Cash v Tucker

[1995] QCA 323

IN THE COURT OF APPEAL	[1995] QCA 323
SUPREME COURT OF QUEENSLAND

Appeal No. 245 of 1994

Brisbane

[Cash v. Tucker]

BETWEEN:  DENNIS CASH

(Plaintiff) Appellant

AND:  GRAHAME ALLAN TUCKER

(First Defendant)Respondent

AND:  VALMAY KATHLEEN TUCKER

(Second Defendant)

AND:  FAY ALISON DOUGLAS

(Third Defendant)

AND:  GALVIN JAMES DOUGLAS

(Fourth Defendant)

AND:  ALBERT GEORGE FIELD

(Fifth Defendant)

Fitzgerald P.
Davies J.A.

Shepherdson J.

Judgment delivered 25/07/1995

Joint reasons for judgment by the President and Davies J.A.;

Shepherdson J. agreeing.

APPEAL ALLOWED. THE JUDGMENT BELOW IS SET ASIDE AND IN LIEU THEREOF, JUDGMENT IS TO BE GIVEN FOR THE APPELLANT IN THE SUM OF $88,798.00 WITH COSTS. THE RESPONDENT IS TO PAY THE APPELLANT'S COSTS OF THE APPEAL.

CATCHWORDS: PERSONAL INJURIES - whether statement by respondent that horse was good to ride, was negligent in the circumstances.

Counsel:	Mr. P. Keane Q.C., with him Mr. J. Baulch for
the appellant
Mr. K. Fleming Q.C., with him Mr. C. White for the respondent
Solicitors:	Quinlan Miller & Treston as town agents

for Macrossan and Amiet for the appellant

Connolly Suthers for the respondent

Hearing Date: 31 May 1995
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 245 of 1994

Brisbane

Before Fitzgerald P.
Davies J.A.
Shepherdson J.

[Cash v. Tucker]

BETWEEN:  DENNIS CASH

(Plaintiff) Appellant

AND:  GRAHAME ALLAN TUCKER

(First Defendant)Respondent

AND:  VALMAY KATHLEEN TUCKER

(Second Defendant)

AND:  FAY ALISON DOUGLAS

(Third Defendant)

AND:  GALVIN JAMES DOUGLAS

(Fourth Defendant)

AND:  ALBERT GEORGE FIELD

(Fifth Defendant)

JOINT REASONS FOR JUDGMENT - THE PRESIDENT AND DAVIES

J.A.

Judgment delivered the 25th day of July 1995

The appellant, who was the plaintiff in an action for

damages for personal injuries, is a professional jockey.
The respondent, who was the first defendant in the action,
is a horse trainer. He obtained his trainer's licence on 27
January 1988.

On 27 April 1988 the appellant was thrown from a race horse called "Gala Crossing" which was trained by the respondent. In his fall he broke his right arm. He sued the respondent and some other persons in the District Court for damages for negligence in consequence of that fall and injury. The action was dismissed and it is from that judgment that this appeal is brought. The learned trial Judge assessed damages but there is no appeal against that assessment.

The respondent received the above horse for training on 22 March 1988. He then engaged a Mr. Mark Tonion whose job it was to train horses sufficiently to enable them to be safely ridden by jockeys using a racing saddle or pad. Mr. Tonion performed some work with the horse and returned it to the respondent advising him that it was quiet and ready to be ridden by a jockey.

It appears likely that the appellant was the first jockey to ride the horse for it was first ridden by a jockey on 4 April 1988 and the appellant said that he rode it on 4 and 5 April 1988. He said that he had a lot of trouble with the horse. He described it as unruly and unsafe, amongst other things by putting its head down to the ground in a motion which he described as "diving forward". He told the respondent at the end of the first day that the horse was a bit wild and a bit erratic. At the end of the second day he said that he told the respondent that he did not want to ride the horse any more because it was erratic and too wild.

He said that the respondent then told him that he would get

someone else to ride the horse.

The respondent denied that any such conversation took place. He said that no such complaint was ever made. It is surprising and unfortunate, given the importance of that conversation, that the learned trial Judge made no specific finding in respect of this conflict of testimony. However it appears from a finding which he made in respect of a subsequent conversation that some complaint such as the appellant deposed to must have been made and acknowledged as justified by the respondent before 27 April.

The appellant did not see anyone else riding the horse between 5 April and 27 April. However he gave evidence, which was accepted by the learned trial Judge, that on 27 April the respondent asked him again to work the horse for him. The appellant replied that he was "not riding him, he plays up too much"; to which the respondent said "he won't play up, he's going good now". The most likely inference from this conversation, especially the use of the word "now", is that some such earlier complaint as that to which the appellant deposed had been made.

In the period between 5 April and 27 April the horse had not been subjected to any further training by Mr. Tonion or any similar expert. However according to the respondent it had been ridden during that period and, according to the appellant, the respondent told him that it had been ridden by a man called Tony Hodder during that period.

During that period the horse had apparently not been well behaved. According to the respondent he had a vice in that "he used to stir up when coming off the track". This occurred about 85% of the time. The respondent said that he would have told anyone who was riding the horse that it played up "and everything"; but that he did not tell the appellant this on 27 April. There is no dispute that the horse bucked the appellant off on that day.

Another jockey, Mr. Murray, commenced riding the horse, either the day after 27 April or two days later. He then rode it, on and off, for the next two or three months. The horse also bucked when he was on it although he was never dislodged.

There was also some evidence elicited from the respondent in cross-examination that there "could have been a couple of people" other than the appellant who had told him that they did not want to ride the horse. It is not clear when this may have been.

Evidence was given in the case about the instability of

a racing saddle or pad compared to a traditional saddle;
the jockey depending very much more on balance in order to
maintain his place on the horse. For that reason there can
be no doubt that if, on 27 April, it was reasonably
foreseeable by the respondent that the horse would behave in
the way in which in fact it did, it was negligent of him to
represent to the appellant that it was "going good now";
and that that negligence caused the appellant's fall and
injury.

The most reasonable inference to draw from the evidence to which we have referred, in our view, is that it was foreseeable on the part of the respondent on 27 April that the horse would behave in the way in which it did. Its behaviour immediately prior to the appellant's refusal to ride it on 5 April, its fractious manner as described by the respondent between that date and 27 April and its behaviour as described by Mr. Murray immediately after 27 April indicates a likelihood that its nature, known to the respondent, was unchanged over the whole of this period and that that nature made it unsafe to be ridden by a jockey using a racing saddle.

For those reasons we would conclude that, contrary to the learned trial Judge's findings, the respondent was negligent in making the statement which he did to the appellant on 27 April and that this caused his fall. It was not disputed that the relationship between the parties was such as, in those circumstances, to give rise to a duty of care on the part of the respondent.

The appeal should be allowed, the judgment below set aside, and in lieu thereof judgment be given for the appellant in the sum of $88,798.00 with costs. The appellant should have his costs of this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 245 of 1995
Before	Fitzgerald P. Davies J.A. Shepherdson J.

[Cash v. Tucker & Ors]

BETWEEN

DENNIS CASH
(Plaintiff)

Appellant

AND

GRAHAME ALLAN TUCKER
(First Defendant)

Respondent

AND

VALMAY KATHLEEN TUCKER
(Second Defendant)

AND

FAY ALISON DOUGLAS
(Third Defendant)

AND

GALVIN JAMES DOUGLAS
(Fourth Defendant)

AND

ALBERT GEORGE FIELD

(Fifth Defendant)

JUDGMENT - SHEPHERDSON J.

Judgment Delivered 25 July 1995

I have had the benefit of reading the reasons for judgment of the President and Davies J.A. I

agree the appeal should be allowed and for the reasons which they give and I agree with the orders they

propose.