McDermott v Woods - [2015] NSWDC 27 - NSWDC 2014 case summary — Zoe

NSWNSWDC

McDermott v Woods

[2015] NSWDC 27

District Court of NSW|2014-10-17

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2014-10-17

Source

Original judgment source is linked above.

Judgment (83 paragraphs)

[1]

Solicitors: Jordan Djundja Lawyers (plaintiff) Yeldham Price O'Brien Lusk (defendant) File Number(s): 2013/120516

[2]

INTRODUCTION

On 26 March 2010 the plaintiff was injured during a horse riding lesson with the defendant. The defendant is a riding instructor. The plaintiff was a relatively inexperienced rider. The plaintiff's horse, Star, was a gentle mare who was suitable for inexperienced riders. She did not, however, like tight equipment being fitted around her nose and mouth.
During the lesson on 26 March 2010 the plaintiff began to experience problems controlling Star's behaviour when transitioning from a trot to a canter. The plaintiff alleges that the defendant called her over and tightened Star's bridle to the tightest notch despite knowing that Star did not like tight equipment over her nose and mouth.
The plaintiff alleges that the defendant's act of tightening the bridle to the tightest notch caused Star to misbehave. The plaintiff lost control of Star and fell off the horse injuring her left ankle.
The plaintiff says that the defendant knew of Star's sensitivity to tight equipment as a result of a conversation between the defendant and Star's previous owner, Belinda Smithers, as well as conversations between the plaintiff and the defendant. The plaintiff also alleges that the defendant knew of Star's sensitivity as a result of a previous incident in which Star misbehaved by throwing up her head and pulling away from the plaintiff when being led on a lead halter that was fitted too tightly around her nose and mouth.

[3]

THE PLEADINGS

In the statement of claim the plaintiff alleges that the defendant was negligent as follows: (i) failing to take sufficient care for the safety of the plaintiff; (ii) tightening the bridle on the plaintiff's horse when she knew, or ought to have known, that it would cause the horse to react badly thereby endangering its rider; (iii) tightening the bridle on the horse when she was specifically told that it would be likely to cause the horse to react badly; (iv) failing to heed the specific warnings given by the plaintiff in respect of the behaviour of the horse; (v) failing to take reasonable steps to eliminate a clearly foreseeable risk of injury to the plaintiff; (vi) failing to take any or any adequate precautions for the safety of the plaintiff; (vii) placing the plaintiff in a position of peril that could have been avoided by the exercise of reasonable care.
The defendant denies that she was negligent. She says that the plaintiff was responsible for fitting the bridle to the horse on the day of the accident and denies adjusting the bridle during the lesson. She denies being advised prior to the day of the accident that the horse was sensitive to any piece of equipment being placed tightly around the jaw.
The defendant says that under the liability provisions of sections 5F, 5G, 5H and 5I of the Civil Liability Act, she did not owe the plaintiff a duty of care for the following reasons: (i) riding and being around horses is an inherently dangerous activity; (ii) the risks of horse riding include loss of control of the horse, falling or being thrown off and stepped on; (iii) horses are powerful, easily frightened and unpredictable animals; (iv) horses may buck, rear and/or fail to respond to commands without warning and without apparent cause; (v) there is a significant risk that serious injury or death may result from horse sport activities; (vi) the plaintiff was an experienced horse rider who had won a number of horse riding competitions; (vii) the plaintiff read and signed two waiver forms prior to the commencement of her horse riding lessons with the defendant which warned the plaintiff of the risks; (viii) the plaintiff is presumed to be aware of the risks; (ix) the defendant did not have a duty to warn of such obvious risks; (x) in the alternative, such risks were inherent in the circumstances and the defendant is therefore not liable.

[11]

A previous incident

About a month before the Milton Show, there was an incident that occurred during a lesson. The plaintiff and the defendant had a discussion about Star being led at the Milton Show. It was decided that the plaintiff should practice leading Star. The defendant put the halter on Star, did up the buckle at the side of Star's head, put the chain through the side and under the chin and then asked the plaintiff to walk forward with Star as if at a presentation.
As the plaintiff started to move off with Star the horse started pulling away from her. The plaintiff was concerned that the defendant should not have done the halter up, "because I knew it would cause her to play up". The plaintiff knew this because of what she had been told by Belinda Smithers.
The plaintiff was worried about the way the chain had been done up so she suggested to the defendant that the chain go through the ring and under the jaw without it being close to the horse's chin. Normally the chain is put through a loop and under the jaw, however, because Star reacted to the chain being placed under her jaw she had to wear it differently to other horses.
The plaintiff said to the defendant (Tp 99.16): "The way that you have the chain set up on the horse isn't the way that Belinda told me that I should have it in led. So that it should be the middle ring only and through no other ring on the halter."
The defendant ignored the plaintiff's suggestion and said that the horse would get used to it and that the plaintiff should keep making the horse walk in this way. At one point the defendant said to the plaintiff, "You know you've got to - you're the boss".
Star backed away from the plaintiff and lifted her head up and ripped the rein out of the plaintiff's hands. The plaintiff let go of the halter and Star ran down to a paddock. The defendant kept saying to the plaintiff, "Don't let go if she pulls back".
The plaintiff denied that in the past Star had escaped from the plaintiff because she heard other horses and was attracted to them.

[14]

The accident

On 26 March 2010, the plaintiff had a lesson with the defendant at the defendant's property at Garrad's Lane Milton ("the defendant's property").
The plaintiff fitted the saddle and the English bridle to Star in the stables. At the time of the accident, the bridle leather was still new and a bit stiff. The plaintiff fitted the bridle by allowing two to three fingers space on either side of the horse's head. The bridle was fitted on the loosest hole.
Another student, Amelia Dunn, was also present with her horse, Walter. Amelia Dunn was sixteen years old at the time. She and the plaintiff knew each other and were to have a joint lesson with the defendant. The lesson was to be a one hour lesson from 10.00 am to 11.00 am.
The plaintiff and Ms Dunn made their way to an area in one of the paddocks which was marked out as an equestrian arena. The arena was marked out with tape and was about 60 metres long and 20 metres wide. There were markers around the arena.
The arena was in a paddock some distance from the area in which the horses were saddled up. The plaintiff and Ms Dunn started walking their horses and warming them up.
In the first half of the lesson, the defendant asked the plaintiff to do figures of eight around the arena, small circles of ten to twenty metres, some trotting and some transitions from walking to trotting.
The plaintiff said that the defendant stood inside the marked out arena and not outside. She said that the defendant never stood outside the arena during a lesson.
In these various manoeuvres the plaintiff was required to exhibit control of the horse. The plaintiff used her reins to steer the horse but she always spoke to the horse who was voice commanded. The plaintiff did not use any knee or leg commands. She only used her legs to hold her balance.
In the first half hour of the lesson, the plaintiff did not notice anything unusual about Star's behaviour in response to the plaintiff's commands. The plaintiff described Star as "working very well".
About half way through the lesson, the defendant, who was still standing in the middle of the arena, asked the plaintiff to come over to her.
At Tp 105.20 the plaintiff gave the following evidence about what took place. "Q. She asked you to come over here? Yes. Q. Did she beckon or did she say, "Hey you", to come over here? A. She called out across the arena she yelled out to me across the arena. Q. What did she say, if anything? A. She asked me to come over to her so she could have a look at how tight‑‑ Q. But what did she say? A. She said she wanted to have a look at how tight the nosebands were. Q. Yes, but did you see her do that? A. Yes, she was looking at the horse's face you could see that and she was saying, "They're too loose". Q. What did you say? A. And I said, "No, they're fine." I said, "You know that I'm leaving them that way", excuse me, "So that they're ‑ she's getting used to it and I'd prefer it left that way." And she said to me, "No, it's too loose. She's just going to do what she wants", like, you know, if you haven't got any, well, control of the horse I suppose. So then she grabbed the ‑ I could see her fiddling with it and you could sort of see her arm go up. I couldn't see what holes they were actually in because I was still mounted on the horse but you could see her actually, her hand going up with the leather in her hands, like the, they yank sort of on the horse."
Although the plaintiff did not actually see the defendant tighten the nosebands she concluded that the defendant had tightened them because she could see the defendant moving her hands around the horse's face. She said, however, that, "I just couldn't see how tight they were because I was on the horse. So there's so many different holes."
In cross-examination the plaintiff agreed that the day of the accident was the first time that the defendant had ever adjusted any piece of equipment.
At this point the plaintiff said that she felt intimidated by the defendant. At Tp 108.44 the plaintiff gave the following evidence: "Q. Yesterday you gave evidence about you saying something, "I asked her not to touch them", you were getting Star used to the bridle and she wasn't used to anything. How were you feeling about the fact that you'd said, "Don't" and she‑‑ A. Intimidated. Q. Why was that? A. I just felt like she was a teacher and I was a student, so they're always right. So they normally overrule you if they think they know more than you. Q. Was there any other conversation before you went back out into the arena? A. I just told her that I was scared to do it because I was worried about the noseband being tight around the face but she just told me, you know, "She'll do what she wants if you don't make her do it." Q. So you went back out? A. I did, I did, yes."
The defendant then asked the plaintiff to go towards the outside of the arena and to go around the arena in a canter. In cross-examination the plaintiff agreed that one of the issues that the defendant was trying to address was that Star was cantering too fast. The defendant was trying to slow her down. This was part of the preparation for competition. The defendant felt that Star was cantering too fast for the English class.
The plaintiff rode to the perimeter of the arena. When Star took a couple of strides she started throwing her head up in the air and trying to lift her feet off the ground. The plaintiff could feel Star's front legs coming off the ground. At this point the plaintiff loosened the reins, gave Star "her head", meaning no pressure was placed on the reins, and managed to settle Star.
The plaintiff looked over toward the defendant and the defendant said, "Just make her do it again. She's just being a bitch. If she does it again I'll get Amelia to ride the horse." The plaintiff said, "I don't want to do it". The defendant replied, "Just do it one more time". The plaintiff said that she complied with the defendant's instruction, because she thought the defendant knew more than she did.
The plaintiff tried to recommence cantering. After a few strides Star stopped and tried to throw her head up and lift her feet. The plaintiff responded by loosening the reins and trying to tell Star, "it's okay". The plaintiff then felt Star panicking and moving backwards.
In cross-examination the plaintiff agreed that there was no reaction from Star to the tightening of the bridle until a couple of strides into the canter and that on both occasions Star reacted when the cantering commenced.
At this point, everything went black and the plaintiff's next recollection was of lying on the ground not knowing where she was and thinking, "I might have been dead".
The period from when the noseband was tightened by the defendant to when the accident happened was about 60 to 90 seconds.
The plaintiff asked the defendant what had happened. The defendant replied that Star had fallen on her. The plaintiff was crying and said to the defendant, "I told you not to tighten the noseband, why did you tighten the noseband. The defendant repeatedly said "shush" and tried to console the plaintiff.
There was no other conversation about the accident. An ambulance was called and the defendant accompanied the plaintiff in the ambulance.
On the question of whether the plaintiff was using her legs to give commands to Star, the plaintiff said that Star responded to voice commands. The plaintiff used her legs only to hang on and for balance.

[15]

The evidence of Belinda Smithers

Ms Smithers was the former owner of Star. She purchased Star in 2003 and thereafter showed Star in led classes. Ms Smithers sold Star to the plaintiff in 2009.
Between 2004 and 2009 Ms Smithers was involved in training Star. Initially Star was broken in by Ms Smithers' daughter. This involved Star getting used to a bridle and bit and being saddled. This was done in a style known as Western Pleasure which used a snaffle bit, a bridle that did not have any nosebands and a western saddle. Western Pleasure is an event at horse shows.
Western Pleasure differs from the style known as English style. A western saddle is broader and has a horn as the front. The western bridle does not have a noseband.
In the course of training Star Ms Smithers discovered that Star did not like the chain which is on the lead underneath her chin. Star would throw her head up and would not move forward willingly.
In response to this behaviour, Ms Smithers changed the way that she put on the halter so that the chain did not pull on Star's chin.
Other than disliking the way the chain was normally put on a horse, Star had no problems with her temperament. Star was a very gentle, easy going mare. Ms Smithers was not concerned about Star being spooked by things around her. Star was often used for beginners. Ms Smithers described Star as a beautiful horse to ride.
In 2009 Ms Smithers started to have hip problems and decided to sell Star.
Ms Smithers knew the plaintiff and in the course of their friendship Ms Smithers discovered that the plaintiff was interested in acquiring a horse.
Ms Smithers wanted to assess whether the plaintiff was a suitable buyer for Star and so the plaintiff went to Ms Smithers' place on about five occasions and rode Star in the yard. Star was using a western saddle, a snaffle bit and a western bridle.
After observing the plaintiff ride Star Ms Smithers thought that the plaintiff and Star would be a good match provided that the plaintiff had some tuition. She sold Star to the plaintiff.

