Cossens v Townsville Turf Club Incorporated & Ors [2000] QSC 59

1 IN THE SUPREME COURT OF QUEENSLAND REGISTRY: TOWNSVILLE NUMBER: S54 OF 1995 and CONSOLIDATED WITH REGISTRY: TOWNSVILLE NUMBER: S315 OF 1995 Plaintiff MICHAEL WAYNE COSSENS AND First Defendant TOWNSVILLE TURF CLUB INCORPORATED AND Second Defendant QUEENSLAND PRINCIPAL CLUB AND Third Defendant THE WORKERS' COMPENSATION BOARD OF QUEENSLAND DECISION - DOUGLAS J. DELIVERED THE 16th DAY OF MARCH 2000 1. The Plaintiff is 43 years of age having been born on 9 December 1956. He is a professional jockey by occupation. After leaving school in year 11 equivalent, and at the age of 18 years, he took up work in the racing industry. Initially he began shoeing and breaking in horses. Ultimately he obtained a farriers licence in Victoria and did some steeple chase riding as a jockey. 2. In 1976 at the age of 20 he came to Toowoomba where he obtained an open trainers licence. He continued his work as a farrier. In 1978 he went back to Victoria and continued his business as a farrier, breaking in and educating horses, horse dentistry, shoeing, and pursued his career as a jumps jockey. He eventually moved around Victoria to various places but settled in Queensland in Chinchilla in 1991. He rode there as a jockey until 8 June 1992. -- 1 of 13 -- 2 He received free accommodation and some food plus some $200-00 per week to ride track work. He was shoeing some 8 to 10 horses a week at $30-00 each. He also rode 4 to 5 horses per week at the races for the fee of $60-00 plus 5% of any stake money won by the horse. 3. In about June 1992 he moved to Townsville where he was employed as a jockey and farrier until he was injured in a race fall which occurred on 2 January 1993. He says that prior to his injury he rode some 10 horses per day at $5-00 per week in track work, and that he shoed on average 1 horse per day for a fee of $30-00. At the time, he says, he was getting about 5 rides per week for a losing fee of $60-00 plus the 5% of stakes money referred to earlier. He occasionally received a "sling" from a horse owner if it won. These could range from 5 to 10% of the prize money depending on the race and the price that the owner had backed the horse at in the betting ring. He rode at a weight of 52 kilos and was therefore able to ride at the minimum weight for any race meeting in Townsville at the time. 4. The Plaintiff rode track work at Ingham. He only visited Cluden Racecourse in Townsville for the purpose of riding in actual horse races conducted by the First Defendant, Townsville Turf Club Incorporated. The horse he rode on 2 January 1993 was Diamond Visitor. 5. On arrival at the course on 2 January 1993 the Plaintiff ascertained from the race book that a false rail was out on the course from the 1000 metre mark to the home turn. He also ascertained that at the home turn a cut-away rail was used which travelled at an angle from the false rail to the running rail in its true position. The evidence reveals that the cut-away rail angled towards the true position and that the lateral distances between the false rail and the true running rail was up to 9 metres but probably in the vicinity of 7 to 8 metres. -- 2 of 13 -- 3 6. As Diamond Visitor came to and around the turn into the home straight at Cluden it was in the lead. In relation to the incident the Plaintiff said:- "And soon as I come into the - the end of the cut away rail joining to the straight it was just like riding into a paddock. It was just an open - open view and - and the horse sort of startled a little bit and sort of I looked to because I had never ridden on this track - with a cut away rail. It was a different thing. And he reacted pretty severely and went into the running rail cause he'd been following it and he'd been trained and used to follow the running rail and as we drew past the cut-away rail he went severely into the right end of the running rail and I pulled him off the rail and pushed him along a bit further and by that time the field had caught up with me a little bit, I lost a bit of ground by the unbalancing of coming in and coming out of the rail, he got disunited and unbalanced and the horse on the outside of me drew a little bit closer and I went in to give him a - a cut with the whip on his shoulder with - just to push him on and I - before I could do it, I felt him drift away from me so I grabbed hold of the inside rein and by the time I grabbed the inside rein he was on the fence and he just went through it like it was a bit of tissue paper". 