Oates v BUTTERLY - [2000] WASCA 406

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: OATES -v- BUTTERLY & ANOR [2000] WASCA 406

CORAM: IPP J
MURRAY J
MILLER J

HEARD: 24 NOVEMBER 2000

DELIVERED : 20 DECEMBER 2000

FILE NO/S: FUL 69 of 2000

BETWEEN: MARIUS EVAN OATES
Appellant (Plaintiff)
AND
JOHN LIONEL BUTTERLY
JUDITH MAREE BUTTERLY
Respondents (Defendants)

Catchwords:

Negligence - Action for damages for personal injury caused by pony kicking appellant - Finding of fact that incident occurred otherwise than as claimed by appellant - Finding fatal to appellant's action - No evidence of negligence - Turns on own facts

Legislation:

Occupiers' Liability Act 1985, s 5

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff) : Mr T N Cullity
Respondents (Defendants) : Mr P K Walton

Solicitors:

Appellant (Plaintiff) : Trewin Norman & Co
Respondents (Defendants) : Jackson McDonald

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

Nil

Case(s) also cited:

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Barlett & Anor v Jones, unreported; FCt SCt of WA; Library No 990073; 22 February 1999
Bradley v Wallaces Ltd [1913] 3 KB 629
Bryant v Fawdon Pty Ltd (1993) ATR 81-204
De Vries v Australian National Railways (1993) 177 CLR 472
Draper v Hodder [1972] 2 QB 556
Flint v Lovell [1935] 1 KB 354
Galea v Gillingham [1987] 2 Qd R 365
Gallo v Dawson (No 2) (1992) 109 ALR 319
Hackshaw v Shaw (1984) 155 CLR 614
National Australia Bank v Nobile & Martelli (1988) 100 ALR 227
Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7
Schmitz v Pilpel (1988) A Torts Rep 80-178
Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994
Uranerz (Australia) Pty Ltd v Hale (1980) 30 ALR 193
Westralian Caterers Pty Ltd v Eastmet Ltd (1992) 8 WAR 139
Wyong Shire Council v Shirt (1980) 29 ALR 217

IPP J: I have had the advantage of reading the reasons to be published by Miller J. I agree with those reasons and his Honour's conclusions and wish to make only the following brief comments.
The basis of the appellant's claim was pleaded in his statement of claim as follows:
"The defendants ought to have known that the pony had a propensity to kick if approached from the rear without warning."
The particulars of the respondents' negligence were predicated on this proposition. Thus, it was essential to the appellant's case to prove that the pony kicked him when he approached the pony from the rear without warning. In fact, the learned trial Judge found that the appellant "did not approach [the pony] from behind without warning". His Honour held that the appellant had been patting the pony and was kicked when he turned to leave the animal. Once that finding was made, the appellant's claim collapsed. Counsel for the appellant submitted that the trial Judge erred in failing to find that the pony had kicked the appellant from the rear without warning. He submitted that there was no evidence to support the conclusion of the trial Judge and the appellant had not been cross‑examined on this basis. I am not able, however, to accept these submissions. The first respondent testified that the appellant told him that he had been kicked in the back of the leg after patting the horse and when he turned to walk away. This, in effect, was an admission by the appellant on which the learned Judge was entitled to rely. The appellant was cross‑examined about this conversation and the essential aspects were fairly put to him. He denied the conversation and denied that he ever patted the pony. The learned Judge, however, disbelieved the appellant as he was entitled to do. In the circumstances, the appeal must fail.
MURRAY J: I agree that for the reasons to be published by Miller J and for the supplementary reasons of Ipp J, this appeal should be dismissed.
MILLER J: This is an appeal from a judgment of Nisbet DCJ delivered in the District Court at Perth on 31 March 2000 when his Honour dismissed the appellant's claim for damages for personal injury sustained by him on 26 November 1997 when kicked by a pony in a caravan park of which the respondents were the proprietors. Although his Honour dismissed the claim he made a provisional assessment of damages indicating that had he found in favour of the appellant there would have

been judgment for him in the sum of $18,500, $15,000 of which represented general damages.

