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Articles | Mon 17th Jan, 2022
Regular readers will recall that on 21st December last year no fewer than three courts handed down judgments involving airlines; this week it’s the turn of horses (and horseplay) to come to the fore. We look forward to seeing what next week will bring. In the meantime, a reminder that the service of proceedings is an important matter for which there is no substitute for following the rules; in Ideal Shopping Direct Limited v Mastercard Inc  1 WLUK 53 the Court of Appeal confirmed that under the Electronic Working Pilot Scheme set out in CPR51PDO, a claim form had to be sealed before it could be validly served. A mistake whereby an unsealed claim form had been served was not a procedural defect which could be remedied under CPR3.10, because if the remedying of an error under Rule 3.10 would involve bypassing specific rules, it was not permissible. A timely reminder that there are some slip-ups which cannot be remedied.
Working with Horses
Just before Christmas, the High Court handed down an important judgment on liability between participants in potentially dangerous sports in Tylicki v Gibbons  EWHC 3470 (QB).
The Claimant and the Defendant were professional jockeys engaged in a high-level competitive horse race. It was common ground that this was a risky business in which the parties were experienced, voluntary participants:
92 Risk of injury is part of a professional jockey’s life and, while more unusual in flat racing, falls from horses is an inevitable concomitant of horse racing. Interference between horses and findings of carelessness are regular.
The circumstances of the accident are described in industry-specific terms which are admittedly difficult for a horseracing layperson to follow, but broadly the Defendant caused his horse to veer into the path of the Claimant’s horse, in a manner which did not comply with the rules of the race, over the course of several seconds. This caused the Claimant’s horse to trip and fall. The Claimant suffered serious neck injuries, and was left paraplegic.
The Claimant alleged that the Defendant had fallen short of the duty of care owed by sportsmen to one another, even allowing for the risks inherent in horse racing. The Defendant averred that what had happened was a mere racing accident, albeit with serious consequences, but that there was no breach.
It was common ground that the key authority on liability remained Caldwell v Maguire & Anor  EWCA Civ 1054, in which five key principles were described:
 Each Contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants.
 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.
 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.
 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.
 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 Claimant, therefore, had something of a mountain to climb. It was not sufficient to show that the Defendant had acted in breach of the rules, or had suffered a momentary lapse of concentration or skill, as might be the case in, for example, a road traffic accident, but that he had acted with nothing less than reckless disregard for the Claimant’s safety. The threshold is a high one.
Nevertheless, liability was found:
89 In my judgment, during this spell of riding between 15:27:51 through to 15:27:55, Mr Gibbons had a reckless disregard for Mr Tylicki’s safety…
90 The actions from 15:27:51 were not mere lapses or errors of judgment…
This was, perhaps, an unusual finding given the high threshold. It seems to the author that there are two distinctive features which provide a degree of explanation.
First, the court found that the Defendant, as a professional jockey himself, knew, or ought to have known, of the Claimant’s presence, and thought little of the Defendant’s account that he did not.
86… Mr Moore’s evidence was that the right thing to do was to take hold of the horse’s head, that is take control, and avoid the danger. As he said, “you have to take care with your surroundings, or you won’t win any races”.
72… I am satisfied that Mr Gibbons would have known, or at the very least ought to have known, Mr Tylicki was coming up the inside from that time.
Secondly, the level of reaction time expected of a professional jockey was exceptionally high, and this contributed to the finding of breach.
90… 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 decisions.
91 Horse racing is a sport which requires highly skilled professional jockeys to ride powerful animals, with minds of their own, to win or be best placed as they can. It is highly competitive, and riders require both mental and physical strength and courage. They need to be able to assess and reassess situations and make split second decisions as to what to do, based on skill, experience and intuition.
In short, while professional horse racing was inherently dangerous, the level of skill required to participate was expected to be commensurately high. It was falling short of that high level of skill which gave rise to liability in the present case.
This seems to create two separate categories of cases falling within the Caldwell category of liability – potentially dangerous sports where a high level of expertise is expected by virtue of participation; and sports where this does not apply. One can well see how the reasoning in Tylicki might apply to Formula 1 races or World Cup Rugby matches; significantly less so to local club level sport; and not at all to wholly amateur participation in bungee jumping or zorbing.
