Robinson v Vogelsang

Robinson v Vogelsang - [2015] NSWSC 1942 - NSWSC 2015 case summary — Zoe

Judgment

On the afternoon of 1 October 2009 the Plaintiff, Fiona Robinson, was seriously injured when she fell from the horse she was riding ("Danny") on a farm owned by the First Defendant, Peter Vogelsang, at Lot 545 Milang Road, Milang in South Australia ("Lot 545"). While the circumstances of her accident are in dispute it is common ground that prior to her fall the horse "pig-rooted", that is one or more of the back legs of the horse kicked out, and the horse then bucked at least once. It was also not in dispute that Ms Robinson was rendered a tetraplegic by the accident in that she suffered a complete paralysis of her legs and partial paralysis of her arms. At the commencement of final submissions, the Court was advised that all parties agreed that the quantum of Ms Robinson's damages was $6.5 million [1] .
Ms Robinson commenced proceedings in negligence against Mr Vogelsang and the second defendant, Ms Catherine Martin. Ms Martin was the owner of Danny and Mr Vogelsang's de facto partner. In turn both Mr Vogelsang and Ms Martin cross claimed against Allianz Australia Insurance Limited ("Allianz") and Ronald Haeusler. During the relevant period Allianz had issued a "Farm Pack" insurance policy in respect of Lot 545 as well as a "Classic Plus Home Policy" in respect of a nearby property known as Lot 95 Strathalbyn Road, Milang ("Lot 95") also owned by Mr Vogelsang. Pursuant to an "authorised representative agency agreement" with Allianz, Mr Haeusler arranged both policies.
By their cross claim against Allianz, Mr Vogelsang and Ms Martin contended that they are entitled to cover in respect of Ms Robinson's claim under one or both of the policies. In the event they are not entitled to cover they contended that Allianz is estopped from denying indemnity. Failing that, in their cross claim against Mr Haeusler they contended that if they are uninsured for any liability they have to Ms Robinson that is a result of Mr Haeusler's negligence or conduct contrary to s 1041H of the Corporations Act 2001 (Cth) or s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (the "ASIC Act"). Mr Haeusler also filed a cross claim seeking contribution or indemnity from Allianz.
In his final submissions Senior Counsel for Ms Robinson, Mr Cranitch SC, confirmed that no case was pressed against Mr Vogelsang but a case was maintained against Ms Martin. It follows that there will be a judgment in favour of Mr Vogelsang and that so much of the cross claims that sought recovery in respect of any liability he might have owed to Ms Robinson must be dismissed.
Further, for the reasons that follow, I reject Ms Robinson's claim in negligence against Ms Martin. The principal claim against Ms Martin was that she falsely advised Ms Robinson that Danny was of a gentle temperament. While it was common ground that she did advise Ms Robinson of that matter, that was not proven to be false. It was also contended on behalf of Ms Robinson that the paddock that was provided for her to ride Danny in was unsuitable, that Ms Martin negligently encouraged Ms Robinson to loosen the reins of Danny such that they ended up loose on the ground, and negligently provided a saddle that had only one girth strap. I am not satisfied, inter alia, that any or all of the supposed deficiencies in the paddock, the length of the reins held by Ms Robinson at the time of the accident or the use of one girth strap were causative of the accident.
Against the contingency that the matter is appealed, I have addressed Ms Martin's cross claims. I am not satisfied that she is entitled to indemnity under either of the two polices taken out by Mr Vogelsang. Further, for the reasons explained below, I am satisfied that the nature of the dealings between Mr Vogelsang and Mr Haeusler were such that Mr Haeusler was only requested to obtain the minimum level of cover necessary to satisfy the financiers who funded Mr Vogelsang's purchase of an additional paddock attached to Lot 545 and his purchase of Lot 95. If Mr Haeusler had given Mr Vogelsang the advice concerning the limitations on the cover it is alleged he should have given then Mr Vogelsang would not have effected different cover. This finding is fatal to the claims in estoppel against Allianz and the cross claim against Mr Haeusler.
The balance of the judgment explains the reasons for these conclusions.

[4]

The Accident

Many of the circumstances of Ms Robinson's accident are not in dispute. Some period prior to the accident Ms Robinson's mother, Debra Moore, and Ms Martin renewed an old friendship via the social media platform "Facebook". During the exchanges on Facebook Ms Martin mentioned that she owned a horse (Danny). Ms Martin had purchased Danny during August 2009.
At some point Ms Moore told Ms Martin that she intended to visit Adelaide to either see or stay with Ms Moore's son. Ms Moore and Ms Robinson flew from Sydney to Adelaide on 29 September 2009 and were met by Ms Martin. They stayed with Ms Martin at Lot 545 for the next two nights. Mr Vogelsang was away working as a truck driver. Whether or not Ms Martin encouraged Ms Robinson to ride Danny during her stay was disputed. However it is not disputed that she repeatedly described "Danny" as a "gentleman" which, according to the plaintiff's expert, Mr Doughty, was a commonly accepted description of a horse that has "a very even temperament [and] is very predictable".
On the afternoon of 1 October 2009 Ms Martin placed a blanket and saddle on Danny in anticipation of his being ridden in a paddock adjacent to the house on Lot 545. Ms Martin placed a "Western style" saddle on Danny. The characteristics of a western style saddle compared to an English style saddle are described below. This saddle had one strap around Danny's girth. Ms Robinson had previous experience in riding a horse but had not used a western style saddle. Either before she placed the saddle on Danny or after, Ms Martin "lunged" Danny, that is she exercised him on the end of a long lead by encouraging him to move in circles. Thereafter with the assistance of at least her mother Ms Robinson mounted the horse. Either shortly after mounting the horse or after she had undertaken one and half laps around the paddock Danny pig-rooted then bucked either once or twice. Ms Robinson came off the horse and was seriously injured.
By far the most significant factual dispute was whether, subsequent to the accident, Ms Martin admitted that she had been "dumped" by Danny prior to Ms Robinson's accident. In addition there was a dispute about a number of matters the most significant of which were (i) whether during their stay Ms Martin actively or indeed aggressively encouraged Ms Robinson to ride Danny, (ii) whether Ms Robinson's fall was immediate or only occurred after she undertook over one and half laps, (iii) how far Ms Robinson let the reins out on Danny during the period that she rode Danny, and whether that was a result of Ms Martin's encouragement and (iv) whether Danny bucked once or twice before Ms Robinson fell.
To resolve those disputes it is necessary to set out the evidence of the three witnesses to the accident, namely Ms Robinson, Ms Moore and Ms Martin, in detail as well as refer to part of Mr Vogelsang's evidence. However at the outset I note three matters.
The first is that, leaving aside any fact necessary to establish a pleaded defence, Ms Robinson bears the onus of proof of any contested fact on the balance of probabilities. While that is an undemanding standard only requiring a "preponderance" of evidence, the Court must nevertheless "feel an actual persuasion" of the relevant fact's occurrence before it is established, and that cannot be reached by a "mere mechanical comparison of probabilities [independent] of any belief in its reality" (Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361 per Dixon J).
Second, in resolving the contest between the witnesses I record that I did not form an adverse opinion of the honesty or creditability of any of the witnesses. I gained the impression that each of Ms Robinson, Ms Moore and Ms Martin were doing the best they could to describe what happened, although the passage of time, the traumatic nature of the accident, its terrible consequences and the common tendency to recount such events with a view to being vindicated has affected those recollections. Ultimately, in resolving the factual disputes I have had less regard to the "appearances of witnesses and [instead have sought to] reason to [my] conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events" (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] per Gleeson CJ, Gummow and Kirby JJ).
Third, one complicating factor in resolving the competing evidence is that some aspects of Ms Martin's version of events were not taken up in cross-examination with Ms Robinson (and to a lesser extent Ms Moore).
This came to a head when, during the evidence in chief of Ms Martin, Mr Cranitch SC, objected to evidence being led from her that had not been put to Ms Robinson in cross-examination. I allowed the evidence to be led. The so called rule in Browne v Dunn (1893) 6 R 67 which requires a cross examiner to put to an opponent's witness the matters in respect of or by reason of which it is intended to contradict that witness' evidence has been described as a "rule of professional practice" (R v Birks (1990) 19 NSWLR 677 at 686E). It is certainly not a rule of exclusion as provided for in the Evidence Act 1995. Instead, the consequences of a failure to observe it will vary depending on the circumstances of the case but they must relate to the "central object of the rule, which is to secure fairness" (Birks at 689G). At the point at which evidence is being received it could only be in a most exceptional case that fairness would require that a party be prevented from giving evidence concerning the circumstances of the very event that is said to make them liable. Post the Evidence Act 1995 that could only be by the exercise of the discretion conferred by s 135 thereof. In this case no such circumstances were apparent or demonstrated. In particular the Court was advised that the non-observance of Browne v Dunn was at least in part due to the fact that Counsel for Mr Vogelsang and Ms Martin had come into the matter on short notice. Further, any prejudice could have been rectified by re-calling Ms Robinson for further cross-examination (even though that would require the Court to reassemble at her home).
In that regard, upon the completion of Ms Martin's evidence, her Counsel reapplied to have Ms Robinson re-called. Mr Cranitch SC's response to that application was that, the Court having overruled his objection to reception of such of Ms Martin's evidence that was led but not put, he accepted that it was not necessary to re-call Ms Robinson to put the further details to her to avoid a submission by him that Ms Martin's evidence should not be accepted because Ms Robinson did not have the opportunity to address those details, provided the parties accepted that Ms Robinson (and her mother) would deny them. This was accepted by the other parties. It follows that a resolution of the competing versions is not to be affected by the failure to put various matters testified to by Ms Martin to Ms Robinson (or Ms Moore). However there remains for consideration the suggestion of recent invention that was put to Ms Martin during her cross-examination by Mr Cranitch SC and the fact that certain matters were put to Ms Robinson that were inconsistent with Ms Martin's evidence. There was an attempt to rebut the former by the tender in re-examination of a written statement of Ms Martin prepared some three or four months after the accident. [2] I address these aspects of her evidence below at [56ff].

