Robert H Jones Investments Pty Ltd v Smith [2025] NSWDC 58 | Case summary | Zoe

NSWNSWDC

Robert H Jones Investments Pty Ltd v Smith

[2025] NSWDC 58

District Court of NSW|2025-03-14|Before: Waugh SC DCJ

View on NSW CaselawOr email me a plain-English summary of this case

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2025-03-14

Before

Waugh SC DCJ

Catchwords

DAMAGES - FOR BREACH OF DUTY OF CARE, CONTRACT AND BAILMENT - Injury to a
horse - Valuation of a chattel - Loss of a commercial opportunity
-
Mitigation

Source

Original judgment source is linked above.

Email me a plain-English summary of this case

Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.

General information, not legal advice.

Or create a free account to save it and ask Zoe follow-up questions.

Catchwords

DAMAGES - FOR BREACH OF DUTY OF CARE, CONTRACT AND BAILMENT - Injury to ahorse - Valuation of a chattel - Loss of a commercial opportunity-Mitigation

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Robert H Jones Investments Pty Ltd v Smith [2025] NSWDC 58

Hearing dates: 8 – 12 April 2024
16 – 17 April 2024
29 April 2024 (closing submissions)

Date of orders: 14 March 2025

Decision date: 14 March 2025

Jurisdiction: Civil

Before: Waugh SC DCJ

Decision: (1) Judgment in favour of the first plaintiff against the defendants in the sum of $78,132.25. (2) Defendants to pay the first plaintiff’s costs.

In the sport of cutting, (as described by Mr Smith) the aim is to separate a single beast out of a herd of cattle with your horse. Once you have separated a single beast from the herd, you put your hand down on the horse’s withers (the top of the shoulder, at the base of the neck) and let the reins go slack. The horse then has to stop that cow from getting back to the herd. From that point the horse cannot feel any sort of cueing from your hand. Part of the judging includes how much slack you have in your reins. You cannot pick your hand up. You have 2.5 minutes to cut a minimum of 2 cows, maximum of 3. Once you have cut the cow out of the herd and put your hand down you have to hold that cow for a certain duration. The duration ranges from 5 to 30 or 40 seconds. According to the rules, you cannot get “off” that cow until the cow has shown submission, which means the cow either needs to be standing still, or facing away from you and the herd, showing that it has given up trying to return to the herd. On average, your horse would be “on” a cow for 15 to 30 seconds. Normally there is about a minute of actual working time. The other part of the 2.5 minutes is actually cutting a cow from the herd. When you are cutting a cow you are steering the horse. The rider of the horse chooses the cow.
Cutting is to be distinguished from the sport of campdrafting. Campdrafting involves (as described by Mr Smith) cutting a cow out of a mob of 5 to 7, controlling the cow at the front of camp (which is a small pen or yard). Once you have demonstrated control, call for the gate and there will be 2 people who open the gate into a bigger paddock. Once in the bigger paddock, you have to guide the cow in a figure of 8 pattern around a set of markers. You are judged on how you control the cow in the camp (maximum score of 26), how you control the cow around the markers (maximum score of 70) and how much of the course you complete (maximum score of 4).
In 2011, Mr Jones decided that he wanted to produce a horse that would be able to compete in cutting and campdrafting competitions by purchasing an egg from a mare in Australia and semen from a stallion in the United States. He arranged for the second plaintiff to purchase frozen semen from a US based sire known as “Metallic Cat” and an egg produced by a dam known as “One More Annie”. The semen cost USD 6,500 in September 2011. The egg cost AUD 13,200 inclusive of GST. Metallic Cat was a very successful cutting champion and One More Annie was a very successful campdrafting champion. The reproduction to produce Moore Metal took place at the Quipoly Equine Centre located in Quirindi NSW in January 2012.
Moore Metal was foaled (or born) on 30 October 2012. It was registered with the Australian Quarter Horse Association on 3 July 2014.
Mr Jones and Mr Smith first met in 2014 at the Tamworth Futurity event. At that time, Mr Jones was looking for a trainer to prepare Moore Metal for competition. During 2014 they had several phone calls and in-person meetings at Mr and Mrs Smith’s property at Tubbul in New South Wales, near Young. During these meetings they agreed that Mr and Mrs Smith would train, feed, house and care for Moore Metal at their property for a fee and they would also pass on any additional costs for things such as medicines, transportation and farriering.
Between 2010 and 2013 Mr Smith had spent 3 years in the United States learning to be a cutting horse trainer and competitor under the guidance of a renowned cutting horse trainer. In 2012, while in the US, he won a “World Title” for novice riders. Mr and Mrs Smith started their business in 2013. As part of the business, Mr Smith breaks in and trains horses for cutting, campdrafting, general stock work and farm work. It takes Mr Smith 1 to 2 years to train a cutting horse and 8 months to train a campdrafting horse. He also rides the horses he trains in competition, particularly in cutting events. At any one time, Mr Smith would be training up to 45 horses.
Mr Jones had Moore Metal delivered to Mr and Mrs Smith on 30 December 2014 to look after and train as a cutting horse. Moore Metal had already been broken in. Mr Smith began training immediately. There was never a written contract. The arrangements were made verbally and on a handshake.
By 2016 Moore Metal was ready to enter cutting horse competitions as a “Futurity” horse. Only 3-year-old horses in their first year of competition can compete in Futurity events.
On 12 June 2016, Mr Smith rode Moore Metal to win the Futurity event at the National Cutting Horse Association Futurity show at Tamworth. This was the largest and most prestigious of the 4 or 5 “major” events held for cutting horses in Australia each year. Moore Metal won with the highest ever Futurity score. Mr Smith had not won the event before. The prize money for winning was $75,000.
On 17 July 2016, Mr Smith rode Moore Metal to third place in the Futurity event at the Darling Downs Cutting Club Futurity show at Toowoomba, in Queensland. This was one of the other 4 or 5 major events held for cutting horses in Australia each year. The prize money for coming third was $4,110.60.
Moore Metal first started servicing mares, generating revenue from breeding, on 23 October 2016. In general, the competition and breeding seasons occur at different times during the year and do not overlap. The competition season for cutting horses runs from about February to about September or October. Breeding generally occurs outside that time. Moore Metal was engaged regularly in providing breeding services after 23 October 2016.
In 2017, Moore Metal finished in 6th place in the Derby event at the National Cutting Horse Association Breeders Incentive show on 22 March 2017 (prize money $296.71); finished in 2nd place in the $10,000 Novice event at the Northern Rivers CHC show on 25 April 2017 (prize money $751.52); and won the Derby event at the Cotton Country Futurity Show, also known as the Goondiwindi Futurity, on 20 August 2017 (prize money $5,786.80). Derby events are aged events for 4-year-old horses.
In 2018, Moore Metal won the Open event at Peel Valley, also known as the PVCC – Armidale Show on 29 March 2018 (prize money $1,396.90), finished 2nd place in the $15,000 Novice event at the same show (prize money $807.56) and 3rd place in the $5000 novice event at the same show (prize money $801.33); won the $15,000 Novice event at the Northern Rivers CHC (prize money ($1,232.22) on 8 April 2018 and finished 5th in the $5000 Novice event at the same show; and finished in 2nd place in the $5000 Novice event at the Southern Cross CC show on 13 May 2018 (prize money $319).
By 13 May 2018, Moore Metal had won a total of $91,214.67 in prize money, or lifetime earnings. It is common ground that upon reaching $100,000 in lifetime earnings, Moore Metal would have qualified to be inducted into the National Cutting Horse Association Hall of Fame.
Mr Smith had ridden Moore Metal in all of his competitive events, except for one.
On the day of the accident, Moore Metal was on his way to compete in the Open Classic event at the 2018 National Cutting Horse Association Futurity show at Tamworth. Classic events are for 5, 6 and 7 year old horses.

