Jones v Spackman

Judgment 1HIS HONOUR: This is an application under s 151D(2) of the Workers Compensation Act 1987. 2The defendant, Mr Graeme Spackman, is a racehorse trainer. The first two paragraphs of the plaintiff's statement of claim are admitted by the defendant. Those two paragraphs are: "(1) The Defendant, at all material times, carried on a business in New South Wales as a racehorse trainer at premises known as Boomerang Stud (Boomerang) and is liable to be sued in his own name. (2) The Plaintiff was employed by the Defendant as a stable hand/rider." The geographical evidence is somewhat unclear but it seems that the Boomerang Stud, also known as the Berrima Stud is set on a property known as Eleanora. The stud may be wholly on that property or it may also be on part(s) of another property. According to Mr Spackman's statement, the property occupied by the stud is approximately 100 acres and has three stables, yards for 40 horses, a swimming pool, a round yard, a sand roll and a horse walker. 3Mr Spackman first commenced working at the Boomerang Stud in 1996 as a pre-trainer and track work rider. Since May 2003 he has held the trainer's licence for the Boomerang Stud and it is accepted that he was, at the relevant time, the employer of the plaintiff and other persons engaged in the work of the Boomerang Stud. That stud breeds thoroughbred horses and prepares yearlings bred at the stud for sale. 4As manager of the stud, Mr Spackman supervised the staff which comprised 15 persons. They included track work riders, stable hands and horse breakers. The horse breakers also worked as stable hands. The plaintiff, Danielle Jones, and her sister, Leanne Pryor, worked for the stud preparing yearlings for sale and also "doubled up" as track work riders, stable hands and performed general duties. 5Leanne Pryor is the younger sister of the plaintiff. She commenced working at the stud in August 2002. The plaintiff commenced working there, according to Mr Spackman, on 27 May 2003. The evidence of Leanne Pryor suggests that she may have been senior to the plaintiff in the hierarchy of staff at the stud. In her statement, Leanne Pryor said this: "In or around July/August 2003, Kylie Gothan left, she was previously the broodmare manager. I was then offered to take over her role with Peter Walsh. I accepted the position and, in November 2003, Peter Walsh left to become a real estate agent. I took over the role of managing the foals, broodmares and yearlings. I was still employed by Boomerang Stud. The work with the yearlings and foals was seasonal. The yearling work commenced in November of each year, I recall on 1 November 2003 five yearlings entered the stable block. The following three weeks later, a further six yearlings arrived in the stable. From November each year until the sales are completed I work full time with the yearlings. I am required to educate the yearlings which involves to lead, walk, lunge, wash and brush them in preparation for the sales. I mainly do this work by myself, however each afternoon I round up five or so other staff to hand walk the yearlings. From time to time Danielle Jones assisted with the yearling preparation on [an] irregular basis, she became more involved in the week leading up to the Magic Millions at the Gold Coast in early 2004." That evidence suggests clearly that Leanne Pryor was the manager of the yearlings and that, from time to time, her sister would be called in to assist her in her work. The only significance of the place of Ms Pryor in the hierarchy of the stud is as to her ability to make admissions on behalf of the employer, Mr Spackman. When one reads Mr Spackman's statement of 28 October 2004, one might think that the plaintiff and her sister, Ms Pryor, were equally involved in the preparation of yearlings for sale. The statement of Mr Spackman does not suggest that Ms Pryor was superior in the hierarchy at the stud to the plaintiff. 6The plaintiff herself is a keen horsewoman. In her statement of 28 October 2004, made to an investigator retained by the defendant, the plaintiff advised that she had been involved with horses since she was five years old and that she had a good understanding of horses in general. In January 2004 the defendant, Mr Spackman, Ms Pryor and the plaintiff went to the Magic Millions on the Gold Coast. The ladies returned to the Boomerang Stud and recommenced work there on Wednesday 14 January 2004. Mr Spackman stayed one day longer on the Gold Coast and did not recommence his work at the stud until Thursday 15 January 2004. 