[5]

Ms Robinson's Evidence

The evidence of Ms Robinson was taken at a bedside sitting at her home in Berala on Wednesday, 4 November 2015. Given the agreement that was reached over quantum it is only necessary to address so much of it as concerned liability.
In her written statement dated 29 October 2015 Ms Robinson described her experience with horse riding. She said she first sat on a horse when she was two years old but did not start riding horses until she was five. In primary school she attended "Pony Club" and attended gymkhanas. She owned her first horse when she was 13 and her second horse when she was 17. Two years later (in 1994) she commenced working at a riding school on weekends. She led riders but did not train them to ride. In cross-examination she stated that on these rides she raised the horse to a "trot or canter". In 1997 she bought her third horse. In October 1999 she moved to Adelaide and left her horse behind in Sydney. She said she did not ride again until the accident.
In September 2009 Ms Robinson's mother invited her to travel to South Australia to visit her brother. She recalled that her mother mentioned that they would stay with Ms Martin whom she was told lived on a farm outside of Adelaide. Her mother passed on an offer from Ms Martin for her to ride her horse. She recalled speaking to Ms Martin on the telephone and her stating "I was speaking to your mum and you can ride on my horse" and that the horse was "a real gentleman". In her oral evidence Ms Robinson confirmed that it was generally understood amongst horse riders and trainers that such a description meant the horse was "very calm".
Ms Robinson said that she and her mother arrived in Adelaide on the afternoon of 29 September 2009 and they travelled to Lot 545 that afternoon. Mr Vogelsang was not home. The next morning Ms Martin showed Danny to Ms Robinson and her mother. She said that "[Danny] is a very sensible and well educated horse" and again described Danny as a "real gentleman". After that the three of them went to a race track. On the next morning Ms Robinson's brother rang and stated that he would come and collect them. She recalled that she and Ms Martin went outside to see Danny. Ms Martin "let him out to walk around the house and eat grass".
Ms Robinson stated that, in the early afternoon of 1 October 2009, Ms Robinson was inside the house at Lot 545 when she saw Ms Martin placing a "western" style saddle on Danny. Ms Robinson said that she was not familiar with a western saddle but instead rode "all purpose saddles" or stock saddles. She said she was called outside by Ms Martin who repeated that the horse was "well educated" and also stated that he was "14 years old". In oral evidence Ms Robinson said that Ms Martin said to her "[y]ou need to ride the horse before you go". She then checked the horse. She recalls her mother stating to her "you must wear a helmet" but she replied "why, Vanessa said he was well educated and an old gentleman". Nevertheless her mother found a helmet and insisted she wear it. She did not have spurs or a whip. She recalls that Ms Martin put a blanket on the horse and her mother "did up the girth". She recalled that her mother "stretched his legs and made sure his legs and girth [were] not being pinched". Ms Martin made reference to using "spurs on him". Ms Robinson replied "Why do you want to use spurs, you just need to squeeze with your legs". She observed that it was difficult to place the "bit" in Danny's mouth.
Ms Robinson also stated that Ms Martin and Ms Moore helped Ms Robinson mount the horse. Ms Martin said "remember you need to ride with a long [rein]". She recalled that Ms Martin kept making the reins "longer and longer". She recalls that she "had these long reins" and Ms Martin said "longer". Her mother said "how much [bloody] longer do you want them, he will trip over them".
Ms Robinson said she was not comfortable in the western saddle as it was "a real thin saddle, and I felt like I was bareback". In oral evidence she said that she told Ms Martin that the saddle "isn't comfortable". She recalled that Ms Martin said "you will love him Fiona, he is a real gentleman" and that "[h]e is so well educated I didn't think a helmet is necessary". The balance of that part of Ms Robinson's statement concerning the circumstances of the accident stated as follows: "The horse did not buck there and then. Once I was on, mum and Vanessa stepped to the side and I moved the horse forward. He went into a jig jog I said 'woah' and he went back to a walk straight away. He then pig-rooted. I've been on a horse that pig-roots, it's like a little kick out to the side. I started pulling up the reins and when he came down from the pig-root he bucked. I said 'geez he has a powerful buck, his legs were right up in the air'. I was still trying to gather the [reins] up so I could pull his head up, but the second buck I came off. I knew then the horse's head was too far down, further down than I would normally let it be. All I was thinking was that I needed to try and get his head up. … When he pig-rooted I immediately responded by trying to shorten the reins. Then he first bucked as I was leaning forward trying to shorten the reins. In the western saddle I felt like I was riding bareback. In an [all purpose] saddle I can dig my knees in, but in the western saddle it was completely flat. On the first buck I was moving forward in the saddle making me less stable for the second buck. My feet were still in the stirrups after the first buck. I tried to hold the saddle pommel as I tried to shorten the reins. I hit the ground once and then hit it again. At that moment I knew I had injured myself. I could not get up off the ground." (emphasis added)
In her oral evidence Ms Robinson stated that the first buck of the horse pushed her forward and that she was trying to pull up the reins when the second buck occurred. She said that when the reins were long she did not have control over the horse's head and when she had previously been bucked by a horse her reins were shorter and she had more control.
Ms Robinson was air lifted to the Royal Adelaide Hospital and operated upon. In her statement she said that approximately two weeks after the accident Ms Martin came to see her in hospital. Ms Robinson stated that she said to Ms Martin: "He had a powerful buck." Ms Robinson states that Ms Martin replied: "Tell me about it, he bucked me once before." In her oral evidence in chief Ms Robinson stated that Ms Martin used the word "dumped" rather than bucked.
Pursuant to s 64(3) of the Evidence Act 1995 there were also tendered some notes of a discussion on 14 May 2010 between Ms Robinson and Mr Doughty. Those notes include the following: "Prior to the accident Danny was described as a well mannered gentleman. After accident [Ms Martin] confided to [Ms Robinson] that I know how powerful his buck is - he has dumped me before'. [Ms Robinson] rugged and groomed Danny during her visit and he was well behaved while being handled on the ground. [Ms Robinson] noted that [Ms Martin] was not confident when bridling the horse, hesitant, [Ms Martin] maybe a little scared of Danny. Area to ride horse was hard ground, bare dirt, patchy uneven grass, wire fences, horse shelter in area ... Danny was saddled with a western saddle and a simple tom thumb snaffle bridle with very long western style split reins, longer than [Ms Robinson] had ever used. [Ms Robinson] requested an all purpose saddle as that was what she was familiar with."
It can be seen that Ms Robinson attributed the word "dumped" to Ms Martin as far back as May 2010. In those circumstances I do not place any significance on her correction in oral evidence of the word "bucked" in her statement dated 29 October 2015 with the word "dumped". Otherwise, neither in her statement dated 29 October 2015 or in her oral evidence did Ms Robinson repeat the assertion in the above notes that she requested an all purpose saddle from Ms Martin.
In cross-examination by Counsel for Mr Vogelsang and Ms Martin, Mr Lawson, Ms Robinson agreed that Ms Martin placed a lunge rein on Danny and led him around the paddock. Counsel also put to Ms Robinson but she denied, inter alia, that she wanted to ride Danny and said so to Ms Martin on a number of occasions, that she told Ms Martin that she was an experienced horse rider and maintained that experience, that it was Ms Martin as opposed to her mother who buckled the belt around Danny's girth and insisted on her wearing a safety hat, that she did a complete lap of the paddock before she encountered any difficulties with the horse, that between the horse pig-rooting and bucking Ms Martin told her to gather in the horse's reins and that Ms Martin did not say the words Ms Robinson attributed to her when Ms Robinson was in hospital.
It is also necessary to note three other matters that were put to Ms Robinson and denied as they were either not testified to by Ms Martin or inconsistent with her evidence. First it was put to Ms Robinson that Ms Martin said "Do you want me to tie the long reins together" and Ms Robinson said "No I'm fine'. No evidence to that effect was given by Ms Martin. Second it was put to Ms Robinson that Ms Martin offered to keep the lunge rope on Danny while Ms Robinson rode him if she wanted and she said "No I'm fine". No evidence to that effect was given by Ms Martin. Third it was put to Ms Robinson that "it was, in fact, only [Ms Robinson's mother] that helped [her mount] Danny". In fact Ms Martin gave evidence that she assisted Ms Moore and placed Ms Robinson's foot in the stirrup.
Under cross-examination by Senior Counsel for Mr Haeusler, Mr Rewell SC, Ms Robinson agreed, inter alia, that this was the first occasion on which she had ridden in a western style saddle, that even though according to her Ms Martin was insistent upon her riding she could have refused although she said she "didn't want to upset her ..." and that she never said "I don't feel confident, I am not feeling secure" although that concession is difficult to reconcile with that part of her evidence noted in [24] and Ms Moore's evidence noted in [33].

[6]

Ms Moore

Two statements from Ms Moore were tendered. In her statement dated 25 June 2015 (her "first statement"), Ms Moore briefly described the background to her stay with Ms Martin in terms consistent with Ms Robinson's evidence. She recalled that, prior to travelling to South Australia, Ms Martin texted her "a number of times about her quarter horse" which Ms Martin referred to as "old Danny". She recalled that Ms Martin stated on a number of occasions, "You have got to ride Danny. He is an absolute gentleman. He is beautiful".
Ms Moore recalled that on the afternoon they were due to depart she said to Ms Martin "We should start packing and get ready to go" and Ms Martin replied "You have to ride Danny before you go". She recalled that Ms Martin then put a long rein on Danny, "lunged" him and placed a western saddle on his back. She recalled Ms Martin said "[c]ome on Fiona, come on and have a ride on Danny". The balance of her first statement reads as follows: "Just as [Ms Robinson] was to get on, I said 'Fiona, put on a stack hat'. I asked [Ms Martin] 'Do you have one?' She said 'Yes, it is in the ute'. I went and got the stack hat and gave it to Fiona. I did it up for her. [Ms Robinson] got on the horse. [Ms Martin] said, 'Give him more rein'. The reins were very long. I said to [Ms Martin], 'How much more bloody rein does he need'. She said, 'Trot him up. You don't need to kick him, just ask him'. It was a slow trot. Fiona pulled him back into a walk. She said, 'I want to get off, I don't feel right on him'. Then the horse pig-rooted, and then put his head right down between his front legs and threw his whole body in the air. He did this twice. Fiona was flung off on the second buck. Fiona was thrown through the air and landed hard with a bounce to the ground. Fiona cried mummy repeatedly, then cried 'I can't feel my legs'."
In her first statement, Ms Moore described her daughter's transfer to hospital and subsequent stay. She stated that after the accident on the way to the hospital Ms Moore said to her "I have only had Danny for 8 weeks" and "He can pig-root. I only rode him once and I fell off when I rode him".
In her statement dated 29 October 2015 (her "second statement") Ms Moore expanded on her first statement and, in some respects, altered it. Four matters should be noted. First, she added that Ms Martin emphasised that Danny was "well educated and a gentleman" and also referred to him as "an absolute gentleman". Second she recounted a debate with Ms Martin at the time the saddle was placed on Danny as to whether Ms Martin had or had not described him as "girthy". Third, she said that when Ms Robinson mounted the horse it started "jig jogging" which in oral evidence she explained was a "half trot - half walk".
Fourth, in relation to the statement noted in [34] above Ms Moore stated: "In conversation with [Ms Martin] she said that Danny had dumped her. This took place in the context of a conversation where she told me he had shied at a pig when she took him out. When we were talking about what had happened to [Ms Robinson] she initially used the word 'pig-rooting'. I said to her that 'no, he had bucked'."
In cross-examination by Senior Counsel for Allianz, Mr Cavanagh SC, Ms Moore agreed that this discussion with Ms Martin about "pig-rooting" took place in a discussion about what happened to Ms Robinson and was not a discussion about previous instances of "pig-rooting" by Danny. Ms Moore reiterated that Ms Martin said that she had only ridden the horse once before. Ms Moore insisted that she had a clear recollection of the conversation even though she was shocked and stunned at her daughter's condition.
Under cross-examination by Mr Lawson it was put to her, but she denied, that her daughter wished to ride Danny ("never"), that her daughter and Danny performed two laps of the paddock, that Ms Martin never shouted "give [him] more rein", that at one point Ms Martin told her daughter to tighten her reins, that Ms Martin obtained the protective hat and that Ms Martin did not say the words attributed to her. Under cross-examination by Mr Rewell SC she insisted that Ms Martin lunged Danny before placing a saddle on him and not "the other way around".

