FREE BOOK CHAPTER: Liability of the Player to Spectator and Third Parties (From 'A Practical Guide to Personal Injuries in Sport' by Adam Walker & Patricia Leonard)
06/02/17. In this section consideration is given to the circumstances in which a participant in a sporting event may be held liable to a spectator injured while attending an event. Such claims are commonly framed in negligence, with the operative allegation being that the participant failed to take reasonable care for the safety of the spectator rather than in trespass to the person.1 While one may recall circumstances in which trespass might have been alleged had proceedings been brought,2 the focus of this section is on claims advanced in negligence.
(1) LIABILITY IN NEGLIGENCE
In common with claims brought by participants against other participants, the cases in this area have generally been decided at the breach of duty stage, involving a consideration of the standard of care expected of the participant and whether on the facts that standard was met. The standard of care expected of a participant in such circumstances might be said to be generous to the participant - it was observed in Smoldon v Whitworth & Nolan,3 when reviewing the case law dealing with injuries caused to spectators by players, that competitors are entitled to be all but oblivious to spectators while they are properly intent on winning the contest.
The leading case in this area remains Wooldridge v Sumner,4 a case in which a photographer was injured by a competitor at an equestrian event. The defendant galloped a horse around an arena at a speed such that a wide arc was necessary, the horse then went out of control and the photographer was struck when he attempted to protect a lady sitting on a bench adjacent to the arena. At first instance the plaintiff succeeded in negligence, the breach being the riding of the horse at too great a speed and the manner in which an attempt was made to bring the horse back into the arena. On appeal however the Court of Appeal held that the failures were ‘mere errors of judgment’ and did not amount to negligence in the circumstances. It was said that what the reasonable spectator would expect is as relevant as what the participant would expect.5 Diplock LJ observed that:
“A reasonable spectator attending voluntarily to witness any game or competition knows and presumably desires that a reasonable participant will concentrate his attention upon winning, and if the game or competition is a fast-moving one, will have to exercise his judgment and attempt to exert his skill in what, in the analogous context of contributory negligence, is sometimes called "the agony of the moment." If the participant does so concentrate his attention and consequently does exercise his judgment and attempt to exert his skill in circumstances of this kind which are inherent in the game or competition in which he is taking part, the question whether any mistake he makes amounts to a breach of duty to take reasonable care must take account of those circumstances.”6
“The practical result of this analysis of the application of the common law of negligence to participant and spectator would, I think, be expressed by the common man in some such terms as these: ‘A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act may involve an error of judgment or a lapse of skill, unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety.’ ”7
As will be seen below, in subsequent cases the test of “reckless disregard” has been adopted and applied.8
In Wilks v Cheltenham Homeguard Motor Cycle & Light Car Club,9 a number of spectators were injured during the course of a motorcycle scrambling event, when they were lined up against a rope which marked out the spectator’s enclosure. A motorcycle left the track at around 25-30mph and struck the spectators causing serious injury. It was held once more that in order to make out their claims the claimants had to demonstrate that the participant had shown a “reckless disregard” for their safety or that their injury was caused by an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made, such that the error could not be reasonably regarded as excusable.
A distinction may be drawn between cases in which the error occurs in the course of the contest as opposed to the error of the participant occurring in the course of the pre-contest preparations, at which point there is a greater opportunity for the participant to reflect on their decisions. That is well illustrated by the case of Harrison v Vincent,10 in which the defendant was held liable for injury to the passenger in the defendant’s side car resulting from a failure to inspect and maintain the brake mechanism, but not as a result of an error during the course of the race when the defendant missed his gear once the brakes had failed. Similarly, the ‘error of judgment in the heat of the moment’ argument may not be available to a defendant who causes injury to a spectator not when actually competing. In Payne & Payne v Maple Leaf,11 a participant was held liable to a spectator when the spectator was injured as a result of a fight between participants in an ice-hockey match, when not actually competing for the puck. Similarly, in Cleghorn v Oldham,12 the defendant was held liable for an injury that resulted from a demonstration golf swing, where there was no ‘heat of the moment’ as such.