Mr Smith trained Moore Metal from 30 December 2014 until the day of the accident on 26 May 2018. He is the one who trained him to be a cutting horse capable of winning one of the 5 major events of the year. He is also the one who rode the horse when he won that event. He rode him in many other events as well. Clearly no one in the courtroom knew the horse better than Mr Smith up to the time of the accident. He had not seen Moore Metal since the accident.
Mr Smith gave evidence by affidavit and orally.
In his affidavit Mr Smith described Moore Metal as “a nice horse although he was small and I considered him a bit weaker than other horses. I could not ask a lot from him as he was not very strong. Through the process of training he became better, but he was not one of the better horses that I had at that time. I considered him in the middle-range of the horses I had that year and middle-range in terms of competitive cutting horses generally.”. Mr Smith’s evidence that “he was not one of the better horses I had at that time” was admitted as proof of his belief only.
Mr Smith gave evidence that Moore Metal was around 14.2 hands high. There was some dispute about this. Mr Jones gave evidence that he was 15 hands high. The difference between Mr Smith and Mr Jones about how high Moore Metal was was left unresolved in the evidence. In cross-examination, Mr Smith said that he had not measured Moore Metal but would not agree that he stands at 15 hands. Mr Jones was not cross-examined on the topic. Neither side produced any objective evidence of Moore Metal’s height. I assume that it would have been a straightforward exercise to use a measuring tape. No doubt it could have been done by Dr Low had he been asked.
The significance of whether Moore Metal is 15 hands high or less is explained by Mr Smith’s evidence that campdrafting horses generally need to be at least 15 hands high.
In his affidavit, Mr Smith provided a commentary about his winning ride on Moore Metal in the 2016 National Cutting Horse Futurity show at Tamworth. He said: “At the futurity I showed Moore Metal very well. I cut three really good cows. Each of the cows showed Moore Metal off well. They had a very controllable flight zone, and submitted quite quickly. I consider that the stars aligned at that showing. I still do not consider him to be the best horse going in to or coming out of the event. I put it down more to the cows than to Moore Metal's skill at that time. There is a level of showmanship involved in it as well. When my hand was up, I separated the cows very neatly. It was a tidy separation. I also know when to turn away or "get off' the cows . I make that decision, not the horse, and then I guide the horse to return to the herd to cut a new cow.”. And: “In cutting, the horse needs to mirror the cow. If the horse is not very athletic, they are unlikely to be very good at mirroring the cow's actions. However, in competition, I know that the competition judges prefer when the horse appears not to do too much. I believe this played to Moore Metal's advantage on that day.”
He said that “(a)fter the Futurity event, I could not get Moore Metal to progress from a futurity horse to a sound competitive older horse. I could not get him to the next level that was required to be competitive when a horse got older and stronger. In that sense, he plateaued.”.
He said that after competing on Moore Metal throughout the rest of 2016 and 2017 he did not consider Moore Metal to be improving and believed he had plateaued. He felt that Moore Metal was lacking his desire to do his job. This led Mr Smith to approach Mr Todd Graham for advice. Mr Graham was a more senior cutting horse trainer and experienced rider. Mr Smith had sought his advice from time to time about a number of horses he had been training. Mr Smith said that Mr Graham made a number of suggestions about Moore Metal’s daily training routine and as to riding him. Mr Smith said he tried the suggestions “but it did not improve Moore Metal’s performance in any meaningful way”.
Notwithstanding his intimate knowledge of Moore Metal over a number of years, what Mr Smith has said on the above matters needs to be considered with some circumspection. I say that for the following reasons.
For example, in cross-examination when shown an article in Australian Performance Horse 2016/2017 Yearbook, he agreed that he had said after Moore Metal’s 2016 NCHA Futurity win that Moore Metal “has been a very well mannered colt all his life… He has always been an athlete and has a lot of integrity. He has a way of using himself in a very smooth soft manner which seems to never scare a cow, resulting in the cow drawing to him.”.
In cross-examination, Mr Smith agreed that Moore Metal’s win in the 2016 NCHA Futurity was and remains his greatest achievement as a trainer. He agreed it is an achievement that up to the hearing he still used to promote his business. He agreed that the traits he liked most about Moore Metal in 2016 were his athleticism and his temperament. He agreed that he would describe Moore Metal as very well mannered in 2017. He agreed that he had not won another NCHA Futurity or trained another NCHA Futurity winner since his win with Moore Metal. He agreed that Moore Metal’s dam, One More Annie had produced champion offspring, including Moore Metal.
In cross-examination Mr Smith agreed that he used ideas in training Moore Metal given to him after speaking to Mr Graham and that as a result he would be looking for some improvement. Curiously, he did not agree that any improvement would be shown in results in competition.
Overall, I formed the impression that in his affidavit and in giving his oral evidence, Mr Smith sought to downplay both Moore Metal’s achievements in competition up to the time of the accident and his prospects for the future. Whether he did this consciously or subconsciously it does not really matter.

