JOHN MCSHANE AGAINST BURNWYND RACING STABLES LIMITED
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 70
PD758/13
OPINION OF LORD GLENNIE
In the cause
JOHN McSHANE
Pursuer;
against
BURNWYND RACING STABLES LIMITED
Defenders:
Pursuer: A Graham QC, Thompson; Digby Brown LLP
Defender: A Smith QC, Rolfe; Simpson & Marwick
5 June 2015
Introduction
[1] This case concerns an accident at the defenders’ racing stables on 25 March 2011. The pursuer was employed there by the defenders as trainer or assistant trainer. He was exercising a horse (“Psalm 23”) on the training gallop. At the far end of the gallop, just before the third or final bend, his horse fell and landed on him. He was badly hurt. His left arm was injured and he has been left with a permanent impairment to his left side. He sues the defenders on the basis, in short, that the gallop was unsafe and that that was the cause of the fall. His claim is based on negligence at common law and/or breaches of the Workplace Regulations (the Workplace (Health, Safety & Welfare) Regulations 1992) and/or the Work at Height Regulations 2005.
The pursuer
[2] At the date of the accident the pursuer was 38 years old. Much of his adult life had been spent dealing with horses in one way or another. He was registered with the Jockey Club (now the British Horseracing Authority) in March 1995 and thereafter worked as a stable lad and head lad for a number of different stables. During this time he also rode as an amateur jockey. He obtained positions as assistant trainer in 1998 and again from 2000 to 2006, and started up his own yard towards the end of that time. He obtained his first trainer’s licence in April 2009 when he was employed as a trainer at Ashgrove Racing Stables. When that stables closed down, he moved to another stables and obtained a licence to train there in October 2009. For one reason or another things did not work out as anticipated and, when he was contacted by Mr Reid and offered the job of trainer at a new racing stable which he was in the course of constructing, he leaped at the opportunity. He began work there in about January or February 2010.
Mr Reid and the racing stables
[3] Robert Reid was a director (perhaps the sole director) of the defenders. He did not give evidence. Accordingly, what follows is derived from the evidence of others and inferences to be drawn from that evidence. His main business occupation seems to have been in the construction industry. He had bought land at Burnwynd Farm, Glassford, Strathaven, and was building a house on it. He had no riding experience nor any particular knowledge of horses, but he was keen to have a go at setting up in the business of training racehorses. To this end, he incorporated Burnwynd Racing Stables Limited (the defenders) and, through that company, built or installed at Burnwynd Farm a stable block big enough to house about 15-20 horses, a small yard, a horse walker, an outdoor arena and an all‑weather woodchip training gallop. He employed the pursuer as trainer.
[4] Mr Reid started with six horses. The pursuer brought in a horse of his own, “Argentine”, with which he had had some success. So there were initially seven horses at the stables, though that number may have increased by the time of the accident. Mr Reid’s obvious ambition was that, by training winners, the pursuer would build up his reputation and that of the stables and thereby encourage other owners to send their horses there for training.
[5] Precisely what was in place and what was still to be built when the pursuer took up his position as trainer at Burnwynd Racing Stables is not entirely clear. It was not disputed, however, that the all‑weather training gallop had not yet been constructed. There was some discussion between the pursuer and Mr Reid about the proposed layout of the gallop. The pursuer’s evidence was that he offered Mr Reid some suggestions as to the best layout, gave him a couple of drawings showing his ideas, and gave him the business card of Mr Whitley, whose company Winning Post Consultancy Ltd is experienced in the installation of all‑weather gallops. Mr Reid, however, rejected his advice. Rather than engage any professional help, he looked it all up on the internet, made his own decisions as to the layout, and had the gallop laid down by his own workmen, using materials available to them from his construction business. This account is not quite accurate. Mr Whitley, who gave evidence at the proof, said that Mr Reid had followed up this lead and had asked Mr Whitley to provide a quotation for installing the gallop. Mr Whitley paid a site visit and submitted a quote, but never heard back. I accept that evidence. Subject to that, however, and in the absence of evidence from Mr Reid, I am prepared to accept the pursuer’s account of this as broadly correct.
The layout of the gallop
[6] The land at Burnwynd Farm extends to some 20 acres, an area which all witnesses agreed was too small to accommodate a good training gallop. The land is approximately rectangular in shape, about three times as long as it is wide. Access to the site from the A723 is by a driveway running down one (long) side of the site until it reaches the new house, stable block and other buildings just over half way down. The space available for construction of the gallop was restricted by the driveway and the house and other buildings; and the design for the gallop was further restricted by the fact that the space available for it was not all on the same level, the side opposite the driveway being somewhat higher than the rest of the site.
[7] In the event the gallop was laid out on the unobstructed part of the site in what was referred to in evidence as a “p” shape, though in fact the loop is more pear shaped than “p” shaped. From the start at the end of the site furthest away from the road, a straight of about two furlongs (about 400m) runs about half way up the length of the site to the bottom of the loop of the “p”. The first 100m or so is slightly uphill, as the track goes up onto the higher part of site, and then the straight flattens out. At that point there is a fork, where the gallop opens up into the loop of the “p”. At this point the rider takes the right fork, so as to take the loop of the “p” in an anti-clockwise direction. This first bend at the fork is by no means sharp, perhaps only 45⁰ (though no precise measurements were given in evidence). A gallop of a furlong or so from here to the second bend, which is left-handed, runs slightly downhill to begin with, as the course comes off the raised part of the site, and then flattens out. The second bend is tighter than the first, perhaps a turn of 130⁰ or so, opening onto a straight running slightly uphill, along the top of the rectangle and almost parallel to the road, to reach the third or final bend, which is also left-handed. The gradient levels off just before reaching the final bend. At this final bend the track turns away from the road – a turn of about 90⁰ – and runs down the length of the site for some three or four furlongs back to the start point, passing the first bend (the fork) about half way along and joining, at this point, the initial two furlongs of the gallop. The last 100m or so, which is slightly uphill at the beginning, is slightly downhill at the finish; and, since the same track is used both for the initial straight and for the final two furlongs, there is a risk that the surface of this last part of the gallop will already be cut up to some extent when the horse comes back onto it for the second time.
The general set-up at the racing stables
[8] The pursuer came to the stables in January or February 2010. He was employed as trainer. As such he would give directions and draw up lists as to who was doing what each day. He was responsible for maintaining the gallop and the outdoor school. Although there was initially some dispute as to whether he was self-employed, it was ultimately accepted both as a result of a notice to admit and, indirectly, in a joint minute that he was an employee of the defenders. He was assisted at first by a stable lad, Tony McCormack. He left in mid‑2010. Others came and went. Amanda McCaig came in as stable lass in early 2011. Her tasks included helping with feeding, mucking out and riding. She was about 21 at the time of the pursuer’s accident.
[9] In about January 2011 the defenders employed Paul Semple to assist the pursuer. By then they had about 13 horses at the yard. All of them were exercised daily, six days a week, and usually eight were ridden on the gallop each working day. The pursuer said that he and the stable lad or lass (as the case might be) were working flat out riding and exercising the horses. So Paul Semple was employed to take some of the burden off the pursuer. In addition to various jobs around the stable yard, he was assigned the task of maintaining the gallop in good condition, with the woodchip surface smooth, evenly spread and of sufficient depth. At the end of every day, after the horses had been ridden out on the gallop, he would go round with a tractor towing a “gallop master” (a machine with rotating spikes, which churns up the woodchip surface of the gallop and has the effect of evening it out) so as to ensure that the track would be in good condition for horses being ridden out the next morning.
