Champion v Canberra World Cup Showjumping Ltd & Carnell [2002] ACTSC 54 (6 June 2002)

Last Updated: 11 June 2002

KAYE CHAMPION v CANBERRA WORLD CUP SHOWJUMPING LIMITED

and ANNE KATHERINE CARNELL [2002] ACTSC 54 (6 June 2002)

CATCHWORDS

NEGLIGENCE - owner of horse lends to rider - horse sensitive - rider unskilled - whether duty of care arises - whether duty of care modified - horse injured - whether lack of reasonable care by rider - no matter of principle.

DAMAGES - permanent injury to show horse - loss of market value - loss of earnings from training sessions - no matter of principle.

Donghue v Stevenson [1931] UKHL 3; [1932] AC 562

The Horse and the Law, Pannam (1979)

No. SC 618 of 1998

Judge: Miles CJ

Supreme Court of the ACT

Date: 6 June 2002

IN THE SUPREME COURT OF THE )

) No. SC 618 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KAYE CHAMPION

Plaintiff

AND: CANBERRA WORLD CUP SHOWJUMPING LIMITED

ACN 058 419 211

First Defendant

AND: ANNE KATHERINE CARNELL

Second Defendant

ORDER

Judge: Miles CJ

Date: 6 June 2002

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff against the first defendant in the sum of $85,000 together with costs.

2. There be judgment for the second defendant against the plaintiff together with costs.

3. The liability of the first defendant for the plaintiff's costs include the liability of the plaintiff for the second defendant's costs.

1. The plaintiff owns a horse which she allowed the second defendant to ride during a prize giving ceremony at a competition at Exhibition Park run by the first defendant on 28 January 1996. The horse was injured whilst the second defendant was riding it. The plaintiff sues both defendants for damages for negligence.

2. The first defendant (the Showjumping Society) did not defend the action and the plaintiff obtained interlocutory judgment against it for damages to be assessed.

3. The second defendant (whom I simply call "the defendant") was not a skilled horse rider and did not claim to be. A week or two before the event, her senior media advisor, Mr Gary Dawson, received a telephone call from a woman asking whether the defendant would be willing to present the prizes on horseback. The woman assured Mr Dawson that it would be a quiet horse and that it would be "led through". Mr Dawson relayed the request to the defendant and conveyed her response to the woman who had telephoned him. He told the woman that the defendant was "willing to give it a go" and again emphasised the need for a docile horse.

4. On the day of the competition the horse was being ridden by Ms Penelope Cox. Shortly before the time of the prize giving, Ms Linda Pahl, a director of the Showjumping Society, asked the plaintiff whether the defendant might ride the horse in order to present the prizes. The plaintiff asked, "Can she ride?" She was told, "Yes". The plaintiff departed. Ms Cox led the horse to the prize ring. She waited there holding the reins of the horse for about 20 minutes. Eventually the defendant arrived at the prize ring. She was wearing trousers, a shirt and flat shoes. Someone supplied her with a helmet. Ms Cox went to help her up on to the horse but, according to Ms Cox, who has a clear memory of it all, she mounted without assistance.

5. There were two sets of reins, the snaffle and the curb. The defendant took one or the other from Ms Cox and clamped her legs against the horse. This was a dressage horse. It was very sensitive to commands of the most subtle nature. The defendant pulled at the reins. The state of mind of a horse is as much a fact as the state of its digestion. The horse thought it was being told to move backwards. That is what it did. The defendant pulled harder at her part of the the reins, causing Ms Cox to lose hold of hers and the horse continued to move backwards. Ms Cox called out to the defendant to let go, but either the defendant did not hear or she was unable to convert the message into effective action on her part. It is likely also that she panicked to some extent and in doing so gripped the horse even more firmly with her knees. If she did, that also would have told the horse to keep moving backwards.

