Robinson v Riverina Equestrian Association

Catchwords: CIVIL LAW – separate determination of issue of liability – where toddler injured when kicked by horse at show-jumping event – where plaintiff’s injuries unlikely to stabilise for many years – quantum uncertain until that time – where liability in issue – where memories of witness will fade – relevant consideration – whether potential savings illusionary – order for separation of issues made

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 29.4

Cases Cited: Crawley v Vero Insurance Ltd [2012] NSWSC 593
El Chami v Mackie [2019] NSWSC 821
Robinson v Riverina Equestrian Association [2022] NSWSC 1613
Southwell v Bennett [2010] NSWSC 1372

Texts Cited: N/A

Category: Procedural rulings

Parties: Scarlett Anne Robinson bnhf Anthony James Robinson (Plaintiff)
Riverina Equestrain Association (First Defendant)
Equestrian Australian Limited (Second Defendant)
Charles Sturt University (Third Defendant)
Chloe Mannell (Fourth Defendant)

Representation: Counsel:
K Andrews (Plaintiff)
J Sexton SC and Reno Gambi (Defendants)
Solicitors:
LawAdvice Compensation Lawyers (Plaintiff)
DWF Law (Defendants)

File Number(s): 2020/00313256

Publication restriction: N/A

EX TEMPORE JUDGMENT

1. By notice of motion filed on 14 February 2025, the four defendants seek an order under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the issue of liability be heard separately and in advance of the issue of quantum. The basis of the application is that the young plaintiff, who was kicked by a horse at a show jumping event in 2017, has injuries, the extent of which will not be able to be properly assessed for several years. The defendants also rely on delays which have beset the case and the impact of that delay on the witnesses’ memories and their psychological and emotional wellbeing. The plaintiff neither consents to, nor opposes, such an order being made. However, the plaintiff raises a significant matter concerning one of the witnesses, that is, the plaintiff’s mother, and submits, somewhat faintly, that the better course may be to refer the whole of the matter for mediation.

2. The notice of motion is supported by an affidavit of the defendants’ solicitor which annexes a significant amount of lay and expert evidence. The parties filed a joint application book, and that included helpful written submissions prepared by junior counsel for the defendants and counsel for the plaintiff. The defendants are represented by senior counsel on the brief hearing this morning.

3. A loose chronology of relevant events and the course of the litigation is as follows:

4. On 26 February 2013, the plaintiff was born.

5. In 2002, the fourth defendant was born.

6. On 4 November 2017, the plaintiff then aged four years, attended a show jumping event at the Charles Sturt University Equine Centre. The fourth defendant, then aged about 15 years, was riding a horse which kicked the plaintiff causing her injuries.

7. On 2 November 2020, the plaintiff, by her father acting as her next friend, commenced proceedings for damages in the District Court.

8. On 15 February 2022, on the plaintiff’s application, the hearing date was vacated and placed in what was described in the material as the “inactive list”. This was based on certain expert evidence which suggested that the extent of the plaintiff’s injuries and disabilities remained uncertain and would not become certain for some time.

9. On 30 June 2022, the plaintiff successfully sought an order transferring the matter to this Court. The basis of that application was that the amount of damages may exceed the jurisdictional limit of the District Court.

10. On 17 October 2022, the parties reached an in-principle settlement agreement. That agreement came before this Court for approval, and on 23 November 2022, Campbell J disapproved of the settlement agreement, noting that the plaintiff’s “prognosis is uncertain”: Robinson v Riverina Equestrian Association [2022] NSWSC 1613.

11. On 19 March 2024, the plaintiff served a neuropsychological report under the hand of Dr Donald Rowe. That report is an important document in the context of the resolution of the present application, in that the expert observed that the plaintiff cannot be fully assessed until reaching the age of 17 to 18 years.

12. On 4 April 2024, the plaintiff’s lawyers sought an adjournment for 12 months, telling the Registrar that the plaintiff was 11 years old and that her injuries had not stabilised. The defendants consented to the adjournment, noting that they needed an extended period of time before further neuropsychological testing could be undertaken.

13. Between 2022 and 2024, the parties have exchanged various witness statements and expert reports, chiefly going to the issue of liability, and the issues between the parties are set out with admirable clarity in the pleadings. I don’t propose to dwell on those here, other than to note that there is clearly, based on the evidence in the court book and the pleadings, at least some issue as to liability on the part of each of the four defendants. In very brief terms, the plaintiff alleges that the first, second and third defendant breached their duties of care in failing to adequately separate spectators from the horses, and that the fourth defendant breached her duty of care in failing to dismount her horse. Liability is denied by each of the defendants.

14. The legal principles are not in serious dispute and the parties, particularly in their written submissions, took me to several cases where various propositions and relevant factors were explained: Southwell v Bennett [2010] NSWSC 1372, El Chami v Mackie [2019] NSWSC 821 and Crawley v Vero Insurance Ltd [2012] NSWSC 593.

15. The starting point is in r 28.8 of the UCPR which provides that a single trial should determine all questions and issues arising on the claim, unless the Court otherwise orders. In Crawley v Vero Insurance Ltd, Beech-Jones J said that an order under r 28.2 of the UCPR is an exception to the general rule and is to be regarded as an exceptional measure. His Honour noted that the purported savings in costs and court time, often alleged in applications of this kind, is very often illusionary.

