B e f o r e :
LORD JUSTICE SELLERS
LORD JUSTICE DANCKWERTS
and
LORD JUSTICE DIPLOCK
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Between:
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EDMUND LESTOCQ WOOLDRIDGE
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-V-
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HUGH SUMNER and THE BRITISH HORSE SOCIETY
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, W.C.2).
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Mr. R. MARVEN EVERETT. Q.C. and Mr. MICHAEL TURNER, (instructed by Messrs. E.P. Rugg & Co.)
appeared on behalf of the Appellant (First Defendant).
Mr. A.E. JAMES. Q.C. and Mr. J.E. ARTRO-MORRIS (instructed by Messrs Pollard, Stallabrass & Martin)
appeared on behalf of the Respondent-Plaintlff.
Mr._JAMES COMYN. Q.C. and Mr. CHRISTOPHER FRENCH (instructed by Messrs. Kimbers)
appeared on behalf of the Respondents the Second Defendants.
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HTML VERSION OF JUDGMENT
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LORD JUSTICE SELLERS: The accident which gave rise to the claim in this case occurred on 24th July 1959, in the course of the National Horse Show of that year held at the White City Stadium, London, and a distinctive feature of the case is that the judgment has held to blame a competitor of great experience and skill who was riding a heavy hunter of the highest quality and who was at the time exercising every endeavour to win the event, as in fact he did, and that the second defendants, who as the promoters of the show were required to take reasonable care to provide a suitable arena for the event, have been exonerated from all blame by the judgment of Mr. Justice Barry and no appeal has been raised against them. Where competitors or players break off from the event or game or divert clearly from the rules there may well be room for liability on them as some of the cases show, but the question arises whether liability should be placed on a competitor or player who is merely seeking to excel and to win, it being the very purpose on which he is engaged and the very endeavour which people have assembled to witness and applaud.
Another feature of the case is that it provides a striking illustration and reminder of how uncertain can be the raw material of a court's inquiry, the evidence. The event at the time of the accident was being closely watched by the judges of the competition, expert and experienced commentators and many interested spectators, informed in the ways of horses and in horsemanship, and yet from this most unusually qualified body of observers it has been difficult to get a wholly satisfactory account of what occurred, especially in the detail of the last and most vital stages. The competitor, Mr. Holladay, who was riding Mr Sumner's horse, "Work of Art," was best placed to say what he was seeking to do and what in fact the horse did and why, but Mr. Holladay was thrown heavily in the accident and was for a short time unconscious (although he returned to the arena to ride again and triumph on the same horse later in the evening) and on this ground it would seem that the learned judge did not accept his evidence although it was not without some support from other witnesses.
Mr. Holladay's evidence with the support it receives from at least two separate witnesses seems to me so probable, particularly in its explanation of the conduct of his horse, that, if I were entirely free and unfettered to decide, it is the version which would, I think, have commended itself to me. But many witnesses were called and the learned judge preferred those who gave a different version, not wholly consistent, and inadequate I think in material detail, but the witnesses relied on numerically greater than those who supported the first defendant. In all the circumstances but with some hesitancy I feel that I should follow broadly the facts relied on by the learned judge. I say "broadly" because it seems to me necessary to introduce more specifically into the facts on which liability has to be assessed the approximate distance the horse had travelled "in the straight" before the accident occurred.
There is one other feature which is unfortunate. The precise state of the arena could not be ascertained with that degree of accuracy as to detail which, as it chanced on the evidence relied on by the learned judge, became particularly important.
The White City arena for this show was a rectangular area of grass just over one hundred yards long and about seventy yards wide. At one end, the left side of the plan, was the collecting ring where the competitors entered. At the other end on the right, was a bandstand. The whole was surrounded by an oval running track and outside that was a greyhound racing track beyond which were the stands for the spectators. The perimeter of the arena was defined, at last in part, on the bottom or grand-stand side by tubs with plants or shrubs in them. These seem to have been placed on the grass two or three feet from the edge of the running track, Which had a kerb. It was not possible to ascertain where the first tub was placed from the bandstand end or precisely how many of them there were or by what intervals they were separated. It would appear that there were several tubs in line before a bench of seats was reached lying in lima with and between two tubs.
There were undoubtedly a number of jumps still standing in the arena but it is uncertain precisely where one was which mattered or which, on one view, might matter. Mr. Holladay on Work of Art was competing in the heavy hunter class at 4 p.m. and the judges required the horses to walk, trot, canter and gallop. The horses paraded and displayed themselves in a clock-wise direction and the size of the arena was somewhat limited for the galloping test. The presence of No. 10 jump (shown on the plan and in photographs but with no certainty as to its precise position) meant that the horses having rounded the bandstand end and having turned right on to the straight in front of the grand-stand had to pass through whatever gap there was between the jump and the perimeter as defined by the tubs. This was no doubt adequate if all went well but if it were narrowed by the presence of anyone near the jump and if a horse were to veer away from it because of someone there, as certainly one witness thought, then its course would be further over to the left or to the line of tubs.
It is also an important feature of this case, and it is that which gives zest and interest to such events, that throw first-class horses were competing and there was little to choose between them His Grand Excellency had won at York, defeating Mr. Holladay on Work of Art only a short time before. The other close competitor was Man of War. The most outstanding quality of Work of Art was his gallop and with proper zeal to win Mr. Holladay was anxious to display his gallop to the full when he came down the grand-stand straight and for this purpose he deliberately kept close in to the corner at the bandstand end. The Steward of the course was Brigadier Dunn, who was vary experienced in these matters. He was standing with the judges near to the centre of the arena.