The facts revealed that on 26 November 1997 the appellant and his wife had booked into The Bushlands Holiday Village, a caravan park comprising some 20 acres and conducted and owned by the respondents. At this caravan park the respondents kept a small pony which was tethered by a 6 metre lead. During the day the pony was tethered at various locations within the caravan park where it grazed. At night it was taken to a yard behind a shed.
On 26 November 1997 the appellant made some checks on the annexe to his caravan. According to his evidence, he walked backwards from the caravan in order that he could check the level of the annexe. He vacillated on this point, stating at one point that he had actually walked away from the annexe with the intention of turning and looking back at it. Either way, he claimed that whilst standing in the area of the caravan park and observing his annexe, he suddenly felt a blow to his left calf which knocked him to the ground. On turning he saw a pony kicking out at him with its rear legs. He was assisted to his feet by his wife and went to the caravan park office where he reported the incident to the first respondent. Thereafter he sought medical assistance at first in Esperance and then later in South Australia and other parts of Australia as he was proceeding around the country on a caravan tour. Ultimately upon his return to Perth he still had a disability and at trial sought damages for permanent disability in relation to the injury to the left leg.
At trial the appellant stated that he had seen the pony upon his arrival at the caravan park and on a number of occasions thereafter. He said he gave it no thought and at no time had he approached it in any way. As to what happened on the afternoon of 26 November he said:
"Now, when you came out of the caravan to check your annex, did you see the pony in the vicinity or did you notice the pony? --- I went frontward. I didn't see nothing at all.
When you were walking backwards, were you aware that there was a pony in the vicinity? --- No, I didn't. I didn't see it.
So you said you walked back two or three steps, and what happened? --- I feel like I be having shocks, you know, 240 volt shocks. It was like 240 volt shock, and I went ---
Whereabouts was it? Whereabouts was the shock? --- On my calf.
Which side? --- Left calf.
And what did you do when you felt this shock to your left calf? --- I went forward. I dropped - I lost balance and I went forward.
All right. At the time that you fell forward, did you know what had happened? --- No idea; no idea at all.
Well, when you fell forward, what did you do then? --- I turned my head and I looked and saw the pony still trying to kick me too.
How many times did he do that? --- Two or three times perhaps. There were two or three times."
When cross‑examined, it was first put to the appellant that he had failed to see the pony because he was not paying attention:
"I put it to you, Mr Oates, the pony was there all the time. You didn't see it because you weren't paying attention? --- No, no. I didn't see - have eyes to see. I didn't see it. I didn't see it. Was hide perhaps behind a bush or something like that. I didn't see it.
But when you turned around you only walked back a distance of a couple of metres. Is that right? --- A couple of metres? --- Could be 3 or 4 metres, could be. I don't know, really.
So the pony was only something in the order of 3 or 4 metres away from the point you turned around, but you just didn't see him? --- I didn't see it."
It was then put to the appellant that after the incident he had given a different version of the event to that which he was claiming in his testimony:
"After the accident when you spoke to the owner of the caravan park, what did you tell him happened? --- I beg your pardon?
What did you tell the owner of the caravan park? --- That the pony kick me.
Did you tell him that you were walking out, trying to check the set of your annexe and you turned around and walked back to --- ? --- I told him I was near to my barn, near my annexe, and the pony kick me - my barn, my caravan.
Did you say anything to him about trying to pat the animal? --- No, I never pat the animal. I never pat."
Evidence was given by the first respondent that after the alleged incident the appellant did indeed give a version different from that to his sworn testimony at trial. The first respondent said in evidence:
"Immediately after the accident or the incident or shortly after the incident did you speak with Mr Oates? --- He came down - heading down the main driveway. This is the first time I heard about it. He was walking down the main driveway towards the office, between the shed and the garage, and told me that - he said, 'The horse has kicked me in the leg.' I said, 'Where?' and he said, 'On the back of the leg.' He had shorts on. I couldn't really see any kick mark there and he said, 'Can't you see that?' and I said, 'Well, what happened?' and he said, 'I was patting the horse. It was all right then and I turned to walk away and he kicked me in the back of the leg.' "
The first respondent was cross‑examined on this issue but remained adamant that his version of the conversation was entirely accurate:
"You say that Mr Oates said that he patted the pony? --- Yes.
And kicked him? --- No, I said - Mr Oates told me - his exact words as far as I can remember is, he went over to pat the horse. The horse was all right when he was getting patted. When he turned away to walk back to his vans, he got kicked."
The learned trial Judge thought that the actual circumstances in which the appellant was kicked might make no difference to the determination of the issue of liability. He said:
"… 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."
His Honour followed up this conclusion with a more positive finding later in his reasons:
"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."
It will be seen that his Honour's first conclusion about the circumstances of the incident incorporated a finding that the appellant had told the first respondent that he had been patting the horse (sic pony) before turning to leave it but fell short of a firm conclusion that this was in fact what had occurred. His Honour's suspicion that the appellant had "reinvented the manner of him being kicked" was an adverse finding on the appellant's credit as a witness. The second finding was a positive one that the appellant had in fact been patting the pony and had turned away when he was kicked. His Honour's conclusion in this respect was an important one, as the case for the appellant was at all times advanced on the basis that the appellant had inadvertently backed into the pony and been kicked. That was a very different factual scenario from one in which the appellant had approached the pony, patted it and then been kicked as he turned away.
