Supreme Court New South Wales Medium Neutral Citation: Cook v Riding for the Disabled Association (NSW) & Anor [2024] NSWSC 1332 Hearing dates: 9 September 2024 Date of orders: 22 October 2024 Decision date: 22 October 2024 Jurisdiction: Common Law Before: Fagan J Decision: (1) Verdict and judgment for the plaintiff against the first defendant, damages to be assessed. (2) Verdict and judgment for the second defendant on the plaintiff's claim. (3) The cross claims of the first and second defendants are dismissed. (4) The first defendant is to pay the plaintiff's costs of the proceedings to date so far as those costs concern litigation of the first defendant's liability in negligence. (5) The plaintiff is to pay the second defendant's costs of the proceedings, including the second defendant's costs of the cross-claims. (6) List the proceedings before the Registrar at 9:30 am on 1 November 2024 for directions with respect to further conduct of the proceedings against the first defendant. Catchwords: TORTS – negligence – personal injury – determination of liability – where severely disabled plaintiff fell during recreational horse riding activity – where plaintiff's low intellectual function, distractibility, impulsivity and physical disabilities increased the likelihood of falling and suffering serious harm – social utility of riding activity to plaintiff – whether failure to provide side walkers in close proximity was a breach of duty TORTS – negligence – duty of care – whether school had non-delegable duty of care during riding activity –riding activity found to be independent of school – school-pupil relationship was not operative during the plaintiff's fall Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63 Category: Principal judgment Parties: Breanne Cook by her tutor Kristy Stewart (Plaintiff) Riding for the Disabled Association (NSW) (First Defendant) State of New South Wales (Department of Education) (Second Defendant) Representation: Counsel: J Morris SC with WS Reynolds and LM Sewell (Plaintiff) J Sexton SC with B Dziubinski (First Defendant) L Gyles SC with M Best (Second Defendant) Solicitors: Burke Mead Lawyers (Plaintiff) McCabes Lawyers (First Defendant) Wotton & Kearney (Second Defendant) File Number(s): 2022/169011 Publication restriction: No JUDGMENT 1. HIS HONOUR: The plaintiff sustained a right femoral neck fracture when she fell from a horse on 12 September 2019. The fall occurred at the first defendant's Irrawang Equestrian Complex located 5 km north of Raymond Terrace, off the Pacific Highway to the west. The plaintiff claims damages in negligence against Riding for the Disabled Association (NSW), whose employed coach and unpaid volunteers were conducting the riding activity during which the fall occurred. 2. The plaintiff was 10 years old at the date of the accident. She suffers from cerebral palsy, severe global developmental delay and autism. During 2019 she attended the Hunter River Community School at Maitland, run by the Department of Education of the State of New South Wales. The school provides specialised care and teaching for children with complex disabilities. The plaintiff has joined the State of New South Wales as second defendant, alleging that she was in the school's care when she fell from the horse, that the performance of the school's duty to her was non-delegable and that duty was breached by the manner in which the first defendant conducted the riding activity. 3. There are cross claims between the two defendants. They seek an apportionment of liability if the plaintiff should succeed against both. 4. On 29 November 2023 the Court (Lonergan J) made an order in the following terms: Pursuant to rules 29.4 and 28.2 of the Uniform Civil Procedure Rules the issue of liability if the defendants for the injury suffered by the plaintiff, including issues raised on any cross claims, is to be heard and determined separately and prior to the hearing and determination of quantum of damages. The hearing of the separate issue took place before me on 9-12 September 2024. These are the Court's reasons for determination of the issue. The defendants 1. The first defendant is an incorporated non-profit association that provides opportunities for people with disabilities to enjoy horse riding. It has developed an extremely detailed and comprehensive manual for its operations. The subjects covered include training of coaches, assessment of trainees for accreditation, training and assessment of volunteer assistants, assessment and selection of suitable horses, medical information concerning disabilities that may affect riders, assessment of riders and risk management. 2. Ms Nicole King is a Training Organisation Officer employed by the first defendant at its Box Hill riding centre. She is a member of a panel that oversees training and assessment of coaches. Ms King gave evidence that the benefits intended to be delivered through the first defendant's activities include improving the confidence of disabled persons, increasing their core strength, which may have diminished as a result of extended immobility, and developing fine and gross motor skills. 3. For at least several years prior to 2019 the school received an annual offer from the first defendant of up to 12 places for pupils to take part in one hour riding sessions on one day per week from June through November at the first defendant's Irrawang Equestrian Complex. Each year one teacher would serve as an excursion coordinator and would consult with the School Executive, including the Principal, to identify pupils whose medical condition and behavioural characteristics would be compatible with the horse riding activity. The parents of those children were then invited to complete pro forma application documents supplied by the first defendant. The first defendant would determine the suitability of the children for whom applications were submitted. 4. That process was followed in May 2019. The plaintiff's mother, Ms Kristy Stewart, submitted application documents and the plaintiff was accepted into the program. Commencing on 6 June 2019, she and two or three other participants were transported each Thursday afternoon from the school to the first defendant's Complex. Transport was by bus operated by the school. The participants were accompanied on the bus by two members of the teaching staff who remained with them at the Equestrian Complex throughout their riding activity. That routine was followed on 12 September 2019. The riding activity 1. The plaintiff and two other pupils from the school who accompanied her to the first defendant's Equestrian Complex on 12 September 2019 were each assisted to mount a quiet horse. The horses were led across a paddock and along a bushland track for total of about one hour. A volunteer was assigned to lead each horse, holding a lead attached to its halter and walking to the left, behind the horse's head and adjacent to its neck. The leader's task was to concentrate on the horse, to look forward, to guide the horse in the desired direction and to avoid uneven ground or obstructions that might cause the horse to stumble or make a sudden movement. 2. Other volunteers acted as side walkers. The role of a side walker was to walk adjacent to the rider, ready to assist him or her as needed. Ms King said that the assessment of whether a rider required a side walker and, if so, whether it should be only one (usually on the right, side opposite to the leader) or one on each side, would be made primarily "on [the basis of] the ability of the person to hold their upper body upright as well as their ability to comply with instructions". 3. The plaintiff had taken part in this activity on each of eight occasions prior to 12 September 2019. She attended the first defendant's Equestrian Complex during June, July and August of that year. In an evidentiary statement, her mother, Ms Stewart, refers to only six prior occasions. The first defendant's attendance record shows eight and I regard the business record as more reliable. On 12 September 2019 there were two other riders in the group from the plaintiff's school. On each of the earlier occasions there had been either two or three other riders. Two teachers from the school accompanied the participating children to the riding centre on each visit. The teachers walked along with the horses and volunteers. Ms Rebecca Sharp, a coach employed by the first defendant, accompanied the horses, riders, volunteers and teachers throughout each session. She walked through the paddock and along the trail, in a position at the rear of the group from which she could see all horses and people involved. The role of the teachers who attended the riding session 1. On 12 September 2019 the plaintiff and the two other pupils who were to ride that day were driven to the first defendant's riding centre by school bus, departing from the school at about 12:20 pm. A classroom teacher, Ms Natasha Brown, and an intern trainee teacher, Ms Mackenzie Gleeson, travelled with them. The bus arrived at the centre shortly before 1:00 pm. The teachers assisted the children to alight. The coach, Ms Sharp, and the volunteers who were to assist with the session for that day met the children at the bus and took them in hand to prepare for the ride and to assist the children to mount. 2. The documents that were provided by the first defendant to the school and that were sent out by the school to parents in May 2019, when applications to participate in the riding program were invited, included an explanatory document entitled "Annual Rider Registration Procedure 2019". The following paragraph appeared on that document: 2 Parents/carers must supervise riders in their care, when they are not participating in an RDA session. 