Caldwell appears, therefore, likely to remain essentially the last word on liability in English law. This does leave open an interesting question, however, where English law is found to apply to accidents occurring abroad. Participants in white water rafting in Austria or paragliding in Spain might well wonder whether local standards will apply if, for example, those were activities organised as part of a UK arranged package holiday, and how this might interact with the application of English law in the form of the Caldwell line of authority.
As an aside, for reasons perhaps best left unexplained, a second important decision involving very serious injuries caused by a horse was handed down last month, this time by the Court of Appeal. For this consideration of liability where injuries are caused by an animal under s.2 of the Animals Act 1971, see Ford v Seymour-Williams  EWCA Civ 1848.
About the Author
Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others  HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.
Horsing around at Work
The law of vicarious liability has been the subject of a number of high profile decisions in recent years. In Chell v Tarmac Cement and Lime Limited  EWCA Civ 7 the Court of Appeal considered a second appeal from judgments of HHJ Rawlings and Martin Spencer J respectively. The facts of the case arose from a practical joke in which a fitter at a work site thought it would be amusing to hammer two pellet targets next to the ear of a worker, the claimant. The pellets exploded, thereby causing noise induced hearing loss and tinnitus.
The claimant sued the prankster’s employer on the basis that they were a) vicariously liability for the negligence of their fitter, and b) in breach of their duty to take steps to prevent foreseeable risk of injury to the fitter.
Crucial to the Court of Appeal’s decision was the fact that the trial judge, HHJ Rawling, had given a “considered and careful judgment” setting out the findings of fact comprehensively. The trial judge found that the pellets had been brought to the site from outside. The primary tortfeasor had not been in a supervisory role, and had had no history of violence (albeit he had been guilty of ‘clocking’ misconduct, in claiming for hours he had not worked). Although there had been tension leading up to the accident (one group of workers had criticised the other for trying to steal their work by “appearing to work harder and to be doing a better job”), the tension had eased and there had been no express or implicit threat of violence in relation to the dispute.
Taking the issues in turn, the Court of Appeal upheld the findings of the trial judge and the appellate judgment of Martin Spencer J. In relation to vicarious liability, the employer had not authorised the act in question. There was no connection between the tortious act and the tortfeasor’s employment because the pellets were not the employer’s equipment, and the work in question did not involve the use of pellets. There was no abuse of power, and the risk created by the tortfeasor was not inherent in the business.
In relation to the second issue of breach of duty, the Court rejected the argument that the tortfeasor’s actions had been reasonably foreseeable. The ‘clocking’ misconduct was a distinct type of misconduct, which gave no indication that the employee would engage in horseplay. The mere fact that heavy tools were available did not in itself create a reasonably foreseeable risk of injury due to misuse of a tool. The Court went on to state that “if it is seriously suggested that there should have been a specific instruction not to engage in horseplay, I regard the same as unrealistic. Common sense decreed that horseplay was not appropriate at a working site. The fitters were employed to carry out their respective tasks using reasonable skill and care, and by implication to refrain from horseplay. It would be unreasonably and unrealistic to expect an employer to have in place a system to ensure that their employees did not engage in horseplay.”
One must inevitably have some sympathy with the claimant in a case such as this. The Court of Appeal’s judgment might be regarded as a common sense application of the law on vicarious liability, but readers will be familiar with worse conduct (sexual assault, fraud) that the courts have found to have occurred in the course of employment. The case is nevertheless a welcome addition to the authorities on the subject, particularly in relation to the use of workplace equipment, the scope of prior misconduct, and the significance of any hierarchy between workers.
About the Author
Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.
Speaking of horseplay, the team was delighted to read that tour operator TruTravel has announced its intention to roll out what are described as ‘fun fitness tours’. Regrettably the FitVentures trips will only be available for holidaymakers aged between 18 and 30, which means that only the younger members of the team will be able to participate in them, but these lucky funseekers will be able to choose between Muay Thai classes, beachfront bootcamps, volcano hikes, bike rides, paddle boarding, spa days and healthy cooking classes. The older members of the team remember the days of the original Cub 18-30 holiday, which generated a good deal of work for travel law practitioners, and wonder whether the new iteration, whilst undoubtedly more suited to the tastes of the Youth of Today, will create its own particular niche. After all, if there’s one thing the cases reported in this week’s Roundup teaches us, it’s to expect the unexpected, particularly when participating in sports.