[7]

Ms Martin

Ms Martin said that she first met Mr Vogelsang in approximately 2005 and moved into Lot 545 approximately 18 months later. She stated that she first developed an interest in horse riding in 1964 and had maintained that interest since then. Over time she had owned approximately a "dozen, probably more" horses of different sizes and temperaments. However she suffered a stroke around the time of her 30th birthday (in 1984) which affected her riding ability. As a consequence she needed "a very quiet gentle animal ... [as] I just didn't want to be constantly falling off on one side".
Ms Martin said that prior to buying Danny she had "been searching for some time for a suitable horse". She discovered Danny was on sale on the internet and bought him from a woman in Victoria on or about 7 August 2009. Prior to buying Danny Ms Martin travelled to Victoria and met the owner. She recalled asking what the "history of the horse" was and was told that he was "an educated animal", who had been "ridden … quite regularly" including by the owner's ten year old daughter "at shows" [3] . She also recalled being told that the horse was "fully Western trained" [4] . She said she rode Danny for "approximately 20 minutes, half an hour" before she decided to buy him. She described Danny as "a little too quiet" but "beautifully trained".
Ms Martin next rode Danny for between 45 minutes and an hour on 8 August 2009 at her sister's property en route back to Adelaide. On that occasion, she found Danny to be "very, very quiet ... extremely quiet". Film footage of her riding on that occasion was tendered [5] .
Ms Martin said she arrived back at her home with Mr Vogelsang on or around 10 August 2009 and that between that time and the end of September 2009 she rode Danny between 40 and 45 times. She stated that she rode Danny with the same saddle and the same reins and bit that Ms Robinson used on 1 October 2009. To her observation Danny was "well trained" to a "good standard", and had an "amazing" temperament. She said that he did not pig-root and he did not buck or "dump" her. Ms Martin denied that there was ever any incident in which Danny shied away from a pig and said that she had "never seen any wild pigs". She said that prior to the accident she observed Mr Vogelsang ride Danny and they supervised his grandchildren riding Danny (see [65]).
Ms Martin denied that after the accident she stated that she had previously been "dumped" or "bucked" by Danny. She said that the only incident she experienced with Danny was two weeks after the accident where the collection of stones she assembled to stand on while mounting the horse gave way and she fell over.
Ms Martin said that in 2009 she resumed contact with Ms Moore on "Facebook". Ms Moore told Ms Martin that she was coming to South Australia to visit her son. Ms Martin agreed to collect her from the airport and take her to her son's house. Ms Martin said that when Ms Moore and Ms Robinson arrived they attempted to contact Ms Moore's son but were unsuccessful and she agreed to let them stay at Lot 545. Contrary to Ms Moore and Ms Robinson's evidence, Ms Martin said that it was Ms Robinson who expressed an interest in riding Danny. She denied "trying to force" or actively encourage Ms Robinson to ride him.
Ms Martin recalled that, prior to the accident, Ms Robinson stated that she "always love[d] to ride", that she had "kept up with her riding" and she had owned "three horses" over time. Ms Martin said that she formed the opinion that Ms Robinson was "a reasonably competent rider, certainly not a beginner" and that she and Danny "would be quite suitable to each other".
Ms Martin said that Ms Robinson and Ms Moore were due to leave on the afternoon of 1 October 2009. She recalled that Ms Robinson was playing electronic games and watching television inside the homestead at Lot 545. She recalled stating to Ms Robinson "well it's only a short time before you leave, if you want to ride, let me know, and I'll get things ready" and Ms Robinson replied "Great, let's get it going".
Ms Martin stated that she prepared Danny by brushing and saddling him. She placed the bridle on Danny. She recalled that she told Ms Robinson to put a helmet and body armour on and recalled that Ms Robinson did so. Ms Martin said that she then "lunged" the horse for "between four and six minutes each way". She described its purpose as being to "[loosen] the muscles" of the horse and "ensure ... all of his gear is fitting properly". After lunging the horse she attached the reins to the bridle. Ms Martin then placed the whip and the lunge rope over a nearby fence and returned to find Ms Moore assisting Ms Robinson to mount the horse. Ms Martin twisted the stirrup around for Ms Robinson to put her foot in.
Ms Martin recalled that Ms Robinson was holding Danny's reins "fairly tightly like an English style horse" and that she said to her "Just release the reins a little bit. He's Western trained. Don't put any pressure on his mouth. Let him have a loose-ish rein".
Ms Martin recalled that Ms Robinson commenced riding Danny around the paddock in a counter-clockwise direction. Ms Martin was in the middle of the circle created by the horse's path. Ms Robinson completed "the first circle [of the track] quite comfortably". On the second lap, Ms Martin observed that Ms Robinson was "starting to lose her reins". Ms Martin said to her "just bring your reins up a tad". Ms Martin denied directing Ms Robinson to make her reins "longer", except "at the beginning of her ride because she had [Danny] tucked right up, as you would an English horse …" [6]
Ms Martin recalled that Ms Robinson "lost a little bit of contact and [then] the horse pig-rooted". Ms Martin described what happened as follows [7] : "There was [a] little break in the stride, she continued to move on, but she had now begun to lose her reins, and I called out to her, 'They're too long, pick them up, pick them up', because one rein in particular, the inside rein, her left hand had drooped quite low, more so than the outside one ... ... … she'd leaned forward to pick up her rein, and he just went straight up in the air, like a jack in the box, and she was leaning forward. So when the horse went up in the air, she was immediately dislodged, and to his right away from me, at about 1 o'clock angle to his full body, and she went through the air like Superman, she just came straight up and straight down." In cross-examination Ms Martin stated just after the horse pig-rooted Ms Robinson said: "I'm not comfortable".
As an attack on Ms Martin's creditability is at the heart of the Plaintiffs case, it is necessary to note five matters that were either raised with her during her cross-examination by Mr Cranitch SC or were the focus of his submissions.
First, Ms Martin was cross-examined about whether she advised Ms Robinson to let the reins go or pull them in. Ms Martin said that "initially I asked her to loosen her rein[s] because she had him too tight" but later claimed she told her to "pick up your reins". The timing of this was clarified as follows: "Q. When did you start calling for her to pick up the reins, before the pig-root or after the pig-root? A. There were two instances. There was one instance and she picked up her reins without a problem. The second instance which was after the horse had pig-rooted she lost her reins, went forward."
This answer was consistent with her evidence in chief. However the concession that initially she asked her to loosen the reins was inconsistent with the suggestion made to Ms Moore that Ms Martin never shouted "give [him] more rein" (see [38]).
Second, in his written submissions Mr Cranitch SC referred to an answer given by Ms Martin in which she stated that she wrote down the circumstances of the accident as she remembered them and put them together in the statement that (presumably) became exhibit 10. When asked why it was prepared (ie was it privileged) Ms Martin responded that "[t]his was the most awful accident that had happened. It was just a disaster. My memory - unless I specifically concentrate on something, it's gone. I'm not interested" [8] . It was contended that this was an admission that her recollection was generally poor.
Having heard this answer I do not attribute any significance to it. Clearly this event was traumatic. The effect of Ms Martin's evidence is that this was an event that she did "specifically concentrate" upon. Generally I would regard Ms Martin as more likely to have a better recollection of events than Ms Robinson or her mother. Clearly Ms Robinson was severely injured in the accident and it would have been extremely distressing for Ms Moore to witness it. Both had to endure its consequences.
Third, at this point it is appropriate to return to the problems that arose in relation to the application of Browne v Dunn to Ms Martin's evidence. I have described above the approach that was ultimately adopted in relation to the difficulty that arose because a number of aspects of Ms Martin's evidence were not expressly raised with Ms Robinson. However this still leaves the suggestion of recent invention and the related difficulty that arose because some matters were expressly put to Ms Robinson that were inconsistent with Ms Martin's evidence (see [17] and [30]).
In relation to the former, Ms Martin's written statement tendered in re-examination was consistent with most of her evidence. It included statements about the purchase of Danny and experiences in riding him that were consistent with [40] to [42], a claim that she had insisted upon Ms Robinson wearing a helmet, referred to her and Danny completing one full lap and the accident occurring during the second lap when the horse pig-rooted and bucked once. The statement does not address whether or not Ms Martin gave advice to Ms Robinson about the length of the reins.
In relation to the latter the matters that were put that were inconsistent with her evidence are described at [30] and [53]. Of those matters only the first and third matters in [30] are of any significance as they concern the length of the reins. The end result is that at least on that issue I am cautious about accepting Ms Martin's evidence.
Further, in his written submissions Mr Cranitch SC pointed to an instance in Ms Martin's cross-examination by him when Ms Martin rejected the suggestion that she insisted upon Ms Robinson riding Danny and asserted that she "offered to ride him first" before she lunged him. As this detail was not referred to in Ms Martin's statement or her oral evidence in chief, it was submitted that this assertion was indicative of "invention" on her part. There is some force in this but I do not attribute to it the significance that the submissions asserted. An offer by Ms Martin to ride the horse only has great significance if one first accepts the premise of the plaintiff's case that Ms Martin knew the horse was prone to be unpredictable and was scared of riding it herself but nevertheless was urging that upon Ms Robinson. If one does not accept that premise then an offer by Ms Martin to ride the horse as a form of demonstration to Ms Robinson is relatively inconsequential. In assessing the reliability of Ms Martin's evidence I have not derived any assistance from omission of this fact from her statement or evidence in chief.
Fourth, it was submitted that Ms Martin had only "provided very vague evidence as to the enquiries [she] made of the former owner". I have described this evidence at [40] above. I did not consider this evidence to be vague (nor as the submission may be implying evasive).
Fifth, in cross-examination Mr Cranitch SC raised a number of matters with Ms Martin said to be supportive of the case theory that Ms Martin was aware of the potential for Danny to pig-root or buck prior to Ms Robinson's ride. He asked Ms Martin about the fact that she was not wearing a helmet in the video taken at her sister's place and contrasted that with her insistence that Ms Robinson wore a helmet. Mr Cranitch SC suggested that Ms Martin insisted on Ms Robinson wearing a helmet because she had previously been dumped. Ms Martin stated that she rode without a helmet at her sister's place because no helmet was available. Ms Martin denied the suggestion that she called out to Ms Robinson to pick up the reins after the horse pig-rooted because she "knew this horse was going to buck as soon as he started pig-rooting". At one point Ms Martin was asked whether she arranged for a chiropractor to inspect Danny's back. She stated that a trainer inspected him after the accident and "could find nothing wrong with him".
The crux of the Plaintiff's case was put to Ms Martin as follows [9] : "Q. You knew he wasn't a gentleman which is why you wanted [Ms Robinson] to ride him to see whether or not it was you or the horse that was the problem? A. Not at all." Q ... You were keen to have [Ms Robinson] ride this horse because you had been bucked off some time before yourself, hadn't you? A. No, that's a complete falsehood. I have never been bucked off of that horse. Q. It was your insistence, at your insistence that she rode the horse not because she exhibited any burning desire to do so? A. Not at all. I was quite happy to share the horse. Q. You knew full well that this horse was unpredictable? A. No. Q. You knew it so well that you insisted … that she have not just a helmet but body armour before she got on? A. No, that is standard normal practice. Q. You knew it so well that as soon as the horse began to misbehave you thought my God he's doing it again, get the reins up and get control of him? A. Not at all. Q. Having encouraged her to loosen the reins all the way through? A. I had never seen that horse misbehave."

