Robinson v Riverina Equestrian Association

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

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

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

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

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

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

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

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

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

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

I make the following orders: