Hobbs v Fairall & Fairall

District Court of NSW|2016-05-06

Ex tempore

HIS HONOUR: The plaintiff, Mr Anthony Hobbs, of Cartwrights Hill, a northern suburb of Wagga Wagga, brings an action for damages for personal injuries sustained by him on 24 September 2011 when he was thrown from a horse he was riding beside the carriageway of Cooramin Street, Cartwrights Hill. The plaintiff alleges that the negligence of the second defendant, Ms Holly Lee Fairall, caused his horse to throw him from the saddle onto the kerbing and guttering on the north side of Cooramin Street. The second defendant was driving a motor vehicle, registered number BE 71 NA. That vehicle was owned by the first defendant, Mrs Carolyn Maree Fairall, the mother of the second defendant. The plaintiff alleges that the circumstances of his suffering personal injury were a "motor accident" as that term is defined in the Motor Accidents Compensation Act 1999 (MACA) and that his claim for damages is governed by the provisions of that Act. The plaintiff says in the event that the Court is not satisfied that the injuries that he sustained were caused by the fault of the second defendant, for which the first defendant is by statute vicariously liable, then he was the victim of a "blameless motor accident" as that term is defined in MACA.
To understand the case it is necessary to consider a number of matters in advance of considering liability. Those matters are the plaintiff's background; the background of the horse that he was riding at the time, a horse known as Buck; the background of the second defendant (but only briefly); the nature of the motor vehicle which she was driving and the topography of Cooramin Street, which is quite important in determining issues concerning liability. I need to discuss the background of the plaintiff in any event when assessing damages, which I am required to assess whether the plaintiff be successful in his claim or not.

The plaintiff's background

The plaintiff was born in the United Kingdom on 30 November 1946. At the current time he is 69 years old. In or around 1952, the plaintiff emigrated with his family to Australia but the plaintiff and his family only stayed in this country for a brief period. They then crossed the Tasman Sea and settled in New Zealand. The plaintiff was educated at schools in both Rotorua and Auckland. In mid-1961, he left school at the age of 14 and a half years. Whether he gained the then New Zealand equivalent of the then New South Wales Intermediate Certificate has not been disclosed. The plaintiff told me that he was an "average" student. The plaintiff then took up working in dairy farms. He worked on three different dairy farms, one of them he identified as being at Mattamatta. His work on the dairy farms involved his milking the cows twice daily, harvesting, making sod, fencing and general maintenance work. He rode a horse on the dairy farms to round up errant stock for the morning and evening milking sessions. In addition to that work, the plaintiff did a little contract fencing work in New Zealand.
In late 1966, when he would have been approximately 20 years old, the plaintiff came to Australia with a friend he described as his "mate". They travelled to North Queensland and became stockmen at Mt Ravensworth station, which was on the road between Townsville and Charters Towers. The plaintiff described the Mt Ravensworth station as being a couple of hundred square miles on the Burdekin River. The plaintiff worked at the Mount Ravensworth station for eight months. As a stockman, he rode horses. He and his mate then went to the Mt Isa mines, where he worked as an underground miner for a little over two years. The reason to undertake underground mining work was to earn more money than could be earned as a stockman. However, the plaintiff preferred life as a stockman. In late 1969 he returned to work as a stockman. He worked on a large number of stations in the Gulf country of North Queensland, and on one station in the Northern Territory. The stations in the Gulf country were on average 1,200 square miles; the one in the Northern Territory was 3,000 square miles. All of his work as a stockman was on horseback. Essentially, he was mustering cattle and driving them. He liked the work. He did not have his own horse, but used horses provided at each station by the station owner or manager. During the period from 1969 to 1976, a period of at least six years, the plaintiff was employed full-time as a stockman. He rode many different horses and acquired many skills, both as a horseman and in dealing with cattle.
In 1975, he travelled to Tumbarumba to compete in a rodeo. At the Tumbarumba rodeo, he met a young lady from Wagga Wagga, who is identified in the evidence merely as Kathryn. In 1976 he moved to Wagga Wagga where Kathryn was living, obviously to court her. The couple were married on 26 November 1977. The plaintiff was then 31 years old. The plaintiff's marriage to Kathryn remains intact. Mrs Kathryn Hobbs gave evidence concerning quantum in the plaintiff's case.
When he arrived in Wagga, the plaintiff found work at the Wagga stockyards in Travers Street, in horse sales. He was introduced to a firm of local builders known as Baker Bros. He joined their business as a builder's labourer. However, he rapidly picked up the skills of carpentry and he referred to himself as an "adult carpenter", a man who was a practical carpenter but did not serve any apprenticeship or gain any certificate to prove that he was a carpenter. On 30 July 1980 the couple's first son, Jordan, was born.
In 1981, the plaintiff started to work in road construction. He worked on a number of road construction projects. The first one was on the Federal Highway at Collector. Later he was to work on projects on the Hume Highway at Gundagai, Coolac and Kyeamba. He also worked on that Highway, north of Gundagai, near the "Dog on the Tuckerbox". A second son, David, was born on 26 April 1982 and a daughter, Jemma, was born on 6 April 1987.
In January 1990, the plaintiff commenced to work at the Charles Sturt University in Wagga Wagga as a construction labourer and later as a carpenter. He worked for the University until taking work with a firm known as Peyton (? Paton) Seibles because work had run out at the University. The plaintiff worked for Peyton Seibles as a construction carpenter for one year between April 1996 and April 1997. The plaintiff then returned to the University to work again as a carpenter. There was again work available at the University.
In May 1998, the plaintiff moved from the construction group at the University to what is known as the Division of Facilities Management. He worked as a janitor, caring for university buildings. The reason the plaintiff took that transfer was to remain in the employment of the University and, in particular, to grow his superannuation account.
Since moving to Wagga Wagga, the plaintiff had kept up his interest in horses. He owned his own horses and rode them regularly. His children were also interested in horses. He went to gymkhanas and rodeos and other horse shows with his children. The other horse shows were described as "Bushman's type horse activities". Involved in those was team pinning. He maintained that even when he wasn't working with horses, he was still regularly riding them. He was not cross-examined about that and that appears to be a datum in this case.
In either late 2007 or early 2008, the plaintiff applied for an advertised vacancy in the School of Animal and Veterinary Science. The advertisement called for expressions of interest from those who had a lot of experience with horses and other large animals. The job itself was called "Technical Assistant (Cattle)". The plaintiff was interviewed for this job. It appears that the interviewing panel comprised of four persons, Professor Kim Abbott, the Head of the School of Animal and Veterinary Science, Mr (now Professor) Peter Chenoweth, Ms Heather Ip, an equine lecturer, and another lady described by the plaintiff as a "lass" from the Human Resources area of the University.
Evidence about the interview was given by Professor Chenoweth by audio link. At the time of giving evidence, Professor Chenoweth was the Head of the School of Veterinary Sciences at James Cook University in Townsville. Professor Chenoweth thought the panel comprised only two people, Professor Abbott and himself, but the evidence of the plaintiff tells me that there were four. I can understand Professor Chenoweth only considering the two more senior people at the meeting, his immediate superior and himself. Professor Chenoweth said this about the position for which the plaintiff had applied: "We were looking for someone who was proficient in handling large animals, cattle and horses would come into that because the job involved not only getting animals ready for practical classes but also working with students, some of whom were not very experienced, with large animals. So the applicant not only had to be patently competent in those skills but also we were looking for someone who could relate well to students and interact with both students and staff appropriately." At the time of the interview the plaintiff was aged 61. The question of the plaintiff's age was raised and that remained in Professor Chenoweth's mind because he thought that Professor Abbott, who raised the question, may have been "politically incorrect" in raising such a matter. Professor Chenoweth gave this evidence: "Q. During the interview process, did either you or Professor Abbott raise with the plaintiff the fact that he was by then 61 years old and may not have had a lot of time left to be working at the university? A. Professor Abbott raised that point. I can't remember exactly the words but it imprinted itself on my memory because I had this feeling that that was not politically correct of him to ask that question." The Professor then went on to give this explanation of what the plaintiff said at the interview about his age: "..this job was something that he really aspired to and that he was very excited or interested in it and he was not thinking about retiring. In fact, he was going to work until at least 70." That is also the evidence of the plaintiff himself. It is clear from Professor Chenoweth's evidence that he and Professor Abbott were quite impressed with the plaintiff's application and he was awarded the position on 26 May 2008.
The plaintiff performed very well in the role of "Technical Assistant (Cattle)". When he commenced that work he was level 3, step 1, in the University employee hierarchy and when he finished up he was level 4, step 4, that is, he progressed eight steps during the period that he had this job. The plaintiff gave this evidence about his work as the Technical Assistant at the University: "Q. What did your job involve? A. My job involved a technical assistant working under another technical officer looking after all the cattle on the place and assisting students with their lessons, preparing the cattle, preparing the labs for the job, it may be A1, brake testing, cattle handling, even mustering cattle, doing their feet, Caesar bracket. Q. Was there a fair bit of job done on horseback? A. I did the Caesar cows on horseback, when I brought them in, in the morning because they were a little bit waspy, if you know what I mean, they're a little bit touchy, they've got young calves at foot and they can have a go at you, so on the horse I could just up them around a lot easier, sir. Q. Did you have some role instructing students as to how to deal with large animals safely? A. Yes, sir. Q. Was that a significant part of your job? A. It was, and I was really proud of bringing them through." The plaintiff went on to say that there were a number of students from the city who had no experience of horses and cattle and it gave him immense pleasure to train them to deal with large animals and that training was often done by practical means rather than mere lecturing. In cross-examination the plaintiff told me that the cattle at the University were Black Angus cattle and he again referred to them as being "very waspy animals." I know from a history given by the plaintiff to Dr ALG Smith, who was qualified by the defendants' solicitor, that there were 500 Black Angus cattle at the Charles Sturt University.
The plaintiff won awards from the University administration. He was given what was known as the Vice Chancellor's Innovation Award. He described that in this fashion: "We […] had our back to the wall, the School was going to be officially opened […] a diagnostic lab it was, and they had to have a way of getting rid of the body parts and guts and stuff like that [of animals] and they wanted to spend $80,000 or $90,000 on a tractor and specials bins and I designed something that only cost them $1,800 and that's how I got it." The prize was a cash award of $5,000. The plaintiff spent that money on furthering his University interests. He went to the University of Colorado and visited their veterinary school and he also attended, whilst in Colorado, the Denver Livestock Show. He told me that he wished to get a student exchange program going between the Colorado State University and the Charles Sturt University. For that purpose he had an interview with the Dean of Agriculture at the University of Colorado and a long talk with him.
On one occasion the plaintiff was trusted enough in his work as a Technical Assistant to be given "the cheque book" and sent to buy stud bulls for the University and on another occasion he took at meat judging team up to Armidale to visit the New England University for a week. He was put in charge of students at the meat judging challenge or activity at the UNE.
The plaintiff was still working as a Technical Assistant (Cattle) at the time that he was injured. It is important to note that the plaintiff was still an active horse rider in his work at the Charles Sturt University and had been for over three years prior to the accident now in question. In addition to working with horses involved in his work with cattle at the University since May 2008, the plaintiff maintained out of work hours his interest in horses, and had his own horses at his home which he continued to ride for pleasure.

The plaintiff's property

When the plaintiff first moved to Wagga Wagga, and took work with Baker Brothers, he built himself a home in the suburb of Forest Hill. However, he desired a bigger property because of his interest and his children's interest in horses, so he sold that property and bought the property in which he was living at the time of the accident now in question, the property known as 88 Bomen Road, Cartwrights Hill. The property at Cartwrights Hill is of seven acres. It is divided into seven paddocks, each of an acre. On one of those paddocks the plaintiff built his house and stables. He also built on the property cattle yards and the necessary fencing. An equestrian arena was also constructed. In addition to keeping horses on the property the plaintiff also ran ten sheep, which he described by their sex as ewes.
The plaintiff said that the soil of his property was "not a good soil. A sandy soil." He described it by standards of the local area as "average. Not good." He described the pasture as being mainly couch grass, which covered ninety per cent of the pasture, but there was a "sprinkling of clover in there and a sprinkling of dry lucerne".

The plaintiff's horse

The horse the plaintiff was riding at the time of the accident was known as "Buck". That name did not refer to any propensity or predilection of the horse, but rather to its colour, which was buckskin. The plaintiff told me that he purchased Buck about seven months prior to the accident, which indicates late February 2011. According to [12] of exhibit 1, the expert report of Mr Steven Jefferys, the purchase price for Buck was $1,200. Annexed to Mr Stevens' report are letters of instructions. One of those is a letter from the defendants' solicitors to the plaintiff's solicitors, bearing date 22 March 2016, and a further letter requesting further particulars of 1 April 2016, and the reply of the plaintiff's solicitors to both the earlier requests, which letter bears the date 4 April 2016. Much of what is stated by Mr Stevens in his report is taken from the letter of Walsh and Blair of 4 April 2016 providing the particulars. The letter of particulars tells me two things about Buck, which were not given in evidence but they appear to be uncontroversial. The first was that Buck was an Australian stock horse, and the second was that he was a gelding. Were Buck not a gelding, but intact, then I would expect that the plaintiff would have been cross-examined about that because it might indicate that Buck was not as docile as the evidence otherwise suggests.
Buck was aged eight or nine years old. That evidence was given not by the plaintiff but by Mr Hunter Doughty, a lecturer in equine science at the Charles Sturt University, who was qualified to give expert evidence by the plaintiff's solicitors, but also knew Buck from his days as being a horse owned by the University. The evidence concerning Buck's age can be found at T218.33 to T218.47. Prior to buying Buck, the plaintiff had a bay mare, as well as a horse that belonged to his daughter on his property. The evidence establishes that the first owner of Buck was Mr Larry Stevens, who was a polocrosse player. Next to the plaintiff's property was a reserve where polocrosse carnivals were held and at such a carnival, the plaintiff first saw Buck. The plaintiff discussed Buck with Mr Stevens who told him that he was a "good horse". Buck then passed into the possession of the Charles Sturt University. The plaintiff gave this evidence of what he'd seen Buck doing when he was owned by the University: "Q. What had you seen him doing? A. I'd see him used as a lead, as they call, a lead pony for breaking in young horses. I'd seen students riding him and one of the employees at the university gave me and another girl a hand to bring some cattle back from Currawarna and he used [him] as a droving horse that particular trip." This was a cattle drive of 18 miles from Currawarna to the University campus at Wagga Wagga along the road along the river, between Narrandera and Wagga Wagga. The plaintiff has said that on that cattle drive there was traffic and trucks carrying Millgrey gravel. On that cattle drive, a dirt bike was also used by one of the stockmen and the plaintiff observed Buck not being worried by the noise generated by the dirt bike. That evidence can be found at T151 to T153.
In cross-examination, the plaintiff gave this evidence of Buck's workload at the University: "Q. I just want you to make a comparison between what the horse used to do when he was being worked by the university and what the horse used to do the eight months that you owned it? A. The horse at university was used as a lead only and a breaking-in pony in those routines. When I had the horse, it was used more as a pleasure horse, but as I said I did a fair bit of work on him. HIS HONOUR Q. How frequently would the university have broken in horses? A. They had a program of breaking in once a year, your Honour. Q. How long did the program last? A. Over a period of about, it would be six weeks. Q. That six week period was that in spring or autumn or mid-summer or? A. No, they usually sort of did it in the autumn time." Later on the plaintiff said that the horses were broken-in when they were 18 months old. The cross-examination was again taken up by Mr Wilson and the plaintiff gave this evidence: "Q. As a lead pony, he would be quite active during the day wouldn't he? A. He would have been busy. Q. Very busy? A. I wouldn't say very busy, but busy. Q. Well, he would have been used to be teaching students and that sort of thing wouldn't he? A. Yes, in periods of time, yes. Q. Would that involve trotting or cantering during the day? A. When he was a lead pony, he was mainly trotting in small yards, quite confined yards and then later on a bit out he'd be with them, but mainly walking with them. Q. Would the trotting in the small yards that could be for a considerable period of time though couldn't it? A. Probably, probably about ten minutes per horse, there might have been three horses or four horses that they were working at. Q. But there would be multiple lessons during the day wouldn't there? A. No, that would be about it, they didn't break a lot of horses in. Q. What I'm suggesting to you is that once you owned Buck he was far less active than when he was being used by the University, do you agree or disagree with that? A. I don't really agree with that. Q. Do you agree that he was less active though when he was owned by you? A. I rode him a lot, no, I don't, I don't agree with that, I reckon I rode him a lot." The evidence given by the plaintiff about the workload of Buck at the University is corroborated by evidence given by Mr Doughty. That evidence can be found at T224.25 and T245.24.
Before the plaintiff actually acquired Buck he had a trial ownership. The evidence about that is: "Q. Before you bought him did you in fact ride him for a while? A. I rode him in an arena over at the uni, trotted and cantered him, and put him over a couple of little jumps and I bought him with the intention of having a trial. So I had him for I don't know totalling a month just riding him and then I'll pay for him. Q. So you had about a month before you decided to actually pay the money? A. Yeah yeah." Whether that month was before late February 2011 or at the commencement of late February 2011 is unclear.
The plaintiff bought the horse because he liked him and he was well behaved. Earlier in his evidence the plaintiff said this about Buck: "He was the type of horse that I liked physically for a start. Good big strong horse I also liked the way he went about his job. I like - I like [a] horse like that." The plaintiff said that prior to purchasing Buck he had never seen him misbehave and, indeed, he never misbehaved whilst he was owned by the plaintiff prior to 24 September 2011.
After acquiring Buck the plaintiff kept Buck on a paddock at his property but he was rotated through the paddocks once he had grazed the pasture on one paddock down. The plaintiff rode him three or four days a week. The plaintiff's routine was to ride sometimes in the morning and sometimes in the afternoon depending on the time of the year and whether it was a weekend or not. On weekends he would ride in the morning, in summer he would ride after work and in winter he would normally also ride after work. The first thing to do was to "catch the horse" from the paddock in which he was accommodated. If it were winter and Buck was wearing a rug the rug would be removed and Buck would be led to the stables where he would be groomed and a bridle would then be put in place. The plaintiff then took the horse to the horse arena on his property and had him trot around for between four and a half dozen times. The plaintiff would then adjust the girth on the saddle to tighten it and then he would mount and they would leave the property at a walk.
The plaintiff gave this evidence as to the route that might be taken: "I'd walk him 'til I got down probably at the first gate over in the sale yard paddock or if I was walking around the stock routes or around through Cartwrights Hill I'd walk him to about East Street and then I'd walk down Cooramin Street or I went down to the pony club - I'd walk him down there and then when I got across on some good country I'd start trotting him and I'd trot him for probably 20 or 30 minutes." The plaintiff then said that he would sometimes ride the horse through the North Wagga Wagga Caravan Park. The inference I drew from that evidence is that the plaintiff had at least four different routes upon which he would take Buck for rides. Appendix 6 to Mr Steven Jefferys' report, exhibit 1, is a Google map showing the location of the plaintiff's property at 88 Bomen Street, Cartwrights Hill. Bomen Road leads from the Olympic Highway into the industrial area of Bomen. At the other end of Bomen Road lies the Main Southern railway line and there is a railway station at Bomen. A large parcel of land at the end of Bomen Road adjoining the railway line contains the local abattoir. North of Bomen Road, the abattoir and railway station is an area described as the "Livestock Marketing Centre" which is clearly a reference to the local stockyards. To go to the saleyards would require the plaintiff to ride Buck north. To go down Cooramin Street would require the plaintiff to go south and west. To go down East street would require the plaintiff to ride south. The North Wagga Wagga Caravan Park is clearly at North Wagga Wagga which is on the northern bank of the Murrumbidgee River, the main city of Wagga Wagga being on the southern bank of the river. Neither the evidence nor the map that I have used discloses where the local pony club is. However, it does not appear to have been on the route that the plaintiff took on the day of the accident. In his evidence-in-chief the plaintiff said that he liked to ride for at least two or two and a half hours. In cross-examination the plaintiff conceded that he may have instructed his solicitors that the rides that he took with Buck could have been between one and two hours but he maintained that it was more like two hours than one hour. One can accept that each ride that the plaintiff took Buck on lasted about two hours.
The plaintiff had no difficulty controlling Buck on any of these rides and he had never misbehaved, that is, bucked or pig rooted. The plaintiff himself thought that Buck had never been upset by traffic and he was a "well-educated" horse. Evidence was given by Mr Doughty to the effect that he considered Buck to have been traffic trained and that corroborative evidence can be found at T219.11 to T219.22. Buck stood 15.3 hands tall. In my view nothing turns much on Buck's height because, as far as Mr Jefferys was concerned, and he has vast experience with horses, the eyes of a horse are roughly at the same height as those of an adult human. Evidence concerning Buck's height can be found at T106.29, T180 and T207.21.
The question of Buck's food intake needs also to be considered. As I have earlier mentioned, the plaintiff gave evidence that Buck was able to graze on the one acre paddock where he was left in between rides. In addition, the plaintiff fed to Buck what he described as a "biscuit" of lucerne each night. The size of the biscuit was the size of a small bale of hay, with a depth of some three inches. This was then turned into metrics of a bale an area of 450 or 500mm square, with a depth of 75mm. The plaintiff did not give Buck any other supplementary feed, and did not feed him with oats or corn or grain.
Evidence was given in chief by the plaintiff of his knowledge of feeding horses: "Q. No doubt, Mr Hobbs, when you were working as a professional stockman, you had to feed your horse? A: We did have to feed our horses in the stock camp. Q. Before you became a stockman, you told me you'd been riding horses since the age of eight? A. Yes, your Honour. Q. Did your routines require you generally to oversee or actually feed the horses that you are riding? A. Your Honour, when I was in New Zealand, we fed our horses hay, which is clover hay, that was when I was young, in the stock camps, a lot of them just grazed on the normal paddocks when the seasons were available, otherwise we'd feed them in nosebags, put nosebags on them with chaff in them which came from down south. I believe it to be an open chaff and they got a bit each as a substitute, but when I got down here I started feeding the horses a bit differently with lucerne and being in the uni I was learning a bit about nutritions and stuff like that, so. Q. But, when you were working as a Technical Assistant at the university with the cattle and you were riding horses, did you feed the horses or were they fed by others, the horse that you rode anyway? A. I fed my own horse, your Honour, I would take him home most of the time, but I left him at the uni, I fed him the same as I fed him at home, your Honour. Q. Were you aware that from time to time of animals having problems with digestion? A. I've seen them with colic and such diseases as that, so usually that is because they've got into something they shouldn't get into. I know the horses will fire up on grain, as I said before, your Honour. ROBERTS Q. Have you seen anything that morning [of the accident] to indicate that Buck was, to use your words, "fired up"? A. No sir."
Before leaving this topic, I should add this: the evidence discloses that the plaintiff had probably fallen off horses a dozen times in his lifetime, but the last time that such an event had occurred was in approximately 2002. The evidence on those issues can be found at T122.49 and T123.11.

The second defendant

Ms Holly Fairall was born on 3 January 1993. At the date of the accident she was 18 years old. When giving evidence she was 23 years old. She obtained her driver's licence in January 2010, very shortly after turning 17. At the time of the accident in question, she had been a licensed driver for approximately one year and nine months. She did not tell me her occupation, but I can assume she was probably in Year 12 at school. At the time of giving evidence on 5 May she was a casual secondary school teacher at the Wagga Wagga High School, teaching mainly mathematics. If she completed her secondary education at the end of 2011, she would have completed a four year university course by the end of 2015, and could well have recently commenced working as a casual high school teacher. At the time of the accident now in question, she had a provisional P2 licence ("Green Ps"). Ms Fairall had been driving the vehicle, which I shall soon describe, since January 2010.

The defendants' vehicle

The vehicle Ms Fairall was driving has been described as a 1993 Daihatsu Feroza. It was a small four wheel drive vehicle. It was white in colour. It was a manual vehicle. In her evidence, Ms Fairall described the vehicle as a "soft top" but the annexure to exhibit P, a copy of the NRMA Insurance CTP Renewal Notice, describes the vehicle as a hard top. Both those descriptions are entirely appropriate. A photograph of the vehicle in question is exhibit 2. It shows the roof over the front part of the vehicle; that is, over the driver and front seat passenger as being a hard top but the rear compartment as a soft top. That is not immediately clear from exhibit 2 but is much clearer from exhibit T, which is a photograph of a similar vehicle clearly showing a hard top at the front and a soft top over the rear compartment of the vehicle. The vehicle had four cylinders. That is the inference that I drew from the evidence she gave at T272.41. The vehicle had a central rear vision mirror and also side view mirrors attached to the sides of the driver's door and of the front passenger's door. That evidence can be found at T301.
Ms Fairall described her car as being "low powered" at T308. The plaintiff's boyfriend at the time of the accident, now her fiancé, and a passenger in the vehicle at the time of the accident, Mr Benjamin Shane Moore, described the car thus: "Q. Are you able to describe the noise of that vehicle? A. It'd be compared to a petrol engine nowadays. It was very quiet. Q. What about the power of the vehicle? A. Next to none, power. HIS HONOUR Q. When I was your age we used to call such vehicles gutless. Is that a correct description? A. Yeah, you could use those words." When discussing liability, I shall point out that much of Mr Moore's evidence was based on his opinion as to the power of the 1993 Daihatsu Feroza. The relevant evidence can be found at T367.38.

Topography

I turn now to describe the topography relevant to the accident site. Unsurprisingly the suburb of Cartwrights Hill is on top of a hill which probably has the geographic name of Cartwrights Hill. That puts the properties on Cartwrights Hill well above the flood plain of the Murrumbidgee River and hints at the poor quality of the soil at the plaintiff's residence.
The main north-south axis of the Wagga Wagga CBD comprises Baylis Street which runs north from the Sturt Highway and after crossing the lagoon is known as Fitzmaurice Street. The Wagga Wagga Court House stands on Fitzmaurice Street. At the northern end of Fitzmaurice Street is a "T" intersection. If one turns right at that T intersection, one crosses the Murrumbidgee River on the Wiradjuri Bridge.
The road from the bridge northward is Hampden Avenue. That winds through the North Wagga Wagga River Flats and then becomes the main street of the suburb of North Wagga Wagga. It then heads, basically, northwards to join Old Bomen Road which runs through Cartwrights Hill to the Bomen Road on which the plaintiff's property stands. Running parallel to Hampden Avenue on its eastern side is a street known as East Street. Like Hampden Avenue, that joins Old Bomen Road before Old Bomen Road reaches Bomen Road. Cooramin Street runs basically from east to west. Its eastern end is on East Street. It crosses Hampden Avenue and continues to run westward towards the Sturt Highway but there is a section of the straight east/west projection of Cooramin Street that has not been completed.
The only section of Cooramin Street that has been bitumenised is the section between Hampden Avenue and East Street. Equally, the only section of East Street that appears to have been bitumenised is that running northwards from its intersection with Cooramin Street to Old Bomen Road. The plaintiff's injuries occurred when he was thrown by Buck on Cooramin Street between East Street and Hampden Avenue.
A sketch map or diagram was made of the relevant section of Cooramin Street by Mr Jefferys. The original of it is exhibit 7. A copy of it attached to Mr Jefferys' report, in appendix 3, has been made smaller than exhibit 7. I have some difficulties with some of the distances stated or estimated by Mr Jefferys.
The evidence discloses two data topographically. The first datum is a tree on the northern side of Cooramin Street in front of 24 Cooramin Street, a property of which one resident was Mrs Robyn Cole. The tree in question can be seen on the extreme right of a photograph, exhibit E, and on the left of the photograph, which is exhibit X. It is common ground in these proceedings that the plaintiff was directly opposite that tree, on the other side of the bitumen, at the time that the car driven by the second defendant drove past the horse being ridden by the plaintiff. The other datum is what has been described as a pink letterbox. A photograph of that datum is exhibit Y. It is the letterbox for the property to the west of No. 24 and has on it the number 201G but would otherwise be known as 26 Cooramin Street, Cartwrights Hill. The distance from that tree to the pink letterbox was paced out at a view and is 18.5 metres. From the tree headed in the direction of the letterbox one finds at 5.5 metres from the tree a drainage hole in the kerbing, which would admit stormwater from No. 24 into the gutter and it is at that drainage hole that the plaintiff came to "rest" after he had been thrown by Buck. From that drainage hole to the pink letterbox is a further of 13 metres.
The kerbing and guttering occurs only on certain parts of the north side of Cooramin Street. That kerbing and guttering extends beyond the pink letterbox but not particularly far. Unfortunately I did not pace it out but that the kerbing and guttering extends beyond the pink letterbox is patent from exhibit Y and some of it can be made out on the extreme right hand side of exhibit H. I would estimate that that is no longer than a further 5 metres. Accordingly, on my reckoning there are 23.5 metres from the tree, that is, the accident site, to the western end of the kerbing and guttering. Mr Jefferys says that that is a distance of 20 metres.
Beyond the tree the kerbing and guttering extends to the western end of the property known as 22 Cooramin Street which has the name Booranga. The ending of the kerbing and guttering can be seen in a photograph, exhibit U. Its continuation across the front of number 22 can be seen in exhibit V. Its continuation across the front of number 24 can be seen in exhibits W and X and its continuation to the pink letterbox is shown in exhibit Y. The distance between the tree to the eastern end of the kerbing, I have paced out as 34 metres. However exhibit 7 suggests that the distance is in fact 60 metres and it is clearly inaccurate.
North of the ending of this section of kerbing and guttering is a drainage culvert. Two sets of two posts, painted white and bearing reflectors, one set on each side of the roadway, mark the position of the culvert. They are shown in exhibit A, a photograph taken from the east looking west a long way from the accident site, and are seen in exhibit 4, a photograph taken looking east along Cooramin Street from in front of No. 24. Between the two sets of posts marking the culvert, Mr Moore drew a line on exhibit 4, to the significance of which I shall, in due course, refer.
Exhibit 4 is also important as showing the continuation of Cooramin Street towards East Street, and again showing the widening of the bitumen surface of the road where there is kerbing and guttering. There appears to be another area of kerbing and guttering well east of the culvert, which is not relevant in the current proceedings. It is important to note that when one reaches the end of the eastern end of Cooramin Street, the bitumen surface makes a left-hand turn into East Street; and that if one makes a right-hand turn into East Street, one turns onto gravel road. There is a widening at the eastern end of Cooramin Street, which clearly indicates that most traffic turns left if going east along Cooramin Street or if going south along East Street, turns west into Cooramin Street. The widening also accommodates cars doing a U-turn at the eastern end of Cooramin Street.
The distance from the end of the kerbing and guttering shown on exhibit U to the culvert I paced out as being 77 metres. Accordingly from the tree given as a datum to the culvert is 111 metres. According to exhibit 7, the distance from the accident site to the intersection of Cooramin Street and Hampden Avenue is 330 metres. It is not clear that Mr Jefferys had the same accident site that the parties have agreed upon; that is, the same datum as the accident site; that is, the tree where the car and the horse passed each other. I have already pointed out that the distance that I have obtained is somewhat greater than the 20 metres stated by Mr Jefferys.
There is no dispute that there stands on Cooramin Street speed limiting signs to which I shall refer merely as "speed signs", between the end of the kerbing and guttering west of No. 24, and the intersection of Cooramin Street and Hampden Avenue. According to exhibit 7, Mr Jefferys' sketch plan, there are 110 metres between the speed signs and the commencement of the western end of the relevant kerbing and guttering, and if one adds the 20 metres estimated by Mr Jefferys between that commencement of the kerbing and guttering and the accident site a total distance of 130 metres between the accident site and the speed signs. Perhaps the appropriate distance to consider is the estimate of 110 metres between the speed signs and the commencement of the kerbing and guttering. Mr Jefferys broke that distance of 110m up to be a distance of 50 metres between the speed signs and a telegraph pole, and a further 60 metres between that telegraph pole and the commencement of the kerbing and guttering. The problem with that is that there are three telegraph poles between the tree given as the datum for the accident site and the speed signs.
The length of Cooramin Street in question is, as I earlier said, bitumenised or sealed. Other synonyms were used in the evidence, however, I shall seek to refer to the sealing as bitumen rather than tarmacadam or tar or asphalt. Mr Jefferys thought that the width of the bitumen, unless there be kerbing and guttering, was 7 metres. He thought that the width of the road where there was kerbing and guttering was extended to 10 metres, that is, that the kerbing and guttering caused there to be a width of 10 metres of bitumen. However, I paced that distance out myself in the presence of counsel and the parties and it was between 8 and 9 metres, an average 8.5 metres wide.
Mr Jefferys estimated that south of the bitumen, where there is a shoulder and then a grass verge, is 14 metres in width. However, road reservations in rural areas in this State laid out before metrification were generally 1 chain wide. A chain is a length of 22 yards or 66 feet. In metric terms a chain is 20.12 metres. I believe that is the width of the road reservation of Cooramin Street. When one looks at the photographic exhibits one can see, particularly in exhibits U, V and W, boundary fencing between the properties on the northern side of Cooramin Street and the kerbing and guttering that appears to be about 3 metres wide. If one then allows 8.5 metres for the total length of the bitumen where there is kerbing and guttering one comes to a total width of 11.5, which means that the southern side of the road reservation, that is, on the southern side of the bitumen, there is reserved a further 9 metres, roughly. There is a gravel shoulder and then a table drain and then grass. They can be seen in exhibit A and in exhibits E, F and H. At the time that this accident occurred the grass was long. All the photographs have been taken after the grass had been slashed. Exhibit G is a copy of exhibit F that was marked by the plaintiff to show to where the grass was growing at the time of this accident. That indicates a gravel shoulder of less than a metre, and then grass that on his estimate was 2 to 3 feet tall, to the boundary fence that is shown on exhibit G.

The plaintiff's description of the accident

I turn now to the plaintiff's description of the accident. He left his home on Bomen Road and walked Buck north-west along Bomen Road to its intersection with Old Bomen Road. He then walked Buck south-west down Old Bomen Road to its intersection with East Street. He then walked Buck south along East Street to its intersection with Cooramin Street and turned right into Cooramin Street. He continued walking Buck along Cooramin Street on the southern side of the bitumen within the road reservation, but keeping out of the long grass. He was riding towards Hampden Avenue. The photograph which is exhibit A is taken looking west along Cooramin street, and shows what the plaintiff would have seen prior to his reaching the culvert. One can see that further along Cooramin Street, but, after where the plaintiff's accident occurred, the road descends a slope. There is dead ground beyond the crest, which one can see in exhibit A.
Exhibit B is a photograph looking up the hill. The photographer is standing on the northern side of the bitumen looking up the hill. The speed signs are shown in exhibit B. They show that traffic travelling east, that is, towards East Street, along Cooramin Street, must reduce speed to 50 kph when it reaches the speed signs. For those travelling west along Cooramin Street, once the westward traveller reaches the speed signs, the speed limit increases to 80 kph. There is a conflict in the evidence as to how to describe the gradient of this hill. Some would have me believe it was a gentle slope; others call it steep. I would call it moderately steep. There are much steeper hills, but there are many which might be described as gentle slopes, but the hill shown in exhibit B is not a gentle slope. Once one reaches the crest that can be seen in exhibit B, there is a gentle uphill slope of but a few a degrees as the road continues eastward towards East Street.
At T66.10 the plaintiff estimated that he was riding Buck either one foot, that is, 12 inches, or 18 inches on the southern side of the bitumen, i.e. either 30 cm or 45 cm south of the bitumen.
The relevant incident occurred about 9.30am on the morning of Saturday 24 September 2011. Unfortunately ambulance records have not made their way into evidence. Such records are generally the best indication of when an incident occurred because they record the time that a call was made to 000. The best that the evidence discloses is that the incident occurred about 9.30am.
The plaintiff gave his short description of what occurred at T65.17: "I witnessed a four wheel drive, a white four wheel drive turn into Cooramin Street, it was heading up towards the first lot of sign posts that would have had a speed limit on, which I wasn't sure of at the time. 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, the white vehicle…" I have not quoted the last clause of that answer because it was objected to and that clause was not pressed by Mr Roberts SC. I trust that Mr Roberts will forgive me if, hereafter, I do not assign to him his post-nominals. A little later at T65.33 the plaintiff said this: "That vehicle just came straight into my face, just straight up into me." The plaintiff then said that as far as he could ascertain, the vehicle was on its correct side of the carriageway. There is no median line marked on Cooramin Street. In fact, there are no lines marked on Cooramin Street at all. A little later, the plaintiff gave this evidence-in-chief: "Q. Now, did you, I know you only had 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 came fast to me quick and it was fairly noisy, the engine of that car.." A little later the plaintiff was asked to explain what he meant by the phrase that the car was suddenly in his face. The plaintiff merely reiterated that the car was in his face and then he referred to both the speed and the noise of the vehicle.
He perceived, at that time, that the horse froze. When he was asked to explain what he meant by that, he said that the horse: "Just stopped and looked like that and he went very tight". The plaintiff agreed that when he said the horse stopped, he meant that the horse propped, i.e. ceased moving, and then he said: "The horse 'just looked in fright and very tight and then he exploded.'" The plaintiff thought to try to turn Buck to the left; that is, towards the southern fence line of the road reservation and away from the bitumen but the horse: "[…] just took off behind that car, bucking. I couldn't do anything. He was out of my control." When asked to explain what he meant by that answer, the plaintiff said that as the car went past him, the horse: "[…] took off to the northern side of the road behind the car". He said the horse bucked about four or five times and eventually the plaintiff came off the horse and the plaintiff landed: "[…] straight into the kerb and guttering on the side of the road".
He landed at the place I described in [38] above. As the car went eastward from the tree, the horse went westward from the tree but diagonally across the road, bucking and throwing the plaintiff onto the kerb and gutter where the drainage hole is. The plaintiff was asked to explain what he meant by the horse's bucking. He said this: "He jumped up in the air on all four legs, came down on his front legs, kicked up his back legs then jumped in the air and was bucking like a bucking horse in a rodeo." Mr Moore described the manoeuvre as "pig-rooting". I understand by that, he was describing the manoeuvre of the horse coming down on its front legs and kicking out with its back legs. The plaintiff was clearly describing the same manoeuvre. Evidence given a little bit later indicated clearly that the horse bucked after the defendant's motor vehicle had passed him by: T78.34.
The plaintiff said that when he came off the horse and landed in the gutter he was dazed and in pain. He felt the pain mainly in his right hip and on the left side of his ribcage. He was trying to get himself up out of the gutter when a man arrived on a motorcycle and dismounted from his motorcycle and held the plaintiff down. It is common ground that that gentleman was Mr Joshua Duck who lived relatively close by at 134 East Street, Cartwrights Hill. An ambulance was then called. That was called by a resident at number 24 Cooramin Street, Mrs Robyn Cole. The plaintiff's evidence suggests that he lost consciousness when he was in the ambulance on the way to the Wagga Wagga Base Hospital. However, it could be that the plaintiff merely had some form of post traumatic amnesia from that time onwards. His next recollection was of having surgery performed on his right leg.
It became clear from cross-examination that the plaintiff lost sight of the defendant's car when it was on the plaintiff's side, or eastern side, of the speed signs. Prior to making that admission the plaintiff said that he only lost sight of the vehicle "for a split second": T175.31. A little later he said that it was only out of his vision "momentarily": T176.13. He then admitted that he could see the defendant's vehicle by the time it reached the speed signs: T176.24 to T176.32 and T178.04. The plaintiff then made this admission commencing at T180.39: "Q. Do you agree that if the white vehicle was next to the speed sign in that photograph, heading towards you, you would have been able to see it? A. I reckon right opposite the speed sign, I could have see it, but just this side of it I lost it. Q. So, what do you mean by this side of it you lost it? A. Well, the sign, after the speed sign, I reckon at the time there I lost sight of that car. Q. So to the east of the speed sign you lost it? A. The side, their side. Q. Your side of the speed sign? A. Yes. Q. You lost it? A. Yes. Lost sight of it. Q. Have you got any explanation as to why you lost sight of it? A. Not really. I, maybe, I turned the horse off, I don't know. I don't know. I could have done, I could have blinked but I did lose sight of it and then it was on me."
A photograph, exhibit F, was taken from the southern side of Cooramin Street directly opposite the tree that has been used as a datum from the position where the plaintiff says he was standing at the time of the passing of the car and the horse. One can clearly see the speed sign on the northern side of Cooramin Street in that photograph and one can make out the same speed sign on the southern side of Cooramin Street, although it is obscured somewhat by a tree behind it. One can also see some dead ground beyond the speed sign and then the re-emergence of the bitumen as Cooramin Street reaches a flat area which continues to the intersection of Cooramin Street and Hampden Avenue. Exhibit H is a similar photograph taken from directly opposite the hole in the kerb where the plaintiff came to rest after he was thrown by Buck. Exhibit J is a photograph taken from directly between the two speed signs looking east, that is, up Cooramin Street, up the slope. One can see on the right hand side of that photograph, that is, on the southern side of the bitumen, some human beings. The photograph was taken by my Associate standing where the driver of a vehicle would be who was driving east along Cooramin Street and was directly between the two speed signs and the people that one can see on the southern side of the photograph further on are the lawyers and the litigants who were standing, in essence, directly opposite the tree.
In short, from between the speed signs to the accident scene there is a clear line of vision for a person travelling east and from the accident site to the speed signs looking west there is also a clear line of sight. The dead ground for a person, in the position of the plaintiff, approaching the accident site is to the west of the speed signs and the defendants' vehicle would have been visible to him when it reached the speed signs. That the plaintiff freely admitted. It is clear from the evidence which I have just quoted that the plaintiff must have become distracted by something and was not looking at the white vehicle after it had passed the speed sign heading towards him and that his attention was again drawn to the vehicle when it was almost upon him. The source of his distraction has not been identified.
Immediately after giving the evidence which I have just quoted, this evidence was given: "Q. You didn't hear that vehicle until it was near where you were. Is that right? A. That's when I was aware of it making the big noise. Q. Well, what do you mean by that? A. It was roaring. Q. It was roaring, was it? A. It was making the noise, yes. Q. Prior to it roaring, did you hear it before that? A. I would've. Probably did, yeah, probably did but I'm not saying it was roaring as loud as it was when he got near me." Again, that evidence suggests that the plaintiff only became aware of the defendant's vehicle emitting a loud noise when it was almost upon him, that is, after he returned his attention to the vehicle after being distracted.
A little later the plaintiff was asked again to explain what he meant by the car being in his face. He said this: "What I meant by that is, like I explained yesterday, I lost sight of it. It accelerated up the hill. All of a sudden there was noise and it was there. That's when I say it was in my face, and that's when the horse spooked or exploded or whatever you want to call it." Mr Wilson then asked the plaintiff whether he was saying that the car was "in his face" because it was travelling at some excessive speed. The plaintiff said that that he did mean that. It was then put to the plaintiff that the defendant was driving her vehicle at no more than 40 kph and he disagreed. He also disagreed with the proposition that as the defendant's vehicle approached him it moved further over to its left-hand side; that is, to the northern boundary of Cooramin Street away from the direction of the plaintiff. However this evidence was then given: "Q. Well, you wouldn't really know would you because you didn't see it until it was in your face? A. That's right." That is a candid admission, contrary to the plaintiff's own interests. At T183.45, this question was asked by Mr Wilson and answered by the plaintiff: "Q. See, as part of your case sir, you're trying to suggest this vehicle was doing 60 or 70 kph, aren't you? A. It was quick. It was smoking." I do not take the last answer literally. I do not take the plaintiff to have meant that the car was emitting visible fumes, such as one sees when a motor vehicle burns oil. I have heard expressions such as that used by the plaintiff in football commentary, where the following example is often heard: "player X smoked player Y (a fullback) and scored a try." What is meant by the verb "to smoke" in that popular usage is that the person ran very quickly, so quickly that the opponent was able to tackle the player heading towards the try line. I understand the words used by Mr Hobbs, "It was smoking", to mean that the defendant's vehicle was travelling very quickly. On the following page of the transcript the following evidence was given: "Q. If the car was doing 40 kmh there is no way the horse would have reacted? A. It, the horse was frightened by what he had, he had experienced. Q. By the speed of the vehicle? A. By the speed of the vehicle and the noise." Again, I do not take that as any evidence of the facts deposed to by the plaintiff but merely his view as an experienced horse rider, that what caused the horse to react in the way it did was either the speed of the defendant's vehicle or the noise emitted by the defendant's vehicle, or both.
A little later after that evidence I asked the plaintiff some questions. They were these: "Q. As I understand it, one thing that often causes horses to shy or startle is the proverbial snake in the grass? A. Yes, your Honour. Q. Did you see anything else and were you aware as you were riding Buck before he threw you of anything else that may have spooked him or startled him? A. No, your Honour. Q. Were you keeping a lookout as you were riding him as to what was ahead of him as well as you? A. I'm always on the alert, but my focus wasn't on a snake at that particular stage, again, your Honour, because that time of year we don't see snakes around here, your Honour. Q. Yes, well, I wasn't going to suggest that there was a snake involved in this case, but…what I'm saying is there are a number of things which might cause a horse to startle, such as, for example, a car back-firing, even if it was only going along at ten miles an hour, and it back-fired and startled the horse? A. Yes, your Honour. Q. But I'm saying apart from the defendant's vehicle, were you aware of anything else that could have startled Buck? A. No, your Honour."
Mr Wilson then resumed his questioning. The plaintiff was asked when he first saw the motorcycle that was driven by Mr Duck. He answered that he only saw the motor bike as he was "looking at its wheel when I was on the ground". I then asked Mr Hobbs whether he heard a sound of some vehicle prior to the horse's bucking, that was not the sound of the defendants' vehicle. The plaintiff said that he had not heard the sound of any other vehicle. That question was asked because a competing theory for what caused the horse to react in the way it did was that it was startled, spooked, or frightened by the noise of Mr Duck's motorcycle.
Later when Mr Wilson cross-examined the plaintiff about the number of bucks performed by the horse and as to the time in which those bucks took, the plaintiff said that there were "Four good bucks" and that that would take "about four seconds". It was suggested to the plaintiff that that might have only take two seconds but, he didn't agree with that proposition. The plaintiff then volunteered that he thought that there were four bucks because he was trying to get onto the grass in order to get a better landing. I infer from that that the plaintiff was trying to steer Buck onto the grass verge on the northern side of Cooramin Street in order that when he came off the horse he would land on grass rather than on the bitumen or the concrete kerbing and guttering. Unfortunately that did not occur. In answer to the following question, Mr Hobbs told me that the horse "tightened up" or "froze" halfway through the passing of the defendant's vehicle and that the "explosion", the commencement of the bucking, occurred as soon as the defendant's vehicle had passed. Mr Wilson then cross-examined the plaintiff as to what he meant by saying that the vehicle became louder and roared as it approached him. The plaintiff said this: "A. Well as it come up the hill it was making a fair noise, like it was roaring along, yes it did, it come noisier, and when it passed us it was noisy. Q. Well sir.. A. As it was roaring into us." The plaintiff then said that he heard this noise when the car was 15 to 20 metres away which would indicate that the plaintiff was aware of the defendant's vehicle when it was 20 metres away from him; that is, somewhere between the commencement of the kerbing and guttering and the pink letterbox.
At T197, the plaintiff was further cross-examined about the noise made by the defendant's vehicle. It can be summarised by this, which is one of the answers that he gave: "The noise I heard was loud enough and the excess speed startled this horse. That's all I can say to you." Again the plaintiff was advancing an opinion that the noise of the defendant's vehicle was sufficient to cause Buck to startle or to be spooked and likewise, the speed of the vehicle was such to cause it to either startle or be spooked.
The plaintiff maintained he was riding Buck close to the southern edge of the bitumen in order to stay out of the long grass. It was suggested to the plaintiff that it would have been quite easy for him to walk the horse at the extreme southern side of the road reservation along the fence line, where he would have been, as earlier discussed, some 9.5 metres away from the edge of the bitumen. The plaintiff said this: "I didn't walk the horse close to the fence line because I had experienced broken bottles and wire in long grass, and that's not a good thing". The plaintiff went on to explain that he had been riding a horse which was crippled by a broken bottle, the horse being cut severely by a broken bottle hidden in grass. The plaintiff's evidence in that regard is corroborated by Mr Doughty. Mr Doughty gave this evidence: "Q. Sir, do you agree that it would have been safer for the plaintiff to have ridden Buck where the asterisk is [in long grass] rather than where the circle is in MFI 3 [a copy of exhibit F the circle indicating where plaintiff says he was riding Buck when the car drove past him]? A. Am I allowed to take into account what I heard Mr Hobbs say this morning in this situation?...Because I, Mr Hobbs described the scenario as that grass being you know, about three foot high and you couldn't see what was on the ground. If you showed me that photo now where there is nice clear vision of the ground, I would agree with you in that it's clean ground, there's no rubbish there, etcetera, etcetera. However, if that grass was three foot high, which I heard in court this morning that the grass was about three foot high and you didn't have a clear vision of the ground, from a traffic perspective it would be safer to walk where the asterisk is, from a horse's welfare perspective, it would be safer to walk where the gravel is. So, if it was me in that situation I would have been walking where Mr Hobbs was walking. Q. But you agree, don't you, it's always safer to be away from the road rather than closer to the road? A. It's safer from a rider's perspective, it's not necessarily safer from the horse's perspective. HIS HONOUR Q. Because in the long grass could be a rabbit hole and his foot could go down the rabbit hole and break a leg? A. And standing on broken bottles is a really common occurrence around here." Earlier, Mr Doughty's evidence made it clear that he lived in the local area, had a farm somewhere nearby, drove past the plaintiff's home regularly on his way to and from the University campus and was, in essence, not only an expert but an expert based in the Wagga Wagga area. As was stated by Mr Doughty in chief he knew the local area and that was confirmed in cross examination at T229.40. Returning to the plaintiff's evidence about broken bottles in the long grass he pointed out that the injury to the horse, for which he'd given evidence, happened to the plaintiff when he was walking a horse down Old Bomen Road and that was what made him aware of errant motorists and pedestrians throwing bottles onto the side of the roads.
Between pages T196 and T205 the defendants' case was put to the plaintiff and, in essence, denied by him.
I return to the question put concerning MFI 3. As I have mentioned, MFI 3 is a copy of exhibit F. Marked in the extreme left hand corner in black ink is an asterisk which was put to the plaintiff was the place where he was when the car passed him. That had been suggested in the evidence to be some 4 metres from the side of the bitumen, into the long grass, but the asterisk may be merely diagrammatic because it appears to me that 4 metres from the side of the bitumen would probably take one off the photograph, to the left. The blue circle marked on the carriageway is the position where the second defendant alleges Mr Duck's motorcycle was after Buck started to misbehave. The important thing is that the circle which has been marked in red ink by Mr Hobbs as his position on the side of the carriageway, which is clearly just away from the edge of the grass, where the grass would have been if it were still 3 foot high, is marked on exhibit G. There is a clear dispute. The plaintiff says he was less than 1 metre off the carriageway, perhaps only 1 foot or 18 inches away from the carriageway and the defendant says that he was some 4 metres away from the carriageway. That issue can be easily determined in the plaintiff's favour from evidence I have yet to recite. However, that evidence needs to be considered primarily when considering the evidence on liability given by the second defendant. I now turn to that evidence.

The second defendants' description of the accident

The second defendant said that on the morning in question she was driving to her boyfriend's mother's house, the mother of Mr Ben Moore, which he said was on the corner of Cooramin Street and East Street: T273. However, according to Mr Moore, who was really in a better position to know where his mother lived than the defendant, his mother lived one house from the corner: T37710. That, of course, is a very minor point and perhaps might be thought to be completely irrelevant but it does give some indication of how reliable the second defendant's evidence might be. There is no doubt that on the morning in question Mr Moore, her then boyfriend, now fiancé, was a front seat passenger in the vehicle. They had been boyfriend and girlfriend since 2010, probably for about a year.
It is clear that the second defendant was driving out of the main area of Wagga Wagga. She travelled north along Hampden Avenue. She made a right hand turn into Cooramin Street. She estimated that to make that turn she reduced her speed to 20 kph. She said that she knew the speed limit in the first section of Cooramin Street was 80 kph and that she reached a maximum of 60 kph as she was heading up the hill towards the speed signs. She said that she did not reach 80 kph, the speed limit, because her car was incapable of reaching such a speed, presumably on a relatively steep uphill slope. The second defendant said that that estimate of the speed she reached was her best estimate of what speed she had reached. She said that "slightly before" reaching the speed signs she reduced her speed by both braking and by dropping back a gear. She did those things in order to reduce her speed from 60 kph to 50 kph.
When I heard that evidence I was somewhat surprised. To reduce one's speed from 60 kph to 50kph whilst going up this incline, in my view, it would have only been necessary to ease off the accelerator pedal and gravity would have caused the speed of the vehicle to decline. To both brake and drop down a gear appeared to be an excessive reaction to reduce speed by 10 kph, but that was the second defendant's sworn evidence. She then said that just after she passed the speed signs she saw Mr Hobbs riding the horse. She said that would have been at a "minimal distance" past the speed signs. In other words, she had a view of Mr Hobbs for about 133 metres, perhaps further, as the distance would have been greater before Mr Hobbs reached the passing point, at the tree. She thought the horse was "calm and relaxed at that point" but that is very difficult to accept when one looks at exhibit J, the photograph taken from between the speed signs looking east and the human beings that you can see are very small indeed, and it would be quite impossible to make out anyone's demeanour, let alone the demeanour of a horse even further east from where those people are standing.
The second defendant gave this evidence-in-chief: "Q. What did you do, if anything, insofar as the driving your vehicle was concerned, once you'd seen that horse? A. I'd slowed down my speed again to an average close to 40 kilometres an hour and I moved as far left to the road as I could." She went on to say that when she reached the area where the road widened, that is the bitumen widened where there was kerbing and guttering on her left, she moved further to the left so that she was 1 metre away from the gutter. If that were the case, the left-hand side of her vehicle would have been 7 and a half metres from the edge of the bitumen and probably about 8 metres from the plaintiff. However, her car was estimated by Mr Moore to be 1.5 metres wide so that the distance between the right-hand side of her vehicle and the plaintiff would have been about 6.5 metres. She said at that stage the horse still appeared to be calm as far as she was aware.
It is clear from all of the evidence that at some stage Mr Moore asked the second defendant why she was slowing down and she said that that was because of the horse. The second defendant also gave this evidence: "Q. Did you keep looking at the horse or did you turn your gaze away from the horse? A. No, I was aware of the horse as I was driving by. Q. That doesn't really answer my question. Did you keep looking at the horse or did you glance at it, see, slow down, then turn back to looking straight ahead, or did you keep looking at the horse? A. I wouldn't say I was facing the horse the whole time I was driving by, but I was aware of my surroundings so I had to watch the road and the horse as I passed it." The second defendant went on to give this evidence: "Q. There's no contest in this case that your car passed Mr Hobbs' horse in line with where that tree is. You were at the view yesterday? A. Yes. Q. You agree with that? A. Yes. Q. The view was [on Monday] I am told now. A. Yeah. Q. At that point what observation, if any, did you make of the horse? A. I observed the horse to be calm. Q. Once you got past that point, what observation, if any, did you make of the horse then? A. Once I had passed the horse and he was in vision of my rear view mirror, I have seen the horse begin to buck. Q. Then what did it do? A. It bucked three to four times across the road where Mr Hobbs had fallen off, to where Mr Hobbs had fallen off. Q. Just return to the point where your vehicle was level with the tree. A. Yes. Q. Can you tell the Court what, if anything, you heard at that stage? A. I heard the motorbike that was coming up Cooramin Street coming towards us up Cooramin Street. Sorry, coming behind us up Cooramin Street." She said that the motorcycle was making a loud deep noise. She compared that to the noise of her own vehicle which she described as a "quiet, small hum". She was then asked when she had first noticed the sound of the motorcycle. She said that she had heard it as it was coming up the incline on Cooramin Street, by which I infer she meant the hill towards the top of which the speed signs stand and beyond which is the crest east of the speed signs. The second defendant was then asked how far the motorcycle was behind her when she first saw it. She gave this answer: "An average of 20 to 40 metres." An average is not a range. If anyone should know that, it is a mathematics teacher. This was drawn to her attention. When she was asked then to give an estimate as to the distance that the motorcycle was behind her when she first saw it. She said that it was 40 metres behind her and shortening the distance between the cycle and her car as they both progressed east along Cooramin Street. The plaintiff then marked on a copy of exhibit F an asterisk for the place she said the plaintiff was at the time she passed him, and a circle on the carriageway to indicate where the motorcycle was when she passed the tree and the plaintiff on Buck. The markings are completely consistent with what had been marked on MFI 3 before it was shown to the plaintiff.
The document MFI 3 was then tendered, and it became exhibit 3.1. The document most recently marked by the defendant was also tendered, and it became exhibit 3.2. Exhibit 3.2 shows the motorcycle as being a little bit closer to the tree than exhibit 3.1, formerly MFI 3, suggests; in other words, the plaintiff marked on exhibit 3.2 a point closer to the tree where the motorcycle was than had been shown to the plaintiff, but again the distance is not particularly great.
The second defendant went on to say that she saw the horse bucking for two to three seconds, and then she saw Mr Hobbs fall off the horse, and she then made a U-turn. She said she made a U-turn where there was still kerbing and guttering, before the bitumen again narrowed, where there was no kerbing or guttering. We know that the kerbing and guttering ends 34 metres after the tree, so that in the time that elapsed during the passing of the horse by the car, the commencement of bucking and the throwing of the plaintiff and the second defendant's making a U-turn her vehicle travelled a distance of 34 metres.
After making the U-turn, the defendant returned to where Mr Hobbs was laying on the ground. As directed by Mr Duck, Mr Moore tried to ring an ambulance. The second defendant re-entered her car and drove off in order to find the horse. She said she drove towards Hampden Avenue but she could not see the horse. She then made another U-turn and drove east up Cooramin Street, and turned left into East Street, but thereafter she could not remember where she travelled, but she was not able to find the plaintiff's horse. She then returned to where the plaintiff was with Mr Duck and Mr Moore and waited with them until the ambulance arrived. When she returned Mrs Cole was also at the scene. When asked what she did observe about the horse after the plaintiff was thrown from it, she said that she saw the horse run, which means move at some speed other than walking, and perhaps it means "canter" or "gallop".

ADJOURNED TO TUESDAY 24 MAY 2016

Before commencing my reasons yesterday, I had intended to provide to those representing the parties, a list of further transcript corrections but I omitted to give it to my Associate to type. That was done yesterday afternoon and I now provide to the representative of the parties a document headed "Transcript corrections" which make corrections to the transcript which are not otherwise recorded in the transcript made to-date. I should say this about transcript corrections: only salient ones have been noted previously in the transcripts and on MFI 10 (see Hobbs v Fairall MFI 10 230516 (47.7 KB, docx) ). There are numerous errors of grammar and punctuation and syntax, errors which would require a long time to correct and it is otiose to do so. When I was quoting the transcript yesterday, I made some corrections which would be obvious to anybody who reads the transcript and then reads those parts of the transcript which I quoted in my earlier reasons for judgment. A simple illustration of the transcript complexity is, for example, the use of the preterite and past participle of the verb "to pass" and the use of the word "past", whether used adverbially or as a preposition. The transcript frequently confuses the two.

Post-injury dealings between the parties

At the conclusion of yesterday's proceedings, I completed outlining the evidence in chief given by the second defendant on the question of liability. Before going on to consider her cross examination I should advert to another area of evidence. That concerns post injury dealings between the plaintiff and second defendant. For some time after the accident the plaintiff did not consider pursuing any claim. However, in September 2012, the plaintiff consulted Mr Tim Abbott, a solicitor, in the firm of Walsh & Blair of Wagga Wagga. The plaintiff was provided with advice as to the need to obtain details of the owner and driver and the registration number of the vehicle that Mr Hobbs considered was the cause of his being thrown from Buck. In order to obtain that information the plaintiff contacted Mr Joshua Duck who, as I indicated yesterday, lived in East Street, Cartwrights Hill. Mr Duck was able to tell the plaintiff that the passenger in the second defendant's vehicle at the time of the accident was Mr Ben Moore and that he was the boyfriend of the driver. The plaintiff inquired of Mr Moore about contacting his girlfriend. That led to the plaintiff making contact with the second defendant.
This was some time in November 2012. The plaintiff gave this evidence in chief: "Q. Did you ask her whether she'd been the driver of the vehicle that had been involved in the accident? A. Yes, yes. Q. What did she say? A. She said, 'Yes'. Q. Did you ask her for the rego number? A. I did, at the time, but she didn't remember it. Q. Yes, did she say she'd get it for you? A. She said she'd get it for me the next night. Q. Did you contact her the next night? A. I went to see her. Q. Would she give you the registration number? A. No. Q. What did she say? A. She said, 'If I give you those details, I'm going to get into trouble and my third party will go up.' She wouldn't give them to me." In cross-examination the plaintiff admitted that MsFairall did not use the words "I'm going to get into trouble" but maintained that the second defendant did say that she was not prepared to provide the registration details of the vehicle she was driving because that might cause her third party premium to increase.
On 29 November 2012 Messrs Walsh & Blair wrote to the second defendant a letter, the substance of which is this: "We act on behalf of Anthony Hobbs in relation to a motor vehicle accident which occurred on 24 September 2011. At the time our client was riding a horse along Cooramin Street, Cartwrights Hill. We understand that you were the driver and/or owner of a white four wheel drive which we believe was involved in the accident. We would appreciate if you would let us have the registration of the motor vehicle you were driving at the time." That communication would appear, objectively, to have been ignored. Messrs Walsh & Blair sent another letter to the second defendant on 31 July 2013. That repeated the instructions of Messrs Walsh & Blair to act for the plaintiff in relation to the accident that occurred on 24 September 2011. The letter went on to enclose by way of service a "Motor Accident Personal Injury Claim Form" together with the appropriate Medical Certificate. The second defendant was asked to forward the claim form to her compulsory third party insurer "as soon as possible". That communication was also, objectively, ignored. Those two letters form exhibit S.
On 26 November 2013 Messrs Walsh & Blair sent another letter to the second defendant. The substance of that letter says this: "We refer to service on you of our client's Motor Accident's Authority Personal Injury Claim by Graeme Hackett of 6 August 2013. As previously advised in our letter dated 31 July 2013, copy enclosed, would you kindly forward the claim form to your third party insurer without delay. If we do not hear from you or your insurer within seven days we will proceed personally against you." That received in reply, what is described in the transcript at T69.19 as a letter, but it might be an email. It was sent not by the second defendant but by the first defendant. It bears date 5 December 2013. It enclosed a copy of the renewal of the CTP insurance for the 1993 Daihatsu Feroza, registered number BE 71 NA. The reply succinctly states the insurer's name and the policy number as well as providing a copy of the renewal notice.
On the evidence that is objectively before me, that was the first time the plaintiff and his solicitors were advised of the registration number of the vehicle being driven by the second defendant, at the time of the accident, and therefore the identity of the CTP insurer, such that the plaintiff and his solicitors could make contact with the CTP insurer and serve upon it the personal injury claim form that is mandated by MACA.
The significance of this interchange at the current time is that it would appear that the effective defendant, the CTP insurer, only became aware of the plaintiff's claim in December 2013, or early 2014. It was only then that the CTP insurer commenced to make inquiries and, for example, to interview the second defendant, Mr Moore and Mr Duck. Assuming that the second defendant was interviewed in January 2014, she was first interviewed about the accident some two years and three months after the accident occurred, hardly at a time when the relevant facts were fresh in her memory. The same could be said of Mr Moore and Mr Duck. The lapse of time between the accident and the first interview must be taken into account in assessing the reliability of what the second defendant had to say about this motor vehicle accident. One would have expected that in the normal course of events, Mr Abbott would when he first interviewed Mr Hobbs, in September 2012 obtained a statement from him recording the plaintiff's recollections of the accident which had occurred approximately one year before.