[9]

Findings on disputed circumstances of the accident

As noted, the most significant contentious fact was whether Ms Martin had previously been "dumped" by Danny prior to Ms Robinson's accident or in the words of the above extract whether Ms Martin was aware that the "horse was unpredictable" (see [62]). The only evidence said to support that was the statements attributed to Ms Martin by Ms Robinson and Ms Moore (at [26] and [36] respectively).
Even if I accepted that the statement attributed by Ms Moore to Ms Martin was made, it would not be of much assistance to the plaintiff's case. Ms Moore accepted that the reference to "pig-rooting" in that conversation related to Ms Robinson's accident and not some prior incident. The circumstance that Danny may have "shied away from a pig" would not appear to reveal much about his temperament without knowing more details about the alleged incident, such as the size of the pig, the actions of the pig and the terrain. In any event I am not satisfied that any such conversation occurred. The changes in the conversation between Ms Moore's first and second statements are significant. It is difficult to see how Ms Moore would not recall a reference to shying from a pig at the time of her first statement. I suspect it more likely that there was a discussion about pig-rooting by Danny at the time of the accident as opposed to approaches by wild pigs. Although I have some doubts about Mr Vogelsang's reliability as a witness in relation to his dealings with Mr Haeusler, I accept his evidence that there were no pigs on his farm and no wild pigs in this area. I also accept Ms Martin's evidence that she had never seen any wild pigs.
Significantly with both versions Ms Moore attributed to Ms Martin the statement that she had only ridden Danny "once before". However there is video evidence of her riding Danny at her sister's place with no apparent difficulty. It strikes me as inherently unlikely that Ms Martin only rode Danny on that occassion and equally unlikely that she would say that after the accident. I do not accept either matter.
The words attributed by Ms Robinson to Ms Martin after the accident as set out in [26] above are of potentially great significance to her case. It was conceded by the defendants and the cross defendants that if it was accepted that they were uttered and reflected the truth then they would invalidate Ms Martin's assurances about Danny's temperament, and those assurances would constitute negligence. However, and even though I have some misgivings about some details of Ms Martin's evidence, I am not satisfied she said those words to Ms Robinson after the accident. To the contrary I accept that her assurances to Ms Robinson about Danny's temperament were in accordance with her experience and observations of Danny and also the observations of Mr Vogelsang.
The powerful submission put by Mr Lawson (and supported by Mr Cavanagh SC and Mr Rewell SC) in relation to this part of the case was to rhetorically ask why Ms Martin would mislead Ms Robinson as to the nature and temperament of Danny in an effort to induce her to ride him? The extract from the cross-examination of Ms Martin set out above at [62] sought to meet this contention by suggesting that in encouraging Ms Robinson to ride Danny and reassuring her that he was a "gentleman" Ms Martin wanted to find out if she "or the horse … was the problem". If true, such an approach was cynical and dishonest. Conduct of that kind is not unknown to the law but in this context it strikes me as very unlikely to have represented Ms Martin's thought processes. Further, as submitted by Mr Lawson, what is especially unlikely is that, if Ms Martin embarked on such a cynical and dishonest strategy, she would then supposedly make an admission revealing it after it had led to such disastrous consequences.
I do not accept that Ms Martin said the words attributed to her. As stated there are some details of Ms Martin's version of the accident which I am cautious in adopting, but I am satisfied of the reliability of her description of the events surrounding the purchase of Danny and her experiences in riding him. It is one thing to be uncertain about all the details of a short ride that led to an accident and another to misstate one's experiences with a horse over a six week period. Further, Ms Martin's evidence on this is confirmed by Mr Vogelsang's evidence concerning his observations of Danny and experience with placing his grandchildren on Danny to ride which I accept.
I noted above the points made in the cross-examination of Ms Martin. I did not find them persuasive. I accept Ms Martin's responses. Further in written submissions it was also contended that her behaviour in riding Danny within 9 or 10 days after the accident was inconsistent with her evidence that she would only ride a horse that was of a gentle disposition. However this submission proves too much. If Ms Martin misled Ms Robinson into riding Danny "to see whether or not it was you or the horse that was the problem" then she learnt the answer to that question from Ms Robinson's fall yet kept riding.
As noted there was a dispute about whether during her stay Ms Martin actively or indeed aggressively encouraged Ms Robinson to ride Danny. In light of the finding that I have just made, both the significance of this dispute and the motive for Ms Martin to so act falls away. In the end result I am not satisfied that Ms Martin pushed or cajoled Ms Robinson to ride Danny. I accept that she encouraged Ms Robinson to ride Danny if she wished perhaps so he could be exercised but only in the belief that he was a "gentleman". Ms Robinson was clearly able to refuse to ride the horse if she wanted. Further this discussion occurred in the context of Ms Robinson having the experience of riding horses described in [19], albeit not recently.
I accept Ms Martin's evidence that Ms Robinson and Danny undertook one lap of the paddock and had mostly completed the second lap when the accident occurred. Ms Martin has been consistent in stating that. Both Ms Robinson and Ms Moore did not accept that. They gave a description of the accident suggestive of it occurring almost immediately after Ms Robinson mounted the horse. However they each referred to the horse travelling some distance before the horse pig-rooted and, as noted, of the three witnesses, I expect that Ms Martin has the better recollection of the accident.
Another matter in dispute was the extent to which Ms Robinson let the reins out on Danny prior to the fall and whether that was a result of Ms Martin's encouragement. I have already described the basis for exercising caution in accepting Ms Martin's evidence on this topic. I accept that, just prior to and shortly after Ms Robinson mounted Danny, Ms Martin made reference to loosening the reins. This accords with the probabilities in that, to Ms Martin's knowledge, with a western trained horse there is a lesser level of reliance on the use of reins as a means of control. However I do not accept that Ms Martin urged a loosening of the reins to the point that some part of them was loose on the ground. There was no rational reason for Ms Martin to advise Ms Robinson to keep the reins that loose. Consistent with my misgivings about this aspect of Ms Martin's evidence I am not satisfied that just prior to the horse pig-rooting or after it bucking she told Ms Robinson to shorten the reins.
It was unclear from the evidence whether Ms Robinson expressed a wish to get off Danny after she mounted him. Ms Robinson denied doing so although Ms Moore recalled her saying words to the effect that she wanted to "get off' prior to the horse pig-rooting. In light of Ms Martin's evidence noted at [50] I am satisfied that Ms Robinson said words to the effect that she was not comfortable after the horse pig-rooted however I am not satisfied she said anything to that effect at an earlier stage.
Finally I am unable to determine whether Danny bucked once or twice after he pig-rooted. Both Ms Robinson and Ms Martin were consistent and persistent in their respective recollections on that point. Equally, I am uncertain as to whether Ms Moore or Ms Martin insisted Ms Robinson wore a helmet.

[10]