6. In this way the horse continued to move quickly backwards until it collided with part of a metal spectator stand some 15 metres from where it had started. The collision caused a 15 centimetre laceration to a tendon sheath of the right hind leg of the horse which began to bleed profusely. It was all over in a matter of seconds. The defendant, who had fallen off, was persuaded to remount and was led around the ring where the presentation of the prizes proceeded without further incident despite the horse's bleeding wound.

7. It was submitted on behalf of the defendant that she was under no duty of care to the plaintiff and her horse. But the submission is unacceptable. One school holds that there is but one single duty of care, that is to exercise reasonable care for the person to whom one owes the duty, as per Donghue v Stevenson [1931] UKHL 3; [1932] AC 562. The other school holds that there are various duties according to particular relationships recognised in the law, such as employer and employee, landlord and tenant and so on. It is said that it is the proximity inherent in such a relationship which gives rise to the duty of care. No case was cited, and I am not aware of any, that attributes this proximity to the relationship between owner and rider of a horse.

8. But on either approach the plaintiff has to succeed as to the existence of a duty of care on the part of the defendant. On the one hand, it is reasonably foreseeable in a general sense that, if a person who is given control of the property of another does not exercise reasonable care in the control of that property, there is a likelihood of damage to the property; hence the duty of care to take reasonable steps to avoid such damage occurring. On the other hand, if it is necessary to place the rider of a horse in sufficient proximity to the owner to give rise to a duty of care, then I am prepared to hold that there is that degree of proximity. According to some writers, the modern idea of the duty of care arose from the common law liability of a bailee for damage done to the bailor's chattel. There are old cases which say that the onus is on the hirer of a horse to prove affirmatively that injury was not attributable to a failure of the hirer to take reasonable care of the horse: see Pannam, The Horse and the Law (1979) at 42. The defendant in the present case was not a hirer. The onus, in my view, remains on the plaintiff. Counsel did not address this issue.

9. Then it was submitted on behalf of the defendant that she was under a "modified" duty of care. I do not understand the concept. There is no sense in postulating a duty to take less care than is reasonable in the circumstances. What is reasonable depends upon the circumstances. The circumstances may include the relative skill or lack of skill on the part of a defendant. Mention was made of the well-known difference in the care and skill required of a general practitioner in medicine when compared to that of a specialist practitioner. But that, in my view, confuses the scope of the duty with the content of the duty. The care and skill required of a doctor is that of a reasonably competent practitioner in the field of practice. Reasonableness is all. In this case, the question is whether the defendant acted reasonably in the way she rode the horse.

10. The plaintiff who lent her horse was entitled to expect that the horse would be ridden by a person who had the necessary skill and experience to ride a dressage horse. She had that assurance from Ms Pahl who appears to have given it on behalf of the Show Jumping Society.

11. However, the defendant never put herself forward as having the necessary skills and experience. On the contrary, she had instructed Mr Dawson to obtain an assurance that the horse was docile enough for her to ride without danger. She did not know about dressage horses, with their sensitivity and trained tendency to react to the slightest movement of the rider as some sort of command. She did not know that the harder she pulled on the reins and the harder she tried to grasp the horse between her legs the firmer the command to move backwards. There was nothing she did that was unreasonable for an untrained untutored rider who was not adequately warned of the sensitivity of the horse.

12. Just as there was no fault on the part of the defendant, the only fault on the part of the plaintiff was to trust those who borrowed the horse to ensure that somebody capable rode it. In so far as it is claimed that the plaintiff was guilty of contributory negligence I would reject the claim. The plaintiff had no reason to suspect that the defendant would not, within the bounds of reasonableness, ensure the safety of the horse. On the contrary she was given to expect that the rider would be a person of skill and competence. That expectation was not engendered by or contributed to by anything done by the plaintiff or on her behalf by Ms Cox. Even if there were a finding of negligence on the part of the defendant I would not reduce the damages by reason of contributory negligence on the part of the plaintiff