Ohlstein bht Ohlstein v Otford Farm Trail Rides

[2005] NSWSC 605

CITATION:	Ohlstein bht Ohlstein & Ors v Otford Farm Trail Rides [2005] NSWSC 605
HEARING DATE(S):	30/05/05 - 03/06/05; 06/06/05; 08/06/05
JUDGMENT DATE :	23 June 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	LIABILITY OF DEFENDANTS NOT ESTABLISHED

CATCHWORDS:	NEGLIGENCE - ADDITIONAL ALLIED CAUSES OF ACTION PLEADED - RECREATIONAL HORSE RIDING ALONG NATURE TRAIL - REACTION OF HORSE TO INTERFERENCE BY ANOTHER ANIMAL - ABSENCE OF BREACH OF DUTY BY OPERATOR OF RIDE - SEPARATE TRIAL OF LIABILITY
LEGISLATION CITED:	Fair Trading Act 1987
PARTIES:	Tali Ohlstein by her tutor Adam Ohlstein, Jared Ohlstein, Vanessa Duncan and Adam Ohlstein v Elizabeth Lloyd and Timothy Lloyd trading as Otford Farm Trail Rides
FILE NUMBER(S):	SC 20297/01
COUNSEL:	P. Neil SC with S. Kettle (Plaintiffs) S. Campbell SC with A. Davis (Defendants)
SOLICITORS:	Maurice Blackman Cashman (Plaintiffs) Curwood & Partners (Defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 23 June 2005

20297/01 - TALI OHLSTEIN by her tutor ADAM OHLSTEIN, JARED OHLSTEIN, VANESSA DUNCAN and ADAM OHLSTEIN v ELIZABETH LLOYD and TIMOTHY LLOYD trading as OTFORD FARM TRAIL RIDES

JUDGMENT

1 HIS HONOUR: On the afternoon of Sunday 5 April 1998 Vanessa Duncan, accompanied by her two children, Jared and Tali Ohlstein presented themselves at Otford Farm, an establishment offering equine leisure activities, and engaged in a trail ride. An accident occurred during the ride and Tali sustained serious injuries. Before the Court is an action by her seeking damages in respect of those injuries. Her mother, brother and father also seek damages for what I might for brevity, call nervous shock.

2 By order made on 11 August 2003 it was directed that there be “a separated trial on liability”. It is common ground that what is to be determined is the liability of the defendants for negligence or breach of statutory or contractual duty, without reference to any issue about whether the plaintiffs, other than Tali, have suffered injury in a category which can be compensated by damages. The causes of action of those plaintiffs are derivative from and dependent upon the viability of action by Tali. Hence the hearing focussed upon whether the defendants were liable for her injuries.

3 The partners in the firm trading as Otford Farm Trail Rides are mother and son. The former, Elizabeth Lloyd is a medical practitioner and does not engage in the day to day running of the business but Timothy Lloyd does and his wife assists in the activity.

4 The hearing involved some, at times detailed, exploration of what was said to and by whom and what happened. There are disagreements in the evidence about many of these matters. It is over seven years since the relevant events. It is no novel proposition that reflection on the past can engender beliefs which are not entirely accurate, but which in the course of time transcend into what is harboured as a memory. Different people then may conscientiously reproduce different contents of memory about the same events. Much attention was paid to items of disputation but many of these are irrelevant (in the sense of providing weight to conclusion) to the determination of the issue of liability.

5 The first of such disputes touched upon initial contact. The decision to engage in horse riding activity was taken in circumstances described by Ms Duncan in these terms:

“Q. Can I take you now to Sunday 5 April 1998. On that day did you want to engage in some type of family activity?
A. Yes. Like, mid morning and we were just sitting around thinking what a nice day it was. Adam wanted to go to the beach. I sort of felt we always went to the beach, that’s what our family always did. Tali did express quite an interest in horse riding and she had loved horses for a long time and I felt, well, we will try that today.
Q. Did you do something?
A. I got the Yellow Pages out and looked in the section for horse riding, found an ad for Otford Farm Trail Rides and called up.”

6 Ms Duncan spoke to Timothy Lloyd. Her version of the conversation was:

“A. It was very brief. I just said, you know, ‘We would like to go horse riding. I would like to take my kids horse riding’. He said, ‘That’s fine. There would be a ride that’s suitable at 2.00 o’clock’. He asked for my name and phone number and that was it, and I just went into the lounge room and told Adam we were going at 2.00 o’clock that afternoon. And he said he still didn’t want to go and I tried to talk him into it, but he said he didn’t want to go but he would go down to Stanwell Park and I would pick him up from there at 3.30.”

7 In fact Adam Ohlstein went to the beach and the rest of the family went to Otford Farm.

8 Mr Lloyd’s recollection of the content of the call was that Ms Duncan asked about trail rides and he told her that they had these and other forms of horse riding activity. As Ms Duncan telephoned in consequence of seeing an advertisement for Otford Farm Trail Rides I think it likely that is what she enquired about. Mr Lloyd remembers a booking for two people but when Ms Duncan came to the farm she was accompanied by her two children. Nothing turns on this difference of memory as, in any event, Mr Lloyd was able to accommodate the three riders with suitable mounts.

9 The next dispute concerns whether Ms Duncan signed the “disclaimer of liability” form and paid her money to Mr Lloyd or to his wife. I tend to the view that it is more likely that the form was signed and the money then paid, rather than, as Ms Duncan seemed to recollect, in the other order. Mr Lloyd had had legal and/or insurance advice about putting up signs and having the “disclaimer” signed and it would be surprising if he followed a procedure whereby he asked the customer to sign the form of disclaimer after the contract had been completed by payment. Again, whilst this contrast in memories has provided a fertile field for counsel to plough, preference of neither version would contribute anything to my determination of the essential issues.

10 Both Jared and Tali have manifested developmental symptoms which might be labelled as forms of autism. Many questions were asked about this of their parents, and a Dr Williams was called. I am satisfied that Ms Duncan did not mention these circumstances to Mr Lloyd or anybody else until she responded to a question by an ambulance officer after the accident. I am also satisfied that nothing about the children would suggest to an observer that they were anything but normal children of their apparent ages. I do not suggest that they are not normal but the only hint that they might require special attention was the request by Ms Duncan for repetition of instructions before setting off on the ride, when she mentioned that they might be slow in understanding. The response by the trail guides Mrs Caruana (Kate) and Ms Warriner (Brooke) was to give a one on one instruction to each child. This was a reasonable response to the circumstance.

11 Questions were directed to Mr Lloyd about whether he would have permitted the children to engage in the trail ride if he had been informed of their “autism”. He said that he would not but the negative did not appear to be related to any knowledge of how this labelled condition would affect Tali or Jared or any other children. The impression I formed was that, if something of this sort were to be communicated to Mr Lloyd, he would decline to offer riding as a matter of precaution rather than foresight of any perceived difficulty.

12 The defendants provided and insisted upon the wearing of safety helmets by their customers. Tali was wearing one when the accident occurred. Ms Duncan had arranged for her to wear school shoes which had a heel rather than casual footwear with the obvious intention that the heel would assist in enabling the shoe to sit in a stirrup.

13 Mr Lloyd gave evidence that when Ms Duncan and the children arrived, obviously as he could see the young children, he raised with her the option of pony rides which he could offer in lieu of trail rides. He testified that Ms Duncan had rejected this alternative, told him that they had previously had pony rides and that the reason that they had come to Otford Farm Trail Rides was for a trail ride. I accept Mr Lloyd’s evidence. It is consistent with Ms Duncan’s contacting a business located by her in the Yellow Pages Directory which was by its title advertising trail rides. Although Ms Duncan places the matter in different context and terms, she gave evidence that Mr Lloyd told her that she and the children could ride about the saddling area and near the homestead but this is an option which she said that she rejected. Implicit in her evidence is that Mr Lloyd did offer alternative to trail riding and I consider it more likely to be in terms of his memory. It was not contested that Otford Farm offered facilities other than trail rides but I am satisfied that Ms Duncan contacted it for that purpose having formed the intention of going for a trail ride and she adhered to fulfilling her intention irrespective of the offer of any alternative. I accept that Ms Duncan told Brooke that they wanted to walk the trail although not necessarily in the terms that she now remembers. I consider Brooke probably understood whatever was said to be an indirect reference to the horses selected and that is why she replied along the lines that things would be fine and “they” were very safe. There is some evidence that along the trail the horses occasionally engaged in short trots. It may have been such an incident at one point which caused Jared to fall off. He was uninjured and remounted after this incident. Whether any of the horses ridden by the Ohlstein family trotted at some point or not, I find unprovoked trotting had nothing to do with the events that led to Tali’s injury. Nor am I persuaded that Jared’s fall required that anything be done to or for Tali by way of reasonable response by anyone for whom the defendants are responsible.

14 The probable composition of the ride which set out, was eight riders, three of whom and the mother of another child can be referred to as the advanced group and that child and three members of the Ohlstein family as the slow group.

15 Before departure Mr Lloyd handed Kate a lead rope. There was nothing brought to his attention or of which he ought to have known, indicating the use of such a lead on the ride but it was a prudent precaution having regard to what was plain, namely that there were young children proceeding on the ride.

16 Brooke led the ride and she was immediately followed by the members of the advanced group. The precise order then of Ms Duncan, Tali and the other child is not established and perhaps it altered along the way. That order at this point is of no consequence. However, Jared was the last in the slow group and was followed by Kate, who positioned herself at the rear in order to pay attention as to how he managed.

17 The ride to the half way point was relatively uneventful. No doubt, from time to time the advanced group created a gap between themselves and the slow group by reason of their respective rates of progress. At the half way point the advanced group set off onto a route which would enable them to canter and/or gallop. Kate escorted this group. She passed the lead which she had been given by Mr Lloyd to Brooke and again I am satisfied that this was simply to have it available if required and not because of any indication that it was in fact required.

18 The slow group now escorted by Brooke moved along the trail ultimately passing through the area with some thatched huts, which had been used at some previous time for the making of a film. Ms Duncan was asked how, to her observation, Tali and Jared had managed up to this point (beyond half way and passing through the film set area) and she said:

“A. They had been fine. They were enjoying it. It was lovely. It was very nice.”

19 However, shortly thereafter Jared called out and it was seen that he was off his horse. Ms Duncan implied that Brooke remounted him contrary to his wishes because it was a long way back to the homestead. It would not be surprising if he required some encouragement, but I am unpersuaded that anything Brooke did was unreasonable and nothing relevant to the action by Tali emerges from this circumstance. The ride resumed. Ms Duncan’s version was that they rode in order of Brooke, followed by the other child, then Tali, then Jared and then Ms Duncan. She described what happened next in these terms:

“A. We just sort of had gotten moving again and the little girl’s horse trotted and stopped, because it sort of dipped down a bit. We were up the top of this grassy area. Her horse trotted a little bit and stopped, then Tali’s horse kind of trotted after it but then veered out on to the right-hand side of her pony, came up almost parallel with Brooke and then turned and went down the hill heading in an easterly direction.”

20 Later events were described:

“A. The horse started to go down the slope. She sort of pitched forward in the saddle and had her arms around the pony’s neck, sort of hanging on, and as she was leaning forward her feet were coming up like that a bit.
Q. You are indicating your arm behind here to indicate ---
A. Like her legs, say like her body was almost, not quite horizontal, but she was really angled down around its neck and her whole torso was up on its neck almost as it trotted down, and then as it was still trotting she fell off on its right-hand side but with her right foot caught in the stirrup.”

21 Then her further description:

“A. Well, it stopped, put its head down to graze, then it went berserk, it was sort of bucking, but not just kicking its legs out behind but around to the right like it was trying to hit at her, and then it bolted from down the bottom of this open area near the dead tree and it just galloped flat out up towards the northern end of that area, sort of like north-west direction. As it bolted off it had gone a fair way, then Brooke took off after it. Tali’s helmet had come off immediately. I saw immediately she didn’t have a helmet on.”

22 Brooke Warriner’s evidence is different from this in some important detail. At the relevant time she was leading the group followed by Tali, who was to her right, followed by the other girl (who was mounted on a horse called Hiawatha) slightly behind Tali but closer to Brooke, followed by Ms Duncan and Jared. Brooke remembers turning in her saddle and talking to Tali at this time. Tali’s mount was named Patch.

23 Brooke was asked what happened and her description was:

“A. I was talking to Tali whilst we were walking along. The horse behind Patch, Hiawatha, bit out at Patch’s rump. At that point Patch jolted or leaped to the side to avoid Hiawatha biting him. It was at that point that Tali began to fall – lost her balance and began to fall off Patch. It was out of my sight because I was turned and facing her, and she fell away from my eyesight.”

She explained that Tali had fallen on the side of Patch furthest from her and thus, she was unsighted by the horse’s body positioned between herself and the child.

24 She was asked for further description and said:

“A. Patch began to accelerate and speed. He became faster. He started to move away from the group and headed down towards the hill.”

And:

“Q. How fast was Patch going?
A. He began at a trot and increased his pace to a full gallop.”

25 Brooke noticed Tali’s foot caught in the stirrup and saw her body hanging underneath Patch whose legs were hitting her as he galloped. Tali’s helmet was dislodged during the incident. It was found near a tree. Patch had headed generally towards this tree and then changed direction to head for a track which would lead back to “home”.

26 As her horse traversed this track, Tali’s stirrup came loose from the saddle and she was deposited on the ground. She was obviously injured and an ambulance was sent for. The ambulance arrived followed later by a helicopter and Tali was taken away for treatment.