1. Page 2 of the document entitled "Participant's Consent" listed 12 conditions to which the applicant was required to agree. Item 10 was as follows: 10 I understand, a condition of participation in an RDA programme is dependent upon a parent/carer or responsible person (18+ years of age), supervising participant before and after riding and to be available during the riding lesson. 1. Neither the plaintiff's parents nor the parents of any of the other participants from the Hunter River Community School accompanied the disabled children to the riding sessions, including the session on 12 September 2019. The carers who accompanied the pupils and who fulfilled the above requirements of the first defendant were the teachers. In accordance with those clauses, two teachers from the school attended each session and remained present to supervise the disabled children, as and when required, in all respects other than the actual conduct of the riding activity. 2. After passing the children into the care of the first defendant's coach and volunteers upon arrival, the teachers then accompanied the horses and children as the ride progressed through the paddocks and along the trail. The teachers were thus on hand to resume supervision of any of the participants at any time, for example if the ride should be brought to an end for one or more of them. The teachers resumed supervision of the children after they had dismounted at the conclusion of the ride, at which time the children were returned from the care and control of the first defendant's personnel. The riding session on 12 September 2019 and circumstances of the fall Commencement from the arena into the paddock 1. Ms Anne Hutchings was assigned by Ms Sharp to lead the plaintiff's horse on 12 September 2019. It was common for there to be prepared in advance of each riding session an assignment sheet, on which the coach would specify how many side walkers were to accompany each rider and which individuals would undertake the respective tasks. There was no document of that nature available for tender in respect of the activity on 12 September 2019. However, it is clear from what occurred on that day that Ms Sharp allocated Ms Hutchings to lead the plaintiff's horse and she allocated only one side walker for that horse, Mr Paul Radley. He was directed to walk on the plaintiff's right side. 2. The second pupil was also assigned a leader with a single side walker and the third pupil was assigned a leader but no side walker. There is an arena at the riding centre located within a large shed measuring approximately 80 m on a north south axis by about 20 m wide. At about 1:00 pm the pupils were assisted by Ms Sharp and volunteers to mount their horses in the covered arena, using a mounting platform. The horses with their riders were initially walked around the arena to settle the pupils in. Then they were led out of the arena through the north end. The group turned right and walked in an easterly direction across a cleared paddock to the edge of an area of bushland with a creek running through it. The distance from the north end of the covered arena to the bush at the east edge of the cleared paddock is approximately 200 m. 3. At the hearing of the plaintiff's claim evidence was given by Ms Sharp, Ms Hutchings and the two teachers from the plaintiff's school, Ms Brown and Ms Gleeson. Photographs taken on 12 September 2019 show that the plaintiff carried with her a drink bottle and a soft toy. There were also photographs of her carrying the soft toy during previous riding sessions. Ms Sharp said that on at least one earlier occasion the plaintiff had become upset when someone attempted to take the soft toy from her. She was therefore allowed to carry it. The plaintiff's interference with her helmet 1. In her evidentiary statement of 12 December 2023 Ms Hutchings said that as the group walked across the paddock, the plaintiff became "fidgety" and tried to take her helmet off and to pull her feet out of the stirrups. Ms Hutchings said she stopped the plaintiff's horse repeatedly so that Mr Radley could put the helmet back on. None of the other witnesses described repeated stops for this purpose and I am satisfied that there was only one, at a point near the area of bush at the eastern side of the paddock. At that location, Ms Sharp observed that the plaintiff was unsettled and called out to the leaders to halt, which they did. Ms Hutchings said that Mr Radley approached the plaintiff, calmed her and encouraged her to replace the helmet to its proper position and not to move it. According to Ms Hutchings she assisted Mr Radley to settle the plaintiff. 2. Ms Hutchings did not recall the plaintiff hitting herself on the head when she was unsettled and trying to remove her helmet but I accept Ms Sharp's evidence that that occurred. Ms Sharp said that it was "horrible to see" and she agreed with counsel's suggestion that it was "a very strong violent punch to the head". Reports of treating doctors from dates before September 2019 show that self harming of this nature was commonly the manner in which the plaintiff would express emotional upset. 3. In oral evidence Ms Hutchings said that one of the teachers came close while Mr Radley and herself were settling the plaintiff and stopping her from removing her helmet. Ms Hutchings said that as the group moved off again to continue the ride, the teacher walked alongside the plaintiff in the position of a second side walker. To Ms Hutchings' recollection, the teacher walked on the right-hand side of the horse and Mr Radley walked on the left. 4. Ms Sharp's statement made on 29 July 2024 for the purpose of this proceeding contains the following: I therefore instructed additional volunteers to assist as side walkers to help control Breanne [the plaintiff] and calm her down. The horse was also stopped and remained stationary during this time. There were two volunteers and two teachers around the horse (two on each side) during this period to restrain her and put her helmet back on. Breanne subsequently calmed down and relaxed. The ride then continued with two people on each side of the horse to monitor and assist Breanne if needed. After a period of time, I observed Breanne had calmed down such that she was riding in the way she normally rode. I therefore reduced the number of side walkers back to one. The other side walkers remained within the riding group. 1. Ms Brown said in her statement of 13 December 2023 that early in the activity on 12 September 2019 she saw the plaintiff "fiddling with the helmet", which she attributed to "sensory sensations Breanne was experiencing". She said, "That was not unusual". In respect of the first part of the walk, Ms Brown described the following: I again observed Breanne feeling her helmet. I recall saying to Breanne words to the effect, "Hands down, leave it alone, you need to keep it on". Whenever I said these words, Breanne stopped touching her helmet. Whilst on the trail walk Breanne may have felt her helmet on two other occasions. Each time I would say the same things to Breanne, and she stopped touching her helmet again. 1. As regards the response of Ms Sharp and the volunteers to the plaintiff's unsettled behaviour when the group reached the eastern edge of the cleared paddock, Ms Brown recalled nothing more than "a discussion about Breanne fiddling with her helmet". Ms Brown did not see the plaintiff attempt to push the helmet off her head – although that undoubtedly occurred. There are photographs of it. In oral evidence Ms Brown did not recall a scene of four people around the plaintiff's horse trying to settle her. Ms Brown denied that she was directed to take up a position as a second side walker for the continuation of the ride. She did not recall any other person taking up such a position. 2. In oral evidence Ms Gleeson only recalled one occasion during the ride when the plaintiff touched her helmet and slipped the chinstrap off, after which the plaintiff settled down. Ms Gleeson had no recollection of others "trying to restrain Breanne to stop her taking her helmet off". Nor did she recall having been asked to walk alongside the plaintiff's horse after the disturbance concerning the helmet. She did not recall any other person acting as a second side walker after that event. 3. I am satisfied that the plaintiff became agitated about her helmet at a point along the course of the ride towards the eastern edge of the cleared paddock. That was about 20 minutes into the activity. I accept Ms Sharp's evidence that the plaintiff hit herself, although that was a brief event. Brevity of that manifestation of the plaintiff's emotional disturbance explains why it would not have been seen by Ms Hutchings, whose duties required her to be facing forward, or by Ms Brown or Ms Gleeson, who had not assumed the same level of responsibility as Ms Sharp to maintain a close watch on the riders for any sign of becoming unsettled. 4. I also accept that all three horses were stopped while the plaintiff was calmed down. Photographs at pp 331 and 332 of the court book record the stoppage. Ms Sharp is mistaken in saying that two volunteers and two teachers gathered around the horse "(two on each side) … to restrain her and put her helmet back on". In a statement made on 16 September 2019 she said: It took four of us to get her helmet back on and to keep it on. We required 2 people to hold her hands until she settled, this lasted approx. 