Lloyd v Ohlstein & Ors

[2007] HCATrans 262

Replacement Transcript

[2007] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S29 of 2007

B e t w e e n -

ELIZABETH LLOYD AND TIMOTHY LLOYD TRADING AS OTFORD FARM TRAIL RIDES

Applicant

and

TALI OHLSTEIN BY HER TUTOR ADAM OHLSTEIN

First Respondent

JARED OHLSTEIN BY HIS TUTOR ADAM OHLSTEIN

Second Respondent

VANESSA DUNCAN

Third Respondent

ADAM OHLSTEIN

Fourth Respondent

-

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 25 MAY 2007, AT 11.25 AM

Copyright in the High Court of Australia

__________________

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR A.R. DAVIS, for the applicants.  (instructed by Curwoods Lawyers)

MR P.W. NEIL, SC:   May it please the Court, I appear with my learned friend, MR S.M. KETTLE, for the respondents.  (instructed by Maurice Blackburn Cashman)

GLEESON CJ:   Yes, Mr Campbell.

MR CAMPBELL:   Your Honours, there are three points in this case which we wish to ventilate.  The first point goes to the nature, scope and content of a duty of care owed in the circumstances of the case.  The second goes to questions relating to breach that were determined against us in the Court of Appeal.  The third goes to the manner in which those questions were resolved, having regard to the fact that the expert evidence relied upon by the respondents at the trial was rejected by the trial judge.   His decision in that regard was held not to have been wrong.

GLEESON CJ:   Mr Campbell, I am afraid I am not very clear on the stage the litigation has reached, if I can use that expression.

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   There are some unresolved issues.

MR CAMPBELL:   There are, your Honour.  Your Honours will see from what is in the papers that there are a number of plaintiffs who brought their action in the one statement of claim.  Because the principal plaintiff, who is the first respondent, Tali Ohlstein, was a child of very tender years, an order was made that the case proceed to trial for the determination of a separate question, that question being the question of liability, may I put it this way, your Honours, generally, and that question of liability generally involved a number of separate sub-questions. 

The primary sub-question of course was whether, in the circumstances of the case and in the circumstances in which the first respondent received her injuries, the applicants had been negligent.  The other questions which have never been resolved, your Honours, because the trial judge found it unnecessary to do so having determined the question of negligence in favour of the applicants, go to questions about whether the applicants were entitled to an indemnity pursuant to a contract from the third respondent or whether that contract ought to be set aside under the contracts review legislation in New South Wales. 

The matter having gone on appeal and the Court of Appeal by majority having found in favour of the respondents, the case has been remitted so that the remaining liability questions can be resolved.  That basically boils down to those two questions that I have outlined, your Honours.  I appreciate that it is said against us that because there are these unresolved liability problems, this case may not be a suitable one for a grant of special leave. 

May we say about that at the outset, your Honours, as we have put in our summary of argument, that we submit that is not so because the central question on liability is that question of negligence.  If special leave were granted and our appeal was successful, that would be the complete end of the litigation and the case could proceed no further.  The way things presently stand, your Honours, if we go back for the determination of these remaining questions on liability, the question of negligence, the central question going to liability, has been decided against us once and for all.

HEYDON J:   The point would be you could still seek leave to appeal at that stage but after possibly time had been unnecessarily taken up on a cross‑claim and assessment of liability of the other plaintiffs and damages.

MR CAMPBELL:   Yes, your Honour, that is so.  As I have said, if the negligence point on appeal was decided in our favour for one of the grounds we seek to advance, then the whole litigation would finally be over without any need for any further litigation.  In that way, although only one of the separate questions has been resolved so far, we submit that this case is in fact at least a suitable candidate for consideration by the Court as to whether special leave should be granted.

GLEESON CJ:   Is one of the outstanding unresolved questions, assuming this one against you, the question of the effect of the contract pursuant to which this activity took place?

