The current incarnation of the Workers’ Compensation Legislation is the Workers’ Compensation and Injury Management Act 1981 (WA) (“the Act”). There are very specific laws relating to jockeys which have, in the past, distinguished jockeys from other workers covered under the Workers’ Compensation Legislation.
Section 5 of the Workers’ Compensation and Injury Management Act 1981 (WA) defines a worker generally as:
“Worker does not include a person whose employment is of a casual nature and is not for the purpose of the employers, trade or business, or except as hereinafter provided in this definition a police officer or Aboriginal police liaison officer appointed under the Police Act 1892; but save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work or otherwise and whether the contract is expressed or implied, is oral or in writing;
The term worker, save as hereinbefore provided in this definition, includes a police officer or Aboriginal police liaison officer appointed under the Police Act 1892, who suffers an injury and dies as a result of that injury;
The term worker, save as aforesaid, also includes –
- any person to whose service any industrial award or industrial agreement applies; and
- any person engaged by another person to work for the purpose of the other person’s trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services; and
- any reference to a worker who has suffered an injury shall, where the worker is dead, include a reference to his legal personal representative or to his dependents or another person to whom or for whose benefit compensation is payable.”
The general definition of a worker within the legislation would seem to cover most types of employment relationships that one can imagine in the general labour market in Western Australia.
Jockeys are defined by their own separate section of the Act, namely section 11A.
Section 11A was, in its present form, came into operation on 14 December 2012.
The present definition makes a distinction between the employer of a jockey depending on the type of work that a jockey is carrying out at the time of his injury.
Jockeys traditionally engage in a number of activities as part of their occupation.
These include riding in races, carrying out riding work or track work which may be at “registered club premises” or may be at other premises.
Section 11A reads as follows:
“S 11A Jockeys
11A (1) In this section –
licensed facility means a place licensed as –
- a racecourse; or
- a training track; or
- a trial track,
under the Racing and Wagering Western Australia Act 2003;
licensed jockey means a person licensed as a jockey under the Racing and Wagering Western Australia Act 2003;
licensed trainer means a person licensed as a trainer of thoroughbred racing horses under the Racing and Wagering Western Australia Act 2003;
registered club means a racing club registered under the Racing and Wagering Western Australia Act 2003;
relevant day means the day on which the Workers’ Compensation and Injury Management Amendment (Jockeys) Act 2012 section 4 comes into operation.
(2) Notwithstanding section 11, for the purposes of this Act worker includes a licensed jockey who –
- is riding a horse in any race run under the management of a registered club; or
- is engaged –
- in riding work; or
- in carrying out the usual duties of a jockey,
at a licensed facility for a licensed trainer; or
- although not coming within paragraph (a) or (b), is engaged –
- in riding work; or
- in carrying out the usual duties of a jockey,
for a licensed trainer.
(3) For the purposes of this Act, the employer of a worker referred to in subsection (2) is taken to be –
- in the case of a worker referred to in subsection (2)(a) or (b), Racing and Wagering Western Australia; and
- in the case of a worker referred to in subsection (2)(c) –
- with respect to injuries occurring before the relevant day, Racing and Wagering Western Australia; and
- with respect to injuries occurring on or after the relevant day, the licensed trainer for whom the worker is engaged.”
THE HISTORICAL PERSPECTIVE
The abovementioned section 11A came into effect on 14 December 2012.
Prior to that, the legislation deemed that in all circumstances Racing and Wagering Western Australia was, for the purposes of the Act, deemed to be the employer of a jockey.
The previous section 11A also defined a jockey’s earnings which created a severe limitation on the amount of weekly payments that an injured jockey was entitled to if injured in the course of his employment.
Set out below is repealed section 11A to illustrate the differences.
“S 11A Jockeys
11A (1) [included as worker] Notwithstanding section 11, for the purposes of this Act, worker includes a person licensed as a jockey under the Racing and Wagering Western Australia Act 2003 –
- riding a horse in any race run under the management of a racing club registered under the Racing and Wagering Western Australia Act 2003; or
- engaged on a racecourse in riding work, or carrying out the usual duties of a jockey, for a trainer licensed as a trainer under the Racing and Wagering Western Australia Act 2003,
Racing and Wagering Western Australia is, for the purposes of this Act, deemed to be the employer of such a person.
(2) [earnings] The earnings of a person included as a worker under subsection (1) shall be deemed to be equal to the rate of wages, including special allowances, prescribed for stable foremen under the Horse Training Industry Award 1976 as made under the Conciliation and Arbitration Act 1904 of the Commonwealth as amended from time to time.”
The reference to section 11 of the Act is a reference to an exclusion of persons who are contestants in sporting or athletic activities.
Section 11 effectively states that any sportsman who is, pursuant to a contract participating in a sporting event or athletic activity, training or preparing themselves to do so, engaged in promotional activities in accordance with the contract or engaged in any journey to do with his sporting contract, is not a worker unless the contract entitles him to some sort of payment other than payment for those particular activities.
Accordingly, jockeys were treated by the legislation as a specific type of sporting contestants who were entitled to workers’ compensation benefits.
Section 11 in the current legislation remains the same.
As most in the room would be aware, the occupation or profession of a jockey can only be described as dangerous and risky.
It is well known that jockeys often suffer significant and serious injuries from race falls and sometimes falls or accidents can result in death.
Everyone would recall the tragic death of Jason Oliver, brother to Damian Oliver, in October 2002 when, whilst riding in a trial, the horse that he was riding broke a bone in its foreleg causing Jason to be trapped underneath the horse, dragged along the track and suffer severe head injuries resulting in his death.
Everyone would also clearly remember the ride of Damian Oliver on Media Puzzle in the 2002 Melbourne Cup in which he triumphed and dedicated his victory to the memory of his late brother.
The difficulty for jockeys under the old legislation arose both in relation to entitlements and also in relation to potential common law actions.
EARNINGS
In terms of workers’ compensation entitlements, jockeys were severely disadvantaged by the old section 11A(2) prescription of their earnings.
In the course of preparing this paper, I reviewed the Horse Training Industry Award which was ultimately terminated in 2011.
At that time, a stable foreman’s weekly wage rate was $578.20.
At the same time under the Workers’ Compensation Legislation, the “capped amount” for weekly compensation payments was $2,156.60, a very significant disparity.
Even when the award changed to the Horse and Greyhound Training Award of 2010, the rate for a stable foreman remained low and not indicative of the type of earnings that jockeys can make, if reasonably successful.
The present rate for stable foremen is $23.83 per hour, or $905.54 for a 38 hour week.
Having acted for jockeys in the past, it is not uncommon for a jockey to earn $150,000.00 per year or more by a combination of riding track work for trainers and race riding where they are usually paid a set fee per race, but also, if successful, receive a “sling” which is a percentage of the stake money awarded for a win or place.
The current legislative position is far more generous and no longer discriminates against jockeys but rather treats them similarly to any other injured worker in terms of weekly payment entitlements.
In terms of the weekly earnings of jockeys, by removing the prescriptive clause referring to awards, jockeys are now treated like every other type of worker under the Act in terms of calculation of their wages.
On 14 December 2012, clause 16A of schedule 1 of the Act came into force which stated that weekly payments for jockeys injured prior to 14 December 2012 were the aforementioned stable foreman rates under the relevant Commonwealth award.
By implication, thereafter, jockeys are treated like any other employee for the purposes of calculating their weekly earnings.
This means that subject to the “cap” on the rate of weekly compensation payments, which is presently $2,661.00 gross per week, a jockey will be entitled to:
- for the first 13 weeks of incapacity resulting from their injury amount B which is the worker’s average weekly earnings over a period of 1 year calculated on a weekly basis; and
- thereafter, 85% of that amount.
This means that a jockey can include all of their earnings from race rides, track rides, riding in trials and, presumably, declared stake money, in working out their earnings for the period of 1 year prior to any incapacity, which is obviously a much fairer way of compensating an injured jockey and brings them into line with the rest of the working population of Western Australia.
THE EMPLOYER
Under the present section 11A, the Act distinguishes between the activities that a jockey is carrying out when riding, and who is deemed to be their employer in each instance.
Provided a jockey is riding in a race under the management of a registered club, or is engaged in riding work, or carrying out the usual duties of a jockey for a licensed trainer, they will be classified as a worker.
The employer is determined by the activities carried out by the jockey at the time that they were injured.
