Seymour v Racing Queensland Limited
[2012] QCAT 241
•18 June 2012
| CITATION: | Seymour v Racing Queensland Limited [2012] QCAT 241 |
| PARTIES: | Arthur Seymour (Applicant/Appellant) |
| v | |
| Racing Queensland Limited (Responndent) |
| APPLICATION NUMBER: | OCR145-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 25 May 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Michael Howe, Member |
| DELIVERED ON: | 18 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The decision of Racing Queensland made on 10 February 2012 is confirmed. |
| CATCHWORDS: | Racing – Gear Register – carelessness or neglect in fitting gear – test for duty of care – statutory basis of Rules of Racing – breach of the rules of sport – Rule 140A – serious consequences of breach of rules – considerations of penalty Queensland Civil and Administrative Tribunal Act 2009, s 150 Clements v Racing Victoria Ltd (Occupational and Business Regulation) [2010] VCAT 1144 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT:Mr Seymour was represented by Mr Glynn SC of counsel
RESPONDENT: Racing Queensland was represented by Mr Murdock SC of counsel
REASONS FOR DECISION
Mr Oliver, Senior Member
In this matter the Tribunal consisted of Mr Howe, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
Mr Howe, Member
Background
On 12 November, 2011 the Julia Creek Turf Club hosted a 5 card race meeting. After the meeting two horses participated in a trackwork gallop, Under Construction ridden by jockey Corey Gilby and Slippery Position ridden by jockey Terrence Hill.
The riders took their horses out and trotted around together. Slippery Position was on the outside. They commenced working the horses from 1,400m out and approaching the 600m mark stayed together in a controlled gallop. Under Construction was 2 to 4m off the rail and there was another half to a full horse width between them.
Slippery Position was probably slightly ahead going past the post. Some short distance after the post Under Construction fell, abruptly. The horse appeared to somersault and Corey Gilby was thrown heavily on to the track sustaining serious injuries. He subsequently died from those injuries.
Mr Seymour was the owner and licensed trainer of Under Construction. He had bandaged all of Under Construction’s legs prior to the gallop. On 15 February 2012 a panel of Stewards enquiring into the circumstances of the fall and the dislodging of the rider found Mr Seymour guilty of breaching Australian Rules of Racing in that he was neglectful in presenting his horse for trackwork without appropriately secured bandages.
The Charges
Mr Seymour was charged pursuant to rule 140A of the Rules of Racing which states "any person guilty of carelessness or neglect in the saddling or applying and fitting of gear to a horse when it is presented for a race, official trial, jump-out or trackwork commits a breach of these Rules."
The particulars of the charge against Mr Seymour were that as trainer of Under Construction he was negligent in fitting the bandages to that horse when presenting it for trackwork on that day by failing to secure the bandages with stitching or electrical tape as required by the nationally approved Gear Register.
Section 140B(1) stipulates "only gear and conditions of use that have been expressly approved by the Chairman of Stewards, and included in the National Gear Register, may be used on any course in a race, official trial, jump-out or in trackwork. Provided that the Stewards may approve other gear to be used in trackwork."
The Stewards concluded at the end of the hearing that it was evident that the bandages on Under Construction had not been secured that day either by stitching or by electrical tape as required by the rules and accordingly they found the charge made out and Mr Seymour guilty of the charge as specified and suspended his trainer’s licence for 6 months. Mr Seymour now seeks from the Tribunal a review of the substantive findings against him and the penalty.
The Bandages
On the day in question at Julia Creek Mr Seymour put bandages on Under Construction’s legs assisted by his strapper, Ms Steadman, who then checked them. They were brand-new bandages with a Velcro fitting. They were standard bandages. However, Mr Seymour did not however stitch them up the outside.
In evidence before the Tribunal and prior to that before the stewards Mr Seymour said he was unaware of the Gear Register and didn't know he was required to stitch the bandages he had fitted. In the Tribunal he said he had never been made aware that this was required for trackwork. He distinguished trackwork from racing because he said the horses were under immense pressure in racing and their legs had to be protected from injury. Mr Seymour believed the bandages he applied to Under Construction were sufficient with Velcro attachments only.
