Dodge v Snell - [2011] TASSC 19

[2011] TASSC 19

COURT: SUPREME COURT OF TASMANIA

CITATION: Dodge v Snell [2011] TASSC 19

PARTIES:  DODGE, Kevin John
  v
  SNELL, Simon

FILE NO/S:  430/2007
DELIVERED ON:  21 April 2011
DELIVERED AT:  Hobart
HEARING DATE:  16 – 19, 22, 23, 25 March 2010
JUDGMENT OF:  Wood J

CATCHWORDS:

Torts – Negligence – Essentials of action for negligence – Duty of care – Special relationships and duties – Other cases – Breach of duty owed to fellow jockey.

Wyong Shire Council v Shirt (1980) 146 CLR 40; Rootes v Shelton (1967) 116 CLR 383; Kliese v Pelling [1998] QSC 112, discussed.
Civil Liability Act 2002 (Tas), ss11, 12.
Aust Dig Torts [44]

Torts – The law of torts generally – Volenti non fit injuria – Three elements to be proven – Effect of Civil Liability Act 2002 (Tas).

Carey v Lake Macquarie City Council [2007] NSWCA 4; Colin Ball v Transport Commission, B52/1991, discussed.
Civil Liability Act 2002 (Tas), ss15, 16.
Aust Dig Torts [7]

Torts – Statutes, regulations, etc – Applicability and effect in actions for negligence – Generally – Civil Liability Act 2002 (Tas), s19 – "Recreational activity" – Professional jockey injured – Interpretation – Natural meaning.

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Falvo v Australian Oztag Sports Association (2006) NSWCA 17; Fallas v Mourlas [2006] NSWCA 32, discussed.
Civil Liability Act 2002 (Tas), ss15, 18, 19, 20.
Acts Interpretation Act 1931 (Tas), ss8A, 8B.
Aust Dig Torts [87]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Method of assessment – Generally – Civil Liability Act 2002 (Tas) – Award of damages for gratuitous services – General damages – Reference to awards in other jurisdictions.

Van Gervan v Fenton (1992) 175 CLR 327; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, applied.
Civil Liability Act 2002 (Tas), ss28, 28B.
Aust Dig Torts [32]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read and R Phillips
             Defendant:  P L Jackson
Solicitors:
             Plaintiff:  Phillips Taglieri
             Defendant:  Wallace Wilkinson & Webster

Judgment Number: [2011] TASSC 19
Number of paragraphs: 499

Serial No 19/2011
File No 430/2007

KEVIN JOHN DODGE v SIMON SNELL

REASONS FOR JUDGMENT WOOD J

21 April 2011

On 28 January 2007, the plaintiff, Kevin Dodge rode Oceano in the Moorilla Stakes at Elwick Racecourse. The defendant, Simon Snell, rode The Mighty West. Mr Snell drew the outside barrier. Soon after the start of the race Mr Snell started to cross to the rail. The rail was the shortest run to the finish. He safely crossed in front of two horses. Having done so he then had five horses to his inside with 3 at the front and two, including Mr Dodge's mount, racing close behind. The field of five horses on his inside was tightly bunched and racing close to the rail. To reach the rail and maintain his forward position, Mr Snell had to cross in front of the three horses in the lead. The first of the three horses was Colonel Parker ridden by jockey Brendan McCoull. Mr Snell shifted inwards to cross in front of Colonel Parker. Mr McCoull on Colonel Parker shifted inwards. Further back and close to his inside was Tal Jack ridden by Kane Bandy. Tal Jack clipped heels with Colonel Parker and fell. Mr Dodge was directly behind Tal Jack and could do nothing to avoid Tal Jack falling in front of him. His horse, Oceano, collided with Tal Jack catapulting Mr Dodge forward onto the ground. Oceano fell forward landing on top of Mr Dodge. Mr Dodge was injured and as a consequence his career as a professional jockey was brought to an end.

Mr Dodge brings a personal injuries claim for negligence against Mr Snell. He claims that it was Mr Snell's negligent riding of The Mighty West that caused his horse to fall. The particulars of negligence are:

"(a)failed to keep a proper look out;
(b)rode his mount inwards when it insufficiently clear for Colonel Parker to enable the manoeuvre to be safely completed;
(c)Failed to keep clear of Colonel Parker;
(d)Rode his mount inwards when insufficiently clear of Colonel Parker and when he knew or reasonably to have known that in doing so he was exposing other horses and riders to a risk of injury."

The essence of the plaintiff's case, described in counsel's opening, was that Mr Snell rode his mount in towards the rail when he was insufficiently clear of the horses to his inside; this caused a cramping of those horses and the falls resulted.

The claim is disputed on three bases:

(1)The defendant maintains that he did not breach his duty of care to the plaintiff.
(2)If he did breach that duty, he is not liable for it because the plaintiff voluntarily accepted the risk of that breach.
(3)By reason of the Civil Liability Act 2002 ("the CL Act"), s20, the defendant is not liable for that breach.

Mr Snell does not dispute that he owed the plaintiff a duty of care, the breach of which would make him liable for the harm suffered by Mr Dodge. The extent of the duty of care is in issue. It is conceded that Mr Snell's conduct during the race was a cause of Mr Dodge's fall and resulting injuries. He concedes an error of judgment but denies negligence.

In maintaining that he did not breach his duty of care Mr Snell denies the particulars of negligence. An assertion of contributory negligence was made but abandoned at trial.

Before dealing with the first question of whether the defendant breached his duty of care to Mr Dodge I commence with an overview of some statutory reforms regarding the law of negligence. I leave a more detailed consideration of the law regarding breach of duty until after consideration of the facts.

Negligence and the Civil Liability Act: an overview

Foreseeability, standard of care, breach of duty, causation and remoteness of damage are addressed by the CL Act. The CL Act is a response to recommendations for reform of the law of negligence contained in the Final Report by the panel appointed by the Commonwealth and State Governments to review the law of negligence. (See Fallas v Mourlas [2006] NSWCA 32, par[45], and D Ipp, Review of the Law of Negligence: Final Report (2002) Canberra, Canprint Communications). Comparable reforms are made in other jurisdictions in Australia.

The CL Act carries into effect various reforms to aspects of the law of negligence regarding civil liability for damages for personal injury or death or damage to property. The Act has application to causes of injury that arise after the commencement of the Act[1] with the exceptions provided for in the CL Act. The CL Act does not apply to work related injuries as specified[2], and parts of the Act do not apply in respect of civil liability relating to injury to which Part III of the Motor Accidents (Liabilities and Compensation) Act 1973 applies.
[1] The CL Act in its present form commenced at various stages by amendments to the original Act. For example, the Civil Liability Amendment Act (No 46 of 2003) commenced on 4 July 2003 and contained a number of substantial provisions which fall for consideration in this decision.
[2] The CL Act does not apply to civil liability relating to an injury to which Division 2 of Part X of the Workers Rehabilitation and Compensation Act 1988 applies (CL Act, s3B).

Some of the reforms implemented by the CL Act relating to the defence of voluntary assumption of risk, and cases involving "dangerous recreational activities", arise for consideration in this case. These are substantial issues for consideration and I have the benefit of submissions from counsel with regard to these matters.

As noted, questions of breach of duty and causation are now governed by provisions in the CL Act. Provisions relating to causation deal with substantive principles and effect significant changes to the law: ss13 and 14[3]. Causation does not arise as an issue in this trial. Breach of duty is a central issue in this trial. For the purposes of this case there are few, if any real, differences between the common law principles and the statutory provisions regarding breach of duty. Indeed, counsel's submissions regarding breach of duty were confined to the common law and the classic pronouncement by Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40.
[3] For an analysis of the differences between the common law principles of causation and the CL Act see Adeels.

Even though there are few, if any, real differences between the common law and the CL Act regarding breach of duty, the proper approach is to commence a consideration of negligence by having regard to the CL Act first (Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420).

The CL Act, s11, provides:

"11 General principles
(1) A person does not breach a duty to take reasonable care unless –
(a) there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the potential net benefit of the activity that exposes others to the risk of harm.

(3) For the purpose of subsection (2)(c), the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible."

Section 12 provides other principles:

"12 Other principles
In a proceeding relating to liability for breach of duty –
(a) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(b) the subsequent taking of action that (had the action been taken earlier) would have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute evidence of liability in connection with the risk."

It may be noted that s11 discards the common law test for scope of liability for foreseeable risk of "not fanciful or far-fetched". Substituted is a test of a risk that is "not insignificant", setting the threshold a little higher for plaintiffs.

Section 11 substantially restates the common law test for breach of duty of care stated by Mason J in Wyong Shire Council v Shirt (supra) (Council of the City of Greater Taree v Wells (2010) NSWCA 147 Beazley JA pars[33], [55], Waverley Council v Ferreira [2005] NSWCA 418, par[45]) and presupposes the existence of the law of negligence (Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263 per McColl J par[173][4].
[4] The panel recommended that the "negligence calculus" be embodied in the legislation. See [7.17] and recommendation 28.

Section 11 specifies the matters the court is to consider, "among other relevant things" in determining whether a reasonable person would have taken precautions against the risk of harm[5]. It ensures that the "balancing" exercise be undertaken and that considerations that weigh against the taking of precautions be considered and not overlooked (see CL Act, s11(2)(c) and (d))[6]. It is worthwhile to bear in mind that the whole purpose of the provision is to "encourage judges to address their minds more directly to the issue of whether it would be reasonable to require precautions to be taken against a particular risk" (par7.17 of the Final Report, and Waverley Council v Ferreira (supra), per Ipp JA at 27, Spigelman CJ and Tobias JA agreeing). This provision has the unambitious and arguably unnecessary objective of seeking to ensure the correct application of the Wyong formula.
[5] It is intended to address the danger that a court will conclude that because a risk can be described as 'not insignificant' it would be negligent not to take precautions against it: (par7.16 of the Final Report).
[6] Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263 at 443.

Other conflicting responsibilities not mentioned in subs(c) and (d) of the CL Act s11(2) are still to be taken into account as subs(2) is not exhaustive: Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited (supra), McColl JA at 173 (Campbell JA and Sackville AJA agreeing). I will return to conflicting responsibilities later when dealing with principles regarding breach of duty arising from the sporting context.

Did the defendant breach his duty of care?

Facts that are not in dispute

Many of the facts are not disputed. The race was filmed from various angles and the films were available at the trial. However, there are areas of dispute and contention relating to matters of detail bearing on liability. It is convenient to set out the uncontentious facts that are accepted, and then identify the factual issues that need to be decided relevant to the question of negligence.

The unchallenged facts regarding the incident are as follows.

The race: Wrest Point Guineas Day Race meeting at Elwick Racecourse, Moorilla Stakes, Race 8.

The track: 1200 metre race (six furlongs) with the turn at the 600 metre mark. Until that turn the track is straight and there is no disadvantage to jockeys in not being close to the rail.

The horses: field of nine horses.

Barrier positions: The allotted barrier positions of the horses in the race were as follows:

"1

2

3

4

5

6

7

8

9

Speechmaker Tal
Jack Colonel
Parker Taxi
Tom King's
Scholar Oceano Riceman A
Dreamer
The
Mighty

West

Mertens

Bandy

McCoull

Borrett

Didham

Dodge

Smith

Pires

Snell"

It can be seen that Mr Dodge rode Oceano in starting position barrier 6. Mr Snell rode The Mighty West starting in outside barrier number 9.

Their race plan: Mr Snell intended to race forward of the field. Mr Dodge had instructions from the trainer of Oceano, George Blacker (pp53 – 54). He told Mr Dodge that Oceano missed the start in the previous race, meaning that it was slow getting out of the barriers. George Blacker said to make sure that the horse "jumped well", to make sure it did not "give away start" at the beginning of the race and then to "settle back in the field a little bit and save its energy for home straight". Mr Dodge's plan was to track Rice Man as he believed it would be the hardest horse to beat (pp54 – 55).

The horses' positions just before the fall: The falls happened at approximately the 200 metre mark. Mr Snell had crossed jockey Pires on A Dreamer and jockey Smith on Riceman. The position of the horses to his inside were as follows. The field was bunched close to the rail. The field formed loosely staggered two rows front to rear with four horses in the lead. From the rail:

Speechmaker (Peter Mertens)
Tal Jack (Kane Bandy)
Colonel Parker (Brendan McCoull)
The Mighty West (Simon Snell) on the outside.

The horses behind were as follows:

Taxi Tom (Jodi Borrett) was to the rear of Speechmaker
Oceano (Kevin Dodge) behind Tal Jack
Riceman (Glenn Smith) behind and to the outside of The Mighty West. Kings Scholar was behind the field.

The jockeys: Mr Dodge and Mr Snell were experienced professional jockeys. Both had had experience racing interstate and both had over 1,000 race starts.

Mr Snell completed his apprenticeship in about 1996 and he was licensed as a race jockey from then until 2009. In the period April 2004 – April 2009 he had 1,340 race starts. Mr Dodge completed his apprenticeship approximately 20 years ago. In the period August 2002 to April 2007 he had 1,036 starts.

The rules: A rule of Australian Racing requires that jockeys endeavour to win:

"AR.135. The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field."

AR.136 prohibits crossing another horse so as to cause interference:

"AR.136.   (1)   If a horse –
(a)       crosses another horse so as to interfere with that, or any other horse, or
(b)       jostles, or itself, or its rider, in any way interferes with another horse or its rider, unless such jostle or interference was caused by some other horse or rider –
such horse and any other horse in the same nomination may be disqualified for the race."

If a placed horse or its rider causes interference to another placed place then the stewards have discretion as to the finishing results of the race: AR 136(2).

AR.137 (a) provides:

"Any rider may be punished if, in the opinion of the Stewards,
(a) He is guilty of careless, reckless, improper, incompetent or foul riding."

These rules ensure the fairness of the race and that each horse has the best opportunity to win or to achieve the best possible place.

A race advantage: There is a clear advantage to a racing position close to the rail. Mr Dodge gave evidence that in a race over a distance of 1,200 metres, a position one horse off the rail would add a distance of three to four horse lengths compared to a position on the rail. A horse racing a position two horses off the rail has a six to eight lengths disadvantage compared with a horse racing on the rail (p56).

The two lengths policy: There was quite a deal of evidence about a requirement referred to by a number of the witnesses as the two lengths "rule". Although various descriptions were given of it, the definitive statement of it was provided by Mr Gleeson (at p318) as the length of a horse standing still from the tip of its nose to its tail, about eight feet or 2.4 metres, and another length of daylight, so "2.4 metres times two". Mr Gleeson went on to note that the definition is clear and people who are involved in racing do not have any difficulty in interpreting the two lengths policy during the running of a race.

The two lengths policy was referred to by some of the jockeys as a two lengths rule. Mr Gleeson described it as a policy, not a rule, and that is accepted as a correct characterisation.

The policy enables jockeys to avoid breaching the careless and reckless riding rule and the prohibition on causing interference with other horses. The entitlement of other horses to their position and to race without interference was sometimes described as their "rightful running". When horses jump from the barrier they have a path forward and jockeys are entitled to race in that path, considered the jockey's rightful running (Mr Gleeson p321). Other jockeys are not permitted to shift ground inwards or outwards unless they are sufficiently clear of other horses so as not to cause interference with other horses and their "rightful running". The two lengths policy has been developed in order to assist riders so that they know when they can shift ground, either inwards or outwards, without causing interference to horses following them in the field.

The one horse length of daylight referred to by Mr Gleeson is judged by reference to the horses in a standing position. It is useful to bear in mind what occurs to this one horse length of daylight during a race when the horses are striding out in a galloping action. The horse's hooves extend to the rear beyond the rump of the horse and forward of the horse's shoulders. When two horses are galloping one behind another and the hooves are fully extended, then the rear hooves of the horse in front and the front hooves of the horse behind both impinge on this one horse length of daylight. The two lengths policy allows for the galloping action and, if judged correctly by the jockey in front, will mean that he or she does not impede the running of the horse behind. If not clear, interference can occur and there is a risk that the horses can clip heels and a fall can result with the risk of serious injury.

The policy has been adopted Australia-wide. The evidence established that jockeys are advised of the importance of the policy early in their apprentice training and reminded of the policy at race meetings. At major races and in the course of work as a jockey, the race stewards speak about the policy.

What happened: After the start of the race the three horses closest to the rail ridden by jockeys, Mertens, Bandy and McCoull drew closer to the rail and to each other. They were racing on a true and straight course. The tightening of the field (seen in the rear view of the race photographs 2, 3 and 4) is due to jockeys slotting into positions with Mr Dodge and Ms Borrett coming back behind the other runners, giving Mr Smith room to move closer to the inside of the track alongside Messrs Mertens, Bandy and McCoull. As a consequence there was a tight bunch of horses racing at an early stage of the race and while there was no pressure on any of the horses and all horses had their rightful running there was little room to manoeuvre from side to side.

Mr Snell crossed clear of Mr Smith and Mr Pires. On an inward path he got closer to Mr McCoull and as he did so he placed the field to his inside under pressure and in response there was further tightening. Mr Snell was intending to try and get to the rail and intending to cross in front of Mr McCoull. Mr Snell rode inwards towards Mr McCoull. Mr McCoull shifted inwards to avoid Mr Snell. Before Mr Snell had crossed in front of Mr McCoull to any extent, Mr Snell straightened up and rode on a forward path.

The horse Tal Jack fell. Mr Dodge in the position behind Tal Jack was unable to avoid Tal Jack.

The falls: Tal Jack ridden by Kane Bandy fell. Mr Dodge had nowhere to go because the field was so tightly bunched. Tal Jack fell head first and Mr Dodge's mount, Oceano, collided with Tal Jack. Oceano fell throwing Mr Dodge forward onto the ground. Oceano fell forward and in the momentum of the fall rolled over the top of Mr Dodge.

There is no dispute that Tal Jack fell as a consequence of Colonel Parker shifting inwards. There is no dispute that as a consequence of Colonel Parker shifting inwards Tal Jack clipped heels with Colonel Parker and fell. There was other evidence indicating that after Colonel Parker shifted inwards there was additional contact with Tal Jack and/or contact with Speechmaker:

· Tal Jack's shoulders made contact with Colonel Parker's hindquarters.
· Tal Jack tightened onto, and made contact with Speechmaker, turning Speechmaker slightly outwards and then Tal Jack lost its rightful running, appearing to "clip heels" and fall.

A finding about the extent of all of the contact with Tal Jack or contact with Speechmaker is not necessary.

Another matter that does not need to be resolved relates to a suggestion that Colonel Parker may have been bumped, presumably by Mr Snell's mount as Mr Snell's mount shifted inwards. In light of the areas of dispute and findings made, this issue is immaterial.

The risk of injury resulting from a fall: When considering the risk of injury resulting from a fall it should be borne in mind that the average weight of a horse is approximately 500 kilograms. Mr Dodge stated that a good race horse can travel at speeds around 65 kilometres an hour. Horses race side by side in close proximity to each other.

The plaintiff's case

It is the plaintiff's case that when Mr Snell started to cross in front of Mr McCoull he was well short of the two metre clearance required by the policy and he was only a length to a length and a quarter at most in front. That was not a widening gap. Jockeys McCoull and Bandy called out, warning Mr Snell that Mr McCoull had another horse on the inside. Mr Snell moved inwards, ignoring the warning, and thereby causing interference to Mr McCoull's path or "running". Mr McCoull was forced inwards. Mr Snell realised the situation and straightened up, but by then the interference with Tal Jack had occurred.

The defendant's case

The defendant's case is that when he started to cross in front of Mr McCoull he looked and thought he was two lengths clear. He started to cross. In this regard he made an error of judgment and he was not two lengths clear at the time he crossed. However, it was an error of judgment falling short of negligence. Mr Snell did not realise Kane Bandy was on the inside of Mr McCoull. Mr Snell straightened up giving Mr McCoull room to move outwards. Despite that opportunity Mr McCoull's horse strode inwards. Mr McCoull strode in at least one stride more than he needed to, bearing in mind that Mr Snell had straightened up and eased off the pressure. Furthermore, Mr McCoull's horse was over-racing and not responding to his jockey and this may have contributed to the clearance not being as great as it would have otherwise been. Further, it was the extra stride or strides that caused the interference with Tal Jack and the fall that resulted, and if not for the extra stride or strides, the incident might have been avoided.

The defendant's case is that Mr Snell's error of judgment was the kind of error that jockeys frequently make and he made it having taken reasonable care and not because of a lack of reasonable care.

Factual issues that have resolved: Mr Snell caused Mr McCoull to shift inwards

A number of issues were explored during the trial but then not pursued during the final stages of the trial.

During cross-examination of Mr Dodge there was some lengthy enquiry regarding the tightening of the field and whether other riders had created pressure of a kind that would cause interference to Mr McCoull and cause him to shift inwards. There was detailed cross-examination of Mr Dodge about whether stills taken from the films of the race revealed that the progressive bunching of the field was caused by factors other than Mr Snell's riding. Other possible factors advanced during this stage of the trial were, whether the three horses next to the rail were drawing too close together and whether Mr Smith's mount closed in on Mr McCoull and Mr Bandy, and placed Mr McCoull under pressure and pushed him inwards.

