Flanders v Small[2000] QDC 461

CIVIL JURISDICTION

JUDGE McGILL SC

and

BRISBANE

DATE 30/11/2000

JUDGMENT

HIS HONOUR: In this matter there will be judgment that the defendant pay the plaintiff $134,220. I publish my reasons.

...

HIS HONOUR: In this matter it is clear the plaintiff is entitled to an order that the defendant pay the plaintiff's costs to be assessed but the question arises whether the plaintiff's costs should be assessed on an indemnity basis pursuant to Rule 360. That depends on whether there was an offer to settle made under part 5 of chapter 9 of the Uniform Civil Procedure Rules.

The plaintiff relies on a document, described as an offer of settlement made under that part, to settle the claim by accepting the sum of $75,000 plus any amount which is refundable to WorkCover Queensland, together the plaintiff's costs to be agreed or, failing agreement, to be assessed on the appropriate scale.

The defendant submits that this was not a valid offer for the purposes of part 5 because the amount of the liability to which the defendant was exposed by accepting the offer was not made certain. The offer was vague and uncertain and that, therefore, it did not satisfy the requirements of the rules.

Counsel for the defendant has referred to the decision in John Goss Projects Proprietary Limited v. Thiess Watkins White Construction Limited (1995) 2 Qd.R. 591, where Williams J said at page 595: “There can be no doubt that in order to comply with the requirements of that rule the offer must be certain and not vague; it must be clear as to the benefit the party receiving the offer is to obtain if it is accepted.”

I think that that is correct and that is applicable to Rule 360, indeed, any offer under part 5 of chapter 9. The mechanism, if an offer is accepted, is provided in Rule 358, which contains a mechanism for any assessment of costs but otherwise assumes that the settlement will proceed by way of contract.

There is, however, a provision in Rule 365 that if a party does not comply with an accepted offer to settle, the other party may, at that party's election, apply to the Court for a judgment on the conditions of the offer and the Court may give the judgment. That is consistent with the notion that an offer to settle under part 5 must be an offer to settle a claim, or all of the claims in the proceeding, in terms which will finally bring an end, or finally resolve, that claim.

There was only one claim in this proceeding, a claim for damages and therefore the offer would have to be an offer which would entirely resolve that claim. I have, in another matter, expressed the view that under the previous rules, a offer merely to settle liability was not a valid offer under those rules and I think the same applies under the new rules: Willis v. Legal and General Life of Australia Ltd (Pl.882/98, 26.5.99, unreported).

I think that a similar approach applies here in that it is necessary that there be an offer in terms such that, if the offer is accepted, it would be possible to obtain a judgment in terms of the offer. The question therefore is whether the offer is certain for that purpose.

My initial concern about the matter was that it might be a varying amount, that is, that it might require payment of particular amount plus an amount which might vary from time to time depending on what the amount was refundable to WorkCover at a particular time.

I think however, after further consideration, that it would be better to interpret the offer and indeed, a literal interpretation of the offer, as the amount which is refundable to WorkCover Queensland as of the date of the offer, which was 7 September 2000.

That is the amount which is not identified at that stage by the plaintiff and it was apparently not in fact known to the plaintiff at that stage, since a request was sent to WorkCover on the same day for information as to what was recoverable. But it was an amount which could be ascertained not only by the plaintiff but also by the defendant.

It was open to the defendant to contact WorkCover and if so, he would be told what amount was refundable. WorkCover had a statutory charge from the amount payable by the defendant in respect of such amount as is refundable so this is a meaningful and unsurprising form of an offer.

The ordinary principle of contract law, or construction of a contract, is that that is certain which can be made certain and if that principle is applied in the present case, it can be ascertained what is the particular amount, which, as at a particular date, is refundable to WorkCover Queensland. And once that is known, the total amount of liability of the defendant to the plaintiff under the judgment, under the offer, is known with certainty.

The fact that that particular amount is not expressed in the offer is not fatal, In Suncorp Insurance and Finance v. Blakeney (1993) Aust. Torts Rep. 62, 642 it was held that an offer was a valid offer, notwithstanding that it did not state in the one figure the total amount payable under it if it was accepted, even though that amount could be worked out from the information contained in the offer.

Accordingly, I think, in my opinion, the offer was a valid offer and it was an offer to settle for $75,000 plus the amount then recoverable by WorkCover Queensland. That was in total an amount less than the amount for which the plaintiff has recovered judgment.

I think it will be fair to say that apart from the technical question of whether the offer was a valid offer for the purpose of part 5, it was also submitted on behalf of the defendant that because of the form of the offer, it was appropriate to make a different order for costs, other than the one specified by Rule 360 subrule 1. In effect, that I should discourage offers in this form by refusing to give effect to them under the rule, even if they were technically appropriate offers.

While I would not want to encourage any lack of precision in offers to settle under part 5, I think that as long as it is clear that what is being offered by reference to an amount refundable to WorkCover Queensland is an amount refundable at the time when the offer was made or at some other particular time, so that it is possible by speaking to WorkCover Queensland to find out a particular sum, then the practice is really unobjectionable.

It would be different if the offer were expressed in terms of so much to the plaintiff plus the amount refundable to WorkCover Queensland as at the date of payment, in circumstances where workers compensation payments were continuing to run, because that would be an offer which could never be calculated with precision unless there was payment and it would therefore be one where it is impossible to apply Rule 365.

But I think as long as the offer clearly identifies a particular amount which the defendant can ascertain as a particular amount, the offer satisfies the requirement of the rule and there is, I think, no particular reason why, as a matter of policy an offer in that particular form dealing with a WorkCover refund in that way should be discouraged.

In those circumstances, there is not sufficient reason to depart from the general policy underlying Rule 360 and the consequence is that I order that the defendant pay the plaintiff's costs of and incidental to the action to be assessed on an indemnity basis.

...

HIS HONOUR: I will certify the counsel's attendance to receive judgment.

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v.

1. [1]
   By this action the plaintiff claims damages for personal injuries which he suffered because of a collision. The action is unlike most trials about collisions in two respects; it involved a collision between racehorses rather than between motor vehicles, and the race, and hence collision, was videotaped using four cameras mounted in different positions, so that I can see the plaintiff suffer the fall in which he was injured: Exhibit 14 (which I think is a better copy than Exhibit 7). No doubt many trials, where completely different versions of what occurred in the collision have been given by the parties or other witnesses, would have been greatly simplified if the action had been captured on film, or, more recently, video tape, but in spite of this unusual advantage, there was in this case considerable argument about just what did occur, as well as why it occurred, and whether it amounted to negligence on the part of the defendant.

1. [2]
   Both parties are professional jockeys. The defendant is 41, has been a jockey for over 25 years, and has ridden almost 800 winners in about 7,500 races: p. 107. He is based at the Gold Coast, and has ridden mostly at provincial meetings: p. 108. The plaintiff is 42, and has been riding for about the same period (p. 11) although at least in the 1990's he has at various times had other jobs as well, and he has had breaks from racing at times: p. 13. In 1975 he was involved in a serious accident in a race at the Gold Coast suffering injuries to the back and head, and he did not return to racing for some time: p. 12. As well, in 1996, he had a break from racing for six months, but then returned to riding part time, as well as keeping on another job, in early 1997: p. 13.

