Plaintiff v Defendants

2 As a result of his injuries Mr Robertson received payments of compensation from the Victorian WorkCover Authority (VWA) which now seeks recovery, pursuant to s 138 of the Accident Compensation Act 1985 (Vic) (the Act), of those payments from the defendants, Kevin and Tanneth O'Brien (the O'Briens). The O'Briens own Lauriston Farm.

3 Although the relationship between Mr Robertson and the O'Briens was, in effect, one of employee and employer, the VWA, pursuant to provisions of the Racing Act 1958 (Vic), was obliged to make payments of compensation. In a s 138 recovery proceeding, for practical purposes, VWA stands in the shoes of the injured worker. Here, the pleaded case brought by VWA, alleges breaches of common law and statutory duties said to be owed by the O'Briens to Mr Robertson.

4 It was common ground that on 26 June 2008, Mr Robertson was working his horse in the company of another horse during the early hours of the morning on the Lauriston Farm training track. On the first lap, when cantering, the horse shied and shifted rapidly to its near side (the left) colliding with a wooden running rail (the accident).

5 Mr Robertson's left leg was sandwiched between the horse and the rail, resulting in multiple fractures to his leg that has left him with considerable ongoing disability.

(a) was it reasonable for the O'Briens to require Mr Robertson to ride track work at a time prior to sunrise. The answer to this question, at least in part, turns upon my findings as to the time at which the accident occurred and the light conditions as at the time of the accident; and

(b) if the answer to (a) is yes, whether working the horse in those conditions was a cause of Mr Robertson's injuries.

7 Understandably, counsel for VWA did not make any submissions on the breach of statutory duty (alleged in the statement of claim) which I have, accordingly, put to one side.

8 Many of the factual matters in this case were not in issue.

9 Lauriston Farm is located at 245 Guy Road, Corinella. In 2002, a private training facility was built by the O'Briens. In June 2008, this comprised a stable block (with other facilities) that was adjacent to a training track, which had a fixed wooden running rail (the inside rail).

10 Whilst the property is owned by the O'Briens, in June 2008 their son Mr James O'Brien (who gave evidence in this proceeding) managed its day to day operations. At that time, a licensed racehorse trainer, Mr Ricky Maund (who also gave evidence), trained horses owned by the O'Briens at the Lauriston Farm, with the assistance of approximately ten staff; including several track riders: Mr Robertson, Mr Shea Eden and Mr Harley Ricketts (each of whom also gave evidence).

11 Mr Barry Lockwood (who gave evidence) and Mr James Brennan (an OH&S officer who was not called) assisted Mr Maund in managing the training of the horses.

12 There were about 10 to 12 horses in work at Lauriston Farm. The daily program for each horse was determined by Mr Maund and set out on a white board in the tearoom, located in the stable area.

13 The track, which is shown in Photograph A below[1] , was five to six metres wide, with fairly tight turns, and about 800-900 metres in distance. The inside running rail was of post and rail construction and was painted white. The track was only able to accommodate slow work (that is trotting and cantering); fast work (that is just below, or at, about race pace) required the horses to be taken to the Cranbourne training facility.[2]

14 In June 2008, the standard routine employed by Mr Maund was for a stabled horse, that was about to be worked on the track, to be taken to a mechanical walker and warmed up on that machine for approximately 10-15 minutes.[3] Afterwards, the horse would be ridden by the track rider onto the track and worked either alone or with a 'mate' (another horse).

15 Mr Robertson started working for the O'Briens in about February 2008 as a track rider.

16 In the early morning of 26 June 2008, Mr Robertson was riding Super Sequalo, a fairly nondescript but quiet gelding.[4] He was about 'two to three feet' (perhaps a metre) out from the rail, and was accompanied by a horse ridden by Mr Ricketts, about three to four feet on Super Sequalo's outside.[5] The horses had worked to the western part of the track heading towards Guy Road. Both Mr Robertson and Mr Ricketts agreed that Super Sequalo, without warning, suddenly altered course, veered to the left, and struck the rail, crushing Mr Robertson's left leg against the fixed wooden running rail.[6] I shall return to the precise circumstances of the accident later.

17 Fortunately, Mr Robertson was able to pull his horse up within a short distance from where the injury occurred - on the southern part of the track - closer to the stables, where he dismounted and then lay on the track. He was eventually driven by Mr Eden, in a four-wheel-drive vehicle, from the track to the stable complex and then taken by ambulance to the Frankston Hospital.

18 Photograph B below,[7] taken looking south towards Guy Road and the southwestern corner, shows where the accident occurred:

What were the light conditions at the time of Mr Robertson's injury?

19 The two primary interrelated questions are as follows:

(a) at what time did Mr Robertson's accident occur; and

(b) at the time of the accident, what was the state of the light?

