The High Court re-confirms the test in negligence between sporting competitors

Published 17 enero 2022

“You don't have to be Einstein to see that horse racing is dangerous.”

So said National Hunt jockey Tony McCoy (now Sir Anthony McCoy), and if anyone should know it’s him. In a career in which he rode 4,358 winners, and was Champion Jockey a record 20 consecutive times, he has doubtless encountered all the risks that the ‘Sport of Kings’ has to offer.

It was the inter-relationship between the inherent risks of the sport and the duties owed by participants to each other which came before the court in December 2021 in the well-publicised case of Tylicki v Gibbons [2021] EWHC 3470 (QB). 

The Claimant, a jockey, brought a claim against the Defendant, another jockey, for serious and life changing injuries suffered in a fall during a race in which they were both riding. In short, the Claimant’s case was that the Defendant’s riding was in breach of the duty of care that he owed to the other riders and that this negligent riding had caused the accident in which he had been injured.

While the case attracted much publicity during the trial itself, the post-judgment commentary has been limited, not least because the decision gave rise to no new legal principles and, contrary to what some doomsayers may well have predicted, the sport of horse racing has not been wiped out.

Nevertheless, there are some points worth taking away from the decision, not least the confirmation of the approach required as set out by Judge, LJ in Peter Harvey Caldwell v (1) Adrian Maguire and (2) Mick Fitzgerald [2001] EWCA Civ 1054, namely that:

“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.”

The judge took particular note of the five principles that Holland J had extracted from his review of previous authorities and set out in the first instance judgment in Caldwell.

1. Each contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants. As Barwick CJ found in the Australian case, Rootes v Shelton [1968] ALR 33: by engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime … 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.
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 a 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.”

These principles demonstrate the fact-specific nature of any determinations in this area. They recognise the inherent danger of some sporting activities, the acceptance of risk and its limitations, the duties participants owe to each other, the high threshold for claims to succeed and the wide range of facts and considerations that come into play in every case. Acknowledging that the case is determined on all the circumstances and the factual context in which the incident took place, the judge said:

“Similarly, this case is determined upon all the circumstances and the factual context in which this incident took place. It does not set a precedent either within horse-racing or in sport generally. It is not the thin edge of the wedge.”

Concluding, HHJ Walden-Smith said:

“Horse racing is a sport which requires highly skilled professional jockeys to ride powerful animals, with minds of their own, to win or be best placed as they can. It is highly competitive, and riders require both mental and physical strength and courage. They need to be able to assess and reassess situations and make split second decisions as to what to do, based on skill, experience and intuition.

Risk of injury is part of a professional jockey's life and, while more unusual in flat racing, falls from horses is an inevitable concomitant of horse racing. Interference between horses and findings of carelessness are regular.”

In Tylicki the judge concluded that the Defendant’s actions were not mere lapses of concentration or inattentiveness but rather undertaken with a reckless disregard for the safety of the Claimant and accordingly liability was made out.

In a situation where the bar in proving negligence is set high, on this occasion that bar was cleared. Even sports that are inherently dangerous have standards that need to be met. Participants owe each other duties of care and defining the parameters of the duty in any given set of circumstances is a far from simple exercise. 

Consideration of sport related claims, particularly those involving claims brought by one participant against another, require analysis of a complex factual matrix. Whilst the courts need to provide a source of redress for those injured when appropriate standards are not met, to remove risks in sport would be to remove a significant and in some cases key component of its attraction to competitors and spectators alike and perhaps sound the death knell of some. To date we have not seen sports being “safetyed” out of existence and this judgment provides a good example of the high bar a participant injured during a competitive sporting contest will need to surmount to succeed in a claim in negligence against another. 

DAC Beachcroft have considerable experience defending claims brought as a result of injuries suffered during a wide variety of sports. For more information or guidance please contact one of our experts below.