Explain the application of ordinary negligence taking account of all the circumstances to the question of negligence liability in sport.
Negligence has been described as conduct that falls below the standard regarded as normal or desirable. For Negligence to be established there has to be a fulfillment of the threefold test that is that the defendant (the other party) owed the claimant a duty of care, that this duty of care was breached and that this breach of duty caused or contributed to the injury or loss suffered as in Donoghue v Stevenson  AC 562.A duty of care isa requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person’s actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.(Law.com).
To establish a duty of care as in Caparo Industries v Dickman Harm must be a reasonably foreseeable result of the defendants conduct (foreseeable but highly improbable for a reasonable person to anticipate the harm to the claimant and not take any action to avoid it) ,there must be a relationship of proximity between the defendant and the claimant and it must be fair , just and reasonable to impose liability. If there exists a duty of care then the next important aspect is to see whether that duty of care was breached. Five propositions were extracted from a number of cases as in Caldwell v Maguire & Fitzgerald Those 5 propositions are :1)Each contestant in a lawful sporting contest owes a duty of care to each and all other contestants.2)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.3)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, its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant.4)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 a mere proof of a momentary lapse in skill and thus care.5)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. Ordinary negligence is the duty to take care in the circumstances. In Caldwell v Maguire & Fitzgerald it is interesting to note that failure to look before moving was found to be of crucial importance in finding liability, this failure to look demonstrating a clear lack of reasonable care on the part of the defendants, it was precisely this action or lack of action that led to the collision.
Finding that a duty of care exists is the first step in maintaining a negligence claim.(Wong, 2002).Occupiers of sporting facilities owe a duty of care to all those on the premises to make safe what would otherwise be unsafe and to guard against dangers.(Sarre, 1995). Participants owe one another a duty to prevent foreseeable risks of injury. This is also owed to officials and spectators as in Rootes v Shelton .Referees and other match officials also owe a duty to participants to ensure the rules of the game are enforced and to penalize those infringing on them as in Smolden v Whitworth and Vowles v Evans .They are also under duty to care for the safety of participants as in Smolden v Whitworth.
On the duty owed between participants, Barwick CJ in Rootes v Shelton said that the rules of the sport are, ‘neither definitive of the existence nor the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of that duty’. Duties and their breaches therefore depend on the circumstances of the individual case. This includes assessing the type of activity, the age of the participant, the ability of the participant, and the coach’s, instructor’s or administrator’s level of training and experience. As there are differing risks across the various sports the courts will apply separate standards of care, ‘in different sports and in different standards or divisions of sport’.
Deangelis (p526) stated that the standard of ordinary negligence does not take into account the competitive nature of sports nor that injuries occur in the heat of competition and should not be second guessed latter by a judge or jury. He goes on to state that the standard of reckless disregard, takes into account that injuries occur and the mere presence of a injury should not result in tort liability. The standard does however protect participants from acts which are reckless or clearly outside the rules of the game.
The standard of ordinary negligence, as set out in Donoghue v Stevenson fails to take into account the special nature of sporting activities. The Canadian case of Agar v Canning exemplifies this concept: “The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse.” Influenced by the hostility and opposition to the standard of reckless disregard as in Wooldridge v Sumner. The decision of Donaldson MR in Condon v Basi retreated back to ordinary negligence. It was ruled, that the duty of care between players in competitive sports, was a duty to take reasonable care, taking into account the rules of the game and the circumstances in which it was being played: “you are under a duty to take all reasonable care taking account of the circumstances in which you are placed.”
Gardiner S. et al. Sports Law (2001) 2nd edn Cavendish
Glenn Wong, ‘Essentials of Sports Law’ (3rd ed, 2002) 59.
Grayson E. Sport and the Law (2000) 3rd edn. Butterworths
A Duff ‘Reasonable Care v Reckless Disregard. revisited’ 10 Sport and the law journal 156
Charlish P. “A Reckless Approach to Negligence.” J.P.I. Law 2004, 4, 291-296
Charlish P.,” Sports ordinary Negligence in the final furlong”, 4 JPIL 308-319
F.J. Deangelis, ‘Tort – Standard of care – Duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct. Crawn v Campo’ (1995) 5 Seton Hall Journal of Sports and Entertainment Law 509
Goodhart A.L. “The Sportsman’s Charter.” 1962, 78 L.Q.R. 490
M. James & F. Deeney ‘The standard of care in sports negligence cases’ 1 Entertainment Law Review 104
Natasha Schot,(2005)Negligent Liability in Sport,Faculty of Law,Bond University,Australia.
