Goode v Angland

[2016] NSWSC 1014

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Goode v Angland [2016] NSWSC 1014
Hearing dates:	6-8, 12-15 October, 16-19, 24, 25, 27 November 2015
Date of orders:	22 July 2016
Decision date:	22 July 2016
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Verdict for the defendant.
Catchwords:	TORT – negligence – personal injury – jockey injured in fall from horse during country race meeting – whether defendant negligently caused or permitted his horse to take plaintiff’s running – whether plaintiff’s horse advanced into a position of danger – Civil Liability Act 2002 s 5K – dangerous recreational activity – whether recreational activity includes professional horseracing
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Appo v Stanley [2010] QSC 383 Belna Pty Ltd t/a Fernwood Fitness Centre Parramatta v Irwin [2009] NSWCA 46 Caldwell v Maguire [2001] EWCA (Civ) 1054 Dodge v Snell [2011] TASSC 19 Grassi v Brandt (1986) Aust Torts Reports 80-010 Johnston v Frazer (1990) 21 NSWLR 89 Kliese v Pelling [1998] QSC 112 Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 Moloughney v Wellington Racing Club [1935] NZLR 800 Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361 Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; (1988) 194 CLR 355 Roads and Traffic Authority v Dederer (2007) 238 ALR 761 Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383 Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 Wooldridge v Sumner [1963] 2 QB 43
Category:	Principal judgment
Parties:	Paul Goode (Plaintiff) Tye Angland (Defendant)
Representation:	Counsel: A J Bartley SC with F Toscana (Plaintiff) J Sexton SC with D Lloyd (Defendant)   Solicitors: Ken Cush & Associates (Plaintiff) Lee and Lyons Lawyers (Defendant)
File Number(s):	2012/190052
Publication restriction:	Nil

Judgment

1. HIS HONOUR: On 29 June 2009, Mr Goode was riding a horse named Shot of the Rails in race 7 over 1640 metres at the Queanbeyan Racecourse. Mr Angland was a jockey riding Port Gallery in the same race. Shortly after the start of the race Mr Goode was thrown from his mount when it fell. Mr Goode sustained catastrophic injuries which have left him confined to a wheelchair for the rest of his life.

2. Mr Goode alleges in these proceedings that his injuries, loss and damage were caused by Mr Angland’s negligence or breach of duty by riding in such a manner as to cause interference to Mr Goode and his mount. Mr Angland denies these allegations.

Background

3. In the events that occurred, the actual incident that gives rise to these proceedings, as well as the events immediately preceding and succeeding it, are captured on video by a series of cameras located at various points around the Queanbeyan Racecourse. These video recordings, as well as a large series of still pictures derived from them, became evidence in these proceedings. It will be necessary in due course to refer to this photographic material in order to assess, if possible, precisely what it reveals about Mr Goode’s claims and Mr Angland’s competing contentions. This is referred to in more detail later in these reasons.

4. It would appear to be almost a universal practice these days for video recording of professional horseraces at metropolitan, regional and country race meetings throughout Australia. The Court specifically convened for the showing of these videos at the British Horseracing Authority at High Holborn in London so that they could be viewed, utilizing simultaneous split screen projections of the race in general and of Mr Goode’s fall in particular, from various angles, together with additional assistance of slow motion and freeze frame functions.

The video recordings

5. The video recordings of the race included depictions of the fall from the side and from the rear. Side views of the fall are helpful in assessing or estimating the relationship among the runners in terms of lengths or fractions of a length throughout the race but in particular in the moments leading up to the fall. It is uncontroversial that all of the horses in the race changed positions relative to all other horses as the race progressed. The side view at the point of Mr Goode’s fall is of assistance in considering the relative movements fore and aft of all of the horses in the race in general and specifically the proximity of Mr Goode’s mount to the horse ridden by Mr Angland, bearing in mind the allegation that Mr Goode’s horse clipped the heels of Mr Angland’s horse when the distance or space between them had, for whatever reason, become unsafely reduced.

6. The rear view of the race is correspondingly helpful in assessing the lateral movements of the horses throughout the race. In general terms the runners were in formations of between two and three horses off the rails in the moments leading up to the fall. There would appear to be a centrifugal tendency for the horses to move away from the rails when running through a bend in the track. Mr Goode alleges that Mr Angland steered his horse in toward the rails as Mr Goode’s horse was making a run into a gap between it and another runner. The rear view of the race provides assistance in assessing the relative lateral movements of these and other horses at this time.

7. It is however not practically possible in these reasons to give a complete or comprehensive running commentary on how the videos depict the race from these various angles and locations. That task is only manageable by selected references to the large number of still photographs or screenshots captured and assembled from the moving pictures.

The still photographs - screenshots

8. The still photographs of the race have been assembled in four folders that correspond to each of the four video cameras that recorded it. They are variously described as Head On, Lateral View, Back Straight and Home Turn. These pictures all carry a digital date and time imprint on the face of the picture. It is generally accepted that the timing devices for all cameras were in sequence, so that any two or more pictures from various camera angles that show the same time also depict precisely the same moment in the race.

9. In addition to these separate smaller folders, I was provided with a larger folder described as Comparative Camera Angles, which became exhibit “AC”. The larger folder consisted of a series of photographs extracted from three of the smaller folders containing reproductions of simultaneously exposed pictures taken from those smaller folders but displayed together on a single page. This compilation of simultaneously exposed photographs permitted a convenient examination of forty discrete moments in the race in sequences of up to three photographs at a time taken from as many different angles.

Comment

10. Even though all of this photographic material was extremely helpful, it cannot provide a single unambiguous answer to the liability issues in this case. The dynamic and to some extent unpredictable nature of horseracing is one reason for this. Another is that the moving and still photographic material does not of its very nature foreclose the possibility of varying and competing contentions or opinions about what it reveals. Moreover, the pictures must necessarily be considered having regard to the evidence of Mr Goode and Mr Angland in particular, as well as the evidence of the several other lay witnesses who have offered recollections of what they saw and heard, together with the competing expert opinions about what the stewards’ inquiry, the rules of racing and the photographic evidence reveal. These matters are all considered in more detail below.

11. It should also be noted that notwithstanding these limitations, all of the expert opinions offered on the issue of Mr Angland’s liability draw heavily upon what the cameras have captured of the race and Mr Goode’s fall. There is also little in dispute between the parties that does not revolve around competing interpretations of what the footage of the race reveals. The expert determinations in this case are therefore significantly fact-driven, rather than being concerned with the existence and content of a duty, the standard of care that applied or what does or does not amount to a failure to comply with it. One significant consequence of this is that the proceedings have not given rise to any issues of credit between or among the parties, the lay witnesses or the experts. I consider that all witnesses have done their best either to recall from memory what happened during the race or to offer honest opinions about what the video of the race actually reveals or both.

Mr Goode’s evidence on liability

12. On 29 June 2009, Mr Goode was riding at the Queanbeyan Races. He had five rides during that day. It was his recollection that he had been riding “reasonably well”. Mr Goode was injured during the last race of the day, Race 7 being the Cemex Building Your Future Class 1 Handicap over 1460 metres. He rode a horse named Shot of the Rails. Mr Goode had never ridden that horse before. It did not have very good form. Mr Goode said that he was not expecting to win or even do well in the race. He also said that he did not know what to expect from the horse. However, Mr Goode said that he wanted to ride and respond to the horse in order to give it the best chance.

13. Mr Goode’s horse was drawn wide. He had no recollection of anything unusual about the start of the race. Mr Goode said that he came out of the barrier and was sitting fairly close to the back of the field. The race was unremarkable until the horses approached the 1000 metre mark. Mr Goode’s horse was sitting close to the back of the pack. He saw two horses ahead of him. One was Mr Angland’s horse ahead and to his left. The other horse was ridden by Brad Clark which was on the rails. Both horses were about two lengths ahead of his mount. Mr Goode described these horses as “virtually side by side”. Mr Goode then said that he saw Mr Angland’s horse “move out to its left”, leaving a gap between him and Mr Clark’s horse. He described that gap as “a good horse”, which in these proceedings is accepted uncontroversially to mean a space into which another horse might safely advance or “improve”. Mr Angland’s horse was at that time according to Mr Goode “a good three to four horses from the rail”.

14. Mr Goode said that at that point he took the opportunity to improve his horse’s position by moving into the gap. He said that he remained in that position “for at least three or four strides”. At this point Mr Goode said that he saw Mr Angland’s horse “shift back to its right closing the gap between his horse and Clark’s horse”. In his statement of evidence dated 5 October 2015, Mr Goode said that he shouted “Tye!”. In the course of his oral evidence before me Mr Goode said that he shouted instead “Fuck, Tye!”. This apparent difference is referred to in more detail below. At all events, Mr Angland did not respond. Mr Goode said that Mr Angland did not look over his shoulder “before shifting his horse back towards its right”.

15. Mr Goode then heard the sound of horses’ hooves coming into contact. His precise words were, “I then heard the sound of heels of my horse’s hoofs [sic, hooves] with his horse’s hoofs [sic]”. Mr Goode described the noise as “unmistakable”, or as “a metallic clanking sound”. Mr Goode’s horse stumbled and fell to the ground.

16. Mr Goode was cross-examined. He agreed that horses shifting either in or out is a common occurrence in races and that the possibility of a horse shifting one way or the other during a race and interfering with another horse was a day-to-day incident of horseracing. Horses do not run in an absolutely straight line.

17. Mr Goode also agreed that he did not tell the stewards’ inquiry that he had called out to Mr Angland immediately before his fall. Nor did he mention this in his evidentiary statement. However, he denied that his evidence before me that he did so was untruthful.

18. Mr Goode acknowledged that in his evidence at the stewards’ inquiry he said that his horse was over racing. This occurred about 300 metres from the start of the race. He agreed that over racing means that a horse is unsettled and that it is exhibiting a tendency to race forward in a manner that needs to be controlled by the jockey. A horse that is over racing exhibits a tendency to push forward when compared to the other horses around it. Mr Goode agreed that his mount stumbled a few seconds, or roughly eight strides, before the fall and that the stumble was the result of it over racing. Mr Goode denied that he was having any difficulty controlling his horse but agreed that he had to stand in the stirrups in order to do so. He also agreed that his horse was throwing its head in the air a few seconds before the fall, but he denied that it was for that reason harder to control.

19. Mr Goode agreed that he had told the stewards’ inquiry that Mr Angland’s mount “had shot off a touch”. He agreed that he had intended by the use of that expression to indicate that Mr Angland’s horse had moved away from the inside running rail. Mr Goode then said that “a run has produced itself”, by which he meant to indicate that a gap had opened between Mr Angland’s horse and the horse closer to the inside running rail. Mr Goode told the stewards’ inquiry that at that point his “mount was then forward into the run”, meaning that his horse advanced relative to these other two horses.

20. It was put to Mr Goode in cross-examination that the film of the race made it clear that Mr Angland’s horse did not shift inside of the line of the horse in front of him. Mr Goode disagreed with that suggestion. He also disagreed with the suggestion that when he told the stewards’ inquiry that “Tye’s horse has just shifted in a touch” he had intended to indicate that Mr Angland’s horse had shifted in very slightly immediately before the fall. Mr Goode specifically denied that if Mr Angland’s horse shifted laterally back towards the rails, it was not a shift of a sufficient distance to cause him to call out to Mr Angland. Mr Goode also denied in that same context that the horse inside him being ridden by Brad Clark shifted out away from the inside running rail immediately before the accident or that Mr Goode’s horse also shifted out laterally away from the running rail at the same time.

21. Mr Goode denied that Mr Angland’s horse did not change its line when or as the fall occurred. He agreed with the proposition that in order to advance safely into a gap between horses a rider needs more space when the horses are racing on a turn than when running straight. Mr Goode accepted that when that occurred, one or other of the horses in front might shift laterally, whether or not the jockeys on those horses intended that movement to occur. Mr Goode agreed that horses have minds of their own and that it is not always possible to keep them running in a straight line.

22. Finally, it was put to Mr Goode that the gap between Mr Angland’s horse and Brad Clark’s horse into which he advanced was not sufficiently wide for him to have done so safely when racing around that particular turn at Queanbeyan. Mr Goode disagreed. Mr Goode also disagreed that in the two or three seconds before his horse fell, his horse shifted to the left and away from the inside running rail by at least two horse widths.

Mr Angland’s evidence on liability

23. Mr Angland provided a statement dated 14 August 2015. He confirmed that he was riding Port Gallery in the race in which Mr Goode was injured. He reviewed the video material before preparing his statement. However, Mr Angland said that his unassisted recollection of what occurred during the race was as follows.

24. At no time during the race did Mr Angland feel any interference. He learned of Mr Goode’s fall after the race. He did not hear Mr Goode call out his name or anything at all. Mr Angland said that his mount was not racing erratically and he did not have difficulty controlling it during the race.

25. Mr Angland commented upon the race footage as follows. He said that as he approached the 1400 metre mark he shifted out approximately half a horse. He said that this was not uncommon at this point on that track because the turn there is tighter than most turns on other racetracks. Mr Angland said that in his experience of riding at Queanbeyan, jockeys generally allow their horses a bit more space there in the event that “other riders get shot out as they negotiate the turn”.

26. As he approached the 1100 to 1000 metre mark just after the turn, Mr Angland said that his horse maintained its racing line. He said that “at no time do I cause it to shift in”. He said that at around that point he was approximately two lengths ahead and to the left of Mr Goode and parallel to and outside Mr Clark riding Dexter’s Angel. Mr Clark was positioned approximately two lengths ahead and to the right of Mr Goode and close to the rails. Mr Angland said that at this stage the gap between him and Mr Clark was approximately half a horse.

27. Mr Angland said that immediately before the fall, Mr Goode’s horse was over racing. He said that this was apparent from the fact that Mr Goode can be seen attempting to restrain his mount by pulling back on the reins and standing up in the saddle. Mr Goode’s horse was throwing its head into the air.

28. Mr Goode’s horse then improved its position by moving between him and Mr Clark. He described the position as “very tight”. Mr Angland said that immediately before the fall he was maintaining his racing line. He said that after shifting out at the 1400 metre mark, he at no time thereafter shifted to the inside of the horse in front. Mr Clark’s horse shifted out away from the rails, which he had earlier described as common on that turn at Queanbeyan Racecourse.

29. Mr Angland was cross-examined. He continued to maintain that the turn at the 1100 metre mark at the Queanbeyan Racecourse was one of the tightest turns on any racetrack he had ever ridden on. However, Mr Angland conceded that in terms of simple geometry, the turn at the 600 metre mark was clearly the tightest turn on the track. He denied that his evidence in describing the turn at 1400 metres as one of the tightest turns he had ever encountered at any track upon which he had ridden in Australia was intended to provide an excuse for his mount having moved out during the race. He also insisted that, having moved out at that point in the race, he continued to maintain his line. He denied that he steered his horse in. That denial was reaffirmed in his evidence at the start of his second day of cross-examination as follows:

“Q. You can see your horse with the very prominent white blaze?

A. Yes.

Q. Do you not agree that the blaze is turned quite markedly towards the rails in that photograph?

A. Well, slightly.

Q. Do you not agree that your right arm - the elbow seems to be held back on the right side?

A. No, it’s in a normal position.

Q. If the horse’s head is turned towards the rails, that would indicate that you were steering it towards the rails, wouldn’t it?

A. Not really, no.

Q. If there’s a combination of your right arm being back and the blaze being turned towards the rails, that would indicate that you were steering the horse towards the rails, doesn’t it?

A. I didn’t agree my arm was back.

Q. No, but if it were--

A. If.

Q. If it were and if the blaze were pointing towards the rails then that would indicate that you were attempting at least to steer it towards the rails?

A. Yes.”

30. Mr Angland attended the stewards’ inquiry and agreed that he had read the transcript of the proceedings. Mr Angland denied that he caused interference that led to Mr Goode’s fall. He also denied that he had ever been accused of causing it. He continued to deny that, having moved out, he “then rolled back in”.

31. Mr Angland had referred at the inquiry to “interference”. He was asked about that during his cross-examination as follows:

“Q. Who caused the interference that you’re describing at line 212 if it wasn’t you?

A. It was Paul’s horse. It didn’t make the corner.

Q. I see?

A. It was over racing and you could see that and a horse running around a bend that is over racing throwing its head is not going to make a corner like a normal horse would. The inside horses have come out to meet me. I keep a neat line and that’s where the interference happens. You can watch the film. If you look at the photos, it is all obvious in that.

Q. Did you suffer any interference?

A. No, I didn’t and like I say, the video proves that.”

32. Mr Angland was pressed about whether his horse rolled or moved in, or Mr Clark’s horse moved out, and whether Mr Goode had been presented with a good horse, meaning a gap between them into which it was safe to improve. He said this:

“His horse is over racing, running into a corner. When you’re over racing and you’re fighting with a horse around a corner, they’re not going to corner as well as a horse that is relaxed, comfortable, with the rider in full control. Therefore, he has stepped out a fraction, a slight fraction. He’s come out and he’s just grabbed a heel. It just takes a minor clip and that’s what’s happened, very unfortunately.”

33. Mr Angland maintained his view that no safe run had presented itself to Mr Goode. He said:

“Not a full safe run at all, not the way his horse was racing, and I’ve stated that numerous times.”

34. Mr Angland emphasised that he was not aware that Mr Goode was moving into the gap between him and Mr Clark. He said that he told the stewards that on a number of occasions “because that’s the truth”. He said, “I was unaware again that Mr Goode was there and there was no call for me to be aware that he was there and that’s when the incident happened”.

35. Mr Angland also agreed that he said the following things at the stewards’ inquiry:

“Once we sort of got around the corner, I wasn’t aware that Paul was there and I didn’t think anyone would have come up to my inside and that’s when, like I wouldn’t, I didn’t give, I didn’t think, I believe I gave a full run for a horse to approach my inside and that is when we sort of got back around the corner and that’s when I come back in my half horse”.

36. Mr Angland said that he played no part in his horse either moving out or moving back in. He said, “That’s the way my horse took the corner”. He agreed in that context that what his horse did was beyond his control. He said of thoroughbred race horses generally, “we can do our best to control them but at the end of the day they’ve got a mind of their own”.

37. Mr Angland was then challenged as follows:

“Q. But if you had looked, you would have seen him improving into it, wouldn’t you?

A. I can’t look behind me the whole race. That’s not, I can’t, I’m not there, we haven’t got eyes on the back of our head where we focus on what’s around us and if there’s a call, we look and then we do whatever we can to prevent, to help. We’re going forwards at high speeds. It’s like driving a car and looking in the rear vision mirror all the time. You don’t do it. That just sums it up. If you hear something or notice something, you obviously have a look. It’s a natural reaction but if you’re driving down a freeway at 110 kilometres an hour, you’re not going to look in the rear vision mirror the whole time. You see what objects are coming, what’s happening in front of you the way the cars are going. Cars are turning off, you obviously have a look before you move.

Q. Mr Angland, when the race started and the horses are coming from the barrier over towards the rails, you can see jockeys looking over their shoulder to see if it’s safe to move across, can’t you?

A. They do, sir, yes.

Q. That’s pretty standard practice, isn’t it?

A. It is if you’re shifting over.

Q. That’s all you had to do in this case, wasn’t it? Look over your shoulder and then you would have seen Mr Goode coming up into the gap.

A. No.

Q. Why didn’t you look over your shoulder?

A. Because my, it wasn’t intended, it’s a one stride thing. You’re out and you’re in and at that point of the race, jockeys look over their shoulders when they’re coming out wide to cross horses into a position. They don’t go the whole race looking over their shoulder.

Q. Of course, he did shout out, didn’t he?

A. No, he didn’t. That is something that he has made up since.

Q. You say he’s made that up.

A. He has and I know that for a fact.

Q. So you say you didn’t have to look because he didn’t shout.

A. No, because I wasn’t aware of a horse that was inside. I’m not going to ride a whole race looking inside me.”

38. On the following day, Mr Angland gave this evidence:

“Q. Mr Angland, I was asking you some questions yesterday about your horse moving out and then moving back in. Do you remember that?

A. Yes.

Q. Let’s get this clear. You agreed that you did move out and then move back in, don’t you?

A. Very minimal, not under my guidance.

Q. The answer to that is yes.

A. Not under my guidance.

Q. No, but the answer is that you did move out and then move back in?

A. Myself or my horse?

Q. Your horse with you on it?

A. Not under my control.

Q. Yes or no?

A. Well, there’s

…

Q. You say that was all in the space of about one stride?

A. Yeah, very - yeah, one or two strides, split seconds.

Q. Split second?

A. Split seconds, yeah. It’s very quick.

Q. Could you move out half a horse in a split second?

A. Every horse is different.

Q. Did you move out half a horse in that split second?

A. Myself or my horse?

Q. Let’s just assume that when I say ‘you’, I mean you and your horse?

A. But like I said, some horses don’t take corners as good as others, so it’s not my control. It wasn’t my choice to move out and then back in.”

39. Mr Angland agreed with the following suggestion:

“Q. You accept in your statement, don’t you, that the front legs of Mr Goode’s horse may well have clipped the back legs of your horse?

A. It’s a possibility. I wouldn’t say there’s any proof or there’s no evidence if it did but it’s a possibility.

Q. That’s based on your recollection of the race and of your viewing of the race?

A. Correct.”

40. Mr Angland maintained throughout that his horse did not move in at any time or in a way that related to Mr Goode’s fall. For example:

“Q. Mr Angland, in your evidence so far you have spoken about Mr Clark moving off the rails. Is that right?

A. Correct.

Q. That was a factor, do you say, in Mr Goode’s fall?

A. Correct. A contributing factor.

Q. I’m sorry?

A. A contributing factor.

Q. Do you in your statement point to the fact that Mr Goode’s horse appeared to be over racing?

A. Yes. That’s very obvious.

Q. Was that a contributing factor?

A. Yes.

Q. You have agreed that your horse moved in half a horse?

A. Not at the point of the fall, no.

Q. Perhaps I should put this differently. Whether or not you were in control of your horse, do you agree that Port Gallery moved back towards the rails just before the fall?

A. I think a few strides before. Yes; not that it had - not that I contributed. My horse did fractionally get back in, yes.

Q. It’s a combination of the three factors you say, isn’t it, Mr Clark moving out, Mr Goode over racing and Port Gallery moving in? It’s a combination of those three factors that caused the fall?

A. Yes, and that’s what the stewards’ inquiry concluded as well. No rider at fault.

Q. But you say of course that your mount moved back in because you couldn’t control it?

A. This was before the fall. My horse stepped out a fraction on the point of the corner and as we rounded the corner, he stepped back in a fraction.

Q. But just so it’s as clear as it can be, you’re not prepared to accept on behalf of yourself or your horse sole responsibility--

A. No.

Q. --for the fall?

A. No.

Q. But you do accept that your horse’s movement was a contributing factor to the fall?

A. My movement was before the fall.

Q. You do accept, don’t you, that your horse’s movement was a contributing factor to the fall?

A. Like I stated, my movement was a few strides before; so my position two strides before the fall and then Paul’s horse was over racing and didn’t make the corner as well as the other horses, and that’s when he struck trouble and that’s when he grabbed a heel.

Q. But it’s three things, isn’t it, that contribute to this fall; (1) you say Mr Clark moving off the rails?

A. Correct.

Q. Second, Mr Goode over racing?

A. Correct.

Q. And third, Port Gallery moving back towards the rails?

A. Like I stated just before, my horse had already found a position. I was already - I didn’t move two, three strides before it. They come across to meet my heels.

Q. Do you accept--

A. No.

Q. --that you or your horse was a contributing factor towards the fall?

A. My horse was outside him, so I don’t agree with that, no, because I had found my position and they come out to meet me, so I was there but I didn’t contribute to it.”

41. Mr Angland’s cross-examination concluded with an extensive series of questions directed to the still photographs and suggestions as to what various pictures appeared to reveal. It is unnecessary for present purposes to summarise all of that evidence here. It is sufficient to note that it included the following:

“Q. Go back to 22, in the home turn, would you say Mr Clark is a horse off the rails there?

A. I wouldn’t say a full horse, no. No, that would be roughly about half a horse.

Q. So if that’s half a horse, then the gap between you and Mr Clark is more than one horse, isn’t it?

A. I wouldn’t say it’s - it would be a comfortable horse, it would be a horse, a horse, yeah, a comfortable horse.”

The stewards’ inquiry

42. Racing NSW conducted an inquiry into Mr Goode’s fall on 12 March 2010. Several of the expert witnesses have referred to the transcript of those proceedings and it was tendered by Mr Goode. Neither party in these proceedings has suggested that the stewards’ inquiry produced a conclusion that is binding on me but both parties have sought to emphasise the significance in varying respects of the evidence given by witnesses who were called there, especially Mr Goode and Mr Angland. It is therefore important that the significant portions of their evidence to the stewards’ inquiry are recorded here.

43. The Chairman conducted the inquiry in what appears to have been a semi-formal manner, calling upon the interested parties and witnesses to comment upon the video of the race and upon each other’s evidence. Although it does not correspond to the order in which each person gave his evidence to the inquiry, I have referred in what follows to that evidence witness by witness in order to give a clearer picture of their respective recollections.

44. Mr Goode was asked by the Chairman if he remembered the fall. His response was as follows:

“Vaguely, sir. I just remember racing. I was second last, Nathan was just behind me. I was over racing a touch. I came back. I know it did get tight and then the next minute I was on the ground.”

45. Mr Goode’s statement that he “came back” was intended to indicate that he came back to racing, in that his horse stopped over racing and he regained control of his mount.

46. The video was then played and the Chairman asked Mr Goode whether he had any comments upon what he had observed. His response was as follows:

“Obviously you can see the mount was over racing a touch, and, as we have come to that point, and Tye’s mount has shot off a touch, the run has produced itself. My mount was then forward into the run and then unfortunately Tye’s horse has shifted in a touch and then that’s when I’ve come down.”

47. The Chairman then asked Mr Goode the following question:

“There’s evidence been given that your mount was over racing with you – and this is regardless of whether there was room for you to improve at all – do you recall how your mount was travelling with you in the leadup to the fall?”

48. Mr Goode answered in these terms:

“It was over racing a touch, then I pulled my mount back, came back a good half horse and then when I saw the run produce, I then just, without even myself giving it a dig to be there, I’ve just literally let the horse improve to be there and then, yeah, obviously it just got tight and that’s when I came down.”

49. Mr Goode agreed with the Chairman that it was his intention “to improve into that position”. Mr Goode said that when he improved into that position he believed that there was “a good horse” between Mr Angland’s mount and Brad Clark’s mount and that it had been apparent for “a good few strides”. Mr Goode indicated later in the proceedings that he did not wish to add anything to what he had said.

50. After the video footage had been shown by the stewards for the benefit of all those at the inquiry, the Chairman invited Mr Angland to comment upon what he saw. He said this:

“I was pretty much racing to the outside of Brad and sort of coming into the first corner, you can see there was a bit of interference in front of us, sort of give us a little bit of room. That corner you obviously get shot out a little bit. I probably come out half a horse and you can see Paul’s horse was over racing, sort of got up to the inside of me when I was unaware, so that we, sort of, come back to racing again and I think that’s when the interference happened.”

51. It is apparent that the stewards had conducted an earlier inquiry on an unspecified date. Unfortunately only one page of transcript from that day is available. The fact of that earlier session is alluded to in the following question from the Chairman directed to Mr Angland:

“I’ll refer back to your initial evidence on the day in question – you do mention, I think on two occasions, what you refer to as ‘carnage’ in front of you. Can you elaborate on that? What was the interference you were referring to at that stage of the race? Do you believe that was borne out by the film?”

52. Mr Angland responded in the following terms:

“Well, like, in – approaching into the first corner, I had Geppert – apprentice Geppert – to my outside coming back and it says in here – I can’t fully remember it now, but…”

53. Mr Angland was then asked:

“I suppose my question to you, you did say you were watching that going on in front of you, did that have any bearing on your mount? Were you dictated to?”

54. Mr Angland responded:

“I wouldn’t say I was dictated to, but obviously when you see a bit of carnage in front, you give yourself a bit of room if anything does happen, but it wasn’t bad. We’d just come into the first corner and pretty much every race in the 1400 metre corner you half get shot out for a little bit, I’ve probably rolled off half a horse. Paul Goode’s horse was over racing which ended up coming up to me on the inside when I wasn’t aware when I come back to normal racing pattern.”

55. Mr Angland said that he did not receive any direct interference himself. He explained that when he said his mount rolled out half a horse, he believed that left half a horse to his inside between his mount and Brad Clark’s horse. Mr Angland also said that when he did roll off, there would have been “probably two strides” running on his inside for a runner to improve.

56. Mr Angland was later asked for any final comments he might wish to make after having heard the evidence from all of the others. He said this:

“Yeah, I don’t really believe that there was a full run. Like, we were all coming into the first corner and every horse, every race – you can nearly say every horse does get shot off a bit and I just give myself a little bit of extra room because there was horses getting in a little bit of trouble in front and once we sort of got around the corner, I wasn’t aware that Paul was there and I didn’t think anyone would have come up to my inside and that’s when, like I wouldn’t – I didn’t give – I didn’t think – I believe I gave a full run for a horse to approach my inside and that is when we sort of got back around the corner and that’s when I come back in, my half horse.”

57. Mr Angland agreed that just after his mount did get out, his horse shifted back in when he “just got back around the corner and come back to racing pattern”. He said, “I was shifting back in”. He was then asked why his mount shifted back in. Mr Angland responded as follows:

“Because we got back round the corner and on the corner, at Queanbeyan, you come, approaching into it, you sort of get shot out a little bit, once you approach back round, it’s still turning and my horse would have just come back.”

58. Mr Angland was finally asked this:

“All right. I guess my question is, did your mount shift back to resume its position or was it your intention to shift back in?”

59. Mr Angland said:

“There was no intention, you just get shot back on that corner and the next minute you know you’re back into normal racing pattern because you just get shot out for that one, two strides. Like every race you could nearly replay you could see that happen.”

60. Nathan Cumberland was another jockey in the race. He was asked about the incident and said this:

“I don’t remember it too well, but I do remember I was outside Paul and it looked like his horse was over racing and he just got his head between Tye and whoever was inside Tye and I could see Paul trying to restrain and then he just went down. But where I was, it was nobody’s fault.”

61. Mr Cumberland agreed that he was aware that Mr Goode “was obviously in a bad position”. He offered his comments on the video in these terms:

“It’s just a bad track and a big field and it was a bad start. There was a little bit of carnage at – like I said before, I think Paul’s horse got over racing. Tye’s horse might’ve drifted off a little bit, Paul’s horse kicked up in there and he had troubles bringing it back.”

62. Mr Cumberland made a final comment to the inquiry when asked by the Chairman whether he was aware of Mr Angland, who was in front of him, “shifting off, getting into that 1000 metre turn”. He responded as follows:

“Not really, sir, no. All I was aware was when Paul was in trouble. I don’t know what – I wasn’t watching Tye or I can’t t remember where Tye was.”

63. Brad Clark also gave evidence at the inquiry. His mount had been racing on the rail leading up to the fall. He said that “you do get shot off at [the] turn and that but I thought I was pretty much on the rail all the way around”. He said “I was giving myself a little bit of room on the rails” but said that he “didn’t think [he] shifted too far off the rails at all”. Some reference was made to Mr Clark having previously said that he was aware of Mr Angland shifting out leading up to the fall. He was asked how much room there was between him and Mr Angland:

“We weren’t racing overly tight. Like, I knew he was up to my outside because he was half a length in front of me, but, you know, we might have been giving each other a bit of room as well. Like, he might have been a quarter of a horse, half a horse off me at the time.”

64. For completeness, the stewards’ inquiry came to the following conclusions:

“We find as follows: That leading up to the point, up to the 1100 metres, Shot of the Rails, Paul Goode’s mount, commences to over race and does continue to over race for some distance thereafter. Near the 1100 metres it is apparent that Port Gallery does not negotiate the turn and shifts out to a point where a run does present itself momentarily between Port Gallery and Dexter’s Angel for Shot of the Rails. Further, it’s apparent that at that stage, Shot of the Rails, while still over racing, improves into a position between those runners, whilst still under restraint from Paul Goode. A short distance after improving into that position, it is apparent that Shot of the Rails has insufficient racing room and falls as a consequence.

The stewards have given careful consideration to the circumstances which led to Shot of the Rails being left with insufficient racing room prior to the fall. After giving consideration to all that evidence, it is the opinion of the Stewards that Port Gallery, after failing to negotiate the turn near the 1100 metres, does shift back in and contributes to interference suffered by Shot of the Rails.

Tye Angland’s evidence is that there is a shift inwards from Port Gallery to reassume its racing position, after shifting out, but we would stress the absence of a direct head on or rear on view at the point leading up to the fall does not assist stewards in ascertaining the quantum of that shift. The available video evidence also does not assist stewards in determining whether there was any contribution from Dexter’s Angel in shifting out at any stage leading up to the fall.