The plaintiff, who was no doubt a skilled photographer and in that capacity was at the White City Stadium with his camera, was unfamiliar with and apparently wholly uninterested in horses. Just prior to the galloping of the heavy hunters he was told by Brigadier Dunn to take his camera and himself over the running track as the Brigadier could not gallop the horses whilst he was there on the track. Brigadier Dunn's view seems to have expressed an appropriate standard for the positioning of spectators or at least the plaintiff for this particular event. The plaintiff, possibly through some misunderstanding, only went back as far as a bench seat between two tubs. He placed his camera on its tripod behind a tub or between that tub and the end of a bench furthest from the band-stand end of the arena. He stood by the end of the seat. Miss Smallwood, a director of the company employing the plaintiff, sat on the end by him and on the other end of the same bench sat a Corporal-Major who was in charge of the arena squad. There may have been others on the bench. The evidence is oddly unsatisfactory about this, especially as the horse came plugging down towards this position and what was in front of him which might have affected his movements was important to consider. Undoubtedly something affected the horse as it came along at a gallop, and the presence of anything ahead, particularly if there ware any movement, may well have played its part, as more than one witness thought.
The competing horses - and there were several of them - were apparently galloping at the same time, spaced at intervals, down the back straight, round the bandstand end, and round to the right for the grandstand straight. It may be that Mr. Holladay's horse overtook one of the others before he turned right for the straight run. It would seem to have been going faster than the others. That it should go fast was the rider's intention. It was his chance to excel. As he went round the bandstand end Mr. Dorian Williams, experienced in horsemanship and a commentator on these events, heard Mr. Holladay say "Whoa; steady" to his horse, but Mr. Williams expressed the view that it was going too fast - that is, I think, going too fast to take the corner conveniently. But the horse did not run out of the grass arena on to the track at the corner. It clearly straightened up. If it had run out it would no doubt have counted against the horse, certainly if it had been out of control, for there was a rule to that effect, but there would have been no accident to the plaintiff or anyone else.
In my opinion "too fast" in these circumstances would only be an error of judgment of a highly competent rider all out to succeed. It is no doubt a misfortune for a skilled batsman to be bowled or caught in a supreme effort to hit a six. It is also a misfortune if, on the other hand, he succeeds in hitting a six and the ball hits someone over the boundary. The three-quarter who dives at speed over the line for a try at Twickenham, or on occasions at Wembley, or the opponent who dives into a tackle to prevent a try may and sometimes does roll over and come into heavy contact with the surrounding barrier sometimes to his own hurt and to the possible injury of an adjacent spectator. No court or jury would, I think, condemn such endeavour as negligent. (See, for instance, the verdict of the jury in favour of the drivers and owners of two cars that collided causing one to deviate and injure the plaintiff and the observations of the court in Hall v. Brooklands Auto Racing Club, ... [1933] 1 Kings Bench page 205). The riding of Mr. Holladay up to this point I would hold to fall into a like category. It was in the best tradition of sporting competitive endeavour.
The learned judge has found that the horse came "into the line of tubs", and there is evidence particularly of Mr. Coleman to support it, although from a distance as Mr. Coleman was on a bench seat on the perimeter beyond the plaintiff, a foot or so to one side might not be noticeable with a quick-moving horse. Mr. Holladay intended to come along about three feet from the tubs and his evidence was that he was making that course when something upset the horse and caused it to turn left and plunge over several tubs. After that it seems to have struck one of the tubs and possibly the kerb of the track and came down at least to its knees on the left or track side of the seat striking the plaintiff, who, in an endeavour to pull Miss Smallwood away, stepped or fell back towards the track into the way of the horse as it veered off to the left.
On the learned judge's finding, as I read the judgment, Mr. Holladay was only a few feet off course, that is to the left, when he was straightened up, and that would seem to be all that followed from going "too fast."
The accident happened fairly well up to the centre of the arena and there were, it would seem, some 25 or more yards travelled in the straight. Neither the evidence nor the judgment, I would say with respect, fills in this distance travelled in any acceptable way. If Mr. Holladay's version is rejected there is really nothing to take its place. One may say roughly what the horse did but not why he did it. The witnesses who thought the momentum had taken the horse out on to the track at the first tub were not and could not, I think, be accepted. The better and accepted view was that the horse was in line with the tubs, that is straight, and both Mr. Holladay and the horse, if all had been well (speed no longer mattered), would have avoided the tubs on one side or the other and the right-hand or course side was the desired course for the competitor and whether his evidence can be accepted or not it would seem that his instinct would have been to take the horse to the right. Something caused the horse to take the course it did and until it had advanced over two or three tubs and covered the intervening space there was no danger to the plaintiff or those in his vicinity. Even then if the plaintiff had been more conversant with horses and kept still where he was, the probabilities are that the horse would have avoided him.
I think the confused and uncertain evidence of the last twenty-five yards reveals on the probabilities the horse temporarily in control and not the rider and is insufficient to establish that Mr. Holladay deliberately altered the course of the horse from running out on to the track to the right into the position where he knew or ought to have known the plaintiff and others were, which is the basis of the finding of liability by the learned judge. It is the kind of mishap which might happen without negligence in the hunting field or on a racecourse and even with mechanical vehicles with no mind of their own when driven in racing competitions. Those who promote these events cannot be unmindful of the unpredictable conduct of horses however well trained and however skilfully ridden, especially in the excitement of competition or when confronted with some unexpected movement on or about their course.
This Horse Show was no doubt on a general view admirably managed and carefully planned. It appears that the arena squad had usually occupied the bench where the Corporal-Major was sitting but they were used to horses and were familiar with all that was taking place. The plaintiff was not interested in this event and was not watchful or mindful of what was taking place and it would seem in his inexperience he ought to have been in the position to which Brigadier Dunn intended him to go while the galloping was taking place.
In all the circumstances, in so far as the judgment found that Mr. Holladay was going "too fast" I would not hold this to be negligence, and in any case its effect had ceased when the horse was straightened up, as it was, some twenty-five yards before the accident; and with regard to the second finding on which the judgment was based, I am unable to find fault in Mr. Holladay amounting to negligence. It was, I think, the horse's course and not his which took them along the line of tubs instead of to the right of that line and for this I do not think he can be blamed.