7One of the yearlings at the stud has been identified as "Commands out of Accaude". This yearling is sometimes referred to as "Commands Colt". I assume that Commands was its sire and Accaude was its dam. In any event, the yearling was registered as "Your Wish" and, if it be necessary to refer to the horse in particular, I shall refer to it as "Your Wish". It appears that the yearling was foaled on 28 August 2002. At the time of the plaintiff's accident, 14 January 2004, it was nearly 17 months old. Your Wish was owned by the stud. According to a report of the private investigatior, Mr Lipovac, Your Wish had not been broken in at the relevant time and the only education with which he was provided was learning to walk and to run. However, it would appear that the horse had, antecedent to 14 January 2004, been shod. 8According to Ms Pryor, she and at least the plaintiff and perhaps even the defendant had discussed in Queensland their desire to make their horses "immaculate" for the purposes of upcoming sales. Amongst other things, they decided to clip the horses' hair. According to Ms Pryor, she had discussed at least with the plaintiff their desire to clip all the yearlings and, according to Ms Pryor, the plaintiff was particularly good at that task. On their first day back after the Magic Millions, 14 January 2004, the plaintiff completed her horse riding for the day in the morning of that day. Ms Jones, the plaintiff, then decided to commence clipping the yearlings. The statement of Ms Pryor continues thus: "We arranged for Phil Robinson to sedate the yearlings, this was introduced on advice from other strappers when away in Queensland as it makes it easier to attend to yearlings. It stops them from moving around. Phil advised that he only had one bottle and that he would have to spread the dosage over the six yearlings, this meant each of the six yearlings were only given 2 millilitres instead of 5 millilitres. Your Wish was given a smaller dosage [? the smaller dosage]. We completed the first yearling without incident and then commenced to clip the next horse which was Your Wish, I noticed its nearside hind shoe was half off and asked Phil to pull the shoe off. We were in the breezeway and commenced to clip Your Wish with the electric clippers, we had clipped the nearside front without accident, Danielle then commenced to clip Your Wish's nearside hind, I was holding him with a lead, I was directly in front of him. Danielle Jones finished clipping his leg and then without warning I heard a hit and then observed between the yearling's legs Danielle Jones's legs on the ground and heard the clippers dropped, she dropped to the ground. Your Wish was not playing up beforehand, he was placid and had struck Danielle without warning. I then moved Your Wish away from her, I then moved the yearling away quickly, I was surprised how quickly he moved for a horse that was supposed to be under sedation. He was sedated about two minutes before we commenced clipping. I turned the clippers off and ran straight to her and noticed Danielle had suffered facial injuries consistent with being kicked. She was unconscious and laying in a pool of blood. I clipped Your Wish about a month later without incident. On this occasion we did not sedate him." 9The statement of the plaintiff is, to a large extent, consistent with that of Ms Pryor. She indicates that around lunch time, after she had completed her riding duties, she went over to the stable block numbered 3 to assist her sister with the yearling preparation. She said that she commenced to clip the yearlings in that stable area. She indicates in her statement that she was experienced in performing that task as she cared for her own horses over a lengthy period of time. At that time the plaintiff was 34 years old, so she had been actively involved with horses for 29 years, since the age of five. Her statement then continues thus: "Prior to commencing clipping the yearlings they are usually sedated. I recall prior to clipping Your Wish, Phil Robinson attended the stable area and sedated Your Wish, prior to this I recall a comment from Phil saying that he did not know what type of sedative was being used on the horses. He said that he kept enough [for another colt known as or from Zedative]. I had clipped one yearling without incident. I then commenced to clip Your Wish's nearside front[,] this took about five minutes, I then commenced on his second [nearside hind] leg. The first leg was completed without incident. Your Wish did not appear to be agitated; he appeared to be placid. After completing the nearside hind leg I stood up and without warning I was kicked[.] I [have] no memory [of] what happened. I was knocked unconscious." 10Relatively contemporaneous workers compensation report forms prepared on behalf of the defendant indicated that this accident occurred about 1.30pm on Wednesday 14 January 2004. The only difference in timing is the employer's report of injury form made by the plaintiff on 23 January 2004, which indicates the time of the accident as being around 12 noon. 11There is no dispute that the plaintiff sustained a very serious injury. An ambulance was called and she was taken to the emergency department of the Bowral District Hospital. The emergency department medical officer made very concise and legible notes. He or she confirms a history of the plaintiff's having been kicked in the face by a horse, suffering from multiple facial bone fractures. The doctor goes on to note that the patient, the plaintiff, was unable to recall events but was able to tell him or her that she was standing, that a horse reared and hit her in the face with its hoof. That caused her to fall to the ground with a brief loss of consciousness of less than a minute. By the time the plaintiff was seen at the Bowral emergency department, the plaintiff was not confused. 