The Incident

1. [3]
   On 1 November 1997, there was a race meeting at Corbould Park on the Sunshine Coast. In the second race, the plaintiff was riding Miracle Knight (p. 14) and the defendant was riding Campbell's Kingdom: p. 107. Campbell's Kingdom had not raced before: p. 107. Campbell's Kingdom was trained by Mr. Baldwin, who was not at Corbould Park that day: p. 138. He said Campbell's Kingdom was a particularly big horse, and a strong horse, and because of this and because it was his first race, Mr. Baldwin arranged for a senior jockey to ride him: p. 139. Mr. Baldwin, perhaps unsurprisingly, believed that Campbell's Kingdom had been properly educated before its first race: p. 139.

1. [4]
   At Corbould Park the horses race clockwise around an oval track; the winning post is close to the end of the straight, so that as horses run down after the race, they will turn with the curve of the track. As a horse comes to the curve past the winning post, it is expected to follow the rails around, otherwise there would be horses falling everywhere: p. 54. In the approach to the winning post, Campbell's Kingdom was in front of Miracle Knight, and closer to the rails. Campbell's Kingdom finished third in the race: p. 113. Shortly after the horses passed the winning post, Miracle Knight clipped the heels of Campbell's Kingdom, causing it to blunder and the plaintiff was thrown to the ground.

1. [5]
   According to the plaintiff, after the horses passed the winning post, the defendant's horse moved to its left into the path of the plaintiff's horse, and about the same time a horse which was further off to the plaintiff's left began to move in the opposite direction, again into the plaintiff's path: p. 15. The plaintiff called out to both of them, using an expression which operated as a generalised warning: p. 15. The horse to his left straightened up (p. 29) and the defendant's horse moved back in closer to the rails, but then came back out again fairly quickly into the plaintiff's path: p. 17. The plaintiff said that on the second occasion when Campbell's Kingdom began to move to the left, he called again, the defendant looked around, but the horse continued to come out in his path: p. 18. The plaintiff could not move to his left because the other horse that had come in was blocking him in that direction (p. 29), and he was already doing his best to slow his horse, and could not avoid the collision.

1. [6]
   According to the defendant, after his horse passed the winning post, he tried to slow the horse by pulling on the reins: p. 12. The horse started to move to its left, and he tried to correct this, but it continued on into the path of the plaintiff's horse: p. 112. The defendant initially said that there was only one movement of his horse to the left: p. 114. Under cross-examination he agreed that Campbell's Kingdom had moved to the side, straightened, and then moved again: p. 132. The first time he was unable to stop the horse from moving, but was able to correct it after it moved: p. 122. He heard the plaintiff call at approximately the winning post, and in response he kept his horse on a straight line: p. 114. When he heard the call he looked around: p. 135. On the second occasion, he said he was not able to stop it from moving out. It moved out about 1½ widths: p. 113. The plaintiff agreed that the defendant's horse moved to the left about 1½ horse widths: p. 57. I accept this figure. The defendant said that he could not have done anything more to stop his horse moving to the left in that way: p. 113.

1. [7]
   The horse which won was well ahead of the others as it passed the winning post, but by the time the collision occurred Campbell's Kingdom was catching up to it. One of the versions of the video tape shows that after the collision the defendant's horse caught up with the winner, and it appears the defendant and the jockey who rode the winner exchanged some words as the horses were side by side. The defendant said that at the time of the collision his horse was about two lengths behind the leader: p. 144. It was running in much the same position relative to the rails as the defendant's horse, and was slowing fester: p. 113. The defendant said that he therefore could not continue at the same distance from the rails otherwise he would have run onto the heels of the winner, but needed to veer to the outside of him slightly: p. 113. Later the defendant said that after the leading horse moved in front of him, he allowed his horse just to move to the outside of the leader to get past him: p. 122, 142. Under cross-examination he clarified the position by saying that he allowed the horse to move slightly to avoid the heels of the leader, but that it then continued to move to the left in spite of attempts to control it: p. 133. Campbell's Kingdom had shifted more than he intended: p. 122. He had tried not to allow it to go so far: p. 134.

1. [8]
   The defendant said that he was not aware when he moved out the second time that the rider who had called out previously was still where he had been, although he presumed that he was: p. 134. The defendant did not look around to his left to see that it was clear to move before starting to move to the left the second time (p. 155) although at that time he did not know whether the jockey who had called to him earlier was still in the same position: p. 142. He said however that there was no general practice that a jockey would not move to the side without first looking to ensure that he was not, by such a movement, causing interference to other horses: p. 155.

1. [9]
   The plaintiff asserted that as the defendant's horse came past the winning post, the defendant had “dropped his hands”; that is, allowed the reins to go slack (p. 18) and that this meant that the defendant was not keeping his horse under control so that it drifted into his path. The defendant denied that he had done this, and said that after he passed the winning post he stood up slightly, tried to restrain the horse and at the same time tried to steer him towards the rails: p. 113. The defendant said that some jockeys would drop their hands after passing the winning post, but it is not something he has ever done, because he tries to pull up his horse as straight as possible: p. 154. The defendant said that after the post he had both hands on the reins, pulling the inside rein a little bit harder to try to keep the horse near the rails: p. 121. The defendant said that at one point the video showed that his horse was fighting the restraint imposed by the reins: p. 121.

1. [10]
   According to the defendant, Campbell's Kingdom had a tendency to want to run away from the rails, but he was able to control the horse reasonably well throughout the race: p. 108. He said that he was able to keep him running straight in the straight, although he was running with his head closer to the rails than his body, a movement he described as crabbing: p. 109. The plaintiff however denied that Campbell's Kingdom was crabbing: p. 27. The defendant said that in the straight Campbell's Kingdom was leading with his left leg, which is not the preferable leg when taking a curve on a clockwise track: p. 108-9, p. 120. Mr. Wellburn said that at one stage Campbell's Kingdom was leading with his left leg (p. 79) but that after the collision he was leading with his right leg: p. 90. He thought that the horse had changed legs to come around the curve in the track. If a horse is leading with its left leg, it has a tendency to lean to the left (p. 30) and to move to the left: p. 53.

1. [11]
   While on the straight approaching the winning post, the defendant was using the whip on his horse: p. 112. This was applied with his right arm (p. 111), and may have had something to do with the way in which the horse was running on the track. The plaintiff said that if he had been running Campbell's Kingdom, he would have kept the horse heading straight by keeping control of the reins, not allowing him to move to his left: p. 25. He would not expect an experienced jockey to have any trouble keeping control of a horse: p. 26. He denied that the video showed that Campbell's Kingdom was difficult to keep under control: p. 28.

Expert Evidence

1. [12]
   None of the other jockeys who rode in the race, or anyone else who actually saw the race, was called to give evidence, but in view of the availability of the video tapes this is understandable. There were three witnesses who gave expert evidence as to the defendant's riding, based on their having seen the video tape. I should mention that there was an objection taken to the receipt of expert evidence as to the interpretation of what occurred on the video tapes, on the basis that this was something that I could see for myself. It is true that I can see what happened by looking at the video tapes, but what I cannot do is interpret the significance of what I see in the context of the situation here, horses which have been engaged in a race and are running down after passing the post. I certainly felt a need for expert assistance in interpreting the significance of what I can see on the video tapes.

1. [13]
   Counsel for the defendant referred to Kleise v. Pelling (Writ 1113/87, Chesterman J, 4.6.98, unreported) where His Honour said:

1. [14]
   His Honour is distinguishing between evidence which the court can itself comprehend without the assistance of an expert and evidence which might have gone undetected but for that assistance. Plainly the latter assistance is admissible. In addition, if the witnesses were being asked about whether the defendant was responsible in law for the fall of a particular horse, any expression of opinion might be inadmissible on the ground that the witness was being asked to swear the issue, although personally I doubt the usefulness of that rule, at least in cases where there is no jury. Strictly speaking, expert evidence is not admissible to identify things that are apparent from the video tape without the benefit of expert evidence, although this is one of those areas where it may be difficult in advance to identify what is apparent without such assistance, and what requires it.

1. [15]
   Personally, I felt the need for such assistance and generally found it valuable. Perhaps Chesterman J has more experience of observing horse races than I have. I think that it is better for the evidence to be led, even if some inadmissible evidence does get put up in the process, rather than to run the risk that a particular judge will in fact fail to identify the significance of something which others might think is obvious. In the present case, nothing very helpful to the issues that I have to decide was obvious to me from looking at the video tape without the benefit of the assistance offered by the evidence, except that there were two distinct moves to the left. I overruled the objection to the receipt of the evidence.

1. [16]
   The first witness, called by the plaintiff, was Mr. Cameron, who had been associated with horse racing for almost 40 years. He had about 10 years experience as a jockey which included riding winners on 76 different race tracks throughout Australia, and being premier jockey in the Riverina on three or four occasions, with a career total of about 8,000 - 9,000 rides. In about 1970 he qualified as a steward, and was Chairman of Stewards in Canberra from 1972 until 1980 when he returned to riding in North Queensland. He retired in 1989 after an injury, but was active with the Rockhampton Jockey Club as Deputy Chairman before finishing his career in the early ’90's.

1. [17]
   Mr. Cameron thought the defendant turned his head to the left at one stage and his horse had shifted out: p. 40. He said jockeys could call out to each other effectively during a race: p. 51. Mr. Lister also said it was common for jockeys to call to each other in order to avoid an accident: p. 163. He said a jockey who heard a call would try to stay where he was: p. 164. Mr. Cameron expressed the opinion that prior to the time when Campbell's Kingdom passed the winning post, the defendant had complete control of him, because he was not deviating off course, although under heavy pressure with the whip (p. 40-1), and that the extent to which Campbell's Kingdom moved to its left in the movement in the course of which the collision occurred suggested that the defendant did not have control of the horse: p. 42. Mr. Campbell also spoke of the defendant's standing up in the irons after his horse passed the post, as a means of taking pressure off the horse, and in connection with that allowing the reins to go loose: p. 43. He later said however that it appeared that the defendant stood up in the irons at the point of the fall: p. 51. During the race if a horse following another horse gets too close to it, it can avoid clipping its heels by simply easing off a bit: p. 49.

1. [18]
   Evidence was also led on behalf of the plaintiff from Mr. Wellburn, a jockey of 33 years experience, based in Rockhampton: p. 77. He had won 12 premierships during that period. Mr. Wellburn said that as Campbell's Kingdom came down the straight he might have been crabbing but he was running a true course: p. 79. He said that it appeared from the video that Campbell's Kingdom had moved to the left, straightened up and then the defendant had just relaxed on his horse, dropped his hands on the horse and the horse had been let go where it wanted to go: p. 80. As a consequence, it moved out about 2 horses so that the plaintiff's horse clipped its heels. He said he could not see why the defendant had not corrected the horse straight away as soon as it began to move to the left on the second occasion.

1. [19]
   Mr. Wellburn expressed the opinion that after the race it was the jockey's obligation to keep the horse on a true and straight course, but said a lot of jockeys just rest and let the horses run on and some horses move around a bit: p. 80. He also thought that after passing the winning post the defendant had dropped his hands on the horse and the horse had relaxed: p. 86. It was not clear however that this was on the basis of something that the witness had seen on the video, at least prior to the point where the collision occurred. It is also not clear that his observation of the change of the defendant's riding position did not relate to a point after the collision occurred, at a point where it does seem to me that he stands up more in the saddle: p. 89.

1. [20]
   The third expert was Mr. Lister, a retired jockey of 35 years experience, during which time he had ridden about 1,800 winners and won three Brisbane premierships and two Queensland provincial premierships: p. 157. Mr. Lister expressed the opinion that it appeared from the video that the defendant had attempted to control Campbell's Kingdom after the winning post, because the horse's head appeared to be turned sideways: p. 158. It appeared to him that the horse was trying to get away from the fence: p. 158. Mr. Lister described Campbell's Kingdom as going sideways prior to the winning post, and after the winning post, the defendant just lost control: p. 158. It appeared that after Campbell's Kingdom passed the winning post the defendant was attempting to pull the horse up: p. 158. He thought that after Campbell's Kingdom had come out on the first occasion the plaintiff should have either ridden his horse fester so as to come up along side Campbell's Kingdom, or pulled his horse up more so as to keep back away from it: p. 159. If the horse moved sideways and one was alongside, one might get a bump but that would be all; it would not be dangerous the way it was if on the horse's heels: p. 166.

1. [21]
   Mr. Lister also spoke at one point of the defendant's having dropped his hands after the winning post (p. 158) but from cross-examination it was not clear whether this was a reference to the same sort of manoeuvre that had been described by the plaintiff and his witnesses, which as they described it involved allowing the reins to go slack. See p. 159-161. My overall impression is that the expression “dropping one's hands” may be used by jockeys in a more general way to describe the change from what the jockey is doing prior to passing the winning post in order to urge his horse on, to a more relaxed activity after the post has been passed. It does not necessarily involve allowing the reins to go limp. Mr. Lister said that after the race, in order to avoid a collision between a leading horse and a following horse, the leading jockey had to try and keep his horse straight, but the onus was on the following jockey to keep out of the way: p. 161. In cross-examination the plaintiff accepted this: p. 27. Hence the defendant had to keep clear of the lead horse which was slowing down in front of Campbell's Kingdom: p. 167. He said that the situation was different from the position during the race, where a horse in front was not allowed to drift out in a way which interfered with the running of a horse behind, because there was no longer pressure on the jockey of the horse behind to do his best to improve his position: p. 162.

1. [22]
   Mr. Lister was of the opinion that, on the two occasions on which Campbell's Kingdom had moved to the left (or “ducked out” as he put it) this was something over which the defendant had had no control: p. 162. It seemed to him that the defendant had not, on the second occasion, deliberately allowed his horse to move to the left: p. 162. If a horse starts to move after the winning post, the jockey will try to straighten it: p. 165. Mr. Lister did concede under cross-examination that if after the first move the defendant had heard a call and believed that it was coming from a horse behind and just outside his horse, it would be silly if he deliberately then allowed his horse to “duck out” again: p. 166.

The Authorities

1. [23]
   The leading case on the duty of care owed by participants in a sport is Rootes v. Shelton (1967) 116 CLR 383. Although both the plaintiff and the defendant were professional jockeys and were acting as such in the course of this race, it seems to be accepted that this case applies to professional sportsmen in the same way as amateur sportsmen. It involved a water skier who collided with a stationary boat. Barwick CJ said at p. 385:

As Kitto J put the matter at p. 389, whether there was a breach of the defendant's duty to the plaintiff depended on the reasonableness of the conduct of the defendant which caused the plaintiff's injury, in the particular circumstances in which it occurred. This was not the same thing as deciding whether or not it involved a breach of the rules. See also p. 390. The approach of the other members of the High Court was similar.

