Do racecourses owe a duty of care to jockeys?

Posted by Malcolm Johnson on

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This was the question that came up in a recent case where an experienced, professional jockey sustained a serious injury at the first hurdle of the first race of the day in November 2006.

The jockey's horse careered sharply to the right after taking a fence, 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 jockey sought damages against the management of the racecourse,  Jockey Club Racecourses Limited, relying on regulation 4 of the Provision and Use of Work Equipment Regulations 1998.

These regulations stipulate that work equipment should be constructed or adapted to be suitable for the purpose for which it was provided. The Claimant said that the hurdle 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. He also found that it was a very unusual type of fall which would not have been expected or reasonably foreseen. The Claimant appealed to the Court of Appeal.

Lord Justice Longmore said that the question was whether the judge was correct to use the concept of reasonable forseeability in the classic common law manner when assessing liability under the regulations, which were Regulations 3 and 4 of the Provision and Use of Work Equipment Regulations 1998. Those regulations were implemented in line with the United Kingdom's obligations under the Framework Directive on the introduction of measures to encourage improvements in the safety and health of workers (89/391/EEC) and the Use of Work Equipment Directive (89/655/EEC).The concept of reasonable foresight was introduced into the UKs domestic Regulation but was absent from the Directive. The question therefore arose as to whether the Regulations had correctly implemented the Directive.

The words "reasonably foreseeable" fell to be construed so as to be consistent with the limited concept of foreseeability envisaged by the Directive. Article 5(4) allowed member states to opt to provide for the exclusion or limitation of an employer's responsibility, but it was the Defendant's job to prove that any relevant accident was due either to unforeseeable occurrences beyond the Defendant's control or to exceptional events. The fact that an injury occurred in an unexpected way would not excuse the Defendant unless he could show further that the circumstances were "unforeseeable" or "exceptional" in the sense given to those words by the Directive.

The Directives and therefore the Regulations existed in a world different from the common law. In this case, it was difficult to see what unforeseeable circumstances or exceptional events could be relied on. The padding of the uprights of the guard rail could have been thicker; the hurdle could have been placed at a greater distance from the guard rail. The Defendants could not show that if either or both precautions had been taken, the Claimant would inevitably have suffered the injury which he did.

The appeal would be allowed and judgment entered for the Claimant. This is another case that demonstrates how health and safety legislation is weighted towards employees rather than against them. It is not simply a matter of whether the employer is blameworthy, in the sense that most people would understand. The regulations are designed to encourage employers to go that extra mile.

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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