12A plain X-ray was carried out of the plaintiff's cervical spine and there was a CT scan of her head and facial bones. The report of the CT scan shows a number of complex fractures of a number of facial bones. The short comment made by the radiologist, Dr Warwick Lee, is this: "There is a complex fracture of the middle third of the face combined with a left malar fracture and a depressed fracture of the left zygomatic arch. A fracture at the base of the right zygomatic is also present." When at the Bowral Hospital there were discussions with surgeons at the Liverpool Hospital concerning the need for plastic surgery and surgical attention by a maxillofacial practitioner. There was also an expressed need for the plaintiff to be seen by an ophthalmologist. The plaintiff was kept at the Bowral Hospital at least until 18 January 2004 when she was transferred to the Liverpool Hospital to consult with the specialist doctors at that institution. 13In addition to the injuries to her face, the plaintiff sustained dental injuries. On 2 February 2004 the plaintiff saw an oral and maxillofacial surgeon, Dr Mark Irving, whose rooms are at North Parramatta. Annexed to that document is a "treatment plan" but that suggests that it was printed on 17 August 2004. However, from the evidence before me that that may be only a later printout of the damage identified by a dentist which needed to be repaired. The total treatment plan appears to have involved dental work for $24,740. 14There is also a report from an endodontist, Mr Stephen Blackler, bearing date 6 December 2004 which discusses proposed further treatment for teeth numbered 16 and 47. Further treatment proposed for tooth 16 was valued at $1,720 and the endodontist merely suggested monitoring of the status of tooth 47 which was not yet the site of any symptoms. Amongst others, the defendant, through his insurer, Racing NSW, has arranged, from time to time, review of the plaintiff by dentists. 15In considering the extent of the plaintiff's injuries, it is important to bear in mind that, eventually, the plaintiff and the defendant agreed that she had 30% whole person impairment, representing 12% WPI for her cervical spine and ear, nose and throat and related structures, and 20% WPI for severe facial disfigurement. That agreement, reached on 17 April 2009, entitled the plaintiff to a lump sum of $52,500 under s 66 of the Workers Compensation Act 1987 and it was agreed between the plaintiff and the defendant that she was entitled to lump sum compensation for pain and suffering, anxiety and distress resulting from 30% WPI in the sum of $22,500. 16The parties have put before me very little medical evidence. However, it is clear that it took a long time for the plaintiff to reach the optimal improvement that she could from the injuries she sustained on 14 January 2004. For example, I know that on 1 September 2005 the plaintiff commenced seeing Dr Crawford, a pain specialist, who she continued to see from that time on a regular basis at least until swearing her affidavit on 29 May 2014. 17It is clear that a claim for workers compensation was made very promptly after 14 January 2004. Indeed, the evidence before me is that she continued to be in receipt of workers compensation payments until March 2014. It would appear, therefore, that the defendant has paid workers compensation to the plaintiff for over ten years. According to the plaintiff's affidavit, her weekly payments of compensation were only stopped after there was a "work capacity assessment". I understand this to be the modern approach to workers compensation: to let the claims manager decide if a person is entitled to compensation or not. 18However, early in the piece there was some irregularity in the payment of weekly compensation. In late 2004 the plaintiff was attracted to an advertisement which she had heard from an organisation called "Australian Injury Helpline". She phoned that service which referred her on to Messrs Leitch Hasson & Dent who can be briefly described as LHD. There she met Mr Tony Dyer. She had an interview with Mr Dyer on 3 February 2005. Following upon that interview, Mr Dyer wrote her a letter bearing date 7 February 2005 that raised a number of issues concerning her workers compensation claim. The first was that the plaintiff had two jobs. In addition to her job at the Boomerang Stud, the plaintiff was also the owner of the business known as the Fitzroy Falls Café. As I understand it, the plaintiff either rented that café or obtained it on licence from the NPWS and conducted the café a number of days each week. It appears that Mr Dyer thought that the plaintiff's earnings from self employment had not been taken into account in assessing her entitlement to weekly compensation and that needed to be attended to. The next item to which attention was given was the need by the plaintiff for remedial massage. The third was the plaintiff's entitlement to lump sum compensation under the Workers Compensation Act. Mr Dyer advised the plaintiff that, in addition to obtaining an assessment from the maxillofacial surgeon, the plaintiff should also have her neck "checked out". The letter ended with Mr Dyer advising the plaintiff that he would write to the insurer of the defendant to obtain copies of medical reports that it had which might assist LHD in assessing the plaintiff's lump sum compensation entitlements. 