury. If the risk was obvious, the plaintiff is presumed to have been aware of the risk unless the plaintiff proves on the balance of probabilities that he was not aware of the risk: see s 5N CLA.
The determination of this issue requires the consideration of two aspects: first, was the risk an obvious risk within the meaning of the CLA and second, was the plaintiff unaware of the risk at the time?
An obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. It includes risks that are patent or common knowledge, even though it has a low probability of occurring or if the risk (or a condition or circumstance that is giving rise to the risk) is not prominent, conspicuous or physically observable: (see s 5F CLA).
In the present case, the risk was the risk of injury to a person seeking to assist a horse in a distressed state to stand or by being in close proximity to the horse whose movements were uncontrolled and unpredictable.
When the plaintiff arrived at the defendants' property Kuda was in an obvious distressed and agitated state, rolling on her back and thrashing her legs. She was unable to stand.
I am satisfied and find that it would have been readily apparent to the plaintiff by reason of his previous knowledge of Kuda's health and his observations when he responded to the defendants' request for assistance on 23 May 2004 that Kuda was then suffering a bout of severe colic.
The fact that the plaintiff adopted the same procedure of clapping his hands to get Kuda to stand as he had witnessed with a horse suffering colic in similar circumstances as a 12‑year‑old boy further supports such conclusion.
There can be little doubt that the bout of colic suffered by Kuda on this day was more serious than anything previously witnessed. Kuda was in obvious distress and it was feared she would die.
The risk to those getting close to Kuda would have been apparent. Kuda was a large horse estimated to weigh approximately 500 kg. She was distressed and rolling uncontrollably, thrashing her legs in the air. She was unresponsive to commands and being held by a lead rope attached to her halter in the hands of an upset 14‑year‑old girl. As Kuda struggled to stand she was unable to get upright and would roll backwards.
I accept the evidence of Mrs Hansen and Alisha Perkins and find that when Kuda attempted to stand the plaintiff sought to assist her to do so. After an unsuccessful attempt which resulted in Kuda rolling back and almost trapping the plaintiff, Kuda made another attempt to stand or roll to get onto her legs when she again rolled back. At that time the plaintiff was then trying to encourage Kuda by lifting her hindquarters. Kuda then rolled on the plaintiff crushing him.
As observed by Dr Secombe it is likely that the plaintiff's actions may have contributed to making the horse more anxious.
I am satisfied that, confronted with such circumstances, it would have been obvious that Kuda posed a significant danger to anyone in her vicinity.
A reasonable person in the position of the plaintiff would have appreciated that to attempt to lift a horse behaving in that manner or to get in such close proximity to a distressed horse in the manner adopted by the plaintiff, gave rise to a significant risk of being injured by the horse.
I accept the plaintiff's evidence that, notwithstanding his role as a strapper, he had limited experience in the handling of horses. He had little or no experience in dealing with horses affected by colic other than what he had witnessed at age 12. His experience as a strapper would not have equipped him to assist Kuda that afternoon insofar as he would be only accustomed to healthy horses entered for races and not those suffering colic.
That said, however, I am satisfied and find that the plaintiff was then aware that Kuda was suffering a serious bout of colic and in such a distressed and uncontrolled state there was a real risk that he may be injured by any unexpected or uncontrolled movement of the horse if he attempted to assist her.
I am satisfied and find that the risk was an obvious risk within the meaning ascribed to such term for the purposes of s 5N of the CLA and that the plaintiff was then aware of such risk.

Conclusions on liability

Negligence claim

Where a person has created or increased the risk of harm he has a duty of care to protect others from that risk of harm: Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256, 261 262; Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469 [56]. A person who put himself in peril in attempting to save life or property is entitled to recover damages from the person whose negligence has caused the danger: Haynes v Harwood [1935] 1 KB 146.
It follows that if the defendants by their negligent conduct in the care and maintenance of Kuda caused or contributed to Kuda suffering the bout of colic on 23 May 2004, the defendants will be liable for any injury suffered to the plaintiff or a class of persons including the plaintiff who might be expected come to the assistance of Kuda.
It is unnecessary for the plaintiff to show that the precise or particular character of the injury or the manner in which the injury was sustained was reasonably foreseeable. It is sufficient if the kind or type of injury was foreseeable even if the extent of the injury was greater than expected: Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 120 ‑ 121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [64].
Whilst I am satisfied that the defendants did request the plaintiff to come to the assistance of Kuda, I am not satisfied that the defendants caused or contributed to Kuda's suffering the bout of colic or a foreseeable risk of injury to the plaintiff.
I am satisfied that Kuda's suffering of colic was unrelated to any conduct on the part of the defendants.
In the circumstances I find that the defendants are not liable to the plaintiff.
Further, the plaintiff is presumed to have been aware of the obvious risk created by Kuda’s condition unless the plaintiff proves on the balance of probabilities that he was not aware of the risk:(see s 5N CLA).
A person does not owe a duty of care to another to warn of an obvious risk: s 5O CLA. The plaintiff is deemed to be aware of the risk if he was aware of the type or kind of risk, even if he is not aware of the precise nature, extent or manner of occurrence of the risk.
I am satisfied and find that the plaintiff was aware of the risk posed by Kuda when he moved close to her and attempted to assist her to stand.
I am satisfied on the evidence that in approaching Kuda on the day to assist Alisha Perkins to get Kuda to stand, the plaintiff was aware of the risk posed by Kuda. It follows that the defendants did not owe the plaintiff a duty of care in respect of the risk created by Kuda's condition.
I am satisfied that the fact that the horse was thrashing its legs and struggling to stand, it would have been glaringly obvious to a reasonable person that anyone going in the vicinity of Kuda risked being injured by her, that is to say, being struck by her in some way.
I am satisfied that the risk that the horse might fall on a person who was then attempting to assist it to stand, by positioning oneself at the rear hindquarter of the horse and trying to lift, was an obvious risk.
I do not consider that the defendants were required to safeguard the plaintiff from him undertaking such a dangerous method of attempting to get the horse to its feet. The danger of such action was readily apparent.