Pursuant to subsection (3)(a), if a jockey is carrying out riding work or the usual duties of a jockey at a licensed facility for a licensed trainer, including riding in races, then the employer will be deemed to be Racing and Wagering Western Australia.
In the case of a jockey who is engaged in riding work or in carrying out the usual duties of a jockey for a licensed trainer but not riding in a race under the management of a registered club, or not riding at a licensed facility, then for injuries suffered from 14 December 2012 onwards, the employer is deemed to be the licensed trainer for whom the worker is engaged at the time of injury. If the accident occurred prior to 14 December 2012, then the employer is still deemed to be Racing and Wagering Western Australia.
The distinction as to the nature of the employer may be important when considering potential common law actions for an injured jockey.
COMMON LAW CLAIMS INVOLVING JOCKEYS
Common law actions involving jockeys are quite rare but there are some case examples which I will refer to later.
One of the difficulties for jockeys in taking a common law action prior to 14 December 2012, was the deeming provisions creating Racing and Wagering Western Australia as the deemed employer of a jockey.
This meant that in order to sue Racing and Wagering Western Australia, a jockey had to overcome the restrictions on common law actions contained within division 2 of part 4 “Civil proceedings in addition to or independent of this Act” of the Act.
Division 2 of the Act is entitled “Constraints on Awards of Common Law Damages”.
It establishes a regime where a worker, in order to sue their employer, must meet certain criteria in order for a court to be able to award that injured worker common law damages against their employer.
Without going into great detail, there have been a number of schemes in effect over the years to limit a worker’s basic common law right to sue their employer.
This includes the 1993 scheme which required a worker to have a degree of disability of at least 16% before they were entitled to sue their employer and be awarded damages, and the present scheme, known as the “2004 scheme”, which now uses a prescribed impairment rating system to limit a worker’s right to access common law damages.
Under the present 2004 scheme an injured worker must have a degree of permanent impairment of at least 15% before they are in a position to proceed with a common law damages claim.
An Example
Some time ago I acted for a jockey who suffered a significant arm injury whilst riding a horse in what was described to me as a “jump out” trial.
This involved the jockey being on a horse and effectively training the horse to get used to jumping out of a race barrier.
The incident occurred at one of the major racetracks on a 2 horse barrier supplied by Racing and Wagering Western Australia for that purpose.
Unlike race day barriers, the “jump out” barrier was a far more rustic piece of equipment with hazards and none of the usual padding that would normally be found in a race day barrier to provide jockeys with a measure of protection.
My understanding is that some horses do not like getting into barriers and will sometimes react adversely.
A lot of horses will move around within a barrier and this may cause a jockey to be crushed up between the horse and the side of the barrier.
This is what happened to my client in his accident.
Unfortunately for my client, he was crushed against the side of the barrier where there was no padding and this caused a significant elbow fracture which, once healed, left him with a lack of movement and strength.
Whilst he was able to return to race riding, he had suffered significant losses over a period of 6–12 months where he was unable to ride for a period and then limited in his ability to ride and was only compensated with weekly compensation payments calculated under the formerly meagre provisions discussed above.
I formed the view that there was an arguable case for a breach of the Occupiers’ Liability Act or negligence on the part of Racing and Wagering Western Australia, because of the state of the “jump out” barrier and the risk of injury to jockeys associated with using the barrier.
Unfortunately for my client, he did not meet the necessary prerequisite level of impairment, notwithstanding his fairly significant injury, to enable him to take any action against Racing and Wagering Western Australia due to their status as his deemed employer.
ACCIDENTS INVOLVING JOCKEYS DURING TRACK WORK
The case of Sestich v Van Heemst [2006] WADC 23 tried in the District Court of Western Australia in January 2006 dealt with an action taken by a jockey who suffered significant injuries whilst undertaking track work at Ascot Racecourse.
The plaintiff’s action was “vigorously” defended, a term which I find amusing but, in this instance, seems apt.
CIRCUMSTANCES
On the morning of 11 April 2002, the plaintiff, an experienced jockey, who was then 41 years of age, was riding track work at Ascot Racecourse on a horse named “Struck Oil”.
Initially, he began working the horse on what was described as the “warmup track” before taking the horse to a training track called “the big sand track” where he allowed the horse to gallop approximately 3 horses wide from the outside rail which was a requirement for fast track work, according to the rules.
At the 600m mark, he increased the horse’s pace to a working gallop and entered the straight and at this point was still approximately 3 horses’ width from the outside rail.
He felt the horse slow down significantly and begin to stumble.
The horse veered towards the outside rail and its right shoulder struck the horizontal outer rail at an angle of approximately 30° with the horse then sliding along the rail and the plaintiff’s right ankle becoming crushed between the horizontal rail and the side and rear quarter of the horse.
He was then flung from the horse over the outer rail and struck one of the upright posts with his right arm before falling on his back in the gap between the outer running rail and the rail of the adjoining Viscoride track.
I understand that the cause of the accident was that “Struck Oil” had suffered a heart attack during track work.
The plaintiff brought an action against Van Heemst as the then chairman of the West Australian Turf Club and the case centred around the nature of the running rails at the Ascot Racecourse. It was alleged by the plaintiff that the defendant and the Turf Club caused the plaintiff’s injuries by their negligence or breach of the Occupiers’ Liability Act.
The particulars of negligence were:
- Caused and permitted the solid steel running rail and posts to remain in place at the edges of the “big sand track” when in the circumstances it was unsafe to do so;
- Failed to install modern collapsible running rails and posts on the circumference of the “big sand track” so as to significantly reduce the risk of injury associated with inevitable riding mishaps;
- In the knowledge that riders had previously suffered severe injuries at Ascot and elsewhere as a result of contacting rigid running rails whilst riding, failed to take any or any proper action to reduce such risks for jockeys using the “big sand track”.
The evidence in relation to the running rails was that the West Australian Turf Club had installed tubular steel upright posts and tubular steel rails along the outer circumference of the “big sand track” where the plaintiff’s horse had collided with the rail and that the upright posts were cemented into the ground.
It was alleged by the plaintiff that these tubular steel vertical posts and steel running rails on the circumference to the big sand track posed a potential hazard to jockeys riding on that track because the posts and rails were not designed to collapse, flex or give way in the event of accidental contact by a horse or jockey. It was alleged that the West Australian Turf Club knew or ought to have known that the posts and rails presented a real risk of injury.
There was evidence that at tracks around Australia and on the main track at Ascot, which was grassed, there was a fence on the outside perimeter and an aluminium running rail on the inner side of the running surface which consisted of a horizontal aluminium strip or bar held in position by a series of upright steel posts. In particular, the legs of the upright or vertical posts were positioned in the ground outside the horizontal aluminium bar and thereby reduced the danger of a horse or jockey’s leg making contact with vertical support. The evidence established that throughout Australia aluminium running rails had almost completely replaced the tubular steel and wooden versions and that this was particularly true of racing tracks, as opposed to training tracks.
A witness was called to say that by the year 2000, most major courses in Australia had aluminium rails on training tracks and only a few retained timber or tubular steel rails.
Various witnesses were called, including racing trainers, to testify as to the significance of running rails and how they were used to guide horses and prevent them from running onto other tracks whilst racing or undertaking track work.
The plaintiff called evidence from other jockeys as to the knowledge of the defendant as to the hazard created by the existing rail system. The jockeys gave evidence of their own collisions and injuries.
The matter was heavily defended by the defendant on a number of grounds.
The defendant pleaded that given the circumstances of the accident there was no action that the defendant could reasonably have taken to prevent what occurred and that any injury or damage was not caused by any want of care of the part of the defendant and that the damage was inevitable in all the circumstances.
The judge determined that there was a reasonably foreseeable risk of an accident and that the rigid tubular running rails on the “big sand track” posed a real risk of injury to the plaintiff and other jockeys in the event of a collision during training.
He further determined that the defendant knew there was potential for serious injury to a jockey coming into contact with the pipe railing and then determined that the major issue in relation to liability was whether there was a practicable and safe alternative to the tubular steel railing.
The defendant’s argument was that regardless of the nature of the railing, the risk would have remained the same and tendered lots of evidence on this point, including expert evidence and DVD footage showing a series of accidents involving collisions between horses and riders with aluminium or Steriline railings, which was the safer alternative according to the plaintiff.
The judge determined that a comparison could not be made between the risk associated with an accident during racing as opposed to track work where there were fewer horses on the track, greater space between the horses and less likelihood of collisions.
He determined that the Steriline system, whilst not a complete answer to the safety of jockeys and horses, was substantially safer than the rigid tubular metal system.
In the end result he found that the defendant owed the plaintiff a duty of care to avoid exposing him to the risk of injury whilst using the training track and that the defendant breached the duty by failing to install a flexible rail system, such as the Steriline system currently in use on the Viscoride track at the time of the plaintiff’s accident.
As to causation, he found that the defendant’s negligence caused (in the sense that installation of the Steriline system would have prevented) the plaintiff to suffer a leg fracture.
The defendant argued that there was a voluntary assumption of risk and His Honour, after analysing a number of cases from numerous jurisdictions, decided that whilst the plaintiff must have known of the risk imposed by the solid rail system, his livelihood as a jockey was dependent upon the West Australian Turf Club and the facilities provided at Ascot and elsewhere. “He was in no position to ‘take it or leave it’”
The defendant also argued that there should be an exclusion of liability under a clause under the “Regulations applicable to racecourses and training grounds in Western Australia” which sought to exclude liability for negligence which may have caused any person any loss or damage or injury, or any horse any injury or damage.
His Honour found that the regulation was invalid and ultra vires.
The plaintiff received a significant damages award and although it appears the matter was appealed to the Court of Appeal, I can only assume that the matter did not proceed to a hearing and that that action was settled.
ACCIDENTS INVOLVING JOCKEYS DURING RACES
Unfortunately, accidents do occur during races and can have serious injury consequences for jockeys.
Sometimes the statutory compensation system will not be sufficient to properly compensate an injured jockey who, for instance, by reason of their injuries, may not be able to return to riding.
There are many practical difficulties for jockeys in pursuing alternative measures of compensation outside of personal insurance policies.
An option available to a jockey is to pursue a common law action in relation to injuries suffered in a race fall.
There would be little prospect of a jockey successfully suing his employer, whether that be the trainer at the time of the race or Racing and Wagering WA, and so in many cases, a jockey’s common law rights for injuries suffered during a race accident would be to sue a fellow jockey.
The general position with respect to cases involving jockeys suing other jockeys for race falls was eloquently stated by Chesterman J in Kliese v Pelling [1998] QSC 112 where at [12] he said:
“Thoroughbred horseracing is a competitive business which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are limited. It is, no doubt, for these reasons that claims for damages arising out of horseraces have been rare and are likely to remain so. But where evidence reveals that a rider has failed to take reasonable care which could, and therefore should, have been taken, the court is required by law to make a finding of negligence.”
Such a situation arose in the case of Dodge v Snell [2011] TASSC 19, a judgment delivered by Wood J on 21 April 2011.
The case is an interesting one because it considered all the relevant elements of law which require consideration in cases of this nature.
DODGE v SNELL [2011]
The circumstances of the case are that on 28 January 2007, the plaintiff, Kevin Dodge, rode “Oceano” in the Moorilla Stakes at Elwick Racecourse.
The defendant, Snell, rode “The Mighty West”.
Mr Snell drew the outside barrier and soon after the start of the race started to cross towards the rail.
After he had safely crossed in front of 2 horses he still had 5 horses to his inside with 3 at the front and 2, including the plaintiff’s mount, racing close behind them. The 5 horses were tightly bunched and racing close to the rail and to get to the rail and maintain the forward position, Snell had to cross in front of the 3 horses in the lead. In doing so, he shifted inwards to cross in front of a horse ridden by jockey “McCoull”, which caused his mount “Colonel Parker” to shift inwards. The horse behind, “Tal Jack”, then clipped heels with “Colonel Parker” and fell. This resulted in the plaintiff, who was directly behind “Tal Jack”, being unable to avoid the falling horse and his horse “Oceano” collided with “Tal Jack” causing the Plaintiff to be thrown through the air and onto the ground. “Oceano” then fell forward landing on top of the plaintiff and the resultant injuries to the plaintiff ended his professional career as a jockey.
Wood J wrote a lengthy and well-considered judgment dealing with a number of issues in determining whether the defendant, Snell, was to be held liable for causing the plaintiff’s injuries.
Some time was spent considering the application of the Australian Rules of Racing, including Rules AR.135 and AR.136, which are repeated below.
“AR.135 –
The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field.
“AR.136(1) –
If a horse –
- crosses another horse so as to interfere with that, or any other horse, or
- jostles, or itself, or its rider, in any way, interferes with another horse or its rider, unless such jostle or interference was caused by some other horse or rider –
such horse and any other horse in the same nomination may be disqualified for the race.”
There was also extensive discussion regarding a policy known as the “2 lengths policy”.
The policy effectively amounts to an understanding among jockeys during race rides that work as follows:
- Horses are entitled to jump from their position and to race without inference and this is known as their “rightful running”;
- When horses jump from a barrier they have a path moving forward and jockeys are entitled to race in that path, and that is considered rightful running;
- Other jockeys cannot shift ground inwards or outwards unless they are sufficiently clear of other horses so as not to cause interference with another horse’s rightful running;
- A gap of 2 lengths between horses is understood to be the safe distance for jockeys to move inwards or outwards; and
- 2 lengths refers to the distance from the nose of the lead horse to the nose of the horse in front of which it is crossing.
It was the plaintiff’s case that when the defendant started to cross in front of McCoull’s horse, he was well short of the 2 metre clearance and that the gap was not widening. Other jockeys called out to the defendant warning him that there was another horse on the inside of McCoull’s horse but the defendant continued to move inwards ignoring the warning and thereby causing interference to McCoull’s rightful running. As a result, McCoull’s mount was forced inwards. The defendant then realised the situation and straightened up but by that stage it was too late.
The defendant’s case was that as he started to cross in front of McCoull’s horse, he looked and thought he was 2 lengths clear. He had made an error of judgment and he was not 2 lengths clear at the time, however, it was error of judgment falling short of negligence. It was the kind of error that jockeys frequently make and he had taken reasonable care and not exercised a lack of reasonable care.
There were a number of factual issues for the court to resolve.
The various factual issues were resolved by His Honour, as follows:
- The defendant had looked to his inside and it was obvious that he was only 1¼ lengths clear of McCoull and he would have known then that the heels of his horse were extremely close to the heels of McCoull’s horse.
- The defendant looked but did not have a proper look. He either paid no attention to what he was looking at or paid attention and proceeded regardless, taking a calculated risk due to the short distance when the risk was significant.
- Although the defendant’s view was obscured as to other horses on the inside of McCoull’s mount, he assumed that if he closed in on McCoull, McCoull would shift across notwithstanding that his view was obscured as to who was on the inside of McCoull.
- There were calls from McCoull which were a warning to the defendant and the defendant either ignored those calls or didn’t register the calls because he was not paying attention. He continued on his path ignoring the calls or not paying attention to them in order to try to get to the rail.
- By shifting inwards the defendant got his mount so close to McCoull’s mount that an experienced jockey in McCoull’s position would take evasive action in order to avoid clipping heels, and this would be a deviation from his rightful running. When McCoull took evasive action, the defendant realised he had created a situation of peril and straightened up, but it was too late to avoid impact on other riders, and the falls occurred.
- Snell’s shifting inwards was a breach of the 2 lengths policy and it was of a kind which was rare and was particularly dangerous because McCoull’s capacity to avoid the danger was minimal.
- Although the defendant’s decision to cross over was based on a judgment made in a short period of time, as a jockey he was well trained and well equipped to make that judgment.
- There was no justification for such a poor decision on the part of the defendant to shift inwards as it was early in the race and there was ample time to get over to the rail before he reached the first turn of the track.
Was the defendant negligent?
His Honour resolved the issues in relation to the negligence calculus (see Wyong Shire Council v Shirt (1980) 146 CLR 40), as follows:
- Duty of Care
His Honour found that jockeys owe a duty of care to other jockeys to take reasonable care to avoid creating foreseeable risk of injury and that by shifting inwards the defendant exposed the plaintiff to a risk of harm which was “not insignificant” but was in fact “significant”. It was, therefore, a foreseeable risk of injury to the plaintiff and one which the defendant was aware and ought reasonably to have known of.
