DICKSON POON v. KAN WAI YU AND ANOTHER

HCA20262/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 20262 OF 1998

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J U D G M E N T

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Introduction

1. This is a case about a horse. Its name was 'Harbour Master'. In May 1998 it was injured during a race at Shatin Racecourse and had to be put down. No jockey, spectator or other horse was injured. The owner of the horse, the nominal plaintiff, Mr Dickson Poon, subsequently recovered the insured value of the animal from his insurance company. That company, duly subrogated to the rights of its assured, now seeks to recover damages for the loss.

2. Its target is the 2nd defendant, the Hong Kong Jockey Club, which for the purposes of this case only is admitted to have been the employer of the apprentice jockey, Miss Willy Kan, whose negligent or reckless riding in the race is alleged to have been the cause of the injury to 'Harbour Master'. Miss Kan initially was named as the 1st defendant in these proceedings. Sadly, however, she subsequently died in a fall in the course of practising her profession, and no claim is maintained against her estate.

The race

3. On 3 May 1998, Race 512 of that season, The Cable TV Cup, was run at Shatin Racecourse. It was a Class 1 handicap held over 1,900 metres. It had a field of 14 horses. The configuration of the track at that time meant that the horses had to start about 100 metres to the west of the winning post, run past the winning post for the first time and thereafter make a complete circle of the track before returning to the winning post at the finish of the race.

4. In this case no-one has been particularly interested in the winner. To the contrary. Much attention has been focused on what happened shortly after the start. Miss Kan was jockey for the horse 'Winning Scene'. She was to come out of the gates at draw 14, that is, on the very outside of the field. To her immediate inside was 'Smart Kid', with 'City Patrol', ridden by C.W. Mok, further inside at stall 12. 'Harbour Master', ridden by apprentice Carol Yu, was drawn at stall 10, and to her immediate inside at stall 9 was 'Celestial Fortune', ridden by Basil Marcus.

5. Miss Kan's instructions from her trainer, Mr P.C. Kan, were to jump out of the gates and go for a good position at the first bend, which due to the start of the 1,900 metre track configuration would be reached by the field very quickly. It is Miss Kan's execution of those instructions that has provided the subject of extended debate in this case.

6. The videotapes of this race, taken from the various Jockey Club patrol cameras, clearly show what occurred as the field jumped from the barrier. Miss Kan on 'Winning Scene' was away quickly. After an initial 10 to 12 strides, in which 'Winning Scene' ran an impeccably straight line, Miss Kan set about moving inside, and can be seen to be looking behind and to her right several times in an attempt to assess her position relative to the rest of the field.

7. At this stage 'Winning Scene' was at least two lengths clear of the horse to its immediate inside, 'Smart Kid', and was also in front of 'City Patrol', although not by two lengths. Miss Kan moved her mount over the dead ground which had opened in front of 'Smart Kid', but because of her wide position, and also I suspect because of the fact that by now she was well clear of 'Smart Kid', she adopted a line of approach which was somewhat steep. What then happened was that 'City Patrol', which was blinkered, appeared startled by the approach of 'Winning Scene' and shied away to the right, momentarily moving sideways and bumping 'Harbour Master' to its inside. In turn 'Harbour Master' moved sideways and bumped 'Celestial Fortune' on its inside.

8. This particular sequence is what has been referred to throughout this case as 'the first incident', and represents the point prior to the first bend and but seconds into the race at which it is said by the plaintiff that 'Harbour Master' received a severe injury to its right foreleg, the injury which has provided the focus of the present claim.

9. The reaction of 'City Patrol' in shying away led to Miss Kan attempting to straighten 'Winning Scene', but after a stride or so her mount reverted to its line and continued to come in, at this stage bumping 'City Patrol', thus causing that horse to tighten and move in and for 'Privilege', the horse behind, to clip heels with 'City Patrol' and to stumble, although it did not fall. This second sequence represents the so-called 'second incident' of interference.

10. After the bumping and jostling that occurred prior to and into the first bend, the race continued apparently without adverse incident. 'Harbour Master' continued to race strongly, and moved up to the leaders in the back straight, until at about the 1,000 metre pole the horse's head can be seen suddenly and momentarily to dip or stumble before its jockey, Miss Yu, attempted to pick it up, changing her grip on the reins and giving it a tap with her whip. 'Harbour Master' then galloped on to the 800 metre pole, at which point noticeably it stopped racing, the rest of the field surging past within the space of a few lengths. Entering the finishing straight 'Harbour Master' was at the back of the field by a considerable distance and came in relatively slowly, finishing well last by some 35 lengths or so.

The aftermath

11. Upon examination after the race 'Harbour Master' was found to have an open wound on the back of its right foreleg and a complete rupture of its superficial digital flexor tendon, which forms one of the three structural support systems within the horse's foreleg. The severity of the injury and the extent of the damage suffered led to a consensus amongst the attending veterinarians that there was no option but to euthanize the horse, and this sad act was performed within an hour after the conclusion of the race.

12. At about 6:45pm on the same race day, the Race Meeting Stewards held an Inquiry into the running of the Cable TV Cup, with particular reference to the riding of Miss Willy Kan. Three riders were called to give evidence : Miss Kan and the two other apprentices, C.W. Mok, the rider of 'City Patrol', and C.K. Tsang, who had been on 'Privilege'. During the showing of the race video the then Chief Stipendiary Steward, Mr Clinton Pitts, pointed out the two incidents of interference which had taken place at the start of the race, each of the jockeys thereafter being questioned.

13. Mr P.C. Kan, the trainer of 'Harbour Master' and the trainer responsible for Miss Kan, also gave the Stewards an account of his instructions given to Miss Kan before the race, confirming that with a wide draw and "a very dangerous bend" soon after the start that she should jump out straight, but that for this particular distance it was very important to get into a good position as far as was possible. The trainer stated his view that the incidents had not been entirely Miss Kan's fault, and that he thought it was partly his mistake for having given her such instructions.

14. During the hearing Apprentice Mok confirmed that in the first incident his horse had "shied away" from Miss Kan's, and Apprentice C.K. Tsang explained that his mount, 'Privilege' had clipped heels because 'City Patrol' had shifted in. For her part Miss Mok, in answer to a question from Mr Lam, one of the Stipendiary Stewards, agreed that she had been responsible for the two acts of interference.

15. After deliberating, the Stewards decided to charge Miss Kan with careless riding pursuant to Rule 132(i) of the Rules of Racing, which reads :

"The rider of any horse who in the opinion of the Stewards rides in a dangerous, careless, reckless, improper or foul manner shall be guilty of an offence."

16. In response Miss Kan called no witnesses, nor did she mount a defence. Her trainer, Mr P.C. Kan, pleaded for leniency on the basis of her riding skills, clear record, and the fact that he himself felt partly to blame.

17. The Stewards found Miss Kan guilty of Careless Riding, and suspended her from riding for five racing days. When she was being disciplined the Chairman of the Panel, Mr Kwok, noted that the Stewards had taken into consideration that "because of your actions today, eight horses were interfered with, one clipped heels and one nearly went down, and one horse, a very good one, had to be destroyed." This latter remark echoed an observation earlier made at the Inquiry by Mr Pitts during the showing of the race video, when he had highlighted the first incident of interference and commented that "the result of this interference caused this very valuable horse to be destroyed." I apprehend that it is these observations which, in substantial part, have influenced the decision by the plaintiff to institute the present proceedings.

The plaintiff's case

18. The subrogated plaintiff, the insurer now standing in the shoes of Mr Poon, seeks to recover damages for 'Harbour Master's' value, certain transportation and quarantine costs and in addition, and somewhat oddly in the circumstances since nothing was paid by the insurer to Mr Poon in this regard, a claim for loss of future earnings of the horse. The action is brought in negligence. It is said that the Jockey Club, as the admitted employer of Miss Kan, is vicariously liable for the negligent riding which has caused loss and damage to the plaintiff. The 2nd defendant strongly disputes this claim.

19. It would appear, also, that this is an entirely novel case. The endeavours of leading counsel on both sides have failed to uncover anything similar. The case raises for the first time, in Hong Kong and quite possibly elsewhere, the issue of whether a duty of care is owed by a jockey to the owner of another horse participating in that race, and, if so, what is the ambit of such duty. It is with these questions, and with the consequent issues of breach of duty, causation and quantum of loss, that this judgment is concerned.

The duty of care

20. The question of whether Miss Kan, as a jockey, owed a duty of care at all to the owner of another horse in the race, is not a nettle which this court is required to grasp in this case. Whilst no doubt this would provide fertile ground for policy arguments, Mr Fok SC specifically accepted on behalf of the 2nd defendant that factors of foreseeability and proximity combined to support the existence of "a notional duty of care" owed by Apprentice Kan to Mr Dickson Poon, as owner of 'Harbour Master', in respect of the running of The Cable TV Cup on Sunday, 3 May 1998.

21. The concession thus having been made as to the primary issue, the concomitant question is the extent of such duty. And in this connection, as I have earlier noted, no previous case appears to exist which might purport to provide a direct answer. During the course of argument I have been referred to a number of well-known 'sports event' cases which analyse the standard of care owed to each other in a sporting endeavour by participant to participant, by referee to participant, and by participant to spectator at the event in question. Whilst useful in terms of general principle and broad approach, they do not really advance this particular matter a great deal further.

22. So far as the sport of horse-racing is concerned, a number of cases in other jurisdictions have considered the duty of care owed by a jockey to a fellow jockey in a race, albeit none have sounded to the duty owed to an owner : see, for example :

(in England)Caldwell v. Maguire & Anor., unrep., 1.2.01, Holland J, Caldwell v. Maguire & Anor., [2001] EWCA Civ. 1054;

(in Australia) Johnston v. Fraser (1990) 21 NSWLR 89, Hargreaves v. Hancock (1997) NSW Lexis 685, Kliese v. Pelling., unrep., 4.6.98, Chesterman J;

(in New York) Turcotte v. Fell (1986) NY Lexis 20856.

23. The matter thus proceeds upon relatively virgin soil. As to the appropriate standard of care, Mr Fok SC invited the court to hold that the standard of care owed by a jockey in a race to the owner of another horse in that race is a duty to avoid reckless or intentionally harmful conduct. For his part Mr Reyes SC, after a wide-ranging review of the authorities, submitted on the plaintiff's behalf that the invocation of the concept of 'reckless disregard' for the safety of others, or something yet higher as the relevant standard, was unsupported by the authorities, and in fact that the standard was simply that of negligence in the particular circumstances of the case. He fully recognized, however, that which has been termed "the distinction between the expression of legal principle and the practicalities of the evidential burden" (per Holland J in Caldwell, infra), and stated that if he was wrong, and if the standard was held to be encompassed by the epithet 'reckless disregard', in any event his submission was that Miss Kan's riding in The Cable TV Cup satisfied that benchmark.

