Non Raceday Inquiry – Written Reserved Decision dated 14 June 2023 – Wilson House

BACKGROUND:

Information No. A21348 has been filed by Stipendiary Steward, Shane Renault, against Licensed Junior Driver, Wilson House, alleging that Mr House, as the Driver of MOGUL in Race 11, First Direct Taxis Mobile Pace, at the meeting of New Zealand Metropolitan TC held at Addington Raceway on 8 April 2023, “drove incompetently when failing to retire MOGUL from the race after becoming so obviously uncomfortable in its action from the 1500 metres”.

Mr Renault produced an Authority to Charge dated 19 April 2023 pursuant to Rule 1108(2) signed by Mike Clement, Chief Executive of the Racing Integrity Board, authorising the bringing of the charge.

The Respondent was served with the Information at the meeting of Geraldine TC at Orari on 21 April 2023. He subsequently endorsed the Information “I do not admit the charge” and he confirmed this at the hearing. He also confirmed that he understood the Rule and the charge.

The Respondent was assisted at the hearing by Licensed Public Trainer, Michael House (hereinafter called “Mr House”).

EVIDENCE OF STEWARDS:

Stipendiary Steward, Shane Renault, began by showing a video replay of the entire race in question. He pointed out MOGUL, driven by the Respondent, drawn barrier position 2 on the second row at the 1980 metres mobile start race. He made no comment until the horse had crossed the finishing line and was pulled up by the Respondent just past the finishing line, on the outside of the track. He pointed out the horse being turned around and the sulky being removed.

Mr Renault then referred to the details of the charge. He said that Stewards would show that the horse had broken down in its right front leg during the running of the race and alleged that the Respondent had driven incompetently by allowing it to maintain its position in the field, before weakening on the final bend and eventually being pulled up after the finish when a clear margin behind the rest of the field.

In a Harness Racing context, Mr Renault submitted that “incompetent” means “not having the skills to do something successfully, lacking the qualities needed for effective action or not having the ability to do something as it should be done. Incompetent driving occurs when the Driver fails to exercise appropriate judgement and the standard falls below that expected of a competent Driver. The more experienced the Driver, the greater the culpability. It is unintentional as the Driver lacks the skills, and maybe the knowledge, to drive in a way that is expected of him in any given situation. Incompetent driving need not be just momentary, but can occur over any length of time in a race and involve a number of misjudgements”.

MOGUL has raced 135 times, 89 of which have been for its current Trainer, Michael House. The Respondent has driven the horse on ten occasions. He is an experienced Junior Driver, having driven in 446 races over three seasons. He had driven in 395 races at the time of the race in question. MOGUL had raced on both days of the Manawatu HRC meeting prior to this race and arrived back in Christchurch on 3 April 2023.

Mr Renault then took the hearing through the race in question. MOGUL began from its second row draw and became positioned four places back on the outside. It was hampered early, and the Respondent had to take a hold. Passing the 1500 metres, a distinct change in the horse’s gait was noticeable, he submitted. Its gait was not out of the ordinary prior to that but, from the 1500 metres, the horse had started to pace roughly and be “very uneven”, Mr Renault said. Prior to the 150 metres, when the horse was eased out of the race, the Respondent had activated gear at the 500 metres, encouraged the horse with the whip and the horse continued in the race.

Mr Renault said that Stewards considered that, after the first 500 metres of the race, MOGUL had become noticeably uncomfortable in its gait and that the Respondent should have considered retiring the horse from the race as it continued to “get rougher”.

Immediately after the race, the horse underwent an examination by the On-course Veterinarian, Dr Alisa Corser, while still on the track, before being transported in the horse ambulance to the stabling area where it underwent another examination. The horse was found to have a fracture to its right-front sesamoid bone. He produced the Veterinarian’s Report (Exhibit “A”).

