Sports Law

Second edition

by Mark James

Updates for Chapter 8: Liability for dangerous premises and dangerous events

These updates were last reviewed in July 2013


Updates and Amplifications

8.2.5.1 Participants v. Occupiers – establishing a claim

​In Glennie v University Court of the University of Aberdeen [2013] CSOH 71, the importance of conducting appropriate risk assessments when determining whether the common duty of care owed to visitors to sports premises has been breached, was examined. The pursuer (claimant) brought an action under s.2 Occupiers’ Liability (Scotland) Act 1960, which imposes a similar duty to that found under s.2 Occupiers’ Liability Act 1957. He claimed that the occupiers of an AstroTurf tennis court were in breach of the duty owed to him by allowing moss to grow through the plastic grass blades, that the playing surface was, therefore, unsafe to play tennis on and that he had slipped on the moss causing him to break his ankle. The claim was dismissed on the grounds that it was ‘inconceivable’ (para.41) that the combination of daily, weekly and monthly checks and general maintenance of the courts conducted by the defendant would not have identified a patch of moss the size of that claimed by the pursuer. Therefore, there was no breach of the duty of care owed.

Where wooden railway sleepers had been used to create steps leading to a wooden bridge across a gully, there was no breach of duty by the Golf Club for using wood that could become slippery and no breach of duty for failing to cover the steps in non-slip material, Fallon v Chesfield Downs Golf Club Ltd (unreported, County Court (Reading) 27 July 2012. A golf club is entitled to expect that a golfer will take appropriate care of themselves whilst traversing the course of which it stands as occupier and that players will look out for damp conditions which may make some surfaces slippery, particularly when playing on a cool, damp autumn morning where there is dew on the ground.

8.2.5.2.2 & 3 Participant v Occupiers – defences: warnings and contributory negligence

The adequacy of the warnings provided to sports participants has been examined in a number of recent cases. Such cases also often raise issues of contributory negligence where the claimant has failed to have proper regard to the warning or the inherent dangers associated with engaging in the injury-causing activity (below, 8.2.5.2.3). At the original trial of Phee v Gordon and Niddry Castle Golf Club [2013] CSIH 18 (see also, 4.6.2.2), the court held that the owners of a golf club were 30% liable for the injuries caused to a golfer who was hit in the eye whilst crossing a fairway to reach the next tee. On appeal, the Inner House of the Court of Session held that the primary cause of the injury was the club’s failure to regulate priority between those playing the 18th hole and those seeking to cross its fairway to reach the seventh tee. Although club members were aware of the danger of crossing at this point and often took refuge besides trees at the edge of the fairway, as the pursuer (claimant) and his group were not club members, they were unaware of local custom and practice, should have been warned of the on-course dangers orally, on the scorecard issued to them by the club and/or by warning signs being placed at the fairway’s crossing point. Damages were reapportioned 80% to the club and 20% to the player who hit the errant shot.

In Ireland v David Lloyd Leisure Ltd [2013] EWCA Civ 665, the claimant had the end of her finger guillotined off whilst ‘spotting’ for a friend who was using a weights machine at the one of the defendant’s leisure facilities. An additional block had been incorporated into the frame of the apparatus, the presence of which could not be explained by the defendant and which was not part of later models of the equipment; blocks of this nature were usually located towards the base of the machine to prevent the weights from coming into contact with the ground. The court imposed liability on the defendant because the small warning sign telling users to keep their body, hair and clothing free from all moving objects was inadequate as it did not provide a factually explicit warning that was sufficiently visually obvious to the equipment’s users. However, the claimant was found 25% contributorily negligent for not taking sufficient care of herself by placing her hands too close to the moving parts of the machine.

The latest in the long line of cases involving catastrophic injuries caused by diving into a swimming pool was heard in McCarrick v Park Resorts Ltd and Chiltern Health and Safety Service and Johnson [2012] EWHC B27 (QB). The claimant dived into what he thought was the deep end of a swimming pool at a point where the water was only one metre deep, resulting in his suffering complete tetraplegia. There were no obvious warning signs prohibiting diving, although there was one warning propped up against the window at the far end of the room, approximately 25m from the claimant’s point of entry into the pool. Depth signs were at floor level, indicating that the depth ranged from 1-1.5m across the length of the pool, however the dim ‘mood lighting’ and lack of supervision meant that these were not brought to the claimant’s attention. The claimant explained that he thought he was diving into the deep end because a member of his group was stood in the far end of the pool where the water only came up to his chest, therefore he assumed that was the shallow end. The court held that where a pool was completely inappropriate for diving, such as this one, the warnings should have been much more prominent, that the lighting should have been brighter and an attendant present to reinforce the safety pool’s regime. The first defendant’s failure to make the pool safe was a breach of the common duty of care and liability imposed. The claimant was held to have been contributorily negligent on the grounds that he had taken an obvious risk of injuring himself by diving into water of unknown depth, resulting in his damages being reduced by one third.

