Non Raceday Inquiry – NZTR v KI and LM Rae 28 May 2009 decision

hearingid: 7b042b86303f51b894b31dfab7bd1bb7

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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 - NZTR v KI and LM Rae 28 May 2009 decision

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Decision:

BEFORE A JUDICIAL COMMITTEE
AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Racing
 
BETWEEN   NEW ZEALAND     
THOROUGHBRED RACING

           Informant

AND Kenneth Ivan RAE
Lisa Marie RAE 
Licensed Trainers  
  
           Defendant

DATE OF HEARING:  28 May 2009

VENUE:    Ellerslie Racecourse.

PRESENT: Mr J. W. McKenzie (Chief Racecourse Inspector) for New Zealand Thoroughbred Racing
Mr B. F. McKenzie (Racecourse Inspector)
Mr R. D. Scott (Racecourse Inspector)
Mr J. Carter (Barrister & Solicitor) for Mr K. I and Mrs  L. M. Rae
Mr K. I. Rae

JUDICIAL COMMITTEE: J. M. Phelan (Chairman)
                                           R. M. Seabrook

DATE OF DECISION:  18 June 2009

JUDICIAL COMMITTEE’S DECISION ON PENALTY AND COSTS
             

Information No 62119 has been filed by Racecourse Inspector Mr R. D. Scott, and alleges a breach of Rule 1004(2) of the Rules of Racing by the defendant, Licensed Trainers Mr K. I. Rae and Mrs L. M. Rae.  The charge reads as follows.

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 1004(2) and 1004(3) IN THAT the horse Faalcon was brought to the Racecourse at Wingatui for the purpose of engaging in the WHK Taylors Sprint race at the meeting of the Otago Racing Club on Saturday the 31 January 2009, (in which said race such horse started) AND THAT such horse had had administered to it a prohibited substance, namely Ketoprofen, capable of affecting its speed, stamina, courage or conduct in breach of Rule 1004(2) AND THAT you were the joint trainers of the horse AND THAT by virtue thereof you are liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1004(3) of the New Zealand Rules of Racing unless you satisfy the Committee that you had taken all proper precautions to prevent the administration of such prohibited substance.”
Rule 1004(2) provides as follows.

“(2) When a horse which has been brought to any racecourse or similar racing facility for the purpose of engaging in any race or trial to which the Fifth Appendix hereto applies is found by any tribunal conducting an enquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct, the Trainer and any other person  who in the opinion of any Tribunal conducting an inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration or presence of such prohibited substance.”

BEFORE A JUDICIAL COMMITTEE
AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Racing
 
BETWEEN   NEW ZEALAND     
THOROUGHBRED RACING

           Informant

AND Kenneth Ivan RAE
Lisa Marie RAE 
Licensed Trainers  
  
           Defendant

DATE OF HEARING:  28 May 2009

VENUE:    Ellerslie Racecourse.

PRESENT: Mr J. W. McKenzie (Chief Racecourse Inspector) for New Zealand Thoroughbred Racing
Mr B. F. McKenzie (Racecourse Inspector)
Mr R. D. Scott (Racecourse Inspector)
Mr J. Carter (Barrister & Solicitor) for Mr K. I and Mrs  L. M. Rae
Mr K. I. Rae

JUDICIAL COMMITTEE: J. M. Phelan (Chairman)
                                           R. M. Seabrook

DATE OF DECISION:  18 June 2009

JUDICIAL COMMITTEE’S DECISION ON PENALTY AND COSTS
             

Information No 62119 has been filed by Racecourse Inspector Mr R. D. Scott, and alleges a breach of Rule 1004(2) of the Rules of Racing by the defendant, Licensed Trainers Mr K. I. Rae and Mrs L. M. Rae.  The charge reads as follows.

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 1004(2) and 1004(3) IN THAT the horse Faalcon was brought to the Racecourse at Wingatui for the purpose of engaging in the WHK Taylors Sprint race at the meeting of the Otago Racing Club on Saturday the 31 January 2009, (in which said race such horse started) AND THAT such horse had had administered to it a prohibited substance, namely Ketoprofen, capable of affecting its speed, stamina, courage or conduct in breach of Rule 1004(2) AND THAT you were the joint trainers of the horse AND THAT by virtue thereof you are liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1004(3) of the New Zealand Rules of Racing unless you satisfy the Committee that you had taken all proper precautions to prevent the administration of such prohibited substance.”
Rule 1004(2) provides as follows.

