Attwood Marshall Lawyers has an experienced Thoroughbred Racing Law department led by solicitors passionate about horses. Commercial Litigation Associate Georgia Taylor – an experienced dressage rider and horse owner – recently led a successful defence of a civil matter in the Magistrate’s Court of Queensland (Southport) and discusses the case here.
Our clients were the First and Second Defendant. The First Defendant was the owner of the horse and the Second Defendant was the agent engaged to ride the horse and sell it on the First Defendant’s behalf.
The Second Defendant advertised the horse for sale and engaged with the Plaintiff, the Plaintiff was the first one to see the horse.
The Second Defendant on the vet check disclosed that the horse had no prior accidents or injuries in the seller disclosure. The vet had described ailments on the horse that was typical of a horse of 15 years of age. The buyer had declined to perform x-ray scans on the horse.
The Plaintiff did not read the vet check before purchasing the horse and relied on the veterinarian’s oral representations by telephone on the day of the examination. The written vet check was only delivered after the sale/purchase had been affected and the Plaintiff had taken possession of the horse.
The Plaintiff alleged in the proceedings that the horse was intermittently lame before the paddock accident, however, the horse was being heavily trained, and no veterinarian was ever called to assess the lameness. During the period from the purchase of the horse to the paddock accident, the defendants had only ever received one message from the Plaintiff stating that the horse was going very well. The assertion that the horse was lame was, therefore, was refuted by the Plaintiff’s evidence.
The Plaintiff also said that the Second Defendant mislead her into buying the horse as the Second Defendant said that the horse was “quiet” and “suitable for a beginner rider”. It was alleged that the horse was not as described by the Second Defendant.
Tragic paddock accident
The horse had a tragic paddock accident 6 months after purchase which rendered it unrideable. The horse had torn tendons off its left foreleg and was permanently lame even after rehabilitation. The scans at the point of injury showed that the horse also had advanced ringbone in its left fore but less extensive in its right fore. Ringbone is a degenerative bone disease which is found in the pastern or coffin joint of a horse. The Plaintiff then did some ‘investigating’ into the horse’s background and found that 6 years prior the horse had a puncture wound to its right fore which caused cellulitis, a soft tissue infection near its fetlock whilst it was out on lease. The First Defendant knew of this injury but the Second Defendant was unaware. The lessee of the horse at the time said in evidence that the horse was lame for a few days but was treated instantly and recovered after a week. The puncture wound and the cellulitis had not ever caused the horse problems. Cellulitis is a common infection for horses and is superficial when treated correctly.
The Plaintiff’s basis of the case was, that should she had known of the puncture wound 6 years prior she would not have purchased the horse. Further, that the cellulitis would have caused and/or been connected to the growth of the ringbone along with the allegation that the First Defendant ought to have known of the ringbone as at the time of sale because the horses right fore was x-rayed at the time of being infected with cellulitis.
The Plaintiff, therefore, sued our clients for the costs of the horse, agistment of the horse, farrier bills and vet treatment to the time the pleadings were served, where she claimed our clients fraudulently misrepresented her into purchasing the horse.
Our client’s defence
Our client’s defence was:
– The alleged injury was insignificant;
– The Second Defendant did not know of the injury;
– The First Defendant did not disclose it as it was not an injury it was only cosmetic by that stage and at the time, was superficial at worst;
– The degenerative bone disease was not known by either party;
– The Plaintiff refused scans at the vet check (buyer beware);
– The disease or the injury had caused no loss to the plaintiff it was the paddock accident that had caused the loss;
– The bone degeneration was not caused by the alleged injury as pleaded;
– The Plaintiff was aware of other ailments to the horse that were common of the age (15) which were found in the vet check and that it could not be said that she would not have purchased the horse because of the cellulitis;
– The Plaintiff provided no proof that the horse was not as described by the Second Defendant.
The Plaintiff during the trial specifically objected to evidence by a veterinarian called by Attwood Marshall Lawyers to be questioned as to a causal link the pre-existing condition to the injury.
Judgment was awarded in favour of the defendants (our client) on the basis of the following:
- It was proved that the Defendants collectively did not know about the degeneration as the horse was rideable and that the plaintiff would have known if the vet check scans were undertaken.
- The Defendants did not fraudulently mislead the Plaintiff into purchasing the horse, all evidence adduced by the Plaintiff at trial was inconsistent with the Plaintiffs documented evidence after the sale of the horse;
- It was not accepted that should the Plaintiff had known about the cellulitis, she would not have purchased the horse.
The Plaintiffs claim was dismissed on the basis that the cause of action was not made out.
How Attwood Marshall Lawyers can help
Established in 1946, Attwood Marshall Lawyers is a full suite legal service firm with the renowned intent to help people. Our Thoroughbred Racing Department is made up of lawyers who live and breathe the horse racing industry. The firm has been a strong supporter of the horse racing industry for two decades and is highly experienced in all facets of equine legal matters. We act for horse owners, breeders and syndicates in business disputes. We also represent trainers and jockeys in tribunal appeals. To achieve the best results for our clients, our Thoroughbred Racing Department partners with the Commercial Litigation Department, offering clients a unique cross-section of equine and business law expertise. Our solicitors and special counsel appear in courts in all state jurisdictions and also matters before the Federal Court. Attwood Marshall Lawyers excel in complex contractual disputes, business partnership structuring and class action claims. For your convenience, our offices are located at Melbourne, Sydney, Brisbane, Coolangatta, Robina and Kingscliff.