And:
"Q. How fast was Patch going?
A. He began at a trot and increased his pace to a full gallop."
25 Brooke noticed Tali's foot caught in the stirrup and saw her body hanging underneath Patch whose legs were hitting her as he galloped. Tali's helmet was dislodged during the incident. It was found near a tree. Patch had headed generally towards this tree and then changed direction to head for a track which would lead back to "home".
26 As her horse traversed this track, Tali's stirrup came loose from the saddle and she was deposited on the ground. She was obviously injured and an ambulance was sent for. The ambulance arrived followed later by a helicopter and Tali was taken away for treatment.
27 I prefer the evidence of Brooke Warriner to that of Ms Duncan concerning how Patch came to "bolt". The evidence was that Patch was a calm horse suitable for, and frequently used for, young children and beginners on trail rides. Otford Farm Trail Rides had been operating for many years with a clientele approximating 5,000 riders per year, many of whom were children and/or beginners. There was no evidence of any previous misconduct by Patch nor any challenge to his categorization as a "bomb proof "horse. I note that both counsel repeatedly incanted that horses were "predictably unpredictable", however I consider it more probable than not that an incident such as the invasion of Patch's space by Hiawatha (even if the intended bite did not make contact) would "spook" Patch into acting as he did, rather than reacting the way he did in relatively innocuous circumstances as described by Ms Duncan.
28 I was impressed by Ms Warriner as a witness and I should add also by Mrs Caruana. Neither of them is any longer employed by the defendants nor do they have any apparent connection with them. Mrs Caruana now lives in Muswellbrook. Ms Warriner has been living in England for over four years. I regard them as independent witnesses. In particular Ms Warriner impressed as an astute witness. Some time in 1998 she typed a statement setting out her recollection of the events. It was plain enough to me as a tribunal of fact that Ms Warriner was at one point being cross examined from some document and it was being suggested to her that Otford Farms had a policy that a child of six or under would not be allowed to ride alone and she responded "That is not the way I worded what I said. That is not the way it was to come across in that comment." It was notable that the cross examiner did not seek to pursue the assertion.
29 The Amended Statement of Claim purports to particularize some twenty seven assignments of negligence although once the evidence was completed the case on negligence had reduced to a very narrow focus. It is convenient to deal with the allegations as set out in the pleading. In fairness to counsel I should record that not all of what was pleaded was pressed and I am not suggesting that the relationship between the evidence and issues raised by the pleading were overlooked.
30 It will be convenient to deal with these particulars in terms of the pleading.
31 (a) Failing to provide a riding helmet to Tali that was of:
(i) the appropriate standard;
(ii) the appropriate size;
32 The evidence shows that the helmet provided was conformable with the then current Australian Standard and was in common use by horse riders at the time. There is evidence that the helmet came off and that this was a known possibility for helmets of this type. That it did come off in the circumstances leads to no inference that it was the wrong size or that it was not appropriately fitted. It was appropriate equipment supplied for Tali's use. Like many of these particulars this assertion was effectively abandoned by the time of final address, having regard to the state of the evidence.
33 (b) Failing to ensure that Tali's helmet was securely fastened so that it would not fall off in the event of an accident.
34 Mr Lloyd gave evidence that he checked the security of the helmet on Tali himself. There is no evidence that he did so incompetently. The evidence does not support the proposition that it could be secured "so that it would not fall off in the event of an accident". All the experts were familiar with the propensity of helmets of this design to come off in some circumstances such as a blow to it by striking the ground or a moving horse's leg. It would all depend on the force and the direction in which it happened to be applied.
35 (c) Inappropriately loosening Tali's helmet prior to the ride.
36 The evidence is that the helmet was checked and properly fitted by Mr Lloyd. I am not satisfied that he inappropriately loosened it.
37 (d) Wrongly advising Vanessa that Tali's helmet strap need not be too tight.
38 The drafter of the pleading presumably did not mean to allege that Ms Duncan should have been advised that the strap needed to be too tight. I reiterate that the evidence which I accept is that Mr Lloyd properly and competently adjusted the helmet.
39 (e) Failing to supervise and instruct Tali and Vanessa in respect of the fitting of a riding helmet.
