KENDALL v SMITH [1990] NSWCA 104

KENDALL v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JJA 30 November 1990, 10 December 1990

[1990] NSWCA 104

APPEAL — Trial judge's findings based on credibility — Appeal on facts more difficult where trial judge has found against party bearing the onus of proof. Appeal dismissed.

Dearman v Dearman (1908) 7 CLR 553 Jones v Dunkel (1959) 101 CLR 298 Steele v Mirror Newspapers Limited [1974] 2 NSWLR 348 Jones v Hyde (1989) 63 ALJR 349 Abalos v Australian Postal Commission (High Court of Australia, 15 November

1990, unreported) Mahoney JA I agree with the judgement of Handley JA. Priestley JA I agree with Handley JA.

Handley JA This appeal from a verdict for the defendant found by Yeldham J arises out of an accident sustained by the plaintiff while exercising a horse in the "Bull Ring" at Randwick Racecourse before dawn on Monday 24 October 1983. She was employed at the time by the trainer Mr Neville Begg.

The plaintiff and her husband gave evidence that her horse was attacked by a bay stallion "El Unico" owned by the defendant Mr TJ. Smith and ridden by his nephew Stirling Smith. The trial judge rejected their evidence that Stirling Smith was riding "El Unico". He found that "El Unico" was in the "Bull Ring" that morning but did not accept their evidence that it had been involved in the incident which led to the plaintiff's injuries. The appeal challenges the finding that the plaintiff had not established that "El Unico" had caused or contributed to her injuries.

According to the plaintiff, "El Unico" attacked her horse causing it to fall and injure her. She said that "El Unico" passed her horse on her right between it and the ring fence while her husband was riding on her inside left. When "El Unico" was about three or four lengths in front it started "screaming" and rearing up on its hind legs, it whipped around a couple of times and then backed up against her horse which it kicked until it had knocked its hind legs from underneath it causing it to fall. She said there was general pandemonium and horses going everywhere.