[10] Ian Semple, Paul’s father, came to the defenders’ stable not long afterwards, in February or March 2011. He is a very experienced and well‑regarded trainer, having worked for many years with many of the top people in the business and trained a large number of winners. He had recently retired, but he was approached by Robert Reid, who offered him a job as trainer at Burnwynd Racing Stables. One can only assume that Mr Reid was not satisfied with the progress that the pursuer was making and thought it desirable to introduce a more experienced trainer to work with him. Mr Semple knew the pursuer, who had worked with him for about five years. He agreed to take the position only if the pursuer was happy about it which, for reasons of his own, he was. He started work there as trainer in February or March 2011, only some two or three weeks before the accident, and the pursuer slipped into the role as assistant trainer but on the same pay. It is not clear whether there was any formal re‑definition of the pursuer’s role after Ian Semple’s arrival, nor precisely when his role changed. Ian Semple gave evidence that by the time of the accident he was still finding his feet, effectively dealing with the paperwork, and had not yet taken over as trainer. He said that he took over after the accident, sooner than expected. The pursuer, on the other hand, said that Ian Semple took over as head trainer almost as soon as he arrived; and from then on it was Ian Semple who gave instructions to the pursuer, to Paul Semple and to Amanda McCaig, telling them what needed to be done, what horses were to be ridden, and so on. As a result, according to the pursuer, the pursuer stopped being responsible for the maintenance of the gallop, to the extent that he would only walk around it very occasionally, and took the view that he was not responsible for its condition. Amanda McCaig appeared to support the pursuer’s position on this. I did not have the advantage of hearing from Mr Reid on this matter. I had some doubts as to whether the shift in responsibility happened as completely and suddenly as the pursuer made out. If the point was of significance to the outcome of this case, I would have found against the pursuer on this point. I prefer Ian Semple’s evidence. However, in light of the conclusion to which I have arrived, I do not think that it matters.
Construction of a woodchip all‑weather gallop
[11] It is useful at this stage to refer to the evidence given by Mr Whitley about the normal construction of an all‑weather gallop such as the one at Burnwynd Farm. He said that while there may be differences in detail between different companies in their methods of installation, the basics were the same throughout the industry. The track would be cut into the field. His own preference was for the surface of the track to be some 150mm above the level of the surrounding land, the edges being kept in place by the soil removed from the track when it was being excavated. Others preferred the surface of the track to be level with the surrounding land. There was no right or wrong; it was just a matter of preference. The track would be between 2.5 and 5m wide, depending on the budget – the usual width was about 3m. He would dig down into the soil and subsoil across the whole width of the track to a depth of about 200-250mm (8-10 inches), placing the soil which had been removed to either side of the gallop. If the surface of the gallop was to be level with the surrounding land, then the initial excavation would have to be another 200 mm (8 inches) deeper. He would then cut further down to make a narrow channel for a drainage pipe running lengthwise down the track. Every 100m or so he would excavate a “cut-off” to allow water to run off from the perforated plastic drain to the side of the track into a soak away or a drainage system in the field. Having carried out this excavation, he would line the bottom of the trench (the whole width of the track and including the narrow drainage ditch) with a thin layer of geotextile membrane, usually black in colour but sometimes white. The membrane allows water to sink down through it but does not allow earth or stones to penetrate. The perforated plastic drainage pipe is then fed into the drainage trench and into the cut-offs. The next step is to lay a layer of hard angular stones on top of all this, so that they lock together and do not shift under the weight of the horses. This, according to his preference, brings the surface of the stones approximately level with the surface of the surrounding land. Another membrane is then laid on top of the stones. This is a thicker felt type material which comes in a variety of colours, usually white but sometimes blue or black. Finally the riding surface is put down. There are a number of different surfaces commonly in use. Woodchip or wood fibre was the original surface used for all‑weather gallops but a number of other substances are now available. Woodchip tends to be one of the cheapest, but it is still perfectly acceptable. It is important to lay the woodchip to a depth of at least 150 –200 mm (6 – 8 inches) so that there is no danger of the horse riding through it. This is the depth required once woodchip has packed down, which can take up to a year or so. When it is newly laid, woodchip will seem thicker. On the straight he aimed to make the gallop level in height from one side to the other, but on the bend his preference would be for the outside of the bend to be about 100mm (4 inches) higher than the inside. There was some disagreement as to the need to avoid an adverse camber at bends, an issue touched on by other witnesses to which I shall return later.
Evidence about the accident
[12] Direct evidence of what occurred came from the pursuer and from Amanda McCaig. Amanda McCaig gave her evidence first. On the day of the accident, she arrived at work as usual at about 7am, mucked out the horses and did a few other jobs. She tacked up the first horse and put him to exercise on the horse walker. She tacked up the other horses and took out Psalm Spirit to ride herself. The pursuer tacked up Psalm 23 and took him out. They rode out together at about 7am. They started off with the pursuer riding perhaps 10 or 20m ahead of her, just a matter of seconds apart. They slowed to a very slow canter at the first bend. At the second bend she caught up with the pursuer – they were no more than a car length apart – and both going very slow, just above trotting pace because the bend was too sharp to take at speed. Coming out of the second bend they increased their pace going up the slope towards the final bend. The pursuer was a bit ahead of her by this point. She said that she was just coming out of the second bend – maybe about six lengths behind the pursuer at this point – when she saw the pursuer’s horse slide. He was at about the brow of the uphill section, approaching the third bend. He had slowed down for the bend. Both horse and rider came down. The horse’s legs went to the right, towards the outside of the track; the pursuer was pinned down by the horse as it fell, with his head towards the inside rail and his legs and part of his body under the horse. She thought that the pursuer’s horse had slid on the exposed underlay. She was clear that she saw the exposed underlay there immediately after the accident. She said that at the inside of the third bend the woodchip was pretty shallow, perhaps only two or three inches deep. As soon as a horse went over it, the woodchip would come away to reveal the underlay. She thought the front inside leg of the horse had slipped back.
[13] The pursuer too gave evidence about the fall. He described how, on the day of the accident, he rode out at about 9am on Psalm 23 while Ms McCaig rode Psalm Spirit. He was going around the gallop as usual, taking the downhill section between the first and second bends very slowly in a gentle canter. After the second bend he was on the right‑hand side of the course and he pulled the horse over to the left as he approached the third bend. Before he knew it the horse slipped, fell to the left hand side (the inside of the bend) and landed on top of him. He described the precise spot in more detail and marked the spot with a line on the sketch plan attached as annex A to Mr Whitley’s report. The accident occurred just before the end of the uphill section of the straight, at the brow of the hill just before it started to turn the bend. He said the horse “lost its action”. He could tell something was wrong but before he knew it he had just hit the deck. He said that something on the surface of the gallop made the horse lose its action, but he could not say what it was. He gave an account to Ian Semple afterwards. According to Mr Semple the pursuer said simply that the horse had slipped up towards the top end of the gallop and had lost its footing. The accident record, filled in by the defenders within a day or so of the accident, simply recorded that the pursuer and the horse lost its footing and slipped. The pursuer said that he never saw this, and I suspect that he is right about that, but nevertheless it is consistent with what the pursuer and Mr Semple both said in evidence and tends to indicate that the accounts given by them in court are broadly similar to the accounts they gave then.
[14] In summary, therefore, the direct contemporaneous evidence suggests that the horse fell just before or on entering the third bend, on a line tending towards the inside of the bend. According to the pursuer, the horse “lost its action”; he could tell something was wrong. He thought it was caused by something on the surface. According to Amanda McCaig, the horse slid on the exposed underlay, the underlay being exposed because the woodchip surface was too thin.
[15] But there are difficulties with these explanations for the fall, whether it be that there was “something on the surface” or, more precisely, that the horse slipped on some exposed underlay. There is no record of exposed underlay in the accident record completed by the defenders soon after the event, nor any record that the horse lost its action because of exposed underlay or of something unidentified on the surface of the track. It was not clear who had compiled this record. But the absence of any such reference is consistent with Ian Semple’s evidence in court. And that tells against such explanations.
[16] It is helpful, too, at this point, to step back from the terms of the accident record and put to one side the evidence given by Ian Semple, and consider the evidence that might have been expected if the suggestion that the horse slipped on exposed plastic underlay were correct. If Amanda McCaig saw exposed underlay at the point where the pursuer fell, and if she connected that causatively with the fall, I would have expected her to have told both Ian Semple and Paul Semple (and, if he was available, Robert Reid) and insisted that repairs to the track be carried out, at least that that point on the track, before anyone rode on it again. Whatever Robert Reid’s attitude to complaints, I would not have expected either Ian or Paul Semple simply to brush this off, take no action and insist that she carried on riding on the course as it was. If she had told Ian Semple about the problem, either he would have insisted that steps be taken there and then to repair the course before it was ridden again; or, if he was unreceptive to what she was saying, she would have said in her evidence that she made a complaint but Ian Semple would not do anything to deal with the problem. But neither Ms McCaig nor Ian Semple spoke in their evidence to any such complaint, conversation, discussion or argument. Instead, when she was asked what happened after the accident, Ms McCaig described how the gallop was redesigned, so as to make it one big loop rather than “p” shaped as it had been. The planning for that started, according to her evidence, after a couple of months after the accident. Nothing else was done. She did not give evidence that there was any interruption in the daily routine of riding out on the gallop. Nor did she give evidence of any emergency repairs carried out that day or the next before training resumed.