Ms Robinson's Case against Ms Martin

It was common ground that, as all the events relevant to Ms Robinson's claim occurred in South Australia, the law of that State including the Civil Liability Act 1936 (SA) (the "CLA SA") governed the determination of whether Ms Martin was liable to her in negligence (CLA s 4(1); John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503).
With effect from 1 May 2004 the Wrongs Act 1936 (SA) was amended and renamed the Civil Liability Act 1936 by the Law Reform (Ipp Recommendations) Act 2004 (No 9 of 2004). Various sections were renumbered and there was included a number of provisions that either largely replicate or are similar to Part 1A of the Civil Liability Act 2002 (NSW) ("CLA NSW") (CLA SA; Part 6 and Part 7) and Part 2 of the CLA NSW (CLA SA; Part 8).
One of the renumbered provisions was former s 17A of the Wrongs Act which became s 18 of the CLA SA. It provides: "18 Liability for animals (1) Subject to this section, liability for injury, damage or loss caused by an animal shall be determined in accordance with the principles of the law of negligence. (2) In determining the standard of care to be exercised in relation to the keeping, management and control of an animal, a court shall take into account - (a) the nature and disposition of the animal (which shall be determined according to the facts of the particular case and not according to any legal categorisation); and (b) any other relevant matters. (3) It is not necessary for a person seeking damages for injury, damage or loss caused by an animal to establish prior knowledge on the part of any other person of a vicious, dangerous or mischievous propensity of the animal. (4) In any proceedings relating to injury, damage or loss caused by an animal, it shall not be a circumstance of excuse, mitigation or justification that the injury, damage or loss was caused by reason of the animal straying onto a public street or road. (5) In an action arising from injury, damage or loss caused by an animal to an employee, it shall not be presumed that the employee voluntarily assumed risks attendant upon his employment that may have arisen from working in proximity to animals. (6) A court in determining whether a reasonable standard of care was exercised in a particular case shall take into account measures taken - (a) for the custody and control of the animal; and (b) to warn against any vicious, dangerous or mischievous propensity that it might exhibit. (7) Notwithstanding subsection (6), the fact that in a particular case no measures were taken for the custody and control of an animal, or to warn against any vicious, dangerous or mischievous propensity that it might exhibit, does not necessarily show that a reasonable standard of care was not exercised. (8) Where a person incites, or knowingly permits, an animal to cause injury, damage or loss to another, he shall be liable in trespass for that injury, damage or loss. (9) Subject to subsection (10), this section operates to the exclusion of any other principles upon which liability for injury, damage or loss caused by an animal would, but for this subsection, be determined in tort. (10) This section- (a) does not affect an action in nuisance where an animal is the cause of, or involved in, the nuisance; and (b) does not derogate from any other statutory right or remedy; and (c) does not affect any cause of action that arose before the commencement of the Wrongs Act Amendment Act 1983."
This provision was inserted into the Wrongs Act by the Wrongs Act Amendment Act (No 2) 1983 (SA). In Le Poidevin Industries Pty Ltd v Roberts (1990) 11 MVR 570 Duggan J described it as abolishing the effect of the judgment in Searle v Wallbank [1947] AC 341 which held that an owner of land adjacent to a highway did not owe a duty of care to users of the highway to prevent his or her livestock from straying onto the road. The rule expressed in Searle v Wallbank was held to be part of the common law of Australia in State Government Insurance Commission (SA) v Trigwell [1979] HCA 40; 142 CLR 617.
There is no doubt that s 18 of the CLA SA forms part of the matrix of statutory provisions that this Court must apply in determining Ms Robinson's claim against Ms Martin. However Mr Cranitch SC contended that it is in effect a free standing provision that preserves the application of the common law "principles of the law of negligence" to any case involving liability for injury, damages or loss "caused by an animal" to the exclusion of the provisions regulating liability in negligence set out in Part 6 (and Part 7) of the CLA SA. The Court was advised that this issue had not yet arisen for determination by the Courts of South Australia.
I do not accept Mr Cranitch SC's submission. Both an amending Act and the Act that is amended "are to be read together as a combined statement of the will of the Legislature" (Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463). Subsection 18(1) of the CLA SA refers to the principles of the "law of negligence". It does not confine that phrase to the common law. Mr Cranitch SC placed particular emphasis on s 18(9) which excludes the operation of "other principles" but that only begs the question of what are the principles referred to in s 18(1). "Negligence" is defined by s 3(1) to mean a "failure to exercise reasonable care" and many of the provisions of Part 6 regulate its meaning. In my view a reading of the CLA SA as a whole compels the conclusion that the "principles of the law of negligence" referred to in s 18(1) include such explanation or modification of the common law principles as are found elsewhere in the CLA SA. Whether that includes every provision of Part 6 and Part 7 is not a matter that it is presently necessary to decide. It sufficies to state that it includes ss 31, 32, 34 and 35 which concern the standard of care, precautions against risk, causation and burden of proof in respect of causation respectively. They are the only provisions relevant to this matter. Although the amended defence pleaded that Ms Robinson confronted an "obvious risk" no submissions were advanced in support of that contention.
Three matters should be noted at this point.
First, as with the CLA NSW, central to the determination of the liability for failure to exercise reasonable care and skill under the CLA SA is the identification of the relevant risk of harm (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [59] per Gummow J; Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 at [102] per Leeming JA; "Uniting Church").
One of the principal difficulties with applying the CLA NSW and the CLA SA is determining the level of particularity that is employed to define the risk of harm. For a plaintiff a risk that is pitched too narrowly is less likely to be considered either "foreseeable" or "not insignificant" as required by ss 32(1)(a) and 32(1)(b) of the CLA SA. However if it overcomes that hurdle it might have better prospects of being addressed by a reasonable precaution (ss 32(1)(c) and 32(2)). The difficulties for a defendant mirror those of a plaintiff.
These issues were discussed by Leeming JA in Uniting Church at [100] to [129]. His Honour concluded that the risk "is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances" (at [118]) and accepted that in a given case there "may ... be a range of appropriate formulations of the generality of the risk of harm" (at [119]) (emphasis in original).
On the basis that his submission as to the proper construction of s 18 of the CLA SA was rejected, Mr Cranitch SC contended that the relevant risk of harm was the "likelihood of being thrown off a horse when the plaintiff was induced to ride it without being told of its propensity to buck and with inadequate controls of a proper saddle, bit, bridle and reins". The allegation of an improper bit was not pursued in final submissions. Otherwise this formulation of the risk of harm is far too specific. It introduces a consideration of the precautions necessary to avoid a risk of harm into the definition of the risk of harm. In any event the finding in [69] renders this formulation inapposite.
The defendants contended that the relevant risk of harm was that arising from the horse "behaving in an unexpected manner resulting in [Ms Robinson] falling and injuring herself". Allianz contended that the risk of harm was the "risk to the plaintiff of being bucked off the horse in the yard".
Given the findings that I have made, there is no difference in substance between these respective formulations. I am inclined to consider that Allianz's formulation is preferable as it embraces the circumstances of this accident. Irrespective of what is known about Danny, that risk was foreseeable and not insignificant (CLA SA; s 32(1)(a) and (b)) in that all parties proceeded on the basis that such a risk pertains with all horses.
Second, s 32(1)(c) of the CLA SA directs attention to the relevant "precautions" that it is contended should have been adopted to deal with the relevant risk of harm. In this case the precautions were identified in the particulars of negligence set out in the Further Amended Statement of Claim as follows: "A. Failure to disclose to the Plaintiff that the horse [Danny] had bucked the Second Defendant a short time prior to inviting the Plaintiff to ride the horse. B. Misrepresenting the horse [Danny] as a 'gentleman' in nature. C. Falsely assuring the Plaintiffs reservations about the horse and the fact that it was girthy by asserting that the horse was gentle in nature. D. Instructing the Plaintiff to ride with a long reign [sic] which diminished the control that could be exercised over the horse. E. Inviting the Plaintiff to mount the horse in a yard which was not suitably prepared. F. Knowing that the Plaintiffs recent lack of riding practice and experience failed to warn the Plaintiff. G. Not disclosing a complete history of the horse [Danny] and its behaviour prior to the Plaintiff mounting the horse. H. Not providing suitable safe equipment for the horse [Danny] to be ridden. I. … failing to respond to the Plaintiff's express concern of riding an unfamiliar horse that was trained in a fashion that the Plaintiff was not experienced."
Particulars (A), (B), (C) and (G) are all predicated on proof that Danny had, to the knowledge of Ms Martin, previously pig-rooted or bucked. It follows from the above findings that those particulars fall away. In oral submissions Mr Cranitch SC stated that, if that part of his client's case as concerned Danny's temperament was not accepted, he nevertheless pressed a case concerning the state of the paddock, the length of the reins, and the fact that the saddle had only one strap which he contended meant "there is a capacity for the back of the saddle to flip up and thereby further destabilise the plaintiff [10] . These correspond to particulars (D), (E) and (H) (to the extent that they refer to the saddle). In relation to particular (F) the matter which Ms Martin did not warn the plaintiff of was not specified, but presumably that concerns Danny's temperament. For the sake of completeness in relation to particular (I) that concern was only expressed after the horse pig-rooted. In light of the finding at [114] I am not satisfied that there is anything that could have been done after the horse pig-rooted to avoid the accident.
Third, causation is governed by s 34 of the CLA SA which provides: "34 - General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (Tactual causation'); and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability). (2) Where, however, a person (the 'plaintiff) has been negligently exposed to a similar risk of harm by a number of different persons (the 'defendants') and it is not possible to assign responsibility for causing the harm to any one or more of them - (a) the court may continue to apply the principle under which responsibility may be assigned to the defendants for causing the harm; but (b) the court should consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. (3) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
Subsections 34(1) and 34(3) are identical to subsections 5D(1) and 5D(4) of the CLA NSW respectively. The latter were construed in Wallace v Kam [2013] HCA 19; 250 CLR 375 ("Wallace"). It follows that the test posed by s 34(1)(a) of the CLA SA involves a strict application of the "but for" test which is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with [s 35] "(Wallace at [14]). This task eschews policy or value judgments (Wallace at [15]). In contrast, s 34(1)(b) requires a determination that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. This is an entirely normative assessment. In accordance with s 34(3), it requires "consideration by a court of whether or not, and if so why, responsibility for the harm should be imposed on the negligent party" (Wallace at [14]). No question of the operation of s 34(1)(b) arises in this case.

[11]

State of the paddock

Ms Robinson described the paddock as the size of a standard house block. She said that parts of the fencing were wooden and other parts were made of wire. The paddock included a shelter. Mr Doughty's notes recorded the following concerning the state of the paddock which, Ms Robinson adopted: "area to ride horse was hard ground, bare dirt, patchy uneven grass, wire fences, horse shelter in area".
Photographs of the paddock taken recently were tendered as exhibit 5. Those photographs showed a bare covering. Ms Martin said that, at the time of the accident, the grass was "very bare-ish" with a "few tufts". She said that there was no barbed wire fencing in the paddock and that the fencing shown in the photographs had deteriorated since the accident.
Mr Doughty has considerable expertise in the form of academic and practical qualifications in training horses, supervising horse riding and analysing horse behaviour. The bulk of his evidence was directed to the alleged misfeasance of Ms Martin in not disclosing Danny's true temperament. In light of the above findings, that aspect of his evidence has no present relevance. In relation to the state of the paddock, in his first report dated 14 May 2010 Mr Doughty stated: "[Ms Robinson] described the yard where [Ms Martin] had to ride the horse as uneven, patchy dirt and grass yard with a shelter and a wire fence. This type of yard is not safe to work any horse in for the welfare of the rider or the horse. A suitable yard would have a sand or similar surface, no obstacles within the yard and a solid fence construction of rails or similar to clearly define the boundary and minimise the chance of injury."
In his second report dated 28 August 2015 Mr Doughty stated: "The plaintiff described the area she was asked to ride the horse as being a paddock with a horse shelter/shed mostly hard exposed dirt with patches of grass and a wire fence. It is my experience and my opinion that horses are more likely to stay under control and behave in a more predictable manner if they are in a well defined and confined area. The risk of injury to horse and rider are significantly reduced if riders ride a horse in areas with solid rail fencing and on a surface that provides even footing, grip and gives eg 50mm deep sand or a consistent grass surface. The horse is more likely to balance well and stay calm and if the rider should hit the ground the impact on the softer surface significantly reduces the risk of injury to the rider."
In his oral evidence in chief Mr Doughty was taken to the photographs of the paddock that were tendered. He stated that there were "protruding rocks through the ground", "bare patches of dirt" and that "even though it is covered with barley grass it's still an inconsistent surface". Mr Doughty said that the fencing was "particularly unsafe for a riding situation" because parts of it were said to be barbed wire, there were "exposed steel spikes", there was "mesh fencing in some parts [and] no fencing in other parts" as well as obstacles and general rubbish and debris in the yard. He stated that the existence of "well fenced post and rail type fencing ... confines the horse's attitude" whereas it was his experience that when "riding horses in open spaces is [that] the horses tend to be more free moving and more active".
I cannot discern the existence of any barbed wire in the photographs that were tendered. In cross-examination Mr Doughty was shown a video of the paddock and could not identify any barbed wire. I do not accept there was any such wire in a dangerous position surrounding the relevant paddock.
No part of the evidence or submissions was directed towards considering matters such as the cost and practicality of rectifying the various deficiencies in the paddock to bring them up to a standard that Mr Doughty would consider acceptable. It follows that the only case that the plaintiff can put forward as a relevant "precaution" for the purposes of s 32 of the CLA SA is refusing to allow Ms Robinson to ride in the paddock on Danny.
In his cross-examination Mr Doughty was asked about the condition of trail rides which involve wide open spaces and uneven surfaces. He was asked: [11] "Q. Yet inexperienced riders are led into [the trail riding environment] every day of the week? A. Yes, on horses that are gentlemen."
This answer suggests that Mr Doughty's opinions concerning the unsuitability of the paddock only support a case that seeks to establish that Ms Martin was required to prevent Ms Robinson riding Danny in that paddock on the premise that he was not a gentleman. As stated that premise has not been made good.
In any event this part of the plaintiffs case fails on factual causation (CLA SA: s 34(1)(a)). Mr Doughty was asked as follows: [12] "Q. Incidentally, from the description of the accident you have had, it would be mere speculation to assert that the condition of this paddock had anything whatsoever to do with the occurrence of the accident, wouldn't it? A. It would be speculation, apart from the impact of the fall. Q. Apart from the fact that the surface was, you believe ... A. Was rock solid. Q. Was relatively hard? A. Yes, and with protruding rocks and et cetera. Q. But you have, there is nothing to indicate that the plaintiff fell onto a rock or anything like that? A. No. Q. The presence or absence of rocks on the surface is again something that could only be relevant on the basis of mere speculation? A. Yes."
Later he was asked: [13] "Q. Third, you said, 'Not providing a safe, suitable area to ride the horse', I think we agreed earlier that it would be speculation to assert that it was the ground or the topography or the surface that caused the horse to behave as it did? A. I don't think that takes away from the fact that the environment wasn't a safe environment to ride the horse in, but whether it actually caused the horse to react, that is speculation."
Merely because an expert witness describes a counter factual inquiry as "speculation" does not necessarily preclude the Court drawing an inference to that effect. Nevertheless I agree with Mr Rewell SC's submission that it is impermissible speculation to conclude that, had a more secure fence been provided, then the accident would not have occurred or that, had more grass been present on the surface of the paddock, then Ms Robinson's fall would not have had the terrible consequences for her that it did. In relation to the former it follows from my earlier findings that Danny had been ridden in that paddock and other paddocks on the farm without incident. In those circumstances it is difficult to conclude that the absence of the suggested form of fencing caused him to pig-root or buck. In relation to the latter, a far more detailed inquiry into the dynamics of Ms Robinson's fall and the nature of her injuries is required before the Court could conclude that some particular feature of this paddock, as opposed to some hypothetical standard paddock, contributed to Ms Robinson's catastrophic injury.