24. In the circumstances of this case I do not think it is useful at the outset to attempt an exhaustive definition of the ambit of such duty as now has been conceded to have been owed by Miss Kan to Mr Poon. Perhaps a more constructive starting point is to consider what the relevant standard of care is not.

25. It seems tolerably clear that the degree of care owed by jockey to horse owner watching from the stands cannot be more onerous than is the standard of care such as exists in a race between jockey and jockey. Indeed, there is good reason why it should be considered less demanding. Fellow jockeys race against each other upon powerful and heavy animals at high speed and in close proximity and, it must be recognised, at real risk to life and limb. To the contrary, whilst I do not demean the sadness of losing a valuable animal, the onlooking owner suffers only potential loss to his wallet which, as in this case, is an insurable risk.

26. In light of the nature of racing, and also because jockeys are taken as willing to assume the particular risks inherent in their profession, the common law takes the view that the bar must to be set high in terms of a potential liability benchmark of one to the other, and that the lack of care required to be exhibited in order to ground liability in negligence of one jockey to another is inevitably a high one. In Caldwell, op.cit. a case in which a National Hunt jockey sued two of his fellow jockeys for injuries suffered in an incident that occurred in a hurdles race, the claim foundered because the conduct of the defendants could not be shown to be sufficiently serious to permit a finding of negligence. As Holland J expressed the position :

"Given the nature of such prevailing circumstances the threshold of liability is in practice inevitably high: the proof of a breach of duty will not flow from proof of no more than an error of judgment or from mere proof of momentary lapse in skill (and thus care) respectively when subject to the stresses of a race. Such are no more than incidents inherent in the nature of the sport. In practice it may therefore be difficult to prove any such breach of duty absent proof of conduct that in point of fact amounts to reckless disregard for the fellow contestant's safety. I emphasise the distinction between the expression of legal principle and the practicalities of the evidential burden..."

27. The approach taken by Holland J in Caldwell was approved in the same case in the English Court of Appeal, and as at first instance, that court took the opportunity to review many of what may be termed the 'sporting competition' cases.

28. The appellate court unanimously took the view that in thoroughbred horse racing it was not possible to characterise momentary carelessness as negligence, and concluded that notwithstanding the admitted failure of the defendant jockeys in Caldwell to check to see if the line they were taking was safe, such failure, in the words of Tuckey LJ, could not be characterised "as anything more than an error of judgment, an oversight or a lapse which any participant might be guilty of in the context of a race of this kind. It was the sort of accident which happens quite often...". In his concurring judgment, Judge LJ further observed as follows :

"We are here concerned with a split-second, virtually instantaneous, decision made by professional sportsmen entrusted with powerful animals, paid and required by the rules of their sport to ride them, at speed, to victory or, failing victory, to the best possible placing: in other words, to beat all the other horses in the race, or endeavour to do so. The course has no lanes; nor is it straight. The horse, as this case demonstrated, has a will of its own. The demands on professional jockeys to ride at all are very heavy. They require skill and physical and mental courage. To win, beyond skill and courage, they need determination and concentration, the ability rapidly to assess and re-assess the constantly changing racing conditions, and to adjust their own riding tactics accordingly - a quality that must depend in part on experience and in part on intuition or instinct.

Accidents and the risk of injury, sometimes catastrophic, both to horses and to riders, are an inevitable concomitant of every horse race - certainly over hurdles. All National Hunt jockeys know the risks. The rules of racing which bind them all, and the jockeys' own responsibilities to each other during the race, properly fulfilled, are intended to reduce the inevitable risks. But they cannot extinguish them. And, as a final ingredient, what is actually taking place on the real racecourse is not nearly as sanitised as it can appear to be even to spectators in the stand or, more particularly, to those watching at home on television. Jockeys and horses are often in close proximity to the other runners. There is a good deal of noise and inevitable tension. Mistakes by riders and horses are inevitable; and fortune, good or bad, plays its part in each race, as it does in any other sporting event."

29. These observations seem to me to possess equal resonance in the flat-racing context. On the assumption that a duty of care exists at all between Miss Kan as jockey and Mr Poon as horse owner (and the existence of such duty is not in issue in this case), I am inclined to the view that the requisite standard of care adopted in Caldwell in order to establish actionable negligence as between jockey and jockey fails to pitch the liability threshold high enough in a case such as the present.

30. In my judgment, in order for a jockey to be liable to the owner of another horse for injury to that horse in a race, that jockey must be seen to evince flagrant conduct of a type clearly unrelated to the normal demands inherent in competitive horse racing. It is only when a jockey's conduct can be pitched at such abnormal level, it seems to me, that the law should contemplate liability in negligence of jockey to such horse owner, who, given the nature and inherent risks of the sport, must be taken voluntarily to have accepted the risk of damage to his horse within the normal demands of thoroughbred racing.

31. In the circumstances, therefore, it does not seem greatly to matter whether, as a question purely of legal principle, this conclusion is reached via the route of 'reasonable care appropriate in all the circumstances', such circumstances weighing upon the ambit of such duty, or whether in effect it is arrived at on the basis that the participants in the sport, including the onlooking horse owners, impliedly consent to risks which are endemic in the sport and which otherwise might constitute a breach of the duty of care. This broadly appears to be the type of approach adopted by Lord Donaldson in Condon v. Basi, [1985] 1 WLR 866, and it is one with which I respectfully agree.