16. In the present case, there are two factors which militate reasonably strongly in favour of an order being made.

17. First, because of the delay to this point, and the anticipated delay before the plaintiff’s disabilities will be clear enough for the Court to make a reasoned assessment as to the quantum of damages, there is a risk that the memory of the two lay witnesses will be adversely affected. Those witnesses are the plaintiff’s mother, who took the plaintiff to the show jumping event that day, and the fourth defendant, who was riding the horse which kicked the plaintiff. It is noted again that the fourth defendant was only 15 years at the time of the incident and is now about 22 years of age. The impact on her memory in particular is a significant matter, given her age.

18. Second, there is some evidence that the fourth defendant has been traumatised by the incident and the ongoing litigation. While the plaintiff’s mother may well be a witness on the issue of quantum, the fourth defendant will not. Further, one would have hoped that, if the issue of liability is resolved in favour of the plaintiff, the defendant would not be inclined – either as a matter of forensic strategy or common decency – to mount a serious attack on her evidence as to her daughter’s injuries and disabilities.

19. I note for the record that the defendants suggest in their written submissions that, if the issue of liability is resolved against them, they will be motivated to reach a settlement on the question of quantum. While the warnings expressed by Beech-Jones J in Crawley v Vero Insurance Ltd resonate in the context of that suggestion, I am prepared to proceed on the basis of the defendants’ goodwill, although, I note that Mr Sexton SC today acknowledged that the same problem which underpins today’s application will also be an issue if the parties come to negotiate on a settlement.

20. Having perused the pleadings in the matter and the defences raised by each of the defendants, I accept that this is a case where the issue of liability and the issue of damages are quite separate and quite distinct. I also note that the latter remains uncertain, noting the opinions of Dr Rowe, for example:

“[203] … Therefore, it will be important to monitor for the effects of a potential more clinically significant secondary ADD condition in the future as the information load and complexity increases during her high school years.”

“[220] At Scarlett’s young age she is yet to develop her independence so it is difficult to fully ascertain what her future capacity will be, and/or her future level of functional impairment. From a qualitative perspective, Scarlett continues to have a considerable but age-appropriate dependence upon her mother and father and her activities of daily living are restricted due to her young age. A possible exception, is household chores where her mother reported that Scarlett is often the last one out of her siblings to do a chore and requires additional prompting. This can reflect a modest level of impairment that is typical of Mild NCD.

[221] In summary, whilst Scarlett continues to show some subtle features of a Mild NCD she is largely able to compensate for underlying weaknesses to what is an age-appropriate level and with only a modest or benign level of impairment to her activities of daily living, with the exception of household chores. In this regard, Scarlett most likely falls closer to that of a Mild NCD, but her ultimate capacity, due to her young age, remains guarded.”

“[247] As discussed further below, in paediatric TBI there is sometimes the case where there is a deterioration in cognitive and intellectual functioning as they fail to keep up with their normal developing peers, along with a potential decline in emotional and behavioural functioning.”

“[264] Therefore, we may see a further future decline in Scarlett’s intellectual functioning relative to her current measurements as she fails to keep up with her developing peers and as she becomes increasingly overloaded by the increasing information load and complexity of high school. In this regard it will be important to obtain future neuropsychological follow-up during her late adolescence…”

“[266] In addition, as the information load and complexity increases through to later adolescence and early adulthood, the patient’s vulnerability to cognitive fatigue and overloading can increase further leading to potential burnout or chronic fatigue and a poorer performance on intellectually demanding tests and tasks with greater cognitive demand, in addition to everyday activities.”

“[268] Given Scarlett’s parents are both tertiary educated and successful in their professions, it would be expected that Scarlett would proceed along a similar academic and professional path. However, her prognosis with respect to her future academic and professional ability is now guarded due to her measured cognitive and intellectual weaknesses, vulnerability to fatigue, and the potential for these to have a greater negative impact in the future.

[269] It is possible that Scarlett may improve with further developmental maturation but clinical literature would suggest this is not always the case particularly in the case of more significant TBIs.”

“[274] These studies, together with Scarlett’s current test results, together with her history of some more subtle emotional and behavioural difficulties, suggests her prognosis is still guarded with respect to the potential for future social and emotional decline in during her adolescence and early adulthood.”

“[279] Given it has been over six years since Scarlett’s injury she is unlikely to experience further significant cognitive recovery given the expected natural recovery with respect to brain injuries being largely limited to over the first year post-injury with minor improvement in the second year. However, due to her relatively young age she will continue to develop and there will be some ongoing level of maturation and advancement in her intellect and capacity but as mentioned it she may experience a relative decline as she fails to keep up with her maturing peers.

[280] With respect to the organic effects of the injury her condition can be considered as largely stablished in that her future improvements will be the product of maturation and compensatory adaptions, rather than any further neuronal recovery. Her cognitive and intellectual weaknesses are most likely permanent, although she may experience improvement in some areas with further maturational development and compensatory strategies, but as mentioned she may also experience a relative decline.”

10. Based on the foregoing facts and circumstances, I am satisfied that the present litigation represents an exception to the general rule in r 29.4 of the UCPR and that an order under r 28.2 should be made. I am particularly swayed by the length of the delay to this point, and the anticipated delay before the extent of the plaintiff’s neurological injuries and disabilities will be able to be evaluated. This is not a case where the savings of costs to the parties will be illusionary. I have taken into account the fact that the plaintiff’s mother may be required to give evidence twice, but there are real benefits to her giving her account of the events of 4 November 2017 as soon as possible. The age of the fourth defendant, and the signs of trauma she has experienced and continues to experience, is another factor of some significance to my determination.

11. I make the following orders:

12. The issue of liability is to be heard and determined separately in advance of the issue of quantum pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).

13. The parties are to bear their own costs of the motion.

14. Confirm the date of the next mention before the Registrar for directions on 24 July 2025.

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