Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 Hearing dates: 1 July 2022 Date of orders: 23 September 2022 Decision date: 23 September 2022 Before: White JA at [1] Brereton JA at [2] Kirk JA at [3] Decision: (1) Appeal dismissed with costs. (2) The parties have liberty to apply within 28 days in order to resolve any issue as to the final sum payable to the respondent. Catchwords: NEGLIGENCE — Causation — Increased risk of harm — Necessity of showing that the risk "came home" or eventuated EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether opinion of experienced horse trainer and breeder without tertiary qualifications based on specialised knowledge — Eccentric expressions used in report — Expert not required to engage in line-drawing exercise APPEALS — From finding of fact — Function of appellate court — Credibility findings — Advantages of trial judge — Impressions formed by seeing and hearing witness not limited to observed demeanour Legislation Cited: Civil Liability Act 2002 (NSW), s 3B(1)(f) Evidence Act 1995 (NSW), s 79 Workers Compensation Act 1987 (NSW), s 151E(1) Cases Cited: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 McCormick v Mt Pleasant Stud Farm Pty Ltd [2021] NSWDC 415 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Roads and Traffic Authority v Royal (2008) 82 ALJR 870; [2008] HCA 19 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380 White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 Category: Principal judgment Parties: Mt Pleasant Stud Farm Pty Ltd (Appellant) Sean McCormick (Respondent) Representation: Counsel: L King SC and T Berberian (Appellant) A J Stone SC and S L Warren (Respondent) Solicitors: HWL Ebsworth (Appellant) Lough & Wells Lawyers (Respondent) File Number(s): 2021/00275201 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: McCormick v Mt Pleasant Stud Farm Pty Ltd (No.2) [2021] NSWDC 489 Date of Decision: 17 September 2021 Before: Sidis ADCJ File Number(s): 2021/00015061 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The appellant operates a stud farm. The appellant employed the respondent, Mr McCormick, as a trainer. On 29 December 2014, while breaking-in a two-year old mare with the assistance of another employee, Mr McCormick was injured when the horse reared and threw him to the ground. Mr McCormick suffered injuries to his back, neck and shoulder, and sued the appellant in negligence in the District Court. Mr McCormick contended that on several occasions he had informed the appellant's owner and director, Mr Hamilton, that the assistant whom he had available to him to assist in the breaking-in process was not suited to the task on account of her slight stature. The primary judge found that the appellant was in breach of its duty of care to Mr McCormick in failing to consider adequately the risk to Mr McCormick in providing him with an assistant who was not capable of controlling the horse. Her Honour found that the appellant's breach of its duty of care was the cause of Mr McCormick's injuries. On appeal, the appellant contended that the primary judge erred: (1) in admitting or placing any weight on an expert report prepared by Mr Matthews which was tendered by Mr McCormick; (2) in making certain findings of fact; (3) in finding that the appellant breached its duty of care; and (4) in finding causation in the absence of evidence establishing that Mr McCormick's accident would have been avoided by providing him with another assistant. The Court (per Kirk JA, Brereton and White JJA agreeing) dismissed the appeal with costs and held: 1. Mr Matthews' vocational experience was extensive and provided good reason to think that he had specialised knowledge of horse behaviour and training, along with the appropriate attributes of people involved in the breaking-in of horses: at [31]. Notwithstanding some eccentricities of expression, his report was based on that knowledge: [30]-[33]. As to weight, the report did not play a significant role in her Honour's findings and it is far from evident that the appellant's challenges to the report would lead to any different result: at [47]. In any event, the challenges are not well founded: at [49]-[53]. Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, applied. 2. Some of the factual findings challenged relate to specific facts where there was conflicting evidence of Mr McCormick and Mr Hamilton where principles of appellate restraint are properly applicable. The impressions formed by seeing and hearing a witness are not limited to impressions of demeanour in some narrow sense of what is observed. What is heard, and the context of the evidence, is also important. For example, the tone in which evidence was given may be important: at [58]-[59]. In any event, having regard to all the evidence the credit findings against Mr Hamilton are justified, and the factual challenges were not made out: at [61]-[63]. Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, applied. 3. The challenge to the finding of breach was premised on the challenges to the primary judge's findings of fact and so must also fail: at [66]. 4. It has regularly been held that merely establishing an increased risk of injury caused by negligence is not enough, by itself, to establish causation. It is necessary in such cases to show that the risk "came home" (ie eventuated) in the sense that the defendant's breach is established to have played at least a materially contributing role in the injury occurring: at [83]. If the primary judge meant to suggest that merely establishing an increase in risk would suffice to make out causation, her statements to that effect were erroneous: at [86]. Yet what her Honour ultimately concluded was that the appellant's breach of duty of care materially increased the risk of injury to Mr McCormick and that the risks involved in the weight testing process eventuated. The conclusion that the appellant's breach materially contributed to the injuries was supported by the facts: at [87]. Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29; TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380, discussed. Judgment 1. WHITE JA: I have had the considerable advantage of reading in draft the reasons for judgment of Kirk JA. I agree with his Honour's reasons and the orders he proposes. 2. BRERETON JA: I agree with Kirk JA. 3. KIRK JA: On 29 December 2014 Sean McCormick was breaking-in a two-year old mare named Margot. He was experienced in the task, having by that point broken in about 500 horses over the course of his career and assisted in the breaking-in of many more. 4. On that day he was assisted by Melanie Bolwell. The pair were taking a step in the process of breaking-in called "weight testing". Margot had been saddled and was being held on a lead by Ms Bolwell. Mr McCormick put his left foot in a stirrup, laid on the saddle, patted the horse's flanks on each side, then went to step off again. Just as he put his right foot on the ground, and with his left foot still in the stirrup, Margot pulled away from Ms Bolwell, leading Mr McCormick to "do the splits". He concluded that Ms Bolwell could not get back next to the horse, so he hopped towards Margot. Doing so precipitated the horse to rear. Mr McCormick fell and was dragged a few metres, injuring his upper back, neck and right shoulder. 