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Judgment in Caldwell v. Byrne: Duty of Care and Standard of Care in Sports, Lecture notes of Law

Royal Holloway, University of London (RHUL)Law

A court case, Caldwell v. Byrne, where the claimant, a professional jockey, suffered career-ending injuries caused by defendants' careless riding. the legal statements made by the court regarding the duty of care owed by each participant in a lawful sporting contest and the high threshold for liability. The court dismissed the reckless disregard standard and emphasized that the playing culture of sport is essential to sports-related litigation.

What you will learn

  • What is the duty of care owed by each participant in a lawful sporting contest?
  • What is the threshold for liability in sports cases?
  • How does the playing culture of sport impact sports-related litigation?

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The Standard of Care in
Sports Negligence Cases1
Caldwell v. Maguire and Fitzgerald [2001] EWCA 1054
Lord Woolf L.C.J., Judge and Tuckey L.J.J.
Facts
The claimant, a professional jockey, had suffered career-ending injuries
caused by an accident in a race. The two defendants were jockeys involved in
the accident. The incident which lead to the injuries involved four horses
ridden by the claimant, the defendants and a fourth jockey, Byrne. The two
defendants and Byrne were riding neck and neck, with Byrne taking the inside
line. Caldwell was close behind in fourth place as they approached a left-
handed bend. As they rounded the bend, the two defendants pulled ahead and
in front of Byrne, leaving him no room to maintain his inside line. Byrne’s
horse was unwilling to ride into the closing gap and veered outwards into
Caldwell’s path, causing him to fall and seriously injuring him.
The steward’s inquiry after the race found that the two defendants had
been guilty of careless riding because they had not left sufficient room for
Byrne to maintain his line on the inside rail. According to Rule 152 of the
Jockey Club’s Rules of Racing, a rider is guilty of careless riding where he
fails to take reasonable steps to avoid causing interference or causes
interference by misjudgement or inattention. Although careless riding is the
least serious of the interference rules, the defendants were both banned from
racing for three days.
Held
The Court of Appeal dismissed the appeal and affirmed the trial judge’s
decision that there was no negligent conduct in this situation. In coming to
their decision, both courts conducted a detailed review of the previous
judgments on sports-related negligence, paying particular attention to
Condon v. Basi [1985] 2 All ER 453 and Smoldon v. Whitworth [1997] ELR
249. The particular point at issue was whether a defendant participant
should be liable for damages because he had been negligent in all the
circumstances or only when he had acted with a reckless disregard for the
health and safety of the injured co-participant. In dismissing the reckless
disregard standard, the Court approved the five legal statements of the trial
judge. Firstly, that each participant in a lawful sporting contest owes to
Entertainment Law, Vol.1, No.1, Spring 2002, pp.104–108
PUBLISHED BY FRANK CASS, LONDON
11ent06.qxd 14/05/2002 14:16 Page 104
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The Standard of Care in

Sports Negligence Cases

1

Caldwell v. Maguire and Fitzgerald [2001] EWCA 1054

Lord Woolf L.C.J., Judge and Tuckey L.J.J.

Facts

The claimant, a professional jockey, had suffered career-ending injuries caused by an accident in a race. The two defendants were jockeys involved in the accident. The incident which lead to the injuries involved four horses ridden by the claimant, the defendants and a fourth jockey, Byrne. The two defendants and Byrne were riding neck and neck, with Byrne taking the inside line. Caldwell was close behind in fourth place as they approached a left- handed bend. As they rounded the bend, the two defendants pulled ahead and in front of Byrne, leaving him no room to maintain his inside line. Byrne’s horse was unwilling to ride into the closing gap and veered outwards into Caldwell’s path, causing him to fall and seriously injuring him. The steward’s inquiry after the race found that the two defendants had been guilty of careless riding because they had not left sufficient room for Byrne to maintain his line on the inside rail. According to Rule 152 of the Jockey Club’s Rules of Racing, a rider is guilty of careless riding where he fails to take reasonable steps to avoid causing interference or causes interference by misjudgement or inattention. Although careless riding is the least serious of the interference rules, the defendants were both banned from racing for three days.

Held

The Court of Appeal dismissed the appeal and affirmed the trial judge’s decision that there was no negligent conduct in this situation. In coming to their decision, both courts conducted a detailed review of the previous judgments on sports-related negligence, paying particular attention to Condon v. Basi [1985] 2 All ER 453 and Smoldon v. Whitworth [1997] ELR

  1. The particular point at issue was whether a defendant participant should be liable for damages because he had been negligent in all the circumstances or only when he had acted with a reckless disregard for the health and safety of the injured co-participant. In dismissing the reckless disregard standard, the Court approved the five legal statements of the trial judge. Firstly, that each participant in a lawful sporting contest owes to

Entertainment Law, Vol.1, No.1, Spring 2002, pp.104– PUBLISHED BY FRANK CASS, LONDON

every other participant a duty of care. Secondly, that the duty is to exercise all care that is objectively reasonable in the prevailing circumstances for the avoidance of injury to such co-participants. Thirdly, that the prevailing circumstances include that sport’s object, the demands made upon its contestants, its inherent dangers, its rules, conventions and customs and the standards, skills and judgement reasonably to be expected of a participant. Fourthly, that given the nature of sport and the test outlined above, the threshold for liability would be high and that proof of a mere error of judgement or a lapse of skill or care would not be sufficient to establish a breach of the duty. Finally, that in practice, it may be difficult to prove a breach of duty unless there is proof of conduct amounting to reckless disregard for a co-participant’s safety. However, this latter was an expression of the degree of evidence required to prove a breach, not a new legal standard of care. On the facts, the defendants had made errors of judgement or had acted with lapses of skill. However, this was only to be expected in a fast-moving sport such as professional horse racing and was not a sufficient degree of culpability to amount to negligent conduct.

