Watson v Meyer
[2012] NSWDC 36
•16 April 2012
District Court
New South Wales
Medium Neutral Citation: Watson v Meyer [2012] NSWDC 36 Hearing dates: 5, 6, 7 and 8 December 2011; 6 and 7 February 2012; 3 April 2012 (oral submissions); 10 April 2012 (written submissions) Decision date: 16 April 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant.
(2) Costs reserved.
(3) Liberty to apply in relation to costs.
(4) Exhibits to be retained until further order.
Catchwords: TORT - negligence - Civil Liability Act 2002 (NSW) - plaintiff attacked by defendant's horse while both out riding on the plaintiff's property - duty of care - whether duty of care breached - whether particulars of negligence established - causation - defence of volenti non fit injuria pleaded at common law only - whether defendant could rely upon s 5G notwithstanding failure to plead reliance upon the statutory glosses to the common law defence - whether the Civil Liability Act covers the field - whether the parties were engaged in a dangerous recreational activity and the plaintiff was injured as a result of the materialisation of an obvious risk - s 69 and the effect of alleged admissions by the defendant - contributory negligence (ss 5R and S) - quantum Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C 5D, 5F, 5G, 5H, 5I, 5L, 5R, 5S, 16 and 69
Uniform Civil Procedure Rules 2005 (NSW), r 14.14Cases Cited: Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420
Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955
Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34
Canterbury Municipal Council v Taylor [2002] NSWCA 24
Carey v Lake Macquarie City Council [2007] NSWCA 4
CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Dare v Pulham (1982) 148 CLR 658
Doubleday v Kelly [2005] NSWCA 151
Insurance Commissioner v Joyce (1948) 77 CLR 39
Mackenzie v The Nominal Defendant (2005) 43 MVR 315
Osborne v London and North-Western Railway Company (1888) 21 QBD 220
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Ranieri v Ranieri (1973) 7 SASR 418
Rootes v Shelton (1967) 116 CLR 383
Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361
Sydney South West Area Health Service v MD (2009) 260 ALR 702
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234
Vertzayias v King [2011] NSWCA 215
Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427
Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754Texts Cited: Flemming Law of Torts, 10th Edition 2011 Category: Principal judgment Parties: Plaintiff: Lorna Watson
Defendant: Alan MeyerRepresentation: Plaintiff: Graham Jones Lawyers
Defendant: Stacks Southern Lawyers
Plaintiff: Mr P S Jones
Defendant: Mr J Wilson
File Number(s): 2010/233997 Publication restriction: None
Judgment
Table of Contents
Introduction
[1]-[4]
The issues in these proceedings
[5]-[6]
The particulars of negligence pleaded
[7]-[8]
The procedural history of the claim
[9]-[11]
The plaintiff's evidence
[12]-[26]
The plaintiff's account of conversations with the defendant about Aletist being in season
[27]-[33]
The circumstances of the accident
[34]-[42]
The defendant's evidence
[43]-[62]
The defendant's denials of conversations with the plaintiff about Aletist being in season
[63]-[70]
The circumstances leading to the accident
[71]-[74]
Whether Aletist was "winking"
[75]-[94]
Issues of credit
[95]-[102]
Conclusions concerning the conversations alleged by the plaintiff
[103]-[106]
Evidence in relation to the prior bad disposition of the horse Wrangler
[107]-[112]
(i) The Braidwood incident in 2006
[113]-[120]
Conclusions concerning the Braidwood incident
[121]-[124]
(ii) The paddock escape incident in 2007
[125]-[129]
Conclusions concerning the paddock escape incident in 2007
[130]
(iii) The Wingadene show incident in 2007
[131]-[135]
Conclusions concerning the Wingadene show incident in 2007
[136]-[138]
Other evidence about the disposition of Wrangler
[139]-[143]
Conclusions concerning Wrangler's disposition
[144]-[146]
The existence of a duty
[147]-[154]
Breach of duty
[155]-[160]
Particulars of negligence (a)-(i)
[161]-[215]
Liability for harm from obvious risks of dangerous recreational activities
[216]-[222]
Voluntary assumption of risk
[223]-[241]
Alleged admissions by the defendant
[242]-[249]
Conclusions concerning liability
[250]-[251]
Contributory negligence
[252]-[262]
Quantum
[263]-[264]
Plaintiff's damages schedule
[265]
Non-economic loss
[266]
Past and future out-of-pocket expenses
[267]-[270]
Past and future home care and domestic assistance
[271]-[272]
Past and future economic loss
[273]-[276]
Costs
[277]
Orders
[278]
Introduction
The plaintiff brings proceedings for damages arising out of an injury she suffered on 5 October 2009, when she was attacked by the defendant's horse, "Wrangler", while riding with the defendant on her property in Sackville Road, Ebenezer.
The circumstances of the plaintiff's injury were as follows. The plaintiff and defendant both have a long history of involvement with, and ownership of, horses, although the plaintiff portrays herself as somewhat naïve and reliant upon the advice of the defendant. The plaintiff and defendant met the year before the accident, and had been living together on the plaintiff's property for approximately eight months, although for the last four months of their relationship the defendant lived on a property nearby because of his work duties. He returned to the plaintiff's home on weekends, when they would go for rides on her property, in the "arena" paddock at the far end of the acreage. The plaintiff owned about a dozen horses, and the defendant's stallion, Wrangler, was also stabled at the plaintiff's property.
For some months prior to the accident, the plaintiff had agisted two of her mares on a neighbouring property. About seven days before the accident, the plaintiff brought these two horses (named "Aletist" and "Butterfly") back from agistment, and put them in the paddock containing the arena where she and the defendant regularly rode. As she was doing so, she noticed, according to her evidence, that one of the horses, Aletist, was in season and "winking" (releasing fluid which would signal her condition to stallions). The defendant, who was living away from the premises during this week, was not a party to the bringing back of these horses, but the plaintiff contends that he would have seen these mares, as he returned to the property daily for the purpose of filling the food bins for the horses in their paddocks around the plaintiff's property.
The accident occurred as follows. When the plaintiff and defendant, mounted on their respective horses, Freckles and Wrangler, reached the path leading to the arena paddock, Wrangler became excited at seeing the two mares, Aletist and Butterfly behind the fence in their paddock. The defendant attempted to turn Wrangler to go back to the homestead. At first Wrangler obeyed, but then he reared up and the defendant was thrown to the ground. The defendant got up and shouted instructions to the plaintiff (the circumstances of this conversation and the precise location of the parties are in dispute). The horse Wrangler immediately charged back towards Aletist, turned right, galloped to where the plaintiff was and bit her left leg above the knee. The plaintiff came out of the saddle and was thrown to the ground. She was seriously injured. She had to drag herself to the fence to get out of the way of Wrangler while the defendant went to call the ambulance.
The issues in these proceedings
In written submissions, and in oral submissions on 3 April 2012, the parties confirmed that the plaintiff's case is one of actual knowledge on the part of the defendant that the horse Aletist was in season, and not that the defendant ought to have known that it was dangerous to ride towards or into a paddock containing one or more mares which may have been in season.
The issues for determination are as follows:
(a) Whether the defendant owed any duty of care to the plaintiff to warn her not to ride her horse "Freckles" towards or into the arena paddock on her own property because another horse owned by the plaintiff, "Aletist", was in season;
(b) Whether the duty of care owed by the defendant was breached;
(c) Whether the particulars of negligence pleaded have been made out;
(d) Section 5D Civil Liability Act 2002 (NSW) and issues of causation;
(e) Whether, by reason of s 5L Civil Liability Act 2002 (NSW), the defendant was not liable in negligence for the harm suffered by the plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff;
(f) Whether there was voluntary assumption of the risk (pleaded in the defence as a volenti defence at common law, and thereby the subject of challenge by the plaintiff, as the defence does not refer to s 5G Civil Liability Act 2002 (NSW));
(g) The asserted effect of admissions by the defendant and s 69 Civil Liability Act 2002 (NSW);
(h) Contributory negligence (ss 5R and 5S Civil Liability Act 2002 (NSW)); and
(i) Quantum of damages.
The particulars of negligence pleaded
The plaintiff alleges that the defendant is a horse expert and that as the horse riding companion of the plaintiff (paragraph 1, statement of claim), he owed her a duty of care. It is asserted that he breached that duty of care as follows:
(a) Failing to properly and/or adequately control his horse Wrangler.
(b) Allowing the plaintiff to ride her horse in the vicinity of Wrangler when it was not safe to do so.
(c) Allowing his horse Wrangler 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 Wrangler when he knew or should have known that Wrangler was "fresh" and had been fed grain recently so that Wrangler was "pepped up".
(e) Instructing the plaintiff "don't let him get past" after Wrangler had thrown him to the ground when it was not safe for the plaintiff to get near to Wrangler.
(f) Failing to direct the plaintiff to immediately leave the area after Wrangler started to become excited.
(g) Failing to direct the plaintiff to immediately leave the area after Wrangler 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.
The plaintiff, who was taken by helicopter to Westmead Hospital and in the intensive care unit for a week, remained in hospital for three weeks, having suffered severe injuries to her left leg, left wrist and right shoulder. The nature and severity of those injuries are essentially not matters of contest, although the non-economic and future economic loss are disputed.
The procedural history of the claim
On 1 June 2011, the hearing of these proceedings was vacated, with the costs of the adjournment reserved to the trial judge, by reason of the plaintiff's amendment to her claim to include particular (i), namely the assertion that the defendant knew that the horse had a bad disposition and had previously become excited or agitated in the presence of other horses and in particular in the presence of mares.
An application to amend the statement of claim during the trial, to plead that if the defendant did not know the mare Aletist was in season, he ought to have known of the potential danger, was withdrawn.
I shall first set out the evidence of the plaintiff and defendant and their respective witnesses.
The plaintiff's evidence
The plaintiff, who was born in June 1966 and is currently 45 years of age, completed a Bachelor of Applied Science at Hawkesbury Agriculture College and then completed training at the Police Academy at Goulburn. She spent some time at Norwest Legal Services as well as completing general duties at police stations in the country. She has worked as an investigator at the NSW Ombudsman's Office, Railcorp and more recently for a government department.