[19]

The events of 26 March 2010

The plaintiff and Ms Dunn went to the defendant's property for a lesson together. They proceeded to saddle up their horses. Ms Dunn observed the plaintiff put an English saddle on Star and a Hanoverian bridle. The bridle was loose fitting. The plaintiff demonstrated to Ms Dunn that she could put her fingers under the nose bands.
Ms Dunn paid attention to the way in which the bridle was put on Star because Ms Dunn was aware that Star did not like anything tight around her chin or nose. Ms Dunn had previously overheard a conversation between Ms Smithers and the plaintiff about Star's sensitivity.
Ms Dunn was concerned about how Star might behave with a Hanoverian bridle. She mentioned this to the plaintiff. Ms Dunn observed that the bands were done up so that they were loose and there was no pressure.
In cross-examination Ms Dunn remained adamant that the bridle being used on Star that day was a Hanoverian bridle and not a cavesson and that an eggbutt snaffle was not used.
After Ms Dunn and the plaintiff had saddled up they rode their horses to the paddock containing the marked out dressage arena and began some warm up exercises. Walter was a bit frisky whereas Star was calm and so the defendant asked Ms Dunn to take Walter into the next paddock in order to tire him out.
The plaintiff and the defendant remained in the paddock containing the equestrian arena.
While Ms Dunn was exercising Walter she looked over to see what the plaintiff and the defendant were doing. In her evidence-in-chief she said that at no time was she more than about twenty metres from the plaintiff. In cross-examination she agreed that she could have been about 40 metres away rather than 20 metres.
Ms Dunn did not hear anything being said, however, at one point she looked over and saw the plaintiff stationary and the defendant standing at Star's head. Ms Dunn said that this was unusual in the course of a lesson.
In cross-examination Ms Dunn rejected the proposition that when she saw the plaintiff and the defendant the defendant was standing outside the perimeter of the equestrian area.
Ms Dunn kept on doing her exercises on Walter and shortly after she again looked over at the plaintiff and the defendant. Ms Dunn heard the defendant say, "If she does it again I'll get Amelia to jump on her."
Ms Dunn turned to do another lap of the paddock and heard a scream. She looked around and saw the plaintiff on the ground.
Ms Dunn rode over to the fence line. The defendant asked Ms Dunn to go and fetch the defendant's brother, Mr Brett Wilson. Ms Dunn dismounted and went to where Mr Wilson was working. She informed him that the plaintiff had fallen off her horse and that Mr Wilson was needed. Mr Wilson walked quickly over to where the accident had occurred.
Ms Dunn went back to the paddock where the plaintiff had fallen. The plaintiff was on the ground crying in pain. Her foot appeared to be bent.
Ms Dunn and Walter led Star back to the stables. At the stables Ms Dunn took the equipment off Walter and put him in a paddock. She then took the bridle and saddle off Star and replaced the bridle with a halter.
Ms Dunn said that the bridle she removed from Star was a Hanoverian bridle. The bottom noseband was very tight. In order to remove it Ms Dunn had to jam her finger underneath it, hold one hand on the horse's nose and yank with the other hand. The bridle was done up to the last hole. This was the tightest hole on the bridle. This was not the condition of the halter Ms Dunn observed when the plaintiff was saddling Star prior to the lesson.
As Ms Dunn attempted to take off the bridle Star threw her head in the air.
In cross-examination Ms Dunn agreed that the bridle was a new bridle. The leather was hard and had not yet worn to soft leather. Ms Dunn denied, however, that the difficulty she had in taking off the bridle was because it was a new bridle rather than a bridle that had been done up very tightly.
After putting the horses away Ms Dunn returned to the plaintiff and the defendant. Ms Dunn asked the defendant what had happened. The defendant replied, "The horse ran backwards and fell on Liz."
Ms Dunn stayed with the plaintiff until the ambulance arrived. The plaintiff did not say anything about how the accident had occurred.
At about the time the ambulance arrived the plaintiff's husband arrived together with Mr Trevor Smithers.
The defendant accompanied the plaintiff in the ambulance. Ms Dunn went to the hospital with Mr McDermott and Mr Smithers.
Ms Dunn did not recall the defendant's husband, Mr Colin Woods, being present on the day of the accident.
Later in the afternoon Ms Dunn returned to the defendant's property and spoke to the defendant. The defendant asked Ms Dunn to ride Star again "so the horse wouldn't get away with what she did".
Ms Dunn saddled Star using the bridle that the plaintiff had used in the lesson. It was a Hanoverian bridle with a Spanish snaffle.
Ms Dunn said that about a year ago the defendant came to her workplace and asked her to write a statement about what had happened. Ms Dunn wrote out a statement in about five minutes. She did not keep a copy and gave the statement to the defendant.

[23]

Waiver and release forms

The defendant said that as a general practice she had students sign two forms. If the students were under 18 the forms were signed by the parents. If they were over the age of 18 the student signed the two forms personally.
The defendant has been unable to find forms signed by or on behalf of the plaintiff's two children and has been unable to find the forms signed by the plaintiff herself.
The defendant normally put the waiver forms in a file and they were then put away in a box. The box was kept at the defendant's property. The defendant is unsure of where the forms might be. She tried to contact the occupants of the house in which she was living at the time but the occupants were not at home.
The defendant recalled that when she started giving riding lessons to the plaintiff's children in 2008 she gave the forms to the plaintiff. The forms were filled out and handed back to the defendant. The forms relating to the children were filled out and signed by the plaintiff prior to the first lesson starting.
The defendant produced samples of risk waiver forms and dangerous activity forms and said that every student that she had ever taught would have signed the forms.
In relation to the forms signed by the plaintiff the defendant said that the plaintiff signed the forms at the Milton Showground prior to the start of the first lesson. The defendant recalled giving the forms to the plaintiff who filled in her name, address and signature.
The two forms which the defendant identified as the forms which would have been signed by the plaintiff became exhibit 7.
In cross-examination the defendant was asked about her record keeping. She agreed that she did not keep a cashbook or a receipt book and said that most of the lessons were paid for in cash. The defendant could not recall whether she provided her accountant with any document evidencing what she received by way of cash.
The defendant did not make a search for the waiver forms immediately after receiving the statement of claim. She was prompted to make such a search by an enquiry from her insurer.
In relation to the actual waiver forms that would have been signed by the plaintiff, the defendant agreed that some of the waiver forms that were signed were on the letterhead of Aon. When asked about the apparent difference between exhibit 7 and the various waiver documents in MFI 5, the defendant said, "They change them all the time. I don't know. They're a pain when they do that. Cause they're even different now."
The defendant said that in 2009 and 2010 providing riding lessons was not a business but was simply a small hobby.

[28]

The accident: 26 March 2010

At the defendant's property there was an equestrian arena 60 metres long by 20 metres wide. It was taped off with electrical tape to mark out the arena and had cones and letters on it to identify different parts of the arena.
The plaintiff arrived at the defendant's property with Amelia Dunn. Both riders went into the paddock in which their horses were agisted.
The plaintiff saddled Star using an English bridle with a cavesson noseband, an eggbutt snaffle and an English saddle. The girths were checked and the plaintiff and Ms Dunn rode their horses to the arena. The defendant walked behind them.
When they reached the arena the plaintiff and Ms Dunn proceeded to warm up their horses. The defendant stood outside the marked area of the arena outside the orange tape.
During the warm up the defendant noticed that Walter was acting up because he had not worked for a while. The defendant asked Ms Dunn to leave the arena so that the defendant could work with the plaintiff and Star. The defendant asked Ms Dunn to do some laps of an adjacent paddock.
The defendant then instructed the plaintiff to pick up the canter in an area of the arena between the letters A and K. The plaintiff proceeded to do this.
In the course of the canter the defendant noticed that Star's canter was "rushy" or "too forward." The defendant asked the plaintiff to steady the horse down and bring it back to a trot. The horse in fact came to a halt.
The defendant then asked the plaintiff to come over to where she was standing. The plaintiff came over. The defendant asked her to release the reins a little and use her legs to ask the horse to go forward.
The plaintiff then walked around the perimeter of the arena and came to a stop near where the defendant was standing.
The defendant asked the plaintiff to think about sitting a little stiller in the saddle when she was doing the canter and to use her reins to keep the horse from rushing forwards. The defendant did not do anything in relation to the horse's equipment. She did not adjust the bridle.
The defendant asked the plaintiff to do one trot lap around the arena. The plaintiff did this and came back to where the defendant was standing. The defendant then asked the plaintiff to do the same exercise again picking up the canter between the letters A and K. This was the second time the defendant asked the plaintiff to pick up the canter between the letters A and K.
Between the letters marked A and K Star again became 'rushy and forward' and so the defendant instructed the plaintiff to use her reins and her seat. Star then stopped.
The defendant said, "Relax your reins." Star started stepping backwards. The defendant then yelled out, "Release your reins." The plaintiff still had contact with the horse and her legs were asking the horse to go forward. The defendant yelled out again, "Release the reins."
At this point the horse lost its footing, fell to the left and then fell on the plaintiff's foot. Star got up straight away. The defendant immediately went under the fence and went over to the plaintiff who was complaining about having a sore foot. The defendant said to her, "It's okay. Just relax. It's okay. Breathe."
The defendant checked whether the plaintiff had any other pains and then put her in the recovery position.
By this time Amelia Dunn had ridden over. The defendant asked her to come into the arena. Ms Dunn rode her horse into the arena.
At the same time the defendant's husband, Mr Colin Woods, appeared.
The defendant rang the ambulance and instructed Amelia Dunn to take both horses back to the stables. The defendant and Mr Woods remained with the plaintiff until the ambulance arrived. They moved the plaintiff over to a drum in order to give the plaintiff some shade.
Just before the ambulance arrived Ms Dunn came back from the stables together with the defendant's brother Mr Wilson.
After the ambulance arrived Mr McDermott and Mr Trevor Smithers arrived. The ambulance then took the plaintiff to hospital. The defendant went back to the stable, picked up the plaintiff's handbag and then went to the hospital with Amelia Dunn.
A few days later the defendant went to Nowra Private Hospital to pick up the plaintiff and take her home.
In cross-examination the defendant agreed that the bridle could not be adjusted by a rider sitting on the horse. The rider would have to dismount to adjust the bridle. The defendant agreed that at no stage during the lesson did the plaintiff dismount.

[30]

The evidence of Colin Woods

Mr Woods is the husband of the defendant.
On the day of the accident Mr Woods was at the defendant's property. At that stage the property was being looked after by the executors of the defendant's parents' estate.
Mr Woods was at the property that day to do some fencing repairs in the bottom paddock. The paddock is on the southern side of the dressage arena.
At some point during the morning Mr Woods heard the defendant yell out during a lesson, "Release the reins, release the reins." The defendant does not normally raise her voice and so this incident attracted Mr Woods' attention. In cross-examination Mr Woods said that he was in no doubt that the defendant said, "release the reins," three times. Mr Woods was about 70 or 80 metres away.
Mr Woods turned around and observed the horse going backwards. He saw the horse walking backwards for about 5 or 6 seconds. The horse slipped and fell out of sight. The horse then moved to the centre of the arena and began eating some grass.
Mr Woods immediately stopped what he was doing and went up to the arena. At the gate going into the arena paddock Mr Woods met Amelia Dunn.
Mr Woods went into the arena and saw the plaintiff sitting down holding her foot. The defendant was trying to comfort her. The defendant asked Amelia Dunn to take the horses back to the stables. Ms Dunn left to attend to the horses.
The defendant put the plaintiff in the recovery position. Amelia Dunn returned to the arena in the company of Mr Brett Wilson and the ambulance arrived. Mr Woods did not hear anyone call an ambulance.
Mr McDermott and Mr Smithers arrived after the ambulance. Mr McDermott asked what happened. Mr Woods replied that the plaintiff had an accident on the horse. Mr McDermott replied, "I hope your insurance is up to date."
Mr Woods drove to the hospital in his car.
In cross-examination Mr Woods said that the accident occurred somewhere between 10 and 20 minutes into the lesson.
Mr Woods agreed that he and the defendant had previously discussed aspects of evidence in the case. In particular, they had discussed what Mr Woods had seen and what the plaintiff had seen.
Mr Woods said that at the hospital he saw the plaintiff and the defendant. He could not recall seeing anyone else.
Mr Woods has first aid qualifications. He did not know how serious the injury was other than that the plaintiff had to go to hospital.
When asked what contribution he made to what was occurring, Mr Woods replied, "zero." He agreed that for the 15 to 20 minutes from when he arrived on the scene until the ambulance arrived he did "nothing."
Mr Woods did not hear any one ask for an ambulance to be called, nor did he hear an ambulance being called.
Mr Woods rejected the suggestion that he was not present at the property on the day of the accident.

