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 in point of fact amounts to reckless disregard for the fellow contestant's safety (emphasis added)
As the Court of Appeal made clear, as a statement of what may be required to show a breach of the duty of care in the circumstances, this was entirely appropriate. Competitors will not be responsible for ‘lapses of errors that must be an inevitable concomitant of adrenalin fuelled high speed racing with victory still in prospect’.
The reckless disregard standard will not always be appropriate. This is well demonstrated by cases in category (iii). In such cases, the burden on a claimant will be high, but for different reasons to the high burden in categories (i) and (ii). In category (iii) cases, the commission of the tort lies not in the act that directly causes injury, but in a failure to properly supervise – often a failure to take sufficient steps to ensure safe play. The ‘dangerous play’ by participants is relevant simply as a question of causation – if the game had been properly supervised, would the dangerous play not have occurred.
A referee must make quick decisions in the context of a fast flowing game; he cannot directly control the individual actions of participants and he is therefore in a difficult position. He sets the context in which the play takes place however, and where dangerous events repeatedly occur, this indicates he is failing in his duty to enforce rules which exist to make sports safer. As such, although claimants must satisfy a high burden to show negligence, the language of ‘reckless disregard’ is less appropriate.
Vicarious Liability for acts in ‘reckless disregard’ of competitor or spectator safety?
The liability of the organiser of a competitive game (for a referee selected by the organiser) must be trite law; more difficult is the liability of clubs for their competitors when they go beyond the rules of the game, perhaps acting with reckless disregard. It is clear that in such circumstances the competitor will be liable (see Condon v Basi), but the question arises whether their club will also be liable. Whilst there is no direct authority on the point in sports law, the vicarious liability of local authorities for the intentional torts of their employees may provide some guidance.
The House of Lords has indicated that relevant questions will be any closeness of connection between the nature of employment and tort and whether the tort arose within the scope of the tortfeasor’s authority or role. Although any vicarious liability would depend on the facts of the particular case, it could be argued that where a football club chooses to field a player who has a reputation for ‘dirty tackles’ and does not exercise sufficient control over that player, they will be vicariously liable for any torts he commits.
Trespass to the Person and ‘reckless disregard’
Injuries sustained as a participant in a sport may constitute Trespass to the Person (irrespective of whether they are also a breach of a duty of care in negligence). Even if negligence required proof of (the high standard of) ‘reckless disregard’, that tort might be made redundant by a more readily available tort of trespass – and if trespass did not require that ‘reckless disregard’ is shown, this would indicate that irrespective of the position in negligence, participants would still be able to recover damages for their injuries, even in the absence of reckless disregard for the safety of others.
“[A]ny touching of another's body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass” and thus, on its face, trespass does not require ‘reckless disregard’. As always, the devil lies in the detail. Consent will operate as a valid lawful excuse and there will be no liability for trespass which can ‘reasonably be expected to occur in the course of the game.’ Most injuries to participants are likely to be caused by acts outside of what can reasonably be expected to occur however: specifically they are likely to involve breach of the rules that are in place to ensure the safety of participants; a participant would not consent to these breaches. As such, the defence of consent will not operate with respect to these acts and trespass appears a useful tort to injured participants.
There are three significant limitations to the utility of trespass to claimants, however – these indicate that the availability of trespass is not sufficiently wide to make negligence a redundant tort, and furthermore, that in practice trespass does not set a lower standard for (claimants to meet) participants in sporting activities than negligence. Firstly, volenti non fit injuria is a general defence to torts, and therefore equally available against trespass as against negligence: to the extent that ‘reckless disregard’ affects the content of volenti, this therefore affects the availability of trespass.
A second and related point is that the distinction between events that can ‘reasonably be expected to occur’ and those that cannot, is likely to be difficult and to turn on the same questions that determine whether an act is ‘reasonable in all the circumstances’ (the gist of the duty of care in negligence): to the extent that ‘reckless disregard’ affects the content of the duty of care in negligence, it will therefore limit the availability of trespass.
