Wooldridge v Sumner
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DANCKWERTS,LORD JUSTICE DIPLOCK |
| Judgment Date | 04 June 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0604-5 |
| Court | Court of Appeal |
| Date | 04 June 1962 |
[1962] EWCA Civ J0604-5
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Barry, Middlesex
Lord Justice Sellers
Lord Justice Danckwerts and
Lord Justice Diplock
Mr. R. MARVEN EVERETT, Q. C. and Mr. MICHAEL TURNER (instructed by Messrs. E. P. Rugg & Co.) appeared on behalf of the Appellant (First Defendant).
Mr. A. E. JAMES. Q. C. and Mr. J. E. ARTRO-MORRIS (instructed by Messrs Pollard, Stallabrass & Martin) appeared on behalf of the Respondent-Plaintiff.
Mr. JAMES COMYN. Q. C. and Mr. CHRISTOPHER FRENCH (instructed by Messrs. Kimbers) appeared on behalf of the Respondents the Second Defendants.
The accident which gave rise to the claim in this case occurred on the 24th July, 1959, in the course of the National Horse Show of that year held at the White City Stadium, London, and a distinctive feature of the case is that the judgment has held to blame a competitor of great experience and skill who was riding a heavy hunter of the highest quality and who was at the time exercising every endeavour to win the event, as in fact he did, and that the second defendants, who as the promoters of the show were required to take reasonable care to provide a suitable arena for the event, have been exonerated from all blame by the judgment of Mr. Justice Barry and no appeal has been raised against them. Where competitors or players break off from the event or game or divert clearly from the rules there May well be room for liability on them as some of the cases show but the question arises whether liability should be placed on a competitor or player who is merely seeking to excel and to win, it being the very purpose on which he is engaged and the very endeavour which people have assembled to witness and applaud.
Another feature of the case is that it provides a striking illustration and reminder of how uncertain can be the raw material of a court's inquiry, the evidence. The event at the time of the accident was being closely watched by the judges of the competition, expert and experienced commentators and many interested spectators, informed in the ways of horses and in horsemanship, and yet from this most unusually qualified body of observers it has been difficult to get a wholly satisfactory account of what occurred, especially in the detail of the last and most vital stages. The competitor, Mr. Holladay, who was riding Mr. Sumner's horse Work of Art, was beet placed to say what he was seeking to do and what in fact the horse did and why, but Mr. Holladay was thrown heavily in the accident and was for a short time unconscious (although he returned to the arena to ride again and triumph on the same horse later in theevening) and on this ground it would seem that the learned judge did not accept his evidence although it was not without some support from other witnesses.
Mr. Holladay's evidence with the support it receives from at least two separate witnesses seems to me so probable, particularly in its explanation of the conduct his horse, that, if I were entirely free and unfettered to decide, it la the version which would, I think, have commended itself to me. But many witnesses were called and the learned judge preferred those who gave a different version, not wholly consistent between themselves, inadequate I think in material detail but taken together numerically greater than those who supported the first defendant. In all the circumstances but with some hesitancy I feel that I should follow broadly the facts relied on by the learned judge. I say "broadly" because it seems to me necessary to introduce more specifically into the facts on which liability has to be assessed the approximate distance the horse had travelled "in the straight" before the accident occurred.
There is one other feature which is unfortunate. The precise state of the arena could not be ascertained with that degree of accuracy as to detail which, as it chanced on the evidence relied on by the learned judge, became particularly important.
The White City arena for this show was a rectangular area of grass just over 100 yards long and about 70 yards wide. At one end, the left side of the plan, was the collecting ring where the competitors entered. At the other end on the right, was a bandstand. The whole was surrounded by an oval running track and outside that was a greyhound racing track beyond which were the stands for the spectators. The perimeter of the arena was defined, at least in part, on the bottom or grand-stand side by tuba with plants or shrubs in them. These seam to have been placed on the grass two or three fest from the edge of the running track, which had a kerb. It was not possible to ascertain where the first tub was placed from the bandstand and or precisely how many of them there were or by what intervals they ware separated. It would appear that there were several tuba in line before a bench of seats was reached lying in line with and between two tubs.
