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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sestich v Van Heemst

Details

AGLC: Sestich v Van Heemst [2006] WADC 23
Case: [2006] WADC 23
Decision Date: 24 March 2006

CaseChat Overview and Summary

The case of Sestich v Van Heemst involved a dispute between the plaintiff, Sestich, and the defendant, Van Heemst, regarding the negligence of the latter in installing a running rail at a racecourse. Sestich, a professional jockey, sustained injuries while riding a racehorse on the training track at Ascot. The injuries occurred when Sestich collided with the running rail, leading to claims of negligence against Van Heemst for the installation of a rigid tubular steel rail instead of a more flexible aluminium rail. The court was tasked with determining whether Van Heemst was negligent in the installation of the rail, and if the injuries could have been avoided or minimised by a different type of rail. Additionally, the court had to consider the extent to which Sestich's pre-existing injuries contributed to his incapacity to ride or find alternative employment, and the appropriate measure of damages for past and future loss of earning capacity and general damages.

The primary legal issues before the court included establishing whether Van Heemst was negligent in the installation of the running rail and whether an alternative type of rail could have prevented or reduced Sestich's injuries. Furthermore, the court had to evaluate the impact of Sestich's pre-existing injuries on his ability to work and determine the appropriate compensation for his loss of earning capacity and general damages. The court also needed to consider the defence of voluntary assumption of risk and its relevance to the measure of damages.

The court found that Van Heemst was not negligent in the installation of the running rail, as the rigid tubular steel rail was a commonly used and accepted safety measure in horse racing. The court determined that the alternative flexible aluminium rail, while potentially less hazardous, was not a standard practice and would not have necessarily prevented the accident or reduced the severity of Sestich's injuries. The court further found that Sestich's pre-existing injuries contributed to his incapacity to ride or find alternative employment, but his ability to earn a living was still impaired due to the injuries sustained in the accident. The court awarded damages for past and future loss of earning capacity, as well as general damages, taking into account the plaintiff's diminished capacity to work and the impact of the injuries on his life. The court also considered the defence of voluntary assumption of risk, but found that it did not absolve the defendant of liability for the injuries suffered by the plaintiff.

The court ordered that Van Heemst pay Sestich damages for past and future loss of earning capacity, as well as general damages. The exact amount of the damages was determined based on the evidence presented and the court's assessment of the impact of the injuries on Sestich's life. The court also considered the contribution of Sestich's pre-existing injuries to his incapacity to ride or find alternative employment, but found that the injuries sustained in the accident were a significant factor in his inability to work. The court's decision provided clarity on the issues of negligence, causation, and the appropriate measure of damages in cases involving professional jockeys and racecourse safety.

Orders