Mr Graham had been training horses professionally for 32 years by the time of the hearing. He also competed in Australia and the United States solely in cutting events. He has won the NCHA Futurity event 8 times and the NCHA Derby for 4-year-old horses 9 times. He has trained around 280 horses that have competed in the NCHA Futurity event. He is a former president of the NCHA and was a member of the board for 15 years.
Mr Graham saw Moore Metal compete on numerous occasions, by his estimate maybe 20 times. From his observations of Moore Metal in competition, Mr Graham formed the view that Moore Metal was “a nice type of horse” but “had little instinct to work a cow”. From his observations, Moore Metal seemed to not be improving since the Futurity “and likely going backwards”.
Mr Graham recalled that when Mr Smith came to him for advice about Moore Metal he went and watched Mr Smith work Moore Metal on the practice areas at a show. Mr Graham rode Moore Metal himself and could feel for himself what the horse was doing. The experience solidified Mr Graham’s opinion that “he was too much of a stallion” and “he was getting in the way of his own training and just did not want to put in the work”. Mr Graham offered some advice and he and Mr Smith tried a few things to make it better, but nevertheless Mr Graham was left with the opinion that Mr Smith “did a great job winning the Futurity with Moore Metal but that Moore Metal would not improve”.
In his oral evidence, Mr Graham agreed that the Tamworth show (i.e. the NCHA Futurity show) was the biggest of the 4 majors. He explained that “there’s no guarantees in our sport. It’s not like racing that the fastest horse wins.”. Mr Graham could not recall what competitive results Moore Metal had after he had spoken to Mr Smith and offered him some tips, but he agreed that if the horse then went on and won its next competition that would be a sign to him that there had been some improvement. This is what actually happened - the competition record I set out earlier shows that Moore Metal won events on 29 March 2018 and 8 April 2018 both of which, on the timing of the events as recounted by Mr Smith and Mr Graham must have occurred after Mr Graham had spoken to Mr Smith and offered him some tips.

The parties called 2 expert witnesses to give their opinions of the market value of Moore Metal. The plaintiff called Mr Rich and the defendants called Mr Inglis.
Most of Mr Rich’s affidavits and reports were ruled inadmissible. As such, he did not give any evidence of Moore Metal’s market value.
Two reports of Mr Inglis were provided to the Court: the first dated 21 December 2023, and a second dated 19 February 2024.
In his first report, Mr Inglis expressed the opinion that immediately before the accident “relying only on information available as at 26 May 2018, the value of the horse would have been at most $60,000” and that “(t)he most recent information available since 26 May 2018 confirms my original opinion”. In his second report, Mr Inglis revised this figure to $40,000.
In his first report, read with his second report, Mr Inglis expressed the opinion that “the value of Moore Metal immediately after the injury depends largely on the injuries suffered, most likely in the range of $10,000- $20,000”. He said that “Assuming the correctness of the evidence given on behalf of the plaintiffs, I would value the horse at $10,000.” and “Assuming the correctness of the evidence given on behalf of the defendants, I would value the horse at $20,000”.
In his second report, Mr Inglis expressed the opinion that “Once Moore Metal had recovered as best as he could in the months following the injury after treatment from Dr Pedrana and his prognosis was known and his capacity to collect as confirmed, I would consider his value would increase up to around $30,000.”.
As Mr Inglis sought to give his opinion of the market value of Moore Metal it is relevant to understand what that is.
The concept of market value was considered recently by the High Court, in Williams v Toyota Motor Corporation Australia Limited [2024] HCA 38 in the context of motor vehicles. Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ said at [57] that “Market value is assessed by reference to the price that a purchaser would have paid at the relevant date to a vendor, both of whom are willing but not anxious to trade, with all circumstances subsequently arising ignored.”, citing Spencer v The Commonwealth (1907) 5 CLR 418 at 440-441. Jagot J described what Isaacs J said there as the classic formulation of the common law’s conception of “market value” in Australia (Williams at [195]).
In Spencer v The Commonwealth, Isaacs J said this at 440-441:

Mr Inglis then identified and described the range of relevant factors or “aspects” in paragraphs 21 and 23 to 31. They were gender, age, breeding, performance, performance of offspring, type, trainer, public perception, and colour to some extent.
Applying this methodology, one would expect Mr Inglis to have identified what prices particular horses had achieved in the market (in other words the price they had sold for), then to have compared those particular horses with Moore Metal by reference to the relevant factors he described, and then to have determined whether those sales were comparative (or comparable).
It is not apparent, either from the face of his reports or from his oral evidence, that Mr Inglis did so.
Mr Inglis expressed his opinion about the market value of Moore Metal immediately prior to the accident (at most $60,000) at paragraph 33 of his first report. In the following paragraphs (34 to 49) he set out his reasons for coming to that view. It is arguable that in parts of paragraph 34 he attempted to follow that methodology because he referred to the sale of a number of horses and the prices paid for them, describing some of their attributes, but not expressly comparing them with Moore Metal’s attributes. However, from paragraphs 35 to 49 Mr Inglis surveyed or offered commentary on the aspects of Moore Metal almost exclusively. To the extent that he made comparisons with other horses, they may, in a very general sense, go to what might be considered to be, perhaps, the market generally. But in those paragraphs Mr Inglis did not make any direct comparisons between Moore Metal and other specific horses that might be of the type that he called horses achieving sales in the market. The lack of comparison with other horses is even more starkly apparent in paragraphs 51 through to 57 where Mr Inglis discussed what he referred to as to further pieces of information about Moore Metal which led him to confirm his original opinion of value (paragraph 51).
In his oral evidence, Mr Inglis agreed that his method required him to compare horses that had been sold against Moore Metal. He confirmed that in his first report the comparable horses he used were the ones mentioned in paragraphs 34(b), all sold in 2018, and Metallic Cat, referred to in paragraph 34(d) and sold in 2020. When asked specifically about the horses sold in 2018 and whether he had compared each one with Moore Metal by reference to the relevant factors or “aspects” he had identified earlier, Mr Inglis was unable to supply any detail. In fact it became clear that Mr Inglis had only considered those factors or aspects in relation to Moore Metal, and not the other horses at all. He considered that he knew Moore Metal “much better than I know those five”. He explained that he included the horses mentioned in paragraph 34.b. to give the court the feel for or an idea about the market generally at that time, which he said was very depressed because of the continuing drought.
In his second report, Mr Inglis revised his opinion about the market value of Moore Metal immediately prior to the accident (not been worth more than $40,000), without referring to any comparable sales at all. Assuming that it may have been permissible for Mr Inglis to revise his opinion based on his own analysis and perception of Moore Metal’s “fertility” and “stifle issue”, he still did not identify any prices comparable horses had achieved in the market.
In his second report, when giving reasons for his opinion about the value of Moore Metal immediately after the accident, Mr Inglis again did not refer to any specific comparable sales. He said he based his opinion largely on his experience in the thoroughbred world. He said he had seen cases where injured horses had been sold, without identifying those horses, when they had been sold, at what price and in what circumstances. He said that between 2018 and 2022 he knew of injured thoroughbred horses selling for between $7,000 and $85,000. Again, he did not identify those horses, when they had been sold and in what circumstances. He offered the opinion that Moore Metal when injured would have been on the lower end of this range but he believed the market would “give him some benefit of the doubt given he was a Futurity winner”. He then gave a range of between $10,000 and $20,000, depending on the seriousness of the injury and the likely recovery prospects. Mr Inglis had explained in his first report that thoroughbred horses are racehorses and were different to pleasure horses, which covered all other kinds of horses ridden for pleasure including cutting horses and campdrafting horses. He did not explain why or how the range of selling prices for injured thoroughbred horses related to comparable sales or even a range of sales for injured cutting horses or campdrafting horses. Perhaps the lack of reference to comparable sales is explained by Mr Inglis’ statement in his second report that “it would have been difficult to sell Moore Metal immediately after the accident” and his oral evidence that “it would be very difficult to sell him”.
In his second report, when offering the opinion that once Moore Metal had recovered, his value would increase up to around $30,000, again Mr Inglis made no reference to comparable sales.
My other reasons for not accepting Mr Inglis’ opinion of the market value of Moore Metal at various times are:

The basic principle underlying the assessment of damages for breach of contract and for breach of duty of care is the same. According to the High Court, the settled principle governing the assessment of compensatory damages, whether in actions in tort (which includes negligence) or contract, “is that the injured party should receive compensation in the sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed”: Haines v Bendall (1991) 172 CLR 60 at 63 per Mason CJ, Dawson, Toohey & Gaudron JJ; Brennan J agreeing at 73. Compensation is the cardinal concept and the plaintiff cannot recover more than he or she has lost: Haines at 63.
In law, horses are considered to be chattels or personal property of the owner. See for example, Bell v Thompson (1934) 34 SR 431 at 439 per Jordan CJ (Street J agreeing). It is necessary therefore to see how damages are assessed in relation to damage to chattels. Most of the principles about the assessment of damages in relation to chattels have been worked out in relation to damage to ships, and more recently in relation to cars, but they apply to any damaged chattel: Diamond v Lovell [2002] 1 AC 384 at 406 per Lord Hobhouse, cited with approval by the High Court in Arsalan v Rixon (2021) 274 CLR 606 at [18]. The same point is made in J Edelman, McGregor on D**amages (22nd edition, 2024, Thomson Reuters), where the principles are discussed in great detail in Chapter 38. In The Kingsway [1918] P 344 at 356 Pickford LJ said, in words that seem particularly apt for the present case, “… there is no special measure of damages applicable to a ship different from the measure of damages applicable to any other chattel. The nature of the thing damaged may give rise to more difficult questions in the assessment of damages, but it does not change the assessment in any way.”.
Where a plaintiff’s chattel is damaged as a result of the negligence of a defendant, the plaintiff will generally be entitled to damages for the costs of repair and for consequential loss: Arsalan v Rixon (2021) 274 CLR 606, per the Court (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ) at [18]. This is the normal measure of loss: Talacko v Talacko (2021) 272 CLR 478, per the Court at [45].
If, despite the repairs having been undertaken, the evidence justifies a finding that the market value of the chattel is less than before the damage was done, a plaintiff will be entitled to the diminution in market value in addition to the costs of repair: McGregor on Damages at 38-003, giving as examples Payton v Brooks [1974] RTR 169, [1974] 1 Lloyd’s Rep 241 a decision of the English Court of Appeal, and The Georgiana v The Anglican (1873) 21 WR 280, an Irish decision of Townsend J sitting in Admiralty. In Payton v Brooks a car was fully and “excellently” repaired and there was no issue that the owner was entitled to the full cost of repairs. The issue before the Court of Appeal was whether or not, despite the repairs, the car had a lesser market value as a result of being involved in a collision, which would entitle the owner to additional damages. Having heard from 3 witnesses, the trial judge held that there was no diminution in market value after the repairs were completed. This was a question of fact that the Court of Appeal did not disturb. Nevertheless all 3 members of the court were of the view that damages of the type claimed by the owner could be allowed as a matter of principle. Roskill LJ said that “In a case where the evidence justifies a finding that there has been, on top of the cost of repairs, some diminution in market value – or, to put the point another way, justifies the conclusion that the loss to the plaintiff has not been fully compensated by the receipt of the cost of complete and adequate repairs, because of a resultant diminution in market value – I can see no reason why the plaintiff should be deprived of recovery under that head of damage also”, although His Honour added a word of caution that it was essential in such a case for appropriate evidence to be called to prove diminution in value. In The Georgiana a yacht had been run into and sunk by the defendants’ steamer, the Anglican. Notwithstanding the large expenditure incurred on repairs, the yacht remained “strained; neither the deck nor the whole is staunch as before – the yacht is more leaky as a vessel; less comfortable as a habitation. It may well be doubted whether she can ever be thoroughly restored”. Townsend J accepted expert evidence before him that the yacht’s marketable value had been depreciated by some £300 which his Honour allowed in addition to the cost of repairs.
The cost of repair must be reasonable, both in that the work must be necessary and the charges must not be extravagant: McGregor on Damages at 38-006.
Damages for consequential loss can include damages for loss of profits: McGregor on Damages at 5-054. According to McGregor on Damages, the case law about loss of profits of profit earning chattels developed entirely around ships and damage to ships, and where other than ships are concerned authority is sparse, virtually non-existent: at 38-032 and 38-041. As regards ships, usually the loss of profits are allowed for “the time during which the vessel is laid up under repair in addition to the cost of repair themselves”, but this is just the application of a wider principle where the question is “what is the use which the shipowner would, but for the accident, have had of his ship, and what (excluding the element of uncertain and speculative and special profits) the shipowner, but for the accident, would have earned by the use of her”: The Argentino (1889) 14 App Cas 519, quoted in The Kingsway at 356.
This same general point was made by the High Court in Arsalan, at [18]: “An assessment of consequential loss always requires the identification of the manner in which the loss of use of a chattel has adversely affected the plaintiff.”.
Whilst the basic underlying principle is the same, the analysis in McGregor on Damages draws a clear distinction between cases where a chattel is damaged (which I have been referring to) and cases where a chattel is destroyed. When the chattels or goods have been destroyed “The normal measure is the market value of the goods destroyed at the time and place of destruction.”: McGregor on Damages at 38-065. According to McGregor on Damages, one of the leading modern cases confirming this is the decision of the House of Lords in Liesbosch Dredger v SS Edison [1933] AC 449. After stating the normal measure, McGregor on Damages immediately goes on to say that “In the ship collision cases, it has always been said that the owners of the lost ship are entitled to restitutio in integrum*”*. What this means was explained by Lord Wright in Liesbosch Dredger at 459: “It is not questioned that when a vessel is lost by collision due to the sole negligence of the wrongdoing vessel the owners of the former vessel are entitled to what is called restitutio in integrum, which means that they should recover such a sum as will replace them, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on them, subject to the rules of law as to remoteness of damage.”. His Lordship went on to say (at 460) that “The respondents’ tortious act involved the physical loss of the dredger; that loss must somehow be reduced to terms of money”. And (at 462), “the damages must be assessed as if the appellants had been able to go into the market and buy a dredger to replace the Liesbosch”.
Whilst the basic underlying principle is the same, the separate discussion and analysis in McGregor on Damages of the cases concerning chattels that are damaged and chattels that are destroyed indicates that the two different situations give rise to different considerations in the application of the general principle. The difference is significant in the present case because Mr and Mrs Smith cited and relied upon a number of cases where the chattel had been destroyed, or in the case of horses, killed, as opposed to damaged or injured.