The appellant's action was brought pursuant to the provisions of the Occupiers' Liability Act 1985. It alleged a failure on the part of the respondents to take such care in all the circumstances as was reasonable to see that the appellant did not suffer injury or damage "pursuant to the Act". Certain particulars of negligence were pleaded which underlined the basis upon which the appellant's case was brought. They were as follows:
"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."
The learned trial Judge placed considerable importance upon the fact that the appellant's action was brought under the provisions of the Occupiers' Liability Act and was not an action in negligence. Indeed, an application to amend the pleadings to add an allegation of negligence was refused because it was not made until closing submissions and his Honour thought that there would be undue prejudice to the respondents by allowing the amendment.
The learned trial Judge dealt at length with the distinction between "occupancy duty" and "activity duty" and reviewed a number of authorities on the purpose for which the Occupiers' Liability Act became part of the statutory law of Western Australia. His Honour concluded that if the respondents owed the appellant 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" and thus determined that the action should fail. In the alternative, on the assumption that the action had been properly brought under the provisions of the Occupiers' Liability Act, his Honour was still of the view that the action must fail, as the pony did not constitute "a danger as giving rise to a duty of care". His Honour's conclusion in this regard was:
"… 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."
The appellant raised before this Court a number of grounds of appeal which related to the learned trial Judge's findings on the application of the Occupiers' Liability Act, but contended that even if the duty of care required by the provisions of s 5 of that Act did not apply, then in any event the duty of care required by the general law of negligence was the same duty and the learned trial Judge erred in law in failing to hold on the pleadings that the respondents were in the circumstances in breach of that duty.
The resolution of this appeal does not turn on the applicability of the provisions of s 5 of the Occupiers' Liability Act. It is unnecessary to review the learned trial Judge's conclusions in relation to that Act, it being sufficient to determine the matter on the question whether there was negligence on the part of the respondents. In this respect the learned trial Judge's conclusions of fact are critical. His Honour found that the appellant had not approached the pony from behind without warning but had been patting it and had turned away from it when kicked. This was an entirely different version of events than that which had been advanced by the appellant himself. It was a conclusion which, in my view, was open to the learned trial Judge. The appellant had been cross‑examined in relation to a different version of events than that which he advanced, although it is true that the cross‑examiner may have gone further than he did. Nevertheless, the appellant made a positive statement that he had not patted the animal. The first respondent testified that this is exactly what the appellant had said to him immediately after the event and the learned trial Judge accepted as a fact that the appellant had. From this it was open to his Honour to conclude as a fact that the truth of the matter was that the appellant had been patting the pony and had not backed into it inadvertently. Once this conclusion is reached, it is apparent that there could have been no negligence on the part of the respondents.
I should add that there was evidence at trial that the respondents had never known the pony to kick out with his hind legs when startled, its only reaction to being startled having ever been that it reared up. According to the first respondent there had been an incident when the pony had kicked a dog which had bitten him, but never more than that.
There was also evidence from a Mrs Elaine Greene who was an accredited National Pony Club coach who was able to testify about the characteristics of horses and ponies. She said that ponies are quieter than horses and added:
"All right. The evidence we have here in this case is that the plaintiff says that he was kicked by a pony while backing away from his caravan annexe at a caravan park in Esperance and obviously, he would say, getting himself within the range of the pony's hind legs. On the basis of your experience, Mrs Green, I wonder if you could offer any explanation for the actions of the pony in that sort of a situation? --- I would probably find that the pony probably got a fright and normally their reaction, because they actually are a prey animal, that means they are preyed upon by predators, they tend - their reaction for defence will be either to run, flight, that's why a horse or a pony is a fast‑moving animal, or they will kick, that's the other thing but normally they would only do that if they actually really got a startle. In normal instances they wouldn't kick for no reason.
In what kind of circumstances might a horse get startled? --- Say you were riding along and a dog came out from the bushes, you are riding down a track and a dog jumped out, then that would probably - a pony or a horse would kick out at the dog, perhaps, or if the horse was standing up, was resting and something bumped into it, say a cyclist bumped into it or something - anything like that, it would actually startle and its reflex action could be - if it couldn't get away, could be perhaps to kick."
This evidence was however predicated upon the appellant's contention that he had inadvertently backed into the rear of the pony. Once the trial Judge had concluded that this was not the basis upon which the incident occurred, the evidence was of little relevance, save to underline the fact that unless startled a pony was unlikely to kick.
Given that the appellant's case was entirely predicated upon the appellant having approached the pony from the rear without warning, it is clear that the learned trial Judge's findings of fact left no room for a finding of negligence against the respondents. It was never asserted (nor could it be on the pleadings) that the respondents had breached a duty of care to the appellant in having a tethered pony on the caravan site which when patted by the appellant had kicked his leg.
Given that the findings of fact to which I have referred were open to the learned trial Judge it was inevitable that the appellant's claim must be dismissed. For these reasons I would dismiss the appeal.