Hide v The Steeplechase Company (Cheltenham) Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice McFarlane,Lord Justice Davis |
| Judgment Date | 22 May 2013 |
| Neutral Citation | [2013] EWCA Civ 545 |
| Docket Number | Case No: B3/2012/1939 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 2013 |
[2013] EWCA Civ 545
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Mcfarlane
and
The Right Honourable Lord Justice Davis
Case No: B3/2012/1939
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
HIS HONOUR JUDGE HARRIS
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Sharp QC & Miss Anna Symington (instructed by Withy King Solicitors) for the Appellant
Mr Peter Cowan (instructed by Messrs DWF) for the Respondents
Introduction
According to HHJ Charles Harris QC, Cheltenham Racecourse is widely regarded as the best steeplechase course in England. I see no reason to doubt this accolade in any way. Unfortunately Mr Hide, an experienced professional jockey who won his first race at the age of 17, sustained a serious injury at the first hurdle of the first race of the day on 11 th November 2006.
He was riding a horse called "Hatch a Plan". The race was 2 miles in length and included several hurdles. A guard rail about 4 feet high ran around the outside of the track primarily to contain loose horses. A rail also ran intermittently on the inside of the track. Due to their intended purpose, the rails were built to be quite strong; they were made of PVC or some plastic material and secured into the ground by upright posts also of plastic on top of metal spigots. The upright posts were padded for 20 to 25 yards following each hurdle. Mr Linley, the Senior Inspector of Courses for the British Horseracing Authority, gave evidence that the padding was 2 to 3 centimetres thick.
The first of the hurdles was located approximately 100 yards from the start. It was 20 yards wide and set up towards the outside of the track; there was a distance of approximately 4 feet between the outside edge of the hurdle and the guard rail. The hurdle itself was described as being "fairly modest". The total width of the track where the hurdle was positioned was 46 yards.
During the race, Mr Hide jumped over the hurdle towards its right hand side approximately 13 feet 6 inches (or 4 and a half yards) from the outside guard rail. After clearing the hurdle, his horse stumbled and fell. The horse careered sharply to the right, which caused Mr Hide to fall from his mount; he hit the ground and then moved (at speed) side ways or backwards into contact with one of the guard rail upright posts hitting it with his left hip. The judge found that it was a very unusual type of fall which would not have been expected or reasonably foreseen. Mr Hide sustained a fractured pelvis and a head injury. Happily he has made a good recovery. Damages have been agreed at £58,000 if the defendant is liable.
In an action which was not commenced until 9 th November 2009, and regrettably not brought to trial until June 2012, Mr Hide sought damages against the management of the racecourse. Three bodies were joined. The second defendant, Jockey Club Racecourses Limited, is the correct defendant and nothing turns on the joinder of the other two defendants.
Mr Hide relied largely upon regulation 4 of the Provision and Use of Work Equipment Regulations 1998 ("the Regulations") which provided that work equipment is to be so constructed or adapted as to be suitable for the purpose for which it is provided.
Mr Hide's contentions before the judge were that the hurdle, not itself the subject of criticism, was placed too close to the perimeter railing, which was itself said to be too unyielding and/or insufficiently padded. The judge dismissed the claim holding that both the hurdle and the guard rail were suitable equipment.
Rules governing horse racing
As a licensed course, Cheltenham had to comply with General Instructions issued by the British Horseracing Authority ("the BHA"). These instructions take into account any input from the Professional Jockey Association, the National Trainers Federation and the Racecourse Association. Before the season began in October Mr Linley spent 3 hours at the course measuring fences, checking the rails and positions of the hurdles. His report of 24 th October said:-
"The course was in great condition and a real credit to all the Ground staff … fences in good order as always well presented."
A second report of 10 th November said that the courses "were in excellent condition … fences in good order". In his evidence Mr Linley said that he considered the set-up to be safe and that the conjunction of the hurdle and rail was suitable. There was no indication that the BHA General Instructions had not been complied with.
The running rails and the uprights had been supplied by Duralock UK Ltd, a market leader in Western Europe and the Middle East. They had been tested by the Rubber and Plastic Research Association at Shrewsbury and approved by the BHA. The judge said that there was no expert evidence about the effectiveness of the padding but the BHA General Instructions did contain the following provisions:-
"Padding of a type approved by the Inspector of Courses is to be applied to the uprights of running rails on the inside for a distance of 30 yds AFTER each fence or hurdle. If there is a possibility of horses jumping either side of a fence or hurdle, the uprights of both running rails are to be padded.
Running rails define the extent of the course … [they] must be of a design approved by the Stewards of the Jockey Club … unless horses do not usually run against them during the course of a race … Where a hurdle has an adjacent inner running rail, a lay-by 20 yards long and 2 yards wide must be provided on the landing side, unless otherwise agreed by the Inspector of Courses."
The judge summarised the position in this way:-
"24. So the position is that the claimant was not able to demonstrate any breach of any of the provisions or stipulations which the professional bodies which administer racing and which represent those who take part in it had considered it necessary to lay down. There was no evidence of any complaints about the hurdle, its position, the running rails or their padding, either before or after the accident, from jockeys, inspectors or officials. Although some falls in hurdle races were of course to be expected, what happened to the claimant was on the evidence unusual and unexpected. As the claimant himself said, "I am not aware of a similar accident to another jockey"."
The Judge's conclusions
Having set out the relevant terms of the Regulations he then reached the following conclusions:—(1) both the railings and the hurdles were work equipment from the point of view of the employees who put them up; (2) Mr Hide used the hurdle but not the railings; (3) there was nothing wrong with the hurdle; (4) the railing was a suitable railing; (5) Mr Hide had not established that the padding was unsuitable; and (6) the relative disposition of the hurdle and the railing did not make either of them unsuitable for the purpose for which they were used or provided. He described the question whether the relative disposition of the hurdle and railing rendered them unsuitable for the purpose for which they were used or provided as lying at the heart of the case and said this at his point of decision:-
"51. The answer must I think be found in the phrases "suitable for the purpose for which it is used or provided" and "reasonably foreseeable". The purpose of a racing obstacle is to provide a test of nerve and skill for horse and rider and thus a pleasure for the spectator, not to mention profit for the betting industry. In deciding what is a suitable jump or course layout, a course designer can and should bear in mind what is reasonably likely to happen. Is there a reasonably foreseeable source of harm? This must be a matter of judgment and degree. If a jump was so dangerous as to make injury probable, as opposed to merely foreseeable, then it would, strongly arguably, be unsuitable within the meaning of the regulation.
52. The concept of reasonable foreseeability, a classic common law phrase, is imported in regulation 4. This, in my judgment, enables the manager of a racecourse appropriately to consider not whether a layout is a conceivable or "foreseeable" cause of injury, but whether the injury is "reasonably foreseeable", viz whether the injury is likely or unlikely in the circumstances. If in the view of those with knowledge and experience of racing a layout is not thought likely to be a cause of danger, then it is likely to be "suitable". It might also be observed that regulation 4(4) uses the expression suitable in any respect which it is reasonably foreseeable "will", not "may", affect health and safety. It must be harder to establish that a state of affairs will affect safety than that it may.
53. This racecourse was, I find, administered by experienced and conscientious people who were alive to safety issues. They did "have regard to the working conditions and to the risks of safety" which existed (regulation 4(2)). Their intention was, as was the purpose of the regulations, "to promote a culture of good practice with a view to preventing injury" (per Lord Hope in Smithsupra at paragraph 15). The course was invigilated by an inspectorate with similar qualities. Mr Hide called them good people. The hurdle and rails were erected under the hand and eye of a suitably experienced and knowledgeable groundsman who understood the behaviour of horse and rider. It was used by experienced jockeys, always alive to the risks of falling from or with their horses. The jockeys have safety representatives.
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