Watson v Meyer

[2013] NSWCA 243

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Watson v Meyer [2013] NSWCA 243

Hearing dates:

6 June 2013

Decision date:

02 August 2013

Before:

Macfarlan JA at [1]
Ward JA at [2]
Gleeson JA at [87]

Decision:

1. Appeal allowed.

2. Judgment for the defendant entered in the proceedings below be set aside.

3. The matter be remitted to the District Court for re-trial on all issues.

4. Respondent to pay the appellant's costs of the appeal.

5. Vacate orders made as to the costs of the first hearing. Order that costs of the first hearing be determined by the trial judge hearing the matter on remittal.

6. The respondent to have a certificate under the Suitors' Fund Act, 1951, if qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL AND NEW TRIAL - adequacy of reasons

NEGLIGENCE - duty of care - breach - causation - whether risk obvious - whether risk voluntarily accepted - contributory negligence

PROCEDURE - whether Civil Liability Act defences can be relied on when not pleaded - whether adequate particulars of negligence

Legislation Cited:

Civil Liability Act 2002

Cases Cited:

Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329
Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257
Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409
Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373
Hehir v Harvie & Duffield [1949] SASR 77
Hrybynyuk v Mazur [2004] NSWCA 374; (2004) Aust Torts Reports 81-774
Jones v Bradley [2003] NSWCA 81
Mackenzie v The Nominal Defendant [2005] NSWCA 180; (2005) 43 MVR 315
Mifsud v Campbell (1991) 21 NSWLR 725
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Tomasetti v Brailey [2012] NSWCA 399
Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697
Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25

Category:

Principal judgment

Parties:

Lorna Watson (Appellant)
Alan Meyer (Respondent)

Representation:

Counsel:
Dr A S Morrison RFD SC with A L McSpedden (Appellant)
P Menzies QC with J R Wilson (Respondent)
Solicitors:
Graham Jones Lawyers (Appellant)
Stacks/The Law Firm (Respondent)

File Number(s):

CA 2012/147724

 Decision under appeal 

Jurisdiction:

9101

Citation:

Watson v Meyer

Date of Decision:

2012-04-16 00:00:00

Before:

Gibson DCJ

File Number(s):

DC 2010/233997

Judgment

1. MACFARLAN JA: I agree with Ward JA.

1. WARD JA: This is an appeal from the dismissal by Gibson DCJ of a claim by Ms Watson for loss and damages suffered as a result of a horse-riding accident. Ms Watson and Mr Meyer, who were then in a de facto relationship, were riding their respective horses together on Ms Watson's property on 5 October 2009 when Mr Meyer's horse (Wrangler) attacked Ms Watson causing her to suffer serious injuries. Ms Watson was astride her horse (Freckles) at the time. The incident occurred when the horses were close to a paddock in which there was a mare owned by Ms Watson (Aletist). Aletist was in oestrus at the time. Wrangler, a stallion, became difficult to control when approaching the paddock. After throwing Mr Meyer to the ground, Wrangler charged towards the paddock and in the course of so doing attacked Ms Watson.

1. Ms Watson contended, in her Amended Statement of Claim filed on 1 June 2011, that her injuries, loss and damage were caused by the negligence of Mr Meyer. She pleaded that Mr Meyer was a horse expert (at [1]) and that she had informed Mr Meyer that Wrangler was "a bit fresh" that day due to his feeding regime (at [3]). The various particulars of negligence were set out at [10] of the pleading. They included that Mr Meyer had instructed Ms Watson not to let Wrangler get past, after Wrangler had thrown Mr Meyer to the ground, when it was not safe for Ms Watson to get near to Wrangler (10(e)).

1. In issue at the trial were questions as to whether Ms Watson was aware, prior to the ride, that Aletist was in season; if so, whether she had told Mr Meyer that Aletist was in season; whether Ms Watson was aware of the danger of riding a stallion either into or close to a paddock in which there was a mare in season; the respective level of experience with horses each of Ms Watson and Mr Meyer had; and whether Wrangler had a previous bad disposition or tendency to become agitated or excited in the presence of other horses.

1. The trial judge found that none of the allegations of negligence had been established on the evidence. In relation to the allegation of negligence referable to the instruction given by Mr Meyer, her Honour concluded (at [200]) that, even if there had been negligence in the giving of such an instruction, there was not the necessary causal relationship between the giving of the instruction and the accident. Her Honour found that the accident would have happened regardless of the instruction given by Mr Meyer. In other words, her Honour found that the movement of Freckles, following Ms Watson's response to the instruction, was not a necessary condition of the harm occasioned to Ms Watson.

1. Her Honour went on to consider the statutory defences relied upon by Mr Meyer (including a defence under s 5G of the Civil Liability Act 2002 (NSW) that was not expressly pleaded but which her Honour considered was sufficiently raised on the pleadings) and any defence available at common law based on a voluntary assumption of risk. Her Honour concluded (at [241]) that the elements necessary for the statutory defence had been established, in the context referring, it seems, to a defence pursuant to ss 5F and 5G of the Act.

1. Having found for Mr Meyer on the issue of liability, her Honour then addressed the findings that she would have made as to contributory negligence and quantum of damages in the event that the liability findings had been otherwise. Her Honour considered that, had Mr Meyer had been liable in negligence, a reduction of damages in respect of contributory negligence by at least 80% would have been necessary having regard to Ms Watson's significant role in creating the risk of accident by putting the mares in the paddock in question, whether or not her evidence as to the relevant conversations had been accepted ([262]). On her Honour's finding that Ms Watson knew, but did not tell Mr Meyer on the day of the accident, that Aletist was in season, her Honour would have found the level of contributory negligence was 100%. The quantum of damages that would have been payable had negligence been established was assessed at $701,177.29, to be reduced either to zero or to $140,235.46 depending on whether the finding of contributory negligence was 100% or 80%.