[32]

The assumptions made by Ms Smyth

For the purposes of expressing an opinion Ms Smyth assumed facts very largely in accordance with the plaintiff's evidence.
Ms Smyth acknowledged that horse riding carries a risk of falls and injury and that horses are sensitive animals that have a highly developed "flight or fright" response. Ms Smyth conceded that it is beyond an instructor's control to prevent a fall if the student is not capable of staying on the horse or if something unpredictable spooks the horse during a lesson. She went on to say, however, that: "..this was not the situation in the present case. In this case when Ms Woods tightened up the "Hanoverian nose band, 'Star' acted in a predictable manner by tossing up her head, trying to rear and rushing backwards resulting in the horse falling over on her rider. I use the word predictable because Ms Woods knew the history of this particular horse was that she did not like and reacted badly to having anything tight around her nose/jaw area. Her actions placed Mrs McDermott into a position of danger and risk of injury because she (Ms Woods) knew that there was a likelihood that the horse would react badly with the noseband being tightened."
Ms Smyth considered that the accident was directly related to the defendant's action of tightening the nosebands. She observed that the noseband in question should be fitted with two fingers space between the noseband and the jaw. She noted that prior to the accident Star had been worked with the noseband on three separate occasions without incident.
Ms Smyth considered that it was foreseeable that the horse would react by reversing/rushing backwards or rearing, and falling over, if the noseband was too tight and that this was within the knowledge of an experienced horsewoman and instructor such as the defendant. She concluded that the defendant had over tightened the nosebands as opposed to tightening them slightly. Her conclusion was reached on the basis of the information provided by the plaintiff that another student, Amelia Dunn, had trouble undoing the buckles to take the bridle off the horse.
Ms Smyth stated that tightening the lower strap of a Hanoverian noseband to the extent that it was tightened by the defendant, would have pushed the bit up in the horse's mouth and caused pain. At paragraph 76 of her first report Ms Smyth stated: "A horse will try to evade this pain by not wanting to take any weight on the reins, tossing its head up and down, not wanting to go forward, rushing backwards and rearing up. These actions can often lead to the horse falling over. This is a common behaviour for a horse if it is incorrectly fitted with a 'bit' and 'noseband' or anything on its head or in its mouth that it does not like."
At paragraph 78 Ms Smyth stated that there were warning signs present after the noseband was tightened: "…'Star' refused to go forward into the canter and, as Ms McDermott described to me, the horse began tossing her head around and lifting her front legs. Mrs McDermott then stopped and returned to Mrs Woods and asked for the 'noseband' to be loosened, but was again overruled by Ms Woods. At this point Ms Woods had abundant evidence which was alerting her to the fact that 'Star' was reacting badly to the tightened 'noseband'."
Ms Smyth concluded that if the defendant felt the nosebands were too loose the defendant should have discussed this with the plaintiff and then tightened the noseband gradually one hole at a time. Knowing Star's history the defendant should have suggested that the plaintiff dismount when the noseband was tightened and lunged the horse until she was satisfied that the horse was comfortable with the adjustment.
According to Ms Smyth tightening a Hanoverian noseband will not slow a horse's canter. Ms Smyth observed that the purpose of the Hanoverian noseband is: "..to keep the horse's mouth closed or at least prevent a horse from evading the bit by allowing it to open its mouth too far. It can sometimes prevent the horse from putting its tongue over the bit and avoiding pressure in that manner. …... The 'hanoverian noseband' is also used to help stop a horse from pulling. It can be used instead of a stronger bit on a difficult horse that is hard in the mouth. The term 'hard in the mouth' means a horse that is hard to turn or stop and pulls on the rider."
The plaintiff informed Ms Smyth that Star did not have a history of avoiding the bit or putting her tongue over it and was neither hard in the mouth or pulled.
Ms Smyth concluded: "Given that 'Star' did not evade the bit or pull hard or put her tongue over the bit, there is no reason why she should have a 'hanoverian noseband' on at all or have the noseband tightened up. Particularly when the horse did not like and reacted badly to anything tight around her nose/jaw area."
Alternative measures to tightening the noseband in order to slow the horse's canter are: (i) instructing the plaintiff to canter the horse in small circles of 10 to 20 metres in diameter; (ii) when working in a dressage style arena, the horse should be brought into a small circle so as to help balance the horse and to teach it to bend and flex. This action also slows the canter. The use of a small circle is the best way to train the horse to canter slower and 'on the bit' and keep it interesting for the horse and rider by getting the rider to do transition changes from one pace to another and bend the horse around their seat and legs in small circles in the corners of the arena. (iii) lunging the horse in a small round yard with 'side reins' which are attached at the bit and back girth.

[33]

The oral evidence of Ms Smyth

Ms Smyth agreed that on the defendant's version of events the defendant did not appear to have departed from the appropriate practice of a riding instructor.
Ms Smyth was asked about the plaintiff's version of events. She said that if the equipment had been checked before the lesson and considered to be appropriately fitted, to then tighten the bridle to the last hole would be to tighten it too tight and put the rider at risk. If it was to be tightened the horse would have to be worked into it and become familiar with the tighter bridle. The process would have to be done gradually.
Although she initially said that she could not understand why an instructor would consider the equipment to be appropriately fitted prior to the lesson commencing and then halfway through the lesson decide that it was too loose, she did concede that tightening the noseband might be done to try and force the horse to take more pressure and to give the rider more control over the horse. It would help to bring the horse's head down.
Ms Smyth agreed that most horses will react when they go into a canter. At Tp 458.20 Ms Smyth gave the following evidence: "Q. That's at least in terms of physical actions of what occurred. Now what stands out about that is that the horse, Star, reacted each time-- A. Going into the canter. Q. --a few strides into the canter? A. That's right. Most horses will react going into the canter. It's that change of transition, whether we're talking about this case or anything else, horses going into the canter is when they generally react and they'll do that by they could put their ears back, swish their tail, kick, pig root, kick up. Any of those sorts of things usually happen going into the canter and I believe that the noseband being tight on the horse, that's - what's the words I'm looking for? I don't know, I guess her, her discomfort is heightened at that point and when she's put under pressure to do that transaction into the canter that's when she's reacted and I think that's a typical response by a horse to do it at that point."
Ms Smyth was then cross-examined as to the explanation for the horse's increased sensitivity at the point of going into a canter. She said that the horse's discomfort becomes heightened at the point of going into the canter. Although she could not provide a physiological explanation, she said that in her experience going into a canter is when most horses react.
In her report in reply to the report of Mr Jefferys, Ms Smyth re-stated her opinion that an over tightened Hanovarian noseband will cause a horse to run backwards particularly if the horse is a sensitive horse such as Star who has previously demonstrated a dislike of anything tight around the nose/jaw area.

[35]

The assumptions made by Mr Jefferys.

The opinions expressed by Mr Jefferys in his report were based on the defendant's version of what occurred on 26 March 2010 during the lesson together with certain assumptions about what equipment had been used on Star prior to 26 March 2010.
In an email to Mr Jefferys from the defendant's solicitor (annexure 2 to Mr Jeffrey's report) the following further information was provided. The solicitor wrote: "We have spoken to the defendant who advises that…… (d) prior to the incident, the claimant had competed in western pleasure events, where Star was fitted with a western bridle, a long shank bit and a western saddle. Star had been fitted with this equipment many times without issue."
On the facts provided to him Mr Jefferys did not accept that Star had a prior issue with sensitivity to anything fitted tightly around her nose or jaw area. He said that any such suggestion was "completely refuted" by the following points: (i) Star was regularly ridden with a long shank western bit without any issues whatsoever; (ii) Star was ridden with the same long shank western bit at the Milton Show three weeks prior to the accident; (iii) Star was shown at the Milton Show some 2 to 3 weeks after the previous incident in the led showmanship halter class fitted with the same halter chain and lead without incident.
After setting out the assumptions he made based on the defendant's version of the accident Mr Jeffreys stated: "In my opinion this was an unpredictable and unfortunate accident that could have been avoided, had the plaintiff been able to carry out the defendant's instructions. In my opinion this accident is not the result of any equipment. No correctly fitted and adjusted equipment will make a horse run backwards and fall over without pressure being applied to that equipment by the rider. If we were to assume the plaintiff's alleged facts, that Star had been fitted with a 'Spanish snaffle bit' and a tight Hanoverian noseband, I would say this: In my opinion, as a highly experienced expert, it would be extremely unlikely that a horse proven to be experienced and comfortable when ridden in a 'long shanked western bit', would react badly to the use of a 'Spanish snaffle' even if the noseband was tight."
In relation to the alleged tightening of the noseband by the defendant Mr Jeffreys said: "In regards to the alleged tightening of the noseband I would say this; the act of tightening a noseband does not necessarily result in the noseband being too tight. It may well have been too loose in the first place, and requires tightening to be effective. In my opinion most nosebands are too tight, causing unnecessary discomfort to the horse but this does not cause a horse to run backwards. Horses generally desensitise and switch off to the varying, but constant unnecessary pressures they are put under, in most cases inadvertently by the rider. The reality is, that horses are often ridden, with poor fitting and incorrectly adjusted equipment, but I have never seen or heard of a horse running backwards as a result of such equipment alone. It is the pressure that a rider puts on a horse, whether intentionally or inadvertently, that causes the horse to move backwards in an effort to remove such pressure. Again, based on the information I am presented with, it is my opinion the subject accident was an unpredictable and unfortunate accident that could have been avoided, had the plaintiff been able to carry out the defendant's instructions effectively."
On the assumption that Star was fitted with a cavesson bridle and egg-butt snaffle Mr Jefferys was asked various questions about the likelihood of a horse demonstrating the following behaviour without prompts, commands or instructions to do so: (i) not wanting to take any weight on the reins; (ii) tossing its head up and down; (iii) not wanting to move forward; (iv) rushing backwards; (v) rearing up; (vi) lifting its front legs.
Mr Jefferys said that it is most likely that a horse fitted with a cavesson bridle and egg-butt snaffle would not want to take any weight on the reigns without instructions or commands to do so. He said that it was unlikely that a horse fitted with a cavesson bridle and egg-butt snaffle would be tossing its head up and down, moving forwards, rushing backwards, rearing up or lifting its front legs without prompts, commands or instructions to do so.

[36]

The oral evidence of Mr Jefferys

In cross-examination Mr Jefferys agreed that the distance of 400 metres from the stables to the area of the arena was sufficient time for the horse to react to the equipment if it was causing discomfort. It is reasonable therefore to conclude that the equipment was not causing the horse discomfort.
Similarly, in the warm up period if the horse appeared to the instructor to be comfortable then there was nothing at that point causing discomfort to the horse.
Mr Jefferys said that there was nothing unusual about the behaviour of Star in the first transition from a trot to a canter. What occurred at this point in the lesson suggested inexperience on the part of the rider.
Mr Jefferys was asked about the plaintiff's version of events. In relation to the previous incident Mr Jefferys gave the following evidence at Tp 490.3: "Q. You were told by the solicitors it is likely that Star pulled away from the claimant because she wanted to be with the other horses. This was apparent due to her whinny exchanges and the fact she ran in the direction of those other horses. That's what you're told? A. Well once she's loose, that's obviously where she's going to go, yeah. Q. Now would you expect an educated horse of Star's temperament and training, such as you have described in your report on page 2 - a lovely mare, a pretty easy going quite, good combination, no unusual behaviour or conflict, okay? A. Mm-hmm. Q. That's how you've described her. Would you-- A. Well that's, that's the information I was given. Q. Yes. Would you expect a horse of that temperament and training to whinny this way? Would you not say that's unusual? A. Yes it probably is unusual. Q. Would the additional fact that the horses in the paddock were geldings and - just let me finish - and Star was a mare about six months pregnant? A. I'd say that's all irrelevant. Q. That's irrelevant. It's the training that is likely to affect whether Star pulls away from its leader, the person leading it, and goes whinnying off to other horses. It's the training that would say that didn't happen or that did happen, or that's likely or not likely, isn't it? A. A trained horse is not going to pull away and run off to its friends, in my opinion. Q. There would have to be another explanation, wouldn't there? A. Yes."
Mr Jefferys had a telephone interview with the defendant on 3 April 2014.The defendant confirmed to him that Star had previously been fitted with a western bridle, long shank bit and western saddle and that Star was comfortable being ridden with this equipment. He agreed that in his report he said that it is highly unlikely that a horse with a Spanish snaffle would react badly when ridden if it had previously been used to a long shank western bit.
Notwithstanding that he agreed that his assumption about the prior use of a long shank western bit informed his ultimate conclusion Mr Jefferys did not accept that if a long shank western bit was not used at all prior to the accident then this would affect the validity of his original opinion. He said that the use of the long shank western bit was a peripheral issue and maintained his view that equipment rarely causes an accident. It is generally caused by the rider.
Mr Jefferys was asked to make a number of assumptions consistent with the plaintiff's evidence. He agreed that leading up to the accident there was nothing about the equipment being used which could lead to the horse rearing up or behaving badly. He disagreed, however, that assuming the defendant tightened the noseband in the manner described by the plaintiff that that was the cause of the horse behaving badly within 90 seconds of the tightening.
The cross-examination of Mr Jefferys concluded with the following passage at Tp 502.49. "Q. Well, Mr Jefferys, assume there were somewhere between two and four lessons without incident, without the horse behaving badly where the transition from trot to canter was done on a number of occasions without incident, without the horse behaving badly? A. Mm-hmm. Q. On those occasions the horse was fitted with a snaffle bit, and English saddle and a Hanoverian bridle with the drop, as you would know, a drop noseband? A. Mm-hmm. Q. On those many transitions, on those lessons, if there was a problem with the equipment as it was then fitted, one would've expected some behaviour on the part of the horse to be demonstrated, wouldn't you? A. If the equipment was the problem, yes. Q. On 26 March the only difference that occurred was after half an hour, and in that first half an hour with the same equipment-- A. Yes. Q. --the horse is behaving normally? A. Yep. At the walk and trot. Q. No. The horse is behaving normally when it transitions into canter. Does not react badly, may have done it a little too quickly, but no danger to the rider, no reaction to its equipment, no reaction to its rider, adversely. The only change occurs when the noseband is tightened to its extreme. Just accept that scenario. A. But I, I - can I ask a question? What, if everything's going so good, what-- Q. Don't ask. A. Why was the equipment tampered with? Q. Don't ask questions, Mr Jefferys. You're here to answer them. Would you not concede that after those demonstrations of normal behaviour when the only difference was the tightening of the noseband to its most extreme, the act of tightening the noseband was the difference and the causative factor. Would you not concede that? A. Well I, I, I really couldn't give you an answer based on what you're giving me. You're not, you're not giving me enough facts there or to assume that that's the - there's plenty of variables here. The rider, the rider is the most, the largest variant in this equation. What the rider does is far more important than what the bridle or the, the bit does. Q. Well in this scenario assume the rider doesn't do anything different? A. Well then everything should be going great cause there's been no problem according to you at this point. Q. Yes. Except for the tightening of the noseband. Isn't that right? A. Well if there, then if they've, if they've tightened the noseband for no reason and that's caused a problem then, and the rider's done nothing different, which I doubt, then, then-- Q. Are you giving evidence on behalf of the defendant-- A. Well I-- Q. --or are you giving evidence as an expert-- A. As an expert. Q. --to the Court-- A. I'm telling you because of experience-- Q. --providing a partisan point of view? Which? A. It's, I'm telling you that as an experience instructor that's what's going to happen. The rider, the rider is, is the one that's going to be far more the cause than the bit. Q. I don't know why, Mr Jefferys, you keep coming back to the bit. The bit hasn't changed, has it? A. No. Q. The bit hasn't caused any problems in the past, has it? A. Not that we're aware of, no. Q. Why do you come back to the bit? A. Well the noseband's not relevant. Unless the horse is having a problem with the noseband, it's not relevant. Q. Well might it just be having a problem with the noseband when it is too tight? A. That would be, that's possible. Q. Thank you. You see other than Mr Ed, horses don't turn back and say "I'm having a bit of a problem with the noseband", do they? A. They certainly let you know. Q. They certainly let you know and the only way they know how to react, isn't that right? A. They resist. Q. And they resist. And they resist in a number of ways don't they? A. Yes they do. Q. They can buck, that's one? A. That's possible. Q. They can toss their head around to try and get rid of whatever is causing them discomfort? A. That's possible. Q. They can rear? A. It's possible. Q. They can walk backwards? A. That's possible. "