40 Ms Duncan's helmet is not relevant to any issue. There was no need to instruct or advise either of them about helmet fitting as Mr Lloyd had done what was necessary for Tali.
41 (f) Failing to provide the information to Vanessa prior to the ride.
42 I am unable to identify to what information this refers but I do not find that there was any relevant deficiency in the information which was provided by Mr Lloyd, by Brooke and/or by Kate.
43 (g) Failing to ascertain whether Tali was wearing appropriate footwear prior to the ride.
44 It was not contended, nor would I regard it as a reasonable requirement, that a child of Tali's age should be prevented from undertaking a recreational trail ride unless equipped with long heeled or specifically designed riding boots. As abovementioned, Ms Duncan selected a school shoe as appropriate to the occasion and I find that it was so. Whether anyone in particular on the part of the defendants made an observation is not to the point. If they did, they would have been entitled to conclude that the footwear was appropriate for the occasion.
45 There was evidence from Mrs Pearson-Adams (an experienced horsewoman, one of three such who testified, two called by the plaintiffs, and one by the defendants and whom I shall refer to for convenience as the experts), that in her opinion the stirrup was too big for the shoe. The clearance was later measured and as a consequence I do not accept the opinion which she expressed.
46 (h) Failing to provide safety stirrups, such as 'clog' type stirrups that prevent a rider's foot falling through the stirrups and becoming caught.
47 Whilst there is evidence of the existence of the stirrups of the type described, the stirrup used was a standard safety stirrup acknowledged to be in common use in activity such as trail riding. There was no breach of duty on the part of the defendants in supplying such equipment for use by Tali.
48 (i) Failing to use stirrups that automatically detach when a rider falls.
49 The stirrup clipped to the saddle upon a crescent shaped metallic stud. Once attached, the stirrup was not locked in position and was capable of rapidly detaching from its position in the stud. As Mrs Pearson-Adams recognized, and I accept, there is a necessary compromise between the stirrup staying in place whilst the horse if being ridden and having the capacity to slide off if something untoward, such as the foot being caught, happened. The equipment supplied met the test of reasonableness in the circumstances.
50 (j) Failing to properly fit or adjust the stirrup clips.
51 There is no evidence in support of this assertion.
52 (k) Failing to check that the stirrup clips were adjusted so as to automatically detach if a rider fell.
53 The particular as pleaded assumes an availability of a mechanism, not disclosed by the evidence, whereby this could happen. The evidence is that the equipment was a standard design and as abovementioned, included a necessary compromise between security and detachability.
54 (l) Failing to ensure an appropriately sized saddle was available and used for Tali.
55 There is no evidence that the saddle was unsuitable for Tali. There were descriptions of different sorts of saddles but there was no evidence from any source that Tali should have been supplied with one of a different type. In addition to the absence of evidence of unsuitability emanating from the experts, it is significant that Tali was, to the observations of all including her mother, riding quite well up to the point where her mount was interfered with by Hiawatha.
56 (m) Failing to engage leaders with appropriate experience and qualifications.
57 The reasonable requirement of the defendants was to engage suitable staff to lead and escort a trail ride. Kate was born and raised on a country property. She had ridden as long as she could remember. Her extensive experience is recorded in the evidence. I accept it and will not repeat it. She obtained employment at Otford Farms whilst an undergraduate at Wollongong University. She has since graduated in Science and with a Master's Degree in Occupational Health and Safety. For about six months after applying for and succeeding in getting employment at Otford Farm she underwent "on the job training" which she described. Brooke was a city girl whose parents owned a country retreat where she rode horses from about the age of five. She had ridden trails and engaged in gymkhanas. She worked for the defendants whilst an undergraduate of Hawkesbury Agricultural University where she graduated with a degree of Bachelor of Agriculture majoring in equine studies. For some time she also kept a horse of her own on agistment at Otford Farm. Like Kate she was given on the job training for about six months before she was sent out as a trail leader.
58 I am satisfied that these escorts were both of appropriate experience and qualification. I am conscious that it is argued on behalf of the plaintiffs that Mr Lloyd was, in substance, self taught and what he passed on by way of training should be found to be inadequate and I will return to deal with this proposition which is not specifically pleaded in any particular, but is relied upon as allegedly emerging from the evidence.
