Victorian WorkCover Authority v Rule
[2021] VCC 1591
•22 October 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-19-01184
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| JACOB LUKE RULE | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23, 24, 27 April and 1 and 5 May 2020 | |
DATE OF JUDGMENT: | 22 October 2021 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Rule | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1591 | |
REASONS FOR JUDGMENT
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Subject:RECOVERY PROCEEDING – WORKCOVER
Catchwords: Negligence – duty of care – jockey injured in thoroughbred race – content of duty of care
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s369, s435; Wrongs Act 1958, Part X, s47, s48-s59; Civil Liability Act 2002 (NSW), s5K, s5L
Cases Cited:Rootes v Shelton (1967) 116 CLR 383; Appo v Stanley [2010] QSC 383; Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412; Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd [2015] VSC 58; Victorian WorkCover Authority v Monash University [2016] VSC 178; Wyong Shire Council v Shirt [1980] HCA 12; Caldwell v McGuire [2001] EWCA 1054; Goode v Angland [2016] NSWSC 1014; Singh v Lynch [2019] NSWSC 1403; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Wooldridge v Sumner [1963] 2 QB 43; Stusser v City of Melbourne (unreported, VSCA, 16 September 1997); Kliese v Pelling [1998] QSC 112; Dodge v Snell [2011] TASSC 19; March v EM and H Stramare Pty Ltd (1991) 171 CLR 506; DSG Pty Ltd v Victorian WorkCover Authority [2008] VSCA 42
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Hayes QC with Mr J L Batten | Wisewould Mahony |
| For the Defendant | Mr D Masel SC with Mr D Wallis | Moray & Agnew Lawyers |
HIS HONOUR:
1The plaintiff’s claim is a recovery proceeding brought pursuant to s369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”).
2Section 369(1) of the WIRCA states:
“Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages in respect of the injury or death or that would have created such a liability if the injury or death had been caused in Victoria, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.”
3Subsection (3) states:
“The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a) the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b) the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
where—
A is the amount of damages (disregarding the extent, if any, whereby any other person’s act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
B [not applicable];
C [not applicable];
X is the extent, expressed as a percentage, whereby the third party’s act, default or negligence caused or contributed to the injury or death.”
The Plaintiff’s submissions
4The injury for which compensation has been paid to the worker within the meaning of s369(3)(a) of the WIRCA of $311,386.55 (which has been agreed between the parties) arises from a race fall which occurred in Race 3 at Bairnsdale on 13 December 2016 (“the race”) in which the worker, jockey, Ibrahim Gundogdu (“Gundogdu”), was injured.
5The plaintiff alleges that Gundogdu’s injuries were caused by the negligence of the defendant, also a jockey, Jacob Rule (“Rule”), who, it is alleged, is a third party within the meaning of the WIRCA.
6Factor A under s369(3) of the WIRCA has been agreed between the parties in the amount of $850,000. It is common ground that Factor C in this case should be considered to be nil, and Factor B is not applicable. Accordingly, the court is required to determine Factor X, which is to be determined in accordance with the formula cited above.
7The plaintiff seeks statutory compensation from the defendant by way of indemnity.
Relevant background
8The plaintiff’s case in negligence centres around the actions principally of two jockeys, the defendant, Rule, and the injured jockey, Gundogdu, from the top of the straight, approximately 200 metres from the winning post, until a point of impact between their two mounts, ‘Preemptive’ and ‘She’s A Pluck’ respectively. The point of impact was some 30 to 50 metres from the winning post. At this point, the front forelegs of She’s A Pluck came into contact with the hindlegs of Preemptive, causing She’s A Pluck to stumble and fall, and causing Gundogdu to be ejected from the saddle, consequently suffering serious head injuries.
9In its Statement of Claim, the plaintiff alleges that Rule failed to:
(a) maintain Preemptive’s line [in the straight]
(b) ensure Preemptive was clear of She’s A Pluck before he moved out [into She’s A Pluck’s line]
(c) take steps to ensure that Preemptive ran in a true [straight] line
(d) have any adequate regard for Gundogdu and She’s A Pluck, and
(e) rode Preemptive in a careless fashion in contravention of AR137a.
10Accordingly, the plaintiff’s case is that Rule carelessly, and further negligently, allowed Preemptive to shift out in the straight into the line of She’s A Pluck, thereby causing Preemptive to make contact with She’s A Pluck, with Gundogdu being consequently dislodged.
11The parties agree that the extent Preemptive shifted out in the straight is a question of fact for the Court to determine.
12The relevant evidence concerning this issue is:
(a) the side-on and head-on race film (“the film”);[1]
(b) the oral testimony of the riders, Gundogdu and Rule, and also Nathan Rose (“Rose”), the rider of ‘Capanello’, the eventual winner of the race;
(c) the evidence of the steward presiding over the race, Brett Wright (“Wright”);
(d) the transcript of the Stewards Inquiry conducted on 6 January 2017;[2]
(e) the expert opinion led from John Schreck OAM (“Schreck”) on behalf of the plaintiff;[3] and
(f) the expert opinion of William Burnett (“Burnett”) on behalf of the defendant.[4]
[1]Exhibit C
[2]Exhibit A
[3]Exhibit B
[4]Exhibit 1
The evidence
13At the top of the straight upon straightening, according to Rule[5] and Schreck,[6] Preemptive was racing about one-and-a-half horses out from the rail.