There is but little authority with regard to the liability of competitors or players for injury to others. If they step out of or break off from the game or event temporarily and have a fight and injure someone in the neighbourhood they may be liable Payne and Payne v. Maple Leaf Gardens Ltd - a Canadian case - ( [1949] 1 Dominion Law Reports page 369), and likewise if a golfer not in the course of play swings a club and injures a person standing by Cleghorn v. Oldham ( (1927) 43 Times Law Reports page 465).
I recall an unreported case which I tried on the Northern Circuit where I found negligence against a golfer who hit with a golf ball one of the players in a fourball in which the defendant was playing. The defendant, who on this occasion was not exhibiting great skill, had, at a short hole, hit his tee shot no further than the ladies' tee. His second shot went off to the right into the rough. The two better players who had hit their balls up to the apron of the green went to look for the defendant's ball. After a short search the defendant said that he was "out of it" and if he found his ball he would pick it up and he asked his companions to play on. As they went towards the green and when they were in a dip in the ground the defendant found his ball and thereupon placed it and played it into the two men, hitting one of them in the eye as he turned round on the defendant's cry of "Fore." The defendant's conduct was outside the game, was unnecessary for it, and showed a complete disregard for the safety of those who he knew were in the line of danger from being hit from an unskilled instead of a lofted shot over their heads.
On the other hand, in another unreported case of a later date tried on the South Eastern Circuit I found no liability in a driver of a Jaguar car on a road in France competing in the Monte Carlo Rally in January one year when, as he was changing gear at about 75 miles per hour from third to top, the car skidded on some unexpected "black" ice on the road and after much manoeuvring went off the road into a tree and badly injured one of the crew of three, who was sitting alongside the driver and acting as navigator. The crew rotated their duties. If it had been the plaintiff's turn to drive he would probably have been doing a high speed also as it was a requirement of the competition and they were all skilled and experienced drivers. The plaintiff also was unaware of the icy state of the road and had just previous to the accident said to the driver "You know you have another notch" - to remind him that he was not in top gear. If the road had been known to be icy so that it would clearly have been reckless or foolhardy for even a skilled driver in the rally to travel so fast then the decision would, and I think should, have been different.
In O'Dowd v. Frazer-Nash ([1951] Weekly Notes page 172) Mr. Justice McNair exonerated from blame the driver of a motor-car in a road race in Jersey who crashed at speed owing to a failure of brakes, killing the plaintiff's husband.
In my opinion a competitor or player cannot in the normal case at least of competition or game rely on the maxim volenti non fit injuria in answer to a spectator's claim, for there is no liability unless there is negligence and the spectator comes to witness skill and with the expectation that it will be exercised. But provided the competition or game is being performed within the rules and the requirement of the sport and by a person of adequate skill and competence the spectator does not expect his safety to be regarded by the participant.
If the conduct is deliberately intended to injure someone whose presence is known, or is reckless and in disregard of all safety of others so that it is a departure from the standards which might reasonably be expected in anyone pursuing the competition or game, then the performer might well be held liable for any injury his act caused. There would, I think, be a difference, for instance, in assessing blame which is actionable between an injury caused by a tennis ball hit or a racket accidentally thrown in the course of play into the spectators at Wimbledon and a ball hit or a racket thrown into the stands in temper or annoyance when play was not in progress.
The relationship of spectator and competitor or player is a special one, as I see it, as the standard of conduct of the participant, as accepted and expected by the spectator, is that which the sport permits or involves. The different relationship involves its own standard of care.
There can be no better evidence that Mr. Holladay was riding within the rules than that he won, notwithstanding this unfortunate accident in the course of the event, and I do not think it can be said that he was riding recklessly and in disregard of all safety or even on this evidence without skill.
I do not consider the authorities such as Hall v. Brooklands Auto Racing Club ([1933] 1 King's Bench page 205) relating to the liability of occupiers of premises or promoters of sporting activities, as there has been no appeal against the judgment in favour of the British Horse Society.
I would allow the appeal and enter judgment for the first defendant also.
LORD JUSTICE DANCKWERTS: On the 24th July, 1959, the plaintiff, Mr Wooldridge, a professional photographer, was knocked down and severely inured in the course of a competition for heavy-weight hunters at the White City stadium by a horse called Work of Art, owned by the first defendant, Mr Hugh Sumner, and ridden by Mr Ronald Holladay on his behalf. Both Mr. Holladay (who had ridden the horse in many competitions) and the horse were experienced in this class of competition. The result was likely to be a close thing between three well known horses, Work of Art, His Grand Excellency, and Man-o'-War. Hunters are expected to be able to gallop, and Work of Art's outstanding quality was his ability to gallop.
The Plaintiff was not a paying spectator on the 24th July, 1959. The spectators were in the stands, which were divided from the competition arena by a space called "the forecourt" and a greyhound racing course, which was itself separated by a wire mesh fence from an athletic track, composed of red cinders, which adjoined the competition arena. The competition arena was an area of grass and along the edge of it there was a low cement ridge and an arrangement of cables. About two feet from the edge of the grass arena there were a series of tubs with rhododendrons or other shrubs, probably about ten yards apart, and at some points there were benches in the line of the tubs. The horses came round clockwise.
The plaintiff was employed by the directors of a company who wished to make a film, but at the time of the accident he was not taking any pictures because he had run out of film. He was standing beside the furthest end of a bench from the direction from which the horses would come, and on the bench nearest to the plaintiff was a Miss Smallwood, a director of the company, and beyond her in the direction of the horses' approach were a corporal-major and other soldiers concerned with the arrangement of jumps and similar matters. None of these persons was injured, but the plaintiff, who had been taking little interest in the proceedings and was not experienced in regard to horses, took fright at the approach of the galloping Work of Art, and attempting unsuccessfully to pull Miss Smallwood off the bench, himself stepped or fell back. into the course of the horse which passed three or few feet behind the bench, and was knocked down.
The rider was thrown and taken to hospital, as well as the plaintiff, and the horse nearly came down but seems to have recovered and made its way quietly to the collecting ring. The horse was brought back into the ring and won this event. In the evening Mr. Holladay (who, as well as soma concussion, suffered a broken wrist) came back to ride Work of Art again and the horse was adjudged Supreme Champion in its class.
Although there were a number of eye-witnesses of the accident from different positions, most of whom were experts in regard to horse-shows and the nature of horses, a remarkable feature of this case is the variation in their accounts of an occurrence which, of course, took place in a very short space of time. The learned judge was satisfied that all the witnesses were endeavouring to give him a true account of what happened and did not question their veracity. It is possible from these different accounts to ascertain in outline the somewhat unexpected course which this horse took, but doubts remain as to the details and the actual cause of the mishap.
It appears that on the horn being sounded for the horses to gallop, Work of Art was on the far side of the arena and was put into a gallop and came round the south-east end of the arena (where there was a bandstand) at a fast pace, and after rounding the end of the arena came on to the line of the tubs. The horse appears to have jumped two of the tubs and knocked over a third and then turned off the line of the tubs so as to pass three or four feet behind the bench at the end of which the plaintiff was standing (with his camera by a tub further on). What is far from clear is why the horse took that course.
Some of the witnesses thought that Mr. Holladay took the horse round the end of the arena at far too fast a pace, and the learned judge found that Mr. Holladay brought the horse into the corner much too fast, that he allowed it to go on at such a speed that the velocity carried it beyond the course and into the line of tubs, and he said that he felt that that fact alone would probably constitute negligence on Mr. Holladay's part. In the circumstances, the learned judge came to the conclusion that the accident was caused by the negligence of Mr. Holladay in the management of Work of Art and awarded damages to the plaintiff against the first defendant.
The learned judge, however, said that no one attributed any sort of moral blame for this accident either upon the plaintiff or upon the rider of Work of Art or upon the organisers of the show. The learned judge also said that no one suggested that this was anything other than an isolated lapse on Mr. Holladay's part, for which there was a good deal of excuse because this was a contest in which three very well known horses were involved and Mr. Holladay was very anxious indeed that his horse should win it. His horse's most outstanding quality was its gallop and Mr. Holladay wished not to race his fellow-competitors but to cover the ground a good deal quicker than they did and in doing so he took the corner as wide as possible in order to give himself the longest possible gallop up to the judges along the grandstand side of the course. I find these observations, with all respect to the learned judge, somewhat inconsistent with his conclusion.
The presentation of this case before this court is a rehearing and the extent to which an appellate court is entitled to interfere with the findings of fact of a court of first instance has been discussed by the House of Lords in Benmax v. Austin Motor Co. Ltd ([1955] Appeal Cases at page 370) in which the distinction between the finding of a specific fact and a finding of fact which is really an inference from the facts specifically found is pointed out. Moreover, in the present case there is really no question depending upon the credibility of the witnesses, for the learned judge has specifically found that all the witnesses were endeavouring to give a true account of what happened.
I share the doubts of Lord Justice Diplock (whose judgment I have had the advantage of reading) whether the conclusion that the horse was not caused to swerve by something the horse saw or thought he saw so that the horse turned towards the running track instead of turning inwards towards the grass arena in the last and vital moments, was correct. After all, we are unable to have the story from the horse's mouth or to see what the horse may have seen. It is well known that quite small things may seem to a horse unexpected and alarming.
But I find it unnecessary to pursue this speculation further because, like Lord Justice Diplock , I have reached the firm conclusion that any excessive speed round the end of the arena by Work of Art and his rider was not the cause of the accident, and the judge was, in my view, mistaken in the inferences which he drew from the facts which he found.
The effect of the evidence and the inferences which ought to be drawn from the facts found are so fully and admirably analysed by Lord Justice Diplock in his judgment that it is quite unnecessary for me to go into these in detail in my judgment. I agree entirely with the conclusions which he has reached. I would only like to emphasise that a horse is not a reliable mechanical contrivance, compelled to answer the directions which may be conveyed to it. As was pointed out by the knowledgable witnesses in the case, the horse has its own natural mind and impulses, and is the unpredictable partner in the combination of horse and rider. If Mr. Holladay brought the horse at too fast a pace round the end of the arena, I cannot think that it can have been more than a slight error of judgment, which did not in fact cause the accident (for the horse was not carried out on to the running track by its velocity) and, in my view, Mr. Holladay was not guilty of negligence either in the speed at which he rode the horse or in his attempts to bring the horse into a course which would pass inside the line of the tubs and the benches and be in the view of the judges.
Further, in taking up his position in a place where spectators were not allowed in the afternoons and which must necessarily be in close proximity to horses proceeding at a gallop, in my opinion the plaintiff must be taken to accept the risk of something going wrong in the course of an event with resulting danger to persons so near to the line to be traversed by the competitors, even though he happened to be inexperienced in regard to competitions of this kind.
As Lord Oaksey said in Bolton v. Stone ([1951] Appeal Cases at page 850):
"The standard of care in the law of negligence is the standard of an ordinarily careful man, but in my opinion an ordinarily careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen. Many foreseeable risks are extremely unlikely to happen and cannot be guarded against except by almost complete isolation."
Mr. Holladay's duty to his employer was to utilise the qualities of the horse so as to show it to the best advantage. This involved the horse going at a fast gallop. Decisions have to be taken in a split second and it is impossible for a rider, as it seems to me, in such circumstances to calculate every possible result in his mind. He could not possibly be expected to foresee that someone would jump out from the line of the bench into the track of the horse. Persons who stand so close to the scene of such events must take the risk of something going wrong in the ordinary course of the sport, and which is a risk incidental to it. This clearly appears from the decision of this court in Murray v. Harringay Arena Ltd ([1951] 2 King's Bench at apge 529).
