Jockey and exclusion for CLA/worker or not

Appo v Stanley & Anor [2010] QSC 383

CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where plaintiff worked as a jockey and suffered injury to discs in his cervical spine in a fall during a race – where plaintiff alleged that the fall was caused by the negligent riding of the respondents – where both liability and quantum in issue – where the respondents owed a duty to take reasonable care to avoid creating a foreseeable risk of injury to other riders – whether the respondents breached essential safety rules – whether the respondents breached their duty to take reasonable care – whether the restrictions on damages imposed by the Civil Liability Act 2003 (Qld) apply to the claim

Issues:

Both liability and quantum were in issue and in particular, whether the duty of care had been breached and the quantum limitations imposed by s 5 of the Civil Liability Act 2003 were applicable by reference to:

  Workers’ Compensation and Rehabilitation Act 2003 (Qld),

s 11, s 32(1)

Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519; [2006] QCA 48

 Prior to its amendment by the Criminal Code and Civil Liability Amendment Act 2007

Facts:

The plaintiff on his ride “Lough Key” claimed he had the “rightful running”, but was squeezed out by the other defendants on their rides and in the process his horse clipped the hooves of the second defendant’s which caused him to suddenly check and eject over the head of his ride.

There was some considerably controversy about the race, the video, the stewards inquiry, previous testimony, credibility of the plaintiff due to failure to disclose cash earnings and suspensions and convictions for cannabis use.

McMeekin J:

The Relevant Principles

[39] Jockeys, like all of us, owe a duty of care to those around them. In the course of a race they are required to take reasonable care to avoid creating a foreseeable risk of injury to other riders. It is necessary, of course, to bring into account that they are engaged in a sport, that that sport has inherent risks, and that they are obliged to use their best endeavours to win.[20]

[40] What the defendants were required to avoid doing in the circumstances here was “unreasonably exposing [Appo] to some additional risk, that is to say, a risk to which his participation in the sport could not be said, necessarily or ordinarily, to expose a participant” per Taylor J in Rootes v Shelton.[21] As Gleeson CJ observed in Agar v Hyde, citing Rootes v Shelton: “Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity.”[22]

[41] It is difficult to improve on the summary of the competing considerations set out by Chesterman J (as his Honour then was) in Kliese v Pelling that the parties have referred me to:

“[T]he court ought not to be too delicate in its assessment of the defendant’s conduct which is said to have been negligent. Thoroughbred horse racing is a competitive business which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are limited. It is, no doubt, for these reasons that claims for damages arising out of horse races have been rare and are likely to remain so. But where evidence reveals that a rider has failed to take reasonable care which could and therefore should have been taken, the court is required by law to make a finding of negligence.”[23]

[42] Only one additional rule or guiding principle of racing was said to be relevant in this case. Australian Rule of Racing 136(1) provides: “If a horse… crosses another horse so as to interfere with that, or any other horse… such horse… may be disqualified for the race.[24]

[43] The evidence made plain that in the application of this rule the rule of thumb adopted by all jockeys, and it is an important safety rule, was known as the “two lengths rule” – that is that jockeys are not permitted to allow their horse to cross in front of another horse unless they are two lengths clear of that other horse.

[44] Of course breach of the rules of racing, or of any such safety rule, is not the same as breaching the duty of care owed in all the circumstances. To put the case in a more familiar context, sometimes it is perfectly reasonable to drive on the wrong side of the road. So much is clear from the judgments in Rootes v Shelton, for example that of Barwick CJ where he said:

“By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connexion, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.”[25]

[45] The plaintiff’s case here is that the relevant risk was that of moving across another horse when travelling at speed, with the rider of that horse being suddenly deprived of room in which to run, and so causing that horse to check suddenly with the potential for the horse to throw its rider and cause possibly serious injury, even death.

[46] While it may be reasonable, in some circumstances, to ignore the two lengths rule, no-one suggested that it was so here.

[47] I note that in Kliese v Pelling, Chesterman J considered it clear that “before moving his horse left or right, a jockey should at least glance in that direction to ascertain that the manoeuvre will not bring him directly in front of another horse and so close that their hooves might touch or into contact with another horse.”[26] Given the serious risk of injury involved and the well accepted safety rule, I have no doubt that was the duty on the defendants here – not to move left or right unless they had checked to ensure that in doing so they would not cause the horses to meet or their hooves to touch or force another horse into such a situation. No competing consideration,[27] such as the need to use best endeavours to win, has the effect of displacing that duty.