[12]

Length of the reins

I have already addressed the competing evidence concerning the length of the reins (at [75]).
In his second statement, Mr Doughty noted that with western trained horses it was common to use a "long rein riding style" whereas with "'English' style riding" long reins were "only used in a situation where the horse is relaxing or stretching". He noted that Ms Robinson's background and experience was in English style riding. He also stated: "People who learn to ride with shorter reins find it very difficult to ride with a long rein and have control. Many riders rely to varying degrees on the reins to provide some stability to the rider. The long rein style takes getting used to and relies very much on the use of body weight, leg and balance to control a horse. A leisure rider from a background of English riding style, who is out of practice and is riding with a long rein and in a western saddle for the first time will feel very insecure. It is my experience that even very experienced, expert English style riders feel insecure the first time they ride in western equipment and style. … It is my experience and my opinion the use of a long rein on a factious horse allows the horse more time and room to move hence they are in critical situations more difficult to control, particularly for riders who are unaccustomed to riding western style as previously described. I don't believe I can definitively say a different bit and shorter reins would have prevented the Plaintiff from being thrown from the horse. However it is my opinion that the risk to the Plaintiff would have been significantly reduced if she was riding with equipment, saddle, bridle and advice, that allowed her to ride in a style she was more familiar with ..."
Mr Doughty was cross-examined about his lack of knowledge about the length of the reins held by Ms Robinson. Mr Doughty agreed that the length of the reins did not have "anything to do with the horse pig-rooting". He was asked "if the reins are short and held quite tight will that prevent or can that prevent a horse from bucking". He replied: "It can restrict its ability to buck if you can hold the horse's head up in a sense, which is I think what you're referring to. If the horse is really dead set on bucking it's very difficult to do that, but if the horse is you know not quite committed to it, yeah, you can restrict its ability to buck by holding its head up."
He agreed that this would require the rider to react "very quickly" and to be a very experienced, competent and practiced rider.
In re-examination, Mr Doughty was referred to the description of the length of the rein provided by Ms Robinson and he agreed that description was likely to yield "a belly in the rein" and that if the rein "had a belly [it was] likely to affect the ability [of the rider] to stay on a horse".
There are three related difficulties with this aspect of the plaintiffs case. First, I do not accept that, just prior to the horse pig-rooting or bucking, the reins were as long as was suggested to Mr Doughty.
Second, Mr Doughty's evidence does not permit a finding to be made that the advice I accept Ms Martin gave in relation to the loosening of the reins was negligent. It was appropriate with a western style horse to advise Ms Robinson to loosen the reins to a degree given that she was used to riding in the English style. I am not satisfied that she encouraged Ms Robinson to lengthen the reins to the degree that they rested on the ground (and not satisfied that they in fact did so).
Third, I am not satisfied that a shortening of the reins would have resulted in the accident not occurring. Mr Doughty agreed that the length of the reins was unrelated to the horse pig-rooting. At best it could only have prevented Danny bucking. However, given the answers noted above (at [109] to [110]), I am not satisfied that with her level of experience and competence Ms Robinson could have prevented that occurring (CLA SA: s 34(1)(a)).

[13]

Girth straps

In his first statement Mr Doughty opined: "The horse was saddled with a western style saddle that was unfamiliar to [Ms] Robinson. Western saddles are usually rigged with two girths one main girth that is tight to hold the saddle firmly the second girth behind the first that is usually looser to prevent the saddle tipping forward during fast stops and turns etc. [Ms Robinson] did note the western style saddle was fitted with only one girth, as a result the western saddle is less stable and more likely to tip forward should the horse move quickly and irregularly making it extremely unstable in that situation."
In his second statement he expanded upon this stating: "Your basic description of 'Western style' saddles being rectangular compared to 'English style' saddles more oval shape is correct when you consider the frame or 'tree' they are built on. There are many styles of western saddle, it is common for western saddles to have 2 girths or cinches. The girth or cinch at the front of the saddle is larger, stronger and tighter to hold the saddle on the horse, the hind girth or cinch is not as tight and has the function of stabilising the saddle on the horse during strenuous activity, if a saddle is designed to have 2 girths and only the one front girth is used, the saddle will lack stability during strenuous activity such as sharp stops, changes of direction or bucking and pig-rooting … it is my experience and my opinion that the lack of stability of a saddle makes it more difficult to ride a horse additionally in situations where a horse is behaving poorly an unstable saddle will contribute to an increase in the unwanted behaviour."
In cross-examination Mr Doughty agreed that a western style saddle derives stability from an underlying frame. He also agreed that a Western style saddle is designed as a working saddle. It is envisaged that the rider will occupy the saddle for a long period. He agreed that the rear of a Western style saddle is raised higher than an English saddle.
Mr Doughty's evidence did not go so far as to demonstrate that it was negligent per se to employ a western saddle with one girth strap. It may be that it was negligent to use one in this particular case when one has regard to Ms Robinson's unfamiliarity with a western trained horse and a western saddle, as well as her recent lack of experience in riding, assuming all those matters were known to Ms Martin. However Mr Doughty did not state that either. In the absence of him doing so and in circumstances where I accept that Ms Martin could act on the basis that Danny was a "gentleman", I am not satisfied that it was negligent to use a western style saddle with one girth strap.
In any event there is no basis for concluding that the use of such a saddle was causative of the accident. Ms Robinson did not state that the saddle moved. Instead she said that she "mov[ed] forward in the saddle". None of the witnesses described the saddle "tip[ping] forward" as referred to above.
Under cross-examination by Mr Rewell SC, Mr Doughty agreed: [14] "Q. Similarly, without knowing whether in fact the saddle slipped or moved in any way, there would be speculation involved in whether that contributed in any way to what ultimately occurred? A. There would be speculation."
In re-examination, Mr Doughty said that, with one girth strap, if the horse bucks the "back of the saddle will lift". However that is a long way short of establishing that if there were two or more girth straps and the horse bucked Ms Robinson would not have fallen from Danny. I am not satisfied that she would not have (CLA SA; s 34(1)(a)).

[16]