27 I prefer the evidence of Brooke Warriner to that of Ms Duncan concerning how Patch came to “bolt”. The evidence was that Patch was a calm horse suitable for, and frequently used for, young children and beginners on trail rides. Otford Farm Trail Rides had been operating for many years with a clientele approximating 5,000 riders per year, many of whom were children and/or beginners. There was no evidence of any previous misconduct by Patch nor any challenge to his categorization as a “bomb proof ”horse. I note that both counsel repeatedly incanted that horses were “predictably unpredictable”, however I consider it more probable than not that an incident such as the invasion of Patch’s space by Hiawatha (even if the intended bite did not make contact) would “spook” Patch into acting as he did, rather than reacting the way he did in relatively innocuous circumstances as described by Ms Duncan.

28 I was impressed by Ms Warriner as a witness and I should add also by Mrs Caruana. Neither of them is any longer employed by the defendants nor do they have any apparent connection with them. Mrs Caruana now lives in Muswellbrook. Ms Warriner has been living in England for over four years. I regard them as independent witnesses. In particular Ms Warriner impressed as an astute witness. Some time in 1998 she typed a statement setting out her recollection of the events. It was plain enough to me as a tribunal of fact that Ms Warriner was at one point being cross examined from some document and it was being suggested to her that Otford Farms had a policy that a child of six or under would not be allowed to ride alone and she responded “That is not the way I worded what I said. That is not the way it was to come across in that comment.” It was notable that the cross examiner did not seek to pursue the assertion.

29 The Amended Statement of Claim purports to particularize some twenty seven assignments of negligence although once the evidence was completed the case on negligence had reduced to a very narrow focus. It is convenient to deal with the allegations as set out in the pleading. In fairness to counsel I should record that not all of what was pleaded was pressed and I am not suggesting that the relationship between the evidence and issues raised by the pleading were overlooked.

30 It will be convenient to deal with these particulars in terms of the pleading.

31 (a) Failing to provide a riding helmet to Tali that was of:

(i) the appropriate standard;
(ii) the appropriate size;

32 The evidence shows that the helmet provided was conformable with the then current Australian Standard and was in common use by horse riders at the time. There is evidence that the helmet came off and that this was a known possibility for helmets of this type. That it did come off in the circumstances leads to no inference that it was the wrong size or that it was not appropriately fitted. It was appropriate equipment supplied for Tali’s use. Like many of these particulars this assertion was effectively abandoned by the time of final address, having regard to the state of the evidence.

33 (b) Failing to ensure that Tali’s helmet was securely fastened so that it would not fall off in the event of an accident.

34 Mr Lloyd gave evidence that he checked the security of the helmet on Tali himself. There is no evidence that he did so incompetently. The evidence does not support the proposition that it could be secured “so that it would not fall off in the event of an accident”. All the experts were familiar with the propensity of helmets of this design to come off in some circumstances such as a blow to it by striking the ground or a moving horse’s leg. It would all depend on the force and the direction in which it happened to be applied.

35 (c) Inappropriately loosening Tali’s helmet prior to the ride.

36 The evidence is that the helmet was checked and properly fitted by Mr Lloyd. I am not satisfied that he inappropriately loosened it.

37 (d) Wrongly advising Vanessa that Tali’s helmet strap need not be too tight.

38 The drafter of the pleading presumably did not mean to allege that Ms Duncan should have been advised that the strap needed to be too tight. I reiterate that the evidence which I accept is that Mr Lloyd properly and competently adjusted the helmet.

39 (e) Failing to supervise and instruct Tali and Vanessa in respect of the fitting of a riding helmet.

40 Ms Duncan’s helmet is not relevant to any issue. There was no need to instruct or advise either of them about helmet fitting as Mr Lloyd had done what was necessary for Tali.

41 (f) Failing to provide the information to Vanessa prior to the ride.

42 I am unable to identify to what information this refers but I do not find that there was any relevant deficiency in the information which was provided by Mr Lloyd, by Brooke and/or by Kate.

43 (g) Failing to ascertain whether Tali was wearing appropriate footwear prior to the ride.

44 It was not contended, nor would I regard it as a reasonable requirement, that a child of Tali’s age should be prevented from undertaking a recreational trail ride unless equipped with long heeled or specifically designed riding boots. As abovementioned, Ms Duncan selected a school shoe as appropriate to the occasion and I find that it was so. Whether anyone in particular on the part of the defendants made an observation is not to the point. If they did, they would have been entitled to conclude that the footwear was appropriate for the occasion.

