Court of Appeal

Supreme Court

New South Wales

Case Name: Fairall v Hobbs

Medium Neutral Citation: [2017] NSWCA 82
Hearing Date(s): 24 March 2017
Decision Date:

Before: McColl A/P at [1];

Leeming JA at [9];
Payne JA at [16].
Decision: (1) Appeal allowed.
(2) Set aside the orders of the primary judge of 26
May 2016 and in lieu thereof make the following
orders:
(a) amended statement of claim dismissed;
(b) respondent to pay the appellants costs as agreed
or assessed.
(3) Respondent to pay the appellants costs of the
appeal as agreed or assessed.
(4) Notice of cross-appeal dismissed with costs.
Catchwords: TORT negligence motor vehicle accidents
respondent thrown from horse while riding along side
of road whether primary judge erred in finding motor
vehicle owned by first appellant and driven by second
appellant caused the respondents horse to shy and
buck whether there was a motor accident under
the Motor Accidents Compensation Act whether
primary judge erred requirements in ss 5B or 5D of
the Civil Liability Act whether blameless motor
accident
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
District Court Act 1973 (NSW)
Evidence Act 1995 (NSW)
 Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR
420; [2009] HCA 48
Awad v ISPT Pty Ltd & Jones Lang LaSalle (NSW) Pty
Ltd & Glad Cleaning Services Pty Ltd (No 1) [2015]
NSWDC 329
Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA
311
Colonial Sugar Refining Co Ltd v Attorney General for
the Commonwealth (1912) 15 CLR 182
Flowers v SAS Trustee Corporation [2015] NSWDC
275
Garzo v Liverpool / Campbelltown Christian School.
[2012] NSWCA 151
Miller; Miller v Lithgow City Council (2015) 91 NSWLR
752; [2015] NSWCA 320
Nominal Defendant v Hawkins [2011] NSWCA 93
Nominal Defendant v Ismail [2014] NSWCA 432
Reid v Commercial Club (Albury) Ltd [2014] NSWCA
98
Rook v State of New South Wales (No 3) [2015]
NSWDC 154
RTA v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sargood Brothers v Commonwealth (1910) 11 CLR
258
Shoalhaven City Council v Pender [2013] NSWCA 210
Tito v Waddell (No 2) [1977] Ch 106
Uniting Church in Australia Property Trust (NSW) v
Miller; Miller v Lithgow City Council (2015) 91 NSWLR
752; [2015] NSWCA 320
Waterside Workers Federation of Australia v J W
Alexander Ltd (1918) 25 CLR 434
Category: Principal judgment
Parties: Carolyn Maree Fairall (First appellant)
Holly Lee Fairall (Second appellant)

Anthony Hobbs (Respondent)

Representation: Counsel:
Keith Rewell SC with Ben Wilson (Appellants)
Ian Roberts SC (Respondent)

File Number(s):
Decision under appeal:
Court or Tribunal:
Jurisdiction:
Citation:
Date of Decision:
Solicitors:
Hall & Wilcox (Appellants)
Walsh & Blair Lawyers (Respondent)
2016/186993
District Court of New South Wales
Civil
[2016] NSWDC 116

Before: Neilson DCJ

File Number(s): 2014/179721

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the
Court otherwise orders, a judgment or order is taken to be entered when it is
recorded in the Court's computerised court record system. Setting aside and
variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and
36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Decision under appeal

JUDGMENT
1 McCOLL A/P: I have had the benefit of reading Payne JAs reasons in draft. I
agree with his Honours reasons and the orders his Honour proposes. I make
the following additional observations.

2 The trial of this matter took six hearing days in the Wagga Wagga sitting of the
District Court in May 2016. On the final day, 12 May 2016, the matter was
adjourned to Monday 23 May 2016, apparently in Sydney. On that day,
according to the appellants chronology, the primary judge commenced
delivering his reasons, a process which, according to his Honour, took 17
hours1 and was completed on 26 May 2016. As finally settled, the reasons are
138 pages long. As directed by his Honour on 12 May 2016, the parties

1 Hobbs v Fairall [2016] NSWDC 116 (at [271]).

 arranged for agents to be present for the delivery of his Honours reasons. In
the ordinary course, such agents would be legal practitioners.

3 There is no explanation in either the transcript of the hearing, or the primary

judges reasons, as to why his Honour delivered a judgment of such length
while sitting in court, rather than, as is customary with a judgment of such
length, handing down written reasons.

4 I accept that not all members of the judiciary have access to the same
resources and that, at times, exigency may require the delivery of quite
extensive reasons in a court sitting. However, nothing on the face of these
proceedings indicated any such necessity. It is difficult, with respect, in such
circumstances, to justify the utilisation of judicial resources, court resources, let
alone the costs burden imposed on the parties, and the time lost to the legal
practitioners present in court by this exercise. Devoting four days to the oral
delivery of a judgment cannot, with respect, be consistent with the overriding
purpose in s 56 of the Civil Procedure Act 2005 (NSW) insofar as that requires
the quick and cheap disposition of proceedings nor can it, in any event, be a
useful deployment of judicial resources in a busy trial court. I also agree with
Leeming JA's observations concerning the delivery of his Honour's reasons.

5 It is also of concern, as Payne JA has pointed out, that the primary judge
made, at best, minor reference in his reasons to the framework within which
the legal questions posed for consideration fell. Although the case concerned a
motor accident case, a phrase defined in s 3 of the Motor Accidents
Compensation Act 1999 (NSW) (MACA), the proceedings were also governed
by Pt 1A (Negligence) Divs 1 4 and 8 of the Civil Liability Act 2002 (NSW)
(Liability Act).2 His Honour referred to s 5D which appears in Pt 1A, Div 3
(Causation) as a defence. It is not as is made apparent by s 5E which
provides that [i]n proceedings relating to liability for negligence, the plaintiff
always bears the onus of proving, on the balance of probabilities, any fact
relevant to the issue of causation.

6 As Payne JA has explained, recourse to those provisions (and the anterior

consideration of the duty of care the appellants owed the respondent) were

2 See Liability Act, s 3B(2)(a).

 essential to determine the case in the relevant statutory context. Thus,
identification of the duty of care the appellants owed the respondent in the
circumstances was the first step in examining the appellants potential liability
through the spectrum afforded by the definition of motor accident and the
application of the provisions of the Liability Act which apply to the issues of
breach and causation (and any others the appellants may have pleaded in their
defence) and, insofar as contributory negligence was concerned, s 138 of the
MACA and Div 8 of the Liability Act.

7 The primary judge did not refer to any of those provisions but, as Payne JA has
said, referred at the conclusion of his reasons, in passing, to the Liability Act as
to which his Honour said he was unmoved by the defendants reliance upon
[its] various provisions.3

8 The appellants counsel at trial referred to the Liability Act in his written
submissions and, in the course of oral submissions, both counsel made
submissions about s 3B of the Liability Act and the provisions of that Act which
applied to proceedings ostensibly governed by the MACA. This should not
have been necessary but, in any event, it did not sway the primary judge to
advert to its provisions. There may be legislation to which it is necessary to
refer a primary judge but, at this stage, 15 years after its passage, an Act such
as the Liability Act which applies to numerous cases which come before the
courts should be common knowledge to trial judges and frame the course of
their reasons.

9 LEEMING JA: I agree with the reasons of Payne JA, and with the orders his
Honour proposes. I wish to make a further comment, echoing an observation
made by the presiding judge.

10 The primary judge delivered his reasons orally over some three and a half
days. Two centuries ago, all judgments were delivered orally. A century later,
the tradition was in the process of being substantially eroded, but there were
occasions when even extensive and important judgments were delivered orally.
One example was Duncan v State of Queensland (1916) 22 CLR 556, a highly
controversial decision on s 92 of the Constitution, argued over 12 days

3 Primary judgment (at [276]).

 between 21 September and 9 October, with reasons delivered on 25 October
1916 occupying 83 pages of the Commonwealth Law Reports. Yet that
judgment, and those in other large and important appeals such as Sargood
Brothers v Commonwealth (1910) 11 CLR 258, Colonial Sugar Refining Co Ltd
v Attorney General for the Commonwealth (1912) 15 CLR 182 and Waterside
Workers Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, was
delivered in a single day.

11 Oral delivery of reasons occupying more than one day was, and is, extremely
unusual. Tito v Waddell (No 2) [1977] Ch 106, a decision of the first order of
importance in private law and constitutional law, was argued before Megarry
VC over 100 days in 1975 and 1976, and his Lordship delivered reasons
occupying just over four days from Monday 29 November 1976 spilling into
Friday 3 December 1976. Those reasons occupy 218 pages of the law reports,
and are regularly cited today. It had been an exceptionally long trial, but even
so delivering judgment over just over four days was exceptional. Until I
encountered this appeal, I was unaware that there were modern counterparts.

12 The judgment from which this appeal has been brought is extremely important
to the litigants, but falls into an entirely different category from those mentioned
above. And times have changed.

13 It is difficult to see how the efficient disposal of the business of the court and
the efficient use of available judicial and administrative resources are promoted
by oral delivery of reasons over four days, although these are matters to which
s 57(1)(b) and (c) of the Civil Procedure Act 2005 (NSW) require courts to have
regard. There is a public cost in taking that course, in that a courtroom and
court officers and court reporters are made unavailable for the hearing of other
cases. There is a private cost, borne by both parties but in large measure by
the losing litigant, of paying for representatives to attend over four days. And it
is difficult to see how the overriding purpose of facilitating the just, quick and
cheap resolution of proceedings is consistent with giving oral judgment over
four days.

14 There are further considerations which are real, notwithstanding that they
cannot be measured in money. Mr Hobbs could not, until the third day, have
 known whether he had won or lost. It was not until the fourth day that he could
have known the extent of his damages. Likewise, it was not until the third day
that Ms Fairall learned that the primary judge had declined to accept any of her
evidence save for admissions against interest. Litigation is stressful to litigants,
and it is easy to see how the course taken by the primary judge may have
increased that stress.

15 There may be reasons not known to this Court for the course taken by the
primary judge. But it appears not to be an isolated case: see Awad v ISPT Pty
Ltd & Jones Lang LaSalle (NSW) Pty Ltd & Glad Cleaning Services Pty Ltd
(No 1) [2015] NSWDC 329 (four days); Rook v State of New South Wales (No
3) [2015] NSWDC 154 (four days); Flowers v SAS Trustee Corporation [2015]
NSWDC 275 (three days). Prima facie, the course taken causes me to share
McColl APs concern as to whether, having due regard to the important right of
judges to deliver reasons in the manner they regard as the most appropriate in
accordance with their office, there may not be a different approach which better
accords with what is mandated by the Civil Procedure Act and which better
enhances the administration of justice.

16 PAYNE JA: This is an appeal from a decision of the primary judge delivered ex
tempore over four days in May 2016.

Background
1 On 24 September 2011, Mr Anthony Hobbs (the respondent), suffered injuries
when he was thrown from a horse he was riding on Cooramin Street in north
Wagga Wagga.

2 The respondent was riding his horse, Buck, (a horse he described as traffic
trained) in a westerly direction along Cooramin Street, on the grassed area
just off the southern edge. At the same time, Ms Holly Lee Fairall (the second
appellant), was driving a motor vehicle owned by her mother Mrs Carolyn
Maree Fairall (the first appellant) in an easterly direction along Cooramin
Street, on the opposite side of the road from the respondent and the horse. Mr
Moore, the second appellants fianc, was a passenger in the vehicle. Around
the same time, Mr Joshua Duck was riding a motorcycle some distance behind
the appellants vehicle.
 3 The speed limit on that part of Cooramin Street where the incident occurred
was 50 km per hour. On the section of Cooramin Street where the second
appellant was driving from, the speed limit was 80 km per hour. The second
appellant had turned onto Cooramin Street from a side street. The respondent
gave evidence at trial that he saw her vehicle turn into Cooramin Street, but
lost sight of the vehicle (which was travelling uphill) until all of a sudden it just
turned up in my face.

4 At about the time that the appellants car passed the respondent and Buck, the
horse froze and subsequently began to buck and moved across the road in a
generally northerly direction. When Buck reached the kerb and gutter on the
northern side of the road, the respondent was dislodged from the saddle,
landing on the concrete kerb and gutter which caused him to suffer injuries.

5 The respondent made a claim to recover damages pursuant to the Motor

Accidents Compensation Act 1999 (NSW) (MACA). The case advanced by the
respondent before the primary judge was that as a consequence of the
negligence of the second appellant, the respondent suffered serious injuries.
Alternatively, the respondent claimed that as a consequence of a blameless
motor accident, he suffered serious injuries. In both instances the
respondents case was contingent on the primary judge being satisfied that the
incident was a motor accident as that term is defined in s 3 of the MACA.

6 The appellants denied that the accident was a motor accident as defined,
contending it was not caused by the negligence of the second appellant during
the driving of the vehicle. The critical factual issue before the primary judge
was whether the driving of the vehicle caused the respondents horse to buck,
(which it was accepted turned on the speed at which it was being driven and its
proximity to the horse) and the respondent to suffer injury. The second
appellant and her passenger said she was driving at 40 km per hour when she
passed the appellant. She argued the respondent had no opportunity to assess
the speed of her vehicle, as he did not see it until the last minute.

The primary judgment

1 The primary judge upheld the respondents claim. His Honour was satisfied
that the accident was a motor accident within the meaning of the MACA. His
 Honour found in favour of the respondent, essentially because he held that:

1 the second appellant was driving at an excessive speed, somewhere in

between 60 and 70 km per hour, when she passed the respondent on
his horse; and
2 although the second appellant was on the opposite side of the road to
the respondent and his horse, the second appellant owed the
respondent a duty of care to move further to her left, towards the kerb
and gutter on the northern edge of Cooramin Street, as she passed the
horse.
1 In making the first finding, as to the speed of the appellants vehicle, the
primary judge relied on an estimate of its speed given by the respondent which
he had said during the trial he would place no weight upon, and which was not
pressed by the respondents counsel.

2 Consistent with the findings as to the second appellants driving, the primary
judge found that the accident was not a blameless motor accident, because it
was caused by the negligence of the second appellant. The primary judge was
also satisfied that the respondent was guilty of contributory negligence by
failing to keep the vehicle in sight.

3 Damages were assessed in the sum of $484,632, which were reduced by 30%
for contributory negligence. His Honour awarded the respondent $339,242.40.
The assessment of damages was not challenged in this appeal.

4 Other than a passing reference at the end of his lengthy reasons, his Honour
did not address the requirements of those parts of the Civil Liability Act 2002
(NSW) which apply to the MACA, nor s 138 of the MACA (Contributory
negligence-generally), despite being referred to them by counsel appearing for
the appellants at trial.

The relevant statutory provisions

1 A motor accident is defined in s 3 of the MACA:

motor accident means an incident or accident involving the use or

operation of a motor vehicle that causes the death of or injury to a person
where the death or injury is a result of and is caused (whether or not as a
result of a defect in the vehicle) during:
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicles running out of control, or
 (d) a dangerous situation caused by the driving of the vehicle, a collision or
action taken to avoid a collision with the vehicle, or the vehicles running out of
control.
1 Further, s 3A of the MACA provides:

(1) This Act (including any third-party policy under this Act) applies only in
respect of the death of or injury to a person that is caused by the fault of the
owner or driver of a motor vehicle in the use or operation of the vehicle and
only if the death or injury is a result of and is caused (whether or not as a
result of a defect in the vehicle) during:
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicles running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or
action taken to avoid a collision with the vehicle, or the vehicles running out of
control.

(2) This Act (including any third-party policy under this Act) does not apply in
respect of an injury that arises gradually from a series of incidents.
1 A blameless motor accident is defined in s 7A of the MACA:

blameless motor accident means a motor accident not caused by the fault
of the owner or driver of any motor vehicle involved in the accident in the use
or operation of the vehicle and not caused by the fault of any other person.
1 A successful motor accident claim entitles the plaintiff to damages under Div 1
of Part 1.2 of the MACA. Relevantly, Divisions 1-4 and 8 of Part 1A
(Negligence), and in particular ss 5B and 5D of the Civil Liability Act also apply
to the MACA. This Court has emphasised on numerous occasions the
importance of close attention to these provisions in pursuing negligence claims.
Despite this, the amended statement of claim in the present case contained no
reference to ss 5B or 5D of the Civil Liability Act. The appellants defence
referred to those provisions. The written submissions of the respondent
referred to those sections, incorrectly, as providing defences.

The issues on this appeal

1 The appellant appeals as of right pursuant to s 127 of the District Court Act
1973 (NSW). An amended notice of appeal was filed on 30 August 2016.

2 The appellant relies on 12 grounds of appeal, 10 which address the primary

judges principal findings and grounds 6 and 12 which address the blameless
motor accident issue which I will deal with later in these reasons. Stripped to
 their essentials, the 10 grounds of appeal address:

1 the findings of the primary judge about the speed and proximity of the
appellants vehicle to the respondent and Buck (grounds 7-8);
2 the absence of analysis or findings by the primary judge about the
requirements of s 5B of the Civil Liability Act and any posited duty of
care (ground 9-11); and
3 the absence of analysis or findings by the primary judge about the
requirements of s 5D of the Civil Liability Act and the issue of causation
(grounds 1-5).
1 By notice of contention, the respondent sought to maintain the verdict by
seeking a finding that he suffered loss and damage by reason of a blameless
motor accident.

2 A cross-appeal filed by the respondent addressing the issue of contributory

negligence was not pressed before this Court.

Grounds 7-8 the speed and proximity of the appellants vehicle

1 The primary judge regarded the speed at which the vehicle was travelling as a
critical issue in his Honours finding of negligence. It was the first issue dealt
with by the parties on this appeal and for that reason I will deal with it first as
well.

Appellants submissions
1 The appellants submitted that there was no physical evidence from which the
speed of the vehicle could be deduced or inferred. The appellants submitted
that the primary judge erred in giving any weight to the respondents
impression that the vehicle was going probably 60 to 70 km per hour as it
passed the respondent and his horse, as the respondent did not see the
vehicle until it was in his face.

2 Further, the appellant submitted that there was no sound basis to reject the
evidence of the second appellant or Mr Moore, both of whom were adamant
that the vehicle was going no more than 40 km per hour when approaching and
passing the respondent and his horse.

Respondents submissions
1 In writing, the respondent submitted that the primary judge correctly accepted
the respondents evidence on this issue for the following reasons, which were
 that the respondent:

1 was an experienced horse rider; and

2 had life experience such that he had an intimate personal knowledge of
how horses, including Buck, would behave in certain circumstances.
1 The respondent submitted, without elaboration, that the primary judge was
entitled to reject the second appellants evidence on the speed issue. The
respondent also submitted that the primary judge was correct in accepting that
there had been some telescoping of events in Mr Moores memory.

2 In oral submissions about the speed of the vehicle senior counsel for the
respondent submitted that:

1 he could not defend the exercise the primary judge undertook in the
critical paragraph [153] where his Honour accepted the evidence of the
respondent that the second appellants car was travelling at a speed of
60 to perhaps 70 km per hour;
2 the issue of the speed of the vehicle was canvassed in other evidence
in cross-examination of the respondent; and
3 the car must have been going at more than 40 kilometres an hour to
have caused this horse to react the way it did.
Consideration of grounds 7- 8 the speed and proximity of the appellants vehicle
1 The primary judge found, in a number of passages which I will recount in full,
that the appellants vehicle was travelling at a speed of 60 to 70 km per hour:

[153] I accept, therefore, that prior to reaching the speed signs, the second
defendant's vehicle was travelling at 60 kph. I do not accept that, when she
approached the speed signs she either applied the brake, lowered the gear or
even eased off the accelerator. I accept the evidence of Mr Moore that nothing
happened at that place. Mr Moore said at T365.08, You'd have to floor it to get
it up a hill. If that be the case, then the second defendant must have been
accelerating the vehicle to the maximum possible to ascend the incline on
Cooramin Street. When she reached the crest, and the angle of the incline
reduced, unless she eased off the accelerator, then the speed of the vehicle
would have increased. Unless prior to reaching the tree, that is the datum in
this case, the second defendant eased off the accelerator or braked, then one
would expect her speed to increase beyond 60 kph perhaps to get to 70 kph.
That ties in with the impression formed by the plaintiff recorded at T77.45 that
it was going probably 60 to 70 kilometres an hour at that particular stage.

[156] I have come to the view that it was likely that his attention was drawn to
the plaintiff by the second defendant only after she had completed the ascent
of the incline and was on the relatively flat area which one can see in exhibits
E and F. In other words, the second defendant was probably approaching 70
kph prior to being about 25 metres from the plaintiff; that is, to the west of the
commencement of the kerbing and guttering. She then eased off her speed.
How she did that I do not know but clearly Mr Moore thought it odd that she
should be reducing her speed. There is only evidence from Mr Moore of one
movement to the left of the carriageway and I believe that could only be after
the second defendant reached the area where there is kerbing and guttering,
23.5 metres west of the tree.

[159] Accepting that there was no decrease in speed at the speed signs and
that the second defendant maintained acceleration beyond the speed signs
and after the crest, and onto the relatively flat area of Cooramin Street, I
accept that the second defendant probably reached a speed around 70 kph. I
accept that there was some deceleration but given the distance involved I do
not believe it would have dropped below 60 kph when the second defendant's
vehicle passed the plaintiff on her right, and the tree on her left. I accept the
evidence of the plaintiff that as this vehicle was driving past him the horse
froze and immediately after it had gone past, which would have been in the
blink of an eye, the horse commenced to buck and although it did not go at 90
degrees away from the car, it headed away from the car at 45 degrees,
towards the direction of the motorcycle.
[160] Mr Roberts submitted that I can give some weight to the plaintiff's
evidence about speed. His written submissions are MFI 8. At [16] he submitted
this:
On the issue of the speed which the defendant's vehicle was
travelling, the plaintiff's evidence was understandably somewhat
vague. He did not have a great opportunity of estimating its speed.
Nonetheless his estimate is in evidence and may be taken into
account. He said, when asked whether he agreed with the suggestion
that the car was travelling at 40 kph as it came towards him and past
him, that he did not believe it was going that slowly, and he thought it
was going faster than that, and probably 60-70 kph, and he added the
explanation that he believed that if the vehicle had been going 40 kph
the horse wouldn't have spooked.
Mr Roberts then referred me to T78.20 but I have already canvassed that
evidentiary point. At [61] Mr Roberts made this submission:
It may be put that because he [the plaintiff] said that in his opinion the
horse would not have bucked if the car was only travelling at 40 kph.
The plaintiff was reconstructing. It was not directly put that it was only
on the basis of that opinion that he gave evidence the car was
travelling significantly faster than 40 kph. However the manner in which
the plaintiff gave the evidence regarding his opinion is often seen when
an unsophisticated witness is giving evidence, and should not, I
submit, be taken as speculation, as was put.
There is force in that submission. Not only could the plaintiff be described as
unsophisticated but he could also be described as laconic. Given his
background and work history, the plaintiff was clearly a country man and a
short distance for him would probably be the proverbial country mile. Persons
of Mr Hobbs' age and background do not tend to overestimate but to
underestimate. Given Mr Hobbs' life experience some weight should be given
to his opinion as to the speed not only of the vehicle, but, given his
background as a horseman, some weight should also be given to his opinion
as to what caused the horse to react in the way it did. The probabilities, in my
 view, favour the proposition that it was the speed of the defendant's vehicle
and its closeness to the plaintiff's horse, the proximity of the stimulus to the
horse, that caused the horse to react in the way it did. That was the opinion of
the plaintiff himself which can be given some weight. That was certainly the
expert opinion of Mr Doughty which I accept and the competing theory is one
that I have already rejected.

[162] Again, as I just said, that appears to me to have been what she knew at
the time of giving evidence and not what she did on the day of the accident.
On Mr Moore's evidence, she could have been further to the left and therefore
increased the distance between her car and the horse. Equally, she could have
slowed down but her slowing down was not adequate enough. As I said, it is
likely that she was doing 60 kph when she reached the crest. Her speed would
have been increased thereafter, perhaps to 70. Only then did she start to slow
down but the distance was not long and she would have been doing
somewhere between 70 and 60 kph when she passed the horse on her right
and the tree on her left. That it took her at least a further 100 metres, if not 110
metres, to bring her car to a stop is evidence of the speed at which she was
travelling.
1 Having regard to the critical importance of the issue of the speed of the car as
it approached and passed the respondent and his horse, I will set out the
relevant evidence in a little detail.

2 The only evidence of the vehicle travelling at a speed in excess of 40 km per

hour was given by the respondent. The critical evidence relied upon by the
primary judge (as set out in paragraphs [153] and [160] of the primary
judgment which I have quoted above) was given at T77.37-78.30 in the course
of examination-in-chief. The passage of the transcript in which it was given
should be set out in full:

Q. Could I ask you this? If it was to be suggested to you that the car, as it
came towards you and passed you, was travelling at no more than 40
kilometres per hour, and I understand you cant say precisely how fast it was
going, what do you say to the suggestion that it was going at no more than 40
kilometres per hour?
A. I dont believe it was going that slow.
Q. What was your impression as to her speed?
A. I believe I know the car was going faster than that. It was going probably
60 to 70kms an hour at that particular stage.
OBJECTION
ROBERTS: After the words faster than that.
HIS HONOUR: I take it as the plaintiffs estimate only.
WILSON: Thank you. Hes not even--
 HIS HONOUR: To put any weight on it, Id have to have a lot more evidence.
ROBERTS: I understand that. As to the estimate of speed, I accept what your
Honour said but the evidence of going faster than that, I would submit is
admissible.
HIS HONOUR: The fact that he believes it to be greater than 40, I accept. We
dont know what the speed limit is. Most motorists generally travel at the speed
limit and the difference between 60 and 70 is not particularly great. The
difference between 40 and 60 is however.
ROBERTS
Q. What was it that led you to make that estimate?
A. I believe if the vehicle had been going 40, that horse wouldnt have
spooked.
OBJECTION.
ROBERTS: I dont press that.
WILSON: That is complete speculation.
HIS HONOUR: It is speculation, I wont strike it out Ill leave it there but I wont
give it any weight at all.
1 Four matters should immediately be noted. First, the evidence was led as the
respondents estimate of speed. The primary judge correctly observed that
the evidence was not entitled to be given any weight without a lot more
evidence. Secondly, the critical reasoning underlying the respondents
estimate was an assertion based on the behaviour of his horse. The central
issue in the case was the cause of the horses aberrant behaviour. The only
reason given by the respondent in response to an open-ended question from
his own counsel seeking to establish the basis of his estimate of speed was the
horses aberrant behaviour. That reasoning was an impermissible ex post facto
rationalisation of the events. The primary judge should have given the
respondents estimate of the speed of the vehicle no weight. Thirdly, senior
counsel for the respondent did not press the answer which provided the critical
reasoning underlying the respondents estimate of speed. Fourthly, despite
ruling in response to the objection taken by the appellants that he would give
this evidence no weight, the primary judge relied upon this passage (and only
this passage) of evidence to support his dispositive reasoning about the speed
of the appellants vehicle.

2 That is not the end of the difficulties about the primary judges findings about
the speed of the appellants vehicle. The background to the evidence I have set
 out above was that when originally asked in evidence-in-chief about the speed
of the appellants vehicle the respondent said that:

I didnt take a lot of notice of it, then I lost sight of it and all of a sudden it just
turned up in my face
1 Shortly thereafter the following evidence was given:

Q. Now, did you, I know you only had a couple of a short time to look at it, did
you form some view as to the speed in which the plaintiff was travelling, at
which the vehicle was travelling?
A. I thought the vehicle was going a bit quick.
Q. What do you mean by that?
A. I cant actually place a speed on her driving, but I know it come fast to me
quick and it was fairly noisy, the engine of that car, is that--
Q. Youre not prepared to say how fast it was going, I understand that?
A. Well, I dont know, but it was moving up.
1 On his own account the respondent was in no position to give an estimate of
the speed of the appellants car. From a distance, he saw the appellants
vehicle turn into Cooramin Street and head towards the first lot of speed signs.
He was then apparently distracted and only noticed the car again when it
turned up in his face. The evidence of the speed of the appellants car given
by the respondent was correctly described by the primary judge in argument as
being of no weight. His Honour erred in taking that evidence into account in his
dispositive reasoning about the speed of the appellants vehicle.

2 To the extent that senior counsel for the respondent in oral submissions in this
Court relied upon later evidence given in cross-examination by the respondent
that evidence was similarly of no weight. During cross-examination, in a non-
responsive answer to a question asked by the appellants counsel the
respondent said:

Q. In fact, what we do know is that so far as you were concerned he was

perfectly fine near cars, wasnt he?
A. As far as I was concerned he was good near cars.
Q. That included being near, quite close to cars?
A. Yeah. Yeah. He was he was traffic broke. Thats all I can say.
Q. Fast moving cars also?
A. I dont know yeah, I think he was all right. He was traffic broke. All I can
say hes a traffic broke horse. When I when I rode the horse out of my place
 there was trucks and stuff next door to Rodneys and he never ever spooked
prior to that occasion.
1 The primary judge refused to strike out the word spooked in the last quoted
answer. He was in error in failing to do so. The primary judges ruling refusing
to strike out the non-responsive answer demonstrates the error in his
approach:

Well, it goes to the heart of the matter. The horse being, you know, startled by
a fast moving car nearby. Whats the problem with using the word spook
because thats exactly what it is, it just means startled. (italics added)
1 The respondents answer was not only non-responsive but suffered from the
same impermissible assumption as the evidence he had earlier given about the
connection between the speed of the car and Bucks reaction. In light of that
error junior counsel for the appellants cannot be criticised for attempting to deal
with this evidence later in the cross-examination. In the passage relied upon by
his senior counsel on this appeal, the respondent repeated the same assertion
about a link between the speed of the appellants vehicle and the reaction of
his horse. That assertion took the matter no further.

2 The only other evidence led by the plaintiff about the speed of the vehicle was
from an expert in training horses, Mr Doughty. I strongly doubt that much of the
evidence of Mr Doughty or that of the expert called by the appellants, Mr
Jefferys, was admissible under s 79 of the Evidence Act 1995 (NSW). The
appellants counsel submitted orally in this Court that the experts evidence
was, in reality, of little, or no, utility as it involved the experts seeking to put
themselves in Bucks position (or mind) as to which they had no relevant
expertise. There is much force in that submission (see Nominal Defendant v
Ismail [2014] NSWCA 432 (at [21], [29] per Basten JA), which counsel for the
respondent did not seriously gainsay.

3 Mr Doughtys evidence was that a horse is likely to buck when it perceives a

need to escape from a threat. The likelihood that a trained horse under saddle
would shy or buck is dependent on a number of variables that will determine
just how startled the horse is and how the horse perceives it is restricted from
escaping. A horse is less likely to shy if a vehicle passing the horse allows as
much distance as possible when passing, reduces speed and reduces noise. It
may be accepted that these matters fit comfortably within Mr Doughtys
 specialised knowledge, training or experience.

4 Mr Doughty went on, however, to opine that while it was possible that a range
of things, including wildlife in the grass, the horses own shadow and even a
piece of paper could have caused the horse to misbehave, in this case it was
more probable that the cause of the misbehaviour was the appellants vehicle
being driven at high speed past the horse. In expressing that conclusion, Mr
Doughtys evidence does not reveal the assumptions he was asked to make or
made himself about the contents of the long grass adjacent to the horse at the
time of the incident or the speed, path or direction of the travel of the
appellants vehicle. In the absence of a proper identification of his assumptions
or evidence which might support relevant assumptions it is unclear how Mr
Doughtys specialised knowledge, training or experience permitted him to
express any view about the cause of the horses reaction in this case. As the
primary judge observed based on Mr Doughtys evidence, horses have minds
of their own, and do not react rationally because they are not rational beings.

5 Mr Doughty was in no position to offer any reliable opinion about the speed or
likely speed of the appellants car on this occasion. His attempt to give
evidence of the likely reaction of the horse, based on what he thought the
horse likely perceived on the day in question to be the threat posed to it by the
appellants car, was inadmissible under s 79 of the Evidence Act and should
have been rejected by the primary judge. Mr Jefferys evidence, to the extent
that it addressed the likely reaction of the horse, based on what he thought the
horse likely perceived on the day in question to be the threat posed to it, was
equally inadmissible.

6 None of the evidence in the respondents case of speeding was capable of

establishing that the car was travelling at up to 70 km per hour as the car
passed the respondent and his horse. On the respondents evidence he was in
no position to estimate the speed of the car. It came upon him suddenly. He
was initially unwilling to offer any estimate of speed, or indeed to offer an
opinion that the car was speeding. The respondents evidence about speed
was originally and correctly described by the primary judge as being of no
weight.
7 Accordingly, the ultimate conclusions of the primary judge about the speed of
the appellants vehicle based on the respondents evidence were incorrect and
should not have been drawn.

8 The evidence about the speed of the vehicle did not end there. Evidence was
given by the driver of the vehicle, the second appellant and the passenger in
the vehicle, Mr Moore. The evidence of the second appellant was unequivocal
about the speed of the vehicle. That evidence was as follows:

Q. You understand that it was at a point approximately opposite that tree, that
is on the other side of the road?
A. Yes.
Q. That Mr Hobbs says you passed him?
A. Correct.
Q. I take it you agree thats as best can be worked out the position you did
pass him?
A. Yes.
Q. At that stage youre travelling at what? At 40 kilometres an hour?
A. Yes.
Q. Are you sure?
A. Mm.
Q. How do you know?
A. Checked my speed gauge.
Q. Sorry?
A. I checked my speed gauge.
Q. When did you do that?
A. As I was driving along there.
1 The primary judge rejected the whole of the second appellants evidence as it
reeked of reconstruction. Further, his Honour found her evidence was
inconsistent with the evidence not only of the plaintiff and Mr Duck, but also
her own fianc, Mr Moore. Giving due deference to the advantages of the
primary judge in seeing the witnesses give evidence, his conclusion about the
second appellants evidence concerning the speed of the vehicle is difficult to
understand.

2 On the critical evidence of the speed of the vehicle, as I have said, the
respondent was in no position to give any estimate of speed and his Honour
 erred in taking that matter into account as part of his dispositive reasoning on
the issue. Mr Duck gave no evidence at all about speed. Indeed, he said he
could not comment about the speed of the vehicle as he did not see it travelling
uphill.

3 Mr Moores evidence corroborated the second appellants evidence. He gave

evidence about the speed of the vehicle as follows:

WILSON
Q. Did anything occur with the vehicle when you reached the 50 sign?
A. Nothing occurred because we were only doing 50 at most.

HIS HONOUR

Q. When she said that, do you know where you were in relation to either the
speed signs or the crest or beyond the crest?
A. We were roughly on the crest of the hill when Holly has pointed the horse
out to me.
Q. What, if anything, at that stage happened with the vehicle?
A. At that point Holly started to slow down. Further on down the track as we
were getting closer towards the horse, Ive then asked Why are we slowing
down? Thats just me. If a horse is on the road, youre happy to do your speed
limit. Holly slowed down at that point. Were side by side and then Ive noticed
Ive turned around to have a look to see whats going on with the horse, as
then the horse is starting to buck on Hobbs. Ive noticed a motor bike down
further and then by that point we were doing a U-turn.

Q. Youve said that the vehicle slowed down?
A. Yes.
Q. Do you know what speed it slowed down to?
A. 40 or less.
Q. Apart from slowing down, did the vehicle do anything else?
A. It did veer to the left.
1 That evidence was consistent with the second appellants evidence about the
speed of the vehicle as it passed the respondent and his horse. The primary
judge accepted Mr Moores evidence but found, on a basis which is difficult to
discern, that there has been some telescoping of events in Mr Moores
memory. The primary judge further stated, for reasons which are again difficult
 to discern, that one cannot ignore the subtle influence upon him, albeit
subconscious, of his relationship with the second defendant and his ongoing
contact with her.

2 The explicit basis upon which the primary judge rejected the evidence of the
second appellant about the speed of the vehicle cannot be sustained. Neither
the respondent nor Mr Duck were in a position to give (or in the case of Mr
Duck did give) contrary evidence. Mr Moores evidence, which subject to the
issue of telescoping, the primary judge accepted, was consistent with the
second appellants evidence about the speed of the vehicle.

3 The primary judge erred in finding that the vehicle was travelling at a speed of
60 to 70 km per hour. The only evidence supporting that finding was the
circular reasoning offered by the respondent who initially, and correctly,
accepted that he was in no position to estimate the speed of the vehicle.
Simply put, the respondent (the plaintiff below) failed to prove his case about
the speed of the vehicle.

4 Even assuming (without deciding) that the primary judge was entitled to reject
the evidence of the second appellant about speed for other reasons, the
absence of evidence from the second appellant about speed does not permit a
finding that the vehicle was travelling at a speed of 60 to 70 km per hour.
Further, there was no proper basis for his Honour to reject Mr Moores
evidence about the speed at which the vehicle was travelling.

5 Grounds 7 and 8 of the notice of appeal should be upheld. The evidence

before the primary judge did not support a finding that the vehicle was
travelling at a speed of 60 to 70 km per hour at the time it passed the
respondent and his horse.

Grounds 9-11 duty of care

Appellants submissions
1 Although couched in terms of an attack upon the findings of the primary judge
concerning the proximity of the vehicle to the respondent and his horse, it was
made clear in the written and oral submissions of the appellants that the
essence of their complaint was that the primary judge had failed properly to
identify the relevant duty of care and had failed to address the requirements of
 s 5B of the Civil Liability Act as to the relevant risk of harm against which the
questions of breach of duty and causation could be assessed.

2 The primary judge held that the second appellants action, in moving her car
two-three metres from the kerb, was insufficient to satisfy her duty to take
reasonable care. As I have said, this finding was made without reference to the
obligations imposed by s 5B of the Civil Liability Act which applied in this case.
The finding ultimately made by the primary judge was that the vehicle was
approximately five metres from the horse as it passed.

3 The appellants submitted that, if the duty of care had been correctly identified,
and ultimately the risk of harm, by moving further to the left of the road as the
respondent and his horse approached, so that there was a lateral distance of
five metres between them, the second appellant satisfied that duty to take
reasonable care, having regard to the relevant risk of harm.

Respondents submissions
1 In written submissions the respondent emphasised the primary judges finding
that the second appellant had attempted to exaggerate the distance between
her vehicle and the horse. This, it was submitted, was a relevant consideration
concerning the relationship between the passing of the vehicle and the horses
misbehaviour. It was submitted that the primary judges finding that the second
appellant was trying to exculpate herself was relevant to the existence of the
duty of care owed here.

2 In oral submissions senior counsel for the respondent accepted that the
primary judge did not set out the scope of the duty of care by reference to s 5B
of the Civil Liability Act. It was submitted that the primary judge was entitled to
find a breach of duty by the second appellant based upon her admissions that
she was conscious that to safely drive past a horse she should drop her speed
to somewhere below the speed limit.

Consideration of grounds 9-11 the duty of care in this case

1 A fundamental problem in the way the respondent (the plaintiff below) and the
primary judge approached the issue of the existence and scope of the duty of
care in this case is that each failed to address the requirements of s 5B of the
Civil Liability Act which applied to the MACA in this case: s 3B(2) Civil Liability
 Act.

2 In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at
[11] it was emphasised by the plurality that it was of the first importance to
identify the proper starting point, which, both in that appeal and here, was the
Civil Liability Act, without which there was a serious risk that the inquiries
about duty, breach and causation will miscarry.

3 As Meagher JA said in Garzo v Liverpool / Campbelltown Christian School.

[2012] NSWCA 151 at [22]:

To address the questions and considerations in s 5B, it is necessary to

formulate a plaintiffs claim in a way which takes account of the precautions
which it is alleged should have been taken and identifies the risk or risks of
harm which the plaintiff alleges eventuated and to which those precautions
should have been directed.
1 What was required in this case was that the primary judge should clearly
identify the risk (or risks) of harm in respect of which the second defendant
below was obliged to take precautions. It is against that risk of harm that the
court would then have been in a position to determine the second defendants
knowledge of a specified risk of harm, to assess the probability of that risk
occurring, and to evaluate the reasonableness of the second defendants
response, or lack of response, to that risk: see RTA v Dederer (2007) 234 CLR
330; [2007] HCA 42 at [59]-[61] per Gummow J.

2 The need to identify the risk of harm, and to satisfy each of the requirements
in s 5B, has been emphasised in numerous subsequent cases in this Court:
Shoalhaven City Council v Pender [2013] NSWCA 210 at [55]-[72] and [83] ff;
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [139]-[160]; and
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City
Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [100]-[129].

3 The failure by the primary judge to identify the relevant risk of harm means
grounds 9-11 of the notice of appeal should succeed. The failure to identify the
risk (or risks of harm) left the court below in no position to determine the
second appellants knowledge of a specified risk of harm, to assess the
probability of that risk occurring, and to evaluate the reasonableness of the
second appellants response, or lack of response, to that risk or those risks.
 The steps taken or not taken by the second appellant relating to the speed and
proximity of the vehicle to the respondent and his horse could not be tested in
this case, as they must, against a properly identified risk of harm. It was of no
assistance to reason that the second appellant failed in her duty by moving her
car two or three metres from the kerb, as that was insufficient. It is relevant to
observe insufficient when compared to what standard? The primary judges
reasoning, by omitting a properly identified risk of harm against which to test
the second appellants conduct, begs the question relevant question.

4 It was also no answer to the failure properly to identify the duty of care and the
relevant risk of harm to point to evidence of the second appellant seeking to
exculpate herself or evidence said to constitute an admission by the second
appellant that to drive past a horse safely she should drop her speed to
somewhere below the speed limit. At best that evidence could have gone to the
question of the second appellants knowledge of a specified risk of harm.
Having failed to identify any risk of harm, as his Honour was required to do, the
primary judge fell into error.

5 In fairness to the primary judge, the amended statement of claim made no

reference to s 5B or any risk of harm. The description of s 5B of the Civil
Liability Act in the respondents written submissions before the primary judge
as a defence is to be deprecated.

6 Grounds 9-11 of the notice of appeal should be upheld.

Grounds 1-5 causation

Appellants submissions
1 The appellants submitted that the primary judge erred in approaching the
question of causation without addressing the critical requirements of s 5D of
the Civil Liability Act. Section 5D provides:

(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 ("factual causation" ), and
(b) that it is appropriate for the scope of the negligent persons liability to
extend to the harm so caused ("scope of liability" ).
(2) In determining in an exceptional case, in accordance with established
 principles, whether negligence that cannot be established as a necessary
condition of the occurrence of harm should be accepted as establishing factual
causation, 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.
(3) If it is relevant to the determination of factual causation to determine what
the person who suffered harm would have done if the negligent person had not
been negligent:
(a) the matter is to be determined subjectively in the light of all relevant
circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he
or she would have done is inadmissible except to the extent (if any) that the
statement is against his or her interest.
(4) 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.
1 The appellants submitted that the primary judge erred in finding that the speed
and proximity of the appellants vehicle caused the horse to buck by:

1 giving weight to the respondents opinion on this matter; and

2 accepting the expert opinion of Mr Doughty, which was largely if not
wholly based on his belief that the horse may have perceived the
appellants vehicle as a sudden threat and bucked and run in an
attempt to escape that threat.
1 Further, the appellants submitted that even if it was permissible for the primary
judge to speculate what the horse may or may not have perceived, his
Honour erred in finding that the appellants vehicle caused the horse to
perceive it as a threat in circumstances where:

1 the vehicle was being driven on the correct side of the road which was
not the side of the road closest to the horse;
2 the horse had an unimpeded line of sight to the approaching vehicle of
about 300 metres;
3 the horse could easily move onto the grass verge on the left (away from
the vehicle) if so inclined; and
4 the horse had prior experience in traffic.
1 The appellants submitted that the respondent had failed to discharge his onus
in establishing that but for the speed of the appellants vehicle and its
proximity to the horse, the horse would not have bucked. This is because it is
impossible to determine:

1 a speed at which the horse may not perceive the appellants vehicle as
 excessive or a threat; or
2 a lateral separation distance from which the horse may not perceive the
appellants vehicle as a threat.
Respondents submissions
1 The respondent submitted that the primary judges factual findings were correct
and sufficient to establish causation.

Consideration of grounds 1-5 causation

1 The matters identified in s 5D(1)(a) of the Civil Liability Act, which are critical in
the present case, are prerequisites to a finding of causation. In Adeels Palace
at [43] the High Court said that the two tests expressed in s 5D may differ from
the common law test of common sense causation. The factual causation test in
s 5D(1)(a) has been held to reflect the but-for test of causation: Adeels
Palace at [45] and [55]. Clearly the test in s 5D(1)(a) requires identification of
the harm alleged to have been suffered. This ties in with the requirement in s
5B to identify the risk of harm.

2 Regrettably, the decision of the primary judge failed to grapple with this issue at
all. The "passing remark" to which reference was earlier made is found in [275],
which was in the following terms:

HIS HONOUR: I have enquired of the representatives of the parties whether

any further reasons for judgment are required. I am told that none is required. I
would merely point out that the defendant raised a number of defences based
on the defendant's interpretation of the Civil Liability Act 2002. As far as the
defence under s 5D is concerned, I merely refer to the decision of The
Nominal Defendant v Hawkins which I cited yesterday, in particular [11] in the
reasons of Hodgson JA.
1 Paragraph 11 of Nominal Defendant v Hawkins [2011] NSWCA 93 contains the
definitions of injury and motor accident. If his Honour is to be taken to be
referring to the consideration in Hodgson JA's reasons at [32]-[44], which his
Honour had cited at [178]-[180] (during the morning of the third day on which
his Honour's reasons were delivered), then it remains the case that those
passages do not deal with s 5D and it remains unexplained how his Honour
applied that analysis. On the findings of the primary judge it is not possible to
determine the speed of the appellants vehicle that the respondent or his horse
may have perceived as excessive or a threat. At the time of the incident, the
horse was walking along its regular route next to Cooramin Street. The incident
 occurred in a 50 km per hour zone. Just past the area where the incident
occurred is an 80 km per hour zone. The horse regularly walked in that area
and was regularly passed by cars driving at that speed. The 50 km per hour
speed limit where the incident occurred was adjacent to residential
development on the outskirts of north Wagga Wagga. There was no evidence
that the lower speed limit in the area where the incident occurred had anything
to do with equine safety.

2 The horse was traffic broke and good near cars. It was not apparently
concerned by being passed in reasonably close proximity by trucks. The
primary judge did not grapple with any of these issues or make any finding
about the speed at which the second appellant could have driven without the
horse reacting in this way.

3 So far as the lateral separation distance issue was concerned, it will be

recalled that the primary judge found that to be a distance of five metres. It is
also noteworthy that the appellants vehicle was approaching on the other side
of the road on a clear day at an angle to the horse which gave it a clear line of
sight for about 300 metres. Again, the primary judge did not grapple at all with
the evidence that the horse was used to walking on roads with traffic going at
much greater speeds and in much closer proximity than the second appellant
(even accepting the finding of the second appellant driving at 60 to 70 km per
hour which, as I have found, was not a factual finding that was open on the
evidence).

4 I have already found, in relation to the speed issue, that the expert opinion of
Mr Doughty about his belief that the horse may have perceived the
appellants vehicle as a sudden threat and bucked in an attempt to escape
that threat was not based on his training, study or experience. That evidence
should have been rejected by the primary judge as inadmissible: s 79
Evidence Act. On any view that evidence was not capable of proving the
necessary but for causation.

5 The respondent did not prove that but for the speed and proximity of the
appellants vehicle the horse would not have reacted as it did.

6 In addition, by reason of the failure of the primary judge properly to identify the
 risk of harm and duty of care here engaged this may be a case where issues
would need to be grappled with under s 5D(1)(b) of the Civil Liability Act. Given
my conclusion about factual causation, it is unnecessary to address this issue
further.

7 Grounds 1-5 of the notice of appeal should be upheld.

Notice of contention and grounds 6 and 12 of the notice of appeal

1 The parties addressed these issues together and, as will become apparent,
were correct to do so. Ground 6 of the notice of appeal provided that the
primary judge erred in finding that the respondents injury was caused by a
motor accident as defined and, accordingly, all the respondents claims under
the MACA must fail. Ground 12 stated that his Honour erred in finding (if his
Honour did so find) that the incident was a blameless motor accident.

2 The notice of contention stated that, in the event that the Court found that the
primary judge erred in relation to negligence but that the injuries were
nevertheless caused as a result of a motor accident, the respondent is entitled
to a judgment against the appellants on the basis that his injuries resulted from
a blameless motor accident within the meaning of Div 1, Part 1.2 of the MACA.

3 The appellants submitted that even if the respondents injuries were caused by
a motor accident and there was no negligence on the second appellants part,
the accident was caused by the fault of an other person, namely the
respondent, and thus could not be a blameless motor accident. The parties
were divided about whether this Court in Axiak v Ingram (2012) 82 NSWLR 36;
[2012] NSWCA 311 had decided that proof of contributory negligence was or
was not proof that the accident was caused by the respondents negligence or
any other tort.

Respondents submissions motor accident

1 The respondent submitted that the primary judge correctly held that there was
a very substantive causative role between the use or operation of the
appellants motor vehicle and the injuries sustained by the respondent.

2 The respondent submitted that the speed of the vehicle and its proximity to the
horse, were both functions of the second appellants manner of driving, and
 without those factors, the respondents injuries would not have occurred.

Appellants submissions motor accident

1 The appellants submitted that the primary judge erred in finding that the
respondents injuries were caused by a motor accident and thus that the
accident cannot be characterised as a blameless motor accident.

2 The appellants argued that the mere fact that the appellants motor vehicle was
passing or had just passed the horse when it began to buck is insufficient to
establish that the incident involved the use or operation of the vehicle.

3 Further, the appellants submitted that even if the appellants vehicle was
somehow involved in an accident, in that its mere presence affected the
horse, the respondent failed to establish that the injury was a result of the
driving of the vehicle by the second appellant or a dangerous situation
caused by the second appellants driving of the vehicle.

Respondents submissions was the accident caused by another person?

1 The respondent submitted that the primary judges finding of contributory
negligence did not provide proof that the accident was caused by the
respondents negligence or any other tort. It was submitted that this Court in
Axiak v Ingram had so concluded in a way indistinguishable from the present
case.

Appellants submissions was the accident caused by another person?

1 The appellant submitted that in Axiak v Ingram this Court held only that a
pedestrian who suffers injury in a motor accident cannot be at fault under s 3
as he or she owes no duty to motorists and thus cannot be the other person
in s 7A of the MACA. Here, the respondent was riding a horse adjacent to a
public road way and as such owed a duty of care to other road users. The
primary judges finding of contributory negligence necessarily involved a finding
of tortious liability: s 5R Civil Liability Act (which also applies to the MACA).
Thus, it was submitted, the blameless motor accident provisions could not
apply for this additional reason.

Consideration of notice of contention and grounds 6 and 12 of the notice of appeal

1 It was common ground that the use or operation of the vehicle had to have a
 very substantial causative role in the accident for it to fall within the definition
of a motor accident in s 3 of the MACA: Nominal Defendant v Hawkins at [33]
per Hodgson JA.

2 The primary judge did not give separate consideration to the question whether
this was a blameless motor accident under s 7A of the MACA. The appellants
submission that the primary judge erred in finding that the respondents injuries
were caused by a motor accident should be upheld.

3 I have set out above at [44]-[64] the evidence about the speed of the vehicle as
it passed the respondent and his horse. The primary judge erred in concluding
that the speed of the vehicle as it passed the respondent and his horse was 60
to 70 km per hour.

4 For the purposes of the notice of contention, senior counsel for the respondent
did not rely upon the findings about proximity to support a submission that this
was a blameless motor accident. He was correct to do so. The finding about
proximity was glaringly improbable and not based on any evidence, lay or
expert, and should be rejected.

5 Senior counsel for the respondent accepted that if the Court were to conclude
that the speed of the appellants vehicle at the time it passed the respondent
and his horse was no more than 40 km per hour it followed that the respondent
had not proven that the present was a motor accident as defined. This was
because the appellants case about the cause of the accident was put on the
basis that it was highly improbable that the horse would have reacted in the
way that it did to a passing car travelling at only 40 km per hour. This was the
effect of the respondents evidence and that of Mr Doughty, which I have set
out at [52]-[55] above.

6 That concession was correctly made. The only way in which the respondent
sought to demonstrate that the use or operation of the vehicle had a very
substantial causative role in the accident was to rely upon a speed well in
excess of 40 km per hour being the speed of the vehicle as it passed the
respondent and his horse.

7 His Honour erred in making the finding about the speed of the vehicle that he
 did. The weight of the evidence I have discussed above was in favour of a
finding that the vehicle was only travelling at 40 km per hour when it passed
the respondent and his horse. It is unnecessary to decide whether that finding
should be made in this Court. That is because, even assuming that the vehicle
was travelling at 60 to 70 km per hour when it passed the respondent and his
horse, the respondent nevertheless failed to prove that the use or operation of
the vehicle had a very substantial causative role in the accident.

8 I have addressed factual causation under s 5D(1)(a) above at [86]-[94]. As I

have said, on the findings of the primary judge it is not possible to determine
the speed at which the respondents horse may have perceived the appellants
vehicle as excessive or a threat. The horse regularly walked on this road,
close to traffic travelling at 80 km per hour and above. The respondent did not
prove that but for the speed of the appellants vehicle on this occasion the
horse would not have reacted as it did. Cars travelling at greater speeds and in
closer proximity than the appellants car had not caused the horse to react
adversely on its regular walks on this very road. Other than bare assertion by
the respondent and inadmissible speculation by Mr Doughty there was no
evidence that the speed of the appellants vehicle had anything to do with the
horses reaction on this occasion. The failure by the respondent to prove
factual causation has consequences. The injury caused to the respondent was
not proven to be caused as a result of a motor accident as defined in s 3 of
the MACA.

9 The appellants fall back submission, that the accident was caused by the fault
of an other person within the meaning of s 7A, raises difficult issues. In
particular, the issue of exactly what Axiak v Ingram decided should in my view
await a case in which that issue is determinative.

Notice of cross-appeal
1 The notice of cross-appeal was abandoned by senior counsel for the
respondent at the hearing. The notice of cross-appeal must be dismissed with
costs.

Conclusion and orders

1 For the foregoing reasons the appeal should be allowed. I propose the
 following orders:

1 Appeal allowed.
2 Set aside the orders of the primary judge of 26 May 2016 and in lieu
thereof make the following orders:
a amended statement of claim dismissed;
b respondent to pay the appellants costs as agreed or assessed.
1 Respondent to pay the appellants costs of the appeal as agreed or
assessed.
2 Notice of cross-appeal dismissed with costs.
**********

Amendments
18 April 2017 - Typographical corrections made in [27], [31], [88], [95] and
[105].

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