Rick Sarre, ‘Spectator Protection – The Legal Issues Confronting Sports Fixture Operators’ (1995) 2 Canberra Law Review 27.
Smolden v Whitworth  TLR 249 and Heyden Opie, ‘Case Notes: Referee Liability in Sport: Negligent Rule Enforcement and Smolden v Whitworth’ (1997) 5 Tort Law Journal 16.
Table Of Cases
Agar v Canning (1965) 54 WWR 302
Blake v Galloway  EWCA Civ 814
Caldwell v Maguire and Fitzgerald  EWCA Civ 1054
Condon v Basi  1 WLR 866
Donoghue v Stevenson  AC 562
Rootes v Shelton  ALR 33
Smolden v Whitworth  PIQR 133
Vowles v Evans  All ER (D) 134
Wooldridge v Sumner  2 QB 43
The continued legality of both professional and amateur boxing is an historical anomaly owing more to irrelevant case law than sound legal principles.
Boxing is defined as the art, act or profession of fighting with the fists. Prize-fighting can be defined as a bare knuckled contest organised for money with an unlimited duration. (Sithamparanathan, 2002) ‘Boxing originally appears to have been regarded as lawful not through any application of principle, or by reference to the legal rules applying to other sports, but simply because it was not the prize-fighting that had been declared unlawful, on grounds as much related to public order as to the law of offences against the person, in R v Coney. (Gunn and Ormerod, 1995)
The sport of boxing, both professional and amateur is an anomaly in English Law in that it is exempt from criminal liability and is immune from the rules of consent. There is no specific legal precedent for professional boxing and the basis for its exemption from the law is unclear. The leading case of R. v. Coney is cited as the authority for the legality of boxing, when in fact what it established was that prizefighting was unlawful. (Sithamparanathan , 2002)
The various judges namely Hawkins J, Lord Coleridge whose comments illustrate how the essence of the judgment is concerned with the breach of the peace caused by the large crowds of (mainly) working class people who attended prize-fights and bayed for blood. The main reasoning according to them as to why prize-fighting is illegal and distinct from sparring is the fear of the breach of the peace caused by working class people who were drunk, disorderly, gambled and often fought amongst themselves. There is very little reference to the actual injury suffered by the fighters, apart from the judgment of Stephen J. where he focuses on the dangerous nature of prize- fighting with severe injuries inflicted upon the contestants. Although logically the salient reason for banning prize-fights should be the injury caused to the contestants. (Sithamparanathan , 2002)
The next question is whether boxers may validly consent to a boxing match and to the actual bodily harm necessarily involved, and so prevent the commission of any offence. Undoubtedly both boxers do in fact consent before a fight. The legally significant question is whether this factual consent is also legal consent. Boxers may legally consent to battery and assault. The doubt is whether boxers may consent to the infliction of bodily harm. This is a question of public policy. The courts are empowered to impose limits on the bodily harm to which people may consent. .(Gunn and Ormerod, 1995). In Attorney General’s Reference (No. 6 of 1980) the issue before the Court of Appeal was whether there could be consent to injuries sustained in a street fight. It mentions that it is not in the public interest that people should try to cause each other bodily harm for no good reason and that it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and, or caused. It appears that any injuries inflicted even where consented to will be subject to criminal liability, except for those injuries sustained in the course of a properly conducted sport. These properly conducted sports may enjoy exemption from the law because they are in the public interest. However, Sithamparanathan believes that this raises the question of whether modern boxing is in the public interest, an issue long debated by Parliament and academics.
The Law Commission Consultation Papers Nos. 134 and 139 provide analysis of the role of consent to violence in sport and the exceptions provided for boxing through policy reasons and the common law. In the leading case of R v Brown it was held that consent was not a defence to criminal charges arising out of sadomasochistic activities between consenting homosexuals in the privacy of their own home. Sithamparanathan argues that policy reasons offered by Brown can be applied to boxing. The degree of injury is unknown for every punch thrown in a bout and there is a high risk of cross infection (i.e. transmission of communicable disease) in boxing. One of the common disorders in contact sports is ‘punch drunk syndrome’ which is characterized by neurogical deficits which may cause serious long-term damage. One can argue that there are inadequate controls on the degree of violence inflicted in boxing that has resulted in deaths such as Bradley Stone (1994) and James Murray. (1995).It is irrefutable that partaking in boxing leads to quite brutal cuts; therefore there is a distinct risk of the transmission of blood diseases. Although most boxers are required to have a medical certifying that they do not have certain diseases, it is likely that some get away with it, and thus risk transmitting disease to their opponents. While boxers can legally consent to the blows inflicted in a bout the reason for this exemption is simply that the imperviousness of boxing is firmly enshrined in the criminal law.
There are some arguments to counterbalance the pertinence of some of the public interest arguments in favour of boxing. Whilst amateur boxing is considered a sport, it is debatable that professional boxing is glorified violence used for entertainment as opposed to having any kind of sporting value. The argument that self-advancement for poor young men is to box and potentially cause themselves brain injuries, just for a better standard of life is a sad reflection of modern-day society. It is true that boxers must be fit and healthy to participate in the sport. However this is true of many other sports that require a high level of fitness such as football. Any strict training system requires self-discipline; however it is not necessary to box to have self-discipline. The status of boxing has been discussed in cases dating back as far as R. v. Young in the nineteenth century, to R. v. Brown in 1993, though it has never been sufficiently examined by the courts.(Sithamparanathan , 2002)
Anderson, J.”The legality of Boxing: a punch drunk love?”(2007), Birkbeck Law Press, Abingdon.
Gardiner S. et al “Sports Law” (3rd edit), 2006, Cavendish, London
M, Gunn,D. Ormerod,’Legality of Boxing'(1995),15,2,Legal studies,181-203
Wilson, W.” Criminal Law Doctrine and Theory (2nd ed), (2003), Pearson Education Limited, Essex
A, Sithamparanathan, ‘Noble art of self defence or unlawful barbarism’, (2002), 13, 8, Entertainment Law review, 183-187
Anderson J. “Pugilistic prosecutions: prize fighting and the courts in nineteenth century Britain”, School of Law, University of Limerick, Ireland
G Williams ‘Consent and Public Policy’  Crim LR 74; G Williams Textbook of Criminal Law (London 1978
Law Commission Consultation Paper No 139 “Consent and the Criminal Law” (London, HMSO)
Law Commission Consultation Paper No.134 “Consent and Offences against the Person” London, HMSO 1994, para. 5.3
Attorney General’s Reference (No 6of 1980)  QB 715,
R v Brown
R v Young (1866)
R. v. Coney (1882 8 L.R. Q.B.D. 534)
http://news.bbc.co.uk/sport1/hi/other_sports/1074469.stm- Ring Tragedies (Bradley Stone (1994) and James Murray.(1995)
With reference to case law explain the defence of exceptional circumstances contained in the World Anti Doping Agency code and assess whether it has unnecessarily diluted the principle of strict liability in doping control in sport.
It is important to understand firstly what is meant by exceptional circumstances in the World Anti Doping Agency, and how it relates to the principle of strict liability. The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results. It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.(WADA 2009). Charlish and Heywood believe that principle of strict liability is a primary pillar in the fight against doping violations in sport, as it serves to remove the inherent uncertainty resulting from questions of guilt. The principle of strict liability had been applied by the International Olympic Committee in its Anti-Doping Code as well as by the vast majority of pre-Code anti-doping sports rules. In accordance with WADA’s stakeholders’ wishes, the Code continues to apply the same principle. (WADA 2009)
There is a flexibility, when a sanction is being considered to take into consideration the circumstances or intentions of the athlete. The rule is the initial point so that, while an anti-doping rule violation occurs regardless of the athlete’s intention, there is flexibility in the sanctioning process to consider the circumstances. (WADA 2009) .These are known as exceptional circumstances.
There are three apparent categories of ‘drug offenders’, they are recreational drug abusers who might do marijuana, ecstasy or cocaine socially, and there are performance-enhancing users some of whom take drugs deliberately in order to enhance their performance, and some of whom consume the banned substance unintentionally by virtue of their use of another product. (Sithamparanathan and Himsworth, 2003).In the case of Baxter v IOC, this is exactly what happened. After Baxter won the bronze medal at the XIX Olympic Winter Games in Salt Lake City, as a medalist he was required to undergo a doping test for which he submitted a urine sample. The urine sample contained a prohibited substance called methamphetamine which the laboratory tests detected. The methamphetamine entered his system due to use of a Vicks inhaler that he was using.Mr.Baxter’s requests that the IOC direct the accredited laboratory at UCLA to conduct an isomer separation analysis on his A and B sample to show whether the dextro or levo form of methamphetamine was present in his system at the time of competition were denied. The IOC executive board upheld the proposal to disqualify Mr. Baxter by removing his bronze medal and diploma. After appealing to the CAS a number of times the end verdict was that the panel was of the opinion that a prohibited substance, the stimulant levmetamfetamine was present in Mr. Baxter’s body, that its presence alone constitutes a case of “doping’ within the meaning of the OMAC and that pursuant to the OMAC this case of doping “automatically leads to invalidation of the result obtained “by Mr. Baxter whether or not his performance was enhanced. (Baxter v IOC).The outcome of this arbitration is the necessary consequence of a rule-making decision of the IOC. The Panel is unable to rewrite or to ignore these rules unless they were so overtly wrong that they would run counter to every principle of fairness in sport. The Panel did not find that the automatic disqualification rule violates such principles. (Baxter v IOC). Therefore the Panel upheld the decision of the IOC in disqualifying Mr. Baxter from the men’s alpine skiing slalom event thereby stripping him of his bronze medal and withdrawing his diploma. (Baxter v IOC)
The next case is that of Torri Edwards who is a 27 years old female athlete member of the United States Olympic Team (“USOT”) in the sport of athletics. In July 2004, Edwards qualified for the USOT in the 100 meter and 200 meter events. On 24 April 2004, Edwards provided a urine sample for a doping control at an IAAF meet in Martinique. Pursuant to IAAF Rule 37.4, Edwards was notified on 19 May 2004 that her sample showed the presence of nikethamide, a stimulant included in section S1 of the IAAF List of Prohibited Substances and Methods. Edwards did not contest or dispute before the IAAF Doping Review Board, the AAA Panel or the CAS that she had committed an anti-doping rule violation pursuant to IAAF Rule 32.2 (a). Edwards submitted that the facts of the case established that there were “exceptional circumstances” which justified a reduction or elimination of the period of ineligibility resulting from her Anti-doping Rule violation. (Edwards v IAAF).The WADA (S10.5) states that “if an athlete establishes in an individual case that she bears no fault or negligence, the otherwise applicable period of ineligibility shall be eliminated”. Though arbitrators determined Edwards had taken the drug unintentionally, saying in their decision that she had conducted herself with “honesty, integrity and character,” they did not overturn the suspension, because the glucose tablets given to her by her physician contained a caution for athletes advising that the tablets could cause a affirmative doping test.(Amos, 2008)On the basis of the facts and legal aspects, the ad hoc Division of the Court of Arbitration for Sport rendered the following decision that the appeal by Ms Edwards was dismissed. The decision issued by the North American Court of Arbitration for Sport Panel was upheld.(WADA, 2009)
Sithamparanathan and Himsworth believe that such strict liability interpretation by a sporting body’s disciplinary commission (which is effectively a trial, the outcome of which, directly impacts upon the player’s livelihood) could be deemed to have fallen foul of the right to a fair trial as enshrined in Article 6 of the ECHR.From the above case law examples the defence of exceptional circumstances contained in the World Anti Doping Agency code appears to have needlessly watered down the principle of strict liability in doping control in sport
Gardiner S. et al “Sports Law” (2nd edit), 2001, Cavendish, London (ch7)
Lewis A., Taylor J. “Sport: Law and Practice”, 2003, Butterworths, London
Charlish P., & Heywood R., “Anti doping inconsistencies snare American star”, Texas Review of Entertainment and Sports Law (2007) 8 (1) 79-100
Mclaren R., “Exceptional circumstances; Is it strict?”, I.S.L.R. 2005, 2(MAY), 32-37
O‟Leary, J. (ed), “Drugs and Doping in Sport: Socio-Legal Perspectives” (2000), London, Cavendish
Rigozzi A., et al, “Doping and the fundamental rights of athletes: Comments in the wake of the adoption of the World Anti-Doping Code”, I.S.L.R. 2003, 3(AUG), 39-67
Weatherill S., “Anti-Doping Rules and EC Law”, E.C.L.R. 2005, 26(7), 416-421
A.Sithamparanathan, M. Himsworth, (2003) Are our sporting bodies abusing human rights?, SPORT AND THE LAW JOURNAL
Amos, A.”Anti- Doping Policy: Rationale or Rationalisation?”(2008)Faculty of Law,University of Sydney.
Edwards v IAAF CAS 0G 04/03
Baxter v IOC CAS 2002/A/376
IAAF Anti- doping rules
WADA Code 2009(Website) http://www.wada-ama.org/en/