District Court New South Wales Medium Neutral Citation: Watson v Meyer [2012] NSWDC 36 Hearing dates: 5, 6, 7 and 8 December 2011; 6 and 7 February 2012; 3 April 2012 (oral submissions); 10 April 2012 (written submissions) Decision date: 16 April 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant. (2) Costs reserved. (3) Liberty to apply in relation to costs. (4) Exhibits to be retained until further order. Catchwords: TORT - negligence - Civil Liability Act 2002 (NSW) - plaintiff attacked by defendant's horse while both out riding on the plaintiff's property - duty of care - whether duty of care breached - whether particulars of negligence established - causation - defence of volenti non fit injuria pleaded at common law only - whether defendant could rely upon s 5G notwithstanding failure to plead reliance upon the statutory glosses to the common law defence - whether the Civil Liability Act covers the field - whether the parties were engaged in a dangerous recreational activity and the plaintiff was injured as a result of the materialisation of an obvious risk - s 69 and the effect of alleged admissions by the defendant - contributory negligence (ss 5R and S) - quantum Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C 5D, 5F, 5G, 5H, 5I, 5L, 5R, 5S, 16 and 69 Uniform Civil Procedure Rules 2005 (NSW), r 14.14 Cases Cited: Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257 Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420 Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 Canterbury Municipal Council v Taylor [2002] NSWCA 24 Carey v Lake Macquarie City Council [2007] NSWCA 4 CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Dare v Pulham (1982) 148 CLR 658 Doubleday v Kelly [2005] NSWCA 151 Insurance Commissioner v Joyce (1948) 77 CLR 39 Mackenzie v The Nominal Defendant (2005) 43 MVR 315 Osborne v London and North-Western Railway Company (1888) 21 QBD 220 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Ranieri v Ranieri (1973) 7 SASR 418 Rootes v Shelton (1967) 116 CLR 383 Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361 Sydney South West Area Health Service v MD (2009) 260 ALR 702 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 Vertzayias v King [2011] NSWCA 215 Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754 Texts Cited: Flemming Law of Torts, 10th Edition 2011 Category: Principal judgment Parties: Plaintiff: Lorna Watson Defendant: Alan Meyer Representation: Plaintiff: Graham Jones Lawyers Defendant: Stacks Southern Lawyers Plaintiff: Mr P S Jones Defendant: Mr J Wilson File Number(s): 2010/233997 Publication restriction: None Judgment Table of Contents Introduction [1]-[4] The issues in these proceedings [5]-[6] The particulars of negligence pleaded [7]-[8] The procedural history of the claim [9]-[11] The plaintiff's evidence [12]-[26] The plaintiff's account of conversations with the defendant about Aletist being in season [27]-[33] The circumstances of the accident [34]-[42] The defendant's evidence [43]-[62] The defendant's denials of conversations with the plaintiff about Aletist being in season [63]-[70] The circumstances leading to the accident [71]-[74] Whether Aletist was "winking" [75]-[94] Issues of credit [95]-[102] Conclusions concerning the conversations alleged by the plaintiff [103]-[106] Evidence in relation to the prior bad disposition of the horse Wrangler [107]-[112] (i) The Braidwood incident in 2006 [113]-[120] Conclusions concerning the Braidwood incident [121]-[124] (ii) The paddock escape incident in 2007 [125]-[129] Conclusions concerning the paddock escape incident in 2007 [130] (iii) The Wingadene show incident in 2007 [131]-[135] Conclusions concerning the Wingadene show incident in 2007 [136]-[138] Other evidence about the disposition of Wrangler [139]-[143] Conclusions concerning Wrangler's disposition [144]-[146] The existence of a duty [147]-[154] Breach of duty [155]-[160] Particulars of negligence (a)-(i) [161]-[215] Liability for harm from obvious risks of dangerous recreational activities [216]-[222] Voluntary assumption of risk [223]-[241] Alleged admissions by the defendant [242]-[249] Conclusions concerning liability [250]-[251] Contributory negligence [252]-[262] Quantum [263]-[264] Plaintiff's damages schedule [265] Non-economic loss [266] Past and future out-of-pocket expenses [267]-[270] Past and future home care and domestic assistance [271]-[272] Past and future economic loss [273]-[276] Costs [277] Orders [278] Introduction 1The plaintiff brings proceedings for damages arising out of an injury she suffered on 5 October 2009, when she was attacked by the defendant's horse, "Wrangler", while riding with the defendant on her property in Sackville Road, Ebenezer. 2The circumstances of the plaintiff's injury were as follows. The plaintiff and defendant both have a long history of involvement with, and ownership of, horses, although the plaintiff portrays herself as somewhat naïve and reliant upon the advice of the defendant. The plaintiff and defendant met the year before the accident, and had been living together on the plaintiff's property for approximately eight months, although for the last four months of their relationship the defendant lived on a property nearby because of his work duties. He returned to the plaintiff's home on weekends, when they would go for rides on her property, in the "arena" paddock at the far end of the acreage. The plaintiff owned about a dozen horses, and the defendant's stallion, Wrangler, was also stabled at the plaintiff's property. 3For some months prior to the accident, the plaintiff had agisted two of her mares on a neighbouring property. About seven days before the accident, the plaintiff brought these two horses (named "Aletist" and "Butterfly") back from agistment, and put them in the paddock containing the arena where she and the defendant regularly rode. As she was doing so, she noticed, according to her evidence, that one of the horses, Aletist, was in season and "winking" (releasing fluid which would signal her condition to stallions). The defendant, who was living away from the premises during this week, was not a party to the bringing back of these horses, but the plaintiff contends that he would have seen these mares, as he returned to the property daily for the purpose of filling the food bins for the horses in their paddocks around the plaintiff's property. 4The accident occurred as follows. When the plaintiff and defendant, mounted on their respective horses, Freckles and Wrangler, reached the path leading to the arena paddock, Wrangler became excited at seeing the two mares, Aletist and Butterfly behind the fence in their paddock. The defendant attempted to turn Wrangler to go back to the homestead. At first Wrangler obeyed, but then he reared up and the defendant was thrown to the ground. The defendant got up and shouted instructions to the plaintiff (the circumstances of this conversation and the precise location of the parties are in dispute). The horse Wrangler immediately charged back towards Aletist, turned right, galloped to where the plaintiff was and bit her left leg above the knee. The plaintiff came out of the saddle and was thrown to the ground. She was seriously injured. She had to drag herself to the fence to get out of the way of Wrangler while the defendant went to call the ambulance. The issues in these proceedings 5In written submissions, and in oral submissions on 3 April 2012, the parties confirmed that the plaintiff's case is one of actual knowledge on the part of the defendant that the horse Aletist was in season, and not that the defendant ought to have known that it was dangerous to ride towards or into a paddock containing one or more mares which may have been in season. 6The issues for determination are as follows: (a)Whether the defendant owed any duty of care to the plaintiff to warn her not to ride her horse "Freckles" towards or into the arena paddock on her own property because another horse owned by the plaintiff, "Aletist", was in season; (b)Whether the duty of care owed by the defendant was breached; (c)Whether the particulars of negligence pleaded have been made out; (d)Section 5D Civil Liability Act 2002 (NSW) and issues of causation; (e)Whether, by reason of s 5L Civil Liability Act 2002 (NSW), the defendant was not liable in negligence for the harm suffered by the plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff; (f)Whether there was voluntary assumption of the risk (pleaded in the defence as a volenti defence at common law, and thereby the subject of challenge by the plaintiff, as the defence does not refer to s 5G Civil Liability Act 2002 (NSW)); (g)The asserted effect of admissions by the defendant and s 69 Civil Liability Act 2002 (NSW); (h)Contributory negligence (ss 5R and 5S Civil Liability Act 2002 (NSW)); and (i)Quantum of damages. The particulars of negligence pleaded 7The plaintiff alleges that the defendant is a horse expert and that as the horse riding companion of the plaintiff (paragraph 1, statement of claim), he owed her a duty of care. It is asserted that he breached that duty of care as follows: (a)Failing to properly and/or adequately control his horse Wrangler. (b)Allowing the plaintiff to ride her horse in the vicinity of Wrangler when it was not safe to do so. (c)Allowing his horse Wrangler to be close to the horse Aletist when he knew that Aletist was in season. (d)Allowing the plaintiff and her horse to ride together with Wrangler when he knew or should have known that Wrangler was "fresh" and had been fed grain recently so that Wrangler was "pepped up". (e)Instructing the plaintiff "don't let him get past" after Wrangler had thrown him to the ground when it was not safe for the plaintiff to get near to Wrangler. (f)Failing to direct the plaintiff to immediately leave the area after Wrangler started to become excited. (g)Failing to direct the plaintiff to immediately leave the area after Wrangler had thrown the defendant to the ground. (h)Failing to take reasonable care for the safety of the plaintiff. (i)Approaching, or continuing to approach, Aletist, knowing that Wrangler had previously become excited/agitated in the presence of other horses and in particular mares. 8The plaintiff, who was taken by helicopter to Westmead Hospital and in the intensive care unit for a week, remained in hospital for three weeks, having suffered severe injuries to her left leg, left wrist and right shoulder. The nature and severity of those injuries are essentially not matters of contest, although the non-economic and future economic loss are disputed. The procedural history of the claim 9On 1 June 2011, the hearing of these proceedings was vacated, with the costs of the adjournment reserved to the trial judge, by reason of the plaintiff's amendment to her claim to include particular (i), namely the assertion that the defendant knew that the horse had a bad disposition and had previously become excited or agitated in the presence of other horses and in particular in the presence of mares. 10An application to amend the statement of claim during the trial, to plead that if the defendant did not know the mare Aletist was in season, he ought to have known of the potential danger, was withdrawn. 11I shall first set out the evidence of the plaintiff and defendant and their respective witnesses. The plaintiff's evidence 12The plaintiff, who was born in June 1966 and is currently 45 years of age, completed a Bachelor of Applied Science at Hawkesbury Agriculture College and then completed training at the Police Academy at Goulburn. She spent some time at Norwest Legal Services as well as completing general duties at police stations in the country. She has worked as an investigator at the NSW Ombudsman's Office, Railcorp and more recently for a government department. 13The plaintiff bought a 25 acre property at Ebenezer in 2005. She kept about a dozen horses she owned on this property. It was as a result of her horse riding activities that she met the defendant in 2008. She described this meeting as follows: "When I had - I returned back to the academy I had taken some horses with me and one of the horses that I'd taken was a young horse that I had wanted to continue working with because I'd been having lessons from a local fellow prior to going down to Goulburn and I wanted to keep that up. And he was quite a spirited and afraid horse and I had contacted the proprietor of the steel company that had done the modification on the float and I'd asked him or he'd recommended to me Allan again as a horse expert and at that particular time when I spoke to the proprietor he had been or was having one of his horses trained by Allan and he spoke very highly of the work that Allan had done with the horse and that's how I came to be put on to Allan." (T 14-15) 14The plaintiff described her own horse knowledge and background at the time she met the defendant: "Q. What happened after your discussion? A. I told him what my background and experience was and I said to him I'm an English rider. I had dressage lessons when I was a much younger person. A couple of years ago I purchased an old quarter horse gelding who was an old rodeo horse and that horse was teaching me. I don't know what I'm doing. I don't know much about how to ride a western horse and the horse that I was hoping he would help me with was a young - and I was saying this, was a young quarter horse gelding who had had some reining training prior to me purchasing him and I explained that to me the horse was quite afraid and quite fast and had training in working at speed and being manoeuvrable and during the conversation just prior to that I'd asked Allan when he had explained what the John Lyons Select Training was I'd asked him what sort of training do you do and he told me that he could train anything and that he'd trained national champions and he was a reining trainer and he'd also trained police horses in the states." (T 16) 15The plaintiff compared her knowledge to the defendant's knowledge of horses as follows: "Q. How would you compare your knowledge of horses with Mr Meyer's knowledge? A. Very little. He was highly experienced from what I could see. He was successful with the time that he worked on that horse. The more I saw of what he was doing with the horse the more I realised I didn't know." (T 17) 16Counsel for the plaintiff, Mr Jones, indicated (T 17) that although there was no payment of money for these training activities, there would be evidence about reliance upon the defendant's expertise (T 17 line 27; T 18 lines 5-7). She said that the defendant gave her lessons (T 19-21). 17The plaintiff commenced to have a personal relationship with the defendant, and in December 2008, approximately eight months before the events the subject of this litigation, he moved into her property. 18The plaintiff painted a picture of the defendant as essentially remaining at home and performing the farm duties, as well as going for lengthy rides on his horse (T 19), while she worked full time. In fact the defendant worked even longer hours (see [24] below). 19The evidence of the extent of the plaintiff's expertise was the subject of challenge in cross-examination. Although the plaintiff had painted a picture of the lessons she received from the defendant as being beginner's lessons, she had been riding, including riding in competitions, since about the age of 12 (T 83), winning ribbons in gymkhanas. She competed in events called "barrel racing" around New South Wales (T 85-86). She worked as a trail guide, supervising groups of people on horsebacks (T 243) for inexperienced rider on country riding holidays. She refused to describe herself as an experienced rider (T 86), although she had a part time job at "Horselands" (T 86), a shop which supplied horse care products, and had bought the property in 2005 so that she could stable all her horses. Those horses included a stallion which she bred with a mare, although she said that she was unsuccessful, as this stallion was injured in the process (T 87-88). 20The plaintiff described (T 16) how the defendant trained her horse. She did not pay him for this (T 17 line 13). She said that after the defendant moved in "I had asked him if he would give me lessons" (T 19) on Freckles in western riding. This was because the plaintiff was accustomed to English riding (T 20). She said that the defendant agreed to do so and that when they went to the arena paddock "he would give me some instruction on [Freckles]" (T 20) in western riding. The plaintiff decided to sell some horses and advertise these horses for sale in July 2009 (T 20). It was in relation to this sale transaction that she wanted to have western riding lessons. She said that the defendant also gave her advice about appropriate saddles and equipment, and that she took "huge notice" (T 21) of what he told her. She said that when they went to the arena paddock the defendant would give her lessons, usually in the "round pen". 21The plaintiff said she was not an experienced horsewoman and knew little about stallions: "Q. So Ms Watson, during the period leading up to the date of your injury I want to suggest to you that you were an experienced horse woman, quite capable of managing multiple horses including a stallion on your own? A. I disagree entirely. Q. So are you presenting yourself to the court and is it your suggestion that you are an inexperienced person incapable of managing horses? A. To some extent that's true. Q. To some extent? A. The - the horses on my place that I felt comfortable about managing were Freckles [sic]. Like I said to you that stallion was an entirely different proposition and in fact when Allan moved in he'd offered to assist me with different horses on the place because he suggested that I had too many and I certainly agreed with him and the stallion was one of the horses that he handled on the property. Q. But before Mr Meyer moved into the property you had that stallion for a period of what would appear to be in excess of 12 months? A. And did nothing with him. Q. Except attempt to breed with him and take him to the vets on your own? A. And when the farrier came to trim those feet the farrier held him, not me, and the horse used to misbehave quite drastically for the farrier. Q. Ms Watson, I'm suggesting to you that you are an experienced handler of horses with a great deal of knowledge in relation to horses. That you are an experienced rider. That you have the capabilities of managing horses including stallions? A. I don't mean to be rude but I'm not sure what part of that you would like me to address." (T 88-89) 22The plaintiff agreed (T 90) that she was not so frightened of Wrangler that she told the defendant not to bring him onto the property. She agreed that she had control of the property and she had control of what occurred on it, including what horses came onto the property (T 90) and what paddock they were put in. On occasions she had fed Wrangler but said that he had been "nippy with me" (T 91). The defendant subsequently told her to keep away from him and said that he had banned his former wife, Ms Fenner, from any contact with Wrangler (Ms Fenner did not give this evidence when called by the plaintiff). 23After the defendant moved into the property, the plaintiff went riding with him, to her arena paddock or to the back of the property, about every second weekend (T 91). She said that they had never ridden through the arena paddock with a horse in it before, although there were mares in other paddocks on the property during this 10 month period, including the mare Aletist (T 91). She said that these horses never came into close proximity with Wrangler because the arena paddock, the place to which they rode, was not used for this purpose. 24For the first six months that the defendant lived on the property, he was working as a long distance driver for up to seven days a week. The long hours that he was away meant that he spent little time at the property, so in mid-2009 he obtained a job in a nearby stud (T 25). This stud was about 10-15 minutes drive away, but as mares generally foal at night, he had to live on the stud property. He returned on some weekends. The plaintiff and defendant both gave evidence they would talk to each other on the telephone on a daily basis and that in addition, the defendant would come onto the plaintiff's property one to two times a day to put feed in the horse feed bins (T 25). 25There were about 12 horses located on the plaintiff's property in 2009, although two of the plaintiff's horses, Aletist and Butterfly, were agisted for some months on a neighbouring property. The plaintiff was the sole person responsible for the placement of horses on her property. The defendant was not cross-examined about a statement he made (T 344) that she rotated horses between paddocks from time to time at her discretion. 26According to the plaintiff, when she was bringing back her two mares from agistment to her property, about a week before her accident, she observed one of the mares, Aletist, to be "winking", a term which describes fluid coming out of a mare's twitching vulva, indicating she is fertile and receptive to a male (T 25). Evidence from the experts as well as from the lay witnesses was to the effect that mares are in season about once a month for a period of up to a week, and that they are particularly likely to be in season during spring. Although the tradition of giving all horses birth dates in the same month is for convenience purposes, this reflects the fact that many horses are fertile in the September-October period. The plaintiff's account of conversations with the defendant about Aletist being in season 27According to the plaintiff, when she spoke to the defendant on the telephone on the day she brought the horses home, their conversation was as follows: "Q. What sort of contact did you have with Mr Meyer whilst he was at the stud? A. We used to speak daily. Our practise had been of an afternoon or evening that we would chat to one another on the phone to see what had happened with each of us during the day. And he was also spending a lot of time at my place as well when he had time available from work. And on the afternoon that I'd brought Aletist and Butterfly home, which was just getting towards dark, I'd called him that evening and part of our conversation, because I had told him that I'd brought-- Q. What did you say to him? A. I said to him "I brought Aletist and Butterfly home today. Aletist is in season, just so you know. I've put them at the far paddock at the back of the property, the farthest away from Wrangler. Is that okay". Q. Did he respond? A. He did. And he said to me "That's fine". He also said "You shouldn't have done that because I was going to help you" and that was reference to me actually bringing the horses home. Q. Besides speaking with him on the phone, what other contact did Mr Meyer have at that stage with you and your property and the horses on your property whilst he was in the position at Don Burke's stud farm? A. He had a lot. As I said, we would talk on a daily basis. He was also spending a lot of time at my place. He'd told me that at the stud he'd had a lunch break and also that he was, part of his duties was that he had to feed some of the stud's horses that were kept on a different property and that he would arrange to feed those horses either during his lunch break and then come past my place at that time, or alternatively do it in the afternoon so he would leave the stud and go and feed those horses and then come back past my place." (T 25-26) 28Although the defendant came to the property for about half an hour early in the morning and again in the evening for the purpose of putting feed in the horses' feed bins (which would have included the horses Aletist and Butterfly, now that they had been relocated in the arena paddock), he did not see the plaintiff again until next Saturday (5 October, the date of the accident). They continued to have daily conversations, but this topic was not mentioned again. 