Anthony Hobbs was riding his horse on a grass strip beside a street in Wagga Wagga, NSW.  As a car passed them going in the opposite direction, the horse shied and bucked causing Mr Hobbs to fall and be injured.  He sued the driver of the car for compensation on the basis that the incident was caused by the negligent driving of the car in passing too close and fast to his horse.

In order for his motor accident claim to succeed, Mr Hobbs had to prove that the driver drove negligently and that her negligence caused the horse to buck resulting in his injuries.  In this case, Mr Hobbs claimed that the driver negligently drove past him on his horse at an excessive speed between 60 to 70 km per hour.

At first, Mr Hobbs succeeded. A Judge of the District Court of New South Wales awarded him $339,000.  The driver appealed to the Court of Appeal of the Supreme Court of New South Wales. On 18 April 2017, the Court of Appeal allowed the appeal and dismissed Mr Hobb’s case altogether (Fairall–v-Hobbs).

According to the Court of Appeal there was simply no factual basis for deciding that the driver was at fault in the eyes of the law.  It said that Mr Hobb’s life experience as a horseman and of how horses reacted was not a proper basis to justify him giving an “estimate” of the speed of the car which, significantly, he never noticed until it had, according to his evidence “turned up” in his face.  On the other hand, the driver of the car and her passenger gave evidence that the car was travelling at 40 km per hour, under the speed limit as it approached and passed Mr Hobbs.  Mr Hobbs also relied on the evidence of an expert in training horses.  But the Court held that the evidence of this expert was unacceptable because it depended on the expert putting himself in the position of the horse (or its mind) and the expert had no relevant experience, qualifications or training relating to the thinking or behaviour of a horse walking one way, off road, with a car approaching from the other direction. Mr Hobbs was also unable to prove that the car passed otherwise than normally in its own lane.

The law of evidence is complex and can be technical. But in all cases where compensation is sought for negligently caused harm, the claimant must present the evidence to prove the facts to support the claim.  Only an expert can give opinion evidence. So it’s vitally important to engage someone with not only a relevant opinion but who the Court will accept as an expert. Sympathy for Mr Hobbs was not enough. His case sadly fell at the first hurdle because he did not have any acceptable evidence to prove that the driver drove her car negligently.

The Court of Appeal also highlighted another matter which must be considered carefully by anyone before seeking legal redress for harm attributed to someone else’s negligent conduct.  The court said that it was crucial for Mr Hobbs to identify the risk of harm involved and that he had failed to do so. It is the identified risk which guides the reasonable person’s response to that risk, in other words, what precautions the law requires be taken.  Mr Hobbs failed to articulate the risk presented by a car driven in the opposite direction on the correct side of the road within the speed limit. In other words, Mr Hobbs had to ask himself what should the driver have done or not done in the circumstances. The steps taken or not taken by the driver relating to the speed and proximity of her car to Mr Hobbs and his horse could not therefore be tested against a properly identified risk of harm.

It is a lawyer’s job to identify the risk of harm and what precautions ought to have been taken to avoid the risk which has eventuated to evaluate the chances of a successful claim.  It is only a risk which is foreseeable and not insignificant and which a reasonable person would have taken precautions against which can properly ground a claim in negligence.

The decision against Mr Hobbs reminds us that horse riding is potentially dangerous and sometimes bad things happen to riders for which no-one is legally to blame.

Anyone who rides on public roads must take notice.  A road incident involving a car will not automatically mean that the driver is at legal fault or even that it qualifies as a motor accident for vehicle insurance purposes.  Riders on roads must exercise extreme care for their own safety. If they are regular road users, they should consider an insurance product to cover medical costs and loss of income in case of injury.

11 May 2017

© 2017 Michael Mackinnon, Solicitor & Independent Counsel