Channan v Moody Racing

[2022] VCC 2283

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL List

Case No.  CI-20-04598

SALIM CHANNAN	Plaintiff
v
MOODY RACING PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25 and 28 February 2022 & 1 and 2 March 2022
DATE OF JUDGMENT:	16 December 2022
CASE MAY BE CITED AS:	Channan v Moody Racing
MEDIUM NEUTRAL CITATION:	[2022] VCC 2283

REASONS FOR JUDGMENT
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Subject:Common law

Catchwords:           Negligence; Fall whilst mounting racehorse; Conflict of evidence;

Burden of proof

Judgment:  Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Monti KC with Mr A. Dimsey	Easton Legal
For the Defendant	Mr A. Moulds KC with Mr L. Howe	Hall and Wilcox

HIS HONOUR:

Introduction

1Salim Channan is an experienced horseman.  He began riding in his native Syria at the age of 10 at an equestrian club.  He won a national championship in that country at the age of 12, and later competed both nationally and internationally while pursuing a career with the Syrian army.

2He was apparently selected to represent his country at the 1992 Barcelona Olympics, but did not actually compete.  In 1995 he was again apparently nominated by the Syrian Arab Equestrian Union and the Syrian Army Sport Union to represent his country in the Military World Games which were held in Rome. 

3In addition to his prowess with equestrian activities, he studied at tertiary level in both Syria and Lebanon and obtained a Bachelor Degree in  history and completed a Diploma in Beirut as a forerunner to completing a Masters Degree.  The studies in Lebanon were not completed due to political unrest and Mr Channan returned to Syria to continue with his army career where he apparently saw active service up until late 2006.

4He came to Melbourne in 2007 with an intention to pursue a career in the horse racing industry.  Although he had some language issues, he managed to find employment riding track work with the defendant in April 2007.  He continued to work there until he was involved in a fall while mounting a horse prior to riding track work on 26 March 2015.  At that time Mr Channan was 38 years of age.

5In this proceeding Mr  Channan alleges that the fall was caused by the negligence of one of the defendant’s employees who was at the time assisting him to mount the horse to ride in track work on that particular day. 

6It was not disputed that Mr Channan had suffered a fall from a horse on that date.

7The defendant, and particularly Mr Vince Albanese, the stable hand who was assisting Mr Channan, strenuously denied the allegation of negligence.

8The credit and reliability of Mr Channan as a witness was very much in issue, both in relation to the question of liability and also in relation to the extent of injury resulting from the fall and the consequences of his injuries in terms of general damages.  There was no claim for pecuniary loss.

9The defendant had pleaded contributory negligence in the defence, although ultimately this pleading was abandoned.[1]

[1]Transcript (“T”) 382, Line (“L”) 8-14

10Essentially the liability question was to be distilled in the following manner.  If the plaintiff’s version of events on 26 March 2015 was proved on balance, he would succeed on the liability question.  If his version of events was not proved, or a different version was accepted, the plaintiff would fail.

11As a result of the fall Mr Channan had suffered an injury to his left knee and subsequently developed what was described as a pain disorder and an adjustment disorder with features of anxiety and depression.  The only medical witness called was Dr Richard Sullivan, a pain management specialist, who had been treating Mr Channan since 2015.  The remainder of the medical evidence was tendered by the parties from their respective court books. 

12Mr Channan had suffered an earlier knee injury in 2010 when he had come under the care of Mr Sam Patten, orthopaedic surgeon.  Fortunately in terms of the conduct of this litigation, Mr Patten had again treated him after the 2015 incident and his various reports were tendered in evidence.[2]

[2]Exhibit M & Exhibits 13 to 16

13The hearing was conducted remotely over five days in February and March 2022.  Mr Channan and Dr Sullivan gave evidence on behalf of the plaintiff.  Ms Donna Fisher, who was a foreman at the defendant’s racing stables up until 2016, and Mr Vincent Albanese, who agreed that he had been the stable hand assisting Mr Channan to mount the horse when the incident occurred, gave evidence for the defendant.

14It was clear as the oral evidence was given, that there were two very different versions of events.  The credibility of Mr Channan was an essential element in determining the outcome of this proceeding.

Liability

15The issue of Mr Channa’s credibility and reliability as a witness was apparent when the case was opened.  Mr Monti KC, who appeared with Mr Dimsey on behalf of the plaintiff, acknowledged in opening the proceeding that Mr Channan had been working a second job at the time when the incident occurred in 2015.  He had not been forthcoming in relation to this situation when claiming statutory benefits resulting from his initial period of incapacity.  This had resulted in criminal proceedings in 2016.  These had resulted in a diversion order made in the Magistrates’ Court.

16As Mr Channan’s evidence unfolded it became clear during cross-examination that his truthfulness and reliability as a witness was seriously attacked by Mr Moulds KC, who appeared with Mr Howe on behalf of the defendant.  The further attack on Mr Channan’s credit was largely based on surveillance of Mr Channan in November 2016.[3]

[3]Exhibit 9

17In assessing the reliability of Mr Channan’s evidence it is necessary to consider  what evidence was given by him as to the precise circumstances of the March 2015 incident.

18In giving evidence-in-chief Mr Channan had referred in considerable detail to his extensive experience when overseas.  He had arrived in Melbourne in March 2007.  His first job with the Moody Stable was mucking out boxes.  He had commenced this work about one month after arriving in Australia.[4]

[4]T 39, L 14-20

19Mr Channan also accepted the proposition that he was probably too big to be a jockey riding in races:

“My name in the stable … ‘the big fella’.”[5]

[5]T 40, L 24-29

20He had initially been about 90 kilograms when he joined Mr Moody’s stable:

“… very tall soldier when I came here. … Then I minimised my weight up to 59 kilos and I maintained that weight between 59 and 63.”[6]

[6]T 41, L 3-8

21He was not reticent in describing his ability when he commenced riding:

“I used to ride most of the horses and they used to joke about me in the stable.  ‘Put your magic touches on the horse, every horse you ride wins.’”.[7]

[7]T 42, L 30 to T 43, L 1

22Mr Channan maintained that prior to the March 2015 incident he had ridden most of the horses at Mr Moody’s stable:

“We have about 300 horses on the stable and a full work at the time for a few years.  Most horses actually they went through me at a gallop … I did ride most of them.  Dissident one of them.  …

Did you ride Black Caviar?---I did.  Black Caviar, I retrained Black Caviar and she was with another horse, he’s a sire now, he won the Blue Diamond at the same time.”[8]

[8]T 47, L 19 to T 48, L 1

23Mr Channan described working in a second job shortly after he commenced with the defendant:

“I work as a stonemason from 2008 until 2012 full time employment.  And I think I started getting a bit old possibly to work as a stonemason and then I get – obtain a taxi licence and obtained a limousine licence and since 2012 until my accident I used to do all sorts of limousine driving.  And I drove Peter Moody as a client for several times and some other people.”[9]

[9]T 48, L 18-28

24The work as a track rider was described as follows:

“I used to come in at 3 am.  I put my gear on and I saddle my first horse, and I get leg up on the stable by the (indistinct) or senior rider at the time assistant.  I work off my first horse.  Depends the day – on days we have a busier day than others, then they lead the horses to us.  The stable hand staff- they lead the horses to the tunnel.  We not allowed to change inside the course, must be on the tunnel or before the tunnel.  Sometimes if we are running short of the staff, we walk back to the stable, we hand our horse, then we get the other horse back from the main barn or the other barns, and come back to the course.”[10]

[10]T 49, L 25 to T 50, L 5

25After riding the first horse Mr Channan would return to the tunnel, or sometimes the barns, where the next horse was already saddled and ready to mount:

“Most of the time the horses will be saddled and ready to go.  Sometimes we just check the gear and take off.”[11]

[11]T 50, L 7-10

26Mr Channan gave evidence about two systems being used for mounting:

“When someone leading the horse for us – if I’m riding a stallion or riding a colt, or a horse have some difficulty, they send someone leading the horse and assistant with me.  The assistant will take the horse from me, and that person who’s got the horse will help me to give me a leg up to the horse, and take off.

On the – on the stable most of the time – we call it the foreman office, which is – it’s only a board with a whiteboard near the entrance, and usually the foreman or the assistant when we’re walking out, give us a leg up and give us the schedule of the horse.  ‘This horse doing a slow work or fast work, or this particular type of work.’”[12]

[12]T 50, L 20 to T 51, L 1

27Mr Channan agreed that the whiteboard near the foreman’s office was used to list the horses to be ridden by himself and other track riders and also any particular instructions to be followed. 

28The usual system for mounting the horses was described by Mr Channan as follows:

“Usually we’re legged up by a senior stable hand or the foreman of the stable.  Usually they hold the horse in their left hand under the chin or near the bit, and they come near us on the near side where we hold the reins in our left hand, near the saddle and we put our hands on the saddle, we give them left leg up, they put their right hand under our ankle – our ankle and they give us a little pull to the stable (ankle) help us to mount.

And then you’re in a position to get your feet in the irons and you’ve got hold of the reins?---Yes, so when we are fully stable and we fully in control of the horse we tell the assistant, yep, all good mate, then he will release his reins.”[13]

[13]T 51, L 17-30

29Mr Channan also gave evidence that there would be generally about 10 track riders doing some sort of work on between 50 and 100 horses on any particular morning.  He would normally finish his work at 7 am.

30On the morning of the incident he had already ridden approximately four or five horses.  It was not disputed that the incident occurred somewhere between 6.00 and 7.00 am.  Prior to attempting to mount the horse involved in the incident, he had been legged up onto the other horses, he believed by Paul Harrison, who was the foreman at the time:

“He was a very experienced race horse trainer, he work as a foreman and assistant for Peter Moody and I think he helped me out with most of the horses.”[14]

[14]T 52, L 28 to T 53, L 3

31His description of the incident was as follows:

“… my colleague, Vince, leading the horse – I’m still inside the barn, and the horse was inside the barn actually and my colleague, Vince, came and Paul told me, ‘Ah, Sal, that’s your horse (indistinct)’, and – yeah, I put my horse the one I was on back – I give it to someone or put it in the box I can’t remember, and I went to Vince to get my horse.

… He was walking outside the box and I met him just near the foreman office or near the board, in the middle of the barn, when he was waiting for me and possibly he was running late,  maybe he was leading the horse out, I can’t remember, but the horse was inside the barn when he was with Vince. (The horse was already saddled and ready to go).

… I went into the barn and checked my gear to make sure that the saddle and the – I always check my gear as every other rider to make sure everything safe for the rider and the horse.  Came into the nearside, get the position to ride – to mount the horse.  Then I realised my colleague has hold my ankle with two hands and I paused a little bit, I didn’t jump straight, I paused, I thought maybe he’s doing something else.  Then I told him, ‘Yeah, all good mate,’ just want to make sure we are on the same page, we are on the same stand of mount and I said, ‘Yep, no worries.’  Then I thought he knows what he’s doing.  And - - -

… I think he overshot me over the saddle.

… When I told him all good and he – he did respond as, ‘Yes, all good’ for me to mount, then I notice myself I’m flying in the air and I yelled at him or I spoke a bit louder, ‘Oi, Oi, Oi,’ then I landed bad on the saddle, I was way above the saddle and I landed half of my side or my weight going onto the other side.  The push was too – even my handle on the rein has went way too high and my body way higher than the saddle towards the other side.

…I bounced back on the saddle and I’ve fallen on the other side and I think Vince tried to relocate me on the saddle, he realised there was some mistake happened here, he tried to –

… I think – he’s only holding my ankle, and that’s all he has to do with me and I think he kept both hands on the ankle and tried to relocate me while all my body was on the other side, my knee on the saddle and my ankle in his hand was too hard for me to get back from an ankle when my body on the other side.

… I think I screamed while I’m still up in the air, I screamed in a very painful manner and I think that’s the reason he released me.  The horse was calm, the horse was there it is and when I screamed and I screamed pain I think he realised I have to release the rider.

… I fall from the other side I was, I was already on the side trying to hang a little bit and fall all the way down.[15]

[15]T 53, L 31 to T 55, L 13

32It was clear during evidence-in-chief that Mr Channan had not been hesitant to set out in considerable detail his lengthy experience and expertise as an equestrian.  In response to my question concerning track riders falling from horses about once per month he stated:

“I was very glued up to the horse but, yes, we always have our falls and I think I was very well known that I fall on my feet.  Yes, I have several falls where I was off duty and sometimes more than one fall a month.”[16]

[16]T 55, L 21-29

33Mr Channan also described the events occurring immediately after his fall.  He was asked if anyone had come to his assistance:

“I think at that time I think Mr Albanese has moved the horse away from me and I think I crawled, or I pulled myself, I couldn’t stand – pulled myself near the office … I believe the trainer assistant, Steph, and possibly at the same time Paul has contacted the first-aid office at the racecourse and the person from the first-aid office has came in and gave me a whistle.”[17]

[17]T 60, L 13-23

34Mr Channan also stated that Mr Albanese had asked if he was okay and then apologised to him saying:

“’I’m so sorry, I’m so sorry, I don’t know what’s happen, I’m so sorry I effed it up, I’m so sorry.” 

35Mr Channan stated that he replied:

“’Don ‘t you worry, Vince, things – things happen, don’t you stress, would you mind please get into my locker and get my wallet, my keys and my phone.’  He did and he came back and he apologise, I said, ‘I’m not upset with you, mate, accidents happen, let us move forward.’”[18]

[18]T 60, L 24 to T 61, L 4

36Mr Channan then described an ambulance being called and he was taken to the Alfred Hospital.  The ambulance record dated 26 March 2015 was tendered into evidence on behalf of the plaintiff.[19]  The ambulance record noted the following as the cause of injury:

“Description

PT (patient) 38 yom.  PT stated that he was being assisted up onto a horse at around 0544 hrs this am, started to go over the other side of the horse which caused those lifting him to pull on his foot, twisting his L knee.  PT fell off the horse on the other side, landing on his R leg and arm.  No head strike or LOC.  PT was assisted by an off duty MICA paramedic who administered 3 NL penthrane, bandaged L knee and applied ice pack.  AV called.”[20]

[19]Exhibit 16

[20]Exhibit B

37The Alfred Hospital records were tendered as part of the same exhibit.  They contained the same entry as the ambulance record.

38Given the attack which was ultimately made on Mr Channan’s credit, it is appropriate to record the further evidence called on his behalf relevant to the circumstance so injury.

39First, a WorkSafe claim form completed by Mr Channan and dated 26 March 2015 was tendered into evidence.[21]  The employer report dated 1 April 2015 also formed part of that exhibit.  Mr Channan’s description was recorded in the following terms in his claim form:

“What happened and how were you injured? 

Was being assisted on to race horse this morning when fell over the other side but assistant held my left leg.”

[21]Exhibit Q

40In that same document Mr Channan provides details of the person to whom he reported the injury, identifying “Paul Harris – foreperson (involved with injury),” a phone number is also provided for Mr Harris.

41Mr Channan’s WorkSafe claim form notes that it was lodged with the employer on 30 March 2015.  It is signed by a person identified as Andrea Brown who occupied a position of office manager/HR.

42The employer injury claim report was completed by Ms Brown on 1 April 2015.  In that document the incident details are recorded as follows:

“What happened and how was the worker injured?

Whilst mounting a horse his knee was jarred when the horse moved.”

43The employer’s report identifies the foreperson, Paul Harris, and Stephanie Little as the persons to whom the injury was reported.  Telephone numbers for Mr Harris and Ms Little are also set out in the employer’s report.  Neither person gave evidence.

44Following his discharge from the Alfred Hospital Mr Channan attended the Springvale South Medical Centre and was seen by Dr Chi-Lye Tang on 30 March 2015.  A single report from Dr Tang dated 15 January 2016 was tendered in evidence.[22]  In that report Dr Tang records the initial history as follows:

“Mr Salim Channan first presented to Springvale South Medical Centre with the injury to his left knee on 30/3/2015, he gave a history of being helped by an assistant to mount a horse on 26/3/2015, but Mr Channan fell off the other (right) side of the horse.  His left foot was still restrained by the assistant, resulting in injury to his left knee.

[22]Exhibit O

45Dr Tang then proceeds to set out the findings recorded at Alfred Emergency, but his report makes no further comment on the circumstances of injury.

46Mr Channan was referred by Dr Tang to an orthopaedic surgeon, Mr Sam Patten.  Four reports relating to his treatment following the March 2015 incident were tendered on behalf of the plaintiff.[23]  The only reference to the circumstances of injury was in a letter to Dr Richard Sullivan, pain specialist, dated 29 September 2015:

“Thank you for seeing Salim who has been attending my practice since earlier this year for management of a left knee injury.

He is a professional racehorse track rider and sustained an awkward twisting injury in March of this year, when he was attempting to mount a racehorse and an assistant was holding his left ankle to hoist him onto the horse.

Unfortunately, there was a loss of balance involving the horse, Salim and the assistant, and he subsequently started to fall off the other side of the horse whilst his assistant retained hold of his left ankle, resulting in significant twisting of the knee.”

[23]Exhibit M

47On 29 July 2015 Mr Channan was assessed by Dr John Lange, occupational physician, on behalf of the WorkCover insurer.  Dr Lange’s report of the same date was tendered in evidence.  He recorded a history relating to the mechanism of injury as follows:

“Mr Channan explained that on 26 March 2015 he was assisted by a colleague to get onto a horse.  Normally one of the managers assists him, but on this occasion he had a new assistant.  It appears that he was hoisted up and over the horse, he overshot the saddle and the assistant held onto his ankle with two hands, trying to stop him from falling over the other side of the animal.  In the process Mr Channan’s left knee was wrenched.  Eventually the assistant let go of his ankle and Mr Channan fell over the other side of the horse and had marked pain in his left knee.”[24]

[24]Exhibit C

48In September 2015 Mr Patten referred Mr Channan to another orthopaedic surgeon, Mr Chris Kondogiannis for a second opinion.  Mr Kondogiannis wrote to Mr Patten on 25 September 2015 noting the relevant history as follows:

“He was being helped onto a thoroughbred with an assistant supporting his left ankle, as he was hoisted into the saddle, he overshot and started to fall off the opposite side.  His work colleague maintained a hold on his left ankle causing twisting traction injury to the left knee as well as the knee striking the saddle.”[25]

[25]Exhibit P

49Mr Kondogiannis thought it appropriate to refer Mr Channan to a pain specialist and he was then sent to Dr Richard Sullivan.

50Four of Dr Sullivan’s reports between 21 October 2015 and 19 October 2021 were tendered in evidence.[26]  Fortunately Dr Sullivan was called to give evidence at the hearing and was cross-examined. 

[26]Exhibit N

51Dr Sullivan recorded the following history in his correspondence to Mr Patten and Mr Kondogiannis dated 21 October 2015:

“He injured himself on 26 March this year having had no serious previous injuries from which he has not recovered completely.  He was attempting to mount one of the race horses when the mounting assistant pushed him a little too far and instead of sliding off the other side of the horse, the assistant grabbed his ankle and in the process he suffered an injury.”[27]

[27]Exhibit N

52Dr Sullivan agreed in the course of his evidence that the contents of his four reports, dated 21 October 2015, 6 April 2017, 16 June 2021 and 19 October 2021, were true and correct.[28]  He was then cross-examined by Mr Moulds KC.

[28]T 138, L 8-25

53Dr Sullivan’s evidence in cross-examination confirmed his diagnosis of central pain sensitisation being an organic condition (rather than one psychologically or functionally driven).  He was cross-examined at some length as to his acceptance of a paper prepared by Professor Teddy and others, suggesting that there was poor clinical evidence in research trials to confirm the organic basis of the diagnosed condition.

54Dr Sullivan agreed in cross-examination that in his first report or clinical letter written in October 2015, he had made no note about any observation of Mr Channan’s gait or weight bearing capacity on his left leg.[29]

[29]T 139, L 2-27

55When taken to his second report written on 6 April 2017, Dr Sullivan agreed that he had noted:

“On examination today, he does not fit the full diagnostic criteria for complex regional pain syndrome … but his persisting regional pain is principally located intrinsic to the knee joint itself.  It is substantially functionally limiting.  He continues to ambulate with a single point stick and needs to use a modified knee brace and he’s been unable to return to the workforce in any meaningful way over the last two years. …”[30]

[30]T 139, L 28 to T 140, L 11

56He further commented that he could not directly recall whether Mr Channan had been using a gait aid in 2015, but stated:

“At that stage he had implied that he had been using the stick for a period of time.”[31]

[31]T 140, L 12-19

57Dr Sullivan confirmed his diagnosis currently as one of central sensitisation stating:

“… my opinion in this matter is that the soft tissue injury pertaining to the medial meniscus and to the medial collateral ligaments were likely well and truly have healed in terms of an acute injury, and that the persisting pain is driven by mechanisms other than injury to those structures.”[32]

[32]T 140, L 20-31

58In cross-examination Dr Sullivan was asked to comment on the examination findings recorded by Dr Sui Tang, (a neurologist at Dr Sullivan’s clinic) who had examined Mr Channan on 15 September 2016.  Dr Tang had noted as to gait:

“He walked with a stiff antalgic gait limping on his left side.”

59Dr Tang had made reference to significant pain behaviour as follows:

“On examination there was significant pain behaviour and passive movement/examination of the lower limbs brought on severe pain, particularly on the left side.  On the left side the pain was focused on the knee and thigh region.  And on the right there was some degree of pain in the hip region.”

60Dr Sullivan agreed that Mr Channan had a review appointment on 24 June 2016, but did not otherwise comment on Dr Tang’s findings.  He did however agree with the general proposition that on every occasion he had seen Mr Channan:

“I can certainly confirm he was complaining of pain ongoing in  his left lower limb, particularly pertaining to the knee.”[33]

[33]T 144, L 6 to T 145, L 12

61Dr Sullivan explained that the diagnosed condition of central sensitisation was biochemical and biophysiological.  He did accept that an individual’s experience of pain and pain behaviour would additionally involve psychological aspects impacting upon the condition.[34]

[34]T 146, L 10-19

62Dr Sullivan agreed with Mr Moulds KC that the honesty of a patient relating their symptoms and complaints was important to a clinician diagnosing the condition.[35]

[35]T 149, L 4-22

63When Dr Sullivan was re-examined he confirmed that he had examined Mr Channan on eight occasions between 21 October 2015 and 28 June 2018.  Over that time he had felt confident in his diagnosis of the plaintiff’s condition and did not find any significant variants in terms of Mr Channan’s presentations on the times that he had attended.[36]

[36]T 166, L 17 to T 167, L 9

64Dr Sullivan also confirmed that he had been frustrated by the delays in approving funding to continue Mr Channan’s treatment.[37]

[37]T 167, L 15 to T 168, L 11

65Finally in re-examination Dr Sullivan was again asked to comment on the basis of his conclusion that Mr Channan had suffered from an organic injury:

“I’m confident that he had an injury to his left knee, that the injury subsided and he was left with a persisting or chronic pain condition.  I believe that there’s adequate evidence in his presentation to stick with the diagnosis of central sensitisation as being the organic driver behind the persisting pain problem.”[38]

[38]T 169, L 13 to T 170, L 6

66Absent any further evidence, it would seem reasonable to conclude that there was something unusual either in the manner Mr Channan was pushed or “legged up” while mounting this particular horse, or perhaps in the manner his foot had been held causing a twist as he was falling.  The confident diagnosis of an organic central sensitisation secondary to a traumatic injury to the left knee, as proffered by Dr Sullivan, would ordinarily be highly relevant in assisting the court to conclude that there was a genuine ongoing organic injury resulting from the manner in which Mr Channan had been legged up in March 2015, or perhaps due to the fact that his leg had been held in appropriately as he was falling. 

67This was not however the end of the evidence led in the trial. 

68A contrary view was given by the assistant, Mr Vince Albanese.  Once again, given the principal issues between the parties, it is appropriate to record exactly what was said by Mr Albanese on this issue when giving evidence-in-chief.  Mr Albanese stated that he had definitely remembered the incident where Mr Channan had had a fall whilst he was being legged up.[39]  Mr Albanese had started working at the defendant’s stables at the Caulfield Racecourse in late November of the previous year.

[39]T 285, L 28-29

69Mr Albanese would see Mr Channan:

“On the odd occasion if I was down at the stables, yes.  Or first thing in the morning. 

… Salim was one of the few riders that didn’t have a designated runner.  Because I think he rode limited amount of horses, so it was imperative to get him out, done as quick as  - so he – he would ride – instead of getting changed over at the tunnel, he would then ride back to the stables and then he’d – he’d swap over horses there.

… I just say - there would’ve been people in and out around the stables, so whoever was there at the time would normally assist those riders.”[40]

[40]T 285, L 15-27

70Mr Albanese identified the area within the defendant’s training facility where this had occurred (the stables).  He was then asked by Mr Moulds KC to describe the incident from a few minutes beforehand:

“Well, at that stage I would have been down at the barn.  Mr Salim, he walked the horse – I’m pretty sure he walked the horse out into that position there.

Right?---From that spot where those stables are, that’s where all the colts and the stallions are kept, the majority, so I’m pretty sure it was a stallion or a colt at that time.

Right?---So I then went over, held the horse with my left hand, because being a colt or stallion, or even a large horse, it’s imperative you’ve always got control of the horse, no matter what, at all times.

When you say you held the horse with your left hand, where was your left hand?---Near the bridle, on the reins.

And what happened then?---And then proceeded to leg him up with my right hand.

When you leg him up, what part of his body do you get hold of, or do you get hold of it, or how does that happen?---It would have been the top of his foot, just near his ankle.

Yes?---Just – yeah, just slightly assist him up.  Yeah.

And what occurred after that?---Well, at the time the horse moved forward or back, and could have shuffled around a little bit, horses don’t stand still, they’re not statues, so there’s always a little bit of movement there.  And at the time as he went up the horse could have possibly just shifted left or right, and he lost his balance and, yeah, he fell off the other side.

What happened with your right hand when you legged him up, did it – what happened?---Nothing happened with my right hand, I was just assisting him up.

When he lost his balance were you hanging onto him at all, or were your hands free?---No, hands are free, left hand was always still maintaining on the horse’s bridle.

After he fell was the horse agitated?---Yes.

Did you hang on to the horse?---Yes.  I walked the horse away.

… And do you know where he went after the fall physically as you put the horse away?---Once I put the horse away he walked over to the other side of the barn and sat down.

And did you approach him, did you speak to him?---I did at some stage, yes.

Did you get his – some of his belongings from a place at his request?

---He gave me his keys and asked me to go and grab, I think possibly his phone out of his car.

Did you have any conversation with him at all about what had happened?

---No.  I would have been still – I would have been still working, so I understand the incident happened, but there’s still another 60 horses, another 20 odd riders out there, so work can’t really cease at the time.”[41]

[41]T 285, L 28 to T 288, L 12

71Mr Albanese agreed that Mr Channan had been attended to by first-aid people and taken away by ambulance.  He did not speak to Mr Channan subsequently after that time.  He also gave evidence that no one on behalf of the employer indicated to him that he was at fault or to blame in any way for the accident.[42]

[42]T 288, L 19-21

72The only other witness called to give evidence relevant to the liability issue was Ms Donna Fisher.  She was working as a stable hand for a trainer in Queensland at the time of the hearing.  She had previously worked at the Peter Moody Stables as a foreman for about eight years leading up to 2016. 

73At the time of this incident in 2015 she was a foreman in one of the three barns at those racing stables.  She remembered both Mr Channan and Mr Albanese being at the stables, although she could not recall whether she had trained Mr Albanese.  Ms Fisher described in general terms the type of training that would be given to a new stable hand:

“The first little while they’d be sort of shown how we did our boxes.  We used to go and tie them up and do the boxes.  Then after that it’d be – we’d be getting horses ready to be worked and quite often they’d either, yeah, had a hose bay person, a person that used to walk the horses after they were hosed or you’d have people run horses out to riders to work them.”[43]

[43]T 264, L 10-17

74Ms Fisher stated that the terms “stable hand” and “runner” were interchangeable:

“… a stable hand is the runner, it’s a full-time worker that used to just lead horses out to the riders, switch ‘em over and bring ‘em back in the morning when they were working.”[44]

[44]T 264, L 29 to T 265, L 2

75Ms Fisher gave evidence that part of the stable hand’s job involved legging up the rider onto the next horse.  She explained what was taught to them as to this procedure:

“… you used to have a lead on them and if you were switching over you used to put the lead on one horse, you’d hold the reins with your left hand and leg on with the right hand to put the – leg the rider on.”[45]

[45]T 265, L 3-11

76Ms Fisher also described Mr Channan as a competent track rider stating that in general terms he would ride all of the horses, “whichever ones they wanted to put him on.”[46]

[46]T 265, L 15-18

77Ms Fisher was not present at the time of Mr Channan’s fall and gave no direct evidence relevant to it.

78When Ms Fisher was cross-examined she gave further evidence broadly related to the system of training stable hands.  She had been aware that Mr Albanese had experience working and training trotters rather than race horses:

“And you’d agree that there’s a world of difference in working and training trotters to what there is in working and training racehorses?---Yeah, there are some similarities but mainly no.”[47]

[47]T 268, L 22-25

79She was then asked about the system used to safely leg up a rider onto a horse:

“To leg a person safely up onto a horse, it requires the legger – if I can use that term – to give the rider only a slight upward push, as the rider springs at the same time.  Is that the way it works?---Yes.

Was the legging done at the Moody stables with one hand or both hands, or sometimes it would vary?---Normally it’d be one hand to leg on, because you’d hold the horse with the other hand.  They hold the reins so that the horse couldn’t move, or your leg on with the right hand.

What if the rider already had old of … the reins?---Yeah, but the horses can still go to take off and that, so for safety reasons, you normally hold the reins.

Then as you’ve said, the legger would give the rider a slight upward push at the same time as the rider would spring from the ground onto the horse?

---Yes.

And if the legger used too much force in throwing the rider onto the horse, it would be possible for the rider firstly to become unbalanced?---Yes.

And secondly, to fall too far to the offside of the horse?---Yes, it could.

And on occasions, fall off the horse altogether on the offside?---Could, yes.

And so, there is really a fine technique and skill in legging a rider onto a horse, is there not?---Yes, there is.

To ensure the safety of the person who’s being legged onto the horse?

---Yes.”[48]

[48]T 269, L 4-22

80Without taking into account the further evidence which was tendered in documentary form, or provided by Mr Channan and Mr Albanese in cross‑examination, it is clear that there were two possible ways in which the incident occurred in March 2015.  Either Mr Channan was incorrectly legged up, as he had stated in his evidence-in-chief, or he had simply fallen from his mount, perhaps due to the horse moving, but not in circumstances where there was anything unusual or potentially negligent about the manner in which he was assisted to mount the horse. 

81Mr Channan bears the burden of proving that his version is more likely to be correct.  In ultimately making such an assessment on the evidence, it is important to note that this case was conducted on a very narrow basis by the plaintiff.  Absent the court being satisfied of Mr Channan’s version of events, the proceeding would not succeed on liability.

The plaintiff’s credit

82The first credit issued raised concerns Mr Channan’s failure to disclose details of his second job as a chauffeur in WorkCover medical certificates provided between April 2016 and January 2017.[49]  Each of these certificates of capacity had been signed by both Mr Channan and his treating general practitioner, Dr Tang.  In each certificate Mr Channan was required to complete mandatory declaration.  The declaration was in the following terms:

“At any time since the last Certificate of Capacity was provided, have you engaged in:

-  voluntary work, or

- any form of employment or in self-employment for which you have received or been entitled to receive payment in money or otherwise?

§No, I have not

§Yes, I have.”[50]

[49]Exhibit 1

[50]Exhibit 1, p 8

83The form provided a space to record details of any voluntary or other employment.

84In the first certificate forming part of the exhibit dated 15 April 2016 Mr Channan had declared that he had performed work.  Dr Tang had also noted:

“Excessive pain with previous return to work; needs further specialist review (ie Mr Sam Patten).”[51]

[51]Exhibit 1, p 7

85The second certificate forming part of the exhibit dated 30 June 2016 contained a declaration by Mr Channan that he had not done any voluntary or other form of employment.  Dr Tang’s note on that occasion was similar to his earlier certificate, although he noted Mr Channan needed a further specialist review with either Dr Richard Sullivan or Mr Patten.[52]

[52]Exhibit 1 pp 10-11

86The third certificate of capacity dated 3 August 2016 again recorded Mr Channan declaring that he had not undertaken any voluntary or other form of employment.  Dr Tang’s notation as to his capacity remained the same.[53]

[53]Exhibit 1, pp 13-14

87The remaining certificates forming part of Exhibit 1 dated 25 August 2016, 16 September 2016, 14October 2016, 11 November 2016, 12 December 2016, 5 January 2017 and 31 January 2017 all contained the declaration signed by Mr Channan that he had not, during the period following the previous certificate, engaged in either voluntary work or any form of employment or self-employment.[54]

[54]Exhibit 1, pp 16-40

88I should note that in each of the certificates forming part of Exhibit 1, Dr Tang had recorded a diagnosis of “left medial co-lateral strain, medial meniscus injury, reactive depression.”  His assessment of Mr Channan’s capacity noted that Mr Channan was unable to stand/walk, bend, squat or kneel.[55]

[55]Exhibit 1

89When cross-examined by Mr Moulds KC, Mr Channan was firstly asked to explain why he had not noted employment with Star Chauffeured Cars in his WorkCover claim form.  Mr Channan’s response was as follows:

“… I had a few reasons that time.  Do you have an employment at that time.   I thought on that particular day, that was one of them.  Second one I was – my taxation wasn’t ready and I thought myself in two, three weeks time I will be back but I didn’t realise that injury would put me off the saddle for years.”[56]

[56]T 184, L 3-8

90Mr Moulds KC then put to Mr Channan that he was hiding his employment with Star Chauffeur because he thought he would recover and he would keep going with the same arrangement that he’d made in the past, namely Star Chauffeur in cash and Moody’s on the books:

“--- I kept all the payslips, all of them.  Then I was willing to declare them.  I kept them all, I didn’t destroy them.  All these years the payslips been kept and been declared and amended.  Why Taxation Office accept my amendment and WorkCover didn’t accept my amendment that I have another job?”[57]

[57]T 184, L 9-23

91When Mr Channan was specifically cross-examined about work he had been doing as a chauffeur on various dates during 2016, he admitted that he had done the work, but maintained that the insurance company hand changed his case manager and refused to recognise his second job.[58]

[58]T 232, L 4-30

92Mr Channan further agreed in cross-examination that he had not disclosed that he was working as a chauffeur when examined on behalf of the defendant by Associate Professor Sarji Damodaran, consultant psychiatrist, on 12 December 2016.[59]

[59]Exhibit 3

93He also accepted that no mention had been made of his work as a chauffeur when he was examined on behalf of the defendant by Dr Clive Kenna, specialist pain physician, on 29 January 2017.[60]

[60]Exhibit 4

94Initially when the proposition was put by Mr Moulds KC to Mr Channan that he had not reported working as a driver to Associate Professor Damodaran or Dr Kenna, Mr Channan replied:

“I did answer this question before.  Even I didn’t tell my GP, Mr Moulds.  I didn’t tell anyone.”[61]

[61]T 231, L 25 to T 232, L 3

95To the direct question:

“Why would you not have said to them, ‘Look, I’ve been doing some driving, but I need to be medicated to do it.’?---Mr Moulds, first independent doctor I visited for the insurance – that’s after four – less than six week of my accident – I did tell that to dependent doctor whilst in St Kilda Road … that I am driving.  But when I realise that the insurance wouldn’t recognise my driving, even when that particular case manager, Angela Gardiner, has written in here - handwriting that she need to send me the form - they disqualify her, and they send me another case manager straight away. … They refuse to recognise my second job.  Then I realise there’s no need to tell another doctor that I have another job.  They won’t pay me, they don’t want to hear it.”[62]

[62]T 232, L 4-18

96The second issue concerning Mr Channan’s credit was related to his taxation affairs.  The evidence disclosed that Mr Channan’s initial tax returns filed for the 2013 to 2015 financial years, when he was engaged by Star Chauffeurs in addition to working with the defendant, disclosed no income being received from the chauffeur work.[63]  Mr Channan also agreed that he had been required to pay a shortfall of approximately $21,000 after amended assessments were issued in August and September 2017.[64]

[63]Exhibit A, pp 6-16

[64]Exhibit A, pp 56-61

97I note that in respect of the credit issues concerning the WorkCover certificates that Mr Channan, through his counsel, had conceded at the outset of this proceeding that he had been subject to prosecution by the WorkCover authorities which had resulted in a diversion order.  I also note in relation to the failure to disclose the employment as a chauffeur, Mr Channan did provide such a history to Dr John Lange, occupational physical, who examined him on behalf of the defendant’s insurer on 29 July 2015:

“Mr Salim Channan is a 28 year old righthanded gentleman who works as a track rider for Moody Racing.  He has worked for Moody Racing for eight years and is involved in riding horses between 3.45 am and 7.00 am.  He has a second job as a limousine driver, which he has been performing for the last two years.”[65]

[65]Exhibit C

98In my assessment the most significant attack on Mr Channan’s credit related to the surveillance video shown to him during cross-examination.  This surveillance was taken on 1 November and 26 November 2016.[66]  I note that the quality of the surveillance footage when viewed during the hearing via the audio visual link was less than ideal.  I have had the opportunity to view the surveillance material directly from the tendered exhibit and the quality of the recorded footage is far superior than that shown over the audio visual link.

[66]Exhibit 9

99The first portion of the surveillance material was taken on Melbourne Cup Day, 1 November 2016.  Mr Channan is first recorded at 7.14 am driving a Maserati vehicle registered number VHA 755.  He is seen to arrive at the Westin Hotel in central Melbourne at 7.27 am where he appears to walk without any evidence of a limp.  At 8.34 am he parks the vehicle in a lane near the Mantra Hotel where he is observed walking around the vehicle while smoking.  At the time recorded at 8.46 am I observed him to display what appeared to be a slight limp, favouring his left leg.  The surveillance material identifies the Maserati as being operated by Star Chauffeured Cars at 9.04 am. 

100The second portion of surveillance video relates to 26 November 2016 and shows Mr Channan driving a Jaguar vehicle registered number MSTA3.  The recording commences at 8.53 and shows Mr Channan arriving at the Crown Casino at 9.49 am.  He is observed to unroll a red carpet which involved him squatting to his haunches and displaying, to my observation, no limp.  He is then observed at 10.12 am in Williamstown near the West Gate Bridge, and shortly thereafter arrives at a private residence in The Strand, Williamstown, where he awaits another customer.  Once again he was observed at 10.22 am to squat deeply whilst unrolling a red carpet.  He is then observed between10.29 am and 10.47 am to be standing in the front garden area of the property, talking to his potential customer and playing with a small dog.  In this latter activity Mr Channan was observed to rotate and move briskly, also bending whilst playing with the dog.  It is clear particularly from a passage recorded at 10.39 am that Mr Channan is talking to his customer and appears happy and laughing.  At 10.52 am, after loading a passenger, Mr Channan is again observed to squat and roll the red carpet before placing it in the boot.  He then proceeds to pick up another customer from a nearby apartment and proceeds to a drop off point in Albert Park at 11.23 am.  The surveillance footage concludes at 11.45 am with Mr Channan driving the Jaguar motor vehicle on the Tullamarine Freeway.

101At the conclusion of the surveillance material being played before the court, Mr Channan agreed that he was the person shown in the surveillance.  He further agreed with the proposition put by Mr Moulds KC in relation to the second of the surveillance videos that there was no suggestion to an observer of any problem:

“What it shows on this video it looks like normal, yes, Mr Moulds.

And do you agree with me that on the video that when you squat to – and there was an earlier one as well, to either roll out or pick up the ubiquitous red carpet, you’re doing so freely and without any problem to the observer?---Yes, Mr Moulds.”[67]

[67]T 221, L 8-22

102The timing of the surveillance recordings in November 2016 is very significant.  Little more than two weeks after the date of the final period of surveillance Mr Channan was examined by Associate Professor Damodaran, psychiatrist.  In his report to the WorkCover insurer dated 12 December 2016 Dr Damodaran noted that Mr Channan had reported:

“… that he is emotionally quite distraught by the persistent nature of the pain, the marked limitation on his activities and the inability in relation to his overall physical activities.”[68]

[68]Exhibit 3, p 49

103Dr Damodaran later recorded details of his examination, noting:

“Mr Channan came for the interview.  He was walking with the help of a walking stick.  He walked very slowly.”

104Less than a month after the most recent date of surveillance Mr Channan was examined by Dr Clive Kenna, musculoskeletal pain physician.  In Dr Kenna’s report to the WorkCover insurer dated 20 January 2017 he notes Mr Channan reporting complaints of back, left leg and left knee pain.  Under clinical examination Dr Kenna stated:

“He was using a walking stick and the level of hobbling appeared to be excessive.  In that respect, nevertheless, he had a full range of flexion, full range of extension and was able to fully flex. … At the time of my examination, he was using a brace to centralise the patella.”[69]

[69]Exhibit 4, p 72

105Dr Kenna described:

“The whole clinical presentation now seems somewhat implausible with a substantial disconnect between his current clinical presentation and clinical findings, which are essentially almost normal, pertaining to the left knee.[70]

[70]Exhibit 4, p 78

106Additionally, Dr Tang, who had been certifying Mr Channan incapacitated for work at least from April 2016 until the end of January 2017, had recorded in clinical notes that Mr Channan had been using a single point walking stick in August 2016.  This was accepted by Mr Channan in cross-examination.[71]  Mr Channan also accepted that he had probably been using a stick when he attended Dr Tang on 12 December 2016, the same day as he had presented to Dr Damodaran.[72]

[71]T 236, L 11-19

[72]T 236, L 20-31

107Ultimately, having viewed the surveillance video and the evidence given by Mr Channan I am led to a conclusion that I could not rely upon the accuracy, or indeed the truthfulness of his evidence unsupported by some independent corroboration.

The credit of Mr Albanese

108Mr Albanese had been thoroughly cross-examined by Mr Monti KC in relation to the events of 26 March 2015.  He agreed that he had seen Mr Channan fall off the horse.  When asked what he then did, he stated:

“Move the horse out of the way for safety.

… I walked the horse away from the scene so that Salim wasn’t in any danger of being stepped on or trampled by a horse.”[73]

[73]T 320,, L 19-26

109He went on to state that he had walked out of the area until Mr Channan had walked away:

“I didn’t put the horse in the box until Salim had moved out of the way.  I moved the horse forward, probably five, 10 metres out of the area, Salim got up walked across and then I brought the horse back into the box.”[74]

[74]T 321, L 16-20

110Mr Albanese stated in cross-examination that he believed the horse had moved and Mr Channan had lost his balance.  He was unable to say in which direction the horse moved, and maintained that he had consistently stated this:

“… I’ve numerously over the period of two years in my statements, all my conversations I’ve always maintained since day one the horse has moved.”[75]

[75]T 325, L 3-17

111In addition to the evidence given by Mr Albanese, the defendant tendered into evidence file notes of a conference held with him on 14 September 2021, approximately six months prior to this hearing.  There are clearly some details in that file note which do not accord with the evidence given in the hearing, ie:

“It was a wet morning I remember him wearing plastic waterproof pants.”[76]

[76]Exhibit 10, p 119

112Nevertheless the substantive issues of Mr Albanese holding the horse in his left hand and using his right hand to leg up Mr Channan were, in my view, plausible:

“… he’s gone up, he lost his balance, he tried to balance himself and he slipped over the other side.  I do remember the horse moving.

Which way and in what manner did it move?---Maybe it took a step forward … my focus was on the horse, remember the horse hadn’t been ridden and was ready to go with all the commotion it would have bolted.”[77]

[77]Exhibit 10, p 118

113Much of the cross-examination of Mr Albanese attacked his competence, noting that he had commenced in the racing industry having been involved with harness racing rather than thoroughbreds.  This was really an attack on his competency rather than his credit.

Analysis

114The determination of the liability question in this proceeding ultimately depends on the court being satisfied, on the balance of probabilities, as to the accuracy, reliability and indeed truthfulness of Mr Channan’s version of the events of 26 March 2015.

115Given the comments I have made above concerning the credit of Mr Channan, his version of events must be corroborated by some further evidence.  Mr Monti KC in final address stressed the importance of the contemporaneous notation made by the attending ambulance officers as supportive of Mr Channan’s account. 

116The relevant portion of that entry states that Mr Channan:

“… was being assisted up onto the horse … started to go over the other side of the horse which caused those lifting him to pull on his foot twisting his left knee.  PT fell off the horse on the other side…”[78]

[78]Exhibit B

117Precisely the same entry was recorded at the Alfred Hospital later on that same day.

118Mr Channan’s WorkCover injury claim form was also completed on 26 March 2015.  The notation concerning the injury once again makes no mention of Mr Channan being hoisted up with such force as he had stated in his evidence.  That entry simply states:

“Was being assisted onto race horse this morning when fell over the other side but assistant held my left leg … twisted knee.”[79]

[79]Exhibit Q

119In his evidence Mr Channan did not claim to have reported the precise circumstances of injury to anyone at the stables at the time.  It is plain from the evidence that other persons were present with Ms Stephanie Little and Mr Paul Harris both being noted in the claim forms.  I draw no negative inference against either party for failing to call those witnesses, or give an explanation as to why they were not called.  The fact is that there remains a paucity of evidence, other than that given by Mr Channan and Mr Albanese, about the circumstances in which the incident had occurred.

120Mr Moulds KC in final address urged me to conclude that the employer’s claim report completed on 1 April 2015 and signed by Ms Andrea Brown, could only have been completed on the basis of information provided to the defendant at that time.  The version of the incident in that document notes as follows:

“Whilst mounting a horse his keen was jarred when the horse moved.”[80]

[80]Exhibit Q

121I accept Mr Moulds KC’s submission is correct.

122In essence there are two conflicting versions of the manner in which Mr Channan was caused to fall from the horse on the day of the incident.  If he satisfies the court that it is more likely that his version of events is correct, then he succeeds on liability.  If he does not, his claim must be dismissed.

123I accept that Mr Channan was a talented and experienced horseman.  I also accept that falls when mounting race horses are not uncommon, even when an experienced and talented horseman is attempting to mount.

124However, I was particularly impressed by the manner in which Mr Albanese gave evidence before me, particularly noting his emphasis on his need to control the horse at the time of the fall. 

125Insofar as Mr Channan’s evidence was concerned, both in relation to the circumstances of the incident occurring and also the extensive evidence given concerning his post-accident status, has led me to the conclusion that he is prone to emphasise matters supporting his claim, rather than provide and accurate and reliable description of events.

126Further, the departure from the standard of care that could be expected of a reasonable stable hand, on Mr Channan’s version of events, is such that it would be most surprising if no other person present at the stables had been informed of this extraordinary action taken by Mr Albanese.  Indeed the forces that would be required to lift Mr Channan with such force that he describes, could not reasonably have occurred unless Mr Albanese had indeed used both hands to leg Mr Channan onto the horse.  I simply cannot accept, as a matter or probability that this occurred.

127I cannot be satisfied on the whole of the evidence in this case that the version of events given by Mr Channan can be preferred.

128The proceeding must therefore be dismissed.

129I grant leave to the parties to apply in relation to the question of costs.

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