Cross-examination of the second defendant

Mr Roberts cross-examined Ms Fairall about these communications on 5 May, commencing at T291 until T298. During that cross-examination the second defendant said that she did speak to somebody at Walsh & Blair on the telephone. She referred to speaking to the "lady at the front desk". If one is talking to another person on the telephone, one hardly knows where the person answering the call is. However, it may merely have been Ms Fairall's description of the person she believed to be the receptionist and therefore a person likely to be sitting "at the front desk". The second defendant said that she may have given the registration number of the vehicle to the receptionist, or the person who answered the telephone, but she was unable to recall whether she did or not. The persistence of the plaintiff's solicitors pursuing Ms Fairall to provide the registration number of her vehicle and its ultimately being provided to the plaintiff's solicitors by the first defendant in December 2013 tells objectively against the second defendant's having provided to anybody at Walsh & Blair the registration number of the vehicle which she was driving at the time of the accident. If that had been given to the receptionist I am confident that any competent solicitor would have made enquiries to ascertain whether that vehicle had been owned by the first defendant or by the second defendant or by a related person, and as to who the CTP insurer was.
I turn now to the further cross-examination of the second defendant Ms Fairall. The second defendant agreed that she had two conversations with the plaintiff on consecutive evenings after the accident. The relevant part of the cross-examination was: "Q. In the first one he said, what I've already put to you, namely were you the driver of the car involved in the accident and you said yes. Do you recall him saying that to you? A. I don't recall it but I wouldn't say that it didn't happen. I'm agreeing with you. Q. Do you recall him saying words to this effect, 'Is your car registered?' to which you answered, 'Yes'. And he said, 'Are you sure?' and again you answered 'Yes' and he said, 'Cause if it's not, I'm walking away right now from you'. Do you remember that conversation [in] the first conversation you had? A. Not specifically, but I agree that would be something he would say and I would say back. Q. What I suggest is that he said to you on the second occasion, or you said to him on the second occasion, that you wouldn't provide details of your registration because the cost of your green slip would go up. Do you remember saying that to him? A. No. I remember saying I would not give him my registration details because I believe I had no reason to give somebody my registration details. Q. What led you to that belief? A. I didn't know why I would need to give somebody my registration details. Q. On the night before, or on the day before, you don't deny that he said to you, 'Were you the driver of a car involved in my accident?' and you answered, 'Yes'. You don't deny that? A. No, I don't deny that. I did agree that I said that I was driving the vehicle but I did not see why I needed to give somebody my registration details. "Q. Were you concerned that if there were - if there was a claim made against you in respect of his injury, the cost of your registration may go up? A. No I wouldn't be concerned of that. By that stage my mother had paid my or the rego of the car and all that sort of stuff so I had no reason to know if it was going up or not." One will note an inconsistency in what I have just quoted: in the second answer Ms Fairall said that she didn't recall something but then agreed with the proposition that had been put to her.
The reason provided by Ms Fairall for not providing to the plaintiff her registration number is completely unsatisfactory. No harm at all would be caused to her by her providing the plaintiff with her registration number except the very matter that the plaintiff told me of, that the second defendant feared that the cost of her CTP insurance might increase. In other words, on my understanding and comprehension and interpretation of the evidence, what the plaintiff said has the ring of truth. What the second defendant says on that issue is implausible.
The second defendant was then cross-examined about a matter that was not put by Mr Wilson to the plaintiff. In her evidence in chief, the second defendant volunteered that the plaintiff had said to her "What happened before the accident?" She maintained that the plaintiff said that or something close to it. She was then asked whether she'd ever told anybody else that that was what the plaintiff said in the first conversation he had with her and she said that she'd never told anyone that before. The significance of this is that when the plaintiff was cross-examined by counsel for the defendant, Mr Wilson, he had not put to the plaintiff that the first thing he said to Ms Fairall was "What happened before the accident" and in cross-examination, the plaintiff admitted that she hadn't told anyone antecedent to volunteering the evidence in chief that the plaintiff had said that to her, which indicates, of course, recent invention and that she had not instructed Mr Wilson prior to his cross-examining the plaintiff that he had said words of that nature or to that effect. Indeed, at the foot of T298, the plaintiff admitted that she didn't think of telling either her barrister or her solicitor about that when she talked with them prior to giving evidence. That however, is only a relatively minor issue.
At T304, the second defendant admitted that when interviewed on behalf of the CTP insurer, her memory of the events was not fresh. She referred in her answer at T304.34 to "We" being interviewed, which is clearly a reference to her and to her boyfriend/fiancé, Mr Moore. She also admitted that her memory of events would not be as good on the day of being cross-examined, 5 May 2016, as it would have been on the day of the accident, 24 September 2011, some four and a half years earlier.
At T307, the second defendant was cross-examined about the incline on Cooramin Street as one travels eastward from Hampden Avenue to East Street and she described it as a "small incline" that she did not regard in any way as being steep. Then the second defendant said that there was a slight incline as one approached the speed signs and then the incline "Increased again". The incline, in my estimation, is even but shortly after the speed signs, the incline flattens out making the crest which is evident from inspecting the photographs and evident from the view.
Mr Roberts then turned to the speed at which the second defendant was driving at as she travelled along Cooramin Street. In essence, the second defendant maintained the evidence which had been given in chief; that she was driving at 60 kph, that she then applied the brakes and changed down a gear and wouldn't agree with the proposition that all that was necessary to reduce her speed was to take her foot off the accelerator pedal which is something that I adverted to yesterday, merely easing off the speed of acceleration as one was climbing the hill. It was put to the plaintiff that she did not apply her brakes but she disagreed.
She maintained that the plaintiff on his horse was some four metres off the road on her right as she was driving along the street. She was asked whether they were in long grass but she didn't remember that, which is an acknowledgement that her memory was not very good. She reiterated that the horse was "walking fine and walking calmly and not tossing his head" and that she observed that from just on the eastern side of the speed signs, which, as I pointed out yesterday, would be almost impossible to observe. It was then put to the second defendant that she was reconstructing her evidence for the purpose of the proceedings but she would not agree with that.
She then agreed that earlier in her evidence in chief she said that she had ridden horses from the age of five and that she was conscious of the need to drive cautiously when approaching a man on a horse on the roadway. She agreed that she was conscious that it may be necessary safely to pass a horse and a rider on the roadway to reduce her speed to somewhere below the speed limit and she maintained that she did so on that day.
At T313 she was questioned about when she had seen the motorcycle on occasions subsequent to first seeing it and said that she did not recall that. When asked why she could say that she was travelling at about 40 kph at the time she drove past the horse she volunteered that she "checked my speed gauge". That was not evidence given in chief. If she had so instructed her counsel and solicitor one would expect a counsel as thorough as Mr Wilson to have adduced such evidence in chief. He made no attempt to do so. He could hardly, therefore, have been instructed by the second defendant that at some stage prior to driving past the horse after reducing her speed to 40 kph she looked at her speedometer to ascertain her speed. The ability of somebody to remember when they looked at their speedometer four and a half years after the driving in question is implausible in the extreme. The second defendant's protest that she had checked her speedometer is implausible and likely to be a recent invention. Mr Roberts put this to the second defendant: "Q. We're talking about an event that occurred four and a half years ago - nearly five years ago. You say you recall or nearly sure you looked at your speedo? A. Yes."
Mr Roberts then turned to the sequence of the events immediately prior to the plaintiff's being thrown from his horse. This evidence was given: "Q. You say, as I understood your evidence this morning, that as you got to that position where the tree was immediately on your left and Mr Hobbs was immediately on your right. Is that so? A. Yes. Q. When you got there you had a look [at] Mr Hobbs and his horse. That's what you swore this morning and the horse was still calm. That was your evidence this morning? A. Yes. Q. Are you sure about that? A. Yes." Ms Fairall was then asked when she might be wrong in her recollection and that the horse had started to become agitated. She denied that he was, in her view, in any way agitated, that the horse was still walking calmly and was not showing any sign of agitation.
This evidence was then given: "Q. What happens next? A. The horse started to move. Q. When you say "move" what do you mean? A. More like differently to what he was calmly walking. Q. I want you to describe what you observed? A. I would say he had taken a step to the left, maybe a step to the right, and then he began to buck. Q. Still up on the grassed area? Not on the gravel? A. Still up on the grass area. Q. Still up on the grass area at least - approximately 4 metres from the road? A. Yes. Q. Still? A. Yes. Q. You've passed? A. Yes. Q. You're proceeding east? A. Yes. Q. Is that right? A. That is right. Q. You see him adopting, not a calm gait but something else. Is that right? A. Yes. Q. Then proceed to buck? A. Yes. Q. You saw all that? A. Yes. Q. In which rear vision mirror? A. The central one. Q. At this stage, on your evidence, is 4 metres off the road to your right? A. Yes. Q. You have over half the distance of the road between you and the gravel verge? A. Yeah. Q. Is that right? A. Yes. Q. Another 4 metres off to your right? A. Yes. Q. You agree, don't you, that when one looks in a rear vision mirror, after you pass something, on your right hand side, that's at least 8 metres away from you, you follow what I'm putting to you? A. Yes. Q. You won't see it in your rear vision mirror until you've proceeded some distance down the street? A. Sorry, you are right, yes. Q. Indeed there is no way in the world you could see what you say you saw in the distance in which you say you saw it, is there? A. No, not out of my central rear vision mirror, no. Sorry, you were right." The luncheon adjournment was then taken.
No doubt Ms Fairall had time to reflect during that hour what she had just admitted, that she had sworn on oath she saw certain things out of her central rear vision mirror and it transpired that on her version of events that would have been entirely impossible. After the luncheon adjournment Mr Roberts persisted with this line of questioning. This question and answer were given: "Q. You became aware, by seeing out of the corner of your eye, that the horse has started to buck. That's right, isn't it? A. Yes." That answer is consistent with what the plaintiff had said that as the car was travelling past him Buck froze and once the car was past him, when he was only about 1 foot or 18 inches from the side of the bitumen, Buck, the horse, commenced to buck. That is also something which a motorist might be able to see from the side view mirror. However, the second defendant then resiled from the concession that she made. Her resiling from that concession made at T318.19 can be found at T318.42 and T328.14.
Commencing at 318.45, Ms Fairall said that she only noticed the horse commence to misbehave when she was five metres past the horse. At T321.35, she said she was perhaps more than five metres past the horse and at T323.15 she said she was perhaps a lot more than five metres or so away from the horse at the time it commenced to misbehave. This evidence was then given: "Q. Do you say that in your rear vision mirror, only five metres past where he was, you could see him off to your right, four metres away from the roadway, is that your evidence? A. No. Q. No, because it would be impossible, wouldn't it, you know? A. Yes." The second defendant then went on to say that her vision of the horse was not from her central rear vision mirror, but from the side view mirror on the driver's side. The second defendant then maintained that she could see Mr Hobbs from her side view mirror when he was four metres away from the roadway. This question and answer were then given: "Q. So was this driver's side mirror positioned so that it would look out to your right, rather than behind you? A. No, but I can see out towards the right." In essence, it was then put to Ms Fairall by Mr Roberts that she was concocting her evidence. However, even the new evidence that she was giving was, to use the expression put to Ms Fairall by Mr Roberts, "fanciful".
After telling me of seeing things in her side view mirror, I asked Ms Fairall some questions. That questioning was continued by Mr Roberts. Commencing at T320.31: "HIS HONOUR Q. Because we know that if you don't have side mirrors, you've got blind spots behind you, haven't you? A. Yes, yes. Q. If you look on the passenger's side it shows you - you can see what would otherwise be the blind spot on the passenger side? A. Yes. Q. And if you look at one on the driver's side and you can see what would be a blind spot on the driver's side? A. Yeah. .Q. It's basically to tell you what's near your vehicle but behind you, your blind spots? A. Yes ROBERTS Q. I want to suggest to you it would not have shown you, or you would not through that mirror have been able to see Mr Hobbs if he was four metres off the roadway because - do you understand what I'm putting to you? A. Yes. Q. Do you agree or not? A. No. Q. Even though there would be a distance on your evidence of more than half the road, more than half the road because you were way over to the left according to you? That's right? A. Yes. Q. Plus another four metres? That, I want to suggest to you, is just impossible to imagine, is it not? OBJECTION. UNFAIR QUESTION. QUESTION REPHRASED. Q. What I want to suggest to you is that it is fanciful? Do you agree what I mean by that word? A. No. Q. What I want to suggest to you is you are making it up when you say that you could see Mr Hobbs in the position in which you say he was, having just passed him out of that side-view mirror? Do you agree or not? A. No."
The width of the bitumen from the kerb on the northern side to the southern side of the road is 8.5 metres. According to evidence given by Mr Moore the second defendant's vehicle was one and a half metres wide. The second defendant said that she was travelling one metre from the kerb. Accordingly, the right-hand side of her vehicle would have been 2.5 metres from the kerb, indicating that between the right-hand side of her vehicle and the edge of the bitumen was a total of six metres. If one adds to that 6 metres the 4 metres which is the evidence of the second defendant as to the distance of the horse and rider from the bitumen, one comes to 10 metres. The second defendant says that the plaintiff was five metres behind her. It is unclear whether that means five metres behind her vehicle or 5 metres behind where she was sitting in the driver's seat. In either event, we are looking at a right-angled triangle having a height of 5 metres and a length of 10 metres and the line of sight represents the hypotenuse of that right-angled triangle. If one projects that onto a piece of paper, in visual form, one can conclude as I have concluded that the evidence of Ms Fairall is bizarre because one cannot see such a wide angle from a side view mirror designed to capture what is in the driver's blind spot on the driver's side of the vehicle. There were many protestations made by Mr Wilson about my view of that evidence and he said that there are many different combinations of mirrors and the like. However, evidence was adduced by Mr Roberts that the second defendant's side view mirror had no magnification and for the mirror to be set at such a wide angle would negate its purpose of showing the blind spot. This evidence of the second defendant is just completely unacceptable and in my view, a reconstruction.
Mr Roberts then turned to the position of the motorcycle and the second defendant maintained that it was only 20 metres behind her as she passed the plaintiff. She said that she could see that through her central rear vision mirror. There is this inconsistency, of course: as she is passing Mr Hobbs, she is looking at the motorcycle, using the central rear vision mirror, then how could she be looking at Mr Hobbs through her side view mirror? However, that was not pursued by Mr Roberts. This evidence was then given: "Q. You also have given evidence that the motorcycle, the sound of the motorcycle engine was a loud deep noise? That was your evidence early today, wasn't it? A. It was. Q. Is it your opinion, your opinion, I'm only asking you yours, that it was this motorcycle 20 metres behind you making a loud deep noise, that caused Mr Hobb's horse to commence to buck? A. No." Mr Wilson urged upon me that that admission by the second defendant that she was not trying to lay responsibility for the plaintiff's accident upon Mr Duck's motorcycle should be taken to her credit. However, the fact remains that Ms Fairall was in court nearly the whole of the time the case had been running by this time and she was no doubt aware that both Mr Wilson and the expert qualified on behalf of the defendants, Mr Jefferys, were going to advocate that very proposition. Knowing what was to come, it was unnecessary for the second defendant to advocate the case which was to be advocated professionally. I do not see that answer as resounding to the second defendant's credit.
Later in cross-examination, Ms Fairall said that she thought it took two or three seconds for Mr Hobbs to be thrown from the horse, meaning that the bucking took two or three seconds. She denied, however, that she saw Mr Hobbs actually coming off the horse but she saw him subsequently lying in the gutter. It was suggested to the second defendant that, after passing the plaintiff, she travelled up Cooramin Street close to East Street, but she denied doing that. She said that in the two or three seconds that the horse was bucking, she travelled "an estimate of five maybe 10 metres". It was then put to her that she was telling the court that she had travelled 5 metres in several seconds and she said that that was so. This evidence was then given: "That means you must have been, what, travelling at walking speed or thereabouts? Less than walking speed, doesn't it? A. It does." The second defendant then said that as she passed Mr Hobbs she was braking gradually because she was concerned for him. If, when she passed him nothing appeared to be amiss, why would be she start to gradually brake after passing him? That has never been pursued. It was then put to the second defendant that she drove up to the end of Cooramin Street and made a U-turn at its intersection with East Street. She denied that. She also denied driving at substantially in excess of 40 kph and denied travelling around 60 kph. She also denied that her car was emitting a high-pitched, whining sound.
When Mr Roberts had finished asking the second defendant questions, I asked some. She agreed that if she were travelling at 40 kph that she'd be travelling at 11.11 metres per second. She also agreed that, theoretically, with the lapse of three seconds, she would travel 33 metres. Of course, the significance of that is that from the tree to the edge of the kerbing and guttering is a distance of 34 metres which would make it quite impossible for the second defendant to have stopped and completed her U-turn before the end of the kerbing and guttering which was the position that she adopted, unless, of course, she were braking during the approximate three seconds that elapsed from the time that she passed the plaintiff at the tree. In re-examination, Ms Fairall said that she had, during her travelling along Cooramin Street, a conversation with Mr Moore who asked her why she was slowing down and she said that it was "because there is a horse".

Other lay evidence - Mr Moore

Fortunately I am not limited to the evidence of the plaintiff and the second defendant to determine liability. Evidence was called in the second defendant's case from Mr Moore and evidence was adduced in the plaintiff's case from Mr Duck. It is convenient to discuss the evidence of Mr Moore first.
As I pointed out yesterday, Mr Moore was, at the relevant time, Ms Fairall's boyfriend, now fiancé and living together in the suburb of North Wagga Wagga. There is no suggestion that their relationship was interrupted between the time of this motorcycle accident and the time of their giving evidence. Rather the evidence of Ms Fairall suggests that they were still in a relationship at the time that each of them was interviewed by a representative of the CTP insurer. However, the evidence given by Mr Moore favours the plaintiff's case rather than the defendants' case. For example, one will recall that the second defendant said that when she reached the speed sign reducing the permitted speed to 50 kph she both applied the brake and dropped down a gear. This evidence was given by Mr Moore: "Q. Did anything occur with the vehicle when you reached the 50 sign? A. Nothing occurred because we were only doing 50 at most."
As I pointed out yesterday Mr Moore's evidence was predicated to an extent, on his view, that the second defendant's vehicle was "gutless", very low powered. However, importantly, he says that nothing happened when the second defendant's vehicle reached the 50 sign, that there was no braking and no dropping down a gear. His evidence was that they were "roughly on the crest of the hill" when the second defendant pointed out the horse to Mr Moore. In other words, Mr Moore did not himself see the plaintiff riding the horse but had his attention drawn to them by the second defendant. Mr Moore then said this: "At that point Holly started to slow down. Further on down the track, as we were getting closer towards the horse, I then asked, 'Why are we slowing down?' That's just me. If a horse 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 had noticed a motorbike down further and then by that point we're doing a U turn." Mr Wilson then asked Mr Moore for an estimate of the distance that he was from the plaintiff when the plaintiff was pointed out to him by the second defendant. He provided an estimate of 100 metres. He was asked to what speed the second defendant reduced the velocity of her car and he said to 40 kph or less. He also said that the car did veer to the left when the road widened which, as I pointed out yesterday, is some 23.5 metres before the tree, that is the datum in this case.
He was asked how far the second defendant drove towards the guttering on the left hand side of the vehicle. Mr Moore said that that was "roughly 2 to 3 metres at most". That has to be compared with the 1 metre advanced in evidence by the second defendant.
Mr Wilson then asked Mr Moore questions about the motorcycle. He was unable to remember any sound of the motorcycle. Indeed, he admitted that the first time he saw the motorbike was when he turned around to watch Mr Hobbs and the horse, that is, after the second defendant's vehicle had passed by the plaintiff, something caused him to look over his right shoulder through the back of the car to see what was happening to Mr Hobbs and that is when he saw the motorcycle. Clearly, antecedent to that he had not heard it emit any noise that drew his attention to it.
Mr Moore was then asked to mark where the horse was standing as the second defendant's vehicle passed it, with an asterisk and also to mark with a circle where the motorcycle was when he first saw it. That copy of exhibit F became exhibit 5. Exhibit 5 must be compared with exhibit 3.1, that shown to the plaintiff with pre-marked positions indicating the second defendant's instructions, which was marked with a red circle by the plaintiff to indicate where he was in proximity to the edge of the bitumen, and with exhibit 3.2, the copy of exhibit F, marked by the second defendant which is consistent with the pre-recorded markings on exhibit 3.1 Mr Moore placed the plaintiff and the horse much closer to where the plaintiff said he was than where the second defendant said he was. When shown exhibit 3.1 in cross-examination, Mr Moore agreed that the position marked on exhibit 3.1 by the plaintiff, as to where he was, was the correct position of the plaintiff at the time that the second defendant's vehicle passed the plaintiff. I averted to this yesterday. Clearly Mr Moore placed the plaintiff exactly where the plaintiff said he was, quite inconsistently with the second defendant's averment that the plaintiff was some four metres to the south of the bitumen, which would have put him in the long grass referred to earlier.
To confirm that Mr Moore only saw the motor cycle after he looked at the horse and rider, after the second defendant's vehicle had passed the horse and rider, this evidence given in-chief should be considered (T354.06): "Q. Once your vehicle got next to the horse or in line with the horse, did you see it at that stage? A. Yeah. I was keeping an eye on it as we were driving past it and as we've passed it I've kept watching, and that's when the horse started to pig-root or buck, play up, and as it got behind us on the middle of the road, you can say, that's when I've noticed the motorcycle." In cross-examination (at T366.21) this evidence was given: "Q. The first time that you saw the motorcycle was after you had passed the horse? Yes. Q. Until you turned around and saw it, you were unaware it was there? A. Yes."
Mr Hobbs said he was looking over his right shoulder to observe the horse and its rider. This evidence was then given: "Q. What did the vehicle do at that point? A. At the point where Hobbs was starting to buck, Holly has started to do a U-turn and I've kept eyes on the horse, and Hobbs himself, and then as we've turned around by the time we got out of the car Josh [Duck] was assisting with Hobbs and Josh told me to phone the ambulance."
Exhibit 4 was then shown to Mr Hobbs, and he was asked to mark on it where it was that the second defendant performed the U-turn. As I mentioned yesterday, exhibit 4 is a photograph taken from the middle of Cooramin Street looking north from out the front of No. 24. One can see on it the letterbox of No. 24 and the ending of the kerbing and guttering at the eastern boundary of No. 22 and then the unkerbed and unguttered carriageway continuing on to the white posts which indicate the culvert. Mr Moore drew a line immediately below the posts which indicate the culvert, and he knew that those white posts did indicate the culvert. Of course, that means that the second defendant did not stop her motor vehicle within 34 metres of the tree, but stopped and made the U-turn at a distance of, at maximum, 111 metres; or allowing for there being some small distance between the culvert and the point where the second defendant actually made her U-turn a distance of at least 100 metres. Mr Moore then gave this evidence-in-chief: "As we've turned around by the time the car is facing down the hill, Hobbs is laying in the gutter, near the gutter, and Josh is, at that point, parking his motorcycle and then by the time Holly has dropped me down near where Hobbs is, Josh is already assisting with Hobbs."
Earlier evidence given by Mr Moore in-chief appears to indicate that he saw Mr Hobbs falling from the horse after Ms Fairall commenced to slow down to make the U-turn when he was still looking over his right shoulder through the back window of the vehicle.
In cross-examination Mr Moore said that he did not think the second defendant's vehicle was travelling at 60 kph up the hill because of his estimate of the power of the engine, which in his estimate was extremely small. Commencing at T372, Mr Moore told me that what caused him to look over his right shoulder was the fact that his girlfriend, Ms Fairall, had pointed out to him that the plaintiff's horse "was starting to play up". He said that that occurred maybe one or two seconds after the car had driven past the horse and rider. What he noticed was that the horse was "starting to pig-root on Mr Hobbs". The important word there, in my view, is not the verb "to pig-root" but the present participle of the verb "to start", that Mr Moore saw what he considered to be the commencement of the bucking of the horse and therefore, what the second defendant had earlier drawn to his attention must have been the horse's freezing. That could have been in less than a second after the vehicle passed the horse. Mr Moore then said that as the horse was pig-rooting, it moved to the centre of the roadway and it was then that it started to buck. By the time that the second defendant was doing the U-turn, the horse was closer to the northern side of the roadway; that is, closer to the kerbing and guttering.
Mr Moore then said that he did not see Mr Hobbs actually coming off the horse because that was at the time the U-turn was being made, when his vision was obscured because he could not see behind because as the vehicle turned he would be unable to see the horse and rider until the car was again facing directly down, that is, westwards on Cooramin Street. This evidence was then given (T374.25): "Q. Could I suggest to you that in fact the horse started to buck just as the vehicle went past it. Do you disagree or not? A. As the vehicle went past him, yes. Q. The effect of what you've said so far is that the vehicle was some further distance to the east by the time it started to buck. Do you understand me? A. The vehicle was past the horse? Q. Yes. A. Yes. Q. By some seconds? A. Judging on one or two, it wasn't, it wasn't far."
That evidence is consistent with what the plaintiff had to say as to what happened, that as the defendant's vehicle passed the horse, the horse froze and that immediately after the car had passed wholly by, that the horse started to buck, heading on to the bitumen, diagonally away from the defendant's motor car.
Mr Roberts then turned to the question of where the motorcycle was. He thought it was "roughly" 50 metres behind the defendant's car. He disagreed that it was only 20 metres behind which, of course, is the distance provided by the second defendant. His evidence referring to the photographs suggests that it was some 23.5 metres away from the tree but by that stage the defendant's vehicle would have been well past the tree. He agreed that at the time that he first saw the motorcycle, the defendant's vehicle was closer to the plaintiff than was the motorcycle and that the horse was headed, albeit diagonally, away from the defendant's vehicle, but heading in the direction of the motorcycle. This evidence was given by Mr Moore: "Q. Did you - did it look to you like the two might collide, the horse and the bike? A. After Hobbs fell off when the horse came back into the road, yes, because Josh swerved to miss the horse." In other words, the horse's path both before and after the plaintiff came off the back of the horse was generally in the direction of the motorcycle.

Mr Duck's evidence

As I have already mentioned, Mr Duck lived at 134 East Street, Cartwrights Hill. He was somewhat older than Mr Moore but the extent of the age difference surprised me. Mr Moore told me that Mr Duck was the father of one of his friends. Mr Duck told me that he drove a Suzuki 1800cc Cruiser. On Saturday 24 September 2011, he was going on a "Charity ride" and had driven into Wagga Wagga itself in order to fill the fuel tank of his motorcycle. He was then returning to his home in order to pick up his wife. He clearly drove up Cooramin Street with the intention of turning left into East Street to reach his home and make contact with his wife. Mr Duck told me that his house is halfway along the block of East Street between Cooramin Street and Old Bomen Road.
In-chief, Mr Duck said that he could not recall any vehicle being in front of him as he started driving up Cooramin Street from the intersection with Hampden Avenue. However, a little later in-chief, he said that he did not see any car in front of him as he proceeded up the hill to reach the crest on Cooramin Street. That is quite inconsistent with the second defendant's averment that when she first saw the motorcycle as she was going up the hill, the bike was 40 metres behind her. If that were the distance between the two, Mr Duck would have had a clear view of the second defendant's vehicle. This evidence was given by Mr Duck: "Q. ….you get to about the 50 kilometre an hour sign? A. Yep. Q. When you got there, did you see anything in front of you? A. Yeah, once I got past the 50 k sign, it goes - flattens out and then I seen the horse bucking a couple of times, threw Mr Hobbs in the air and landed him on the tar road. Q. Right. After he landed on the tar road, did you bring your bike to a halt? A. Yeah, I pulled straight over to assist him. Q. I think you had to avoid the horse, is that right? A. Yeah, the horse was full noise, straight towards me. HIS HONOUR Q. Sorry, was heading towards you? A. Yeah, the horse, it was on a.. ROBERTS Q. It took off down Cooramin.. A. Down the road, yep. Q. Turning right into Hampden Street on the way home, as far as you know? A. Yep, and headed home, yep." Of course, the latter observation is really based on what he was subsequently told. However, it is clear to me from Mr Duck's evidence that shortly after he passed the speed signs he saw the horse bucking across the roadway throwing the plaintiff into the gutter.
If one looks at exhibit J, the photograph taken from between the speed signs looking east along Cooramin Street, one can see a grey sedan parked on the left hand or northern side of the road. That grey sedan can be seen in exhibit E which shows both a grey sedan and a white BMW. Between those two cars was the drainage hole in the kerbing which one can see in exhibit D, that is, between those two cars is where the plaintiff came to "rest" after he was thrown from the horse. As the grey sedan is clearly visible in exhibit J it appears to me from his position or shortly thereafter it would have been obvious to Mr Duck what was happening to the plaintiff and Buck. He clearly would have had a good view from very shortly after, if not, at the speed signs themselves.
Mr Roberts then asked Mr Duck whether, as he came to a halt to go to the assistance of the plaintiff, he saw another vehicle. He said he saw another vehicle at the end of the street turning around. This evidence was then given: "Q. So was someone at the intersection of East Avenue, East Street, and Cooramin Street, were turning around? A. Yep, they turned around. Q. What sort of a vehicle was it? A. A little white four wheel drive. Q. Did it return to - drive back to the scene? A. Yep. Q. Do you know who was driving? A. I believe it was Ben's girlfriend. I know Ben, but - Holly, I think it is." He then said that he asked Mr Moore to ring for an ambulance, that he tried but was in some way unsuccessful, then a resident of No.24 appeared, Mrs Robyn Cole, and Mr Duck then asked Mrs Cole to ring for the ambulance which she did. At T135.20 this evidence was given: "Q. It has been suggested that your motorcycle was following a car up the hill, only 20 metres behind it, prior to the horse commencing to buck and throwing Mr Hobbs. What do you say about that? A. I was a good probably half a block away. Q. When you say half a block, do you mean halfway between where? Perhaps, I'll.. A. Well, if I'm at the 50 sign and they're at the end of the street, so that's probably half a block, if you understand. Where they're turning around, doing the U turn." Again, the witness denied that he was only 20 metres behind the small white four wheel drive.
A large part of the cross-examination of Mr Duck was directed to his motorcycle and its characteristics. Mr Duck told me that he had grown up riding bikes all of his life. He agreed that his vehicle was a 109 cubic inch fuel injected engine. He agreed that it was a very powerful bike and that it had a lot of torque. He said that it had two exhaust outlets both on the right hand side. When asked to explain what he meant by torque Mr Duck told me that he had had "a lot of power down low." When cross examined about the sound of the exhaust Mr Duck admitted that it was loud "but it's not excessive". He was asked whether when accelerating to climb a engine the car noise would become louder. He agreed but pointed out the same principle applied to any motor vehicle. Mr Duck agreed that on 29 April 2011 his motorcycle had been modified by the changing of exhausts. He told me that he "put Cobra pipes" on his vehicle and a fuel management system which was supposed to provide him with better fuel economy.
Further in cross-examination Mr Duck admitted that he had not seen the white car anywhere by the time he dismounted from his motorcycle to assist Mr Hobbs because he had been looking at the horse rather than further along the street. There was then cross-examination directed to Mr Duck's recollection of where it was that the second defendant's vehicle made the U-turn. It was put to Mr Duck that it occurred much closer to Mr Hobbs than the intersection of Cooramin Street and East Street. Mr Duck said he understood what was being put to him but he believed that it was further on, "close to Souths (?) which is right on the corner where it, it's a wider road there again." The reference to "Souths" is a reference to the name of a family, obviously its dwelling, although the transcript typist was not quite clear about the spelling of the surname. The spelling of the surname is irrelevant, but all I know is the witness is indicating that in his view the U-turn was made both close to the property owned by that family, which was "right on the corner". But then he refers to the road widening again, and there is some widening before the actual intersection of Cooramin and East Street.
Mr Wilson put to the witness what otherwise his case was, but he was met with a string of disagreements. When cross-examined about the movements of the second defendant and Mr Moore after they returned to the scene, Mr Duck gave this evidence which I find of some assistance. "Q. She [the second defendant] got out of the car at the scene, did she? A. Yes, I think so, and then she went after the horse, I think. Q. She went after the horse? A. No. They were saying something about the horse. I was too busy worried about Mr Hobbs. I thought he was going to die in my arms, mate, so it all happened-- Q. Sorry? A. It all happened pretty quick, just as you said." Finally it can be noted that when Mr Duck was attending to Mr Hobbs after he had been injured, Mrs Hobbs phoned on Mr Hobbs' mobile phone out of concern for him, because the horse Buck had returned home without the rider.

Consideration of the facts

The last piece of evidence which I have quoted is in my view significant, because it shows not only the concern of Mr Duck for the plaintiff but also a valid reason why he was preoccupied with attending to Mr Hobbs rather than taking note of other events that were occurring around him. The one issue joined between Mr Duck and Mr Moore is where the second defendant made the U-turn. Mr Moore said it was immediately prior to the culvert, at least 100 metres away, that is, 100 metres east of where the second defendant's vehicle had passed the plaintiff. Mr Duck said it was much further to the east, close to intersection of East Street and Cooramin Street. However it is clear to me that Mr Duck's concentration, from the time he passed the speed signs, was on horse and rider and then on the rider who had been thrown from the horse, and then on the horse, which he had to swerve to avoid as the horse ran away after the plaintiff had been thrown. He dismounted from his motorcycle and turned his attention immediately to Mr Hobbs. Mr Hobbs was trying to get up. Mr Duck sought to prevent him from doing so, presumably to keep him either prone or supine or in the recovery position, so that if there had been any spinal damage it would not be aggravated; and the perception of Mr Duck was that the plaintiff was in extremis, Mr Duck was concerned about whether the plaintiff would survive or not. It appears to me likely that Mr Duck took little notice of where exactly it was that the white car was turning around, and in those circumstances I feel confident in preferring on this discrete issue the evidence of Mr Moore, which I have found helpful in a number of other areas.
A clue as to the relative positions of the plaintiff, the motorcycle and the defendant's car is in my view contained in the evidence of Mr Moore which I have previously quoted but need again to quote . The evidence was given in-chief by Mr Moore. It is at T355.36. The evidence is this: "Q. What happened once the U-turn was performed? Did you say something about returning to the-- A. As we've turned around by the time the car is facing down the hill, Hobbs is laying in the gutter, near the gutter, and Josh is, at that point, parking his motorcycle, and then by the time Holly has dropped me down near where Hobbs is, Josh is already assisting with Hobbs." I know that where the plaintiff came to rest was 5.5 metres to the west of the tree. From the tree to the culvert is 111 metres. As I have said already, one can make some allowance for the U-turn being made prior to the actual culvert and I have earlier today mentioned a figure of 100 metres from the tree. Assuming that 100 metres, at the time that the U-turn has been made, Mr Duck was parking his motorcycle near the plaintiff, there had to be a distance of at least 105.5 metres between where the second defendant's vehicle completed the U-turn and where the plaintiff had come at rest. The distance could of course have been greater, it could have been 110 metres.
During the time that the second defendant had taken to drive from the tree to completing the U-turn, Mr Duck had seen the accident happen, slowed down to bring his cycle to a stop in order to help Mr Hobbs, but in the process of doing that, had to swerve to avoid colliding with the horse. It appears to me that the distance between Mr Duck and Mr Hobbs at the time Mr Hobbs was thrown would have been roughly the same as the distance between the plaintiff and where the second defendant's vehicle made the U-turn, a distance of 105 or 110 metres. That is also consistent, in my view, with the distance between the speed signs and the commencement of the kerbing and guttering, being 110 metres, and there being a further 23.5 metres to the tree which takes one back to 18.5 metres from where the plaintiff came to rest; a total distance of 128.5 metres between where the speed signs and where the plaintiff came to rest.
It appears to me to be more probable than not that Mr Duck on his motorcycle was at least 100 metres, perhaps as many as 120 metres, distant from the plaintiff when he first saw the horse begin to buck and within seconds, the plaintiff had been thrown into the gutter on the northern side of Cooramin Street. The only evidence standing against that is the opinion of Mr Moore that when he first saw the motorcycle, it was some 50 metres distant from him but there may not be an inconsistency because by that stage, both vehicles, i.e., the motorcycle and the second defendant's vehicle were being braked in order for each to come to a stop. In any event, judging distance behind one is always difficult, especially if vehicles may be accelerating or decelerating. However, I am happy to rest with the finding that at the time that Mr Duck first saw the plaintiff, he was at least 100 metres away from the plaintiff, perhaps 120 metres away from the plaintiff and that the horse had already commenced to misbehave at that time.

Mr Jeffrey's opinion - noise of the motorcycle

The significance of the last finding I have made is relevant to the hypothesis advanced by Mr Jefferys, the defendants' expert, as to the likely stimulus for the misbehaviour of the plaintiff's horse, Buck, as the horse was being ridden by the plaintiff on the day in question. Mr Jefferys assumed, in accordance with his instructions, that the motorcycle was following the defendant's car and was 20 metres behind that car: see exhibit 1 [51]. Indeed, Mr Jefferys placed on the roadway, at the time he made an inspection, a white box which was said to be the position of the motorcycle when the defendant's vehicle passed the horse opposite to the tree. The photograph in question is contained in exhibit 1, appendix 4, photograph 4.
It is clear from the examination of Mr Jefferys in-chief that Mr Wilson was not confident about those instructions. This evidence was given by Mr Jefferys: "Q. I want you to assume that when Ms Fairall's vehicle passed the horse the motorbike was not where it's depicted in photograph 4, but back further by 50 metres. What, if any effect does that have on your opinion as to the likely cause of the accident? A. It has no effect. Q. Assume all of the same things but put the motorbike back a further 100 metres behind where that white object is in photograph 4, and when I say behind, I mean to the west? A. That would be starting to get where I would like to - I couldn't answer that without hearing what that would sound like, a hundred metres away. It's getting too far to give you an answer." The first of those questions may have been directed to the evidence given by Mr Moore that when he first saw the motorcycle it was 50 metres behind the defendant's vehicle but the effect of the question is asking the witness to postulate a distance of 70 metres between the horse and the motorcycle, the horse being opposite the tree, that is, the datum in this case. However, it is clear that the second question asked postulates that the motorcycle was 120 metres to the west of the tree which is consistent with my finding on the probabilities. At that point Mr Jefferys is unable to state that the probable stimulus for the horse's misbehaviour was the noise of the motorcycle. A little later in-chief Mr Jefferys said that at 120 metres he would not expect the horse to be concerned about the motorcycle. This evidence was clarified early in cross-examination when Mr Jefferys said that his earlier answer referring to 50 metres west of the box was based on an opinion that he had of what could be heard not at 70 metres but at 50 metres.
It appears to be that it is likely that Mr Wilson desired the witness to give an opinion as to whether the noise of the motorcycle was the likely stimulus for the horse's misbehaviour when the motorcycle was 50 metres from the horse. Likewise, the other question asked in-chief about the distance "a further 100 metres beyond where the white object is" was probably asking the witness to speculate what the horse could have heard when the motorcycle was 100 metres from the horse.
However, Mr Jefferys was qualified because of his experience in equine behaviour. Appendix 1 to Mr Jefferys' report, exhibit 1, is his curriculum vitae. That gives as his Areas of Expertise: "Riding, training and coaching". Beneath that heading are listed his Special Interests. They include equine training and equine behaviour. Mr Jefferys has no academic qualifications in this field and, indeed, his curriculum vitae provides no academic achievements in any field, not even a statement as to whether he obtained the Higher School Certificate. The opinion of Mr Jefferys about the noise generated by the defendant's vehicle is based on assumptions and speculation which the evidence does not establish. For example, appendix 7 to Mr Jefferys' report is headed "Screenshots from Suzuki Website". The first of those screenshots is a depiction of the Suzuki Boulevard M109R under which Mr Jefferys typed in this note: "Note the 4 large exhausts". In the photograph one can see four exhaust pipes. However, one will recall the evidence given by Mr Duck that his motorcycle had two exhaust outlets both on the right and although evidence was given that he had modified the exhaust system, there is no evidence that his motorcycle had, at any time, four large exhaust pipes. The second screenshot contains what has been traditionally called by lawyers "puff", advertising lauding the qualities of the motorcycle. That piece of puff commences with this sentence: "The award winning Suzuki Boulevard M109R launched to the top of the power cruiser market upon its introduction." After a number of further sentences of the like nature the website entry continues thus: "To award every one of your senses, the big V twin also produces a throaty, aggressive exhaust note - just what you'd expect from the hottest cruiser on the road." This piece of puff is supposed to establish the noise level emitted by Mr Duck's motorcycle. Vainly, Mr Wilson sought to adduce from Mr Moore details of the noise emitted by certain motor cycles, based on his "expertise" of having worked as a motorbike labourer servicing new motorcycles and old motorcycles and building new motorcycles at Wagga Motorcycles for 13 or 14 months. Mr Moore's training was as a welder. I refused to permit the defendants to adduce evidence from Mr Moore as to the level of noise emitted by various motorcycles. The appropriate person to do so would be an acoustic engineer, or an audiometrist or the like. Mr Jefferys' opinion extrapolates that piece of "puff" to sustain the proposition that it was more probable than not that the noise emitted by the motor cycle would have been the likely stimulus to cause Buck to misbehave rather than the noise emitted by the defendant's vehicle, and/or the speed of the defendant's vehicle.
It is also postulated on another false premise, and that false premise is that the horse Buck would not have been exposed to motor cycle noise, or, if one accepts that he were, not to the same extent as he was exposed to other vehicular noise, or, alternatively, that he had not previously been exposed to this particular type of motorcycle noise, especially as the motorcycle accelerated up the relatively steep incline on Cooramin Street. I do know that Buck was eight or nine years old at the relevant time. I know that he was considered to have been traffic trained. I know that he had been exposed in his work at the University to the noise of "dirt bikes" and to "quad bikes" and the noise emitted by dirt bikes is generally thought to be louder than the noise emitted by motorcycles driven on public streets. The noise of vehicles that can be driven on public streets is regulated by law but what the regulation is was not put before me or relied upon by Mr Jefferys.
The evidence of Mr Doughty assists in this regard. This evidence was given by him: "Q. I take it that horses can detect levels of noise that the human ear can't detect? A. They detect frequencies, yes, that we don't detect. Q. What's the lowest frequency that they can detect? A. I can't tell you the exact frequency off the top of my head, but they can tend to hear higher pitched noises than the lower pitched noises. WILSON Q. And horses obviously react based on sense, one of them we've discussed is obviously hearing? A. Hearing, yes. Q. Is it the case that noises that they're not used to or haven't heard before would alarm a horse more than a noise it's familiar with? A. In general terms, if they are absolutely unfamiliar with a noise, it would make them more aware of the noise, whether or not they're more likely to react is a little bit contentious. Q. What do you mean by contentious, speculative, or? A. Well, no, not speculative, because we don't know what noises a horse is familiar with, for example, I heard this morning that it was mentioned that Mr Hobbs' property is I think on Bomen… Road or something, that's on the way to the abattoirs and it is, so it hears lots of trucks. It also hears lots of cars and you know, I don't know how many people work at Bomen Abattoirs but there's also motorbikes, pushbikes, travelling livestock that use that as a stock route, so the horse may or may not have heard that particular motorcycle, but it's likely that he's heard all sorts of traffic before, not just cars and trucks."
Furthermore, I know from the evidence before me that the suburb of Bomen contains an industrial area. If one looks at appendix 6 to Mr Jefferys' report one can see nearby the plaintiff's residence a depot for Delta Livestock and Property, a depot for Rodneys Transport Service, a depot for AGnVET Services, a depot for Dickinson Trailers, a depot or workyard for Southern Oil Refinery which might also contain storage tanks, a depot for Nufarm Australia Ltd, a depot for Fulton Hogan as well as the Wagga Wagga Sales Yards. The abattoir is not marked on that exhibit but it is at the end of Bomen Road before the railway line, which can be seen at the bottom right-hand corner of that appendix to exhibit 1. In other words, not only was Bomen an industrial area where many types of vehicle would be driven, it would have also been one frequented by workers travelling to and from work who could drive any form of motor vehicle, ride any form of motorcycle and ride any form of bicycle.
It is speculative to say that Buck had not been exposed to motorcycle noise in the past. However, this aspect of the case is more easily answered by other parts of the expert evidence, in particular the evidence from Mr Doughty. Mr Doughty has the degrees of Master of Applied Science (Intensive Agriculture, Equine), a Graduate Diploma in Applied Science (Agriculture, Equine), a Graduate Diploma in Education and a Diploma in Applied Science (Agriculture). Between 1989 and 2015, he was the course coordinator for the Bachelor of Equine Science Degree at the Charles Sturt University, and also a lecturer in Equine Science. He now lectures in Horse Behaviour and Training Management, and Equine Locomotion and the Equine Industry. His report is succinct and short like all expert reports were once upon a time. In it he said this: "Horses are a flight animal, they are grazing animals with the principal survival mechanism of flight to escape predators. Horses have evolved with senses that facilitate this behaviour, in particular vision and heeling. Horses have a wide field of vision on each side of their body; immediately in front of the horse the animal has a narrow field of binocular vision [;] the rest is monocular vision and immediately behind the horse's head is a blind spot (appendix 1). The effect of this to the horse is that in front of its head the horse has good depth perception and can estimate distance, to the side of the horse in the broader area of monocular vision the horse has poor depth perception and a reduced ability to estimate distance. Directly behind a horse the horse cannot see at all, essentially when the horse is looking straight ahead the horse cannot see the rider on its back or anything else approaching in that zone. Horses have acute hearing and mobile ears; this allows the horse to detect noise and the direction of the origin of the noise. Both the hearing and sight of the horse assist the horse to detect a threat at a distance, evaluate the situation and react or not. In a grazing situation in the paddock a horse will detect movement or sound usually in the zone of peripheral monocular vision, the horse will raise its head, look directly at the possible threat, estimate the distance and the significance of the threat and react or not. The reaction of the horse may be to do nothing or simply walk away and keep an eye and ear out. However, if a threat managed to sneak up on the horse or suddenly appear in close proximity to the horse, the horses' reaction would be very different. The horse that is surprised or startled by a threat will move very rapidly away from the threat by reflex to establish a "Safe distance"; then stop, look straight at the threat and re-estimate distance and perceived danger and react. The first reaction is a reflex to escape; this reflex action is often referred to as "Shying". Bucking is a different behaviour of the horse to shying. In my experience and my opinion that bucking is associated with the horse attempting to escape and not having the immediate freedom to do so. The restriction may include slipping or stumbling, a rider and a number of other things. The buck is usually an attempt to break free so the horse can then escape. It is my experience and my opinion that a quiet trained horse under saddle is not likely to shy at a stationary or slow moving vehicle that is at a distance that does not cause the horse to feel threatened. In this situation the horse would take little notice of the car and at most may move slowly away from the vehicle. However if the same trained quiet horse under saddle was surprised by the vehicle for any reason such as speed of the vehicle, direction of approach of the vehicle, obscured line of sight between the horse and the vehicle, close proximity of the horse and vehicle, loud sudden noise or stones being thrown up from the vehicle tyres, the natural reflex action of the horse would be to shy. If in the attempt to shy the horse perceives that it is restricted from escaping it is my experience and my opinion that the horse may buck. The likelihood of the horse bucking is dependent on a number of variables that will determine just how startled the horse is (the motivation to escape) and how the horse perceives it is restricted from escaping. In situations of high motivation to escape and restricted opportunity to do so, the quietest of horses will buck and pursue other avenues to escape." The defence propounded by the defendants through Mr Jefferys is that what caused Buck to shy was the noise of the oncoming motorcycle. The horse's natural reaction is to run away from the perceived threat. Buck did not run away from the motorcycle: he, in fact, ran towards it. The horse's own behaviour as explained by Mr Doughty is inconsistent with the motorcycle's being the stimulus for the horse's misbehaviour.
Indeed, this in essence, was acknowledged by Mr Jefferys. At the end of Mr Robert's cross-examination of Mr Jefferys, I asked him some questions commencing at T415.01: "Q. Is it necessary to postulate that the horse was overfed to explain the behaviour? A. Your Honour, I, I can't see any other reason for the horse to behave in the extravagant way - like, for a horse to be frightened with his experience and Mr Hobbs' experience, I would have seen it being perhaps the horse trying to escape but Mr Hobbs controlling the circumstance. But for the horse to put its head down and buck, and not only buck but buck following the car that it was saying it was frightened of - it's, it's gone out onto the road behind the car - that's particularly unusual behaviour and, in my opinion, only, the only thing that can explain it to me is over-fuelling. The horse simply had this excess.. Q. The other scenario is even more bizarre. You want me to believe that it runs into the path of the oncoming motorcycle? A. Well, it's not necessarily the sight of the motorcycle.. Q. It's likely to run away, isn't it? A. Yeah, but, your Honour, it's not necessarily the, the sight of the motorcycle it's concerned with. There's a noise. The horse may not know the actual source of that noise so it, it can just hear a, a, a noise. It's frightened. It behaves unpredictably because it's frightened. But if it was frightened of - if I thought it was a bike or the car that was, it was worried about - and I said in my report, the visual sign of the bike, I don't believe that that, in itself, would have, - would have caused this, and I don't believe that either of these things would normally have caused it in the manner that it had, had the horse not had this excess fuel. I mean, this horse is, is very - he's never behaved like this. So, so why does suddenly something that's not that foreign to him cause this response? Q. A horse's hearing is more acute than the human ear, correct? A. Yes. Q. The human ear can generally identify the source of noise, yes? If I am on the side of the road and I can hear a motorcycle coming, I know whether it's coming from my left or my right? A. Generally, yes. Q. Generally, and so a horse with more acute hearing should be able to tell that? A. Again, I, I in, in that, in that particular area of the, of, of direction, I'm uncertain. I'm not a, I'm not, I don't want to argue. Q. They've got mobile ears, haven't they? A. Sorry? Q. They've got mobile ears.. A. They do, yes. Q. Which would enable them to turn their ear toward the sound. A. Yes. Q. To take it in? A. Yes. Q. They've got a better ability to identify the source of the sound than we have, because we have to turn our head? A. Yes. Q. Correct? A. Yes, but if we're saying.. Q. So if you postulate that the reason that the horse misbehaved, to use earlier terminology that's been used in this case, because of the noise of the motorcycle, and when the horse starts bucking it goes in the direction of, that is, towards the motorcycle and away from the car? A. Well, I respectfully, I don't agree with that, your Honour. Like the, the horse gone out onto the road. The bike is still coming up, up the hill. Q. Yes. Coming towards it and the car is going away from it? A. Yes. Q. Why would it head towards the source of the noise if it's a flight mechanism? A. I, I, the, it's, it's unexplainable, unexplainable, but so is the bucking. It's unexplainable." The commencement of that answer does not represent stuttering, it represents the witness using the first person singular pronoun pausing to think, using the first person singular pronoun again and pausing to think and other pauses and reiterations represent attempts to grasp with a concept that he had not previously considered.
Furthermore, in re-examination the witness gave orthodox evidence about what the horse ought to have done. That evidence is this commencing at T420.07: "What we would observe the horse most likely doing as it would start to be anxious, just the same as if when Mr Doughty had us looking at lions the other day, it would be quite frightened and looking to get away from the source of this issue and it may actually run away. It may just start to dance around or I heard the use of a horse freezing. Often a horse when it can't identify something initially, it will freeze momentarily until is assesses what it is and then it may either leave the scene, as in shy, or decide that whatever the stimuli [sic] is, it's okay and it will settle down." Again, Mr Jefferys was conceding that the horse, if frightened by a stimulus, would run away from it, hardly towards it. The opinion of Mr Jefferys asks me to ignore completely the survival mechanism developed by the horse during its period on this earth. If the horse were frightened by the noise of a motorcycle one would not expect the horse to run in the direction of the motorcycle because as the motorcycle approached the horse the noise generated by the engine of the motorcycle would increase. Nevertheless, the evidence clearly establishes that Mr Duck had to swerve to avoid the horse which was coming directly towards him. If Mr Duck had been a predator the horse would have been heading towards the predator and, therefore, likely destruction, completely inconsistent with the horse's survival mechanism.
Accordingly, may I sum up this area of the evidence by saying these things. I accept that the bicycle was at least 100 metres west of the plaintiff and his horse at the time that the horse commenced to misbehave. I think it more probable than not that the distance was more likely to be 120 metres to the west. On the evidence of Mr Jefferys that would not have caused Buck any concern and, therefore, it is unlikely to be the cause of the horse's misbehaviour. Secondly, the opinion of Mr Jefferys is based on an assumption as to the level of noise or type of noise emitted by Mr Duck's motorcycle which has not been established as being sufficient of itself to frighten the horse. The opinion of Mr Jefferys is based on some a priori view or assumption as to the level of noise emitted by Mr Duck's motorcycle based on some piece of "puff" on a website. Thirdly, were the noise of the motorcycle the relevant stimulus then Buck would not have run in the direction of that stimulus. The theory or hypothesis of the defence that the relevant stimulus was the noise of the motorcycle falls down completely.

"Overfuelling"

The next area of contention is the opinion of Mr Jefferys that Buck had been "over fuelled" and that was what led to his gross overreaction to whatever the stimulus was. The theory of "over fuelling" is contained in an article written by Mr Jefferys published in the magazine of the Equestrian Federation of Australia, in May 2006. The article was republished in November 2014 in a magazine known as "Horse Deals" which was aimed at addressing "problem horses". This is not an academic article. It has not been peer reviewed. When one reads it one appreciates that it is not an academic article based on research or investigation but rather a document based on the experience of Mr Jefferys in his having to deal with what he calls "problem horses".
Mr Jeffreys' curriculum vitae was discussed with him at the commencement of his evidence. He agreed that from 1975 for two years he worked at Randwick Racecourse working for the TJ Smith and Bart Cummings establishments, breaking in horses. For the following three years he worked in Texas in the United States of America, working for the President of the American Cutting Horse Association. Cutting horses are trained to work stock, but these days it is a sport rather than an actual practice. Cutting horses are trained to work cows. Mr Jefferys then returned to Australia and worked for Mr Rupert Murdoch and Mr Ken Cowley at Yass. Mr Cowley was interested in cutting horses and stock horses. He worked there for two years, setting up a training establishment. Mr Jefferys then returned to the Northern Beaches where he grew up, and he took on a family dry cleaning business but trained horses for himself. That commenced in about 1983. He did that until 1998, when he formed a new relationship with a lady who was a member of the Mounted Police Squad of the NSW Police, and his career developed thereafter. He told me that during the period from 1983 to 1998, he had worked with "problem horses" in the Northern Beaches. This evidence was then given: "Q. Small properties often owned by wealthy people, who have lots of daughters who like to ride horses? A. And lots of problems, yes, sir."
The article appears to me to be based upon that experience. It commences thus: "One of the main ingredients in training successful well behaved horses, is managing the amount of fuel or energy you put into them through their feed. There is no doubt that you will make life hard for both you and your horse by not balancing the amount of fuel that you put in, to the amount of energy you burn up on a daily basis. You don't need to be a nutritional expert to work this out, it's more common sense than anything else, yet many of us don't seem to recognise the importance of the benefits of getting it right. There are obvious differences between fat, fit and overfuelled horses. It's great to have a fit and healthy horse with nice muscle tone, but muscle is the result of a balanced diet in conjunction with an appropriate amount of exercise. Horses are like humans, you can't just feed them more to make them look great; a fat horse is just that, fat and therefore unhealthy. Overfuelling is quite different, a horse doesn't have to be fat to be over-fuelled, it's simply where the amount of fuel being put in exceeds the energy requirements of the horse at that particular time. Particularly with young horses, this can be a day by day monitoring issue as the horse's energy requirements will vary with the workload. It's like having a young hypoactive child and sending them off to school full of red cordial and chocolate. At best, the child will have trouble concentrating in class but more likely he will misbehave. This situation can be avoided in most cases, by simply reducing the fuels that are creating the excess energy. However if the same child is about to run a marathon, then fuelling him up is not only appropriate, but necessary in order to provide adequate energy for the event. There is no doubt that even the best-behaved, calm and reliable horses can totally change their personality and behaviour as a result of too much food or "energy", and often this is the start of our problems." I shall endeavour not to quote the whole of the article. I will merely quote some further extracts from it. "As horses become older and more experienced, they will generally learn to accept progressively higher levels of energy whilst being able to maintain their concentration and work ethic." "He has gone from his paddock to a stable, he is being worked less and fed far more than before, he is still the same beautiful horse you bought ten days ago, but now he is overfuelled." "We often find physical issues such as Founder, Laminitis and a variety of hoof and leg problems which result in unsoundness." There is no suggestion that Buck had any of the equine medical conditions outlined in Mr Jefferys' article. "The horse in the paddock not only had constant access to roughage, he is also constantly walking or working off energy. As the circumstances change, so must the feed." "It is obvious that one of the driving forces behind overfeeding is the fact that we are often more concerned with how a horse looks than how he performs or behaves." On the other hand, if you over-fuel the horse in an attempt to speed up the "beautifying" process for next week's show, it is likely you will be taking a longer and far more frustrating road. If you do get to the show, you are likely to have an uncivilised and inattentive horse that won't relax at the show. The problem here is, the horse is learning to be uncivilised and inattentive."
Buck was eight or nine years old. He was hardly a pony or a young horse. He had been used as a stock horse by Charles Sturt University. There is no suggestion that he had not had the experience to accept progressively higher levels of energy, and to maintain his concentration and work ethic. Buck was not a horse who had been brought from a country property, where he was kept in a pasture but was now confined to a stable. The evidence before me indicates that the feed that Buck had at the Charles Sturt University was similar to, or identical with, the feed that he had from the plaintiff; and as I sought to set out yesterday, his workload was to the best of the plaintiff's ability similar to that he had at the University. There is no suggestion that Buck had any of the equine medical conditions outlined in Mr Jefferys' article. There is no suggestion that Mr Hobbs was engaged in a process of seeking to "beautify" Buck for the purpose of displaying him at some pony show. At the age of 64, the plaintiff's age at the time of injury, it is unlikely that Mr Hobbs would have been grooming Buck to ride in a rodeo and there is certainly no evidence to that effect. The evidence of the plaintiff and Mr Doughty is that Buck was not over-fuelled.
The evidence of Mr Jefferys is, however, marred by a posteriori reasoning, induction rather than deduction. I must, however, state the context of the cross-examination which I am about to quote. As I have already found, the plaintiff's property was poor sandy soil and the cover in each paddock was 90% couch grass, which on the evidence of Mr Doughty is in fact a weed. Ten per cent of the pasture was, however, a mixture of clover and dry lucerne. Mr Jefferys was particularly concerned about clover, which he pointed out in spring, grows prolifically as nearly every householder in Sydney would know. Clover is a high energy food for a horse. The point that Mr Jefferys was seeking to make is that if clover suddenly grew prolifically in a paddock in which Buck was confined, he would by preference to eating other pasture, eat all the clover and that could result in his becoming "over-fuelled". Earlier Mr Jefferys had conceded that the growth of any grass or a like plant depends upon the nature of the soil, any fertiliser and the amount of moisture available. He accepted that the content of any particular grass is largely dictated by the soil in which it is planted and such fertiliser as is applied to it. He agreed that the rainfall would govern the rate of growth. He agreed that the majority of his work was in the Sydney Basin. However, he said that he was very familiar with the country around Wagga Wagga but then agreed that he couldn't make any comment on the nature of the soil where Mr Hobbs lived, that he had no experience of the annual rainfall for that area and that he didn't know whether 2011 was a year of drought or a year of plenty. He agreed with the proposition that for the sort of country where the plaintiff's property was, un-irrigated country, one horse took about four and a half acres to graze over a 12 month period. He also agreed that the growth of clover "exploding" depended upon the time of the onset of spring and the amount of rainfall in the particular environment. Mr Roberts then put this question to Mr Jefferys: "Q. I simply want to put to you that, if - and this is un-contradicted - less than 10% of the pasture in the one acre paddock that he grazed in at the time of this accident was clover…that would suggest that the clover hadn't exploded at that stage wouldn't it? A. Could I say, could I say this? Q. No, can you answer that? A. No, it, it doesn't suggest that to me and I'm basing this on, on the result of the horse, because I deal with this - I have this conversation regularly, your Honour, with people whose, who, who say "Look, the horse is, is not being over fed", and I say, "Well, you only have to look at the result to know that there's a problem here which is caused by energy". Quiet horses do not behave like this. Horses with no energy don't behave like this. So, I, I'm not, we can argue till we're black and blue that there was insufficient feed in the paddock; then why did the horse behave - have all this energy? You, you have to give some credit to the result and, and, as I say, I don't, I'm often talking to people about my suspicion here and they, they assure me the horse is, is not being fed, but often it's, it's not in a pasture situation; it's in a, a stable situation and I look at what they're feeding it and it turns out, yes, a little bit of this and a little bit of that, and that's the case here. We don't know exactly how much food was in that paddock but we know that the horse behaved in an over fuelled manner. Q. Can I just ask you this? You'd appreciate that your view on that subject is different from that of what Mr Doughty gave? A. No, I don't, don't. He agreed that over-fuelling is, is a possibility. He just, he just said that he didn't feel that the feed was, was sufficient. All I'm saying is it's hard to argue with the result." In other words, the reasoning process of Mr Jefferys is this; the horse's behaviour was completely out of character; the horse was burning up a lot of fuel, therefore, the horse had too much fuel; therefore the horse's feed must have been too high in energy; therefore there must have been a lot of clover in the paddock. I am afraid in the law we don't work that way.
The plaintiff was an expert and long-experienced horse rider. Mr Doughty is an expert in equine behaviour and he, like the plaintiff, was local to the Wagga Wagga area. They both knew the land, the local country, well. Neither the plaintiff nor Mr Doughty would accept that the horse was over fuelled given the description of his diet. I accept the opinion of Mr Doughty over that of Mr Jefferys. I again point out that his reasoning is a backwards process, rather than a reasoning process from finding facts and then deducing an outcome therefrom. He finds a result and then argues backwards to what must have been its cause. The simple answer to why Buck may have behaved the way he did is because the stimulus to which he was exposed was something that he had not previously experienced.

Why did the horse misbehave?