20 The following facts, relevant to answering the above questions, were not in issue.

(a) With the exception of Mr Eden, the track riders would commence work at 5.00am. Mr Eden would start at 6.00am.[8]

(i) the ambulance was called from the stables at 7.00am and arrived at 7.07am;[9]

(ii) first civil light (when the sun is between six degrees below the horizon and just coming up to the horizon) was at 7.07am;[10]

(iv) at the time the ambulance was called Mr Robertson had been taken to the tea room;[12]

(c) Within a month or so of the accident, large fixed lights were erected in the centre of the course with the purpose of illuminating the track.

21 The stable complex comprised the stables, a wash area and a mechanical walker. The wash area and the walker were located west of the stable complex (the larger building shown on Photograph A and marked in yellow). The wash area is located on a raised piece of ground approximately 30-40 metres east of the track and also marked in yellow on Photograph A.

22 Mr Robertson said that the accident occurred between 5.20am and 5.45am.[13] He was adamant that when he suffered the injury he was riding his first horse for the day, which he had taken off the walker.[14] Mr Robertson made his estimate of the time of the accident based on the fact that the process of a horse being placed on the walker, removed, and then taken onto the track, would take no longer than half an hour (usually shorter) and that he normally started work at 5.00am.

23 This estimate, however, does not accord with the preponderance of the other evidence given in the case.

24 First Mr Eden (an impressive and, to my mind, accurate witness whose evidence I accept) gave evidence that he usually arrived at Lauriston Farm at 6.00am[15] - this was agreed by everyone, including Mr Robertson. Shortly after commencing work on 26 June 2008, he was hosing down a horse in the wash bay and observed a horse (riderless heading along the track towards the stable area).[16] Mr Eden says that he looked up and saw a jockey on the ground and another jockey mounted on a horse about 300 metres[17] away on the southern side of the track. Mr Eden said 'I at that time couldn't distinguish which rider it was but I just could see a horse and a rider and I could see that that's the position or the spot where there was the - the rider off the horse'.[18] Based on the stable diary[19] he said it was possible that the accident occurred about 6.40am.[20]

25 Mr Eden said that he took a motorbike and went to investigate and, having observed Mr Robertson's predicament, went back to the stable, picked up a four-wheel-drive vehicle and drove back to where Mr Robertson lay. He then collected Mr Robertson and took him back to the tearoom. He estimated that all this took about 10 or 15 minutes.[21]

26 Mr Ricketts, whose evidence on this issue was understandably vague (he was 17 or 18 at the time and had only a passing recollection of what happened), agreed that the accident occurred about 6.30am.[22] He was adamant (despite testing cross-examination) that, contrary to Mr Robertson's account, he had worked two horses and was riding his third horse for the morning.[23]

27 Mr Maund, said that he was at the track at approximately 5.10am on the morning of the accident.[24] He did not witness the accident and only saw Mr Robertson shortly afterwards when he had been transported back to the stable area.

28 He said that the jockeys usually arrived at the track around 5.00am and read the work board, which set out their tasks for the day.[25] He went on to say that it would take approximately 15 minutes to 'get the first lot of horses ready'.[26]

29 Before taking a horse onto the track Mr Maund said that the horses kept in the stables were warmed up on a horse walker, however horses that were out in the paddocks did not need warming up because they had already exercised in the paddock.[27] He could not remember if Super Sequalo, the horse Mr Robertson was riding on the morning of the accident was in the stables or elsewhere.[28]

30 On the morning of Mr Robertson's accident, Mr Maund said that at some time between 6.30am to 6.45am, he noticed a 'loose horse' in the saddling area and said that this is where horses returned after they lost their rider.[29] He saw Mr Robertson for the first time, after the accident back in the tea room roughly 10-12 minutes after he saw the loose horse.[30]

31 Mr Maund also said that by about 6.30am, Mr Robertson would have been up to riding his second or third horse for that morning.[31]

32 There are three documents which offer support to the accident occurring between 6.30am and 6.45am:

33 The ambulance records notes the call being made at 7.00am and the ambulance arriving at location seven minutes later.[32] This accords with Mr Eden's recollection that the ambulance arrived very quickly.[33]

34 The stable diary, completed by an unknown person, records that at 6.40am 'Scrooge riding super track...collided with running rail - ambulance called and taken too (sic) hospital'.[34]

35 In Mr Robertson's injury claim form signed by him on 3 July 2008 - but not completed by him - the date and time of the injury is said to be 6.30am on 26 June 2006[35] - although it is not at all clear where the information in the form came from.[36]

36 I do not accept Mr Robertson's evidence as to the time at which the accident occurred; being as kind as I can, I think it is a reconstruction affected by the passage of time. A harsher criticism would be that his estimate was made to support his own personal injuries claim. Whatever the case, the preponderance of the evidence of the witnesses working at the farm that morning is that the accident occurred at between 6.30am and 6.45am.

37 Moreover, it is inconceivable that Mr Robertson was left waiting for over an hour before an ambulance was called - as would have to be the case if his version of events was accepted. On the other hand, the happening of the fall at or around 6.30am-6.45am and then 15 minutes or so elapsing before Mr Robertson arrived in the tea room, sits comfortably with a call to the Ambulance Service being made at or about 7.00am and the ambulance arriving shortly thereafter.

38 It follows that I am satisfied that the accident occurred between 6.30am and 6.45am - that is, between ¾ of an hour and one hour before sunrise.

What was the state of the light at the time of the accident - including artificial lighting of the track?

39 The three major and related issues to be resolved are:

(a) what, if any, lighting and degree of illumination was afforded by a light erected above the stables;

(b) was there any other artificial lighting surrounding the track; and

(c) what was the actual state of the light for horses and riders working on the track at between 6.30am and 6.45am?

40 The evidence concerning the state of the artificial lighting was a moveable feast, complicated by the fact that, after Mr Robertson's accident, two additional lights were erected at the track.

41 There was, however, unanimity as to (a) the presence of a light above the stable block and (b) that after the accident the O'Briens installed a floodlight in the middle of the track designed to illuminate the track. However, the state of the visibility at the time of the accident and whether there was any artificial lighting other than that of the stable light was contentious.

42 Photograph C below,[37] was taken recently from a point east of the stables and shows the floodlight with a view through the stables towards the track.

43 I now precis each of the witness accounts as to the degree of visibility at or around the time of the accident (regardless of the estimate of the time of the accident) and what, if any, artificial illumination of the track was present. I deal initially with those witnesses who were present at the time of the accident.

44 First Mr Robertson said that it was 'pretty dark' at the point where the accident occurred;[38] the sun was not up at that stage,[39] there was 'no light and no generator'[40] on the training track and that he could only see silhouettes from the stables.[41] He said that staff used torches when they went into the paddocks to collect the horses[42] and that:

it was only March and it was getting fairly dark then and you are going to go into June, July and it would be black as a dog's guts, so to speak, without lighting.[43]

45 When asked about how much of the track he could see, Mr Robertson replied:

I suppose you could see 150 metres, 200 metres clearly with the silhouette of the stable lights shining down behind you.[44]

46 Mr Robertson was recalled to give evidence as to the efficacy of the stable light in illuminating the track. He was categorical in rejecting the proposition that the stable light provided any illumination of the track. Rather, he said the effect of the light extended only to the edge of the hosing bay (i.e. between the stable block and the track).[45]

47 Second, Mr Ricketts said that he could see '300 metres or so in front of me'.[46] He also said that the running rail was visible.[47] As to the presence of artificial lighting, he was adamant that a light was in position at the barriers near the north-eastern corner which illuminated the northern side of the track.[48]

48 Third, Mr Eden said that at the time of Mr Robertson's accident there was one light on the stables (a big floodlight)[49] and that this light illuminated the wash bay, the horse walker, and some light extended out onto the track.[50] Mr Eden said that he was able to see the running rail when riding track work at 'first light'.[51] As mentioned, he was also able to discern the presence of the riders on the track after the accident.[52] He said that he rode regularly on the track and was satisfied with the lighting.[53]

49 Mr Eden recalled lights being installed in the centre of the track and at the barriers, but could not remember whether this was before or after the accident.[54]

50 Fourth, Mr Maund was present at the track on the day of the accident but only learnt of the accident after he first saw a loose horse. Mr Maund said that at that time, 'it was just breaking daylight and backed up with the light on the end of the stables.'[55]

51 As to the state of the official lighting, Mr Maund said that the only lighting present in June 2008 was that given off by the light above the stables,[56] and that other lights were installed in the centre of the track and near the barrier at a later time.[57] He said that the light on the stables was good enough for horses to be worked on the track.[58]

52 He went on to say in cross-examination that this light would have given 'every bit of 75 per cent of lighting'; that there was never a problem with the track being too dark and that he and numerous jockeys rode the track in those conditions.[59] He described the light above the stable as being 'a pretty big powerful light'. He remained adamant that the illumination from that light extended to most of the track.[60]

53 When asked about the degree of illumination on the western part of the track where the accident occurred, he described the light at the point around where the accident occurred as being adequate.[61] He said 'from the distance maybe looking from the stables I do agree that it didn't look the brightest down there, but when you're on a horse you could see and there was adequate light'.[62] Mr Maund said that he had no hesitation at all in sending out track riders when the stable light was operating.[63]

54 Three other witnesses gave relevant evidence on this issue.

There was only basic lighting around the house. The ones that were added spotlights or floodlights to give us better light because it was quite a large area in front of the house.[64]

Although he could not recall the date upon which the work was carried out he was aware of a number of sets of lights being erected - the primary one (with four lights on it) being in the middle of the track and the other at the stables near the walking machine.[65]

56 Mr Lockwood also confirmed the installation of a light in the area of the barriers in 2008 but did not know when it had been erected.[66]

57 Mr Lockwood was present on the farm when the accident occurred but had no idea about the circumstances nor the state of lighting at the time.[67]

58 Mr James O'Brien is the son of the O'Briens and was the operations manager of the Lauriston Farm. He was not at the farm on the day of the accident but oversaw its day-to-day management and was able to give, in my opinion, the most reliable evidence as to the state of the artificial lighting at the time of the accident. He clarified the evidence of Mr Lockwood and Mr Eden as to the timing of the installation of the lights. He said that there was no artificial lighting other than the stable light in June 2008. After the accident at least two (and possibly three) additional artificial lights were installed. The most significant was one in the centre of the track, which comprised four lights on a large pole.