I also would allow the appeal.
LORD JUSTICE DIPLOCK: The trial judge based his findings of negligence against the rider upon his conduct
(a) in negotiating the corner at the bandstand end of the arena leading into the straight in front of the line of shrubs, and
(b) after the horse had got round the corner and come into the line of shrubs.
The relevant events took place in the course of a few seconds; all or some of them were seen by twelve different witnesses including the rider and the injured man, and, as is inevitable when honest witnesses give their recollections of what occurred in a very brief space of time, there were wide divergences in their respective accounts. In such a case an appellate court will not lightly disturb the findings of the trial judge as to what in fact occurred. The conviction which the evidence of a particular witness carries may depend as much upon the way he says it as upon what he actually says. The way in which each witness gives his evidence, what he says and the intrinsic probability of the events which he asserts took place, are all factors to be weighed in determining what are the true primary facts, and while an appellate court is in as good a position as the trial judge to evaluate the two latter factors the trial judge alone is in a position to assess the first. Although, therefore, a detailed study of the transcript of evidence, taking what I hope is no more than legitimate judicial notice of the vagaries of equine behaviour, would lead me to the conclusion that the strong probability was that the horse shied into the line of tubs after it was already galloping down the straight on the arena side of the shrubs I am, I think, bound by the specific findings of Mr. Justice Barry that this did not occur.
I therefore approach the case upon the basis that Mr. Holladay misjudged the speed at which Work of Art on this occasion could take the corner, and that consequently its centrifugal force caused it to follow an are of wider radius than Mr. Holladay intended which brought it into or across the line demarcated by the tubs of shrubs. The learned judge describes the speed as "much too fast" and says that that fact alone would probably constitute negligence on the part of Mr. Holladay. That it was in the event too fast to enable the horse to take the corner on an are which would bring it into the straight upon the course intended by Mr. Holladay, parallel to the line of shrubs and some three feet on the arena side of them, is a finding of primary fact which this court cannot, I think, disturb; but that it was going "much too fast" is an inference from other facts on which the learned judge's findings are much less specific. He accepted, without distinguishing between their different accounts, the evidence of seven witnesses who saw all or some of the events which occurred after the horse had reached the line of shrubs. Two of them saw the whole thing, one of whom, Mr. Coleman, was particularly well positioned to do so, say that the horse came straight down the line of shrubs, jumping them, brushing through them or colliding with them, and that it had negotiated three or four shrubs before swerving to the left in to the cinder track where the plaintiff steeped or stumbled back into its path. This account of what happened after the horse had got to the line of shrubs was corroborated by the evidence of the plaintiff himself, of Mr. Holladay, of Mrs. Holladay and of the defendant Mr. Sumner. From the learned judge's reference to Mr. Holladay's carrying the horse along the line of shrubs, it is I think plain that he accepted that this was what happened. Mr. James, for the respondents, so contends or concedes and I accept it as a finding of primary fact which this court should not disturb.
But if it be accepted it must follow that Mr. Holladay had completed his right-angle turn and got his horse straight or almost straight facing towards the collecting-ring end of the arena by the time he reached the line demarcated by the shrubs and in all probability at a point on that line immediately in front of a shrub. Had he been travelling at a speed too great to enable him to straighten his horse by the time he got to the line demarcated by the shrubs, its momentum must have carried it out to the cinder track side of the line of shrubs, and if it were then brought round to jump, as it did, the next shrub in the arena, its momentum by the time it jumped that would have been carrying it towards the arena side of the line of shrubs and the accident would not have occurred on the cinder track one or two shrubs further down towards the collecting-ring end of the arena, as the judge found that it did. Mr. Holladay had thus misjudged the radius of the are in which he could bring round his horse at the speed at which it was travelling by no more than four feet. It is, I think, permissible to take judicial notice that there are many factors other than mere speed which affect the ability of a ridden horse to negotiate a corner: its conformation, its fitness, its schooling, its experience of the show ring, its familiarity with its rider and its responsiveness to his accustomed aids (which is not invariably uniform) and whether it remains balanced throughout the manoeuvre. The rider alone can tell how all these factors, particularly the last two, are operating at any particular moment, and if, as in this case, the rider's recollection is rejected for reasons which reflect in no way on his truthfulness, the only cogent evidence as to the reasons why the manoeuvre was unsuccessfully executed is that of expert horsemen, accustomed themselves to executing that kind of manoeuvre on that class of horse, and drawing inferences from what they were able to observe. It is not without significance that of the four witnesses qualified to express an expert view about the extent to which excessive speed was a factor and whose evidence the judge accepted, three Mr. Watney, Mr. Dorian Williams and Brigadier Dunn, were under the impression that the horse had been travelling on an are which brought it straight out to the track jumping only one shrub in the line of shrubs on its way. The other witness, Major Field Marsham, whose evidence is less definite on this point than that of the others, thought that he recalled the horse tripping over a second shrub after jumping one. If their recollection of what they saw was accurate, it may well be that the first three saw the horse jump the last tub which it jumped and did not realise that it had previously negotiated at least two others in a straight line with that. Even Major Field Marsham's recollection does not give a picture of the horse going straight down the line of shrubs, jumping, brushing through or stumbling over at least three before it ran out on the running track at all. The views of those witnesses as to how in fact the horse took the corner must have been coloured by what they thought they saw of the course that it took. The learned judge has found facts inconsistent with its having taken that course upon which their views as to its speed were, at least in part, founded and consistent only with its having taken the corner at a lesser speed than would have brought it upon the course which at least the first three of them thought it took.
If the judge's finding that "Mr. Holladay brought this horse into the corner much too fast" means more than that Mr. Holladay misjudged the speed at which Work of Art was in the event able to take the corner and that in consequence it followed an are of a radius some four feet longer than he intended, it is no more than an expression of the judge's own opinion. To the extent that it finds support in the view expressed by expert observers, they were observers whose impression of the course taken by the horse was found by the judge to be erroneous, and even they were not prepared to qualify Mr. Holladay's action as anything more than injudicious riding or an error of judgment.
