Volume 10 Issue 2 Sport and The Law Journal
Reasonable care -v- Reckless
disregard. Revisited
By Alistair Duff
Henderson Boyd Jackson Solicitors
eaders may recollect the original article which
appeared in Volume 7, Issue One, 1999, pages
44-54 of the Journal. It would appear an
appropriate time to look at the position now and also to
remind readers of the conclusion in the original article,
namely “However, in reality, there is unlikely to be
much practical difference between reckless disregard
and negligence in all the circumstances....”
The writer is going to look at two written articles one
of which deals with an actual case and four actual case
reports he has come across, but the list is not
exhaustive. The writer is dealing with them in the order
he thinks they were published and it will become
apparent that following the Appeal Court case of
Caldwell -v- Maguire & Fitzgerald, 27 June 2001, the
matter appears to have been put beyond doubt.
Firstly, in terms of an article by Tim Kevan, which
appeared in the Journal of Personal Injury Litigation
under reference J.P.I.L. 2001, 2, 138-148 headed “Sport
Injury Cases, Footballers, Referees and Schools” in one
section of the article he specifically considers
negligence and looks at the what should be familiar
cases of Condon -v- Basi, Elliot -v- Saunders & Liverpool
FC, McCord -v- Swansea City Football Club and Watson
-v- Bradford City!! In his conclusion he states that “As
the above makes clear, the law in this area is still
developing and only time will tell how it will do so in the
future. It remains uncertain whether a different standard
of care should be applied to professionals compared to
amateurs. Further, the actual test remains open to
debate. Is it, for example, ‘significant risk of serious
injury’ or is it ‘reckless disregard’ or some other
formulation? Perhaps, ultimately, it comes down to a
question of fact in the particular case: should this player
be found to be liable for the injuries he has caused? Did
he act unreasonably in all the circumstances?”
Secondly, in terms of an article by Steven Harvey
appearing in Volume 9, Issue One, 2001 of our Journal,
headed “Amateur Football and the Law” he considers
the case he was involved in namely Cubbin -v- Minis. In
this actual case, which was tried on 6 October 2000,
the judge found in favour of the claimant awarding the
amateur footballer damages of £18,000 for the injuries
R
156
and financial loss suffered following a broken leg
sustained in a tackle during a Wirral Sunday League
game in December 1996. In terms of the article it
appears that the judge was very much swayed by the
judgment in the case of Watson -v- Gray. He said that
the final test would be whether a reasonable amateur
player would recognise the significant risk in causing
serious injury through his actions and he also appeared
to say that a player involved in a football match or any
other sporting match owed a duty to take reasonable
care. In the sporting
context there were
however particular
circumstances and
consequently the test of
negligence is slightly
modified and he also
drew a distinction
between amateur and
professional football
further modifying the test
he applied in the case.
The writer has
previously commented,
the judgment of Watson v- Gray does not refer to
any authorities and the
judge accepted that in order for Gordon Watson to
succeed in his claim “that it must be proved on the
balance of probabilities that a reasonable professional
player would have known that there was a significant
risk that what Kevin Gray did would result in a serious
injury to Gordon Watson” and the judge, at the end of
the day, having considered all the evidence, towards the
end of his judgment stated “I accept the plaintiff’s
submissions except insofar as the challenge is
described as badly mistimed. I am in no doubt that such
a forceful, high challenge, particularly when carried out
when there is a good chance that the ball had been
moved on, was one that a reasonable professional
player would have known carried with it a significant
risk of serious injury. The first plaintiff therefore
succeeds in this claim for negligence against the first
He said that the
final test would be
whether a
reasonable
amateur player
would recognise
the significant risk
in causing serious
injury through his
actions.
Sport and The Law Journal Volume 10 Issue 2
and second defendants.”
This appears to be a different sort of test based upon
whether the plaintiff suffered serious injury or not and
this seems rather odd because one could envisage the
situation where there is a clearly negligent act - ie an
assault on a player by another off the ball but there is
no more than minor injury. Does this mean the player
cannot recover?
Further reverting to Cubbin the comments about a
distinction between amateur and profession football
again seems rather odd and, as previously mentioned,
such comments were raised in Condon -v- Basi, but Mr
Justice Drake in Elliot -v- Saunders, albeit obiter, states
“I fully accept that the standard of care to be
considered is objective, but depends on the
circumstances of each case. Lord Donaldson’s
added comment that a higher degree of care is
required of a player in a First Division match than
that of a player in a local league was not
necessarily the decision of the court and was
therefore obiter. I’d respectfully doubt whether it
can be accepted without some reservation.”
The writer would refer to Nettleship -v- Weston,
1972 QB 691, where in the Court of Appeal Lord
Denning and Lord Justice Megaw held in a case
involving a learner driver that the duty of care owed by
the learner driver to the passenger/instructor was the
same objective and impersonal standard as that owed
by every driver, including the learner to passengers, the
public and property on and off the highway in the
criminal and civil law. Lord Denning, at one point stated
“It is no answer for him to say I was a learner driver
under instruction. I was doing my best and could not
help it. The Civil Law permits no such excuse. It
requires of him the same standard of care as of any
other driver.”