The Farm Pack

The terms and conditions of the Farm Pack policy were set out in a product disclosure statement ("PDS"). The PDS identifies thirteen categories of insurance cover that are potentially available in respect of a farm, homestead buildings and farming operations, including home property, farm property, public and products liability, motor vehicles and personal accident insurance. Within the categories there were variations of cover. For example the home property category allowed a choice of building or contents insurance or both.
The renewal schedule for the period from 4pm on 24 April 2009 to 24 April 2010 identified Mr Vogelsang as the insured and indicated that he had only taken out three categories of cover, namely home property, farm property and public and products liability cover. In relation to home property the schedule indicated that he had building insurance and the sum insured was $210,381.00 but also stated that "you have no contents cover under this policy". In relation to public and products liability cover the schedule stated: "Section Three - Public and Products Liability Farming Business [blank] Situation Section 5454 [sic] & 996 Hd Bremer SA 5255 … Limit of Liability $10,000,000."
In the end result the debate about indemnity under the Farm Pack concerned section three, however it is necessary to refer to some of the general definitions and aspects of the building cover provided by section one.
The opening part of the PDS contains a statement of certain general definitions applicable to all sections of cover. The commencing words state: "These definitions apply to and should be read in relation to each of the sections unless they are defined differently in the relevant Section."
Two of the general definitions are of potential relevance, namely: " 'Farming Business' means: - farming activities declared by You to Us, and - incidental farm contracting, excluding activities involving: - paying guests or lodgers, or - visitors associated with tourist or hosting operations." … 'You' or 'Your' means the person(s) or legal entity named in Your Schedule as the insured and those people who live with You permanently who are any of the following: - your legal spouse or de facto (meaning a de facto relationship where You and Your partner are living together in a genuine domestic relationship), or' - any member of Your own or Your spouse's or de facto's family."
It was ultimately not disputed that during the period of cover commencing from April 2009 Ms Martin was Mr Vogelsang's de-facto partner.
Clause 15 of the Home Property (ie Section One) cover provided that Allianz will "cover Your legal liability for payment of compensation in respect of ... bodily injury ... caused by an accident or series of accidents ... occurring ... anywhere in Australia ...". This provision together with s 48 of the Insurance Contracts Act 1984 (Cth) is clearly apt to extend cover to Ms Martin against any liability she may have to Ms Robinson given that it was accepted that she was Mr Vogelsang's de-facto spouse at the relevant time. However there is an exclusion from cover for any "liability directly or indirectly arising out of or in any way connected with any horse riding activities" unless otherwise stated in the schedule to the policy. The schedule to the policy does not otherwise state and this exclusion is clearly applicable. No submission was put to the contrary.
Mr Cavanagh SC also contended that the cover provided by clause 15 of section one was not applicable in this case because a special condition to the policy restricted the scope of the cover to only "any legal liability ... incurred] as owner of the Buildings" on Lot 545 in circumstances where contents cover was not taken out. Mr Lawson submitted to the contrary. In light of my finding about the exclusion for horse riding activities it is not necessary to consider this further in relation to this policy.
Section three of the Farm Pack policy provided cover as follows: "This Section insures all amounts which You become legally liable to pay as compensation (excluding punitive, exemplary, aggravated damages) for Personal Injury and/or Property Damage occurring within the Territorial Limits as a result of an Occurrence in connection with Your Farming Business, up to the limit of indemnity."
The definition of "Farming Business" has already been outlined. It relevantly includes such farming activities as are relevantly "declared by You to us" unless stated otherwise in the schedule. As noted the schedule was left blank and so did not otherwise state. The only evidence of any activities having been declared by Mr Vogelsang to Allianz was in his insurance application form dated 12 April 2001 that referred to him engaging in "cereal farming". There was no evidence that Allianz's agent, Mr Haeusler, was aware of any other form of farming being conducted on Lot 545.
Section three also contained its own definitions including "Occurrence" which is relevantly defined as meaning an "event" and the following: "'You', 'Your', 'Yours' means: a. the Insured shown in your schedule; b. any subsidiary companies of a. above ... c. ... d. i. any director, executive officer, employee or partner of the Insured shown in Your Schedule …"
Clause 10 of section three provides for an exclusion for any liability from "horse riding directly or indirectly arising out of or in any way connected with any horse riding activities that are conducted for reward or payment". No payment was involved in this matter so there is no basis for this exclusion to apply. Instead two issues arise in relation to whether cover is available to Ms Martin under section three.
The first is whether Ms Martin is capable of obtaining cover under section three because, according to Allianz, she does not fall within the definition of "You" in section three as opposed to the definition of "You" in the general terms and conditions noted above at [128]. The second is whether any liability of Ms Martin towards Ms Robinson is a result of an "occurrence in connection with [the] Farming Business".
In relation to the first issue Mr Lawson submitted that the definition of "You" in section three merely expanded upon the definition of "You" in the general terms and conditions. I cannot agree. If that were so then the definition of "You" in section three would have been an inclusive definition and there would be no need to include the "Insured shown in Your Schedule" in clause (a). In one sense it is understandable that section three would have a definition of "You" in the terms noted in [134] above as the section is offering public and products liability cover for the conduct of a business and not a home. In another sense given the notorious fact that family members including teenagers work in farm businesses it seems incongruous that they would not have the benefit of cover unless they fall within sub-clause (d) of the definition of "You" in [134]. Be that as it may, in this respect the Farm Pack policy is clear.
Does Ms Martin fall within sub-clause (d) of the definition of "You" in the definition applicable to section three of the Farm Pack policy? There was evidence that Ms Martin assisted Mr Vogelsang with the paperwork for his trucking business but there was very little evidence about her role on the farm (and almost none concerning her involvement in cereal farming). Such evidence as there was concerned the reasons for Ms Martin purchasing Danny, namely that she purchased the horse "[f]or pleasure" but she "took him around the cropping paddocks, I moved cattle with him, or moved them off the windmills". In cross-examination Ms Martin said she bought Danny both for riding and for doing some work on that farm and she needed a horse she was comfortable with. She said that she moved cattle away from windmills on the property while riding Danny and was then asked: [15] "Q. What if any other work did he do around the farm during that time? A. He didn't really do any work, it was merely my riding and on those few occasions pushing the cattle. We had a few sheep there, but he wasn't specifically bought to move the sheep and the sheep run too hard if you push them too hard with a horse."
Ms Martin added that she worked Danny "on the farm as required" and that "[d]espite his age he was still a working animal". She stated that Danny could have been required for checking windmills, fences and bores.
The end result is that there is no evidence upon which the Court can conclude that Ms Martin was an employee or partner of Mr Vogelsang for the purposes of the above part of the definition of "You" in section three of the Farm Pack policy.
In relation to the second issue, the suggested connection between Ms Robinson's accident and the farming business arose out of evidence given by Ms Martin that at least in part she purchased Danny to assist her on the farm which is summarised above. Although the words "in connection with" are said to be words of the widest import (El Hayek v Vasic [2010] NSWSC 634 at [59] per Garling J) it is difficult to see how the riding of a horse by a guest for pleasure can be said to be an "occurrence" in connection with the business of cereal farming merely because part of the reason for buying the horse was to assist in that business (see Rian Lane v Dive Two Pty Ltd [2012] NSWSC 104 at [93] to [95] per Adamson J). However it is not necessary to resolve this given my finding in relation to the first issue. Given that any finding on this issue may affect the understanding of the extent of cover available to a number of rural property owners, I will not consider this issue further. It follows from the finding in [140] that Ms Martin cannot claim indemnity under section three of the Farm Pack Policy.

[17]

Classic Plus Home Insurance Policy

In his evidence, Mr Vogelsang stated that the home on Lot 95 was occupied by his son. The relevant schedule identified the period of cover as being from 1 October 2009 to 4pm on 27 April 2010 and stated that he had cover for "buildings", "Legal Liability Cover" for $20 million, but no contents cover. The terms and conditions were also set out in a product disclosure statement (the "Classic PDS").
The Classic PDS contained a definition of "You" and "Your" that was the same as that set out in [128] and thus included Ms Martin. Clause 16 of this policy provided: "(Applicable whether you have buildings and/or contents cover) We will cover your legal liability for payment of compensation in respect of: - death, bodily injury or illness, and/or - physical loss of or damage to property, occurring during the period of insurance which is caused by an accident or series of accidents attributable to one source or originating cause. This cover applies in respect of an accident occurring: - anywhere in Australia, or - …"
Despite the opening words of this definition, the special conditions include the following: "1. If you own the buildings but have only insured your contents under this policy, we will not cover any legal liability you may incur as owner of the buildings. This condition does not apply if the buildings are defined as a lot and your contents are insured by the policy. 2. If you own the buildings and have only insured your buildings under this policy we will only cover any legal liability you may incur as owner of the buildings.
Allianz relied on the second clause to this special condition. Mr Cavanagh SC submitted that because, at the relevant time, Mr Vogelsang owned Lot 95 and had only insured that building under the Class Plus Home Insurance policy, the legal liability insurance provided by the class plus home cover policy was restricted to covering any liability that Mr Vogelsang (or Ms Martin) incurred as "owner of the buildings" on Lot 95. As any liability that either of them may have had to Ms Robinson was clearly not of that character, it was submitted that cover was not engaged. I accept that submission.
Both Mr Cranitch SC and Mr Lawson submitted that there was some ambiguity in these parts of the policy and thus sought to engage the principles of interpretation applicable to exclusion clauses. However I could not discern any such ambiguity. It follows that indemnity is not available to Ms Martin under this policy for Ms Robinson's claim either.

[20]

Mr Vogelsang's evidence

Mr Vogelsang explained that the property referred to in the evidence as Lot 545 consisted of two properties, one being Lot 545 itself and another being an adjoining paddock at 99600 of Berrima. Mr Vogelsang said that he purchased Lot 95 some time around the period 2000 to 2002 and that his son had been living there since he bought it.
Mr Vogelsang had difficulty in recalling the timing of events. He was unable to identify when he met Ms Martin or when she moved into his house on Lot 545. He recalled first dealing with Mr Haeusler in relation to insurance in "roughly [19]88". When asked what he said to Mr Haeusler about insurance Mr Vogelsang explained: [16] "Well, on my very best I mean I'd always say to Mr Haeusler, I said, look, this is - this is what I need. I don't need top of the list but I don't want the bottom of the list. I want a good average, run of the mill [insurance] for what things are worth, and that's how he wrote out a farm package for us."
He said he recalled explaining that he needed "shed insurance, house insurance" but could not recall what was said about "public liability". Mr Vogelsang said that he acquired the Farm Pack policy in "roughly [19]88" and the Classic Plus Home policy in 2002. In relation to the latter he could not recall any discussion about public liability insurance. He said that he spoke with Mr Haeusler around the time of the renewal of the policies but left it to Mr Haeusler to make "sure we had enough - enough cover on what we were doing". Mr Vogelsang stated that when he received renewal notices he handed them to Ms Martin to ensure they were paid.
Mr Vogelsang stated that he had a recollection that at some point he had contents cover under the Classic Plus Home policy but that he discontinued it when his former partner left him and took the furniture. The difficulty with this evidence is that the policy concerned Lot 95 and Mr Vogelsang never lived there. He said that he told Mr Haeusler "there is no good insuring something I haven't got" and Mr Haeusler agreed.
Mr Vogelsang was initially unsure what he would have done had he been told that discontinuing his contents cover over Lot 95 would have affected his public liability cover but later stated that he would have asked Mr Haeusler about what to do. He also stated that he had always been "conscious" of the need for public liability insurance and agreed that he was worried about people injuring themselves on his property.
The confusion in this aspect of Mr Vogelsang's evidence was exposed in cross-examination by Mr Cavanagh SC. Mr Vogelsang stated that his former partner lived with him at Lot 545 and that he discontinued contents insurance over that property. He agreed that at least from the time Ms Martin moved into Lot 545 there was furniture and contents in the house but nevertheless he did not obtain contents cover. Mr Vogelsang stated that he expected Mr Haeusler to arrange it. He agreed that his son had contents including furniture and appliances in the house at Lot 95 but could not explain why he did not seek contents insurance for Lot 95. He also stated that he expected Mr Haeusler to arrange it.
In fact Mr Vogelsang was unsure as to whether he ever had contents insurance in respect of Lot 95: [17] "Q. You know you didn't have contents insurance for [lot] 95? A. I did not know. You were the one that told me. Q. Do you say you believed you had contents insurance for [lot] 95 from 2002? A. To be honest, matey, I don't know."
Under cross-examination by Mr Rewell SC Mr Vogelsang denied that Mr Haeusler's role was limited to arranging the insurance requested by the financiers for his purchase of the additional paddock for Lot 545 and Lot 95. However, he agreed that he received letters from the financiers requiring that insurance be taken out. He stated that he gave those letters to Mr Haeusler and that he told Mr Haeusler "to send them [evidence of insurance cover] so that they knew we had insurance on it". He accepted that he knew that Mr Haeusler was an "agent for [the] insurance company" and paid by them. He agreed that he received documents sent by Mr Haeusler from Allianz but stated that he "never really looked at them".

