Menz v Wagga Wagga Show Society Inc (No 3)

On 27 and 28 September 2012, the Wagga Wagga Show Society Inc (‘the defendant’) conducted an agricultural show (‘the show’) at the Wagga Wagga Showground (‘the showground’). Kerrie Anne Menz (‘the plaintiff’) was, at that time, a person of considerable experience in managing horses. She had been riding horses since the age of 11 or 12, and had gained experience through pony clubs, show riding and riding stock horses.

The plaintiff had competed in many agricultural show events with a registered stock horse officially named ‘Cannon’s Gladiator’, to whom she referred as ‘Sonny’. The plaintiff had taken delivery of Sonny when he was 2½ years of age. She trained Sonny with the assistance of her husband, and successfully competed with him in events at the Holbrook Show, the Bathurst Show and the Canberra Royal Show, amongst others.

On 27 September 2012, the plaintiff attended the first day of the show. She rode Sonny in a number of events, [1] entry to which was gained by buying tickets at the office of the show secretary. [2] She said that prior to competing on that day, she had “signed some forms which are routinely provided at agricultural shows”. [3]

On 28 September 2012, the plaintiff attended the second and final day of the show to ride Sonny in some further events. She was not required to sign any forms by the show organisers on that day. [4] She took Sonny in a lead class but she has no recollection of anything else that happened. [5] It is the plaintiff’s case that at approximately 10:00am she was riding Sonny in a designated warm-up area of the showground prior to the commencement of an event in which she was to compete. A number of children were nearby, playing and/or climbing on a fence surrounding a greyhound track which was located in the centre of the showground. Those children made contact with a metal sign on the fence, causing a very loud noise. This noise startled a horse called ‘Banjo’ which was being ridden in the plaintiff’s vicinity by Cassandra MacDonald. Sonny was also startled. He faltered and fell onto his right side whilst the plaintiff was still in the saddle, causing the plaintiff to fall at the same time.

It is not in dispute that the plaintiff sustained serious injuries as a consequence of Sonny falling, and that she continues to suffer significant ongoing sequelae. The plaintiff asserts that the incident was caused by the negligence of, and/or the breach of contract by, the defendant. Although a number of particulars have been pleaded, the essence of the plaintiff’s case is that there was a failure on the part of the defendant to have marshals and stewards available to control the presence and behaviour of children in and around the warm-up area. The defendant denies liability, and in doing so relies upon a number of provisions of the Civil Liability Act 2002 (NSW) (“the CLA”). A pleaded allegation by the defendant of contributory negligence on the basis of the plaintiff’s failure to wear a helmet was not pressed at the hearing. [6]

A Joint Court Book (‘CB’) was tendered containing the pleadings and the majority of the documentary evidence. [7]

There is little dispute about the facts surrounding the incident in which the plaintiff was injured. To the limited extent that any factual issues have arisen on the evidence, I have identified them below and have expressed my concluded view in relation to them.

Within the showground there was an oval-shaped trotting track. [8] Within the trotting track there was an oval-shaped greyhound track. [9] There was a grassed area between the trotting track and the greyhound track [10] . There was a fence around the external perimeter of the greyhound track. [11] There was also a fence around the internal perimeter of the greyhound track, inside which were four designated rings [12] which were separated by laneways. [13] The laneways were formed by bunting, in the form of flags affixed to lengths of rope strung between star posts. [14]

Between the trotting track and the greyhound track was a path which had been formed by vehicles driving through the area. [15] The plaintiff had brought her own vehicle and horse float into the area on the day of the incident and had left her vehicle there when Sonny was taken out of the float. [16] At that time there were people, including children, in the general vicinity. [17]

Near the four rings was a designated warm-up area. [18] There was some inconsistency in the evidence regarding its precise configuration. Notations on an aerial photograph of the showground [19] (the provenance of which is unclear) depicted the warm-up area as a generally triangular shape. However, the evidence of Cassandra MacDonald, who was present when the plaintiff was injured, was that the area was “more of like a pie shape”. [20] Although nothing turns on it, I prefer the evidence of Ms MacDonald. Apart from anything else, her evidence in this respect appears to be consistent with what is shown in footage taken of the plaintiff competing at the show with Sonny on 27 September 2012. [21]

Competitors were permitted to warm-up in the rings before events started. [22] Warming-up was also permitted in a nearby show jumping area, providing no show jumping was taking place. Horses could not be ridden on the trotting track. Whilst a competitor had to cross the greyhound track in order to get into the rings and warm-up area, horses could not be ridden on the greyhound track itself. [23]

There was a grandstand nearby from which members of the public could view events. [24] Sideshows were located behind the grandstand towards either end. [25]