[17] It is to be expected that a similar conversation would have taken place between Amanda McCaig and Paul Semple. He, after all, was the individual tasked with the job of maintaining and repairing the course on a daily basis. But Ms McCaig did not suggest that she had spoken to him about the problem with the course at the third bend. Had she suggested that they had had such a conversation, he would have been able to confirm or deny her account of events, to say whether a particular (alleged) defect was pointed out to him, whether he agreed that there was a problem, and what, if anything, he did about it. But he was not called to give evidence.
[18] In her final submissions, Ms Graham QC, for the pursuer, sought to make something of the fact that the defenders did not call Mr Reid to give evidence. I have no reason to think that Mr Reid could have had anything useful to say on this point. It was not suggested that Amanda McCaig had spoken to him directly about the accident or had pointed out a specific defect in the gallop where the accident occurred. Had she done so, then I would have expected Mr Reid to give evidence on those same matters, and in the absence of him giving evidence I could have drawn the appropriate inferences. But that does not arise on the evidence as it stands. More importantly than Mr Reid, however, was the absence from the proof of Mr Paul Semple , who might well have been able to assist the court for the reasons mentioned above. His job, after all, was to maintain the course and, after it had been ridden, to prepare it for the next day. I would have expected him to have been involved in maintaining the course on the day of the accident, after training was finished for the day. It would have been of interest to know whether his attention was drawn to any particular defect at the point on the course where the fell. It would have been of great interest to have his evidence about the general state of the course at that point. But he was not called by either party. He had been employed by the defenders when they were still in business and, presumably, could have been called by them. But I have no reason to think that he could not equally have been called by the pursuer. After all, it was the pursuer who called Ian Semple to give evidence, even though Ian Semple had also been employed by the defenders before they ceased trading. I do not know the reasons why he was called to give evidence. I understand that at one point the pursuer sought to introduce averments about him, alleging failures in maintenance of the gallop. But these were time‑barred. As a result, I am told that it was agreed between counsel that no case would be made against him. Indeed, the pursuer made it clear in his evidence that he did not blame Paul Semple for what had happened. This may explain why it was not thought necessary to call him to give evidence. As the case proceeded, and in particular with the evidence of Mr Whitley, it became clear that the question of adverse camber and of sufficient woodchip covering was inextricably linked to that of maintenance. So the absence of Paul Semple is regrettable. But in the absence of any evidence from him I cannot speculate as to what he might have said.
Evidence about the state of the gallop at that point
[19] Mr Reid used his employees from the construction industry to excavate and lay the gallop. There was no contemporary evidence of the detailed construction as it was carried out, the depth of the excavation, the installation of drainage, the depth of the woodchip, or the camber on the straight and at the corners. Nor, surprisingly, as mentioned above, does there appear to have been any detailed inspection of the track in the immediate aftermath of the accident. That may have been because it was not appreciated that the pursuer’s injuries were serious or because no claim was anticipated, but it is surprising nonetheless. The pursuer and Amanda McCaig both gave evidence as to the condition of the gallop as they saw it. While accepting that they were in a position to assess the state of the gallop since they were working there and riding it several times a day, six days a week, I formed the view, for reasons explained later, that their evidence was often exaggerated. Ian Semple’s evidence did not seem to me to suffer from the same problem. Some independent evidence about the gallop before the accident came from Yvonne Mee, inspected the premises on behalf of the British Horseracing Authority while the gallop was in the course of construction and, again, a few weeks later when construction was complete. The clearest evidence about the gallop after the accident came from Mr Whitley and Mr Lane, but their evidence was based on inspections which they carried over a year and a half after the accident. By then, the gallop had been re‑configured so as to form a loop, which involved the elimination of the first bend, alterations to the second bend and, to a much lesser extent, modifications to the third. It was obviously a necessary part of the pursuer’s case that there were defects in the state of the gallop at the time of the accident. It became clear in evidence that the camber on the bends could be influenced by the depth of the woodchip on the track; and it was common ground between experts that the depth of the woodchip surface in any particular place depended upon how well the track had been maintained and repaired over time. Accordingly, evidence based on visual observation some 18 months or two years after the accident was not necessarily a true indicator of the state of the track at the time.
[20] It is with these preliminary comments in mind that I now turn to summarise the evidence given by the pursuer, Amanda McCaig, Ian Semple, Yvonne Mee, Christopher Whitley and Charles Lane.
Amanda McCaig
[21] It was clear from Amanda McCaig’s evidence that she did not like the gallop at all. She made no bones about this. The whole set up including the stables, the yard and the gallop was “really small”. It was not finished properly. There was “stuff lying about”. Sometimes there were bricks lying on the gallop. The gallop was “too dangerous”. She was always riding “in fear of falling off”. She had fallen twice on the final bend and once at the second bend, though one or more of those incidents occurred some five or six months after the accident.
[22] More specifically, she complained about the surface. It was comprised of woodchip and sand. In her view a gallop was usually made of all‑weather sand. Her constant refrain was that it was “cheaply done”. She said that Robert Reid “just bought it in”, implying that he was looking for the cheapest materials rather than the best quality. It was “not good stuff”. They had to be careful riding round it. In her opinion, based on what she had learned at racing school and from other gallops she had ridden on, the woodchip and sand should be “a good foot and a bit” deep. At Burnwynd Farm, although it was a good foot and a half thick along the straights, the woodchip and sand was only about 4 inches deep in places. This was so particularly at the bends where, if it was icy or raining, the woodchip surface would just wash away. The woodchip on the top slope would wash downhill and the middle bit would wash away. At the second bend, because of the adverse camber, the woodchip would all be at the outside of the bend. The black plastic underlay would come up, which made it dangerous. It made it slippery for horses, particularly with shoes on (the horses were all shod). Sometimes horses would lose their footing on the gallop because the woodchip was too shallow. She had one horse which would trip up every day at the same point on the final bend.
[23] Ms McCaig said that the pursuer had complained to Robert Reid several times and she had also complained to him. They had complained about the woodchip not being deep enough and about the underlay becoming exposed, even when Paul Semple had just been round with the gallop master. They complained too about other matters, such as the tightness of the bends. Mr Reid would just say that he would get it sorted. She felt she had to ride on the course despite all this. If she had refused to ride out she would have lost her job.
The pursuer
[24] The pursuer said that he had made complaints to Mr Reid about the gallop on several occasions, right from the beginning when it was being installed. He told Mr Reid that they were not going to train winners there. He complained about the drainage. He complained about the sharpness of the bends. He complained about horses losing their balance on the final bend. He complained about the final bend on a weekly basis before the accident. His view was that, unless the course was put into the shape he wanted, his advice would be to leave the horses in their stables and not ride out at all.
[25] So far as the surface of the gallop was concerned, the pursuer said that he complained constantly that the woodchip on the surface was dwindling away; and that the woodchip had become compacted. There were bare patches on the gallop where more woodchip was needed. Supplies of woodchip were stockpiled at the top corner, between the road and final bend. They used this for patching up the surface of the gallop. Paul Semple was primarily responsible for that. By the time of the accident they had used up all the spare woodchip. He told Robert Reid that they needed more but he did nothing about it. Despite this, as far as the pursuer was concerned, the woodchip surface was alright. It was thick enough. He would check that with Paul Semple ; but he also walked the gallop four or five times in the two or three weeks after Ian Semple arrived and before the accident.
[26] The pursuer said in evidence that a few months before the accident, when Tony McCormack was there, they told Robert Reid that something was wrong with the camber on the final bend and that there was going to be an accident. Mr Reid got the builders to make the bend wider, but there was still something wrong – he did not know what it was but the horses were still losing their action there. He complained about the final bend almost every week before the accident.
[27] Despite these complaints, in cross-examination the pursuer made it clear that he did not think that the gallop was unsafe that day. He would not have gone out if he had thought it was unsafe.
Ian Semple
[28] Ian Semple too was critical of the gallop, but his criticism was mainly about how it was designed. As far as he was concerned it wasn’t really a gallop at all. It was badly designed. The bends were too sharp, so you had to hold the course carefully going round them. The straights were too short, with the result that you could not build up any speed. The gallop was therefore very limited from the point of view of doing any quality work with the horses. Although it was a small field, the gallop as designed did not make the best use of the space available. From the day he joined, it was always on the cards that the gallop would have to be improved. But even with improvements it was a pipe dream to think that you could have a high quality training gallop in a 20 acre field; the expectations were too high for what there was.
[29] Going into these matters in a little more detail, Mr Semple said that the straight leading from the start to the first bend was too short. It was only about 2 furlongs in length whereas on most gallops the straight is 5 or 6 furlongs. From the first bend it was downhill most of the way to the second bend. You could not go faster than a steady canter. The horses would quicken and you would be trying to restrain them and keep them balanced, getting them onto the inside leg and keeping to the outside of the bend. You would go through the second bend as steady as possible; it was too sharp to let them build up speed. After the second bend there was a good uphill slope which gave you a chance to restrain the horse. You could probably go faster but it was not advisable. At the third bend the outside was a nice curve, but on the inside it was almost a right angle. There was a lot of room to run wide around the bend if the horse would let you, but horses will naturally move towards the inside, and you have to let them do this so as not to unbalance them. There was no camber on this final bend.
[30] The surface of the gallop was woodchip. There was no real problem with it. Sometimes the drainage was not great. The course had been built using “planings “, i.e. tarmac shavings, rather than type one stone. As a result the rain never got through it and the drainage was less effective. At the final bend the woodchip was patchy in a lot of places, but they kept it topped up with fresh material, typically every 10 to 14 days. The woodchip had a tendency to go outwards so you filled it by hand every 10 days or so to a depth of 6 inches. That was the depth they tried to maintain it at. If it was less than that the horses would pull up the membrane. He said that the membrane was black, which was typical for use in the building trade and was more slippery than the white. But this was not a problem if the woodchip was properly maintained. Robert Reid supplied the woodchip. About 8 – 10 tons was kept in a pile above the final bend. They would use it sparingly on areas that needed it. If supplies got low he would tell Robert Reid that they needed more. He did not recall the woodchip running out. Paul Semple would go around with the machine after each exercise session. There was always a good surface to work on. He confirmed this in cross-examination. There were different grades of woodchip, and Robert Reid would probably have got the cheapest, which was probably softer than some other woodchip, but it was safe enough to canter on. On a long straight it would have been all right. He said it was not the woodchip which was the problem; it was the bend and, of course, the flooding.
[31] Ian Semple said his only concerns were the sharpness of the bends; the drainage; and the fact that the course was not up to standard for training racehorses. They could do steady work but not quality work or fast work. Asked if he had any concern about the surface, he said that he had not really inspected it in detail at the time of the accident. He knew about the drainage problem and about the fact that the course was too short. It was another six – eight weeks before his trainer’s licence came through – the pursuer still held the licence. He himself had not ridden for a few years and never rode the gallop at Burnwynd Farm. His view was that you could see the horses better on the ground. After he had been there for a while there was another incident, but it was not suggested that this was related to the condition of the surface of the gallop; the horse had simply been too strong, had run away with the girl riding him, and went too fast into the final bend.
[32] Ian Semple left Burnwynd Racing Stables in about October 2012. The racing stables ceased trading in about November 2012. He was owed a lot of money and successfully took the matter to a tribunal.
Yvonne Mee
[33] Yvonne Mee has worked for the British Horseracing Authority for nearly 25 years, inspecting racing stables and gallops in connection with applications for trainer’s licences. In her time she had been to over 170 different yards and inspected over 300 gallops. Her experience was not in dispute and, from that point of view, she was well qualified to give an opinion about the adequacy of the facilities at Burnwynd Racing Stables and, in particular, the suitability of the gallop. I found her both credible and reliable in the evidence she was able to give. But there were limits to what she saw.
[34] She inspected the gallop on behalf of the British Horseracing Authority on 7 June 2010 at the time when the woodchip was in the course of being laid. She walked the gallop with the pursuer. She commented adversely about the layout of the gallop –a continuous loop would have been better – but noted that it was planned to improve it in design when finances allowed. She considered it adequate for the pursuer to begin training horses on. She anticipated that he would be using the gallop for trotting and cantering, moving up to half speed, between a sharp canter and a slow gallop. The straight was suitable for fast work, but it was necessary to build up speed slowly. She would not go faster until after the third bend, at which point she would “come off the bend and give it a blow”. She emphasised that you have to ride according to the conditions. The gallop was adequate to get a horse fit, even though it was not ideal for training winners.
[35] She inspected the course again on 23 July 2010 after the gallop had been completed. She would have walked part of the gallop though not necessarily every inch of it. She did not ride it (an inspector never rides a gallop!). She noted that there had been a lot of rain in the area immediately prior to her visit with some flash flooding, as a result of which the drainage had been well and truly tested and a couple of wet areas had appeared on the straight after the third bend. On the morning of her inspection new drainage ditches had been dug and the water had drained away, leaving the gallop usable. Many people did this after flash flooding in order to get the water away quickly. She advised the pursuer to be careful when using the gallop before the woodchip surface had had time to settle properly. Gallops need time to settle. A woodchip surface is best towards the end of its life. Maintenance was crucial; a gallop is only as good as the person maintaining it. So far as concerned the question of camber, she was not a great advocate of creating a favourable camber. Race courses have different cambers and some have an adverse camber on some bends. A jockey knows to slow down and balance the horse coming into the corner. So far as concerned the question of downhill sections on the gallop, her view was that ideally one would work up the slope so that there was less impact on the front legs of the horse; but many race courses have downhill sections. Some trainers do not mind a gentle downhill slope on the gallop or an adverse camber on the bends since they are going to meet those conditions on the race courses.
[36] Ms Mee was asked about possible reasons for the accident. Her evidence, consistent with other evidence in the case, was that horses stumble and fall for no apparent reason. A fall can be just one of those things.
Christopher Whitley
[37] Christopher Whitley is a director of Winning Post Consultancy Ltd. who specialise in the construction of all‑weather gallops and riding arenas. It was his card which the pursuer says that he gave to Robert Reid at the time they were considering construction of the gallop, and it was he who met Robert Reid and provided him with a quote but heard no more. He was called by the pursuer to give expert evidence about the construction of an all‑weather gallop (see above). He was not seriously challenged on that part of his evidence. He accepted that different firms in the business might well do certain things in a slightly different way. Nothing turns on that for present purposes.
[38] For present purposes I am concerned with his evidence as to the condition of the gallop when he inspected it in the company of the pursuer on 27 September 2012, a year and a half after the accident. The time of his inspection was a problem, though obviously not of his making. During the time between the accident and his inspection a number of changes had been made to the gallop. Sometime in mid to late 2011 the “p” shape had been replaced by a single continuous loop, resulting in changes to the layout of the second and third bends. Those changes will have involved construction work, affecting the angle of the bends, the camber and the surface material. Any observations made by Mr Whitley must be subject to the comment that what he saw was not necessarily what was in place at the time. Another potential problem was that Mr Whitley may have proceeded on the basis that the pursuer fell while coming round the final bend. That was where the pursuer had placed an asterisk on a sketch plan of the gallop, exhibited as annex D to Mr Whitley’s report. However, in his evidence in court the pursuer said that the accident had been at the brow of the uphill section of the straight, just coming into the beginning of the bend. He placed a mark on that same sketch plan to illustrate the point. Mr Whitley said that that was approximately where the pursuer had told him the accident happened, but I was not persuaded that he was right about this; there is an obvious difference between the two places and parts of Mr Whitley’s report appear to proceed on the basis that the sharpness of the corner and the adverse camber at the corner may have played a part. In so far as Mr Whitley sought to identify the cause of the accident from the condition of the course at the point where the pursuer had placed the asterisk on the sketch plan, i.e. in the middle of the final bend, there must be a question as to whether those same factors would have played a part in an accident occurring where the pursuer placed his mark during the course of the proof.
