Risk is still part of sport
Can a collision between two horses in a race lead to one of the jockeys being found to be negligent?
This week has seen the judgment delivered in the horse racing of action Freddy Tylicki against his former fellow jockey, Graham Gibbons. As the press has reported, his action was successful and as The Times commented “the payout is certain to run into millions”. Another issue flagged in the media was the role of the British Horseracing Authority (BHA) as its stewards at Kempton Park ruled following the race back in October 2016 that the collision that led to Mr Tylicki, and his horse Nellie Dean falling was accidental. Even though the BHA was not a party to the accident, it appears that both Mr Tylicki and his solicitor were critical of the stewards' enquiry.
Some may find it surprising that a collision between two horses in a race, and this was a flat race where the horses were travelling at speed, can lead to one of the jockeys being found to be negligent. It may be felt that such a finding has potentially serious consequences for horseracing and indeed sport itself. It was argued by the defendant that there were good policy reasons for the court to be ‘extremely reluctant’ to make a finding against Mr Gibbons and that it should take a ‘robust approach’ as a finding of negligence would ‘open the floodgates’ and make it very difficult for any jockey, indeed any sportsman or woman, to be confident they would be able to compete as hard as they can to win for fear that if somebody were injured they could be sued. Just as in the Smoldon (1997) decision, that argument was rejected. Further, HHJ Walden-Smith made it perfectly clear in her judgment that her finding does not set a precedent either within horseracing or sport generally. Her finding was fact-specific. Her decision was based upon the circumstances of the case in front of her and the evidence that she heard over some four days.
She cited the benchmark decision in Caldwell v Maguire & Fitzgerald (2001) which established the principles to be applied in such cases and in particular that liability would not flow from proof of no more than an error of judgment, from mere proof of a momentary lapse in skill. Further, that breach of duty would be difficult to prove absent conduct that pointed to ‘reckless disregard for the fellow contestants’ safety’, (Holland J, Caldwell).
Walden-Smith was faced with assessing what had happened over a matter of seconds in a race some five years earlier. She was assisted by hearing evidence from not only the claimant and defendant but two other jockeys in the race, expert evidence which included that of Ryan Moore for the claimant and extensive video footage of the race itself from all angles. It would appear that the claimant came across well, which could not be said for the defendant. The judge noted that his witness statement did not cover that he had lost his licence to ride in December 2016 following a positive test for a metabolite of cocaine after another race at Kempton, a suspension that was increased when he was found to have coerced an apprentice jockey to provide a urine sample which he had passed off as his own. He had previously been banned, albeit almost nine years prior to the incident, for failing a breath test at a racecourse, being the first jockey in Britain to have been found over the drink-drive limit when taking a breath test at a course and had also been imprisoned for drink driving in September 2019. There was also witness evidence (from another jockey) that when sitting close to the defendant in the weighing room on the day of the incident, there was a ‘strong smell of alcohol’ on his breath. The defendant denied that he was drinking that day but did accept that he might drink on days that he was riding. As the judge noted, the history did go to his character and credibility.
The defendant also seemingly argued that there was ‘some sort of conspiracy’ between the three jockeys giving evidence in support of Tylicki, the third jockey being his expert, Ryan Moore, (who many may fondly remember for his Derby wins in 2010 and 2013). Moore’s evidence was also robustly challenged, the defendant even contending that his evidence was at times ‘ridiculous’ and successfully secured an order that they be allowed access to his notes relating to the preparation of his report. The judge however found him to be ‘an extremely straightforward witness’ who was using his expertise to assist the court and the judge accepting that whilst he had never given expert evidence before, he was a ‘true expert in flat racing with a full understanding of the work of the flat race jockey’. His evidence was clearly preferred on the incident itself, his view being that the defendant did essentially look to “close the gate” on the claimant as he came up on the inside, a move it was found he was entitled to make as the gap was big enough. The judge did not accept that the defendant was unaware of the claimant coming up on the inside, that the claimant had control of his horse and was riding as planned. Jockeys have to be aware of what is going on around them for as Moore said, ‘otherwise racing could not take place’. It also had to be borne in mind that this was a highly unusual situation where four horses fell in a flat race. None of the experts called could recall this happening, save possibly at a track in Doncaster in the 80s when there was subsidence affecting the track and The Derby in the 60s.
The judge found that Gibbons had a reckless disregard for Tylicki’s safety. That this was not a mere lapse in judgment. She made the specific point that the threshold for negligence in such circumstances is high. It is not recklessness that is needed but certainly reckless disregard and Gibbons had demonstrated this by moving his horse, Madame Butterfly, across to the rail closing off Tylicki and Nellie Dean with tragic consequences for Tylicki.
What lessons can be taken from this? Walden-Smith recognised that horseracing carries risk and that this was part of the sport, echoing findings in other cases such as Wells in respect of off-road motorcycling and Poppleton (climbing). Such cases invariably turn upon their specific circumstances and the strength of the evidence, both lay and expert, put before the court as well as the strategy employed.
From the judgment, it would appear the claimant team invested heavily in getting a strong body of lay evidence so that it could challenge the contention that the court should pay close heed to the finding of the BHA stewards enquiry and also on expert evidence with the bold decision to persuade Ryan Moore to get involved, someone who had never before fulfilled that role. Moore clearly came across as someone who wanted to assist the court and was candid enough to advise it was a “horrible situation” and “lose-lose either way”. He also summed up what most people save lawyers feel about being embroiled in these cases, that the “whole thing has been tiresome & boring & sad”. The decision to instruct him was vindicated by the judge’s comment that he was a “true expert” and, of course, the judgment.
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