Fairall v Hobbs

The primary judgment

1. The primary judge upheld the respondent's claim. His Honour was satisfied that the accident was a "motor accident" within the meaning of the MACA. His Honour found in favour of the respondent, essentially because he held that: 1. the second appellant was driving at an excessive speed, somewhere in between 60 and 70 km per hour, when she passed the respondent on his horse; and 2. although the second appellant was on the opposite side of the road to the respondent and his horse, the second appellant owed the respondent a duty of care to move further to her left, towards the kerb and gutter on the northern edge of Cooramin Street, as she passed the horse.
2. In making the first finding, as to the speed of the appellants' vehicle, the primary judge relied on an estimate of its speed given by the respondent which he had said during the trial he would place no weight upon, and which was not pressed by the respondent's counsel.
3. Consistent with the findings as to the second appellant's driving, the primary judge found that the accident was not a "blameless motor accident", because it was caused by the negligence of the second appellant. The primary judge was also satisfied that the respondent was guilty of contributory negligence by failing to keep the vehicle in sight.
4. Damages were assessed in the sum of $484,632, which were reduced by 30% for contributory negligence. His Honour awarded the respondent $339,242.40. The assessment of damages was not challenged in this appeal.
5. Other than a passing reference at the end of his lengthy reasons, his Honour did not address the requirements of those parts of the Civil Liability Act 2002 (NSW) which apply to the MACA, nor s 138 of the MACA (Contributory negligence-generally), despite being referred to them by counsel appearing for the appellants at trial.

The relevant statutory provisions

1. A "motor accident" is defined in s 3 of the MACA: "'motor accident' means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control."
2. Further, s 3A of the MACA provides: "(1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. … (2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents."
3. A "blameless motor accident" is defined in s 7A of the MACA: "'blameless motor accident' means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person."
4. A successful motor accident claim entitles the plaintiff to damages under Div 1 of Part 1.2 of the MACA. Relevantly, Divisions 1-4 and 8 of Part 1A (Negligence), and in particular ss 5B and 5D of the Civil Liability Act also apply to the MACA. This Court has emphasised on numerous occasions the importance of close attention to these provisions in pursuing negligence claims. Despite this, the amended statement of claim in the present case contained no reference to ss 5B or 5D of the Civil Liability Act. The appellants' defence referred to those provisions. The written submissions of the respondent referred to those sections, incorrectly, as providing "defences".

The issues on this appeal

1. The appellant appeals as of right pursuant to s 127 of the District Court Act 1973 (NSW). An amended notice of appeal was filed on 30 August 2016.
2. The appellant relies on 12 grounds of appeal, 10 which address the primary judge's principal findings and grounds 6 and 12 which address the "blameless motor accident" issue which I will deal with later in these reasons. Stripped to their essentials, the 10 grounds of appeal address: 1. the findings of the primary judge about the speed and proximity of the appellants' vehicle to the respondent and Buck (grounds 7-8); 2. the absence of analysis or findings by the primary judge about the requirements of s 5B of the Civil Liability Act and any posited duty of care (ground 9-11); and 3. the absence of analysis or findings by the primary judge about the requirements of s 5D of the Civil Liability Act and the issue of causation (grounds 1-5).
3. By notice of contention, the respondent sought to maintain the verdict by seeking a finding that he suffered loss and damage by reason of a blameless motor accident.
4. A cross-appeal filed by the respondent addressing the issue of contributory negligence was not pressed before this Court.

Grounds 7-8 - the speed and proximity of the appellants' vehicle

1. The primary judge regarded the speed at which the vehicle was travelling as a critical issue in his Honour's finding of negligence. It was the first issue dealt with by the parties on this appeal and for that reason I will deal with it first as well.

Appellants' submissions

1. The appellants submitted that there was no physical evidence from which the speed of the vehicle could be deduced or inferred. The appellants submitted that the primary judge erred in giving any weight to the respondent's "impression" that the vehicle was going probably 60 to 70 km per hour as it passed the respondent and his horse, as the respondent did not see the vehicle until it was "in his face".
2. Further, the appellant submitted that there was no sound basis to reject the evidence of the second appellant or Mr Moore, both of whom were adamant that the vehicle was going no more than 40 km per hour when approaching and passing the respondent and his horse.

Respondent's submissions

1. In writing, the respondent submitted that the primary judge correctly accepted the respondent's evidence on this issue for the following reasons, which were that the respondent: 1. was an experienced horse rider; and 2. had life experience such that he had an intimate personal knowledge of how horses, including Buck, would behave in certain circumstances.
2. The respondent submitted, without elaboration, that the primary judge was entitled to reject the second appellant's evidence on the speed issue. The respondent also submitted that the primary judge was correct in accepting that there had been some "telescoping" of events in Mr Moore's memory.
3. In oral submissions about the speed of the vehicle senior counsel for the respondent submitted that: 1. he could not defend the exercise the primary judge undertook in the critical paragraph [153] where his Honour accepted the evidence of the respondent that the second appellant's car was travelling at a speed of 60 to perhaps 70 km per hour; 2. the issue of the speed of the vehicle was canvassed in other evidence in cross-examination of the respondent; and 3. the car "must have been going at more than 40 kilometres an hour to have caused this horse to react the way it did".

