Robinson v Vogelsang (No 2) - [2015] NSWSC 1942

Supreme Court

New South Wales

Case Name:	Robinson v Vogelsang (No 2)
Medium Neutral Citation:	[2015] NSWSC 1942
Hearing Date(s):	2 to 6 November 2015; 9 and 11 November 2015
Date of Orders:	18 December 2015
Decision Date:	18 December 2015
Before:	Beech-Jones J
Decision:	1. Judgment for the first and second defendants against the plaintiff. 2. All cross claims dismissed. 3. The proposed further amended statement of claim annexed to the affidavit of John Andriano sworn 29 October 2015 to stand as the Further Amended Statement of Claim. 4. The parties confer in relation to the appropriate costs orders; and 5. The proceedings be listed for directions on Monday, 8 February 2016 at 9.30am.
Catchwords:	NEGLIGENCE – plaintiff seriously injured when bucked off horse – plaintiff rendered tetraplegic - plaintiff riding horse on first defendant’s rural property in South Australia – no claim pressed against first defendant – second defendant owned horse – plaintiff staying as a guest on property – whether horse had propensity to buck or “pig-root” – whether second defendant falsely assured plaintiff that horse was a “gentleman” – whether paddock for horse riding was unsuitable for horse riding – whether second defendant encouraged plaintiff to loosen reins of horse too much – whether second defendant negligent in using “western style” saddle with one girth strap – whether alleged failings causative of accident – proceedings governed by Civil Liability Act 1936 (SA) – whether section 18 excludes operation of Part 6 and Part 7 in the case of personal injury caused by animals – identifying risk of harm. CROSS CLAIM – claim for indemnity by second defendant against insurer of first defendant – first defendant did not take out contents insurance which restricted scope of liability insurance – no indemnity for claim – dealings between first defendant and insurance agent acting on behalf of insurer – whether first defendant placed trust and confidence in cross defendant agent or merely instructed him to obtain minimal insurance necessary to satisfy financier – whether insurer estopped from denying indemnity because of actions of agent – whether insurance agent engaged in misleading conduct – whether first defendant would have sought further insurance if advised as alleged.
Legislation Cited:	- Australian Securities and Investments Commission Act 2001 (Cth) - s12DA, s 12GF - Civil Liability Act 2002 (NSW) - Part 1A - Civil Liability Act 1936 (SA) – s 3, s 4, s18, s 31, s 32, s 34, s 35 - Corporations Act 2001 (Cth) - s 1041H, s 1041I - Evidence Act 1995 (Cth) - s 64(3), s 135 - Insurance Contracts Act 1984 (Cth) - s 37, s 48 - Law Reform (Ipp Recommendations) Act 2004 (SA) - Wrongs Act 1936 (SA)
Cases Cited:	- Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 - Browne v Dunn (1893) 6 R 67 - Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453 - El Hayek v Vasic [2010] NSWSC…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] NSWSC 1942
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the matter of Robinson v Vogelsang (No 2), the plaintiff, Robinson, sought damages against the second defendant, Vogelsang, for injuries sustained when he was thrown from and seriously injured by a horse on Vogelsang’s property. The incident resulted in Robinson becoming tetraplegic. The first defendant, the property owner, was not subject to any claim by Robinson. The court had to determine whether Vogelsang was negligent in various respects concerning the horse and the circumstances of the incident.

The court addressed several issues, including whether the horse had a propensity to buck, if Vogelsang falsely assured Robinson that the horse was gentle, whether the paddock was suitable for horse riding, if Vogelsang encouraged Robinson to loosen the horse’s reins excessively, and if Vogelsang was negligent in using a “western style” saddle with a single girth strap. The court also had to consider whether these alleged failings caused the accident. Furthermore, the court examined whether certain sections of the Civil Liability Act 1936 (SA) precluded the operation of other parts in cases of personal injury caused by animals, specifically focusing on the identification of risk.

The court found that Vogelsang was not negligent in the matters alleged. The horse did not have a propensity to buck, Vogelsang did not falsely assure Robinson of the horse's temperament, the paddock was suitable, Vogelsang did not improperly advise Robinson on the reins, and the saddle was not negligently used. Additionally, the court ruled that Vogelsang’s actions did not cause the accident. The court also concluded that the relevant sections of the Civil Liability Act did not exclude the operation of other parts in this context. Consequently, Vogelsang’s cross-claim for indemnity against the insurer of the first defendant was dismissed.

Orders