1. [24]
   That decision was applied to horse racing by the Court of Appeal of New South Wales in Johnston v. Frazer (1990) 21 NSWLR 89. In that case, the appellant was held liable on the basis that he had moved his horse in in circumstances where there was insufficient clearance in front of other horses, which had therefore been themselves forced in with the result that ultimately the plaintiff's horse was forced in behind another horse which was too close, so that it clipped the heels of that horse and the plaintiff was injured. The issue was whether it was sufficient to conclude that the defendant was guilty of failing to take reasonable care for the safety of the plaintiff in the circumstances, or whether it was necessary for the plaintiff to establish that the defendant's actions constituted deliberately running an unjustifiable risk and therefore reckless. The court rejected the latter test.

1. [25]
   Both of these cases were applied by Chesterman J in Kliese v. Pelling (supra). In that case, His Honour found that a jockey was negligent when he had moved his horse to the left in order to attempt to pass on the outside a horse in front of him as a result of which his horse collided with another horse to his left and slightly to the rear, causing that horse in turn to move to its left and squeeze the plaintiff's horse, which was on its left, between it and a horse further to the left, as a result of which the plaintiff's horse fell and he was thrown on to the track and suffered injury. In that case the evidence was that the defendant was not aware of the horse which his horse collided with when he moved to the left prior to his moving, and His Honour regarded it as clear that “before moving his horse left or right, a jockey should at least glance in that direction to ascertain that the manoeuvre will not bring him directly in front of another horse and so close that their hooves might touch or into contact with another horse”.

1. [26]
   His Honour was conscious of the need not to demand too high a standard of a jockey because of the competing considerations imposed by the obligation to win, (see Rule 135 in Exhibit 30) and by the difficult circumstances under which a jockey was operating, which limited the extent of what could reasonably be required by way of care for other riders. His Honour regarded the obligation of each jockey to try to win as a conflicting responsibility which it was necessary to take into account in determining what a reasonable man in the defendant's position would have done by way of response to the risk, in terms of the test in Wyong Shire Council v. Shirt (1980) 146 CLR 40. However, it was not a matter of such significance that it displaced any obligation of care to other riders. His Honour referred to the difficult environment under which the jockeys were operating following compelling terms (p. 12):

1. [27]
   I have found His Honour's analysis of the approach to such a matter to provide helpful guidance, and I gratefully accept it. I am however conscious of the need to decide the present case on the evidence led in this trial, and to be conscious of the possibility that His Honour's conclusions and some of His Honour's remarks were based on evidence which may have been different. For example, there was a reference at p. 7 which suggests that there was evidence before His Honour that the control a jockey can exercise over the horse is slight, whereas the thrust of the evidence before me was that ordinarily a jockey can and does control his horse, although there was always the possibility that the horse would either resist control or defy it, doing something entirely of its own volition. I accept the evidence to that effect in the present case, which accords with what I would expect. I would think that to conduct a horse race properly would require the horses to do what was expected of them most if not all of the time.

1. [28]
   Another area of difference was as to the “crossing rule”. His Honour refers to the effect of the evidence he heard about it at p. 9. The evidence before me was different in detail. Mr. Cameron said that it was generally accepted that a horse must be two lengths clear before it can shift either in or out: p. 48. This was accepted by the defendant, subject to the qualification that it did not apply if the horse in shifting did not cause interference to other horses: p. 155. Mr. Wellburn also spoke of two lengths clearance: p. 88.

Analysis

1. [29]
   I accept that at the end of this race, about the time the defendant's horse passed the winning post, the defendant's horse moved slightly to its left. I accept this move was not something intended by the defendant, and it was either a spontaneous movement on the part of Campbell's Kingdom, or an unintended response by the horse to the change in the way it was being ridden after passing the winning post. Until then the defendant had been strongly urging his horse onwards, but keeping it straight by steering it to the right, which would have involved keeping some pressure on the right rein, to counter a tendency for the horse to move away from the rails. This tendency could be because of the foot with which it was leading, or because of a desire to move to the left because it was being whipped on its right side, or there may be some other explanation. Whatever the explanation, during the race, the defendant was able to control the horse properly and keep it running straight, although I accept that in the straight it was crabbing.

1. [30]
   After passing the winning post, the defendant put away the whip and relaxed to some extent, but I accept that he did not simply allow the reins to go slack. Rather, I accept his evidence that after the winning post he was pulling on the reins trying to slow the horse down. I am not satisfied by the evidence of the plaintiff and his expert witnesses to the contrary. It was not clear that his experts were not talking about a point after the collision occurred. I certainly cannot see any indication on the video myself that the defendant dropped his hands and stood up in the stirrups to any significant extent, at least not prior to the time when the collision occurred, and it seems to me that there are indications that some control was being exercised over Campbell's Kingdom in the period after it passed the winning post, which is inconsistent with the defendant simply having left the reins limp. It may be that he “dropped his hands” in the broader sense to which I have referred earlier, in that he changed from doing his best to encourage the horse to run as quickly as possible to a more relaxed attempt to slow it down, but I accept that he was attempting to control the horse at all times.

1. [31]
   It may be that the explanation for the movement left is that, after passing the winning post, the defendant began to draw back on the reins to slow the horse down, and in doing so either lost or diminished the effectiveness of the process by which he had been attempting to steer the horse to the right to counter its tendency to move to the left. If that had occurred, and the tendency to move to the left was continuing, the result would be that the horse would move to the left. Whether or not that is the explanation for the first move to the left, I accept that it was not deliberate on the defendant's part. Mr. Lister said that horses varied a lot in the ease with which they could be controlled, and sometimes they would just move and no one could stop them: p. 167-8. I also accept that Campbell's Kingdom moved into a position where it was at risk of a collision with Miracle Knight.

1. [32]
   Because of the way in which the other horse had moved in to Miracle Knight's left, the plaintiff found himself being crowded in by horses from both sides. However, when he called out, the horse to his left straightened up, and the defendant not merely straightened up but moved back slightly to his right, as is apparent from the video tape. This shows that the defendant was still in control of this horse: p. 32. This removed the immediate threat from the plaintiff, although it left him in a difficult position because the horse to his left meant that he was no longer able to go in that direction if Campbell's Kingdom moved left again. There was, however, no particular reason for the plaintiff to have assumed that Campbell's Kingdom would move left again. It had moved left once before but when he called out the defendant checked this move and moved back again.

1. [33]
   The defendant had reacted as if he was aware of the plaintiff's position, and in those circumstances there was no particular reason for the plaintiff to be anticipating a further move to the left in the immediate future by Campbell's Kingdom. Had he done so, it may have been practical for him to speed up a bit, although I would have expected such a manoeuvre would be unusual since ordinarily after a race the horses would be running down, that is slowing down, rather than speeding up. I think there was limited scope for him to draw back by slowing down more quickly. It was not established that the plaintiff could have pulled up his horse more quickly had he been attempting to do so. Mr. Wellbum expressed the opinion that the plaintiff could not have pulled up his horse harder in order to avoid the collision: p. 88, and see also p. 54. In any case, there were other horses behind Miracle Knight and there might have been other difficulties with them had the plaintiff pulled up with any unusual haste.

1. [34]
   There was evidence which I accept that after the race can be a dangerous time, particularly if various horses slow down at different rates. Mr. Lister said that it was usually after the winning post where horses do the wrong thing: p. 165. It is therefore of some importance that the jockeys after the race try to avoid any sudden and significant changes in speed or direction: p. 33. They need to keep control over their horses (p. 42), which involves keeping the reins tight: p. 17. The defence did not raise an issue of contributory negligence, so the only question is whether the plaintiff's actions excluded any causation on the part of the acts or omissions of the defendant, and I do not accept that they did.

