Riding group negligent after disabled child injured

By Kate Tilley

The NSW Riding for the Disabled Association has been found liable for negligence after a 10-year-old girl fell from a horse and fractured her neck.

NSW Supreme Court Justice Desmond Fagan found the NSW Education Department, which operated the Hunter River Community School at Maitland that the disabled girl attended, owed no duty of care for the riding activity because responsibility became that of the association once the children arrived at its Irrawang Equestrian Complex.

The injured girl, Breanne Cook, suffers from cerebral palsy, severe global developmental delay and autism. Justice Fagan heard evidence she was non-verbal and her “intellectual function, being no more than that of a 12 month old” meant she could not express herself or follow instructions.

The fall occurred on 12 September 2019 when Ms Cook was part way through a one-hour ride, conducted by an employed coach and unpaid volunteers.

Association training officer Nicole King gave evidence that the benefits of riding for the disabled were improving confidence, increasing core strength, and developing fine and gross motor skills.

Ninth riding session

Ms Cook had been on eight previous rides. Her mother, Kristy Stewart, had completed the application documents, supplied through an arrangement with her daughter’s school, and the association then determined the children’s suitability from the applications received.

Ms Cook was accepted and began weekly horse-riding sessions on 6 June 2019. Two teachers accompanied the children on the school bus to the equestrian complex.

During the 12 September ride, volunteer Anne Hutchings led Ms Cook’s horse and another volunteer, Paul Radley, walked beside her.

An employed coach, Rebecca Sharp, was at the rear of the group to oversee the ride.

Ms Hutchings said Ms Cook became “fidgety” and tried to remove her helmet and pull her feet out of the stirrups while the group walked across a paddock.

Ms Sharp saw that Ms Cook was unsettled and told the three leaders to halt. Mr Radley calmed Ms Cook and encouraged her to replace the helmet and not move it.

Side walkers reduced

Ms Sharp waited until Ms Cook was “calm and relaxed” before the horses continued walking and initially she said she assigned a second side walker.

“After a period of time, I observed Breanne had calmed down such that she was riding in the way she normally rode. I therefore reduced the number of side walkers back to one,” she said.

The fall occurred when the group reached an area called the sensory garden. Ms Sharp said she “noticed Breanne’s left foot had come out of her stirrup. I started to make my way to her, calling out to her side walker as I went, to let him know as it was on the opposite side to which he was walking”.

The horse began a slow walk towards the exit gate when Ms Cook “slid slowly and gently off the left side, landing on her left knee and left thigh. There were no unsettled or jerky movements from either Breanne or her horse while this was happening”.

Ms Sharp said Ms Cook’s foot coming out of the stirrup was not due to her “misbehaving or being upset”. 

Capable horsewoman

Justice Fagan said Ms Sharp, in determining safety requirements for Ms Cook, took into account that she was non-verbal and could not readily communicate what she was feeling, such as her level of comfort, confidence or concentration. 

He said Ms Sharp was “a capable horsewoman who has been willing to devote her skill to bringing the pleasure of an activity that she loves within reach of disabled children, who could never experience it without the help of someone such as herself. The kindness and generosity of the volunteers … is self-evident.”

However, he said Riding for the Disabled’s care on 12 September 2019 to avoid the risk of injury to Ms Cook was “less than reasonable”.

“Despite the best intentions, goodwill and thoroughness of Ms Sharp, I regret that I am driven to the conclusion that reasonable care required the provision of two side walkers at all times,” Justice Fagan said. Ms Cook’s injury resulted from a failure to take that reasonable precaution.

There was no immunity under the “community work” provisions of the NSW Civil Liability Act 2002 because Ms Sharp was an employed coach, not a volunteer.

He found Ms Cook’s action in leaving her helmet alone after the first incident during the walk was “highly exceptional”. The evidence showed Ms Cook could not be relied on to keep both feet in the stirrups or replace her foot in a stirrup if it slipped out.

Intellectual function

Ms Cook “needed her feet in the stirrups for stability and balance. Her intellectual function was such that loss of stirrup security could not be corrected by calling out an instruction from metres away.

“It was necessary that a volunteer be near [Ms Cook] to replace a slipped foot. [She] was vulnerable to a fall whenever a foot was not correctly placed.”

Justice Fagan said the risk of serious injury was foreseeable and significant because Ms Cook “needed to keep her feet in the stirrups to maintain balance but was unable to fulfil that requirement reliably [because] of her low intellectual function, her distractibility and impulsivity, her tendency to become agitated and her inability to implement oral instructions”.

He found a reasonable person would have assigned two side walkers and directed them to stay close to Ms Cook whenever she was on horseback. The probability of a fall was high and the burden of that precaution was low.

Absolving the Education Department of responsibility, Justice Fagan said the horse riding was entirely independent of the school. “The teachers were on hand to resume care of the children when their riding session ended and, I infer, to assist in managing and communicating with the children if required by the coach.”

Cook v Riding for the Disabled Association (NSW) & Anor [2024] NSWSC 1332 (22 Oct 2024)