Scarlett Anne Robinson bhnf Athony James Robinson v Riverina Equestrian Association

1. [1]

   This is an application by the defendants to join the plaintiff’s mother as a cross-defendant.

2. [2]

   The plaintiff is Scarlet Robinson. Her tutor is her father Anthony Robinson. The second defendant is Equestrian Australia Limited. The third defendant is Charles Sturt University. The fourth defendant is Chloe Mannell. By her tutor, Anthony Robinson, her father, the plaintiff commenced proceedings in the District Court of NSW on 2 November 2020 against the first defendant, Riverina Equestrian Association, the second defendant, Equestrian Australia, the third defendant, Charles Sturt University and the fourth defendant, Chloe Mannell.

3. [3]

   The first and second defendants were duly incorporated associations who conducted equestrian competitions in New South Wales such as the New South Wales Country Show jumping Championship of 4 November 2017.

4. [4]

   The third defendant had the care, control and management of premises known as Charles Sturt University, Wagga Wagga.

5. [5]

   The fourth defendant was the rider of a horse on 4 November 2017 at Charles Sturt University, Wagga Wagga.

6. [6]

   By notice of motion filed on 16 September 2022, the defendants relevantly seek orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) rule 9.1(1) that leave be granted for the four defendants to file and serve the proposed amended cross-claim (‘PAXC’) against the plaintiff’s mother, Melissa Robinson.

7. [7]

   Both the plaintiff and the proposed cross-defendant oppose the orders sought.

8. [8]

   The plaintiff/the proposed cross-defendant oppose the motion on the basis that:

9. [9]

   I shall deal with the related issues (a) and (b) together followed by (c).

10. [10]

    On 23 February 2023, the matter was part heard. I granted an adjournment as the plaintiff was only served with the Notice of Motion seeking to file a cross-claim on the plaintiff’s mother as cross-defendant an opportunity to be heard. When the hearing resumed on 21 April 2023, she was legally represented and relied upon her affidavit dated 21 April 2023, where she deposed:

Background

1. [11]

   On 4 November 2017, when the plaintiff was 4 years old and in the company of her mother, the proposed cross-defendant and other family members. They attended the New South Wales Country Show Jumping Championships organised by the first and second defendants and held at the Equestrian Centre, Charles Sturt University.

2. [12]

   After entering the premises, and while standing beside a roadway in an area designated for the parking of horse floats, a horse ridden by the fourth defendant was ridden in close proximity to where the plaintiff and her mother were standing. Something occurred to startle the horse and it reversed at speed in the direction of the family, who were standing about 10 metres from where the horse commenced its movement, colliding with the plaintiff and falling on her.

3. [13]

   The plaintiff suffered severe personal injuries including a complex fracture at the base of her skull.

4. [14]

   On 2 November 2020, the plaintiff, by her tutor, filed a statement of claim in the District Court of NSW alleging personal injuries arising from the incident on 4 November 2017.

5. [15]

   All of the defendants deny they are liable for the plaintiff’s injuries, loss and damage as alleged in the claim and rely upon their respective defences to the claim filed on 24 January 2022.

6. [16]

   On 4 April 2022, by way of summons, the plaintiff sought leave to transfer proceedings numbered 2020/00313256 filed in the District Court to this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW) (‘CPA’). The application was opposed.

7. [17]

   On 19 July 2022, Walton J made orders to transfer the proceedings.

8. [18]

   An application for infant approval came before Campbell J on 23 November 2022. His Honour did not approve the settlement pursuant to s 76 of the CPA.

9. [19]

   There has been an unfortunate procedural history concerning the filing of the PAXC and the correspondence concerning the filing of the cross-claim.

10. [20]

    The timetable directions in the District Court and the Supreme Court and lack of steps taken by the fourth defendant’s solicitor in relation to the defence and cross-claim are set out as follows:

11. [21]

    See also Ex D4/2 for insurer’s involvement.

Proposed amended cross-claim

1. [22]

   The proposed amended cross-claim (‘PAXC’) relevantly pleads as follows:

The law

1. [23]

   Section 22(2) of the CPA reads:

2. [24]

   UCPR r 9.1(1) relevantly provides that a party may make a cross claim in proceedings commenced by statement of claim within the time limited for the party to file a defence. UCPR r 9(1) reads:

3. [25]

   The time for filing a defence is 28 days after service of the statement of claim or such other time as the court directs: UCPR r 14.3(1).

4. [26]

   UCPR 14.3(1) reads:

5. [27]

   Sections [56]-[59] of the CPA read:

Explanation of delay

1. [28]

   The explanation for delay given is by Mitchell Stein, solicitor for the defendants in his affidavit dated 15 September 2022. Where he deposes:

2. [29]

   In Credit Solutions Group Pty Ltd v Obelisk Ventures Pty Ltd (No 2) [2019] NSWSC 488, Davies J said at [32] and [34]:

3. [30]

   In ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA 167, Hodgson JA (with whom Handley JA agreed) said at [30]:

Defendants/Cross-claimants’ submissions

1. [31]

   The defendants/cross-claimants refer to ss 56 to 60 of the CPA which are relevant and that the issuing of the cross claim is actually consistent with the overriding purpose of the Act, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

2. [32]

   The plaintiff’s mother is almost likely going to be a witness in the plaintiff’s case and the issuing of the cross-claim will not affect the expedition conduct of the proceedings.

3. [33]

   The defendants/cross-claimants concede that prima facie, there would be nothing to prevent the defendants form issuing separate proceedings seeking indemnity or contribution or both from the proposed cross-defendant. However, in the interests of justice, and in accordance with the overriding principles in s 56 of the CPA, it was submitted that the proper course would be to permit the issuing of the cross-claim in these proceedings, particularly given the plaintiff’s mother is almost certainly going to give evidence at the hearing.

4. [34]

   The defendants/cross-claimants also submit that the proceedings in the Supreme Court are likely now to be placed in the not ready or inactive list given the plaintiff’s age and the likely time period that needs to elapse before any further neuropsychological assessment is to be undertaken in accordance with Dino Cipriani’s report.

5. [35]

   According to the defendants/cross-claimants, it is going to be a number of years before further testing can be undertaken on the evidence. He noted that the whole point of transferring the proceedings from the District court to the Supreme Court was based on the report of Dino Cipriani dated 18 December 2021, served by the defendants who raised this cognitive issue but said it will take some time to actually know with some degree of confidence if there is in fact some permanent damage (T.42-50).

6. [36]

   Counsel for the cross-claimants presumed that the plaintiff would not commence high school for another three years, because she is only ten and has got another six years of high school if she goes through to the HSC. Counsel noted that this would not cause real prejudice to the plaintiff as there is no delay caused by the joinder of the cross defendant. Nor has anything changed in the period of time since the orders were first made by the District Court.

7. [37]

   A related factor to be considered as to why leave ought to be granted is found in section 50C of the Limitation Act 1969 (NSW). Section 50C(1)(b) reads:

8. [38]

   Subsection 50C1(b) of the Limitation Act provides a twelve year long-stop limitation period that may impact upon the defendant's entitlement to bring separate proceedings. Counsel for the defendant argued that this would in contravention of section 50 and 60 of the CPA.

9. [39]

   Counsel for the defendants argued that section 50C(1)(b) of the Limitation Act 1969 (NSW) would significantly prejudice the defendants, because they would be prevented from bringing a claim. If the plaintiff had to go to year 12 that would be by 2032 and the 12 year long-stop limitation period would have already expired at least three years beforehand.

10. [40]

    In contrast, it was submitted that there would be no prejudice to the plaintiff whether the cross claims were issued in time, in accordance with the previous order made by the District Court, or whether leave is granted now and it was that this case remains in abeyance.

Plaintiff/Cross-defendant’s submissions

1. [41]

   Prima facie, the defendants/cross-claimants made an informed decision to allow the time period to file a cross claim to expire.

2. [42]

   The court has the discretion to permit cross-claims to be filed outside the time period permitted by UCPR 9.1(1). The direction is conferred by the rule itself, as well as UCPR 1.12, which provides a general power on the court to extend or abridge time.

3. [43]

   The court’s direction must be exercised judicially and in such a way as to ensure no prejudice is suffered by the potential cross defendant as a result of the late joinder.

4. [44]

   Counsel for the proposed cross-defendant argued that it is difficult to conceive that other witnesses may not now be available to be contacted as these proceedings were originally commenced in 2020. Rather, it was argued that one would have expected that the defences should have been filed in late 2020 or perhaps early in 2021.

5. [45]

   The cross-claimants have been represented by Hall & Wilcox since the commencement of proceedings. In the circumstances, these are not defendants who have not had the benefit of legal advice. Based on Mr Stein's affidavit, they have considered whether to put a cross‑claim on and they made a tactical decision not to do so. If that is the case, it is the cross-defendant’s submission, that it is only in rare circumstances that they should be afforded the opportunity at this stage of the proceedings. The cross-defendants submit that these circumstances do not fall within the “rare” category and are not rare.

6. [46]

   Mr Stein's affidavit does not provide any satisfactory explanation for the delay in these proceedings, not only from the first order in December of 2020, which was with respect to putting on any cross‑claim, nor from the date that they did file the defences in January of 2022. In fact, they had notice from April of 2022 that there was a chance that these proceedings would be transferred to the Supreme Court.

7. [47]

   Counsel for the cross-defendant noted that the first notice of any intention to file a cross‑claim was not received by the plaintiff until 23 August 2022, some months later. It took a further three weeks for the notice of motion to be filed. It is apparent on the evidence that the proposed cross‑defendant was only served this year. It would be difficult to frame the defendants' actions as having the required expedition that would allow the Court to exercise its discretion. In the cross-defendant’s submission, this tardiness militates against the Court exercising that discretion in these proceedings.

Resolution

1. [48]

   It is my view that during the period between 9 December 2020 to 2 September 2022, despite much correspondence by the defendants’ solicitors, the insurer or the defendants did not give instructions to file a cross-claim. It was not until 22 September at the earliest instructions were given. The defendant’s solicitors first sought advice from the defendants’ about issuing a cross-claim on 30 June 2021, 30 June 2022, 20 July 2022, 22 July 2022, 25 July 2022, 2 August 2022, 23 August 2022, 26 August 2022 and 2 September 2022 and corresponded with the defendants and insurer concerning the filing of a cross-claim.

2. [49]

   While I accept there was a limited period when settlement negotiations were being conducted, this does not excuse the defendants from their otherwise contumelious delay in filing the cross-claim.

3. [50]

   On 16 September 2022, a Notice of Motion of filed by the defendants seeking leave to file a PAXC. From the chronology of directions set out earlier in this judgment, it can be seen that the defendants failed to give instructions to their solicitor to file a cross-claim. They then failed to comply with Court directions to file a cross claim. They then failed to comply with Court directions to file a cross-claim stemming from 9 December 2020 to 16 September 2022, a period of almost two years. By 30 July 2022, the defendants’ solicitor contacted its client concerning the cross-claim. Eventually, on 23 August 2022, the defendants sent the plaintiff a copy of the proposed cross-claim.

4. [51]

   Finally, on 16 September 2022 the defendants filed a notice of motion seeking to file the cross-claim.

5. [52]

   I am of the view that the insurer and/or the client first was given advice concerning the cross-claim on 9 December 2020, but chose not to give instructions to file it until 2 August 2022 – a delay of nearly 2 years. The insurer and/or the client made an informed and tactical decision not to file the cross-claim in accordance with the directions of both the District and Supreme Courts. In these circumstances, I find the defendants explanation for delay is unsatisfactory in filing the cross-claim in the time provided by the UCPR. I also find the defendants/cross-claimants explanation for delay as to why the cross-claim was not filed in accordance with the orders of both the Supreme and District Courts most unsatisfactory.

(c) Whether the cross-defendants duty of care has properly been identified?

1. [53]

   At paragraph [11] of the proposed cross-claim, it is relevantly pleaded that the cross-defendant was a parent and guardian of the plaintiff, (which is not in dispute), but further, that at all relevant times had a duty of care to ensure the safety of the plaintiff.

2. [54]

   The cross-defendant submitted that the scope and content of such a duty of care is not clear from the pleading itself.

3. [55]

   As was noted by Basten JA in Hoffman v Boland [2013] NSWCA 158 (‘Hoffman’) at [27] and [28]:

4. [56]

   Basten JA in Hoffman quoted McCurdy in "Torts Between Persons in Domestic Relation", 43 Harvard L Rev 1030 at 1077 (1929-1930) at [32]:

5. [57]

   His Honour continued at [37]:

6. [58]

   Sackville AJA (with whom Barrett JA agreed) said at [113], [117] and [123]:

7. [59]

   The cross-claim should identify the scope and content of the duty of care of the cross-defendant and in what manner that duty was breached. The cross-defendant submitted that the particulars within the cross-claim at paragraph [19] are so general as to not provide any information as to the content of the duty and in what manner it was breached.

8. [60]

   The cross-defendant submitted that it is difficult to conceive of a parent who would actually be able to comply with such a duty of care with respect to their children. Counsel suggested that the cross claim would almost suggest that a parent is always liable for a third party's actions that would injure their child and that simply could not be the case at law.

Resolution

1. [61]

   I refer to paragraphs [11], [12], [13] and [15] of the PAXC, as set out earlier in this judgment.

2. [62]

   In 2017, the plaintiff and her mother were standing at the side of an access road adjacent to which cars or horse floats were parked. While the plaintiff was standing on the road with her mother, the fourth defendant on a horse rode to a position which was a short distance from the plaintiff.

3. [63]

   While the fourth defendant on her horse was stationary at the side of the roadway, another horse approached the fourth defendant and the fourth defendant’s horse and at and about the same time the fourth defendant’s horse commenced to move backwards towards the plaintiff.

4. [64]

   In moving backwards, the fourth defendant’s horse collided with the plaintiff and fell on to the plaintiff resulting in injury. The risk of harm comprised the risk of the plaintiff coming into contact with a horse which was not under control and was not separated from members of the public. The fact that the horse riders were not separated from the public is not the mother’s responsibility.

5. [65]

   It has been held that a grandparent was negligent in circumstances where he called the grandchild across the road by saying “I am over her Anne”. The situation here is very different. The rider lost control of her horse, such that the horse moved backwards and collided with the plaintiff. It is difficult to envisage how the plaintiff’s mother owed a legal duty of care for her daughter in these circumstances.

6. [66]

   In other words, looking at the strength of the cross-defendants cross-claim, it is my view that it is unlikely to succeed at trial. If it did, this would mean that a parent attending a sporting event as a spectator with their child or children could be held liable for a breach of a duty of care that rises above the normal duty of care a parent has to their child.

7. [67]

   I accept that Dino Cipriani, psychologist, in his report dated 18 December 2021 opined that it is premature to offer an opinion on whether there will be permanent cognitive and academic effects as this might only become evident during high school and prognosis appears favourable at this stage. Scarlett will require a further assessment at the time of transfer to high school.

8. [68]

   The plaintiff has a twin sister so she can provide some guidance as to whether the plaintiff will suffer permanent cognitive and academic effects from the incident. It may well be that the case will be ready for trial sometime during her high school years.

9. [69]

   The defendants/cross-claimants submitted that they may be out of time to take proceedings against the mother if the plaintiff succeeds against them at trial. Then the defendants could file a statement of claim against the plaintiff’s mother if the plaintiff succeeds against them by filing a Statement of Claim with the plaintiff’s mother as defendant. While they say that the Limitation Act causes prejudice to them as they may be out of time to bring an action against the proposed cross-defendant.

10. [70]

    In my view, there is a very small risk that the plaintiff/cross-defendant would be statute barred. This is because Dino Cipriani says the plaintiff is doing well and needs to be further assessed at the time of transfer to high school. That is in three years’ time. Even allowing for a few more years for the plaintiff’s condition to stabilise, it is still unlikely the defendants’ claim will become statute barred.

11. [71]

    I have also taken into account the number of times that the defendants’ solicitor advised the insurer and/or clients of the need to file a cross-claim and that advice was ignored. Another factor in the exercise of my discretion, is the additional emotional effect will have on the plaintiff’s mother if she is joined as a cross-defendant. Her evidence has been set out earlier in my judgment. In addition, it will lengthen the trial, as the other spectators who witnessed the accident, who can give an account of the layout of the roadway and the parking of the cars and horse floats may need to be called to give evidence. Expert evidence as to the safety of the layout may need to be obtained.

12. [72]

    In the exercise of my discretion, the facilitation of the just, quick and cheap resolution of the real issues in these proceedings dictate that I refuse to grant leave to the defendants’ to file the PAXC.

Costs

1. [73]

   Costs are discretionary. Costs follow the events. Cross-claimants/defendants are to pay the cross-defendants costs.

   1. (1)

      Leave to the defendants to file the proposed amended cross-claim is refused.

   2. (2)

      The defendants/cross-claimants are to pay the proposed cross-defendants’ costs.