32. Accordingly, having set the liability bar at what in my judgment is the relevant height, I move to consider whether it may legitimately be said that Miss Kan's riding in The Cable TV Cup is such as to enable the subrogated plaintiff successfully to assert that Miss Kan was in breach of her duty of care to Mr Poon.

Breach of care

33. Much time in this trial has been taken up with debate as to Miss Kan's riding in this race.

34. The court has had the assistance of expert evidence on the issue, of patrol camera videotape taken from several vantage points during the course of the race, and of certain of those images having been transferred to time-coded CD Roms, which have enabled the opening sequence of the race to be viewed frame by frame.

35. This analysis takes place against a background in which professional racing men charged with overseeing Hong Kong racing have given their view of Miss Kan's riding conduct, the Racing Stewards for that particular racing meeting having found her guilty of the charge of Careless Riding under Rule 132(i).

36. In connection with this Steward's inquiry the court has also had the advantage of hearing from two of the stipendiary stewards then involved, Mr Christopher Lee, now retired, and Mr Tony Lam. I accept their evidence, both generally and with specific reference to the inquiry which took place after the running of The Cable TV Cup.

37. Mr Lee's evidence was that the stewards chose to charge Apprentice Kan with careless riding because in their opinion she did not exercise sufficient judgment when carrying out her trainer's instructions, because she was an inexperienced ten pound claiming apprentice, and because in fact she had looked before she moved and it appeared that she had misjudged the position before moving her horse across.

38. Moreover, so far as the Jockey Club was concerned, Mr Lee noted that of the two incidents of interference which had taken place, the Stewards considered the second incident - which had led to 'Privilege' clipping heels - the more serious than the first, since it was potentially the more dangerous.

39. Accordingly, if the professionals have taken the view that they clearly did, for the particular reasons that now have been outlined by Mr Lee, it is somewhat disconcerting that this court now should be asked to substitute its own judgment some four years after the events in question. It is clear, of course, that the 'Careless Riding' finding of the Stewards is not binding on this court and is not determinative of negligence, albeit clearly it is a relevant matter to be taken into account.

40. In terms of the criticism of Miss Kan, the main thrust of the plaintiff's case comes from the evidence of Major PHK Steveney, a former army cavalry officer who for 20 years, from 1974 to 1994, had been employed by the British Jockey Club as Steward's Secretary, and latterly Senior Steward's Secretary. As Steward's Secretary, Major Steveney acted as professional adviser to panels of local stewards throughout England on, amongst other things, the interpretation of video evidence relating to interference and other racing incidents. From 1994 to 1998 he had also acted as steward at two northern racecourses, and currently runs his own racing promotion company.

41. Major Steveney, who gave evidence to this court untrammelled by direct knowledge of Hong Kong racing - he had, I believe, attended a race meeting in Hong Kong in 1955 and again in 1989 - clearly took a dim view of Miss Kan's riding. He had reviewed the race tapes, and maintained that if this race had been run under British Jockey Club Rules, Miss Kan would have faced a charge of "irresponsible riding of a serious nature" in the first incident, and that in the second incident of interference "she would have been facing the more serious charge of reckless riding". He added that, under British rules, she would have been found guilty of both charges and that her horse would have been facing "mandatory disqualification for both incidents".

42. In responding to cross-examination Major Steveney felt able to classify the entire incident of Miss Yu's riding to the first bend as "reckless disregard for her fellow contestants' safety", and, in response to a question from the Bench, went so far as to agree that on that basis the stewards should have had Miss Kan off the track for six months.

43. Mr Ron Quinton, an Australian former jockey and currently trainer, also gave evidence for the plaintiff by video-link from Sydney. He suggested that Miss Kan was clearly at fault in cutting across to the bend when she was not clear of the horses to her inside, and that if she was going to try and make the inside of the bend, in his view "she should have taken a softer line inwards". He also expressed the opinion that her actions were bound to lead to a Stewards' Inquiry, and that she was fortunate to escape with a finding of careless rather than dangerous riding.

44. For the defendant, Mr Bill Burnett and Mr Lex Cummings gave their expert opinions on the riding issue.

45. Mr Cummings, a former jockey, trainer and stipendiary steward (the latter mainly in Australian harness-racing) did not share the critical views of Major Steveney and Mr Quinton. He stated that Jockey Kan's involvement in the first incident exhibited the standard "of a reasonably competent jockey in the circumstances". His opinion was that upon Miss Kan moving in there had been "an overreaction" by Apprentice Mok on 'City Patrol', and noted that it was important to bear in mind that during the first incident there had been no physical contact between 'Winning Scene' and 'City Patrol'. He suggested that in the first incident such contact as there had been involving 'Harbour Master' was caused by Mok's "over-anticipation" on his mount, albeit Mr Cummings did not dispute the ultimate careless riding decision which was imposed on Miss Kan, given the nature of the second incident of interference, which he felt was the more serious.

46. Mr Burnett, a former jockey in Hong Kong in the period from 1974 to 1985, during which time he had ridden some 1962 races, was the principal expert witness for the defendant, and gave evidence at some length. As might be anticipated from his background, he demonstrated considerable knowledge of racing conditions in Hong Kong, and insight into race riding, and I found his evidence generally to be persuasive. He made the point that the unpredictable nature of a highly-strung racehorse could result in the type of incident that befell Apprentice Kan, his essential thesis being that Jockey Mok on 'City Patrol' "checked in anticipation" at what he thought was going to be contact from 'Winning Scene', and that had Apprentice Mok not "overreacted" as he did it was likely that no interference may in fact have occurred.