The plaintiff bought a 25 acre property at Ebenezer in 2005. She kept about a dozen horses she owned on this property. It was as a result of her horse riding activities that she met the defendant in 2008. She described this meeting as follows:
"When I had - I returned back to the academy I had taken some horses with me and one of the horses that I'd taken was a young horse that I had wanted to continue working with because I'd been having lessons from a local fellow prior to going down to Goulburn and I wanted to keep that up. And he was quite a spirited and afraid horse and I had contacted the proprietor of the steel company that had done the modification on the float and I'd asked him or he'd recommended to me Allan again as a horse expert and at that particular time when I spoke to the proprietor he had been or was having one of his horses trained by Allan and he spoke very highly of the work that Allan had done with the horse and that's how I came to be put on to Allan." (T 14-15)
The plaintiff described her own horse knowledge and background at the time she met the defendant:
"Q. What happened after your discussion?
A. I told him what my background and experience was and I said to him I'm an English rider. I had dressage lessons when I was a much younger person. A couple of years ago I purchased an old quarter horse gelding who was an old rodeo horse and that horse was teaching me. I don't know what I'm doing. I don't know much about how to ride a western horse and the horse that I was hoping he would help me with was a young - and I was saying this, was a young quarter horse gelding who had had some reining training prior to me purchasing him and I explained that to me the horse was quite afraid and quite fast and had training in working at speed and being manoeuvrable and during the conversation just prior to that I'd asked Allan when he had explained what the John Lyons Select Training was I'd asked him what sort of training do you do and he told me that he could train anything and that he'd trained national champions and he was a reining trainer and he'd also trained police horses in the states." (T 16)
The plaintiff compared her knowledge to the defendant's knowledge of horses as follows:
"Q. How would you compare your knowledge of horses with Mr Meyer's knowledge?
A. Very little. He was highly experienced from what I could see. He was successful with the time that he worked on that horse. The more I saw of what he was doing with the horse the more I realised I didn't know." (T 17)
Counsel for the plaintiff, Mr Jones, indicated (T 17) that although there was no payment of money for these training activities, there would be evidence about reliance upon the defendant's expertise (T 17 line 27; T 18 lines 5-7). She said that the defendant gave her lessons (T 19-21).
The plaintiff commenced to have a personal relationship with the defendant, and in December 2008, approximately eight months before the events the subject of this litigation, he moved into her property.
The plaintiff painted a picture of the defendant as essentially remaining at home and performing the farm duties, as well as going for lengthy rides on his horse (T 19), while she worked full time. In fact the defendant worked even longer hours (see [24] below).
The evidence of the extent of the plaintiff's expertise was the subject of challenge in cross-examination. Although the plaintiff had painted a picture of the lessons she received from the defendant as being beginner's lessons, she had been riding, including riding in competitions, since about the age of 12 (T 83), winning ribbons in gymkhanas. She competed in events called "barrel racing" around New South Wales (T 85-86). She worked as a trail guide, supervising groups of people on horsebacks (T 243) for inexperienced rider on country riding holidays. She refused to describe herself as an experienced rider (T 86), although she had a part time job at "Horselands" (T 86), a shop which supplied horse care products, and had bought the property in 2005 so that she could stable all her horses. Those horses included a stallion which she bred with a mare, although she said that she was unsuccessful, as this stallion was injured in the process (T 87-88).
The plaintiff described (T 16) how the defendant trained her horse. She did not pay him for this (T 17 line 13). She said that after the defendant moved in "I had asked him if he would give me lessons" (T 19) on Freckles in western riding. This was because the plaintiff was accustomed to English riding (T 20). She said that the defendant agreed to do so and that when they went to the arena paddock "he would give me some instruction on [Freckles]" (T 20) in western riding. The plaintiff decided to sell some horses and advertise these horses for sale in July 2009 (T 20). It was in relation to this sale transaction that she wanted to have western riding lessons. She said that the defendant also gave her advice about appropriate saddles and equipment, and that she took "huge notice" (T 21) of what he told her. She said that when they went to the arena paddock the defendant would give her lessons, usually in the "round pen".
The plaintiff said she was not an experienced horsewoman and knew little about stallions:
"Q. So Ms Watson, during the period leading up to the date of your injury I want to suggest to you that you were an experienced horse woman, quite capable of managing multiple horses including a stallion on your own?
A. I disagree entirely.
Q. So are you presenting yourself to the court and is it your suggestion that you are an inexperienced person incapable of managing horses?
A. To some extent that's true.
Q. To some extent?
A. The - the horses on my place that I felt comfortable about managing were Freckles [sic]. Like I said to you that stallion was an entirely different proposition and in fact when Allan moved in he'd offered to assist me with different horses on the place because he suggested that I had too many and I certainly agreed with him and the stallion was one of the horses that he handled on the property.
Q. But before Mr Meyer moved into the property you had that stallion for a period of what would appear to be in excess of 12 months?
A. And did nothing with him.
Q. Except attempt to breed with him and take him to the vets on your own?
A. And when the farrier came to trim those feet the farrier held him, not me, and the horse used to misbehave quite drastically for the farrier.
Q. Ms Watson, I'm suggesting to you that you are an experienced handler of horses with a great deal of knowledge in relation to horses. That you are an experienced rider. That you have the capabilities of managing horses including stallions?
A. I don't mean to be rude but I'm not sure what part of that you would like me to address." (T 88-89)
The plaintiff agreed (T 90) that she was not so frightened of Wrangler that she told the defendant not to bring him onto the property. She agreed that she had control of the property and she had control of what occurred on it, including what horses came onto the property (T 90) and what paddock they were put in. On occasions she had fed Wrangler but said that he had been "nippy with me" (T 91). The defendant subsequently told her to keep away from him and said that he had banned his former wife, Ms Fenner, from any contact with Wrangler (Ms Fenner did not give this evidence when called by the plaintiff).
After the defendant moved into the property, the plaintiff went riding with him, to her arena paddock or to the back of the property, about every second weekend (T 91). She said that they had never ridden through the arena paddock with a horse in it before, although there were mares in other paddocks on the property during this 10 month period, including the mare Aletist (T 91). She said that these horses never came into close proximity with Wrangler because the arena paddock, the place to which they rode, was not used for this purpose.
For the first six months that the defendant lived on the property, he was working as a long distance driver for up to seven days a week. The long hours that he was away meant that he spent little time at the property, so in mid-2009 he obtained a job in a nearby stud (T 25). This stud was about 10-15 minutes drive away, but as mares generally foal at night, he had to live on the stud property. He returned on some weekends. The plaintiff and defendant both gave evidence they would talk to each other on the telephone on a daily basis and that in addition, the defendant would come onto the plaintiff's property one to two times a day to put feed in the horse feed bins (T 25).
There were about 12 horses located on the plaintiff's property in 2009, although two of the plaintiff's horses, Aletist and Butterfly, were agisted for some months on a neighbouring property. The plaintiff was the sole person responsible for the placement of horses on her property. The defendant was not cross-examined about a statement he made (T 344) that she rotated horses between paddocks from time to time at her discretion.
According to the plaintiff, when she was bringing back her two mares from agistment to her property, about a week before her accident, she observed one of the mares, Aletist, to be "winking", a term which describes fluid coming out of a mare's twitching vulva, indicating she is fertile and receptive to a male (T 25). Evidence from the experts as well as from the lay witnesses was to the effect that mares are in season about once a month for a period of up to a week, and that they are particularly likely to be in season during spring. Although the tradition of giving all horses birth dates in the same month is for convenience purposes, this reflects the fact that many horses are fertile in the September-October period.
The plaintiff's account of conversations with the defendant about Aletist being in season
According to the plaintiff, when she spoke to the defendant on the telephone on the day she brought the horses home, their conversation was as follows:
"Q. What sort of contact did you have with Mr Meyer whilst he was at the stud?
A. We used to speak daily. Our practise had been of an afternoon or evening that we would chat to one another on the phone to see what had happened with each of us during the day. And he was also spending a lot of time at my place as well when he had time available from work. And on the afternoon that I'd brought Aletist and Butterfly home, which was just getting towards dark, I'd called him that evening and part of our conversation, because I had told him that I'd brought--
Q. What did you say to him?
A. I said to him "I brought Aletist and Butterfly home today. Aletist is in season, just so you know. I've put them at the far paddock at the back of the property, the farthest away from Wrangler. Is that okay".
Q. Did he respond?
A. He did. And he said to me "That's fine". He also said "You shouldn't have done that because I was going to help you" and that was reference to me actually bringing the horses home.
Q. Besides speaking with him on the phone, what other contact did Mr Meyer have at that stage with you and your property and the horses on your property whilst he was in the position at Don Burke's stud farm?
A. He had a lot. As I said, we would talk on a daily basis. He was also spending a lot of time at my place. He'd told me that at the stud he'd had a lunch break and also that he was, part of his duties was that he had to feed some of the stud's horses that were kept on a different property and that he would arrange to feed those horses either during his lunch break and then come past my place at that time, or alternatively do it in the afternoon so he would leave the stud and go and feed those horses and then come back past my place." (T 25-26)
Although the defendant came to the property for about half an hour early in the morning and again in the evening for the purpose of putting feed in the horses' feed bins (which would have included the horses Aletist and Butterfly, now that they had been relocated in the arena paddock), he did not see the plaintiff again until next Saturday (5 October, the date of the accident). They continued to have daily conversations, but this topic was not mentioned again.
On Saturday 5 October, the plaintiff and defendant first went to Kurrajong to meet the plaintiff's mother for breakfast (T 22). There was discussion about going for a ride later in the day. They returned to the plaintiff's home in Ebenezer, and at about 2.00pm they both decided to saddle up the horses and travel to the arena paddock (T 22-23). It was their habit to ride their own horses, Wrangler and Freckles. According to the plaintiff, the following conversation occurred:
"Q. What was said?
A. When I had finished getting Freckles ready, I'd led Freckles off the wash bay and I was standing just below - we were both standing just below where the water tank is and a little garden area.
Q. The water tank, is that the one shown on the right?
A. That's correct.
Q. Of Exhibit D1?
A. That's correct.
Q. What was said?
A. I said to Allan "Will Wrangles be okay with Aletist up there, she's in season don't forget".
Q. Did he respond to you?
A. Yes he did.
Q. What did he say?
A. He said "He should be fine".
Q. Did you have any further discussion with him?
A. There was. I said to him "The mares could always go into that spare paddock before we go up if you like".
Q. The spare paddock being what paddock?
A. It was the paddock that was adjacent to the area and on the first map it's on the left-hand side of Aletist's paddock.