5. Mr McCormick sued his employer, Mt Pleasant Stud Farm Pty Ltd (Mt Pleasant), in negligence in the District Court. The primary judge accepted that Mt Pleasant ought to have taken the precaution of providing Mr McCormick with an assistant capable of controlling the horse. Ms Bolwell was found to have been of too slight a build for this purpose. 6. Mt Pleasant now appeals, asserting that the primary judge erred on the following grounds: 1. admitting and/or placing any weight on an expert report prepared by Mr Garry Matthews which was tendered by Mr McCormick; 2. making certain findings of fact; 3. finding that Mt Pleasant breached its duty of care; and 4. finding causation in the absence of evidence establishing that Mr McCormick's accident would have been avoided by providing him with another assistant. 1. Issues of breach and causation are at the heart of the appeal, as raised by grounds 3 and 4. Grounds 1 and 2 form the basis for those grounds. I will address each of these grounds in turn, after first summarising the factual background and the judgment below. Factual background 1. Mt Pleasant was owned by Roderick Hamilton, who was also its sole director. The company hired Mr McCormick in May 2012. A "Letter of Appointment" dated 13 June 2012 referred to his position as being that of "trainer". 2. By the time of his injury on 29 December 2014 Mr McCormick had broken in 20 to 30 horses for Mt Pleasant. Mr McCormick's evidence was that he had broken in most of these horses with the assistance of another employee, Mel Lane. Ms Lane had ceased to assist him in early 2014 following an injury. 3. Mr McCormick explained that, after Ms Lane's injury, he had delayed the breaking-in of horses because he lacked an assistant suited to the task. Racing NSW required that all persons in racehorse training activities be registered. The two other employees who were registered with Racing NSW as stable-hands were Ms Bolwell and Mr McCormick's son, Rory McCormick, who was then still at school. 4. Nonetheless, "the work was mounting", and so Mr McCormick decided to have Ms Bolwell assist him. According to Mr McCormick, Margot was the third or fourth horse which Ms Bolwell had assisted him in breaking-in. His evidence was that, before the accident, he had had several conversations with Mr Hamilton about what he saw as the unsuitability of Ms Bolwell for the task, owing to her small stature. The first of these conversations occurred, he said, sometime in March 2014. He said that he had asked if Ms Lane could return on "light duties", but was told by Mr Hamilton that he and Ms Bolwell would have to make do. 5. He gave evidence that on another of these occasions – in October and perhaps again in November 2014 – he specifically requested that another employee, Bob Stewart, be registered as a stable hand with Racing NSW, so as to enable him to assist with the breaking-in of racehorses. This was because he was of the view that Mr Stewart was "big, tall and strong" enough for the task. He said that, in reply, Mr Hamilton said words to the effect of: "I've told you it costs $2 more an hour to employ them with Racing New South Wales. Again, you and [Ms Bolwell] will have to do the best you can with all the breaking in and training." 1. Mr Hamilton denied having had any conversations with Mr McCormick about Ms Bolwell's unsuitability. He denied that Mr McCormick had requested that Ms Lane be recalled to assist in breaking-in horses. He denied that Mr McCormick had requested that Mr Stewart be registered as a stable hand. Mr Hamilton did, however, accept that in October or November Mr McCormick had said to him that he was getting behind with breaking-in. 2. On 29 December 2014 the accident occurred. In the court below there was a considerable volume of medical evidence as to Mr McCormick's injuries, none of which is the subject of controversy in the appeal. 3. Mr Hamilton's evidence was that Mr McCormick, after about a month of leave following the accident, "came back and carried on as normal". Mr McCormick, in contrast, gave evidence that upon his return to work he struggled with his duties because of his injuries. He said that he obtained a WorkCover certificate from his doctor on 11 February 2015, which, under the heading "Capacity", relevantly read "[n]o handling of horses. Office duties recommended". Mr McCormick said he provided the certificate to Mr Hamilton. The latter gave evidence that he did not recall receiving the certificate. Mr McCormick's employment was terminated by a letter sent on 13 February 2015, because, it was said, of a "change in the structure of the business". The judgment below 1. Mr McCormick brought proceedings against Mt Pleasant in January 2021. An extension of time for filing was granted by the District Court: McCormick v Mt Pleasant Stud Farm Pty Ltd [2021] NSWDC 415. By the combined operation of s 151E(1) of the Workers Compensation Act 1987 (NSW) and s 3B(1)(f) of the Civil Liability Act 2002 (NSW), Mr McCormick's claim fell to be determined under the common law of negligence, without modification by the provisions of the Civil Liability Act. 2. Mr McCormick and Mr Hamilton gave evidence. Ms Bolwell did not. The primary judge stated at [35] that her Honour's "[d]etermination of the issues in this matter depended significantly upon my assessment of the credit of" each of the two witnesses. She concluded at [53] that Mr Hamilton's evidence was "unsatisfactory and unconvincing in many respects and … as a whole was unreliable". Although expressed in terms of reliability, it is clear her Honour found Mr Hamilton was not a credible witness, having, for example, referred at [52] to what she regarded as his "attempts to mislead the Court". She accepted the evidence of Mr McCormick, whilst noting at [58] that he had displayed impatience with some cross-examination. 3. Her Honour also considered a report prepared by a Mr Garry Matthews relating to horse behaviour and training, and the appropriate attributes of people involved in breaking-in horses. The report was tendered by Mr McCormick. It is addressed further below. 4. There was no dispute below that Mt Pleasant, as employer, owed Mr McCormick a duty of care. The primary judge, uncontroversially, quoted the High Court's statement in Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14 at [12] that "[a]n employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury". 