1 HEYDON JA: This is an application by way of summons for leave to appeal filed on 28 August 2001 against a verdict given and orders made by Patten DCJ on 10 May 2001.
2 The plaintiff suffered injuries to her left hand on 17 February 1998 which were of sufficient severity to cause the trial judge to conclude that she was entitled to damages in the sum of $93,420. There is no challenge to quantum but only to the trial judge's conclusions as to liability and contributory negligence.
3 The plaintiff's husband was employed by Mrs Gleeson (whom I will refer to as the defendant) and her husband as a caretaker of a rural property owned by them, one of the activities on which related to race horses.
4 The trial judge accepted the plaintiff as an honest and reliable witness. He also apparently accepted as honest and reliable the evidence of Mr Robert Fuller who was also employed to train race horses for the Gleesons. The judge quoted paragraphs 6 to 12 of Mr Fuller's affidavit. Mr Fuller was not cross-examined and no evidence was called to contradict what he said.
5 One of the points that emerged from Mr Fuller's affidavit was that a horse called "Illegal Legend" had proved very difficult to handle and Mr Fuller gave instances of its bad behaviour. Mr Fuller recorded that shortly after he took charge of training it he gave a direction to all of the people on the property that no-one was to handle the horse except under his strict supervision.
6 Another important aspect of Mr Fuller's evidence related to the way in which horses should be drenched. This aspect of his evidence is important because the plaintiff's injury occurred while the horse was being drenched. Mr Fuller said that one should rarely tether a horse when it is being drenched or treated in a similar way. He gave two reasons for that. The first was that a horse which is tethered and feels that it cannot escape while being drenched can react quite violently. The second, which is perhaps irrelevant to the trial judge's reasoning, was that the horse might injure itself in trying to pull away while being tethered.
7 The injury happened when Mrs Gleeson was drenching the horse. The horse was tethered so that it was about two metres away from a fence. The plaintiff was standing outside the fence. When Mrs Gleeson put the drench gun in the horse's mouth, the horse reacted violently. The plaintiff was not able to give a precise and clear account of how she came to suffer her injury but the trial judge found that in the course of the horse's reaction the rope tethering it to the gate caught the plaintiff's hand and forced it through the wire resulting in the injury for which she recovered damages. Mr Fuller said that Mrs Gleeson ought to have ensured that anyone nearby was "out of harm's way". He also said that a safer way to drench the horse would have been to drench it in the middle of the yard untethered ensuring that no-one was nearby.
8 The claimant, Mrs Gleeson, structured her submissions around a number of particular heads. The first was that the risk of the injury was not foreseeable. The second was that given if, contrary to the first submission it was foreseeable, the magnitude of the risk was so low that it did not require a response from Mrs Gleeson other than that which she offered. In short Mrs Gleeson contended that no duty was owed but that if one was owed it was not breached.
9 Some attention was rightly paid to the particular circumstances of the accident, especially in relation to the existence of a duty. The trial judge made a finding that Mrs Gleeson as an owner of the horse was aware of its propensities as described by Mr Fuller: that finding was attacked. In my opinion on the evidence that finding can be supported as being more probable than not. In particular there is the evidence of Mr Fuller in paragraph 7 of his affidavit that his impressions of the horse caused him to give a direction that no-one was to handle it accept under his supervision and as has been indicated that evidence was not either contradicted or cross-examined on. Even apart from that evidence it seems quite probable that in the small world of the property on which the accident happened the misbehaviour of particular animals would be well known to everyone involved in working on it, including Mrs Gleeson, one of the horse's owners.
10 Another factual element to which attention was directed was whether the defendant knew that the plaintiff's hand was resting on a wire near the gate just before the drenching commenced. There is distinct evidence that the plaintiff and the defendant had had a conversation just before the drenching began. The plaintiff did admit in answer to a question which may or may not have been rejected that the defendant was not in a position to see where her hand was. The trial judge found that given Mrs Gleeson's knowledge of the horse's propensities it was foreseeable that it would react to the drenching in a way which posed a danger to persons standing at the gate and resting a hand upon it as the plaintiff was.
11 Whether or not in that passage and in passages adjacent to it the trial judge was intending to conclude that Mrs Gleeson was actually aware of the position of the plaintiff's hand is not entirely clear. But whether or not he was endeavouring to express that view, it was open to him to conclude that it was foreseeable that there would be an injury to the plaintiff in that fashion because the defendant unquestionably knew where the plaintiff was, if the plaintiff was standing where she was her hand was near the gate.
12 In my opinion the trial judge's conclusion that there was a foreseeable risk of injury and in particular a reasonably foreseeable risk of injury is not open to successful attack. It was common ground that if injury was reasonably foreseeable there was a duty of care.
13 The defendant contended that the response of the defendant was reasonable. In particular she said it was sufficient to have ensured that there was a secured gate between the defendant and the horse on one side of the fence and the plaintiff on the other side.
14 In view of Mr Fuller's evidence, which is not implausible in the light of the general understanding of country people about the behaviour of and strength of horses, the response of the defendant did not fully comply with the duty resting on her. As Mr Fuller said, either the horse could have been drenched in the centre of the yard or the plaintiff could have been asked to move further back.
15 Some of the argument, and this is not entirely the doing of counsel for the claimant, turned on the notion of warning. The trial judge actually held that the defendant had readily available to her a means of avoiding the danger by "requesting" the plaintiff to move away from the gate. In the circumstances where the plaintiff's husband was an employee of the defendants, where the defendant was the owner of the horse and where the defendant and her husband were the owners of the relevant land, the trial judge's use of the word "requesting" suggests, correctly, that if the defendant had given an order, for practical purposes the plaintiff would have had to have complied with and would have complied with it. In consequence the trial judge's conclusion that there was a breach of duty is not open to attack.
16 The claimant complained that the law required the plaintiff to give evidence that she would have heeded any warning or request before an allegation of failure to warn can be made out. In my judgment that is not the law. It is open to a court to infer from particular evidence that a warning or a request would have been complied with and were it necessary to approach the case on that basis it is reasonable to infer that any request would have been complied with.
17 The submissions of the claimant in relation to contributory negligence were that the plaintiff was wary of horses, was frightened of them and did not like them and in those circumstances should have stayed well clear of them and not put herself in a position of risk. I would not accept that those submissions demonstrate any error in the trial judge's conclusion that the plaintiff was not guilty of contributory negligence. That conclusion was based on the proposition that the plaintiff had no particular knowledge of horses or of the propensities of "Illegal Legend".
18 The claimant did attack the suggestion that plaintiff did not know about the propensities of "Illegal Legend" by reference to paragraph 7 of Mr Fuller's affidavit. However, when Mr Fuller spoke of the direction to all of the people on the property it seems unlikely that he was intending to include the wife of an employee as distinct from persons with working activities to carry out on the property.
19 I would dismiss the summons for leave to appeal and would order the claimant to pay the costs of the opponent.
20 MASON P: I agree.
21 BEAZLEY JA: I agree.
22 MASON P: Leave refused, summons dismissed with costs.