Q. I think you have told us this but just in case you haven't, to go into the arena which is I think where you were destined that day, is that right--
A. That's correct.
Q. --you had to go through the paddock in which Aletist and Butterfly were located, is that right?
A. That's correct.
Q. After you said to Mr Meyer "Well you can always put the two mares in the spare paddock", did he respond to that?
A. He did. He said "No it'll be fine"." (T 26-27)
The plaintiff was certain that she had informed the defendant twice of these events, although she said she was unaware of the dangers of taking a stallion into a paddock containing a mare in season (T 186 line 28-35) and although she had no regular practice of monitoring when the horses on her property were in season:
"Q. Did you have any monitoring of or make any observations about her, for example, past behaviour of winking and things like that?
A. Sorry--
Q. Did you take any specific notice over that period of two years about her behaviour in the period when she was seasonal, for example winking behaviour?
A. I would have noticed it but I don't know that I made any specific note to myself in relation to that.
Q. Are you able to say whether she showed any obvious visible signs of being in season?
A. Aw well, she would wink when she was in season.
Q. And did you notice for how long that occurred for?
A. I can't answer that at this point. I'm aware that the season lasts about a week give or take depending on - apparently horses are all different, but I don't have any - what am I trying to say, I hadn't made any particular observations in terms of her patterns of behaviour if you like in relation to when she was in season other than if she was I would see it.
Q. Would her season go only for two or three days where she was exhibiting signs of winking?
A. I'm not sure that my - well I may well have made observations along those lines, I don't recall them now. Yep, sorry, I'm not sure what else I can say.
Q. In relation to a mare being in season are you at the present moment aware of the seriousness in relation to keeping a mare away from a stallion during that period of time?
A. I certainly am today.
Q. What about back in 2009?
A. I was aware that mares who are in season were in season for a reason, if you like, that they were - had times when they were receptive to a stallion and that was the times when they were actually in their season.
Q. So were you aware of the need to keep, and this is again going back to the time of your injury in October 2009, were you aware of the need or the caution not to put a stallion near a mare who was in season?
A. Yes.
Q. You were aware of that?
A. Well, and that's why I had advised Allan where I had put the horses and noted to him that they were the farthest away from his stallion and up the back of the property.
Q. When you went riding with Mr Meyer that day it was your plan to go down, that was your intention to go down into the paddock which was where the arena was located, is that right?
A. We were both going there.
Q. And you're aware at that time that it wasn't advisable to go into a paddock where there was a mare on season?
A. Are you talking - sorry I don't understand the question.
Q. Well as at 5 October 2009 when you were injured, were you aware of the dangers associated with taking a stallion into a paddock where there was a mare which was in season?
A. No.
Q. You weren't aware of that at all?
A. On that day when I advised Allan again that the mare was in season, yes I did have some concern in relation to the behaviour of his stallion which is why I reminded him and asked him if his horse was going to be okay. I have not experience in terms of people riding with stallions in paddocks with mares in season.
Q. See Ms Watson, you never told Mr Meyer either on the telephone or even before the ride, that Aletist was in season?
A. I absolutely told him on each occasion.
Q. Are you suggesting the reason you told him was that you were aware of the dangers associated with riding a stallion into a paddock or even in the vicinity of a mare?
A. I told him because his - sorry his horse is a stallion, the mares were up there and I'm reminding him this is where we're going is your horse going to be okay, because I didn't know how his horse would respond, hence my question to him in terms of will he be okay." (T 185-186)
The plaintiff repeated (T 187 line 14) that she was not aware of there being any danger. She said the second conversation was simply "a courtesy" to him in case he had forgotten what she said in the phone call some seven days earlier (T 187).
In cross-examination it was put to the plaintiff (T 188-189) that she had not told the defendant that Aletist was in season. She denied this.
As the plaintiff and defendant set out on 5 October, she said the defendant told her Wrangler was "a bit fresh" because he had been given "a fair bit of grain" and not much exercise (T 229).
The circumstances of the accident
The plaintiff described the accident as follows. The plaintiff and defendant proceeded from the stable where they had saddled the horses and began to ride their horses up the track. They were heading towards the arena paddock. The plaintiff said that Wrangler appeared fresh, and was zigzagging.
The plaintiff and defendant reached the paddock previously occupied by Freckles. This paddock was empty of horses on the day (T 30). The defendant was a short distance ahead (about 10-15 metres) and they were riding towards the end of the track where the arena was. Before that, it was necessary to go through the gated or cordoned-off area of the paddock occupied by Aletist and Butterfly.
When they were approximately 20-25 metres from the gate, Aletist and Butterfly could be seen. The plaintiff said that Aletist was facing backwards and it was obvious from her rear end that she was "winking". The defendant denied this.
Wrangler began to play up (T 40-41) by tossing his head, dipping his head down and beginning to prance. The defendant was gripping the reins and would go forward with the movement of the horse. The horse then began screaming. The plaintiff said "I think we better go back", to which the defendant agreed, saying he was already trying to get the horse away from the fence. The plaintiff turned her horse around and began to walk very slowly back towards the home. She was looking back to see how the defendant was going on his horse and observed that the horse was moving sideways. He was at about a 45-degree angle to the right hand side fence line, which was the electrified fence line.
As the plaintiff was leading up to the hay shed, Wrangler appeared to be a bit calmer. The defendant got Wrangler to a gate area on the right hand side of the track when the horse changed direction and went to the left hand side of the fence. He threw his head down and threw the defendant, who went sailing over the horse's neck and on the horse's right hand side (T 44). The defendant hit the ground near the trunk of a small tree; at this stage the plaintiff was about 10 or 15 metres back (T 45). The horse Wrangler spun around and began charging back towards the two mares Aletist and Butterfly. The plaintiff said that the defendant called out "Don't let him get past" (T 45).
The plaintiff had already stopped Freckles from going forward. She was sitting on her horse beside the hay shed, facing towards the gateway where Freckles was. This was the gateway where Wrangler had deviated to the left. Wrangler was charging back towards them as fast as he could. As the defendant had told the plaintiff not to let the horse go past, she squeezed Freckles with her heels and asked him to move forward and Freckles took one step forward with his right front foot. She thought she could grab a rein, but it never reached that point, because Wrangler had started to charge in her general direction. He lined her up and, coming at her very fast, took her leg above the knee. He "latched onto her like a vice". He continued to charge towards Aletist and Butterfly, holding onto her leg, and she began screaming (T 48).
The plaintiff had not changed her position in the saddle as she was dragged along. Wrangler did not break stride with Freckles, so they were galloping side by side (T 49), while Wrangler had the plaintiff's left knee in his mouth. The plaintiff then came out of the saddle and she was up side down with her head close to the ground. She hit the track when the horse dropped her and she landed on her back.
The plaintiff knew immediately that she was seriously injured. The defendant ran up to her and said "I'm going to put Wrangles [sic] down" (T 50) and went to the house to get assistance, as they did not have mobile phones. Wrangler charged back towards her and she had to crawl underneath the fence to avoid him (T 51-52).
The plaintiff suffered serious injuries which are described in more detail in the section of this judgment in relation to quantum.
The defendant's evidence
The defendant, who is currently 60 years of age, was born in the United States. He became interested in horses as a teenager and acquired his first horse in about 1972 or 1973. Since that time, he has owned about a dozen horses (T 323), a number comparable to that owned by the plaintiff. At one stage he worked with the Sheriff's Department in the United States as an instructor and trainer, but this was part-time. He worked for a trucking business between 1971 and 1999.
The defendant began working full time in the United States as a horse trainer for about three years after 1999. He completed the John Lyons horse training course in 2001 and it was during this six months at school that he met Ms Kate Fenner. He went to live with her in the United Kingdom in 2002, where he lived until 2004. He married Ms Fenner in 2004 and worked with her as a horse trainer, covering both western and English horse training and horse riding disciplines. He came to Australia in 2004 with Ms Fenner to live. They looked for a property and settled on a country property of about 100 acres in the area between Marulan and Goulburn. It had been divided into paddocks for horses as the previous owner has owned horses. He lived there until Ms Fenner said she wanted in a divorce, in late 2007 or early 2008. During this period of time both he and Ms Fenner trained horses. They owned about three or four horses between them over this time.
The defendant and Ms Fenner returned to the United State for further training with John Lyons. While there he bought the horse Wrangler. Wrangler was about two years old at the time. The horse remained with the defendant when he returned from the United States to England and was then flown to Australia. Wrangler then remained with the defendant and Ms Fenner in England for about 18 months. (The defendant's dates in relation to these events are somewhat inconsistent (see T 328-330), but nothing turns on this part of the chronology.)
The defendant had had prior experience with stallions. His first horse in 1972 was a colt. He said it made little difference to him whether the horse he was riding was a stallion or not (T 326). It was difficult for him to put a number on how many stallions he had managed, but he said that stallions were fewer in numbers than the rest of the horse population, because they were principally kept for breeding purposes rather than for riding.
The defendant described Wrangler's behaviour in England and the circumstances in which he suffered an injury when thrown from Wrangler when the horse was injured by a nail in the saddle:
"Q. During the time that Wrangler was in England with you and Kate how did you find his behaviour as a horse?
A. Typical.
Q. And what do you mean by typical?
A. He was a young horse that had no education and that was the reason for buying him really, rather than having to change a behaviour you get to build it from scratch.
Q. In this building from scratch process in England did you have any problems with him?
A. I did. It wasn't his problem. While breaking him in Kate and I had a clinic to do on one weekend so I put him away on Friday night and had him looked after while we went and gave this instruction at this clinic and came back early the next week and started him again. And when I went to saddle him he acted differently. I knew there was something but it didn't stop me and I mounted and he began to buck and carried on more vigorously with each buck after that and I wound up falling and he came down on my ankle and shattered it.
Q. Was that behaviour of Wrangler the same or any different to any other experiences you'd had with stallions during the course of your time with working with stallions?
A. I don't think it had anything to do with him being a stallion. This was all brought about by a nail that was making its way from the inside of the saddle, or the underside of the saddle towards the horse and my weight in the saddle was simply driving that nail into his back." (T 331)
The defendant described Wrangler's behaviour in Australia as uneventful:
"Q. When you migrated with Kate to Australia did you bring Wrangler with you?