45 There was evidence from Mrs Pearson-Adams (an experienced horsewoman, one of three such who testified, two called by the plaintiffs, and one by the defendants and whom I shall refer to for convenience as the experts), that in her opinion the stirrup was too big for the shoe. The clearance was later measured and as a consequence I do not accept the opinion which she expressed.

46 (h) Failing to provide safety stirrups, such as ‘clog’ type stirrups that prevent a rider’s foot falling through the stirrups and becoming caught.

47 Whilst there is evidence of the existence of the stirrups of the type described, the stirrup used was a standard safety stirrup acknowledged to be in common use in activity such as trail riding. There was no breach of duty on the part of the defendants in supplying such equipment for use by Tali.

48 (i) Failing to use stirrups that automatically detach when a rider falls.

49 The stirrup clipped to the saddle upon a crescent shaped metallic stud. Once attached, the stirrup was not locked in position and was capable of rapidly detaching from its position in the stud. As Mrs Pearson-Adams recognized, and I accept, there is a necessary compromise between the stirrup staying in place whilst the horse if being ridden and having the capacity to slide off if something untoward, such as the foot being caught, happened. The equipment supplied met the test of reasonableness in the circumstances.

50 (j) Failing to properly fit or adjust the stirrup clips.

51 There is no evidence in support of this assertion.

52 (k) Failing to check that the stirrup clips were adjusted so as to automatically detach if a rider fell.

53 The particular as pleaded assumes an availability of a mechanism, not disclosed by the evidence, whereby this could happen. The evidence is that the equipment was a standard design and as abovementioned, included a necessary compromise between security and detachability.

54 (l) Failing to ensure an appropriately sized saddle was available and used for Tali.

55 There is no evidence that the saddle was unsuitable for Tali. There were descriptions of different sorts of saddles but there was no evidence from any source that Tali should have been supplied with one of a different type. In addition to the absence of evidence of unsuitability emanating from the experts, it is significant that Tali was, to the observations of all including her mother, riding quite well up to the point where her mount was interfered with by Hiawatha.

56 (m) Failing to engage leaders with appropriate experience and qualifications.

57 The reasonable requirement of the defendants was to engage suitable staff to lead and escort a trail ride. Kate was born and raised on a country property. She had ridden as long as she could remember. Her extensive experience is recorded in the evidence. I accept it and will not repeat it. She obtained employment at Otford Farms whilst an undergraduate at Wollongong University. She has since graduated in Science and with a Master’s Degree in Occupational Health and Safety. For about six months after applying for and succeeding in getting employment at Otford Farm she underwent “on the job training” which she described. Brooke was a city girl whose parents owned a country retreat where she rode horses from about the age of five. She had ridden trails and engaged in gymkhanas. She worked for the defendants whilst an undergraduate of Hawkesbury Agricultural University where she graduated with a degree of Bachelor of Agriculture majoring in equine studies. For some time she also kept a horse of her own on agistment at Otford Farm. Like Kate she was given on the job training for about six months before she was sent out as a trail leader.

58 I am satisfied that these escorts were both of appropriate experience and qualification. I am conscious that it is argued on behalf of the plaintiffs that Mr Lloyd was, in substance, self taught and what he passed on by way of training should be found to be inadequate and I will return to deal with this proposition which is not specifically pleaded in any particular, but is relied upon as allegedly emerging from the evidence.

59 (n) Failing to provide special instructions to Tali and Jared when they knew or ought to have known that Tali and Jared would have difficulty comprehending the instructions provided to them.

60 The evidence is that both Tali and Jared were given one on one instruction and I am not persuaded that there was any reasonable cause for either instructor to infer that her instructions were not understood.

61 (o) Permitting Tali, a 5½ year old beginner, to go on the ride.

62 This is an articulation of the submission that the defendants breached a duty of care to Tali in not refusing her access to going on the ride at all. This assertion is apparently significantly premised first on the opinion of Mrs Pearson-Adams, who has been an owner and operator of equestrian training centres for twenty five years in the United Kingdom and for seven years in Australia. Whilst she states that she has been a consultant to trail riding escorts, I apprehend that a recreational trail riding establishment such as Otford Farm is very different from an equestrian training centre. I note the information that she was supplied with the expert witness code of conduct. The impression I gained from her report and her evidence was that she engaged in a search for whatever she could to criticize about the Otford Farm’s operation. It is not insignificant that much of her criticism is not, and cannot be, pressed in the light of the evidence which emerged. For example, her criticisms of the equipment are not sought to be supported now.