[5]Transcript (“T”) 266
[6]T132
14It would appear that the fall occurred approximately 30 to 50 metres from the winning post. In re‑examination, Rule opined the fall occurred at approximately 30 metres from the winning post,[7] whereas the plaintiff submits the film reveals the point of impact being about 50 metres from the winning post.
[7]T335
15In any event, at the point of impact, Rule accepted that Preemptive was racing about five horses out from the rail,[8] whereas Schreck estimated Preemptive was racing about four-and-a-half horses out from the rail at the point of impact.[9] Burnett’s opinion was that the point of impact was about four to four-and-three-quarter horses off the rail.[10]
[8]T267
[9]T132
[10]T367-368
16It was conceded by Burnett that Rule had not kept Preemptive straight at the 100-metre mark,[11] and an examination of the film suggests that it is more likely there was a gradual shift from the top of the straight to the point of impact as being in the vicinity of three to three-and-a-half horse widths. Burnett considered that there had been a shift more like two horse widths over the period.[12]
[11]T367
[12]T370-371
17Given that Rule accepted that the distance from where Preemptive was racing at the top of the straight was one-and-a-half horses off the rail,[13] I consider that the actual shift is indeed three to three-and-a-half horses off the rail. Burnett opined that the shift off the rail was “marginal”. Schreck, on the other hand, regarded such a suggestion as “fanciful”.[14]
[13]T265 and T267
[14]Exhibit B, Plaintiff’s Court Book (“PCB”) 69
18In the Stewards Enquiry held on 6 January 2017, Rule accepted that he had on Preemptive shifted out into the line of She’s A Pluck “at a crucial stage”, admitted he “moved the horse over”, and stated he had “not doubt[ed] [he] come out of [his] line ... into Gundogdu’s line”.[15]
[15]Exhibit A, PCB 115 (page 9) and PCB 118 (page 12)
19While under cross-examination, Rule accepted that his mount was shifting out from the top of the straight to the point of impact and had shifted out approximately three-and-a-half horses off the rail[16] and that he had shifted into Gundogdu’s line in the straight, when he knew he was obliged to keep Preemptive running straight.[17] Also Rule accepted that he had shifted out three-and-a-half horses over a distance of about 200 metres in the straight.[18]
[16]T267
[17]T278
[18]T277
20Rule also accepted that for the entirety of the straight, he was aware She’s A Pluck was racing to the outside of Preemptive and was never more than about one length away from his mount.[19]
[19]T264-265 and T277
21It would appear from viewing the film that more than 100 metres from the winning post, Rule pulled the whip on Preemptive, striking the horse’s off side quarter/flank with his right hand twice up until around the 100-metre mark, and then vigorously striking his mount’s off side quarter/flank with the whip through to the finish.[20]
[20]T275-276
22It was common ground that for a jockey to pull the whip in the closing stages of a race is to encourage the horse to race as fast as it is able.[21] Rule conceded, whilst pulling the whip on Preemptive, his primary focus was directed to trying to win the race.[22]
[21]T273
[22]T276
23Further, Rule accepted that he did not stop riding (ie both hands on the reins and cease using the whip) and straighten Preemptive at any time in the straight.[23] I accept the film reveals Rule riding Preemptive out vigorously in attempting to win the race.
[23]T287
24According to Schreck, Rule could and should have stopped riding and straightened Preemptive in the straight as his mount shifted out, taking She’s A Pluck’s line, before the point of impact.[24] As a consequence, according to Schreck, after Preemptive continued to shift into the line of She’s A Pluck, the latter’s forelegs clipped the heels of Preemptive’s hindlegs and fell about 50 metres from the finish, dislodging and injuring Gundogdu in the process.[25]
[24]Exhibit B, PCB 69; T120-121
[25]Exhibit B, PCB 69
25In evidence, Rule acknowledged that he knew that it was an accepted racing practice or guideline, for reasons of safety, that the rider of a horse has to keep his or her mount racing in a straight line in the straight and he is not permitted to shift off a straight line into the line of another horse unless he is two lengths clear of that other horse.[26]
[26]T267-269, T278
26Schreck’s evidence was that it is accepted practice that a jockey is required to stop riding and straighten his mount if it is shifting off its line, even if that risks a horse and rider winning or finishing in a place in a race.[27]
[27]Exhibit B, PCB 69
27It was agreed between Schreck and Burnett that it was a common practice that a jockey should stop riding and straighten his mount in the straight; however, Burnett was of the opinion that it did not apply in the circumstances facing Rule at the time. For his own part, Rule rejected the suggestion that in the circumstances he was in at the time, he should have stopped riding and straightened Preemptive.[28]
[28]T282-283
28However, it was common ground amongst all jockeys giving evidence in the case that the obligation to ride safely (AR137a) takes priority over the obligation to ride out their mount to the finish (AR135 and AR137b).[29]
[29]T268
29The plaintiff submits that had Rule stopped riding and straightened Preemptive, Gundogdu was not likely to have been injured.
The Defendant’s submissions
30The defendant submits that Rule’s mount Preemptive gradually drifted off its line, “as horses commonly do”. It is submitted Rule used the “tools” available to him to control the drift, with partial success. It is submitted that the film reveals that She’s A Pluck drifted out with Preemptive, as horses riding side by side commonly do. Accordingly, the gradual drift did not abruptly cut off She’s A Pluck, which, it is submitted, at all material times “had a run”.
31It was further submitted:
“Things changed in the two seconds or so immediately before the fall. For some reason (possibly shying at the approach of Capanello, possibly shying at Rose’s whip, possibly simply tiring and ‘wobbling’), She’s a Pluck diverged abruptly in behind Preemptive. At about the same time, or a moment later, Preemptive diverged no more than about half a horse width out, possibly shying at the winning post or in response to the sudden movement of She’s a Pluck. That abrupt divergence of Preemptive was probably not a cause of the fall, which was, it seems, by reason of She’s a Pluck’s abrupt movement in, already inevitable. She’s a Pluck fell in onto Preemptive’s heels. The abrupt movement of She’s a Pluck (or possibly She’s a Pluck and Preemptive) was or were the common sense ‘March v Stramare cause(s)’ of the accident.
Contrary to the VWA’s case, while the horses gradually drifted as they raced down the home straight neither the Rules of Racing nor, more significantly, the duty of care owed by Rule to Gundogdu, obliged him to ‘stop riding’. As there had been no interference (as in cutting off ‘a run’ by crossing in front when the lead horse was insufficiently clear, or hard bumping), Rule had choices other than to ‘stop riding’ (an option, which if adopted, may have itself caused safety concern and may have brought him into breach of his obligation to give his mount, which was very much in contention, the best opportunity to win or secure a place). His acts (or omissions) while riding down the home straight were reasonable responses to dynamic situations. In any event, his conduct is not to be assessed too finely, nor with the wisdom of hindsight. There was no negligence on his part. Nor was the gradual divergence down the home straight a common sense ‘March v Stramare’ or legal cause of the accident.
The abrupt shift or shifts in the final second or two occurred without negligence.”
32In essence, the defendant submits that the evidence discloses as follows:
(a) there was a gradual drift or shift of Preemptive over the course of the home straight, with She’s A Pluck moving out and remaining more or less parallel with Preemptive;
(b) shortly prior to the fall there was an abrupt shift inwards by She’s A Pluck, and later still outwards by Preemptive;
(c) a shift of, say, two-and-a-half to three-and-a-half horse widths over a distance of about 200 metres should be fairly described as a “gradual shift”;
(d) the gradual drift or shift did not involve cutting off a run in the dynamic context in which it occurred, and stands in stark contrast to the abrupt shift clearly seen in the film between about 13:36:05 and 07 seconds.
33The defendant further submits that in any event, the distance that Preemptive moves out from the rail is not relevant in a causative sense, in that She’s A Pluck moves out with Preemptive, and with no real interference caused.
34Further, the defendant submits that there was no deliberate divergence; rather, the evidence establishes that both mounts wanted to “lay out”, and both jockeys were attempting to prevent them from doing so.
35It is further submitted that at no point did Preemptive run into the line of She’s A Pluck, and racing in this regard is of its nature dynamic.
36It was further submitted that the purpose and application of the “two length” unwritten rule concerns cutting off a dynamic “run” (at least insofar as safety is concerned). It was submitted that, save as to the abrupt shift or shifts in the final seconds (which occurred without negligence), the unwritten rule does not concern what occurred in this case.
Content of duty of care
37It is common ground between the parties that, subject to any voluntary assumption of risk, a participant in a sporting contest such as a horse race owes other participants a duty of care to avoid creating a foreseeable risk of injury to another jockey.[30]
[30]See Rootes v Shelton (1967) 116 CLR 383; Appo v Stanley [2010] QSC 383 at paragraph [39]
38The parties do not agree as to whether, when determining liability in the Victorian WorkCover Authority’s (“VWA”) recovery action, Part X of the Wrongs Act 1958 (“Wrongs Act”) applies. The defendant relies on single judge decisions of the Victorian Supreme Court, being Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd;[31] Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd,[32] and Victorian WorkCover Authority v Monash University,[33] to the effect that such a provision does apply. Accordingly, it is submitted, liability in the VWA’s claim is to be determined applying the common law as modified by Part X of the Wrongs Act.
[31][2012] VSC 412 at paragraph [37] per Beach J
[32][2015] VSC 58 at paragraph [63] per Kaye JA
[33][2016] VSC 178 at paragraph [41] per McDonald J
39Senior Counsel for the plaintiff submits, in essence, that the single judge decisions are “obiter”, and that the stated interpretation does not promote the purpose or object of the Act as per the Second Reading Speech and the Explanatory Memorandum for the Compensation and Superannuation Legislation Amendment Bill 2008 (Vic) which had been amended in order to ensure that none of the provisions of the Wrongs Act did apply to recovery actions against third parties.
40In the confines of the circumstances of this case, I find I do not need to resolve this apparent conflict, and am content to adopt the reasoning as postulated by defence counsel, and, accordingly, follow the single judge decisions of the Supreme Court set out above.
41Section 47 of the Wrongs Act states:
“Except as provided by this Part, this Part is not intended to affect the common law.”
42Accordingly, the common law template as recognised in Wyong Shire Council v Shirt[34] is still to be regarded as an appropriate template for the common law, but “as modified by Part 10 of the Wrongs Act”.[35]
[34][1980] HCA 12
[35]See Defendant’s Outline of Submissions, 30 April 2020, paragraph [10]
43Subsection (1) of s48 of the Wrongs Act provides:
“48General principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
(3)For the purposes of subsection (1)(b)—
(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.”
44Defence counsel takes no issue that the plaintiff has established the ingredients under s48(1)(a) and (b) of the Wrongs Act, but submits that the Court requires to pay close attention to requirement s48(1)(c), particularly to the words “in the circumstances”, which, he submits, informs the scope and content of the duty.[36]
[36]See Defendant’s Outline of Submissions, 30 April 2020, paragraph [13]
45Defence counsel further submits:
“ The context in which the scope and content is to be identified, as well as the context in which breach has to be determined, and the consequential proposition that a court ought not to be too delicate in its assessment of the defendant’s conduct which is said to have been negligent, are stated by Chesterman J (as his Honour then was) in Kliese v Pelling [1998] QSC 112, unreported, 4 June 1998, at page 12:
‘… the court ought not to be too delicate in its assessment of the defendant’s conduct which is said to have been negligent. Thoroughbred horseracing is a competitive business which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices to jockeys to avoid or reduce risk are limited. It is, no doubt, for these reasons that claims for damages arising out of horse races have been rare and are likely to remain so.’”[37]
[37]See Defendant’s Outline of Submissions, 30 April 2020, paragraph [18]
46Further, this passage is reproduced in full or in part with approval by McMeekin J in Appo v Stanley;[38] by Tuckey LJ (with whom the other members of the Court agreed) in Caldwell v McGuire;[39] by Harrison J in Goode v Angland,[40] and by Fagan J in Singh v Lynch.[41]
[38](Op cit) at paragraph [41]
[39][2001] EWCA 1054 at paragraph [27]
[40][2016] NSWSC 1014 at paragraph [109]
[41][2019] NSWSC 1403 at paragraph [91]
47Thus, he submits, the duty imposed on a jockey to another jockey in a highly competitive professional horserace is not to be equated with the stringent duty owed, for example, by an employer to an employee or by a school to a child, where often even the most minor failure to prevent harm, bordering on strict liability, may sound in liability in negligence.
48Here, where the defendant, Rule, did not challenge a steward’s finding that he had breached the Rules of Racing, defence counsel concedes that such a breach is a relevant circumstance but is far from determinative.
49In Rootes v Shelton,[42] Kitto J observed:
“... a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the ‘rules of the game’. Non‑compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.”
[42](Op cit) at paragraph [6]
50Thus, in Caldwell v Maguire[43] and again in Singh v Lynch,[44] there were findings that the defendants were not negligent, notwithstanding that they had been found guilty by the stewards of careless riding charges.
[43]Op cit
[44]Op cit
51Defence counsel then submits that it is not sufficient for the VWA to simply point to Rule’s conviction for careless riding in order to discharge its burden of proof on breach of duty. In that regard, this Court, unlike the Stewards Enquiry, has had the benefit of expert evidence supporting the defendant’s own evidence.
52Further, he submits, it is not sufficient for the VWA to show that Rule made “the wrong choice”. In this regard, perhaps unlike a steward’s consideration of whether there was a breach of AR137(a), the law of negligence recognises the distinction between “an error of judgement” and “a failure to take reasonable care”: Woods v Multi-Sport Holdings Pty Ltd.[45]
[45](2002) 208 CLR 460 at paragraph [16] per Gleeson CJ
53As Diplock LJ observed in Wooldridge v Sumner:[46]
“If, therefore, in the course of the game or competition, at a moment when he really has not time to think, a participant by mistake takes a wrong measure, he is not, in my view, to be held guilty of any negligence.”
[46][1963] 2 QB 43 at paragraph [68]
54Counsel further relies on the comments of McMeekin J in Appo v Stanley:[47]
[47]Op cit
“[39]Jockeys, like all of us, owe a duty of care to those around them. In the course of a race they are required to take reasonable care to avoid creating a foreseeable risk of injury to other riders. It is necessary, of course, to bring into account that they are engaged in a sport, that that sport has inherent risks, and that they are obliged to use their best endeavours to win.
[40] What the defendants were required to avoid doing in the circumstances here was ‘unreasonably exposing [Appo] to some additional risk, that is to say, a risk to which his participation in the sport could not be said, necessarily or ordinarily, to expose a participant’ per Taylor J in Rootes v Shelton. As Gleeson CJ observed in Agar v Hyde, citing Rootes v Shelton: ‘Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity.’
[41] It is difficult to improve on the summary of the competing considerations set out by Chesterman J (as his Honour then was) in Kliese v Pelling that the parties have referred me to:
‘[T]he court ought not to be too delicate in its assessment of the defendant’s conduct which is said to have been negligent. 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. It is, no doubt, for these reasons that claims for damages arising out of horse races have been rare and are likely to remain so. But where evidence reveals that a rider has failed to take reasonable care which could and therefore should have been taken, the court is required by law to make a finding of negligence.’
[42] Only one additional rule or guiding principle of racing was said to be relevant in this case. Australian Rule of Racing 136(1) provides: ‘If a horse… crosses another horse so as to interfere with that, or any other horse… such horse… may be disqualified for the race.’
...
[44] Of course breach of the rules of racing, or of any such safety rule, is not the same as breaching the duty of care owed in all the circumstances. To put the case in a more familiar context, sometimes it is perfectly reasonable to drive on the wrong side of the road. So much is clear from the judgments in Rootes v Shelton, for example that of Barwick CJ where he said:
‘By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connexion, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.’
