Ohlstein bht Ohlstein & 3 Ors v E & T Lloyd trading as Otford Farm Trail Rides

Ohlstein bht Ohlstein & 3 Ors v E & T Lloyd trading as Otford Farm Trail Rides - [2006] NSWCA 226 - NSWCA 2006 case summary — Zoe

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9 The appellants pleaded: "The Lloyds were negligent in their provision of horse riding facilities to Tali … and/or were vicariously liable for the negligence of the two leaders on the Ride." 10 Grove J, the trial judge found that the respondents had not been negligent. The appellants' claims were dismissed and they now appeal against his Honour's decision. 11 In his reasons Grove J noted: "By order made on 11 August 2003 it was directed that there be 'a separated trial on liability'. It is common ground that what is to be determined is the liability of the defendants for negligence or breach of statutory or contractual duty, without reference to any issue about whether the plaintiffs, other than Tali, have suffered injury in a category which can be compensated by damages. The causes of action of those plaintiffs are derivative from and dependent upon the viability of action by Tali. Hence the hearing focussed upon whether the defendants were liable for her injuries." 12 The issues as to "liability" before Grove J did not comprise only the question whether the respondents negligently caused the plaintiffs' injuries. The respondents had filed a cross-claim whereby they claimed an indemnity from Ms Duncan. The cross-claim was based on the allegation that Ms Duncan was a joint tortfeasor and, in the alternative, on an indemnity agreement that the respondents contended Ms Duncan had entered into with them. Ms Duncan sought relief under the Contracts Review Act 1980 (NSW) in respect of that agreement. In view of his Honour's conclusion that there was no negligence on the part of the respondents, he did not deal with these other issues. 13 At the commencement of argument on appeal there was some discussion between the bench and senior counsel for the parties as to the issues that the Court was required to deal with. Mr P W Neil SC who, together with Mr Kettle, appeared for the appellants, explained that the appellants wished to agitate two broad issues. The presiding judge, Beazley JA, described and commented on these two issues as follows: "One is that in two relevant respects there were inadequacies of reasons. When I say two relevant respects, this goes to two particulars of negligence, the ones you identified when you opened, namely that the child need not have been allowed to go on a trail ride at all. Alternatively, the child should not have been allowed to go on a trail ride unless led. You say there are inadequacies of reasons in relation to the evidence. That is one issue you want to argue. The second issue is that on all of the evidence before his Honour regardless that there were inadequate reasons, you would say the evidence went all one way in relation to the child not having been led entitled you to a verdict, so we understand you want to argue those points. We think you should be allowed to argue those point[s] and then, obviously, Mr Campbell, you have your response to that. As we see the issue as plainly constituted and the finding of his Honour, this Court would not be in a position to deal with any other issue on this appeal being the issue of contribution and the like …" 14 Beazley JA was not making a final ruling as to the issues that were to be canvassed in the appeal but was indicating the Court's prima facie position, subject to senior counsel's submissions. Senior counsel for all parties did not demur from the propositions so put and it was accepted by them that only the two broad issues outlined by Beazley JA would be addressed in argument and dealt with by this Court. This position did not change and at the close of addresses senior counsel reiterated their agreement to the course that her Honour had proposed. 15 Thus, the issues before this Court are:

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The parties' arguments 16 At trial, the appellants sought to support their case by leading the evidence of two experts on horse riding, Ms Pearson-Adams and Ms Bennit. They also attempted to tender part of a report by a paediatrician, Dr Williams. They submitted that this report was relevant to the negligence alleged, but the judge refused to admit that evidence. This decision by his Honour is challenged in a separate ground of appeal. 17 The thrust of the evidence of Ms Pearson-Adams and Ms Bennit (that remains relevant in the context of the appeal) was that the respondents were negligent in allowing a beginner as young as Tali to go on a trail ride without one of the trail leaders leading her horse. Ms Pearson-Adams and Ms Bennit propounded an absolute rule. There should be no trail rides for beginners of Tali's age at all; or if there are to be trail rides for such persons, their horses have to be led. This position was maintained on appeal. 18 The respondents relied on one expert, Mrs Smyth. In addition, Mr Lloyd, who was in charge of Otford Farm, gave relevant testimony in regard to the negligence alleged, as did Mrs Katherine Caruana and Ms Brooke Warriner, who were trail guides on the ride in which Tali was injured. 19 The respondents argued that, although there were inherent risks in riding horses, and those risks increased for beginners, they had a reasonable system to cope with those risks. 20 The respondents contended that, subject to the proper implementation of their system, it was quite appropriate for them to take a girl aged 5 years 8 months, who was a beginner, on a trail ride. They disputed that that was per se negligence. The respondents, in the course of their business over many years had taken many beginners of Tali's age out on trail rides without their horses being led. 21 The respondents disputed the absolute rule contended for by the appellants, namely, that the horse of a beginner aged 5 years 8 months, should be led on a trail ride. They asserted that it was reasonable for that decision to be left to the discretion of the experienced and trained guide, having regard to the exigencies of any particular situation that might arise. 22 The respondents asserted that nothing had occurred during the course of Tali's ride that should have led the guides to attach a lead to her horse. They pointed out that the accident had occurred near the end of the ride, after Tali had ridden for 45 minutes, and - for a beginner - had ridden well.

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Otford Farm, its operators and trail guides 23 The Lloyd family had owned Otford Farm since 1961. The Farm commenced conducting trail rides in the mid-1970's. Mrs Lloyd then played an active part in the business. Mr Lloyd is the son of Mrs Lloyd. He became involved with Otford Farm's activities from 1978, when he was attending University. From 1981 he worked at the Farm on a full-time basis. 24 By 1998, Otford Farm had been conducting trail rides for members of the public for some 25 years. During this period, many children - including children aged from five to six years - had undertaken trail rides at Otford Farm. As part of Otford Farm's business, it had, for the same period, taught horse riding and ran holiday camps where children (aged from eight years to 16 years) were taught to ride horses. Otford Farm's business increased until it stabilised in the early 1990's when approximately 5,000 persons came each year to ride horses at the Farm. Otford Farm's business bears out the observation in The Horse and the Law, 3rd ed Pannam at 4.20 that trail riding "has become a very popular weekend and holiday activity in Australia". 25 The trail on which Tali rode had been developed and used over the years. It was between 2.5 to 5 kilometres long. It involved going down a creek bank, crossing the creek, going up the other side, ascending a steep, short hill and then going through a section of rain forest and passing through sections that flattened out. It travelled a roughly circular path that the riders traversed in an anti-clockwise direction. 26 Mr Lloyd had had many years experience in running Otford Farm. Grove J regarded him as competent in the work that he did and as possessing the necessary knowledge to conduct the business of operating trail rides in a reasonable and safe fashion. 27 For many years, Otford Farm had employed persons as trail ride leaders. Mrs Caruana and Ms Warriner were two such trail ride leaders. As part of their duties, they cared for the children at the holiday camps, helped the children catch and saddle horses, taught children how to ride and stayed with the children overnight in the cabins. 28 Mrs Caruana was born and raised on a country property and had ridden as long as she could remember. She was on horses when she was in diapers and she started at a pony club at the age of four. She had extensive experience in riding and in trail riding. She was a science graduate and had a Masters Degree in Occupation Health and Safety. She had received "on the job training" for six months after obtaining employment at Otford Farm. It was only then that she was given the responsibility of leading trail rides. In the first six months of her training she went through the standard procedures adopted by the Farm when greeting people who arrived, getting their helmets and making sure that they fitted correctly, "going through their abilities and riding experience and selecting appropriate horses for them and going through the training with them". 29 Ms Warriner recalled being on a horse at the age of three years. She was described as "a city girl whose parents owned a country retreat where she rode horses from about the age of five". From that age she frequently rode trails and engaged in gymkhanas. She obtained a degree of Bachelor of Agriculture, majoring in equine studies. She had the same training as Mrs Caruana while at Otford Farm before becoming a trail leader. 30 In regard to the training Mrs Caruana and Ms Warriner received at Otford Farm, Grove J said that he was unpersuaded that any relevant deficiency had been shown in Mr Lloyd's ability "to or in what he did impart to the employees" and, in particular, to these two persons. 31 It was put to Mr Lloyd in cross-examination by Mr Neil that both Mrs Caruana and Ms Warriner were very experienced riders and were used to trail riding with young children of varying degrees of experience including beginners. Mr Lloyd agreed. Mr Neil put to Mrs Caruana that she was "a very experienced participant" and she agreed. The expertise of Mrs Caruana and Ms Warriner was not challenged. 32 Prior to Tali's accident, an accident had never occurred at Otford Farm through a person falling from a horse and being carried along with his or her foot in the stirrup. There was, indeed, no evidence that any child or anyone else had been injured while undertaking activities on Otford Farm during the 25 years that it had carried on its trail ride business.