1. Ms Watson's Notice of Appeal filed on 13 July 2012 raises numerous grounds of appeal relating to: the findings made by her Honour as to a conversation Ms Watson alleged had taken place in which she said she had informed Mr Meyer that a mare, Aletist, was in season (grounds 1-7); the findings as to Ms Watson's level of experience with horses and horse riding (grounds 8-9); the findings as to the prior disposition or behaviour of Wrangler (grounds 10-17); the adequacy of her Honour's reasons (grounds 18-24); the findings as to lack of fault on the part of Mr Meyer in relation to the giving of the instruction (grounds 25-27); the finding as to causation in the event that the giving of instruction had been negligent (ground 28); the finding as to contributory negligence (grounds 29-30); and the ruling that Mr Meyer could rely on a statutory defence which had not been pleaded (ground 31).

1. The complaint made by Ms Watson as to inconsistencies in her Honour's factual findings, if accepted, is said to be such as to warrant the matter being remitted for a new hearing on all issues.

Background

1. From 2005, Ms Watson was the owner of a property in Ebenezer on which, over the period from December 2008 during most of which time Mr Meyer was living with her on the property, she had kept a number of horses. Those horses included her 21-year old gelding (Freckles) and two mares (Aletist and Butterfly). Also kept on the property at the time of the incident was Mr Meyer's eight-year old stallion, Wrangler. Ms Watson and Mr Meyer regularly rode together on her property. Ms Watson usually rode Freckles and Mr Meyer usually rode Wrangler.

1. In the period of about four months leading up to the incident, Mr Meyer had only stayed overnight at Ms Watson's property on one or two occasions, as he was then working at a nearby property and staying there most nights. However, he regularly visited the property to feed the horses.

1. For about two to three months prior to the incident, Aletist and Butterfly had been agisted on a neighbouring property. However, a week before the incident Ms Watson had brought the two mares back to the property. She put them into a large paddock, referred to variously at the hearing as "the arena paddock" or "Aletist's paddock", at the western end of the property. Ms Watson's evidence was that she became aware that Aletist was in season at the time that she brought Aletist back to the property. She said that she told Mr Meyer that Aletist was in season in a telephone conversation the night that the horses had been moved back to the property and again in a conversation with him at the commencement of their ride on 5 October 2009. Mr Meyer denied that he had been told that Aletist was in season.

1. It is necessary to describe the circumstances in which Wrangler attacked Ms Watson. At about 2.30 pm on 5 October 2009, following what her Honour described as a conversation of a "very brief nature", Ms Watson and Mr Meyer, riding Freckles and Wrangler respectively, set out from a paddock near the homestead on Ms Watson's property. They headed in a westerly direction along a track that led to the arena paddock. Aletist and Butterfly were in the arena paddock on the other side of a gate at the end of the track.

1. As they approached the gate, Wrangler was ahead of Freckles on the track. Wrangler became difficult to control. Mr Meyer described his horse as moving towards the gate like a locomotive. It was accepted that this was likely to be due to Wrangler having become aware of the presence, on the other side of the gate, of a mare in season. Mr Meyer was able to bring Wrangler under control. He turned Wrangler back towards the homestead and facing away from the arena paddock. There was a short conversation between Mr Meyer and Ms Watson. Heading back towards the homestead paddock, Wrangler passed Freckles so that Wrangler was again ahead of Freckles on the track (but this time further away from the arena paddock).

1. Wrangler then reared and threw Mr Meyer to the ground. As he was getting up from the ground Mr Meyer called out to Ms Watson. Ms Watson said that Mr Watson had said to her "don't let him get past". Mr Meyer denied that those were his words but said that he had called out to Ms Watson "hold him", which both he and her Honour accepted amounted to much the same thing. There was evidence by Mr Meyer that Wrangler was momentarily still at the time he gave the instruction (at Black 438U). Ms Watson's description of the incident did not make reference to any stopping of movement by Wrangler (Black 44V-W).

1. At the time that Mr Meyer fell from his horse, if one were looking from the arena paddock gate back along the track towards the homestead paddock, Freckles was on the left hand side of the track facing across the track towards a different gate on the southern side of the track. It was accepted that Freckles was not completely blocking the track but was nevertheless taking up part of the width of the track. Whether Freckles was directly in Wrangler's path as Wrangler turned towards the arena paddock is not clear. After having thrown Mr Meyer, Wrangler may have been closer to the right hand side of the track and then changed course towards Freckles as he charged back to the paddock.

1. Ms Watson says that in response to Mr Meyer's instruction she squeezed Freckles with her heels and that Freckles moved one foot forward towards the centre of the track. Ms Watson had some doubt as to the precise nature of the movement made by Freckles but was clear that he had put his foot forward. Two things do not appear to have been disputed: first, that at this stage of events Freckles was closer to the arena paddock (and hence closer to Aletist) than was Wrangler and, second, that Freckles made at least a movement with his foot in the direction of the centre of the track.

1. The significance of such a movement, in considering the circumstances of the accident, was potentially twofold: first, it placed Freckles at least a step closer to the path of Wrangler, as Wrangler charged towards the arena paddock (and might have caused Wrangler to perceive that Freckles was an obstacle in his way); second, it may have caught Wrangler's attention and acted as a "red rag to a bull". What effect the movement had on Wrangler is essentially a matter for speculation. It was suggested in the course of argument, for example, that Wrangler might have seen Freckles as "competition" in his quest to get to Aletist (and that this might have been the explanation for the opinion expressed by one of the experts, Mr Lawson, that the incident could have been avoided had Ms Watson chosen to ride a mare instead of a gelding). It was also submitted for Ms Watson, on the question of causation, that the fact that there was time for Freckles to move a step forward meant that there would also have been time for Freckles to move a step away from the centre of the track (although at this stage it is not clear whether it would have been possible for Freckles to move back off the track since his rear was "up on if not right next to" the white tape on the side of the track).

1. There was a distance of some 10-15 metres between where Mr Meyer was thrown off his horse and Freckles at that point. Wrangler then charged back towards the arena paddock and bit Ms Watson on the left leg as he was so doing. It is not clear whether Freckles was stationary at the time Wrangler latched onto Ms Watson's leg or whether Freckles had by then also started to gallop towards the arena paddock (such that Ms Watson was bitten while the two horses were galloping side by side in the same direction towards the gate). Ms Watson's account (at Black 45U; 46E) was that she had stopped on Freckles and was standing still; that Wrangler "spun around" and started charging back in her general direction; she caused Freckles to move a step forward and as Wrangler got a bit closer "he snaked his head around ... moved his head around to the horse's right hand side which meant that he was lining [her] up directly ... kept coming at the same speed and took hold of [her] leg ..." (Black 45Q-48O). This suggests that Wrangler attacked her before Freckles started galloping; consistent with her evidence that Wrangler's momentum took her and Freckles in the same direction (Black 48R-S).

