How does the law of tort apply in the context of sport?

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Negligence and Participants in Sport

Negligence may be defined as the breach of a legal duty owed by a defendant to a claimant for which the claimant has suffered loss. It is now trite law that that there is duty of care between those playing competitive sports – the question therefore arises what standard this duty of care requires. Wooldridge v Sumner set a very high threshold for claimants to meet – the court shall only uphold any claim for negligence where the competitor has shown a reckless disregard for the safety of others. In Condon v Basi, determining the duty was not necessary because the breach was ‘obvious’ although Lord Donaldson MR explicitly based the duty of care in the general duty of care first formulated in Donoghue v Stevenson. Condon v Basi is clear: the general negligence duty of care will apply. That approach is further supported by Smoldon v Whitworth which held that the standard was objective but also: “that which is appropriate in all the circumstances.” Those circumstances include that competitors are expected to go “all out” to win in a competitive contest. 

The application of the Condon v Basi ‘appropriate in all the circumstances’ test has been criticised, not least because of the judge’s obiter dicta statement that gave rise to the potential possibility of a variable standard of care. However, in Elliott v Saunders, it was accepted that all participants ought to be judged by the same basic standard of the ordinary, reasonably competent participant in the particular activity. The main source of criticism, however, emanated from the fact Lord Donaldson MR neglected to define exhaustively the duty of care between competitors in soccer matches. The confusion that has arisen since had been in respect of the degree of carelessness that is required of a defendant in order to establish negligence.

The difficulty faced by a claimant was in proving that the acts of the defendant fell below the standard of the reasonable sportsperson. Not all injury-causing acts are negligent per se, particularly in contact sports. The key question was: (whether) is a breach of the constitutive rules of a sport (was) determinative of liability or is (was) some other standard to be applied?

Much needed clarification on the post-Condon position was offered in Caldwell v Maguire and Fitzgerald. The duty of care was defined as being a duty to exercise ‘all care that is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury’ to other participants. The prevailing circumstances deemed relevant were the objective of the sport, the demands made upon the contestant, the inherent dangers, the rules, the playing culture, conventions and customs, and the standards, skills and judgement reasonably to be expected of a contestant. A breach of rules is not conclusive: all circumstances are relevant.

Historically, there have been two broad views on what the duty of care imposed on participants in sport is, although the two views are closer than they might seem. The duty of a participant is either to not ‘recklessly disregard the safety’ of others, or to do what  is appropriate in all the circumstances – and it will often be appropriate for a participant to take every measure to win, short of reckless disregard of others. The ‘appropriate in all circumstances’ view is to be preferred, because it brings coherence between the duty of care of participants in sport and the wider tort of negligence – but, as the case law makes clear, the duty of participants will often be low, and it will often be necessary to show close to ‘reckless disregard’ in order to show that what was done was not appropriate in all the circumstances.

Some confusion arises because the tort has developed through a range of circumstances that are not all comparable. In negligence, context is everything and therefore it is dangerous to draw comparisons too quickly. Broadly three categories of cases illuminate the duty of care on participants: (i) the duty on participants with respect to their fellow participants, (ii) the duty on participants with respect to spectators, and (iii) the duty of supervising officials, towards participants injured by their fellow participants.

Categories (i) and (ii) are clearly closely related, but the duty on participants is lower with respect to spectators than with respect to fellow players. A “sporting competitor, properly intent on winning the contest, was (and was entitled to be) all but oblivious of spectators” – as such, it makes sense that Diplock LJ’s reckless disregard formulation should indicate the low duty of a participant in the context of an injury to a spectator. It does not follow however, that the reckless disregard standard will always be appropriate: “although the legal duty is the same in the two cases, the practical content of the duty differs according to the quite different circumstances.” 

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That ‘reckless disregard’ is not the test for negligence, but rather might be relevant to whether there has been a breach of the standard that is appropriate in all the circumstances, is clearly shown by Caldwell v Maguire and Fitzgerald. One ground of appeal in that case was that too much emphasis was placed on the difficulty that the claimant will have in showing a breach of the duty of care by the defendant. As the judge at first instance stated:

In practice it may therefore be difficult to prove any such breach of duty absent proof of conduct that ...

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