- The Assessment of the Reasonable Response to the Risk
This involved some complexities due to the fact that jockeys are effectively engaged in a sport and that the sport of horse racing has a number of inherent risks, but in addition, there are rules and conventions governing that sport creating an imperative for every jockey to use his best endeavours to win.
His Honour referring to Rootes v Shelton (1967) 116 CLR 383, stated that jockeys are required to avoid exposing fellow jockeys to any additional risk which was:
“a risk to which his participation in the sport could not be said, necessarily or ordinarily, to expose a participant [to]”, per Taylor J at 392.
Then quoting again from Justice Chesterman J in Kliese v Pelling [1998] supra, when referring to the “conflicting responsibility of a jockey between having to win races and also take care to other jockeys whilst doing so”, stated:
“Racing is the sport of kings, not of savages. Endeavouring to win does not entitle a jockey to ignore the safety of fellow riders.”
His Honour then referred to the provisions of the Civil Liability Act 2002 (Tas) which was also relevant but in effect just repeated the negligence calculus of Wyong v Shirt (the mirror provisions in the Western Australian Act are section 5B), to the effect that he needed to take into account in order to determine whether there had been a breach of the duty of care:
- the probability that harm would occur if care were not taken;
- the likely seriousness of the harm;
- the burden of taking precautions to avoid the risk of harm;
- the potential net benefit of the activity that exposes others to the risk of harm (in the Western Australia Act this is phrased as “the social utility of the act that creates the risk of harm”).
Was there a breach of the duty of care?
His Honour found that the defendant had breached his duty of care. He found that if there was an error of judgment, it was “… not the kind of ‘error of judgment’ that a reasonably competent professional jockey acting with ordinary care would have made” [195].
He found that by attempting to cross over at the time that he did, the defendant acted recklessly.
He found that the defendant exposed the plaintiff to a risk which was outside those said to be necessary or ordinarily accepted by the plaintiff by reason of his participation in the sport and that the defendant, had he exercised ordinary and reasonable skill of a jockey, would not have shifted inwards, and therefore, breached his duty of care.
Was there a voluntary assumption of risk by the plaintiff?
His Honour was required to consider both the common law position and the position under the Civil Liability Act (Tas) to determine whether there was a voluntary assumption of risk by the plaintiff.
His Honour summarised the common law position as being that in order to establish that the plaintiff had voluntarily accepted the risks associated with riding in the race, it had to be shown that the plaintiff –
“… freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, agreed to incur that risk: per Wills J, Osborne v London and North Western Railway Company [1888] 21 QBD 220 at 224, and approved by the Privy Council, in Letang v Ottawa Electric Railway Company [1926] AC 725 at 731.”
Further –
“knowledge that a risk exists is necessary but not sufficient to establish the defence, there must be a full appreciation of the risk and also voluntary acceptance of it: Smith v Baker & Sons [1891] AC 325, at 362.”
Following the judgment of McClellan C J in Carey v Lake Macquarie City Council [2007] NSWCA 4, at [76], His Honour stated that there were 3 elements which must be proved to establish a defence of “Volenti”, namely:
- that the plaintiff perceived the existence of the danger;
- that he or she fully appreciated it; and
- that he or she freely and voluntarily agreed to accept the risk.
He found that the Civil Liability Act impacted on the first 2 elements of the defence regarding the perception of the existence of the danger and the appreciation of the risk and that if the defendant established that the plaintiff voluntarily accepted the risk, then the plaintiff’s case must fail.
The effect of the Civil Liability Act provisions
By way of aside, the Civil Liability Act is legislation passed in the early 2000s in all jurisdictions in Australia.
In Western Australia, we have the Civil Liability Act 2002 (WA). The provisions are very similar to the other Australian jurisdictions, including the Civil Liability Act 2002 (Tas) which was considered in this case.
His Honour had to consider and apply the Civil Liability Act (Tas) with respect to the presumption created by the Civil Liability Act that a person who suffers harm is presumed to be aware of obvious risks (section 16 CLA (Tas) and section 5N CLA (WA)). The provisions in the CLA (Tas) and the Western Australian Act are fairly similar and I do not have time to go into the intricacies of the differences within this paper.