The plaintiff had been competing in events at the show for many years. The set-up at the show that I have described above was essentially the same during the whole time over which the plaintiff had competed. [26] It was the plaintiff’s understanding that those who were officiating at the show were volunteers. [27] A fee of $2.50-$3.00 was paid for each event entered [28] and entry was gained by buying tickets at the show secretary’s office prior to competing. [29]

Prior to the commencement of the show, the defendant issued the ‘148th Wagga Wagga Show Horse Program – 27 & 28 September 2012’ [30] (‘the program’), at p 7 of which the following was stated:

It was the practice for those wishing to enter an event at the show to go to the secretary’s office and obtain the program. [32] The plaintiff said that she “would have” obtained a program for the show in 2012 in order to ascertain what events she wished to enter. She could not remember whether she obtained it at the show, or at some point beforehand. However, nothing turns on that. I am satisfied that she obtained a copy of the program at some point.

The plaintiff competed with Sonny in approximately five stock horse classes on 27 September 2012, which was the first day of the show. She recalled that prior to competing in those events she had “signed some forms which are routinely provided at agricultural shows”. [33] It is clear that one of the documents signed by the plaintiff (‘the risk warning’) was in the following terms: [34]

The plaintiff’s signature appears on the risk warning under the following words:

At the bottom of the risk warning, under the heading ‘Name of horse’, the plaintiff nominated Sonny, by reference to his official name of Cannon’s Gladiator.

This form of risk warning was common at agricultural shows at which the plaintiff had previously attended and competed. She had signed similar documents on a number of previous occasions. [36] She knew of the significance of the risk warning. She specifically knew that a horse could not be entered in any event unless the risk warning was signed. [37]

The evidence before me establishes that horses, including those which might normally give the appearance of being placid, are prone to being frightened or ‘spooked’ by any number of external stimuli. Such stimuli may include loud noises, such as a PA system in a showground, and movement from other horses. [38] Even horses which are said to be conditioned to the type of stimuli which might occur at a showground can react unexpectedly. In short, there is no such thing as a ‘bomb proof horse’. [39]

The plaintiff relied on an expert report dated 2 September 2016 of Debbie Smythe, a retired horse trainer and riding instructor. [40] Although a number of parts of Ms Smythe’s expert report were excluded, [41] the passages of the report which remained in evidence included the following: [42]

Importantly, the plaintiff, as an experienced horse rider and handler, knew that horses were unpredictable in their behaviour, and were prone to being spooked. In this regard, the plaintiff’s evidence in cross-examination included the following: [43]

On 28 September 2012 the plaintiff attended the second day of the show intending to compete with Sonny in (inter alia) a ‘Galloway’ event. [44] She has no recollection of the incident in which she was injured. Her first memory is waking up as a patient in St George Hospital. [45] However, evidence given by a number of other witnesses establishes what occurred.

Ms MacDonald was preparing to compete with Banjo in an event at the show on the morning of 28 September. [46] She trotted Banjo in the vicinity of the warm-up area for five to ten minutes, during which time she noticed two children in the vicinity of the outside fence of the greyhound track. [47] She thought they were aged between 7 and 10. [48]

Ms MacDonald was asked what it was that had drawn her attention to the children: [49]

Ms MacDonald said that a noise was created by the children banging their heels on the metal sign on the outside fence of the greyhound track. [50] She described the noise as “very loud” and said that it caused the metal sign to vibrate. [51] She likened the noise to that of a shot fired from a .22 calibre rifle. [52] She then described Banjo being spooked as a consequence of the noise: [53]

Ms MacDonald pulled up Banjo on the side of the warm up area adjacent to the greyhound track. [54] She was asked whether she noticed anything about any other horse in the near vicinity at that time: [55]

Ms MacDonald’s reference to the ‘chestnut horse that the lady was riding’ was a reference to Sonny who was being ridden by the plaintiff. To Ms MacDonald’s recollection, Banjo was between the two rings at the side of the greyhound track when he was spooked by the noise. [56] She agreed that Banjo was “conditioned” to certain stimuli that might occur in an area such as a showground. [57] She also agreed, and I accept, [58] that any horse can react unexpectedly to different stimuli, to the point that there is “no such thing as a bomb proof horse”. [59]

Tayla Sutherland was working as a strapper at the show on 28 September 2012. She also saw children in the vicinity of the warm-up area “banging at the fence with their feet” for about 10 or 15 minutes prior to the plaintiff being injured. [60] She was asked: [61]

Ms Sutherland’s reference to the ‘grey horse’ was a reference to Banjo. She agreed that during the period in which she saw the children banging on the fence there were a number of horses in the warm-up area, none of which were reacting to the noise which the children were making. [62]

