Tylicki -v- Gibbons

a sorry episode all round. cannot see tylicki winning this and fear for him afterwards. he doesnt look happy now.

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By Chris Cook, senior reporter
7:15PM, NOV 29 2021
 
Freddy Tylicki told the High Court on Monday of the moment he uttered "a shout for survival" as horses ridden by him and Graham Gibbons collided during the Kempton incident in October 2016 that ultimately left him paralysed.

The 35-year-old was giving evidence at the start of a five-day hearing to determine whether Gibbons is liable to pay him damages for the catastrophic injury.

Addressing Judge Karen Walden-Smith from a position immediately in front of the defence barrister, because there is no wheelchair access to the witness stand in Court 69, Tylicki told of his final efforts to avoid disaster as he felt Madame Butterfly, Gibbons' mount, squeeze him and Nellie Deen against the inside rail.

"I took a pull and shouted: 'Gibbo!'" he recalled. "It was a shout for survival, to be honest, because I knew what was going to happen next ... But there was no response."

Gibbons, who watched from two rows behind Tylicki, is expected to give evidence later in the week, as will their fellow jockeys Jim Crowley and Pat Cosgrave, who also took part in the race. Gibbons denies liability and his barrister, Patrick Lawrence QC, spent much of Monday afternoon cross-examining Tylicki.

That involved repeatedly showing footage of the race in question from five different angles, some of those present wincing at the point when Nellie Deen fell, firing Tylicki on to the all-weather surface and bringing down two other runners. At the close of the day's evidence, Judge Walden-Smith thanked Tylicki for his patience in sitting through so much footage that must have been difficult for him to watch.

Tylicki sought to explain how Nellie Deen closed up on Madame Butterfly's inside as the field entered the bend out of the back straight in the mile race.

"That was a gap produced by Mr Gibbons," Tylicki said, "because he came off the fence even further and slowed it down. I didn't make any gap. I didn't force my way into any gap."

He then described being aware that "Mr Gibbons, all of a sudden, decided to come back on to the fence, obviously with me in the way". He recalled urging his mount forward so that Gibbons would not be able to make that manoeuvre but said Madame Butterfly was quickening at the same time.

"He had full control of the situation," he said. "The pressure from my left continued until he bumped me. Then, instead of coming off me, he continued to put the pressure on and get into my racing line and basically wiped me out."

Lawrence argued with Tylicki about the extent to which Madame Butterfly had moved away from the inside rail and, choosing his words carefully, suggested the jockey could have done more to avoid the eventual accident by restraining his mount from moving up the leader's inside.

"I'm not criticising your riding," Lawrence said, "because this all happened in a split second. Pat Cosgrave told the stewards on the day that you had been a bit ambitious, had gone for a gap that wasn't really there when you rode your horse forward. I have to suggest to you that that's a fair description. Your decision to press forward into that gap was ambitious, or, if you prefer a different word, it was bold." Tylicki disagreed.

Lawrence suggested that there was no more than a second between Tylicki's cry of "Gibbo!" and his horse falling and asked what Gibbons could have done in that time to rescue the situation.

"All he had to do was slightly shift to the left," Tylicki responded. "But the opposite happened. He went right. When I shouted at him, he still had plenty of time to shift to the left. But the shout was ignored."

Earlier, Lawrence had attempted to set in context his contention that Tylicki's claim should be turned down.

"Jockeys are navigating their way around a course on very powerful animals with minds of their own and under an obligation to obtain the best possible placing within the rules," he said.

"It is a highly competitive and dangerous sport and jockeys have to make split-second judgement calls all the time: which line to take, which horse is the real danger and so forth. In all those circumstances, it is unsurprising that interference happens and that there is a strong bias for treating it as careless rather than dangerous.

"The policy element is this: if what we say is a racing incident of the type that occurred here, albeit one with tragic consequences for one of the jockeys, if that type of incident will tend to generate litigation and interest from lawyers, it is not difficult to see that will have multiple ramifications which may create all sorts of difficulties for professional sport, not just horse racing."

The case is to continue on Tuesday when evidence is expected from Cosgrave. Edward Faulks QC, appearing for Tylicki, suggested Cosgrave would say something very different to what he told the stewards on the day.

Ryan Moore has prepared an expert report for Tylicki's legal team, which is quoted in their skeleton argument, made available as the hearing began. Moore is quoted as saying that Gibbons was "reacting to the fact that Nellie Deen is coming up the inner and he wishes to close the gap, which he is not entitled to do as it is dangerous".

