On 26th and 27th July 2012, the Disciplinary Panel conducted an enquiry into allegations that the licensed trainer Michael Chapman was in breach of Rules (C)22, (C)27 and (C)28 of the Rules of Racing in relation to his handling of DARK OASIS between April and September 2010.
As has been previously publicised, the Panel found Chapman not in breach of the above named Rules. The following details the reasons for their decision.
1. Those Rules set out a trainer’s basic obligations towards his owners and the horses in his care. The parts of the Rules relied upon by the BHA and material for this enquiry were these:-
22. Duties of care and skill
22.1 A Trainer must conduct his business of training racehorses
22.1.1 with reasonable care and skill, and
22.1.2 with due regard to
18.104.22.168 the interests of owners of horses under his care or control
27. Duty to promote welfare of horses
27. A Trainer must take all reasonable steps to ensure the safety and welfare of all horses under his care or control (whether or not they are currently in training).
28. Veterinary treatment and medication
28.1 A Trainer must ensure that all treatments and medication administered to a horse under his care or control are given in the interests of its best health and welfare.
28.2 Accordingly :-
28.2.1 every treatment must be fully justifiable by the medical condition of the horse receiving the treatment,
28.2.2 horses that are not trainable as a result of injury or disease must be given appropriate veterinary treatment before training is resumed, and
28.2.3 the Trainer must obtain advice from the Veterinary Surgeon prescribing a treatment as to the appropriate level of training during the duration of the treatment.
2. The BHA’s case, which was presented by Rick Liddell, was that Chapman had failed to follow his vet’s advice about caring for DARK OASIS in the aftermath of a tendon injury sustained while racing at Ascot on 18th April 2010. The gelding was removed from his care on 21st September 2010 on the instructions of the owner, Frank Michael, and transferred to Karen George’s yard in Devon. On arrival there, it was observed to have a new and pronounced tendon injury on the same leg as had been injured at Ascot. The BHA did not suggest that Chapman’s training regime for DARK OASIS up until the time it left him had actually caused the condition found at Karen George’s yard. The case made was that Chapman was in breach because of his failure to adhere to his vet’s recommendations.
3. On behalf of Chapman, who was represented by Roderick Moore (instructed by Dawn Bacchus of the NTF), it was disputed that his vet had given any treatment advice which had not been followed. The gelding was said to have recovered satisfactorily from the Ascot injury and to have been gradually returned to training without anything untoward happening to it prior to the transfer to George’s yard.
4. DARK OASIS was a 4 year old gelding at the time of the events in question. Chapman had claimed it from a Ripon seller in May 2009 and sold it on a month later to Frank Michael, a farmer in Devon, who answered an ad in the Racing Post. This was Mr Michael’s first solely owned horse. He had long had a keen interest in racing and had had previous involvement in ownership through syndicates. He bought DARK OASIS in the hope that it might one day provide a riding opportunity for his son Luke who had ambitions to become a jockey.
5. The training agreement provided for Mr Michael to pay at half rate until the gelding won a race, which it did on its second outing over hurdles. Thereafter he was required to pay at the full monthly rate while it was with Chapman, whether the horse was in full training or on the easy list while recovering from injury or illness.
The injury and its treatment
6. In its race at Ascot on 18th April 2010, the gelding suffered an over-reach, thereby injuring its off fore. The Veterinary Officer on duty inspected the injury in the unsaddling area and the report reads –
“Laceration/Wound tendon area, no tendon involvement, Right Fore, short term, Not Lame, Clearance not required”
The wound was stapled at the course and (as the Ascot vet’s report indicates) the gelding was able to travel straight away back to Chapman’s yard at Market Rasen. Chapman and Mr Michael were both present at the course and aware of what was done and of the Ascot vet’s observations.
7. The next day Chapman arranged for his vet of 4 years or so, Allan Heath, to see the gelding. He prescribed both antibiotics and bute. Further visits to see the gelding were made on 22nd and 29th April. On the last of these the staples were removed. But there was substantial dispute between Chapman and his assistant Steve Petch on the one hand and Mr Heath on the other about what findings the vet made and communicated to them. Mr Heath said that DARK OASIS was very lame, that he prescribed 3 weeks box rest and that he required a scan to be done in 3 months time because there was in his view a tendon injury. Chapman and Petch, however, were adamant that the gelding was not lame and that Heath did not state a requirement for box rest or for a future scan.
8. From 29th April, the gelding made gradual but slow progress in its recovery. Chapman came to realise, he said, that there had in fact been some tendon damage (contrary to what he and the vet at Ascot had originally thought), because of the slowness of the gelding’s recovery. While not showing signs of lameness, the swelling and heat in the region of the wound persisted longer than the wound itself could account for. Chapman gradually introduced walking in hand exercise for DARK OASIS, and later ridden exercise at walk and later still trot work, having judged that the gelding’s injured leg was hard and cold before this regime began.
9. In the meantime, Mr Michael became impatient about what he perceived as lack of progress in getting the horse back to the racecourse given that he had been told at an early stage that the injury was superficial. He had been told at some later point by Chapman that the tendon had been bruised and that there was a thickening of it, but his dissatisfaction grew. He spoke about it with Karen George (with whom he had recently acquired a horse) and she suggested that he arrange for a scan of the injured leg. Mr Michael followed this advice and asked Chapman to have a scan done. Chapman called in Mr Heath to get him to do it.
10. On 27th July Mr Heath came to Chapman’s yard and carried out a scan on the injured leg. There was again fundamental disagreement about what was said. Mr Heath agreed that he expressed “delight with the way the leg was healing”, but said he was surprised to hear that the gelding had begun trotting exercise. According to Mr Heath, the scan revealed a diffused lesion, and he advised Chapman to continue with walking and trotting exercise until the gelding could be rescanned and re-assessed in 6-12 weeks time. Chapman and Petch had a very different version. They recalled being told after the scan (which they did not see) that the news was good, and that they could carry on with work for the gelding. Both of them said that Mr Heath told them that they could “crack on”.
11. DARK OASIS then began a programme of graded exercise. It was trotted during some days in August 2010, moving towards occasional cantering. By September, the gelding was being cantered on most days, moving to stronger work as the month wore on. Among the riders of this work was Luke Michael, the owner’s son. He was the exercise rider on two occasions. The first was towards the end of August, when he described the gelding as being well and sound. He noticed a slight thickening of the tendon on a foreleg when washing the gelding down after exercise, but described this as “nothing untoward or to cause concern”. He rode work consisting only of cantering again on 17th September 2010, and again he had no concerns about the gelding’s welfare either during or after exercise, when he washed it down. Throughout this period, it was the habit of Chapman and Petch to check the legs of horses in their care on a daily basis. DARK OASIS was of course one of those checked regularly, and there was no challenge by the BHA to their evidence that the injured foreleg of the gelding was at all times cold and hard. The Panel too accepted their evidence on this.
12. DARK OASIS had been entered for an amateur race at Beverley on 21st September, with the intention that this would provide Luke Michael with his first ride as a licence holder. However, it was balloted out. Chapman had offered to let Luke ride another of his horses, ORPEN WIDE, in the same race. In the event he did not declare ORPEN WIDE, but switched him to another engagement for professionals at Stratford. In doing this, Chapman was probably motivated by his concern for horse and rider. Luke Michael had ridden work on him on 17th September, the same day as he had ridden work on DARK OASIS, and ORPEN WIDE had run away with him. But so far as Luke and Frank Michael were concerned, the switch of engagement for ORPEN WIDE was unexplained. This angered Frank Michael, who promptly notified Chapman that he was removing DARK OASIS from him. Arrangements were then made for its transfer to Karen George.
13. On 21st September, DARK OASIS was collected from Chapman’s yard by a driver who regularly worked for him, Rupert Worrell. Petch walked the gelding a distance of about 100 yards to the horse box, and neither he nor Worrell noticed any signs of lameness or anything else untoward. Worrell drove the horse box to a service station on the A1 near Doncaster, where the gelding was moved into another box to complete the journey to Karen George’s yard in Devon. The driver of this second horsebox, Les Bloomfield, said that the gelding was not lame at the time of the transfer but that he noticed an enlarged tendon on the right fore. Upon arrival in Devon, Karen George’s head lass walked the gelding into the stable, and reported that there was no lameness. But later that day, Karen George went to look at her new charge and saw what she called a “banana leg – a massively bowed tendon”. She reported this promptly to Frank Michael who came to see the gelding and was distressed by what he saw. She also called in her vet, James Bosley. He described in his report that there was –
“…a swelling over the tendons (palmar aspect) of the right forelimb, mid to lower cannon. Palpation revealed heat, and pain to digital pressure especially when applied to the superficial digital flexure tendon”.
His ultrasound examination confirmed the existence of both a new active injury and an older injury, possibly 4 to 6 months old.
14. Mr Michael spoke a few days later with Mr Heath, and felt moved to write a letter of complaint to the BHA about Chapman’s conduct. Thereafter, the BHA carried out extensive enquiries of its own into this matter, which eventually led to the hearing before this Panel.
The Panel’s decisions on the important factual disputes
15. Most of the history related above was more or less uncontroversial. However, two basic areas of disagreement on the facts were apparent. The first concerned the nature of Mr Heath’s diagnosis and recommended treatment in April 2010. The second concerned the events surrounding Mr Heath’s visit to carry out a scan on 27th July 2010.
16. The Panel concluded that, despite confusions in the evidence presented by both rival camps, the Chapman/Petch version was to be preferred. Mr Heath declined to come to give evidence in person, explaining that he could not face the journey to London because of the emotional stress resulting from his wife’s death last year. Having heard him explain this, the Panel recognised that his reasons were entirely genuine. On behalf of Chapman, it was argued that the Panel should decline to hear Mr Heath’s evidence by telephone, but this application was refused. While the attendance of an important witness is to be preferred to telephone questioning, in this case Mr Heath’s evidence was given clearly and coherently and there was only a limited disadvantage resulting from not being able to see him in the flesh. But his (entirely genuine) reason for not attending did lead the Panel to a cautious approach to his testimony because it was apparent that at the time of the events of 2010 he was suffering the emotional stresses brought about by his wife’s serious illness at that time, and it became apparent that this impaired the accuracy of his recall of events.
17. Specifically, the Panel was persuaded that Mr Heath did not tell Chapman in April 2010 that the gelding required 3 weeks of box rest and a scan of the injured leg in 3 month’s time. There is no mention of this in his practice notes, which were produced only on the day that the enquiry started. These notes had been requested by the BHA (and by Chapman’s solicitor) on more than one occasion before the hearing but were not forthcoming. Mr Heath said this arose from his secretary’s confusion. But it seemed to the Panel that he might well have had them available at an earlier stage because his first statement to the BHA of October 2010 appears to quote from them. At all events, the Panel accepted that the notes were genuine and that their non-production till so late in the day was because of confusion, not calculation. But they are an uncertain guide to what Mr Heath actually said to Chapman. If box rest had been advised, there is no doubt Chapman and Petch would have questioned whether this was suitable given the temperament of this gelding. The difference in the evidence about whether the gelding was lame remains surprising. Mr Heath’s practice notes, which he confirmed to be accurate, described DARK OASIS as “very lame” when examined in April. Chapman and Petch, however, said that there were no signs of lameness at all. It seems clear that the gelding was not lame when examined at Ascot, but that of course does not mean that lameness cannot have developed thereafter. Mr Heath did not ask for the gelding to be walked up when he examined it, saying that he was able to observe the lameness in its box without the need for that to be done. There is simply no reason for Chapman and Petch to deny lameness if that existed at this time, and they had much more time and opportunity to observe the gelding. Their account was preferred.
18. Another reason for doubting the reliability of Mr Heath’s recall of what he advised Chapman is found in the differences in the two statements he signed in October 2010 and May 2011 after interviews with the BHA. For instance, in the first of these he referred to suspecting a tendon injury when he examined the gelding in April 2010; by the time of his later statement he refers to the tendon injury as fact. Those two statements generally paint very different pictures of what he saw and diagnosed.
19. The position over the 27th July visit was more puzzling. His practice notes (written later that day, he said) do record that he found a “diffuse leasion” (sic), and also record the need for a re-scan in 6-12 weeks. But the print-out of the scan was not available: Mr Heath could not say what had happened to it. Crucially he did recall telling Chapman that the exercise regime up to 27th July had improved the gelding and that they (ie Chapman and Petch) had done a good job, though he privately felt that it was contrary to what he had recommended back in April. The Panel felt that he probably did tell them to “crack on”, perhaps meaning to continue with the existing regime, and that they reasonably understood this to mean that they could progress to stronger work as their judgement of the gelding’s condition allowed. Mr Heath’s recall of events generally was not felt to be reliable, though he gave his evidence with complete honesty. For instance, he expressed surprise about the extent of the bute administration recorded in Chapman’s medicines book, but one can see from his invoice to Mr Michael that he had himself prescribed the amount they used. It was also noted that Mr Heath admitted he made no inquiry about DARK OASIS’s progress when visiting the yard on occasions in August and September, which he would probably have done if he had previously told Chapman that a further assessment and scan was needed.
20. So the Panel concluded, as a matter of fact, that Chapman had not failed to follow his vet’s advice either in April or July 2010. This view was reinforced by the impression gained of both Chapman and Petch. Both were experienced men. Petch had trained on his own account in New Jersey before returning to England and taking a job with Chapman. Chapman himself had considerable skills in treating and rehabilitating injured horses, but he was not in any sense arrogant about his abilities or pre-disposed to ignore veterinary advice. He may have been less inclined than many trainers to call in veterinary help, but had no reason to disregard it. He had no financial incentive to keep his vet at arm’s length: all bills were met directly by owners without Chapman having any liability.
Breach of the Rules
21. In the light of those conclusions about the facts, the Panel concluded that the BHA’s case that Chapman had acted contrary to veterinary advice failed, and that no breach of any of Rules (C)22, (C)27 and (C)28 was proved.
22. But it is important to record that even if the Panel had decided that Chapman had not followed Mr Heath’s recommendations, that would not of itself have established breach. The Rules do not require that a trainer follows a vet’s advice, but that he should treat horses in his care with appropriate skill and regard for their welfare. To demonstrate a breach of the Rules, it is necessary for the BHA to show that the course actually followed by a trainer fell short of that standard. Yet the BHA did not attempt to show that. They accepted that they could not show that the new tendon injury found when DARK OASIS reached Karen George’s yard was caused by Chapman. And they did not advance any evidence to show that DARK OASIS was placed at risk by Chapman’s actions, endangering its welfare even though the new tendon injury was not Chapman’s responsibility. Ordinarily, one would expect to have some expert veterinary evidence of such a risk, especially in a case where (as here) it is not said that an injury actually resulted from taking improper risks.
23. Finally it is necessary to deal with the discrete case that Chapman failed to act in accordance with his Rule (C)22 obligation to pay due regard to the interests of Mr Michael the owner. So far as the welfare aspects of this allegation are concerned, they are covered by the findings and reasons already given. So far as it was said that Chapman failed to keep Mr Michael fully and accurately informed of DARK OASIS’s progress after the Ascot injury, the Panel again found there was no breach. Chapman and Mr Michael spoke regularly by telephone and met fairly regularly at racecourses. It is likely that Chapman was over optimistic in the way he described progress in the early days following the over-reach, but that is a hindsight criticism. Mr Michael was told in due course that the gelding had a bruised and thickened tendon, and his son came to the yard to ride work in August and September. Chapman had no reason to mislead Mr Michael, and given the findings about Chapman’s dealings with Mr Heath, there is nothing in the allegation that he was concealing from Mr Michael what the vet had told him.
24. The Panel did however readily understand why Mr Michael was so upset with Chapman when the gelding arrived with a serious injury at Karen George’s yard. His suspicions were increased when he spoke soon afterwards with Mr Heath. But for reasons explained above, after a detailed hearing and consideration of all the evidence, this Panel has concluded that those suspicions were misplaced.