Bernard Desker Gary and Others v Thwaites Racing Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 15 August 2003
• Neutral Citation: [2003] SGHC 175
• Court: High Court (Singapore)
• Year: 2003
• Published date: 03 October 2003
• Plaintiff Counsel: Liew Teck Huat (Niru & Co)
• Defendant Counsel: Andre Arul (Arul Chew & Partners)
• Subject Matter: Contract,Contractual terms,Implied terms,Whether recommended general terms and conditions can be implied to give business efficacy to a contract.,Whether recommended general terms and conditions can be incorporated into a contract on the basis that such conditions reflect custom and practice.,Tort,Conversion,Claim in conversion – Whether defendants had converted racehorse by mistakenly sending it to Ipoh.,Negligence,Negligent advice – Whether racehorse trainer's assessment of racehorse's suitability for racing constituted negligent advice.
• Citation: [2003] SGHC 175

1 Racehorse owners do not train their horses themselves. They buy them and send them to trainers who look after them and prepare them for racing. If the horses do not perform to expectation there may be unhappiness.

2. In this case, the plaintiffs are the horse owners and the defendants the trainers. The first plaintiff Gary Desker has been in horse racing since 1993. He owns horses with other persons, and he manages a stable with the assistance of his wife, the second plaintiff.

3. The second defendant Malcolm Thwaites, a leading horse trainer in Singapore, offers his services through his company, the first defendant. Leigh McKenzie is his racing manager.

4. In July 2000 the plaintiffs imported three horses namely Classic Sport, Supreme Gold and Crypto Charge from the United States, and placed them with the defendants. They bought another horse Palace Star the following month which was also placed with the defendants after it was purchased. This horse was checked by Malcolm Thwaites before it was bought.

5. The horses are no longer with the defendants. Palace Star and Supreme Gold were put down and Classic Sport and Crypto Charge were taken out of the defendants’ stables and transferred to another trainer, Stephen Gray.

6. The plaintiffs have instituted these proceedings against the defendants. They identify the issues in their claim as

(i) Whether Malcolm Thwaites gave negligent advice which lead to the purchase of Palace Star.

(ii) Whether the defendants failed to provide proper and adequate treatment for Palace Star, Classic Sport and Supreme Gold.

(iii) Whether the defendants were negligent in continuing with the training of the horses, Classic Sport, Palace Star and Supreme Gold and racing them, without providing treatment for the injuries they carried.

(iv) Whether the defendants in mistakenly sending Palace Star to Ipoh, converted the horse.

(v) Whether the plaintiffs had agreed that Palace Star should remain in Ipoh under K P Hoy as trainer.

(vi) Whether the plaintiffs gave instructions and authority to the defendants to put down Palace Star in Ipoh.

Palace Star

7. Richard Ang, the owner of Palace Star offered it to Gary Desker. Richard Ang told him it needed an injection to the knee.[1] Gary Desker was interested and intended to send it to trainer Charles Leck if he bought it. When he broached the subject with Leck, he was advised that the horse should be sent to a veterinary surgeon for a check-up before any commitment was made.[2]

8. Before he could arrange for a veterinary examination, he received a telephone call from Malcolm Thwaites, who was at Richard Ang’s stable. Gary Desker recounted that “(h)e advised me that the horse was a good horse and all that was needed was an injection to the knee. He confirmed that the asking price of Richard Ang (at S$45,000) was reasonable. I did ask Malcolm Thwaites whether I needed to send the horse to the vet for a report. He represented that he had inspected the horse and there was no need to send it to a vet.”[3] He bought Palace Star and sent it to the defendants for training on 30 August 2000.

9. The plaintiffs claimed that “but for the representations made by the 1^st Defendants on behalf of the 2^nd Defendants (sic) that Palace Star was a suitable horse for racing, the Plaintiffs would not have purchased it without extensive medical tests being performed on it as is the practice.”[4]

10. In March 2001 Malcolm Thwaites informed Gary Desker that Palace Star required surgery on its fore legs. The operation was undertaken by Dr Ian Fulton on 4 April. Gary Desker recalled that “(a)fter the operation, I had a meeting with Ian, Leigh McKenzie together with the 2^nd Plaintiff. At that meeting, I was advised by Mr Fulton that when he performed the surgery, he observed that the horse’s fore legs (which he operated on) had wear and tear of an 8-year old horse.”[5]

11. Malcolm Thwaites also advised him that Dr Fulton would return in two to three months to review the horse’s condition. However, in early June he learnt from Leigh McKenzie that the defendants had sent Palace Star to Ipoh by mistake, and that a trainer had done a gallop on the horse.[6]

12. He and his wife met Malcolm Thwaites and Leigh McKenzie at the Orchard Hotel to discuss the matter. Malcolm Thwaites apologised for the error and offered to a refund on the expenses incurred on Palace Star from April to June 2001 to pay the operation costs. Malcolm Thwaites also asked Gary Desker if he wanted Palace Star back in Singapore but he could not decide without knowing the horse’s condition. Malcolm Thwaites promised to keep him informed, but did not follow up on that. He did not hear further about Palace Star until he was informed by the Malayan Racing Association (“MRA”) in February 2002 that it would be deleted as it was not raced for more than a year.

13. Malcolm Thwaites’ evidence was that “(s)ometime on or about August 2000, the 1^st Plaintiff approached me and told me that he was considering purchasing a horse known as “Palace Star” which he told me had some joint problems. He asked me whether “Palace Star” was suitable for racing and training. I was not asked to give my opinion on the said horse’s medical condition.”[7]

14. He went to Richard Ang’s stable where he examined the horse. He did not detect any injuries although the joints did not look normal. He told Gary Desker that

“Palace Star” was “worth taking a chance on.” Even at this stage, I qualified my comments and made it clear that any purchase of “Palace Star” would be a gamble on the Plaintiffs’ part. At this point in time, Palace Star was handicapped at top weight, namely 59 kg and because of its small frame, both of these factors combined with its DJD [degenerative joint disorder] meant that the horse already had three (3) disadvantages in racing.[8]

15. The plaintiffs’ pleaded case that Malcolm Thwaites was asked whether Palace Star was a suitable horse for racing raised interesting questions. What does “suitable for racing” mean? Is a positive answer equivalent to an examination by a veterinary surgeon? Taking the second question first, Gary Desker was advised by Charles Leck to send the horse for inspection by a veterinary surgeon before committing himself on the purchase. He knew Malcolm Thwaites is a trainer, not a veterinary surgeon. When he sought his view on Palace Star’s suitability for racing, Gary Desker cannot expect to get the equivalent of a veterinary report.

16. Malcolm Thwaites’ explanation that

I understood the 1^st Plaintiffs request to mean that he was seeking my expert opinion on the winning potential of “Palace Star” based on my assessment of inter alia the race horse’s track record and temperament. This opinion was to be given in my capacity as a professional race horse trainer based on my knowledge and experience from my many years of participation in horse racing and dealing with race horses.[9]

was reasonable. He could not have considered himself qualified to give an opinion on a horse’s medical condition when he would consult the veterinary surgeons of the Singapore Turf Club and foreign veterinary surgeons like Dr Fulton when there were problems with the horses in his care.

17. Gary Desker acknowledged that he was told that the horse’s knee needed treatment by injection.[10] The previous owner Richard Ang described the horse to be in perfectly fine condition “save for some small bruises and minor injuries which are common for race horses” and “its right fore fetlock was swollen due to strain.”[11]

18. When Palace Star was brought to the defendants in late August 2000 it was examined again. No swelling, pain or heat nor limp was detected.[12] The horse was trained and raced on six occasions between 28 October 2000 and 3 February 2001. It performed creditably, coming second four times.

19. However in mid-February 2001, it became lame from joint problems.[13] Dr Fulton was engaged to carry out an operation on it. Dr Fulton specialises in horses and has considerable experience in treating them. He also lectures and writes on the subject. Although his practice is in Australia, he has an arrangement with the defendants to make regular visits to their stables.

20. He operated on the front fetlock joints of Palace Star on 4 April 2001. He found ulcerations and erosions in the left fetlock indicative of severe advanced degenerative joint disease. These injuries would have existed four to eight weeks before the surgery[14] but severe degenerative joint disease would have developed less than six months prior to the operation.[15] He noted in his surgery report that retirement of the horse was a real prospect because of the advanced degenerative bone disease in the left fetlock. He proposed two alternatives to retirement, first, to give the horse total rest for four months before undertaking a training program, and second, to treat it for six weeks, then reassess the lameness and pain in the fetlock after six to eight weeks.

21. By the plaintiffs’ case, Malcolm Thwaites had informed Gary Desker that the horse needed an injection. The plaintiffs had no basis to dispense with a veterinary report because of anything that Malcolm Thwaites said because he was not a veterinary surgeon and did not give veterinary advice. Malcolm Thwaites’ advice was that Palace Star was suitable for racing, and events vindicated him. The horse raced with some success and did not become lame until six months after it was purchased.

22. The plaintiffs also alleged that the horse’s condition was caused by negligent handling and training. This complaint was not supported by any evidence. Counsel was left to speculate that “(f)or Palace Star to have entered into these races, the hard training sessions would have been carried out. This would have severely aggravated the joint injuries. There is no other explanation. Certainly, the Defendants have offered none except to say that race horses being what they are, injuries should be expected...