Blake v Galloway
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Clarke,The Vice-Chancellor |
| Judgment Date | 24 June 2004 |
| Neutral Citation | [2004] EWCA Civ 814 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2004/0464 |
| Date | 24 June 2004 |
[2004] EWCA Civ 814
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
District Judge Walker
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Vice-Chancellor
Lord Justice Clarke and
Lord Justice Dyson
Case No: B3/2004/0464
Mr Richard Stead (instructed by Messrs Lyons Davidson of Plymouth) for the Appellant
Mr Nathan Tavares (instructed by Messrs Wolferstans of Plymouth) for the Respondent
On 29 May 1997, the claimant was practising with a jazz quintet in which he played with four of his friends. One of them was the defendant. They were all approximately 15 years of age at the time. They were at Battisborough House, near Mothercombe in South Devon. At lunchtime, they decided to take a break. They went into the grounds and started to engage in some horseplay. This involved throwing twigs and pieces of bark chipping at each other. At first, the claimant did not join in. But after a while, he picked up a piece of bark chipping, approximately 4 cm in diameter, and threw it towards the lower part of the defendant's body. The defendant picked up the same piece of bark and threw it back at the claimant striking him in the right eye, causing a significant injury. The claimant started proceedings claiming that the injury was caused by the defendant's battery and/or negligence. The defendant relied on the claimant's consent as a defence to the claim in battery, and denied negligence. At the trial, the main focus of his defence to the claim in negligence was his reliance on the maxim volenti non fitinjuria: his case was that the claimant had consented to the risk of being struck by the piece of bark even if it was thrown without reasonable care. In the alternative, the defendant alleged that the injury was caused or contributed to by the claimant's own negligence. Damages were agreed at £23,500.
It will be necessary to examine the judgment in a little more detail later, but it is sufficient at this stage to say that DJ Walker, sitting at Plymouth County Court, held that the injury was caused by the negligence and battery of the defendant, rejected the defence of volenti non fit injuria, but reduced the damages by 50% to reflect the claimant's contributory negligence. The defendant now appeals with the permission of Latham LJ.
There was very little dispute as to the facts at the trial. It was common ground that these youths were engaged in high-spirited and good natured horseplay. As the judge said (para 10) : "there was general messing around by all the participants. Nobody was throwing items towards anybody's head. There was no feeling of animosity between anybody taking part, and indeed no-one was picking on any of the others". They were just randomly throwing twigs, pieces of bark and mulch in the general direction of each other.
As regards the throwing that resulted in the injury to the claimant's eye, the only dispute of fact was as to whether the claimant and the defendant were between about 10 and 15 metres apart (as the defendant said in his evidence) or 4–5 metres apart (as the claimant said) . The judge preferred the evidence of the claimant on this point. They were on a slight slope vis a vis each other, the defendant being at a higher level than the claimant. The claimant threw the piece of bark in the direction of the defendant's lower body, striking him on the bottom. He was not aiming at the defendant's head. The defendant picked the piece up, and threw it back in the general direction of the claimant, not aiming at his head. He did not shout any warning at the claimant, who was not looking in the direction of the defendant when the bark was thrown at him. Had he been doing so, it is probable that he would have seen it coming and been able to take avoiding action.
Negligence
As I have said, the principal issue at trial was whether the claim in negligence was defeated by the claimant's consent (encapsulated in the maxim volenti non fit injuria) as explained in a number of authorities, such as Wooldridge v Sumner [1963] 2 QB 43, 69:
"The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk… and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran" (per Diplock LJ) .
The judge expressed his conclusion on the issue of negligence and consent at para 27 of his judgment in these terms:
"In my view, taking into account all the circumstances in this case, I find that the claimant may well have consented to some risk in participating in this game which perhaps might have been – I am sure nobody when they started off expected anybody (sic) to be caused any injury, but there was some risk of that in some similar way to the analogy of throwing snowballs but I do not think that in this particular case the defendant took sufficient care to make sure that injury to the claimant's head would not take place. It may be that in the minds of participants other than the claimant nobody particularly cared where items went. I am satisfied, as I say, in the particular circumstances of this case, there was, although consent to participate in a game which might have caused injury, no consent to the injury to the claimant's face. I do not think he had the adequate opportunity of defending himself as he was not facing the defendant when the piece of bark was thrown."
In this court, Mr Stead (who did not appear at the trial) submits that the claim in negligence should have been dismissed on the simple ground that, in the particular circumstances of this case, there was no lack of reasonable care on the part of the defendant. Accordingly, the issue of volenti did not arise. Alternatively, he submits that, if there was a lack of reasonable care, then the judge was wrong to reject the defence of volenti. Although this represents a significant shift of emphasis from the way in which the defence to the claim in negligence was presented in the court below, there was no objection by Mr Tavares.
