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Liability Court Cases

by Dave Collins on August 19, 2016

EXAMPLES OF PUBLIC LIABILITY COURT CASES

Slip on milkshake in Shopping Centre – Terrazzo

Slip on milkshake in Shopping Centre – Escalator

Slip in Shopping Centre entry during wet weather

Trip on external Shopping Centre paving

Slip on chip in food court

Slip on Wood chip in car park

Slip on cherry in Shopping Centre

Raped after a fall

Jumping thru garden bed

Horse riding accident

79 year old falls over retail rack

Fall from a fireplace hearth in Hotel

Alcohol Related

Some interesting cases can be found here: http://www.bnlaw.com.au/files/pdf/Casebook_2007.pdf

OCCUPIER’S LIABILITY/DUTY OF CARE

Definitions:

Plaintiff:      Person making a claim (ie an injured person) who must prove that the defendant was negligent.

Defendant:   Person or organisation who has a claim made against them.

Third Party: Person or organisation who has some involvement in the claim (ie cleaning company).

Appellant:    Plaintiff who appeals to a higher court.

Respondent: Defendant in an appeal case.

The shopping centre owner as occupier of the premises, and having control over both the premises and the entry of people onto the premises, has a common law duty of care to those who suffer injury on the premises.

Where the occupier has, prior to the risk eventuating, taken steps with a view to obviating or reducing the risk, the evidential burden on the injured party is to establish that the steps taken constituted an unreasonable response to the risk.

If it is shown that inadequate preventative steps were taken then the question is if the Defendant had taken reasonable care, would the Plaintiffs injury, on the balance of probabilities, have been avoided or reduced; again the onus of proof is on the injured party.

Spillage cases pose particular difficulty where a substance has been spilled in premises through which a large volume of people pass, an occupier’s duty clearly requires him to put in place a reasonable system of inspection and cleaning.  Once it is established that such a system was not in operation at the relevant time, the critical question is whether the Defendant’s negligence was a cause of the Plaintiffs injury or whether a proper system would have avoided the injury.  This question is determined on the balance probabilities.

The position was put quite succinctly by Justice Ormiston in a Victorian Court of Appeal case of Kocis v S E Dickens Pty Ltd where His Honour said:-

“It may be accepted as a starting point that if a person enters upon the premises of another and slips on something on the floor, that does not in itself betoken negligence. But if it is a customer who has fallen in the Defendant’s supermarket after slipping on something that has been spilt on the floor in one of the aisles around the shelves and in an, area where such spillages are to be expected from time to time during the day, the Plaintiff’ will ordinarily be able to rely upon the obligation imposed on the Defendant to take reasonable care for the safety of its customers, and to that end to have in place some sort of system for cleaning the floor from time to time in. order to overcome the risks of slipping created by such spillages.

His Honour Mr Justice Higgins in the AC’I’ Supreme Court decision of Kelly v Lend Lease Retail Pty Limited said that the duty will be breached and liability established by the injured party in any one of the three circumstances referred to below:-

1.     If it appears by evidence, however slight, that the foreign matter in question had been on the floor in question for a greater time than is reasonable before it ought to have been seen and removed;

2.     If it appears that no reasonable system for inspection and cleaning of the floor was in place having regard to expected hazards, it may be inferred that it is probable that if such a system had been in place then the fall would have been avoided;

3.     If the substance was one which ought not to have been allowed on the floor in the first place then the Defendant will be liable whether or not the cleaning system is reasonable and however long it had been there.

Initially, Haines sums the situation up when lie says in the Kocis decision that:-

“It is clear that an occupier of premises is no insurer of those who enter the premises. All that is required of an occupier is that reasonable care be exercised.  It follows that the occupier is not to be held liable if a person entering the premises slips upon something which the occupier could not, by the exercise of reasonable care, be expected to have cleared away”.

The task of cleaning the centre is able to be delegated to contract cleaners.  In the agreement with the contract cleaner, the shopping centre owner will usually contract for a certain level of service to be provided by the cleaner.  The shopping centre owner must be satisfied that the level of service which it acquires is sufficient to ensure that its duty to people coming on to the premises is fulfilled.  The duty on the shopping centre owner is ongoing and as a consequence it is incumbent upon the shopping centre owner to ensure that the safety of people coming onto the premises is not compromised.  The shopping centre owner should be satisfied that the cleaning system is such that should the cleaning contractor fail to provide the agreed service, then the shopping centre owner and the cleaning contract or both will be in a position to detect the failure and rectify the situation.  The shopping centre owner cannot simply delegate the cleaning task and forget about it from thereon.

The cleaning contractor owes a contractual duty to the shopping centre owner as well as a common law duty to people coming on to the premises.  The contract cleaner must therefore perform its role to the best of its ability within the confines of the agreement struck with the shopping centre owner.  If ultimately a Court finds that the system put in place does not adequately protect customers then generally it is not the cleaner who will be held responsible to the injured customer, but rather the shopping centre owner.  The contract cleaner will only be held responsible where there is some failure on its part to maintain the cleaning process.

Shopping centres and supermarkets are a unique location in terms of the duty owed to people coming onto the premises.  In response to strong community expectations of safety in these premises, there has been a tendency by the Courts to demand a very high standard of safety precautions.  The public nature of the premises, the occupiers interest in encouraging the greatest number of people to come there, the likelihood of spillage and the general expectation of safety precautions mean that the standard of care owed to customers is very high.

CASE STUDIES

Mercouris v Westfield Shopping Centre Management Co Pty Ltd (Supreme Courtof New South Wales, 29 March 2000)

·       The Defendant operated the Westfield Shoppingtown at Parramatta.

·       The Plaintiff entered from a car park on an upper level and went down to level 3. On that level were Grace Bros, David Jones and K-Mart stores and about 50 shops around the central common area.

·       As the Plaintiff walked in the common area outside a handbag shop known as Bradmans, she slipped and fell.  She did not see anything on the floor before she fell but it was found that she slipped on a chocolate melted ice-cream or thickshake substance on the floor.

·       The Plaintiff fell at about 3.45pm. The floor had been clean and dry when the cleaner passed Bradmans less than 10 – 15 minutes prior to the fall.  From the footprints in the spillage it appeared that someone had walked through it shortly before the Plaintiff fell.

·       The “looping” of the cleaners, as it was described by the Court took the cleaner about 10 15 minutes depending upon the congestion in the shopping centre and whether he or she had to attend to other spills.  The cleaners carried a mop and bucket and two-way radio so that if security staff at the shopping centre found a spill security could call the cleaner to go immediately to the area of the spill.

·       A shop assistant in Bradmans became aware of the spill on which the Plaintiff fell a few minutes before the fall (the time being left imprecise).  The shop assistant did not report it to management because she thought it would be cleaned in the normal course by cleaners who passed by regularly.

·       The trial judge found that there was an adequate system of cleaning and inspection in place.  The Court of Appeal agreed.  The Court of Appeal said:-

“No doubt foodstuffs including ice-creams, thickshakes and milkshakes would be brought to Level 3 from other levels in the shopping centre and to the part of the common area outside Bradmans, for example from the McDonalds outlet, but it was not a situation where constant contamination of the floor would be expected”.

·       The Supreme Court agreed with the trial judge’s rejection of a submission that it was incumbent on the Defendant to have in place video surveillance of the common areas of the shopping centre.

·       As to the adequacy of the cleaning system the Court of Appeal said:-

“Whether it was adequate or inadequate was a question of fact, decided according to whether it was a reasonable, response to the risk of injury to those visiting a shopping centre. In my opinion it was. The system provided for regular cleaning every 10 – 15 minutes and immediate cleaning on call of a spillage was reported….. The short time between the passages of the cleaner and the facility for calling him to a spillage was a reasonable response to the risk for the area outside Bradmans”.

·       Another submission made on behalf of the Plaintiff appellant was that the Defendant ought to have provided a floor surface that was safe when contaminated by spillages.  In this regard evidence was given by an engineer about the type of floor which could be used.  In relation to this, the Court of Appeal said:-

“According to Mr Simpson (the engineer) flooring materials were available whose friction properties were not reduced by contamination by liquids, being ,flooring materials with a grit or. sand like substance within the surface so that even if contaminated they provided a secure footing.  Mr Simpson expressed the view that such a surface was “the only reasonable surface for common areas such as food halls or the like”. There was no evidence of cost, aesthetic considerations or other practicality in having flooring materials of this kind.. The relevant area on Level 3 was not in the nature of a food hall, and I do not think that the Plaintiff is really assisted by this opinion… If the Defendant had in place an adequate system of cleaning and inspection I do not think it had to provide a floor surface resistant to the effect of spillages”.

Sarantidis v Westfield Shopping Centre Tea Tree Plaza (District Court of South Australia, 29 April 1997)

·       The shopping centre consisted of 2 levels.  Level one consisted of specially shops, a supermarket, a department store and a food court.  Customers had the option of consuming their food and drinks at the tables and chairs in the food court or taking the food and drink away from this area.  The principal or most convenient entry from Level 2 to the food court on Level 1, or exit from the food court on Level 1 up to the shops on Level 2, was by way of an escalator situated in the food court area.

·       After spending some time on Level 1 the Plaintiff took the escalator up to Level 2. At the top of the escalator on Level 2, the Plaintiff stepped off the stairs onto the metal plate and in doing so slipped on what he described as a thickshake or melted ice-cream.

·       The Defendant called evidence of a cleaning system which it said operated in the walkways and other common areas of the shopping centre at the time of the accident.  It contracted out the cleaning to Tempo Cleaning Services.

·       Defendant said that from the time the shopping centre opened until it closed there were 3 cleaners on duty in the food court.  The number of cleaners in the food court increased to 6 during the lunch period.

·       The Defendant said that there was a 15 – 20 minutes to complete a circuit of the walkways on that level. The area immediately in front of the exit point at the top of the escalator was part of that walkway.     The Defendant said that the time it took to complete a circuit on Level 2 was an estimate.  There had been no actual timing of a cleaner performing these duties

·       The cleaning supervisor gave evidence that the cleaner on Level 2 would take roughly 15 – 20 minutes to complete a circuit of the walkway ie 15 minutes if there were no spillages and 20 minutes if there were spillages.  He did not say how he estimated the time for completion of a circuit.

·       Defendant submitted that it had discharged its duty of care as a result of the cleaning system it said was in operation at the shopping centre on the day of the accident.

·       The Court saw that it was required to answer the following questions ie did the Defendant have a cleaning system operating on the day the Plaintiff sustained his injury and if so did that cleaning system discharge the Defendant’s duty of care?

·       Court said that the food and drink sold in the food court made it likely that from time to time slippery substances would appear, not only on the floor of the food court but also on the escalator, the walkways and other common areas of the shopping centre.  The Court said:-

“Experience in the use of escalators would indicate that a clumsy exit is possible at the point where the moving escalator steps cease and the user steps on to the stationary exit plate “.

·       The cleaner on Level 2 at the relevant time was not called nor was there any direct evidence given about the system in place save for the supervisor’s recollection of what was required at the time. The Court found the evidence to be of little assistance to it.  In particular. the Court said:-

“I do not accept the submission by Counsel for the Defendant that, in the circumstances of this case, the giving of evidence of a general nature regarding the cleaning regime is sufficient to establish that there was a cleaning system in operation on the day of the accident and the nature of that system…I am not satisfied that there was on the day of the accident a cleaner performing her duties in the manner described by the general evidence given by witnesses for the Defendant”.

·       The Court concluded:-

“It follows from what 1 have said that I find that there is no evidence of any cleaning system operating in the walkways on Level 2 and in the area where the accident occurred on that day.  In my view, the circumstances here require that the Defendant have an operating cleaning system which included the area of the escalator exit plate.  In the absence of any evidence of a cleaning system operating on the day of the accident I find that the Defendant was in breach of its duty of care to the Plaintiff in that it did not have an inspection and cleaning system operating at all.

Even if I was satisfied that the evidence disclosed that there was a cleaning system operating on the day of the accident in the manner described by the general evidence provided by the Defendant I should indicate that 1 would not have been satisfied that such a system was adequate to discharge the Defendants duty to take reasonable steps for the safety of its customers.  As I said earlier, in my opinion, the area at the top of the escalator was a likely danger point for the spillage of slippery substances being carried from the food court to Level 2. It seems to me that when considering an adequate cleaning system that this point needed to be treated as if it was part of the food court”.

Scott v Patterdale Pty Ltd (Queensland District Court, 27 November 2000)

·       The Defendant was the occupier of the Pialba Place Shopping Centre at Hervey Bay.  The Plaintiff slipped not far inside the automatic doors giving entry from the outside car park to the concourse of the shopping centre at about 8.20am on a Monday.  The floor was polished terrazzo of creamy colour which it was agreed would be slippery when wet.  Water was also not easily detectable on this type of floor.

·       No one at the time was able to identify any substance or particularly slippery area on the floor which might have explained the accident.  Ultimately the Court accepted that the Plaintiff had slipped on water which had been walked into the centre.  It was raining outside at the time.

·       The Court said:-

“In wet weather water would get on to the floor inside the automatic doors through which the Plaintiff entered and give rise to a risk of customers slipping, which had to be guarded against.  The precautions available included constant mopping of the floor (to the extent that the Defendant on some days might engage a person over and above the ordinary cleaning staff to attend to it), placement of at least one of the now familiar yellow cones which warn of a slipping hazard, and replacement or supplementation of the usual 1. 2m x 1.7m mat placed to straddle both sides of the automatic door with long runners hired from a local dry-cleaner. The likelihood of water being “tracked” onto the terrazzo floor in all kinds of ways including by shopping trolleys and by dripping ,from customers clothing and umbrellas was well known to the Defendant and furthermore I would think is notorious generally”.

·       The Court found against the Defendant shopping centre owner.

·       The Defendant issued third party proceedings against the cleaners asserting a failure by the cleaners to comply with their contractual obligations as cleaners of the Centre to keep the Centre in such condition as to be safe for the use of members of the public.

·       With regard to the third party claim the Court said:-

“It seems to me to have been established that during the relevant day shift, only one cleaner was to be provided.  What he or she could achieve was necessarily limited, given the large size of the Pialba Centre.  While there might have been an expectation that cleaning staff would get to the Hunter Street entrance roughly every 15 minutes, the exigencies of the job, such as spills or messes elsewhere, might preclude this.  I do not think the third party was in any sense guaranteeing or committed to achieving a Pialba Centre which was safe for the public. 1 think the deficiency which leads to the Defendants  liability was in its system and that it, and not the third party, bears responsibility for the deficiencies”.

George v  AMP Shopping Centre (South Australian District Court, 15 May 1997)

·       The Plaintiff alleged that she slipped and fell outside of the Centre near the “southern entrance”.  The Plaintiff said that she exited the shopping centre through one of the sets of sliding doors and was walking on the pavement which consisted of brick paving when her legs went from underneath her as a result of which she fell to the ground. The Plaintiff said that she noticed some reddish brown coloured dirt on the pavers which she says was the reason that she slipped and fell.

·       It was the Defendant’s case that there was no dirt present, of whatever colour, at or near the point where the Plaintiff slipped and fell.  The Defendant pleaded in the alternative that, even if dirt had been present and the Plaintiff had slipped on such dirt, the Defendant had not been negligent as alleged by the Plaintiff or at all.  In particular, the Defendant asserted that it had in place a system whereby all walkway areas open to the public were checked at least every 20 minutes for the presence of dirt or other material upon which a member of the public might slip and that if such substance were detected, it was removed.

·       Ultimately the Court rejected the Plaintiffs evidence that there was dirt on the brick paving upon which she slipped.  This was due to the weight of evidence provided by other witnesses who said that they saw nothing on the ground.

·       The Defendant occupier had joined the cleaner as a third party.  The Court said that.-

“All that the evidence discloses is that the Plaintiff slipped and fell on the brick paving outside the southern entrance of the shopping centre for some unexplained reason.  It is the absence of that explanation which must exonerate the Defendant. if the Defendant is exonerated so is the third party Even if it is assumed that there was dirt present on the paved area where the Plaintiff slipped and fel1, that does not mean that the Defendant was necessarily negligent”.

·       The Court went on to say:-

“The Defendantrequired its cleaning contractors to ensure that all public areas if the shopping centre were inspected at least once every 20 minutes for the presence of substances on the floor or paving on which the members of the public might slip and to remove same if detected.  Indeed all members of’ the Defendant’s staff engaged in running the shopping centre including security personnel were made aware of the need for vigilance to ensure that the floor, and walking surfaces are kept clean1 am satisfied that the Defendant took reasonable precautions for the protection of members of the public and provided adequately for the “due and careful implementation of those precautions “.

Allcorp Cleaning Services Pty Ltd v Fairweather & Anor (New South Wales Court of Appeal, 29 June 1998)

·       ‘The Plaintiff was injured when she slipped on a potato chip in the Ashfield Shopping Mall.  It was a busy Saturday lunchtime where there were about 80 tables and 200 people using the area.  The tables were located in a central area between a number of food outlets.  The floor was of a terrazzo type.

·       The centre was owned by Queensland Investment Corporation. it settled the claim made by the Plaintiff.  The Defendant then pursued its cleaning contractor for tile money it paid to the Plaintiff.

·       There was a cleaner who was required to attend exclusively to the food court area.  The evidence was that had he done so, he would have been covering each part. of the area approximately every 15 minutes.  There was however no evidence regarding the presence of the cleaner on site at the time and the contrary witnesses said that they had not seen a cleaner for some time prior to the fall.  The cleaner was unable to be contacted or at least did not give evidence.  The trial judge said there was a clear inference on the evidence that there was no cleaner in the area for a substantial period of time. The Court of Appeal accepted that the evidence supported this inference being made.

·       The trial judge concluded that the third party (cleaner) was as between the Defendant and third party the negligent one and that the accident was totally the fault of the third party

·       Whether or not the Court accepted the 15 minute coverage (which it was argued would have been the coverage if the cleaner had been there) is unclear.  Justice Stein says:-

” The inference drawn by His Honour, the Trial Judge, that there was no cleaner in the food hall for up to three quarters of an hour was one which was open to him. If the system had been followed, the probabilities would have been that the chip would have been detected and removed”.

Justice Priestley said.-

“On the facts as found by the Trial Judge, if that cleaning system had been functioning as it should have been, it is my opinion more probable than not that the chip which caused the fall, would have been seen and moved before the accident “.

Kelly v Lend Lease Retail Pty Ltd (ACT Supreme Court, 16 April 1993)

·       The Plaintiff, a 60 year old lady slipped on a woodchip in the common area of the Woden Shopping Square. Tile Plaintiff was walking in the general area of the shopping centre outside the Florscheim shop when she says that she stepped on the woodchip as a result of which she fell and injured herself.  The Plaintiff says that she also noticed other rubbish in the area including potato chips, drink clips and cigarette butts.

·       The Defendant said that it had engaged 3 cleaners and a maintenance crew who had instructions to clean up anything they noticed on the floor.

·       With regard to the evidence given by the cleaner the Court said:-

“Mr Drago Brozininic, Manager of Berkeley Challenge,, the cleaning contractor, gave evidence for the Defendant. In some respects, his evidence was not entirely satisfactory. This, no doubt, was, for the most part, because he had not been asked to provide timely details of cleaning arrangements (as at May 1985 until 1 February 1993.  He had no records from that time to draw onThe evidence as to the presence or absence of cleaning staff, the general likelihood that cleaners were engaged in reasonable numbers and were carrying out their duties with reasonable diligence, is quite unsatisfactory”.

·       The Court went on to say:-

“In any event, it seems to me that, given it was the summer holidays, the number of small but active children was likely to have been greater.  They were likely, more than usually, to dislodge the woodchips or bark pieces, They were also more likely and more frequently than usual to spill and drop things onto the .floor.. Increased vigilance was called forThe absence of evidence of the cleaning done on that day is significant.  The only evidence of the cleaning arrangements was that of Mr Brozininic and Mr Francis.  Evidence was of general practice.  No records were produced as to who was actually doing the cleaning on that day.  It is not even clear whether the assigned cleaner was on duty at the time of the fall”.

·       The Court found in favour of the Plaintiff.

Wilson v Yeperenye Pty Ltd (Northern Territory Supreme Court, 24 May 1996)

·       The Plaintiff was walking with her husband through the shopping centre when she fell and injured herself in a common area as a result of slipping on a cherry.

·       Woolworths had a sale on cherries at the time.

·       The system employed by the occupier required the cleaner to conduct circuits of the public areas of the Centre to sweep and spot mop.  Each circuit took approximately 5 minutes to complete.  The system also required the cleaner to leave the floor of the premises to clean the toilets at the time when the cleaner felt that it was safe and expedient to do so.  This would take a maximum of 15 minutes.