A. We did.
Q. Where did Wrangler come and reside or be housed at Tiyces Lane?
A. That's correct.
Q. Did he remain at the property at Tiyces Lane during the course of the time that you resided there?
A. Yes he did.
Q. During that period of time was there any - were there other horses on Tiyces Lane?
A. Absolutely.
Q. Did Wrangler have any involvement with those other horses?
A. Involvement in--
Q. Did he mix with them?
A. He wasn't housed with them. You never put a stallion along a common fence with any other horse. But he rode with Kate while Kate rode geldings and mares and everything else.
Q. And how did you find Wrangler's behaviour with other horses during that period of time?
A. A non event.
Q. What do you mean by a non event?
A. He was focussed on the instructions, and on me, and what we were trying to accomplish at the time.
Q. During that period of time how much involvement did you have with Wrangler, was it on a day to day basis during that period of time that you lived at Tiyces Lane?
A. It was every day..
Q. What were your observations about his behaviour during that period of time?
A. Can you re-phrase that, I'm not sure--
Q. Well did you form any opinion about his behaviour, or his demeanour, during that period of time?
A. He was a typical horse." (T 331-332)
During the time that the defendant and Ms Fenner lived together, three incidents occurred which are relied upon by the plaintiff as evidence of the horse Wrangler as having a bad disposition. These are described in more detail in the section below concerning the temperament of the horse Wrangler.
After the defendant left the matrimonial home he had been sharing with Ms Fenner, he met the plaintiff, while he was working at Australian Stockyards. This was a steel fabricating company which, among other things, built horse floats. He was working there as a welder. He was consulted because the plaintiff said she was "afraid" of a horse she had bought (T 338). They became romantically involved. The plaintiff invited him to come and live with her at the property in Ebenezer some months earlier to December 2007 but he said he would not do so until he had obtained employment. He then went back to driving trucks, and in particular driving racehorse trucks for Prestige and its sister company Hawkesbury Racehorse Transport (T 339). He worked for them driving long-range trucks but was still home every night. However, as horseracing was a seven-day a week job, he was on call every day of the week, including many weekends. The defendant found the very long hours driving trucks to be tiring and began looking for other employment. He worked for Prestige/Hawkesbury Racehorse Transport from January to June 2009. He found employment at Burke stud in June and worked for them until about October 2009. He lived at the stud but came home for about three weekends out of four.
The defendant gave a very different description of the rides he had with the plaintiff. He said that he always rode Wrangler, and that the plaintiff would more often than not ride Freckles. He said that they both "loved to ride" (T 348) and that these were rides for pleasure. He said his level of horsemanship was different to the plaintiff's, and said:
"A. I believe Lorna has ridden for almost as many years as I have and certainly done eventing that I've never done and I think it takes a great deal more experience to go out and do eventing which is running and jumping through hazards and fences, I'm not up to that." (T 381)
He said that he did not advise her on selection of horses, and that he did not provide input into selection of horses when she advertised some horses in a horse swap (T 381). He said that he had given her instructions in western riding but that he stopped giving her instructions on western riding because "all it did was lead to an argument" (T 382).
During the six-month period that he was working for the transport company, he would try to go for a ride with the plaintiff at least once a week. He described these rides as follows:
"Q. When you'd go for a ride whereabouts would you go riding on the property?
A. We might keep the ride to the arena, we might go to the arena and then make our way to the bush area that was you know towards the back of the property beyond the arena or we might do both of those and then ride out onto the road and then go down the road and there was a little track that Lorna knew, it kind of went to the back of her place, so wherever we wanted to go.
Q. And what horse would you ride on those ride?
A. I always rode Wrangler.
Q. And what horse would Lorna ride?
A. More often than not she would ride Freckles, if not all the time.
Q. And during that period of time did you experience any difficulties with Wrangler whilst riding with Lorna whilst you were riding Wrangler and she was riding Freckles?
A. No.
Q. And again I'm just asking during that first six months, during that period of time are you aware of where Aelitist was housed on the property Ebenezer?
A. There were quite a number of horses and they were rotated between paddocks from time to time at Lorna's discretion. I was made aware of what horses were where so that I could feed them the proper ration but none of that was within my control or - so I just delivered the feeds where Lorna told me the horses were." (T 343-344)
Wrangler and another horse owned by the defendant also lived on the property. The defendant said that there were many times that he rode Wrangler in the arena paddock. On occasions, they rode in the arena while there were horses in the arena paddock, but they did not go into the arena paddock and ride at the back of the paddock, where these horses were kept. They rode in the arena (at T 345).
The defendant's jobs while living on the property included feeding the horses. He described this as follows:
"Q. Can you give an indication to the court what feeding of the horses involved?
A. Lorna would generally and certainly in the beginning, make up her rations for her horses, in the buckets with their individual names on them so that I could deliver the proper ration to the proper horse and that was simply my job until I became more familiar with both her horses and her feeding regime and she would have that on a piece of paper for me, who got what and she entrusted me after some time to give them the proper feed.
Q. And during the time when you were feeding the horses, how did you physically do that, did you move the feed from the shed around to the different paddocks?
A. Yes by means of a wagon or trolley that Lorna had.
Q. And would you pull that physically just on foot or would you have that on a car or the back of the horse?
A. No I just dragged the thing.
Q. Sorry?
A. I would just drag it along behind me." (T 345)
It was necessary for the plaintiff to remain on the Burke stud during the week because he had to assist with foaling (T 346-347). He would have one weekend off in four. As there were four staff members, they would share the weekends off between them. He nevertheless had weekends free during the day, and would still go for weekend rides with the plaintiff. He also continued to be responsible for the feeding of her horses:
"A. I would generally feed in the morning and feed at night so that meant getting up, running over to Lorna's place, feed, run back, feed the sixty some horses there before starting the day to train and then in the evening I would do the same routine.
Q. And did it involve, the feeding regime that you performed at the, whilst you were working at the Burke Stud, was the same regime you just described a moment ago is that correct, in relation to the feeding of the horses at Ebenezer was it the same regime that you described a moment ago, how the mixing of the having to feed--?
A. Yes, Lorna would try and make up a week at a time so there would be stacks of buckets that belonged to a particular horse and all I'd have to do is come along take the top one of each of the stacks, throw them in the trolley and down the lane I'd go.
Q. And the feeding that you undertook whilst you worked at the Burke Stud, when you undertook it at Ebenezer was that undertaken in daylight hours or in darkness?
A. That would depend, generally in the mornings it was dark, given the time of the year and the fact that I needed to be back at the stud to start work there at seven, seven-thirty in the morning so, and then I had to do Lorna's even earlier, I would get to feeding in the evening when I could.
Q. And would that generally be in the hours of darkness or in light?
A. It wasn't pitch dark by any stretch of the imagination but it wasn't full light either."(T 347)
While the plaintiff said that she only went riding with the defendant about every second weekend, the defendant's evidence was that they would go riding at "every opportunity", and that while that depended on the plaintiff's work schedule "we both loved to ride and that's what we'd do" (T 348). This appears to be a more likely description of their activities together.
The defendant's presence on the property for feeding would take about half an hour in the morning and half an hour at night, and in addition, he would be there on weekends all day and often overnight (T 348). He was asked whether the horses would always be at the feeding trough:
"Q. And in relation to when the horses would be fed, was it always the practice that the horses would be there at the feeding trough when you fed them?
A. No, no it wasn't those horses had a little more to choose from in that back country and they, as often as not weren't there when you'd dump the feed in." (T 348)
He said (at T 390) that, at best, horses would come to the troughs at feeding time about 50% of the time, but that you could not see if a mare was "winking" unless you saw the horse from behind (T 391).
He was asked in particular about his observation of the horse Aletist and the other horses in the arena paddock in the week before the accident:
"Q. I just want to clarify the question, when I said the horses, I was referring to Aletist and the other horse in the arena paddock which is what, you answered that question didn't you?
A. Yes I did.
Q. Do you know what other horse was there with Aelitist [sic]?
A. No I know there was another horse, I don't remember that horse's name.
Q. And did you observe Aelitist during that period of time of the week when she was in the paddock the arena paddock?
A. Did I observe her.
Q. Yes?
A. Not particularly.
Q. Did you observe any characteristics such as what has been described as winking during that period of time which would indicate to you that she was in season?
A. No I did not.
Q. The plaintiff has given evidence in relation to a conversation that took place on the telephone relating to - whereby the plaintiff said that she told you that Aelitist was in season, this was on the telephone during the week, did any such conversation take place?
A. Absolutely not." (T 348-349)
The defendant agreed that they would have telephone conversations on a daily basis, sometimes several times a day, and that they would discuss matters such as horses. He said the plaintiff described such matters as changes to feeding regimes or water troughs, whether the garden needed to be watered and the like. It was not necessary for the defendant to open the gate for deliveries because those persons had a key (T 349), that there were occasions when he had to let persons in to the property.
He said that Wrangler was a typical stallion and stallions "typically are nippy" (T 350). He agreed it was very likely that he had told the plaintiff words to this effect (T 350).
The defendant's denials of conversations with the plaintiff about Aletist being in season
The plaintiff alleges that she spoke to the defendant by telephone at the stud on the day that she brought the horses home from agistment. During this conversation the plaintiff says she told the defendant that Aletist was in season. The plaintiff says she had a second conversation with the defendant to this effect on the day of the accident.
The defendant said, in examination-in-chief:
"Q. The plaintiff has given evidence in relation to a conversation that took place on the telephone relating to - whereby the plaintiff said that she told you that Aelitist was in season, this was on the telephone during the week, did any such conversation take place?
A. Absolutely not.
Q. Was there any conversation of a telephone nature that took place during the time that you worked at all during, sorry I withdraw that question. Did you communicate with the plaintiff when you stayed overnight at the Burke Stud?
A. Yes daily, several times a day.
Q. And would you talk to the plaintiff about matters involving the horses?
A. Certainly.
Q. And would you talk to - and sorry what sort of things would you talk to the plaintiff about as far as the horses on Ebenezer was concerned?
A. Well if Lorna felt on horse needed more hay or less hay or had changed the feeding regime or water troughs had to be filled, garden needed to be watered it would be mentioned." (T 349)
The defendant denied that anything was said by the plaintiff about Aletist being in season on the day of the accident:
"Q. And was there anything said by the plaintiff about Aelitist being in season?