Consideration of grounds 7- 8 - the speed and proximity of the appellants' vehicle

1. The primary judge found, in a number of passages which I will recount in full, that the appellants' vehicle was travelling at a speed of 60 to 70 km per hour: "[153] I accept, therefore, that prior to reaching the speed signs, the second defendant's vehicle was travelling at 60 kph. I do not accept that, when she approached the speed signs she either applied the brake, lowered the gear or even eased off the accelerator. I accept the evidence of Mr Moore that nothing happened at that place. Mr Moore said at T365.08, 'You'd have to floor it to get it up a hill.' If that be the case, then the second defendant must have been accelerating the vehicle to the maximum possible to ascend the incline on Cooramin Street. When she reached the crest, and the angle of the incline reduced, unless she eased off the accelerator, then the speed of the vehicle would have increased. Unless prior to reaching the tree, that is the datum in this case, the second defendant eased off the accelerator or braked, then one would expect her speed to increase beyond 60 kph perhaps to get to 70 kph. That ties in with the impression formed by the plaintiff recorded at T77.45 that it was 'going probably 60 to 70 kilometres an hour at that particular stage'. … [156] I have come to the view that it was likely that his attention was drawn to the plaintiff by the second defendant only after she had completed the ascent of the incline and was on the relatively flat area which one can see in exhibits E and F. In other words, the second defendant was probably approaching 70 kph prior to being about 25 metres from the plaintiff; that is, to the west of the commencement of the kerbing and guttering. She then eased off her speed. How she did that I do not know but clearly Mr Moore thought it odd that she should be reducing her speed. There is only evidence from Mr Moore of one movement to the left of the carriageway and I believe that could only be after the second defendant reached the area where there is kerbing and guttering, 23.5 metres west of the tree. … [159] Accepting that there was no decrease in speed at the speed signs and that the second defendant maintained acceleration beyond the speed signs and after the crest, and onto the relatively flat area of Cooramin Street, I accept that the second defendant probably reached a speed around 70 kph. I accept that there was some deceleration but given the distance involved I do not believe it would have dropped below 60 kph when the second defendant's vehicle passed the plaintiff on her right, and the tree on her left. I accept the evidence of the plaintiff that as this vehicle was driving past him the horse 'froze' and immediately after it had gone past, which would have been in the blink of an eye, the horse commenced to buck and although it did not go at 90 degrees away from the car, it headed away from the car at 45 degrees, towards the direction of the motorcycle. [160] Mr Roberts submitted that I can give some weight to the plaintiff's evidence about speed. His written submissions are MFI 8. At [16] he submitted this: 'On the issue of the speed which the defendant's vehicle was travelling, the plaintiff's evidence was understandably somewhat vague. He did not have a great opportunity of estimating its speed. Nonetheless his estimate is in evidence and may be taken into account. He said, when asked whether he agreed with the suggestion that the car was travelling at 40 kph as it came towards him and past him, that he did not believe it was going that slowly, and he thought it was going faster than that, and probably 60-70 kph, and he added the explanation that he believed that if the vehicle had been going 40 kph the horse wouldn't have 'spooked'.' Mr Roberts then referred me to T78.20 but I have already canvassed that evidentiary point. At [61] Mr Roberts made this submission: 'It may be put that because he [the plaintiff] said that in his opinion the horse would not have bucked if the car was only travelling at 40 kph. The plaintiff was reconstructing. It was not directly put that it was only on the basis of that opinion that he gave evidence the car was travelling significantly faster than 40 kph. However the manner in which the plaintiff gave the evidence regarding his opinion is often seen when an unsophisticated witness is giving evidence, and should not, I submit, be taken as speculation, as was put.' There is force in that submission. Not only could the plaintiff be described as 'unsophisticated' but he could also be described as laconic. Given his background and work history, the plaintiff was clearly a country man and a short distance for him would probably be the proverbial country mile. Persons of Mr Hobbs' age and background do not tend to overestimate but to underestimate. Given Mr Hobbs' life experience some weight should be given to his opinion as to the speed not only of the vehicle, but, given his background as a horseman, some weight should also be given to his opinion as to what caused the horse to react in the way it did. The probabilities, in my view, favour the proposition that it was the speed of the defendant's vehicle and its closeness to the plaintiff's horse, the proximity of the stimulus to the horse, that caused the horse to react in the way it did. That was the opinion of the plaintiff himself which can be given some weight. That was certainly the expert opinion of Mr Doughty which I accept and the competing theory is one that I have already rejected. … [162] Again, as I just said, that appears to me to have been what she knew at the time of giving evidence and not what she did on the day of the accident. On Mr Moore's evidence, she could have been further to the left and therefore increased the distance between her car and the horse. Equally, she could have slowed down but her slowing down was not adequate enough. As I said, it is likely that she was doing 60 kph when she reached the crest. Her speed would have been increased thereafter, perhaps to 70. Only then did she start to slow down but the distance was not long and she would have been doing somewhere between 70 and 60 kph when she passed the horse on her right and the tree on her left. That it took her at least a further 100 metres, if not 110 metres, to bring her car to a stop is evidence of the speed at which she was travelling."
2. Having regard to the critical importance of the issue of the speed of the car as it approached and passed the respondent and his horse, I will set out the relevant evidence in a little detail.