19The insurer of the defendant sent such reports as it had to LHD and, on 11 March 2005, Mr Dyer wrote to the plaintiff enclosing copies of them for her records and asking the plaintiff to advise LHD when her "condition has settled down" so that they could make a claim for WPI. Later in that year LHD wrote to the defendant's insurer about two new issues arising from the plaintiff's claim for workers compensation. It was alleged by the plaintiff that she was only being partially reimbursed for her travelling expenses and that part of her claim for dental treatment had been declined. There was a reply from the defendant's insurer on 9 January 2006 explaining the disagreement about the reimbursement of travelling expenses and pointing out that there had been no formal declining of liability for the plaintiff's dental treatment, rather that the treating doctor had refused to undertake further treatment because of a delay by the insurer in making payments to the treating dentist. 20On 12 May 2006 Mr Dyer wrote to the plaintiff, asking her if she'd yet finished treatment and asking the plaintiff to contact Mr Dyer's secretary to let the firm know if her treatment had been completed. The next letter is one that has not been put before me. It is a letter from the plaintiff to LHD dated 26 November 2006. It prompted a response from Mr Dyer on 4 December 2006. The substance of the letter is this: "Dealing with the last issue first, in order to qualify for Workplace Injury Damages (Common Law Damages) the Workers Compensation Act was changed to require that as a preliminary issue before the matter of negligence is even approached, you must have a 15% Whole Person Impairment under the WorkCover guidelines and have been paid that amount (at least) together with any amounts for pain and suffering. Unless that level of impairment is achieved then recovery of damages is not possible irrespective of whether or not there exists negligence on the part of your employer. We simply don't know whether [you have] achieved that level of impairment. Additionally at first glance we have some difficulty ascertaining the negligence, however if you can point us towards the methodology whereby the incident could have been prevented by some measures or measures taken on behalf of your employer which a reasonable person would in the circumstances have taken, then we are prepared to revisit that issue. Otherwise we don't really see that there would be good prospects of success in this regard, however we recommend that should you wish to do so that a second opinion should be obtained and any action taken prior to the expiration of the limitation period in January. One of the difficulties as we see it is that you may well not [have] achieved maximum medical improvement at this stage as there is still dental work to be undertaken and you may not have stabilised." The letter finishes with some remarks about economic information which is currently irrelevant. In her oral evidence, the plaintiff conceded in crossexamination that she knew that the limitation period referred to as ending in January ended in January 2007. It is clear that that which agitated Mr Dyer in December 2006 was not only issues relating to liability at common law but the issue as to whether the plaintiff would cross the statutory threshold by establishing 15% WPI or greater. 21It would appear that in 2007 conduct of the plaintiff's case at LHD was taken over by Mr David King. There is before me a letter of 26 June 2007 in which reference is made to earlier but undated correspondence and there is a notation that Mr King had recently had trouble in contacting the plaintiff by telephone. Mr King advised that he would like to arrange a medical examination of the plaintiff by an independent medical examiner, no doubt to ascertain the state of the plaintiff's health, in particular whether her condition was stable and as to what the WPI might be. Clearly, the plaintiff consented to that arrangement and, on 29 August 2007, the plaintiff was seen by Dr Kevin Bleasel, a neurosurgeon, at the request of LHD. Dr Bleasel thought the plaintiff had had "an excellent cosmetic result" as far as her facial surgery was concerned and the doctor paid tribute to the expertise of Dr Mark Irving, the surgeon who carried out the necessary procedures. 22According to the history obtained by Dr Bleasel, the plaintiff had returned to some work in March 2004 but did light duties only until June of 2005. The history goes on to record that she then became involved in political work and sought pre-selection for a Parliamentary seat based on Nowra but did not gain such preselection. However, it appears that her involvement in political activities ceased in about September 2005. 23Dr Bleasel believed that the plaintiff had WPI of 26%. However, according to Dr Bleasel, a large amount of her problems belonged to areas outside his own specialty. He suggested that the plaintiff should undergo psychometric testing by Mr Peter Rawling at the St Vincent's Clinic. He thought that there were migrainous types of headaches, the result of soft tissue injuries to her cervical spine and face, and they might be thought to be post traumatic migraine. The doctor expressed a poor prognosis and pointed out that there was no sign of any recent improvement of any significance. When discussing WPI, the doctor thought that the extent of her future impairment could be improved. 