Watson v British Boxing Board of Control Ltd and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE LAWS |
| Judgment Date | 19 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1219-9 |
| Docket Number | Case No: QBENF1999/1137/A2 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2000 |
[2000] EWCA Civ J1219-9
The Master Of The Rolls
Lord Justice May
Lord Justice Laws
Case No: QBENF1999/1137/A2
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE HON MR JUSTICE IAN KENNEDY)
Mr R Walker, Qc And Mr Stephen Worthington (instructed By Lawrence Graham) Appeared On Behalf Of The Appellant/Defendant
Mr C Mackay, Qc And Mr Neil Block (instructed By Myers Fletcher & Gordon) Appeared On Behalf Of The Respondent/claimant
LORD PHILLIPS, MR
On 21st September 1991 Michael Watson fought Chris Eubank for the World Boxing Organisation Super-Middleweight title at Tottenham Hotspur Football Club in London. The referee stopped the fight in the final round when Watson appeared to be unable to defend himself. He had in fact sustained a brain haemorrhage and, after returning to his corner, he lapsed into unconsciousness on his stool. There was chaos in and outside the ring and seven minutes elapsed before he was examined by one of the doctors who were in attendance. He was taken on a stretcher to an ambulance which was standing by which took him to North Middlesex Hospital. Nearly half an hour elapsed between the end of the fight and the time that he got there. At the North Middlesex Hospital he was intubated, that is an endotrachael tube was inserted, and he was given oxygen. He was also given an injection of Manitol, a diuretic that can have the effect of reducing swelling of the brain. The North Middlesex Hospital had no neurosurgical department, so Mr Watson was transferred by ambulance, still unconscious, to St. Bartholomew's Hospital. There an operation was carried out to evacuate a sub-dural haematoma. By this time, however, he had sustained serious brain damage. This has left him paralysed down the left side and with other physical and mental disability.
The fight had taken place in accordance with the rules of the British Boxing Board of Control Ltd., ("the Board"). These rules included provisions for medical inspection of boxers and for the attendance of two doctors at a fight. In fact the Board had required a third doctor to be present and that an ambulance should be in attendance.
Mr Watson brought an action against the Board. He claimed that the Board had been under a duty of care to see that all reasonable steps were taken to ensure that he received immediate and effective medical attention and treatment should he sustain injury in the fight. He contended that they were in breach of this duty with the consequence that he did not receive the immediate medical attention at the ringside that his condition required. In a nutshell, his case was that the resuscitation treatment that he received at the North Middlesex Hospital should have been available at the ringside, but was not. He further alleged that had he received that treatment, he would not have sustained permanent brain damage.
On 24 September 1999 Ian Kennedy J., gave judgment in favour of Mr Watson against the Board. Against that judgment the Board now appeals. The judgment is attacked root and branch. The Board contends: -
i) that it owed no duty of care to Mr Watson;
ii) that if it owed the duty alleged, it committed no breach; and
iii) that the breach of duty alleged did not cause Mr Watson's injuries.
I propose to develop the relevant facts more fully in the context of each of these issues.
Duty of Care
When considering whether the Board owed Watson a duty of care, Ian Kennedy J. examined at some length the role played by the Board in imposing, by rules and regulations, the safety standards to be observed by those involved in professional boxing in this country. His conclusions as to duty are to be found in the following passages from his judgment.
"The Board does not create the danger. What it does do does at least reduce the dangers inherent in professional boxing. But at the same time it countenances and gives its blessing to contests where the safety arrangements are those of its making. The promoters and the boxers do not themselves address considerations of safety. Clearly, they look to the Board's stipulations as providing the appropriate standard.
It is not necessary for a supposed tortfeasor to have created the danger himself. In my view there is a quite sufficient nexus between the Board and the professional boxer who fights in a contest to which its rules obtain to be capable of giving rise to a duty in the Board to take reasonable steps to try to minimise or control whether by rules or other directions the risks inherent in the sport. To my mind it is difficult in such a situation to profess a concern for safety and to deny a duty such as I have described.
Where there is a potential for physical injury, I do not believe that I have to go beyond the traditional concept of neighbourhood to find a duty where there is, as here, a clearly foreseeable danger. If authority is needed for this approach, it is to be found in the Judgment of the Court of Appeal in Perrett v Collins [1998] 2 LL.L.Rep. 255."
(Transcript p.15)
"There is always a risk, and the pool from which professional boxers tend to be recruited is unlikely to be one with an innate or well-informed concern about safety, and one may ask why should the individual boxer not rely on the Board's arrangements? The Board professes – I do not for one moment question its sincerity – its lively interest in his safety. Its experience, contacts and resources exceed his own. It has the ability to require of promoters what it sees as good practice.
I do not believe there is any difference in principle between giving advice about safety and laying down rules to provide for safety. Thus we find here a body with special knowledge which gives advice to a defined class of persons, that it knows will rely upon that advice in a defined situation… If, which I doubt, this conclusion represents any step beyond what is already settled law, I am fully persuaded it is a proper one to take."
(Transcript pp.18–19)
I am in no doubt that the Judge's decision broke new ground in the law of negligence. In Caparo Plc v Dickman [1990] 2 AC 605,and in many subsequent cases, the House of Lords and this Court have approved the approach to the development of the law of negligence recommended by Brennan J. in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 A.L.R. 1, 43–44, where he said:
"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed."
The Judge referred (Transcript p.17) to the question of whether to attach a duty of care to the facts of the present case would be an acceptable incremental extension of established liabilities, or too long a step. He did not, however, identify any obvious stepping stones to his decision. I do not find this surprising. There are features of this case which are extraordinary, if not unique. I would echo the comment of Lord Steyn in Marc Rich & Co. v Bishop Rock Ltd [1996] AC 211 at p.236:
"None of the cases cited provided any realistic analogy to be used as a springboard for a decision one way or the other in this case. The present case can only be decided on the basis of an intense and particular focus on all its distinctive features, and then applying established legal principles to it."
I turn to the distinctive features of this case.
The Sport of Boxing
Many sports involve a risk of physical injury to the participants. Boxing is the only sport where this is the object of the exercise. The Law Commission in its 1994 Consultation Paper No.134 "Criminal Law: Consent and Offences Against the Person" recognised that boxing was an anomaly in English law. (pp.27–8). Lord Mustill reached the same conclusion in R v Brown [1994] 1 AC 212 at p.265, where he gave the following description of professional boxing:
"For money, not recreation or personal improvement, each boxer tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious, or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin to a degree which would ordinarily be well within the scope of Section 20. The boxers display skill, strength and courage, but nobody pretends that they do good to themselves or others. The onlookers derive entertainment, but none of the physical and moral benefits which have been seen as the fruits of engagement in many sports."
Attempts have been made, within Parliament and outside, to bring about the banning of the sport of boxing. They have not succeeded. Boxing could not, however, have survived as a legal sport without strict regulation, one aim of which is to limit the injuries inflicted in the ring. That regulation has been provided by the Board.
The British Board of Boxing Control
The history of the Board can be traced back to the middle of the nineteenth century, but the Board itself was constituted as an unincorporated association in 1929. In 1989 it was incorporated as a company limited by guarantee. Since 1929 the Board has been and continues to be the sole controlling body regulating professional boxing in the United Kingdom....
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