McCormick v Mt Pleasant Stud Farm Pty Ltd

District Court of NSW|2021-08-25

Judgment

The plaintiff in this matter claimed that the defendant, his employer, was negligent in the manner in which it required him to perform his duties as manager and trainer at its thoroughbred horse stud, known as Mt Pleasant Stud Farm. He claimed that, as a result of the defendant's negligence, he suffered injuries to his neck, right arm and shoulder that deprived him of any income earning capacity.
The claim was brought pursuant to the provisions of s 151E of the Workers Compensation Act 1987 (WCA) and was therefore governed by common law principles, modified as provided for in the WCA. Damages are limited by s 151G of the WCA to loss of past and future income.
The claim arose out of an accident that occurred at the defendant's premises on 29 December 2014. The plaintiff fell from a horse, Margot, that he was breaking in.
The defendant denied any breach of duty and challenged the plaintiff's claim of injury and his claim to be permanently unfit for employment. The defendant also relied on ss 151N and 151O of the WCA in alleging contributory negligence and voluntary assumption of risk.

The accident

The plaintiff selected Ms Bolwell to assist him on 29 December 2014. He said he started on that day at 6.30 am with the preparation of the horse, Margot, for the weight test to the point where she was fitted with a head stall and a bridle and brought out to the sand roll (or round yard). Ms Bolwell accompanied him carrying the necessary equipment. Margot was described as a big horse, weighing about 500 kgs.
When inside the sand roll, the plaintiff replaced the short lead with a long rope and instructed Ms Bolwell to place the saddle on the horse. He lunged her with the saddle, took a pause to tighten the girth and lunged her in the opposite direction. After another pause, he undertook a process that he called short reining.
At this point the plaintiff and Ms Bolwell put on helmets and vests and moved the horse to the side of the sand roll to perform the weight test. The horse stood facing the fence at a 45 degree angle. Ms Bolwell stood close to the plaintiff and close to the horse, holding her with a short lead. The stirrups were pulled down, the saddle moved around and weight pushed down on each side.
The plaintiff told Ms Bolwell that he would get on the horse. They were still standing shoulder to shoulder and the plaintiff was able to see Ms Bolwell in his peripheral vision.
The plaintiff took the reins, put his foot in the stirrup and put on some weight, backed off and then laid over the saddle, patting the horse's flanks on each side with his arms and legs. In the normal course, he would then step off the horse and move to undertake the same process on the opposite side.
At this stage, Ms Bolwell was standing close to the horse's head with its nuzzle close to the bicep of her left arm. As the plaintiff stepped down, the horse moved, or shied. His left foot became caught in the stirrup. The other foot was on the ground. The movement of the horse extended the space between his legs so that, as the plaintiff described it: 'I'm doing the splits' [5] .
The plaintiff said he saw that Ms Bolwell had moved from her position at the horse's head and was struggling. He decided to hop to close the gap between his legs because he thought Ms Bolwell was going to lose the horse.
The plaintiff said: My foot's stuck in the iron, and I glanced for Mel, but she was not there, so I turned and looked, and saw that she was on the end of the lead. I said to Mel, "Can you get to the horse?". And when I had the further look, I realised she was [in] trouble herself. I couldn't maintain the position I was in, so, I tried to hop close. I told Mel, "I'm going to have to hop." And as soon as I hopped, the horse reacted badly, shied, reared, and I got flipped, like the end of a stockwhip, on the ground. That's what I was like. I was in this position, and I was flipped backwards, like so, and I landed heavily on the ground across here. And then I got dragged about 4 metres, and my foot was still stuck in the iron, but then it came out. [6]
When using the words 'across here' the plaintiff indicated that he fell to the ground impacting with the right side of his shoulder and neck.
While he was lying on the ground, the plaintiff heard the horse running around until Ms Bolwell recaptured her.
The plaintiff said that never before had he lost control of a horse in this fashion when breaking it in.
To this point the factual evidence was unchallenged.

LIABILITY

The dispute between the parties involved the issue of whether Ms Bolwell was the appropriate employee to assist the plaintiff in the weight testing process.
The plaintiff said he had previously been assisted in this process by Ms Lane who was not working at the time because she suffered an injury. Ms Lane was described as bigger and more experienced than Ms Bolwell.
The plaintiff said that he had several conversations with Mr Hamilton in 2014 when he asked if Ms Lane could return on light duties with a view to having her fit for the assistant's duties when he planned to start breaking in work in June 2014. He said Mr Hamilton refused these requests.
By October or November 2014 he was some months behind with the breaking in process because 10 to 12 of the horses bred on the property were at the age where this work was normally done. He spoke to Mr Hamilton two or three times about the services of another employee, Bob Stewart, who was big and strong and very capable around the foals. He told Mr Hamilton that he needed to register Mr Stewart with RNSW as a stable hand so that he could assist with the breaking in.
Mr Hamilton's response, he said, was: 'I've told you it costs $2 more an hour to employ them with Racing New South Wales. Again, you and Mel will have to do the best you can with all the breaking in and training. [7]
Mr Hamilton denied that any conversations of this nature took place. He described it as 'absurd' to suggest that he would refuse to pay an extra $2 an hour to an employee when he was paying $127,000 per annum in wages to his staff. He said the plaintiff, as trainer, had the responsibility for allocating tasks to the staff and that he played no part in the day to day operations of the horse training facility.
The plaintiff said he told Mr Hamilton of his concerns that, because of her size, Ms Bolwell did not have the physique or strength required to assist him safely.
The plaintiff and Mr Hamilton agreed that In December 2014 Ms Bolwell was 19 years old, 155 centimetres tall and that she weighed between 45 and 49 kilograms. They also agreed that Mr Stewart was tall and of significantly greater weight than Ms Bolwell. The plaintiff also said that Mr Stewart, although still in his 20's and relatively young, had considerable experience with horses and he had observed him as capable in managing horses generally.

Credit

Determination of the issues in this matter depended significantly upon my assessment of the credit of the plaintiff and the defendant's director and shareholder, Mr Roderick Hamilton.
The conflict between the plaintiff and Mr Hamilton concerned the extent to which each had responsibility for the staffing of the defendant's enterprise and the allocation of tasks to staff members.
Mr Hamilton said the plaintiff was entirely responsible for the defendant's business that related to breeding and training race horses. Matters of staff engagement and their rates of pay, he said, were left to his office manager. He said that his role at the stud farm was as owner and observer of what was taking place [8] and that he was not directly involved in the day to day running of the farm but he was aware of what was going on [9] .
He was referred to a statement dated 16 April (year not specified) that he signed. He agreed that in that statement he said: As a director and owner of the stud farm, I am involved in the day to day running of the farm [10] .
He then conceded that he had been involved in the day to day running of the stud farm from the time it was established in 1976 and that he managed many aspects of its operations, including financial planning, engagement and management of staff, suppliers and service providers, maintenance and breeding programs.
On the question of the management of staff, he agreed that he was responsible for the selection of staff, payment of their wages, setting their hours of work and dealing with their concerns.
He did not agree initially that he made decisions concerning the duties that each staff member would perform. He said this was a matter for the plaintiff as manager. Mr Hamilton was pressed on this matter as follows: Q. So even if Mr McCormick might come to you from time to time with recommendations about what staff should or shouldn't do, you ultimately, drawing upon whatever advice you received, drawing upon your own experience, would ultimately make the decision about that aspect, wouldn't you? A. Well, with due consultation with the farm manager. [11]
Mr Hamilton was similarly reticent in his evidence concerning the completion of documentation associated with the registration requirements of RNSW.
The plaintiff insisted that the rules of RNSW mandated that only those registered as stable hands were permitted to work with him in training race horses.
Mr Hamilton denied any involvement in the completion of the plaintiff's trainer's licence renewal for the year 2014/2015 [12] . He denied any familiarity with the requirement to list those employed as stable hands. He was shown his handwriting on the document. At one point he hand wrote on the application form his name and telephone number as the person in charge of the stables in the plaintiff's absence. At another, he added his name to the list of current employees.
Although a director of the defendant and the person involved with its day to day operations, Mr Hamilton, a certified practising accountant, appeared to have little knowledge of the financial aspects of its business. He agreed that the defendant's operations at the stud farm ran at a loss but he was unable to state the amount of the loss. He denied any knowledge of the rates of pay for the defendant's staff. He said he left the matter of what was paid to his employees entirely to his office manager.
Mr Hamilton acknowledged that he was aware that the plaintiff had fallen from a horse and that he had been injured as a result. He said there was no suggestion that the plaintiff was medically unfit when he returned to work in late January 2015 after a holiday. He said the plaintiff came back and worked as normal. He denied any knowledge of a medical certificate [13] dated 11 February 2015, in which the plaintiff was certified to be fit for restricted duties with the recommendation that he perform office duties and that there be no handling of horses.
The plaintiff said that he handed this certificate to the Mr Hamilton on 11 February 2025 and that he responded: 'That's it, I'll have to get rid of you' or something. [14]
On 13 February 2015, Mr Hamilton handed the plaintiff a letter of termination [15] . His employment with the defendant was terminated 'forthwith'. The reason given was that there was to be a restructure of the defendant's business and the position of trainer was no longer needed. In evidence, Mr Hamilton said, the restructure involved reversion to the practice the defendant adopted prior to the plaintiff's engagement, which was to send horses off the stud farm for breaking in.
Mr Hamilton said, having no knowledge of the medical certificate dated two days before the letter of termination, it was not the factor that brought about the termination of the plaintiff's employment.
He said he had been considering a restructure for some months towards the end of 2014. He had not spoken of it to the plaintiff before he took annual leave in January 2015 because he wanted him to enjoy his overseas holiday. He had not told the plaintiff when he returned to work in late January 2015 because he was waiting for the right time to tell him.
Mr Hamilton was reminded of his evidence that the defendant had initially employed the plaintiff as farm manager with no role in race horse training. He was asked why the plaintiff could not have reverted to that position. Mr Hamilton agreed that the defendant continued to need a manager for the farm. He said he terminated the plaintiff because the defendant would be able to manage with someone of lesser calibre.
It was submitted on the defendant's behalf that Mr Hamilton made a number of concessions against the interests of the defendant and therefore his evidence should be preferred to that of the plaintiff. I did not regard as concessions his adoption of what was contained in written materials when it conflicted with his oral evidence. Rather, I regarded them as admissions and indications of attempts to mislead the Court.
Mr Hamilton's evidence was unsatisfactory and unconvincing in many respects and I concluded that his evidence as a whole was unreliable.
Mr Hamilton ultimately agreed that he was very much involved in the day to day running of the defendant's undertaking and with the staffing of its operations.
It was clearly not the case, as initially claimed by Mr Hamilton, that he was unaware of the requirements for registration of stable hands with RNSW. His evidence to this effect was unacceptable in the face of evidence that Mr Hamilton was himself registered and that he added his own name to the list of registered stable hands in the licence renewal application for 2014/2015. Further, I did not accept that a person who had been involved in the thoroughbred racing industry for 28 years was unaware of the reasons for this requirement.
I had no confidence in his assertion that the termination of the plaintiff's employment two days after the date of the medical certificate of 11 February 2015 was entirely coincidental. Whether coincidental or not, it had the appearance of a cost saving measure in that a farm manager of lesser calibre than the plaintiff would command a lesser rate of pay.
I therefore did not accept as plausible Mr Hamilton's apparent lack of concern for the additional cost of wages involved as a consequence of registering Mr Stewart or his claimed ignorance of the size of the losses suffered by the defendant.
The plaintiff's evidence on this aspect of the dispute was clear and consistent, although at times he displayed impatience with cross examination designed to test his version of events.
For these reasons, I preferred the evidence of the plaintiff and I accepted that he did request of Mr Hamilton that Mr Stewart be registered with RNSW as a stable hand so that he would be available to assist with the breaking in of horses. I accepted that Mr Hamilton refused that request.