24When LHD received that report, a copy of it was sent to the plaintiff. LHD asked the plaintiff to provide them with an authority to make a claim for lump sum compensation and to commence proceedings in the Workers Compensation Commission if necessary. There was an informal claim made by LHD on the plaintiff's behalf for 26% whole person impairment on 19 September 2007 that was received by the insurer on the 26th of that month. In the same letter LHD asked the defendant's insurer to concede 15% WPI or greater. 25A more formal claim for lump sum compensation was made by LHD on 4 October 2007. Later, LHD received from the plaintiff's treating dentist, Dr Nichols, a report indicting that, as far as he was concerned, the plaintiff had a present WPI of 11% which would reduce with further treatment to 5% WPI. On 7 November 2007 LHD advised the defendant's insurer of the increased sum. On 25 March 2008, that is some four months later, the defendant's insurer made an offer to pay the plaintiff WPI of 20% and a relatively modest amount under s 67. However, there was no formal concession by the defendant's insurer that the plaintiff had a WPI of at least 15%. 26The next relevant occurrence, no doubt in response to the defendant's insurer's offer of 25 March 2008, was a letter from LHD to the insurer of the defendant, that might be seen to comply with s 280A of the Workplace Injury Management and Workers Compensation Act 1998. Section 280A does not mandate the notice; the notice appears to be mandated by ss 260 and 262 of that Act. Section 280A provides this: "A claim for work injury damages in respect of any injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages." Section 280B provides that lump sum compensation under ss 66 and 67 of the 1987 Act must be paid before the plaintiff can recover any damages under the modified common law provisions of the workers compensation legislation. Section 281 of the 1998 Act requires relevantly the present defendant to either accept the plaintiff's claim for work injury damages or to dispute it. Such a decision must be made within one month after the degree of permanent impairment first became fully ascertainable, as agreed by the parties or as determined by the approved medical specialist or, at the latest, within two months after the current plaintiff had provided the defendant with all relevant particulars about the claim. The letter of 24 April 2008 sought to provide all the relevant particulars. 27The defendant, via his insurer, responded to that claim by letter dated 20 May 2008. In that letter the insurer did not accept liability for the plaintiff's work injury damages claim and refused to admit that he was negligent, as alleged or at all, in causing the plaintiff's injuries. It would appear that, immediately after the insurer of the defendant denied liability for the plaintiff's work injury damages claim on 20 May 2008, Messrs TurksLegal commenced to act on the defendant's behalf. 28On 15 October 2008 the plaintiff made an application to resolve a dispute in the Workers Compensation Commission. The dispute was about the assessment of the plaintiff's whole person impairment. By operation of law, that stopped any limitation period running. The dispute concerning WPI was not resolved until 17 April 2009, as I have previously mentioned. The resolution of that dispute recommenced the reckoning of time for the purposes of the limitation provision, s 151D(2), albeit that the limitation period had, in fact, expired on 14 January 2007. 29On 24 April 2009 Ms Fletcher of Messrs TurksLegal wrote to Mr King of LHD. This was clearly within a week of the agreement as to WPI. In the letter of 24 April 2009, Ms Fletcher advised Mr King that, although she had not yet received formal instructions, it was unlikely that she would receive instructions to admit liability at common law. She again referred to the fact that the defendant's insurer had issued a notice disputing liability. The letter then refers to the absence of an expert report which Mr King clearly wished to delay until after the compulsory mediation which the 1998 Act enjoins. Ms Fletcher then invited Mr King to serve a pre-filing statement "in due course". 30Shortly before the agreement was reached about the plaintiff's WPI, Ms Fletcher had written to the private investigator previously retained by the insurer, Mr Lipovac, to carry out some further investigations. Mr Lipovac's report refers to a letter of instructions from Ms Fletcher to him bearing date 12 March 2009. 