Bourke v Victorian Workcover Authority

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

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

DAVID BOURKE

Appellant

PETER RAYMOND HASSETT & ORS.

Respondents

DAVID BOURKE

Appellant

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.:

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 issues raised in the second proceedings; that is the claim by the insurers for indemnity against the VRC. However, on 8 November 1996, his Honour entered judgment in favour of Hassett for the sum of $165,000 together with interest of $8,000; but on 22 November 1996 that judgment was, by consent of the parties, set aside and, in lieu, judgment was entered for Hassett against the VRC in the sum of $134,180 being the judgment sum less the amount awarded and paid to Hassett pursuant to s.98 of the Act, namely $30,820. When interest was added the total sum entered by judgment in favour of Hassett was $142,180.
In the meantime, and immediately following the publication of his Honour's reasons in the claim by Hassett, his Honour entertained argument in respect of the issues raised in the second proceedings together with the third party proceedings which had been commenced by the VRC against the insurers in the principal proceedings. That hearing took place between 16 October and 19 October 1996. In his second judgment, reasons for which were delivered on 18 December 1996, his Honour dismissed the claim by VRC against the third party insurers. Almost a year later, namely on 9 December 1997, his Honour entered judgment for the plaintiff insurers in the second proceedings (i.e. the claim for indemnity) in the sum of $351,299.00 together with interest fixed at $11,525.00. On that day his Honour ordered the VRC to pay the costs of all proceedings.
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".
His Honour found that the VRC was in breach of its duty as occupier of the racetrack to Hassett as one of a class of persons whom it permitted to use the track. He found, in essence, that the crossing constituted a not insignificant risk of which the VRC was aware and that, although it had contemplated various substitutes over a period of time, it had breached the duty owed to Hassett by failing to re-locate or re-surface the crossing. The system which the VRC maintained was, his Honour found, the direct cause of the injury to Hassett.
His Honour, however, found no liability on the part of Gayval for reasons to which I shall later refer.
His Honour then assessed the damages which were limited by the Act at the relevant time to "general damages". Having reviewed the evidence, he fixed the figure of $165,000 which was higher than the figures submitted, not only on behalf of the defendants, but also on behalf of the plaintiff, Hassett.
The issues and findings in the Indemnity and Third Party Claims
By its third party proceedings in the principal proceedings the VRC alleged that Hassett, by virtue of the provisions of the Act, was its "deemed employee" and that, accordingly, the insurers, as the relevant workers compensation insurers, had an obligation to indemnify the VRC against any liability which might be found to exist in it to pay damages to Hassett. This claim was founded upon the provisions of s.16(4)(b) of the Act. That section, relevantly, provides as follows:
"Sporting Contestants
(1) Except as provided in sub-section (4), where a person is engaged by an employer to participate as a contestant in a sporting or athletic activity, neither ... the [VWA] or authorized insurer is liable to pay compensation for an injury received by the person if -
(a) the injury is received while the person is -

(i) participating as a contestant in a sporting or athletic activity;
(ii) engaged in training or preparation with a view to so participating; or
(iii) travelling between a place of residence and the place at which the person is so participating or so engaged; and
(b) the person is not entitled to any remuneration other than for the things specified in paragraph (a) under the contract under which the person does any of those things ...

(2) ...
(3) For the purposes of sub-section (1) "person" does not include a
person -
(a) who holds a licence, permit or approval to ride granted in accordance with the Rules of Racing of the [VRC]; or
(b) engaged to participate as a rider, not being a person referred to in paragraph (a) ... at a race meeting within the meaning of the Racing Act 1958 on a racecourse licensed under that Act ... .

(4) A person -

(a)

engaged to participate as a rider in a horse-race at a race meeting held under the Rules of Racing of [the VRC]; or

(b)

who, not being an apprentice or the owner or trainer of the horse to be ridden, holds a licence, permit or approval to ride, granted in accordance with the Rules of Racing of [the VRC] and who agrees to do ride work on a horse at any racecourse or training track ... -
shall be deemed for the purpose only of this Act while participating as such a rider or doing such riding work to be a worker solely employed by [the VRC] and the amounts paid to the person in respect of so participating or doing shall be deemed to be remuneration."