[39] Mr Whitley described the gallop as being of a fairly standard construction, though it did not appear to have been professionally constructed. By this he meant simply that it did not have a “stamp” on it. He noted that the gallop base was set much deeper into the ground than he would normally do, but he recognised in his oral evidence that it was not necessarily deeper than the way that some of his competitors would do it. He could not see the drains, though he noted that extensive drainage work had been carried out beside the gallop, which tended to suggest that the gallop had been quite waterlogged at some stage. He mentioned that the base was of a “crushed slate like material”, which looked as though it would drain adequately. He described the woodchip surface as consisting of some rather large wood particles in some places with a fine particle mix in other areas. The majority of the gallop surface was of adequate depth – could not remember which areas were not. In some areas it was possible to see pieces of old damaged geotextile membrane, though he could not say where – he had not written it down. He described the membrane as being grey or white in colour, though there was evidence that the black had been replaced by white when the top section was re-fashioned. He noted the odd base stone mixed in with the riding surface, which suggested to him that the wood fibre had not always been kept at the correct depth – but again, he could not say where he saw this, save to say that it was in the same (unspecified) areas as where he had seen damaged membrane. He could not say whether the place where the membrane had come through was anywhere near where the accident happened. Taking all these matters into account, he came to the conclusion that the gallop had not always been kept at the correct depth. He emphasised that the depth and maintenance of the surface were extremely important; if the depth was not correct and inadequate maintenance had left the surface short of material, the horses would not have sufficient footing and might slip. It was normal practice to grade and roll the riding surface every day prior to use.
[40] Mr Whitley described the course up to the first and second bends. The second bend, a left‑handed bend, was where the problems began. It had quite an adverse camber, which meant that the gallop surface was slipping towards the outside of the bend; over 500mm (18 inches, as per his report) or just over 1 foot (300mm, as per his oral evidence) depth of material would need to be added in order to make it level, with a further 4 inches needed to make a positive camber. Having an adverse camber tends to cause horses to be off‑balance and in danger of losing their footing. He explained that when the gallop had been in use for a few years, the surface tends to move and you may need to redo it. If the woodchip was properly maintained there would not be an adverse camber. If there was an adverse camber, therefore, that was due to poor maintenance. He therefore accepted that he could not say what the camber was at the time of the accident. He then described the short uphill section leading into the third bend, which is where he said the accident occurred. The gallop was very wide and the bend quite sharp, with the riding surface cambering away from the inside running rail. The adverse camber here was less severe than that at the second bend, but he could not say by how much it was less severe and, again, he could not say whether the camber was the same now as at the time of the accident. He observed that the widening of the bend would not make it any safer since racehorses tended to work against the inside rail. He noted that the wood fibre at this point appeared to have been of the large particle variety, but it had now been overlaid with fine material.
[41] Mr Whitley then offered his opinion as to the causes of the accident. He said this:
“In my opinion the main causes of the accident was in the gallop construction, the failing to get the correct base level, also the sharpness of bend, the adverse camber causing the racehorse to lose its footing as it negotiated a bend which was too tight.
It is also quite possible that the older large particle wood fibre, which can be clearly seen under the new material moved, which could also have contributed towards the fall.”
I did not understand the basis upon which he attributed the accident to the original construction of the gallop and the failure, as he put it, to get the correct base level. He accepted in cross‑examination that he did not see evidence of waterlogging at or near the bend where the pursuer fell. As to the adverse camber, he accepted that that might not have been there at the time the accident. The question of the sharpness of the bend depends, of course, on where precisely the accident occurred. But in any event in cross-examination Mr Whitley accepted that the sharpness of the bend and any adverse camber would only be a problem from a safety point of view (as opposed to the quality of the gallop as a training ground for racehorses) if the horse was going too fast. As to the point about the horse tending to work towards the inside of the bend, he deferred to the opinion given by Charles Lane, the expert called by the defender, to the effect that horses will tend to go round a bend at a speed and on a line which suits them – they will often swing wide if the bend is too tight for the speed at which they are going. An experienced horseman such as the pursuer, who had ridden the bend probably well over 1000 times (including perhaps 300 – 450 times on Psalm 23), would have known how to ride the bend whatever its layout or camber. Mr Whitley accepted that horses do fall on gallops when there is nothing wrong with the gallop. That is just a fact of life. Not every fall implies the existence of some defect on the course. He accepted too that, in saying that there was something wrong with the bend, he was making an assumption from what he saw at the time of his inspection. To that extent he agreed that it was speculation.
Charles Lane
[42] Charles Lane was called as an expert witness by the defenders. His expertise lay in a different area from that of Mr Whitley. Whereas Mr Whitley’s expertise was in the field of design and construction of all‑weather gallops, Mr Lane’s was in everything to do with riding. I was given a full curriculum vitae from which it appears that Mr Lane has ridden horses over the last 40 years or so, has ridden out racehorses for many different trainers and raced successfully as an amateur jockey, and has been involved, also with considerable success, in equestrian competitions ranging from Horse Trials to show jumping. He has been manager of the Racecourse Department of The Jockey Club and National point‑to‑point Controller; he is currently steward and chairman of Stewards Panels at Sandown Park, Kempton Park and Wincanton Racecourses for flat and National Hunt meetings and on point‑to‑point courses; and is the British Horseracing Authority assessor for steeplechasers with poor jumping records. He too was a credible and reliable witness. Objection was taken to his appearing as an expert, in part because he did not attend Burnwynd Racing Stables until some two years after the accident, by which time work had been carried out on the gallop including at the final bend. I do not agree. Mr Whitley’s evidence about the state of the gallop is subject to the same criticism. Any evidence about the state of the gallop later is potentially relevant insofar as it may reflect upon the condition of the gallop at the time of the accident. In addition, Mr Lane gave helpful evidence about riding on a gallop such as this, a matter which is not within the familiar categories of judicial knowledge. I found his evidence helpful.
[43] Mr Lane carried out a site visit on 1 May 2013, about six months after Mr Whitley’s visit and therefore just over two years after the accident. He proceeded upon the basis that the alteration to the shape of the gallop did not involve any major changes in construction to the third bend. That may be right but there was no compelling evidence either way, and it is difficult to imagine that it would not have been affected at all. I need not set out much of his report in detail, since the salient points (contained in section 7.3) were put to Mr Whitley in cross-examination and are summarised above. I should, however, mention two points made in the body of his report. First, Mr Lane makes the point that the surface had been ridden on, levelled and weathered for some seven months before the accident happened. When the surface material was laid it was loose, and the woodchip was perhaps larger than ideal; but if after those seven months the material was still unacceptably loose, or had moved so as to leave patches with unacceptably little covering, that would have been apparent to every rider every time he or she rode on the gallop. Secondly, referring to the likely cause of the accident, having referred to the Accident Record and a precognition from Amanda McCaig, Mr Lane commented that “it is not uncommon for horses to trip or slip or stumble and fall either when going round bends or even on the straight on grass or all‑weather gallops.”
[44] In his conclusions in section 8 of his report, Mr Lane emphasised that the pursuer would have ridden the course between 1200 and 1500 times. Assuming the stable lad or lass rode a similar amount, that meant that the course would have been ridden between 2,400 and 3,000 times in the seven or eight months from construction until the accident. The pursuer should have been a sufficiently competent and experienced rider to ride the average racehorse on a gallop such as this in a safe and sensible way. The surface would have been settling throughout this time and, at the time that Mr Lane who inspected it, it was suitable for cantering racehorses in training. There was no evidence that Psalm 23 was a particularly difficult horse to ride or that it did anything unusual to cause or contribute to the accident. It was unclear what caused the horse to fall, but it is not uncommon for horses to trip or stumble and fall either on the straight or around bends. Any suggestion that the surface of the gallop moved or that the horse’s foot went through the surface so as to cause it to slip on the membrane appeared to be speculation. The best explanation was that this was simply an accident of the sort that may happen when training racehorses on gallops.
Discussion
[45] The evidence ranged over a large number of issues and involved wide ranging criticisms of the gallop. But it is important when considering the issue of liability to focus attention on those criticisms which are germane to the accident.
[46] To my mind, the starting point in this case (though the same may not be true in every case) is to be clear about what happened and where it happened. There were two eyewitnesses to the accident, namely the pursuer and Amanda McCaig. Although when the proof commenced it appeared that the accident may have happened in the middle of the third bend, the pursuer was clear in his evidence in court that the accident occurred just at the brow of the uphill section between the second and third bends, just before the third bend or just on entering the bend. The difference is probably one of terminology rather than substance. There is therefore no dispute about where the horse fell. As to precisely what happened, the pursuer described the horse losing its action and slipping. He thought there might have been something on the surface causing it to slip, but he was not sure about that. Amanda McCaig was more assertive. She said that the horse slipped on the exposed underlay, the woodchip surface layer being too thin at that point. So that is the focus of the enquiry. It can usefully be divided into two questions: was the underlay exposed at the point where the accident happened, or covered by such a thin layer of woodchip as to make it possible for the horse’s hoof to go down through the woodchip and make contact with the underlay; and, if so, was the fall caused by the underlay being thus exposed or inadequately covered?
[47] Before turning to answer these questions directly, I should make a number of observations, some of which might be thought to be obvious but which need to be made nonetheless.
[48] The first point, which was spoken to by a number of witnesses, including Yvonne Mee and Charles Lane, and was acknowledged by the pursuer, was that horses do fall without there being any obvious external factor causing that fall. Of course, in any particular case, it may be shown that something happened to cause the fall, but in many cases that is not so. At one point in the evidence there was some forensic jousting around the proposition that everything must have a cause and therefore it is wrong to say that horses sometimes fall without any reason. No doubt that is true is a matter of science, but at the level with which I am concerned it is of little moment. When one talks about horses falling without any obvious cause one is simply noting that it is in the nature of horses, particularly racehorses running at speed, to become unbalanced, to lose their stride, to lose their action, to slip or trip or fail in some other way to remain upright without there necessarily having been any external factor to cause this. This is important. In some types of case the occurrence of an accident prompts a search for an external cause; and, if one is looking for a cause and there is evidence about the existence of defects or hazards in the general area of the accident which could have caused it, it is not difficult to conclude that those defects or hazards caused the accident. But the present case is quite different. Once it is accepted that horses do fall even in the absence of some defect or hazard, then the occurrence of an accident of this sort does not necessarily mean that there was some defect or hazard in the track which caused it, or that it resulted from some failing on the part of those responsible for the course or its management. Nor does it necessarily mean that the rider was at fault. The occurrence of an accident of this sort does not even raise the likelihood of some defect or fault having caused it, so as to shift the evidential burden. That burden remains on the pursuer throughout. It is for the pursuer to identify something by way of a defect or failure on the part of the defenders which caused or contributed to the fall. And, in this case at least, this is best achieved by evidence focusing on the alleged defect or hazard at the time and place of the accident.
[49] The second point is simply to discount any possibility that the accident was caused by some particular and potentially dangerous characteristic of the horse. The pursuer did not suggest that Psalm 23 had been too strong or too fiery or had got out-of-control at the time of the accident. Nothing had happened to frighten him. Amanda McCaig described Psalm 23 as a “hard ride” who always “wanted to go”, but she said that he was a nice ride nonetheless. On the day of the accident he was calm. Ian Semple did not have a high opinion of the horses in training at the yard when he arrived, including Psalm 23, but that was not because of their temperament (he thought Psalm 23 had a decent temperament and was not a bad ride) but rather because he regarded them as big, cumbersome and slow. Psalm 23 was a horse “impersonating a racehorse”. Soon after the accident he sold Psalm 23 and the other horses at the stable because they were never going to win anything.
[50] The third point is this. Much of the evidence and, indeed, much of the submissions, went considerably wider than was strictly relevant. So far as the layout of the gallop was concerned, it was said that the stretch between the first and second bends was unsafe because it included a downhill section; and the second and third bends were too tight and had an adverse camber. So far as concerned construction and maintenance, it was said that the drainage was poor, so that the course flooded; the woodchip layer was too thin in many places; and that this exposed the membrane under the woodchip, giving rise to a heightened risk of a horse slipping. It was said that the combination of the adverse camber at the bends and the flooding caused by poor drainage caused the woodchip surface to migrate to the outside of the bends, leaving the inside with only a thin layer of woodchip and/or some exposed membrane. More generally, it was said that the gallop had not been professionally designed or constructed and that it had been done on the cheap. And there was criticism that because of its design, with downhill sections, sharp corners and short straights, it was never going to be any good for training winners. Much of this, as I have already indicated, is irrelevant. This case is not about whether the course was well or badly designed or constructed from the point of view of training racehorses. Criticisms that they would never train any winners on that gallop, are, from the point of view of determining liability, beside the point. Nor, except in so far as connected with the accident occasioning injury to the pursuer on this occasion, is this case about defects in the course generally, as seen from a health and safety viewpoint. The only question in this action is whether this particular accident was caused by some defect in the course for which the defender is responsible. One thing which is clear in this case, even if nothing else is, is that the pursuer fell just at the top of the uphill section between the second and third bends, the place where he fell being just before the third bend or as he was just coming into it. He did not fall on the downhill section between the first and second bends, so criticism of that part of the gallop is irrelevant, at least from a liability point of view. Nor did he fall on the second bend, so any criticism of that bend is also irrelevant for these purposes. Even as regards the third bend, he fell at a point before the sharpness of that bend could have had any bearing on the actions of the horse, so the sharpness of that bend is also irrelevant. And the adverse camber, in so far as said to be dangerous when combined with the sharpness of the bend, is also irrelevant. These criticisms of the gallop might be highly pertinent in a discussion about the quality of the gallop from the point of view of training racehorses. But that is not the issue. The issue here is simply whether there was some defect in the gallop at the point where the pursuer and his horse both fell and, if so, whether that defect caused the pursuer’s accident. While it might in some cases be relevant to consider defects existing in the track at a point before the corner where he fell – for example if there were evidence that the horse became unbalanced or spooked because of something on the track at such a place –there is no suggestion here of anything of that sort having occurred.
[51] The only direct evidence in support of the pursuer’s case that the horse slipped on the exposed membrane is that of Amanda McCaig. The pursuer himself could not say this, though he thought that there was something on the surface of the gallop which made the horse lose its footing. However, Ms McCaig’s evidence was clear on this point. She said that she saw the underlay at the point where the pursuer fell. She saw it immediately after the fall. She was about six lengths behind at the time so did not actually see the horse slide on it. But as a matter of inference it must have done. I have to decide what to make of this evidence. Amanda McCaig was an engaging and spirited witness, not backward in coming forward with her criticisms of the layout of the course, its composition and maintenance. She was, to my mind, an honest witness. She was not making things up to help the pursuer. Nonetheless, I did not find her reliable. I have already (in paragraphs [15] – [18] above) given reasons for having reservations about her account of seeing exposed underlay at the site of the accident. In addition, she was, in my opinion, exaggerated in her criticisms of the gallop and, by inference, of the defenders. She clearly did not like the course. From the start she said that the surface was very cheaply done. She criticised, as I understood her evidence, the choice of woodchip as an all‑weather surface, and thought the depth of any surface covering should be a good foot and a bit. This was unjustified. Although, as Mr Whitley made clear in his evidence, woodchip is no longer the newest thing in all‑weather surfaces, it is still perfectly acceptable; and he would have been satisfied with a surface covering of 6 to 8 inches, which he said was the norm. On these points I consider that Amanda McCaig was allowing her dislike of the course, and possibly of Robert Reid also, to cause her to speak exaggeratedly of its defects. In the same vein, she spoke of there being loose bricks on the surface of the gallop, which they would have to pick up – but no one else spoke about this, not even the pursuer, and it is difficult to understand where they would have come from. It is possible, I suppose, that right at the end of the construction phase there were odd bricks and items of masonry which had not yet been cleared up, but Amanda McCaig was not there then. I do not accept that either she or the pursuer would have ridden horses round the gallop if there were frequently loose bricks on the course. It is against this background that I assess her evidence that she saw exposed plastic membrane on the track at the point where the pursuer fell. Again, no one else spoke to this. The pursuer had ridden round the track several times a day every day except Sundays; and he had walked it about four or five times after Ian Semple arrived to take over from him as. He did not give evidence that there was any exposed plastic underlay visible at any point on the track. Nor did Ian Semple, though I accept that he had only been at the yard for two or three weeks at most and had not routinely inspected the gallop. I accept the pursuer’s evidence that he frequently complained about the gallop to Robert Reid, but his complaints covered a wide variety of matters, including the layout of the course and his general concern that they would not train any winners on it as it was. I accept that he spoke to Robert Reid on several occasions about the depletion of the pile of woodchip used to maintain or reinstate the woodchip surface on the gallop, and that there were “bare patches” in places, but his evidence did not go so far as to say that that had left the plastic membrane underlying the woodchip surface dangerously exposed. Indeed, I am satisfied that this was not his view. He knew that it would be dangerous to ride round the track with the membrane exposed in places, but he continued to ride and said in terms that if he had thought the course was dangerous he would not have ridden. In light of this evidence, the fact that he continued to ride points strongly towards the conclusion that, in his opinion, the course was not dangerous; and that means, amongst other things, that he was satisfied that there was no exposed or inadequately covered plastic underlay.