Gibbons' team will counter with their own expert witness, the steward and former amateur jockey Charlie Lane. He will apparently tell the court that, had he been a steward on the day, he would have ruled the interference in this case was "accidental".

[For Reference]

KEMPTON PARK STEWARDS' REPORT
Monday 31 October 2016
Stewards: Lord Rathcreedan (Chairman), Christopher Price, Colin Vickers (Stipendiary), Richard
Westropp (Stipendiary), James Follows (Stewards' Secretary)
Going: Standard to Slow
Stalls: All Races: Inside


Fixture Note

The Stewards held an enquiry following the incident in Race 3 which resulted in the fall of four horses and riders. They interviewed the Senior Racecourse Medical Officer and the Clerk of the Course. The Medical Officer reported that Jim Crowley and Frederik Tylicki, two of the jockeys involved, had been treated extensively on the racecourse before being taken to a major trauma centre with suspected spinal injuries. The Clerk of the Course said that the racecourse was now medically compliant but having heard that the overwhelming feeling of the jockeys was that racing should not continue as a mark of respect to those injured, the Stewards decided that the rest of the meeting should be abandoned.

Race 3 - 3:20pm
THE BREEDERS BACKING RACING EBF MAIDEN FILLIES' STAKES (CLASS 5)

The Stewards held an enquiry under Rule (B)11.6 into the falls of NELLIE DEEN (IRE) ridden by Frederik Tylicki; ELECTRIFY (IRE) ridden by Jim Crowley; SKARA MAE (IRE) ridden by Steve Drowne and SOVRANO DOLCE (IRE) ridden by Ted Durcan, at the four furlong marker. They interviewed Graham Gibbons, the rider of MADAME BUTTERFLY (IRE) and Pat Cosgrave, the rider of CUTTY SARK but were unable to interview Tylicki, Crowley, Drowne or Durcan owing to their injuries. Having heard their evidence and viewed recordings of the incident the Stewards found that the falls were caused by Tylicki clipping the heels of MADAME BUTTERFLY (IRE) and NELLIE DEEN (IRE) falling, which in turn resulted in the falls of ELECTRIFY (IRE), followed by SKARA MAE (IRE), followed by SOVRANO DOLCE (IRE). Being satisfied the incident was accidental, the Stewards took no further action and ordered the placings to remain unaltered.

The Stewards gave permission for MADAME BUTTERFLY (IRE), trained by David O’Meara, to go early to post and to be mounted in the chute, as did ISSUE, trained by James Fanshawe.

Race 3 3:20
Breeders Backing Racing EBF Maiden Fillies' Stakes
1m, Class 5, £4,204.85
Going: Standard To Slow
1st 1. Madame Butterfly
9/4
Rip Van Winkle (IRE)  - Messias Da Silva (USA)  (Tale Of The Cat (USA))
Breeder Sir Robert Ogden
Owner Sir Robert Ogden
2nd 4. Cutty Sark
9/1
3rd 12. Tanzania Road
8/1
12 ran Distances: 8l, 2l, 2¾l Time: 1m 39.30s (slow by 2.50s) Unplaced Fav: Issue 2/1F  Total SP: 121%
Winning jockey: Graham Gibbons
Winning trainer: David O'Meara
Win: £3 Pl: £1.10, £2.60, £2.30 Ex: £22.30 CSF: £22.59 Trifecta: £137

I am incredulous that Tylicki has been so badly advised or has just had his head turned by greedy lawyers. He has absolutely zerpo chance of winning this case. The only winners will be the lawyers. The game would be dead if he won the case, of which he has no chance of winning.
All Tylicki is doing is creating more angst for himself. As the  defence lawyer said , and Pat Cosgrove on the day of the race "he was pushing up the inside going for a gap that wasn't really there". As the senior pro's always tell the apprentices "you are playing a dangerous game attempting to go up someones inner".
I am aghast the judge hs not thrown this case out already, or even said there is not a case to answer.
Its very sad Tylicki has been advised to follow this cause of action.

Assuming that Mr Tylicki pressed for this to go to court, it is surprising that the legal professionals have advised there is a case to answer. The expert report prepared by Mr Moore will be interesting, amazing that he has got involved.

Once the local stewards were satisfied the incident was accidental and took no further action, how will that get overturned in court? The the category of a riding offence should be decided by the act, not by the result of the act? I don't know what the court can even do if they are persuaded it was dangerous/reckless riding versus unsporting riding. All Mr Gibbons has to say is it was a race riding accident and he didn't intend to harm anybody and Mr Tylicki had a better view than him of the developing situation.

All well made points there Storm Alert.

I think Tylicki is up against it trying to win this one, and without wanting to sound callous, I think that is the best outcome for the sport. I can’t see a judge going against the opinion of the stewards on the day who deemed it to be accidental. I’d think his only hope is arguing that the inquiry was flawed because he wasn’t able to take part in it, but even so, I’d say that that is a long shot. This wasn’t a case of a rider seeing someone coming up the inside down the straight and moving across to put them through the rail, it was a bunched field coming round the bend. I saw yesterday that Tylicki’s lawyer seemed to be trying to make the argument that it was negligent because of the severity of the injuries suffered but that argument is doomed to failure. The act is either negligent or it isn’t - you can’t say that it was because Tylicki suffered such severe injuries, but that it wouldn’t have been if he’d been able to get up and walk back to the weighing room.

I am pretty disappointed to see that Moore has got involved in this (although in fairness we don’t know exactly what he’s going to say) considering he wasn’t even involved in the race.

Not disagreeing with any of the comment on here - but for people referencing the outcome of the stewards enquiry on the day - I would imagine FT's legal team will be quick to point out, that the only people present at it and interviewed, were those that were still able to walk and talk after the race.

I did make that point in my post The Management - however I think a judge is going to be pretty reticent in effectively trying to redo the stewards inquiry over five years later.

Some ill informed comments on here .

This is a civil not criminal case.

There are 3 issues

Does Gibbons owe a duty of care to Tylicki - unequivocally yes.

Was the duty breached? A tough but not necessarily insurmountable hurdle. T has to demonstrate that what G did was more than a momentary lapse of concentration or act of carelessness. Caldwell v Maguire & Fitzgerald (yes, him) held that such momentary lapses were not enough to breach the duty. Race riding is a dangerous sport. There are inherent dangers .Thus what G did has to be more than that. T needs to demonstrate that on the balance of probabilities (not beyond reasonable doubt) what G did was something beyond that momentary carelessness.

Was the breach (if proved) causative of the injury. Again, unequivocally yes.

Personally I think T is odds against but only slightly. I am surprised a compromise settlement without liability being conceded has not been negotiated. It might still be. The amount of money involved is significant.

I do NOT think T winning will open any floodgates. The bar will still be that set by Caldwell which is a high one. Conversely G winning might well have the effect of inadvertently encouraging the win at all costs mentality that is presently prevalent (seemingly with the tacit approval of the BHA).

Ryan Moore has prepared an expert report for Tylicki's legal team, which is quoted in their skeleton argument, made available as the hearing began. Moore is quoted as saying that Gibbons was "reacting to the fact that Nellie Deen is coming up the inner and he wishes to close the gap, which he is not entitled to do as it is dangerous".




Danger didnt seem to bother Ryan when he took Tarnawa right across the track in the Irish Champion STks with St marks Basilica.

The standard practice of younger jockeys trying to get up the inside of a more established jockey. Would this not be called dangerous also. I’d be amazed if they go against the stewards on this one

I was at Plumpton years ago, a 7lb claimer tried to come up the inside of the then champion jockey at the last,he put him through the wing of the fence.There was not even a stewards enquiry.

He did.

This isn't the jockeys fault.

It is years and years of easy-going rules and lenient punishments by the UK & Ireland Authorities and Stewards.

Any major incident usually results in Careless Riding the lesser sentence
Improper Riding is very, very rare

and amazingly ONE finding of Dangerous Riding since the rule was brought in almost 20 years ago, shows authorities care little for deterrents.

Interference rules are softly-softly, compared to every other country.
When was the last time not riding in a straight line from the stalls was called out.

More jockeys are inevitably going to get seriously injured or worse in the (near) future

What chance the defence have / show a video of Tylicki using the same manoeuvre to close the door on another jockey in the same situation , if they have that will be the end game.

Defence can also point out that such a decision would put many other sports in a absurd position: imagine boxers, rugby players racing car drivers etc etc sueing each other.

^^^

Of course. Very few of these catastrophic injury claims are not insurance backed. There is little point in securing a pyrrhic victory where the defendant is unable to satisfy the judgement due to lack of assets!

how many women have sued mandingo for stretch injuries?

parispike

The differance here is that Tylicki isn't sueing the BHA,but one of his competitors in the race.

A completley different ball game ( no pun intended).