[22]

Mr Haeusler's evidence

Mr Haeusler stated that he commenced working as a life insurance agent for Colonial Mutual Life some time around 1987. He became an agent for multiple insurers in 1994. However from 2000 he worked as sole agent for Allianz and remained so until March 2011. Mr Haeusler stated that he understood his role was limited in that he could "tell ... the client or customer what the policy covers, and what the cover is for" but "I cannot give advice on the - basically the fine print of the schedule, I'm not allowed to".
Mr Haeusler said that he met Mr Vogelsang through their local church. He recalled that he first spoke to Mr Vogelsang about arranging insurance in 2002 (although it must have been earlier). Mr Vogelsang stated that he needed insurance for a house he had bought, being Lot 95. Mr Haeusler's evidence about that approach was as follows: [19] "Q. Please let us have, as best as you can, the conversation that took place between the two of you that led you to obtain some insurance? A. Mr Vogelsang asked me specifically and directly to only give him the insurance that was required by the bank, because he hates insurance, he doesn't like it and not interested in it, but he cannot settle this property without it. So he gave me the paperwork that stated the sum insured that he needed to settle this property, and asked me to organise a certificate. Q. Did that involve you speaking to the bank yourself, or not? A. He told me that I had to speak to the bank myself. They actually - one of the documents in the contract of sale, finance contract states all the requirements for the certificate of currency, naming the correct name for the bank, how they want to be spelt, and stipulated on that certificate."
Mr Haeusler said he contacted the bank and determined what insurance the bank sought to meet its lending guidelines. In the case of Lot 95 the cover provided by the Classic Plus home policy taken out by Mr Haeusler was sufficient. Mr Haeusler recalled that Mr Vogelsang "asked for the cheapest" and that was the Classic Plus home policy. Mr Haeusler explained that there was a more expensive policy available namely the "Prestige". Mr Haeusler stated that Mr Vogelsang said that "he only wanted what was necessary for the bank [and] that he would only take the home buildings insurance policy". Mr Haeusler stated he nevertheless explained the insurance proposal to Mr Vogelsang. Mr Haeusler stated he always tried to sell customers home and contents insurance but Mr Vogelsang "refused the contents [insurance] because the bank didn't require it". Mr Haeusler gave Mr Vogelsang the PDS and the proposal. From time to time he received changes to policy wording which he sent to Mr Haeusler.
In relation to the Farm Pack policy for Lot 545, Mr Haeusler recalled that it was taken out in 2004 around the time that Mr Vogelsang purchased the additional paddock, being 99600 of Bremer (although when he saw the insurance proposal that bore the date 24 April 2001 he revised that date). Mr Haeusler said that Mr Vogelsang financed that purchase by mortgaging the existing land that constituted Lot 545 ("... finance people needed a certificate of currency to settle that finance deal without the certificate of currency they would not settle"). Mr Haeusler described Mr Vogelsang's instructions as follows: [20] "... he rejected contents, he rejected personal property, motor vehicles, theft, all the other items in there he said I have a letter from the bank, deal directly with them and only take out the insurance that is required or that they will accept to settle this mortgage, he doesn't - he's not interested in insurance, he doesn't want to pay any more than he has to."
Mr Haeusler said he contacted the financier. He recalled that it was difficult to satisfy their requirements because they required cover for "both properties" (i.e. Lot 545 and the additional paddock) but the additional paddock had nothing insurable in it. He recalled that the financier considered it acceptable if "both properties were mentioned in the liability section".
Consistent with what was put to Ms Martin, Mr Haeusler said that after the accident Mr Vogelsang contacted him seeking a certificate of currency for the loads his truck was carrying for a particular transport company, and it was in that context that he spoke to Ms Martin. Mr Haeusler could not recall having a conversation with Ms Martin about either the Classic Plus Home policy for Lot 95 or the Farm Pack policy for Lot 545.
Four matters should be noted about the cross-examination of Mr Haeusler. First, Mr Haeusler rejected the suggestion that Mr Vogelsang was reliant on him for help with his insurance requirements. He said he explained the limitations on his role on many occasions. He was asked: [21] "Q. You see the position is this, isn't it? Mr Vogelsang really gave control of the whole thing over to you and asked you to organise for him the insurance that would suit his needs, correct? A. No. He instructed me, I was under specific instructions."
Second, Mr Haeusler said that he maintained some file notes of his dealings with Mr Vogelsang. However he said he did not retain them but instead provided them to Allianz's solicitors in Adelaide some time after the litigation commenced.
Third, Mr Haeusler denied that during the relevant period he was aware that Ms Martin was in a de facto relationship with Mr Vogelsang although he knew she lived with him. However, he knew that de facto partners were covered under many sections of both policies and agreed that, if Mr Vogelsang and Ms Martin were in a de-facto relationship, then "any decision that was made in relation to personal injury or public liability cover on Mr Vogelsang's behalf would also affect Ms Martin's financial situation".
Fourth, the focus of the complaint concerning Mr Haeusler's conduct concerned his alleged failure to specifically advise Mr Vogelsang that a failure to take out contents insurance over Lot 95 under the Classic Plus Home policy would restrict the scope of the public liability cover that would be offered, i.e. the effect of the special condition noted in [144] above. Mr Haeusler agreed that he understood that "for public liability insurance to kick in" under the Classic Plus Home policy for "injury to himself or if his friends are on the property" it was necessary to take out contents insurance. It was then put: [22] "Q. You didn't tell him that, did you? A. Yes, but my instructions were clear: I don't want anything else, just give me - this is what the bank want - deal with them and give them the certificate of currency so that my finance will settle. … Q. You didn't explain at all to Mr Vogelsang, did you, that if he took out contents cover that would give him a very different type of legal liability cover than what he would receive if he didn't take out contents cover, you didn't explain that to him, did you? A. Not on 95, no. … Q. When you say no you agree that you did not explain that difference to him? A. No, I did not explain that - to him."

[24]

Estoppel claim against Allianz

Mr Vogelsang's and Ms Martin's estoppel claim against Allianz was articulated in Mr Lawson's written submissions as follows: "The First Defendant was concerned with ensuring that he was covered by insurance for legal liability. Mr Haeusler's conduct in not communicating with Mr Vogelsang just what the policies covered had the effect of inducing Mr Vogelsang into believing that he had the cover that he sought from the policies. On the basis of that assurance, the First Defendant acted to his detriment and refrained from seeking other insurance that would have covered him for the kind of liability that might attach to him in this case."
The estoppel claim suffers from the obvious obstacle, perhaps impassable, that it is ultimately only Ms Martin who is said to be exposed to a claim without insurance yet she had no relevant dealings with either Allianz or Mr Haeusler, and she did not give evidence of having any belief or understanding that she had any form of insurance cover at all. However, leaving that aside, each of the above steps in the estoppel argument is not established by the evidence.
First, I do not accept that Mr Vogelsang was concerned to ensure he was covered by insurance for legal liability. To the contrary, he was only concerned to ensure he had the minimum level of insurance necessary to support the finance he obtained to purchase his properties.
Second, Mr Vogelsang did not have any belief that "he had the cover that he sought from the policies" if that was meant to convey anything beyond the minimal level of cover necessary to satisfy the financiers.
Third, I do not accept that Mr Vogelsang relied on any express or implicit assurance as to his form of cover by not seeking "other insurance" (or more insurance). If Mr Haeusler had specifically advised Mr Vogelsang of, say, the effect of the special condition in the Classic Plus Home policy noted above Mr Vogelsang would not have altered his instructions about insurance cover. Mr Vogelsang had the minimal level of cover that satisfied the financiers and that is all he wanted. Thus, assuming in Mr Vogelsang and Ms Martin's favour, that Mr Haeusler's conduct caused either of them to believe they had public liability cover sufficient to cover Ms Robinson's claim, then neither of them discharged the onus of proving any reliance on that conduct (Sidhu v Van Dyke [2014] HCA 19; 251 CLR 505 at [61]).
It follows that Ms Martin's cross claim against Allianz must be dismissed.

[25]

Mr Vogelsang and Ms Martin's Cross Claim against Mr Haeusler

On behalf of Ms Martin, Mr Lawson contended that Mr Haeusler was liable in negligence and otherwise acted contrary to s 1041H of the Corporations Act 2001 (Cth) and s 12DA of the ASIC Act. Section 1041H precludes a person from [engaging] in conduct, in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive". Section 1041I enables the recovery of loss suffered by the conduct of another person that was contrary to, inter alia, s 1041H. Section 12DA is similar to s 1041H although it relates to "financial services". Section 12GF is in similar terms to s 1041I. These claims allege that Mr Haeusler misled Mr Vogelsang by failing to explain the effect of not taking out contents insurance on the Home Class Plus insurance as revealed by the exchange noted in [171] above.
In light of the factual findings that I have already made these causes of actions can be dealt with briefly. In relation to the negligence claim, the written submissions in support of this part of the cross claim emphasise the trust and reliance placed by Mr Vogelsang on Mr Haeusler. Those references are inconsistent with the factual findings that I have made concerning their dealings with each other. However they do not confront how Ms Martin could have been owed a duty of care by Mr Haeusler. Even making the generous assumption in her favour that she was a member of a class of third parties to whom a person such as Mr Haeusler may have owed a duty of care, that duty could not rise any higher than giving effect to Mr Vogelsang's instructions (Hawkins v Clayton [1988] HCA 15; 164 CLR 539). Mr Haeusler gave effect to those instructions. Further, even if the duty extended to giving advice to Mr Vogelsang to the effect that not taking contents insurance over Lot 95 might compromise the availability of public liability insurance in respect of Lot 545, that breach was not causative of any loss because, for the reasons already stated, it would not have resulted in Mr Vogelsang altering his insurance arrangements.
The claims under both s 1041H of the Corporations Act and s 12DA of the ASIC Act asserted that Mr Haeusler's failure to advise as to the effect of the special condition noted above was a form of misleading and deceptive conduct in that, in combination with the contents of the renewal notices, his conduct conveyed that public liability cover sufficient to cover Ms Robinson's claim was available. Given the findings I have made as to the dealings between Mr Vogelsang and Mr Haeusler, I am very doubtful that his failure to advise was misleading. However it is not necessary to finally determine this because assuming, without deciding, that Mr Haeusler's conduct was misleading, I do not accept that any loss was suffered "by" his conduct (Corporations Act, s 10411; ASIC Act, s 12GF) because Mr Vogelsang would not have sought additional cover even if Mr Haeusler had explained the special condition in any detail. The larger question as to whether a party such as Ms Martin, who does not claim to be misled, can recover under either of s 1041H or s 12DA because another person was misled need not be determined (see Karl Suleman Enterprizes Pty Ltd (in liquidation) v Pham [2013] NSWSC 110 at [48] to [51] and cases cited therein).

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (17)

Cited By (1)