3. The only evidence of the vehicle travelling at a speed in excess of 40 km per hour was given by the respondent. The critical evidence relied upon by the primary judge (as set out in paragraphs [153] and [160] of the primary judgment which I have quoted above) was given at T77.37-78.30 in the course of examination-in-chief. The passage of the transcript in which it was given should be set out in full: "Q. Could I ask you this? If it was to be suggested to you that the car, as it came towards you and passed you, was travelling at no more than 40 kilometres per hour, and I understand you can't say precisely how fast it was going, what do you say to the suggestion that it was going at no more than 40 kilometres per hour? A. I don't believe it was going that slow. Q. What was your impression as to her speed? A. I believe - I know the car was going faster than that. It was going probably 60 to 70kms an hour at that particular stage. OBJECTION ROBERTS: After the words 'faster than that'. HIS HONOUR: I take it as the plaintiff's estimate only. WILSON: Thank you. He's not even-- HIS HONOUR: To put any weight on it, I'd have to have a lot more evidence. ROBERTS: I understand that. As to the estimate of speed, I accept what your Honour said but the evidence of going faster than that, I would submit is admissible. HIS HONOUR: The fact that he believes it to be greater than 40, I accept. We don't know what the speed limit is. Most motorists generally travel at the speed limit and the difference between 60 and 70 is not particularly great. The difference between 40 and 60 is however. ROBERTS Q. What was it that led you to make that estimate? A. I believe if the vehicle had been going 40, that horse wouldn't have spooked. OBJECTION. ROBERTS: I don't press that. WILSON: That is complete speculation. HIS HONOUR: It is speculation, I won't strike it out I'll leave it there but I won't give it any weight at all."
4. Four matters should immediately be noted. First, the evidence was led as the respondent's "estimate of speed". The primary judge correctly observed that the evidence was not entitled to be given any weight without "a lot more evidence". Secondly, the critical reasoning underlying the respondent's "estimate" was an assertion based on the behaviour of his horse. The central issue in the case was the cause of the horse's aberrant behaviour. The only reason given by the respondent in response to an open-ended question from his own counsel seeking to establish the basis of his estimate of speed was the horse's aberrant behaviour. That reasoning was an impermissible ex post facto rationalisation of the events. The primary judge should have given the respondent's estimate of the speed of the vehicle no weight. Thirdly, senior counsel for the respondent did not press the answer which provided the critical reasoning underlying the respondent's estimate of speed. Fourthly, despite ruling in response to the objection taken by the appellants that he would give this evidence no weight, the primary judge relied upon this passage (and only this passage) of evidence to support his dispositive reasoning about the speed of the appellants' vehicle.
5. That is not the end of the difficulties about the primary judge's findings about the speed of the appellants' vehicle. The background to the evidence I have set out above was that when originally asked in evidence-in-chief about the speed of the appellants' vehicle the respondent said that: "I didn't take a lot of notice of it, then I lost sight of it and all of a sudden it just turned up in my face…"
6. Shortly thereafter the following evidence was given: "Q. Now, did you, I know you only had a couple of a short time to look at it, did you form some view as to the speed in which the plaintiff was travelling, at which the vehicle was travelling? A. I thought the vehicle was going a bit quick. Q. What do you mean by that? A. I can't actually place a speed on her driving, but I know it come fast to me quick and it was fairly noisy, the engine of that car, is that-- Q. You're not prepared to say how fast it was going, I understand that? A. Well, I don't know, but it was moving up."
7. On his own account the respondent was in no position to give an estimate of the speed of the appellants' car. From a distance, he saw the appellants' vehicle turn into Cooramin Street and head towards the first lot of speed signs. He was then apparently distracted and only noticed the car again when it "turned up" in his face. The evidence of the speed of the appellants' car given by the respondent was correctly described by the primary judge in argument as being of no weight. His Honour erred in taking that evidence into account in his dispositive reasoning about the speed of the appellants' vehicle.
8. To the extent that senior counsel for the respondent in oral submissions in this Court relied upon later evidence given in cross-examination by the respondent that evidence was similarly of no weight. During cross-examination, in a non-responsive answer to a question asked by the appellants' counsel the respondent said: "Q. In fact, what we do know is that so far as you were concerned he was perfectly fine near cars, wasn't he? A. As far as I was concerned he was good near cars. Q. That included being near, quite close to cars? A. Yeah. Yeah. He was - he was traffic broke. That's all I can say. Q. Fast moving cars also? A. I don't know - yeah, I think he was all right. He was traffic broke. All I can say he's a traffic broke horse. When I - when I rode the horse out of my place there was trucks and stuff next door to Rodney's and he never ever spooked prior to that occasion."
9. The primary judge refused to strike out the word "spooked" in the last quoted answer. He was in error in failing to do so. The primary judge's ruling refusing to strike out the non-responsive answer demonstrates the error in his approach: "Well, it goes to the heart of the matter. The horse being, you know, startled by a fast moving car nearby. What's the problem with using the word "spook" because that's exactly what it is, it just means startled." (italics added)
10. The respondent's answer was not only non-responsive but suffered from the same impermissible assumption as the evidence he had earlier given about the connection between the speed of the car and "Buck's" reaction. In light of that error junior counsel for the appellants cannot be criticised for attempting to deal with this evidence later in the cross-examination. In the passage relied upon by his senior counsel on this appeal, the respondent repeated the same assertion about a link between the speed of the appellants' vehicle and the reaction of his horse. That assertion took the matter no further.
11. The only other evidence led by the plaintiff about the speed of the vehicle was from an expert in training horses, Mr Doughty. I strongly doubt that much of the evidence of Mr Doughty or that of the expert called by the appellants, Mr Jefferys, was admissible under s 79 of the Evidence Act 1995 (NSW). The appellants' counsel submitted orally in this Court that the experts' evidence was, in reality, of little, or no, utility as it involved the experts seeking to put themselves in Buck's position (or mind) as to which they had no relevant expertise. There is much force in that submission (see Nominal Defendant v Ismail [2014] NSWCA 432 (at [21], [29] per Basten JA), which counsel for the respondent did not seriously gainsay.
12. Mr Doughty's evidence was that a horse is likely to buck when it perceives a need to escape from a threat. The likelihood that a trained horse under saddle would shy or buck is dependent on a number of variables that will determine just how startled the horse is and how the horse perceives it is restricted from escaping. A horse is less likely to shy if a vehicle passing the horse allows as much distance as possible when passing, reduces speed and reduces noise. It may be accepted that these matters fit comfortably within Mr Doughty's specialised knowledge, training or experience.
