Mr Hobbs was quietly riding his horse “Buck” on the grassy strip alongside Cooramin Street, Wagga Wagga.

There was nothing to suggest that an accident might occur. It was a clear day. The horse was walking its regular route. The horse was “traffic broke” and was “good near cars” according to Mr Hobbs.

Ms Fairall was driving her car along the street in the other direction. The road surface was bitumen with no line markings.

As the car passed, the horse shied and bucked, causing Mr Hobbs to be thrown off the horse and to land on the concrete kerb and gutter. He suffered severe injuries (multiple fractures).

The trial judge (Neilson DCJ) decided that this was a motor accident and that Ms Fairall had caused it by driving negligently. He assessed damages of $339,242.40, after a 30% reduction for contributory negligence.

The Court of Appeal of the Supreme Court of New South Wales overturned the decision and decided that the injury was not caused by a motor accident.

The decision is reported as Fairall v Hobbs [2017] NSWCA 82 (Payne JA; McColl AP and Leeming JA agreeing).

Why was the injury not caused by a motor accident?

To recover damages under the Motor Accidents Compensation Act 1999 (NSW), the person injured must prove that a motor accident occurred, as defined in section 3:

"motor accident" means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person … [as] a result of and … during:

(a) the driving of the vehicle, …

The Court of Appeal emphasised that the use or operation of a motor vehicle must have a “very substantial causative role” in causing the injury, before it comes within the definition of a motor accident.

In this case, Mr Hobbs needed to prove that Ms Fairall was driving her motor vehicle negligently, and this caused the horse to be “spooked”, buck the rider and cause the injury.

To prove negligence, the requirements of the Civil Liability Act 2002 (NSW) need to be satisfied. In particular, there must be a duty of care posited under s 5B, and the requirements for causation must be satisfied under s 5D.

The Court of Appeal found that Mr Hobbs failed:

  • To identify a duty of care (under s 5B):

For a duty of care to exist, it was necessary to prove that Ms Fairall knew that there was a risk of harm to the horse rider. Her admission that she needed to ‘drop her speed somewhere below the speed limit’ to pass the horse safely was not considered by the Court to be sufficient to identify a duty of care.

  • To prove causation (under s 5D):

Although it did not find a duty of care, for completeness, the Court went on to examine whether Mr Hobbs had proved that Ms Fairall caused the accident, that is, ‘but for the speed and proximity of [her] vehicle, the horse would not have reacted as it did’.

Mr Hobbs alleged that Ms Fairall caused the accident:

  1. by driving the motor vehicle at an excessive speed, above the speed limit of 50 km per hour; and
  2. by driving too close to the horse and not close enough to the kerb and gutter on her side of the street as she passed the horse.

The Court found that Mr Hobbs failed to prove causation because:

  1. The horse regularly walked in that area and was regularly passed by cars driving at the speed that Ms Fairhall was driving her car;
  2. Ms Fairall was driving on the opposite side of the street to the horse;
  3. The expert evidence relied upon by Mr Hobbs was not admissible – ‘that the horse may have “perceived” the appellants’ vehicle as a “sudden threat” and bucked in an attempt to “escape” that “threat” was not based on [the expert’s] his training, study or experience.

Therefore by failing to identify a duty of care and by failing to prove causation, Mr Hobbs failed to prove that his injuries were caused as a result of the use or operation of a motor vehicle – there was no motor accident.

But the door remains open that in an appropriate case, a horse rider who is injured as a result of the use or operation of a motor vehicle, can recover damages from the driver.

The delivery of a lengthy oral judgment was not justified

Riding a horse as a means of transportation was not the only aspect of the case that was old-fashioned. Trial Judge Garry Neilson delivered his reasons for judgment orally (ex tempore) in court, taking a little under 4 days - 17 hours to do so, for a trial which had taken 7 days. The reasons are 138 pages long.

The lengthy oral judgment attracted a sharp rebuke from the senior members of the bench of the Court of Appeal:

McColl AP

There is no explanation … as to why his Honour delivered a judgment of such length while sitting in court, rather than, as is customary with a judgment of such length, handing down written reasons.

Devoting four days to the oral delivery of a judgment cannot, with respect, be consistent with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) insofar as that requires the “quick and cheap” disposition of proceedings nor can it, in any event, be a useful deployment of judicial resources in a busy trial court.

Leeming JA

Two centuries ago, all judgments were delivered orally. A century later, the tradition was in the process of being substantially eroded, but there were occasions when even extensive and important judgments were delivered orally. 

Oral delivery of reasons occupying more than one day was, and is, extremely unusual. 

There is a public cost in taking that course, in that a courtroom and court officers and court reporters are made unavailable for the hearing of other cases. There is a private cost, borne by both parties but in large measure by the losing litigant, of paying for representatives to attend over four days. And it is difficult to see how the overriding purpose of facilitating the “just, quick and cheap” resolution of proceedings is consistent with giving oral judgment over four days.

In short, not only was District Court Judge Garry Nielson wrong in applying the law, but he was also wrong to waste court time, costs and legal fees by delivering a lengthy oral judgment rather than handing down written reasons.