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ABOUT JAMES MCINTYRE
James McIntyre has extensive experience advising commercial insurers, self insurers and the Australian
Government in relation to liability claims. James has defended a wide range of liability claims arising from
sports including horse and greyhound racing, mountain biking, motor sport and soccer as well as school
physical education lessons.
James has also spoken on sporting liability issues at an international sports law conference. In addition to
his liability experience, James has worked as an in-house lawyer at Lloyd’s of London.
Level 19, 480 Queen Street | Brisbane QLD 4000
Phone +61 7 3169 4840 jtmcintyre@hwle.com.au | www.hwlebsworth.com.au
Implications
The decision in the case ultimately turned upon the unique
(and tragic) facts and circumstances in which the injury was
sustained. However, the decision illustrates that rule breaches
or oversights in a fast moving contest do not automatically
translate to liability in negligence. This is relevant to all liability
claims arising from fast moving sports in which participants
compete in close proximity to one another.
Most significantly, the Court has found that the ‘dangerous
recreational activity’ defence (at least in New South Wales) can
apply to claims arising in the context of professional sport.
However, the situation will vary amongst Australian states, and
the potential application of the statutory defence will depend
upon the wording of the civil liability legislation and the
operation of the workers’ compensation regime in each state.
HOBBS V FAIRALL & FAIRALL
(2016) NSWDC 116
In Hobbs, the NSW District Court considered whether an
incident involving a horse being startled by a motor vehicle
could be characterised as a ‘motor accident’ for the purposes
of the Motor Accidents Compensation Act 1999 (NSW). The
plaintiff (who was an experienced rider) alleged that he
suffered personal injuries as a result of the negligence of the
driver of a motor vehicle causing his horse to throw him from
the saddle onto the guttering of the street in which was riding.
The defendant argued, on the basis of evidence from a Mr
Jefferys who had significant practical experience but no formal
qualifications in the handling and management of horses, that
the plaintiff’s horse had been ‘overfuelled’ in that the food
fed to the horse had resulted in it having excess energy. This
was based upon an article Mr Jefferys had written in a trade
magazine in May 2006.
The article had not been peer reviewed and related to the
behaviour of young horses. The Court discounted the
‘overfuelling’ theory in light of the age of the horse (eight or
nine years old) and evidence as to the feed given to the horse
by the plaintiff.
The Court also discounted Mr Jeffreys’ suggestion that the
horse had been startled by the noise caused by a motorbike
rather than the defendant’s vehicle as the factual evidence
indicated the motorbike would have been at least 100 meters
away from the plaintiff at the time of the incident.
The Court preferred the evidence of the plaintiff’s witness, Mr
Doughty (who had tertiary qualifications and experience in
equine behaviour) that the more probable explanation for the
horse’s behaviour was the noise from the defendant’s vehicle.
After consideration of relevant case law, the Court concluded
that even though there had been no contact between the
plaintiff’s horse and the defendant’s vehicle, the plaintiff’s
injuries had been sustained as a result of and caused by the
defendant’s driving of a motor vehicle.
The Court found that the defendant had been negligent in
view of the speed at which she drove and the proximity to the
plaintiff’s horse. However, the Court applied a 30% discount
for contributory negligence to reflect the plaintiff’s failure to
move as far left as possible away from the roadway when the
defendant’s vehicle approached.
Implications
The decision is potentially relevant to defendants and insurers
confronting claims involving injuries due to horses startled
by motor vehicles, such as horse riding activity operators.
Depending upon the circumstances of the case and the
wording of relevant motor accident insurance legislation, it
may be possible for the operator to argue that the incident
was not due to their negligence and that the more appropriate
avenue for recovery is against the motor vehicle driver.
Finally, thedecision illustrates theneed for careful consideration
of the factual basis upon which expert evidence has been
provided. In this case, the value of the defendant’s expert’s
evidence diminished once it was apparent that potential
explanations for the horse’s behaviour, such as ‘overfuelling’
or the sound of a motorbike, were found to be inapplicable in
light of the factual evidence. The expert evidence must apply
to the facts of the claim (rather than some preferred version) if
it is to be of any persuasive value at trial.
1
Rootes v Shelton (1967) HCA 39
2
(2001) EWCA (Civ) 1054
3
[2011] TASSC 19
38 | Touchline issue 24 | September 2016
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