1. [35]
   In my opinion, the crucial issue is what happened on the second occasion. If in spite of the defendant's attempts to keep Campbell's Kingdom in its same position relative to the rails, it had in defiance of that control moved to the left so as to foul Miracle Knight, that, in my opinion, would not have been the responsibility of the defendant, and any consequent injury to the plaintiff would simply have been one of the risks associated with the sport. That injury to jockeys is a recognised and frequently materialising risk, and one apparently accepted by the participants, is obvious from the substantial list of falls which Mr. Cameron had accumulated. Mr. Cameron said that he had had 20 or 30 race falls in his life (p. 51) in a career of 8,000 to 9,000 starts: p. 38. This is of the order of 1 fall every 350 races. Indeed all of the witnesses spoke as though they had had experience of falls, and that falls were not all that unusual.

1. [36]
   I think it is different, however, if the second move to the left was the result of a deliberate decision by the defendant to move Campbell's Kingdom to the left, either by steering to the left or simply by reducing the control efforts he was using to prevent the horse from following its inclination to move to the left. I am satisfied that the defendant was aware that the first move to the left by Campbell's Kingdom had caused problems for another jockey, and that as a result he had corrected by moving back slightly to the right. I am also satisfied that he knew that the difficulty was to his left. He said at p. 135 that he looked at that point, and he was aware that another horse had moved in from further out (p. 156), and he would probably have been able to hear that the call the plaintiff made on the first occasion (which he heard) came from his left. I infer that he looked to his left. Thereafter he had no reason to think that the situation to his left was any different.

1. [37]
   Even if he had not been aware that there was another horse put into difficulty to his left, he ought to have been aware of that from the situation then prevailing, where he was fairly close to the rails on his right, there was apparently no other horse in his immediate vicinity to his right, and the call had followed a move by his horse to the left, in circumstances where a horse further out to his left was moving in. Mr. Cameron expressed the opinion that jockeys usually know what goes on in a race: p. 47. In those circumstances, I think a reasonable inference which an experienced jockey ought to draw was that the call came from someone on his left, so that if the defendant was not aware that his first move had caused some difficulty to someone to his left rear, he ought to have been aware of that.

1. [38]
   I also find that the defendant did not in fact look or glance to his left just before moving out the second time. The defendant admitted as much in evidence. I also find the move to the left was deliberate. Whether Campbell's Kingdom ended up moving further to the left than the defendant had intended is, in my opinion, irrelevant, since I think the operative negligence occurred at the point where Campbell's Kingdom began to move to the left. Mr. Lister said that jockeys did not look around much to see the position of other horses, only when they were coming across from the outside where they would have a look to see if they were clearing a horse inside: p. 164. An experienced rider can do this with a glance: p. 165. There is no reason why this should not apply to moving out as well as moving in. Whether or not, as a general proposition, a jockey is negligent if he or she moves to the left or right without first glancing in that direction to ensure that the move will not foul another horse, in my opinion it was negligent of the defendant to move his horse deliberately to the left to some extent on the second occasion, in circumstances where he knew that a similar move a couple of seconds earlier had apparently caused difficulty to a rider to his left rear, without first glancing to his left to ensure that such a move would not then cause a similar difficulty. The same would have been the case, in my opinion, if the defendant merely ought to have known that his previous move had caused a difficulty to a rider to his left rear. When the defendant moved, or allowed to move, Campbell's Kingdom to the left without first checking that he could do so without endangering another rider, in my opinion he was in breach of his duty of care to the plaintiff.

1. [39]
   I base this conclusion essentially on the evidence of Mr. Lister. The plaintiff's expert witnesses were directing their evidence more to the question of whether there was a lapse of proper control on the part of the defendant. I do not accept that the defendant in a general way relinquished control of his horse after the race, although the first move to the left represented a failure of control, in the sense that it was the action of the horse rather than the choice of the rider. The second move to the left, at least in its initiation, was not the consequence of an absence of control on the part of the defendant. I think it was in substance the manoeuvre that Mr. Lister characterised as a “silly action”: p. 166. It was therefore not reasonable conduct for an experienced jockey in the circumstances then prevailing.

1. [40]
   The defendant's explanation for the move to the left at that point was that Campbell's Kingdom was gaining on the leader, and he wanted to avoid running up too close behind its heels. If one disregards the possible effect on other riders, moving Campbell's Kingdom to the left so as to run to the left of the leader who had slowed down was a sensible thing for the defendant to do. But the defendant was not entitled to disregard the effect of the move to the left on other riders. If moving to the left would endanger the plaintiff, he should have either slowed Campbell's Kingdom more quickly, or if that were not practicable, allowed Campbell's Kingdom to speed up a bit so as to get far enough ahead of Miracle Knight to be able to cross in front of it safely. The leader was at the time of the fall still some distance ahead, it seems to me from the video at least two or three lengths clear of Campbell's Kingdom. Mr. Wellburn did not consider that at that stage Campbell's Kingdom was getting close to the lead horse: p. 87. It was not as though the defendant was in immediate danger if his horse did not move to the left. He was at the time restraining his horse by pulling on the reins, so he could easily have moved ahead of Miracle Knight, probably just by reducing the restraint he was applying to Campbell's Kingdom. I do not accept that the circumstances in effect compelled the defendant to move to his left whether or not the plaintiff's horse might be fouled as a consequence.

1. [41]
   I also do not accept that the fall occurred because Campbell's Kingdom moved further to the left than the defendant intended. It appears to me from the video that prior to the second movement to the left, Campbell's Kingdom was running to the right of but quite close to the line on which Miracle Knight was running, so even a fairly small move to the left would produce some overlapping of their paths, which produced the danger of a collision. There was not room for Campbell's Kingdom to move to the left to a position where it could then move up alongside the leader while remaining clear of the path of Miracle Knight. In my opinion, even a fairly slight movement to the left by Campbell's Kingdom put the plaintiff at some risk of a collision, and the defendant ought to have looked before he attempted any such movement. If there was a failure of the defendant's control as to the extent to which Campbell's Kingdom moved to its left (which if it occurred would not have been as a result of negligence on the part of the defendant) it was not the cause of the collision and hence the plaintiff's injury. On the test in March v. E & N H Stramare Pty Ltd (1991) 171 CLR 506, the defendant's deliberate move to the left without first looking or glancing to his left caused the collision and the plaintiff's injury. The defendant is therefore liable in damages to the plaintiff for the injury so caused.

Quantum

1. [42]
   After the accident the plaintiff felt pain in his right shoulder and his forehead: p. 18. He suffered an overlapped displaced fracture of the mid shaft of the right clavicle: Exhibit 2. He was taken to hospital where he was assessed for a time but was not admitted, his arm was placed in a sling and he went home. The fracture was originally managed by his general practitioner, but the bone did not heal properly. The plaintiff was first seen by Dr. Winstanley, an orthopaedic surgeon, on 26 November 1997; he was seen again on 10 December, and the following day Dr. Winstanley reported to WorkCover: Exhibit 24. There was discomfort associated with the fracture, and continuing pain in the right shoulder. This was restricting his range of motion within the shoulder. Apart from the facture, Dr. Winstanley thought the plaintiff had a soft tissue injury to the right acromioclavicular joint and shoulder area consistent with the fall described by the plaintiff. By 10 December there had been some improvement but bone formation was slow. At that stage Dr. Winstanley was contemplating continuing conservative treatment. The same day he wrote to the plaintiff's general practitioner suggesting that the plaintiff gradually increase his activity: Exhibit 23.