7. The Plaintiff described himself as a right-handed rider but using his left hand on this particular day. The incident he described is in the main supported by the video film of the race in particular the head-on shot both in actual time and in slow motion. The film shows that the horse was racing tracktably until the cut away rail occurred when it then moved in rather sharply towards the inside running rail. It collided once with that rail; then moved out to its left, and -- 3 of 13 -- 4 apparently brushed or collided with a horse on its outside before veering again into the running rail and going through it causing it to collapse. 8. The evidence of Mr Cooper, the Chief Stipendiary Steward at the time, reveals that from the point of the turn there were 2 panels of running rail which appeared to me to run in a straight direction before the cut away rail came into existence. On the evidence each of those panels was between 6 and 8 metres long. Therefore the horse had only a distance of travel of between 12 and 16 metres before the cut away rail began. 9. A Roger Kahler was called. He is an Engineer by profession and a Director of Inter Safe Group Proprietary Limited. He is also a very experienced horseman. He has not ridden in races as a jockey but his experience otherwise with horses is extensive. He gave evidence that he had watched the video film of the race on a number of occasions and he recorded the time from the time that the horse ridden by the Plaintiff rounded the corner to the time that that horse first bumped into the running rail. He estimated that time to be between 2 and half to 3 seconds. He estimated the angle at which the horse struck the rail on the first occasion to be approximately 15 degrees and on the second occasion to be between 3.6 and 7 degrees. He further said that in relation to the cut away rail, if the false running rail had been permitted to run further down the straight in a straight direction rather than cutting away almost right on the bend, that would have allowed the field to "basically align itself for the straight". He said that it would permit a horse to negotiate one transition at a time. He tried also to estimate the distance between the home turn and where the cut away began and came to the conclusion that the cut away occurred very much on the apex. I find that the cut away commenced just after the apex -- 4 of 13 -- 5 of the turn and immediately after a distance of no more than 16 metres of straight travel from the apex of the turn. 10. I accept Mr Kahler's opinion, particularly bearing in mind the evidence that a horse is trained to follow the inside running rail, and that the horse in a position where this cutaway rail was sited would naturally tend to follow a course of travel around the turn and towards the site of the permanent running rail. I also accept Mr Kahler's evidence that the cutaway rail, if utilised at all, ought to have been placed in a position further down the straight so as to give the horses and riders the chance to position themselves in the field before the rail cutaway to the right. 11. I do not accept Mr Kahler's evidence with respect to the purpose of a running rail on a racecourse. Mr Kahler tended to equate a running rail to devices such as crash rails which appear on modern highways. Those latter rails are designed to prevent motor vehicles, and the like, from going through them and to keep them as well as possible on the highway. The evidence before me reveals that the running rails used on racecourses are just that. They are a guide rail for horse and jockey in circumstances where horses are trained to follow such a rail during a race. I accept the evidence that they are designed to collapse in an endeavour to prevent injury to horse and rider as best that can be done and also to reduce the chance of a horse hitting such a rail, bouncing back into the face of an oncoming field and perhaps cause mayhem. 12. At the position where Diamond Visitor and the Plaintiff came to grief the running rail was fixed by a pin placed through a collar into the ground. The evidence revealed that at that point the pin extended some 300mm above the ground. The Plaintiff said, and I accept, that after the fall he was pinned to the rail by his silks being jagged by one of those pins. He said that he was -- 5 of 13 -- 6 therefore caught in a position where he was struck by the horses' flailing hooves. I accept his evidence that had he not been so restrained, he could have rolled free from the horse and perhaps avoided some or all of the injuries he ultimately suffered. I find that he was not for any length of time pinned to the ground by the horse. 