The judge's next finding of fact is that "this horse when it crashed into the line of tubs would have gone out on the cinder track and it would not, at least, have done anyone any harm had Mr. Holladay allowed it to do so." Any statement of what would have happened but did not is an inference from primary facts which this court can examine. The judge found, and it was in this court common ground, that after the horse "crashed into" or jumped the first tub which it came to in the line of tubs it went straight along the line jumping or colliding with at least two other tubs or shrubs before it veered out on to the cinder track and struck the plaintiff. Whether the last shrub it jumped was the one nearest to the plaintiff on the bandstand side or, as is more probable, having regard to the evidence and phlegmatic conduct of Corporal-Major Phillips, the one beyond that, is not clear, nor does the judge make any finding as to this. There is no evidence as to the exact distance between each tub but it would appear to be something like ten yards, and it appears to have been accepted at the trial, as it has in this court, that Work of Art had blundered some twenty to thirty yards along the line of shrubs before the collision took place. As I have already pointed out, the natural inference from this is that any momentum tending to take the horse out on to the cinder track must have been overcome by Mr. Holladay by the time it was jumping the first shrub. Once it had straightened its course, as it had by then, the only direction in which its momentum would carry it was forward in a straight line down the shrubs. So far as the mechanics of the matter are concerned, the horse if left to itself at this stage would be equally likely to pass to the right or left of the shrubs which now lay directly in front of it. The most unlikely thing for it to do was what it in fact did, to go straight over or through at least two narrow obstacles in the form of shrubs in tubs which it could have avoided by swerving a mere foot or so to the left or right. It cannot possibly be suggested that Mr. Holladay intended the horse to take this extraordinary course. On the left of the shrubs at the edge of the cinder track were a kerb and cables on which one witness thought the horse did in fact trip when it eventually swerved on to the cinder track immediately before the collision. This presented a hazard and there was no hazard on the arena side of the shrubs. I should in any event have assumed that Mr. Holladay was trying to bring the horse back on to the course to the right. It would be the instinctive reaction of a horseman, and Mr. Holladay, although he disagrees as to the circumstances which led to his horse getting into the line of shrubs, says that until the moment when he parted company with Work of Art he was trying to get it back to the arena side of the shrubs. In my view the only possible inference from the facts found by the judge as to the course taken by the horse after encountering the first shrub in its path is that from that moment at the latest the horse was out of control, and what it would have done had Mr. Holladay abandoned every instinct of a horseman and made no attempt to control it or had attempted to turn it to the left on to the cinder track is pure speculation.
It seems to me that the learned judge, in making his finding that the horse "when it crashed into the line of tubs would have gone out on to the cinder track had Mr. Holladay allowed it to do so," had forgotten that the seven witnesses whose account he said he accepted had in fact given versions which conflicted in a respect which was crucial on this point. Mr. Watney and Brigadier Dunn and Mr. Dorian Williams, as I have pointed out, thought that the horse had in fact gone out on to the cinder track after jumping the first tub it encountered and had remained on the cinder track side of the tubs until the collision. If this had in fact happened the accident might well have been attributable to an attempt by Mr. Holladay to bring the horse back into the course from the cinder track twenty or thirty yards from where it got on to the cinder track through a gap in the shrubs which was occupied by a bench and spectators. Brigadier Dunn's answer in cross-examination that the risk to spectators of doing this was obvious, on which Mr. James strongly relied, was I think clearly based upon the hypothesis that this was in fact what happened. But to reject this part of these witnesses' account of the accident and to accept that the horse after jumping the first shrub it encountered went straight up the line of shrubs involves also accepting that the control exercised by Mr. Holladay to prevent the horse going out on to the cinder track had already been effective by the time Work of Art "crashed into the line of tubs." If it were blameworthy of him to try to prevent the horse going on to the cinder track the blame attaches earlier in time before the horse encountered its first shrub and went out of control.
Accepting then the primary facts as found by the trial judge but not those inferences which he drew from them and which upon analysis of the evidence I think are unjustified, one is left with two acts or omissions by Mr. Holladay which were causative factors in the accident. The first was the speed at which he caused Work of Art to negotiate the bend, the second was his omission at some moment before he reached the line of tubs to let the horse run out on to the cinder track.
It is a remarkable thing that in a nation where during the present century so many have spent so much of their leisure in watching other people take part in sports and pastimes there is an almost complete dearth of judicial authority as to the duty of care owed by the actual participants to the spectators. In Cleghorn v. Oldham (43 Times Law Reports at page 465.) the act relied on as constituting negligence by a golfer was not done in the actual course of play and the case, which was tried by a jury and only very briefly reported, throws little light upon the extent of the duty of care. So, too, in the Canadian case of Payne & Payne v. Maple Leaf Gardens Ltd. ([1949] 1 Dominion Law Reports at page 369) the negligent act was not committed in the course of play but in the course of a private fight between two players over the possession of an ice hockey stick at the opposite side of the arena to that in which the game was going on at the relevant time. There have been other cases - Hall v. Brooklands Auto-Racing Club ([1933] 1 King's Bench at page 205.) itself is one of them - in which the actual participants in the game or competition have been sued as well as the occupiers of the premises on which it took place, but juries have acquitted the participants of negligence and the oases are reported only upon the duty owed by an occupier of premises to invitees. Such duty is not based upon negligence simpliciter but flows from a consequential relationship between the occupier and the invitee; there is thus no conceptual difficulty in implying a term in that consensual relationship (which in the reported cases has in fact been a contractual relationship) that the occupier need take no precautions to protect the invitee from all or from particular kinds of risks incidental to the game or competition which the spectator has come upon the premises to watch.