Thirdly the gist of trespass is ‘touching’ (either by the defendant or an object controlled by him) and therefore trespass will only be available against the participant who directly caused the injury (or against those who are vicariously liable for the participant who directly caused the injury). Claimants looking for ‘deep pockets’ may prefer to bring claims against those who supervise or who profit from sporting activities, and these claims (if they will succeed at all) must be in negligence, not trespass.
Defences: volenti non fit injuria
Volenti non fit injuria is a voluntary agreement by the claimant to absolve the defendant from the legal consequences of an unreasonable risk of harm created by the defendant, where the claimant has full knowledge of both the nature and extent of the risk. There are two problems with this defence however, which indicate that it does not modify the role of reckless disregard to the law on injuries arising out of participation in sport.
Firstly, the most problematic requirement of this defence is that the requisite consent “is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk” (emphasis added). This question of when a participant or spectator might consent to a lack of reasonable care being taken is very similar to the question of what events that can ‘reasonably be expected to occur’ (the gist of the consent defence). As discussed in the context of trespass, this question is difficult and likely to turn on the same questions that determine whether an act is ‘reasonable in all the circumstances’ (the gist of the duty of care in negligence). As such, volenti does not seem to add to the issues already considered in the context of the duty of care in negligence.
Secondly, as recognised by the Court of Appeal, whether one places emphasis on the scope of the duty of care itself, or defines a wide duty of care with a corollary wider defence of volenti makes little difference: ‘…two different approaches which, as I see it, produce precisely the same result.’ D McArdle has argued that
“the duty of care cannot be 'excluded' any more than it can be 'modified'. 'Volenti' does not prevent the duty from arising; rather it deprives an injured party of the right to bring an action in respect of it.”
Whilst this may be true as a point of law, both (can) reach the same conclusion as to the proper duty of care, supported by the same reasons, albeit that the reasoning is structured differently.
It is often said that the defence of volenti is a blunt tool and is inappropriate where an arguably ‘fairer outcome’ can be achieved by apportioning responsibility in cases of contributory negligence. Indeed, this was the approach taken at first instance in Blake v Galloway although not by the Court of Appeal who found there was no duty of care, and therefore the question of contribution did not arise. Contributory negligence is only of utility to the extent that the claimant was injured in the context of an activity to which he has chosen to engage – as such, the same questions of the scope of activities that a sportsperson or spectator can be said to have engaged is relevant. As such, contributory negligence adds nothing to the question of the role of reckless disregard in English law.
Unfair Contract Terms Act 1977
If participants or spectators are injured at a sporting event, those responsible for the injury may attempt to point to a contractual term limited their liability. Such limitations of liability are unlikely to be significant in practice however, and have no impact on the role of reckless disregard. Firstly, the defendant and claimant are unlikely to be in a contractual relationship, except perhaps where the claimant is a spectator and the defendant the owner or operator of sports facilities. Secondly, terms that purport to limit liability for death or personal injury resulting from negligence (the category into which most claims arising out of sporting events will fit) are ineffective. Thirdly, the Act takes its definition of negligence from the common law – as such, ‘reckless disregard’ will be relevant only to the extent that it is already relevant to the duty of care in negligence.
Promotion of Volunteering Bill
Volunteers represent a limited class of defendants in injuries arising out of sporting injuries, namely volunteer referees. A private members bill seeks to intervene to protect such volunteers by ordering that a court shall “only uphold any claim for negligence or breach of statutory duty where the volunteer has shown a reckless disregard for safety” thereby cementing the standard first advocated in Wooldridge v Sumner. As many sporting organisations are likely to be either charities, or established for benevolent or philanthropic purposes, and thereby within the Bill’s definition of voluntary organisation, the potential impact of this is wide. However, considering that, in the circumstances, the duty of care owed by referees (or participants) is likely to be low, and the barriers to showing breach of that standard likely to be high, it is unclear what difference this will make in practice.
One the other hand, if the Promotion of Volunteering Bill does represent a significant rebalancing of the interests of injured claimants and certain defendants, it might be hoped that this change was based on evidence that the previous law had a detrimental effect on valuable sporting activity in England and Wales.
