Elly May Paton v Bronzewing Bloodstock Pty Limited [2015] NSWDC 54

District Court New South Wales

Medium Neutral Citation: Elly May Paton v Bronzewing Bloodstock Pty Limited [2015] NSWDC 54 Hearing dates: 30 March – 2 April 2015 Decision date: 24 April 2015 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and Judgment for the Plaintiff. For orders see [115] Catchwords: Employer's liability; Horse training accident; Safe system of work; Assessment of work injury damages. Legislation Cited: Civil Liability Act 2002 (NSW) Occupation Health and Safety Act 2000 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Work, Health and Safety Act 2011 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Fox v Wood (1981) 148 CLR 438 Kondis v State Transport Authority (1984) 154 CLR 673 McClean v Tedman (1984) 155 CLR 306 Penrith City Council v Parkes [2004] NSWCA 201 State of New South Wales v Moss [2000] NSWCA 133 Category: Principal judgment Parties: Elly May Paton (Plaintiff) Bronzewing Bloodstock Pty Limited (Defendant) Representation: Counsel: C Hart (Plaintiff) S Hickey (Defendant)

Solicitors: Bale Boshev Lawyers Turks Legal File Number(s): 14/7352 Publication restriction: Nil

Judgment

The Plaintiff's Claim 1. The plaintiff claims damages for injuries suffered by her at work on 7 February 2011. The defendant was a corporation conducting a horse training facility known as "Bronzewing Farm" at Seaham, New South Wales, where it employed the plaintiff as a stable hand and track work rider. 2. On 7 February 2011, the plaintiff, who was born in 1991, was riding a horse known as "Koi Fish" at the direction of its trainer and principal of the defendant, Lesley Molony. Whilst the plaintiff was riding that horse, it bolted and ran into a fence, causing the plaintiff to fall off the horse and suffer severe injuries, including a comminuted fracture of her right femur, a fracture of the left forearm olecranon and an injury to her lower back. 3. The plaintiff pleads that her injuries were caused by the negligence and/or breach of statutory duty of the defendant. The particulars pleaded are as follows: 1. "By the defendant, its servants and/or agents, having a system of work that was unsafe and likely to cause injury, it requiring the plaintiff to undertake track work on a horse that was dangerous. 2. By the defendant, its servant and/or agents, failing to direct the plaintiff not to carry out the work until such time as she was provided with a safe system of work or the appropriate equipment. 3. By the defendant, its servants and/or agents, failing to direct the plaintiff not to carry out the work until such time as she was provided with a safe area in which to conduct the track work, such area being a race-track with a suitable fence or guardrail. 4. By the defendant, its servant and/or agents, failing to take reasonable care to monitor, identify and eliminate the risk involved in the system of work. 5. By the defendant, its servant and/or agents, failing to warn the plaintiff of the risks associated with the use of the system of work. 6. By the defendant, its servant and/or agents, failing to undertake any risk assessment in relation to the system of work, such risk assessment likely to have prevented the circumstance of injury. 7. By the defendant, its servants and/or agents, failing to take heed of the warning of the plaintiff that she was concerned of the risk posed by riding the horse. Particulars Verbal warning from the plaintiff to Lesley Molony on 7 February 2011. 1. By the defendant, its servants and/or agents, failing to take heed of the warnings of its other employees that the horse was dangerous. Particulars Verbal warning from Hayley Mulheron to Lesley Molony in or around 2009 - 2011 1. The plaintiff repeats the allegations in paragraphs 5(a) to (g) above and stated that the circumstances establish breach of the provisions of the Occupational Health and Safety Act 2000 and/or its regulations, insofar as the Defendant failed to take reasonable care to observe the risk of injury to the plaintiff and eliminate it prior to his injury and/or failed to ensure the site was free of risks of injury."