These factors were refuted by Mr Dodge. Mr Dodge gave evidence that while the three horses ridden by Messrs Mertens, Bandy and McCoull had moved closer together and closer to the rail, they were heading on a straight course. Mr Smith's horse had moved towards Mr Bandy's horse with Mr McCoull's horse well in front of both of them but in between. Mr Dodge explained that Mr Smith's riding did not place Mr Bandy's horse under pressure because he was well behind Mr Bandy's horse, approximately three-quarters of a length behind. In order to push another horse inwards, you have to be on at least level terms or in front of that horse. This meant that if a bump had occurred it would have involved Mr Smith's horse's shoulder contacting Mr McCoull's horse's rump, and this did not pose a risk of a fall[7].
[7] Photograph 6 reveals that Mr Snell was laterally closer to Mr McCoull than Mr Smith was to Mr McCoull, and Mr Snell was on an inward path.

As both Mr Bandy's mount and Mr Smith's mount were either side of Mr McCoull but about three quarters of a length behind Mr McCoull, they did not put Mr McCoull's mount under pressure in the sense that a collision with either would not be problematic. It is the position of Mr Snell's horse forward of Mr McCoull that placed Mr McCoull under pressure.

Mr Dodge's evidence was persuasive and it is accepted by me. These issues as contributing factors were not pursued in cross-examination of the other jockeys or of Mr Hadley or Mr Gleeson. Mr Snell's evidence did not suggest they were valid considerations. Counsel for the defendant did not suggest in his closing address that there was any contributing factor causing Mr McCoull to deviate from his racing line, other than the pressure he received from Mr Snell.

On occasions during the plaintiff's case it seemed that there was an issue about whether or not Mr Snell, in riding towards Mr McCoull in order to cross to the rail, placed actual pressure upon Mr McCoull causing him to shift inwards and deviate from his path, or whether Mr McCoull's evasive response was pre-emptive, and he shifted before he needed to. There was compelling evidence of actual pressure that required evasive action:

·     evidence of Mr McCoull was that Mr Snell "tightened my horse taking me onto the other runners".
·     Mr Gleeson's evidence based on the videos of the race was that Mr Snell's horse shifted "into his (Mr McCoull's) running".
·     Mr Snell gave evidence and admitted that he had ridden his mount inwards and that had sent Mr McCoull's horse on an inwards path.

During closing submissions it was conceded by counsel for the defendant that there was a connection between the defendant's conduct in the race and Mr Dodge's fall. It is plain that there is no issue that Mr Snell rode his mount so that Colonel Parker was placed under pressure, was taken inwards and deviated from his racing line.

I add that, regardless of the concession made, I find that Mr McCoull's mount deviated from his racing line and turned inwards as a consequence of the pressure from Mr Snell. It was the proximity of Mr Snell's mount forward and laterally to his outside that caused him to lose his rightful running. While Mr Snell had not yet crossed Mr McCoull or even partially crossed in front of McCoull, his horse was drawing closer and on an inward path and his position forward of Mr McCoull placed Mr McCoull under actual pressure to shift away.

The factual issues

Most of the factual issues in this case on liability could be simplistically categorised as matters of detail of what happened in the moments before the fall. A list of these factual issues is as follows:

·     Whether Mr Snell had a proper look before shifting towards Mr McCoull.
·     The clearance, with regard to the two lengths policy, between Mr Snell's mount and Mr McCoull's mount as Mr Snell's mount began to shift inwards.
·     Whether Mr McCoull's mount and Mr Snell's mount were maintaining the same pace or whether Mr Snell was "going away".
·     Whether Messrs McCoull and Bandy called out to Snell as a warning not to cross.
·     What Mr Snell saw regarding his proximity to Mr McCoull and other jockeys before and as he shifted inwards.
·     Whether Mr McCoull's mount was "over-racing".
·     Whether once Mr Snell straightened up Mr McCoull had an opportunity to ease the pressure.

Another issue of a different kind concerns:

· The purpose of the two lengths policy and whether the purpose of it is safety or preventing interference.

The types of evidence

The plaintiff's case regarding liability consisted of the evidence of jockeys Mr Dodge, Mr McCoull and Mr Bandy, and expert witnesses Mr Gleeson and Mr Hadley. Mr Snell was the only witness for the defendant. I will consider the evidence of the witnesses in some detail. The video footage of the race taken from four different camera angles was tendered during the plaintiff's case. Two videos are taken side on to the track, one from the rear of the field and one from the front. A slow motion version of all films was tendered. Stills taken from the videos were also tendered and referred to as photographs. A steward's inquiry was chaired by Mr Hadley and a transcript of that inquiry was provided.

The Steward's inquiry and transcript

The transcript of the inquiry was provided. It runs for 15 pages. The inquiry was held on 10 February 2007. Mr Dodge had only recently been discharged from hospital. The format of the inquiry was relatively informal. There were interruptions to the proceedings so that jockeys could race. An aspect of Mr Snell's evidence was not transcribed due to an interruption caused by the radio. Jockeys Dodge, McCoull and Snell gave evidence. Mr Bandy was not available. The inquiry commenced with Mr Dodge giving a brief account of the incident. The Chairman then sought an account from Mr McCoull and Mr Snell. These three accounts were all brief. Early in the proceedings the videos of the race were played. The jockeys viewed the videos and then provided an account based on what they had seen in the videos. There was some further questioning by the Chairman.

To a large extent the evidence that the three jockeys gave during the trial was consistent with the evidence they gave in the inquiry with issues more amply dealt with at the trial. It is not necessary or helpful to recount all the evidence given at the inquiry. In summary, it can be said that there was a focus on the movements of Mr Snell's mount and Mr McCoull's mount in the moments before the fall, involving the pressure applied by Mr Snell, whether he "carried in" Mr McCoull's mount, and whether once Mr Snell straightened his mount, Mr McCoull could have straightened up earlier avoiding striding in as far as he did. There was also consideration given to whether McCoull's mount "over-raced". Some reference will be made to aspects of the evidence given during the inquiry when reviewing the evidence given by the jockeys at the trial.

The finding of careless riding

At the conclusion of the inquiry, Mr Snell was charged with careless riding under AR 137. It is noted in this context that careless riding is the least serious charge that can be brought under rule 137(a).

Mr Snell reserved his plea. He was found guilty of the charge and suspended for four race meetings. There was evidence that Mr Snell did not appeal.

The finding of careless riding made against the defendant as a result of the Stewards' inquiry does not assist the plaintiff in proving that the defendant was negligent. It is no more than a finding by a tribunal based on the evidence before it, that the defendant has breached a rule of racing. In a similar fashion, a finding by Mr Hadley that Mr Snell breached the two lengths policy does not advance the plaintiff's case. An assessment of whether Mr Snell breached the two lengths policy must be based on the evidence in this trial. Furthermore, even if I determine upon the evidence before me that Mr Snell did not comply with a rule or policy of racing that non-compliance does determine the issue of negligence (Rootes v Shelton (1967) 116 CLR 383, per Kitto J at 389, Barwick CJ at 385; Kliese v Pelling [1998] QSC 112, per Chesterman J, at 9).

The experts

Mr Gleeson and Mr Hadley gave evidence based solely on what they had seen on the videos of the race. They were both able to discern movements of the horses, and, to some extent, the jockeys as well that were difficult for a non expert to detect. They were able to draw inferences based on these subtle movements. While, generally speaking, a witness cannot give evidence of what a video shows because it speaks for itself, the interpretation by Mr Gleeson and Mr Hadley went beyond a descriptive account of what was plain to any observer. Their evidence is admissible as they were "people with experience and a practised eye" who were able to detect difficult to see and subtle movements, and attach a certain significance to those movements that would be lost on a lay person: Appo v Stanley [2010] QSC 383 at par[51], Flanders v Small [2000] QDC 461, at pars[13] – [14]; Chesterman J in Kliese v Pelling at 2; and generally see Beswick v Tamarack Pty Ltd [2009] TASSC 109, at [109].

Kevin Dodge on Oceano

Mr Dodge gave evidence about his observations as he was riding in the race, and also evidence about what was shown on the videos and frames that were taken from the video.

Mr Dodge gave evidence that his mount started well. He eased back in and got to nearly one horse off the fence, with Rice Man in front and to his outside (54 – 55). He saw The Mighty West being ridden along to try and go forward. He saw Simon Snell riding his mount forward and inward towards the fence. Mr Dodge had about four to five horses ahead of him. Mr Dodge was tucked in behind and to the inside of Brendan McCoull's mount nearly behind Tal Jack. Mr Dodge described what happened as Simon Snell's horse was coming across. The field kept on getting tighter and tighter in front of him. He could see it was getting too tight. The bunching was so severe that there was not room for all the horses to be there, and he could see that unless the pressure was eased so the horses had enough room to gallop, something was going to happen. As the field progressively bunched and tightened his view of Mr Snell became obscured because of his position.

He had a glance to his inside and outside to see if he had anywhere to go because the bunching was getting too severe. He explained that at this stage of the race, 200 metres out of the barriers, the horses race at approximately 40 – 45 kilometres an hour. He had horses to his inside and outside. He heard Kane Bandy and Brendon McCoull both calling out to Mr Snell "keep out, keep out" because Mr Snell was coming across and he was not two or two and a half lengths clear to give all the horses room to gallop.

The next second Tal Jack fell directly in front of him.

During the race Mr Dodge could not tell whether Brendan McCoull's mount was over-racing as he was behind the horse. He had observed Colonel Parker racing lots of times prior to 28 January 2007. Mr Dodge had never observed Colonel Parker to over-race (p96). Mr Dodge described "over-racing" as a horse fighting the rider and when the jockey pulls on the reins to slow the horse down, the horse does not respond and will resist by throwing its head profusely or shake its head from side to side. Mr Dodge had viewed the video of the race and he had seen Colonel Parker's head "come up" a little bit (p97). Mr Dodge saw Colonel Parker open its mouth a little bit which would be consistent with a response to the jockey trying to slow the horse. He gave evidence that he did not believe that the horse was over-racing.

Mr Dodge was cross-examined about the jockey's obligation in Mr Snell's situation. He agreed that you have to look if you are going to move inwards and it is necessary to make a judgment about whether you are sufficiently clear to move in. He also agreed that it is a judgment that has to be made in a very, very short space of time. Mr Dodge pointed out that jockeys are trained to make those judgments.

Mr Dodge was cross-examined about frame 8 and what it shows about the location of Kane Bandy's mount. His evidence was that Mr Bandy was about half to three-quarters of a length inside Mr McCoull's horse. Mr Dodge gave further evidence regarding this frame and stated that Mr McCoull is going in because Mr Snell's heels are in front of him. "If Brendan McCoull was to keep a straight course he would clip Simon Snell's heels at that stage and fall himself" (p169). He was challenged about that, and it was put that Mr Snell was "outside" Mr McCoull, and Mr Dodge stated that he was "only just". He maintained that Mr McCoull's horse is in a position where he is "getting close" to clipping the rear heels of Mr Snell's horse.

