VWA v Racing Victoria Limited
[2018] VCC 124
•23 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-01524
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| RACING VICTORIA LIMITED | Defendant |
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JUDGE: | DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21, 22 & 23 November 2017 | |
DATE OF JUDGMENT: | 23 February 2018 | |
CASE MAY BE CITED AS: | VWA v Racing Victoria Limited | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 124 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation
Catchwords: Recovery action; Jockey injured in thoroughbred trial; breach of duty; causation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.J. Hayes | IDP Lawyers |
| For the Defendant | Mr D. Wallis | Wotton Kearney |
HIS HONOUR:
Introduction
1 On 20 October 2014 an apprentice jockey, Christopher Caserta, was injured while competing in an official thoroughbred racing trial at the Cranbourne Racecourse south of Melbourne. Mr Caserta was employed by Jason Petch Racing at the time of his injury. The injury occurred in circumstances where compensation was payable under the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).
2 At the time of Mr Caserta’s injury official trials were being conducted under the auspices of the defendant, Racing Victoria Limited.
3 The thoroughbred trial in which Mr Caserta was riding was being conducted on a portion of the race course which had been separated from the permanent true rail position by a series of plastic bollards, which were referred to during the hearing as “paddle markers”.[1] Mr Caserta was riding a horse called Neat Feat which he had previously ridden with some success in a race meeting at Geelong, and had also ridden in track work.
[1]Exhibit B
4 A DVD recording of the particular trial was tendered in evidence and there was no dispute between the parties as to the manner in which Mr Caserta was injured.[2]
[2]Exhibit A
5 In summary, as the horse approached the 300 metre mark of the trial, with Mr Caserta attempting to increase the horse’s tempo, it ducked to the left, stumbled over the paddle markers and dislodged Mr Caserta who suffered a fractured leg.
6 The only issue for determination by the court was the question of liability which fell to be determined in accordance with the provisions of section 369 of the WIRC Act.
7 The parties had agreed, for the purposes of the application of section 369, that Factor A was to be the sum of $250,000. The only issue to be determined by the court was confined to Factor X, which is defined as:
“… the extent, expressed as a percentage, whereby the third party’s act, default or negligence caused or contributed to the injury or death.”[3]
[3]Section 369(3)(b) Workplace Injury Rehabilitation Compensation Act 2013
8 Mr Hayes, who appeared on behalf of the plaintiff, opened the case on the basis that a liability was established against the defendant for allowing the trial to be conducted in circumstances where the inside boundary of the track was delineated by paddle markers, rather than to conduct the trial on the true rail position. As an alternative, the existing rail was in fact moveable and could have been moved out in order to preserve the state of the track. Finally, the use of witches hats rather than tall fixed bollards should have been used.
9 Mr Wallis, who appeared on behalf of the defendant, indicated that his client would not allege fault on the part of the jockey, and otherwise relied upon the defence which had been filed in the proceeding, which denied liability on behalf of Racing Victoria Limited and raised as an alternative allegations of contributory negligence against the employer. Ultimately the case was conducted by the defendant largely on the basis that the plaintiff could not establish liability against the defendant.
The evidence
10 The plaintiff called evidence from the following witnesses;
· Christopher Caserta, the apprentice jockey and “worker”;
· Desmond O’Keefe, the chairman of the Australian Jockeys Association;
· Kevin Ring, the Work Health and Safety Officer employed by the Australian Jockeys Association. Mr Ring was called to give expert evidence on behalf of the plaintiff.
11 The plaintiff also tendered into evidence a number of exhibits including a DVD of the trial in which Mr Caserta was injured. Reference will be made to that and other exhibits when analysing the evidence in the case.
12 The defendant also called a number of witness:
· Roderick De Bomford, Risk Manager at Racing Victoria;
· Simon Hodgson, Tracks and Facilities Manager at the Cranbourne Turf Club;
· Jamie McGuinness, the Executive General Manager of Infrastructure and Club Support with Racing Victoria; and
· William Burnett, a former jockey and current member of the Tasmanian Racing Appeals Board. Mr Burnett was called to give expert evidence on behalf of the defendant.
13 Mr Caserta was given an opportunity to view the DVD of the trial in which he was injured whilst giving evidence before me. He was a second year apprentice in October 2014 and gave evidence that he had ridden in about 300 to 400 races with approximately 20 wins at that time. He had also ridden in more than 200 or 300 barrier trials without incident. He had also previously ridden the horse Neat Feat on two occasions for a second place and a win:
“I first encountered the horse Neat Feat trained by John McAardle at Geelong Synthetic where I rode him in my first ever race for – on that horse, we finished second. And then after – after that race I then raced – rode him again two weeks later, I do believe on the Geelong Synthetic again, where we won. He had then gone out for a spell and I was then asked by John to jump on him in a barrier trial on 20 October to undergo his preparation that – in that prep.”[4]
[4]T 18, L 18-26
14 Mr Caserta explained that riding a horse for a trainer other than his employer was not uncommon for an apprentice jockey. He stated that he had ridden Neat Feat twice in races, two or three times in track work and in the barrier trial at the time of the incident in October.[5] He also gave evidence that the particular trial on the day was trial number 9. He had ridden in three other trials earlier on that day and believed the bollards were placed towards the middle of the track after the fourth or fifth trial. The first four or five trials were usually for the two year olds:
“Yes, the babies, yeah.
You might have five two year olds. And then you go to the other horses coming back from a spell?---Yes, correct, Your Honour.”[6]
[5]T 20, L 15-18
[6]T 21, L 13-22
15 There was no suggestion by Mr Caserta that Neat Feat had been a difficult horse to ride, or was in any way behaving fractiously prior to the incident in which he was injured. His evidence established that the horse was:
“… travelling fine and it was still well-balanced coming around the turn,
… just nice and steady before asking it to increase (pace)
When I was straightened up, a little bit after the 400, so about the 300 metre mark.”[7]
[7]T 23, L 19-27
16 Mr Caserta was riding Neat Feat an estimated six to ten metres out from the bollards marking the inside edge of the track. He had positioned the horse there as he described that it was “better going” on the ground at that point on the track. He gave the horse what he described as “a little slap down the shoulder with my stick, with my whip,” when the horse veered off course towards the line of bollards and towards the inside rail. He agreed that this was near the 250 metre mark. He agreed that the DVD recording showed his right hand attempting to straighten the horse, but at about the 200 metre mark the horse was very close to the bollard and Mr Caserta stated:
“At this point the horse was unbalanced, and I had no control of him. … As you can see from where my hand is, I was trying to straighten that horse by pulling him over to – to where I had him in the beginning of the straight.”[8]
[8]T 25, L 19-28
17 Mr Caserta was shown more of the DVD recording and agreed that as the horse passed on the rail side of two or three bollards he was dislodged and fell to the ground fracturing his left leg. He stated that once the horse had crossed over to the inside of the bollards immediately prior to falling, he was still trying to correct his mount and balance the horse. He stated that he was trying to correct the horse so it didn’t go on to the other side of the bollards and get disqualified. He was also trying to straighten the horse so that he wouldn’t stumble, as eventually happened when Mr Caserta was dislodged. He explained that the horse actually stumbled over one of the bollards, although the bollard made no contact with him, “just the horse.”[9]
[9]T 28, L 7-20
18 Mr Hayes tendered the DVD recording of the trial after it had been viewed and commented upon by Mr Caserta.[10]
[10]Exhibit A
19 There was only very brief cross-examination of Mr Caserta which confirmed that his belief was that the horse started veering to the left after reacting to something to its right. From that point on Mr Caserta was concentrating on trying to straighten his mount to make sure it was still balanced and he had control of the horse. He agreed that from that time on it was impossible to control.[11]
[11]T 30, L 11-24
20 The next witness called by the plaintiff was Mr Desmond O’Keefe, who is the current chairman of the Australian Jockeys Association, and was formerly the Chief Executive Officer of the Victorian Jockeys Association for over 10 years.