Occupiers' Liability Act 1985 (WA) (OLA)

The plaintiff further alleges the defendants are liable in respect of the injuries suffered by him insofar as it is alleged that his injury occurred as a result of an activity being conducted on the defendants' premises. The plaintiff relies upon s 5(1) of the OLA and the defendants' duties as occupiers at common law.
It is not disputed that the defendants were the 'occupiers of premises' within the meaning of the OLA and at common law.
Section 5(1) of the OLA provides that an occupier of premises is required to show towards a person entering on the premises such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises, and for which the occupier is by law responsible: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, 488; Department of Housing and Works v Smith [2010] [No 2] WASCA 25 [55].
At common law, an occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises. See Australian Safeway Stores Pty Ltd v Zaluzna (488) (Mason, Wilson, Deane & Dawson JJ); Phillis v Daly (1988) 15 NSWLR 65, 76 (McHugh JA); Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [17] (Gleeson CJ), [102] (Hayne J); Shire of Manjimup v Cheetham [2010] WASCA 225 [11], [67].
Whether an occupier owes an entrant concurrent duties at common law and under s 5 of the OLA is yet to be finally determined by the Court of Appeal in this State: Department of Housing and Works v Smith [63] however the matter does not arise for consideration in this case. The plaintiff pleads the same duty; namely to warn of the danger created by Kuda's condition and to secure the plaintiff from such danger. Accordingly, no different outcome would result.
The question is whether the defendants, mindful of Kuda's condition on the day should have warned the plaintiff of the risk posed by Kuda when he was asked to help.
I am satisfied and find that no warning was necessary to safeguard the plaintiff. The risk created was so obvious that a warning was not required. I am satisfied that in such circumstances the defendants were no better equipped than the plaintiff to deal with Kuda.
I am satisfied that the defendants are not liable to the plaintiff and that the plaintiff's claim should be dismissed and so find.

(d) Contributory negligence

In the event that I am wrong about the absence of a duty of care, breach, causation and obvious risk, it is necessary that I deal with a defence of contributory negligence.
In determining whether the plaintiff contributed to his risk of injury it is necessary to have regard to what the plaintiff knew or ought to have known at the time and what a reasonable person in his position would have done: s 5K CLA.
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 494, the High Court said that in apportioning responsibility, the following approach should be taken:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man Pennington v Norris(1956) 96 CLR10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36, 42 – 49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstance of the accident which must be subjected to a comparative examination. The significant of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
The risk of harm by going into close proximity of the horse in a distressed state was a real and substantial risk that was not insignificant. It was such that a reasonable person in the same position of the plaintiff would have appreciated and understood the significant harm that could be suffered.
I am satisfied that contributory negligence has been established against the plaintiff.
It was such that a reasonable person in the same position of the plaintiff would have appreciated and understood the significant harm that could be suffered. I am satisfied that contributory negligence has been established against the plaintiff.
I consider that a just and equitable apportion of responsibility between the parties would require any damages assessed to be reduced to the extent that it may be said that the plaintiff accepted the risk in the circumstances where he was coming to the aid of the defendants' daughter Alisha and the dying Kuda.
I am satisfied that whilst he accepted the risk of suffering injury from a horse that was then behaving in an unpredictable and dangerous manner, it was a calculated risk by him to save the horse.
Whether the defendants requested the plaintiff to assist with Kuda or not, it was apparent that when he arrived that he would do so. Even if the defendants did not breach their duty to the plaintiff and warned him of the danger posed by Kuda, I am satisfied that there is a high probability the plaintiff would not have heeded the warning in the circumstances he then faced.
Whilst Kuda was in a seemingly critical condition, I am not satisfied that the circumstances were such that called for the plaintiff to act as he did. The plaintiff was aware that the vet had been contacted earlier and was to attend and treat Kuda. The prudent course when confronted with Kuda in such a distressed state would have been to wait for the vet and otherwise offer comfort and assurance to Alisha.
Notwithstanding that the plaintiff would have readily appreciated that a large animal, in a distressed state and rolling unpredictably was capable of causing significant harm to those within its vicinity, the plaintiff took a chance that he could safely carry out the manoeuvre and get Kuda to her feet.
I find that the plaintiff was largely the author of his own misfortune and as such, must bear the brunt of the responsibility for the consequences. In the circumstances as I find them to be, I assess the plaintiff's contribution to his injury at 80%.