Breach of duty in sports – an insurmountable hurdle?

Tyclicki v Gibbons [21.12.21]

The High Court has recently published its decision in Tyclicki v Gibbons [21.12.21], an action raised for damages following a collision between two jockey’s mounts which left the claimant paraplegic.

The judgment has reinforced that participants in competitive sport owe one another a duty of care and considered the relevant standard to which that duty is discharged. Not only will the court’s decision have safety ramifications for British horse racing, but it will also extend more broadly to all competitive sports in the UK.

Background

The claimant, Freddie Tylicki, and the defendant, Graham Gibbons, were both successful and experienced professional flat race jockeys. They both participated in a race at Kempton Park, an all-weather course, on 31 October 2016.

Mr Tylicki claimed that in the course of the race Mr Gibbons had drifted left on his mount before slowing down as they approached a bend. Mr Tylicki had attempted to position his mount in the gap between Mr Gibbon’s horse and the inner rail of the course, as he was permitted to do so. He claimed that Mr Gibbons then deliberately narrowed the gap between his mount and the inner rail, thus leaving insufficient space for Mr Tylicki to safely proceed. Mr Tylicki’s mount made contact with the rail before making contact with Mr Gibbons’ mount and Mr Tylicki was said to have shouted at Mr Gibbons to warn him of his presence. It was alleged that Mr Gibbons failed to increase the gap despite this collision and a further collision occurred between the mounts, resulting in Mr Tylicki and his mount falling and sustaining injury.

Relevant authority

Both parties agreed that the relevant authority was that of Peter Caldwell v Adrian Maguire & Mick Fitzgerald [2001] which also involved a horse-riding accident where a collision occurred between the rider’s mounts and the inside rail.

The claimant was unsuccessful in proving negligence on the part of the defendant as he failed to demonstrate a breach of duty. The reasoning for this decision was that the accident was caused by a momentary lapse of judgement by one of the defendants but this in itself did not result in a breach of duty.

Holland J set out five principles:

  1. Each contestant in a sporting contest 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 attendant upon the contest and include its object, the demands inevitably made upon its contestants, its inherent dangers, its rules, conventions and customs, and the standards, skill and judgement reasonably to be expected of a contestant.
  4. The proof of a breach of duty will not flow from proof of no more than an error of judgement or from mere proof of a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race.
  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.

High Court’s decision

Although the Court acknowledged the leading authority of Caldwell, it nonetheless drew two distinctions: (i) Caldwell concerned a national hunt race over jumps; and (ii) ultimately, a case will turn on its own particular facts.

HHJ Walden-Smith stated that:

…the nature of horse racing means that jockeys are experienced in making split-second almost instantaneous decisions. They need to be able to do so, both to ensure that they fulfil their obligation to win, or be best placed as they possibly can be, and to fulfil their duty of care to others and to protect themselves.

Counsel for the defendant argued that as Mr Gibbons had not been found in breach of the rules of racing, this created an obstacle in Mr Tylicki succeeding. This was rejected by HHJ Walden-Smith as only one factor of consideration in determining the decision on the basis of all the facts, as per the principles laid out in Caldwell.

Mr Gibbons stated at the initial stewards enquiry and in evidence at trial that he was unaware of the presence of Mr Tylicki’s mount until he heard a shout from Mr Tylicki immediately preceding the second collision which resulted in the fall. HHJ Walden-Smith held that Mr Gibbons knew of the presence of Mr Tylicki, if not before, at the very least at the time of the initial coming together, some four seconds prior to the second collision. Despite this, Mr Gibbons continued to get closer to the inner rail.

The court therefore found that this was not a mere lapse in concentration. Rather, this was a course of action that carried over a number of seconds and while that might, in some circumstances, be considered a short period of time, in the heat of a horse race where jockeys are required to make split second decisions and to be able to constantly make assessments and adjustments to their own riding, this was a sufficient period of time for a skilled jockey to make a decision. The case therefore satisfied the principles set out in Caldwell.

Comment

The judgment highlights that, dependent on the individual circumstances, it is possible to succeed in a claim for breach of duty owed by a competitive sportsperson – even when they are cleared from any wrongdoing by their own sports procedures.

Although concerns were raised around an “opening of the floodgates”, making it difficult for any sportsperson to be confident that they would be able to compete as hard as they can for fear that they could be sued if someone suffered an injury, the court stressed that cases will ultimately turn on their own particular facts and, as such, this case “does not set a precedent either within horse-racing or in sport generally”.

Whilst there can appear to be an insurmountable hurdle when it comes to proving a breach of duty owed by one sportsperson to another, the court has demonstrated a willingness to find a breach when it is appropriate to do so in all the circumstances.

It is likely that safety changes will be implemented within British horse racing, be this in the manner and scrutiny of steward enquiries. However, an Australian judge in a case cited in the original decision in Caldwell eloquently summarised the inherent dangers of horse-racing: “thoroughbred horse racing is a competitive business, which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are limited”.