A. No.
Q. If something had been said by the plaintiff about Aelitist being in season would you have ridden Wrangler down to the area where Aelitist was situated?
A. Absolutely not.
Q. And why not?
A. My job at Burke Stud was to handle the stallions for collection, in so doing and in many years of experience prior to that one becomes aware of what a horse is capable of from a physical and emotional standpoint when it becomes aroused, it's dangerous and under the best of circumstances is hazardous and you just simply wouldn't do it." (T 350)
In cross-examination, the defendant denied being told, in either conversation:
"Q. Can I suggest to you that a conversation occurred during one of these daily conversations between you and Lorna Watson do you agree with that?
A. Quite likely yes.
Q. And can I suggest to you that at the same time she told you that Aelitist was in season, that happened didn't it?
A. No it did not.
Q. And can I suggest to you, you said to here "that's fine", do you agree with that?
A. No." (T 387)
This was put to the defendant a second time:
"Q. I want to suggest to you that not only did Lorna tell you over the telephone some days beforehand that she'd put the horses in there and Aelitist was in season, but she also told you on that very day just as you were about to set off riding, that's right isn't it?
A. No it isn't." (T 393)
Mr Jones went on to ask:
"Q. Just before you set out did you have a conversation in which she reminded you that the two mares were there?
A. No.
Q. Yes or no, okay?
A. I was feeding them, why would she remind me of that?
Q. Well she also said to you not to forget that Aelitist was in season?
A. No, absolutely not.
Q. And can I suggest to you that she said the mares could always go in the spare paddock before we go up, if you like. That's what she said to you wasn't it?
A. No.
Q. And you said "No it'll be fine" didn't you?
A. No I did not." (T 393)
The defendant said that it should have been obvious to the plaintiff, if she knew, as it was obviously potentially dangerous:
"Q. That's something she should have told you at the time?
A. If she knew.
Q. Yes?
A. Sure.
Q. Because it was something - I withdraw that. It should have been obvious to her that if you were to go through that paddock to get to the arena it may well have been dangerous if you were on Wrangler and one of the mares was in season?
A. So what's the question?
Q. That's because it should have been obvious to her that if you were to go through that paddock with one of the mares in season it may well be dangerous?
A. I think that was obvious to everyone.
Q. Even someone with a lot less knowledge and experience than Lorna?
A. I would say yes.
Q. Well can I suggest to you that the communication one of those mares was in season was indeed so obvious that she told you, do you agree with that?
A. No." (T 395)
In order to feed the horses, the defendant drove to her property very early in the morning before starting work and again in the evening after finishing. He would wheel the food (which the plaintiff had left out for him) along the track to the feed bins along the trail road, dump the food in and then leave immediately to return to the stud where he lived. He said that unless the horse showed its rear to him, he could not have observed "winking", and that horses did come to the food trough as he approached, but less than 50% of the time.
The circumstances leading to the accident
On the day in question, the plaintiff and defendant made preparations for their usual ride. The defendant was adamant, both in examination in chief (T 350) and cross-examination, that the plaintiff said nothing about Aletist in season. He said if he had known Aletist was in season, he would "absolutely not" (T 350) have ridden Wrangler to the area where Aletist was situated.
The description given by the defendant of the circumstances leading to the accident vary, in that the defendant said he saw the horses Aletist and Butterfly facing them, and that Aletist did not have her back turned. He then described what happened as being as follows:
"A. Wrangler took me toward those two horses like a locomotive, I tried pulling him up, I tried turning him, I tried doing everything that I think one could attempt with absolutely no result, I didn't know that we were going to stop at the fence, I was thankful that we did, at that point all I could think about was getting him away from those two horses, one of which or both must have been in season for him to be acting the way he was acting." (T 352)
He came to the conclusion that one or other of the horses was in season because of Wrangler's behaviour. He did his best to get Wrangler under control. He told the plaintiff he was abandoning the ride and that she could go on, but that he would have to return with this horse. Wrangler continued to act up, although as they got further away the horse became more relaxed. He did not have any idea where the plaintiff was while he was endeavouring to control Wrangler. Once Wrangler had appeared to become calmer, he said "okay Lorna, what do you want to do today" (T 354) and that what subsequently happened was as follows:
"A. I was relaxed, I was comfortable in the saddle and without warning I got chucked to the floor, in picking myself up, Wrangler seemed to momentarily stand still, I asked Lorna to do something, stop him, block him, hold him, whatever, I don't remember those exact words, while I was getting up, which was a split second, as I wasn't injured, Wrangler spun and went racing back toward those two horses. Freckles was running with him in that direction and he reached over and I could tell by the screaming he had a hold of Lorna's leg with his mouth and then somehow dragged her from her saddle and carried her some distance and both horses were beating her up with their hooves and their legs and she was screaming wildly." (T 354)
The defendant saw the plaintiff lying on the ground injured in the pathway with the horses still loose. He was reluctant to move her because her leg was obviously fractured and he did not want to cause more injury. His first priority was to get help on the way and he returned to the house as neither of the plaintiff nor the defendant had mobile phones. Because the ambulance arrived, he gathered the horses because the plaintiff was screaming and he observed she had dragged herself under the fence so she did not get trampled again.
Whether Aletist was "winking"
The defendant was away from the plaintiff's property during the week when Aletist was put in the top paddock. How could he have known that Aletist was in season? The plaintiff said he knew because she told him. It would otherwise have been up to him to notice this. Mr Lawson, the expert retained by the defendant, states at paragraph 12 of his report (Exhibit 2), that unless the mare is very hormonal, it is easy to miss she is in season unless she is teased. However, the plaintiff's case is that it was particularly obvious that the mare Aletist was in season, because Aletist was "winking", namely displaying a stream of liquid from her twitching vulva, which was an indication that she was in season.
Did the plaintiff in fact observe Aletist winking, or is this, as the defendant submits, a later invention? Mr Wilson states (written submissions, at paragraph 42) that the statement of claim does not describe prior observation of "winking", or the first conversation about it, despite going into considerable detail on a number of other issues and having the opportunity to amend on 1 June 2011. In addition, Mr Wilson submits that I should take into account the failure to refer to the mare Aletist "winking" in answers to further and better particulars provided by the plaintiff, to the instructions to the expert, and to the reports of Mr Sanna.
Exhibit J, which is a letter from Graham Jones Lawyers dated 15 November 2010 to Mr Sanna, does not refer to the mare "winking". Mr Sanna's report of 6 December 2010 (Exhibit H) refers to the two mares in the paddock "one of which at least was posturing towards him" (page 2). Is "posturing" the same as "winking", or is Mr Sanna referring to the plaintiff's evidence that Aletist was displaying her rear?
Whether or not "posturing" is the same as "winking". Mr Sanna goes on to refer to both "posturing" and "winking" in his next report of 29 June 2011 (Exhibit H):
"3. On the assumption that the mare ALETIST was posturing towards the stallions as they approached the paddock, Mr Meyer should immediately have turned around to avoid, if it was not already too late, an increasingly dangerous situation. Again, I repeat that not all mares in season engage in open posturing or 'winking' at oncoming horses. The stallion's sense of smell could very easily pick up on a mare in season."
Mr Sanna's report was prepared following a letter of 21 June 2011 outlining "further information with regard to alleged previous behaviour by the stallion "WRANGLER" and a request for more detailed information on matters previously covered." This would suggest that it was not until the letter of 21 June 2011 that the issue of whether "winking" occurred was raised. When looking at the letter from Graham Jones Lawyers of 21 June 2011 at paragraph 3, this appears to be correct, in that the following is stated:
"3. We invite your comments regarding the conduct of the defendant on 5 October 2009 on the assumption that as he and the plaintiff were riding they continued to proceed even when they came towards a mare that was "winking" or on the assumption that they continued to proceed even when they came towards a mare (noting the time of year)."
As to the final words in this letter, I note again that both parties have assured me that the plaintiff's claim is brought on actual knowledge, and not upon the fact that the defendant ought to have known that riding into the paddock at that time of year was dangerous. The principal purpose of the letter of 21 June, which was written after the hearing date was vacated, was to ask him to comment about particular (i), which introduced new material about Wrangler's prior disposition. The request for additional comments about "winking" (as opposed to merely posturing) suggests that this was not an issue put to Mr Sanna beforehand. The additional particulars also assert that the plaintiff and defendant continued even after they saw Aletist winking, but in fact it was the evidence of both the plaintiff and defendant that they turned their horses around almost immediately when Wrangler began misbehaving. The defendant said he never saw Aletist winking; he assumed from Wrangler's behaviour that one or both of the mares in the paddock must be in season and for this reason turned his horse around to go back.
As noted at [75], Mr Lawson, the expert retained by the defendant, stated that it is often difficult to tell whether a mare was in season. This is effectively what Mr Sanna is saying as well, in that whether or not a mare was in season was not always obvious to people as not all mares engage in "open posturing" or "winking"; the stallion's sense of smell could, however, very easily pick up on a mare in season. The inference is that a mare being in season is something which might not be obvious to people, but would be obvious to stallions.
Mr Sanna was cross-examined about his reference to winking; he stressed that he did not know if the horse had been doing that, as he was not there, but he describes the process as being the emitting of fluid and the contracting of the vulva for most of the period of time that the horse was in season, which could be a few days to up to a week, although some horses in the spring season (September to March) are more or less continuously in season.
The evidence of the plaintiff about observing the horse Aletist "winking" on one occasion when she brought the horses home from the neighbour's property (T 24-25) and a second time when she and the defendant were approaching Aletist (T 40) are provided after pleadings and particulars were sought and expert opinions obtained. It was not part of the plaintiff's claim when Mr Lawson provided his report, which may explain why he does not deal with it. Mr Wilson adds that in cross-examination the plaintiff volunteered other examples of Aletist "winking" on previous occasions (T 266) although it was not particularised. He asks the court to find that all this evidence is a recent addition.
The plaintiff's observations of the horse Aletist "winking" was important information for Mr Sanna. Mr Sanna's initial reference to the mare Aletist as "posturing towards the stallion as they approached the paddock" suggest that on his instructions, Mr Sanna was not told about the plaintiff's observations of Aletist "winking" almost a week earlier. However, I must exercise caution in this regard. It may be that the persons drafting the letter of instruction to Mr Sanna, and the statement of claim, did not appreciate the significance of this evidence.