·       Approximately 15 minutes before the accident the cleaner had conducted his rounds through the area where the Appellant fell.  The cherry was not there at that time.  He then left the floor to clean the toilets and was away for a maximum of 15 minutes.  The premises were not crowded or in heavy use at the time.  The specially shops in the Centre had all closed at 5.30pm.

·       The trial judge found that the Respondent had provided an adequate system of cleaning and that the fall was not caused by the Respondent’s negligence.

·       One of the grounds of the appeal was that the occupier knew of the cherry sale which constituted a special known risk for which the Respondent failed to provide an adequate response.

·       The other grounds of appeal went to the system of cleaning including the absence of the cleaner whilst cleaning the toilets.

·       In finding in favour of the occupier and cleaner. the Supreme Court said:-

“There was no evidence which mandated a finding that slipping on cherries was more likely to occur at this time and in this area than, say, slipping on dropped grapes, or that the consequences of slipping on cherries were likely to be more drastic than slipping on other dropped foods such as grapes or ice-cream, requiring special precautions over and above that taken by the Respondent in respect to the general risk of slipping on something on the floor.

In my opinion it was open to the learned Magistrate to find that a system which permitted the cleaner to leave the floor at times when he thought it safe to do so, because there were not many customers around, for up to 15 minutes, to enable him to clean the toilets, was an adequate response to the risk”.

A fall, a rape – and $240,000 –

http://www.smh.com.au/news/national/a-fall-a-rape–and-240000/2007/04/25/1177459788212.html

Geesche Jacobsen April 26, 2007
A WOMAN has won nearly $240,000 compensation from RailCorp after a judge ruled she was raped because she had broken her ankle weeks earlier at a Sydney railway station.

RailCorp was found responsible for the woman’s rape at a private home, because she could not escape with her leg in plaster, and for her subsequent depression.

The 36-year-old Taiwanese television reporter, Yu-Mei Chu, had been in Sydney to learn English when she lost her footing on slippery stairs at Sydenham rail station in December 2002.

A few weeks later, while still on crutches with her leg ankle in plaster, she was sexually assaulted and beaten at a man’s home.

She told the court she could not get away because of her broken ankle.

She became increasingly depressed after the assault, lost her will to socialise and her hair suddenly turned grey.

She was also concerned about her inability to marry and have children, the court heard.

A District Court judge, John Goldring, found she would not have been sexually assaulted if her ankle had not been in plaster.

“The psychological injury to [Ms Chu], which she would not have suffered but for the ankle injury, but which she did suffer because of the sexual assault, is within the scope of [RailCorp’s] responsibility,” he said.

It was a “forseeable consequence” of RailCorp’s breach of duty of care to provide safe steps at the station, he said.

An engineer’s report tendered in court found the stairs leading to the station’s platform 6 were “hazardous” when wet.

A yellow stripe on the front of the steps to increase their visibility had been coated painted with paint which did not provide the required friction, the report said.

The friction was “well below the minimum specified in the Australian standard”, the report says, and an accident would have been averted had another paint with anti-slip grains been used.

Judge Goldring said RailCorp did not contest the finding, but argued Ms Chu had failed to take due care for her own safety when she did not hold on to the railing.

Ms Chu, also known as Sherry Chu, was in Sydney on a temporary visa which did not entitle her to work or claim Medicare benefits.

The judge said in April it appeared she no longer had a valid visa and was in the country illegally.

When she was treated for her broken ankle she used the Medicare card of her landlady.

But Judge Goldring found she did so “because she was in severe pain, and probably shock, and clearly required immediate medical attention”.

“I do not attribute any improper motive to either of these women.
I put this down to cultural differences,” he said.

She was awarded $239,405 for the injury, medical expenses, and lost wages.

This includes damages of $150 a week for the rest of her life because her injury prevents her working in the same position she did before coming to Australia.

A spokesman for RailCorp spokesman said the company would appeal the judgement. “We feel there are some inconsistencies in the judgement,” he said.

Morgan v Sherton Pty Ltd (1999) 116 NSWLR 141

In Morgan v Sherton Pty Ltd, the NSW Court of Appeal considered whether the owner of a shopping centre should be held liable for an injury suffered by a shopper. The shopper had attempted a running leap over a garden bed that divided sections of a car park. In the process, he caught his foot on a dead branch of a scrub in the garden bed. He argued that the risk of injury from the branch was not far fetched and it was reasonable to expect the shopping centre to have pruned the branch to prevent him from catching his foot on it. The NSW Court of Appeal disagreed and found against the plaintiff for his own recklessness.

In another case, Lambert v Warwick Credit Union, (unrep Qld CA 10/12/99) the plaintiff sought to blame the defendant for a fall outside the Credit Union. The defendant had arranged for a non-slip coating to be applied to the floor surface six weeks prior to the plaintiff’s fall. There was no evidence that the area where the plaintiff fell was slippery, or that the contractor who carried out the non-slip treatment did so negligently. The plaintiff failed at trial and on appeal.

The Court held that there had to be proof of negligence and it was not enough to hold a defendant liable simply because a plaintiff fell on a surface wearing rubber soled shoes.

Conclusion

Cases such as these confirm the need for a plaintiff to prove that it was reasonable to expect a defendant to take some action to prevent the risk that a plaintiff may be injured. In this regard, the appeal courts are following the High Court’s finding in Romeo’s case [1998] 192 CLR 431, that occupiers are entitled to assume that the public will take reasonable care for their own safety. Where the risk is obvious to the plaintiff, and he or she has experience of the terrain, a claim in negligence is unlikely to succeed.

Daly -v- Spot-On-Investment Pty Ltd trading as Spot–On-Photos, unreported, NSWCA no. 40273 of 1993, 30 August 1995.

This case concerned a claim by a 79 year old woman who had fallen over a rack displaying picture frames in the defendant’s shop. The rack stood on the floor against the service counter.

The plaintiff alleged that the defendant was negligent for unsafely cluttering the shop floor by having the rack where it was, that the rack was an unusual danger because it was below eye level and that a person sufficiently distracted by the act of proceeding from the display cabinet to the counter could not be expected to notice the rack of frames between the cabinet and the counter.

The Court of Appeal referred to the Phillis -v- Daly decision and reaffirmed the statement by Mahoney JA that “a person coming upon another’s premises is expected to act reasonably“.

The Court of Appeal unanimously found that display stands are common place in shops and that the display rack was obvious. Therefore, the defendant could reasonably expect that people coming into the shop would act reasonably in moving around the shop and avoiding the display rack. Sheller JA again referred to the Phillis -v- Daly case and stated:-

Like the example given by Mahoney JA in Phillis –v- Daly at 74, a shopkeeper might place a chair at the counter for the convenience of persons like the plaintiff. It is reasonably foreseeable that a customer, whose attention is distracted by looking to the shop assistant or at an article displayed on the shelves, may fall over the chair and suffer the sort of injuries that the plaintiff suffered. It does not follow there must have been a breach of duty by the occupier of the shop, notwithstanding that shopkeepers may trade in shops without chairs or display racks and these may be easily removed“.

Therefore, although the Court of Appeal found that the risk of injury of a person tripping over the display rack was foreseeable and not far fetched or fanciful, where the display rack was an obvious feature of shops, the magnitude of risk and the degree of probability lead to the conclusion that there was no breach of duty of care by the defendant.

Bowtell -v- Hovan & anor, (unreported), NSWCA 53, 10 March 1999

This case involved a claim by the plaintiff for damages for personal injuries which he sustained when he slipped and fell while standing on a raised brick hearth surrounding an open fireplace in a hotel. The plaintiff claimed damages against the defendants alleging negligence on the basis that the floor was uneven and unsafe and for the failure to warn of such.

Expert evidence was relied on by both sides, although much of the plaintiff’s expert evidence was found to be irrelevant as the “hazards” he referred to did not concern the area where the plaintiff fell.

At first instance, the trial judge found in favour of the defendants holding that:-

The problem that I have with the plaintiff’s case is that while I think it is foreseeable that somebody could stand on the hearth, I have difficulty seeing that a reasonable person would have foreseen that there was a real risk of serious injury likely to occur by virtue of a slip from the hearth. There could not be said to be an unusual danger or trap … “.

The trial judge cited Daly -v- Spot-On-Investments Pty Ltd and Phillis -v- Daly, with respect to the magnitude of risk and the degree of probability of its occurrence. On the facts he found that the plaintiff was a regular patron of the hotel he was acquainted with that particular part of the hotel where the accident occurred and he was aware that there was a raised hearth and a wooden surround.

In conclusion the trial judge stated:-

In a negligence situation, there are two sides of the equation, the duty of care one owes to another and the duty the other has to act reasonably for their own safety. In my view the magnitude of the risk and the degree of probability when combined with the other relevant facts such as the plaintiff’s failure to look out for his own safety was such as to lead to the conclusion that there was no breach of the defendant’s duty of care to the plaintiff“.

Wednesday 29 March 2000 – MERCOURIS v WESTFIELD CENTRE MANAGEMENT COMPANY PTY LTD

1    GILES JA: This is an appeal from a judgment for the defendant in a slipping case. It seems to have been common ground that the plaintiff’s injuries and economic loss would have brought damages of more than $100,000 and leave to appeal has not been mentioned. The primary issue is whether the defendant had in place an adequate system of cleaning and inspection. A secondary issue appears in the written submissions, namely, whether there should have been a different flooring material.

2    The defendant conducted Westfield Shopping Town at Parramatta, a major centre with shops of different kinds on a number of levels.

3    The plaintiff went to the Centre on the afternoon of Sunday, 4 August 1996. She entered from a car park at an upper level and went down to level 3. On that level were Grace Bros, David Jones and K-Mart stores and about 50 shops around a central common area. The dimensions of the common area were not established with precision, although it was described as large but not as long as a football field. The flooring of the common area was matt or semi-glazed ceramic floor tiles.

4    As the plaintiff walked in the common area outside a handbag shop known as Bradmans, she slipped and fell. She did not see anything on the floor before she fell, but it was found that she slipped in a chocolaty melted icecream or thickshake substance on the floor. The floor tiles provided a firm footing when dry, but were slippery and dangerous if there was spillage from a milk based contaminant such as icecream, thickshake or milkshake.

5    The plaintiff fell at about 3.45pm. The floor had been clean and dry when the cleaner shortly to be mentioned passed Bradmans less than 10 to 15 minutes prior to her fall. From footprints in the spillage at least some other persons in the centre had walked through it before the plaintiff fell.

6    The defendant had a cleaning contract calling for cleaning, which included attention to spillages, on a rotational basis. The route of one of the cleaners on duty on level 3 at the time took in the common area outside Bradmans, the area at that point being also a meeting place with the route of another cleaner. The “looping” of the cleaner’s area, as it was described, took the cleaner about 10 to 15 minutes depending on the congestion of the centre and other matters. Apart from other cleaning gear, he carried with him a mop and bucket to clean the floor. The cleaner also had a two-way radio, and if the security staff at the centre found a spillage he would be called and would go immediately to clean it up.

7    A shop assistant in Bradmans became aware of the spillage in which the plaintiff fell a few minutes before the fall, the time being left imprecise. She did not report it to the entre management because she thought it would be cleaned in the normal course by the cleaners who passed regularly. The cleaner on duty had almost completed his loop and would have been back at Bradmans, as the trial judge found, within two to five minutes. After the plaintiff’s fall he received a call to clean up the spillage on which the plaintiff had slipped.

8    It is apparent that an interesting question of causation would arise if it were found that the defendant did not have in place an adequate system of cleaning and inspection. However, the trial judge found that it did.

9    There was evidence that there had been several occasions on which the cleaner had had to clean up icecream, thickshake or milkshake spillages on level 3, although it was not clear whether the spillages were in the same area as that looped by the cleaner on the day the plaintiff fell. There was a McDonald’s outlet on level 3, at the other end of the level from Bradmans and not on the route of the cleaner in question, but there was no clear evidence of other takeaway food outlets on level 3 from which might come spillages on that level. No doubt foodstuffs, including icecreams, thickshakes and milkshakes, would be brought to level 3 from other levels in the centre and to the part of the common area outside Bradmans, for example from the McDonald’s outlet, but it was not a situation where constant contamination of the floor would be expected.

10    The trial judge concluded that the system in place was adequate to discharge the defendant’s obligation to take reasonable care for the safety of visitors to the centre. He rejected the submission that it was incumbent on the defendant to have in place video surveillance of the common areas of the centre, and that submission was not repeated on appeal.

11    The first submission on appeal was that the trial judge should have found that the system of cleaning and inspection in place was inadequate. Whether it was adequate or inadequate was a question of fact, decided according to whether it was a reasonable response to the risk of injury to those visiting a centre.

12    In my opinion it was. The system provided for regular cleaning every 10 to 15 minutes and immediate cleaning on call if a spillage was reported. Its operation is indicated by the shop assistant’s belief that the spillage in which the plaintiff fell would soon be attended to in the course of the regular cleaning. The system was in operation at the time. While a spillage in the relevant area such as the spillage in which the plaintiff slipped could be foreseen, and spillages had occurred on level 3 on previous occasions, the area covered by the cleaner’s route was not shown to encompass takeaway food outlets. The short time between the passages of the cleaner and the facility for calling him to a spillage was a reasonable response to the risk for the area outside Bradmans. I do not think that the first submission should be accepted.

13    The second submission, principally in the written submissions although indirectly taken up orally, was that the trial judge should have found that the defendant was negligent in not providing a floor surface that was safe when contaminated by spillages. The plaintiff relied on evidence in a report of Mr Colin Simpson, an engineer. Mr Simpson was not cross-examined, and there was no evidence called by the defendant on the same subject.

14    According to Mr Simpson, flooring materials were available whose friction properties were not reduced by contamination by liquids, being flooring materials with a grit or sand like substance within the surface so that even if contaminated they provided a secure footing. Mr Simpson expressed the view that such a surface was “the only reasonable surface for common areas such as food halls or the like.” There was no evidence of cost, aesthetic considerations or other practicality in having flooring materials of this kind. The relevant area on level 3 was not in the nature of a food hall, and I do not think that the plaintiff is really assisted by this opinion.

15    Apart from what he said about a food hall or the like, Mr Simpson expressed the view that either the flooring material should be made to tolerate an expected contaminant or a constant cleaning system should be utilised so that spillages were cleaned up virtually immediately. The trial judge was not obliged to act on the evidence of Mr Simpson, especially when it trespassed into what was reasonable. But it does not matter, because in what he said in this respect Mr Simpson gave alternatives. If the defendant had in place an adequate system of cleaning and inspection, I do not think it had to provided a floor surface resistant to the effect of spillages.

16    The argument in support of the submissions was put fully, and all that could be said in support of the appeal was said. Unfortunately for the plaintiff, in my opinion the appeal should be dismissed with costs.
17    SHELLER JA: I agree.
18    FOSTER AJA I also agree.
19    SHELLER JA: The order of the Court is that the appeal be dismissed with costs