13. Mr Doughty went on, however, to opine that while it was possible that a range of things, including wildlife in the grass, the horse's own shadow and even a piece of paper could have caused the horse to misbehave, in this case it was more probable that the cause of the misbehaviour was the appellants' vehicle being driven at high speed past the horse. In expressing that conclusion, Mr Doughty's evidence does not reveal the assumptions he was asked to make or made himself about the contents of the long grass adjacent to the horse at the time of the incident or the speed, path or direction of the travel of the appellant's vehicle. In the absence of a proper identification of his assumptions or evidence which might support relevant assumptions it is unclear how Mr Doughty's specialised knowledge, training or experience permitted him to express any view about the cause of the horse's reaction in this case. As the primary judge observed based on Mr Doughty's evidence, horses "have minds of their own, and do not react rationally because they are not rational beings".
14. Mr Doughty was in no position to offer any reliable opinion about the speed or likely speed of the appellant's car on this occasion. His attempt to give evidence of the likely reaction of the horse, based on what he thought the horse likely perceived on the day in question to be the threat posed to it by the appellants' car, was inadmissible under s 79 of the Evidence Act and should have been rejected by the primary judge. Mr Jefferys' evidence, to the extent that it addressed the likely reaction of the horse, based on what he thought the horse likely perceived on the day in question to be the threat posed to it, was equally inadmissible.
15. None of the evidence in the respondent's case of speeding was capable of establishing that the car was travelling at up to 70 km per hour as the car passed the respondent and his horse. On the respondent's evidence he was in no position to estimate the speed of the car. It came upon him suddenly. He was initially unwilling to offer any estimate of speed, or indeed to offer an opinion that the car was speeding. The respondent's evidence about speed was originally and correctly described by the primary judge as being of no weight.
16. Accordingly, the ultimate conclusions of the primary judge about the speed of the appellants' vehicle based on the respondent's evidence were incorrect and should not have been drawn.
17. The evidence about the speed of the vehicle did not end there. Evidence was given by the driver of the vehicle, the second appellant and the passenger in the vehicle, Mr Moore. The evidence of the second appellant was unequivocal about the speed of the vehicle. That evidence was as follows: "Q. You understand that it was at a point approximately opposite that tree, that is on the other side of the road? A. Yes. Q. That Mr Hobbs says you passed him? A. Correct. Q. I take it you agree that's as best can be worked out the position you did pass him? A. Yes. Q. At that stage you're travelling at what? At 40 kilometres an hour? A. Yes. Q. Are you sure? A. Mm. Q. How do you know? A. Checked my speed gauge. Q. Sorry? A. I checked my speed gauge. Q. When did you do that? A. As I was driving along there."
18. The primary judge rejected the whole of the second appellant's evidence as it "reeked of reconstruction". Further, his Honour found her evidence was "inconsistent with the evidence not only of the plaintiff and Mr Duck, but also her own fiancé, Mr Moore". Giving due deference to the advantages of the primary judge in seeing the witnesses give evidence, his conclusion about the second appellant's evidence concerning the speed of the vehicle is difficult to understand.
19. On the critical evidence of the speed of the vehicle, as I have said, the respondent was in no position to give any estimate of speed and his Honour erred in taking that matter into account as part of his dispositive reasoning on the issue. Mr Duck gave no evidence at all about speed. Indeed, he said he could not comment about the speed of the vehicle as he did not see it travelling uphill.
20. Mr Moore's evidence corroborated the second appellant's evidence. He gave evidence about the speed of the vehicle as follows: "WILSON Q. Did anything occur with the vehicle when you reached the 50 sign? A. Nothing occurred because we were only doing 50 at most. … HIS HONOUR … Q. When she said that, do you know where you were in relation to either the speed signs or the crest or beyond the crest? A. We were roughly on the crest of the hill when Holly has pointed the horse out to me. Q. What, if anything, at that stage happened with the vehicle? A. At that point Holly started to slow down. Further on down the track as we were getting closer towards the horse, I've then asked "Why are we slowing down?" That's just me. If a horse is on the road, you're happy to do your speed limit. Holly slowed down at that point. We're side by side and then I've noticed - I've turned around to have a look to see what's going on with the horse, as then the horse is starting to buck on Hobbs. I've noticed a motor bike down further and then by that point we were doing a U-turn. … Q. You've said that the vehicle slowed down? A. Yes. Q. Do you know what speed it slowed down to? A. 40 or less. Q. Apart from slowing down, did the vehicle do anything else? A. It did veer to the left."
21. That evidence was consistent with the second appellant's evidence about the speed of the vehicle as it passed the respondent and his horse. The primary judge accepted Mr Moore's evidence but found, on a basis which is difficult to discern, that "there has been some telescoping of events in Mr Moore's memory". The primary judge further stated, for reasons which are again difficult to discern, that "one cannot ignore the subtle influence upon him, albeit subconscious, of his relationship with the second defendant and his ongoing contact with her".
22. The explicit basis upon which the primary judge rejected the evidence of the second appellant about the speed of the vehicle cannot be sustained. Neither the respondent nor Mr Duck were in a position to give (or in the case of Mr Duck did give) contrary evidence. Mr Moore's evidence, which subject to the issue of "telescoping", the primary judge accepted, was consistent with the second appellant's evidence about the speed of the vehicle.
23. The primary judge erred in finding that the vehicle was travelling at a speed of 60 to 70 km per hour. The only evidence supporting that finding was the circular reasoning offered by the respondent who initially, and correctly, accepted that he was in no position to estimate the speed of the vehicle. Simply put, the respondent (the plaintiff below) failed to prove his case about the speed of the vehicle.
24. Even assuming (without deciding) that the primary judge was entitled to reject the evidence of the second appellant about speed for other reasons, the absence of evidence from the second appellant about speed does not permit a finding that the vehicle was travelling at a speed of 60 to 70 km per hour. Further, there was no proper basis for his Honour to reject Mr Moore's evidence about the speed at which the vehicle was travelling.
25. Grounds 7 and 8 of the notice of appeal should be upheld. The evidence before the primary judge did not support a finding that the vehicle was travelling at a speed of 60 to 70 km per hour at the time it passed the respondent and his horse.