In summation, the stewards are of the view that the fall of Shot of the Rails cannot be attributed to ride error. We are of the view that a contributing factor to the fall was Shot of the Rails’ inclination to over race resulting in the gelding improving into an awkward position between Dexter’s Angel and Port Gallery, running which, in the stewards’ opinion, was available momentarily due [to] the racing manners of Port Gallery which had shifted out. Again, whilst satisfied that Port Gallery does shift back in to reassume its position shortly after, we cannot be satisfied to the required standard that the fall can be attributed to any negligence on the part of Tye Angland, in particular, and his riding of Port Gallery at that stage.”

Mr Goode’s expert liability evidence

Brian Hilton Killian

65. Mr Killian prepared a report for Mr Goode dated 11 September 2013. He had read the stewards’ report and watched the video of the race. With respect to the latter, Mr Killian commented as follows:

“(a) Camera shot one: it is clear to me that there is clear running (16:55:50.40) between Brad Clark’s mount and Tye Angland’s mount.

(b) Camera shot two: shows a lateral shot, before and after Paul Goode’s fall at the 1000 metres. Tye Angland’s mount has a big white blaze on its head and just before the fall (16:55:51.70) Tye Angland turns his horse’s head inwards and very shortly after Paul Goode falls. My observation of the DVD and reading evidence leaves me firmly of the opinion that Paul Goode was within his rights to take a comfortable run between Brad Clark and Tye Angland. During the inquiry Mr Angland admits to shifting back to normal racing.

…

I am of the belief that jockey Tye Angland has breached AR 137(a) (which covers careless riding) in Race 7 at Queanbeyan Racecourse on 29 June 2009.

…

It is very clear to me on the DVD that the first camera shot at 16:55:50.40 shows that there is clear and comfortable room for Paul Goode to position his mount inside of Tye Angland’s mount.

Mr Angland then shifts his mount inwards causing Paul Goode’s mount to be cramped and lose his rightful running.

Paul Goode’s horse then falls at 16:55:55.15.

In my opinion this action by Mr Angland constitutes ‘careless riding’ as contemplated by the Australian Rules of Racing. Mr Angland should never have shifted his mount in towards Mr Goode’s mount and in doing so he breached AR 137(a).

The second camera shot (a lateral shot) on the DVD shows Tye Angland’s mount, which has a very prominent white blaze on its head. This camera shot shows Tye Angland turn his mount’s head inwards at 16:55:51.70, then at 16:55:55.15 Paul Goode’s horse falls.

My observations are supported by evidence taken at the Stewards inquiry on 12 March 2010, Paul Goode, page 3, 130, ‘I did get tight and next minute I was on the ground’ also page 7, 340, Paul Goode, ‘There was a horse there’ (meaning rightful running)…After the running of the DVD, page 8, 360, Tye Angland states that there wasn’t a run on the inside for Paul Goode’s mount, but clearly on the DVD that is not the case (see at 16:55:50.40). Then on the same page, 390, Mr Angland states ‘I was shifting back’.”

66. Mr Killian was cross-examined. He gave the following evidence:

“Q. A jockey advancing into a run knows that one or other of the horses ahead of his horse or both of them might shift laterally.

A. You don’t - if a jockey does that, he wouldn’t be riding in races. He wouldn’t earn a living if he rode up in between horses. To say that ‘I think that might shift or that might shift,’ there’s no way any jockey that’s riding in a race would go into a position saying ‘That’s going to shift. That’s going to shift,’ either that one or that one. He goes into it where there’s clear running. He goes into that clear running.

…

Q. You disagree with the proposition I just put to you.

A. Yes.”

67. Mr Killian agreed with the suggestion that horses can shift laterally when galloping, whether or not the jockey riding the horse intends that movement to occur, although he emphasised that it was the jockey’s job to keep the horse straight. That was however not always possible.

68. Mr Killian said that he did not observe Mr Goode’s horse stumble a few seconds before it fell. He said that if it did stumble, it was not sufficient for him to alter his opinion that the horse was going into clear running. He did agree that Mr Goode’s horse was over racing. Mr Killian said that Mr Goode’s horse was on the bit but was not unmanageable. It was his opinion that the horse was under control at the point when it fell as the following evidence reveals:

“Q. The opinions you’ve expressed are not on the basis that immediately before the fall, Mr Goode’s horse was over racing. Is that fair?

A. No, no, but just prior to the fall, the horse was under control, in my opinion. Back previously when Mr Goode was shifting out, the horse - he was having some difficulty but when the run come, he eased pressure he had on the horse to go into that run.”

69. Mr Killian was asked about the “two horse” rule, which he accepted was an unwritten convention concerning when it was safe for a jockey to move a horse across the path of another horse. He said that when a jockey intentionally attempts to shift ground, the onus is on him to leave enough racing room for the front legs of the horse that is being crossed. Mr Killian said, “That’s the interpretation that’s taken all over the country”. He confirmed that his opinion, that Mr Angland was responsible for Mr Goode’s horse falling, proceeded on the basis that Mr Angland was intentionally steering his horse back towards the rails. In expressing that opinion, Mr Killian agreed that he interpreted what Mr Angland said at the stewards’ inquiry as an admission that he was intentionally moving his horse towards the rails.

70. Mr Killian expanded on his opinion about the availability of clear running to Mr Goode in answer to a question on a different topic as follows:

“Q. You speak there of clear running but where in your report do you refer to Mr Angland shifting out to three or four horses from the rail?

A. I don’t think I do. All I say is there’s clear running quite - clear running at 55:51 as I made mention somewhere - or I made this after reading the report that Angland clearly states that there was carnage in front and he shifted out, giving himself room with the carnage up in front, which is the natural thing to do if there’s trouble in front of you. Angland is outside the other horse’s heels and if there is trouble he has got room to shift away and avoid any problems.

When it settled down, he turns his horse - that’s what I’m saying - at 55:51:80. It’s clear to me, looking at the video that he is safe; that there’s no carnage up in front. He turns the horse’s head back in. He comes in and when he comes back in, when the head is turned, there’s clearly - clearly; there’s no doubt in my mind that there’s space on the running lane with Clark.

There’s clear running with Mr Goode who is not actually up there at that time; he’s back. He’s back where the clear running is there, but then there’s clear running again and clear view between Angland and where Goode’s horse is when you’re looking at the rear view. My observation of it there is that when Angland turns the horse’s head, that clear, uninterrupted running, for Goode to go into that running, is there and there’s no doubting that in my mind.”

71. Mr Killian had previously provided a very short opinion dated 8 October 2012. It was in the following terms:

“I believe that Tye Angland made the wrong decision to avoid trouble in front of him by turning his mount’s head inwards, causing Paul Goode’s mount to fall. The mention of interference was made on several occasions during [the stewards’ inquiry], he shifted to give himself more room. In the position Tye Angland was in, he could have done one of two things, shift out or shift in, he took the wrong option and shifted in and took Paul Goode’s rightfully [sic] running.”

72. Mr Killian was asked questions about this opinion and specifically whether he would concede the possibility that Mr Angland’s horse moved in unintentionally, as opposed to having been steered there by its rider. His answer included the following:

“…I’ve had more experience with films, running films, reading films and I’ve got no doubt whatsoever in my mind - I repeat myself over and over again - that there wouldn’t have been any fall if Angland had held his ground and not come in. Nobody else’s heels could Mr Goode hit other than Angland who shifted back in, nobody. How many times you look at that video, you cannot blame anybody else for shifting and Mr Goode hitting Angland’s heels.”

73. This opinion was effectively confirmed by Mr Killian in response to further cross-examination as follows:

“SEXTON: Mr Killian, as you have accepted, it’s a fair description of your evidence and your opinion that you are adamant that Mr Angland shifted across in front of Mr Goode?

A. My opinion is, and it’s the rules and the way we always interpret them, if he shifts across another horse’s running and does not leave room for their front legs, that constitutes carelessness.

HIS HONOUR: Mr Killian, I think the only question you were asked was whether or not it was your opinion that Mr Angland shifted across?

A. Yes.

Q. Do you agree or not?

A. Yes.

SEXTON: In your opinion that’s absolutely clear from the videos that you have seen?

A. It’s clear to me.”

74. In elaboration of this, Mr Killian was taken to exhibit “AC” on page 19 and answered in these terms:

“A. At the rear of the field you’ve got a jockey, Clark, Mr Clark, he is at least half a horse off the fence. There’s clearance between Clark and Mr Goode, and Mr Goode at this point is back. He’s not up inside of Mr Angland’s heels. After this - and that’s when there’s plenty of room - Mr Angland comes back and you’ll see him when Mr Goode’s tail goes up at page 24 [quaere, 34] and he’s going down, he’s a very tight three horses wide. So he’s shifted from the best part of four deep, he’s about three and a half horses off the fence, nearly four, and when it comes to Mr Goode sitting up and trying to get out of trouble, he’s a tight three horses. So he’s shifted the best part of a full horse to come in and bring Mr Goode to grief.

SEXTON: So the answer to the question I asked before is that you would say he has come in a full-horse width?

A. Almost a full-horse width.

Q. Would you describe almost a full-horse width as being a touch?

A. I don’t understand your question.

Q. If somebody said to you that a jockey had shifted in a touch, would that suggest to you a full-horse width?

A. No, no.

Q. A touch suggests something much less than a full-horse width, doesn’t it?

A. Far less, yes.”

75. Mr Killian was extensively cross-examined by Mr Sexton SC about exhibit “AC” and specifically about the difference in time between when he said there was a clear run available to Mr Goode and when he considered Mr Angland deliberately started shifting in. After securing Mr Killian’s agreement about the distance that a racehorse was likely to travel at full gallop in a specified time, Mr Sexton asked the following questions:

“Q. So if a horse at full gallop is covering 25 metres, it will take three to four strides to do so. Do you agree with that?

A. I suppose so, yes. It would be somewhere around about it.

Q. Because if this gap was only available for three to four strides, then the gap would only be available for 25 to 30 metres. Do you agree with that?

A. 30 metres, yes. At least 30 metres.

Q. And the gap that you’ve identified from the photos and the point at which you’ve identified Mr Angland was deliberately shifting his horse in are about 25 to 30 metres apart, aren’t they?

A. About 30 metres apart, good 30 metres; good 30 metres, yes.”

76. Mr Killian then gave this evidence:

“Q. Horses are capable, if another horse gets in front of them, of avoiding contact. That’s right, isn’t it?

A. Yes.

Q. They don’t need a jockey to do that for them, do they?

A. No, but that could not be determined in one statement. No, that - horses will run up on to another horse’s heels if the jockey’s not there to stop them.

Q. They’re more likely to run up on to another horse’s heels if they’re over racing, aren’t they?

A. It’s possible, yes.

Q. Because over racing means that something has caused the horse to be unsettled.

A. They’re racing - they’re racing that they want to go faster, let’s put it that way, and they’re being restrained. They’ve got to be restrained. The jockey was restraining the horse in this instance.”

77. Mr Killian also agreed that the pictures at pages 20, 21, 22, 23, 24 and 25 of exhibit “AC”, which showed Mr Goode standing upright in the saddle compared to the other jockeys, were consistent with a jockey attempting to restrain a horse that is over racing.