13. The evidence before me from one Sims revealed that the fixing system of the running rail was designed so that the pin when hammered in, should be flush with the collar attached to the rail. No explanation was forthcoming from the First Defendant as to why it was not possible to afix the rail by that method on this occasion. There was a vague suggestion that the ground may have been too hard at that point. However, it is of note, but not proof of negligence, that the First Defendant has changed its method of fixing the rail by adopting a system whereby two spikes are hammered through the bottom of the running rail to a position where they are flush with the ground. In addition, Mr Sims' company has now designed a running rail incorporating the same type of pin used by the First Defendant on the subject occasion, but different in so far as the pin is now enclosed by a sleeve which can be pushed down over the pin and collar once it is in place in the ground. 14. The Plaintiff gave evidence that prior to the race in which Diamond Visitor fell he had not ridden at Cluden on that day. He said that he had not ridden at Cluden on an occasion when the cutaway rail was in place. He further said that he had seen on video the previous race where the cutaway rail was used but did not gain anything useful as to the nature of the cutaway rail from that film. I accept what he said in those respects. He therefore decided to ask one Bethel, a steward employed by the Second Defendant for permission to view the cutaway rail whilst doing the horses' preliminaries. He said he asked -- 6 of 13 -- 7 for this permission because normally during preliminaries, horses are not permitted to go as far up the straight as to enable them to have a clear view of a cutaway rail in the position where it was put. He says that Bethel denied him this permission. Bethel gave evidence before me denying that conversation. In the event, I accept the Plaintiff's evidence that he did ask Bethel for permission to view the cutaway rail at a close distance and that this permission was refused. It seems common ground that no instruction was given by the stewards to the jockeys, at least in the Plaintiff's presence, as to the positioning of the cutaway rail, particularly as to its proximity to the home turn. 15. The Statement of Claim pleads the Plaintiff's cause of action on a number of bases. It is said that he was either an employee of the First and/or Second Defendant, or that he was contracted to the First and/or Second Defendant to ride horses at the First Defendant's racecourse for a fee, or that he was owed the duties owed by an occupier of land to a person on that land in the particular circumstances in which he was there. 16. In respect to the first two pleas, I accept the evidence of Mr Martin, the legal adviser to the Second Defendant. In my view, the Plaintiff was not an employee of either the First or the Second Defendants nor was he in any contractual relationship with either of them. The First Defendant was, however, the occupier of Cluden Racecourse and owed a duty of care to the Plaintiff subject to there being a sufficient proximate relationship between the parties. See Hackshaw -v- Shaw (1984) 155 CLR 614 and Australian Safeway Stores Pty Ltd -v- Zaluzna (1987) 162 CLR 479. There can be no doubt that there existed sufficient proximity between the First Defendant and the Plaintiff because the Plaintiff was on the First Defendant's racecourse to ride horses in -- 7 of 13 -- 8 races conducted by the First Defendant under the auspices of the Second Defendant. 17. In my view the First Defendant was negligent and in breach of its duty to the Plaintiff in placing the cutaway rail so close to the point of the home turn so as not to allow horse and rider sufficient distance in a straight line to balance up and take control of their horses before encountering the cutaway rail. The First Defendant was, in my view, also negligent and in breach of his duty owed to the Plaintiff in positioning the pin fixing the running rail to the ground in such a position that it did not stay flush with the collar of the running rail but in fact extended some 300mm above the ground. Therefore it was dangerous and did jag the Plaintiff's silks. 18. In finding that the First Defendant was negligent and in breach of duty in the positioning of the running rail I am not implying that a cutaway rail should not be used in appropriate circumstances and when it is safe so to do . 19. As a result of the accident, the Plaintiff sustained the following injuries. (a) fractured ribs right 8, 9 and 10 on the right side; (b) fracture of the right pedicle of T12 vertebrae; (c) fracture of the spinous processes of T11 and 12; (d) fracture of the right transverse processes of L3 and L4; (e) pneumothorax with sub-cutaneous emphysema and some pulmonary contusion; (f) a major right renal artery branch vessel avulsion causing hyperfusion to the lower third of the right kidney; and (g) post traumatic stress disorder. 20. He spent until 13 January in the Townsville General Hospital and from there went to the Ingham Hospital where he was discharged on 15 January 1993. -- 8 of 13 -- 9 He spent a further period of the Townsville General Hospital between 20 and 21 January 1993. He says he underwent the pain and distress referred to in Exhibit 1, being his Quantum Statement, particularly at paragraphs 39 to 45. 21. His marriage failed, probably because of the accident, in October 1993. He and his wife had married after a long relationship in March 1993. 22. In May 1993 he commenced a rehabilitation program and began riding one of his wife's quiet horses. He gradually returned to shoeing by doing half of one horse a day, but developed severe back pain from bending and stooping. He had prior to the fall suffered a serious knee injury whilst shoeing a horse when it kicked him in the right knee. He underwent surgery where pins were inserted. That incident occurred in September 1986. The pins were removed in 1989 but he has had continuing pain in his right knee ever since. Prior to the current incident he says he was able to compensate for that knee disability by the way in which he bent down. 23. The Plaintiff in fact re-commenced riding as a professional jockey in June 1994 but took pain relief prior to and after racing. He rode some winners. He returned, he says, because it was the only work that he had ever known despite the fact that he experienced pain levels and also experienced a constant dull ache in the central lower back to the right side and an occasional ache down the back of his right leg to the knee. He built up to three rides per race meeting and once rode five. He then cut riding back to every fortnight to give him time to recover between races. After approximately six months the pain, he says, became too extreme and his reliance on pain killers posed a dangerous combination on the track. He became concerned for the safety of other riders as well as himself. He last rode in races in December 1994. -- 9 of 13 -- 10 24. In February 1995 he obtained a job at the Abergowrie College which involved him teaching students to ride. That also gave him discomfort in his back but not as severe as when he was race riding. 25. He left the college and returned to racetrack work, riding and shoeing, riding some two horses trackwork each morning. However he would have to go home and lie down for some time to gain relief from the pain. He gained assistance from his son in feeding the horses and cleaning out the stalls. 26. In February 1996, he had a fall whilst riding track work when the horse he was riding shied. He says that he did not have sufficient flexibility in his back to enable him to pull the horse back which he would have had in normal circumstances but for this accident. 27. On 17 March 1997 he attempted suicide by way of a drug overdose and was admitted to the Ingham Hospital. He has had treatment for a major depression. 28. He found that the pain in his back is particularly severe at times after shoeing and riding, and describes the pain as if his bones are being pushed through the muscles in his back. His pain level tends to increase whenever he is active but even whilst resting he experiences a constant dull throb. He says he experiences difficulty and an increase in pain when carrying out any activity which requires reaching over head, reaching out front, and standing and sitting for any extended periods of time. He has had several cortisone injections into his back which provided temporary relief. He has had only one of those since finally ceasing riding. He ceased shoeing horses in late 1997 and ceased riding trackwork in 1998. 29. I accept generally what the Plaintiff said in relation to his complaints of pain and disability. However, the Defendant argued that by August 1993, relying upon the evidence of Dr Douglas, the Plaintiff was employable and should -- 10 of 13 -- 11 have explored alternative areas of employment. It is noteworthy however, that Dr Douglas did not suggest that he could go back to his former occupation as a jockey or as a farrier. 