[37]

The plaintiff

It was submitted on behalf of the plaintiff that she was a credible and forthright witness who neither prevaricated nor evaded questions and made appropriate concessions where appropriate.
The defendant submitted that the evidence of the plaintiff was unreliable and should not be accepted. In particular, the defendant submitted that the plaintiff exaggerated and reconstructed the extent of any communication to the defendant about Star's sensitivity and has attempted to assert that the defendant learned of information from Ms Smithers when there is no evidence that the plaintiff was present during any conversation between the defendant and Ms Smithers.
It was submitted that there were a number of inconsistencies and implausibilities in the plaintiff's evidence as follows: (i) The plaintiff said in her evidence-in-chief that the defendant recommended the Hanoverian English style bridle. As I set out below, there is evidence from other witnesses who saw the bridle purchased by the plaintiff that it was a Hanoverian bridle. The plaintiff clearly thought that the defendant recommended a Hanoverian bridle. (ii) The plaintiff said that everything went black and that she regained consciousness whereas the ambulance report states that she remained conscious throughout. The plaintiff's evidence that she went black was her perception of what occurred in the few seconds that it took for her to be thrown from the horse and land on the ground. She remembered being on the ground. In my view the plaintiff was not giving, nor purporting to give, evidence of loss of consciousness. (iii) The plaintiff said in cross-examination that she was having two or three lessons a week at Woodstock Road whereas in chief she said that she was having lessons "a couple of time a week." In my view the difference in terminology is insignificant. (iv) The plaintiff said the defendant had never saddled or set up the horse or made any adjustments to the equipment before. It is unlikely that the defendant would have adjusted the nosebands given this history. The plaintiff said that the defendant saw her fit the new bridle on Star on the first day and that it was fine. If she had at least two lessons with the new bridle without interfering with the bridle it is unlikely the defendant would have seen fit to interfere on the day of the accident. In my view the fact that the defendant had not previously adjusted the nosebands does not make the plaintiff's account less likely. On the plaintiff's version the defendant adjusted the noseband because the defendant considered the nosebands were too loose for the plaintiff to exercise effective control over the horse on the day of the accident. (v) The plaintiff knew the difference between the Hanoverian and cavesson bridle before she purchased the Hanoverian bridle. I deal below with the credit of Ms Smithers and Ms Dunn. Regardless of whether the plaintiff knew the difference between a Hanoverian and a cavesson bridle both Ms Smithers and Ms Dunn, who were experienced horse riders, observed the bridle and were in no doubt that it was a Hanoverian and not a cavesson. (vi) The plaintiff said that she had three lessons between the Milton Show on 6 March 2010 and the accident on 26 March 2010 and would have had about nine lessons before the accident. The plaintiff said that the Hanoverian bridle was first used in the lesson on the Monday before the accident. There is nothing inconsistent or implausible about this evidence. (vii) The plaintiff thought that the defendant was negligent and she was very upset about what happened. It is odd therefore that the plaintiff asked the defendant to pick her up from hospital. It is more likely that the plaintiff had not formed any view about the defendant's negligence and that the defendant had not tightened the noseband. I do not accept that asking the defendant to pick her up from hospital indicates that the plaintiff did not believe that the defendant had tightened the noseband. It simply reflects the plaintiff's needs at that time and the fact that she was focused on her pain and injuries rather than on a fault analysis of the accident. (viii) The plaintiff said that the accident happened within 60 to 90 seconds of the tightening of the noseband. However when it was put to her that the further and better particulars state that the accident happened within 10 seconds she said that she could not recall exactly how long it was. The plaintiff was simply responding to propositions being put to her about whether the time could have been less than 60 to 90 seconds. Her evidence amounts to no more than a concession that it could have been less. The plaintiff was not particularly focused on the number of seconds that passed between the tightening of the noseband and the accident. (ix) It is clear that after the plaintiff first stopped and returned to the defendant the plaintiff made no reference to the tightness of the noseband. All she said was that she did not want to do it after giving the defendant "a look." If the plaintiff was so certain that the noseband should not have been tightened she would have protested again. The fact that she did not protest makes it unlikely that she would have made any complaint about the noseband. I do not accept that the failure to protest as suggested by the defendant makes it unlikely that the plaintiff made any complaint about the noseband. As the plaintiff said in her evidence she felt somewhat intimidated by the defendant, "I felt like she was a teacher and I was a student, so they're always right. So they normally overrule you if they think they know more than you."
There are a number of additional matters to which the defendant drew attention: (i) The plaintiff's evidence in chief was that what she was told by Ms Smithers about Star's sensitivity was explained to the defendant in "numerous conversations" (Tp 37.34). In cross-examination, however, it became apparent that the plaintiff only discussed this with the defendant in the led lesson on Monday 6 March 2010. (ii) The plaintiff conceded in cross-examination that there was only one led lesson with the defendant in the use of the led halter supplied by Belinda Smithers, however, she was consistently asked in her evidence-in-chief about "lessons". (iii) The plaintiff relied on what she assumed had been communicated by Ms Smithers to the defendant.
In my view these matters do affect the reliability of the plaintiff's account of her prior conversations with the defendant.
I have set out above at paragraphs 37 to 43 the plaintiff's evidence-in-chief about the previous incident. It is important, however, to understand the way in which this evidence came to be given.
In her evidence-in-chief on Monday 13 October 2014 at Tp 41-42 the plaintiff said that she had numerous conversations with the defendant in which she explained to the defendant what she had been told by Ms Smithers about Star's sensitivity to anything placed around her jaw.
In her evidence-in-chief on the following day, Tuesday 14 October 2014, the plaintiff was referred to her evidence at Tp 41-42 and was asked further questions about her evidence, introduced in a question by her senior counsel, "Yesterday you gave some evidence about an incident which happened about a month prior to the accident." (Tp 94.27).
In fact the plaintiff had not given evidence about 'an incident' but about lessons in general. The impression from hearing her evidence in chief at Tp 40-421 was that the incident and the conversations were not confined to just the one lesson.
The fact that there was only one led lesson and the limited nature of the information communicated by the plaintiff to the defendant is clear from the following passage of the plaintiff's cross-examination at Tp 132.20: "Q. At this stage, it's the case, isn't it, that you didn't know that the defendant had been told anything about Star's dislike of nosebands and matters tight around her face; that's correct, isn't it? A. She did know. Q. How did she know? A. When we've had conversations with - even with the halter, the day of the halter, she knew about it and she did tell me that Belinda had spoken to her about it as well. Q. So you're saying that you had a conversation with her at the time of the lead lesson; is that what you're saying? A. With Milea. Q. With the defendant? A. Just a short one with the chain not being where I wanted it or where Belinda had suggested it go in a led class. Q. You referred to conversations plural, were there other conversations that you had with the defendant where you advised her of this dislike of Star's? A. Well, that's at the beginning where I - on the first day-- Q. On the first day when? A. When I first ever put the English bridle on her was when I showed Milea how loose I had it around her face to get her used to it. Q. So this was on the Monday then? A. On the Monday. Q. So the occasions when you say that the defendant, Milea, learned about Star's dislike of things tight around her nose and face was in the lead lesson which occurred? A. She - as far as I was aware, Belinda had spoken to her previous to that. Q. If you would answer my question, please, Ms McDermott. You said that the conversations in which the defendant learned of Star's dislike of things tight around her face were firstly in the lead lesson A. No. Q. --that we've heard about; correct? A. When I was talking to her about the tightness of the chain and that around her face, she didn't make out she didn't know anything. She never told me that she didn't know. Q. That's the effect of what you thought was communicated to the defendant at that time; correct? A. Yes. Q. The other time as on the Monday? A. Yes. Q. That is, the first lesson with the English bridle before the accident? A. Yes. Q. Do you recall the conversation on the Monday? A. When I told her about how loose, I showed her how loose it was and I said, "Does this, this look okay?", and she agreed with it. Q. But that was the extent of the communication? A. Pretty much."
In my view this passage demonstrates that the plaintiff assumed that the defendant knew about Star's sensitivity, that there was only one led lesson and that in the conversation in which the plaintiff communicated information to the defendant the plaintiff said only that when fitting the bridle on Star she made it loose.
I do not accept that prior to the accident the plaintiff and the defendant had numerous conversations in which the plaintiff told the defendant about Star's sensitivity to equipment around her nose and jaw. The plaintiff assumed (correctly as I have found) that the defendant had been told about Star's sensitivity by Ms Smithers and thereafter the conversations were simply about how tight or loose the bridle should be.

[38]

Belinda Smithers

The defendant submitted that the evidence of Ms Smithers was unreliable for the following reasons: (i) The evidence about what information she gave to the defendant could not be accepted because Ms Smithers could not recall the exact terms of the conversation and said on a number of occasions, there "would have been" a conversation about being led; she "would have" told the defendant about the halter issue. (ii) She was first asked to recall the conversation about a week prior to giving evidence. (iii) She conceded she could not recall everything that occurred with clarity; (iv) She could not recall the date, year, month or day of the conversation; (v) She recalled the lesson but did not know what type of lesson or equipment was being used until it was suggested that it was a riding lesson with which she agreed; (vi) When the defendant's version of the conversation was put to her she said, "That, I'm not sure." (vii) She was not sure if there was any conversation about how the mare was to work with; (viii) She could not recall if she went to the defendant or vice versa, paused to answer what the weather was like and was "pretty sure" she met the defendant half way between the house and the arena.
I would make the following observations. First, Ms Smithers use of the phrase "I would have" was simply an expression used to convey what happened. This use of the expression is not uncommon for witnesses who do not appreciate the need to convey what was said in direct speech. It was clear that Ms Smithers remembered the conversation with the defendant. This was not a case in which she was saying, 'I do not now recall the conversation but in the circumstances I would have said.'
Secondly, what Ms Smithers remembered was attending the plaintiff's house, watching a lesson and having a conversation with the defendant about Star's sensitivities. Given that the incident took place some four years prior to her giving evidence it is not surprising that Ms Smithers could not recollect every detail about which she was asked.
Thirdly, Ms Smithers' answer that she was not sure about the defendant's version of the conversation is a reference to Ms Smithers asking how the plaintiff and Star were progressing and the defendant replying that they were moving along well. As her next answer at Tp 195.26 makes clear, however, while she was not sure about this aspect of the conversation, she was adamant that the conversation about the issues Star had with a halter took place.
Ms Smithers gave evidence in a clear and straightforward manner. I regard her as an honest and reliable witness.