21 Mr O’Keefe was familiar with the incident involving Mr Caserta in October 2014, but was not present at the barrier trials conducted at Cranbourne on that day. He was aware of the use of paddle markers to “ease the wear-and-tear on the surface.”[12]
[12]T 38, L 16 to T 39, L 1
22 Mr O’Keefe gave evidence of his knowledge of other incidents involving paddle markers:
“My recollection is there’d been an incident involving a jockey at the Sydney barrier trials. A jockey, Blake Shinn. There’d also been an incident involving a jockey, Daniel Schmitt, at the Balnarring trials.”[13]
[13]T 42, L 24-30
23 He explained that Racing Victoria had a jockey welfare officer who had notified him of any injury sustained to any of his members, which was the manner in which he was usually informed. He also believed he was informed by two jockeys on the day Mr Caserta had suffered the injury.
24 Mr O’Keefe identified a document on Racing Victoria’s letterhead entitled “Jumps Paddles Review March 2015.”[14] This was in effect a risk assessment which concluded:
“It is not clear that either witches hats or paddle markers are preferred in regards to the use in jumps racing. Given the requirement to have a guide as such for the course of a jumps race and the finding that no clear difference in options is discovered it is considered appropriate to continue with the use of paddle markers.”[15]
[14]Exhibit 1
[15]Exhibit 1
25 Mr O’Keefe’s evidence continued stating that it was his belief that the incidents involving Blake Shinn and Daniel Schmitt had both occurred prior to Mr Caserta’s incident. He gave evidence of contacting a Mr Bloodworth at Racing Victoria:
“Questioning the appropriateness and safety of these paddles that are being used. There have been several recent incidents and we would like to go back to the use of a running rail.”[16]
[16]T 49, L 15-22
26 He was uncertain as to the timing, but he believed the discussions took place over about a year, and probably commenced prior to Mr Caserta’s incident. He also corrected his evidence by stating that the discussions were probably between him and Mr Jamie McGuinness, who was the infrastructure and facilities management representative at Racing Victoria.
27 Following Mr Caserta’s incident he informed Mr McGuinness that they would not be using the paddle markers in any flat trials. They have continued to be used in jumping races and trials.[17]
[17]T 51, L 24 to T 52, L 12
28 Mr O’Keefe gave evidence that paddle markers had been used in New South Wales but he was not aware of the situation in other states.[18]
[18]T 52, L 27-31
29 One of the arguments raised by Mr O’Keefe concerning the paddle markers was that they were no longer being used in New South Wales. This was before Mr Caserta’s incident.[19]
[19]T 53, L 1-14
30 Mr O’Keefe gave evidence that plastic rails and break-away uprights were used at 99 per cent of Victorian racing meetings, but there were still a small number of race courses using steel and aluminium. He then produced emails between himself and Mr Michael Shea, a business analyst in strategic planning at Racing Victoria. These emails were dated in late June 2011 and concerned the use of markers as an alternative to aluminium rails in racing.
31 It is appropriate to set out part of Exhibit C, being Mr O’Keefe’s response dated 29 June 2011.
“Hi Michael,
At our Directors meeting last week we again discussed the issue of RACING around markers.
It is the unanimous position of the VJA that RACING around markers presents more potential risk for both horse and rider than it eliminates.
Recently in New South Wales and Tasmania there has been evidence of the markers not being an appropriate form of guidance in races and on one occasion even for trials.
Racing NSW Chairman of Stewards, Mr Ray Murrihy and Tasmanian Jockeys Association EO Mr Kevin Ring are both clearly against markers being used for race day.
We would prefer to explore other alternatives.”[20]
[20]Exhibit C
32 Mr O’Keefe was then taken to a series of emails between September and October 2014 concerning principally the use of marker pegs at the Cranbourne trials for two year olds. These emails were tendered in evidence as Exhibit D. Mr O’Keefe explained it was basically a compromise position to accept that marker pegs would not be used for two year old trials:
“… certainly not for two year old trials early in the season. … we believe it’s not best practice to be trialling new season two year olds around markers so it is our request is(sic) that the Stewards of Racecourse Managers agree that two year olds trial against the rail.”[21]
[21]Exhibit D
33 Mr O’Keefe qualified what had been stated in the exhibit as follows:
“So our compromise was that we insist that two year olds are up against the rail, and the compromise position would be, reluctantly, that the rest of the trials continue around the paddles, that’s the context of that email trail, Your Honour.”[22]
[22]T 56, L 15 to T 57, L 1
34 Mr O’Keefe was then asked about witches hats and stated:
“Witches hats were and are still being used in unofficial jump outs, not official trials, but unofficial jump outs and at some track work scenarios.”[23]
[23]T 59, L 17-24
35 A witches hat, agreed to measure approximately 400 millimetres in height was tendered in evidence.[24]
[24]Exhibit E
36 Mr O’Keefe was cross-examined and agreed that the email chain tendered as Exhibit D showed that the principal concern with the use of paddle markers was with “adding unnecessary risk to the trialling of a field of first time out two year old horses.” He qualified this by saying that the agreement to use paddle markers otherwise was:
“… a somewhat reluctant position. I’ve referred to it earlier as a compromise position.”[25]
[25]T 64, L 6-24
37 Mr O’Keefe agreed in cross-examination that there was a heavy focus on jockey safety involved in his role, but adding:
“… we’re not a militant union. In my 12 years in the position we had one industrial action.”[26]
He went on to say that following Mr Caserta’s accident:
“We were then in a non-negotiable position where we never, ever would have used the paddles or had the riders ride around the paddles. … we tried to get the best outcomes we could for our members, which weren’t always ideal, but they were the best we could achieve working in a reasonably harmonious manner with Racing Victoria.”[27]
[26]T 65, L 8-19
[27]T 65, L 25 to T 66, L 2
38 Mr O’Keefe agreed that he knew Mr Kevin Ring who had prepared an expert report in this matter. He agreed that it was a fair description to say that he was Mr Ring’s boss, as Mr Ring reported directly to the Chief Executive Officer of the Australian Jockeys Association. Mr O’Keefe also agreed that he had wanted paddle markers banned completely, but came to an agreed position as set out in the emails contained in Exhibit D.
39 When re-examined Mr O’Keefe agreed that the Victorian Jockeys Association had no control over the use of paddle markers at Cranbourne or other Victorian racecourses.[28]
[28]T 70, L 19-27
40 The plaintiff then called evidence from Mr Kevin Ring, who is the Work Health and Safety Officer of the Australian Jockeys Association. Mr Ring had commenced as an apprentice jockey in 1975 and continued to ride for nearly 30 years in Queensland, New South Wales, Victoria and Tasmania. He had additionally worked as an assistant trainer and a stable foreman, and ridden some 600 winners over the course of his career. He had also completed a Worksafe Victoria Certificate IV in occupational health and safety. Mr Ring had viewed the DVD recording of the trial prior to giving evidence.
41 Mr Ring described what he had seen of the trial as follows:
“… as they straighten for home the – the horse in question, Neat Fast(sic), was going straight. He’d had one slap on the shoulder by jockey Caserta, apprentice Caserta at the time. The horse didn’t react to that slap. The horse as I noted appeared to be looking at something, he had his head slightly turned out, and which is probably - not probably, but generally the case when they’re out so wide as well, they tend to want to lay in towards the fence which is the natural thing for most horses to do.
…
So, it’s a natural thing for them to lay out when they’re out that far for a lot of horses, and that horse appeared to be – had its head on the side, and it was either looking at something, looking to get close to the inside fence. From what I can gather the rider did slap it a second time down the shoulder … they weren’t any aggressive slaps, I think he was just trying to keep his mind on the job because the horse appeared to be looking at something. The horse then suddenly veers to the left for no particular reason apart from the fact that I feel he was so far out on the track than with the other horses. He got a bit lost while he was in front and that’s only subjective of course because we don’t know what the horses are thinking but from my knowledge … that horse was actually looking at something and then he suddenly veered away, what he saw.”[29]
Mr Ring continued:
“… the horse has actually panicked when it got on top of the peg, which is a natural thing to do because those pegs actually are designed to lay down but the problem when they lay down, they flip back and they can hit the horse back up, underneath their - their body. … The horse was – leapt in the air, the rider’s been dislodged because he naturally nearly fell. You could see it sideways itself and it’s lost its footing, it’s - all four legs were off the ground at one stage. He looked like he was going to fall but it – a bit of self‑preservation by the horse itself has kept itself up but it’s dislodged the rider.”[30]
[29]T 75, L 29 to T 77, L 10
[30]T 78, L 2-16
42 Mr Ring expressed an opinion that if the marker pegs were not there the horse would not have got as erratic as it did when it came to the pegs. He further stated that if the marker pegs were not being used, the horses would not have been running as wide, they would have been closer to the inside rail. He further stated:
“… if it did go through the plastic rail, it wouldn’t have reacted as bad as it did because it would have gone straight into it, whereas there, it was trying to get around the peg … did the sidestep, it was off balance, it was up in the air, and then it naturally dislodged the rider and the rider through instinct has tried to hold on to the reins and then tried to hold onto the horse and naturally he’s got flung in front of that horse.”[31]
[31]T 79, L 22-30
43 Mr Ring expressed a general dislike of the use of paddle markers in thoroughbred racing stating that he and a number of jockeys and health and safety officers had been opposed to their use. He also made reference to discussions he had had with Mr Ray Murrihy who was the chief steward in New South Wales, together with the then deputy chief steward. These discussions had been in 2012. He expressed an opinion that the use of paddle markers in barrier trials were dangerous, repeating his opinion that the plastic rail could flick up and cause the horse to panic, jump in the air, or even buck.[32]
[32]T 83, L 29 to T 84, L 31
44 He gave further evidence that paddle markers, which had been used in most states but had now been removed completely except in Victoria for jumps trials.
45 Mr Ring suggested moving the plastic rail or substituting the marker pegs for witches hats would be alternatives that could have been used. He was shown Exhibit E, and agreed that that type of witches hat would be suitable. He believed larger witches hats would be too bulky and too high.
46 Mr Ring was also asked to comment on a report prepared by another expert, William Burnett, who later gave evidence for the defendant. Mr Ring disagreed with Mr Burnett’s conclusion stating that he did not believe the horse Mr Caserta was riding had reacted to the whip. He also disagreed with Mr Burnett saying it did not look like the horse had been startled. In response to Mr Burnett’s conclusion that the paddle markers were not the cause of the accident and a solid rail may have led to a more catastrophic result, he commented:
“Well, if the paddle - paddle marker hadn’t – hadn’t have been there, for one, they wouldn’t have been as wide as they were, they would have been racing in a nice bunch, more even bunch … if there’d been a rail there instead of paddle markers, they would’ve been closer to that rail … if there’s been a rail there or even a witch’s hat, the reaction of what the horse did with those pegs when it got to it, to that peg, there wouldn’t have been any reaction like that and even if it did come into contact with the plastic rail, it wouldn’t have veered as much as it did.”[33]
[33]T 89, L 18 to T 90, L 4
47 Mr Ring was cross-examined and agreed that he had had some interaction with Mr O’Keefe, but believes he did not provide him with a copy of his report, but may have discussed the factual circumstances involving Mr Caserta’s fall.
“… my recollection of saying to Des is if the pegs weren’t there, it wouldn’t have been as serious an incident as it occurred.”[34]
[34]T 91, L 20 to T 92, L 1
48 Mr Ring was read a section from the 2014 email chain (Exhibit D), and agreed that the compromise of running two year old trials on the rail and using the paddle markers was something of which he was aware but he had no input into it, and did not believe he commented on it.[35]
[35]T 95, L 8-27
49 When cross-examined about his viewing of the DVD recording he agreed that Neat Feat had shifted its position when startled by something on the outside of the track.[36]
[36]T 97, L 16-25
50 Mr Ring agreed with the proposition that the horse was acting in an aggressive and erratic manner reacting to something on the outside of the track.[37] He went on to state that if there had been a running rail rather than the pegs, Neat Feat would have been trialling closer to the rail:
“The incident wouldn’t have been severe if he did duck, he would’ve ducked a little bit but he wouldn’t have done what he did.”[38]
[37]T 98, L 18-22
[38]T 99, L 28-30
51 Mr Ring conceded that there were a number of reasons why horses might have run on different parts of the track, but maintained his position that if a rail had been on the inside instead of pegs, the horses would have been racing closer to the rail. If that had been the situation he stated:
“It was startled, yes, but if it had been close to a rail, it wouldn’t have had the chance to act in the manner it did. It might’ve – may have ducked in but it would’ve come in contact within a stride or two of a plastic rail and straighten up.”[39]
[39]T 102, L 22-26
52 He further stated that if the horse had run straight into the rail:
“… it wouldn’t have got as tangled up either because it would have just gone straight through a plastic rail, which they do, it wouldn’t have been trying to dodge one peg.”[40]
[40]T 102, L 28-31
53 Mr Ring agreed that there was a possibility of a rider being thrown over a rail as had occurred to him during his racing career. He stated that if that situation had occurred, he would not have come into contact with his own mount which ran over him.[41]
[41]T 103, L 16-27
54 When Mr Ring was asked to comment on the possibilities of broken rails and other eventualities he stated, tellingly in my view:
“… it’s very possible, everything’s possible, especially in racing and especially when you’re dealing with a live animal.”[42]
[42]T 104, L 29-31
55 Mr Ring commented in cross-examination that he regarded plastic rails as being great:
“Fantastic. They straighten the horses up. The horses sight them better because they’re a great height, they’re 1.3 m, more so in Victoria, which is the rail used predominantly in Victoria … and the horses sight it because as I said, that is their line of sight, height of the shoulder, and they respect it. They respect the rail.”[43]
[43]T 109, L 13-19
56 He also commented on the use of the older type of aluminium rails which had caused some serious injuries:
“I’ve seen incidents where riders have lost parts of their leg because of the aluminium rail. Plastic rails are great.”[44]
[44]T 109, L 11-13
57 Mr Ring agreed that he had dealings with Mr Simon Hodgson, the manager of the Cranbourne facility. He also commented that he had dealings with Cranbourne on safety matters for a couple of years:
“… and the culture between the people that ride there … the culture’s better now in the last six months or so, since we had a very in-depth meeting with participants there in the club, and myself, and the VJA, and the culture there was – was pretty poor, as far as consultation between riders and participants there, and the track officials and the track people that work there and managers.”[45]
[45]T 112, L 31 to T 113, L 21
58 There was no re-examination of Mr Ring. Mr Ring’s report dated 10 July 2017 was tendered in evidence on behalf of the plaintiff.[46]
[46]Exhibit G (Plaintiff’s Court Book p49-54)
59 The plaintiff also tendered the initial Workers Injury Claim Form dated 12 December 2014 and the Recoveries Claims Costs Report dated 20 November 2017.[47] Neither of these documents were particularly relevant given the limited issues in dispute between the parties.
[47]Exhibits H & F
60 Mr Wallis, on behalf of the defendant, accepted that his client owed a duty of care to Mr Caserta, but denied any breach of that duty. The defendant challenged the proposition that the use of paddle markers constituted an increased risk of harm to jockeys and further that the risk of harm was such that an alternative to the paddle marker ought to have been adopted. In opening the case Mr Wallis indicated that statistical evidence would be called to show a minimal risk in flat trials conducted at Cranbourne between 2008 and 2014. Further, the defendant would rely upon the fact that the trial being conducted at the date of Mr Caserta’s injury was in accordance with an agreed position reached between the defendant and the Victorian Jockeys Association.
61 In the present case the defendant argued that the paddle markers were not “a necessary condition of the harm in accordance with the words of the Wrongs Act.”[48]
[48]T 119, L 22-30
62 Mr Roderick De Bomford, the risk manager of Racing Victoria since July 2013 was the first witness called by the defendant. Mr De Bomford gave evidence of the consultative process between the defendant, jockeys, trainers, unions and race horse owners. He explained that there was a formalised committee called The Thoroughbred Industry Safety Committee representing the parties described and also chaired by WorkSafe and co-chaired by Racing Victoria.[49]
[49]T 122, L 24 to T 123, L 3
63 When cross-examined Mr De Bomford agreed that there was liaison between Racing Victoria and other statutory controllers of racing throughout Australia. The consultation was related to the rules of racing which may involve occupational health and safety.[50] He qualified this response by indicating that there were matters that were dealt with by the stewards which would not necessarily be brought to his attention. He disagreed with the proposition that information shared between Racing Victoria and Racing New South Wales touching on OH&S matters would be passed on to him.[51]
[50]T 128, L 2-13
[51]T 130, L 2-9
64 Mr De Bomford did agree that notwithstanding the consultative process the decision as to how racing, including trials were conducted, was ultimately a decision of Racing Victoria.[52]
[52]T 132, L 9-22
65 Mr De Bomford agreed that he had become aware of an incident where Blake Shinn was injured in March 2012 at Rosehill, but he had become aware of this subsequent to the Caserta incident.[53] He further gave evidence that he was unaware of an incident involving Daniel Schmitt at Balnarring in March 2012:
“My understanding the Schmitt incident happened at an activity that wasn’t under the control of management and control of Racing Victoria.”[54]
[53]T 134, L 14-21
[54]T 136, L 9-26
66 Mr De Bomford was not aware that paddle markers had been prohibited from being used in New South Wales. He agreed that that would be one of the things he should know in terms of his role involved with safety in Victoria.[55] Mr De Bomford agreed that if he had known of two earlier incidents where jockeys were injured he may have raised that with stewards.[56]
[55]T 138, L 2-12
[56]T 139, L 28 to T 140, L 6
67 He stated that he was not aware of 14 incidents recorded in New South Wales involving horses “jumping, ducking inside or dislodging their rider when marker pegs were involved.”[57]
[57]T 140, L 28 to T 141, L 3
68 He was not aware of a recommendation made by the Chairman of Stewards in New South Wales that the use of marker pegs in official trials be discontinued.[58]
[58]T 141, L 16-20
69 Mr De Bomford was shown the email chain in Exhibit C, and agreed that there was a concern expressed by Mr O’Keefe as to the risk of horse and rider of racing around the paddle markers.[59] Mr De Bomford agreed that when horses were travelling at a flat gallop the risk of racing around paddle markers, whether in a race or a trial, would be the same.[60]
[59]T 146, L 12-19
[60]T 149, L 1-9
70 Although Mr De Bomford agreed that the issue of risk to jockeys was relevant to his role, he believed it was frequently his expectation that the stewards at a meeting would resolve these issues directly.[61]
[61]T 153, L6-20
71 Mr De Bomford agreed that to his knowledge Racing Victoria have never undertaken a risk assessment in respect to the use of paddle markers prior to the Chris Caserta incident.[62]
[62]T 157, L 2-10
72 Mr De Bomford was asked about moving the rail at the Cranbourne track and stated:
“… the reason that that’s not done traditionally is because of the significant effort there is in moving a running rail.
…
… there’s a number of staff that need to be engaged specifically for that activity … And it might take half a day labour.
…
So, it’s not something that could conveniently be done in the middle of a set of trials.”[63]
[63]T 161, L 4-18
73 He agreed that he had previously answered interrogatories stating that it could take approximately two days with a team of six men to adjust the rail. He disagreed with the proposition that only a portion of the rail would need to be moved:
“… my understanding is you do move the whole rail.”[64]
[64]T 164, L 11-23
74 Mr De Bomford was asked to respond to some propositions concerning the financial status of the defendant, which ultimately I regarded as not relevant in determining the issues before me.
75 He agreed that witches hats were used for track gallops, but he was not aware of a policy in relation to their use in trials.[65] He did not agree that the use of witches hats would provide a relatively safer alternative to the use of paddle markers.
[65]T 168, L 8-20
76 Finally Mr De Bomford agreed that following Mr Caserta’s fall, paddle markers had not been used at the Cranbourne track for barrier trials. He did not accept that this was as a result of Racing Victoria accepting any particular risk to riders involving the use of paddle markers.[66]
[66]T 169, L 9 to T 170, L 16
77 When Mr De Bomford was re-examined he gave evidence that the consultative process between Racing Victoria and the Jockeys Association would have been dealt with by the infrastructure committee. He further gave evidence that paddle markers were still used for jumps races, but were not used for flat racing in Victoria. He was asked further questions concerning his interpretation of the matters raised in the emails forming Exhibit D. Ultimately Mr De Bomford’s response to these questions was of little value as he had not been aware of the emails prior to the hearing.
78 He was asked to comment on the potential risk of injury concerning the number of flat trials conducted at Cranbourne. He agreed that the statistics indicate:
“… that the likelihoods of injury is very, very, very low … particularly considering the – the inherent dangers of racing, yeah, I wouldn’t have seen that’s(sic) the paddle markers were a concern.”[67]
[67]T 175, L 12-22
79 Simon Hodgson, the tracks and facilities manager at the Cranbourne Turf Club was the next witness called by the defendant. Mr Hodgson had been in his present position for just over 10 years, and at the club for 24 years. He gave evidence that there were some 700 to 800 thoroughbred horses training at Cranbourne on a daily basis. He described the facility at Cranbourne as, “one of the busiest in the southern hemisphere.” He compared Cranbourne to the other training facilities at Flemington and Caulfield, stating that each of those facilities had 400 to 500 horses training compared to the 700 to 800 at Cranbourne.[68]
[68]T 188, L 23 to T 189, L 1
80 Mr Hodgson describe paddle markers being used at Cranbourne from approximately 2008:
“… obviously we have track markers to share the wear and tear of the ground … we have a lot of trials at Cranbourne, so we put track markers in for those horses to go around to safe(sic) the inside ground.”[69]
[69]T 189, L 17-23
81 Mr Hodgson was asked about moving the existing plastic rail, explaining that it would take “a bit over a day to move about ten metres – with six blokes.”[70]
[70]T 191, L 5-16
82 By using witches hats or paddle markers it could be done in a much lesser time:
“… how long would it take to put the paddle markers in place on average?
---To do a whole circuit of a track, it’d - probably an hour and a half with two people.”[71]
[71]T 192, L 9-12
83 Mr Hodgson stated that between 2008 and 2014 there had been no incidents in relation to paddle markers of which he was made aware. He commented that jockeys would raise track issues with the club and the stewards:
“So we’ve got a pretty good relationship with riders, and they just – you know, they actually come and see us when they’ve got issues all the time.”[72]
[72]T 193, L 4-7
84 Mr Hodgson disagreed totally with the evidence given by Mr Ring concerning a poor culture at Cranbourne.[73]
[73]T 193, L 20 to T 194, L 28
85 Mr Hodgson described the conduct of official trials which would alternate with unofficial trials on a fortnightly basis. There would be a number of heats when official trials were conducted with each heat usually having 10 to 15 horses.[74]
[74]T 195, L 2-30
86 Mr Hodgson explained that trialling around paddle markers had ceased since Mr Caserta’s accident in 2014. He had recently been asked to search data on the number of horses trialling around paddle markers between 2008 and 2014. He estimated that approximately 9,000 horses trialled around the track markers between 2008 and 2014. Approximately 8,000 of these were involved in flat trials and not hurdle trials.[75]
[75]T 198, L 21-26
87 The records produced by Mr Hodgson were then tendered into evidence.[76]
[76]Exhibit 2
88 In cross-examination Mr Hodgson agreed that plastic cones were used in track work and unofficial jump-outs. He agreed that unofficial jump-outs were conducted in the same way as official barrier trials, but the results were not recorded in Racing Victoria’s records.[77]
[77]T 202, L 6-20
89 Mr Hodgson agreed that since 2014 the grass surface of the track had held up well due to the plastic rail being frequently moved from the true position to a variety of other positions.[78] He also agreed with the proposition that prior to October 2014 it was easier to use the paddle markers than to move the rail.
[78]T 203, L 21-31
90 Mr Hodgson agreed that if he had been directed by Racing Victoria stewards to move a rail rather than use paddle markers, he would have done so. He further stated that he believed there were risks involved in anything:
“… we had a lot of horses go around these markers without any incident. I see incidents every day. I don’t think because it hit the marker whether it’s its fault or not but - - -
…
I’ve seen horses go through the plastic running rail at work.”[79]
[79]T 206, L 13-24
91 He accepted as a proposition that the rail was safer than paddle markers, but could not comment on the alternative of witches hats.
92 There was no re-examination of Mr Hodgson.
93 The defendant next called Mr Jamie McGuinness, the executive general manager of infrastructure and club support from Racing Victoria. He had occupied that role since early 2002. He had previously been involved with country racing in Victoria from the late 1990s.
94 Mr McGuinness gave evidence that he was aware of the use of paddle markers at the Cranbourne Turf Club since 2008:
“They were introduced to enable the track to cope better and to spread the wear of the racehorses using the track to allow more use of the track for racehorse training.”[80]
[80]T 209, L 19-22
95 Mr McGuinness gave evidence of consultative processes consistent with earlier evidence in the trial.
96 He also explained the role of Racing Australia as the peak body of racing with the next level down being the principal racing authorities in each state and territory. Below the state and territory authorities were the race clubs operating by what Mr McGuinness described as a sub-licence. He gave examples of differences in the conduct of racing in various states due to this particular hierarchy.[81]
[81]T 212, L 6-24
97 Mr McGuinness gave further examples of where Racing Australia had issued broad guidelines on matters such as the personal protective equipment to be worn by riders.[82]
[82]T 213, L 1 to T 214, L 28
98 Mr McGuinness was shown the email chain in Exhibit D and agreed that:
“The outcome was that the discussion with the Jockeys Association agreed with the position that was proposed in that two year old trials would trial against the rail.”[83]
He added:
“… we reached agreement with the Jockeys Association that we would use the running rail or a running rail for two year old trials and that we would continue to use paddles for non-two year old trials.”[84]
[83]T 216, L 28-31
[84]T 217, L 27-31
99 Mr McGuinness gave further evidence that following Mr Caserta’s incident in 2014 Racing Victoria conducted a review of the incident in regard to the use of paddles. He identified Exhibit 1, Jumps Paddle Review March 2015, and agreed that he was aware of the information reviewed to compile the report. The actual author of the report had since died.
100 Mr McGuinness gave evidence that after Mr Caserta’s accident he had discussions with Mr O’Keefe and ceased using the paddle markers in official trials. He did not recall any discussions about any preferred alternative. From that time the trials were conducted against the plastic running rail.
101 Mr McGuinness gave evidence that there had been discussions in August or September 2017 with Racing Australia about the use of paddle markers. This was in the context of a major project involving a re-write of the rules of racing.
“There is currently a rule of racing, Australian rule of racing, not a local State rule, but an Australian rule of racing that provides allowance for rules in relation to races around markers or paddles. And that rule is AR138.”[85]
[85]T 233, L 25-31
102 He further gave evidence that there was some discussion about the removal of that rule, but at the Racing Australia meeting it was agreed that the rule would stay in place.
103 When Mr McGuinness was cross-examined he agreed that the jockeys preferred plastic rail to paddle markers.[86] Mr McGuinness did not personally agree with the view taken by the jockeys.
[86]T 235, L 2-15
104 He agreed that most horses were trained at training centres which did have a running rail. Mr McGuinness did not hold a trainers licence, nor had he ever trained horses.
105 Mr McGuinness agreed that witches hats were also used in aspects of training. He did accept the proposition that within Australian racing a large majority expressed a preference to race on the rail.[87]
[87]T 237, L 16-24
106 Mr McGuinness agreed that prior to Mr Caserta’s accident there had been no risk assessment or review conducted in relation to the use of the paddle markers.
107 Mr McGuinness was then shown documents that were ultimately not tendered in evidence, apparently recording incidents in New South Wales. Mr McGuinness was not aware that prior to 20 October 2014 there were at least 14 incidents in New South Wales involving marker pegs or paddle markers.[88]
[88]T 246, L 19-31
108 He agreed that Racing Victoria would stay in touch with other principal racing associations, but to the proposition that it would share information relating to occupational health and safety he responded:
“I would say that would be the least area.”[89]
[89]T 247, L 12-22
109 Mr McGuinness was not aware that paddle markers had ceased to be used in New South Wales prior to Mr Caserta’s incident. Had that information been made available he could not comment as to what effect it might have had in Victoria.
110 Mr McGuinness was taken to aspects of the Jumps Paddle Review in March 2015 and was shown the DVD of the trial involving Mr Caserta. Ultimately his comments in relation to these matters were expressed in the absence of any expertise being established. They are therefore of little, if any, probative value.
111 Mr McGuinness gave evidence concerning the difference between unofficial trials (jump-outs) and official trials stating that track riders, as well as licensed jockeys, could ride in the former, and generally there were no requirements for an ambulance to be following the field. He further agreed that unofficial trials could be conducted around witches hats.[90]
[90]T 264, L 3-27
112 Mr McGuinness did not agree with the proposition that there would be a much greater chance of unbalancing the horse and dislodging the rider if it were to strike a paddle marker rather than a witches hat.[91] He did agree with the proposition that if the use of paddles was found to be a cause of the incident involving Mr Caserta, that may involve banning the use of paddles in barrier trials at Cranbourne.[92]
[91]T 266, L 11-16
[92]T 267, L 6-25
113 When re-examined Mr McGuinness gave evidence that the statistics relating to the participation in flat trials were available when the Jumps Panel Review was prepared.[93]
[93]T 269, L 32 to T 270, L 8
114 Finally, Mr McGuinness gave evidence that Mr O’Keefe had spoken to him only about using the plastic rail as an alternative to paddle markers and no discussion was had concerning witches hats.[94]
[94]T 270, 17-24
115 The final witness called by the defendant was William Burnett, who had prepared an expert report dated 10 February 2017.[95] Mr Burnett had extensive experience as a jockey riding in approximately 7,000 races for approximately 550 wins. He also held roles as president and committeeman of the New South Wales Jockey Association and was elected to the Tasmanian Racing Appeals Board in 2014. He had reviewed the DVD footage of the trial in which Mr Caserta was injured prior to completing his report.
[95]Exhibit 3
116 Mr Burnett regarded the horse as having a violent reaction to a slight tap from the jockey:
“… the movement of the horse was violent in the extreme, leaping in the air, before it ever came in contact with – with the bollard. It was leaping in the air and throwing itself sideways. I would – I would describe that, more than erratic, I would describe that as violent action … he wasn’t under control, through no fault of the jockey; he just wasn’t responding to anything the jockey attempted to do.”[96]
[96]T 279, L 7-28
117 Mr Burnett’s evidence continued stating that if the horse had not struck the paddle marker, he believes it would have contacted the inside rail on the track and either gone through it or over it, possibly resulting in more severe injury to the jockey.[97]
[97]T 280, L 25 to T 281, L 24
118 Mr Burnett was asked to comment on aspects of Mr Ring’s evidence. He disagreed with the proposition that if the pegs were not there, there would not have been contact, or much contact, with the inside rail.[98]
[98]T 287, L 1-15
119 He agreed that if the marker pegs were not there the horses would not have been racing as far out from the fence. He also agreed with Mr Ring’s evidence that if the horses had been closer to the inside rail they would have had better guidance, but he did not believe that would have altered the outcome in any way.
120 Mr Burnett did disagree with Mr Ring’s evidence that if the horse had gone through the plastic rail it would not have reacted as badly as it did:
“I believe that the bollard actually prevented a much worse outcome than what occurred by distracting the horse.[99]
[99]T 287, L 28 to T 288, L 20
121 Initially in cross-examination Mr Burnett was again shown the DVD of the Caserta incident. He agreed that the horses were almost out towards the middle of the track, a distance of around nine metres from the rail.[100]
[100]T 290, L 17-28
122 Mr Burnett agreed that the horse appeared to make contact with the first paddle marker, “it made quite a strong impact,” and then either shied away from or around a second paddle marker:
“The horse was totally unbalanced. … So, I can’t say if it shied away or – but it was – the horse was very unbalanced, so I don’t know what its reaction to that paddle was.”[101]
[101]T 292, L 6-18
123 Mr Burnett agreed that the height of the paddle markers was a similar height to running rails, and that a very large majority of horses were trained to run and follow the rail.[102]
[102]T 293, L 16-24
124 Mr Burnett agreed generally with the proposition that horses run:
“… pretty close to the rail …?---Yes, a couple of horses off it, a horse off it, maybe, not – very rarely is a horse absolutely hard up against it.”[103]
[103]T 294, L 28 to T 295, L 4
125 Mr Burnett did not agree with the proposition that something had startled the horse prior to it veering left.[104]
[104]T 296, L 1-3
126 Mr Burnett continued in response to a similar proposition:
“What I’m suggesting to you, is that it – the horse is plainly veering away from something?---Yes, but I don’t think it was anything physical, I think it was a mental issue for the horse.
You know this horse has never been labelled as a problem horse with Racing Victoria Limited?---Correct, which makes it even more surprising.”[105]
[105]T 297, L 23-29
127 Mr Burnett later agreed that he would not expect a horse like Neat Feat to react in the manner in which it did.
128 To the proposition that the horse would have been straightened up by the running rail if it had been trialling closer to it, Mr Burnett commented:
“I don’t think it was thinking rationally enough to assume that, Mr Hayes. The horse was out of control. As I explained earlier when I described my - my experience of horses jumping the fence, both those horses were behaving erratically and the minute they got near the fence, for some reason, when they contacted the fence with their shoulder, they jumped the fence. This horse was moving aggressively, very aggressively.”[106]
[106]T 300, L 10-20
129 Mr Burnett agreed with the proposition that the plastic rails had some degree of give, and many times when horses were racing they would impact the rail and bounce back out again. When pressed on this issue Mr Burnett stated:
“Once again, Mr Hayes, I have to revert back to the very beginning of the shift to the left, was at such a speed, immediately the horse was moving very quickly. If a – even if he was only a couple of horses away from the fence he would generate enough pace, but you also have to take the mindset of the horse into consideration. The horse had no concern for his own safety at all. He was just charging blindly. So, even from a short distance, as I said earlier, I’ve experienced it myself, the horse could easily have gone over the fence. And I believe in his mindset that would have been more likely the outcome.”[107]
[107]T 303, L 27 to T 304, L 7
130 Mr Burnett agreed with the general proposition that the person in the best position to know what the horse was doing was the rider. Mr Burnett also agreed as a general proposition that a distraction may have more impact on a horse travelling near the centre or to the right of the track than one on the left, accepting that the distraction came from its right. Mr Burnett expressed real doubt that the horse had in fact been distracted.[108]
[108]T 305, L 1-18
131 Mr Burnett continued:
“… I don’t believe a horse of his experience would react to a – a noise or a flash of light or something like that, so violently.”[109]
[109]T 306, L 18-28
132 Mr Burnett agreed in cross-examination that he had been out of the industry for ten years and was unaware of the banning of paddle markers in New South Wales, Queensland or Victoria. Mr Burnett also gave evidence that he had considerable familiarity with the use of cones or witches hats, and prior to that time, in the early 1970s with bamboo poles with flags on top.[110]
[110]T 309, L 2-29
133 Finally, in cross-examination Mr Burnett stated that it was the horse’s behaviour rather than the paddle markers which had led to the incident in which Mr Caserta was injured.[111]
[111]T 310, L 5 to T 311, L 22
134 There was no re-examination of Mr Ring.
Analysis
135 The plaintiff’s entitlement to indemnity is governed by the statute. The entitlement arises in circumstances where the plaintiff can establish that the injury for which compensation has been paid:
“(1) …was caused under circumstances creating a liability in a third party
to pay damages in respect of the injury…”[112]
[112]Workplace Injury Rehabilitation and Compensation Act 2013 section 369(1)
136 The liability of the defendant is the sole issue for determination in the present case. The defendant has admitted a duty of care owed to the worker, Christopher Caserta, but denies any breach of the duty.
137 Somewhat unusually, there could be no dispute about the circumstances in which Mr Caserta’s injury occurred, with the court having the benefit of the DVD recording of the actual trial showing him being dislodged from his mount, and suffering a leg fracture. There was also little dispute between the two expert witnesses, Mr Ring and Mr Burnett, to the effect that Mr Caserta’s mount, Neat Feat, had behaved erratically, at the very least, prior to impacting with a paddle marker shortly before dislodging Mr Caserta.
138 Nevertheless there was no clear evidence from Mr Caserta, or from the DVD itself, as to why the horse had suddenly and violently moved from its racing line sharply to its left. In the final analysis I have not found it necessary to reach any conclusion as to precisely why the horse reacted in the way that it did.
139 The strongest evidence advanced by the plaintiff came from Mr O’Keefe. I accept his evidence that he had advocated against the use of paddle markers, at least from 2011. I also accept Mr O’Keefe’s evidence that a compromise position was agreed in September 2014 restricting the use of paddle markers in official trials to horses other than two year olds or “unraced babies.”[113]
[113]Exhibit D
140 It is clear that the conduct of the trials subsequent to that agreement in September 2014 proceeded in line with that agreed position. It is also clear that following the email sent by Mr O’Keefe to Jamie McGuinness and Neil Bainbridge on 27 October 2014,[114] that paddle markers were no longer used in any official trials after that date.
[114]Exhibit D
141 It is significant, in my view, that there was reference made to a stance by Racing New South Wales and its stewards in that email, but no evidence was led in the trial before me as to what the basis of that decision was, or whether it had ever been given consideration by the defendant.
142 Despite reference being made on a number of occasions to earlier incidents, particularly involving Blake Shinn in New South Wales and Daniel Schmitt at Balnarring, there was actually no evidence before me as to the circumstances of either of these incidents, or the manner in which the paddle markers were said to have been causative of or increased the risk of injury to those riders. Similarly there was no evidence put before me either directly from Racing New South Wales or from any documentary material emanating from that body as to the reason why paddle markers were no longer used in that state.
143 It became clear when the issue was pressed with Mr De Bomford, the risk manager of Racing Victoria, that he did not become aware of any of these events until subsequent to Mr Caserta’s incident.
144 There was further evidence from Mr Jamie McGuinness, the infrastructure manager of Racing Victoria, that the Jumps Paddle Review completed in March 2015 had been commissioned following Mr Caserta’s incident. Additionally Mr McGuinness’ evidence that there had been discussions with Racing Australia in August and September 2017, but there had been no change to the current rules of racing, provides strong support for the proposition that there has been consideration of incidents involving paddle markers subsequent to Mr Caserta’s incident with no change made to the national rules of racing.
145 The duty of care owed by the defendant to participants in trials at the Cranbourne racing facility is one of reasonable care. It is not an absolute duty. Additionally there can be no dispute that thoroughbred racing is potentially a hazardous occupation. The risks to race horses and jockeys is ever present, and care must be taken by all participants, including the defendant.
146 Although there is some dispute as between the evidence given by Mr Burnett and the evidence given by Mr Ring as to what the outcome might have been if the trial had been conducted against a plastic running rail rather than paddle markers, I am prepared to accept, as a general proposition, that the use of a plastic running rail with detachable uprights is in all probability less hazardous than the use of paddle markers. It seems to me that the acquiescence of the defendant’s representatives to the compromise position agreed in September 2014 acknowledges that where unraced two year old horses were concerned, it would be preferable to conduct those trials against a true rail rather than a track defined by paddle markers.
147 The evidence in this case however shows that in the period between 2008 and 2014 when Mr Caserta was injured, there were something in the order of 9,000 horses trialling at the Cranbourne facility without a single incident being reported involving track markers. Therefore, whilst in an ideal world the use of a fixed rail as an alternative to paddle markers might be preferred, there is no empirical evidence suggesting that it was anything more than a remote or minimal risk of injury occurring as it did in Mr Caserta’s case.
148 Additionally the preservation of the track surface at the Cranbourne facility was clearly a matter that needed to be given consideration by the racing officials. I am not satisfied in the present case that the running rail could be moved relatively easily during the course of a set of trials. Although this proposition was advanced by Mr Hayes on behalf of the plaintiff, I accept the evidence given by Mr Hodgson that the movement of the rail was one that would involve a number of track workers and occupy a period of at least several hours.
149 The evidence concerning the use of witches hats, such as that tendered in evidence,[115] appears to me to be very much of an after-thought. There is no reference to substituting cones for paddle markers referred to in the email chain forming Exhibit D. Similarly there is no reference made to the use of cones in the earlier email sent by Mr O’Keefe to Mr Michael Shea in June 2011.[116] (I should note that Mr Shea’s response makes reference to the use of markers “as an alternative to the aluminium rail” in that email.) There seemed to be no dispute in the case before me that the earlier type of running rail constructed of aluminium with steel uprights represented a very significant risk of injury and certainly more than the later plastic rail, which was in place at Cranbourne in October 2014.
[115]Exhibit E
[116]Exhibit C
150 An application of the principles set out in Wyong Shire Council v Shirt[117] leads me to the following conclusions:
[117][1980] HCA 12; (1980) 146 CLR 40
i)The risk of Mr Caserta sustaining injury when dislodged from his mount after Neat Feat collided with at least one paddle marker was a foreseeable risk of injury to the defendant. It was a real risk of injury, and not one which could be characterised as fanciful or far-fetched.
ii)The risk of injury was one which could be described fairly as remote in the sense that it was extremely unlikely to occur. I base this conclusion not only on the empirical evidence of the number of horses involved in trials, but also on the fact that Mr Caserta was riding a horse with no known history of erratic or aggressive behaviour, and certainly not riding an unraced two year old which had been given particular consideration in the email chain in Exhibit D.
151 The remaining question in terms of the establishment of any potential liability by the defendant is to examine what a reasonable response would have been to that small but foreseeable risk to Caserta. In my view the compliance with the agreed but compromised position evidenced in Exhibit D would be sufficient. I have found that it would be impractical to physically move the fixed running rail to account for changing track conditions during the course of a series of trial. I am also assisted in coming to that conclusion by noting the review conducted by the defendant which contained the following statement:
“Whilst video review evidence is available which shows the incident occurring, the cause of the incident cannot be determined based on this alone due to conflicting accounts from subject matter industry experts including senior jockeys and Racing Victoria stewards. It should be noted that for the purpose of this review, it is not possible to identify the actual root cause of the incident as the behaviour of the horse cannot be explained through facts and as such the horses behaviour that led to the incident should be regarded as the immediate cause only! Consequently, it is impossible to proportion blame to any of the potential causal factors (i.e. paddle markers, rider ability or the horse’s behaviour).[118]
[118]Exhibit 1
152 The statistical evidence referred to in that review was summarised as follows:
“… over the 6.5 year period (when paddle markers were used) which included 1287 trials, a total of 9355 horses participated in which there is one known incident that associates a horse coming into contact with paddle markers and the riders suffering serious injuries.”[119]
[119]Exhibit 1
153 The review went on to state:
“In summary, the industry state of knowledge in regards to the alleged issue is currently reliant on previous incident history providing the predominant facts available. No other information presented currently provides any solid evidence that suggests that paddle markers to be either a contributing factor/root cause or an unrelated factor. Alternatively, the use of witches hats as an alternative to paddle markers presents risks that can be readily identified using a factual approach. For this reason and for comparative purpose, the risk assessment associated with this review will assess the consequences of an incident associated with the paddle markers as a worst case scenario (ie the paddles are a contributing factor) so that direct comparison can be made against the risks associated with witches hats.
154 The recommendation set out in that report was as follows:
“In the absence of proven alternative systems of work specific to particular tracks, the use of paddle markers should continue where track markings are required.”[120]
[120]Exhibit 1
155 Had there been evidence in this case either from the jockey, Mr Caserta, or some other person observing or participating in the trial to the effect that the paddle markers themselves were a cause of injury to Mr Caserta, whereas a fixed rail would have prevented a lesser risk, I would have found liability against the defendant.
156 Insofar as the plaintiff relies upon the wider position on the track as a basis for establishing liability, I am again not convinced that the use of a plastic rail rather than a paddle marker would have altered the circumstances in which Mr Caserta was injured. On this aspect of the case I prefer the evidence of Mr Burnett, to which I have previously referred.[121] I have viewed the DVD of the trial on a number of occasions and I am satisfied that my observations of the movement of the horse immediately after it commences to veer left, are consistent with the observations made by Mr Burnett. I am not able to accept Mr Ring’s conclusion that as a matter of probability the position of a plastic rail rather than the paddle marker would have deflected Neat Feat back on to its path of racing and lessened or removed the risk of injury to Mr Caserta. I would describe the observed movements of the horse as rapid and aggressive. There is no evidence to persuade me that the presence of a plastic barrier with removable uprights would have substantially affected the outcome on this occasion.
[121]Paragraph 129 of this judgment
157 In the final result the plaintiff’s case effectively relied upon the court concluding that the recommendation made by Mr O’Keefe in September 2014 should have been adopted so as to apply to all horses rather than just unraced two year olds. Even if that were the case, on my reading of the review in Exhibit 1 and my viewing of the DVD of the trial, I could not come to the conclusion that the paddle markers were then causative of injury. In my view the root cause of Mr Caserta’s injury was the uncontrollable and erratic behaviour of his mount, Neat Feat.
158 To avoid any possible doubt, I would have reached precisely the same conclusion had Mr Caserta brought an action against his employer in respect of his own injuries.
159 Notwithstanding the non-deligable nature of an employer’s duty, it is nevertheless a duty to take reasonable care.
160 I am not satisfied in the present case that the plaintiff has proved any such breach as against the defendant.
161 The proceeding must be dismissed.
162 I will hear the parties in respect of formal orders sought and on the question of costs.
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