  Sarantidis v Westfield Shopping Centre Tea Tree Plaza (District Court of South Australia, 29 April 1997) ·       The shopping centre consisted of 2 levels.  Level one consisted of specially shops, a supermarket, a department store and a food court.  Customers had the option of consuming their food and drinks at the tables and chairs in the food court or taking the food and drink away from this area.  The principal or most convenient entry from Level 2 to the food court on Level 1, or exit from the food court on Level 1 up to the shops on Level 2, was by way of an escalator situated in the food court area. ·       After spending some time on Level 1 the Plaintiff took the escalator up to Level 2. At the top of the escalator on Level 2, the Plaintiff stepped off the stairs onto the metal plate and in doing so slipped on what he described as a thickshake or melted ice-cream. ·       The Defendant called evidence of a cleaning system which it said operated in the walkways and other common areas of the shopping centre at the time of the accident.  It contracted out the cleaning to Tempo Cleaning Services. ·      Defendant said that from the time the shopping centre opened until it closed there were 3 cleaners on duty in the food court.  The number of cleaners in the food court increased to 6 during the lunch period. ·       The Defendant said that there was a 15 – 20 minutes to complete a circuit of the walkways on that level. The area immediately in front of the exit point at the top of the escalator was part of that walkway.     The Defendant said that the time it took to complete a circuit on Level 2 was an estimate.  There had been no actual timing of a cleaner performing these duties. ·       The cleaning supervisor gave evidence that the cleaner on Level 2 would take roughly 15 – 20 minutes to complete a circuit of the walkway ie 15 minutes if there were no spillages and 20 minutes if there were spillages.  He did not say how he estimated the time for completion of a circuit. ·       Defendant submitted that it had discharged its duty of care as a result of the cleaning system it said was in operation at the shopping centre on the day of the accident. ·       The Court saw that it was required to answer the following questions ie did the Defendant have a cleaning system operating on the day the Plaintiff sustained his injury and if so did that cleaning system discharge the Defendant’s duty of care? ·       Court said that the food and drink sold in the food court made it likely that from time to time slippery substances would appear, not only on the floor of the food court but also on the escalator, the walkways and other common areas of the shopping centre.  The Court said:- “Experience in the use of escalators would indicate that a clumsy exit is possible at the point where the moving escalator steps cease and the user steps on to the stationary exit plate “ ·       The cleaner on Level 2 at the relevant time was not called nor was there any direct evidence given about the system in place save for the supervisor’s recollection of what was required at the time. The Court found the evidence to be of little assistance to it.  In particular. the Court said:- “I do not accept the submission by Counsel for the Defendant that, in the circumstances of this case, the giving of evidence of a general nature regarding the cleaning regime is sufficient to establish that there was a cleaning system in operation on the day of the accident and the nature of that system…I am not satisfied that there was on the day of the accident a cleaner performing her duties in the manner described by the general evidence given by witnesses for the Defendant”. ·       The Court concluded:- “It follows from what 1 have said that I find that there is no evidence of any cleaning system operating in the walkways on Level 2 and in the area where the accident occurred on that day.  In my view, the circumstances here require that the Defendant have an operating cleaning system which included the area of the escalator exit plate.  In the absence of any evidence of a cleaning system operating on the day of the accident I find that the Defendant was in breach of its duty of care to the Plaintiff in that it did not have an inspection and cleaning system operating at all. Even if I was satisfied that the evidence disclosed that there was a cleaning system operating on the day of the accident in the manner described by the general evidence provided by the Defendant I should indicate that 1 would not have been satisfied that such a system was adequate to discharge the Defendants duty to take reasonable steps for the safety of its customers.  As I said earlier, in my opinion, the area at the top of the escalator was a likely danger point for the spillage of slippery substances being carried from the food court to Level 2. It seems to me that when considering an adequate cleaning system that this point needed to be treated as if it was part of the food court”. Scott v Patterdale Pty Ltd (Queensland District Court, 27 November 2000) ·       The Defendant was the occupier of the Pialba Place Shopping Centre at Hervey Bay.  The Plaintiff slipped not far inside the automatic doors giving entry from the outside car park to the concourse of the shopping centre at about 8.20am on a Monday.  The floor was polished terrazzo of creamy colour which it was agreed would be slippery when wet.  Water was also not easily detectable on this type of floor. ·       No one at the time was able to identify any substance or particularly slippery area on the floor which might have explained the accident.  Ultimately the Court accepted that the Plaintiff had slipped on water which had been walked into the centre.  It was raining outside at the time. ·       The Court said:- “In wet weather water would get on to the floor inside the automatic doors through which the Plaintiff entered and give rise to a risk of customers slipping, which had to be guarded against.  The precautions available included constant mopping of the floor (to the extent that the Defendant on some days might engage a person over and above the ordinary cleaning staff to attend to it), placement of at least one of the now familiar yellow cones which warn of a slipping hazard, and replacement or supplementation of the usual 1. 2m x 1.7m mat placed to straddle both sides of the automatic door with long runners hired from a local dry-cleaner. The likelihood of water being “tracked” onto the terrazzo floor in all kinds of ways including by shopping trolleys and by dripping ,from customers clothing and umbrellas was well known to the Defendant and furthermore I would think is notorious generally”. ·       The Court found against the Defendant shopping centre owner. ·       The Defendant issued third party proceedings against the cleaners asserting a failure by the cleaners to comply with their contractual obligations as cleaners of the Centre to keep the Centre in such condition as to be safe for the use of members of the public. ·       With regard to the third party claim the Court said:- “It seems to me to have been established that during the relevant day shift, only one cleaner was to be provided.  What he or she could achieve was necessarily limited, given the large size of the Pialba Centre.  While there might have been an expectation that cleaning staff would get to the Hunter Street entrance roughly every 15 minutes, the exigencies of the job, such as spills or messes elsewhere, might preclude this.  I do not think the third party was in any sense guaranteeing or committed to achieving a Pialba Centre which was safe for the public. 1 think the deficiency which leads to the Defendants  liability was in its system and that it, and not the third party, bears responsibility for the deficiencies”. George v  AMP Shopping Centre (South Australian District Court, 15 May 1997) ·       The Plaintiff alleged that she slipped and fell outside of the Centre near the “southern entrance”.  The Plaintiff said that she exited the shopping centre through one of the sets of sliding doors and was walking on the pavement which consisted of brick paving when her legs went from underneath her as a result of which she fell to the ground. The Plaintiff said that she noticed some reddish brown coloured dirt on the pavers which she says was the reason that she slipped and fell. ·       It was the Defendant’s case that there was no dirt present, of whatever colour, at or near the point where the Plaintiff slipped and fell.  The Defendant pleaded in the alternative that, even if dirt had been present and the Plaintiff had slipped on such dirt, the Defendant had not been negligent as alleged by the Plaintiff or at all.  In particular, the Defendant asserted that it had in place a system whereby all walkway areas open to the public were checked at least every 20 minutes for the presence of dirt or other material upon which a member of the public might slip and that if such substance were detected, it was removed. ·       Ultimately the Court rejected the Plaintiffs evidence that there was dirt on the brick paving upon which she slipped.  This was due to the weight of evidence provided by other witnesses who said that they saw nothing on the ground. ·       The Defendant occupier had joined the cleaner as a third party.  The Court said that.- “All that the evidence discloses is that the Plaintiff slipped and fell on the brick paving outside the southern entrance of the shopping centre for some unexplained reason.  It is the absence of that explanation which must exonerate the Defendant. if the Defendant is exonerated so is the third party Even if it is assumed that there was dirt present on the paved area where the Plaintiff slipped and fel1, that does not mean that the Defendant was necessarily negligent”. ·       The Court went on to say:- “The Defendantrequired its cleaning contractors to ensure that all public areas if the shopping centre were inspected at least once every 20 minutes for the presence of substances on the floor or paving on which the members of the public might slip and to remove same if detected.  Indeed all members of’ the Defendant’s staff engaged in running the shopping centre including security personnel were made aware of the need for vigilance to ensure that the floor, and walking surfaces are kept clean1 am satisfied that the Defendant took reasonable precautions for the protection of members of the public and provided adequately for the “due and careful implementation of those precautions “. Allcorp Cleaning Services Pty Ltd v Fairweather & Anor (New South Wales Court of Appeal, 29 June 1998) ·       The Plaintiff was injured when she slipped on a potato chip in the Ashfield Shopping Mall.  It was a busy Saturday lunchtime where there were about 80 tables and 200 people using the area.  The tables were located in a central area between a number of food outlets.  The floor was of a terrazzo type. ·       The centre was owned by Queensland Investment Corporation. it settled the claim made by the Plaintiff.  The Defendant then pursued its cleaning contractor for tile money it paid to the Plaintiff. ·       There was a cleaner who was required to attend exclusively to the food court area.  The evidence was that had he done so, he would have been covering each part. of the area approximately every 15 minutes.  There was however no evidence regarding the presence of the cleaner on site at the time and the contrary witnesses said that they had not seen a cleaner for some time prior to the fall.  The cleaner was unable to be contacted or at least did not give evidence.  The trial judge said there was a clear inference on the evidence that there was no cleaner in the area for a substantial period of time. The Court of Appeal accepted that the evidence supported this inference being made. ·       The trial judge concluded that the third party (cleaner) was as between the Defendant and third party the negligent one and that the accident was totally the fault of the third party. ·       Whether or not the Court accepted the 15 minute coverage (which it was argued would have been the coverage if the cleaner had been there) is unclear.  Justice Stein says:- ” The inference drawn by His Honour, the Trial Judge, that there was no cleaner in the food hall for up to three quarters of an hour was one which was open to him. If the system had been followed, the probabilities would have been that the chip would have been detected and removed”. Justice Priestley said.- “On the facts as found by the Trial Judge, if that cleaning system had been functioning as it should have been, it is my opinion more probable than not that the chip which caused the fall, would have been seen and moved before the accident “. Kelly v Lend Lease Retail Pty Ltd (ACT Supreme Court, 16 April 1993) ·       The Plaintiff, a 60 year old lady slipped on a woodchip in the common area of the Woden Shopping Square. Tile Plaintiff was walking in the general area of the shopping centre outside the Florscheim shop when she says that she stepped on the woodchip as a result of which she fell and injured herself.  The Plaintiff says that she also noticed other rubbish in the area including potato chips, drink clips and cigarette butts. ·       The Defendant said that it had engaged 3 cleaners and a maintenance crew who had instructions to clean up anything they noticed on the floor. ·       With regard to the evidence given by the cleaner the Court said: “Mr Drago Brozininic, Manager of Berkeley Challenge,, the cleaning contractor, gave evidence for the Defendant. In some respects, his evidence was not entirely satisfactory. This, no doubt, was, for the most part, because he had not been asked to provide timely details of cleaning arrangements (as at May 1985 until 1 February 1993.  He had no records from that time to draw onThe evidence as to the presence or absence of cleaning staff, the general likelihood that cleaners were engaged in reasonable numbers and were carrying out their duties with reasonable diligence, is quite unsatisfactory”. ·             The Court went on to say:- “In any event, it seems to me that, given it was the summer holidays, the number of small but active children was likely to have been greater.  They were likely, more than usually, to dislodge the woodchips or bark pieces, They were also more likely and more frequently than usual to spill and drop things onto the .floor.. Increased vigilance was called forThe absence of evidence of the cleaning done on that day is significant.  The only evidence of the cleaning arrangements was that of Mr Brozininic and Mr Francis.  Evidence was of general practice.  No records were produced as to who was actually doing the cleaning on that day.  It is not even clear whether the assigned cleaner was on duty at the time of the fall”. ·       The Court found in favour of the Plaintiff. Wilson v Yeperenye Pty Ltd (Northern Territory Supreme Court, 24 May 1996) ·       The Plaintiff was walking with her husband through the shopping centre when she fell and injured herself in a common area as a result of slipping on a cherry. ·       Woolworths had a sale on cherries at the time. ·       The system employed by the occupier required the cleaner to conduct circuits of the public areas of the Centre to sweep and spot mop.  Each circuit took approximately 5 minutes to complete.  The system also required the cleaner to leave the floor of the premises to clean the toilets at the time when the cleaner felt that it was safe and expedient to do so.  This would take a maximum of 15 minutes. ·       Approximately 15 minutes before the accident the cleaner had conducted his rounds through the area where the Appellant fell.  The cherry was not there at that time.  He then left the floor to clean the toilets and was away for a maximum of 15 minutes.  The premises were not crowded or in heavy use at the time.  The specially shops in the Centre had all closed at 5.30pm. ·       The trial judge found that the Respondent had provided an adequate system of cleaning and that the fall was not caused by the Respondent’s negligence. ·       One of the grounds of the appeal was that the occupier knew of the cherry sale which constituted a special known risk for which the Respondent failed to provide an adequate response. ·       The other grounds of appeal went to the system of cleaning including the absence of the cleaner whilst cleaning the toilets. ·       In finding in favour of the occupier and cleaner. the Supreme Court said:- “There was no evidence which mandated a finding that slipping on cherries was more likely to occur at this time and in this area than, say, slipping on dropped grapes, or that the consequences of slipping on cherries were likely to be more drastic than slipping on other dropped foods such as grapes or ice-cream, requiring special precautions over and above that taken by the Respondent in respect to the general risk of slipping on something on the floor. In my opinion it was open to the learned Magistrate to find that a system which permitted the cleaner to leave the floor at times when he thought it safe to do so, because there were not many customers around, for up to 15 minutes, to enable him to clean the toilets, was an adequate response to the risk”. Morgan v Sherton Pty Ltd (1999) 116 NSWLR 141 In Morgan v Sherton Pty Ltd, the NSW Court of Appeal considered whether the owner of a shopping centre should be held liable for an injury suffered by a shopper. The shopper had attempted a running leap over a garden bed that divided sections of a car park. In the process, he caught his foot on a dead branch of a scrub in the garden bed. He argued that the risk of injury from the branch was not far fetched and it was reasonable to expect the shopping centre to have pruned the branch to prevent him from catching his foot on it. The NSW Court of Appeal disagreed and found against the plaintiff for his own recklessness. In another case, Lambert v Warwick Credit Union, (unrep Qld CA 10/12/99) the plaintiff sought to blame the defendant for a fall outside the Credit Union. The defendant had arranged for a non-slip coating to be applied to the floor surface six weeks prior to the plaintiff’s fall. There was no evidence that the area where the plaintiff fell was slippery, or that the contractor who carried out the non-slip treatment did so negligently. The plaintiff failed at trial and on appeal. The Court held that there had to be proof of negligence and it was not enough to hold a defendant liable simply because a plaintiff fell on a surface wearing rubber soled shoes. Conclusion Cases such as these confirm the need for a plaintiff to prove that it was reasonable to expect a defendant to take some action to prevent the risk that a plaintiff may be injured. In this regard, the appeal courts are following the High Court’s finding in Romeo’s case [1998] 192 CLR 431, that occupiers are entitled to assume that the public will take reasonable care for their own safety. Where the risk is obvious to the plaintiff, and he or she has experience of the terrain, a claim in negligence is unlikely to succeed.   Daly -v- Spot-On-Investment Pty Ltd trading as Spot–On-Photos, unreported, NSWCA no. 40273 of 1993, 30 August 1995. This case concerned a claim by a 79 year old woman who had fallen over a rack displaying picture frames in the defendant’s shop. The rack stood on the floor against the service counter. The plaintiff alleged that the defendant was negligent for unsafely cluttering the shop floor by having the rack where it was, that the rack was an unusual danger because it was below eye level and that a person sufficiently distracted by the act of proceeding from the display cabinet to the counter could not be expected to notice the rack of frames between the cabinet and the counter. The Court of Appeal referred to the Phillis -v- Daly decision and reaffirmed the statement by Mahoney JA that “a person coming upon another’s premises is expected to act reasonably“. The Court of Appeal unanimously found that display stands are common place in shops and that the display rack was obvious. Therefore, the defendant could reasonably expect that people coming into the shop would act reasonably in moving around the shop and avoiding the display rack. Sheller JA again referred to the Phillis -v- Daly case and stated:- “Like the example given by Mahoney JA in Phillis –v- Daly at 74, a shopkeeper might place a chair at the counter for the convenience of persons like the plaintiff. It is reasonably foreseeable that a customer, whose attention is distracted by looking to the shop assistant or at an article displayed on the shelves, may fall over the chair and suffer the sort of injuries that the plaintiff suffered. It does not follow there must have been a breach of duty by the occupier of the shop, notwithstanding that shopkeepers may trade in shops without chairs or display racks and these may be easily removed“. Therefore, although the Court of Appeal found that the risk of injury of a person tripping over the display rack was foreseeable and not far fetched or fanciful, where the display rack was an obvious feature of shops, the magnitude of risk and the degree of probability lead to the conclusion that there was no breach of duty of care by the defendant.   Bowtell -v- Hovan & anor, (unreported), NSWCA 53, 10 March 1999 This case involved a claim by the plaintiff for damages for personal injuries which he sustained when he slipped and fell while standing on a raised brick hearth surrounding an open fireplace in a hotel. The plaintiff claimed damages against the defendants alleging negligence on the basis that the floor was uneven and unsafe and for the failure to warn of such. Expert evidence was relied on by both sides, although much of the plaintiff’s expert evidence was found to be irrelevant as the “hazards” he referred to did not concern the area where the plaintiff fell. At first instance, the trial judge found in favour of the defendants holding that:- “The problem that I have with the plaintiff’s case is that while I think it is foreseeable that somebody could stand on the hearth, I have difficulty seeing that a reasonable person would have foreseen that there was a real risk of serious injury likely to occur by virtue of a slip from the hearth. There could not be said to be an unusual danger or trap … “. The trial judge cited Daly -v- Spot-On-Investments Pty Ltd and Phillis -v- Daly, with respect to the magnitude of risk and the degree of probability of its occurrence. On the facts he found that the plaintiff was a regular patron of the hotel he was acquainted with that particular part of the hotel where the accident occurred and he was aware that there was a raised hearth and a wooden surround. In conclusion the trial judge stated:- “In a negligence situation, there are two sides of the equation, the duty of care one owes to another and the duty the other has to act reasonably for their own safety. In my view the magnitude of the risk and the degree of probability when combined with the other relevant facts such as the plaintiff’s failure to look out for his own safety was such as to lead to the conclusion that there was no breach of the defendant’s duty of care to the plaintiff”.

Ohlstein bht Ohlstein & 3 Ors v E & T Lloyd trading as Otford Farm Trail Rides [2006] NSWCA 226 (15 December 2006)

Last Updated: 19 December 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ohlstein bht Ohlstein & 3 Ors v E & T Lloyd trading as  Otford Farm Trail Rides [2006] NSWCA 226

FILE NUMBER(S):
40594/05

HEARING DATE(S): 07/08/06

DECISION DATE: 15/12/2006

PARTIES:
Tali Ohlstein by her tutor Adam Ohlstein (First Appellant)
Jared Ohlstein by his tutor Adam Ohlstein (Second Appellant)
Vanessa Duncan (Third Appellant)
Adam Ohlstein (Fourth Appellant)
Elizabeth Lloyd and Timothy Lloyd trading as Otford Farm Trail Rides (Respondents)

JUDGMENT OF: Beazley JA Ipp JA Bryson JA

LOWER COURT JURISDICTION: Supreme Court – Common Law Division

LOWER COURT FILE NUMBER(S): SC 20297/01

LOWER COURT JUDICIAL OFFICER: Grove J

COUNSEL:
P W Neil SC/S M Kettle (Appellants)
S G Campbell SC/A R Davis (Respondents)

SOLICITORS:
Maurice Blackburn Cashman (Appellants)
Curwood & Partners (Respondents)

CATCHWORDS:
NEGLIGENCE – appellant injured while participating in a horse trail ride – appellant was five years and eight months old at the time of the accident – duty of care – whether it was negligent to permit a beginner of five years and eight months to go on a trail ride – whether it was negligent to not individually lead the appellant’s horse during the trail ride – whether expert evidence was relevant in assessing risk – knowledge and perception of risk – whether judicial notice can be taken of risks inherent in horse riding – whether risk was foreseeable – whether respondents’ system of operation was a reasonable response to foreseeable risk – relevance of industry practice. D

LEGISLATION CITED:
Civil Liability Act 2002 (NSW), s 5B

DECISION:
(1) The appeal is allowed with costs. (2) The verdict judgment and costs order of Grove J should be set aside. (3) The proceedings are to be remitted to the Common Law Division to be further heard and determined having regard to this decision. (4) The Common Law Division is to determine the remaining issues. (5) The Common Law Division is to decide questions of costs in that Division, including costs of the first trial.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40594/05

SC 20297/01

BEAZLEY JA

IPP JA

BRYSON JA

Friday 15 December 2006

TALI OHLSTEIN bht ADAM OHLSTEIN & 3 ORS v ELIZABETH LLOYD & ANOR t/as OTFORD FARM TRAIL RIDES

FACTS

The respondents, Mrs Elizabeth Lloyd and her son, Mr Timothy Lloyd, owned and operated a horse riding business known as Otford Farm Trail Rides at their farm in Otford, New South Wales. The family had owned the farm since 1961 and had commenced conducting trail rides on the farm in the mid-1970s. Until the time of the first appellant’s accident, there was no evidence of anyone being injured from undertaking activities at Otford Farm

On 5 April 1998, Tali Ohlstein (the first appellant), then five years and eight months old, together with her brother Jared Ohlstein (the second appellant), then eight years old, and their mother Ms Vanessa Duncan (the third appellant) participated in a group trail ride at Otford Farm . Two experienced trail leaders supervised the trail ride. Tali was a beginner, as was her brother.

Prior to commencing the trail ride, the trail leaders gave Tali and Jared a preliminary riding lesson and made an assessment of their riding ability. Based on this assessment the trail leaders decided that a lead rope was not necessary for Tali or Jared’s horse.

Tali was put on a 20 year old horse named Patch, a horse known to be docile, relaxed and slow. After about 45 minutes of trail riding, the horse following behind Patch bit him on the rump. This caused Patch to gallop away in an uncontrolled fashion. Tali lost her balance, fell off the horse and caught her foot in the stirrup. She was dragged along the ground for a considerable distance and as a consequence suffered severe injuries.

Tali, by her tutor Mr Adam Ohlstein (her father), commenced proceedings against the respondents claiming that they had been negligent in the provision of horse riding facilities to Tali. In the same action, Jared (also by Mr Adam Ohlstein), Ms Duncan and Mr Adam Ohlstein, personally, sued claiming damages for nervous shock. The respondents denied any negligence in allowing a child of Tali’s age to go on a trail ride and contended that they had an appropriate system in place to deal with inherent risks.

The trial judge, Grove J, in a separate trial on liability found that the respondents had not been negligent and dismissed the appellants’ claims.

The issues before the Court on appeal were directed to whether there were inadequate reasons given by Grove J in relation to two particulars of negligence, these being:

(i) “Particular (o)” permitting Tali to go on a trail ride; and

(ii) “Particular (t)” failing to lead Tail individually during the course of the ride.

And, whether Grove J erred in rejecting the appellants’ argument based on Particular (t) in holding that it was not negligent for the respondents to allow Tali to go on the trail ride without being led. A separate issue on appeal concerned the admissibility and relevance of expert evidence.

Held per Bryson JA (Beazley JA agreeing):

i. While it was appropriate to call expert evidence to show what practices were observed in the reasonable conduct of a trail riding establishment, the ordinary knowledge and understanding of members of the community generally, including members of the Court, of the risk and uncertainties involved in riding and controlling even the most placid horses, and of the severe limits on the capacity of young children to control unexpected situations, equip the Court with all the understanding necessary to deal with Particular (t). This is one of the many cases in which no more than common knowledge is necessary for perception of the existence of the real risk of injury and of the appropriate precautions.

Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362

ii. Ordinary common understanding of life and affairs is enough to show that a horse may make sudden and unexpected movements while being ridden. It is common knowledge that even a highly skilled rider may encounter injury or death through unexpected behaviour of the horse.

iii. It is also common knowledge and experience that children of Tali’s age are not physically adept, have a poor sense of danger and only a slight grasp of the concept of risk; that they do not have insights into the possible behaviour of horses and do not respond quickly or skilfully to unexpected turns of events.

iv. It is also common knowledge and experience that riders who are beginners are led until they acquire the skill to control the horse, not merely when the horse is quietly doing the expected, but also to control it when the horse’s behaviour departs from the expected.

v. The display of a sign disclaiming responsibility could have no effect on the respondents’ duty of care to Tali, who cannot have had any understanding of the sign.

vi. Knowledge of risk has a different place in a negligence case relating to an adult rider than it has in a case relating to a young child. Common knowledge and experience make it obviously open to consideration that there was negligence in conducting a trail ride in which a child of five years and eight months, who had no previous experience of horseriding, rode an aged and placid horse without a lead rope. Perception of risk may well have been blunted for persons who were very familiar with the operation and the horse, who themselves were very adept at riding and had learned in their childhood, and who had seen the operation performed without mishap many times before.

vii. The test of foreseeability is undemanding. The risk that the horse would make some movement, which would unseat the child, was quite clear, even though it was unlikely that that would happen.

viii. It was an aspect of the respondents’ system of operation that a leader was equipped with and carried a lead rope with which a beginner rider could be led if some event happened during the ride that showed the leader that that was appropriate. In this system of operations, no means were available to control a beginner’s horse, other than whatever the beginner herself might be able to do, and whatever may be achieved by attempting an intervention when some untoward turn of events presented itself. The safety of the beginner was left to the horse. The shortcoming of this system of operation is manifest.

ix. The alternative means of response available were simple and obvious; the trail leader could have led the beginner rider, or several of them, while riding herself. This would not have eliminated the danger, but would have very greatly reduced the danger, and as a matter of probability (and not of certainty) would have meant that the sudden movement of the horse would have been brought under control much earlier than it was, and the child’s fall and injury would have been averted.

x. The trail leaders conformed to their employers’ system of operations. The leaders cannot be regarded as having been in breach of a duty of care.

xi. The careful instruction given to Tali and the other beginners by the trail leaders could not have done anything to equip a beginner child of less than six years of age to cope with a horse that became unruly; the leaders could not have done anything that made it reasonable to rely on the child’s ability to do so.

xii. Practice in the relevant industry or profession is relevant to negligence, but it is not conclusive. The decision is for the Court.