Expert Evidence

Mr Gary Matthews prepared an expert report dated 4 December 2020 [16] that supported the plaintiff's views on the attributes required of his assistant. The report dealt with the breaking in process and confirmed that the steps taken by the plaintiff in preparing the horse for the weight test stage were appropriate and standard practice in the thoroughbred industry. He also provided opinion concerning aspects of equine behaviour.
The defendant raised the following objections to the admission of the report into evidence: 1. The statement that 'a larger, stronger and more experienced handler' should have been made available to the plaintiff, left to speculation the precise dimensions of an appropriately experienced handler. I did not accept that represented a deficiency in the report. Rather, it was a factor to be taken into account in determining the question of the alternatives that might reasonably be available to render the weight testing process less hazardous. 1. The aspects of the report that dealt with equine behaviour were also speculative and not supported by reasoning or expertise. I did not accept that the reasoning behind the opinions expressed was inadequate. Mr Matthews explained in some detail the features of the horse's brain that were to be considered in setting up a system of work to undertake the breaking in process.
As to experience and expertise, I noted that the curriculum vitae provided by Mr Matthews set out his 30 years of experience in the thoroughbred horse industry as a jockey, trainer, presenter and consultant. In particular I noted that he presented seminars in Australia and the USA and wrote articles for publication on the topic of equine brain function and the effect on the horse of human interaction.
I accepted therefore that Mr Matthews' expertise and experience were sufficient to allow me to draw assistance from the opinions expressed in his report.
Mr Matthews' reasons that supported his opinion that an assistant of greater stature and strength was required were: 1. Experience provides the ability to foresee that an animal is becoming distressed and to take appropriate measures; 2. As herd animals, horses yield to the dominant member of the herd. Dominance depended upon size and strength; and 3. In times of stress, a horse will look to the dominant leader of the herd, that is, a horse that is bigger and stronger to decide its reaction. At the weight testing stage of the breaking in process, it is the assistant who fulfils this role. A person of smaller stature would not be trusted by the horse for this purpose.

Findings of fact

On 29 December 2014 the plaintiff undertook the weight testing process involved in the breaking in of the thoroughbred horse, Margot.
Margot was a large horse, weighing about 500 kgs.
At the time of the plaintiff's accident, the weight testing process was known to both the defendant and the plaintiff to be hazardous because of the unpredictable nature of large, young horses, such as Margot.
In order to minimise the hazards involved, it was necessary that the plaintiff, as trainer, be assisted by a person capable of controlling the horse if she became unsettled during weight testing.
RNSW rules mandated that the assistant be registered as a stable hand.
The plaintiff had available to him two persons employed by the defendant who were registered with RNSW, Ms Bolwell and Mr Rory McCormick, both of whom were unsuitable for the role.
Prior to 29 December 2014 the plaintiff requested on a number of occasions that the defendant arrange for another employee, Mr Stewart, to be registered as a stable hand so that he would be available as an assistant for the purposes of breaking in the defendant's thoroughbreds.
Mr Hamilton, on behalf of the defendant, denied these requests. There was a high probability that he was influenced in denying these requests by the additional cost of registering Mr Stewart as a stable hand.
It was known to both the defendant and the plaintiff that Ms Bolwell was of slight build being 155 cm tall and weighing 45-49 kgs.
It was known to both the defendant and the plaintiff that Mr Stewart was of larger physique, being taller and of substantially greater weight than Ms Bolwell.
The plaintiff was left with no choice but to select Ms Bolwell for the role of assistant on 29 December 2014 because she was more appropriate for this role than the only other registered stable hand, his schoolboy son, Rory.
The accident occurred when Ms Bolwell lost control of Margot after she became unsettled.
Ms Bolwell lost control because she did not have the physique or strength to exert command over Margot or to regain control once it was lost.

