Shut the gate, the horse has bolted – Plaintiff seeks damages under the Motor Accidents Compensation Act 1999 (NSW) after falling from his horse – Fairall v Hobbs [2017] NSWCA 82
Originally Published by Jon Whealing on Sunday, April 23, 2017 12:00:00 AM
Author: Jon Whealing
Judgment Date: 18th April, 2017
Citation: Fairall v Hobbs [2017] NSWCA 82
Jurisdiction: New South Wales Court of Appeal1
Principles
An injury is not compensable under the Motor Accidents Compensation Act 1999 (NSW) (MACA) unless it was caused during one of the events specified in s 3A of the MACA.
The use or operation of a vehicle must have a 'very substantial causative role' in the accident to fall within the definition in s 3A.
Even when operating under the MACA, a claimant still must have regard to ss 5B and 5D of the Civil Liability Act (CLA) when identifying the relevant risk of harm and establishing causation.
Background
The plaintiff suffered injuries when he was thrown from his horse whilst riding along a road in Wagga Wagga, New South Wales. The plaintiff's horse was ironically named Buck.
At the same time, Ms Fairall (defendant) was driving a motor vehicle on the opposite side of the road. As the vehicle passed the plaintiff, his horse began to buck and eventually threw him from the saddle. The plaintiff landed on the concrete kerb and gutter, sustaining injuries as a result.
The plaintiff alleged his injuries were caused by the negligent driving of the defendant. In the alternative, he also alleged a blameless accident. For either scenario, the plaintiff sought to establish this incident was a motor accident as defined by section 3 of the MACA.
The main factual issue before the primary judge was whether the driving of the vehicle caused the plaintiff's horse to buck. The parties accepted that this issue turned on how fast the vehicle was travelling and how close it manoeuvred to the horse.
The primary judge, in a 17-hour oral judgment spanning four days, found in the plaintiff's favour by holding that:
The plaintiff was awarded $339,242.40 after a 30% reduction of contributory negligence for failure to keep sight of the defendant's vehicle.
The defendant appealed, with her main grounds focusing on:
At the same time, Ms Fairall (defendant) was driving a motor vehicle on the opposite side of the road. As the vehicle passed the plaintiff, his horse began to buck and eventually threw him from the saddle. The plaintiff landed on the concrete kerb and gutter, sustaining injuries as a result.
The plaintiff alleged his injuries were caused by the negligent driving of the defendant. In the alternative, he also alleged a blameless accident. For either scenario, the plaintiff sought to establish this incident was a motor accident as defined by section 3 of the MACA.
The main factual issue before the primary judge was whether the driving of the vehicle caused the plaintiff's horse to buck. The parties accepted that this issue turned on how fast the vehicle was travelling and how close it manoeuvred to the horse.
The primary judge, in a 17-hour oral judgment spanning four days, found in the plaintiff's favour by holding that:
- The defendant was driving at an excessive speed, in the range of 60-70 km/h when she passed the plaintiff and his horse.
- Although driving on the opposite side of the road, the defendant owed the plaintiff a duty of care to move even further to her left as she passed.
The plaintiff was awarded $339,242.40 after a 30% reduction of contributory negligence for failure to keep sight of the defendant's vehicle.
The defendant appealed, with her main grounds focusing on:
- The findings of the primary judge regarding the speed and proximity of her vehicle to the plaintiff and his horse.
- The absence of any reference to section 5B of the CLA in identifying the relevant risk of harm and the proposed duty of care.
- The absence of any reference to section 5D of the CLA in establishing causation.
New South Wales Court of Appeal (Court of Appeal) decision
The Court of Appeal unanimously allowed the appeal.
The Court of Appeal found that the primary judge misapplied his own ruling when determining the defendant's speed at the time. Although acknowledging the evidence regarding the defendant's speed as having 'no weight', the primary judge used that same evidence in concluding the defendant was travelling 60-70 km/h.2 However, none of the evidence put before the primary judge was capable of establishing this speed.3
The primary judge also failed to identify the proposed duty of care owed by the defendant. There was no analysis of s 5B of the CLA and no identification of the relevant risk of harm. Such a failure meant that the court below could not properly assess the defendant's actions, as there was no actual standard to compare them against. Instead, the primary judge simply labelled the defendant's actions as 'insufficient', despite accepting that she was on the opposite side of the road and at least five metres away from the horse.4
In terms of causation, the Court of Appeal noted that the primary judge "failed to grapple with this issue at all".5 There was no evidence that the speed of the defendant's car had anything to do with how the horse reacted on this occasion. In fact, it was confirmed that the horse regularly walked the same road and encountered traffic travelling at greater speeds with closer proximity.
Finally, both McColl A/P and Leeming JA limited their comments to the conduct of the primary judge. In particular, they criticised the 17-hour oral judgment as being inconsistent with the overriding purpose of facilitating the 'just, quick and cheap' resolution of proceedings.6
The Court of Appeal found that the primary judge misapplied his own ruling when determining the defendant's speed at the time. Although acknowledging the evidence regarding the defendant's speed as having 'no weight', the primary judge used that same evidence in concluding the defendant was travelling 60-70 km/h.2 However, none of the evidence put before the primary judge was capable of establishing this speed.3
The primary judge also failed to identify the proposed duty of care owed by the defendant. There was no analysis of s 5B of the CLA and no identification of the relevant risk of harm. Such a failure meant that the court below could not properly assess the defendant's actions, as there was no actual standard to compare them against. Instead, the primary judge simply labelled the defendant's actions as 'insufficient', despite accepting that she was on the opposite side of the road and at least five metres away from the horse.4
In terms of causation, the Court of Appeal noted that the primary judge "failed to grapple with this issue at all".5 There was no evidence that the speed of the defendant's car had anything to do with how the horse reacted on this occasion. In fact, it was confirmed that the horse regularly walked the same road and encountered traffic travelling at greater speeds with closer proximity.
Finally, both McColl A/P and Leeming JA limited their comments to the conduct of the primary judge. In particular, they criticised the 17-hour oral judgment as being inconsistent with the overriding purpose of facilitating the 'just, quick and cheap' resolution of proceedings.6
Why this case is important
The Court of Appeal's decision is another example of the restrictive purpose of s 3A of the MACA. The use or operation of a vehicle must have a 'very substantial causative role' in the accident to enliven the MACA.
For insurers, it is a reminder that claimants must still deal with the CLA in identifying the risk of harm and establishing causation. For accidents towards the fringe of the MACA framework, these requirements may also serve to restrict access to damages.
For insurers, it is a reminder that claimants must still deal with the CLA in identifying the risk of harm and establishing causation. For accidents towards the fringe of the MACA framework, these requirements may also serve to restrict access to damages.
- McColl A/P, Leeming JA, Payne JA
- Fairall v Hobbs [2017] NSWCA [45], [48]
- Ibid [56]
- Ibid [68]
- Ibid [86]
- Ibid [11