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Articles | Tue 11th Jan, 2022
HHJ Karen Walden-Smith sitting as a Judge of the High Court, heard evidence and submissions over the course of 5 days from 29th November 2021 to 3rd December 2021. The claim was brought by Freddie Tylicki, a professional flat-race jockey, who had been left paraplegic after his horse was caused to trip and fall following contact with another horse (ridden by fellow professional jockey Graham Gibbons) in a race on the all-weather track at Kempton Park on the 31st October 2016. Tylicki succeeded in persuading the court that Gibbons’ riding was sufficiently negligent that it met the applicable test to establish a breach of duty. It was agreed that the relevant authority was that of Peter Caldwell v Adrian Maguire & Mick Fitzgerald  EWCA Civ 1054. The injured jockey did not recover damages in that case, and as far as the parties were aware, no jockey had successfully sued for injuries sustained on the racecourse in the 20 years since that decision.
Written by Angus Piper, Barrister at 1 Chancery Lane, London, who acted as Junior to Lord Faulks QC on behalf of the Claimant in this claim.
Tylicki v Gibbons  EWHC 3470 (QB)
What are the practical implications of this case?
The case reiterates that professional sportsmen (including jockeys) are able successfully to sue their fellow competitors for negligence. However, the trial judge confirmed that such cases are fact-sensitive and was careful to explain that she was not setting any general precedent in finding for the claimant on the particular facts of the claim. There are potential implications for both the regulatory bodies and the insurers of all professional sports and sportsmen. It is instructive that notwithstanding the Rules of Racing prohibit cutting off a horse which is “going up the inner” (ie. proceeding along the rail, as Tylicki was in the instant race), there had been no finding of dangerous riding by any jockey for some 12 years. Within days of the Tylicki decision, a jockey called Thomas Dowson was handed a ban of 13 days for interfering with a horse coming up the rail. It seems likely that the rules of racing (and likely those of other sports) will be enforced more rigorously going forward, and that must be beneficial for the safety of all competitors. The Judge confirmed that the finding of the Stewards on the day that the interference had been “accidental” (which was heavily relied upon by those acting for the Defendant) was not binding on the court and was not determinative.
What was the background?
Incidents on the racetrack tend to happen at the start (where horses are bunched having exited the stalls) or the finish (where horses are putting in maximum effort to win). One of the unusual features of the index race, which was highlighted by the Claimant’s experts (Jim McGrath and Ryan Moore) was that the incident happened in mid-race. In short, the Claimant contended (and the Judge agreed) that the Defendant had drifted left and slowed down around the bend in the middle of the race on the Kempton all-weather track, and that had brought the Claimant’s mount partially alongside him, next to the rail. The Claimant was permitted to be in that position, and the Defendant was not permitted to attempt to close the door on him, or otherwise to interfere with his progress “up the inner”. But the Claimant caused his horse to move back towards the rail, and thereby into the path of the Defendant’s horse. There was an initial contact following which the Defendant made no attempt to move aside and let the Claimant through, and then a second later there was a further contact which brought down the Claimant’s horse and other following horses with life-changing consequences for the Claimant, who has been left permanently in a wheelchair, albeit he has got on with his life as best he can, and he is now working as a commentator on racing for Sky Sports amongst other roles.
What did the court decide?
The duty in a sporting contest is to exercise that degree of care which is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury to fellow contestants. The threshold for liability is in practice inevitably high, and an error of judgment or a momentary lapse in skill (and thus care) will not suffice to establish liability. Each case is fact specific, and a distinction is to be drawn between conduct which is properly to be characterised as negligent and oversights or lapses of attention which will not sound in damages. The case is determined upon all the circumstances and does not set a precedent either within horse-racing or in sport generally: it is not the thin end of the wedge. The Judge found that there was a sufficient gap for the Claimant’s horse to be able to come up on the inside of the rail, and that the horse did so without any encouragement from Mr Tylicki. The assertions on behalf of the Defendant that there was no more than a horse width and possibly as little as half a horse width could not be correct. There was a sufficient gap for the Claimant’s horse to progress along the rail without encouragement and without any impediment. The Judge was also satisfied that the Defendant was aware of the presence of the Claimant’s horse on his inside, and that if he was not then he clearly should have been. The Judge found that the Defendant caused his mount to turn towards the inner rail and urged her forward, and in doing so he “closed the door” on the Claimant’s horse, exerting tension on his right rein beyond that which was necessary to bring his mount around the bend, and thereby causing the collision and the fall (and the horrific injuries to the Claimant). The Defendant’s riding over a period of some 4 seconds amounted to a reckless disregard for the Claimant’s safety and was not indicative of mere lapses or errors of judgment. Accordingly, liability was made out.
This case analysis was first published in Lexis Nexis, 5th January 2022.