1
Matthew Gibson
Sports Law Assignment 2005/2006
The aim of this assignment is to give a critique of the law in relation to the appropriate
standard of care for contact sports. In doing so, the relevant cases in the area will be
analysed, the views of academics will be evaluated and the position in the USA will be
examined.
There are two positions as to what standard is appropriate. The first is the standard of
ordinary negligence, as set out in Donoghue v Stevenson,1 which states that a duty exists to
take reasonable care to ones neighbour.
However it is felt by many that this standard is insufficient, as it fails to take into account
the special nature of sporting activities, the Canadian case of Agar v Canning2 exemplifies
this concept:
The conduct of a player in the heat of the game is instinctive and unpremeditated and
should not be judged by standards suited to polite social intercourse.3
The second standard is that of reckless disregard, and was first applied to contact sports in
the case of Wooldridge v Sumner.4 Sellars LJ gave the following definition of reckless
disregard:
If the conduct is...reckless and in disregard of all safety of others so that it is a
departure from the standards which might reasonably be expected...5
In Wilks v Cheltenham Homeguard,6 Phillimore LJ implied that the standard was obiter and
1
Donoghue v Stevenson [1932] AC 562
Agar v Canning (1965) 54 WWR 302
3
Agar v Canning (1965) 54 WWR 302, at 304, From T. Kevan, 'Sports Personal Injury' (2005) 1
International Sports Law Review 61
4
Wooldridge v Sumner [1963] 2 QB 43
5
Wooldridge v Sumner [1963] 2 QB 43 at 57
6
Wilks v Cheltenham Homeguard [1971] 1 W.L.R. 668
2
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specific to the circumstances of the case.7
Perhaps influenced by the hostility and opposition to the standard of reckless disregard, the
decision of Donaldson MR in Condon v Basi8 retreated back to ordinary negligence.9 It
was ruled, that the duty of care between players in competitive sports, was a duty to take
reasonable care, taking into account the rules of the game and the circumstances in which it
was being played:10
...you are under a duty to take all reasonable care taking account of the circumstances
in which you are placed...11
Donaldson found there was no prior precedent in this area of the law12 and accepted the
decision of Australian case Rootes v Shelton, which applied the standard of ordinary
negligence.13 Charlish (p293) subjected the choice of applying the case of Rootes to a
withering attack by stating:
Why the court would choose to accept a decision arising from a non-contact sport
such as waterskiing...and applying it to an injury received in association with football
is a matter of some conjecture...14
Additionally within his judgment Donaldson agrees with the County Court ruling of
Wooton J, where it is stated ‘It is not for me in this court to attempt to define exhaustively
the duty of care between players…’.15 It has been argued by a number of critics, that
leaving the test open in this way, has contributed to the confusion which has developed.16
Gardiner (p697) states:
If it is not for his lordship when the facts of the case involve the breach of a
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16
Wilks v Cheltenham Homeguard [1971] 1 WLR 668 at 676
Condon v Basi [1985] 1 WLR 866
P. Charlish, 'A Reckless approach to negligence' (2004) 4 Journal of Personal Injury law 291at 292
M. Beloff et al, Sports Law, (Hart Publishing: Oxford, 1999) at 114
Condon v Basi [1985] 1 WLR 866 at 869
Condon v Basi [1985] 1 WLR 866 at 86
Rootes v Shelton [1968] ALR 33
P. Charlish, 'A Reckless approach to negligence' (2004) 4 Journal of Personal Injury law 291at 293
Wootton J cited by Donaldson M.R. at p869
S. Gardiner et al, Sports Law, 2nd edition (Cavendish: London, 2001) at 697
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duty...then it rather begs the question whose job it is.17
Despite the criticism of Condon v Basi, the principle of ordinary negligence was adopted
and appeared to have set a substantial, yet ill-defined precedent.18
In Smoldon v
Whitworth19 Curtis J stated, ‘The law is as stated in Condon v Basi...which is the decision