This case, to a large extent, turns upon the question of what caused the horse, Buck, to "misbehave", to shy in the way he did, and then buck and throw the plaintiff leading to the plaintiff's injuries. The horse shied in response to a stimulus. There does not appear to be any doubt about that on the evidence of both the plaintiff, the second defendant, Mr Doughty and Mr Jefferys. The next question is why did the horse then proceed to buck? Why the horse would buck is explained theoretically by Mr Doughty in his report and I have quoted the relevant passages of that evidence at [133]. He gave this oral evidence commencing at T241.23: "Q. And it's where the horse wants to shy, but feels that it cannot escape from the goad or the stimulus? A. Yeah, usually the horses that want to shy do shy. One of the things with riding a quiet horse and when you expect them to be a quiet horse is that riders often tend to give them a little more slack if you like than a horse that you're expecting to do something wrong. So, a horse that you're not expecting to shy it's just toddle along quietly. If something does startle them, often they have time to actually shy and start misbehaving or bucking or whatever option they choose before you have time to gather them up. Q. Well, this is what I'm getting at. Assume that the horse is spooked by a vehicle? A. Yes. Q. I don't want to buy into which vehicle it was, right? A. Yes. Q. But assume it was spooked by a vehicle. Now, if each vehicle was going along the carriageway and the horse and rider are on the opposite [side] of the road, right, so that the horse could have escaped away to its left? A. Yes. Q. Or go ahead in the opposite direction [to] where the traffic is going. What caused it rather than to take that sort of evasive action to buck instead, what makes it feel that it cannot escape, is it the fact that perhaps the rider was trying to keep the horse under control? A. That's the most probable." In other words, what was the likely cause of the horse's going on to buck was that the plaintiff was trying to keep it under control. The evidence of the plaintiff is that he tried to turn the horse to the left but obviously that is not the direction the horse wanted to take. He turned to the right and went off diagonally more in the direction of the motorcycle and away from the direction of the car. I accept that the most probable reason for the horse going on to buck was the action of the plaintiff in trying to keep the horse under control. Since Buck was known to be a quiet, well behaved horse I think it likely that the plaintiff adopted the position outlined in the first of the last set of answers I have quoted from Mr Doughty, that because Buck was a quiet horse, expected to behave quietly, he was given some slack by the plaintiff. However, the issue remains as to what caused Buck to shy in the first place.
Many possible causes of the horse's shying were considered in evidence. The first was the proverbial snake in the grass. I have already quoted at [60] the piece of evidence concerning that. Suffice it to say, that the evidence of both the plaintiff and Mr Doughty establishes that snakes are not a problem in the Wagga Wagga area in September of any one year. It is still too cold for snakes to be out and about. In cross-examination, Mr Doughty said that it was highly unlikely that a snake in the grass would cause Buck's reaction but he accepted that it was "an outside chance". Earlier Mr Doughty had said this about snakes. This evidence was given in the context of Mr Wilson's raising possibilities as to what the stimulus was that caused Buck to shy: "Q. Well, let's go, say, for example, to a snake? A. Yes. Q. Would that cause a horse to react? A. In a grazing situation, yes it does cause a horse to react, but again it is determined by how the horse sees it. If, for example, a horse sees a snake and snakes in the height of summer are very common in our paddocks around this area, the horses generally identify the snake, don't run away, but walk away as opposed [however] if a snake suddenly appears out of a hay feeder, under their nose, they might jump away, so, it depends very much on the situation in which they see the snake in." Mr Wilson then turned to the topic of rabbits but then turned back to the topic of snakes: "Q. The height of summer, sorry. Are you able to offer any comment about other times of the year, or? A. I am not an expert in reptiles, but I know when, from our occupational health and safety regulations at the university, when we become more aware of snakes than other times, you know, from a student point of view in particular. Q. You wouldn't disagree with the proposition that it would be impossible to come across a snake in Wagga in September? A. It's not impossible, but it's improbable at that date. We generally at the university start to take precautions from mid-October onwards, as opposed to mid-September onwards, but it's not impossible. Q. It's close to the October date though, isn't it, 24 September? A. 24 September is about a month away from mid-October."
As I have mentioned it, I shall now turn to the topic of rabbits. The following evidence was given with regard to that "wildlife": "Q. What about a rabbit, for example? A. If it sees a rabbit in a paddock, I don't believe, but again, if the rabbit happened to jump out of a feeder then that might startle the horse, but the presence of a rabbit in a paddock, horses are pretty familiar, de-sensitised. HIS HONOUR Q. It doesn't offer any threat to a horse, does it? A. No, that's right, it's another grazing animal."
Mr Doughty was also cross-examined about the horse taking fright or shying from a form of wildlife in the grass. He responded at T242.35 as to whether he was being questioned as to "ants or lions". Wildlife is a generic term. There could be many forms of wildlife in the grass. There might be an ant. There might be a tick. There might be a beetle. There might be a grasshopper. There might be a marsupial mouse. There might be a common rat. There might be a wombat. There might be a small feral cat. There might be a kangaroo. Wildlife covers a multitude of fauna. When asked in general terms about some type of wildlife in the grass, Mr Doughty replied clearly and appropriately it all depended whether one was talking about ants or lions. For the horse to shy at an animal in the grass, the perception would have to be that the animal could be some form of predator.
Another possible stimulus was the horse shying at its own shadow. The classical example of that, of course, is the horse known in Greek as Boukephalos, or in Latin as Bucephalus, or in English as Oxhead, the horse of Alexander the Great, which could only be tamed by Alexander himself, because he realised the horse was afraid of his own shadow, and armed with that piece of information, he was able to tame the horse. Mr Doughty agreed that horses sometimes jump at their own shadow, but said that it was infrequent and that they were de-sensitised to shadows daily, and therefore one can validly conclude that at the age of eight or nine years Buck would not have shied at his own shadow.
It was suggested by Mr Wilson to Mr Doughty, that a horse could shy at a thing such as a piece of paper and Mr Doughty agreed that that was a possibility. His answer was "It can" merely raises a possibility.
However, none of the cross-examination of Mr Doughty detracts from his view was that the most probable cause of the plaintiff's horse taking fright was the "vehicle" as distinct from the "motorcycle" (see T230.33). Of course there are many things that might have caused Buck to react in the way that he did. There are many possible stimuli. The Court is concerned not with possibilities, but with probabilities. Each of the two equine experts, the academic Mr Doughty and the practically trained Mr Jefferys, agree that the more probable cause of Buck's shying was one of the two motor vehicles here concerned, Mr Duck's motorcycle and the first defendant's motorcar. Earlier today, I pointed out that the defendant's argument about the motorcycle falls away when one considers where the motorcycle was at the time Buck commenced to misbehave, and because of the speculation as to its noise is exactly that, and because Buck himself ran in the direction of that alleged stimulus, rather than away from it. That leaves, as the more probable stimulus for Buck's overreaction, either the noise of and/or the speed of, the defendant's vehicle. If I may be permitted to do so, the evidence of the plaintiff puts a "bob each way" on noise and speed. The evidence of Mr Doughty also raises an issue as to the proximity of the defendants' vehicle to the horse (exhibit K quoted at [133] above). I believe I should consider the question of speed before I consider the question of noise but it appears to be appropriate that I do so tomorrow morning.

ADJOURNED PART HEARD TO WEDNESDAY 25 MAY 2016

HIS HONOUR: Immediately prior to my rising yesterday afternoon, I indicated that I was about to turn to the questions of speed, noise and proximity as the possible stimuli for the horse's misbehaviour. However, before I do so, I should indicate a further possible stimulus which occurred to me as I was deliberating on the facts of this case.
That stimulus is this. I do know that the plaintiff became distracted once the second defendant's motor vehicle had come into his sight on the eastern side of the speed signs, and he remained distracted until the motor vehicle was "in my face", to use the plaintiff's own expression. It is possible that the plaintiff himself was startled by the car at the end of his period of distraction and, for example, pulled hard on the rein of the horse, thus causing the horse to react in the way it did. The more I thought about the matter, the more that appeared to be plausible. However, there was not any evidence concerning that, nor was the plaintiff challenged in cross-examination by Mr Wilson to suggest that, and the end result is that it is outside of the dispute which I am called upon to arbitrate, such that if such a finding were made there would be a clear error of law. The parties have not put any such issue before me, although theoretically when I read the pleadings that was open to have been argued by the defendants. As I said, the plaintiff was not challenged that somehow his behaviour caused the horse to react in the way it did, and therefore it is not open to me to make any such finding.

Speed, noise and proximity of defendants' vehicle

I return then to the remaining issues of speed, and noise and proximity. Antecedent to that, however, is necessary to make clear some factual findings. It ought be clear from my discussion of the second defendant's evidence that I do not accept it. Much of it is implausible. It is inconsistent with the evidence not only of the plaintiff and Mr Duck, but also her own fiancée, Mr Moore. As I sought to indicate when analysing Mr Moore's evidence, there is more support in Mr Moore's evidence for the plaintiff's case than the defendant's case. With the utmost respect to Ms Fairall, her evidence in my judgment reeked of reconstruction and the theme of that reconstruction was self-exculpation. Whether that be deliberate or not, I need not determine. The only parts of her evidence that I can accept are those admissions contrary to her own interest.
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".
The second defendant, however, says that on seeing the plaintiff on his horse she slowed down before reaching him and moved over to the left-hand side of the carriageway. She also says that Mr Moore asked her why she was slowing down, and she said that it was because of the horse. Mr Moore has similar recollections. As I can give no weight to anything the second defendant says, the question is what weight should I give to Mr Moore's recollections? Again, this is a question which I have pondered. However, it is clear that Mr Moore was not a relevant actor. He was neither the plaintiff nor the driver of the vehicle involved, merely a passenger who had to have his attention drawn to the plaintiff by the second defendant. He appears not to have been overly concerned about the plaintiff's welfare. He was at the time in a close relationship with the second defendant, and has remained so ever since. Again I point out they are now affianced and living together in North Wagga Wagga. It is clear that Mr Moore would have been interviewed in early 2014, some two years and three months after the accident in question. Mr Moore's recollection is that he was interviewed when he was in either Cowra or Boorowa, when he was working for Hartrite. That evidence can be found at T363.09. I do know from earlier evidence that Mr Moore gave, that he was employed by Hartrite Hydraulics of Wagga Wagga from the end of 2013 to the commencement of March 2015. At T364.25 Mr Moore told me that he was interviewed in either late 2013 or early 2014. I believe it likely, therefore, that he was interviewed in early 2014. Not being an actor in the event, he had little reason to keep that event in his memory. Furthermore, one cannot ignore the subtle influence upon him, albeit subconscious, of his relationship with the second defendant and his ongoing contact with her. It would be extraordinary if, between being interviewed by a representative of the CTP insurer in early 2014 and giving evidence in May 2016, there had been no discussion whatever between the second defendant and Mr Moore about the current proceedings. That in itself is important.
I have come to the view that there has been some telescoping of events in Mr Moore's memory. He did not see the plaintiff on his horse. His attention had to be drawn to them by the second defendant. When did that occur? Was it before the second defendant reached the tree or was it as she drove past the plaintiff on her right and the tree on her left? She clearly said something after she passed the plaintiff which caused Mr Moore to look back over his right shoulder through the rear window of the vehicle to see the horse moving across the carriageway, bucking, which led to the second defendant's slowing down, coming to a halt and making the U-turn. I accept that Mr Moore attempted to tell me the truth as he remembered it. The question is how reliable was his memory given the circumstances I have just described?
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.
Ms Fairall said that she pulled to the left so that she was about a metre from the kerb but Mr Moore says it was between 2 and 3 metres from the kerb but certainly no more than three. He would have been in a better position to know that because he was closer to the kerb than the second defendant. I do know that the bitumen surface of the carriageway is 8.5 metres wide at the relevant point. I do know from the evidence of Mr Moore that the width of the second defendant's vehicle was 1.5 metres. Therefore, given that the second defendant's vehicle was 2 metres from the kerb, the right hand side of the car would have been 3.5 metres from the kerb. The centre line of the bitumen would have been at 4.25 metres. So if the second defendant's vehicle was 2 metres from the kerb, there would have been (0.75 + 4.25 + 0.30) which is 5.3 metres between the driver's side of the defendants' vehicle and the plaintiff, assuming the plaintiff to be "one foot" on the southern side of the bitumen. If the plaintiff was "18 inches" from the bitumen, that would indicate not 0.3 metres but 0.45 metres or a total distance of 5.45 metres between the right side of the defendant's vehicle and the plaintiff.
If, however, the second defendant's vehicle was say 2.5 metres from the kerb, then the right-hand side of the vehicle would have been 4 metres from the kerb, or 0.25 metres from the imaginary centre line; and if then one adds the other half of the road, 4.25 metres, and 0.3 metres to represent a foot, one comes to a total distance of 4.8 metres, and if the plaintiff was 18 inches from the side of the bitumen that is a distance of 4.95 metres. In other words, accepting the evidence of Mr Moore and placing the defendant's vehicle at merely 2 metres from the kerb, then there was some 5.3 to 5.45 metres between the second defendant's vehicle and the plaintiff. If one averages between 2 and 3 metres at 2.5 metres, the distance was between 4.8 metres and 4.95 metres. In rough terms therefore one can say that the second defendant's vehicle would have been 5 metres approximately from the horse and rider as it went past.
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.
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.
With the benefit of hindsight, the second defendant herself told me that when approaching a horse on the side of the road, a motorist should reduce speed and put between the motorist's vehicle and the horse as much space as is practicable. That evidence I believe I have already quoted but it needs to be reiterated. At T311.49 Ms Fairall agreed that she was conscious of the need to drive cautiously. She agreed that it may be necessary to slow considerably below the speed limit in certain circumstances to safely pass a horse and rider on a roadway (T312.26). She agreed that she should give the horse as much space as she could. She believed that it was "common courtesy" and what she would expect other drivers to do if she were riding a horse along the side of the road. That can be found commencing at T314.15.
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.
No one called any expert evidence to say what might have been her speed if she came to a standstill immediately prior to the culvert but clearly it was a much longer distance, well over 70 metres between where she would have me believe she stopped and where she actually stopped in order to make the U-turn. In referring to the propinquity of the right hand side of the second defendant's vehicle to the horse, I clearly have rejected the second defendant's assertion that the plaintiff was some 4 metres to the south of the bitumen at the time she passed him, i.e. I accept the evidence of the plaintiff and Mr Moore who are ad idem on that very point.
The remaining issue is the question of noise. This is a difficult area. There is no doubt that the second defendant's vehicle was not a powerful one. It was low-powered. Mr Moore was particularly unimpressed by its level of power. But that does not gainsay the fact that it could emit noise if the second defendant had applied maximum acceleration as she climbed the hill, as the evidence of Mr Moore suggests, the car would have been "revving" to the maximum as it climbed the hill and if the second defendant maintained that level of acceleration, it would have continued "revving" hard after it passed the crest. However, I accept that there was some easing off thereafter.
The evidence of Mr Moore and the second defendant is that the car did not make much noise and I should give Mr Moore's evidence weight in that regard. Furthermore, the plaintiff's evidence about noise is necessarily anecdotal. There was no attempt to compare the level of noise to some other level of noise that could be measured or which a "jury" might accept was extremely loud. In the circumstances, I am not satisfied on the balance of probabilities that it was the noise emitted by the second defendant's vehicle that caused the horse to react in the way it did.

Negligence

It appears to me, as I have already said, that the probabilities favour the speed and propinquity of the second defendant's vehicle to be the relevant stimuli as far as the horse was concerned. In my view, the plaintiff's conduct was negligent. By the standards of which she told me herself in her evidence, she was negligent. Clearly, I accept that she was exceeding the speed limit. That in itself is not evidence of negligence. It is evidence of a commission of a criminal offence but not necessarily negligence. Equally, it is well accepted that it is no defence for a motorist to say "Well I was under the speed limit at the time the accident happened". The speed limit might be 50 kph in a residential area, but if a motorist is travelling along a residential street at 50 kph and sees some young children playing with a ball on the side of the road - children of say 6 or 7 years without adult supervision - and perceives that there is a distinct possibility that a child could lose control of the ball which could roll onto the carriageway, and that the child might run after it, and there could be a collision between the motorist's car and the child, a motorist who did not slowdown in such circumstances, to say 40 or 30 kph would be held to have been negligent. One must drive to the conditions. It is no defence to say, well, I foresaw that but nevertheless I was entitled to drive at 50 kph and I continued to do so. The plaintiff has made out his case of negligence. The question which then arises, in my view, is whether there has been contributory negligence.

Contributory negligence

I must consider that position, even were I to come to the view that the misbehaviour of the horse was caused by the driving past it by the second defendant of the first defendant's vehicle, but there was no negligence. It is clear from the "blameless motor accident" provisions of MACA that the contributory negligence of a plaintiff in a "blameless motor accident" is a pro tanto defence to the claim for the "blameless motor accident". The key to this question lies in the factual finding that the plaintiff became distracted, for whatever reason the evidence does not disclose, after the second defendant's motor vehicle came to the east side of the speed signs, until the vehicle was "in his face", and an opinion expressed by Mr Doughty. At the conclusion of his report, Mr Doughty said this: "To reduce the likelihood of a horse shying in vehicle-related situations; The horse needs the time and opportunity to observe and assess the risk [and] move away from the vehicle. The vehicle should move slowly and move to the side to allow as much distance as possible between the horse and the vehicle. Reducing the vehicle's speed allows the horse time to assess the approaching threat, reduces the noise and reduces the likelihood of stones being thrown up that all may impact the horse. Providing distance between the horse and the vehicle reduces the perceived threat to the horse. Anthony Hobbs indicates that he attempted to move his horse away from the car toward the fence." Mr Doughty was unaware of the plaintiff's becoming distracted. Had he not become distracted and kept his vision on the car, he would have had a greater opportunity to turn his horse away from the approaching car, away from his closeness to the side of the road.
Under the common law and the Civil Liability Act 2002, the standard by which reasonable care is measured is an objective and impersonal one. Such was held by the High Court of Australia in Cook v Cook [1986] 8 CA 73:(1986) 162 CLR 376. We do not know what caused Mr Hobbs to become distracted. He himself does not know. However, objectively, if he had kept his eye on the vehicle, then he might have perceived its failure to reduce speed earlier, its failure to move as far left as possible, and he could have made earlier attempts than he did to ride Buck towards the southern side of the road reservation, towards the fence, away from the bitumen. In my view the plaintiff has been guilty of contributory negligence.
The relevant principles applicable to contributory negligence are succinctly stated by Basten JA in Gordon v Truong [2014] NSWCA 93 commencing at [13]. His Honour continues his review of the topic until [17]. I need not cite that further: it is well known. I am required to apportion between the negligence of the second defendant and the negligence of the plaintiff. This clearly is a weighing exercise where I must compare the contribution of each to the causation of the accident. In my view the greater responsibility lies with the second defendant. A motor vehicle is easier to control than a horse. A motor vehicle is a machine designed to be automatically at the control of its driver, both in acceleration, deceleration and in the direction the vehicle can take; that is, its steering. Horses are animate beings. They have minds of their own, and do not react rationally because they are not rational beings. That is not an observation of my own but it was drawn to my attention by Mr Doughty in his oral evidence. The greater ability of the driver of a motor vehicle to control his or her means of transport is greater than the ability of the rider of a horse to control his means of transport. In essence, the plaintiff's negligence is failing to maintain a proper lookout and attempt to take earlier evasive action. Although Mr Hobbs, when startled by the vehicle, made an attempt to turn his horse to the left, he could not get it to do so. If he had kept a proper lookout, he could have made an earlier attempt and perhaps that attempt would have been successful. However, there is of course, no guarantee that it would have been. Doing the best I can, I would apportion 70% responsibility for this accident to the second defendant and 30% responsibility to the plaintiff.

A "motor accident"?