29On Saturday 5 October, the plaintiff and defendant first went to Kurrajong to meet the plaintiff's mother for breakfast (T 22). There was discussion about going for a ride later in the day. They returned to the plaintiff's home in Ebenezer, and at about 2.00pm they both decided to saddle up the horses and travel to the arena paddock (T 22-23). It was their habit to ride their own horses, Wrangler and Freckles. According to the plaintiff, the following conversation occurred: "Q. What was said? A. When I had finished getting Freckles ready, I'd led Freckles off the wash bay and I was standing just below - we were both standing just below where the water tank is and a little garden area. Q. The water tank, is that the one shown on the right? A. That's correct. Q. Of Exhibit D1? A. That's correct. Q. What was said? A. I said to Allan "Will Wrangles be okay with Aletist up there, she's in season don't forget". Q. Did he respond to you? A. Yes he did. Q. What did he say? A. He said "He should be fine". Q. Did you have any further discussion with him? A. There was. I said to him "The mares could always go into that spare paddock before we go up if you like". Q. The spare paddock being what paddock? A. It was the paddock that was adjacent to the area and on the first map it's on the left-hand side of Aletist's paddock. Q. I think you have told us this but just in case you haven't, to go into the arena which is I think where you were destined that day, is that right-- A. That's correct. Q. --you had to go through the paddock in which Aletist and Butterfly were located, is that right? A. That's correct. Q. After you said to Mr Meyer "Well you can always put the two mares in the spare paddock", did he respond to that? A. He did. He said "No it'll be fine"." (T 26-27) 30The plaintiff was certain that she had informed the defendant twice of these events, although she said she was unaware of the dangers of taking a stallion into a paddock containing a mare in season (T 186 line 28-35) and although she had no regular practice of monitoring when the horses on her property were in season: "Q. Did you have any monitoring of or make any observations about her, for example, past behaviour of winking and things like that? A. Sorry-- Q. Did you take any specific notice over that period of two years about her behaviour in the period when she was seasonal, for example winking behaviour? A. I would have noticed it but I don't know that I made any specific note to myself in relation to that. Q. Are you able to say whether she showed any obvious visible signs of being in season? A. Aw well, she would wink when she was in season. Q. And did you notice for how long that occurred for? A. I can't answer that at this point. I'm aware that the season lasts about a week give or take depending on - apparently horses are all different, but I don't have any - what am I trying to say, I hadn't made any particular observations in terms of her patterns of behaviour if you like in relation to when she was in season other than if she was I would see it. Q. Would her season go only for two or three days where she was exhibiting signs of winking? A. I'm not sure that my - well I may well have made observations along those lines, I don't recall them now. Yep, sorry, I'm not sure what else I can say. Q. In relation to a mare being in season are you at the present moment aware of the seriousness in relation to keeping a mare away from a stallion during that period of time? A. I certainly am today. Q. What about back in 2009? A. I was aware that mares who are in season were in season for a reason, if you like, that they were - had times when they were receptive to a stallion and that was the times when they were actually in their season. Q. So were you aware of the need to keep, and this is again going back to the time of your injury in October 2009, were you aware of the need or the caution not to put a stallion near a mare who was in season? A. Yes. Q. You were aware of that? A. Well, and that's why I had advised Allan where I had put the horses and noted to him that they were the farthest away from his stallion and up the back of the property. Q. When you went riding with Mr Meyer that day it was your plan to go down, that was your intention to go down into the paddock which was where the arena was located, is that right? A. We were both going there. Q. And you're aware at that time that it wasn't advisable to go into a paddock where there was a mare on season? A. Are you talking - sorry I don't understand the question. Q. Well as at 5 October 2009 when you were injured, were you aware of the dangers associated with taking a stallion into a paddock where there was a mare which was in season? A. No. Q. You weren't aware of that at all? A. On that day when I advised Allan again that the mare was in season, yes I did have some concern in relation to the behaviour of his stallion which is why I reminded him and asked him if his horse was going to be okay. I have not experience in terms of people riding with stallions in paddocks with mares in season. Q. See Ms Watson, you never told Mr Meyer either on the telephone or even before the ride, that Aletist was in season? A. I absolutely told him on each occasion. Q. Are you suggesting the reason you told him was that you were aware of the dangers associated with riding a stallion into a paddock or even in the vicinity of a mare? A. I told him because his - sorry his horse is a stallion, the mares were up there and I'm reminding him this is where we're going is your horse going to be okay, because I didn't know how his horse would respond, hence my question to him in terms of will he be okay." (T 185-186) 31The plaintiff repeated (T 187 line 14) that she was not aware of there being any danger. She said the second conversation was simply "a courtesy" to him in case he had forgotten what she said in the phone call some seven days earlier (T 187). 32In cross-examination it was put to the plaintiff (T 188-189) that she had not told the defendant that Aletist was in season. She denied this. 33As the plaintiff and defendant set out on 5 October, she said the defendant told her Wrangler was "a bit fresh" because he had been given "a fair bit of grain" and not much exercise (T 229). The circumstances of the accident 34The plaintiff described the accident as follows. The plaintiff and defendant proceeded from the stable where they had saddled the horses and began to ride their horses up the track. They were heading towards the arena paddock. The plaintiff said that Wrangler appeared fresh, and was zigzagging. 35The plaintiff and defendant reached the paddock previously occupied by Freckles. This paddock was empty of horses on the day (T 30). The defendant was a short distance ahead (about 10-15 metres) and they were riding towards the end of the track where the arena was. Before that, it was necessary to go through the gated or cordoned-off area of the paddock occupied by Aletist and Butterfly. 36When they were approximately 20-25 metres from the gate, Aletist and Butterfly could be seen. The plaintiff said that Aletist was facing backwards and it was obvious from her rear end that she was "winking". The defendant denied this. 37Wrangler began to play up (T 40-41) by tossing his head, dipping his head down and beginning to prance. The defendant was gripping the reins and would go forward with the movement of the horse. The horse then began screaming. The plaintiff said "I think we better go back", to which the defendant agreed, saying he was already trying to get the horse away from the fence. The plaintiff turned her horse around and began to walk very slowly back towards the home. She was looking back to see how the defendant was going on his horse and observed that the horse was moving sideways. He was at about a 45-degree angle to the right hand side fence line, which was the electrified fence line. 38As the plaintiff was leading up to the hay shed, Wrangler appeared to be a bit calmer. The defendant got Wrangler to a gate area on the right hand side of the track when the horse changed direction and went to the left hand side of the fence. He threw his head down and threw the defendant, who went sailing over the horse's neck and on the horse's right hand side (T 44). The defendant hit the ground near the trunk of a small tree; at this stage the plaintiff was about 10 or 15 metres back (T 45). The horse Wrangler spun around and began charging back towards the two mares Aletist and Butterfly. The plaintiff said that the defendant called out "Don't let him get past" (T 45). 39The plaintiff had already stopped Freckles from going forward. She was sitting on her horse beside the hay shed, facing towards the gateway where Freckles was. This was the gateway where Wrangler had deviated to the left. Wrangler was charging back towards them as fast as he could. As the defendant had told the plaintiff not to let the horse go past, she squeezed Freckles with her heels and asked him to move forward and Freckles took one step forward with his right front foot. She thought she could grab a rein, but it never reached that point, because Wrangler had started to charge in her general direction. He lined her up and, coming at her very fast, took her leg above the knee. He "latched onto her like a vice". He continued to charge towards Aletist and Butterfly, holding onto her leg, and she began screaming (T 48). 40The plaintiff had not changed her position in the saddle as she was dragged along. Wrangler did not break stride with Freckles, so they were galloping side by side (T 49), while Wrangler had the plaintiff's left knee in his mouth. The plaintiff then came out of the saddle and she was up side down with her head close to the ground. She hit the track when the horse dropped her and she landed on her back. 41The plaintiff knew immediately that she was seriously injured. The defendant ran up to her and said "I'm going to put Wrangles [sic] down" (T 50) and went to the house to get assistance, as they did not have mobile phones. Wrangler charged back towards her and she had to crawl underneath the fence to avoid him (T 51-52). 42The plaintiff suffered serious injuries which are described in more detail in the section of this judgment in relation to quantum. The defendant's evidence 43The defendant, who is currently 60 years of age, was born in the United States. He became interested in horses as a teenager and acquired his first horse in about 1972 or 1973. Since that time, he has owned about a dozen horses (T 323), a number comparable to that owned by the plaintiff. At one stage he worked with the Sheriff's Department in the United States as an instructor and trainer, but this was part-time. He worked for a trucking business between 1971 and 1999. 44The defendant began working full time in the United States as a horse trainer for about three years after 1999. He completed the John Lyons horse training course in 2001 and it was during this six months at school that he met Ms Kate Fenner. He went to live with her in the United Kingdom in 2002, where he lived until 2004. He married Ms Fenner in 2004 and worked with her as a horse trainer, covering both western and English horse training and horse riding disciplines. He came to Australia in 2004 with Ms Fenner to live. They looked for a property and settled on a country property of about 100 acres in the area between Marulan and Goulburn. It had been divided into paddocks for horses as the previous owner has owned horses. He lived there until Ms Fenner said she wanted in a divorce, in late 2007 or early 2008. During this period of time both he and Ms Fenner trained horses. They owned about three or four horses between them over this time. 45The defendant and Ms Fenner returned to the United State for further training with John Lyons. While there he bought the horse Wrangler. Wrangler was about two years old at the time. The horse remained with the defendant when he returned from the United States to England and was then flown to Australia. Wrangler then remained with the defendant and Ms Fenner in England for about 18 months. (The defendant's dates in relation to these events are somewhat inconsistent (see T 328-330), but nothing turns on this part of the chronology.) 46The defendant had had prior experience with stallions. His first horse in 1972 was a colt. He said it made little difference to him whether the horse he was riding was a stallion or not (T 326). It was difficult for him to put a number on how many stallions he had managed, but he said that stallions were fewer in numbers than the rest of the horse population, because they were principally kept for breeding purposes rather than for riding. 47The defendant described Wrangler's behaviour in England and the circumstances in which he suffered an injury when thrown from Wrangler when the horse was injured by a nail in the saddle: "Q. During the time that Wrangler was in England with you and Kate how did you find his behaviour as a horse? A. Typical. Q. And what do you mean by typical? A. He was a young horse that had no education and that was the reason for buying him really, rather than having to change a behaviour you get to build it from scratch. Q. In this building from scratch process in England did you have any problems with him? A. I did. It wasn't his problem. While breaking him in Kate and I had a clinic to do on one weekend so I put him away on Friday night and had him looked after while we went and gave this instruction at this clinic and came back early the next week and started him again. And when I went to saddle him he acted differently. I knew there was something but it didn't stop me and I mounted and he began to buck and carried on more vigorously with each buck after that and I wound up falling and he came down on my ankle and shattered it. Q. Was that behaviour of Wrangler the same or any different to any other experiences you'd had with stallions during the course of your time with working with stallions? A. I don't think it had anything to do with him being a stallion. This was all brought about by a nail that was making its way from the inside of the saddle, or the underside of the saddle towards the horse and my weight in the saddle was simply driving that nail into his back." (T 331) 48The defendant described Wrangler's behaviour in Australia as uneventful: "Q. When you migrated with Kate to Australia did you bring Wrangler with you? A. We did. Q. Where did Wrangler come and reside or be housed at Tiyces Lane? A. That's correct. Q. Did he remain at the property at Tiyces Lane during the course of the time that you resided there? A. Yes he did. Q. During that period of time was there any - were there other horses on Tiyces Lane? A. Absolutely. Q. Did Wrangler have any involvement with those other horses? A. Involvement in-- Q. Did he mix with them? A. He wasn't housed with them. You never put a stallion along a common fence with any other horse. But he rode with Kate while Kate rode geldings and mares and everything else. Q. And how did you find Wrangler's behaviour with other horses during that period of time? A. A non event. Q. What do you mean by a non event? A. He was focussed on the instructions, and on me, and what we were trying to accomplish at the time. Q. During that period of time how much involvement did you have with Wrangler, was it on a day to day basis during that period of time that you lived at Tiyces Lane? A. It was every day.. Q. What were your observations about his behaviour during that period of time? A. Can you re-phrase that, I'm not sure-- Q. Well did you form any opinion about his behaviour, or his demeanour, during that period of time? A. He was a typical horse." (T 331-332) 49During the time that the defendant and Ms Fenner lived together, three incidents occurred which are relied upon by the plaintiff as evidence of the horse Wrangler as having a bad disposition. These are described in more detail in the section below concerning the temperament of the horse Wrangler. 50After the defendant left the matrimonial home he had been sharing with Ms Fenner, he met the plaintiff, while he was working at Australian Stockyards. This was a steel fabricating company which, among other things, built horse floats. He was working there as a welder. He was consulted because the plaintiff said she was "afraid" of a horse she had bought (T 338). They became romantically involved. The plaintiff invited him to come and live with her at the property in Ebenezer some months earlier to December 2007 but he said he would not do so until he had obtained employment. He then went back to driving trucks, and in particular driving racehorse trucks for Prestige and its sister company Hawkesbury Racehorse Transport (T 339). He worked for them driving long-range trucks but was still home every night. However, as horseracing was a seven-day a week job, he was on call every day of the week, including many weekends. The defendant found the very long hours driving trucks to be tiring and began looking for other employment. He worked for Prestige/Hawkesbury Racehorse Transport from January to June 2009. He found employment at Burke stud in June and worked for them until about October 2009. He lived at the stud but came home for about three weekends out of four. 51The defendant gave a very different description of the rides he had with the plaintiff. He said that he always rode Wrangler, and that the plaintiff would more often than not ride Freckles. He said that they both "loved to ride" (T 348) and that these were rides for pleasure. He said his level of horsemanship was different to the plaintiff's, and said: "A. I believe Lorna has ridden for almost as many years as I have and certainly done eventing that I've never done and I think it takes a great deal more experience to go out and do eventing which is running and jumping through hazards and fences, I'm not up to that." (T 381) 52He said that he did not advise her on selection of horses, and that he did not provide input into selection of horses when she advertised some horses in a horse swap (T 381). He said that he had given her instructions in western riding but that he stopped giving her instructions on western riding because "all it did was lead to an argument" (T 382). 53During the six-month period that he was working for the transport company, he would try to go for a ride with the plaintiff at least once a week. He described these rides as follows: "Q. When you'd go for a ride whereabouts would you go riding on the property? A. We might keep the ride to the arena, we might go to the arena and then make our way to the bush area that was you know towards the back of the property beyond the arena or we might do both of those and then ride out onto the road and then go down the road and there was a little track that Lorna knew, it kind of went to the back of her place, so wherever we wanted to go. Q. And what horse would you ride on those ride? A. I always rode Wrangler. Q. And what horse would Lorna ride? A. More often than not she would ride Freckles, if not all the time. Q. And during that period of time did you experience any difficulties with Wrangler whilst riding with Lorna whilst you were riding Wrangler and she was riding Freckles? A. No. Q. And again I'm just asking during that first six months, during that period of time are you aware of where Aelitist was housed on the property Ebenezer? A. There were quite a number of horses and they were rotated between paddocks from time to time at Lorna's discretion. I was made aware of what horses were where so that I could feed them the proper ration but none of that was within my control or - so I just delivered the feeds where Lorna told me the horses were." (T 343-344) 54Wrangler and another horse owned by the defendant also lived on the property. The defendant said that there were many times that he rode Wrangler in the arena paddock. On occasions, they rode in the arena while there were horses in the arena paddock, but they did not go into the arena paddock and ride at the back of the paddock, where these horses were kept. They rode in the arena (at T 345). 55The defendant's jobs while living on the property included feeding the horses. He described this as follows: "Q. Can you give an indication to the court what feeding of the horses involved? A. Lorna would generally and certainly in the beginning, make up her rations for her horses, in the buckets with their individual names on them so that I could deliver the proper ration to the proper horse and that was simply my job until I became more familiar with both her horses and her feeding regime and she would have that on a piece of paper for me, who got what and she entrusted me after some time to give them the proper feed. Q. And during the time when you were feeding the horses, how did you physically do that, did you move the feed from the shed around to the different paddocks? A. Yes by means of a wagon or trolley that Lorna had. Q. And would you pull that physically just on foot or would you have that on a car or the back of the horse? A. No I just dragged the thing. Q. Sorry? A. I would just drag it along behind me." (T 345) 56It was necessary for the plaintiff to remain on the Burke stud during the week because he had to assist with foaling (T 346-347). He would have one weekend off in four. As there were four staff members, they would share the weekends off between them. He nevertheless had weekends free during the day, and would still go for weekend rides with the plaintiff. He also continued to be responsible for the feeding of her horses: "A. I would generally feed in the morning and feed at night so that meant getting up, running over to Lorna's place, feed, run back, feed the sixty some horses there before starting the day to train and then in the evening I would do the same routine. Q. And did it involve, the feeding regime that you performed at the, whilst you were working at the Burke Stud, was the same regime you just described a moment ago is that correct, in relation to the feeding of the horses at Ebenezer was it the same regime that you described a moment ago, how the mixing of the having to feed--? A. Yes, Lorna would try and make up a week at a time so there would be stacks of buckets that belonged to a particular horse and all I'd have to do is come along take the top one of each of the stacks, throw them in the trolley and down the lane I'd go. Q. And the feeding that you undertook whilst you worked at the Burke Stud, when you undertook it at Ebenezer was that undertaken in daylight hours or in darkness? A. That would depend, generally in the mornings it was dark, given the time of the year and the fact that I needed to be back at the stud to start work there at seven, seven-thirty in the morning so, and then I had to do Lorna's even earlier, I would get to feeding in the evening when I could. Q. And would that generally be in the hours of darkness or in light? A. It wasn't pitch dark by any stretch of the imagination but it wasn't full light either."(T 347) 57While the plaintiff said that she only went riding with the defendant about every second weekend, the defendant's evidence was that they would go riding at "every opportunity", and that while that depended on the plaintiff's work schedule "we both loved to ride and that's what we'd do" (T 348). This appears to be a more likely description of their activities together. 58The defendant's presence on the property for feeding would take about half an hour in the morning and half an hour at night, and in addition, he would be there on weekends all day and often overnight (T 348). He was asked whether the horses would always be at the feeding trough: "Q. And in relation to when the horses would be fed, was it always the practice that the horses would be there at the feeding trough when you fed them? A. No, no it wasn't those horses had a little more to choose from in that back country and they, as often as not weren't there when you'd dump the feed in." (T 348) 59He said (at T 390) that, at best, horses would come to the troughs at feeding time about 50% of the time, but that you could not see if a mare was "winking" unless you saw the horse from behind (T 391). 60He was asked in particular about his observation of the horse Aletist and the other horses in the arena paddock in the week before the accident: "Q. I just want to clarify the question, when I said the horses, I was referring to Aletist and the other horse in the arena paddock which is what, you answered that question didn't you? A. Yes I did. Q. Do you know what other horse was there with Aelitist [sic]? A. No I know there was another horse, I don't remember that horse's name. Q. And did you observe Aelitist during that period of time of the week when she was in the paddock the arena paddock? A. Did I observe her. Q. Yes? A. Not particularly. Q. Did you observe any characteristics such as what has been described as winking during that period of time which would indicate to you that she was in season? A. No I did not. Q. The plaintiff has given evidence in relation to a conversation that took place on the telephone relating to - whereby the plaintiff said that she told you that Aelitist was in season, this was on the telephone during the week, did any such conversation take place? A. Absolutely not." (T 348-349) 61The defendant agreed that they would have telephone conversations on a daily basis, sometimes several times a day, and that they would discuss matters such as horses. He said the plaintiff described such matters as changes to feeding regimes or water troughs, whether the garden needed to be watered and the like. It was not necessary for the defendant to open the gate for deliveries because those persons had a key (T 349), that there were occasions when he had to let persons in to the property. 