Duty of care

Of the many particulars of negligence set out in the Amended Statement of Claim, the parties addressed only the following: (vii) Failed to control risks associated with the breaking in process. (viii) Failed to provide safe premises for the plaintiff to carry out the breaking in process in that the facility/yard did not have a suitable surface such that if the plaintiff dislodged or fell from the said horse any injury would have been minimised. (ix) Failed to provide any or any proper assistance as would have been reasonable to assist the plaintiff in the breaking in process. (x) Failed to adhere to the requests of the plaintiff made prior to the subject injury for suitable assistance to be provided. (xii) Failure to provide an assistant of appropriate size, experience, height, stature and/or strength. (xiii) Failure to provide an assistant, registered by Racing New South Wales, of appropriate size, experience, height, stature or strength and/or failure to inform the plaintiff that there was no need for registration.
The plaintiff did not press particular (viii).
The defendant acknowledged, as the plaintiff's employer, that it owed him a non-delegable duty of care. It resisted a finding of breach of that duty.
The parties reminded me that, in deciding whether there has been a breach of duty of care by the defendant, guidance could be found in this extract of the judgment of Justice Mason in Wyong Shire Council v Shirt [17] : In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff, or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The defendant accepted that its duty of care to the plaintiff was non-delegable and referred me to the following extract from Czatyrko v Edith Cowan University [18] : An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of the task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work.
The non-delegable duty does not amount to a strict liability. The duty of the employer is, however, of a special or more stringent kind [19] .
It was not necessary in this case to consider whether the risk was remote or far-fetched or fanciful since the defendant put to the plaintiff, and the plaintiff agreed, that breaking in horses was an inherently dangerous process where it was necessary to deal with large and heavy animals that could behave unpredictably.
It follows from the authorities that a reasonable person in the defendant's position, acting reasonably through Mr Hamilton, would take reasonable precautionary action to guard against this risk of injury.
There was no dispute that the precautionary action customarily taken was to provide an assistant capable of controlling the horse to be weight tested. It was necessary that the assistant be of appropriate experience and physique. There were two employees qualified by registration with RNSW who were available to assist the plaintiff. Mr Rory McCormick was inexperienced and Ms Bolwell was of slight physique.
There were available to the defendant a number of alternatives that could have provided the plaintiff with additional protection against the acknowledged risk. One was to register Mr Stewart with RNSW. He was an employee of appropriate height, weight and experience to act as the plaintiff's assistant. Registration and use of Mr Stewart would not have resulted in undue expense or inconvenience to the defendant.
Other options were to bring back Ms Lane or, as was done after the plaintiff's accident, to outsource the breaking in work.
Mr Hamilton agreed that he understood that the defendant was responsible for providing a safe system of work for its employees. He said he considered the question of whether Ms Bolwell should be used in the breaking in process and he concluded that she would be very competent for that task.
Mr Hamilton rejected the advice of the plaintiff that Ms Bolwell was inappropriate for the particularly hazardous task of assisting in the weight testing process. In this advice the plaintiff was supported by expert evidence. Mr Hamilton rejected the alternatives proposed by the plaintiff.
I was satisfied that Mr Hamilton caused the defendant to be in breach of its duty of care in failing to consider adequately the risk to the plaintiff in providing him with an assistant who was not capable of controlling the horse to be weight tested by reason of her slight physique.

Causation

The defendant argued that it had not been established that any breach of duty on its part was causative of the plaintiff's injuries because it was purely speculative [20] to suggest that the accident would have been avoided by the provision of an appropriate assistant.
In Gittani Stone Pty Limited v Pavkovic [21] at [43] Hodgson JA said: What happened was an eventuation of the risk which was thus unreduced because of the employer's breaches of duty, or to put it another way, the employer's breaches of duty materially increased the risk of injury to the worker, and that risk eventuated.
Again the defendant relied on the evidence of the plaintiff that riding a young horse, particularly on the first occasion was a high risk activity and that a two year old horses tended to behave unpredictably. Further, it was argued that the injury occurred at a second stage, that is, after Ms Bolwell had lost control and the horse reacted violently to the point where no assistant would have been able to prevent the accident.
The only evidence to which the defendant could point to support the proposition that the harm caused to the plaintiff was inevitable was this part of the evidence of the plaintiff: Once it reacted violently it went up in the air. Yes. From the distance away from the horse, yes. From a handler two metres away from the horse there - once she - once the horse reacted violently, you would - you would not be able to - there's no coming back. [22]
In submitting that the plaintiff's evidence established that the accident could not have been avoided, the defendant overlooked his evidence, that before circumstances arrived at the point to which the plaintiff was referring, Ms Bolwell had lost control of the horse. The subsequent behaviour of the horse that caused the harm to the plaintiff was the result of that initial loss of control. The initial loss of control was caused because Ms Bolwell did not have the strength to maintain control. She did not have the required level of strength because of her slight physique.
The defendant's proposition was contrary to authority that established that the appropriate inquiry was whether the breach of duty materially increased or contributed to the risk of injury.
The defendant also submitted that causation depended on the plaintiff's proving to the Court's satisfaction that the presence Mr Stewart, or someone of an unspecified greater strength and stature, would have changed the outcome or that the failure to provide an assistant of appropriate strength and stature substantially increased the risk.
This proposition was also contrary to authority. In Naxakis v Western General Hospital (1999) 197 CLR 269 at [31] Justice Gaudron said: In that situation the trier of fact … is entitled to conclude that the act or omission caused the injury in question unless the defendant established that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.
In Gittani Stone, Justice Hodgson said [23] that: It is very difficult to make detailed findings on what would have happened in the event that none of the breaches had occurred, or in the event of various possible combinations of avoidance of breaches of duty. In those circumstances, in my opinion, it is appropriate that the Court should take a robust and common-sense approach, without attempting to make such detailed findings: See March v E. & M.H. Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506; Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307
I was satisfied that the defendant's breach of duty of care materially increased the risk of injury to the plaintiff and that the risks involved in the weight testing process eventuated.
I find the defendant liable in damages to the plaintiff.

Contributory Negligence and Voluntary Assumption of Risk

These defences can be dealt with together since they each involve considerations of whether the plaintiff failed to take care for his own safety.
It was not suggested to the plaintiff that he was negligent in steps that he took in the course of carrying out the weight test on 29 December 2021. The claim was that, in the knowledge that Ms Bolwell was ill equipped to fulfil the role of assistant, he proceeded with it at all.
The basis for the claim that I reduce the plaintiff's damages was that he was very experienced, in control of the process and that he had the ability to decide not to proceed with his breaking in duties if he considered it placed him at risk of injury.
The plaintiff gave evidence that, because of his concerns, he delayed the work to the point where the horses were two years old and breaking in was becoming imperative. He attempted unsuccessfully to persuade Mr Hamilton to provide him with an appropriate assistant. His choice was to proceed with or to abandon the breaking in process.
The defendant contended that there was no evidence that the plaintiff's employment was threatened. There were two reasons why I rejected this contention. The first was that it was central to the plaintiff's position with the defendant that he not only attend to the breeding of thoroughbred race horses but that he also train them. To refuse to do so, in direct disobedience of the direction given to him by Mr Hamilton, would make his position very precarious. The second was the plaintiff's employment was in fact terminated after it became apparent that the plaintiff's injury disabled him from continuing with the training work.
I did not accept that the plaintiff voluntarily undertook the weight test process on 29 December 2014 when, notwithstanding his own reservations, he had clear instructions from Mr Hamilton to do so.
I did not accept that the plaintiff failed to take care for his own safety when, notwithstanding his own reservations, he undertook the weight test process on 29 December 2014 in accordance with clear instructions from Mr Hamilton to do so. I did not accept that, realistically, the plaintiff had a choice in the matter.
The defences of contributory negligence and voluntary assumption of risk are dismissed.