As noted above, the question of "winking" is linked to the other problem in the letter of instruction, namely the omission in this letter to the conversation the plaintiff said she had with the defendant about "winking" prior to the day of the accident. All those particulars say are as follows:
"The Plaintiff and Defendant started to saddle up at about 2.30pm on 5 October 2009. As the Defendant was on his horse and the Plaintiff was getting stirrups and girth organised she said to the Defendant words to the effect "Will Wrangles [sic] be okay with Aletist up there? She is in season don't forget." The Defendant replied with words to the effect "He should be fine.""
The evidence of the plaintiff on this issue has, Mr Wilson submits, a fundamental inconsistency. Firstly, the plaintiff agreed in cross-examination that she had never taken notice of Aletist's cycles prior to this event, despite saying that Aletist had a tendency to wink while in season (T 185), although mares are in season about once a month for up to a week:
"Q. Did you take any specific notice over that period of two years about her behaviour in the period when she was seasonal, for example winking behaviour?
A. I would have noticed it but I don't know that I made any specific note to myself in relation to that.
Q. Are you able to say whether she showed any obvious visible signs of being in season?
A. Aw well, she would wink when she was in season.
Q. And did you notice for how long that occurred for?
A. I can't answer that at this point. I'm aware that the season lasts about a week give or take depending on - apparently horses are all different, but I don't have any - what am I trying to say, I hadn't made any particular observations in terms of her patterns of behaviour if you like in relation to when she was in season other than if she was I would see it.
Q. Would her season go only for two or three days where she was exhibiting signs of winking?
A. I'm not sure that my - well I may well have made observations along those lines, I don't recall them now. Yep, sorry, I'm not sure what else I can say.
Q. In relation to a mare being in season are you at the present moment aware of the seriousness in relation to keeping a mare away from a stallion during that period of time?
A. I certainly am today." (T 185)
The plaintiff went on to say that this was the reason why she had put these horses in the paddock the furthest away from his stallion and up at the back of the property (T 186).
However the plaintiff said elsewhere in her evidence that this was the first time she had ever put horses in the arena paddock. She was very firm about this evidence. Yet Aletist was a horse which, according to her, winked regularly when in season, and would have been doing so while not only the plaintiff's stallion was on the property, but also while another stallion owned by the plaintiff had been on the property.
The plaintiff gave evidence about horses being kept in various paddocks at various times, but there was no system for keeping mares in season apart from stallions. She said at T 187 that this was because she was not aware of there being any danger:
"Q. You must have been aware of the dangers associated with putting a stallion in the vicinity of a mare in season, you must have been aware of that danger?
A. Well I certainly am now.
...
Q. You must have been aware of that danger?
A. No, I was not aware." (T 186-187)
She repeated at T 189:
"Q. You realised at that time the potential danger of that situation?
A. Like I said I was aware that his horse was a stallion and the circumstances of where we were going. I was not aware, although I am now, of the dangers that were awaiting."
The defendant in written submissions calls attention to the inconsistency between the plaintiff making a point of telling the defendant, and then reminding him a second time, about something she did not consider to be important. The defendant's evidence was that if he had known, he would never have taken his horse into the vicinity.
In written submissions, Mr Jones refers to the cross-examination at T 186 line 6-14 as follows:
"Q. So were you aware of the need to keep, and this is again going back to the time of your injury in October 2009, were you aware of the need or the caution not to put a stallion near a mare who was in season?
A. Yes.
Q. You were aware of that?
A. Well, and that's why I had advised Allan where I had put the horses and noted to him that they were the farthest away from his stallion and up the back of the property."
However the plaintiff went on to say that she was not aware of the dangers of taking a stallion into a paddock where there was a mare in season as at 5 October 2009 (T 186 lines 25-28):
"Q. Well as at 5 October 2009 when you were injured, were you aware of the dangers associated with taking a stallion into a paddock where there was a mare which was in season?
A. No."
Viewed in its totality, I am satisfied that, whether she observed Aletist "winking" or not, the plaintiff did not realise the danger of riding a stallion into a paddock where there was a mare in season. This is a relevant matter to take into account when considering whether the plaintiff told the defendant about Aletist's condition, and sought confirmation about any danger on the day of the accident. These inconsistencies cast real doubt upon whether the plaintiff did in fact observe Aletist winking, or appreciate its significance if she did.
Issues of credit
In relation to this issue, the defendant has made submissions about the plaintiff's credit, which I summarise as follows:
(a) The plaintiff attempted to downplay her experience with horses, to minimise her experience and to maximise her asserted reliance upon the defendant, whom she portrayed as giving her lessons;
(b) The plaintiff's specific answers in relation to questions such as whether Wrangler and Freckles had been ridden through paddocks with mares before (T 91), as opposed to very general answers when asked whether Wrangler had misbehaved or acted badly during the time he was on the property prior to her accident (T 90). The plaintiff did not answer the question and when it was asked again (T 94) it is asserted she was evasive.
(c) The plaintiff and defendant were in a relationship which has now come to an end; and
(d) The conduct of the plaintiff, including speaking to a witness during the adjournment.
While great caution needs to be exercised when making findings of credit about witnesses, the way that the plaintiff minimised her prior experience with horses is relevant to this issue. In examination in chief, she portrayed herself as inexperienced and lacking in knowledge, and claimed to consult the defendant for lessons and advice, when she had been an experienced horsewoman since her early years; she had not only owned horses, but ridden in races, worked as a trail guide and worked at "Horselands". Horses were her main interest in life. The other matters relied on by the defendant are not, however, of relevance to the plaintiff's credit.
Did the plaintiff rely upon the defendant's superior horse expertise? The plaintiff's written submissions (at paragraph 50) assert that there is reliance by the plaintiff upon the defendant's horse expertise "such that she was prepared to obey and conform to the directions he gave her" and that she held his horse abilities in high regard (T 21 line 5). The plaintiff's written submissions also claim that she sought out and obtained lessons and instructions from "persons such as the defendant", particularly with regard to western riding (paragraph 47) and that he advised her in relation to the selection of horses (T 20).
The plaintiff did not give evidence of having lessons from anyone other than the defendant, and the details of these were extremely vague. Nor was there evidence that he advised her on the selection of horses; it was the plaintiff's decision to enter into a sell and swap agreement in relation to her horses, and on her own evidence the most she did was to consult the defendant about western riding lessons in this regard. Nor was there evidence of his being involved in the management of the property and animals on a day-to-day basis, apart from performing tasks at the plaintiff's request such as feeding the horses (written submissions, paragraph 51). The long hours the defendant was working, and the extent of his absences from the property, were not apparent until the defendant gave evidence.
The plaintiff also submits that if the defendant was aware that the mares had been returned to the property at the height of the breeding season, then "it is likely he would have made that enquiry of the plaintiff" (written submissions, paragraph 83). No transcript reference was given for this, and I cannot find a question which amounts to putting this proposition to the defendant in these terms. The defendant submits, and I accept, that submissions of this nature would fall outside the case as pleaded and particularised.
The plaintiff made a concerted attack upon the credit of the defendant both in cross-examination and in written submissions. It was put to the defendant that he had exaggerated his prior history of horse training activities (T 356-360) and that he exaggerated his involvement in the training of champions (T 360). In addition, it is claimed that the defendant acknowledged his wrongdoing by having the horse Wrangler shot. (This is dealt with in more detail in the section of this judgment at [242] - [249] below.)
The plaintiff's written submissions also refer to the evidence of the defendant and Mr Boileau that when the defendant and Ms Fenner (the defendant's former wife) joined Mr Boileau on a brumby hunt, there would have been mares in season. The defendant said in his evidence that he was not apprehensive about taking Wrangler into a situation where he could be confronted by a mare in season, which the plaintiff submits in evidence that the defendant was unconcerned about the danger.
However, this answer needs to be seen in context. Not even Ms Fenner gave evidence to this effect that it was dangerous to take Wrangler on a brumby hunt where there could be mares in season. Nor did the experts give evidence to this effect. The brumby hunt was an exercise in locating and attempting to capture brumbies, by a number of riders. It is the kind of activity to which I assume Mr Lawson is referring in his report where he says that the mere fact that a horse is a stallion does not mean that the horse should be "closeted away and never interact with other horses". It is up to the rider or handler of the stallion to look for possible problems or conflicts that could arise (Exhibit 2, paragraph 15) and this is what the defendant did on the brumby hunt.
Conclusions concerning the conversations alleged by the plaintiff
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.
There are additional problems. The conversation on the day of the horses being brought back to the property seven days before the accident would not amount to an appropriate provision of information about riding dangers a week later to the defendant, who was living away from the property and who had returned, it would appear, only on the day of the accident. The crucial conversation is the conversation which took place at about 2.30pm on 5 October 2009, which occurred when the defendant was already on his horse heading out of the stable and the plaintiff was getting stirrups and girth organised (Exhibit J, page 1). The plaintiff and defendant had already decided to go for a ride and were on their way. This 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.
However, if the defendant had knowledge of prior bad disposition of the horse Wrangler, and of the horse's tendency to become excited in the presence of other horses, whether mares or not, that would be a different basis upon which negligence could be asserted, and it is to this evidence that I now turn.
None of these incidents involved a horse in season. A finding of the horse having a bad disposition is evidence I could accept independent of any finding as to whether or not the defendant knew that the horse Aletist was in season.
Evidence in relation to the prior bad disposition of the horse Wrangler
It was the addition of particular 10(i) to the Amended Statement of Claim, concerning the alleged known propensity of Wrangler to become excited or agitated in the presence of other horses which led to the adjournment of the proceedings before Elkaim DCJ on 1 June 2011.
The plaintiff, in the opening to these proceedings, identified three examples as follows:
"Now if I could just stop there because your Honour will also hear some evidence that there'd been problems with this stallion Wrangler in the past. Particularly in the presence of other horses and particularly mares. Your Honour will hear evidence that at one stage whilst the defendant was riding Wrangler with another person who was riding a mare Wrangler had, whilst the other rider was still on the mare, attempted to mount the mare and that is particularly dangerous. Such that Mr Sanna says that if that had been known Wrangler would have been banned from any competition because of the dangerousness demonstrated by that action. It would be classified as a dangerous horse.