[52] I have already mentioned Ian Semple’s evidence that, so far as he was concerned, there was no real problem with the surface of the gallop. Ian Semple is an experienced and reputable trainer. I found his evidence restrained and persuasive. I do not consider that he would have allowed the pursuer and Ms McCaig to ride out on the gallop if the surface had been dangerous in the manner alleged.
[53] There is not much help to be gained from the observations of Yvonne Mee, who inspected the course twice in the period before the accident, or those of Mr Whitley and Mr Lane who inspected it one and a half years and two years after the event respectively. Yvonne Mee saw it last very soon after the surface was laid down. It might, or might not, have been well maintained between the time of her inspection and the accident. Similarly, Mr Whitley’s and Mr Lane’s inspections were inspections of the track after it had been altered, and then used and maintained, adequately or otherwise, for a very considerable period of time after the accident. The adequacy of the depth of the woodchip covering will depend almost entirely upon proper maintenance. Inspections so long after the event tell one almost nothing about the condition of the track at the time of the accident.
[54] As I have said already, I find the absence of any contemporaneous observation, immediately after the accident, surprising if Amanda McCaig’s evidence about the exposed membrane at the site of the accident is correct. If the pursuer and Amanda McCaig had been of the view that there was a dangerous point on the track at the third bend where the plastic underlay was exposed, and in particular if Amanda McCaig had seen that this had caused or contributed to the accident in which the pursuer was injured, then I would have expected that point of the course to be inspected carefully, if not by Mr Reid then at least by Ian or Paul Semple or by Ms McCaig herself. But there was no evidence of any such inspection. Nor was there any evidence that there was some hiatus in riding around the track during the following days while repair work was carried out. That points against their having been some defect of the type of alleged by the pursuer in this case.
[55] I have already given an assessment of Amanda McCaig’s honesty and reliability. I should say at this point that I found the pursuer also to be an essentially honest witness. But in his criticisms of the gallop, as well as in his account of the shift in responsibilities as soon as Ian Semple arrived, I think he too was prone to exaggeration. Ian Semple I found both honest and reliable.
[56] For all these reasons, therefore, I do not find it proved that the pursuer’s accident was caused by any defect in the gallop.
Conclusion on liability
[57] I do not find there to have been a defect of the kind alleged by the pursuer, or indeed any defect in the gallop which caused the pursuer and his horse to fall. I see no reason to doubt that the horse fell simply because horses do fall sometimes. That is fatal to the pursuer’s claim. Riding horses is an activity which involves the risk of falling, and accidents do happen without actionable fault on the part of another party.
[58] In these circumstances I do not propose to examine in any detail the legal basis for the pursuer’s claim. The common law claim is based upon an allegation of breach of a duty of care. I did not understand it to be disputed as a general proposition that a duty of care was owed by the defenders to the pursuer. It is quite another matter to elaborate in detail on what measures were required to be taken by the defenders in fulfilment of that duty. In this case as in very many others, the exposition of the duty, or rather the articulation of what steps require to have been taken in fulfilment of that duty, is fact specific. I do not consider that it would advance an understanding of the common law duty of care were I now to speculate on steps which should have been taken on the basis of facts which I do not find to have been proved. However, I have no doubt that it would be a breach of the duty of care owed to the pursuer to leave the gallop with the plastic underlay exposed in places where horses would normally be ridden, or to neglect the maintenance of the gallop to the extent that the woodchip layer was so thin that a horse could put its hoof through the woodchip and slip on the plastic underlay below. Accordingly, had I accepted the pursuer’s case on the facts, and found that the accident was caused by the horse slipping on exposed or inadequately covered membrane, I would have found the defenders liable. Although the maintenance obligation at common law is not absolute, it is difficult to see how, on those findings, I could have reached any other conclusion.
[59] The pursuer also advanced a statutory case alleging breaches of Regulations 5, 12 and 17 of the Workplace Regulations and Regulations 4, 6 and 10 of the Work at Height Regulations. It was accepted that the Workplace Regulations applied. There was an issue as to the applicability of the Work at Height Regulations in circumstances such as the present. It is unnecessary for me to decide that. The pursuer’s case under each must fail in light of my conclusions on the facts. Had I accepted the pursuer’s case on the facts, and found that the accident was caused by the horse slipping on exposed or inadequately covered membrane, I would have found the defenders liable under the Workplace Regulations. I say nothing about the Work at Height Regulations; I suspect they would not have helped the pursuer if he had failed on all else.
Volenti non fit injuria
[60] In their pleadings in the defenders advanced a case of volenti non fit injuria. If the gallop’s work inadequately covered in woodchip at the site of the accident and if the bend there was too tight, these defects were the responsibility of the pursuer. It was within his remit as trainer to ensure that the gallop was appropriately configured and maintained. It was not clear to me whether this submission was insisted upon at the end of the proof. Even on the basis that the pursuer remained in charge after the arrival of Ian Semple, it is going too far to suggest that he personally was responsible for these defects. In so far as he failed in his duties, he did so as an employee of the defenders with whom responsibility ultimately lies. Accordingly, even if I had accepted that these defects existed and caused the accident, I would have rejected this line of defence. In any event, it cannot be a defence to the statutory case which places a burden on the employer as regards the safety of employees, even if an accident happens to them as a result of their own carelessness.
Contributory negligence
[61] The defenders also maintained a plea of contributory negligence. Though they did not say anything about it in their final written submissions, I took it still to be insisted upon. Having found that the gallop was not in as bad a condition as alleged by the pursuer, and the pursuer having failed to prove that the accident was caused by any defect in the surface of the gallop, it is difficult to know what facts to assume in determining whether the defender was contributorily negligent. However, on the hypothesis that I had found that the horse fell as a result of slipping on the plastic underlay, whether that underlay was exposed on the surface or was simply inadequately covered by woodchip so that the horse’s hoof could penetrate through the woodchip on to the underlay, then I would have regarded the pursuer’s conduct in continuing to ride out as negligent, and on that basis I would have made a finding of 30% contributory negligence.
[62] As has recently been made clear by the Supreme Court in Jackson v Murray [2015] UKSC 5, the court should have regard to the respective causative potency of the parties’ acts and their respective blameworthiness. On the hypothesis that the third bend was dangerous because a horse could slip on exposed or nearly exposed underlay, then the pursuer should have been aware of this, both because of his responsibilities as trainer to ensure that the gallop was properly maintained and save to ride on and also because of his familiarity with the gallop from having ridden it at least four times a day, six days a week, amounting to well over one thousand times in all. If the surface of the gallop at that point was as bad as Amanda McCaig said it was, if it was so bad that the underlay was insufficiently covered if it was covered at all, then the gallop was so dangerous that he should not have ridden on it. He himself recognised this when he said that if the course was dangerous he would not ride it. Although the greater fault, on this hypothesis, lies with the defenders, I consider that both in terms of his blameworthiness and the contribution that his actions made to the accident a finding of 30% contributory negligence reflects the appropriate apportionment.
Quantum
[63] I should deal with questions of quantum in case this case goes further. But I shall do so briefly. Because on my findings on liability questions of quantum do not arise, I do not propose to refer in detail to the case law and passages from the Judicial College Guidelines cited to me.
Solatium
[64] The pursuer suffered a severe 4-part fracture of the left shoulder. He has undergone three operations. He underwent surgical fixation and reconstruction in March 2011, immediately after the accident; a subsequent repair of his rotator cuff and removal of the metalwork in March 2012; and a shoulder replacement in November 2013. He suffers continuing pain and discomfort and restricted movement. He is functionally one armed, being able to move his left hand and arm from the left elbow only. He cannot lift heavy weights or do any activity requiring the use of two hands. The injury has transformed his life both physically and psychologically. He has had serious mental health issues. Without going into the details, it is clear that he is a changed man, and that has affected his lifestyle and his relationship with his then partner and their daughter.
[65] I was given figures by the defenders relating to past awards for both severe and serious shoulder injuries. It seems to me that these leave out of account the extent to which the pursuer has effectively lost the use of his arm. They also leave out of account the psychiatric and psychological effects of the injury. In the case of someone like the pursuer, the inability to continue his work with horses does not just reflect on issues of employability and loss of earnings; it impacts upon his whole way of life. He knows nothing else. As a result, I incline more towards the figures put forward by counsel for the pursuer. Had I found the defenders liable, I would have awarded £85,000 under this head with 50% of that attributable to the past. As to the rate of interest, I would have put the case out by order at the request of counsel for the defenders.
