Winner All Right? Liability in Tort For Injury in Sport

Author:Ray Ryan
Position:Junior Sophister Law, Trinity College, Dublin
Pages:155-175
WINNER
ALL
RIGHT?
LIABILITY
IN
TORT
FOR
INJURY
IN
SPORT
RAY
RYAN*
[B]ut
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.'
Despite
the
increasing frequency with
which
sporting celebrities
have
recourse
to
the
courts
to
settle
disputes,
there
appears
to
be
no Irish
authority
which
bears
directly
on
the
question of
the
liability
of
one
participant
to
another
for
injuries
suffered
in
a
sporting
contest.
2
Indeed,
it
is
only
a
slight exaggeration
to
say
that
one
could
count
on one
hand
the
number
of
cases
concerning
the
duty
of
care
on
the
field
of
play
to
have
been
decided
by
appellate
tribunals
in
the
common
law world.
Nonetheless,
one
can
readily
discern
from
this
small
body
of
caselaw
the
existence
of
a
duty care
between
participants
in
sporting
activities.
This
orthodoxy
has
not
gone
unchallenged
and
academic
commentators
are
far
from being
unanimous
on
the
desirability
of
imposing
a
duty
of
care
on
sportsmen. Indeed,
the
policy-based argument
for
relieving
participants
of
the
duty
of
care
is
worthy
of
attention.
It will
be
submitted
that,
on
balance,
the
Irish courts should
not
be
persuaded
by
the
policy-based
immunity
argument
and
should follow the
lead
of
their common
law
neighbours
in
proclaiming
the
existence
of
a
duty
of
care
in
this
context.
This
article will
endeavour
to
demonstrate
that the
real
controversy
lies
not
in
the
question
.
Junior
Sophister
Law,
Trinity
College,
Dublin.
I
wish
to thank
Desmond
Ryan
and
Sara
Siebert
for
their
helpful
comments
on
an
earlier
draft.
Responsibility
for
any
defects
that
remain
is
entirely
my
own.
1
Wooldridge
v.
Sumner
[1962]
3 WLR
616,
at
619;
[1963]
2
QB
43,
at
52,
per
Sellers
LJ.
2
Although
it
will
be
submitted
infra
that
considerable
assistance
on
this
issue is
to
be
gleaned
from
the
Supreme
Court decision
thirty
years ago
in
McComiskey
v.
McDermott
[1974]
IR
75.
3
See
generally,
Beloff,
Kerr
and
Demetriou, Sports
Law
(Hart
Publishing,
1999),
at
111-117;
Gardiner,
"Tackling
from
Behind:
Interventions
on
the
Playing
Field"
in
Greenfield
and
Osborn
eds.,
Law
and
Sport
in
Contemporary
Society
(Frank
Cass,
2000);
and
Yeo,
"Accepted Inherent
Risks
Among Sporting Participants"
[2001]
Tort Law
Review
114.
©
Ray Ryan
and
Dublin University
Law
Society
Trinity
College
Law Review
of
whether
to
impose
a
duty
of
care,
but rather
in
assessing
the
standard
at
which
that duty
is
to
be
set.
The
view
presented
is
that mere errors
of
judgment
by
sportsmen that
cause injury
to
fellow participants
should not
attract
liability
in
tort.
In
advocating
a
high
threshold
of liability
in
sporting
injury
cases,
it
is
suggested
that the standard
should
be
set
at
a
level
of
'reckless
disregard'.
In
light
of
the
circumstances
that
prevail
in
a
fast-moving
sporting
contest,
4
it
is
felt that this
standard best
serves
to
strike
a
balance
between
the
competing interests
that
a
civil
claim
in
such
a
case
throws
up.
Further,
since "reckless
disregard
is
only a
reflection
of
the
amount
of
evidence
required
to
prove
negligence
in
sport,
not
a
new standard
of
care",
5
it
is
favoured
because
it
clarifies
the
need
to
place
a
higher
burden on
plaintiffs
here
than
in
ordinary
personal
injuries
claims.
It
is
submitted that
choosing
the
label
'reckless
disregard'
over
'negligence
in
all
the
circumstances'
is
of
little
import.
What
is
important
is
that
we
set the
standard
at
a
level
high
enough
to
preclude
the
imposition
of
liability
for
a
mere
lapse
in
concentration or error
of
judgment
by
the
sportsman.
Immunity in
Ireland
-
The
Likely
State
of
Play
It is
necessary
to
discuss
whether
a
duty
of
care
will
be
held
to
exist
when
such
a
case
presents
itself
in
Ireland.
The
lesson from
other
jurisdictions
is
that
once the
'immunity
argument' has been
rejected,
the
recognition
of
the
existence
of
a
duty
of
care
follows
automatically.
As
such,
it
is
to
this
immunity
issue
that
we
now turn.
It
might
be
considered
unlikely
that this
argument
will
be
pursued
in
an
Irish
court,
still
less
accepted.
But
history
shows
us
that
it
has
always
been
a
feature
of
the
initial
cases
in
this
area
of
tort
law.
6
The
argument
runs
as
follows:
the
law
should
leave
sport
free
to
govern
itself
by
its
own
4
It
is
with
such
sports that
this discussion
is
concerned.
The
altogether
different
nature
of
some
sports
means
that
participants
in
those
sports do
not
deserve
to
be
relieved
of
the
normal
duty
of
care
in
negligence.
The
classic
example is
golf. It
is
submitted
that
the
golfer
who
injures
a
fellow
golfer
in
close
proximity
to
him
at
the
time
he
takes
his
shot
can
properly
be
held
liable
for
failure
to
warn,
or
for
not
waiting
until
the
fellow
player
has
'moved on'.
The
golfer
may
be
held
liable
for
failure
to
call
out
to
a
fellow
player
'out
of
courtesy
and
in
order
to
alert
him
to
risk,
even
if
the
risk
was
small'.
See
Pearson
v.
Lightning,
The
Times,
30
April
1998.
See
also
the
comments
of
Sellers
L.J.
in
Wooldridge
v.
Sumner
[1962]
3
WLR
616,
at
622-623; [1963]
2
QB
43,
at
55-56.
5
James,
"Tort,
Compensation
and
ADR
for
Participatory Violence"
excerpted
in
Gardiner,
Sports
Law
(2ad
ed.,
Cavendish
Publishing,
2001),
at
705.
6
Rootes
v.
Shelton
116
CLR
383;
[1968]
ALR
33
(HCA),
(hereinafter
Rootes)
and
Condon
v.
Basi
[1985]
1
WLR
866;
[1985]
2
All
ER
453,
being
two
examples
in
point.
[Vol.
6

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