...
[48] I bear in mind too the evidence concerning the ability of jockeys to control a horse. A jockey’s capacity to ensure that his horse runs straight is limited. Horses can engage in unexpected manoeuvres. Mr Stanley gave some examples as a horse ‘having trouble in the ground, change of stride, hanging out … runs away from another horse’. Wet conditions adversely affect the jockeys’ ability to control their mounts. Ordinarily of course it is plain that a professional jockey can and does control his mount. As McGill QC DCJ observed in Flanders v Small, it would be difficult to conduct horse racing if that was not so.”
55Counsel further cites the decision of Fagan J in Singh v Lynch:[48]
[48]Op cit
“[89]The matter in issue is whether the defendant failed to exercise reasonable care to avert the risk that his horse might interfere with the safe running of another horse and might cause that horse to fall and injure its rider. There are many statements in the authorities to the effect that in any vigorous competitive pursuit what is required of a participant by way of reasonable care towards other participants must take into account the intensity of the activity and make allowance for errors of judgment under the pressure of competition.
[90] In Smolden v Whittworth (sic) (1997) ELR 249 the Court of Appeal of England and Wales considered a claim by a rugby player against the referee and an opposing player for damages caused by the collapse of the scrum. The Court said (at p 256):
The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one. It will not be easily crossed.
[91] Some relevant features of the intensity of horse racing have been adverted to at [79] above. Chesterman J’s description in Kliese v Pelling [1998] QSC 112 sums up a number of characteristics of the sport that are relevant to the content of a jockey’s duty of care owed to other riders, as follows:
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. It is, no doubt, for these reasons that claims for damages arising out of horse races have been rare and are likely to remain so.
[92] Caldwell v McGuire [2001] EWCA 1054 concerned a claim by a jockey who was injured in a hurdle race and alleged negligence against two other riders in the race. Tuckey LJ (with whom the other members of the Court agreed) quoted the above passage from Kliese v Pelling and said:
In such circumstances it is not possible to characterise momentary carelessness as negligence. That was the position here. This incident occurred in the last part of a close race. The respondents should […] have checked to see that the line they were taking was safe. […] I do not think that their failure to do so can be characterised as anything more than an error of judgment, an oversight or lapse which any participant might be guilty of in the context of a race of this kind. It was the sort of incident which happens quite often. […] The Jockey Club’s rules and its findings are of course relevant matters to be taken into account, but, as the authorities make clear, the finding that the respondents were guilty of careless riding is not determinative of negligence.”
56Having summarised the various authorities cited above, counsel then submitted that the following summary of the applicable propositions is apt:
“In summary, the defendant distils and relies upon the following propositions derived from the authorities and passages set out above.
(a) A highly relevant circumstance is that the defendant and the injured jockey are engaged in horse racing, a sport:
(i)that has inherent risks, and
(ii)in which they are obliged to use their best endeavours to win.
(b) In particular:
(i)Horse racing is a competitive business which is played for high stakes.
(ii)The Rules and common sense oblige a jockey to take all reasonable and permissible measures throughout a race to ensure his horse is given full opportunity to win or obtain the best possible place in the field.
(iii)The participants are large animals ridden by small men at high speed in close proximity.
(iv)The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are exercised in race conditions and are limited.
(c) Reasonableness and breach are, of course, to be assessed:
(i)prospectively, without the benefit of hindsight; and
(ii)allowing for the consequences of applying a like standard in other situations.
(d) In determining what is required to give effect to the duty of care and assessing whether breach is established, a court should bear in mind evidence concerning:
(i)the limitations on a jockey’s control of a horse so as to ensure it runs straight;
(ii)that horses can engage in unexpected manoeuvres (here, in particular, shying for example from other horses, the whip of another jockey and objects such as the winning post);
(iii)the duty is relevantly confined to a duty to avoid unreasonably exposing another jockey to additional risk which his participation in the sport could not be said, necessarily or ordinarily, to expose him to.
(e) The Court ought not to be too delicate in its assessment of the defendant’s conduct which is said to have been negligent:
(i)Full account must be taken of the factual context in which the conduct occurs.
(ii)Allowance must be made for errors of judgment under the pressure of competition.
(iii)The threshold of liability is a high one. It will not be easily crossed.
(iv)Liability is not established for errors of judgment, oversights or lapses of which any jockey might be guilty in the context of a fast-moving and vigorous contest.
(f) The Rules of Racing are a relevant circumstance, but are far from determinative.”[49]
[49]See Defendant’s Outline of Submissions, 30 April 2020, paragraph [26]
57Counsel for the plaintiff addressed the positive defences raised in paragraphs 12 to 19 of the Amended Defence which have their origin in s48 to s59 of the Wrongs Act. In particular, counsel submits:
“Section 48 provides that the general principles of negligence do not apply to a person who fails to take precautions against a risk of harm unless:
(a) the risk was foreseeable. That is, it is a risk of which the person knew or ought to have known; and
(b) the risk was not insufficient; and
(c) in the circumstances a reasonable person in the person’s position would have taken those precautions.
In determining whether a reasonable person should have taken precautions against a risk of harm, Section 48(2) requires the Court to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.”
