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Australian Capital Territory Supreme Court

Beaumont v Cahir
Australian Capital Territory
[2004] ACTSC 97

Case Details
Printable Version
Summary:   The appellant was an owner and pilot of a hot air balloon. While piloting the balloon, he landed it in a paddock occupied by a dressage horse belonging to the respondent. The horse was spooked and impaled itself on fencing. The appellant was liable for the cost of reinstating the horse to health and was not permitted to euthanise the horse and find a replacement.

Judge Cooper J delivered the opinion of the court.


Opinion of the Court:

1. The appellant at all material times was the owner and pilot of a hot air balloon. The respondent at all material times was the owner of a horse which she had in training for dressage competition. The horse was agisted at the National Equestrian Centre (`the Centre') in the Australian Capital Territory.

2. On 17 March 1997, the appellant landed his hot air balloon in a paddock at the Centre in circumstances that caused the horse to take fright and impale itself on a star picket. The horse suffered serious injuries and required substantial veterinary treatment to ultimately restore it to a sound condition.

3. The respondent sued the appellant for damages for negligence in the Magistrates Court at Canberra. The appellant admitted liability for the injury to the horse. However, he contended that the respondent was negligent in confining the horse in a paddock where there was an uncapped star picket on the fence line. Accordingly, the matter proceeded to trial on the issues of contributory negligence and the quantum of damages properly recoverable by the respondent.

4. Evidence at the trial was given by the respondent and Dr Kenneth Jacobs, a specialist in equine veterinary science and the treating veterinary surgeon in the present proceedings. No evidence was called by the appellant.

5. On 21 October 2002, EM Symons, Special Magistrate, found that:

(a) The respondent was "an honest witness" and "an impressive witness".

(b) The respondent was the owner of the horse.

(c) The horse was injured when it took fright at the hot air balloon and was impaled on a star picket on the fence line.

(d) It was reasonable for the respondent to reinstate the horse to a sound condition rather than to euthanase it and to purchase a replacement horse.

(e) The respondent had acted reasonably to mitigate her loss.

(f) The respondent was entitled to recover the reasonable costs of reinstatement of the horse to a sound condition.

(g) The respondent was not guilty of contributory negligence.

(h) The respondent was entitled to recover $23,192.86 as special damages, but rejected a claim for general damages.

(i) The costs of the proceedings be borne by the appellant.

6. The appellant appeals from the decision of the learned magistrate raising 25 grounds of appeal in his Notice of Appeal. The appellant did not argue those grounds individually. Rather, his submissions were put globally and may be summarised as follows:

(a) The respondent was not entitled to the reinstatement cost of the services to bring the horse back to a sound condition and ought to have been limited to the cost of a replacement horse.

(b) In finding that the respondent had acted reasonably to mitigate her loss, the learned magistrate applied a wrong test, took into account irrelevant considerations and erroneously found that the respondent acted in accordance with expert opinion when she determined to attempt to reinstate the horse to a sound condition rather than to euthanase the injured horse.

(c) The learned magistrate erred in finding that the respondent was a credible witness.

(d) The learned magistrate erred in concluding that the respondent was not guilty of contributory negligence.

THE NATURE OF THE APPEAL

7. This is an appeal pursuant to ss 387(2), 391 and 393 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT). As with an appeal under ss 207, 208, 209, 214 and 218 of the Magistrates Court Act1930 (ACT), this Court does not hear an appeal under these provisions de novo but rather upon the record of the evidence of the proceedings from which the appeal arises. The Court may in certain circumstances receive further evidence: Moroney v Wojcicka [2003] ACTCA 15 at [20], [55]; see also Green v Bakir Holdings Pty Ltd SC 1732 of 1986 (unreported, ACTSC, 26 June 1987, Gallop J). Although the appeal is an appeal by way of rehearing, the Court can only exercise its appellate powers if it is satisfied that there was some legal, factual or discretionary error made by the learned magistrate which resulted in the making of the order that is the subject of the appeal: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23].

THE MAGISTRATE'S DECISION

8. The learned magistrate found the circumstances of the respondent's acquisition of the horse, its placement at the Centre and its injury as follows:

The plaintiff's horse, "Pejamiga Lass" known as "Yhani", was foaled on 5 October 1983. The Registrar of Racehorses issued a Certificate of Registration of Racehorse No 199784-52 on 31 August 1987 (Exhibit A). Yhani's pedigree is recorded on the Certificate of Registration. The plaintiff purchased Yhani for $500.00 on 11 December 1993 and brought Yhani to Canberra. The plaintiff said she purchased Yhani for the purpose of training it and herself in dressage.

The plaintiff commenced stabling and agisting Yhani at the National Equestrian Centre at Weston Creek in Canberra and subsequently the plaintiff and Asia Bartoshevski (another rider) trained with Yhani in dressage. During the daytime Yhani was placed in a day paddock at National Equestrian Centre with other horses. The plaintiff usually walked Yhani to the day paddock each morning and walked her back to the stables each afternoon. The day paddock was fenced with uncapped star pickets and wire. An uncapped star picket with a Telecom plaque was situated on the boundary fence. On 17 March 1997, while Yhani was in the day paddock, a hot air balloon piloted by the defendant came across the paddock and landed.

Between 4pm and 4.30pm on 17 March 1997 the plaintiff attended the day paddock to return Yhani to the stables. She said she then discovered that Yhani had sustained injuries "from her armpit to right under her left leg and to her back." The plaintiff described the horse as

"obviously stressed, she would not move ...She was utterly still, just standing there, there was blood on the ground."

The plaintiff arranged for Dr Tom McGowan, veterinary surgeon, from Canberra Veterinary Hospital, to attend to Yhani's injuries at National Equestrian Centre that day. The wound is described in the veterinary reports in evidence as

"Yhani had a deep laceration under the left axilla. The wound extended up into the thoracic cavity, causing a pneumothorax, and required prolonged intensive care treatment."

The following day Yhani was admitted to the Canberra Veterinary Hospital for treatment of her injuries. She was discharged from the Canberra Veterinary Hospital on 14 April 1997 and readmitted to the hospital on 23 July 1997 until 26 July 1997. Between 26 July 1997 and 31 October 1997 Yhani was agisted at Vineleigh Lodge. On 18 August 1997 Yhani was readmitted to Canberra Veterinary Hospital and remained in hospital until 5 September 1997.

9. Subject to a contest as to ownership of the horse, which the learned magistrate found against the appellant and which is not the subject of the appeal, the appellant did not contest those facts and the appellant's counsel conceded that the landing of the hot air balloon caused the injury to the horse.

10. The claim which the respondent made in the Magistrates Court was for special damages particularised as:

(a) Canberra Veterinary Hospital $10,150.60

(b) National Equestrian Centre $ 1,402.30

(c) Plaintiff's travel expenses $ 4,274.82

(d) Cromac Produce Pty Ltd $ 788.10

(e) Veterinary supplies and equipment $ 1,406.74

(f) Training fees for Yhani thrown away $ 840.00

(g) Vineleigh Lodge agistment $ 1,250.00

$20,112.56

(h) Expenses for replacement horse $ 3,579.90

TOTAL $23,691.56

and for general damages for the loss of the use of the horse in dressage events.

11. In respect of the special damages, the learned magistrate found:

The issues of contributory negligence on behalf of the plaintiff and the plaintiff's duty to the defendant to mitigate were significant issues in this matter. I have been assisted by Counsels' written submissions on these issues.

Whether there is a need to mitigate at the outset is a question of law (McGregor on Damages 16th Ed 322 - 323) and the onus of proving failure to mitigate lies with the defendant (Metal Fabrications (Vic) Pty Ltd v Kelcey (1986) VR 507). If the defendant fails to discharge the burden of proof in relation to mitigation it does not follow that the plaintiff will recover the whole of that plaintiff's expenditure. The burden will still lie with the plaintiff to establish the correct measure of her loss and, in the case of a chattel, either replacement or restoration and repair.

I will deal with the quantum of damages and then deal with the issues of mitigation and contributory negligence.

Special Damages

* The plaintiff incurred veterinary expenses at the Canberra Veterinary Hospital of $10,071.90 (Exhibit D). Counsel for the defence stated

"We don't challenge the reasonableness of the charges (the veterinary charges) which were made."

In the Schedule of Loss and Expenses (Exhibit E) the plaintiff claims

* the following expenses that she was invoiced by and paid to the National Equestrian Centre -

agistment from 17 March 1997 to 26 July 1997, $680.00

meadow hay and bedding straw, $ 58.00

services for tending horse $630.00

medical supplies $ 33.90

$1,402.30

* travel expenses of $4,274.82 which she incurred driving to and from the Canberra Veterinary Hospital between 18 March 1997 and 13 April 1997 and driving to and from the National Equestrian Centre between 14 April 1997 and 7 July 1997 as well as transfer expenses to and from the North Coast.

* chaff, hay and carrots from Cromac Produce Pty Ltd, $788.10, medication and equipment for the horse from various providers in the sum of $2,246.74 and agistment fees at Vineleigh Lodge between 26 July 1997 and 31 October 1997 of $1,250.00.

These expenses, excluding the Canberra Veterinary Hospital, total $9,961.96

The defendant did not call any evidence or challenge any of the plaintiff's evidence in relation to these expenses. I have had the opportunity of hearing and seeing the plaintiff giving her evidence. She impressed me as an honest witness. I am satisfied on the balance of probabilities that she incurred these expenses as a result of the horse's accident and subsequent injuries.

The plaintiff also claims

* "Training fees for Yhani thrown away, 24 lessons @ $35 a lesson - $840.00."

The plaintiff was asked in cross-examination -

"Q ... What do you say to this court on your oath is the wasted expenditure in relation to the lessons?

A The - the wasted expenditure in relation to the lessons are the training of the horse and the rider, which is myself with Janice Usherwood and which I had a lesson once a month over two years at about $35 a lesson, and it may have been more than that.

Q So that's your claim?

A And the horse is trained because you - you don't just train the rider, You train both.

..........

"Q Just dealing with the horse for the moment, Janice Usherwood trained the horse?

A Well, in dressage you both get trained at the one time but she trained me actually, and Asia trained the horse."

The plaintiff conceded she has retained some of the benefit from the dressage lessons that she had with Yhani. She said, above, Janice Usherwood trained her. Doing the best I can on the evidence before me and with the inferences legitimately available, I am satisfied on the balance of probabilities that half of the training fees the plaintiff spent on Yhani have been thrown away. I assess the training fees thrown away at 50% of $840.00 claimed, being $420.00.

The plaintiff claims

* agistment, shoeing, drenching and food expenses claimed by the plaintiff for a replacement horse from 17 March 1997 to 31 October 1997 which totalled $3,579.00.

Notwithstanding initial objections by defence counsel to the admission of the Schedule of Loss and Expenses including this item, the objection was subsequently withdrawn. I am satisfied from the plaintiff's evidence that she obtained a horse from the North Coast on a free lease pursuant to which she was required to maintain the horse while at the same time continuing to pay for similar expenses for Yhani. The amount expended and claimed of $3,579.00 was also not challenged by the defendant.

The Schedule of Loss and Expenses, adjusted accordingly, totals $23,192.86. I am not satisfied that any of the ancillary costs claimed in this schedule were either remote or unforeseeable.

12. In determining whether or not it was reasonable in all the circumstances for the respondent to attempt to reinstate the horse to a sound condition rather than replace it, the learned magistrate found:

The plaintiff seeks the reinstatement costs that she says she reasonably, in the circumstances, incurred. For her Yhani was not an inanimate chattel, but rather a living animal purchased and trained by her for dressage, a sport which appealed to the plaintiff's personality. Not surprisingly, she said she had formed an affectionate bond with Yhani during the years she had owned her. She had nurtured her and built her up into a horse that was able to participate in dressage events, and importantly, given that the plaintiff was a nervous rider, Yhani was the horse which she had ridden when undertaking dressage lessons herself in the two years preceding the accident. She attended Yhani in the stables on a twice-daily basis. Dr. Jacobs said of her relationship with Yhani prior to the injury

"I knew that she loved her horses, I knew that she looked after them well..."

She took an active role in Yhani's treatment after the accident including spending nights with her when she attended to veterinary treatment normally undertaken by a veterinary nurse.

Having observed the plaintiff giving evidence and having taken all of the evidence before me into account, I find on the balance of probabilities that her relationship with Yhani was unique. I accept that Yhani was not irreplaceable. However, there is no legal requirement that Yhani be so unique as to be irreplaceable before reinstatement will be considered reasonable.

The reinstatement expenses the plaintiff seeks to recover were incurred while she has was in regular consultation with her veterinarian as to Yhani's prognosis. Dr Jacobs said on 17 or 18 March 1997 he and Dr McGowan had a lot of discussions with the plaintiff as to the length and expense of the treatment. He said

"I think we talked in the sort of $3,000 to $5,000 range."

Dr Jacobs was asked in re-examination

"Q Did she use the words `money is no object'?

A No, I don't think she used those terms. She wanted to limit the bill to the degree it was necessary to do and she was very determined the horse should be saved."

The veterinary records show that on 20 March 1997 "horse much improved" and the following day "looking much better". The veterinary fees then totalled $2,311.50. On 25 March 199,7 when the veterinary expenses totalled $3,791.70, the veterinary records show that the Canberra Veterinary Hospital provided equipment to the plaintiff to reduce the expense. After eleven days of continual treatment, when the veterinary fees totalled $5,001.00, the records state "horse depressed in morning but very bright in afternoon and the temp is down." Three days later, on 2 April 1997 the records show "Has been going better than could have [sic] hoped for. Bright and alert. Starting to eat and drink." The veterinary expenses then totalled $5,949.00.

It appears from the veterinary records that the last veterinary inspection of Yhani occurred on 8 April 1997 when the veterinary expenses totalled $6,829.80. From 10 April 1997, apart from the cost of an ultrasound and drugs the veterinary fees remained under $50.00 per visit. On 14 April 1997 Yhani was released from the Canberra Veterinary Hospital to the National Equestrian Centre. The expenses then totalled $7,496.10. Yhani continued with therapy and medication until 24 April 1997, when inspected and treated for the aggravation of her wound by the farrier. Between 15 April 1997 and 24 April 1997 Yhani continued to be treated daily by a veterinary officer. The expenses totalled $7,987.70.

Thereafter, a veterinary officer periodically checked Yhani between 28 April 1997 and 23 July 1997, on which date Yhani was re-admitted to hospital for the wound to be scraped and scrubbed. Yhani remained in hospital until 26 July 1997 and thereafter was agisted at Vineleigh Lodge. The plaintiff incurred veterinary expenses during this period for inspection, ultrasound and supply of medication in the sum of $1,227.10. On 18 August 1997 Yhani was diagnosed with an abscess in the wound and treated at the Canberra Veterinary Hospital where she remained at a reduced rate until 5 September 1997. The treatment costs during this period were $935.80.

I am satisfied that the expert veterinary advice sought by the plaintiff was that Yhani would be able to be reinstated. Although the veterinary costs alone exceeded what I infer from the evidence was the replacement value of Yhani, the plaintiff was entitled to act on that advice. The veterinary expenses arose from an emergency and, given the nature of the intensive veterinary treatment, they escalated over a very short period of time. The plaintiff said she sought, relied on and acted upon expert veterinary advice in relation to Yhani's reinstatement.

The plaintiff and members of her family were actively in the care of Yhani. I accept her evidence of her involvement. Dr. Jacobs said

"Ms Cahir basically did a lot of those night time treatments to (a) reduce the expenses involved and (b) ensure that constant care was available for the horse which was necessary for it."

In Dr Jacobs's opinion there was no more economical way to treat Yhani than to keep her at the Canberra Veterinary Hospital. In an effort to keep the cost contained, Dr Jacobs said that if Yhani had been returned home the plaintiff would have incurred additional call out fees for veterinary care. Ultimately Yhani was discharged from the Canberra Veterinary Hospital on 26 July 1997 and moved to Vineleigh Lodge where veterinarians were staying who were able to provide the veterinary care. Yhani was readmitted to the Canberra Veterinary Hospital on 18 August 1997 for treatment of an abscess in the wound and discharged and transferred to Vineleigh Lodge again on 5 September 1997.

13. On the basis of advertisements in a magazine entitled "Horse Deals" for the months of March, April and May 1997, counsel for the appellant sought the agreement of Dr Jacobs and the respondent to the proposition that a replacement horse was available to the respondent at that time for less than $5,000. Neither would agree with that contention. The learned magistrate appears to have accepted their evidence that such a conclusion cannot be made solely on the basis of claims in advertisements in magazines without examination of the horse in question to establish its attributes and faults if any to determine whether it was an appropriate replacement for the injured horse. However, the learned magistrate did infer from the evidence that the replacement value of the horse was less than the veterinary costs alone incurred by the respondent in its reinstatement.

14. The appellant submitted to the learned magistrate that the respondent failed to mitigate her loss. He submitted that the respondent acting reasonably should have purchased another horse. As to this, the learned magistrate found:

Defence Counsel submitted a reasonable person in the plaintiff's position would have realised while she may not owe a high duty of care to the defendant, nevertheless she owed some duty of care and that it was incumbent on her, as a matter of law, to make a decision about what her damages ought to be. When the cost had become disproportionate to the value of Yhani and, given the guarded prognosis, a reasonable person would have decided to mitigate their loss and replace Yhani. This would have required the plaintiff to have considered euthanasia as an option in deciding whether to continue with lengthy and costly treatment. I am not satisfied that any reasonable person would prioritise the interest of the defendant (who admitted liability) by then deciding to purchase a replacement horse and seek only that the defendant pay the cost of that replacement and at the same time, continue with the treatment at her own expense with the likelihood that she would then own two horses.

I am satisfied that the plaintiff did raise the question of euthanasia with Dr Jacobs. Dr Jacobs confirmed this in his evidence -

"Q. Did you discuss with Mrs Cahir the possibility of euthanasia?

A. Certainly Pam did discuss that with me, yes".

Dr Jacobs also said

"My role (on euthanasia) is to present the options and help that owner to make the decisions according to their financial resources, their love of the horse and the horse's performance and ability".

The plaintiff's evidence was that at all times she sought expert veterinary advice and the advice from Dr Jacobs and Dr McGowan was that Yhani would recover. She said, further, that, in discussing euthanasia with Dr Jacobs, he did not discuss it with her "in supportive terms."

The plaintiff said

"I remember my question to him, and each time I asked that question he told me - he gave me no indication that the horse should be put down."

While Dr Jacobs' prognosis, on 18 March 1997, was "very clearly guarded" in relation to the initial treatment, the horse did make a full recovery although it did not return to dressage. At no time did Dr Jacobs advise the plaintiff to put the horse down. Dr Jacobs did not change his opinion as to his prognosis for Yhani's recovery over time. In fact, he said

"...It got better because the horse got better."

I am satisfied, from Dr. Jacob's evidence, that Yhani could not have been any more economically treated and that the Canberra Veterinary Hospital itself took all reasonable steps to contain their costs of treating Yhani.

I am satisfied that the plaintiff, at all times, took reasonable steps to keep her costs to a minimum. She said in cross-examination

"I tried very hard to limit the costs, I had discussion with the vet about whether or not it was right what I was doing."

She was also asked in cross-examination

"Q. You certainly weren't concerned to do the right thing by Mr Beaumont though were you?

A. I was concerned about money. Absolutely concerned about money. And that was why I did my very best to mitigate all the expenses that we could mitigate."

The onus of proving the plaintiff has failed to act reasonably in mitigation of her loss is on the defendant. (Munce v Vinidex [1974] 2 NSWLR 235)C.A.) The defendant did not call any evidence that may have assisted me. Neither the plaintiff nor Dr Jacobs were shaken in their evidence in relation to treating and reinstating Yhani being a reasonable course of action in the circumstances of this case.

Having considered all of the matters before me I find, on the balance of probabilities, that the plaintiff has done her "very best to mitigate all the expenses." The defendant has not discharged the burden of proof in relation to mitigation. Even if the defendant has failed to discharge that burden, the burden still lies with the plaintiff to establish the correct measure of her loss.

Given the circumstances the plaintiff found herself and Yhani in as a result of the defendant's negligence, her constant obtaining of Dr Jacobs' and Dr McGowan's expert advice, the fact that at no time did either of them recommend euthanasia or suggest Yhani would not recover, the history of her personal involvement with the horse in terms of time, money, commitment and effort before and after the accident, I find it would have been unreasonable to have stopped the veterinary treatment after the plaintiff had already incurred some thousands of dollars in fees which would have then been thrown away if she had chosen to euthanase Yhani (for a fee of less than $100.00 and carcass removal fee of $200.00) and to purchase a replacement horse.

I refer to the decision of Warren J in St Vincent's Hospital (Melbourne) Inc v University of Adelaide (supra). The plaintiff is not bound to nurse the interests of the contract breaker. She is only required to act reasonably and the standard of reasonableness is not high because this defendant is an admitted wrong doer. I endorse the observations of Lord McMillan in Banco du Portugal v Waterlow (supra)referred to by Warren J in the above case. I find the law, in the present case, is satisfied if I find the plaintiff has acted reasonably. She will not be held disentitled to recover the cost of such measures merely because this defendant suggests other measures, less burdensome on him, might have been taken.

Yhani was a living, breathing animal. Her performance and ability suited the plaintiff's purposes. I am satisfied, for the reasons set out above, that notwithstanding that the intrinsic value of Yhani was less than the costs incurred by the plaintiff in Yhani's reinstatement, it is reasonable in the particular circumstances of this matter, to allow the plaintiff to recover the reasonable costs of reinstatement.

15. In rejecting the claim of contributory negligence, the learned magistrate found that in December 1993, when the respondent agisted the horse at the Centre, it was then a new centre and its fencing, like the fencing on other properties inspected by the respondent, was wire fencing using uncapped star pickets. Further, it was found that at that time uncapped star picket fencing was normal in government agistment paddocks and most other agistment paddocks in the Australian Capital Territory and that the capping of the star picket would not necessarily have ensured or guaranteed the safety to the horse.

16. The learned magistrate, in respect of the contributory negligence issue, concluded:

Defence Counsel asked the plaintiff about the Telecom star picket which was on the boundary fence.

"Q. Do you accept that when you saw the star picket it had the appearance of something which if your horse ran into it might injure your horse?

A. I didn't think about that, but of course it the horse ran into it, it might injure the horse, as it did.

Q. And it was perfectly open to you to say to the owners in the National Equestrian Centre `Look, I think that star picket might be dangerous and would you do something about fencing it off?'

A. Had I believed it would be dangerous, it was open to me to do that."

The plaintiff had no control over the construction of and/or the materials used in the boundary fences as they belonged to the National Equestrian Centre. The fences were not the plaintiff's property. Neither, I am satisfied, did the plaintiff have any control over Telecom's placement of the star picket on the boundary fence of the National Equestrian Centre's paddock in which Yhani spent the daytime.

The plaintiff had signed a disclaimer (Exhibit F) provided by the National Equestrian Centre that stated

"I understand that all activities on Kerrabee (the National Equestrian Centre) are entirely at my own risk. I undertake to comply with all directions given by the Centre."

I infer from this document that even if the plaintiff had an opinion about the star pickets in the fencing, the National Equestrian Centre had the final say as to what if anything they would do about the fencing.

Defence Counsel conceded there was no issue in this case that the plaintiff ought to have agisted Yhani at some other property.

Notwithstanding intense cross-examination of the plaintiff on this issue of contributory negligence, I find the plaintiff's evidence was not shaken. Having considered all of the evidence before me I am not satisfied, on the balance of probabilities, that the allegation of contributory negligence is made out.

CONSIDERATION OF THE ISSUES ON THE APPEAL

17. On 17 March 1997 the respondent's horse was seriously injured as a direct result of the appellant's negligence in the manner in which he operated his hot air balloon. The evidence of Dr Kenneth Jacobs, the treating veterinary surgeon, was that the horse was so severely injured at that time that it either had to be treated or put down and that there was no question of leaving it to see if it would recover. In his view, without treatment the horse would have died. His evidence was that on 18 March 1997 he advised the respondent that she had two options: "she could either treat the horse and it would cost a lot of money, and there was a guarded outlook for the horse even with treatment, or we could euthanase the horse". The respondent decided to treat the horse with a view to restoring it to its former sound condition and to that end expended moneys which she sought to recover from the appellant as damages in those proceedings.

18. The respondent was entitled to be restored to the position in which she would have been placed if the wrongful act had not occurred; that is, she was entitled to restitutio in integrum: South Australia v Johnson (1982) 42 ALR 161 (HC) at 169 - 170; Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1 at 13.

19. The respondent's right to restitutio in integrum meant that she was entitled to full compensation for the loss which she had sustained in consequence of the appellant's wrong, subject to the rules as to remoteness of damage and the respondent's duty to mitigate her loss: Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125 at 143. That compensation was to be measured by reference to her particular circumstances and to what she had lost by the wrongful conduct: Radford v De Froberville [1977] 1 WLR 1262 at 1272; Evans v Balog [1976] 1 NSWLR 36 (CA) at 39.

20. The question before the learned magistrate was what was reasonable expenditure to make good the damage because she was entitled to recover as damages all the reasonable expenditure she incurred as a result of the wrongful conduct of the appellant: Compania Financiera "Soleada" SA v Hamoor Tanker Corporation Inc [1981] 1 WLR 274 (CA) at 281, 282, 283 - 284.

21. The standard of reasonableness to be applied to the respondent's action in expending the moneys the subject of her claim was considered by the English Court of Appeal in Moore v DER Ltd [1971] 1 WLR 1476 where Davies LJ, with whom Karminski and Stamp LJJ agreed, said (at 1479):

The principle which is applicable to these cases is clearly stated in Halsbury's Laws of England, 3rd ed. (1955), vol. 11, p. 263, para. 437 and in Mayne and McGregor on Damages, 12th ed. (1961), p. 145, para. 158. I will read the passage from Mayne and McGregor on Damages:

"Although the plaintiff must act with the defendant's as well as with his own interests in mind, he is only required to act reasonably, and the standard of reasonableness is not high in view of the fact that the defendant is an admitted wrongdoer. Lord Macmillan put this point well for contract in Banco de Portugal v. Waterlow & Sons Ltd. [1932] UKHL 1; [1932] A.C. 452, 506: his remarks apply equally to tort. He said: `Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him have been taken.' Whether the plaintiff has acted reasonably is in every case a question of fact, not of law."

The last sentence is based on observations of Bankes L.J. and Scrutton L.J. in Payzu Ltd. v. Saunders [1919] 2 K.B. 581, 588, 589.

22. As appears from the relevant statement of principle from Mayne and McGregor on Damages (now see McGregor on Damages, 16th ed, pars 322 and 323), the remarks of Lord Macmillan in Banco de Portugal v Waterlow apply equally with respect to claims for damages for tortious wrong as well as claims for damages for breach of contract. The standard of reasonableness as stated by Lord Macmillan has been regularly applied as a correct statement of the applicable standard in Australia: see, for example, Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5 at 9; Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 (CA) at 355; Davidson v JS Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 at 15; Segenhoe Ltd v Akins (1990) 29 NSWLR 569 at 582; National Australia Bank Ltd v Hann Nominees Pty Ltd [1999] FCA 1262 at [188]; Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 at [187]; St Vincent's Hospital (Melbourne) Inc v University of Adelaide [2002] VSC 297 at [35].

23. In Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited [1998] HCA 38; (1998) 192 CLR 603, Hayne J stated the principle in the following way at [134]:

... There is no injustice in leaving the wrongdoer to bear the consequences of the decisions made in response to that wrongdoing by the party harmed - so long as those decisions are reasonable. Reasonableness informs much of the law of contract and, in particular, the assessment of damages for breach... This means, for example, that if the party wronged has acted reasonably, the wrongdoer may be liable for all the loss that the plaintiff has suffered, even if the plaintiff's conduct has increased the loss... Conversely, the party wronged is not bound to take all possible steps to mitigate its loss, only those steps which are reasonable...

24. Whether the expenditure of the respondent is seen as damages or alternatively expenditure taken to attempt to mitigate or avoid a loss as a result of the appellant's wrongdoing, ie, to prevent the death of the horse and to ameliorate its injuries, the costs are recoverable if reasonable. If reasonably incurred in mitigation, they are recoverable even though the resulting damage is greater than it would have been if the mitigating steps had not been taken: McGregor on Damages, 16th ed, par 333; The World Beauty [1970] P 144 (CA) at 156; Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited at [134].

25. The reasonableness of the decision not to put the horse down and to incur expenses to treat the horse's injuries with a view to restoring it to its pre-injury condition was to be determined against the particular circumstances which confronted the respondent on 17 and 18 March 1997. Those circumstances were entirely of the appellant's making. The practical alternatives were to commence immediate treatment and seek to recover the expenses incurred as damages or to euthanase the horse to put it out of its suffering and obtain a replacement dressage horse which satisfied the respondent's needs as a rider and recover the cost of replacement together with the costs of euthanasing the horse and other consequential loss as damages from the appellant. It was always reasonably foreseeable that the respondent would incur expense in adopting one or other of these two courses. The expense if reasonable would be recoverable as foreseeable damages.

26. It was a relevant circumstance that the horse was an animate chattel, was a horse which the respondent had put substantial time and money into since she acquired it in order to improve its general condition and to train with it as a horse upon which she could compete in dressage horse riding, and was a horse which suited her particular requirements as a rider.

27. Contrary to the appellant's submission, the learned magistrate did not apply a lesser and different standard of reasonableness because the injured property was animate than she would have applied if the damaged property had been inanimate, for example, a damaged vehicle.

28. What the learned magistrate did was to treat the fact that the horse was an injured suffering animal which required an immediate decision as to its treatment as one of the relevant circumstances against which reasonableness was to tested. In contradistinction to a damaged motor car, the respondent did not have the luxury of obtaining detailed estimates of the cost of repairing the car, the time to investigate whether there was an available market for a replacement car and the cost of such a replacement, to ascertain the cost of hiring a substitute vehicle until a replacement vehicle could be obtained, and then, to determine whether there were economic or other reasons which would indicate which of the two available options was the reasonable course to take. Nor did the learned magistrate err in taking into account that the horse had special attributes on account of training, size and temperament, which were particularly valued by the respondent, in determining whether it was reasonable to treat the horse rather than to euthanase the horse and seek to acquire a suitable replacement: see Anthoness v Bland Shire Council (1960) 60 SR(NSW) 659 (FC) at 665 - 666; O'Grady v Westminster Scaffolding [1962] 2 Lloyd's Rep 238; Murphy v Brown (1985) 1 NSWLR 131 at 136; Collin v Botany Fork & Crane Hire [1993] ACTSC 9; (1993) 113 FLR 83 at 87.

29. Contrary to the appellant's submission, there was no applicable legal principle which limited the respondent's right to compensation to payment of an amount equal to the cost of a replacement horse. The object of the exercise was to give the respondent reparation for the appellant's wrongful act and that object was able to be achieved in different ways depending upon the circumstances of the case and subject to the overriding requirements of what was reasonable: Evans v Balog at 39; Davidson v JS Gilbert Fabrications Pty Ltd at 5; Payton v Brooks [1974] RTR 169 (CA) at 176. To the extent that the authorities indicate a prima facie rule of thumb or preference, it is for the cost of repairs to the damaged chattel: The London Corporation [1935] P 70 at 77; Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 at 99; Darbishire v Warran [1963] 1 WLR 1067 (CA) at 1071; Belz v Oslob Pty Ltd [1989] BC 8901306 at 4 - 5 (NSWCA). However, there is a contrary view that there is no prima facie rule of thumb: see, for example, Jansen v Dewhurst [1969] VR 421 at 486.

30. The respondent submitted before the learned magistrate that it was unreasonable to expend 47 times the original cost of the horse on its recovery because it was 14 years old, had vision in one eye only, was an ex-race horse and had had occurrences of lameness. None of these conditions was shown by the appellant on the evidence before the learned magistrate to impede or render the horse unfit to engage in dressage competition. Indeed, Dr Jacobs, when asked, was of the view that the horse, being an ex-race horse, being blind in one eye and having the episodes of lameness recorded in his medical records did not render the horse unsound or render it unfit for dressage. From his knowledge of the horse at and prior to the date of its injury in March 1997, he said he was unaware of any physical attribute of the horse which would then have rendered the horse unfit for dressage competition.

31. The appellant contended before the learned magistrate that there was no evidence of the value of the horse other than the purchase price of $500 paid for it in 1993. In those circumstances, counsel for the appellant submitted that the learned magistrate "was obliged to judge the reasonableness of the respondent's conduct from the position that the injured animal was worth $500 and no more in terms of market value. It was incumbent upon the respondent/plaintiff to establish market value in order to demonstrate the reasonableness and she did not attempt to do that except by reference to the original purchase price". This submission, in my view, misstates or misunderstands the meaning of "market value" when used in the context of the assessment of damages for a wrongful injury to a chattel.

32. The value of the chattel in the sense of what the owner would have received for it if it was sold, in an available market, if one existed on the date on which it was damaged, is irrelevant. The market value is the cost of obtaining a replacement chattel having the same or substantially the same characteristics of the chattel damaged if there exists a market in which such a substitute could be obtained: Darbishire v Warran at 1074, 1078; Jansen v Dewhurst at 427; Hoad v Scone Motors Pty Ltd at 99 - 100; Belz v Oslob Pty Ltd at 4 - 5. What is relevant is the use to which the chattel was put before it was injured, and what use it is intended to be put in the future, as this is material for determining what the measure of damages should be: Hoad v Scone Motors Pty Ltd at 100. There was no onus on the respondent to prove whether or not she could have obtained a replacement horse which satisfied her personal requirements for a horse for dressage competition, and if one was available, the cost of it. The respondent was required to prove that the moneys she expended were a direct consequence of the appellant's tortious conduct and that it was reasonable to expend such moneys.

33. The appellant submitted before the learned magistrate that, given the prognosis of Dr Jacobs, the decision to expend the money on treatment was unreasonable and that the respondent's actions were driven by emotion with a "money was no object" attitude without proper regard for the appellant's interests. The appellant submitted that neither the respondent nor the learned magistrate properly considered the alternative assessment based on the obtaining of a replacement horse.

34. I have set out earlier in these reasons at pars [8], [11], [12] and [14] the findings and reasoning of the learned magistrate. Her Worship concluded her reasons in this way:

Given my findings above, it becomes a question of what should the defendant be asked to pay. Prior to litigation the defendant had offered to pay the plaintiff the then worth of the horse. The plaintiff now seeks approximately 47 times the amount she paid when she purchased the horse. There was no evidence of its value at the date of accident or at the date when the plaintiff retired it to the North Coast. I can infer from the plaintiff's evidence that Yhani was in far better condition at the date of the accident than at the date of purchase. There was no evidence to the contrary. While it is clear from the evidence that Yhani had had two periods of temporary lameness prior to the accident, the horse had been incident free since October 1996. Dr Jacobs' opinion was that the prior incidents had not rendered Yhani unsuitable for dressage, or for any other purpose.

On 15 October 2001, Dr Jacobs noted that Yhani had no vision in the left eye. In his report dated 15 January 2002 (Exhibit C) Dr Jacobs stated

"In my opinion the eye injury was long standing and did not affect the horses (sic) ability to perform. Horses have very little binocular vision (where the same item is evaluated by both eyes simultaneously), and as a result are able to function very well with one eye."

At all times the plaintiff has sought to recover the amount she expended on the horse's treatment and associated expenses following the accident. The decision to proceed with the treatment of the horse was the plaintiff's. She accepted full responsibility for it. I am satisfied, from the evidence, that while the decision was made in some haste, given the emergency the plaintiff was faced with, I find it was not a hasty decision. I find the plaintiff responsibly and reasonably consulted with the veterinarians looking after Yhani before making the initial and subsequent decisions to proceed with the treatment of the horse. I find her decisions were informed decisions at the time they were made. Viewed objectively, I find in the circumstances then confronting the plaintiff, her decisions to follow the veterinary advice and proceed with treatment to reinstate Yhani were reasonable.

Further I am not satisfied that she, at any time, disregarded the cost element involved in the horse's treatment. Both she and Dr Jacobs gave unchallenged evidence of the steps each took to contain the costs of treatment. I find the plaintiff proceeded with the treatment in the initial expectation that the veterinary costs would be between $3,000 and $5,000. Even at that early stage the plaintiff and her family were involved in the night shifts nursing Yhani. The plaintiff subsequently sourced medical supplies from friends at cheaper rates than she could get from the Canberra Veterinary Hospital.

I find, first and foremost in the plaintiff's mind was "doing the right thing by the horse". The best advice she was getting was that the horse was not beyond recovery, which ultimately proved correct. I find cost was a factor for the plaintiff. In doing what she could to contain the costs and through Dr Jacobs doing what he could to contain the costs, I find that the plaintiff was acting reasonably and thereby looking after the defendant's interests, even if she was not conscious of that at the time.

In reaching my decision I have only had the evidence of the plaintiff and Dr Jacobs to assist me. Defence Counsel submitted that the plaintiff could and should have called evidence from Janice Usherwood, a person apparently with skill and experience in horse matters, a person of standing who knew Yhani and the plaintiff and who could speak with authority about the horse. Defence Counsel further submitted a Jones and Dunkel inference of the strongest sort is raised by the plaintiff's failure to call her. However I am not so persuaded. I find that the plaintiff's case was not that Yhani had status, standing or quality for any one other than herself. While others had ridden Yhani, it was the horse on which the plaintiff had spent a number of years learning the art of dressage. The plaintiff was a mature and serious woman. She began her association with horses in 1992, when her daughter took up dressage. The plaintiff had not had any dressage training. She said she was a nervous rider but was comfortable and becoming confident riding Yhani. Yhani was herself, participating in unofficial dressage events, having learnt this skill after she was purchased by the plaintiff.

The plaintiff also said Asia Bartoshevski, who at the time of the hearing was in Germany, had trained Yhani at times and had ridden her in the unofficial dressage events. Ms Bartoshevski did not give evidence. For the reasons stated above in relation to Janice Usherwood I am not satisfied that a Jones and Dunkel inference is raised in relation to the plaintiff not calling this witness.

35. There was, in my view, ample evidence to support the findings which the learned magistrate made and there is no demonstrable legal error in her ultimate findings set out above. I agree, for the reasons given by the learned magistrate, that this was not a case where the absence to call Ms Usherwood or Ms Bartoshevski called for the drawing of inferences adverse to the respondent of the type the subject of Jones v Dunkel[1959] HCA 8; (1959) 101 CLR 298. The appellant sought to argue by reference to certain evidence of Dr Jacobs that the respondent had no basis to believe that the horse would survive and would return to its sound pre-accident condition and that he was left with the impression that "money was no object" to the respondent. That evidence has to be taken in context. The totality of the evidence was not that the respondent was told or led to believe that the horse was injured beyond redemption or that if saved it would be defective and unsound for dressage competition or that the cost of treating the horse was incapable of estimation or was open-ended. The respondent was given an original estimate of around $3,000 to $5,000. Dr Jacobs gave the following evidence in cross-examination which, in my view, makes clear the import of the advice given to the respondent before she made the decision to treat the horse's injuries and not to put it down:

All right. And you made it perfectly plain to her before she made that decision, did you, that there were all these imponderables, that is whether or not it was possible to control the pneumothorax in the first place?---Yes.

The possibility of sequestrums ---Yes.

Other foreign bodies?---Yes.

And things of that ilk, and indeed do you believe you told her it was possible that the horse might not be functional even after all of that? Functional as a dressage mount?---Yes, I - I - we had discussions regarding that. My opinion was that - that the horse should - should, if it can get over all those problems, should have been - should have been functional as a mount again, yes. I - I would have been reluctant to - I would have - if I really thought, for instance, that it couldn't have - it couldn't have performed again as intended use I would have been more cautious about - you know, I would have been more cautious than otherwise about advising - advising in respect of the - advising her to go ahead with treatment.

This evidence is reflected in the respondent's evidence of the import of the advice she was being given by Dr Jacobs.

36. The appellant submits that the learned magistrate did not deal with the alternative possibility of obtaining a substitute horse. The only evidence as to a market for dressage horses and the cost of a replacement horse available to the learned magistrate was found in the for sale advertisements in the March, April and May editions of a magazine entitled "Horse Deals". As I stated earlier in these reasons at par [13], neither Dr Jacobs nor the respondent would accept, on the basis of those advertisements, that a suitable replacement horse could have been obtained for $5,000 or less. It goes without saying that neither had inspected any of the horses or knew of their suitability, or otherwise. The respondent stated that she in fact went into the market to obtain a replacement horse and that she could not find one which had the qualities she required, and which existed in her injured horse, for $5,000 or less.

37. The learned magistrate dealt specifically with the appellant's contentions that the respondent should have obtained a substitute horse. Her Worship said:

Replacement

Counsel for the defendant submitted the plaintiff is only entitled to the cost of reinstatement as opposed to recovering the value of the property destroyed (replacement) if it is reasonable to have the property repaired and reinstated. Counsel tendered three "Horse Deals" magazines for the months of March 1997, April 1997 and May 1997 (Exhibits 2, 3 and 4). Inter alia, various horses and equine equipment are advertised for sale in these magazines. Both Dr. Jacobs and the plaintiff were shown numerous photographs of horses advertised for sale in these magazines in the price range between $2,800 and $10,000 and questioned about their suitability as a replacement horse for Yhani at the time of the injury and subsequent treatment. The photographs were of varying sizes and quality. Some of the photographs were in colour and others in black and white. Details of the horses provided by the sellers varied.

Not surprisingly Dr Jacobs, while agreeing some of the horses did not appear to have obvious confirmation defects in the photographs, stated on more than one occasion that he would want to personally "have a look at the horse" before giving his considered opinion. The plaintiff also said that she would "be wanting to assess the horse for myself" to personally see the horses which were advertised to see "if they lived up to their claims":

Defence Counsel asked the plaintiff

"Q. Leaving aside your sentimental attachment to Yhani and accepting for the moment that you could have gone off and saved Yhani at whatever expense you chose, you had available to you, didn't you the option of looking for a replacement mount?

A. I did have that available to me.

Q. And I'm suggesting that based on this limited survey of the advertised livestock at that time a replacement mount would have been available at less than $5,000.

A. I don't agree.

and

Q. Well, let me ask you this. If at the start of the treatment you had been told that in veterinary treatment alone an expenditure exceeding $10,000 - 20 times the initial purchase of the horse - was involved, would you have gone ahead and incurred that expense?

A. I can't answer that question now, I simply cannot answer that question. I'd have had to make that decision in the paddock, and at that stage I was taken over with - with the event that was in front of me. So it's an impossible question to ask us. With the experience that I've got now I don't know. I really don't know. But I know I've invested a lot in the horse, a lot of funds, a lot of personal energy and a lot of commitment and effort.

and

Q. ... you wouldn't seriously argue with this proposition, would you, that if you had turned your mind to it in the days, let's say the two or three days after this accident, it would have been possible for you to buy a perfectly suitable replacement animal for less than $5,000.00?

A. I would contest that.

Q. Because you have carried out some research on the subject, have you?

A. Yes, I have. I've actually bought .....another horse."

The plaintiff said in cross-examination she had bought another horse, Nugget, "a bit before Yhani" for $750.00 for her daughter to ride. The plaintiff denied that Nugget would have been more than a suitable replacement for Yhani. She said he was too small.

While it appeared to Defence Counsel that the plaintiff had a reason for every alternative he suggested other than the one of reinstatement she had embarked upon being appropriate, that was her evidence. She was not shaken in cross- examination. Mrs Pamela Cahir was an impressive witness.

38. The findings of the learned magistrate were open on the evidence. The evidence constituted by the advertisements in the tendered magazines went no further than there were sellers offering horses for sale as suitable for dressage in a price range up to $10,000. The appellant has not made out error on the part of the learned magistrate in coming to the conclusion which she did on all of the evidence before her which touched on this issue.

39. As part of the appellant's challenge to the learned magistrate's finding of reasonableness, he sought to challenge the credibility finding made by her Worship. It was submitted that the learned magistrate erred in basing her credibility finding on the evidence of the respondent on non-contentious matters, namely the outlaying by the respondent of expenditure in the amounts claimed for the purposes claimed in the schedule Exhibit E. In doing so, it was submitted the learned magistrate ignored or misunderstood inconsistent or unsatisfactory evidence of the respondent on other matters.

40. The learned magistrate dealt with the quantum of the expenses incurred in the following way:

Special Damages

* The plaintiff incurred veterinary expenses at the Canberra Veterinary Hospital of $10,071.90 (Exhibit D). Counsel for the defence stated

"We don't challenge the reasonableness of the charges (the veterinary charges) which were made."

In the Schedule of Loss and Expenses (Exhibit E) the plaintiff claims

* the following expenses that she was invoiced by and paid to the National Equestrian Centre -

agistment from 17 March 1997 to 26 July 1997, $680.00

meadow hay and bedding straw, $ 58.00

services for tending horse $630.00

medical supplies $ 33.90

$1,402.30

* travel expenses of $4,274.82 which she incurred driving to and from the Canberra Veterinary Hospital between 18 March 1997 and 13 April 1997 and driving to and from the National Equestrian Centre between 14 April 1997 and 7 July 1997 as well as transfer expenses to and from the North Coast.

* chaff, hay and carrots from Cromac Produce Pty Ltd, $788.10, medication and equipment for the horse from various providers in the sum of $2,246.74 and agistment fees at Vineleigh Lodge between 26 July 1997 and 31 October 1997 of $1,250.00.

These expenses, excluding the Canberra Veterinary Hospital, total $9,961.96

The defendant did not call any evidence or challenge any of the plaintiff's evidence in relation to these expenses. I have had the opportunity of hearing and seeing the plaintiff giving her evidence. She impressed me as an honest witness. I am satisfied on the balance of probabilities that she incurred these expenses as a result of the horse's accident and subsequent injuries.

41. As appears from the above, the admission only went to the veterinary expenses, the respondent being left to prove up the other expenses. This she did by oral evidence which was not challenged. The acceptance of the respondent as an honest witness in respect of the incurring of these expenses was open to the learned magistrate to find and is totally unexceptional. There is nothing in the reasoning of the learned magistrate on this issue to indicate that she used the credibility finding in relation to it for any other purpose or allowed it to distract her from a proper consideration of credit in respect of other matters raised by the appellant.

42. The appellant did not raise all the matters which he now contends required an adverse credibility finding against the respondent in submissions to the learned magistrate. Some issues were raised and contrary to the submissions on the appeal were dealt with by the learned magistrate.

43. The appellant submitted that the learned magistrate failed to deal with the respondent's giving incorrect answers to a request for particulars prior to trial. This is incorrect. The learned magistrate dealt with the matter as part of her consideration of the respondent's claim for general damages. The learned magistrate said:

The first level of registration with the Equestrian Federation of Australia is "Pre Novice". The second level of registration is "Novice". Yhani was not registered with the Equestrian Federation of Australia. The event at Hall was not an Equestrian Federation of Australia event. It was Yhani's first competition. The plaintiff said that Yhani won a second place at the Hall showjumping.

The plaintiff said, in her answers to the defendant's Further and Better Particulars (Exhibit 1), furnished on 16 August 1999, that Yhani had participated at Novice Level in dressage at Hall. However, under cross-examination she said that she had not suggested that Yhani competed at the official Equestrian Federation of Australia Novice level at Hall as that event was not an Equestrian Federation of Australia event and Yhani did not score official points. She also readily acknowledged that the reference to Wagga in her answers to the Further and Better Particulars was a mistake. She said she had muddled Wagga with Macarthur.

The plaintiff said that Asia Bartoshevski had received favourable written comments from the judge of the Macarthur event but that those written comments were in Asia Bartoshevski's possession. They were not produced at court. The plaintiff did not call evidence from Asia Bartoshevski or any person attending these events that might have assisted me in determining this head of damage.

Having had the opportunity of observing the plaintiff's demeanour in the witness box, I am satisfied that her evidence was given honestly, that she made concessions where appropriate, and in all of the circumstances I find that her mistake in her answers to the Further and Better Particulars should not negatively impact on the weight I attach to her evidence.

44. The appellant further submitted that the learned magistrate did not deal with what the appellant contends were unsatisfactory answers of the respondent as to why she did not acquire a replacement horse for less than $5,000. Again the submission is incorrect. The learned magistrate said:

Defence Counsel asked the plaintiff

"Q. Leaving aside your sentimental attachment to Yhani and accepting for the moment that you could have gone off and saved Yhani at whatever expense you chose, you had available to you, didn't you the option of looking for a replacement mount?

A. I did have that available to me.

Q. And I'm suggesting that based on this limited survey of the advertised livestock at that time a replacement mount would have been available at less than $5,000.

A. I don't agree.

and

Q. Well, let me ask you this. If at the start of the treatment you had been told that in veterinary treatment alone an expenditure exceeding $10,000 - 20 times the initial purchase of the horse - was involved, would you have gone ahead and incurred that expense?

A. I can't answer that question now, I simply cannot answer that question. I'd have had to make that decision in the paddock, and at that stage I was taken over with - with the event that was in front of me. So it's an impossible question to ask us. With the experience that I've got now I don't know. I really don't know. But I know I've invested a lot in the horse, a lot of funds, a lot of personal energy and a lot of commitment and effort.

and

Q. ... you wouldn't seriously argue with this proposition, would you, that if you had turned your mind to it in the days, let's say the two or three days after this accident, it would have been possible for you to buy a perfectly suitable replacement animal for less than $5,000.00?

A. I would contest that.

Q. Because you have carried out some research on the subject, have you?

A. Yes, I have. I've actually bought .....another horse."

The plaintiff said in cross-examination she had bought another horse, Nugget, "a bit before Yhani" for $750.00 for her daughter to ride. The plaintiff denied that Nugget would have been more than a suitable replacement for Yhani. She said he was too small.

While it appeared to Defence Counsel that the plaintiff had a reason for every alternative he suggested other than the one of reinstatement she had embarked upon being appropriate, that was her evidence. She was not shaken in cross- examination. Mrs Pamela Cahir was an impressive witness.

45. The way the learned magistrate dealt with these issues does not involve any demonstrable error. It was perfectly open to her Worship to find as she did having seen and heard the witness tested, as she was, in cross-examination.

46. The appellant submitted that the learned magistrate had failed to address inconsistent evidence given by the respondent as to the costs thrown away in training the horse for dressage. On the first occasion that she gave evidence, the respondent said:

MR WHITELAW: Now we'll just take it in - there's two aspects of this, there's the training for you - - -?---Yes.

- - - personally and then there's the training for the horse?---Absolutely.

Okay. Just dealing with the horse for the moment, Janice Usherwood trained the horse?---Well, in dressage you both get trained at the one time, but she trained me actually, and Asia trained the horse.

Okay. And when you were trained were you actually riding the horse during that training exercise?---Absolutely.

How long did this training of both you and the horse continue prior to March 1997?---About two years.

And what was the cost to you of the training of this - training yourself?---$35 a lesson, and I had a lesson I think once a month or twice a month, I can't actually remember now, but that's detailed as you've got them. And then I ride her in between practising what I've been taught hopefully.

And you paid $35 a lesson for - - -?---Yes, two years.

- - -for two years?---Mm.

Do you have any records of those payments?---Yes, I - yes, I did, I gave them - I think - I'm not - actually, I don't know that I do because you paid by cash and you didn't get receipts so ---

Okay. Now, where did the training take place?---In the arena at the National Equestrian Centre.

47. On the second occasion that the respondent gave evidence, said in her cross-examination:

MR PAPPAS: Do you remember giving evidence on the last occasion about the lessons that you got and the lessons that the horse, Yhani, got?---Yes, I do.

After you purchased the animal?---Yes, I do.

What do you say the true situation is in relation to the lessons which Yhani got?---I don't understand your question.

Well, how many lessons and over what period of time was Yhani schooled in the discipline of dressage?---She was schooled while I was in the saddle of her and she was schooled by Asia when Asia was in the saddle. And Asia rode her every day and had numbers of lessons with a level 3 instructor .

Well, how many?---I could - I can't answer that, but many.

Did you have some memory of it when you gave evidence on 23 October?---Not the number. The number I had were - - -

No, the number the horse had with Ms Bartoshevski?---I wouldn't be able - I wouldn't have been able to quantify it on 23 October either .

Well, did you know how much each lesson cost you?---When Asia learnt she paid for those lessons. When I learned I paid for them and yes, I did know, but I couldn't tell you the price of the - now.

Sorry, do you say that Ms Bartoshevski was paying herself to be taught, is that right?---For her and Yhani, yes, she was.

So you weren't doing that?---Not - not for her lessons. I was paying for my own.

Well, we'll come to yours in a minute, I'm just dealing with the lessons that you told us about on the last occasion, which was the training of the horse under Ms Bartoshevski, you remember that?---Yes, I do.

And you broke it clearly into two categories, didn't you, your own training and the horse's training?---I did, but my training was with Janet Usherwood.

That's correct. That's right. And you told us that you got lessons, "She trained me and Asia trained the horse?---Well, Janet Usherwood trained us both and Asia trained the horse.

...

Well, that's what my note says, so please feel free to disagree with me if you say my note is inaccurate of your evidence?---I'm in this yes/no bind, but I certainly had lessons on Yhani, I certainly paid for lessons on Yhani, the issue of paying for lessons is that I paid cash and that there was a - a register that they had and I certainly had lessons on a regular basis with Yhani about once a month.

Now I'm sorry can we just divorce your lessons - - -?---Yes.

- - - from the horse's lessons, do you see, because your lessons haven't been wasted have they? You've still got the benefit of your lessons. You didn't run into a fence did you?---I got some of the benefit of my lessons.

You are making a claim, I want to suggest, for the cost of schooling Yhani under Ms Bartoshevski, aren't you?---No, no, I'm not actually.

Not, I see. Well, didn't you tell us on the last occasion that the horse had been trained over two years?---M'mm.

At $35 a lesson?---That's me and the horse, yes.

No, no, let me assure you that is your evidence in relation to Ms Bartoshevski on the last occasion?---No.

That's wrong, is it?---That is wrong.

Well, let's go back to it. What do you say to this court on your oath is the wasted expenditure in relation to lessons?---The - the wasted expenditure in relation to the lessons are the training of the horse and the rider which is myself with Janice Usherwood and which I had a lesson once a month over two years at about $35 a lesson, and it may have been more than that.

So that's your claim?---And the horse's training, because you - you don't just train the rider, you train both.

And Ms Bartoshevski, if I now understand you, is paying to have her own lessons?---Yes, she did and I - - -

And she was riding Yhani?---Yes, she was.

So it's not that money that you're claiming?---No, I'm not.

I see. But insofar as you may have led the court to believe that Ms Bartoshevski trained your horse at $35 a lesson, which was then lost to you, that was just - - -?---I didn't lead the court to believe that.

- - - that was just confused, was it, on the last occasion?---I wasn't confused.

Let me just put this to you, if your evidence on the last occasion was to the effect that you had paid - you had paid Ms Bartoshevski $35 a lesson over two years, one or two lessons per month, in cash, you had no receipts, to train the horse, that was just wrong, was it?---I didn't give that evidence.

If that was the thrust of the evidence that was just wrong, was it?---Well, I didn't give that evidence.

48. The respondent did not give evidence on the earlier occasion that she paid $35 a lesson to Ms Bartoshevski to train the horse. Her evidence has been consistent on both occasions namely that she and the horse were trained together by Ms Usherwood at a cost of $35 a lesson and that the horse was also separately trained by Ms Bartoshevski.

49. The learned magistrate in her reasons acknowledged the respondent's concession that she retained some of the benefit from the dressage lessons she had had with the horse and that part of the $35 a lesson went to her training as well as to the training of the horse. Accordingly, the learned magistrate assessed the component of the fee relating to the training of the horse thrown away as 50% and awarded damages on that basis.

50. There is nothing in the evidence of the respondent which required the learned magistrate to conclude that the respondent was not a credible witness on this issue or generally. Nor did the evidence require that the learned magistrate award nothing under this head of consequential loss.

51. As I have stated, other matters now complained of were never raised as going to credit before the learned magistrate. One of them concerns evidence given by the respondent as to her daughter winning the New South Wales Dressage Championship. Counsel for the appellant submitted on the appeal that the respondent said in evidence that the daughter had ridden a horse called "Nugget" when she won the dressage championship, but had later recanted from that evidence and said that the daughter was riding a different horse. A fair reading of the transcript does not in my view support the contention that at the time the respondent's daughter became New South Wales Dressage Champion, as opposed to when she was competing regularly before she became New South Wales Dressage Champion, she was riding a horse called "Nugget". In answer to questions put by counsel for the appellant the respondent gave the following evidence:

MR PAPPAS: Mrs Cahir, I think we were at the point where I asked you when it was your daughter had been New South Wales dressage novice champion?---I can't remember that. I really can't remember that. I'll just try and track back, can I? Can I do that?

MR PAPPAS: Well, was it before or after Yhani was injured?---To be perfectly frank I don't actually remember that either. Jenny had been competing regularly and she certainly became New South Wales dressage champion.

At the novice level?---At the novice level.

And was she riding a horse that you had purchased for her?---Yes, she was.

What was the name of that horse?---Nugget.

52. Later in her cross-examination the respondent gave the following evidence:

You wanted a horse for your daughter that had a quiet disposition? ---Absolutely.

That was easily schooled?---Yes.

And was not going to harm your daughter?---Yes.

And was going to learn with your daughter?---Yes.

And you acquired such an animal in the form of Nugget?---Yes.

And Nugget went on to greatness with your daughter?---Well, not Nugget - - -

Perhaps greatness with a small "g"?---Yes. But not Nugget, her next horse went on to greatness, if you want to - but she and Nugget competed successfully.

All right. Well, wasn't Nugget the mount that your daughter won the New South Wales - - -?---No, Tavestock Kalinski(?) was the one she won the New South - - -

Well, see madam, I asked you this, didn't I?---No, you didn't actually.

Yes, I did, with respect. I asked you which horse your daughter had ridden when she won the New South Wales dressage novice championship?---Well, I misunderstood.

And you told us Nugget, $750?---Well, no, I misunderstood you.

Did you?---Yes. With Tavestock Kalinski and I had him on lease.

You see, at one stage your claim in these proceedings included a claim for the cost of buying Tavestock, didn't it?---No, it didn't ever. Tavestock Marisa.

A different horse, is it?---Absolutely.

Related to your daughter's horse?---Yes, he is.

53. There is nothing in the second statement which would indicate that the second statement is inherently false or that the two statements cannot stand together. This evidence did not in my view require that an adverse credibility finding be made by the learned magistrate against the respondent.

54. The appellant submitted that the learned magistrate erred in allowing the respondent the full cost of housing and maintaining the temporary replacement horse "Coco" for a full year after the respondent had retired the injured horse and during a period when she was not incurring any expense in relation to the injured horse.

55. The learned magistrate dealt with the respondent's claim in the following way:

The plaintiff claims

* agistment, shoeing, drenching and food expenses claimed by the plaintiff for a replacement horse from 17 March 1997 to 31 October 1997 which totalled $3,579.00.

Notwithstanding initial objections by defence counsel to the admission of the Schedule of Loss and Expenses including this item, the objection was subsequently withdrawn. I am satisfied from the plaintiff's evidence that she obtained a horse from the North Coast on a free lease pursuant to which she was required to maintain the horse while at the same time continuing to pay for similar expenses for Yhani. The amount expended and claimed of $3,579.00 was also not challenged by the defendant.

56. The objection to the inclusion of this item in a schedule which became Exhibit E was made by counsel for the appellant on the basis that, prior to trial, the item had not previously been part of the plaintiff's claim and no particulars of the expense had been provided. The objection was withdrawn after it was established that the item was in a schedule previously sent to the appellant's solicitors and had been the subject of discussion between the parties (see Appeal Book pp 183, 186 - 187).

57. The claim was not the subject of cross-examination of the respondent. Nor was it the subject of submission to the learned magistrate on the basis now advanced or any other basis which challenged that the expenses had been incurred, that they were other than reasonable in amount or incurred at a time when the respondent was continuing to incur expenses for the maintenance and upkeep of the injured horse which was the basis upon which counsel for the respondent sought recovery of them before the learned magistrate.

58. The respondent gave the following evidence as to the acquisition of the horse named "Coco":

During the course of Yhani's recovery did you pursue your own horse riding activities?---I did, I - I rode a horse for someone else and - - -

What was the name of that horse?---For the life of me I can't remember at this moment.

Okay, was it somebody else's horse?---Yes, it was.

Right. And did you ride any other horses?---Later in the period, and I'm lost for the date now, I did what we call in the sector got a free lease, you'd take the horse on and you pay all of its costs, and that horse was called Coco and - - -

Where did you get that horse from?---I got him from a stud on the north coast, he belonged to the parents of the person who was across from me in the stables.

And sorry, did you say where those people were - - -?---On the north coast, just north of Taree, it ...(indistinct)...

Okay. And did you actually pay to acquire the horse?---I didn't pay money to acquire the horse, I just paid money to travel him down to Canberra.

All right. And did you ride the horse - - -?---I did.

- - - in - or attempt to ride the horse in Canberra?---I did, I - I - he came down -he'd been on - out on the grass too, and he came down and I built him up to really good condition and I rode him and actually began to improve.

Right. And did you keep Coco, was it, to - - -?---No, he got a bit frisky with a good feed.

And were you able - did you form an opinion as to whether Coco was a suitable horse for you and your abilities?---I had him for nearly 10 months, it wasn't me who formed the opinion that he wasn't suitable for me. Janice Usherwood, who I was still getting lessons from, said to me - - -

Well, she gave you certain advice - - -?---Yes.

- - - on that subject?---Absolutely.

And on the basis of that advice you decided to return Coco to - - -?---I did.

- - - his owners?---I did.

And when was that approximately that you returned Coco?---Goodness me.

Sorry?---I said goodness me. 1997/1998. I think probably about October `98.

And while you had Coco did you pay for his feed and maintenance and - - -?---I did.

- - - that sort of thing?---I did.

And I think subsequently, after Coco, after you returned Coco I think you've obtained another horse?---I did.

And you now pursue your horse riding activities - - -?---I do.

- - - and that is a horse named Tavestock Lorrisa?---That's right.

59. The learned magistrate made the following findings as to the acquisition of the substitute horse:

On 30 October 1997 the plaintiff sent Yhani to Lower Portland where she continues to reside. The plaintiff included these travel costs in her claim.

In September 1997 the plaintiff took possession of "Coco" on a free lease from a stud on the north coast. The plaintiff said she built Coco up and rode him. She continued to receive lessons from Janice Usherwood. However, after leasing Coco for ten months, the plaintiff returned Coco to his owner in October 1998 as she said she found Coco unsuitable.

In October 1998 the plaintiff acquired "Tavistock Larissa" as a replacement horse for Yhani. The plaintiff has not included the costs incurred with this purchase in her claim.

I am satisfied from the evidence and, on the balance of probabilities, that Yhani was not suitable for dressage after her recovery from her injuries.

60. The appellant's case on appeal is based on the difference between the retirement date of the injured horse and the date of return of "Coco". It is the alleged one year period. The appellant also contends that there was no evidence upon which the learned magistrate could have found that "Coco" was acquired in September 1997. The acquisition date of "Coco" was not in issue. The learned magistrate was given a chronology as an aide by counsel for the respondent during his opening of the evidence and makes reference to it in relation to the acquisition of the horse "Tavestock Lorrisa" (see Appeal Book 104). The reasonable inference is that the September reference to the acquisition of "Coco" came from that chronology.

61. The amounts claimed indicate that they are for a lesser period than one year. The claim for shoeing/drenching would indicate a period of between six to eight months depending when the drenching was done. The feed bill indicates a period of 31 weeks and the agistment figure is not broken down and may or may not include the cost of bringing the horse to Canberra and of its return to its owners, which costs the respondent deposed she incurred.

62. The respondent having sworn that she incurred these expenses, during the period she was incurring costs in maintaining the injured animal in the period 17 March 1997 to 31 October 1997, as the cost of a replacement mount and there being no issue raised as to the reasonableness of the cost or the entitlement to a replacement horse, other than that no expense ought to have been incurred because it was unreasonable to treat the horse rather than replace it, it was open to the learned magistrate to accept the evidence and make the findings which she did.

63. The position now taken by the appellant does not make out appealable error sufficient for this Court to intervene.

64. I turn now to the issue of contributory negligence.

65. The appellant alleges that the learned magistrate was in error in finding that the star picket on which the horse was impaled was part of the paddock fence when in fact it was separate from the fence. Having made that error, it was submitted that the finding of no contributory negligence based on the common use of star picket and wire fencing in the ACT, as sworn to by Dr Jacobs, was not sustainable.

66. The learned magistrate made no factual error as to the location of the star picket. The learned magistrate drew a distinction between the star picket fence which belonged to the Centre and the star picket placed by Telecom "on the boundary fence of the National Equestrian Centre's paddock in which Yhani spent the daytime".

67. The evidence was that the Telecom star picket was hard against the boundary fence wires, the only difference between it and the fence posts being that the fence wires did not pass through the Telecom picket and it had a Telecom plaque attached to the top of it. For all practical purposes, the Telecom star picket stood on the same footing as the star pickets in the fence.

68. I agree with the learned magistrate for the reason which she gave which are recorded in pars [15] and [16] above that no case of contributory negligence was made out on the evidence against the respondent. The presence of the Telecom star picket exposed the horse to no greater danger than any other star picket in the fence. There was no evidence that either the Centre or the respondent was entitled to remove it and to suggest, as was put in cross-examination, that it should have been separately fenced off was neither realistic nor necessary having regard to the position of the star picket hard against the fence. No conduct of the respondent contributed to the injury to the horse which had spent some years in the paddock with the star picket in place without injury. The horse was injured solely as a result of the appellant's negligence.

CONCLUSION ON APPEAL

69. The learned magistrate addressed each of the issues which arose for determination on the hearing before her and which she set out on pages 5 and 6 of her reasons. She applied the appropriate legal principles to determine the proper assessment of the respondent's damages and whether the expenditure was reasonable in her and the appellant's interests in all the circumstances. Her Worship also correctly applied the applicable legal principles to the question of the respondent's mitigation of her loss. For the reasons given above, I am not persuaded that the learned magistrate has made any errors in her findings of fact. The appellant has failed to make out appealable error and the appeal will be dismissed. Costs should follow the event.

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