In the third party proceedings the VRC alleged, and the insurers disputed, that pursuant to this section, and particularly sub-section (4)(b), Hassett was at the relevant time the "deemed employee" of the VRC and, thus, the insurers were obliged to indemnify it against damages payable to Hassett. In the related indemnity proceedings brought by the insurers pursuant to s.138 of the Act, the insurers contended that, at all material times, Hassett was the employee of Gayval and that the VRC was a negligent third party which was obliged to indemnify them against payments of compensation which they had made to Hassett pursuant to the Act. For the purposes of these proceedings the learned judge was invited by the parties to adopt such findings of fact as he made in the principal proceedings.
There were three principal issues which his Honour was asked to determine in the second proceedings:

1. Whether the VRC was a "deemed employer" of Hassett by reason of s.16(4)(b) of the Act.
2. Whether the insurers were estopped from contending or had waived their right to contend that the VRC was not the "deemed employer" by assuming control of the principal proceedings on behalf of the VRC, as well as Gayval.
3. Whether, pursuant to s.138, the "injury in respect of which compensation was paid" was the track injury claimed by Hassett to have been suffered on 13 February 1986 or a series of injuries suffered by Hassett over a period of time dating from the track incident.

The learned judge decided all these issues against the interests of the VRC. He concluded that the VRC was not the "deemed employer" of Hassett within the meaning of s.16(4)(b) of the Act principally because Hassett was not a person who "[held] a licence, permit or approval to ride granted in accordance with the Rules of Racing of [the VRC]". Although Hassett's employer, Gayval, was required to and did register with the VRC all its stable-hands who were working "in connection with the training or care of racehorses" this was not the "licence, permit or approval to ride" contemplated by the sub-section. It was his Honour's view that it was not the intention of the legislature to create a fictional relationship of employment between the VRC and a person who was already employed by another person but rather intended to create such a relationship between jockeys and other riders of horses in trackwork who would presumably be independent contractors not in steady employment with another person.
His Honour also rejected the VRC claim that the insurers were estopped from denying that Hassett was a "deemed employee" by reason of the fact that they had assumed the defence of the claim by Hassett on behalf of the VRC. Because no appeal has been brought against this finding, it is unnecessary to say anything further about it.
In respect of the issue raised in the s.138 proceedings that compensation had been paid not only in respect of the "track riding injury" but in respect of a series of injuries, of which the former was but one, his Honour found that, relevantly, Hassett had received only one injury for which compensation became payable and that was the injury suffered whilst riding "Jewel in the Crown" on 13 February 1986.
The Issues on Appeal
At the outset of the hearing of the appeal Mr Meldrum, Q.C., who appeared with Mr Spittle for the appellant VRC, informed the Court that the issues which the VRC wanted to pursue in the appeal from the principal proceedings had narrowed from those foreshadowed in the grounds set out in the notice. It was no longer proposed to challenge the trial judge's finding of negligence against the VRC; nor his conclusion that Hassett was not contributorily negligent; nor the quantum of damages awarded to Hassett. This abandonment of what were grounds 1, 2 and 3 in the Notice of Appeal disposed of all issues in which Hassett, the first respondent, had an interest. Accordingly the parties consented to an order being made by this Court that the judgment sum awarded to Hassett, which had, by order of the trial judge, been paid into Court to abide the outcome of the appeal, be paid out with any interest accrued forthwith to Hassett. Mr Meldrum also advised the Court that his client had agreed to pay Hassett's costs of the appeal and, accordingly, an order to that effect will be incorporated in the orders to be made by this Court in the disposition of the appeal. Mr Hounslow, who announced his appearance on behalf of Hassett, was accordingly released from further appearance on the appeal.
Effectively the only issue argued in the appeal brought from the principal proceedings related to the trial judge's finding that there was no actionable negligence on the part of Gayval.
In respect of the third party and indemnity proceedings, two issues have been argued on appeal: firstly, that the judge was wrong in his conclusion on the evidence that the appellant VRC was not the "deemed employer" pursuant to s.16(4)(b) of the Act; and, secondly, that the judge was wrong in concluding that all compensation paid by the insurers was paid in respect of the injury suffered by Hassett in the track-riding incident which occurred on 13 February 1986, and was therefore recoverable under s.138. It is that particular issue to which I now turn.
The Issue of Indemnity pursuant to s.138
Mr Meldrum submitted that the judge was in error in finding that the insurers were entitled to recover an indemnity pursuant to s.138 of the Act either at all, or in the amount awarded, because it was not open to him to find on the evidence that the compensation paid by the insurers to Hassett was in respect of the injury suffered on 13 February 1986.
Section 138 of the Act, in so far as relevant, provides that: "Where an injury ... for which compensation has been paid by [VWA]
... was caused under circumstances creating a legal liability in a third party to pay damages in respect of the injury ..., [VWA] is entitled to be indemnified by the third party for such proportion of the amount of compensation paid as is appropriate to the degree to which the injury ... was attributable to the act, default or negligence of the third party ... ."
Having rejected the VRC's contention that Hassett was its "deemed employee", his Honour found that the VRC was a negligent third party in respect of the injury caused to Hassett on 13 February 1986 and accordingly found that the insurers were entitled to be indemnified by the VRC for such amounts of compensation which it had paid to Hassett. It was submitted on behalf of the VRC that, in so finding, his Honour was in error because the injury suffered by Hassett was not "the injury" referred to in s.138, for which compensation had been paid. The thrust of the submission, which was also made to the judge below, was that following the track-riding injury suffered on 13 February, Hassett had returned to work over a period, variously estimated at between 10 and 20 days, during which the evidence disclosed he had received what were called "further insults" to his back and that it was the combination of injuries suffered as a result of his employment that led to his incapacity for work. Because compensation pursuant to the Act is only paid, so the argument ran, for incapacity, his Honour was in error in finding that the compensation paid by the insurers in this case was paid in respect of the injury suffered in the track-riding incident. It was the submission of the VRC that his Honour was confronted in this case with what was called a "Section 82(6) injury" - that is an injury "which occurs by way of a gradual process over time and which is due to the nature of employment". This submission was largely based on a claim form which had been signed by Hassett on 19 March 1986 in which he had described his injury as occurring through "riding track work and stable duties" and also upon various answers given by Hassett during the course of cross-examination in which he conceded that his back had become worse as the result of work which he had performed in the employer's stables over the period of some 10 days following the riding injuries which he had suffered on 13 February. It was accepted at the trial that Hassett had a pre-existing spondylolisthesis at the L3/4 level in the lumbar spine but that, before the track-riding incident, such condition had been asymptomatic.

For my own part, I am quite unable to accept the appellant's submission. Its primary difficulty is that it runs counter to the findings made by the trial judge in dismissing the same submission made to him. He said:
"It follows ... that in the related s.138 proceedings the only issue is whether the compensation benefits were paid in respect of a disability caused by the incident of the 13th February 1986, or as a result of the cumulative effect of that event and others in which the plaintiff was involved during the period of 10 days in which he remained at work.
During that period the plaintiff worked in his ordinary duties as a stable hand. Undoubtedly some of those duties were arduous. It is clear that while he was working he became aware that his original injury was troubling him to an extent greater than he had expected. In broad terms the subsequent history is of real deterioration demonstrated by the fact that the plaintiff has not since returned to work and it is unlikely that he will ever do so.
As Mr Spittle put it, the argument is based on the enshrined principle that compensation is paid in respect of incapacity resulting from an injury, not in respect of the injury itself. It seems to me that this issue really comes down to a simple question of fact. That question is whether the plaintiff's incapacity is a consequence of just the episode that occurred on 13 February 1986 or a combination of that episode and others in which Mr Hassett was involved during the following 10 days. Essential to Mr Spittle's argument is that the plaintiff's incapacity was a result of the cumulative effect of the events between the 13th February 1986 and the cessation of his employment."
His Honour then considered the overall effect of the evidence and explained the context of certain remarks which he had made in his reasons for judgment in the principal proceedings. He then concluded:
"The better way of looking at what occurred is that the plaintiff sustained that injury on 13 February 1986. As a result of that original injury, the heavy work with which he had previously coped caused him to become more conscious of the symptoms caused by his original injury ... . I do not think in the light of this it can be said that the plaintiff's injury was exacerbated by reason of his continued employment. The continued employment did no more than make him conscious of the more serious nature of that which had already occurred."
His Honour was quite correct in saying that the issue raised and to be determined was one of fact. Whether incapacity results from a particular incident is a question of fact for the court before which the issue is litigated (Kooragang Cement Pty. Ltd. v. Bates (1994) 35 N.S.W.L.R. 452 at 463 per Kirby, P.); as is the question whether the chain of causation between the injury relied upon and incapacity has been broken by some further incident (Bushby & Anor. v. Morris & Ors. (1980) 28 A.L.R. 611 at 613, per Lord Keith of Kinkel (P.C.)).
I did not understand Mr Meldrum to contend otherwise than that this was a question of fact to be determined by the judge. He sought to challenge his Honour's conclusion on the basis that the evidence did not support it. This challenge was primarily based on the evidence to which I have referred. But, in my view, the challenge cannot be made good. There was much material before his Honour to support the conclusion to which he came. That evidence included a series of medical reports which, by consent, had been put before the judge in which the opinions were, as it seems to me, consistent in their view that Hassett's incapacity had been caused by the incident of 13 February. True it is, as Mr Meldrum submitted, that these opinions had been founded upon the history related by Hassett. But the fact is that his client did not seek to challenge them. Quite apart from those opinions his Honour was entitled to form the view which he did from the accepted evidence that Hassett, who had previously been a fit man and untroubled by his underlying spinal condition, had experienced, in the riding incident, a severe hyper-extension of his back of a type which, as the medical evidence demonstrated, was likely to have unleashed the symptoms from which he had continued to suffer.
For these reasons I would reject this ground of appeal. In so doing I should not be taken as accepting its underlying premise; namely that the injury for which compensation was paid was one which had occurred "by a gradual process over time" as referred to in s.82(6) of the Act.
Whether Hassett was a “deemed employee” of the VRC
It was next submitted on behalf of the VRC that his Honour had erred in dismissing the "Third party" proceedings brought by the VRC against the insurers in the principal action. This submission was founded upon the contention that Hassett was, at the time when he suffered the injury on 13 February 1986 whilst riding track-work, the "deemed employee" of the VRC by virtue of s.16(4)(b) of the Act. This submission depends for its validity upon the contention that Hassett, whilst he was engaged in riding track-work on "Jewel in the Crown", was doing so as a person who was "the holder of ... an approval to ride granted in accordance with the Rules of Racing of [the VRC] and who agrees to do ride work on a horse at any racecourse ..." within the meaning of s.16(4)(b).
Mr Meldrum's submission was that Hassett, on the relevant day, was the holder of such an approval to ride by virtue of the fact that his employer, Gayval, was required pursuant to Rule 74(1) of the Rules of Racing, published by the VRC, to register with the VRC all persons employed by the trainer "in connection with the training and care of racehorses". It was not in contest that, in accordance with this Rule, Gayval (or T.J. Smith) had registered Hassett as one of his employees. It was submitted that the registration of Hassett in accordance with the obligation imposed by this Rule upon the trainer rendered Hassett the "holder of an approval to ride" within the meaning of s.16(4)(b) of the Act. It was put that such approval should be implied from the registration because it was part of Hassett's duties of employment that he would ride track-work as and when required by the trainer, notwithstanding that his duties of employment were of an embracing kind and required him to work for a regular and stipulated wage. It was thus the contention that, although Hassett was at all material times the employee of Gayval, s.16(4)(b) created the statutory fiction that, whilst he was riding track-work, he was the "deemed employee" of the VRC, but solely for the purposes of the Act.
In my opinion, if this was the effect of Gayval's registration of Hassett pursuant to its obligation under Rule 74(1) it would be surprising. However, in my view, the submission cannot be made good principally for the reasons given by the trial judge.
The section, to the terms of which I have referred earlier in these reasons, excludes, by s.s.(1), from compensation benefits persons who sustain injury whilst participating as a contestant in a sporting activity or a person who sustains injury whilst in preparation for such an activity where the person is "not entitled to any remuneration other than for the things specified" which the person does under the contract under which the person does those things.
To that general exclusion an exception is grafted by sub.ss.(3) and (4) in favour of persons who (a) participate as riders in authorised race meetings or (b) persons, other than apprentices, owners or trainers, who agree to do ride-work on a horse at any racecourse whilst the holder of a licence, permit or approval to ride in accordance with the Rules of Racing.
In my view, it is apparent that the categories of persons falling within sub.s.(4) are contemplated to be those who, for the purposes of the race or ride agreed to, are to receive specific remuneration, not only because they are the types of persons with which the section is generally dealing, but also because sub-s.(4)(b) stipulates that "the amounts paid to the person in respect of so participating [in a race] or doing [ride-work] shall be deemed to be remuneration". In other words, the section contemplates that the race rider or ride worker, in order to become the deemed employee of the VRC, is participating in the race or ride under a contract for specific payment. Hassett was not such a rider because such ride-work as he performed was part of his general duties as an employee of Smith for which duties he was paid a regular wage. Sub-s.(4)(b) was not intended to bestow fictional employment on such persons for the purposes of being covered by the Act because they were already covered.
In any event, I do not accept that the fact that Smith was required to and did register Hassett as an employee who worked in connection with the training and care of racehorses, an obligation imposed upon Smith alone, resulted in Hassett becoming the holder of a licence, permit or approval from the VRC to ride. Such authorities were intended to be personal to the holder and were authorities customarily given by the VRC to recognised categories of persons pursuant to powers invested in it not only by the Rules but also by the Regulations of the VRC. Rule 1 of the Rules defined "licence" as including an "approval or permit" and regulation 1 makes it clear that jockeys must be licensed to ride, apprentices are entitled to permits to ride and other specified classes of riders such as "lady riders" and "amateurs" are entitled to ride with the "approval" of the Stewards. It is tolerably clear, in my view, that it is these categories of persons who are referred to in s.16(4)(b) and that the sub-section is not intending to refer to an implied approval emanating from the registration of a person as an employee of a trainer pursuant to Rule 74(1). That is no doubt why Hassett, in his evidence, was content to concede that he held no licence, permit or approval from the VRC.
I would therefore reject this ground of appeal, but, in doing so, I should say that I do not accept the argument made by Mr Kendall, Q.C., who appeared with Mr Webster for the second, third and fourth respondents, that a person who does not fulfil the characteristics of a person referred to in s.16(1) cannot for that reason qualify as a person within the exception created by sub-section (4).
The Issue of the Liability of the Trainer
It remains to consider the final ground of appeal argued by Mr Meldrum, namely that his Honour erred in concluding that the second respondent Gayval was not negligent. This issue really arises from the contribution proceedings fought between the defendants at the trial of the principal proceedings. Although the notices for contribution do not appear in the appeal books we have been informed that Notices for Contribution were exchanged between the VRC and Gayval. Once his Honour had determined those proceedings against the interests of the VRC and in favour of Gayval, there should have been appropriate orders made disposing of the contribution proceedings. Although no such orders were formally made by his Honour, we have been invited to proceed on the basis that they were made, thus giving to the VRC a right to appeal against the judgment made in favour of Gayval. In any event the appeal brought by the VRC is against "the whole of the judgment and consequential orders" made in the proceedings. Alone or in combination these matters are sufficient to entitle the VRC to appeal against the finding that Gayval was not liable to Hassett (W.H. Wright Pty. Ltd. v. The Commonwealth [1958] V.R. 318 at 320-1).
Mr Meldrum submitted that, in dealing with this issue of Gayval's liability to Hassett, the judge materially misdirected himself by attributing too much weight to the employer's lack of control over the static condition of the racetrack.
His Honour found that the tan-bark crossing, because of its colour and slippery and unstable construction, constituted "a danger of some magnitude" to horse and rider in circumstances where the horse was being ridden over it at full speed. He further found that the "degree of danger was, in my opinion, high". Additionally his Honour found that "the magnitude of the risk of an accident happening and the potential seriousness of an accident, if it did occur were ... at a significant level".
To the uninitiated these findings might appear somewhat surprising but they were findings which were open to his Honour on the evidence and not challenged on appeal. Evidence was given at the trial not only by the plaintiff but by a number of experienced jockeys who deposed to the existence of the danger. Furthermore evidence was given by employees of the VRC who acknowledged that the crossing was a danger and also testified that the crossing had now been re- located and differently composed. Indeed his Honour remarked that he was able more confidently to draw the conclusion which he did as to the danger constituted by the crossing by the failure of the defendants to call any evidence in rebuttal of the plaintiff's evidence as to this issue. As his Honour said:
"Given the position of the defendants, effectively the VRC and a prominent trainer (i.e. T.J. Smith), it might be assumed that they would have ready access to plenty of expertise on this topic."
The evidence, accepted by the judge, indicated that the danger could have been avoided or minimised by the simple expedient of removing the tan-bark and replacing it with sand covered by grass clippings.
His Honour found that the VRC appreciated the danger and that Smith was "dismissive of it as a problem". In his Honour's view "that represented a mind set that Mr Smith seemed to have towards the episode generally". It should perhaps be remarked that Hassett, whom the judge regarded as an honest and reliable witness, had said that he had complained before the accident to Smith's foreman about the danger of the crossing but had been told that he could look for work elsewhere if he was not happy.
It was in the context of these findings that his Honour considered the negligence of both the occupier of the premises (i.e. the VRC) and the employer, Gayval. The fact that the danger was one of some magnitude carrying with it the risk of significant injury heightened the respective duties, as his Honour recognised, to the point where "the standard of reasonable care may involve a degree of diligence so stringent as to amount to practically a guarantee of safety" (Burnie Port Authority Ltd. v. General Jones (1994) 179 C.L.R. 520).
His Honour found that the VRC was in breach of its duty as occupier for failing to take reasonable steps to minimise or eliminate the danger. Having done so, he disposed of the issue of the employer's liability in somewhat peremptory terms. He said:
"I turn to the question of the first named defendant's liability. Again the question is: Did the first named defendant act reasonably? Despite Mr Smith's protestations to the contrary I believe that he ought to have recognised the potential danger of the crossing. But he did not have the same obligation to assess the potential danger and consider options as did the second named defendant. After all, all the first named defendant was doing was using this racecourse as a training venue. He did not control the venue. He did not have the obligation or opportunity to consider the issue with the same degree of concern. He did not control the course. He had no say over how the danger should be avoided or minimised.
I am of the opinion that Mr Smith was entitled to consider that the track was in the hands of experts which it was. My conclusion is that it would not be reasonable to say that he should have gone behind the decision of the second named defendant [i.e. the VRC] and exercised independent control over the way in which his horses and jockeys worked on this course. It follows, therefore, that I cannot be satisfied that the liability of the first named defendant is established."
In my view this line of reasoning lends substance to the contention by Mr Meldrum that his Honour paid too much attention to the VRC's control of the racecourse and fails to grapple with the scope of the over-riding duty which the employer had to take reasonable care not to expose his employee to foreseeable risk of serious injury. True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, that occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he has breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v. Austin Lifts Ltd. [1959] 1 W.L.R. 100:
"Notwithstanding what was said in Taylor v. Sims & Sims (167 L.T. 414), it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an over- riding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work ...; and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable depends, of course, on the circumstances."
(See also Wilson v. Tyneside Window Cleaning Co. [1958] 2 Q.B. at 121-2 per Pearce, L.J.; Sinclair v. William Arnott Pty. Ltd. (1963) 64 S.R. (N.S.W.) 88 at 9102 per Walsh, J.)
One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors. But this was a case where his Honour had found that the risk was one of magnitude and the foreseeable injury serious. Smith, as a prominent trainer, was very familiar with the track and, as his Honour found, should have been aware of the danger posed by the crossing but was "dismissive of it". In those circumstances it was, in my view, incumbent upon a prudent employer to consider whether the risk to his employee could be avoided or minimised by the employment of reasonable means, notwithstanding the occupier's control over the condition of the crossing. It was not, in my view, a sufficient performance of the duty, as it would appear his Honour found, to forego the exercise of any independent control of the way in which his employee worked the horses on the course simply because he was entitled to consider that the course was in the hands of experts. This was, in my view, tantamount to suggesting that the employer was justified in delegating his personal duty as employer to the VRC. This, of course, the employer was not entitled to do (Wilsons & Clyde Coal Co. v. English [1938] A.C. 57 at 78; Kondis v. State Transit Authority (1984) 154 C.L.R. 672 at 680). In making the comments which I have just made I am conscious of the fact that, in the course of his second judgment delivered some two months later, his Honour observed that, in making the remarks to which I have referred, he was not concluding that the employer "had somehow disposed of its duty of care" but rather was saying that, in the circumstances, there had been no breach of that duty. However, and with respect to the learned judge, it seems to me that his assessment of the employer's liability was closely confined to the opportunity which the employer had to rectify the danger when it was in the control of the VRC. It does not seem to me that he considered, and if he did he does not mention them, whether there were other precautions which the employer could have taken to prevent injury to his employee in pursuit of his overriding duty. Thus his Honour said that, although the employer should have recognised the potential danger of the crossing, he "did not have the same obligation to assess that danger and consider options as did [the VRC]", and, further, that because the employer was not in control of the venue "he did not have the obligation or opportunity to consider the issue with the same degree of concern". If these statements mean only that the employer could not have interfered with or directed reconstruction of the crossing, then they may be justified. But, in my view, that was too limited a view of the performance of the employer's duty, particularly where the judge had found the danger posed by the crossing to be one of magnitude capable of producing serious injury. However, in assessing the employer's performance of his duty in this manner, it seems to me that his Honour was tending to place the employer in the shoes of the occupier and, in doing so, ran the risk of confusing two differing standards of care.

