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Bourke, Judy; Opie, Hayden --- "Clifford Panham, The Horse and the Law (2004)" [2004] UNELawJl 14; (2004) 1(2) University of New England Law Journal 259



Reviewed by

Judy Bourke[*] and Hayden Opie[**]


It is an auspicious day in 1976 at Werribee Park, the new and very grand venue for the Pony Club Association of Victoria’s State Championships for Teams-of-Four (Flat) and Novelty races. Spectators watch anxiously as a chestnut horse is ridden flat-chat trying to win a Barrel Race on a course demarcated by nothing but white rope. Cars are parked right up to the white rope; parents, kids, horses and floats. No marshals, no doctors, no vets on hand.

The rider of the chestnut horse wants to win but his helmet falls over his eyes – a typical pony club fiasco. He crosses the line but does not stop riding hard. The chestnut horse tries unsuccessfully to jump over a car parked at the white rope beyond the finish line. The rider is pitched onto the roof. The horse goes through the front windscreen. The rider walks out, uninjured; the poor horse is badly injured and soon destroyed. Mercifully no-one is watching from the damaged car.

It is not hard to see many legal issues arising from this actual incident and ones like it occurring every year at various community events around the nation. What if the horse was subject to contract of sale? What if a bystander was hurt? What rights had the car owner? Were the Werribee Park trustees liable? What if the rider did not own the horse? What value did the horse have at death in the event someone was liable? What if the horse was in foal to a stallion with a high service fee? What if the horse had bolted (with the same end result) because a spectator’s dog had run onto the course?

The Horse and the Law by prominent, horse-loving, Melbourne Queen’s Counsel, Cliff Pannam, will assist in answering each of these questions and many others that may be asked by the general horse owner. Yet this well-presented volume offers very much more to those interested in racing horses as well as observers of the racing and gambling industries.


At first glance it is tempting to place The Horse and the Law within the growing body of legal literature on ‘sports law’ or, more broadly, leisure pursuits – whether artistic, cultural, sporting or travel-related. Law follows social developments and it is more than a little trite to observe that increasing time away from the workplace and greater wealth afford new opportunities for leisure. Not surprisingly, the increasing scale and commercialisation of leisure, the ‘seriousness’ with which it is approached and numerous interventions by governments of all levels have propelled legal writing in the leisure law field in recent decades. Mr Pannam acknowledges the role of the horse in sporting and leisure activities through ‘the legion of thoroughbred and standardbred racehorses, show-jumpers, dressage horses, eventers, hunters, rodeo horses, and polo ponies, to say nothing of the family hack and the child’s pony’.[1] To this list might be added others such as horses used for the increasingly popular tourist and holiday activity, the trail ride.

Horse racing, in particular, is big business. It is one of the largest employment industries in Australia, embracing breeders, trainers, jockeys, veterinary surgeons, farriers, stable-hands, stud masters, bookmakers, caterers, gardeners, TAB operators and media personnel. Horse racing generates huge profits for private industry and significant revenue for government. Hedged by a maze of regulation which extends from the rules of racing to gambling legislation, and from taxation to employment rules, the modern horse carries a weight of law with its other burdens.

However, this book has much longer bloodlines than suggested by its unquestionable association with the new fields of sports and leisure law. Historically, the horse has played key roles in society as a means for transport and powering machinery, especially before the industrial revolution. The presence of former stables at the rear of many homes in the inner areas of Australian cities and the use of the expression ‘horsepower’ in regard to all manner of modern mechanical engines speak strongly of the horse’s place in the daily life of earlier generations. Not surprisingly, extensive bodies of law sprang up concerning the breeding, purchase, hire and sale of horses, the work of farriers and horse-breakers, veterinary care and liability for injury caused by escaping or dangerous equines. These laws are compendiously described in the numerous editions of George Oliphant’s, The Law of Horses, first published in 1847. Mr Pannam does not ‘pretend such an ambitious coverage’[2] but a number of his chapters carry forward the heritage.