James William Williams

78. Mr Williams provided two reports dated 18 October 2013 and 14 July 2015 respectively. Under the heading “Overall Opinion” in his first report, Mr Williams said this:

“It is my opinion that when Mr Angland shifted out he allowed clear running for Mr Goode’s mount…to safely take up a position to the inside of Mr Angland’s mount…and to the outside of Mr Clark’s mount…

Shortly after that run is presented then Mr Goode’s mount moves up to the inside of Mr Angland and is there for at least 4 strides. Mr Angland then turns his horse’s head inwards and steers his mount in.

The action of shifting in results in Mr Goode’s mount clipping the heels of Mr Angland’s mount and falling.

There is an established practice that two lengths constitutes a safe margin when a rider attempts to shift ground. In my experience as a steward it was acknowledged by the industry that two lengths is a safe distance for horses in full gallop to cross each other without the probability of the horses clipping heels or being interfered with.

…

It is my opinion that Mr Angland had the responsibility to know Mr Goode’s mount was to his inside and shifting out presented a run to Mr Goode that he would be enticed to take up that position. The onus falls on the rider who is shifting ground to be aware at all times where other riders are prior to shifting ground.

Mr Angland by steering his horse in should have known that this action would result in the clear running that was presented to Mr Goode would therefore be taken by Mr Angland’s mount. Due to Mr Angland’s race riding experience he would be familiar with racing patterns and the likelihood of horses taking up runs when they present themselves.

In my opinion, Mr Angland did not comply with the two length practice as his mount was not two lengths clear of Mr Goode’s mount when he shifted ground inwards. It is obvious from my observations of the film that Mr Angland was not sufficiently clear when he shifted ground due to Mr Goode’s mount clipping the heels of Mr Angland’s mount and falling.”

79. Mr Williams was cross-examined. He confirmed his understanding, taken from the video, that Mr Angland’s horse shifted out more than one horse and later shifted back in more than one horse. He disagreed with the proposition that horses do not run in an absolutely straight line. However, he agreed that a horse could run in a straight line even though its head may be turned to the side. He also agreed that from his experience the lateral movement of a horse can occur whether or not the jockey riding the horse intends that movement to occur. Part of a jockey’s job was to keep the horse running straight but it was not always possible to do so. Mr Williams agreed that Mr Goode’s horse stumbled but he did not mention it in his report as he did not consider that it was connected to the fall. He agreed that the stumble could have been caused by the horse over racing.

80. Mr Williams was asked about the shifts by Mr Angland’s horse as follows:

“Q. So your interpretation of the moving video footage and of these stills is that Mr Angland’s horse shifts out from this point in time?

A. Yes.

Q. Or has shifted out.

A. Has shifted out, yes.

Q. It is your opinion that later Mr Angland shifts back in?

A. Yes.

Q. In 2.2 do we understand the middle paragraph to mean that Mr Angland shifts out one horse or that he shifts out something less than that or more than that?

A. I’d say he shifts out more than that. I’ve said he leaves room for a horse.

Q. I understand that. I’m just trying to understand what we should take your opinion to be as to how far he has shifted out.

A. I would say more than one horse.

Q. And is it your opinion also that when Mr Angland subsequently shifts in, he shifts in more than one horse?

A. Yes.

Q. How much more than one horse?

A. Probably a horse and a half, maybe two horses.”

81. Mr Williams was taken to page four of his second report where he said, by reference to a Home Turn screen shot at 16:55:50.90, that Mr Angland’s horse shifts out and leaves room for one horse to his inside and to the outside of Mr Clark’s horse. His cross-examination on that topic was in the following terms:

“Q. Just following that comment, Mr Williams, would you go to page 4 of your second report, image 2. Is that a still shot?

A. Yes.

Q. Did you base your opinion on that still shot?

A. Yes.

Q. Going back to what you said in your first report, you say, ‘The gap is open for at least four strides before Port Gallery then shifts back in.’ Do you see that?

A. Yes.

Q. Four strides is a distance of about 28 metres, isn’t it?

A. Yes.

Q. The photo at page 17 in exhibit AC, which is the same photo as your image 2, is taken more than 100 metres before the point of the fall, isn’t it?

A. Yes.

Q. It follows, doesn’t it, that the gap was closed long before Mr Goode’s horse improved up to the back of Mr Angland’s horse.”

82. An objection to that question, based upon the proposition that it had never been put to Mr Goode that the gap had closed, interrupted Mr Williams’ attempt to answer it. The objection was later withdrawn. The question remained unanswered. However, Mr Williams was asked some further questions as follows:

“Q. Mr Williams, your overall opinion, the second paragraph, is to say shortly after that run is presented - and by ‘shortly after that run is presented’ you’re referring to what you say in the first paragraph under Overall Opinion, aren’t you?

A. Yes.

Q. You then say that Mr Goode’s mount moves up to the inside of Mr Angland and is there for at least four strides. You then say Mr Angland then turns his horse’s head inwards and steers his mount in. Do you see that?

A. Yes.

Q. But the two photos that you’ve identified - that is the gap and Mr Angland turning his horse’s head inwards - occur at the same time, don’t they?

A. Yes.

Q. What I’m putting to you is that the photos that you have relied on do not support your opinion that Mr Angland shifting in caused the fall more than 100 metres later.

A. Can I just clarify? Are you saying - because page 36 that you’ve identified as the fall - I mean, the gap is closed long before that.

Q. Well, if the gap’s closed long before that--

A. I mean, that horse was--

Q. Excuse me. Just wait for the question. If the gap has closed long before that, why isn’t Mr Goode keeping his horse back from the non-existent gap?

…

Q. Can you answer that question, Mr Williams?

A. What was the question, sorry?

Q. You said a moment ago words to the effect that the gap had closed long before the fall. Do you remember saying that?

A. Well, the gap that Tye Angland had moved in. I mean, that - what I’m trying to say is that shot that you took me to is the fall. Like it’s not the start of the fall. The start of the fall happens before that.

Q. How much before that?

A. Well, I mean, I’d have to go through but--

Q. Please do, Mr Williams.

A. Well, looking at those shots, I mean, I’d probably suggest 31 is where he - where Paul Goode is in trouble, I suppose.”

83. Mr Williams was referring to screenshot 31 in exhibit “AC”. Mr Williams was then cross-examined as follows:

“Q. If it was the fact that his horse was over racing till immediately before the fall, then it would be over racing in the photo at page 31 of exhibit AC, so he wouldn’t--

A. If you’re saying to me is he taking hold because his horse is over racing, I would say no. I would say he’s taking hold because he’s about to clip heels.

Q. The reason he’s about to clip heels is at least in part because his horse has been coming forward relative to Mr Angland’s horse, isn’t it?

A. I would say that he’s in a run. I wouldn’t say he was coming forward as Mr Angland’s horse - I would say that he was inside - he was in a - he had taken a run to the inside of Mr Angland’s horse.

Q. Can you identify by reference to these photos the point at which Mr Angland’s horse crosses in front of Mr Goode’s horse, so as to constitute interference in your experience as a steward?

A. I’d probably 29, he’s crossing him, 28, 29.”

84. Mr Williams gave the following evidence when his cross-examination continued on the next day:

“Q. So I understand your evidence, Mr Williams, is it your opinion that the gap which you identify at 16:55:50.81 which is the photograph on page 17 of exhibit AC did not close until the moment of the fall?

A. No. It was gradually closing as Tye Angland was shifting in.

Q. At what point do you say that the gap had closed so that Mr Goode could no longer safety intrude into it?

A. The gap really doesn’t close. Tye Angland shifts in front of Paul Goode and then Paul Goode clips his heels and falls. If you’re talking about the gap between Tye Angland and Brad Clark, that probably closes after the horse is on the ground.

Q. Is it your opinion, based on your interpretation of the film and the photographs that Mr Goode’s horse did not shift any further away from the rail between the photographs shown on page 17 of AC and the time of the fall?

A. No, I don’t believe it does.

Q. Following that through, Mr Clark’s horse shifts out; Mr Goode’s horse stays at the same distance away from the rails and Mr Angland’s horse shifts in one and a half to two horses, as you said yesterday. Is that your considered opinion?

A. Brad Clark’s horse barely shifts, if at all.

Q. Is it your considered opinion that Mr Goode’s horse does not shift at all off the rails?

A. No, I don’t believe - looking at those shots.

Q. It is your considered opinion that Mr Angland’s horse shifts in one and a half to two horses.

A. Yes.”

85. Mr Williams said that a racehorse could run a furlong in 12 seconds. He then said that that was roughly the equivalent of 100 metres in six seconds.

Mr Angland’s expert liability evidence

John Matthew Schreck

86. Mr Schreck provided a report dated 13 August 2015. That report was initially marked as exhibit “2”. Mr Schreck adhered to that report with one reservation, which he described in the following terms:

“In the report I submitted to the solicitors I didn’t have the advantage of seeing the still shots that had been done and I said that I thought that Jockey Goode got on to the heels of Angland and fell. I’m not 100% certain of that any more. It seems to me, looking at some of these other shots that the move of the horse from the inside - he wouldn’t get the heels but there’s a chance that his legs got tangled up with Dexter’s Angel. So I’m not prepared to say that it was Angland or the other horse that was responsible for the fall.”

87. However, a late objection to the whole of Mr Schreck’s report, including his later amended opinion, was taken by Mr Bartley SC on behalf of Mr Goode. I upheld that objection and rejected the report. I have therefore entirely disregarded it for the purposes of these reasons.

William James Burnett

88. Mr Burnett prepared a report dated 4 August 2015. He is a retired jockey with over 5,800 rides to his credit. His opinion may be summarised as follows.

89. After the jump, Mr Goode decided to cross behind the field and move towards the inside rail. He urged his mount along for a short time and then took hold of the horse. As soon as he did so, the horse began to over race. Mr Goode then tried to settle his mount, but the horse did not respond and continued to over race. As Mr Goode’s horse approached the first turn at 16:55:51.07 it stumbled. There does not appear to be any reason for this and the stumble is not caused by any other runner. Importantly, following the stumble, Mr Goode stood in the stirrups trying to regain control of his horse. Mr Burnett thought that Mr Goode experienced great difficulty in doing so. The horse then shifted to its left putting it what Mr Burnett describes as “too close” to Mr Angland’s horse, with which he then came into contact and fell. Mr Burnett did not agree that Mr Angland’s horse shifted to the right, allowing for the fact that there may have been some slight movement as the horses negotiated what appeared to be a very difficult turn. Mr Burnett said that he was in no doubt that the significant movement prior to and during the fall came from Mr Goode’s horse and not from Mr Angland’s horse. In his opinion, the fall was not caused by Mr Angland. The stumble experienced by Mr Goode’s horse played “a major role” in the fall. Mr Goode’s horse moved out shortly before the fall, giving the false impression that Mr Angland moved in.

90. In cross-examination Mr Burnett agreed that there was always room for Mr Goode to move inside Mr Angland. He agreed that the stumble occurred about three seconds before the fall. He also agreed that Mr Killian has for many years been regarded as one of the most skilful readers of a race in Australia. However, Mr Burnett, who was himself born in 1944, was not prepared to accept Mr Killian’s opinion in this case, as the following passages of evidence tend to reveal:

“Q. I appreciate that you only had his report when you wrote your report but having heard him in the witness box and having heard him cross examined and challenged, would you not accept that Mr Killian’s account of what happened in this race is to be preferred to your account?

A. Can I be totally honest here?

Q. Yes?

A. I was shocked and disappointed at listening to Mr Killian’s evidence. From a man of his experience, I was quite surprised and I can only say that I would put it down to his age.”

91. Mr Burnett later gave this evidence:

“BARTLEY: You put the fall down to the stumble.

A. No. I put the fall down to the fact that at no stage in the race in my opinion was Mr Goode in total control of Shot of the Rails and that was exacerbated by the stumble. If you look at the film clearly, you will see that throughout the race because he is trying to control his mount Mr Goode is continually moving to his left and actually towards Port Gallery and eventually he ends up on Port Gallery’s heels. It is also my opinion that once Angland got behind Predicate, he maintained the same distance from the inside running rail right throughout to the fall.

HIS HONOUR: So in summary your opinion is that there was always room for a horse to--

A. Between--

Q. Hold on.

A. Sorry.

Q. There was always room for Mr Goode to advance as he said but his horse drifted out and into the path of Mr Angland who continued to hold his line.

A. Correct.”

92. In summary, Mr Burnett was of the view that Mr Goode drifted out left and onto the heels of Mr Angland’s horse, not the other way round. Mr Goode was unable to control his mount because it was over racing.

Submissions

Mr Goode

93. In his detailed and helpful written submissions, Mr Goode contended that I should make the following findings of fact:

1. At about the 1100 metre mark, Mr Angland’s horse shifted out about one and a half to two horses to its left away from the rails.

2. The shift was partly because of the way Mr Angland negotiated the bend.

3. The shift to the left was partly caused by Mr Angland steering his horse to the left to avoid “carnage” up ahead.

4. In shifting to the left, Mr Angland created a gap of at least “a good horse” into which Mr Goode had legitimate running.

5. Mr Goode improved his horse’s position into the running created by Mr Angland shifting to his left between Mr Angland’s horse and Mr Clark’s horse.

6. At the bend, Mr Angland steered his horse inwards towards the rails and over approximately the next 100 metres he closed the gap between his horse and Mr Clark’s horse, taking Mr Goode’s rightful running.

7. At about the 1000 metre mark, Mr Goode’s horse’s front hooves clipped the rear heels of Mr Angland’s horse causing it to fall.

8. Prior to Mr Angland steering his horse back towards the rails, he did not look over his shoulder.

9. When Mr Angland steered his horse back towards the rails, he was approximately one length in front of Mr Goode’s horse.

10. In steering his horse towards the rails when he was only one length from Mr Goode’s horse, Mr Angland breached the “two lengths” rule.

11. By steering his horse towards the rails, when he was not sufficiently clear of Mr Goode, Mr Angland breached his duty of care.

94. In summary, Mr Goode alleges that Mr Angland breached his duty of care owed to him by shifting inwards across Mr Goode’s clear and rightful running contrary to the “two lengths” rule.

95. Mr Goode submitted that the video evidence, with particular reference to its interpretation provided by the expert witnesses, supported his contentions in the following ways.

96. First, Mr Killian’s analysis of the race was that Mr Angland had deliberately shifted out to avoid what he described as carnage up ahead, and when trouble did not eventuate, he turned his horse’s head in, shifted in carelessly, without leaving sufficient room for Mr Goode’s horse’s front legs, causing that horse to fall. He estimated that the inward shift by Mr Angland was “the best part of a full horse to come in and bring Mr Goode to grief”. Mr Killian did not think that Mr Goode was over racing immediately before the fall but that the over racing had occurred about fifty metres beforehand. He said Mr Goode’s horse was “under control” just prior to the fall. Mr Killian thought that Mr Angland’s decisions in shifting out and then back in leaving insufficient room for Mr Goode’s horse amounted to careless riding.

97. Secondly, Mr Williams considered that Mr Angland’s horse shifted out near the 1000 metre mark leaving room for one horse on his inside and to the outside of Mr Clark’s horse. That allowed clear running for Mr Goode’s horse safely to take up a position between them. Mr Goode’s horse moved up on the inside of Mr Angland’s horse before Mr Angland turned his horse’s head inwards and steered in towards the rails. That action caused Mr Goode’s horse to clip the heels of Mr Angland’s horse causing the fall. Mr Angland should have allowed at least two lengths before doing so. It was Mr Angland’s responsibility to know that Mr Goode’s horse was on his inside and that by shifting out he would present a run that Mr Goode would be enticed to take. He estimated that Mr Goode had been in the gap between Mr Angland’s horse and Mr Clark’s horse for approximately six seconds or roughly 100 metres before the fall. Mr Williams estimated the outward shift by Mr Angland’s horse to have been more than one horse and the inward shift as being probably a horse and a half and possibly two. He accepted that Mr Clark’s horse may have shifted slightly at the time of the fall but not significantly. He said that when the gap opened, it remained open for at least four strides before Mr Angland shifted in. The stumble by Mr Goode’s horse was of no relevance or significance.

98. Thirdly, and by way of contrast, Mr Burnett said the fall was caused by Mr Clark and Mr Goode each moving out to meet Mr Angland. Despite Mr Angland’s own evidence, Mr Burnett did not think that he shifted back in. That opinion fell foul of the evidence of the jockeys in the race, none of whom suggested that Mr Goode shifted out. Nor did the stewards make any mention of Mr Goode’s horse moving away from the rails at any time leading up to the fall. Mr Goode submitted that an acceptance of Mr Burnett’s opinion that Mr Angland’s horse did not shift inwards would require a rejection of what is clearly shown on the video and Mr Angland’s own evidence both to the stewards’ inquiry and in this Court that he did move back in. Mr Goode contended that Mr Burnett’s opinion appeared to be based upon the video showing Mr Angland following Mr Geppert and the related assumption that Mr Geppert did not alter his line. That opinion does not take account of the fact that Mr Geppert was several lengths ahead of Mr Goode and further into the bend, giving the false appearance that Mr Angland was behind him. Mr Goode also submitted that Mr Burnett’s opinion ignored Mr Angland’s “clear evidence” that Mr Geppert was in a group of horses that were riding “erratically” and that while he was in a line with Mr Geppert at one point, he did not follow him.

99. Mr Goode referred to Mr Angland’s evidence in which he admitted that his horse shifted out at the turn where the fall occurred and that he had shifted away from the rails to give himself a bit of extra room because of the carnage involving Mr Geppert. Mr Goode submitted that Mr Angland’s account, that his movement out and then back took place in a “split second” or in “one or two strides”, was “implausible”. Mr Angland had acknowledged that it was standard practice for a jockey to look over his shoulder when shifting ground.

100. Mr Goode also emphasised that Mr Angland agreed that the photographs showed his horse shifting out on the turn, that Mr Goode got his horse’s nose into the gap between Mr Angland’s horse and Mr Clark’s horse after Mr Angland shifted out and that the gap was at least at one stage a “comfortable horse”.

101. Finally Mr Goode emphasised that Mr Angland accepted that if photograph 15 of exhibit “Z” showed his arm was back and the white blaze of his horse was pointed towards the rails it would indicate that he was attempting to steer his horse towards the rails. Mr Angland did not however accept that the photograph depicted that assumption.

Mr Angland

102. Section 5B of the Civil Liability Act 2002 provides as follows:

“5B General principles

(1)    A person is not negligent in failing to take precautions against a risk of harm unless:

(a)    the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)    the risk was not insignificant, and

(c)    in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst 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 social utility of the activity that creates the risk of harm.”

103. Mr Angland uncontroversially conceded that the relevant risk in this case was both foreseeable and not insignificant. Acknowledging that the “precaution” issue could be expressed in a number of different ways, Mr Angland accepted that the factual question was whether Mr Goode could establish that Mr Angland rode his horse in an unreasonable manner in all of the circumstances. That was the relevant risk of harm.

104. Mr Angland emphasised that Mr Goode was required to discharge his onus of proof, having regard to the whole of the evidence. He stressed that it was not simply a matter of Mr Goode asserting that he “saw Tye’s horse shift back to its right closing the gap”. Furthermore, Mr Angland submitted that Mr Goode was required to do more, in the proof of his case, than merely establish on the balance of probabilities that Mr Angland’s horse moved laterally some distance at some stage. Mr Angland submitted that Mr Goode had to prove that Mr Angland’s horse moved an unreasonable distance laterally and that Mr Goode was thereby deprived of a reasonable opportunity to adjust his own horse’s position in response. In that respect, Mr Angland submitted that at no time was the nose of Mr Goode’s horse ahead of the tail of Mr Angland’s horse. Accordingly, all references in the evidence to Mr Goode’s horse “advancing into a run” or “improving into a run” or of “being between Mr Clark’s horse and Mr Angland’s horse” had to be understood as meaning that Mr Goode’s horse was advancing on a line between Mr Angland’s horse and Mr Clark’s horse when viewed from behind, but that Mr Goode’s horse was never at any time actually between those horses.

105. Sporting competitors, including jockeys, owe each other a duty of reasonable care that does not require proof of actual intention by a defendant to cause harm to a plaintiff: Johnston v Frazer (1990) 21 NSWLR 89 at 91E, 94C-G. In addition, there is no doubt that the rules of sport “are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist”: Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383 at 389:

“But the issue on either view is whether the defendant’s act or omission was a breach of a duty of care which he owed to the plaintiff; and accordingly in a case such as the present it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff’s injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organized affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff’s injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the "rules of the game" Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.”

106. With respect to the so-called “two lengths” rule, Mr Angland submitted that it was no more than a guideline or rule of thumb to which strict adherence was not inevitably required: depending upon the circumstances, something less than two lengths may not be consistent only with negligence. Moreover, the “rule” was directed to intentional lateral movements of a horse by its rider. Whilst clearly not determinative of breach in tort, that understanding is nevertheless a relevant consideration in determining whether a jockey’s conduct was unreasonable in terms of the law of negligence.

107. Mr Angland submitted that consideration and determination of questions of scope of duty and breach of duty may tend to overlap in sporting injury cases, particularly in those sports that are inherently dangerous. However, whether expressed in terms of the scope of the duty of care owed by one jockey to another during a professional horserace or in terms of the standard of reasonableness relevant to breach by the same jockey, relevant circumstances, apart from the written rules and unwritten practices of horseracing, are first, the nature of horse riding in any context and secondly, the nature of the contest in the sport of horseracing.

106. With respect to the former, Dankwerts LJ said in Wooldridge v Sumner [1963] 2 QB 43 at 59:

“I would…like to emphasise that a horse is not a reliable mechanical contrivance, compelled to answer the directions which may be conveyed to it…the horse has its own natural mind and impulses, and is the unpredictable partner in the combination of horse and rider.”

