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Topic 6 Negligence Liability Lecture Notes
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Topic 6 notes for lecture on negligence liability
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TOPIC 6 NEGLIGENCE LIABILITY LECTURE NOTESPART ONE
Liability of sport participants
There are two types of liability, the claimant has burden of proof for the
following
Negligence
- Duty of Care
- Breach of Duty
- Causation
- Remoteness
Civil Battery
- Intentional application of force
DUTY OF CARE
Participants in sport owe a duty of care to other participants
Rootes v Shelton [1967] High Court of Australia ([1968] ALR 33)
The Australian court made a ground-breaking, at the time, decision that participants
in sport owed a duty of care to other participants. It’s the first time that decision was
made in the English-speaking common law. The claimant was water skiing, and the
defendant was the pilot of the boat, the defendant took a bend too fast, and the
claimant went too far out to the side and ploughed into a stationary boat at 30mph,
suffering severe injuries. Claimant sued the defendant, the court thus ruled that
participants owe a duty to other participants. The court provided two alternative
definitions of ‘duty of care’ outlined by the Australian case Rootes v Shelton [1967].
1. The duty expected was to take reasonable care not to cause harm to those
reasonably foreseeably at risk from the conduct. However, injuries caused by
inherent risks of participation in the activity would be considered to have been
consented to and therefore not actionable.
2. The duty expected was to take all reasonable care not to cause harm to those
reasonably foreseeably at risk from the conduct. However, the circumstances in
which the activity was taking place must always by below that which would
have been expected in the circumstances that negligence was established.
Condon v Basi [1985] Court of Appeal1
The defendant and the claimant were involved in a tackle during an amateur football
match. The defendant slide tackled the claimant, sliding from about 3 meters out,
with his leg significantly raised and his studs were pointed towards the claimant’s leg.
Due to the defendant’s actions, the claimant’s right leg broke. The defendant was
sent off and his actions were described as reckless and dangerous. The claimant
brought a claim of damages.
The Court of Appeal held that despite the lack of previous authority on there being a
duty of care owed by all participating players to other players in competitive sport.
This is objectively defined by all the relevant circumstances. If a player falls below the
standard of care reasonably to be expected of those player’s who are taking part,
then they are liable to anyone injured because of their actions.
During trial, Judge Wootton, thought there wasn’t any need to define the duty of care
as there was, in his opinion, an extremely clear breach of the reasonably expected
1
Sports Law, Mark James, page 78, 4.4.1.1 – The emergence of a sport-specific duty of care
, TOPIC 6 LECTURE NOTES NEGLIGENCE LIABILITY
standard of care by the defendant. In his eyes, the defendant had injured the claimant
by an act of serious and dangerous foul play. Thus, the claimant won at trial. In the
Court of Appeal, Donaldson MR accepted the trial judge’s conclusion and to help with
defining ‘duty of care’, he put forward two definitions of ‘duty of care’ outlined by the
Australian case Rootes v Shelton [1967].
3. The duty expected was to take reasonable care not to cause harm to those
reasonably foreseeably at risk from the conduct. However, injuries caused by
inherent risks of participation in the activity would be considered to have been
consented to and therefore not actionable.
4. The duty expected was to take all reasonable care not to cause harm to those
reasonably foreseeably at risk from the conduct. However, the circumstances in
which the activity was taking place must always by below that which would
have been expected in the circumstances that negligence was established.
Donaldson MR preferred the latter definition of the duty, which is also more in line
with the generalised definition for duty of care originally defined by Lord Aitken in
Donoghue v Stevenson [1932] AC 502 2. Although, allowing courts the freedom to
choose a definition they agree best with, combined with this Court of Appeal decision,
has left more uncertainty and confusion on the definition.
Since this case, it has been thoroughly accepted that a duty of care is owed by a
sports participant to each other participant in the contest. But the issue remained that
there was no precise definition of this duty. Any case that came to rial during the next
16 years added to this confusion, the mixing of issues like consent into the definition
of duty as required by the first alternative definition and by introducing elements of
the standard of care into this definition. This leaves the cases during 1985 and 2001
as being factually interesting, but hold very little legal value.
The leading case on Duty of Care: Caldwell v Maguire & Fitzgerald [2001]
Court of Appeal3
This case approved Holland J’s propositions concerning the definition of the duty of
care owed by sports participants, the Court of Appeal also clarified how the duty could
be breached. The CoA, for the first time in an English court room, that football players
owe a duty of care to other players.
Professional jockeys were competing in a race as they entered the final straight. 1 st
and 2nd placed horses, moved in towards the inside barrier causing the 3 rd placed
horse to move in front of the 4th placed horse, tripping it up and causing the jockey
(claimant) to be thrown from the saddle and becoming seriously injured. The claimant
took the defendants to court, the stewards were found guilty of careless riding and
banned for three days. The claimant was attempting to say that the defendants rode
their horses in such a way it caused his horse to veer to the side and that’s why he
was thrown from his horse and that’s why he was injured. The Court of Appeal held…
1. Each contestant in a lawful sporting contest (and a race) owes a duty of care to
each and all other contestants.
2. That duty is to exercise during the contest all care that is objectively reasonable
in the prevailing circumstances for the avoidance of infliction of injury to such
fellow contestants.
2
Ginger beer and snail found inside
3
Sports Law, Mark James, page 79, 4.4.1.2 – Defining sports negligence
2
, TOPIC 6 LECTURE NOTES NEGLIGENCE LIABILITY
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. (See section
4.4.2 for further discussion of the appropriate standard of care).
The claim failed that on the basis the interference from the other jockeys and their
horses was a commonly known and occurring risk of the sport and their actions did
not fall below the standard of riding expected by a professional jockey.
Phee v Gordon [2013] Court of Session, Scotland 4
“As the playing of golf on many courses involves potential conflicts between players
on different holes, it is not surprising that the courts have held that golfers may owe a
duty of reasonable care in their play to avoid injuring other people on the course.”
The defendant knew that there was a risk of golf balls overshooting the 18 th green and
hitting those walking behind it. Thus, the defendant was liable for a gold ball hitting
the claimant in the eye. The court held that the occupier must proactively assess risks
and implement appropriate remedial measures. In this situation it would be to
regulate priority between the two parts of the course. This would be important,
particularly when non-members visit the golf course and are unaware of the local
custom and practice taken and cannot do it to protect themselves from harm.
McMahon v Dear [2014] Court of Session, Scotland
“The necessary proximity existed between [D] and [C]. That being so, I can identify no
policy reason to hold that it would not be fair, just, and reasonable to impose on [D] a
duty of care towards [C].”
The Scottish court confirmed that golfers owe a duty of care to other golfers The
claimant was struck in the face with a golf ball. The court cannot find a policy a reason
why they cannot award the reward to the claimant.
Tylicki v Gibbons [2021] High Court
“It is accepted that there is a duty of care owed by jockeys to each other.”
The HC had very little to no doubt that there is a duty of care that jockeys owe to
another.
4
Sports Law, Mark James, page 179, 8.2.5.2.2 – Warnings
3
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