2 min. If there were four people at any time next to the plaintiff's stationary horse, it could only have been Ms Hutchings, Mr Radley, Ms Sharp and the walker from the second horse that had also come to a standstill. I accept the evidence of Ms Brown and Ms Gleeson that they did not approach the plaintiff's horse to take part in physically settling her. There is no evidence that any additional volunteers, beyond the three leaders and two side walkers, accompanied the group through the paddock. 1. In Ms Sharp's statement of 16 September 2019 she described what occurred after the plaintiff had settled down, as follows: At this point we returned to her normal lesson procedure; leader and one side walker. She was happy as she was settled I felt it best for her to continue with her lesson. 1. Having regard to that almost contemporaneous account I do not accept Ms Sharp's more recent statement that "the ride then continued with two people on each side of the horse …". That part of the statement may be poorly expressed and it is possible that Ms Sharp intended to convey that the ride continued with two side walkers, one on either side. However, even on that understanding I would not regard Ms Sharp's recollection as accurate. 2. In oral evidence Ms Hutchings expressly denied that either of the teachers was directed to act as a second side walker. She said that after the stoppage to secure the plaintiff's helmet one of the teachers simply stepped in and acted as a second side walker, initially only as far as the creek, which was a short distance further on along the riding trail. I accept Ms Brown's denial that she was directed to proceed as a side walker. After the disturbance over the helmet, Ms Brown may have walked for a short while somewhat closer to the plaintiff's horse than where she had positioned herself beforehand. Ms Hutchings may have mistakenly assumed that Ms Brown had assumed the responsibilities of a side walker but I do not accept that she had. Ms Gleeson's evidence was that she did not recall any direction having been given to herself to act as a side walker. In my view Ms Gleeson would recall if she had been so directed and if she had then taken on that role. 3. In summary I find that after the plaintiff had been settled with respect to her helmet, Ms Hutchings continued to lead her horse and Mr Radley continued as the only side walker, on the plaintiff's right. Ms Brown may have walked to the plaintiff's left, as far as the creek, but not under direction to act as a side walker. Continuance of the ride to the west side of the arena 1. In a statement made on 15 October 2019 Ms Hutchings said that after the stoppage relating to the plaintiff's helmet, one of the teachers "started walking with us" but when the group reached the creek the teacher "then stepped back away from us as [the] path area narrowed". There is a gate near the southern end of the covered arena. The gate leads into a cleared paddock to the west of the arena, with a strip of vegetation growing alongside the full length of the western wall of the arena shed. The vegetated area is referred to as the Sensory Garden. In oral evidence Ms Hutchings said that it took about 30 minutes for the group to walk from the location where they had stopped to settle the plaintiff up to the gate at the southern end of the arena. The horses and riders were to pass through that gate and enter the Sensory Garden. 2. Ms Hutchings also said that, at some point along the trail, she was rejoined by the teacher whom she recalled having accompanied the plaintiff's horse as far as the creek. She said that, from there on, to the gate, "I don't know if she was just walking beside [plaintiff] or acting as a side walker". Ms Hutchings said that the teacher walked beside the plaintiff's horse for at least the last 20 minutes as the group progressed to the gate into the Sensory Garden. She said that just as they got to the gate, which someone else had opened, a female voice called out for her to stop the plaintiff's horse because the plaintiff's left foot had come out of the stirrup and it had to be replaced. Ms Hutchings inferred that it must have been one of the teachers who called out to her because it was not Mr Radley's voice and, in any event, his practice was to approach a horse and reposition a rider's foot without requiring a stop. 3. In Ms Sharp's statement of 16 September 2019 she said that after the stop for the plaintiff to settle down with respect to her helmet, the group "rode for 15-20 mins, possibly more, without incident". She said that in that latter section of the ride the plaintiff "was settled and happy". In a statement of 29 July 2024 Ms Sharp said that the duration of that section of the ride was around 30 minutes, during which the plaintiff "was riding the way she normally did and there were no further incidents". 4. In oral evidence Ms Sharp said that the plaintiff became sufficiently settled over this latter part of the trail ride for Ms Sharp to reduce the number of side walkers back to one. I am satisfied that Ms Sharp is mistaken in thinking that she ever directed a person, who could only have been one of the teachers, to act as a second side walker. Hence there was no occasion for her to reduce the number. Ms Sharp did not recall whether or not either of the plaintiff's feet came out of the stirrups on the latter section of the ride, either accidentally or by deliberate action of the plaintiff. 5. In oral evidence neither Ms Brown nor Ms Gleeson had any recollection of the plaintiff taking a foot out of its stirrup during the latter stage of the ride up to the gate into the Sensory Garden. They had no recollection of a side walker having had to replace either of the plaintiff's feet into its stirrup on that section. I am not satisfied that any of that occurred. I conclude that Ms Hutchings, who was the only witness to recall any removal of either of the plaintiff's feet from a stirrup on the way to the gate, was mistaken in that aspect of her evidence. The fall in the Sensory Garden 1. It was common ground amongst all the witnesses that once through the gate into the Sensory Garden, the plaintiff's horse led the way and was stopped at intervals to enable the plaintiff to play with various mechanisms that were set up along the edge of the vegetation. There was a wheel that could be rotated in the horizontal plane, a water feature, some small percussion instruments and a bell. None of the counsel who questioned Ms Brown made any challenge to a diagram that she prepared depicting the relevant positions of horses and people in the garden. At the time when the plaintiff fell off her mount, she was adjacent to the bell, which was at the north end. The next horse was less than one quarter of the length of the garden behind the plaintiff, perhaps 10-15 m back. Ms Brown was standing abreast of the second horse, 5-10 m off to the west, further away from the edge of the garden. The third horse was another 10-15 m back and Ms Sharp was abreast of that horse, also approximately 5-10 m to the west. 2. Ms Hutchings gave a brief description of the plaintiff's fall for the purposes of an incident form that the first defendant required the coach and volunteers to complete on the day of the accident. As previously mentioned she made a further statement on 15 October 2019 and then an evidentiary statement for the purposes of the proceedings on 12 December 2023. In none of those accounts did she identify from which side of the horse the plaintiff fell. When Ms Hutchings gave evidence she said that the fall was to the plaintiff's right and that at the time Mr Radley was walking on the left of the horse, immediately behind Ms Hutchings. That account is contradicted by each of the other witnesses who gave oral evidence. They all said that Mr Radley was to the right of the plaintiff's horse and that she fell to the left. I accept their evidence. In view of the fact that Ms Hutchings did not specify which way the plaintiff fell until she gave oral evidence five years after the event, I regard her recollection at that time as unreliable and mistaken. 3. In Ms Sharp's statement of 16 September 2019 she described the event in the following terms: I was standing in the middle of the area and noticed Breanne's left foot had come out of her stirrup. I started to make my way to her calling out to her side walker as I went, to let him know as it was on the opposite side to which he was walking. Just as I have called out ["she has foot out"] the horse has turned to the right at a very slow walk to head towards the [northern, exit] gate. It was at this time Breanne slid slowly and gently off the left side landing on her left knee and left thigh. There were no unsettled or jerky movements from either Breanne or her horse whilst this was happening. 