Appellants' submissions

1. Although couched in terms of an attack upon the findings of the primary judge concerning the proximity of the vehicle to the respondent and his horse, it was made clear in the written and oral submissions of the appellants that the essence of their complaint was that the primary judge had failed properly to identify the relevant duty of care and had failed to address the requirements of s 5B of the Civil Liability Act as to the relevant risk of harm against which the questions of breach of duty and causation could be assessed.
2. The primary judge held that the second appellant's action, in moving her car two-three metres from the kerb, was insufficient to satisfy her duty to take reasonable care. As I have said, this finding was made without reference to the obligations imposed by s 5B of the Civil Liability Act which applied in this case. The finding ultimately made by the primary judge was that the vehicle was approximately five metres from the horse as it passed.
3. The appellants submitted that, if the duty of care had been correctly identified, and ultimately the risk of harm, by moving further to the left of the road as the respondent and his horse approached, so that there was a lateral distance of five metres between them, the second appellant satisfied that duty to take reasonable care, having regard to the relevant risk of harm.

Respondent's submissions

1. In written submissions the respondent emphasised the primary judge's finding that the second appellant had attempted to exaggerate the distance between her vehicle and the horse. This, it was submitted, was a relevant consideration concerning the relationship between the passing of the vehicle and the horse's misbehaviour. It was submitted that the primary judge's finding that the second appellant was trying to exculpate herself was relevant to the existence of the duty of care owed here.
2. In oral submissions senior counsel for the respondent accepted that the primary judge did not set out the scope of the duty of care by reference to s 5B of the Civil Liability Act. It was submitted that the primary judge was entitled to find a breach of duty by the second appellant based upon her admissions that she was conscious that to safely drive past a horse she should drop her speed to somewhere below the speed limit.

