Caldwell v Maguire
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,Lord Justice Tuckey,LORD JUSTICE TUCKEY,LORD JUSTICE JUDGE |
| Judgment Date | 27 June 2001 |
| Neutral Citation | [2001] EWCA Civ 1054 |
| Docket Number | A1/2000/2576 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 2001 |
[2001] EWCA Civ 1054
The Lord Chief Justice Of England And Wales
(The Lord Woolf Of Barnes)
Lord Justice Judge and
Lord Justice Tuckey
A1/2000/2576
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(MR JUSTICE HOLLAND)
Royal Courts of Justice
The Strand
London
LORD BRENNAN QC (instructed by Messrs Hugh Potter & Co, Manchester M15 4GB) appeared on behalf of THE APPELLANT
MR TIM KERR QC (instructed by Messrs Reynolds Porter Chamberlain, London WC1V 7HA) appeared on behalf of THE RESPONDENTS
Wednesday 27 June 2001
I will ask Lord Justice Tuckey to give the first judgment.
On 30 September 1994, the appellant, Peter Caldwell, who was then a professional jockey, was seriously injured whilst riding in a two mile novice hurdle race at Hexham. Holland J dismissed his claim for personal injuries against the two respondents who are also professional jockeys and were riding in the same race.
It was common ground that participants in competitive sport owe one another a duty of care. The appellant's complaint is that the judge set the standard of care too low; that he effectively required proof of deliberate or reckless disregard for safety. If he had applied the correct standard, in any event, he would or should have found that the respondents were negligent.
The accident involved four horses: Fion Corn, ridden by the appellant; Master Hyde, ridden by the first respondent, Adrian Maguire; Mr Bean, ridden by the second respondent, Mick Fitzgerald; and Royal Citizen, ridden by Derek Byrne. Royal Citizen on the inside, Mr Bean on his right, and Master Hyde on the outside, jumped the second last hurdle of the race together. However, after the jump and as the three horses approached a left-hand bend about 100 yards up the course, Mr Bean and Master Hyde pulled three-quarters of a length ahead of Royal Citizen on their inside and took a line which left no room for Royal Citizen on the bend. What happened next is described by the judge as follows:
"It is clear that Mr Byrne left the second last determined to do as before, that is to ride Royal Citizen so as to make up ground lost by slow jumping -and thus retain a position on the inside of Mr Bean. Hence he urged his mount forward between the rail on his near side and Mr Bean, aiming to make up the three-quarter length deficit. He was conscious that this gap was closing with the effect of the Second Defendant's line being compounded by the alignment of the rail and he shouted a warning that was in the event, as I find, unheard. His persistence in the heat of the race was maintained; that of Royal Citizen was not. The horse shied from the closing gap and 'jinked' to the right away from the gap and rail, veering across the course behind Mr Bean. This manoeuvre unseated his jockey (who suffered bruising) and served to obstruct and bring down the close following Fion Corn so that the Claimant went to the ground sustaining far more serious injury."
Following the race there was a stewards inquiry at which the respondents were found guilty of careless riding "in that they had not left enough room for Byrne to come round the inside rail". They were each suspended for three days.
The relevant Jockey Club Rules are rule 152(ii) which says:
"The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given a full opportunity to win or of obtaining the best possible placing."
And rule 153(iii) which says:
"The rider of any horse who, in the opinion of the Stewards of the Meeting or the Stewards of the Jockey Club, has been guilty of reckless, irresponsible, careless or improper riding or has intentionally caused interference in any part of a race shall be guilty of an offence."
Guidance issued to the stewards defines "careless riding" as:
"A rider is guilty of careless riding if he fails to take reasonable steps to avoid causing interference or causes interference by misjudgment or inattention."
Based on statistical evidence, the judge concluded that careless riding was a relatively common offence (the statistics showed that in 1999 there were 129 cases) and (as he described it) "low in terms of heinousness" by comparison with the other offences referred to in rule 153(iii).
Two distinguished experts, John Francome and Carl Llewellyn, gave evidence at the trial. They agreed with the finding of the stewards because they thought that the respondents should not have taken the inside line unless and until they were one length clear of Royal Citizen. Both should have looked to their left to ensure that Royal Citizen was no longer in contention.
As to the law, the judge said that the "primary guidance" for him must come from the Court of Appeal. He noted that this court had never had to consider an entirely similar situation, but had considered analogous situations in five cases, which he reviewed. From these cases he extracted five propositions:
"[1] Each Contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants.
[2] That duty is to exercise in the course of the contest all care that is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury to such fellow contestants.
[3] The prevailing circumstances are all such properly attendant upon the contest and include its object, the demands inevitably made upon its contestants, its inherent dangers (if any), its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant. Thus in the particular case of a horse race the prevailing circumstances will include the contestant's obligation to ride a horse over a given course competing with the remaining contestants for the best possible placing, if not for a win. Such must further include the Rules of Racing and the standards, skills and judgment of a professional jockey, all as expected by fellow contestants.
[4] Given the nature of such prevailing circumstances the threshold for liability is in practice inevitably high; the proof of a breach of duty will not flow from proof of no more than an error of judgment or from mere proof of a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race. Such are no more than incidents inherent in the nature of the sport.
[5] 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. I emphasise the distinction between the expression of legal principle and the practicalities of the evidential burden."
The judge then expressed his conclusions as follows:
"Each Defendant was guilty of lapses of care in their riding of their respective mounts away from the second last hurdle so as to contribute to the premature curtailment of the inside line otherwise to be followed by Royal Citizen -and thus so as to contribute to the Claimant's accident.
However, in neither instance was the lack of care, when evaluated in the circumstances prevailing in this horse race, of sufficient magnitude to constitute a breach of the duty of care respectively owed to the Claimant, that is to surmount the threshold for liability. Left entirely to myself, that is unaided by experts, I would have found it difficult clearly to identify lack of care on the part of the First Defendant (should he have been concerned with the position beyond the horse on his immediate left?), and the more clear cut failure on the part of the Second Defendant to take account of the position of Royal Citizen is to me (still as a layman) difficult to distinguish in terms of blameworthiness from the failure of Mr Byrne correctly to assess the situation in front of him -a failure exposed in any event by the behaviour of his horse. As I would evaluate the situation, all three jockeys were guilty of lapses of errors that must be an inevitable concomitant of adrenalin fuelled high speed racing with victory still a prospect. Turn back to the experts: in my judgment they did nothing to disabuse me of such evaluation of the significance of the identified lack of care. With varying degrees of emphasis they left me in no doubt but that this incident reflected the cut and thrust of serious horse racing; in theory, avoidable but in daily practice something that is bound to occur from time to time, no matter how generally careful is the standard of riding. The statistics underline this view -and Mr Llewellyn is arguably right in suggesting that the video recording shows a similar potential incident earlier in the very same race and concerning other horses, with injury avoided because the jockey trying to retain the inside line preferred discretion to valour at that stage of the race. We are a long way from the sort of conduct that triggers a response from the Courts as well as from the Stewards."
Lord Brennan QC for the appellant accepts the first three of the judge's propositions of law, but says that the last two are unduly restrictive and not supported by the Court of Appeal authorities, which the judge considered.
The first of the most directly relevant of these is Condon v Basi [1985] 1 WLR 866, where a footballer sued an opponent who broke his leg with a foul tackle. Sir John Donaldson MR, with whom the other two members of the court agreed, accepted the statements of law made in the Australian...
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