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Sean McCormick had registered his concern that the assistant with whom he had been paired in his contracted role as a horse breaker on a thoroughbred stud near Picton NSW was of “small stature”.
Melanie Bolwell was not suited to the task – he had complained – because at 45kg and standing just 155cm tall, the apprentice jockey had insufficient strength to control flighty steeds in the course of the breaking-in process.
In December 2014, while conducting a weight-testing session with a two-year old mare, McCormick was injured when the horse – under Bolwell’s control as he was mounting it – reared and threw him to the ground.The worker – who by then had himself broken in about 500 horses and assisted in the breaking-in of many more – sustained injuries to his back, neck and shoulder for which he filed a lawsuit in the NSW District Court.
His case relied on expert evidence from Garry Matthews to whom objection was taken by the Mt Pleasant Stud Farm.
Matthews too had had decades of experience: 20 years as a professional jockey; 8 years of breeding and training endurance horses; and 30 years as a horse trainer.
He also claimed a specialised knowledge of equine behaviour and training as well as desirable attributes of personnel who ought to be involved in the breaking-in process.
The expert supported the case that McCormick should have been assisted by someone “big, tall and strong”.
Judge Margaret Sidis agreed and found the stud was in breach of its duty of care in failing to adequately consider the risk to which McCormick was exposed by reason of him being teamed with an assistant who was not physically capable of controlling intemperate bloodstock.
Mt Pleasant appealed against the acceptance of Matthews’ evidence contending he lacked the expertise for many of the opinions he expressed.
They pointed to his statements about the equine “mammalian” and “reptilian” brain and his opinion that horses had a “practically a non-existent frontal lobe”.
Appeal judges Richard White, Paul Brereton and Jeremy Kirk agreed that such assertions may well have been beyond his expertise as a trainer if taken literally but could nevertheless be understood as “an eccentric way of expressing learned conclusions about the behaviour of horses”.
They ruled that the trial judge had been entitled to accept his evidence, the effect of which was that “the bigger and stronger an assistant, the more likely a horse will yield to them”.
Mt Pleasant also attacked the primary judge’s conclusion that the testimony of its sole director Roderick Hamilton was “unreliable”.
The appeal judges were loath to interfere with Her Honour’s conclusion as to the witness’s credit.
“The impressions formed by seeing and hearing a witness are not limited to impressions of demeanour in some narrow sense of what is observed,” they noted. “What is heard, the context of the evidence, the tone in which evidence was given may [also] be important”.
In any event, they concluded that the adverse findings against Hamilton on credit were justified.
They further observed that the trial judge’s findings on breach wasn’t based just on the increased risk of injury that arose from the stud’s conduct.
The requisite additional finding – that the risk “came home”, ie the defendant’s breach materially contributed to the occurrence of the injury – had also been made.
Mount Pleasant also contested numerous factual findings including the causal link that McCormick’s accident would have been avoided – as attested to by expert Matthews – by providing him with an assistant handler “of suitable size, experience, height, stature and strength”.
Such link had been proved said the appeal judges. The failure to provide an assistant of appropriate strength and stature had – on all the evidence – substantially increased the risk of the event that had caused the injury.
Its appeal was dismissed. Judge Sidis’ award of $1.4 million in damages to McCormick, stands.
Mt Pleasant Stud Farm v McCormick [2022] NSWCA 191 White JA Brereton JA Kirk JA 23 September 2022 Read case
Categories: Farm worker injury