This article looks at the law regarding negligence in sport and recreational
activities, and assesses whether there is a need to clarify the duty of care to ensure
certainty and justice. In the USA, a plaintiff is required to show the defendant acted
with ‘reckless disregard’ for an action of negligence to succeed,1 whereas the standard
currently required in the UK is that of ‘ordinary negligence’ taking account of all the
circumstances. It has been contended that this is a lower standard than that in the US,
and is inappropriate as it fails to take account of the special nature of such activities. It
is submitted the present law is correct, as ‘taking account of all the circumstances’
allows the courts to decide each case on its own merits rather than restricting it to
specific criteria. This is important as it allows for a variety of scenarios that occur due
to the very different nature of sports and the way in which they are contested. By
looking at the decisions of the courts in sports/negligence cases, it will be established
there has been a clear pattern, and not the fluctuation and uncertainty suggested by
some commentators.
In Wooldridge v Sumner2, a spectator at a horse show was injured when a
horse went out of control and out of the arena. The Court ruled the horseman was not
negligent as a spectator at a game or competition takes a risk of injury caused by a
participant in the course of a game, “unless the participant’s conduct is such as to
evince a reckless disregard”3. The term ‘reckless disregard’ is the phrase that caused
the most problems for commentators and future decisions in the Courts, as it seemed
to be a definitive statement as to what is required to constitute negligence at a sporting
event. However, it is submitted that this expression should be viewed in the context it
was used, as the judge was saying an error of judgment in the course of a competition
in which a participant is required to put a horse through its paces is not enough to
1
According to Nabozny v Barnhill 334 NE 2d 259 (Illinois Appellate Court 1975)
Wooldridge v Sumner [1963] 2 Q.B. 43
3
Fn 2, at 68
2
constitute negligence, and that something more is required. The requirement of
‘reckless disregard’ was relevant to the case in question, taking account of all the
circumstances, and need not have been isolated from those particular facts to set a
precedent for all future negligence cases.
This can be seen in Wilks v Cheltenham Homeguard4, where Lord Denning
M.R. stated: “a competitor in a race… must, of course, use reasonable care. But that
means reasonable care having regard to the fact he is a competitor in a race in which
he is expected to go “all out” to win”5. He is taking into account all the circumstances,
and goes on to say: “in a race the rider is, I think, liable if his conduct is such to
evince a reckless disregard of the spectator’s safety: in other words, if his conduct is
foolhardy”6. Some commentators see this as a move away from Wooldridge, as
Charlish P. states: “foolhardy certainly seems to imply a different standard to that of
reckless disregard.”7 However, Denning M.R. is simply applying the test which he
feels is appropriate for the case, as was done in Wooldridge, taking account of all the
circumstances. In the same case, Phillimore L.J. states: “the tests mentioned in
Wooldridge v Sumner are only to be applied if the circumstances warrant them”8.
This again shows how the current measure involving ‘taking into account all the
circumstances’ is correct and sufficient, as it allows the courts to look at cases on their
own merits. Due to the different rules and expectations in sports, it is important to
allow the courts this flexibility.
In Condon v Basi9, the defendant tackled the plaintiff during a football match
in such a manner as to lead to the plaintiff to suffer a broken leg. This was viewed as a
4
Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 1 W.L.R. 668
ibid. at 671
6
ibid. at 671
7
Charlish P, “A Reckless Approach to Negligence”. J.P.I. Law 2004, 4, 291-296 at 292
8
Fn. 4, at 677
9
Condon v Basi [1985] 1 W.L.R. 866
5
“landmark decision”10 by many, as it held there is a general standard of care owed,
under which a player is under a duty to take all reasonable care, taking into account
the circumstances in which he is placed. To establish this Lord Donaldson cited a
decision of the High Court of Australia in Rootes v Shelton11, preferring the approach
of Kitto J when attempting to define the duty owed, which is based on the Lord Aitkin
approach12. Following this decision, negligence claims in sport have been based on a
common duty of care as opposed to a requirement of reckless disregard. However, it
would be useful to look at why Lord Donaldson decided in favour of the plaintiff,
before accepting the blanket assumption that this was based on a lower threshold of
when a duty of care is owed by one player to another. According to the very
experienced referee, the defendant challenged, “by sliding from a distance of about 3
to 4 yards. The slide tackle was late, and was made in a reckless and dangerous
manner”.13 Lord Donaldson agreed with the trial judge when he concluded:
“It is not for me in this court to define exhaustively the duty of care between
players in a soccer football game. Nor, in my judgement 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”14
Neither the trial judge or Lord Donaldson redefined the standard of care as has been
interpreted in cases and by commentators since, as they felt the seriousness of the
offence meant the player would be found guilty whatever the measure would be. Even
where Lord Donaldson favours the standard as defined by Kitto J, (above), the
“reasonable care taking account of the circumstances” is followed by “which in a
game of football, are quite different from those which affect you when you are going
10
Kevan T, “Sports Personal Injury”. I.S.L.R. 2005, 3(AUG), 61-67 at 62
Rootes v Shelton [1968] A.L.R. 33
12
In Donoghue v Stevenson [1932] A.C. 562
13
Condon v Basi [1985] 2 All E.R. 453 at 455
14
ibid. at ‘The judge’s final conclusion’
11
for a walk in the countryside”15. This is therefore consistent with the decisions in
Wooldridge and Wilks, as it was based on the facts in front of the court, on the basis of
‘ordinary negligence taking into account all of the circumstances’. The phrase
‘reckless disregard’ was used in the judgment and was appropriate in the
circumstances.