There were undoubtedly a number of jumps still standing in the arena but it is uncertain precisely where one was which mattered or which, on one view, might matter. Mr. Holladay on Work on Art was competing in the heavy hunter class at 4 p. m. and the judges required the horses to walk, trot, canter and gallop. The horses paraded and displayed themselves in a clockwise direction and the size of the arena was somewhat limited for the galloping teat. The presence of No. 10 jump (shown on the plan and in photographs but with no certainty as to its precise position) meant that the horses having rounded the bandstand end and having turned right on to the straight in front Of the grand-stand had to pass through whatever gap there was between the jump and the perimeter as defined by the tuba. This was no doubt adequate if all went well but if it were narrowed by the presence of anyone near the jump and if a horse were to veer away from it because of someone there, as certainly one witness thought, then its course would be further over to the left or to the line of tubs.
It is also an important feature of this case, and it is that which gives zest and interest to such events, that three first-class horses were competing and there was little to choose between them. His Grand Excellency had won at York, defeating Mr. Holladay on Work of Art only a short time before. The ether close competitor was Man of War. The most outstanding quality of Work of Art was his gallop and with proper seal to win Mr. Holladay was anxious to display his gallop to the full when he came down the grand-stand straight and for this purpose he deliberately kept close in to the corner at the bandstand end. The steward of the course was Brigadier Dunn, who was very experienced in these matters. He was standing with the judgesnear to the centre of the arena.
The plaintiff, who was no doubt a skilled photographer and in that capacity was at the White City Stadium with his camera, was unfamiliar with and apparently wholly uninterested in horses. Just prior to the galloping of the heavy hunters he was told by Brigadier Dunn to take his camera and himself over the running track as the Brigadier could not gallop the horses whilst he was there on the track. Brigadier Dunn's view seems to have expressed an appropriate standard for the positioning of spectators or at least the plaintiff for this particular event. The plaintiff, possibly through some misunderstanding, only went back as far as a bench seat between two tubs. He placed his camera on its tripod behind a tub or between that tub and the end of a bench furthest from the bandstand end of the arena. He stood by the end of the seat. Miss Smallwood, a director of the company employing the plaintiff, eat on the end by him and on the other end of the same bench sat a Corporal-Major who was in charge of the arena squad. There may have been others on the bench. The evidence is oddly unsatisfactory about this, especially as the horse came plunging down towards this position and what was in front of him which might have affected his movements was important to consider. Undoubtedly something affected the horse as it came along at a gallop, and the presence of anything ahead, particularly if there were any movement, may well have played its part, as more than one witness thought.
The competing horses - and there were several of them - were apparently galloping at the same time, spaced at intervals, down the back straight, round the bandstand end, and round to the right for the grand-stand straight. It may be that Mr. Holladay's horse overtook one of the others before he turned right for the straight run. It would seem to have been going faster than the others. That it should go fast was the rider's intention. It was his chance to excel. As he went round the bandstand end Mr. Dorian Williams, experienced in horsemanshipand a commentator an these events, heard Mr. Holladay say "Who ? steady" to his horse but Mr. Williams expressed the view that it was going too fast - that is, I think, going too fast to take the corner conveniently. Bat the horse did not run out of the grass arena on to the track at the corner. It clearly straightened up. If it had run oat it would no doubt have counted against the horse, certainly if it had been out of control for there was a rule to that effect, but there would have been no accident to the plaintiff or anyone else.
In my opinion "too fast" in these circumstances would only be an error of judgment of a highly competent rider all out to succeed. It is no doubt a misfortune for a skilled batsman to be bowled or caught in a supreme effort to hit a six. It is also a misfortune if, on the other hand, he succeeds in hitting a six and the ball hits someone over the boundary. The three-quarter who dives at speed over the line for a try at Twickenham,...
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