“(2) When a horse which has been brought to any racecourse or similar racing facility for the purpose of engaging in any race or trial to which the Fifth Appendix hereto applies is found by any tribunal conducting an enquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct, the Trainer and any other person  who in the opinion of any Tribunal conducting an inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration or presence of such prohibited substance.”

Chief Racecourse Inspector Mr J. W. McKenzie represented New Zealand Thoroughbred Racing (”NZTR”) at this hearing, and he produced an authority to prosecute from the Chief Executive of NZTR.

At the start of the hearing Mr Carter confirmed that there was no dispute about the facts of this matter.  It was however disputed that Mr and Mrs Rae were guilty of a breach of the Rules.  It was also agreed that his clients understood the charge and the Rule it was brought under.

Mr McKenzie presented and read a “Summary of Facts”.

Summary of Facts:

“Faalcon” was entered for and started in the WHK Taylors Sprint race (Race 11) at the Otago Racing Club’s meeting at Wingatui on 31 January 2009.  This horse won the race and was taken to the swab box for swabbing.  The urine sample was sent to the New Zealand Racing Laboratory Services (“NZRLS”) for testing, and on the 11 February 2009 the NZTR official Racing Analyst issued a certificate reporting that the urine sample had tested positive for Ketoprofen.

Ketoprofen is a prohibited substance as defined under Rule 105 of the New Zealand Rules of Racing, and Dr Andrew Grierson, the New Zealand Veterinary Consultant to New Zealand Thoroughbred Racing, confirmed in a written opinion that the usual dosage for a horse the size of “Faalcon” was 10 mils with a withholding period of three days prior to racing.

At the time of this incident “Faalcon” was being cared for by Ms Rebecca Allison at her Christchurch training establishment.  On 11 February 2009 Racecourse Inspectors Mr R. D. Scott and Mr B. F. McKenzie went to this training establishment where Mr Rae was located, and he was advised of the positive finding.

Mr Rae’s initial reaction was one of disbelief.  He made a written statement where he explained that he had arranged for Dr Patrick Casey, his Veterinary Consultant, to pre-race treat his horses that were based in Christchurch, before they raced at Wingatui on 31 January 2009.  He said that his horse “Faalcon” sometimes needed an injection of Ketoprofen before travelling, because he suffered from bad knee joints.  He said that he was aware that the withholding time for a dose of 10 mils of Ketoprofen was three days.

Ms Allison was also interviewed and she made a written statement.  She said that Dr Casey called at her stables at about 9-30 am on Wednesday 28 January 2009 and five of the Rae horses were injected with Ketoprofen.  She said that Dr Casey had used a 20 mil syringe, and that it appeared to be ¾ full of the substance.  “Faalcon” ran in his race at 6-15pm on 31 January 2009, which was approximately 3 days and 8 hours after the injection.

It was ascertained that at the time of this enquiry Dr Casey was in the USA. Attempts were made to contact him directly without success.  He was written to by NZTR and asked a series of questions, but there was no response.

At this hearing a letter from Dr Casey dated 6 May 2009 was presented in evidence.  In this letter Dr Casey made the following statements –
 “5  At that point I administered [to “Faalcon”] approximately 1800mg of  Ketoprofen (Trade name “Key”) a dose clearly outlined in the literature for the  past decade
 6. I can confirm that as a registered veterinary surgeon for the past 20 years, I  have never received any notification of pharmacologic withdrawal times for any  therapeutic medication by Thoroughbred Racing New Zealand
 7. I have heard from colleagues that Thoroughbred Racing New Zealand  relies on withdrawal times published in a handbook apparently published by the  Australian Veterinary Association.  To my knowledge this publication is  unavailable to registered veterinary surgeons in Australasia, unless they sign up
 to a special interest organisation
 8. Although I do not have that handbook I am aware that the said regimen of  therapeutic administration is in compliance with these guidelines and is in fact  considerably lower than recommended.”

This letter was referred to Dr Andrew Grierson, the Chief Veterinarian for NZTR.  Dr Grierson refutes Dr Casey’s assertions that it is difficult to obtain information about withholding times for therapeutic medications, these being available to veterinarians on the NZVA website.  More importantly Dr Grierson points out the label on a bottle of “Key” states a dose rate to be 2.2mg/kg, and that the maximum dose for “Faalcon” (weighed at 526kg 17 days after the treatment on 26 January 2009) would have been 11.57mL.  The treatment of 18mL or 1800mg was therefore 55% in excess of the label dose.

Although we did not have the benefit of hearing from Dr Casey in person, we are satisfied that as a registered veterinary surgeon it was his professional responsibility to be fully aware of the withholding times and the dose rates for any therapeutic medication administered.  It is also of serious concern that the dose rate and withholding time for Ketoprofen is clearly stated on the bottle.

On behalf of Mr and Mrs Rae Mr Carter did not dispute any of these facts.  Mr Carter did however make submissions that the defendants should not be convicted of this charge because of the proviso to Rule 1004(2), which provides that penalties may be imposed for a breach of the Rule –

 “….unless he satisfies the Tribunal that he had taken all proper precautions
 to prevent the administration or presence of such prohibited substance.”

As a basis for these submissions Mr Carter referred to the High Court decision in Cashfield House Ltd v. David & Heather Sinclair Ltd [1995] 1NZLR 452. This case held that if a principal had selected and instructed an independent contractor with the skill and care appropriate to the occasion, the principal should generally be entitled to leave the task to the independent contractor without further supervision.

In this case the owner of Cashfield Arcade wished to refurbish the mezzanine floor above the premises of tenants.  On behalf of Cashfields a Mr Hewat engaged the services of Portcullis to do the necessary demolition work in preparation for the refurbishment.  Before the start of the work Mr Hewat discussed the project on site with a Mr Shilton, who was in charge at Portcullis.  Mr Hewat made only one other visit to the site.

Towards the end of the work an automatic sprinkler system in the roof of the mezzanine fell and ruptured.  Water flooded the floor and went through into the premises of Sinclair and Syme below, who suffered damage quantified at $33,429-12 in total.

In the District Court there was a finding that Portcullis owed a duty of care to Sinclair and Syme, and there was no appeal from that decision.

There was also a finding that Mr Hewat was liable to Sinclair and Syme for negligence, and a further finding that Cashfield was vicariously liable for both Mr Hewat’s negligence and for that of Portcullis.  It was these decisions that were appealed from.   It was held that Cashfield was not vicariously liable for the negligence of Portcullis or Mr Hewat. 

The Cashfield case dealt with a claim for negligence by an independent contractor.  In the present case it is clear, we believe, that Dr Casey had a duty of care to Mr and Mrs Rae, and that a breach of this duty could form the basis for a claim for damages.  However this is not a matter that is to be decided by this Tribunal. 

It is quite clear to us that Mr Rae engaged Dr Casey to administer a prohibited substance to “Faalcon”.  Mr Rae was well aware of the appropriate dose and the withholding time after that administration.  Clearly Dr Casey was not.  Although Mr Rae was well aware of the proper dose for “Key”, and the required withholding time, it is also clear that Ms Allison was not similarly aware.  Had Mr Rae been present at the time of the injection he would have known it was wrong.
Mr McKenzie disputed that Mr and Mrs Rae could rely on the fact that they used a veterinarian as a defence.  He said that Mr and Mrs Rae were vicariously liable, not only for the acts of their employees, but also for the actions of a veterinarian.  Mr McKenzie likened this to the vicarious liability of a licensee under Sale of Liquor law for the actions of his servants.

To say that Mr and Mrs Rae should avoid a conviction under this Rule because they had the prohibited substance administered by a veterinarian does not, we believe, accord with the clear intentions of the Rules of Racing.  Mr Rae arranged for the administration of the prohibited substance, and we find that he cannot therefore argue that he took “….all proper precautions to prevent….” that administration.  It might well be that Mr and Mrs Rae have a cause of action for damages against Dr Casey, but this is a separate matter.

The Cashfield case dealt with who was liable for damages where negligence had been proved.  In the present case we are dealing with the liability of a trainer who arranged to have a prohibited substance administered to their horse.  The question of whether Dr Casey was negligent, and whether he is liable to pay damages for that negligence, is a completely separate matter.  We are satisfied that Mr and Mrs 
Rae are vicariously liable for the actions of Dr Casey.
 
For all the above reasons we find that the charge against Mr and Mrs Rae has been proved.

At the end of the submissions on guilt or otherwise we adjourned that matter so that we could consider our decision, which is set out above.  At the time of the adjournment it was agreed by the parties that penalty submissions would then be dealt with to avoid the need for a further hearing.

Submissions on Penalty: 
 
 Mr McKenzie presented and read submissions on penalty.
 
 Mr McKenzie said that it was clear that Mr and Mrs Rae did not personally administer the prohibited substance to “Faalcon”.  However they are vicariously responsible for the care and control of the horses they train at all times, whether the administration was carried out by an employee or a veterinarian.
 
 It was accepted that Mr and Mrs Rae had no direct involvement with the administration of this drug, although it is agreed that Mr Rae made the arrangements for it to be done. 
 
 To the defendants’ credit they have co-operated fully during the enquiry, and also that they have no previous convictions under this Rule.  Mr and Mrs Rae have also not disputed the facts of the matter.
 
 Mr Carter said that it should also be taken into account that Mr and Mrs Rae should reasonably have been able to expect that Dr Casey would have administered the correct dose of Ketoprofen to “Faalcon”.
 
 Decision as to Penalty:
 
 The penalty provisions in relation to a breach of Rule 1004(2) are contained in Rule 1004(3) which provides as follows.
 
  “(3) Every person who commits a breach of sub-Rule (2) or (2A) or (2B)
 or (2C) shall be liable to:
(a) Disqualification for a period not exceeding five years; or
(b) Suspension from holding or obtaining a licence, permit, certificate or registration for a period not exceeding five years.  If a licence, permit, certificate or registration is
renewed during a term of suspension, then the suspension shall continue to apply to the renewed licence, permit, certificate or registration; and/or
(c) A fine not exceeding $15,000.”

Mr McKenzie reminded us of the four principles of sentencing that should be followed in a case such as this, and we have taken these into account.

In determining an appropriate penalty we have taken into account the following matters which are to Mr and Mrs Rae’s credit.

1. They have a clear record.
2. There was no dispute about the facts of the matter.
3. They co-operated fully in the enquiry.
4. It was clear to us that they were let down by Dr Casey.

We identified no aggravating factors on this case.

In a case such as this a fine of $5000-00 would usually be appropriate, and there have been several recent cases where a fine of this amount has been imposed.  However we place some importance on the mitigating factor of the inappropriate actions of Dr Casey.  We have decided therefore that Mr and Mrs Rae will be fined the sum of $4,000-00
 
 Request For a Ruling:
 
Information No. 41301 has been filed by Racecourse Inspector Mr R. D. Scott seeking a ruling that “Faalcon” be disqualified.  The Information reads as follows.
 
 “I, the abovenamed informant hereby apply to the judicial committee and seek a ruling on the following matters:  THAT the horse Faalcon was brought to the Racecourse at Wingatui and started in the WHK Taylors Sprint race at the meeting of the Otago Racing Club on Saturday the 31 January 2009, AND THAT such horse had had administered to it a prohibited substance, namely Ketoprofen capable of affecting its speed, stamina, courage or conduct AND THAT by virtue thereof and of the provisions of Rule 1004(1) of the New Zealand Rules of Racing the said horse shall be disqualified from the said race.”
 
 Rule 1004(1) provides as follows.
 
 “(1) Any horse which has been brought to any racecourse or similar racing facility and which is found by any tribunal conducting an inquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct shall be disqualified for any race or trial to which the Fifth Appendix hereto applies in which it has started on that day.”
 
 Mr McKenzie sought the disqualification of “Faalcon” under the provisions
 of this Rule.  This matter was discussed between all parties and there was agreement that the disqualification of “Faalcon” was mandatory.  Accordingly “Faalcon” is disqualified from first placing in the WHK Taylors Sprint at the meeting of the Otago Racing Club held on Saturday 31 January 2009 at Wingatui.  The amended places are now as follows.

1st –  Brock (1)
2nd –  Tappy (3)
3rd –  Chief Ruler (9)
4th –   Spot On (12)
5th –  Diamond Jules (7)
6th –  Classic Tycoon (5)

The stake payable in respect of “Faalcon” is to be recovered by NZTR and is to be dealt with in accordance with Rule 1109.
 
 Costs: 
 
 Mr McKenzie advised that costs of $3,000-00 were being sought by NZTR to cover the costs of the supplementary sample being independently analysed in Australia.  Mr McKenzie said that the actual costs to NZTR in relation to this matter were in excess of $4,000-00.   We are satisfied that it is appropriate to award the costs sought, and there will be an order that Mr and Mrs Rae pay costs of $3,000-00.
 
 There will also be an order that Mr and Mrs Rae pay costs to the JCA.  This was one of three matters heard on 28 May 2009, and the JCA costs are being divided between those three cases.  There will be an order that Mr and Mrs Rae pay costs of $500-00 to the JCA.

_______________                    
J. M. Phelan    
Chairman      

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hearing_type: Old Hearing

Rules: 1004.2, 1004.3, 1004.1

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