Further, in Jones -v- Manchester Corp, 1952 2 AER
125, a patient died from an excessive dose of
anaesthetic which had been administered by a doctor
who had been qualified for 5 months. Again in the Court
of Appeal Lord Denning said “Errors due to
inexperience or lack of supervision are no defence as
against the injured person”.
The writer respectfully submits that this applies to
amateurs and professionals involved in sport as well.
Thirdly, we turn to the Court of Appeal judgment
given on 27 June 2001 in Caldwell -v- Maguire and
Caldwell -v- Fitzgerald, reported in 2002 PIQR, P6,
which would appear put matters beyond doubt as all
the relevant authorities were cited, which has been one
of the problems in the past – namely lack of the citation
of all relevant authorities.
The case was to do with a professional jockey who
was seriously injured whilst riding in a two mile novice
hurdle race at Hexham on 30 September 1994. Holland
J dismissed his claim for personal injuries against the
two respondents who were also professional jockeys
and were riding in the same race. The Appeal was
heard before The Lord Chief Justice, Lord Justice Judge
and Lord Justice Tuckey. Lord Tuckey stated “The
appellant’s complaint was 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.” Further on he stated “Following the race
there was a stewards 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.”.........
“Two distinguished experts, John Francome and Carl
Llewellyn, gave evidence at the trial. They agreed with
the finding of the stewards because they thought 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. As to
the law, the judge said that the primary guidance for
him must come from the Court of Appeal.”
He considered the five relevant cases, namely
Condon -v- Basi, 1985 1WLR 866, Wooldridge -vSumner, 1963 2QB 43, Wilks -v- Cheltenham
Homeguard Motor Cycle and Light Car Club, 1971
1WLR 668, Harrison -v- Vincent, 1982 RTR 8 and finally
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Volume 10 Issue 2 Sport and The Law Journal
Reasonable care -v- Reckless
disregard. Revisited
Smoldon -v- Whitworth 1997 ELR 249.
Lord Tuckey stated:
“From these cases he extracted five propositions
....... and Lord Brennan QC for the appellant
accepts the first three of the judge’s propositions
of law, but says the last two are unduly restrictive
and not supported by the Court of Appeal
authorities, which the judge considered.”
Proposition [4] was in the following terms “[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”
and “[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 emphasise the distinction
between the expression of legal principle and the
practicalities of the evidential burden. The judge in the
first instance then expressed his conclusions as follows:
Each defendant is guilty of lapses of care in the riding of
their respective mounts away from the second last
hurdle so as to contribute to the premature curtailment
of the inside lane otherwise being followed by Royal
Citizen and thus so as to contribute to the claimant’s
accident...” Further on Lord Tuckey states “Holland J,
was referred to a number of other Australian
authorities, as we have. It is not necessary to refer to
those cases. The relevant principles to be applied to a
case of this kind emerge clearly from the decision of
this court in Condon and Smoldon, which are binding on
us.” (The writer notes that Curtis J, the judge of the
first instance in Smoldon -v- Whitworth specifically said
“I decline to be drawn into the argument about whether
I am bound by the decision in that case or it is of
persuasive authority. Either way, in my judgment the
case contains a compelling, modern and easily
understood statement of the law.”) Lord Justice Tuckey
later on commenting on the judge in the first instance’s
position stated “In his fourth and fifth propositions, the
judge made it clear 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 has identified, the threshold of
liability is high. Lord Bingham CJ said the same of the
referee in Smoldon......... The judge did not say that a
claimant has to establish recklessness. That approach
was specifically rejected by this court in Smoldon. As
in Smoldon, there will be no liability for errors of
158
judgment, oversights or lapses of which any participant
might be guilty in the context of a fast moving contest.
Something more serious is required.”
The writer specifically notes that Lord Bingham CJ
specifically said “The level of care which is required is
that which is appropriate in all the circumstances, and
the circumstances are of crucial importance. Full account
must be taken of the factual context in which a referee
exercises his functions, and he could not be properly
held liable for errors of judgment, oversights or lapses of
which any referee might be guilty in the context of a fast
moving and vigorous context. The threshold of liability is
a high one. It will not be easily crossed.”
Lord Justice Tuckey then turned to the appellant’s
second ground of appeal which was namely “He submits
that the judge should, in any event, have found the
respondents liable..... The
Jockey Club’s findings that
the respondents were
guilty of careless riding
supports and establish the
view that this was a case
of negligence in which the
respondents should have
been held liable.” Lord
Justice Tuckey later on
states “The Jockey Club’s
rules and its findings are
of course relevant matters
to be taken into account
but, as the authorities
make clear, the finding
that the respondents were
guilty of careless riding is
not determinative of negligence. As the judge said, there
is a difference between response by the regulatory
authority and response by the courts in the shape of a
finding of legal liability.”