In the case of a participant, however, any duty of care which he owed to the spectator is not based upon any consensual relationship between them but upon mere "proximity," if I may use that word as a compendious expression of what makes one person a "neighbour" of another in the sense of Lord Atkin's definition in Donoghue v. Stevenson ([1932] AC 562 at page 580) as expanded in Bourhill v. Young ([1943] Appeal Cases at page 92) Nevertheless, some assistance is to be gathered from the invitee cases, for the term as to the duty of the occupier to take precautions to prevent damage being sustained upon the premises by his invitee, which was implied at common law, was closely analogous to the duty a breach of which constitutes negligence simpliciter, namely, "to use reasonable care to ensure safety" (Hall v. Brooklands Auto Racing Club, per Lord Justice Scrutton at page 14, "that reasonable skill and care have been used to make the premises safe" (ibid per Lord Justice Greer at page 223).
To treat Lord Atkin's statement "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour,"([1932] AC 562 at page 580) as a complete exposition of the law of negligence is to mistake aphorism for exegesis. It does not purport to define what is reasonable care and was directed to identifying the persons to whom the duty to take reasonable care is owed. What is reasonable care in a particular circumstance is a jury question and where, as in a case like this, there is no direct guidance or hindrance from authority it may be answered by inquiring whether the ordinary reasonable man would say that in all the circumstances the defendant's conduct was blameworthy.
The matter has to be looked at from the point of view of the reasonable spectator as well as the reasonable participant; not because of the maxim volenti non fit injuria, but because what a reasonable spectator would expect a participant to do without regarding it as blameworthy is as relevant to what is reasonable care as what a reasonable participant would think was blameworthy conduct in himself. The same idea was expressed by Lord Justice Scrutton in Hall v. Brooklands:
"What is reasonable care would depend upon the perils which might be reasonably expected to occur, and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils."
A reasonable spectator attending voluntarily to witness any game or competition knows and presumably desires that a reasonable participant will concentrate his attention upon winning, and if the game or competition is a fast-moving one, will have to exercise his judgment and attempt to exert his skill in what, in the analogous context of contributory negligence, is sometimes called "the agony of the moment." If the participant does so concentrate his attention and consequently does exercise his judgment and attempt to exert his skill in circumstances of this kind which are inherent in the game or competition in which he is taking part, the question whether any mistake he makes amounts to a breach of duty to take reasonable care must take account of those circumstances.
The law of negligence has always recognised that the standard of care which a reasonable man will exercise depends upon the conditions under which the decision to avoid the act or omission relied upon as negligence has to be taken. The case of the workman engaged on repetitive work in the noise and bustle of the factory is a familiar example. More apposite for present purposes are the collision cases, where a decision has to be made upon the spur of the moment. "A's negligence makes collision so threatening that though by the appropriate measure B could avoid it, B has not really time to think and by mistake takes the wrong measure. B is not to be held guilty of any negligence and A wholly fails." (Admiralty Commissioners v. S.S. Volute ([1922] 1 Appeal Cases 129 at page 136) A fails not because of his own negligence; there never has been any contributory negligence rule in Admiralty. He fails because B has exercised such care as is reasonable in circumstances in which he has not really time to think. No doubt if he has got into those circumstances as a result of a breach of duty of care which he owes to A, A can succeed upon this antecedent negligence; but a participant in a game or competition gets into the circumstances in which he has no time or very little time to think by his decision to take part in the game or competition at all. It cannot be suggested that the participant, at any rate if he has some modicum of skill, is, by the mere act of participating, in breach of his duty of care to a spectator who is present for the very purpose of watching him do so. If, therefore, in the course of the game or competition, at a moment when he really has not time to think, a participant by mistake takes a wrong measure, he is not, in my view, to be held guilty of any negligence.
Furthermore, the duty which he owes is a duty of care, not a duty of skill. Save where a consensual relationship exists between a plaintiff and a defendant by which the defendant impliedly warrants his skill, a man owes no duty to his neighbour to exercise any special skill beyond that which an ordinary reasonable man would acquire before indulging in the activity in which he is engaged at the relevant time. It may well be that a participant in a game or competition would be guilty of negligence to a spectator if he took part in it when he knew or ought to have known that his lack of skill was such that even if he exerted it to the utmost he was likely to cause injury to a spectator watching him. No question of this arises in the present case. It was common ground that Mr. Holladay was an exceptionally skilful and experienced horseman.
The practical result of this analysis of the application of the common law of negligence to participant and spectator would, I think, be expressed by the common man in some such terms as these:
"A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act may involve an error of judgment or a lapse of skill, unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety."
The spectator takes the risk because such an act involves no breach of the duty of care owed by the participant to him. He does not take the risk by virtue of the doctrine expressed or obscured by the maxim volenti non fit injuria. That maxim states a principle of estoppel applicable originally to a Roman citizen who consented to being sold as a slave. Although pleaded and argued below it was only faintly relied upon by Mr. Everett in this court. In my view, the maxim in the absence of expressed contract has no application to negligence simpliciter where the duty of care is based solely upon proximity or "neighbourship" in the Atkinian sense. The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk (see Kelly v. Farrans Ltd ([1954] Northern Ireland Reports page 41) per Lord MacDermott at page 45, and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran. (Osborne v. London and North Western Railway,(1888) 21 Queen's Bench page 220 per Mr Justice Wills approved in Letang v. Ottawa Electric Railway Co. ([1926] Appeal Cases page 725) In Dann v. Hamilton ([1939] 1 King's Bench page 509)Mr Justice Asquith expressed doubts as to whether the maxim ever could apply to license in advance a subsequent act of negligence, for if the consent precedes the act of negligence the plaintiff cannot at that time have full knowledge of the extent as well as the nature of the risk which he will run. Mr Justice Asquith however, suggested that the maxim might nevertheless be applicable to cases where a dangerous physical condition had been brought about by the negligence of the defendant, and the plaintiff with full knowledge of the existing danger elected to run the risk thereof. With the development of the law of negligence in the last twenty years a more consistent explanation of this type of case is that the test of liability on the part of the person creating the dangerous physical condition is whether it was reasonably foreseeable by him that the defendant would so act in relation to it as to endanger himself. This is the principle which has been applied in the rescue cases (see Cutler v. United Dairies (London) Ltd ([1933] 2 King's Bench page 297) and contrast Haynes v. Harwood ([1935] 1 King's Bench page 146) and that part of Mr Justice Asquith's judgment in Dann v. Hamilton dealing with the possible application of the maxim to the law of negligence which was not approved by the Court of Appeal in Ward v. Hopkins. ([1959] 3 All England Reports page 225) In the type of case envisaged by Mr Justice Asquith, if I may adapt the words of Lord Justice Morris (as he was then) in Ward v. Hopkins (at page 233) the plaintiff could not have agreed to run the risk that the defendant might be negligent for the plaintiff would only play his part after the defendant had been negligent.