Furthermore, in the past Wrangler had escaped from its paddock and this is before the defendant knew the plaintiff in order to try and gain access to a paddock in which there were some mares and Wrangler had, as it were, gone quite berserk charging up and down the fence trying to get into the paddock where the mares were.
Then on a third occasion, also in the presence of other horses, Wrangler had been taken to a show and it had been secured to the horse trailer and then, in the presence of the other horses, had spent its time rearing and what's called screaming. So that it was known that this horse, Wrangler, had difficulties in the presence of other horses particularly mares." (T 3)
The plaintiff's own evidence does not touch upon any of these events, which occurred prior to her association with the defendant. As counsel for the defendant points out in his submissions (paragraph 137), the plaintiff is limited to the pleading. There are no particulars indicating that the horse Wrangler is alleged to have misbehaved in the presence of the plaintiff prior to the events on the day in question.
The principal witness to these events, on the part of the plaintiff, was the defendant's former wife, Ms Kate Fenner (T 284ff). The defendant called three witnesses: Mr Boileau, Mr Burgun and Mr Chant.
Mr Sanna, the plaintiff's expert witness, provided reports dated 6 December 2010, 9 May 2011 and 29 June 2011. These were short reports and the subject of some qualifications in the witness box. His evidence on relevant issues is referred to in relation to the particulars of negligence set out in this judgment.
Mr Robert A Lawson, the defendant's expert witness, provided a four-page report which is Exhibit 2. He was not cross-examined. The contents of that report are also referred to where appropriate in relation to the particulars of negligence set out in this judgment.
If I have erred in my finding as to the conversations on the day in question, the plaintiff was however sufficiently aware of the risk, according to her evidence, for her to query whether it was safe to ride into a paddock which contained a mare in season. She had a discussion of the briefest nature on the day of the accident. This was not a discussion of reliance; it was a casual remark that was made as they were heading out the stable door. The defendant was already on his horse and the plaintiff was in the process of finishing her saddling up. Accordingly, I am satisfied that the plaintiff and defendant, if I accept the plaintiff's description of the conversation, had a discussion about risk, and mutually agreed that they should still go riding. This is insufficient to establish the defence at common law. However, if the plaintiff and defendant had no such conversation, and they merely agreed to go for a horse ride, in circumstances where the plaintiff did not tell the defendant Aletist was in season, the plaintiff must be taken to have accepted the risk and the common law defence would succeed. This brings me to a consideration of the statutory defence.
In relation to the statutory extension of the volenti defence, I note the statements by McClellan CJ at CL in Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874 at [86]-[88] as follows:
"[86] Until the recent statutory amendments provided by the Civil Liability Act 2002 (NSW) a defendant faced a difficult task to prove volenti. Although a plaintiff may be aware of a risk that they might be injured, unless the defendant could prove that they appreciated the risk that they might be injured in a particular manner or to a particular extent the defence would fail. As Lord Halsbury LC said in Smith v Charles Baker & Sons [1891] AC 325 at 336, "a person who relies on the maxim must shew a consent to the particular thing done." Indeed, the defence has been so stringently applied that Campbell J noted in Tingle v J B Hinz & Sons [1970] Qd R 108 at 113 that:
Glanville Williams in Joint Torts and Contributory Negligence at p 307 says that in almost every negligence action of modern times where the defence has been raised it has failed. Fleming in his work on Torts (3rd ed) at p 259, predicts that the defence will disappear eventually into the limbo of forgotten things.
[87] Division 4 of Pt 1A of the Civil Liability Act 2002 (NSW) - particularly ss 5F and 5G - was designed to address this issue. The second reading speech to the Civil Liability Amendment (Personal Responsibility) Bill refers to the Ipp Report, which at p 129 indicates that the intention of Div 4 was "to encourage greater use by the courts of the defence of assumption of risk." It was noted in the Report that:
The more narrowly a risk is defined, the less likely it is that a person will have been aware of it. For instance, a person may be aware of the risk of suffering bodily injury as a result of engaging in a particular activity. But the person may not be aware of the risk of suffering bodily injury in a particular way.
[88] Accordingly, the Report recommended the enactment of the following provisions:
A provision to the effect that for the purposes of the defence of assumption of risk, it would be presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person could prove, on the balance of probabilities, that he or she was not aware of the risk (para 8.30);
A provision to the effect that for the purposes of the defence of assumption of risk, the test of whether a person was aware of a risk is whether he or she was aware of a risk of the type or kind of risk and not of its precise nature, extent or manner of occurrence (para 8.31)."
Whether the plaintiff told the defendant Aletist was in season or not, she was an experienced horsewoman; she was sufficiently aware of the specific dangers to raise them with the defendant. She was aware of the type or kind of risk, even if she was not aware of its precise nature, extent or manner of occurrence. She knew that stallions were dangerous and that this particular stallion was "nippy". She had previously been thrown from a horse and suffered an injury. She knew that horses could be dangerous. She knew that horses suffered injuries and attacked each other in relation to being in season, as she had owned a stallion who had been injured in the course of attempting to mate with a mare. All of these matters make it clear that the plaintiff was well aware of the risks of horse riding and in particular of 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 the defendant.
I am satisfied, in relation to the statutory defence, that the elements necessary for the statutory defence to be made out have been established by the defendant.
Alleged admissions by the defendant
Section 69 of the Civil Liability Act 2002 (NSW) provides:
"69 Effect of apology on liability
(1) An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person:
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and
(b) is not relevant to the determination of fault or liability in connection with that matter.
(2) Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter."
Evidence was given by both the plaintiff and her mother as to admissions from the defendant to the effect that it was all his fault. The defendant submits (written submissions, paragraphs 347-348) that the evidence given by the plaintiff's mother firstly does not constitute an expressed or implied admission of fault and secondly is inadmissible pursuant to s 69 and this evidence should be struck out. The statements made were as follows:
"Q. Did he have a discussion with you about something which had occurred?
A. Yes, he did.
Q. Doing the best you can and trying to put it in the first person - in other words, I said, he said - what can you tell us was said during that conversation?
A. Alan - he said, "Lorna's been injured, there's a compound fracture of her femur and the ambulance has come and helicopter is on its way".
Q. Did you respond at all to that?
A. I said, "Did she have a fall from her horse?" and he said, "No, it was my fault, my horse". I asked, "Has there been much blood?" and he said, "No, there's no bleeding". I asked that question twice because I was very concerned about bleeding out--
Q. This was after you heard about the compound fracture?
A. Yes.
Q. I asked, "Which hospital?" and he said, "Westmead" and I said, "I'll be leaving here in ten minutes and he replied that he had some things to do and he would get thee when he could." (T 314)
All that the defendant was saying was that the plaintiff had not fallen from her horse but had fallen because it was "my fault, my horse". That is not an admission about liability, but a description of the accident. Accordingly, the evidence does not amount to an admission.
A second matter which is relied upon as an admission (plaintiff's written submissions, paragraph 164) is that some time after the accident the stallion Wrangler was taken to the local abbatoir and shot. The plaintiff submits that this is significant, as,
"[i]f indeed the stallion had no propensity for misconduct, as suggested by the Defendant, it would be unlikely that he would cause the animal to be destroyed for what he claims was but an aberration, particularly given the total costs of the stallion, including transporting from the US to the UK and UK to Australia."
The explanation given by the defendant for having the horse destroyed was as followed:
"I was in a relationship with Lorna and she couldn't bear to look at him. I made that decision and I stand by it." (T 443)
He was asked why he had not simply arranged for the horse to be taken to another property and he said:
"Because he was my horse and I was emotionally distraught and this is what Lorna - this is what I felt Lorna would feel best by so it's what I did. At the time he was the national champion though he was the only one at the Show at this particular - he had huge potential. I did this for the reasons I've stated." (T 444)
In written submissions, Mr Jones says that the "suggestion" that the stallion was destroyed for these reasons makes no sense, as it would have been a simple matter to relocate the stallion on another property in order to be away from the plaintiff.
I do not accept this submission. The plaintiff had been very seriously injured and the defendant was distraught. They were in a de facto relationship at the time. The destruction of Wrangler was, I find, for the reasons stated and not an admission by the defendant that the horse had a bad propensity, nor was it an admission by the defendant that he had given the advice which the plaintiff claims he gave her on the day of the accident prior to the plaintiff and defendant setting out on their ride.
Conclusions concerning liability
I have found in favour of the defendant on the issue of liability.
In the event that I have erred in my findings in favour of the defendant, I set out my findings in relation to contributory negligence.
Contributory negligence
The particulars of contributory negligence set out in the defence are as follows:
(a) The defendant relies upon the facts and particulars pleaded in paragraphs 13 to 31 above.
(b) The plaintiff failed to inform the defendant that "Aletist" was in season.
(c) The plaintiff failed to avoid riding her horse "Freckles" in the company of "Wrangler" in the direction of, or near, or in the vicinity of, "Aletist" which was in season.
(d) The plaintiff failed to advise or warn the defendant not to ride "Wrangler" in the direction of, or near, or in the vicinity of, "Aletist".
(e) The plaintiff failed to prevent or stop or avoid the defendant riding his horse "Wrangler", which was a stallion and "fresh", in the direction of, or near, or in the vicinity of, the plaintiff's horse named "Aletist" which was in season.
(f) The plaintiff failed to take due care for her own safety.
Sections 5R and 5S of the Civil Liability Act 2002 (NSW) provide as follows:
"5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
The plaintiff was wholly responsible for the decision to put the two mares in the arena paddock in which she and the defendant had been regularly riding for the past eight months. She was the owner of the property, she was responsible for the transfer of these mares, which were her property, and she formed the decision to put them in this paddock without consulting the defendant.
The defendant was absent from the property and would have had no way of knowing that either of the horses was in season unless he was told by the plaintiff. Being told seven days beforehand that a horse was in season would not, as I have already found, have been enough to put him on notice, in relation to his Saturday ride with the plaintiff, that there was a horse in season in the paddock in which the parties regularly rode, if the plaintiff started saddling up for the ride without mentioning the matter. The question is whether or not the plaintiff reminded the defendant on the day of the accident that the paddock in which they usually took their rides was not available because she had put a horse in season into that paddock.
