Teen's damages claim over 'Riding for the Disabled' fall in school time

The 14-year-old was born with a microdeletion syndrome causing severe intellectual disability and global developmental delay.

Her ability to communicate is limited to sounds and gestures.

She was 11 years old when she was invited via her school, the Hunter River Community School in Metford, to attend a horse riding for the disabled program run by Riding for the Disabled Association (NSW) Raymond Terrace and Lower Hunter Centre in May, 2019.

Her mother paid a fee for her to participate and the program was conducted on a school day, with the school bus transporting the young girl to the Raymond Terrace riding facility.

The school also provided staff to accompany the children and supervise them while they participated. The girl had participated a number of times before her fall.

On the day in question, September 12, 2019, she was placed on the saddle of a horse and led around but with only one support person walking on one side of her.

That was different to earlier occasions which involved a support person on each side of the horse.

She was unable to hold on securely, and had been allowed to carry a toy and a drink bottle.

She lost balance and fell, sustaining a serious injury to her right leg and hip.

Before the fall she was able to walk independently but has been unable to mobilise since and is often in pain and distress.

In the case now before the Supreme court, there is debate between medical practitioners about how to best treat the injury.

The initial surgery involved internal fixation, but the girl is now experiencing complications with the screws, such as including avascular necrosis and collapse of the right femoral head.

The treating orthopaedic surgeon has told the girl's mother that the decision regarding surgery needs to be postponed until she is fully grown, at which time a hip replacement was a viable option.

There were other surgical options but which could result in her becoming permanently wheelchair-bound.

"So the correct surgical decision is obviously very important and must not be rushed," Justice Julie Lonergan said in an earlier decision handed down at the end of last year.

The girl's family has made an application to the issues of liability and damages dealt with separately.

Both the NSW Education Department and the riding school have denied liability and the department opposed the application to have the two issues heard separately.

The separate determination of issues was an exceptional measure, Justice Lonergan said, given the potential for the escalation in costs related to overlapping evidence and other issues.

However, the teenager's medical condition was not stable, her lawyer said, and it was unlikely the damages claim would be ready for trial for four to five years.

Justice Lonergan approved the application, saying the cost of preparing a damages case where there may not be liability for someone else to pay them was an important consideration for her family.

"The practical reality of knowing whether there is a basis for an application for an advance on damages to assist in paying for necessary treatment in circumstances where both defendants have denied liability, is also a matter of practical relevance," she said.

The matter should proceed as soon as practicable she said. She also ordered the Education Department to pay the girl's legal costs in relation to the separation application, saying the department could have consented rather than forcing a contested hearing.

The matter comes back to court on May 17.