It was suggested to Mr Dodge that he did not hear any calling out by Mr McCoull or Mr Bandy to Mr Snell because it was a windy day and that made it difficult to hear calling out. Mr Dodge did not agree that it was difficult to hear. Mr Dodge heard them both call out "stay out Snelly, stay out Snelly" or "keep out".

Kevin Dodge's evidence at the inquiry

After seeing the video of the race during the inquiry Mr Dodge noted:

· Jockey Snell has ridden inwards to try and cross Mr McCoull and that he was "not clear" of Brendon McCoull.
· While he (Snell) did "pull off" he (McCoull) had already started the shift inward and it was "too late".

It is noted that during the inquiry Mr Dodge did not mention any calling out by the jockeys before the incident. It is also noted that at this stage Mr Dodge, as a consequence of his injuries, was in "a lot of pain" and "on a lot of medication" for pain relief.

Brendon McCoull on Colonel Parker

Brendan McCoull described Mr Snell racing on the outside. He had crossed down to the inside, "tightened my horse and taken me in onto the other runners" (p205). Mr McCoull gave evidence that he saw him coming and, "I called out to let him know that (a) I was there and (b) there were horses on my inside." He gave evidence that he could not recall the exact words he used – whether he called out just "Simon" or "inside". Mr McCoull's evidence was that after calling out he could not recall any reaction from Mr Snell, "I think his horse sort of kept coming inwards and probably pushed me in marginally still".

When challenged in cross-examination about whether he had called out to Mr Snell he was definite that he had, and he believed Kane Bandy had called out as well. He went on to explain why it is common for jockeys to call out (p213):

"It's something that I always do if a horse is looking like it's going to interfere with you, especially if you have other runners on your inside and you've got an obligation to let the other rider know that's coming across that they'll – you have horses on your inside 'cause sometimes if a rider on your outside might not know how many horses you have on your inside they might just see the horse itself and believe they can push me in a horse or so when they're not actually able to do so."

Mr McCoull gave evidence that Mr Snell's mount was well inside two lengths and only about a length in front because his horse's rump was probably at or just forward of Mr McCoull's mount's shoulders. Mr McCoull described restraining his horse because it looked like Mr Snell was not going to stop: "I've tried to ease my mount back in a straight line so he's able to actually cross and clear and not cause any interference" (p206).

Mr McCoull was shown the film of the race during his evidence and described Mr Snell's shift inwards: Mr Snell's horse was on an inward path and "coming across onto my horse, taking it in a fraction onto Kane Bandy's horse", Tal Jack.

Mr McCoull stated that his horse was not over-racing in the sense of fighting the restraint. Mr McCoull was shown a slow motion film and head-on view of the race and he was asked to identify the moment when his mount's head comes up (24:18). The significance of a horse tossing its head is that it can be a sign that the horse is fighting the restraint. Mr McCoull stopped the film to show when he was restraining his horse. The film shows the horse raising its head but it does not toss its head about at all. Mr McCoull explained that the reason the horse raised its head was because he restrained him because Mr Snell, on his outside, was coming across. Mr McCoull explained that "over-racing" does not mean a situation where a horse is eased back because of pressure from outsiders but "because the horse is racing keener than you would otherwise normally race without getting interference" (p217).

During cross-examination Mr McCoull was asked about the distance between Mr Snell's mount and his mount with reference to the two lengths policy. He was challenged about his evidence of the possibility of rump to shoulder contact. He was shown photographs 17 and 18 and he agreed that at that stage there was no possibility of such contact, and that the horses were further apart than that. Mr McCoull drew attention to the fact that those photographs showed that, at that point, Mr Snell was only one and a quarter lengths clear as opposed to two lengths.

Mr McCoull noted photographs 17 and 18 showed the strides of the two horses overlapped and that he was inside the heels of Mr Snell's mount although not very far. He explained that the point where you have front legs and back legs around the same area is most dangerous in terms of the horses "clipping heels" and that is where you are likely to be brought down.

The evidence given by Brendon McCoull at the inquiry

Mr McCoull stated that as Simon Snell moved forward and came across he took Mr McCoull in a bit and there was not any "room for error". Mr McCoull stated that he tried to ease out of the situation but he just was not able to ease his horse back sufficiently and he was "carried inwards" by Mr Snell's horse.

Mr McCoull accepted that it was possible that after he was carried in by Mr Snell, Mr Snell relieved the pressure and Mr McCoull's horse probably kept carrying in for a stride.

Mr McCoull was asked about whether his horse was over-racing, at 9, transcript of inquiry:

"MR TYSON:   … Mr McCoull was your horse over racing or was his head carriage due to you taking hold at the time?
MR MCCOULL:         I believe, like probably a bit of both, I've elected to take hold and he didn't come back underneath me as on the tape
MR TYSON:    So it was a result of you taking hold in the first place, not the fact that you over raced in the first place that his head carriage became high and he opened his mouth?
MR MCCOULL:         I would say that's fair."

It is noted that during the inquiry Mr McCoull did not mention that he had called out to Mr Snell.

Kane Bandy on Tal Jack

Kane Bandy gave evidence that he was racing about three quarters of a length to a length behind Mr McCoull's mount and on his inside. He gave evidence of his observations at the critical stage:

"Right. Now you've mentioned pressure from the outside what did you see or hear?……Initially I couldn't see the horse racing outside Brendon because he was racing diagonally across from me, he was blocking my view, but I did hear Brendon call out twice and – which made me become alert that there was obviously a horse coming across and at the last minute I was – it came into my vision and I called out myself and no sooner had that happened the horse fell."

Mr Bandy gave evidence that the horse coming across was ridden by Simon Snell and that he called out "Simon". He did not accept that Mr Snell might not have heard him. He said when he saw Simon's mount it was just over a length in front of Mr McCoull's mount.

Mr Bandy gave evidence that Brendan McCoull tried to relieve the pressure and ease back off the horse that was crossing in front by checking his mount back, but it happened too quickly for Mr McCoull to be able to ease any pressure and he was therefore taken in. Kane Bandy gave evidence that he did not notice Mr McCoull's horse over-racing.

As previously noted, Mr Bandy did not give evidence at the Stewards' inquiry.

Desmond Gleeson

Mr Gleeson gave evidence of his long association with the racing industry. At the time of giving evidence he was a director of Tasmanian Racing. He was Chairman of Stewards for the Southwest District Association in Victoria in 1977. He was appointed to the panel of the Victorian Racing Club in 1978, and Deputy Chairman of Stewards in 1983, and Chairman of Stewards in 1996. When Racing Victoria was formed he was appointed to the dual role of Director of Integrity Services and Chairman of Stewards in 2000 and he held that role until his retirement until July 2008. The duties of stewards in Tasmania and Victoria are the same, to uphold the Australian Rules of Racing. He has been formally involved in the appointment of the Racing Board in New South Wales and the Racing Appeals Deputy Chairman in Tasmania. Mr Gleeson has extensive experience officiating overseas[8].
[8] Officiated outside Australia at the Dubai World Cup meeting and worked on panels of six Dubai World Cups. He has represented Australia at Asian Racing Conferences, from an integrity aspect, from 1997 in South Africa and up until 2007 in Dubai. He has represented Australia on the Harmonisation of Rules Panel for the Asian Racing Conference (which included jurisdictions from all world racing nations).

Mr Gleeson was called as an expert witness who had been shown the video footage of the race, taken from four different camera angles. His evidence comprised of his description of the movements of the horses during the race and his opinion regarding the cause of the falls. His report regarding these matters was tendered in evidence. The material parts of the report stated:

" … I believe the incident occurred at approximately the 1000 metre mark of the 1200 metre race because Jockey Simon Snell rode his mount (The Mighty West) inwards when not sufficiently clear of Brendan McCoull's mount Colonel Parker, this action took Colonel Parker inwards, … because of the shift from the outside Tal Jack lost its rightful running and then appeared to clip heels and fall. Kevin Dodge's mount Oceano which was following was unable to avoid the fallen horse and rider also fell. Whilst Simon Snell did make an effort to straighten his mount (The Mighty West) in my opinion it was too late as the tightening to Colonel Parker, Tal Jack and Speechmaker had already occurred.
All riders are notified before they commence race riding and continually throughout their careers of their obligation when shifting ground either inwards or outwards to ensure the horses they are riding are clear (2 lengths) of following horses so as to avoid interfering with them.
In my view when Simon Snell rode his mount inwards he was 1 to 1.25 lengths clear of the horse racing on his inside, Colonel Parker and his riding was the cause of the incident occurring resulting in Tal Jack and Oceano falling."

Mr Gleeson gave evidence expanding upon various aspects of his report relating to Simon Snell's movement shifting inwards:

·     In terms of the two lengths clearance, Simon Snell's horse's hind legs and Brendon McCoull's horse's front legs overlapped considerably. This meant that when Mr Snell shifted in Mr McCoull had no option but to go in. Mr McCoull could not shift out and he could not maintain his position, otherwise he may clip Mr Snell's horse's heels and fall himself.
·     Simon Snell's mount was not "going away" from the horses on his inside and was maintaining his position. If he had been drawing away then the interference would have been reduced to some extent (p320).
·     Simon Snell's horse was tractable and responded when he was turned out but the "damage" had been done by the time Mr Snell took that action.

Mr Gleeson gave evidence regarding the location of the incident as occurring approximately 200 metres from the barriers in light of the objective that jockeys have to get to the rail. Mr Gleeson commented that the track at Elwick has a straight run until the first turn at approximately the 650 metre mark. There is time for the horses to shift inwards after the horses have sorted themselves out before the first turn. Generally, the horses continue racing in straight lines until the field sorts itself out. The leaders go forward and the horses who wish to race back in the field take up that position. Mr Gleeson noted that Mr Snell was in a "hurry" to get close to the rail with a long run still ahead of him before the first turn. Mr Gleeson also noted that at the time Mr Snell shifted inwards, the horses had not "sorted themselves out".

Mr Gleeson was asked to comment on Mr Snell's manoeuvre of shifting inwards in terms of a continuum of carelessness capturing breaches of the two lengths policy. He described Mr Snell's manoeuvre as a higher level breach of the policy and higher level carelessness, noting that Mr Snell was only one length in front of the horses, the pace of the horses, that he was not going away, and that the horses were still 350 – 400 metres away from having to negotiate the first turn. He gave evidence that it was "relatively rare" that riders shift in causing interference when only one length in front.