I have been addressed both during the trial and on the day of addresses, 12 May, at some length by Mr Wilson about this incident not being a "motor accident" within the meaning of MACA and I have been given a large lever arch binder full of case law which Mr Wilson would have me consider. The cases largely concern "blameless motor accidents". In deference to the work done by Mr Wilson, I ought to deal with the submissions. The first is the legislative background. Section 3 of MACA sets out various definitions. The definition of "motor accident" is this: ""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." The same section provides a definition of "use" or "operation" but that definition is an inclusive one which is not currently relevant. Section 3A of the Act imposes general restrictions on application of the Act. It is in these terms: "(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. Note : Part 1.2 (No-fault claims-children and blameless accidents) extends the operation of this Act for certain limited purposes to motor accidents that have not in fact been caused by the fault of the owner or driver of the motor vehicle. Part 1.2 achieves this result by deeming such accidents to have been caused by the fault of the owner or driver of the motor vehicle in the use or the operation of the vehicle provided that: (a) the vehicle was involved in the accident and had motor accident insurance cover for the accident, and (b) the accident was not caused by the fault of any other person or the accident resulted in the death of or injury to a child. The early payment scheme provided for under Part 3.2 extends to all injured persons injured in a motor accident (including at fault drivers, pedestrians and other road users). The bulk billing arrangements provided for under section 54 extend to any person injured in a motor accident (even if the motor accident was caused, partly or wholly, by the fault of that person). (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." Mr Wilson also drew my attention to the objects of the Act which are to be used in aid of the proper interpretation of the Act. Section 5 is in the following terms: "(1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, (c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure, (d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales, (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities, (f) to ensure that insurers charge premiums that fully fund their anticipated liability, (g) to deter fraud in connection with compulsory third-party insurance. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and (d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability." The relevant sections concerning blameless motor accidents are these: "7A Definition of 'blameless motor accident' In this Division: '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." 7B Liability for damages in case of blameless motor accident (1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. Note: Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident. (2) If the blameless motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident, the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle. 7C Presumption that motor accident is blameless In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary. 7D Accident must occur in New South Wales after commencement This Division applies only in respect of motor accidents that occur in the State after the commencement of this Division. 7E No coverage for driver who caused accident (1) There is no entitlement to recover damages under this Division in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver. (2) The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if: (a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or (b) the act or omission was involuntary, or (c) the act or omission was not the sole or primary cause of the death or injury, or (d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event. 7F Contributory negligence This Division does not prevent the reduction of damages by reason of the contributory negligence of the deceased or injured person. Note : The contributory negligence of a deceased or injured child does not reduce damages of the kind to which the special entitlement to damages conferred by Division 2 applies. See section 7P. 7G Recovery of contribution from person actually at fault A person whose liability for damages in respect of the death of or injury to a person results from the person being deemed under this Division to be a person whose fault caused the death or injury is entitled to recover contribution in respect of that liability from a person (whether or not the driver of a motor vehicle) whose fault actually caused the death or injury. 7H No recovery by Nominal Defendant unless owner or driver actually at fault The Nominal Defendant is not entitled to recover any amount under section 39 from the owner or driver of a motor vehicle in respect of amounts properly paid by the Nominal Defendant in connection with the operation of this Division unless the motor accident concerned was actually caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. 7I Other entitlements not affected This Division does not affect any entitlement to damages apart from this Division."
Before going to the case law, I would merely make this observation and pleas. The 14 authorities to which Mr Wilson referred me were all provided to me in their original state. I was not provided with the authorised reports. The authorised reports assist the Court because they often contain head notes which save the reader having to try to ascertain what the facts were before considering the dicta. Counsel ought provide the Court the authorised reports rather than just the reports as they were originally delivered. The other plea that I make is that the reports should be provided to me in some logical order rather than in a "scatter-gun" approach. For my part, I like to read reports in chronological order because one can more easily work out the progression of the learning.
The first report to which I was referred was Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89. I gained little assistance from reading that authority as it is based on its own particular facts and on the proper construction of a Western Australia statute which bears little resemblance to the current legislation in this State.
The next decision to which have been referred is Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568. The facts of that matter can be gleaned from the head note in the Commonwealth Law Reports. My Associate was kind enough to provide the authorised reports to me. The head note summarises the facts thus: "An employer used a truck to transport airline containers. Each container weighed approximately one tonne. The truck was fitted with a mechanical unloading system which conveyed the containers to the rear of the truck from which they were removed by a forklift. The mechanical unloading system became inoperative. The employer directed an employee to convey the containers manually to the rear of the truck. In complying with the direction the employee was injured. The employee sued the employer for negligence, and obtained judgment, the employer conceding that it had been negligent in giving the direction to the employee. The employer claimed under his motor vehicle insurance policy for indemnity against its liability to the employee, contending that his injury was in the scope of the s 3(1) definition [in the Motor Accidents Act 1988] on the ground that it had been caused by a defect in the truck within the meaning of subpara (iv)." The High Court held that the CTP insurance policy did not respond to the risk involved in that case.
McHugh JA said this: "49. In pursuit of the Act's objects, Parliament has limited the scope of the Act by means of the concept of causation. The amendment requires a close causal connection between the use of the vehicle and the injury. Mere connection "in some way to the use of a motor vehicle" is not enough to bring an injury within the scope of the Act. The general class of injury described in the introductory expression of the definition of injury in s 3(1) still includes injuries sustained during loading and unloading operations. However, the four conditions in sub-pars (a)(i)-(iv) limit the class more generally described in the introductory expression. 50. The history of the legislation shows how unloading and similar cases were removed from the scope of the Act. The Act effectively replaced the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) ("the 1942 Act") as the compulsory third party insurance scheme for motor vehicle injuries after 1 July 1989. Since the introduction of the Act and the subsequent amendments to that Act, the circumstances in which an injury is governed by the Act have been qualified by a tighter definition of cause. Under the 1942 Act, the third party insurance policy was required to provide cover in respect of any injury that was "caused by or arising out of the use of the motor vehicle". Under that Act, most loading and unloading injuries fell within the "arising out of" limb, particularly where the only connection with the vehicle was that goods were being loaded into or unloaded from the vehicle. 51. The expression "arising out of" does not and never has appeared in the Act. Thus, the Act has a narrower scope than the 1942 Act. The words "caused by" are narrower than the words "arising out of" and require a closer causal connection between the event or activity and the injury than the latter phrase implies. However, the removal of the words "arising out of" from the operative provision of the Act does not operate to exclude all loading and unloading cases. Although "arising out of" permitted the 1942 Act to respond in circumstances of "attenuated causation", the Act still applies to injuries sustained during unloading activities, but only "if, and only if" the injury is "caused ... by" a defect in the vehicle. 52. As enacted, the Act effectively restricted claims in loading and unloading cases to circumstances in which the injury was "caused by the fault of the owner ... in the use or operation of the vehicle." The Act no longer covered loading and unloading cases where the injury simply arose out of the use of the vehicle. Despite the change in focus of the causal inquiry, as I have indicated the New South Wales Court of Appeal has held that the Act continues to apply to injuries sustained during loading and unloading operations. It applies where the injury was caused by the fault of the owner in the use or operation of the vehicle. However, the amendments bring about the result that the Act does not apply to injuries sustained during loading and unloading operations where there is no defect in the vehicle. 53. The above examination of the subject, scope and purpose of the Act suggests three matters that are relevant in the construction of Pt 6 of the Act. First, the Act does not provide a universal compensation scheme for all injuries sustained in connection with a motor vehicle. Second, cost-saving and the need to keep the scheme affordable are significant objects of the Act. Third, the Act has tightened the definition of injury by reference to its cause. These three matters indicate that, in the inquiry into the question of causality, an approach that limits the scope of the Act is preferable to one that would extend its application. This in turn suggests that a close causal connection is required for the injury to satisfy the requirement the injury be "caused ... by a defect in the vehicle". 54. In addressing the question of causality, metaphysical concepts such as "proximate cause" or "immediate cause" should be avoided, because they provide little, if any, assistance in resolving questions of causation under this Act. The task is to identify the factors that contributed to the injury and determine whether, for the purposes of obtaining damages under the Act, the injury was caused by a defect in the vehicle and not by some other factor. To paraphrase Lord Hoffmann in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd, causality is determined in light of the subject, scope and objects of the Act. At common law, injury may be "caused ... by a defect" even if the act or event in question did no more than materially contribute to the injury. The courts have given an expansive meaning to the word "cause". For example, material contribution may constitute a "cause" for the purpose of determining culpability and a contributory cause may constitute a "cause" for the purposes of tort law. Under the Act, however, there must be a finding that, of the entire set of circumstances that contributed to the injury, it was "a defect in the vehicle" that caused the injury. 55. As I pointed out in Henville v Walker, in some situations, the applicable legal framework requires a finding that no causal connection exists for legal purposes even though a physical connection exists between the thing complained of and the damage. In other situations, the legal framework may require a finding that a causal connection exists even though no such physical connection exists. Given the objects of the Act, if the fault of the owner merely provides the reason why the injured person acted, it will not be sufficient to establish a causal connection unless the purpose of the Act is to prevent persons suffering detriment in circumstances of the kind that occurred. Where several factors operate to bring about the injury to a plaintiff, selection of the relevant antecedent (contributing) factor as legally causative requires the making of a value judgment and, often enough, consideration of policy considerations. This is because the determination of a causal question always involves a normative decision." [Footnotes omitted.] The plurality, Gummow, Hayne and Heydon JJ said this: "On the other hand, the subject, scope and purpose of the 1995 Act, and the changes it made to the Motor Accidents Act, point in the other direction. The text of the new definition of "injury" manifests that legislative policy of restricting previous overbroad interpretations of the CTP insurance legislation. A stated object of the changes made by the 1995 Act was (s 2A(1)(b)) the reinstatement of a common law based scheme but (s 2A(2)(a)) to keep premiums "affordable" by containing "the overall costs of the scheme within reasonable bounds". A construction which promotes that object is to be preferred (s 2B(1)). The use in the definition of the emphatic and intensive phrase "if, and only if" directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of "injury" looks, for the CTP insurance system, to notions of proximate cause found in insurance law. That construction is consistent with the subject, scope and purpose of the 1995 Act." [Footnotes omitted.]
The next decision is Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529. Again the facts can be taken from the headnote in the Commonwealth Law Reports: "A labour hire company provided services to the occupier of a warehouse, at which containers of goods were unloaded. The warehouse occupier devised a system for the unloading of goods under which a container would be placed in the warehouse yard; labourers supplied by the hire company would place boxes from the container onto a pallet on a landing in front of the open container; and a forklift truck would go up a ramp to the landing, pick up the pallet, and reverse down the ramp. As the forklift went up the ramp it caused vibrations which were felt through the ramp, the landing and the container. A labourer working inside a container was injured when the vibrations generated by the forklift caused the boxes stacked inside the container to fall on him, causing injury. He sued the warehouse occupier and the labour hire company. The judge [Delaney DCJ] found against each and apportioned liability between them 75:25 respectively. The warehouse operator contended that the labourer's claim was a motor accident claim […] that damages should be assessed under s 69(1) of the Motor Accidents Act 1988, and that it was entitled to be indemnified against liability under s 9 and Sch 1. The judge held that the injury was not the result of a motor accident, and dismissed the claim for indemnity. On appeal to the Court of Appeal it was held that the occupier's fault was in the use or operation of the forklift and that the injury was caused as a result and during the driving of the vehicle: s 3(1)(injury) (a)(i)." The High Court of Australia held that the Court of Appeal was in error and restored the judgment of Delaney DCJ. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) said this: "26. On the facts of this case, the relevant respect in which the vehicle was being operated was that it was being driven. The findings of the trial judge negate any fault on the part of the driver. Those findings were accepted by the Court of Appeal. A challenge in this Court must be rejected for reasons given later. 27. It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded. […] 29. The flaw in the occupier's contention that the words before "if, and only if" are to be broadly construed, while any qualification on the breadth of the definition of "injury" as a whole is to be found in the causative considerations appearing after "if, and only if", is that the contention gives no weight to the word "in" in the expression "in the use or operation of the vehicle". As counsel for the occupier accepted, "in the use" here means with respect to, as a consequence of, or by reason of the use of the forklift truck in the circumstances. That in turn points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning which led to its deployment and which may have taken place at points of time and place remote from those of the injury. […] 31. The question is one of characterisation. The approach adopted by the joint judgment in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd to the construction of the definition of "injury" introduced by the 1995 Act suggests that the facts of this case are to be characterised as revealing no fault on the part of the owner or driver of the forklift truck in its use or operation. On that ground the appeal must be allowed. […] 33. It is true that the Court of Appeal proceeded on a construction of the definition of "injury" from which this Court is differing. However, the conclusion of the Court of Appeal in this case that the causal connection was made out does not appear wrong. On the assumptions which must be made in order to pursue this causation inquiry, the forklift truck was not only the predominant cause, but in a sense the sole cause, of the plaintiff's injury. Its generation of vibrations was proximate and immediate in both time and space. The matter can be tested by examining the position which would have arisen if the occupier had devised a system of work using the forklift truck, but with a device which prevented vibration; and if one day its employee, the driver, had negligently removed that device, so that vibration took place and injured the plaintiff in the manner in which he actually was injured. In that event there would have been "fault of the ... driver of a motor vehicle in the use or operation of the vehicle". And that fault could be said to have caused the injury during the driving of the vehicle. The removal of the anti-vibration device was a cause having a predominant, immediate and proximate character. That conclusion is not diluted or negated by the verbal device of describing what happened by interposing as many objects as possible between the forklift truck and the boxes which fell on the plaintiff as transmitters of the vibration."
The next decision is Nominal Defendant v Hawkins [2011] NSWCA 93. That was an unsuccessful appeal from a judgment of Armitage DCJ. A headnote has been provided by the Court of Appeal. It is this: "Facts At about 1.00 am on 20 January 2006, the respondent (Mr Hawkins) was cycling on the footpath along the Pacific Highway at St Leonards, having moved from the road to avoid the intimidating driving and boisterous passenger conduct of an approaching vehicle. The vehicle followed closely behind him, its occupants continuing to yell, beep and play loud music. Mr Hawkins was then struck by an object, and the vehicle accelerated away. Before he could regain control of his bicycle, Mr Hawkins collided with a piece of metal lying half way across the footpath which blew out his front tyre, causing him to strike a telegraph pole and sustain injuries. The car and its driver could not be identified. Liability of the Nominal Defendant depends upon whether the injury to Mr Hawkins was caused by the fault of the driver of the motor vehicle in the use or operation of the vehicle, within the meaning of s.3(1) of the Motor Accidents Compensation Act 1999 ( MAC Act): Injury: (a) Means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, if and only if, the injury is a result of and is caused during: (i) The driving of the vehicle, ... At first instance, the primary judge found on the balance of probabilities that the object was thrown from the vehicle, that the driver drove so as to facilitate the throwing, that this was foreseeably likely to injure Mr Hawkins, and that Mr Hawkins' injury was caused by the fault of the driver." The principal judgment was given by Hodgson JA with whom Sackville AJA agreed "broadly", giving further "observations". Beazley JA agreed with the reasons given by Hodgson JA and Sackville AJA.
Since the injury which was the subject of this case, MACA was amended. The relevant definitions are recited by Hodgson JA at [11] which is in the following terms: "There were relevant definitions in s 3 of "injury" and "motor accident": injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and (b) includes: (i) pre-natal injury, and (ii) psychological or psychiatric injury, and (iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses, an injured person means a person who suffers such an injury. motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person."
Commencing at [30] Hodgson JA commenced to discuss an injury caused by a drive-by shooting. In his opinion, such would not fall within the definitions contained in MACA. In his view, the relevant fault was not "in the use or operation" of the vehicle and the injury was not "a result of the driving of the vehicle". Commencing [32] his Honour said this: "32. One way of putting this is that the fault of the driver would lie in his/her being an accessory to the shooting, rather than in any driving-related fault. The driving would not be in any way faulty as driving , but would merely be the means by which the passenger was put in a position to shoot. Accordingly, the driver's fault should not be considered as being "in the use or operation of the vehicle", or (if and to the extent that it was so considered) as causing the injury; and the driving of the vehicle (and any fault involved) would not play a sufficient role in causing the injury to justify a finding that the injury was a result of the driving of the vehicle. 33. Having regard to what was said in the passage of Federico, to which the joint judgment in Allianz referred, I do not understand their Honours in that case to be altogether ruling out the possibility that there may be more than one cause which is sufficiently predominant or immediate or proximate to satisfy the requirements of causation in the definition of "injury" in the MAC Act. However, clearly in my opinion they are saying that the fault in the use or operation of the vehicle, and the driving of the vehicle (in those cases where par (a) of the definition of "injury" is in question), must have a very substantial causative role; and that in the former case its character as fault must be related to the actual use and operation of the vehicle as such, rather than merely as fault (with the aid of the motor vehicle) in facilitating a dangerous or criminal act by a passenger unconnected with the actual driving or operation of the vehicle. 34. At the other extreme, to manoeuvre a motor vehicle, with the intention that the actual manoeuvring of the vehicle (say) by cutting in on a cyclist or unreasonably crowding a cyclist so as to harass and/or intimidate the cyclist and thereby to cause the cyclist to crash and be injured, would in my opinion clearly be fault in the use and operation of the vehicle causing the injury, and the injury would be a result of the driving of the vehicle, within the meaning of the definition of "injury" in the MAC Act."
His honour then went on to summarise interstate cases. One of them was Mani v The Nominal Defendant [2002] QSC 152. At [38] his Honour said this: "In Mani, the plaintiff was driving a van along a road when the driver of, or a passenger in, an unidentified motor vehicle travelling in the opposite direction threw a rock at the van, smashing the windscreen and injuring the plaintiff. It was not alleged that anything in the manner of the driving of the unidentified vehicle contributed to the injury. The plaintiff claimed pursuant to the Motor Accident Insurance Act 1994 (Qld) which relevantly applied "to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury ... is a result of ... the driving of the motor vehicle ... and ... is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person". Helman J in the Supreme Court of Queensland held that the throwing of the rock was not a result of the driving of the unidentified vehicle, which was merely the occasion for the throwing, and that the two activities were discrete, though contemporaneous, whether or not done by the same person. In my opinion, a similar result would follow under the MAC Act, for the same reasons I have given in relation to Ross." In the following paragraph, his Honour pointed out that in his opinion, a similar result would follow under the New South Wales legislation, MACA.
His Honour returned to the case currently before him at [42]. His Honour said this: "42. Returning to the present case, there is driving fault, that is, intentionally driving in such a way as to harass Mr Hawkins, with the use of the horn and placing and slowing the vehicle so that Mr Hawkins could be harassed by the proximity of the vehicle and the yelling from the people inside. In my opinion, the question arises whether the throwing of the object can properly be considered as a part of or incidental to the harassing driving of the vehicle, or whether it is properly considered as an occurrence which is in a substantial way distinct from or independent of this harassing driving of the vehicle. If the former, I think the definition of "injury" in the MAC Act would be engaged; if the latter, I think it would not be. 43. With some hesitation, I think the former is the preferable view. It is true that the throwing of the object was a substantial escalation of the harassing conduct. It is also true that on Mr Hawkins' evidence, the harassment had not previously prejudiced his control of his bicycle, whereas being hit by the object did so. Nevertheless, given the finding as to the driver's knowledge, I think that the throwing of the object was not only contemporaneous with but part of and incidental to the harassing manner in which the vehicle was driven. 44. In the words of the definition, there was fault in the use or operation of the vehicle, which was not merely a fault in putting the thrower of the object in a position to do so: there was fault in the manner of driving so as to harass the plaintiff, and the throwing of the object was part of and incidental to this harassing driving. In those circumstances, I think it can be said that Mr Hawkins' injury was caused by the driver's fault in the use or operation of the vehicle, and was a result of the driving of the vehicle, within the definition of "injury" in the MAC Act."
Sackville AJA said this: "67. The throwing of the object from the vehicle was an integral part of the harassing and intimidatory course of conduct in which the driver of the vehicle engaged. The course of conduct continued for a period of time and was specifically directed at Mr Hawkins, another road user. This is not a case, for example, where the driver merely drove the vehicle to a point at which a passenger could throw an object (or discharge a firearm) with some degree of accuracy at another person. 68. Mr Rewell nonetheless submitted that the injury sustained by Mr Hawkins was not caused by the fault of the driver in the use or operation of the vehicle within the meaning of the definition of " injury " in the MAC Act . However, as Hodgson JA has pointed out, the plurality in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568, did not say that the definition of "injury" assumes that there can only be one cause of an injury and that that cause must be the fault of the owner in the use or operation of the vehicle. The plurality's reasoning (at [102]) directs attention to " notions of predominance and immediacy rather than to more removed circumstances ". This suggests that the Court must make a judgment as to whether fault in the use of operation of a vehicle is a sufficiently predominant and immediate cause of the injury to satisfy the statutory definition. 69. The plurality in Allianz also said (at [102])) that the definition of injury looks to " notions of proximate cause " found in insurance law (compare McHugh J's criticism of the use of " proximate cause " as a criterion (at [54])). It can be seen from the judgment of Allsop P in McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28, that the authorities have accepted that there can be more than one proximate cause of an event for the purposes of insurance law. His Honour gave as examples cases in which there were two causes of a loss which were " concurrent and interdependent in the sense that neither would have caused the loss without the other " (at [97]). 70. One way of approaching the present case is to conclude, as Hodgson JA does, that the passenger's throwing of the object can properly be considered to be part of or incidental to the actions of the driver in harassing Mr Hawkins. For the reasons I have given, I think that the throwing of the object is correctly seen as an integral part of the driver's course of conduct in controlling the vehicle in a manner designed to intimidate and harass Mr Hawkins. On this analysis, it is impossible to separate the driving of the vehicle from the particular act of the passenger which, as the driver intended, caused Mr Hawkins to be struck by the object. 71. An alternative approach is to apply notions of " proximate cause " in insurance law, as the plurality suggests in Allianz . On this approach, the actions of the driver of the vehicle and the actions of the passenger were concurrent and interdependent causes of Mr Hawkins being struck by an object thrown from the vehicle. The passenger could not have managed " successfully " to throw an object at Mr Hawkins without the driver's participation in the course of harassment and intimidation. Nor could the driver have managed to strike Mr Hawkins with the object, as the driver intended, without the passenger's participation in the course of harassment and intimidation. 72. On either approach, in my opinion, the definition of " injury " in s 3(1) of the Motor Accidents Compensation Act 1999 (NSW) is satisfied." (Emphasis in original.)"
The next decision is that of the Court of Appeal in Leach v The Nominal Defendant [2014] NSWCA 257. The plaintiff in that case was a passenger in a motor car and was the subject of a drive-by shooting. There was, however, a "twist" to the theoretical case considered by Hodgson JA in Nominal Defendant v Hawkins. The facts are set out in the first two paragraphs of the judgment of McColl JA: "1. On 28 November 2008 at about 9.50pm the appellant, Mr Steven Leach, was a passenger in a Mitsubishi Magna sedan. A white Holden Commodore struck the Mitsubishi causing its rear to move slightly to the left. Gunshots were then fired from the Holden into the Mitsubishi. The appellant was shot and suffered serious injuries. The driver of his car drove into a service station and stopped the car. 2. The Commodore was driven away. It was later discovered burnt out. It had been stolen. It was also uninsured. The driver was never identified." The case was determined by Kearns DCJ, who entered a verdict for the defendant. The appeal was dismissed. At [9] McColl JA pointed out that it was common ground that the appellant had to pass through the gateway to MACA found in s 3A which her Honour then quoted. Commencing at [40] her Honour said this: "40. Both parties accepted that Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 ("Allianz") was the seminal authority for determining the question whether the appellant's injuries were caused in a manner which fell within s 3A of the MAC Act. This was even though Allianz concerned the question whether an employee's back injury fell within the definition of "injury" in s 3(1)(a)(iv) ("such use or operation by a defect in the vehicle") of the Motor Accidents Act 1988 (NSW) (the "MAA Act"). Allianz was discussed in Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 ("GLG") which also concerned s 3(1) of the MAA Act and to which I refer in more detail below. Tobias AJA held in Whitehead (at [41]), that the definition of "injury" in the MAA Act considered in GLG was relevantly identical with s 3A of the MAC Act. That is also the case for present purposes. While there are some differences between the language of the provisions considered in Allianz and GLG, they are not presently material. 41. This case arises under the MAC Act. The structure of that Act differs from that of the MAA Act. The gateway to recovery of damages under the MAA Act was s 69 which picked up the definition of "injury" in s 3. That definition was an aid to the construction of s 69, whose meaning depended on the context and object of the substantive enactment: Allianz, per McHugh J (at [12]). 42. The MAA Act definition of "injury" was on all fours with the definition of "injury" in the MAC Act until 2006. In that year, the MAC Act was amended by the Motor Accidents Compensation Amendment Act 2006 (NSW) (the "2006 Amendment Act"). The 2006 Amendment Act relevantly inserted the present definition of "injury" and "motor accident" as well as s 3A. The insertion of s 3A was "intended to clarify that the Act applies to death or injury caused in an accident occurring during the driving of the vehicle, a collision or the vehicle running out of control and not to an injury that arises gradually from a series of incidents": Second Reading Speech, Motor Accidents Compensation Amendment Bill 2006 (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 9 March 2006, at 21404)." Her Honour then considered at length, the decision in Allianz and continued thus: "52. The effect of Allianz is relevantly as follows. First, to fall within s 3A, the appellant has to establish that his injury was caused by the fault of the driver in the use or operation of the Commodore: McHugh J (at [19]). Secondly, the appellant must satisfy the temporal criterion that his injury was sustained during either the "driving of the [Commodore]" or "a collision with the [Commodore]". (It was not suggested that the Commodore ran out of control: s 3A(1)(c) - some reference was made to the driver of the Mitsubishi slightly losing control (primary judgment (at [7])), but s 3A(1)(c) looks to the at fault vehicle losing control). Thirdly, the appellant has to satisfy the causation criterion, that his injury was sustained as a consequence of those events: Allianz (at [94]) per Gummow, Hayne and Heydon JJ; see also McHugh J (at [17] - [18], [24); Callinan J (at [131]). This means that he had to establish that those events were the proximate cause of his injuries, guidance for which is to be found in insurance law: Allianz (at [102]). 53. In the law of insurance the words "proximate cause" and "direct cause" came to be used interchangeably: see generally Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; (2005) 13 ANZ Insurance Cases 61-643 ("Lasermax")(at [39] ff) per McColl JA (Ipp and Tobias JJA agreeing); Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; (2009) 54 MVR 111 ("Zotti") (special leave granted ([2010] HCATrans 62), but matter discontinued) (at [49] - [51]) per Allsop P (McColl JA agreeing). In that context, "the proximate or direct cause of an injury" is not "a cause of the cause, or the mere occasion of the injury": Australian Casualty Co Limited v Federico [1986] HCA 32; (1986) 160 CLR 513 (at 521) per Gibbs CJ. 54. As discussed in Lasermax (at [44]), "... 'The qualities of reality, predominance and efficiency of a cause prevail over proximity in time in determining what cause or causes are proximate.' Hence the proximate or direct cause is described as the 'dominant' cause ... 'that which is proximate in efficiency' and 'the real effective cause'". After considering further case law, her Honour said this: "70. In reaching my conclusion, I take into account the factors to which the appellant asserts the primary judge failed to give sufficient weight (see above). Those factors seek to emphasise the role of the impact of the Commodore on the driving of the Mitsubishi. In my view his Honour did not fail to give those factors adequate weight. Rather, he concluded (at [14]) that "The driver drove the Commodore in a manner that facilitated the firing of the weapons at the plaintiff". However, his Honour also found (at [32]) that "[t]he firing of the guns in this case did not need the changing of lanes and collision for its occurrence". That finding was not expressly challenged in the notice of appeal, although the tenor of the appellant's submissions, directed as they were to emphasising the fault of the driver of the Commodore most probably should be seen as at least an implicit challenge. Ultimately, I do not think anything turns on this. 71. There can be no doubt that there was "fault" as defined in the MAC Act on the part of the driver of the Commodore. Whether deliberately so as to constitute an assault (because of a pre-conceived plan to destabilise the Mitsubishi) or negligently (getting too close when trying to position the Commodore in a position relative to the Mitsubishi from which the shooters could fire accurately) the driver brought the Commodore into contact with the Mitsubishi. It does not, however, assist the appellant's argument to find that the collision may have constituted an assault. 72. I would also accept that the appellant's injuries satisfy the temporal criterion, that is to say that they were sustained during either the "driving of the Commodore" or the "collision" with the Commodore. In the latter respect Zotti supports the proposition that the collision extended at least until the Mitsubishi came to a stop, albeit that the impact was clearly only a momentary occurrence. 73. However, in my view, the appellant's injuries were not "caused by the fault ... of the driver in the use or operation of the Commodore' nor, to put it another way, were his injuries sustained as a consequence of those events: Allianz (at 94]). Rather, the gunfire was the "dominant cause" or that which was "proximate in efficiency" and "the real effective cause" of his injuries. The "fault" of the driver of the Commodore in colliding with the Mitsubishi was the mere occasion of the injury. That collision, as is apparent from the Police report of the damage to the Mitsubishi and photographs of the bumper bar, caused "minor damage". As soon as Mr Russell realised shots were being fired into the car he accelerated and was able to drive away. The shooting was, in my view, "in a substantial way distinct from or independent of" (cf Hawkins (at [42] per Hodgson JA; at [67], [70]-[71] per Sackville AJA) the driving fault. The primary judge did not err in distinguishing Hawkins."
Gleeson JA agreed with both McColl JA and Sackville AJA. Sackville AJA said at [85] this: "The decision in Nominal Defendant v Hawkins [2011] NSWCA 93 (Hawkins) is distinguishable from the present case. In Hawkins, the plaintiff was riding his bicycle when he was harassed by the driver of an unidentified motor vehicle. The plaintiff was hit on the shoulder by an object thrown from the motor vehicle. The throwing of the object at the plaintiff was found (at [67]) to be "an integral part of the harassing and intimidatory course of conduct in which the driver of the vehicle engaged". The harassment of the plaintiff in Hawkins was not part of a pre-determined plan in which the motor vehicle played an incidental part in the infliction of harm. The plaintiff was apparently randomly targeted by the occupants of the motor vehicle because he happened to be riding his bicycle on the roadway near them. In other words, he was targeted because he was a fellow road user. Moreover the plaintiff's injuries were not directly inflicted by the object thrown at him. He sustained his injuries when he lost control of the bicycle as he attempted to take evasive action to escape the harassment."
The next relevant case is Axiak v Ingram [2012] NSWCA 311 which was the first decision of an appeal court on the "blameless motor accident" provisions of MACA. The facts are set out succinctly in [5] and [6]: "5. The school bus carrying the first and second appellants stopped on the western side of Sackville Road opposite the family home at about 4 o'clock in the afternoon to enable the girls to disembark. The evidence established that when the bus pulled to a stop, three quarters of it was still on the bitumen surface of the road, the other quarter being on the dirt shoulder. Having alighted from the bus, the sisters walked around to its rear. A vehicle driven by a Mr Daniels was following the bus and came to a halt behind it as there was insufficient room for it to overtake the stationary bus without crossing over the double unbroken lines down the centre of the road. After the girls had alighted, the bus then pulled away until it was once again entirely on the sealed part of the roadway. Mr Daniels gave evidence, accepted by the primary judge, that the two girls darted behind the back of the bus between its rear and the front of his stationary vehicle. They were running, the first appellant preceding the second appellant. 6. The respondent, Mr Ingram, was driving along Sackville Road in a southerly direction. On rounding a curve in the road he saw the bus and slowed from the speed limit of 80 kph to 40 kph. It was common ground that any view of the girls that he might otherwise then have had was completely obscured by the bus. Accordingly, his first view of them was when they emerged from behind the bus. The first appellant, who was slightly ahead of her sister, ran straight in front of the respondent's vehicle. Although he attempted to brake, he could not get his foot onto the brake before the first appellant collided with the extreme right of the bonnet of his vehicle. She was propelled onto the bonnet, struck and fractured the extreme right hand side of the upper part of the vehicle's windscreen and then slid off the bonnet to land on the side of the road beside the vehicle. She sustained horrific injuries."
At [10] Tobias AJA, with whom Beazley JA and Sackville AJA concurred, pointed out that there was no issue at first instance that the motor accident was not caused by the fault of the driver of the relevant motor vehicle. The issue that arose was whether the motor accident in question was caused by "the fault of any other person". In essence, the contention was that one of the plaintiffs herself was at fault. The question therefore became whether the (contributory) negligence of one of the plaintiffs excluded her from the operation of the blameless motor accident provisions.
Tobias AJA commenced to set out the statutory provisions at [21]. At [25] he made a number of observations about a number of the statutory provisions. About s 7F his Honour said this: "[…] section 7F refers specifically to the "contributory negligence" of the injured person, thereby possibly distinguishing that form of non-tortious negligence from tortious negligence; given that s 7F specifically deals with "contributory negligence" in the context of a case where the definition of "blameless motor accident" in s 7A is satisfied, it might be said that contributory or non-tortious negligence was not intended to be included within the definition of "fault" which is confined, so the argument runs, to tortious negligence."
At [58] his Honour said that the stated purpose of the Act which amended MACA was to provide CTP scheme entitlements to persons injured in motor vehicle accidents were there was "no fault" in the sense that the driver of the motor vehicle involved in the motor accident could not be made tortiously liable to the injured person for damages. His Honour went on to say this: "62. For a better understanding of the definition of "blameless motor accident" in s 7A, it is appropriate, as McHugh J observed in Kelly at [103], to read the words of the relevant definitions into the substantive enactment and then construe the provision as so extended. Relevantly, s 7A, when extended by the definitions of ""motor accident" and "fault" would then read as follows: 'blameless motor accident means an … accident involving the use … of a motor vehicle that causes … injury to a person where the … injury is a result of and is caused during the driving of the vehicle . . . [but] is not caused by the negligence or any other tort of the driver of [the] vehicle involved in the accident or the negligence or any other tort of any other person.' The evident purpose of the addition of the words "and not caused by the fault of any other person" is to render Division 1 inapplicable to a situation where, although the motor accident is not caused by the "fault" (as defined) of the driver of the relevant motor vehicle, the accident is caused by the "fault" of a third party. Where such fault exists, the injured person would be entitled to pursue that third party for damages in the usual way. In those circumstances there is no necessity for the injured person to claim damages pursuant to Division 1 of Part 1.2 as the tortious third party can be made liable for damages which would not be modified under Chapter 5 of the Act, subject only to any applicable provisions of the Civil Liability Act 2002. In my opinion, such an approach is consistent with the purpose or object of the no fault provisions of Division 1 of Part 1.2 of the Act as explained by the Minister in his Second Reading Speech. I find the "definition" of "blameless motor accident" as provided by his Honour in [62] of great assistance.
His Honour then went on to say this: "In my opinion, the respondent's submission cannot be sustained. This is because the phrase "any other person" cannot be divorced from its context. Once it is accepted that the expression "fault of any other person" refers only to the tortious conduct of that person, it must follow that the "person" referred to cannot include the injured person whose "fault" in the form of non-tortious contributory negligence is excluded from the definition of "blameless motor accident" in s 7A. That conclusion is reinforced once the words of the definition of "fault" are inserted into the definition of "blameless motor accident" in the manner suggested by McHugh J in Kelly, at [103] (see at [62] above). When the definition of "blameless motor accident" is read this way, it is evident that the expression "any other person" excludes the person who has been injured." It necessarily follows in the present case that the contributory negligence of the plaintiff, had this been a blameless motor vehicle accident, would not have excluded him from claiming damages in respect of the blameless motor accident but such contributory negligence would be taken into account, a proposition to which I have already adverted.
The next decision to which I referred was that of Davis v Swift [2014] NSWCA 258. The Court of Appeal conveniently provided a headnote. It is this: "On 20 March 2009, the appellant pedestrian was injured when a motor vehicle driven by the respondent ran over her right foot after the appellant attempted to cross Vincent Street in Cessnock. Vincent Street has four lanes running in a north-south direction. At the relevant time, each kerbside lane was occupied by parked vehicles. The respondent's vehicle was parked on the eastern side of the street facing south. The appellant decided to cross the street from its eastern side. She stepped off the kerb in front of the respondent's parked vehicle and walked to the middle of the road. At that point, traffic travelling in the outside northbound lane made it unsafe for her to proceed further. The appellant ran or stepped backwards very quickly, without looking, into the southbound traffic lane and into the path of the respondent's vehicle. In the seconds before this happened, the respondent was sitting in her vehicle, with the engine on, preparing to leave the kerb. The respondent looked over her shoulder and then looked forward. As she did so she turned her steering wheel to the right and slowly began to drive from the kerb. She then felt a bump that was the appellant colliding with the front of her vehicle and catching her right foot under the front driver's side wheel. The appellant brought proceedings against the respondent for negligence and, in the alternative, on the basis that her injuries were the result of a "blameless motor accident" within Division 1 of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). The primary judge found that it was a "blameless accident" and assessed contributory negligence at 100 per cent."
Leeming JA and Adamson J concurred with Meagher JA. Under the heading "A 'blameless accident'" his Honour said this: "33. The circumstances in which an incident or accident may be a "blameless accident" are varied. They include (as the Second Reading Speech makes clear) where the driver has been incapacitated from continuing in careful control of the vehicle because of some unforeseen and immediately debilitating illness or medical condition. Specific examples are provided by the facts in Smith v Lord [1962] SASR 88 (where the driver suffered a blackout and lost control of his vehicle which then collided with a stationary motor vehicle) and in some of the cases referred to by White J in Leahy v Beaumont (1981) 27 SASR 290 at 294 - 296. 34. The owner and driver may be without fault in circumstances where the driver loses control because of some catastrophic failure of a component of the vehicle which involves no negligence in its care and maintenance. They may also be without fault because an event or incident on or in the vicinity of the roadway (such as an animal running on to the roadway) results in the driver losing control, or having to take evasive action, and causing an incident or accident involving injury. 35. In these cases, notwithstanding that the driver may have lost control of the vehicle or otherwise driven in a way that caused an accident and injury, there was no fault involved in his or her doing so. On the other hand, any person injured as a result of that accident may, by his or her lack of care, have contributed to its occurrence and the injury which it caused. 36. As was the position in Axiak, the position in this case is that the "blameless accident" is not one in which the driver has failed to continue in careful control of his or her vehicle, or had to take evasive action which resulted in the accident. In each case, there was no driving that in other circumstances would have involved fault. There was, however, contributory negligence on the part of the person injured."
It is convenient at this time to refer to the decision of Nettleton v Rondeau [2014] NSWSC 93, a decision of Hoeben CJ at CL. This is one of the three decisions that was referred to me by Mr Roberts but a decision that was not referred to me by Mr Wilson. The facts of the case can be found at [2]: "The plaintiff alleges that at approximately 1.30pm on 14 January 2012 he was riding a bicycle east in Lauderdale Avenue, Fairlight when a motor vehicle driven by the defendant emerged from a driveway from behind parked cars across the eastbound traffic lane. A collision between the plaintiff and the motor vehicle resulted, rendering the plaintiff a complete T10 paraplegic." His Honour went on to hold that the accident was due to the fault of the defendant in failing to drive onto the eastbound lane in such a way as to maximise her view of the road and minimise the extent of the protrusion of her motor vehicle into that lane. In essence, his Honour found that the defendant was guilty of negligence. There was a claim in the alternative, however, for a blameless motor vehicle accident. In either case his Honour assessed contributory negligence at 25%. Commencing at [84] his Honour said this: "84. The plaintiff's claim has been pleaded in the alternative. If the accident were not caused by the fault of the defendant, the alternative claim is that it is a blameless motor accident in accordance with the provisions of the Motor Accidents Compensation Act 1999. In the event that I have erred in finding fault on the part of the defendant, it is necessary for the Court to consider whether the accident meets the definition of "blameless motor accident" within the meaning of the Act. 85. Once there is an averment by a plaintiff that an accident is a blameless motor accident, the onus is on the defendant to prove that it is not a "blameless motor accident" (MAC Act s7C). The definition of "blameless motor accident" is found in s7A. It relevantly provides: "7A 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." 86. If an accident meets the definition of "blameless motor accident" in s7A, s7B operates to deem that the accident has occurred by the fault of the driver of the vehicle involved in the accident, thereby entitling the plaintiff to claim damages in the usual way (as if the driver had in fact been at fault). 87. The meaning of s7A was considered in Axiak v Ingram [2012] NSWCA 311. That case is authority for the proposition that a pedestrian plaintiff could not constitute "any other person" for the purposes of s7A because any contribution to the cause of the accident by the pedestrian plaintiff constituted "contributory negligence" rather than "tortious conduct" meeting the definition of "fault" in the Act (which is defined as being "negligence or any other tort"). 88. I am satisfied that the effect of the decision in Axiak is that fault on the part of a plaintiff which contributes to the cause of an accident does not constitute "fault" on behalf of "any other person" for the purposes of s7A. Accordingly, my finding that the plaintiff has contributed to the cause of the accident and that there should be a finding of contributory negligence against him would not prevent the accident being a "blameless motor accident"."
In the event that I held that this was a blameless motor accident, Mr Roberts drew this case to my attention, and in particular to s 7C for the proposition that the averment that the plaintiff's injuries were caused by a blameless motor accident contained in the statement of claim in these proceedings was prima facie evidence of that fact, throwing the evidentiary onus back onto the current defendants.
Although I was not directly referred to the next authority, it is one that needs to be noted because it is referred to in subsequent authorities to which I was referred. The decision is O'Brien v Davjam Enterprises Pty Limited [2014] NSWDC 270, a decision of P Taylor DCJ. This case was decided prior to the decisions of both Davis v Swift and Nettleton v Rondeau. His Honour's judgment was essentially permitting a pleading. The facts before his Honour are set out at the commencement of the judgment: "1. James O'Brien entered a rental agreement for a motor vehicle from Davjam Enterprises Pty Limited, the owner of the vehicle. Mr O'Brien was supplied with a motor vehicle pursuant to that agreement. Some three days later whilst he was driving, the vehicle collided with a rock wall and Mr O'Brien was injured. He sued the owner in negligence, alleging that the steering failed. 2. Mr O'Brien applied by notice of motion to amend his statement of claim to add a claim under the "blameless motor accident" provisions in Part 1.2 of the Motor Accidents Compensation Act 1999 ("the Act") and a cause of action based on breach of contract. The owner does not oppose the pleading of an action based on contract, perhaps because the owner's defence is presently conducted by its insurer, which claims to have no liability in contract. However, the owner opposes a claim under the "blameless motor accident" provisions on the ground of futility." At [12] his Honour said this: "In my view, the question of whether Mr O'Brien has caused the accident is a question of fact to be determined at trial and assessed in the context of s 7E(2). On the case pleaded by him, his claim under the "blameless motor accident" provisions does not appear to be futile." His Honour clearly allowed the amendment.
The next decision is that of Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89, a decision of Norton DCJ. Although this case was decided after Davis v Swift, that authority was not referred to in the judgment. Her Honour summarised the pleadings thus: "The statement of claim alleged that the defendant was the owner of a registered truck which at about 10:30 AM was being driven by the plaintiff in a northerly direction on Mount Ousley Road at Mount Ousley. These matters were admitted. The statement of claim further alleged that as the plaintiff was driving north a roadside tree fell and struck the cabin of the truck which then ran out of control and that the tree falling on the truck occurred during the driving of the motor vehicle. These matters were not admitted in the amended pleadings although it was conceded in submissions that there was a collision between the vehicle and a fallen tree after which the vehicle continued in a northerly direction for some distance before it came to a halt. It was alleged in paragraph 8 that the tree falling on the truck constituted a motor accident. Paragraph 9 alleged that the accident was a blameless one within the definition contained in section 7A of the Motor Accidents Compensation Act 1999 (MACA). The defence denied these allegations." Prior to [63] her Honour inserted a heading: "Has there been a Blameless Motor Accident?" Her Honour then set out the plaintiff's submissions as to the approach adopted by Tobias AJA in Axiak and a submission as to how s 7A ought be read. Her Honour went on to say this: "64. It was submitted the injury was a result of and caused during the driving but was not caused by any negligence on behalf of the owner or driver nor any negligence or tort of any other person. It was suggested that the evidentiary onus shifts to the defendant pursuant to section 7C. 65. The defendant submitted that the blameless accident provisions were never meant to be a 'no fault' scheme which would cover someone in the plaintiff's position, that is, a driver in a single vehicle accident. In short, 'a person' is not 'the driver' and thus 'a person injured' cannot be the driver, particularly in the circumstance where there is a motor vehicle and an inanimate object. 66. Both in pleadings and in submissions the defendant argued that the provisions were not meant to catch the driver of a motor vehicle which collided with an inanimate object. It was pointed out that in the present case the plaintiff could name the owner as the defendant because of statutory agency, but if he had been both the owner and the driver there would be no available defendant and that circumstance made it clear that drivers were not meant to be covered. The UCPR Part 6 rule 6.4 provides: "(1) Proceedings of the following kinds must be commenced by summons: (a) proceedings in which there is no defendant." Further, there is provision within MACA for joining insurance companies directly as a defendant. I therefore do not accept that the possible absence of a named defendant would prevent an owner/driver from bringing proceedings and thus that possibility does not impact on the process of statutory interpretation being conducted in this case. 67. The construction suggested by the defendant would result in section 7E having no work to do. If Parliament intended no driver of a motor vehicle to come within these provisions it could simply have enacted a provision that provided that no driver of a motor vehicle can recover under these provisions. I accept the plaintiff's submission that as there is no negligence or any other tort on behalf of either the owner or the driver of this vehicle, the event comes within the definition of 'blameless motor accident.'" Her Honour then turned her attention to whether the plaintiff's claim was excluded by s 7E. Her Honour said this: "71. On the facts as I have found them the plaintiff did not cause this accident. His driving on the road was no more than a background fact which explains no more than why he was in a position where he could be struck by a tree. Thus the driving of the plaintiff was nothing more than 'the mere occasion of the injury.' 72. In oral submissions it was emphasised that the section must be read in the context of the Part and that in circumstances such as the present case the plaintiff, as the driver, is deemed to be the person at fault and to have caused the accident. 73. Looking at the words of the section and bearing in mind the words used in the second reading speech I find that even under the extended definition of causation in section 7E there was no act or omission on behalf of the plaintiff, either voluntary or involuntary, which can be said to have caused the accident. I do not accept that the words mean that drivers in single vehicle accidents are deemed to have caused that accident."
The next decision is Hossain v Mirdha [2015] NSWDC 108, a decision of Elkaim DCJ (as he now is). Unfortunately, his Honour does not cite and therefore did not have cited to him, the decision of Davis v Swift. His Honour was provided with an agreed statement of facts. The plaintiff in that case was the driver of a taxi which was owned by the defendant. On 10 January 2013, the plaintiff was driving the defendant's taxi in lane 2 of two east bound lanes on Stanmore Road, Marrickville, when an unidentified dog ran from the side of the road in front of the taxi cab. To avoid hitting the dog, the plaintiff applied the brakes of the taxi and steered the motor vehicle in an attempt to avoid hitting it but in so doing, the front passenger side of the taxi collided with the rear driver side of a stationary truck which was parked in lane 1 of the two east bound lanes. At [10] his Honour said this: "I note here the defendant did not allege any fault on the part of the driver. The sentiment expressed by the then Chief Justice in NSW Insurance Ministerial Corporation v Reeve (NSW Court of Appeal, unreported decision, 24 September 1993) was not adopted. In that case a driver on the Pacific Highway had stopped suddenly to avoid some ducks crossing the road. The Chief Justice observed: "Perhaps somewhat generously to Mr Cotterill, his Honour did not seem to regard it as an aspect of negligence on his behalf that he did not decide to run over the ducks rather than imperil the people in the cars behind him." At [12] his Honour cited s 7E which I have set out above. His Honour then referred to Nominal Defendant v Hawkins, the second reading speech made when the Bill to amend MACA was introduced into Parliament on 9 March 2006, the decision of Nettleton v Rondeau to which I have referred and also the two earlier District Court decisions to which I have referred. At [26] his Honour said this: "Although the defendant did not concede that, on the facts before her, Norton DCJ was correct, it nevertheless distinguished the facts in Connaughton on the basis that the driver in that case had taken no act to cause the accident whereas the plaintiff here had acted by steering away from the dog and then into the truck. Thus it was the act of the driver in taking the avoidance measures which amounted to an act of causation disentitling the plaintiff to the benefit of Part 1.2." At [29] his Honour reached his conclusion: "I agree that there is at least a perception of an unjust result on the distinction that I have just referred to. However, in my view the act of steering the vehicle away from the dog was an act of the driver and it was an act that was a cause of the injury to him. It was not the sole or the primary cause but nevertheless was an act which caused his vehicle to collide with the truck. Suffice to say here that it is assumed in my decision, derived from the Statement of Agreed Facts, that the taxi would not have collided with the truck if the driver had continued straight along the road without trying to avoid the dog by adjusting his direction of travel." His Honour then dismissed the proceedings.
Sed quaere, what if, instead of swerving to avoid an unidentified dog, Mr Hossain had swerved to avoid a six or seven year old child who had run onto the carriageway in order to retrieve a ball? It could have been argued that the plaintiff had deliberately injured himself instead of causing more severe injury - perhaps even a fatal injury - to a young child. A motorist who did that would be lauded by the entire community. Nevertheless, if his Honour's decision be correct, he could not recover damages under the CTP scheme alleging that this was a "blameless motor accident". However, it might be that the CTP insurer would not raise the argument because the fear of public opprobrium.
The next decision is one of Hamill J in Melenewycz v Whitfield [2015] NSWSC 1482. His Honour's decision was made on 4 December 2015. The decision of Elkaim DCJ to which I have just referred was made on 25 June 2015. The facts are set out in the first paragraph of the judgment: "The facts of this case could only have taken place in Australia. On 12 August 2011, the plaintiff was riding his friend's motorcycle in a generally southerly direction on a red dirt road between Hungerford in Queensland and Bourke in New South Wales. The plaintiff commenced his journey in Noccundra and took lunch at Hungerford. He then set off for Bourke. Around 20 minutes later either he or his motorcycle (or perhaps both) was struck by a kangaroo. The plaintiff landed heavily on his right shoulder and has little memory." At [5] his Honour pointed out that the question before him is whether the blameless accident provisions can ever apply to a driver or a driver involved in a single vehicle accident. His Honour went on to cite the decisions of this Court in Connaughton and Hossain and also to cite Axiak and Nettleton v Rondeau and Davis v Swift and Mamo v Surace [2014] NSWCA 58. Concerning that decision, his Honour said this: "71. On the facts as I have found them the plaintiff did not cause this accident. His driving on the road was no more than a background fact which explains no more than why he was in a position where he could be struck by a tree. Thus the driving of the plaintiff was nothing more than 'the mere occasion of the injury.' 72. In oral submissions it was emphasised that the section must be read in the context of the Part and that in circumstances such as the present case the plaintiff, as the driver, is deemed to be the person at fault and to have caused the accident. 73. Looking at the words of the section and bearing in mind the words used in the second reading speech I find that even under the extended definition of causation in section 7E there was no act or omission on behalf of the plaintiff, either voluntary or involuntary, which can be said to have caused the accident. I do not accept that the words mean that drivers in single vehicle accidents are deemed to have caused that accident."
At [35] His Honour concluded that MACA did not exclude drivers involved in single car accidents. At [36] his Honour said the authorities to which he had referred either did not decide the point directly or were not binding on the Supreme Court. His Honour thought that the second reading speech was ambiguous. His Honour went on to say this: "43. […] Section 7E(2)(c) would disentitle a driver whose act or omission was the cause of their injury even if it was not the sole or primary cause. As cases such as Axiak and Davis v Swift show, s 7F still has significant work to do in cases where a plaintiff (other than a driver) is found to have contributed to an otherwise blameless accident. It is not the case that a construction that allows a driver to obtain damages under Division 1, except when their act or omission was the cause of their injury, would render otiose the contributory negligence provision in s 7F. 44. While there can be little doubt that s 7E is designed to place significant limitations on the circumstances in which a driver may recover in the case of a blameless accident, I am unable to conclude that the terms of the section mean that a driver may never recover under Division 1. Accordingly, I do not accept the primary submission advanced by the defendants. 45. Equally, and for the same reasons, I do not accept the defendants' second submission that the Division cannot or does not apply to any driver involved in a single car accident. 46. In coming to those conclusions, I acknowledge that the facts of a particular case may give rise to a finding that the act of driving itself was the real and practical cause of the collision and injury. An example, taken from the criminal law, is where a person voluntarily drives a vehicle with the knowledge of the possibility that they may suffer a seizure or fall asleep while at the wheel." (Footnotes omitted.) He went on to consider whether the plaintiff's act or omission caused the collision with the kangaroo. His Honour concluded thus: "70. I accept the evidence of the plaintiff (as an experienced motor cyclist and based on his perceptions in the time leading up to the collision) and Mr McDonald (as an expert) that the speed at which the plaintiff was travelling at the time of the accident (90-100 km/h) was unexceptional in the prevailing conditions. I do not accept the evidence of Mr Keramidas that travelling at that speed would have created lateral instability or diminution in control. There is no evidence that it actually did so and the plaintiff was steadfast in refuting the suggestion. The accident did not occur because of any instability caused by a combination of the speed and "rutting" or corrugation in the road surface. It occurred because the kangaroo crossed the road when it did and collided with the plaintiff. I accept that the "cone of vision" is decreased at higher speeds but also accept that the plaintiff was able to, and did, maintain a view of the road ahead. 71. While it must be accepted as a matter of logic and common sense, that a slower speed creates a longer reaction time, the evidence does not lead to a conclusion on balance that a slower speed would have resulted in the collision not occurring. The obvious exception to that proposition is the fact that the speed at which the plaintiff travelled meant that he was in the location where the kangaroo ran into him at the time the kangaroo decided to bound across the road. However, even on the expanded concept of causation established by s 7E, that happenstance does not lead to a conclusion that the accident was caused by an act or omission of the plaintiff. As was pointed out by Senior Counsel for the plaintiff, on the same basis it could have been said that the actions of the plaintiff in not leaving Noccundra half an hour earlier caused the collision, or that the plaintiff's decision to stop for lunch at Hungerford caused the collision, because he would have arrived at the place where the kangaroo crossed the road half an hour before the kangaroo. However expansive be the modified and extended concept of the phrase "caused by an act or omission" in s 7F, it does not go so far."
The final decision to which I have been referred on the same point is a relatively recent decision of Schmidt J in Syed v Crumpton [2016] NSWSC 500. Her Honour was dealing with a notice of motion. The plaintiff had brought an action in negligence against Mr Crumpton and, in the alternative, claimed that it was a blameless motor accident. On 23 February 2012 the plaintiff was riding a motorcycle along Lady Game Drive at Lindfield, behind a car which was being driven by Mr Crumpton, when it collided with a wallaby which fell to the road where it struck the motorcycle being ridden by Mr Syed causing him to be thrown and injured. The plaintiff brought proceedings not only against Mr Crumpton, the driver of the vehicle which struck the wallaby, but also against the NRMA, the CTP insurer of the plaintiff's own motorcycle. By motion on notice the NRMA sought to have the relief sought from it struck out, pursuant to UCPR 14.28, or alternatively to have the proceedings against it dismissed pursuant to UCPR 13.4.
One of the first points which her Honour had to consider was whether the statutory policy issued to Mr Syed extended to first party insurance cover, that is, whether it indemnified him for his own loss. Between [10] and [24] her Honour considered that issue and found that there was no basis for concluding that the cover granted by the statutory policy applied to an injured person who was either the owner or the driver of the vehicle, but not both. The common law principle that one cannot sue oneself could be circumvented by suing the insurer. Her Honour then went on to consider s 3A and the blameless motor vehicle accident provisions. At [39] her Honour said this: "An obvious example of such a situation would be where a driver was stopped in traffic next to a truck when a load fell onto his vehicle, or when a branch fell onto the vehicle from a tree, causing him injury. In such cases the provisions of s 7E would not apply, the accident not having been caused by an act or omission of the driver." At [44] her Honour referred to the decisions of Axiak and the more recent decision of Melenewycz v Whitfield. It was submitted in Syed that Melenewycz was incorrectly decided, but her Honour found no error in the conclusions of Hamill J. Her Honour went on to dismiss the motion of the NRMA, permitting, in essence, Mr Syed to sue his own insurer on the policy of insurance granted by the NRMA to him.
The other cases to which I have been referred by Mr Wilson were Marien v Gardiner [2013] NSWCA 396, which in essence considers both negligence and contributory negligence. I was also referred to Hawthorne v Hillcoat [2008] NSWCA 340, but for exactly what reason I do not know. The final decision was McLennan v The Nominal Defendant [2014] NSWCA 332, an unsuccessful appeal from Garling ADCJ. I have read that closely. It contains 193 paragraphs over 65 pages but I cannot see its significance to the matter that is currently before me. These authorities were cited to me to support the proposition advanced by Mr Wilson that the current accident was not a "motor accident" as provided for by MACA. I shall deal more succinctly with that issue immediately following the combined morning tea and lunch adjournment, which I now take.