58Thus, Senior Counsel for the plaintiff submitted:
“In the context of the Wrongs Act, when knowing that his horse was shifting out, Rule failed to stop riding and correct and straighten his mount (the necessary precautions) so as to avoid against the foreseeable risk of injury to the worker Gundogdu. The risk being that if he did not straighten and correct his mount and continued on riding with the whip and permitted Preemptive to take the racing line of She’s A Pluck, a fall would occur. It was foreseeable on Rule’s part that if Rule had shifted into She’s A Pluck’s line in the straight, there would be a clipping of heels between Gundogdu’s and Rule’s mounts which would potentially cause She’s A Pluck to fall and harm Gundogdu.”
59Counsel then submitted:
“This risk was:
(a) foreseeable;
(b) significant; and
(c) a reasonable jockey riding pursuant to the Australian Rules of Racing would have taken the appropriate precautions.
Having regard to s.48(2) the probability of harm occurring if precaution was not taken was high. It was likely in the event of harm occurring that it would be serious in the circumstances of horse racing. The burden of taking precautions was clearly on Rule as a professional jockey. The rules of racing under which he was permitted to ride mandated that he avoid risk of harm, by careless riding with safety being paramount. Horse racing in terms of social utility is an activity condoned by government and the public generally.
Further the burden on Rule other than potentially losing a percentage of prize money to take the necessary precautions which were open to him to avoid the risk of harm, was minimal (ie stop riding his mount forward under the whip, place both hands on the reigns and straighten his mount) and could have been easily achieved.
In its determination of the positive defences, the Court should start with the determination of the factual causation issue (s.51). The Court should find that Rule’s riding in the circumstances of this case was below the standard of care of a reasonable professional jockey and his riding failed to avoid a foreseeable risk of injury and was accordingly negligent and ‘a cause’ of harm to Gundogdu.
Save for any fact relevant to the causation issue Rule carries the onus on all issues that it raises within the ambit of Part X of the Wrongs Act. The burden of proof is upon Rule on a finding of negligence to establish that the responsibility for Gundogdu’s harm should not be imposed on him.
The risks set out in paragraphs 12(a) to (d) of the Amended Defence are simply assertions of common sense matters which relate to risks arising in horse racing. S.53(5) of the Wrongs Act excludes from the category of obvious risk any risk created because of a failure on the part of a person to properly operate, maintain, replace, etc … the thing.”[50]
[50]See Outline of Plaintiff’s Submissions, 30 April 2020, paragraphs [57]-[62]
60Specifically with respect to the New South Wales authorities, particularly Singh v Lynch,[51] the legislation contains provisions addressing harm arising from obvious risks in respect of “recreational activity” and “dangerous recreational activity”.[52] No such equivalent legislative provision exists in Victoria, and, as such, it is submitted, these New South Wales decisions are of little or no assistance to the Court other than those findings where horse riding was held to be a “sporting recreational activity” which is of some relevance to the Wrongs Act.
[51]Op cit
[52]Civil Liability Act 2002 (NSW), sections 5K, 5L
61In particular, the Wrongs Act includes s53(5), which is not included in the New South Wales provisions. The Victorian provision provides:
“To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.”
62The plaintiff’s counsel submits:
“ This section has wide ambit. In the context of a Victorian jockey suing another jockey for negligence it is arguable that this section applies to a jockey who fails to properly operate (ride) his horse. With the application of s.53(5) in this case, careless and negligent riding (here, by Rule) is to be excluded from being an obvious risk within the meaning of the Wrongs Act.”
Volenti
63In paragraph 14 of the Amended Defence the defendant pleads that the worker fairly and voluntarily participated in the race with full knowledge of the nature and extent of the risks and thereby impliedly agreed to such risks and voluntarily accepted the risk of injury.
64Counsel for the plaintiff submits:
“As a matter of general principle, a plaintiff is not entitled to damages if a defendant proves that the plaintiff:
(a) perceived the existence of the relevant danger;
(b) fully appreciated it; and
(c) freely and voluntarily agreed to accept the risk.
This means that the defendant must prove the plaintiff’s actual knowledge and full appreciation of the risk, and free and voluntary acceptance of it.
As pointed out by McClelland CJ at CL in Carey v Lake Macquarie City Council:
‘To assume a risk, a plaintiff must know about the risk, he or she must turn their mind to it at the relevant time, and he or she must persist in the risky conduct regardless.’
Although the plaintiff accepts as a matter of common sense that the worker Gundogdu was aware of risks arising in race riding, it does not accept as a matter of fact that Gundogdu was aware of the specific risk that materialised in this case, namely that Rule would negligently ride his mount throughout the length of the straight and fail to correct as required by the Australian rules of racing and in doing so would ride carelessly in breach of AR137a. Although the proposition that Gundogdu voluntarily assumed the risks which came with racing was put to him in general terms, it was never squarely and fairly put to Gundogdu in cross-examination that he voluntarily accepted the risk of sustaining injury by riding in a race where another jockey would ride carelessly and breach the rules of racing so as to cause him injury. Nor more specifically could it have been foreseeable, let alone voluntarily accepted by Gundogdu – that Rule (a jockey with a reasonably good riding record) would nonetheless ride carelessly and negligently in breach of the rules of racing and expose Rule to the risk of a serious career ending injury during Race 3 at Bairnsdale on 13 December 2016 and that Gundogdu appreciated this specific risk immediately before the race and nonetheless continued to participate in the race and then in the race ride his mount next to Rule’s in the straight, thereby exposing himself to the risk of injury. Such a risk in these terms was never put to Gundogdu.
Finally, if the court finds that the Wrongs Act does apply to the circumstances of this case, then by reason of s.54 (2)(b) of the Wrongs Act the defence of voluntary assumption of risk does not apply to the present case as Gundogdu and Rule are each deemed to be workers within the meaning of the WIRCA, Bairnsdale Racecourse being their workplace at the time.”
65I accept this submission that Gundogdu was not aware of the “specific risk” as submitted by counsel, and I find on the facts of this case that such a risk was an “additional risk” as set out in paragraph 56(d)(iii) above.
Analysis: Content of duty of care
66The starting point for the Court is not “the determination of the factual causation issue (s51)”,[53] but in fact an assessment of the content of the duty of care, followed by an assessment of whether there was a breach of that duty. It is only at that point that the Court should proceed to assess whether a breach so proven was a cause of the collision, and the loss and damage suffered by Gundogdu.[54]
[53]See Outline of Plaintiff’s Submissions, 30 April 2020, paragraph [60]
[54]See Stusser v City of Melbourne (unreported, VSCA, 16 September 1997) at page 9, lines 12-19 per Ormiston JA
67In assessing the content of the duty of care, I accept defence counsel’s template set out in paragraph 56 above and, in particular, that –
“… 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. … .”[55]
[55]See Kliese v Pelling [1998] QSC 112
68Further, I also accept a jockey may have infringed the Rules of Racing but not necessarily be acting unreasonably in the circumstances.[56]
[56]See Defendant’s Outline of Submissions, 30 April 2020, paragraph [21]
69In that context, comparable cases advanced by both parties could conveniently be divided into two classes. First, actions which were deliberate or premeditated compared to actions which could be considered “spur of the moment”.
70In the first category are cases such as Dodge v Snell.[57] In that case, after the start of the race, jockey, Snell, was “intending to try and get to the rail and intending to cross in front of [the leaders from his wide barrier]”.[58] In electing to cross in front of the leaders when not sufficiently clear to do so, and despite calls from jockeys to his inside, Snell’s decision to “continue on regardless”[59] caused shifting and tightening of room amongst the leaders, which led to the fall. Wood J specifically noted that Snell’s decision to shift inwards was made “very early in the race and there was plenty of time to reach the rail before the first turn in the track”.[60] Thus, there had been a decision made and an election to act in accordance with that decision during the length of the straight before the first turn.
[57][2011] TASSC 19
[58](ibid) at paragraph [42]
[59](ibid) at paragraph [195]
[60](ibid) at paragraph [81]
71Further, in Appo v Stanley,[61] a “deliberate action” by the defendant jockey in squeezing out the plaintiff’s horse was germane to the Court’s decision.
[61]Op cit
72Cases of the second type included Singh v Lynch[62] where the defendant jockey had intentionally “but abruptly” increased the pressure of his mount against the plaintiff’s horse. The abruptness of the action was seen in the context of “the dynamic nature of the race and the speed at which changes took place in the relative positions of the horses and in the pace of each of them”.[63]
[62]Op cit
[63](ibid) at paragraph [93]
73Further, in Caldwell v McGuire,[64] the negligence was characterised as “momentary carelessness” and no liability was determined.
[64]Ibid
74Further in Goode v Angland,[65] Harrison J found, in respect to Goode’s movements:
“I find as a fact that Mr Goode was not able, despite his attempts and without fault on his part, to contain or restrain his mount. That had two consequences. Mr Goode was not able to prevent his horse moving ever closer to the gradually narrowing gap between Mr Clark and Mr Angland and was equally unable to prevent his horse in effect running into the rear legs of Mr Angland’s horse. … .”[66]
[65]Op cit
[66](ibid) at paragraph [126]
75In my view, the actions by Mr Rule fall into the first category. His actions from the top of the straight to the point of collision produced a risk of harm that was foreseeable, in that it was a risk which Rule knew, or ought to have known. (Section 48(1)(a) Wrongs Act).
76Further, the risk was not insignificant, nor was it far-fetched or fanciful. (Section 48(1)(b) Wrongs Act).
77Both of these elements have been conceded by defence counsel.
78The question therefore remains, as postulated by defence counsel, whether a reasonable jockey in Rule’s position would have taken precautions to reduce or minimise a risk by correcting his mount’s lateral movement from the top of the straight, or at least, disavowing the use of the whip in the last 100 metres of the race and used both hands to straighten his mount.