After Condon v Basi, a number of cases were decided using the ‘ordinary
negligence’ standard of care. In McCord v Swansea City AFC16, John McCord, a
Stockport County player brought an action against Swansea City and its player, John
Cornforth, after a tackle ended his career. The judge ruled the tackle was not reckless,
but still found in favour of the plaintiff as the defendant had made a serious mistake or
misjudgment. In a similar case, Watson v Gray and another17, Gordon Watson, a
Bradford City player suffered a broken leg due to a tackle from Kevin Gray, a
Huddersfield Town player. The judge ruled that a reasonable professional player
would have realised that the tackle carried with it a significant risk of serious injury,
and awarded substantial damages to the plaintiff. It is submitted that these cases,
although not necessarily wrongly decided in terms of justice, were decided using the
wrong interpretation of the decision in Condon v Basi. An error of judgement in a fast
moving and physical contest should not be enough to constitute negligence; there
should be something more. It is this confusion and misinterpretation of ‘ordinary
negligence’ that has led to calls for the law to be clarified, however, this need not be
done provided the courts use the rest of the definition; ‘taking into account of all the
circumstances’, as this would concern the fact that a mistake or error of judgment in
the heat of a fast moving and competitive game is not enough to constitute
negligence.
15
Condon v Basi 2 All E.R. 453 at 454
McCord v Swansea City AFC Ltd and another [1997] The Times, February 11
17
Watson v Gray and another [1998] The Times, November 26
16
The Court of Appeal appear to have recognised this again in the recent cases
of Caldwell v Maguire18 and Blake v Galloway19. In Caldwell, a jockey was seriously
injured when thrown from his mount during a race. A stewards inquiry found that the
cause of this were the actions of two other jockeys in the race (the defendants), who
moved across towards the inside rail into the path of another horse, causing it to shy
away from the closing gap and unseat its rider, which then served to obstruct and
bring down the plaintiff’s horse, causing the jockey serious injury. It is clear from the
guidance given to the stewards that the riders were guilty of breaching the rules, and
based on the interpretation given to Condon v Basi over the previous 15 years (as in
McCord v Swansea City and Watson v Gray, above), this would have been sufficient
to succeed in a claim of negligence. However, the Court of Appeal has returned to
what the author believes to be the correct interpretation, which is to take into account
all the circumstances, these being that the incident happened in the course of a fastmoving contest where it is not desirable to class momentary carelessness as
negligence. To arrive at the decision, the court cited Smolden v Whitworth20, where a
rugby referee was found negligent for injuries sustained to a player following a
collapsed scrum. Although this involved a referee, who undoubtedly has a specific
responsibility for the safety of the players, Judge LJ agreed with Lord Bingham in that
case by concluding:
“(a referee)…could not be properly held liable for errors of judgment,
oversights or lapses…in the context of a fast moving and vigorous contest.
The threshold of liability is a high one. It will not easily be crossed.”21
18
Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054
Blake v Galloway [2004] EWCA Civ 814
20
Smolden v Whitworth [1997] P.I.Q.R. 133
21
ibid, Judge LJ, from Lexis Nexis transcript para 39
19
It follows that if a referee could not properly be held responsible for an error of
judgment in a fast moving contest, then a fellow contestant is similarly entitled to
escape liability.
