Oates v BUTTERLY - [2000] WADC 80

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: OATES -v- BUTTERLY & ANOR [2000] WADC 80

CORAM: NISBET DCJ

HEARD: 20-21 MARCH 2000

DELIVERED : 31 MARCH 2000

FILE NO/S: CIV 65 of 1999

BETWEEN: MARIUS EVAN OATES
Plaintiff
AND
JOHN LIONEL BUTTERLY
JUDITH MAREE BUTTERLY
Defendants

Catchwords:

Occupiers' Liability Act 1985 - Visitor to caravan park kicked by pony - Whether claim properly within s5(1) of the Act - "anything done or omitted to be done on the premises" - Whether Act preserves distinction between "occupancy duty" and "activity duty" - Discussion of principles - No claim in the alternative in negligence.

Legislation:

The Occupiers' Liability Act 1985

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr T Cullity
Defendants: Mr P Walton

Solicitors:

Plaintiff: Trewin Norman & Co
Defendants: Jackson McDonald

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

Bradley & Ors v Wallaces Ltd [1913] 3 KB 629
Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119, 11 March 1994
Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139
Wyong Shire Council v Shirt (1980) 29 ALR 217

Case(s) also cited:

Nil

NISBET DCJ: On 25 November 1997 the plaintiff and his wife, recently retired, arrived in Esperance with their caravan having shortly before commenced a 'round Australia' tour. In Esperance they booked in at The Bushlands Holiday Village, a caravan park comprising some 20 acres. The defendants were the proprietors of the park.
At the park the defendants kept a small pony named Ned. During the day Ned was tethered by a lead of some six metres in length according to the defendants, a little longer perhaps according to the plaintiff, and the place of his tethering was changed or rotated through the park in an informal way, Ned being able to graze to the end of his tether. At night Ned was taken to a yard behind a shed. Mrs Butterly explained that the dominant purpose for Ned's acquisition some months before November of 1997 was because she had always wanted a pony, she thought it would be an attraction to the visitors to the caravan park, particularly the children and, as an ancillary benefit, he would keep the grass down by his grazing. It was envisaged at the time of his purchase that a pony cart would be acquired and that Ned would be able to give children rides around the park but this did not eventuate.
The plaintiff certainly noticed Ned shortly after his arrival but the impression I gained was that he paid no particular attention to the pony.
The following day, 26 November 1997, the plaintiff and his wife went out in the morning and returned for lunch to their caravan. Upon their return the plaintiff said he didn't see the pony and after lunch went out to check to see that his annexe had been correctly erected. He thought it required levelling. Inspecting the annexe and then taking a few steps back to check its line he stopped to face his caravan and annexe. During his evidence-in-chief he described walking backwards away from his caravan and annexe but it was put to him in cross‑examination and he agreed that he was walking away from the annexe and looking ahead, that is I understood that he had his back to the annexe and then turned to view it. Either way he says he didn't see the pony. Anyway, as he stood looking at his annexe he said he felt something like a 240 volt shock to his left calf which knocked him forward causing him to lose his balance and fall to the ground. On the ground he turned and he saw the pony kicking out with its rear legs two or three times. He called to his wife who came and rendered him some assistance. Mrs Oates testified that she heard her husband shout out for help and that he said that the "bloody pony kicked me". She then said that she saw the pony going away from her husband while he was still on the ground.
The plaintiff said that after his wife had assisted him to his feet he went to the caravan park office to report the incident to the owner. He told Mr Butterly what had happened and asked for ice. He said no apology was forthcoming from Mr Butterly who told him that the pony belonged to his daughter. Nevertheless the plaintiff said Mr Butterly went with him to his caravan where the pony was tethered to some bushes, the owner leading the pony away and taking him back to his residence.
Mr Butterly for his part said that the plaintiff certainly complained to him that he had been kicked by the pony although in looking at the plaintiff's leg he couldn't see any evidence of injury at that stage. Mr Butterly said that the plaintiff told him that he had been patting the horse and as he walked away the horse kicked him. Mr Butterly provided the plaintiff with ice a couple of times that day at the plaintiff's request.