I treat Mr Gleeson's evidence describing Mr Snell's shift inwards as a "higher level of carelessness", as an opinion confined to the issue of the two lengths policy, and as a description of the nature of the breach as to whether it was a clear breach or a marginal breach of the policy. Of course, whether there has been a clear breach of the two lengths policy, or indeed any other policy, or a rule of racing, is not determinative of the question of whether there has been negligence by a jockey: Rootes v Shelton (supra) per Barwick CJ at 385; Appo v Stanley (supra), par[44]. Depending on the circumstances it may be that a clear breach of the two lengths policy does not amount to negligence.

In cross-examination Mr Gleeson was asked about the judgment that jockeys make regarding whether they are two lengths clear. He gave evidence that jockeys often make errors of judgment as to whether they are two lengths clear. Riders are regularly charged with careless riding, and that most frequently, careless riding is caused by riders shifting in when they are not two lengths clear.

Mr Gleeson agreed that jockeys only have a few seconds in which to decide whether they are two lengths clear. Mr Gleeson gave evidence that once Mr Snell looked, there was no possible chance of him making an error as to whether he was two lengths clear or not, because Mr McCoull's mount was only one length behind and right at the rump of Mr Snell's mount.

He was pressed about whether or not errors of judgment with regard to the policy occur when jockeys take care, and he gave the following evidence at p330:

"Well, that error of judgment can occur even if a jockey takes care to make the judgment………Well, it depends. If he endeavours to take care and misses it by a length, he hasn't taken care.
…
It's looking and making a judgment about distance?........Yes, but you can't – it's not an error if you miss it by a length. If you miss the judgment by a length, that's more than an error. It's a serious error."

Mr Gleeson gave evidence regarding the practice of calling out by jockeys. Jockeys will call out if they feel that they are losing their rightful running when another horse is shifting ground. Jockeys call out to alert the rider who is shifting ground that there are horses on his inside. Generally, if that happens, riders will then take the required action to ease off.

Mr Gleeson was asked about whether Mr McCoull's horse over-raced to some extent contributing to the incident. Mr Gleeson's evidence was that the horse certainly lifted its head but that was when Brendan McCoull took hold of his horse as Simon Snell's horse on his outside is "shifting into his running". Mr Gleeson gave evidence that it is not unusual for a horse to throw its head up when it is being restrained in that manner. He agreed that Mr McCoull would be the best judge as to whether his horse over-raced.

Wade Lindsay Hadley

Wade Lindsay Hadley is Chairman of the Thoroughbred Stewards, Tasmania, and has held that position for the past five and a half years. He was on duty as Chairman of Stewards on 28 January 2007 at Elwick and he chaired the inquiry involving Mr Dodge's fall. The transcript records Mr Hadley informing Mr Snell that he had a charge to answer under AR 137, of careless riding. Mr Hadley gave evidence that he believed Mr Snell had a charge to answer based on the evidence that was taken during the inquiry, and the evidence from the video of the race that was shown during the inquiry. He had also reviewed the video of the race recently before the trial and he adhered to his belief as expressed in the charge. The charge read out by Hadley during the inquiry was, in part, as follows:

"In that whilst riding THE MIGHTY WEST in race 8 the Moorilla Estate Stakes at approximately the thousand metres you rode your mount inwards resulting in COLONEL PARKER Brendon McCoull being carried in onto Kane Bandy TAL JACK ...".

Mr Hadley expressed the view during his evidence at the trial that Mr Snell had come across when he was "insufficiently clear of the runners to his inside" which led to the incident. His settled view of the clearance that Mr Snell had was a length and a quarter, and that he did not see any gap greater than that.

Mr Hadley gave evidence about the issue of over-racing by Mr McCoull. Mr Hadley's evidence was that Mr McCoull took evasive action when Mr Snell came across quickly. He stated that it was quite clear that leading up to the incident Mr McCoull's mount was tracking in a straight line and it was not until he received the pressure from the outside from Mr Snell's mount that he attempted to ease his mount.

Mr Hadley conceded that over-racing might have the effect of closing the gap which Mr Snell established. However, he gave evidence that he believed that in this case, the gap was one and a quarter lengths and maintaining.

Mr Hadley agreed that Mr Snell gave evidence to the inquiry, not recorded due to a radio interruption, to the effect that he had taken care to see that he was clear to cross, and Mr Snell had said that he believed that he was clear.

Mr Hadley was asked questions regarding whether interference by crossing is a common occurrence. He conceded that a breach of the two lengths policy is a frequent occurrence but he did not concede that the degree of interference in this case was common. In re-examination he explained that a crossing at one and a quarter lengths and maintaining is "rarely seen".

Simon Snell on The Mighty West

Simon Snell gave evidence-in-chief relating to the frequency with which jockeys breach the two lengths rule. He has seen the two lengths policy breached by other jockeys "all the time". He has seen it result in falls and result in injury. Mr Snell stated that falls caused by breach of the policy often occur.

Mr Snell described the unfolding of the race to the point of Mr Dodge's fall. From the outset he wanted to race forward. He crossed Mr Pires and Mr Smith "okay" and he crossed Brendon McCoull "okay". In doing so he looked, "I think it was three or four times, with one real good look". He was looking to make sure that he was clear of all the riders to his inside. The films of the race show him looking and he has got his head turned to the side for a number of strides.

Later Mr Snell gave evidence that he had not crossed into Mr McCoull's path. His account in this regard was based on what he had seen in the films of the race.

Mr Snell gave evidence acknowledging that it was clear from the films of the race that he was not two lengths clear. His evidence was as follows:

"But after seeing the film I believe that I wasn't the full two lengths required to cross Jockey McCoull and I therefore, at that stage, when I was looking, I straightened my mount, and after looking at the film it looks to me that Jockey McCoull's horse got over racing, that's why I straightened my mount. But, I'd stepped in for one stride which had sent McCoull in on a inward path, and two strides later there was a fall. I believe McCoull's horse had a big part in this situation for two reasons; it's over raced and also laid away from my horse – ".

Mr Snell gave evidence that his description of Mr McCoull's horse as over-racing was also based on what he had seen in the video of the race and not his memory of observations during the race. Mr Snell gave evidence that he straightened his horse and that had the effect of opening the gap between him and Mr McCoull's horse, giving Mr McCoull an opportunity to move out. Mr Snell gave evidence that, despite that opportunity, Mr McCoull's horse did not move out immediately but continued on inwards for two strides.

Mr Snell stated that when he looked to determine if he was clear to cross Mr McCoull he saw two horses on the inside: Colonel Parker and Speechmaker. Having seen the film of the race he accepted Mr Bandy, riding Tal Jack, was also on his inside, but he did not see him during the race because his vision was obscured by Mr McCoull.

Mr Snell's evidence was that he did not hear anyone calling out to him. He gave evidence that the conditions were very windy, with the wind coming off the Derwent and going towards the grandstand, from his right to left, affecting the ability of jockeys to hear during the race.

In cross-examination Mr Snell was asked whether he had a good look before he crossed Mr Pires with the implication that he did not have a good look when he shifted towards Mr McCoull. Mr Snell agreed that he looked before crossing Mr Pires and maintained that he had had a "good look" when he was about to cross Mr McCoull.

Mr Snell said in his evidence that during the race he had not realised that he was not clear to cross Mr McCoull. During cross-examination Mr Snell maintained that during the race, and before seeing the video of the race, he thought he had been "clear" of Mr McCoull.

As noted, Mr Snell's evidence acknowledged that it was apparent from the video of the race that he was not in fact the required two lengths clear of Mr McCoull. Noting that Mr Snell straightened his mount rather than continuing on his path to the rail, he was asked questions about why he had done so. His response was that he had done so because he had not given Mr McCoull the required two lengths. This response was at odds with Mr Snell's account that during the race he thought he was right to cross in front of Mr McCoull, and that it was not until he had seen the video of the race that it was evident that he was not two lengths clear. The cross-examination probed whether he straightened because he heard the calls from the other jockeys, but Mr Snell maintained that he did not hear any calls.

Given that Mr Snell's evidence was that his awareness that he was not two lengths clear came from the video of the race, I was left without an adequate explanation for why Mr Snell had straightened his horse rather than continuing on his inward path to the rail.

The evidence given by Mr Snell at the inquiry

The account from Mr Snell during the inquiry based upon his memory of what had happened in the race was very minimal. During the race he had not been aware of the fall/s and all he could remember was that he had looked three times.

After he watched the video he gave further information to the inquiry. Focussing on the final moment before the fall, the evidence Mr Snell gave was:

·     Mr Snell believed he was free to cross and was "gunna do it real quick".
·     Jockey McCoull's mount was over-racing and it went in and caused the interference.
·     He agreed that Jockey McCoull got inside his heels and he said that was why he "come off", ie shifted outwards.
·     Jockey McCoull's horse "obviously laid away" from Snell's horse, and Brendan took hold of it and that was when Snell shifted outwards.

When jockey Snell was asked whether he corrected too late he said, "I'd say yes sir, I wasn't aware of Kane Bandy inside at the time". When asked a question by Mr Dodge as to whether, if he had pulled out two strides earlier, then the interference probably would not have taken place, he said "one stride".

Cross-examination about the Blenheim Inn

Mr Read sought to cross-examine Mr Snell about his credibility and in particular, that he had robbed the Blenheim Inn at Longford on a date in the previous 12 months and stolen cash from the premises. The line of cross-examination was objected to and the evidence was received on a provisional basis, with an indication that a ruling would be given at a later time. It is convenient to provide that ruling in these reasons.

The Evidence Act 2001, s102, provides that evidence that is relevant only to a witness's credibility is not admissible. There is no suggestion that the evidence relates to any issue other than Mr Snell's credibility. Section 103 creates an exception in the case of cross-examination, providing the evidence has substantial probative value. In determining whether the evidence has substantial probative value, some of the matters that the court is to have regard to are set out in s103(2):

"(2) Without limiting the matters that the court may have regard to for the purposes of subsection (1), it is to have regard to –
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred."

The crime of robbery is a blatant act of dishonesty. The credibility of Mr Snell arises as a consideration in this trial. The recent criminal activity bears upon the issue of whether his account is to be believed in terms of his inherent honesty as a witness. Of course, it does not follow that because a man has robbed premises he will give false evidence. A person convicted of such a crime may tell the truth. I consider that the evidence is relevant to an assessment as to whether Mr Snell should be relied upon to provide a truthful account. I conclude that the evidence has "substantial probative value". This ruling addresses the potential relevance of the evidence and whether there is a real prospect or likelihood that the evidence may have a bearing on the issue of credibility. The ruling does not take account of whether the line of cross-examination was successful in undermining his credibility, ie whether counsel received the answers he was seeking: per Hulme J at par[58] in R v Lumsden [2003] NSWCCA 83, and R v Beattie (1996) 40 NSWLR 155 at 163. The evidence is admitted.