62He said that Wrangler was a typical stallion and stallions "typically are nippy" (T 350). He agreed it was very likely that he had told the plaintiff words to this effect (T 350). The defendant's denials of conversations with the plaintiff about Aletist being in season 63The plaintiff alleges that she spoke to the defendant by telephone at the stud on the day that she brought the horses home from agistment. During this conversation the plaintiff says she told the defendant that Aletist was in season. The plaintiff says she had a second conversation with the defendant to this effect on the day of the accident. 64The defendant said, in examination-in-chief: "Q. The plaintiff has given evidence in relation to a conversation that took place on the telephone relating to - whereby the plaintiff said that she told you that Aelitist was in season, this was on the telephone during the week, did any such conversation take place? A. Absolutely not. Q. Was there any conversation of a telephone nature that took place during the time that you worked at all during, sorry I withdraw that question. Did you communicate with the plaintiff when you stayed overnight at the Burke Stud? A. Yes daily, several times a day. Q. And would you talk to the plaintiff about matters involving the horses? A. Certainly. Q. And would you talk to - and sorry what sort of things would you talk to the plaintiff about as far as the horses on Ebenezer was concerned? A. Well if Lorna felt on horse needed more hay or less hay or had changed the feeding regime or water troughs had to be filled, garden needed to be watered it would be mentioned." (T 349) 65The defendant denied that anything was said by the plaintiff about Aletist being in season on the day of the accident: "Q. And was there anything said by the plaintiff about Aelitist being in season? A. No. Q. If something had been said by the plaintiff about Aelitist being in season would you have ridden Wrangler down to the area where Aelitist was situated? A. Absolutely not. Q. And why not? A. My job at Burke Stud was to handle the stallions for collection, in so doing and in many years of experience prior to that one becomes aware of what a horse is capable of from a physical and emotional standpoint when it becomes aroused, it's dangerous and under the best of circumstances is hazardous and you just simply wouldn't do it." (T 350) 66In cross-examination, the defendant denied being told, in either conversation: "Q. Can I suggest to you that a conversation occurred during one of these daily conversations between you and Lorna Watson do you agree with that? A. Quite likely yes. Q. And can I suggest to you that at the same time she told you that Aelitist was in season, that happened didn't it? A. No it did not. Q. And can I suggest to you, you said to here "that's fine", do you agree with that? A. No." (T 387) 67This was put to the defendant a second time: "Q. I want to suggest to you that not only did Lorna tell you over the telephone some days beforehand that she'd put the horses in there and Aelitist was in season, but she also told you on that very day just as you were about to set off riding, that's right isn't it? A. No it isn't." (T 393) 68Mr Jones went on to ask: "Q. Just before you set out did you have a conversation in which she reminded you that the two mares were there? A. No. Q. Yes or no, okay? A. I was feeding them, why would she remind me of that? Q. Well she also said to you not to forget that Aelitist was in season? A. No, absolutely not. Q. And can I suggest to you that she said the mares could always go in the spare paddock before we go up, if you like. That's what she said to you wasn't it? A. No. Q. And you said "No it'll be fine" didn't you? A. No I did not." (T 393) 69The defendant said that it should have been obvious to the plaintiff, if she knew, as it was obviously potentially dangerous: "Q. That's something she should have told you at the time? A. If she knew. Q. Yes? A. Sure. Q. Because it was something - I withdraw that. It should have been obvious to her that if you were to go through that paddock to get to the arena it may well have been dangerous if you were on Wrangler and one of the mares was in season? A. So what's the question? Q. That's because it should have been obvious to her that if you were to go through that paddock with one of the mares in season it may well be dangerous? A. I think that was obvious to everyone. Q. Even someone with a lot less knowledge and experience than Lorna? A. I would say yes. Q. Well can I suggest to you that the communication one of those mares was in season was indeed so obvious that she told you, do you agree with that? A. No." (T 395) 70In order to feed the horses, the defendant drove to her property very early in the morning before starting work and again in the evening after finishing. He would wheel the food (which the plaintiff had left out for him) along the track to the feed bins along the trail road, dump the food in and then leave immediately to return to the stud where he lived. He said that unless the horse showed its rear to him, he could not have observed "winking", and that horses did come to the food trough as he approached, but less than 50% of the time. The circumstances leading to the accident 71On the day in question, the plaintiff and defendant made preparations for their usual ride. The defendant was adamant, both in examination in chief (T 350) and cross-examination, that the plaintiff said nothing about Aletist in season. He said if he had known Aletist was in season, he would "absolutely not" (T 350) have ridden Wrangler to the area where Aletist was situated. 72The description given by the defendant of the circumstances leading to the accident vary, in that the defendant said he saw the horses Aletist and Butterfly facing them, and that Aletist did not have her back turned. He then described what happened as being as follows: "A. Wrangler took me toward those two horses like a locomotive, I tried pulling him up, I tried turning him, I tried doing everything that I think one could attempt with absolutely no result, I didn't know that we were going to stop at the fence, I was thankful that we did, at that point all I could think about was getting him away from those two horses, one of which or both must have been in season for him to be acting the way he was acting." (T 352) 73He came to the conclusion that one or other of the horses was in season because of Wrangler's behaviour. He did his best to get Wrangler under control. He told the plaintiff he was abandoning the ride and that she could go on, but that he would have to return with this horse. Wrangler continued to act up, although as they got further away the horse became more relaxed. He did not have any idea where the plaintiff was while he was endeavouring to control Wrangler. Once Wrangler had appeared to become calmer, he said "okay Lorna, what do you want to do today" (T 354) and that what subsequently happened was as follows: "A. I was relaxed, I was comfortable in the saddle and without warning I got chucked to the floor, in picking myself up, Wrangler seemed to momentarily stand still, I asked Lorna to do something, stop him, block him, hold him, whatever, I don't remember those exact words, while I was getting up, which was a split second, as I wasn't injured, Wrangler spun and went racing back toward those two horses. Freckles was running with him in that direction and he reached over and I could tell by the screaming he had a hold of Lorna's leg with his mouth and then somehow dragged her from her saddle and carried her some distance and both horses were beating her up with their hooves and their legs and she was screaming wildly." (T 354) 74The defendant saw the plaintiff lying on the ground injured in the pathway with the horses still loose. He was reluctant to move her because her leg was obviously fractured and he did not want to cause more injury. His first priority was to get help on the way and he returned to the house as neither of the plaintiff nor the defendant had mobile phones. Because the ambulance arrived, he gathered the horses because the plaintiff was screaming and he observed she had dragged herself under the fence so she did not get trampled again. Whether Aletist was "winking" 75The defendant was away from the plaintiff's property during the week when Aletist was put in the top paddock. How could he have known that Aletist was in season? The plaintiff said he knew because she told him. It would otherwise have been up to him to notice this. Mr Lawson, the expert retained by the defendant, states at paragraph 12 of his report (Exhibit 2), that unless the mare is very hormonal, it is easy to miss she is in season unless she is teased. However, the plaintiff's case is that it was particularly obvious that the mare Aletist was in season, because Aletist was "winking", namely displaying a stream of liquid from her twitching vulva, which was an indication that she was in season. 76Did the plaintiff in fact observe Aletist winking, or is this, as the defendant submits, a later invention? Mr Wilson states (written submissions, at paragraph 42) that the statement of claim does not describe prior observation of "winking", or the first conversation about it, despite going into considerable detail on a number of other issues and having the opportunity to amend on 1 June 2011. In addition, Mr Wilson submits that I should take into account the failure to refer to the mare Aletist "winking" in answers to further and better particulars provided by the plaintiff, to the instructions to the expert, and to the reports of Mr Sanna. 77Exhibit J, which is a letter from Graham Jones Lawyers dated 15 November 2010 to Mr Sanna, does not refer to the mare "winking". Mr Sanna's report of 6 December 2010 (Exhibit H) refers to the two mares in the paddock "one of which at least was posturing towards him" (page 2). Is "posturing" the same as "winking", or is Mr Sanna referring to the plaintiff's evidence that Aletist was displaying her rear? 78Whether or not "posturing" is the same as "winking". Mr Sanna goes on to refer to both "posturing" and "winking" in his next report of 29 June 2011 (Exhibit H): "3. On the assumption that the mare ALETIST was posturing towards the stallions as they approached the paddock, Mr Meyer should immediately have turned around to avoid, if it was not already too late, an increasingly dangerous situation. Again, I repeat that not all mares in season engage in open posturing or 'winking' at oncoming horses. The stallion's sense of smell could very easily pick up on a mare in season." 79Mr Sanna's report was prepared following a letter of 21 June 2011 outlining "further information with regard to alleged previous behaviour by the stallion "WRANGLER" and a request for more detailed information on matters previously covered." This would suggest that it was not until the letter of 21 June 2011 that the issue of whether "winking" occurred was raised. When looking at the letter from Graham Jones Lawyers of 21 June 2011 at paragraph 3, this appears to be correct, in that the following is stated: "3. We invite your comments regarding the conduct of the defendant on 5 October 2009 on the assumption that as he and the plaintiff were riding they continued to proceed even when they came towards a mare that was "winking" or on the assumption that they continued to proceed even when they came towards a mare (noting the time of year)." 80As to the final words in this letter, I note again that both parties have assured me that the plaintiff's claim is brought on actual knowledge, and not upon the fact that the defendant ought to have known that riding into the paddock at that time of year was dangerous. The principal purpose of the letter of 21 June, which was written after the hearing date was vacated, was to ask him to comment about particular (i), which introduced new material about Wrangler's prior disposition. The request for additional comments about "winking" (as opposed to merely posturing) suggests that this was not an issue put to Mr Sanna beforehand. The additional particulars also assert that the plaintiff and defendant continued even after they saw Aletist winking, but in fact it was the evidence of both the plaintiff and defendant that they turned their horses around almost immediately when Wrangler began misbehaving. The defendant said he never saw Aletist winking; he assumed from Wrangler's behaviour that one or both of the mares in the paddock must be in season and for this reason turned his horse around to go back. 81As noted at [75], Mr Lawson, the expert retained by the defendant, stated that it is often difficult to tell whether a mare was in season. This is effectively what Mr Sanna is saying as well, in that whether or not a mare was in season was not always obvious to people as not all mares engage in "open posturing" or "winking"; the stallion's sense of smell could, however, very easily pick up on a mare in season. The inference is that a mare being in season is something which might not be obvious to people, but would be obvious to stallions. 82Mr Sanna was cross-examined about his reference to winking; he stressed that he did not know if the horse had been doing that, as he was not there, but he describes the process as being the emitting of fluid and the contracting of the vulva for most of the period of time that the horse was in season, which could be a few days to up to a week, although some horses in the spring season (September to March) are more or less continuously in season. 83The evidence of the plaintiff about observing the horse Aletist "winking" on one occasion when she brought the horses home from the neighbour's property (T 24-25) and a second time when she and the defendant were approaching Aletist (T 40) are provided after pleadings and particulars were sought and expert opinions obtained. It was not part of the plaintiff's claim when Mr Lawson provided his report, which may explain why he does not deal with it. Mr Wilson adds that in cross-examination the plaintiff volunteered other examples of Aletist "winking" on previous occasions (T 266) although it was not particularised. He asks the court to find that all this evidence is a recent addition. 84The plaintiff's observations of the horse Aletist "winking" was important information for Mr Sanna. Mr Sanna's initial reference to the mare Aletist as "posturing towards the stallion as they approached the paddock" suggest that on his instructions, Mr Sanna was not told about the plaintiff's observations of Aletist "winking" almost a week earlier. However, I must exercise caution in this regard. It may be that the persons drafting the letter of instruction to Mr Sanna, and the statement of claim, did not appreciate the significance of this evidence. 85As noted above, the question of "winking" is linked to the other problem in the letter of instruction, namely the omission in this letter to the conversation the plaintiff said she had with the defendant about "winking" prior to the day of the accident. All those particulars say are as follows: "The Plaintiff and Defendant started to saddle up at about 2.30pm on 5 October 2009. As the Defendant was on his horse and the Plaintiff was getting stirrups and girth organised she said to the Defendant words to the effect "Will Wrangles [sic] be okay with Aletist up there? She is in season don't forget." The Defendant replied with words to the effect "He should be fine."" 86The evidence of the plaintiff on this issue has, Mr Wilson submits, a fundamental inconsistency. Firstly, the plaintiff agreed in cross-examination that she had never taken notice of Aletist's cycles prior to this event, despite saying that Aletist had a tendency to wink while in season (T 185), although mares are in season about once a month for up to a week: "Q. Did you take any specific notice over that period of two years about her behaviour in the period when she was seasonal, for example winking behaviour? A. I would have noticed it but I don't know that I made any specific note to myself in relation to that. Q. Are you able to say whether she showed any obvious visible signs of being in season? A. Aw well, she would wink when she was in season. Q. And did you notice for how long that occurred for? A. I can't answer that at this point. I'm aware that the season lasts about a week give or take depending on - apparently horses are all different, but I don't have any - what am I trying to say, I hadn't made any particular observations in terms of her patterns of behaviour if you like in relation to when she was in season other than if she was I would see it. Q. Would her season go only for two or three days where she was exhibiting signs of winking? A. I'm not sure that my - well I may well have made observations along those lines, I don't recall them now. Yep, sorry, I'm not sure what else I can say. Q. In relation to a mare being in season are you at the present moment aware of the seriousness in relation to keeping a mare away from a stallion during that period of time? A. I certainly am today." (T 185) 87The plaintiff went on to say that this was the reason why she had put these horses in the paddock the furthest away from his stallion and up at the back of the property (T 186). 88However the plaintiff said elsewhere in her evidence that this was the first time she had ever put horses in the arena paddock. She was very firm about this evidence. Yet Aletist was a horse which, according to her, winked regularly when in season, and would have been doing so while not only the plaintiff's stallion was on the property, but also while another stallion owned by the plaintiff had been on the property. 89The plaintiff gave evidence about horses being kept in various paddocks at various times, but there was no system for keeping mares in season apart from stallions. She said at T 187 that this was because she was not aware of there being any danger: "Q. You must have been aware of the dangers associated with putting a stallion in the vicinity of a mare in season, you must have been aware of that danger? A. Well I certainly am now. ... Q. You must have been aware of that danger? A. No, I was not aware." (T 186-187) 90She repeated at T 189: "Q. You realised at that time the potential danger of that situation? A. Like I said I was aware that his horse was a stallion and the circumstances of where we were going. I was not aware, although I am now, of the dangers that were awaiting." 91The defendant in written submissions calls attention to the inconsistency between the plaintiff making a point of telling the defendant, and then reminding him a second time, about something she did not consider to be important. The defendant's evidence was that if he had known, he would never have taken his horse into the vicinity. 92In written submissions, Mr Jones refers to the cross-examination at T 186 line 6-14 as follows: "Q. So were you aware of the need to keep, and this is again going back to the time of your injury in October 2009, were you aware of the need or the caution not to put a stallion near a mare who was in season? A. Yes. Q. You were aware of that? A. Well, and that's why I had advised Allan where I had put the horses and noted to him that they were the farthest away from his stallion and up the back of the property." 93However the plaintiff went on to say that she was not aware of the dangers of taking a stallion into a paddock where there was a mare in season as at 5 October 2009 (T 186 lines 25-28): "Q. Well as at 5 October 2009 when you were injured, were you aware of the dangers associated with taking a stallion into a paddock where there was a mare which was in season? A. No." 94Viewed in its totality, I am satisfied that, whether she observed Aletist "winking" or not, the plaintiff did not realise the danger of riding a stallion into a paddock where there was a mare in season. This is a relevant matter to take into account when considering whether the plaintiff told the defendant about Aletist's condition, and sought confirmation about any danger on the day of the accident. These inconsistencies cast real doubt upon whether the plaintiff did in fact observe Aletist winking, or appreciate its significance if she did. Issues of credit 95In relation to this issue, the defendant has made submissions about the plaintiff's credit, which I summarise as follows: (a)The plaintiff attempted to downplay her experience with horses, to minimise her experience and to maximise her asserted reliance upon the defendant, whom she portrayed as giving her lessons; (b)The plaintiff's specific answers in relation to questions such as whether Wrangler and Freckles had been ridden through paddocks with mares before (T 91), as opposed to very general answers when asked whether Wrangler had misbehaved or acted badly during the time he was on the property prior to her accident (T 90). The plaintiff did not answer the question and when it was asked again (T 94) it is asserted she was evasive. (c)The plaintiff and defendant were in a relationship which has now come to an end; and (d)The conduct of the plaintiff, including speaking to a witness during the adjournment. 96While great caution needs to be exercised when making findings of credit about witnesses, the way that the plaintiff minimised her prior experience with horses is relevant to this issue. In examination in chief, she portrayed herself as inexperienced and lacking in knowledge, and claimed to consult the defendant for lessons and advice, when she had been an experienced horsewoman since her early years; she had not only owned horses, but ridden in races, worked as a trail guide and worked at "Horselands". Horses were her main interest in life. The other matters relied on by the defendant are not, however, of relevance to the plaintiff's credit. 97Did the plaintiff rely upon the defendant's superior horse expertise? The plaintiff's written submissions (at paragraph 50) assert that there is reliance by the plaintiff upon the defendant's horse expertise "such that she was prepared to obey and conform to the directions he gave her" and that she held his horse abilities in high regard (T 21 line 5). The plaintiff's written submissions also claim that she sought out and obtained lessons and instructions from "persons such as the defendant", particularly with regard to western riding (paragraph 47) and that he advised her in relation to the selection of horses (T 20). 98The plaintiff did not give evidence of having lessons from anyone other than the defendant, and the details of these were extremely vague. Nor was there evidence that he advised her on the selection of horses; it was the plaintiff's decision to enter into a sell and swap agreement in relation to her horses, and on her own evidence the most she did was to consult the defendant about western riding lessons in this regard. Nor was there evidence of his being involved in the management of the property and animals on a day-to-day basis, apart from performing tasks at the plaintiff's request such as feeding the horses (written submissions, paragraph 51). The long hours the defendant was working, and the extent of his absences from the property, were not apparent until the defendant gave evidence. 99The plaintiff also submits that if the defendant was aware that the mares had been returned to the property at the height of the breeding season, then "it is likely he would have made that enquiry of the plaintiff" (written submissions, paragraph 83). No transcript reference was given for this, and I cannot find a question which amounts to putting this proposition to the defendant in these terms. The defendant submits, and I accept, that submissions of this nature would fall outside the case as pleaded and particularised. 100The plaintiff made a concerted attack upon the credit of the defendant both in cross-examination and in written submissions. It was put to the defendant that he had exaggerated his prior history of horse training activities (T 356-360) and that he exaggerated his involvement in the training of champions (T 360). In addition, it is claimed that the defendant acknowledged his wrongdoing by having the horse Wrangler shot. (This is dealt with in more detail in the section of this judgment at [242] - [249] below.) 101The plaintiff's written submissions also refer to the evidence of the defendant and Mr Boileau that when the defendant and Ms Fenner (the defendant's former wife) joined Mr Boileau on a brumby hunt, there would have been mares in season. The defendant said in his evidence that he was not apprehensive about taking Wrangler into a situation where he could be confronted by a mare in season, which the plaintiff submits in evidence that the defendant was unconcerned about the danger. 102However, this answer needs to be seen in context. Not even Ms Fenner gave evidence to this effect that it was dangerous to take Wrangler on a brumby hunt where there could be mares in season. Nor did the experts give evidence to this effect. The brumby hunt was an exercise in locating and attempting to capture brumbies, by a number of riders. It is the kind of activity to which I assume Mr Lawson is referring in his report where he says that the mere fact that a horse is a stallion does not mean that the horse should be "closeted away and never interact with other horses". It is up to the rider or handler of the stallion to look for possible problems or conflicts that could arise (Exhibit 2, paragraph 15) and this is what the defendant did on the brumby hunt. Conclusions concerning the conversations alleged by the plaintiff 103I am satisfied that the plaintiff did not appreciate the dangers of a stallion being ridden into a field where a mare in season was to be found, and that the conversation she alleges took place on the day of the accident never occurred at all. I am similarly satisfied that any conversation the plaintiff had with the defendant about seven days beforehand, on the day she brought Aletist home from agistment, did not include any reference to Aletist being in season, either because the plaintiff did not notice that Aletist was in season, or because she did not appreciate its significance. Taking all of the above into account, the plaintiff has not proved, on the balance of probabilities, that either of the conversations she deposed to took place. 104There are additional problems. The conversation on the day of the horses being brought back to the property seven days before the accident would not amount to an appropriate provision of information about riding dangers a week later to the defendant, who was living away from the property and who had returned, it would appear, only on the day of the accident. The crucial conversation is the conversation which took place at about 2.30pm on 5 October 2009, which occurred when the defendant was already on his horse heading out of the stable and the plaintiff was getting stirrups and girth organised (Exhibit J, page 1). The plaintiff and defendant had already decided to go for a ride and were on their way. This is not a conversation of reliance; it is a discussion between two experienced horse riders of a very brief nature, which is relevant to the issue of both volenti and obvious risk. 105However, if the defendant had knowledge of prior bad disposition of the horse Wrangler, and of the horse's tendency to become excited in the presence of other horses, whether mares or not, that would be a different basis upon which negligence could be asserted, and it is to this evidence that I now turn. 106None of these incidents involved a horse in season. A finding of the horse having a bad disposition is evidence I could accept independent of any finding as to whether or not the defendant knew that the horse Aletist was in season. Evidence in relation to the prior bad disposition of the horse Wrangler 107It was the addition of particular 10(i) to the Amended Statement of Claim, concerning the alleged known propensity of Wrangler to become excited or agitated in the presence of other horses which led to the adjournment of the proceedings before Elkaim DCJ on 1 June 2011. 108The plaintiff, in the opening to these proceedings, identified three examples as follows: "Now if I could just stop there because your Honour will also hear some evidence that there'd been problems with this stallion Wrangler in the past. Particularly in the presence of other horses and particularly mares. Your Honour will hear evidence that at one stage whilst the defendant was riding Wrangler with another person who was riding a mare Wrangler had, whilst the other rider was still on the mare, attempted to mount the mare and that is particularly dangerous. Such that Mr Sanna says that if that had been known Wrangler would have been banned from any competition because of the dangerousness demonstrated by that action. It would be classified as a dangerous horse. Furthermore, in the past Wrangler had escaped from its paddock and this is before the defendant knew the plaintiff in order to try and gain access to a paddock in which there were some mares and Wrangler had, as it were, gone quite berserk charging up and down the fence trying to get into the paddock where the mares were. Then on a third occasion, also in the presence of other horses, Wrangler had been taken to a show and it had been secured to the horse trailer and then, in the presence of the other horses, had spent its time rearing and what's called screaming. So that it was known that this horse, Wrangler, had difficulties in the presence of other horses particularly mares." (T 3) 109The plaintiff's own evidence does not touch upon any of these events, which occurred prior to her association with the defendant. As counsel for the defendant points out in his submissions (paragraph 137), the plaintiff is limited to the pleading. There are no particulars indicating that the horse Wrangler is alleged to have misbehaved in the presence of the plaintiff prior to the events on the day in question. 110The principal witness to these events, on the part of the plaintiff, was the defendant's former wife, Ms Kate Fenner (T 284ff). The defendant called three witnesses: Mr Boileau, Mr Burgun and Mr Chant. 111Mr Sanna, the plaintiff's expert witness, provided reports dated 6 December 2010, 9 May 2011 and 29 June 2011. These were short reports and the subject of some qualifications in the witness box. His evidence on relevant issues is referred to in relation to the particulars of negligence set out in this judgment. 112Mr Robert A Lawson, the defendant's expert witness, provided a four-page report which is Exhibit 2. He was not cross-examined. The contents of that report are also referred to where appropriate in relation to the particulars of negligence set out in this judgment. (i) The Braidwood incident in 2006 113This was particularised as follows: "In about 2006 in Braidwood the defendant was riding Wrangler and another person was riding a mare. As the horses were attempting to go through a gate Wrangler tried to mount the mare whilst it was being ridden." 114Ms Fenner's evidence of these events is that in 2006 she and the defendant were at a property near Braidwood to take part in the rounding up of some wild brumbies. Ms Fenner was riding a horse she had bought in Australia as a three year old, which had just been broken in, so the horse had been under saddle for a very short time. The defendant was riding Wrangler. She described what happened as follows: "A. We came to a gate and Alan was, in an attempt to open the gate and the horses obviously got too close to each other and Wrangler tried to mount my mare and as he did that he came down and one of his front feet landed quite heavily on my knee and that was quite painful so I moved my horse away and we eventually got through the gate, I can't really recall how, but I just made sure I kept a good distance away from him after that. Q. How long have you been riding horses for? A. All my life. Q. And how did you regard in terms of horse play, the attempt by Wrangler to mount your mare? A. Well it just told me that he wasn't under proper control. It is extremely dangerous if a horse rears up you know he could have, he hit my knee which was probably quite lucky, he could have hit my back, he could have hit my head, it is a very dangerous situation." (T 294-295) 115In cross-examination, Ms Fenner discounted the inexperience of Wrangler, who was on his first trip of this kind, and the new surroundings in which he found himself (T 295) and said that the horses "got too close to one another" (T 295 line 47). The question was whether Wrangler attempted to mount the horse or was merely prancing around. If it was the latter, such conduct was, in the opinion of the plaintiff's expert Mr Sanna, completely unexceptional: "A. Well my take on that is that there is a sort of, there's a bunch of things in there that I don't think were appropriate handing the reins of stallion to someone sitting on a mare was pretty inappropriate. It seems to me, maybe Mr Meyers was being a gentleman and doing the gate, I would have kicked the wife off and got her to do the gate if I was on a young excitable stallion. But given that he felt compelled to do the gate I though handing the stallion to her was probably not a smart thing to do. We are dealing with a totally different set of facts. If you're asking me was it a great piece of horsemanship no but it he didn't mount the horse then it didn't mount the horse I don't know. HER HONOUR Q. We are more interested in the horse than the skills of rider. The thing is that this is a horse that had just been broken who was on its first trip out, bulked [sic] a bit at a gate and was then prancing around. Now is this a horse that's dangerous, unruly? A. No it's pretty much what you would expect from a young horse and especially a young stallion. If he didn't mount the horse and he was being held next to it by the reins by someone sitting on mare and he didn't try and mount it then he deserves a gold star." (T 152) 116Wrangler, at about 14 and 2 hands high, was not as tall as Ms Fenner's mare, which was 15 and 2 hands high. Ms Fenner was certain that Wrangler had to raise his front end in what she called "a rear or mounting motion" because he had landed downwards on her knee (T 296). 117Ms Fenner suffered no injury to her knee beyond a bruise. It did not require any treatment, or even a brief rest. Another person called by the defendant, a Mr Campbell Boileau, who travelled with the defendant and Ms Fenner on what he called the "brumby chase" (T 414) not only knew nothing about this incident, but knew nothing about any bad behaviour by Wrangler throughout the trip. He commented at T 415: "Q. What was your observations of Wrangler's behaviour during the course of the brumby chase or being on that property during the brumby chase? A. When the horses were penned at night I didn't appear to have any trouble with Wrangler upsetting the other horses or - I mean he could have whinnied or squealed or rushed the fences if he'd wanted to get to the other horses but I didn't observe anything like that. During the riding, the day when we crossed paths with Alan I didn't see any real problems. I was just - I was worried at the time because there are stallions in amongst the other brumbies so I was just mindful that may have attacked someone else's horses but we didn't have any problems anywhere like that." 118Mr Boileau said that the herd of 200 to 300 brumbies which they were chasing would have included mares in season (T 417) and that Wrangler appeared to behave appropriately during the times that Mr Boileau encountered the horse. He recalled one occasion when he saw Wrangler being excited, but when on to explain that this was the case for all the horses: "JONES: I'm looking at the behaviour and the controllability of the horse on this muster. WITNESS: I would say that the behaviour was that of a three-year-old horse but not a stallion. I noticed that he wasn't - he didn't attack other horses or do anything like that, but he was just simply an excited horse galloping amongst other horses, the same as all our horses were at the time." (T 419) 119Mr Boileau was aware of the events in which the plaintiff was injured and the defendant subsequently had Wrangler put down. He described a conversation with the defendant as follows: "A. He said to me that he did it for the sake of Lorna coming back that she wouldn't have to see the horse. He said to me that Lorna had an accident, he said that the horse had taken her off the horse, carried it in its mouth and she was in hospital and that he'd had the horse put down so that when Lorna came back the horse wouldn't be there. Q. And at any stage had he approached you about agisting the use perhaps on your property? A. No he hadn't. I think he rang me two or three days after the accident to let me know that Lorna had had an accident and that she was in hospital and what had caused the accident. ... Q. Did he, that is Mr Meyer, discuss with you the dangers that had been associated with that day in question, that is the day that Wrangler attacked Lorna Watson? A. I just don't quite understand. He just simply told me that the horse had attacked Lorna or had become aggressive and injured Lorna and then that he'd had the horse but down, other than that I didn't ask him any questions about whether he thought it was a wise thing to do or not, I just accepted it, that it was after the fact and there was no point in trying to change anything." (T 422-423) 120As is noted elsewhere, the Braidwood incident was the one upon which Mr Sanna based his opinion, in that he uncritically accepted the account of events given by the plaintiff, namely that of a rider put in danger by reason of one horse trying to mount another without inquiry as to whether the horse was sexually excited or whether there was another explanation for these events. Mr Sanna's revision of this evidence in the witness box at T 152 was significant. Conclusions concerning the Braidwood incident 121Ms Fenner is the defendant's former wife. Caution should be exercised when considering issues of credibility of a witness, but Ms Fenner's hostility towards her former husband was very evident. She was dismissive of his claim that he had trained three international champions (T 299) and referred a number of times to Wrangler as having insufficient training (for example T 302-303 and 313) and as having caused her concern in relation to each of the three incidents, in dramatic terms (for example "very dangerous, quite frightening" at T 297). 122Ms Fenner suffered no injury beyond a bruised knee which does not appear to have prevented her carrying out her activities on the day in question. Mr Boileau, who was also present, did not even know about this incident. 123All of this suggests an incident of minor proportions. I also note the concessions of Mr Sanna in cross-examination, in which he revised the opinions he expressed in his report. 124Taking all of the above into account, I am satisfied that this was not evidence of Wrangler behaving dangerously, but the horse rearing simply because another horse had come too close. It is not evidence of Wrangler's bad disposition. (ii) The paddock escape incident in 2007 125Ms Fenner described this event as follows: "A. Alan and I came in, in the car, initially he decided he might try and sort of round him up in the car, which obviously wasn't going to work we realised that very quickly, and we got out of the car and he was trying to catch him, but Wrangler was very excited and it was really a very dangerous quite frightening situation because the stallion was galloping the fence line and he wouldn't be caught and he - we did eventually catch him but it took quite some time, I was quite nervous." (T 297) 126The particulars relied upon by the plaintiff were read by Mr Wilson for the defendant to Mr Sanna in cross-examination, and Mr Sanna's response is of relevance, given the defendant's admission that his failure to lock the gate was the reason Wrangler had got out: "Q. The second incident that you have been provided information about and I will read from the letter of instruction. "In about 2007 Wrangler got out of his paddock and got into a paddock close to two mares. Wrangler was charging around and was very excited and agitated. The defendant had great difficulty restraining the horse and requested assisted from another person who was present." I think you evidence is that that really didn't cause you any real concern or the facts didn't form any basis for your opinion that Wrangler was unruly or of an unruly disposition? A. No I agree with that, that's what you would expect with any stallion. The only thing is it depends on how he got out of the paddock. If someone left the gate open or did he clamber through a decent well built fence to try and get to the mares? That's more the issue. I have no information on that, if someone e [sic] left the gate open or if it was a flimsy little bit of electric tape or something like that and he just stepped over it, then that's to be expected. If he clambered through a decent sort of fence to get to the mares that exhibits a little bit more, well a lot more, than normal behaviour." (T 152-153) 127Mr Sanna went on to explain at T 153: "Q. One night after accomplishing the evening feed routine one of the gates was neglected and left open. This allow two mares, one of which was known to be in season, to share a common fence with Wrangler that's what occurred? A. So then he probably clambered through the fence. Did he get in with the mares or. Q. Because of the fact that they were adjacent? A. Yes. Q. So that behaviour would be quite natural? A. Well you'd expect him to get inside if he can get up against the mares for sure. There are some stallions who, as I say, are not especially interested but most stallions would behave in that way." 128The defendant blamed himself for this incident. He had not locked the gate, and he said this was why the horse had got out of the paddock: "Q. There was an incident involving - when Wrangler got into a common fenced area whilst you were living at Tiyces Lane, is that correct? A. That's correct. Q. Could you describe to the Court what occurred on this occasion? A. One night I forgot to close the gate after feeding, which allowed two mares to get to a common fence with Wrangler, and during the night I think he must have jumped the fence and was out with them the next morning when I went down to feed again. Q. And when you say that he was with the mares, what was he doing? A. He was grazing, so were the mares." (T 334) 129The defendant's cross-examination did not include a challenge to his admission that he had forgotten to close the gate: "Q. You told the court that there was an incident in which Wrangler got in with two mares at Ticey's Lane and you told the court that when you went there he was grazing with the mares. Can I rather suggest to you that you and Kate Fenner were - you came upon the property and Wrangler was running up and down and you and Kate Fenner had to try and restrain him and retrieve him, do you agree with that? A. No because I was the one that always did the feeding, I was the one that went down there and discovered that he was out and you don't restrain an animal. I put a halter on him, I did go up and tell Kate that he was out and asked her to assist me and we went down and haltered him and walked him back to his paddock. Q. Wrangler was galloping along the fence line wasn't he? A. He may have - yeah galloping, no I don't think he knew how to gallop but he was cantering. Q. It would be wrong to give the impression that he was simply standing in the paddock grazing on some food with these mares, that would be wrong wouldn't it? A. No we're comparing apples and oranges. When I first went down there he was quiet as and grazing. I went back and told Kate and asked her to come down with me because there was going to be an obvious need to get the mares as well for the typical after next morning shot. Q. If he was just grazing you could have gone up to Wrangler, taken hold of him and put him back in his own paddock, couldn't you? A. I did. Q. You wouldn't have needed Kate Fenner to do that? A. I just explained why I went and got Kate. Q. All I'm putting to you is that you didn't need Kate if Wrangler was simply standing there grazing food? A. Need no, probably not. HER HONOUR Q. Well one moment, am I right in thinking your evidence was that you put Wrangler back and you got her to give the morning after shots to the mares? A. Yes your Honour. HER HONOUR: Well that's what he said. JONES Q. Didn't you need the two of you to try and get Wrangler? A. No." (T 379-380) Conclusions concerning the paddock escape incident in 2007 130Ms Fenner's account of this event was overly dramatic ("very dangerous", "quite frightening", "quite nervous" - T 297). The defendant said he was to blame for not locking the gate. Mr Sanna agreed at T 153 that most stallions would behave in this way. This is not an incident of significance and does not demonstrate the conduct asserted in particular (i). (iii) The Wingadene show incident in 2007 131The third particular of prior bad behaviour by Wrangler was as follows: "At the Wingadene show in 2007 Wrangler was misbehaving and was screaming and rearing in the presence of other horses. Wrangler was excited and agitated for most of the day and had to be restrained." 132Ms Fenner described this as follows: "Q. In 2007 at some stage did you and Mr Meyer go to the Windradyne [sic] Show? A. Yeah Windradyne Quarter Horse Show yes. Q. And was Wrangler taken along? A. Wrangler was taken along, along with the old polo pony that my son rode. Q. Now at some stage was Wrangler secured to a trailer or horse float? A. Yes he was. Q. And did something happen? A. Yes he just was very badly behaved he was raring, sort of jumping up and down and calling out all the time and just very restless and quite badly behaved. Q. How long did that behaviour go on for? A. The rest of the day that we were there, Alan took him in some classes and for western, the horse is supposed to be very relaxed and have its head low and Wrangler had his head quite high and he wouldn't jog and he was trotting and he was basically very excited all day long. Q. And were there other horses in the immediate vicinity? A. Yes, yes. Q. Now Mr - we are told that Mr Meyer says that he settled down the horse and went on to win a medal at that show, what do you know about that? A. I know that he did come home with a couple of ribbons from the show. I also remember that he didn't actually beat any other horses, if you - I remember one of the classes there was three horses in hit and he got a third, and he went in a couple of other classes, but I don't remember him actually beating another horse and I don't know what the medal is about, I don't think any medals were awarded at the show." (T 297-298) 133Mr Sanna's evidence was as follows: "Q. The third incident that you were provided with was at the Wingadene(?) show in 2007. Wrangler was misbehaving. Was screaming and rearing in the presence of other horses. Wrangler was excited and agitated for most of the day and had to be restrained. Did you place much emphasis on that as a basis for any opinion? A. Only to form a view that it's not a dobbin. You know like with a dobbin, in the industry something that's really quiet. I mean he's obviously, he has a propensity to get excited and in certain situations he appears not to be very quiet and very amenable in certain situations and I can see in certain situations, as from the photograph with the ..(not transcribable).. on him he's very, very quiet. Q. Yes. If the facts in that situation were just briefly that Wrangler didn't want to be tied to the trailer as everyone passed by, walked past that particular trailer and he demonstrated this by calling and frolicking though he was a nuisance he didn't interrupt the show or break away or run amok as some horses tend to do and also Mr Meyer saddled him and rode him in open company in the warm up arena thereafter until it was time for him to show. The first event for him was the stallion class and he did very well. Then later in that day he was again ridden in open and mixed company, in other classes, to demonstrate his ability to perform under saddle. He was well placed in these particular events. This was a sanctioned show and if the judges had deemed him to be a danger or disruptive he would've been expelled. So does that set of circumstances change your view about the manner in which Wrangler behaved on that occasion? A. I think it's normal. They get excited. They're put in a particular place. They don't particularly want to be there. They get excited. They scream and holler and maybe kick out at anything that comes past. That's why, in our sport, we have to have green discs on the horses, on stallions, so they're identified by other competitors. So they have a green disc on their bridle or on their saddle cloth to identify them because they're much more likely to kick or to be unruly. When the horses are tied to the float they have to wear the green disc and the float has to have a green disc on it so people walking by aren't going to get too close because they're very likely to try and lash out and kick anything that comes by and then the fact that he's then ridden. That means he's becoming a trained horse and he knows by and large sometimes that he's to behave himself. That's all I think sort of normal stallion stuff. Q. So again the factual basis is now that you've been appeased of maybe an alternate set of facts in relation to those three events, does that change your opinion about the demeanour or character of Wrangler? A. Yes it does although I wrote my first report without any reference to that information which came along fairly later so just, you know stallions are stallions and they need to be - they're never to be taken for granted. That's the bottom line. Q. And that fact that stallions are never to be taken for granted is something which is well known in the horse industry isn't it? A. Of course, yeah."