2

Q.B.

QUEEN'S BENCH DIVISION.

43

by the Act and regulations. Master Eitchie's order did not

require him to do so.
I cannot accept Mr. Lipfriend's argument that prima facie an
assisted person is obliged to pay the whole costs, and that it is up
to him, if he sees fit, to invoke the special protection given by the
Act to an assisted person. Indeed, there was no time in the
course of these proceedings when he could have required such a
determination. The special protection is the responsibility of the
court, whether or not the assisted person, or previously assisted
person, invokes it. It is only by virtue of the special provisions
of regulation 18 (5) that it ever falls upon the assisted person to
invoke that protection. Eegulation 18 (5) is not applicable here.
Accordingly, though perhaps for rather different reasons from
those given by the senior taxing master, I hold that his disallowance of the items which he disallowed on this bill of costs was
right.
I should add that it will be clear from what I have already
said that in my view the regulations, and in particular regulation 18 (1) and (5), may merit reconsideration, especially with
regard to the time and manner of the determination of a previously
assisted person's costs where, after the discharge of his legal aid
certificate, the action is dismissed for want of prosecution. If I
am right in this judgment, the regulations may involve hardship
on the non-assisted party. If I should be wrong in this judgment,
the formerly assisted person, with no available legal advice, may
be deprived of the protection which I think the Act intended that
he should have.
Summons dismissed with costs.
Leave to appeal.
Solicitors: Blount,
Society.

Petre & Co.; Sir Thomas Lund,

1963
CopB

DAIRIES
(LONDON)

'
Megaw^J.

Law

WOOLDEIDGE v. SUMNEE AND ANOTHER.

[1959 W. No. 215.]

0. A.

\ 9>
10, 11, 14;
NegligenceSportCompetitor and spectatorStandard of careHorse ^une *
showHeavyweight hunter competitionGalloping horse driven geuer9i
too fast round corner of arenaDeviation from arena into shrubs Dai1Cn"?rti
bordering arenaAttempt to bring horse back into arenaInjury L.JJ.
to non-paying spectator standing at edge of arenaWhether competitor liable.
m

44

QUEEN'S BENCH DIVISION.

C. A.
,q fi

WOOLDRIDGB
v.
SUMNER.

[1963]

Volenti Non Fit InjuriaSportCompetitor

and spectatorHorse
showGalloping horse driven too fast round corner of arena
Injury to non-paying spectator standing at edge of arenaWhether
doctrine applicable.
An experienced horseman, while taking part in a competition for
heavyweight hunters at a horse show, galloped his horse so fast
round a corner of the arena that it took a wide sweep to the edge
of the course. After completing the turn the horseman got the
horse almost straight onto its course, but the horse then became
temporarily out of control and plunged some 20 or 30 yards down
a line of shrubs bordering the arena to a point where the plaintiff,
a photographer, was standing by a bench in line with the shrubs.
The plaintiff, who had no experience of horses, took fright at the
oncoming horse, and, in attempting to save a lady sitting on the
bench from danger, stepped or fell back into the path of the horse
and was knocked down and seriously injured. In an action for
damages for personal injuries, the trial judge found that the horseman had ridden his horse too fast round the corner of the arena
and that that, and his endeavours to bring his horse back into the
arena when he .knew or ought to have known that it would be
dangerous to persons in the place where the plaintiff was, constituted
negligence. He awarded the plaintiff damages against the owner
of the horse. On appeal, the defendant relied, inter alia, on the
maxim " volenti non fit injuria " :
Held, (1) that the judge had drawn the wrong inferences from
the facts he found as (a) the excessive speed at which the horseman
rode round the arena was merely an error of judgment which did
not constitute negligence and, in any event, its effect had ceased
before the accident happened; and (b) the horseman's endeavours
to bring the horse back into the arena did not constitute negligence,
and, accordingly, the plaintiff's action failed (post, pp. 99, 103,
109, 115).
Hall v. Brooklands Auto Bacing Club [1933] 1 K.B. 205; 48
T.L.R. 546, C.A.; Bolton v. Stone [1951] A.C. 850; [1951] 1 T.L.R.
977; [1951] 1 All E.R. 1078, H.L., and Murray v. Harringay
Arena Ltd. [1951] 2 K.B. 529; [1951] 2 All E.R. 320n., C.A.
applied.
(2) That the relationship of spectator and competitor or player
was a special one as the standard of conduct of the participant, as
accepted and expected by the spectator, was that which the sport
permitted or involved. A person attending a game or competition
took 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 might involve an error
of judgment or lapse of skill, unless the participant's conduct was
such as to evince a reckless disregard of the spectator's safety, or
was deliberately intended to injure someone whose presence was
known so that it was a departure from the standards which might
reasonably be expected in anyone pursuing the competition or game
(post, pp. 101, 112).
O'Dowd v. Frazer-Nash [1951] W.N. 173; Cleghorn v. Oldham

2 Q.B.

QUEEN'S BENCH DIVISION.