Lord Justice Judge stated at one point in his
judgment “I would, however, emphasise two particular
points. First, it is clear from the authorities that a finding
that a jockey has ridden his horse in breach of the rules
of racing does not decide the issue of liability in
negligence.........” “ Second, in the context of sporting
contests it is also right to emphasise the distinction to
be drawn between conduct which is properly to be
characterised as negligent, and thus sounding in
damages, and errors of judgment, oversights or lapses
of attention of which any reasonable jockey may be
guilty in the hurly burly of a race......” “The level of care
required is that which is appropriate in all the
circumstances, and the circumstances are of crucial
importance.”
This judgment appears to put the matter beyond
Lord Bingham CJ
specifically said
“The level of care
which is required is
that which is
appropriate in all
the circumstances,
and the
circumstances are
of crucial
importance.
Sport and The Law Journal Volume 10 Issue 2
doubt, but as stated in the previous article, in reality
there is unlikely to be much difference between
‘reckless disregard’ and ‘negligence’ in all the
circumstances. If the latter is applied and taking into
account the playing culture, different styles of play and
the heat of the moment as relevant circumstances,
then sports participants are likely to receive just as
effective protection using ‘negligence’ in all the
circumstances as the test, as they would under the
doctrine of ‘reckless disregard’.
The next case to look at is Leebody -v- Ministry of
Defence 2001 CLY 4544. This case was a county court
case dated 9 July 2001 in which Leebody brought an
action against the MOD in respect of personal injuries
suffered while playing in a football tournament
organised by the Royal Navy. He sustained a serious
injury to his leg following
an allegedly negligent
tackle by a member of
the opposing team. The
referee took no action
and it was left to the
senior officer present to
forfeit the game.
Judgment was granted
for Leebody on the basis
that the offending player
went to tackle him from
behind with both legs and
that the tackle was
deliberately aimed at the
man and not the ball, which was two to three yards
ahead of Leebody. The tackle was illegal, outside the
rules of Association Football and dangerous in all the
circumstances. Condon -v- Basi was followed. It doesn’t
appear that any other cases were cited.
The next case is Pitcher -v- Huddersfield Town
Football Club Ltd, (unreported, July 17, 2001 QBD). This
was a claim for damages for personal injury suffered by
Darren Pitcher, the claimant, as a result of a late tackle by
Paul Reid in the course of a Nationwide Division One
match played on 31 August 1996 between Crystal Palace
and Huddersfield Town. The claim was brought in
negligence. The allegation was that in the course of his
employment, Paul Reid chased the claimant, who was
running with the ball towards the Huddersfield goal. Paul
Reid was behind the claimant and to his right. After the
claimant has passed the ball, he lunged at the claimant
with his left leg and struck the claimant on the outside of
the right knee with his left foot, as a result of which the
claimant sustained injury to his right knee. It was agreed
that the time difference between the challenge and
when the ball was played was fractional, namely, about
0.2 of a second. Professional sportsmen, it was argued,
Although the judge
was satisfied that
this was a late
and no doubt
clumsy tackle in
coaching terms,
the claimant could
not establish that
it went any further.
must react to events in a matter of split seconds; they
have the training and the skill at this level to do so.
Although the judge was satisfied that this was a late
and no doubt clumsy tackle in coaching terms, the
claimant could not establish that it went any further. It
was a foul but the judge was not satisfied it was more.
It was held to be an error of judgment in the context of
a fast moving game where Paul Reid had to react to
events in a matter of split seconds. Whatever their
training and their skill the judge concluded that First
Division footballers are far from infallible. This was held
to be the kind of tackle which, although against the
rules of the game, occurs up and down the country
every Saturday of the football season in Division One
matches. The claimant did not succeed in crossing what
the judge called “the high threshold” that lay in his path
to take this case from a simple late tackle, albeit one
with tragic consequences, to one actionable in
negligence. His claim failed. (There doesn’t appear there
was any authority cited, but the ‘high threshold’
comment, as you remember, is equivalent to what Lord
Bingham said in the Smoldon Appeal case.)
Lastly, in the case of Gaynor -v- Blackpool Football
Club 2002 7 CL 432, 8 November 2001, the judge in the
county court of Oldham, dealt with a case where an
aspiring professional footballer sought to recover
damages when he sustained a serious leg injury during
an Under 19s association football match between the
youth teams of two professional football clubs. Gaynor
alleged that he was kicked high on his leg by C, one of
Blackpool’s players, after the referee had blown his
whistle for an earlier infringement and after the ball had
rolled out of play. C, who was shown a red card by the
referee following the incident, contended that he had
challenged Gaynor for a 50/50 ball close to the touchline
while the ball was still in play. C further submitted that
he had not heard the whistle being blown and that
Gaynor had injured himself when he lunged at the ball,
kicking C high on the knee.
The judge gave judgment for Gaynor holding that
Gaynor’s version of events was to be preferred. C’s
tackle on Gaynor was extremely late, continuing after
the whistle and after the ball was out of play. It was
unnecessary and carried a high risk of injury. It was
executed in such a way that C kicked Gaynor hard
enough to break his leg even though Gaynor was
wearing shin pads. Caldwell -v- Maguire was applied.
In conclusion, it would appear that in any sporting
case now, Caldwell -v- Maguire should be cited and will
be binding on parties in England. To the writer’s
knowledge, the matter is still to be tested in the
Scottish Courts.
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