It transpired that the line of cross-examination has not in fact undermined Mr Snell's credibility as a witness. The answers he gave regarding the robbery did not indicate that his criminal conduct was representative of his character generally, or that it was revealing of his honesty as a witness in these proceedings. There was a suggestion in the answers he gave that his conduct was the product of unusual pressures or circumstances although, understandably, that was not explored in cross-examination. The line of questioning did not assist in my ultimate assessment of Mr Snell's reliability as a witness. I found that the evidence Mr Snell gave with regard to the incident was revealing with regard to his reliability, and it provided the basis for my assessment of his credibility and reliability.

Observations about the witnesses

In determining the contentious detail of what occurred during the race, the principal focus has been the reliability of the accounts given by the jockeys and an assessment of the accuracy of their recall of the events.

I made no adverse findings regarding the truthfulness and the honesty of Mr Dodge, Mr Snell and the jockeys who have given evidence in this trial. Similarly, the transcript of the Stewards' inquiry revealed that a frank account of the events was given by them.

I found the evidence of the plaintiff's witnesses Mr Dodge, Mr McCoull and Mr Bandy was given in a conscientious and fair manner. For example, in Mr Dodge's case he was asked in cross-examination about whether he saw Mr Snell looking to his left at any time. Mr Dodge explained that his view was probably obscured at that stage, but he volunteered that he had seen on the video that Mr Snell looked once. He described that it was one good look and that he may have glanced across on other occasions but he had not detected that on the video.

Largely, the accounts given by the plaintiff's witnesses did not appear to stray beyond the limitations of their observations and their recollections, and they did not seem to overstate facts. Their accounts were consistent. I found them persuasive.

I found Mr Snell's memory of the critical moments before the incident was extremely limited. It was evident that he remembered a few isolated matters such as looking to his inside, thinking he was right to cross in front of Mr McCoull and not realising that there was another jockey to the inside of Mr McCoull. Another key matter he remembered occurring at a slightly later stage of the race was straightening up, thereby allowing some space between himself and Mr McCoull.

Otherwise Mr Snell's memory of this stage of the events was lacking in content and almost non-existent. His evidence did not suggest that he even had a recollection of the distance of his mount from Mr McCoull's mount, and yet there is no dispute that he looked before shifting inwards to cross.

Some of the evidence given by Mr Snell was ill-considered and incautious, and there were some inconsistencies in the account he gave. For example, he spoke about crossing Mr McCoull, and then later, when asked about that, he stated he had not crossed him at all. It is noted that his first poorly considered answer was not to his advantage. The unreliable aspects of his evidence were not calculated to improve his position.

Parts of the account Mr Snell gave in Court of his observations were influenced by the videos of the race, and he could not extract a memory of those observations untainted by the videos. For example, he could not extract a memory of why he had straightened up. Despite persistent cross-examination about why he had straightened up he kept referring to knowledge he had acquired from watching the videos of the race and which obviously he did not have at the time of the race. There was a genuine level of confusion and inability to detect the logic underpinning the questions in cross-examination.

The objective evidence of the videos and the stills taken from the videos of the race is helpful in resolving some of the issues.

The evidence of Wade Hadley and Mr Gleeson was largely unchallenged. I found they gave objective, sound evidence which proved helpful in resolving some of the issues.

Findings of fact

Did Snell have a proper look?

I find that as Mr Snell reached Mr McCoull and before shifting inwards he looked to his inside. It was a definite turning of his head to look and not a glance. Mr Snell maintained he looked three to four times. If he looked three times before deciding to cross Mr McCoull, the other two looks must have been glances and cannot be seen on the film or the photographs. In light of my findings, whether or not Mr Snell looked once or three times, is immaterial.

The question of whether Mr Snell not just looked but had a proper look, paying attention to what he saw, needs to be considered in light of my findings about the two lengths policy, and clearance of Mr McCoull when Mr Snell decided to cross and shifted inwards. I will make findings about this later in the context of conclusions about the facts.

I accept Mr Snell's evidence that he did not see Mr Bandy and he did not know there was a horse to the inside of Mr McCoull between Mr Mertens and Mr McCoull. Mr Bandy was about three quarters of a length to a length behind Mr McCoull's mount. Mr Snell's view was obscured by Mr McCoull and Mr Bandy's view of Mr Snell was obscured by Mr McCoull.

Implicit in Mr Snell's evidence that he did not see Mr Bandy and he did not know another horse was there when he proceeded to cross to the rail was that Mr Snell made an assumption that there was not another horse there. This assumption was unsound.

Mr Snell's sighting was not of two horses and a good clear view of empty track in between, but a sighting of Mr McCoull and Mr Bandy, with an obscured view of the location between and to the rear of the two horses. He did not see Mr Bandy's horse in its location because he could not see that location. It was evident to anyone in Mr Snell's position, if they had had a proper look, that their view was obscured.

Mr Snell's assumption that there were only two horses to his inside was made by him in a situation where there was a real prospect that there was another horse to his inside obscured from view, given:

·     It was early in the race when the horses had not sorted themselves out.
·     He could see the horses were tightly bunched and not spread out.
·     It was too early in the race for any of the horses to have fallen behind.
·     He was in the outside barrier and all the horses had been to his inside, he had only crossed in front of Mr Pires and Mr Smith and the rest of the field was to still to his inside.

In making the assumption and in proceeding to cross to the rail, Mr Snell did not pay regard to the prospect of another horse to the inside of Mr McCoull and thus, three horses to cross to get to the rail. The implication of Mr Snell's assumption was that he did not appreciate how tight the situation was for the three horses, and that if he put pressure on Mr McCoull, there was no room for Mr McCoull to move across. Mr Snell having looked and not seen Mr Bandy, then continued to take an inward path to the rail.

Clearance with regard to the two lengths policy

There is no dispute that Mr Snell was not two lengths clear of Mr McCoull as he started to shift across. Mr Snell conceded in his evidence that, having viewed the videos of the race, he was not two lengths clear. The question is the degree of clearance as Mr Snell applied pressure and shifted inwards. A related question is Mr Snell's state of mind, whether he believed he was two lengths clear and whether he made an error of judgment that was understandable given the circumstances he was in.

The evidence of Mr McCoull regarding his memory of the clearance between his mount and Mr Snell's mount was that Mr Snell was well short of two lengths clear. In assessing Mr McCoull's evidence I am conscious that his evidence at one stage, that the rump of Mr Snell's horse was "probably" at or just forward of the shoulders of his horse, was not accurate, and that the horses were further apart than that. I found Mr McCoull's evidence of a distance of approximately a length in front was reliable. He was acutely affected by the situation that was unfolding and the clearance was an important matter from his point of view and, as was evident from his evidence, the focus of his attention. I noted that Mr McCoull's conduct in calling out and restraining his mount is consistent with him having observed the degree of clearance of approximately one length.

Mr Bandy saw Mr Snell at the last moment just before the fall. He was also alert to the situation that was unfolding. He also described Mr Snell as probably just over a length in front.

The videos of the race and the stills show that Mr McCoull and Mr Snell's mount are very close. The videos and the frames reveal the proximity of the hooves of Mr Snell's mount and Mr McCoull's mount and that they were close to clipping (frames 8 and 18, taken close in time, show the overlap of hooves). It was the fact that the rear heels of Mr Snell's mount were inside or close to inside the front heels of Mr McCoull's mount that created the pressure for Mr McCoull[9].
[9] In viewing the side on frames, the stride of the horses must be borne in mind, as when a horse's hooves are collected underneath the horse, then the distance between it and another horse appears greater. Frames 17 and 18 show this. Photograph 17 shows the horse's hooves collected and the head of McCoull's horse held in, while in photograph 18 its head is extended in a more natural position and the hooves of both horses are extended and overlap.

Photograph 18, taken close in time to the fall shows the proximity of the horses and a distance of about one and a quarter lengths. In photographs 19, 20 and 21 the horses are no further apart and may be even closer. The evidence of Mr Gleeson was persuasive as to the distance between the horses. Mr Hadley's account on this point, based on the video, was consistent with that given by Mr Gleeson.

Mr Snell's evidence was that, "I crossed Brendon McCoull okay" and later, when he clarified that he had not actually crossed Mr McCoull, his evidence was that he "thought he was clear of jockey McCoull". In cross-examination he was asked about what he meant by "clear" and he gave evidence that he meant he had cleared the two lengths rule.

His evidence that he believed he was two lengths clear of Mr McCoull, if accepted by me, would support the proposition that he was close to two lengths clear. However I found his evidence regarding his belief unconvincing. It lacked content and detail. Other than saying that during the race he looked, and thought he was clear to cross, there was no other detail regarding his observations. It was evident that the matter of clearance between his mount and Mr McCoull's mount as he applied pressure to Mr McCoull and shifted to his inside, was not the focus of his attention.

It was apparent that a prominent consideration in Mr Snell's decision to cross was the fact that he did not know Mr Bandy was there. He emphasised this consideration during the Stewards' inquiry. In his evidence during the trial it also seemed to be a matter that assumed some significance and was relevant to his assessment that he was "right to cross". Yet, if he was two lengths clear or more, it would not have mattered if Mr Bandy was there or not.

I found his observation of the clearance between his mount and McCoull's mount was non-existent other than a recollection that he was "right to cross".

During the inquiry Mr Snell conceded after viewing the video that he "got inside the heels" of Colonel Parker. He not only conceded that but gave it as an explanation for why he straightened up. That concession by the defendant made at the Stewards' inquiry provides further support for the plaintiff's case that Mr Snell was only approximately one length clear of Mr McCoull's mount.

I conclude that Mr Snell was well short of two lengths clear. The evidence of the jockeys, McCoull and Bandy, the videos and frames, all support the conclusion that he was only one and a quarter lengths clear at most. The concession made by Mr Snell at the Stewards' inquiry supports that conclusion. The evidence of Mr Gleeson and Mr Hadley and their interpretation of the films of the race that the horses were a length and a quarter apart, support this finding. Indeed, the evidence supporting the finding is overwhelming and the only evidence to the contrary is Mr Snell's impoverished recollection.

I conclude that Mr Snell was at most one and a quarter lengths clear when he shifted inwards on his path to the rail. Given Mr Snell's forward position there was a risk of clipping heels.

I also make the finding that it was obvious to a jockey in Mr Snell's position that he was well short of the two lengths clearance. The distance of only one and a quarter lengths meant that the nose of Mr McCoull's mount was approximately just behind the rump of Mr Snell's mount. That would have been a telling indicator to a jockey that he was well short of the necessary clearance. As Mr Gleeson said this could not be put down to an error of judgment. The fact that Mr Snell thought he was clear to cross indicates that he either did not pay attention to how close he was to Mr McCoull's mount when it was abundantly clear, or that his assessment that he was clear to cross was not about whether he considered he was complying with the two lengths policy but that he thought he could reach the rail without incident. His answers at the Stewards' inquiry indicate an impetuous decision to cross with a mindset that he would make it to the rail if he was quick enough. He may have assumed that Mr McCoull could move across if need be. As noted, it seems from Mr Snell's evidence during the trial and the Stewards' inquiry that a prime consideration in his decision to cross was that he did not know Mr Bandy was there. Seemingly, the apparent absence of Mr Bandy contributed to Mr Snell's assessment that he could effect the crossing.