The Respondent was interviewed by Stewards at the next race meeting on 13 April. The Respondent said that the horse had been striking a knee, causing it to pace roughly and that the horse still felt strong. He added that, rounding the final bend, he felt that there was something not quite right and he began to ease the horse. It was of concern to Stewards that the Respondent had admitted that he felt that there was something amiss, but he continued to drive the horse, Mr Renault said. In electing not to retire MOGUL from the race, when there was obviously something amiss, was not showing the necessary skill.

The horse had only been mentioned once in Stewards’ Reports, Mr Renault said, as having paced roughly in its entire career – at Auckland on 4 June 2020. Having driven MOGUL on ten previous occasions, the Respondent ought to have been alerted to the fact that it was out of character and that something was not right, he submitted.

EVIDENCE OF DR ALISA CORSER:

Dr Corser has been a practising Equine Veterinarian for 12 years. She began working for the Racing Integrity Unit in 2013, alongside Dr Corin Murfitt. She outlined her duties on Raceday.

She had observed MOGUL in its preliminary and prior to the start, and did not notice any irregularity. She noticed, during the race, that the horse was almost on the verge of galloping and “not in a good way”. After the race, the horse had been pulled up just past the entrance into the stabling block. It was noticeable that the right-front fetlock had sunk lower to the ground, indicating a problem with the weight-bearing structure.

She then called the horse ambulance on her radio. She went to get her vehicle while the horse was being loaded on the ambulance. A horse is not normally loaded until she has given the OK. However, the usual Driver was not there. She followed the ambulance into the stabling block in her vehicle. She could hear a “commotion” in the ambulance. On arriving at the ambulance, it was apparent that the horse had kicked out in the float and got its back leg over the back of the crush, and was suspended on its right-hind leg, still weight-bearing on the near-hind leg.

She immediately sedated the horse, but was having difficulty taking control of the process as a lot of heated discussion was going on. It would have been impossible to lift the horse, she said. She then waited 5-6 minutes before the Starter, Ricky Donnelly, arrived. It was agreed that the back gate should be opened and this was eventually done by Michael House, she said. The horse lifted its leg and was then able to be moved to the tie-up area and she was able to give it a closer examination. It was immediately apparent that there was fragmentation of the bone. She then went to her truck and, on her return, the horse was being led away by Michael House. This upset her at the time because she had not finished treating the horse with the dose of anti-inflammatory. The condition of the horse would have been painful. It was desirable that the horse be transported home in the horse ambulance, but MOGUL required a travelling companion. She suggested that the horse be heavily sedated for the journey, which would have helped. She was concerned that the horse would have to walk up and down the ramp on the float without having received any anti-inflammatory.

She had then telephoned Stipendiary Steward, Shane Renault, to express her concerns about events – how the ambulance had been used and how her expertise had been used. She had not been given the opportunity to direct the treatment of the horse.

The fetlock still had the dropped appearance when she examined it in the stable block.

CROSS-EXAMINATION OF DR CORSER

Dr Corser confirmed that she was familiar with the protocol concerning the horse ambulance. She was present when the Respondent pulled the horse up and when Michael House arrived on the scene.

Mr House referred to the protocol which stated that the horse should be sedated and stabilised prior to being put on the float. He submitted that this had not been followed, as a result of which any injury that MOGUL had, while still on the track, had worsened. Walking onto the ambulance, the injury was 1 (only slightly lame) on a scale of 1 to 5, 5 being the most extreme. Dr Corser had told him that the horse was “all good”. Mr House suggested that the horse had walked happily onto the ambulance.

Dr Corser said that she had not sedated the horse before walking on the ambulance because the injury was not life-threatening and it was only a short journey to the wash bay.

Mr House said that the horse has a habit of pawing when it is time to get off the float. On this occasion, it was able to paw with both legs. Prior to that, he said, it had caused $6,500 worth of damage to the ambulance, indicative of the extent to which it had played up on the ambulance.