59 In addition to accepting Mr O'Brien's evidence, I am satisfied that the light referred to by Mr Robertson and Mr Ricketts as being present at the barrier stalls, which illuminated the northern section of the track, was erected some time after the accident.

60 Mr O'Brien's account is supported by two invoices (from July and September 2008) provided by electrical contractors and relating to the erection of lighting at Lauriston Farm,[68] and is also corroborated by the evidence of Mr Maund.[69]

61 An expert engineer, Richard Lightfoot, was engaged by the VWA to investigate the circumstances of the accident. He carried out light readings at Lauriston Farm on 28 June 2016 at approximately 6.30am[70] and, using a light meter,[71] took readings at various parts of the training facility. In the stable area readings of 12 to 27 Lux were obtained.[72] In the area where the accident occurred (between the north-west and south-west corner) there was no Lux reading.[73]

62 Mr Lightfoot explained that Lux is a measurement of light intensity and he compared a reading of 27 Lux to that obtained in the Court (which is intensively artificially lit) of 163 Lux.[74] Mr Lightfoot agreed that notwithstanding the similarity and the time of the year which the light reading was taken, that it was possible that a comparison with the reading taken on 28 June 2016 was 'apples and pears' given that he had no information as to cloud cover on the day of the accident.[75]

63 I have reached the following conclusions as to the issues I identified in [39].

(a) That given the time the accident occurred was at least a quarter of an hour prior to first civil light, and at least 3/4 of an hour prior to sunrise, I think it inevitable (and consistent with Mr Lightfoot's readings), that it was relatively dark at this time and that the estimates of visibility as to making out silhouettes at distances of between 150 to 250 metres are correct. This also tallies with Mr Eden being able to see the figures on the track after the accident (he thought from 300m away) but not being able to identify who those figures were. Given the evidence of Mr Lightfoot as to the time of first civil light, I do not accept that there was any true natural light at the time and the natural lighting at the time of the accident and in the vicinity of where it occurred was poor. Mr Robertson's evidence should therefore be accepted as to the lighting conditions at the time of the accident.

(b) That there was no artificial lighting of the track other than the illumination from the light above the stable area. I accept the evidence of Mr O'Brien, which is consistent with that of Mr Maund, and the invoices as to the absence of other lighting. In my view, given that Mr O'Brien and Mr Maund were in charge of operations at the farm, their evidence should be preferred over that of the other witnesses as to the absence of artificial lighting, other than the stable light. In particular, I do not accept the evidence of Mr Robertson that there was a light present at the time of the accident in the area of the barrier stalls which was malfunctioning, nor that of Mr Ricketts that such a light was in operation at the time of the accident.

(c) That the light over the stables provided some additional lighting over the stable and wash area and some lighting over that area of the track closest to the stables. However I am not satisfied that it provided any illumination of the western part of the track and particularly at the point where the accident occurred. I do not accept Mr Ricketts' evidence (which, as will be explained later, was particularly vague) as it is premised on the assumption that there was a light at the barrier stalls. Nor do I accept Mr Maund's evidence, which, at least to some extent, was equivocal as to the degree of illumination provided by the light on the part of the track where the accident occurred. Indeed, it defies credulity given the location of the stables in relation to the western part of the track. I prefer the evidence of Mr Robertson and Mr Lockwood; that the stable light provided minimal lighting of the track and none on the western part of the track. Moreover, if the lighting was as adequate as Mr Maund suggested, one might well wonder why the O'Briens went to the expense of installing the centre and barrier lights after the accident.

64 It can be accepted that on 26 June 2008, at some time shortly after 6.00am, Super Sequalo was, in accordance with stable practice, placed in the walker for 10-15 minutes. Mr Robertson then took the horse from the walker intending to canter several laps in the company of the horse (name unknown) ridden by Mr Ricketts.[76] In order to do this, it was necessary to take the horses up a lane and to enter the track just west of the north-east star in Photograph A where the barrier stalls were located - that course is shown by the yellow line in Photograph A.

65 The horses then worked in an anti-clockwise direction (the Melbourne way) and, after trotting for about 100 metres, cantered towards the north-west corner and then worked towards the south-western corner of the track (near Guy Road). Mr Ricketts' horse was working on the outside of Super Sequalo.

66 The accident occurred about half-way along the western part of the track and its location was marked by Mr Robertson on Photograph A just above the star in the south-western corner.