The sections create a presumption that a plaintiff is aware of a risk if it is an obvious risk unless the plaintiff proves, on the balance of probabilities, that they were not aware of the risk. The section goes further to say that the plaintiff can be aware of a risk if they are aware of the type or kind of risk, although not aware of the precise nature, extent or manner of occurrence of the risk.
It required further consideration of the meaning of “obvious risk”, a term defined in both the CLA (Tas), section 15, and the CLA (WA), section 5F. Essentially the definition of “obvious risk” is that it is “… a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person”.
His Honour considered whether there was an obvious risk by defining the precise nature of the risk he felt needed to be considered, namely that the risk was “… that of a horse and rider falling as a consequence of a jockey shifting in close to the running of another horse with a clearance of no more than 1¼ lengths, and when the field was tightly bunched to the rail. This characterisation of the risk may be refined further by including facts such as the jockey at fault ignoring warning calls from the jockeys in his pathway.”
His Honour found that the risk was an obvious risk to the plaintiff and he was therefore presumed to be aware of the risk.
Ultimately, the defence of Volenti failed, however, because His Honour found that the plaintiff did not accept the risk.
His Honour dismissed the defence of Volenti, summarising his finding as to the voluntary agreement of accepting the risk by the plaintiff, as follows:
“It is evident that Mr Dodge would have been aware of the risk of a fall arising from another jockey shifting inwards well short of the 2 lengths clearance, causing interference and clipping heels. However, his awareness of that risk was in a generalised sense and not the subject of any specific attention or focus; it was merely one of the ways in which he and other jockeys may come to harm; just one of the ways in which other jockeys may ride unsafely putting other jockeys at risk. The risk that materialised was not a risk that he specifically adverted to when he chose to ride on that day, or indeed, any day. In this sense, his awareness of it was much like the awareness that motorists have when they set out on a driving journey. His awareness of the risk was accompanied by a belief in his own skill and competence and capacity to manage many situations of risk and, at the outset of the race, a trust of fellow jockeys to ride safety vis-à-vis other jockeys. Furthermore, there was in this case, in a real and practical sense, a lack of choice about the risk. There was nothing that the plaintiff could do to avoid or reduce the risk if he was to work as a successful jockey. I positively conclude that the plaintiff did not voluntarily agree to the risk that eventuated.”
Unfortunately, that was not the end of the matter for the plaintiff who still then had to navigate his way through another defence raised under the Civil Liability Act provisions, namely whether he had suffered harm as a result of an obvious risk of a dangerous recreational activity.
Liability for Harm Suffered from Obvious Risks of Dangerous Recreational Activities
Once again, the provisions of the CLA (Tas) and CLA (WA), are similar in this regard. The CLA (Tas) provision is section 20 and the CLA (WA) provision is section 5H.
Once again, they have slightly different wording:
“Section 20–CLA (Tas)
- A person is not liable for a breach of duty for harm suffered by another person (“thePlaintiff”) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
- This section applies whether or not the plaintiff was aware of the risk.”
The provisions in the Western Australian Act are:
“(1) A person (the defendant) is not liable for harm caused by the defendant’s fault suffered by another person (the plaintiff) while the plaintiff is engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity.
- This section applies whether or not the plaintiff was aware of the risk.”
The definition of recreational activity is somewhat different in each of the Western Australian and Tasmanian Acts.
His Honour had to consider the definition of recreational activity under the Tasmanian Act and had regard to the fact that the plaintiff was engaged in his occupation whilst undertaking something that may also be considered to be a recreational activity.
His finding (at 278) was:
“As a professional jockey racing on this occasion in the course of carrying out his occupation, the plaintiff was not engaged in a recreational activity.”
In the end result, the plaintiff was successful and was awarded damages totaling $772,895.76.
CONCLUSIONS
Clearly, it is the case that working as a jockey is a dangerous and difficult way to earn a living.
Whilst the monetary rewards for successful jockeys are significant, it is a career that can be cut short very quickly by unfortunate accidents which are all too common.
In many instances, the statutory compensation system will provide inadequate compensation for jockeys, particularly if they are unable to return to their careers.
This may lead a jockey to the temptation to sue a fellow jockey for his race riding conduct, but such cases are fraught with considerable difficulty, not to mention the ability of a fellow jockey to meet a substantial judgment such as that awarded in the case of Dodge v Snell [2011] TASSC 19.