He doesn't accept that one of the bandages came loose during the track gallop and unravelled from the leg of Under Construction. He said when he caught the horse one of the bandages was dragging but that was because he may have got caught on a fence after running from the track and through a number of stalls after the fall. He didn't see any loose bandage during the gallop.
When racing, Mr Seymour uses different bandages. He uses elastoplast and stitches them. According to Mr Seymour he has only put his horses out to have a track gallop as he did with Under Construction on two occasions. In 40 years of using bandages he has never had an accident. He has never seen the Gear Register. He said he wasn't aware that he was supposed to stitch bandages for trackwork.
Tanya Parry was the trainer of Slippery Position, the other horse that galloped with Under Construction on that day, and she observed the horses gallop the whole way. In her statement she says she had an uninterrupted view of the fall. She states as they came past the winning post she noticed that a bandage had come loose on the nearside front of Under Construction. She said to Ms Steadman, who was watching the gallop with her, that the bandage was flapping and she no sooner said that when the horse went down. Ms Steadman confirms in her evidence that Ms Parry mentioned the bandage at the time although Ms Steadman herself did not see it.
Alana Steadman provided a statement to the stewards. She watched Under Construction gallop and had an uninterrupted view of the fall as well. On that day she had checked the bandages on Under Construction after Mr Seymour had put them on the horse. She said they weren't stitched because they were "exercise bandages". She confirmed she was watching the gallop with Tanya Parry and she recalls Ms Parry commenting "look at the bandage". Ms Steadman said it was a front bandage that had come off but she couldn’t say whether it was near or far side.
Under Construction survived the fall with next to no injuries and was subsequently caught off track. Ms Steadman says when the horse was caught, Under Construction had a front bandage hanging off although she wasn't sure which side. The hanging bandage looked as if it had been stood on "or something". That bandage had approximately 400mm torn off its Velcro fastener strip.
The other jockey, Terrence Hill, didn't notice a loose bandage during the gallop. His evidence was that if the bandage was flopping he'd assume you'd hear something but he didn't hear anything.
Craig Gabriel was a strapper who was there that day and he saw the end of the gallop. He gave evidence that he had been told it was the bandages that had caused the accident but he was unable to say that he had seen that. The only time he saw bandages coming off was after the fall, when Under Construction got up.
The veterinary surgeon attending the meeting was Donna Webber. Her evidence was that she heard the horses galloping down the straight and she went out to watch them. Both of the horses in the track gallop were travelling fine past the post. She noticed something flapping around under the horses. At that stage she thought it was a girth cover and she was surprised neither horse had a problem about that flapping around beneath them. She stepped back into the swab box but then she heard a commotion and stepped back out to see Corey Gilby prone on the track. She saw something like a rubberised bandage around the leg of Under Construction flicking around. At that stage she thought Under Construction had shied from that bandage. Ms Webber was clear in her evidence about seeing something flapping loose as the horses went past her. She said "Once I came out and saw the horse running around I realised it was a bandage around its fetlock that was sort of flicking around." She hadn't heard any sound from a flapping bandage however.
Mr Seymour’s evidence is that when Under Construction went past him to the best of his knowledge the bandages were all on. Under Construction was on the inside track and Slippery Position outside him. When Mr Seymour caught the horse after the fall one of the bandages wasn't entirely off but it had a length dragging. He said the horse "had been down there and got caught in a fence and come back" referring to an area amongst the stables.
Interference
Mr Seymour told the stewards that the other jockey, Terrence Hill, came up to him after the gallop and asked about Under Construction and whether he had broken his leg. Mr Seymour said Mr Hill said to him "Well he clipped my horse and I thought he broke his fetlock." Mr Seymour confirmed that conversation in evidence given to the Tribunal at hearing.
Ms Steadman also told the stewards that Mr Hill had said to her after the gallop "I think I hit your horse and broke his front leg." Ms Steadman's evidence was that Mr Hill had presumed he had clipped Under Construction and that's why he had fallen. Ms Steadman was not available to the Tribunal for cross examination on this point. Her absence was noted by Mr Murdock SC and her statements to the stewards admitted with that caveat in mind.
