Sestich v Van Heemst

[2006] WADC 23

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   SESTICH -v- VAN HEEMST [2006] WADC 23

CORAM:   MULLER DCJ

HEARD:   16-20 & 23-25 JANUARY 2006

DELIVERED          :   24 MARCH 2006

FILE NO/S:   CIV 1066 of 2003

BETWEEN:   MARK SESTICH

Plaintiff

AND

TED VAN HEEMST
Defendant

Catchwords:

Negligence - Liability of occupier - Injury to plaintiff while riding racehorse on training track at Ascot - Collision with running rail - Whether defendant negligent in installing rigid tubular steel rail - Suitability of alternative flexible aluminium rail - Causation - Whether plaintiff's injuries could have been avoided or minimised by use of alternative type of running rail - Voluntary assumption of risk - Measure of damages for injuries to leg and arm - Contribution of pre-accident injuries to plaintiff's incapacity to ride or find alternative employment - Damages for past and future loss of earning capacity - General damages

Legislation:

Western Australian Turf Club Act 1982

Result:

Plaintiff's claim allowed

Representation:

Counsel:

Plaintiff:     Mr B G Bradley

Defendant:     Mr P B O'Neal

Solicitors:

Plaintiff:     Bradley & Bayly

Defendant:     Downings Legal

Case(s) referred to in judgment(s):

Bennett v Minister for Community Welfare (1992) 176 CLR 408

Fox v Wood (1981) 148 CLR 438

Gehri v Capital Racing Club Inc, Ohio Court of Appeals, unreported, 1997 WL 324175, June 12 1997

Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

Maynard v Racing Penalties Appeal Tribunal of Western Australia (1994) 11 WAR 1

Standfield v Uhr & Anor (1964) Qd R 66

Watts v Rake (1960) 108 CLR 158

Wyong Shire Counsel v Shirt (1980) 146 CLR 40

Case(s) also cited:

Bowater v Rowley Regis Corporation [1944] 1 KB 476

Chappel v Hart (1998) 156 ALR 517

Elders v Devereux, unreported; FCt SCt of WA; Library No 980183; 9 April 1998

Fox v Percy (2003) 214 CLR 1181

Graham v Baker (1961) 106 CLR 340

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

Husher v Husher & Anor (1999) 197 CLR 138

Insurance Commissioner v Joyce (1948) 77 CLR 39

Jeffries v Fisher [1985] WAR 250

Jobling v Associated Dairies Ltd [1982] AC 794

Johnston v Frazer (1990) 21 NSWLR 89

Kliese v Pelling, unreported; SCt of Qld; BC9802190; 4 June 1998

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Pene v Murphy [2004] WASCA 103

Roggenkamp v Bennett (1950) 80 CLR 292

Rootes v Shelton (1967) 116 CLR 383

Smith v Charles Baker & Sons [1891] AC 325

Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39

Thomas v O'Shea (1989) Aust Torts Reports 80-251

Vairy v Wyong Shire Council [2005] HCA 62

Woods v Multi-Sport Holdings Pty Ltd [2000] WASCA 45

Wynn v New Sourth Wales Insurance Ministerial Corporation (1996) 70 ALJR 147

1. MULLER DCJ:  In this action the plaintiff is claiming damages from the defendant for injuries suffered by the plaintiff in an accident which occurred through the alleged negligence of the defendant while the plaintiff was riding a horse on a training track at the Ascot Race Course which is owned by the defendant.  The defendant has denied liability for the plaintiff's injuries.

Circumstances of accident

1. On the early morning of 11 April 2002 the plaintiff was doing track work at Ascot Racecourse on a horse named "Struck Oil".  He began work on what was described as the warm‑up track before taking the horse to a training track called the big sand track.  He allowed the horse to gallop and guided it to a point approximately three horses' width off the outside rail as the rules required for fast horse work.  At the 600 metre mark he stepped up the horse's pace to a working gallop and entered the straight still approximately three horse's width from the outside rail.  At this point he felt the horse slow down significantly and begin to stumble.  "Struck Oil" veered towards the outside rail and its right shoulder struck the horizontal outer rail at an angle of approximately 30 degrees.  After impact the plaintiff described how the horse slid along the rail and his right ankle was crushed between the horizontal rail and the side and rear quarters of the horse.  The impact flung him off the horse over the outer rail and he struck one of the upright posts with his right arm before falling on his back in the gap between the outer running rail and the rail of the adjoining viscoride track.  Subsequent evidence showed the rail had separated from the post which was bent at a 45 degree angle.  The horse fell onto the surface of the track and was thrashing around.  The plaintiff believed it was going to roll over him and tried to roll over onto his left side away from the animal.  However, he found he could not move his right arm and had to physically grab his right arm with his left hand and pull himself over.  His right leg was also causing him excruciating pain.  He noticed the horse had stopped moving and he rolled back into his original position.

2. At the time of the accident it was still relatively dark.  The plaintiff called out for help and it took approximately 15 minutes for an ambulance to arrive.  He was admitted to the emergency ward at Royal Perth Hospital with a compound fracture of his right leg above his ankle and a fracture of his right upper arm.  He was treated with painkillers and his leg and arm were put in a cast.  He was heavily sedated and was seen the day after the accident by Dr Wren. 

3. The aftermath of the accident was described by Neville Parnham, a leading racehorse trainer, who had been at the track at Ascot at the time and whose horse the plaintiff was scheduled to ride later that morning.  When Parnham and others arrived at the scene of the accident the plaintiff was seen lying on his back in the drain between the big sand track and the adjoining track.  The horse was dead on the track approximately one metre from the outside rail.  Neville Parnham described how the post that had been struck was bent at a 40 degree angle and the horizontal rail had become detached.  The tubular post, which was cemented in the ground, had not moved at its base.  The witness and others attempted to straighten the post and managed to force it into a near vertical position so that the horizontal rail was resting against it.

4. On 12 April 2002 the plaintiff underwent surgery for an Ilazarov frame to be fitted on his right leg and plates inserted in his right arm.  He was subsequently transferred to St John of God Hospital in Subiaco.  After approximately one and a half weeks he regained some mobility and at the end of his stay in hospital was able to walk with the aid of one crutch.

5. Following his discharge the plaintiff said he spent approximately two to three weeks at home in a state of relative immobility.  During this time, when he was either in bed or on the lounge, he was looked after by his partner and his mother who provided him with meals, clothing and attended to all his needs.  He began undergoing physiotherapy three times a week and was driven to the physiotherapist either by his mother or a friend.  This assistance continued for approximately 12 weeks before he finally was able to do things for himself.  During this three week period he claimed that someone was with him each day for approximately four to five hours.

6. In September/October 2002 the frame around his right leg was replaced and subsequently removed in January 2003.  A plaster cast was substituted for the frame and the plaintiff remained in plaster for four months.  It was then he tried riding a horse for the first time but found that the pressure from the stirrups at the point of the actual break in his leg made it too painful.  He underwent further surgery to remove a lump in the area of the break and tried unsuccessfully to ride again only to find that the same pain recurred.  From that time on he did not ride again.

Nature of the running rails at Ascot

1. In his statement of claim the plaintiff alleged that the West Australian Turf Club had installed tubular steel upright posts and tubular steel rails along the outer circumference of the big sand track where his horse collided with the rail.  The upright posts were cemented into the ground.  It was further alleged by the plaintiff that the tubular steel vertical posts and tubular steel running rails on the circumference to the big sand track posed a potential hazard to jockeys riding on that track because the post and rails were not designed to collapse, flex or give way in the event of accidental contact by a horse or jockey thereby increasing the risk of significant injury.  Finally it was alleged by the plaintiff that the West Australian Turf Club knew or ought to have known that the posts and rails presented a real risk of injury.

2. The evidence revealed there were four separate tracks at Ascot at the time of the accident.  The main track, which was grassed, had a fence on the outside perimeter and an aluminium running rail on the inner side of the running surface.  The inner rail consisted of a horizontal aluminium strip or bar raised some distance above ground level and held in position by a series of upright steel posts which were angled away in the form of a goose neck from the horizontal bar.  This meant that the legs of the upright or vertical posts were positioned in the ground outside the horizontal aluminium bar.  In this way the danger of a horse's or jockey's leg making contact with a vertical support was greatly reduced.  The upright posts were secured in the ground by steel pins driven into the base or foot of each upright every three metres.

3. Another feature of the aluminium railing on the inside of the main track was its portability and flexibility.  Not only was the railing capable of being moved inwards or outwards to adjust to wear in the grass track but the aluminium rails were flexible and capable of absorbing an impact or fracturing or breaking if the impact exceeded a certain force.

4. Initially only the inside perimeter of the main track had an aluminium running rail.  Next to the main track was a viscoride track that was used for training purposes.  There were two other tracks inside the viscoride track.  The first was the big sand track where the plaintiff's accident occurred and the second was the little sand track which was also used for training purposes.  Prior to 1983 most of the running rails on these tracks were made of timber except for the aluminium railing on the inner circumference of the main track.  In 1983 the track was redeveloped and the viscoride track added.  The railings were also replaced.  The inside railing on the main track remained unchanged but a tubular steel running rail with tubular steel vertical posts was installed on the outside of the viscoride track.  The inside rail of the viscoride track was similar to that on the main track and consisted of aluminium railing with the goose necked vertical posts.  The only difference was that the posts were concreted into the ground.

5. The inside and outside rails of the big sand track consisted of tubular steel upright posts and a tubular steel horizontal rail.  It is significant that aluminium rails were not used on either the inner or outer circumference of this track.  The little sand track, which was the innermost track running alongside the big sand track, shared the tubular steel rail with the big sand track but had an aluminium running rail installed on its inner perimeter. 

6. The evidence established that throughout Australia aluminium running rails have almost completely replaced the tubular steel and wooden versions.  This is particularly true of racing as opposed to training tracks.  John Jeffs, a racing industry consultant and former manager of several major race courses, who has extensive experience in the racing industry, confirmed that by 2000 aluminium railing had completely replaced tubular steel railing on all racing tracks throughout Australia and in other countries where he had worked as well.  The situation with training tracks was apparently different.  While the witness, John Jeffs, said that by 2000 most of the major courses in Australia had aluminium rails on training tracks a few may have retained timber or tubular steel rails.  The witness went on to say that over the many years he had been involved in the industry, and the close contact he had maintained with track work, he was not aware of any injury to a horse or jockey either in Sydney or Hong Kong as a consequence of a collision with an aluminium running rail.  In his view the dangers to both horses and riders on race and training tracks were the same although he was unable to produce any statistics of the number of accidents that have occurred on either form of track.

7. The significance of the running rails in both racing and track work was emphasised by Luigi Luciani, an experienced racehorse trainer, who operated his own stables and has been training at Ascot for many years.  He described how the running rails were intended to separate the various tracks and to provide a guide to horses being educated in track work.  He also emphasised the protective purpose of the rails both for horse and rider.  In his experience in educating young horses it was not uncommon for the horse to come into contact with the running rail while involved in track work.  The witness described an accident in which he was involved when a younger horse he was training hit one of the solid upright posts on the training tracks and was injured.  He did concede, however, that in track work as opposed to actual racing the chances of a collision were less because the horses being trained would not run as close as possible to the rail and the pressure on both rider and animal would be considerably less.

8. The witness also gave evidence of an accident that occurred on the racing track involving a movable aluminium rail.  He described how one of his own horses ran against an aluminium rail for a distance of approximately 20 metres.  The impact resulted in the rail being dislodged and the horse went through the rail.

9. The plaintiff also led evidence from a consulting engineer, James Van de Meere, who was an expert in the field of design and construction of buildings, hand rails, safety barriers and other safety systems.  Having examined the railing system at the big sand track at Ascot he concluded that the rigid barrier system of the type involved in the accident has a significantly higher level of collision force compared to a flexible system such as the existing aluminium railing on the main track.  Applying the physical criteria described in his report he concluded that a rigid barrier system has a greater potential for injury than a flexible barrier system.  In his report that was tendered in evidence he described the advantages of a flexible barrier system in the following terms:

   "There are a number of flexible barrier systems commercially available which offer a number of distinct advantages over the rigid barrier currently in place on the big sand track.

   These advantages are:

   (a)The rail protrudes into the track past the post thereby reducing the potential for post impact in a collision.

   (b)The system deflects significantly more under impact than the rig post rail system hence reducing the reaction force and thereby the injury potential.  The rigid post and system renders it likely that a rider impacting the rail will slide along the rail until he makes contact with the rigid post.

   (c)The rails are wider and therefore more visible to horses and jockeys."

10. The defendant led evidence to suggest that it was not relevant to compare the steriline aluminium fencing installed on the race track with the rigid system used on the training track.  Geoffrey Murphy, the Track Manager at Ascot Racecourse, emphasised that the steriline rail system used on the inside of the grass race track at Ascot is a movable structure that is shifted after each major race day to prevent wear and tear on the course and to select the best running surface for the day.  He described how the steel uprights were temporarily fixed in the ground by a steel pin that was hammered through the foot of each upright every three metres along the length of the rail system.  He said a similar system was not required with the training track because wear and tear was not a factor and it was unnecessary to move the rails on those tracks.  He also said the main purpose of the rails was to provide a guide for the horses in training and to separate fast from slow work.  He said without the rail system the danger of collision would be very real because the fast horses would be moving along the same section of track as horses being taken through a slower form of exercise or training.

Defendant's knowledge of the alleged hazard

1. In his statement of claim the plaintiff asserted that there was a real risk of injury to a jockey as a consequence of any collision between a horse and the tubular steel rails because the post and rails used at Ascot were not designed to collapse, flex or give way in the event of any accidental contact by a racehorse or jockey.  It was further alleged that the defendant knew or ought to have known that the tubular steel posts or rails presented a real risk of injury.  In support of these allegations evidence was led from two witnesses, Glen McLaren and Tanya Hosford, who had both sustained leg injuries as a consequence of striking a solid tubular steel rail while training a horse on one of the Ascot sand tracks.  The accident involving Glen McLaren occurred on 16 January 1984 when he was riding a horse on the small sand track and the animal collided with the outer tubular pipe railing that separated the small sand track from the big sand track.  The witness described how his foot struck the fence and slid along it until it hit the junction of an upright post and the horizontal rail.  The rail came apart as a result of the force of the impact.  The witness described how he was hospitalised for 45 days and part of his foot had to be amputated.  He said he was never interviewed by any agent or employee of the defendant with a view to ascertaining how the accident had occurred although the evidence did disclose that a sleeve was subsequently inserted in the tubular railing by the defendant to strengthen it.  The other witness, Tanya Hosford, was involved in a similar type of accident on 9 September 1986 while training a horse on one of the sand tracks.  She described how the horse she was riding at a canter veered off to the left and collided with the tubular steel railing on the left side of one of the sand training tracks at Ascot.  Her leg also got trapped between the horse and the railing for some distance and she was thrown over the front of the horse with her leg hitting the clamp on one of the uprights and exposing the bolt holding the top rail onto the upright.  She broke her ankle and sustained nerve and muscle damage that required her to be treated in hospital.  Like the previous witness she was never approached by any agent or employee from the Turf Club to find out how the accident had occurred.

2. Another track rider injured at Ascot in the years preceding the plaintiff's accident was the witness James Lawrence.  He was involved in two separate incidents in 1999 and again in 2002 when he fell off a horse and struck the tubular steel rail surrounding the big sand track.  On both occasions he sustained bruising and had to undergo treatment.  On both occasions he completed an accident report form for the Turf Club but was never approached by an employee of the Club and asked questions about the incident.

3. Two other former jockeys, Wayne Fox and Bernie Ryan, also described accidents in which they had been involved while doing track work on the main sand track.  On 14 May 2004 Wayne Fox was doing track work with a horse at a half pace gallop when the horse suddenly veered, hit the inside tubular steel rail on the big sand track and dislodged the jockey causing him to fall backwards onto the rail.  The rider was injured and hospitalised for 12 days.  Like the others he claimed he was never approached by any Turf Club official in relation to the accident.  Bernie Ryan's experience was different inasmuch as his accident occurred at the Mt Barker racecourse when he severed his hand after coming into contact with the sharp edge of a timber support pole.

1. Less than one year before the plaintiff's accident a track rider named Bree Chisolm was riding a horse at a canter on the viscoride track when the horse unexpectedly left the track through an inside gap leading into the big sand track.  The rider was flung onto the outside rail of the big sand track and broke her wrist and hurt her neck and back.  She was hospitalised and, like the others, said she was never approached by an official from the Turf Club.  On 9 October 2003 she was involved in another accident at the Little Sandown track when her horse ran into an aluminium rail and her leg was trapped between the horse and the horizontal rail.  On this occasion her foot got caught on the upright and was twisted as the horse continued running along the rail.  She suffered a broken leg as a consequence of this accident.

Findings on liability

1. Paragraph 8 of the plaintiff's statement of claim provides as follows:

   8.The accident hereinbefore pleaded and the Plaintiff's pain and injuries were caused by:

   (i)the negligence of the Defendant, the Western Australian Turf Club and their servants and agents;

   (ii)the breach by the Defendant and the Western Australian Turf Club of their duty of care under Section 5 of the Occupiers' Liability Act.

   Particulars of Negligence and Breach of Statutory Duty

   The Defendant and the Western Australian Turf Club and their servants and agents were negligent and in breach of Section 5 of the Occupiers' Liability Act in that they:

   (i)caused and permitted the solid steel running rail and posts to remain in place at the edges of the "big sand track" when in the circumstances it was unsafe to do so;

   (ii)failed to install modern collapsible running rails and posts on the circumference of the 'big sand track' so as to significantly reduce the risk of injury associated with inevitable riding mishaps;

   (iii)in the knowledge that riders had previously suffered severe injuries at Ascot and elsewhere as a result of contacting rigid running rails whilst riding failed to take any or any proper action to reduce such risks for jockeys using the 'big sand track'."

2. In par 6 of the Re‑Amended Defence the defendant says that given the circumstances of the accident there was no action the defendant could reasonably have taken to prevent what happened.  Paragraph 6(a) of the Re‑Amended Defence reads as follows:

   "6A.In further answer to the whole of the statement of claim, the defendant says that if the plaintiff was injured and suffered loss and damage as alleged which is not admitted, and if the defendant was in breach of a duty of care to the plaintiff, which is denied, the injury loss and damage were not caused by, alternatively not substantially caused by, any want of care of on the part of the defendant but were inevitable in all the circumstances.

   Particulars

   (i)At about 4:45 am on 11 April 2005 at Ascot the racehorse "Struck Oil" suffered a heart attack and collapsed and died.

   (ii)Prior to its death Struck Oil had been galloping at a speed of not less than 50 kilometres per hour when it collapsed as a result of the heart attack it had suffered.

   (iii)The plaintiff was at greater risk than the average person of his age and background of fracturing a bone, in that his bone density as about 20% less than average for a person of his background and age.

   (iv)The sheer force with which the plaintiff was thrown from Struck Oil was sufficient for the plaintiff to incur injuries of the nature and extent alleged, regardless of the type of fence used or whether the plaintiff struck any fence."

3. Counsel were agreed that the relevant legal principles applicable in this case were those expressed by the High Court in Wyong Shire Counsel v Shirt (1980) 146 CLR 40 at 47‑48.

   "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

   The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far‑fetched or fanciful is real and therefore foreseeable.  But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

4. The first question that has to be decided is whether an accident of the kind in which the plaintiff was involved was reasonably foreseeable by the defendant.  I am satisfied that a reasonable person in the defendant's position would have foreseen that the rigid tubular running rails on the big sand track posed a real risk of injury to the plaintiff and other jockeys in the event of a collision during training.  The WATC certainly knew there had been other serious accidents involving the rigid rail system on the training track.  The common theme in the accidents involving Greg McLaren, Tanya Hosford, James Lawrence and Bree Chisolm was said to be the rigidity of the rail system on the training track.  While the circumstances of each accident varied I am satisfied that the injuries sustained by each jockey were contributed to by the rigidity of the rail system.  Counsel for the defendant argued against this proposition.  He submitted that the circumstances of each accident were so different that there was simply no theme common to them.  It was emphasised that the McLaren incident led to the solid horizontal rail actually separating while the injury to Hosford was caused by her leg coming into contact with the exposed bolt and clamp on one of the uprights.  I do not believe this argument is valid.  In the accident involving McLaren the likelihood is that the joint of the pipe railing came apart only after the jockey's leg was driven against the rail and slid along it for some distance before hitting the joint and causing the horizontal tubular section to separate.  The other accidents involving the other three jockeys all had a distinct similarity to them.  The potential for serious injury to a jockey coming into contact with the pipe railing was clearly established by these incidents.  The WATC knew what had happened.  The question is whether it ought reasonably to have concluded, first, that the rigid tubular railing was a substantial contributory cause, and second, whether the rigid rail ought to be replaced with a flexible steriline rail.

5. This question of whether there was a practicable and safer alternative to the tubular steel railing was the major issue in relation to liability.  It was argued by the defendant that, notwithstanding the existence of a duty of care, a reasonable man would not have taken any particular steps to respond to the risk of injury because that risk would remain the same whatever system of railing was in use.  Given the speed at which the plaintiff's horse was travelling and the force of the impact upon the railing it was argued that the outcome in terms of injury was likely to have been the same even if flexible aluminium railing had been in place.  In support of this submission the defendant introduced evidence showing the effect on both horses and riders of collisions with aluminium rails.

6. The material tendered by the defendant included a compilation of various races on DVD showing a series of accidents involving collisions between horse and rider with an aluminium or steriline system of railing.  I found it difficult to draw any firm conclusions from this material presented by the defendant.  The circumstances in which the accidents occurred, and the manner in which contact between the horse and the rails took place, were so different in each case that no discernible pattern emerged.  The one thing that can be said is that on each occasion the impact caused the steriline rail to flex or bend and ultimately to come apart.  On most occasions the horse simply ran through the fence and ended up on the adjoining track.  In some instances a section of the broken rail was either propelled or swung back onto the track and into the path of oncoming horses.  The incident involving the horse "Geiger Gift" on 17 June 1998 is an example of this.  In other instances the breakage of the rail has caused the section to be propelled into the adjoining track which, of course, was free of other horses during the course of the race.  An example of this was the incident involving the horse "Keep Me in Mind" on 7 November 2000.  In all the recorded incidents the dangers posed by the separation of the rail are only too obvious and in nearly every case resulted in extremely serious injury, and sometimes death, to either horse or rider.

7. The admitted facts make one point clear.  While flexible and moveable aluminium fencing does give way upon forcible impact the consequences of the rail separating can themselves be hazardous.  The danger of a sharp edge of broken rail penetrating a horse or rider, or a horse or rider coming into contact with an exposed steel upright after the horizontal rail has flexed and broken, is very real.  The visual evidence also demonstrated only too clearly the potential dangers to horses and jockeys on an adjoining track if an impact of this type seen on the DVD took place during training.

8. I unhesitatingly accept that aluminium or steriline fencing can be potentially hazardous to both horse and rider if contact occurs during a race.  But, as the evidence overwhelmingly confirms, track work is quite different.  The witness Geoffrey Murphy, who has been the Track Manager at Ascot Racecourse for approximately 12 years, conceded this point.  He agreed that in a race many of the horses will run as close as possible to the rail and contact between the horse and rider and the running rail is common place.  He also conceded in cross‑examination that the steriline aluminium rail generally flexes upon such contact and allows the horse and rider to continue without serious consequences.  He also pointed out that in competitive racing horses on the inside rail frequently come under pressure from horses outside them and are forced into the rail while galloping at speed.  The situation in track work, however, is substantially different.  The witness agreed in cross‑examination that in track work horses work in smaller groups, usually not exceeding four, and usually there is substantial separation between one group of horses and the group following behind.  Another major difference is that in track work there is no need for either rider or horse to hug the running rail.  For these reasons the witness, Geoffrey Murphy, conceded that the risk of an accident in track work is not as high as the risk of an accident in a race.  He also agreed he had been responsible for the installation of the aluminium rail on the inside of the viscoride track at the time that track was laid approximately six years ago.  He conceded that there was no evidence that the steriline rail on the inside of the viscoride track had ever contributed to any accident since the date of its installation.

9. There was, in fact, no evidence of any accident in training at Ascot involving a steriline rail.  On the contrary the evidence showed that over 20 years of use, both at Ascot and Belmont, there is no single instance of an accident occurring during track work involving the steriline rail system.  The only accident of which evidence was led involved the jockey Bree Chisolm at Little Sandown.  Counsel for the plaintiff conceded that accidents of this kind are bound to occur and that the steriline system cannot provide a complete protection to jockeys and horses during training runs.  But, it was submitted, the sheer volume of use of those tracks at Ascot with a steriline rail for training purposes over the last 20 years, and the absence of any accident at all involving that railing system, is itself compelling evidence of the safety of the system.

10. The conclusion I have drawn from this evidence, together with the other material presented to the Court, is that a comparison between racing and track work is simply not valid in the context of evaluating the safety merits of the different types of rail systems available.

11. Further evidence in support of the proposition that the outcome of the plaintiff's accident would have been no different if a steriline rail had been in place came from an expert witness called by the defendant.  Ronald Mark Gillies, a specialist in the field of bio‑medical engineering, examined the galvanised pipe system used on the big sand track.  He also took measurements of steriline running rails and posts at one of the AGJC Randwick Racecourse's training tracks.  Applying the scientific criteria outlined in his report he concluded that an aluminium rail deforms at a relatively low energy level of 120 joules in a horizontal direction.  He explained this by saying that the rail actually bends a distance of 17 centimetres with a horizontal force applied at an angle of 90 degrees.  The degree of force required to bend the rail will, according to the expert, vary according to the position on the rail where the force is exerted.  If a horizontal force is exerted against the rail at its centre point between two uprights a force of 1.5 tonnes is required to force the rail to bend a distance of one metre.  With that degree of force, however, Mr Gillies explained that the rail would flex beyond its capacity and become detached from the supporting upright.

12. If the horizontal force were applied to a point on the rail where the upright joins it significantly more force is required to flex the rail because it is stiffer or more rigid at this juncture.

13. Apart from considering the application of horizontal force to a steriline rail the witness also considered the effect of vertical force to the upper surface of the rail and said that the rigidity of the rail at this point was much greater meaning that considerably more force would be required to have any effect upon the rail.

14. Mr Gillies went on to hypothesise what might happen to a horse and rider upon contact with a steriline rail.  For the purpose of this exercise he had to rely upon a number of postulated factors such as weight, speed and the angle of impact.  Leaving to one side his evidence in relation to an impact involving galvanised pipe rail, and focusing exclusively on what he said in relation to a collision with an aluminium rail, he asserted that, based on a speed of 13.3 metres per second, a jockey weighing 52 kilograms and striking the steriline rail horizontally at an angle of 90 degrees would do so with an accumulated energy of 4643 joules.  The energy lost in the impact between the jockey's leg and the steriline rail would, according to the witness, be only 120 joules and the yield on this impact would be the equivalent of a load of 357 kilograms.  In his report tendered in evidence (exhibit 34) Mr Van Heemst made the following observation in relation to the probable outcome of this accident.

    "Due to the low force of this impact by his leg on the aluminium horizontal rail the impact would have caused soft tissue damage (ie bruising) and may not have caused a fracture to an average density long bone."

15. The witness went on to say, however, that an aluminium rail deforms and fails at a very low energy of approximately 120 joules and that the steriline railing joint would have failed at the equivalent load of 356 kilograms with the result that the jockey would have gone through the aluminium rail, losing only 120 joules of his energy, and continued to be propelled on with a remaining energy level of 4514 joules.  He then purported to prognosticate what line of travel the jockey's body would take and what other obstacles it would hit in that line of travel. 

16. While I unhesitatingly accept the scientific data and the conclusions drawn from such material by the expert witness, particularly in relation to the force that would be required to cause a steriline rail to separate, and also as to the energy levels that would be generated by a jockey of the same weight as the plaintiff coming into contact with steriline rails and the effect that would have upon such a railing system, I am unable to accept his evidence as to what line of travel the jockey's body was likely to follow after impact, what objects it might strike during that line of travel or the likelihood of a certain type of injury following the impact.  Examples of this type of reasoning can be found in pars 33‑39 of the report.  I might add that other sections of the report are also based upon postulations which I believe cannot be safely related to the facts and circumstances of the accident involving the plaintiff.

17. When it was pointed out to Mr Gillies that the plaintiff's horse had apparently been slowing down significantly before the impact occurred he prepared a second calculation of what would happen if a 52 kilogram jockey struck the same rail at a speed of six metres per second.  Even at that significantly lower speed the expert concluded that the rail would deform and fail at the joint resulting in the jockey going through the rail and possibly onto the ground or landing on the rail itself resulting in a possible fracture.  He went on to add that if both horse and rider went through the rail there was a possibility that the jockey would collide with the rail of the adjacent track and possibly go through that rail as well.

18. This evidence, it was suggested by the defendant, demonstrated there was no significant difference between the steriline and rigid tubular systems in terms of the jockey's safety.  Both systems, it was argued, presented the same degree of risk of harm of bone fracture upon impact.

19. While the steriline system is not a complete answer to the safety of jockeys and horses on the training track I am satisfied it is substantially safer than the rigid tubular metal system.  It has been used by other trainers as, for example, Peter Walsh, on tracks used for training.  It is also significant that Geoffrey Murphy, the track manager at Ascot, installed a steriline system with goose necked uprights cemented into the ground on the then new viscoride track.  When asked why he had selected that type of railing he said he considered it the best and funding was available.  I have already referred to the volume of training work that must have been done on the main track at Ascot with the steriline fence without incident.  To this must be added the training work done on the viscoride track which also has a steriline rail.  Another very significant factor is the evidence of the expert, Ronald Gillies, that a steriline rail was capable of flexing as much as 17 centimetres with relatively minor force as might be expected if a horse and rider side swiped the horizontal rail in what might be described as a glancing blow.  In that type of situation, which could reasonably be expected to occur with some degree of frequency, the expert agreed that the steriline rail would flex without separating.

20. One of the most convincing pieces of evidence showing the flexibility of the steriline system was the DVD of a race at Ascot (exhibit 4) in which the horizontal rail is seen to flex repeatedly upon frequent contact by various horses running in that race.  It is also significant that, despite repeated contacts with the rail, the race was completed without mishap. 

1. On this and the other evidence available I am satisfied on the balance of probabilities that a flexible rail system, such as the steriline railing, would be significantly safer on the training track for both jockeys and horses.  I am also satisfied to the required standard that, had steriline rails with fixed uprights embedded in concrete been in place on the big sand track at the time of the accident, the likelihood is that the plaintiff would not have sustained injuries anywhere near as serious as the ones he actually suffered.  With an impact at an angle of about 30 degrees, and the horse slowing down quite significantly, the likelihood of any serious fracture, even on the evidence of the defendant's own expert, would have been substantially less than with a rigid structure.  While an injury, even a serious one, cannot be positively excluded, I find that it would have been far less likely to have occurred if the rail had been flexible and capable of absorbing some if not most of the impact.

2. Counsel for the defendant submitted that, even on the assumption that a reasonable person would be aware that steriline railing is less likely to lead to bone fractures upon contact, the magnitude of the risk to horse and jockey on the training track, compared with the inconvenience of taking remedial action, together with other dangers such action might introduce, meant that the rigid tubular rail system should be left in place.  Once again reliance was placed on the DVD showing accidents on racing tracks with the steriline rail system.  The evidence certainly showed that steriline rails can buckle and give way at the joints and that sections of the detached rail can become airborne and either pivot on the upright into the track itself and possibly into the path of oncoming horses or get thrown onto the adjacent track.  I accept the evidence shows this does happen but only on the race track.  There was no direct evidence that the use of a steriline rail system on a training track would cause similar dangers.  I have already said that the difference between racing and training is very marked and very different considerations apply to each.  The likelihood of the problems involving the steriline rails that occurred on the race track as shown on the DVD being repeated on a training track where the horses are running together in much lower numbers with greater separation between groups of riders and not necessarily hugging the rail as they would in competition is much less.  As to the practicability of installing a steriline rail system there is no evidence that the substitution of steriline rails for the galvanised piping system would be unduly expensive or beyond the capacity of the WATC.  The argument that it would be extremely inconvenient, and that the training tracks would have to be closed while work was being done, is undermined by the fact that the necessary work could take place during that part of the season when the racecourse was closed.

3. I find that the defendant owed the plaintiff a duty of care to avoid exposing him to the risk of injury while using the training track and that the WATC breached this duty by failing to install a flexible rail system, such as the steriline system currently in use on the viscoride track, at the time of the plaintiff's accident.

Causation

1. I have to a certain extent already dealt with the issue of causation.  The plaintiff is required to prove that had flexible aluminium rails been in place on the training track he would not have been severely injured in the accident.  Counsel for the defendant submitted that, even accepting the plaintiff's description of the accident, given the obvious force of the impact it is almost a matter of certainty, regardless of the type of horizontal rail used, that the plaintiff would have been seriously injured.  It was argued there was a strong possibility that the force of the impact, which was sufficient to bend the upright to an angle of 45 degrees when the plaintiff's arm allegedly struck it, was such that, even with the steriline fence concreted into the ground, the same injuries could have been expected.

2. The test to be applied in relation to causation was explained by Mason CJ in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515:

   "The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case', in the words of Lord Reid: Stapley [1953] AC at p 681."

3. The position in law was also explained by the High Court in Bennett v Minister for Community Welfare (1992) 176 CLR 408 per Gaudron J at 420‑421:

   "And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed it will be taken that the breach of the common law duty caused or materially contributed to the injury."

4. On the evidence before the Court the plaintiff's leg became trapped between the side and rear quarters of the horse and the rigid cylindrical rail while the horse was slowing down before collapsing.  I am satisfied it was not a high velocity impact and that the horse struck the rail at an angle of about 30 degrees.  As a consequence of his leg becoming trapped between the horse and the rigid cylindrical rail his leg was fractured.  I have already found that, had a steriline rail been in place, the probabilities are that it would have flexed sufficiently, as the expert Gillies conceded, and that no bone fracture would have been suffered by the plaintiff.  What might have happened to the plaintiff after his ankle became trapped between the horse and rail if a steriline rail system had been in place, and the line of travel his body may have taken, are entirely speculative and cannot be deduced or inferred from a process of reconstruction.  As I have found the WATC was negligent in not installing the steriline system, which on a balance of probabilities would have prevented the plaintiff suffering a leg fracture or sustaining any serious injury, the defendant's breach of its duty of care must be taken to have caused or materially contributed to that injury.  Bennett v Minister for Community Welfare (supra).

Voluntary assumption of risk

1. It was argued by counsel for the defendant that the evidence disclosed how hazardous a jockey's work was and that the risk of falling off a horse and striking a rigid galvanised rail was one accepted by a jockey such as the plaintiff who had been using the riding tracks for 20 years and had been injured several times in prior mishaps.  In Standfield v Uhr & Anor (1964) Qd R 66, where a jockey was injured at a barrier practice trial when his horse took fright at a tractor being driven on or near the track, Gibbs J (at 91) said:

   "The question that remains is whether there was evidence on which the jury could find that the appellant voluntarily undertook the risk of injury being caused to him by the presence of the tractor and the attached implement.  To answer this question, it is necessary to consider what it is that a defendant who sets up the defence of volenti non fit injuria must establish to make out his plea.  In Letang v Ottawa Electric Railway Company [1926] AC 725, at p 730, Lord Shaw delivering the judgment of the Judicial Committee, said:

   'It is quite a mistake to treat volenti non fit injuria as if it were the legal equivalent of scienti non fit injuria.  As Bowen LJ expressed it in Thomas v Quartermaine (18 QBD 685, 696, 697); "The maxim, be it observed, is not 'scienti' not fit injuria, but 'volenti'.  It is plain that the mere knowledge may not be a conclusive defence . . .  The defendant in such circumstances doe not discharge his legal obligation by merely affecting the plaintiff with knowledge of a danger . . .  Knowledge is not a conclusive defence in itself.  But when it is a knowledge under circumstances that leave no inference upon but one, namely, that the risk has been voluntarily encountered, the defence seems to me complete'.""

2. Lord Shaw further said (at p 731):

   "The Law of Canada and England seems to be summed up in the leading proposition to Wills J's judgment (in Osborne v London and North Western Railway Company 21 QBD 220, 224): 'If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it'.

   A defendant , relying on this defence, must prove not only that the plaintiff had a full knowledge and appreciation of the danger to which the defendant's negligence had exposed him, but also that the plaintiff had voluntarily accepted the risk or in other words had voluntarily taken the risk upon himself.  However, it cannot be said that a plaintiff has voluntarily accepted a risk, unless he was 'unconstrained by any feeling which would interfere with the freedom of his will' (London Graving Dock Co Ltd v Horton [1951] AC 737, at p 744); Bowater v Rowley Regis Corp [1944] 1 KB 476, at p 479).

   'Under modern authority consent or voluntary assumption of risk is not to be implied where, notwithstanding knowledge, the person concerned has exposed himself to the danger only because of the exigency of the situation in which he stands.  If he has no real or practical choice he does not voluntarily consent.'"

3. In support of his submission on this issue counsel for the defendant relied upon the decision of Gehri v Capital Racing Club Inc, Ohio Court of Appeals, unreported, 1997 WL 324175, June 12 1997 where a jockey had failed in his claim that the defendants had failed to provide a safe racing system by using and maintaining an inner race track rail that was unsafe and that a safer rail existed in the racing industry and was available for use.  In that case the Court found that the plaintiff was an experienced jockey who had been riding competitively for 20 years and had been involved in several accidents over the course of his career on the track where he was injured.  It was found that the jockey was aware that no break away race track rail was used but, despite this knowledge, voluntarily participated in a race.  In this situation it was found the defendant did not owe the plaintiff a duty of care under the doctrine of "primary assumption of risk" which is said by the defendant to be the equivalent of the common law doctrine of volenti non fit injuria.

4. The limitations of this doctrine are commented on in Fleming's The Law of Torts at p 333 where the learned author says:

   "It was there laid down that voluntary assumption of risk cannot be imputed to a plaintiff merely because he encountered a known hazard and thereby consented to the risk of being hurt; in order to disqualify him from all redress, he must be shown to have consented to run that risk at his own expense so that he, and not the negligent defendant, should bear the loss in the event of an accident.  Kelly v Farrans [1954] N1 41 at 45.  But a jury need not be specifically asked if the plaintiff assumed the risk 'without expecting the defendant to compensate her [his wife] if she were injured' (Sara v GIO (1969) 89 WN (Pt 1) (NSW) 203 (CA)).  In other words, the defence was henceforth available only in those rare cases where it can be genuinely predicated that the injured person assumed not merely the physical but also the legal risk of injury.  The distinction was thus first formulated by Williams, Joint Torts 308.  Even more important, this stricter test has been given teeth by progressively raising the standard of evidence required to support the conclusion that it has been met.

   As a result, the defence virtually disappeared from what had formerly been its most conspicuous sphere, that of work accidents (see p 568).  But although this dramatic change was largely influenced by the need to protect employees from bargaining away their rights under economic pressure, the new approach has not been confined to master‑servant cases.  The absence of true bargaining equality between worker and employer increases the difficulty of establishing that the risk was voluntarily assumed, but it is as true in other contexts that the defence cannot succeed any more unless the evidence supports a genuine inference that the plaintiff consented not merely to the risk of injury, but also to the lack of reasonable care which may produce that risk.  Wooldridge v Summer [1963] 2 QB 43 at 69."

5. And again at p 338 the author says:

   "The defence relates only to risks incidental to a relationship of free association between the parties: the defendant must have the right to confront the plaintiff with the dilemma: 'take it or leave it'.  Harper, James & Gray ~21.3. Cf Ins Comr v Joyce (1948) 77 CLR 38 at 57‑58 (Dixon J). Hence, it is peculiar to consensual relations alone, such as that between occupier and visitor or host driver and passenger; indeed, according to an extreme modern view, Wooldridge v Sumner [1963] 2 QB 43 at 69 (Diplock LJ), it is strictly speaking inapplicable to all non‑contractual relations where the duty of care is based solely on the Atkinian formula of responsibility."

6. I accept that the plaintiff must have known of the risk imposed by the solid rail system.  He was only too familiar with the training track and knew of the previous accidents that had occurred when jockeys had collided with the solid rails.  The real question, however, is whether he voluntarily took that risk upon himself.  I am satisfied he did not.  His livelihood as a jockey was dependent upon the WATC and the facilities provided at Ascot and elsewhere.  Track work was an absolute prerequisite to his career as a jockey.  He was in no position to "take it or leave it".  Fleming (supra) p 338.  He had no real choice because his career depended upon riding on the training track.  I find he had no real or practical choice in the matter.  The argument that the defendants were relieved of the duty they owed the plaintiff under this doctrine must fail.

Exclusion of liability

1. In his application to be licensed as a jockey the plaintiff agreed to be bound by the By‑laws and Rules of Racing of the Western Australian Turf Club.  The preamble to the Western Australian Turf Club Act 1982 describes the land to be vested in the WATC and expressly provides that the land is to be used as a place for the training and running of race horses.  The preamble also provides that the WATC should be responsible for the care, maintenance and control of the racecourse and buildings.  Section 13 of the Act provides as follows:

   "The Committee or an absolute majority in number of such Committee may from time to time subject to the special provisions of this Act make such by‑laws as they think fit for regulating the election or admission of members into the club and the expulsion of members therefrom for providing for the due management of the affairs of the club for regulating all matters concerning or connected with the said lands by this Act vested or which may hereafter be vested in the chairman and the admission thereto and expulsion therefrom of members of the club and the public respectively (and the rates or charges to be paid for such admission) and for the general management of the said racecourse and all races and race meetings and for the working and management of any totalisator or other betting machine and may from time to time by any other by‑laws alter or repeal any such by‑laws provided that no such by‑laws be repugnant to the laws for the time being in force in Western Australia and every by‑law shall be reduced into writing and shall be signed by the chairman."

2. Pursuant to s 15 of the Act a by‑law made pursuant to s 13 comes into operation once it has been published in the Government Gazette.  Section 16 of the Act provides that production of the Government Gazette containing any such by‑law is conclusive evidence that the by‑law was duly made.  By‑law 39 made pursuant to s 13 of the Act provides:

   "39(a)The Rules of Racing of the Club shall consist of the Australian Rules of Racing as promulgated from time to time by the Conference of Principal Clubs of Australia and of such Local Rules (including the Rules of Betting) as the Committee may from time to time make or adopt.

   (b)No new Local Rules and no repeal or alteration of a Local Rule shall take effect until it has been published in one issue of the Racing Calendar.

   (c)The Rules of Racing shall apply to all race meetings conducted by or with the sanction of the Club and shall also apply to the working and management of any Totalisator controlled by the Club or any affiliated Club."

   While there is no question as to the validity of this by‑law the critical question is whether a document entitled "Regulations Applicable to Racecourses and Training Grounds in Western Australia" has any legal force.  These Regulations are relied upon by the defendant because cl 21 provides as follows:

   "21Notwithstanding that it or he may have acted negligently neither the Club nor the Chairman nor any member of the Committee nor any officer, agent, independent contractor or employee of the Club shall be under any liability to any person for any loss, damage injury (including death) of or to any horse or person while on any premises of the Club (including property vested in the Chairman under the Act) or while on any approach thereto or while using any facility provided by the Club or while in the custody or control or under the direction of any officer, agent, independent contractor or employee of the Club acting in the course of his duty as such officer, agent, independent contractor or employee."

3. Counsel for the plaintiff challenged the validity of this Regulation on several grounds.  In the first place it was said that the Regulation had never been published in the gazette and could not be a valid by‑law made under s 13 of the Act.  Secondly, it was argued that, if the Regulation was made pursuant to by‑law 39(a), it can have no validity because it is simply not a rule of racing.  It was argued that local rules made under by‑law 39 are restricted to Rules of Racing which cl 21 of the Regulations clearly is not.  If that argument is correct cl 21 of the Regulations is null and void.  It can have no legal effect.  A third argument against the validity of cl 21 was that it was ultra vires s 13 of the Act which it is said does not expressly or by implication authorise the Committee to exclude itself from liability for negligence.

4. I agree with the submissions made by counsel for the plaintiff.  Clause 21 of the Regulations applicable to racecourses and training grounds in Western Australia is not a by‑law made pursuant to s 13 of the Act and, if it is to have any validity at all, can only be justified in terms of the rule making powers conferred upon the Committee by by‑law 39.  By‑law 39, however, is restricted to Rules of Racing and a clause excluding liability for negligence clearly falls outside the ambit of the by‑law.  Even more fundamentally, however, I am satisfied that the exclusion clause would not in any event fall within the by‑law making powers of the Committee as prescribed by s 13 of the Act.  I am satisfied on these grounds that cl 21 is invalid.

5. Another argument mounted against the validity of cl 21 is that there was no evidence that the Regulation was made under s 13 and published in the Gazette.  Counsel for the plaintiff submitted that cl 21 was published in the Western Australian Racing Calendar pursuant to by‑law 39(b) and forms part of the Rules of Racing.  Notwithstanding the absence of evidence that Regulation 21 was published in the Gazette counsel for the plaintiff relied upon the presumption of regularity to establish the proposition that cl 21 was properly made and is binding on the racing industry.  I believe that argument to be correct but, given my finding as to the invalidity of Regulation 21 for the reasons I have already mentioned, the question of regularity ceases to have any significance.  The decision of the Full Court in Maynard v Racing Penalties Appeal Tribunal of Western Australia (1994) 11 WAR 1 does not assist in any way in determining the validity of Regulation 21.

1. Any argument that the plaintiff was contractually bound by the racing regulations in force at the time of the accident, including Regulation 21, must also necessarily fail.  If there were any merit in this argument by‑law 39(c) expressly states that the Rules of Racing shall apply to all race meetings conducted by the Club.  There is no reference to the application of those Rules to track riding or any training facilities.  By applying for a licence to ride as a jockey the plaintiff certainly agreed to be bound by the Rules of Racing but, if my interpretation of Regulation 39 is correct, those rules are confined to the race track and not the training track.

Plaintiff's employment history

1. The plaintiff, who was born in Kalgoorlie on 20 August 1960, was educated in Kalgoorlie and Perth and left school at the age of 14½ to become an apprentice jockey.  He competed in his first race in March 1976 after 20 barrier trials at Ascot.  He completed his apprenticeship on 16 December 1979 having ridden approximately 200 winners in both the metropolitan area and the country.  Following the completion of his apprenticeship he continued riding for several leading trainers both in Western Australia and overseas.  In April 1981 he competed very successfully in Mauritius before returning to Perth in early December of that year.  Later that year he won his first Group 1 race and in 1984 went to Singapore for about three to four months where, once again, he competed with great success.  Twelve months later he again returned to ride in both Singapore and Malaysia for a period of approximately 11 months.  He returned to Perth in November 1996 and continued riding very successfully for a trainer named O'Malley.  He 1989 he left O'Malley and became a freelance jockey.  In 1989, 1990, 1991 and again in 1992 he was the leading jockey in Perth.  Following this three to four year period, when he was at the pinnacle of his career, he continued to ride successfully in both the metropolitan and country areas and was always in the top group of jockeys in this State.  Between November 2001 and April 2002 he competed in approximately 87 races and rode approximately 25 winners with a winning ratio of 1:4.  Notwithstanding a series of fairly significant injuries he continued to ride successfully and his last race prior to the accident was on 6 April 2002 when he rode a horse named "Price Control" to victory at Ascot.

2. Although at the time of the accident the plaintiff had probably passed the peak of his riding career I am satisfied he was still extremely successful and, despite his history of significant injuries, able to overcome his pain and discomfort and continue as a jockey in both race and track work.

Plaintiff's injuries following accident

1. As a consequence of the accident the plaintiff was found to have sustained a Grade 1 open fracture of the right distal tibia and a comminuted segmental fracture of the right humerus.  Mr Michael Wren, the orthopaedic surgeon who treated the plaintiff from the time of his admission to hospital after the accident, attached an external fixator frame to the plaintiff's leg and repaired the segmental humeral fracture with the insertion of screws and plates.  In the months that followed revision surgery of the right humeral fracture and the right leg had to be performed.  In September 2002 Mr Michael Wren expressed the view that the plaintiff would have a permanent residual disability of his right lower limb in the order of 15 per cent loss of function below the level of the knee.  It was not until January 2003 that the frame was removed from the plaintiff's leg and replaced with a full fibreglass cast.  In March 2003 his arm was left out of plaster after x‑rays of the humerus showed the proximal fracture was progressing towards union.  In March 2003 Mr Wren arranged for the plaintiff to undergo a course of physiotherapy and subsequent x‑rays examinations revealed both fractures were progressing towards union.

2. In a report dated 5 April 2005 Mr Michael Wren noted there had been a 1.6 centimetre shortening of the right lower limb and observed that the plaintiff had residual symptoms of aching pain in the area of the distal tibial fracture.  He also noted a distinct loss of flexion in the right leg and estimated that the plaintiff had lost approximately 20 per cent of the function of the right lower limb below the level of the knee as a consequence of the tibial fracture.

3. In relation to his right arm Mr Wren noted that the clinical alignment of the humerus was satisfactory and that the range of motion of the elbow was normal.  He concluded that the plaintiff's residual weakness and mild restriction of shoulder motion was consistent with a 10 per cent loss of function of the right upper limb above the level of the elbow as a consequence of the accident.

4. Both in his medical reports and in his evidence before the Court Mr Wren expressed the view that the plaintiff would not be able to return to riding in races.

5. Dr Desmond Williams, the orthopaedic surgeon who reviewed the plaintiff for the purposes of the trial, found that the plaintiff's right shoulder had restricted abduction and that there was significant muscle wasting with a marked weakness of elbow flexion power.

6. An examination of the plaintiff's right ankle revealed that he was only able to bend it up to a neutral position.  Downwards flexion of the ankle was limited to half of what he could achieve in his left ankle.  Dr Williams found what he described as bony prominence in the lower third of the tibia with significant wasting of the plaintiff's calf.  In his report dated 16 March 2005 the witness said the injuries to the plaintiff's right lower leg and right upper arm would prevent him from resuming his career as a jockey or track rider and, beyond that, preclude him from working in any other area of the racing industry, such as stable work, that might require heavy lifting, prolonged walking or standing, climbing or walking on irregular ground or climbing ladders.

7. Mr Nick Batalin examined the plaintiff and confirmed he had sustained significant injuries in the accident on 11 April 2002.  He described those injuries as a comminuted segmental fracture of the right humerus which, after surgical repair, understandably left residual symptoms in the right arm and what the witness described as a minor restriction of the right elbow joint movements.  As a consequence of the fall Mr Batalin also described how the plaintiff had sustained a compound comminuted injury of the distal right tibia and a fracture of the right fibula neck which required extensive surgical treatment and prolonged immobilisation in an Ilizarof frame followed by subsequent revisionary surgical procedures.  He observed some degree of malunion and residual symptoms of the right leg.  The witness had no doubt that these injuries on their own rendered the plaintiff incapable of returning to work as a jockey and also becoming involved in any labour intensive occupation requiring heavy lifting or repetitive bending.

8. Dr Peter Connaughton, an occupational physician, examined the plaintiff on 29 November 2004 and confirmed he had muscle wasting in his arm and right leg.  He concluded that the plaintiff was unfit to return to competitive riding at that time.  In cross‑examination he agreed that, having left school at the age of 15 and spent his entire working career as a jockey, the plaintiff's best prospects for rehabilitation and a return to work was in the horse industry.  Other factors that persuaded Dr Connaughton to this point of view were the plaintiff's age and the length of time he had been out of work following his injury.

9. The only medical practitioner to differ substantially from the consensus of opinion that the plaintiff was no longer fit to continue riding as a jockey was Dr R C Edibam, a retired orthopaedic surgeon, who examined the plaintiff on 5 January 2005 and was unable to find any significant muscle wasting in either the plaintiff's right arm or right leg.  His evidence in that respect differed from that of Dr Williams and to a lesser extent that of Mr Nick Batalin.  In his view the plaintiff's fractures had united successfully and there was no evidence of any functional impairment either in his right upper limb or his right lower limb.  Given these findings Dr Edibam believed the plaintiff could return to work as a jockey.  The only qualification he added was that, with the prosthesis in his left knee, a further loosening of the artificial joint was inevitable if the plaintiff continued to ride and a total knee replacement was likely to follow.  If that were done Mr Edibam believed that the restricted flexion of the plaintiff's knee would preclude him from continuing to ride.

10. I accept the evidence of Mr Wren as to the effect the injuries of 11 April 2002 have had on the plaintiff's capacity to return to work as a jockey or to some other position in the racing industry.  Mr Wren was the treating surgeon and is obviously in the best position to comment on this aspect of the case.  I also take into account that his conclusions are to a large extent supported by Dr Desmond Williams and Mr Nick Batalin.

11. Apart from the physical injuries following his accident the plaintiff was also said to have developed psychological problems.  Although he was not seen by a psychiatrist immediately after or within a reasonable time of the accident the plaintiff said that his nightmares, flashbacks, desire for isolation and other mood swings led him to seek psychiatric help in April 2005.  Dr Kenneth Orr, the consultant psychiatrist who saw the plaintiff, diagnosed a major depressive disorder which, in his opinion, had lasted for possibly up to 12 months and appeared to be deteriorating, particularly over the three to four months preceding the psychiatric examination, when the plaintiff began for the first time experiencing self harm ideation.  The symptoms described by the plaintiff and his partner led the psychiatrist to conclude that it was highly likely the plaintiff had also suffered from post‑traumatic stress disorder but that the intensity of this illness had possibly waned in the six months prior to the examination with the corresponding development of the major depressive illness.  In Dr Orr's opinion the most optimistic prognosis is that the plaintiff will need 1‑2 years before overcoming his psychological disorder and regaining any form of enduring work capacity.  The most pessimistic outcome, according to Dr Orr, was that the plaintiff would never recover or regain any meaningful capacity to work.  Dr Orr also expressed the view that, when the plaintiff regained his capacity to work, he would probably have to return initially to a field in which he felt comfortable as, for example, a position in the racing industry.  He would also need to continue receiving psychiatric treatment for a period of 1‑2 years and possibly see a psychologist over the same period.

12. Counsel for the defendant attacked Dr Orr's findings by attempting to show that much of the material relied upon by Dr Orr in reaching his conclusion was either flawed or inconsistent with what the plaintiff had said on other occasions to other parties.  It was suggested to Dr Orr, for example, that the plaintiff had not given him any account of the nightmares he claimed in evidence to have suffered and also failed to mention that, following the accident, he had worked four hours daily for a period of months at Neville Parnham's stables.  It was also suggested to Dr Orr that what the plaintiff told him about his degree of social withdrawal was inconsistent with the plaintiff's answers in cross‑examination as to his social activities following his injuries.  Dr Orr conceded that, if he had been told these things by the plaintiff, it might have affected his overall view of the plaintiff's condition.

13. I was really unable to find any significant discrepancies between what the plaintiff told Dr Orr and what he said in his evidence.  In his report dated 7 May 2005 Dr Orr outlines the criteria he relied upon in reaching the conclusions he did.  These included the traumatic event itself, the plaintiff's recorded feelings of fear and helplessness, the flashbacks he claimed to have had and his claim of social withdrawal and anhedonia.  Most of what the plaintiff told Dr Orr was consistent with what he said in evidence.  His apparent failure to tell Dr Orr about the nightmares he had, while perhaps a little surprising, does not, in my view, taint the diagnosis in any way; nor does the plaintiff's apparent failure to tell Dr Orr that he was working on a regular basis in a friend's stable or that he had trained a horse for a short period.  Having already reached the conclusion that the plaintiff was on the whole a convincing and credible witness, who did not seek to exaggerate or embellish his story in any way, I do not accept that Dr Orr's diagnosis was in any way flawed either by what the plaintiff told him or by what he omitted to tell him.

Plaintiff's current physical capacity

1. The plaintiff said his major problem was the lack of strength in his right arm which he estimated was approximately 70 per cent of its pre‑accident capacity.  This lack of strength has handicapped him considerably and he claimed he would be unable to do many of the mundane tasks required of a person who worked as a stable hand.  Although, for example, he is able to tighten a girth he claimed he always got someone else to check it before the rider mounted the horse because he felt he might not have secured it tightly enough.  The lack of strength in his right arm also precludes him leading horses from the stables other than animals which are sedate and unexcitable.  The lack of strength in his right arm also precludes him from doing any heavy duties including sweeping and picking up anything of significant weight.

2. The plaintiff's right leg also handicaps him substantially.  He is unable to walk any substantial distance or stand for any considerable period of time.  He still limps and is unable to jog.  He claimed the combination of his injuries made him unsuitable for work as a stable hand because he was unable to lift heavy objects including bags of chaff and oats or shovel out and clean stalls, lift the tail gates of horse stalls and carry out any of the more heavy manual tasks required of a stable hand.  He said he had tried working as a stable hand both in Broome and Perth but had to limit himself to light work.

Plaintiff's history of injuries prior to accident on 11 April 2002

1. The plaintiff had a significant history of injuries prior to the accident on 11 April 2002.  Among those injuries there were three probably more significant than the others.  The first was an injury to his left knee in January 2001 and the second an injury to his right knee as early as 1998.  Apart from these two injuries the plaintiff complained of recurring back and hip pain which required treatment as early as 1998.  Apart from these three areas of injury, which were probably the most significant, he also fractured his ankle, wrist and both collar bones in accidents preceding 11 April 2002.

2. Dealing with the more significant injuries sustained by the plaintiff, the first was an injury to his left knee which occurred as early as 1991.  Medical reports tendered in evidence reveal that a significant tear of the lateral meniscus of the left knee was detected and was repaired by the plaintiff's then treating surgeon, Mr Tim Keenan.  In a report dated 2 August 2001 Mr Keith Holt, an orthopaedic surgeon who took over the treatment of the plaintiff's left knee, noted that following a riding incident on 11 January 1997 the plaintiff damaged his left knee again and a further tear of the remaining lateral meniscus was diagnosed.  On 7 March 1997 the plaintiff underwent an arthroscopy of the left knee when a minor tear of the remaining lateral meniscus was revealed.  In a report dated August 2 2001 Mr Keith Holt described the damage that had occurred to the articular surface at the end of the femur requiring the removal of loose articular surfaces and other loose fragments.  Following this procedure Mr Keith Holt was of the view that the plaintiff was probably going to suffer with progressive osteoarthritis of the lateral compartment of the knee.  Further arthroscopic surgery to the plaintiff's left knee was performed by Mr Holt on 9 January 1999 and 17 December 1999 but, in the end, the plaintiff was advised to undergo an hemi‑arthroplasty of the lateral compartment of the knee.  He was also advised that the only prosthesis that would enable him to continue riding would be what was described as a "mobile bearing" prosthesis placed in the lateral compartment.  This procedure was undertaken on 9 February 2001 and revision surgery had to be undertaken on about two occasions when the artificial component in the plaintiff's leg was dislocated.  Apart from these minor problems the procedure was apparently a complete success and, as Mr Keith Holt notes in a later report dated 28 February 2005, the plaintiff was able to return to both track and race riding with no adverse consequences.  The specialist also expressed the view that the mobile bearing prosthesis was unlikely to be subject to any significant wear and that the plaintiff's left knee was likely to have withstood the stresses and strains of race riding for a period of 10‑15 years or perhaps even more.

3. The effect of the injury to the plaintiff's right knee is perhaps not as certain as the injury to the left knee.  In a report dated 2 January 2002 Mr Keith Holt refers to an occasion in December 1995 when his colleague, Mr Tim Keenan, removed approximately two‑thirds of the lateral meniscus of the plaintiff's right knee.  In that same report Mr Holt commented that the plaintiff had done well since surgery but had recently developed marked swelling over the lateral joint line and to the posterior of that line.  In a report dated 19 February 2002 Mr Holt performed an arthroscopy of the plaintiff's right knee which confirmed a tear of the lateral meniscus which required re‑sectioning.  The report also notes that there was a moderate degree of wear to the lateral femoral condyle and a little bit of early wear of the tibial plateau.  Mr Holt commented that the rest of the plaintiff's knee was satisfactory and believed the plaintiff's condition would improve following the procedure that had been undertaken.  He qualified this, however, by saying that, in his view, the right knee was going to go the same way as the left.  The plaintiff, however, was adamant that he had had no further problems with his right knee following the procedure in February 2002.

4. The final area of what could be described as a potentially significant injury was the plaintiff's lower back and hip.  As early as December 1998 the plaintiff had complained of pain in his lower back and hip and a report from Mr Keith Holt dated 4 September 1998 refers to facet joint blocks having been performed to ease his condition.  The plaintiff conceded he had complained of low back and hip pain to various medical practitioners and, while there was some dispute as to the amount of pain killing medication he took before racing, he agreed he recalled telling Dr Connaughton in November 2004 that he had to take Panadeine Forte before riding in a race.  A bone density study undertaken on 28 September 2001 revealed that the plaintiff had what was described as low bone mineral density in his spine and the femoral neck of his right hip and fell into the medium risk group with respect to the risk of fracture in these areas.

5. When cross‑examined about these pre‑accident injuries the plaintiff agreed that he had acted contrary to early medical advice and continued riding in races when he had been advised not to.  In 1998, for example, he was advised by a medical practitioner that he had signs of early degenerative change in his hips.  He was also told that surgery would probably be unproductive and that he would have to modify his activities in order to avoid continuing pain in that area.  The plaintiff, however, said he did not accept that advice and continued riding with the assistance of painkillers even though he had been told that the condition of his lower back and spine was likely to be aggravated by race and track work.  In addition to the advice given to the plaintiff not to continue riding because of the condition of his lower back and hips he was given similar advice in relation to the injury to his left knee.  In a report dated 3 March 2000 Graham Forward, an orthopaedic surgeon, reviewed the history of the plaintiff's left knee injury and expressed the view that his riding position created an extreme valgus strain on the knee.  In the same report the orthopaedic surgeon referred to earlier advice given to the plaintiff that he should consider giving up riding but the plaintiff ignored this advice and continued riding.

1. Dr Desmond Williams, an orthopaedic surgeon, examined the plaintiff on three occasions prior to the trial and concluded that his pre‑accident injuries would not have curtailed his career as a jockey.  In his report dated 11 March 2004 he said the plaintiff's left knee had a good motion range without restriction with a full extension arc and excellent flexion range.  There was no significant swelling and, apart from mild crepitus, the witness said he was unable to find anything amiss with the plaintiff's left knee.  He also referred in his report to the plaintiff's history as a race track jockey following the arthroplasty when he was able to compete in over 80 races at the highest level.  In Dr Williams' opinion the plaintiff's treatment to his left knee prior to the accident had been completely successful and there was no indication that this injury would have curtailed his racing career.  The witness went as far as to say that he would expect a life of approximately 20 years from a successful arthroplasty.  Dealing with the plaintiff's right knee Dr Williams referred in his report dated 13 January 2006 to the MRI scan of the right knee on 2 January 2002 which revealed a horizontal tear in the lateral meniscal body that was subsequently repaired surgically by Dr Holt.  Upon examining the plaintiff Dr Williams concluded that his right knee had a good range of motion and there was no effusion or synovitis.  He said the right knee had full extension and a good range of flexion and there was no swelling or crepitus on knee movement.  Apart from some minor arthritis in the right knee Dr Williams believed the knee was sound and that, but for his injuries in the accident on 12 April 2002, the plaintiff could have continued riding in races for a period of between five and ten years before complications set in.

2. In cross‑examination Dr Williams refused to accept the opinion of Dr Scott Isbel, a sports physician, who had concluded that when riding in a crouched position in the saddle with his knees pressed inwards a valgus stress was placed on the joint of the plaintiff's knee.  While agreeing that riding did place a valgus stress on the knee Dr Williams discounted the significance of such stress.  He contrasted a valgus stress with an impact stress such as is caused by jogging.  While an impact stress could be expected to have had adverse effects on the plaintiff's knee Dr Williams believed that a valgus stress, or outward pressure, would not have the same consequences.  He stressed that while riding as a jockey is a weight bearing activity the forces exerted are totally different from impact stress.  He went on to explain that in a riding position it is the soft tissues of the knee that are under pressure and that there is no significant wear and tear on the joints while in that position.  Finally, in his report dated 13 January 2006 Dr Williams said he examined the plaintiff's right hip and noted that he had no pain and a full motion range in flexion arc and abduction arc.  In his view there was no indication of right hip pathology.

3. Mr Nick J Batalin, another orthopaedic surgeon, gave evidence at a commission de bene esse.  In a report dated June 28 2004 he detected muscle wasting of the right leg muscles and some degree of malunion at the site of the fracture in the right leg.  An examination of the plaintiff's left knee revealed a degree of restriction of movement.  An examination of his hips revealed nothing of significance.  While the fractured right humerus was found to be soundly united Mr Batalin noted a significant restriction in the range of movement of the plaintiff's right elbow.  He did not note any muscle wasting in the right arm.  An examination of the plaintiff's spine revealed what Mr Batalin described as a noticeable kyphotic or angulation in the lower thoracic region which led him to believe that the plaintiff had a pathology of fractures of the thoracic vertebrae.  Without the benefit of x‑rays of the thoracic spine, however, the medical specialist was not able to take the matter any further.  He concluded that the plaintiff had suffered multiple significant injuries to various parts of his body which could, in his view, lead to a progressive disability.  The principal problems were in the plaintiff's left ankle and foot, the deformity of the lower thoracic region and, most significantly of all, the injury to the left knee which had led to mobile meniscus hemi‑arthroplasty.  This last procedure alone led the witness to conclude that it would have been undesirable for the plaintiff to have continued as a jockey and he said he would have advised the plaintiff to give up his career before attempting to undergo such a procedure. 

Plaintiff's efforts to prepare himself for work after accident

1. Following his injuries the plaintiff, realising he would probably never ride again in either race or track work, described how he moved to Broome and worked as an unpaid stable hand for a friend for approximately three months.  During this time he did not do any heavy manual work.  On his return to Perth he continued to assist at stables in the metropolitan area and also went to Kalgoorlie where he helped a friend at his stables.  Once again he confined himself to light duties.

2. The plaintiff said he applied for two separate positions in the workforce.  In the first instance he applied for a position as manager/trainer with a set of stables in Busselton but was unsuccessful.  He also applied for a consultancy or sales position with a blood stock company called Magic Millions but, once again, was unsuccessful in his application.

3. In the months leading up to the trial the plaintiff said he had begun assisting a friend who has a stable of four to five horses but, as in the past, confined himself to light duties.  The plaintiff added that he was helping his friend simply for something to do.

4. When questioned in cross‑examination the plaintiff was adamant he would not be able to become a racehorse trainer because he lacked the financial capacity to begin or support the venture and, without the necessary financial means, would have to handle the entire work load himself including, for example, the manual work in the stables and track work with the horses.  Not being able to rely on others to do this work he believed he would not have the capacity to do it himself.

5. Neville Parnham, the leading racehorse trainer in whose stables the plaintiff had been working after his accident, confirmed that the plaintiff had begun to spend time in his stables about three years prior to the trial to gain experience and learn more about what is required of a professional trainer.  He said the plaintiff was not a regular attendee but worked approximately three times a week for three hours in the morning and approximately one and a half hours in the afternoon.  He said the plaintiff was limited in what he could do.  While he now had sufficient strength in his right arm to saddle a horse and hose down and walk the animals around there were a number of more heavy manual tasks associated with stable work that he was unable to do because of his injuries.  The witness emphasised that the plaintiff could not be given a highly excitable horse to handle because of the danger that it might try to break free and the plaintiff would be physically unable to restrain it.  He was also limited in the type of work he could do and was unable to lift buckets of water, carry bags of feeds, care for the more temperamental horses or put on or remove horses' shoes because of his disabilities.

6. Luigi Luciani, a licensed racehorse trainer who also owns his own stables, said he was partly responsible for finding a suitable person to manage the Amelia Park racing and agistment centre at Busselton.  He said the job was advertised and that the plaintiff was an applicant for the position.  He said he did not recommend the applicant because he had reservations as to his suitability to carry out the physical tasks required.  He added that the plaintiff's inability to ride horses also told strongly against him.

Failure to mitigate loss

1. I am satisfied that, had it not been for the accident, the plaintiff could have continued doing both race and track work for another two years.  After that it is unlikely he could have continued.  He was 42 at the time of his accident and the evidence revealed that most jockeys retired at about that age.  His earlier injuries to his left and right knees, his lower back and his hip, though not troubling him at the time of his accident on 11 April 2002, would in all likelihood, either in combination or individually, have become symptomatic if he had continued riding.

2. In assessing the plaintiff's claimed loss of working capacity counsel for the defendant invited me to make an adverse finding in relation to his credibility.  It was submitted that he had consistently underplayed the effect of his pre‑accident injuries and over‑emphasised the injuries sustained on 11 April 2002.  It was suggested he had not always been honest with the medical practitioners who examined him and had failed to disclose material information that might have prejudiced his case, as, for example, the result of his bone density tests.  Some significance was also placed by counsel for the defendant on the plaintiff's failure to recollect telling Dr Connaughton that he had been taking four to six Panadeine Forte tablets before racing.  While Dr Connaughton's note certainly suggested the plaintiff had told him this, it was not clear whether the plaintiff was referring to the period before or after he had his left knee prosthesis.  What he allegedly said to Dr Connaughton was quite consistent with him having taken such a surprisingly large quantity of painkillers at the time when his left knee was still troubling him.

3. This criticism of the plaintiff's credibility was made in the context of the defendant's overriding submission that the plaintiff could not be believed when he said he had done all he could towards achieving his own rehabilitation.  It was submitted by the defendant that the plaintiff had an ulterior motive in downplaying his pre‑accident injuries and not finding other work he was capable of doing outside the horse riding industry.  That motive, it was suggested, was to inflate his damages award to enable him to begin a horse training venture.  It was argued that the plaintiff had always intended to train horses and, on the medical evidence, was capable of doing so provided he avoided the more onerous manual tasks associated with the position.  It was suggested his longstanding intention to focus everything on this goal was the reason why he had not tried to obtain alternative remunerative work from the middle of 2003 when Mr Wren certified him fit to perform some duties.

4. While the plaintiff made no secret of his desire ultimately to become a trainer I am unable to find that he deliberately refrained from seeking remunerative employment outside the horse industry in order to increase his chances of obtaining an inflated award of damages.  Despite the criticisms made I did not find the plaintiff to be a witness whose evidence was untruthful or exaggerated.  On the contrary he made a positive impression on me.  It is true that, having been subjected to a detailed and searching cross‑examination, he faltered at times and on occasions revealed signs of petulance and impatience.  I gained the impression, however, that he was completely truthful and trying to be as accurate as he could.  I do not accept Mr O'Neil's criticism that the plaintiff has consistently downplayed his pre‑accident injuries.  All the evidence points to the contrary.  Not only did the plaintiff assert that at the time of the accident on 11 April 2002 his earlier injuries were not troubling him but the actual physical evidence speaks for itself.  While there was supposition that his right knee might go the same way as his left, and that the prosthesis in his left knee might not stand up to the strains and stresses of competitive riding, the fact remains that just prior to the accident he had competed in 87 races and had ridden 24 winners.  His last win was only one week before the accident and a film of that race shows him riding without any obvious signs of discomfort or physical disability.

5. Counsel for the defendant emphasised that some doctors, including Dr Connaughton, believed that the plaintiff's pre‑accident injuries were sufficient to have stopped him racing and that he should have been advised to do so.  But even the plaintiff did not expect to compete in races after the surgery to his left knee.  He only anticipated being able to return to track work.  As it was, however, he not only returned to racing but did so with great success.

6. The conclusion I have reached is that the plaintiff did not have the ulterior motive attributed to him by the defendant but tried his best to rehabilitate himself within the horse industry which was the only thing he knew.  At his age, with little education or experience in any other field, the prospect of moving outside the horse industry must have been extremely daunting.  I am satisfied that, notwithstanding the long history of injuries he sustained prior to the accident on 11 April 2002, he had overcome the effects of those injuries and was honest in his assertion that they no longer presented a problem in either his racing or track work.

7. I accept the plaintiff's evidence that he intended continuing as a jockey until he was unable to race or his earnings fell below an acceptable level.  I also find that he planned to move from competitive racing to a position as a stable foreman before possibly making the transition to horse trainer.  I am satisfied, however, that he knew he would have to gain experience as a stable foreman before achieving his ultimate goal.

8. I find the position of stable foreman is no longer open to the plaintiff.  He did make an attempt to get such a position but, while the evidence showed his experience and reputation as a jockey and knowledge of the horse industry made him an excellent candidate for the job, his inability to do track work was an insurmountable obstacle.  There was evidence that he genuinely tried to prepare himself for such a position.  He worked a few hours a day several days a week over a long period of time in the Parnham stables.  During this time he had to confine himself to the lighter duties involved in stable work.

9. It is true that there were other occupational fields that might have been open to him.  Such jobs as a taxi driver, sales representative or forklift driver have been mentioned.  But his suitability for such positions is questionable.  Dr Connaughton, the occupational specialist, agreed that the best prospects for the plaintiff's rehabilitation lay within his own industry.  Dr Connaughton believed that his lack of education, age and history of injury would be a handicap that would be obvious to any prospective employer.  The specialist also conceded that there were categories of work in most of these alternate forms of employment that the plaintiff, because of his injuries, would be incapable of doing.  In the end I was left with the overwhelming impression that the plaintiff's position is rather unique and that, practically speaking, his only reasonable hope of employment is within his own industry.

10. I find that after his riding career came to an end, probably as early as 12 April 2004 (2 years after the accident), the plaintiff would have found work as a stable foreman capable, according to Lou Luciani, of earning $800 gross per week (less tax of $179 per week).  His net weekly income as a stable foreman was likely to have been $621.

Exclusion of arm injury from award of damages

1. The defendant has argued that the injury to the plaintiff's arm is non‑compensable.  The reason for this is straightforward.  The plaintiff alleged that after his horse came into contact with the rigid horizontal rail and collapsed dead or dying on the track he was thrown out of the saddle and his right arm struck the solid upright as he fell onto the ground in the gap between the two training tracks.  The significance of this is that the arm injury was caused by contact with the solid upright and not the horizontal running rail.

2. The plaintiff accepts that, whatever type of horizontal flexible rail system ought reasonably to have been used on the training track, solid support posts fixed in concrete would still have had to be used.  The posts could be offset at the same angle as those used on the steriline rail on the race track itself; but, unlike those in use on the race track, the uprights would be permanently fixed in the ground and not held in place by a removable pin.  Given this concession by the plaintiff, and his description of the manner in which his right arm was broken, the defendant argued that the injury to the right arm and any loss it caused the plaintiff can be traced to a cause in which negligence on the part of the defendant could not be said to have played a part.  Watts v Rake (1960) 108 CLR 158 at 160.

3. In his schedule of the plaintiff's economic loss counsel for the defendant went on to submit that the injury to the plaintiff's right arm caused significant disability and, according to some of the evidence, would per se have ended the plaintiff's career as a jockey. On this basis the defendant argued that any award of damages, including general damages and any award for medical expenses or voluntary services resulting from injury to the plaintiff's arm, should be substantially discounted because the injury to the plaintiff's arm was not attributable to the defendant's negligence.

4. I accept that the arm injury was not caused by the defendant's negligence.  I agree the likelihood of it having occurred would have been the same whatever type of supporting posts had been in place at the time of the accident because the plaintiff's arm hit the upright and not the rail itself.  It follows that any award of damages must exclude the injury to the right arm.

5. While the injury to the plaintiff's arm is a relevant factor in considering an award of general damages and medical expenses or the cost of voluntary services I do not believe it is a relevant consideration in assessing an award for past or future loss of earning capacity.  It is true that the injury to the plaintiff's arm was serious.  In his report dated 16 March 2005 Mr Williams noted the wasting of muscle and reduction in elbow flexion strength in the right arm.  He concluded that the combination of the injuries to the plaintiff's right lower leg and right upper arm would prevent him from resuming his career as a jockey.  But the evidence of Mr Wren, the treating surgeon, makes it abundantly clear that the injury to the right leg alone, which I have found was caused by the defendant's negligence, was enough to end the plaintiff's riding career.  That much is evident from his report dated 5 April 2005 where, in discussing the plaintiff's future capacity to work, he emphasised the particular problems the plaintiff had encountered in attempting to mount or ride a horse because of the pain caused by the pressure to the area of the medial aspect of the tibial fracture from the stirrup iron.  Like Dr Williams he concluded that the combination of the plaintiff's injuries prevented him resuming his career as a jockey but, on my interpretation of the evidence, the significant injury to the plaintiff's right leg would alone have had that result.

6. If this finding is correct no allowance need be made for the injury to the right arm in any award of damages for past or future loss of earning capacity.  The injury caused by the negligence of the defendant was to the plaintiff's right leg.  That injury on its own, on the evidence of Mr Wren, precluded the plaintiff from riding again.  His inability to ride in turn limits his capacity to work as a stable foreman.  For these reasons I am satisfied that an award of damages to compensate the plaintiff for these losses does not have to be discounted because of the arm injury.

Contingencies

1. Counsel for the defendant has submitted that a substantial contingency allowance must be made to reflect the plaintiff's past history of injuries, his osteopenic condition and the dangerous nature of his work as a jockey.  Dealing with these various factors I accept that, if the plaintiff had been able to continue as a jockey for another few years, there was a real risk of damage to the prosthetic knee in the event of a further riding accident.  Any damage might have led to a full knee replacement or revision surgery which, as Dr Keith Holt conceded, might have brought an end to the plaintiff's riding career.  There were, of course, other injuries that might have also shortened the plaintiff's career.  The arthritic condition of his right knee and the earlier injuries to his lower back and hip were not troubling him at the time of the accident but might have re‑surfaced in a riding accident or some other mishap and shortened the plaintiff's riding career.  I must not overlook the fact that any curtailment of his ability to ride, for whatever reason, would have jeopardised his prospects of finding work as a stable foreman.  I am satisfied that the potential for adverse contingencies to have brought the plaintiff's riding career to an end, and adversely affect his capacity to find other work in the industry, including a position of stable foreman, was substantial and justifies a higher than usual discount of 15 per cent.  This reduction will apply to future but not past loss of earning capacity.

Retained earning capacity

1. The defendant argued that because the plaintiff had a retained capacity to do other work, such as that of a forklift driver, security officer or sales assistant, his potential earnings in any of those fields of employment reasonably open to him should be deducted from any award of damages for loss of earning capacity.  The defendant led evidence from an expert, Professor Charles Mulvey, of various occupations that might be open to the plaintiff and the current wages paid in such occupations.  It was argued by the defendant that if the plaintiff had taken up one of these alternate occupations from 16 January 2006 to retirement on 20 August 2025, his income would have been marginally less, and in some instances even more, than what he could have earned as a stable foreman over the same period.

2. I have already made a finding that other forms of occupation, however little training was required, were not reasonably open to the plaintiff.  Based on the evidence of the plaintiff, Dr Orr and Dr Connaughton I have said that the plaintiff's best prospects for employment were within his own industry and that his age, history of previous injuries and lack of education would have been an almost insurmountable barrier to him finding work in any other area.  My decision is also influenced by Dr Connaughton's observation that while the plaintiff might be said to have a general capacity to work in these alternative  areas of employment there was likely to be certain types of work within each occupation or category which he would not be able to do because of his injuries.

3. Instead of adopting the approach suggested by counsel for the defendant, which I think is unrealistic for the reasons I have mentioned, I believe it would be preferable to make an allowance for the plaintiff's residual capacity by discounting the award of damages for future loss of earning capacity by deducting from the award a percentage amount reflecting my assessment of his residual capacity.  Bowen v Tutte (1990) A Tort Rep 81 ‑ 043.  Adopting this approach I believe a 30 per cent reduction should be applied to the amount awarded for future loss of earning capacity.

Past loss of earning capacity

1. The plaintiff was aged 42 at the time of his accident.  In a report dated 5 April 2005 Mr Michael Wren believed that, but for the injuries sustained in the riding accident, the plaintiff might have been able to continue as a jockey for at least a few years.  Based on this and the plaintiff's own evidence I have already found that he could have continued doing both race and track work for another two years.

2. In assessing his past loss of earning capacity I accept the submission made by the defendant that, given the interruptions to the plaintiff's career on account of his earlier injuries, his average income for any lost earning capacity should be calculated over as broad a period of time as possible because any calculation based on too short a period might produce a distorted result by focusing excessively on a period that was fortuitously successful or so short as to unduly emphasise the effects on the plaintiff of his accident in December 2000.  With this in mind I propose to calculate the plaintiff's average earnings at the time of the accident by relying upon the figures provided in relation to the five years preceding 12 April 2002.  Adopting the method of calculation in the defendant's schedule of the plaintiff's economic loss the plaintiff's net weekly average earnings over this five year period would have been $284.44 per week calculated as follows:

   "Five Year Average

   2.3In the period 30 June 1998 to 11 April 2002 (a period of 249 weeks or almost 5 years), the Plaintiff's gross earnings as a jockey were $235,305.00 before expenses (see Exhibit 3).

   2.4Total work expenses (249 weeks) = $155,858.00.

   2.5Gross earnings as a jockey (249 weeks)              $235,305.50

   Less total work expenses (249 weeks)         $155,858.00

   $79,447.50

   Weekly average (net earnings divided by 249)     $      319.07

   Less tax payable (as per tax tables)          $         34.63

   Net weekly average earnings $      284.44"

Plaintiff's loss of earning capacity 12 April 2002 – 12 April 2004

1. I have already found that, but for the injuries he sustained in the accident on 11 April 2002, the plaintiff would probably have been able to ride in both race and track work for another two years.  His loss of earning capacity for that period would be as follows:

   (a)12 April 2002 – 12 April 2004 (104 weeks).

   (b)Based on the five year net weekly average income of $284.44 x 104 weeks = $29,581.76.

Plaintiff's loss of earning capacity 12 April 2004 to date of trial.

(a)12 April 2004 to 25 January 2006 (90 weeks).

(b)Based on the net weekly income of $621 of a stable foreman x 90 weeks = $55,890.

Fox v Wood

1. The parties agreed that the Fox v Wood component for compensation received by the plaintiff was $15,177.

Future loss of earning capacity

1. In calculating the future loss of earning capacity I have assumed that the plaintiff would have continued working as a stable foreman from the date of trial to age 65.

   26 January 2006 – 20 August 2025 (19.5 years: multiplier 616.3)

   $621 per week x 616.3 = $382,722.30.

   $382,722.30 less 15 per cent discount for contingencies = $325,131.96

   $325,131.96 less 30 per cent (retained capacity) = $227,719.79.

Future loss of superannuation benefits

1. While there was some dispute between the parties as to the accuracy of the figures relied upon I intend to accept the defendant's calculations and make an award under this category of loss as follows:

   9% x 1,154 gross per week x 616.3 x 70% (Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192) = $44,806.24.

   $44,806 – 15% ($6,729) = $38,086.

2. This claim for superannuation must also be reduced to reflect the discount for the plaintiff's retained capacity which I have already calculated as being 30%.

   $38,086 less 30% = $26,661.

Past voluntary services

1. The plaintiff said that after leaving hospital he was extremely limited in what he could do and spent two to three weeks either in bed or immobile on a lounge chair.  He said his partner and mother looked after him and provided him with meals, prepared him for showers, helped dress him, took him to physiotherapy and attended to most of his needs.  He was required to undergo physiotherapy three times a week and was driven to and from his physiotherapist by his partner or a friend.  He said approximately three people assisted him in this way for about 12 weeks before he was able to do things for himself.  He also said at least one person had to help him daily for about four to five hours.  On the basis of this evidence I accept the plaintiff's calculation in relation to an award of damages for past voluntary services.

   12 weeks x 35 hours per week x $18 = $7,560.

2. The defendant has argued that the hourly rate claimed by the plaintiff, though acceptable, should be discounted by one third to reflect the fact that a substantial part of the plaintiff's incapacity was due to the injury to his arm.  I am unable to accept that submission.  I am satisfied the leg injury was so serious that it alone would have incapacitated the plaintiff to the extent he claimed during that period of 12 weeks and that the voluntary services provided would still have been necessary even if that had been the only injury.

Interest on past losses

Voluntary Services  $  7,560

Uncompensated loss of earnings        $62,490

$70,050

3 years x 3% x $70,050   =                 $  6,304

General damages

1. As a consequence of the accident the plaintiff suffered extensively from nightmares and flashbacks for a period of about 12 months.  Initially he had as many as 8‑10 nightmares each month but they subsequently diminished to approximately one a month.  Although he has largely overcome this problem he claims he still has nightmares after watching a video clip of any jockey falling in an accident on the track.

2. The accident also adversely affected his pattern of sleep and caused him to become very moody when in the company of his partner and friends.  In mid 2004, when he realised he would never ride again, his mood deteriorated even further.  He was uncertain what his life had in store for him and for the first time realised his financial security was in some jeopardy.  He claimed he did not want to go out and socialise but instead remained at home and watched TV.  He began drinking excessively and gambling.  His weight increased from 52 to 78 kilos and he found he was lacking in motivation.  In the end his relationship with his partner became strained and he sought professional help.  He was placed on medication for his psychological problems and he agreed that both his mood swings and sleep pattern had improved.

3. Following the surgery on his right leg and arm the plaintiff had to undergo reversion surgery on his arm on two occasions and his right leg, which had been fitted with an Ilizarov external fixator, also required revision surgery with bone grafting on 23 October 2002.  He was left with substantial residual disability particularly of the right leg.  After the frame was removed from his right leg a plaster cast was put in its place and he remained in plaster for four months.  Subsequently the bony callus at the site of the fracture of the medial distal tibia had to be shaved.  He is left with a 1.6 centimetre shortening of the right lower limb.  Quite apart from being unable to ride a horse again he is also restricted in many of his activities.  He used to enjoy gardening which he can no longer do.  He is unable to run or jog and even prolonged standing or walking causes discomfort.  As a consequence of his injuries he is suffering from the psychological disorders described by Dr Kenneth Orr and is likely to continue doing so for a period of one to two years.  His sleep patterns have been adversely affected and his lifestyle has changed substantially.  At one point he was drinking excessively and gained a significant amount of weight.  His relationship with his partner became strained and it was at that point he sought professional advice from Dr Kenneth Orr.  The plaintiff also claimed his social life had been adversely affected by his injuries and that he had become more withdrawn and reclusive than in the past.

4. Given the extent of the contribution of the injury to the plaintiff's right arm to his overall condition, but accepting, as I do, that the leg injury has had the most impact on his lifestyle and his capacity to do what he previously enjoyed doing, I believe an appropriate award would be one of $30,000.

Summary of award

Past loss of earning capacity  $  85,472

Fox v Wood   $  15,177

Future loss of earning capacity  $227,719

Future loss of superannuation benefits                  $  26,661

Past voluntary services  $    7,560

Interest on past losses  $    6,304

Special damages (including travel)  $  95,329

General damages  $  30,000

Total  $494,222