31It is necessary to return at this stage shortly to Mr Lipovac's first report. It is clear that reference was made by both Leanne Pryor and the plaintiff to Mr Phil Robinson administering a sedative to Your Wish. However, Mr Robinson was not interviewed by Mr Lipovac when he first was instructed by the defendant's insurer. The reason for that is that Mr Phil Robinson had left the Boomerang Stud in February 2004. In other words, at the time that Mr Lipovac attended the stud to carry out his initial investigations, Mr Robinson was no longer an employee. The statement of Mr Spackman was dated 28 October 2004, the statement of the plaintiff is dated 28 October 2004, and the statement of Leanne Pryor bears exactly the same date. In other words, one can accept that Mr Lipovac attended the Boomerang Stud on 28 October 2004. In summing up what had happened, Mr Lipovac wrote this in the body of his report: "Shortly before 1pm or thereabouts, Phil Robinson, one of the insured's employees, attended the stable block containing the yearlings and advised Leanne Pryor that he did not have enough dosage to sedate all six yearlings who were about to be clipped. It is understood the dosage is usually 5 millilitres per horse. On this occasion he only used 2 litres for each yearling. Leanne Pryor confirms Phil Robinson went about sedating the other yearlings including Your Wish... Leanne Pryor confirms after Phil Robinson administered the sedative, albeit a much smaller dosage than usual, she held the first yearling whilst the claimant completed the clipping using electric clippers in the breezeway of stable barn C. Thereinafter the yearling, "Your Wish", was then removed from his stable and placed in the breezeway with his head facing Leanne Pryor. She then held the horse whilst the claimant used electric clippers to clip the yearling's nearside front foot. The claimant completed the clipping of this area without incident. During the process "Your Wish" remained stable and calm. The claimant then went about clipping the nearside rear leg and completed the same. Leanne Pryor then confirms without warning she observed the clippers fall to the ground and the claimant just drop. Her view was obstructed by the yearling's head. She then moved "Your Wish" out of the way and noticed he moved way quickly, which was surprising for a horse supposed to be under sedation." 32Each party puts a different complexion on this first factual investigation carried out by Mr Lipovac. The plaintiff claims that it clearly was an investigation designed to ascertain whether there had been any common law negligence in the circumstances giving rise to the plaintiff's injury. On the other hand, the defendant says that this was the mere investigation of the factual circumstances surrounding a workers compensation claim and there can be many reasons for making such inquiries. Inferentially, the defendant asks me to accept that, if this were a true common law investigation, then attempts would have been made by Mr Lipovac to ascertain the whereabouts of Mr Robinson and to interview him to see if his recollection of events was the same as that, for example, of Ms Pryor. There is force in the latter submission. However, there is not much force, in my view, in the prior submissions on behalf of the defendant. The claim forms, hospital records and, no doubt, medical records all point to the plaintiff's accident as having occurred when she was at work in the course of her employment and that the accident was a very serious one. Sometimes employers find it necessary, if potential workers compensation claim may have a potentially large financial impost on its reserves, to make sure that the claim is entirely genuine by investigating it. Equally, insurers sometimes request factual investigations to try to ascertain whether there are any potential risks offered by an employer to his employees which could be obviated by good claims management, not with a view to reducing common law liability but with a view to reducing the incidence of further workers compensation claims. Equally, sometimes insurers arrange for factual investigations to ascertain details of the employer's business activity, details of the risks involved, details of the number of employees employed at a certain workplace, because often such things disclose an underdeclaration of wages by an employer or show unacceptable risk of further injury which might lead an insurer to decline to further insure an employer or to demand an increased premium which the employer might not be willing to pay. Such considerations largely fall away when I know I am here dealing with the horseracing business and we have a specialist insurer, Racing NSW. Specialist insurers ought know exactly the risks involved in the activities being carried out by their insured, in this case by a horse breeder and trainer. However, the fact that no attempt was made by Mr Lipovac to seek to find Mr Robinson and interview him does suggest that the defendant's insurer was not particularly concerned about common law liability when the investigation was made in October 2004. 