The plaintiff testified that his whole leg felt shocking. A large bruise appeared and there was considerable swelling in consequence of which he went to a doctor the next day. He was in great pain. I shall revert to a description of the plaintiff's injuries and treatment later in these reasons.
The defendants testified that they had never previously encountered the pony kicking anyone. Indeed their observations of the pony were such that they thought of him as a quiet, gentle creature who could be fed by small children from the hand with carrots supplied by the defendants expressly for this purpose. Further, another frequent visitor to the park would lay down with the animal resting his head on the pony's belly.
Whilst there is some little doubt occasioned by the evidence of Dr Carroll who wondered how the deepest of the three muscles of the calf could be damaged by a kick from a horse absent any damage to the overlying muscles, having seen and heard the plaintiff give evidence I am satisfied on the balance of probabilities that, whilst certain aspects of his evidence were exaggerated, he was kicked by the pony in his left calf. I think he was gilding the lily when he said that when he turned on the ground the horse was still bucking or lashing out with its hind legs, but that is a matter of no great moment. As to whether the plaintiff had not seen the horse before he was kicked or whether he had been patting it before he was kicked, having seen Mr Butterly giving evidence in an honest and straightforward fashion I have no doubt but that the plaintiff told him that he had been patting the horse before turning to leave it and been kicked when he turned around. I suspect that the plaintiff has reinvented the manner of him being kicked by the horse in order to bolster his claim, but in the end result I doubt this makes much difference to the determination of the issue of liability.
The plaintiff brought his claim for damages pursuant to the provisions of the Occupiers' Liability Act 1985. There is no claim in the alternative for damages for negligence. Relevantly he pleaded his case as follows:
"3.The defendants were at all material times the occupiers of the premises within the meaning of section 2 of the Occupiers' Liability Act 1995 (sic) ("the Act").
4.On the 26th November 1997 the plaintiff while staying at the premises was kicked to the leg by a pony belonging to the defendants ("the accident").
5.The accident was caused by the failure of the defendants and their servants or agents for whom the defendants are vicariously liable to take such care in all the circumstances was reasonable (sic) to see that the plaintiff did not suffer injury or damage pursuant to the Act.
Particulars of the defendants' negligence
The defendants ought to have known that the pony had a propensity to kick if approached from the rear without warning and were negligent in:
(a)allowing or permitting the pony to be on the premises;
(b)failing to confine and/or alternatively control the pony properly or at all;
(c)failing to ensure that the pony was at all material times in the care of a person who was able to properly manage and control the pony;
(d)failing to warn the plaintiff of the presence of the pony."
During the course of his opening I asked counsel for the plaintiff how the claim was brought within the provisions of the Occupiers' Liability Act having regard to the fact that the damage to the plaintiff was said to have been occasioned by the pony and I was informed that the plaintiff's case was so framed as to come within s5(1) of the Act where it provides that:
"Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises 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 shall, …. be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger" (my emphasis).
During the course of his closing submissions counsel for the plaintiff sought to have the words "or as a result of their negligence" added to the end of para 5 of the statement of claim after the word "Act". This was opposed by the defendants and I refused to permit such an amendment at that late stage of the proceedings because of the potential prejudice such an amendment may have caused them.
These circumstances give rise to a very interesting problem. In Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139 at 146 his Honour the Chief Justice of Western Australia said:
"The Western Australian Occupiers' Liability Act is based on the Occupiers' Liability Act 1957 (UK) and the Occupiers' Liability (Scotland) Act 1960."
This genesis of the Western Australian Act was also traced by Mr Peter Handford in "Occupiers' Liability Reform in Western Australia - and Elsewhere" (1987) 17 UWALR 182.
Section 1(1) of the English Act makes provision in the same way as the Western Australian Act already noted in that it purports to " … regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them ..". It should be noted that the Victorian Act adds "in relation to the state of the premises", while South Australia confines liability to injury "attributable to the dangerous state or condition of the premises". Professor Fleming notes at p507 of his 9th edition in a note to the provision in the English legislation cited above that:
"Even so, a majority of commentators contend that activities are excluded: eg Winfield and Jolowicz 208; Clerk and Lindsel para 10-3 report the English practice of ignoring the Act. Contra Salmond and Heuston 11.3."
The discussion in Clerk and Lindsell on Torts 17th ed at 10-03 is very instructive:
" 'Occupancy Duty' and 'Activity Duty'. The principal purpose of the Act was to remove the fine distinction between invitees and licensees which at common law determine the extent of an occupier's duty in a given case. Now, this distinction was only of importance in relation to liability for dangers due to the state of the premises, and therefore with what have been described as 'occupancy duties'. In respect of dangers due to activities carried out, on the premises - such as shooting or driving vehicles - the distinction was irrelevant. Because of this, some writers have suggested that the scope of the Act is limited to the general idea of occupancy duties. Although this has been doubted, on the basis of the provision in s1(1) that the rules in the Act 'shall have effect in place of the rules of the common law, to regulate the duty to which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them', it is suggested that it is the better view; if A's activity hurts B the regime should be the same whether or not B happens to be on A's land. In any case it seems that there will be little, if any, practical difference between a plaintiff's remedy under the Act for breach of the common duty of care and his remedy at common law anyway. The issue in each case will be one of fact: has the duty to take reasonable care been broken? In practice, the trend seems to be to ignore the Act when suing an occupier for breach of his 'activity duty'. Indeed it is sometimes ignored in favour of the common law even in clear 'occupancy duty' cases."
The authors suggest that the terminology and distinction between "occupancy duty" and "activity duty" may have originated from the article by Professor Newark entitled "Twine v Bean's Express Limited" (1954) 17 MLR 102 especially at 109 et seq. At p109 Professor Newark wrote:
"The reason for the differentiation between acts of commission and omission is that two distinct categories of negligence are involved. An occupier of premises as regards persons coming on the premises owes, or may owe, two distinct duties. One duty is owed as occupier of the premises in question and relates to the condition of the premises: we can call this the Occupancy Duty. The other duty is owed whenever the occupier is engaged in carrying on some activity on the premises: we can call this the Activity Duty. The Occupancy Duty is essentially a positive duty requiring the occupier to make safe or to warn, and the breach of the Occupancy Duty is therefore always in omission. The Activity Duty obviously arises only when the occupier is carrying on the activity and consequently necessarily involves an act of commission."
What these learned authors are I think addressing themselves to is the issue of whether or not the duty of care arises by reason of the status of the defendant as occupier of the premises in question or whether the duty arises by reason of a general obligation owed by whoever is carrying on the activities on the land. In the former case the nature and extent of the duty will be delineated by reference to the Occupiers' Liability Act and in the latter by reference to the general law whether it be of negligence or by reference to the principles of strict liability imposed upon those who keep animals upon land in certain circumstances.
Bearing these principles in mind I looked to the Full Court for instruction, having in mind the prediction made by Mr Handford in the article previously referred to at p215 where he wrote:
"In Western Australia, I would expect the English practice to be adopted. The Act will apply to situations where the occupier is required to show care by reason of the occupation or control of premises; the common law will take over where the liability depends on some relationship between the parties other than that of occupier and visitor. A somewhat similar distinction will no doubt be adopted in Victoria and South Australia. The long line of High Court cases prior to [Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479] will be of considerable assistance.
There will thus be distinctions in Western Australia, Victoria and South Australia which will be avoided in jurisdictions which rely on the common law and do not enact Occupiers' Liability Acts."