(T 153-154) 134The defendant said in his evidence that this had been the first time he had driven to the show and he had parked his car in the worst possible place in that, having arrived early, he picked a spot which turned out to be on the main thoroughfare where there was a lot of noise and there were many passing horses. He said that this was what distressed the horse, but that the horse's distress had not prevented him from entering the competitions he had been brought to enter, and from receiving a prize. 135The only issue of bad conduct about which the defendant was cross-examined was as follows: "Q. At Wingerdeen [sic] Show was not only excited and calling he was also rearing wasn't he? A. No he was tied to the trailer at the point I think you're bringing in the question, and being tied to a trailer it's impossible to rear." (T 380) Conclusions concerning the Wingadene show incident in 2007 136This is conduct that was described by Mr Sanna as "normal" for stallions. On the day in question, Wrangler was still well-behaved enough to participate in events and to win a prize. 137There was other evidence about Wrangler's behaviour at pony club shows, where he was able to mix in a quiet fashion with children and to be taken through his paces by the defendant. 138The plaintiff's claims in relation to particular (i) concerning the Wingadene show incident have not been made out. Other evidence about the disposition of Wrangler 139The defendant points to the following evidence which is inconsistent with evidence of a horse which is troublesome in nature, and/or known by its owner to be troublesome: (a)Photographs of Ms Fenner's nephew George (a small boy, about 10 years old) riding Wrangler were hard to explain after the alleged "bad behaviour" she claimed Wrangler had shown (T 298 and T 303)Ms Fenner described the circumstances of this photograph as follows: "Q. And what can you tell us about the circumstances of the photographs being taken? A. I think George had wanted to have a ride on a horse and Wrangler was there, I mean George has got his helmet on he is sitting on the horse, the stirrups haven't been adjusted or anything but Alan is very close by and he is leading him in most of them, I then remember I asked him just to step aside so we could get a picture of George riding the horse, you know, all by himself, so Alan was just outside the frame of the photograph, but the horse is you know, in its own environment, there are not other horses about and no reason why it shouldn't be quite quiet which it was. Q. Now what do you say about any suggestion that such a photograph is consistent with a docile Wrangler stallion? A. Well I think that stallions aren't sort of thinking about mounting mares all of the time and if you have them in a situation where there aren't any other horses about, like this is, and it is in its home environment, there's nothing unusual going on and the horse is just lazily walking around the arena, I don't think it is particularly unusual, I don't think it says particularly anything about the horses actions in other situations or if you put another horse there it would be quite a different animal. So I don't think it is very-" (T 298) Ms Fenner said in cross-examination that she would not have allowed her nephew to go near the horse if there is another horse around. However, she went on to say that she had never permitted her nephew to ride any of those other stallions. (b)Ms Fenner permitting Wrangler to remain on her property with other horses in season.Ms Fenner agreed that she never remembered seeing Wrangler bolting while he was riding (T 305), that there were mares on her property which had been in season, and that she had never witnessed any problems the defendant had with Wrangler in relation to these horses: "Q. There was times that Mr Meyer would have written on that property when there was mares in season, that is correct, isn't it? A. Yeah, but he never rode through paddocks. Q. No, I am not suggesting that I am just saying in the vicinity of them riding past them within 20 metres or whatever distance it would have been when you're riding along past a paddock where a horse is in it? A. Mm. Q. And there were never any incidents that you can recall or you witnessed whereby Mr Meyer had problems with Wrangler in that regard? A. No, not when he was on the horse. Q. The only incident that you have given evidence about was this incident whereby in 2007 Wrangler got out of his paddock and got into another paddock close to two mares? A. Yep. Q. That is normal behaviour sometimes for a horse, isn't it, to get in and be a little bit frisky, charging around with other horses when they are not used to those horses, that is normal behaviour, isn't it? A. For a stallion, yes, because they're quite dangerous too. It is quite dangerous to be around. Q. I appreciate that. Stallions are quite dangerous to be around, aren't they? A. They can be, yes. Q. You know that? A. I do. Q. You're a woman who has extensive experience in the horse industry? A. Mm. Q. You need to answer? A. I do, I do I suppose, yes. Q. It is common knowledge in the horse industry, isn't it, that stallions are dangerous? A. It depends on what you're doing with the stallion. I mean if you have a loose stallion it is a dangerous thing. If you have a stallion a well trained stallion that's under control, it is not necessarily a dangerous thing. I mean I think it depends on the stallion, it depends on the stallion's level of training. ... Q. Even if he is in an environment whereby there are other horses around in their paddocks and he is in his own paddock then just like he was at your property? A. Yeah but he was a long way away from other horses in my property so I mean in this new property, I don't know, it would depend I mean if he is very close to another horse then he can smell the other horse he might get excited I couldn't tell you, I don't know. I don't know how close he is. I have no idea. Q. If a horse is on - a stallion is on a property for ten months, doesn't cause any problems then you would have to, in your experience, have to imagine that the horse is reasonably comfortable and has acclimatised to the other horses around, wouldn't you? A. You'd have to assume that nothing at all changed." (T 306-307) Ms Fenner agreed that apart from the incidents she had described in court, she had no other incident upon which she could express any opinion that Wrangler was not comfortable or well-behaved around other horses (T 308). (c)The Defendant rode Wrangler in the vicinity of other horses whilst on Ms Fenner's property without Wrangler causing any problems (T 304).This included riding on occasions when there were mares on the property in season (T 305), participating in horse shows where there were many other horses present and rides Ms Fenner took with the defendant where he was riding Wrangler. 140Mr James Chant agisted Wrangler on his property for two to three months. No precise dates were given for this, but it was during the period of time between the defendant's separation from Ms Fenner and his going to live at the plaintiff's home, so it would have been about a year before the accident. He was able to observe Wrangler's behaviour almost every day, as the paddock was close to his workshop. He said that Wrangler did not cause any problems, in that he was not a horse standing at the gate trying to get out. He said "he was no problem, he was never a concern" (T 478). On one occasion, when the farrier came, Mr Chant's daughter went into the paddock and caught Wrangler without difficulty (T 479). 141Mr Chant also observed Wrangler at a pony club event. Mr Chant was one of the persons in charge, and was very busy, but said that if the horse had been playing up, it would have immediately come to his attention (T 481). 142Mr Burgun, the manager of rural operations for the Sydney University, manages a number of properties for Sydney University running their livestock operations (T 447). He resides on a mixed grazing enterprise with merino sheep and beef cattle at Marulan, as well as other properties for the university. There is a horse unit at Camden and Mr Burgun uses stock horses on the property he works on. He has seven horses, in addition his children are recreationally involved in a pony club. He described Wrangler participating in pony club rallies on three or four occasions and he described the horse as "reserved and under control" (T 468). The defendant took him to the pony club to show how horses were broken; this was a demonstration for children. 143Mr Burgun said he had been physically attacked a horse which bit him because he had some hay the horse wanted (T 468-469). Mr Chant gave similar evidence (at T 481), as did Mr Boileau. All three witnesses made it clear that horses can be dangerous. Wrangler, however, was a well-behaved horse. Conclusion concerning Wrangler's disposition 144Mr Sanna commented: "Q. If a stallion such as Wrangler was on a property for a period of ten months, would it be fair to say that observing Wrangler over that period of time if there was no observations of any unruly behaviour that you would consider that a horse such as Wrangler would be of good disposition? A. I think it is fair to say that that's how you form an assessment of a horse, the longer time you spend with it the more likely you are to predict what he is likely to do. Q. If I was to suggest to you that Wrangler was on the property which you went - the plaintiff's property, Ebenezer for a period of ten months and during that period of time that there were no difficulties with the handling of Wrangler whilst he was being ridden around by Mr Meyer on a regular basis where there were mares in paddocks - would you say that Wrangler would then be a horse of good disposition? A. Certainly very relevant that sort of history, yeah." (T 135) 145The plaintiff had no prior experience of bad conduct or incidence involving Wrangler, although she was reluctant to concede this (T 90 and 94). The three incidents referred to by Ms Fenner, the defendant's former wife, are set out above. I have rejected these claims. Mr Sanna, the plaintiff's expert, made appropriate concessions in cross-examination when additional factual material was provided to him. The three witnesses called by the defendant gave objective and convincing evidence about their personal observations of Wrangler. Questions were put to them by Mr Jones in cross-examination about the defendant's conduct on the day of the accident, and about incidents which these witnesses had not observed, but as these were lay witnesses, I propose to treat this evidence with caution. The evidence of their personal observations of Wrangler is, however, in a different category as it is direct observation rather than surmise or opinion. 146All of the evidence points to Wrangler being, for a stallion, a well-behaved horse with no prior history of misbehaviour. There is no prior history of his attacking anyone due to excitement because there was a mare in season; he had behaved well in the presence of the plaintiff and the horses she rode on other occasions; he had behaved well in the presence of objective observers who were themselves quite skilled horsemen, such as Mr Burgun, Mr Boileau and Mr Chant; he had behaved well in the presence of children; he appears from all accounts to have been a well trained horse in that the defendant is a skilled horse trainer. These findings of fact are relevant to a number of the particulars, but principally to particular (i). The existence of a duty 147The first question is whether or not there is a duty of care owed by the defendant to the plaintiff in relation to the case as pleaded. The plaintiff in written submissions (paragraph 33) draws my attention to the statement in Flemming Law of Torts, 10th Edition 2011 at [17.100] that: "The ordinary duty of care requires that an animal, like anything else under one's control, does not become the source of harm to others. It matters nothing whether the Defendant causes a collision by negligently driving his car or galloping a horse." 148The defendant in written submissions draws my attention to the statement of Beazley JA in Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [34]-[35]: "[34] Notwithstanding a tendency for judges to cling to Mason J's formulation in Wyong v Shirt, claims for personal injury damages are now governed by the Civil Liability Act, subject to the exclusionary provisions of Pt 1 and, perhaps, cases which involve positive acts of negligence, to which I refer later. [35] In Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 the High Court, at [11], warned that if attention was not directed to the Civil Liability Act first, there was a serious risk that "inquiries about duty, breach and causation would miscarry"." 149The defendant also refers to Doubleday v Kelly [2005] NSWCA 151 at [15]-[16], where the Court of Appeal stressed the importance of the response of a reasonable person in the position of the defendant as to the foreseeability of risk of injury. 150The law of negligence is governed by the Civil Liability Act 2002 (NSW). It is necessary, when considering actions for negligence, to start by setting out the relevant statutory provisions. 151The Civil Liability Act 2002 (NSW) in Division 2 (headed "Duty of care") sets out general and other principles at ss 5B and 5C as follows: "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. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 152Duty of care issues need to be seen in context. The plaintiff and defendant were indulging in a recreational sporting activity, namely horse riding. The defendant's duty of care is to exercise reasonable care riding his horse so as not to injure others. The principal question is whether or not he knew that he was riding into a paddock where the horse Aletist was in season. There are also questions as to how the defendant responded to the danger, and whether his horse was known to him to have a bad disposition. It is for this reason that, in relation to consideration of issues of the defence, I have set out the provisions of ss 5F and 5G in relation to voluntary assumption of risk and s 5L in relation to obvious risk of a dangerous recreational activity. 153Concepts of duty of care owed by participants involved in recreation or sport have been the subject of analysis in a series of decisions. An early High Court decision, Rootes v Shelton (1967) 116 CLR 383, sets out (at 385) the parameters of the duty of care owed by participants in a sport: "By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connexion, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist." 154Kitto J went on to say at 389: "It may be a moot point, as Dixon J regarded it in Insurance Commissioner v Joyce (1948) 77 CLR 39, at p 57, whether, in a negligence action, a plaintiff's voluntary acceptance of a risk should be considered as bearing upon the question whether the relation between the parties was such that the defendant owed him a duty of care, or to the question whether the standard of care which the defendant was under a duty to maintain towards the plaintiff was higher than that which in fact his conduct reached. But the issue on either view is whether the defendant's act or omission was a breach of a duty of care which he owed to the plaintiff; and accordingly in a case such as the present it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organized affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the "rules of the game". Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances." Breach of duty 155I have set out above the relevant extracts from ss 5B and 5C of the Act, and, at the risk of repeating myself, note once again that this is a case which has been fought on the issue of the defendant's actual knowledge, and not a claim of constructive knowledge on the part of the defendant. 156The particulars of breach of duty essentially relate to the circumstances in which the defendant allayed the plaintiff's fears or concerns about riding into the arena paddock in circumstances where both of them knew that the horse Aletist was in season. This is not a case where it is asserted that it was negligent for the defendant to ride his stallion into the arena paddock regardless of whether or not the mares in the paddock were in season; the case has been fought on the basis of the pleadings, namely that the defendant had actual knowledge of this fact. 157As Mr Lawson points out at paragraph 12 of his report, mares do not always demonstrate that they are in season unless there is a male horse around. Unless the mare is a very hormonal mare, it is easy to miss she is in season unless she is teased. In the present case, it is asserted that it was visually evident that Aletist was in season because she was "winking", namely releasing fluid from her vulva, which would have been visible to anyone experienced with horses. 158The other particulars of negligence relate to the circumstances in which the defendant directed the plaintiff, once he had been thrown from Wrangler to the ground, to try to grab Wrangler's rein otherwise to stop him from getting into the field where the mares were. 159The third general area of breach of duty is the material set out in particular (i), namely prior knowledge of the horse Wrangler becoming excited in the presence of other horses and in particular mares. 160In addition, if breach of duty is established, the issue of causation may arise (s 5D(1)(a)): Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420 at [54]-[55]. The breach of duty must be established to have caused the injury. Particulars of negligence 161I now set out the evidence in relation to each of the particulars of negligence pleaded by the plaintiff (a) Failing to properly and/or adequately control his horse Wrangler. 162The defendant's written submissions point out that the answers to particulars in relation to this claim assert that the defendant did not have proper control of Wrangler because "Wrangler threw the defendant off him and charged at the plaintiff" and "the defendant should not have been riding Wrangler in the vicinity of Aletist". This is essentially a restatement of the claim in other particulars of negligence, discussed in more detail below, to the effect that the defendant failed to have proper control over his horse. I note my findings that the plaintiff did not tell the defendant the horse Aletist was in season. 163However, independently of whether or not the defendant should have been riding Wrangler near a horse which was in season, there is a question of how a person riding a stallion should manage that horse when it comes into contact with another horse in season. 164Mr Sanna's evidence at T 139-140 was as follows: "Q. If you were riding a horse and saw mares at that gate or barrier, you would attempt to turn the horse around, is that ride? A. The stallion for sure. Q. If the stallion attempting to cantor swiftly towards that barrier where the mares are you would attempt to turn the horse around? A. Definitely. Q. If I suggest to you that's what Mr Meyer did - in other words, he attempted to turn Wrangler around then your opinion would be that that was the actions of a reasonably prudent rider of a stallion? A. Definitely. Q. If after controlling the horse, the stallion, and being able to have the horse under control to be walking back towards the direction in which it came, walking back probably a distance of maybe 100 to 150 metres and the horse was acting - in other words the stallion was acting quietly and you as the rider had that stallion under control and you were walking back and you were returning the stallion back to its stable or the area where it is enclosed, would you consider that to be the actions of a reasonable, prudent rider of the stallion? A. If those circumstances were the case, yes, definitely. Q. If you got to a point 150 metres away from the area where the mares were located and the stallion unexpectedly bucked you from the horse would that be something that you would have expected to have occurred under those situations? A. It is certainly not impossible at all. I think the fact that the horse is wanting to go that way, you'd want him to go that way until you've got him secured there is always a chance that he is going to maybe spin around, rear up, buck or try and assert himself in some ways but there is - I wouldn't discount that there is a strong chance that that could happen. Q. Having been bucked off the horse, the stallion, the behaviour of the stallion or the manner in which Wrangler behaved - in other words, went directly back to the mares in question was predictable, is that right? A. Yes, I would - that's what you would expect him to do, yes. Q. And if there was a moment when the stallion was standing stationary after you'd been bucked, would you try to restrain or grab onto the stallion? A. If you can get to your feet quick enough assuming he'd bucked you off and you're on the ground. If you can jump up and grab him that would definitely be a smart thing to do yes." 165It was put to the defendant that he had lost control of the horse. While the defendant said that he had been thrown unexpectedly, the plaintiff submits it was not completely unexpected because of the horse's prior behaviour in trying to get to the other side of the fence with the mares (T 437). 166The defendant's response to this danger, namely to endeavour to walk the stallion back to the stable area was, as Mr Sanna pointed out at T 140, the action of a reasonably prudent rider of a stallion. The question of whether it was inadvisable for him to be riding this stallion in the vicinity of a mare in season is dealt with in other particulars set out below. 167Mr Lawson's report makes no comment on this particular. At T 150, he does however say that when riding a stallion, it is essential to be always looking for possible problems or conflicts that could arise. However, Mr Lawson does not identify any negligence by the defendant in response to the danger, such as an alternative course of conduct. 168It was put to Mr Sanna at T 156 that if Aletist was visible from about 100 metres back from the fence the defendant went through "a red light" by continuing to advance towards the fence when the horse was visible some 100 metres away. However, this was on the basis of the defendant knowing about Aletist being in season (T 155 lines 44-49). If, as I have found, the defendant did not know that Aletist was in season, the mere fact that he saw a horse 100 metres away would mean nothing to him. It was not suggested in the evidence that from 100 metres it was possible to see a mare "winking". The evidence of the defendant was that as soon as Wrangler became excited the defendant endeavoured to get him under control and to turn him around and lead him away. 169The plaintiff has not made out this particular of negligence. (b) Allowing the plaintiff to ride her horse in the vicinity of Wrangler when it was not safe to do so. 170The particulars given by the plaintiff (Exhibit 3) state that the defendant allowed the plaintiff to ride her horse in the vicinity of Wrangler when it was not safe to do so in that there was a foreseeable risk Wrangler would get excited and out of control which in fact happened. 171This particular of negligence is therefore based upon the knowledge of the defendant that Aletist was in season, or could be in season, and that there was a foreseeable risk that Wrangler would become excited. 