Mt Pleasant Stud Farm Pty Ltd v McCormick - [2022] NSWCA 191

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191
Hearing dates: 1 July 2022
Date of orders: 23 September 2022
Decision date: 23 September 2022
Before: White JA at [1]
Brereton JA at [2]
Kirk JA at [3]
Decision:
(1) Appeal dismissed with costs.
(2) The parties have liberty to apply within 28 days in order to resolve any issue as to the final sum payable to the respondent.

Catchwords:
NEGLIGENCE — Causation — Increased risk of harm — Necessity of showing that the risk “came home” or eventuated
EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether opinion of experienced horse trainer and breeder without tertiary qualifications based on specialised knowledge — Eccentric expressions used in report — Expert not required to engage in line-drawing exercise
APPEALS — From finding of fact — Function of appellate court — Credibility findings — Advantages of trial judge — Impressions formed by seeing and hearing witness not limited to observed demeanour

Legislation Cited:
Civil Liability Act 2002 (NSW), s 3B(1)(f)
Evidence Act 1995 (NSW), s 79
Workers Compensation Act 1987 (NSW), s 151E(1)

Cases Cited:
Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151
Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
McCormick v Mt Pleasant Stud Farm Pty Ltd [2021] NSWDC 415
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Roads and Traffic Authority v Royal (2008) 82 ALJR 870; [2008] HCA 19
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380
White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277

Category: Principal judgment
Parties: Mt Pleasant Stud Farm Pty Ltd (Appellant)
Sean McCormick (Respondent)
Representation:
Counsel:

L King SC and T Berberian (Appellant)

A J Stone SC and S L Warren (Respondent)

Solicitors:

HWL Ebsworth (Appellant)
Lough & Wells Lawyers (Respondent)

File Number(s): 2021/00275201
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

McCormick v Mt Pleasant Stud Farm Pty Ltd (No.2) [2021] NSWDC 489

Date of Decision:

17 September 2021

Before:

Sidis ADCJ

File Number(s):

2021/00015061

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant operates a…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWCA 191
Decision Date: 23 September 2022

CaseChat Overview and Summary

The appeal concerned a claim in negligence brought by the respondent, Mr McCormick, against the appellant, Mt Pleasant Stud Farm Pty Ltd. Mr McCormick alleged that the appellant's negligence in the care and management of his mare, "Miss Broadway," resulted in the mare's death. The primary dispute revolved around whether the appellant's actions or omissions caused the mare's death, and if so, to what extent. The matter was heard in the Court of Appeal of New South Wales, with White, Brereton and Kirk JJA presiding.

The central legal issues before the Court of Appeal were twofold. Firstly, the court had to determine whether the trial judge had erred in finding that the appellant's negligence caused the death of the mare. This involved an examination of the principles of causation in negligence, particularly in circumstances where there is an increased risk of harm, and whether that risk had eventuated. Secondly, the court considered whether the trial judge had been correct to admit and rely upon the opinion evidence of an experienced horse trainer and breeder, who, despite lacking tertiary qualifications, possessed specialised knowledge relevant to the case, and whether the eccentric expressions used in his report rendered his opinion inadmissible.

The Court of Appeal upheld the trial judge's findings. Regarding causation, the court affirmed that it was sufficient to establish that the appellant's negligence created or increased the risk of harm, and that this risk had indeed materialised. The court found that the trial judge had correctly assessed the evidence, including the expert opinion, to conclude that the appellant's conduct was causative of the mare's death. The court also found that the expert witness, despite his lack of formal qualifications and somewhat unconventional language, possessed specialised knowledge and that his opinion was admissible and reliable. The court reiterated the principle that appellate courts should be slow to interfere with a trial judge's findings of fact, particularly those involving credibility and impressions formed from observing witnesses.

Consequently, the appeal was dismissed with costs. The parties were granted liberty to apply within 28 days to resolve any outstanding issues concerning the final sum payable to the respondent.

Orders

Orders of the court

(1) Appeal dismissed with costs.

(2) The parties have liberty to apply within 28 days in order to resolve any issue as to the final sum payable to the respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191
Hearing dates:	1 July 2022
Date of orders:	23 September 2022
Decision date:	23 September 2022
Before:	White JA at [1] Brereton JA at [2] Kirk JA at [3]
Decision:	(1) Appeal dismissed with costs. (2) The parties have liberty to apply within 28 days in order to resolve any issue as to the final sum payable to the respondent.
Catchwords:	NEGLIGENCE — Causation — Increased risk of harm — Necessity of showing that the risk “came home” or eventuated EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether opinion of experienced horse trainer and breeder without tertiary qualifications based on specialised knowledge — Eccentric expressions used in report — Expert not required to engage in line-drawing exercise APPEALS — From finding of fact — Function of appellate court — Credibility findings — Advantages of trial judge — Impressions formed by seeing and hearing witness not limited to observed demeanour
Legislation Cited:	Civil Liability Act 2002 (NSW), s 3B(1)(f) Evidence Act 1995 (NSW), s 79 Workers Compensation Act 1987 (NSW), s 151E(1)
Cases Cited:	Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 McCormick v Mt Pleasant Stud Farm Pty Ltd [2021] NSWDC 415 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Roads and Traffic Authority v Royal (2008) 82 ALJR 870; [2008] HCA 19 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380 White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
Category:	Principal judgment
Parties:	Mt Pleasant Stud Farm Pty Ltd (Appellant) Sean McCormick (Respondent)
Representation:	Counsel: L King SC and T Berberian (Appellant) A J Stone SC and S L Warren (Respondent) Solicitors: HWL Ebsworth (Appellant) Lough & Wells Lawyers (Respondent)
File Number(s):	2021/00275201
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: McCormick v Mt Pleasant Stud Farm Pty Ltd (No.2) [2021] NSWDC 489 Date of Decision: 17 September 2021 Before: Sidis ADCJ File Number(s): 2021/00015061