5. Her Honour did state at [83] that the non-delegable duty of an employer, whilst not amounting to strict liability, is "of a special or more stringent kind". That statement was criticised by Mt Pleasant on appeal. A non-delegable duty is "more stringent" in that it involves a "duty to ensure that reasonable care is taken": Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; [1994] HCA 13; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [21]. The greater stringency relates to the inability to avoid liability by delegating responsibility to others; it is not otherwise an alteration of what reasonable care requires: note New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [20]-[22], [33], [102]-[105], [261]-[265]; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [27]. If her Honour was suggesting that the duty of an employer generically requires a higher standard of care than other duties of care then that would be an error. However, even apart from the fact that this point was not raised in the notice of appeal, there was nothing in the remainder of the judgment to suggest that her Honour applied some standard beyond taking reasonable care. 6. In considering what reasonable care required here, her Honour said at [86]: "There was no dispute that the precautionary action customarily taken was to provide an assistant capable of controlling the horse to be weight tested. It was necessary that the assistant be of appropriate experience and physique. There were two employees qualified by registration with RNSW who were available to assist the plaintiff. Mr Rory McCormick was inexperienced and Ms Bolwell was of slight physique." 1. Her Honour identified at [87]-[88] three reasonable precautions which Mt Pleasant could have taken: register its employee Mr Stewart with Racing NSW, bring back Ms Lane, or outsource the work. Her Honour found breach established at [91], stating that Mr Hamilton "caused the defendant to be in breach of its duty of care in failing to consider adequately the risk to the plaintiff in providing him with an assistant who was not capable of controlling the horse to be weight tested by reason of her slight physique". 2. The primary judge found that Mr McCormick's injuries were caused by this failure on the part of Mt Pleasant to take these reasonable precautions in breach of its duty of care. The basis of that finding is discussed further below when addressing ground 4. Her Honour awarded $1,395,525 in damages. That assessment was not disputed on appeal. 3. The paragraph numbers in the hard copy judgment provided to this Court differ somewhat from those in the version of the judgment on the NSW Caselaw website. In this judgment I refer to the numbers in the online version. Ground 1: The report of Garry Matthews 1. Mt Pleasant challenges both the admissibility of parts of, and the weight given to, the report of Mr Garry Matthews. Admissibility 1. The attack on the report's admissibility was put on three bases. The first concerned the requirement under s 79 of the Evidence Act 1995 (NSW) that opinion evidence be based on the specialised knowledge or expertise of the witness. Mt Pleasant contended that it was impossible to ascertain how the opinions in the report could have been based on specialised knowledge or expertise, and there was no reasoning provided, such that the primary judge could not be satisfied that the opinions were based on any such knowledge. Mt Pleasant also specifically took issue with opinions expressed by Mr Matthews about the physiology of the horse's brain and about its DNA. 2. In determining admissibility under s 79 it is necessary to identify the facts in issue to which the opinion evidence is said to be relevant: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [31]. The primary judge did so. She described the evidence in the report as going to "the attributes required of [Mr McCormick's] assistant", explaining that the report "dealt with the breaking in process and confirmed that the steps taken by the plaintiff in preparing the horse for the weight test stage were appropriate and standard practice in the thoroughbred industry" (at [60]). Mt Pleasant had alleged contributory negligence below, which meant evidence about the appropriateness of how Mr McCormick had proceeded was relevant. Mr Matthews' evidence on that issue was not attacked on appeal. 3. Also at issue was the appropriate and standard practice in the thoroughbred industry at the weight test stage of breaking-in a horse, along with the attributes required of those involved in that process. The evidence which Mr Matthews gave which was most relevant to these points was as follows: "the role of an experienced handler of suitable size, stature and strength is vital at this stage, horses innately want to get along with people but due to their nature as prey animals, they can be easily startled. An experienced handler can see, feel and sense thru [sic] previous experience when a horse is becoming distressed and take appropriate measures to prevent this. If this cannot be prevented, then a larger, stronger, more imposing handler can use his strength and stature to subdue the animal. Due to horses being herd animals they live in a hierarchy and will yield to the more dominant, imposing, stronger animal, this is a trait they are born with regardless of whether they are raised in a herd or stable environment and whether they are domesticated or wild." 1. Mr Matthews then addressed the question of whether providing Mr McCormick "with an assistant with sufficient experience size height stature and strength" would have assisted to avoid the injury that he suffered: "the plaintiff was put in an unsafe position, in my opinion, due to not having a handler of suitable size, experience, height stature and strength. To expand on what I stated previously, horses are sensory reactive creatures and have a different brain structure to us. A horse has a mammalian brain, a reptilian brain and practically a non-existent frontal lobe, humans have a mammalian brain, a reptilian brain and a large frontal lobe. All our complex thinking and pre planning is done in the frontal lobe, the horse has no access to this and therefore can not pre plan and not make complex decisions. Therefore, when we are startled, we can reason that something is ok, a horse when startled, cannot; therefore the horse must use its two means of defence, fight or flight. Now this is where herd hierarchical mentality comes in, for a horse, the horse will look for the more dominant bigger, stronger leader of the herd to make a decision, in this case it would be a handler on the ground. With a lead on the handler could impose his reasoning on the horse and calm the situation. A person of smaller stature would not be able to do that, simply due to size and the horse's DNA telling him to not trust a smaller animal. Experience is paramount, here a handler must have been thru [sic] this process hundreds of times to increase the likely hood [sic] of a good outcome." 