Mr and Mrs Smith assert that the plaintiff failed to mitigate its loss.
McGregor on Damages (at paragraphs 10–002 to 10–006) explains that mitigation concerns avoiding of the consequences of the wrong, whether tort or breach of contract, and that there are 3 different although closely interrelated rules relating to it. The first and most important rule is that the claimant must take all reasonable steps to mitigate their loss consequent upon the defendant’s wrong and cannot recover damages for any such loss which they failed, through unreasonable action or inaction, to avoid. The second rule is the corollary of the first. It is that where the claimant does take reasonable steps to mitigate the loss to them consequent upon the defendant’s wrong, they can recover for loss incurred in so doing; this is so even though the resulting damage is in the event greater than it would have been had the mitigating steps not been taken. The third rule is that the claimant cannot generally recover for avoided loss. Where the claimant takes steps before or after the wrong, or a third party takes steps, that avoid the loss, then this reduces the recoverable loss. The most common scenario is where the claimant takes ordinary or reasonably necessary steps to mitigate the loss to them and those steps are successful. Then, the defendant is entitled to the benefit accruing from the claimant’s action and is liable only for the loss as lessened.
Whether a loss is avoidable by reasonable action on the part of the claimant is a question of fact, not law: McGregor on Damages at paragraph 10–016.
McGregor on Damages explains that often expenditure is made in order to keep the damage within reasonable bounds. Examples are where money is laid out in acquiring or hiring a substitute where the claimant’s property is damaged, destroyed or misappropriated; or where medical expenses are incurred to ameliorate the claimant’s physical injury caused by the defendant. Incurring of expenses such as these may be considered as examples of steps taken in mitigation of damage. See paragraphs 5–059 and 5–060.
In Arsalan the High Court said at [32] (omitting citations): “Where a plaintiff acts in an attempt to reduce a loss, the onus shifts to the defendant to show that the acts actually taken by the plaintiff were unreasonable acts of mitigation. Unless the plaintiff’s actions are shown to be unreasonable, costs that are incurred in an attempt to mitigate loss caused by wrongdoing become, themselves, a head of damage that can be recovered. Even if the costs incurred by the plaintiff are greater than the loss that was attempted to be mitigated, those costs will be recoverable other than to the extent that they are shown to be unreasonable.”.

The provisions in Part 1A of the Civil Liability Act 2002 about proof of causation apply to these proceedings. That is because they concern a claim for damages for economic loss resulting from a failure to exercise due care and skill (s.5A, read with s.5 definitions).
The relevant provisions are s.5D and s.5E, considered by the High Court in Wallace v Kam (2013) 250 CLR 375.
A determination in accordance with s.5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. This involves nothing more or less than the application of a "but for" test of causation. That is to say, a determination in accordance with s.5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence. (Wallace v Kam at [14] and [16]).
The question under s.5D(1)(b) is whether “it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability)”, and in answering that question “the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party” (s.5D(4)). This raises a normative question (Wallace v Kam at [11]).
In a case falling within an established class, the normative question posed by s.5D(1)(b) is properly answered by a court through the application of precedent. In a novel case, however, s.5D(4) makes it incumbent on a court answering the normative question posed by s.5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to "the purposes and policy of the relevant part of the law". (Wallace v Kam at [22] and [23]). One such policy is that liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach (Wallace v Kam at [24] and [26]).

In written closing submissions, counsel for the plaintiff submitted that the plaintiff should be awarded damages in the sum of $314,272.71 before adding pre-judgment interest. This sum was calculated as follows: (a) $298,837, for the plaintiff’s loss of opportunity to earn income from Moore Metal by earning service fees as a breeding stallion, as calculated by Mr Nguyen under his “Scenario 6”; plus (b) $60,000 for loss of prize money, allowed as a buffer rather than the higher figure calculated by Mr Nguyen; giving a subtotal of $358,837; less (c) $44,564.29 by way of allowance for receipt of the benefit of proceeds from insurance; giving (d) the total claimed of $314,272.71.
Although the sum claimed for loss of opportunity to earn income by earning service fees is the sum calculated by Mr Nguyen, counsel for the plaintiff submitted that it was incapable of precise measurement because it was concerned with the future. Mr Nguyen himself recognised the uncertainty surrounding his calculations in his report and in his oral evidence.
Mr Jones gave unchallenged evidence that if Moore Metal had not been injured in the accident it was Mr Jones’ intention to have him compete in his remaining open classic events (age restricted) over the ensuring 2 years as well as all open cutting events (no age restrictions). There are about 10 open classic events that Mr Jones would have entered Moore Metal in over the 2 to 3 years following the accident. Prize money for these events range from between $10,000-$20,000 for the winner of the classics and approximately $5000 for open event winners. Because of the injury suffered in the accident, Moore Metal lost the opportunity to compete in those cutting events and missed the opportunity to win prize money. Once Moore Metal reached about 8 years of age, Mr Jones intention was for Moore Metal to start his career in campdrafting, to follow in the footsteps of his mother One More Annie. There are more than 5 campdrafting events held every week around Australia. Four of the major campdrafting events have prize money ranging from $20,000 to $100,000.
The plaintiff submitted that it was highly likely that but for the accident Moore Metal would have achieved Hall of Fame status with the National Cutting Horse Association.
The plaintiff submitted that because of the injury suffered in the accident, Moore Metal lost the opportunity to compete in cutting events and missed the opportunity to win prize money. The plaintiff also submitted that because of the injuries suffered in the accident, the opportunity for Moore Metal to compete in campdrafting events was lost.
The plaintiff submitted that its loss comprised (a) incurred and future veterinary and related expenses; and (b) a loss of value. It submitted that the first head of loss can be described as the cost of repair, consequential loss or alternatively reasonable costs of mitigation.
If the court adopts Mr Nguyen’s methodology, the plaintiff submitted that his calculation accounts for the incurred and future veterinary expenses because Mr Nguyen has sought to estimate all of the financial loss suffered by the plaintiff. It submitted that Mr Nguyen’s analysis compensates the plaintiff for the resultant loss in value of its income-producing asset, Moore Metal.
As to the possible quantum of prize money, the plaintiff relied upon the record of Moore Metal’s success and earnings from prize money in the 3 years before the accident, and submitted that the figures adopted by Mr Nguyen are “conservative”.

