Dylan Caboche's horse punch has the potential to cruel a whole sport

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This was published 6 years ago

Dylan Caboche's horse punch has the potential to cruel a whole sport

By Darren Kane
Updated

There's a maxim that will be rudely familiar to anyone who has survived at least the first year of undergraduate law: volenti non fit injuria. Loosely translated, it means: to a willing person, no wrong is done. Should a person "consent" to injury, that same person can't be heard to complain. In law, the injured person can't derive an entitlement to recover damages from the person who inflicted the harm.

A perfect illustration is to consider a hypothetical outcome of the headline UFC bout this weekend in Sydney. Let's say Fabricio Werdum not only loses his heavyweight fight against Marcin Tybura on Sunday, but also ends up spending a fortnight in intensive care at RPA, upon suffering a slow bleed on the brain; the result of repeated blows to the head.

Fighters consent to being assaulted, viciously even. In light of myriad serious and obvious risks that each fighter assumes on entering the octagon, it's nigh-on impossible to conceive that Werdum could, at law, blame Tybura for his predicament. Certainly not in NSW.

The threshold of what risks a person submits to shifts between sports. Consider Test cricket – although a batsman assumes the risk of serious injury that may flow from shouldering arms to even the fiercest and most hostile bowling attacks, the defence of "what happens on the field, stays on the field" evaporates if a member of that pace attack decides to use fists, instead of 156 grams of red leather. Again, the dividing line is discernable.

Shocking: Dylan Caboche punches his mount, She's Reneldasgirl.

Shocking: Dylan Caboche punches his mount, She's Reneldasgirl.

Conversely, what a professional rugby league player consents to is more opaque. It's over three decades since Canterbury enforcer Mark Budgen almost succeeded in forcibly relieving Steve Rogers of his bottom jaw one afternoon at Belmore Sportsground. Bugden was driven by a too-literal reading of his coach's instruction, that Rogers be "taken out". Rogers eventually sued for damages, and won. Easy enough, but questions of liability for injuries sustained through interactions that are against the rules of the game, but not more vicious, are tricky to answer.

There's a common thread running through each of these examples – the element of consent. Consent can't always be obtained, or given. A horse, for example, can't be asked whether it chooses to participate.

It's therefore imperative that those sports – thoroughbred and greyhound racing being prime examples – are legally regulated. Moreover, in theory at least, those sports do and must operate within the constraints of what's often coined a "social licence". A permission or acquiescence of sorts, granted by an evolved society, whereby the continued existence and viability of a sport is dependent (so the theory goes) on that sport adhering to, or exceeding societal expectations.

A social licence isn't codified in the same way that laws are; nor is such a licence easily revoked. Its terms are intangible and unwritten. The parameters of the licence can and do shift over time as community standards develop. Practices that may have been countenanced 50 years ago may, by 2017, be considered as properly abhorrent.

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I've owned racehorses (or, more accurately, three hairs of the tail of two of them). I also once had a share in two greyhounds – Kogarah's Jubilee and Jubilee Princess (no theme there) – who couldn't run out of sight for love nor money. In my own experience, the level of devotion and care provided by the vast majority of industry participants is extraordinary. Yet recent events suggest these are, in actual fact, troubling times.

Racing Victoria's ongoing investigations into allegations of systemic doping practices in the sport of kings – the inquiries came to light this month – appear to have every bit the flavour, complexity and seriousness of ASADA's prosecution of almost three dozen Essendon footballers who turned out for the club in 2012. For a sport that only exists because of the thoroughbred, you wonder whether the welfare of these magnificent animals rates at all for some people involved in the sport. Because, at the very least, a footballer has the theoretical opportunity to refuse a needle.

But it's the case of South Australian apprentice jockey Dylan Caboche – and the handling of it by Thoroughbred Racing SA – which has the potential to sever the social licence insofar as important elements of society are concerned.

It's already well-documented that, 10 days ago, at a provincial race meeting in Port Lincoln, Caboche dismounted from She's Reneldasgirl before the second race, while the horse was behind the starting gates. Broadcast footage of the incident shows the already fractious animal rear-up in pain against the strain of the lead rope held by the barrier attendant, immediately upon Caboche laying into the horse with the biggest right-handed uppercut he could muster. The stewards reported that Caboche was holding his whip in his right hand when he belted his mount.

I cannot recall seeing something more revolting in sport, which is why I am writing this column almost two weeks after the incident.

Caboche's actions were reported worldwide, yet this hardly was an isolated abnormality. Cases in Britain and Ireland, involving the now-retired Kieren Fallon and jumps jockey Davy Russell, are just two recent examples. (I'll leave you to scour YouTube for the awful incident involving Russell in August, for which he escaped any ban, even after a leniency appeal.)

Stewards charged Caboche with being guilty of "misconduct, improper conduct or unseemly behaviour". The exact reasons why Caboche wasn't charged with committing an act of cruelty to his mount are unknown (the charge was available to stewards), but the upshot is he was suspended for just two weeks. He's back in the saddle in a few days.

On any reasonable view, such a penalty is ridiculously inadequate; it sends countless wrong messages as to how seriously the racing industry treats animal welfare.

What should happen here is quite different. Caboche has been punished by his sport, so he can't easily be whacked a second time. But, section 13(2) of South Australia's animal welfare act makes it a criminal offence if a person "ill treats an animal". One way in which a person can be guilty of doing this is if he or she "intentionally, unreasonably or recklessly causes the animal unnecessary harm". The maximum penalty a court can impose is a $20,000 fine, or two years' imprisonment. Remember, that racing doesn't continue in isolation from the criminal law.

Banning a jockey for a fortnight – even an inexperienced apprentice – in these circumstances is weak, regardless as to Caboche's remorse and contrition. So a memo to RSPCA in South Australia (the prosecuting authority) if it is reading this – the evidence is all there and available …

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Such serious incidents must be dealt with independently of racing, whether or not racing deals with such a situation appropriately.

I've a weighty tome at home titled Ampol's Sporting Records, published in the late 1970s. There's an uncaptioned, double-page photograph of a dying racehorse lying stricken on the track following a fall. Its jockey is cradling the horse's head, as if to provide some modicum of comfort. Talk about the other end of the spectrum ...

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