1. I accept that evidence. Ms Sharp gave substantially the same account in her evidentiary statement of 29 July 2024, where she added: "I do not consider that Breanne's foot came out of the stirrup due to her misbehaving or being upset". Ms Brown gave a very similar description of the fall although she did not perceive that the horse commenced to walk, only that it shifted slightly in its stance. Ms Gleeson's account was also very similar. It was not clear on the evidence exactly where Ms Gleeson was standing, or what line of sight she had, at the time. 2. The fall caused the plaintiff's right femoral neck fracture, which was diagnosed at the John Hunter Hospital on the evening of 12 September 2019. Assessment of the plaintiff's safety requirements Information supplied to the first defendant with the application in May 2019 1. The documents completed by the plaintiff's mother in early May 2019 included an Annual Rider Registration Form on which the letter "Y" was circled to indicate that the plaintiff was "New to RDA this year". On the same form the plaintiff's mother marked the following Disability Groupings as applicable: A Intellectual Disability B Physical Disability C Cerebral Palsy F Autism I Multiple Disabilities 1. A form entitled "Medical Information" was completed and signed by the plaintiff's treating general practitioner, Dr J Jyoti. Where the form required the doctor to indicate the "level of physical support required", with a choice of high, medium or low, she circled the word "High". The doctor circled the following items on a checklist to confirm that they applied to the plaintiff: 25 Use of splints/braces/corsets/prostheses 28 Impaired Intellectual function Developmental Delay Specific Learning Difficulties Autism Behavioural Issues 1. In a section of the form for provision of additional detail the doctor wrote: Intellectual Delay function 12 mth level. Spastic diplegia (lower limbs - AFOs used). 1. Spastic diplegia is a form of cerebral palsy in which abnormal messaging from the brain causes increased muscle tone in the legs, leading to spasticity; that is, persistent muscle tightness and exaggerated reflexes. That general medical information was recorded in a section of the first defendant's manual, at p 208, where various types of disabilities were explained for the benefit of coaches, volunteers and others. "AFO" stands for Ankle Foot Orthotics, which are biomechanical devices for stabilising ankle joints and improving gait. Other medical evidence in the case showed that during 2019 the plaintiff was receiving Botox injections to relax the muscles of her lower limbs. She required ankle casts immediately after receiving the injections. After removal of the casts, she required AFOs to overcome difficulty with walking. 2. The first defendant's pro forma medical information document made provision for the following statement to be signed by the medical practitioner which Dr Jyoti did sign on 9 May 2019: Over and above the normal risks of such activities, it seems reasonable, in my opinion, for the above named person to take part as an active participant in RDA (NSW) Raymond Terrace & Lower Hunter (RT & LH) Centre activities. In this regard, I understand that an RDA (NSW) RT & LH Centre Coach or other appropriate person(s) associated with RDA (NSW) RT & LH Centre, will assess the suitability of activities based on the medical advice given above. Additional information about the plaintiff's disabilities 1. In her statement dated 2 February 2023 the plaintiff's mother assessed that the plaintiff "functions at a 6-12 month-old level of understanding" and that her doctors have advised "she will never improve". Ms Stewart states that the plaintiff "speaks no words, just noises and communicates with happy sounds/vocalisations or crying". She was clearly non-verbal at the date of the accident, which was more than three years before Ms Stewart's statement was made. As at February 2023 Ms Stewart said that the plaintiff was "only just learning how to understand very simple commands, such as 'arms up', 'sit down', 'stand-up', 'stay', 'stop' etc". 2. According to the statement, the plaintiff is "not very compliant with following her carer's directions and will almost always require physical prompting or help from the carer to comply with the instruction. … [An] instruction to 'keep your feet on the pedals' of her tricycle would be above [the plaintiff's] ability to comply with; one would need to physically strap her feet on the pedals to keep them in place". Ms Stewart states that the plaintiff's attention span is very short and that she is unable to attend to tasks for more than a few minutes before becoming distracted: "[If] her hands are placed on the handlebars of her tricycle to hold on, it will only be a matter of minutes, at best, before she gets distracted and stops holding on and just plays with her hair". Those behavioural characteristics are described in February 2023 but I readily infer that they would have been applicable in September 2019 as there is no suggestion in the evidence that the plaintiff has deteriorated in the relevant respects over the intervening period. 3. Ms Stewart described the plaintiff's tendencies when riding her tricycle with reference to the time before the accident. She said that the plaintiff "often tended to lean to the side and would fall off if not for the tricycle's seatbelt across her chest, large pommel seat and backrest that extended up to below her armpits". The plaintiff would need to be re-straightened approximately every 50 m and there was a noticeable shake in her legs when riding the adapted tricycle. 4. Medical reports of Dr Shorter, paediatrician, dated 16 January 2019 and 15 May 2019 record that the plaintiff exhibited very unpredictable, unsettled and difficult behaviour. During an examination on 15 May 2018 she was "extremely agitated with screaming, headbanging and self harming with her hitting herself repeatedly in the head with her iPad and mother's phone. She was poorly compliant with any physical assessment". The doctor reported that medications had not been successful in moderating her behaviour. According to reports of Dr H Burnett, rehabilitation specialist, dated 15 and 28 July 2019, the plaintiff's parents described her as "calmer in general over recent months". The following physical complications were identified in the report of 15 July: She tended to sit in her wheelchair with her pelvis thrust forward and tilted posteriorly and her neck in a flexed position. She has exaggerated kyphosis over the cervicothoracic junction [increased front-to-back curvature of the spine causing excessive forward rounding of the upper back] as well as a mild flexible long C-curve scoliosis [sideways curvature of the spine] convex to the right. 1. The additional information about the plaintiff's intellectual, behavioural and physical disabilities as summarised in the above paragraphs was not provided on the application forms in May 2019. Nor was it otherwise expressly communicated to the first defendant prior to her being accepted for the riding sessions or at any time up to 12 September 2019. Assessment by coach's observations 1. Ms King said that a coach assigned to an activity at any of the first defendant's centres "has full authority for the manner in which the riding sessions are performed". She said that before a session begins the coach is required to assess the riders and to assign volunteers to various roles according to the requirements of the rider and the abilities of the volunteers. 2. Ms Sharp completed the first defendant's coach training program over 12 months and by 2016 she was accredited in accordance with the organisation's assessment regime. By the date of the accident Ms Sharp had been employed by the first defendant in the capacity of coach at the Irrawang Centre for more than three years, working on a casual basis for 10-20 hours per week. I accept that Ms Sharp read the completed application forms in relation to the plaintiff, including the Medical Information, before the plaintiff's first riding session on 7 June 2019. Ms Sharp considered the information that I have quoted above from the application forms to be important but she regarded it as only "the start" in her determination of the plaintiff's abilities for the activity and in deciding what provisions should be made for her care and safety while riding. 3. Ms Sharp said that she did not speak to the plaintiff's teachers from the school as a distinct preliminary means of gathering information about the child's capabilities and limitations. Rather, she spoke to the teachers who accompanied the plaintiff to the riding sessions "as we went along". She gave this answer: A. [They] were there and that was all part of our day-to-day stuff. I can't get all the information on somebody in five minutes. … [We] just gradually build up our … relationship and we work through things. 1. In the following answers Ms Sharp explained what was important to her in making an assessment of disabled riders, including the plaintiff: A. For me it's to physically be with the person to assess the person personally. A. Their physical, emotional, their strength, how they react to me and to the area, to everything. It's a full body, a full person evaluation, to the best I can do. Q. Did you only do that once for each child? A. I do it constantly. […] Q. On the first occasion when the group turned up with Breanne as one of them, you made some physical assessment or observation of her behaviour and so on before she got on a horse? A. Yes. Yes. Q. Then she got a horse and you continued to observe her for a bit? A. Constantly until the last time I saw her. The assessment doesn't stop until they're not in, in front of you any more. 1. In determining safety requirements for the plaintiff Ms Sharp took into account that she was non-verbal and could not readily communicate what she was feeling, such as her level of comfort, confidence or concentration. Ms Sharp gave the following evidence as to how she gauged the plaintiff's state of mind: A. […] often the teachers would be with me and we'd be discussing all the riders and, and when a behaviour pops up I will then speak to them and say, you know, "Can you help me decipher that?" […] A. I always knew when she wasn't happy. Her sound was different. I didn't see her in pain before that day. […] Q. How did she tell you that [ie feeling discomfort]? A. Well, because she showed it in her expression and her, the way she made a noise and it wasn't a happy sound, it was a discomfort sound. Q. When did you first come across that? A. I'm not sure, possibly when she, the first ride cause it was very emotional the first ride. It always is. They go through lots of different emotions cause they're unsure of their - they don't know what's going on and you learn to, you learn to, to understand their body language and their, their vocals quite-- 1. Ms Sharp said that in making a decision about whether a rider should have side walkers and, if so, how many, she would take into account the rider's disabilities and how the rider would sit on a horse. As with other riders, in the plaintiff's case the choice of horse was made and the adjustment of the saddle and stirrups were carried out to "have her in the position as much is possible [that] she will be at the most comfort for her". I understand that evidence in the sense that those choices and adjustments were made at the commencement of each riding session. 2. In her statement dated 29 July 2024 Ms Sharp said this: 4 When determining how many side walkers should be assigned to a rider, I will assess the rider's disabilities, how the rider sits on a horse, how the rider reacts when the horse moves and how the rider takes instruction. I will also continually observe the rider during each ride to assess their progress. 5 When Breanne Cook first started participating in the RDA riding program, she was assigned two side walkers to assist her. 6 Over the course of subsequent sessions and prior to 12 September 2019, I observed that Breanne was able to sit on the horse without extra help and she had good balance. Once she was comfortable on the horse she rarely moved. For the majority of the time that she rode, her behaviour was also great. 7 As a result of my observations, I assigned one side walker and one horse leader to assist Breanne during subsequent riding lessons. 8 On 12 September 2019, I assigned one leader and one side walker to assist Breanne. I note that when Breanne attended the centre, she was happy and smiling. The leader was [Ms Anne Hutchings] and side walker was Paul Radley. I assigned Paul because he was one of the more experienced side walkers present that day and, from my observations on previous rides, appeared to have a good connection with Breanne. 16 I disagree with the suggestion that Breanne required two side walkers at all times while participating in the riding sessions. She was generally very stable on the horse and behaved well. 1. In oral evidence Ms Sharp said that, based on her ongoing observations of the plaintiff from one session to the next and during sessions, she from time to time revised her assessment of whether the plaintiff needed one or two side walkers. She gave the following answers: Q. What sort of things might you change as a result of your observation of riders for the day? A. Behaviour, how they were on the day, how their bodies were functioning on the day, the horses, the weather, how the volunteers were, how I was, everything and everything you could think of, were the mozzies bad that day. Q. In response to factoring in all those parameters, what sort of things might you change? A. How many people are with each person, horse, how many - you know, like if the rider was usually needing two side walkers and they came in that day and they were great and they were functioning well, they might not need two side walkers. They might not need any and then somebody who doesn't normally need any, sometimes may need two or three. It just depends. There's so many different factors. 1. Consistently with that evidence, there were tendered photographs of the plaintiff riding at the first defendant's centre on occasions prior to 12 September 2019 sometimes with only one side walker and at other times with two. There was no evidence that she suffered a fall on any of those prior occasions. 2. Over the course of the eight riding sessions prior to 12 September 2019 Ms Sharp had become aware that the plaintiff's ability to ride and to cooperate in the activity was unpredictably variable. Ms Sharp gave these answers: A. She was nervous to start with, but once she sat, once we got her saddle and her horse right, she sat very still in the saddle while she was happy. Q. When you say when you got the horse and saddle right, is his Honour to understand, once you've got the horse, the saddle and the stirrups right? A. Yeah, once the combination is all set right. Q. When she was happy she sat well? A. She really did, yes. Q. When she was unhappy, then you had problems. Is that right? A. Sometimes, yes. That's why she had the toy. That was a big part of the toy. It kept her calm. Q. But even with the toy, there were occasions when she was unhappy and she was difficult. Is that right? A. Yeah. Q. That would be a circumstance which was unpredictable? A. Yeah. Q. Did you notice that those sort of circumstances happened in the second half of the ride rather than the first half of the ride normally? A. It could have been anytime. I can't say whether it was always the first half or second half. Q. So it was difficult to predict … if she was going to become unhappy and is it the case that she would appear to become unhappy for no particular reason? A. I feel like there would have been - there was always a reason. It was a matter of us working out what the reason was. 1. In cross-examination Ms Sharp was reminded of her evidence that she saw the plaintiff's left foot out of its stirrup shortly before she fell and that she called out to Mr Radley to come around the horse and help put the foot back in. Ms Sharp gave the following answers about that: Q. Why would you do that? A. Well, because she needed those stirrups. Q. What for? A. To keep her balanced. Not every rider needs stirrups, but she did. Q. Because you were concerned that, with her foot out of the stirrup, she was liable to fall? A. She was, yeah, if she was leaning that way slightly when the foot came out, it sort of tugged her down slightly. 1. Ms Sharp said she did not recall any previous riding session during which the plaintiff had become upset and/or had ceased to be comfortable and calm on the horse to such a degree that it had been necessary to terminate her ride. Ms Sharp said that if that had occurred, the plaintiff would not have been dismounted on the walking trail or in the paddock. I understand that to mean to mean that if the plaintiff's ride was to be terminated her horse would have to have been led back to the covered arena by the shortest available route, with side walkers securing her in the saddle, so that she could be taken off the horse using the mounting platform. 2. On the other hand, Ms Hutchings thought there had been two or three occasions of terminating the plaintiff's ride and that it had been the coach's decision each time. It is not clear from Ms Hutchings' evidence whether she meant to say that the plaintiff had been dismounted in the paddock on those occasions. If she did mean to say that, I am satisfied that she was mistaken, in view of Ms Sharp's evidence about the procedure that would be adopted. 3. It is not necessary to determine whether there actually were prior instances of the plaintiff's riding session being cut short. It is sufficient for the Court's determination of the issue of negligence that I accept, generally, Ms Hutchings confirmatory evidence that the plaintiff's behaviour on horseback was unpredictably inconsistent. She gave the following answers: Q. … [What] did you know of Breanne's behaviour on a horse? A. Fidgety. Like playing with, taking her feet out of stirrups, playing with her helmet. Sometimes she was like that, other times she was not. She was happy. She - well I've noticed in most of those photos she didn't have the reins in her hand, but she used to hang onto the reins. […] Q. Was it common - is what you're trying to tell his Honour is that her behaviour was a bit unpredictable as to what she'd do? A. Yes. Q. She couldn't speak, you knew that? A. She - she used to like to sing. Q. But she couldn't speak and give you sensible sentences … about what was going on? A. No. A. You had to keep an eye on her for that sort of thing. […] A. But as her riding got better and she'd like - she, it was like she went through phases. She'd be good, or she'd be bad for a period of time, and then she'd go back to being good again. Yeah. Q. And that could be within a single ride, is that right? A. Sometimes, yeah. But not all the time. Like some days she would be really good for a couple of weeks. On the day of the riding she'd be good. Because there's times where I walked her. Q. How many times do you think you walked her? A. I think I walked her nearly every lesson she had with us when I was there. […] Q. There were previous occasions where Breanne had become upset during a ride? A. Yes, there had been. And there had been times when we had stopped the ride and taken her off. Q. How many times was that? A. Two at the most. Two, possibly three. I, in, like in the whole … time of that season. ... […] A. If the coach has been watching her for a while and has seen her playing up, or if I've asked for help, they will keep an extra eye on her. And if there's too much trouble, they'll stop the ride and dismount her. Q. What sort of trouble did you see when the coach intervened and decided to stop the ride? A. Like when she just wouldn't settle down, and she'd be like - like you said she can't talk, but she could scream. Q. What about when she refused to follow instruction by taking her feet out of