Consideration of grounds 9-11 - the duty of care in this case

1. A fundamental problem in the way the respondent (the plaintiff below) and the primary judge approached the issue of the existence and scope of the duty of care in this case is that each failed to address the requirements of s 5B of the Civil Liability Act which applied to the MACA in this case: s 3B(2) Civil Liability Act.
2. In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [11] it was emphasised by the plurality that it was of the "first importance" to identify the proper starting point, which, both in that appeal and here, was the Civil Liability Act, without which there was a "serious risk that the inquiries about duty, breach and causation will miscarry".
3. As Meagher JA said in Garzo v Liverpool / Campbelltown Christian School. [2012] NSWCA 151 at [22]: "To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff's claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed."
4. What was required in this case was that the primary judge should clearly identify the risk (or risks) of harm in respect of which the second defendant below was obliged to take precautions. It is against that risk of harm that the court would then have been in a position to determine the second defendant's knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the second defendant's response, or lack of response, to that risk: see RTA v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59]-[61] per Gummow J.
5. The need to identify the "risk of harm", and to satisfy each of the requirements in s 5B, has been emphasised in numerous subsequent cases in this Court: Shoalhaven City Council v Pender [2013] NSWCA 210 at [55]-[72] and [83] ff; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [139]-[160]; and Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [100]-[129].
6. The failure by the primary judge to identify the relevant risk of harm means grounds 9-11 of the notice of appeal should succeed. The failure to identify the risk (or risks of harm) left the court below in no position to determine the second appellant's knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the second appellant's response, or lack of response, to that risk or those risks. The steps taken or not taken by the second appellant relating to the speed and proximity of the vehicle to the respondent and his horse could not be tested in this case, as they must, against a properly identified risk of harm. It was of no assistance to reason that the second appellant failed in her duty by moving her car two or three metres from the kerb, as that was "insufficient". It is relevant to observe "insufficient" when compared to what standard? The primary judge's reasoning, by omitting a properly identified risk of harm against which to test the second appellant's conduct, begs the question relevant question.
7. It was also no answer to the failure properly to identify the duty of care and the relevant risk of harm to point to evidence of the second appellant "seeking to exculpate herself" or evidence said to constitute an admission by the second appellant that to drive past a horse safely she should drop her speed to somewhere below the speed limit. At best that evidence could have gone to the question of the second appellant's knowledge of a specified risk of harm. Having failed to identify any risk of harm, as his Honour was required to do, the primary judge fell into error.
8. In fairness to the primary judge, the amended statement of claim made no reference to s 5B or any risk of harm. The description of s 5B of the Civil Liability Act in the respondent's written submissions before the primary judge as a "defence" is to be deprecated.
9. Grounds 9-11 of the notice of appeal should be upheld.

Appellants' submissions

1. The appellants submitted that the primary judge erred in approaching the question of causation without addressing the critical requirements of s 5D of the Civil Liability Act. Section 5D provides: "(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation" ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability" ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
2. The appellants submitted that the primary judge erred in finding that the speed and proximity of the appellants' vehicle caused the horse to buck by: 1. giving weight to the respondent's opinion on this matter; and 2. accepting the "expert" opinion of Mr Doughty, which was largely if not wholly based on his belief that the horse may have "perceived" the appellants' vehicle as a "sudden threat" and bucked and run in an attempt to "escape" that "threat".
3. Further, the appellants submitted that even if it was permissible for the primary judge to speculate what the horse may or may not have "perceived", his Honour erred in finding that the appellants' vehicle caused the horse to "perceive" it as a threat in circumstances where: 1. the vehicle was being driven on the correct side of the road which was not the side of the road closest to the horse; 2. the horse had an unimpeded line of sight to the approaching vehicle of about 300 metres; 3. the horse could easily move onto the grass verge on the left (away from the vehicle) if so inclined; and 4. the horse had prior experience "in traffic".
4. The appellants submitted that the respondent had failed to discharge his onus in establishing that "but for" the speed of the appellants' vehicle and its proximity to the horse, the horse would not have bucked. This is because it is impossible to determine: 1. a speed at which the horse may not perceive the appellants' vehicle as "excessive" or a "threat"; or 2. a lateral separation distance from which the horse may not perceive the appellants' vehicle as a threat.

Respondent's submissions

1. The respondent submitted that the primary judge's factual findings were correct and sufficient to establish causation.

Consideration of grounds 1-5 - causation

1. The matters identified in s 5D(1)(a) of the Civil Liability Act, which are critical in the present case, are prerequisites to a finding of causation. In Adeels Palace at [43] the High Court said that the two tests expressed in s 5D may differ from the common law test of common sense causation. The factual causation test in s 5D(1)(a) has been held to reflect the "but-for" test of causation: Adeels Palace at [45] and [55]. Clearly the test in s 5D(1)(a) requires identification of the "harm" alleged to have been suffered. This ties in with the requirement in s 5B to identify the "risk of harm".
2. Regrettably, the decision of the primary judge failed to grapple with this issue at all. The "passing remark" to which reference was earlier made is found in [275], which was in the following terms: "HIS HONOUR: I have enquired of the representatives of the parties whether any further reasons for judgment are required. I am told that none is required. I would merely point out that the defendant raised a number of defences based on the defendant's interpretation of the Civil Liability Act 2002. As far as the defence under s 5D is concerned, I merely refer to the decision of The Nominal Defendant v Hawkins which I cited yesterday, in particular [11] in the reasons of Hodgson JA."
3. Paragraph 11 of Nominal Defendant v Hawkins [2011] NSWCA 93 contains the definitions of "injury" and "motor accident". If his Honour is to be taken to be referring to the consideration in Hodgson JA's reasons at [32]-[44], which his Honour had cited at [178]-[180] (during the morning of the third day on which his Honour's reasons were delivered), then it remains the case that those passages do not deal with s 5D and it remains unexplained how his Honour applied that analysis. On the findings of the primary judge it is not possible to determine the speed of the appellants' vehicle that the respondent or his horse may have perceived as "excessive" or a "threat". At the time of the incident, the horse was walking along its regular route next to Cooramin Street. The incident occurred in a 50 km per hour zone. Just past the area where the incident occurred is an 80 km per hour zone. The horse regularly walked in that area and was regularly passed by cars driving at that speed. The 50 km per hour speed limit where the incident occurred was adjacent to residential development on the outskirts of north Wagga Wagga. There was no evidence that the lower speed limit in the area where the incident occurred had anything to do with equine safety.
4. The horse was "traffic broke" and "good near cars". It was not apparently concerned by being passed in reasonably close proximity by trucks. The primary judge did not grapple with any of these issues or make any finding about the speed at which the second appellant could have driven without the horse reacting in this way.
5. So far as the lateral separation distance issue was concerned, it will be recalled that the primary judge found that to be a distance of five metres. It is also noteworthy that the appellants' vehicle was approaching on the other side of the road on a clear day at an angle to the horse which gave it a clear line of sight for about 300 metres. Again, the primary judge did not grapple at all with the evidence that the horse was used to walking on roads with traffic going at much greater speeds and in much closer proximity than the second appellant (even accepting the finding of the second appellant driving at 60 to 70 km per hour which, as I have found, was not a factual finding that was open on the evidence).
6. I have already found, in relation to the speed issue, that the "expert" opinion of Mr Doughty about his belief that the horse may have "perceived" the appellants' vehicle as a "sudden threat" and bucked in an attempt to "escape" that "threat" was not based on his training, study or experience. That evidence should have been rejected by the primary judge as inadmissible: s 79 Evidence Act. On any view that evidence was not capable of proving the necessary "but for" causation.
7. The respondent did not prove that "but for" the speed and proximity of the appellants' vehicle the horse would not have reacted as it did.
8. In addition, by reason of the failure of the primary judge properly to identify the risk of harm and duty of care here engaged this may be a case where issues would need to be grappled with under s 5D(1)(b) of the Civil Liability Act. Given my conclusion about factual causation, it is unnecessary to address this issue further.
9. Grounds 1-5 of the notice of appeal should be upheld.

Notice of contention and grounds 6 and 12 of the notice of appeal

1. The parties addressed these issues together and, as will become apparent, were correct to do so. Ground 6 of the notice of appeal provided that the primary judge erred in finding that the respondent's injury was caused by a "motor accident" as defined and, accordingly, all the respondent's claims under the MACA must fail. Ground 12 stated that his Honour erred in finding (if his Honour did so find) that the incident was a "blameless motor accident".
2. The notice of contention stated that, in the event that the Court found that the primary judge erred in relation to negligence but that the injuries were nevertheless caused as a result of a motor accident, the respondent is entitled to a judgment against the appellants on the basis that his injuries resulted from a blameless motor accident within the meaning of Div 1, Part 1.2 of the MACA.
3. The appellants submitted that even if the respondent's injuries were caused by a "motor accident" and there was no negligence on the second appellant's part, the accident was caused by the fault of an "other person", namely the respondent, and thus could not be a "blameless motor accident". The parties were divided about whether this Court in Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 had decided that proof of contributory negligence was or was not proof that the accident was caused by the respondent's negligence or any other tort.

Respondent's submissions - "motor accident"

1. The respondent submitted that the primary judge correctly held that there was "a very substantive causative role" between the use or operation of the appellants' motor vehicle and the injuries sustained by the respondent.
2. The respondent submitted that the speed of the vehicle and its proximity to the horse, were both functions of the second appellant's manner of driving, and without those factors, the respondent's injuries would not have occurred.

Appellants' submissions - "motor accident"

1. The appellants submitted that the primary judge erred in finding that the respondent's injuries were caused by a "motor accident" and thus that the accident cannot be characterised as a "blameless motor accident".
2. The appellants argued that the mere fact that the appellants' motor vehicle was passing or had just passed the horse when it began to buck is insufficient to establish that the incident "involved" the use or operation of the vehicle.
3. Further, the appellants submitted that even if the appellants' vehicle was somehow "involved" in an accident, in that its mere presence affected the horse, the respondent failed to establish that the injury was a result of the "driving" of the vehicle by the second appellant or a "dangerous situation" caused by the second appellant's driving of the vehicle.

Respondent's submissions - was the accident caused by another person?

