Assignment for Business Law BFA 506, case of Dodge v Snell

1. Law BFA 506
Assignment 1
Tony Park

2. Dodge v Snell [2011] TASSC 19
 Background




28th Jan 2007
Plaintiff and Defendant were jockeys in
Moorilla Stakes at Elwick Racecourse.
Defendant was on the outside position,
passed 2 horses and attempted to pass 5
others.
In that attempt bunched those horses to
the barrier

3. Dodge v Snell [2011] TASSC 19
 Background



This pushed another horse into another,
who then stumbled and caused the
plaintiffs horse to stumble and fall.
The horse died.
The plaintiff fell and sustained injuries that
brought his professional career as a jockey
to end.

4. Dodge v Snell [2011] TASSC 19
 We
will use the pIRAC system
 Parties
 Issue
 Rule
 Analysis
/ Application
 Conclusion

5. People
Who was involved

6. People
 Plaintiff
Kevin John Dodge
Past Jockey, now invalid.
 Defendant
Simon Snell
Jockey

7. Issues in law
What does the plaintiff want

8. Issues in Law
 The
plaintiff claims that the defendant
was negligent in his riding of his horse

9. Issues in Law
 Rode
his mount inwards when
insufficiently clear of Colonel Parker and
 when he knew or reasonably should have
known that in doing so he was exposing
other horses and riders to a risk of injury.

10. Issues in Law
 Mr
Snell (the defendant) rode his mount
towards the rail when he was insufficiently
clear of the horses on the inside, causing
a cramping of these horses and the fall of
Mr Dodge (the plaintiff) was caused by
this.
 Mr Dodge is suing for damages incurred

11. Issues in Law - Damages
 Loss
earning capacity $ 470,898
 Domestic and personal care $ 169,119
 General Damages $ 80,000
 Other
 Total
$ 772,895.76

12. Rule
What legal rules need to be looked at.

13. Rule
Australian Racing Rules
1. AR 135 All jockeys will try to win the race
2. AR 136 If a horse ;
1.
2.
3.
Crosses another horse to interfere with it or
any other horse
Jostles or interferes – unless caused by some
other horse
Such horse will be disqualified from the race

14. Rule
Australian Racing Rules
AR 135 All jockeys will try to win the race
AR 136 Horse will be disqualified from the race

15. Rule
Australian Racing Rules
 Defendant
 Only
found guilty of careless riding
a guide to Court assessment of
negligence

16. Rule – other
 The
rules we are investigating are
Negligence and Duty of Care by the
defendant to the Plaintiff.

17. Rule
Rules that need to be investigated to prove
negligence ;
 Duty of Care
 Breach
 Harm
of duty
caused by breach

18. Rule – Civil Liability Act (2002)
Tas
Rules that need to be investigated for a
defence are ;




Could it have been foreseen by Plaintiff
Was the response reasonable
Did Plaintiff volunteer the risk
Was the risk obvious

19. Rule – Civil Liability Act (2002)
Tas
Major defence of Defendant

Was that the activity was a recreation activity.

Need to look at Legislation for definition of
recreation – and if not clear, to the discussion
in Parliament deliberations.

20. Analysis / Application
Lets look at the relevant rule and apply to facts of
the case

21. Analysis - Negligence
 The
Racing Enquiry found that the
defendant did not allow the 2 lengths of
space before he moved.
 Because of that he was found guilty of
dangerous riding

22. Analysis - Negligence
 Defendant
acknowledged that he did
have duty of care.

23. Analysis - Negligence
 Has





Defendant breached Duty of Care
Could have delayed moving over
No net benefit other than trying to win
Exposed others to harm (CL Act s11(2)(d)
Exposed plaintiff to unnecessary risk Rootes
v Shelton at 392
Did breach duty of care

24. Analysis - Negligence
 Could
it have been foreseen
 “Plaintiff
does not need to prove that the
precise manner in which his injuries were
sustained were foreseeable : Chapman V
Hearse (1961) 106 CLR”

25. Analysis - Negligence
 Reasonable

response
Chesterman J Kleise V Pelling (unreported,
QSC, 4 June 1998) if
rider not take
reasonable care, then negligent.
 Reasonable response level or likely
hood that risk would occur Wyong V
Shirt (1980) 146 CLR 40 and difficulty
wether you could avoid it.

26. Analysis - Negligence
 Reasonable




response
Need to look at all circumstances that
Jockeys are engaged – Rootes v Shelton
(1967) 116 CLR at 389
Jockeys not expose others to additional risk
Taylor J in Rootes v Shelton at 392
Racing Rule 136 (1) leave 2 lengths
Chesterman J Kleise V Pelling (unreported,
QSC, 4 June 1998) if rider not take reasonable care,
then negligent.

27. Analysis - Negligence
 Causation




Defendant agreed his conduct caused the
fall
Plaintiff proved that the action of
negligence by the defendant caused the
fall
Breach of duty was a necessary element of
the occurrence of harm
Defendant negligence caused Plaintiffs
injuries.

28. Analysis

Voluntary assumption of Risk



Volenti non fit injuria
Did plaintiff understand and agree to incur the
risk. Osborne v London and North Western
Railway Company (1888) 21 QBD
Need 3 elements by Plaintiff to accept risk
McClellan CJ in Carey v Lake Macquarie
Council [2007] NSWCA 4 at 85
Perceived existence of danger
 Appreciated it
 Freely agreed to accept the risk


29. Analysis
 Voluntary




assumption of Risk
Knowledge of the risk – to be pushed over
Consent to the risk – no
Consent to the negligence of moving at 1
¼ lengths rather than the 2 lengths by
regulation.
No

30. Analysis
 Was


the risk obvious
If obvious taken as acceptance by plaintiff
Under CL Act
 Obvious
to reasonable person
 Common Knowledge
 May not be prominent
 But not obvious just because a warning.

31. Analysis
 Was




the risk obvious
Start at what eventuated, identify and
defined with precision ; Cary at par [91
Then see if a notional person comprehends
what occurred :Fallas v Mourlas (supra), per
Tobias JA at (97) who has the knowledge
and experience of the plaintiff Great Lakes
Council v Dederer [2006] NSWCA 101.
Comprehend 2 lengths – not 1 ¼ lengths.
Could not reduce the risk voluntarily

32. Analysis
 Was



the risk obvious
Comprehend 2 lengths – not 1 ¼ lengths.
Could not reduce the risk voluntarily
So could not agree to the risk that
eventuated
 The
defence of volenti fails

33. Analysis - Negligence
 Areas
of negligence would normally be
addressed by the Civil Liability Act, (CL
Act)
 Under that ACT there is a defence of
“dangerous recreation activities”
 There
was a foreseeable risk of harm
 The risk was insignificant
 A reasonable person would take precautions
to avoid the risk

34. Analysis - Negligence
 The
question that the Justice brought up
was this a valid defence – was it a
recreational activity.
 “As a professional jockey, racing on this
occasion in the course of carrying out his
occupation, the plaintiff was not
engaged in a recreational activity.
 The exclusion in s20 does not apply.

35. Conclusion
After consideration of the legal rules and how they
are attributed in a legal way to the facts.

36. Conclusion
 The
statutory immunity pursuant to the CL
Act s20, replied upon by the defendant
does not apply as the plaintiff was not
involved in a recreational activity.
 The
defendant is liable for his breach of
duty.
 Total claim $ 772,895.76

37. Questions
A review of what may have been learnt

38. Question 1
From the information, with the case won by the
plaintiff, could the owner of the horse also sue the
defendant for loss of earnings of the horse that had
died.

39. Question 2
Did the defendant have a duty of care to the horse
that died that could have been taken by Animal
Organisations like RSPCA.

40. Question 3
Did the Stewards enquiry ,have a direct effect on
the court case – did the Judge have to take
decisions of this enquiry into account.

41. Question 4
Should the stewards enquiry relook at their decision,
to see if 4 weeks suspension was inadequate, to
such a now proven serious action by the plaintiff.

42. Question 5
Are the lines blurred between recreation activities
and professional ones ?
What about AFL, Olympics

43. Law BFA 506
Assignment 1
Tony Park
Available at
www.businessgardener.com.au/unilaw1.pdf
.htm