The nature of employment and tort

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 care1 between those playing competitive sports – the question therefore arises what standard this duty of care requires. Wooldridge v Sumner2 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'3 although Lord Donaldson MR explicitly based the duty of care in the general duty of care4 first formulated in Donoghue v Stevenson.5 Condon v Basi is clear: the general negligence duty of care will apply.6 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."7 Those circumstances include that competitors are expected to go "all out" to win in a competitive contest.8

The application of the Condon v Basi 'appropriate in all the circumstances' test has been criticised9, not least because of the judge's obiter dicta statement that gave rise to the potential possibility of a variable standard of care10. However, in Elliott v Saunders11, 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 matches12. 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 Fitzgerald13. 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'14 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 others16, 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 everything17 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"18 – 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."

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 safety20 (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 appropriate21. 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'22.

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 high23, 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 play24. 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;26 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 liable27. 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 tort28 and whether the tort arose within the scope of the tortfeasor's authority or role.29 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.