Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 30
of Appeal held that there was an implied term to
take reasonable care but the duty arising under it
did not involve an obligation to protect against a
danger incidental to the entertainment which any
reasonable spectator foresaw and of which he took
the risk.
an employee injured at a football match against
her employer and a football club. The claimant, a
police o昀케cer, was on duty at a football match. She
was standing on the track next to the pitch with her
back to the game, looking up at the crowd when a
player accidentally collided with her. The Court
found that the risk of injury was foreseeable but
due to the absence of previous incidents and the
unusual combination of circumstances, the risk was
so small so as to not warrant any precautions being
taken by either defendant. She failed against both
defendants.
A more recent ice hockey case in Northern Ireland
followed similar reasoning to Murray. In Browning
v Odyssey Trust Co Ltd and Belfast Giants 2008 Ltd
Gillen J found that although Murray was decided a
long time ago, the principles were still applicable.
In particular, a defendant organiser, as occupier,
generally had no duty to prevent exposure to risks
which were inherent in activities which were freely
undertaken or inherent in the sport itself, such as
balls which were regularly hit with force into the
spectators.
In Lewis v Wandsworth County Council the
claimant was walking along a footpath in Battersea
Park, next to where a game of cricket was being
played, when she was hit by a cricket ball and
injured. Although she succeeded at 昀椀rst instance,
she lost on appeal. Both the lower and appeal court
were referred to Bolton v Stone, the seminal case
about foreseeability. Bolton involved a cricket ball
being hit out of a cricket ground and going on to
hit a pedestrian on a nearby road. The evidence
was that balls being hit as far as this to go into the
road were very unusual. The House of Lords said
that reasonable foreseeability of an event was not
enough to found liability, the further result that
injury is likely to follow would also be such that a
reasonable person would contemplate. Instead, the
court had to consider the chances of an accident
happening, the potential seriousness of an accident
and the measures that could be taken to minimise
the risk. The remote possibility was not enough and
the existence of some risk was an ordinary incident
of life, even when all due care had been taken. In
Lewis Mr Justice Stewart said that the case was
very di昀昀erent to Bolton because the risk of balls
being hit towards the path was so evident that no
warning was needed. Statistics were important as
they showed an absence of previous accidents. In the
circumstances allowing pedestrians to walk along
the path when a cricket match was taking place was
reasonably safe, the prospects of an accident (albeit
nasty if it occurred) being remote. The remoteness
is reinforced by Mr Birtles’ evidence as to statistics.
Further and in any event the alleged breach by
failure to warn the Claimant in the terms suggested
does not withstand proper analysis.
When A Player Is Sued
These cases involved the consideration of the
situation where the claimant was a paying spectator
and the defendant was the organiser of the event.
However, what if the defendant is the sporting
competitor or player? In Woolridge v Sumner and
another a photographer who was at the edge of an
arena at a horse show to take photographs sued
the owner of a horse that ran him down. Although
he won at 昀椀rst instance against the owner, as
vicariously liable for the rider, he lost against the
promoters of the show. On appeal however, the
Court of Appeal came to a di昀昀erent conclusion. In
assessing actionable blame there was a di昀昀erence
between an injury – for example – caused by a
tennis ball hit or a racket accidentally thrown in the
course of play into spectators at Wimbledon and a
ball hit or a racket thrown into the stands in temper
or annoyance when play was not in progress. Lord
Justice Sellers said that provided the competition or
game is being performed within the rules and the
requirement of the sport and by a person of adequate
skill and competence the spectator does not expect
his safety to be regarded by the participant. Lord
Justice Diplock summarised his view as: A person
attending a game or competition takes the risk of
any damage caused to him by any act of a participant
done in the course of and for the purposes of the
game or competition notwithstanding that such act
may involve an error of judgment or a lapse of skill,
unless the participant’s conduct is such as to evince a
reckless disregard of the spectator’s safety.
Gol昀椀ng claims
Returning to gol昀椀ng injuries, this is one area where
claimants have been more successful, although most
of such cases are where other players have been
injured instead of spectators. In Horton v Jackson
one golfer was liable to another golfer for an eye
injury. The liable golfer unsuccessfully tried to
appeal the 昀椀nding that the golf club was not liable
as well. The golf club was not liable on the basis that
in 800,000 rounds of golf there had only been two
accidents and screens and extra signs would have
made no di昀昀erence.
Liability For Those Other Than Paying Spectators
What about the situation where the injured
claimant is not a paying spectator but working
at a game when they are injured? In Woolridge
above, the photographer was not an equine fan but
present in his working capacity. This did not make
any di昀昀erence to the outcome. In the Scottish case
of Gillon v Chief Constable of Strathclyde Police
the Outer House considered a claim brought by
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