172Mr Sanna told the court that stallions were so potentially dangerous that they are required to wear green discs at shows and events so that persons could identify them (T 154 line 15) and that children are not allowed to ride stallions because of their dangerous propensities (T 148). However, this only relates to competitions, not to private riding activities, as Mr Sanna noted in his comments about the photograph of Ms Fenner's nephew seated on Wrangler (T 148-149). What Mr Sanna had to say about that was as follows: "Q. In a situation such as this, in a controlled environment, on a private property with a horse which is familiar with the operator being Mr Meyer there's nothing wrong with that is it under those circumstances? A. Doesn't look like it there looking at those photos." 173Mr Lawson, in his report (Exhibit 2), states that when working with a stallion the rider/handler is always looking for possible problems or conflicts that could arise. However, Mr Lawson said it would be unreasonable simply because Wrangler was a stallion that he should be closeted away and never permitted to interact with other horses. 174As I have found that the defendant did not know that Aletist was in season, and as there was no additional reason for the plaintiff not to ride her horse in the vicinity of Wrangler, this particular of negligence is not made out. (c) Allowing his horse Wrangler to be close to the horse Aletist when he knew that Aletist was in season. 175The particulars (Exhibit 3) state that the defendant knew that the horse Aletist was in season because the plaintiff told him before they commenced their ride. 176For the plaintiff to succeed on this particular, she must prove that the defendant knew that Aletist was in season and/or that he knew of Wrangler's prior history of becoming excited or agitated in the presence of other horses and in particular mares. 177I am satisfied that the defendant did not know that Aletist was in season, although the plaintiff did. In addition, I have found that there is no evidence of Wrangler having the prior history of becoming excited or agitated in the presence of other horses, especially mares. 178The defendant also draws to my attention that in the particulars for paragraph (c) there is no reference to the plaintiff informing the defendant in a telephone conversation the week before. This is a minor point, as I am satisfied that the plaintiff did not inform the defendant that Aletist was in season. 179It was the plaintiff, not the defendant, who placed the two mares in the paddock where she and the defendant took their weekly rides. The plaintiff, and not the defendant, had the responsibility for the care, control and management of the property and the horses on it. 180In addition, the defendant did not allow his horse to "be close" to Aletist at the first sign of trouble. He endeavoured to control his horse and to return the stable. 181As is set out elsewhere, there is no evidence that his decision to turn around and return to this stable was made too late, or in circumstances where he allowed the horse to become too close. This particular of negligence accordingly fails. 182The plaintiff has not made out evidence capable of supporting this particular. (d) Allowing the plaintiff and her horse to ride together with Wrangler when he knew or should have known that Wrangler was "fresh" and had been fed grain recently so that Wrangler was "pepped up". 183The particulars provided refer to a statement to this effect by the defendant to the plaintiff. It is based on the claim that Wrangler had not been having enough exercise, as well as to the claim that the horse was "pepped up" by reason of his grain-feeding regime. It is a particular of negligence capable of being relied upon whether the defendant knew Aletist was in season or not. 184Mr Sanna's evidence at T 143-144 concerning Wrangler's feeding regime was as follows: "Q. So in your comments about the manner in which - sorry, I withdraw that. In relation to the feeding regime of Wrangler, if I was to say to you that Wrangler for a period of one month before the incident was on 200 grams of what could be described as sweet feed which is molasses, lupins, sunflower, corn and soya, that wouldn't, 200 grams per day is not a large amount of corn so to speak, or sweet feed? A. 200 grams is not excessive. Q. It's not excessive? A. No. Q. It would not give rise to any heightened behaviour on behalf of the horse, the stallion? A. It depends on the horse and it depends on the work. If a horse has a propensity to get a bit excitable then the work-to-feed ratio is relevant. If you are asking me is 200 grams is an excessive amount of feed, no I don't think it's an excessive amount of feed." 185The defendant's evidence was that the horse Wrangler had been on a high protein diet for months. The defendant said at T 399-400: "Q. You had fed Wrangler grain in the lead up to this event, hadn't you? A. I fed Wrangler a high protein diet. Q. That was to get him more energy, wasn't it? A. To give him more energy and to build his muscle. Q. That would tend to make him more frisky, wouldn't it? A. I think the term you're looking for is "hot" Q. More hot? A. It can do with some horses. Q. That would make him harder to control, would it not, when you were riding him? A. For a period of time, maybe. Q. Particularly if he hadn't been ridden that much? A. True. Q. You hadn't ridden him that much, had you? A. I hadn't ridden him for a week. Q. Feeding somebody - a horse a high protein diet and not having exercised him for a week may suggest that there may be some difficulties with him becoming "hot" and having more energy due to the high protein diet, that's right, isn't it? A. He's been on a high protein diet for months. HER HONOUR Q. How many months? A. Since before the national finals, so it would have been around February. Q. That would be most of the time he was there, wouldn't it? A. That's correct. JONES Q. And most of that time he hadn't been ridden regularly? A. No, that's not correct. Q. He'd been ridden at the most, generally, once a week? A. That's - that's - with regard to frequency; I would ride for hours at a time." 186Mr Sanna said (T 144) that questions of management of the horse by an experienced person such as the defendant would largely be a matter for that person to make informed decisions about. The expert evidence does not go so far as to say Wrangler was "fresh" or "pepped up" by reason of diet or lack of exercise. 187The defendant said that he rode Wrangler at every opportunity. There was no evidence that Wrangler needed exercise or was restive due to lack of exercise. 188This particular of negligence is not made out. (e) Instructing the plaintiff "don't let him get past" after Wrangler had thrown him to the ground when it was not safe for the plaintiff to get near to Wrangler. 189According to the answers to particulars, the plaintiff relies upon the statement by the defendant that he should "don't let him get past" meaning Wrangler, which had just thrown the defendant to the ground, when it was not safe for the plaintiff to go near to Wrangler. This particular of negligence is independent of whether or not the defendant knew Aletist was in season and relates to his response to the danger. 190The plaintiff's evidence on this was as follows: "Q. So the horse dips near the second little tree and Mr Meyer is thrown off, all right? A. That's right. Q. You are about ten or fifteen metres back? A. That's right. Q. You are witnessing all this, did Mr Meyer get up? A. He began to get up and as he started to get up he shouted to me, "Don't let him get past". Q. And what was Wrangler doing at this stage? A. Wrangler, I'm not sure the horse eventually spun around because he realised I guess that Alan wasn't on him any more and the horse spun around and was charging back. Q. When you say back, back towards what direction? A. Back towards the two mares at the top of the track. Q. Back towards Aletist and Butterfly? A. That's right. Q. Back towards that gate? A. That's correct. Q. The gate was still in position was it, it hadn't been moved? A. Not to my knowledge, no. Q. So it is charging back, Mr Meyer yells out to you, "Don't let him pass"? A. Right and he did that as he was starting, I saw Alan start to get up after he hit the ground and while he was still getting up, he shouted that out to me and at the same time the horse was doing its thing and had spun around and was starting to go back up. Q. So be coming back towards your direction? A. That's correct. Q. What happens next? A. I had stopped on Freckles and I was standing on the hay shed side of that white tree. ... Q. Now can I just stop you there and say, you have been told you told the Court previously that Mr Meyer had told you not to have anything to do with Wrangler? A. That's correct. Q. How confident did you feel being around Wrangler at this time when he had thrown off Mr Meyer, he had told you to not let him pass and the horse is coming back towards you, how confident did you feel? A. I wasn't confident at all. Q. Right? A. I was very concerned at the antics of the horse leading up to that point in time and also the antics that had led to Alan who I - he was an experienced, or is an experienced horse person and he had just been thrown off the horse in that circumstance, so I was very worried. ... Q. You told the Court you asked Freckles to move, did Freckles move? A. He did. Q. Where did he move? A. He took one step forward with his right front foot. Q. And which direction? A. towards the gate area. Q. Is that towards the centre of the track? A. Yes it is. Q. Now why did you take that manoeuvre, why did you do that manoeuvre? A. Because Alan had told me to. Q. If you hadn't had been given that manoeuvre, in other words if you hadn't been told not to let Wrangler pass would you have taken that manoeuvre with your horse? A. Absolutely not." (T 45-47) 191The plaintiff described the next event as follows: "Q. What happened? A. After Wrangler had spun around he had then started charging and obviously he was coming in my general direction. As he got a bit closer towards me he snaked his head around, sorry, I can still picture it as clear as day, he moved his head around to the horse's right hand side which meant that he was lining me up directly and he tilted his head a little bit and obviously he was close to me and I could see the look on his eye and the only way I can describe it is pure fury. Q. Is this the look on Wrangler's eye? A. That's right. And at that point I knew exactly what was going to happen and there was absolutely nothing I could do about it. Q. What happened? A. The horse then kept coming at the same speed and took hold of my leg, left leg above the knee. Q. How did he take hold of it? A. He bit it, opened his mouth and latched on like a vice, was how it felt it was the most excruciating pain I have ever felt. Kind of happened pretty fast at that point but his momentum to where he was going took me-- Q. It was towards Aletist-- A. And Butterfly, it took me and my horse in the same direction. Q. Was he still holding onto your leg? A. Yes he was. Q. Left leg with his mouth? A. Absolutely. Q. Did you feel any pain at that stage? A. It was the most excruciating pain I had ever felt, and I began screaming probably at the top of my lungs, I remember thinking, it was a very loud scream, but it just an instinctive response. Q. Were you still in the saddle at this stage? A. Yes I was and I still had my - I hadn't changed my position in the saddle." (T 48-49) 192It is clear from this description that the plaintiff's horse would have at best taken only a step in the path of Wrangler. The plaintiff in cross-examination said at T 228-229: "Q. You didn't actually move Freckles at all did you, you only squeezed him? A. I squeezed Freckles and he took one step forward with his right front foot and that was it. Q. Didn't move physically across the pathway in any way. Just put a foot forward. Is that it? A. Well I must admit I wasn't looking to see if that step forward had actually meant his body had gone forward but he certainly only took one step forward with one foot. Q. So you are not sure whether you actually moved forward at all are you? A. No. Q. You could have quite easily just remained stationary without actually physically moving your body? A. Sorry can you please say that again? Q. You could have quite easily just remained stationary yourself, in other words not, just yourself personally? A. I think it would be unusual but perhaps it's possible. I can only tell you that he took that step forward and that I imagine there would have been some shoulder and body movement of the horse-- ... Q. So therefore you're in that position or Freckles was in that position as a result of and before Mr - sorry, I withdraw that. You were in that position across the pathway before Mr Meyer said anything to you weren't you? OBJECTION. Q. When Freckles was in the position across the pathway, that was before Mr Meyer called out wasn't it? You didn't manoeuvre-- A. Yes. Q. Yes it was before that? A. That's correct." 193Looking at the photographs which have been tendered and having regard to the evidence about the width of the pathway, it appears that it was possible for Wrangler to have passed the plaintiff whatever action she took. It is also most likely that the plaintiff had so little time to move that if Wrangler had decided to attack her, there was little she could do. However, far apart the horses were, it was not a distance that would represent any difficulty to a stallion to cover in a matter of seconds. 194The manoeuvre which the plaintiff asserts was dangerous was not considered to be dangerous by the expert Mr Sanna, depending upon how quickly the horse could be controlled. He said at T 140-141, concerning the desirability of either the plaintiff or the defendant trying to grab the horse Wrangler: "Q. Having been bucked off the horse, the stallion, the behaviour of the stallion or the manner in which Wrangler behaved - in other words, went directly back to the mares in question was predictable, is that right? A. Yes, I would - that's what you would expect him to do, yes. Q. And if there was a moment when the stallion was standing stationary after you'd been bucked, would you try to restrain or grab onto the stallion? A. If you can get to your feet quick enough assuming he'd bucked you off and you're on the ground. If you can jump up and grab him that would definitely be a smart thing to do yes. Q. And if there was another person, experienced rider with 31 years experience, riding with you, would you expect that that person may assist in some way in holding the stallion? A. I think if you're on another horse that's probably a slightly different proposition because there is a chance that the, it depends on how those two horses interact, that there is a chance that the stallion would behave aggressively towards another horse. Most horses, if they face up to a - most stallions if they face up to another horse and they're physically very close and they can sniff at them, they're very likely to scream and paw and maybe strike or rear at the other horse, so it would be a considerably more dangerous procedure to try and do it off another horse. Q. If the other horse was, which is Freckles in this situation, a gelding which had been riding and familiar with riding with Wrangler basis probably once every fortnight over the period of ten months prior, would you consider that an experience rider, someone with 31 years experience and with experience of riding Freckles, would be appropriate to maybe try to hold onto-- A. If the horses have a history of interacting well, stallions normally can differentiate a mare from a gelding and they're much comfortable, they're much less likely to get excitable about a gelding being near them, then I don't disagree with what you are saying. Provided it is not on the move, you know, if it's stationary and you can get a hold of it for a moment, then the rider can jump up and grab it, then I think it's probably quite appropriate. If the thing's already on the move and got, it's sort of got a clear direction and he's sort of on the run, then I think it would be, it would be dangerous to try and attempt that manoeuvre. Q. But in that momentary situation whereby you've been thrown from this stallion, the horse is standing there and there's that other person with the experience I outlined, on a horse such as Freckles, before the horse started to move, in other words before the stallion started to move, it was a reasonable reaction to attempt to restrain the stallion? A. Yes I wouldn't disagree with that. Q. You would not disagree? A. No. Q. And for you to say something like "hold him" or something like that, to that person who's on that gelding such as Freckles, in that split second when he's stationary, would be a reasonable thing in your view? A. If they were close. If they, you know, I think if they were right here then yes I think that would be a reasonable thing to do. As I say, if there was any distance and they have to gallop up to the horse or if the horse had turned around started to gallop, then to try and grab a hold of it then would be, would be a very different proposition I think." 195The events in question occurred within seconds. The defendant denies that he said "don't let him get past", and says he said "hold him", but they amount to much the same thing. The difficulty is that, whatever the plaintiff did, she did not have time to react, and her horse in fact barely moved. Wrangler was already on the way, as the expert evidence makes clear. 196Mr Sanna in his report of 6 December 2010 comments that the events which led to the plaintiff's injuries were "really a random series of actions resulting from the defendant losing control of his horse, as he was trying to extricate himself and the horse from a situation he had come to realise was very dangerous. Unfortunately the horse had become over excited at being confronted (albeit on the other side of a very flimsy wire fence) by a couple of mares, one of which at least was posturing towards him. The defendant's fall from the horse, the resulting attack on the plaintiff by the now loose and excited stallion were all foreseeable if unfortunate consequences of the initial poor decision to take the stallion into that situation." (report 6 December 2010, Exhibit H) 197Mr Sanna concludes that whether the plaintiff responded to an instruction to block the stallion or was "merely in the path between the loose stallion and the mares in the paddock" was probably irrelevant (report 29 June 2011, Exhibit H). 198In practical terms, the defendant's instruction to the plaintiff made no difference. She had no time to move out of the way and there was nothing that the defendant could do or say to help her. The accident was about to happen by reason of the fact that the plaintiff and defendant had ridden towards the paddock into which the plaintiff had put a mare in season. 199Mr Chant expressed some opinions about the defendant's course of action, in his cross-examination by counsel for the plaintiff. He is a lay person who was not present at the time. He agreed that it was the direction that he would have been unlikely to give (T 480) but he said that if the horse was closer than 15 metres away it would be an acceptable direction to give (T 484), particularly if the person to whom the direction was given was familiar with the horse (T 485). This evidence does not take the matter much further. 200Regardless of my findings as to whether or not the defendant knew that Aletist was in season, the defendant's conduct in saying either "don't let him get pass" or "hold him" was not negligent. If I have erred in this finding, there is a causation problem. As Mr Sanna points out, the circumstances leading to the plaintiff's injuries were a random series of actions and furthermore the plaintiff had no time to act upon any negligent instructions by the defendant. The horse was charging towards her and her own horse had only been able to take one step. The accident was going to happen regardless of what the plaintiff and defendant did. Accordingly, this particular has not been made out. (f) Failing to direct the plaintiff to immediately leave the area after Wrangler started to become excited. 201These amount to particulars that the defendant failed to take reasonable care for the safety for the plaintiff by telling her to go somewhere safe as soon as Wrangler became excited. 202As is set out above, the evidence of Mr Sanna was that it was not unreasonable for the defendant to endeavour to control his horse and to commence riding back to the stables and to terminate the ride. He did so in the company of the plaintiff and was effectively directing her to leave the area. The key difference seems to be the word "immediately", in that it appears to be submitted that he should have directed the plaintiff to gallop away while he remained behind to get control of his horse. 203The evidence of both the plaintiff and defendant was that the defendant was initially able to get Wrangler under control and start to lead him back to the stable. In addition, the evidence is that as soon as Wrangler began to misbehave, the defendant did in fact turn the horse around. 204The defendant's evidence was that he gave her the opportunity to continue riding without him, to allow him to return to the stable area with Wrangler, and that she declined. There is no evidence that there was sufficient time for the horses to travel in different directions in any event. 205The plaintiff has not made out evidence to support this particular. (g) Failing to direct the plaintiff to immediately leave the area after Wrangler had thrown the defendant to the ground. 206Once the defendant had been thrown to the ground, it was a matter of seconds before the plaintiff was attacked by Wrangler. The plaintiff's horse took one step forward, on her evidence, and she was then attacked by Wrangler. 207For the reasons set out in relation to particular (f) above, the plaintiff has not made out evidence to support this particular. I also note reliance of the defendant in relation to s 5H of the Civil Liability Act 2002 (NSW) in relation to any duty to warn of obvious risk. (h) Failing to take reasonable care for the safety of the plaintiff. 208The defendant refers me to the request for further and better particulars, where the plaintiff asserts that the failure to take reasonable care for the safety of the plaintiff is "not directing her to go to a safe area", the same as the particulars for paragraphs (f) and (g). The defendant submits that this does not take the plaintiff's case any further. 209There are a number of matters which could be relied to by the plaintiff which are not contained in the particulars. These include the submission that the defendant was putting his horse's welfare ahead of the welfare of the plaintiff (plaintiff's written submissions, paragraph 133), the circumstances in which he left the plaintiff lying on the ground in circumstances where she had to drag herself under a fence (written submissions, paragraph 135) and losing control of Wrangler (written submissions, paragraph 107-109). 210All of the evidence points to both the plaintiff and defendant endeavouring to get away from the paddock where Aletist was. Even if the defendant had known that Aletist was in season, the speed with which Wrangler reacted and, as a powerful stallion, escaped the control of the defendant by throwing him and charging towards the plaintiff, was such that the accident was, as both experts point out, inevitable. There is no evidence, expert or otherwise, to support the contention that the defendant could have directed the plaintiff to go to a safe area. The provisions of s 5H are also of relevance; as soon as Wrangler became excited, the plaintiff, an experienced horsewoman, should have known of the danger and not require warning by the defendant. In relation to leaving the plaintiff on the ground, the defendant had no alternative as he had to call an ambulance. 211Further, the parties should be held to the case that they plead and particularise, and if the case as particularised in relation to particular (h) is "not directing her to go to a safe area" it is not appropriate for me to speculate as to what other material may be derived from the evidence in support of this particular. I note that the plaintiff's written submissions do not identify specific matters going to this particular of negligence. (i) Approaching, or continuing to approach, Aletist, knowing that Wrangler had previously become excited/agitated in the presence of other horses and in particular mares. 212The evidence relied upon according to the particulars provided by the plaintiff are the three prior incidents in 2006 - 2007 where Wrangler is asserted to have behaved in a manner indicating he became excited or agitated in the presence of other horses. As set out at [107] - [112], I have not accepted this evidence. 