Cases on those distinct facts aside, the test of “reckless disregard” remains relevant when considering liability as between participants and spectators. The question might be posed however as to whether there is any good reason in principle why the test as between participants and spectators should be different from the test as it applies as between participants, with the question of whether the injury resulted from a mere error of judgment being taken into account when considering the appropriate standard of care and the participant’s conduct. In Blake v Galloway,13 Dyson LJ suggested that the test to be applied between participants in horseplay was analogous to that as had been applied in Wooldridge albeit, “in a slightly expanded form”.14 Nevertheless, the position in Wooldridge and Wilks was confirmed as regards a participant’s liability to a spectator by the Court of Appeal in in Smoldon,15 albeit that the observations made in Smoldon were obiter.16
(2) LIABILITY IN NUISANCE
This section briefly considers the potential liability of the participant to the bystander or members of the public in the vicinity of the sporting venue. The bystander may or may not be a spectator but it is helpful to consider this potential head of liability at this point. It is also considered in Chapter 3 which deals with the liability of the owner or occupier of the sporting venue. While many of these cases have been brought against the owner or occupier of the venue in question the individual participant may equally be the subject of such a claim.
Liability in nuisance may be subdivided into private and public nuisance. A party may raise private nuisance as a cause of action in circumstances where there has been an interference with their reasonable use and enjoyment of their land. The claimant must have a proprietary or possessory interest in the land in question. In contrast, public nuisance is relied upon in circumstances where danger is caused to individuals located on a public highway. The difference is illustrated well by the cases in this area relating to damage caused by balls being struck beyond the boundaries of golf and cricket clubs. Where the injured party is located on the public highway then a claim may be brought in public nuisance, whereas where the claimant is located on their own adjoining land then private nuisance is the appropriate cause of action to consider.
Private nuisance is made out where the defendant has caused an interference with the claimant’s reasonably enjoyment of his land, which has not otherwise been authorized.17 It is to be determined by reference to the circumstances and the particular locality. In the sporting context that would necessarily involve a consideration of the frequency and consequences of the interference when it occurs. While coming to the nuisance is not a defence, it may be relevant as a feature of the locality which is to be taken into account or it may be a ground on which to refuse to order injunctive relief.
Illustrations of liability
Liability has been established in circumstances where a taxi-driver’s windscreen was struck by a golf ball onto an adjoining highway,18 where balls were hit out of the grounds of a golf club on regular basis and19 in one case where 60,000 golf balls were hit over a fence each year.20 Liability was not established in circumstances where cricket balls were hit out of the grounds of a cricket club but only rarely.21 Liability has also been established in a number of cases involving noise nuisance associated with sporting activities although not resulting in personal injury.22
7 Bedford Row
1The basic principles of demonstrating each head of liability are dealt with earlier in this chapter.
2E.g. Eric Cantona kicking a Crystal Palace fan after being sent off in 1995 or Didier Drogba throwing a coin into a crowd of Burnley spectators in 2008.
3 ELR 249, per Lord Bingham LCJ at 256.
4 2 QB 43.
5Per Diplock LJ at 67, citing Hall v Brooklands  1 KB 205, Scrutton LJ at 214.
8And as Beloff puts it, thus acknowledging the difference between a Carling colliding with a spectator and a Cantona kicking one (Beloff et. al., Sports Law, 2nd edition, 2012, p145, at 5.49).
9 1 WLR 668.
10 RTR 8.
11(1949) 1 DLR 369.
12(1947) 43 TLR 465.
13 EWCA Civ 814.
14At para 16.
16Per Lord Bingham LCJ at 256.
17Coventry & Ors v Lawrence & Ors  UKSC 13, paras 3-4.
18Castle v St Augustine’s Links Ltd  38 TLR 615, public nuisance.
19Miller v Jackson  1 QB 966, private nuisance.
20Lamond v Glasgow Corporation (1968) SLT 291.
21Bolton v Stone  AC 850 and Potter v Carlisle & Cliftonville Golf Club  NI 114.
22Including Coventry & Ors v Lawrence & Ors  UKSC 13, Watson v Croft Promo-sports Ltd  3 All ER 249 and East Dorset District Council v Eaglebeam Ltd & Ors  EWHC 2378 (QB).
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