the stirrups all the time? Would that cause her to stop the ride? A. No, because nine times out of ten after putting them back in three or four times, she'd had enough of that game. Q. But she might continue to take her feet out of the stirrups, is that right? A. Yes, and then her riding would be stopped. Q. Yes. So again, this is an indication of the sort of unpredictability … of the behaviour of this child, and you had to keep an extra special eye on her, correct? A. Yes. […] 1. Further evidence from Ms Hutchings concerning the plaintiff's unpredictability was as follows: Q. You talked about the previous occasions when Breanne had become upset and the ride had ended early. Did that normally happen towards the end of a ride? A. Sometimes in the middle, sometimes closer to the end. Q. So did you form a view that she'd get upset from the middle towards the end of the ride because she was getting tired? A. Possibly, yes. Q. Was there any sort of warning to you that she was just starting to get upset or difficult or did it just come on? A. Before the accident? Q. Yes, on the other occasions that you had? A. No, it just come on. She just - some - she'd be good and then she'd just be like she'd had enough I'd say, yeah. Q. That's when she'd start to misbehave? A. Yeah. Q. Would she start to verbally complain, like make noise? A. Not really, no. Q. Would she start to fidget and-- A. Just fidget. Q. --take her foot out the stirrups and so forth? A. Yeah. 1. In re-examination Ms Hutchings identified a photograph taken on the plaintiff's first ride, on 7 June 2019, in which one of the side walkers had placed his hand on the plaintiff's right hip "to nudge her back so she was in the middle of the saddle". She gave the following further answers: Q. After this first occasion what did you observe about Breanne's balance on a horse? A. Normally she was really good with her balance on the horse once she was sitting in the right position and she kept her feet in the stirrups. Q. You were asked some questions about her being fidgety and keeping her feet in the stirrups; do you recall that? A. Mm. Q. You said that from time to time she would kick her feet out of the stirrups? A. She wouldn't kick. She's just pull them out. It's easy to slide your feet out. Q. When she did pull her feet out of the stirrups did you have any concern about Breanne's balance? WITNESS: If I was a side walker I would have had [concern] about it. I would have made sure that she was sitting properly and put her feet back in the stirrups but since I was leading I have to rely on my side walkers to balance her in. Q. Were there occasions when you were leading Breanne and there was one side walker and her foot came out of the stirrup on the side opposite where the side walker was? A. On my side, cause he would have, they would have been on the right and I'd be on the left. Well, I would hope, and nine times out of ten if there was horse behind me whoever was leading that horse would tell me that her foot was out and I would stop and put the foot back in. Ms Hutchings said that depending on how close the side walker was, the rider's foot could be replaced in the stirrup quickly. 1. Ms King said that "it is not a mandatory requirement that a rider have their feet in the stirrups" and that if a rider's foot should come out that would not necessarily cause immediate alarm or anticipation of a fall. Usually, the coach or a volunteer would simply put the foot back in the stirrup "with little fuss" but if a particular rider was known to kick his or her feet out of the stirrups repeatedly it would be common for the coach to assign a side walker to put the feet back each time. 2. Ms King said it is not uncommon to allow a disabled child to carry an object while riding, including in a situation where the horse is being led as was the case in the plaintiff's riding sessions. She said that "carrying objects can be helpful for particularly fidgety riders" and "it can be beneficial to give this type of rider something to hold to distract them". 3. The plaintiff tendered an expert report of Ms Pearson-Adams, an expert horsewoman and riding coach. Whilst Ms Pearson-Adams' expertise in her field is undoubted, it does not extend to the conduct of riding sessions for profoundly disabled children. Consequently, the report does not assist the Court in determining what precautions for the plaintiff's safety ought to have been taken by the first defendant in discharge of its duty of care. Ms Pearson-Adams described the use of a monkey strap as an aid to stability for horse riders. It is a strap that can be attached to D-rings on the forward part of the saddle, to sit laterally just in front of the pommel. Its purpose is to provide a handhold with which the rider can steady himself or herself if necessary. There was no monkey strap fitted to the plaintiff's saddle on the day the accident. First defendant's reasons for minimising side walkers 1. In her statement dated 11 December 2023 Ms King said this: [If] a person can hold their body upright but is likely to have difficulty understanding of following instructions, then a side walker would likely be assigned to act as a "check-in" person for the rider. Two side walkers are likely to be assigned to a person who has difficulty holding the upper body upright and requires physical assistance to do so throughout the ride. … The assigning of side walkers to a rider has to be balanced against one of the fundamental purposes of the riding sessions which is to make the riders feel as independent as possible to improve their confidence. Side walkers may therefore also be instructed by the coach as to the level of assistance and distance to be maintained from the rider. [Emphasis added] 1. In a similar vein, Ms Sharp gave the following answer to a question about whether she would have considered it necessary to appoint two side walkers for a riding session after a prior occasion of the plaintiff having had to be removed during a ride: A. At the time she would have needed two side walkers, but if she proved to be improving and being comfortable, then those side walkers get reduced to enhance her independence. Conclusion on breach of duty by the first defendant 1. All the witnesses who gave evidence for the defendants in this case are people of great kindness who have dedicated themselves to enhancing the lives of disabled children. Ms Brown and Ms Gleeson have chosen a specialty in the teaching profession that calls for immense patience and compassion. Their willingness, and that of the school principal, Ms Tracey Rapson, to facilitate participation by the plaintiff and her peers in horse riding at Raymond Terrace says a great deal about their imaginative and thoughtful approach to their work, their deeply caring professionalism and their commitment to the children in their charge. 2. Ms Sharp is a capable horsewoman who has been willing to devote her skill to bringing the pleasure of an activity that she loves within reach of disabled children, who could never experience it without the help of someone such as herself. The kindness and generosity of the volunteers, Ms Hutchings, Mr Radley and many others like them in the first defendant's organisation, is self-evident. The care and concern of Ms Sharp and Ms Hutchings for the plaintiff was apparent in the way in which they gave their evidence. Both were greatly affected by the accident. 3. In those circumstances it is a most unenviable duty to have to determine whether the care taken by the first defendant on 12 September 2019 to avoid the risk of injury to the plaintiff by falling from her horse was less than reasonable. Despite the best intentions, goodwill and thoroughness of Ms Sharp, I regret that I am driven to the conclusion that reasonable care required the provision of two side walkers at all times, in close proximity to the plaintiff. I find that the plaintiff's injury resulted from failure to take that reasonable precaution. 4. The plaintiff alleged a long list of other particulars of negligence of the first defendant in par 34 of the Third Amended Statement of Claim. As is common in such pleadings, most of those are superfluous argumentative generalities rather than particulars. The remainder, apart from the failure to provide two side walkers, are not made out. 5. I reject the first defendant's submission that the absence of two side walkers was not causative of the fall and the injury. The first defendant submits that the fall occurred so quickly that side walkers could not have moved to arrest it. In my view reasonable care required side walkers to accompany the plaintiff's mount in close enough proximity to be able to reach her within seconds to replace her foot in its stirrup and/or to restore or maintain her upright posture. They needed to be close enough to act in anticipation of a fall if the plaintiff showed signs of loss of balance. Preventive action by a side walker, if positioned appropriately close to the plaintiff, could include placing a hand on the pommel of the saddle, over the top of the rider's thigh, whereby the volunteer's arm would provide resistance to lateral movement. 