59 (n) Failing to provide special instructions to Tali and Jared when they knew or ought to have known that Tali and Jared would have difficulty comprehending the instructions provided to them.
60 The evidence is that both Tali and Jared were given one on one instruction and I am not persuaded that there was any reasonable cause for either instructor to infer that her instructions were not understood.
61 (o) Permitting Tali, a 5½ year old beginner, to go on the ride.
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.
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.
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 …. ".
65 As the histories of Brooke and Kate reveal, riding may be commenced at a very young age. There was no breach of duty of care on the part of the defendants in agreeing to Ms Duncan's request that Tali embark on the trail ride with herself and Jared.
66 (p) Permitting Tali, a 5½ year old beginner, to go on a ride over uneven terrain.
67 The evidence is, that until the incident which I find was initiated by the unexpected behaviour of first Hiawatha and then Patch, Tali was admirably participating in the trail ride. There is no evidence that the terrain was uneven at the place from which Patch left the trail, nor that any unevenness of terrain was causally connected with Tali's accident.
68 (q) Permitting Tali, a 5½ year old beginner, to go on a ride of an excessive duration.
69 There was no assertion in the conduct of the case to this effect and I conclude that it represents a hypothesis which occurred to the pleader.
70 (r) Failing to restrain Tali's horse on the homeward stage of the ride.
71 I accept that when Patch departed from the trail and was not being controlled by Tali, Brooke assessed the situation, saw to the security of the other riders in the group (against the risk that their horses might seek to follow Patch) and then rode her horse so as to seek to cut off Patch. She narrowly missed achieving this. Her conduct was a reasonable response to the circumstances.
72 This particular may have reference to evidence that horses have a "homing" instinct and may show a propensity to hurry when headed there. I do not accept that Patch "bolted" from the trail because he sensed that he was approaching home. He was a horse which had been in constant use in riding the trails at Otford Farm. There is no evidence that he ever exhibited such a propensity and there was no reasonable cause to "restrain" him on the homeward stage.
73 (s) Failing to ensure an appropriate number of leaders for the ride.
74 There was an opinion expressed that, having regard to the anticipation that the eight customer riders would divide into two groups, four escorts should have been sent on the ride so that, after splitting into two groups an escort could be positioned in the lead and in the rear of each group. I regard that as an extravagant and unreasonable requirement. I do not accept the proposition that it is a reasonable requirement for an operator of a recreational trail ride that there be provided four escorts for eight riders.
75 (t) Failing to individually lead Tali during the course of the ride.
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.
77 (u) Failing to ensure that the leaders were placed at the rear of the riders during the course of the ride.
78 If this intended to refer to the second stage of the ride, I reject the implied assertion that in the particular circumstances Brooke should have led the ride from the rear. For the first portion of the journey before the groups divided, the evidence is that the escorts positioned themselves at the head and other at the rear.
79 (v) Failing to warn the riders that the horse may become restive or bolt when approaching home.
80 The accident did not occur because Patch became restive or bolted because he was approaching home, but rather, as I have found, because of the interference by Hiawatha.
81 (w) Failing to warn the riders that they were approaching home.
82 Such a warning was not required and in any event, the absence of telling the riders that they were approaching home had nothing to do with the accident which befell Tali.
83 (x) After Jared's fall, failing to suggest the slow group walk home.
84 The suggestion in this particular does not represent a reasonable response to the incident involving Jared. It can be mentioned that all the experts were familiar with occurrences of riders on occasions falling from horses (no doubt that is why helmets are provided and required to be worn) but no one except the pleader has propounded the theory that if such an incident ever occurred, everybody should dismount and walk home.
85 (y) Failing to control Tali's horse adequately or at all when it:
(i) trotted away from the slow group;
(ii) bucked;
(iii) bolted.
86 As above stated, Brooke was a representative of the defendants actually present and her conduct was reasonable in the circumstances which had arisen. Patch did not "trot away" as Ms Duncan propounded and its subsequent behaviour was not within range of control by anyone on a different mount.
87 (z) Failing to provide horse riding facilities that were appropriately matched to Tali's age and level of experience.
88 It was Ms Duncan who selected the particular facility of the trail ride, as distinct from others mentioned by Mr Lloyd whose evidence that he had made known alternatives to her, I have accepted. Patch was an appropriate horse to provide for a young beginner rider such as Tali.