Past wage loss (including winnings)
[66] It is convenient to divide this into two periods; the first of the period up to 10 November 2012 when the defenders were placed into administration; and the period after that until the date of this judgment.
[67] Dealing first with the period up to 10 November 2012, I have no reason to doubt (and indeed it is not disputed) that the pursuer would have continued to be employed by the defenders (whether as trainer or assistant trainer to Ian Semple) at his pre‑accident wage. He was being paid £26,000 net per annum or £500 net per week. That equates to £34,000 gross. Accordingly, he would have earned £43,333 had he continued to be employed until that date. As it was he was paid three months wages and Statutory Sick Pay, totalling in all £6,648. That produces a past wage loss up to that point of £36,685.
[68] Making any assessment of past wage loss between that date and now is fraught with difficulty. The pursuer’s case proceeds on the basis that he would have found another job as trainer within about a month, or a few weeks, of the defenders going into administration, though he accepted that he might have to go down to England to get an equivalent position. The pursuer gave evidence to this effect. This is itself problematic, since he wanted to be near his daughter. Further, the assumption that he would quickly have found another job as trainer seems to me to be to be somewhat optimistic. The pursuer had not built up any track record as a successful trainer by then. His first job as a trainer was with Ashgrove Racing Stables in 2008/2009. His next, at Cleughhead, did not last long. He then moved to work for the defenders at Burnwynd Racing Stables. It is not necessary to speculate as to his reasons for moving on from one job to another – Ashgrove Racing Stables ran into financial difficulties and it is not clear why he did not stay at Cleughhead – but the simple fact is that by the time the accident occurred he had not been in the business long enough or with a record successful enough to build a reputation enabling him to walk into other positions; or at least it is not shown on the evidence that he had done so. There was no independent evidence that he had outstanding qualities as a trainer. Ms Mee, who helped him find the position at Cleughhead, commented adversely upon his rapid move from one training establishment to another, and how that would look to a future potential employer. Her view, expressed in her report to the British Horseracing Association, was that he “talked a good game”; whether he had the ability to be successful is a different matter. And, of course, luck plays its part. I was told that there were some 500 licensed trainers in the UK. No doubt for any vacancy there are a large number of applicants. The pursuer may or may not have been given a job as trainer at another establishment. On balance of probabilities I do not find it established that he would have done. Had he done so, and had he required to move down to England, he would have had moving expenses to take into account.
[69] Taking all this into account, I am of the opinion that the evidence does not establish any loss of earnings from 10 November 2012 to date. The pursuer did not give evidence of any other employment he might have looked for outside the horseracing industry, nor was there any expert evidence to show that even if he had not been employed as a trainer he would have been able to gain other employment during this period.
[70] In addition to his basic rate of pay, the pursuer gave evidence that he was entitled to 10% of winnings as a trainer or 5% as an assistant trainer. In the absence of evidence to the contrary I accept this. The pursuer gave evidence that Ian Semple had eight winners at Burnwynd after the pursuer’s accident and before the defenders went into administration. He said that his 5% share would have amounted to about £1,400. There was no evidence to the contrary. This must be added to his loss of earnings.
[71] The pursuer was cross‑examined about the fact that he bought and sold antiques and other items on eBay. It was established that he had done this, and there was some dispute about his honesty in relation to nondisclosure until a late stage. I do not think that his failure to disclose this gives rise to any inference of dishonesty. Nor, so it seems to me, is it particularly relevant to the pursuer’s claim for loss of earnings. It may well be that his enforced idleness caused him to buy and sell on eBay when he would otherwise not have done that. But to begin with he was selling items given to him by his father in order to help him make ends meet. Later on he appears to have started dealing, in the sense of buying and selling for profit. I do not think that any profit he may have made should be deducted from his loss of earnings. While his injury may have given him the opportunity to become interested in buying and selling on eBay, this was something he could have done even if he had not been injured but had continued as a trainer at Burnwynd. His earnings from eBay, which in any event I understood to be very small, were not in any sense replacement earnings or earnings in mitigation of his loss.
[72] Accordingly, I would have awarded only £38,085 for past loss of earnings, including his percentage share of winners trained between the date of his injury and November 2012. I would have awarded interest on this amount, that would again have put the case out By Order for submissions as to the rate of interest.
Future wage loss (including winnings)
[73] The same difficulties make it difficult in the extreme to make any conventional assessment of future loss of earnings. It is not established that he would have been able to continue as a trainer had he not been injured. In those circumstances there is nothing against which to set the amounts which he might be able to earn in his present condition. There is no multiplicand, and therefore nothing to which any multiplier might apply.
[74] In those circumstances one option would be simply to award nothing in respect of future wage loss. I do not think that this would have done justice to the pursuer. As an alternative, it was suggested by counsel for the defenders that I should award the pursuer a lump sum: cf Van Wees v Karkour [2007] EWHC 165. This is inevitably a broad brush approach, but it seems to me that a figure of £50,000 (the figure suggested by the defenders) would represent appropriate compensation for whatever future loss of earnings there might be. That is a figure that I would have awarded. That takes into account any compensation for the pursuer’s disability and his disadvantage on the labour market resulting therefrom. Although I accept that the pursuer is unsuited for work requiring bimanual dexterity, this does not enable me to form any better assessment of what he would have been able to do and what he cannot do now, simply because it is wholly uncertain what the pursuer might have done had he not been injured. The award of a lump sum of £50,000 takes account of that imponderable.
Services
[75] Parties were agreed that I should award £10,000 (inclusive of interest) for services provided by the pursuer’s parents from the date of the accident to date.
Future care and household costs
[76] The pursuer sought an award in respect of future care and household costs. I heard evidence on this both from the pursuer and his father and also from Mrs Jean Bush. I have to say that I thought some parts of Mrs Bush’s evidence exaggerated. One perhaps trivial example is her suggestion of a provision of £1,000 to convert the pursuer’s car from manual gear shift to automatic, where the obvious solution would simply be to have changed cars. The pursuer’s claim included provision for his windows to be cleaned fortnightly. That seems to me to be wholly excessive. Her rates for the provision of care appeared high, when the pursuer’s care needs could mostly be serviced by unqualified staff. The pursuer was capable of light work but not heavy domestic chores. There is no reason to think that his needs could not have been accommodated locally rather than by commercial providers of domestic care. The pursuer’s parents were providing assistance at the moment and would continue to do so for the reasonably foreseeable future: despite their age they are very active and willing to help. Mrs Bush included provision for cognitive behavioural therapy (the head of claim no longer pressed by the pursuer), and for a case manager to liaise between care providers. The defenders suggested that neither of those items was necessary, and I agree.
[77] In addition to a capital sum of £5,702.27 for capital costs such as case management, occupational therapy, family mediation, equipment, conversion of the car to automatic and a lightweight suitcase, the pursuer’s final schedule suggested an annual cost for these various recurring items of £5,547.16. The defender’s figure was £2,292.24. Having looked carefully at the items on the pursuer’s final schedule, I have come to the conclusion that the appropriate figure for annual cost is £3,300. Given that the pursuer is now 42 years old, it seems to me that the appropriate multiplier is 23. That produces a figure of (£3,300 x 23) £75,900. In addition I would have thought it right to award a capital sum of £3,000 to cover the various items of equipment and services required on a one‑off basis.
Pension loss
[78] The claim for pension loss assumes that, but for the accident, the pursuer would have continued in the same sort of employment. The evidence from Mr Pollock and the agreement in the joint minute proceeds upon the basis, if proved, that the pursuer would therefore have been automatically enrolled into an occupational pension scheme. I have found that the pursuer has failed to prove that he would have been able to continue in similar employment, and that he has failed to show what employment he might otherwise have taken had he not been injured. For the same reasons as expressed in relation to future loss of earnings, it does not seem to me to be right on that basis simply to refuse this head of claim. I accept the defenders’ submission that it would have been appropriate in the circumstances to award a lump sum. The figure the defenders put forward is £10,000. That seems to me to be about right.
Disposal
[79] For the reasons given earlier, I shall pronounce decree of absolvitor. I shall reserve all questions of expenses.