I start with the question of breach of duty. I do not believe it to be disputed that, generally speaking, participants in sport and games generally owe each other a duty of care. Difficult questions can, however, arise as to whether on the facts of any particular case there has been a breach of that duty. The standard of care which the common law requires depends on all the circumstances of the case. In Wooldridge, the plaintiff was a spectator at a horse show who was injured when the defendant rode his horse too fast and lost control. Although that was a case about a spectator, and not a participant, it is clear that the observations made by this court, and in particular by Diplock LJ, are of application to spectators and participants alike. At p 67, he said that what is reasonable care in a particular circumstance is a jury question, which (in the absence of direct guidance from authority) may be answered by inquiring whether the ordinary reasonable person would say that in all the circumstances the defendant's conduct was blameworthy. At p 68, he said:
"The practical result of this analysis of the application of the common law of negligence to participant and spectator would, I think, be expressed by the common man in some such terms as these: "A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act may involve an error of judgment or lapse of skill, unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety."
Condon v Basi [1985] 1 WLR 866 was a participant case. The plaintiff and the defendant were playing for opposing teams in a football match when the plaintiff suffered serious injuries as a result of a foul tackle by the defendant. The judge held that there was an obvious breach of the defendant's duty of care because he showed a reckless disregard of the plaintiff's safety and his conduct fell far below the standards which might reasonably be expected of anyone playing the game. The defendant's appeal to this court was dismissed. At p 867F, Sir John Donaldson MR cited from the decision of the High Court of Australia in Rootes v Shelton [1968] ALR 33, saying:
"Barwick CJ said, at p.34:
"By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connection, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist."
Kitto J said, at p.37:
"in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily...
To continue reading
Request your trial
-
Dani Laura Chelsea Czernuszka (Nee Watts) v Natasha Mercedes King
...the bar for that standard will be set high requiring recklessness or a very high degree of carelessness: see, for example, Blake v Galloway discussed at paragraphs 44 and 45 below. The main issues in this case are whether, for the Defendant to be found liable, it is necessary for the court ......
-
Strickland v White and Barbados Rally Club
...21 Any doubt, counsel submitted, as to the correct test to be applied, must be regarded as resolved by the court of Appeal in Blake v. Galloway [2004] 1 WLR 2844 where Wooldridge's case was expressly applied by Dyson L.J. who stated at 2850 to 2851: “I would, therefore, apply the guidance g......
-
Orchard v Lee
...in such horseplay would only be established where the conduct amounted “to recklessness or a very high degree of carelessness.” See Blake v Galloway [2004] EWCA Civ 814. It does not seem that McHale or Mullins were considered by the Court of Appeal in Blake. That may be because the case in ......
-
Stuart Andrew Mcphee V. W.j.m. Wilson, Q.p.m., Chief Constable Of Central Scotland Police
...to any exact degree and that the duty of reasonable care had to be related to that circumstance. Reference was made to Blake v. Galloway 2004 1 WLR 2844 and Woolridge v. Sumner 1963 2 QB 43. [14]We agree with counsel for the respondent that the foregoing cases do not assist other than that ......
-
Arbitration By Battle
...on the ground that she had voluntarily accepted the obvious risk inherent in the drop to the marble floor below. Blake v Galloway [2004] EWCA Civ 814 concerned an informal game in which a group of youths threw pieces of bark at each other. One of the participants suffered an eye injury, and......
-
On-field Negligence in Sport: The English High Court rules in Czernuszka v King
...defendant had broken the claimant’s leg. By contrast, the Defendant principally relied on the Court of Appeal case of Blake v Galloway [2004] 1 WLR 2844, inviting the Court to consider a higher and more stringent test – namely that the injuring tackle should only be actionable if it “amount......
-
Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions
...vSmith [2003]EWHC 2060 (QB); (112) Slattery vMoore Stephens (a firm) [2003] EWHC1869 (Ch), [2004] PNLR 14; (113) Blake vGalloway [2004] EWCA Civ 814,[2004] 1 WLR 2844; (114) Burridge vAirwork Ltd [2004] EWCA Civ 459; (115)Houghton vStannard [2003] EWHC 2666 (QB); (116) Edwards vJerman [2004]......
-
A Different Ball Game—Why the Nature of Consent in Contact Sports Undermines a Unitary Approach
...a109 [1974] AC 156,at 173.110 Lloyds Bank Ltd v Ry Exectuive [1952] 1 All ER 1248, at 1253, per Denning LJ.111 Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844.112 Ibid. per Dyson LJ.113 P. Weiler and G. Roberts, Sports and the Law: Text, Cases, Problems, 2nd edn (WestPublishing : St......
-
Vicarious Liability and Non‐Delegable Duty for Child Abuse in Foster Care: A Step Too Far?
...See further P. Handford, ‘Intentional Negligence: A Contradiction inTerms?’ (2011) 32 Sydney Law Review 29.60 (1860) 6 H & N 54, 59.61 [2004] 1 WLR 2844 at [17]. See also Williams vHumphrey (1975) The Times, 20 Februar y1975, where a defendant, who pushed the claimant into a swimming pool c......
-
Consent and the Rules of the Game: The Interplay of Civil and Criminal Liability for Sporting Injuries
...which these youths were engaged for the 16 [2001] EWCA Civ 1054, [2002] PIQR 6.17 Ibid. at [23].18 Ibid. at [37].19 Ibid. at [28].20 [2004] EWCA Civ 814, [2004] 1 WLR The Journal of Criminal Law guidance given by the authorities to which I have referred21 to be of valuein the resolution of ......