England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		(MR JUSTICE HOLLAND) Royal Courts of Justice The Strand London
		27 June 2001

1. THE LORD CHIEF JUSTICE: I will ask Lord Justice Tuckey to give the first judgment.
2. LORD JUSTICE TUCKEY: On 30 September 1994, the appellant, Peter Caldwell, who was then a professional jockey, was seriously injured whilst riding in a two mile novice hurdle race at Hexham. Holland J dismissed his claim for personal injuries against the two respondents who are also professional jockeys and were riding in the same race.
3. It was common ground that participants in competitive sport owe one another a duty of care. The appellant's complaint is that the judge set the standard of care too low; that he effectively required proof of deliberate or reckless disregard for safety. If he had applied the correct standard, in any event, he would or should have found that the respondents were negligent.
4. The accident involved four horses: Fion Corn, ridden by the appellant; Master Hyde, ridden by the first respondent, Adrian Maguire; Mr Bean, ridden by the second respondent, Mick Fitzgerald; and Royal Citizen, ridden by Derek Byrne. Royal Citizen on the inside, Mr Bean on his right, and Master Hyde on the outside, jumped the second last hurdle of the race together. However, after the jump and as the three horses approached a left-hand bend about 100 yards up the course, Mr Bean and Master Hyde pulled three-quarters of a length ahead of Royal Citizen on their inside and took a line which left no room for Royal Citizen on the bend. What happened next is described by the judge as follows:

"It is clear that Mr Byrne left the second last determined to do as before, that is to ride Royal Citizen so as to make up ground lost by slow jumping -- and thus retain a position on the inside of Mr Bean. Hence he urged his mount forward between the rail on his near side and Mr Bean, aiming to make up the three-quarter length deficit. He was conscious that this gap was closing with the effect of the Second Defendant's line being compounded by the alignment of the rail and he shouted a warning that was in the event, as I find, unheard. His persistence in the heat of the race was maintained; that of Royal Citizen was not. The horse shied from the closing gap and 'jinked' to the right away from the gap and rail, veering across the course behind Mr Bean. This manoeuvre unseated his jockey (who suffered bruising) and served to obstruct and bring down the close following Fion Corn so that the Claimant went to the ground sustaining far more serious injury."

5. Following the race there was a stewards inquiry at which the respondents were found guilty of careless riding "in that they had not left enough room for Byrne to come round the inside rail". They were each suspended for three days.
6. The relevant Jockey Club Rules are rule 152(ii) which says:

"The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given a full opportunity to win or of obtaining the best possible placing."

7. And rule 153(iii) which says:

"The rider of any horse who, in the opinion of the Stewards of the Meeting or the Stewards of the Jockey Club, has been guilty of reckless, irresponsible, careless or improper riding or has intentionally caused interference in any part of a race shall be guilty of an offence."

8. Guidance issued to the stewards defines "careless riding" as:

"A rider is guilty of careless riding if he fails to take reasonable steps to avoid causing interference or causes interference by misjudgment or inattention."

9. Based on statistical evidence, the judge concluded that careless riding was a relatively common offence (the statistics showed that in 1999 there were 129 cases) and (as he described it) "low in terms of heinousness" by comparison with the other offences referred to in rule 153(iii).
10. Two distinguished experts, John Francome and Carl Llewellyn, gave evidence at the trial. They agreed with the finding of the stewards because they thought that the respondents should not have taken the inside line unless and until they were one length clear of Royal Citizen. Both should have looked to their left to ensure that Royal Citizen was no longer in contention.
11. As to the law, the judge said that the "primary guidance" for him must come from the Court of Appeal. He noted that this court had never had to consider an entirely similar situation, but had considered analogous situations in five cases, which he reviewed. From these cases he extracted five propositions:

"[1] Each Contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants.

[2] That duty is to exercise in the course of the contest all care that is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury to such fellow contestants.

[3] The prevailing circumstances are all such properly attendant upon the contest and include its object, the demands inevitably made upon its contestants, its inherent dangers (if any), its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant. Thus in the particular case of a horse race the prevailing circumstances will include the contestant's obligation to ride a horse over a given course competing with the remaining contestants for the best possible placing, if not for a win. Such must further include the Rules of Racing and the standards, skills and judgment of a professional jockey, all as expected by fellow contestants.