LUNCHEON ADJOURNMENT

As McHugh J said in Allianz at [49] what is required is a close causal connection between the use or operation of the motor vehicle and the injury in question. His Honour went out to point out at [54] that my task is to identify the factors that contributed to the injury and determine whether, for the purposes of obtaining damages under the Act, the injury was caused by the use or operation of a motor vehicle. Of Nominal Defendant v Hawkins, I quoted [33] of the reasons of Hodgson JA who points out that there must be "a very substantial causative role" between the use or operation of the motor vehicle and the injury sustained by any plaintiff.
The fact that a horse was involved in the current matter does not preclude the plaintiff from recovering damages. A horse can be involved in a "motor accident". There must be both a temporal and causal relationship and the causal relationship must be, in essence, a very substantial cause of the plaintiff's injury. If a motorist lost control of his vehicle and drove it off the carriageway on to the nature strip on the side of the road or adjoining footpath where a horse was being walked along the road and struck the horse, causing the horse to throw the rider that undoubtedly would be a motor accident. If a car was used by an errant motorist to harass a man riding a horse along the side of the road and the horse reacted to that harassment by throwing a rider, such facts would be on all fours with the facts in Nominal Defendant v Hawkins.
If a car were being driven along the street and there were a piece of blue metal loose on the roadway and the piece of blue metal were hit by the front driver's side tyre of the car and projected across the road, such that it struck a horse being ridden on the verge of the road by an equestrian, and the projectile injured the horse, causing it to rear and throw the rider, the effective cause of that behaviour of the horse was the fact that it was hit by the projectile thrown up by the car. It would be most probably a "blameless motor accident" because it may have been exceedingly difficult for the motorist to see a loose bit of blue metal on a bitumenised road. It may not have been foreseeable but there would still be the relative temporal and causal relationship between the driving of the motor car by the motorist and the injury caused to the equestrian when he was thrown from the horse. There is no other competing cause for that injury. In saying that, I am referring to cases such as Allianz, such as Nominal Defendant v GLG Australia and such as Leach v The Nominal Defendant.
If I modify the facts, of the first example I have provided, one might be left with this scenario: the driver of the vehicle temporarily loses control of it, say he has a "micro-sleep", it veers towards a horse being ridden on the side of the road but off the bitumenised surface, but before actually striking the horse, the driver awakes and realises the problem and gets the car under control such that there is no collision between the car and the horse but a close approach to the horse which caused the horse to startle, shy and buck, throwing the rider. Then that also, in my view, is a motor accident albeit that there was no actual touching of the horse by the car that had gone out of control.
Another scenario would be a situation similar to the present one where suddenly and unexpectedly, the car being driven past the plaintiff on his horse backfired, startling the horse and causing it to rear up and throw the rider. The sudden backfiring of a car often startles and frightens human beings. In some countries, which are not as peaceful as ours, the sudden backfiring of a car is thought to be an explosion or the discharge of a firearm causing immense fright and panic. Even in Australia, the sudden backfiring of a car is sometimes likened to people as the discharging of a firearm. Such, in my view, would be a motor accident. A question would then arise as to whether it was blameless or not, where it was foreseeable by the motorist that his car would backfire when and where it did.
In oral submissions, I sought to engage with Mr Wilson in a reductio ad absurdum but he would not engage in that intellectual exercise. In the current case, there is really no competing cause that the Court can accept as the stimulus for the plaintiff's horse's "misbehaving". I do not accept that the plaintiff's horse had been "over-fuelled". There is no suggestion in the evidence or the submissions that somehow the plaintiff's riding of the horse caused or contributed to his being thrown by it. The submission was made that the plaintiff could have ridden his horse much further to the south of the bitumen carriageway near the fence on the southern edge of the road reservation, but there is direct evidence from the plaintiff corroborated by Mr Doughty that it would have been more dangerous because of, for example, broken glass and wire and other potential hazards that could not be seen in long grass. The irony of the submission, of course, is that the second defendant that said the plaintiff was four metres to the south of the bitumen, he would have been in the long grass, so the submission put by counsel for the defendants essentially accepts that Ms Fairall's evidence was not acceptable.
Even assuming that there were no fault on the part of the second defendant, I can go to the "definition" of "blameless motor accident" as set out in [62] of the reasons of Tobias AJA in Axiak v Ingram which I have quoted above. A blameless motor accident means an accident involving the use of a motor vehicle that causes injury to a person where the injury is the result of, and is caused during the driving of, the vehicle, but is not caused by the negligence or any other tort of the driver of the vehicle involved in the accident, or the negligence or any other tort of any other [third] person. Here, the plaintiff's injury was the result of, and caused during the driving of, the first defendant's vehicle by the second defendant, and was caused during the driving of that vehicle; and it is axiomatic, thereafter, if I accept that this was a "blameless motor accident" it was not caused by the negligence of the second defendant. However, as I said, this is not a blameless motor accident, because I have found that it was due to the negligence of the second defendant in the way in which she drove her vehicle, the speed at which she drove the vehicle, and the proximity in which she drove the vehicle to the plaintiff's horse when she had the ability to keep further away from him. I have no hesitation in accepting that this was a "motor accident" as defined in s 3 of MACA and satisfying the requirements of s 3A of MACA. If I go to that provision, I am required to find that it applies in respect of an injury to a person caused by the fault of the driver of the vehicle, which I have done. That fault was in the operation of her vehicle, and the Act can only apply if the injury is the result of and is caused during the driving of the vehicle. It was.
On those findings the plaintiff is entitled to damages for the injuries sustained by him assessed under MACA though to be reduced by 30% for contributory negligence. I turn now to assess those damages.

Quantum

As I found earlier, the plaintiff was taken by ambulance to the Wagga Wagga Base Hospital. I have only been provided with a discharge summary from that Hospital, indeed, a discharge summary from its rehabilitation department. Many of the medical practitioners qualified in the current proceedings have been provided with much more extensive records. The best description of what occurred to the plaintiff at the Wagga Wagga Base Hospital is contained in the history recorded by Dr Endrey-Walder, whose report bears the date 30 May 2014. That history is this: "He was taken to Wagga Wagga Base Hospital where he was found with the following problems. He had a very low blood pressure (hypotensive) There were fractures of the left 2nd to 10th ribs laterally, he had a left-sided pneumothorax and subcutaneous emphysaema for which an urgent intercostal catheter was inserted. He had an inter-trochanteric fracture of the right hip and lower abdominal pain. He complained of neck pain. He had a grossly comminuted fracture of the left scapula. Over the next three days he was in an induced coma in Intensive Care. On 25 September 2011, he had an open reduction and internal fixation (ORIF) of the right hip. On 4 October 2011, he was transferred to the Rehabilitation Ward, where he had intensive physical therapy over the next 20 days. On 24/10/2011 he was discharged from hospital, at this stage ambulating with the help of a walking stick, taking Oxycontin (narcotic analgesic) and aspirin for pain, had Clexane injections to prevent deep venous thrombosis, was taking Rabeprazol for oesophageal reflux (a condition he had never had before)."
On 2 November 2011, the plaintiff attended the Estella Medical and Dental Centre in the Wagga Wagga suburb of Estella. The plaintiff had been attending that general practice since 17 September 2009. The plaintiff has remained under the care of that general practice since. On 10 November 2011, the plaintiff had the first of a number of follow up assessments at the orthopaedic outpatient's department of the Wagga Wagga Base Hospital. Treatment included hydrotherapy of which he had six sessions at the hospital before starting walking exercises in the Charles Sturt University pool. On 9 January 2012, the plaintiff obtained a clearance from his general practitioner to return to work on restricted duties. The notes of the Estella Medical Centre which are exhibit R say this: "Wants to go back to work - feeling better - no shortness of breath on exertion - asked to start with light work - any concern to review. Patient is able to get help for strenuous help [sic, scil work] - clearance given." At the same time, the plaintiff obtained a referral for the making of a care plan, no doubt, to ensure his recovery from the serious injuries which he sustained.
The plaintiff told me that he returned to work doing restricted duties on 14 January 2011. The plaintiff told me that was basically "lecturing more" than merely demonstrating to students how to deal with cattle. He found that frustrating to start with because he found it easier to demonstrate than to explain what needed to be done. He asked whether he could give an example and he gave this example: "If you're trying to teach a student to put a gag in a cow's mouth that's got its head in a crush and it's jumping up and down, you've got to show them how to do it because if you tell them, they will get hurt. I never got a kid hurt while I was there." The problem with which he had to deal was a very physical one. One can understand how it might be easier for him to show a student how to do it rather than to express the action in words. The plaintiff then told me that his job theoretically required him to work with the large Black Angus cattle and he was worried that he might be hit by a beast or knocked over. When asked about such concerns, the plaintiff said this: "I got jammed at that time pretty hard in the yards and it can happen with cows, big cows can jam you up into a rail and they'll hurt you and I couldn't get out of the way, I couldn't move fast enough." He told me that what prevented him moving quickly enough was the problem that he had with his hip and he said that he had been limping ever since he was discharged from the Wagga Wagga Base Hospital. He told me that the end of any days work he felt tired. The plaintiff was cross-examined about that, commencing at T110.34. He told me that his work was divided about 50/50 between teaching and work as a technical assistant, setting up equipment and that sort of thing for other members of staff. That was before the accident. After the accident, he did a lot less of hands-on teaching. Although this does not arise at this time, the plaintiff went on to be asked why he retired. He told me that the work was "very risky". He again mentioned that he was dealing with Black Angus cattle which were "very waspy animals" and he was worried about being injured by them. Despite the fact that he was on restricted duties, he still had to move cattle from time to time. He said that that was generally each Friday when he had a two hour practical session.
In March 2012, the plaintiff's wife, Mrs Hobbs, who had been employed at the Charles Sturt University for many, many years, took a redundancy. She did not wish to leave the work force but the section in which she worked at the University was being closed down and the redundancy package would remunerate her sufficiently so that even if she had not taken it, she would have earned only the same money by staying on until her probable retirement time.
The plaintiff told me of ongoing problems in his right hip and his left shoulder. I accept the plaintiff's complaints about his hip and left shoulder. There appears to be little doubt about them.
There was, however, a major complication which occurred in the middle of 2012. In June 2012 the plaintiff and his wife went to Sydney to attend a wedding. After the wedding he travelled to the Central Coast for a short holiday, visiting relatives. On 8 June 2012, the plaintiff had an attack of chest pain. He was taken to the Gosford Hospital. Again, I have only been provided with a discharge summary from that hospital. Again, medical practitioners have been provided with more voluminous notes. The plaintiff was not discharged from the Gosford Hospital until 22 June 2012. He was an in-patient for 14 days. The relevant part of the discharge summary from the Gosford Hospital says this: "Anthony Hobbs presented to this facility with chest pain, was found to have a strangulated diaphragmatic/gastric hernia. This was complicated by sepsis and a four day Intensive Care Unit stay inotrop/ventilatory support. Summary of Care Mr Hobbs presented on 8/6/12 with vomiting and chest pain. He became acutely unwell on 10/6/12 and the diagnosis of a strangulated gastric/diaphragmatic hernia was made. He was taken to theatre for repair. Following this he had an ICU stay for four days with sepsis, supported with ventilation and inotropes. On the ward he developed a pleural effusion which required draining over several days. He had ongoing fevers which settled." Inotropes are modifiers of muscular cramping. Clearly they were to stop any cramping occurring.
The best description of what happened to the plaintiff at this time is contained in the medical certificate of Dr Phillip Truskett, who examined the plaintiff for the Motor Accidents Authority. In his history, Dr Truskett has the date of the plaintiff's admission to the Gosford Hospital wrong, however it does explain it somewhat better. That history is this: "In July 2012, he and his wife were in Terrigal attending a wedding. On 12 July 2012, he experienced chest tightness and was taken to Gosford Hospital. He was admitted under the care of Dr Wong (physician) with suspected cardiac pain. Investigations revealed that he had a left-sided diaphragmatic hernia with incarceration of his stomach. He underwent emergency surgery and had a (sleeve) partial gastrectomy to remove necrotic stomach." On p 10 of his certificate, Dr Truskett listed various medical reports that had been provided to him. They included the medical records of the Central Coast Local Health District. He went on to say this: "This contains an Operation Report. A laparotomy performed on 10 June 2012. The proceduralist was Dr Shannon Di Lernia. At this operation, there was a diaphragmatic hernia through the left diaphragm with strangulation of the fundus of stomach. This required resection of the greater curve of the stomach, which was stapled then oversewn. A 28 French gauge chest tube was inserted in the sixth intercostal space and the diaphragmatic defect was closed with interrupted one nylon. This sounds to be a traumatic diaphragmatic hernia." On p 11 of his certificate Dr Truskett said this: "I am convinced that his left diaphragmatic hernia is a consequence of his accident on 24 September 2011. The mechanism of injury is consistent with a diaphragmatic hernia. These classically are missed because of the surrounding contusion of lung and other organs make imaging difficult to interpret. I therefore believe that the partial gastrectomy is to be considered the result of his injury of 24 September 2011. I also note that he has now developed an incisional hernia in the incision that was used to do his gastrectomy. This incisional hernia is therefore similarly a result of his accident on 24 September 2011, as it is a consequence of the injury sustained."
Dr Truskett assigned a10% whole person impairment (WPI) to the problem that the plaintiff had developed in his abdomen. All told, Dr Truskett found 19% WPI. If one understands the medical terminology one can understand that the plaintiff would have been in extreme pain from the time of the onset of his chest pain and vomiting on 8 June until his discharge from the Gosford Hospital 14 days later. His stomach perforated the hole made in his diaphragm and pressed on his heart. That was causing the chest pain, and hence the suspicion of cardiac symptoms. When the hernia was discovered, it was necessary to remove part of his stomach, that part that had got into the chest cavity, and then repair the defect in the diaphragm and repair the stomach. That was followed by a period of major infection in the hospital requiring a prolonged stay in the intensive care unit and followed by further problems with his lungs requiring drainage of his lungs. He was also suffering from fever. This is no minor complication. This was a major, life-threatening complication causally related to the injury sustained by the plaintiff when he was thrown from his horse.
The plaintiff went back to see his general practitioner after that episode of treatment on 10 July 2012. It was noted at that time, however, that the plaintiff had poor air entry on the left side of his chest. That could either be the result of the original fracturing of the nine ribs on the left hand side of his chest or it could be the result of the problem with the lungs that he developed whilst an inpatient at the Gosford Hospital. A pleural effusion was again the subject of the plaintiff's attendance upon his general practitioner on 17 July 2012. So it seems likely that the problem that the plaintiff had at the Gosford Hospital was persistent.
The plaintiff did, however, get back to work, but again on restricted duties as before, on 27 July 2012. The plaintiff persisted with light duties until deciding that he had to resign. He gave notice to the Charles Sturt University of his intention to retire on 3 March 2013. I have already referred to evidence which the plaintiff gave when cross-examined as to why he sought to retire. The gravamen of the defendant's case in this regard is contained in this evidence, at T113.16: "Q. You simply made a decision to retire, didn't you? A. I had made the decision to retire after weighing up the situation where I might have got a - crashed into the - sorry crashed into the rails or got kicked. I didn't think that I was giving my full 100%. Q. You didn't think you were giving 100%, but no one at the university ever said anything like that to you, did they? A. No." Mr Wilson persisted with this line of cross-examination and again the plaintiff said that he just realised that he is no longer up to do doing his job: "I was no good at it". It was put to Mr Hobbs by Mr Wilson that he retired because it suited him. The plaintiff said this: "It didn't suit me, it was because my chance - it was because of my chance of getting injured". He then also said that he would not have retired unless he found himself not doing his job properly. He agreed that what he meant to tell me was that had the accident not occurred, he would not have even considered retirement.
It is abundantly clear that the plaintiff thoroughly enjoyed his work as a Technical Assistant in the School of Animal and Veterinary Science at the Charles Sturt University. One could summarise his experience as being the fulfilment of his ambitions of dealing with cattle and horses and his fellow human beings. Clearly he was extremely well regarded at the University. That was hinted at by both Professor Chenoweth and by Mr Doughty. It is also evident from the awards made to the plaintiff by the University which became operative after the accident. I am confident that the plaintiff would not have retired had he not been injured. The University was loyal to him and he wished to be loyal to the University. He did not want to persist in a job where he could not do the work properly. That is a very honourable position to adopt. However, equally, I accept that the plaintiff realised that his work continued to be dangerous for him and that it was in his best physical interests to offer his resignation. The University accepted his resignation. Effectively it came into force on 4 June 2013 when he ceased to work. However, it came theoretically into operation on 27 November 2013, his official resignation date.
Between 4 June 2013 and 27 November 2013, the plaintiff was on his annual leave and long service leave. He had been advised, for financial reasons, to serve out all his accrued leave. He did so. The plaintiff has not worked since he left the university on 4 June 2013. At that time he was 67 years old. However, I accept that the plaintiff would have worked on to age 70 as he told me in his evidence and as the evidence of Professor Chenoweth confirms. The evidence in that regard is, in my view, overwhelming.
The plaintiff has been left with residual problems. However, no claim for damages for personal injury ever provides a consistent pattern of medical opinion. In the current case it is somewhat bemusing. I know from the certificate of Dr Truskett that the surgeon who performed the open reduction and fixation of the plaintiff's right hip was Dr Paul Della Torre who was supervised by Dr Andrew Redgment. Dr Redgment is an orthopaedic surgeon, who has a private practice in Wagga Wagga as well as being a consultant at the Wagga Wagga Base Hospital. The inference to be drawn is that Dr de la Torre was in training as an orthopaedic surgeon working under Dr Redgment's supervision. He was probably the Orthopaedic Registrar of the Hospital. One can understand why there is no report from any treating doctor.
The plaintiff's solicitors qualified Dr John Bentivoglio, an orthopaedic surgeon. Dr Bentivoglio examined the plaintiff on 28 March 2014. Dr Bentivoglio, when he examined the plaintiff's right hip, found a "slightly positive Trendelenburg's test involving the right hip". He noticed an 11 cm scar over the lateral aspect of the hip but it did not appear to be attached to any underlying tissue. He did not find any obvious leg length inequality. He found that the plaintiff was mildly tender over the internal fixation devices in his right hip. There was some reduction in movement of his left shoulder. When commenting on the investigations Dr Bentivoglio noted that the comminuted left scapula fracture did not involve the glenoid. When he looked at the radiological investigations of the plaintiff's right hip he thought that because of the position of the fracture the plaintiff was at no particular risk of developing post-traumatic osteoarthritis at some later stage. He thought the plaintiff's condition had stabilised. He thought the plaintiff would continue to experience symptoms in his right hip indefinitely. He also thought the plaintiff would continue to experience symptoms in his left shoulder, with loss of movement and loss of strength in the shoulder indefinitely. He expressed the view that the plaintiff would never get back to doing his full pre-injury duties because of his ongoing symptoms.
The plaintiff's solicitors also qualified Dr Endrey-Walder who as I mentioned earlier examined the plaintiff on 30 May 2014. Dr Endrey-Walder thought the plaintiff had a "rather waddling gait" with a moderate limp on the right leg. I was able to observe the plaintiff over a week and I noticed that limp from time to time. Dr Endrey-Walder found half the normal range of squat and when the plaintiff did that he complained of problems in the right hip. He thought the right leg was 3 cm shorter than the left leg, and that the right thigh was 1 cm smaller in circumference than the left thigh.
At this stage I should perhaps interpolate that Dr Anthony L G Smith who examined the plaintiff on 5 December 2014 for the defendants found 1 cm of shortening of the right leg, by comparison to the left. Dr Truskett found 2 cm of shortening of the right leg. He went on to say this: "The true leg length measured from the anterior superior iliac spine to the medial malleolus was 91 cm on the right and 93 cm on the left. The apparent leg length from the umbilicus to the medial malleolus was 98 cm on the right and 100 cm on the left." I am accordingly provided with the opinions of four doctors on the length of the plaintiff's left leg. Dr Bentivoglio qualified by the plaintiff's own solicitors said there was no leg shortening. Dr A L G Smith, also an orthopaedic surgeon, qualified by the defendant's solicitors, said the right leg was 1 cm shorter. Dr Endrey-Walder, a general and trauma surgeon qualified by the plaintiff's solicitors, says there was a 3 cm shortening; but Dr Truskett, retained by the Medical Assessment Service of the Motor Accidents Authority, says that the shortening was 2 cm. I have four doctors, and four assessments: 0, 1, 2, and 3. I have no hesitation in finding that the proper assessment is that made by Dr Truskett, because, firstly, he is independent of either party, and, secondly, because he explains how he calculated the shortening.
I return to Dr Endrey-Walder's examination of the plaintiff. When he examined the plaintiff's abdomen he found a 20 cm long midline scar in the abdomen and a reducible hernia just above and left of the umbilicus. On p 6 of his report, Dr Endrey-Walder says this about the problems that the plaintiff developed in June 2012: "When discharged from [Wagga Wagga Base] hospital he was on medication for symptoms of gastro-oesophageal reflux, but it is my understanding from him that once he ran out of the medication he had no ongoing difficulties until the acute incident in June 2012, which resulted in major abdominal surgery. He has remained with the symptoms of gastro-oesophageal reflux since, which is clearly a consequence of the injury suffered, and is residual from the surgery he had on the stomach. (I have no report as to what might have transpired, but from the description of the acute onset and the subsequent operative procedure I would expect that he might have had some strangulation of the stomach, having herniated into the chest.)" Clearly what Dr Endrey-Walder suspected happened did indeed happen. Dr Endrey-Walder clearly relates ongoing gastro-oesophageal reflux to the injury, and clearly he appears to accept, because of the reasoning provided by Dr Truskett, that the problem with the gastro-diaphragmatic hernia was a result of the injury. Further on that report, Dr Endrey-Walder points out that there was a small but definite incisional hernia in the abdominal wall where he had earlier said it was: above and left of the umbilicus.
As to the future, Dr Endrey-Walder said this: "Mr Hobbs retired in June 2013, and I have no difficulty accepting his reasoning for this, as no doubt the previous injuries, and especially his difficulties at the right hip, would have indeed caused him anxiety being knocked about by cattle. Were it not for the accident, there is no reason why he could not have continued in his job to the age of 70 or even perhaps beyond. He lives on a property where some of the heavier duty physical chores are clearly beyond him and this will remain his condition in the long term. I expect him to be in need of both paid help and assistance by his wife in coping with the chores associated with his place. I believe it would be reasonable for this man to consult with Dr Wong regarding the incisional hernia, as this may well have to be surgically repaired ($6000)." Dr Wong is at the Gosford Hospital. It would be impracticable for the plaintiff to consult with Dr Wong but it would be practicable for him to consult a general surgeon in Wagga Wagga. There may be a need for repair of the incisional hernia but the plaintiff says that he does not wish to have any further surgery but if there were herniation of the contents of his abdomen through that hernia that could lead to strangulation and the need for further urgent surgery which could not be avoided.
Dr Smith, as I already indicated, examined the plaintiff on 5 December 2014. He thought the plaintiff walked with a "dip" to the right. He found Trendelensburg's sign to be negative, although Dr Bentivoglio had earlier found it to be slightly positive. Dr Smith appeared to have been more concerned about some knee problems which the plaintiff had. He found a fixed flexion at 10 degrees at the right knee and five degrees at the left knee and that both knees had a restriction in the range of flexion, and that there was crepitus throughout the range of movement of each knee. To me that indicates that the plaintiff has osteoarthritic knees which was hardly surprising in a 68 year old man. However, the plaintiff makes no complaint about his knees. Despite the prognosis of Dr Bentivoglio that the plaintiff was not at particular risk of developing degenerative osteoarthrosis of the hip, Dr Smith thought the plaintiff did have some arthritis in his right hip. I do not need to enquire into whether each gentleman means, the one by arthrosis, the other by arthritis, the same thing.
Dr Truskett examined the plaintiff on 14 August 2015. His certificate bears date 19 August 2015. When Dr Truskett examined the plaintiff's right hip, he found marked reduction in mobility on the right compared to the left. On examining the plaintiff's left shoulder he found a significant reduction in left shoulder movement and a positive impingement of the left shoulder in passive abduction. When he examined the abdomen he found a well-healed midline scar in the upper abdomen to the level of the umbilicus, measuring 21 cm in length. He found at its mid-point a 10 by 10 cm defect constituting an incisional hernia that was protuberant on coughing and also when standing. As far as the fractured left ribs were concerned, Dr Truskett said that they were settling and were un-assessable as they were uncomplicated fractures and attracted no WPI. He found a 4% WPI due to the reduction of hip movement which he described as being a moderate impairment. He found a 7% WPI because of the problem in the left shoulder which left an 11% impairment of the left upper limb. As I earlier mentioned, he found 10% WPI because of the problem with the plaintiff's abdomen. When one adds, under this system, 10% and 7% and 4%, one comes up with 19%.
The evidence painted by the post-injury medical evidence is of a man who had life threatening injuries which require extensive treatment at Wagga Wagga Base Hospital immediately thereafter, a complication in the middle of the following year, in June 2012, requiring a 14 day hospital admission for injuries which were again potentially life threatening; a man who has had to give up work which he loved because there was a real risk to him of further injury, in particular, of further problems in his left hip, and any crushing of the plaintiff between beasts or between a beast and a fence or wall could cause serious problems to the plaintiff's abdomen, could cause the weakness of the hernia to permit strangulation of the abdominal contents, requiring further urgent surgery. The attack on the plaintiff's case concerning quantum, is, in my view, the throwing of red herrings across the Court's path. I shall address that issue in the morning and I trust that I shall have the plaintiff's damages assessed by high noon.

