Tylicki v Gibbons [2021] EWHC 3470 (QB)
Introduction
The Claimant and the Defendant were professional flat-racing jockeys. Tylicki alleged that Gibbons’ negligent riding on the all-weather track at Kempton in October 2016 caused his horse to trip and fall leaving him a T4 AIS complete paraplegic. Following a 5-day hearing on liability only, Deputy High Court Judge Karen Walden-Smith found that during a 4-second spell of riding Gibbons had shown a reckless disregard for Tylicki’s safety.
Findings
The Judge found that, as the horses entered the right-hand bend four furlongs into the race, there was sufficient space for Tylicki to bring his horse between Gibbons’ horse and the rails, and that after this Tylicki’s horse continued to move up the inside to a point where his horse’s head was level with Gibbons’ stirrup and boot. She rejected Gibbons’ evidence that he had been unaware of Tylicki’s presence on his inside, finding that it was more likely than not that he did know Tylicki was there. She found that Gibbons had exerted more tension on his right rein than was necessary to maintain his progress round the right-hand bend and stop his mount drifting left, and that he was pulling his mount across to the rail on the right leaving Tylicki no space.
Duty of care
The judge referred to the leading authority of Caldwell v (1) Maguire and (2) Fitzgerald [2001] EWCA Civ 1054 recognising that cases are fact specific and Caldwell differed from the present case at least to the extent that it arose from a National Hunt race (i.e. over jumps) whereas the present case was a flat race on an all-weather track. She listed the following propositions that she derived from a review of the authorities by the trial judge (Holland J) in Caldwell.
- Each contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants. Although the participants may be held to have accepted the risks inherent in the contest that does not mean that no duty of care can arise in the case of one participant to another.
- The duty is to exercise the skill and care that is objectively reasonable given the particular circumstances to avoid injury to fellow contestants.
- The particular circumstances include the object of the contest, the demands made on the contestants, the inherent dangers, the rules, conventions and customs and the standards, skill and judgment reasonably expected from the participants.
- Given the particular circumstances the threshold for liability is high; proof of a breach of duty will not flow from proof of no more than an error of judgment or a momentary lapse of skill when subject to the stresses of the race, as these are no more than incidents inherent in the nature of the sport.
- In practice it may therefore be difficult to prove breach of duty absent proof of conduct that amounts to a reckless disregard for the safety of a fellow contestant.
Comment
These cases are fact specific, but in finding for the Claimant:
- The judge was unimpressed by Gibbons’ failure to disclose in his witness statement that he had lost his racing licence (albeit for unrelated reasons) and noted that this went to his credibility [9].
- The judge was clearly struck by the fact that when Tylicki shouted to Gibbons to warn him of his presence, Gibbons continued to pull his horse to the right [88].
- She found that the conclusion of the Stewards’ Enquiry that the collision was accidental was not determinative or binding upon her and she suggested that in the circumstances the Enquiry should have been adjourned [55].
The judge was at pains to stress that this case should not be taken as setting a precedent within horse-racing or sport more generally. At [95] she said:
“In making that finding, I stress that the threshold of liability for negligence is a high one and has been determined as made out in this case, on its own particular facts. The finding does not set a precedent either within horse-racing or in sport generally.”
This affirms the concluding remarks in an Australian case cited by the Court of Appeal in Caldwell:
“Thoroughbred horse racing is a competitive business, which is played for high stakes. Its participants are large animals ridden by small men at high speed in close proximity. The opportunity for injury is abundant and the choices available to jockeys to avoid or reduce risk are limited.”
