Peter John Cook v Australian Capital Territory Racing Club Incorporated and Barry Lawson and Robert Lindsay Charley in his capacity as chairman of the Australian Jockey Club

[2001] ACTSC 106

Cook v ACT Racing Club Inc & Lawson & Charley in his capacity as Chairman of the Australian Jockey Club [2001] ACTSC 106 (16 November 2001)

Last Updated: 29 January 2002

PETER JOHN COOK v AUSTRALIAN CAPITAL TERRITORY RACING CLUB INCORPORATED and BARRY LAWSON and ROBERT LINDSAY CHARLEY in his capacity as chairman of the AUSTRALIAN JOCKEY CLUB [2001] ACTSC 106 (16 November 2001)

CATCHWORDS

NEGLIGENCE - jockey suffered myocardial infarction after using sauna at racecourse in order to lose weight to qualify for ride - whether myocardial infarction precipitated by dehydration - whether racing club negligent in setting low weights - whether negligent in providing sauna for use by jockeys to lose weight by dehydration - whether negligent in failing to warn of danger - whether arrangements for provision of medical treatment inadequate - whether undue delay in taking the plaintiff to hospital.

DAMAGES - loss of earning capacity by outstanding jockey - need to balance offsetting contingencies - whether injuries caused by subsequent fall from horse novus actus interveniens or properly attributable to weakness caused by myocardial infarction - whether full amount of compensation payments for injuries sustained in subsequent fall should be taken into account - whether wages paid by plaintiff to wife for keeping records and banking fees should be taken into account - allowance for potential loss of profits in future business as trainer.

Supreme Court Act 1933, s 69

Lipman v Clendinnen[1932] HCA 24; (1932) 46 CLR 550

Voli v Inglewood Shire Council[1963] HCA 15; (1963) 110 CLR 74

Australian Safeway Stores v Zaluzna(1987) 162 CLR 479

Parramatta City Council v Lutz(1988) 12 NSWLR 293

Northern Sandblasting Pty Ltd v Harris(1997) 71 ALJR 1428

Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 176 4LR 411

Brian v Maloney (1995) 182 CLR 609

Rogers v Whitaker[1992] HCA 58; (1992) 175 CLR 479

Rosenberg v Percival[2001] HCA 18; (2001) 178 ALR 577

March v Stramare[1991] HCA 12; (1991) 171 CLR 506

Chappel v Hart (1998) 195 CLR 232

Cachia v Isaacsand Ors(1985) 3 NSWLR 366

Blair v Curran[1939] HCA 23; (1939) 62 CLR 464

Egri & Anor v DRG Australia Ltd (1989) 19 NSWLR 600

Hellsing v British Aerospace Australia Ltd[2001] ACTSC 98 (17 October 2001)

Bennett v Minister of Community Welfare[1992] HCA 27; (1992) 176 CLR 408

Mahony v J. Kruschich (Demolitions) Pty Ltd and Anor[1985] HCA 37; (1985) 59 ALJR 504

Husher v Husher & Anor [1999] HCA 47; (1999) 197 CLR 138

Conleyas executor of estate ofGoatley v Minahan[1999] NSWCA 432 (25 November 1999)

Adams v Ascot Iron Foundry Pty Ltd(1968) 72 SR (NSW) 120

Jobling v Associated Dairies Ltd[1981] UKHL 3; [1982] AC 794

Hood Constructions Pty Ltd v Nicholas(1987) 9 NSWLR 60

Manser v Spry[1994] HCA 50; (1994) 181 CLR 428

Harris v Comnmercial Minerals Ltd [1996] HCA 49; (1995) 186 CLR 1

No. SC 724 of 1991

Judge: Crispin J

Supreme Court of the ACT

Date: 16 November 2001

IN THE SUPREME COURT OF THE )

) No. SC 724 of 1991

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PETER JOHN COOK

Plaintiff

AND AUSTRALIAN CAPITAL TERRITORY RACING CLUB INCORPORATED

Defendant

AND BARRY LAWSON

First Third Party

AND ROBERT LINDSAY CHARLEY in his capacity as chairman of the AUSTRALIAN JOCKEY CLUB

Second Third Party

Judge: Crispin J

Date: 16 November 2001

Place: Canberra

ORDER

THE COURT ORDERS THAT:

1. The parties have liberty to bring in short minutes of orders giving effect to the findings contained in these reasons for judgment.

2. The parties have liberty to approach the list clerk with a view to having the matter re-listed at short notice for the purpose of argument on any unresolved issues including interest and costs.

1. 1. This is an action for damages for personal injury consisting of an acute anterior myocardial infarction allegedly suffered by the plaintiff as a result of the negligence of the defendant.

2. Third party claims instituted by the defendant were subsequently dismissed by consent but the action by the plaintiff duly proceeded to trial.