1. Mt Pleasant disputed whether the evidence quoted was substantially based on any specialised knowledge on the part of Mr Matthews. Mr Matthews' CV indicates that since leaving school in 1988 his experience encompassed "20 years riding experience as a professional jockey", "25 years of starting horses under saddle for the public", "8 years of dedicated application to breeding and training endurance horses", and 30 years as a horse trainer including "[s]tarting horses under saddle and training problem horses". Mr Matthews has also given seminars on equine behaviour. Mt Pleasant did not dispute the accuracy of any of this. 2. Whilst Mr Matthews' CV suggests that his formal education ended in Year 9 of secondary school, s 79(1) refers to "specialised knowledge based on the person's training, study or experience". Mr Matthews' experience was extensive and provided good reason to think that he had specialised knowledge of horse behaviour and training, along with the appropriate attributes of people involved in the breaking-in of horses. 3. Mr Matthews' reference to what "the DNA" of horses tells them can reasonably be understood as not a complex genetic claim, but rather evidence as to the general behaviour of horses from learned experience. 4. His evidence about the neurology of horses in the passage quoted above at [29] – for example, referring to their "mammalian brain, a reptilian brain and practically a non-existent frontal lobe" – is rather odd. It may well have been beyond his expertise as a trainer if taken literally subject, perhaps, to clarification of what if any further study of horse anatomy and behaviour he had undertaken. But it can be understood as an eccentric way of expressing learned conclusions about the behaviour of horses. Of course, such evidence would, at first blush, have gladdened a cross-examiner's heart, as it appears readily capable of challenge. But Mt Pleasant did not require Mr Matthews for cross-examination, even on a voir dire. No doubt that choice was made for good forensic reasons. On its face it was plausible that the language he used was a way of expressing matters within his specialist knowledge. In any case, the sentences using this type of language do not appear critical to the conclusions he expressed. 5. The second challenge to the report's admissibility is that there was no evidentiary utility in the opinions of Mr Matthews in the absence of any reasoning on his part as to what was meant by "suitable size, experience, height, stature and strength". This challenge goes to the evidence quoted above at [29]. 6. There were some problematic assumptions which Mr Matthews was asked to make by Mr McCormick's solicitors. The assumptions included the following: "Persons of suitable experience, size, height, stature and strength were working on the farm but were not registered with Racing NSW and thus the plaintiff was unable to engage their assistance. … The assistant that the plaintiff was required to use on this occasion was Mel Bolwell an apprentice jockey weighing approximately 45kg and standing approximately 155cm tall." 1. The combined effect of these paragraphs is that Mr Matthews was asked to assume that Ms Bolwell was not a person of suitable experience, size, height, stature and strength. This means that to the extent that Mr Matthews gave evidence that Ms Bolwell was not appropriate for the job, that evidence would arguably not assist the Court, being a conclusion that followed from the assumptions. The same may be said of Mr Matthews' statement that "the plaintiff was put in an unsafe position, in my opinion, due to not having a handler of suitable size, experience, height stature and strength". But the argument that these aspects of his evidence rose no higher than the assumptions was not put to the Court below, and thus the primary judge cannot be said to have erred in not considering this argument. 2. In any case, there remains evidentiary utility in the more general opinion of Mr Matthews that "an experienced handler of suitable size, stature and strength is vital", and that, in the event a horse is becoming stressed, "a larger, stronger, more imposing handler can use his strength and stature to subdue the animal". Mt Pleasant asks rhetorically: "How tall should the person be? How strong should the person be?" But there is no reason that Mr Matthews had to engage in precise line-drawing of this kind. The effect of his evidence is that the larger and stronger a person, the more they are able to control a horse. Such evidence goes to a fact in issue, being what reasonable precautions ought to be taken at the weight test stage of breaking-in a horse. His evidence indicates that the bigger and stronger the assistant, the less likely one will be to lose control of the horse. He gave some reasons in support of that conclusion which were understandable – if, in some respects, odd – and which could have been tested. 3. The third challenge to the report's admissibility, to the extent that it goes beyond the second, is that Mr Matthews failed to explain how a "handler could impose his reasoning on the horse and calm the situation". Mr Matthews explained that horses yield to "dominant" figures, and that dominant figures are those who are stronger and bigger. A stronger and bigger person is able to impose their "reasoning", which can be understood to mean "wish" or "will", because a horse will yield to them. There was sufficient explanation of these points to be admissible. 4. Mt Pleasant has not established that the primary judge erred in admitting the parts of Mr Matthews' report to which objection had been taken. Weight 1. Mt Pleasant argued that the primary judge erred in "placing any weight on the opinions of Mr Matthews in the manner that she did". 2. It is necessary thus to consider what use her Honour did make of the report. She said at [63] that "Mr Matthews' expertise and experience were sufficient to allow me to draw assistance from the opinions expressed in his report", and then stated the following at [64]: "Mr Matthews' reasons that supported his opinion that an assistant of greater stature and strength was required were: (1) Experience provides the ability to foresee that an animal is becoming distressed and to take appropriate measures; (2) As herd animals, horses yield to the dominant member of the herd. Dominance depended upon size and strength; and (3) In times of stress, a horse will look to the dominant leader of the herd, that is, a horse that is bigger and stronger to decide its reaction. At the weight testing state of the breaking in process, it is the assistant who fulfils this role. A person of smaller stature would not be trusted by the horse for this purpose." 1. Despite this summation, the report does not seem to have played a substantial role in her Honour's findings. 