Law BFA 506Assignment 1

Tony Park

Dodge v Snell [2011] TASSC 19 Background

28th Jan 2007 Plaintiff and Defendant were jockeys in

Moorilla Stakes at Elwick Racecourse. Defendant was on the outside position,

passed 2 horses and attempted to pass 5 others.

In that attempt bunched those horses to the barrier

Dodge v Snell [2011] TASSC 19 Background

This pushed another horse into another, who then stumbled and caused the plaintiffs horse to stumble and fall.

The horse died. The plaintiff fell and sustained injuries

that brought his professional career as a jockey to end.

Dodge v Snell [2011] TASSC 19 We will use the pIRAC system

Parties Issue Rule Analysis / Application Conclusion

PeopleWho was involved

People Plaintiff

Kevin John DodgePast Jockey, now invalid.

DefendantSimon Snell

Jockey

Issues in lawWhat does the plaintiff want

Issues in Law The plaintiff claims that the defendant

was negligent in his riding of his horse

Issues in Law Rode his mount inwards when

insufficiently clear of Colonel Parker and when he knew or reasonably should

have known that in doing so he was exposing other horses and riders to a risk of injury.

Issues in Law

Mr Snell (the defendant) rode his mount towards the rail when he was insufficiently clear of the horses on the inside, causing a cramping of these horses and the fall of Mr Dodge (the plaintiff) was caused by this.

Mr Dodge is suing for damages incurred

Issues in Law - Damages Loss earning capacity $ 470,898 Domestic and personal care $ 169,119 General Damages $ 80,000 Other

Total $ 772,895.76

RuleWhat legal rules need to be looked at.

Rule Australian Racing Rules1. AR 135 All jockeys will try to win the race2. AR 136 If a horse ;

1. Crosses another horse to interfere with it or any other horse

2. Jostles or interferes – unless caused by some other horse

3. Such horse will be disqualified from the race

RuleAustralian Racing Rules

AR 135 All jockeys will try to win the race

AR 136 Horse will be disqualified from the race

RuleAustralian Racing Rules

Defendant found guilty of careless riding

Only a guide to Court assessment of negligence

Rule – other The rules we are investigating are

Negligence and Duty of Care by the defendant to the Plaintiff.

RuleRules that need to be investigated to prove negligence ; Duty of Care

Breach of duty

Harm caused by breach

Rule – Civil Liability Act (2002) TasRules that need to be investigated for a defence are ;

Could it have been foreseen by Plaintiff Was the response reasonable Did Plaintiff volunteer the risk Was the risk obvious

Rule – Civil Liability Act (2002) TasMajor defence of Defendant

Was that the activity was a recreation activity.

Need to look at Legislation for definition of recreation – and if not clear, to the discussion in Parliament deliberations.

Analysis / ApplicationLets look at the relevant rule and apply to facts of the case

Analysis - Negligence The Racing Enquiry found that the

defendant did not allow the 2 lengths of space before he moved.

Because of that he was found guilty of dangerous riding

Analysis - Negligence Defendant acknowledged that he did

have duty of care.

Analysis - Negligence Has Defendant breached Duty of

Care Could have delayed moving over No net benefit other than trying to win Exposed others to harm (CL Act s11(2)(d) Exposed plaintiff to unnecessary risk

Rootes v Shelton at 392 Did breach duty of care

Analysis - Negligence Could it have been foreseen

“Plaintiff does not need to prove that the precise manner in which his injuries were sustained were foreseeable : Chapman V Hearse (1961) 106 CLR”

Analysis - Negligence Reasonable response

Chesterman J Kleise V Pelling (unreported,

QSC, 4 June 1998) if rider not take reasonable care, then negligent.

Reasonable response level or likely hood that risk would occur Wyong V Shirt (1980) 146 CLR 40 and difficulty wether you could avoid it.

Analysis - Negligence Reasonable response

Need to look at all circumstances that Jockeys are engaged – Rootes v Shelton (1967) 116 CLR at 389

Jockeys not expose others to additional risk Taylor J in Rootes v Shelton at 392

Racing Rule 136 (1) leave 2 lengths Chesterman J Kleise V Pelling (unreported,

QSC, 4 June 1998) if rider not take reasonable care, then negligent.

Analysis - Negligence Causation

Defendant agreed his conduct caused the fall

Plaintiff proved that the action of negligence by the defendant caused the fall

Breach of duty was a necessary element of the occurrence of harm

Defendant negligence caused Plaintiffs injuries.

Analysis Voluntary assumption of Risk

Volenti non fit injuria Did plaintiff understand and agree to incur

the risk. Osborne v London and North Western Railway Company (1888) 21 QBD

Need 3 elements by Plaintiff to accept risk McClellan CJ in Carey v Lake Macquarie Council [2007] NSWCA 4 at 85 Perceived existence of danger Appreciated it Freely agreed to accept the risk

Analysis Voluntary assumption of Risk

Knowledge of the risk – to be pushed over Consent to the risk – no Consent to the negligence of moving at 1

¼ lengths rather than the 2 lengths by regulation.

No

Analysis Was the risk obvious

If obvious taken as acceptance by plaintiff Under CL Act

Obvious to reasonable person Common Knowledge May not be prominent But not obvious just because a warning.

Analysis Was the risk obvious

Start at what eventuated, identify and defined with precision ; Cary at par [91

Then see if a notional person comprehends what occurred :Fallas v Mourlas (supra), per Tobias JA at (97) who has the knowledge and experience of the plaintiff Great Lakes Council v Dederer [2006] NSWCA 101.

Comprehend 2 lengths – not 1 ¼ lengths. Could not reduce the risk voluntarily

Analysis Was the risk obvious

Comprehend 2 lengths – not 1 ¼ lengths. Could not reduce the risk voluntarily So could not agree to the risk that

eventuated

The defence of volenti fails

Analysis - Negligence Areas of negligence would normally be

addressed by the Civil Liability Act, (CL Act)

Under that ACT there is a defence of “dangerous recreation activities”

There was a foreseeable risk of harm The risk was insignificant A reasonable person would take precautions

to avoid the risk

Analysis - Negligence The question that the Justice brought up

was this a valid defence – was it a recreational activity.

“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.

The exclusion in s20 does not apply.

ConclusionAfter consideration of the legal rules and how they are attributed in a legal way to the facts.

Conclusion The statutory immunity pursuant to the

CL Act s20, replied upon by the defendant does not apply as the plaintiff was not involved in a recreational activity.

The defendant is liable for his breach of duty.

Total claim $ 772,895.76

QuestionsA review of what may have been learnt

Question 1From the information, with the case won by the plaintiff, could the owner of the horse also sue the defendant for loss of earnings of the horse that had died.

Question 2Did the defendant have a duty of care to the horse that died that could have been taken by Animal Organisations like RSPCA.

Question 3Did the Stewards enquiry ,have a direct effect on the court case – did the Judge have to take decisions of this enquiry into account.

Question 4Should the stewards enquiry relook at their decision, to see if 4 weeks suspension was inadequate, to such a now proven serious action by the plaintiff.

Question 5Are the lines blurred between recreation activities and professional ones ?

What about AFL, Olympics

Law BFA 506Assignment 1

Tony ParkAvailable at www.businessgardener.com.au/unilaw1.pdf.htm