Non-Raceday Inquiry – L O’Sullivan

hearingid: 44eea5e83ab0de4dad0d7212bdbeca87

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - L O'Sullivan

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Decision:

Information 65287 alleges as follows:

IN THE MATTER       of the New Zealand Rules of Racing

AND

IN THE MATTER       of Information No.65287

BETWEEN                 Cameron George, Senior Stipendiary Steward

                                     for New Zealand Thoroughbred Racing  -  Informant

AND                             Lance O'Sullivan of Matamata

                                     Licensed Public Trainer  -  Defendant

DATE OF HEARING:  Friday 17 November 2006

VENUE:                      Suite 1, Waikato Racing Club, Hamilton

JUDICIAL COMMITTEE:       GG Hall  (Chairman)   RM Seabrook  (Member)

PRESENT:                  Mr C George     (Informant)

                                    Mr L O'Sullivan  (Defendant)

                                    Mr G Tankard    (Spokesperson for the Defendant)

                                    Mr F Powrie       (NZTR)

                                    Mr J Oatham       (Stipendiary Steward)

                                    Ms M Stanbury    (Registrar)

DATE OF DECISION:  27 November 2006

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RESERVED DECISION OF JUDICIAL COMMITTEE

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THE CHARGES:

Information 65287 alleges as follows:

The relevant Rule provides as follows:

Mr George, Senior Stipendiary steward, opened his case by emphasising that rule 707(6)(a) requires a trainer to report to the stipendiary stewards any condition which "may" have affected a horse's performance. He asked whether he could put questions to the defendant, Mr O?Sullivan, the trainer of PENTANE. Mr O?Sullivan had no objection to this, and he was asked to describe the week immediately prior to the horse racing on October 7 last. Mr O?Sullivan said there was nothing untoward, PENTANE had had a normal preparation. The horse had worked early morning every day at their private track. On the Friday the horse had pulled up in sound condition, just like the previous days. PENTANE was not ridden after this time. After work on the Friday, a slight skin irritation, described by Mr O?Sullivan as slightly raised nodules, like pimples, was observed on the right shoulder region of PENTANE. He was adamant it was in this region only at this time. There was nothing to cause concern but the vet was called as a precaution. PENTANE had suffered from a skin irritation over the previous 6 weeks. Jim Marks (a veterinary surgeon) arrived and inspected the horse. He said to Mr O?Sullivan that he was being "paranoid" and if the horse was not PENTANE, he would not have been called.

Mr George also referred to two newspaper articles of October 9 (exhibits 2 and 3) where it was stated that Mr O?Sullivan had said that PENTANE had been treated for boils prior to the race. A telephone conversation was held between Mr George, Mr Powrie and Mr O?Sullivan after these articles were published and this was recorded with Mr O?Sullivan's consent. It was produced as exhibit 4. Mr O?Sullivan indicated that a boil, a small raised lump, had been discovered under the saddle of PENTANE after the race. At one point he stated he thought it was tender to touch, but it was "never breaking out". He said he was unaware of the boil prior to the race. If it were otherwise, he said, he would have brought it to the attention of the stipendiary stewards. Later in the conversation he said: "In fact I touched it and he wasn?t sore on it at all." This second statement is consistent with Mr O?Sullivan's oral evidence before the Committee.

A report dated 9 October 2006, signed by Mr Marks, was produced (exhibit 1) in which it was stated that PENTANE was treated on Friday 6 October with "25ml Alamycin IV for boils on the back and shoulder". It was noted there was not much swelling and that anti-inflammatory treatment was not given as PENTANE was to race the next day. When the horse was examined on 9 October there was mild discomfort in the lumbar region where the back of the saddle sits. Further treatment, including anti-inflammatory treatment, was given on that day. The first paragraph of Mr Marks' report concludes with the comment that "it is difficult to say whether this condition was the cause of the poor performance." An ECG and a blood test showed no abnormalities.

Mr Tankard, speaking on behalf of Mr O?Sullivan, emphasised that PENTANE had not been vetted on the day of the race. He accepted the horse was "the favourite beaten 6 lengths". He submitted that 100s of horses have the condition which PENTANE had. It is caused by humidity and comes up very quickly. Tetracyclines, of which Alamycin was one, are accepted not to affect a horse's performance. He called Ms Jillian Cook, a foreperson in the O?Sullivan stable and who had the primary responsibility for attending to PENTANE. She stated that when she saw the condition on the Friday it was on the right shoulder, in front of where the saddle would have gone. There was nothing on the horse's back that would have affected its performance. She said there was no significant change in the condition on the Saturday, although if anything, it appeared better. On the Monday, however, the condition presented itself as lumps across the horse's back where the saddle would have been on raceday. She said she walked the horse for the next few days and it was walking freely. She had first noticed the condition on the Friday morning and it was similar to when the horse had raced at Paeroa on 23 September last. The horse had been treated on that occasion and had won the Evans Classic. She said in her view the treatment was more for cosmetic purposes, so PENTANE would look good when it was walked around the birdcage. She was confident when she paraded the horse on the day of the race that she was walking the winner of the Kelt.

Mr Tankard produced in evidence (exhibit 6) a letter dated 16 November 2006 from Mr PA Fraser, veterinary surgeon, Cambridge Veterinary Services, which states "boils are very common at this time of year due to humidity and there are large number of horses are affected [sic]. Most boils are small and are of little significance?." As to treatment, he says "the tetracyclines are not restricted as regards the Rules of Racing as they are accepted not to affect a horse's race performance."

Mr Tankard also called Mr Dan Shaw, an experienced veterinary surgeon who practises with Mr Marks. Mr Shaw gave both written and oral evidence. In a statement dated 15 November 2006 he described PENTANE's condition in the following terms: "The horse has suffered this spring a very mild skin condition commonly known [as] boils or infected wither. This involves a mild inflammation of the hair follicle, caused by sweating and wet weather, and rubbing of tack or covers." He said he had treated PENTANE for this condition on 4 separate occasions in September/October 2006, including before it raced and won at Paeroa on 23 September. He also gave examples of other horses in the stable having been treated just prior to racing and winning, namely BONAICHI (The Message 1200, 6 September and the Bonecrusher Stakes, 30 September) and KEEP THE PASSION (Coogee Walk 3 year-old, 10 September). He said he had last examined PENTANE before it raced on the Tuesday afternoon. It was not suffering from a skin condition then.

Mr Shaw said he was called to examine PENTANE shortly after it was taken off the float after returning from the racecourse. He estimated this would have been around 11 pm Saturday. He could find nothing obvious that could have affected the horse's performance. PENTANE was scoped and flexion and blood tests done. It was given a full clinical examination. He said PENTANE had some degree of irritation, but this was common to some 30% of horses in the Matamata region. He said it was a physiological rather than a pathological condition; it was a normal adaptation to a set of circumstances. The irritation on the shoulder was dead and not an active infection. He said there was nothing he could put his finger on that would have caused the horse's poor performance. In response to a question as to whether the skin condition "may" have affected the horse's performance, Mr Shaw said in his view, "absolutely not". He said this opinion was not based on a pre-race inspection of PENTANE as he had not seen the horse on Friday, but on his post-race examination and his knowledge of PENTANE's history. In response to a question from Mr George, he agreed a skin irritation could cause pain and, if it was very painful, then it could affect the performance of a horse. But he emphasised again that PENTANE showed no reaction to his touching when inspected on the Saturday night. He described Alamycin as a tetracycline, a mild anti-biotic for killing bacteria in the skin. He said it was quite common for a horse to race after treatment with a tetracycline. It was not a notifiable drug under the Rules of Racing.

Mr Shaw's letter of 15 November states PENTANE's skin condition "totally resolved as the weather warmed, allowing the animal to go unrugged at night." The horse had raced below expectations in Australia and further diagnostic work indicated "a low grade respiratory condition that may be a more logical contribution to the horse's form."

As the informant was unaware until the hearing that Mr Marks had provided a second report dated 14 November (exhibit 5) and, as there was an apparent conflict between the two reports, leave was granted to the informant to seek clarification of a number of issues relating to the nature and extent of the skin condition. In this second report Mr Marks stated that Ms Cook had told him that the "boils" were in the right shoulder region only, and he indicated he had no record of their extent in his treatment diary. Moreover, Mr Marks stated at the conclusion of this second report: "There was never any suggestion that this condition could affect this horse's racing performance the next day and the treatment was only given as a precautionary measure."

Mr Marks was unable to appear before the Committee in person at such late notice. The informant drafted questions for Mr Marks' consideration. With the assistance of the Committee, these were faxed to Mr Marks who replied in a similar fashion. These questions and answers were admitted as exhibit 8 with the consent of both parties. Mr Marks indicated that other than the comments in his report of 14 November, he stood by his report of October 9 and did not wish to make any alterations. He indicated Ms Cook had suggested to him on 14 November that the condition was only in the right shoulder of PENTANE. He also said that he had administered Alamycin at the trainer's request as a precaution to prevent a flare-up of the skin disease as the horse was to race the next day. As it was only a pre-cautionary treatment, he did not examine PENTANE closely to observe the extent of the condition.

Mr George, in closing, emphasised it was Mr O?Sullivan's obligation to tell the stipendiary stewards of any condition that "may" affect a horse's performance. This was in the best interests of racing. Information should be given to the betting public. In his view, the condition from which PENTANE was suffering should have been reported to the stewards at least an hour prior to PENTANE starting on October 7, particularly as the condition was such that Mr Marks had considered anti-inflammatory treatment. He said there was no need to quantify levels. The stewards needed to know about any condition that might affect performance as they had to be able to ascertain that PENTANE was in a fit condition to race.

Mr Tankard reiterated that the treatment was given to PENTANE to prevent a flare-up. The Alamycin was administered to prevent the condition deteriorating. There was no reason to declare the injection. A number of horses had been treated in an identical way. There was never a suggestion this skin condition could affect performance. Why would it be different on this occasion. He concluded by stating that the informant had not presented any evidence that the skin condition may have affected the horse's racing performance. There was no reason why Mr O?Sullivan should have advised the stipendiary stewards under this rule.

The obligation on Mr O?Sullivan is to notify the stipendiary stewards of any condition or occurrence that may affect the running of PENTANE in the race. The issue is thus whether the skin irritation was a condition which was likely to affect the horse's racing performance on October 7 in the Kelt Capital $1,000,000 Stakes. It was not alleged that the injection of Alamycin, itself, was an occurrence that might have affected the running of PENTANE in the race.

In determining this matter, the first issue is to establish the nature of the condition from which PENTANE was suffering. We are satisfied that although it has been referred to as "boils" it was a minor irritation of the skin, slightly raised lumps, nodules or pustules, in the nature of pimples, and more correctly termed a skin condition. The condition clearly worsened after PENTANE raced, and although it appears to have presented in the form of a boil under the saddle after the horse raced on the Saturday, it is clear that this was not sufficient for those familiar with the horse, including an experienced vet, Mr Shaw, to conclude that this was the reason for the poor performance.

Secondly, there is a clear conflict between the 2 reports of Mr Marks, dated 9 October and 14 November, as to the precise location of the condition. The first report states that, in addition to the shoulder region, the condition was also on the back of PENTANE. The second report says it was in the right shoulder region only and suggests that the clarification of the extent of the condition and its exact location was at the request of Ms Jillian Cook, a foreperson in the O?Sullivan stable. She gave evidence on the location of the condition. She responded directly to questions put to her by the Committee in a straight-forward and forthright manner. She was unwavering in her evidence that the condition prior to the horse racing on Saturday was restricted to the right shoulder region only and did not spread to the back until the Monday after the horse had raced. We accept this evidence and find that prior to PENTANE racing, the irritation was limited to the right shoulder region only, and would not have been affected by the saddle or bridle on raceday.

Thirdly, the expert evidence before the Committee from Mr Shaw is to the effect that some 30% of horses in the Matamata area suffer from this condition. Mr Fraser also says it is a common occurrence. We accept it is quite common for a horse to race with this type of skin irritation and also while being treated for the condition with a tetracycline.

Fourthly, PENTANE had previously suffered from this condition. He had been treated on 4 occasions and had performed well, including a win at Paeroa on 23 September. On these occasions he had also been treated with a tetracycline. In addition, we were informed that BONAICHI and KEEP THE PASSION had also won while being treated for a similar skin condition. These matters support the statement of Mr Marks in his report of 14 November that there was never any suggestion this condition could affect PENTANE's racing performance on October 7.

Fifthly and finally, we accept that the treatment was as a precaution to kill the bacteria and to prevent the condition spreading, particularly as PENTANE was about to race in Australia, and was also for a cosmetic purpose, with the horse to be presented for racing the next day. There was no obligation to inform the stipendiary stewards of the injection of Alamycin to PENTANE as it is not a notifiable substance under the Rules of Racing. It is a substance that is commonly given to horses in the Waikato region, including thoroughbreds, and is not known to have any effect on a horse's performance.

Taking into account all these matters, and giving them due weight, we are of the view that it was open to Mr O?Sullivan to reach the conclusion that the skin condition would not be likely to affect the racing performance of PENTANE. We therefore find there was no obligation upon Mr O?Sullivan to inform the stipendiary stewards that PENTANE was suffering from a condition that "may" affect the running of the horse in race 7, the Kelt Capital $1,000,000 Stakes, on 7 October. The charge is therefore dismissed.

The parties may, within 10 days of the delivery of this judgment, make written submissions as to costs.

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hearing_type: Old Hearing

Rules: 707.6.a

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