1. It is not disputed that the two horses were galloping side by side towards the arena paddock for a time while Wrangler had hold of Ms Watson's leg and that Ms Watson was dragged between the horses before Wrangler released her leg and she fell to the ground. Ms Watson crawled under a fence out of the way of the horses. She was seriously injured. Wrangler was subsequently put down.

Ms Watson's pleaded case

1. Ms Watson's amended pleading contained nine particulars of negligence on the part of Mr Meyer:

(a) Failing to properly and/or adequately control his horse Wrangles [references throughout to "Wrangles" are to be read as references to Wrangler].

(b) Allowing the Plaintiff to ride her horse in the vicinity of Wrangles when it was not safe to do so.

(c) Allowing his horse Wrangles to be close to the horse Aletist when he knew that Aletist was in season.

(d) Allowing the Plaintiff and her horse to ride together with Wrangles when he knew or should have known that Wrangles was "fresh" and had been fed grain recently so that Wrangles was "pepped up."

(e) Instructing the Plaintiff "don't let him get past" after Wrangles had thrown him to the ground when it was not safe for the Plaintiff to get near to Wrangles.

(f) Failing to direct the Plaintiff to immediately leave the area after Wrangles started to become excited.

(g) Failing to direct the Plaintiff to immediately leave the area after Wrangles had thrown the Defendant to the ground.

(h) Failing to take reasonable care for the safety of the Plaintiff.

(i) Approaching, or continuing to approach, Aletist, knowing that Wrangler had previously become excited/agitated in the presence of other horses and in particular mares.

1. Ms Watson's case as particularised was thus that Mr Meyer had actual knowledge that Aletist was in season ([10(c)]). There was no express allegation (either in the actual pleading, which did not refer to Aletist's condition at all, or in the particulars) that Mr Meyer ought to have known that Aletist was, or might at that time of year be, in season. The primary judge noted (at [155] and elsewhere in her reasons) that the case was not put on the basis of constructive notice. Further, her Honour noted (at [10]) that an application by Ms Watson during the trial to amend the statement of claim (to plead that, if Mr Meyer did not know that Aletist was in season, he ought to have known of the potential danger) had been withdrawn.

1. It was submitted on appeal by Senior Counsel appearing for Ms Watson (Dr Morrison RFD SC) that the particular of negligence contained in paragraph 10(d) was sufficient to raise the issue as to whether it was appropriate for Mr Meyer to ride a grain fed stallion with another horse in the vicinity of mares in October, in the context of his submission that her Honour (at [10]) had elided the distinction between actual or constructive knowledge as to whether Aletist was in season and the general question as to whether it was appropriate to take a stallion into a paddock with mares in October. However, paragraph 10(d) makes no reference to the presence of mares being in the vicinity of the horses nor does it include any reference to the time of year at which the horses are being ridden. Nor does the particular of negligence in paragraph 10(i) put in issue whether Mr Meyer knew or ought to have known that riding Wrangler in the vicinity of mares in October, when mares might be in season, was a general danger to a riding companion. There is no basis for the proposition that Ms Watson's claim, as pleaded and particularised, raised any relevant contention of constructive knowledge on the part of Mr Meyer.

Appeal Grounds

Grounds 1 to 7 - the disputed conversation(s)

1. As noted above, Ms Watson gave evidence that there were two separate conversations in which she told Mr Meyer that Aletist was in season: the first a week before the incident and the second on the day of the incident. Her Honour did not accept that the second conversation had taken place at all and did not accept that in the first conversation Ms Watson had told Mr Meyer that Aletist was in season. The complaint made on appeal by Ms Watson is that there was no reason given for (or evidence to support) the conclusion as to the second conversation and that her Honour made inconsistent findings as to at least one of the alternative reasons on which her Honour based her conclusion that the first conversation did not include the statement said to have been made as to Aletist being in season. There is a challenge to the adequacy of her Honour's findings in this regard.

1. As to the first conversation, Ms Watson said that on the afternoon of the day she brought Aletist and Butterfly back to the property she had called Mr Meyer and said words to the effect:

Aletist is in season, just so you know. I've put them [Aletist and Butterfly] at the far paddock at the back of the property, the farthest away from Wrangler. Is that okay"

and that Mr Meyer had responded that that was fine.

1. As to the second conversation, Ms Watson says that she asked Mr Meyer on the day of the incident whether Wrangler would be OK "with Aletist up there [i.e., the arena paddock], she's in season don't forget" and that Mr Meyer had said that Wrangler should be fine. Ms Watson added that she had said to Mr Meyer that the mares could go into a spare paddock before they went up to the arena paddock if he liked and that Mr Meyer had again said it would be fine.

1. Her Honour's conclusions as to the two conversations appear at [103]-[104] of her reasons. At [103], her Honour said:

I am satisfied that the plaintiff did not appreciate the dangers of a stallion being ridden into a field where a mare in season was to be found; and that the conversation she alleges took place on the day of the accident never occurred at all. I am similarly satisfied that any conversation the plaintiff had with the defendant about seven days beforehand, on the day she brought Aletist home from agistment, did not include any reference to Aletist being in season, either because the plaintiff did not notice that Aletist was in season, or because she did not appreciate its significance. Taking all of the above into account, the plaintiff has not proved, on the balance of probabilities, that either of the conversations she deposed to took place.

1. Relevantly, her Honour commenced with the finding that Ms Watson "did not appreciate the dangers of a stallion being ridden into a field where a mare in season was to be found". That was the sole reason proffered for the following conclusion, namely that the second conversation had not occurred. The unstated logic behind that conclusion must be that, if Ms Watson did not appreciate the significance of riding a stallion into a field where there was a mare in season, then it was unlikely that she would have told Mr Meyer that Aletist was in season and unlikely that she would have asked Mr Meyer if Wrangler would be all right and whether the mares should be moved to another paddock. While it does not necessarily follow that Ms Watson would not have made any reference to Aletist being in season unless she was aware of a risk of some kind arising from that fact, there is more force to the proposition that it is unlikely that Ms Watson would have queried whether Wrangler would be "all right" in connection with a suggestion that the mares could be moved to another paddock unless Ms Watson perceived that there might be a problem of some kind occasioned by the presence of the mares in the arena paddock.

1. However, the difficulty with the finding as to the non-occurrence of the second conversation is that it is based on a factual finding that is clearly inconsistent with a later factual finding. At [240]), her Honour found that it was clear that Ms Watson:

... was well aware of the risks of horse riding and in particular the risk of riding into a paddock containing a mare which she not only knew to be in season but which she had placed there herself without prior consultation with [Mr Meyer].

1. Since the sole basis on which her Honour appears to have concluded that the conversation Ms Watson alleged took place on the day of the accident had not occurred at all was that Ms Watson had no appreciation of the dangers of riding a stallion into a field where there was a mare in season, the inconsistency in the factual findings on that issue points to an error in the process of fact finding.

1. As to the earlier conversation, her Honour was satisfied that there was no reference in that conversation to Aletist being in season "either because the plaintiff did not notice that Aletist was in season, or because she did not appreciate its significance". At the outset, there is an obvious difficulty in determining which (if not both) of the two possibilities was accepted by her Honour. In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA noted (at [56]) that this Court should not be left to speculate as to the basis of a particular finding, there citing Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 280) where McHugh JA (as his Honour then was) applied what was said in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701, 713.

1. As to the first of the alternative reasons, Dr Morrison notes that Ms Watson was not cross-examined to suggest that she had not observed that Aletist was in season and that although it was contended for Mr Meyer, in submissions at the hearing, that the evidence that Ms Watson had observed Aletist to be in season was a recent fabrication (having regard to the matters noted in her Honour's reasons at [76] and [83]), this was not put to Ms Watson. There was no dispute that Aletist was in fact in season at the time of the incident.

1. Her Honour does not seem to have reached a concluded view as to this issue. At [94], her Honour expressed the view that there was real doubt as to whether Ms Watson had in fact observed those signs (and as to whether Ms Watson would have appreciated the significance of those signs had she in fact observed them) but made no express finding. If the first alternative reason given at [103] is to be read as a finding that Ms Watson did not in fact notice that Aletist was in season, then there is force to a complaint that no reasons were given for the rejection of Ms Watson's evidence to the contrary. True it is that her Honour referred to matters that caused her real doubt about that evidence, but her Honour was nevertheless prepared to accept Ms Watson's not unrelated evidence as recorded at [93]. While her Honour expressed the need for caution in accepting Ms Watson's evidence as to the level of her experience in horse riding, her Honour did not suggest that any such caution should be applied to Ms Watson's evidence that she had observed Aletist to be in season.

1. As to the second of the alternative reasons given at [103] (namely, the possibility that Ms Watson did not appreciate the significance of the fact that Aletist was in season), again this suffers from the difficulty that this is inconsistent with the later finding that Ms Watson was well aware of the risks of riding into a paddock with a mare that she knew to be in season.

1. Counsel appearing on the appeal for Mr Meyer (Mr Menzies QC) submits that there was no inconsistency, since the finding at [240] was in the context of her Honour considering the defences to Ms Watson's claim, for the purpose of which her Honour necessarily proceeded upon an assumption of liability (and hence an acceptance of Ms Watson's evidence). However, while [238] (addressing the common law defence of volenti) is clearly predicated on the hypothesis that the earlier findings as to the relevant conversations were incorrect, the conclusion in paragraph [240] (addressing the statutory extension of the volenti defence) turns on matters going to Ms Watson's knowledge of horses and her experience as a horsewoman. It is not an hypothetical conclusion predicated on the assumption that the disputed conversations had taken place.

1. In Pollard, McColl JA referred (at [59]) to the necessity for the primary judge to enter into the issues canvassed and to explain why one case is preferred over another (referring to what had been said by Santow JA in Jones v Bradley [2003] NSWCA 81 at [129] and to Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 at pp 377-378). See also Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409 at [62] and Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 at [52]. There was no such engagement with the competing cases at trial as to the appreciation (or lack thereof) by Ms Watson of the significance of a mare being in season. Dr Morrison notes that Ms Watson's case was that she was aware of the significance of a mare being in season but had insufficient knowledge about the behaviour of stallions to know whether this made it unsafe for Wrangler to ride through a paddock where there was a mare in season. The distinction between putting a stallion near a mare in season and taking a stallion into a paddock where there was a mare in season, which might explain the seemingly inconsistent answers given by Ms Watson in cross-examination, as recorded at [92]-[93], was not addressed by her Honour.

1. The fact that Mr Menzies seeks to support her Honour's rejection of Ms Watson's evidence of the conversations on the basis that her Honour placed reliance on the admissions of Ms Watson recorded at [89] and [93] of the judgment, and had therefore reasoned that there was no cause for Ms Watson to have made the statements she asserted she had made, highlights the difficulty with the inconsistent finding at [240] as to Ms Watson's awareness of the very matters denied by Ms Watson in the passages reproduced at [89] and [93].

1. At [104], her Honour identified additional problems in Ms Watson's assertion that the disputed conversations had taken place. First, her Honour considered that the conversation a week before the incident would not amount to an appropriate provision of information about riding dangers a week later to Mr Meyer who was living away from the property and had returned only on the day of the accident. That observation might go to whether there was an adequate warning of a perceived risk but does not logically go to whether the conversation had taken place at all. Second, as to the conversation which took place when the parties were preparing to set off on their ride, her Honour said "[t]his is not a conversation of reliance; it is a discussion between two experienced horse riders of a very brief nature, which is relevant to the issue of both volenti and obvious risk". Again, whatever significance might be attached to the brief or casual nature of the pre-ride conversation, this does not go to the likelihood that the conversation had in fact occurred as Ms Watson had contended. Neither of the additional matters referred to in [104] provides a logical basis for the conclusion that the conversations did not take place, whether at all or as alleged.

1. Whether or not Ms Watson told Mr Meyer of the fact that Aletist was in season was critical to allegations of negligence based on Mr Meyer's awareness of the risk of riding Wrangler close to Aletist. Her Honour's reasons make clear that the rejection of Ms Watson's evidence in respect of the conversations was determinative of the allegations of negligence particularised at paragraphs 10(a) (see [162); 10(b) (see [174]); and 10(c) (see [176]).