213There is no evidence that the plaintiff and defendant continued to approach Aletist after Wrangler began to become excited or agitated. The evidence is that as soon as this occurred, the defendant attempted to get him under control and to turn him around. 214As I have rejected the evidence of the prior three occasions in relation to Wrangler, and I am satisfied that the plaintiff and defendant did not continue to approach Aletist after Wrangler began to become excited or agitated, the plaintiff has failed to make out evidence to support this particular. 215The plaintiff has failed in relation to the findings of fact that I have made in relation to each of the particulars of negligence (a) - (i). However, in relation to each of the particulars of negligence, the defendant additionally relies upon defences under the Civil Liability Act 2002 (NSW). Both the issue of liability for harm from obvious risks of dangerous recreational activities (s 5L) and voluntary assumption of risk (ss 5F and 5G) may apply to certain of the particulars whether or not the plaintiff and defendant had the conversations deposed to by the plaintiff about Aletist being in season. The relationship between the plaintiff and defendant is, I have found, a relationship of persons who were living in some form of de facto relationship, not teacher/pupil, or occupier/licensee. They were both horse lovers and, while the defendant was more experienced than the plaintiff, the plaintiff still had considerable knowledge. In particular, both plaintiff and defendant were engaging in a recreational activity, horse riding, which was dangerous, and the question of whether or not both knew of the danger is relevant to the defence of volenti. It is to a consideration of these defences that I now turn. Liability for harm from obvious risks of dangerous recreational activities 216Section 5L Civil Liability Act 2002 (NSW) provides: "5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person ("the defendant") is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk." 217Section 5F defines "obvious risk" as follows: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable." 218Section 5G provides as follows: "5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." 219As noted in my discussion of the defence of volenti, neither of ss 5F and 5G are referred to in the defence. In written submissions (at paragraph 203) and oral submissions, counsel for the plaintiff submits that as s 5G is not pleaded against the plaintiff, this means that this defence must fail, on the basis that the Civil Liability Act 2002 (NSW) covers the field and the failure to plead s 5G is fatal. I have dealt with this issue in more detail below. 220The question of what amounts to "obvious risk" is explained in Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at [36]-[37] as follows: "[36] The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings. [37] The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration." 221The defendant also draws my attention to an early statement by the New South Wales Court of Appeal in Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754 at [161] as follows: "[161] At this point it is appropriate to comment that, according to my research, none of the Australian cases attempt to define what is meant, at least generally, by an obvious risk. This is not to say that the authorities referred to above are inconsistent in approaching the question of whether a risk is, in fact, obvious in a given circumstance. However, I see no reason not to adopt the definition found in the commentary to §343A of the Restatement (Second) of Torts (1965) (Rest 2d Torts §343A). This definition is consistent with the Australian authorities discussed above which have emphasised the importance of an individual taking care for his or her own safety. In the commentary, "obvious" is defined as follows: 'Obvious' means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment." 222In Carey v Lake Macquarie City Council [2007] NSWCA 4 McClellan CJ at CL explained the interaction of ss 5F and 5G in relation to the meaning of obvious risk and the circumstances in which a person was presumed to be aware as follows: "[90] The effect of these provisions is that a plaintiff is rebuttably presumed to be aware of a risk where the risk would have been obvious to a reasonable person in the position of the plaintiff. A plaintiff cannot rebut the presumption by claiming that even though he or she was aware of the general risk of harm, he or she was not aware of all its possible manifestations, including the one that eventuated." Voluntary assumption of risk 223At paragraph 38 of the defence, a defence of volenti non fit injuria is pleaded in terms of a defence at common law only: "The defendant relies upon the defence of volenti non fit injuria for the reasons outlined at paragraphs 13 to 33 above, as a total defence to the plaintiff's claim." 224The interaction between the common law defence of voluntary assumption of risk and ss 5F and 5G was explained by McClellan CJ at CL in Carey v Lake Macquarie City Council were cited with approval in Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 at [83] as follows: "[83] A finding that a risk of harm is an "obvious risk" within the meaning of s 5F(1) so that pursuant to s 5G(1) the person who suffers harm is presumed to be aware of that risk, does not, as the Council would have it, automatically lead to a finding of no breach of duty. Sections 5F and 5G are contained in Div 4 of Pt 1A of the CL Act entitled "Assumption of risk". The purpose of that Division is, at least in part, to make it easier for a defendant to establish the common law defence of voluntary assumption of risk or volenti: C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [101] per Santow JA; Carey at [34]. Except with respect to an "obvious risk" which obviates any common law duty to warn (see s 5H), the provisions of ss 5F and 5G and, in particular, the statutory definition of an "obvious risk", have no relevance to the question of breach of duty." 225The same issues relevant to "obvious risk" relating to a dangerous recreational activity for the purpose of s 5L also apply to the defences at common law of voluntary assumption of risk, as glossed by ss 5F and 5G. 226Further assistance in the relationship between the common law defence, which was always a difficult defence to prove, and the provisions of ss 5F and 5G, has been provided by McClellan CJ at CL in Carey v Lake Macquarie City Council at [86]: "[86] Until the recent statutory amendments provided by the Civil Liability Act 2002 (NSW) a defendant faced a difficult task to prove volenti. Although a plaintiff may be aware of a risk that they might be injured, unless the defendant could prove that they appreciated the risk that they might be injured in a particular manner or to a particular extent the defence would fail. As Lord Halsbury LC said in Smith v Charles Baker & Sons [1891] AC 325 at 336, "a person who relies on the maxim must shew a consent to the particular thing done." Indeed, the defence has been so stringently applied that Campbell J noted in Tingle v J B Hinz & Sons [1970] Qd R 108 at 113 that: Glanville Williams in Joint Torts and Contributory Negligence at p 307 says that in almost every negligence action of modern times where the defence has been raised it has failed. Fleming in his work on Torts (3rd ed) at p 259, predicts that the defence will disappear eventually into the limbo of forgotten things." 227The plaintiff challenged first the entitlement to plead the defence at all, and then the entitlement to rely upon ss 5F and 5G. The defendant submits that if the defence were to fail in the form it is pleaded, namely at common law, then it is with the assistance of the Civil Liability Act 2002 (NSW) that the defence of volenti must be construed, referring to McClellan CJ at CL's comments at [87] and [88] of Carey v Lake Macquarie City Council: "[87] Division 4 of Pt 1A of the Civil Liability Act 2002 (NSW) - particularly ss 5F and 5G - was designed to address this issue. The second reading speech to the Civil Liability Amendment (Personal Responsibility) Bill refers to the Ipp Report, which at p 129 indicates that the intention of Div 4 was "to encourage greater use by the courts of the defence of assumption of risk." It was noted in the Report that: The more narrowly a risk is defined, the less likely it is that a person will have been aware of it. For instance, a person may be aware of the risk of suffering bodily injury as a result of engaging in a particular activity. But the person may not be aware of the risk of suffering bodily injury in a particular way. [88] Accordingly, the Report recommended the enactment of the following provisions: · A provision to the effect that for the purposes of the defence of assumption of risk, it would be presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person could prove, on the balance of probabilities, that he or she was not aware of the risk (para 8.30); · A provision to the effect that for the purposes of the defence of assumption of risk, the test of whether a person was aware of a risk is whether he or she was aware of a risk of the type or kind of risk and not of its precise nature, extent or manner of occurrence (para 8.31)." 228The defendant submits (written submissions, paragraph 341) that if the defence fails at common law then ss 5F and 5G would overcome the difficulties of the common law defence. 229What are the consequences of the defendant's failure to refer to ss 5F to 5I, and in particular to fail to plead s 5G? 230In fact, ss 5H and 5I are pleaded (paragraphs 39 to 41 of the defence) as follows: "39. The Defendant relies upon Part 1A, Division 4, Section 5H of the Civil Liability Act (2002):- a) The Defendant relies upon the facts and particulars pleaded in paragraphs 13 to 33 above. b) The Plaintiff riding in the manner so described was an "obvious risk" to the Plaintiff in that, in the circumstances, it would have been obvious to a reasonable person in the position of the Plaintiff that there was risk of "Wrangler" acting in the manner so described. c) The Plaintiff riding in the manner so described was a risk that was patent or a matter of common knowledge. d) In the circumstances as outlined in paragraphs 13 to 31 above the Plaintiff was aware of the risk of "Wrangler" acting in the manner so described, or in a manner which would give rise to a risk of the type or kind of risk which occurred. e) Under the above circumstances, pursuant to Section 5H of the Civil Liability Act, the Defendant did not owe a duty of care to the Plaintiff to warn of the risk to the plaintiff. 40. The Defendant relies upon Part 1A, Division 4, Section 5I of the Civil Liability Act (2002):- a) The Defendant relies upon the facts and particulars pleaded in paragraphs 13 to 33 above. b) In the circumstances as outlined above the risk of "Wrangler" acting in the manner so described, or in a manner which would give rise to a risk of the type or kind of risk which occurred, was an "inherent risk" in that it was something occurring that could not have been avoided by the exercise of reasonable care and skill. c) Under the above circumstances, pursuant to Section 5I of the Civil Liability Act, the Defendant is not liable in negligence for the harm suffered by the Plaintiff as a result of the materialisation of an inherent risk. 41. The Defendant relies upon Part 1A, Division 4, Section 5I [sic] of the Civil Liability Act (2002):- a) The Defendant relies upon the facts and particulars pleaded in paragraphs 13 to 33 above. b) In the circumstances as outlined above the harm occasioned by the Plaintiff resulted from a recreational activity engaged in by the plaintiff. c) In the circumstances as outlined above, the activity engaged in by the Plaintiff of horse riding was a recreational activity in that it was a sport, and / or in the alternative a pursuit or activity engaged in for enjoyment, relaxation or leisure, and / or in the alternative an activity engaged in at a place where people ordinarily engage in sport, and / or in the alternative a pursuit or activity for enjoyment, relaxation or leisure. d) In the circumstances as outlined above, the activity engaged in by the Plaintiff of horse riding was a "dangerous recreational activity" in that it was a recreational activity that involved a significant risk of physical harm. e) The Plaintiff riding in the manner so described was an "obvious risk" to the Plaintiff in that, in the circumstances, it would have been obvious to a reasonable person in the position of the Plaintiff that there was risk of "Wrangler" acting in the manner so described. f) The Plaintiff riding in the manner so described was a risk that was patent or a matter of common knowledge. g) In the circumstances as outlined in paragraphs 13 to 31 above the Plaintiff was aware of the risk of "Wrangler" acting in the manner so described, or in a manner which would give rise to a risk of the type or kind of risk which occurred. h) Under the above circumstances, pursuant to Section 5L of the Civil Liability Act, the Defendant is not liable in negligence for the harm suffered by the Plaintiff as a result of the materialisation of the obvious risk of a dangerous recreational activity engaged in by the Plaintiff." 231For the plaintiff's argument to succeed, one or both of the following arguments must succeed: (a)No plea of volenti is possible because the common law defence has been "superseded" by ss 5F to 5I, which "cover the field". This was put to me in the course of oral submissions, but in further written submissions of the plaintiff (4 April 2012) the plaintiff appears to have retreated from this position. However, any submission that the Act "covers the field", particularly in relation to the defence of volenti, is misconceived. As Judd J in Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 explains at [129], the tortious defence of volenti has been modified by the Civil Liability Act, not replaced. The interaction between the Civil Liability Act and the common law is helpfully explained by Joachim Dietrich, "Papers from the Tort Law Academic Workshop: Teaching torts in the age of statutes and globalisation" (2010) 18 TLJ 141 as follows: "Some parts of the Civil Liability Acts codify and change aspects of the common law of negligence. That is the case with the sections that state the general principles applicable to determining breach of duty (eg, Civil Liability Act 2002 (NSW) s 5B). In effect, these sections 'tinker' with the common law test for breach of duty. They restate the threshold test of breach, as well as the calculus of negligence factors to be considered in determining whether, ultimately, there is a breach, in slightly different terms to those of the common law principle contained in Wyong Shire Council v Shirt... Since the Civil Liability Acts displace the common law in some of its field of operation, but do not cover the field, one particular challenge may be to determine where precisely only the common law principles apply, where only the statutory provisions apply, and where both still potentially apply, as well as where other, specific legislation applies. Some parts of the Civil Liability Acts may merely provide a gloss or modification of common law principles that have ongoing application and relevance. Hence, s 5G of the Civil Liability Act 2002 (NSW) makes it easier to establish one element of the defence of voluntary assumption of risk, which continues to operate as a common law-based defence". (b)The obligation of the defendant to plead s 5G has not been complied with and he should not be permitted to rely upon a statutory defence which has not been pleaded. In other words, the defendant can rely upon a volenti defence, but only at common law, and not upon the statutory provisions which modify it, because s 5G is not referred to in the defence. This submission has been further developed by the plaintiff in the written submissions provided in accordance with orders made on 3 April 2012. Mr Jones draws my attention to the well known statement in Dare v Pulham (1982) 148 CLR 658 at [6]. That decision is, however, generally relied upon as supporting the entitlement to late amendment, rather than preventing it. The obligations of parties to plead their case in accordance with the provisions of the Civil Liability Act 2002 (NSW) and the Civil Procedure Act 2005 (NSW) was considered by Santow JA in CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [101]-[102] said: "[101] The statutory consequences in ss 5G and 5H, where an obvious risk is found, operate in aid of the general law in two respects: (a) in assisting the common law defence of voluntary assumption of risk, by introducing a rebuttable presumption of awareness of the relevant risk ("volenti"), and (b) in obviating any common law duty of care to warn of an obvious risk to the plaintiff (with limited exceptions not relevant here). [102] Thus there can be no need to warn of a risk one is presumed to know (s 5G) nor any proactive duty to warn of an obvious risk (s 5H). But liability for negligence is not coterminous with situations calling for warning. A warning may be insufficient to discharge the duty of care or may even be irrelevant to its discharge, depending on the circumstances." The plaintiff submits that the defendant cannot rely upon s 5G as he has not specifically pleaded this in his defence, and otherwise relies upon submissions already made in relation to the defence of volenti. In other words, what the plaintiff submits is that by reason of not having pleaded s 5G specifically in the pleading, the defendant is entitled to rely upon the defence of volenti as pleaded, but is restricted to the common law defence, and is not entitled to take advantage of the liberalising of the volenti test set out in s 5G.There is no doubt that the defendant has pleaded a defence of volenti, and the failure to specifically refer to s 5G is an oversight.In Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34, a s 43A Civil Liability Act 2002 (NSW) defence was not pleaded at all at the trial, and was raised only on appeal. Beazley JA said at [23] that any statutory provision providing a complete, even if defeasible, defence to a claim, if not pleaded, would take a party by surprise, and that any such defence is required to be pleaded: r 14.14(2)(a) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). This is because the defence, if successful, would render the plaintiff's claim not maintainable (r 14.14(2)(b)). The s 43A defence therefore failed to comply with the pleading rules. However, Beazley JA went on to note at [24]: "[24] A failure to comply with the rules of court, including the pleading rules, is not necessarily fatal to a party's right to rely upon the unpleaded matter. The court has power to dispense with its rules: see the Civil Procedure Act 2005, s 14. It has also been long accepted that a party may litigate an issue notwithstanding a failure to comply with a pleading rule. However, the entitlement of a party to do so is dependent upon a favourable exercise of the court's discretion if objection is taken by the opposing party. The exercise of the discretion is predicated upon fairness to the parties." In Bellingen Shire Council v Colavon Pty Ltd, the total failure to plead or particularise the defence led to prejudice. In the present case, no prejudice is identified; the defence is pleaded, but has not been pleaded with reference to the provisions of the Civil Liability Act 2002 (NSW). Similarly, in Vertzayias v King [2011] NSWCA 215, an application to reopen the judgment to plead a defence failed; the Court of Appeal dismissed an appeal from the trial judge's refusal to reopen the proceedings.Both these decisions relate to defences raised after the trial was over. In Sydney South West Area Health Service v MD (2009) 260 ALR 702, a defendant sought leave to amend its defence during the trial to include reference to s 5O Civil Liability Act 2002 (NSW), which provides the standard of care for professionals. The trial judge refused, holding that s 5O had to be specifically pleaded, by reason of r 14.14 UCPR. Hodgson JA (Allsop P and Sackville AJA concurring) held that s 5O of the defence provides a defence not available at common law with the onus of proof lying on the defendant such that r 14.14 UCPR required that the material facts contemplated by s 5O should be pleaded and, although not mandatory, specific reference to s 5O is desirable (at [19]-[25], [50]-[51] and [58]). The trial judge had erred in refusing the appellants leave to amend to specifically plead s 5O in circumstances where objection to the failure to plead was not raised until very near the end of the case which amounted to trial by ambush (at [26]-[31], [53]-[56] and [58]).Allsop P at [51] considered that s 5O Civil Liability Act did not need to be pleaded, in that it was not just a matter of evidence, but a transfer of the onus of proof. That is not the case here. Something more is involved, in that these are sections which assist the defendant to discharge its burden of proof. I am satisfied that in pleading a defence of volenti, it is appropriate that a party should identify the facts and matters relied upon for a s 5G defence but that an application for leave to amend to plead s 5G, in circumstances where it reflects the way that the case was fought at trial, as well as being the basis of the submissions in relation to the volenti defence, would have to be granted. Accordingly, I propose to allow the defendant to put his case on volenti in relation to the provisions of s 5G. In the event that I have erred, I have considered the defence both at common law and pursuant to ss 5F and 5G. 232I shall first consider whether the defence would have succeeded at common law. 233In Dr Bodel's report he notes that the plaintiff expressed concern to him about going on these horse rides, as she knew that Aletist was in season; she told him that "this may be a potentially hazardous undertaking". The plaintiff was aware that horse riding could be hazardous. She had suffered injuries in the past from falls from a horse, as had the defendant. 234Counsel for the plaintiff in written submissions puts to me that, at common law, the defendant can only succeed if there is a finding that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk, agreed to incur it (Ranieri v Ranieri (1973) 7 SASR 418; Osborne v London and North-Western Railway Company (1888) 21 QBD 220; Insurance Commissioner v Joyce (1948) 77 CLR 39). The plaintiff submits that there is "simply no evidence" (written submissions, paragraph 206) capable of satisfying the court if I accept that the plaintiff had been assured by the defendant that despite the risk it would be "fine" (T 27) for them to ride into a paddock notwithstanding the fact that the defendant was riding a stallion and one of the mares was known by him to be in season. 235The test has been more recently considered by the New South Wales Court of Appeal. In Canterbury Municipal Council v Taylor [2002] NSWCA 24 Ipp AJA said at [145]-[147]: "[145] As Burt CJ said in Jeffries v Fisher (at 253): "Of course in many cases that appreciation and acceptance [of the risk] can readily be inferred from knowledge, but the point to be made is that knowledge alone is insufficient ..." [146] It does not follow merely from the fact that the respondent appreciated or should have appreciated the dangers of simultaneous dual use that he believed that the touch football players would carelessly walk into the cyclists' path. He may well have believed that the footballers were quite capable of acting without negligence and would play their game in safety. These issues were not properly investigated at the trial. What evidence there was on this issue tends to support a finding that the respondent did not expect that the risk would materialise. [147] A belief that the dangers (of which the respondent had full appreciation) would not materialise, would negative the proposition that he accepted those dangers: cf O'Shea v The Permanent Trustee Co of New South Wales Ltd (1971) Qld R1; Suncorp Insurance and Finance v Blakeney; State Government Insurance Co v Hitchcock (unreported, Full Court, Supreme Court of Western Australia, delivered 11 March 1997)." 