[39]

Amelia Dunn

The defendant submitted that the evidence of Amelia Dunn should not be accepted. The defendant relied on the following matters to impugn Ms Dunn's evidence. (i) Inconsistencies between the evidence of Ms Dunn as to where Mr Wilson was working and how he came to be in the arena. As I set out below I do not regard Mr Wilson as being a particularly reliable witness and I do not regard any inconsistencies between the evidence of Ms Dunn and the evidence of Mr Wilson as reflecting adversely on Ms Dunn. (ii) Her inability to recall such things as the time the lesson started and her incorrect estimate of the distance from the stables to the arena (100 metres rather than 400 metres). In my view these matters are peripheral. They do not affect the reliability of Ms Dunn's observations on the matters of significance which she had reason to recall. (iii) Ms Dunn conceded that she may have forgotten things. This concession is simply a concession by an honest witness that she did not have a complete recollection of events on a day which occurred some four years ago. (iv) It was submitted that Ms Dunn was a close family friend and therefore had a reason to promote the plaintiff's case. This suggestion was not put to Ms Dunn in cross-examination. In any event, however, while Ms Dunn is a family friend of the plaintiff and might be sympathetic to the plaintiff, there was nothing in the content of her evidence or her demeanour to suggest that her friendship with the plaintiff affected her evidence.
Ms Dunn gave evidence in a very undemonstrative and straight forward manner. She was 16 at the time of the incident and a relatively experienced horse rider. The observations she made as to the type of equipment being used, of the way in which the equipment was put on Star prior to the lesson and the tightness of the bridle immediately after the accident were relatively simple and straightforward observations.
In my view Ms Dunn was a clear and convincing witness and there is no reason to doubt her observations.

[42]

The defendant

For the following reasons I do not regard the defendant as a reliable witness.
First, although maintaining that she invariably gave the waiver form to every one of her students, and had the forms signed before the commencement of the first lesson, it is clear that the defendant had no system of keeping or maintaining records and that her approach to the formalities of the business was shambolic.
Although she identified the forms in exhibit 7 as the actual forms which would have been signed by the plaintiff (and these forms were annexed to the defence) it is clear that the defendant is in fact unable to identify which of a number of different waiver forms she would have given to the plaintiff.
Secondly, when cross-examined about the lack of adequate records of income received from the business the defendant said that giving horse riding lessons was a hobby rather than a business.
In my view it was clearly a business and not a hobby. The defendant gave regular lessons for which she received payment, conducted holiday camps and advertised in a local paper. It was disingenuous to describe the undertaking as a hobby.
Thirdly, the evidence about the long shank western bit does not reflect well on the defendant. This was a piece of information that Mr Jefferys clearly relied on his report to cast considerable doubt on the assertion that Star was sensitive to equipment being placed around the nose and mouth.
Notwithstanding the defendant's denial that she was the source of the various assumptions made by Mr Jefferys it is clear in my view that she was the source.
As the defendant agreed in cross-examination there was no mention made of the long shank western bit in the letter of instructions from the defendant's solicitors to Mr Jeffrey on 10 March 2014, in the statement of claim, in the statement of particulars, in the letter of instructions to the plaintiff's expert, nor a table summarising the version of events of both the plaintiff and the defendant.
The matter was put beyond doubt by Mr Jefferys who quite readily agreed that in a telephone interview with the defendant on 3 April 2014 the defendant confirmed to him that Star had previously been fitted with a western bridle, long shank bit and western saddle and that Star was comfortable being ridden with this equipment.
Notwithstanding her knowledge that a very important assumption made by Mr Jefferys was wrong, the defendant was apparently content for his report to be used without correcting the error.
Fourthly, as I set out below I do not regard Mr Woods as a reliable witness whose evidence I can accept. On the question of whether Mr Woods was present at the property on the day of the accident the plaintiff and Mr McDermott are clear that Mr Woods was not there. Their evidence is supported by the evidence of Ms Dunn.
The plaintiff submitted that there is an explanation for the evidence of the defendant and Mr Woods about Mr Woods being present on that day, namely, that it was made up during the trial when it was perceived that the case was not going well for the defendant. The plaintiff points to the fact that the presence of Mr Woods was never put to the plaintiff during a lengthy cross-examination and she had to be recalled to have the matter dealt with.
It is not necessary for me to deal with this submission. As I have set out above I accept the evidence of Mr McDermott and Ms Dunn. It flows from this that I do not accept that Mr Woods was present at the property at the time of the accident. Such a finding affects the reliance that I can place upon the defendant's evidence.
Fifthly, there is very little independent corroboration of much of the defendant's evidence. Conversely, much of the plaintiff's evidence is corroborated by both Ms Smithers and Ms Dunn who I regard as honest and reliable witnesses.

[45]

FINDINGS OF FACT

I make the following findings in relation to the factual issues set out at paragraph 18 above. (i) Did the plaintiff sign a waiver and release form prior to having any lessons with the defendant? No. I do not accept the defendant's evidence. The defendant's evidence about the keeping of records generally for the 'hobby' suggests that record keeping and attention to paperwork was virtually non-existent. I am unable to accept that the defendant had an invariable practice of having students sign the waiver and release forms. I accept the plaintiff's evidence that she signed no such forms. (ii) Was the defendant told by the horse's previous owner, Ms Belinda Smithers, that the horse was sensitive to equipment being placed under her chin? I accept the evidence of Ms Smithers that she informed the defendant that Star had an issue with anything that was under her chin. The defendant asked about Star's reaction and Ms Smithers said that Star would throw her head about and would be unwilling to walk forward. (iii) Prior to 26 March 2010 was there an incident during a lesson with the defendant in which the horse exhibited a sensitivity to equipment being placed around her nose and mouth? I accept the plaintiff's evidence that there was an incident that occurred about one month prior to the Milton Show. The defendant herself accepted that there was an incident in which Star jerked the lead away from the plaintiff's hand. I do not accept that the incident occurred because Star heard the sound of other horses whinnying in another paddock and ran to join them. The defendant is the only witness to advance such an explanation for Star's behaviour. Even Mr Jeffrerys did not regard this as an explanation for what occurred. In my view the incident, given the previous conversation between the defendant and Ms Smithers, demonstrated to the defendant that Star was sensitive to equipment being placed around her nose and mouth. (iv) Prior to 26 March 2010 was there a conversation, or conversations, between the plaintiff and the defendant in which there was a discussion about Star's sensitivity to equipment placed around her nose and mouth? As I have set out above, I do not accept that there were numerous conversations between the plaintiff and the defendant. Although the plaintiff knew of the sensitivity and assumed that same knowledge on the part of the defendant, I am able only to be satisfied that in the led lesson the plaintiff demonstrated to the defendant that she fitted the bridle loosely on Star and asked the defendant, "does this look okay?" and that the defendant agreed with such a fitting. (v) Did the plaintiff ever use a long shank western bit on Star prior to 26 March 2010? No. I accept the plaintiff's evidence. There is no objective evidence to suggest that such a bit was ever used by the plaintiff. (vi) Did the defendant tighten the bridle during the lesson on 26 March 2010, and if so, was the tightening of the bridle the cause of the accident? I accept the plaintiff's account of what took place on 26 March 2010 including her evidence that a Hanoverian noseband was being used with a Spanish snaffle. I do so because the plaintiff's account is corroborated in significant respects by the evidence of Ms Dunn. Ms Dunn's observation that the bridle was loose before the lesson and very tight and difficult to remove after the lesson clearly supports the plaintiff's account. Ms Dunn also supports the plaintiff's account that a Hanoverian bridle was being used, that the defendant was standing inside the arena and that at one point the plaintiff was stationary and the defendant was standing at Star's head. I find that the tightening of the bridle was the cause of the accident. The chronology supports the conclusion that the tightening of the bridle was the cause of the accident. Prior to the incident occurring there were no behavioural problems with Star. In the 20 or so minutes before the accident Star warmed up, walked and trotted and did circles, cross diagonals and figure of eights. She obeyed all commands. Star was not tossing her head about nor did she give any indication that there was anything wrong with the equipment. It was only after the equipment had been tightened by the defendant that Star started to misbehave by tossing her head and attempting to walk backwards. As Ms Smyth said, this is common behaviour for a horse that is incorrectly fitted with a tight noseband that it does not like. Star was reacting to the tightened noseband. In the passage from the cross-examination of Mr Jefferys set out above at paragraph 257 even Mr Jefferys ultimately accepted that "it was possible" that the horse was having problems with the noseband and reacted by "letting you know", namely resisting by tossing her head, rearing and walking backwards. (vii) Was the defendant's husband, Mr Colin Woods, present at the defendant's property on the day of the accident? No. I do not accept the evidence of the defendant and Mr Woods.

[46]

Was the defendant negligent?

Sections 5B, 5C and 5D of the Civil Liability Act are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
It is necessary to determine whether the defendant was negligent by reference to the following questions Was the risk foreseeable (that is, it is a risk of which the defendant knew or ought to have known)?
It is necessary at the outset to identify the risk.
In my view the relevant risk was the risk of injury resulting from the bridle being tightened to the tightest hole on a horse with a known sensitivity to equipment being placed around her nose and mouth.
The risk was plainly foreseeable. The defendant herself agreed in cross-examination that the way in which equipment is put on a horse is important as far as safety is concerned and something to which a qualified instructor should pay attention. The defendant also agreed that if equipment is tightened to the extent that it causes the horse to feel discomfort it creates a foreseeable risk of injury because an ill-fitting bridle may involve the horse shaking its head vigorously, prancing, rearing or rushing forwards or backwards.
Ms Smyth said that it was foreseeable that the horse would react by reversing/rushing backwards or rearing, and falling over, if the noseband was too tight and the horse's sensitivity was known to an experienced horsewoman and instructor such as the defendant.

[48]

The defences

I note at the outset that in written submissions the defendant raised a defence under s 5L of the Civil Liability Act, namely, that the accident was the materialisation of a risk of a dangerous recreational activity.
The defendant did not plead s 5L in her defence. I do not therefore propose to permit the defendant to raise the defence. Cases are to be determined on the issues raised in the pleadings: Watson v Meyer [2013] NSWCA 243 at paragraph 81.
By her defence the defendant relied on sections 5F, 5G, 5H and 5I of the Civil Liability Act. These sections are as follows: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."

[52]

The plaintiff's evidence

The plaintiff was born in 1974. She was 35 years old at the date of the accident. She is now 40 years of age. Her life expectancy is 48 years.
The plaintiff has spent her whole life on the South Coast of New South Wales. She went to school in Ulladulla and left at the end of year 10 when she was 16 years old.
The plaintiff's first job after leaving school was as a waitress at a takeaway shop attached to a small restaurant.
Some months after leaving school the plaintiff met Mark McDermott. They eventually married and had three children. Mr McDermott is the skipper of a fishing trawler. The business also owns another fishing boat. The trawlers operate out of Ulladulla.
In 2004 the plaintiff's daughter Brittany was five, and when she started pre-school the plaintiff decided to return to the workforce. She had not worked since 1991.
In 2004 the plaintiff obtained a job working on the checkout at Coles. The job was a casual job although she worked most days. When necessary the plaintiff's mother-in-law looked after the children to enable the plaintiff to work.
In 2005 the plaintiff became ill and spent some time in hospital having her lymph glands removed. It took her a few weeks to recover. She had six weeks off work and then rang Coles to inform them that she was available for work. She did not receive a call offering her work. She did not return to the job at Coles.
The plaintiff then obtained a job at SuperCheap Auto. The job was part-time four days a week from 9.00 am to 3.00 pm. It involved customer service, stocktaking, stocking shelves, ordering for customers, taking phone calls and cleaning. The plaintiff liked the job.
Throughout this time the plaintiff was helping Mr McDermott in the fishing business. While she was working at SuperCheap Auto the plaintiff mainly did paperwork for her husband.
In 2005 after the plaintiff left SuperCheap Auto she started receiving an income from her husband's company Shelly H Holdings Pty Ltd. After she left SuperCheap Auto she did a lot more work in relation to both the fishing boats. Sometimes the boats would be away at sea for up to three months. In that time the plaintiff would do the paperwork and arrange for things such as nets, wire, fuel and cleaning supplies.
The plaintiff drove a utility with a diesel tanker on the back. She would sometimes drive the utility to Wollongong to pick up supplies.
The plaintiff did the shopping for the men on the boats. There could be up to six men on each boat. She had to buy food on the basis that they could be at sea for more than a week. She generally filled two supermarket trolleys.
There was a lot of heavy manual work involved in supplying the fishing boats. The plaintiff would deliver ice to the boats. About an hour before the boats docked the plaintiff could be asked to pick up about 30 boxes of ice. Each box weighed 15 to 20 kilos.
When the boats returned to Ulladulla the plaintiff would write down the weight of the catch on the different tags from the Sydney Fish Market and then count the boxes. Any boxes not sent to the Sydney Fish Market would be taken by the plaintiff to local restaurants and shops.
The plaintiff was also involved in cleaning the boats after they came into port. This involved cleaning the cabins, changing and washing the sheets, cleaning the kitchen, the fridges, the cupboards and the windows.
The plaintiff worked up to 35 hours a week in the business and drew a salary of $350 per week.
The plaintiff enjoyed working in the business because it was a family business and she felt that she and her husband were working for themselves.

