Case Facts
The claimant, James Condon, sustained a broken right leg during a Sunday local league football match in Leamington between Whittle Wanderers and Khalso Football Club. The claimant played for Whittle Wanderers; the defendant, Gurdaver Basi, played for Khalso Football Club. After approximately 62 minutes of play, the defendant executed a sliding tackle from a distance of some three to four yards. A class I referee described the tackle as coming in late, with the defendant's boot studs showing approximately a foot to eighteen inches from the ground, resulting in the claimant sustaining the injury. The defendant was sent off for serious foul play.
The matter was heard by His Honour Judge Wooton in Warwick County Court on 30 March 1984. The county court judge accepted the referee's account but found, on the balance of the evidence, that the defendant's foot was probably nine inches off the ground at the point of contact. The judge made the following finding of fact: the tackle was made "in a reckless and dangerous manner not with malicious intent towards the plaintiff but in an excitable manner without thought of the consequences." Judgement was entered for the claimant and damages of £4,900 were awarded. The defendant appealed to the Court of Appeal against that decision.
Held
The Court of Appeal dismissed the defendant's appeal. The court confirmed that participants in a competitive sport owe one another a duty of care in negligence, and that the appropriate framework is one drawn from the Australian authority of Rootes v Shelton [1968], which was approved and applied. The foundational authority for the general duty of care was identified as Donoghue v Stevenson [1932], with the court acknowledging that the circumstances in which that duty operates in competitive sport are materially different from those of ordinary daily life.
The county court judge's conclusion — that the defendant "was clearly guilty of serious and dangerous foul play which showed a reckless disregard of the plaintiff's safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game" — was upheld in its entirety. Stephen Brown LJ and Glidewell J each agreed with the leading judgement without adding separate reasoning.
Ratio Decidendi
The ratio of the case, as articulated by Sir John Donaldson MR, is that a participant in a competitive sport will be liable in negligence where it is shown either: (1) that he failed to exercise the degree of care appropriate in all the circumstances; or (2) that he acted in a manner to which the injured participant cannot reasonably be expected to have consented. Either limb of this two-part test suffices to establish liability.
The court drew extensively on Rootes v Shelton [1968] in formulating this test. Barwick CJ in that case held that by engaging in sport, participants may be taken to have accepted inherent risks, but that this acceptance does not eliminate all duty of care; whether a duty arises and the extent of that duty depends on the particular circumstances. Importantly, the rules of a sport are a relevant circumstance but are neither definitive of the existence nor the extent of the duty of care, and a breach of the rules does not automatically constitute a breach of the duty. Kitto J took a somewhat different approach, holding that the outcome must depend upon the reasonableness of the conduct causing the injury, having regard to the special circumstances of sport; non-compliance with the rules is necessarily one consideration relevant to reasonableness, but only one, and may carry much, little, or no weight depending on the facts.
Sir John Donaldson MR preferred the approach of Kitto J — a general standard of care adjusted to the circumstances — over the implied consent analysis of Barwick CJ, but acknowledged that both approaches produce the same practical result in the resolution of any given case.
Critically, the court expressly rejected the defendant's submission that the standard of care was subjective to the individual defendant. The standard is objective. However, this objective standard is not fixed: it varies according to the context and level of competition. A higher degree of care is required of a player in a First Division football match than of a player participating in a local league fixture such as the one in issue. The standard adjusts to what would reasonably be expected of a participant in that particular level and type of sport.
Obiter Dicta
Not applicable.