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The system adopted by Otford Farm in regard to beginners 33 The safety system adopted by Otford Farm relied on the skill and experience of Mr Lloyd and the trail guides. It is conveniently seen from the evidence of Mr Lloyd, Mrs Caruana and Ms Warriner when they testified as to how it was implemented in relation to Tali and her group. 34 Ms Warriner said that she had a regular routine that she went through with every group that she took riding, and she did this with Tali's group. She gave a preliminary lesson to the persons about to embark on the ride and explained the basics of riding to them. She paid particular attention to beginners and children and made sure that they understood what they were being told. 35 Ms Warriner carefully chose appropriate horses for the individual riders. She ensured that each rider was given appropriate equipment and that the equipment was properly put on and worn. She then put the riders on the horses, and made sure that each could properly sit on the horse, hold the reins, have the feet correctly in the stirrups and control the horse. She made the aspirant riders stand up in the saddle so that she could check the length of the stirrups for each person. She checked to see that the helmets were the right size. She required the riders to nod their heads with their helmets on to see if the helmets moved. She checked the helmets generally. She observed whether the riders were seated and positioned properly in the saddle and assessed whether they had absorbed what she had told them and what they needed to understand in order to undertake the trail ride. 36 Ms Warriner explained how the riders should get their horses to move off and "how to stop your horse, how to turn left and right, how to get it to go, how to sit in the saddle, how to hold your hands, how to position your feet, to lean forward when going up hills and lean back going down hills". She would demonstrate, physically, what should be done in these respects and sometimes would ask a rider to physically carry out what she had demonstrated. 37 The riders then moved off from the mounting yard and through a gate on to the trail. During this preliminary period, Mr Lloyd watched them ride. Mr Lloyd said that he could assess in five minutes how "somebody is sitting and controlling the horse". He said that he could observe within five minutes of watching a person riding, including a young child beginner, whether that person had the ability to control a horse adequately for a trail ride. After that he would leave it to the trail ride leader to determine whether a change should be made, whether the child should be taken off the horse, whether a horse should be led, or whether the ride should continue in the way it had commenced.

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Mr Lloyd replied in the affirmative. 42 The following exchange is relevant: "Q. Would you have expected Kate and Brooke in April 1998, when you had a mixed group of prospective trail riders, including young beginner children, to make a careful assessment of young beginner children to see if those children were suitable in their view to go out on the trail? A. Yes, with the qualification that they would have conducted a transaction with myself in the office and had gone through the process of where they should be and what particular facility they were using at the farm, whether it be a lesson or a pony lead. Q. I'm assuming we have got beyond the office and we are actually at a group of seven or eight or so riders of mixed age and experience, including two young beginner children, and Kate and Brooke are assigned to be the trail ride leaders. In that situation you would expect Kate and Brooke to make a careful assessment of those children? A. Yes, and where they were going." 43 Mr Lloyd said that the exercise of the trail leader's discretion "in relation to young beginner trail riders and the use of leads on the trail" would depend on a number of factors, including "the size of the group, the riding ability of the group, whether they were all the same or whether it was a mixed group" and "whether there were other adults in the group that could lead their own children". He said that sometimes Otford Farm suggested that a child be led if they thought that the child was not capable of fully understanding instructions or was a little nervous or hesitant. 44 Mrs Caruana acknowledged that she had previously used leads in trail rides with young children who were beginners. She said: "Not every child had to be on a lead. Either the mother asked for it or if they were under a certain age they had to be led, or sometimes at the pony club camps if they weren't confident enough or they couldn't control their horse or didn't know how to turn him or pull him up or something, then we'd put a lead on."

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The circumstances leading to Tali's fall 45 On the day of the accident, Ms Duncan took Jared and Tali to Otford Farm. She told Mr Lloyd that she would like to go on a trail ride with her two children. Mr Lloyd told her that Otford Farm provided trail rides or pony rides and she could hire ponies and lead the children while they walked. Ms Duncan refused the pony rides and said she wanted her children to have trail rides. 46 Mr Lloyd thereupon told Ms Duncan, Jared and Tali to go into the mounting yard. There, Ms Warriner questioned them and ascertained that they had not ridden before. She chose horses for them with this in mind. She selected Patch for Tali and a horse named Blinky Bill for Jared. Both these horses were over 20 years of age and were used for beginners every day. They were very docile, relaxed and slow. Mrs Caruana said that these horses had never done anything wrong in the time she had been there. She said that these were the horses to select for nervous beginners. They were "the safest horses generally that we had". 47 Ms Warriner proceeded to give instructions and demonstrations to the group as I have described. She then adjusted the saddles and girths, placed the riders on their horses and saw to their stirrups. While Ms Warriner was so instructing the group, Mrs Caruana arrived. She had returned from a ride and noticed that Ms Warriner was taking out the next group. She went down to the mounting yard to assist her. 48 Mrs Caruana explained in the following testimony what Ms Warriner did once the riders were on the horses. "Q. What did she do then? A. She gave a lesson in how to hold the reins, where to place your feet and how to stop a horse, how to turn a horse, how to kick the horse up if you wanted it to move and not to bring your hands up high. If you bring your hands up high you will lose your balance, so keep them down low and at any time you are feeling unsafe you with [sic] grab the front of the saddle to pull yourself - bring yourself into the seat of the saddle. Q. How did she do that; where was she? A. Everyone was in a semi-circle and she was in the centre of the semi-circle, sort of in between everyone. Q. And did she, apart from saying these things, make any actions to show anybody anything? A. Yes, and everyone had to demonstrate that they were following what she was saying, and if she asked them to turn their horse's head to the right they would have to reach down the rein to turn their horse's head to the right, and make sure everyone was capable. Q. You've said reach down. Could you explain to me how you do turn the horse's head to the right, for instance? A. Just by sliding your hand down the rein and pulling back to your hip or - back to your hip so that it's not coming up high to your shoulder and losing control. Q. Did you see Brooke do those demonstrations. A. Yes." 49 While Ms Warriner was giving these demonstrations, she noticed that Tali and Jared were not paying attention. Accordingly, she asked Mrs Caruana to give a second lesson to Jared. Ms Warriner gave a second lesson to Tali to make sure that she understood what she had been told. Ms Warriner said that she ran through the lesson "one on one" with Tali. Mrs Caruana did the same with Jared. 50 Mr Lloyd, in accordance with his custom, cast a glancing eye over the group. As it was "a mixed group of riders" (experienced riders and beginners) he asked Mrs Caruana to accompany the group on their ride. He suggested to Mrs Caruana that they might have to break up because there were "two different groups of capabilities". Mr Lloyd gave Mrs Caruana a lead rope in case that proved to be necessary for one of the riders, particularly one of the inexperienced riders. 51 Mr Lloyd led Tali's horse out of the gate. Ms Warriner rode in front and Tali was the first rider behind her. Mr Lloyd noticed that Tali was steering the horse and sitting correctly. The following exchange is relevant: "Q. And from what you did see of the instructions and from your own action in leading Tali's horse out the gate and observing the trail ride go off, you had no reason to think that on this occasion there was any need to be concerned about the assessment of Tali and Jared which Kate and Brooke had made? A. No. Q. You would have expected Kate and Brooke, in assessing Tali and Jared as part of the group, to satisfy themselves that those children had understood the instructions that they were given? A. Yes." 52 Mrs Caruana observed Jared for the first part of the ride. She said that he seemed to be enjoying the ride and was quite capable. He had no problems with his balance and was controlling his horse quite well. Mrs Caruana did not consider that there was any need to use the lead she had brought with her. 53 In the first part of the ride there were two or three short trots, each five to 10 metres long, and Tali coped well with these. On one of the short trots Jared fell off his horse, but remounted. The judge was not persuaded that Jared's fall required that anything be done to or for Tali "by way of reasonable response by anyone for whom the defendants are responsible". 54 Throughout the ride Ms Warriner frequently checked on Tali. She looked to see whether Tali's feet were in the right position, that she had control of the horse and that her reins were not too lose or tight. Ms Warriner observed Tali to be coping with the ride "very well for a beginner". Ms Warriner had no concerns about how Tali was riding. Mrs Caruana said that Tali was coping well, she appeared to be centred and balanced and have co-ordination in relation to the holding of her reins. 55 Later the group split and Mrs Caruana took the more experienced riders. This occurred about half way along the ride, after about half an hour's riding. At that point, Mrs Caruana handed the lead to Ms Warriner so that she could have it available while escorting the beginners' group. The division took place because some riders were advanced and the guides thought that it appropriate to separate them from the beginners. 56 Ms Warriner stayed with the appellants and one other young girl who fell into the category of beginners. This girl had done some riding and was a competent young rider. She was riding Hiawatha. Hiawatha had also always been used for beginners and at the time of the trial was still so being used. There had never been any difficulty or hostility between Hiawatha and Patch. 57 Ms Duncan agreed that, on the trail ride, Tali and Jared, to her observation, "had been fine" and "they were enjoying it". From the time the whole group divided, Tali had ridden "very well". She was centred in her saddle and held the reins appropriately. Her feet were appropriately in the stirrups. She did not appear to be anything other than a normal little girl of her age. 58 The accident occurred after the group emerged into an open area. Before then they had been in single file. Once they had moved into the open area, the horses tended to move into a different formation. They were proceeding at a walking pace. Ms Warriner had turned around and was talking to Tali. Suddenly, Hiawatha, who was behind Patch, bit out at Patch's rump. Patch leapt to the side. Tali lost her balance. For about five metres, before Tali hit the ground and while she was still in the saddle, Patch quickened his pace. Tali caught her foot in a stirrup. Patch began to accelerate and run faster and faster. The horse's legs hit Tali as he galloped. Tali's helmet was dislodged and she was dragged along the ground for more than one hundred metres. 59 Ms Warriner agreed that had Patch been on a lead that she was holding, he would not have been able to get to 5 metres away from the point from which he commenced galloping.