of the Court of Appeal and I am bound by it.’20
However confusion was created as to which standard should be applied by the court of first
instance in Caldwell v Maguire,21 which created a list of five criteria that appeared to
indicate a return to the standard of reckless disregard. The fifth criteria states:
...it may therefore be difficult to prove any such breach of duty absent proof of
conduct that in the point of fact amounts to reckless disregard...22
In reviewing these criteria, Tuckey LJ stated that the conditions were simply concerning the
‘practicalities of the evidential burden’ not the legal principal,23 and that '...in practice,
given the circumstances which he had identified, the threshold for liability was high'.24
This ruling clearly has the potential to create much confusion, as it appears that for a
successful action a claimant must prove an evidential burden of a breach of duty to the
standard of reckless disregard, however the standard of care remains to be ordinary
negligence.25
Most recently the case of Blake v Galloway26 appeared to promote a return to the standard
of reckless disregard. The case centred on a group of fifteen year olds, engaging in
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26
S. Gardiner et al, Sports Law, 2nd edition (Cavendish: London, 2001) at 697
P. Charlish, "A Reckless approach to negligence" (2004) 4 Journal of Personal Injury law 291 at 293
Smoldon v Whitworth and Another [1997] ELR 249
Smoldon v Whitworth and Another [1997] ELR 249 p4 of Lexis transcript
Caldwell v Maguire and Another [2002] PIQR 6
Caldwell v Maguire and Another [2002] PIQR 6 at 48
Caldwell v Maguire and Another [2002] PIQR 6 at 51
Caldwell v Maguire and Another [2002] PIQR 6 at 51
T. Kelvin, 'Sports Personal Injury' (2005) 1 International Sports Law Review 61 at 64
Blake v Galloway [2004] 1 WLR 2844
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horseplay. Despite the obvious and significant differences between organised sport and
horseplay, Dyson LJ came to the conclusion that in regards to negligence, the two were of
significantly close analogy. He also stated that there was no prior authority to follow, ‘No
authority has been cited to us dealing with negligence, in relation to injury caused in the
course of horseplay’.27
In relation to the appropriate standard of care, Dyson LJ states:
I would, therefore, apply the guidance given by Diplock LJ in Wooldridge...in a case
such as the present there is a breach of duty of care...only where A's conduct amounts
to recklessness or a very high degree of carelessness.28
Charlish (p295) gave two possible theories on the implication of this judgment, firstly due
to the fact that there was no mention to whether ordinary negligence should remain, Dyson
was leaving the matter open for further deliberation. Alternatively, he states the finding
may be deemed to take into account the unique nature of sport and horseplay, creating a
clearer and less ambiguous manner of applying the law than the conditions given in
Caldwell.29
A critic of the judgement may state that a fundamental error was made in associating
horseplay with organised sport, due to the fact that contrary to Dyson’s observations there
was a prior precedent in the area.30 The case of Mullin v Richards31 involved two fifteen
year old girls engaging in similar horseplay. It was held that there was no negligence, as
the risk of injury was not reasonably foreseeable.32 It may be argued that Dyson should
have simply followed the ruling of Mullin and allowed the confusion surrounding this area
of law, to be settled by a bona-fide contact sports case.
27
Blake v Galloway [2004] 1 WLR 2844 at 2851
Blake v Galloway [2004] 1 WLR 2844 at 2851
29
P. Charlish, 'A Reckless approach to negligence' (2004) 4 Journal of Personal Injury law 291at 295
30
The Federation Press (2004) Blake v Galloway Last Accessed 5 December 2005 at:
http://www.federationpress.com.au/pdf/Blake%20v%20Galloway.pdf
31
Mullin v Richards [1998] 1 W.L.R. 1304
28
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There has been much academic argument over which standard is more appropriate, some of
the main points will now be reviewed.