1. In circumstances where at least one of the reasons for rejecting Ms Watson's version of the relevant conversations is directly inconsistent with a later finding and the other reason is not the subject of an express finding, the basis for the findings that there was no negligence as alleged in particulars 10(a), (b) and (c) is not adequately explained in the reasons. To the extent that the findings as to the negligence particularised in paragraphs 10(d), (h) and (i) depend on actual knowledge on the part of Mr Meyer that Aletist was in season, those findings suffer from the same problem.

1. For completeness, I note the submission by Dr Morrison that it was glaringly improbable that, in circumstances where Mr Meyer knew of the obvious and potential danger in riding through a paddock where mares were in season (T 395.15-17) and knew that two mares were in the arena paddock through which he intended to ride (T 391.28-.34), Mr Meyer would have ridden towards the paddock without knowing, being told or inquiring whether one or both of the mares was or were in season. I am not persuaded that this is the inescapable conclusion one should draw from the evidence to which Dr Morrison referred. One might equally say that if it was unlikely that an experienced horse-rider would knowingly ride a stallion into or towards a paddock where a mare was in season, then an available inference would be that Mr Meyer did not know (and had not been told) that there was a mare in the arena paddock that was in season. Her Honour's acceptance of Mr Meyer's denial of the conversations is not glaringly improbable. Nevertheless, the reasons that were given by her Honour for the rejection of Ms Watson's evidence as to the conversations were not adequately articulated and, in one critical respect, were inconsistent with her Honour's own findings.

1. Grounds 1-6 are therefore made out. Ground 7 relates to the import of the finding that there was no conversation as to Aletist being in season on the common law volenti defence and will be considered later in these reasons.

Grounds 8-9 - Ms Watson's previous horse-riding experience

1. Ms Watson contends that her Honour erred in overstating the evidence as to her horse-riding experience and misstating that of Mr Meyer.

1. As to the former, in the context of addressing submissions made against Ms Watson's credit, her Honour expressed the view that Ms Watson had minimised her prior experience with horses. Her Honour concluded (at [96]) that Ms Watson "had been an experienced horsewoman since her early years", having taken into account that Ms Watson had owned horses; had ridden in races; had worked as a trail guide; had worked at "Horselands"; and that horses were Ms Watson's "main interest in life". It was open on the evidence for her Honour to conclude that Ms Watson had had sufficient experience with horses to be aware that stallions might become excited or agitated or difficult to control in the presence of mares in season. I do not accept that her Honour erred in making the findings she did as to Ms Watson's level of experience with horses.

1. As to the ground of appeal relating to Mr Meyer's evidence, it was not apparent how it was suggested that her Honour had misstated or understated his experience.

1. Grounds 8-9 are not made out.

Grounds 10 - 17 - prior disposition of Wrangler

1. These grounds of appeal relate to findings by her Honour as to matters relied upon by Ms Watson for the allegation of negligence by reference to particular 10(i). Three matters were relied upon by Ms Watson in this respect: an incident, while Mr Meyer was riding with his former wife, Ms Fenner, in which it was said that Wrangler had previously attempted to mount Ms Fenner's mare (referred to as the Braidwood incident); an incident in which Wrangler had got out of a paddock and had later been found with mares in another paddock (the paddock escape incident); and an incident at a horse show said to demonstrate bad behaviour in the presence of other horses, "particularly mares" (the Wingadene horse show incident).

1. At [105], her Honour accepted that if Mr Meyer had knowledge of prior bad disposition of Wrangler and of a tendency of Wrangler to become excited in the presence of other horses (whether mares or not) then "that would be a different basis upon which negligence could be asserted" and (at [106]) that a finding as to prior bad disposition could be independent of any finding as to whether or not Mr Meyer knew that Aletist was in season.

1. Having considered the evidence relating to those incidents, as well as other evidence put forward in relation to Wrangler's disposition, her Honour did not accept that the evidence as to those three matters led to a conclusion that Wrangler had a prior history of misbehaviour. Her Honour concluded that all the evidence pointed to Wrangler being, "for a stallion", a well-behaved horse. Complaint is made as to the basis on which her Honour dismissed the three incidents relied upon as showing evidence as to bad disposition.

1. As to the Braidwood incident, complaint is made as to the assessment by her Honour that Ms Fenner had displayed hostility towards Mr Meyer in giving her evidence; as to the significance her Honour attached to the evidence of another person (Mr Boileau) who was present at the brumby chase when the incident occurred but did not observe the incident; and as to the weight to be placed on the evidence of Ms Watson's expert, Mr Sanna, in relation to his assessment of the incident.

1. Her Honour's observation or conclusion as to Ms Fenner's hostility to her former husband is explained by her Honour by reference to Ms Fenner's dismissive attitude towards Mr Meyer's claimed expertise with horses and her criticism of Wrangler's training. Her Honour had the benefit of observing Ms Fenner in the witness box and her assessment of the witness is one that was not unsupported by reasons. I accept that the minor nature of the injury suffered by Ms Fenner would not be probative of whether or not the incident had occurred as she had said and that her Honour's explanation of the incident as the horse simply rearing because another horse had come too close could be no more than speculation. However, there was other evidence (from Mr Boileau and from Mr Sanna) that supported the findings made by her Honour in relation to this incident.

1. As to the paddock escape incident, her Honour accepted Mr Meyer's evidence that a gate had been left unlocked and referred to the evidence of Mr Sanna (at Black 153O) that most stallions would have behaved in this way as being evidence of an expectation that a stallion would get inside a paddock if he could get up against mares in that paddock. Her Honour described Ms Fenner's evidence or account of the event as "overly dramatic". The evidence of Mr Meyer was that when Wrangler was found he was "just grazing" and not behaving in an excited or agitated fashion (Black 335U). Dr Morrison submits that the evidence of Mr Sanna was misinterpreted, having regard to the fact that Wrangler must have jumped a fence to reach the mares (and noting Mr Meyer's concession at Black 335R-S to that effect). Certainly, Mr Sanna's evidence was that whether Wrangler's behaviour in this incident showed that Wrangler was of an "unruly disposition" depended on how he had got out of the paddock (Black 154C) but he nevertheless considered that it would be expected for Wrangler to get inside a paddock if he could get up against the mares. Mr Sanna's written opinion was based on the assumption that Wrangler not only got out of his paddock but "was subsequently difficult to restrain after getting very agitated". There was a dispute as to whether the latter was the case.