1. [43]
   An x-ray taken in February 1998 revealed minimal callus formation and no bony union: Exhibit 2. Dr. Winstanley reported again to WorkCover on 27 March 1998: Exhibit 22. There had been some improvement in symptoms in December and January, with a return to work in February with modified activities, but after three weeks the plaintiff was unable to continue because of increased pain in the right shoulder. Dr. Winstanley noted that the fracture had not united, and recommended surgery to fix the fracture with a plate and bone graft. The plaintiff was admitted to hospital on 6 April 1998. A graft of bone from the right iliac crest was made and the clavicle secured with a plate. The plaintiff was left with a scar near his right hip which has produced some irritation: p. 19. Dr. Winstanley expected the plaintiff to require a sling for two to three weeks, although it would take some time for the bone graft to consolidate: Exhibit 21.

1. [44]
   The plaintiff's recovery after the operation was satisfactory, and by 13 May his range of motion had increased, although there was still some significant restriction: Exhibit 20. After the operation there was still some overlap of the bone ends, but no other bone or joint abnormality: Exhibit 1. The plaintiff also had discomfort as a consequence of neuroma formation around the wound. He was at that stage not fit to return to any type of work. He was seen again by Dr. Winstanley on 1 July 1998: Exhibit 19. There was then a full range of passive movement in the right shoulder, with symptoms associated with the right acromioclavicular joint, and difficulty in performing vigorous activities. He was not thought to be fit to return to horse riding until the fracture had satisfactorily united. He was able to do lighter work. Other symptoms had also abated.

1. [45]
   The plaintiff was seen by Dr. Winstanley again on 29 July 1998: Exhibit 18. There was discomfort in the right clavicle, both associated with the plate and in the acromioclavicular joint. It had been aggravated by a recent trial of work delivering pamphlets for which he received $100: p. 21. The plaintiff had begun exercises preliminary to returning to riding which he was managing reasonably well. There was a good range of movement but with pain at the extreme of abuction and flexion. He was tender over the plate. Dr. Winstanley thought that removal of the plate would be required at some time but not within 12 months. He thought him fit to return to work that did not require lifting or carrying activity, and he should be able to return to riding in mid-August. There was a disability percentage of 6% given by Dr. Winstanley but I take it that that was by reference to the WorkCover scale.

1. [46]
   The 1998 operation would have made the injury less painful and improved his functioning, but the plaintiff had some continuing symptoms, particularly with heavier activity: p. 19. He had been working before the accident at the Alexandra Headland Surf Life Saving Club, and he went back to work there in October 1998 (p. 19), although doing less strenuous work: p. 21. In November 1998, he returned to racing, but he found that when he rode hard with the whip pain developed in his shoulder, and this was more than he could cope with: p. 19. In addition, he did not have the strength to pull a horse up after a race: p. 20. He found that his ability to use the whip was impaired, which could be significant in a tight race: p. 20. He persisted for some months, but gave up riding in May 1999 and has not returned to it: p. 21. He has renewed his licence, but I suspect that that is more because of his long term association with the sport, and his obvious attraction to it, rather than an indication of any realistic prospect of his returning to it.

1. [47]
   The plaintiff saw Mr. Warren, a counsellor, on four occasions in early 1999 with depression associated with the consequences of his injury, particularly the prospect of the loss of horse riding which he had decided no longer to pursue: Exhibit 25. Mr. Warren undertook some cognitive behaviour therapy, and notes that his general practitioner had prescribed anti-depression medication. The plaintiff's condition apparently improved as a result of this.

1. [48]
   The plaintiff was seen by Dr. Pentis, orthopaedic surgeon, for the purposes of a report on 28 April 1999: Exhibit 5. At that stage, the plaintiff's complaints were some continuing difficulty with the shoulder and clavicle, hyper-sensitivity, loss of about half or a little more of his normal right arm strength, with pain radiating down the right arm to the fingers, and some odd sensory dysfunction. There was difficulty in using a whip, and he could not sleep on the right side. Dr. Pentis thought that removal of the plate might be of some assistance in time, as would be gentle exercises to strengthen and increase the function of the shoulder. He thought it likely that there would be some permanent incapacity involving a loss of 20-25% of the effective function of the right arm, giving him problems riding a horse, particularly in a race, or in heavy, strenuous activities such as lifting and overhead work. His percentage assessment took into account both the functional effect of the injury and the pain associated with it: p. 152. Dr. Pentis said that the purpose of removing the plate was to try to reduce the amount of pain, thereby improving the range of movement and strength: p. 150. He could not give an estimate of the level of disability of the plaintiff after such an operation without having seen the plaintiff, and did not think that one could be given reliably until at least 9 months after such an operation: p. 151.

1. [49]
   A further report was provided by Dr. Winstanley to WorkCover on 10 April 2000: Exhibit 17. The plaintiff was continuing to complain of discomfort associated with the plate, and Dr. Winstanley thought that it was time for it to be removed. The plaintiff also had symptoms associated with the right acromioclavicular joint, which had been aggravated by his attempted return to racing. He had been unable to continue with this, and was working at the Surf Club again. The plaintiff underwent surgery on 24 July 2000 to remove the plate, and for excision of the right acromioclavicular joint. The joint was found inflamed and the outer one centimetre of the right clavicle was removed: Exhibit 15. There was satisfactory bone union in the clavicle. The plaintiff was in hospital for two days, and was expected to require six weeks rehabilitation (Exhibit 16) during the first seven to ten days of which he would be wearing a sling: Exhibit 15.

1. [50]
   The plaintiff was reviewed by Dr. Winstanley on 20 September 2000 for the purposes of a report: Exhibit 6. The plaintiff was still experiencing difficulty with heavy lifting and carrying activity at his work, although there had been some improvement since the operation; the hyper-sensitivity was no longer present. There was some change in the configuration of the right shoulder, although not as pronounced now as in Exhibit 12: p. 103. The plaintiff feels he can do more: p. 61. The remaining condition was expected to be stable, and would not develop arthritis or produce greater restriction in the future. He would be able to continue to do his lighter work at the Surf Club, but a restricted range of motion and decreased strength in the right shoulder would prevent him from returning to work as a jockey or the heavier work at the Club: p. 102. There was no continuing need for assisted household activity. Dr. Winstanley thought the permanent partial disability was the equivalent of 10% loss of function of the right arm. This operation had reduced his pain but increased his loss of function in the right arm: p. 102.

1. [51]
   Apart from his orthopaedic injury, the plaintiff noticed after the accident that he would, from time to time, suffer turns during which he went blank for some seconds. Prior to this accident, there had been infrequent similar episodes, and they may have dated from the 1975 injury. They were sufficiently mild and infrequent not to be a bother to him, and he had never previously had them investigated, but after the 1997 accident he began to experience them several times a day.

1. [52]
   On 16 January 1998 the plaintiff was seen by Dr. Schapel, a neurologist, on referral from his general practitioner; Dr. Schapel subsequently provided a report to WorkCover: Exhibit 27. He found indications of epilepsy in an EEG which he conducted, and expressed the opinion that the fall in 1975 was responsible for the epilepsy: Exhibit 27. He could not say how likely it was that the fall in 1997 caused an aggravation of the seizures: p. 98. He had some difficulty accepting that the fall in 1997 caused the increase, in the absence of an indication that there was a serious head injury: p. 99.

