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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Tylicki v Gibbons [2021] EWHC 3470 (QB) (21 December 2021) URL: http://www.bailii.org/ew/cases/EWHC/QB/2021/3470.html Cite as: [2021] EWHC 3470 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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FREDERIK TYLICKI |
Claimant |
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- and - |
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GRAHAM GIBBONS |
Defendant |
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PATRICK LAWRENCE QC (instructed by ASHFORDS LLP) for the Defendant
Hearing dates: 29 and 30 November, 1, 2 and 3 December 2021
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Crown Copyright ©
HHJ KAREN WALDEN-SMITH:
Introduction
The Parties
The Witnesses
The Law
"In an action for damages by one participant in a sporting contest against another participant in the same game or event, the issue of negligence cannot be resolved in a vacuum. It is fact specific." (per Judge LJ, as he then was, at paragraph 30 of Caldwell)
"What they failed to do was sufficiently to allow for the presence of the horse ridden by Mr Byrne on their inside. If they had done precisely what they did do, at a time when their horses were a few additional yards further ahead of Mr Byrne's mount than they were, no error of judgment would have taken place and their riding would have been commended. In exclusively racing terms they were right to go for the inside lane. Their error in the heat and commitment of the race was to misjudge the exact opportunity that was available to them to take. They did not appreciate that Mr Byrne's horse had not gone backwards as far as they thought it had. As they assumed that he was no longer in contention for the inside line, they did not physically look out for him. Their assumption was wrong, in real terms by no more than a few yards. They made what the Jockey Club Stewards decided was a breach of the rules of racing and what Holland J. considered was a lapse of judgment a finding that a jockey has ridden his horse in breach of the rules of racing does not decide the issue of liability in negligence." (per Judge LJ in paras 33 and 34)
(1) Each contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants. As Barwick CJ found in the Australian case, Rootes v Shelton [1968] ALR 33: by engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and if it does, its extent, must necessarily depend in each case upon its own circumstances.(2) That duty is to exercise in the course of the contest all care that is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury to such fellow contestants.
(3) The prevailing circumstances are all such properly attendant upon the contest and include its object, the demands inevitably made upon its contestants, its inherent dangers (if any), its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant. Thus in a particular case of a horse race the prevailing circumstances will include the contestant's obligation to ride a horse over a given course competing with the remaining contestants for the best possible placing, if not for a win. Such must further include the Rules of Racing and the standards, skills and judgment of a professional jockey, all as expected by fellow contestants.
(4) Given the nature of such prevailing circumstances the threshold for liability is in practice inevitably high; the proof of a breach of duty will not flow from proof of no more than an error of judgment or from mere proof of a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race. Such are no more than incidents inherent in the nature of the sport.
(5) In practice it may therefore be difficult to prove any such breach of duty absent proof of conduct that in point of fact amounts to reckless disregard for the fellow contestant's safety. I emphasise the distinction between the expression of legal principle and the practicalities of the evidential burden.
"The demands on professional jockeys to ride at all are very heavy. The require skill and physical and mental courage. To win, beyond skill and courage, they need determination and concentration, the ability rapidly to assess and re-assess the constantly changing racing conditions, and to adjust their own riding and tactics accordingly a quality that must depend in part on experience and in part on intuition or instinct.
Accidents and the risk of injury, sometimes catastrophic, both to horses and to riders, are an inevitable concomitant of every horse race certainly over hurdles"
"The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one. It will not easily be crossed."
The Race on 31 October 2016
The Stewards Enquiry on 31 October 2016
"I just sat second to Mr Gibbons, you know basically, from when I left the gates basically. I would say Mr Gibbons horse is lugging a little bit all the way down the back-straight and he moved back in, nearly to the rail. He wasn't very far off the rail when Mr, and I'm not quite sure. He's being a bit ambitious I think, I'm not sure but
[he was asked by the Stipendiary Steward "who do you think is being ambitious"]
I thought Mr Tylicki. But it was, to be honest with you, he was chancing it on a bit, there probably was room there at some stage but we were going into a right-handed bend. The chances are the horse in front of him was going to go back to the right, he wasn't going to keep going left, he wasn't slightly lugging I thought and as I say, he ran out of room and he obviously clipped the heel and fell underneath me and after that, I ran my own race.
[after Mr Gibbons gave his account]
I think Mr Tylicki thought Mr Gibbons was going to stay, Sir, keep going away but chances are when you are going into a right-handed bend, the horses are going to drift back to the right I thought he was taking a chance going in there. But look, I was just riding my own race."
"Well, pretty much what Pat said. You can see my filly, she's down the back straight and on the bend, she's just doing "that" (gestures with hand) but she's never wandered more than half a horse width off the rail and I mean, I, all I heard was "Gibbo" and that was the first time I was aware that there was a horse's neck or even a head. In my opinion, it shouldn't have been in there. I wasn't expecting it to be there because there wasn't even room for him and I just heard "Gibbo" and that's what made me look. The last thing I heard was "Gibbo" and it was too late. When I looked, he was on the floor but in my opinion there was never room for him to go there in the first place.
[he was asked by the Stipendiary magistrate "OK, so you weren't aware of him at any stage until "]
Until he shouted me, I wasn't aware he was there, and like, and I only heard it just before he was on the floor. That's what made me look and I wasn't aware he was there and I was surprised that there was a horse there because there was not room for a horse [Yes] His horse, I don't think he went there intentionally but mine had half a look, his horse half striding into half a gap that wasn't really there
[Mr Cosgrave interjected with his comment set out above about horses drifting back to the right]
[he was asked by the Stipendiary magistrate whether he felt his heels being clipped]
No, all I heard was "Gibbo" and when I looked, that's what made me look, because I didn't realise he was there. I thought, there couldn't possibly be one because I was, that far off the fence and when I heard "Gibbo" and I looked, he was going to the ground anyway, he was gone. That was my first look. [Yes] All I heard was "Gibbo" and he was gone. My first look to the right was when I heard him give a shout but I was completely surprise that there was a shout because I didn't expect a horse to be there. And I didn't think a horse should be there because there wasn't enough room for him there, in my opinion."
The Incident
"Running green"
The Video Footage
"On watching the race recording, my impression is that Madame Butterfly slowed fractionally as she entered the bend and then Nellie Deen's position moved further into the narrow gap between the rail and Madame Butterfly. I suspect this was not where Mr Tylicki had planned to be."
Mr Crowley said that he could see quite clearly that there was sufficient racing room to the inside of Madame Butterfly for Nellie Deen to move up and Mr Cosgrave said that there was sufficient room for Nellie Deen to go up the inside of Madame Butterfly and that, in his view, Mr Tylicki was perfectly entitled to be there, alongside the rail, in the way that the race had unfolded. It appears that Madame Butterfly slowed at that point which enabled her to conserve energy and meant that Mr Gibbons was in control of the pace.
The Collision
"If GG manoeuvred MB across to the rail either at all or without checking for the presence of a horse on his inside then in my opinion he would have been in breach of the Rules which might fall within a range of Careless to Dangerous riding."
In my judgment, that is precisely what Mr Gibbons did.
Conclusion