89 (aa) Alternatively, the plaintiffs' rely on the doctrine of res ipsa loquitur.
90 The maxim is applicable when an accident is of the kind which does not ordinarily happen without negligence, that is to say, negligence on the part of a party sued. That a person falls from a horse which is out of control of the rider in the course of a trail ride does not convey a supposition that the most likely explanation is negligence on the part of the operator of the recreational facility.
91 I indicated that I would return to the proposition that, as Mr Lloyd was self taught, then inadequacies inherent in his situation would be passed onto his employees, in particular to Brooke and Kate who would therefore not be suitably trained as trail leaders. The postulation of the plaintiffs' case in this manner did not, as I have commented, find expression in a lengthy table of pleaded assignments of negligence. I gained the impression that it emerged from observation of the contrast between the detailed regulatory regimes postulated by Mrs Pearson-Adams, and Ms Bennit in particular, and Mr Lloyd's reliance substantially upon conducting his operation in a practical way for many years, supplemented by some reading.
92 As already mentioned, Mr Lloyd in particular had many years experience in running the particular facility and I am unpersuaded that he has been shown incompetent either generally or in possessing the necessary knowledge to operate the trail rides in a reasonable and safe fashion. Nor am I persuaded that any relevant deficiency has been shown in his ability to or in what he did impart to the employees, in particular in this instance to Kate and Brooke.
93 A great deal of the expert evidence is not germane to the immediate facts surrounding Tali's accident. As I have remarked, Mrs Pearson-Adams was a strong proponent of extensive training, observation and preliminaries before anyone would be permitted to participate in a trail ride. Ms Bennit was, on this aspect, a little more realistic. She recognized that customers would come virtually "off the street" without formal horse riding training or experience and that a trail ride by such members of the public was a commonly provided facility throughout Australia. I have already observed that an amount of criticism advanced by Mrs Pearson-Adams was not supported by the evidence. Ms Bennit (like all of the experts) incanted her adherence to the Court's experts code, but she also manifested a leaning towards fault finding in the defendant. By way of example I note her gloss upon assumed facts when she referred to Tali complaining that her helmet was too tight and she recorded in her report:
"After Tali complained that the helmet was too tight, Mr Lloyd loosened the chin strap without checking that the size of the helmet was correct."
94 The assumed facts provided to her are annexure B to her report. After reference to Tali's complaint about the helmet strap being too tight the facts provided to her state:
"At this point the owner came by and said words to the effect 'it doesn't have to be that tight, it can be looser than that'. The owner then adjusted the helmet and later told Adam Ohlstein that this is what he had done."
95 There is no reference to Mr Lloyd failing to check that the size of the helmet was correct and Ms Bennit either got this information (which is in fact not supported by the evidence) from somewhere else or it represents a flourish in her focus on fault finding by the defendants.
96 Where there has been conflict of opinion between experts I prefer the evidence of Ms Smyth as reflecting a more balanced view about a recreational facility in distinction from more sophisticated equine activity establishments which appear to be the sources significantly drawn upon by Mrs Pearson-Adams and Ms Bennit.
97 Having made those observations however, I should add that I do not regard the outcome of the case as simply dependant upon the cogency of differing 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 experts' opinion (and I would respectfully suggest to common sense) 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.
98 I recognize that it can be inferred that significant damage was caused to Tali after her helmet was dislodged and she was carried while her foot was caught in the stirrup. As I have indicated in dealing with the particulars of negligence alleged, these factors did not come into play by reason of any reason of breach of duty on the part of the defendants.
99 The plaintiffs' case is also couched in terms of alleged breach by the defendants of obligations imposed by the Fair Trading Act 1987. The plaintiffs' case is based upon six particular representations asserted to have been false. Insofar as the plaintiffs rely upon express representation those pleaded are scarcely supported by Ms Duncan's versions of the abbreviated exchanges between herself and any of Mr and Mrs Lloyd or Kate and Brooke. It is not necessary to elaborate this matter as the plaintiffs' claim on this basis must fail because none of the representations, whether express or implied, was false.
100 For the reasons given in relation to the assignments of negligence pleaded I find (adopting the specifications in paragraph 26 of the Statement of Claim) as follows: