IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
GENERAL LIST		

Case No.  CI-20-02061

ANGELA NICOLE TURNER	Plaintiff	
		
v		
		
BRETT CONLON RACING PTY LTD	Defendant	

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JUDGE:	HIS HONOUR JUDGE SMITH	
WHERE HELD:	Melbourne	
DATE OF HEARING:	24, 25, 26, 27, 30 and 31 August, and 1 and 2 September 2021	
DATE OF JUDGMENT:	15 September 2021	
CASE MAY BE CITED AS:	Turner v Brett Conlon Racing Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1312		

REASONS FOR JUDGMENT

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Subject:	NEGLIGENCE
Catchwords:	Personal injuries claim – plaintiff fell from racehorse in training – plaintiff employed by defendant as a track rider – whether defendant negligent in directing the plaintiff to ride the horse in trackwork – whether plaintiff had previously advised the defendant that she could not properly control the horse and had recently fallen from it – whether the defendant knew before the plaintiff was injured that the horse was unsuitable for her to ride – whether, in the circumstances, the defendant had been negligent and such negligence was a cause of her injuries – alleged breach of Occupational Health and Safety Regulations 2007
Legislation Cited:	Occupational Health and Safety Regulations 2007, r 1.1.5, 3.1.1, 3.1.2, 3.1.3; Evidence Act 2008, s59, s63
Judgment:	Judgment for the plaintiff.  Pain and suffering damages assessed in the sum of $185,000.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr P J Hayes QC with
Ms M S Cameron	Adviceline Injury Lawyers	
			
For the Defendant	Mr W R Middleton QC with
Ms B A Myers	Thomson Geer Lawyers	

HIS HONOUR:

1	On 25 November 2016, the plaintiff, Angela Turner (“Turner”), fell from a horse at a small training track at Moorooduc, near Mornington in Victoria (“the Accident”). She suffered injuries in the Accident.  
2	At the time, she was employed by Brett Conlon Racing Pty Ltd, the defendant, as a track-work rider and stable-hand.  The business of the defendant was to train racehorses and prepare them for racing.  Brett Conlon (“Conlon”) was the director and shareholder of the defendant and a licensed racehorse trainer.  I am satisfied that Conlon was the manager of the defendant and responsible for the horse training activities of the defendant.  In these reasons I shall refer to Conlon and the defendant interchangeably.  
3	In this proceeding, Turner claims damages from Conlon in respect of injuries suffered by her in the Accident.  The causes of action pleaded are:
•	Negligence – that Conlon failed to discharge the duty of care owed by him to Turner and that his negligence was a cause of her injuries; and
•	Breach of clauses 3.1.1, 3.1.2 and 3.1.3 of the Occupational Health and Safety Regulations 2007 (“the Regulations”) and that his breaches were a cause of her injuries.   
4	When the proceeding was commenced, a third cause of action of breach by Conlon of the terms of Turner’s contract of employment was pleaded.  This third cause of action was abandoned late in the trial, after the close of evidence.  
5	It is not in issue that at all material times, the defendant owed a duty to Turner as her employer – a duty to:
(a)	take all reasonable steps to prevent Turner from being injured in the course of her employment;
(b)	provide a safe system of work; and
(c)	provide a safe place of work.
6	The parties agree that, at the time she was injured, Turner was riding a racehorse trained by Conlon named “Mr Intensity” (“the Horse”).
7	Turner alleges that the Horse had behavioural issues and that Conlon was aware of this.  She alleges that she found the Horse to be generally difficult to handle and control; that he had a tendency to buck, pig-root, throw his head about, and that he was too strong for her.  She alleges that she had previously expressed concerns to the defendant regarding her riding the Horse and told him of the problems she had experienced riding the Horse.  She alleges that Conlon was aware of the problems experienced by her when riding the Horse and that, by requiring her to ride the Horse on the day of the Accident, Conlon failed to discharge the duty of care owed by him to her and was in breach of the Regulations.  
8	Conversely, Conlon alleges that the Horse had no known behavioural problems, had never exhibited any behavioural problems to his knowledge, and that he was unaware of Turner ever having problems with the Horse before the Accident.  He denies any negligence or breach of the Regulations.
Background
9	Turner is currently aged twenty-seven.  As at November 2016, she was aged twenty-two.
10	Turner was an experienced horse-rider, in the sense that she had ridden horses socially from a very young age.  She took part in pony club and trail-riding activities on her own pony.  In her childhood, she rode regularly on weekends and sometimes after school.
11	In her teenage years, she became involved in the riding of endurance horses, although she did not ride in endurance events.
12	Turner first became involved with riding racehorses when she was about eighteen.  She rode trackwork for David Brown, whom she described as a small-scale hobby trainer.  She had regularly ridden racehorses whilst studying at school and afterwards.  
13	Prior to 25 November 2016, Turner had had a number of falls from horses – ponies, endurance horses, and thoroughbred racehorses.  On about three occasions, she had been taken to hospital after such falls.  She does not appear to have suffered from any injuries of any significance before the Accident.
14	About a week or two before the Accident, she had been riding the Horse around a small training track at Conlon’s stables at Moorooduc.  She was cantering around the home track when the Horse shied at something and dropped his head.  She was thrown over the Horse’s shoulder.  She caught the Horse and walked him back to the stables area.  Apart from some soreness, she was not injured.  She did not attend any doctor or hospital.  Her evidence was that she had told Conlon of this fall.  He denied that he had been told of it.
15	Turner had commenced working for Conlon in September 2015.  At that time, he had stables at Tyabb.  In late December 2015 or early January 2016, Conlon left Tyabb and leased stables at Balnarring.  In mid-2016, he left Balnarring and leased the stables at Moorooduc, near Mornington.  In late 2016, after the plaintiff’s Accident, he left Moorooduc and leased stables at Cranbourne.  Turner worked for Conlon at Tyabb, Balnarring, and Moorooduc, but not at Cranbourne.
16	Turner rode only slow trackwork.  She was not a licensed jockey.  She never rode horses in races.  I accept that racehorses in training do a combination of slow and fast work.  I accept Turner’s evidence was that she had not ridden racehorses in fast work, and that her involvement with racehorses had been restricted to slow work – cantering, trotting, and walking.  I reject Conlon’s evidence that Turner also rode fast work.
17	The property at Moorooduc encompassed stables and the small “training track” to which I have previously referred.  This was referred to at the trial as “the home track”.  It consisted of an oval-shaped sandy track of about 700 metres in circumference.  It had no rail.  The home track was not big enough for horses to perform fast work.  When fast work was required as part of their training, horses were floated to the Mornington Racecourse,  where they performed such fast work as required.  On those occasions, I accept Turner’s evidence that she did not ride the horses, but that they were ridden in fast work by various more experienced track-work riders or jockeys.
18	Conlon kept an average of six to eight horses in the stables when Turner worked for him.  She rode the Horse and others in the stable regularly.  
19	Her evidence was that, by about May 2016, she had been experiencing difficulties with the Horse.  She described him as a big, strong horse, and that she could not hold him.  He pulled, jumped around, threw his head about, bucked, and pig rooted.  She said that the Horse “put the wind up her”.  She was fearful about riding him.  She told Conlon of this.  He denied being told this by her.
20	Her evidence was that, after telling Conlon of the problems she was experiencing with the Horse, a more senior and experienced track rider named Fabian Gunning (“Gunning”) was employed by Conlon and rode the Horse on the home track.  Turner described Gunning as being a much better rider than her – stronger, more experienced, and more confident.
21	In 2016, the Horse developed problems with an abscess on the hoof of its right front leg.  Turner believed that this was probably in about May 2016.  However, veterinary records indicate that he was treated on two later dates by veterinary surgeons from Advantage Equine Veterinary Clinic for that abscess.
22	Dr Emma Wood examined the Horse on 29 September 2016 and diagnosed an abscess on his right front hoof.  She treated it with a poultice and medication.
23	About a week later, on 5 October 2016, Dr Vallance, from the same clinic, attended on the Horse and examined the hoof, noting that the abscess was still draining from the toe.  He pared away more of the sole of the hoof to encourage further drainage and commenced treatment with penicillin.  He made a note that he would x-ray the hoof if there was no improvement in the next two days. There was no evidence that the Horse had thereafter been x-rayed.
24	Dr Vallance described an abscess as a very common condition with racehorses.  He said that he saw them every day of the year.  He said it was an infection, like a pimple under a fingernail which required drainage and sometimes antibiotics.  
25	Turner gave evidence that, on occasions when she had ridden the Horse, she had thought that the Horse “wasn’t right and he [w]as sore … in front from memory”.  She was not sure as to the date or dates that she noted this.  She said that she was referring to the Horse’s front leg or legs.
The Plaintiff’s evidence of complaints to Conlon
26	Turner gave evidence that she had told Conlon of her problems with the Horse on a number of occasions.  It is convenient to set them out together:
•	In about May 2016, she began to struggle with the Horse.  She told Conlon that she was struggling and that he was too big, too strong, and too much for her.  She said that Gunning started to ride him after this.  
•	On occasions when Gunning was not present to ride the Horse, Conlon directed Turner to do so.  She gave evidence that she had told Conlon that she did not like riding the Horse, that he was too big and strong for her and that Gunning should be riding him.  Conlon had said to her that Gunning was not there and he had to get the Horse worked.  
•	A week or two before the Accident, Gunning had not turned up and she had to ride the Horse.  She said she had been cantering around the home track when the Horse shied at something and dropped his head, throwing her over his shoulder.  She said she told Conlon that she had come off and that the Horse was “an arse-hole”.  He had asked if she was okay and said, “You’ll be right mate”.
•	Her evidence was that, on 25 November 2016, she was again directed to ride the Horse by Conlon, who told her that Gunning could not ride him that day.  She told Conlon she did not want to ride him because he was too strong.  He had said to her “You’ll be right.  He’s got to be worked.  I’ll walk you out onto the track.”  The Accident occurred on that date.
•	She said she did ride him on those occasions because she did not want to lose her job.
27	Conlon gave evidence that none of those conversations took place and that at no time did Turner tell him that she had had any difficulties with the Horse.  He gave evidence that, had Turner at any time made such complaints about the Horse, he would not have required her to ride him. 
28	Conlon and Turner agreed that in 2015, Conlon had a horse named Gala Moshe in his stable and that she was a very difficult horse to handle around the stables and a difficult horse to ride.  After complaining about Gala Moshe to Conlon, she was not required to ride her again.  The evidence did not disclose who rode her thereafter.
Other witnesses
Margaret Simmonds
29	Turner’s mother, Margaret Simmonds, gave evidence but mainly concerning the effect Turner’s injuries had on her. 
30	Mrs Simmonds did recall that Turner told her of a fall she had from the Horse “not that much before the actual Accident.  She was bucked off.” 
31	Objection was taken concerning this evidence on the basis that it was hearsay evidence.  After hearing submissions, I ruled the evidence was admissible.
32	Section 59 of the Evidence Act 2008 provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that can reasonably be supposed that the person intended to assert by the representation – the Hearsay Rule.
33	In the context of this case, Mrs Simmonds’ evidence was that Turner had represented to her that she had had a fall from the particular Horse and that the representation had been made to her not that much before the Accident in which Turner had been injured.
34	Section 64(3) of that Act provides that, if the person who made the representation (here, Turner), has been or is to be called to give evidence, the Hearsay Rule does not apply to evidence of the representation that is given by –
(a)	that person (Turner); or
(b)	a person (Simmonds) who saw, heard, or otherwise perceived the representation being made. 	
35	Here, Turner had given evidence before Mrs Simmonds.  Her evidence was that she had told Conlon of the earlier fall from the Horse.  Turner had not been asked in evidence-in-chief or in cross-examination about who else (if anyone) she had told of that earlier fall.
36	There was no application made by the defendant to ask any further questions of Turner by way of additional cross-examination. 
37	The allegation of the earlier fall from the Horse in about mid-November 2016 had been made in Turner’s original Statement of Claim.
38	I refused the defendant’s objection.  Turner was clearly available to be recalled had an application been made on behalf of the defendant. 
39	The evidence of Mrs Simmonds concerning the complaint of the earlier fall from the Horse, although not crucial to the success of Turner’s claim, did corroborate Turner’s evidence regarding that earlier fall. 
Jason Wilson
40	Wilson’s evidence was, in substance:
•	He was aged fifty and had been a track rider for fifty years since the age of fifteen.
•	He was born and raised in New Zealand.  He met Conlon about thirty years ago in New Zealand.
•	He came to live in Australia in 1996.
•	In both New Zealand and Australia, he had been employed as a trackwork rider by some of the biggest and most successful trainers in those countries.
•	He thought that he commenced riding trackwork for Conlon in about “June, July” 2016, but note my comments below.  
•	He recalled riding a horse named Mr Intensity.  He rode him over a period of one preparation of about three months.  At the time, he was either a two-year-old or a three-year-old.
He rode for Conlon six days per week at Cranbourne Racecourse only. He did not ride for Conlon whilst Conlon was training at Moorooduc.
•	He could not say if Mr Intensity took part in any trials in that time.
•	He had no knowledge of any injuries suffered by the Horse or of any veterinary treatment given to the Horse.
•	Mr Intensity had left no impression on him.  He was just a horse.
•	He never saw Mr Intensity misbehave.
41	Conlon’s evidence was clear that:
(a)	He trained at Moorooduc until moving to Cranbourne on or about 21 December 2016. Wilson did not ride trackwork for Conlon anywhere but Cranbourne.
(b)	The Horse was retired from race training in January 2017 when he was diagnosed with a significant respiratory condition (as a “roarer”) immediately after a poor jump out.  The Horse never resumed training and never got to compete in a race.
(c)	The Horse was a four-year-old from 1 August 2016 and would have turned five on 1 August 2017.
42	Taking those seemingly uncontentious matters into account, I am not satisfied that Wilson ever rode the Horse. If he started work for Conlon in June or July 2016, it was nearly six months before Conlon moved to Cranbourne, and Wilson’s evidence was that he only rode the horse at Cranbourne. Whether he deliberately misled the Court or is merely confused about the identity of horses that he rode for Conlon, I cannot say. 
43	On the balance of probabilities, I find that he never rode the Horse in fast or slow work.  His evidence is of no assistance to me.
Isabella Perez-Wood
44	Ms Perez-Wood (“Perez”) had worked for Conlon as a stable hand when he trained at Tyabb, Balnarring and then at Moorooduc. She said she had commenced with Conlon at Tyabb in January 2016. 
45	She worked on a volunteer basis and was not paid.
46	She worked 3 to 5 mornings per week. She was picked up from her home around 4 -4.30 am by Turner or sometimes by Conlon. On weekdays she left work at about 8.30 am to go to school. Her duties included mucking out stables, hosing horses down, and administering feed. She did no riding.
47	She recalled the Horse and recalled that on some occasions she had saddled him, unsaddled him, hosed him down, and rugged him. Sometimes she would leg up track riders.
48	She never had any problem with the Horse. He was just a typical, playful, young horse. She recalled Turner as the Horse’s main track rider.
49	 She did not recall the Horse being sore with a hoof abscess.
50	Turner had not complained to her that the Horse had behaved badly. In the 2 weeks before the Accident involving Turner, she was not aware that the Horse had bucked her off.
51	She recalled Fabian Gunning. He worked there but not full-time. She did not recall if he rode the Horse.
52	She got on very well with Turner. She did not talk to Turner about her riding of the horses or about their behaviour. 
53	I accepted Perez as an honest witness who did her best to recall matters about which she was asked. She was probably incorrect concerning the date she commenced working at Tyabb. I did not find that her evidence was inconsistent with that of Turner.
Dr Emma Wood
54	Dr Wood examined the Horse briefly on one occasion – 29 September 2016.  She diagnosed that he had a right front hoof abscess. On the occasion of that examination she did not note any behavioural issue.
55	I find her evidence of little assistance.  Accepting that the Horse demonstrated no behavioural problems in a brief examination about two months prior to the Accident, whilst he was not being ridden, does not indicate that he had no behavioural problems whilst being ridden by Turner.
Dr Stuart Vallance
56	Dr Vallance had examined the Horse on 5 October 2016, about a week after Dr Wood.
57	He attended to reassess the abscess because “it wasn’t responding as they usually do”. He treated the Horse with a poultice, injected Depocillin (penicillin/antibiotic), administered Equisedan (a sedative), and pared the sole of the hoof to encourage drainage of the abscess.
58	The records show that the sedative (Equisedan) was supplied again about nine days later, although it appears that neither Dr Vallance nor Dr Wood attended to administer it.
59	On 20 January 2017 (about two months after the Accident),  Dr Vallance diagnosed that the Horse was suffering from a serious respiratory condition (roarer).  As a consequence, the Horse was retired at that time.  He had never started in a race.
Dr Andrew McLean
60	Dr McLean had been engaged by Turner’s solicitors to respond to a number of questions posed by them.  He prepared a written report dated 1 April 2021.  He had never seen the Horse; had never spoken to or met the plaintiff and had never seen the plaintiff ride a horse.
61	He did not know how long the Horse had been off work following the diagnosis of the hoof abscess but noted the contents of an affidavit sworn by Turner which had been supplied to him by her solicitors in which Turner had said that the Horse had a “few days off”.  
62	Dr McLean had no knowledge of what dietary changes the Horse had undergone at various times (if any).  He had assumed that the Horse was galloping at the time of Turner’s Accident and conceded that he was wrong in assuming that.  
63	I accept his oral evidence that a horse might misbehave and throw his head back because of pain that he was suffering at the time he was working; or because he shied, or when reacting to the rider pulling on the reins.
64	I accept his evidence that pain resulting from a foot abscess could result in bucking and behavioural problems for some time. He gave further viva voce evidence that the behavioural problems were more likely a chronic problem than an acute one.
65	On page 14 of Dr McLean’s report, he noted that the Horse’s problematic behaviour seemed (on the basis of what he had been told) to be more chronic than acute as it seemed to have largely arisen following the Horse’s foot abscess.
66	I accept his evidence that a horse which had been out of work for a time following a spell or an injury could display conduct he described as  “post-inhibitory rebound” – high energy, jumping about and the like.  A trainer would often need to alter the horse’s feed to one involving less carbohydrates.
67	I accept his evidence that one strategy in dealing with post-inhibitory rebound effects following a spell or a break, was to employ an experienced rider in a larger saddle (for example a stock saddle with longer stirrups).  He considered that such a treatment would only be required for a few days until the horse showed no signs of any behavioural problems and was able to go forward, stop and turn easily from controls of the rider.
68	On the basis of Dr McLean’s qualifications and curriculum vitae, he has significant knowledge of horses generally and, in particular, the behaviour of horses.  His PhD thesis was on “The mental processes of the horse and their consequences for training”.  He has an extensive riding history.  
69	Although he is not a veterinary surgeon, he has extensive experience in investigating behavioural aspects of the horse.  In 1995, he founded the Australian Equine Behavioural Centre which deals with the breaking in and general training and retraining of horses.  Fifty per cent of such horses were racehorses with breaking in or retraining problems.
70	His qualifications and CV were unchallenged.  They include the writing of many publications concerning training and management of equine behaviour in racehorses.
71	During the trial, I rejected submissions made by counsel for Conlon, that Dr McLean’s report ought not be admitted into evidence.  I accept that some of the contents of his report deal with his conclusions as to what the Court should find, and his assumptions as to the law, and ignore those opinions.
72	Further, insofar as his opinions are based upon facts which are not proven or allegations which I have rejected, then those opinions are of no assistance to me.
73	There were, however, a number of Dr McLean’s opinions which come within his area of expertise and which I consider can and should be accepted by me.
74	Dr McLean set out, on pages 6 and 7 of his report, factual matters about which he had been advised and the assumptions he had made.   A number of his opinions were based on those assumptions.
75	The opinions of Dr McLean which I find relevant, and which I accept, are:
•	Thoroughbred horses have the most  innate “flight responses” of all domestic animals.
•	The flight responses show up as increased reactivity, including such behaviours as bolting (running out of control), shying (sudden swerving), rearing and bucking.
•	Should a horse suddenly raise its head and neck, it may impact the rider’s head and upper body, causing serious injury.
•	Young and race-fit thoroughbreds are the most prone to hyperreactivity and flight responses.
•	Hyperreactivity and flight responses can be triggered by an increase in carbohydrates and sugar in the diet of the horse.
•	It is common practice amongst horse trainers across all equestrian codes to reduce carbohydrate intake when horses are not in work.
•	Fearful riders could transmit their fear to a horse.  An already hyperactive horse may become increasingly more dangerous in those circumstances.
•	A horse which had been off work because of injury on return would be expected to show increased post-inhibitory rebound.
•	If a horse has a known propensity towards flight response behaviours, there are steps which can be taken to mitigate those –
•	the horse could be sent for behavioural retraining;
•	the horse’s diet can be addressed, usually by a reduction in carbohydrates;
•	lunging the horse to quell “post inhibitory rebound” or taking the sting out of the horse by means of lunging, swimming, or horse walkers.
The accident
76	The evidence of Turner concerning 25 November 2016 was, in summary:
•	She had earlier ridden trackwork on a horse named The Implicator without any problem.  
•	On returning to the stables, she noted that the Horse was saddled up ready for work.  Conlon was the person who usually saddled up the horses prior to them being worked.  
•	She told Conlon she did not want to ride the Horse as described above.  It is not in issue that he required her to ride the Horse.
•	Conlon legged her up into the saddle and walked the Horse to the track, a distance of about 100 metres from the stables area.
•	As instructed by Conlon, Turner trotted the Horse for a lap and then commenced to canter.  She commenced to experience problems.  She struggled to hold the Horse.  He was throwing his head around.
•	She recalled passing the gate onto the track where she could see Conlon.  He turned away to light a cigarette.
•	The Horse dropped his head towards the ground.  She swore at him.  She pulled the Horse’s head upwards and she believed the Horse’s head collided with her face.
•	She did not immediately fall off.  She was dazed and recalled swaying in the saddle.  She has no clear memory of what occurred next.  
•	She recalled waking up on the ground being attended to by ambulance officers.  Conlon’s wife, Lyndell, was also there.  Turner was found lying unconscious on the far side of the home track.  
77	There were no witnesses to the Accident. The varying topography of the track meant that this section of the home track where Turner was found was not visible from where Conlon was positioned.  He did not see her fall from the Horse.  Conlon had been alerted to the Accident when the Horse returned around the track, riderless.  He telephoned his wife to come.  He drove a vehicle around the track and saw Turner on the ground.  An ambulance was called.
78	Turner was taken to Frankston Hospital by ambulance and underwent surgery the following day.
79	In all of the circumstances, I have made a number of findings which I consider are directly relevant to the liability issues in this proceeding.
(a)	I find that Turner had ridden the Horse on many occasions since she commenced working for Conlon in 2015.  She experienced no behavioural problems with him until about the time when the Horse suffered a hoof abscess.  She had said that she thought this was in about May 2016, but the veterinary records indicate that a veterinary surgeon was not called to examine the hoof until late September 2016.  It may be that the symptoms of hoof problems or “not feeling right in front” had preceded the visit by Dr Wood.  I think it unlikely that Conlon would have called the vet in on the very first suggestion of a hoof problem.  He did describe vets as “thieves”,  By this, I consider that he meant that vets were expensive.  In any event, I find that the Horse displayed a hoof injury at least by late September 2016.
(b)	I am satisfied that Turner did tell Conlon that she was having difficulties coping with the Horse and that the Horse was misbehaving, in the sense that he was throwing his head around, bucking and pigrooting, which made the Horse difficult for her to control.  As previously stated, the Horse was a particularly large one;
(c)	At some point after Turner initially complained to Conlon about the misbehaving of the Horse, Conlon employed an additional track rider, Gunning, and from that time, he rode the Horse on nearly all occasions.  On some occasions, Gunning did not attend the stables for one reason or another and Conlon required Turner to ride the Horse in trackwork.  I accept her evidence that she did so because she was concerned about losing her job if she refused to do so;
(d)	On occasions when Gunning did not attend at the stables, Conlon was in a difficult position, in that he only had Turner available to ride trackwork.  Either Turner agreed to ride the Horse, or the Horse did not get worked that morning.  It appears that Conlon, although at an earlier time being considered to be a highly competent rider, was no longer riding by 2016;
(e)	About a week or two prior to 25 November 2016, Turner fell from the Horse in an incident on the home track when the Horse shied and dropped its head, resulting in Turner being thrown over the Horse’s shoulder.  She landed without any injury of significance, caught the Horse, and walked the Horse back to the stable area.  I do not consider that evidence was inconsistent with the evidence given by Perez.
(f)	I accept that Turner told Conlon of that earlier incident when she fell from the Horse; 
(g)	I accept that on the morning of 25 November 2016, Gunning was again not available to ride trackwork.  Conlon gave no evidence as to why that occurred.  One would imagine that he would have asked Gunning in due course as to the reason for his non-attendance;  
(h)	I accept Turner’s evidence that she had again protested to Conlon about riding the Horse.  It is not in issue that Conlon required Turner to ride the Horse on that morning;
(i)	I find that, prior to 25 November 2016, Conlon was aware that the Horse had demonstrated behavioural problems and that the Horse had displayed habits of tossing its head about, bucking, and pigrooting when ridden by Turner.  I accept that Turner had been bucked from the Horse a week or two before and that she had told Conlon about this;
(j)	I accept that whilst cantering on the track on the morning of 25 November 2016, Turner suffered injuries when she fell from the Horse.
80	The precise manner in which Turner fell from the Horse is not, in my view, of crucial importance.  She did tell various doctors that she was seen by that she had an imprecise memory of precisely how she had fallen.  Nevertheless, her evidence was that she had a recollection of the Horse throwing its head forward, which I accept would have pulled her forward as well.  Her evidence is then that she was dazed and swaying in her position on the Horse.  She did not fall immediately but fell on the far side of the track.  I accept that she was unconscious for a relatively short period. 
81	I accept, on the balance of probabilities, that Turner’s injuries were suffered in the manner that she described in her evidence.  That is, that the Horse threw its head forward and pulled her forward at the same time.  The Horse is likely then to have thrown its head back, striking the plaintiff in her face.  I have no doubt that the impact was hard, and that the plaintiff is likely to have been severely dazed and perhaps lapsing in and out of consciousness for a short time before falling from the Horse.  These are not matters which I could say I was satisfied about beyond reasonable doubt or even that I was virtually certain about.   However, the standard of proof in a civil claim such as this does not require such certainty.  I am satisfied that this is how the Accident occurred, on the balance of probabilities.
82	I am satisfied that Conlon was negligent in requiring Turner to ride the Horse in track work when he knew of the difficulties previously experienced by her in riding him and, in particular, that she had been thrown from the Horse a week or two before the date of the Accident.  I am satisfied that Conlon knew or ought to have known that Turner was fearful about riding the Horse and that this may also have contributed to the misbehaviour of the Horse on the day of the Accident that resulted in Turner’s fall and injuries.
83	Notwithstanding my findings referred to above, I do not consider that it is necessary for Turner to establish the actual cause of the Horse’s misbehaviour.  I find that, for one reason or another, the Horse had misbehaved in the manner alleged by her in the weeks and months before the Accident and that Conlon was aware of that. I find that behavioural traits of the Horse as described to him by Turner should have made him aware that the Horse was an unsuitable horse for Turner to ride in track work. In those circumstances, I consider that, when Conlon required Turner to ride the Horse on the morning of the Accident, he exposed her to an unnecessary risk of significant injury and failed to provide her with a safe system of work.
Statutory Regulations
84	Regulation 3.1.1 requires an employer, so far as is reasonably practicable, to identify any task undertaken, or to be undertaken, by an employee involving hazardous manual handling.  Handling a horse is an activity coming within the definition of “hazardous manual handling”.
85	Regulation 3.1.2(1) provides that an employer must ensure that the risk of a musculo-skeletal disorder associated with a hazardous manual handling task is eliminated so far as is reasonably practicable. 
86	If it is not reasonable to eliminate that risk, Regulations 3.1.2(2) and (3) provide that the employer must reduce that risk so far as is practicable by altering (inter alia), the systems of work used in the task involving manual handling or, if that is not reasonably practicable, the employer may control that risk by use of information, instruction, or training.
87	That is, the employer must eliminate the risk if practicable – if not practicable, reduce the risk and, if elimination or reduction is not practicable, then (and only then) control the risk by use of information, instruction, or training.
88	I accept that riding a horse will nearly always involve some risk of a fall and resultant injury.  I suspect that there are few regular riders who have not, at some stage, fallen from a horse. 
89	But I consider that, in the case of a racehorse, steps can be taken by a trainer/employer to reduce or possibly eliminate such a risk by:
(a)	making a careful assessment of each horse in his or her stable regarding its temperament and behavioural traits; 
(b)	ensuring, as far as practicable, that each horse in the stable is ridden by a rider with appropriate experience and ability for the particular horse so as to minimise the risk of the rider falling from it and suffering injury; or
(c)	implementing one or more of the proposals put forward by Dr McLean and referred to above. 
90	I consider that making a careful assessment of the Horse would be an ongoing task.  Any horse might be well behaved and safe for an inexperienced rider up to a certain time – for example, an injury or some other event that scared it.
91	Such an assessment would include carefully listening to reports from a rider who had ridden the Horse in order to learn of any behavioural problems which the trainer may not have personally observed or understood.  I accept that Turner told Conlon of the behavioural problems she was experiencing with the Horse which I consider were sufficient to put Conlon on notice that the Horse was not suitable for Turner to ride. 
92	I consider that the obvious solution was to ensure that the Horse was only ridden by adequately experienced and skilful riders.  Another would have been to send the Horse away for appropriate retraining.
93	Conlon had, in fact, acted to employ Gunning, an experienced and confident rider, who appeared to have no difficulty with the Horse.  But, for reasons not explored in evidence, Gunning was not always available.  In those circumstances, Conlon required Turner to ride the Horse.  It was clearly foreseeable that she would experience further problems riding the Horse as had occurred in the recent past and that there was a risk of her falling from the Horse.  I am able to draw an inference that Gunning was employed by Conlon because he was aware of the problems that Turner was experiencing with the Horse.  No other reason was suggested by Conlon.
94	I find that Conlon breached each of Regulations 3.1.1, 3.1.2, and 3.1.3(c), (d) and (e), and that those breaches were a cause of Turner’s injuries.
Turner’s injuries
95	The extent of Turner’s injuries were not particularly  contentious matters in the trial.
96	A number of medical reports were tendered by Turner and Conlon.  The authors of them were not required for cross-examination.
97	In summary, Turner’s injuries and treatment were:
•	A fractured jaw and associated loss of five of her right upper teeth.  Four of those teeth were knocked out in the trauma of the Accident itself.  The root of one of those teeth was retained and surgically removed later.  A fifth tooth was fractured in the Accident and surgically removed later.  These injuries were captured in a series of photographs taken after the Accident.
•	A bridge was attached by three screws into her jaw.  The five new false teeth were affixed to the bridge.
•	In all, she underwent three surgical procedures at the Frankston Hospital between November 2016 and April 2017.
•	She suffered considerable pain in the region of the fractured jaw and lost teeth.  She required an occlusal splint at night to prevent damage due to grinding and clenching.  The evidence did not disclose if that splint is still used.  She has, since surgery, suffered from three chips to her replaced teeth which, on each occasion, required removal of the bridge and replacement teeth.
•	Dr Tran, her periodontist, opined that she may require replacement of the implant bridge component in the future with a screw fracture, porcelain chips or wear.  He thought she would need further treatment for bone loss and gingival recession involving debridement, implant replacement, and/or gingival tissue grant.
•	She experienced restriction of mouth opening and inability to chew, although it appears that she has largely recovered from these complaints.  Her food needed to be pureed.  She received assistance from physiotherapy treatment for her jaw.
•	The laceration of her lip was full thickness and severe.  Although healed and apparently stable, it has left a significant scar near the right corner of her upper lip.  She was and is an attractive young woman.  Her appearance is important to her.  She suffers embarrassment as a result of her scarring.  She uses makeup to minimise it.  When photographed, she uses filters to produce a better photographic result and is likely to continue with such treatment in the future.
•	She describes her lip as mostly numb.
•	In December 2020, Professor David Wiesenfeld, an oral and maxillofacial surgeon, recorded that she complained of chronic bad breath and a change of taste since the implants and crowns were inserted.  He considered that she had suffered a head injury, a shoulder injury, post-concussion syndrome, and a psychological injury.  He described her as suffering from a serious injury to her mid face which had not yet resolved.  He considered she would be likely to require ongoing prosthodontic care with likely replacement of her bridge at least every ten years.  He considered she had suffered damage to facial nerves.
•	She suffered soft tissue injury to her right shoulder – a subacromial bursitis.  Pain radiates from her shoulder into her right arm.  She complains of a general weakness in her right arm.  She sees a myotherapist and a chiropractor.  She had physiotherapy treatment up to 2018 when the workers’ compensation agent ceased to pay for such treatment.  She had ultrasound investigations which led to two cortisone injections in her shoulder.  She has some reduction in her range of shoulder movement.
•	In November 2020, her chiropractor, Mr Maginnis, considered, that she should not engage in an occupation involving labour intensive activities such as cleaning stables, riding trackwork, or heavy lifting of saddles and equipment.  He felt that she would need to change vocation and make a new start in a role which was supportive of her injuries.  
•	In May 2019, Dr Tagkalidis, a consultant psychiatrist (who examined her at the request of the WorkCover claims agent), considered that she suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood with features of traumatisation relevant to her accepted injury.  She has not consulted any treating psychiatrist or psychologist.
•	Notwithstanding the prognosis of Mr Maginnis, she has returned to riding track work and has progressed to riding fast work. I infer that the weakness in her right shoulder must be relatively minor for her to be able to ride in that manner.
Damages
98	I consider that Turner suffered serious injuries of long-term effect.  However, notwithstanding the views of Mr Maginnis, she has returned gradually to working in racing stables, at least for the time being, and is now involved in riding fast work in a relatively large and successful stable.  She has, in my view, made a relatively good recovery, although it is less than five years since the Accident, and she is likely to experience a range of ongoing problems in the future.  It is to be hoped that they will not interfere with her chosen vocation with which she appears to have some real enthusiasm.
99	I note that she makes no claim for loss of income.  However, if she was forced to change her vocation in future, it would almost certainly result in a considerable loss of enjoyment of life.  I accept that, since an early age, horses have been an important part of her life and that, if she was unable to continue with it, it would be a blow to her.
100	As previously mentioned, it is not unusual for persons who regularly ride horses to suffer falls. I consider that Turner, as a full-time trackwork rider, may well suffer further falls in the future. It is likely that any blow to the right side of her face or jaw may cause further injuries. In addition, I take account of the normal vicissitudes of life facing her.
101	In all of the circumstances, I have determined that I should award pain and suffering damages in the sum of $185,000.
102	I shall hear the parties in relation to costs,  and any other ancillary orders on a date to be arranged between my associate and counsel. 
Orders of the Court made 29 September 2021
(1)	There be Judgment for the plaintiff for general damages in the sum of $149,970 (being $185,000, reduced by $35,030 in impairment benefit compensation, in accordance with s343 of the Workplace Injury Rehabilitation and Compensation Act).
(2)	The defendant is to pay the plaintiff’s costs, including reserved costs, on a standard basis, to be taxed by the Costs Court in default of agreement.
(3)	Certify counsels’ fees as follows:
	(a)	Senior Counsel’s fee on brief at $7000 per day for nine days (being eight days of appearance at trial, and one day of preparation) and 2 hours of special conferences at $700 per hour;
	(b)	Junior Counsel’s fee on brief at $3500 per day for nine days (being eight days of appearance at trial, and one day of preparation) and 2 hours of special conferences at $350 per hour.
(4)	There be a stay of 42 days in relation to payment of the Judgment sum and costs calculated from the date Reasons for Judgment were delivered to the parties, being 15 September 2021.
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