1. [53]
   On 16 February 1998 the plaintiff was seen by a neurologist, Dr. Mann, who provided a report to WorkCover two days later: Exhibit 26. According to the report, the history indicated the plaintiff was not rendered unconscious and there was no period of amnesia. Dr. Mann records that a history of the increase in frequency of the turns being noted “some weeks after the accident”, that is, the 1997 accident. He expressed the opinion that it was most unlikely that the increase in frequency was related to the fall in November 1997, and noted that the only physical symptoms attributable to the fall were those related to the fracture of the right clavicle: Exhibit 26. Dr. Mann agreed that blunt trauma to the head could cause an increase in symptoms of epilepsy in a person who already suffered from epilepsy (p. 115), but thought that only a significant head injury would be a probable cause of the increase in frequency of the epileptic attacks. Alternative causes could be the development of some other disease of the central nervous system, emotional factors, and the possibility that he was suffering from something other than epilepsy: p. 117. The fact that the condition was effectively controlled by Lamictal made this last explanation improbable: p. 118. I think that this, coupled with the absence of other symptoms developing, makes the possibility of some other disease of the central nervous system unlikely.

1. [54]
   He was seen for the purposes of a report on 28 April 1999 by Dr. Todman, a neurologist, who noted that the plaintiff had been treated since March 1998 with Lamictal which had been satisfactory: Exhibit 3. It had achieved complete control of the seizures, with minimal side effects, only slight drowsiness in the first few weeks. Dr. Todman also investigated some symptoms in the right arm, possibly associated with the fracture of the clavicle, particularly some weakness. He found that nerve conduction studies were normal in the right arm, but a pins and needles sensation experienced in the arm suggested some nerve irritation in the brachial plexus which is adjacent to the clavicle. Dr. Todman attributed the significant increase in frequency in the epilepsy to the 1997 fall, and thought that it likely that the plaintiff would require medication to deal with it for the rest of his life. He thought there was a high probability that the seizures will remain under complete control with medication, a probability of at least 90%: Exhibit 4. There was a small possibility that the seizures might recur in the future, despite the medication. If the accident had not occurred, then the frequent and mild symptoms that the plaintiff would otherwise have been suffering might have got less, might have stayed the same or might have increased: p. 71.

1. [55]
   On the whole, notwithstanding the significance attributed to the relative mildness of the injury to the head which the plaintiff suffered on this occasion, I think it more likely than not that the increase in the frequency of the epileptic attacks was caused by this fall. It may be that Dr. Mann was influenced by that aspect of the history when he records the symptoms not having been noted until “some weeks after the accident”, but when the plaintiff saw Dr. Schapel on 16 January, he described the attacks as having become more frequent since the fall on 1 November 1997. In one version of the video it looks as though his head is in contact with the ground at one point. It may be that the superficial severity of the head injury was diminished by the effectiveness of the protective skull cap which the plaintiff was wearing at the time, but this did not intercept the mechanism by which the epileptic condition was aggravated. The alternative explanations suggested are not convincing. Indeed, if the increase in the epileptic condition was actually caused by stress brought on by the other injuries suffered, it will still be in law caused by the accident, so the defendant would still be liable.

1. [56]
   The plaintiff was born on 13 August 1958 and is now 42: p. 11. After leaving school at about age 15, he began work as an apprentice jockey in Brisbane. After completing his apprenticeship, he continued in that career, although he did have other work at times; he worked in a bread factory, as a delivery driver, and for a time as a cleaner: p. 13. He moved from Rockhampton to the Sunshine Coast in about 1995 (p. 75) and began to work at the Lifesaving Club at Alexandra Headlands, initially as a kitchen hand. For a period of about 6 months he did not race, but then resumed some racing, although he kept the job with the Club. He is right handed. He is now back at work at the Club, but still doing easier work than prior to the accident, essentially as a maintenance man, although he does help out to some extent in the kitchen: p. 21. He used to work about 20 hours per week at the Club (p. 62) but now works about 30 hours per week: p. 61.

1. [57]
   The plaintiff said that but for the fall and the injury he would have still been riding and still doing his old job at the Surf Club. The plaintiff said that he would have continued to ride until he was 60 odd (p. 25) but I think it unlikely that he would have continued to ride much beyond 50, and I accept the evidence of Mr. Lister at p. 167. I think it realistic to allow for a potential period of riding had this accident not happened of 10 years, and even then some allowance should be made for the possibility that there would be some periods in that when either because of other injury or because of some other reason, he would be out of racing for a time. I accept that the plaintiff was particularly attached to the sport, and that he would not have readily given it up as he grew older, but I do think a point would have been reached where he would have been at least substantially tapering off, either because he was deciding to give it away himself or because he was having greater difficulty in securing rides. The plaintiff believes he cannot ride now (p. 65) and because of his failed attempt and the medical opinion I am satisfied that he will not ride in the future.

1. [58]
   The plaintiff has had a good deal of pain one way or another from what was initially a relatively minor fracture. The bone did not end up in a good position, and did not heal naturally, and required an operation for plating and a bone graft, and a later operation to remove the plate which had been quite painful for some time. A painful joint was also removed. Hopefully, once the plaintiff finally settles after his recent operation, his pain level will be significantly lower, although it is too early to know definitely whether that will occur and I must recognise the possibility that it may not. If it does, however, it is likely that most of the plaintiff's actual pain will be behind him. He will remain unable to ride, an activity which was, I think, more than just a means of earning a living, so that for him loss of the riding is also the loss of one of the pleasures of life. How much pain he has in the future will probably depend largely on the extent to which he can, in the course of earning an income, avoid the sort of activities which will put too much strain on his shoulder. Such an approach is likely to affect his ability to earn income in the future, so there is a trade-off here. Percentage disabilities are of limited use, but for what it is worth, I expect the most likely long term outcome is 15% loss of use of the right arm. Dr. Winstanley was not, I think, allowing for pain, and Dr. Pentis made an assessment before the recent operation.

1. [59]
   I am satisfied that the worsening of the epilepsy was caused by this accident, but it is probably not going to have any significant effect on the plaintiff other than to place him in the position where he has to keep taking tablets to control it. There is a scar on his hip which gives some trouble, and some loss of normal configuration of the shoulder. In the circumstances I assess damages for pain and suffering and loss of amenities in the sum of $27,500, of which I attribute $12,500 to past loss. Interest at 2% per annum will be allowed on the balance after deducting the lump sum payment from WorkCover of $5,545 (Exhibit 28), as both counsel submitted I should do, for three years.

1. [60]
   It is difficult to determine with any degree of precision what economic effect the loss of horse racing has had on the plaintiff I was provided with some information from the plaintiff's tax returns since 1993 which show that income from work as a jockey after expenses but before tax was as follows:

This last figure was for a period of only four months, and is the equivalent of $5,016 for the year. What seems to follow from this is that the plaintiff's earnings as a jockey dropped off quite a bit at about the time he came from Rockhampton to the Sunshine Coast; the information available does not reveal whether this occurred before or after he moved, but it would be understandable if after he moved it took him some time to build up an earning base in the new area.

1. [61]
   Income built up to some extent the following financial year, although not to the level it had been in 1993-1994, but then fell off again, presumably as a consequence of the period when he was not riding at all. It seems that his earnings were then starting to build up again before the accident. The plaintiff said that he was just starting to break into racing in the Sunshine Coast, and in Brisbane (p. 75) but he would have been exposed to a good deal of competition at Corbould Park at least, because meetings were held there on a Sunday when the Brisbane jockeys would be available to ride: p. 126. It is also clear that he was very much a part time jockey after his move to the Sunshine Coast, so that it was not doing the very demanding level of work which can be associated with work as a full time jockey: p. 59.

