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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Condon v Basi [1985] EWCA Civ 12 (30 April 1985) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1985/12.html Cite as: [1985] 1 WLR 866, [1985] EWCA Civ 12, [1985] 2 All ER 453, [1985] WLR 866 |
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COURT OF APPEAL (CIVIL DIVISION)
On APPEAL FROM THE WARWICK COUNTY COURT
(HIS HONOUR JUDGE WOOTTON)
B e f o r e :
LORD JUSTICE STEPHEN BROWN
and
MR. JUSTICE GLIDEWELL
____________________
JAMES CONDON |
(Plaintiff) Respondent |
|
v. |
||
GURDAVER BASI |
(Defendant) Appellant |
____________________
Messrs. Liggens & Co. of Leamington Spa) appeared on behalf of the (Plaintiff) Respondent.
MR. M. LEE, Q.C. and MR. R. JONES (instructed by Messrs.
Sharpe Pritchard & Co., London agents for Messrs. Westgarths of Coventry) appeared on behalf of the (Defendant) Appellant.
____________________
Crown Copyright ©
"By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent must necessarily depend in each case upon its own circumstances. In this connexion, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist."
Mr. Justice Kitto said at page 3 7:
"... in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organized affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the rules of the game'. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances."
"After 62 minutes of play of the above game, a Whittle Wdrs player received possession of the ball some 15 yards inside Khalsa F.C. half of the field of play. This Whittle player upon realising that he was about to be challenged for the ball by an opponent pushed the ball away. As he did so, the opponent [the defendant] challenged, by sliding in from a distance of about 3 to 4 yards. The slide tackle came late, and was made in a reckless and dangerous manner, by lunging with his boot studs showing about a foot - 18 inches from the ground.
The result of this tackle was that the Whittle Wanderers No 10 player [the plaintiff] sustained a broken right leg.
In my opinion, the tackle constituted serious foul play and I sent [the defendant] from the field of play."
Then he said where he was positioned.
"[The tackle] was made in a reckless and dangerous manner not with malicious intent towards the plaintiff but in an 'excitable manner without thought of the consequences. "'
The learned judge's final conclusion is to be found in paragraph 13 of his judgment, where he said:
"It is not for me in this Court to attempt to define exhaustively the duty of care between players in a soccer football game. Nor, in my judgment, is there any need because there was here such an obvious breach of the Defendant's duty of care towards the Plaintiff. He was clearly guilty, as I find the facts, of serious and dangerous foul play which showed a reckless disregard of the Plaintiff's safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game."
Accordingly I would dismiss the appeal.
LORD JUSTICE STEPHEN BROWN: I agree.
MR. JUSTICE GLIDEWELL: I also agree.
(Order: Appeal dismissed with costs not to be enforced without the leave of the court).