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The message underlying Chekhov's observation is applicable to the conduct of litigation. 61 An extravagantly excessive number of causes of action, or grounds of appeal, or particulars of negligence, are often a sign of serious problems with the health of the case being advanced. At the very least, they demonstrate a lack of appropriate consideration in formulating the issues and are obstacles in the path of justice. Apart from causing unnecessary delay and costs, the scattergun approach obscures the true issues, camouflages the pleader's best points, and unnecessarily complicates the task of the judge. 62 Of course there may be cases that are inherently complex and where it is not possible to plead the case or the argument in a simple and concise way. But that is not this case. The accident, tragic as were its consequences, did not involve any intricate or convoluted set of facts or complex questions of law. The facts were relatively straightforward and the legal issues, although not easy to resolve, were capable of simple definition. Nevertheless, the appellants' statement of claim contained no less than 27 particulars of negligence (numbered from (a) to (aa)). 63 Virtually every form of negligence that could possibly arise was pleaded. The particulars of negligence ranged from providing defective equipment of many kinds, to failing to supervise the putting on and wearing of the equipment, to failing to provide equipment, to failing to engage suitable trail leaders, to failing to instruct the appellants properly before the ride, to the choice of the terrain, to failing to lead Tali's horse, to failing to control Tali's horse and to restrain the other horses, to the positions the trial leaders took during the ride, to the trial leaders' conduct after the fall, to failures to warn, and to allowing Tali to undertake the ride at all. 64 Grove J rejected every one of the 27 particulars pressed during the leading of evidence. Whether or not these particulars were listed in order of perceived importance (or in any order) is not apparent. The fact is that - on appeal - of the 27 particulars, only the fifteenth and twentieth particulars (particulars (o) and (t)) remain alive. His Honour's decisions in regard to the remaining twenty-five are accepted. 65 The trial lasted seven days, of which only part of one day was taken up with closing addresses. In that day, all the parties' arguments on the 27 particulars were put to his Honour. On appeal, the two particulars still pressed were argued over an entire day, the Court sitting late so as to enable the addresses to be completed. The inference is that it was only on appeal that the appellants focused, properly, on the critical issues. 66 The approach adopted by the appellants at trial undoubtedly affected the way in which his Honour wrote his reasons. His Honour addressed every one of the 27 particulars of negligence. Many of them did not stand alone in the sense that his Honour's reasons in regard to some had a bearing on his reasons in regard to others. Also, his Honour made general observations applicable to all issues of negligence raised by the appellants. Some of the particulars pleaded had no prospects of success and his Honour dealt with them summarily, as they deserved. Generally, his reasons directed to each specific particular were brief, but this succinctness was no doubt brought about by a desire to confine the judgment to a reasonable length. In the light of the prolix particulars, his Honour's concision was required - to use the language of Justice Oliver Wendell Holmes (albeit in a somewhat different context) - as "a concession to the shortness of life": Reeve v Dennett, (1887) 11 NE 938 at 944. 67 In these circumstances, it becomes difficult for the appellants, as the parties responsible for the unnecessary prolixity, to argue that the judge's reasons were inadequate because of brevity and a failure to deal with each and every argument and sub-issue raised.

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The judge's reasons for not relying, generally, on the appellants' experts 68 Grove J's reasons for rejecting particulars (o) and (t) were based partly, but significantly, on his adverse findings concerning the reliability of Ms Pearson-Adams and Ms Bennit, the appellants' experts. 69 His Honour criticised their testimony in several respects. He observed that Ms Pearson-Adams had been involved as an owner and operator of equestrian training centres for 25 years in the United Kingdom and for seven years in Australia, and said: "Whilst she states that she has been a consultant to trail riding escorts, I apprehend that a recreational trail riding establishment such as Otford Farm is very different from an equestrian training centre." 70 The judge expressed similar views concerning Ms Bennit's expertise. He said that while Ms Bennit was intensely interested in "high grade" equine activities, those activities were "distant from anything that might apply to conduct of or participation in recreational trail riding". 71 Mr Neil submitted that his Honour was wrong in regarding Ms Pearson-Adams as not having the requisite experience in trail riding. Ms Pearson-Adams said that she had acted as "business consultant/advisor" to many equestrian centres, including trail riding centres, in several countries. At the time of the trial she was running her own organisation which was "audited to deliver all the sport and recreation (equestrian) certificate courses, and outdoor recreation (trail riding) courses - this latter includes all of the industry modules covering trail riding accreditation". 72 Undoubtedly, Ms Pearson-Adams had expertise to give opinions on trail riding. The same applied to Ms Bennit. I do not think that his Honour found to the contrary, but considered, rather, that the practical experience of these witnesses had been directed more to aspects of horse riding other than trail riding. In my opinion, if his Honour did err in emphasis in this respect, that error was insignificant. 73 Grove J formed the view that Ms Pearson-Adams and Ms Bennit were partisan witnesses. He observed: "The impression I gained from her report [that of Ms Pearson-Adams] and her evidence was that she engaged in a search for whatever she could to criticise about the Otford Farm's operation. It is not insignificant that much of her criticism is not, and cannot be, pressed in the light of the evidence which emerged. For example, her criticisms of the equipment are not sought to be supported now."

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Mrs Smyth's testimony, generally, was contrary to the proposition that a beginner of Tali's age should not be taken on a trail ride. 81 Grove J said that he preferred the evidence of Mrs Smyth to Ms Pearson-Adams and Ms Bennit. His Honour's preference for Mrs Smyth is an additional reason he gave for rejecting the appellants' case in regard to particular (o). 82 A further reason given by his Honour in regard to this particular, and generally in finding for the respondents, is apparent from the following remarks: "[Ms Pearson-Adams'] thesis is, in substance, that no beginner should be allowed on a trail ride until they are individually led and assessed in an enclosed area. She opines that they should only be taken on a trail ride attached to a lead. The consequence would be that a customer seeking a ride such as in the case in the Ohlstein family on this occasion, would be refused until they had undergone this 'training'. I regard her opinion as describing an unrealistic impediment to the reasonable conduct to be expected of the operator of a recreational trail ride." 83 As part of the judge's observations made generally in regard to the appellant's case, he said: "I do not regard the outcome of the case as simply dependent upon the cogency of different expert views. The outcome depends on whether assertions of negligence are sustained. In making an assessment about that it should be borne in mind that common to all expert's opinion (and I would respectfully suggest to commonsense) is a recognition that one of the risks of riding a horse is that the rider may fall off, even if the horse is walking and it was acknowledged that this is an ever present risk with any level of rider. It accords with the aphorism adopted by both counsel that horses are 'predictably unpredictable'. [That] in the circumstances which occurred even a calm horse such as Patch might 'bolt' and increase the risk of dismounting the rider." 84 I understand these comments to mean that, irrespective of the expert opinions, his Honour considered that it was reasonable not to lay down an absolute rule to the effect that allowing a beginner of Tali's age to go on a trail ride was negligent; it was reasonable to allow the decision as to the competence of the beginner to undertake a trail ride (with or without a lead) to be made by competent expert trail guides (such as Mrs Caruana and Ms Warriner). While there were inherent risks in riding horses, and those risks were increased when the riders were beginners of Tali's age, his Honour considered that society would regard those risks as acceptable (subject to the discretion of the trail guides) when balanced against the benefits and pleasures afforded to the community as a whole from allowing parents to take their young children on trail riding outings. 85 In my view, the reasons given by his Honour adequately explain the reasons which led him to the conclusion he came in regard to particular (o).