Work History

The plaintiff completed his education to year 10 and worked with horses for the whole of his working life. He started horse riding at the age of four and did trackwork in Goulburn while he was still at school. He was apprenticed as a jockey when he left school. He completed two years of the five year apprenticeship before outgrowing his prospects as a jockey.
The plaintiff was first licensed as a trainer at the age of 21 and he held a trainer's licence or was registered as a stable hand continuously until 2006. He provided details of his training work up to 2006, some of the time in England and Ireland. From 1989 to 1991 he worked part time as a painter and decorator while continuing to train horses and he also assisted as a casual in his mother's business.
In 2006 he took a position with Equine Nutrition Systems Pty Ltd as area manager of a large part of NSW extending from southern Sydney to the Victoria/NSW border. His work involved delivering feed and nutritional supplements for thoroughbreds and visiting clients on a six-weekly rotation. In 2007 he was engaged as manager of the thoroughbred stud at Heritage Park where he undertook work in pretraining and breaking in. In 2012 he took the position with the defendant.

The injuries

Unsurprisingly, the plaintiff had some relevant medical history. At the age of 19 a horse rolled on him, fracturing his pelvis and damaging his lower back. He denied that he suffered any consequent significant low back issues, apart from occasional episode of back pain for which he took pain killing medication until the episode was over. The plaintiff denied that this issue with his low back caused him to lose a day's work. In February 2010 he suffered an injury to his foot. In May 2010 he injured his left thumb.

Injuries and Treatment

The plaintiff said that when he fell from Margot on 29 December 2014 he struck the ground very hard. He fell onto the right side of his body, landing on his right shoulder and his neck. He remained on the ground while the horse continued to run around the sand roll. When Ms Bolwell recaptured the horse he stood and walked out of the sand roll and laid down again until Ms Bolwell and Mr Stewart assisted him to Ms Bolwell's car.
Ms Bolwell drove him to his home. The plaintiff's wife took him to Campbelltown Hospital where he was x-rayed and discharged. The plaintiff said the next day he was feeling very unwell with particular concern for his right arm, the movement of which was very restricted. He consulted his general practitioner who arranged for an ultrasound.
He took annual leave and went on a planned family holiday in China where, he said, he had assistance with luggage from his children and he spent most of his time watching Chinese television.
When he returned to work he was unable to lead a horse with his right arm and he did little but supervise. On 11 February 2015 his general practitioner certified him as unfit for work with horses. His employment was terminated on 13 February 2015.
The plaintiff's general practitioner referred him to Dr Hartnell, an orthopaedic surgeon. After the failure of physiotherapy to resolve the condition and after a number of radiological investigations, the plaintiff was diagnosed with a rib fracture and a tear of the supraspinatus. Dr Hartnell's opinion was that the rib fracture was causing the pain complained of by the plaintiff in the region of his scapula. Dr Hartnell suggested a period of three months rest of the right shoulder.
The plaintiff continued to suffer considerable pain and discomfort. An ultrasound guided injection provided temporary relief only. In April 2015, the general practitioner noted that the plaintiff was emotionally disturbed with anxiety and distress at his continuing situation and his inability to return to work.
In June 2015 Dr Hartnell performed surgery to repair the supraspinatus of the plaintiff's right shoulder and right biceps tendon. This did not improve the plaintiff's condition and he continued to suffer with significant pain and discomfort in his shoulder, his neck, upper back and scapula. He reported problems with disturbed sleep and he began to suffer gastrointestinal symptoms as a side effect of the medication that was prescribed to deal with his pain.
Dr Bashford, a rehabilitation specialist, was consulted in October 2015. He diagnosed adhesive capsulitis, facet joint pain in the low cervical or upper thoracic area and increasing psychological issues. Dr Bashford recommended pain management.
Matters did not improve and in December 2015 the plaintiff collapsed on a social occasion, complaining of low back pain, diarrhoea, nausea and epigastric pain. He was treated at Shoalhaven Hospital.
In January 2016 Professor Cousins was consulted for pain management. He arranged for physiotherapy and psychological counselling. In March 2016, the plaintiff consulted another orthopaedic surgeon, Dr Hughes who arranged a further MRI and diagnosed capsulitis. In May 2016 Dr Hughes attempted to provide pain relief by way of another ultrasound guided injection of local anaesthetic. Once more, the relief provided was short term only.
The plaintiff continued to seek specialist advice throughout 2016, 2017 and 2018. They included continued consultation with Dr Hughes, Professor Cousins, Dr Farey, spinal reconstructive surgeon, Dr Duckworth, shoulder and elbow surgeon, Dr Saunders, sports and exercise physician and Dr Hungerford, musculoskeletal physiotherapist. Further radiography demonstrated degenerative disc disease at C3/4, C4/5, C5/6 and C6/7. The treating specialists consistently recorded muscle wasting and restriction of movement in the right shoulder region together with restriction of movement in the cervical spine. The clinical records of the plaintiff's general practitioner consistently reported symptoms of pain and discomfort, disturbed sleep and mood disorders.
During this period further nerve blocks were undertaken without long term benefit. Dr Hungerford's manipulative therapy provided short term relief only. Other suggestions for treatment included the option of further surgery or the use of a spinal stimulator. The defendant's insurer declined to provide funding for a spinal stimulator and the surgery proposed was said to be unpredictable as to the prospects of success.
Ultimately, Dr Duckworth advised him that surgery would not assist him. He recommended that the plaintiff return to chronic pain management.
The plaintiff's continuing gastro-intestinal issues resulted in his consulting with Dr Kim and Dr Greenberg. Dr Kim performed a gastroscopy and colonoscopy in October 2018. He reported findings of reflux oesophagitis with chronic inflammation. Dr Greenberg confirmed that this condition was the result of the medication provided to the plaintiff to deal with his symptoms. Dr Greenberg also noted that the plaintiff's psychological condition was affected by his symptoms setting up a cycle of interrelated symptoms.
A further attempt at pain management was made with Dr Wallace in February 2020 and Dr Shetty in April 2021. The plaintiff continued with conservative treatments of physiotherapy, massage and psychological counselling.
The plaintiff gave evidence of continued pain and restriction in movement. He said he suffered from headaches about two times per week, with constant restriction in movement in his neck and pain at fluctuating levels. He had constant pain in his scapula region that was relieved by rolling his shoulder, taking a walk, lying flat for a period of time, taking medication or taking a hot shower. He had virtually constant pain in his upper spine and fluctuating pain in his low back.
The plaintiff demonstrated that he was able to move his straight right arm in a forward motion to about 45 degrees, although on a good day he could achieve 60 or 70 degrees of movement. He had very little backwards movement in the arm. He said he had little strength in the right arm. He said because he could not lift a two litre carton of milk to the kitchen bench, he now purchased milk in a one litre container.
The plaintiff was certain that his condition was deteriorating.