1. [62]
   It is by no means clear what would have been the earning pattern of the plaintiff had the accident in 1997 not intervened. He may well have developed a busier and more lucrative pattern of riding, but on the whole I think it unlikely that his income would have increased to any significant extent. I accept that for most jockeys the work is not lucrative: p. 123. I think it likely that the plaintiff's income would have tended to average more than his pre-accident level of earnings over the balance of his riding career, although it may have taken some time to build up to that point. Overall, I think a reasonable average figure for earnings after expenditure (but before tax) for the plaintiff for the balance of his career (assuming he was still working as a jockey) would have been $8,000 per year, but allowing for the tapering feature to which I have referred I think a figure in respect of the period up to judgment (roughly three years) should be $22,500. Some allowance should be made for income tax on this figure, for which I will deduct $7,500, leaving a balance of $15,000. There is evidence that the plaintiff had done some racing since the accident, and although there was no evidence about his earnings from that, counsel for the plaintiff very fairly invited me to make a deduction of $1,250 to cover that, and I will do so. That leaves a figure of $ 13,750.

1. [63]
   There is a question of whether that figure should be further discounted to allow for the vicissitudes of life, both of a general nature and specifically because of the risks associated with horse racing. I think some allowance should be made for these, although in respect to past loss it should be a fairly moderate one. A discount of 5% with some rounding will produce a figure of $13,000 which I will allow for loss of earnings as a jockey until judgment. In respect to the future, a gross annual loss of $8,000 is the equivalent of $5,600 after tax, or about $108 per week (bearing in mind that this would have been earned as well as an income from the Surf Club). That discounted at 5% per annum for 7 years is $33,264. That figure however should be discounted to allow for the vicissitudes of life, and I think a larger discount of 15% should be allowed for the future, giving, with some rounding, future economic loss in respect of the loss of work as a jockey of $28,300.

1. [64]
   With regard to loss of earnings from the surf club, counsel for the plaintiff provided a schedule of calculations for past economic loss based on those earnings. I am happy to adopt this approach, although the figures need to be brought up to the date of judgment and adjusted. The plaintiff's calculations of economic loss are based on an average earning of $402.04 after tax per week for the period 1 July 1997 to 1 November 1997, $7120.13 for 17.71 weeks (ie 17 weeks and 5 days). This figure appears to be derived from the plaintiff's 1998 group certificate from Alex Supporters Association Inc in Exhibit 8, which showed gross income of $8,633 and tax instalments deducted of $1,512.86. However, it is difficult to reconcile these figures with the year to date figures given on the plaintiff's pay slip for the period 20-26 October 1997 of $6,389.87 gross, and $1,119.71 tax, giving income net of tax of $5,426.40. Although this pay slip is for the week before the week of the injury so there would have been an additional week worked, the plaintiff would not have been paid something over $2,200 for that week. By way of comparison, the 1997 tax return shows gross income from Alex Supporters Association of $11,338, not much more than the year to date figure of $10,549.68 in the pay slip of the week ending 15 June 1997: Exhibit 8.

1. [65]
   I think the explanation must be that the 1998 group certificate records payments other than for the period prior to the date of the accident; either the plaintiff was paid some sick pay after the accident, or the later payments relate to the period when the plaintiff tried to return to work in February 1998 as mentioned by Dr. Winstanley in Exhibit 22. Whatever the explanation, I do not think it appropriate simply to divide figures in the group certificate by 17.71 to obtain the average weekly earnings for the plaintiff prior to the accident. If the figure in the pay slip that I have mentioned, $5,426.40, is divided by 17, this gives a weekly average of $319.20. On the other hand, if the weekly net payments from the 3 pay slips after 1 July 1997 but before the accident which appear in Exhibit 8 are averaged, they come to $336.88. Because of the somewhat irregular nature of the plaintiff's employment, this is probably not something that I need to be too precise about, but I think that the figure of $402.04 which is the basis of the plaintiff's calculations is not justified by Exhibit 8 as a whole, and I propose to use instead a figure of $337. The period from 2 November 1997 to 30 November 2000 is 160 weeks, which at $337 per week comes to $53,920. This figure needs to be increased to allow for tax rate changes after 1 July 2000, for which I allow an additional $200. So notional past net income is $54,120.

1. [66]
   Projecting the actual earnings after 1 July 2000 to date of judgment is more difficult, because the plaintiff was receiving workers' compensation for the period 24 July 2000 to 15 August 2000: Exhibit 28, p. 74. I think it more realistic to calculate the actual earnings in the current financial year on the basis of the average for the last financial year, which came to $338 net per week: Exhibit 10. Allowing for the change in tax rates, this was the equivalent of $347 per week after 1 July 2000. On this basis in the 22 weeks the earnings would be $7,634. With this adjustment and allowing for the $100 for delivering pamphlets, the actual earnings comes to $33,628.11 ($8,392.32 + $165 + $16,996.79 + $340 + $7,634 + $100). This leaves a balance of $20,491.89, which I will round off to $20,500. A further 6% should be allowed in the ordinary way to cover loss of employer's superannuation contributions, an amount if $1,230. Past economic loss therefore comes to $34,730. Interest should be allowed on the balance after deducting the net amount of workers' compensation weekly payments, $18,736.80 (Exhibit 28) less the agreed Fox v. Wood amount of $1,420.55. Interest is allowed on $17,413.75 at 4% per annum for three years, $2,090.

1. [67]
   During 1999-2000, the plaintiff's after tax income from the surf club came to approximately $17,500, or $338 net per week: Exhibit 10. This is effectively the same as the earning rate prior to the accident. Although the plaintiff may be working longer hours at the surf club to earn this money, the fact that he is no longer working as a jockey means that he has time available to work these additional hours. I think that for practical purposes, so long as the plaintiff remains at the surf club, the only significant future economic loss is that associated with his loss of earnings as a jockey. I should make a lump sum allowance to accommodate the fact that the plaintiff will be at risk in the labour market now if he, for any reason, has to leave the surf club and obtain other employment. The plaintiff's experience is in unskilled labouring work, and if he cannot do any significant lifting in connection with such work, his ability to find suitable employment will be significantly curtailed. I think some allowance should be made for this, and I will allow $20,000. The total of future economic loss is therefore $48,300.

1. [68]
   A figure of $5,000 has been agreed for past gratuitous care, and counsel have both invited an award of $725 interest on this figure, which I will allow, although it is at a slightly higher interest rate than I usually allow. An amount of $255.35 is recoverable by the Health Insurance Commission for medical expenses, and I will allow that as special damages: Exhibit 29. Other items which were agreed are special damages paid by WorkCover, $8,622.98; physiotherapy expenses of $45; pharmaceutical expenses of $175; travelling expenses of $475; counselling expenses of $340, and the Fox v. Wood component of $1,420.55. I will allow interest on the items where the plaintiff has been out of pocket, $1,035 at 4% for 3 years. The plaintiff will have a continuing need for medication at a cost of $110 per annum (p. 22), and no doubt there will be visits to general practitioners from time to time in connection with the proper management of his condition. On the whole I think a reasonable allowance for this is $4,000.

Summary

1. [69]
   Accordingly, I assess damages as follows:

1. [70]
   There will therefore be judgment that the defendant pay the plaintiff $134,220 which includes $3,356 by way of interest. I will hear submissions in relation to costs.