[4] Given the nature of such prevailing circumstances the threshold for liability is in practice inevitably high; the proof of a breach of duty will not flow from proof of no more than an error of judgment or from mere proof of a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race. Such are no more than incidents inherent in the nature of the sport.

[5] In practice it may therefore be difficult to prove any such breach of duty absent proof of conduct that in point of fact amounts to reckless disregard for the fellow contestant's safety. I emphasise the distinction between the expression of legal principle and the practicalities of the evidential burden."

12. The judge then expressed his conclusions as follows:

"Each Defendant was guilty of lapses of care in their riding of their respective mounts away from the second last hurdle so as to contribute to the premature curtailment of the inside line otherwise to be followed by Royal Citizen -- and thus so as to contribute to the Claimant's accident ....

However, in neither instance was the lack of care, when evaluated in the circumstances prevailing in this horse race, of sufficient magnitude to constitute a breach of the duty of care respectively owed to the Claimant, that is to surmount the threshold for liability. Left entirely to myself, that is unaided by experts, I would have found it difficult clearly to identify lack of care on the part of the First Defendant (should he have been concerned with the position beyond the horse on his immediate left?), and the more clear cut failure on the part of the Second Defendant to take account of the position of Royal Citizen is to me (still as a layman) difficult to distinguish in terms of blameworthiness from the failure of Mr Byrne correctly to assess the situation in front of him -- a failure exposed in any event by the behaviour of his horse. As I would evaluate the situation, all three jockeys were guilty of lapses of errors that must be an inevitable concomitant of adrenalin fuelled high speed racing with victory still a prospect. Turn back to the experts: in my judgment they did nothing to disabuse me of such evaluation of the significance of the identified lack of care. With varying degrees of emphasis they left me in no doubt but that this incident reflected the cut and thrust of serious horse racing; in theory, avoidable but in daily practice something that is bound to occur from time to time, no matter how generally careful is the standard of riding. The statistics underline this view -- and Mr Llewellyn is arguably right in suggesting that the video recording shows a similar potential incident earlier in the very same race and concerning other horses, with injury avoided because the jockey trying to retain the inside line preferred discretion to valour at that stage of the race. We are a long way from the sort of conduct that triggers a response from the Courts as well as from the Stewards."

13. Lord Brennan QC for the appellant accepts the first three of the judge's propositions of law, but says that the last two are unduly restrictive and not supported by the Court of Appeal authorities, which the judge considered.
14. The first of the most directly relevant of these is Condon v Basi [1985] 1 WLR 866, where a footballer sued an opponent who broke his leg with a foul tackle. Sir John Donaldson MR, with whom the other two members of the court agreed, accepted the statements of law made in the Australian case of Rootes v Shelton [1968] ALR 33. In that case a water-skier sued the driver of his boat who caused him to collide with another boat in the course of a water ski-ing display. Barwick CJ said at page 34:

"By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime; the tribunal of fact can make its own assessment of what the accepted risks are; but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connection, the rules of the sport or game may constitute one of those circumstances but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist."

15. At page 37 in the judgment, Kitto J observed that it was a moot point whether the plaintiff's voluntary acceptance of the risk bore on the question of duty or the standard of care, and continued:

".... the issue on either view is whether the defendant's act or omission was a breach of the duty of care which he owed to the plaintiff; and, accordingly, in a case such as the present it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of the conduct for the purposes of carrying on of the activity as an organised affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the 'rules of the game'. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances."

16. After citing these passages, Sir John Donaldson MR in Condon said that although these judgments showed a difference of approach, they produced the same results. He preferred the approach of Kitto J who, he said, was

"saying, in effect, that there is a general standard of care, namely the Lord Atkin approach in Donaghue v Stevenson [1932] AC 562 that you are under a duty to take all reasonable care, taking account of the circumstances in which you are placed, which, in a game of football, are quite different from those which affect you when you are going for a walk in the countryside."

17. Surprisingly, the court in Condon were not referred to three earlier Court of Appeal cases. The first two, Wooldridge v Sumner [1963] 2 QB 43, and Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 1 WLR 668, were spectator cases where the claimants were at a horse show (in Wooldridge) and a motorcycle scramble (in Wilks). In Wooldridge the headnote records the substance of the judgment as follows:

"That the relationship of spectator and competitor or player was a special one as the standard of conduct of the participant, as accepted and expected by the spectator, was that which the sport permitted or involved. A person attending a game or competition took the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act might involve an error of judgment or lack of skill, unless the participant's conduct was such as to evince a reckless disregard of the spectator's safety, or was deliberately intended to injure someone whose presence was known so that it was a departure from the standards which might reasonably be expected in anyone pursuing the competition or game."

18. Much the same was said in Wilks. Lord Denning MR compared the position in Wooldridge, where the horse was being shown, to a race. At page 670 he said:

"In a race the rider is, I think, liable if his conduct is such as to evince a reckless disregard of the spectator's safety; in other words, if his conduct is foolhardy."

19. In the third case, Harrison v Vincent [1982] RTR 8, a sidecar passenger sued the motorcycle rider for injuries sustained during a race when he was unable to stop because he missed his gear and his brakes failed at the same time. Sir John Arnold approved the Wooldridge approach as the applicable standard so far as the claim was based on the rider missing his gear, but said the same did not apply to the brake failure because the fault had occurred before the race in the relative calm of the workshop.
20. The last, and the most important of the cases considered by Holland J, is Smoldon v Whitworth (1997) ELR 249. In that case the claimant sued another player and a referee at a rugby match in which he was badly injured when the scrum collapsed. The claim against the player was dismissed, but the referee was found liable and appealed. Lord Bingham CJ, giving the judgment of the court, recorded that the defendant had invited the judge to say that nothing short of reckless disregard for the claimant's safety would suffice to establish a breach of the duty which the referee admittedly owed to the player. The judge, however, had adopted the test proposed by the claimant derived from Condon that the duty was to exercise such degree of care as was appropriate in all the circumstances. The court said that the judge was right to accept the plaintiff's approach. Of the floodgates' argument advanced by the defendant, Lord Bingham said at page 256:

"We do not accept this fear as well-founded. The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one. It will not easily be crossed.

There is in our judgment no inconsistency between this conclusion and that reached by the Court of Appeal in Wooldridge v Sumner and Wilks v Cheltenham Homeguard Motor Cycle Co and Light Car Cycle Club. In these cases it was recognised that a sporting competitor, properly intent on winning the contest, was (and was entitled to be) all but oblivious of spectators. It therefore followed that he would have to be shown to have very blatantly disregarded the safety of spectators before he could be held to have failed to exercise such care as was reasonable in all the circumstances."

21. Holland J was referred to a number of other Australian authorities, as have we. It is not necessary to refer to those cases. The relevant principles to be applied to a case of this kind emerge clearly from the decision of this court in Condon and Smoldon, which are binding on us. In any event these cases show no divergence of approach between the two jurisdictions, not least because in Australia the courts have followed what Kitto J said in Rootes v Shelton, and that is what this court did in Condon. The same can be said for the Canadian case to which we were referred this morning.
22. With these cases in mind, I turn to Lord Brennan's criticism of Holland J's fourth and fifth propositions. He submits that no practical limitations of the kind identified by the judge should be placed upon the standard of care required which simply depends upon what is reasonable in the particular circumstances of the case. The judge's propositions, he says, were derived from cases where the circumstances were different. He formulated the correct test to be applied in such a case by reference to two propositions which he derived from the cases of Condon and Smoldon. The first of those was that players in competitive sports each owe a duty to the others to take reasonable care in the particular circumstances in which they are placed. Secondly, the level of care required is that which is appropriate in all the circumstances, the practical content of the duty differs according to the quite different circumstances of sporting activity.
23. I have no difficulty with these propositions. I do not, however, accept Lord Brennan's criticism of the way in which the judge formulated his fourth and fifth propositions. In his third proposition he very helpfully identified the circumstances which had to be considered in this particular case. Lord Brennan does not, and cannot, object to those which he identified. In his fourth and fifth propositions, the judge made it clear that he was referring to "the practicalities" of the evidential burden and not to legal principle. All he was saying was that, in practice, given the circumstances which he had identified, the threshold for liability was high. Lord Bingham CJ said the same of a referee in Smoldon, even though, as he pointed out, the referee was not in the same position as a player because one of the referee's responsibilities was the safety of the players. Lord Brennan accepted that the threshold of liability as between participants must be at least as high as that between player and referee. The judge did not say that a claimant has to establish recklessness. That approach was specifically rejected by this court in Smoldon. As in Smoldon, there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required. I do not think it is helpful to say any more than this in setting the standard of care to be expected in cases of this kind.
24. For these reasons I do not think that the judge applied the wrong standard of care in this case. This conclusion inevitably makes Lord Brennan's task on his second ground of appeal more difficult. He submits that the judge should in any event have found the respondents liable. An incident of this kind was not something which was bound to occur from time to time, as the judge said. The evidence, he submits, did not support the view that such an incident was part of the cut and thrust of serious horse racing. He was wrong to suggest that it was only "in theory" avoidable. The rules were designed to prevent such accidents happening by ensuring that jockeys did not ride their horses so as to cross the path of another horse when it was too close. The danger created by ignoring these rules was great, as this case shows. The incident could and should have been avoided by a simple glance to the left. The Jockey Club's finding that the respondents were guilty of careless riding support and establish the view that this is a classic case of negligence for which the respondents should have been held liable.
25. In support of his attack on the judge's conclusion, and to enable us to understand the case properly, Lord Brennan invited us to view videos of the race, which the judge obviously found very helpful. We have done so. He also supported his submissions by references to the transcript, from which it emerges that the second respondent, Mr Fitzgerald, did not look to his left because he assumed (as he put it) that "Derek (Mr Byrne) had gone", that is to say it was safe to take the inside line because he was clear of Royal Citizen. He also said that he would have expected Mr Byrne to shout if his line was being taken by the horses ahead. As we know, Mr Byrne did shout but, unfortunately, as the judge found, his shout was not heard.
26. The transcript also shows that the experts were less agreed than the judgment suggests. Mr Llewellyn was very critical of Mr Byrne for going for the gap. He gave evidence that crossing incidents of the kind involved in this case occur as many as five or six times in the course of a day's racing.
27. Having seen the videos, and carefully considered Lord Brennan's submissions, I do not think that the judge's conclusion can be faulted. The situation he was considering was graphically described in one of the other Australian cases to which I have referred and which the judge quoted at the end of his judgment. The Australian judge said:

"Thoroughbred horse racing is a competitive business, which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are limited."

28. In such circumstances it is not possible to characterise momentary carelessness as negligence. That was the position here. This incident occurred in the last part of a close race. The respondents should, as they admitted and the judge found, have checked to see that the line they were taking was safe. Like the judge, however, I do not think that their failure to do so can be characterised as anything more than an error of judgment, an oversight or a lapse which any participant might be guilty of in the context of a race of this kind. It was the sort of incident which happens quite often. What was unusual about this incident (as Mr Francome put it) "was the exceptional seriousness of the injury sustained by the appellant". The Jockey Club's rules and its findings are of course relevant matters to be taken into account, but, as the authorities make clear, the finding that the respondents were guilty of careless riding is not determinative of negligence. As the judge said, there is a difference between response by the regulatory authority and response by the courts in the shape of a finding of legal liability.
29. For these reasons I do not think that Lord Brennan's second ground of appeal succeeds and I would dismiss this appeal. In doing so, I express my sympathy for the appellant who sustained very serious injury but, unfortunately, that is an injury for which, as I see it, he cannot be compensated through the courts.
30. LORD JUSTICE JUDGE: I agree. In an action for damages by one participant in a sporting contest against another participant in the same game or event, the issue of negligence cannot be resolved in a vacuum. It is fact specific.
31. We are here concerned with a split-second, virtually instantaneous, decision made by professional sportsmen entrusted with powerful animals, paid and required by the rules of their sport to ride them, at speed, to victory or, failing victory, to the best possible placing: in other words, to beat all the other horses in the race, or endeavour to do so. The course has no lanes; nor is it straight. The horse, as this case demonstrated, has a will of its own. The demands on professional jockeys to ride at all are very heavy. They require skill and physical and mental courage. To win, beyond skill and courage, they need determination and concentration, the ability rapidly to assess and re-assess the constantly changing racing conditions, and to adjust their own riding and tactics accordingly -- a quality that must depend in part on experience and in part on intuition or instinct.
32. Accidents and the risk of injury, sometimes catastrophic, both to horses and to riders, are an inevitable concomitant of every horse race -- certainly over hurdles. All National Hunt jockeys know the risks. The rules of racing which bind them all, and the jockeys' own responsibilities to each other during the race, properly fulfilled, are intended to reduce the inevitable risks. But they cannot extinguish them. And, as a final ingredient, what is actually taking place on the real racecourse is not nearly as sanitised as it can appear to be even to spectators in the stand or, more particularly, to those watching at home on television. Jockeys and horses are often in close proximity to the other runners. There is a good deal of noise and inevitable tension. Mistakes by riders and horses are inevitable; and fortune, good or bad, plays its part in each race, as it does in any other sporting event.
33. The defendants in this case were held by Holland J, after he had considered the evidence, to have made errors or lapses of judgment. What they failed to do was sufficiently to allow for the presence of the horse ridden by Mr Byrne on their inside. If they had done precisely what they did do, at a time when their horses were a few additional yards further ahead of Mr Byrne's mount than they were, no error of judgment would have taken place and their riding would have been commended. In exclusively racing terms they were right to go for the inside line. Their error in the heat and commitment of the race was to misjudge the exact opportunity that was available to them to take. They did not appreciate that Mr Byrne's horse had not gone backwards as far as they thought it had. As they assumed that he was no longer in contention for the inside line, they did not physically look out for him. Their assumption was wrong, in real terms by no more than a few yards. They made what the Jockey Club Stewards decided was a breach of the relevant rules and what Holland J considered was an error of judgment.
34. I agree with Tuckey LJ's analysis of the legal principles. I would, however, emphasise two particular points. First, it is clear from the authorities that a finding that a jockey has ridden his horse in breach of the rules of racing does not decide the issue of liability in negligence.
35. In his judgment in Rootes v Shelton [1968] ALR 33, 37, Kitto J said:

".... the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the rules of the game. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances."

36. That approach was adopted by Sir John Donaldson MR, with the agreement of the other members of the court in Condon v Basi [1985] 1 WLR 866. It seems to be consistent with the subsequent authorities.
37. Second, in the context of sporting contests it is also right to emphasise the distinction to be drawn between conduct which is properly to be characterised as negligent, and thus sounding in damages, and errors of judgment, oversights or lapses of attention of which any reasonable jockey may be guilty in the hurly burly of a race. That principle was explained in the context of an action by a spectator against a participant in Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 1 WLR 668 by Edmund Davies LJ who said at page 674:

".... although in the very nature of things the competitor is all out to win and that is exactly what the spectators expect of him, it is in my judgment still incumbent upon him to exercise such degree of care as may reasonably be expected in all the circumstances. For my part, therefore, I would hold him liable only for damages caused by errors of judgment or lapse of skill going beyond such as, in the stress of circumstances, may reasonably be regarded as excusable."

38. The same principle was analysed by Lord Bingham CJ in his judgment in Smoldon v Whitworth, recently referred to by Tuckey LJ in his judgment.
39. The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast moving and vigorous context. The threshold of liability is a high one. It will not easily be crossed.
40. That case involved an action against a referee. Referees have specific responsibility for the safety of the participants in the sport. It is clear from the passage in Lord Bingham's judgment that a referee would be entitled to escape liability in negligence for what was no more than oversight or error of judgment. It seems to me to follow that a participant who has caused injury to another participant in the same game or contest should be similarly entitled.
41. Accordingly, for the reasons given by my Lord, and in this short judgment, Holland J was entitled to find that negligence had not been established against the defendants. Notwithstanding the catastrophic injuries which this unfortunate claimant sustained, in my judgment this appeal should be dismissed.
42. THE LORD CHIEF JUSTICE: I agree with both judgments.
ORDER: Appeal dismissed; the costs of the two respondents to be paid by the appellant insofar as a Costs Judge may so determine and by the Commission insofar as a Costs Judge may so determine. (Order does not form part of approved Judgment)