I am accordingly of the view that his Honour has misdirected himself in respect of this issue. The parties sensibly agreed that, if the Court should come to that view, it should determine for itself whether the evidence supported a breach of the employer's duty of care, rather than sending the matter back for a re-trial on the question of liability.
I have, accordingly, reviewed the evidence before the trial judge. Having done so I am, for myself, satisfied that the evidence does support the conclusion that Smith fell short of the standard of care expected of the prudent employer in the circumstances. Faced with a danger of the magnitude which his Honour found that the crossing constituted, there were, I think, a number of options open to the prudent employer to avoid or minimise the risk to his employees. Mr Meldrum mentioned some of them; namely, performing "fast work" on another part of the track; or alternatively commencing such work from a point on the circuit so that the horses were not at full gallop at the point where the crossing was. Although it was customary for trainers to do their fast work at this point on the steeple grass track it was not, at least on the plaintiff's evidence, customary to gallop the horses for the final furlong in order to avoid what was described as "the gap". Trainers would apparently ask the riders to slow their horses before "the gap" because it was notorious for "unsettling the horses" (plaintiff's evidence at p.9). A prudent trainer, aware of the significant danger posed by another feature on the course, could no doubt have re-organised his training schedule in similar fashion, particularly as the full circumference of the track was available to work on (plaintiff's evidence at p.48).
There was, in my view, a further option reasonably open to Smith if he had adopted the standard of care expected of a prudent trainer who knew or should have known that the crossing was a danger of some magnitude capable of producing serious injury. Smith was clearly a trainer of considerable repute and, one can reasonably infer, with considerable influence if he had chosen to put pressure on the VRC, either alone or with other trainers, to re-locate or change the structure of the crossing. Mr Burr, the training track supervisor of the VRC, gave evidence that the VRC ultimately re-located or eliminated a number of crossings around the track due to pressure imposed by trainers (transcript pp.222-3). This evidence suggests, and indeed it would seem to me to be a matter of probability, that if Smith and/or trainers of similar repute had pressed the VRC to re-locate or change the structure of this crossing because of its danger to horses and riders, the VRC would no doubt have done so; particularly if Smith or other trainers instructed their riders not to use this or any part of the track until the danger was rectified. But of course Smith did not use his influence because, as the judge found, he was dismissive of the problem.
These were precautions which the evidence suggests the employer could have taken if he had exercised the standard of care expected of the prudent trainer who knew, or should have known, that the crossing was dangerous and had the potential to cause serious injury. If one or other of these precautions had been taken the danger to the plaintiff would have been avoided or minimised.
I am, accordingly, satisfied that the evidence before the judge should have led to the conclusion that the employer had breached his duty to Hassett.
In my view an appropriate assessment of the respective contributions of Smith and the VRC to the damage suffered by Hassett leads me to the conclusion that they should share the blame in equal proportions. My conclusion therefore is that the appeal against his Honour's judgment in the principal proceedings should be allowed and that judgment should be entered in favour of Hassett against both defendants for the sum assessed by the learned judge. In the contribution proceedings between those defendants it should be ordered that it is just and equitable that each should contribute equally to those damages and that they should equally bear the burden of the plaintiff's costs of the proceedings.
In respect of the appeal against his Honour's judgment in the second proceedings I would allow the appeal but only for the purpose of consequentially adjusting the sum ordered to be paid by the VRC to the insurers, by reducing that sum by one-half. Otherwise I would dismiss the appeal in those proceedings.

BROOKING, J.A.:

I concur.

BUCHANAN, J.A.:

I agree.

WINNEKE, P.:

Gentlemen, we will leave it to you to send us minutes of appropriate orders. (Discussion ensued.)

WINNEKE, P.:

So far as the costs are concerned, gentlemen, we will order, in the appeal against the principal proceedings, the second, third and fourth respondents pay the costs of the appellant in the appeal. In the appeal in relation to the second proceedings, that is, the indemnity proceedings, your client, Mr Spittle, the appellant, should pay the costs of the second, third and fourth respondents.
The Court will direct a certificate under s.14 of the Appeal Costs Act in each
appeal.

COURT OF APPEAL	Not Restricted
No. 7964 of 1996 No. 4017 of 1997 No. 8386 of 1997

(2)	...
(3)	For the purposes of sub-section (1) "person" does not include a

[1998] VSCA 24

14 August 1998