Blight & Webster v Ruzicic

The more difficult questions, in some respects, are those to do with quantum.

There is no contest from the defendant that the costs of treatment of the horses is a sum of $6825.97 and that the claim is reasonable in that respect.

The defendant, however, disputes the claims for diminution in the value of the horses and for time spent by the plaintiffs themselves caring for the animals.

Certain sums are claimed for extra time spent by employees. As I understand it, the defendant does not contest the reasonableness of those amounts. On the other hand, he does dispute the claim for the value of gratuitous care provided by Howard Blight and his daughter Natasha Webster to the horses.

The issues therefore are whether there is reasonable or reliable evidence of diminution in the value of two of the three injured horses and whether the gratuitous care provided by Mr Blight and Mrs Webster to the horses is a compensable loss.

After the horses were injured, it was not only necessary to have them treated by a veterinarian but for someone to dress and bandage their wounds. The plaintiffs testified that they had spent many hours tending to the injured fillies. By referring to the stud diary, Mr Blight was able to say that he had spent 242 hours in this way, Mrs Webster 198 hours, a stablehand Ms Toms 72.5 hours and another stablehand, Mr Brooks, five hours. Mr Blight stated, without directly or expressly providing a basis for it, that he claimed $30 per hour for his time. The plaintiffs value the time of Mrs Webster and the stablehands at $15 per hour.

The evidence shows that Mr Blight has had vast experience in breeding horses. Indeed, his evidence was that he had grown up with horses and has been breeding thoroughbreds for the yearlings sales for several years. It was clear enough from the evidence that he takes the leading role in the management of the stud. While no survey evidence showing rates of pay on horse studs was presented by the plaintiff, it is self-evident that $15 per hour is not a very high rate of pay and that $30 per hour, which translates to roughly $60,000 per annum for a full-time salary or wage is not a very high rate for a very experienced professional person involved in a complex and highly skilled occupation. In my view, the rates claimed are, of themselves, reasonable in the circumstances.

The harder question to answer is whether there is a recognised or recognisable head of damage under which the claim for the time spent tending the horses' injuries stands.

Neither counsel was able to point to any authority directly dealing with the question of provision of gratuitous care by a plaintiff to his or her own injured animals. Counsel for the plaintiffs argued that the services provided by Mr Blight should be characterised as "tending to an investment" (the horses being bred for sale). Counsel for the defendant, very fairly, did not argue categorically that the loss was not compensable but simply submitted that it was unclear that the loss was compensable. The only authority of any relevance or assistance to which he was able to refer me was the decision of the Court of Appeal in Athanasopoulos v Moseley [2001] NSWCA 266.. In my view, and he conceded this, that case has at best limited application here.

In Anathanasopoulos various plaintiffs (backed by their insurer) had claimed damages for the cost of using replacement motor vehicles ("courtesy cars") while their own cars were being repaired. The courtesy cars had been gratuitously provided by the insurer rather than under a term of the contracts of insurance. They were a non-contractual benefit provided by the insurer to encourage brand loyalty. Among other things, the Court decided that if a chattel is harmed damages may be recovered not only for the amount which it may be necessary to spend in repairs but also for the loss of the use of the article injured during the period that the repairing may occupy. In this case, the plaintiffs, of course, did not suffer the loss of the "use" of their horses. The fillies, however, were in desperate need of "repairs" or, more specifically, quite intensive care while their wounds healed.

In argument I raised the question whether the High Court's decision in Griffiths v Kerkemeyer (1977) 139 CLR 161. may have application by analogy in this case. In that case it was held that the plaintiff was able to recover damages for voluntary or gratuitous care provided by a third party. Griffiths v Kerkemeyer, despite conceptual problems inherent in it, has been considered and upheld a number of times by the High Court since it was decided. See Van Gervan v Fenton (1992) 175 CLR 327; Kars v Kars (1996) 187 CLR 354; and Grincelis v House (2001) 201 CLR 321. In my view, it stands for a proposition of general law and is not confined to personal injury matters. If a plaintiff suffers loss or injury and consequently needs care, the cost or value of that care is a compensable loss. Nevertheless, the analogy between Griffiths v Kerkemeyer and this case is not exact.

In Griffiths the plaintiff recovered from the tortfeasor a sum of money in respect of services provided by a benefactor to the plaintiff. On one view - and this is where the main conceptual difficulties emerge - the plaintiff received a windfall because the tortfeasor could not be allowed to receive a windfall. The benefactor was not compensated.

Here, however, the plaintiffs were the owners of the injured animals. They provided the services for which they now claim compensation. The fundamental principle of the law of damages is that the injured party should, as nearly as possible, be placed back in the position he or she or it would have been but for suffering the wrong for which compensation is to be provided.

Professor Fleming The Law of Torts 9th edn., LBC, Sydney 1998 p.285., considering the question whether a plaintiff who, as a result of the negligence of the defendant, lost the use of a non-earning car, reviewed the line of cases from Donnelly v Joyce [1974] QB 454. through Griffiths v Kerkemeyer to Kars v Kars (1996) 187 CLR 354. and concluded that "[t]he guiding principle, here as in the case of personal injury, should be that [the plaintiff's] loss is not the expenditure incurred for a substitute, but his need for it." That principle has application here.

The horses needed very close attention after they were injured. If that care was to be provided, the owners needed either to buy the care from stablehands or to substitute their own time for that of stablehands. In whichever form the care was provided, the owners had need of it for their horses. That was their loss.

As a result of the behaviour of the dogs, the plaintiffs were obliged either to spend their own time doing the extra work required to tend the horses or to hire assistance (or both). Had they hired extra stablehands or had their stablehands worked extra hours there could be no serious argument that the loss would be compensable. There is no material difference in principle if they provided the services themselves. It is then a matter of quantifying the value of those services and I am satisfied that the plaintiffs have done so.

The plaintiffs claim the difference between the values of the horses presented in first-class condition for sale and the residual values attributed to them in their post-traumatic conditions by an expert valuer. The issue here is not one of principle but one of evidence. The question is what weight should be given to the expert evidence of the valuer of the horses, given that his estimates in two cases of the values of the horses were considerably different from the sale prices achieved in the real rather than hypothetical market place.

The horses were valued by Mr Jonathon D'Arcy, a director of William Inglis and Son Ltd, a well-known thoroughbred auction house. Mr D'Arcy is a senior valuer with the company and a licensed thoroughbred auctioneer. In May 2005, he valued the three fillies. He was asked to provide three values for the horses: first, in their pre-injury conditions; second, as if presented for sale in first-class condition; and, third, in their post-injury conditions.

In valuing a thoroughbred, Inglis takes into account its pedigree, its race record (if any), its age, its health and condition, the race record of any progeny and recent sales of similar bloodstock.

For the bay filly known as Jessie he offered a value of $15,000 before she was injured; $25,000 if offered for sale in first-class condition and $5000 as her residual value sold with extensive scarring possibly as a broodmare. This horse was subsequently sold for $125,000. This is probably explained by the fact that she is a full sister of a Melbourne Cup runner-up. The plaintiffs make no claim for diminution in value in relation to her.

For the black filly known as Joyce his valuation in her pre-injury condition was $8000 and $12,000 if offered for sale in first-class condition. He considered her residual value with scarring was $2000. She has been retained by the plaintiffs as her legs are badly scarred. Mr Blight testified that he did not think she could be sold but conceded that there was nothing to prevent her being sold as a broodmare.

The chestnut filly known as Josie was valued by Mr D'Arcy at $5000 before her injury; $8000 in first-class condition and he estimated her residual value after her injuries was $1000. She sold for $7000.

The plaintiffs contend that, absent evidence from another expert contradicting the values provided by Mr D'Arcy, the court should accept his estimate as the best guide to the losses they have suffered. Counsel for the defendant, however, argues that, since the horses that were subsequently sold exceeded the valuations attributed to them by Mr D'Arcy many times over, the court cannot not reasonably place any reliance on the valuation evidence of Mr D'Arcy.

Certainly the difficulties of accurately estimating losses when the subject matter is a thoroughbred horse are manifold. Mr D'Arcy, applying his years of experience as a valuer and auctioneer, did not get close to the market prices of the two horses sold, yet the criteria he considered seem appropriate and he does not appear to have left any significant factor out of consideration except the imponderable question of the dreams and ambitions of people who buy racehorses. 26. Although the bay filly sold for five times the value estimated by Mr D'Arcy, it is inconceivable that, given the nature and extent of her injuries, her value had increased. In my view, her real value, if presented in first-class condition and sold at the time and place she was, is likely to have exceeded $125,000 and that by achieving only $125,000 for her, the plaintiffs have in fact suffered a loss. Nevertheless, as they do not claim it and cannot quantify it, they go without compensation in that respect. 27. The evidence suggests, in fact, that Mr D'Arcy's valuations are very conservative indeed. He underestimated the value at sale of two horses in their injured conditions by considerable margins. While two horses are, of course, a tiny and unreliable sample upon which to draw any firm conclusions, it seems reasonable to assume that his estimates of the values of the horses in first-class condition are also very much on the low side. That is to the defendant's advantage. Nevertheless, the plaintiffs do not seek to revise their claims upwards but are content with Mr D'Arcy's estimates. 28. While I suspect that the reality may be that the true losses suffered by the plaintiffs may have been higher than the estimates offered by Mr D'Arcy, his is the best evidence available. In my view, absent some better guides, his estimates ought be accepted. 29. In respect of diminution in value I will therefore allow $10,000 for the black filly Joyce and $1000 for the chestnut filly Josie.

Conclusions 30. It follows that I allow the plaintiffs' claims in their entirety except in relation to a claim for the cost of the valuation. That appears to me to be in the nature of a disbursement rather than a compensable loss per se. 31. There will be a verdict for the plaintiffs in the sum of $25,258.47. Interest is to be calculated on that sum by the Registrar from 22 April 2005.

32. In relation to costs the order I propose is that costs be as agreed or assessed. Parties to have liberty to apply on that question.

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