Duff (p157) states that one of the main problems in the past has been the ‘lack of citation
of relevant authorities’.33 Indeed Gardiner (p702) goes further to suggest that while judges
have said to be using ordinary negligence, they appear to be giving judgement in terms of
reckless disregard.34
This point may be exemplified by the County Court judgement of Wooton J, in Condon v
Basi where it is stated. ‘He was clearly guilty...of serious and dangerous foul play which
showed a reckless disregard of the plaintiff's safety’.35
It is stated that judges are applying this standard to prevent their judgements being
overturned on appeal, if the court decides reckless disregard is the more appropriate
standard.36
Gardiner (p702) puts forward the point that the standard of reckless disregard would result
in less pressure being put on participants to change their style of play, simply due to the
threat of civil action, and that reckless disregard would allow greater leeway to players,
only punishing high degrees of negligence and dangerous play.37
In opposition to reckless disregard academics state,38 that it may be criticised for blurring
the distinction between tort and crime. This is due to the fact that criminal law requires a
defendant to act with subjective recklessness toward the victim to be held to warrant
criminal sanctions.39 Thus also judging negligence to the standard of reckless disregard
only objectively, may create confusion. For my part it is submitted that this is a weak
32
Mullin v Richards [1998] 1 W.L.R. 1304 at 1313
A Duff, 'Reasonable Care v Reckless Disregard. revisited' (2002) 10 (2) Sport and the law journal 156 at
157
34
S. Gardiner et al , Sports Law, 2nd edition (Cavendish: London, 2001) at 702
35
Wootton J cited by Donaldson MR at 869
36
S. Gardiner et al , Sports Law, 2nd edition (Cavendish: London, 2001) at 702
37
S. Gardiner et al , Sports Law, 2nd edition (Cavendish: London, 2001) at 702
33
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point, as even if the reckless disregard standard does blur the distinction slightly, if it is
found to be a more appropriate standard of liability, then slightly blurring the distinction
between crime and tort would be a small price to pay.
Conversely it is also argued that there is relatively little difference between the two
standards, Duff (p159) states:
...in reality there is unlikely to be much difference between reckless disregard and
negligence...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...as they would
under the doctrine of reckless disregard.40
It must be noted the position in this area may soon be settled when the Competition Bill
2005 is enacted, Clause 1 of which states:
...in determining whether the defendant should have taken particular steps to meet the
standard of care...[the court must] have regard to whether a requirement to take those
steps might(a) Prevent a desirable activity from being undertaken at all...
(b) Discourage persons from undertaking functions in connection with a desirable
activity.41
This is likely to indicate a return to the standard of reckless disregard, as a ordinary
negligence standard may be interpreted to prevent a desirable activity from taking place,
through fear of litigation.
For an alternative view on the subject, it is necessary to examine the position in the USA,
where the law in this area is more developed.
Although different jurisdictions have slightly different interpretations of the law, the
followed standard for contact sports is that of reckless disregard.
38
S. Gardiner et al , Sports Law, 2nd edition (Cavendish: London, 2001) at 705
S. Gardiner et al , Sports Law, 2nd edition (Cavendish: London, 2001) at 705
40
A Duff, 'Reasonable Care v Reckless Disregard. revisited' (2002) 10 (2) Sport and the law journal 156 at
159
41
Clause 1 Compensation Bill 2005
39
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The precedent for this was set by Nabozny v Barnhill,42 where Adesko J states:
...a player is liable for injury in a tort action if his conduct is such that it is either
deliberate, wilful or with a reckless disregard for the safety of the other player so as
to cause injury to that player...43
It is widely regarded that this ruling was a due to public policy, to protect individuals from
being at threat from litigation through the normal playing of a sport or game.44
The standard has come into criticism from rulings such as Gauvin v Clark.45 In this ice
hockey case, the defendant ‘butt-ended’ a fellow player with his stick causing serious
injury. It was held that ‘vigorous and active participation in sporting events, should not be
