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. She positively identified the horse as "El Unico" and its rider as Stirling Smith. However she had only seen "El Unico" twice before. She said that she knew Stirling Smith by sight but had never spoken to him. She was able to positively identify both horse and rider despite the fact that it was before dawn, the accident occurred where the track was overhung by trees and the rider was wearing a riding helmet which came down to his eye brows. She said that there was enough light. Her husband said that "El Unico" came out of the trees in the centre of the ring on their left, forced his horse backwards and then backed into his wife's horse kicking it until it fell. He too recognised the rider as Stirling Smith. He had only 2 UNREPORTED JUDGMENTS seen "El Unico" two or three times before and previously had only exchanged greetings with Stirling Smith. He said that the ring was in darkness. There was no dispute that "El Unico" to the knowledge of the defendant was an unruly and fractious horse which had a mischievous or vicious propensity. After the accident neither the plaintiff nor her husband complained to the defendant, to Stirling Smith, or to Mr Neville Begg about the behaviour of "El Unico". The plaintiff lodged a claim for compensation with the Australian Jockey Club. She verified her part of the claim form before a justice of the peace on 10 November 1983. She described the accident as follows: "While riding work a horse collided with the one I was riding causing it to fall onto my leg". Neville Begg who also signed the document as employer gave this description of the accident: "Riding exercise around ring other horse threw its rider and got away and collided with her horse causing it to rear and dislodge her." This document was tendered by the defendant and admitted over objection. Its reception into evidence was not challenged in the appeal. The plaintiff did not refer in this claim form to "El Unico" or Stirling Smith, and on her evidence there is no apparent reason why she should not have done so. She also described the accident as the result of a "collision" with the other horse, which is scarcely consistent with her evidence. The defendant first heard of this claim when the proceedings were commenced some 22 months after the accident. The plaintiff called a Miss Dennis, then working for the defendant who was riding in the "Bull Ring" that morning. She was familiar with "El Unico" having previously ridden it on a number of occasions. She positively identified it as being present in the ring, having passed her shortly before the incident. She continued to walk her horse and passed "El Unico" soon after the incident a short distance ahead of where the plaintiff had fallen. She was unable to identify the rider. She had been about 20 metres behind when the plaintiff fell. She said "I did not see ['El Unico'] in the incident" and did not see it "anywhere near where [she] saw [the plaintiff] on the ground". She also said there was a group of horses involved in the incident, which she did not think "was... spectacular actually". In particular she did not see any horse rearing up. She said it was quite dark. There were about 60 to 70 horses in the ring. The ring was not large having a circumference of about 400 metres. The defendant called an employee Mr Hyland. He was riding behind the plaintiff when he became aware of "a bit of a ruckus behind us". A chain reaction then set in. He said he saw the plaintiff's horse spin around and the plaintiff "hit the fence". He did not see any other horse kicking or attacking her horse. He was about five lengths behind the plaintiff. The defendant also called Stirling Smith who gave evidence that he was not riding "El Unico" that morning. The trial judge rejected the plaintiff's evidence that it was "fairly light" at the time, preferring the evidence to the contrary of her husband and Miss Dennis. He accepted the evidence of Stirling Smith. He accepted the evidence of Miss Dennis that "El Unico" was in the "Bull Ring" but he was not satisfied, for reasons he expressed, that the conduct of that horse had caused or contributed to the plaintiff's injuries. The trial judge specifically accepted the evidence of Miss Dennis on two points namely the darkness and the presence of "El Unico" but did not, in terms, accept her evidence as a whole. Mr Gross QC. for the appellant argued that URJ KENDALL v SMITH (Handley JA) 3 although he did not say so the trial judge must have accepted the whole of her evidence. He then submitted that the verdict for the defendant could not stand with the acceptance of her evidence. This Court was therefore, in his submission, entitled to act on the whole of her evidence and find for the appellant. He submitted that a verdict for the appellant found on this basis would not disturb any findings of the trial judge which depended on his assessment of the credibility of witnesses. This argument breaks down because, even if it is otherwise valid, the evidence of Miss Dennis alone is not sufficient to sustain a verdict for the appellant and there is no other evidence, favourable to the appellant, on which this Court can act. The trial judge was not satisfied with the evidence of the plaintiff and her husband as to the involvement of "El Unico" and these findings clearly depended on his assessment of their credibility. Apart from that, there was no other evidence which supported the appellant's case. Mr Gross further submitted that the trial judge should have applied the principles in Jones v Dunkel (1959) 101 CLR 298 in favour of the appellant in view of the defendant's failure to call the employee who was riding "El Unico". However as Samuels JA pointed out in Steele v Mirror Newspapers Limited [1974] 2 NSWLR 348 at 377: "...the decision in Jones v Dunkel ought not be extended beyond the factual context in which it is intended to apply... it deals with the effect of a failure to answer the adversary's case." The principles applied in Jones v Dunkel (above) cannot assist the appellant. The rejection of the evidence that Stirling Smith was riding "El Unico" and the refusal of the trial judge to accept the evidence of the plaintiff and her husband as to the involvement of that horse left the plaintiff without a prima facie case. The failure of the defendant to call the rider therefore cannot assist the plaintiff. The appellant's task in endeavouring to persuade this Court to reverse the judgment of Yeldham J was always a difficult one in view of the issues of credibility which arose at the trial. See Jones v Hyde (1989) 63 ALJR 349 and Abalos v Australian Postal Commission (High Court of Australia 15 November 1990). The appellant faced a particular difficulty in this case because she bore the legal onus of proof. In Dearman v Dearman (1908) 7 CLR 549 at 553 Griffiths CJ distinguished between appeals on the facts where the trial judge had found in favour of the party who bore the legal burden of proof and such appeals where the finding was against the party who bore the onus. He pointed out that a Court of Appeal "may review the case with greater freedom" in the first class, but that an appellant faces a more difficult task in the second. For these reasons in my opinion the appeal must be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: B. GROSS QC and J WILSON Counsel for the Respondent: G. GRAHAM Solicitors for the Appellant: GH. HEALEY and Co Solicitors for the Respondent: HARDINGS