Rosenberg v Percival (2001) 205 CLR 434, Rogers v Whitaker (1992) 175 CLR 479, Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296

xiii. The trial judge erred in rejecting Particular (t) on the grounds that it was an unrealistic impediment to the reasonable conduct to be expected of the operator of a trail riding establishment. Upon the evidence, the risk was extremely plain, the means available to deal with it involved no expense or difficulty and required very little attention.

xiv. In relation to Particular (o), the contention that a child of Tali’s age should not have been taken on a trail ride at all without first having had a number of lessons imposes an undue and impractical burden on the conduct of the respondents’ business of providing trail rides. The ready availability of means of controlling a horse ridden by a beginner rider by using a lead rope forms part of the reasons for reaching this conclusion.

xv. Tali’s injury was caused by negligence of the respondents in conducting their operation in the respect alleged in Particular (t).

Held per Ipp JA (dissenting):

i. The trial judge gave adequate reasons for reaching the conclusion that, while there are inherent risks in riding horses, and those risks were increased when the riders were beginners of Tali’s age, society would regard those risks as acceptable when balanced against the benefits and pleasures afforded to the community as a whole from allowing parents to take their young children on trail riding outings.

ii. Our society accepts that certain recreational activities may be provided for young children, and even encouraged, albeit that they involve risks of serious injury.

Agar v Hyde (2000) 201 CLR 553, Vairy v Wyong Shire Council (2005) 223 CLR 422

iii. The trial judge’s reasons indicate that he accepted, implicitly, that the respondents’ policy of having regard to the capacity of individuals, rather then laying down an absolute prohibitory rule, was reasonable and that they had applied it in a way that did not reveal negligence on the part of their employees. His Honour gave adequate reasons for reaching this conclusion.

iv. Having regard to the standard authorities relating to the way in which an appellate court should approach credibility findings on appeal (whether relating to expert witnesses or otherwise), it is not open for this Court to differ from the trial judge’s views as to the reliability of the appellants’ witnesses.

v. It is necessary to remember that horse riding is a specialised activity, even though it is an activity undertaken in this country by innumerable people of all ages. The court must eschew any temptation to use personal knowledge about horse riding in making the requisite judgment unless that knowledge falls within the category of matters about which judicial notice may be taken.

vi. The evidence does not show an error in the conclusions reached by Grove J. The risk that eventuated, while not far-fetched or fanciful, was remote. That risk was one that society would regard as acceptable in the light of all the precautions the respondents took and the constant supervision being exercised over Tali. The incident was a tragic accident, but not caused by negligence.

vii. It is not appropriate for the Court, by reference to common knowledge of the matters in issue in this case, to override the opinions of the experts accepted by the trial judge. Judicial notice cannot be taken of these matters.

ORDERS

(1) The appeal is allowed with costs.

(2) The verdict judgment and costs order of Grove J should be set aside.

(3) The proceedings are to be remitted to the Common Law Division to be further heard and determined having regard to this decision.

(4) The Common Law Division is to determine the remaining issues.

(5) The Common Law Division is to decide questions of costs in that Division, including costs of the first trial.

**********

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40594/05

SC 20297/01

BEAZLEY JA

IPP JA

BRYSON JA

Friday 15 December 2006

TALI OHLSTEIN bht ADAM OHLSTEIN & 3 ORS v ELIZABETH LLOYD & ANOR t/as OTFORD FARM TRAIL RIDES

Judgment

1 BEAZLEY JA: I have had the advantage of reading in draft the judgments of Ipp JA and Bryson JA. I agree with the reasons for judgment of Bryson JA and with the orders he proposes.

2 I only wish to make one further observation.

3 Ipp JA at [152] and [153] has commented upon my statement in Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 at [68]. That case was very different from this. In Coombes the trial judge had made an observation in relation to a certain type of road sign upon which he subsequently based one of his findings. His observation was not in accordance with the proven facts in the case. His Honour was not, therefore, acting on a matter of common knowledge, but on a matter of personal experience or assumption based on personal experience in circumstances where it was not available for him to do so.

4 In my opinion, this case is different. The Court, in making its assessment of whether the respondent breached its duty of care, was required to make a value judgment based on the evidence. However, in making that judgment, it was not deprived of the common sense and common knowledge that is part and parcel of the ordinary person’s experience. Those matters included the risks inherent in horse riding and the characteristics of young children. In my opinion, as the reasons of Bryson JA demonstrate, the essential breach of the respondent’s duty of care was a failure to have in place a system to deal with the foreseeable circumstances that a horse might become unruly. As Bryson JA says, the respondent should have had a system whereby inexperienced young children were lead so as to take account of some untoward event. The failure to have in place such a system constituted a breach of its duty of care.

5 IPP JA:

The issues on appeal

6 The respondents, Mrs Elizabeth Lloyd and her son, Mr Timothy Lloyd, owned and operated a horse riding business known as “Otford Farm Trail Rides” at their farm in Otford, New South Wales. On Sunday afternoon, 5 April 1998, Ms Vanessa Duncan (the third appellant) and her two children, Jared Ohlstein (the second appellant) then aged eight years, and Tali Ohlstein (the first appellant) then aged five years eight months, participated in a group trail ride at Otford Farm.

7 Tali was put on a 20 year old horse named Patch. After about 45 minutes of trail riding, Hiawatha, the horse following Patch, bit Patch in the rump. This caused Patch to gallop away in an uncontrolled fashion. Tali lost her balance, fell off the horse, and her foot caught in a stirrup. She was dragged along the ground for a considerable distance. She suffered extremely severe injures, including brain damage.

8 Tali, by her tutor (her father Mr Adam Ohlstein) commenced proceedings against the respondents, alleging that their negligence had caused her injuries and the damages she had sustained. In the same action, Jared (also by Mr Ohlstein, his tutor), Ms Duncan and Mr Ohlstein, personally, sued as plaintiffs claiming damages for nervous shock.

9 The appellants pleaded:

“The Lloyds were negligent in their provision of horse riding facilities to Tali … and/or were vicariously liable for the negligence of the two leaders on the Ride.”

10 Grove J, the trial judge found that the respondents had not been negligent. The appellants’ claims were dismissed and they now appeal against his Honour’s decision.

11 In his reasons Grove J noted:

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

12 The issues as to “liability” before Grove J did not comprise only the question whether the respondents negligently caused the plaintiffs’ injuries. The respondents had filed a cross-claim whereby they claimed an indemnity from Ms Duncan. The cross-claim was based on the allegation that Ms Duncan was a joint tortfeasor and, in the alternative, on an indemnity agreement that the respondents contended Ms Duncan had entered into with them. Ms Duncan sought relief under the Contracts Review Act 1980 (NSW) in respect of that agreement. In view of his Honour’s conclusion that there was no negligence on the part of the respondents, he did not deal with these other issues.

13 At the commencement of argument on appeal there was some discussion between the bench and senior counsel for the parties as to the issues that the Court was required to deal with. Mr P W Neil SC who, together with Mr Kettle, appeared for the appellants, explained that the appellants wished to agitate two broad issues. The presiding judge, Beazley JA, described and commented on these two issues as follows:

“One is that in two relevant respects there were inadequacies of reasons. When I say two relevant respects, this goes to two particulars of negligence, the ones you identified when you opened, namely that the child need not have been allowed to go on a trail ride at all. Alternatively, the child should not have been allowed to go on a trail ride unless led. You say there are inadequacies of reasons in relation to the evidence. That is one issue you want to argue.

The second issue is that on all of the evidence before his Honour regardless that there were inadequate reasons, you would say the evidence went all one way in relation to the child not having been led entitled you to a verdict, so we understand you want to argue those points. We think you should be allowed to argue those point[s] and then, obviously, Mr Campbell, you have your response to that.

As we see the issue as plainly constituted and the finding of his Honour, this Court would not be in a position to deal with any other issue on this appeal being the issue of contribution and the like …”

14 Beazley JA was not making a final ruling as to the issues that were to be canvassed in the appeal but was indicating the Court’s prima facie position, subject to senior counsel’s submissions. Senior counsel for all parties did not demur from the propositions so put and it was accepted by them that only the two broad issues outlined by Beazley JA would be addressed in argument and dealt with by this Court. This position did not change and at the close of addresses senior counsel reiterated their agreement to the course that her Honour had proposed.

15 Thus, the issues before this Court are:

(a) Did the judge give inadequate reasons in regard to two of the particulars of negligence on which the appellants relied, these being:

(i) “(o) permitting Tali, a five and a half year old beginner, to go on the Ride” and

(ii) “(t) failing to individually lead Tali during the course of the Ride”.

(b) Did Grove J err in rejecting the appellants’ argument based on particular (t) in holding that it was not negligent for the respondents to allow Tali to go on the trail ride without her horse being led.

The parties’ arguments

16 At trial, the appellants sought to support their case by leading the evidence of two experts on horse riding, Ms Pearson-Adams and Ms Bennit. They also attempted to tender part of a report by a paediatrician, Dr Williams. They submitted that this report was relevant to the negligence alleged, but the judge refused to admit that evidence. This decision by his Honour is challenged in a separate ground of appeal.

17 The thrust of the evidence of Ms Pearson-Adams and Ms Bennit (that remains relevant in the context of the appeal) was that the respondents were negligent in allowing a beginner as young as Tali to go on a trail ride without one of the trail leaders leading her horse. Ms Pearson-Adams and Ms Bennit propounded an absolute rule. There should be no trail rides for beginners of Tali’s age at all; or if there are to be trail rides for such persons, their horses have to be led. This position was maintained on appeal.

18 The respondents relied on one expert, Mrs Smyth. In addition, Mr Lloyd, who was in charge of Otford Farm , gave relevant testimony in regard to the negligence alleged, as did Mrs Katherine Caruana and Ms Brooke Warriner, who were trail guides on the ride in which Tali was injured.

19 The respondents argued that, although there were inherent risks in riding horses, and those risks increased for beginners, they had a reasonable system to cope with those risks.

20 The respondents contended that, subject to the proper implementation of their system, it was quite appropriate for them to take a girl aged 5 years 8 months, who was a beginner, on a trail ride. They disputed that that was per se negligence. The respondents, in the course of their business over many years had taken many beginners of Tali’s age out on trail rides without their horses being led.

21 The respondents disputed the absolute rule contended for by the appellants, namely, that the horse of a beginner aged 5 years 8 months, should be led on a trail ride. They asserted that it was reasonable for that decision to be left to the discretion of the experienced and trained guide, having regard to the exigencies of any particular situation that might arise.

22 The respondents asserted that nothing had occurred during the course of Tali’s ride that should have led the guides to attach a lead to her horse. They pointed out that the accident had occurred near the end of the ride, after Tali had ridden for 45 minutes, and – for a beginner – had ridden well.

Otford Farm , its operators and trail guides

23 The Lloyd family had owned Otford Farm since 1961. The Farm commenced conducting trail rides in the mid-1970’s. Mrs Lloyd then played an active part in the business. Mr Lloyd is the son of Mrs Lloyd. He became involved with Otford Farm ’s activities from 1978, when he was attending University. From 1981 he worked at the Farm on a full-time basis.

24 By 1998, Otford Farm had been conducting trail rides for members of the public for some 25 years. During this period, many children – including children aged from five to six years – had undertaken trail rides at Otford Farm . As part of Otford Farm ’s business, it had, for the same period, taught horse riding and ran holiday camps where children (aged from eight years to 16 years) were taught to ride horses. Otford Farm ’s business increased until it stabilised in the early 1990’s when approximately 5,000 persons came each year to ride horses at the Farm. Otford Farm ’s business bears out the observation in The Horse and the Law, 3rd ed Pannam at 4.20 that trail riding “has become a very popular weekend and holiday activity in Australia”.

25 The trail on which Tali rode had been developed and used over the years. It was between 2.5 to 5 kilometres long. It involved going down a creek bank, crossing the creek, going up the other side, ascending a steep, short hill and then going through a section of rain forest and passing through sections that flattened out. It travelled a roughly circular path that the riders traversed in an anti-clockwise direction.

26 Mr Lloyd had had many years experience in running Otford Farm . Grove J regarded him as competent in the work that he did and as possessing the necessary knowledge to conduct the business of operating trail rides in a reasonable and safe fashion.

27 For many years, Otford Farm had employed persons as trail ride leaders. Mrs Caruana and Ms Warriner were two such trail ride leaders. As part of their duties, they cared for the children at the holiday camps, helped the children catch and saddle horses, taught children how to ride and stayed with the children overnight in the cabins.

28 Mrs Caruana was born and raised on a country property and had ridden as long as she could remember. She was on horses when she was in diapers and she started at a pony club at the age of four. She had extensive experience in riding and in trail riding. She was a science graduate and had a Masters Degree in Occupation Health and Safety. She had received “on the job training” for six months after obtaining employment at Otford Farm . It was only then that she was given the responsibility of leading trail rides. In the first six months of her training she went through the standard procedures adopted by the Farm when greeting people who arrived, getting their helmets and making sure that they fitted correctly, “going through their abilities and riding experience and selecting appropriate horses for them and going through the training with them”.

29 Ms Warriner recalled being on a horse at the age of three years. She was described as “a city girl whose parents owned a country retreat where she rode horses from about the age of five”. From that age she frequently rode trails and engaged in gymkhanas. She obtained a degree of Bachelor of Agriculture, majoring in equine studies. She had the same training as Mrs Caruana while at Otford Farm before becoming a trail leader.

30 In regard to the training Mrs Caruana and Ms Warriner received at Otford Farm , Grove J said that he was unpersuaded that any relevant deficiency had been shown in Mr Lloyd’s ability “to or in what he did impart to the employees” and, in particular, to these two persons.

31 It was put to Mr Lloyd in cross-examination by Mr Neil that both Mrs Caruana and Ms Warriner were very experienced riders and were used to trail riding with young children of varying degrees of experience including beginners. Mr Lloyd agreed. Mr Neil put to Mrs Caruana that she was “a very experienced participant” and she agreed. The expertise of Mrs Caruana and Ms Warriner was not challenged.

32 Prior to Tali’s accident, an accident had never occurred at Otford Farm through a person falling from a horse and being carried along with his or her foot in the stirrup. There was, indeed, no evidence that any child or anyone else had been injured while undertaking activities on Otford Farm during the 25 years that it had carried on its trail ride business.

The system adopted by Otford Farm  in regard to beginners

33 The safety system adopted by Otford Farm relied on the skill and experience of Mr Lloyd and the trail guides. It is conveniently seen from the evidence of Mr Lloyd, Mrs Caruana and Ms Warriner when they testified as to how it was implemented in relation to Tali and her group.

34 Ms Warriner said that she had a regular routine that she went through with every group that she took riding, and she did this with Tali’s group. She gave a preliminary lesson to the persons about to embark on the ride and explained the basics of riding to them. She paid particular attention to beginners and children and made sure that they understood what they were being told.

35 Ms Warriner carefully chose appropriate horses for the individual riders. She ensured that each rider was given appropriate equipment and that the equipment was properly put on and worn. She then put the riders on the horses, and made sure that each could properly sit on the horse, hold the reins, have the feet correctly in the stirrups and control the horse. She made the aspirant riders stand up in the saddle so that she could check the length of the stirrups for each person. She checked to see that the helmets were the right size. She required the riders to nod their heads with their helmets on to see if the helmets moved. She checked the helmets generally. She observed whether the riders were seated and positioned properly in the saddle and assessed whether they had absorbed what she had told them and what they needed to understand in order to undertake the trail ride.

36 Ms Warriner explained how the riders should get their horses to move off and “how to stop your horse, how to turn left and right, how to get it to go, how to sit in the saddle, how to hold your hands, how to position your feet, to lean forward when going up hills and lean back going down hills”. She would demonstrate, physically, what should be done in these respects and sometimes would ask a rider to physically carry out what she had demonstrated.

37 The riders then moved off from the mounting yard and through a gate on to the trail. During this preliminary period, Mr Lloyd watched them ride. Mr Lloyd said that he could assess in five minutes how “somebody is sitting and controlling the horse”. He said that he could observe within five minutes of watching a person riding, including a young child beginner, whether that person had the ability to control a horse adequately for a trail ride. After that he would leave it to the trail ride leader to determine whether a change should be made, whether the child should be taken off the horse, whether a horse should be led, or whether the ride should continue in the way it had commenced.

38 The trail itself had been used for many years, was well-known to the horses and the guides, and the respondents regarded it as suitable.

39 Once the group rode on to the trail, they came under the care and responsibility of the guide. The guide would carefully observe the riders to see if they were having any difficulties and would be particularly vigilant with young children who were beginners. The guide would exercise her discretion in deciding what precautions needed to be taken for an individual rider. The guides were experienced and well qualified in their task.

40 Mr Neil put to Mr Lloyd in cross-examination that he had observed each of Mrs Caruana and Ms Warriner on numerous occasions “about how they went about giving instructions, conducting trail rides, addressing safety issues” and “including many occasions when they did so with young children” and “in … many instances when the young children were beginners”. Mr Lloyd agreed. Mr Lloyd accepted that his expectation was that Mrs Caruana and Ms Warriner would adopt and apply the standards that they had been instructed to follow.

41 Mr Lloyd said that he relied upon Mrs Caruana and Ms Warriner to make their assessment of the riding ability of Tali and Jared and their capacity to undertake the trail ride. He considered that they had the training experience and reliability to make accurate assessments in these respects. In cross-examination, Mr Neil put to Mr Lloyd:

“[Y]ou regarded Kate [Mrs Caruana] and Brooke [Ms Warriner] as experienced, competent and reliable assessors of beginner children for trail rides”.

Mr Lloyd replied in the affirmative.

42 The following exchange is relevant:

“Q. Would you have expected Kate and Brooke in April 1998, when you had a mixed group of prospective trail riders, including young beginner children, to make a careful assessment of young beginner children to see if those children were suitable in their view to go out on the trail?

A. Yes, with the qualification that they would have conducted a transaction with myself in the office and had gone through the process of where they should be and what particular facility they were using at the farm, whether it be a lesson or a pony lead.

Q. I’m assuming we have got beyond the office and we are actually at a group of seven or eight or so riders of mixed age and experience, including two young beginner children, and Kate and Brooke are assigned to be the trail ride leaders. In that situation you would expect Kate and Brooke to make a careful assessment of those children?

A. Yes, and where they were going.”

43 Mr Lloyd said that the exercise of the trail leader’s discretion “in relation to young beginner trail riders and the use of leads on the trail” would depend on a number of factors, including “the size of the group, the riding ability of the group, whether they were all the same or whether it was a mixed group” and “whether there were other adults in the group that could lead their own children”. He said that sometimes Otford Farm suggested that a child be led if they thought that the child was not capable of fully understanding instructions or was a little nervous or hesitant.

44 Mrs Caruana acknowledged that she had previously used leads in trail rides with young children who were beginners. She said:

“Not every child had to be on a lead. Either the mother asked for it or if they were under a certain age they had to be led, or sometimes at the pony club camps if they weren’t confident enough or they couldn’t control their horse or didn’t know how to turn him or pull him up or something, then we’d put a lead on.”

The circumstances leading to Tali’s fall

45 On the day of the accident, Ms Duncan took Jared and Tali to Otford Farm . She told Mr Lloyd that she would like to go on a trail ride with her two children. Mr Lloyd told her that Otford Farm provided trail rides or pony rides and she could hire ponies and lead the children while they walked. Ms Duncan refused the pony rides and said she wanted her children to have trail rides.

46 Mr Lloyd thereupon told Ms Duncan, Jared and Tali to go into the mounting yard. There, Ms Warriner questioned them and ascertained that they had not ridden before. She chose horses for them with this in mind. She selected Patch for Tali and a horse named Blinky Bill for Jared. Both these horses were over 20 years of age and were used for beginners every day. They were very docile, relaxed and slow. Mrs Caruana said that these horses had never done anything wrong in the time she had been there. She said that these were the horses to select for nervous beginners. They were “the safest horses generally that we had”.

47 Ms Warriner proceeded to give instructions and demonstrations to the group as I have described. She then adjusted the saddles and girths, placed the riders on their horses and saw to their stirrups. While Ms Warriner was so instructing the group, Mrs Caruana arrived. She had returned from a ride and noticed that Ms Warriner was taking out the next group. She went down to the mounting yard to assist her.

48 Mrs Caruana explained in the following testimony what Ms Warriner did once the riders were on the horses.

“Q. What did she do then?

A. She gave a lesson in how to hold the reins, where to place your feet and how to stop a horse, how to turn a horse, how to kick the horse up if you wanted it to move and not to bring your hands up high. If you bring your hands up high you will lose your balance, so keep them down low and at any time you are feeling unsafe you with [sic] grab the front of the saddle to pull yourself – bring yourself into the seat of the saddle.

Q. How did she do that; where was she?

A. Everyone was in a semi-circle and she was in the centre of the semi-circle, sort of in between everyone.

Q. And did she, apart from saying these things, make any actions to show anybody anything?

A. Yes, and everyone had to demonstrate that they were following what she was saying, and if she asked them to turn their horse’s head to the right they would have to reach down the rein to turn their horse’s head to the right, and make sure everyone was capable.