THE INCIDENT

3. The plaintiff was a leading professional jockey who had been engaged to ride horses at a race meeting conducted by the defendant in Canberra on 3 March 1991, which included the Black Opal Stakes. The weights which the horses were to carry had been predetermined, with some races to be conducted on a handicap basis, and the Black Opal Stakes to be conducted on a set weight basis. The plaintiff had agreed to ride horses in various races at different weights and was due to ride in the seventh race at a weight of fifty-one kilograms, which was lower than the weights at which he had agreed to ride in any of the earlier races. After the second race he went to the jockey's room with the intention of using the sauna in order to reduce his weight. He weighed himself on the scales just outside that room.

4. At about 1.15 pm the plaintiff entered the jockey's room, took off his clothes and went into the sauna. He understood that he needed to lose between half a kilogram and one kilogram. Between about 1.35 pm and 1.40 pm he began to belch uncontrollably and within about another minute began to feel some "tightening" in his chest. That feeling intensified and at about 1.43 pm he left the sauna and told another jockey, Mr Kevin Sweeney, "Get the doctor. I'm in serious trouble". At about 1.44 pm he experienced acute nausea and went to the toilets. He began to dry retch violently and broke out in a cold sweat. He then went back to the jockey's room. Mr Sweeney returned at about 1.47 pm and a brief conversation ensued. The plaintiff told him to get the doctor immediately and said that he was having a heart attack. Mr Sweeney left to do so and the plaintiff lay on the floor on his back. By this time feelings of pain, tightness and a crushing sensation in the chest were increasing.

5. At about 1.50 pm a man in a suit, who I am satisfied was Dr Cassar, came into the jockey's room to see the plaintiff. Dr Cassar was a member of the Committee of the ACT Racing Club and one of its medical officers. Two ambulance officers arrived almost immediately thereafter and one lifted the plaintiff from the floor onto the cot in the weighing room. Dr Cassar asked the plaintiff whether he had come out of the sauna. The ambulance officer's records establish that an ECG monitor was attached at 1.55 pm and that his pulse, blood pressure, skin colour, respiration rate and level of consciousness were all recorded. The plaintiff experienced a recurrence of nausea and an ambulance officer helped him sit up and put a towel in front of him. The plaintiff's hands were "shrivelled and very pale". Anginine was administered at 1.58 pm, and at 2.00 pm a cannula was inserted and a 5 per cent dextrose solution was administered at twelve drops per minute to keep the line open. About 2.02 pm the plaintiff started to feel pain and tingling in his arms and hands but was left alone on the bed. Another jockey, Mr Bertie O'Brien, saw the plaintiff lying in a foetal position, doubled up, moaning and grey in colour. At some stage Dr Keaney, a specialist intensivist, who had attended the races as a member of the public also saw him. Dr Keaney rang the Royal Canberra Hospital to inform them that the plaintiff was to be taken to hospital and subsequently went with him in the ambulance.

6. For reasons that were never satisfactorily explained, the ambulance officers in attendance did not take the plaintiff directly to hospital, but at 2.05 pm booked another ambulance to come to the racecourse for that purpose. The records establish that that ambulance arrived at the racecourse at 2.11 pm though it apparently took them about another three minutes to make their way to the jockey's room. The plaintiff was placed on a trolley at about 2.15 pm and subsequently wheeled out to the ambulance which had been parked a considerable distance from the jockey's room. The ambulance departed at 2.26 pm and arrived at the Royal Canberra Hospital Accident and Emergency Ward at 2.40 pm.

7. Following the plaintiff's arrival at hospital, his pulse and blood pressure were recorded at 2.50 pm. His haematocrit and platelet levels were measured at 3.00 pm and he started receiving an infusion of Streptokinase at 3.20 pm. Subsequent tests confirmed that the plaintiff had suffered a myocardial infarction and, despite the administration of streptokinase and the medical treatment that followed, he has plainly been left with a significant level of disability.

8. The defendant was clearly the occupier of the land comprising the racecourse and the ancillary buildings and facilities and had clearly organised and promoted the race meeting. However it was not established whether the races were actually conducted under its authority rather than the authority of some other body such as the Australian Jockey Club ("AJC").

LIABILITY

9. Mr Bartley QC, who appeared with Mr Toomey for the plaintiff, submitted that myocardial infarction had been caused by a thrombosis in the left descending artery of the heart as a consequence of increased blood viscosity due to dehydration. The dehydration had been brought about by the plaintiff's use of the sauna in an endeavour to reduce his weight to the level set for the horse he was due to ride in the seventh race.