Two authorities in Western Australia highlight the difficulty. Westralian Caterers (supra) and Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119, 11 March 1994.
Westralian Caterers concerned a situation in which that company was contracted by Eastmet Limited to provide catering staff at its mine site. One of Westralian Caterers' employees slipped and injured her knee whilst working in a cool room on the respondent's premises. Upon making a claim against her employer for workers' compensation, the employer sought an indemnity from the occupier of the premises. The Workers' Compensation Board at first instance refused indemnity on the ground that a claim against the occupier was not a claim in negligence in respect of which indemnity could be sought pursuant to s93 of the Workers' Compensation and Rehabilitation Act 1981. His Honour the Chief Justice, analysing the Occupiers' Liability Act 1985 and the Workers' Compensation and Rehabilitation Act 1981 concluded:
"The purpose of the Occupiers Liability Act was to achieve by statute what was achieved by the development of the common law by the decisions of the High Court. The statutory provisions did not create a new cause of action for breach of statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson.
In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence …. There is nothing in the statute which would have the effect that the cause of action in negligence at common law against occupiers has been converted into a cause of action for breach of statutory duty."
In Tonich the plaintiff was a customer at the Old Metropolitan Markets in Wellington Street, Perth when, wheeling a barrow load of produce purchased from the defendant down the defendant's ramp he slipped, fell and broke his leg. He brought an action in damages for breach of the defendant's duty to him pursuant to s5 of the Occupiers' Liability Act 1985 and further pleaded by para 6 in his statement of claim that "further, and in the alternative, the defendant was negligent" whereafter followed the same particulars of negligence as were relied on by him for breach of the duty he said was owed him pursuant to s5 of the Occupiers' Liability Act.
Anderson J in delivering the judgment for the Full Court (with which Malcolm CJ agreed) said:
"In my opinion, the Occupiers' Liability Act leaves no room for the operation of the doctrines of the common law as regards the duty of care that is owed by an occupier to an entrant. It is no longer the common law that imposes the duty but the statute and the nature and extent of the duty is defined by the statute. Insofar as paragraph 6 of the statement of claim seeks to plead a separate cause of action based upon common law principles, or seeks to invoke those principles in aid of the action based upon the statute, it is misconceived and discloses no cause of action.
The duty upon the respondent was the duty imposed by the statute."
Hence, it appears, that by Westralian Caterers a claim pursuant to the Occupiers' Liability Act 1985 is categorised as in truth an action in negligence and not an action for breach of statutory duty and in Tonich the action is said to be entirely a creature of statute and a claim in the alternative in negligence to be misconceived.
It seems to me that the weight of authority and opinion is on the side of the interpretation of the legislation in Westralian Caterers. Certainly the English practice with 30 years greater experience of legislation in almost identical terms is strongly suggestive of the Westralian Caterers approach being correct.
If this is the case, and I hold that it is, then it means that there is still a distinction to be drawn between "occupancy duty" and "activity duty", the former being within the statute and the latter being outside of it as being a duty owed by reason of the carrying on of the activity not by reason of the occupancy of the premises. This seems to me to be supported by the phrase in s5(1) in the Act "… and for which the occupier is by law responsible …". Explained another way, the activity duty is owed by whoever carries on the activity, it is not owed only by the occupier as a consequence of occupation.
How then to categorise the circumstances of this case? In my opinion if the plaintiff has a claim it does not arise by reason of the defendants' occupancy of the caravan park premises. It arises by reason of the defendants' control of the pony. It is their activity in respect of the pony of which the plaintiff complains, not their activity in respect of the premises. Accordingly, if the defendants owed the plaintiff any duty of care it was owed by reason of the activity conducted on the land and not by reason of their occupancy of the land. This claim must fail.