I have indicated I do not accept the plaintiff's evidence that she did have such a conversation. If she did not tell the defendant (and I note again that this is a case of actual knowledge being pleaded, not constructive knowledge of the potential for danger) then this was negligence to the standard considered by the court to be appropriate for a finding of 100% contributory negligence as authorised by s 5S Civil Liability Act 2002 (NSW). This is negligence at the same standard as the conduct of the plaintiff in Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25 and in Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257 where Rothman J explained at [132]:
"[132] The relative culpability of the State of New South Wales and Ms Adams, on the above analysis, would result in Ms Adams' contributory negligence being 100% of the damage caused. Section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 provides that contributory negligence does not defeat the claim for damage. However, ss 5R and 5S of the Civil Liability Act, require the Court to apply the same principles in determining contributory negligence, as are applied in determining the claim for negligence. In that respect, the standard of care in contributory negligence is that of a reasonable person in the position of that person. I take that to include the diminished responsibility of Ms Adams. Further s 5S of the Civil Liability Act reinstates the outcome that contributory negligence can be assessed at 100% of the damage. This is not a reinstatement of the historical position that contributory negligence was a complete defence. Historically, minimal contributory negligence would be a complete defence to an action in negligence. This simply clarifies that in assessing relative culpability and respective share in the responsibility, the Court is entitled to come to a view that the contributory negligence should be assessed at 100% of the cause of the injury."
If I have erred in accepting the evidence of the defendant as to the conversation on the day in question, the plaintiff still failed to take due care for her own safety by creating the danger in the first place, in that she put two mares, one of whom she knew to be in season, in the paddock which she knew was used for weekly rides by herself and the defendant. Had she put these two mares into another paddock, the likelihood of the accident occurring would be non-existent. There was no reason for these horses to be in this particular paddock, and it would have been a straightforward matter for the plaintiff to put them in another paddock; the plaintiff said that she suggested to the defendant, on the morning in question, that these two horses could have been easily moved to another paddock. This is part of the evidence which suggests that there were other paddocks in which these horses, one of which was in season, could have been placed, and that this should have been done by the plaintiff.
The defendant, who was living away from the property during the week, and who was not the owner of the property or of the horses in question, had no say in which paddock the horses were placed. While the precise date when the horses were returned to the property by the plaintiff is in doubt, it is not disputed that it occurred at a time when the defendant was not living on the property, and that he continued to remain away from the property until the day of the accident apart from the carrying out of the feeding. As I have indicated elsewhere, I do not accept the submissions of the plaintiff that the defendant would have occasion to observe that Aletist was in heat while carrying out the feeding.
Essentially the plaintiff's argument is that the defendant failed to warn her of the consequences of her actions in placing a mare in season in a paddock when which it was her practice to ride with the defendant.
In Mackenzie v The Nominal Defendant (2005) 43 MVR 315, the Court of Appeal set aside a finding of contributory negligence of 100% and substituted a finding of 80% where a passenger responsible for putting an inexperienced friend without a driver's licence and with no prior experience on a motorcycle as a rider.
The correct approach of the court to a finding for contributory negligence was explained by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494 per Gibb CJ, Mason, Wilson, Brennan and Deane JJ as follows:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
Taking into account the significance of the various elements involved in an examination of the plaintiff's conduct, I am satisfied that even if the plaintiff did tell the defendant on the day she transferred the horses to the top paddock and reminded him of this prior to going on the ride, her role in creating the risk was so significant that a percentage for contributory negligence comparable to Mackenzie v The Nominal Defendant, namely 80%, should be apportioned. Her statement that one of two horses had been in season up to seven days prior to the proposed ride was only one of the factors which led to the accident. The plaintiff's significant role in creating the risk needs to be given full weight when considering issues of contributory negligence.
Quantum
I also set out some short alternative findings in relation to the submissions on quantum of damages.
It is not in dispute that the plaintiff suffered very serious injuries. The medical issues are substantially not in dispute. The plaintiff's damages schedule is as follows.
Plaintiff's damages schedule
The plaintiff's damages schedule is as follows:
Plaintiff's Date of Birth:
21 June 1966 - Current Age 45 years
Medium Life Expectancy:
43 years - 5% multiplier = 938.2
Date of Injury:
5 October 2009
Non-Economic Loss - 38%
$197,500.00
Out of Pocket Expenses
$37,606.29
Future Out of Pocket Expenses:
(a) General Practitioner (once every 5.5 months @ $69 per consultation - AMA Rates - T 75 line 21) (12 ÷ 5.5 x 69 ÷ 52 x 938.2)
$2,716.00
(b) Orthopaedic Surgeon (consultation once every 6 months @ $150 per consultation - AMA Rates ($150 ÷ 26 x 938.2)
$5,413.00
(c) Radiology (Allow)
$500.00
(d) Arthroscopy (3 years - Dr Ryan 21.04.11 p1.5) ($2,500 x 0.864)
$2,160.00
(e) Debridement (5 years - Dr Ryan 21.04.11 p1.7) ($5,000 x 0.784)
$3,920.00
(f) Total Knee Replacement (12.5 years - Dr Ryan 21.04.11 p2.1) ($22,500 x 0.544)
$12,240.00
(g) Medication ($5 per week - T 72 line 49) ($5 x 938.2)
$4,691.00
(h) Liniments & Heat Packs ($219 per annum - T 75 lines 30-45) ($219 ÷ 52 x 938.2)
$3,951.00
(i) Physiotherapy ($50 per fortnight - T 75 lines 27-50) ($50 x 0.5 x 938.2)
$23,455.00
(j) Hydrotherapy ($15 per 2 months - T 75 line 9) ($15 x 6 ÷ 52 x 938.2)
$1,624.00
$60,670.00
Griffiths v Kerkemeyer:
(a) Past:(i) 23.10.09-31.12.09Greater than 40 hours per week - Maximum rate - $940 per week (T 58 line 20 - T 63 line 20, T 315 line 10 - T 317 line 33, M Ellis 7.10.11 p2)(ii) 01.01.10-24.05.1020 hrs per week @ $24.75 per hr (M Ellis 7.10.11 p2)(iii) 29.05.10-01.10.10 30 hrs per week @ $24.67 per hour (M Ellis 7.10.11 p2)(iv) 02.10.10-05.12.117 hrs per week @ $25.65 per hour (T 75 line 50, M Ellis 7.10.11 p2)* Dates as appearing on plaintiff's damages schedule
$8,460.00$9,900.00$15,913.00$11,380.00
$45,653.00
(b) Future Paid Domestic Assistance:3.5 hrs per week @ $64 per hour (T 76 line 1, Dr Bodel 22.3.11 para 12, M Ellis 7.10.11 p3.6) (3.5 x 64 x 938,2)
$187,640.00
(c) Future Paid Property Management Assistance: Horse feeding $50 pw (T 74 line 20); Gardening $90 per mth (T 73 line 32); Clearing & Maintenance $175 per qtr (T 74 line 4; M Ellis p3.8) (86 x 938.2)
$80,685.00
Economic Loss:(a) Past (agreed)(b) Interest (agreed)($35,000 x 0.7 x 2.1 x 0.05)(c) Superannuation Loss (agreed)($35,000 x 0.11)(d) Future Economic Loss(Cushion)
$35,000.00$2,573.00$3,850.00$150,000.00
$191,423.00
TOTAL
$801,177.29
Non-economic loss
The plaintiff submits that the percentage of a most extreme case pursuant to s 16 Civil Liability Act 2002 (NSW) is 38% while the defendant submits it is between 30% and 32%. In my view, having regard to the seriousness of the plaintiff's injuries, 38% would be appropriate.
Past and future out-of-pocket expenses
Past out-of-pocket expenses of $37,606.29 are agreed.
The defendant submits that the claim for future out-of-pocket expenses is excessive in that the plaintiff does not have the need to attend her general practitioner or orthopaedic surgeon as often as claimed. This is particularly the case as the possibility of an arthroscopy and knee replacement is only expressed by Dr Ryan to be a possibility in that the plaintiff "may" require such treatment. However, the possibility of a knee replacement given the degree of the plaintiff's injury does seem more likely than not and it is accordingly appropriate to make the kind of allowance that has been made by the plaintiff in the damages schedule.
I note the opinion of Dr Ryan about a mobilisation program. While the amount claimed seems high, it is appropriate to allow for costs of the kind outlined by Dr Ryan and I would allow this item.
In relation to hydrotherapy, the benefits of this form of exercise for injuries of this kind is commonly observed in claims for damages. The claim is modest in compass ($1,624.00). I would allow the amount.
Past and future home care and domestic assistance
The claim for past home care and domestic assistance is not disputed by the defendant.
The claim for future paid property management assistance, feeding horses and looking after the farm is asserted not to be commercial assistance and therefore not claimable. I do not accept this submission. These are tasks which are beyond the plaintiff to perform and it is appropriate that these kinds of job should be performed by someone who is paid to do them.
Past and future economic loss
Past economic loss is agreed. A claim of $150,000.00 as a cushion for future economic loss is claimed.
In this regard, I do accept the submissions of the defendant. This is a very substantial sum to be claimed as a cushion in circumstances where the plaintiff has not only returned to work at her former employment, but has also managed to continue her second job of working at Horselands.
The plaintiff is working in a managerial role in secure government employment, in a situation where she can manage her work hours. She has sufficiently recovered to participate in her second job. She is able to perform that second job notwithstanding the fact that it involves standing for long periods of time. I agree with the submission of the defendant that an allowance of one year's income of $50,000.00 would be a more appropriate cushion.
Accordingly, in the event that I have erred in finding for the defendant, the amount to be awarded would be $701,177.29. If my findings concerning contributory negligence were accepted, this amount would be reduced to zero (if the plaintiff's failure to advise the defendant were accepted) or 80% (if the finding that the plaintiff did tell the defendant was held to be the correct finding of fact). The 80% figure would result in a reduction of $560,941.83 and result in a total of $140,235.46.
Costs
I have made an order below for judgment in favour of the defendant. In anticipation that there may be issues in relation to costs, I have reserved the issue of costs with liberty to apply. This will include the costs of the vacated hearing of 1 June 2011.
Orders
Accordingly, I make orders as follows:
(1) Judgment for the defendant.
(2) Costs reserved.
(3) Liberty to apply in relation to costs.
(4) Exhibits to be retained until further order.
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Decision last updated: 20 April 2012
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