1. No Powered Vehicle Accidents - Cycling and Jockey Accidents
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No Powered Vehicle Accidents - Cycling and Jockey Accidents
Angus Castley
Bradford Legal

2. ACCIDENTS INVOLVING JOCKEYS
Jockeys and Statutory Compensation
Common Law Claims for Jockeys
Accidents during track work
Accidents during races

3. ACCIDENTS INVOLVING JOCKEYS
Jockeys and the Statutory Compensation System
Workers’ Compensation and Injury Management Act 1981 (WA)
s.5 – definition of “worker”
s.11A – jockey is a “worker”

4. ACCIDENTS INVOLVING JOCKEYS
The Historical Perspective
Prior to 14 December 2012, all jockeys when injured deemed employed by Racing and Wagering WA
Significant limitation on weekly compensation entitlements creating discrimination when compared with other workers
“Earnings” defined as those prescribed for a stable foreman under the Horse Training Industry Award 1976
Particularly unfair when regard is had to the extremely dangerous nature of the work of a jockey

5. ACCIDENTS INVOLVING JOCKEYS
Maximum weekly payment under Horse Training Industry Award prior to 14 December 2012 was $ for a stable foreman
At the same time, maximum amount (“capped amount”) for weekly payments for other workers was $
Since 14 December 2012, no more discrimination against jockeys in respect of weekly compensation payments as specific reference to “earnings” removed from s.11A.

6. ACCIDENTS INVOLVING JOCKEYS
Present s.11A specifies that circumstances of injury determines employer for purposes of compensation under the Act.
Prior to 14 December 2012 Racing and Wagering WA deemed to be employer in all circumstances.
Currently Racing and Wagering WA deemed to be employer if jockey is injured whilst riding in races or performing track work at a “licensed facility” (s11A(3a));
When a jockey is injured whilst riding for a licensed trainer but not in a race managed by a “registered club” or when the riding activity is not taking place at a “licensed facility” that licensed trainer is deemed to be the employer (s11A(3b)).

7. ACCIDENTS INVOLVING JOCKEYS
COMMON LAW CLAIMS INVOLVING JOCKEYS
Restriction under the Act with respect to suing employer
Deemed employer limits options for jockeys

8. ACCIDENTS INVOLVING JOCKEYS
TRACK WORK ACCIDENTS
SESTICH v VAN HEEMST [2006] WADC 23
Plaintiff riding track work at Ascot Racecourse
Horse stumbled and veered towards outside rail and struck rail with right shoulder
Plaintiff’s ankle crushed between horse and horizontal rail
Plaintiff then thrown from horse over outer rail striking upright posts and suffering right arm injury

9. ACCIDENTS INVOLVING JOCKEYS
Sestich v Van Heemst
Plaintiff alleged negligence on part of Defendant by:
Allowing solid steel running rail and posts to remain at edges of “big sand track” when unsafe to do so;
Failing to install modern collapsible running rails and posts around the “big sand track” to reduce risk of injury from inevitable riding mishaps;
Failing to reduce risk of injury associated with contacting rigid running rails given knowledge of previous injuries.

10. ACCIDENTS INVOLVING JOCKEYS
Sestich v Van Heemst
Evidence that at other tracks around Australia and on main race track at Ascot there was an aluminium running rail with upright posts on the outside and that this was common since 2000;
Aluminium running rail configuration reduced danger of jockey suffering injury from contacting rail.

11. ACCIDENTS INVOLVING JOCKEYS
Sestich v Van Heemst
Defendant’s case was that in the accident circumstances there was no action that could reasonably have been taken by the defendant to prevent the occurrence of the accident;
The damage was inevitable and not caused by want of care on part of defendant;
The risk would have remained the same regardless of the type of railing in place.
Plaintiff voluntarily assumed the risk.

12. ACCIDENTS INVOLVING JOCKEYS
Sestich v Van Heemst
Trial Judge found :
Defendant knew there was potential for jockey to be seriously injured when coming into contact with the pipe railing. Was there a practicable and safer alternative?;
Risk of accident was different between race riding and track work;
Steriline (aluminium system) was not a complete answer but was substantially safer than the rigid tubular metal system.

13. ACCIDENTS INVOLVING JOCKEYS
Sestich v Van Heemst
Defendant owed plaintiff a duty of care to avoid exposing him to the risk of injury whilst using the training track;
Defendant breached duty of care by failing to install a flexible rail system;
Defendant’s breach caused (by failing to prevent) the plaintiff’s leg fracture but not the arm injury;
Plaintiff did not voluntarily assume the risk as “he was in no position to take it or leave it.”
No exclusion of liability for negligence under ultra vires racing regulation.

14. ACCIDENTS INVOLVING JOCKEYS
ACCIDENTS INVOLVING JOCKEYS DURING RACES Chesterman J in Kliese v Pelling [1998] QSC 112 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.”

15. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell [2011] TASSC 19
Accident occurred during race.
Defendant drew outside barrier and soon after start of race tried to move across track towards the rail;
Safely crossed in front of 2 horses but as he kept crossing he forced horse inside him to move inwards resulting in clipping of heels, horses falling and plaintiff to be thrown from his mount and suffer career ending injuries.

16. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell Australian Rules of Racing “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.”

17. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell
Plaintiff alleged that defendant crossed in front of other horse when he knew he was not 2 lengths clear;
Defendant failed to heed verbal warnings from other jockeys, forced another horse inwards and caused the plaintiff’s accident.

18. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell
Defendant’s case :
As he started to cross he looked and thought he was 2 lengths clear
He had made an error of judgment which fell short of negligence as he had taken reasonable care and it was the kind of error jockeys frequently make even when taking care.

19. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell
Trial judge’s factual findings :
When defendant looked he did not look properly and knew he was only 1½ lengths clear
He either ignored or didn’t register the warning calls of other jockeys because he was not paying attention
Snell’s shifting in was a breach of the 2 lengths policy and was of a kind that was particularly rare and dangerous as the capacity of other riders to avoid the danger was minimal
There was no justification for such a poor decision on the part of the defendant as it was early in the race and there was ample time to get to the rail before he reached the first turn.

20. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell
Was the defendant negligent?
Defendant owed a duty of care to other jockeys to take reasonable care to avoid creating foreseeable risk of injury. By shifting inwards the defendant exposed the plaintiff to a “significant” and therefore foreseeable risk of harm.
In order to determine the reasonable response to the risk regard was had to Wyong Shire Council v Shirt (1980) 146 CLR 40 and the Civil Liability Act (Tas).

21. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell Was the defendant negligent? 3. The defendant breached his duty of care by acting recklessly in crossing over at the time that he did and by doing so 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.

22. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell Was there 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.”

23. ACCIDENTS INVOLVING JOCKEYS
Dodge v Snell
Effect of Civil Liability Act provisions
Consideration of whether there was an “obvious risk” under s. 15 CLA(Tas) – “ a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.”
Trial judge found risk was obvious and that plaintiff was therefore deemed to be aware of the risk but that defence of volenti failed because the plaintiff did not freely and voluntarily accept the risk.
Also plaintiff not engaged in a “recreational activity” (s.20 CLA(Tas)) as he was engaged in his occupation at the time.

24. ACCIDENTS INVOLVING CYCLISTS
Increase in prevalence of cyclists on roads and pathways creating issues including :
Road rage between cyclists and motorists
Debate around whether cyclists should be required to buy registration
The consideration of providing safe cycling areas on local roads to the exclusion of motorists
The establishment and enforcement of speed limits on cycling paths.

25. ACCIDENTS INVOLVING CYCLISTS
ACCIDENTS ON FOOTPATHS OR BIKE PATHS
Prohibition on people over the age of 12 riding on footpaths – reg 216 Road Traffic Code
Where there is a bicycle lane provided on a carriageway which is in a reasonable condition a rider is required to use that portion of the carriageway and no other – reg 213 Road Traffic Code

26. ACCIDENTS INVOLVING CYCLISTS
Marsden v Ydalia Holdings (WA) Pty Ltd [2004] WADC 190 FACTS Plaintiff riding on DUP near old Swan Brewery Defendant carrying out excavation and paving on DUP and had placed mesh barrier and clear signage – “CAUTION! CYCLISTS DISMOUNT AND WALK” Plaintiff ignored sign, road onto soft sand and tried to dismount but could not get his feet out of the stirrups and toppled over edge of river barrier, suffering injury.

27. ACCIDENTS INVOLVING CYCLISTS

28. ACCIDENTS INVOLVING CYCLISTS
Marsden v Ydalia Holdings (WA) Pty Ltd [2004] WADC 190
Trial judge found :
Plaintiff saw the signs and failed to dismount when safe, intending to ignore the signs;
Warning was appropriate;
Danger of soft sand and exposed river wall was obvious and therefore risk to cyclist was remote
Plaintiff’s claim dismissed.

29. ACCIDENTS INVOLVING CYCLISTS
Hulme v City of Rockingham [2007] WADC 100
Cyclist riding on Waikiki foreshore and encountered cracked and “tented” paving creating a hazard. Tried to avoid and veered towards raised grass edge of path.
Defendant council negligent due to knowledge of extensive use of footpath, proximity to regularly mowed grass area and therefore likelihood of damage from vehicles. Defendant failed to inspect and repair at minimal cost.
Plaintiff’s damages reduced by 75% for failing to keep a proper lookout.

30. ACCIDENTS INVOLVING CYCLISTS
POTENTIALLY RELEVANT CIVIL LIABILITY ACT PROVISIONS s.5F – meaning of “obvious risk” s.5H – no liability for harm from obvious risk of dangerous recreational activities s.5I – no liability for recreational activity where risk warning

31. ACCIDENTS INVOLVING CYCLISTS
ACCIDENTS BETWEEN CYCLISTS AND MOTOR VEHICLES
General law of negligence applies with mutual duty of care owed.
Regulation 213 – Riding in Bicycle Lane, states:
“Wherever a bicycle lane is provided as part of a carriageway, and is in a reasonable condition for use, a rider of a bicycle shall use that portion of a carriageway and no other.”

32. ACCIDENTS INVOLVING CYCLISTS
Regulations 130(1) and (2) state: “(1) The rider of a motorcycle, moped, power–assisted pedal cycle or bicycle, shall not ride on a carriageway that is not a multi–laned carriageway alongside more than one other rider, unless the rider is overtaking the other riders. (2) The rider of a motorcycle, moped, power–assisted pedal cycle or bicycle, shall not ride in a marked lane on a carriageway alongside more than one other rider, unless the rider is overtaking the other riders.”

33. ACCIDENTS INVOLVING CYCLISTS

34. ACCIDENTS INVOLVING CYCLISTS
ACCIDENTS BETWEEN CYCLISTS
Becoming more common
Cyclists often insured for claims against them in negligence through their home and contents insurance liability provisions.
Reg 216 of the Code forbids riders from riding abreast of one another
Reg 217 requires cyclists to keep left on a path

35. ACCIDENTS INVOLVING CYCLISTS

36. ACCIDENTS INVOLVING CYCLISTS
ACCIDENTS BETWEEN CYCLISTS AND PEDESTRIANS Reg 216(2) requires a cyclist to give way to a pedestrian Reg 215 forbids a cyclist from riding on a part of a separated footpath (DUP) designated for pedestrians only