Notwithstanding that the horse and the law theme is long-established in legal literature, great changes to its content have occurred over the past 200 or more years tracking the changing place of the horse. To some degree this is reflected in Mr Pannam’s book as it has evolved through its first (1979) and second (1986) editions to the third. Not only has the book increased in page length by some 50 percent, but additional chapters have emerged on restraint of trade, stud farms and transport by horse floats. These reflect legal developments built on the expansion of the commercial racing industry as well as a need to address old problems in new contexts.

In addition to leisure law and the older law surrounding the horse, there is a third dimension to the changing nature of the horse and law theme and it is one that this book does not address to any degree. It concerns the emerging animal rights movement and its manifestations in the legal literature.[3] For horses, this might touch upon the future of jumps racing, the appropriateness of the administration of permitted performance-enhancing drugs and the role of the RSPCA under state legislation as the protector of animal welfare.


Noting that lawyers love ‘to put the law into compartments’[4] according to subject areas such as torts, contracts and damages, Mr Pannam observes that ‘[i]t is unusual to find the legal problems associated with a particular field of activity or interest the subject of separate treatment.’[5] This is hardly an accurate observation early in the 21st century. Legal literature and law school curricula abound with topics on, for instance, construction law, cyber law, environmental law, film and television law, mining law, the law of the sea and sports law. In sports law alone, books and articles have appeared on specific themes[6] as well as the relationship between law and individual sports[7] and even particular sporting clubs.[8]

Mr Pannam goes on to claim quite correctly that while the law’s compartments may be determined according to disciplines or principles, the interests and needs of the populace in matters legal arise in activities that do not recognise such boundaries. A book such as The Horse and the Law, which addresses the relationship between the law and an activity (in the sense that the horse is the focus of various undertakings), therefore bears greater resemblance to legal practice than legal theory and will, so the author argues, be more likely to attract the interest of the layperson. He uses this to explain the manner in which the book has been written, namely, to be ‘generally understood by someone who needs guidance in relation to horse oriented problems.’[9] He acknowledges that on occasion he has failed where the subject matter has been too technical to simplify or he has fallen to the attraction of engaging in deeper analysis.

Is this book just for the layperson with a horse problem of a legal nature (as well as his or her advisor)? Indeed, is the subject matter best left to the practising lawyer, to be learned and understood ‘on the job’, or is it suitable for university teaching and research? No lesser authority than Justice Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit has said:[10]

[t]he best way to learn the law applicable to specialized endeavours is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on the “Law of the Horse” is doomed to be shallow and to miss unifying principles. Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well. Far better for most students – better, even for those who plan to go into the horse trade – to take courses in property, torts, commercial transactions, and the like, adding to the diet of horse cases, a smattering of transactions in cucumbers, cats, coal, and cribs. Only by putting the law of the horse in the context of broader rules about commercial endeavours could one really understand the law about horses.

Not surprisingly, these comments have attracted the ire of those who research and teach the law of the horse[11] and are calculated to grate with a wider community of scholars in the various fields of activity-organised law such as those identified above. At once appealing, Justice Easterbrook’s assertions are equally problematic. Is company law a course of broader rules about commercial endeavours fit to be studied in its own right or is the student already qualified in principles of contract, legal personality and equity as well as rules of statutory interpretation wasting time on the ‘law of the company’ as a shallow pursuit bereft of unifying principles? The choice of the law of torts to illustrate the judge’s point is curious given the inability of even William Prosser to define the subject area as anything other than ‘a miscellaneous and more or less unconnected group of civil wrongs’[12] bordered by what torts were not, rather than bound by a unifying marker. ‘Traditional’ legal disciplines may, at least in some respects, be regarded as drawn together as much by the arbitrary decisions of scholars of 100 or more years ago as by any inherent or obvious set of principles. In response to Justice Easterbrook, Joan Howland sets out to demonstrate that legal rules pertaining to horse racing are much older and more established than ‘many legal doctrines from more well known, but comparatively younger, legal subjects.’[13]

Justice Easterbrook appears to advocate a ‘top-down’ approach: examine the legal principle as it applies widely in the community in order to understand its application to a particular activity. On the other hand, a ‘bottom-up’ approach through studying a principle’s application to a particular activity may reveal specific flaws that suggest wider defects, or that the principle’s scope is too narrowly or widely drawn or that an exception needs to be recognised. Also, activity-related subjects carry pedagogical advantage by supplying interesting and stimulating contexts in which to explain wider principles, and some activities are just too important in economic or social scale or in their attendant specialised rules to be overlooked by university teachers and researchers. In truth, a mix of both approaches is required, not one to the exclusion of the other.

