Negligence in Sport Part 1 PDF

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17/11/17 Week 7

SEMINAR 7 Negligence (1) Preparation: re-read the power-point and the notes attached to the slides. Part A Read the following extract from the case of Condon v Basi [1985] 1 WLR

SIR JOHN DONALDSON M.R. This is an appeal from a decision of Judge Wootton in the Warwick County Court given in March 1984. It arose out of a football match played on a Sunday between Whittle Wanderers and Khalsa Football Club. They are both clubs in the Leamington local league. The plaintiff was playing for Whittle Wanderers and the defendant for the Khalsa Football Club. Most unfortunately, during the game the defendant tackled the plaintiff in such a manner as to lead to the plaintiff breaking his leg. The judge in the county court found that he had been negligent, and awarded a sum of £4,900 in damages. It is said that there is no authority as to what is the standard of care which governs the conduct of players in competitive sports generally and, above all, in a competitive sport whose rules and general background contemplate that there will be physical contact between the players, but that appears to be the position. This is somewhat surprising, but appears to be correct. For my part I would completely accept the decision of the High Court of Australia in Rootes v. Shelton [1968] A.L.R. 33 . I think it suffices, in order to see the law which has to be applied, to quote briefly from the judgment of Barwick C.J. and from the judgment of Kitto J. Barwick C.J. said, at p. 34: “By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent must necessarily depend in each case upon its own circumstances. In this connection, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.” Kitto J. said, at p. 37: “in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury. That does not necessarily mean the compliance of that conduct with *868 the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organized affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the ‘rules of the game.’ Noncompliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.” I have cited from those two judgments because they show two different approaches which, as I see it, produce precisely the same result. One is to take a more generalised duty of care and to modify it on the basis that the participants in the sport or pastime

17/11/17 Week 7 Impliedly consent to taking risks which otherwise would be a breach of the duty of care. That seems to be the approach of Barwick C.J. The other is exemplified by the judgment of Kitto J., where he is saying, in effect, that there is a general standard of care, namely the Lord Atkin approach in Donoghue v. Stevenson [1932] A.C. 562 that You are under a duty to take all reasonable care taking account of the circumstances in which You are placed, which, in a game of football, are quite different from those which affect you when you are going for a walk in the countryside. For my part I would prefer the approach of Kitto J., but I do not think it makes the slightest difference in the end if it is found by the tribunal of fact that the defendant failed to exercise that degree of care which was appropriate in all the circumstances, or that he acted in a way to which the plaintiff cannot be expected to have consented. In either event, there is liability. Having set out the test — which is the test which I think was applied by the judge in the county court — I ought to turn briefly to the facts, adding before I do so that it was submitted by Mr. Lee on behalf of the defendant that the standard of care was subjective to the defendant and not objective, and if he was a wholly incompetent football player, he could do things without risk of liability which a competent football player could not do. For my part I reject that submission. The standard is objective, but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a local league football match. But none of these sophistications arise in this case, as is at once apparent when one looks at the facts. I can most conveniently deal with the matter by quoting from the report of the very experienced Class 1 referee, who officiated on this occasion. He said: “After 62 minutes of play of the above game, a player from Whittle Wanderers received possession of the ball some 15 yards inside Khalsa Football Club's half of the field of play. This Whittle Wanderers' player upon realising that he was about to be challenged for the ball by an opponent pushed the ball way. As he did so, the opponent [the defendant] challenged, by sliding in from a distance of about three to four yards. The slide tackle came late, and was made in a reckless and dangerous manner, by lunging with his boot studs showing about a foot-18 inches from the ground. The result of this tackle was that [the plaintiff] sustained a broken right leg. In my opinion, the tackle constituted serious foul play and I sent [the defendant] from the field of play.” Then he said where he was positioned. The referee gave evidence before the judge in the county court. He was cross-examined; and, in the event, the judge wholly accepted his evidence, subject to a modification in that he thought the defendant's foot was probably 9 inches off the ground. The judge said that he entirely accepted the “value judgments” of the referee. He said: “[The tackle] was made in a reckless and dangerous manner not with malicious intent towards the plaintiff but in an ‘excitable manner without thought of the consequences.’” The judge's final conclusion is to be found in paragraph 13 of his judgment: “It is not for me in this court to attempt to define exhaustively the duty of care between players in a soccer football game. Nor, in my judgment, is there any need because there was here such an obvious breach of the defendant's duty of care towards the plaintiff. He was clearly guilty, as I find the facts, of serious and dangerous foul play which showed a reckless disregard of the plaintiff's safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game.” For my part I cannot see how that conclusion can be faulted on its facts, and on the law I do not see how it can possibly be said that the defendant was not negligent. Accordingly I would dismiss the appeal.

17/11/17 Week 7 Question 1 From your careful reading of Condon v Basi consider the Court’s judgment in that case, what are the two different approaches to negligence adopted? Which do you prefer and why? Does it make any difference which of these is followed? Condon v Basi – county court D tackled plaintiff which led to breaking his leg (found negligent and damages of £4900 was awarded No authority as to what the standard of care was that governs the conduct of players in competitive sports Engaging in sports participants somewhat accept the risks in that sport. The two different approaches in Condon v Basi were: (more generalised duty of care as to participants impliedly consenting to the risks. i.

ii.

High Court of Australia in (Rootes v Shelton) “accept risks within that sport however the tribunal can make its own assessment as to what the accepted risks would be. Each case is dependant on its circumstances.

More exemplified of Kitto, that there is a general standard of care Lord Atkin (Donoghue v Stevenson) – “The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who is my neighbour?" receives a restricted reply. You must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." Under a duty to take all reasonable steps/ care taking circumstanced into account, such as going for a walk in the countryside is very different to that of a football match.

Part B Read the following extract from Caldwell v Maguire and Fitzgerald [2001] EWCA Civ. 1054. Caldwell is probably the leading case on the Court’s approach to negligence in the sporting arena. Read it carefully. Lord Chief Justice: 1 I will ask Tuckey L.J. to give the first judgment. Lord Justice Tuckey: 2 On September 30, 1994, the appellant, Peter Caldwell, who was then a professional jockey, was seriously injured whilst riding in a two-mile novice hurdle race at Hexham. Holland J. [sitting in the High Court] dismissed his claim for personal injuries against the two respondents who are also professional jockeys and were riding in the same race. 3 It was common ground that participants in competitive sport owe one another a duty of care. The appellant's complaint is that the judge set the standard of care too low; that he effectively required proof of deliberate or reckless disregard for safety. If he had applied the correct standard, in any event, he would or should have found that the respondents were negligent. 4 The accident involved four horses: Fion Corn, ridden by the appellant; Master Hyde, ridden by the first respondent, Adrian Maguire; Mr. Bean, ridden by the second respondent, Mick Fitzgerald; and Royal Citizen, ridden by Derek Byrne. Royal Citizen on the inside, Mr. Bean on his right, and Master Hyde on the outside, jumped the second last hurdle of the race together. However, after the jump and as the three horses approached a left-hand bend about 100 yards up the course, Mr.

17/11/17 Week 7 Bean and Master Hyde pulled three-quarters of a length ahead of Royal Citizen on their inside and took a line which left no room for Royal Citizen on the bend. What happened next is described by the judge as follows: “It is clear that Mr. Byrne left the second last determined to do as before, that is to ride Royal Citizen so as to make up ground lost by slow jumping—and thus retain a position on the inside of Mr. Bean. Hence he urged his mount forward between the rail on his near side and Mr. Bean, aiming to make up the three-quarter length deficit. He was conscious that this gap was closing with the effect of the second defendant's line being compounded by the alignment of the rail and he shouted a warning that was in the event, as I find, unheard. His persistence in the heat of the race was maintained; that of Royal Citizen was not. The horse shied from the closing gap and ‘jinked’ to the right away from the gap and rail, veering across the course behind Mr. Bean. This manoeuvre unseated his jockey (who suffered bruising) and served to obstruct and bring down the close following Fion Corn so that the claimant went to the ground sustaining far more serious injury.”

5 Following the race there was a steward’s inquiry at which the respondents were found guilty of careless riding “in that they had not left enough room for Byrne to come round the inside rail”. They were each suspended for three days.

10 Two distinguished experts, John Francome and Carl Llewellyn, gave evidence at the trial. They agreed with the finding of the stewards because they thought that the respondents should not have taken the inside line unless and until they were one length clear of Royal Citizen. Both should have looked to their left to ensure that Royal Citizen was no longer in contention. 11 As to the law, the judge [Holland J.] said that the “primary guidance” for him must come from the Court of Appeal. He noted that this court had never had to consider an entirely similar situation, but had considered analogous situations in five cases, which he reviewed. From these cases he extracted five propositions: “[1] Each contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants. [2] That duty is to exercise in the course of the contest all care that is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury to such fellow contestants. [3] The prevailing circumstances are all such properly attendant upon the contest and include its object, the demands inevitably made upon its contestants, its inherent dangers (if any), its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant. Thus in the particular case of a horse race the prevailing circumstances will include the contestant's obligation to ride a horse over a given course competing with the remaining contestants for the best possible placing, if not for a win. Such must further include the Rules of Racing and the standards, skills and judgment of a professional jockey, all as expected by fellow contestants. [4] Given the nature of such prevailing circumstances the threshold for liability is in practice inevitably high; the proof of a breach of duty will not flow from proof of no more than an error of judgment or from mere proof of a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race. Such are no more than incidents inherent in the nature of the sport. [5] In practice it may therefore be difficult to prove any such breach of duty absent proof of conduct that in point of fact amounts to reckless disregard for the fellow contestant's safety. I emphasize the distinction between the expression of legal principle and the practicalities of the evidential burden.”

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12 The judge then expressed his conclusions as follows: “Each defendant was guilty of lapses of care in their riding of their respective mounts away from the second last hurdle so as to contribute to the premature curtailment of the inside line otherwise to be followed by Royal Citizen—and thus so as to contribute to the Claimant's accident …. However, in neither instance was the lack of care, when evaluated in the circumstances prevailing in this horse race, of sufficient magnitude to constitute a breach of the duty of care respectively owed to the Claimant, that is to surmount the threshold for liability. Left entirely to myself, that is unaided by experts, I would have found it difficult clearly to identify lack of care on the part of the first defendant (should he have been concerned with the position beyond the horse on his immediate left?), and the more clear cut failure on the part of the Second Defendant to take account of the position of Royal Citizen is to me (still as a layman) difficult to distinguish in terms of blameworthiness from the failure of Mr. Byrne correctly to assess the situation in front of him—a failure exposed in any event by the behaviour of his horse. As I would evaluate the situation, all three jockeys were guilty of lapses of errors that must be an inevitable concomitant of adrenalin fuelled high speed racing with victory still a prospect. Turn back to the experts: in my judgment they did nothing to disabuse me of such evaluation of the significance of the identified lack of care. With varying degrees of emphasis they left me in no doubt but that this incident reflected the cut and thrust of serious horse racing; in theory, avoidable but in daily practice something that is bound to occur from time to time, no matter how generally careful is the standard of riding. The statistics underline this view—and Mr. Llewellyn is arguably right in suggesting that the video recording shows a similar potential incident earlier in the very same race and concerning other horses, with injury avoided because the jockey trying to retain the inside line preferred discretion to valour at that stage of the race. We are a long way from the sort of conduct that triggers a response from the Courts as well as from the stewards.”

13 Lord Brennan Q.C. for the appellant accepts the first three of the judge's propositions of law, but says that the last two are unduly restrictive and not supported by the Court of Appeal authorities, which the judge considered. 14 The first of the most directly relevant of these is Condon v. Basi [1985] 1 W.L.R. 866 , where a footballer sued an opponent who broke his leg with a foul tackle. Sir John Donaldson M.R., with whom the other two members of the court agreed, accepted the statements of law made in the Australian case of Rootes v. Shelton [1968] A.L.R. 33 . In that case a water-skier sued the driver of his boat who caused him to collide with another boat in the course of a water ski-ing display. Barwick C.J. said at page 34: “By engaging … [The Court of Appeal then discusses Condon and Basi which you have already looked at and then a significant number of cases which are rather confusing. We can sidestep these without losing the thread of the argument] 22………., I turn to Lord Brennan's criticism of Holland J.'s fourth and fifth propositions. He submits that no practical limitations of the kind identified by the judge should be placed upon the standard of care required which simply depends upon what is reasonable in the particular circumstances of the case. The judge's propositions, he says, were derived from cases where the circumstances were different. He formulated the correct test to be applied in such a case by reference to two propositions which he derived from the cases of Condon and Smolden. The first of those was that players in competitive sports each owe a duty to the others to take reasonable care in the particular circumstances in which they are placed. Secondly, the level of care required is that which is appropriate in all the circumstances, the practical content of the duty differs

17/11/17 Week 7 according to the quite different circumstances of sporting activity. 23 I have no difficulty with these propositions. I do not, however, accept Lord Brennan's criticism of the way in which the judge formulated his fourth and fifth propositions. In his third proposition he very helpfully identified the circumstances which had to be considered in this particular case. Lord Brennan does not, and cannot, object to those which he identified. In his fourth and fifth propositions, the judge made it clear that he was referring to “the practicalities” of the evidential burden and not to legal principle. All he was saying was that, in practice, given the circumstances which he had identified, the threshold for liability was high. Lord Bingham CJ said the same of a referee in Smoldon, even though, as he pointed out, the referee was not in the same position as a player because one of the referee's responsibilities was the safety of the players. Lord Brennan accepted that the threshold of liability as between participants must be at least as high as that between player and referee. The judge did not say that a claimant has ...