[48] I bear in mind too the evidence concerning the ability of jockeys to control a horse. A jockey’s capacity to ensure that his horse runs straight is limited. Horses can engage in unexpected manoeuvres. Mr Stanley gave some examples as a horse “having trouble in the ground, change of stride, hanging out … runs away from another horse”.[28] Wet conditions adversely affect the jockeys’ ability to control their mounts. Ordinarily of course it is plain that a professional jockey can and does control his mount. As McGill QC DCJ observed in Flanders v Small, it would be difficult to conduct horse racing if that was not so.[29]

His Honour was satisfied that the testimony given at the steward’s inquiry was not indicative of credibility, but rather the code of ethics amongst riders to protect one another. Likewise, his Honour was not persuaded that the undisclosed cash earnings affected the plaintiff’s credit because it was not a large amount. In addition, the failure to disclose a conviction and suspension for drug use in the context of other disclosures where similar matters had been disclosed was not considered fatal, but rather an oversight.

His Honour was not assisted by the expert testimony, but relied heavily on the evidence of Mr Attard who was a jockey on a ride trailing the plaintiff and defendants and had the best view of the race. His Honour also  accepted the plaintiff called out 3 times in the lead up the fall trying to maintain his “rightful running”.

[62] I am satisfied that the pressure that came onto Lough Key was caused at least in part by the movement of Kelso Reef[41] and that movement was the result of a deliberate action by Mr Stanley. His action in so riding Kelso Reef breached an essential safety rule, was causative in the eventual fall, and was negligent.

65] I see no reason to doubt Mr Attard’s evidence. Again he was in a good position to see and had no interest in the outcome. He gave his evidence confidently and I have no doubt that he was convinced of what he reported. There is no reason to think that he would be fooled by the curve in the track, a curve that he himself was taking, and so misinterpret the path taken by Red Bay. His evidence confirms that of Mr Appo.

[66] A further matter that provides significant confirmation of what occurred lies in the evidence that Mr Appo called out on three occasions. Mr Simmons’ acceptance that the calls occurred shows that Mr Appo was not making up a convenient story. The fact that Mr Appo felt the need to call out as he did suggests very strongly that he appreciated that he was getting into difficulties over time and not as a result of a sudden unexpected movement of one of the horses.

[67] I note that the two earlier calls, at least, were made in sufficient time to constitute a warning to stop moving in on his running.

[68] I am satisfied that Mr Simmons’ riding involved a breach of an essential safety rule. His action in causing his mount to move in resulted in Mr Appo having no way to move out and avoid Kelso Reef as it came out, as he had been able to do earlier in the race. Mr Simmons exposed Mr Appo to “a risk to which his participation in the sport could not be said, necessarily or ordinarily, to expose a participant.”[42] Had Mr Simmons exercised reasonable care Mr Appo would not have lost his “rightful running” and in all probability would have avoided the fall.

QUANTUM

Does the Civil Liability Act 2003 have application to the claim?

[69] There is a preliminary issue. All civil claims for damages for personal injury are governed by the Civil Liability Act 2003 (“the CLA”), with consequent significant limitations on the damages that can be awarded, save those excluded by s 5 of the CLA. Here the plaintiff contends, and the defendants dispute, that the exclusion applies.

[70] As the plaintiff’s injuries were caused before 6 November 2006, this proceeding is to be determined on the basis that s 5 of the CLA, as in force prior to its amendment by the Criminal Code and Civil Liability Amendment Act 2007, continues to apply to it.

[71] Section 5(1) of the CLA, as it was prior to the 2007 amendments, relevantly provided as follows:[43]

“5 Civil liability excluded from Act

This Act does not apply in relation to any civil claim for damages for personal injury if the harm resulting from the breach of duty owed to the claimant is or includes –

(a) …

(b) an injury as defined under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies; …”

[72] It is common ground that neither of sections 34(1)(c) or 35 of the Workers’ Compensation and Rehabilitation Act 2003 (“the WCRA”) applies here.

[73] The question then is whether the plaintiff suffered an “injury” as defined in the WCRA. Section 32(1) of the WCRA provides that definition in the following terms:

“An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.”

[74] It can be seen that there are three conditions necessary for an “injury” to fall within the WCRA definition – the injury must be “personal injury”, the injury must “arise out of, or in the course of, employment”, and the employment must be “a significant contributing factor to the injury”.