Dr Corser did not agree with Mr House that the injury to the horse had been aggravated by the events just prior to its being loaded onto the ambulance and after its being unloaded in the stabling area.

EVIDENCE OF THE RESPONDENT:

Mr House began his defence to the charge against the Respondent by showing to the hearing two of MOGUL’s races at Manawatu HRC on 29 and 31 March. In the race on the first night, the horse’s gait became “asymmetric” at times which, he said, is normal for MOGUL. He believed that the horse was unlucky. Following a gear adjustment, the horse raced better on the second night and led, but disappointed finishing 6th.

MOGUL has not had problems with a suspensory ligament previously but, because of the gear issues, with spreaders that it did not normally wear, it may have knocked a knee causing the injury during the running of the race. Mr House said that, as the Trainer of the horse, he had the horse’s gear “spot on”, but the gear issues had changed the dynamics so much, causing the suspensory to get hypertensive. The horse did get better and gave the Respondent the hope that it was going to come right. He was expecting the horse to “come right” during that part of the race between the 1500 metres and the 400 metres. The Respondent had taken hold of the horse when he has pulled the plugs and that gait has not improved. He had not pulled it to a standstill, because there was no catastrophic breakdown.

The Respondent said that he had made the call after the final turn, when he stopped driving the horse out and took a hold of it. The horse would not come to a standstill. He physically could not stop the horse. It stumbled after the post and quickly turned to go back to the barn. He then managed to pull the horse up and get out of the sulky. He had watched the horse hit its knee throughout the race. The horse had done this for its entire career, Mr House Snr said.

Mr House conceded that the horse’s gait during the race was “not 100 per cent”. The spreaders were annoying him. Its suspensory had become loose. It had suffered an injury during the race, he submitted. It was not a fracture. The horse was weight-bearing. It had walked onto the float.

Mr House demonstrated that, in the final 500 metres of the race, the horse was “pacing good” in places and, therefore, had not “catastrophically broken”.

Mr House then showed videos of a number of other races, including a race at Timaru on 28 May 2023. He pointed out the runner, MUCHO MACHO MAN, formerly trained by him. He submitted that the horse was obviously uncomfortable in its action. The horse has a lameness issue that is exacerbated by its gait. He retired the horse 4 years ago, because he felt it was cruel to continue to race it, he said. The Stewards Report stated that the Driver reported that the horse had been knocking its knees and a post-race veterinary check revealed no abnormalities. The Driver’s explanation had been accepted.

Mr House proceeded to show two other races in which a horse had suffered, what he described as, “catastrophic” injuries, and the Driver in each case failed to get out of the sulky but, rather, drove the horse back to the stables. Those Drivers were incompetent, he submitted.

MOGUL had been pawing in the horse ambulance with both front legs, which would have been exacerbating any injury that he might have had.

Mr House submitted that there was a “grey zone” that horse Trainers and Drivers live in, between lameness, unsoundness and the viability of horses and what happens. Again, he showed race videos to illustrate the point.

In conclusion, Mr House said that the process needed to be “fixed”. The actual difference between the race in question and the race from Timaru involving MUCHO MACHO MAN is a suspected broken sesamoid, diagnosed after MOGUL came off the horse ambulance, after welfare and ambulance protocols had not been followed, without sedation or support bandages. Mr House submitted that MOGUL had ripped the suspensory off the bone in the ambulance because it was “sheer getting into it”. MOGUL had been pawing in the horse ambulance with both front legs for 1½ to 2 minutes, which would have been exacerbating any injury that he might have had. It then became “violently eruptive” with its whole hind end kicking the float. While this was happening, Mr House said, the starting crew had left and, he claimed Dr Corser was absent. He was devastated when he learned that the horse would not be going home in the horse ambulance, as the Driver was not present, and was generally critical of the events and the way the horse was treated following the race in question.

Mr House referred to previous charges of incompetent driving. None were similar to this charge against the Respondent. This charge involved a reliance on “looks” and what the drive of the Respondent looked like. The Respondent knows the horse. It was conceded that MOGUL was asymmetrical in its gait. The Information alleges that the Respondent drove incompetently in failing to retire MOGUL from the race but the horse felt fine to him at the point at which it allegedly became uncomfortable in its gait. It was up to the Driver to determine the right time to pull a horse up. The horse had paced good at stages of the race. After watching the race, he had not been happy with the horse from the time it went up to the gate. He blamed it on the spreaders. It had not paced well, even terribly, in its two previous starts at Manawatu and the horse performed badly as a result.

DECISION:

The charge is not proved.

REASONS FOR DECISION:

Mr House made the observation in his closing submissions that this charge relied on what the Respondent’s drive looked like. There was some merit in that because, upon watching the race, one could easily be drawn to thinking that MOGUL was uncomfortable in its action from the 1500 metres, as alleged by the Stewards.

Stewards were alleging that MOGUL had become uncomfortable in its gait from the 1500 metres, but the Respondent had continued in the race despite the horse continuing to pace roughly. After activating gear at the 500 metres, the Respondent encouraged the horse with the whip and continued in the race. This was incompetent driving, Mr Renault alleged.

It was accepted by the Respondent that, for a good part of the race, from about the 1500 metres, the horse was uncomfortable in its gait but, in addition to that fact, it is necessary for the Stewards to prove that, by allowing MOGUL to continue in the race, the Respondent thereby drove incompetently.

The Stewards relied on evidence from the Veterinarian on duty at the race meeting, Dr Alisa Corser, who attended to the horse immediately it was pulled up just past the finishing line. Dr Corser said that, on first looking at the horse, her initial diagnosis was that the right-front fetlock had sunk lower to the ground, indicating a problem with the weight-bearing structure. However, she had assured the Trainer of the horse, Michael House, who had arrived at the scene that the horse was “all good”. The horse was loaded onto the horse ambulance while she was away from the scene, retrieving her vehicle. The horse was weight-bearing on both front legs.

Dr Corser carrying out her examination of the horse, was later able to complete a more thorough examination after MOGUL had been unloaded from the horse ambulance in the stable block. She diagnosed a Grade 4 “fractured medial sesamoid right front leg”. However, after being removed from the track and prior to her examination, MOGUL had “gone off” in the horse ambulance causing $6,500 worth of damage, according to Mr House. The evidence on this point was not disputed by the Stewards.

Mr Michael House, on behalf of the Respondent, argued very strongly that the injury was not initially serious (1 on a scale of 1 to 5) but, rather, it had been exacerbated by subsequent events, being assessed by Dr Corser as a Grade 4 in her examination of the horse following its removal from the horse ambulance. He pointed out that the horse ambulance protocol suggests that a horse should be sedated and stabilised prior to its being loaded onto the horse ambulance. This was not done.

Mr House went to great lengths to show in detail what had happened right up until the time that MOGUL had been unloaded from the horse ambulance. His submissions were compelling. The Adjudicative Committee cannot ignore the possibility that MOGUL either sustained an injury or aggravated a less serious injury sustained during the race during that time.

It is now necessary to examine MOGUL’s performance in the race. For large parts of the race, its gait was questionable. Mr House said that he was worried about the horse’s gait from the time it was behind the mobile barrier prior to the start. He described its gait as “not 100 per cent”. This was apparent from the video replay.

MOGUL has not previously had problems with a suspensory ligament but, Mr House submitted, because of “gear issues”, the horse may have knocked a knee during the running. That was the explanation given by the Respondent to Stewards when first questioned about the drive. The horse had not paced well in those spreaders in its previous two races, which the Adjudicative Committee viewed. He submitted that the Respondent had persevered with the horse in the race, expecting the horse to “come right”. When the Respondent eventually pulled the earplugs, and the horse’s gait did not improve, he has eased the horse out of the race. He did not pull the horse up because there was no catastrophic breakdown.

Mr House submitted that the spreaders were annoying the horse and it was likely that his suspensory had become loose. The horse had suffered an injury, it was not a fracture. The horse was weight-bearing post-race. The decision for the Respondent whether to continue in the race, he described as a “grey zone”. It was for the Driver to determine the right time to pull a horse up. Can such actions constitute incompetent driving?

The Adjudicative Committee concludes that MOGUL may well have been uncomfortable in its gait, but the question is – did the Respondent drive incompetently in failing to retire it from the race? The Stewards need to be able to show that MOGUL was suffering from an injury sufficiently serious that it could not continue in the race. There is no cogent evidence that it did have an injury other than the condition of the right-front leg when the horse was pulled up. Neither is there any evidence as to when that injury may have been sustained. It is plausible that it happened when the Respondent asked the horse for an effort at around the 500 metres, when he pulled the earplugs and tried the horse with the whip. The Adjudicative Committee accepts that, when the horse failed to respond at that stage, the Respondent eased the horse down. He did not pull it up, because the injury was not catastrophic. It cannot be asserted with any certainty precisely when the injury that was detected on pulling up, was sustained. At that stage, it was noticed by the Veterinarian who, in her evidence, stated that the horse had a right-front fetlock that had sunk lower to the ground, indicating a problem with the weight-bearing structure, but not a serious injury. It is likely that the injury, subsequently assessed as Grade 4, was sustained in what happened after the horse had been loaded on the horse ambulance. The Adjudicative Committee heard much evidence concerning that.

Given that there is no evidence that the horse was suffering from an injury throughout the running and, given that the response of the Respondent as explained was neither unreasonable nor incompetent, the Adjudicative Committee is not satisfied, to the required standard, that he has driven incompetently. Because of the serious nature of the charge, the Adjudicative Committee has to be satisfied on more than a balance of probabilities. It is not so satisfied. The Respondent’s defence, that MOGUL’s awkward gait is explicable, is persuasive.

To summarise the Adjudicative Committee’s findings:

1. Mogul was uncomfortable in its gait for approximately 1000 metres of the race;
2. The Adjudicative Committee accepts the evidence of the Respondent as to the “gear issues” that the horse had and that its awkward gait was not unusual for it, given those issues;
3. There was no evidence as to when MOGUL had sustained any injury during the running or, at least, prior to being eased by the Respondent when it failed to respond to his urgings;
4. A much less than serious injury was the on-the-spot diagnosis of the Veterinarian on the horse’s pulling up;
5. The procedure in loading the horse onto the horse ambulance and removing it from the track was not in accordance with the protocol. This was agreed by Dr Corser;
6. That MOGUL played up badly from that point until it was eventually able to be unloaded from the horse ambulance;
7. It is more probable than not that any injury was exacerbated by events subsequent to the horse being loaded onto the horse ambulance, and there is certainly doubt as to the extent of the initial injury;
8. The Respondent was denied the opportunity of having the extent of the original injury properly assessed;
9. Some weight has to be afforded to the judgement of the Respondent who had driven the horse in a race on ten previous occasions. He is an experienced Junior Driver, familiar with the horse and he deemed that the horse’s gait, though not perfect, was not a concern, and he even expected that it would get better as indicated by his activating gear and trying the horse coming off the back straight for the final time.

Given that there is no evidence that the horse was suffering from an injury, causing it to appear uncomfortable in its action throughout the running prior to the 500 metres, and, given that the response of the Respondent as explained was neither unreasonable nor, in the Adjudicative Committee’s view, incompetent, it is not satisfied, to the required standard, that he has driven incompetently. Because of the serious nature of the charge, the Adjudicative Committee is required to be satisfied on more than a balance of probabilities. It is not so satisfied. The charge of incompetent driving is dismissed.