8.2.5.2.3 Participant v Occupiers – contributory negligence

In contrast to Glennie (above, 8.2.5.1), the English case of Corbett v Cumbria Kart Racing Club, Tracksport Challenge Ltd and the RAC Motor Sports Association Ltd [2013] EWHC 1362 (QB) held that the failure to conduct adequate risk assessments led to the first and second defendants being found 90% responsible for causing the claimant’s catastrophic injuries; the claimant was 10% contributorily negligent. The claimant had lost control of his motorcycle and sidecar outfit on a fast bend of the first defendant’s race track during an event organised by the second defendants. He skidded across a patch of grass on the infield, through a tyre wall into a parked ambulance, suffering severe brain and internal injuries. It was held that the failure to assess the risks of positioning the ambulance at this spot was a breach of the common duty of care under s.2(2) Occupiers’ Liability Act 1957 and/or negligence on the part of both the first and second defendants. Further, as the tyre wall was not designed to prevent outfits from crashing into the ambulance, but to prevent racers from cutting one of the corners, it should not have been parked at this part of the track. As no risk assessment had been carried out to determine whether or not it was safe to park the ambulance at the crash site, liability was imposed. The finding of 10% contributory negligence reflected the claimant’s having lost control on this particular bend in part because of a fault with the motorcycle’s seat. The claim against the third defendant was dropped as it was not the relevant governing body for motorcycle and sidecar outfits.

Corbett, Ireland and McCarrick all demonstrate clearly how courts are becoming increasingly willing to apportion at least part of the blame for sports injuries to claimants. However, where the claimant is genuinely not at fault, Phee confirms that compensation will be paid out in full to a blameless victim.

8.6 Provision and Use of Work Equipment Regulations 1998

Hide v The Steeplechase Company (Cheltenham) Ltd and others [2013] EWCA Civ 545, introduces an alternative cause of action to those usually pursued under either negligence or the Occupiers’ Liability Acts. The claimant was injured during a horse race over hurdles at Cheltenham racecourse. His horse stumbled after jumping the first hurdle, unseating the claimant and throwing him at speed into a post supporting the outside rail of the course. The action was brought under the Provision and Use of Work Equipment Regulations 1998, claiming that it was reasonably foreseeable that a jockey unseated at the first hurdle might come into contact with the outside rail/posts because they were positioned too closely to each other.

The Court held that Regulation 3(3) provided self-employed workers, such as jockeys, with the same protections as employees, therefore the hurdles and rails surrounding the racecourse were equipment that must be suitable, as defined in Regulation 4. Suitability under the Regulations is judged by whether injury caused by the equipment was reasonably foreseeable; liability can be excused only where the defendant can prove that the harm was caused by unforeseeable circumstances beyond its control or exceptional events, the consequences of which could not be avoided despite the exercise of all due care. As it was reasonably foreseeable that a jockey might come into contact with the rails and the defendant had produced no evidence of either unforeseeable circumstances or exceptional events causing the injuries, liability under the Regulations was established. In para.26, it was left open whether a claim under the Occupiers’ Liability Act 1957 and/or negligence could have been defended on either de minimis grounds, as in Bolton v Stone [1951] AC 850 (above, 8.4.4), or adherence to the guidance provided by the sport’s governing body, the British Horseracing Authority (BHA), as in Simms v Leigh Rugby Football Club Ltd [1969] 2 All ER 923 (above, 8.2.5.1). If the latter claim could be established, then the BHA itself could be open to a claim of negligence on the basis of providing inadequate guidance to those relying on its expertise in matters of safety, as was the case in Watson v British Boxing Board of Control Ltd [2001] QB 1134 (above, 5.4.1.1.2). Until there is an appeal to the Supreme Court, it will remain unclear whether or not the reasonable foreseeability test is the same under both the Regulations and the common law.