MR CAMPBELL:   Yes, your Honour, it is.  May I say about that, perhaps against myself, that we never argued that the principal plaintiff, the first respondent, could be a party to that contract under the law of New South Wales.  Our argument about the contract and the argument we seek to present here in support of our argument for special leave and on appeal if special leave is granted, is that the contract informs the nature, scope and content of the duty of care owed as providing context, one of the important circumstances relevant to determining the duty, having regard to the fact that the first respondent was admitted as an accompanied child ‑ ‑ ‑

GLEESON CJ:   This is what is puzzling me procedurally, if you like.  You are not suggesting, are you, that the issue of negligence was determined in advance of a determination of the duty of care?

MR CAMPBELL:   That is the very thing that was determined, your Honour, and it was determined in the Court of Appeal by majority on the basis that the circumstances of the admission of the first respondent to the premises, that is to say, the fact she was accompanied by her parent and the fact that her parent had entered into a certain type of contract, were entirely irrelevant to the nature of the duty owed to the first respondent.  Indeed, may I say with respect to your Honour the Chief Justice, that is our principal complaint.

GLEESON CJ:   What do you say was the duty?

MR CAMPBELL:   We say the duty, your Honour, was a duty which was conditioned.  It was a duty to take reasonable care of course but, more precisely, if one looks at its content, the content of the duty was conditioned by the fact that Tali was accompanied by her parent and that adequate risk warnings had been given to the parent in relation to the nature of the activity that would be engaged upon.

GLEESON CJ:   What is the consequence of that for the child?

MR CAMPBELL:   The consequence for the child is that one does not extend any special considerations such as arises out of the allurement type cases, but one treats the child as an ordinary member of the community who has admitted to the activity on the basis of those warnings, your Honour.

GLEESON CJ:   Yes, but what is the consequence of that?  From one point of view, this is a case about whether it was negligent not to have the horse on a lead.

MR CAMPBELL:   Yes, your Honour, that is from one point of view.  The consequence of that is, your Honour, that it was not negligent to not use a lead, if I can put it that way, because a lead was only necessary if some special consideration was given to the circumstance of the first respondent’s tender years, if I can put it that way.  Another consequence of it ‑ ‑ ‑

GLEESON CJ:   I am sorry.  Do you mean by that that it was not negligent not to have the horse on a lead because of the terms of the contract with the plaintiff’s mother?

MR CAMPBELL:   Yes and no, your Honour.  We say it is not negligent not to have the horse on a lead for a whole host of reasons because that just was not called for in the circumstances generally.  We say, additionally, because falling from the horse, and even in the complicated manner it happened in this case, was one of the risks that was inherent in horse riding, that was something which was the subject of a risk warning to the first respondent’s mother and that that risk warning was something that should be taken into account in assessing the content of the duty, ie, “We warned that this could happen.  We’re not liable because it did.”  That is how we put it, your Honour. 

What we say about that, your Honours, is set out at application book 123, with respect, what was drawn from what your Honour the Chief Justice said in Woods v Multisport at paragraph 30 and also the reference to the other cases at paragraph 31, in particular, the decision of the Court in David Jones v Stone, drawing upon some of the things that were said by Mr Justice Devlin, as his Lordship then was in Phipps v Rochester Corporation, that the duty owed to an accompanied child is the same as the duty owed to an ordinary member of the community.

Your Honours, can I just say in any event one of two things about the circumstances of the accident and how the breach question was resolved in this case.  To get to the idea that what happened to the first respondent in particular was going to happen – and I appreciate that is a more refined test than the general test of foreseeability – 10 circumstances had to in fact occur, each one of which, your Honours, was somewhat unlikely. 