Before going further it is necessary to understand how Mr Nguyen calculates his Scenario 6 figure and what it represents, this scenario being the one the plaintiff urged the court to adopt.
The factual background, which was not in issue, is that as a result of the injuries Moore Metal suffered in the accident, he has not been able to resume his competitive career as a cutting horse but has been able to resume generating income from the provision of breeding services, albeit in a modified manner using a phantom mare.
Scenario 6 represents Mr Nguyen’s calculation of the plaintiff's alleged financial loss relating to the provision of Moore Metal’s breeding services.
Mr Nguyen explained in his report that he sought to assess the financial loss (if any) suffered by the plaintiff by estimating the difference between (a) the financial position which the plaintiff is in as a result of the accident, which he called the “Actual Position”, and (b) the financial position which the plaintiff would have been in had the accident not occurred, which he called the “But For Position”. The Actual Position reflects the cash flows (of revenues and expenses or costs) that the plaintiff has actually derived from Moore Metal, and will (or is reasonably expected to) actually derive, as a result of the impact of the accident. To the extent that these cash flows occurred in the past they are identified from the plaintiff’s financial records. Otherwise, estimation of the actual position requires a forecast or budget of the cash flows the plaintiff expects to derive in the future. The But For Position reflects the counterfactual cash flows that the plaintiff would have derived both in the past and into the future but for the accident.
Mr Nguyen then converted the difference between the 2 sets of cash flows into a lump sum as at the date of the accident by using a discounted cash flow model applying various discount rates for the time value of money and for uncertainty.
Under Scenarios 1, 2 and 3 Mr Nguyen applied a discount rate of 2.4% as a discount for the time value of money without applying any further discount for uncertainty.
Under Scenarios 4, 5 and 6 Mr Nguyen applied a discount rate of 20% for the period 26 May 2018 until 30 June 2023 and thereafter a discount rate of 30% out to the financial year ending 30 June 2033.
The discount rates of 20% and 30% were applied to discount both for the time value of money and for uncertainty. Mr Nguyen explained this in his report under the heading “Discount Rate”:

The plaintiff also relied upon Mr Jones’ evidence that “Hall of Fame status brings not only recognition of a Champion horse but higher interest in breeding rights”. However, this evidence was admitted only as evidence of Mr Jones state of mind.
The defendants submitted that Mr Nguyen’s critical assumption was that if Moore Metal had not been injured, his breeding services would have been in greater demand such that his servicing fees and number of services would have been 11% to 38% higher, and that Mr Nguyen accepted in cross-examination that were that assumption not proved, there would be no loss.
The defendants submitted that there was no evidence that would make out this assumption, and it rises no higher than speculation.
The defendants submitted that there was no evidence, whether expert or lay evidence, that the ‘Hall of Fame status’ would have affected Moore Metal’s breeding numbers and rates (or fees per service) or that the higher the prize money of itself means the more in demand a stallion is and the higher the breeding rights. They submitted that nor was there evidence that an increase of prize money for Moore Metal would have thereby increased his breeding interest and rates. The defendants pointed out that Moore Metal was being advertised as having lifetime earnings of $92,000+. They submitted that there was no evidence that having an extra amount of earnings would have had any difference or, if it did, how much more would need to be earned before it would make a difference or what that difference would be. The defendants submitted that no witness who knew anything about cutting horses gave evidence that lifetime earnings or the Hall of Fame mattered in any way to breeding revenue.
The defendants submitted that what Moore Metal would have done in campdrafting is pure speculation.
The defendants submitted that what evidence there was suggested that limited further income and success was going to come from cutting. This submission was based on evidence establishing that the most lucrative events by far were the major events which Moore Metal could no longer win. The submission was also based on the proposition that the evidence suggested that Moore Metal was a horse that was not improving or was worsening relative to the competition. That conclusion was said to follow from the evidence of the trainers and riders of their personal observations of Moore Metal, which I referred to earlier in these reasons.
The defendants submitted that the court would reject the plaintiff’s analysis of Moore Metal’s results as being pure submission without any support in the evidence. They submitted that Mr Inglis’ analysis of Moore Metal’s “winning record” was lucid and clear and largely unchallenged in cross-examination.

I would be prepared to accept that it is reasonably likely that but for the accident, had Moore Metal continued to compete in cutting horse events he was likely to have won the additional $8,786 needed to gain entry into the National Cutting Horse Association Hall of Fame.
I come to that view based on his past performance, that is to say his actual winnings up to the time of the accident, and the fact that he would have had just short of another 3 years in which to achieve it. It would be a relatively small sum compared to his past prize money, although I recognise that the vast bulk of that ($75,000) came from winning the one event in his first year. The personal observations of the trainers and riders add little if any relevant evidence to this issue. None of them suggested that Moore Motal was unlikely to win any more prize money at all. I place no weight on Mr Inglis’ analysis of Moore Metal’s past performances and his opinion that Moore Metal was a failed cutting horse because these parts of his report were only admitted as proof of his reasoning, and not as proof of the truth of what he said. That is also why his analysis was unchallenged in cross-examination.
However, accepting that Moore Metal was likely to have gained entry into the National Cutting Horse Hall of Fame only gets the plaintiff a small part of the way to demonstrating that the accident caused the loss of a commercial opportunity which had some value (not being a negligible value).
The plaintiff presented no direct evidence to demonstrate how or why entry into the Hall of Fame, or for that matter continuing to compete, winning prize money in cutting events and then campdrafting would have translated into the ability to charge a higher breeding service fee and to sell more services.
If past experience showed that there was a correlation between entry into the Hall of Fame, continuing to compete and winning prize money, and charging higher breeding service fees and selling more services, then one would have expected that the plaintiff could have called evidence about that.
The defendants justifiably submit that there was no evidence, whether expert or lay, that Hall of Fame status would have affected Moore Metal’s breeding numbers and fee per service or that higher price prize money would have led to more demand. I accept there no direct evidence on those matters.
In effect the plaintiff asks the court to infer that entry into the Hall of Fame, and continuing to compete, winning prize money in cutting events and then campdrafting would have made Moore Metal a more desirable and in demand stallion translating into the commercial opportunity for the plaintiff to supply more of Moore Metal’s breeding services at a higher fee per service.
At this stage it is not necessary for the plaintiff to establish that entry into the Hall of Fame and so on would have led to a 38% increase in the service fee and in the number of services, or any lesser percentage. But it is necessary for the plaintiff to prove on the balance of probabilities that entry into the Hall of Fame and so on would have provided a commercial opportunity which had some value (not being a negligible value).
I am not satisfied that the plaintiff has established this on the evidence before me.
I am therefore not satisfied that the plaintiff has proved on the balance of probabilities that it has sustained some loss or damage, by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value).
That conclusion is reason enough not to accept the plaintiff’s primary claim based upon Mr Nguyen’s Scenario 6.
However there are some other reasons why I would not accept Mr Nguyen’s Scenario 6:

(a) Concerning 4CYTE gel specifically, in his report Dr Jacobs said that it is a treatment for arthritis which in his opinion has minimal or no effect for a case such as this and it seemed to him that these treatments are largely unnecessary. In his oral evidence he explained that it reduces the inflammation in the affected joints. Dr Major agreed with Dr Jacobs’ categorisation of 4CYTE gel as an “ancillary” expense, adding that it was not directly related injury and its management. In Dr Major’s opinion, it had obviously been prescribed in good faith. In his oral evidence Dr Jacobs explained that some veterinarians would prescribe the use of 4CYTE gel in order to try to improve the condition of the horse on the basis that it may help. However, in his opinion based on scientific evidence associated with its use, it would have minimal or no effect on the outcome for the case. Dr Jacobs did not cavil with Dr Majors’ expression of opinion that it had been prescribed in good faith. (b) In the minutes of their conclave meeting of 11 April 2024 (Exhibit 12) Dr Major and Dr Jacobs recorded that they agreed that neither of them would have included 4CYTE gel as part of the treatment for this horse, however it is used by many respected colleagues and has some positive therapeutic actions. (c) Concerning Ulcershield specifically, Dr Jacobs explained that it is required to treat gastric ulcers in horses, and it improves the horse’s appetite. He said that it had largely been used when Moore Metal was at Dr Pedrana’s hospital and it may well have been used because Moore Metal was not eating adequately. Dr Jacobs said he would use the drug in that situation. Dr Major said that it is a fairly common practice to place hospitalised animals on the treatment as a preventative measure. (d) The plaintiff submitted that whilst the respective experts would not describe the expenses for 4CYTE gel and Ulcershield as necessary, they were reasonably incurred and related to the injury suffered in the accident. (e) The defendant submitted that these were additional and unnecessary costs. The defendant submitted that the plaintiff had no regard to cost of treatment and had the plaintiff been more cost-conscious and asked the veterinarians to focus only on treatment that was necessary, they are costs that would not have been incurred. The defendant submitted that the costs were too remote to be recoverable. (f) In my view the test is one of reasonableness. Whilst Dr Major and Dr Jacobs may not have used for 4CYTE gel themselves in the circumstances, their evidence was that it was used by many respected colleagues and has some positive therapeutic actions. It was reasonable for the plaintiff and Mr Jones to have relied upon the good judgment and training of Dr Pedrana and Dr Low, particularly in circumstances where they were treating Moore Metal with good success. In my view the expense of using 4CYTE gel was reasonably incurred and ought to be allowed. The same would apply to the use of Ulcershield, particularly given the evidence of Dr Major that is a fairly common practice.

The plaintiff also sought as a past expense the cost of transporting Moore Metal from Dr Pedrana’s hospital in Dubbo to WestVETS Equine Hospital & Equine Reproductive Centre at Marburg in Queensland. There is no dispute about the amount – it was $715.
The plaintiff referred to the oral evidence of Dr Major who said that Moore Metal probably would not have made that journey had he not been recuperating from an injury. Dr Major said that Moore Metal would certainly have been transported, but not that particular trip.
The defendants submitted that Moore Metal was transferred to commence breeding and that such transportation would have been required in any event (whether from the defendants’ property or Dubbo Equine Hospital) in order to commence breeding.
Mr Jones gave unchallenged evidence in his affidavit that Moore Metal was transported to WestVETS “to continue with treatment and so he could be closer to University of Queensland for future MRI scans to ascertain the damage to his ligament and tendons”. That is consistent with the ongoing treatment referred to in the veterinary reports after Moore Metal was taken to Queensland.
Having regard to Dr Majors’ and Mr Jones’ evidence in particular, in my view the transportation of Moore Metal from one equine hospital to another was a cost reasonably incurred and arose from the injury suffered in the accident**.**
The total of the above past costs or expenses is $67,016.79.
The plaintiff submitted that an amount should be deducted from that sum to account for expenses which would have been incurred in any event but for the accident, “whether the appropriate counterfactual is a breeding stallion or a breeding and competing stallion”.
Evidence about the costs that would have been incurred in any event on the assumption that there was no accident and Moore Metal had continued to compete, or that he was only to stand at stud and not compete was given by Dr Jacobs (for the defendants) and Dr Fulton (for the plaintiff).
The plaintiff submitted that unless the damages award accounts for the fact that Moore Metal lost the opportunity to earn more prize money and higher breeding rights, the appropriate counterfactual is a breeding stallion.
The defendants submitted that this cannot be correct in circumstances where it was never Mr Jones intention that Moore Metal be a breeding stallion. The defendant submitted that Mr Jones intention was always to compete with Moore Metal and it was only later that he turned his attention to focus only on breeding.
Insofar as the defendant raises questions of the plaintiff’s (or Mr Jones’) intentions. It is clear that prior to the accident the plaintiff intended that Moore Metal would both compete and provide breeding services. That changed as a result of the accident. After the accident Moore Metal was no longer able to compete, but he has been able to provide breeding services.
In my view it is appropriate to deduct a sum to take account of the expenses that the plaintiff would have incurred in using Moore Metal as a breeding stallion but for the accident, as opposed to those expenses which may have been incurred in breeding and competing because:

Based on Dr Major’s evidence, counsel for the plaintiff submitted that Moore Metal would continue to provide breeding services to age 20 and that he could live to age 30.
Counsel for the defendants submitted that the evidence as to life expectancy of Moore Metal is not clear. Counsel submitted that Dr Major said that some horses “can” (not are likely to) live up to 30 years but their athletic ability and soundness and fertility drops off after 20 years and that he also said a number of horses die of illness or misadventure or become athletically unsound but that this number is “not quantified, and would vary considerably with breed and usage”. Counsel submitted that there is therefore no evidence as to how long Moore Metal will live or be able to keep performing.
What does the evidence say?
In his report of 9 August 2023, Dr Major addressed the likely lifespan of Moore Metal. He said that without this injury it would be reasonable to expect Moore Metal to participate in the sport of campdrafting to the age of 20 years. Some horses may live on up to 30 years or more, but their athletic ability and soundness, as well as fertility, drop off after 20 years. A number of horses die of illness or misadventure before this time or become athletically unsound. This number, to Dr Major’s knowledge, is not quantified and would vary considerably with breed and usage. Having regard to Moore Metal’s injuries and recovery and assuming that Moore Metal had good libido and serving capacity on a breeding mount, and that he exhibits good serving capacity and fertility, Dr Major expected no limitation in Moore Metal’s breeding capacity as long as he maintained sufficient comfort and soundness to serve the breeding mount. If he became severely lame in one or both front legs it would severely impair the process of semen collection, and hence his breeding rate. Earlier in his report Dr Major had said that he considered it highly likely that pastern joint arthrodesis will be required in the future. In this procedure the joint is fused, for relief of pain and instability. Having regard to that high likelihood of requiring surgery particular, Dr Major expressed the final conclusion that Moore Metal was unlikely to reach the expected productive age of 20 years, and his breeding career will most likely be reduced, both in demand and duration.
By the time of the hearing it was no longer the case that it was highly likely that pastern joint arthrodesis will be required in the future. Dr Jacobs, Dr Fulton and Dr Major all agreed at the hearing that the pastern joint has effectively fused such that a surgical arthrodesis is very unlikely to be necessary.
In his oral evidence, Dr Jacobs said that there were very few risks for Moore Metal going forward beyond the natural, being the fact that he has a recovering deep flexor tendon laceration and fused pastern. He said that “(h)orses in this situation can be completely okay but still have evidence of lameness, and they can live a full and complete life”.
In his report of 13 February 2024, Dr Jacobs had expressed the opinion that “Moore Metal will be able to continue to stand as a breeding stallion with routine ongoing care taking into account the requirement to continue with farrier work as indicated by Dr Fulton”. Dr Fulton agreed with this in his report of 4 March 2024.
When asked in oral evidence if he agreed with this, Dr Major said:

For the first period, the plaintiff also claimed as a fourth item an allowance for an increased risk of a one-off cost for euthanasia and disposal, at a cost of $5,000.
The total of all 4 items, the plaintiff submitted, represented its claim for future expenses over the first nine-year period; that total being $56,120. The plaintiff also recognised that an allowance should be made for the costs that the plaintiff would have incurred in any event but for the accident, being the figure of $1,115 per annum allowed in respect of the past expenses for the annual veterinary and farrier costs for a stallion standing at stud (or breeding). It submitted that the appropriate allowance was $10,035, being the annual figure multiplied over 9 years. Deducting one from the other, the plaintiff submitted that the net future expenses claim until the anticipated end of Moore Metal’s breeding career at age 20 was $46,085.
Because this part of the claim related to the future, the plaintiff acknowledged that it should be discounted for its present value and what it described as the imponderable factors that necessarily call for a discount, such as the possibility of the earlier demise of Moore Metal. Rather than undertake that exercise in a mathematical way, the plaintiff submitted that it would instead be appropriate to allow for this head of damage by way of a buffer. The amount suggested was $37,500.
For the second period, the plaintiff submitted that the same costs would be incurred beyond 20 years of age, and an award of damages should be made on account of the expected life of Moore Metal to 30 years of age. It submitted that it was appropriate to allow a further amount on a buffer basis for this additional period. The additional amount suggested was $10,000.
The defendants submitted that the plaintiff’s claim for ongoing veterinary fees into the future cannot be advanced. They submitted that the plaintiff had cited no authority for the proposition that a defendant’s duty of care extends to liability for damages to an indeterminate and ongoing claim for ongoing costs associated with a chattel. They submitted that there was no basis of on which the defendant should be held liable for an indeterminate claim for the maintenance of Moore Metal.
In my view it is important to recognise that the claim relates to the ongoing expense of 3 particular items. The ongoing need for 2 of those items is undisputed, and in fact deemed as essential, on the veterinary evidence – that is the need for corrective shoeing and the related cost of x-rays. Further, there is no issue that the need for them has arisen from the injuries sustained in the accident.
The position in relation to the 3rd item, the phenylbutazone, is different. Dr Major described it as like giving a human an aspirin. Dr Jacobs’ opinion was that it was not required. Dr Major said “we really can’t predict that into the future”.

Robert H Jones Investments Pty Ltd v Smith

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

Judgment

Introduction

A.UNCONTROVERSIAL FACTS

Before the accident Moore Metal had been a competitive cutting horse and breeding stallion

The accident (26 May 2018)

After the accident

Veterinary reports

B. EVIDENCE ADMITTED ON A LIMITED BASIS

Evidence of trainers and riders of their observations about Moore Metal’s qualities ~ admitted on a limited basis

(a) Mr Smith

(b) Mr Todd Graham

(c) Mr Jason Leitch

(d) Mr Corey Holden

(e) Mr Hugh Miles

C. VALUATION EVIDENCE

D. THE DAMAGES CLAIMED BY THE PLAINTIFF AND THE DEFENDANTS’ RESPONSE IN OUTLINE

The plaintiff’s claim

Mr and Mrs Smith’s response

E.THE APPLICABLE LEGAL PRINCIPLES

General legal principles

Mitigation

Loss of a commercial opportunity

Causation – Civil Liability Act 2002

F. CREDIBILITY OF WITNESSES

G. DID THE PLAINTIFF FAIL TO MITIGATE ITS LOSS?

The defendants’ submissions about the failure to euthanise

Evidence about consideration or advisability of euthanasia

(a) Dr Pedrana

(b) Mr Jones

My analysis

Failure to sell Moore Metal

H. THE PLAINTIFF’S PRIMARY CLAIM BASED ON LOSS OF A CHANCE (USING MR NGUYEN’S REPORT)

How the plaintiff puts its primary case in more detail

Mr Nguyen’s Scenario 6

The claim for loss of prize money

Is the plaintiff entitled to pursue a claim based on Mr Nguyen’s report?

My analysis, findings and conclusions on the plaintiff’s primary claim

My conclusions

Loss of prize money based on Mr Nguyen’s report

My conclusions about the plaintiff’s primary claim

I. THE PLAINTIFF’S ALTERNATIVE CLAIM BASED ON INCURRED AND FUTURE EXPENSES AND LOSS OF VALUE

Claim for past and future expenses

Past expenses

Life expectancy

My finding on life expectancy

Future expenses

A check on the plaintiff’s suggested buffers

My conclusion about future expenses

Claim for a sum on account of the diminution in market value of Moore Metal

J. Proceeds of insurance

K. Summary of damages payable

L. Costs

M. Orders

Parties

Legislation Cited (2)

Cases Cited (10)