Liability for Horse Race Injury
In a trial to establish liability for injuries incurred in a horse race where the claimant sustained T4 AIS complete paraplegia rendering him wheelchair-bound for the rest of his life, the issue was whether what happened was just a “racing incident” with tragic consequences or whether the actions of the defendant were such that he was liable for the injuries sustained: Frederik Tylicki v Graham Gibbons [2021] EWHC 3470 (QB) HHJ Karen Walden-Smith
Both claimant and defendant were experienced professional flat race jockeys when a collision occurred between the claimant’s mount, Nellie Deen, and the defendant’s mount, Madame Butterfly, in a flat race at Kempton all-weather course in 2016.
The threshold for liability was high and mere error of judgment or lapse of skill was not sufficient, taken in the context of this highly competitive and inherently risky sport.
In effect, while recklessness had been expressly stated not to be the test for a finding of negligence, the evidential burden was such that it required a reckless disregard for the safety of others.
Placing the threshold at that high level, of course, regard was had to all the circumstances of the sport, the inherent dangers and the high degree of competitiveness with a requirement on jockeys to win or be best placed.
The fact that the threshold was high did not mean, however, that no duty of care was owed between jockeys.
The collision occurred at approximately the four-furlong post very much at the mid-point of the race. Three horses fell and another threw its rider.
Two of the jockeys who fell were treated on the track and transported on body boards to hospital, one with a broken nose and the claimant with the serious injuries described.
Heavy reliance was placed by the defendant upon a Stewards Enquiry lasting no more than a few minutes where any interference was found to be accidental. None of the jockeys who fell or were brought down were able to give evidence.
The learned judge found that the Stewards ought to have adjourned the Enquiry; they simply did not have sufficient evidence or time to come to a conclusion in the immediate aftermath of the incident.
The only person who asked questions was the stipendiary Steward and, for entirely understandable reasons, there was no detailed analysis of the oral accounts and the video footage was played only once in the presence of the witnesses.
Although the Stewards were highly skilled and experienced, it would be wrong to give their finding a greater weight than it deserved, particularly given the significant limitations with respect to the evidence they received. Their finding was neither binding nor determinative.
Expert evidence about horse racing was given on behalf of the claimant by Ryan Moore, widely recognised as a hugely successful professional flat-racing jockey both in the United Kingdom and abroad, having ridden tens of thousands of races, winning more than 2,500 of them including, on multiple occasions, the five classic races in the United Kingdom and numerous major races abroad.
He gave very clear evidence that jockeys were aware of what was going on around them. His opinion was that the defendant would have been aware of the presence of Nellie Dean to his inside from the time Nellie Dean occupied the space between Madame Butterfly and the rail.
Ryan Moore said that the defendant did not need to do much more than lightly tighten the right-hand rein in order to persuade Madame Butterfly to go round the bend but “instead he visibly exerts considerable tension on the right rein, and in my view he would only have done that in order to encourage MB across ND’s racing line.
“If he believed that there was no horse to his inside he would not have needed to pull as hard as he did on the right-hand rein and he would not have needed to stand up in the stirrups as he did, nor to ask MB to accelerate as he did. I believe he is reacting to the fact that ND is coming up the inner and he wishes to close the gap, which he is not entitled to do as it is dangerous.”
In the court’s judgment the defendant had a reckless disregard for the claimant’s safety. He knew, or at the very least, ought to have known, that the claimant was inside on the rail and had moved up to within a half-length of Madame Butterfly. He exerted real pressure on the right hand rein in order to bring her across Nellie Deen’s racing line and did not stop bringing her in close to the rail even after a first collision.
Risk of injury was part of a professional jockey’s life and, while more unusual in flat racing, falls from horses were an inevitable concomitant of horse racing. Interference between horses and findings of carelessness were regular, but in this case liability was established.
The actions of the defendant riding Madame Butterfly colliding with Nellie Deen ridden by the claimant were not mere lapses of concentration or inattentiveness; they were undertaken in reckless disregard for the safety of the claimant.
In Caldwell[1] Judge LJ (as he then was) said: “In an action for damages by one participant in a sporting contest against another participant in the same game or event, the issue of negligence cannot be resolved in a vacuum. It is fact specific.”
In the present case the judge stressed that the threshold for liability for negligence was a high one and had been made out in this case on its own particular facts.
The finding did not set a precedent either within horse-racing or in sport generally.
[1] Peter Harvey Caldwell v (1) Adrian Maguire and (2) Mick Fitzgerald [2001] EWCA Civ 1054