Firstly, your Honours, Hiawatha, the horse that the other little girl was riding, a well-trained and behaved horse on the evidence before the Court, had a bite out at Patch, the first respondent’s horse – it was also trained and well-behaved, your Honours.  The child, who was travelling well, it has been said in the evidence, for a beginner, had to slip from the saddle, the horse had to bolt, she had to then fall, her foot had to become entangled in the safety stirrup which then had to fail to detach as it was designed to do.  Her helmet had to come off because of some contact with the horse or the ground, and she had to be dragged along for some distance before the whole misfortune could have occurred.

In our submission, your Honours, although we are not asking for any finding from the Court in relation to those circumstances, looked at from that perspective, when one considers what Justice Ipp said in dissent about the fact that the probability of those things occurring was in fact low, the magnitude of the risk was not high, then, even if, contrary to the main argument we wish to put in relation to duty, something more could have been done, it was not negligent for the operators to fail to take the step of using a lead rein, particularly having regard to their obligations to the other members of the group. 

Your Honours, in particular, each member of the group in which the first respondent was riding was relatively inexperienced.  There was a group of four under one escort.  The third respondent, the first respondent’s mother, had ridden between five and 10 times, as the documents show.  Another little girl had ridden on other occasions and both Tali and Jared were on their first ride.  If one imposes a duty to use a lead rein, then one ‑ ‑ ‑

GLEESON CJ:   There cannot possibly be a duty to use a lead rein.  There is maybe a duty to take reasonable care for somebody’s safety and then there is a question whether not using a lead rein is a breach of that duty.

MR CAMPBELL:   Indeed, your Honour.  With respect, I am sorry I put it the way I have.  We say, as Justice Ipp would have found, when you look at all the other things this operator did and you properly characterise the nature of the legal duty owed, then it was not a breach of the duty of reasonable care to fail to use a lead rein in the circumstances of the case. 

We also say, your Honours, so far as the finding made by Justices Beazley and Bryson that a lead rein should have been used is concerned, at the trial that issue of course was fought out on the basis of what was essentially expert evidence which was rejected, as I have said, your Honours, and have argued in the summary of argument.  The majority of the Court of Appeal acknowledged that it was not wrong of the learned trial judge to reject the expert evidence which said a lead rein should be used from their point of view. 

We submit, in those circumstances, that it was not open to the Court of Appeal, as we have argued, to substitute its own view of common experience to say contrary to the trial judge’s finding based upon the evidence of the trial that a lead rein ought to have been used in the circumstances.  As your Honours know from our summary of argument, in putting that forward we put it forward as a matter of principle based upon what Chief Justice Latham said in Bressington v Commissioner for Railways, which we have taken out at page 122, your Honours, at line 20 to 35 of the application book.

May we say that, in addition to what Chief Justice Latham had to say in its application, we submit that this case is a matter of principle.  It was clear, we submit, that horse riding or operating a horse-riding or trail-riding facility was a matter calling for specialised knowledge.  Justice Ipp said so, your Honours, at application book 82.  It is 153 of his judgment, it is about line 13:

it is necessary to remember that horse riding is a specialised activity, even though it is an activity undertaken in this country by innumerable people, of all ages.

GLEESON CJ:   Mr Campbell, I am sorry to keep nagging away at this point and I am going to ask Mr Neil the same thing, but could you go to page 106 paragraph 214:

the Court of Appeal should allow the appeal with costs, and should determine that Tali Ohlstein’s injury was caused by negligence of the respondents in conducting their operation in the respect alleged in –

a certain particular.

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   What is it that the trial judge is going to do when the matter goes back to the trial judge, particularly in relation to this question of the contract?  I realise it is relevant to a cross-claim against somebody, but forget about that.

MR CAMPBELL:   Your Honour, we have tried to.....at application book 120.  Perhaps if I could just repeat what is there.

GLEESON CJ:   Yes.

MR CAMPBELL:   It is at paragraph 17, your Honour, it is about line 28.  Those are the four questions which have to go back, your Honour, as we understand the reasons – the pleadings as they stand between the parties and ‑ ‑ ‑

GLEESON CJ:   No, they are questions in relation to the cross-claim.