47. Mr Burnett stressed that in his view Miss Kan was perfectly entitled to move into the "free ground" on the inside of 'Winning Scene' up to the point "where he starts to get to City Patrol's line", and that the reaction of 'City Patrol' in shying away contrived to make the first incident look far worse than in fact it was. A jockey could not reasonably legislate for a horse which may shy by reason of an abrupt move, said Mr Burnett - if Miss Kan had known he might do this she obviously would have stayed well away from him - and in his opinion 'City Patrol', which also had an apprentice on board, appeared to him to be a fairly erratic sort, "a nervous type of horse", which in this race was running with blinkers. In his opinion, had 'City Patrol' not shied, the interference would have been minimal, and thus nothing on the inside of 'City Patrol' would have been interfered with to any great extent.

48. Mr Burnett further took the view that a charge of Careless Riding, particularly in terms of the first incident of interference, was "extreme". Indeed, in his view 'City Patrol' had overreacted in the second incident also. The normal bumping and jostling of horses into the first bend did not usually cause horses to move off their line, he said, and it was unfortunate that 'Privilege' was back in the area where he was just clearing the heels of the horse in front. In the circumstance, said Mr Burnett, Miss Kan, as an inexperienced ten pound claimer, was unlucky to be suspended and to get a sentence of five days. But given that she had not mounted a defence, which was well open to her in the circumstances - "I think she would have worked her way around it, she would have got the benefit of the doubt or possibly a reprimand" - as a result he accepted that the Stewards probably had little alternative but to do as they did.

49. I have reflected upon the expert evidence on both sides. I have also had the opportunity to hear from Mr Mok, the rider of 'City Patrol', and from Mr Basil Marcus, who was on 'Celestial Fortune'. Mr Mok stated that his horse was "frightened", which is why it shied away, and in cross-examination downplayed the criticism of Miss Kan : "she just tried to get the best position, but failed", and further accepted that he "had a part" in what had occurred.

50. For his part Mr Marcus, a Hong Kong Champion Jockey and a man of enormous racing experience, although picking his words carefully nevertheless he left the court in no doubt what he felt. In answer to a question from the Bench, he observed :

" In all races, when most jockeys are drawn on the outside, they try to get in. You have three options, either to go forward, stay wide, or come back and go behind the horses at the back. So everybody is attempting to get the best position they feel is right for their horse, and all jockeys try to ride to the instructions of their trainers.

I think this was an unfortunate incident where there was quite a lot of contact between horses, and it can happen so easily. You know, with 14 horses in a race, there always can be bumping and scrimmages and easing and checking, and that is the actual nature of racing. However safe we try to ride, there are always going to be incidents that happen like this. ...."

51. Whilst I bear in mind that Mr Marcus was called as a witness of fact and not as an expert - he, after all, was one of the riders in this race - I am disinclined to ignore his thoughts when considering the important issue of Miss Kan's riding.

52. At the end of the day, after reflecting upon the evidence and the stringent criticisms which have been laid at Miss Kan's door by the witnesses called for the plaintiff, I am in no doubt that she does not deserve the opprobrium which has been heaped upon her riding during this case. On this issue, I strongly favour the defence evidence. And whilst, as I have said, the court instinctively is chary of being asked to second guess the views of the professional stipendiaries and the other Race Day Stewards who dealt with Miss Kan on the day in question, I am bound to observe that I have seen and heard nothing in the course of this case to cause me think that the Race Day Stewards were in error.

53. The short and ineluctable point is that this was a racing incident and, so far as the injury to 'Harbour Master' is concerned, a racing accident. On the present facts, the attempt to classify Miss Kan's riding as evincing the degree of lack of care required in the horse racing context in order to bring home a negligence suit of this type fails, and, in my judgment, fails by a very considerable margin. And I hold this demonstrably to be the case whether the Caldwell benchmark of 'reckless disregard' is adopted, or whether Miss Kan's conduct is judged against the enhanced threshold that I have suggested is appropriate before liability could be attracted.

54. Miss Kan clearly was doing her best to carry out her trainer's instructions and to obtain the best possible placing for her horse. Had she done otherwise she would have been at the risk of substantially harsher criticism under the Rules of Racing. In her efforts to do so, she was responsible for an error of judgment, conduct for which she was duly penalized. But there is a world of difference between response by the regulatory authority and response by the courts in terms of a finding of legal liability. The suggestion now made that her errors of judgment in this race constituted riding sufficient to open the door to a negligence suit at the instance of the owner of another horse in that race is one which, in my view, is without merit. Horse racing is horse racing. It carries benefits and burdens for all who choose to be involved. To mirror the words of Holland J in Caldwell, in this case "we are a long way from the sort of conduct that triggers a response from the Courts as well as from the Stewards".

Causation

55. The finding that the cause of action cannot be sustained on the facts of this case is sufficient in itself to decide this case. I turn now, however, to the other factual issue which has been subject to vigorous debate in this trial, namely, whether there was any causative effect between the actions of Miss Kan on 'Winning Scene' and the severe leg injury subsequently found to have been suffered by 'Harbour Master' during the running of The Cable TV Handicap. In practical terms, this question crystallizes into the following subsets : where did the injury occur, and precisely how did it happen?

56. On this issue, Major Steveney again led the charge for the plaintiff. His theory, developed from painstaking analysis of the video images transposed to the CD Roms, suggested that 'Harbour Master' had received its injury - the complete severance of its superficial digital flexor tendon on the rear of its right foreleg - as the result of being kicked by the left front leg of 'Celestial Fortune' during the first incident of interference. This had occurred, opined Major Steveney, during the sequence when 'City Patrol' had shied to its right, thereby causing it to make contact with 'Harbour Master's' shoulder, which in turn had pushed 'Harbour Master' into 'Celestial Fortune', 'Harbour Master's' right hind quarter then making contact with 'Celestial Fortune's' nearside left shoulder. And it was precisely at this juncture, Major Steveney suggested, that 'Harbour Master' had received "a hell of a bang" from a forward strike of 'Celestial Fortune's' outstretched left foreleg.

57. Major Steveney said that it had not taken much more than five minutes of study to work out what had happened. In fact, his neighbour in Yorkshire, a flat race trainer whom he had asked for his opinion, apparently had concurred with his initial view as to where the injury must have occurred. However, said Major Steveney, what had taken "an enormously long time" was actually to "prove" where the injury had occurred and what had caused it. This had necessitated "many hours of detailed study".

58. The end result of these deliberations represents the fulcrum of the plaintiff's case, because, of course, absent establishment of a causal link between Miss Kan's riding and the injury suffered by 'Harbour Master', the plaintiff's case necessarily would fail on this ground. In this context, Major Steveney maintained that, with the aid of the CD Rom images, which are able to be broken down into time-coded individual frames, a shadow, identified as the left foreleg of 'Celestial Fortune' going forward, could be seen in frames 10.11 and 10.12, this shadow appearing behind the right foreleg of 'Harbour Master'. And, said Major Steveney, "bang, that is where it occurred". During Mr Fok's probing cross-examination, Major Steveney was at pains to refute the suggestion that it simply was insufficiently clear from the freeze-frame images to enable it conclusively to be shown that that was the point at which such collision of legs took place. He also disagreed with the suggestion, given that the collision between 'Harbour Master' and 'Celestial Fortune' was hind quarter to shoulder, and given the angle at which these two horses then presented - with 'Celestial Fortune' being shunted to the right by the force of the bump from 'Harbour Master' - that it was highly improbable that at that moment the strike had occurred by means of 'Celestial Fortune's' outstretched left leg moving out to the left to cut into the back of 'Harbour Master's' right foreleg.

59. Major Steveney left the court with the impression that he entertained no doubt whatever as to the cause of the injury, and that he was entirely satisfied with his theory - Mr Fok SC subsequently referred to it as "his creed" - namely that the left foreleg to right foreleg impact had taken place as and when he described it. This paved the way for Mr Reyes SC, for the plaintiff, to suggest during his final submission that the moment and point of strike in fact could be identified in the manner Major Steveney had suggested.

60. My difficulty, however, is that when all is said and done I cannot see it. I can perceive a lurking shadow amidst a jumble of forelimbs, but I cannot positively see anything that demonstrably may be considered to constitute a foreleg to foreleg strike. I appreciate why Major Steveney says that he takes the view that he does, but in terms of the shadow upon which reliance is based, the frontal camera angle of the individual frames permits of no depth perception, so that whatever that image may represent or imply, it seems to me, can only be an exercise in extrapolation.

61. Other things being equal, perhaps it is not unreasonable to posit that the strike to 'Harbour Master's' right foreleg took place as and when the plaintiff alleges it did. Given the bumping and jostling of the relevant horses at that stage of the race, untoward damage to a foreleg of the type sustained by 'Harbour Master' in itself may not be unduly surprising. Two of the Race Day stewards clearly thought that this was the case - vide the observations of Mr Pitts and the Chairman, Mr Kwok - although Mr Lee and Mr Lam have made it clear to the court that this was neither a unanimous view among the stewards nor a view which they themselves shared. It may be useful to record at this stage that I have not paid a great deal of attention to these observations made in the Stewards' Inquiry, and Mr Reyes SC, in my view correctly, ultimately chose to place little emphasis upon them : that Inquiry took but 30 to 40 minutes at the outside on the evening of that race day, with its sole focus being that of Miss Kan's riding, and whilst understandable given the tragic loss of 'Harbour Master' but a short time before, it is not difficult to regard the observations then made as incidental to the matter in hand and in no way determinative of how the injury in fact had occurred.

62. In any event, whatever may or may not have been the view of others, the plaintiff now asks this court to accept, on the balance of probability, that the injury to 'Harbour Master' took place in accordance with Major Steveney's thesis. The problem with this theory, however, is that it is not consistent with other objectively-available data. In this connection, two particular circumstances stand out.

63. First, given the considerable force of the impact which it is agreed must have taken place in order completely to sever the superficial digital flexor tendon at the rear of 'Harbour Master's' right foreleg, it is curious that neither Miss Carol Yu, the apprentice on board 'Harbour Master' nor Mr Marcus, riding 'Celestial Fortune', appeared at the time to have felt anything approximating to what Major Steveney referred to as "a hell of a bang", and that which Mr Ordidge, the veterinarian subsequently called by the plaintiff, was minded, at least initially, to characterize as "a bloody good kicking".

64. In his evidence, to which I accord due weight given his expertise and experience, Mr Marcus observed that a jockey would feel heavy contact, such as a bump, and also that in terms of contact sufficiently hard to sever a foreleg tendon there was no doubt that also would be felt : "if you strike into a horse hard, then you would feel that as well." Mr Marcus said that, having refreshed his memory of the race from the video, the only contact that he could remember from the race was the hard bump between 'Harbour Master's' right hind quarter and 'Celestial Fortune's' left shoulder. He had no recollection of anything else. Moreover, when asked to view the time-coded video sequence, he was unable to discern the point of the alleged strike, and when asked whether, having seen the video images, he believed that his horse's left foreleg had struck into 'Harbour Master's' right foreleg, his response was "I would not have thought so".

65. The second circumstance tending to contradict the thesis that the damage to 'Harbour Master' took place during the first incident of interference at the beginning of the race is the manner in which 'Harbour Master' actually ran in the race.

66. It is quite clear from the various videos that, at least up until the 1,000 metre marker, 'Harbour Master' was running on strongly and, in fact, had moved up to third or fourth position to challenge the leaders. Up to this point, therefore, he was moving smoothly and was very much in contention.

67. What occurs at, or not far past, the 1,000 metre pole is that 'Harbour Master' appears to stumble - from the frontal patrol camera 3 angle there is a pronounced dip of his head - before Miss Yu picks him up and continues racing. Mr Bill Burnett maintained that from about 1,000 metres to 800 metres the horse's stride pattern began to become uneven, but in any event what can clearly be seen from the video is that from about 800 metres out 'Harbour Master' begins to be in obvious difficulty, his stride pattern starts to labour, and he drops out of the race very rapidly with the rest of the field surging past as they turn into the last bend and race for home.

68. It follows, therefore, that if indeed 'Harbour Master' was injured at the beginning of the race as alleged, the stark fact remains that the horse nevertheless galloped smoothly and in contention for at least a further 800 metres, and possibly more, before it began to suffer from the impact of what is agreed to be a most serious injury and (as in fact occurred) at or about the 800 metre mark began to manifest the effects of that injury and to falter badly in its running.

69. The video evidence that 'Harbour Master' evinced no distress or discomfort until approximately 800 metres from the end of the race is corroborated by its jockey, Miss Yu, who stated that from the point of the bumping at the beginning of the race until approximately 800 metres from the end that 'Harbour Master' ran "normally and without any sign of injury, pain or upset" until, at that point, "'Harbour Master' began suddenly to slow down".

70. Whether a racehorse would be able thus to continue to gallop for over 800 metres without any sign of impairment, notwithstanding the complete severance of a superficial digital flexor tendon, has been subject to yet more difference of opinion. In fact, all the experts in this case, whether racing or veterinary, had distinct views upon this issue.

71. This must, perhaps, be a matter primarily for the expert veterinary evidence. In this context the court was assisted by Mr Ordidge, who runs an equine veterinary clinic in Yorkshire, and, I gather, also is a neighbour of Major Steveney, and Dr Bourke, an Australian veterinarian, now retired, but who had been a racecourse vet at Australian tracks for some 34 years.

72. Utilising diagrams from veterinary texts, Mr Ordidge helpfully described the position and function of the superficial digital flexor tendon, which constitutes one of the three suspensory systems within a horse's foreleg. He pointed out, given the absence of photographs of 'Harbour Master's' leg after the injury, that it was not possible to say for certain at what place on the foreleg the strike had occurred, although after considering the post-mortem report and the post-mortem photographs of the severed tendon itself, he felt that the strike had taken place higher rather than lower on the rear of the foreleg. This was one of the factors which led him to believe that it was likely that the horse had been kicked by another horse, rather than having "overreached" and having damaged itself.

73. Mr Ordidge also took the view that it was "perfectly possible" for 'Harbour Master' to have incurred the injury at the beginning of the race, and thereafter to have continued to race in the manner of a sound horse, and referred to an article published in 1997 in a journal of equine medicine - 'Laceration or Rupture of the Digital Flexor Tendons' by Messrs Green and Tong - which suggested that flexor tendon rupture or laceration was not always immediately accompanied by severe lameness, which may take up to 30 minutes to manifest. Mr Ordidge said he had had experience of this, as also had Major Steveney, who in his evidence recounted once riding a hunter and having been unaware of his horse's serious tendon injury until it was pointed out to him.

74. Dr John Bourke took a contrary view. Now retired, for many years he had been a veterinarian in Australia specializing in supervision and administration of veterinary aspects of thoroughbred racing, and he possessed an impressive resum?, including publication in diverse veterinary journals.

75. He stated that the post-mortem report by the Jockey Club Veterinary Department was unclear on the location of the injury to 'Harbour Master's' right foreleg, describing a laceration on "the latero-palmar proximal third" and a "ruptured superficial flexor tendon at the mid-third to distal third". He also pointed out that the post-mortem photographs suggested that the tendon rupture was lower rather than higher, and certainly not "at the top of the cannon bone", as Mr Ordidge had surmised.

76. Dr Bourke also had had experience of severed tendons of this type, and whilst he accepted that a horse thus injured might not immediately react to pain, given the release of endomorphins and other chemicals engendered under racing conditions, nevertheless a horse carrying such an injury would not be expected to perform as 'Harbour Master' actually did if indeed the injury had been sustained prior to the first bend. Dr Bourke's opinion was that if 'Harbour Master' in fact had been injured as and where the plaintiff alleged, it could and would not have maintained its apparently free and co-ordinated galloping action, and (as it did) would not have stretched out after this point and raced competitively. So that, from a veterinary viewpoint, he could not accept that 'Harbour Master' had been injured before going into the first bend, and stated that in his opinion it was only from the 800 metre mark onward that 'Harbour Master's' performance was wholly consistent with the injury which it had suffered. When pressed in cross-examination, Dr Bourke stated that after suffering such injury a horse might be able to continue to run for a short way - he suggested four to five strides or so - before the horse's action at least would begin to indicate that something was amiss.

77. Dr Bourke further agreed that in order to incur this type of injury considerable force would have to have been required, and suggested that the severed ends of the superficial digital flexor tendon revealed in the post-mortem photographs did not suggest a scalpel type of cut, but more of a "crushing cut". In the circumstances, therefore, Dr Bourke considered it more likely than not that in the course of running during the latter part of the race that 'Harbour Master' had overreached in his galloping action and had hit his front right foreleg with his contra-lateral hind leg, that is, his left hind leg.

78. On this issue, Mr Burnett and Mr Cummings expressed incredulity at the idea that 'Harbour Master' could have kept running as he did for over 800 metres or so. Indeed, they each went so far as to label such a phenomenon as "impossible". Mr Burnett also thought that 'Harbour Master' had overreached and had struck itself at the time of its stumble at or about 1,000 metre mark, and that after that point the horse had never been travelling well, although he thought that the striking leg might well have been the right hind leg.

79. Although not called as an expert as such, Mr Christopher Lee's opinion was that it was highly unlikely that a horse with 'Harbour Master's' injury which had been suffered at the beginning of a race could have galloped as it did, and he remained of the view that the injury could have been sustained late in the race "possibly as a consequence of his off hind foot striking his off foreleg". Mr Tony Lam similarly shared the same opinion, saying it was more likely than not that 'Harbour Master' had struck himself late in the race.

80. At the end of the day the court has to take a view on the evidence before it. Strong views have been expressed on either side, and whilst this perhaps is an unusual case which has led to the proper boundaries of expert evidence becoming somewhat blurred, it is worth observing, yet again, that the task of the true expert is to present and not to proselytize. Be that as it may. Mr Fok SC has reminded me that the burden is upon the plaintiff to satisfy the court that the injury occurred when the plaintiff said it did, and that the defendant has to prove nothing, although the defence had seen fit to put up an alternative scenario.

81. For my own part, on the balance of probability I cannot and do not accept that 'Harbour Master' could have continued to run smoothly and unimpaired for over 800 metres if indeed he had been injured in the first incident of interference prior to the first bend. Despite the zealous efforts of Mr Ordidge and Major Steveney to argue to the contrary, I prefer the evidence for the defence on this issue, and reject the plaintiff's position. In my view, all the circumstances of this case point to the probability of 'Harbour Master' having injured himself by overreaching, and that such injury occurred at a point between 1,000 metre and 800 metre marker poles towards the end of the race. Any other conclusion, it seems to me, would fly in the face of the weight of the evidence.

82. On the basis of this conclusion, therefore, I find that the plaintiff has failed to establish any causal link between Miss Kan's riding on 'Winning Scene', and the damage suffered by 'Harbour Master' of which complaint is made in this action. Accordingly, I hold that the plaintiff fails on this basis also.

Quantum

83. Liability not having been established, strictly quantum does not arise for consideration. Lest this matter be taken further, however, I should perhaps make some brief observations, although it is fair to say that neither leading counsel had much to say on the topic.

84. Had this case succeeded, as a matter purely of quantum the defendant did not dispute the principal sum claimed as representing the value of the horse, in this case set at US$600,000, 'Harbour Master's' purchase price, nor did any dispute arise with regard to the claim (introduced by re-amendment) for the further sum of HK$75,713.71, representing certain transportation and quarantine costs.

85. As to loss of future earnings of the horse, Mr Reyes put forward a sum arrived at by subtracting the cost of one year's maintenance from a figure representing the adjusted average prize money per horse of that class. In response, Mr Fok was not minded to dispute this formula, but submitted that the figure of HK$162,352 as claimed under this head failed to take account of livery charges, entry fees and the riding fees which would have been incurred in order to earn the winnings now said to have been lost. These sums, said Mr Fok, amounted on an averaged basis over one year to HK$112,000.08. To this Mr Reyes made no demur, so that, in effect, the sum of HK$52,351.92 was agreed as a notional figure for loss of future earnings.

86. The end result, therefore, had liability been established and quantum thus of relevance, is that the court would have awarded US$600,000, plus the further sum of HK$128,065.63.

The action against Miss Kan

87. By a Consent Summons dated 18 March 2002 the plaintiff's claim against Miss Kan, the 1st defendant, was discontinued with no order to costs. It was further agreed that the costs of the 1st defendant up to her death on 21 March 1999 were to be treated as part of the costs of the 2nd defendant in this action, and the costs as between the plaintiff and the 1st defendant up to her death were to be treated as costs in the cause between the plaintiff and the 2nd defendant.

Order

88. For the reasons given in this judgment, I order that the plaintiff's action against the 2nd defendant be dismissed. I further make an order nisi that the costs of this action be paid by the plaintiff to the 2nd defendant, such costs to be taxed if not agreed.