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The reasons in regard to particular (t) 86 The specific reason given by his Honour for rejecting particular (t) ("failing to individually lead Tali during the course of the ride") is the following: "This is a thesis that Tali should have been on a lead throughout the ride. I reject this assertion. It might be again commented that until the intervention by Hiawatha [the horse that bit Patch on the rump], all observations of Tali (including those of her mother) were that she was riding well and apparently enjoying the excursion. There was no indication that her horse should have been put on a lead." 87 Mr Neil submitted that the above quoted reasons were irrelevant to the issue. I do not agree. 88 Mr Neil submitted that the respondents' policy of having regard to the capacity of individuals, rather than laying down an absolute prohibitory rule, was negligent. He argued: "It's left to the discretion of the trail leader in circumstances where it is known to [the leaders] and Mr Lloyd that something of the type, some kind of event could occur of the sort that did, which objectively is an ever present risk of catastrophe." 89 Grove J's reasons indicate that he accepted, implicitly, that the respondents' policy was indeed reasonable, and that they had applied it in a way that did not reveal negligence on their part or on the part of their employees. His Honour's reasons were directed to this crucial issue. 90 The fact that Tali had ridden Patch for a period of about 45 minutes before the accident occurred, and she was seen by the two guides to be riding well and enjoying the excursion, supported the finding that there were no reasonable grounds to conclude that she required her horse to be led. 91 It is true that his Honour did not refer expressly to the question whether the respondents' policy, itself, was reasonable in the circumstances. But, due regard must be had to the reasons as a whole. The appellants' argument regarding the adoption of an absolute rule in regard to the use of a lead (like their argument with regard to particular (o)) was significantly premised on the opinions of Ms Pearson-Adams and Ms Bennit. As I have mentioned, his Honour gave reasons, in some detail, as to why he regarded their evidence as unreliable and why he preferred the evidence of Mrs Smyth, Mr Lloyd, Mrs Caruana and Ms Warriner. These reasons apply equally to particular (o). On the evidence of the respondents' witnesses, who his Honour expressly preferred, the circumstances did not reasonably require Tali to be led. 92 I have also mentioned, that, as part of his reasons applicable generally to all the particulars, Grove J considered that, irrespective of the expert evidence, the general assertions of breach of duty were not sustained. I have explained that that statement should be understood as being the conclusion to which his Honour came after undertaking a balancing exercise involving the likelihood of risks on the one hand and the benefits to the community on the other. 93 In my opinion, his Honour gave adequate reasons for concluding that particular (t) should be rejected.

[72]

As I understand the discussion between his Honour and senior counsel when the admissibility of this part of Dr Williams' report was being debated, his Honour did not regard the remaining paragraphs (a) and (c) as being relevant. 101 In sub-paragraph (a) of the disputed passage, Dr Williams said that Tali "would have been able to follow two-three step instructions". In the course of argument on appeal there was some discussion between the bench and senior counsel that was premised on the assumption that Dr Williams was saying, implicitly, that any child of Tali's age would have only been able to follow two-three step instructions. I do not think that this construction of the sentence in question in Dr Williams's report is correct. 102 Prior to the accident Tali had "manifested developmental symptoms which might be labelled as forms of autism". According to the appellants' solicitors, it was believed that she "suffered from a mild form of autism (possibly Asperges syndrome) because of characteristics of aloofness and slight delay". (I should say that the respondents were never informed about this). It was this history that led the solicitors to ask Dr Williams the questions I have set out above. 103 The specific question to which Dr Williams was responding in sub-paragraph (a) was whether, based on the information provided to him, Tali's ability to follow instructions had been affected by "the extent of autism that it was believed she suffered from as at the time of the accident". Dr Williams' reply was a response to this question (which concerned the ability of Tali alone). The reply should not be taken to apply to all children aged five years and nine months. 104 I accept that the reference to the "Denver II" document in the second sentence of paragraph (a) is ambiguous. The purpose of the reference to this material is not clear. It may have been intended to enable a comparison to be made between Tali and a child of her age not suffering from autism. Whatever the intention, I do not think that sub-paragraph (a) tends to prove that all children of Tali's age would have been able to follow two-three step instructions. 105 Apart from the ambiguity I have identified, Dr Williams does not say that all children of Tali's age are limited to following two-three step instructions. Moreover, there was no evidence as to what was meant by two-three step instructions. Finally, it is not at all clear how the concept of two-three step instructions is applicable to riding horses, an activity that may be based, to an important degree, on instinct and natural ability. 106 As regards the bald assertion made in sub-paragraph (b), the question whether a child "with or without autism" can take reasonable care for his/her own safety on the back of a horse is not a question which can be answered by a paediatrician simply on his knowledge of children. Particularly when the opinion is expressed as being applicable to all children, without having regard to the particular capacities of different individuals. What is needed to ride a horse safely is a matter that requires expertise. There was nothing in Dr Williams's report that qualifies him as an expert in this respect. 107 In my view, Grove J correctly rejected this part of Dr Williams's report. In any event, in my view, it adds nothing of consequence to the issues before the Court.

[79]

His Honour did not uphold the plaintiff's argument. He said at 518 to 519: "[T]he defendant was, in my opinion, entitled to rely on the experience and judgment of the escorts on the spot, young as they were, and the general instructions he had previously given them. The plain fact is that there was nothing abnormal or unusual about this trail ride, with the novice riders under escort at the rear, up to the point of the plaintiff's mishap. With the assistance of the escorts, she had successfully coped with whatever difficulties she had encountered, including negotiating the uneven terrain of the 'gulley' with success, even if not with a great deal of confidence. There was nothing to suggest to the escorts that they should have taken Black Gypsy [the plaintiff's horse] on a lead away from the other horses. … [Much] of the case now sought to be made for [the plaintiff] depends upon hindsight, simply because she fell off." The reasoning of Jacobs J is similar to that of Grove J in the present case. 119 The majority of the Full Court was of a different view. Mitchell ACJ found that the defendant had a duty of care that it had breached. Her Honour based her judgment on foreseeability; she did not address the question whether it would have been reasonable for the defendant to take the precautions contended for by the plaintiff. Wells J, in agreeing with Mitchell ACJ, reasoned in the same way. His Honour said at 524: "The existence of a duty of care depended upon whether there was a real, not a far-fetched or fanciful, risk that a class of events would happen that included what in fact happened, and whether what in fact happened was, for that reason, reasonably foreseeable: Mason J in Wyong Shire Council v Shirt . When that test is applied, it seems to me that, in this case, the accident was reasonably foreseeable, and the duty of care arose … Once it is determined that the duty of care arose, it is, to my mind, evident that the defendant failed to do what was reasonable to discharge that duty." 120 Cox J, in dissent, came to the same conclusion as the trial judge, saying at 525: "[T]he respondent was not an insurer. It is possible to look back now and see how this mishap could have been averted, but that is not the test. The respondent was not conducting a riding school. He was making horses available for a trail ride which was conducted under escort. The horse with which the appellant was provided was about 15 years old, broad backed, and exceptionally docile. She was generally given to children or beginners. The respondent was a beginner. She was also a 22 year old pharmacy student, and the respondent was entitled to assume that she would quickly develop enough skill to stay on the horse's back unless something exceptional happened. She did so for half an hour while the group covered about a mile over variable terrain, some of it quite steep …".

[84]

124 In Agar v Hyde (2000) 201 CLR 552 Gleeson CJ said at 561, [15]: "People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also of the public benefit of sport. Sporting activities of a kind that sometimes result in physical injury are not only permitted; they are encouraged. … " 125 In Vairy v Wyong Shire Council (2005) 223 CLR 422 Gleeson CJ said at 426, [5]: "Many forms of outdoor recreation involve a risk of physical injury. In some cases, while the risk of injury may be small, the consequences may be severe. Swimming is a popular recreational activity along the Australian coast. It involves certain risks, and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmers. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality may be a gross and inappropriate interference with the public's right to enjoy healthy recreation." These remarks apply equally to horse riding, and horse riding by young children. 126 There are other factors that must be taken into account in a case of this kind. The following words of the High Court in Derrick v Cheung (2001) 181 ALR 301 at 305, [13] are salutary: "Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care". 127 The need to bear this admonition in mind is particularly important in a case where an accident causes catastrophic injuries to a young child. As Thomas J observed in Kretschmar v The State of Queensland (1989) Aust Torts Reports 80-272 at 68, 892: "When such devastating consequences follow, there is a natural tendency to search for someone or something to blame."