This brings about an unfortunate result for the plaintiff because despite the aims of the reforms of the common law in the middle of the 19th century and subsequently and the rules of court developed especially following the Judicature Acts of 1873 and 1875 the plaintiff has cast his fly into the wrong pond. He has chosen the wrong cause of action. This result could have been averted if the plaintiff had cast his case as a claim in negligence either in addition to or in lieu of the claim brought pursuant to the Act.
In the circumstances I think it is appropriate that I deal with the plaintiff's claim under the Act in the event that my analysis of the Act is incorrect.
As previously noted the plaintiff pleaded that the defendants ought to have known that the pony had a propensity to kick if approached from the rear without warning. I am not sure, but I think the basis upon which the plaintiff puts this is that it is generally known that you do not approach horses from the rear because all horses have a propensity to kick. It was certainly not put on the basis that by reason of some fact, circumstance, matter or thing these defendants knew that this pony had a propensity to kick (ie scienter was expressly disavowed). It seems to me that there are two ways in which it might be said that these defendants ought to have known that their pony had a propensity to kick if approached from the rear without warning. The first would operate by way of a legal presumption that all horses are known to kick and therefore everyone in charge of them is under a duty of care in this respect. But in an age when the law's knowledge of the propensity of horses in general was wider than it is now it has been affirmatively held that it was not in the ordinary course of things that a horse not known to be vicious should kick a man: Bradley & Ors v Wallaces Ltd [1913] 3 KB 629. Upon considering this authority counsel for the plaintiff suggested that it was precisely because our society in the late 20th century did not have everyday experience with horses enjoyed by society at the early part of that century that that authority should not be followed, rather suggesting, I think, that the proposition that the defendants ought to have known that the pony had a propensity to kick if approached from the rear without warning was thereby weakened.
The second way in which it might be said these defendants ought to have known that their pony had a propensity to kick if approached from the rear without warning, is if it is shown that this is the state of society's knowledge today (and in 1997).
Evidence of society's current state of knowledge of the behaviour of horses generally was adduced by the plaintiff through an expert, Mrs Elaine Greene. Mrs Greene is an accredited National Pony Club coach and has been for 20 years. She has been accredited by the Pony Club Association of Australia and the Equestrian Association of Australia. She conducts special clinics for those interested in the riding and care of horses. Additionally she breeds thoroughbred horses. She described horses and ponies as animals preyed upon in the wild and that their retained instinctive reaction in a situation of fear or fright is flight or kicking. She said that a horse will not kick for no reason. Asked what circumstances may startle a horse she described a number of such circumstances such as a dog coming at a horse, a cyclist bumping into a horse and such like but said that being approached from behind would probably not startle the horse. Nevertheless she said she always taught that the correct way to approach a horse is from the shoulder with voice so that the horse knew it was being approached. In cross‑examination Mrs Greene testified that just passing to the rear of a horse would not ordinarily cause a domesticated horse to kick out, bumping into the horse's rear could possibly cause it to kick out. She would not take the risk of approaching a horse from behind and putting a hand on its rump. In comparing horses and ponies Mrs Greene testified that ponies are quieter than horses. The plaintiff testified that he did not know about horses and did not know how to approach them. Mr Butterly had had some experience with horses as a young man growing up in Bruce Rock. His aunt and uncle had kept horses and he had experience riding them. Whilst Mr Butterly said that he would keep away from the rear of a horse he never stayed away from the rear of Ned. He had never known Ned to kick out with his hind legs when startled, the only reaction to being startled he had observed in Ned was to observe him rear up. The only incident he was aware of with Ned kicking anything was when his dog bit Ned in a display of jealousy when Ned kicked out but didn't even knock his dog over.
Considering this evidence I can find no basis upon which the defendants ought to have known that their pony had a propensity to kick out if approached from the rear without warning. It follows that I need not consider the particulars any further. In any event, as I have found, the plaintiff did not approach Ned from behind without warning. He had been patting him and turned away.
Looking at the defendants' case, they approached the matter somewhat differently, as may be expected. They argued that if the Occupiers' Liability Act 1985 applied as alleged by the plaintiff, it first had to be shown by the plaintiff that there was a danger, and then argued that the plaintiff had not shown that there was any danger in having the pony on the premises at all. Although the defendants didn't put it this way I understood them to be saying that in these circumstances "danger" is not to be equated with "risk of injury" as the plaintiff's counsel was arguing and again, while the defendants' counsel didn't put it exactly this way I understood him to be saying that you do not get to the point of considering risk of injury until after it is decided whether or not there is a danger giving rise to the duty of care. In other words you deal with s5(1) before you then move to s5(4). Looking at it this way, asking: what is the danger which gives rise to the duty of care? the answer of the plaintiff is: the danger of being kicked by the pony. So here the question becomes whether the Act in speaking in these terms is talking of a real as opposed to a merely theoretical danger, in the same terms as the common law of negligence speaks of a foreseeable risk of injury, in respect of which the observations of Mason J in Wyong Shire Council v Shirt (1980) 29 ALR 217 at 221 are apposite:
"The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
In my opinion the answers to these questions will be different depending upon whether one sees the Act as being a complete code to which the ordinary principles of negligence are not to be applied, or as merely defining in its terms the nature of the duty and the criteria by which its discharge or breach are to be considered. If the former then the danger of which s5(1) of the Act speaks must mean a real as opposed to a merely theoretical danger which gives rise to the duty and then to see whether the duty is being discharged one then looks to the circumstances outlined in s5(4) of the Act. If the latter, then danger must relate to the risk of injury and any risk no matter that it might be almost infinitesimal is a foreseeable risk and would therefore constitute a danger.
If this approach is correct, and it has much to commend it, it is difficult to see how a pony, with no known characteristic of temperament giving rise to a feat that it might kick anyone coming upon it, could constitute a danger within the meaning of s5(1) of the Act.
For these reasons, I find that even in the event that I am wrong in finding as I have done that the plaintiff has chosen the wrong cause of action, and that his action was properly brought under the Occupiers' Liability Act 1985, then I am of the opinion that it still must fail because the pony did not constitute a danger as giving rise to a duty of care.