Mr Pannam largely ignores such debates and it is a little disappointing not to see in a third edition some sustained reflection on whether there have emerged unique approaches or principles in the law of the horse and what lessons the very considerable body of case law and legislation has to offer the wider legal domain. The author is certainly well-placed to express an informed view. Yet, to be fair, this criticism asks for more than the book sets out to achieve.

Even so, by bringing together and analysing a large volume of resources concerning many legal topics affecting the horse, this book provides a most valuable resource for advice as well as teaching and research. Its relaxed and engaging style falls somewhere between the lawyer’s desire for precision and comprehensiveness and the layperson’s need for simplicity. However, it should not be mistaken for a practical legal guide for horse owners such as Vanessa Britton’s, The Horse, Safety and the Law (1994). The Horse and the Law is strong on case law examples, many from the nineteenth century and earlier. This sometimes lends an air of quaintness, but is still thorough, pertinent and useful.


The difficult challenge for a book that deals with an activity rather than a legal discipline is to set appropriate limits because so many aspects of law have some bearing. There are chapters about issues of wide interest to people dealing with horses such as the traditional terms of sale and purchase and questions of liability for harm horses cause. However, the overall impression is of a book slanted towards the racehorse (especially the thoroughbred) rather than those involved with pony clubs or equestrian or general leisure activities. Even with that slant, topics of significant importance to the commercial face of modern horse racing such as broadcasting rights, marketing and sponsorship issues are left largely untouched. Perhaps the most significant criticism that can be levelled at the book is that it fails to address in a meaningful way the legislative reforms made by state and territory governments over the past decade or more with a view to removing controlling power over the racing industry from the Principal Clubs to various government authorities or other bodies which might be described as public/private partnerships. They have had very important consequences not only for the holding of race meetings but also for the disciplinary structures and processes which should provide so much of the content of a work of this nature. A full understanding of these reforms cannot be gleaned without also analysing the relationship between racing and the public interest in the regulation of gambling, something that the book fails to attempt to any substantial degree. Curiously, the book also does not deal with insurance matters relevant to individuals or event organisers in the leisure horse field: something that might have been expected after the difficulty of acquiring public liability insurance was widely reported during the recent ‘insurance crisis’.


The first six chapters relate to title in the horse, including types and acquisition of ownership, forms of bailment, contractual elements of sales and limits on sales such as liens. Chapters 7 to 14 deal with wrongs or torts in various circumstances, although in relation to the stud farm (Chapter 13) the issues go beyond torts. Chapters 15 to 18 concern the racing industry in its decision-making and disciplinary processes, income tax related aspects of the businesses of professional gambling and horse racing and breeding, and restraint of trade.

Chapters 1 and 2 deal with the contractual issues of purchasing a horse by negotiation and auction. This treacherous area for horse owners and would-be owners is also a legal mine-field. Warranties and their breach, particularly ‘soundness’ and ‘free from vice’ which are so commonly claimed by horse vendors, are given detailed consideration.

The difficulties of making the law ‘generally understood’ emerge in Chapter 1. Mr Pannam, a scholar in contract law of some note, deals with its legal complexities and the voluminous case law on contracts of sale of horses in a manner that a lay audience is likely to find rather challenging. This is not a fault that carries through the book, but it does overshadow chapter 1. Firstly, legal principles could be introduced in a simpler and more direct way. For example, the chapter includes consideration of the different consequences of innocent and fraudulent representations and whether or not pre-contractual statements have become terms. A brief summary of the relevant principal concepts located at the chapter’s beginning would have served to guide the lay reader through the ensuing caselaw and legal analysis. Secondly, there is a risk of overwhelming the author’s non-lawyer readership with references to numerous cases, but at the same time he omits elements that might induce interest and understanding. The analysis of Budd v Fairmaner[14] would be more appealing to readers had they been told the crucial facts – the age of the horse mattered to the purchaser who wanted the horse to complete a pair of matching greys. His grey was four years old. The vendor’s horse turned out to be three years old, and horse-wise readers will realise that the misrepresentation exposed the purchaser to the unwelcome prospect that his precious pair of greys would whiten at different times – hence the action.

The concluding Overview to Chapter 1 is a specific and welcome application of the author’s undertaking to make the law ‘generally understood’. His focus in this area is almost exclusively on racehorses. The Trade Practices Act 1974 (Cth) now provides the essential background for most racehorse sales, substantially replacing the common law. Mr Pannam’s guidance to those in the racing industry is functional and clear. On the other hand, he points out that some private sales will fall outside the protective mantle of the legislation and he refers the reader back to the complexity of the old common law and equitable principles. One wonders whether private, individual buyers and sellers such as pony clubbers, polo players, hunters, show jumpers, dressage riders, farmers and those who simply ride for pleasure and may turn to this book for guidance will be much the wiser.

Chapters 3, 4 and 5 concern the rights and liabilities of the parties involved when a horse is in the possession of one who is not the owner. These chapters are well written on the whole and the numerous case law examples give good clear guidance, whether summarised or extracted.

Many horses are subject to some degree of bailment; for instance, agistment, loan to a carer, or when ridden on hire from riding schools. In the case of racehorses, most are subject to bailment all their life, whether a foal on foot with the mare who has gone to a stud for service by a stallion, in training, agisted at a farm for a ‘spell’ from training or racing, or retirement in various forms. The right to hold a horse as security pending payment of such debts as service fees, training fees, agistment fees and veterinary or farrier fees is of great practical value as it is such a common problem in both the leisure horse and racing horse spheres. Be warned that the powers of sale are very limited.

Leases and options in leases to purchase or renew, with particular relevance to racehorses, are covered in these chapters, as are the common ways of ending such contracts by forfeiture and frustration. This section may be rather tortuous for the non-lawyer; perhaps this was one point that Mr Pannam had in mind when quoting the adage in his Preface: ‘Any man who has himself for his lawyer has a fool for a client.’

Chapter 6 explains the ways of acquiring ownership. Some are straightforward, such as transfer by sale, gift or disposition in a will. However horse ownership is often a matter of complex and conflicting personal understandings; even if the legal principles are theoretically comprehensible, the beliefs and emotions of horse owners, especially in the world of racing often lead to disputes. Mr Pannam probes this area with a practical eye. For example, he addresses the legal problems which arise when conditions are put on the future use of a horse when it is sold or given away, or when one co-owner transfers their interest. However, he does not address, other than a cursory mention, ownership by way of a company or syndicates.

Chapter 7 considers competently the issue of liability for harm caused by horses. It covers the actions in cattle trespass, scienter, negligence (including occupier’s liability although it is dealt with under a separate heading) and nuisance.

Chapter 8 takes the issue of liability further by viewing it in the context of the sporting spectacle. Here the author considers the safety of spectators at the hands of both the event organiser and the competitor in the event, whether a jockey or other type of rider. The safety responsibilities of competitors, event organisers and officials and controlling authorities towards competitors are also examined. In this chapter some oversights and irritating minor errors emerge. In recent years, much has been decided by courts, written by commentators and done legislatively in relation to personal responsibility for risk-taking. Yet there is little to so suggest in this chapter. In Agar v Hyde,[15] the High Court delivered its most significant judgment on the issue of risk-taking by those who participate in sporting activities and the court’s ruling is of considerable importance in determining the extent of responsibility for the safety of jockeys, riders and sulky drivers who participate in all manner of horse competitions. Yet this judgment receives passing mention in one footnote with nothing to suggest its importance. Similarly there is nothing on legislative reforms to tort law and, in particular, changes to consumer protection legislation that permit contracting out of responsibilities for due care and skill in the contractual supply of services such as trail rides and similar horse-related activities.[16] Not surprisingly, the author draws heavily on case law from human sports to illustrate his argument. Some aficionados will find it inexcusable that the leading English case on liability in negligence between participants[17] is identified as about rugby when in fact it concerned the ‘world game’, soccer.

The chapters dealing with cars, road transport, dogs, and vets are concise and clear. They have application to horses both in the racing and leisure spheres. The matters covered are broad. In Chapter 9, the national uniform Australian Road Rules, which are incorporated into each state jurisdiction so as to become law, are analysed. Escaping horses and liability for resulting damage is also covered in this chapter. In Chapter 11, some alarming instances of dogs biting or ‘worrying’ a horse are cited.

Chapter 13 concerns matters at stud. The perennial problems associated with service fees, free returns and live foal guarantees are discussed. There is no apparent case law on this topic, but Mr Pannam’s hypotheticals and opinions lend weight to the discussion. Some aspects of the Stud Book are dealt with here, and again in Chapter 16, although given the ‘recent and dramatic changes’[18] it could have warranted greater commentary.

Chapter 14 discusses the amount of damages when a legal wrong has occurred, which is always interesting as it gets to the nitty-gritty of ‘how much’. The value of a horse is more contentious in racehorses because of their greater market value generally speaking, but Mr Pannam argues from general principles that emotional values could be awarded by the courts if necessary. The chapter also brings into relief the principles of damages assessment that a horse’s market value will not consider future lost winnings if the horse is killed or permanently injured, but the loss of a chance to win a prize or win by betting on the horse is assessable if the damage is only temporary.

Chapter 15 concerns decisions on race placings and protests, in particular, the extent to which they may be subject to judicial review. This short chapter has been expanded significantly to deal with recent authorities from Ireland and New South Wales. At a time when sports administrators generally bemoan the law’s increasing ‘interference’, Mr Pannam adds a principled dimension to their viewpoint on one front. He comes out strongly in support of retaining the approach of older authorities which left the decisions of race judges free of judicial review and in doing so makes a stinging criticism of a recent decision from New South Wales which suggests otherwise.

An important addition to the book comes in Chapter 16 dealing with the doctrine of restraint of trade. Better known in sporting circles as a means for footballers of various codes to challenge transfer rules, restraint of trade may also be used to break down unreasonable barriers to entry into the various arms of the horse racing and training professions. The most notable example in horse racing is the English case of Nagle v Feilden[19] where the Court of Appeal decided against a policy of the Jockey Club that women were not to be granted trainer’s licences. However, the author does not confine his analysis to such occupational matters but postulates the application of the doctrine to various controls on breeding imposed via the Stud Book and certain industry incentive schemes that smack of collusive practice.

Chapter 17 concerns disciplinary processes and judicial review. It is easily the largest chapter of the book and is fittingly entitled ‘On the Carpet’. Although widely used outside the world of horse racing, Mr Pannam explains that this term (together with ‘carpeted’) originates from the practice over several hundred years at the Newmarket July course for jockeys and others to stand before the stewards on a beautiful Persian carpet. This is a chapter that many involved with disciplinary tribunals in other contexts (especially sport) will find most useful. The analysis crosses the familiar territory of the requirements of procedural fairness (natural justice) including legal representation, the rule against bias and the effect of appeals. Racing cases have made a most significant contribution to the development and exposition of principle in regard to judicial review of the decisions of domestic tribunals. Stewards inquiries in particular have a special status in that decisions must be made very quickly with rather abbreviated notions of natural justice. A welcome improvement to the chapter and an aid to understanding would be the addition of a description (even some charts) of the various disciplinary structures across the nation ranging from stewards’ inquiries up through racing appeals tribunals to judicial review.

The title of Chapter 18, ‘Profits and Losses’, does not provide an immediate indication of its contents which are limited to income tax related aspects of the businesses of professional gambling and horse racing and breeding.

Mr Pannam’s love of the subject shines through the book; in the concluding chapter, Chapter 19, he bursts into song reproducing among other things Peter Porter’s wonderful poem Phar Lap in the Melbourne Museum.


This book is a valuable and, in many respects, scholarly work. The third edition entails a substantial revision and improvement of the second. The presentation is superior – from the cover design and photo through to the crisp white pages. The font, spacing and clearly distinguishable quotes make the third edition so much easier to digest than its predecessors. There is now some numbering of paragraphs which assists the division of topics and cross-referencing, although at times the division seems arbitrary and at other times the full benefit is not realised as sub-headings are unevenly used. For instance, Chapter 5 has lots of sub-headings with most paragraphs numbered and headed. Chapter 6 has no sub-headings, but paragraph numbering is there – headings such as ‘ownership of newborn foal’, ‘ownership by acquisition’, ‘importance of proof of ownership’, ‘gifts’, ‘partnerships’, ‘co-owners’, ‘companies and trusts’, and ‘syndicates’ could have been used. Chapters 9 and 13 would also have benefited greatly from sub-headings.

In the Preface, Mr Pannam expresses his intention to make the book accessible to laypersons: ‘I hope that a non-lawyer reading this book with a particular problem in mind may be able to identify the general principles of law relevant to its solution.’[20] There are a few instances of unexplained legal terms which could confuse such a reader and, with his purpose in mind, it is suggested that some explanatory footnoting would help. Some examples are ‘possession pro tem’, ‘infants’, ‘relief against forfeiture’ and ‘estoppel’.[21]

A glossary of terms would assist lawyers understand the ancient customs and language of the horse world. There are many such terms; for example, ‘barren’, ‘premier yearling sale’, ‘rising’, ‘show hack’, ‘soundness’, ‘vice’, ‘windsucker’ and ‘wobbler’. However, a number are indexed and useful definitions often appear as the terms arise.

Mr Pannam actively engages with his material. He is not averse to giving his opinion on the state of the law if he thinks it requires improvement. This is refreshing and adds interest. This book is a useful guide for the lawyer and others dealing with many horse-related matters, written with a bit of love and even joy. You can bet on it.

[*] BVSc, LLB (Hons) (Melb); Solicitor, Melbourne.

[**] B.Com, LLB (Hons) (Melb), LLM (Tor); Senior Lecturer, Faculty of Law, The University of Melbourne.

[1] Clifford Pannam, The Horse and the Law (3rd ed, 2004) 137.

[2] Ibid vii.

[3] See, eg, Steven Wise, Rattling the Cage: Toward Legal Rights for Animals (2000).

[4] Pannam, above n 1, vii.

[5] Ibid.

[6] Eg, Eugénie Buckley, Sports Law: Name and Image (1998); Braedon Clark and Leslie Miller, Taxation and Sport in Australia (2000) and Antonio Buti and Saul Fridman, Drugs, Sport and the Law (2001).

[7] Eg, Simon Inglis, Soccer in the Dock: A History of British Football Scandals, 1900-1965 (1985); John Scott, Caught in Court: A Selection of Cases With Cricketing Connections (1989); Simon Payne, Medico-Legal Hazards of Rugby Union (1992); David Fraser, ‘The Man in White is Always Right’: Cricket and the Law (1993); Roger Abrams, Legal Bases: Baseball and the Law (1998); Craig Brown, ‘Golf and the Law: More than Errant Golf Balls’ [1998] OtaLawRw 12; (1998) 9 Otago Law Review 373; Steve Greenfield and Guy Osborn, Regulating Football: Commodification, Consumption and the Law (2001).

[8] Eg, Ettie Ward (ed), Courting the Yankees: Legal Essays on the Bronx Bombers (2003).

[9] Pannam, above n 1, viii.

[10] Frank Easterbrook, ‘Cyberspace and the Law of the Horse’ (1996) 11 University of Chicago Legal Forum 207, 207-8.

[11] See, eg, Joan Howland, ‘Let’s Not “Spit the Bit” in Defense of “The Law of the Horse”: The Historical and Legal Development of American Thoroughbred Racing’ (2004) 14 Marquette Sports Law Review 473.

[12] William Prosser, Handbook of the Law of Torts (2nd ed, 1955) 1.

[13] Howland, above n 11, 475.

[14] [1831] EngR 874; (1831) 8 Bing 48; 131 ER 318.

[15] [2000] HCA 41; (2000) 201 CLR 552.

[16] See Joachim Dietrich, ‘Liability for Personal Injuries Arising From Recreational Services: The Interaction of Contract, Tort, State Legislation and the Trade Practices Act and the Resultant Mess’ (2003) 11 Torts Law Journal 244.

[17] Condon v Basi [1985] EWCA Civ 12; [1985] 2 All ER 453 (CA) – mentioned at page 150.

[18] Pannam, above n 1, 186.

[19] [1966] 2 QB 633.

[20] Pannam, above n 1, viii.

[21] Ibid 53, 74-5, 79 and 98 respectively.

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