Mr Hill attended the Tribunal and gave evidence. He said the horses did not clip hooves. The slightest touch between horses creates a difference in stride and he has had that on numerous other occasions, but not that day. He denied any conversation with Mr Seymour after the fall and he said he did not suggest to Ms Steadman that his horse may have caused the accident or that he thought Under Construction had broken its leg. In his evidence before the Tribunal he said he heard a sound which he initially thought had been Under Construction breaking its fetlock at the "crossing", a compacted area that crossed the track after the winning post. Subsequently he realized the fall was some 15m further ahead from where the horse fell. He had asked Ms Steadman after the gallop if Under Construction had broken its front fetlock and she had replied no that the bandages had snapped.
In his evidence before the stewards Mr Hill had said there had been no trouble between him and Corey Gilby and no contact. The two riders had stayed neck and neck all the way to the post and Mr Hill had kept looking over his shoulder waiting for Mr Gilby to make his move as had been planned but he could see Under Construction wasn't able to go any quicker. Mr Hill simply kept his horse neck and neck with Under Construction.
Ms Parry, Slippery Position's trainer, told the stewards there had been an arm’s length gap between the riders and she hadn't seen a shift from either horse which could have caused the fall.
The Track
Mr Brummell was a jockey there that day. He had ridden in nearly all the races on the card. Mr Brummell told the stewards that he thought the fall had a lot to do with Under Construction stumbling in a heavy patch on the track just after the "crossing" referred to in Mr Hill' s evidence. He noticed the heavy patch in the first race and stayed clear of it for the rest of the meeting. He thought the heavy patch was exactly where the fall happened. He said most of the other riders had noticed the heavy patch on the day and they stayed away from it.
According to other people at Julia Creek that day however, the track was fine. Jockey Rodney Sue-San rode all races but he didn't have any problems with the track. He thought it was a little heavy on the inside and best to stay out "four off". It was nothing really. Ms Gabrielle-Royes, a horse trainer, had two horses in races that day and had a horse do a track gallop at the very end. She said she was satisfied with the condition of the track. Trackwork rider Rhiannon Payne said she had spoken to Corey Gilby that day and he had not raised any concerns over the racing surface. She said Corey had said that the track was beautiful, after the post a bit soft on the corner but nothing to worry about.
A number of other witnesses also agreed that the track was in good condition on the day. The small area of heavy going near the fence was not unusual and no problem for safety.
Mr Wiles, a trainer, who also works for the council, gave evidence that the council had done a lot of work on the track. He had four runners that day and none of his jockeys had anything negative to say about the track. He said he had been training at Julia Creek racecourse for 20-odd years and Under Construction was probably only the second horse he had ever seen fall there.
The Position of Witnesses
It would appear that the three witnesses in the best position to witness the latter part of the gallop were Ms Steadman, Ms Parry and Ms Webber. Ms Steadman was standing with Ms Parry on the outside of the track at the mounting yard gate which is approximately 30m past the winning post. Ms Webber was at the swab box which was approximately 20m from the winning post and 40 to 50m to where Mr Gilby ended up on the ground.
Review by the Tribunal
Given the penalty imposed against Mr Seymour was disqualification for a period in excess of 3 months, Mr Seymour’s right of review is directly to this Tribunal[1] rather initially to the First Level Appeals Committee[2].
[1] Section 150 QCAT Act.
[2] R1(2) Racing Queensland Limited Local Rules (All Codes).
Breach of AR.140A
Mr Glynn SC for Mr Seymour submitted Rule 140A requires the limited consideration of how the bandage was fitted and that the fitting was completed once the Velcro was fixed in place. It is at that point that one should determine whether the Velcro bandage has been carelessly fixed or applied.
I cannot agree. Mr Seymour has not been charged under Rule 140B which to my mind is the less serious charge of not using approved gear or not fitting it as required. He has been charged with carelessness or neglect in fitting gear to a horse presented for trackwork.
The Gear Register
There is a uniform approach in Australia to gear associated with the sport of thoroughbred racing. In all states it is provided by Australian Rule of Racing 140B that only gear and conditions of use included in the National Gear Register may be used on any horse in a race, official barrier trial or in trackwork.