ADJOURNED TO THURSDAY 26 MAY 2016

The defendants tendered a large number of documents. Included amongst them were many pre-accident records from the Wagga Wagga Base Hospital and other medical records preceding the plaintiff's injury as well as other documentary evidence.
The first in time, exhibit 10, is an accident/incident report submitted by the plaintiff to the Charles Sturt University. That refers to an incident on 18 January 2008. That refers to injuries to the plaintiff's knees and the extent of the injury is this: "While having to kneel on desktops to replace flyscreens I have caused injury to both my knees." There is no suggestion that that event caused any loss of time. If one kneels on a hard surface one often experiences discomfort. That is merely what appears to have happened. As I pointed out yesterday, the evidence does suggest the plaintiff has some osteoarthritis in his knees. I can accept that kneeling on a hard surface whilst one has arthritic knees could cause discomfort and pain. However no aspect of the plaintiff's current incapacity for work or any symptom which the plaintiff described to me relates to his knees. That is one of the red herrings.
The next red herring concerns the diagnosis of "cancer". On 12 November 2008 the plaintiff had excised from his chest a basal cell carcinoma. It was thought at the time that the carcinoma had not been wholly excised. This was nothing more than a skin cancer. However, the plaintiff's general practitioner, Dr Pillai, then referred the plaintiff to Dr Michael Payne, a surgeon, because the pathology report suggested that the general practitioner who had excised the skin cancer had not wholly excised it. Dr Payne saw the plaintiff on 1 December 2008 and recommended an admission to the Wagga Wagga Base Hospital for "re-excision". The plaintiff was admitted to the Wagga Wagga Base Hospital on 7 January 2009. The area where the basal cell carcinoma had been was re-excised. What was excised was sent for histopathology. The histological report, which is part of exhibit 11 and also exhibit 12, says this: "There is no indication of residual basal cell carcinoma lesion in this specimen." In other words, the first histopathological report was incorrect, the GP had wholly excised the basal cell carcinoma from the plaintiff's chest, and further surgery at Wagga Base Hospital was unnecessary. Confirmation of that is contained in exhibit 11.
Exhibit 9 is another accident/incident report submitted by the plaintiff to the Charles Sturt University. That reports an incident on 17 September 2009. The plaintiff said that on that day, while lifting a centrifuge at the equine centre in order that it could be moved elsewhere he sustained an injury to his anterior abdominal wall. The plaintiff thought he had sustained a hernia. This was the subject of cross-examination to the effect that the incisional hernia, which I identified from the medical reports yesterday, was in fact a pre-existing condition. Although that was the subject of cross-examination, and the subject of many of the documents tendered by the defendants, no expert medical evidence was adduced by the defendants to corroborate the postulation of Mr Wilson that the incisional hernia identified by me yesterday was a pre-existing condition. Mr Wilson left it to me to decide.
The incident of 17 September 2009 was the subject of the plaintiff's complaint to his general practitioner on that day. The general practitioner's notes indicate that the plaintiff was complaining of abdominal pain. The complaint recorded was of numbness in the right hypochondrium. However the plaintiff had no pain, he had no bowel problem, and he had no problem with his spine. The general practitioner thought the plaintiff should undergo a blood test. The plaintiff's next visit to his general practitioner was on 12 October 2009, when he is still complaining of some numbness in his right hypochondrium. However, the reason for the plaintiff's seeing his general practitioner was, according to the general practitioner, hypertension. With great respect to the general practitioner, it seems more likely to me that the plaintiff complained of continuing numbness in his right hypochondrium and the doctor diagnosed hypertension. The general practitioner on 12 October recommended an X-ray. That X-ray was performed on 22 October 2009. It is part of exhibit 11. The only real significance of that X-ray is the clinical history which it contains of "heaviness in the right hypochrondrium for a long time, not settling." Heaviness and numbness are different things but they may represent an attempt by the plaintiff to describe some abnormal feeling. As well as the X-ray of the chest, an ultrasound of the abdomen was performed. Again, that investigation is part of exhibit 11. It is reported as showing no significant abnormality in the abdomen.
The plaintiff attended again on his general practitioner on 3 November 2009. The plaintiff was "in for results", which I assume indicates the plaintiff was going back to this general practitioner to find out the results of the investigations performed since his visit on 22 October 2009. On 3 February 2010 the plaintiff saw his general practitioner who noted a lump in the linea alba which the general practitioner Dr Pathak misspelled as the lina alba. He referred the plaintiff for an ultrasound. That was carried out on 16 February 2010. The report of that scan forms part of exhibit 11. Under the heading "Clinical Notes" the report says this, "? epigastric hernia". That indicates that it was thought that there might be a hernia in the epigastric region. The report says this: "There is an anterior abdominal wall defected [sic, scil. defect] measuring 20 x 15 millimetres with herniation of omental fat noted between the fascial planes but remaining deep in the linear [sic] alba and rectus abdominus [sic, scil. abdominis] muscles. It is completely reducible." On 19 February 2010, the plaintiff returned to see his general practitioner to obtain the result of that investigation. He was then referred back to Dr Payne.
Dr Payne saw the plaintiff on 15 April 2010. That is proven by Dr Payne's clinical notes which are contained in the records of the Wagga Wagga Base Hospital and are part of exhibit 11. The doctor's report following upon that consultation bears the date 16 April 2010 and is contained in exhibit 11 and is also exhibit Q. The substance of Dr Payne's report of 16 April 2010 following upon his examination of the plaintiff on the preceding day is this: "Anthony noticed a bulge in his epigastric region recently whilst at work. It does not give him any pain or symptoms. Clinically it has the appearance of a divarication of the rectus muscles. Anthony has had an ultrasound performed which has been reported as a 2cm defect below the level of the linear [sic] alba and the rectus abdominis muscles. This is not consistent with a hernia which by definition should allow intra-abdominal contents to pass between the rectus muscles and through the linear [sic] alba. I have assured Anthony he has a condition which does not require surgery. He can continue to work and attend to his normal activities. I have made no further plans to see him again, but would be happy to do if needed."
The linea alba is a white line of connective tissue in the middle of the abdomen from the base of the sternum to the pubis. It is the centre line of the abdomen and is well defined in a healthy human being carrying no abdominal fat. It can be easily discerned in a male who has the proverbial "six pack" abdomen. There are a number of muscles that are called rectus abdominis. They are the external abdominal muscles, one on each side of the linea alba, stretching from the pubic bone to the cartilages of the fifth, sixth and seventh ribs. Each of the recti abdominis runs parallel to the linea alba. A divarication of the recti abdominis below the linea alba is merely a gap or weakness between the two muscles immediately below the centreline of the abdomen. At this point, it is important to bear in mind the various regions of the abdomen. If one places over the abdomen a noughts and crosses grid, with the middle region of that nine region grid having at its centre the belly button, or umbilicus, one has divided the abdomen into nine regions. These are known by the following names, and it does not matter whether one goes from the left to right of the observer or left to right of the person being observed, that is, the patient. The upper tier of regions is the hypochondrium, the epigastrium and the hypochondrium. The middle tier of regions is the lumbar, the umbilical and the lumbar. The bottom tier of regions is the inguinal, the suprapubic, and the inguinal. It should be clear from what I have already said that the plaintiff's initial complaint on 17 September 2009 was in the right hypochondrium; that is, on the right side of the abdomen, its upper tier.
What was eventually diagnosed was a divarication of the recti abdominis below the linea alba, that is, in the centre line of the abdomen, that is, in the middle of the abdomen, its upper tier. These are two different areas of the abdomen. In any event, what was identified eventually by Dr Payne was not a hernia, but merely a divarication of the recti abdominis in the epigastrium. From what I have set out yesterday, particularly the findings of Dr Truskett, the plaintiff has now not a problem with the divarication of the recti abdominis 2 cm below the linea alba in the epigastrium, but an incisional hernia above the umbilicus and, on the observation of Dr Endrey-Walder, to its left, i.e., it is not under the linea alba but to the left of the centre line of the abdomen, and just above the umbilicus indicating that it is in the umbilical region of the abdomen. There is no dispute that some long time in the past, that is, probably a decade before the accident now in question, the plaintiff had an umbilical hernia which was repaired. Umbilical herniae are relatively common and are caused by the extrusion of the contents of the abdomen through the defect left by the cutting of the umbilical cord post partem. There is no suggestion that the current hernia is the old umbilical hernia, and it is patently clear that the current incisional hernia is not the divarication of the recti abdominis identified by Dr Payne in his report of 16 April 2010. As I said, this is a complete red herring. Counsel who decide to put matters such as this before the Court should either obtain expert medical advice to the effect which they submit, or know more about the subject and in particular, anatomy.
The next red herring is a submission that the plaintiff's health and therefore his expectation of life is impaired, because of a cardiac condition which has led to a number of angiograms. On 14 July 2010, a few months after Dr Payne provided the eventual diagnosis for the plaintiff's perceived abdominal problem, the plaintiff returned to see Dr Pathak at the Estella Medical and Dental Centre for a check-up. According to Dr Pathak's notes, the plaintiff was not complaining of any problem. He told the doctor that he was exercising and taking care of his diet. Amongst the tests performed by Dr Pathak was an ECG. According to Dr Pathak's notes, this showed "possible small ac [? acute] anterior myocardial infarction and first degree A V block". Dr Pathak was concerned about what he perceived the ECG showed and sent the plaintiff straight away to the Wagga Wagga Base Hospital.
The records of the Wagga Wagga Base Hospital for 14 July 2010 are part of exhibit 12. The record, a discharge note, says this: "Anthony was sent in for review by his GP today after attending the surgery for a routine check-up. Anthony has been asymptomatic and completely well. The ECG done at Estella Medical Centre read inferior AMI [anterior myocardial infarction] and Anthony was referred to the emergency department for review. Anthony has been completely well and was well on examination. His ECG shows first degree A-V block and high uptake on anterior leads. Troponin was negative. We have discussed with Anthony that the ECG changes are likely to be longstanding. As he is an ex-smoker and has hypertension Anthony would like to have an exercise stress test done as an outpatient."
The plaintiff was sent to see Dr Gallagher, a cardiologist, at Riverina Cardiology. Dr Gallagher reviewed the plaintiff on 21 July 2010. Dr Gallagher's report of 27 July 2010 addressed to Dr Pathak is part of exhibit 12. That report contains this matter: "Mr Hobbs' ECG findings are relatively non-specific and may reflect his hypertension. I will organise for him to undergo a stress test echo to exclude any resting regional wall motion abnormality or myocardial ischaemia. It will also allow us to assess his heart rate response to exercise and exclude any exercised induced bradyarrhythmias. If the stress test is normal I would be happy to observe him for the time being." The stress test was then performed on that day. A second report of Dr Gallagher bearing date of 27 July 2010 says this: "I have reviewed Anthony following his stress test today (21.07.10). This was abandoned at a fairly low workload in the absence of symptoms. Anthony's resting echo did raise the possibility of a previous infero-basal infarct. Exercise was associated with some early ST elevation in the precordial leads in the absence of chest pain and blood pressure fell. There is no ST segment depression post exercise. His post stress echocardiogram again revealed infero basal hypokinesis but no evidence of ischaemia in other territories. Whilst the stress echo was non-diagnostic, I felt there was enough based on haemodynamic and ECG changes to warrant further investigation with angiography." What that tells me is the plaintiff had no symptoms but the doctor decided that it would be wise to investigate perceived test abnormalities.
For that reason, the plaintiff was admitted to the Wagga Wagga Base Hospital for a day, 4 August 2010. Again, the records of that admission are part of exhibit 12. The result of the investigation performed is recorded as showing that the plaintiff had ectatic coronary arteries. There were low OM branch significant stenoses. Ectasia is dilatation of any tubular vessel. The plaintiff's coronary arteries were ectatic merely means that they could be dilated or widened. The only real abnormality shown was of the stenoses in the low OM branches. Following upon that examination, Dr Peter Ruchin, also a member of the Riverina Cardiology Practice, placed the plaintiff on a medication known as Clopidogrel.
However, it was decided that the stenoses which I have just mentioned should be surgically treated. For that reason, the plaintiff was admitted again to the Wagga Wagga Base Hospital on 27 August 2010, but was discharged on the following day. Another angiogram was performed. In essence, surgery was practised on the circumflex artery of the heart. The cardiologist performing the surgery, Dr Ruchin, attempted to remove the narrowing of the OM branches of the artery. He was unable to insert a stent but he believed that there had been optimum balloon angioplasty performed. In other words, he believed that passing the "balloon" through the branches of the artery effectively resulted in the best possible dilation. In a report of 27 August 2010, Dr Ruchin confirmed that he had achieved an excellent result with the angioplasty of the branches of the coronary artery involved. The plaintiff has had no further cardiac investigation.
With the utmost respect to the medical practitioners involved, this whole episode of coronary investigation appears to have been due to a misreading by the general practitioner of an ECG and as the plaintiff had no symptoms of a cardiac nature whatever, the surgery ultimately practised was merely preventative rather than curative. Had the misdiagnosis of the general practitioner not occurred, the surgery would probably never have been practised. Whether the plaintiff would have eventually suffered from a problem due to some stenosis of some branches of the circumflex coronary artery is a moot point. If I may be permitted to use a terminology often used by orthopaedic surgeons, the cardiologists treated the investigation rather than the symptoms. In my view, this is another red herring.
I am not persuaded on the balance of probabilities that the plaintiff has any reduced life expectation because of the previously practised coronary angiography or because of any pre-existing symptoms, nor am I persuaded on the balance of probabilities that incisional hernia diagnosed following the surgery practised at the Gosford Hospital in June 2012 was some pre-existing condition or something to which the plaintiff was predisposed because of some pre-existing condition. If the plaintiff has a normal life expectation, which I accept he has, he can expect to life for a further 17 and a half years. I take that from p 19 of the Furzer Crestani handbook, updated on 1 October 2015.

Non-economic loss

I turn now to the various heads of damages claimed by the plaintiff. Even on this issue there was little agreement. The only agreement reached was on past out-of-pocket expenses. No other head of damages was agreed. The maximum payable for non-economic loss is $492,000. In an assessment under MACA I am not required to make any finding as to proportionality, i.e., the award of damages for non-economic loss does not need to be in proportion to a most extreme case. The plaintiff has submitted that I ought award to him $290,000. The defendants, however, submit that the award for non-economic loss should be between $75,000 and $100,000. The disproportion between the two submissions represents the extent of the disagreement between the parties in this case. I am acutely aware of the plaintiff's age. I am acutely aware that at the time of the accident the plaintiff was 64 years old and that at this time he is 69 years old, but of course I must take into account the fact that his life expectancy is seventeen and a half years. True it is that a young person, who suffered the same injuries as this plaintiff did, could expect to have pain and suffering for much longer than the present plaintiff will. However, my assessment of the pain and suffering of the current plaintiff is that it is substantial, and by that word I mean more than "significant". I have sought to outline that in my description of the plaintiff's experiences at both the Wagga Wagga Base Hospital and in the Gosford Hospital. Another important area of evidence in that regard is the observations of Mrs Hobbs. At the end of her evidence-in-chief she gave this testimony: "Q. Finally, following his injury, did you notice some changes in Tony's personality? A. Yes. Q. In what way? A. He's very frustrated with himself that he can't perform like he used to. Q. What about his temperament? A. He's quick tempered. Q. Was he beforehand? A. He'd have his moments but not like this. Just not like this. He can't function like he used to, you know. I can see him outside. I can see him in pain a lot, but he is the type of man that doesn't say anything much, you know. I'll say, 'what's the matter?' 'Oh, she'll be right,' you know. I think he wants to get back to how he was and it's never going to happen, and it breaks my heart sometimes." At that stage Mrs Hobbs was almost in tears. I accept that what she told me in that last answer was the truth. I accept that this accident and its effects have had a profound effect upon the plaintiff and a profound effect upon those intimately involved with him, such as his wife and children.
Young people are more resilient than older people. A young man with the plaintiff's injuries would be more able to adapt to such injuries than a man of the plaintiff's age. The plaintiff's "retirement years" have been blighted by the effects of his injuries. I accept that the plaintiff has suffered substantial pain and suffering, substantial anxiety and distress, substantial loss of amenity in his senior years, when he ought be able to relax and enjoy his retirement, to enjoy the maturity of his children and the infancy of his grandchildren, when he ought be able to travel freely and pursue his own hobbies and interests. I believe that the proper award for damages for non-economic loss is $250,000.

Past out-of-pocket expenses

Past out-of-pocket expenses have been agreed at $2,843. In view of the hospitalisations that the plaintiff has experienced, they seem improbably low but I am assured by Mr Roberts that because he was treated as a public patient there is nothing refundable to either the Wagga Wagga Base Hospital or the Gosford Hospital.

Past economic loss

Between 24 September 2011 and 10 June 2012, the plaintiff suffered no economic loss because he was paid sick leave, then his normal salary whilst performing selected duties and annual leave between 8 and 10 June 2012. However, the plaintiff does claim for the six weeks from 10 June 2012 to 26 July 2012, being part of the period he was in Gosford Hospital and recovering therefrom, and he claims in respect of that period $810 a week. The extent of the claim is $4,860 and I allow that sum.
The plaintiff effectively commenced his retirement on 4 June 2013. Thereafter he took long service leave and annual leave, but, had he not taken his leave at the end of his service, he could have taken it as a lump sum on retirement. Instead, he served out his period of long service leave and annual leave. His gross income at the time was $1108 per week, which amounts to $888 net per week. I allow the plaintiff as he claims that sum for the 152 weeks between 8 June 2013 when the plaintiff stopped work and 11 May 2016 when I heard submissions. That amounts to $134,976.

Past superannuation loss

Mr Roberts in his summary of the plaintiff's claim neglected to include in the claim for past economic loss the sum of $4,860. I trust I shall be forgiven for not adding to past economic loss the economic loss between 11 May and today's date. Mr Roberts claimed past superannuation loss based not on $139,836 but on $134,976. I would be most assisted by Mr Saunders if he could calculate 11% of $139, 836, which is $15,382.

Future economic loss

I accept that, but for the injury now in question, the plaintiff would have worked until he reached the age of 70, that is, until 30 November 2016 which at the time Mr Roberts made his submissions was 29 weeks. I allow $880 per week net for 29 weeks, which results in a figure of $25,752. Mr Roberts submitted that if the conventional 15% discount for vicissitudes were applied, that sum ought be reduced to $21,889. He went on to submit that in view of the very short period between now and that retirement age there should be no discount for vicissitudes. I accede to that submission. I therefore allow for future economic loss of $25,752.

Future superannuation loss

Mr Roberts submitted that future superannuation loss would be $2,832 if there were no such discount, and I accede to that submission. I therefore allow $2,832 for future superannuation loss.

Future out of pocket expenses

One thing that the plaintiff did not claim was any allowance for future out-of-pocket expenses. I discussed that with Mr Roberts during submissions. I cannot conveniently lay my hands on the transcript where that was discussed, but in my view some allowance must be made. There is always the possibility that the plaintiff will need to have surgery to the incisional hernia, and when one reads the plaintiff's general practitioner's records, one can see that he has had occasion from time to time to visit his general practitioner because of the effects of the motor accident involved. I allow the plaintiff for future out-of-pocket expenses the sum of $2,500.

Past gratuitous care

There is also a claim for past gratuitous care. The plaintiff described the sort of things that he used to do around his property, in particular his house, prior to the motor accident here in question, and what he has not been able to do since. I accept that during the period between his discharge from hospital and his return to work on 14 January 2012 the plaintiff was quite severely incapacitated. Not only did he need a walking stick for ambulation but he could not sleep in his own bed. He had to sleep on the couch because of the height of the bed compared to the height of the couch. I accept that he required a great deal of assistance from his wife and his children. Mr Roberts submitted that during that period I should allow two hours a day, or 14 hours a week.
On his return to work the plaintiff was obviously more able to get around but he gave evidence that when returning to work he came home tired and was unable to perform many of the activities he used to perform around his house and property. It has been submitted by Mr Roberts that in those periods, after the plaintiff's return to work but prior to his retirement, an average of approximately one hour per day or seven hours per week of assistance or work provided gratuitously to the plaintiff by his wife and/or his elder son, who remained a resident of Wagga Wagga, and his daughter who was also a resident of Wagga Wagga provided to him. I accede to that submission. The amount claimed by the plaintiff during the period between the accident and 4 June 2013 is set out in [149] of the plaintiff's written submissions, which are MFI 8. I accept the calculation made and the sum claimed of $21,539.

Future paid care

When the plaintiff retired he had more time available to him and was largely able to do many of the things that he used to do around his property and around his house because of the time available to him. However he gave evidence, and Mrs Hobbs gave evidence, of work that he could not do that was currently done by their son and by other family members, which if commercial assistance were available to him, they would avail themselves of. Mrs Hobbs gave one example of that in her evidence, when it was necessary to call in a pest controller to do work which the plaintiff would have been expected to have done, had he not been injured. The following submissions were put to me by Mr Roberts: "150. Whilst the plaintiff has returned to some, although not all, of his indoor domestic tasks, he is unable to do many of the outdoor tasks that are required around the house and the farm. These are largely performed by his eldest [sic] son but sometimes by his daughter. They are described by the plaintiff as including such things as gardening, fencing, cleaning eaves and gutters, etc, as well as wood chopping and using the chain saw. 151. Mrs Hobbs estimated that on average 2-3 hours per week are consumed by the plaintiff's children doing the outside chores that the plaintiff used to perform. She swore that if they could afford it they would pay someone to perform that work. 152. Although that evidence would suggest an entitlement to damages calculated at a commercial rate, evidence of such a rate is not before the Court, and the plaintiff simply pursues a claim based on the somewhat lower deemed rate for attendant care services, currently $29 per hour. The plaintiff maintains that claim for ten years, accepting that by his late 70s the plaintiff would have required assistance with that type of work in any event. The claim is for two hours per week at $29 per hour for ten years (412.9) - i.e., $23,948." I have omitted from that recital of Mr Roberts' submissions his references to the transcript, which can be found by looking at the written submissions. I should add that Mrs Hobbs gave evidence that she in fact was the person who looked after the family finances and would be in the best position to decide what ought be paid, and whether someone should be engaged to pay for things. I accept the plaintiff's submissions in this regard, and allow for future commercial assistance the sum of $23,948.
Because of my mathematical ineptitude I will give my list of heads of damages and my calculator to my Associate to add it all up. I trust, Mr Saunders, that you will be able to verify what my Associate tells me. Wait until he does it first. Did I make any mistake, Mr Saunders, on what I've said thus far, mathematically I mean, or misreading things?
SAUNDERS: No, your Honour, but I was just going to raise interest. Was that claimed in the statement of claim or raised in the submissions by Mr Roberts?
HIS HONOUR: I don't know. It's generally not claimed these days. It's a long time since I've seen interest claimed. The only time it's raised is generally claims that are not governed by MACA or the Civil Liability Act, such as police tort claims. Is interest available under MACA?
ANDERSON: I'm not aware of it, but I don't--
HIS HONOUR: I'm not aware of it either, and none is claimed--
SAUNDERS: Yes, your Honour.
HIS HONOUR: The total of the sums that I have allowed is $484,632. Is that correct?
SAUNDERS: Yes, I agree, your Honour.
HIS HONOUR: 70% of that sum is, if my pressing the buttons on the calculator be correct, $339,242.40. Is that right?
SAUNDERS: Yes, your Honour.
HIS HONOUR: Do you agree with that?
ANDERSON: Yes.
HIS HONOUR: I have now spent 17 hours giving these reasons for judgment. Are any further reasons for judgment required?
ANDERSON: I would just ask for a couple of further orders; one being that the exhibits be retained, and two that we have liberty to restore.
HIS HONOUR: Orders no, reasons I am asking.
ANDERSON: Then no, sorry, your Honour.

Civil Liability Act defences

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.
The defendant in particular relied on s 5I of the Civil Liability Act, which provides that there is no liability for the materialisation of an inherent risk. Whatever the inherent risk might be in this case has not been in particularised or articulated, but in the riding of horses there are inherent risks. However, there are inherent risks in riding a bicycle, inherent risks in driving a motor vehicle; and the plaintiff was injured not because of any inherent risk of the horse, Buck, but because by the driving of the second defendant of the first defendant's vehicle. I am unmoved by the defendants' reliance upon the various provisions of the Civil Liability Act.

Judgment and orders

Seventy per cent of the total of the damages that I have identified is the sum of $339,242.40. For those reasons I give verdict and judgment for the plaintiff against the defendants for $339,242.40.
Is there any particular argument about costs?
SAUNDERS: No, just the costs following the event, your Honour.
HIS HONOUR: I order the defendants to pay the plaintiff's costs.
What further orders did you want?
ANDERSON: Firstly that the exhibits be retained; and secondly liberty to restore for any further orders.
HIS HONOUR: I am on circuit next week, I just tell you that.
Exhibits to be retained for 28 days. Liberty to apply on three days' notice to my Associate.
Liberty to apply on three days' notice to my Associate because if, for example, you want a stay, my Associate will be able to tell you when I am available to do it, et cetera.

Amendments 27 July 2016 - MFI 10 attached 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: 27 July 2016

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (38 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (31)

Cited By (2)