Ohlstein bht Ohlstein & Ors v Otford Farm Trail Rides [2005] NSWSC 605

New South Wales Supreme Court

CITATION : Ohlstein bht Ohlstein & Ors v Otford Farm Trail Rides [2005] NSWSC 605

HEARING DATE(S) : 30/05/05 - 03/06/05; 06/06/05; 08/06/05

JUDGMENT DATE : 23 June 2005

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : LIABILITY OF DEFENDANTS NOT ESTABLISHED

CATCHWORDS : NEGLIGENCE - ADDITIONAL ALLIED CAUSES OF ACTION PLEADED - RECREATIONAL HORSE RIDING ALONG NATURE TRAIL - REACTION OF HORSE TO INTERFERENCE BY ANOTHER ANIMAL - ABSENCE OF BREACH OF DUTY BY OPERATOR OF RIDE - SEPARATE TRIAL OF LIABILITY

LEGISLATION CITED : Fair Trading Act 1987

PARTIES : Tali Ohlstein by her tutor Adam Ohlstein, Jared Ohlstein, Vanessa Duncan and Adam Ohlstein v Elizabeth Lloyd and Timothy Lloyd trading as Otford Farm Trail Rides

FILE NUMBER(S) : SC 20297/01

P. Neil SC with S. Kettle (Plaintiffs) COUNSEL : S. Campbell SC with A. Davis (Defendants)

Maurice Blackman Cashman (Plaintiffs) SOLICITORS : Curwood & Partners (Defendants)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 23 June 2005

20297/01 - TALI OHLSTEIN by her tutor ADAM OHLSTEIN, JARED OHLSTEIN, VANESSA DUNCAN and ADAM OHLSTEIN v ELIZABETH LLOYD and TIMOTHY LLOYD trading as OTFORD FARM TRAIL RIDES

JUDGMENT 1 HIS HONOUR: On the afternoon of Sunday 5 April 1998 Vanessa Duncan, accompanied by her two children, Jared and Tali Ohlstein presented themselves at Otford Farm, an establishment offering equine leisure activities, and engaged in a trail ride. An accident occurred during the ride and Tali sustained serious injuries. Before the Court is an action by her seeking damages in respect of those injuries. Her mother, brother and father also seek damages for what I might for brevity, call nervous shock. 2 By order made on 11 August 2003 it was directed that there be "a separated trial on liability". It is common ground that what is to be determined is the liability of the defendants for negligence or breach of statutory or contractual duty, without reference to any issue about whether the plaintiffs, other than Tali, have suffered injury in a category which can be compensated by damages. The causes of action of those plaintiffs are derivative from and dependent upon the viability of action by Tali. Hence the hearing focussed upon whether the defendants were liable for her injuries. 3 The partners in the firm trading as Otford Farm Trail Rides are mother and son. The former, Elizabeth Lloyd is a medical practitioner and does not engage in the day to day running of the business but Timothy Lloyd does and his wife assists in the activity. 4 The hearing involved some, at times detailed, exploration of what was said to and by whom and what happened. There are disagreements in the evidence about many of these matters. It is over seven years since the relevant events. It is no novel proposition that reflection on the past can engender beliefs which are not entirely accurate, but which in the course of time transcend into what is harboured as a memory. Different people then may conscientiously reproduce different contents of memory about the same events. Much attention was paid to items of disputation but many of these are irrelevant (in the sense of providing weight to conclusion) to the determination of the issue of liability. 5 The first of such disputes touched upon initial contact. The decision to engage in horse riding activity was taken in circumstances described by Ms Duncan in these terms: "Q. Can I take you now to Sunday 5 April 1998. On that day did you want to engage in some type of family activity? A. Yes. Like, mid morning and we were just sitting around thinking what a nice day it was. Adam wanted to go to the beach. I sort of felt we always went to the beach, that's what our family always did. Tali did express quite an interest in horse riding and she had loved horses for a long time and I felt, well, we will try that today. Q. Did you do something? A. I got the Yellow Pages out and looked in the section for horse riding, found an ad for Otford Farm Trail Rides and called up." 6 Ms Duncan spoke to Timothy Lloyd. Her version of the conversation was: "A. It was very brief. I just said, you know, 'We would like to go horse riding. I would like to take my kids horse riding'. He said, 'That's fine. There would be a ride that's suitable at 2.00 o'clock'. He asked for my name and phone number and that was it, and I just went into the lounge room and told Adam we were going at 2.00 o'clock that afternoon. And he said he still didn't want to go and I tried to talk him into it, but he said he didn't want to go but he would go down to Stanwell Park and I would pick him up from there at 3.30." 7 In fact Adam Ohlstein went to the beach and the rest of the family went to Otford Farm. 8 Mr Lloyd's recollection of the content of the call was that Ms Duncan asked about trail rides and he told her that they had these and other forms of horse riding activity. As Ms Duncan telephoned in consequence of seeing an advertisement for Otford Farm Trail Rides I think it likely that is what she enquired about. Mr Lloyd remembers a booking for two people but when Ms Duncan came to the farm she was accompanied by her two children. Nothing turns on this difference of memory as, in any event, Mr Lloyd was able to accommodate the three riders with suitable mounts. 9 The next dispute concerns whether Ms Duncan signed the "disclaimer of liability" form and paid her money to Mr Lloyd or to his wife. I tend to the view that it is more likely that the form was signed and the money then paid, rather than, as Ms Duncan seemed to recollect, in the other order. Mr Lloyd had had legal and/or insurance advice about putting up signs and having the "disclaimer" signed and it would be surprising if he followed a procedure whereby he asked the customer to sign the form of disclaimer after the contract had been completed by payment. Again, whilst this contrast in memories has provided a fertile field for counsel to plough, preference of neither version would contribute anything to my determination of the essential issues. 10 Both Jared and Tali have manifested developmental symptoms which might be labelled as forms of autism. Many questions were asked about this of their parents, and a Dr Williams was called. I am satisfied that Ms Duncan did not mention these circumstances to Mr Lloyd or anybody else until she responded to a question by an ambulance officer after the accident. I am also satisfied that nothing about the children would suggest to an observer that they were anything but normal children of their apparent ages. I do not suggest that they are not normal but the only hint that they might require special attention was the request by Ms Duncan for repetition of instructions before setting off on the ride, when she mentioned that they might be slow in understanding. The response by the trail guides Mrs Caruana (Kate) and Ms Warriner (Brooke) was to give a one on one instruction to each child. This was a reasonable response to the circumstance. 11 Questions were directed to Mr Lloyd about whether he would have permitted the children to engage in the trail ride if he had been informed of their "autism". He said that he would not but the negative did not appear to be related to any knowledge of how this labelled condition would affect Tali or Jared or any other children. The impression I formed was that, if something of this sort were to be communicated to Mr Lloyd, he would decline to offer riding as a matter of precaution rather than foresight of any perceived difficulty. 12 The defendants provided and insisted upon the wearing of safety helmets by their customers. Tali was wearing one when the accident occurred. Ms Duncan had arranged for her to wear school shoes which had a heel rather than casual footwear with the obvious intention that the heel would assist in enabling the shoe to sit in a stirrup. 