Law Reform 1945

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"31 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 excuse32 and there will be no liability for trespass which can 'reasonably be expected to occur in the course of the game.'33 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 acts34 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 torts35, 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 trespass36.

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 risk37. 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"38 (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)39. 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.'40 D McArdle41 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.

Law Reform (Contributory Negligence) Act 1945

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.42 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.43 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.44 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 referees45. 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"46 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 organisation47, 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.48

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