Since the maxim has in my view no application to this or any other case of negligence simpliciter, the fact that the plaintiff owing to his ignorance of horses did not fully appreciate the nature and extent of the risk he ran did not impose upon Mr. Holladay any higher duty of care towards him than that which he owed to any ordinary reasonable spectator with such knowledge of horses and vigilance for his own safety as might be reasonably expected to be possessed by a person who chooses to watch a heavyweight hunter class in the actual arena where the class is being judged. He cannot rely upon his personal ignorance of the risk any more than the plaintiff in Murray v. Harringay Arena ([1951] 2 King's Bench page 529) could rely upon his ignorance of the risk involved in ice-hockey, excusable though such ignorance may have been in a six-year-old child.
Beyond saying that the question is one of degree, the learned judge has not expressly stated in his judgment anything which would indicate the considerations which he had in mind in determining that Mr. Holladay was in breach of the duty of care owed by a participant in a competition of this character to a spectator who had chosen to watch the event in the arena in which it was taking place. There is, however, no reference in his judgment to the fact, which is, in my view, of the utmost relevance, that Mr. Holladay's decisions as to what he should do once the signal for the gallop had been given had to be made in circumstances in which he had no time to exercise an unhurried judgment. It is, I think, clear that if the trial judge gave any weight to this factor he did not make proper allowance for it.
As regards the speed at which Mr. Holladay went round the bandstand end of the arena, I doubt whether his error of judgment would have amounted to negligence even if one were to ignore completely the fact that his judgment had to be exercised rapidly in the excitement of the contest although not at a moment of intense crisis. For it does not seem to me that any miscalculation of the speed at which Work of Art could take the corner could be reasonably foreseen to be likely to injure any spectator sitting on or standing by the benches twenty to thirty yards from the point at which a horse taking the corner at too great a speed would cross the line demarcated by the shrubs. The likelihood was that if a horse was forced by its momentum to go beyond that line it would run out on to the cinder track without coming into contact with any of the shrubs; for not only were the gaps between the shrubs much wider than the space actually occupied by the individual tubs of shrubs, but the evidence was, if evidence to this effect were needed, that a horse will do all it can to avoid a stationary obstacle. If it ran out on to the cinder track there would be no peril to spectators who remained, as reasonably knowledgeable spectators would remain, on the benches in line with the shrubs. Furthermore, in the unlikely event of a horse coming into contact with a shrub at the point at which it crossed the line demarcated by the shrubs, while it might be foreseeable that it might become momentarily unbalanced, it was in the highest degree improbable that this would result in its blundering down the line of shrubs over or through two, three or four more tubs of shrubs, each of which was likely to deflect it in its course, and to come into collision with spectators on or in line with the benches who, if they were watching, could take action to avoid it. In fact, this unlikely event did not happen. The horse was deflected from its course before it reached the benches and no spectator would have been injured had not the plaintiff, in a moment of panic, stepped or stumbled back out of his proper and safe place among the other spectators in the line of benches into the path of the horse. Such panic in the case of a person ignorant of equine behaviour and, as the judge found, paying little or no attention to what was going on, is understandable and excusable, but, in my view, a reasonable competitor would be entitled to assume that spectators actually in the arena would be paying attention to what was happening, would be knowledgeable about horses, and would take such steps for their own safety as any reasonably attentive and knowledgeable spectator might be expected to take.
When due allowance is made for the circumstances in which Mr. Holladay had in fact to exercise his judgment as to the speed at which to take the corner, his conduct in taking the corner too fast could not, in my view, amount to negligence.
As regards the second respect in which the learned judge found Mr. Holladay to be negligent, namely, in his attempt to bring back the horse into the arena after it had come into contact with the first shrub, I have already stated the reasons why I am unable to accept the judge's inference of fact that the course taken by the horse along the line of shrubs was due to Mr. Holladay's attempt to bring it back into the arena instead of letting it run out on to the cinder track. But even if the judge's inference of fact be accepted, here was a classic case where Mr. Holladay's decision what to do had to be taken in the "agony of the moment," when he had no time to think, and if he took the wrong decision that could not in law amount to negligence.
The most that can be said against Mr. Holladay is that in the course of and for the purposes of the competition he was guilty of an error or errors of judgment or a lapse of skill. That is not enough to constitute a breach of the duty of reasonable care which a participant owes to a spectator. In such circumstances something in the nature of a reckless disregard of the spectator's safety must be proved, and of this there is no suggestion in the evidence.
I too would allow this appeal.
(Appeal allowed. Judgment to be entered for first defendant with costs down to date of Legal Aid certificate: thereafter, with costs of the trial and of the appeal, not to be enforced without further order. Appellant to recover against the respondents, the second defendants, 10 guineas as costs on the appeal. Plaintiff's costs to be taxed under Third Schedule, Legal Aid and Advice Act. Leave to appeal to the House of Lords refused).