236Counsel for the defendant points out that McClellan CJ at CL in Carey v Lake Macquarie City Council at [83]-[84] noted that this passage was open to misinterpretation: "[83] This passage is open to misinterpretation. In a recent article ("Personal responsibility and the 'new' volenti" (2005) 13 Tort L Rev 76), Associate Professor Lunney refers to Canterbury Municipal Council and says (at 86): In this case, Ipp AJA held that a belief by the plaintiff that the dangers would not materialise would negative the proposition that the dangers had been accepted. Taken literally, this would require the plaintiff to expect injury as a result of the conduct. It is difficult to imagine any plaintiff testifying that they expected to be injured as a result of his conduct. Rather, the question is whether the plaintiff accepted the risk of injury. [84] Lunney's conclusion is correct but his analysis of Canterbury Municipal Council may not be. There is a very real difference between the proposition (which Ipp AJA advanced) that a belief that a risk will not materialise will negative consent to the risk, and the proposition (which Lunney attributes to his Honour) that consent can only be inferred where the plaintiff believed that a risk would materialise. All that must be proved is that the plaintiff voluntarily accepted a chance that a perceived and fully appreciated risk would materialise. A genuine belief that the risk would not materialise will negative the defence, but a positive belief that the risk would materialise is not required to make the defence out." 237In other words, even if a plaintiff perceived and full appreciated the risk, the defence cannot be made out unless the plaintiff had "a genuine belief that the risk would not materialise" (at [82]). McClellan CJ at CL referred to the failure of a defence of volenti in Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361 where a passenger who got into a car with a driver that the plaintiff knew to be a drunk had not voluntarily assumed a risk because the plaintiff had thought, notwithstanding the driver being drunk, that he still "seemed alright". 238If I have erred in my finding as to the conversations on the day in question, the plaintiff was however sufficiently aware of the risk, according to her evidence, for her to query whether it was safe to ride into a paddock which contained a mare in season. She had a discussion of the briefest nature on the day of the accident. This was not a discussion of reliance; it was a casual remark that was made as they were heading out the stable door. The defendant was already on his horse and the plaintiff was in the process of finishing her saddling up. Accordingly, I am satisfied that the plaintiff and defendant, if I accept the plaintiff's description of the conversation, had a discussion about risk, and mutually agreed that they should still go riding. This is insufficient to establish the defence at common law. However, if the plaintiff and defendant had no such conversation, and they merely agreed to go for a horse ride, in circumstances where the plaintiff did not tell the defendant Aletist was in season, the plaintiff must be taken to have accepted the risk and the common law defence would succeed. This brings me to a consideration of the statutory defence. 239In relation to the statutory extension of the volenti defence, I note the statements by McClellan CJ at CL in Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874 at [86]-[88] as follows: "[86] Until the recent statutory amendments provided by the Civil Liability Act 2002 (NSW) a defendant faced a difficult task to prove volenti. Although a plaintiff may be aware of a risk that they might be injured, unless the defendant could prove that they appreciated the risk that they might be injured in a particular manner or to a particular extent the defence would fail. As Lord Halsbury LC said in Smith v Charles Baker & Sons [1891] AC 325 at 336, "a person who relies on the maxim must shew a consent to the particular thing done." Indeed, the defence has been so stringently applied that Campbell J noted in Tingle v J B Hinz & Sons [1970] Qd R 108 at 113 that: Glanville Williams in Joint Torts and Contributory Negligence at p 307 says that in almost every negligence action of modern times where the defence has been raised it has failed. Fleming in his work on Torts (3rd ed) at p 259, predicts that the defence will disappear eventually into the limbo of forgotten things. [87] Division 4 of Pt 1A of the Civil Liability Act 2002 (NSW) - particularly ss 5F and 5G - was designed to address this issue. The second reading speech to the Civil Liability Amendment (Personal Responsibility) Bill refers to the Ipp Report, which at p 129 indicates that the intention of Div 4 was "to encourage greater use by the courts of the defence of assumption of risk." It was noted in the Report that: The more narrowly a risk is defined, the less likely it is that a person will have been aware of it. For instance, a person may be aware of the risk of suffering bodily injury as a result of engaging in a particular activity. But the person may not be aware of the risk of suffering bodily injury in a particular way. [88] Accordingly, the Report recommended the enactment of the following provisions: A provision to the effect that for the purposes of the defence of assumption of risk, it would be presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person could prove, on the balance of probabilities, that he or she was not aware of the risk (para 8.30); A provision to the effect that for the purposes of the defence of assumption of risk, the test of whether a person was aware of a risk is whether he or she was aware of a risk of the type or kind of risk and not of its precise nature, extent or manner of occurrence (para 8.31)." 240Whether the plaintiff told the defendant Aletist was in season or not, she was an experienced horsewoman; she was sufficiently aware of the specific dangers to raise them with the defendant. She was aware of the type or kind of risk, even if she was not aware of its precise nature, extent or manner of occurrence. She knew that stallions were dangerous and that this particular stallion was "nippy". She had previously been thrown from a horse and suffered an injury. She knew that horses could be dangerous. She knew that horses suffered injuries and attacked each other in relation to being in season, as she had owned a stallion who had been injured in the course of attempting to mate with a mare. All of these matters make it clear that the plaintiff was well aware of the risks of horse riding and in particular of the risk of riding into a paddock containing a mare which she not only knew to be in season but which she had placed there herself without prior consultation with the defendant. 241I am satisfied, in relation to the statutory defence, that the elements necessary for the statutory defence to be made out have been established by the defendant. Alleged admissions by the defendant 242Section 69 of the Civil Liability Act 2002 (NSW) provides: "69 Effect of apology on liability (1) An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person: (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and (b) is not relevant to the determination of fault or liability in connection with that matter. (2) Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter." 243Evidence was given by both the plaintiff and her mother as to admissions from the defendant to the effect that it was all his fault. The defendant submits (written submissions, paragraphs 347-348) that the evidence given by the plaintiff's mother firstly does not constitute an expressed or implied admission of fault and secondly is inadmissible pursuant to s 69 and this evidence should be struck out. The statements made were as follows: "Q. Did he have a discussion with you about something which had occurred? A. Yes, he did. Q. Doing the best you can and trying to put it in the first person - in other words, I said, he said - what can you tell us was said during that conversation? A. Alan - he said, "Lorna's been injured, there's a compound fracture of her femur and the ambulance has come and helicopter is on its way". Q. Did you respond at all to that? A. I said, "Did she have a fall from her horse?" and he said, "No, it was my fault, my horse". I asked, "Has there been much blood?" and he said, "No, there's no bleeding". I asked that question twice because I was very concerned about bleeding out-- Q. This was after you heard about the compound fracture? A. Yes. Q. I asked, "Which hospital?" and he said, "Westmead" and I said, "I'll be leaving here in ten minutes and he replied that he had some things to do and he would get thee when he could." (T 314) 244All that the defendant was saying was that the plaintiff had not fallen from her horse but had fallen because it was "my fault, my horse". That is not an admission about liability, but a description of the accident. Accordingly, the evidence does not amount to an admission. 245A second matter which is relied upon as an admission (plaintiff's written submissions, paragraph 164) is that some time after the accident the stallion Wrangler was taken to the local abbatoir and shot. The plaintiff submits that this is significant, as, "[i]f indeed the stallion had no propensity for misconduct, as suggested by the Defendant, it would be unlikely that he would cause the animal to be destroyed for what he claims was but an aberration, particularly given the total costs of the stallion, including transporting from the US to the UK and UK to Australia." 246The explanation given by the defendant for having the horse destroyed was as followed: "I was in a relationship with Lorna and she couldn't bear to look at him. I made that decision and I stand by it." (T 443) 247He was asked why he had not simply arranged for the horse to be taken to another property and he said: "Because he was my horse and I was emotionally distraught and this is what Lorna - this is what I felt Lorna would feel best by so it's what I did. At the time he was the national champion though he was the only one at the Show at this particular - he had huge potential. I did this for the reasons I've stated." (T 444) 248In written submissions, Mr Jones says that the "suggestion" that the stallion was destroyed for these reasons makes no sense, as it would have been a simple matter to relocate the stallion on another property in order to be away from the plaintiff. 249I do not accept this submission. The plaintiff had been very seriously injured and the defendant was distraught. They were in a de facto relationship at the time. The destruction of Wrangler was, I find, for the reasons stated and not an admission by the defendant that the horse had a bad propensity, nor was it an admission by the defendant that he had given the advice which the plaintiff claims he gave her on the day of the accident prior to the plaintiff and defendant setting out on their ride. Conclusions concerning liability 250I have found in favour of the defendant on the issue of liability. 251In the event that I have erred in my findings in favour of the defendant, I set out my findings in relation to contributory negligence. Contributory negligence 252The particulars of contributory negligence set out in the defence are as follows: (a)The defendant relies upon the facts and particulars pleaded in paragraphs 13 to 31 above. (b)The plaintiff failed to inform the defendant that "Aletist" was in season. (c)The plaintiff failed to avoid riding her horse "Freckles" in the company of "Wrangler" in the direction of, or near, or in the vicinity of, "Aletist" which was in season. (d)The plaintiff failed to advise or warn the defendant not to ride "Wrangler" in the direction of, or near, or in the vicinity of, "Aletist". (e)The plaintiff failed to prevent or stop or avoid the defendant riding his horse "Wrangler", which was a stallion and "fresh", in the direction of, or near, or in the vicinity of, the plaintiff's horse named "Aletist" which was in season. (f)The plaintiff failed to take due care for her own safety. 253Sections 5R and 5S of the Civil Liability Act 2002 (NSW) provide as follows: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 254The plaintiff was wholly responsible for the decision to put the two mares in the arena paddock in which she and the defendant had been regularly riding for the past eight months. She was the owner of the property, she was responsible for the transfer of these mares, which were her property, and she formed the decision to put them in this paddock without consulting the defendant. 255The defendant was absent from the property and would have had no way of knowing that either of the horses was in season unless he was told by the plaintiff. Being told seven days beforehand that a horse was in season would not, as I have already found, have been enough to put him on notice, in relation to his Saturday ride with the plaintiff, that there was a horse in season in the paddock in which the parties regularly rode, if the plaintiff started saddling up for the ride without mentioning the matter. The question is whether or not the plaintiff reminded the defendant on the day of the accident that the paddock in which they usually took their rides was not available because she had put a horse in season into that paddock. 256I have indicated I do not accept the plaintiff's evidence that she did have such a conversation. If she did not tell the defendant (and I note again that this is a case of actual knowledge being pleaded, not constructive knowledge of the potential for danger) then this was negligence to the standard considered by the court to be appropriate for a finding of 100% contributory negligence as authorised by s 5S Civil Liability Act 2002 (NSW). This is negligence at the same standard as the conduct of the plaintiff in Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25 and in Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257 where Rothman J explained at [132]: "[132] The relative culpability of the State of New South Wales and Ms Adams, on the above analysis, would result in Ms Adams' contributory negligence being 100% of the damage caused. Section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 provides that contributory negligence does not defeat the claim for damage. However, ss 5R and 5S of the Civil Liability Act, require the Court to apply the same principles in determining contributory negligence, as are applied in determining the claim for negligence. In that respect, the standard of care in contributory negligence is that of a reasonable person in the position of that person. I take that to include the diminished responsibility of Ms Adams. Further s 5S of the Civil Liability Act reinstates the outcome that contributory negligence can be assessed at 100% of the damage. This is not a reinstatement of the historical position that contributory negligence was a complete defence. Historically, minimal contributory negligence would be a complete defence to an action in negligence. This simply clarifies that in assessing relative culpability and respective share in the responsibility, the Court is entitled to come to a view that the contributory negligence should be assessed at 100% of the cause of the injury." 257If I have erred in accepting the evidence of the defendant as to the conversation on the day in question, the plaintiff still failed to take due care for her own safety by creating the danger in the first place, in that she put two mares, one of whom she knew to be in season, in the paddock which she knew was used for weekly rides by herself and the defendant. Had she put these two mares into another paddock, the likelihood of the accident occurring would be non-existent. There was no reason for these horses to be in this particular paddock, and it would have been a straightforward matter for the plaintiff to put them in another paddock; the plaintiff said that she suggested to the defendant, on the morning in question, that these two horses could have been easily moved to another paddock. This is part of the evidence which suggests that there were other paddocks in which these horses, one of which was in season, could have been placed, and that this should have been done by the plaintiff. 258The defendant, who was living away from the property during the week, and who was not the owner of the property or of the horses in question, had no say in which paddock the horses were placed. While the precise date when the horses were returned to the property by the plaintiff is in doubt, it is not disputed that it occurred at a time when the defendant was not living on the property, and that he continued to remain away from the property until the day of the accident apart from the carrying out of the feeding. As I have indicated elsewhere, I do not accept the submissions of the plaintiff that the defendant would have occasion to observe that Aletist was in heat while carrying out the feeding. 259Essentially the plaintiff's argument is that the defendant failed to warn her of the consequences of her actions in placing a mare in season in a paddock when which it was her practice to ride with the defendant. 260In Mackenzie v The Nominal Defendant (2005) 43 MVR 315, the Court of Appeal set aside a finding of contributory negligence of 100% and substituted a finding of 80% where a passenger responsible for putting an inexperienced friend without a driver's licence and with no prior experience on a motorcycle as a rider. 261The correct approach of the court to a finding for contributory negligence was explained by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494 per Gibb CJ, Mason, Wilson, Brennan and Deane JJ as follows: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 262Taking into account the significance of the various elements involved in an examination of the plaintiff's conduct, I am satisfied that even if the plaintiff did tell the defendant on the day she transferred the horses to the top paddock and reminded him of this prior to going on the ride, her role in creating the risk was so significant that a percentage for contributory negligence comparable to Mackenzie v The Nominal Defendant, namely 80%, should be apportioned. Her statement that one of two horses had been in season up to seven days prior to the proposed ride was only one of the factors which led to the accident. The plaintiff's significant role in creating the risk needs to be given full weight when considering issues of contributory negligence. Quantum 263I also set out some short alternative findings in relation to the submissions on quantum of damages. 264It is not in dispute that the plaintiff suffered very serious injuries. The medical issues are substantially not in dispute. The plaintiff's damages schedule is as follows. Plaintiff's damages schedule 265The plaintiff's damages schedule is as follows: Plaintiff's Date of Birth: 21 June 1966 - Current Age 45 years Medium Life Expectancy: 43 years - 5% multiplier = 938.2 Date of Injury: 5 October 2009 Non-Economic Loss - 38% $197,500.00 Out of Pocket Expenses $37,606.29 Future Out of Pocket Expenses: (a) General Practitioner (once every 5.5 months @ $69 per consultation - AMA Rates - T 75 line 21) (12 ÷ 5.5 x 69 ÷ 52 x 938.2) $2,716.00 (b) Orthopaedic Surgeon (consultation once every 6 months @ $150 per consultation - AMA Rates ($150 ÷ 26 x 938.2) $5,413.00 (c) Radiology (Allow) $500.00 (d) Arthroscopy (3 years - Dr Ryan 21.04.11 p1.5) ($2,500 x 0.864) $2,160.00 (e) Debridement (5 years - Dr Ryan 21.04.11 p1.7) ($5,000 x 0.784) $3,920.00 (f) Total Knee Replacement (12.5 years - Dr Ryan 21.04.11 p2.1) ($22,500 x 0.544) $12,240.00 (g) Medication ($5 per week - T 72 line 49) ($5 x 938.2) $4,691.00 (h) Liniments & Heat Packs ($219 per annum - T 75 lines 30-45) ($219 ÷ 52 x 938.2) $3,951.00 (i) Physiotherapy ($50 per fortnight - T 75 lines 27-50) ($50 x 0.5 x 938.2) $23,455.00 (j) Hydrotherapy ($15 per 2 months - T 75 line 9) ($15 x 6 ÷ 52 x 938.2) $1,624.00 $60,670.00 Griffiths v Kerkemeyer: (a) Past:(i) 23.10.09-31.12.09Greater than 40 hours per week - Maximum rate - $940 per week (T 58 line 20 - T 63 line 20, T 315 line 10 - T 317 line 33, M Ellis 7.10.11 p2)(ii) 01.01.10-24.05.1020 hrs per week @ $24.75 per hr (M Ellis 7.10.11 p2)(iii) 29.05.10-01.10.10 30 hrs per week @ $24.67 per hour (M Ellis 7.10.11 p2)(iv) 02.10.10-05.12.117 hrs per week @ $25.65 per hour (T 75 line 50, M Ellis 7.10.11 p2)* Dates as appearing on plaintiff's damages schedule $8,460.00$9,900.00$15,913.00$11,380.00 $45,653.00 (b) Future Paid Domestic Assistance:3.5 hrs per week @ $64 per hour (T 76 line 1, Dr Bodel 22.3.11 para 12, M Ellis 7.10.11 p3.6) (3.5 x 64 x 938,2) $187,640.00 (c) Future Paid Property Management Assistance: Horse feeding $50 pw (T 74 line 20); Gardening $90 per mth (T 73 line 32); Clearing & Maintenance $175 per qtr (T 74 line 4; M Ellis p3.8) (86 x 938.2) $80,685.00 Economic Loss:(a) Past (agreed)(b) Interest (agreed)($35,000 x 0.7 x 2.1 x 0.05)(c) Superannuation Loss (agreed)($35,000 x 0.11)(d) Future Economic Loss(Cushion) $35,000.00$2,573.00$3,850.00$150,000.00 $191,423.00 TOTAL $801,177.29 Non-economic loss 266The plaintiff submits that the percentage of a most extreme case pursuant to s 16 Civil Liability Act 2002 (NSW) is 38% while the defendant submits it is between 30% and 32%. In my view, having regard to the seriousness of the plaintiff's injuries, 38% would be appropriate. Past and future out-of-pocket expenses 267Past out-of-pocket expenses of $37,606.29 are agreed. 268The defendant submits that the claim for future out-of-pocket expenses is excessive in that the plaintiff does not have the need to attend her general practitioner or orthopaedic surgeon as often as claimed. This is particularly the case as the possibility of an arthroscopy and knee replacement is only expressed by Dr Ryan to be a possibility in that the plaintiff "may" require such treatment. However, the possibility of a knee replacement given the degree of the plaintiff's injury does seem more likely than not and it is accordingly appropriate to make the kind of allowance that has been made by the plaintiff in the damages schedule. 269I note the opinion of Dr Ryan about a mobilisation program. While the amount claimed seems high, it is appropriate to allow for costs of the kind outlined by Dr Ryan and I would allow this item. 270In relation to hydrotherapy, the benefits of this form of exercise for injuries of this kind is commonly observed in claims for damages. The claim is modest in compass ($1,624.00). I would allow the amount. Past and future home care and domestic assistance 271The claim for past home care and domestic assistance is not disputed by the defendant. 272The claim for future paid property management assistance, feeding horses and looking after the farm is asserted not to be commercial assistance and therefore not claimable. I do not accept this submission. These are tasks which are beyond the plaintiff to perform and it is appropriate that these kinds of job should be performed by someone who is paid to do them. Past and future economic loss 273Past economic loss is agreed. A claim of $150,000.00 as a cushion for future economic loss is claimed. 274In this regard, I do accept the submissions of the defendant. This is a very substantial sum to be claimed as a cushion in circumstances where the plaintiff has not only returned to work at her former employment, but has also managed to continue her second job of working at Horselands. 275The plaintiff is working in a managerial role in secure government employment, in a situation where she can manage her work hours. She has sufficiently recovered to participate in her second job. She is able to perform that second job notwithstanding the fact that it involves standing for long periods of time. I agree with the submission of the defendant that an allowance of one year's income of $50,000.00 would be a more appropriate cushion. 276Accordingly, in the event that I have erred in finding for the defendant, the amount to be awarded would be $701,177.29. If my findings concerning contributory negligence were accepted, this amount would be reduced to zero (if the plaintiff's failure to advise the defendant were accepted) or 80% (if the finding that the plaintiff did tell the defendant was held to be the correct finding of fact). The 80% figure would result in a reduction of $560,941.83 and result in a total of $140,235.46. Costs 277I have made an order below for judgment in favour of the defendant. In anticipation that there may be issues in relation to costs, I have reserved the issue of costs with liberty to apply. This will include the costs of the vacated hearing of 1 June 2011. Orders 278Accordingly, I make orders as follows: (1)Judgment for the defendant. (2)Costs reserved. (3)Liberty to apply in relation to costs. (4)Exhibits to be retained until further order. ****** 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: 20 April 2012