109. With respect to the latter, Chesterman J observed in Kliese v Pelling [1998] QSC 112 at 12:

“…the court ought not to be too delicate in its assessment of the defendant’s conduct which is said to have been negligent. Thoroughbred horseracing is a competitive business which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are limited. It is, no doubt, for these reasons that claims for damages arising out of horse races have been rare and are likely to remain so.”

110. Similar references are to be found in Appo v Stanley [2010] QSC 383. In that case the court noted that it is necessary to bring to account the fact that jockeys are engaged in sport, that that sport has inherent risks, and that they are obliged to use their best endeavours to win.

111. Mr Angland contended that these were factors that raised the distinction between errors of judgment and negligent conduct: see Caldwell v Maguire [2001] EWCA (Civ) 1054. In that case, a scope of duty requiring reckless disregard for the plaintiff’s safety was rejected in favour of a duty to exercise such degree of care as was appropriate in all of the circumstances. However, the plaintiff’s claim was rejected even though the defendant was found by the stewards to be guilty of careless riding. That was because something more is required for liability in negligence than “errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest” and that “it is not possible to characterise momentary carelessness as negligence”: at [25]-[37].

112. In Wooldridge v Sumner, Diplock LJ said at 68:

“…if in the course of the game or competition, at a moment when he really has not time to think, a participant by mistake takes a wrong measure, he is not, in my view, to be held guilty of any negligence.”

113. Mr Angland contended that both Mr Killian and Mr Williams approach the question of his liability by attempting to demonstrate that at particular, although different, points in the race, he deliberately steered his horse towards the rail, not that he carelessly permitted his horse to shift one way and then the other or that (as in the rejected claim in Caldwell v Maguire) he failed to look behind so as to avoid Mr Goode’s over racing horse. Both Mr Killian and Mr Williams emphasised the “two lengths” rule in the context of intentional conduct. However, Mr Angland argued as follows:

“The point is not to suggest that intention or recklessness is a necessary ingredient for a finding of negligence against a jockey but to emphasise at the outset of the factual inquiry that in the particular circumstances of this incident both of the plaintiff’s experts regarded it important to establish that there was a deliberate shift by the defendant, implicitly because, in the absence of intentional steering of the horse, what can be seen on the video in the hundred metres or so before the fall was simply part and parcel of highly competitive horseracing.”

114. The distinction between negligent acts or omissions and errors of judgment remains part of the common law of Australia. In Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at [16], Gleeson CJ remarked upon the difference between “an error of judgment and a failure to take reasonable care”.

115. Finally, it is trite to observe that no duty, including the duty owed by a jockey in a professional horserace, requires the elimination of risk or the prevention of foreseeable harm: Moloughney v Wellington Racing Club [1935] NZLR 800 at 806; Grassi v Brandt (1986) Aust Torts Reports 80-010 at 67,565; Roads and Traffic Authority v Dederer (2007) 238 ALR 761 at [18]; [51]-[52]; [278]; Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 at [26]. In Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at [4]-[5], Gleeson CJ said this:

“[4] In an action framed in negligence, the judge (if necessary) will decide, as a matter of law, whether the facts alleged by the plaintiff are capable of giving rise to a duty of care in the defendant towards the plaintiff. A legal issue of that kind is often capable of being decided on the pleadings. On the other hand, the alleged duty of care might depend upon contested facts that need to be resolved as part of the trial process. In order to be entitled to a verdict, the plaintiff will need to establish a duty of care, conduct on the part of the defendant in breach of that duty (negligent conduct), and consequential damage.

[5] In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours’ keepers, but they are not their neighbours’ insurers.”

116. Mr Angland submitted that Mr Goode’s claim must fail.

Consideration and findings

117. One aspect of Mr Goode’s case that is capable of discrete disposition is his claim that he called out to Mr Angland at the time of the fall or shortly beforehand. As earlier recorded, Mr Goode said in his statement of evidence dated 5 October 2015 that he shouted “Tye!”. In the course of his oral evidence before me, Mr Goode said that he shouted instead “Fuck, Tye!”.

118. Although in my view the questions of whether or not Mr Goode called out to Mr Angland at all, or the terms of precisely what he called out if he did, are beside the point of Mr Angland’s liability in these proceedings, I am not satisfied that Mr Goode called out to Mr Angland at all. First, Mr Goode never raised this suggestion at the stewards’ inquiry, when he might have been expected to do so. Secondly, although there are well known limitations upon deciding such a question upon the basis of a witness’s demeanour, I was left with the very distinct impression that Mr Goode was himself only faintly wedded to the strength of either version of his evidence about this. Thirdly, even though it was in Mr Angland’s interest to deny it, I found his denial convincing. As I have indicated, however, it is my view that the question of whether or not Mr Goode called out to Mr Angland is of no assistance to me in resolving the difficult and significant factual issues at large in this case.

119. I have found the video and screenshots taken of the race to be very helpful and instructive. I have taken the opportunity to view the video repeatedly on several different occasions. I have correspondingly examined the screenshots and assessed the experts’ opinions that refer specifically to various aspects of this evidence. I am not an expert in assessing or analysing what such video material or still photographs is said to reveal about a professional horserace. I have, however, utilised and referred to the photographic material in detail as an aid to understanding what the respective experts say that it demonstrates.

120. Mr Goode’s case in summary is that Mr Angland took his running when it was unsafe to do so. Mr Goode says that Mr Angland steered or permitted his horse to come across his line, inwards towards the rails. Mr Goode contends that he was maintaining his line and was improving into a gap a good horse wide. He should have been permitted to continue on that line but was brought down when his horse’s front legs clipped the heels of Mr Angland’s horse as it moved across. That would not have occurred if Mr Angland had maintained his line. It is implicit in Mr Goode’s argument that Mr Angland veered in this way, if not suddenly or unexpectedly, at least so that Mr Goode had no reasonable opportunity or ability to avoid the collision. That argument must necessarily include the proposition that Mr Angland’s lateral movement back in towards the rails was unreasonable both because of the extent of the movement and because of the timing of that movement, including in that last respect precisely when it occurred and how long it took when it did.

121. In my opinion, the fall occurred in the following way. First, it is patently clear from the video of the race, particularly the Home Turn camera angle, that any gap between Mr Angland’s horse and Mr Clark’s horse into which Mr Goode was seeking to improve does not close suddenly or even quickly. On the contrary, that gap appears to close over quite some distance, measurable from its start at approximately 16:55:49.79 or so until the fall commencing at about 16:55:53.80. Indeed, Mr Williams, who gave expert evidence for Mr Goode, made it clear that it was not his opinion that the gap did not close until the moment of the fall. Instead, he described the gap closing “gradually” as Mr Angland was shifting in. That can be quite instructively contrasted with Mr Angland’s horse rolling out away from the rails commencing at 16:55:50.41, which coincidentally serves to widen the gap for Mr Goode, but which clearly happens relatively quickly. Mr Williams’ opinion that the gap “was gradually closing as Tye Angland was shifting in” accords entirely with the view I have independently formed from viewing the video of the race.

122. Secondly, Mr Williams expressed the opinion that the gap between Mr Clark and Mr Angland did not close so that Mr Goode could no longer safely “intrude” into it. Mr Williams said “the gap really doesn’t close”. He said “Tye Angland shifts in front of Paul Goode and then Paul Goode clips his heels and falls”. It would seem to be Mr Williams’ opinion that the gap does not close even though Mr Angland’s horse “shifts in one and a half to two horses”. As Mr Williams said, “If you’re talking about the gap between Tye Angland and Brad Clark, that probably closes after the horse is on the ground”. Mr Williams’ opinion that the gap between Mr Clark and Mr Angland does not really close also accords entirely with the view I have independently formed from viewing the video of the race. Moreover, Mr Williams’ evidence concerning the lateral distance of between one and a half and two horses that Mr Angland’s horse shifts back in must also have occurred gradually, in accordance with his previous evidence to that effect. My own view of the video of the race leads me to form exactly the same opinion. The fact that the horses are all taking the turn gives the potentially misleading impression, when viewed from a stationary camera at the rear of the field, that all horses, including Mr Angland’s horse, are moving in towards the rails. I also prefer Mr Burnett’s opinion that “once [Mr] Angland got behind Predicate, he maintained the same distance from the inside running rail right throughout to the fall”.

123. In this same context I am unable to accept Mr Killian’s opinion that it is “clear” that Mr Angland’s horse shifts back in or that it happened intentionally. Mr Angland never agreed that his arm was back, indicating that he was pulling on the right rein. I have in any event some considerable difficulty accepting that Mr Killian could say that at 16:55:51.80 it is clear that Mr Angland is turning his horse’s head in towards the rails. In my opinion, Mr Angland’s horse on the contrary appears to hold its line, as Mr Burnett insisted, and that the gap into which Mr Goode proposed or hoped to improve closed gradually, as accepted by Mr Williams.

124. Thirdly, by way of confirmation of the view I have formed, Mr Angland’s horse appears to be well separated from Mr Clark’s horse in the fractions of a second following the fall. For example, this can be seen at 16:55:54.79. Before the fall, Mr Goode’s horse obscures this gap. However, at the point when Mr Goode’s horse goes down, there is then revealed what appears to be a gap of sufficient width into which Mr Goode’s horse could have continued safely to improve but for the fall.

125. Fourthly, at no time does the nose of Mr Goode’s horse get ahead of the tail of Mr Angland’s horse. This is best understood by reference to the Lateral View video and screenshots. I agree with submissions made on Mr Angland’s behalf that all references in the evidence to Mr Goode’s horse advancing or improving into a run or to being between Mr Clark’s horse and Mr Angland’s horse have to be understood as meaning that Mr Goode’s horse was advancing on a line directed to taking up a position between those horses but that it never actually succeeded in attaining or reaching a position between them.

126. Fifthly, throughout the gradual process of the gap closing between Mr Clark and Mr Angland, Mr Goode’s horse was over racing. He was as a result gaining ground on Mr Angland. Several references appear in the transcript to Mr Goode’s horse “improving”. This can be seen from the Lateral View screenshots and video between 16:55:51.63 and the fall. I find as a fact that Mr Goode was not able, despite his attempts and without fault on his part, to contain or restrain his mount. That had two consequences. Mr Goode was not able to prevent his horse moving ever closer to the gradually narrowing gap between Mr Clark and Mr Angland and was equally unable to prevent his horse in effect running into the rear legs of Mr Angland’s horse. As Mr Cumberland told the stewards’ inquiry, it looked like Mr Goode’s horse was over racing at that point “and he just got his head between Tye and whoever was inside Tye and I could see Paul trying to restrain and then he just went down”. Although I have been uninfluenced by the stewards’ decision, I consider that their description of Mr Goode’s horse “improving into an awkward position” is apt. I hasten to add that I do not agree with the stewards’ suggestion that Mr Goode improved to that awkward position “between” Mr Clark and Mr Angland. It is clear in my view that Mr Goode’s horse was never between these other two horses leading up to the fall.

127. Sixthly, I agree with the opinion of Mr Burnett that Mr Goode’s horse drifted slightly away from the rails at the point immediately preceding the fall. That modest outward movement appears to commence at about 16:55:51.20 or thereabouts. It is that movement, in combination with Mr Goode’s horse advancing uncontrolled upon Mr Angland’s horse, that brought them into contact.