[53]

The accident and its aftermath

Immediately after the fall the plaintiff said that everything went black. When she regained consciousness she was on the ground. She felt a searing pain in her left leg and twinges in her back. She was screaming and hyperventilating.
The plaintiff was taken by ambulance to Milton Hospital and then to Shoalhaven Hospital. She had an x-ray and a CT scan and was admitted to Nowra Private Hospital.
She spent a few days in the hospital and was then sent home. Although she was given pain relief while in hospital she obtained only minimal relief. The left leg was throbbing. Her foot was in a half cast. She was given morphine to help with the pain.
The plaintiff was told that she might lose her leg. She felt scared at the prospect of an amputation.
On 8 April 2010 the plaintiff was admitted to Nowra Private Hospital. The swelling in her leg had gone down and she underwent an operation. She was discharged a few days later. She was taken home by Amelia Dunn and a family friend.
The plaintiff was discharged in a wheelchair. She needed the wheelchair for about a month.
She was given Endone for the pain. After about two weeks she was given medication that was not as strong.
In the two weeks after the operation the plaintiff was looked after by her mother and Amelia Dunn and Amelia's mother.
Following those two weeks, for a period of about a month, the plaintiff was looked after by her mother, Mrs Jeanette Hamilton.
In the six weeks following the operation the plaintiff was unable to do the washing, cook the dinner or shop. She needed assistance with her medication, having a bath, dressing and going to the toilet.
The plaintiff gave a detailed description of the activities for which she needed assistance to Ms Detta O'Dwyer, an occupational therapist.
After a month in the wheelchair the plaintiff was able to walk on crutches and a boot. This lasted for about three to three and a half months from May to August 2010. The crutches caused pain under her arms and in her hands.
The plaintiff was not able to do any work in the fishing business. Even the administrative work was not possible because the painkillers made her drowsy and tired. She couldn't think properly. This lasted for a period of about five months after the accident from March 2010 to about October 2010.
During this five month period the plaintiff could not do the housework or look after the fishing business.
After August 2010 the plaintiff used only one crutch and then a walking stick. She used a walking stick for about three weeks until about mid-September 2010.
The plaintiff continued having problems in this period and Amelia Dunn helped out.
From September 2010 until the end of the year very little changed in the plaintiff's condition other than she was no longer on crutches.
The plaintiff attended physiotherapy for five months three times a week. She found the physiotherapy painful.
There was little change in the plaintiff's condition throughout 2011.
In the middle of the year the plaintiff filled out a questionnaire for Dr Rothe. She was having panic and anxiety attacks about riding Star again. She felt unable to breathe properly. The plaintiff was unhappy. She owned a horse that she loved but could not ride. She was unable to help out the family in the way she that she had previously done.
Dr Rothe prescribed Lexapro which the plaintiff is still taking. The plaintiff uses two packets a month. Each packet costs $24. The Lexapro helps a bit with the panic and anxiety.
Recently Dr Rothe has prescribed Lyrica for the plaintiff's sleeping problems. The medication helps with the shooting pain in her foot and the pins and needles at night but when she wakes up the pain is still there.
About a year after the accident the plaintiff rode Star. She was assisted by Amelia Dunn. The plaintiff rode for just a couple of minutes. The plaintiff did not ride again for a couple of months. She then went on a ride for about 20 minutes around her property with her daughter and Amelia Dunn. The plaintiff did not ride Star again until 2013. On this occasion she rode for closer to an hour. The plaintiff just walked Star. The plaintiff did not feel ready for trotting or cantering.
Throughout 2013 and 2014 the plaintiff did not ride Star because she felt scared. She felt hurt both physically and emotionally by the accident.
Dr Rothe has doubled the plaintiff's anti-depressants. This has helped the plaintiff's mood on a day to day basis.
The plaintiff has not worked on the boats since the accident. Her legs are too weak.
The plaintiff was given a notice of termination by Shelly H Holdings Pty Ltd in November 2013. While the plaintiff is still a director of the company she no longer receives an income. She feels embarrassed, hurt and humiliated by what has occurred.
The plaintiff has attempted to obtain a job. She has applied to Bunnings, Coles and Woolworths but heard nothing back.
The plaintiff also asked a family friend who runs a fish shop for a job but he said that the plaintiff was too much of a risk.
The plaintiff looked in newspapers and checked out the Department of Social Security but to no avail.
The plaintiff's problem is that in any job she must be able to stand up and sit down whenever she needs.
The plaintiff started taking medication for pain relief after the accident. She continues taking that medication.
Prior to the accident the plaintiff had sciatic nerve pain that ran down her buttock and down her leg. She occasionally still gets this pain when she has had a busy week which is about one week a month. The pain is brought on by standing around too long or trying to do certain things such as lifting a basket of washing without assistance.
The plaintiff has pain in her lower back when she sits for a long period of time. Her sciatic pain plays up if she puts weight on her leg for too long. The pain occurs after about an hour, or 15 minutes of standing. Her left leg and lower back tires.
The plaintiff wakes up every day in pain. She can only walk for about 15 minutes before experiencing pain. Walking on uneven grass is difficult. The plaintiff lives on a property of 100 acres. Walking to feed the various animals on the property can be a problem. Her foot starts to hurt, her limp gets worse and she feels as if she is going to fall over. The plaintiff can recall falling over on two occasions. Because of her concerns the plaintiff takes things slowly and exercises caution.
The plaintiff now always wears flat shoes. Prior to the accident she used to wear high heel shoes and boots. She used to wear high heel shoes when she went out socially. She no longer does this and feels upset and embarrassed about it. She feels left out when she goes out.
The plaintiff now rarely goes out. She feels people look at her and often ask her about what happened.
On the property at which the plaintiff was living prior to the accident there was an area of lawn. The plaintiff generally did the mowing. She does not mow the lawn at present. At the address at which she is now living there is about half an acre of lawn. The plaintiff does not feel able to push a lawnmower. Her son-in-law does the lawns. It takes him about three hours. The lawn needs mowing every week in summer.
Prior to the accident the plaintiff used to do some handyman work and would climb up ladders to fix things up on the roof. The plaintiff no longer climbs ladders.
The plaintiff is familiar with some types of computer software and would be able to work using such software if she was able to take extra breaks. She could sit at a computer desk for an hour at the most before requiring a break.
The plaintiff has not applied for such work because she knows she could not do the job without having breaks during the day.
But for the accident the plaintiff intended to work until retirement age of 67.
For five months after the accident the plaintiff did not drive and relied on friends and relatives to drive her around. For five months she was being driven to and from physiotherapy appointments three times a week.
After the first five months the plaintiff could still not do the shopping because her left foot hurt and she always needed help. There would be a big weekly shop that would take up to one and a half hours. The plaintiff learnt to do this with smaller shopping by leaning on the shopping trolley.
These shorter trips took 40 minutes 3 times a week. The plaintiff needed help for the first nine months after the accident.
By 2012 the plaintiff was still having problems with her left ankle. She was doing the paperwork for the fishing business but Mr McDermott and the deckhands were doing the heavy physical work. In 2012 the plaintiff's sleeping was up and down.
Dr Rothe told the plaintiff that she might require surgery to fuse the ankle. The plaintiff said that if the pain becomes unbearable in the future she will have the surgery.
Prior to the accident the plaintiff was happy, not on any medication, and had nothing wrong with her physically.

[54]

Cross-examination

The plaintiff agreed that in 2002 and 2005 she had episodes of depression. She was treated with medication for nine days.
Her sciatica started before the accident however does not cause her any problems. She still suffers from sciatica to some extent but does not get sciatic pain all that often.
The plaintiff was told that she had a condition of osteopenia. The plaintiff was advised that because of her smoking and a previous hysterectomy she was at risk of developing osteoporosis. The plaintiff recalled having a bone scan in 2013.
By October 2013 the plaintiff was told that the stress fracture had healed to the point where she could start weight bearing.
The plaintiff's right hip pain irritates her when she has to walk a lot or sit down too much. The plaintiff is always putting pressure on the right side more than the left.
The plaintiff was asked about the tasks done by her children. The plaintiff said that if she was able to get the children to do the mopping they would do it. If nobody was prepared to do the work then she could do it if she was having a good day. The same applies to household cleaning
The plaintiff uses the dryer to dry the clothes. Family members help out if asked.
There are nine horses and some cattle on the property. The cattle is bought and sold as part of the business of the family company.
The plaintiff gave evidence about the termination of her employment with the family business. I deal with the issue of termination below at paragraphs 540 to 553.
The plaintiff agreed that there was an incident in May or June 2013 when she felt a pop in her right hip while walking on the veranda. She suffered severe pain in her right hip and thigh.
The plaintiff said that her ability to do administration work is limited by the time at which she can sit at a computer and the fact that she is a bit fuzzy while on medication. She agreed, however, that she worked for Shelly H Holdings Pty Ltd for some years after the accident and that the medication does assist her function.

[58]

The evidence of Mrs Jeanette Hamilton

Mrs Hamilton is the mother of the plaintiff. She lives in Sydney but over the years has regularly visited her daughter in Ulladulla.
On the date of the accident Mrs Hamilton was visiting the plaintiff. She was told of the accident and that afternoon went to see the plaintiff in Milton Hospital. She then accompanied the plaintiff in the ambulance to Shoalhaven Hospital.
While the plaintiff was in hospital Mrs Hamilton went back to Sydney and then returned to Ulladulla so that she was able to assist when the plaintiff was discharged from hospital. Mrs Hamilton stayed for six weeks, returned to Sydney for a short time and then returned to Ulladulla for not quite two months.
In the first period of six weeks Mrs Hamilton assisted the plaintiff with her personal grooming and personal care. She helped her to shower and assisted her on the toilet and to dress. The personal care took 2 to 3 hours a day.
Mrs Hamilton did all the general cleaning and washing tasks, the ironing and the cooking. She did the shopping and got the children off to school.
Mrs Hamilton was working in the house for between 6 and 8 hours a day sometimes more.
In the second period the plaintiff was able to do some things for herself but Mrs Robertson had to help with the main things.
Mrs Hamilton assisted the plaintiff to get in and out of the shower and with the toilet. Personal care took about an hour a day.
The household tasks continued at about the same rate as before.
Mrs Hamilton said that the plaintiff was a lot more nervous since the accident and stresses a lot more. Her physical ability has changed and she limps very badly. This is exacerbated if she has been on her feet for a long period.
Mrs Hamilton continues to visit the plaintiff regularly. She stays for up to a month at a time. She provides help such as putting clothes on the line and the washing and ironing. When she visits she assists the plaintiff for 2 to 3 hours per day sometimes more.
Mrs Hamilton's health is good however the trips to Ulladulla are tiring.
There is limited other assistance available to the plaintiff. Mrs Hamilton said that the plaintiff's mother-in-law lives in one of the houses on the property. She has a lot of health problems. Sometimes the plaintiff's children assist but they are teenagers and they do not really help.

[59]

Ambulance report dated 26.3.10, Milton Ulladulla Hospital clinical notes and Shoalhaven Hospital clinical notes and Ulladulla Medical Centre clinical notes various other treating doctor reports