MR CAMPBELL:   Yes, your Honour, they are questions in relation to the cross-claim ‑ ‑ ‑

GLEESON CJ:   That is (a) and (b), relate only to the cross-claim, do they not?

MR CAMPBELL:   That is so, your Honour.

GLEESON CJ:   And (c) relates to a different plaintiff.

MR CAMPBELL:   Yes, your Honour, it relates to the second and third plaintiffs.

GLEESON CJ:   I see.  So there is no outstanding question of liability to be resolved in relation to this plaintiff and your client?

MR CAMPBELL:   I have made that seem difficult, your Honour.  The answer to your Honour the Chief Justice’s question is yes.  There is no outstanding question of liability between this plaintiff and my clients.

GLEESON CJ:   In particular, there is no further argument to be had about the relevance of warning signs or contracts to that issue?

MR CAMPBELL:   Yes, your Honour, that is so.

HEYDON J:   Do you argue that you have in effect had a proper hearing in relation to the warning sign and the contract as a means of defining the duty of care?  I appreciate you are not complaining about a breach of the rules of natural justice ‑ ‑ ‑

MR CAMPBELL:   No we are not, your Honour.

HEYDON J:    ‑ ‑ ‑ but intellectually have you had a satisfactory treatment below?

MR CAMPBELL:   Your Honour, the learned trial judge, as you know, said he did not have to decide those questions.  Justice Bryson looked at those questions in the Court of Appeal and decided them adversely to us.  He held that those matters, which I have laboured here today, had no relevance to the case brought by Tali.

GLEESON CJ:   So in relation to Mr Neil’s client, the case on liability has been determined by the decision of the Court of Appeal?

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   And there is an outstanding question of quantum of damages?

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   And there is the question of the cross-claim?

MR CAMPBELL:   Yes, your Honour.

GLEESON CJ:   And there is the question of the other plaintiff’s action?

MR CAMPBELL:   Yes, your Honour, that is so.

HEYDON J:   It seems to be assumed that they will win to the extent that Tali Ohlstein won on negligence because as to the little girl there is no difference, as to the mother she is parasitic, as it were, upon the negligence towards her daughter’s.

MR CAMPBELL:   Yes, your Honour.  The little boy has no claim for personal injuries, your Honour.

HEYDON J:   No, that is nervous shock.

MR CAMPBELL:   His only claim is for nervous shock, but the question about whether the other, such as they are, necessary requirements in relation to claims for nervous shock have been satisfied as also outstanding in relation to the second and third respondents.  May it please the Court.

GLEESON CJ:   Thank you, Mr Campbell.  Yes, Mr Neil.

MR NEIL:   Your Honours, as we understand it, the applicants seek to rely upon the fact that these undecided questions, which relate only to the cross‑claim, are relevant in terms of special leave because it is said against us that in some fashion they inform the content of the duty of care owed to Tali.  Now, Justice Bryson, with whom Justice Beazley agreed, dealt with that expressly.  Justice Ipp, in our respectful submission, did not deal with it.  The learned trial judge did not deal with it.

Part of our written outline goes to say we resist that proposition, but if there is anything in it, it really cannot be done, in our submission, until those contractual terms have been determined and that has not been done.  There are a number of reasons for that, but in the document of contract which ‑ ‑ ‑

GLEESON CJ:   But there is no open question about the liability.  As things stand at the moment there is no open or unresolved question concerning the liability of Mr Campbell’s client to your client.

MR NEIL:   That is our position.

GLEESON CJ:   I think that is his position too.

MR NEIL:   Well, it is now.  I must say that he was seeking to introduce, we understood, these contractual aspects as bearing on the duty of care owed to Tali under the law of tort, but it is now plain that there is no complication there.

GLEESON CJ:   Well, he would want to argue if he gets special leave that the way Justice Bryson dealt with that was erroneous.