The Gear Register is available for download from the webpage of Racing Queensland. At page 11 of the Gear Register it is provided that "Standard bandages are approved for the purposes of AR.140B(1), but must be stitched the full-length on the outside of the leg in contrasting thread.”
The Statutory Basis of the Rules of Racing
In Victoria the Australian Rules of Racing are enforced on a contractual basis between parties involved in the racing industry[3]. Not so in Queensland.
[3]Clements v Racing Victoria Ltd (Occupational and Business Regulation) [2010] VCAT 1144.
By the Racing Act 2002 each control body responsible for one of the codes of racing (Thoroughbred, Harness Racing, Greyhound) was given a function of managing its code of racing[4]. One of the ways it was to do so is by making rules of racing[5]. The rules of racing are statutory instruments[6]. On 1 July 2010 the three racing codes became one control body organisation, Racing Queensland Limited. The Racing Act 2002 binds all people as far as possible[7].
[4] Section 78(1)(a).
[5] Section 78(2)(b).
[6] Section 79.
[7] Section 3.
Mr Seymour admits he was ignorant of the requirement in the Gear Register to stitch standard bandages regardless of its use being for trackwork or racing. Mr Glynn SC says therefore he could not be negligent in not also stitching the bandage because he did not know it was necessary to do that. Evidence in the form of a photograph of a horse doing trackwork at Doomben which appeared in the Courier Mail newspaper of 18 May, 2012 was tendered with a submission that the horse depicted there was also wearing bandages without stitching. The evidence of Mr Mawhinney, a panel steward at Julia Creek, was also said to show that that gentleman did not realise stitching was necessary with a Velcro bandage.
I think it is unfair to say Mr Mawhinney was adopting that position simply on the basis that he saw Under Construction going out to run and didn't notice anything irregular with the horse’s gear, even if the requirement in the Gear Register is that the stitching on standard bandages be in a contrasting colour. As to the photograph in the Courier Mail, I am far from convinced that that photograph depicts non-stitched bandages being used in trackwork. The photograph is not quite from the necessary angle to be able to draw that clear conclusion. In any case the Rules of Racing bind all persons associated with the racing industry by force of the Racing Act 2002. The Rules of Racing and the linked Gear Register bind Mr Seymour regardless of his personal knowledge of them[8] or the failure of others in the industry to observe them.
[8] John Zucal & Ors v Harper [2005] WASCA 76 at para [30].
Carelessness or Neglect in Fitting Gear
The rules of all sports help identify, put into perspective and endeavour to eliminate or avoid as far as possible certain risks, some very serious, that may be attendant in the activities. The rules of sports assist participants to understand what an ordinary person should do or understand to be necessary to avoid such risks.
The test for carelessness or neglect in applying or fitting gear under Rule 140A is what would the reasonable person in the particular situation associated with the fitting of the gear on the day have done[9]? If Mr Seymour failed to act to that standard in fitting the bandages to Under Construction he breached the duty of care specified in Rule 140A.
[9] Pollard v Trude [2008] QSC 119.
Simply failing to stitch bandages as specified in the Gear Register is a breach of Rule 140B but not necessarily Rule 140A which incorporates the concept of duty of care. A person may breach the rules of a sport and not be acting unreasonably. Non-compliance with rules, conventions or customs is a consideration when determining the question of reasonableness, but not the only consideration, and it may hold much or hold little weight as the circumstances dictate[10].
[10] Rootes v Shelton (1967) 116 CLR 383 at 389 per Kitto J.
To my mind the rules associated with racing should be accorded considerable weight and the following statement by Justice Chesterman in Kliese v Pellling explains why: “Thoroughbred horse racing is a competitive business which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are limited."[11]
[11] [1998] QSC 112.
The Rules of Racing and the Gear Register have developed over many years and as a result of consensus following massive input of experience and thought by those involved in the industry Australia wide. In the Gear Register standard bandages must be stitched the full-length on the outside of the leg in contrasting thread. With self-adhesive bandages they "maybe" stitched or electrical tape applied at least two times around the circumference of the bandage. With adhesive bandages these also must be stitched with contrasting thread. It is obvious that a great deal of thought has gone into the requirement of stitching. It is obvious that that requirement is there to ensure the bandages do not unravel.