Comment

This decision has had the effect of distancing the law from the notion that reckless disregard is the appropriate standard of care in sports by forcing courts to pay closer attention to the way that sport is actually played; not just by its rules but according to an unwritten code or playing culture. Although such an idea as playing culture is likely to outrage those who feel that any injurious act committed outside of the rules of a game should result in at least the tortious liability of the perpetrator, it is in fact a pragmatic response to the way that modern sport is actually played. The idea that reckless disregard was an appropriate standard of care to impose on sports participants can be traced back to the decision in Wooldridge v. Sumner [1963] 2 QB 43, where it was held that a competitor in a show jumping event could only be responsible in negligence for the injuries caused to a press photographer where he had shown a reckless disregard for the safety of the photographer. Over time, and with particular reference to case law from the United States, it came to be accepted in some quarters that Wooldridge had created a new standard of care for cases where injury was caused by the actions of a sports participant. The rationale, of particular importance to a defendant, is that the dynamics of sport, particularly contact sports and inherently dangerous sports such as horse racing, are so different from any other injury causing context that if sport is to continue in its current forms, then sports participants must be allowed to

INTERVENTIONS 105

be an inherent danger of professional horse riding, so also would a mistimed tackle in the various codes of football. The tackle may constitute a foul, but if it was only an error of judgement or through lack of skill, liability will not arise. However, until there is further litigation arising from sports, the legality of deliberate foul play will continue to trouble the courts. Their interpretation of the ‘rules, customs and conventions’ of a sport will prove to be a key issue in deciding the liability of defendant participants. Inevitably a degree of public policy will come into the equation, however, this alone does not provide sports participants with an obvious solution. For example, what will be the legal position in respect of a deliberate trip in a game of football? In Condon it was found to have been negligent. However, is a deliberate trip outside of the conventions and customs of modern football? It is clearly against the laws of the game and the spirit of those laws to intentionally foul another player. But is it accepted by those other players as an inherent part of the game? The answer to such a question is fraught with difficulties. FIFA’s Fair Play Charter would condemn such behaviour as cheating. Others would argue that it occurs so frequently that it must now be considered to be an integral part of the playing of the game. From a practical point of view, such instances of foul play only ever come to court where injury, usually serious injury, has occurred to the fouled player. Thus we are left with the even more contentious argument that such a foul is only contrary to the law where it causes injury. Legal liability dependent upon the degree of injury caused would be almost impossible to police. It would run the risk of being applied capriciously and inconsistently. Either the original challenge was negligently made, or it was not. The degree of injury caused should be relevant only to the amount of damages payable. Such a legal rule runs the further risk of allowing too much foul play to be considered to be an inherent part of the game. This would have the concomitant effect of only outlawing batteries rather than negligent foul play. Such a development would not be welcomed because of the associated adverse insurance implications. Only further litigation can clarify precisely when the law will become involved in incidents of participator violence. This decision is to be welcomed on many obvious grounds. It finally acknowledges that sports injuries should be subject to the same law as injuries incurred elsewhere. Further, it gives a good deal of guidance on what factors can be taken into account when trying to establish tortious liability. The list of factors is not meant to be exhaustive. It must be presumed that, where appropriate, the age and experience of the players would also be taken into account. Perhaps also so would the level at which the game took place. Although a variable standard of care depending on the

INTERVENTIONS 107

league in which the incident occurred was rejected in Elliott v. Saunders & Liverpool FC (1994) unreported decision of the High Court, the level of play must at least be a relevant prevailing characteristic when trying to establish the negligence of the defendant and the extent of the risk run by the claimant. Although it is dangerous to try and second-guess the courts, the likely outcome of this decision is that more acts associated with the playing of the game will be considered to be within the conventions and customs of the sport and therefore an inherent risk of that sport. Only those challenges that are clearly unacceptable and beyond the playing culture of the sport will be considered to be unlawful. Thus, instead of defendants claiming that they are able to show less care towards a co-participant, claimants will now have to establish that the defendant’s act was an unacceptable means of playing their sport. Future judgments will examine more explicitly which acts are acceptable until we reach the situation where we have a list of acceptable and unacceptable behaviour. This may have the effect of creating a degree of judicial certainty but will also create the potential for a knock-on effect that could see a changing of the rules of the game and the way that sport is played, either of which would be a dangerous precedent. The governing bodies of sport should take note of this decision. Too often in the past they have assumed that the law does not apply to them and that they are in some way immune from its application. Each time this notion is questioned, the law is found to apply and the governing bodies claim that they do not understand how this has happened. The constant development of the law of tort over the last 17 years can no longer be ignored. Either the governing bodies must take a more pro-active role in risk management in their sports or they will find that more cases like this will come before the courts. If that happens, it is only a matter of time before they find themselves joined as defendants for failing to adequately control their sports and protect their players from injury.

NOTE

  1. For an earlier version of this article by the same authors see, ‘Care on the Court’ (2001) 145 (35) Sol J 864.

MARK JAMES and FIONA DEELEY Manchester Metropolitan University

108 ENTERTAINMENT LAW