2. Her Honour found at [76]-[77] and [96] that the accident occurred because Ms Bolwell lost control of the horse after it became unsettled and she did not have the physique or strength to regain control. The primary judge did not advert to the report in making this finding. Of their nature, these findings appear to be based on the evidence of Mr McCormick. 3. As to breach, her Honour found as follows (emphasis added): "[90] Mr Hamilton rejected the advice of the plaintiff that Ms Bolwell was inappropriate for the particularly hazardous task of assisting in the weight testing process. In this advice the plaintiff was supported by expert evidence. Mr Hamilton rejected the alternatives proposed by the plaintiff. [91] I was satisfied that Mr Hamilton caused the defendant to be in breach of its duty of care in failing to consider adequately the risk to the plaintiff in providing him with an assistant who was not capable of controlling the horse to be weight tested by reason of her slight physique." 1. The Matthews report lent "support" to the opinion provided by Mr McCormick, but it was not suggested to be critical. Further, the finding was based on the fact that Mr Hamilton had rejected the alternatives proposed by Mr McCormick (noted above at [22]). That conclusion hinged on the employer's failure to have regard to the advice of an experienced employee, not on what was said in the report. 2. As to causation, the primary judge found at [101] that "the risks involved in the weight testing process eventuated". Mr Matthews had given evidence about those risks. But, again, there is no indication that that finding was substantially premised on the evidence in the report, especially when it was open on the evidence of Mr McCormick. 3. Accordingly, it is far from evident that Mt Pleasant's challenges to Mr Matthews' report would lead to any different result. Nonetheless, the reasons given by Mt Pleasant as to why the report ought to have been given little weight will be considered in turn. 4. The first was simply a repetition of the argument that it is unclear what is meant by a "larger, stronger, more imposing handler". The second was a repetition of the argument that Mr Matthews failed to set out his reasoning as to what he meant by "suitable size, experience, height stature and strength". These arguments should be rejected for the reasons given above with respect to admissibility. 5. The third reason proffered was that Mr Matthews appeared to suggest that Ms Bolwell was inexperienced, which evidence was in the face of the evidence given by Mr McCormick that Ms Bolwell was "extremely capable". But nowhere in the judgment below did the primary judge find that Ms Bolwell was insufficiently experienced. Her Honour found at [86] that "[t]here were two employees qualified by registration with RNSW who were available to assist the plaintiff. Mr Rory McCormick was inexperienced and Ms Bolwell was of slight physique". In other words, the problem with Ms Bolwell was not that she was inexperienced but that she was of slight physique. 6. Mt Pleasant's fourth reason relates to "the repeated use of the masculine pronoun 'his' throughout the report", which Mt Pleasant says suggests "that the expert did not consider that any woman, regardless of weight, height or strength could ever be a suitable 'handler on the ground'". Not everyone uses gender neutral language when they mean to be gender neutral. The topic could have been explored in what might have been interesting cross-examination. 7. The fifth reason given is that the report was "internally inconsistent" because "despite focusing on the combination of 'suitable size, experience, height stature and strength' … Mr Matthews opines that 'experience is paramount, here a handler must've been thru [sic] this process hundreds of times to increase the likely hood [sic] of a good outcome.'" There is no necessary inconsistency. It is apparent that the word "paramount" is used here in the sense of being of great, and perhaps greatest, significance. That evidence does not mean that size and strength are not significant. 8. The sixth reason is that "[e]ven if it was accepted that horses will 'yield to the more dominant, imposing, stronger animal' it had not been established that Mr Stewart would be stronger and of sufficient stature than a horse that has been bred specifically for racing and weighs some 500kg". This argument is obtuse. To read the report as suggesting that horses yield only to animals which are stronger than them would suggest that no human could ever cause a horse to yield. That was not the effect of Mr Matthews' evidence. 9. Mt Pleasant has not established that the primary judge gave excessive weight to the conclusions of Mr Matthews. Ground 1 is not made out. Ground 2: Challenges to findings of fact 1. Ground 2 challenges seven findings of fact, namely (to quote the notice of appeal): "a. Ms Bolwell was not suitable for the role of assisting the Respondent in the weight testing process; b. Prior to 29 December 2014, the Respondent had advised [Mr Hamilton] that Ms Bolwell was not a suitable person to assist him in the breaking-in of the horses; c. Prior to 29 December 2014, the Respondent requested on a number of occasions that the Appellant (through [Mr Hamilton]) for another employee, Robert Stewart to; be registered with Racing NSW as a stable hand so that he would be available as an assistant for the purpose of breaking in the Appellant's thoroughbreds. d. That [Mr Hamilton] had refused the express requests of the Respondent referred to in (c) above influenced by the additional cost of $2 per hour had Mr Stewart been registered by Racing NSW. e. That the Respondent had no choice but to select Ms Bolwell for the role of the assistant on 29 December 2014. f. That the accident occurred when Ms Bolwell lost control of the horse after the horse became unsettled. g. That Ms Bolwell lost control because she did not have the physique or strength to exert command over the horse or to regain control once it was lost." 1. Mt Pleasant submitted that these challenges were "at the heart of this appeal". Yet these factual findings were made in light of credit findings, recalling her Honour's observation at [35] that determination of the issues in the matter "depended significantly upon my assessment of the credit" of Messrs McCormick and Hamilton. As noted above, she concluded at [53], after a careful review of testimony, that Mr Hamilton's evidence was "unsatisfactory and unconvincing in many respects and … as a whole was unreliable". 