Conclusion
Reckless disregard no longer forms part of the test in negligence for those who injure others whilst participating in sporting events. That statement hides the facts that the general duty of care in negligence (what is appropriate in all the circumstances) will often set a high standard for claimants to meet, and in practice showing a breach of the duty of care will require showing reckless disregard.
Consideration of the wider civil law arising from sporting injuries indicates general coherence in this area – this essay has shown that the tort of trespass, as well as the defences of consent and volenti, turn on the same issues as the duty of care in negligence. As such, reckless disregard is relevant in terms of the content of those standards, however it would be inaccurate to describe the relevant test in any of these areas as being ‘reckless disregard’.
Bibliography
Blake v. Galloway [2004] EWCA Civ 81
Caldwell v Maguire and Fitzgerald [2002] PIQR P6 at [12])
P Charlish, ‘A Reckless Approach to Negligence’ [2004] JPI Law 291
Clerk & Lindsell on Torts 19th Ed
Condon v Basi [1985] 1 W.L.R. 866
Donoghue v Stevenson [1932] AC 562
Elliott v Saunders (Unreported)
F. v West Berkshire Health Authority [1990] 2 AC 1
Freeman v Home Office (No.2) [1984] Q.B. 524
Gardiner et al, Sports Law (2005, Cavendish) 3rd ed.
Hambly v Shepley (1967) 63 D.L.R. (2d) 94, 95 (Canada)
M James, ‘Referees, scrums and spinal injuries’ 153 NLJ 166
T Kevan, ‘Sports Personal Injury’ 2005 International Sports Law Review 1
Letang v Ottawa Electric Rly Co [1926] A.C. 725
Lister v. Hesley Hall Ltd [2001] UKHL 22
D McArdle, ’The Enduring Legacy of “Reckless Disregard”’ CLWR 34 4 (316)
Pitcher v Huddersfield Town Football Club 2001 WL 753397
Promotion of Volunteering Bill
Secretary, Department of Health and Community Services v JWB (1992) 106 A.L.R. 385 (HC of Aus)
Smoldon v Whitworth [1997] PIQR P133
Unfair Contract Terms Act 1977
Vowles v Evans [2003] EWCA Civ 318
K Wheatley, ‘Off the Pitch and into Court’ 145 New Law Journal 790
White v Blackmore [1972] 2 Q.B. 651.
Wooldridge v Sumner [1963] 2 Q.B. 43, 69
Sports participants will satisfy the three-fold test established in Caparo Industries v Dickman [1990] 2 AC 605
Wooldridge v Sumner [1959] W. No. 215 CA (Diplock LJ at p.68)
Condon v Basi [1985] 1 W.L.R. 866; [1985] 2 All E.R. 453 (CA (Civ Div)), 869 (Donaldson MR) quoting with approval from the Judge at First Instance. It has been argued that Condon v Basi endorsed the reckless disregard standard at first instance: P Charlish, ‘A Reckless Approach to Negligence’ [2004] JPI Law 291. The argument is that because the judge in the County Court noted that the defendant showed reckless disregard of the plaintiff’s safety as well as concluding that the standard was obvious and that there was no need to ‘define exhaustively’ the duty of care, he must have meant that the standard required ‘reckless disregard’. Such a conclusion places undue weight on one sentence however, and ignores other, more explicit statements in that judgment.
[1932] AC 562 The first principle of whether there has been a breach is reasonable foresight – enshrined as part of Lord Atkin’s now legendary neighbour principle you are under a duty to take all reasonable care taking account of the circumstances in which you are placed.
In support, see T Kevan, ‘Sports Personal Injury’ 2005 International Sports Law Review 1 and articles cited at n10.
Smoldon v Whitworth [1997] PIQR P133, 139. The defendant argued that the Wooldridge v Sumner ‘reckless disregard’ standard was appropriate, whereas the plaintiff explicitly argued for the general duty of care formulation used by Donaldson MR in Condon v Basi; the Court of Appeal in the current case preferred the plaintiff’s argument.
McComiskey v McDermott [1974] IR 75 (Canada).