33However, when it must have been clear that the plaintiff's WPI would exceed 15%, Ms Fletcher acted. She asked Mr Lipovac to find and interview Mr Robinson. Mr Lipovac did so. Mr Robinson was interviewed on 16 March 2009. He was then working at a stud at Werombi. Indeed, he was its assistant manager. He confirmed that he left the Boomerang Stud in February 2004. As at March 2009 Mr Robinson had 35 years' experience in the horseracing industry. That would take him back to 1974. Mr Robinson went on to state that, during his period of 35 years, he had a total of 25 years in dealing with administering sedatives to horses. The inference I draw is that, therefore, in about 1984 Mr Robinson commenced administering sedatives to horses. Although he has no formal qualifications in regard to the administration of sedatives to horses, he said that he attended many horses for administering sedatives. The inference to be drawn is that he had merely learnt how to administer sedatives to horses through the handson approach or hand-me-down approach used in many industries. All told, Mr Robinson had worked for three years at the Boomerang Stud. Amongst his duties were administering the majority of drugs administered to racehorses at that stud. He mainly administered a sedative identified by him as ACP. He described that in this fashion: "...this is a sedative for horses prior to any operation, it is also used a lot for horses in an attempt to calm them down, and back in 2004 this was commonly used throughout the industry. It was mainly used to calm horses down." 34As to the circumstances of the plaintiff's injuries, Mr Robinson said this: "I recall the events of [14] January 2004; I commenced work at around 6am. I was aware Boomerang Berrima Stud was preparing yearlings for upcoming sales. From memory there were six yearlings that needed to be prepared. I recall Leanne Pryor approached me around lunch time and asked if I could give a young colt by Commands a sedative. Leanne said that the colt was playing up a bit and would I give him a sedative. I agreed, I did not have to question Leanne Pryor or Danielle Jones's judgment as they were experienced and capable in their duties. The purpose of administering the sedative was to take the edge off the horse. I cannot recall how much dosage I administered. I usually give a dosage of 57 millimetres. Within a brief period of time I walked over to the yearling barn and administered unknown quantity of ACP to the Commands' colt. I cannot recall administering all six yearlings. After administering the sedative to the Commands' colt I would not have said anything specific as both Danielle Jones and Leanne Pryor were capable with horses. However prior to walking away I carried out a visual check of the Commands' colt and observed that he was loosening his appearance and his head dropped which is consistent [with] the sedative taking [effect], I was satisfied he was calm. I would have left the breezeway about one-two minutes after sedating the Commands' colt. I was satisfied that the horse was safe as any horse could be after providing a sedative. I first became aware of her facial injuries when Leanne Pryor rushed out from yearling barn and yelled out and was screaming[,] she was hysterical. I then rushed back to the barn and observed Danielle Jones lying on concrete floor in the breezeway, by this time the Commands' colt was back in his box." 35Mr Robinson went on to say that he did not inspect Your Wish after the incident and that Mr Pryor advised him that she did not know what had happened. One will see immediately a discrepancy. As far as Mr Robinson can recollect he was only called to the yearling barn to sedate one horse, Your Wish, which he sedated probably with ACP and probably with a normal dose of between 5 and 7 millilitres. According to Leanne Pryor, he was called to sedate six yearlings, did not have sufficient to sedate all of them effectively and used a reduced dosage which, it would appear, wore off very quickly. 36The statement obtained from the plaintiff might be consistent with either the version given by Leanne Pryor or the version given by Mr Phil Robinson. There is clearly a real issue to be ascertained by the tribunal of fact before considering the question of negligence of the defendant. The submission put to me by the defendant is that, because of the effluxion of time, in particular because of the effluxion of time between the plaintiff's accident and the time that Mr Robinson was interviewed, a period of five years, the defendant is disadvantaged in defending a common law action because of the natural loss of memory by the effluxion of time. 37Furthermore, the defendant submits that it is even more prejudiced because an attempt was made by Ms Fletcher to speak with Mr Robinson on 11 June 2014 and, in that interview by telephone, Mr Robinson said what one would expect him to say. Inter alia, the following is recorded by Ms Fletcher in her affidavit of 14 July 2014: "Me: 'Well, the clam is still ongoing and we will need an updated statement from you and may require you to come to Court to give evidence. Can I just ask you, how is your memory for the day of Danielle's accident?' Phil: 'Well, you know, as we get older, our memory gets worse. My memory of that day is not as clear as what it was.' Me: 'So would I be right in saying that you can't recall the dose of the sedative that you gave to the horse?' Phil: 'I can't remember, it's been a decade.'" However, it is clear that Mr Robinson had not, at that time, sought to refresh his memory from the statement had he had given on 16 March 2009, some five years earlier. What he might now say once he has refreshed his memory from his statement of 16 March 2009 I do not know. ADJOURNED TO TUESDAY 22 JULY 2014 38HIS HONOUR: When I adjourned yesterday afternoon I had finished discussing the statement obtained by Ms Fletcher on behalf of the defendant from Mr Phil Robinson, that statement being dated 16 March 2009. It would appear that that statement was not provided to the plaintiff until a copy of it was served with the pre-filing defence on 11 May 2012. I had also referred to Ms Fletcher's letter of 24 April 2009 addressed to LHD in which reference was made to a proposal by Mr King of that firm not to serve an expert report until after the compulsory mediation required by the workers compensation legislation. In that letter Ms Fletcher advised Mr King that she would need to obtain instructions in that regard. 