Damages - Provisional Assessment

As has already been noted, after he was kicked by the pony the plaintiff arranged with Mr Butterly to be provided with some ice which he applied to his left calf. The plaintiff described his left leg as feeling shocking, swelling up to double its size and proceeding to show a large bruise. He apparently applied two ice packs to the left calf that day. The next morning he went to a locum doctor in Esperance, Dr A Cooper. Dr Cooper was working at the practice of Drs Byrne and Rowlands and was not available to give evidence but I admitted a report prepared from his notes by Dr Byrne as Exhibit P4 pursuant to the provisions of s79C of the Evidence Act. The note on the card reads as follows:
"Mr Marius Oates was kicked in the back of the left calf by a horse yesterday. He had a bruised and swollen calf. He was advised ice and non‑steroidal and anti‑inflammatory drugs. He has not been seen since."
The plaintiff and his wife each testified that Dr Cooper had told him to "walk, walk, walk" which I gather from the evidence of other medical practitioners was advice they would not have given so soon.
As the plaintiff and his wife had embarked on a 'round Australia' journey and had a commitment to travel to Brisbane to see their son, they set off from Esperance shortly and the plaintiff, driving in great difficulty as his wife doesn't drive, arrived at Robe in South Australia where, as I apprehended his evidence, his leg, remaining very bruised and painful, obliged him to stay for 15 days and to seek medical treatment. He went to a doctor in Robe who referred him to Mt Gambier for some tests in consequence of which he was told that he had a ruptured calf muscle and a thrombosis. Continuing his journey he arrived in Melbourne and attended as an out patient at the Royal Melbourne Hospital where he was told about the dangers of thrombosis. From thence he travelled to Sydney, and finally in Brisbane where, as I understand it, visiting his son, he sought further medical advice from the Chatswood Road Medical Centre. There he saw Dr Khan who arranged an ultrasound test. Dr Khan noted in a medical report dated 9 July 1998 admitted into evidence as Exhibit P5 that on examination on 11 January 1998:
"… there was nothing significant on general obs and systemic examination. However he had some swelling and tenderness on left calf. The circumfrence (sic) of left calf was 35cm in comparison to 31cm of right calf. He was advised to continue Asprin with request for u/s scan of left calf.
On 12/1/98 he was reviewed with u/s scan which showed a collection of fluid 15cm x 7cm x 2cm on medial aspect of left calf consistent with haematoma (collection of blood) without any evidence of deep vein thrombosis. He was advised for conservative treatment."
After holidaying with his son the plaintiff left Brisbane travelling to his home in Perth via the north of Australia (Darwin, the North West and so on).
He arrived back in Perth on 15 May 1998 and on 19 May 1998 he attended upon his general practitioner Dr Andrew Dennis. Dr Dennis managed the plaintiff's care from that time forward. Dr Dennis observed that the plaintiff's left calf was still inflamed and swollen and was two to three centimetres thicker than the right calf. There was a lumping effect in the left calf. The plaintiff began to complain of pain in his buttocks and lower back pain. Whilst the plaintiff had been prescribed anti‑inflammatory medication such as Indocid prior to being kicked by the pony, and as I understand the evidence, had a current prescription for it, he continued to take Indocid suppositories largely in consequence of the pain in his left calf.
Apart from prescribing Indocid, Dr Dennis referred the plaintiff to physiotherapy with no improvement such that up until now he continues to experience a pain in his left calf, it is still two centimetres thicker than his right calf, and he continues to take Indocid suppositories and analgesia regularly to manage the pain and discomfort associated with his injury.