63 Her thesis is, in substance, that no beginner should be allowed on a trail ride until they are individually led and assessed in an enclosed area. She opines that they should only be taken on a trail ride attached to a lead. The consequence would be that a customer seeking a ride such as in the case in the Ohlstein family on this occasion, would be refused until they had undergone this “training”. I regard her opinion as describing an unrealistic impediment to the reasonable conduct to be expected of the operator of a recreational trail ride.

64 I express a similar view concerning the evidence of Ms Bennit. I mention that attached to her report is a list of “positions I hold/have held”. These reveal an intense interest in what I would assess as ”high grade” equine activity (and even professional in the approval of apprentice jockeys) which I regard as distant from anything that might apply to conduct of or participation in recreational trail riding. Ms Bennit produced and made reference to the membership information kit of the Australian Horse Riding Centres NSW Inc. I do not determine anything based upon it but it is of passing interest to note the contrast between Ms Bennit’s expressed views and “Aim and Objective” paragraph 2 of that organization’s document which reads in part:

“To encourage the Government and the public that they ride at their own risk …. “.

65 As the histories of Brooke and Kate reveal, riding may be commenced at a very young age. There was no breach of duty of care on the part of the defendants in agreeing to Ms Duncan’s request that Tali embark on the trail ride with herself and Jared.

66 (p) Permitting Tali, a 5½ year old beginner, to go on a ride over uneven terrain.

67 The evidence is, that until the incident which I find was initiated by the unexpected behaviour of first Hiawatha and then Patch, Tali was admirably participating in the trail ride. There is no evidence that the terrain was uneven at the place from which Patch left the trail, nor that any unevenness of terrain was causally connected with Tali’s accident.

68 (q) Permitting Tali, a 5½ year old beginner, to go on a ride of an excessive duration.

69 There was no assertion in the conduct of the case to this effect and I conclude that it represents a hypothesis which occurred to the pleader.

70 (r) Failing to restrain Tali’s horse on the homeward stage of the ride.

71 I accept that when Patch departed from the trail and was not being controlled by Tali, Brooke assessed the situation, saw to the security of the other riders in the group (against the risk that their horses might seek to follow Patch) and then rode her horse so as to seek to cut off Patch. She narrowly missed achieving this. Her conduct was a reasonable response to the circumstances.

72 This particular may have reference to evidence that horses have a “homing” instinct and may show a propensity to hurry when headed there. I do not accept that Patch “bolted” from the trail because he sensed that he was approaching home. He was a horse which had been in constant use in riding the trails at Otford Farm. There is no evidence that he ever exhibited such a propensity and there was no reasonable cause to “restrain” him on the homeward stage.

73 (s) Failing to ensure an appropriate number of leaders for the ride.

74 There was an opinion expressed that, having regard to the anticipation that the eight customer riders would divide into two groups, four escorts should have been sent on the ride so that, after splitting into two groups an escort could be positioned in the lead and in the rear of each group. I regard that as an extravagant and unreasonable requirement. I do not accept the proposition that it is a reasonable requirement for an operator of a recreational trail ride that there be provided four escorts for eight riders.

75 (t) Failing to individually lead Tali during the course of the ride.

76 This is a thesis that Tali should have been on a lead throughout the ride. I reject this assertion. It might be again commented that until the intervention by Hiawatha, all observations of Tali (including those of her mother) were that she was riding well and apparently enjoying the excursion. There was no indication that her horse should have been put on a lead.

77 (u) Failing to ensure that the leaders were placed at the rear of the riders during the course of the ride.

78 If this intended to refer to the second stage of the ride, I reject the implied assertion that in the particular circumstances Brooke should have led the ride from the rear. For the first portion of the journey before the groups divided, the evidence is that the escorts positioned themselves at the head and other at the rear.

79 (v) Failing to warn the riders that the horse may become restive or bolt when approaching home.

80 The accident did not occur because Patch became restive or bolted because he was approaching home, but rather, as I have found, because of the interference by Hiawatha.

81 (w) Failing to warn the riders that they were approaching home.

82 Such a warning was not required and in any event, the absence of telling the riders that they were approaching home had nothing to do with the accident which befell Tali.

83 (x) After Jared’s fall, failing to suggest the slow group walk home.

84 The suggestion in this particular does not represent a reasonable response to the incident involving Jared. It can be mentioned that all the experts were familiar with occurrences of riders on occasions falling from horses (no doubt that is why helmets are provided and required to be worn) but no one except the pleader has propounded the theory that if such an incident ever occurred, everybody should dismount and walk home.

85 (y) Failing to control Tali’s horse adequately or at all when it:

(i) trotted away from the slow group;
(ii) bucked;
(iii) bolted.