[75] In Newberry v Suncorp Metway Insurance Limited,[44] where the Court of Appeal considered the application of the exclusion in the context of a motor vehicle accident, Keane JA (as his Honour then was) pointed out at [19]:

“It is clear from the provisions of the WCRA that, when s 32 speaks of an “injury”, it is necessarily speaking of an injury to a person who is in a relationship of employment with his or her employer. That this is so sufficiently appears from the terms of s 32 itself…”

[76] After analysis of the position in Newberry Keane JA concluded (the Chief Justice and Muir J concurring):

“In short, s 5(b) excludes from the scope of the CLA claims which involve the assertion that the personal injury caused by the breach of duty by a non-employer occurred in circumstances where the claimant’s employment activities nevertheless also contributed to the occurrence of that injury in a way which is significant.”[45]

[77] Absent that relationship of employment between the plaintiff and another, the exclusion can have no application. Here there is no argument but that the activities of Mr Appo’s employment as a jockey significantly contributed to his injury. The debate centres on the nature of that employment relationship and whether it is of the type contemplated by the legislation.

[78] The defendants argue that the plaintiff was not in “employment”, as that term is used in the WCRA, at the relevant time because he was self employed. That is how the plaintiff describes his status in his Quantum Statement.[46] The plaintiff argues that he was an employee – an employee of those who engaged him. The plaintiff submitted that whilst all workers were necessarily employees not all employees were necessarily workers. I reject that submission for the reasons that I will explain.

[79] “Employment” is not defined in the WCRA. However, as observed in Newberry, it is evident from numerous provisions in the WCRA that the Act is concerned with the relations between an “employer” as defined and a “worker” as defined. A few examples include the provisions which impose on an employer an obligation to pay compensation,[47] require an employer to hold certain insurance,[48] and regulate access to damages by a worker.[49] Hence for the relevant employment relationship to exist it necessarily follows that the plaintiff had to come within the definition of “worker”, and those who engaged him within the definition of “employer”. Those terms are defined in the WCRA.

[80] Before turning to the definitions it is necessary to consider the circumstances of the plaintiff’s engagements. When a professional jockey rides in a race he or she is engaged by the owner or trainer of the horse. The terms of that engagement are a matter of private contract. Professional jockeys are paid, at least, a riding fee prescribed by Queensland Racing Limited and a percentage of the prize money won. Sometimes they are paid a gratuity by a grateful owner.[50] Whilst an owner or trainer can give the jockey instructions it is obvious that it is entirely up to the jockey to exercise his care and skill in determining how to achieve the best outcome in the race as it unfolds. The plaintiff worked for multiple owners, determined where and when he would ride, exercised his own judgment in the way in which he rode, and met his own expenses, or at least could not depend on his owners doing so.[51] All this confirms that the plaintiff was a self employed independent contractor.

[81] When one turns to the definitions it is evident that such self employment is not what the legislature contemplated as the employment relationship sufficient to attract the exclusionary provision in s 5(b). Those definitions show that to be an “employer” within the meaning of the WCRA one must employ a “worker” as defined and, to be a “worker” as defined, one must either work under a contract of service or be included, and not excluded, by the extended definition.

[82] Section 11 defines “worker” as follows:

“11 Who is a ‘worker’

(1) A ‘worker’ is an individual who works under a contract of service.

(2) Also, a person mentioned in schedule 2, part 1 is a ‘worker’.

(3) However, a person mentioned in schedule 2, part 2 is not a ‘worker’.” (underlining added)

[83] No category of person nominated in schedule 2, part 1 applies.

[84] It cannot be sensibly argued that the plaintiff, when working as a jockey, worked under a contract of service. The distinguishing feature between an employee working under a contract of service and an independent contractor engaged under contracts for the provision of services is often cited as control. No doubt owners and trainers give jockeys their riding instructions but their capacity to control the jockey is very limited. And while control is a significant factor it is not the sole criteria as explained by Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd:[52]

“A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it: Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; (1955) 93 CLR 561 at 571; Federal Commissioner of Taxation v Barrett [1973] HCA 49; (1973) 2 ALR 65 ; 129 CLR 395 at 402; Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389. In the last-mentioned case Dixon J said [at 404]:

‘The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible, but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.’

But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539 at 552; Zuijs’ case; Federal Commissioner of Taxation v Barrett at 401; Marshall v Whittaker’s Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 at 218. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”

[85] Here the lack of any ability to control the jockey in the riding of the horse, the need for the jockey to exercise his skill and judgement, the mode of payments, the lack of provision of any equipment, the absence of any obligation to work, the inability to delegate, and the transitory nature of the engagement all combine to point inexorably towards a contract for the provision of services and the relationship of independent contractor and not employee vis-à-vis the owners and trainers.