Medico-legal evidence

All of the medico-legal experts accepted that the plaintiff was injured in the course of his employment and as a result of the accident.
Dr Breit, orthopaedic surgeon, examined the plaintiff at the request of the Workers Compensation insurer in February 2017 and May 2019. He observed muscle wasting and poor scapula control with restricted range of movement in the right shoulder. In 2019 he reported significant restrictions in movement of the plaintiff's neck. Dr Breit assessed the plaintiff as capable of working four to five days a week, with lifting restrictions and with no work above chest height. He said the plaintiff was permanently impaired.
Dr New, orthopaedic and spinal surgeon, examined the plaintiff in June 2018 and June 2021. He recorded that there was significant pathology affecting the cervical and thoracic spines and the rotator cuff and bicipital area. He considered the plaintiff unfit to return to work in the field in which he was experienced and for which he was educated. He proposed the same restrictions as those specified by Dr Breit if the plaintiff were to consider other vocational opportunities.
Dr Davis, occupational physician, examined the plaintiff in July 2020. He diagnosed aggravation of pre-existing asymptomatic degenerative changes in the plaintiff's cervical region and traumatic injury to the right shoulder with bursitis, tendinosis and enthesopathy. He considered the plaintiff to be totally and permanently unfit for his pre-injury duties and to be significantly disadvantaged in the open labour market because of the disability in his right arm and the psychological sequelae of this disability.
Mr Watson, exercise physiologist, assessed the plaintiff in October 2016. He noted the plaintiff's reported symptoms and described him as exhibiting pain behaviours in that he was pain focused, catastrophising, fear avoidant, slow and guarded in movement, clutching at his right shoulder and displaying non-verbal expressions such as grimacing. He said the plaintiff also demonstrated self-limiting behaviour on some tasks. Notwithstanding these comments, Mr Watson, based on the plaintiff's presentation, assessed the plaintiff to be fit for sedentary, light levels of work with part time hours of 20 hours per week. He specified lifting and carrying limits and the need for work that minimised work above shoulder height with the right hand and allowed him to alternate the use of his left and right hands, to adjust or alternate positions and to take intermittent rest breaks as required.
Associate Professor Miniter, orthopaedic surgeon, examined the plaintiff in April 2020. He was out of step with his medico-legal colleagues as well as those who treated the plaintiff. He was unable to provide a diagnosis that would explain the plaintiff's presentation. He found only minor wasting of the shoulder girdle, suggesting that there was little identifiable objective pathology. In his opinion the plaintiff was fit to return to work in his pre-injury employment without restriction and there was no good reason for him not to do so.
The plaintiff expressed his unhappiness with Dr Miniter's report in the following terms: A. What I told Dr Miniter and what Dr Miniter has written are two completely different things. … A. …The only correct paragraph in that report is the first one - the first paragraph in that report is the only, in my opinion, correct information in the whole report. … A. He's not quoted one word that I said correctly. [24]
Dr Davis was also critical of Associate Professor Miniter's report. He pointed out that the history of the injury recorded by Associate Professor Miniter, namely an injury caused when the plaintiff was trying to calm the horse, was incorrect as was his assumption that the plaintiff was standing on the ground when he fell rather than being thrown from a height with a more severe impact.
Dr Davis took issue with Associate Professor Miniter's finding of minor muscle wasting because he failed to record 2 cm of wasting in the plaintiff's right arm and 1 cm in his forearm, measurements considered by Dr Davis to be significant. I noted that a number of the treating specialists also recorded muscle wasting in the affected areas.