2. In its submissions Mt Pleasant accepted that in setting aside a finding of fact which is based on conclusions as to credit or reliability the Court must be satisfied that the finding is contrary to incontrovertible facts or uncontested testimony, is glaringly improbable, or is contrary to compelling inferences. However, it sought to limit this principle of appellate restraint to findings expressed to be based wholly or partly on observations of demeanour, saying that otherwise "this Court is in as good a situation as the trial judge when it comes to looking at the content of the evidence as to whether it justifies the findings that were made". 3. In Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 the plurality said as follows (at [55], citations omitted, emphasis added): "Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts." 1. The impressions formed by seeing and hearing a witness are not limited to impressions of demeanour in some narrow sense of what is observed. What is heard, and the context of the evidence, is also important: note further, generally, White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 at [104]-[109] per Bell P, [155]-[156] per White JA. The tone in which evidence was given may be important. Sarcasm, arrogance, humour or humility may not be conveyed to a subsequent reader of the transcript. Such a reader may not appreciate that an answer was given angrily in response to some provocation, such that its significance is not what might appear from the page. Nor may such a reader understand the impression formed by any pauses in answering a question. Pauses themselves might communicate a diligent care for truthfulness on the one hand, or a crafty search for a path through landmines on the other. Here, for instance, Mt Pleasant sought to rely on claimed concessions made by Mr Hamilton, but a transcript may not fully reveal the courtroom atmosphere which may affect whether a statement against interest is understood as a volunteered concession or a reluctantly forced admission. 2. The factual findings in paragraphs (b), (c), (d) and (e) relate to specific facts where there was conflicting evidence of Mr McCormick and Mr Hamilton. These are findings which are likely to have been affected by impressions about the credibility and reliability of the two witnesses formed by the primary judge as a result of seeing and hearing them give their evidence. That is so even though her Honour did not state as much in terms. 3. There is nothing in the objective evidence which suggests that these findings were glaringly improbable, contrary to compelling inferences, or the like. Counsel for Mt Pleasant did not seek to show that they were, apart from a claim in written submissions that Mr McCormick's version of events "defies logic and common sense". That assertion was not developed in writing. In oral address senior counsel for Mt Pleasant, understandably, made little attempt to make good ground 2 beyond the attempt to limit the principle of appellate restraint. 4. In any event, having regard to all of the evidence, the credit findings against Mr Hamilton are justified, and findings (b) to (e) were correctly found by the primary judge. Her Honour had good reason to doubt the credibility and reliability of Mr Hamilton; for example: 1. When asked whether he had been involved in the day-to-day running of the farm, Mr Hamilton answered that he was "[n]ot directly involved in it, but I was aware of what was going on". He was then shown a statement of his dated 16 April 2021 in which he deposed that "[a]s a director and owner of the stud farm, I am involved in the day to day running of the farm". He accepted that that was true, and had been the case since he owned Mt Pleasant. He further accepted that he had "also managed the farm's financial plans; engaged staff; serviced providers and contractors such as farriers, feed suppliers and debt", and had managed overall maintenance plans, staff and breeding programs. 2. Mr Hamilton's account of the circumstances surrounding the termination of Mr McCormick's employment was entirely unconvincing. Mr Hamilton gave evidence that after his injury, and after taking leave, Mr McCormick came back in late January 2015 "and carried on as normal". Mr Hamilton said that he did not remember when Mr McCormick came to him with a medical certificate indicating that he was medically unfit to perform horse handling work. That medical certificate was dated 11 February 2015. Mr Hamilton terminated Mr McCormick's employment on 13 February 2015, but he says the medical certificate had nothing to do with the timing of the termination, which he said occurred due to a restructuring of Mt Pleasant's operations. He said that terminating Mr McCormick "was something that I had considered some months earlier"; that he thought it "more favourable and kinder to him to not mention it, and give him the opportunity to enjoy his holiday"; and after Mr McCormick returned to work he waited two weeks to tell him he was out of a job because "I was choosing what I believed to be the right time to tell him". When the cross-examiner expressed scepticism, he said "I don't think you're accepting my sympathetic approach to the gentleman". Such testimony was not only lacking in insight; it was not believable. 3. Mr Hamilton ridiculed as "absurd" the suggestion that he would be concerned about having to pay Mr Stewart an additional $2 per hour if he was registered with Racing NSW. Yet he accepted that having terminated Mr McCormick he would need to employ someone else, saying that he could manage the farm with someone who was "perhaps of a less[er] calibre than" Mr McCormick. This purported justification implicitly suggested that he was concerned to save money. 1. No such doubts were established about the evidence of Mr McCormick. The primary judge did not err in accepting his evidence and making the findings she made at (b) to (e). 2. The challenge to finding (a) – that Ms Bolwell was not suitable for the role of assisting the Respondent in the weight testing process – must also be rejected. There was sufficient evidence available to found that conclusion. To begin with, the accident did in fact occur, and Ms Bolwell was not in fact able to control the horse. That does not necessarily mean another person would have been able to do so, but they may have been. That issue is addressed further below with respect to causation. There is then Mr McCormick's own evidence that Ms Bolwell was unsuitable, as noted above at [11], and addressed further below with respect to causation. That this evidence was given in his own interest does not require that it be ignored. Moreover, the effect of Mr Matthews' evidence was that the bigger and stronger an assistant, the more likely a horse will yield to them. The primary judge found that Ms Bolwell was of slight build being 155cm tall and weighing 45-49kgs. When these matters are taken together, they furnish an adequate basis for the making of the finding that Ms Bolwell was unsuitable. 