chilled by the threat of litigation’.46
This concept, fuelled by rulings of other similar cases, has brought criticism that in
physical sports like ice hockey, very few claims would be successful, due to the fact that
every action appears to fall under the realm of being reasonably anticipatable.47
Yasser (p271) came to the conclusion that the standard of reckless disregard is too lenient,
and calls for sport to be ‘reigned in’. He states sport should be placed into perspective and
does not deserve the breathing room it currently has:
Insulating sports participants from liability for ordinary negligence sends all the
wrong messages. Even in the heat of competition, participants can and should be
expected to behave reasonable.48
However it is submitted that in the USA, public opinion would object to sport being
42
Nabozny v Barnhill 31 Ill. App.3d 212
Nabozny v Barnhill 31 Ill. App. 3d 212 at 215
44
A. Spitzzeri, 'The Negligent Tortfeasor’s Get Out of Jail Free Card: The Contact Sports Exception'
Journal of DuPage County Bar Association 2005 (www.dcba.org/brief/sepissue/2005/art10905.htm)
45
Gauvin v Clark (1989) 537 N.E.2d 94
46
Gauvin v Clark (1989) 537 N.E.2d 94 at 97 from R. Yasser 'In the heat of competition: Tort liability of
one participant to another; why cant participants be required to be reasonable?' (1995) 5 Seton Hall Journal
of Sports and Entertainment Law 253 at 259
47
J.C.H. Jones & K.G. Stewart 'Hit Somebody: Hockey Violence, Economics, the law and the twist and
McSorley Decisions' (2002) 12 Seton Hall Journal of Sports and Entertainment Law 165 at 190
48
R. Yasser 'In the heat of competition: Tort liability of one participant to another; why cant participants be
required to be reasonable?' (1995) 5 Seton Hall Journal of Sports and Entertainment Law 253 at 271-272
43
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reigned in, in such a way, Jones and Stewart state (p172) ‘Only in the U.S. is the
attendance positively related to the more extreme forms of violence’.49
This is due to the ‘separate reality’ in which sport is viewed by both those playing and
observing,50 and the overemphasis upon winning at all costs.51
However, Deangelis (p526) states the standard of ordinary negligence does not take into
account the competitive nature of sports nor that injuries occur in the heat of competition
and should not be second guessed latter by a judge or jury.52
He goes on to state that the standard of reckless disregard, takes into account that injuries
occur and the mere presence of a injury should not result in tort liability. The standard
does however protect participants from acts which are reckless or clearly outside the rules
of the game.
In conclusion to the initial question of which is the appropriate standard of negligence, it is
submitted that taking into account of case law, academic opinion and looking at the
situation and opinion from the USA, the standard most appropriate is that of reckless
disregard.
In coming to this decision, I would agree with the conclusions made by
Deangelis, in his preference of the reckless disregard standard.
I would also support the precedent set by Blake v Galloway, despite the fact that the judge
was wrong to analogies sport with horseplay, the standard set out is the correct one.
However, it is submitted that the policy reasons, of not wanting to discourage people from
participating in sport, is an incorrect policy to follow. I would agree with Cohen (p203)
where it is stated:
49
J.C.H. Jones & K.G. Stewart 'Hit Somebody: Hockey Violence, Economics, the law and the twist and
McSorley Decisions' (2002) 12 Seton Hall Journal of Sports and Entertainment Law 165 at 172
50
B. Svoranos "Fighting? Its all in a days work on the ice: Determining the appropriate standard of a hockey
players liability to another player" (1997) 7 Seton Hall Journal of Sports and Entertainment Law 487 at 489
51
L.S.C. Hanson & C. Dernis 'Revisiting excessive violence in the professional sports arena: changes in the
past twenty years?' (1996) 6 Seton Hall Journal of Sports and Entertainment Law 127 at 137
52
F.J. Deangelis, 'Tort - Standard of care - Duty of care applicable to participants in informal recreational
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…It is doubtful that in the middle of playing a sport, when adrenaline is flowing…
participants would consciously conform their conduct to what would or would not
breach their duty of care.53
Although I believe this to be true, and that when applied the two standards may be
sufficiently similar. A formal decision must be made as to the appropriate standard of
judging liability.