86 As above stated, Brooke was a representative of the defendants actually present and her conduct was reasonable in the circumstances which had arisen. Patch did not “trot away” as Ms Duncan propounded and its subsequent behaviour was not within range of control by anyone on a different mount.

87 (z) Failing to provide horse riding facilities that were appropriately matched to Tali’s age and level of experience.

88 It was Ms Duncan who selected the particular facility of the trail ride, as distinct from others mentioned by Mr Lloyd whose evidence that he had made known alternatives to her, I have accepted. Patch was an appropriate horse to provide for a young beginner rider such as Tali.

89 (aa) Alternatively, the plaintiffs’ rely on the doctrine of res ipsa loquitur.

90 The maxim is applicable when an accident is of the kind which does not ordinarily happen without negligence, that is to say, negligence on the part of a party sued. That a person falls from a horse which is out of control of the rider in the course of a trail ride does not convey a supposition that the most likely explanation is negligence on the part of the operator of the recreational facility.

91 I indicated that I would return to the proposition that, as Mr Lloyd was self taught, then inadequacies inherent in his situation would be passed onto his employees, in particular to Brooke and Kate who would therefore not be suitably trained as trail leaders. The postulation of the plaintiffs’ case in this manner did not, as I have commented, find expression in a lengthy table of pleaded assignments of negligence. I gained the impression that it emerged from observation of the contrast between the detailed regulatory regimes postulated by Mrs Pearson-Adams, and Ms Bennit in particular, and Mr Lloyd’s reliance substantially upon conducting his operation in a practical way for many years, supplemented by some reading.

92 As already mentioned, Mr Lloyd in particular had many years experience in running the particular facility and I am unpersuaded that he has been shown incompetent either generally or in possessing the necessary knowledge to operate the trail rides in a reasonable and safe fashion. Nor am I persuaded that any relevant deficiency has been shown in his ability to or in what he did impart to the employees, in particular in this instance to Kate and Brooke.

93 A great deal of the expert evidence is not germane to the immediate facts surrounding Tali’s accident. As I have remarked, Mrs Pearson-Adams was a strong proponent of extensive training, observation and preliminaries before anyone would be permitted to participate in a trail ride. Ms Bennit was, on this aspect, a little more realistic. She recognized that customers would come virtually “off the street” without formal horse riding training or experience and that a trail ride by such members of the public was a commonly provided facility throughout Australia. I have already observed that an amount of criticism advanced by Mrs Pearson-Adams was not supported by the evidence. Ms Bennit (like all of the experts) incanted her adherence to the Court’s experts code, but she also manifested a leaning towards fault finding in the defendant. By way of example I note her gloss upon assumed facts when she referred to Tali complaining that her helmet was too tight and she recorded in her report:

“After Tali complained that the helmet was too tight, Mr Lloyd loosened the chin strap without checking that the size of the helmet was correct.”

94 The assumed facts provided to her are annexure B to her report. After reference to Tali’s complaint about the helmet strap being too tight the facts provided to her state:

“At this point the owner came by and said words to the effect ‘it doesn’t have to be that tight, it can be looser than that’. The owner then adjusted the helmet and later told Adam Ohlstein that this is what he had done.”

95 There is no reference to Mr Lloyd failing to check that the size of the helmet was correct and Ms Bennit either got this information (which is in fact not supported by the evidence) from somewhere else or it represents a flourish in her focus on fault finding by the defendants.

96 Where there has been conflict of opinion between experts I prefer the evidence of Ms Smyth as reflecting a more balanced view about a recreational facility in distinction from more sophisticated equine activity establishments which appear to be the sources significantly drawn upon by Mrs Pearson-Adams and Ms Bennit.

97 Having made those observations however, I should add that I do not regard the outcome of the case as simply dependant upon the cogency of differing expert views. The outcome depends on whether assertions of negligence are sustained. In making an assessment about that it should be borne in mind that common to all experts’ opinion (and I would respectfully suggest to common sense) is a recognition that one of the risks of riding a horse is that the rider may fall off, even if the horse is walking and it was acknowledged that this is an ever present risk with any level of rider. It accords with the aphorism adopted by both counsel that horses are “predictably unpredictable” that in the circumstances which occurred even a calm horse such as Patch might “bolt” and increase the risk of dismounting the rider.

98 I recognize that it can be inferred that significant damage was caused to Tali after her helmet was dislodged and she was carried while her foot was caught in the stirrup. As I have indicated in dealing with the particulars of negligence alleged, these factors did not come into play by reason of any reason of breach of duty on the part of the defendants.

