Bourke v Victorian Workcover Authority

Case [1998] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 7964 of 1996 No. 4017 of 1997 No. 8386 of 1997

DAVID BOURKE

Appellant

v

PETER RAYMOND HASSETT & ORS.

Respondents

DAVID BOURKE

Appellant

v

VICTORIAN WORKCOVER AUTHORITY

& FAI WORKERS COMPENSATION (VIC) PTY.LTD.

Respondents

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JUDGES: WINNEKE, P., BROOKING and BUCHANAN, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 11, 12, 13 August 1998
DATE OF JUDGMENT: 14 August 1998
MEDIA NEUTRAL CITATION: [1998] VSCA 24

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Negligence - Injury caused to rider when horse stumbled at race-track - Defect in track known to occupier of track and rider’s employer - Rider suing occupant and employer - Consideration of employer’s liability in circumstances where he had no control of defect.

Accident compensation - Whether stable hand/rider the “deemed employee” of VRC whilst riding horse for track-work - Meaning of s.16 (4)(b) of Accident Compensation Act 1985 considered.

Accident compensation - Recovery by insurer of compensation paid from negligent third party - Whether third party responsible for “injury” for which compensation was paid - s.138 Accident Compensation Act.

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APPEARANCES: Counsel Solicitors
For the Appellants  Mr. R.K.J. Meldrum QC Richmond & Bennison
and Mr. S.B. Spittle
For the Respondents  Mr. D.A. Kendall QC Abbott Stillman & Wilson
(other than Hassett)  and Mr. R.C. Webster
For the Respondent  Mr. A. Hounslow
Hounslow  & Hassett
Associates

WINNEKE, P.:

  1. These are two related appeals, brought in each instance by the appellant David Bourke, against judgments and orders given and made in the County Court by the same judge respectively on 16 October 1996 and 18 December 1996. The first judgment was given in proceedings commenced by writ numbered 99200481 (the "principal proceedings"), in which the respondent Hassett ("Hassett") sued his employer Gayval Investments Pty Ltd ("Gayval") and David Bourke, who was sued as nominal defendant for and on behalf of the Victoria Racing Club ("VRC"), seeking damages for injuries arising from an incident which occurred in February 1986 when Hassett was "riding trackwork" for Gayval at the Flemington racetrack. In this action the defendant Bourke joined Victorian Workcover Authority and FAI Workers Compensation (Vic) Pty Ltd (the "insurers") as third parties in circumstances which I shall hereafter describe. The second judgment was given in proceedings numbered 9600481 (the "second proceedings") in which the insurers sued VRC claiming to be entitled to an indemnity pursuant to s.138 of the Accident Compensation Act 1985 ("the Act") in respect of compensation paid by them to Hassett arising from the negligence of a third party, namely the VRC. The principal proceedings, in which Hassett was the plaintiff, were heard first, commencing on 9 October 1996. The trial lasted for five days and resulted in judgment being entered for Hassett against the VRC in the sum of $165,000. In those proceedings judgment was entered for Gayval, the learned judge having found that the plaintiff had not established liability on its part. Entry of judgment was deferred pending determination of the issues on the third party notice and the…

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Bourke v Victorian Workcover Authority [1998] VSCA 24
Case
[1998] VSCA 24
Decision Date

CaseChat Overview and Summary

The case of Bourke v Victorian Workcover Authority concerns a claim by Hassett, a jockey employed by Gayval, against the Victorian Racing Club (VRC) and Gayval for injuries sustained when his horse stumbled at a racecourse. The dispute hinges on whether the VRC, as the occupier of the racecourse, was negligent in maintaining a dangerous tan-bark crossing on the track, and whether Gayval, as Hassett's employer, was vicariously liable for the injury. Additionally, the case addresses whether Hassett, while performing track work, qualified as a "deemed employee" under the Accident Compensation Act 1985, and if the insurer is entitled to recover compensation paid from a negligent third party.

The central legal issues in this case are the liability of the VRC for maintaining a dangerous part of the racecourse, the employer's liability in the context of the employer's control over the defect, and the interpretation of the term "deemed employee" under the Accident Compensation Act 1985. Furthermore, the case examines whether the insurer can recover compensation paid from a negligent third party under section 138 of the Act.

The court found that the VRC, as the occupier of the racecourse, was indeed negligent in maintaining the dangerous tan-bark crossing. The court held that the VRC was aware of the defect and its potential to cause harm, yet failed to address it, making them liable for the injuries sustained by Hassett. Regarding the employer's liability, the court held that Gayval was not vicariously liable as they had no control over the defect. The court also found that Hassett qualified as a "deemed employee" under the Accident Compensation Act 1985 while performing track work. Finally, the court determined that the insurer could recover compensation paid from the negligent third party, the VRC, as they were responsible for the injury for which compensation was paid.

The final orders of the court included holding the VRC liable for Hassett's injuries, dismissing Gayval's claim for indemnity, and allowing the insurer to recover the compensation paid from the VRC. The court also affirmed that Hassett was a "deemed employee" and thus entitled to compensation under the Accident Compensation Act 1985.

Orders

Orders of the court

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Background

Background to the litigation

The appellant VRC has, as I have stated, appealed against the judgments and orders made by the learned judge in each proceeding. The Facts Early in the morning of 13 February 1986, Hassett commenced his work in the stables of Gayval at the Flemington Race Course, which at all material times was in the occupation and under the control of the VRC. Gayval was, at the time, a corporate entity through which T.J. Smith, the well-known trainer, conducted his business. On the evidence which the learned judge accepted, Hassett was under the immediate control of Gayval's stable foreman, one Christie. Hassett was directed by Christie to ride and perform "fast track-work" on a horse called "Jewel in the Crown". This work was to be undertaken on what was known as the "steeple grass track" at the racecourse. Hassett's case, which the judge substantially accepted, was that, at the 800 metre mark on this track, there was a tan-bark crossing which had been constructed by the VRC predominantly to provide access to horses to the various tracks at the racecourse and to the centre area of the course. Hassett alleged that this crossing was a known danger to horses and riders because it was located at a point in the track where horses were at full gallop and tended, because of its colour and construction, to cause horses, in an unpredictable fashion, to "shy" and "knuckle", which, as I understand them, are terms used in the racing industry to describe a situation where the horse suddenly decelerates, changes its gait, and slips, causing its foreleg to "knuckle under", thereby creating problems for the rider. On this occasion Hassett was flung onto the horse's neck, his feet came out of the stirrups and were flung upwards and over his head as he hung onto the neck of the horse. This movement created an over-extension of his back and spine, which was, he said, the cause of the painful and permanent back injury of which he complained. His Honour’s findings in the principal proceedings At the trial it was contended by Gayval that no such incident as Hassett described had occurred. Smith and Christie relied on the practice which was in vogue at the stables at the time which, they said, would have precluded Hassett from being directed to ride a horse such as "Jewel in the Crown". Both Gayval and the VRC relied upon material designed to show that Hassett had made many conflicting statements to doctors and other persons as to the origin of his injuries. The learned judge, who heard the evidence and observed the competing witnesses, accepted Hassett as a witness of truth and was unimpressed by both Smith and Christie. He accordingly concluded that the incident, as described by Hassett, did occur. He further concluded that the tan-bark crossing, in the location and construction in which it was, was unsafe and that it "was a problem which has been recognised and acknowledged by the VRC". The lack of safety, which his Honour found, was principally due to its unstable surface which was "very different to the turf surface of the track" and was "particularly prone to cause the phenomenon of knuckling". As his Honour noted, neither defendant disputed the evidence given in this regard by and on behalf of Hassett. He found it to constitute a significant and foreseeable risk, indeed one which was "appreciated by the officers of the [VRC]". It was also clear from his Honour's findings that it was a risk which ought to have been known to Gayval because Smith was familiar with the track, the plaintiff had complained about the danger and, having regard to the fact that neither defendant was prepared to dispute the evidence accepted by his Honour, he found that "it has long been recognised that a tan-bark surface constitutes a problem".

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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