MR NEIL:   He would, but ‑ ‑ ‑

GLEESON CJ:   But he is not suggesting that there is any presently unresolved issue between your client and his client as things have been left by the Court of Appeal in relation to liability.

MR NEIL:   We understand that, your Honour.

GLEESON CJ:   In other words, the decision of the Court of Appeal has finally and definitively decided liability in your favour.

MR NEIL:   That is our position.  So far as concerned the other plaintiffs, they are all nervous shock claims.  The only one who was present relevantly right at the scene was the little boy, Jared.  Those claims on any view are very, very minor.

GLEESON CJ:   Now, at the risk of introducing a further complication, Mr Neil, where did any of the judges below deal with the question of causation?

MR NEIL:   Well, we submit that they all did in this way.  Could I, by way of example, take your Honours please to application book 69, to paragraph 115 just above 50.  This is in the reasons of Justice Ipp.  The paragraph there his Honour himself concluded:

the horse would not have been able to gallop away and Tali would not have been dragged along the ground.

GLEESON CJ:   Yes, but what was going to happen then?  When horse A bit horse B on the rump and horse B responded as it did by galloping away, the accident happened.  But suppose, as the majority held, horse B should have been on a lead, what was horse B going to do then when it got bitten on the rump?

MR NEIL:   Well, the evidence of the trail leader, who was right there with the young child at the time, was that had she had a lead rein attached to Patch, the horse on which Tali was riding, nothing would have happened.  It would have simply remained there.  There would have been a little movement and that was it.  She said it would not have got five metres.

GLEESON CJ:   It would not have run away, but would it have bucked?

MR NEIL:   Well, there is no evidence on that, but her evidence was to the effect, your Honour, that she was highly trained, she was in a position, had that horse been on a lead rein and not totally uncontrolled, to keep it right by her side.  There seemed to be, with respect, at the trial no issue whatever about that.

GLEESON CJ:   Was part of your complaint that the first horse should also have been on a lead?

MR NEIL:   Our action was that each child’s horse should have been on a lead rein.  I mean, the little boy had earlier fallen off.

GLEESON CJ:   I wondered if part of your complaint was that the biting would not have occurred at all if all the children’s horses had been on a lead.

MR NEIL:   No, we could not put that because the evidence was that the kind of foreseeable but unusual event that occurred was one of a myriad of events that could spook a horse at any time on any trail any day.  So the precise mechanism, in our submission, was not the determinate.  The determinate was that if a horse got spooked with a little girl on, it was highly likely to bolt and the evidence of everyone – Mr Lloyd included, and the two trail leaders – was that if it had been on a lead rein, it could not have got away.  It would have stayed with the trail leader. 

There was some cross-examination of Mrs Pearson-Adams, who did not find favour with the trial judge, and I think of the other experts to the effect that even if a child is walking along on a placid horse and everything is going well, the child can slip off and that was said to be so.  But our case was, in practical terms, the chance of a child slipping off was a very remote prospect because the child had been riding well.  If the horse bolted the chance of the child being thrown off and dragged was extremely high.  That is how we put the case and that is the way the evidence fell. 

Indeed, what happened was the mother’s instructions as to her recollection of the circumstances of the accident was somewhat different from the trail leaders.  Justice Grove preferred the trail leader’s.  We, anticipating that that may well be so, expressly submitted to him at the trial that on their evidence Tali Ohlstein was entitled to a finding of negligence.  So we ran it on the evidence against us in a sense because, in our submission, it was very clear and the evidence was only one way, that had that horse been on a lead nothing would have occurred; there certainly would not have been no injury of the sort that happened.

So, your Honour, our submission is that it is put against us that the Court of Appeal really supplanted the applicants’ experts and for the reasons in our written outline we submit that is plainly not so.  As Justice Bryson points out and, we submit, correctly, the applicants’ experts did not deal – there was only one, Mrs Smyth – she did not deal with particular (t), which was that the horse should have been on a lead, other than in a mistaken way.  It is set out in the judgment I think by Justice Ipp, she mistakenly understood that the reason the horse was not on a lead was that the mother did not want it to be on a lead. 