The purpose of the two lengths policy

There was a suggestion on behalf of the defendant that the two lengths policy is really no more than a guide or rule of thumb. The evidence from Mr Gleeson persuaded me that it is not correct to refer to the policy as a rule of thumb. If jockeys do not comply with the policy, a charge of interference or reckless riding will generally result. If jockeys do not comply with the policy, and interference is caused, then jockeys are charged with careless or reckless riding. It was submitted for the defendant that breaches of the two lengths policy often go unpunished. The evidence established that there are instances where jockeys are not penalised. It is a matter of degree, and instances where there is no interference caused to other riders will mean that they are not guilty of careless riding. An example of a situation where a rider may not be charged with careless riding was given where the margin is very close to two lengths, especially if the gap is widening.

I consider that the proportion of time attributed to the categories of housework, helping bring in shopping and spring-cleaning and gardening is reasonable and does not overstate the time that would be spent on each of those categories of domestic chores.

Bearing in mind these observations the claim satisfies the requirement that awards for gratuitous services be conservative, reasonable and not ideally fulfilling needs.

What is the value of those services?

What then is the value of those past and future services of 7.4 hours per week? Section 28B(3) of the Act provides a cap on this award:

"(3)   In calculating damages for gratuitous services –
(a)     the hourly rate is not to exceed one-fortieth of adult average weekly earnings; and
(b)    the weekly rate is not to exceed adult average weekly earnings."

Adult average weekly earnings is defined as:

"'adult average weekly earnings' means the dollar figure for full-time adult ordinary time earnings for persons set out under the heading 'AVERAGE WEEKLY EARNINGS, Australia: Original' in catalogue number 6302.0 published by the Australian Bureau of Statistics, as amended from time to time;".

The amount claimed is for a flat hourly rate of $28.63 for the past and $30.58 for the future. It is evident that the rates involve some kind of working back from a rate of $34.60 per hour provided by occupational therapist Ms Ravangnani in her report dated February 2010. Ms Ravangnani's quoted amount of $34.60 was described by counsel for the plaintiff in his closing address as a "commercial rate".

The hourly rate referred to by Ms Ravangnani of $34.60 may be based on the average weekly earnings published by the Australian Bureau of Statistics for November 2009 (Exhibit P7). However, if that is the case, those earnings represent the statutory limit and there is no evidence suggesting that it is the market rate for the work performed.

My task is to determine a commercial rate for tasks performed by a nurse's aide, a house cleaner and a gardener and repair person. It would be usual for the Court to receive evidence of the salary or wages paid for comparable work[15]. Such information was not provided on behalf of either party in this case.
[15] Gaudron J in Van Gervan at 348.

It is apparent that the figures advanced by counsel for the plaintiff are not contentious, and counsel for the defendant did not submit the figures ought to be rejected, or suggest a lower hourly rate. However, ultimately the award must not exceed what is fair and reasonable between the parties and hence I must ensure that the claim awarded for the hourly rate is not excessive. The figure advanced on behalf of the plaintiff of approximately $30 per hour seems too high as a current hourly rate for housecleaning. It may not be for the other work.

Taking a pragmatic approach, acknowledging that bringing exactitude to this task is not possible and that the question of the commercial rate for work performed has not been contentious, I allow for the past nursing and personal care assistance an amount of $28 per hour. For housecleaning and domestic assistance I allow $20 per hour past and future.

For the first three months following discharge from hospital there was more than 7.4 hours per week dedicated to nursing assistance. That number of hours shall be allowed at the rate of $28 per hour ($2,486.40). For the time after the first three months to judgment, the hourly rate permitted is that of $20 per hour for 7.4 hours per week ($148 per week for period of 207 weeks to now). The amount allowed for this period is $30,636. The total amount for past gratuitous services is $33,122.40.

As for the future, I allow $20 per hour for 7.4 hours per week for the remainder of the plaintiff's life. As a lump sum for future loss a discount rate of 5 per cent is applied (CL Act, s28A(a) stipulating this rate) $148 x 918.9 = $135,997.20 with no allowance for mortality (the tables used were handed up during the trial, '$1 per week factors – improving mortality rates (2009 values), Cumpston Sarjeant Pty Ltd marked 'A').

The total amount allowed for future gratuitous services is the amount of $135,997.20. No discount is made for the vicissitudes of life: Sharman v Evans (1977) 138 CLR 563, at 587.

In the event that s28B(3) of the CL Act did not apply and gratuitous services were not compensable, then my determination would have been to allow an amount for domestic services as expenses that Mr Dodge would incur in the future. The evidence persuades me that the plaintiff would pay for domestic services in light of his circumstances, including his wife's current ill-health and his son's plans to leave home. It would be reasonable to assess that the plaintiff would pay for 7.4 hours of domestic services per week.

Medical, hospitalisation and associated expenses

The plaintiff claims past hospitalisation expenses. The evidence establishes that hospital fees in connection with Mr Dodge's injuries total $6,202.00. That amount is allowed.

Past medical treatment expenses are also claimed amounting to $3,879.00 These expenses are agreed and allowed.

Transport expenses relating to medical treatment is agreed in the sum of $334.35 and allowed. An amount of $400 is agreed for unplanned expenses arising from the plaintiff's emergency admission to the Royal Hobart Hospital.

Past expenses for prescription medication (pain relief P271 and anti-depressants) is claimed in the sum of $1,200 and not agreed. A portion of that amount, relating to the period 1 January 2008 to 11 March 2010, in the sum of $753.15 is agreed and substantiated by records from the Longford Pharmacy. The plaintiff's case is that the balance sum represents expenses incurred for January 2007 to 1 January 2008. Records for this period were not provided.

It is reasonable to suppose that the plaintiff's medication costs would have been at least at the same level as the costs incurred for the first six months in 2008, before he was first prescribed anti- depressants in August 2008. In the period January 2008 to June 2008, Mr Dodge's medication expenses totalled $206 per month. Therefore, for the period of 11 months from discharge from hospital at the end of January 2007 to 1 January 2008, the amount allowed is $378.00.

A total amount of $1,131.00 is allowed for medication costs for the period January 2007 to March 2010. Taking into account the cost of medication in the 12 months period ending March 2010 (Exhibit P14), an additional amount of $205.00 (13 months at $15.77 per month) is allowed for the period from March 2010 to the date of judgment. The total amount allowed for past medication costs is $1,336.15.

Future medical expenses are particularised as follows:

"(a)

annual review by neurosurgeon at a cost of $56.75

$56.75

(b)

general practitioner review 5 per year @ $45.00

225.00

(c)

Diagesic x 14 per week costs $9.90 for 20

$361.33

(d)

Mirtazapine 30 mg x 1 per day $19.90 for 30

60.04"

During closing submissions the plaintiff's counsel sought to substantiate an amount of $10,000 as being the amount sought for this claim.

The cost of a consultation with a neurosurgeon, as particularised, is not disputed and appears reasonable. Reviews by a neurosurgeon are warranted. Mr Dodge's neck injury is not expected to improve. There is the possibility that a cervical fusion procedure will be required. It may be noted that a claim for the neurosurgical procedure of having the mobile segment at C6/7 fused at a present cost of $10,000 has not been made.

The unchallenged opinion of neurosurgeon Mr Brownbill is that Mr Dodge should be reviewed periodically "by his treating doctors, with radiological investigations to determine if there is any increase in instability of the cervical spine or onset of any signs of radiculopathy or myelopathy" (Report of Mr Brownbill, P15). The frequency of these reviews was not specified. I will allow the cost of reviews by Mr Dodge's neurosurgeon every two years.

The claim for future medication expenses is based upon the assumption that he will continue taking medication at his current rate. That is a reasonable assumption given the permanent nature of his physical and psychological symptoms with no realistic prospect of improvement. In the past Mr Dodge has been compliant with his medication regime and it is evident that he is conscious of the benefits of the anti-depressant medication he is taking.

His medication costs are likely to continue unabated. Review by a general practitioner on a regular basis is reasonable for prescribing medication and monitoring its use. Four appointments per year would be reasonable for this purpose. Consultations with a general practitioner four times per year at a cost of approximately $50 each (see Medicare history statement, P12) is to be expected. This works out to be a cost of approximately $4.00 per week.

Mr Dodge's past cost of medication is approximately $7 per week (P14). The total ongoing costs of medication and attending his general practitioner works out to be $11 per week. Biannual review with a neurosurgeon is .54 cents per week. The total weekly sum of $11.54 calculated for the remainder of the plaintiff's life (life expectancy 40 years) discounted by 5 per cent tables (referred to above and again, using the multiplier of 918.9) amounts to $10,604.10. The amount claimed of $10,000 should be allowed.

Rehabilitation regime

There is a claim of $19,552 for an holistic rehabilitation program "designed to maximise his physical and emotional function, his independence and his quality of life". The recommendation is that the program be implemented over the next 12 months. This claim is based on the evidence of occupational therapist Ms Suzanne Miller Ravangnani. The detail of the program is as follows:

"• Psychotherapy/Life coaching – Mr Dodge requires 12 months of supportive, motivational coaching and assistance as a result of this accident. He requires one session per fortnight for 52 weeks @ $192 per session = $4992 Source: Australian Psychological Society

·     Occupational Therapy – Mr dodge would benefit from a very practical rehabilitation regime which focuses on factual information and very direct advice. He requires ergonomic education with regards his home environment, personal care routine, leisure and social options. He requires practical advice on how to maximise his performance and independence while minimising the aggravation of symptoms. To this end Mr Dodge requires an experienced Occupational Therapist (with ergonomic expertise) for 4 hours per month for 6 months @ $140 per hour = $3360 Source: Average cost of private Occupational Therapy consultation.
·     Supervised exercise – With the approval of his treating doctors, Mr Dodge would benefit from a gentle but effective exercise routine to reactive him and improve his tolerance of physical activity. This should be supervised by a personal trainer / physiotherapist. This may include aquarobics, a gym programme, Pilates, yoga or Qi Gong. He requires three sessions per week for the first 3 months and then two sessions per week for the following 9 months @ $70 per hour for 12 months = $7560.
·     Physiotherapy – In addition to exercise Mr Dodge would benefit from further physiotherapy to treat painful symptoms and maximise his physical function. He requires one session per week for 12 months @ $70 per hour = $3640."