The review jurisdiction of the Tribunal is by way of fresh hearing on the merits. There is no presumption that the decision of the stewards was correct[12]. This Tribunal endeavours to produce the correct and preferable decision[13]. The Tribunal is not confined to the material upon which the original decision was made. The standard of proof required by a Tribunal is proof to its reasonable satisfaction. The standard varies in accordance with the seriousness or importance of the issue taking into account that serious charges and outcomes may require a standard of proof higher than would otherwise be the case[14].
[12] Kehl v Board of Professional Engineers of Qld [2010] QCATA 58 at [9].
[13] Section 20 QCAT Act.
[14] Briginshaw v Briginshaw (1938) 60 CLR 336.
I have considered the evidence and I take into account the seriousness of the charges and consequences for Mr Seymour as a professional trainer, both as regards to his finances and to the stigma associated with the death of Mr Gilby.
In my opinion the evidence given by Ms Parry and Ms Webber is convincing and consistent and not controverted in any meaningful way. I accept their evidence that a bandage on Under Construction had come loose and an end was flapping by the time the horses in the track gallop passed the finishing post. I also accept the evidence of Mr Hill that to his knowledge his horse did not interfere with Under Construction. I found him to be a forthright witness and apparently knowledgeable. Mr Brummell stands alone in having any concerns about the condition of the track on that day and I therefore determine, in light of the preponderance of contradictory opinion, that there was nothing wrong with the track.
In light of the above I am therefore satisfied that Mr Seymour's failure to stitch the Velcro bandages as required by the Gear Register on the day in question allowed one of the bandages on Under Construction to come loose, and that omission constituted carelessness and negligence in fitting gear in breach of Rule 140A of the Rules of Racing.
Penalty
In all the circumstances it is most probably the case that the loose bandage on Under Construction caused that horse to fall. There is no direct evidence on that. The fall happened very quickly. I have however concluded that a bandage was loose and flapping on Under Construction immediately before the fall. The condition of the track and any interference from the other rider do not appear to be credible causative factors.
Approximately 400mm of the Velcro tie was torn from one of the bandages after the fall, and the jagged nature of the break would indicate it had been torn off. Mr Seymour suggested it had been torn off after Under Construction ran from the track but there is no direct evidence to support that assertion. Ms Webber’s evidence, which I accept, is that she saw a loose bandage around the fetlock of Under Construction that was flicking around after the fall, and I take it that means before that animal left the track. Mr Gabriel said he saw about a metre and a half of loose bandage, probably on the near side foreleg of the horse, when it got up from the fall.
Mr Hill heard a snapping sound just before the fall and that could well have been the Velcro strap tearing as a hoof came down on it. Ms Steadman said the torn bandage looked like it had been stepped on.
The logical inference must be that Under Construction tripped by stepping on the loose end of a bandage dragging from one of its forelegs.
The task of imposing a penalty involves a balance between the severity of the offence, the need for deterrence and any mitigating factors[15]. Where an infringement of the rules leads to catastrophic results as was the case in this matter, a stern penalty is appropriate as a warning to others. This is particularly the case where the rule concerned is obviously in place to prevent scenarios resulting in tragedies like the one before us. The words of Justice Chesterman again come to mind as regards the opportunity for injury being abundant in this sport. Where small effort is required to prevent serious consequences the breach thereof must be strongly discouraged by sanction.
[15] El-Issa v Racing Queensland Limited [2011] QCATA 280.
I accept that Mr Seymour did not knowingly flaunt the rules. Indeed he did not even know of the existence of the Gear Register, which ignorance however is not an exculpatory factor for him. I have no doubt there has not been a day gone by since the accident when he hasn’t wondered how there has been such ill consequence from such inadvertent omission as a failure to stitch bandages.
To my mind one should take into account his previous good disciplinary history and the financial consequences to him when concluding as to penalty. In my opinion the stewards’ decision on penalty was appropriate in all the circumstances and should be confirmed.
Orders
The decision of Racing Queensland made on 10 February 2012 is confirmed.
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