67 Mr Robertson did not know what caused Super Sequalo to 'duck in'. He described the accident as follows:

[Mr Ricketts] was next to me until mine decided it's going to lie on the fence and I gave him a little bit of a dig, from memory and I don't know what he's seen, what he saw, whatever but he just dived into that run rail really hard and quick. Had he ever done that before...? No, never, and that's the part that got me because he was such a quiet old horse. You don't expect them to do things like that.[77]

The horse didn't try and jump the rail?...No, he just cantered into it. I know horses can see in the dark but he moved that quick it was like running into a brick wall. I thought what the hell are you doing.[78]

68 In evidence, Mr Robertson said he had no recollection of Mr Ricketts' horse making contact with Super Sequalo.[79] In cross-examination, he gave the following answers:

Nothing happened between your horse and the other horse as far as you are aware?---As far as I am aware, yes.

Was your horse that shied at something or did something that caused it to either jump or travel left into the running rail?---That's correct.

69 However, he agreed that in an affidavit sworn in August 2011 he said, '[a]nother horse on my outside brushed against my horse in the dark'.[80] In evidence, he qualified this by saying that the contact between two horses 'possibly could have happened' but he was not sure.[81]

70 Perhaps his position was best summarised by the following question and answer:

Whatever happened, you are not sure whether the other horse or your horse was spooked but your horse went sideways into the running rail?---That was the end result.[82]

71 Mr Ricketts' evidence as to the precise sequence of events was also confusing and confused. He initially said in evidence-in-chief that his horse shied and bumped into Super Sequalo causing it to hit the running rail.[83]

72 Immediately after he made this statement he said that Mr Robertson's horse shied and was then bumped by his horse and then hit the running rail.[84] When asked to describe the exact movements of each horse, at one stage he said he could not really remember, although the one constant with the answers he gave was that there was contact between the two horses.

73 But then he was taken to a statement he made in December 2011 in which he said that he could not recall if he was on the inside or outside of Super Sequelo whilst the horses were working, and that one of the horses shied at some sort of movement. [85] At the trial he agreed that he was unable to say which of the two horses shied.[86]

74 Apart from the possibility of Super Sequalo being bumped by Mr Ricketts' horse, neither jockey could offer any explanation for the cause of Super Sequalo's sudden movement.

75 The propensity of horses to react at times in an irrational manner was not in issue. For instance, Mr Robertson said:

You would agree that horses can do some silly things at times?---Oh yeah, don't worry about that.[87]

76 I have reached the following conclusions in relation to the happening of the accident:

(a) Super Sequalo, without warning, ducked in violently and struck the inside running rail with considerable force, causing Mr Robertson's left leg to be severely fractured;

(b) whilst it is possible that the two horses came into contact causing Super Sequalo to duck in, the evidence as to whether there was contact was unpersuasive - as was the evidence as to which horse reacted first; and

(c) I cannot be satisfied on the balance of probabilities as to any direct or immediate cause of Super Sequalo changing course. Nor can I be satisfied as to whether there was contact between the two horses.

77 Having made these findings, it is now necessary to determine whether there was any breach of duty on the part of the O'Briens.

Was there a breach of common law duty on the part of the O'Briens?

78 It was not in issue that the O'Briens, in a practical sense, owed a duty of care akin to that of employer and employee. This was described by the High Court in Czatyrko v Edith Cowan University as follows:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. [88]

An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.[89]

79 It is necessary, as the first step, to identify with reasonable precision the risk of injury, which it is alleged should have been foreseen by the O'Briens and guarded against. I think it is as follows: that working a horse in the dark or near dark means that the horse (and for that matter the rider) has a limited capacity to observe what is going on around it and therefore a risk of injury arises. I should observe here that, understandably, it was not part of VWA's case that Mr Robertson's diminished vision was related to the accident.

80 Mr Kevin Ring, an experienced former jockey, had worked in the racing industry for over 40 years and has since 2009, been employed by the Australian Jockeys Association as a work, health and safety officer, gave evidence as to the use of artificial lighting on training tracks.[90] He produced a publication of Worksafe Victoria titled 'Horse, stables and track riding safety',[91] published in June 2007. The relevant part reads as follows:

Track lighting - Track riding is performed in daylight hours only; where track riding is undertaken in pre-dawn hours, quality lighting available to ensure: illumination of the track proper, clear visibility to all positions along the track and shadows from lighting on track are minimised.[92]

81 That document also identifies the following as unacceptable work practice:

• In pre-dawn hours (night) without quality lighting which illuminates the entire track proper.
• With lighting only provided at the gap, and/or
• With significant shadows or blind sections on the track.

82 In cross-examination Mr Ring said that in his roughly 30 years of track work, including work on private tracks, he would not ride in the dark but rode in daylight.[93] He agreed that it was not uncommon to ride at first light but that track supervisors would not allow a horse to go onto the track unless you could "see horses and riders on the other side" (of the track).[94]

83 Once it is accepted that the two horses were working between 6.30am and 6.45am and that it was relatively dark, (although there was some dull visibility for around 150-250m) then I think it was unreasonable to require Mr Robertson to ride track work at this time. I have reached that conclusion for the following reasons.

84 First, the evidence of Mr Ring and the Worksafe documentation to which I have referred. I think it is clear that, absent artificial illumination, it is unsafe, in terms of visibility of both horse and rider, for horses to be worked until shortly prior to sunrise (or at sunrise). That is the tenor of the Worksafe document - the level of visibility for horse and rider must be significant.

85 Second, there is no reason to distinguish between a private and public training facility, as was suggested by several of the witnesses. The question here is the safety of horse and rider. In this case, Super Sequalo was being worked at least ¾ of an hour before sunrise. This of itself is enough to raise the spectre of insufficient visibility absent artificial illumination.

86 Third, it is no defence for the O'Briens to assert that working horses in the dark may in the past have been common industry practice. Certainly, it is part of racing folklore that horses be worked in the dark to avoid the uninvited attention of bookmakers, touts and other highly regarded individuals. But that is no answer to the health and safety obligation cast upon an employer, a racing authority, or persons in the position of the O'Briens.

87 Fourth, it is also no answer to assert that horses have excellent night vision as Dr Andrew McClean, the animal behaviour expert, explained.[95] Horses take time to adjust to the dark, as will be discussed in a moment.

88 Fifth, whilst I accept that Mr Maund and Mr Eden were content to ride on the track pre-daylight this begs the question - was it reasonable for the O'Briens to require Mr Robertson to ride in these conditions.

89 In my view, it has been established that working the horse at between 6.30am and 6.45am on the track at Lauriston Farm, created a foreseeable risk of injury in that the deficiency in lighting was sufficient to mean that Super Sequalo was restricted in its ability to observe what was happening on or around the track as it was worked by Mr Robertson.

90 The next step is to determine what, if any, steps should have been taken by the O'Briens to alleviate the potential risk of injury. The singularly obvious solution is that which was undertaken by the O'Briens after Mr Robertson's accident; according to Mr O'Brien, within months of the accident a large floodlight was erected in the centre of the track and another at the barrier stalls, illuminating that area and the northern part of the track. The alternative was to commence working the horses at a later point of time. Each of these steps could have been undertaken prior to June 2008.

Was any breach by the O'Briens a cause of Robertson's injury?

91 Once the breach is identified, in terms of the failure to work the horse in reasonable light then the remaining (and far more challenging) question is whether that breach is legally causative of any loss or damage to Mr Robertson. In essence, the 'but for' question is whether the accident would not have happened if the horse had been worked either in daylight or on a properly lit track. Or, to put it in racing vernacular, would better lighting have meant that Super Sequalo would not have been 'spooked'.

92 In final submissions, counsel for VWA put its case on the basis that working a horse in the dark increased the risk of injury to Mr Robertson, and therefore, given that Mr Robertson suffered injury whilst riding a horse in the dark, causation was made out. It was put this way:

The reality is one can't say with any certainty what may have caused the adverse reaction but we say that doesn't in this circumstance matter. It's the circumstances or the positions that the O'Briens had placed Mr Robertson in where it was much more likely that he would have got injured.[96]

93 But that proposition alone, as the authorities demonstrate, is not enough to make out the necessary causal link. In Amaca Pty Ltd v Booth, French CJ said:

Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and the cause of the occurrence are quite different things. That proposition is obvious enough and not determinative of these appeals.[97]

94 The position, at common law, was succinctly stated by the Full Court of the Supreme Court of South Australia in BHP Billiton Ltd v Hamilton:

At common law, establishing merely that it is possible that the defendant's conduct was a cause of (or materially contributed to) the disease or injury is insufficient: it must be proved in accordance with the civil onus that it is probable that the defendant's conduct was a cause of (or materially contributed to) the plaintiff's disease or illness. There is also a distinction between a mere prospective risk that the defendant's conduct might cause injury to the plaintiff and the possibility or probability that the defendant's conduct assessed in retrospect did in fact cause the injury suffered by the plaintiff. This is not to say that, as an evidentiary matter, proof of risk of injury coupled with other circumstances may not be sufficient to prove causation on the balance of probabilities.[98]

95 Returning now to the evidence in the case: I have set out my conclusion as to the happening of the accident at [76]. It is necessary now to return to the evidence of Dr McLean in more detail.

96 As I mentioned earlier, Dr McLean said that horses have 'excellent night time vision'; however this is qualified by the need for a period of adjustment to the dark before that type of vision is achieved. In his report the doctor said that horses 'will be blind for a few minutes until they have visually adapted'.[99] In evidence in court, he elaborated on this and said

'[t]he literature says that when you do studies of horses that have moved into low light conditions the baseline is 20 minutes after the light conditions change' and that at 30 minutes vision is 'perfect'.[100]

97 Mr Robertson said he took the horse from the walker.[101] It was accepted by all witnesses, that prior to a stabled horse being taken on to the track the horse would 'loosen up' on a walker for a period of 10 to 15 minutes. The area where the walker was situated was between the track and the stables and received a reasonable degree of illumination from the stable light. Whether that time on the walker allowed for an adjustment or not, it seems clear that Super Sequalo's vision must have been diminished when it moved to the darker conditions on the track, given that a period of no more than five minutes elapsed between the horse leaving the walker and the accident. On this point I am prepared to accept (notwithstanding some internal variations) that whilst there may have been some adjustment by Super Sequalo to the dark by the time of the accident, Super Sequalo's vision was still affected, and limited, by the dark environment.

98 Dr McLean went on to explain that horses have 'sudden accelerations either sideways or forwards form part of a suite of evolved instinct anti-predator responses', commonly known as flight responses. In his report, he also noted that a flight response can be triggered by a variety of stimuli, including 'novel stimuli' as well as approaching erratic stimuli or stimuli of sudden auditory or visual magnitude.[102]

99 In his report of 1 February 2016, Dr McLean then expressed an opinion as to the cause of the sudden shift by Super Sequalo. In answer to the question '[w]ould the sudden move in of the other horse be consistent with the reaction to visual stimulation?', he answered:

On the balance of probabilities, it is likely that the horse that was working in tandem with the horse that Arthur Robinson was riding swerved sideways towards Mr Robertson's horse as a result of an auditory stimulus that the horse could not see or as a result of visual stimulus only part seen, or both. There is a water trough on a neighbouring property some five metres away from the track and adjacent to the area where the horse swerved precipitating the incident.

It is probable there was some animal or wind movement around the trough or in the dense trees that line the outside perimeter of the racetrack at Lauriston Park that caused the horse to swerve[103]

100 At the trial he also gave the following evidence:

Without knowing the stimuli in this situation you are unable to say, I suggest, whether or not the same result would have happened?...I am unable to say what caused it but the fact that it did happen, in my opinion scientifically it's more likely to happen in the situation where the horse hasn't had a chance to adapt.

That's a possibility rather than something that you can say is a cause of the accident?---Yes, it's a probability.[104]

If I have followed your evidence, the flight response can be virtually to any form of external stimuli and can happen in daytime or night time?---Yes and horses have much higher levels of hearing than we do. Not good lower levels at lower hertz, but excellent hearing at well above ours so we don't even know what they perceive as a stimulus to shy sometimes.[105]

102 With respect to Dr McLean, his opinion as to the cause expressed in his report and in some of his answers at the trial do not stand up to close scrutiny, at least in a legal causation setting.

103 First, the opinion in his report is based on an assumption that it was Mr Ricketts' horse that shied and then collided with Super Sequalo. [106] As I said earlier, I am not satisfied that this sequence of events is made out.

104 Second, even if it was assumed that the doctor's opinion applied equally to Super Sequalo being affected by visual or auditory stimuli, endeavouring to identify such an event is mere speculation. This is demonstrated by one of the answers given by Dr McLean in his report of 1 February 2016. The following question was posed:

Can movement in adjacent areas disturb a horse even though it is relatively dark?---During darkness, particularly before visual adaptation horses are more prone to react suddenly to external stimuli, particularly of these stimuli are virtually unrecognisable. For example a bird fluttering in nearby trees may be innocuous under normal circumstances however in darkness and before visual adaption, this movement may elicit the flight response.[107]

105 Indeed, the following question and answer within that report indicates the lack of factual basis for Dr McLean's opinion:

How would adequate lighting minimise or eradicate such behaviour (i.e. the sudden move in of the horse that allegedly made contact with Super Sequalo)?---If the track at Lauriston Park were evenly illuminated throughout its length and breadth such an event would have been less likely to have occurred. In my opinion it is beyond mere coincidence that the morning that the temporary light was broken was the very same morning that the incident occurred. Thus even a change in this sub-optimal situation where already inadequate lighting has diminished further has precipitated a dangerous situation in which Arthur Robertson was injured.

106 In answer to a question at trial, he said as follows:

You are asked to assume a lot of things. There is nothing definitive there that allows you to make a concrete conclusion about whether it would have occurred in daylight or low light...--- I agree. We are talking about probabilities here. I am simply saying - (Interruption ignored)--My belief is it's about probabilities. That it's more likely to have occurred in such low light situations or variable light situations from which the horse first emerged. For me, even it had been true that one could see the horse or rider 200 metres away, we're still talking about a degree of light, we are not talking about full light situations and that's still a problem. It's still some risk envisaged for the horse, moving from a situation of full light into a situation of any degree of low light.[108]

107 Dr McLean was also asked about the question of contact between the horses being a cause of Super Sequalo's sudden movement:

I will give you this as a possibility. Assuming there was contact between the horses that caused a horse to shy to the left, then Mr Robertson's horse, are you able to say other than it is less likely to occur in daylight than in low light?---Yes. It's less likely to occur, I can say that.