1. The respondent submitted that the primary judge's finding of contributory negligence did not provide proof that the accident was caused by the respondent's negligence or any other tort. It was submitted that this Court in Axiak v Ingram had so concluded in a way indistinguishable from the present case.

Appellants' submissions - was the accident caused by another person?

1. The appellant submitted that in Axiak v Ingram this Court held only that a pedestrian who suffers injury in a motor accident cannot be at "fault" under s 3 as he or she owes no duty to motorists and thus cannot be the "other person" in s 7A of the MACA. Here, the respondent was riding a horse adjacent to a public road way and as such owed a duty of care to other road users. The primary judge's finding of contributory negligence necessarily involved a finding of tortious liability: s 5R Civil Liability Act (which also applies to the MACA). Thus, it was submitted, the "blameless motor accident" provisions could not apply for this additional reason.

Consideration of notice of contention and grounds 6 and 12 of the notice of appeal

1. It was common ground that the use or operation of the vehicle had to have a "very substantial causative role" in the accident for it to fall within the definition of a "motor accident" in s 3 of the MACA: Nominal Defendant v Hawkins at [33] per Hodgson JA.
2. The primary judge did not give separate consideration to the question whether this was a "blameless motor accident" under s 7A of the MACA. The appellants' submission that the primary judge erred in finding that the respondent's injuries were caused by a "motor accident" should be upheld.
3. I have set out above at [44]-[64] the evidence about the speed of the vehicle as it passed the respondent and his horse. The primary judge erred in concluding that the speed of the vehicle as it passed the respondent and his horse was 60 to 70 km per hour.
4. For the purposes of the notice of contention, senior counsel for the respondent did not rely upon the findings about proximity to support a submission that this was a "blameless motor accident". He was correct to do so. The finding about proximity was glaringly improbable and not based on any evidence, lay or expert, and should be rejected.
5. Senior counsel for the respondent accepted that if the Court were to conclude that the speed of the appellants' vehicle at the time it passed the respondent and his horse was no more than 40 km per hour it followed that the respondent had not proven that the present was a "motor accident" as defined. This was because the appellants' case about the "cause" of the accident was put on the basis that it was highly improbable that the horse would have reacted in the way that it did to a passing car travelling at only 40 km per hour. This was the effect of the respondent's evidence and that of Mr Doughty, which I have set out at [52]-[55] above.
6. That concession was correctly made. The only way in which the respondent sought to demonstrate that the use or operation of the vehicle had a "very substantial causative role" in the accident was to rely upon a speed well in excess of 40 km per hour being the speed of the vehicle as it passed the respondent and his horse.
7. His Honour erred in making the finding about the speed of the vehicle that he did. The weight of the evidence I have discussed above was in favour of a finding that the vehicle was only travelling at 40 km per hour when it passed the respondent and his horse. It is unnecessary to decide whether that finding should be made in this Court. That is because, even assuming that the vehicle was travelling at 60 to 70 km per hour when it passed the respondent and his horse, the respondent nevertheless failed to prove that the use or operation of the vehicle had a "very substantial causative role" in the accident.
8. I have addressed factual causation under s 5D(1)(a) above at [86]-[94]. As I have said, on the findings of the primary judge it is not possible to determine the speed at which the respondent's horse may have perceived the appellants' vehicle as "excessive" or a "threat". The horse regularly walked on this road, close to traffic travelling at 80 km per hour and above. The respondent did not prove that "but for" the speed of the appellants' vehicle on this occasion the horse would not have reacted as it did. Cars travelling at greater speeds and in closer proximity than the appellants' car had not caused the horse to react adversely on its regular walks on this very road. Other than bare assertion by the respondent and inadmissible speculation by Mr Doughty there was no evidence that the speed of the appellants' vehicle had anything to do with the horse's reaction on this occasion. The failure by the respondent to prove factual causation has consequences. The injury caused to the respondent was not proven to be caused as a result of a "motor accident" as defined in s 3 of the MACA.
9. The appellant's fall back submission, that the accident was caused by the fault of an "other person" within the meaning of s 7A, raises difficult issues. In particular, the issue of exactly what Axiak v Ingram decided should in my view await a case in which that issue is determinative.

Notice of cross-appeal

1. The notice of cross-appeal was abandoned by senior counsel for the respondent at the hearing. The notice of cross-appeal must be dismissed with costs.

Conclusion and orders

1. For the foregoing reasons the appeal should be allowed. I propose the following orders: 1. Appeal allowed. 2. Set aside the orders of the primary judge of 26 May 2016 and in lieu thereof make the following orders: 1. amended statement of claim dismissed; 2. respondent to pay the appellants' costs as agreed or assessed. 1. Respondent to pay the appellants' costs of the appeal as agreed or assessed. 2. Notice of cross-appeal dismissed with costs.

Endnotes

1. Hobbs v Fairall [2016] NSWDC 116 (at [271]).
2. See Liability Act, s 3B(2)(a).
3. Primary judgment (at [276]).

Amendments 18 April 2017 - Typographical corrections made in [27], [31], [88], [95] and [105]. 20 April 2017 - duplicate heading removed 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 2017