The Ulladulla Medical Clinic notes record the plaintiff's previous medical history to include endometriosis in 2004, injuries after a motor vehicle accident (neck discomfort and abdominal bruising) in 2006, contact eczema in 2007, repair left Achilles tendon rupture and fractured calcaneum in 2010, depression in 2011 and gastritis and ulcer in 2012. Her medications are recorded as Panadeine Forte and Panadol Osteo.
The Ambulance records note that the ambulance arrived at the defendant's property at 10.50am and that the plaintiff remained conscious throughout the incident. The plaintiff was noted to be lying on the ground and conscious but unable to move. She was given pain relief, including intravenous morphine.
The plaintiff was taken by ambulance to the Emergency Department at Milton Ulladulla Hospital with a suspected dislocated left calcaneal fracture. She underwent an x-ray and was seen by Dr Tait who noted a comminuted calcaneal fracture and opening of the ankle mortice or joint on the left side.
Dr Tait discussed with Dr Jarman the transfer of the plaintiff to Shoalhaven Hospital for review and a CT scan. A backslab was applied and analgesia was administered.
The plaintiff was transferred from Milton Ulladulla Hospital to Shoalhaven District Memorial Hospital where she was reviewed in the Emergency Department by Dr Jarman, orthopaedic surgeon. She was subsequently diagnosed as having a fractured calcaneus. An x-ray taken at the time demonstrated a comminuted left calcaneal fracture. A CT scan of the left ankle joint showed a slight widening of the ankle mortice laterally. There was also a diagnosis of an Achilles tendon rupture or detachment from the calcaneum. However, it was later determined that the plaintiff suffered a comminuted fracture of the calcaneal with the Achilles tendon attached to a fragment.
The plaintiff's foot was too swollen for her to undergo immediate surgery. Her foot was immobilised in a cast and she was advised to elevate her leg for two weeks to enable the swelling to go down. She was discharged from hospital on 29 March 2010.
On 9 April 2010 the plaintiff underwent surgery in the form of an open reduction and internal fixation with cancellous bone screws into the heel fracture at Nowra Private Hospital. The surgery was performed by Dr Jarman. A back slab was applied and she was advised to elevate the leg for two weeks and not to weight bear for 6 weeks to allow the swelling to subside. She was advised to take analgesia for pain relief.
The plaintiff attended her general practitioner, Dr Rothe, on 7 May 2010. He noted that BMD testing failed to show any osteoporosis with normal bone mineral densities for the lumbar spine and femoral neck. On examination her wound was noted to be healing well and she did not need Panadeine forte for pain relief.
On x-ray taken on 25 May 2010 the fracture was difficult to evaluate. A further procedure was performed and it was found that the fracture fragment had migrated and reduced. There was displacement of the fragment attached to the Achilles tendon in a superior and medial direction.
After this procedure the plaintiff was non-weight bearing with a CAM boot for a period of approximately eight weeks.
X-rays showed the fracture was progressing toward union. Dr Jarman stated in his report dated 27 May 2010 that her triceps mechanism was found to have shortened and she required extensive physiotherapy. It was recommended that she walk with the assistance of a walking boot while her heel cord remained shortened. Dr Jarman also discussed the significance of the plaintiff having osteopenia and the desirability of further investigations.
Dr Rothe saw the plaintiff on 31 May 2010. She was noted to be experiencing some localised discomfort.
The plaintiff saw Dr Rothe on 6 June 2010 for completion of her disabled parking permit. She was complaining of some left sided pectoral discomfort which was thought to be from using her crutches. On 27 June 2010 she was noted to have some residual soreness in her foot when moving her toe and tenderness in the middle of her foot with chronic swelling. She was using Naprosyn for pain relief.
A report from Janine Austen, physiotherapist, dated 26 July 2010 records that the plaintiff attended for treatment after surgery on her calcaneal fracture including exercises to increase her ankle mobility, hydrotherapy, exercise bike, gait re-education and soft tissue techniques and joint mobilisations. The plaintiff reported difficulties with too much weight bearing and said that she was mainly using one crutch. She was noted to have experienced a sudden onset of lateral dorsal foot pain.
The plaintiff attended physiotherapy for a period of approximately 6 months.
Dr Jarman examined the plaintiff on 28 July 2010 after she presented with a ten-day history of left foot pain. He observed that x-rays taken on 28 July 2010 did not show any complications. The x-ray reported mild medial impaction and medial tilt of the proximal calcaneus and marked disuse porosis (translucency).
On 22 November 2010 the plaintiff attended Dr Rothe and reported pain and stiffness in her left ankle which was worse at night after activity. She also reported discomfort in her left knee which was worse when inactive and she exhibited some tenderness in her left knee on examination. She was advised to continue taking analgesia.
In his report dated 4 February 2012, Dr Jarman noted that he had not seen the plaintiff since 28 July 2010. He said that while she had a good prognosis, he considered that she would have the potential for ongoing problems such as bony deformity, decrease in power, and prominence of hardware. She would have residual scarring from the operation. He was unable to comment on her employment prospects. He noted that no further surgery was planned when he last reviewed her in July 2010.
Dr Rothe saw the plaintiff on 17 June 2011. She complained of shooting pains along the back of her leg, tenderness on the sole of her foot and around the Achilles tendon. On examination Dr Rothe noted that the plaintiff had some limitation in her left ankle movement which was a consistent with her injury and the effects of surgery. She was prescribed Mobic Endep and Panadol osteo for pain relief. She also described panic attacks and flashback when she attempted to go riding.
Dr Rothe prepared a Mental Health Care Plan and DASS (Depression Anxiety and Stress Scale) score. Dr Rothe said that the results of her DASS score were consistent with extremely high scores for stress, depression and anxiety which Dr Rothe considered were consistent with a PTSD. She was commenced on anti-depressants (Lexapro). Her depression was partly attributable to the accident and partly to other family and relationship stresses.
Dr Rothe said the plaintiff would have been unfit for work from the date of the accident until November 2010. As at May 2012, Dr Rothe considered that the plaintiff was fully functional. He did not consider further surgery was required. The plaintiff had an increased risk of developing osteoarthritis in her ankle as a result of the fracture. Dr Rothe noted that when he saw the plaintiff in February 2012 she did not complain of ankle pain or depression.
In June 2013 Dr Rothe recorded that the plaintiff presented with recurrent severe right hip and thigh pain which was worse on walking and weight-bearing. She was noted to have felt a pop while walking on her veranda. X-rays of her hip and back were apparently normal. A bone scan was arranged for investigation of trochanteric bursitis.

[65]

Post-accident records

Clinical notes from Ulladulla Medical Centre dated 18 January 2012 recorded: "still some soreness and swelling left ankle region able to do most things some sleep disturbance depends on footwear and activity…"
A bone scan on 28 June 2013 recorded the possibility of a stress fracture and active enthesitis. There was no evidence of hip joint arthritis or trochanteric bursitis. A scan dated 28 June 2013 identified a small focal active abnormality in right femoral lesser trochanter. A possible stress fracture was also identified. There was no evidence of significant hip joint arthritis or trochanteric bursitis. An X-ray was recommended.
A MRI of the lumbar spine and a MRI right hip dated 9 August 2013 recorded: "Lumbar spine: no evidence of discogenic abnormality apart from minimal facet arthropathy at L5/S1 which was unlikely to be of any significance. Right hip: Stress fracture at the lesser trochanter extending into the femoral neck on the right side with bony and surrounding oedema. A clear trabecular stress fracture without cortical breakthrough is identified. No other significant changes."
A bone density assessment of the lumbar spine and femoral neck performed on 9 October 2013 confirmed that osteopenia was present and in conjunction with age, gender and previous fractures the plaintiff has a moderate (10-20%) risk of further fractures in the next 10 years.
An MRI of the right hip performed on 14 October 2013 was a progress study from a prior MRI confirming stress fracture. The results confirmed an almost completely healed stress fracture with no joint effusion with a mild amount of associated soft tissue oedema.
On an MRI of the right hip on 15 October 2013 it was noted that there was a significant improvement in the appearance of the stress fracture which was almost completely healed.
Further clinical notes from Milton Ulladulla Hospital Emergency Department dated 21.12.13 record a presentation to the Emergency Department with chest pain. The discharge referral records 7 days of scapular pain which worsened the previous day with radiation and tingling down the left upper limb. Investigations including ECG and troponin levels were normal. A muscular injury was considered to be a likely cause. A diagnosis of a rotator cuff tear was made.
In a letter from Dr Harmelin to Dr Jarman dated 18 February 2014, Dr Harmelin noted the plaintiff's unusual right stress fracture. He noted the obvious risk factors were smoking and oestrogen deficiency. The plaintiff was urged to try and stop smoking and was referred for a screen to determine the underlying cause of her osteoporosis. She was to be reviewed in a month.

[66]

Report by Dr Schutz, consultant surgeon, dated 13.11.13

Dr Schutz noted that the ankle fracture had healed but that the plaintiff continued to experience symptoms in the region and a decreased range of movements. Dr Schutz did not observe any swelling on examination, however, he did find a slight decrease in the circulation of the toes of the left foot with some slightly slowed capillary circulation and increased sweatiness in comparison with the right foot.
Dr Schutz disputed the plaintiff's suggestion that her right hip problems were caused by an altered gait given that the problems occurred 3 years after the incident.
Dr Schutz considered that the ankle fracture had healed and that the restrictions in the range of movement were permanent. Her circulatory problems were minor and appeared to be recovering satisfactorily. He considered that the plaintiff's right hip and back symptoms were unrelated to the accident.
Dr Schutz said that the plaintiff would have been unable to resume her pre-accident work for 5 months after the accident but that at the time of his report she had resumed her previous family business related work activities apart from cleaning the boats. He noted that the plaintiff had returned to work in administrative activities. He went on to say that: "Unless she had significant pain and swelling in the region of the ankle and foot, by about 1 year post-accident she would most likely have been able to resume cleaning activities on the boat has she chosen to do so.
Due to the reported subsequently developing right hip or upper femur problem In about May 2013, she would have been restricted to do no more than administrative tasks in the business but not for reasons of any aspect related to the 2010 accident.
Having effectively recovered from the right hip region symptoms, and capabilities are considered likely to have returned to those prior to May 2013."
In response to a question as to whether the plaintiff's pre-existing sciatica (assumed to be in her left leg) had been aggravated, Dr Schutz said that she had symptoms extending to the buttock and thigh which was likely to be local radiating symptoms from her lower back. He said x-rays and CT scans were normal and did not show a spinal cause for sciatica. He concluded that it was likely she had minor intermittent lower back symptoms with local radiation into the thighs and buttocks consistent with minor age degeneration. There was no evidence of low back injury. He said that her tendency to experience low back symptoms is much the same as her pre-existing condition prior to the incident.
He did not accept, given her present capabilities, that there was a need for domestic assistance as a result of the incident in the future. He observed that her children help her at times, she can do the cooking, the housework, clean the bathroom and the shopping. He accepted that there had been a need for 5 months assistance after the accident.
He also said that the plaintiff would have needed assistance when she had a right hip condition from May 2013 but those symptoms had resolved.

[69]

FINDINGS

In making findings of fact I prefer the opinion of Dr Bodel to the opinion of Dr Schutz to the extent that they differ. In my view the opinion of Dr Schutz understates the extent of the plaintiff's disability. The proposition that the plaintiff would have been able to resume her pre-accident activities (including the heavy physical work of supplying and loading the fishing trawlers and driving a utility with a diesel tank on the back) one year after the accident does not accord with the evidence as to the plaintiff's condition twelve months after the accident.
In making findings of fact it is necessary to note at the outset that the plaintiff's account of her disabilities and their relationship to the accident must ultimately be supported by the medical evidence.
I make the following findings. (i) The plaintiff suffered a fracture of the calcaneous in the left heel and a soft tissue injury to the right hip as a result of the accident on 26 March 2010. (ii) She has suffered from ongoing pain and stiffness in the ankle since the accident. (iii) Her prognosis remains guarded. There is a potential for ongoing problems in terms of bone deformity, decrease in power and prominence of hardware. (iv) The plaintiff has been left with a significant impairment as a result of the accident. (v) It is likely that the plaintiff will require a fusion in the future. (vi) Any such fusion should allow the plaintiff to continue her work until retirement but she will need to reduce her hours and type of work to a semi-sedentary type of activity. (vii) The injury to the plaintiff has contributed to the plaintiff's depression and anxiety. It is not the only cause of the depression and anxiety. The plaintiff's other family and relationship stresses have contributed significantly to the onset of the agitated depression. (viii) The fracture of the left femoral neck in 2013 is unrelated to the fracture of the calcaneous of the left heel in the accident. (ix) Following the fracture of the femoral neck the plaintiff was restricted in her movement for the period from approximately May to October 2013. (x) The plaintiff's right hip and back symptoms are unrelated to the accident. Dr Bodel does not suggest the right hip and back symptoms are related. Dr Schutz expressly states that they are unrelated. (xi) In relation to the right hip the plaintiff agreed that there was an incident in May or June 2013 when she felt a pop in her right hip while walking on the veranda. She suffered severe pain in her right hip and thigh. (xii) The plaintiff's right hip pain irritates her when she has to walk a lot or sit down too much. The plaintiff is always putting pressure on the right side more than the left. (xiii) In relation to her sciatica, prior to the accident the plaintiff had sciatic nerve pain that ran down her buttock and down her leg. She occasionally still gets this pain when she has had a busy week which is about one week a month. The pain is brought on by standing around too long or trying to do certain things such as lifting a basket of washing without assistance. The plaintiff has pain in her lower back when she sits for a long period of time. Her sciatic pain plays up if she puts weight on her leg for too long. The pain occurs after about an hour, or 15 minutes of standing. Her left leg and lower back tires.