Nadine Wilesmith was also competing at the show on 28 September 2012. She was standing between two of the rings on the side of the greyhound track [63] when a loud bang caught her attention. [64] She looked over to her left and saw what she described as “two young kids jumping over the fence, into the warm-up area”. [65] When asked whether she saw anything else at the same time, Ms Wilesmith said: [66]

Ms Wilesmith said that when the children jumped into the warm-up area they did not run towards the horses, but “stopped in their tracks” upon the realisation that they had startled a horse. It was Ms Wilesmith’s recollection that it was the children jumping over the fence caused the startle. [67]

It will be apparent that there is some conflict in the evidence as to what exactly caused the noise. Specifically, there is an issue as to whether it was caused by the children kicking the fence, or climbing on it before then jumping into the warm up area. I prefer the evidence of Ms MacDonald in this regard as she was closer to what was occurring than either Ms Sutherland or Ms Wilesmith. I am satisfied that a loud noise was created by the children banging with their feet on a metal sign which was affixed to the outer fence around the greyhound track. This occurred whilst Ms MacDonald and the plaintiff were warming-up Banjo and Sonny respectively. I am satisfied that Banjo was spooked as a consequence of the noise.

There is also some conflict in the evidence as to whether Banjo and Sonny collided. Given that Ms MacDonald was actually riding Banjo at the time, I accept her evidence that the two horses did not collide. However, I am satisfied that Sonny was spooked, either by the noise, and/or by Banjo being spooked. As a result, Sonny fell to the ground with the plaintiff still in the saddle.

It was as a consequence of that fall that the plaintiff suffered the injuries I have discussed more fully below. I am satisfied that the children who caused the noise had been in the general vicinity of the warm-up area for 10-15 minutes prior to the plaintiff being injured.

Although nothing turns on it, I am not able to determine precisely where Sonny fell, other than to conclude that it was in and around the warm up area. Although there is a notation on Exh A in that respect, the provenance of that notation is, as I have observed, not clear. There is no other evidence which pinpoints the precise location of the fall.

In determining the issue of liability, it is appropriate to go firstly to the statutory defences pleaded in the amended defence filed on 23 November 2017.

The defendant has pleaded [68] that it is not liable for any harm suffered by the plaintiff because her injuries were due to the materialisation of an obvious risk of a dangerous recreational activity.

Section 5L of the CLA is in the following terms:

The provisions of ss 5F and 5K of the CLA are also relevant to this issue:

Senior counsel for the plaintiff accepted that the plaintiff was engaged in a recreational activity. However, he submitted that such activity was not a dangerous recreational activity, because it was not one that involved a significant risk of physical harm.

Senior counsel submitted that a determination of whether or not a recreational activity was dangerous depended, not on the generic activity in which the plaintiff was engaged at the time of suffering injury, but on the actual activity in which she was engaged. It was submitted that in the present case, the actual activity in which the plaintiff was engaged at the time of being injured amounted to nothing more than ‘warming up’ Sonny prior to competing, and that such activity was not dangerous.

Senior counsel further submitted that the risk of Banjo being spooked by the noise created by children playing nearby was one which was slight, to the point of being less than trivial.

Senior counsel for the plaintiff further submitted that even if I were to find that the plaintiff was engaged in a dangerous recreational activity at the time of the incident, the risk leading to her injury was not an obvious one. He emphasised that s 5L of the CLA provided protection to the defendant only if the harm suffered by the plaintiff was the result of a materialisation of an obvious risk, as defined in s 5F. He submitted that for the purposes of s 5F the risk was a risk of noise emanating from children playing nearby. He submitted that this was external to the activity in which the plaintiff was engaged, and was thus something which was within the control of the defendant. He submitted that but for the failure of the defendant to properly supervise the area in which the plaintiff was engaged in warming up Sonny, the plaintiff would not have been injured.

Senior counsel for the defendant made a number of submissions in relation to the legislative history of s 5L of the CLA. He submitted that the legislature’s underlying rationale in enacting the section was to have personal responsibility assume a much higher profile, by presuming that a person was aware of obvious risks. It was submitted that s 5L was to be construed in the context of a general legislative purpose and policy of effecting a significant change to the law of negligence by excluding from liability claims arising from risky activities, and by emphasising the necessity for, and importance of, personal responsibility when engaging in such activities. It was submitted that the fact that s 5L applied whether or not the plaintiff was aware of the risk was indicative of the broad and stringent application of the CLA generally.

Senior counsel submitted that in order to make out the defence under s 5L of the CLA, it was necessary for the defendant to establish that:

Accepting that the first of those matters was not an issue, senior counsel pointed to the definition of “dangerous recreational activity” in s 5K of the CLA. He submitted that the risk of physical harm referred to in that description must be more than trivial, but need not be likely to occur, and that whether a particular activity is dangerous will depend upon the objective circumstances in which a plaintiff was injured.

Senior counsel submitted that there was an ever present risk of catastrophic injury which rendered the recreational activity of riding a horse dangerous. He submitted that such a risk resulted from the independent and uncontrollable movement of a large animal with a mind of its own, and which was prone to being startled by all manner of external stimuli. It was submitted that there was always a risk that even a ‘bomb proof’ horse could be startled and that in these circumstances, the activity of riding a horse was necessarily one which involved a significant risk of physical harm.

Senior counsel further submitted that the risk was not limited to a participant’s horse being spooked, but extended to a participant’s horse being part of a chain reaction of horses’ responses. He submitted that the risk which rendered participating in horse riding in a showground environment dangerous was the risk that any one or more of a number of external stimuli might cause a single horse to be spooked, which in turn might cause the rider of that horse (or of another horse) to fall, or for a horse itself to fall. It was submitted that it was clear that such risks were obvious to the plaintiff, and that in all of these circumstances, the harm she suffered was the result of the materialisation of obvious risk. Senior counsel emphasised that the relevant risk for the purposes of s 5H was not to be categorised as the risk that children would behave in an unruly manner, but was rather the risk of falling from a horse, or a risk of the horse falling as a result of that horse, or another horse, being spooked.

Finally, senior counsel submitted that the plaintiff’s injury was the result of the materialisation of an obvious risk because the connection between the obvious risk and the harm was clear.

In order to bring itself within the provisions of s 5L, the defendant must prove four matters. I will consider each of them in turn.

There is no issue that at the time of being injured, the plaintiff was engaged in a recreational activity, namely horse riding.

In order for a recreational activity to be dangerous, it must be one that involves a significant risk of physical harm. To be significant, the risk of physical harm must be more than trivial, but it need not be likely to occur. [71] If the potential harm is catastrophic, an activity may a dangerous recreational activity even though the probably of such harm is low. [72]

In the course of submissions, senior counsel for the plaintiff referred me to the judgment of Ipp JA In Fallas v Mourlas. [73] It was submitted that his Honour’s judgment was authority for the proposition that a whether a recreational activity was dangerous “depends not on the generic activity, but on the actual activity engaged in by the plaintiff at the time of the injury”. [74]

His Honour did not draw any distinction between a ‘generic’ activity and an ‘actual’ activity. What his Honour said [75] was that deciding issues under s 5L by reference to all the circumstances that actually occurred may benefit a plaintiff in one case and a defendant in another. Moreover, his Honour recognised that prevailing circumstances may have a bearing on whether or not a recreational activity is to be regarded as dangerous in the sense contemplated by s 5L. His Honour’s conclusion in respect of this issue was expressed partly in these terms: [76]

His Honour cited [77] a number of examples of situations in which prevailing circumstances might convert a safe recreational activity into one that was dangerous. These included the example of a walk along a cliff being safe in daylight hours, but being dangerous at night. However, the present case is not one in which the danger of the recreational activity in which the plaintiff was engaged was dependent upon the existence of any prevailing circumstances. The evidence before me establishes that there is an inherent, and ever present, risk to the rider of any horse that a horse will be spooked or startled, giving rise to the risk of serious injury.

At the time of being injured, the recreational activity in which the plaintiff was engaged was that of horse riding. There is a risk of catastrophic injury to the rider of a horse simply as a consequence of a horse being ridden. There is evidence before me which makes it clear that horses are unpredictable in terms of their reaction to external stimulae. That unpredictability exists as a consequence of the fact that a horse as a powerful animal, with a mind of its own, and which is prone to reacting suddenly and unexpectedly to external stimulae. The fact that the plaintiff was warming up with Sonny at the time of the incident does not mean that her activity of riding him was not dangerous. The risk of serious injury resulting from a horse being spooked is continually present, regardless of whether a horse is being ridden in a warm up exercise, or in an event or competition.

It is also relevant, as senior counsel for the defendant pointed out, that the plaintiff asserts that the risk which the defendant should have addressed was the risk of unruly children doing something that might spook a horse and cause injury to a competitor. It follows that on the plaintiff’s case, the risk of a horse being spooked and causing injury to a rider was not so trivial that it could be ignored. In these circumstances, I am unable to accept the submission of senior counsel for the plaintiff that the risk of a horse being spooked was slight.

For all of these reasons, I am satisfied that the recreational activity in which the plaintiff was engaged at the time of being injured was dangerous.

A determination of whether the risk of the recreational activity was obvious is an objective one. The question is whether the risk was one that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. [78] I accept the submission of senior counsel for the defendant that for the purposes of the present case, a reasonable person in the position of the plaintiff means an adult with long experience of equine behaviour, who knew that horses could be spooked by all manner of external stimulae, including by the behaviour of unruly children.

A wide approach must be taken when identifying whether the risk was obvious. It is both unnecessary and undesirable to define the particular risk of harm with a high degree of particularity. [79]

Ms MacDonald gave evidence, which I accept, that all horses can react unexpectedly to different external stimulate, and engage in behaviour which is unexpected. The essence of her evidence was that horses, particularly insofar as their reactions to such stimulae are concerned, are largely, if not completely unpredictable. That general view was also expressed by Ms Smythe in her report. It was also acknowledged by the plaintiff. The fact that there is no such thing as a bomb proof horse is a matter of common knowledge. In Ohlstein v E and T Lloyd t/as Otford Farm Trail Rides [80] Bryson JA said:

These observations were generally consistent with those of Harrison J in in Goode v Angland. [81]

The fact that the noise created by the children which caused Banjo to be spooked was external to the plaintiff’s activity of riding Sonny does not mean that the risk was not obvious. On the evidence before me, the propensity of horses to make sudden and unexpected movements in response to external stimulae is constant. Those stimulae will invariably, if not always, be external. They may include a piece of paper blowing across the ground, the casting of a shadow, a sudden movement by another horse, or a sudden movement by a human being. The plaintiff was an experienced horsewoman. The risk of a horse being spooked was obvious to a person of her experience. That much is clear from those parts of her evidence to which I have previously referred. [82]

I am therefore satisfied that the risk of the dangerous recreational activity in which the plaintiff was engaged was obvious.

In the present case, the obvious risk was the risk of the plaintiff being injured falling from Sonny, or alternatively the risk of Sonny falling, as a consequence of Sonny or another horse being spooked. The evidence in the present case establishes that the plaintiff was injured, either from Banjo being spooked by the noise created by the children and Sonny being spooked as a result, or as a result of Sonny being spooked by the noise independently. In either case, the harm suffered by the plaintiff was the result of the materialisation of an obvious risk.

It follows that in my view, s 5L of the CLA applies and operates to deny the plaintiff’s claim.

The defendant has also pleaded [83] that any injury suffered by the plaintiff was the result of the materialisation of an obvious risk, and that it had no duty to warn the plaintiff of that risk.

Section 5F of the CLA is in the following terms:

Section 5H of the CLA is in the following terms:

Senior counsel for the plaintiff submitted that the defendant had failed to address the fundamental circumstance that the risk of noise made by children playing on, and/or kicking, a fence with a metal sign was external to the activity engaged in by the plaintiff, and was thus something within the defendant’s control. It was submitted that for that reason, the risk was not obvious because it was not ‘inherent to the activity engaged in by the plaintiff, and the plaintiff could not be taken to have assumed the risk of the defendant’s own negligence in failing to properly supervise the arena’. [84]

Senior counsel for the defendant relied, in large measure, on his previous submissions regarding the nature of the obvious risk. In short, he submitted that it would have been obvious to an experienced horse rider such as the plaintiff that any number of external stimuli, including children playing on or near the greyhound track at the showground, might spook one of the horses, and result in harm being caused. It was submitted that in in those circumstances, s 5H of the CLA applied.

In my view, the categorisation of the relevant risk by senior counsel for the plaintiff reflects error. The relevant risk was not a risk of noise being made by children playing on and kicking a metal sign. The risk was that a horse might be spooked causing the rider of that horse or of another horse, to fall, or a horse itself to fall.

For the reasons previously outlined, that risk would have been obvious to a reasonable person in the position of the plaintiff. The plaintiff accepted that to be the case. [85]

In the circumstances, s 5H of the CLA applies. There was no duty on the defendant to warn of the obvious risk that has been identified.

The defendant has also pleaded [86] that the plaintiff’s injuries were the result of the materialisation of an inherent risk and that accordingly, it is not liable for any harm suffered by the plaintiff.

Section 5I of the CLA is in the following terms:

Senior counsel for the plaintiff relied on his submissions in respect of s 5H of the CLA.

Senior counsel for the defendant emphasised the definition of “inherent risk” in s 5I(2). He submitted that given the wide range of stimuli which may cause even a placid horse to be spooked, any resulting injury was an inherent risk of horse riding within the meaning s 5I.

The evidence of Ms Smythe, Ms MacDonald, and the plaintiff identified some of the stimulae which may cause a horse to spook are many and varied. Such stimulae may be auditory or visual. The fact that they are so wide ranging is such that in my view, the identified risk could not have been avoided by reasonable care and skill. It follows that the plaintiff was injured as a consequence of the materialisation of an inherent risk.

The defendant further pleads [87] that it did not owe a duty of care to the plaintiff because the risk of injury was the subject of a risk warning to the plaintiff.

Section 5M of the CLA is in the following terms:

Senior counsel for the plaintiff submitted that the terms of s 5M were to be construed narrowly. He submitted that the risk warning in the present case was general in its terms, was not directed to the particular risk that caused the injury, and therefore did not meet the requirements of s 5M(5).

Senior counsel further submitted that the risk of noise made by children playing on, and/or kicking a metal sign on the fence near the warm-up area was not inherent in, or incidental to, the activity in which the plaintiff was engaged at the time.

Senior counsel for the defendant emphasised that the risk warning in the present case incorporated an express acknowledgment that it was a risk warning for the purposes of Division 5 of the CLA [88] . He submitted that it clearly warned of the risks of participating in horse events at the show, and did so in terms which made its intended legal effect plain. That intended legal effect was, it was submitted, further reinforced by the contents of page 7 of the program. [89]

Senior counsel for the defendant also relied upon the plaintiff’s evidence [90] that she was aware of the significance of the risk warning. He submitted that given that the risk warning was expressed to be for participants, and given that participants in horse events would know of the risk of injury as a result of a horse being spooked, the risk warning satisfied the requirements of s 5M(5). It was submitted that in these circumstances the defendant did not owe a duty of care to the plaintiff.

The risk warning in the present case advised the plaintiff that (inter alia):

By signing the document, the plaintiff:

In Action Paintball Games Pty Limited (In Liquidation) v Barker [91] (“Barker”) Basten JA observed that it is possible to warn of a risk without instructing the recipient of the warning as to all of the steps which are necessary to avoid the risk. His Honour also observed that an adequate risk warning can be given, at least in some circumstances, by reference to the general kind of risk involved, absent a precise delineation of each separate obstacle or hazard which may be encountered.

In Sharp v Parramatta City Council [92] the appellant suffered injuries when she landed awkwardly after jumping from a diving platform at a public swimming pool which was operated by the respondent. On the stairs leading up to the diving platform there was a warning sign displayed in the following terms:

In rejecting the proposition that the sign did not, as required by s 5M(5), warn of the general nature of the particular risk concerned, Meagher JA (having referred to the judgment of Basten JA in Barker) said: [93]

The risk warning in the present case was directed to the risk involved in participating in events or activities at the show with horses generally, and specifically with Sonny. In my view, that risk warning identified, and warned, of the general nature of that particular risk. It also warned that there was a risk of injury in undertaking any activity, or participating in any event, at the show involving the use of horses. That risk was one which was known to the plaintiff.

It follows that in my view s 5M of the CLA applies, and the defendant did not owe a duty of care to the plaintiff.

The Australian Consumer Law (‘ACL’) is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (‘CCA’).

Section 60 of the CCA is in the following terms:

Section 275 of the ACL is in the following terms:

Further, s 139A of the CCA provides as follows:

The provisions of s 5N of the CLA are also relevant in this context and provide as follows:

Senior counsel for the plaintiff submitted that the effect of s 60 of the ACL was to imply, into the contract to compete in events at the show, a guarantee on the part of the defendant that the services provided by it would be rendered with due care and skill. It was submitted that the defendant could not rely on s 5M or 5N of the CLA to defeat a claim under s 60 of the ACL.

Senior counsel for the defendant submitted that the plaintiff’s claims pursuant to the ACL did not avoid the operation of ss 5H, 5I, 5L or 5M of the CLA because of the fact that each of those provisions was ‘picked up’ by s 275 of the ACL.

Senior counsel for the defendant accepted that the risk warning could not operate as a waiver because s 5N of the CLA was not ‘picked up’ by s 275 of the ACL. However, it was submitted that s 139A of the CCA nevertheless applied.

Each of the provisions of the CLA upon which the defendant relies is encompassed by s 275 of the ACL. In particular:

It follows that for the purposes of s 275, each of these sections is a law that ‘applies to limit or preclude liability’. In those circumstances, the plaintiff cannot rely upon the provisions of the ACL to circumvent the operation of those sections of the CLA upon which the defendant relies.

Although s 5N of the CLA is not picked up by s 275 of the ACL, such that the risk warning cannot operate as a waiver, s 139A of the CCA nevertheless applies and liability is excluded.

Section 5B of the CLA is in the following terms:

Further, s 5C is in the following terms:

There is no issue that the defendant owed a common law duty of care to all of those entering, and competing in, events in the show. As I have identified, the risk of harm in the present case was the risk of harm being occasioned to a competitor, or a person preparing to compete, as a result of horse being spooked. The question is what a reasonable person would have done in terms of taking precautions.

Bearing in mind the evidence of the behaviour of horses, and the wide range of stimulae to which a horse might react, this was not simply a matter of the defendant having marshals present to monitor the behaviour and presence of children. Children might have been expected to be present in many areas of the showground including the sideshow areas at either end of the grandstand. It was not simply a case of the defendant having marshals near the fence where children who made the noise were present. An acceptance of the plaintiff’s case would have required the defendant to have a large number of marshals in and around the trotting track and the greyhound track.

In terms of the factors in s 5B(2), there was obviously a probability that harm would occur if care were not taken and that harm was likely to be serious. Because of the range of stimulae to which a horse might react, the burden on taking precautions to avoid the risk of harm was significant. I am also satisfied that the risk was both foreseeable and not insignificant.

I am not satisfied that in the circumstances, a reasonable person in the defendant’s position would have taken the precautions which have been suggested. It is important to bear in mind that the burden of doing so was not limited to, as the plaintiff has suggested, placing marshals in and around the area to control the presence of children. Rather it extended to addressing a series of other circumstances to which a horse might suddenly react, including something as simple as a piece of paper blowing across the ground.

It is also relevant to bear in mind the terms of the risk waiver which the defendant required each competitor to sign. I accept the submission of senior counsel for the defendant that a reasonable response on the part of the defendant in the present was to make it clear to those who wished to compete, through the risk warning, that it would not be liable for any injury.

Upon being notified that the plaintiff had been involved in an accident, the plaintiff’s daughter, Ryley, arrived at the showground at approximately 10:25am. She was unable to see the plaintiff at that time as she was being attended to by ambulance officers. Following the accident, the plaintiff was taken to the Wagga Wagga Base Hospital where she was intubated and ventilated, following which she underwent radiological investigations before being transferred to the Intensive Care Unit at St George Hospital. Ryley saw her mother at Wagga Wagga Base Hospital. She described her as being “in a coma and on life support”. [94] Along with the plaintiff’s husband, Ryley then drove to St George Hospital where she was informed that the plaintiff would survive. [95]

A CT scan of the plaintiff’s brain undertaken on 28 September 2012 established that there was a left-sided temporal lobe petechial haemorrhage, a subtentorial cerebellar petechial haemorrhage, and a suspected small subtentorial subdural haematoma in that vicinity. Diffuse left-sided cerebral oedema was also suspected in light of the asymmetry of the conspicuity of the sulci, and subtle reduced attenuation of the deep white matter. Facial and zygomatic arch fractures were also established following radiological investigation. All of which were either minimally displaced or undisplaced. There was also a right orbital haematoma.

A CT scan of the plaintiff’s cervical spine reported rotation at C1-2 and some degenerative change, but no fractures. Alignment was otherwise anatomical. A CT scan of the chest noted that there was a fractured 10th rib anterolaterally, a fractured clavicle with possible pulmonary contusion, and an apical lymphatic thickening.

A CT scan of the abdomen, pelvis and lumbar spine noted that there was no intra-abdominal or lumbosacral spine injury. There was, however, mild to moderate degenerative changes of the lower lumbosacral spine, most marked at L-5.

On 8 November 2012 the plaintiff was transferred to the Brain Injury Rehabilitation Unit at Liverpool Hospital. On initial assessment she was alert and orientated, although there were deficits noted in her short-term memory. Her right eye showed a sluggish reaction to light.

A neuropsychological assessment confirmed that the plaintiff had sustained an extremely severe traumatic brain injury with the duration of post-traumatic amnesia being assessed at 38 days. There was a general decline in the plaintiff’s intellectual skills involving attention (particularly for more complex attention), speed of information processing, new learning and memory (particularly for oratory material), planning/organisation, verbal fluency, monitoring, problem-solving and abstract reasoning. The plaintiff progressed through the Brain Injury Rehabilitation Unit and was discharged on 6 December 2012. [96]

In the first of her evidentiary statements, the plaintiff said the following about her injuries and disabilities: [97]

In her second evidentiary statement the plaintiff said the following: [98]

None of this evidence was the subject of any challenge in cross-examination.

Contained within Exh B are a number of medical reports detailing the plaintiff’s injuries. Dr Bala, a Consultant Physician in Rehabilitation Medicine, examined the plaintiff for medico-legal purposes on 22 March 2018. She summarised the clinical symptoms reported to her by the plaintiff as follows [99] :

At the time of her examination, Dr Bala noted that the plaintiff’s current medication included Sertraline (25mg daily) and Ventolin as required.

Dr Bala expressed the following (unchallenged) opinion: [100]

Dr Selwyn Smith, a Consultant Psychiatrist, also examined the plaintiff for medico-legal purposes on 30 August 2017. Dr Smith described the plaintiff [101] as a person who “displayed overt anxiety and agitation, particularly when describing the impact the accident that occurred on 28 September 2012 has had on her” and who reported being “depressed, despairing, irritable and anxious, angry and self-contemptuous”.

From a psychiatric point of view, Dr Smith concluded [102] that the plaintiff demonstrated a Major Neurocognitive Disorder and a Major Depressive Order. He stated: [103]

This evidence was similarly unchallenged.

Dr Walker, a Consultant Neurologist, examined the plaintiff at the request of the defendant on 3 April 2017. He reported (inter alia): [104]

Dr Walker said [105] that it was difficult to foresee any significant improvement in any of the plaintiff’s symptoms, other than that of positional vertigo which would improve with exercise. Again, there was no challenge to this evidence.

The nature and extent of the plaintiff’s injuries is generally corroborated by the plaintiff’s husband, daughter and mother. No substantive challenge was made to the evidence of any one of them.

In his evidentiary statement [106] the plaintiff’s husband said:

The evidence of the plaintiff’s daughter Ryley was to a similar effect: [107]

The plaintiff’s mother, who is now 80 years of age said the following in her evidentiary statement: [108]

In terms of non-economic loss, the severity of the plaintiff’s injuries and her ongoing disabilities will be self-evident. In my view non-economic loss should be assessed at 75% of a most extreme case. That would entitle the plaintiff to damages of $476,500.00.

Senior counsel for the defendant took no issue with the following past out of pocket expenses claimed by the plaintiff [109] :

These items total $12,380.98.

Senior counsel for the defendant took no issue with the following:

These items total $11,948.89.

Senior counsel for the defendant submitted that in accordance with the decision in Avopiling v Bosevski [120] any future expenses claimed by the plaintiff for the balance of her life expectancy should be subject to an additional discount of 10%. Senior counsel for the plaintiff accepted that to be the case. Subject to that further discount being applied, senior counsel took no issue with the following future out of pocket expenses claimed by the plaintiff:

These items total $60,059.11. Applying a further discount of 10%, the total is $54,053.20.

The following future out of pocket expenses claimed by the plaintiff remained in issue.

Firstly, the plaintiff claimed the cost of a “Revitalife” King Bed at $14,120.00, with replacement every 10 years. The evidence of Ms Geach, who provided reports in the plaintiff’s case, was that an electric bed was appropriate at a cost of $5,900.00 [127] . I allow that cost, with replacement every 10 years.

Secondly, the plaintiff claimed an amount of $5,000.00 for the cost of a motorised scooter, based upon the opinion of Marcus Smith, Physiotherapist [128] that a scooter was necessary to enable the plaintiff to move around her property. However, the plaintiff gave evidence [129] that she has, and is able to ride, a quad bike. Her only qualification was that she had a propensity to “run into things” when she did so. If that is the case, it is necessarily an issue, irrespective of whether the plaintiff is riding a scooter or a quad bike. I do not propose to allow this claim.

Thirdly, the plaintiff claimed the cost of “natural horse retraining”. There is no evidence to support that claim and I do not allow it.

Finally, the plaintiff sought the cost of a stable hand or a labourer to assist her with the care of her horses. I propose to allow this claim at a rate of $165.00 pw (based upon 7.5 hours pw) which totals $135,630.00.

There is no issue that past economic loss should be calculated on the basis of gross earnings of $25,000.00 per annum. That calculation up to the present time is as follows:

Past economic loss therefore totals $179,980.00.

In terms of future economic loss, the calculation should be based on a retirement age of 70 years as follows:

The total for future economic loss is therefore $183,669.00.

In terms of past domestic assistance, the plaintiff firstly claims for the period between 28 September 2012 and 30 November 2012. This was a period in which the plaintiff was in hospital, or in rehabilitation. In those circumstances, I do not propose to allow that part of her claim.

The plaintiff then claims past domestic assistance at 49 hours per week. In the first of her reports, Ms Geach estimated assistance on the basis of 7 hours per week. [130] In her second report, this estimate was increased to 29 hours per week. [131] Ms. McLaughlin, who reported for the defendant, estimated between 3.5 and 6 hours of care per week over varying periods. [132]

In my view, taking into account the whole of the evidence, a period of 10 hours per week should be allowed, calculated as follows:

The plaintiff has claimed further domestic assistance on a paid commercial basis of 29 hours per week. There was an issue raised between the Occupational Therapists as to the necessity for an alarm for the plaintiff in the event that she fell and somebody needed to be alerted. In my view, that can be subsumed in the cost of care which I allow at 10 hours per week.

I make the following orders: