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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Watson & British Boxing Board Of Control Ltd & Anor [2000] EWCA Civ 2116 (19 December 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/2116.html
Cite as: [2001] QB 1134, [2000] EWCA Civ 2116, [2001] 2 WLR 1256, [2001] PIQR P16
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JISCBAILII_CASES_TORT Neutral Citation Number: [2000] EWCA Civ 2116
IN THE SUPREME COURT OF JUDICATURE Case No: QBENF1999/1137/A2
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE HON MR JUSTICE IAN KENNEDY)
Tuesday 19th December 2000
THE MASTER OF THE ROLLS
LORD JUSTICE MAY
LORD JUSTICE LAWS
Respondent/Claimant
(1) BRITISH BOXING BOARD OF CONTROL LIMITED
(2) WORLD BOXING ORGANISATION INCORPORATED
Appellant/Defendant
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr C Mackay, QC and Mr Neil Block (instructed by Myers Fletcher & Gordon) appeared on behalf of the Respondent/Claimant
As Approved by the Court
Crown Copyright ©
LORD PHILLIPS, MR
1. On 21st September 1991 Michael Watson fought Chris Eubank for the World Boxing Organisation Super-Middleweight title at Tottenham Hotspur Football Club in London. The referee stopped the fight in the final round when Watson appeared to be unable to defend himself. He had in fact sustained a brain haemorrhage and, after returning to his corner, he lapsed into unconsciousness on his stool. There was chaos in and outside the ring and seven minutes elapsed before he was examined by one of the doctors who were in attendance. He was taken on a stretcher to an ambulance which was standing by which took him to North Middlesex Hospital. Nearly half an hour elapsed between the end of the fight and the time that he got there. At the North Middlesex Hospital he was intubated, that is an endotrachael tube was inserted, and he was given oxygen. He was also given an injection of Manitol, a diuretic that can have the effect of reducing swelling of the brain. The North Middlesex Hospital had no neurosurgical department, so Mr Watson was transferred by ambulance, still unconscious, to St. Bartholomew's Hospital. There an operation was carried out to evacuate a sub-dural haematoma. By this time, however, he had sustained serious brain damage. This has left him paralysed down the left side and with other physical and mental disability.
2. The fight had taken place in accordance with the rules of the British Boxing Board of Control Ltd., ("the Board"). These rules included provisions for medical inspection of boxers and for the attendance of two doctors at a fight. In fact the Board had required a third doctor to be present and that an ambulance should be in attendance.
3. Mr Watson brought an action against the Board. He claimed that the Board had been under a duty of care to see that all reasonable steps were taken to ensure that he received immediate and effective medical attention and treatment should he sustain injury in the fight. He contended that they were in breach of this duty with the consequence that he did not receive the immediate medical attention at the ringside that his condition required. In a nutshell, his case was that the resuscitation treatment that he received at the North Middlesex Hospital should have been available at the ringside, but was not. He further alleged that had he received that treatment, he would not have sustained permanent brain damage.
4. On 24 September 1999 Ian Kennedy J., gave judgment in favour of Mr Watson against the Board. Against that judgment the Board now appeals. The judgment is attacked root and branch. The Board contends:-
i) that it owed no duty of care to Mr Watson;
ii) that if it owed the duty alleged, it committed no breach; and
iii) that the breach of duty alleged did not cause Mr Watson's injuries.
5. I propose to develop the relevant facts more fully in the context of each of these issues.
Duty of Care
6. When considering whether the Board owed Watson a duty of care, Ian Kennedy J. examined at some length the role played by the Board in imposing, by rules and regulations, the safety standards to be observed by those involved in professional boxing in this country. His conclusions as to duty are to be found in the following passages from his judgment.
"The Board does not create the danger. What it does do does at least reduce the dangers inherent in professional boxing. But at the same time it countenances and gives its blessing to contests where the safety arrangements are those of its making. The promoters and the boxers do not themselves address considerations of safety. Clearly, they look to the Board's stipulations as providing the appropriate standard.
It is not necessary for a supposed tortfeasor to have created the danger himself. In my view there is a quite sufficient nexus between the Board and the professional boxer who fights in a contest to which its rules obtain to be capable of giving rise to a duty in the Board to take reasonable steps to try to minimise or control whether by rules or other directions the risks inherent in the sport. To my mind it is difficult in such a situation to profess a concern for safety and to deny a duty such as I have described.
Where there is a potential for physical injury, I do not believe that I have to go beyond the traditional concept of neighbourhood to find a duty where there is, as here, a clearly foreseeable danger. If authority is needed for this approach, it is to be found in the Judgment of the Court of Appeal in Perrett v Collins [1998] 2 LL.L.Rep. 255."
(Transcript p.15)
"There is always a risk, and the pool from which professional boxers tend to be recruited is unlikely to be one with an innate or well-informed concern about safety, and one may ask why should the individual boxer not rely on the Board's arrangements? The Board professes - I do not for one moment question its sincerity - its lively interest in his safety. Its experience, contacts and resources exceed his own. It has the ability to require of promoters what it sees as good practice.
I do not believe there is any difference in principle between giving advice about safety and laying down rules to provide for safety. Thus we find here a body with special knowledge which gives advice to a defined class of persons, that it knows will rely upon that advice in a defined situation..... If, which I doubt, this conclusion represents any step beyond what is already settled law, I am fully persuaded it is a proper one to take."
(Transcript pp.18-19)
7. I am in no doubt that the Judge's decision broke new ground in the law of negligence. In Caparo Plc v Dickman [1990] 2 AC 605, and in many subsequent cases, the House of Lords and this Court have approved the approach to the development of the law of negligence recommended by Brennan J. in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 A.L.R. 1, 43-44, where he said:
"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable `considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed."
8. The Judge referred (Transcript p.17) to the question of whether to attach a duty of care to the facts of the present case would be an acceptable incremental extension of established liabilities, or too long a step. He did not, however, identify any obvious stepping stones to his decision. I do not find this surprising. There are features of this case which are extraordinary, if not unique. I would echo the comment of Lord Steyn in Marc Rich & Co. v Bishop Rock Ltd [1996] AC 211 at p.236:
"None of the cases cited provided any realistic analogy to be used as a springboard for a decision one way or the other in this case. The present case can only be decided on the basis of an intense and particular focus on all its distinctive features, and then applying established legal principles to it."
9. I turn to the distinctive features of this case.
The Sport of Boxing
10. Many sports involve a risk of physical injury to the participants. Boxing is the only sport where this is the object of the exercise. The Law Commission in its 1994 Consultation Paper No.134 "Criminal Law: Consent and Offences Against the Person" recognised that boxing was an anomaly in English law. (pp.27-8). Lord Mustill reached the same conclusion in R v Brown [1994] 1 AC 212 at p.265, where he gave the following description of professional boxing:
"For money, not recreation or personal improvement, each boxer tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious, or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin to a degree which would ordinarily be well within the scope of Section 20. The boxers display skill, strength and courage, but nobody pretends that they do good to themselves or others. The onlookers derive entertainment, but none of the physical and moral benefits which have been seen as the fruits of engagement in many sports."
11. Attempts have been made, within Parliament and outside, to bring about the banning of the sport of boxing. They have not succeeded. Boxing could not, however, have survived as a legal sport without strict regulation, one aim of which is to limit the injuries inflicted in the ring. That regulation has been provided by the Board.
The British Board of Boxing Control
12. The history of the Board can be traced back to the middle of the nineteenth century, but the Board itself was constituted as an unincorporated association in 1929. In 1989 it was incorporated as a company limited by guarantee. Since 1929 the Board has been and continues to be the sole controlling body regulating professional boxing in the United Kingdom. There is no statutory basis for this. The Board's authority is essentially based upon the consent of the boxing world.
13. No one can take part, in any capacity, in professional boxing in this Country who is not licensed by the Board and, at the same time, a member of it, for the two are essentially synonymous. Thus boxers, promoters, managers, referees, time-keepers, trainers, seconds, masters of ceremonies, match-makers, agents for overseas boxers, ringmasters and whips all have to be licensed by the Board to perform their particular functions and become, when granted their licences, members of the Board.
14. A book of rules and regulations 58 pages in length provides, in detail, for the manner in which professional boxing is to be carried on. Contracts between boxer and manager and boxer and promoter have to be in standard form, providing expressly that the parties will observe the Board's rules. Licence holders are also required to comply with the Board's policy in respect of matters not dealt with by specific rules. The Board exercises its control of professional boxing through a system of eight Area Councils, subject to overall control by Stewards and Committees.
15. In 1991 the Board had about twelve hundred licence holders and members of which about five hundred and fifty were active boxers. Of these, the vast majority were semi-professional. Only about twenty-five British boxers succeeded in earning a full-time living from the sport.
16. The Board is non-profit making. In 1991 its income was some £314,000 of which some £51,000 represented licence and application fees and about £224,000 `tournament tax', which I understand to represent a small percentage of the takings at boxing tournaments. At the end of December 1991 the net assets of the Board were about £352,000. The Board did not insure against liability in negligence.
The Board's Involvement in Safety
17. The physical safety of boxers has always been a prime concern of the Board. In his Witness Statement Mr John Morris, General Secretary of the Board said "The Board believes as I do, that the safety of the boxers is of great importance and takes precedence over commercial and other interests". The Articles of Association of the Board provide that its objects include:
"To promote and safeguard the interests of members of the company in the United Kingdom and throughout the world including members' (being boxers) interests in boxing contests and tournaments....including.....the encouragement
and promotion of safety standards....
the concern of the Board for the physical safety of boxers is reflected in many of the Board's rules and regulations. These can be divided into three categories:
i) rules designed to ensure that a boxer is not permitted to fight unless he is fit.
ii) rules designed to restrict the physical injuries that may be caused in the course of the fight;
iii) rules designed to secure that a boxer receives appropriate medical attention when injured in the course of a fight.
18. Examples of the first category are:
a) A requirement that a boxer must be medically examined before being granted a licence, together with a list of medical conditions that preclude the grant of a licence. (Rule 8.1).
b) The rule that a Licence may be suspended or withdrawn if, in the opinion of the Board or an Area Council, the licence-holder is not medically fit to box (Rule 4.9(b)(I)).
c) The rule that if a fight is stopped by the referee or a boxer is counted out, the boxer's licence is suspended for at least 28 days and until the boxer is certified fit to box by a doctor. (Rule 5.9(c)).
d) The rule that a boxer must be medically examined before every contest. (Rules 8.5 and 8.6).
e) The rule that any boxer selected to take part in a championship contest shall submit to the Board a satisfactory centralised tomography (CT) brain scan report not less than 28 days before the contest and a further scan report annually, so long as the boxer continues to take part in such contests.
19. Examples of the second category are:
a) Requirements as to protective covering for the ring floor and the corners (Rule 3.4).
b) A limit on the number of rounds to twelve (Rule 3.7).
c) Rules governing bandaging for the hands and the composition of boxing gloves (Rules 3.22 and 3.23).
20. The third category is of particular importance in the context of this action. The following rules fall into this category:
3.8 The promoter shall procure that two doctors, who must be approved by the Area Medical Officer, attend at all promotions, one of whom must be seated at the ringside at all times during the contest.
3.9 ...each boxer must ......be examined after every contest and a report sent to the Board or Area Council concerned if necessary. A doctor must be available to give immediate attention to any boxer should this be required.
3.10 The promoter shall procure that at all promotions a stretcher is available for use near the ring.
9.39.3 (added to the Rules on 25 May 1991)). Each venue must have a room set aside exclusively for medical purposes. It shall be adequately lit, have an examination couch and possess hot and cold running water. The medical room should be situated in close proximity to the boxer's dressing rooms and be reasonable accessible to and from the ring.
21. The position as to the selection of doctors for a contest that prevailed in 1991 was as follows. The doctors required by the rules to be present at a contest had to be doctors who had been approved by the Board. Each area had a Chief Medical Officer, whose duties included the approval of doctors who wished to serve as medical officers at boxing matches. In theory the medical officers at a contest would be appointed and paid by the Promoter from the body of approved doctors. In practice the Area Secretary would select the medical officers for a particular contest, albeit that the promoter would pay them.
22. From at least 1959 the Board kept under review the medical safeguards that should be provided at a boxing contest in the light of developing medical knowledge, or purported so to do. In an open letter to BMA delegates, written some time in the 1980's, Dr Whiteson, the Chief Medical Officer to the Board, wrote "The British Boxing Board of Control is justifiably proud of its reputation of being in the vanguard of the protection of professional boxers." A little later he said "As Chief Medical Officer, my approach has always been that preventative controls are the key to making a physically hazardous sport as safe as possible...our interest in preventative controls covers the whole gamut of professional boxing."
23. In an article on injuries in professional boxing written in 1981, Dr Whiteson stated:
"My task as Senior Medical Officer is to control the medical aspects of boxing and in this to liaise closely with Area Medical Officers and with the team of medical experts which includes neurologists and orthopaedic, plastic and ophthalmic surgeons".
24. Dr Whiteson did not give evidence. Mr Morris, commenting in his Witness Statement on the Statement of Claim, stated:
"We do collaborate with the medical profession, indeed we believe that our Rules are as good as currently can be devised, taking into account the medical interests of the boxers, and the requirements of the sport itself. Efforts continue and will continue to improve safety standards and these efforts are and were on-going prior to the Watson fight."
25. The body set up by the Board that gave particular consideration to safety standards was a Medical Committee, sometimes referred to as The Medical Panel, that was set up in 1950. A press release issued in the 1980's', stated:
"In the last 20 years, the medical protection of British professional boxers has become the Board's main raison d'être...through its Medical Committee set up in 1950, it has provided British professional boxing with an unrivalled set of medical safety checks and balances."
26. An example of the ongoing review of safety standards was the Board's decision, in August 1991, that:
"In future three Board Medical Officers would be appointed when a major contest was taking place. This would mean an appointment of a Senior Medical officer specifically for the major event and then two other doctors on duty to ensure that there were always two doctors at the ringside while a major contest was taking place."
27. Another example was a general direction given, at about the same time, that an ambulance and crew should be in attendance at a boxing contest.
28. The Board's Medical Committee had issued detailed advice to Medical Officers in relation to their duty at the ringside which was in force at the time of the Watson/Eubank fight. I shall revert to the details of this when I come to consider the question of breach. At this stage it is enough to note that the advice set out the professional expertise expected of the medical officers and details of equipment needed to perform their duties.
29. I can summarise the position as follows. The Board set out by its rules, directions and guidance, to make comprehensive provision for the services to be provided to safeguard the health of the boxer. All involved in a boxing contest were obliged to accept and comply with the Board's requirements. So far as the promoter was concerned, these delimited his obligations. In his Witness Statement, Mr Morris accepted that the following averment in the Statement of Claim was "basically correct":
"at all material times, by reason of the effective control over boxing that the Board assumed, the Board was in a position to determine, and did in fact determine, the measures that were taken in boxing to protect and promote the health and safety of boxers."
The Regime Applying to the Contest Between Watson and Eubank
30. The contest was sponsored not by the Board, but by the World Boxing Organisation (WBO). This did not, however, affect the position so far as responsibility for the safety of the boxers was concerned. Rule 23 of the Board's rules and regulations provided:
"23.1 Commonwealth, European and World Championships when promoted in Great Britain and Northern Ireland must be organised and controlled in accordance with the Regulations of the BBB of C except where such Regulations may be at variance with those of any Commonwealth, European or World Boxing Authorities with whom the BBC of C may for the time being be affiliated, when the Regulations of such Authorities shall apply.
31. The Bout Agreement, which was subject to the sanction of the Board, provided that:
"The bout will be conducted in accordance with the rules and regulations of the WBO and BBBC".
32. Mr Block, the Secretary of the Board's Southern Area Council, reported to the Board that the arrangements in place were satisfactory and that the tournament could receive the Board's approval. He gave evidence that the WBO imposed no medical requirements in respect of the fight and that in these circumstances, the ordinary Board rules and policy would and did apply. In accordance with normal practice, the medical officers for the contest were nominated by the Southern Area Council.
Reliance
33. In 1990 Mr Watson had been involved in litigation with his manager, in which the Board had filed an Affidavit. This stated that the Board was accepted as being the sole controlling body regulating professional boxing in the United Kingdom and stressed the importance that the Board place on ensuring the safety of boxers. In a Witness Statement in the present proceedings, Mr Watson stated that this accorded with his understanding as a boxer that the Board undertook responsibility for all the medical aspects of boxing, including the medical supervision of boxing contests, in the United Kingdom.
34. This concludes my summary of the facts which I consider material to the question of whether the Board owed a duty of care to Mr Watson. I turn to the law.
THE LAW
35. In Caparo v Dickman at p.617 Lord Bridge considered a series of decisions of the Privy Council and the House of Lords in relation to the duty of care in negligence and summarised their effect as follows:-
"What emerges is that, in addition to the forceability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed, a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other".
36. Lord Bridge went on to state that these ingredients were insufficiently precise to be used as practical tests and to commend the desirability of proceeding by analogy with established categories of negligence. Lord Oliver at p.633 also emphasised the difficulty of using the three requirements as a practical guide to the existence of a duty of care.
"The postulate of a simple duty to avoid any harm that is, with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicality. Those limits have been found by the requirement of what has been called a "relationship of proximity" between plaintiff and defendant and by the imposition of a further requirements that the attachment of liability for harm which has occurred be "just and reasonable". But although the cases in which the courts have imposed or withheld liability are capable of an approximate categorisation, one looks in vain for some common denominator by which the existence of the essential relationship can be tested. Indeed it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court's view that it would not be fair and reasonable to hold the defendant responsible. "Proximity" is, no doubt, a convenient expression as long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which pragmatically, the courts conclude that a duty of care exists."
37. Saville L.J. expressed a similar view in Marc Rich & Co. v Bishop Rock Ltd [1994] 1 WLR 1071 at 1077:
"Whatever the nature of the harm sustained by the plaintiff, it is necessary to consider the matter not only by inquiring about foreseeability but also by considering the nature of the relationship between the parties; and to be satisfied that in all the circumstances it is fair, just and reasonable to impose a duty of care. Of course....these three matters overlap with each other and are really facets of the same thing. For example, the relationship between the parties may be such that it is obvious that a lack of care will create a risk of harm and that as a matter of common sense and justice a duty should be imposed..... Again in most cases of the direct infliction of physical loss or injury through carelessness, it is self-evident that a civilised system of law should hold that a duty of care has been broken, whereas the infliction of financial harm may well pose a more difficult problem. Thus the.... so-called requirements for a duty of care are not to be treated as wholly separate and distinct requirements but rather as convenient and helpful approaches to the pragmatic question whether a duty should be imposed in any given case."
38. This passage was approved by Lord Steyn when the case reached the House of Lords [1996] AC 211 at 235. Lord Steyn stated:-
"Since the decision in Dorset Yacht Co. v The Home Office [1970] AC 1004, it has been settled law that the elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases whatever the nature of the harm sustained by the plaintiff.."
Proximity
39. Despite this statement, Ian Kennedy J. suggested that where there was a potential for physical injury there was no need to go beyond the test of foreseeability in deciding whether a duty of care existed, relying on Perrett v. Collins [1998] 255. In that case Hobhouse L.J. deprecated the introduction of tests such as `proximity' and `fair just and reasonable' in a situation where it was reasonably foreseeable that a failure to exercise reasonable care would cause personal injury:
"They also illustrate the dangers of substituting for clear criteria, criteria which are incapable of precise definition and involve what can only be described as an element of subjective assessment by the Court: such ultimately subjective assessments tend inevitably to lead to uncertainty and anomaly which can be avoided by a more principled approach".
P.258.
40. Later, after referring to Lord Bridge's speech in Caparo at p.261, he said:
"Thus when a case fits into a category where the existence of a duty of care and a potential liability in the tort of negligence has already been recognised, the more elusive criteria to which Lord Bridge referred for dealing with cases that go beyond the recognised category of proximity do not arise."
P.261.
41. I shall have to examine the facts and reasoning in Perrett in due course, for Mr Mackay, QC, for Mr Watson has relied upon it as providing a close analogy with the present case. At the outset, however, I propose to identify some significant features of the present case, which place it outside any established category of duty of care in negligence. These make it necessary:
i) to identify the principles which are relied upon as giving rise to a duty of care in this case.
ii) to identify any categories of cases in which these principles have given rise to a duty of care, or conversely where they have not done so.
iii) to decide whether these principles should be applied so as to give rise to a duty of care in the present case.
42. At the third stage, questions of `proximity' and of what is `fair, just and reasonable' have to be considered.
The Special Features of this Case
43. The principles alleged to give rise to a duty of care in this case are those of assumption of responsibility and reliance. Mr Watson's case can be summarised as follows:
i) The Board assumed responsibility for the control of an activity the essence of which was that personal injuries should be sustained by those participating.
ii) The Board assumed responsibility for determining the details of the medical care and facilities which would be provided by way of immediate treatment of those who received personal injuries while taking part in the activity.
iii) Those taking part in the activity, and Mr Watson in particular, relied upon the Board to ensure that all reasonable steps were taken to provide immediate and effective medical attention and treatment to those injured in the course of the activity.
44. The peculiar features of the duty of care alleged are as follows:
i) the duty alleged is not to take reasonable care to avoid causing personal injury. It is a duty to take reasonable care to ensure that personal injuries already sustained are properly treated.
ii) the duty alleged is not directly, through the servants or agents of the Board to provide proper facilities and administer proper treatment to those injured. It is to make regulations imposing on others the duty to achieve these results.
45. I turn to consider the extent to which there are categories of cases, in which a duty of care has been held to exist, or alternatively held not to exist involving these features.
A Duty to Administer Medical Teatment
46. The most obvious category of case of a duty of care to administer medical treatment to restrict the consequences of injury or illness, or to effect a cure, is that of the duty owed by a doctor or a hospital authority to a patient. The nature of that duty was recently considered by this Court in Capital and Counties PLC v. Hampshire C.C. [1997] QB 1004 at 1034.
"As a general rule a sufficient relationship will exist when someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is direct and substantial reliance by the plaintiff on the defendant's skill. See Hedley Byrne & Co. Ltd. v Heller & Partners Ltd [1964] AC 465 and Henderson v Merrett Syndicates Ltd [1995] 2 AC 145. There are many instances of this. The plaintiffs submitted that that which is most closely analogous is that of doctor and patient or health authority and patient. There is no doubt that once the relationship of doctor and patient or hospital authority and admitted patient exists, the doctor or the hospital owe a duty to take reasonable care to effect a cure, not merely to prevent further harm. The undertaking is to use the special skills which the doctor and hospital authorities have to treat the patient. In Cassidy v Ministry of Health [1951] 2 K.B. 343, Denning L.J. said:
"In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the selfsame duty as the humblest doctor. Whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment."
"In Barnett v Chelsea & Kensington Management Committee [1969] 1 Q.B. 428 Nield J. drew a distinction between a casualty department of a hospital that closes its doors and says no patients can be received, in which case he would, by inference, have held there was no duty of care, and the case before him where the three watchmen, who had taken poison, entered the hospital and were given erroneous advice, where a duty of care arose. Likewise, a doctor who happened to witness a road accident will very likely go to the assistance of anyone injured, but he is not under any legal obligation to do so, save in certain limited circumstances which are not relevant, and the relationship of doctor and patient does not arise. If he volunteers his assistance, his only duty as a matter of law is not to make the victim's condition worse. Moreover, it is clear that no such duty of care exists, even though there may be close physical proximity, simply because one party is a doctor and the other has a medical problem which may be of interest to both".
47. It is clear on the authorities that the duty to take reasonable care to prevent further harm and to effect a cure is founded on the acceptance of the patient as a patient, which carries with it an implicit undertaking to care for the patient's needs. It is on this basis that it is possible to draw a distinction between the doctor who goes to the assistance of the victim of a road accident and the hospital that receives that victim into its casualty department.
48. I do not consider that a conscious reliance by the patient on the hospital to exercise care is an essential element in this duty of care. The duty will be owed to the victim of a road accident who is received by the hospital unconscious. While it might be possible to rationalise the reason for the duty by postulating that there is a general reliance by citizens upon the National Health Service to provide reasonable care in the case of a medical emergency, English law has set its face against this line of reasoning.
49. It seems to me that the authorities support a principle that where A places himself in a relationship to B in which B's physical safety becomes dependent upon the acts or omissions of A, A's conduct can suffice to impose on A, a duty to exercise reasonable care for B's safety. In such circumstances A's conduct can accurately be described as the assumption of responsibility for B, whether `responsibility' is given its lay or legal meaning.
50. Thus it has been held that the prison service owes a duty of care to take reasonable steps to prevent prisoners from committing suicide.
51. In Barrett v. Ministry of Defence [1995] 1 WLR a naval rating drank himself into a state of insensibility at the Royal Navy Air Station where he was serving. This was drawn to the attention of the duty Petty Officer, who organised a stretcher, had the rating carried to his cabin and placed on his bunk in the recovery position, in a coma. No medical assistance was provided. He received only occasional visits of inspection by the duty ratings. Whilst unattended he vomited and died as a result of inhaling his own vomit. This Court held that the Ministry of Defence had been under no duty of care to prevent the deceased from abusing alcohol to the extent that he did. Beldam L.J. held that
"Until he collapsed, I would hold that the deceased was in law alone responsible for his condition. Thereafter, when the defendant assumed responsibility for him, it accepts that the measures taken fell short of the standard reasonably to be expected. It did not summon medical assistance and its supervision of him was inadequate".
52. A duty of care at this stage had been conceded by the Ministry of Defence, but in Capital and Counties v. Hampshire this Court commented at p.1038 that this was not surprising as the deceased was under the command of the officer concerned.
53. These cases turned upon the assumption of responsibility to an individual. A number of authorities show that an acceptance of the role (usually under statutory powers or duties) of protecting the community in general from foreseeable dangers does not carry with it a legal duty of care to safeguard individual members of the community from those dangers. Thus in Capital and Counties v. Hampshire this Court held that a fire brigade was under no common law duty to answer a call for help or, having done so, to exercise reasonable skill and care to extinguish the fire. The police have been held to owe no duty to respond to a 999 call or, having done so, to exercise reasonable care to prevent a burglary Alexandrou v. Oxford [1993] 4 All ER 328 [1994] 4 All ER 328.
54. These cases were distinguished in Kent v Griffiths [2000] 2 WLR 1158. In that case a doctor phoned for an ambulance to take to hospital urgently a patient who had suffered an asthma attack. The request for an ambulance was accepted. The arrival of the ambulance was greatly delayed without any reasonable explanation. As a result of the delay the patient sustained brain damage. In the subsequent action for personal injuries, this Court held that the ambulance service had been in breach of a duty of care in failing to arrive promptly. Lord Woolf M.R. held that, on the facts, a duty of care had existed. He distinguished the fire and police `rescue' cases on the ground that:
"This was not a case of general reliance, but specific reliance. It was foreseeable that the claimant could suffer personal injuries if there was delay. The nature of the damage was important. There was a contrast with a fire or a crime, where an unlimited number of members of the public could be affected and the damage could be to property or only economic. In its statutory context the ambulance service is more properly described as part of the National Health Service than as a rescue service. As part of the health service it should owe the same duty to members of the public as other parts of the health service. The L.A.S. had not been responsible for the claimant's asthma but it had caused the respiratory arrest and to this extent the L.A.S was the author of additional damage."
55. As I read the judgment the duty of care turned upon the acceptance by the ambulance service of the request to provide an ambulance and thus the acceptance of responsibility for the care of the particular patient. Thus at p.1162 Lord Woolf observed:
"Once a call to an ambulance service has been accepted, the service is dealing with a named individual upon whom the duty becomes focused. Furthermore, if an ambulance service is called and agrees to attend the patient, those caring for the patient normally abandon any attempt to find an alternative means of transport to the hospital".
56. At p.1172 he summarised his conclusion as follows:-
"The fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance, when there was no reason why it should not be provided, is important in establishing the necessary proximity and thus duty of care in this case. In other words, as there were no circumstances which made it unfair or unreasonable or unjust that liability should exist, there is no reason why there should not be liability if the arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case established the duty of care. On the findings of the judge it was delay which caused the further injuries. If wrong information had not been given about the arrival of the ambulance, other means of transport could have been used".
57. This concludes my consideration of cases dealing with the assumption of responsibility to exercise reasonable care to safeguard a victim from the consequences of an existing personal injury or illness. They support the proposition that the act of undertaking to cater for the medical needs of a victim of illness or injury will generally carry with it the duty to exercise reasonable care in addressing those needs. While this may not be true of the volunteer who offers assistance at the scene of an accident, it will be true of a body whose purpose is or includes the provision of such assistance.
58. I now come to the second special feature of this case - the fact that the Board is not charged with having failed itself to provide appropriate medical treatment, but with having failed to impose rules and regulations which would have ensured that others did so.
Indirect Influence on the Occurrence of Injury
59. We have been referred to no case where a duty of care has been established in relation to the drafting of rules and regulations which have governed the conduct of third parties towards a claimant. There are, however, authorities dealing with advice given to third parties that foreseeably resulted in injury to the person or property of claimants. Ian Kennedy J. equated the formulation of rules and regulations with the giving of advice and these decisions are of relevance in this context.
60. In Clay v. Crump & Sons Ltd [1964] 1 QB 133 a building worker was injured when a wall collapsed on him. The wall had remained standing because the architect employed in supervising the building works had failed to advise that it was dangerous and should be demolished. In answer to a claim by the workman, the architect argued that his only duty was the contractual duty that he owed to the owners of the building. That argument was rejected. Ormrod L.J. held at p.557:
"Is this a case in which it can be said that the plaintiff was closely and directly affected by the acts of the architect as to have been reasonably in his contemplation when he was directing his mind to the acts or omissions which are called into question? In my judgment, there must be an affirmative answer to that question. The architect, by reason of his contractual arrangement with the building owner, was charged with the duty of preparing the necessary plans and making arrangements for the manner in which the work should be done. This involved taking precautions or giving instructions for them to be taken so that the work could be done with safety. It much have been in the contemplation of the architect that builders would go on the site as the whole object of the work was to erect building there. It would seem impossible to contend that the plaintiff would not be affected by the decisions and plans drawn up by the architect."
61. In Marc Rich & Co v. Bishop Rock Ltd [1996] AC 211 a classification surveyor had surveyed a vessel laden with cargo and given it a clean bill of health. The vessel sailed and sank a few days later with the loss of the cargo. Cargo owners sued the classification society N.K.K. It was accepted that, if the survey had been negligent the loss of the cargo was a foreseeable consequence. On a preliminary issue the House of Lords held that the classification society had no duty of care to the cargo owners. This decision turned, essentially, on considerations of policy in relation to the role of a classification society in the context of the complex arrangements for sharing, limiting and insuring the risks inherent in carriage of goods by sea. Lord Steyn, however, gave short shrift to an argument based on assumption of responsibility:
"Given that the cargo owners were not even aware of N.K.K.'s examination of the ship, and that the cargo owners simply relied on the undertakings of the shipowners, it is in my view impossible to force the present set of facts into even the most expansive view of the doctrine of voluntary assumption of responsibility."
62. In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 five appeals were heard together by the House of Lords because they raised, by way of preliminary issues, similar questions about the duty of care. The defendant in each case was a local authority. Each case involved the performance by the local authority of duties imposed under statute for the benefit of children. One group of cases involved statutory duties imposed on local authorities for the purpose of protecting children from child abuse. The other group of cases involved duties imposed on local authorities in relation to children with special educational needs. Apart from issues of statutory duty, the question arose in each group of cases whether (i) the local authorities owed, at common law, a duty of care to the children when considering their needs and (ii) whether professionals advising on the needs of children owed a duty of care to those children which, if broken, rendered the local authorities vicariously liable. In delivering the leading speech Lord Browne-Wilkinson observed at p.739:
"The question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done."
63. He went on to hold that, in relation to the child abuse cases, the statutory scheme was incompatible with the existence of a direct common law duty of care owed by the local authorities. As for the argument that the local authorities were vicariously liable for negligence on the part of those giving them advice, Lord Browne-Wilkinson held at pp.752-3:
"The claim based on vicarious liability is attractive and simple. The normal duty of a doctor to exercise reasonable skill and care is well established as a common law duty of care. In my judgment, the same duty applies to any other person possessed of special skills, such as a social worker. It is said, rightly, that in general such professional duty of care is owed irrespective of contract and can arise even where the professional assumes to act for the plaintiff pursuant to a contract with a third party: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; White v Jones [1995] 2 AC 207. Therefore, it is said, it is nothing to the point that the social workers and psychiatrist only came into contact with the plaintiffs pursuant to contracts or arrangements made between the professionals and the local authority for the purpose of the discharge by the local authority of its statutory duties. Once brought into contact with the plaintiffs, the professionals owed a duty properly to exercise their professional skills in dealing with their `patients', the plaintiffs. This duty involved the exercise of professional skills in investigating the circumstances of the plaintiffs and (in the Newham case) conducting the interview with the child. Moreover, since the professionals could foresee that negligent advice would damage the plaintiffs, they are liable to the plaintiffs for tendering such advice to the local authority Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child. Moreover, the tendering of any advice will in many cases involve interviewing and, in the case of doctors, examining the child. But the fact that the carrying out of the retainer involves contact with and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority. The Court of Appeal drew a correct analogy with the doctor instructed by an insurance company to examine an applicant for the life insurance. The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant........
In my judgement in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority, assume any general professional duty of care to the plaintiff children. The professionals were employed or retained to advise the local authority in relation to the well being of the plaintiffs but not to advise or treat the plaintiffs".
64. In relation to two of the cases involving special educational needs, Lord Browne-Wilkinson reached a different conclusion. The Plaintiffs were children with dyslexia. They alleged that the local authorities had provided services under which, in one case, educational psychologists and, in the other, advisory teachers provided advice to teaching staff and parents as to whether children had special educational needs. In each case it was alleged that the professional in question negligently failed to diagnose dyslexia. In consequence this special need was not addressed, to the detriment of the child. One issue in each case was whether, on these facts, it could be argued that the local authority had been either directly or vicariously, in breach of a duty of care owed to the child under common law. Lord Browne-Wilkinson answered this question in the affirmative. In the first case, he held at pp.761-2:
"The claim is based on the fact that the authority is offering a service (psychological advice) to the public. True it is that, in the absence of a statutory power or duty, the authority could not offer such a service. But once the decision is taken to offer such a service, a statutory body is in general in the same position as any private individual or organisation holding itself out as offering such a service. By opening its doors to others to take advantage of the service offered, it comes under a duty of care to those using the service to exercise care in its conduct. The position is directly analogous with a hospital conducted, formerly by a local authority now by a health authority, in exercise of statutory powers. In such a case the authority running the hospital is under a duty to those whom it admits to exercise reasonable care in the way it runs it: see Gold v Essex County Council [1942] 2 K.B. 293."
65. In the second case he reached the following conclusions of principle at p.766:
"In my judgment a school which accepts a pupil assumes responsibility not only for his physical well being but also for his educational needs. The education of the pupil is the very purpose for which the child goes to the school. The head teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such steps as a reasonable teacher would consider appropriate to try to deal with such under-performance. To hold that, in such circumstances, the head teacher could properly ignore the matter and make no attempt to deal with it would fly in the face, not only of society's expectations of what a school will provide, but also the fine traditions of the teaching profession itself. If such head teacher gives advice to the parents, then in my judgment he must exercise the skills and care of a reasonable teacher in giving such advice.
Similarly, in the case of the advisory teacher brought in to advise on the educational needs of a specific pupil, if he knows that his advice will be communicated to the pupil's parents he must foresee that they will rely on such advice. Therefore in giving that advice he owes a duty to the child to exercise the skill and care of a reasonable advisory teacher."
66. This reasoning was followed by the House of Lords in Phelps v Hillingdon Borough Council [2000] 3 WLR 776. That case involved four further claims by children against local education authorities for, among other things, negligently failing to address their special educational needs. In the leading speech Lord Slynn advanced the following statement of principle at pp.790-1:
"As to the first question, it is long and well-established, now elementary, that persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused by the lack of care. Such duty does not depend on the existence of any contractual relationship between the person causing and the person suffering the damage. A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist and a teacher including a teacher in a specialised area, such as a teacher concerned with children having special educational needs. So may be an education officer performing the functions of a local education authority in regard to children with special educational needs. There is no more justification for a blanket immunity in their cases than there was in Capital & Counties Plc v Hampshire Country Council [1997] QB 1004."
"...But where an educational psychologist is specifically called in to advise in relation to the assessment and future provision for a specific child, and it is clear that the parents acting for the child and the teachers will follow that advice, prima facie a duty of care arises. It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. It is, however, clear that the test is an objective one: Henderson v Merrett Syndicates Ltd., [1995] 2 AC 145, 181. The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law."
67. Lord Nicholls posed and answered the following question at p.802:
"Take a case where an educational psychologist is employed by an education authority. In the course of his work he assesses a pupil whose lack of progress at school has been causing concern all round: to teachers and parents alike. The child has a learning difficulty. The psychologist sees the child and carries out an assessment. He makes a diagnosis and advises the education authority. The diagnosis is hopelessly wrong. No reasonably competent educational psychologist, exercising reasonable skill and care, would have given such advice. In consequence, the pupil fails to receive the appropriate educational treatment and, as a result, his educational progress is retarded, perhaps irreparably.
When carrying out the assessment and advising the education authority, did the psychologist owe a duty of care to the child?
I confess I entertain no doubt on how that question should be answered. The educational psychologist was professionally qualified. He was brought in by the education authority to assist it in carrying out its educational functions. The purpose of his assessment was to enable him to give expert advice to the education authority about the child. The authority was to act on that advice in deciding what course to adopt in the best interests of the pupil with a learning difficulty. Throughout, the child was very dependent upon the expert's assessment. The child was in a singularly vulnerable position. The child's parents will seldom be in a position to know whether the psychologist's advice was sound or not.
This seems to me to be, on its face, an example par excellence of a situation where the law will regard the professional as owing a duty of care to a third party as well as his own employer."
68. Finally I return to Perrett v. Collins, the only case referred to by Ian Kennedy J. when considering the question of duty of care. The background to this case was described by Hobhouse L.J. at p.258 as follows:
"The third defendants are a trading company incorporated under the companies Acts. The precise nature of the company's constitution is not covered by the evidence. It has limited liability. It trades under the name of the "Popular Flying Association" and it appears that either its main role or one of its main roles is to run that association. The association exists to facilitate amateurs to enjoy facilities for flying light aircraft. Thus, it has members who pay membership fees or subscriptions in return for which it provides them with facilities. The facilities include a scheme which enables members to construct and fly their own light aircraft. The Kit Fox aircraft is an aircraft which is designed for this purpose. It is supplied to amateur flyers in a kit form which they can then assemble for themselves. In order that, when complete, the aircraft can obtain first a provisional and then a full certificate of airworthiness, the assembly of the aircraft has to be supervised and checked by an inspector. Mr. Usherwood was the person who was carrying out this role in relation to Mr. Collins' assembly of this aircraft. The plaintiff's allegation is that during this process an alternative gearbox was fitted without the appropriate and corresponding substitution of a propeller which matched the substituted gearbox.
The company, as the Popular Flying Association, appoint inspectors for the purpose of, among other things, inspecting aircraft during the course of their construction by members of the association and certifying whether the relevant work has been done to his "entire satisfaction" and the aircraft is in an airworthy condition. Any such inspector has to be approved by the association".
69. Mr Usherwood had authority, under an Order made pursuant to the Civil Aviation Act 1982 to certify that the aircraft was fit to fly. He did so, notwithstanding, so it was alleged, that the mismatch between gearbox and propeller made the aircraft unairworthy. The owner of the aircraft took off, with the Plaintiff onboard as a passenger. The aircraft crashed and the Plaintiff sustained personal injuries. He sued the owner, Mr Usherwood and the Popular Flying Association ("the PFA"). A preliminary issue was tried as to whether Mr Usherwood and the PFA owed the Plaintiff a duty of care. They argued that if they had failed to exercise reasonable care, this was not the direct cause of the Plaintiff's injuries - the direct cause being that the aircraft had been designed in a manner that made it unairworthy. Thus the necessary `proximity' was not made out. They also argued that it was not fair, just and reasonable that the PFA should be liable to negligence. PFA was not a commercial undertaking. If it was held liable it might withdraw from its work, or have to pass on the cost of increased insurance to the detriment of small aircraft operators.
70. In the leading judgment Hobhouse L.J. rejected the submission that any negligence on the part of Mr Usherwood was only an indirect cause of the crash. The role of Mr Usherwood was distinct and independent from the role of the constructor of the plane. Mr Usherwood, who alone of those involved had technical expertise, might be the only person who had been negligent. In these circumstances the claim against Mr Usherwood was a conventional claim for carelessness causing direct and foreseeable personal injury. Questions of what was fair and reasonable did not arise. Hobhouse L.J. expounded the relevant principles of law in the following passages:
"A minimum requirement of particularity and contemplation is required. But it has never been a requirement of the law of the tort of negligence that there be a particular antecedent relationship between the defendant and the plaintiff other than one that the plaintiff belongs to a class which the defendant contemplates or should contemplate would be affected by his conduct. Nor has it been a requirement that the defendant should inflict the injury upon the plaintiff. Such a concept belongs to the law of trespass not to the law of negligence"...........
"Where the plaintiff belongs to a class which either is or ought to be within the contemplation of the defendant and the defendant by reason of his involvement in an activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the plaintiff, the defendant is liable if as a result of his unreasonable lack of care he causes a situation to exist which does in fact cause the plaintiff injury.
Once this proximity exists, it ceases to be material what form the unreasonable conduct takes. The distinction between negligent misstatement and other forms of conduct ceases to be legally relevant, although it may have a factual relevance to foresight or causation. Thus a person may be liable for directing someone into a dangerous location (e.g. the Hillsborough cases: e.g. Sharpe v Avery [1938] 4 All E.R. 85) or a producer may be liable for the absence of an adequate warning on the labelling of his product (e.g. Heaven v Pender (1883) 11 Q.B.D. 503 at p.517, per Lord Justice Cotton). Once the defendant had become involved in the activity which gives rise to the risk, he comes under the duty to act reasonably in all respects relevant to that risk. Similarly none of the particular difficulties which arise in relation to economic loss arise in relation to the causing of personal injury. Once proximity is established by reference to the test which I have identified, none of the more sophisticated criteria which have to be used in relation to allegations of liability for mere economic loss need to be applied in relation to personal injury, nor have they been in the decided cases."
71. While Buxton L.J. agreed with Hobhouse L.J. that the negligence alleged fell into the category of directly causing foreseeable personal injury, both he and Swinton Thomas L.J. considered the question of whether it was fair and reasonable to impose a duty of care. Each emphatically concluded that it was. The statutory obligations in relation to certifying airworthiness was designed, at least in substantial part, for the protection of those who might be injured if an aircraft was certified as being fit to fly when it was not. If PFA was not liable in negligence, the Plaintiff might be left without a remedy against anyone. Dealing with the arguments of policy advanced on behalf of PFA, Buxton L.J. observed that there was no evidence of any of the asserted potential effects of a finding of negligence against PFA. He added :
"If the plaintiff has been negligently injured by a failing by the PFA, I cannot see that it would be right to withhold relief from him simply on the ground that to grant that relief might cause a rise in the PFA's insurance premiums, or even cause a more expensive system of inspection to be substituted for that of the PFA."
72. These cases establish that where A advises B as to action to be taken which will directly and foreseeably affect the safety or well-being of C, a situation of sufficient proximity exists to found a duty of care on the part of A towards C. Whether in fact such a duty arises will depend upon the facts of the individual case and, in particular, upon whether such a duty of care would cut across any statutory scheme pursuant to which the advice was given.
Should the principles, as derived from the established cases, lead to a finding of a duty of care in this case?
Proximity
73. Mr. Walker advanced five arguments in support of the proposition that there was insufficient proximity to give rise to a duty of care on the facts of this case. First he submitted that the Board exercises a public function which it has assumed for the public good. This is an argument which might appeal to boxing enthusiasts, but would not be accepted by the British Medical Association. The broad function of the Board is to support professional boxing. The members of the Board are those who are involved in professional boxing. In particular they are boxers. Caring for the needs of boxers, and in particular the physical safety of boxers, is the primary object of the Board.
74. Next Mr. Walker argued that if the Board had made its Rules pursuant to a statutory power it would be tolerably clear that it could not be held liable in negligence in relation to the manner in which it chose to exercise its discretion. In support of that proposition Mr. Walker relied upon X v Bedfordshire CC and Stovin v Wise [1996] AC 923. It does not seem to me to be profitable to speculate what the position would be if the Board had a statutory function in relation to boxing. I would simply comment that if the Board were given the statutory function of directing what medical assistance should be provided to boxers at the stadium, I consider that it would be at least arguable that they owed boxers a duty of care in exercising that function.
75. Next Mr. Walker argued that the duty of care alleged was one owed for an indeterminate time to an indeterminate number of persons. He submitted that the Board would presumably owe the same duty to boxers who came from abroad to box and persons who were not yet boxers, and perhaps not even born, when the rules were made. In these circumstances there was insufficient proximity between the Board and the objects of the duty. Again I disagree. The duty alleged is a duty owed to a determinate class - professional boxers who are members of the Board. In 1991 there were only about 550 active boxers, of which almost all were semi-professional. In Caparo v Dickman the Court recognised a duty of care owed by auditors to all the members of a company. The numbers of those to whom the duty is alleged to be owed in the present case are not incompatible with the requirements of proximity.
76. Next Mr Walker argued that the Board did not create the danger of injury or the need for medical assistance. In these circumstances the Board should owe no greater duty of care than that imposed on a rescuer, that is a duty to exercise reasonable care not to make the situation worse, but no duty to reduce the damage that would have occurred in any event had the rescuer not intervened - see Capital and Counties plc v. Hampshire County Council.
77. In my judgment there is a clear distinction between the role of the Board and the role of a fire service or the police service. The latter have the role of protecting the public in general against risks, which they play no part in creating. There is a general reliance by the public on the fire service and the police to reduce those risks. In these circumstances there is no close proximity between the services and the general public. There are also reasons of public policy for not imposing a duty of care to individuals in relation to the performance of their functions. These are explored in the authorities to which I have referred earlier.
78. In contrast the injuries which are sustained by professional boxers are the foreseeable, indeed inevitable, consequence of an activity which the Board sponsors, encourages and controls. The conduct of the activity of professional boxing carries with it, for the small body of men that take part in it, the need for the provision of medical assistance to treat the injuries that they sustain and minimise their adverse consequences. It seems to me that, but for the intervention of the Board, the promoter would probably owe a common law duty to the boxer to make reasonable provision for the immediate treatment of his injuries. An analogy can be drawn with the duty of an employer, whose activities involve a particular health risk, to make provision for its employees to receive appropriate medical attention - see Stokes v. Guest Keen & Nettlefold (Bolts & Nuts) [1968] 1 WLR 1776.
79. The Board, however, arrogates to itself the task of determining what medical facilities will be provided at a contest by (i) requiring the boxer and the promoter to contract on terms under which the Board's Rules will apply and (ii) making provision in those Rules for the medical facilities and assistance to be provided to care for the boxer in the event of injury. In this way the Board reduces this aspect of the promoter's responsibility to the boxer to the contractual obligation to comply with the requirements of the Board's Rules in relation to the provision of medical facilities and assistance. The Board assumes the responsibility of determining the nature of the medical facilities and assistance to be provided.
80. These facts bring the Board into close proximity with each individual boxer who contracts with a promoter to fight under the Board's rules. The comparison drawn by Mr Walker between the Board and a rescuer is not apt.
81. These considerations lead to the final point made by Mr Walker in the context of proximity. He emphasised that the Board does not provide medical treatment or employ doctors. It acts as a regulatory rule making body. Mr Walker accepted that if Mr Watson had specifically asked the Board for advice as to the precautions that he ought to have in place for his fight, and the Board had given advice, the Board would have been under a duty to exercise care in giving that advice. In laying down Rules for the benefit of boxers generally, however, Mr Walker submitted that the Board was under no duty of care. He criticised the Judge for saying that there was no difference in principle between "giving advice about safety and laying down rules to provide for safety".
82. In my judgment there is a difference in principle between making Rules and giving advice, but it is not one which assists the Board. Had the Board simply given advice to all involved in professional boxing as to appropriate medical precautions, it would be strongly arguable that there was insufficient proximity between the Board and individual boxers to give rise to a duty of care. The Board, however, went far beyond this. It made provision in its Rules for the medical precautions to be employed and made compliance with these Rules mandatory. As Mr Morris accepted, by reason of its control over boxing the Board was in a position to determine, and did in fact determine, the measures that were taken in boxing to protect and promote the health and safety of boxers.
83. These facts produced a relationship of close proximity between the Board and those of its members who were professional boxers.
Reliance
84. So far I have not dealt with the question of reliance by Mr Watson on the exercise of care by the Board. This has relevance to a number of the points discussed above. It was Mr Walker's submission that there was no reliance. It was a matter for Mr Watson to choose whether or not to compete subject to the Board's rules. The provision made by those rules in relation to medical assistance was plain. It was open to Mr Watson to provide, or to stipulate for the promoter to provide, additional medical precautions. Some boxers employed their own doctors. Thus Mr Watson voluntarily submitted to any risk associated with inadequacy of medical safeguards.
85. I found this submission unrealistic. The Board had, or had available, medical expertise. The Board held itself out as treating the safety of boxers as of paramount importance. It carried out this function by making and imposing rules dealing with the safety of boxers, by approving medical officers and by giving detailed guidance as to the qualifications and equipment those officers should bring to the ringside. A boxer member of the Board would not be aware of the details of all these matters. More significantly, he would not be in a position to know whether the provisions that the Board required to be put in place represented all that it was reasonable to provide for his safety. Boxer members of the Board, including Mr Watson, could reasonably rely upon the Board to have taken reasonable care in making provision for their safety. The Judge did not rely upon the specific evidence given by Mr Watson about reliance. He inferred that professional boxers would be unlikely to have an innate or well informed concern about safety. Thus the Board was a body with special knowledge giving advice to a defined class of persons in the knowledge that it would rely upon that advice in the defined situation of boxing contests. I consider that the Judge was entitled to conclude that there was in this case reliance by Mr Watson on the exercise of skill and care by the Board in looking after his safety. This is a further factor which tends to establish the proximity necessary for a duty of care.
Fair, Just and Reasonable
86. Many of the matters considered under the heading of proximity are also relevant to the question of whether it is fair, just and reasonable to impose a duty of care in this case. Because the facts of this case are so unusual, there is no category in which a duty of care has been established from which one can advance to this case by a small incremental step. In these circumstances the task is to look at the circumstances in which specific factors have given rise to the duty of care and to consider whether, on the facts of this case, they should also give rise to such a duty. While it is difficult, or perhaps impossible, to avoid a degree of subjectivity when considering what is fair, just and reasonable, the approach must be to apply established principles and standards.
87. While I do not agree with Mr Mackay's submission that Perrett v Collins provides a close analogy to the present case, I do find helpful the formulation of legal principle by Hobhouse L.J. at p.262 which I have set out above. Mr Watson belonged to a class which was within the contemplation of the Board. The Board was involved in an activity which gave it, not merely a measure of control, but complete control over and a responsibility for a situation which would be liable to result in injury to Mr Watson if reasonable care was not exercised by the Board. Thus the criteria identified by Hobhouse L.J. for the existence of a duty of care were present. In this case the following matters are particularly material:
1. Mr Watson was one of a defined number of boxing members of the Board
2. A primary stated object of the Board was to look after its boxing member's physical safety.
3. The Board encouraged and supported its boxing members in the pursuit of an activity which involved inevitable physical injury and the need for medical precautions against the consequences of such injury.
4. The Board controlled every aspect of that activity.
5. In particular, the Board controlled the medical assistance that would be provided.
6. The Board had, or had access to, specialist expertise in relation to appropriate standards of medical care.
7. The Board's assumption of responsibility in relation to medical care probably relieved the promoter of such responsibility. If Mr Watson has no remedy against the Board, he has no remedy at all.
8. Boxing members of the Board, including Mr Watson, could reasonably rely upon the Board to look after their safety.
88. All these matters lead me to conclude that the Judge was right to find that the Board was under a duty of care to Mr Watson.
Policy Considerations
89. Mr Walker urged that a duty of care should not be imposed upon the Board because it was a non profit-making organisation and did not carry insurance. This contention had some similarities to submissions made in relation to the Popular Flying Association in Perrett v Collins. My reaction is the same as that of Buxton L.J. in that case. Considerations of insurance are not relevant. Nor do I see why the fact that the Board is a non profit-making organisation should provide it with an immunity from liability in negligence.
90. Mr Walker also suggested that a finding in favour of Mr Watson in this case would involve postulating that other sporting regulatory bodies, such as the Rugby Football Union, owed duties of care to the participants in their sports in relation to their rules and regulations.
91. It does not follow that the decision in this case is the thin end of a wedge. The facts of this case are not common to other sports. In any event it would be quite wrong to determine the result of the individual facts of this case by formulating a principle of general policy that sporting regulatory bodies should owe no duty of care in respect of the formulation of their rules and regulations. I conclude that the Judge correctly found that the Board owed Mr Watson a duty of care.
Breach of Duty
92. The relevant allegations of negligence can be summarised as follows:
* The Board failed to inform itself adequately about the risks inherent in a blow to the head;
* The Board failed to require the provision of resuscitation equipment at the venue, together with the presence of persons capable of operating such equipment.
* The Board failed to require a medical examination of Mr Watson immediately following the conclusion of the contest.
* The Board failed to ensure that those running the contest knew which hospitals in the vicinity had a neurosurgical capability.
93. In order to explain these allegations, I propose to summarise the evidence on:
* the nature of injuries such as those suffered by Mr Watson;
* the manner in which such injuries were treated in hospital in 1991;
* the manner in which such injuries should have been treated at the ringside and
* the treatment actually provided to Mr Watson.
Boxer's Brain Damage
94. Where a blow to the head results in immediate impairment or loss of consciousness, this is normally the result of temporary deformation of the brain caused by acceleration or deceleration of movement of the head. Effects are usually short-lived and do not produce lasting damage. Mr Watson suffered such an injury when he was knocked down in the eleventh round. Any loss of consciousness was short lived - he regained his feet and walked to his corner.
95. A primary injury such as that described can have secondary consequences which are much more serious. The movement of the brain within the skull may rupture veins, or more rarely an artery, inside the head leading to bleeding which builds up into a blood clot or haematoma. The rise in pressure inside the skull caused by the haematoma results in distortion of the brain. This can, of itself, result in the restriction of the supply of oxygen to the brain. It can also result in disturbance of the processes of breathing so that insufficient air is taken into the lungs to ensure adequate oxidation of the blood. This can lead to an accumulation of carbon dioxide in the blood, which in its turn can cause swelling of the brain and a rise in intra-cranial pressure. This sequence can result in cumulative damage to the brain, leading sooner or later to death.
96. Mr Watson suffered some, at least, of these secondary effects, which were the cause of his permanent brain damage.
Hospital Treatment
97. Where a patient is brought unconscious to hospital as a result of intra-cranial bleeding, the practice is first to apply a process described as resuscitation or stabilisation. This involves intubation, or the insertion of an endotracheal tube. The patient is then artificially ventilated through this tube with oxygen. This increases the oxygen in the blood and reduces the level of carbon dioxide. The brain benefits from the increased supply of oxygen and from a reduction in intra-cranial pressure in so far as this was attributable to excessive carbon dioxide. Such treatment had been standard form in hospitals for many years prior to 1991. In 1991 it was also the practice to infuse with Manitol, though as I understand it this is no longer the case today.
98. Once resuscitation, or stabilisation has taken place, the next stage is neuro-surgery to remove the haematoma and seal any ruptured veins or arteries.
99. Mr Watson received resuscitation and neuro-surgery in hospital in circumstances that I shall describe when I come to deal with causation.
Treatment that should have been provided at the ringside
100. It was the evidence of Mr Watson's experts that, while brain damage of the type I have described is cumulative, what happens in the first ten minutes is particularly critical. In view of this, they said that there should have been available at the ringside resuscitation equipment and doctors who knew how to use this. Mr Watson should have been resuscitated on losing consciousness and then taken directly to the nearest hospital with a neurosurgical capability, which should have been standing by to operate without delay.
101. It is worth setting out the passage of the report of the Board's expert, Dr Cartlidge, which dealt with this aspect of the case.
"One can summarise the aims of treatment of a patient who has been rendered unconscious as the result of a head injury as follows:
1. Stabilise the patient's condition by maintaining an air way and maintaining ventilation
2. Try and prevent and/or treat raised intracranial pressure.
3. Establish an accurate diagnosis as to the intracranial pathology.
A. He could have been treated on the spot, and had an endotrachael tube inserted, been ventilated and thereafter transferred directly to a Neurosurgical Unit where CT scan facilities were available. In other words, he could have been resuscitated on site and then transferred for more specific care.
B. If his condition was satisfactory, he could have been transferred for resuscitation to hospital, there have his condition stabilised and thereafter be transferred to a Neurosurgical Unit for more definitive investigation and treatment.
In any event, option B was the one that was undertaken. The local hospital was close to the boxing ring and therefore the transfer occurred very quickly and during this period of time, as far as I can ascertain, his condition was satisfactory and the insertion of an endotrachael tube was not absolutely necessary. I personally don't think that the decision to follow option B as opposed to option A had any material affect upon Watson...."
The Medical facilities provided to Mr Watson at the ringside
102. The facilities provided accorded with the advice to medical officers issued by the Board's Medical Committee, to which I referred earlier. The material passages of this advice were as follows:-
"The role of Medical Officer at a Professional Boxing Tournament is a very important one and requires an adequate working knowledge of sports medicine, the diagnosis and treatment of acute medical conditions and a working knowledge of the training and dietary requirements of a Professional Boxer and Athlete.
Each doctor is expected to attend a tournament fully equipped to cover all emergencies. He should certainly carry an aphygomamometer and stethoscope, an ophthalmoscope, an auroscope, a patella hammer, a Brooks airway and a padded spatula in case of a rate occurrence of fitting and the need to establish an airway.
As already stated, no tournament is allowed to commence or continue without one doctor sitting ringside. It is not sufficient for the doctor to be in the vicinity of the ring as in the case of an emergency the speed of the doctor's reactions in treating this are all important. The doctors should decide between them who will remain ringside and who will undertake the emergency treatment should the need arise. Throughout these contests the boxers' performance should be noted and any untoward medical problems arising should be reported to the Area Council or Board. At the end of the contest one doctor remains ringside, the other should follow both contestants back to the dressing room and should at least check that both boxers are in a satisfactory condition and if not instigate any treatment that is required, preferably in the treatment room provided. This may entail suturing of a wound, the assessment of the seriousness of any injury or maybe just simple advice concerning future training or contests. If any doubt arises concerning a boxer's condition then referral to a local hospital for emergency treatment or advice should be undertaken and a report sent to the Board.
As already mentioned the referee is in sole charge of the contest, but if a boxer is counted out and fails to rise it is the doctor's duty to get into the ring as quickly as possible and institute emergency treatment should this be required.
Most boxers recover very quickly having been knocked down and counted out and most, in fact, are fully conscious, if somewhat dazed, by the time the count reaches ten. However, should this not be so, then the boxer's gumshield should be removed, an adequate airway established and the boxer put on his left side so that should he fit or vomit he will not obstruct his airway. If the boxer remains unconscious, then full emergency procedures should be undertaken, the stretcher placed in the ring, the boxer very carefully transferred to it, preferably by skilled handlers and, if needs be, the other doctor should by then have rung ambulance control and have contacted the local hospital to inform them of the problem. It is always better to err on the side of caution and even if a boxer has recovered sufficiently to leave the ring unaided, if and when he returns to the dressing room he exhibits any sign of persistent concussion or admits to any persistent headaches, visual disturbance or vomiting he should be immediately transferred to the local hospital where the expert advice of Neurologists and Neurosurgeons can be obtained. Obviously a full report should then be sent to the relevant Area Council or Board and the sooner this is done, from a medical view point, the better."
103. In addition to the two doctors required by the rules, there was, on the direction of the Board, a third medical officer present. There was also an ambulance standing by which had resuscitation equipment and a paramedic who knew how to use this. His evidence was that it was his practice to use it where a patient was experiencing breathing difficulties.
The Judge's Findings
104. The Judge's findings in relation to breach of duty appear from the following passages in his judgment:
"The standard response where the presence of subdural bleeding is known or suspected has been agreed since at least 1980, which is to intubate, ventilate, sedate, paralyse, and in Britain at least, to administer Manitol. The patient can then be taken straight to the nearest neurosurgical unit. Mr Hamlyn said, and I accept, that there would have been very few British neurosurgeons who at this time would have questioned the need to put up a line and administer this diuretic in a case such as the present. Professor Teasdale had some reservations about the effectiveness of some of this, but he accepted that this was standard practice. I have not heard evidence to the effect that the Board or its medical advisers had before this incident considered, and for some reason decided not to follow, what may not unfairly be called this protocol.
I can only conclude that for some reason no thought was given to the practicality of introducing this standard response....
Nothing that I have heard persuades me that there was any impracticality, whether in terms of manpower or in cost to the promoters, in the Board having included such a requirement in their rules. I have had no evidence to suggest that a doctor of suitable grade and with the necessary skills would command a fee substantially in excess of that payable to the Board's doctors under its system, nor that there would be any significant cost in having the necessary equipment to hand....
I am left with the clear impression that the Board's medical advisers have not looked outside their personal expertise. The Board has argued that until this accident no-one had suggested that they should institute this protocol. That is true as a fact. The duty of the Board and of those advising it on medical matters, was to be prospective in their thinking and seek competent advice as to how a recognised danger could be combated. In some circumstances it can be very relevant to show that no criticism had been received about this or that practice but I have seen nothing to suggest that that is a point in this context....
Accordingly, I am left in no doubt that the Board was in breach of its duty in that it did not institute some such system or protocol as Mr Hamlyn was to propose. There is no question but that anyone with the appropriate expertise would have advised such a system whatever reservations they may have had, as had Professor Teasdale, about its ultimate utility."
105. Later in the judgment the Judge suggested, by implication, that the Board's rules should have included a requirement that a boxer who was knocked out, or seemed unfit to defend himself, should be immediately seen by a doctor.
Subsequent Events
106. The Judge's reference to Mr Hamlyn was to a Neurosurgeon who operated on Mr Watson at St Bartholomew's Hospital and who gave evidence on his behalf at the trial. Mr Watson was the third boxer on whom Mr Hamlyn had operated for similar injuries. His belief was that the brain damage that occurred in each case could probably have been avoided in whole or in a large part if the boxer had received immediate resuscitation at the ringside. On his initiative a meeting took place with the Minister for Sport, two of Mr Hamlyn's colleagues, the Board's Chief Medical Officer, Dr Whiteson, and other board officials on 16th October 1991. At this meeting Mr Hamlyn expressed the view that it was vital that at the ringside there should be the right doctors with the right equipment. This meant doctors able to intubate and put up a drip to treat the injured boxer immediately with Manitol. It was also important to have a prior arrangement with the hospital with a neurological unit, and with that unit placed on standby. These recommendations Mr Hamlyn set out in a detailed paper for the Board two days later. The Board's Medical Committee met to consider these on the 22nd October 1991 and made recommendations which included the following:
"1 The nearest hospital with a neurological unit should be notified of the date of each tournament held under the Board's jurisdiction and must be on alert in case of serious head injury. The hospital should be requested to confirm that a Neuro-Surgeon would be on stand-by.
2. An ambulance should be on site from the start of the tournament, possibly with a crew of trained para-medics. The ambulance should be prepared to go direct to the Neurological unit that had been placed on stand-by.
3. Resuscitation equipment should be at ringside along with person(s) capable of using it".
107. The Board accepted these recommendations and promulgated them by way of guidance. Subsequently they were incorporated in the Rules by an addition to Regulation 8. The most material part of this reads:
"The Senior Medical Officer shall arrange for full and adequate resuscitation equipment (including intubation and ventilation equipment) to be available at the ringside of the venue. No contest shall take place unless fully trained personnel are able to operate such resuscitation equipment are present throughout the promotion."
The Board's Challenge to the Judgment
108. The first challenge to the Judge's finding on breach of duty was that he applied the wrong test. The Board's Grounds of Appeal argued that in making policy decisions, the Board ought not to be held to be negligent unless such decisions were found to be wholly irrational. This appears to be an attempt to import into the law of negligence concepts of public law. If so, it is misguided. The issue in this action is not whether the right policy was adopted but simply whether proper care was used in making provision for medical treatment of Mr Watson. The ordinary test of reasonable skill and care is the correct one to apply.
109. The Board next drew attention to evidence that a member of the public having sustained brain damage in a road accident would not expect to receive from the ambulance attending the scene the resuscitation service which the Judge held should have been available at the ringside. The Board argued that this demonstrated that the standard applied by the Judge was too high. This point was put to the Judge. He rejected it, holding that the standard to be expected of an ambulance dealing with every kind of medical emergency was not the same as the standard to be expected from those making provision for a particular and serious risk which was one of a limited number likely to arise.
110. I think that the Judge was right. Serious brain damage such as that suffered by Mr Watson, though happily an uncommon consequence of a boxing injury, represented the most serious risk posed by the sport and one that required to be addressed.
111. The next ground advanced by the Board in support of the contention that the Judge applied too high a standard, was that there was no evidence that any other boxing authority in the World imposed more rigorous requirements than those of the Board's rules. The Judge accepted that this was the case but ruled that in the final analysis that it was for the Court to determine whether even the most widely followed practice was acceptable. In this the Judge was correct.
112. Next the Board argued that the presence of an ambulance, with resuscitation equipment, should have satisfied the Judge that this aspect of medical care was adequately provided. There are a number of problems with this submission. In the first place the paramedic in the ambulance was not trained to use resuscitation equipment as a matter of course where a head injury was involved. He would only use it to overcome breathing difficulties. In the second place it was not practical to use this equipment while the ambulance was on the move. In these circumstances, it is no cause for surprise that the equipment was not in fact used. The essence of Mr Watson's case is that there should have been a system under which such equipment would not merely be available, but used immediately in the event of a brain injury.
113. The Board also argued that the nearest hospital with an Accident and Emergency Department was so close that a system which delayed the possibility of resuscitation for the few minutes that would be necessary to get to the hospital, was satisfactory. In fact, it took very much longer than a few minutes to get to the hospital, for reasons that were not identified at the trial. In my judgment the Judge was entitled to conclude that the standard of reasonable care required that there should be a resuscitation facility at the ringside. Had the ambulance been, in fact, just as satisfactory, this would have meant that the absence of a Rule requiring such a facility would have had no causative effect. That, however, did not prove to be the position.
114. Next the Board attacked the implicit finding of the Judge that the Rules should have required the doctor to enter the ring as soon as a boxer was counted out or deemed unfit to defend himself. The Board contended that this was unjustifiable, since it would require Rules which in effect instructed doctors as to how to perform their duties. I find this distinction between instructions as to duties and instructions as to how to perform duties elusive and over subtle. I see no reason why the rules should not have contained the provision suggested by the Judge. In any event I believe that this point vanishes when causation is considered.
115. The final point taken by the Board was that they did not receive advice in relation to the desirability of ringside resuscitation until after Mr Watson's injuries. The Board argued that, until they received such advice, they could not reasonably be expected to alter their recommendations and rules in relation to ringside treatment.
116. The evidence certainly supports the proposition that it was Mr Watson's injuries, and the subsequent advice given by Mr Hamlyn, that caused the Board to change its practice. Dr Ross, the Board's Chief Medical Officer for the Southern Area, was asked why the Medical Committee did not make the recommendations made after Mr Watson's injuries at an earlier stage. He answered that it took something like the injury to Mr Watson to make the Committee think of changing the practice. "It is these sorts of accidents which provoke the changes".
117. Mr Watson's injuries were not, however, without precedent. There had been a number of similar cases in the 1980's. The issue is whether the standard of reasonable care required the Board to change their practice in order to address the risks of such injuries before the Watson/Eubank fight.
118. There was evidence that the Board's Medical Committee met regularly to consider medical precautions. Mr Morris told the court that he would expect the Medical Committee, and its Chief Medical Officer, to keep abreast of developments in sports medicine that impacted on the safety of boxers in the ring. Dr Ross, who was a member of the Medical Committee for a number of years before the Watson fight, was asked whether he remembered discussions about treatment in the ring of head injuries before that fight. His answer was that he was sure that these things were discussed but he could not remember. Questioned further by the Judge, he agreed that to the best of his recollection, there was no discussion during the 1980's about whether the practice of stabilising victims of head injuries at the scene of the event, should be applied to the sport of Boxing.
119. The witness best placed to deal with the consideration, if any, given to this matter would have been Mr Whiteson. The Board had given notice that he would be called as a witness and submitted the witness statement from him. In the event, without explanation, he was not tendered as a witness and objection was taken to the use of his witness statement. A Respondent's Notice was served contending that the Judge could and should have drawn an adverse inference from his failure to give evidence. I consider that the Judge could properly have done so. Without so doing, however, the Judge concluded that for some reason no thought was given to the practicality of introducing at the ringside what he found had been a standard response, where the presence of sub-dural bleeding was known or suspected, since at least 1980. The Judge went on to review such statistical evidence as there was in relation to the frequency of occurrence of head injuries in boxing and observed that there had been no evidence to suggest that the Board considered and balanced the difficulty of providing the adequate response to the risks of head injury against their frequency of occurrence and severity of outcome.
120. The Board called to give evidence Mr Peter Richards, a Consultant Neuro-Surgeon with Charing Cross Hospital between 1987 and 1995. He had particular experience of brain injuries caused by sporting activities. He was present at the meeting held with the Minister for Sport after Mr Watson's injuries. He gave evidence that he agreed with Mr Hamlyn's views. Had he been asked in the period before the Eubank/Watson fight to advise on precautions in relation to the risk of serious head injury, he said that he would have given the same advice as Mr Hamlyn.
121. The Judge held that it was the duty of the Board, and of those advising it on medical matters, to be prospective in their thinking and to seek competent advice as to how a recognised danger could best be combated. He held that he was left in no doubt that the Board was in breach of its duty in that it did not institute some such system or protocol as that which Mr Hamlyn was later to propose. He held that anyone with the appropriate expertise would have advised the adoption of such a system. I consider that these were proper findings on the evidence and that Mr Watson's case on breach of duty was made out.
Causation - The Point Taken
122. The Notice of Appeal contended that there was no evidence that, had the rules contended for by Mr Watson been in place, he would have been treated any differently; the Judge should have found that none of the doctors present, nor the ambulance man, would have intubated the claimant, whatever equipment had been available, because he was breathing spontaneously.
123. This ground of appeal would have been unsustainable. Mr Watson's case, in essence, was that there should have been a different regime in place - Mr Walker described it as an intensive care unit at the ringside. The doctors who were actually present were not aware of the desirability of immediate resuscitation of a victim with a brain haemorrhage. They did not have the expertise in providing such resuscitation; nor did they have the necessary equipment. Had the Board's rules required Mr Hamlyn's protocol to be put in place, the doctors present could have been expected to have resorted to resuscitation.
124. In the event Mr Walker did not put this pleaded Ground of Appeal at the forefront of his argument. Instead he argued that even if resuscitation had been used, it would have been used too late to affect the outcome. This submission involves considering the timing of events and the Judge's findings in relation to the impact of these on causation. The fight was terminated at 22.54. Mr Watson collapsed unconscious within a minute or so of this. In the chaos that then ensued, Mr Watson was surrounded by his team, which included a number of bodyguards. None of the three doctors present went to his assistance until requested to do so. The first of these to enter the ring, Dr Shapiro, reached Mr Watson seven minutes after the fight had been stopped, i.e. about 23.01. Dr Shapiro examined Mr Watson and put a Brookes Airway into his mouth to maintain his airway. Mr Watson was put on a stretcher, which was placed on a trolley and wheeled towards the ambulance. The time was now 23.08. The ambulance took him to North Middlesex Hospital, which was less than a mile away. The agreed time of reception at the hospital was 23.22. It is not clear why the ambulance took so long to reach the hospital. At the hospital Mr Watson was given the conventional resuscitation procedure - that is intubation, ventilation, oxygen and an infusion of Manitol. He was held at North Middlesex Hospital until 23.55 to ensure that he was stabilised for the onward journey, and then taken to St. Bartholomew's Hospital. There he arrived in the scanning room at 00.30 on 22nd September. An operation was carried out to remove a moderate size haematoma and to close such veins as were found to be oozing blood. After the operation Mr Watson was taken to the intensive care unit where he arrived at 04.45. Later that day, there was a rise in intra-cranial pressure and a second operation was performed, on this occasion by Mr Hamlyn, to remove a new collection of blood and staunch a bleeding vein and artery.
125. The relevant findings of the Judge were as follows:-
"If the protocol had been in place, and Dr Shapiro had been required to go straight to the ring, he would have begun the necessary procedures within a minute or two of the collapse and so by 23.00. It would only have added three minutes or so if he had waited until he was summoned. In the event those same procedures could not have been begun before 23.25 at the earliest, to allow some time for an examination after the claimant's recorded time of arrival at the North Middlesex. At least 20 minutes, and probably nearer 30 minutes, could have been saved. Any necessary discussion with a neurosurgeon could as easily have been done from the venue....
In my view the Claimant makes his case on causation when he shows, as he has done, that with the protocol in place he would have been attended from the outset by a doctor skilled in resuscitation, who would have made any necessary inquiries of the neurosurgeons at St. Bartholomews, who would themselves have been on notice. The Claimant would have been resuscitated within a few minutes of 23.00 and in St. Bartholomews by 23.45 at the latest. In effect, Dr Cartlidge's ideal world would have been in being, and the Claimant's outcome would have been materially improved....
On the evidence earlier treatment would have made a significant difference to the outcome....
The final question is, to what extent? I do not believe that the evidence admits of any accurate answer to this question but that is by no means an uncommon situation in cases of this sort. Medical knowledge does not enable one to say what, on the balance of probabilities, would have been the outcome if the protocol had been in place and followed."
126. The Judge held that on these facts Mr Watson was entitled to recover for his injuries in full, relying on the authorities of McGhee v The National Coal Board [1973] 1 WLR 1; Wiltshire v Essex A.H.A. [1988] 1 AC 1074 at 1090; and Hotson v East Berkshire Area Health Authority [1987] 1 AC 750 at 783. The Judge summarised his findings on the facts as follows:-
"Here all that is clear is that on the balance of probabilities the Claimant's present state would have been materially better than it actually is. It is not possible to measure even on the balance of probabilities where the damage would have stopped if the protocol had been followed. The occurrence of a haematoma could not have been prevented but its effects could have been mitigated. So the tortious damage may be seen as consecutive to, and aggravating, that which was inevitable....
On the facts of the present case the Claimant suffered only a minor primary injury. He would thus have developed the subdural haemorrhage in the most favourable circumstances possible, short of doing so in hospital with staff around him. The probability must therefore have been that he could have been among those patients who would have had a favourable outcome, or no circumstance peculiar to his physical make-up has been identified to suggest why that should not be so".
127. Mr Walker's challenge to these findings was based on a single point. He submitted that, having regard to the chaos prevailing at the end of the fight, Mr Watson would not have received medical attention for seven minutes, even if the Hamlyn protocol had been in place. By then, so he submitted, the evidence established that the damage would have been done. This argument was allied to Mr Walker's submission that the Judge should not have found that the rules should have required immediate medical attention to be given to a boxer where his physical condition led to the contest being stopped.
128. The Judge did not find that the lapse of time between Mr Watson becoming unconscious and Dr Shapiro being called to assist was critical. His comment that "it would only have added three minutes or so if he had waited until he was summoned" suggests to the contrary. The Judge was impressed with the fact that, even then, resuscitation would have been commenced at least twenty and probably thirty minutes before in fact it was.
129. The evidence of the expert witnesses called on behalf of Mr Watson was that the first ten minutes after loss of consciousness were critical. Thereafter the effect of delay was less important, although brain damage occurred cumulatively until death. On the evidence I consider that the Judge was entitled to find that, even if resuscitation had not been commenced until after help was summoned, it would probably have resulted in a significantly better outcome for Mr Watson. Plainly, however, the longer the delay, the more serious the outcome.
130. I have already indicated that I do not accept the basis of the challenge of the Judge's finding that the protocol in place ought to have included a requirement for a doctor to attend immediately where a fight was stopped because a boxer could no longer defend himself. Even absent such an express requirement, it seems to me that if the protocol had been in place, the doctors present should have been aware of the desirability of examining Mr Watson's condition in the circumstances that had occurred, whether or not the rules expressly required this. It seems to me that this is almost implicit in Mr Walker's argument that to issue such a requirement expressly, was to instruct a doctor as to how to perform his duty.
131. A defendant seeking to disturb the findings of fact of a trial Judge in relation to causation undertakes a hard task. I consider that the Judge was entitled to find on the evidence, that had the Hamlyn protocol been in place, the outcome of Mr Watson's injuries would have been significantly better. On the law relied upon by the Judge, this was all that Mr Watson needed to succeed.
132. For these reasons I would dismiss this appeal.
LORD JUSTICE MAY
133. I agree that this appeal should be dismissed for the reasons given by Lord Phillips M.R.
LORD JUSTICE LAWS
134. I also agree
Order: Appal dismissed with costs on the issues of liability and causation here and below, those costs to be assessed forthwith on to Legal Services Assessment; £18,000 in Court to be paid out in part satisfaction of those costs forthwith; detailed assessment on standard basis; Legal Services Commission taxation; application for permission to appeal to House of Lords refused.