3. Findings (f) and (g) concern causation, and are best considered when addressing ground 4. Ground 3: Challenge to finding of breach 1. The third ground of appeal is a challenge to the finding that Mt Pleasant breached its duty of care. The challenge is put on two bases in the notice of appeal: "a. [Mr McCormick] was the sole trainer who was registered with Racing NSW and the only person who had the appropriate knowledge, expertise and experience to devise a safe system of work in terms of breaking in and training new thoroughbreds for the [Mt Pleasant]; b. [Mt Pleasant] was entirely reliant on [Mr McCormick's] knowledge, expertise and experience to undertake the breaking in and training of its horses." 1. These two arguments must fail in consequence of the primary judge's findings, upheld above, that Mr McCormick informed Mr Hamilton of Ms Bolwell's unsuitability and requested that Ms Lane be recalled or that Mr Stewart be registered. By reason of these findings, Mt Pleasant was in a position to implement a safe system of work taking account of Mr McCormick's warnings. Ground 4: Causation 1. As explained above, the breach of duty found was a failure "to consider adequately the risk to the plaintiff in providing him with an assistant who was not capable of controlling the horse to be weight tested by reason of her slight physique". The primary judge then found this breach was a materially contributing cause of Mr McCormick's injuries on the following basis: "[96] … Ms Bolwell had lost control of the horse. The subsequent behaviour of the horse that caused the harm to the plaintiff was the result of that initial loss of control. The initial loss of control was caused because Ms Bolwell did not have the strength to maintain control. She did not have the required level of strength because of her slight physique. … [101] I was satisfied that the defendant's breach of duty of care materially increased the risk of injury to the plaintiff and that the risks involved in the weight testing process eventuated." 1. Mt Pleasant challenged the factual findings that the accident occurred when Ms Bolwell lost control of the horse after the horse became unsettled, and that Ms Bolwell lost control because she did not have the physique or strength to exert command over the horse or to regain control once it was lost. More generally, Mt Pleasant submitted that the evidence did not establish that Mr McCormick's accident would have been avoided by providing him with another assistant (including Mr Stewart) to assist in the weight testing process. It also suggested that her Honour had erroneously proceeded on the basis that an increase in risk would suffice to make out causation. 2. It is appropriate to address the facts first, before considering the legal issue raised by Mt Pleasant as to what must be shown in cases alleging an increased risk of harm. The factual issues 1. The substance of Mt Pleasant's factual challenge was that: 1. the chain of events leading to Mr McCormick's injuries began when Margot pulled about 1.5 metres away from Ms Bolwell during the weight testing; 2. this would not have been averted if Ms Bolwell had been stronger or of a different physique (saying it was perhaps caused by her inexperience, but that was not part of Mr McCormick's case); and 3. the assistant's strength or physique could not have prevented Margot rearing after she had already pulled away. 1. This argument was put and rejected below. It is not supported by the evidence. 2. The only person who testified to what occurred was Mr McCormick, whose evidence the primary judge accepted. He described the accident in his evidence-in-chief as follows, from the point where he went to dismount Margot: "My foot landed where we were - where the horse was when I - when I went to dismount, the horse moved or shied. So, when I've come down with my foot, like, I'm doing the splits. I'm away from the horse. I've got a rein. I've got a rein. My foot's stuck in the iron, and I glanced for [Ms Bolwell], but she was not there, so I turned and looked, and saw that she was on the end of the lead. I said to [Ms Bolwell], 'Can you get to the horse?' And when I had the further look, I realised she was [in] trouble herself. I couldn't maintain the position I was in, so, I tried to hop close. I told [Ms Bolwell], 'I'm going to have to hop'. And as soon as I hopped, the horse reacted badly, shied, reared, and I got flipped, like the end of a stockwhip, on the ground." 1. When asked where Ms Bolwell was before the point where he hopped, he said: "She was a bit further away than I hoped, she was about a metre and a half. The - the - the lead would be 2 metres long. She would - she should have been a metre and a half away from the horse, which was probably a metre too far." 1. When asked what he could see at the point, he said: "I could see she was still struggling. She was unable to move. She was really at the end of - you know, she's struggling and I'm thinking, 'Oh my God, she's going to lose the horse', so I elected to go for the hop." 1. In cross-examination, he was asked again about what had occurred, and whether having someone stronger and taller assisting him could have made a difference. His answers included the following: "She didn't have control of the horse [at the point just before he hopped]. If she had have had control of the horse she would have been able to walk into the horse. She could not make any advances to the horse because she was struggling to hold the position she had. … If you've got enough strength, you can hold and move to the horse. But she was - she was struggling to hold her position. … What was required was somebody that wouldn't have got so far away from the horse in the first place. I believe she got - the horse got away from her in the first place due to a lack of physical strength. … There was a moment when I was doing the splits, and [Ms Bolwell] was at the head of the horse. There was a moment there where the person on the lead would have a chance to get to the horse. Under these circumstances I do not believe she had the strength to get there. She said she didn't. And that's the way I see it. I'm sure a stronger person, firstly, would not have got so far away from the horse, and, secondly, if they had have got that far away from the horse, they would have been able to hold the pressure on the horse's head, and move themselves in." 1. When it was put to him that a human is never a match for a 500kg horse, he stated: "I wouldn't agree with that. It all comes down to physical strength. When you're on the ground it comes down to physical strength. When you're in the saddle, it comes down to hands and riding ability. On the ground, trying to hold a horse still, is significantly easier if you have the more strength the better." 