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

Reported Decision : (2006) Aust Torts Reports 81-866

New South Wales Court of Appeal

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

HEARING DATE(S): 07/08/06

JUDGMENT DATE: 15 December 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 5; Bryson JA at 158

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

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

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

Agar v Hyde (2000) 201 CLR 552 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Carrera v Honeychurch (1983) 32 SASR 511 Coombes v RTA [2006] NSWCA 229 Derrick v Cheung (2001) 181 ALR 301 Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296 Holland v Jones (1917) 23 CLR 149 CASES CITED: Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272 Murray v Haringay Arena Ltd [1951] 2 KB 529 Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 Reeve v Dennett (1887) 11 NE 938 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 Tame v New South Wales (2002) 211 CLR 317 Vairy v Wyong Shire Council (2005) 223 CLR 422 Wyong Shire Council v Shirt (1980) 146 CLR 40