Now, there was no such evidence.  Justice Bryson expressly deals with that.  He pointed out that you could accept basically everything that the expert, Mrs Smyth, for the applicants had said, but she simply failed to deal with particular (t).  Now, in those circumstances, what Justice Bryson was saying, in our respectful submission, was akin to this.  The trial judge also, with the utmost respect, did not deal in terms with particular (t).  He did not deal with the evidence that bore on it.  He did not deal with what was in effect the unchallenged evidence on this particular point of Mrs Smyth and Ms Bennit, who were the experts for the child.  As Justice Bryson pointed out, although there may have been a plethora of matters particularised, although the thing was a bit of a hodgepodge, particular (t), in its terms and on the evidence, was perfectly plain.  Our strong submission to the Court of Appeal, and we put to this Court respectfully, is that there is only one body of expert evidence on particular (t) and that was our body.

Now, it is the case that Justice Bryson, with whom Justice Beazley agreed, has said that perhaps you do not need expert evidence on that point.  Perhaps for that type of matter a jury, he says, would be able to work that out, that if you have a young beginner child who has never been on a trail, who is on a horse, something could happen which could cause the horse to bolt.  If the only evidence is that had that horse been on a lead then that would not have happened, you may not need expert evidence, Justice Bryson said, and no one seems to suggest to the contrary.  Nevertheless, it was appropriate for there to be expert evidence, and there was from two experts whose evidence, with respect, was not dealt with by the trial judge.  We see that as an extremely important part of the rationale of the process of reasoning of Justice Bryson.

So when one reaches that point, we say the debate about the preference for one expert over another is not really relevant, is not really germane to the consideration of the fundamental question.  Now, what we pleaded was that there was a failure to take want of reasonable care, and one of the matters we relied on – and we relied on it very substantially at the trial – was this failure to have this young child led.  It is right that there were many particulars, but at the trial it came down in terms of most of the argument to two particulars; particular (o), which we lost at trial and lost on appeal in the Court of Appeal and particular (t), which we succeeded on in the Court of Appeal. 

Really, your Honours, in our submission, it is fundamental; this case is a matter of fact.  It is a matter of fact on an issue, with respect, that the learned trial judge did not deal with and, with respect, Justice Ipp did not deal with.  We put in the written outline that in any event, so far as special leave is concerned, there is no question of public interest.  All this is superseded by the civil liability legislation.  In New South Wales section 5M has a whole provision about warnings in respect of children, can be given to parents.  They do not have to be in writing, they do not have to be in any particular form, and they will take away the risk of liability to the proprietor in respect of a child, an accompanied child. 

So our friends say this will affect adults.  We say adults in any event, leaving aside the legislation, are subject to the common law in relation to warning signs and signing disclaimer contracts.  So that is a totally different position.  This case on its facts is fairly unusual.  On its facts it is not the sort of thing that is likely to be coming up frequently at all.  It is put against us that the decision of the Court of Appeal means that every trail ride will have to go in some way to some unreasonable expense and give independent individual assessments to children and adults. 

Leaving adults aside, if I may, for children that is precisely what they did here anyway, and Justice Ipp expressly deals with it.  Each child, although in a group setting, was individually assessed and, indeed, in Justice Ipp’s reasons he pointed out that each of these children in fact was given a second lesson to make sure that they understood the instructions.

HEYDON J:   Because they were thought not to be concentrating at the time of the first lesson.

MR NEIL:   Well, the mother raised a question as to whether the little boy, your Honour, had – she thought he may not have fully cottoned on to what had been said.  So I think it was Ms Warriner went and spoke independently to him and went through it all again with him, and Mrs Caruana went through it all again with Tali before they set off on the trail.  So what Otford Farm’s practice was, in terms of individual assessment of children, was exactly that, and that is what they did. 