1. When asked if he was 100% sure that that accident would have been avoided if someone bigger and taller was holding the horse, he said: "Well, you can't be 100 percent sure, but I would be very confident if I was in that situation, that a stronger person may have been - would have been - would have been, much more assistance". Read as a whole, this answer suggests that whilst he could not be 100% certain, he considered that having a stronger person there would have made a difference. He accepted that "once the horse reacted violently, you would – you would not be able to – there's no coming back". 2. Mt Pleasant emphasised that last answer both below and on appeal. But as the primary judge explained at [96]: "before circumstances arrived at the point to which the plaintiff was referring, Ms Bolwell had lost control of the horse. The subsequent behaviour of the horse that caused the harm to the plaintiff was the result of that initial loss of control. The initial loss of control was caused because Ms Bolwell did not have the strength to maintain control. She did not have the required level of strength because of her slight physique." 1. Those findings were well based. The evidence of Mr McCormick was, in summary, to the following effect. The horse got away from Ms Bolwell prior to his hop, that is, she had lost control of the horse. He considered that this would not have occurred if she had been stronger. After that, Ms Bolwell was struggling and could not regain control of Margot, nor advance back towards her, again due to lack of strength. Because he could see she was struggling and believed she did not have the strength to get back to the horse, he made the hop towards Margot, precipitating the horse rearing, so that he "got flipped". In his view the accident would not have occurred if he had been assisted by someone who was stronger and taller than Ms Bolwell, as such a person would not have lost control and/or would have been able to regain control (it can be inferred that he was referring to someone significantly stronger). As already discussed, Mr McCormick's judgment as to the importance of strength in this situation was entitled to be given weight given his extensive experience. 2. Mt Pleasant further contended that Mr McCormick ought to have shown at trial not merely that the presence of some other assistant generally would have made a difference, but that Mr Stewart's presence would have made a difference. Mr McCormick gave evidence that Mr Stewart "was an extremely big man. Strong, tall". In reference to another man with whom he had worked, Mr McCormick said "he was probably not as big as Mr Stewart, but he was 110 kilos". Mr Hamilton himself described Mr Stewart as "tall, not short", and "he was … a big boy". If Mr McCormick was required to show that that Mr Stewart's presence would have made a difference, then this evidence was sufficient. 3. Mt Pleasant has thus not made out its factual challenge on causation issues. The legal issue 1. To make out causation it was necessary for Mr McCormick to establish that the failure to provide him with an assistant of stronger physique was a materially contributing cause of his injuries. Mt Pleasant submitted that the primary judge fell into the error of concluding that a mere increased risk of injury was sufficient. 2. It has regularly been held that merely establishing an increased risk of injury caused by a breach of duty is not enough, by itself, to establish causation. It is necessary in such cases to show that the risk "came home" (ie eventuated) in the sense that the defendant's breach is established to have played at least a materially contributing role in the injury occurring: see eg Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 at 315-318 per Mason P; Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355 at [43]-[44] per Hodgson JA; Roads and Traffic Authority v Royal (2008) 82 ALJR 870; [2008] HCA 19 at [143]-[144] per Kiefel J; Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 at [74] per Beech-Jones CJ at CL. 3. Spigelman CJ summarised the position in his learned judgment in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 as follows: "[118] The issue in the present case is whether an increased risk did cause or materially contribute to the injury actually suffered. [119] There is a tension between the suggestion that any increased risk is sufficient to constitute a 'material contribution', and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart [(1998) 195 CLR 232; [1998] HCA 55] and in the cases that suggest the former, the actual risk had materialised. The 'possibility' or 'risk' that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X." 1. Similarly, in TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380 at [59] Mason P explained: "A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probability that the defendant's breach caused or materially contributed to the harm actually suffered." 1. In this case the primary judge stated at [97] that authority "established that the appropriate inquiry was whether the breach of duty materially increased or contributed to the risk of injury". She suggested at [98] that it was not necessary for her to be satisfied that "the presence [of] Mr Stewart, or someone of an unspecified greater strength and stature, would have changed the outcome or that the failure to provide an assistant of appropriate strength and stature substantially increased the risk". If these statements were meant to suggest that merely establishing an increase in risk would suffice to make out causation then they were erroneous. 2. Nevertheless, what her Honour actually concluded in the end was that causation was made out on the basis that "the defendant's breach of duty of care materially increased the risk of injury to the plaintiff and … the risks involved in the weight testing process eventuated" (at [101], emphasis added). That was a finding that the breach materially contributed to Mr McCormick's injuries. That conclusion was well founded, for the reasons just addressed in considering Mt Pleasant's factual challenges. The evidence established that Ms Bolwell did not have the strength to maintain or regain control of Margot, and it was likely that a significantly stronger person, such as Mr Stewart, would have been able to do so. 3. Ground 4 is thus not made out. Orders 1. The appeal should be dismissed. Costs should follow the event. 2. At the close of the hearing, senior counsel for Mr McCormick sought an order for liberty to apply in the event that the appeal was dismissed. He explained that the parties had agreed that the judgment below should be stayed on the condition that workers compensation payments continue, and this may have some effect on calculation of what damages are ultimately payable. The request is reasonable and was not opposed. 3. The orders of the Court should thus be as follows: 1. Appeal dismissed with costs. 2. The parties have liberty to apply within 28 days in order to resolve any issue as to the final sum payable to the respondent. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2022