Q. You’ve said reach down. Could you explain to me how you do turn the horse’s head to the right, for instance?

A. Just by sliding your hand down the rein and pulling back to your hip or – back to your hip so that it’s not coming up high to your shoulder and losing control.

Q. Did you see Brooke do those demonstrations.

A. Yes.”

49 While Ms Warriner was giving these demonstrations, she noticed that Tali and Jared were not paying attention. Accordingly, she asked Mrs Caruana to give a second lesson to Jared. Ms Warriner gave a second lesson to Tali to make sure that she understood what she had been told. Ms Warriner said that she ran through the lesson “one on one” with Tali. Mrs Caruana did the same with Jared.

50 Mr Lloyd, in accordance with his custom, cast a glancing eye over the group. As it was “a mixed group of riders” (experienced riders and beginners) he asked Mrs Caruana to accompany the group on their ride. He suggested to Mrs Caruana that they might have to break up because there were “two different groups of capabilities”. Mr Lloyd gave Mrs Caruana a lead rope in case that proved to be necessary for one of the riders, particularly one of the inexperienced riders.

51 Mr Lloyd led Tali’s horse out of the gate. Ms Warriner rode in front and Tali was the first rider behind her. Mr Lloyd noticed that Tali was steering the horse and sitting correctly. The following exchange is relevant:

“Q. And from what you did see of the instructions and from your own action in leading Tali’s horse out the gate and observing the trail ride go off, you had no reason to think that on this occasion there was any need to be concerned about the assessment of Tali and Jared which Kate and Brooke had made?

A. No.

Q. You would have expected Kate and Brooke, in assessing Tali and Jared as part of the group, to satisfy themselves that those children had understood the instructions that they were given?

A. Yes.”

52 Mrs Caruana observed Jared for the first part of the ride. She said that he seemed to be enjoying the ride and was quite capable. He had no problems with his balance and was controlling his horse quite well. Mrs Caruana did not consider that there was any need to use the lead she had brought with her.

53 In the first part of the ride there were two or three short trots, each five to 10 metres long, and Tali coped well with these. On one of the short trots Jared fell off his horse, but remounted. The judge was not persuaded that Jared’s fall required that anything be done to or for Tali “by way of reasonable response by anyone for whom the defendants are responsible”.

54 Throughout the ride Ms Warriner frequently checked on Tali. She looked to see whether Tali’s feet were in the right position, that she had control of the horse and that her reins were not too lose or tight. Ms Warriner observed Tali to be coping with the ride “very well for a beginner”. Ms Warriner had no concerns about how Tali was riding. Mrs Caruana said that Tali was coping well, she appeared to be centred and balanced and have co-ordination in relation to the holding of her reins.

55 Later the group split and Mrs Caruana took the more experienced riders. This occurred about half way along the ride, after about half an hour’s riding. At that point, Mrs Caruana handed the lead to Ms Warriner so that she could have it available while escorting the beginners’ group. The division took place because some riders were advanced and the guides thought that it appropriate to separate them from the beginners.

56 Ms Warriner stayed with the appellants and one other young girl who fell into the category of beginners. This girl had done some riding and was a competent young rider. She was riding Hiawatha. Hiawatha had also always been used for beginners and at the time of the trial was still so being used. There had never been any difficulty or hostility between Hiawatha and Patch.

57 Ms Duncan agreed that, on the trail ride, Tali and Jared, to her observation, “had been fine” and ”they were enjoying it”. From the time the whole group divided, Tali had ridden “very well”. She was centred in her saddle and held the reins appropriately. Her feet were appropriately in the stirrups. She did not appear to be anything other than a normal little girl of her age.

58 The accident occurred after the group emerged into an open area. Before then they had been in single file. Once they had moved into the open area, the horses tended to move into a different formation. They were proceeding at a walking pace. Ms Warriner had turned around and was talking to Tali. Suddenly, Hiawatha, who was behind Patch, bit out at Patch’s rump. Patch leapt to the side. Tali lost her balance. For about five metres, before Tali hit the ground and while she was still in the saddle, Patch quickened his pace. Tali caught her foot in a stirrup. Patch began to accelerate and run faster and faster. The horse’s legs hit Tali as he galloped. Tali’s helmet was dislodged and she was dragged along the ground for more than one hundred metres.

59 Ms Warriner agreed that had Patch been on a lead that she was holding, he would not have been able to get to 5 metres away from the point from which he commenced galloping.

The appellants’ scattergun approach at trial and its consequences in relation to the judge’s reasons

60 In The Cherry Orchard Chekhov wrote:

“When a lot of remedies are suggested for a disease, that means it can’t be cured.”

The message underlying Chekhov’s observation is applicable to the conduct of litigation.

61 An extravagantly excessive number of causes of action, or grounds of appeal, or particulars of negligence, are often a sign of serious problems with the health of the case being advanced. At the very least, they demonstrate a lack of appropriate consideration in formulating the issues and are obstacles in the path of justice. Apart from causing unnecessary delay and costs, the scattergun approach obscures the true issues, camouflages the pleader’s best points, and unnecessarily complicates the task of the judge.

62 Of course there may be cases that are inherently complex and where it is not possible to plead the case or the argument in a simple and concise way. But that is not this case. The accident, tragic as were its consequences, did not involve any intricate or convoluted set of facts or complex questions of law. The facts were relatively straightforward and the legal issues, although not easy to resolve, were capable of simple definition. Nevertheless, the appellants’ statement of claim contained no less than 27 particulars of negligence (numbered from (a) to (aa)).

63 Virtually every form of negligence that could possibly arise was pleaded. The particulars of negligence ranged from providing defective equipment of many kinds, to failing to supervise the putting on and wearing of the equipment, to failing to provide equipment, to failing to engage suitable trail leaders, to failing to instruct the appellants properly before the ride, to the choice of the terrain, to failing to lead Tali’s horse, to failing to control Tali’s horse and to restrain the other horses, to the positions the trial leaders took during the ride, to the trial leaders’ conduct after the fall, to failures to warn, and to allowing Tali to undertake the ride at all.

64 Grove J rejected every one of the 27 particulars pressed during the leading of evidence. Whether or not these particulars were listed in order of perceived importance (or in any order) is not apparent. The fact is that – on appeal – of the 27 particulars, only the fifteenth and twentieth particulars (particulars (o) and (t)) remain alive. His Honour’s decisions in regard to the remaining twenty-five are accepted.

65 The trial lasted seven days, of which only part of one day was taken up with closing addresses. In that day, all the parties’ arguments on the 27 particulars were put to his Honour. On appeal, the two particulars still pressed were argued over an entire day, the Court sitting late so as to enable the addresses to be completed. The inference is that it was only on appeal that the appellants focused, properly, on the critical issues.

66 The approach adopted by the appellants at trial undoubtedly affected the way in which his Honour wrote his reasons. His Honour addressed every one of the 27 particulars of negligence. Many of them did not stand alone in the sense that his Honour’s reasons in regard to some had a bearing on his reasons in regard to others. Also, his Honour made general observations applicable to all issues of negligence raised by the appellants. Some of the particulars pleaded had no prospects of success and his Honour dealt with them summarily, as they deserved. Generally, his reasons directed to each specific particular were brief, but this succinctness was no doubt brought about by a desire to confine the judgment to a reasonable length. In the light of the prolix particulars, his Honour’s concision was required – to use the language of Justice Oliver Wendell Holmes (albeit in a somewhat different context) – as “a concession to the shortness of life”: Reeve v Dennett, (1887) 11 NE 938 at 944.

67 In these circumstances, it becomes difficult for the appellants, as the parties responsible for the unnecessary prolixity, to argue that the judge’s reasons were inadequate because of brevity and a failure to deal with each and every argument and sub-issue raised.

The judge’s reasons for not relying, generally, on the appellants’ experts

68 Grove J’s reasons for rejecting particulars (o) and (t) were based partly, but significantly, on his adverse findings concerning the reliability of Ms Pearson-Adams and Ms Bennit, the appellants’ experts.

69 His Honour criticised their testimony in several respects. He observed that Ms Pearson-Adams had been involved as an owner and operator of equestrian training centres for 25 years in the United Kingdom and for seven years in Australia, and said:

“Whilst she states that she has been a consultant to trail riding escorts, I apprehend that a recreational trail riding establishment such as Otford Farm is very different from an equestrian training centre.”

70 The judge expressed similar views concerning Ms Bennit’s expertise. He said that while Ms Bennit was intensely interested in “high grade” equine activities, those activities were “distant from anything that might apply to conduct of or participation in recreational trail riding”.

71 Mr Neil submitted that his Honour was wrong in regarding Ms Pearson-Adams as not having the requisite experience in trail riding. Ms Pearson-Adams said that she had acted as “business consultant/advisor” to many equestrian centres, including trail riding centres, in several countries. At the time of the trial she was running her own organisation which was “audited to deliver all the sport and recreation (equestrian) certificate courses, and outdoor recreation (trail riding) courses – this latter includes all of the industry modules covering trail riding accreditation”.

72 Undoubtedly, Ms Pearson-Adams had expertise to give opinions on trail riding. The same applied to Ms Bennit. I do not think that his Honour found to the contrary, but considered, rather, that the practical experience of these witnesses had been directed more to aspects of horse riding other than trail riding. In my opinion, if his Honour did err in emphasis in this respect, that error was insignificant.

73 Grove J formed the view that Ms Pearson-Adams and Ms Bennit were partisan witnesses. He observed:

“The impression I gained from her report [that of Ms Pearson-Adams] and her evidence was that she engaged in a search for whatever she could to criticise about the Otford Farm ’s operation. It is not insignificant that much of her criticism is not, and cannot be, pressed in the light of the evidence which emerged. For example, her criticisms of the equipment are not sought to be supported now.”

His Honour said that Ms Bennit “also manifested a leaning towards fault finding in the [respondents]”.

74 Mr S G Campbell SC who, together with Mr Davis appeared for Mr and Mrs Lloyd, submitted that the fact that Ms Pearson-Adams and Ms Bennit gave evidence in support of each of the 27 particulars of negligence, and that the appellants did not challenge the rejection of 25 of them, adds considerable weight to his Honour’s view of the reliability of Ms Pearson-Adams’s testimony and his unwillingness to rely on it. In my view that submission must be accepted. I would add that, on my reading of the transcript, his Honour’s view of these witnesses was amply justified.

75 Grove J was impressed by the respondent’s witnesses, being Mrs Smyth, (the respondents’ expert), Mr Lloyd himself and the two guides (Mrs Caruana and Ms Warriner). Their views were contrary to those of Ms Pearson-Adams and Ms Bennit.

76 Grove J was particularly impressed by Ms Warriner and Mrs Caruana. He pointed out that neither was still employed by the respondents, nor did they have any apparent connection with the Lloyds. Mrs Caruana was living in Muswellbrook at the time and Ms Warriner had been living in England for over four years. His Honour said he regarded them as independent witnesses.

The judge’s reasons for his rejection of particular (o)

77 His Honour prefaced his reasons in regard to particular (o) (the allegation that the respondents were negligent in permitting Tali to go on the trail ride) by pointing out that it was “apparently significantly premised” on the opinion of Ms Pearson-Adams. Ms Bennit also testified in support of this particular. I have set out above the reasons the judge gave, generally, for not relying on the opinions expressed by these witnesses.

78 Ms Pearson-Adams testified that beginners should only be allowed on trail rides once they had had three to six or four to seven lessons. (She expressed the opinion that Tali should have been on a lead rein, but this is a matter that falls under particular (t), dealt with below). The appellants relied on Ms Pearson-Adams’ testimony in support of their argument that Tali, who had not been taught before coming to Otford Farm , should not have been allowed to go on the trail ride at all.

79 The judge remarked that Ms Pearson-Adams “was a strong proponent of extensive training, observation and preliminaries before anyone would be permitted to participate in a trail ride”. His Honour said that Ms Bennit, on this aspect, was “a little more realistic”. His Honour commented:

“[Ms Bennit] recognised that customers would come virtually ‘off the street’ without formal horse riding training or experience and that a trail ride by such members of the public was a commonly provided facility throughout Australia.”

Ms Bennit agreed that giving beginners a series of lessons before taking them out on a trail ride was unrealistic. Nevertheless, she said that “[n]o child of five and a half years should be taken on an open trail ride.”

80 Mrs Smyth disagreed with Ms Pearson-Adams’s opinion that beginners needed a series of lessons before being taken on a trial ride. She said:

“I do agree with the general proposition put forward by Ms Pearson-Adams that ideally beginner riders should have some lessons before engaging in trail rides. The difficulty with that concept is, however, that operations such as those run by Mr Lloyd are designed by their very purpose to enable people to experience horse riding without having to undertake time consuming and potentially costly lessons.

If every member of the public who wanted to go on a horse ride was required before being allowed to do so, to undergo lessons and training and obtain the sort of qualifications referred to by Ms Pearson-Adams then in most instances it would put the horse riding beyond the financial reach of the average individual.”

Mrs Smyth’s testimony, generally, was contrary to the proposition that a beginner of Tali’s age should not be taken on a trail ride.

81 Grove J said that he preferred the evidence of Mrs Smyth to Ms Pearson-Adams and Ms Bennit. His Honour’s preference for Mrs Smyth is an additional reason he gave for rejecting the appellants’ case in regard to particular (o).

82 A further reason given by his Honour in regard to this particular, and generally in finding for the respondents, is apparent from the following remarks:

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

83 As part of the judge’s observations made generally in regard to the appellant’s case, he said:

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

84 I understand these comments to mean that, irrespective of the expert opinions, his Honour considered that it was reasonable not to lay down an absolute rule to the effect that allowing a beginner of Tali’s age to go on a trail ride was negligent; it was reasonable to allow the decision as to the competence of the beginner to undertake a trail ride (with or without a lead) to be made by competent expert trail guides (such as Mrs Caruana and Ms Warriner). While there were inherent risks in riding horses, and those risks were increased when the riders were beginners of Tali’s age, his Honour considered that society would regard those risks as acceptable (subject to the discretion of the trail guides) when balanced against the benefits and pleasures afforded to the community as a whole from allowing parents to take their young children on trail riding outings.

85 In my view, the reasons given by his Honour adequately explain the reasons which led him to the conclusion he came in regard to particular (o).

The reasons in regard to particular (t)

86 The specific reason given by his Honour for rejecting particular (t) (“failing to individually lead Tali during the course of the ride”) is the following:

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

87 Mr Neil submitted that the above quoted reasons were irrelevant to the issue. I do not agree.

88 Mr Neil submitted that the respondents’ policy of having regard to the capacity of individuals, rather than laying down an absolute prohibitory rule, was negligent. He argued:

“It’s left to the discretion of the trail leader in circumstances where it is known to [the leaders] and Mr Lloyd that something of the type, some kind of event could occur of the sort that did, which objectively is an ever present risk of catastrophe.”

89 Grove J’s reasons indicate that he accepted, implicitly, that the respondents’ policy was indeed reasonable, and that they had applied it in a way that did not reveal negligence on their part or on the part of their employees. His Honour’s reasons were directed to this crucial issue.

90 The fact that Tali had ridden Patch for a period of about 45 minutes before the accident occurred, and she was seen by the two guides to be riding well and enjoying the excursion, supported the finding that there were no reasonable grounds to conclude that she required her horse to be led.

91 It is true that his Honour did not refer expressly to the question whether the respondents’ policy, itself, was reasonable in the circumstances. But, due regard must be had to the reasons as a whole. The appellants’ argument regarding the adoption of an absolute rule in regard to the use of a lead (like their argument with regard to particular (o)) was significantly premised on the opinions of Ms Pearson-Adams and Ms Bennit. As I have mentioned, his Honour gave reasons, in some detail, as to why he regarded their evidence as unreliable and why he preferred the evidence of Mrs Smyth, Mr Lloyd, Mrs Caruana and Ms Warriner. These reasons apply equally to particular (o). On the evidence of the respondents’ witnesses, who his Honour expressly preferred, the circumstances did not reasonably require Tali to be led.

92 I have also mentioned, that, as part of his reasons applicable generally to all the particulars, Grove J considered that, irrespective of the expert evidence, the general assertions of breach of duty were not sustained. I have explained that that statement should be understood as being the conclusion to which his Honour came after undertaking a balancing exercise involving the likelihood of risks on the one hand and the benefits to the community on the other.

93 In my opinion, his Honour gave adequate reasons for concluding that particular (t) should be rejected.

The argument that the trial judge wrongly rejected the appellants’ expert witnesses

94 The appellants’ arguments that Grove J erred in finding that there was no breach of duty as alleged in particular (t) can be divided into two categories:

(a) His Honour wrongly rejected all of the evidence of Ms Pearson-Adams and Ms Bennit.

(b) Even without the evidence of Ms Pearson-Adams and Ms Bennit, Grove J, exercising his own judgment, should have found a breach of duty on the part of Mr and Mrs Lloyd (either personally or vicariously). In support of this argument, the appellants submit that his Honour wrongly rejected the evidence of a paediatrician Dr Williams that bore on this issue.

95 I have, above, dealt with the appellants’ argument that the testimony of their experts, Ms Pearson-Adams and Ms Bennit, should have been accepted, and it is not necessary to repeat what I have stated.

96 In my opinion, having regard to the standard authorities relating to the way in which an appellate court should approach credibility findings on appeal (whether relating to expert witnesses or otherwise), it is not open for this Court to differ from the trial judge’s views as to the reliability of the appellants’ witnesses.

The judge’s rejection of the evidence of the paediatrician

97 Dr Williams was a paediatrician whose report was tendered in evidence. The appellants’ solicitors had asked Dr Williams to respond to the following questions:

“Based on the information provided to you, in your opinion would Tali’s ability to:

a. Follow instructions;

b. Take reasonable care for her own safety;

c. Engage in recreational activities such as riding a horse;

have been affected by the extent of autism that it was believed she suffered from as at the time of the accident?

98 Dr Williams responded as follows:

“(a) Tali at the time of the accident was 5 years and 9 months. She would have been able to follow 2-3 step instructions. I have no idea what instructions were given to Tali. I enclose the Denver II which outlines the development skills of a child of Tali’s age.

(b) I don’t believe any child with or without autism can take reasonable care for his/her own safety on the back of a horse. I don’t know what precautions were taken to protect her from injury or a fall.

(c) I know from my experience in disability that horseriding is an enjoyable activity not only for healthy normal children but also for children with a disability. I have no objections to such recreational activity. Her autism should have been taken into consideration at the time of riding a horse. She may not have the social, emotional nuances to report impending danger or seek emotional and physical support.”

99 At trial, the appellants sought to tender this part of Dr Williams report but Grove J refused to admit it. The appellants argue that his Honour thereby erred.

100 At trial, Mr Campbell argued that the report should not be admitted as Dr Williams’s expertise did not support the opinions expressed. The judge in rejecting the evidence said:

“What he is talking about is the ability of a child to ride a horse. That is a very particular activity. I reject paragraph (b).”

As I understand the discussion between his Honour and senior counsel when the admissibility of this part of Dr Williams’ report was being debated, his Honour did not regard the remaining paragraphs (a) and (c) as being relevant.

101 In sub-paragraph (a) of the disputed passage, Dr Williams said that Tali “would have been able to follow two-three step instructions”. In the course of argument on appeal there was some discussion between the bench and senior counsel that was premised on the assumption that Dr Williams was saying, implicitly, that any child of Tali’s age would have only been able to follow two-three step instructions. I do not think that this construction of the sentence in question in Dr Williams’s report is correct.

102 Prior to the accident Tali had “manifested developmental symptoms which might be labelled as forms of autism”. According to the appellants’ solicitors, it was believed that she “suffered from a mild form of autism (possibly Asperges syndrome) because of characteristics of aloofness and slight delay”. (I should say that the respondents were never informed about this). It was this history that led the solicitors to ask Dr Williams the questions I have set out above.

103 The specific question to which Dr Williams was responding in sub-paragraph (a) was whether, based on the information provided to him, Tali’s ability to follow instructions had been affected by “the extent of autism that it was believed she suffered from as at the time of the accident”. Dr Williams’ reply was a response to this question (which concerned the ability of Tali alone). The reply should not be taken to apply to all children aged five years and nine months.

104 I accept that the reference to the “Denver II” document in the second sentence of paragraph (a) is ambiguous. The purpose of the reference to this material is not clear. It may have been intended to enable a comparison to be made between Tali and a child of her age not suffering from autism. Whatever the intention, I do not think that sub-paragraph (a) tends to prove that all children of Tali’s age would have been able to follow two-three step instructions.