So far as the suggested expense and difficulty of using a lead rein is concerned, well, frankly, there was absolutely no evidence given by Mr Lloyd, the effective manager of Otford Farm, the trail ride establishment, on that subject.  He was not asked, the trail leaders were not asked.  What he did say was that he told the young trail leader to take a lead rein.  There was one there that she had that was available to use.  He

pointed out that you do not even need a lead rein.  You can lead a horse with its own reins.

Justice Bryson expressly deals with the fact that there was no evidence whatever of any difficulty, expense, inconvenience or anything else, to prevent the use of a lead rein.  So we submit, with respect, that that is something of a red herring.  Those are the submissions that we have, may it please the Court.

GLEESON CJ:   Thank you, Mr Neil.  Yes, Mr Campbell.

MR CAMPBELL:   Your Honours, the effect of the evidence of Ms Warriner concerning the lead rein, is set out in the judgment of Justice Ipp at application book 69 paragraph 114.  That is paragraph in his Honour’s decision.  It is about line 35 to line 45.  In particular, she agreed there would be less chance of the horse racing away.

The evidence, your Honours, did not deal with the issue which your Honour the Chief Justice asked about in argument with my learned friend about whether the horse would buck or otherwise seek to get away from the restraint provided by the lead.  May I say this, your Honours.  As I have said already in-chief, the simple fact of the matter was that in this group under Ms Warriner’s care there were four riders of very limited ability or very limited experience in any event.  If one looks at the question of negligence perspectively, as one is required to do, then you could not say the first respondent should be on a lead and also say that the other three participants in that group should not be.  Now, if one should be on a lead all ‑ ‑ ‑

GLEESON CJ:   I get that.  You mean there were not enough leads?

MR CAMPBELL:   Not that there were not enough leads, your Honour, but the impracticality of one trail escort effectively leading four horses.

GLEESON CJ:   That just means there should not have been a trail ride.

MR CAMPBELL:   Well, that would not be reasonable, we would submit, your Honour, that there should not be a trail ride, reasonableness being the ‑ ‑ ‑

GLEESON CJ:   I mean a trail ride with those four at the one time, if they should have been on leads.

MR CAMPBELL:   Well, that is the point we make, your Honour, the reasonableness being the touchstone of negligence.  You would then get back to the situation which was thoroughly rejected by the trial judge and

by all the members of the Court of Appeal that people should not be allowed to go on a trail ride until they were properly schooled in the art of horse riding.  In our submission, that just illustrates the point that we have been trying to make in relation to the expert evidence.  Can I simply finish by saying ‑ ‑ ‑

GLEESON CJ:   Are there any guidelines or protocols published, for example, by the Equestrian Federation?

MR CAMPBELL:   The evidence was not at the time of this accident, your Honour, although there has been plenty since, some of which were in evidence and is attached to one of the expert reports and set out in very plain English all the various risks involving horse riding apart from other matters.

GLEESON CJ:   Do they deal with the question of when you should have a lead on a horse?

MR CAMPBELL:   Not expressly.  No, your Honour, is the answer to that question.  Could I just finally say that at page 89, your Honours, about line 25, Justice Bryson said:

The means of response available were simple and obvious; the leader could have led the beginner rider –

and he adds this, or interpolates this –

or several of them, while riding herself.

Now, we submit that that finding of fact, your Honours, just was not open to the Court of Appeal on the evidence, particularly when there was no evidence available at trial and there was, as I have said – I am sorry, your Honours, I have lost my train of thought – but when the expert evidence was rejected.  May it please the Court.

GLEESON CJ:   Thank you, Mr Campbell.  In this matter there will be a grant of special leave to appeal.

MR CAMPBELL:   May it please the Court.

AT 2.57 PM THE MATTER WAS CONCLUDED