13 Mr Lloyd gave evidence that when Ms Duncan and the children arrived, obviously as he could see the young children, he raised with her the option of pony rides which he could offer in lieu of trail rides. He testified that Ms Duncan had rejected this alternative, told him that they had previously had pony rides and that the reason that they had come to Otford Farm Trail Rides was for a trail ride. I accept Mr Lloyd's evidence. It is consistent with Ms Duncan's contacting a business located by her in the Yellow Pages Directory which was by its title advertising trail rides. Although Ms Duncan places the matter in different context and terms, she gave evidence that Mr Lloyd told her that she and the children could ride about the saddling area and near the homestead but this is an option which she said that she rejected. Implicit in her evidence is that Mr Lloyd did offer alternative to trail riding and I consider it more likely to be in terms of his memory. It was not contested that Otford Farm offered facilities other than trail rides but I am satisfied that Ms Duncan contacted it for that purpose having formed the intention of going for a trail ride and she adhered to fulfilling her intention irrespective of the offer of any alternative. I accept that Ms Duncan told Brooke that they wanted to walk the trail although not necessarily in the terms that she now remembers. I consider Brooke probably understood whatever was said to be an indirect reference to the horses selected and that is why she replied along the lines that things would be fine and "they" were very safe. There is some evidence that along the trail the horses occasionally engaged in short trots. It may have been such an incident at one point which caused Jared to fall off. He was uninjured and remounted after this incident. Whether any of the horses ridden by the Ohlstein family trotted at some point or not, I find unprovoked trotting had nothing to do with the events that led to Tali's injury. Nor am I persuaded that Jared's fall required that anything be done to or for Tali by way of reasonable response by anyone for whom the defendants are responsible. 14 The probable composition of the ride which set out, was eight riders, three of whom and the mother of another child can be referred to as the advanced group and that child and three members of the Ohlstein family as the slow group. 15 Before departure Mr Lloyd handed Kate a lead rope. There was nothing brought to his attention or of which he ought to have known, indicating the use of such a lead on the ride but it was a prudent precaution having regard to what was plain, namely that there were young children proceeding on the ride. 16 Brooke led the ride and she was immediately followed by the members of the advanced group. The precise order then of Ms Duncan, Tali and the other child is not established and perhaps it altered along the way. That order at this point is of no consequence. However, Jared was the last in the slow group and was followed by Kate, who positioned herself at the rear in order to pay attention as to how he managed. 17 The ride to the half way point was relatively uneventful. No doubt, from time to time the advanced group created a gap between themselves and the slow group by reason of their respective rates of progress. At the half way point the advanced group set off onto a route which would enable them to canter and/or gallop. Kate escorted this group. She passed the lead which she had been given by Mr Lloyd to Brooke and again I am satisfied that this was simply to have it available if required and not because of any indication that it was in fact required. 18 The slow group now escorted by Brooke moved along the trail ultimately passing through the area with some thatched huts, which had been used at some previous time for the making of a film. Ms Duncan was asked how, to her observation, Tali and Jared had managed up to this point (beyond half way and passing through the film set area) and she said: "A. They had been fine. They were enjoying it. It was lovely. It was very nice." 19 However, shortly thereafter Jared called out and it was seen that he was off his horse. Ms Duncan implied that Brooke remounted him contrary to his wishes because it was a long way back to the homestead. It would not be surprising if he required some encouragement, but I am unpersuaded that anything Brooke did was unreasonable and nothing relevant to the action by Tali emerges from this circumstance. The ride resumed. Ms Duncan's version was that they rode in order of Brooke, followed by the other child, then Tali, then Jared and then Ms Duncan. She described what happened next in these terms: "A. We just sort of had gotten moving again and the little girl's horse trotted and stopped, because it sort of dipped down a bit. We were up the top of this grassy area. Her horse trotted a little bit and stopped, then Tali's horse kind of trotted after it but then veered out on to the right-hand side of her pony, came up almost parallel with Brooke and then turned and went down the hill heading in an easterly direction." 20 Later events were described: "A. The horse started to go down the slope. She sort of pitched forward in the saddle and had her arms around the pony's neck, sort of hanging on, and as she was leaning forward her feet were coming up like that a bit. Q. You are indicating your arm behind here to indicate --- A. Like her legs, say like her body was almost, not quite horizontal, but she was really angled down around its neck and her whole torso was up on its neck almost as it trotted down, and then as it was still trotting she fell off on its right-hand side but with her right foot caught in the stirrup." 21 Then her further description: "A. Well, it stopped, put its head down to graze, then it went berserk, it was sort of bucking, but not just kicking its legs out behind but around to the right like it was trying to hit at her, and then it bolted from down the bottom of this open area near the dead tree and it just galloped flat out up towards the northern end of that area, sort of like north-west direction. As it bolted off it had gone a fair way, then Brooke took off after it. Tali's helmet had come off immediately. I saw immediately she didn't have a helmet on." 22 Brooke Warriner's evidence is different from this in some important detail. At the relevant time she was leading the group followed by Tali, who was to her right, followed by the other girl (who was mounted on a horse called Hiawatha) slightly behind Tali but closer to Brooke, followed by Ms Duncan and Jared. Brooke remembers turning in her saddle and talking to Tali at this time. Tali's mount was named Patch. 23 Brooke was asked what happened and her description was: "A. I was talking to Tali whilst we were walking along. The horse behind Patch, Hiawatha, bit out at Patch's rump. At that point Patch jolted or leaped to the side to avoid Hiawatha biting him. It was at that point that Tali began to fall – lost her balance and began to fall off Patch. It was out of my sight because I was turned and facing her, and she fell away from my eyesight."