[75]

The termination of the plaintiff's employment

It is necessary at the outset to deal with the circumstances of the plaintiff's termination of her employment with Shelly H Holdings Pty Ltd. The defendant submitted that the termination was not a genuine termination but was designed to improve the plaintiff's damages claim.
The plaintiff denied that her termination from the family company was for the purposes of this case. She said that the money recorded in the company records showing money received in December 2013 after her termination was for work she did before her termination. She had paid things out of her own money.
The plaintiff said that after her termination in November 2013 her daughter did some of the administrative work. The plaintiff said that she did not write the email to the accountant dated 17 December 2013. She asked her daughter to write the email on the plaintiff's behalf to the ATO.
Mr McDermott gave evidence that the plaintiff was no longer able to do the physical work involved in looking after the fishing boats. While she did a little paperwork she used to make mistakes. Mr McDermott regarded this as a problem because the consequences of making mistakes in the paperwork are that the fisheries authorities can shut the business down. This in fact happened on a couple of occasions because of mistakes made by the plaintiff.
The plaintiff made a similar mistake in relation to taxation paperwork which caused "a bit of drama."
Mr McDermott was very irritated by this situation and eventually he made the decision to sack the plaintiff. He said that this was not an easy decision but he had no choice.
Mr McDermott was asked about a ledger entry indicating that in December 2013 and in 2014, after the supposed sacking of the plaintiff, the plaintiff was still paid wages.
Mr McDermott said that this was money owed to the plaintiff because the plaintiff used to pay the staff out of her own pocket. The plaintiff was complaining about it so Mr McDermott said, "take an extra couple of weeks extra payment." It was for this reason the company kept on paying the plaintiff.
In cross-examination Mr McDermott said that after the termination the plaintiff complained that she was owed money for doing things in relation to the boat so Mr McDermott said, "Well, just take whatever we owed you out and take a couple of weeks so you can't whinge and average it out." The money was shown as wages in the accounts, "just to claim more in tax, that's all, like everyone else does."
Mr McDermott rejected the suggestion that the termination of the plaintiff's employment was done for the purpose of improving the plaintiff's claim.
In order to understand the evidence of the plaintiff and Mr McDermott it is necessary to say something about the respective personalities of Mr McDermott and the plaintiff.
Mr McDermott was not only forthright but, at time, exhibited a certain impatience with the plaintiff. He had little time for what he described as the plaintiff's "whingeing". He was, as I have noted above, very plain speaking. This no doubt reflected the fact that Mr McDermott was in charge of a fishing trawler at sea for sometimes relatively lengthy periods giving orders to a number of deckhands who needed to be left in no doubt as to what was required of them. I infer that he had a low tolerance level for those around him who did not do their job properly.
By contrast, the plaintiff did not present as an overly confident person. Her ability to function has been affected by pain and pain medication.
The timing of the termination does raise questions about whether it was done with a view to increasing the plaintiff's economic loss. Ultimately, having seen and heard both Mr McDermott and the plaintiff, I accept their evidence about the circumstances of the termination. The situation had been reached where the plaintiff was unable to do the physical work she had been doing prior to the accident and was not doing the administrative work properly. Mr McDermott was no longer prepared to 'carry' the plaintiff.

[76]

Determination

In determining the appropriate award for the future economic loss it is necessary to assess the "most likely" of the possible future economic circumstances facing the plaintiff but for the accident (including type of employment, duration of employment and remuneration), to assess the plaintiff's economic prospects as a consequence of the accident and then to compensate the plaintiff for the difference, where appropriate, through the use of a buffer. Any award must be adjusted to reflect the vicissitudes: s 13 of the Civil Liability Act and see Kallouf v Middis [2008] NSWCA 61 at [7], per MColl JA and Hall J.
The most likely future circumstances but for the accident are that the plaintiff would have continued working for Shelly H Holdings Pty Ltd doing both the physical and the administrative work. This was work that she was capable of doing and that she enjoyed. She was working together with her husband for the benefit of the family. It is the type of work in which she could have avoided prolonged sitting or standing. There is no reason why she would have given up this work and sought work on the open labour market.
The medical evidence did not deal with whether the plaintiff would have been able to continue working for Shelly H Holdings Pty Ltd if she had suffered only the subsequent injury to her right hip. There is no evidence that such an injury would have prevented her from continuing with her pre-accident work.
The plaintiff's prospects following the accident are not easy to assess. In theory, she does have some residual earning capacity. According to Dr Bodel in his report of 9 July 2013 "she would be fit for alternate work on the open labour market but moderate manual tasks only and no running, jumping, squatting or climbing or walking on uneven ground."
To these restrictions the plaintiff would add an inability to sit or stand for long periods. However, neither Dr Bodel nor Dr Schultz specified such a restriction as flowing from the accident. It is not clear therefore that the physical restrictions specified by Dr Bodel would rule out jobs such as working on the check out at Coles, working at Bunnings or in a fish shop.
The plaintiff does have some computer skills. The plaintiff said that she would be able to work in a job where she is not required to sit or stand in one position for long periods of time. Once again, neither Dr Bodel nor Dr Schultz suggest that an inability to sit in one position for a long period of time is a result of the accident.
I accept that as a result of the accident the plaintiff is now required to look for employment on the open market. In reality this will not be easy as the plaintiff's unsuccessful attempts to find work demonstrate. Once an employer is informed of the plaintiff's physical restrictions and age the less likely it is that she will be offered a job.
While it is not out of the question that the plaintiff could obtain permanent full time work the most likely scenario for the future is that she will be able to obtain casual part time jobs and that she will have periods of unemployment.
In the circumstances the imprecision in calculating future economic loss makes the award of a buffer appropriate. Assuming the plaintiff has some residual earning capacity a loss of $175 per week (i.e. half her pre-accident weekly income) would give a figure of $116,471. The calculation is $175 x 783 x.85 = $116,471. Bearing in mind that after the fusion operation the plaintiff will have to reduce her hours of work and limit her work to semi-sedentary I award a buffer of $120,000.

[78]

Past out of pocket expenses

The plaintiff's updated schedule of out of pocket expenses is exhibit S. The amount claimed is $5,312. This figure includes a Medicare payback of $1,771.
There was an issue as to whether the painkilling medication, or pain relieving medication, itemised in the schedule related wholly or in part to the injury to the left foot or whether it related wholly or in part to the right hip injury which dates from about the middle of 2013.
The defendant submitted that the appropriate figure should be $2,159.69 because Exhibit S contains charges which are for unrelated treatment.
I permitted the plaintiff to give further evidence as to whether the pain killing medication itemised in the schedule related wholly or in part to her left foot or whether it related wholly or in part to the right hip injury.
The plaintiff gave evidence that in dealing with the pain from the right hip there was nothing further she could do about the pain medication because she was already on the maximum dosage. The advice she received from her general practitioner was to keep taking the painkiller she was already taking for her foot and, in addition, to apply a heat pack to the hip area.
In further cross-examination the plaintiff said that there was nothing she could do to relieve the pain in her right hip because she was on the maximum medication for her left foot and would have overdosed if she had taken any more.
There is no reason not to accept this evidence from the plaintiff. I propose to award out of pocket expenses for medication as itemised in exhibit S.
The defendant submitted that no allowance should be permitted for the amount of $399 for the purchase of a "York Elite Cycle" from Ulladulla Sports and Toys because there is no evidence that this was required for the injury. It is correct that no evidence was given about this item. In the absence of such evidence I do not propose to include this amount in past out of pocket expenses
The award for past out of pocket expenses will be $5,312 - 399 = $ 4,913.

[80]

Past domestic assistance

The parties have agreed the rate of domestic assistance at $26 per hour.
In the plaintiff's schedule of damages the plaintiff claims domestic assistance for ten hours a day post-surgery for the first six months and ten hours a week to date.
Before dealing with the basis upon which I propose to award damages for past domestic care I make two observations on the expert reports.
First, Ms O'Dwyer, the occupational therapist noted that in the first six months the plaintiff was provided with approximately two hours a day for the first four months and then one hour a day for the following two months. Dr Bodel in his report of 9 July 2013 also set out a history of domestic assistance provided to the plaintiff.
In respect of the first six months these histories do not accord with the evidence in the plaintiff's case, particularly the evidence of Ms Dunn and the plaintiff's mother. I accept their evidence, and the evidence of the plaintiff, as to the level of care provided to the plaintiff in the first six months. It is quite clear from their evidence that the plaintiff was provided with a significant level of care and assistance.
For the period of 6 months following the accident I am satisfied, given the plaintiff's injuries and the restrictions on her movement, that there was a reasonable need for the services provided by Mrs Hamilton and Ms Dunn.
Secondly, to the extent that Dr Bodel and Dr Schulz have expressed opinions as to the hours required for domestic assistance, either in the past or the future, it is not apparent what expertise they have to express this opinion, nor how they have arrived at the figures they have expressed.
In this regard I prefer the evidence as to future care of Ms O'Dwyer who is relevantly qualified to make the necessary assessment. In particular Ms O'Dwyer took into account not only objective pathology and demonstrated functional capacity but her knowledge of how long personal attendant and domestic care activities generally take.
I assess the past domestic care as follows.
In 2010 for the first month the plaintiff was in a wheelchair following her discharge from hospital. For the next three months she was on crutches and a boot. Thereafter, until about mid-September 2010 (i.e. about five months after her discharge from hospital) she used one crutch and then a walking stick.
I accept the plaintiff's evidence that for the remainder of 2010 there was not a significant change in the plaintiff's condition.
For the first six months Ms Dunn provided care from 4.30pm to 9.00pm Monday to Friday and on the weekends as needed. The plaintiff's mother provided care for the first six weeks after the plaintiff's discharge from hospital. She then returned to Sydney for a week or two and then returned to care for the plaintiff for "a little bit less" than two months. In other words the plaintiff's mother provided care for approximately 3 months out of the first 6 months.
Mrs Hamilton provided between 2 to 3 hours personal care a day and between 6 to 8 hours a day of domestic assistance.
When Mrs Hamilton returned to provide care she found that the plaintiff was able to do some things for herself but still required personal assistance of about an hour a day and between six to eight hours a day of domestic assistance.
For this period when Mrs Hamilton was providing care, i.e. three months, I propose to award care for 8 hours a day. The calculation is $26 per hour x 56 hours per week x 12 weeks = $17,472.
For the other three months when Ms Dunn was providing care I propose to award care for 4 hours a day including weekends. The calculation is $26 per hour x 28 hours per week x 12 weeks = $8,736.
In addition, I propose to award an amount for transport assistance as contained in the report of Ms O'Dwyer, namely, 4 hours per week from 1 April 2010 to 30 September 2010. The calculation is 4 hrs pw x $26 per hour x 26 weeks = $2,704.
For at least the first six months the plaintiff was assisted in shopping trips for about 3 hours a week. The plaintiff said that there was one big shop of an hour to one and a half hours and three shorter trips of 40 minutes.
After the period of six months Ms Dunn continued to provide assistance although not as intensively. She visited the plaintiff after school and the number of hours varied.
From the end of 2010 the evidence of what care, and more importantly, of how much care on a weekly basis, was provided to the plaintiff is somewhat sparse. The plaintiff did many of the tasks herself albeit at a slower rate, or selectively, or less often that she might have done before the accident.
Ms O'Dwyer was told by the plaintiff that following the period of six months in which the plaintiff was recovering and mobilising with aids the plaintiff required 3 hours a week of assistance with heavy cleaning and laundry tasks. Ms O'Dwyer allowed for 3 hours per week assistance for the period from 1 October 2010. Since this does not meet the statutory threshold of 6 hours per week I make no allowance for further past gratuitous assistance: s 15 Civil Liability Act.
The total award for past domestic assistance is $28,912.

[81]

Future care

The rate for future care has been agreed by the parties at $38 per hour.
The plaintiff claims the cost of a care on a commercial basis for the remainder of her life as she says that it is not appropriate that her family members provide the care on a long-term basis. She claims future care for four hours a week for life.
The defendant disputes the claim for care based on commercial rates and says that the prospect of commercial care being obtained is remote and is not appropriate in the plaintiff's case.
Ms O'Dwyer said that the plaintiff continues to need assistance with heavy cleaning tasks, cleaning low surfaces and heavy laundry tasks due to the significant restriction in standing and walking tolerances. This need is reasonable given that the plaintiff still walks with a limp and is unable to stand or walk for long periods.
Dr Bodel accepted that the plaintiff had an ongoing need for domestic assistance for household maintenance and cleaning activities.
Neither Dr Bodel nor Ms O'Dwyer distinguished between restrictions caused by the accident and restrictions due to the right hip pain. In this regard I note Ms O'Dwyer noted that the plaintiff rated the pain in her left ankle as on average four out of ten and the pain in the right hip as 6 out of ten.
I award domestic care at commercial rates because the reality is that the plaintiff cannot rely upon her children to provide the assistance, her mother-in-law and daughter who live on the property are occupied with their own demands and problems and there is a limit to the amount of assistance that the plaintiff's mother can provide into the future given her age and the fact that that she lives in Sydney. Domestic cleaning assistance is the type of commercial care which would be readily available.
Dr Bodel, in his report of 10 October 2014, stated that the plaintiff's need for future domestic assistance should diminish with improved function after surgery.
I assume that surgery will occur in 12 years time.
Given that Ms O'Dwyer appears to have taken into account both ankle pain and right hip pain. I propose to award 50% of the domestic care she recommended.
For the next 12 years I award past domestic assistance at 50% of the rate recommended by Ms O'Dwyer, namely, 1.5 hours a week. The calculation is $38 per hour x 1.5 x 473.9 = $27,012.
Following the fusion operation when the plaintiff's need for future domestic assistance diminishes I award 1 hour a week for the remainder of her life which is 36 years. The calculation, deferring the payment for 12 years, $38 per hour x .557 (deferred multiplier for 12 years) x 884.8 (weekly multiplier for 36 years) = $18,728.
I also award an additional 5 hours per week for twelve weeks for the care that will be required following surgery as recommended by Ms O'Dwyer. The calculation, deferred for twelve years, is $38 x 5 x 12 x.557 = $1,270.
The total for future domestic assistance is $47,010.
There is no suggestion that commercial assistance would be required or obtained to feed the farm animals. The plaintiff agreed that the horses on the property could be fed by Mr McDermott when he feeds the cattle from the utility but for the fact that he doesn't like them. Alternatively, the plaintiff's daughters could feed the horses.

McDermott v Woods

At a glance

Court

Decision date

Source

Judgment (83 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)