6. The riding sessions for pupils of the Hunter River Community School that were provided by personnel of the first defendant constituted "community work" within the meaning of s 60 of the Civil Liability Act 2002 (NSW). However, Ms Sharp did not enjoy immunity from civil liability under s 61 because she was an employed coach rather than a "volunteer", as defined in s 60. The plaintiff seeks to hold the first defendant liable vicariously for Ms Sharp's acts and omissions: par 24A of the pleading. As Ms Sharp is not immune from liability under s 61, s 3C of the Act does not operate to exclude the vicarious liability of the first defendant. Counsel for the first defendant accepted at the outset of the hearing that, on the authority of Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263, I am bound to hold that the first defendant itself cannot be regarded as a volunteer for the purposes of ss 60 and 61 and that the organisation does not enjoy immunity by direct operation of those sections. 7. The primary factor in my conclusion as to negligence is the plaintiff's intellectual function, being no more than that of a 12 month old, as a result of which she was unable to express herself or to follow instructions. With respect to acting upon instructions, I take account of Ms Brown's evidence that the plaintiff responded appropriately on 12 September 2019 when Ms Brown told her to leave her helmet alone: see [24] above. In the context of the whole of the evidence about the plaintiff's capabilities, that responsiveness must be regarded as highly exceptional. The evidence shows that more typically the plaintiff could not have been expected reliably to keep both feet in the stirrups pursuant to instruction to that effect, or to replace a foot in a stirrup on command if it should slip out. 8. As Ms Sharp explained, the plaintiff needed her feet in the stirrups for stability and balance: see [64] above. Her intellectual function was such that loss of stirrup security could not be corrected by calling out an instruction from metres away. It was necessary that a volunteer be near to the plaintiff to replace a slipped foot. The plaintiff was vulnerable to a fall whenever a foot was not correctly placed. 9. It has not been established that the absence of a monkey strap constituted a failure to take reasonable care. I accept Ms Hutchings evidence that the plaintiff would have had the dexterity to hold such a strap but at the cognitive level of a 12 month old I am not satisfied that she would have been capable of using it to effect. The evidence does not satisfy me that the plaintiff would have been able to sense her loss of footing in the stirrup, or her loss of balance from the dynamic motion of being on horseback, with sufficient speed and acuity to compute that she needed to grasp the strap. Nor would the plaintiff have been able to respond to a call by the coach, from a distance, that she should grasp the monkey strap – for example, if the coach observed signs of faltering balance. 10. The plaintiff's lack of intellectual development manifested itself, also, in her lack of composure and tendency to descend rapidly into agitation and distress. The evidence amply demonstrates that she was not able to convey the cause of such upsets or to receive and act upon oral reassurance that might be offered by the coach. The evidence also shows that when the plaintiff became upset she lost her concentration on the need to keep her feet in the stirrups and to maintain a secure seat in the saddle and correct posture and balance. The unpredictability of these upsets and the lack of communication by which she could be calmed with spoken words from an attentive coach shows that it was essential to have side walkers in close proximity who could maintain the plaintiff's safety in the saddle by direct physical means, with swift reaction. Social utility 1. In its defence filed on 6 May 2024 the first defendant pleaded that if there was a risk posed to the plaintiff by the riding activity it was an inherent risk within the meaning of s 5I of the Civil Liability Act 2002 (NSW) (par 22(e)). It further pleaded that no duty of care was owed to the plaintiff because the risk of a fall was an obvious risk of a dangerous recreational activity within s 5L of the Civil Liability Act (par 23), that the plaintiff voluntarily consented to accept the risk of injury to herself (par 24) and that no duty was owed because a risk warning had been given within the meaning of s 5M (par 25). Those defensive allegations were abandoned at the hearing. Instead, the first defendant contended as follows: [Section] 5B(2)(d) Civil Liability Act 2002, namely, the social utility of the activity that creates the risk of harm is of critical significance, as is the distinction between an error of judgment and negligence, in the context that […] All those acting under the auspices of the first defendant were either unpaid volunteers giving up their own time or, if qualified coaches, paid a nominal amount to help disabled people, not offering from the provision of commercial recreational activities. 1. Section 5B of the Civil Liability Act is in the following terms: Division 2 Duty of care 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)— (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 1. For the purposes of s 5B(1)(a) and (b), I am satisfied that the risk of the plaintiff suffering injury by falling from her horse was foreseeable and significant because she needed to keep her feet in the stirrups to maintain balance but she was unable to fulfil that requirement reliably by reason of her low intellectual function, her distractibility and impulsivity, her tendency to become agitated and her inability to implement oral instructions. For the purposes of sub-ss (1)(c) and (2)(a)-(c) of s 5B, I am satisfied that a reasonable person in the position of the first defendant would have taken the precaution of assigning two side walkers and directing them to remain in close proximity to the plaintiff whenever she was on horseback. In the absence of that precaution the probability of the plaintiff falling was high, because of her aforementioned disabilities. If she were to fall, there was a likelihood of her suffering serious harm such as a bone fracture. The burden of the suggested precaution was low. 2. As to the way in which the Court is to take into account the consideration of social utility prescribed in s 5B(2)(d), guidance is provided in the judgment of Tobias JA (Beazley JA agreeing) in Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63. The appellant in that case suffered a spinal injury as a result of attempting to perform an exercise under the direction of a personal trainer employed at the respondent's gymnasium. The primary judge was not satisfied that a reasonable person in the position of the personal trainer would have taken the precaution of not requiring the plaintiff to perform the particular exercise. Upholding the appeal, Tobias JA found that there was a breach of duty. His Honour addressed the social utility consideration at [127]-[130] of his judgment, as follows: [127] At [93] of her reasons, the primary judge recorded a submission on behalf of the respondent evoking [scil invoking] s 5B(2)(d) to the effect that the operation of personal training studios was an activity of high social utility. She then recorded the submission that gyms were meeting places, progenitors of community health, designed to keep burgeoning health costs down and similar general statements as to their general social utility. [128] At [94] of her reasons, her Honour remarked that those considerations were relevant to the present case. She continued: "The legislation appears to assume that it might be reasonable to take fewer precautions against the risk of harm created by an activity of high social utility. I accept that physical exercise is such an activity." [129] In my respectful opinion, the Act makes no such assumption. Although it might be said that as a general proposition physical activity is of social utility, what the subsection requires to be taken into consideration is the social utility of "the activity that creates the risk of harm". In the present case that activity was the medicine ball exercise. Of itself it had no relevant social utility let alone a high social utility - quite the contrary, unless Mr Draffin [the personal trainer] was satisfied on reasonable grounds that the appellant had the physical strength and capacity to undertake it safely. [130] In any event the social utility of the relevant activity is but one factor which s 5B(2) requires to be taken into account in determining whether a reasonable person would have taken the necessary precautions against the relevant risk of harm. As the chapeau to the subsection makes clear, each of the four subparagraphs is to be considered " amongst other relevant things ". There is nothing in the Ipp Report or in the text of the legislation which recommended s 5B which suggests that the standard of reasonable care requires the taking of fewer precautions against an acknowledged risk of harm simply because the activity which creates that risk has some social utility. There may be cases where the social utility of the activity is sufficiently high as to justify, notwithstanding other factors, a finding that a reasonable person would not have taken the necessary precautions against the identified risk of harm. Rescuing people from the impact of floods, cyclones and earthquakes were said to be examples that might attract such a finding. But in my view the present case does not fall into that or any similar category. 1. The social utility criterion had to be assessed with respect to the personal trainer having directed the particular client, Mr Wilson, to perform the specified exercise – not with respect to the social value in general terms of the gymnasium providing a service to the community. Likewise, in the present case, if there is any social utility to be weighed it must be that of providing a horse riding activity to the plaintiff on the day in question, not the social utility of the first defendant's enterprise in general terms. I do not doubt that there is considerable social utility in what the first defendant provides to disabled people, overall. 