[101]

150 The established rule is that a court may judicially notice a fact whenever it "is so generally known that every ordinary person may be reasonably presumed to be aware of it" (Holland v Jones (1917) 23 CLR 149 at 153). A judge's life experience may cause him or her to form assumptions about certain groups of people, including young children, that are not held by all. There are great dangers in relying on assumptions about the behavioural characteristics of particular groups of people. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Callinan J said at 298 to 299; [251] to [253]: "Judges sometimes make assumptions about current conditions and modern society as bases for their decision. Great care is required when this is done. An assumption of such a kind may be unsafe because the judge making it is necessarily making an earlier assumption that he or she is sufficiently informed, or exposed to the subject matter in question, to enable an assumption to be made about it. That is why judges prefer to, and indeed are generally required to act on evidence actually adduced, and are conservative about taking judicial notice of matters of supposed notoriety." 151 The expert evidence as to industry practice and whether it was appropriate to take a child of Tali's age on the trail ride that she was in fact taken on, without being led, is relevant, but not conclusive as to the issue of negligence. While expert evidence may be of assistance to a court, the ultimate value judgment and the question of negligence is for the court alone. It is to be emphasised, however, that this rule does not expand the ambit of the doctrine of judicial notice. The evaluation must be undertaken by reference to the evidence and the legal principles applicable, and must not be influenced by the judge's personal, subjective views about the issues before the court. 152 As Beazley JA said in Coombes v RTA [2006] NSWCA 229 at [68]: "A judge, as part of the fact finding process, is entitled and often required to make a value judgment in respect of matters of fact adduced in evidence. Such evaluation will be based on many factors, including the judge's life experiences as an individual in society and the judge's training and experience as a lawyer or judge. The evaluation, however, must be in respect of proved facts. A trial judge is not entitled to use personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the prescription for the use of matters of common knowledge." 153 Bearing these strictures in mind, it is necessary to remember that horse riding is a specialised activity, even though it is an activity undertaken in this country by innumerable people, of all ages. The court must eschew any temptation to use personal knowledge about horse riding in making the requisite judgment unless that knowledge falls within the category of matters about which judicial notice may be taken.

[103]

Conclusion 157 I would dismiss the appeal with costs. 158 BRYSON JA: In these reasons I address only the claim of Tali Ohlstein and, as did the judgment of Grove J. and the argument on appeal, I leave unexamined the claims of other appellants and the cross-claim for contribution and indemnity against Ms Vanessa Duncan, Tali Ohlstein's mother. The facts and the issues appear in the judgment of Ipp JA and I will not state them fully. It was contended on appeal that the reasons given by Grove J. were inadequate in a way calling for appellate intervention. I do not examine these contentions in detail as it is not necessary for disposition to do so. I did not find his Honour's reasons inadequate and regard them as appropriately stating the ground for decision. 159 Negligence was alleged with a complexity so bewildering as to risk defeating clarity of thought and adequate adjudication. Practically every aspect of the respondents' activity which had any conceivable relevance was alleged to be negligent, in respects which are sometimes difficult to distinguish from each other. The disadvantages of scattershot advocacy include the risk that it will be self-defeating and involve those attempting to advocate the case in the confusion which it precipitates. An offsetting advantage was the clarity with which it revealed enthusiasm and overstatement by expert witnesses. While it was appropriate to call expert evidence to show what practices were observed in the reasonable conduct of a trail riding establishment, the ordinary knowledge and understanding of members of the community generally, including members of the Court, of the risks and uncertainties involved in riding and controlling even the most placid horses, and of the severe limits on the capacity of young children to control unexpected situations, equip the Court with all the understanding necessary to deal with Particular (t) (Red 4) "failing to individually lead Tali during the course of the Ride", the only particular of negligence which in my view continues to require close consideration. In my opinion this is one of the many cases in which no more than common knowledge is necessary for perception of the existence of the real risk of injury and of the appropriate precautions: see Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 at 368-369 (Taylor and Owen JJ). 160 Particular (o) (Red 4) "permitting Tali, a 5 1/2 year old beginner, to go on the Ride" and Particular (t) are alternatives; if there were available means of conducting the trail ride which dealt reasonably with the risks involved it was not negligence per se to permit a five and one-half year old beginner to go on the trail ride. 161 Ordinary common understanding of life and affairs is enough to show that a horse may make sudden and unexpected movements while being ridden. The skill of riding is a learned skill and equips the rider to control the horse although the horse has a will of its own and has far more physical strength than the rider. Although it is commonplace to hear of people who have great natural skill in riding, and such people say they have ridden from very early ages, sometimes using the imagery that they were born in the saddle, all of them needed to learn to ride at some stage in their lives however early. It is also common knowledge that even a highly skilled rider may encounter injury or death through unexpected behaviour of the horse. The best of riders are thrown, and the most placid of horses become nervous, start, make sudden turns, kick or bolt. This characteristic of horses is illustrated by cross-examination of Ms Pearson-Adams an expert witness called by the appellants, by senior counsel for the respondents (Black 1/150-151): Q. Even a bomb-proof horse, because it is a large, strong animal, can behave in an unpredictable manner; that's right, isn't it? A. A horse is predictably unpredictable. There is no such thing as an unpredictable horse. Q. Even a bomb-proof horse is predictably unpredictable? A. Yes. 162 Any gathering of a score or so of riders will include someone with a plastered arm, a strapped shoulder, a limp or some recent experience of that kind. They all wear helmets for a reason. Mortality from horseriding was high before mortality from motoring overtook it. 163 It is also common knowledge and experience that children of the age Tali Ohlstein was at the time (and she was under six) are not physically adept, have a poor sense of danger and only a slight grasp of the concept of risk; that they do not have insights into the possible behaviour of horses and do not respond quickly or skilfully to unexpected turns of events. 164 It is also common knowledge and experience that riders who are beginners are led until they acquire the skill to control the horse, not merely when the horse is quietly doing the expected, but also to control it when the horse's behaviour departs from the expected. Although everyone knows that people sometimes do wild rash things, in the course of reasonable behaviour beginner riders are led, either by someone on foot or by another rider. This is my understanding of ordinary reasonable conduct with respect to horses, based on experiences of life in the Australian urban world, with its ordinary interaction with rural life and horseriding, extending only to the slightest experience of doing it myself. The reasonable jury would know these things and take the same view. 165 Breach of duty of care is in my opinion to be decided in application of the law as stated in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, a classic passage in Australian law. Justice Mason said: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

[104]