105 Apart from the ambiguity I have identified, Dr Williams does not say that all children of Tali’s age are limited to following two-three step instructions. Moreover, there was no evidence as to what was meant by two-three step instructions. Finally, it is not at all clear how the concept of two-three step instructions is applicable to riding horses, an activity that may be based, to an important degree, on instinct and natural ability.

106 As regards the bald assertion made in sub-paragraph (b), the question whether a child “with or without autism” can take reasonable care for his/her own safety on the back of a horse is not a question which can be answered by a paediatrician simply on his knowledge of children. Particularly when the opinion is expressed as being applicable to all children, without having regard to the particular capacities of different individuals. What is needed to ride a horse safely is a matter that requires expertise. There was nothing in Dr Williams’s report that qualifies him as an expert in this respect.

107 In my view, Grove J correctly rejected this part of Dr Williams’s report. In any event, in my view, it adds nothing of consequence to the issues before the Court.

Do the proved facts, without the support of the appellants’ expert opinion, establish a breach of the duty of care?

108 The appellants argued that, even without the expert evidence of Ms Pearson-Adams and Ms Bennit, the proved facts establish a breach of duty on the part of the respondents (either personally or vicariously). I turn now to that issue.

109 Grove J found:

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

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

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

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

(e) The horses were suitable for each of Tali, Jared and [Ms Duncan];

(f) The ride was suitable for each of Tali, Jared and [Ms Duncan].”

110 The appellants did not challenge these findings. It must be said, however, (in regard to finding (f)) that they submitted that the ride was only suitable for Tali if an appropriate person led her horse.

111 The appellants did not submit that the respondents did not have a system of conduct at Otford Farm that was intended to take care for the safety of all trail riders, including beginners. Nor did the appellants contend that the respondents had implemented that system in a careless way. The appellants’ challenge was to the system itself. They argued that it was negligent of the respondents not to have had an absolute rule that a beginner of Tali’s age should not go on a trail ride without her horse being led by a lead rein. They contended that that is not a matter that should have been left to the discretion of the trail leaders.

112 Undoubtedly, there are grave risks in riding horses. Horses can panic, shy, rear and kick unexpectedly, and gallop out of control when surprised or frightened. Mr Lloyd accepted that one could not predict fully what a horse might do. He accepted that it was foreseeable that a horse could get “spooked” and run away, and that in those circumstances a person’s foot might get caught in the stirrup and the person might be dragged for a substantial distance. He said, however, that this possible scenario was “much less” possible than “the scenario of it not happening”. He agreed that there was always the chance that even a docile horse (such as Patch) could act in an unpredictable way.

113 Mrs Caruana accepted that it was much easier to keep a horse under control with a lead (although even then the horse may not be able to be controlled). Mrs Caruana said that should a horse bolt, the rider, whether a child or an adult, would be powerless. Nevertheless, she accepted that young beginners without experience were at the greatest risk, as they did not have the physical strength of adults.

114 Ms Warriner agreed that leading a horse being ridden by a young child -who was a beginner – was “a very good safety measure”. She agreed that leading “would mean that there was much more chance of the horse on which the child was riding remaining under control than if no lead was used”. She agreed that, with a lead, there would be less chance of the horse breaking away and running off if it became frightened or spooked.

115 Mr Neil submitted, and I accept, that the probabilities are that, had Ms Warriner led Patch, the horse would not have been able to gallop away and Tali would not have been dragged along the ground.

116 Mr Neil submitted further that the risk of a horse behaving as Patch did was clearly foreseeable and the risk of serious harm being caused thereby to the rider was equally foreseeable. He submitted that Tali, as a beginner of a very young age, was particularly vulnerable, her injury would not have occurred had Patch been on a lead, and a lead could readily have been used. He submitted that on these grounds negligence was inevitably established.

117 This argument is not dissimilar to that upheld by the majority in Carrera v Honeychurch (1983) 32 SASR 511. In this case the plaintiff, an overweight 22 year-old woman who had never ridden before, went out on a group ride organised by a riding school. A horse someone else was riding came close to her horse. The plaintiff’s horse made a side-stepping movement to the side and the plaintiff fell off. The plaintiff sued the riding school. She argued that the defendant should have warned her of the risk were her horse to get too close to another, and she should have been given more tuition before being allowed to proceed on the ride at all. She argued further that the guides should have been instructed to keep other horses away from her horse, and, if necessary, to lead her horse.

118 At first instance, Jacobs J said at 518:

“Some of these propositions can be accepted, as general propositions, although in some respects they approach a standard of perfection rather than a reasonable standard of care, for the defendant is not an insurer.”

His Honour did not uphold the plaintiff’s argument. He said at 518 to 519:

“[T]he defendant was, in my opinion, entitled to rely on the experience and judgment of the escorts on the spot, young as they were, and the general instructions he had previously given them. The plain fact is that there was nothing abnormal or unusual about this trail ride, with the novice riders under escort at the rear, up to the point of the plaintiff’s mishap. With the assistance of the escorts, she had successfully coped with whatever difficulties she had encountered, including negotiating the uneven terrain of the ‘gulley’ with success, even if not with a great deal of confidence. There was nothing to suggest to the escorts that they should have taken Black Gypsy [the plaintiff’s horse] on a lead away from the other horses. … [Much] of the case now sought to be made for [the plaintiff] depends upon hindsight, simply because she fell off.”

The reasoning of Jacobs J is similar to that of Grove J in the present case.

119 The majority of the Full Court was of a different view. Mitchell ACJ found that the defendant had a duty of care that it had breached. Her Honour based her judgment on foreseeability; she did not address the question whether it would have been reasonable for the defendant to take the precautions contended for by the plaintiff. Wells J, in agreeing with Mitchell ACJ, reasoned in the same way. His Honour said at 524:

“The existence of a duty of care depended upon whether there was a real, not a far-fetched or fanciful, risk that a class of events would happen that included what in fact happened, and whether what in fact happened was, for that reason, reasonably foreseeable: Mason J in Wyong Shire Council v Shirt. When that test is applied, it seems to me that, in this case, the accident was reasonably foreseeable, and the duty of care arose … Once it is determined that the duty of care arose, it is, to my mind, evident that the defendant failed to do what was reasonable to discharge that duty.”

120 Cox J, in dissent, came to the same conclusion as the trial judge, saying at 525:

“[T]he respondent was not an insurer. It is possible to look back now and see how this mishap could have been averted, but that is not the test. The respondent was not conducting a riding school. He was making horses available for a trail ride which was conducted under escort. The horse with which the appellant was provided was about 15 years old, broad backed, and exceptionally docile. She was generally given to children or beginners. The respondent was a beginner. She was also a 22 year old pharmacy student, and the respondent was entitled to assume that she would quickly develop enough skill to stay on the horse’s back unless something exceptional happened. She did so for half an hour while the group covered about a mile over variable terrain, some of it quite steep …”.

Cox J said further:

“The evidence does not suggest that any child or other beginner had ever fallen off Black Gypsy before”.

For these reasons, his Honour said that he would dismiss the appeal.

121 With due respect to the majority, their reasoning focused on foreseeability and ignored the other elements of the Wyong Shire Council v Shirt (1980) 146 CLR 40 negligence calculus (see the discussion by McHugh J in Tame v New South Wales (2002) 211 CLR 317 at 351 to 357, [96] to [108]). In 2002, the Panel appointed by the Commonwealth and State Governments to review the law of negligence found in their Final Report that this kind of approach contributed to the difficulties then being experienced in the field of public liability insurance. These concerns led to legislation such as s 5B of the Civil Liability Act 2002 (NSW).

122 The mere fact that a risk is foreseeable says nothing about whether precautions to prevent the risk materialising ought reasonably to have been taken. As was explained in Shirt, the magnitude of the risk, the degree of the probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action are factors that must be weighed in the balance.

123 It has been emphasised that our society accepts that certain recreational activities may be provided for young children, and even encouraged, albeit that they involve risks of serious injury.

124 In Agar v Hyde (2000) 201 CLR 552 Gleeson CJ said at 561, [15]:

“People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also of the public benefit of sport. Sporting activities of a kind that sometimes result in physical injury are not only permitted; they are encouraged. … ”

125 In Vairy v Wyong Shire Council (2005) 223 CLR 422 Gleeson CJ said at 426, [5]:

“Many forms of outdoor recreation involve a risk of physical injury. In some cases, while the risk of injury may be small, the consequences may be severe. Swimming is a popular recreational activity along the Australian coast. It involves certain risks, and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmers. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality may be a gross and inappropriate interference with the public’s right to enjoy healthy recreation.”

These remarks apply equally to horse riding, and horse riding by young children.

126 There are other factors that must be taken into account in a case of this kind. The following words of the High Court in Derrick v Cheung (2001) 181 ALR 301 at 305, [13] are salutary:

“Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care”.

127 The need to bear this admonition in mind is particularly important in a case where an accident causes catastrophic injuries to a young child. As Thomas J observed in Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272 at 68, 892:

“When such devastating consequences follow, there is a natural tendency to search for someone or something to blame.”

The task of the court is to apply the requisite standards of objectivity and impartiality to the issue before it.

128 In assessing whether an omission to take particular steps is to be regarded as reasonable or otherwise, the court must bear in mind that as Gleeson CJ said in Rosenberg v Percival (2001) 205 CLR 434 at 441 to 442, [16]:

“In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated”.

129 The risk of serious injury is inherent in horse riding and the younger the beginner, the greater the risk. But due regard must be had to the evidence of Mrs Smyth who explained that some children can be better balanced, can “pick things up better than a lot of adults”, and are not hampered by the same “fear factor” as some adults. Some children are better on a horse than an adult. She said that physical power is ordinarily not a factor as the horses used should be light in the mouth and properly trained, so that a mere roll of the wrist should stop the animal. It was possible, however, that a beginner would not be able to control a horse should it bolt from fright, although there was evidence that should this occur, an adult would be powerless as well.

130 Mrs Smyth’s evidence underlines the fact that absolute propositions in regard to the capacity of a young person to ride a horse may not be reliable. The requisite ultimate value judgment as to negligence requires regard to be had to the evidence tending to establish the degree of risk attendant on taking a beginner of Tali’s age on the trail ride. The degree of risk depends, in part, on the inherent natural ability of the individual concerned.

131 Mr Lloyd accepted that riding a horse involved multiple complex skills and automatic reactions, but did not agree that one could only acquire the skills necessary to undertake the trail rides offered to beginners on Otford Farm after considerable training and practice. He said he had seen many riders who rode without considerable training and practice. His evidence was to the effect that it was normal for beginners of Tali’s age to undertake trail rides.

132 Mr Neil put to Mrs Smyth in cross-examination that if children aged nearly six and eight years demonstrated that Ms Warriner had instructed them before the ride began, they would be “quite suitable to go on a trial ride”. Mrs Smyth agreed.

133 Mrs Caruana’s evidence and that of Ms Warriner was the same in this regard. I have mentioned that Mrs Caruana had ridden as long as she could remember, was on horses when she was in diapers and started at a pony club at the age of four. I have mentioned that Ms Warriner rode horses from about the age of three. I have mentioned that for some 25 years many children – including children aged from five to six years – had undertaken trail rides at Otford Farm . There is nothing to suggest that Otford Farm was not typical of the many trail-riding businesses throughout Australia.

134 Ms Bennit agreed that it was very common “for young men and women to have been brought up from very tender years to be horse riders”. The following exchange in the course of her cross-examination is relevant:

“Q. You see people who grow up in the country, say, on properties, and the like, can probably ride from the time they can walk, can’t they?

A. Yes, that’s a common thing you hear.

Q. And people like that can often be quite proficient horse riders from the age of five or so, can’t they?

A. Yes, they can.”

135 I reject the proposition that some general distinction in horse riding capacity should be made between city children of five and six years and country children of the same age. There was no evidence that supported such a distinction. I would add that defining “city” and “country” is a virtually impossible task.

136 In the course of Mrs Smyth’s cross-examination the following relevant exchange occurred:

“Q. You remember, and I think you have described in your report that shortly after leaving the homestead you go down a decline and across a creek bed, up quite a steep hill, and the ground is generally up and down until you get to that more open area where you understand the accident happened?

A. Yes.

Q. If we ask you to assume that on that section of the ride, so far as Tali is concerned, she was going pretty well according to an experienced trail ride leader, she was seated correctly in the saddle, she was holding the reins correctly, at one point she had her feet not ideally situated in the stirrup, but the trail ride leader spoke to her and she adjusted. In that situation that I have generally described to you, would you accept this; firstly, for a beginner child she has shown balance and coordination?

A. Yes.

Q. She has successfully, without incident, traversed a variety of ground conditions?

A. Yes.

Q. Including at least two creeks up to that point?

A. Yes.

Q. Including hills both up and down?

A. Yes.

Q. Including sections of narrow trail?

A. Yes.

Q. Including sections of open ground?

A. Yes.

Q. And unlike her brother, has not fallen off which is no doubt a very good sign?

A. That’s right.

Q. There is nothing about a child like that who, in your view, is unsuitable to go on a trail ride?

A. No.

Q. You agree with me?

A. Yeah.”

137 Mrs Smyth expressed the view that the way in which the trail ride was conducted was appropriate for children. The evidence of Mr Lloyd, Mrs Caruana and Ms Warriner was to the same effect and his Honour so found.

138 Mr Lloyd testified:

“You would not often see a person walk the trail leading a beginner.”

He said that it was uncommon for a guide to lead a horse, even when it was being ridden by a beginner. He said that it was more common for beginners, including young children, to ride without a lead.

139 Mr Lloyd recognised that a guide might, in the course of the ride, decide that a particular child needed to be led, and for that reason he gave Mrs Caruana a lead when they set off. Mrs Smyth was of like opinion. The judge said that Mr Lloyd’s action in providing a lead rope was a prudent precaution “having regard to what was plain, namely that there were young children proceeding on the ride”. It is implicit in these remarks that his Honour considered that this precaution was sufficient. It was not necessary for the horses to be led.

140 When Mr Lloyd was cross-examined, the position taken by the cross-examiner appears from the following passage:

“Q. And you would have expected that Kate and Brooke would have gotten each of those children, before the trail ride began, to show that they could start their horses?

A. Yes.

Q. Turn their horses?

A. Yes.

Q. Stop their horses?

A. Yes.

Q. And if Kate and Brooke made their assessments of Tali and Jared as part of the process of giving the lesson before the trail ride, and had satisfied themselves that Tali and Jared were suitable to go on the trail ride, you would have accepted and relied upon the judgment of Kate and Brooke in that regard?

A. Yes.”

141 Both Mrs Caruana and Ms Warriner kept careful and constant watch on Tali’s progress from the time the ride commenced. Neither thought that she needed to be led.

142 It was not put to Ms Warriner in cross-examination that she should have used the lead and she was not given the opportunity to justify her omission to do so. The proposition that Patch should have been led was not put to Mrs Caruana. Mrs Smyth was cross-examined on this issue without it being suggested that there was anything wrong in the judgment the two guides made.

143 Regard must be had to the nature of the trail ride. Ms Pearson-Adams was of the view that young beginners should commence riding in a more open and controlled environment (I presume in a specially designed area) but this was not the opinion of the respondents’ experts who the judge accepted. Mr Lloyd disagreed with the proposition that a trail ride with a young beginner should always be taken on flat land with a soft surface. Mrs Smyth said that the trail was typical of what one would expect and the judge found that it was suitable.

144 The ride involved four beginners under one experienced and qualified guide. It was not suggested that this was inappropriate. The horses were aged, gentle, docile and had been used for young beginners for a long time. There was no history of any hostility between them. The equipment used was found to be quite suitable and appropriate.

145 Were it to be held that, no matter the stringency of precautions taken for a beginner of Tali’s age, it would be negligent to allow that beginner to be taken on a trail ride without being led, economic and other consequences would be likely to follow.

146 A guide could not take more than two horses on a lead. It is to be inferred, from common sense, that the care that could be taken for other riders by a guide occupied in leading horses ridden by young beginners would be reduced. It is likely that, were the appellants’ argument to be upheld, two guides would be required for a group of riders that included a young beginner. If – on pain of a finding of negligence – all youthful beginners have to be led, economic and other considerations might cause prudent trail ride operators to refuse to take young beginners on trail rides.

147 Such a consequence might have far-reaching implications for the way in which young children become accustomed to horse riding, particularly in country areas. The evidence demonstrates that very many young children, presently, are allowed to go on trail rides without their horses being led, subject to other precautions being taken and to discretionary considerations applicable to the abilities manifested by each individual. Should the appellants’ contention succeed, this practice, and the social benefits that flow from it, might be affected to a substantial degree.

148 The appellants’ argument is that, on an absolute basis, a child aged 5 years 8 months is too young to be allowed to go on a trail ride – even a highly structured and properly supervised ride, such as took place when Tali was injured, and even when the “ride” is in fact a walk. A major difficulty with this proposition is determining where the line is to be drawn. When does a child become old enough to go on a trail ride of this kind, without being led? Six years? Seven? Ten? I do not think that the question can be avoided by saying that that is not a question the court is required to answer. The varying capacities of individual children (that make this question almost impossible to answer) lie at the heart of the argument that, because each child is different, it is appropriate to leave the decision to experienced and qualified guides.

149 I am not persuaded that reasonableness required the respondents to insist on Tali being led. In my view, the risk of Hiawatha biting, and Patch bolting, as he did, while not far-fetched or fanciful was remote. In my view, that risk was one that society would regard as acceptable in the light of all the precautions the respondents in fact took and the constant supervision that was being exercised over Tali at the time. In my view, the incident was a tragic accident, but not caused by negligence on the part of the respondents.

The use of judicial notice

150 The established rule is that a court may judicially notice a fact whenever it “is so generally known that every ordinary person may be reasonably presumed to be aware of it” (Holland v Jones (1917) 23 CLR 149 at 153). A judge’s life experience may cause him or her to form assumptions about certain groups of people, including young children, that are not held by all. There are great dangers in relying on assumptions about the behavioural characteristics of particular groups of people. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Callinan J said at 298 to 299; [251] to [253]:

“Judges sometimes make assumptions about current conditions and modern society as bases for their decision. Great care is required when this is done. An assumption of such a kind may be unsafe because the judge making it is necessarily making an earlier assumption that he or she is sufficiently informed, or exposed to the subject matter in question, to enable an assumption to be made about it. That is why judges prefer to, and indeed are generally required to act on evidence actually adduced, and are conservative about taking judicial notice of matters of supposed notoriety.”

151 The expert evidence as to industry practice and whether it was appropriate to take a child of Tali’s age on the trail ride that she was in fact taken on, without being led, is relevant, but not conclusive as to the issue of negligence. While expert evidence may be of assistance to a court, the ultimate value judgment and the question of negligence is for the court alone. It is to be emphasised, however, that this rule does not expand the ambit of the doctrine of judicial notice. The evaluation must be undertaken by reference to the evidence and the legal principles applicable, and must not be influenced by the judge’s personal, subjective views about the issues before the court.

152 As Beazley JA said in Coombes v RTA [2006] NSWCA 229 at [68]:

“A judge, as part of the fact finding process, is entitled and often required to make a value judgment in respect of matters of fact adduced in evidence. Such evaluation will be based on many factors, including the judge’s life experiences as an individual in society and the judge’s training and experience as a lawyer or judge. The evaluation, however, must be in respect of proved facts. A trial judge is not entitled to use personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the prescription for the use of matters of common knowledge.”

153 Bearing these strictures in mind, it is necessary to remember that horse riding is a specialised activity, even though it is an activity undertaken in this country by innumerable people, of all ages. The court must eschew any temptation to use personal knowledge about horse riding in making the requisite judgment unless that knowledge falls within the category of matters about which judicial notice may be taken.

154 The risks in riding horses are common knowledge. Certain characteristics of young children are well known to the community. But the general ability of children of Tali’s age to ride, slowly, a very well-trained, placid horse over 20 years of age, while under the supervision of an experienced, expert guide, is not. Moreover, what is in issue in this case is not that general ability alone. The Court is required to make a judgment about the ability of a particular child who had been closely observed, riding in the way described, by the guide concerned.

155 This matter should not be determined by a personal judicial opinion, based on common knowledge and experience, that differs from the opinions expressed by the experts, Mrs Smyth, Mr Lloyd, Mrs Caruana, and Ms Warriner, which Grove J accepted, having considered the evidence in accordance with orthodox judicial method and not having made any appealable error in so doing.

156 In this case, Grove J did not accept the appellants’ expert evidence, and he has not been shown to have erred in making this decision. That is enough to decide the case in the respondents’ favour. But his Honour went further. He accepted the respondents’ experts. Likewise, he has not been shown to have been wrong in doing so.