1. As to the Wingadene Show incident, Ms Fenner's evidence was that Wrangler had been rearing, jumping up and down, calling out all the time and very restless. Her Honour noted Mr Sanna's description of Wrangler's conduct as normal for stallions (Black 155K) and said that Wrangler had still been well-behaved enough to participate in events and to win a prize ([136]). Her Honour also referred to other evidence about Wrangler's behaviour at pony club shows. Her Honour concluded that the claims in relation to the Wingadene Show incident had not been made out.

1. It is submitted by Dr Morrison that Mr Sanna's oral evidence was based on incorrect assumptions as to Wrangler being tied to a horse trailer (Black 154W). Nevertheless, before being asked to make that assumption, Mr Sanna had referred to the description of Wrangler's behaviour at the Wingadene Show as leading him only to the view that Wrangler was "not a dobbin", saying that it was obvious he had a propensity to get excited and in certain situations not to be very quiet and very amenable but that in other situations he was very quiet (Black 154S-V). In his written opinion he had referred to this incident as evidence that Wrangler "was not a quiet amenable stallion" (Blue 5D) based on the reports that he was "screaming and rearing for most of the day", that account being disputed by Mr Meyer.

1. Her Honour also referred to other evidence which she considered inconsistent with Wrangler being a horse of a troublesome nature, including: photographs of Ms Fenner's then 10 year old nephew riding Wrangler; Ms Fenner permitting Wrangler to remain on her property with other horses in season; and Mr Meyer riding Wrangler in the vicinity of other horses while on Ms Fenner's property without Wrangler causing any problems; as well as evidence of Mr Chant, who had agisted Wrangler on his property for two to three months, and evidence of Mr Burgun, describing Wrangler's participation in pony club rallies, who considered the horse to be reserved and under control.

1. Mr Sanna's evidence was that a significant percentage of stallions could be difficult and unruly (Blue 5E) but placed emphasis on the Braidwood incident as pointing to Wrangler falling in that category. Mr Menzies submits that the allegation of negligence particularised at 10(i) required Ms Watson to establish that Wrangler had such a "core" disposition that he should not have been allowed to approach Aletist (or a mare) at all and that her Honour's rejection of such a proposition was one that was open on the evidence. I agree. Whether the three incidents relied upon by Ms Watson are viewed independently or collectively, it was open to her Honour, in light of the conflicting evidence summarised above, to conclude that the allegation of negligence (particularised at paragraph 10(i)) was not made out. I am not persuaded that there was error in the findings as to the alleged pre-disposition to "bad" behaviour on the part of Wrangler.

1. Therefore, in my opinion grounds 10-14 and 17 have not been made out. While grounds 15 and 16 have been made out, the conclusion as to the particular of negligence in paragraph 10(i) did not turn on those matters.

Grounds 18 - 23 - Adequacy of reasons

1. Broadly speaking, grounds 18 to 23 of the grounds of appeal challenge the adequacy of her Honour's reasons for various findings and for preferring Mr Meyer's version of events to that of Ms Watson. I have already addressed the issue as to adequacy of reasons (and inconsistency) in relation to the findings at [103] and [240]. Adverse credit findings were made only in relation to the perceived minimisation of Ms Watson's horse-riding experience and her Honour made clear the basis for the caution she considered necessary in approaching Ms Watson's evidence in that respect.

Grounds 25-27 - Grounds relating to "fault"

1. Ms Watson contends that her Honour erred in finding that Mr Meyer's conduct in giving the instruction he did was not a breach of a duty of care owed to her (ground 25); that her Honour erred in failing to consider whether Mr Meyer was in breach of his duty of care "in permitting his stallion to approach the mares" (ground 26); and that her Honour erred in finding that Ms Watson did not realise the danger of riding a stallion into a paddock where there was a mare in season "and yet found [Ms Watson] was an experienced horse person" (ground 27).

1. As to ground 27, I have already concluded that her Honour erred in the making of inconsistent findings as to the issue of Ms Watson's awareness of the said danger. Therefore, ground 27 is made out.

1. As to ground 26, insofar as this suggests that there was an allegation of negligence by reference solely to approaching the mares, this misstates the particulars of negligence. The first part of what is particularised at 10(i), (i.e., negligence in "approaching" Aletist), is not relevantly different from the conduct particularised at 10(c), namely allowing Wrangler to be close to Aletist. However, what both of those allegations include is reference to a state of knowledge: that Aletist was in season (in 10(c)) and that Aletist had previously become excited/agitated in the presence of other horses, particularly mares (in 10(i)). Her Honour addressed those allegations in the context of the alleged knowledge on the part of Mr Meyer. Her Honour cannot fairly be criticised for not considering an unpleaded allegation of negligence in permitting Wrangler to approach the mares at all.

1. As to ground 25, her Honour did not make specific findings as to what was said by Mr Meyer, concluding (as was not really disputed) that the two versions of what was said to have been Mr Meyer's instruction amounted to the same thing. Her Honour found that giving this instruction was not negligent. The complaint made on appeal includes a complaint that her Honour did not articulate reasons for so concluding.

1. Her Honour referred at [194] to the evidence of Mr Sanna to the effect that attempting to control a horse in the position of Wrangler was not dangerous depending on how quickly the horse could be controlled. Mr Sanna's evidence (at Black 141 B) was, however, predicated on the horse being stationary. He said that if the horse was "already on the move ... sort of on the run" then it would be dangerous to try and attempt to grab hold of the reins (see also Black 141 L). Not only was there not a finding that Wrangler was standing still at a time when Ms Watson could have taken hold of Wrangler's reigns but it is submitted that such a finding would have been inconsistent with the evidence that, at the time the instruction was given, Ms Watson was some 10 to 15 metres away.