99 The plaintiffs’ case is also couched in terms of alleged breach by the defendants of obligations imposed by the Fair Trading Act 1987. The plaintiffs’ case is based upon six particular representations asserted to have been false. Insofar as the plaintiffs rely upon express representation those pleaded are scarcely supported by Ms Duncan’s versions of the abbreviated exchanges between herself and any of Mr and Mrs Lloyd or Kate and Brooke. It is not necessary to elaborate this matter as the plaintiffs’ claim on this basis must fail because none of the representations, whether express or implied, was false.

100 For the reasons given in relation to the assignments of negligence pleaded I find (adopting the specifications in paragraph 26 of the Statement of Claim) as follows:

(a) Safe and appropriate riding helmets, saddles and stirrups were used during the ride;

(b) Proper supervision was maintained during the course of the ride;

(c) Appropriate instructions were given to the riders prior to the ride;

(d) Qualified and experienced leaders were used during the ride;

(e) The horses were suitable for each of Tali, Jared and Vanessa;

(f) The ride was suitable for each of Tali, Jared and Vanessa.

101 The Amended Statement of Claim pleads a further cause of action in contract asserting that it was a condition implied in the contract between Ms Duncan on behalf of herself and the children and the defendants, that the latter would take precautions in respect of their participation in the trail ride so as to make it as safe as reasonable care and skill could achieve it. Particulars are supplied which are no different in substance from the allegations of negligence already discussed. The essence of the obligations of the defendants was to conduct its operation reasonably and I am unpersuaded that its conduct fell short of the standard in any way as particularized or at all. As revealed in the foregoing, I am not satisfied that the plaintiffs’ case succeeds on the issue of liability by reason of the crucial failure to establish negligence on the part of the defendants. It becomes unnecessary to deal with argument by the defendants asserting that liability for negligence was excluded in terms of contract either by incorporating what is portrayed on signs or, as pleaded in the cross claim, by agreement on the part of Ms Duncan to indemnify the defendants against any liability found against them. It follows further that the plaintiffs require no relief pursuant to the Contracts Review Act.

102 Whilst it was appropriate for counsel to pay attention to these issues, it would be recognized that they only arose if some breach of duty on the part of the defendants was first established.

103 Although for understandable reasons the course of evidence explored matters over an extensive range, the critical ones can be summarized in a relatively short recitation of findings concerning what happened up to the time of Tali’s accident.

104 It was a fine April Sunday and Ms Duncan wanted to engage in some activity different from going to the beach. She was aware that Tali in particular had a fondness, not unusual in children, for horses. They had previously experienced pony rides and she decided to seek a trail ride. She contacted an advertiser of such which was located in convenient proximity to the family home in Sydney’s southern suburbs.

105 Mr Ohlstein preferred the beach and was “dropped off” with arrangements that he be collected after the trail ride which Ms Duncan had booked over the telephone. Upon arrival she pursued her intention of engagement of herself and the children in a trail ride rather than any other form of horse riding activity.

106 To the extent that she had some knowledge of any special requirement of the children it was to ensure that they understood the general instructions which by that time she herself had heard. She asked for repetition to the children individually and this was done. The instructions were adequate to the occasion.

107 The horses selected were suitable for the individual riders. The equipment provided was appropriate to the occasion. The trail rider escorts were competent and adequate in number for a group of eight riders, allowing for the anticipation that it would divide into two groups at some stage of the journey.

108 Up to the time when Jared fell from his horse, as I have noted in Ms Duncan’s comment, they were enjoying the ride and there was no cause for anyone to anticipate any problem. Jared’s fall was incidental and gave rise to no reason to alter the conduct of the ride. After he remounted, neither he nor his mount was in any way involved in the incident which led to Tali’s injury.

109 Patch headed away from the trail as a result of the unanticipated snap at his rump by Hiawatha which was seen and described by Brooke. Brooke’s conduct in seeing to the security of the other riders, avoiding the risk that if she immediately galloped off after Patch other horses might follow, was a prudent decision. Tali’s helmet became dislodged, probably because of the angle at which it was struck either by a horse hoof or leg or other contact during the emergency, but not because it was the wrong size or not properly adjusted.

110 Tali’s footwear was appropriate for the recreational occasion and the safety stirrup was within reasonable sized parameters for her foot. Her foot being caught in the stirrup and the delay in its detachment from the saddle were not incidents derived from negligence on the part of the defendants. They were risks of the activity which did not fall due as a result of the lack of reasonable care or skill on the part of the operator or the employees of the trail rides.

111 No one could fail to be moved by the plight of a young girl seriously injured in any circumstances but in this case the evidence does not demonstrate that injury was caused by the fault of the defendants.

112 It follows that there should be judgment for the defendants in the action and judgment for the cross defendant on the cross claim.

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