Kerr v Ipswich Turf Club Inc[1999] QCA 391

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 12009 of 1998

Brisbane

[Kerr v Ipswich Turf Club]

BETWEEN:

MICHAEL KEVIN KERR

(Plaintiff) Appellant

AND:

IPSWICH TURF CLUB INC

(Defendant) Respondent

McMurdo P

Thomas JA

Chesterman J

Judgment delivered 17 September 1999.

Judgment of the Court.

APPEAL DISMISSED WITH COSTS.

1. THE COURT:  The appellant was injured in a fall during a horse race at Bundamba on 4 September 1991.  He sued the respondent Turf Club for damages for negligence, principally in relation to an alleged failure to keep the track in a reasonably safe condition for racing.

2. In the Supreme Court the learned trial judge found that the fall was not caused by the condition of the track and that the respondent was not liable to the appellant.  The action was dismissed.  The present appeal is against that dismissal and also against the quantum of the damages which his Honour assessed in any event.

3. It was the appellant's case at trial that the respondent race club was negligent in allowing the track to deteriorate.  On the occasion in question a horse ("Sun Brother") fell in front of the horse being ridden by the appellant ("Nation").  Nation also fell and both jockeys were thrown to the track.  The allegation of the appellant was that Sun Brother placed its hoof in a hole or alternatively lost its footing by reason of the uneven nature of the surface of the track.

4. The learned trial judge considered that the appellant's allegation was not made out and that the area where the fall occurred was safe for racing.  His Honour held that the Turf Club was neither negligent nor in breach of duty to the appellant.  The learned trial judge also accepted the contention on behalf of the Turf Club that Sun Brother fell as a result of a weakness not previously apparent in its off-fore fetlock.

5. The appeal is based upon a challenge to the above factual findings.

6. Counsel for the appellant, whilst conceding the difficulty of mounting such a challenge,^[1] submitted that his Honour's findings were based upon the evidence of an expert witness, Dr Pascoe, and that appellate intervention was more readily available in relation to findings so based.  As a general statement, different views might be held on this.^[2] In any event, in order to set aside a finding of fact based wholly or partly on the evidence of an expert witness, it is still necessary to show some error or omission of the kinds recognised in the above cases. 

7. In the present case the learned trial judge had the benefit of a number of video tapes of the fall taken from different directions.  Three expert veterinary witnesses were called, each of whom expressed certain opinions based upon the videos.  The subject upon which they were qualified to express expert opinion would seem to have been equine movements, and the issue to which examination and cross-examination seems to have been primarily addressed was whether one could tell whether Sun Brother initially fell because of some irregularity in the track, or because of a spontaneous fracture in its right foreleg or for some other reason.  The video tapes show that the track was dusty at the relevant area but are not sufficiently clear to show whether there were or were not specific defects such as those alleged.  Other more specific evidence was called as to the state of the track.  Dr Pascoe, whose evidence was accepted by the learned trial judge, formed the opinion that Sun Brother fell because of a spontaneous fracture.  On his analysis of the video Sun Brother took "a shorter step on the right fore before it threw its weight onto the left fore limb and some dirt was thrown out; that it then threw its weight onto its right forelimb, started to crumble, and went over".  The contrary view, which was taken by Dr Walters, was that the horse had lost support for its left foreleg as it struck a hole or unevenness in the ground, that this caused a shortened stride of the right foreleg, finally propelling it over that limb thus causing a fracture to it.  Dr Walters disagreed with the view that the right foreleg of Sun Brother could be seen to be flailing immediately before its last stride and fall, and considered that in normal galloping a horse's foreleg can "wobble in the air".  He also considered that some unevenness of the track could be discerned from the gait of the horses in the race, and as indicated above, that the horse lost support as its left leg struck the ground causing the ensuing events.

8. The primary questions addressed by the learned trial judge were whether the state of the track caused the appellant's injury, and whether the state of the track was sufficiently uneven or dangerous to warrant a finding of negligence or breach of duty against the Turf Club in failing adequately to maintain the track.  The primary evidence concerning the condition of the track was given by witnesses Corvi (a groundsman) and Ross (a steward).  Each made close examinations of the relevant area soon after the event.  Their evidence suggests that there was no such depression or unevenness as was suggested or inferred by the appellant's witnesses.  His Honour expressly accepted the evidence of these two witnesses and there is no challenge to this acceptance. 

9. In accepting Dr Pascoe's evidence the learned trial judge did not refer to Dr Walters' evidence.  It would seem that Dr Walters' evidence was predicated upon his inference that the track was in worse condition than was accepted, and on this footing it is hardly surprising that his Honour preferred the evidence of Dr Pascoe which fitted comfortably with the other evidence (considered above) that his Honour accepted in relation to the condition of the track.

10. Whilst at first glance it may seem curious that his Honour did not advert to the evidence of Dr Walters when indicating acceptance of the evidence of Dr Pascoe, his Honour did so in the context of discussing the evidence of the state of the track and after noting that Mr Ross and Mr Corvi were the only witnesses to take particular care to inspect the place where Sun Brother fell.  His Honour then gave reasons for accepting that the evidence of another witness, Mr Kongas, should be regarded as describing the state of the track near the rail but not in the fairly wide position where the video tapes showed Sun Brother to have fallen.  His Honour then continued:

"There is one further matter on which the video tapes are relevant.  I accept that they show, as the eminent veterinary surgeon Dr Reginald Pascoe said in evidence, that Sun Brother took "a shorter step on the right fore" before it threw its weight onto the left forelimb and some dirt was thrown out; then it threw its weight onto its right forelimb, started to "crumble", and went over.  Dr Pascoe's assessment is consistent with Mr Stockdale's to which I have referred.  Those assessments support the contention advanced on behalf of the defendant, and which I accept, that Sun Brother's off fore fetlock broke as a result of a weakness not previously apparent, and that break caused it to fall.  The evidence establishes that that can happen without warning on the best of turf.  It happened in the week before the trial to a horse called Three Crowns in the Melbourne Cup, as can be seen from a video tape of that race which was in evidence.  Accepting as I do Mr Ross's and Mr Corvi's evidence as to the state of the track where Sun Brother fell, I find its fall was not caused by the condition of the track".

11. In the context in which his Honour referred to the evidence of Dr Pascoe there is no reason to think that oversight or error occurred in relation to Dr Walters' evidence.

12. In our view his Honour's reasons demonstrate a careful assessment of the whole of the evidence, and the submissions of the appellant fall short of revealing any error or deficiency of a kind which would justify this court in interfering with his Honour's primary findings.

13. It is unnecessary to consider the submissions in relation to his Honour's hypothetical assessment of the quantum of damages.  We dismiss the appeal with costs.