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. 166 Carrera v Honeychurch (1983) 32 SASR 511 arose on facts with some similarities to the facts of the present case, although strikingly different in the respect that the rider was an adult; she had never ridden before, took part in a group ride organised by a riding school, and lost her seat and fell off when the horse made a sudden side-stepping movement. That the rider was an adult would be significant for any assessment of the capacity of the rider to exercise control over the horse: there may have been some justification for assessing the rider as having some capacity of that kind, whereas these could not, in my view, be any justification for such an assessment in relation to Tali Ohlstein. Passages which Ipp JA has set out show that there were significant differences of judicial opinion on duty of care. My own analysis has general similarities to that of Wells J at 524 of Carrera v Honeychurch, which Ipp JA has set out; but the facts are materially different. 167 Senior counsel for the respondents referred to Murray v Haringay Arena Ltd [1951] 2 KB 529 of which counsel said that the conditions of entry as a spectator to an ice hockey match for which the parent of the child agreed informed the duty owed by the occupier to the child. There were no express terms of the contract which the child's father made in paying for admission of himself and the child to premises as spectators of ice hockey. The ice hockey puck struck an infant spectator. Singleton LJ said at 533: "There were no express terms, and thus the liability of the defendants depends on the terms to be implied in the contract. I assume that the infant plaintiff is to be regarded as having entered into a contract with the defendants." The implied terms referred to do not appear to have influenced decision as his Lordship said at 534: "I am not sure that it matters whether it is called negligence or breach of the implied term to take reasonable care: in either event it is for the plaintiff to establish his case." 168 Singleton LJ referred to authorities relating to occupier's liability, including authorities relating to sporting contests and entertainments, decided on the basis of those authorities that "The implied term is to take reasonable care …" (at 536) and further decided that negligence had not been established. That was not a decision in which the duty of care to a child was modified by the terms of an agreement made by the parent. 169 In written submissions the respondents' counsel also referred to several decisions at first instance in Canadian Provinces relating to riding accidents none of which relate to facts closely analogous with the present case and none of which appear, in my respectful view, to establish any important principle. 170 The existence of duty of care and the question whether there was a breach are to be decided according to considerations which affect the respondents, Tali Ohlstein and the relationship between them; that relationship was not contractual, and could not be having regard to the child's age and understanding. The terms and the circumstances of the contractual relationship between the child's mother and the respondents do not in my opinion have any significant bearing on either the existence or on the breach of the duty of care owed to Tali Ohlstein. The child's mother was not in a position to alter, by contract or by any other arrangement, the considerations affecting whatever it was reasonable for the respondents to do with respect to risk of injury to Tali Ohlstein. Warnings given to Ms Duncan, by the display of signs at the respondents' premises or in other ways, could not in principle have any impact on the duty of care owed to Tali Ohlstein; nor could knowledge of risks involved in the activity which was given to Ms Duncan in any other way, or should otherwise have been obvious to her. There is no reason in principle why what Mrs Duncan accepted in the exercise of her parental responsibility should alter what was required by the respondents' duty of care to Tali Ohlstein; the respondents could not depute any part of their duty to Ms Duncan. The display of a sign disclaiming responsibility, upon which the respondents sought to rely in a Notice of Contention, can in a similar way have no effect on their duty of care to Tali Ohlstein, who cannot have had any understanding of the sign. 171 As with many recreations including those involving skill, an element of risk of injury is part of riding, and may even be seen as one of its attractions: Jorrocks, a 19th-century novel, spoke of hunting as having all the excitement of war and only a quarter of the danger. With riding as with other recreations negligence law relates to reasonable response to foreseeable risk, not to eliminating risk. It is beyond doubt that horseriding is a reasonable activity, that it must be learnt, that children as well as adults can learn it; and that with all reasonable care an element of risk remains. Knowledge of risk has a different place in a negligence case relating to an adult rider than it has in a case relating to a young child. Common knowledge and experience make it obviously open to consideration that there was negligence in conducting a trail ride in which a child of 5 1/2 years, who had no previous experience of horseriding, rode an aged and placid saddle horse without a lead rope. Much experience shows that it was unlikely that anything would go wrong, unlikely that the child would fall or that the horse would bolt. Perception of risk may well have been blunted for persons who were very familiar with the operation and the horse, who themselves were very adept at riding and had learned in their childhood, and who had seen the operation performed without mishap many times before. 172 Was it unlikely that something would go wrong and that the child would be injured? Was it reasonably foreseeable that something would go wrong and that the child would be injured? The two questions are quite different. The test of foreseeability is undemanding. The risk that the horse would make some movement which would unseat the child was, in my judgment, quite clear, even though it was unlikely that that would happen. Once it did happen, the means to control the event available in the respondents' system of operation were no more than that the leader would ride up to the horse and take control of it, or endeavour to do so: an uncertain exercise, and one which would not even start until there was a crisis. The entire inadequacy of this response to the risk is illustrated by the event which happened, in which the horse ran many metres and the child was dragged on the ground and suffered injury before the control took effect. As the operation was performed there was no useful available response to the risk. The means of response available were simple and obvious; the leader could have led the beginner rider, or several of them, while riding herself. This would not have eliminated the danger, but would have very greatly reduced the danger, and as a matter of probability (and not of certainty) would have meant that the sudden movement of the horse would have been brought under control much earlier than it was, and the child's fall and injury would have been averted. 173 Particular (t) can be understood at two levels. It was an aspect of the respondents' system of operation that a leader was equipped with and carried a lead rope with which a beginner rider could be led if some event happened during the ride and showed the leader that that was appropriate. This depended on the judgment of the leader in response to some event in the course of a ride. In this system of operation, no means were available to control a beginner's horse, other than whatever the beginner herself might be able to do and whatever may be achieved by attempting an intervention when some untoward turn of events presented itself. I do not think it is too blunt an observation to say that the safety of the beginner was left to the horse. The shortcoming of the system of operation is manifest. 174 The other level at which Particular (t) can be understood relates to negligence of leaders of trail rides in making the judgment which the respondents' system of operation left to them about whether and when it was appropriate to use the lead rope which they carried. The leaders Mrs Caruana and Ms Warriner operated within the respondents' system of operation, in which they were not to intervene and use the lead rope unless in the leader's judgment it was appropriate to do so; as a practical matter, unless some event precipitated decision. There was no event affecting Tali Ohlstein which could precipitate such a decision before the horse shied and galloped off in an uncontrolled fashion: there was one for Jared, who was not placed on a lead. When the conduct of the leaders is examined for acts or omissions of negligence in the course of their conduct of the trail ride nothing appears which calls for consideration. They conformed to their employers' system of operation. The leader attempted to control Tali Ohlstein's horse in response to the adverse situation when it arose, again in conformity with the employers' system of operation, in a situation where the availability of a lead rope could no longer contribute anything. I do not find it surprising, or important at all, that there was no cross examination charging either of the leaders with any act or omission of negligence in their conduct of events during the ride; I see no reason to think that a challenge of that kind could have had any substance. They accepted and operated within their employers' system of operation and appear to have regarded that as appropriate; the leaders cannot in my opinion be regarded as having been in breach of a duty of care. 175 The leaders were very well qualified, in experience and otherwise, for leading a trail ride; both had learned riding in childhood, one from the age of four and one from the age of five. There were no shortcomings in their experience or suitability for the work. They took care to choose appropriate horses and to fit each rider with the appropriate equipment; they also gave appropriate instruction, within the severe limits imposed by the business in hand. Ms Warriner made a careful selection of horses; with good reasons based on experience and knowledge of the horse she regarded Patch as a very safe horse. Ms Warriner gave careful instruction to the beginners including Tali, and gave Tali a second lesson. Although no doubt these preparations were carried out with skill and care and in a responsible way they cannot have done anything to equip a beginner child under six years of age to cope with a horse which became unruly; they cannot have done anything which made it reasonable to rely on the child's ability to do so. 176 Mr Lloyd had even more experience, 20 years involvement in activities at Otford Farm of which 17 years were full-time; he was engaged in the management of the business, and he had no experience of any injury to a person taking part in trail rides or other activities on Otford Farm. Mr Lloyd said in evidence that before Mrs Caruana left on the ride he asked her to take a lead rope, and gave this reason (Black 2/335) "I asked her to take a lead rope because the group was a mixed group, approximately half riders and half beginners. I sent the two guides so that they could split if necessary." There was a policy for use of lead ropes on the trail in relation to young beginner riders, in which it was in the discretion of the leader to use a lead rope held by a trail ride leader connected to the child's horse (Black 2/351). He gave several possible uses for the lead rope as well as leading a rider (Black 2/361). He said (Black 2/352): Q. And in your mind what factors would you expect a trail ride leader to take into account in deciding whether or not to use a lead? A. There would a number of factors depending on the size of the group, the riding ability of the group, whether they were all the same or whether it was a mixed group. It would also depend on whether the adult, whether there were other adults in the group that could lead their own children. 177 Mr Lloyd gave this evidence (Black 2/357-358): Q. Are you saying that a young child beginner only needs the first five minutes to be able to develop those attributes? A. I'm saying we can observe in five minutes how somebody is sitting and controlling the horse. 178 The ability of a child, assessed in five minutes, to control the horse in ordinary favourable circumstances is one thing; the ability to bring under control a horse which has begun to bolt or otherwise behave unexpectedly is quite another. In this passage Mr Lloyd made a claim of ability which is not entitled to acceptance, or to respect. Rather than treating this passage as assisting his case, I regard it as showing that his percipience of risk had been blunted by the absence of adverse outcomes from his own experience. 179 Mr Lloyd's evidence on the use of the lead rope also included this passage (Black 2/352): Q. So all of those aspects would require assessment out on the trail, is that the position? A. Often I have a parent who wishes to lead their own child and start with a lead rope at the start of the trail. Q. And that is something that the parent raises with you? A. Or we suggest to them. Q. Now, when you suggest that to a parent, why is that? A. In the first instance we ask the parent if they would like to lead their child on a pony in an enclosed area. If the parent decides that they are after a trail ride and we don't think the child is capable of fully understanding instructions or is a little nervous or hesitant, then the parent is offered a lead rope to lead their child if the parent is capable of doing so. 180 This passage should be understood with his earlier evidence (Black 2/335-336): Q. Did you watch the group leave for any length of time? A. Yes. Q. What did you do? A. I observed the start of the ride. I actually led Tali's horse out the gate and let go of Tali's horse and then observed them ride off. Q. Why did you lead Tali's horse out the gate? A. Often we need to lead one horse out of the gate just so the others will follow. Q. When you led it out of the gates and let it go did you watch her at all? A. Yes. Q. How was she coping? A. She was steering the horse and sitting correctly. 181 This seems to show that the system of operation was that Mr Lloyd made a judgment about whether a child should be led on the basis of his observations within five minutes of how a child was sitting and controlling the horse. The judgment was made by Mr Lloyd and not by Mrs Caruana or Ms Warriner. 182 Mrs Caruana's view of when a lead rope should be used was (Black 2/244): Q. Was that a common experience for you prior to April 1998? A. Not every child had to be on a lead. Either the mother asked for it or if they were under a certain age they had to be led, or sometimes at the pony club camps if they weren't confident enough or they couldn't control their horse or didn't know how to turn him or pull him up or something, then we'd put a lead on. 183 The system had, in all practicality, no means available to deal with the event that had happened, in which Patch moved to the side, Tali Ohlstein lost her balance, the horse ran off, Tali fell from the horse with her foot in the stirrup and was dragged for more than 100m, and suffered injury through falling, losing her helmet, being dragged by her leg and being struck by the horse's legs. The foreseeability of an event of this kind was altogether clear, and no response was available which could deal with it in any effective way. The absence of actual adverse experience in which this risk matured at Otford Farm appears to me to have little significance in the circumstance that the risk was clearly foreseeable in the application of the undemanding test of foreseeability, the injuries which could be sustained if the risk matured include extremely severe injuries, exemplified by what happened the present case, and the measures required by a reasonable response to the risk were simple, were readily to hand and involved no great difficulty or discernible expense: albeit that they would not entirely eliminate the risk. A system of operation which has been followed for many years without mishap, under the control of well-qualified persons, may yet be negligent. In the absence of actual experience of a risk maturing, competent persons acting (as it were) in their own environment in an operation with which they are very familiar and have often carried out with success, may be less able to perceive a risk of injury which to an outside observer is clearly foreseeable. Practice in the relevant industry or profession is relevant to negligence, and is not conclusive. Decision is for the Court. See Rosenberg v Percival (2001) 205 CLR 434 at 439 [6]-[7] Gleeson CJ and at 453-455 [62]-[63] Gummow J. See too Rogers v Whitaker (1992) 175 CLR 479 at 487. Compare Edward Wong Finance Co Ltd v Johnson Stokes & Master (a firm) [1984] AC 296 where a practice which had been virtually universal among lawyers in Hong Kong throughout living memory was held by the Privy Council to be negligent: see their Lordships' judgment delivered by Lord Brightman at 304B-308H especially 308G-H. 184 The appellants called the evidence of Ms Sandra Pearson-Adams. Ms Pearson-Adams is as well qualified to deal with safety in horse riding as a person could well be; her life has been devoted to equestrian concerns, and has included training horses and students and conducting equestrian training centres for over 30 years, Fellowship of the British Horse Society, participation in equestrian training in many ways and at high levels, production of texts and manuals, and education. In her report (Blue 21-99) she expressed clear views, in very firm terms, about the management of beginners on trail rides and said (Blue 23): Beginner riders should only be included in an outdoor ride if they are 'on the lead rein' - this means that an experienced horse handler/rider will lead the horse/pony of the beginner so that they are always able to control the animal. The leader may be un-mounted, walking beside the rider, or mounted - if the latter case then this must only be on a suitable trained and appropriately sized/stride length animal. 185 Ms Pearson-Adams went on to say in her report that after several hours, as beginners develop some experience, skills and confidence, they may be allowed to ride off the lead for short periods. Ms Pearson-Adams reviewed and expressed opinions on what for practical purposes were all aspects of the conduct of trail riding for beginners at Otford Farm. She stated the view that a number of essential equipment items were not in use on the day of the accident. She gave grounds for an assumption that the stirrups in use were too small for Tali Ohlstein, that the helmet's coming off was more than likely due to the helmet's not having been fitted correctly, that Jared Ohlstein may not have understood the instructions, that the selection of horses and checking and adjustment of equipment were rudimentary, perfunctory and inadequate, that the horses selected proved to be inappropriate and difficult for Tali Ohlstein and Jared Ohlstein to control. She expressed adverse views on the route selected for the ride, on the disposition of the leaders among the riders, on the response after Jared Ohlstein fell off his horse; and on many matters. At many points in her report she recurred to expressions of the view that Tali and Jared because of their age and inexperience should not have participated in the trail ride without a lead rope. In the course of her supplementary report, which was directed to a report by Ms Debbie Smyth and to other material produced by the respondents, she said (Blue 95) "no reputable Equestrian Establishment will allow riders to join the trail ride until they are convinced that they can control their mounts." Her view that a child of Tali's age should not have participated in the trail ride without a lead rope is quite clear and the basis for this view in the need to know that the rider can control the mount, though less frequently reiterated, is also clear. 186 Ms Pearson-Adams' evidence in cross-examination again directed attention to the more important matter (Black 1/138): Q. Well, your main thesis, Ms Pearson-Adams, is that nobody should be allowed out on the trail of the type that Otford Farm has unless they have had a number of horse riding lessons in a paddock; that's right, isn't it? A. No, I didn't say that at all. I said that no-one should be allowed out without being on a leading rein and no-one should be allowed out unless they have shown they are capable of controlling the animal that they are riding. That's not a number of lessons in specific. 187 Cross-examination explored the practicality of conducting trail rides with a number of inexperienced persons. 188 Expressing views on Ms Pearson-Adams' evidence, the Trial Judge in the context of Particular (o) said (Judgment [62]-[63] Red 96-97): 62 This is an articulation of the submission that the defendants breached a duty of care to Tali in not refusing her access to going on the ride at all. This assertion is apparently significantly premised first on the opinion of Mrs Pearson-Adams, who has been an owner and operator of equestrian training centres for twenty five years in the United Kingdom and for seven years in Australia. Whilst she states that she has been a consultant to trail riding escorts, I apprehend that a recreational trail riding establishment such as Otford Farm is very different from an equestrian training centre. I note the information that she was supplied with the expert witness code of conduct. The impression I gained from her report and her evidence was that she engaged in a search for whatever she could to criticize about the Otford Farm's operation. It is not insignificant that much of her criticism is not, and cannot be, pressed in the light of the evidence which emerged. For example, her criticisms of the equipment are not sought to be supported now.

[105]

63 Her thesis is, in substance, that no beginner should be allowed on a trail ride until they are individually led and assessed in an enclosed area. She opines that they should only be taken on a trail ride attached to a lead. The consequence would be that a customer seeking a ride such as in the case in the Ohlstein family on this occasion, would be refused until they had undergone this "training". I regard her opinion as describing an unrealistic impediment to the reasonable conduct to be expected of the operator of a recreational trail ride. 189 When dealing with Particular (t) the Trial Judge said (Judgment [76] Red 99): 76 This is a thesis that Tali should have been on a lead throughout the ride. I reject this assertion. It might be again commented that until the intervention by Hiawatha, all observations of Tali (including those of her mother) were that she was riding well and apparently enjoying the excursion. There was no indication that her horse should have been put on a lead. 190 It appears from Judgment [76] that the Trial Judge was of the view that it was reasonable to await some indication, in the circumstances of a particular ride, that Tali Ohlstein's horse should have been put on a lead, before using a lead rope. This conclusion can be recast in the form that unless some indication manifests itself during a ride that there is or may be a difficulty in the rider's controlling the horse, no control by the leader is reasonably necessary. I regard this analysis as erroneous because the inexperienced child rider's difficulty in controlling the horse if there is some untoward event is altogether clear whether or not any indication of the need to put the horse on a lead has manifested itself on the particular occasion. The manifestation of the need for intervention could take many forms, and the risk that it might take a catastrophic form was clearly foreseeable at the beginning of the ride. 191 The Trial Judge did not refer to Ms Pearson-Adams' evidence when dealing with Particular (t). However his Honour's observations relating to Particular (o) assist understanding of his Honour's view of Particular (t). It must be said that the Trial Judge's impression that Ms Pearson-Adams engaged in a search for whatever she could to criticise about Otford Farm's operation is an impression which would be formed readily on the basis of her report and her evidence. Ms Pearson-Adams spoke from a position of eminence in equestrian affairs and expressed adverse views on so wide a range of matters that the central concern, which she expressed clearly in the opening passages of her report, did not receive appropriate attention. The consideration that there must always be means available to control the horse, and that a lead rope is the appropriate means for beginner riders seems to have passed from the Trial Judge's attention because Ms Pearson-Adams injured the force of her expert evidence and the importance of this consideration by the accompanying maze of criticisms which could not be shown to be important, and in many cases could not be substantiated. The Trial Judge referred (Judgment [63] Red 97) to the practical burden on the operation of requiring that any beginner should only be taken on trail rides attached to a lead, and referred to this as an unrealistic impediment to the reasonable conduct of the operator and at [76] referred only to the lack of untoward indications until the horse Hiawatha bit out at Patch. In so finding the Trial Judge in effect upheld a statement in evidence by Mr Lloyd (Black 2/362): Q. I'm suggesting that before children go out on a trail they should demonstrate a capacity to ride, this is beginner children, the horse in an enclosed area with definite boundaries for the horse such as fencing? A. In an ideal world that would be great if children would have a set of lessons before they rode, along with adults who were beginners, where there was no constraints on time and money. 192 This position had been advocated by the respondents' senior counsel, on grounds he had sought to lay in cross-examination of Ms Pearson-Adams. The need for and the lack of means to control unexpected behaviour of the horse did not receive his Honour's express consideration. 193 Ms Pearson-Adams clearly failed to make a favourable impression on the Trial Judge or to persuade his Honour's mind to a relevant part of her views. It is understandable that her evidence was not found to be impressive; but this is not a ground upon which his Honour should have rejected Particular (t), the force of which depended little if at all on its being expressed in expert evidence. 194 The appellants also called the evidence of Ms Diane Bennit, an equestrian consultant. Ms Bennit's life and career have put her in a position of high expertise in equestrian affairs. She owned and ran Springfield Riding School, one of the biggest riding schools in Western Australia for 40 years until 2001. She has held significant positions including Chief Instructor of apprentice jockey schools for the Western Australian Turf Club and Chief Instructor of the Western Australian Department of Alternative Education Horse Training Course. She has many significant qualifications as equestrian coach and related qualifications; she has represented Western Australia in showjumping and dressage and has held a number of important positions in associations concerned with equestrian affairs; she has been a member of the showjumping Ring Council of the Royal Agricultural Society of Western Australia, National Chairperson of Australian Horse Riding Centres and a Director of the Australian Horse Industry Council. She has instructed at riding schools, pony clubs and adult riding clubs and has trained, assessed and examined training instructors and trail ride leaders. She has a wealth of relevant experience. In her report she gave support at length for her opinion, expressed as follows (Blue 100): Opinion

[114]

Q. Depending on the circumstances? A. Yes. 198 Cross-examination included the following passage (Black 1/189): Q. It is probably easier to ready a normal adult for a trail ride than a child; is that right? A. I don't think so if you're giving them the basic understanding of how to control the horse. Q. The child can pick it up just as well as an adult, are you telling me? A. They should be able to understand it. Q. And even a quite young child should be able to understand it, is that right? A. Should be able to understand it, yes. Q. I suppose a lot depends upon the disposition of the individual; is that fair to say in your experience? A. If you have got someone who was very nervous, they mightn't take it in all that well. 199 Related to this passage is the following (Black 1/192): Q. And even with a beginner, walking a horse, that inherent risk of falling is everpresent, is it not? A. It is everpresent with any level of rider. 200 Cross-examination also included the following passage (Black 1/194): Q. If you accept that the horses are trained horses and are suitable for beginners, is it fair to say that circumstances can arise where even a well trained horse may move suddenly in one direction or another because something has happened? A. Possibly, yes. Q. If that were to happen, then it is possible that a beginner rider might lose his or her balance; is that right? A. Yes. Q. And that might happen whether you are a child or whether you are a teenager or whether you are an adult, is that right, if you are a beginner? A. It would be less likely to happen with an adult or depending on what you call teenager. It is more likely that a child would be dislodged. 201 Cross-examination did not challenge Ms Bennit's references, in expressing her opinion, to the relation between successful control of the horse and instruction and learning how to achieve basic control, developing skills, practice and some degree of strength; and her reference to the need for ability to control the horse before a participant commences a trail ride. 202 The Trial Judge, after expressing in relation to Ms Pearson-Adams the view that her opinion describes an unrealistic impediment to the reasonable conduct to be expected of the operator of a recreational trail ride, went on to say of the evidence of Ms Bennit (Judgment [64] Red 97): 64 I express a similar view concerning the evidence of Ms Bennit. I mention that attached to her report is a list of "positions I hold/have held". These reveal an intense interest in what I would assess as "high grade" equine activity (and even professional in the approval of apprentice jockeys) which I regard as distant from anything that might apply to conduct of or participation in recreational trail riding. Ms Bennit produced and made reference to the membership information kit of the Australian Horse Riding Centres NSW Inc. I do not determine anything based upon it but it is of passing interest to note the contrast between Ms Bennit's expressed views and "Aim and Objective" paragraph 2 of that organization's document which reads in part: "To encourage the Government and the public that they ride at their own risk …. ". 203 Later the Trial Judge said (Judgment [93] Red 102) that Ms Bennit "… manifested a leaning towards fault finding in the defendant." 204 It will be seen that, as with Ms Pearson-Adams, Ms Bennit's evidence was not the subject of detailed consideration by the Trial Judge, and that his Honour was of the view that overall her opinions if followed would unrealistically impede reasonable conduct by the operator of a trail ride. As a general conclusion my understanding accords with that of his Honour; these two witnesses, with life-long high expertise and high positions in equestrian affairs, can readily be interpreted as giving unrealistic counsels of something near perfection. Unfortunately, in their array of criticisms which the Trial Judge regarded as excessive, their evidence did not succeed in directing attention to what, in my judgment, is the central concern.

[118]

She also said (Blue 262): "a fall from a horse cannot always be prevented", and set out a passage from a Sample Horse Riding Agreement form, which states the risks of personal injury and the risks arising from the nature of horses with great clarity. 208 It fell to these expert witnesses to spell out the primary consideration about safety in horse riding which would, in my opinion, be part of the stock of common knowledge available to judges, jurors and generally to persons on whom the duty of finding of facts might fall, without dependence on their expertise. 209 Particular (t) can be restated as an allegation that the reasonable response of the operator of a trail ride to the perceived risk of injury to Tali Ohlstein through a fall from the horse, as she as a beginner rode in a trail ride on the first occasion on which she had ridden at all, is the simple measure of leading the beginner. The learned Trial Judge did not examine this allegation closely, and in his reference to it did little more than to reject it, for reasons which, on a fair understanding of the judgment, were associated with the view that it was an unrealistic impediment to the reasonable conduct to be expected of the operator. In my respectful view the learned Trial Judge was entirely wrong to reject the allegation on this ground; upon the evidence, the risk was extremely plain, the means available to deal with it involved no expense or difficulty and required very little attention at all; that is, the lead ropes which were available could have been used, as a matter of routine, to lead beginner riders rather than being kept available to be used to lead beginner riders in response to some untoward event or other occasion. While I am mindful that a finding on the reasonable response to risk by a primary judge is entitled to respect and is not readily set aside, I am of the view that the erroneous nature of the Trial Judge's conclusion is very clear. Accompanied as it was by a large number of relatively less substantial allegations which I have no doubt the Trial Judge was correct to reject, the force of this important allegation does not seem to have presented itself for consideration. The disappearance of almost all other particulars of negligence, in large part as a result of the Trial Judge's consideration of them, has given the Court of Appeal an advantage which his Honour did not enjoy. 210 My conclusion on Particular (o) is the same as that of the Trial Judge: the contention that a child of Tali Ohlstein's age should not have been taken on a trail ride at all without first having had a number of lessons imposes an undue and impractical burden of the conduct of the respondent's business of providing trail rides. The ready availability of means of controlling a horse ridden by the beginner rider by using a lead rope forms part of my reasons for reaching this conclusion. 211 Judicial observations relating to acceptance of risk in recreational activities have no application to the circumstances of the present case. Knowledge of or acceptance of risks associated with the activity cannot be attributed to Tali Ohlstein. 212 It should not in my view be said that the Trial Judge gave inadequate reasons for his decision not to uphold the allegation in Particular (t): his Honour's reasons appear to me to be expressed with clarity, but it is my respectful opinion that the reasons reveal error. 213 In my opinion the Trial Judge was correct in his rejection of the passage in Dr George Williams' report to the effect that Dr Williams did not believe that any child can take reasonable care for the child's own safety on the back of a horse. If this passage should be understood as an expression of opinion about safety in riding it is too general to have any evidentiary value; and in any event no relevant expertise of Dr Williams appears from evidence. 214 In my opinion the Court of Appeal should allow the appeal with costs, and should determine that Tali Ohlstein's injury was caused by negligence of the respondents in conducting their operation in the respect alleged in Particular (t). The verdict judgment and costs order of Grove J. should be set aside and the proceedings should be remitted to the Common Law Division to be further heard and determined having regard to this decision. The Common Law Division should proceed to determine the remaining issues. It remains for the Common Law Division to decide questions of costs in that Division, including costs of the first trial. **********

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