Conclusion

157 I would dismiss the appeal with costs.

158 BRYSON JA: In these reasons I address only the claim of Tali Ohlstein and, as did the judgment of Grove J. and the argument on appeal, I leave unexamined the claims of other appellants and the cross-claim for contribution and indemnity against Ms Vanessa Duncan, Tali Ohlstein’s mother. The facts and the issues appear in the judgment of Ipp JA and I will not state them fully. It was contended on appeal that the reasons given by Grove J. were inadequate in a way calling for appellate intervention. I do not examine these contentions in detail as it is not necessary for disposition to do so. I did not find his Honour’s reasons inadequate and regard them as appropriately stating the ground for decision.

159 Negligence was alleged with a complexity so bewildering as to risk defeating clarity of thought and adequate adjudication. Practically every aspect of the respondents’ activity which had any conceivable relevance was alleged to be negligent, in respects which are sometimes difficult to distinguish from each other. The disadvantages of scattershot advocacy include the risk that it will be self-defeating and involve those attempting to advocate the case in the confusion which it precipitates. An offsetting advantage was the clarity with which it revealed enthusiasm and overstatement by expert witnesses. While it was appropriate to call expert evidence to show what practices were observed in the reasonable conduct of a trail riding establishment, the ordinary knowledge and understanding of members of the community generally, including members of the Court, of the risks and uncertainties involved in riding and controlling even the most placid horses, and of the severe limits on the capacity of young children to control unexpected situations, equip the Court with all the understanding necessary to deal with Particular (t) (Red 4) “failing to individually lead Tali during the course of the Ride”, the only particular of negligence which in my view continues to require close consideration. In my opinion this is one of the many cases in which no more than common knowledge is necessary for perception of the existence of the real risk of injury and of the appropriate precautions: see Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 at 368-369 (Taylor and Owen JJ).

160 Particular (o) (Red 4) “permitting Tali, a 5 1/2 year old beginner, to go on the Ride” and Particular (t) are alternatives; if there were available means of conducting the trail ride which dealt reasonably with the risks involved it was not negligence per se to permit a five and one-half year old beginner to go on the trail ride.

161 Ordinary common understanding of life and affairs is enough to show that a horse may make sudden and unexpected movements while being ridden. The skill of riding is a learned skill and equips the rider to control the horse although the horse has a will of its own and has far more physical strength than the rider. Although it is commonplace to hear of people who have great natural skill in riding, and such people say they have ridden from very early ages, sometimes using the imagery that they were born in the saddle, all of them needed to learn to ride at some stage in their lives however early. It is also common knowledge that even a highly skilled rider may encounter injury or death through unexpected behaviour of the horse. The best of riders are thrown, and the most placid of horses become nervous, start, make sudden turns, kick or bolt. This characteristic of horses is illustrated by cross-examination of Ms Pearson-Adams an expert witness called by the appellants, by senior counsel for the respondents (Black 1/150-151):

Q. Even a bomb-proof horse, because it is a large, strong animal, can behave in an unpredictable manner; that’s right, isn’t it?
A. A horse is predictably unpredictable. There is no such thing as an unpredictable horse.

Q. Even a bomb-proof horse is predictably unpredictable?
A. Yes.

162 Any gathering of a score or so of riders will include someone with a plastered arm, a strapped shoulder, a limp or some recent experience of that kind. They all wear helmets for a reason. Mortality from horseriding was high before mortality from motoring overtook it.

163 It is also common knowledge and experience that children of the age Tali Ohlstein was at the time (and she was under six) are not physically adept, have a poor sense of danger and only a slight grasp of the concept of risk; that they do not have insights into the possible behaviour of horses and do not respond quickly or skilfully to unexpected turns of events.

164 It is also common knowledge and experience that riders who are beginners are led until they acquire the skill to control the horse, not merely when the horse is quietly doing the expected, but also to control it when the horse’s behaviour departs from the expected. Although everyone knows that people sometimes do wild rash things, in the course of reasonable behaviour beginner riders are led, either by someone on foot or by another rider. This is my understanding of ordinary reasonable conduct with respect to horses, based on experiences of life in the Australian urban world, with its ordinary interaction with rural life and horseriding, extending only to the slightest experience of doing it myself. The reasonable jury would know these things and take the same view.

165 Breach of duty of care is in my opinion to be decided in application of the law as stated in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, a classic passage in Australian law. Justice Mason said:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

166 Carrera v Honeychurch (1983) 32 SASR 511 arose on facts with some similarities to the facts of the present case, although strikingly different in the respect that the rider was an adult; she had never ridden before, took part in a group ride organised by a riding school, and lost her seat and fell off when the horse made a sudden side-stepping movement. That the rider was an adult would be significant for any assessment of the capacity of the rider to exercise control over the horse: there may have been some justification for assessing the rider as having some capacity of that kind, whereas these could not, in my view, be any justification for such an assessment in relation to Tali Ohlstein. Passages which Ipp JA has set out show that there were significant differences of judicial opinion on duty of care. My own analysis has general similarities to that of Wells J at 524 of Carrera v Honeychurch, which Ipp JA has set out; but the facts are materially different.

167 Senior counsel for the respondents referred to Murray v Haringay Arena Ltd [1951] 2 KB 529 of which counsel said that the conditions of entry as a spectator to an ice hockey match for which the parent of the child agreed informed the duty owed by the occupier to the child. There were no express terms of the contract which the child’s father made in paying for admission of himself and the child to premises as spectators of ice hockey. The ice hockey puck struck an infant spectator. Singleton LJ said at 533: “There were no express terms, and thus the liability of the defendants depends on the terms to be implied in the contract. I assume that the infant plaintiff is to be regarded as having entered into a contract with the defendants.” The implied terms referred to do not appear to have influenced decision as his Lordship said at 534: “I am not sure that it matters whether it is called negligence or breach of the implied term to take reasonable care: in either event it is for the plaintiff to establish his case.”

168 Singleton LJ referred to authorities relating to occupier’s liability, including authorities relating to sporting contests and entertainments, decided on the basis of those authorities that “The implied term is to take reasonable care …” (at 536) and further decided that negligence had not been established. That was not a decision in which the duty of care to a child was modified by the terms of an agreement made by the parent.

169 In written submissions the respondents’ counsel also referred to several decisions at first instance in Canadian Provinces relating to riding accidents none of which relate to facts closely analogous with the present case and none of which appear, in my respectful view, to establish any important principle.

170 The existence of duty of care and the question whether there was a breach are to be decided according to considerations which affect the respondents, Tali Ohlstein and the relationship between them; that relationship was not contractual, and could not be having regard to the child’s age and understanding. The terms and the circumstances of the contractual relationship between the child’s mother and the respondents do not in my opinion have any significant bearing on either the existence or on the breach of the duty of care owed to Tali Ohlstein. The child’s mother was not in a position to alter, by contract or by any other arrangement, the considerations affecting whatever it was reasonable for the respondents to do with respect to risk of injury to Tali Ohlstein. Warnings given to Ms Duncan, by the display of signs at the respondents’ premises or in other ways, could not in principle have any impact on the duty of care owed to Tali Ohlstein; nor could knowledge of risks involved in the activity which was given to Ms Duncan in any other way, or should otherwise have been obvious to her. There is no reason in principle why what Mrs Duncan accepted in the exercise of her parental responsibility should alter what was required by the respondents’ duty of care to Tali Ohlstein; the respondents could not depute any part of their duty to Ms Duncan. The display of a sign disclaiming responsibility, upon which the respondents sought to rely in a Notice of Contention, can in a similar way have no effect on their duty of care to Tali Ohlstein, who cannot have had any understanding of the sign.

171 As with many recreations including those involving skill, an element of risk of injury is part of riding, and may even be seen as one of its attractions: Jorrocks, a 19th-century novel, spoke of hunting as having all the excitement of war and only a quarter of the danger. With riding as with other recreations negligence law relates to reasonable response to foreseeable risk, not to eliminating risk. It is beyond doubt that horseriding is a reasonable activity, that it must be learnt, that children as well as adults can learn it; and that with all reasonable care an element of risk remains. Knowledge of risk has a different place in a negligence case relating to an adult rider than it has in a case relating to a young child. Common knowledge and experience make it obviously open to consideration that there was negligence in conducting a trail ride in which a child of 5 1/2 years, who had no previous experience of horseriding, rode an aged and placid saddle horse without a lead rope. Much experience shows that it was unlikely that anything would go wrong, unlikely that the child would fall or that the horse would bolt. Perception of risk may well have been blunted for persons who were very familiar with the operation and the horse, who themselves were very adept at riding and had learned in their childhood, and who had seen the operation performed without mishap many times before.

172 Was it unlikely that something would go wrong and that the child would be injured? Was it reasonably foreseeable that something would go wrong and that the child would be injured? The two questions are quite different. The test of foreseeability is undemanding. The risk that the horse would make some movement which would unseat the child was, in my judgment, quite clear, even though it was unlikely that that would happen. Once it did happen, the means to control the event available in the respondents’ system of operation were no more than that the leader would ride up to the horse and take control of it, or endeavour to do so: an uncertain exercise, and one which would not even start until there was a crisis. The entire inadequacy of this response to the risk is illustrated by the event which happened, in which the horse ran many metres and the child was dragged on the ground and suffered injury before the control took effect. As the operation was performed there was no useful available response to the risk. The means of response available were simple and obvious; the leader could have led the beginner rider, or several of them, while riding herself. This would not have eliminated the danger, but would have very greatly reduced the danger, and as a matter of probability (and not of certainty) would have meant that the sudden movement of the horse would have been brought under control much earlier than it was, and the child’s fall and injury would have been averted.

173 Particular (t) can be understood at two levels. It was an aspect of the respondents’ system of operation that a leader was equipped with and carried a lead rope with which a beginner rider could be led if some event happened during the ride and showed the leader that that was appropriate. This depended on the judgment of the leader in response to some event in the course of a ride. In this system of operation, no means were available to control a beginner’s horse, other than whatever the beginner herself might be able to do and whatever may be achieved by attempting an intervention when some untoward turn of events presented itself. I do not think it is too blunt an observation to say that the safety of the beginner was left to the horse. The shortcoming of the system of operation is manifest.

174 The other level at which Particular (t) can be understood relates to negligence of leaders of trail rides in making the judgment which the respondents’ system of operation left to them about whether and when it was appropriate to use the lead rope which they carried. The leaders Mrs Caruana and Ms Warriner operated within the respondents’ system of operation, in which they were not to intervene and use the lead rope unless in the leader’s judgment it was appropriate to do so; as a practical matter, unless some event precipitated decision. There was no event affecting Tali Ohlstein which could precipitate such a decision before the horse shied and galloped off in an uncontrolled fashion: there was one for Jared, who was not placed on a lead. When the conduct of the leaders is examined for acts or omissions of negligence in the course of their conduct of the trail ride nothing appears which calls for consideration. They conformed to their employers’ system of operation. The leader attempted to control Tali Ohlstein’s horse in response to the adverse situation when it arose, again in conformity with the employers’ system of operation, in a situation where the availability of a lead rope could no longer contribute anything. I do not find it surprising, or important at all, that there was no cross examination charging either of the leaders with any act or omission of negligence in their conduct of events during the ride; I see no reason to think that a challenge of that kind could have had any substance. They accepted and operated within their employers’ system of operation and appear to have regarded that as appropriate; the leaders cannot in my opinion be regarded as having been in breach of a duty of care.

175 The leaders were very well qualified, in experience and otherwise, for leading a trail ride; both had learned riding in childhood, one from the age of four and one from the age of five. There were no shortcomings in their experience or suitability for the work. They took care to choose appropriate horses and to fit each rider with the appropriate equipment; they also gave appropriate instruction, within the severe limits imposed by the business in hand. Ms Warriner made a careful selection of horses; with good reasons based on experience and knowledge of the horse she regarded Patch as a very safe horse. Ms Warriner gave careful instruction to the beginners including Tali, and gave Tali a second lesson. Although no doubt these preparations were carried out with skill and care and in a responsible way they cannot have done anything to equip a beginner child under six years of age to cope with a horse which became unruly; they cannot have done anything which made it reasonable to rely on the child’s ability to do so.

176 Mr Lloyd had even more experience, 20 years involvement in activities at Otford Farm of which 17 years were full-time; he was engaged in the management of the business, and he had no experience of any injury to a person taking part in trail rides or other activities on Otford Farm . Mr Lloyd said in evidence that before Mrs Caruana left on the ride he asked her to take a lead rope, and gave this reason (Black 2/335) “I asked her to take a lead rope because the group was a mixed group, approximately half riders and half beginners. I sent the two guides so that they could split if necessary.” There was a policy for use of lead ropes on the trail in relation to young beginner riders, in which it was in the discretion of the leader to use a lead rope held by a trail ride leader connected to the child’s horse (Black 2/351). He gave several possible uses for the lead rope as well as leading a rider (Black 2/361). He said (Black 2/352):

Q. And in your mind what factors would you expect a trail ride leader to take into account in deciding whether or not to use a lead?
A. There would a number of factors depending on the size of the group, the riding ability of the group, whether they were all the same or whether it was a mixed group. It would also depend on whether the adult, whether there were other adults in the group that could lead their own children.

177 Mr Lloyd gave this evidence (Black 2/357-358):

Q. Are you saying that a young child beginner only needs the first five minutes to be able to develop those attributes?
A. I’m saying we can observe in five minutes how somebody is sitting and controlling the horse.

178 The ability of a child, assessed in five minutes, to control the horse in ordinary favourable circumstances is one thing; the ability to bring under control a horse which has begun to bolt or otherwise behave unexpectedly is quite another. In this passage Mr Lloyd made a claim of ability which is not entitled to acceptance, or to respect. Rather than treating this passage as assisting his case, I regard it as showing that his percipience of risk had been blunted by the absence of adverse outcomes from his own experience.

179 Mr Lloyd’s evidence on the use of the lead rope also included this passage (Black 2/352):

Q. So all of those aspects would require assessment out on the trail, is that the position?
A. Often I have a parent who wishes to lead their own child and start with a lead rope at the start of the trail.

Q. And that is something that the parent raises with you?
A. Or we suggest to them.

Q. Now, when you suggest that to a parent, why is that?
A. In the first instance we ask the parent if they would like to lead their child on a pony in an enclosed area. If the parent decides that they are after a trail ride and we don’t think the child is capable of fully understanding instructions or is a little nervous or hesitant, then the parent is offered a lead rope to lead their child if the parent is capable of doing so.

180 This passage should be understood with his earlier evidence (Black 2/335-336):

Q. Did you watch the group leave for any length of time?
A. Yes.

Q. What did you do?
A. I observed the start of the ride. I actually led Tali’s horse out the gate and let go of Tali’s horse and then observed them ride off.

Q. Why did you lead Tali’s horse out the gate?
A. Often we need to lead one horse out of the gate just so the others will follow.

Q. When you led it out of the gates and let it go did you watch her at all?
A. Yes.

Q. How was she coping?
A. She was steering the horse and sitting correctly.

181 This seems to show that the system of operation was that Mr Lloyd made a judgment about whether a child should be led on the basis of his observations within five minutes of how a child was sitting and controlling the horse. The judgment was made by Mr Lloyd and not by Mrs Caruana or Ms Warriner.

182 Mrs Caruana’s view of when a lead rope should be used was (Black 2/244):

Q. Was that a common experience for you prior to April 1998?
A. Not every child had to be on a lead. Either the mother asked for it or if they were under a certain age they had to be led, or sometimes at the pony club camps if they weren’t confident enough or they couldn’t control their horse or didn’t know how to turn him or pull him up or something, then we’d put a lead on.

183 The system had, in all practicality, no means available to deal with the event that had happened, in which Patch moved to the side, Tali Ohlstein lost her balance, the horse ran off, Tali fell from the horse with her foot in the stirrup and was dragged for more than 100m, and suffered injury through falling, losing her helmet, being dragged by her leg and being struck by the horse’s legs. The foreseeability of an event of this kind was altogether clear, and no response was available which could deal with it in any effective way. The absence of actual adverse experience in which this risk matured at Otford Farm appears to me to have little significance in the circumstance that the risk was clearly foreseeable in the application of the undemanding test of foreseeability, the injuries which could be sustained if the risk matured include extremely severe injuries, exemplified by what happened the present case, and the measures required by a reasonable response to the risk were simple, were readily to hand and involved no great difficulty or discernible expense: albeit that they would not entirely eliminate the risk. A system of operation which has been followed for many years without mishap, under the control of well-qualified persons, may yet be negligent. In the absence of actual experience of a risk maturing, competent persons acting (as it were) in their own environment in an operation with which they are very familiar and have often carried out with success, may be less able to perceive a risk of injury which to an outside observer is clearly foreseeable. Practice in the relevant industry or profession is relevant to negligence, and is not conclusive. Decision is for the Court. See Rosenberg v Percival (2001) 205 CLR 434 at 439 [6]-[7] Gleeson CJ and at 453-455 [62]-[63] Gummow J. See too Rogers v Whitaker (1992) 175 CLR 479 at 487. Compare Edward Wong Finance Co Ltd v Johnson Stokes & Master (a firm) [1984] AC 296 where a practice which had been virtually universal among lawyers in Hong Kong throughout living memory was held by the Privy Council to be negligent: see their Lordships’ judgment delivered by Lord Brightman at 304B-308H especially 308G-H.

184 The appellants called the evidence of Ms Sandra Pearson-Adams. Ms Pearson-Adams is as well qualified to deal with safety in horse riding as a person could well be; her life has been devoted to equestrian concerns, and has included training horses and students and conducting equestrian training centres for over 30 years, Fellowship of the British Horse Society, participation in equestrian training in many ways and at high levels, production of texts and manuals, and education. In her report (Blue 21-99) she expressed clear views, in very firm terms, about the management of beginners on trail rides and said (Blue 23):

Beginner riders should only be included in an outdoor ride if they are ‘on the lead rein’ – this means that an experienced horse handler/rider will lead the horse/pony of the beginner so that they are always able to control the animal. The leader may be un-mounted, walking beside the rider, or mounted – if the latter case then this must only be on a suitable trained and appropriately sized/stride length animal.

185 Ms Pearson-Adams went on to say in her report that after several hours, as beginners develop some experience, skills and confidence, they may be allowed to ride off the lead for short periods. Ms Pearson-Adams reviewed and expressed opinions on what for practical purposes were all aspects of the conduct of trail riding for beginners at Otford Farm . She stated the view that a number of essential equipment items were not in use on the day of the accident. She gave grounds for an assumption that the stirrups in use were too small for Tali Ohlstein, that the helmet’s coming off was more than likely due to the helmet’s not having been fitted correctly, that Jared Ohlstein may not have understood the instructions, that the selection of horses and checking and adjustment of equipment were rudimentary, perfunctory and inadequate, that the horses selected proved to be inappropriate and difficult for Tali Ohlstein and Jared Ohlstein to control. She expressed adverse views on the route selected for the ride, on the disposition of the leaders among the riders, on the response after Jared Ohlstein fell off his horse; and on many matters. At many points in her report she recurred to expressions of the view that Tali and Jared because of their age and inexperience should not have participated in the trail ride without a lead rope. In the course of her supplementary report, which was directed to a report by Ms Debbie Smyth and to other material produced by the respondents, she said (Blue 95) “no reputable Equestrian Establishment will allow riders to join the trail ride until they are convinced that they can control their mounts.” Her view that a child of Tali’s age should not have participated in the trail ride without a lead rope is quite clear and the basis for this view in the need to know that the rider can control the mount, though less frequently reiterated, is also clear.

186 Ms Pearson-Adams’ evidence in cross-examination again directed attention to the more important matter (Black 1/138):

Q. Well, your main thesis, Ms Pearson-Adams, is that nobody should be allowed out on the trail of the type that Otford Farm has unless they have had a number of horse riding lessons in a paddock; that’s right, isn’t it?
A. No, I didn’t say that at all. I said that no-one should be allowed out without being on a leading rein and no-one should be allowed out unless they have shown they are capable of controlling the animal that they are riding. That’s not a number of lessons in specific.

187 Cross-examination explored the practicality of conducting trail rides with a number of inexperienced persons.

188 Expressing views on Ms Pearson-Adams’ evidence, the Trial Judge in the context of Particular (o) said (Judgment [62]-[63] Red 96-97):

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

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

189 When dealing with Particular (t) the Trial Judge said (Judgment [76] Red 99):

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

190 It appears from Judgment [76] that the Trial Judge was of the view that it was reasonable to await some indication, in the circumstances of a particular ride, that Tali Ohlstein’s horse should have been put on a lead, before using a lead rope. This conclusion can be recast in the form that unless some indication manifests itself during a ride that there is or may be a difficulty in the rider’s controlling the horse, no control by the leader is reasonably necessary. I regard this analysis as erroneous because the inexperienced child rider’s difficulty in controlling the horse if there is some untoward event is altogether clear whether or not any indication of the need to put the horse on a lead has manifested itself on the particular occasion. The manifestation of the need for intervention could take many forms, and the risk that it might take a catastrophic form was clearly foreseeable at the beginning of the ride.