128. Seventhly, and consistently with that opinion, I do not accept Mr Killian’s opinion that Mr Goode’s horse was under control just prior to the fall. Mr Cumberland was in a good position to assess this and gave evidence to the contrary. (I do not accept Mr Bartley’s criticism of the value of Mr Cumberland’s possible assistance because he said he “wasn’t watching where Tye’s horse was”. Mr Cumberland said that he was aware when Mr Goode was in trouble and exhibit “E” was tendered by Mr Bartley in his case in any event.) The evidence that Mr Goode’s horse was over racing in the seconds leading up to the fall does not in my opinion leave room for the suggestion that Mr Goode regained control in some very short space before it occurred. Mr Goode was standing very high and somewhat awkwardly in the saddle. This can be seen between 16:55:51.83 and 16:55:54.00, and especially at 16:55:53.61. Mr Killian said, “The jockey was restraining the horse in this instance”, although the precise moment before the fall to which that opinion is referable is not entirely clear. I also prefer the opinion of Mr Burnett that at no stage of the race was Mr Goode “in total control” of his horse.

129. Finally, whatever be the status of the “two lengths” rule, I take it to be the position that no rider is permitted to shift or veer in front of another horse unless or until it is safe to do so, whether that safety margin is measured by a distance of two lengths or some other distance. It will be clear from the views I have already expressed, and I find as a fact, that Mr Angland did not at any time relevantly change direction or veer or shift across Mr Goode’s path when it was unsafe to do so in breach of that rule or unreasonably having regard to the relative positions of each horse.

Negligence - conclusions

130. In my opinion Mr Angland was not negligent in the respects alleged or at all. He did not breach his duty to Mr Goode. He did not ride his horse in a way that caused or contributed to Mr Goode’s fall. Specifically, to the extent, if at all, that Mr Angland’s horse came in towards the rails and closed or narrowed the gap into which Mr Goode was hopeful of improving, it was not causative of what happened to Mr Goode. The fall was caused, despite any such lateral movement of Mr Angland’s horse, by Mr Goode’s horse running uncontrolled into the rear of Mr Angland’s horse where the animals’ legs came into contact. In this respect I consider that Mr Burnett’s analysis, explained in evidence before me and referred to earlier, is an accurate encapsulation of what occurred. That is to say, Mr Burnett put the fall down to the fact that at no stage was Mr Goode in total control of his horse, but can instead be seen throughout the race trying to regain it, while continually moving forward and laterally towards Mr Angland’s horse upon the heels of which he eventually, and very unfortunately, ended up.

Contributory negligence

131. At the point when the fall occurred, Mr Goode’s mount was over racing. Despite his attempts to control the horse, he was unable to do so. That was not caused by anything within his control or by anything that should have been within his control. Mr Goode’s horse moved into a position that caused the fall in circumstances where Mr Goode could have done nothing to prevent it from doing so. The fall was neither caused nor contributed to by anything that Mr Goode either did or failed to do.

Civil Liability Act 2002

132. Section 5L of the Civil Liability Act 2002 is in the following terms:

“5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1)    A person (‘the defendant’) is not liable in negligence for harm suffered by another person (‘the plaintiff’) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2)    This section applies whether or not the plaintiff was aware of the risk.”

133. Mr Angland contends that Mr Goode’s injuries resulted from the materialisation of an obvious risk of a dangerous recreational activity. For present purposes that proposition focuses attention upon the meaning of “obvious risk” and “dangerous recreational activity”. These are considered in turn.

Obvious Risk

134. It was not contended by either party that horse riding in general or professional horseracing in particular did not each carry in varying degrees a risk of injury or even death from a fall or that such risks were not obvious. That is to my mind unsurprising. Both the risk that a rider might fall from a horse and the risk that serious injury might be caused by the fall are obvious risks of riding a horse in almost any situation. If either party had sought to contend otherwise I would have rejected the contention.

135. More fundamentally, “obvious risk” is defined in s 5F of the Civil Liability Act, which puts the issue beyond controversy: Section 5F is as follows:

“5F Meaning of ‘obvious risk’

(1)    For the purposes of this Division, an ‘obvious risk’ to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2)    Obvious risks include risks that are patent or a matter of common knowledge.

(3)    A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4)    A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.”

Dangerous Recreational Activity

136. In a related sense, neither party sought to argue that horse riding in general or professional horseracing in particular were not also dangerous. As much flows from a recognition of the magnitude of the risk of falling or being thrown from a horse, seen as a function of the likelihood of the occurrence of the risk and the magnitude of the consequences if the risk eventuated. The attention of the parties was instead directed to the concept of what is involved in the concept of a recreational activity.

137. In Dodge v Snell [2011] TASSC 19 the Court concluded that “recreational activity” did not include professional sports. That conclusion was arrived at notwithstanding that the definition of recreational activity expressly includes “any sport”, because it was assumed that the legislature could not have intended to deprive employees of rights to sue their employers. Mr Angland contended that a similar concern was not in New South Wales deserving of an equivalent recognition. This was because the parliament of this State has demonstrated considerably less concern for the common law rights of injured workers. Mr Angland also contended that it was difficult to accept that the legislature intended to abrogate all rights for non-professional participants in sports involving a significant risk of physical harm but to maintain full common law rights for employees who, like Mr Goode, have the protection of workers compensation rights and private disability insurance. In construing the section, the general legislative purpose of the provision is relevant: Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; (1988) 194 CLR 355 at [69]. To the extent that it is necessary for me to do so, I respectfully disagree with the Tasmanian decision: having regard to their ordinary meaning, the words in the equivalent New South Wales provision do not permit of such a conclusion.

138. Section 5K of the Civil Liability Act defines “dangerous recreational activity” as a recreational activity that involves a significant risk of physical harm. The same section defines “recreational activity” as follows:

“‘recreational activity’ includes:

(a)    any sport (whether or not the sport is an organised activity), and

(b)    any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c)    any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.”

139. It is apparent that a consideration of whether or not professional horseracing is or is not a dangerous recreational activity is not limited to a construction of that compound expression. That is at least clear, if it were not otherwise, from the fact that both “dangerous recreational activity” and “recreational activity” are separately defined in the Act.

140. Mr Angland’s short but principal proposition is that horseracing is a sport and that the definition of recreational activity includes any sport. No distinction is drawn between a professional sport and any other.

141. Mr Goode emphasised the concept of “enjoyment, relaxation or leisure” and relied upon what was said by Ipp JA in Belna Pty Ltd t/a Fernwood Fitness Centre Parramatta v Irwin [2009] NSWCA 46 at [13] and [15] as follows:

“[13] As regards sub-paragraph (a) of s 5K, the Oxford English Dictionary contains many definitions of ‘sport’. Perhaps the most apposite in the context of the statute is ‘participation in activities involving physical exertion and skill’. I would add to this definition the element of participation in those activities for purposes of enjoyment, relaxation or leisure, as s 5K provides. The exercise program undertaken by Ms Irwin involved participation in activities of that kind and, according to ordinary English usage, fell within the meaning of ‘sport’.

…

[15] In examining the three sub-paragraphs of s 5K, I express no opinion as to whether the definition of ‘recreational activity’ in the section is intended to be exhaustive.”

142. Mr Goode also referred to Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361. In that case Gleeson JA said this:

“[100] The respondent submitted that the activity of teaching motorcycling skills was a serious business and that such instruction was not a recreational activity. In my opinion, this submission should be rejected. The respondent was engaged in a recreational activity.

[101] First, it will be observed that the expression ‘recreational activity’ is broadly defined in inclusive terms in s 5K of the Civil Liability Act. Although in Belna Pty Ltd v Irwin [2009] NSWCA 46, Ipp JA (at [15]) (McColl JA and Handley AJA agreeing) refrained from expressing an opinion as to whether the definition is intended to be exhaustive, it is unnecessary, in the present case, to look beyond the express terms of the definition.

[102] Secondly, the emphasis in the definition in s 5K is on engaging in the relevant pursuit or activity for the purposes of enjoyment, relaxation or leisure.

[103] Thirdly, the goal of the activity is relevant in determining whether the activity is or is not a recreational activity: Belna Pty Ltd v Irwin at [14]. In that case, Ipp JA (McColl JA and Handley AJA agreeing) relied upon a questionnaire in which the plaintiff described her short-term goals in undertaking the exercise program as being to ‘enjoy life’ as a basis for finding the program fell within s 5K(b) of the definition of ‘recreational activity’.

[104] Fourthly, the respondent submitted that regard must be had to the particular activities engaged in by the plaintiff at the relevant time. This may be accepted. The respondent’s purposes in undertaking the course were conceded on appeal to be relevant…There was a finding by the primary judge (at [24]) that the respondent wanted to update his skills to become more efficient in cornering when undertaking recreational rides with his wife on weekends. The particular activity engaged in by the respondent at the relevant time was practising a cornering drill on the Eastern Creek racetrack. The fact that the drill was preceded by classroom tuition and that one of the teachers was following on the track behind the respondent does not detract from the ordinary and general description of motorcycle riding at a racetrack as being a ‘recreational activity’. The respondent had been riding motorbikes for about 42 years. His aim in undertaking the Level II course was to obtain skills to equip him for the enjoyment of leisure-time activities when riding on country roads.

[105] In my view, the respondent was clearly engaged in the activity for enjoyment or leisure within the definition of ‘recreational activity’ in s 5K(b).”

143. There is in my view an immediate tension between those cases that emphasise the recreational element of the activity on the one hand and the anodyne and uncoloured definition of recreational activity as including any sport on the other hand. It is difficult to see how a professional activity, sporting or otherwise, can be considered to be something engaged in for enjoyment, relaxation or leisure. That is Mr Goode’s point. By the same token, it is also difficult to see how the ordinary meaning of the words “any sport” does not include professional sport. Indeed, the reference to “any sport” in s 5K(a) is unique in that it does not contain any reference to the words enjoyment, relaxation or leisure that is contained in s 5K(b) and (c). That is Mr Angland’s point.

144. Neither of the cases to which Mr Goode has drawn my attention deals with what is or what is not a sport. Each case was concerned with the question of whether or not a particular activity was a recreational activity. For better or worse, once it is accepted that horseracing is a sport, a matter about which minds might legitimately differ, but which was never put in issue before me, s 5K(a) of the Act seems to be unanswerable. The definition of recreational activity in a way that includes “any sport” leaves no room for an argument that relevantly enlivens the distinction between sport that is undertaken or pursued for enjoyment, relaxation or leisure and sport that is undertaken or pursued as a profession or occupation.

145. Is there room for contending that professional horseracing is not a sport? Sport can be defined as an activity involving physical exertion and skill in which an individual or team competes against another or others for entertainment or enjoyment and/or as a job. Horseracing is sometimes described as the sport of kings. I am unaware of any definition of sport that limits it to purely recreational or leisure activities or that excludes professional sport.

146. In my opinion, Mr Goode suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity so that s 5L of the Civil Liability Act operates to exclude Mr Angland’s liability in this case.

Conclusion on liability

147. It follows that Mr Goode’s claim fails. There should be a verdict for Mr Angland.

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Decision last updated: 22 July 2016