Singh v Lynch

1. [1]

   In 2012 the plaintiff was a professional jockey. At a meeting of the Tamworth Jockey Club at Tamworth Race Course on 14 August 2012 he was injured in Race 7 when his mount, Blue Onyx, fell at the home turn. The plaintiff’s injuries were serious. The defendant, also a professional jockey, rode Darcey in this race. The plaintiff alleges that the defendant handled his mount negligently and that this caused Blue Onyx to fall and thereby caused his injuries. The parties have agreed upon the quantum of the plaintiff’s damages in the sum of $5 million. Liability is in issue.

Approval of the parties’ agreement on quantum

1. [2]

   The plaintiff suffered a closed head injury with a subarachnoid haemorrhage and right periorbital haematoma. He was knocked unconscious and remained in that state as he was transferred by ambulance from the track to Tamworth Base Hospital, then by air to the John Hunter Hospital at New Lambton. The plaintiff was treated in intensive care at the John Hunter and had to be intubated for the first 24 hours. After nearly 4 weeks he was moved to a brain injury unit and commenced intensive therapy. The head injury caused impairment of cognitive function that has gradually improved but has left the plaintiff with permanent deficits. These include diminished concentration and loss of short-term and long-term memory. The latter manifests itself in difficulty finding words, both in English and in the plaintiff’s native Hindi, difficulty managing his affairs and loss of competence in the tasks of daily living.

2. [3]

   Due to the brain injury the plaintiff’s wife has acted as his tutor in these proceedings. The agreement on quantum of damage requires approval pursuant to s 76 of the Civil Procedure Act 2005 (NSW). The plaintiff suffered post-traumatic amnesia of 19 days and has no recollection of his fall. He has been unable to give evidence of what happened in the race.

3. [4]

   A permanent consequence of the plaintiff’s head injury is right homonymous hemianopia, that is, loss of sight in half of the field of vision of his right eye. That condition will preclude the plaintiff from returning to his work as a jockey and he will never be able to drive a motor vehicle. The plaintiff’s principal facial injury was degloving of the lower lip. He sustained fractures to two vertebra of the thoracic spine.

4. [5]

   The plaintiff was born in May 1985 and was aged 27 at the date of the accident. He is now 34. The Court was asked to consider approval of the agreement on quantum prior to commencement of the hearing on liability. For that purpose there were tendered medical reports in the disciplines of neurology, neurosurgery, ophthalmology, orthopaedic and spinal surgery and rehabilitation medicine. Psychological, neuropsychological and occupational therapy assessments were also provided. Evidence was given of the plaintiff’s earning capacity as a jockey and the Court received a confidential advice of the plaintiff’s counsel. This material establishes that the agreement on quantum is beneficial to the plaintiff. Accordingly, before the hearing on liability commenced the Court informed the parties that the agreement on quantum is approved pursuant to s 76 and that an award in the agreed sum would be made if liability should be established.

Circumstances of the fall

1. [6]

   Race 7 was run over 1600 m clockwise, or right-handed, around the track, as is customary on New South Wales courses. Distances referred to in descriptions of the race are given in metres to the finishing post. The race was video recorded from four cameras at fixed locations around the track. Both the video recordings and numerous stills from them are in evidence.

2. [7]

   Two expert witnesses have provided reports in which they analyse the race, in particular the events that immediately preceded the fall. Mr Murrihy, who provided reports for the plaintiff, has had a career of more than 47 years as a stipendiary steward, holding senior positions on stewards’ panels in most Australian states. He has also served as a stipendiary steward in New Zealand, England, Ireland, Hong Kong, the United States of America and other significant horse racing jurisdictions.

3. [8]

   Mr Burnett provided reports for the defendant. He has retired after a long and successful career as a jockey in Australia, Hong Kong and the United States. He has served as a committee member and president of the New South Wales Jockeys’ Association and as a statutorily appointed member of the Tasmanian Racing Appeals Board. Both experts are well qualified to provide an explanation of what may be seen in the video recordings of the race and in the stills. The experts have given evidence about safe riding techniques in horse races and about the common expectations of jockeys regarding the conduct of their competitors. The two experts participated in a conclave and produced a report of their discussions, which has also been tendered. Both experts were cross-examined.

4. [9]

   A Stewards’ inquiry into the reasons for the fall was conducted at Muswellbrook on 17 September 2012. The defendant and Gregory Ryan, another rider in Race 7, gave accounts to the Stewards. Mr Ryan rode Decoree. The transcript of the Stewards’ proceedings has been tendered. Mr Ryan made a statement for the purpose of these proceedings. The plaintiff tendered the statement and Mr Ryan was cross-examined.

5. [10]

   The following short statement of some of my findings will assist in the subsequent analysis of the evidence upon which the findings are based:

   1. (1)

      From the 800m the leaders were King of the Range (Darren Jones) on the rail and Try to Please (Peter Graham) about one horse wide. These leaders were racing neck and neck or close to it. Behind them by a gap of about one length were Darcey (ridden by the defendant) on the inside and Decoree (Mr Ryan) about one horse wide. These horses were also running on equal terms.

   2. (2)

      Approximately 24 seconds later the field passed camera 4 at the 420m, approaching the home turn. The first four horses remained in substantially the same relative positions.

   3. (3)

      There was now less than one length clear from King of the Range back to Darcey (the defendant), still on the rail. Next out from Darcey and behind her by about a head or a half neck was Decoree. These two horses were separated by a gap of up to one horse width as they approached the turn.

   4. (4)

      Between the 800m and the 420m Blue Onyx (the plaintiff) had come up on the outside of Decoree, bringing his head to about the left flank of Decoree. The relationship between these two horses was described by Mr Ryan as Blue Onyx’s shoulders being on Decoree’s hindquarters.

   5. (5)

      In this situation at the 420m Darcey (the defendant) was in a pocket, at least for so long as Decoree was travelling as well as or better than Darcey. If Decoree (Mr Ryan) held her line of running, Darcey could not move off the rail to open up a run and overtake the two leaders around the outside of Try to Please.

   6. (6)

      At about the 420m or a little earlier the defendant commenced to ride Darcey forward and out from the rail, shifting wider to contact Decoree (Mr Ryan) and then exerting pressure to move Decoree to her left.

   7. (7)

      After contact was made Mr Ryan directed Decoree to hold her line of running, against the pressure from Darcey. The defendant directed Darcey to the left in a manner that increased the pressure on Decoree.

   8. (8)

      As this was occurring the field came into the home turn. King of the Range did not hold tightly to the curve of the rail but ran more or less straight ahead for a few strides at the commencement of the turn. This brought him off the rail by about one horse width and took Try to Please to about two wide.

   9. (9)

      Mr Ryan continued to direct Decoree to resist the pressure on her right from Darcey and to maintain her line of running. He also rode Decoree forward, limiting Darcey to only a head in front.

   10. (10)

       The defendant abruptly increased the pressure of his mount against Decoree and despite Mr Ryan having attempted to resist, Decoree was moved to her left.

   11. (11)

       The abrupt increase in pressure from Darcey caused Decoree’s hindquarters to be displaced to the left. The rear of Decoree contacted Blue Onyx somewhere between the shoulder and flank and there was either an entanglement with Blue Onyx’s legs or at least his stride was interrupted, causing him to blunder and fall.

   12. (12)

       No more than about 5 seconds elapsed from when the defendant commenced to ride Darcey forward and out from the rail at about the 420m (see (6) above) until Blue Onyx blundered. The horses were travelling at about 60 kph and would have covered approximately 80m in this interval.

   13. (13)

       By the time of the fall King of the Range was about 1½ wide and Try to Please was about 2½ wide as a result of these horses not railing tightly in the home turn.

   14. (14)

       Decoree did not blunder in the entanglement with Blue Onyx and Mr Ryan was able to ride his mount through to the finish.

   15. (15)

       Having pressured Decoree to the left the defendant rode Darcey along to improve outside Try to Please. He was unaware of the fall of Blue Onyx until he had completed the race.

6. [11]

   The plaintiff’s case on negligence is centred upon points (6)-(11). The plaintiff contends that the defendant’s handling of his mount was dangerous in that the pressure he caused Darcey to apply against Decoree was excessively heavy and sudden and constituted a negligent breach of the defendant’s duty of care owed to himself as another rider in the race.

The Australian Rules of Racing

1. [12]

   The race was conducted according to the Australian Rules of Racing, which were known to both the plaintiff and the defendant. Those rules and any infringement of them are relevant to the question of breach: Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39 at p 385 (Barwick CJ). In that case Kitto J observed (at p 388):

2. [13]

   In this case the Australian Rules of Racing are also relevant to whether the risks to which the plaintiff was exposed by riding in the race should be regarded as obvious within s 5F of the Civil Liability Act 2002 (NSW).

3. [14]

   Rule 135, as in force in August 2012, contained these subparagraphs:

4. [15]

   Both parties accept that Rule 135 in effect obliges all jockeys to ride to win – in the interests of their owners, their trainers and the betting public. For the defendant that meant that he should try to shift Darcey off the rail and attempt to establish a run on the outside of Try to Please. For Mr Ryan it meant that one alternative was to direct Decoree against the pressure and try to ride her along, to hold Darcey on the rail behind the leaders and to minimise the ground Decoree had to cover to the finishing post. A second alternative would have been to succumb to the pressure from Darcey and make his own run to the finish on the outside.

5. [16]

   Rule 137 places a limitation or qualification upon the competitive objective, as follows:

6. [17]

   Amongst participants in horse racing it is understood that careless riding in breach of this rule may be constituted by the rider of an inside horse directing his mount to push heavily against an outside horse in an endeavour to force the latter to shift across the track. Contact and some pressure is permissible. Mr Murrihy said in his first report:

7. [18]

   Mr Burnett said:

8. [19]

   The boundary between permissible lateral pressure and excessive pressure that would constitute careless riding is a matter of judgment. Mr Ryan gave the following evidence concerning the tension and interaction between Rules 135 and 137:

The defendant’s evidence at the Stewards’ inquiry

1. [20]

   Before the Stewards at Muswellbrook the defendant said that he had attempted to direct Darcey off the rail, “not in a rush or anything like that”. He said Darcey was “travelling pretty strong”. In order to establish a run past the leaders he had to “improve to a position three wide” (outside Try to Please). The defendant agreed with the Chairman that this meant he had to “take [Decoree] with” him, meaning he had to push Decoree to the left. The defendant told the Stewards that as he attempted this and improved on the leaders, King of the Range shifted to the left and took Try to Please across as well, necessitating that the defendant direct Darcey another horse-width or one-and-a-half horse-widths wider than he had expected.

2. [21]

   The defendant told the Stewards that at that stage he had already urged Darcey on and ridden her up to the “outside of heels” of Try to Please. When that horse shifted left under pressure from the inside by King of the Range, the defendant said he had no choice but to press Darcey harder against Decoree to force a run outside the leaders and avoid clipping the heels of Try to Please, which could have brought down both horses. In the course of questioning the defendant, the Chairman observed that “the last part of the shift” of Darcey pushing to her left against Decoree was “very abrupt”. The defendant gave these answers:

3. [22]

   Significantly, in these answers the defendant acknowledged that the “last part” of his application of pressure by Darcey against Decoree to “take [her] with” him in shifting to the left was “abrupt”. He accepted that it involved him riding Darcey to bump or bang Decoree, to push her wide. Both experts expressed the opinion, which I accept, that light side to side contact by the inside horse to encourage the outside horse to shift left is common practice and generally safe but heavy and/or abrupt contact capable of causing the outside horse to be shifted suddenly off its line of running is unsafe. Self-evidently it is particularly unsafe when the rider who brings the pressure to bear has not looked around to ensure that the horse to his left will not be pushed sharply into the path of another horse running behind and further off the rail.

4. [23]

   Before the Stewards the defendant confessed and avoided. The confession was to the abrupt pressure on Decoree by bumping or banging. The avoidance was his claim that he had established a run outside the leaders, that he had ridden Darcey up to a position outside the heels of Try to Please without carelessness and that he had then been forced to apply sudden heavy pressure to Decoree because King of the Range and Try to Please unexpectedly “came out an extra horse [width]” off the rail, to their left.

The conclusion of the Stewards and of the Appeal Panel

1. [24]

   The Stewards and the Appeal Panel were concerned with the application of the Australian Racing Rules. Their decisions are not determinative of whether the defendant exercised less than reasonable care in breach of a common law duty owed to the plaintiff. It is, however, useful to refer to what they said so far as it helps to identify factual issues that bear upon whether the defendant was negligent.

2. [25]

   The Stewards were unmoved by the defendant’s confession and avoidance. They charged him with careless riding contrary to r 137(a) and found the charge proved on the basis that:

3. [26]

   The Appeal Panel of Racing New South Wales upheld the conviction and made much the same analysis as the Stewards, as follows:

Mr Ryan’s evidence

1. [27]

   Mr Ryan has been a licensed professional jockey for 28 years. He has ridden in over 20,000 races, exclusively in country New South Wales. Mr Ryan has achieved over 3,800 wins, the second highest number for any jockey in the history of Australian racing. More than 1,800 of his races have been run at the Tamworth Race Course. He was called by the plaintiff as a witness to the events of the race rather than to give opinion evidence as a qualified expert. Some of his evidence did, however, involve expressions of opinion. Having regard to Mr Ryan’s experience and accomplishments and taking into account my assessment of his objectivity as a witness, his opinions are entitled to considerable weight.

2. [28]

   The following paragraphs are extracted from Mr Ryan’s statement of 22 July 2019, which he adopted in evidence:

3. [29]

   In cross-examination Mr Ryan qualified par 32 to the extent that he accepted there was “probably” constant contact between Darcey and his own horse. But he said this:

4. [30]

   Mr Ryan’s reference to having “half lost balance” was to some of the still photographs from camera 4, taken from behind the field as the horses entered the home turn. In those images (with a timestamp of 16:22 and 52.35 seconds to 52.62 seconds) Mr Ryan can be seen off centre to his right in the saddle. With respect to those images he gave these answers:

5. [31]

   In a later answer referring to the photographs Mr Ryan said:

6. [32]

   Mr Ryan acknowledged that King of the Range had come off the rail at the beginning of the home turn but he did not accept that this had any bearing upon the manner in which the defendant rode Darcey. He said that the actions of the defendant as described in the extracts from Mr Ryan’s statement quoted above had made clear the defendant’s intention, to shift to the left and to take Decoree with him, before King of the Range came away from the rail. Mr Ryan said that the defendant “was riding his horse forward to try to improve” without having established “clear running” or a “line of running” past the leaders. He said:

7. [33]

   Mr Ryan’s statement contradicts the defendant’s contention to the Stewards. On Mr Ryan’s description the defendant was buffeting Decoree in conjunction with riding up onto the heels of Try to Please and he then abruptly applied a higher impact pressure, forcing Decoree to the left to create a line of running that had otherwise not been established. Mr Ryan said that when this occurred Decoree was half a neck ahead of Darcey; the shoulders of Darcey were just behind those of Decoree.

8. [34]

   Before the Stewards, Mr Ryan was shown the video recordings and acknowledged that King of the Range came off the rail at a time corresponding with Darcey shifting more sharply against Decoree and pushing out her hindquarters to interfere with Blue Onyx. Under cross-examination in this Court Mr Ryan said that when he gave that evidence to the Stewards he was endeavouring to “soften the blow” for the defendant, whose conduct in the race was questioned heavily by the Chairman. The only way in which Mr Ryan may have softened his account to the benefit of the defendant, on my reading of the Stewards’ proceedings, was by not explicitly disputing that King of the Range’s movement away from the rail, going slightly wide around the home turn, was in any way causative of Darcey’s “sharper shift” (as he termed it) against Decoree.

9. [35]

   This minor and subtle difference between Mr Ryan’s testimony before the Stewards and his evidence in this Court does not give rise to doubt about his credibility or reliability. His evidence here was frank and open and impressive. Nothing in it was contradicted or made to appear improbable by the video recordings, the still photographs or any other objective evidence.

10. [36]

    Mr Ryan gave the opinion, based upon his experience, that everything done by the defendant prior to the abrupt bump was “within the usual practice of a jockey”. However, he observed that the defendant’s attention was entirely focused on his own mount and on Decoree and the two leaders. Mr Ryan said the defendant did not look behind him to his left or attempt to see whether there was another horse to the outside of Decoree that might have been hampered as a result of Decoree being pushed wide into such other horse’s rightful running. He considered that it would not be expected by a professional jockey in the position of the plaintiff that a sudden forceful bump would be applied by an inside horse in the position of Darcey, to push Decoree’s hindquarters to the left into Blue Onyx’s path, as occurred.

Video recording and still photographs

1. [37]

   In submissions counsel appropriately warned that when interpreting the video recordings and photographs allowance must be made for parallax error and other distortions. I take that into account. It is apparent on the video recording from camera 4 that this camera pans from right to left to follow the field as they approach the home turn. Once the horses pass the camera it is trained on the home turn and the lens is zoomed in. When the field have rounded the turn camera 4 gradually pans back to the right, tracking them onto the home straight. The critical portion of this video recording is time-stamped 16:22 and 51.50 seconds to 52.85 seconds. In that interval the horses are at an early part of the turn. Thirty-five stills are in evidence covering this period of 1.35 seconds. At approximately 60 kph or 16.67 m per second the horses would have covered 22.5 m in this 1.35 second interval.

2. [38]

   By comparing the alignment of objects in the middle and far distance of each of the 35 stills from camera 4 it is apparent that the camera alignment did not alter over the 1.35 seconds. Close reference to background objects shows that Try to Please did not move either to the left or to the right across the field of vision in this short interval. If he had been taking the home turn as tightly as possible he would be seen to move to the right through the sequence of photographs. It is evident from the images that both King of the Range and Try to Please separated from the rail as they cornered. Over the approximately 25.5 m covered in the 1.35 second sequence, Try to Please ran on a tangent to the curvature of the rail, corresponding with the camera alignment and therefore in a line that was for all practical purposes straight away from the camera.

3. [39]

   In this sequence the position of each horse is identifiable by the image of its rider’s back. At the commencement of the sequence (51.50 seconds) the defendant on Darcey is half a horse to the right of Peter Graham on Try to Please. Most of Peter Graham’s upper body is visible to the defendant’s left. In intervals of one quarter of a second the following relative movements may be seen in this rear-on camera view:

   1. (1)

      51.76: the defendant has moved left relative to Try to Please and is directly behind Peter Graham, obscuring him from view.

   2. (2)

      51.98: the defendant is half a horse to the left of Try to Please. Peter Graham is half in view to the right of the defendant. To the defendant’s left Mr Ryan is slightly off centre in the saddle of Decoree, tilted to his right.

   3. (3)

      52.25: the defendant is to the left of Peter Graham and Mr Ryan is still further off centre in his saddle. The hindquarters of Decoree are hard against Blue Onyx. Blue Onyx’s rump obscures the view of Decoree’s rear, consistently with Decoree’s hindquarters being in heavy contact with Blue Onyx’s left flank.

   4. (4)

      52.52: the defendant has moved far enough to the left of Peter Graham for a gap to be visible between the two riders. Mr Ryan is more off centre in his saddle and Blue Onyx has commenced to blunder.

4. [40]

   Because Try to Please was running straight ahead away from the camera in this sequence, the relative movement of the images of the defendant and of Peter Graham is attributable to Darcey shifting left. Try to Please does not move to the right, around the curve of the track, through this 1.35 second sequence of camera 4 photographs.

5. [41]

   The sequence of images is strongly corroborative of Mr Ryan’s evidence that the defendant abruptly directed Darcey to the left to increase the pressure on Decoree, pushing the latter sharply into the rightful running of Blue Onyx. At the beginning of this 1.35 second sequence, at 51.50, Darcey was running no wider than on a line behind Try to Please, that is, no more than one wide of the rail. Over half a second, between 51.76 and 52.25, the defendant rode Darcey a full horse to his left and took Decoree with him. Over the next quarter a second, to 52.52, the defendant pushed Decoree another horse-width to the left.

6. [42]

   In oral evidence Mr Ryan identified this sequence of stills as showing the critical increase in pressure from Darcey that he described in his statement and the consequent displacement of Decoree’s hindquarters. The head-on views of the field from cameras 2 and 3 confirm the sudden substantial shift of Darcey, taking Decoree with her into the path of Blue Onyx and bringing the latter down.

Mr Burnett’s analysis

1. [43]

   The defendant did not give evidence in this Court. His counsel relied upon the account he had given to the Stewards and upon Mr Burnett’s analysis of the video recordings and stills. By reference to the timestamps on the video recording from camera 4 Mr Burnett states in his first report that the defendant began to urge Darcey forward and to the left at about 16:22 and 46.09 seconds. That accords with the images, both moving and still, and with Mr Ryan’s evidence. The time of 46.09 seconds corresponds with Darcey being at approximately the 420m.

2. [44]

   Mr Burnett continues as follows:

3. [45]

   I accept, and Mr Ryan agrees, that “no sudden or violent move to the left” occurred at the commencement of the defendant urging Darcey forward and attempting to shift wider and take Decoree with him. However that is not true of what followed about 5 seconds later, as described at [38]-[41] above. I do not accept Mr Burnett’s interpretation of the camera 4 images in the critical interval of 1.35 seconds from 51.50, which he expresses in these terms:

4. [46]

   I am unable to see from the images to which Mr Burnett refers that Darcey ever had an “established line of running” outside Try to Please. Earlier than 51.50 Darcey was running on a line distinctly inside that of Try to Please. At 51.50 seconds Darcey’s line was slightly inside that of Try to Please. Even up to 51.98 Darcey was still substantially in line behind that horse (see [39] above). In my view Mr Burnett is in error to suggest that at any time before Darcey shifted heavily to the left against Decoree the defendant had a clear run ahead to improve outside Try to Please.

5. [47]

   Images from other camera angles and the descriptions given by Mr Ryan establish that from 51.50 or earlier the gap from the heels of Try to Please to Darcey’s nose was less than a length. That was plainly insufficient to permit Darcey to improve on Decoree while behind Try to Please and then to shift to the left ahead of Decoree and continue to improve outside Try to Please. Mr Murrihy’s opinion at par 9.5 of his first report supports this:

6. [48]

   I do not accept Mr Burnett’s interpretation that Try to Please “moves out into Darcey’s established line of running” at 51.96. No such thing appears in the images. There was no “established line of running” clear to the outside of Try to Please. Further, Try to Please “moves out” only in the sense of coming wider from the rail over the critical 1.35 second sequence. Try to Please came off the rail by running straight ahead where the rail curved away to the right. Mr Burnett himself observed this at par 6.3 of his first report where he said, in my view correctly, that at 52.06 seconds “Try to Please appears to continue more or less on a straight course”.

7. [49]

   Mr Burnett’s description of the course taken by Try to Please as a “shift to the left” is apt to confuse. He evidently means by this expression a shift relative to the rail, including around its curvature. He treats the failure of Try to Please to follow that curve in close parallel as a “shift to the left”. But the Stewards, Mr Murrihy, the parties to these proceedings and the Court have been and still are concerned with whether Try to Please made a shift to the left relative to the position of Darcey, not relative to some hypothetical line of running that might have tightly followed the rail where it curved to the right in the home turn.

8. [50]

   Mr Burnett acknowledged that taking the home turn wide by running more or less straight ahead for some distance at its commencement is common. In his second report at par 3.42 he said:

9. [51]

   On the basis of Mr Ryan’s evidence and my own review of the video recordings and still photographs I find that Darcey galloped towards the hindquarters of Try to Please, slightly inside and then directly behind that horse, and was blocked as a result of Try to Please initially running straight ahead in the home turn and taking it wide. Darcey’s forward progress was blocked as a result of Try to Please failing to turn away to the right, rather than as a result of that horse veering left into his path. The defendant may have counted upon Try to Please cornering tightly, maintaining a constant distance from the rail. He may also, or alternatively, have counted upon Decoree giving way to moderate pressure from his own mount and allowing him to direct Darcey wide on the outside of Try to Please. He found himself in a difficult position when Try to Please ran straight ahead at the commencement of the turn and Decoree resisted.

10. [52]

    I reject Mr Burnett’s interpretation that there was “no sudden movement by [the defendant] on Darcey, even when attempting to avoid clipping the heels of Try to Please”. The rapidity of Darcey’s shift to the left over the 1.35 second interval that I have analysed above can fairly be described as sudden. It was more than two horse widths over 1.35 seconds. At live speed in the head-on views of cameras 2 and 3 it appears as an almost instantaneous push by Darcey, thrusting Decoree out of the way and barging forward to the outside of Try to Please. Further, the defendant himself admitted to the Stewards that the last part of the pressure he applied against Decoree was abrupt and involved bumping or banging. This was part of his confession and avoidance, as referred to at [21]-[23] above.

11. [53]

    As regards the abrupt push, I strongly prefer Mr Ryan’s first-hand description over Mr Burnett’s analysis of the images. Mr Ryan was in an ideal position to observe exactly what unfolded. His long experience as a jockey enabled him to understand fully what was taking place, to remain composed and to take it all in. His description is consistent with my reading of the images, after making due allowance for the caution that must be exercised when interpreting them.

12. [54]

    The defendant’s concession to the Stewards that Darcey’s shift to the left was abrupt and that his mount banged or bumped into Decoree was proper. His claim that he was driven to this measure because King of the Range shifted to his left and took Try to Please with him cannot be reconciled to the video recordings and still photographs. There was no shift relative to his mount. The leaders’ movement away from the rail could at best be characterised as a failure to turn out of Darcey’s way, not a shift into her running.

13. [55]

    There has been no opportunity for the Court to hear this part of the defendant’s account tested in cross-examination, particularly by reference to the images. Before the Stewards the defendant had an interest to describe the race in a manner that would exculpate him. In contrast, I accept that Mr Ryan did not consider his own riding conduct to be in question at the Stewards’ enquiry. He had no reason to recollect the events selectively before the Stewards, to excuse himself or to place blame on the defendant. In his evidence in this Court I do not consider that Mr Ryan perceived himself to have any interest in these proceedings such as might distort his recollection.

14. [56]

    Mr Burnett said a contributing cause of Decoree interfering with Blue Onyx’s stride was poor track conditions on the home turn, causing the hooves of Decoree’s hind legs to slip to the left. He made the following statement at par 13.10 of his first report:

15. [57]

    Mr Burnett sought to support that view by reference to the camera 4 stills in the 1.35 second sequence, particularly at 52.22-52.35. He said of those photographs:

16. [58]

    In Mr Murrihy’s opinion the condition of the track surface did not contribute to the incident. He was not able to see any evidence in the video recordings and still photographs that the track was cut up or that its surface was unstable. In part he based this upon images showing the turf being kicked up as Blue Onyx fell. In Mr Murrihy’s view the disturbance of the turf was a result rather than a cause of the fall. Mr Murrihy’s interpretation of the images showing Decoree leaning heavily to its right is that this was caused by “extreme pressure … over some six strides” as the defendant pressed Darcey against Mr Ryan’s mount.

17. [59]

    I prefer the evidence of Mr Murrihy in this respect. Given Mr Ryan’s clear evidence that heavy pressure was applied by Darcey and that Mr Ryan forcefully directed Decoree to resist that pressure, it would necessarily follow that Decoree would have leaned to her right in order to counteract the pressure. The natural inclination for Decoree to brace against the lateral force amply explains the attitude of her legs as seen in the images, without resort to an inference that her hooves must have slipped.

18. [60]

    Mr Ryan directly refuted the suggestion that the condition of the track on the home turn could have contributed to any of the horses losing traction. He said:

19. [61]

    Mr Ryan explained that the heavy pressure from Darcey, not the condition of the track, caused Decoree’s hind legs to lose traction and to be pushed out into the path of Blue Onyx. I infer that if Decoree had slipped on a loose surface, Mr Ryan would have sensed it and described it. To the contrary, Mr Ryan gave these answers rejecting any contribution to the incident from the condition of the track:

Horse racing is a “dangerous recreational activity”

1. [62]

   It has been held that horse racing is a “recreational activity” within the definition of that expression in s 5K of the Civil Liability Act: Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [174], [177] and [182]-[211]. In that case there was no dispute that if horse racing should be so classified then it is also a “dangerous recreational activity”. In s 5K of the Act that expression is defined to mean:

2. [63]

   There is ample evidence in the present case of the significant risk of physical harm that is associated with horse racing. Mr Ryan said that he has had 20 or 30 falls over his career and that he has been injured in a least some of these. He agreed that more than 800 jockeys have been killed in the course of riding in horse races in New South Wales over the history of the sport in this State. He said, in effect, that a jockey must expect to be injured in a fall at some stage of his career. Mr Ryan agreed that there may be various causes of a horse falling during a race, not limited to contact with or interference by other horses but including, for example, injury to one’s own mount, such as breaking a bone. The risk that a horse may fall, taking the jockey to the ground and causing injury, is an obvious risk of the sport. That was the view taken in Goode v Angland at [166].

The defence of materialisation of an obvious risk

1. [64]

   Sections 5F and 5L of the Civil Liability Act provide as follows:

2. [65]

   The defendant has pleaded the defence in s 5L(1). This should be dealt with first, before considering whether there has been an actionable breach by the defendant of a duty of care owed to the plaintiff: Goode v Angland at [185]. In order to determine whether the defence has been made out it is necessary to identify what risk should be regarded as having materialised to cause injury to the plaintiff. The Court must then answer the question whether the risk so identified would have been obvious to a reasonable person in the plaintiff’s position, according to the concept of “obvious risk” in s 5F.

3. [66]

   It is apparent that if the Court identifies the risk that materialised in very wide terms, so as to include a broad range of contingencies that might eventuate, it is more likely that the risk so described will appear to have been objectively obvious. If the risk that materialised is identified narrowly by reference to the unique circumstances of the event that occurred, it will be less likely that it could be characterised as obvious to a reasonable person in the position of the plaintiff. In C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Santow JA said:

4. [67]

   The issue of how widely or narrowly the relevant risk should be defined, on any given set of facts, has been considered both in cases concerning the defence under s 5L and in cases involving s 5G (the presumption of awareness of obvious risks) and s 5H (exclusion of a duty to warn of an obvious risk).

5. [68]

   Section 5G(1) provides that, for the purposes of that section:

6. [69]

   This provision has been treated as an indication that for the purpose of identifying the risk that has relevantly materialised, in order then to determine under s 5F whether it would have been obvious to a reasonable person in the position of the plaintiff, “the risk should be assessed at a reasonable level of generality”: Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308 at [12].

7. [70]

   In Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32, a case concerning the defence under s 5L, Ipp JA said at [55]:

8. [71]

   In Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 the question was whether the operator of a skating rink was under a duty to skaters to warn them of a risk with respect to a set of stairs. At [30]-[33] and [39]-[41] Meagher JA concluded that the relevant risk was that of slipping and falling when negotiating a set of stairs while wearing skates. That risk was obvious. His Honour said that the trial judge had erred in defining the risk more narrowly, to include as features of the risk that the stairs were of uneven dimensions and were wet. The risk more narrowly and specifically defined may not have been obvious.

9. [72]

   Applying the principles from these cases, the risk to the plaintiff that materialised in the present case should be identified as the risk of his mount falling, bringing him to the ground and causing him injury. Stated in those terms, for the reasons given at [63] above on the basis of uncontested evidence from Mr Ryan, the risk would have been obvious to a reasonable jockey in the plaintiff’s position. It follows that by force of s 5L the defendant is not liable in negligence for the harm suffered by the plaintiff in the fall of Blue Onyx.

Plaintiff’s more specific formulation of the risk

1. [73]

   In reaching the above conclusion I have considered but rejected the more specific risk propounded by the plaintiff, which he submits was not obvious. The plaintiff characterised the risk that materialised in these terms:

2. [74]

   I am not satisfied that the defendant did “deliberately ride [Darcey] so as to cause reckless or deliberate contact with” Decoree. I find that his riding was careless. From Mr Ryan’s evidence, supported by the video recordings and still photographs and by Mr Murrihy’s analysis of those images, it is apparent that the defendant urged Darcey forward from about 5 seconds prior to the fall, at which time there was no run open to him outside Try to Please. For reasons given above I have rejected the contentions of the defendant and of Mr Burnett that Try to Please shifted to the left into the defendant’s path after he had commenced to ride Darcey along from this point.

3. [75]

   The defendant carelessly rode his mount close up to the heels of Try to Please in circumstances where he would be dependent upon Decoree giving way to his left, in combination with Try to Please taking the home turn tightly. The evidence establishes that it is a common occurrence for the rider of an outside horse such as Darcey to try to hold a competitor in a pocket and also for horses such as the leaders in this race to fan out and turn wide onto the home straight. It is unsurprising that the defendant lost his gamble. Decoree held to her line and was not shifted wider by the initial moderate pressure from Darcey. Try to Please ran straight ahead for a few strides at the beginning of the home turn. Darcey remained boxed in, with Try to Please ahead and Decoree to the left.

4. [76]

   I find that in this situation the defendant had placed himself in a position where all the alternatives involved a risk of accident. I accept Mr Burnett’s description of the defendant’s predicament and the unpalatable alternatives facing him, as recorded in the following passage of his oral evidence – subject to the qualification that for reasons already given I find that the situation arose not from Try to Please shifting into the defendant’s path but simply from the leaders taking the home turn wide:

5. [77]

   Fault for getting into this predicament lay with the defendant. He failed to allow for the capacity of the outside horse told him in and for the inclination of the leaders to take the turn wide. But I find no reason to doubt Mr Burnett’s description of the Hobson’s choice with which the defendant was then presented. He could try to pull his horse up and create the danger of clipping the heels of Try to Please, bringing one or both horses down and causing hazard to the followers. Alternatively he could push more heavily to the left to shift Decoree and establish a line for himself outside Try to Please, in the process potentially creating a danger for any horse running outside and behind Decoree, such as Blue Onyx.

6. [78]

   In the terminology of the plaintiff’s formulation of the risk that materialised, I find that the defendant rode Darcey to cause “deliberate contact with an adjoining horse”, namely Decoree. I am satisfied that this was careless riding contrary to the Australian Rules of Racing. I find that it was not excused as a manoeuvre necessary to avoid clipping the heels of Try to Please because the defendant was careless to have urged his mount forward to a position where those were his only alternatives. However, I am not satisfied on the balance of probabilities that in proceeding to this dangerous position, or in pushing heavily against Decoree to get himself out of it, the defendant’s riding was reckless in the sense of the defendant recognising the risk of harm to another horse and/or rider and proceeding with his actions indifferent to whether or not such harm should result.

7. [79]

   In mitigation of the defendant’s riding at the critical time I take into account the following factors:

   1. (1)

      the speed at which the horses were galloping;

   2. (2)

      the close proximity of the horses to each other, which as far as the evidence shows is usual and acceptable;

   3. (3)

      the expectation upon the jockeys that they would ride competitively;

   4. (4)

      the extremely short timeframes, measured in fractions of a second, within which decisions had to be made by each rider and

   5. (5)

      the inevitable and variable delay that must occur between a jockey’s decision and the signal to and response of the horse.

8. [80]

   Given the demands of the dynamic situation and the necessity for the defendant to make instantaneous decisions, I am not able to infer on the balance of probabilities that he must have foreseen a risk to another rider, for example in the position of the plaintiff, and determined to push to the left with indifference. I accept Mr Ryan’s evidence that there was a period over which the defendant pressed his mount against Decoree with no more than a reasonable degree of pressure. Mr Burnett appears to be correct in saying that this commenced at about 46.09 seconds on the recording from camera 4: see par 7.10 of Mr Burnett’s first report. Pressure at a permissible level continued for approximately 5 seconds up to the commencement of the 1.35 second sequence in which the heavy pressure was applied.

9. [81]

   As appears from [72] above, I do not consider that the putative obvious risk should be characterised in terms that include a breach of the rules of racing by another jockey. But if I am wrong in that, the most specific formulation of the risk that materialised would be, on the facts as I find them: the risk that another jockey would ride carelessly in breach of r 137(a) by riding out from the rail, carrying another horse (Darcey) with him, thereby causing the second horse (Darcey) to intrude on the rightful running of the plaintiff’s mount and bring him down, causing injury.

The more specific risk was also obvious

1. [82]

   There is a great deal of evidence to show that careless riding is a common occurrence. Mr Ryan agreed that he has himself been charged with breach of r 137(a) on many occasions. The plaintiff’s riding record, similarly, shows that on eight occasions he was found guilty of careless riding contrary to r 137(a) in circumstances that involved him shifting his mount across the track. The dates and places were: 24 November 2009 at Scone; 21 December 2009 at Cessnock; 1 February 2010 at Tamworth; 14 November 2010 at Dubbo; 18 January 2011 at Gunnedah; 29 January 2011 at Armadale and 14 February 2011 at Muswellbrook. Prior to the accident his most recent charge under that rule arose out of a race at Gilgandra on 28 July 2012. He shifted in front of another horse when not clear, causing the other horse to strike the heels of his own mount. The plaintiff’s horse blundered but was checked and did not fall.

2. [83]

   Statistics collected by Racing New South Wales in annual reports for 2006, 2007, 2011 and 2012 show that in each of those years between 240 and 300 of breaches of r 137(a) were found proved. I infer that the number would have been similar in all years from 2006 up to the date of this accident. Mr Ryan said that to his knowledge on “hundreds of occasions every year jockeys are charged and suspended for careless riding”. He said the majority of careless riding charges are where the jockey has allowed his horse to shift but usually this is a shift inwards, where the rider is “trying to get in close to the rail to not cover excessive ground”.

3. [84]

   Mr Ryan gave these answers in cross-examination:

4. [85]

   Later Mr Ryan answered further questions as follows:

5. [86]

   This evidence must be considered together with that quoted at [19] above concerning the tendency of jockeys to push the boundaries of the rules. It is necessary to take into account imprecision in the rule as it applies to lateral pressure between horses. The combination of these factors means that in any race there is inherently a risk that a jockey will misjudge how firmly he may legitimately push against a competitor and that he will apply excessive pressure in breach of r 137(a), although not intending wilfully to infringe. There must also be in every race a risk that a jockey, feeling the obligation to give his mount its best chance in the race and having to make split-second judgments about how he should ride in order to achieve this, will ride in a manner that he knows will exceed the rule and that, in the event, proves to be dangerous. There must always be a risk that through poor judgment a jockey will urge his mount forward in the hope of easing a competitor out of the way without infringement of the rules, or predicting that in some other way a run will open up, and then finds himself in a situation of danger from which he will seek to escape by pushing the competitor heavily and carelessly aside.

6. [87]

   The infringement statistics and the racing records of Mr Ryan and of the plaintiff demonstrate that breaches occur frequently enough for it to be said that riding contrary to the rules is an obvious risk within s 5F. By formulating the risk that materialised in such a way as to incorporate a breach of the rules of racing, the plaintiff does not show that the risk is any less obvious. Accordingly, even if the risk that materialised should be identified in the narrower and more specific terms considered at [81] above, that was still an obvious risk within s 5F and the plaintiff’s claim is defeated by s 5L.

Breach of duty of care

1. [88]

   In view of these conclusions it is not necessary to determine whether the defendant breached a common law duty of care owed to the plaintiff. Nevertheless I will address that question for completeness. The defendant does not dispute any of the following matters:

   1. (1)

      that he owed a duty of care to the plaintiff;

   2. (2)

      that from the defendant riding his mount in the race there arose a risk of harm to the plaintiff, of which the defendant knew or ought to have known (s 5B(1)(a) of the Civil Liability Act) and

   3. (3)

      that the risk was significant (s 5B(1)(b).

2. [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.

3. [90]

   In Smolden v Whittworth (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):

4. [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:

5. [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:

6. [93]

   The plaintiff contends that a reasonable person in the defendant’s position would have refrained from directing Darcey to push heavily to the left against Decoree. To decide whether that is so the Court must have regard to 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. It is necessary to look at a longer time frame that just the point at which the heavy push took place. There must be an examination of whether the defendant’s mount got to such a position that it became reasonable by the common law standard for him to push heavily, notwithstanding the potential for interference with another horse, in order to avoid the possibility of some other accident being caused by failure to shift Decoree to the left. Consideration must be given to whether the defendant failed to exercise reasonable care towards the plaintiff by getting himself into such a position.

7. [94]

   As the defendant passed camera 4 at the 420m mark he faced a choice. He could accept that Darcey was boxed in by Decoree and maintain his position and pace while he waited to see if a run would open up. Alternatively he could try to better his position by urging his mount on, with the object of taking advantage if the leaders should turn tightly and open up a run outside Try to Please and/or if he could ease Decoree wider. As to the latter Mr Burnett said:

8. [95]

   Approaching the home turn at 16.6m per second with only 420m of the race left, there was no time for the defendant to ponder the choice between staying in the pocket or trying to extricate. An instant decision was required. Delay would commit the defendant to the passive alternative. I am not satisfied on the balance of probabilities that he acted with less than reasonable care towards his competitors in deciding to ride Darcey forward, commencing at about 16:22 and 46.09 seconds (on the timestamp of camera 4). It was careless, in contravention of r 137(a), to ride forward and take the risk, when there was no established run. But, as earlier noted, that is not decisive.

9. [96]

   The decision proved to be a bad one for the safety of other riders. Mr Ryan, a very experienced jockey, was resolute in holding Decoree to her running in order to keep Darcey boxed in. Decoree proved up to the task. Try to Please did not track to his right around the home turn and no run opened up outside the leaders. The fact that the defendant’s decision did not pay off and put his horse in a predicament close up to the heels of Try to Please, galloping hard with nowhere to go, does not prove that the decision made seconds earlier to urge Darcey on to this point was made with less than reasonable care. This was a lapse of judgment under intense time pressure, in dynamic circumstances and where the defendant and all of the jockeys around him were under a professional obligation to race to win.

10. [97]

    The defendant’s first decision, to come off the rails and ride his mount along, thus quickly led to the need for another instant choice, namely, either to push still more heavily against Decoree or to check Darcey back from the heels of Try to Please. I accept the evidence of Mr Ryan and of Mr Burnett that once the defendant had committed himself by “firing up” Darcey it would not be possible instantaneously to slow the horse down and that, having got close onto the heels of Try to Please, if he then checked his mount there would have been at least some risk of the horse pulling up to a degree that would cause interference with others coming behind.

11. [98]

    The defendant chose the alternative of pushing Decoree heavily to the left. Again that was adverse to the safety of other riders but not unreasonable having regard to the pressure of the predicament, albeit of the defendant’s own making pursuant to his first decision. I am not persuaded that the defendant breached his common law duty of care to the plaintiff.

Orders

1. [99]

   For these reasons there will be judgment for the defendant.