Challenges

The plaintiff was questioned in cross examination on the extent to which he disclosed to his treating practitioners and to medico-legal experts that he suffered from low back pain prior to the accident. He was taken to a number of the medico-legal reports that deal with aspects of his prior medical history but made no mention of the low back condition.
The plaintiff's response was that he tried to answer honestly all questions asked of him at consultations and he had no intention of misleading the medical experts. He agreed that x-rays taken in 2007 disclosed early signs of osteoarthritis in his lumbar spine and that in October 2014, two months prior to the accident, he consulted his general practitioner with complaints of low back pain and that further x-rays were taken and Norgesic prescribed.
The plaintiff said this episode was typical of those that he suffered from time to time, generating the need for short term pain relief. He repeated his evidence that he had suffered low back pain since he was injured when a horse fell on him at the age of 19 and again stated that at no stage had this condition caused him to take sick leave. He said he took care of his back, wearing a magnetic belt when riding. Pain medication was used short term, unlike his current condition where he was continuously reliant on medication. The condition had not caused him difficulty with driving.
It was put to the plaintiff that he overstated his pain and discomfort and that notwithstanding his claims of disability he had considerable capacity to drive, lift weights and undertake home repairs.
These suggestions arose from surveillance of the plaintiff undertaken on 4 and 5 August 2020 and 28 and 29 August 2020.
On 4 August 2020 the plaintiff travelled from his home at Nowra to the Moruya Race Track to celebrate the birthday of one of the horse owners. He also watched a horse in which he had a share. He said this journey usually took between 90 and 100 minutes. His journey took two hours because he needed to rest three times. He said he took Endone on the night of 3 August 2020 because he knew he was going to the races next day and that his wife was not able to drive him. He took Endone again at 5.30 am on 4 August 2020.
The defendant was particularly concerned by the following aspects of the footage from surveillance on that day: 1. The plaintiff was observed walking his dog, holding the leash in his right hand. He transferred the leash to his left hand by placing his right hand behind his back. The plaintiff said his left hand had extended further than the right across the back of his body to take hold of the leash.
On my observation of the footage, the plaintiff was correct. 1. It was put to the plaintiff that he was at the race track for 3 hours without taking seat. He denied this, saying that Covid-19 rules mandated that he sit to eat food purchased at the race track and he had been seated near the food outlet. 2. It was suggested that he was observed gesticulating with his right hand. The plaintiff denied this. I noted that on one occasion he was seen to gesticulate by raising his right arm and moving it across his body at chest height. 3. He was seen to put on a sweater over his head. The plaintiff said he did this without raising his right arm above his shoulder. This was correct. The arm was extended to the front of his body, again at chest height. 4. The plaintiff denied that he swung his right arm freely when he walked.
On my observation, there were occasions upon which the right arm appeared to swing in unison with left. Equally, there were other occasions when the right arm remained inactive beside his body while the left arm was swinging. 1. The plaintiff agreed that he stayed overnight at Moruya. He said he slept poorly, leaving early at about 6 am on 5 August 2020 and that he purchased coffee before driving himself back to Nowra. I noted that he was observed to take a break at a rest stop en route.
On 28 August 2020 the plaintiff was observed leaving a hardware store carrying a can of paint, a tray and a paint roller. These items were transferred to his right hand before he used his left hand and arm to open the boot of his car to place them in there. The plaintiff agreed that the paint was in a four litre can. He was unsure if it was full. He said he used these items to stain an area of corridor in his house that was four metres long and less than a metre wide.
At 4.25 pm on the same day the plaintiff was observed carrying bread and a two litre carton of milk in his right hand.
On 29 August 2020 the plaintiff was observed placing bets at a machine in a hotel bar over an extended period of time. He said he was selecting horses for a 'quaddie'; a type of wager that encompassed four races and required two or three selections for each race. He said it was difficult and time consuming to complete. He was seen using both hands in the course of completing this task. The right arm movements involved raising his right arm by bending it at the elbow. This was a movement that the plaintiff demonstrated to Mr Watson that he was capable of performing.
On reviewing the surveillance footage, I noted that there were occasions when the plaintiff was seen to use his right arm for activities that were inconsistent with his claims of disability. This footage was brief and the actions undertaken were momentary.
There were also occasions where it was apparent that the right hand dominant plaintiff favoured his left arm. He used his left hand and arm to raise his telephone to his ear, to unlock a car door, to unlock and raise the boot of his car. On occasions the right arm was supported by the left behind his back or left immobile beside his body.
Taken into account with the medical evidence and the plaintiff's evidence that medication provided him with a greater range of movement in his right arm, the surveillance footage did not persuade me that the plaintiff overstated, rather than maximised, his claims of disability.

Residual Capacity

Only Associate Professor Miniter thought that the plaintiff could return to work in a full-time capacity as a trainer of thoroughbred race horses. The remaining medico-legal experts, including Mr Watson, were of the opinion that he was fit only for part-time light or sedentary work, with a substantial number of restrictions.
The plaintiff had not been referred for formal rehabilitation by his treating doctors or by the defendant, making it difficult to determine what, if any, avenues were available to him to return to income earning activity.
The plaintiff had given the matter some consideration. He considered retraining as a racing steward. This prospect became unattractive when he learned that it would involve a considerable amount of driving and a potential relocation.
The plaintiff rejected the proposition that he could return to the representative type of work that he had undertaken when employed by Equine Nutrition Systems, also because of the long distance driving involved. In addition, that position required him to lift from his vehicle heavy packages of products that he delivered to his customers.
He pointed out that he would be an unattractive prospect to an employer because he slept poorly and suffered from fluctuating levels of pain. He was also limited by the introduction in late 2020 of the prohibition on driving after taking Endone or Norgesic, two pain relieving medications that he relied on regularly.

