“Winning isn’t everything, it’s the only thing”, but it’s not the law

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Less than a week before one of National Hunt’s biggest races – the 2021 Boxing Day King George VI Chase at Kempton Park – the judgment in the case of Tylicki v Gibbon [2021] EWHC 3470 (QB) was delivered.

The case concerned a flat race held on the all-weather track at Kempton Park on 31^st October 2016, some five years earlier, when the mounts of the Claimant and Defendant collided mid-race, causing the Claimant, Freddy Tylicki and his mount, Nellie Deen, to come crashing to the ground. The Claimant sustained life changing injuries (T4 AIS complete paraplegia) in the fall and is wheelchair-bound for the rest of his life.

Since the claim was first issued and up to the conclusion of the trial, there had been much press speculation about the ramifications that a decision in favour of the Claimant might mean for the sport of horse racing. For some commentators, success for Tylicki would represent the ‘thin end of the wedge’, a concern that it could amount to an opening up of the floodgates and ultimately the demise of the sport of horse racing itself.

This article seeks to answer the pre-trial concerns of the press by arguing that the kernel of the decision in favour of Tylicki does nothing more than maintain the legal status quo, whilst highlighting where the law draws the line between a win at all costs playing culture and legitimate action on the field of play.

The trial at the High Court in London took place over 5 days between 29^th November and 3^rd December 2021 before HHJ Walden-Smith. As part of his Defence, Gibbons relied on the on-course Stewards Enquiry, held immediately after the conclusion of the race, which concluded that this was a horse racing incident, with no sanction required.

In giving judgment in favour of the Claimant, Walden-Smith does not appear to set any new legal principles, rather her decision was a determination which turned on whether the Defendant, Graham Gibbons:

1. knew or ought to have known that Nellie Deen was present on his inside between his mount and the inside rail part way round a right hand bend; and
2. thereafter, chose to close the gap between his horse, Madame Butterfly, and the inside rail of the track, thereby seeking to ‘shut the door’ on Freddy Tylicki and his mount, Nellie Deen.

Walden-Smith answered both issues in the affirmative and thereafter, applied the agreed principles, established in the Court of Appeal decision in the case of Caldwell v Maguire & Fitzgerald [2001] EWCA Civ 1054, to conclude that with Gibbons’ knowledge his actions thereafter were, “undertaken in reckless disregard for the safety of Mr Tylicki”, rather than mere lapses of concentration or inattentiveness in the context of a fast-moving, hard fought racing contest.

Consideration of the facts in Caldwell when compared with the precise findings of fact in the case, as well as Gibbons credibility and the tactics adopted by each party (Tylicki/Gibbons) are all important in understanding Walden-Smith’s decision:

1. In Caldwell:
   1. 1. The racing incident also involved a similar manoeuvre in a National Hunt race. On this occasion, both Defendants moved their horses towards the inside rail on the final bend, causing another horse, which was slightly behind theirs, to fall. This horse then brought down the Claimant’s horse, causing his career-ending injuries;
      2. Interestingly, both Defendant jockeys were sanctioned, albeit modestly, for their race riding by the Stewards for careless riding with 3 day suspensions;
      3. The decisions made in the race by both Defendants were categorised as errors or lapses of judgment, as Judge LJ put it, “In exclusively racing terms they were right to go for the inside lane. Their error in the heat and commitment of the race was to misjudge the exact opportunity that was available to them to take. They did not appreciate that Mr Byrne’s horse had not gone backwards as far as they thought it had. As they assumed he was no longer in contention for the inside line, they did not physically look out for him. Their assumption was wrong, in real terms by no more than a few yards…” (paragraphs 33 and 34);
      4. It is clear that whilst the Defendant jockeys did deliberately move to their inside and in doing so, close the gap, their decisions were made without the knowledge that the Claimant and his mount were already there.
2. In Tylicki v Gibbons, a number of findings of fact were made, based on a careful and detailed review of the various angles of video footage:
   1. 1. After taking the lead, Madame Butterfly had raced down the straight and over half of the following bend between one and a half and 2 widths away from the inside rail;
      2. Prior to the precise action of each horse and jockey relevant to the index incident, this gap to the inside rail remained;
      3. As a result of there being this gap, Nellie Deen ran, unimpeded into it and was gaining ground on the inside;
      4. Nellie Deen moved from a position of one and a half lengths back from Madame Butterfly;
      5. The position of Nellie Deen at the last point, prior to any action to move Madame Butterfly to the right, thereby ‘closing the door’, was described as follows, “she is a half-length back from Madame Butterfly with her head at the stirrups of Madame Butterfly…her head is by Mr Gibbons’ boot…”;
      6. Following on from (v), up until this point, Nellie Deen’s progress had remained unimpeded;
      7. The action described in (iii) to (v) occurred over approximately 3-4 seconds of racing;
      8. Thereafter, Gibbons applied pressure on the right-hand rein of Madame Butterfly;
      9. In the following 2 seconds, both horses are seen to be urged on and Madame Butterfly moved to the inside, closing the door and there then followed two collisions/contacts between Madame Butterfly and Nellie Deen, before Nellie Deen fell;
      10. The first collision/contact was between the flank of Madame Butterfly and the shoulder of Nellie Deen. The second occurred, when in the process of being slowed by her jockey, Nellie Deen’s forelegs clipped the back heels of Madame Butterfly;
3. A number of further findings were made, in light of the evidence provided by Tylicki, Gibbons and their respective experts. That evidence included:
   1. 1. A claim by Tylicki that he shouted “Gibbo” after the first collision;
      2. A claim by Gibbons’ that he first knew of Tylicki’s presence when he heard him shout “Gibbo” and that prior to this point he had no knowledge of Nellie Deen being in the gap between his horse and the rail;
      3. A claim by Gibbons that his horse had been ‘running green’ during the race and did not maintain a consistent racing line;
      4. A claim by Gibbons that there was insufficient room for Nellie Deen to move into;
      5. A claim by Gibbons that he was merely attempting to ride/steer to ride his mount around the bend and in doing so was not intending to ride over to the rail but to simply hold his line round the bend (all supported by his expert’s review of the footage – who explained that all jockeys would need to take some sort of pull on the right rein to go round a right bend, otherwise this would increase the risk that their horse would move out/to the left on the bend);
      6. A claim by one of Tylicki’s experts – the champion jockey, Ryan Moore – that Gibbons did more than simply fail to take control of Madame Butterfly so that she could make way for Nellie Deen coming up her inside;
      7. Following on from (vi), that Gibbons acted to encourage Madame Butterfly to cross Nellie Deen’s racing line by exerting tension on the right rein, beyond that which was necessary to bring Madame Butterfly around the bend, and in order to close the gap;
      8. Following on from (vii), that the active encouragement also involved Gibbons actively seeking to ask his horse to accelerate to facilitate Madame Butterfly’s ability to take Nellie Deen’s racing ground;
      9. An acknowledgment by Gibbons’ own expert (in the joint report and elsewhere) that the actions described in (vii) and (viii) might fall within a range of careless to dangerous riding (paragraphs 54 and 80);
      10. A claim by Tylicki’s expert, Ryan Moore, summarised by Walden-Smith as follows: “jockeys are aware of what is going on around them, and that is to be expected… a jockey will be looking forward but will be aware of the breathing of the horses and the sound of the horses making contact with the ground, the sound of them galloping…there are lots of little things, little factors at play which get a whole understanding…Mr Gibson would have been aware of Nellie Deen’s presence to his inside from the time Nellie Deen occupied the space between Madame Butterfly and the rail.” (paragraph 73).
      11. The opinion of Ryan Moore that, “…a jockey who is taken by surprise by the presence of another horse, legitimately positioned to his inside, should immediately appreciate that the responsibility for avoiding a collision lies with him. Not only ought such a jockey redirect his mount away from the horse to his inside, but he would also take steps to slow his horse down so as to allow the horse to his inside to get through.” (paragraph 85).
4. In evaluating the evidence set out above, additional information was placed before the Court which addressed Gibbons’ credibility. Significantly, at the start of her judgment, Walden-Smith set out those matters, before commenting on Gibbons’ failure to divulge/address any of this himself and concluding that the evidence did impact on his credibility and character. Furthermore, it is also clear that the Judge formed a favourable opinion of the Claimant’s expert, Ryan Moore, whose evidence was attacked as being not his own.
5. Tactically, whilst the Defendant sought to place significant reliance on the decision of the Stewards Enquiry that followed immediately after the incident, the following evidence was brought to bear on the reliability of their decision:
   1. 1. The Stewards enquiry took place within a matter of minutes of the riders and horses coming in and, according to Gibbons, lasted a total of about 5 minutes;
      2. As a fact, the Stewards only heard evidence from Gibbons and one other jockey – Pat Cosgrove – two broadly similar accounts of the incident: that Tylicki had moved up the inside when, given it was a right hand bend, the horse in front was likely to start to move back towards the inside, and so it was an ambitious decision to choose to move up the inside;
      3. There was no evidence from Tylicki (obviously as he was seriously injured), nor any other rider brought down in the incident, however, the Stewards retained the right to adjourn their enquiry to a later date;
      4. The Stewards and two jockeys briefly watched video footage of the incident;
      5. A decision was given by the Stewards 3 to 4 minutes after dismissing the jockeys;
      6. In his evidence before the Court, in contrast to what he said to the Stewards, Pat Cosgrove gave supportive evidence for Tylicki;
      7. Tylicki’s legal team employed a second expert, Jim McGrath, who criticised the decision of the Stewards not to adjourn the hearing and the view they took of the video footage.
6. Faced with each party’s claims and counter claims, it would appear that Walden-Smith chose to dismiss Gibbons’ claims because of the combined impact of the findings of fact based on the video footage, the view she formed of his credibility and character and the favourable impression she formed of Tylicki’s expert, Ryan Moore and his other lay witnesses;
7. Furthermore, in light of the evidence put before her at Trial, Walden-Smith concluded that the decision of the Stewards did not assist her in her deliberations as many of the criticisms levelled at it were valid, in particular there were significant limitations with respect to the evidence they received in circumstances where they were entitled to adjourn their deliberations to a later date.