The plaintiff claims that the injury has had a significant effect on his lifestyle. He used to attend to all of the gardening at his house including the lawn mowing but this he is now able to do only sporadically and with difficulty. Additionally he used to love fishing but finds that the work involved in beach fishing walking up and down sand hills and the like too difficult and he has only been fishing once or twice since he was kicked by the pony.
The defendant arranged for the plaintiff to be subjected to video surveillance and some film was taken of him mowing his front lawn. The plaintiff said that he was trying to teach his wife to mow the lawn because of the difficulties he endured with it. During the course of the film the plaintiff and his wife alternated in the mowing duties and there was depicted a scene of the plaintiff trying to demonstrate lawn mowing to his wife. Whilst Dr Edelman (called for the defendant) was of the opinion that the film showed the plaintiff to be mowing his lawn and walking his dog without any problem at all, I formed a different impression. I felt the film showed that the plaintiff favoured his left leg. Whilst this wasn't a marked favouritism I formed the clear impression that he was working with some disability, albeit it not great. Likewise with the walking of the dogs the film corroborated his evidence that he now walked the smaller of the two dogs owned by himself and his wife, with his wife attempting to manage the larger of the two. In the end result I thought the film was partly corroborative of the plaintiff's testimony, if anything perhaps indicating a tendency to mildly exaggerate the extent of his symptoms. Dr Edelman, notwithstanding his views of the film, was of the opinion that the plaintiff had not made a complete recovery expressing the view that:
"He still has symptomatology albeit somewhat in excess of what they may be and one calf is bigger than the other (sic)."
Asked to express the plaintiff's disability in terms of a percentage, presumably of the efficiency of the plaintiff's body as a whole, Dr Edelman thought the disability amounted to a 7½ per cent loss of function.
Looking at all of these factors I think that in circumstances where there is no suggestion of the plaintiff having sustained any economic loss he having retired from his employment without expressing any intention of resuming any employment whether full time or part time in the future, I am of the opinion that an appropriate award of general damages would be in the sum of $15,000. I should note that the parties had agreed special damages at $3000.
The parties had not agreed the cost of the plaintiff's future medical and pharmaceutical treatment. Based on the evidence of Dr Dennis and the plaintiff I think it tolerably clear that the plaintiff does and will continue for the next couple of years to take some medication and whilst the evidence of the cost of an attendance upon Dr Dennis was non‑existent there is a standard Medicare rebate which is the subject of regulation and which I can take into account in assessing that the drugs taken by the plaintiff are prescription drugs and he would need to attend upon Dr Dennis to obtain a prescription. Dr Dennis said that he always gave three repeats with the Indocid suppository prescription. The plaintiff gave evidence that the Indocid cost him $4 or $5 each time he took out a prescription and that one prescription would last him some 20 days to a month. In those circumstances I think that I can estimate a sum to take account of the cost of future attendances upon Dr Dennis and the cost of future prescriptions and make an allowance for that which I do in the sum of $500 and accordingly my provisional award for damages is the sum of $18,500.