In addition there is a claim for costs of travel involving two round trips from Longford to Launceston per week to attend exercise and treatment sessions in the sum of $1,404.00

Some of the medical practitioners have expressed a view about the proposed rehabilitation program. Dr Sharman is of the view that Mr Dodge has not improved to the extent that he would be able to participate in a rehabilitation program.

Dr Burke considers that it is very doubtful whether there is any useful place for such physical and/or psychological rehabilitation program and/or vocational rehabilitation. He considers that it is too late for such a program and that this man has become "very settled in his disabled state". His pessimism seems to relate to the benefits to be derived from the program in promoting Mr Dodge's return to employment and because he sees his prospects as extremely limited in this regard.

I accept that intervention from a psychologist would likely be of benefit to Mr Dodge if he would attend. However, as previously mentioned, the evidence demonstrates that Mr Dodge would not find psychological intervention palatable. I doubt psychotherapy would be worthwhile. There are various reasons for this. Not everyone is suited to psychotherapy. Dr Sale described it as "talking therapy" and said that Mr Dodge would find it difficult to grapple with concepts he would be expected to face (Dr Sale, t238). My own observations of Mr Dodge are that he is someone who is more comfortable talking about concrete and practical matters rather than his feelings. With similar reservations, I am not persuaded that he would find guidance from a "life coach" worthwhile.

Occupational therapy and ergonomic education seems sensible, and it would be reasonable to expect that Mr Dodge would benefit from that. I gather that the focus of that therapy would be to assist Mr Dodge in minimising aggravation of his symptoms and making adjustments to his home environment to reduce his pain and discomfort levels. In the absence of evidence justifying 20 hours of occupational assistance, and in light of the fact that 10 hours appears to be a significant amount of time dedicated to assessing and assisting Mr Dodge in this way, I allow 10 hours and an amount of $1,400.

The amount claimed for physiotherapy is on the basis of treatment once per week for 12 months. It is not apparent whether Mr Dodge has had any physiotherapy treatment since his fall. It is reasonable to anticipate that if he had physiotherapy offered to him, it would assist in managing his pain and restrictions. I allow 26 consultations, half the rate claimed, at a total amount of $1,820.

It is reasonable to expect that Mr Dodge would find supervised exercise helpful. He was previously a fit and athletic person who evidently enjoyed physically challenging himself. There is a reasonable likelihood that an exercise program will improve his mood, general health and sense of well-being. I allow this amount as claimed in the sum of $7,560.

The fact that allowance has been made for these expenses such as an exercise program which should enhance Mr Dodge's quality of life, and physiotherapy and occupational therapy which should assist in managing his pain and restrictions, is to be taken into account by me in assessing Mr Dodge's award for pain and suffering and loss of amenities.

The amount allowed for rehabilitation is $10,780.00 and $1,000 for travel expenses with an adjustment to those expenses to reflect that the expected number of journeys to Launceston for consultations is less than that claimed.

Aids for daily living

There is a claim for a pillow, memory foam mattress overlay and replacements, electric can opener, food processor, jar pop and 12 volt cordless drill/screwdriver. These claims are based on the evidence of Ms Ravangnani.

Dr Peter Sharman, occupational therapist fully supports the recommendations for a pillow and mattress overlay as essential to Mr Dodge's comfort. He does not see that at the moment he needs the kitchen appliances. I am not satisfied that the kitchen items and the cordless drill/screwdriver are warranted. The defendant does not dispute the need for pillow, overlay and replacements.

I am satisfied that an allowance for the pillow and overlay as claimed is reasonable and required to address Mr Dodge's discomfort. I allow the cost of a pillow at $230 and a replacement every three years, and mattress foam overlay of $330, with a replacement every 5 years. That is an annual cost of $142.66, and a weekly cost of $2.74. Discounted using the same table regarding Mr Dodge's life expectancy, and applying the factor of 918.9, the sum allowed is $2,517.78. Applying the life expectancy tables previously mentioned and a discount rate of 5 per cent, and the multiplier of 918.9, the sum allowed is $2,517.78.

Firewood

Before Mr Dodge was injured he cut his own firewood. Since his injury Mr Dodge has had to buy it. The defendant does not challenge the claim for the purchase of firewood and the particulars as to frequency and cost.

Mr Dodge pays approximately $160 - $165 per load of firewood. As a consequence of his injuries, the plaintiff feels the cold weather, and the house is kept warm through the winter months. In the year before the trial, six to eight loads were purchased. Allowing seven loads per annum at $160 per load since the date of injury until judgment, amounts to $4,480.

The plaintiff claims an amount for firewood for the remainder of his life. However, I consider it reasonable to assume that at some stage as Mr Dodge became older he would have chosen to purchase firewood instead of retrieving it himself. I will allow a period of 15 years of purchasing firewood attributed to the injury from the date of judgment. The cost is $1,120 per annum. The weekly value of $21.53 discounted by 5 per cent = $21.53 x 555 = $11,949.15[16].

General damages

[16] Luntz, 4th ed, Table 2 at 683.

This award of damages is to provide a plaintiff with "some consolation for … his non-pecuniary loss in respect to pain and suffering and loss of amenities" (Dobson v Jackson [2009] TASSC 118, at [114]). It is necessarily a difficult exercise requiring the "awarding of monetary compensation for that which cannot be measured in money" (Southern Regional Health Board v Grimsey (1998) 8 Tas R 166, at 188).

I do not need to traverse the details relevant to this head of damages, as they are set out fully above. It may be noted that the plaintiff will continue to suffer daily pain and discomfort at fluctuating levels. His depressive symptoms are expected to be enduring. His life has been diminished in almost every aspect including his sense of self-worth and identity. He is constantly reminded of his losses and is not able to adjust to his changed circumstances.

The sum awarded must be proportionate to the injury and its consequences. It is necessary to ensure there is no overlap with any other items of damage, and, that I take into account damages awarded which may have the effect of improving Mr Dodge's pain levels and amenities of life. In particular, I take into account the allowance for physiotherapy and an exercise program which may have this benefit.

Section 28 of the CL Act provides:

"28 Tariffs for damages for non-economic loss (general damages)
(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
(2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-economic loss in those earlier decisions."

In view of that provision, counsel for the plaintiff has referred me to awards for general damages in three earlier decisions of this Court: South v James Loughran & Sons Pty Ltd [2003] TASSC 59 (an award of $70,000); Anthony v Tasmanian Alkaloids Pty Ltd [2004] TASSC 118 (award of $60,000); Dobson v Jackson [2009] TASSC 118 (award of $200,000). He also referred to two decisions from other jurisdictions: Durkin v Mornington Racing Club Inc, unreported, County Court of Victoria, Duggan J, 14 September 2006 ($200,000); Harrison v Melham (No 2) (2005) 46 MVR ($235,000).These decisions were referred to as providing an indication of the awards for general damages from those jurisdictions.

It is not suggested that the decisions from this Court are factually similar. It was submitted by Mr Read that the Tasmanian cases provide an indication that an appropriate award in this case is in the region of $100,000 - $110,000. It was submitted that in view of the CL Act, s28 I may have regard to the much higher awards from other jurisdictions, and I am no longer constrained by that range. It was submitted that the Victorian case of Durkin v The Mornington Racing Club (supra) involving a jockey was similar in some respects.

It was submitted for the defendant that only a very moderate award for non-economic loss was appropriate. This argument was based on the premise that the plaintiff was left with limited genuine physical impairment and probably resolvable psychological difficulties. I have rejected the factual basis for that submission. Mr Jackson has not referred me to any awards.

Some general observations may be made about the approach of referring to a few isolated cases from other jurisdictions as the basis for a submission that the range reflected by awards from this Court ought to be increased. The cases are too few in number to provide an adequate guide to the range of awards for a particular jurisdiction. While the facts of one of the cases may be broadly similar, the award reflects details of the circumstances of the plaintiff that are quite different to the facts here.

The cases from Victoria and New South Wales may not be a representative example of awards from that State. Of course, those awards may also not be representative of other jurisdictions in Australia.

The other observation to be made is that the awards referred to from this Court and interstate are difficult to rationalise, and it is difficult to see how they might, together, operate as a guide to future assessments.

If I was to treat those particular cases from Victoria and New South Wales as a bench-mark then that would suggest that an amount approaching $200,000 may be appropriate in this case. Such an award would be out of line with other awards from this Court to which I have been referred. In Tasmania that sort of amount is reserved for plaintiffs who have suffered catastrophic injury and severe continuing disability.

Having regard to these observations I return to fundamental principles that assist with the task ahead. These principles were stated over 40 years ago by the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125, and, of course, well before the reforms in the CL Act, but they still provide sound guidance today. Of primary significance here is the principle that there is no "standard" to be derived from a consideration of amounts awarded in other specific cases, and that damages must be fair and reasonable compensation for the injuries received and the disabilities caused. However, it is also right to be aware of and give weight to general ideas of fairness and moderation.

The modern approach should be the same, with the refinement that by virtue of CL Act, s28, regard may be had to decisions of other courts in obtaining a general idea of fairness and moderation. I bear in mind the observations I have made about the decisions from Victoria and New South Wales which require a most circumspect approach.

Ultimately my consideration of the award in this case will be governed by a careful consideration of the injuries received by Mr Dodge and disabilities caused. Subject to the matters of fundamental principle in Planet Fisheries, I bear in mind other awards of general damages made in this jurisdiction and the awards to which I have been referred from this Court, and also other courts.

In view of the matters above, I assess general damages in the sum of $80,000.

Conclusion

I set out below the damages allowed:

Loss of earning capacity $470,897.73

Domestic and personal care $169,119.60

Past hospital and medical treatment expenses $10,081.00

Transport and emergency expenses $734.35

Past medication expenses $1,336.15

Future medication and medical expenses $10,000.00

Rehabilitation programme $10,780.00

Travelling expenses $1,000.00

Daily living aids $2517.78

Firewood $16,429.15

General damages $80,000.00

TOTAL $772,895.76

Taking an overall view of the total amount I am satisfied that it is just and reasonable and that the plaintiff is entitled to an award of $772,895.00. There will be judgment for the plaintiff against the defendant for that amount.

"(a)	annual review by neurosurgeon at a cost of $56.75	$56.75
(b)	general practitioner review 5 per year @ $45.00	225.00
(c)	Diagesic x 14 per week costs $9.90 for 20	$361.33
(d)	Mirtazapine 30 mg x 1 per day $19.90 for 30	60.04"

Loss of earning capacity	$470,897.73
Domestic and personal care	$169,119.60
Past hospital and medical treatment expenses	$10,081.00
Transport and emergency expenses	$734.35
Past medication expenses	$1,336.15
Future medication and medical expenses	$10,000.00
Rehabilitation programme	$10,780.00
Travelling expenses	$1,000.00
Daily living aids	$2517.78
Firewood	$16,429.15
General damages	$80,000.00
TOTAL	$772,895.76