As Duff (p644) states, until such a judgment is forthcoming participants with perfectly
good grounds for appeal may not proceed due to the uncertainty over the standard of care,
and necessary degree of negligence required to support the granting of damages.54
sports is to avoid the infliction of injury caused by reckless or intentional conduct. Crawn v Campo' (1995) 5
Seton Hall Journal of Sports and Entertainment Law 509 at 526
53
M. Cohen 'Tort Law - Recreational Activity - Standard of care - Co-participants in Recreational activities
owe each other a duty not to act recklessly" (2000) 10 Seton Hall Journal of Sports and Entertainment Law
187 at 203-204
54
A. Duff, 'Civil actions and sporting injuries' 144 New Law Journal 639 at 644
10
Bibliography
Books
M. Beloff et al, Sports Law, (Hart Publishing: Oxford, 1999)
S. Gardiner et al, Sports Law, 2nd edition (Cavendish: London, 2001)
E. Grayson, Sport and the law, 3rd Edition (Butterworths: London, 1999)
Journal Articles
P. Charlish 'A reckless approach to negligence' (2004) 4 Journal of Personal Injury law 291
M. Cohen 'Tort Law - Recreational Activity - Standard of care - Co-participants in Recreational activities owe
each other a duty not to act recklessly" (2000) 10 Seton Hall Journal of Sports and Entertainment Law 187
F.J. Deangelis, 'Tort - Standard of care - Duty of care applicable to participants in informal recreational sports
is to avoid the infliction of injury caused by reckless or intentional conduct. Crawn v Campo' (1995) 5 Seton
Hall Journal of Sports and Entertainment Law 509
K Denner, 'Taking one for the team: The role of assumption of the risk in sports torts cases' (2004) 14 Seton
Hall Journal of Sports and Entertainment Law 209
A. Duff, 'Civil actions and sporting injuries' 144 New Law Journal 639
A Duff 'Reasonable Care v Reckless Disregard. revisited' 10 Sport and the law journal 156
L.S.C. Hanson & C. Dernis 'Revisiting excessive violence in the professional sports arena: changes in the past
twenty years?' (1996) 6 Seton Hall Journal of Sports and Entertainment Law 127
M. James & F. Deeney 'The standard of care in sports negligence cases' 1 Entertainment Law Review 104
J.C.H. Jones & K.G. Stewart 'Hit Somebody: Hockey Violence, Economics, the law and the twist and
McSorley Decisions' (2002) 12 Seton Hall Journal of Sports and Entertainment Law 165
T. Kelvin 'Sports Personal Injury' (2005) 1 International Sports Law Review 61
A. Spitzzeri, 'The Negligent Tortfeasor’s Get Out of Jail Free Card: The Contact Sports Exception' Journal of
DuPage County Bar Association 2005 (www.dcba.org/brief/sepissue/2005/art10905.htm)
B. Svoranos "Fighting? Its all in a days work on the ice: Determining the appropriate standard of a hockey
players liability to another player" (1997) 7 Seton Hall Journal of Sports and Entertainment Law 487
R. Yasser 'In the heat of competition: Tort liability of one participant to another; why cant participants be
required to be reasonable?' (1995) 5 Seton Hall Journal of Sports and Entertainment Law 253
Websites
The Federation Press (2004) Blake v Galloway, Last Accessed 5 December 2005 at
http://www.federationpress.com.au/pdf/Blake%20v%20Galloway.pdf
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Case List
Agar v Canning (1965) 54 W.W.R. 302
Blake v Galloway [2004] 1 W.L.R. 2844
Caldwell v Maguire and Another [2002] P.I.Q.R. 6
Condon v Basi [1985] 1 W.L.R. 866
Donoghue v Stevenson [1932] AC 562
Gauvin v Clark 31 Ill. App. 3d 212
Mullin v Richards [1998] 1 All ER 920
Nabozny v Barnhill 31 Ill. App. 3d 212
Rootes v Shelton [1968] ALR 33
Smoldon v Whitworth and Another [1997] E.L.R. 249
Wilks v Cheltenham Homeguard [1971] 1 W.L.R. 668
Wooldridge v Sumner [1963] 2 Q.B. 43.
Statute List
Compensation Bill 2005
Word Count 2189