It is when seen in this light that one can appreciate why Walden-Smith adjudged Gibbons’ actions were, “undertaken in reckless disregard for the safety of Mr Tylicki”. She determined that he made a deliberate decision to direct his mount back to the inside rail when he knew or ought to have known that Tylicki and his mount were already there. In doing so, her decision can be seen as being a faithful application of the principles set out in Caldwell, in particular that the threshold for liability is in practice inevitably high and why the same ‘closing of the door’ in Caldwell met with a different outcome.

What of Ryan Moore’s further opinion that a jockey taken by surprise by the presence of another horse to his inside, ought to take steps to slow down and re-direct his horse away? Here the Judge did also pass comment: if Gibbons’ first knowledge of the presence of Nellie Deen was the shout of “Gibbo” – which would have been after the first collision/contact between the two horses – she said, “he certainly knew of the presence of Mr Tylicki and Nellie Deen at that time and he does nothing to pull Madame Butterfly off the rail in order to give Mr Tylicki a chance” (paragraph 89). If this is simply additional evidence to support the conclusion that Gibbons was intent on deliberately directing his mount across the path of Nellie Deen, then that would remain a reasonable statement. However, if it was meant as tacit support for an alternative, stand-alone, argument for breach of duty then that would potentially conflict with the outcome in Caldwell because it would more likely fall into the ‘lapse of concentration/inadvertence’ category.

One of the most revered coaches in the history of American Football, Vince Lombardi, once said, “winning isn’t everything, it’s the only thing”. Whilst, in some quarters, such a ruthless approach to playing to win is seen as the very apogee of professional sport, where that leads to injury the law of negligence provides for a very different viewpoint. As long as the decision in Tylicki v Gibbons is limited to a determination that Gibbons’, in the knowledge that another horse was already present, deliberately decided to direct his mount to the inside, then it does not sound the death knell for horse racing, rather it reinforces the point that the law of negligence does not permit a win at all costs playing culture, a point which, in another context, many fans of Lewis Hamilton and Formula 1 might also choose to reflect on…

Written by Edward Broome.

01/02/2022