K Wheatley, ‘Off the Pitch and into Court’ 145 New Law Journal 790
Condon v Basi [1985] 1 W.L.R 866; [1985] 2 All E.R. 453 (CA (Civ Div)), p 868 (Lord Donaldson) (obiter)
Lord Donaldson MR approved the approach of Kitto J in Rootes v Shelton [1968] ALR 33
Caldwell v Maguire and Fitzgerald [2002] PIQR P6
For a trenchant argument against the view that the ‘modified duty of care’ (reckless disregard) has ever been a part of English (or Canadian) law, see D McArdle, ’The Enduring Legacy of “Reckless Disregard”’ CLWR 34 4 (316)
See eg ‘The circumstances are of crucial importance. Full account must be taken of the factual context’ ibid 139.
Caldwell v Maguire and Fitzgerald [11].
Ibid [12] quoting from the Judge at First Instance.
The duty of care on a referee is higher than on a participant because a role of a referee is to be responsible for safety, whereas a participant does not have that responsibility: ibid
The referee in Smoldon v Whitworth failed to implement the C—T—P—E standard; that this was dangerous practice was indicated it being a breach of the rules guiding the referee, and by 25 scrums collapsing in a game where 6 collapses would be worrying. The referee in Vowles v Evans [2003] EWCA Civ 318 should not have left the choice of whether it was appropriate to substitute a player to the hooker position. In defence of Vowles v Evans and in support of the claim that the duty of care was appropriate and will not be damaging the availability of volunteer refereeing, see M James, ‘Referees, scrums and spinal injuries’ 153 NLJ 166
Of course the dangerous play may constitute a tort in itself, and this would be decided as a category (i) case.
In Vowles v Evans the governing body for Welsh Rugby conceded their vicarious liability for their referee.
A claim was brought against the club in Pitcher v Huddersfield Town Football Club 2001 WL 753397 however the ‘foul’ was not found to be the basis of a tort and therefore the question of vicarious liability was not addressed.
Lister v. Hesley Hall Ltd [2001] UKHL 22 (Lord Steyn (Lord Hutton concurring))
Clearly a contract of service exists. See: Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance .
F. v West Berkshire Health Authority [1990] 2 AC 1, 73 (Lord Goff). On the related question of criminal liability for assault, and competitive sports, see R v Barnes [2005] EWCA Crim 3246 and B Livings, 'Legitimate Sport' or Criminal Assault? What Are the Roles of the Rules and the Rule-makers in Determining Criminal Liability for Violence on the Sports Field? JoCL 70 (495).
On the alternative view, lack of consent contributes to scope of the tort of trespass: see Freeman v Home Office (No.2) [1984] Q.B. 524, 539 (McCowan J). The weight of authority lies with consent operating as a defence: see F. v West Berkshire Health Authority ibid; Hambly v Shepley (1967) 63 D.L.R. (2d) 94, 95 (Canada); Secretary, Department of Health and Community Services v JWB (1992) 106 A.L.R. 385, 453 (HC of Aus) (McHugh J). The distinction does not matter for the purposes of the scope of ‘consent’ as a limitation.
Blake v. Galloway [2004] EWCA Civ 81 at [21] (Dyson LJ)
Smoldon v Whitworth at 147
On the basis of volenti see generally Letang v Ottawa Electric Rly Co [1926] A.C. 725.
See further text at n31 (Blake v Galloway)
Letang v Ottawa Electric Rly. Co [1926] A.C. 725, 731.
Wooldridge v Sumner [1963] 2 Q.B. 43, 69 (Diplock LJ)
On the facts, the circumstances in which a court will say that a participant consented to negligence in respect of measures taken for the safety of the injured party will be rare: see eg White v Blackmore [1972] 2 Q.B. 651.
Blake v. Galloway at [9] (Dyson LJ).
Clerk & Lindsell on Torts 19th Ed at 3-77
Blake v Galloway at [25]-[27]
Unfair Contract Terms Act 1977 s2(1): A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
In the Court of Appeal see Vowles v Evans; Smoldon v Whitworth & Nolan.
Promotion of Volunteering Bill s.6(3) (not yet law).
In support of this argument, and highlighting the evidential burdens facing an injured participant who seeks damages from a referee, see M James, n16 and related text. For an unsuccessful claim against a referee, see Allport v Wilbraham [2004] EWCA Civ 1668.