79I find, on the facts of this case:
(a) From the top of the straight, until collision, a distance of some 200 metres, Rule’s mount gradually moved towards the centre of the track, some three to three-and-a-half horse widths;
(b) In so doing, it was known, or ought to have been known by Rule, that a risk of harm, that was not insignificant, was caused to horses seeking to legitimately use that three to three-and-a-half horse width to attempt to pass Rule without interference, including but not limited to She’s a Pluck;
(c) The said risk of harm was “an additional risk” which was relevant to the content of the duty of care, and was a risk not voluntarily accepted by Gundogdu;
(d) A reasonable jockey should therefore have taken precautions to stop riding his mount, to use both hands to “straighten” the horse so as to minimise, if not eliminate, the risk;
(e) I do not accept that in electing to so act, Rule acted in a manner that was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice in the circumstances. In this regard, I prefer the evidence of Schreck to Burnett;
(f) Insofar as Rule’s mount “wanted to lay out” and Rule may have pulled the left reign to force the horse’s head to the left, such an action was not successful at any relevant time prior to collision and, accordingly, called for the remedial action contained in (c) above;
(g) In terms of s48(2)(a) to (d) of the Wrongs Act, it is impossible to numerically calculate the probability of harm occurring, other than to state the fact that the risk of harm materialised, is not in the least surprising;
(h) The likely seriousness of the harm is obviously great, both from the point of view of physics and human experience;
(i) The burden of taking the precautions may involve failing to win the race, but it is common ground that safety for the jockey (and probably for the horses) takes precedence over the need to win;
(j) The social utility of horseracing is part of the Australian culture and carries with it rich rewards and obvious competitive risks;
(k) Rules have therefore been fashioned to reduce the risk of harm to participants, with potentially heavy sanctions;
(l) The decision set out in (c) above was not spur of the moment but was part of a calculated decision over the length of the straight;
(m) Accordingly, Rule was in breach of his duty of care to the class of jockeys which included, but not limited to, Gundogdu.
Causation
80Section 51 of the Wrongs Act provides:
“(1)A determination that negligence caused particular harm comprises the following elements—
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
… .”
81It was submitted by defence counsel that in addition to the “gradual drifting” of Preemptive from the top of the straight, there was a change in the two seconds before the fall, She’s a Pluck –
“… diverged abruptly in behind Preemptive. At about the same time, or a moment later, Preemptive diverged no more than about a half a horse width out, possibly shying at the winning post or in response to the sudden movement of She’s a Pluck. … .”[67]
[67]See Defendant’s Outline of Submissions, 30 April 2020, paragraph [3]
82The abrupt divergence of Preemptive, according to defence counsel, was –
“… probably not a cause of the fall, which was, it seems, by reason of She’s a Pluck’s abrupt movement in, already inevitable. She’s a Pluck fell in onto Preemptive’s heels. The abrupt movement of She’s a Pluck (or possibly She’s a Pluck and Preemptive) was or were the common sense ‘March v Stramare[68] cause(s)’ of the accident.”[69]
[68]March v EM and H Stramare Pty Ltd (1991) 171 CLR 506
[69]See Defendant’s Outline of Submissions, 30 April 2020, paragraph [3]
83In so submitting, the putative inevitability of the collision by reasons of She’s a Pluck’s abrupt movement was brought about by the fact, in my view, that the space to which she was entitled had been negligently compromised by Preemptive. Whether She’s a Pluck shied at the approach of Capanello or possibly shied at Rose’s whip, or whether she simply tired and wobbled, were all possible causes of the collision. Neither counsel has suggested that any other cause of the collision other than that of the actions of Rule, sounded in negligence. In my view, Rule’s decision not to stop riding and straighten his mount was a necessary cause, and probably the initiating cause of the collision. I also consider that it was a commonsense “March v Stramare” cause of the accident.
84Insofar as the risks set out in paragraph 12 of the Amended Defence can amount to be “obvious risks” pursuant to s53 of the Wrongs Act, and insofar as it could be said that Gundogdu accepted those risks as “obvious” on the facts of this case, I find that the “additional risk” so defined above was not an obvious risk.
85I also find that reasonable precautions pursuant to s48(1)(c) of the Wrongs Act required Rule to stop riding and use both hands to attempt to correct his mount’s drift prior to the collision.
86I also find, pursuant to s51(1)(b) of the Wrongs Act, that it is appropriate to extend the scope of the liability of Rule to the injury suffered.
87If the Wrongs Act sections do not apply, the same reasoning would amount to liability being established under the principles of Wyong Shire Council v Shirt.[70]
[70]Op cit
Was Rule a “third party”?
88By paragraphs 20 and 21 of the Amended Defence, it is pleaded that Rule was not a “third party” in accordance with s369 of the WIRCA. It is submitted that because he has direct recourse to “the benefits of” the policy under which the payments are made and because the burden of payment of the insurance is met from premiums to which Rule has contributed, it cannot be intended by Parliament that he is a “third party”.
89Accepting this argument at face value, it appears that the statutory policy under the WIRC is one which endures to indemnify an employer or a deemed employer.[71]
[71]See s435(a) and (b) of the WIRC
90It appears to me that even accepting Rule is required to pay some of the premiums pursuant to the policy, this does not make him an “employer” pursuant to the section. The defendant concedes that if the WorkCover contract of insurance were a commercial policy, devoid of its statutory contents, it would not literally be a party to it. The contract would be between an employer (Racing Victoria) and the VWA.
91In my view, a similar position would pertain to a “host employer” who would still be a “third party” to the contract, because it was not “a party to the compensation which was claimed and paid or for whom that payment is or may be payable”.[72]
[72]See DSG Pty Ltd v Victorian WorkCover Authority [2008] VSCA 42 at paragraph [87]
92Rule would be able to recover statutory benefits under the same policy if he had been injured but he does not enjoy indemnity under the policy for his own putative negligence.
93In all the circumstances, the defendant’s argument that Rule is not a third party should be rejected and there should be judgment for the plaintiff.
94I will hear the parties as to consequential orders.
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