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May 23, 2013

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Court queries role of health and safety law in risky sports

The Appeal Court has found in favour of a jockey who was badly injured in a fall at Cheltenham racecourse seven years ago, but said the applicability of health and safety law in the case meant it was not an “easy” decision.

Former professional jockey Philip Hide (pictured) fell from his mount, Hatch a Plan, at the first hurdle during the first race of the day at the famous course on 11 November 2006.

He hit the ground and then slid at speed into contact with one of the upright posts of the guard rail running around the outside of the track, which was around four feet away from the outside edge of the hurdle.

Mr Hide hit the post with his left hip and sustained a fractured pelvis and a head injury. He had to be put into a medically-induced coma while doctors rebuilt his hip. He subsequently recovered to ride again but retired in 2010, and now trains horses.

In 2009, the jockey commenced an action to seek damages against the management of the racecourse — specifically Jockey Club Racecourses Ltd — asserting that, under reg.4 of the Provision and Use of Work Equipment Regulations 1998 (PUWER), work equipment (i.e. the guard rail) is to be so constructed or adapted as to be suitable for the purpose for which it is provided. He also contended that the hurdle was placed too close to the perimeter guard rail.

However, Judge Charles Harris QC, handing down his decision last year, dismissed the claim on the grounds that both the hurdle and the guard rail were suitable equipment. He also held that the fall suffered by Mr Hide was very unusual and would not have been expected, or reasonably foreseen.

The racecourse, he said, was administered “by experienced and conscientious people who were alive to safety issues” and he considered their views as “the best indication of what disposition of hurdle and fence was ‘suitable'”.

Judge Harris also referred to the “remorseless march” of health and safety legislation and the “relentless logic of the personal-injury lawyer”, asking should jump races “be required to be made so undemanding that all horses could be expected to negotiate them without mishap” and wondering how the regulations could be made to apply to the infamous Becher’s Brook on the Aintree Grand National course.

Sitting earlier this month in the Appeal Court, Lords Justices Longmore, McFarlane and Davis allowed Mr Hide’s appeal against the original judgement, having carefully considered whether Judge Harris QC was correct to use the concept of reasonable forseeability in the classic common-law manner when assessing liability under PUWER 1998.

As part of their deliberations they questioned whether the concept of reasonable foresight, as introduced into the UK’s domestic regulation, correctly implements the original Use of Work Equipment Directive. Article 5(4) of the Directive, they pointed out, allows member states to opt to provide for the exclusion or limitation of an employer’s responsibility in respect of occurrences due to unforeseeable circumstances beyond the employer’s control, or occurrences due to exceptional events the consequences of which could not be avoided despite the exercise of all due care.

They concluded that it must be for the defendant to prove one or other of these two categories of occurrence, noting in this case that “this, the defendant cannot do”. They said: “The fact that an injury occurs in an unexpected way will not excuse the defendant unless he can show further that the circumstances were ‘unforeseeable’ or ‘exceptional’ in the sense given to those words by the Directive.”

Consequently, they decided Judge Harris was incorrect to import into reg.4 the common-law phrase of reasonable forseeability and dismiss Mr Hide’s claim on the bases that the way in which he was injured was unusual and that the Jockey Club had abided by all the requirements of the British Horseracing Authority and could not be expected to do more.

Lord Justice Davis agreed overall with the decision to rule in favour of Mr Hide but he seemed to show some sympathy with the original judge’s sentiments regarding health and safety in sport.

He said: “Jump racing is dangerous. Injury, potentially serious, is a consequently foreseeable hazard. Risk is thus inherent in the sport. Indeed, it is risk that plays a part in contributing to uncertainty of outcome, which, itself, is an essential element of the sport.”

He continued: “It might seem an oddity that the Regulations can apply to a case such as the present at all. This was hardly an accident befalling an employee at the workplace of the typical kind, or as ostensibly contemplated by the directives.”

But he acknowledged the Regulations are “evidently designed to be stringent” and agreed that the test for an employer under them is stricter than under common law.

In a statement released after the decision, the Jockey Club said: “We are disappointed by the judgement and will be discussing the implications of the ruling with our legal team. No further comment will be made at this stage.”

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