Sporting risks: The duty of care owed by Jockeys

Introduction

Jockeys are a rare breed. There are circa 450 jockeys currently licenced to race in Britain along with around 300 amateur riders. Jockeys often start their careers in their early teens, work 6 days per week on minimal wages (often starting their day as early as 5am) and risk serious injury. The reward arrives when they hit the “big time” and only then do they start reaping the benefits of years and years of hard work.

There is no doubt that when Frederik Tylicki (“Tylicki”) and Graham Gibbons (“Gibbons”) entered the starting gates in the 3.20 at Kempton on 31 October 2016, they were aware of the risks. Those risks would have been well managed. However, as with all high risk sports, things can go wrong.

When an accident does happen, is it simply an accident? Is it due to lapse of judgment or skill? Perhaps it is caused by another’s breach of duty? Maybe loss of concentration? The recent High Court decision of Tylicki v Gibbons [2021] EWHC 3470 provides clarity as to the circumstances which will be looked at when considering a case for alleged breach of duty.

Facts

Tylicki pursued a claim for catastrophic personal injures against Gibbons resulting from their race on 31 October 2016. Tylicki alleged that Gibbons had acted negligently by directing his horse towards the rail, when it was not safe to do so, causing the accident which resulted in a four horse collision and left him with T4 AIS complete paraplegia.

The case

Gibbons accepted there is a duty of care owed by jockeys to each other. The central issue in the case was to consider the standard of care to be taken by a jockey racing in a competitive environment and whether Gibbons’ riding fell below that standard of care in such circumstances.

Tylicki’s position was that Gibbons’ riding fell below the expected standard and that his life changing injuries were a direct result of actionable negligence. Gibbons denied any breach and maintained this was merely a racing incident and that the court should conclude that there was no significant shortcoming on his part.

The decision

Both parties to the dispute acknowledged that the leading authority in the case was Peter Harvey Caldwell v (1) Adrian Maguire and (2) Mick Fitzgerald [2001] EWCA Civ 1054. That case laid down a marker which said that each sporting case must be decided upon the specific facts at the time.  With that in mind, the assessment of breach of duty in sporting cases (and indeed in the case of Tylicki v Gibbons) is an extremely tricky issue for the court to decide.

The court affirmed the threshold for establishing liability in these cases is high and “mere error of judgment or lapse in skill is not sufficient, taken in the context of this highly competitive and inherently risky sport.”

They concluded Gibbons’ actions were not mere lapses or errors of judgment. His actions leading to the collision continued over a number of seconds. In some circumstances that may be considered a short period of time. However this was a sufficient period of time for skilled jockeys to make a decision where often they are required to make split second decisions during the heat of a race.

The court held that whilst horse racing has its own inherent risks and a fall and injury is almost an inevitable part of a jockey’s career, the standard of riding by Gibbons fell below the standard of duty of care required. Put simply, the actions of Gibbons were in reckless disregard for Tylicki’s safety and as such, he was held liable.

The court concluded that this case was fact specific and did not set any precedent for the sport of horseracing or in sport generally.  

Comment

When considering liability for negligence in such cases, the courts will face the challenge of balancing the safety of competitors against the preservation of competitiveness within the sport.

The Judgment in this case does not set new legal precedent. However, it is helpful in highlighting the courts accept and acknowledge that in the heat of intense competition there may be momentary lapses of skill or judgment which may result in another competitor becoming injured. These risks are accepted as part of the sport and are not sufficient to attract a legal liability.

The courts will draw a line where it considers actions are seen to have a reckless disregard for the safety of other competitors.  That is a high threshold for any claimant to overcome.

This latest Judgment will be useful to competitors, sporting organisations, regulators and insurers to understand how courts are currently assessing liability in such claims.