Assessment

I accepted that the preponderance of the medical evidence supported the diagnosis of Dr Davis that as a result of this accident, in addition to the fractured rib, the plaintiff suffered: 1. aggravation of pre-existing asymptomatic degenerative changes in the plaintiff's cervical, and 2. traumatic injury to the right shoulder with bursitis, tendinosis and enthesopathy.
I accepted that those injuries disabled the plaintiff to the point where he was unfit to return to his work as a trainer of thoroughbred race horses.
Reference was made throughout the medical materials to the plaintiff's psychological presentation and he consulted a psychologist for counselling over a considerable period of time. However, I had no evidence that the plaintiff suffered from a diagnosable psychiatric injury as a consequence of the accident or that, if there was an injury of this nature, it affected his income earning capacity.
The defendant suggested that the back injury that troubled the plaintiff from time to time was likely to curtail his working life. The plaintiff pointed out that he took steps to care for his back. In the absence of medical evidence to support the defendant's proposition, I did not regard the back injury as a factor that warranted an increase in the level of vicissitudes to be applied to my assessment of the loss.
There were the following other factors: 1. The plaintiff was 49 years old at the date of the accident. He has not returned to employment since the accident. 2. He is now almost 56, leaving him with just over 10 years remaining in his working life. 3. His education did not proceed beyond Year 10 level. He had no tertiary education or trade or professional qualifications. 4. His working experience was limited to working with horses, mainly with race horses. 5. He was reliant on pain killing medication. 6. His capacity to take work that involved driving was affected by the use of some of those medications and by the levels of pain that driving induced. 7. The preponderance of the medical evidence imposed substantial restrictions as to hours of work and activities on any proposed return to work.
These factors all suggested that, even if he had residual capacity for employment, the plaintiff would present very poorly to a potential employer and that his prospects of returning to income earning activity were virtually non-existent.
I therefore did not regard residual capacity for employment as a factor that warranted an increase in the level of vicissitudes to be applied to my assessment of the loss.
The plaintiff's salary while employed by the defendant was $66,664, or $1020 net per week plus superannuation at 9%. He claimed that, in addition to the salary, his employment package included non-pecuniary allowances in the nature of rent-free accommodation, the provision of power at no cost to the house and the provision of a vehicle. The letter of appointment [25] confirmed that a vehicle was to be provided.
The provision of accommodation and power was confirmed by the defendant's letter [26] to the plaintiff dated 5 March 2015. The same letter also placed the defendant's assessment of the market rental of the accommodation at $450 per week, although the defendant offered to accept the lesser sum of $300 per week.
The defendant argued against valuing the allowance for rent-free accommodation at $450 per week. This was because the plaintiff owned two houses, one of which had been used as his home and was the house to which he returned after he vacated that provided by the defendant. While employed by the defendant, he received rental income from both of these houses. The defendant contended that the loss to the plaintiff was the rental from the house to which he returned after leaving the defendant's property.
I did not accept this argument. The plaintiff said that he was provided with accommodation for the purposes of his similar employment at Heritage Park and that he informed Mr Hamilton that he would need a house if he were to take the position at Mt Pleasant Stud Farm. Further, the loss to the plaintiff was the value of his services to the defendant or the amount that the defendant was willing to commit to have the plaintiff in its employment. In my view, this included his salary and the cost to the defendant of providing the non-pecuniary items. The income the plaintiff received from renting his properties was irrelevant to this valuation.
The plaintiff proposed that his past income loss be calculated at $1,500 per week for past income loss to take account of the non-pecuniary allowances and $1,700 for the future. Superannuation was claimed at the statutory level on the basis of these figures.
There was no evidence to establish the value to the plaintiff of the vehicle or power. I accepted, however, that the figures of $1,500 and $1,700 respectively were reasonable estimates of the value to the plaintiff of his salary, rent-free accommodation, power and vehicle.
The plaintiff claimed for past and future losses of annual leave loadings. It may well be that the appropriate award under which the plaintiff was employed allowed for annual leave loadings but, in the absence of evidence that this was so, I was unable to allow it
The plaintiff claimed that he was entitled to a percentage of prize money won by horses that he trained. Again, I was left without evidence to confirm that claimed entitlement or to establish the level of income that might be derived from it. I was unable to allow it.
Similarly, the claim for loss of opportunity, although particularised, was unsupported by evidence and I was unable to allow it.
I calculated the plaintiff's damages for loss of income earning capacity as follows: Past Income Loss at $1,500 x 347 weeks $520,500 Past Superannuation at $1,200 x 347 x 11% $45,804 Future Income Loss at $1,700 x 446.7 x .85 $645,482 Future Superannuation at $1,300 x 446.7 x .85 x 13.83% $68,265 Fox v Wood: $115,312 (to 9/9/21) + $162 (up to 16/9/21) $115,474 Total: $1,395,525

ORDERS

Verdict and judgment for the plaintiff in the sum of $1,395,525.
The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. This order is suspended for 14 days to allow parties, should they wish to do so, to apply to list the matter for submissions on the matter of costs.
The exhibits will be retained for 28 days.
My reasons are published.

Endnotes

Exhibit D
Exhibit H.LR82(1)
Exhibit 2
T. 24.7-25.18
T.34.14
T.34.15
T.28.49
T.182.16
T.197.28
T.197.40
T.199.49
Exhibit 2
Part Exhibit C
T.40.19
Part Exhibit D
Ex. G
Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47; [1980] HCA 12
Czatyrko v Edith Cowan University [2005] HCA 14 at [12]; (2005) 214 ALR 349; (2005) 79 ALJR 839
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 18; (1994) 179 CLR 520
Defendant's submissions at [33]
Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355
T.28.44
At [45]
T.108.44 & 109.15, 27
Exhibit D
Exhibit F 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: 17 September 2021

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Judgment (19 paragraphs)

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