2. The social utility of an undertaking in a general sense is significant to the determination of whether a breach of duty of care has occurred in cases where the conduct of the defendant that has caused harm was not directed toward the plaintiff but toward the provision of a service to other members of the community. An example is provided by the facts of Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274, where an ambulance driver responding to an emergency changed lanes unsafely and caused a collision. The social utility of providing emergency medical services was taken into account in determining that there had been no failure to exercise reasonable care: at [29]-[31] (Emmett AJA) and [161]-[162] (Schmidt J). On facts such as those, the demands of the activity that is socially useful to the community at large are in tension with the requirements of care for persons in a category unrelated to emergency medical services, for example other road users. 3. A different analysis is required where the putative social utility is said to lie in the provision of care or a service to the plaintiff himself or herself. In such a situation, of which the present case and Wilson v Nilepac Pty Ltd are examples, it is questionable whether the consideration of social utility has any independent role to play in determining whether reasonable care for the prevention of harm to the plaintiff has been taken. Bearing in mind that the service or care being provided by the defendant is intended for the plaintiff's benefit and well-being, and that social utility is a concomitant of that objective, the court simply has to determine whether reasonable precautions were taken to achieve the benefit without doing harm. 4. In the course of final submissions I expressed reservations about whether there was social utility for the plaintiff in attempting to foster in her a sense of independence and confidence by reducing the number and proximity of side walkers. That is an aspect of perceived benefit to the plaintiff to which Ms King gave prominence. I could not be satisfied that any sense of independence or self-confidence on horseback could realistically be developed in a young person with such profound disabilities as those which afflict the plaintiff, in particular her intellectual development age of no more than 12 months. That does not conclude the issue of how s 5B(2)(d) is to be applied. However, deploying the reasoning of Tobias JA, so far as the concept of social utility is engaged on the present facts, the plaintiff's horse riding could not have been of any benefit to her unless her coach was satisfied on reasonable grounds that the plaintiff had the physical and intellectual capacity to undertake the activity safely. In my view Ms Sharp could not have been so satisfied unless the plaintiff was accompanied at all times by two side walkers stationed close to her. 5. I do not accept the first defendant's submission that its failure to take further precautions for the plaintiff's safety amounted to no more than an error of judgment, falling short of a breach of the duty of care. This was not a case in which a decision about safety precautions had to be taken in the agony of the moment. The first defendant's personnel had the benefit of observing the plaintiff's behaviour on horseback over the course of eight prior one hour riding sessions. The unpredictability of behaviour on her part that could easily lead to a fall had been observed on multiple occasions. It was observed on the day of the accident itself. There was ample opportunity for Ms Sharp to come to the realisation, as I think a reasonable person in her position would have done, that the plaintiff was not progressing to greater reliability in the saddle and that her inability to communicate or to understand and comply with instructions called to her from a distance necessitated the close presence of helpers at all times. 6. I reject the first defendant's submission that the plaintiff has failed to show that her fall was caused by the absence of side walkers close by. The first defendant refers to the lack of any expert evidence concerning the ability of a side walker to prevent a 60 kg child falling from the saddle or to break such a fall. I do not consider that resolution of this issue, upon which the plaintiff bears the onus of proof, is dependent upon expert opinion. I am well able to conclude that volunteers would have been able promptly to reposition the plaintiff's foot in a stirrup and to support her in the saddle by additional means if they had been walking close by, in a position to observe the signs of impending instability and to react. The second defendant owed no duty of care with respect to the riding activity 1. The plaintiff alleges that "the first defendant's horse riding program for disabled persons was conducted in conjunction with the school" and that the school provided staff to "supervise the plaintiff whilst participating in the first defendant's horse riding activity". The evidence does not bear out either of those allegations. The first defendant's conduct of horse riding was entirely independent of the school. In no sense did the school, or thereby the second defendant, play any part in conducting the activity. The school was an intermediary through which disabled children were introduced to the first defendant to participate in the activities that the first defendant offered. The school did not provide staff to "supervise the plaintiff while participating". The two teachers who accompanied the children to the Equestrian Centre on the bus had the care of them up until they were passed over to the control of Ms Sharp and the volunteers. During the riding session the teachers accompanied the group through the paddock and along the trail, pursuant to the terms of the first defendant's offer of its services, as quoted at [13] and [14] above. The teachers were thus on hand to resume care of the children when their riding session ended and, I infer, to assist in managing and communicating with the children if required by the coach. The evidence does not show that the second defendant, through the teachers, had any authority to direct or intervene in the riding activity whilst it was in progress. 2. The plaintiff relies upon the principle that a school owes a duty to ensure that reasonable measures are taken for the safety of pupils while they are in the school's care. The duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the children. It is a duty, the performance of which cannot be delegated, to ensure that reasonable steps are taken: Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258 at pp 269-270 (Mason J). The duty is owed only to a child who is in the school's care, usually while on the school premises. It was not owed by the second defendant after the teachers had relinquished care of the plaintiff, passing her into the hands of the first defendant's coach and volunteers for the duration of the riding session. The evidence does not support a finding that the school was conducting the riding activity through the first defendant, as the plaintiff has argued. 3. The plaintiff relied upon Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213, a case concerning the duty of an employer to provide a safe system of work, the performance of which duty similarly cannot be delegated. In that case the respondent's employer had directed him to work on a building site that was under the control of a third party. Through failure of the third party to adopt a safe system of work, the respondent was injured. On the authority of Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 and cases that have followed it, the Court of Appeal held that the respondent's employer was liable to him in damages. The employer was under a duty to ensure that the third-party provided the respondent with a safe system of work. 4. There is certainly a valid analogy between the non-delegability of an employer's performance of its duty to provide a safe system of work and the non-delegability of a school's duty to exercise reasonable care for the safety of children on its premises or otherwise under its control. However, whereas the employer-employee relationship subsisted and supported an ongoing duty of care when Mr Alelaimat suffered his injury on a third party's site, the school-pupil relationship was not operative and did not support a duty of care on the part of the second defendant at the time of the plaintiff's accident in the present case. Orders 1. The following judgments and orders of the Court will be entered, in accordance with the above reasons: 1. Verdict and judgment for the plaintiff against the first defendant, damages to be assessed. 2. Verdict and judgment for the second defendant on the plaintiff's claim. 3. The cross claims of the first and second defendants are dismissed. 4. The first defendant is to pay the plaintiff's costs of the proceedings to date so far as those costs concern litigation of the first defendant's liability in negligence. 5. The plaintiff is to pay the second defendant's costs of the proceedings, including the second defendant's costs of the cross-claims. 6. List the proceedings before the Registrar at 9:30 am on 1 November 2024 for directions with respect to further conduct of the proceedings against the first defendant. ********** 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 October 2024