[86] In any case, even if I was wrong in that view, schedule 2, part 2 of the WCRA, which sets out those persons who are not workers, has the effect of excluding the plaintiff. It provides:

“2. A person who performs work under a contract of service as a professional sportsperson while—

(a) participating in a sporting or athletic activity as a contestant;

(b) training or preparing for participation in a sporting or athletic

activity as a contestant;…..”

[87] Mr Crow submitted that jockeys were not contestants as they did not compete with each other, rather the horses competed. Acceptance of that submission would require an unworldly ignorance of horse racing that few would possess. As in any sport success is measured in the world of jockeys by their ability to win, and win against one another. That is reflected in the awarding of premierships for the leading jockeys – the plaintiff was leading the Mackay premiership when he suffered the subject fall. As in any sport, to be successful, a jockey needs to be fit, strong and skilful. Patrick Smith, a journalist who writes extensively on matters of interest to the racing industry, recently reflected on the attributes of a successful jockey: “Jockeys are brave men and women, the best of whom can sense a race unfold strides before it does. A gap is taken, a race is won.”[53] The mind and heart of the jockey is as much a part of the contest as is the strength and speed of the horse.

[88] In my view it is plain that a jockey is a professional sportsperson and plain that jockeys are “participating in a sporting … activity as a contestant”.

[89] The view I have expressed is in accord with the decision in Hill v WorkCover Queensland,[54] where Moynihan J held that a professional jockey injured in the course of a training run came within paragraph 2(b) of schedule 2, part 2.

[90] Because the plaintiff is not a “worker” then the owners or trainers who engage the plaintiff are not within the definition of “employer”, as it is an essential requirement of that definition that the employer employ a “worker”, as appears from the definition in

s 30 of the WCRA which defines “employer” as follows:

“30 Who is an ‘employer’

(1) An ‘employer’ is a person who employs a worker and includes—

(a) a government entity that employs a worker; and

(b) a deceased employer’s legal personal representative.

(2) Also, a person mentioned in schedule 3, part 1 is an ‘employer’.

(3) However, a person mentioned in schedule 3, part 2 is not an

‘employer’.

(4) A reference to an employer of a worker who sustains an injury is a

reference to the employer out of whose employment, or in the course of whose employment, the injury arose.”

[91] I received no submission that an owner or trainer fell into any of the categories mentioned in part 1 of schedule 3 to the Act.

[92] Thus no employment relationship in the relevant sense existed between the plaintiff and another at the material time. Hence there were no employment activities in the relevant sense to make the necessary significant contribution to the subject fall that the decision in Newberry requires.

[93] Hence I conclude here that the injury suffered by the plaintiff did not “arise out of or in the course of employment” nor was any “employment” a significant contributor to the injury. It follows that the exclusion does not apply and the restrictions on damages imposed by the CLA do apply.

 Age  Injury  Dominant ISV  Uplift  Occupation Past Economic Loss  Future Loss of earning capacity  G v K
41(m) Broken nose, and lacerations to the face with soft tissue injury to the arms. The significant injury was to his neck. Two discs in the cervical spine were damaged. He has undergone surgery on two occasions involving discectomy and fusion from the C5 to C7 vertebrae.

$68,000.00

Item 86 –“severe cervical spine injury”

ISV 40

No

Multiple injuries, apart from the neck injury, are modest in their impact.. I assess an ISV of 40 as best reflecting the impact of this injury on the plaintiff

Jockey $273,000. $460,000.00

$1,200/week until retirement at 50 years, discounted by 30% for injuries, suspensions and contingencies.

$310,000.00

Adopted 50% of earnings from age of 50 years until pension retirement and contingencies.

$150,000.00

Nil in the past and agreed for the future at $24,660.00

Summary

[141] In summary I assess the damages as follows:

Pain, suffering and loss of amenities of life $68,000.00
Past economic loss $270,000.00
Interest on past economic loss $1,400.00
Future loss of earning capacity $460,000.00
Future Loss of Superannuation $13,500.00
Future paid assistance $24,660.00
Miscellaneous future expenses $43,400.00
Special damages $64,397.02
Interest on special damages $538.00
Total Damages $945,895.02

Orders

[142] There will be judgment for the plaintiff in the sum of $945,895.02.

[143] I will hear from counsel as to costs.

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