39I also pointed out yesterday that Ms Fletcher invited the plaintiff to provide a prefiling statement. That prefiling statement was not served until 18 April 2012, almost three years later. It would appear that what preoccupied those instructed by the plaintiff was the question of liability. On 9 March 2009 Mr King had sent an email to Ms Fletcher stating this: "Don't you think liability is relative straight forward? I note that your client has denied liability, but I've never had a case where the insurer has accepted it. In cases like this, most insurers are willing to save time, and place money in the claimant's hand, rather than an expert's." That email was sent at 9.34am. Ms Fletcher replied at 4.43pm. In her email, Ms Fletcher referred to an attempt to speak to Mr King on the telephone but that was in vain as he was in a conference. The remainder of Ms Fletcher's email is this: "I don't think liability is quite that straightforward. However, the real issue would seem to be whether the horse was sufficiently sedated, which would appear to be more of a factual matter rather than something that an expert's report is required for. I am still conducting some inquiries of my own, which may change the position re liability (then again, it may not). I expect that my inquiries should be completed within four weeks. It's obviously your call as to whether you want to hold off serving a PFS [pre-filing statement] or obtaining an expert's report until that time." The inquiries which Ms Fletcher was making were clearly those involved in interviewing Mr Robinson. 40On 6 April 2009 Mr King wrote a letter to Dr Paul McGreevy at the Faculty of Veterinary Science at Sydney University. Dr McGreevy is an equine ethologist. Ethology is that branch of science that deals with animal behaviour. One could see, therefore, that Dr McGreevy is a specialist in the behaviour of horses. The letter sent by Mr King to Dr McGreevy was an attempt by Mr King to qualify Dr McGreevy to provide an opinion. The commencement of the letter refers to "our previous discussions". I assume they were telephonic communications between Mr King and the Doctor. It goes on to refer to the fact that LHD were acting for the plaintiff who sustained severe injuries when she was kicked in the face by a horse on 14 January 2004. The letter then enclosed the notice under s 281 of the 1998 Act which outlined the particulars of negligence that LHD had so far identified. The letter continues thus: "We are instructed that our client was allocated the task of clipping the horses' hooves. She had not been specifically trained nor given any warnings of indication as to the proper or safe method with which to perform this task. Our client alleges that the horse may have been inadequately sedated and that the stable manager who sedated the horse was not a qualified vet. Furthermore, she instructs us that the stable manager was more inclined to retain as much sedative as possible to use on another horse." The letter goes on to outline what was enclosed for the doctor's use. The first thing to note is that the plaintiff was not clipping the horses' hooves but rather clipping the horses' hair from the fetlocks of each leg. The reference to the "stable manager" is clearly a reference to Mr Phil Robinson. The material which was sent to the doctor to help him form an opinion would have been of no utility to him whatsoever. They were merely the plaintiff's claim for weekly payments of compensation and medical reports clearly relating to the injuries that she had sustained. 41In, I infer, response to Ms Fletcher's letter of 24 April 2009 to which I have earlier referred, Mr King sent to Ms Fletcher an email. The email was sent at 10.53am on 24 April 2009. It is this: "Don't worry about the expert issue, I've already commissioned one." Unfortunately, the expert's report was not generated until late November 2012, some three and a half years later. On 16 June and 6 October Messrs TurksLegal chased up LHD about outstanding economic material referrable to the plaintiff's claim. 42In the meantime, work was being done by counsel retained by LHD for the plaintiff, Mr Luke Morgan. Page 11 of the affidavit of Mr Trevor Wells, the plaintiff's current solicitor, sworn on 29 May 2014, gives details of work done by Mr Morgan. It is this: "11 April 2008 Conference 13 April 2008 Advice 6 June 2008 Review of evidence 14 August 2008 Advice 5 January 2009 Advice 17 March 2009 Advice 1 April 2009 Advice 15 July 2009 Review of evidence 13 October 2009 Draft pre-filing statement 5 March 2010 Settled pre-filing statement 16 March 2010 Review of evidence 14 April 2010 Draft statement of claim and chronology"