1. Mr Meyer accepted that what he had asked Ms Watson to do, essentially, was to act as a block between Wrangler and the mares (Black 440C-E). Dr Morrison relies on the giving of the instruction by Mr Meyer as a breach of duty of care on the basis that what Ms Watson was asked to do was dangerous, relying on Hehir v Harvie & Duffield [1949] SASR 77 and Hrybynyuk v Mazur [2004] NSWCA 374; (2004) Aust Torts Reports 81-774. It is submitted that the risk of being injured by a charging horse was a significant risk and that a reasonable person in the position of Mr Meyer would not have requested Ms Watson to put herself in danger. Insofar as Mr Meyer said that he did not have time to process all the relevant information (Black 440H) and did not have time to consider Ms Watson's safety (Black 442B), Dr Morrison points to Mr Meyer's evidence that the reason he asked Ms Watson to assist was to "defuse the situation so that I could continue taking him back in the direction where we were headed which was away from the mares and the potential harm and danger to the horses" (Black 441U). Dr Morrison submits that the failure of Mr Meyer to consider Ms Watson's safety in those circumstances amounted to a breach of duty of care.

1. Mr Meyer's evidence was that if he had known that Aletist was in season he would not have ridden Wrangler to the arena paddock (Black 351P-S). He concluded from the fact that Wrangler had behaved as he had done (i.e., becoming difficult to control and then rearing up) that one or more of the mares in the arena paddock must have been in season (Black 353R-W; 403M-R; 404L) and that Wrangler had noticed and responded to this. Mr Meyer said he knew that Wrangler wanted to head back towards the mares (Black 439C). He had already experienced Wrangler charging "like a locomotive" towards them (Black 353R) and it had taken three attempts to head Wrangler back to the homestead (Black 354D-K). He had made the decision to return to the homestead and abandon the ride (Black 354N).

1. When he was thrown from his horse, Mr Meyer obviously foresaw the risk that Wrangler would charge back towards the mares; hence his stated concern to "defuse" the situation. In those circumstances, the giving of an instruction to Ms Watson not to let Wrangler get past, which logically could only be complied with by physically restraining Wrangler (say, by grabbing his reins) or by blocking his path, was one that carried with it a reasonably foreseeable and significant risk of harm to Ms Watson. Mr Meyer, of the two, had the superior expertise with horses and the greater familiarity with Wrangler's temperament and behaviour. It was reasonably foreseeable that Ms Watson would comply or try to comply with his instructions.

1. I consider that there was a duty of care not to give an instruction that would be likely to put Ms Watson at an increased risk of danger and that Mr Meyer was in breach of that duty of care, notwithstanding that the decision he made was a split second decision. Her Honour's conclusion on that issue was in my view incorrect. However, for the reasons below, I do not consider that her Honour's ultimate conclusion on this allegation of negligence was incorrect.

Ground 28 - causation

1. Ground 28 relates to the finding her Honour made as to causation on the assumption that the allegation of negligence in particular in 10(e) had been made out. Her Honour considered at [193] that it was possible for Wrangler to have passed Ms Watson whatever action she took and that it was most likely that there was little Ms Watson could have done once Wrangler decided to attack her. Her Honour went on to say at [195] that Ms Watson did not have time to react and her horse had barely moved.

1. Dr Morrison submits that the finding that the accident was "about to happen by reason of the fact that the plaintiff and defendant had ridden towards the paddock in which the plaintiff had put a mare in season" (at [198]) is an erroneous finding. Reliance is placed on the opinion of Mr Lawson that if Ms Watson "had not tried to block the loose stallion with her gelding most likely conflict would not have risen to the level it did" (Blue 72K). Mr Lawson's opinion was that Ms Watson's action "in putting her gelding between the stallion and the mare added to the conflict" (Blue 71T). By conflict he refers to what he described as the likely conflict between the two male horses for the attention of the mare in season. However, Ms Watson's evidence went no further than that Freckles had moved one foot forward.

1. It is submitted by Dr Morrison that the evidence supports the conclusion that there was a strong causal link between Freckles having moved (in such a way as to attract the attention of Wrangler) and the injury sustained by Ms Watson; and that her Honour should have concluded that it was highly likely that if Ms Watson had remained sitting passively on her horse, then Wrangler would have gone past her and Freckles without incident.

1. However, the question whether the single step forward caused Wrangler to attack Ms Watson is a matter for speculation. It was open to her Honour to conclude that the giving of the instruction was not a necessary condition of the harm occurring. Mr Sanna's opinion, for example, was that the biting of Ms Watson's leg was "just a random act of a horse that had sort of just lost it a little bit" (Black 155X).

Grounds relating to contributory negligence

1. Grounds 29 and 30 relate to the findings of contributory negligence. Ground 29 contends that the alternative finding of 80% is excessive, given that it is made on the assumption that Ms Watson did have the conversation with Mr Meyer on the day of the incident, and was made without stating reasons therefor. Ground 30 contends that her Honour erred in her finding of contributory negligence having found that Ms Watson did not warn Mr Meyer of a danger of which she was not aware.

1. As to the latter ground, this misstates the basis of the finding of contributory negligence at [254]-[258]. The basis for that finding was that Ms Watson was wholly responsible for the decision to put the mares in the arena paddock in which she and the defendant had been regularly riding for the past eight months; was the owner of the property; was responsible for the transfer of the mares; and had formed the decision to put them in the paddock without consulting the defendant. These were not references to a lack of warning to Mr Meyer of a danger of which Ms Watson was not aware but, rather, to a finding as to Mr Meyer's lack of awareness that Aletist was in season that meant he was not in a position to prevent that risk eventuating.

1. Her Honour found that the negligence of Ms Watson (assuming her failure to tell Mr Meyer of Aletist's condition) was to the standard considered to be appropriate for a finding of 100% contributory negligence (relying on Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25 and Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257 at [132] for the proposition that an assessment of contributory negligence for the purposes of s 5S of the Civil Liability Act could be 100%).

1. At [257], her Honour considered that even if Ms Watson's evidence as to the conversations was accepted, Ms Watson still failed to take due care for her own safety by creating the danger in the first place and (at [262]) that in those circumstances assessed contributory negligence at 80% on the basis that this was comparable to Mackenzie v The Nominal Defendant [2005] NSWCA 180; (2005) 43 MVR 315.