In Blake v Galloway22, boys of 15 years of age were involved in horseplay
rather than a regulated sport. The Court of Appeal, finding no precedent for horseplay,
found there were sufficient similarities between the activities to draw upon sports
related negligence cases for guidance. Dyson LJ quoted Diplock LJ in Wooldridge in
his deliberations, calling what happened nothing more than ““an error of judgment or
lapse of skill”…and that is not sufficient to amount to a failure to take reasonable care
in the circumstances.”23 He went on to conclude:
“the victims of such accidents will usually not be able to recover damages
unless they can show that the injury has been caused by a failure to take care
which amounts to recklessness or a very high degree of carelessness.”24
According to Charlish P, “this appears to be moving further than the Court in
Caldwell were prepared to go. There is no supplemental guidance that the standard
should remain that of ordinary negligence”.25 Alternatively, it may be clarifying the
standard of care owed, after the misinterpretation of Condon v Basi, which led to
many cases being decided while apparently not ‘taking account of all circumstances’.
In conclusion, the current standard of care for contact sports of ordinary
negligence is appropriate provided the courts take account of all the circumstances,
these being that errors of judgment can be made in a fast flowing and highly
competitive environment, and this should not normally constitute negligence. In
Wooldridge v Sumner, the Court decided the case correctly on its own merits. The
phrase “reckless disregard” was taken out of context and seized upon by
22
Blake v Galloway [2004] EWCA Civ 814
ibid, Dyson LJ, Westlaw UK transcript p5, para 17
24
ibid, at p6, para 25 (conclusion)
25
Charlish P, “A Reckless Approach to Negligence”, J.P.I. Law 2004, 4, 291-296, at 295
23
commentators26, and led to confusion in the Courts. The Court attempted to clarify the
situation in Wilks v Cheltenham Homeguard, by stating it should be ordinary
negligence taking account of all the circumstances. This was seen by many as a
retreat from Wooldridge, but alternatively could have been in support as it explained
the case was decided on its own merits under the circumstances, as each case should
be. Condon v Basi was correctly decided, but subsequently misinterpreted in the cases
of McCord and Watson. It seems the Court of Appeal are now returning to the correct
test after the verdicts in Smolden, Caldwell and Maguire, as they have said a person
should not be held liable for an error of judgment in a fast moving and vigorous
contest, there needs to be more. If the Courts continue to interpret the standard
correctly, then the call for clarity by definition is not warranted. There is little
evidence that leaving the definition as it stands would open the floodgates for claims.
Toczec L talks of a “creeping litigation culture”27, but it is not out of proportion with
the increased litigation in most other areas of life. It would not necessarily be a bad
thing if there were more cases before the Courts, as Dr M. James states: “although
there is a possibility that referees may control a game in a more defensive manner, if
this is to prevent injuries…from occurring, then that could be said to be a positive
step.”28 If the current standard of care was to be replaced by “reckless disregard”, it is
likely we would be returning to these cases and many others in the years to come to
attempt to define what constitutes reckless disregard. At least within the current
framework the Courts are able to look at the widely varying situations that occur in
different sports without being unduly restricted.
26
See Goodhart A.L. “The Sportsman’s Charter” [1962] 78 L.Q.R. 490
Toczek L “A case of foul play”, 152 N.L.J. 868
28
Dr Mark James, “Referees, scrums and spinal injuries” 153 N.L.J. 166
27
BIBLIOGRAPHY
Gardiner S. et al. Sports Law (2001) 2nd edn Cavendish
Grayson E. Sport and the Law (2000) 3rd edn. Butterworths
Charlish P. “A Reckless Approach to Negligence.” J.P.I. Law 2004, 4, 291-296
Goodhart A.L. “The Sportsman’s Charter.” 1962, 78 L.Q.R. 490
Kevan T. “Sports Personal Injury.” I.S.L.R. 2005, 3(Aug), 61-67
Dr. James M. “Referees, scrums and spinal injuries.” 153 N.L.J. 166
Toczec L. “A case of foul play.” 152 N.L.J. 868
TABLE OF CASES
Blake v Galloway [2004] EWCA Civ 814
Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054
Condon v Basi [1985] 1 WLR 866
Donoghue v Stevenson [1932] AC 562
McCord v Swansea City AFC ltd. and another [1997] The Times, February 11
Nabozny v Barnhill 334 NE 2d 259 (Illinois Appellate Court 1975)
Rootes v Shelton [1968] ALR 33
Smolden v Whitworth [1997] PIQR 133
Watson v Gray and another [1998] The Times, November 26
Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 1 WLR 668
Wooldridge v Sumner [1963] 2 QB 43