30. The Plaintiff has no training in clerical work and has only ever done work associated with racehorses. I do not accept the Defendant's argument that he was capable of obtaining employment by August 1993. However, the evidence of Dr Douglas does allow me to discount any damages awarded to him for economic loss on the basis that there may have been some employment available to him outside of being a farrier or a jockey after August 1993. I consider this prospect to be somewhat slim. 31. Another aspect of the Defendant's case concerned the cause of the injury to the Plaintiff's thoracic spine. Dr Douglas was of the opinion that that injury would more likely have been caused by efluxion rather than a direct hit by a horse's hoof to the thoracic spine. I am unable to conclude on the evidence how in fact the injury to the thoracic spine occurred but the nature of the fall, as observed on the film, depicts the Plaintiff falling from the horse at an awkward angle which may well have caused an efluxion type injury to the thoracic spine. 32. The Plaintiff bases his claim for economic loss on the basis that he would have earned some $650 per week between accident and trial and the same figure at the present time. However there are no records which support such a figure. The Plaintiff has not, for years relevant to this action, filed any tax returns. His financial records, such as they are, do not disclose a level of earnings anything like that which he claims. I do not accept his evidence as to his level of income particularly when there are no documents to support his assertions. One thing is clear though, and that is that he was working constantly in Ingham and in South East Queensland for some years prior to the accident. It is also clear -- 11 of 13 -- 12 that he has paid no tax on those earnings. On the evidence before me and in particular the evidence of the earnings of Mr Kliese, I am able to make an estimate of the Plaintiff's income for the purposes of economic loss. Therefore allowing for the fact that Kliese is and was a superior rider to the Plaintiff, and allowing for a level of income as shown by the Plaintiff's own riding record together with something for his business as a farrier, I estimate the Plaintiff had and has the capacity to earn in the vicinity of $300 per week net, had the accident not occurred. This figure should be reduced by some 20% for contingencies particularly bearing in mind the nature of the occupation carried out by the Plaintiff. The evidence also reveals that the Plaintiff was unlikely to continue as a jockey beyond the age of 50 years and by then would be reduced to his occupation as a farrier with the attendant disabilities from his 1996 accident. 33. I do not accept the Plaintiff's evidence as to the level of domestic assistance provided to him since the accident and for the future. In this case one can only make an estimate based upon the evidence, and a conservative one at that. 34. I assess the Plaintiff's damages as follows: 1. Past pain and suffering and loss of amenities of life $20,000,00 2. Future pain and suffering and loss of amenities of life $20,000.00 3. Interest on past general damages: $20,000,00 minus $14,262.00 (WCB) multiplied by 2% for seven years $5,003.32 4. Past economic loss - $300 per week multiplied by 373 weeks, less tax = $89,520 minus earned income $19,375.00 $70,145.00 5. Interest on past economic loss: $92,525.00 minus $16,133.00 (WCB) minus $30,491(DSS) multiplied by 6% multiplied by seven years $19,278.42 -- 12 of 13 -- 13 6. Future economic loss/loss of income earning capacity $300 per week (multiplied by seven years) = $92,820 less 20% discount (as above) $74,256.00 7. Future loss on same basis between age 50 and age 60 at say $100.00 per week as a farrier. $29,340.00 8. Past unpaid domestic assistance including interest $500.00 9. Past paid domestic assistance - $5 per week by seven years $1,820.00 10. 9Medical expenses paid by Workers Compensation Board $3,738.00 11. Rehabilitation expenses owed to CRS $2,828.00 12. Medical expenses owed to HIC $1,760.00 13. Travelling expenses incurred by Plaintiff attending Medical treatment including interest estimated $1,000.00 14. Medical and other expenses paid by Plaintiff including interest: (i) Pharmaceutical $515.00 (ii) Orthotics $320.00 $835.00 15. Future pharmaceuticals - $26 per week multiplied by 40 years (918) multiplied by 75% $17,901.00 16. Future travelling to medical treatment and pharmacist $5 per week multiplied by 40 years (918) multiplied by 75% $3,443.00 17. Future medical treatments $7.50 per week multiplied by 40 years (918) multiplied by 75% $1,164.00 18. Future domestic assistance including interest $4,000.00 19. Future orthotics - $2 per week (40 years) (918) Multiplied by 75% $1,377.00 20. Fox -v- Wood component $2,536.00 Total damages $280,924.74 Less refund to WCB $34,133.00 Total $246,791.74 I therefore give judgment for the Plaintiff against the Defendant by Election for $246,831.74 with costs including reserved costs, if any, to be assessed. -- 13 of 13 --