1. In my opinion the apportionment of 80% responsibility on the part of Ms Watson for the injury (on the assumption that negligence were to have been found), whether or not the relevant conversations took place, is excessive. However, a proper assessment of contributory negligence cannot be made without knowing the ultimate finding as to the awareness of risk on the part of Ms Watson and what she did or did not tell Mr Meyer. If Ms Watson knew both of Aletist's condition and the risk it posed, and did not convey that to Mr Meyer, then the level of contributory negligence must be higher than if she did not know of the risk that was posed or if she did convey it to Mr Meyer and was reassured that there would not be a problem. Hence, this issue is one that should appropriately be determined on the remitter of the matter.

Grounds 7, 24 and 31 - defences

1. Various defences were invoked in Mr Meyer's pleading: the common law defence of volenti non fit injuria and statutory defences invoking s 5H (not directly relevant in the absence of a claim based on failure to warn); s 5I and s 5L. What was not pleaded was a defence based on ss 5F and 5G of the Act. The findings on these defences are challenged on appeal.

1. As to the common law defence, her Honour found that it was not made out if there was in fact a discussion on the day of the ride as Ms Watson maintained but that, if there had been no such discussion, then the common law defence would succeed ([238]). Dr Morrison submits that it is illogical to find that if there was no conversation as to Aletist being in season then Ms Watson must be taken to have accepted the risk of harm, since there is nothing to say that Ms Watson knew how that risk would materialise. I agree.

1. As to the invocation of s 5I, her Honour does not seem to have made an express finding. Her Honour found that the parties were engaged "in a recreational activity" ([152]) and that the risk of injury was an obvious risk. However, there is a difference between the obvious risk of suffering an injury while horse-riding through a fall and the risk of being attacked by a runaway stallion. Mr Meyer himself accepted that the danger of being attacked by a horse was outside the boundaries of what one would normally expect (Black 442M). Her Honour does not appear to have addressed that issue.

1. Her Honour's ultimate finding on the statutory defences appears to have been that, if negligence had been established, then a defence based on ss 5F and 5G would have applied. However, no such defence was expressly pleaded. Her Honour formed the view that the failure specifically to refer to s 5G was an oversight ([231]), albeit that there was no evidence as to the circumstances in which the pleading was drafted to support this, and allowed the statutory defence under s 5G to be put.

1. Dr Morrison contends it was impermissible for her Honour to entertain the unpleaded statutory defence under ss 5F and 5G. I agree. Although Mr Menzies relies on the fact that the issues relating to the relevant Civil Liability Act sections were before her Honour "and dealt with by the parties", that was in the context of the common law defence that was pleaded. Cases are to be determined on the issues raised in the pleadings. In circumstances where there was objection taken to the pleading, and no application to amend the pleading, Mr Meyer should have been held to his pleaded case. It could not be said that Ms Watson had acquiesced in a departure from the pleadings in the sense considered in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206. I accept that it does not appear that Ms Watson pointed at the hearing to any particular prejudice that would be suffered at that stage by a consideration of the unpleaded statutory defence. Nor was any such prejudice identified on the appeal. Nevertheless, on the pleadings the defence was not open. Insofar as a formal amendment was required, Mr Menzies indicated that Mr Meyer sought leave to do so. Ultimately, whether any such leave is granted for such an amendment is a matter for consideration on the remitter.

1. It is further contended by Dr Morrison that the statutory volenti defence was not made out. In this regard, the obvious difficulty again is the inconsistency between the finding that Ms Watson was aware "of the risk of riding into a paddock containing a mare which she ... knew to be in season" and her Honour's earlier finding that Ms Watson was not aware of such a risk. Further, it is necessary that the risk be one that would have been obvious to a reasonable person in the position of Ms Watson having regard to the particular circumstances in the which the risk materialised (Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 at [46]; Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874 at [94]). Insofar as the alleged negligence of Mr Meyer lay in giving the instruction, it is submitted by Dr Morrison that this created a risk that Ms Watson could not be said to have voluntarily accepted and hence the defence pursuant to s 5G could not have been made out (referring to Carey at [99]).

1. Grounds 7, 24 and 31 are made out.

Remitter

1. Rule 51.53 requires that this Court be satisfied that "some substantial wrong or miscarriage has been occasioned" before remitting a matter for a new trial. In the present case, the determination of the issue whether Ms Watson had informed Mr Meyer of the fact that Aletist was in season was critical to whether negligence had been established, as well as to the application of one or more of the defences. The inconsistency in her Honour's findings means that there has been an error in the process of fact finding and a miscarriage of justice in the sense considered in Mifsud v Campbell (1991) 21 NSWLR 725. Therefore, the matter must be remitted for a new trial.

1. I have considered whether, having regard to s 56 of the Civil Procedure Act 2005 (NSW), the re-trial should be limited to the particular allegations of negligence in respect of which the findings as to the relevant conversations were determinative and defences related to those allegations of negligence. In particular, I note that there was no appeal from her Honour's findings in relation to the particulars of negligence contained at paragraphs 10(d), 10(f), 10(g) and 10(h) (the last particular being expressly limited to a failure not to direct Ms Watson to go to a safe area). However, where the inconsistent factual findings at first instance involve disputed conversations between the parties, the determination of which is likely to involve credit findings that might impact on other issues in the proceedings, and having regard to what has been said in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 as to the difficulties of remitting a matter based on a particular assumption as to one only of a number of factual matters to be considered on re-trial, to which reference has more recently been made by Macfarlan JA in Tomasetti v Brailey [2012] NSWCA 399 at [63], I consider that the matter should be remitted for re-trial on all issues.

Orders

1. For the above reasons, the following orders should be made:

1. Appeal allowed.

2. Judgment for the defendant entered in the proceedings below be set aside.

3. The matter be remitted to the District Court for re-trial on all issues.

4. Respondent to pay the appellant's costs of the appeal.

5. Vacate orders made as to the costs of the first hearing. Order that costs of the first hearing be determined by the trial judge hearing the matter on remittal.

6. The respondent to have a certificate under the Suitors' Fund Act, 1951, if qualified.

1. GLEESON JA: I agree with Ward JA's reasons and the orders her Honour proposes.

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Decision last updated: 02 August 2013