191 The Trial Judge did not refer to Ms Pearson-Adams’ evidence when dealing with Particular (t). However his Honour’s observations relating to Particular (o) assist understanding of his Honour’s view of Particular (t). It must be said that the Trial Judge’s impression that Ms Pearson-Adams engaged in a search for whatever she could to criticise about Otford Farm ’s operation is an impression which would be formed readily on the basis of her report and her evidence. Ms Pearson-Adams spoke from a position of eminence in equestrian affairs and expressed adverse views on so wide a range of matters that the central concern, which she expressed clearly in the opening passages of her report, did not receive appropriate attention. The consideration that there must always be means available to control the horse, and that a lead rope is the appropriate means for beginner riders seems to have passed from the Trial Judge’s attention because Ms Pearson-Adams injured the force of her expert evidence and the importance of this consideration by the accompanying maze of criticisms which could not be shown to be important, and in many cases could not be substantiated. The Trial Judge referred (Judgment [63] Red 97) to the practical burden on the operation of requiring that any beginner should only be taken on trail rides attached to a lead, and referred to this as an unrealistic impediment to the reasonable conduct of the operator and at [76] referred only to the lack of untoward indications until the horse Hiawatha bit out at Patch. In so finding the Trial Judge in effect upheld a statement in evidence by Mr Lloyd (Black 2/362):

Q. I’m suggesting that before children go out on a trail they should demonstrate a capacity to ride, this is beginner children, the horse in an enclosed area with definite boundaries for the horse such as fencing?
A. In an ideal world that would be great if children would have a set of lessons before they rode, along with adults who were beginners, where there was no constraints on time and money.

192 This position had been advocated by the respondents’ senior counsel, on grounds he had sought to lay in cross-examination of Ms Pearson-Adams. The need for and the lack of means to control unexpected behaviour of the horse did not receive his Honour’s express consideration.

193 Ms Pearson-Adams clearly failed to make a favourable impression on the Trial Judge or to persuade his Honour’s mind to a relevant part of her views. It is understandable that her evidence was not found to be impressive; but this is not a ground upon which his Honour should have rejected Particular (t), the force of which depended little if at all on its being expressed in expert evidence.

194 The appellants also called the evidence of Ms Diane Bennit, an equestrian consultant. Ms Bennit’s life and career have put her in a position of high expertise in equestrian affairs. She owned and ran Springfield Riding School, one of the biggest riding schools in Western Australia for 40 years until 2001. She has held significant positions including Chief Instructor of apprentice jockey schools for the Western Australian Turf Club and Chief Instructor of the Western Australian Department of Alternative Education Horse Training Course. She has many significant qualifications as equestrian coach and related qualifications; she has represented Western Australia in showjumping and dressage and has held a number of important positions in associations concerned with equestrian affairs; she has been a member of the showjumping Ring Council of the Royal Agricultural Society of Western Australia, National Chairperson of Australian Horse Riding Centres and a Director of the Australian Horse Industry Council. She has instructed at riding schools, pony clubs and adult riding clubs and has trained, assessed and examined training instructors and trail ride leaders. She has a wealth of relevant experience. In her report she gave support at length for her opinion, expressed as follows (Blue 100):

Opinion

I believe Tali Ohlstein and Jarred Ohlstein should never have been placed in such a dangerous situation, Tali Ohlstein’s subsequent fall from the horse and ensuing injuries were entirely preventable.

My opinion is based on the following:

Successful control of a horse requires instruction in learning how to achieve basic control of the horse, developing these skills, practice and some degree of strength. There was insufficient explanation, demonstration, instruction and time to practice given to Tali and Jarred and ride was conducted in an unsafe manner. Members of the Australian Horse Riding Centres recommend against taking children under 8 years on trail rides unless they are led by an experience Trail Leader.

195 Ms Bennit reviewed information available to her relating to the helmets and footwear available, instructions and information provided to Ms Vanessa Duncan, the gear check, the route of the trail ride and the supervision of the trail ride. She expressed adverse views on many aspects of the conduct of the trail ride; indeed, practically every aspect which she mentioned attracted some adverse expression. Her expression of opinion included the following (Blue 105 B-G):

e. Whether the accidents and injuries were [foreseeable].

Many things can contribute to a fall from a horse. However, injury to a young beginner child from a fall on an unsuitable horse, unrestrained in an open area, on unsuitable ground, is entirely [foreseeable]. Injury to a young beginner child is foreseeable if only one of these risk factors is present. The risks can be greatly reduced by using well known measures such as experienced staff, sufficient pre-ride instruction, practice and placing children on the lead. I believe both accidents could have been prevented by taking some or all of the above mentioned measures.

196 Ms Bennit dealt with Jared’s fall from the horse as well as with the injury to Tali Ohlstein. She set out a number of passages from a code referred to as AHIC Code of Practice which became effective in July 2003, later than the events. One of these was (Blue 106):

5.6.5.4.5 Participants must demonstrate an ability to control their horse before they can commence a trail ride

Notwithstanding that the Code of Practice to which she referred came into effect at a later time, it is plain that it was Ms Bennit’s view that what it requires should have been complied with. In evidence she said (Black 1/181) “I think the code of practice, which came in around 2003, was mainly just setting things down which had been done in the industry for a number of years”.

197 In her report, and in her supplementary report of 10 December 2004 (Blue 130-131) Ms Bennit expressed many views adverse to the respondents, and it is plain that her references to the importance of capacity of the rider to control the horse did not claim attention in the Trial Judge’s consideration of her evidence. Cross-examination of Ms Bennit dealt with a number of criticisms she expressed. Cross-examination established her agreement that it would be unrealistic to expect of customers generally coming off the street that as a general rule they should undertake three to six lessons before they have a trail ride, or to expect persons who have had such a course of lessons to be led if they are to go on a trail ride (Black 187-188). She also accepted (in a passage which I regard as stating the obvious) one of the inherent risks of horse riding (Black 1/188):

Q. The risk of falling from a horse is an everpresent risk, is it not?
A. Yes.

Q. And it is what people with your qualifications would refer to as an inherent risk, that’s right, isn’t it?
A. Yes.

Q. Meaning that you can take measures to avoid it or its severity but you cannot eliminate it entirely?
A. No.

Q. You are agreeing with me, aren’t you?
A. Yes, I am.

Q. The risk of falling from a horse involves the risk of serious injury, does it not?
A. Yes.

Q. Depending on the circumstances?
A. Yes.

198 Cross-examination included the following passage (Black 1/189):

Q. It is probably easier to ready a normal adult for a trail ride than a child; is that right?
A. I don’t think so if you’re giving them the basic understanding of how to control the horse.

Q. The child can pick it up just as well as an adult, are you telling me?
A. They should be able to understand it.

Q. And even a quite young child should be able to understand it, is that right?
A. Should be able to understand it, yes.

Q. I suppose a lot depends upon the disposition of the individual; is that fair to say in your experience?
A. If you have got someone who was very nervous, they mightn’t take it in all that well.

199 Related to this passage is the following (Black 1/192):

Q. And even with a beginner, walking a horse, that inherent risk of falling is everpresent, is it not?
A. It is everpresent with any level of rider.

200 Cross-examination also included the following passage (Black 1/194):

Q. If you accept that the horses are trained horses and are suitable for beginners, is it fair to say that circumstances can arise where even a well trained horse may move suddenly in one direction or another because something has happened?
A. Possibly, yes.

Q. If that were to happen, then it is possible that a beginner rider might lose his or her balance; is that right?
A. Yes.

Q. And that might happen whether you are a child or whether you are a teenager or whether you are an adult, is that right, if you are a beginner?
A. It would be less likely to happen with an adult or depending on what you call teenager. It is more likely that a child would be dislodged.

201 Cross-examination did not challenge Ms Bennit’s references, in expressing her opinion, to the relation between successful control of the horse and instruction and learning how to achieve basic control, developing skills, practice and some degree of strength; and her reference to the need for ability to control the horse before a participant commences a trail ride.

202 The Trial Judge, after expressing in relation to Ms Pearson-Adams the view that her opinion describes an unrealistic impediment to the reasonable conduct to be expected of the operator of a recreational trail ride, went on to say of the evidence of Ms Bennit (Judgment [64] Red 97):

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

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

203 Later the Trial Judge said (Judgment [93] Red 102) that Ms Bennit “… manifested a leaning towards fault finding in the defendant.”

204 It will be seen that, as with Ms Pearson-Adams, Ms Bennit’s evidence was not the subject of detailed consideration by the Trial Judge, and that his Honour was of the view that overall her opinions if followed would unrealistically impede reasonable conduct by the operator of a trail ride. As a general conclusion my understanding accords with that of his Honour; these two witnesses, with life-long high expertise and high positions in equestrian affairs, can readily be interpreted as giving unrealistic counsels of something near perfection. Unfortunately, in their array of criticisms which the Trial Judge regarded as excessive, their evidence did not succeed in directing attention to what, in my judgment, is the central concern.

205 The respondents called the evidence of Mrs Debbie Louise Smyth, a horsewoman with much experience, a successful career in which she has won many champion lady rider awards, with long experience in horse management skills, who grew up on a horse breeding stud property and from her earliest years had experience of horse breaking, training, showing and riding schools. In her report Mrs Smyth dealt at length with the conduct of the respondents’ operation including the trail rides, dealing with respects in which criticisms had been made in the appellants’ case. She dealt in detail with many aspects in respect in which criticisms were offered, and expressed the view that the respondent Mr Lloyd did all he could do to prevent the accident. It could be said that Mrs Smyth’s views prevailed in the Trial Judge’s finding, in almost all respects understandably so, so as not to be the subject of any challenge on appeal. She dealt with the practicalities of organising operations such as those conducted by the respondents. She did not however in the report deal with the general proposition with which Ms Pearson-Adams’ report opened, which I cited earlier, or with the overall general importance of ability to control the horse. Mrs Smyth said (Blue 214):

… Mr Lloyd and his staff do as much as possible to prevent ‘falls’ and only allow beginner riders to walk the horses on the trail rides, and in most cases they don’t have any problems. The beginner riders enjoy the freedom of riding a horse at a walk through the scenic rainforest.

She also said (Blue 215):

Mr Lloyd informed me that it is standard practice for the guides to take a lead rein with them on a beginners ride. The lead rein is either clipped onto their saddle or placed in a saddlebag. However, Mrs Ohlstein did not want her children to be lead on the trail ride.

206 In my understanding, it was Mrs Smyth’s view that the child’s mother’s wishes that the children should not be led dealt completely with the question whether the children should have been led. In my opinion this is plainly not an adequate disposition of the question whether the respondents should have had a system of operation in which beginner children were not led while on a trail ride. Whether or not it is the case that the children’s mother did not want them to be led on the trail ride was a contentious matter of fact; the judgment did not include any findings establishing that she did not wish the children to be led. This is not a subject which the wishes of the child’s mother should reasonably have been treated as controlling. Mrs Smyth expressed general endorsement of the manner in which the respondents conduct their trail ride operation.

207 In commenting on Ms Bennit’s report Mrs Smyth said (Blue 256S-T):

I agree that successful control of a horse requires instruction in learning how to achieve basic control of the horse, developing these skills, practice and some degree of strength.

She also said (Blue 259):

Even the quietest horses can act in an unpredictable manner at times and divert from its’ training if it is ‘spooked’ or given a fright.

She also said (Blue 262): “a fall from a horse cannot always be prevented”, and set out a passage from a Sample Horse Riding Agreement form, which states the risks of personal injury and the risks arising from the nature of horses with great clarity.

208 It fell to these expert witnesses to spell out the primary consideration about safety in horse riding which would, in my opinion, be part of the stock of common knowledge available to judges, jurors and generally to persons on whom the duty of finding of facts might fall, without dependence on their expertise.

209 Particular (t) can be restated as an allegation that the reasonable response of the operator of a trail ride to the perceived risk of injury to Tali Ohlstein through a fall from the horse, as she as a beginner rode in a trail ride on the first occasion on which she had ridden at all, is the simple measure of leading the beginner. The learned Trial Judge did not examine this allegation closely, and in his reference to it did little more than to reject it, for reasons which, on a fair understanding of the judgment, were associated with the view that it was an unrealistic impediment to the reasonable conduct to be expected of the operator. In my respectful view the learned Trial Judge was entirely wrong to reject the allegation on this ground; upon the evidence, the risk was extremely plain, the means available to deal with it involved no expense or difficulty and required very little attention at all; that is, the lead ropes which were available could have been used, as a matter of routine, to lead beginner riders rather than being kept available to be used to lead beginner riders in response to some untoward event or other occasion. While I am mindful that a finding on the reasonable response to risk by a primary judge is entitled to respect and is not readily set aside, I am of the view that the erroneous nature of the Trial Judge’s conclusion is very clear. Accompanied as it was by a large number of relatively less substantial allegations which I have no doubt the Trial Judge was correct to reject, the force of this important allegation does not seem to have presented itself for consideration. The disappearance of almost all other particulars of negligence, in large part as a result of the Trial Judge’s consideration of them, has given the Court of Appeal an advantage which his Honour did not enjoy.

210 My conclusion on Particular (o) is the same as that of the Trial Judge: the contention that a child of Tali Ohlstein’s age should not have been taken on a trail ride at all without first having had a number of lessons imposes an undue and impractical burden of the conduct of the respondent’s business of providing trail rides. The ready availability of means of controlling a horse ridden by the beginner rider by using a lead rope forms part of my reasons for reaching this conclusion.

211 Judicial observations relating to acceptance of risk in recreational activities have no application to the circumstances of the present case. Knowledge of or acceptance of risks associated with the activity cannot be attributed to Tali Ohlstein.

212 It should not in my view be said that the Trial Judge gave inadequate reasons for his decision not to uphold the allegation in Particular (t): his Honour’s reasons appear to me to be expressed with clarity, but it is my respectful opinion that the reasons reveal error.

213 In my opinion the Trial Judge was correct in his rejection of the passage in Dr George Williams’ report to the effect that Dr Williams did not believe that any child can take reasonable care for the child’s own safety on the back of a horse. If this passage should be understood as an expression of opinion about safety in riding it is too general to have any evidentiary value; and in any event no relevant expertise of Dr Williams appears from evidence.

214 In my opinion the Court of Appeal should allow the appeal with costs, and should determine that Tali Ohlstein’s injury was caused by negligence of the respondents in conducting their operation in the respect alleged in Particular (t). The verdict judgment and costs order of Grove J. should be set aside and the proceedings should be remitted to the Common Law Division to be further heard and determined having regard to this decision. The Common Law Division should proceed to determine the remaining issues. It remains for the Common Law Division to decide questions of costs in that Division, including costs of the first trial.

**********

LAST UPDATED: 15/12/2006

Alcohol Related

Ms Cole and the alcohol
Author: Tom Young and Michelle Russell  of  Deacons

Queensland’s Chevron Hotel case stretches the duty of care owed by publicans to their drunken patrons so far that publicans must ensure that patrons have a safe journey home. The practicalities involved in adhering to this duty make it onerous and very difficult to manage. In New South Wales however, publicans and bar tenders can loosen their belts for a while after the recent NSW Court decision in Cole’s Case promises to make drunken patrons more responsible for themselves. If a person sets out to get drunk on NSW licensed premises, it is no longer the publican’s fault if that person is injured on his or her way home. An application to appeal the NSW court decision is currently before the High Court. If the High Court refuses the appeal, publicans in Queensland may get the same break.

The duty of care in Queensland

The 1997 Chevron Hotel case sent a shockwave through the Queensland liquor industry when a Surfers Paradise hotel had to pay $125,000 damages to a heavy drinking regular who was hit by a car while waiting at a bus stop across the highway from the hotel. The judge held that due to a combination of circumstances where the hotel staff continued serving their drunken patron while knowing that he would have to cross a busy highway to catch a bus home, plus the staff’s failure to provide him with a safer alternative means of transport, the hotel had negligently contributed to the dangerous situation that caused the patron’s injuries.

According to Chevron Hotel, a publican is not automatically liable for getting a patron drunk. However, liability will arise if a publican continues to serve a drunken patron alcohol to the point where that patron has lost self control and the publican knows, or should know, that without intervention the patron may be placed in a dangerous situation such as being injured while catching the bus home.

So long as Chevron Hotel remains the high water mark for Queensland law, the best publicans can do is to make sure their staff are fully aware of their duties in relation to the responsible serving of alcohol. But in the meantime, there is promise that this law may be reviewed due to a similar case in NSW.

What happened to Ms Cole in NSW?

The facts of the case involve a drunken binge by the plaintiff, Ms Cole, and her friend. They both began drinking free Spumante at a ‘champagne breakfast’ being held by the South Tweed Heads Rugby League Club on 26 June 1994. After the free Spumante ran out, they started buying their own. Four hours later, Ms Cole’s friend left the Club but Ms Cole stayed on until well after five. Although the Club staff refused to serve her alcohol from about 2pm on, by the time Ms Cole left in the evening, she was very drunk.

To cut a long story short, after seeing Ms Cole staggering, slurring her speech and “grabbing men”, the Club Manager tried to make her leave by offering her a taxi ride or the club courtesy bus home. Instead of accepting the ride, Ms Cole verbally abused the Manager then joined a group of patrons who said they would ‘take care’ of her. A short time later, the Manager noticed that Ms Cole and the group had left the Club.

At about 6:20pm that evening, Ms Cole was run over by a 4-wheel drive as she walked along a dimly lit road not too far from the Club.

The NSW court cases

The first judge to hear this matter referred to the duty of care established in Chevron Hotel but set the duty even higher. The judge held that the South Tweed Heads Rugby League Club owed a duty of care not to serve a patron who was already intoxicated or likely to become so. Although the Club Manager attempted to ensure Ms Cole a safe ride home, the judge said the Manager did not try hard enough and found the Club liable for 30% of Ms Cole’s injuries. The Club successfully appealed against this harsh judgement in July 2002 to the delight of the NSW liquor industry.

The NSW Court of Appeal essentially rejected the first judge’s decision and in contrast, lowered the point at which a publican owes its patron a duty of care to below the standard set by Chevron Hotel. The Court held that a publican does not owe a duty of care to prevent a patron becoming intoxicated and except for “extraordinary situations”, publicans do not owe a duty of care to a person who deliberately and voluntarily sets out to get drunk. The Court held that Ms Cole was owed no duty by the Club.

Of particular interest in Cole’s Case is the court’s recognition of the practical difficulties imposed on a publican in complying with an extended duty of care. The court acknowledged that such duties give rise to an ‘infinite variety’ of problems including the following:

  • How can a publican discern whether each individual patron is intoxicated or not so that the publican will know when to discontinue serving alcohol?
  • How can a publican police an intoxicated person’s consumption of alcohol when another (more sober) person might continue to supply the intoxicated person with alcohol?
  • What is to be done when a publican notices that a patron is intoxicated? Ejecting the person from the premises means placing that person in danger and, if the patron refuses an offer of safe transport, what further action should the publican take to force a patron to take the offer?
  • What if an intoxicated patron indicates that he or she wishes to indulge in some sexual activity with persons who look as if they may take advantage of the vulnerability of the patron concerned? Does the publican have a duty to intervene?

    The court made it clear that any law imposing puzzling and uncertain duties of care on persons going about their ordinary daily life contradicts community values, commonsense and the law’s purpose of keeping good order.

    The impact of Cole’s Case upon Queensland law will be determined in April 2003 when the High Court of Australia considers whether to hear an appeal lodged by Ms Cole against this decision.

    What a High Court appeal could mean to your business

    If the High Court hears and rejects Ms Cole’s appeal, then the High Court will have reinforced the decision made by the NSW Court of Appeal. Due to the hierarchy system that operates between the courts, the High Court’s decision on Cole’s Case would then cover all Australian cases on the matter instead of being only applicable to NSW law.

    Legally speaking, such a decision represents the law’s reversion to imposing only occupier liability standards on publicans. This was the legal position before Chevron Hotel. Practically speaking, the responsibility of a Queensland publican in serving alcohol would be owed only to those persons remaining on the licensed premises.

    Queensland publicans will be able to sleep easier knowing their liability for drunken patrons would be reduced to that currently enjoyed by NSW publicans. What this could mean to your business is lower insurance premiums, less damages payouts and probably more money for you.

    However, until the High Court decides Cole’s Case, Queensland hoteliers must continue to observe a particularly onerous duty of care to its patrons. If one of your patrons becomes intoxicated at your licensed premises, you must take care to do everything reasonably possible to ensure that patron gets home safely.
    February, 2003

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