I take you to the next possibility. What happens in a situation if there was a contact between horses and the horse was on the wrong leg and had nowhere to go and had to go sideways when it got bumped?---That could be a cause.

Light would make no difference would it?---In that situation, no.

So without knowing what the cause of the stimuli or the movement or the reason why Mr Robertson's horse moved left into the fence, you are unable to say what might have happened?---Yes I am certainly unable to confirm that.[109]

108 When viewed in totality, the propositions contained in this body of evidence do not establish causation in a tort claim.[110] I put to one side that the substratum of fact assumed in the report, (i.e. as to the presence of a temporary light and contact between the two horses) was not established. Dr McLean appears to have been driven to opine that there must be a correlation between working a horse in the dark and Mr Robertson's injury simply because the accident happened in the dark and this, in turn, increased the chance of an accident being related to the lack of visibility.

109 Third, as I mentioned earlier,[111] there is no evidence from either of the riders as to anything that occurred around them (in either terms of a visual or auditory event) which might have produced the reaction of Super Sequalo. Nor is there evidence from anyone else (i.e. other than the riders) as to any event that might have precipitated this action.[112]

110 There are, as is now apparent, a number of potential causes of the horse's shift towards the inside rail:

(a) a response to an auditory stimuli alone - in which case it would be immaterial whether it happened at night or in the day;

(b) a reaction to visual (accompanied perhaps by an auditory effect) stimuli - such as an animal, bird, snake etc;

(c) a reaction to being struck by Mr Ricketts' horse and, naturally, shying away -which is a possibility;[113] or

(d) the horse reacted for an unknown reason - another possibility.

111 As to (b), which appeared to be the central thesis of the VWA case (based on Dr McLean's evidence), namely that the horse's sudden movement was a result of the occurrence of something either visual, or auditory and visual, there is no evidence to suggest that this is what happened. I reject VWA's submission that establishing this fact is unnecessary.[114] However, even if this proposition be correct, then there is no persuasive evidence (indeed any evidence) that an accident in those circumstances would not have occurred if the track were properly lit. What is needed is more than coincidence or association; there must be a causal explanation to link the two events, as was explained by French CJ in Booth:

The mere existence of such an association or correlation does not justify a statement, relevant to factual causation in law, that the first event "creates" or "gives rise" to or "increases" the probability that a second event will occur. Such a statement contains an assumption that if the second event occurs it will have some causal connection to the first. However, if the association between two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause of that occurrence. An after-the-event inference of causal connection may be reached on the civil standard of proof, namely, balance of probabilities, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a "mere possibility" or "real chance" that the second event would occur given the first event. There may of course be cases in which the strength of the association, as measured by relative risk ratios, itself supports an inference of causal connection.[115]

112 As I have stated, VWA's case, in effect, came down to a submission based on Dr McLean's evidence: that there was an increased risk of injury because the horse was worked in the dark rather than on an adequately lit track and, thus, it can be inferred that this was a cause of the accident.[116] That alone does not establish the necessary causal link - "the causal explanation" referred to by French CJ in Booth is missing. In the circumstances of this case the alleged link between the two events is not made out as it must be, on the balance of probabilities.

113 I am not satisfied that VWA has established that the breach by the O'Briens of their duty of care was a cause of Mr Robertson's injury.

114 For the purposes of s 138 of the Act, VWA has not established that there was a legal liability on the part of the O'Briens for the injuries sustained by Mr Robertson. It follows that the claim of VWA must be dismissed.

[2] Transcript of hearing, VWA v O'Brien & Ors (November 2016) T176.

[70] Exhibit VWA5, report of KAS Consulting Pty Ltd.

[71] A top con IM-2D calibrated in May 2016.

[88] [2005] HCA 14; (2005) 214 ALR 349, 353.

[89] [2009] HCA 35; (2009) 240 CLR 1, 12 [21].

[90] Report, 6 October 2016, Exhibit VWA3.

[97] [2011] HCA 53; (2011) 246 CLR 36, 53 [41] ('Booth').

[98] (2012) 117 SASR 329, 343 [61] (Blue J); see also Powney v Kerang and District Health [2014] VSCA 221; (2014) 43 VR 506, 527 [104].

[99] Exhibit VWA2A. Report of 1 February 2016. Exhibit VWA2B is Dr McLean's addendum of 16 October.

[103] Report of Dr McCleen of 1 February 2016, Exhibit VWA2A

[106] Dr McLean was asked to make this assumption by the lawyers for VWA: exhibit VWA 2A, letter of 14 January 2016.

[111] See [16] and [67] - [76] above.

[112] The O'Briens' next door neighbour, Mr Joseph (T 78-81) was called by VWA - he said that there were cattle in the paddock beside the western part of the track where the accident occurred but could not give any specific evidence about the events surrounding the accident.

[115] [2011] HCA 53; (2011) 246 CLR 36, 53-54 [43] (Emphasis added).