10. Mr Bartley argued that the injury was attributable to the defendant's negligence. It had been negligent for the defendant to set riding weights at levels which it must have known were so low that jockeys would be required to reduce their weight by means of diuretics and/or use of the sauna. In particular, it had set the riding weight for the horse the plaintiff was due to ride in the seventh race at a level so low that he or any other jockey would have been likely to have found it necessary to resort to such measures to sufficiently reduce his or her weight. More generally, he submitted that the defendant and other racing authorities had failed to heed warnings about the risks involved in requiring people to lose weight in that manner, and to adjust riding weights from levels prevailing in earlier years to those commensurate with the current weights of jockeys. It had provided the sauna for use by jockeys, though it knew, or ought to have known, that dehydration due to the use of a sauna could cause coronary thrombosis and other health risks, and that jockeys were likely to use the sauna for the express purpose of becoming dehydrated. Having done so, it had failed to warn jockeys of the risks. It had also failed to provide a ready means of summoning assistance in the event of a jockey becoming suddenly ill, and it had failed to ensure that a paramedic or some other person with appropriate medical training was on hand to deal with emergencies. When the plaintiff became ill, the defendant had failed to provide immediate re-hydration and medical care and had failed to ensure that he was promptly transported to hospital. Indeed, it had caused or permitted an ambulance to remain at the course, leaving the plaintiff to wait until another ambulance could be obtained. Mr Bartley also maintained that the defendant was vicariously liable for the negligence of Dr Cassar, who was a committee member and medical officer of the defendant, in failing to contact the hospital by telephone so that a drug, Streptokinase, could be administered immediately upon his arrival.

11. Mr Williams QC, who appeared with Mr Crowe for the defendant, submitted that his client had owed no duty of care to the plaintiff, or alternatively that any such duty had been of limited scope. He pointed out that the plaintiff had not been employed by the defendant but had, in effect, conducted his own business as a professional jockey and that the defendant's control over him was limited. In particular, it was the AJC rather than the defendant that set the rules of racing and he was free to determine for himself whether to ride at a particular weight. There had been no relationship between the parties of a kind that might have supported the implication of a duty on the part of the defendant. Furthermore, the plaintiff had been engaged in the racing industry for many years and had frequently used saunas at racetracks for the purpose of losing weight. He should be taken to have been well aware of the risks. The defendant should not be held liable for any injury which he may have sustained as a result of his decision to use the sauna as a means of losing weight in order to meet commitments which he had chosen to undertake.

12. These contentions were persuasively argued. Volenti non fit injuria was not pleaded as a defence and the mere fact that the plaintiff was an independent professional sportsman could not have absolved the defendant of any duty of care which it might otherwise have owed to him. However, as Mr Williams observed, any contentions as to the nature and extent of a duty of care that may have been owed by the defendant to the plaintiff in these circumstances should be approached with some measure of caution.

Breach of a duty of care

13. Mr Bartley relied substantially on the duty of care that an occupier of premises owes to lawful entrants and cited such authorities as Lipman v Clendinnen[1932] HCA 24; (1932) 46 CLR 550; Voli v Inglewood Shire Council[1963] HCA 15; (1963) 110 CLR 74; Australian Safeway Stores v Zaluzna(1987) 162 CLR 479; Parramatta City Council v Lutz(1988) 12 NSWLR 293; Northern Sandblasting Pty Ltd v Harris(1997) 71 ALJR 1428; and Modbury Triangle Shopping Centre Pty Ltd v Anzil& Anor(2000) 176 ALR 411. The defendant clearly conducted the race program and I have no doubt that it was an occupier of the racecourse and adjacent facilities, including the jockey's room and sauna.

14. In some circumstances a duty of care may also arise from the undertaking of a potentially dangerous operation or activity, irrespective of whether the organisers could fairly be regarded as occupiers of the land on which the activity is conducted. For example, the organisers of the famous "Redex Trial" conducted in the 1950s or the "Thunderball Run" conducted more recently in the Northern Territory could scarcely have claimed to have owed no duty of care to participants merely because the cars were driven on public roads though, of course, the nature and extent of any such duty would have been limited.

15. In any event, I have no doubt that in undertaking the conduct of the race meeting at the course which it occupied, the defendant assumed a duty to take reasonable care for the safety of jockeys engaged to ride at that meeting.

16. The scope of any such duty will depend upon the circumstances. Put shortly, the question is whether the defendant owed a duty "of a kind relevant to the harm which befell the plaintiff": Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 176 4LR 411 per Gleeson CJ at 415.

17. For present purposes I would be prepared to assume that the scope of the defendant's duty did not extend to the rules by which the races were conducted, though, as a matter of principle, an occupier or promoter may not be absolved from liability merely because the relevant activity has been conducted in accordance with rules set by a third party.

18. However, the plaintiff relied upon an alleged duty of care in relation to the provision of the sauna and it was not suggested that there was anything in the rules of racing that might have displaced any such duty. It was not provided as a mere recreational facility and Mr Bartley submitted that, even if the defendant had no control over the setting of weights limits, it must have known that jockeys commonly resorted to dehydration in order to meet those limits and that they used saunas for that purpose. Indeed, the inference that the sauna was provided for that purpose seems inescapable. He pointed to expert evidence that dehydration was capable of causing a thrombosis and hence precipitating a myocardial infarction, and submitted that by March 1991 these risks were reasonably foreseeable. He argued that in these circumstances the defendant had owed the plaintiff and other jockeys a duty to exercise reasonable care for their safety