45

(1927) 43 T.L.E. 465; Hay (or Bourhill) v. Young [1943] A.C. 92;
c. A.
[1942] 2 All E.R. 396, H.L., and Hall v. Brooklands Auto Racing
Club (supra) considered.
Per Sellers and Diplock L . J J . A competitor or player in the WOOLDBIDGB
normal case of competition or game cannot rely on the maxim
o.
volenti non fit injuria in an action by a spectator because in the
SUMNBR.
absence of negligence the maxim does not apply (post, pp. 100, 114).
Kelly v. Farrans Ltd. [1954] N.I. 41, C.A. ; Letang v. Ottawa
Electric Railway Co. [1926] A.C. 725; 42 T.L.R. 596, H.L. ; Baker
v. T. E. Hopkins & Son [1959] 1 W.L.R. 966; sub nom. Ward v.
Hopkins (T. E.) & Son [1959] 3 All E.R. 225, C.A. considered.
Decision of Barry J. reversed.
APPEAL from Barry J .
On J u l y 24, 1959, the plaintiff, E d m u n d Lestocq Wooldridge,
a photographer, attended the National Horse Show organised by
the second defendants, the British Horse Society, at the White
City Stadium, London, to take photographs, pursuant to an agreem e n t between Town and Country Productions L t d . , by whom he
was employed, and the British Horse Society. During the course
of a competition for heavyweight hunters he was knocked down
and severely injured by a horse, " Work of A r t , " owned by the
first defendant, H u g h Sumner, and ridden by Bonald Holladay,
an experienced horseman.
The competition took place in an arena, a rectangular area of
grass over 100 yards long and over 70 yards wide. At one end was
the collecting ring where the competitors entered, and at the other
a bandstand. The arena was surrounded by an oval running track,
outside which was a greyhound racing track. Beyond t h a t track
were the stands for the paying spectators. The plaintiff was not a
paying spectator. The perimeter of the arena was denned, at
least in part, on the grandstand side by tubs with plants or shrubs
in them, placed on the grass two or three feet from the edge of
the running track which was bounded by a kerb. There were
several tubs in line before a bench of seats was reached which lay in
line with and between two tubs. For the heavyweight hunter
competition in which Mr. Holladay on " Work of Art " was competing, the judges required the horses to walk, trot, canter and
gallop. The horses paraded and displayed themselves in a clockwise direction and the size of the arena was somewhat limited for
the galloping test. There were a number of jumps on the arena
and the presence of one of them, No. 10, m e a n t t h a t the horses,
having rounded the bandstand end and having turned right into the
straight in front of the bandstand, had to pass through whatever

46

QUEEN'S BENCH DIVISION.

C. A.
19 g 2

SUMNEB.

[1963]

gap there was between No. 10 jump and the perimeter defined by
the tubs.
Three first-class horses were competing in the heavyweight
hunter competition. The most outstanding quality of " Work of
Art " was his gallop and Mr. Holladay was anxious to display his
gallop to the full when he came down the grandstand straight, and
for that purpose he deliberately kept close in to the corner of the
bandstand.
I t appeared from the evidence that the plaintiff, who was
unfamiliar with and apparently wholly uninterested in horses,
was told by the steward of the course, Brigadier Dunn, who was
very experienced, just before the galloping of the horses, to take
the camera and himself " over the running track " as he could
not gallop the horses while the plaintiff was on the track, but the
plaintiff only went back as far as a bench seat between two tubs.
He placed his camera on its tripod behind a tub or between that
tub and the end of a bench furthest from the bandstand end of
the arena and stood by the end of the seat. On the bench nearest
to him Miss Smallwood, a director of the company which
employed him, was sitting, and beyond her, in the direction of
the horses' approach, were a corporal-major and other soldiers
concerned with the arrangement of jumps and other similar
matters. None of those persons was injured but the plaintiff,
who had been taking little interest in the proceedings, took fright
at the approach of the galloping " Work of Art " which came
plunging some 20 or 30 yards down the line of shrubs towards
the position where the plaintiff was standing. The plaintiff,
attempting unsuccessfully to pull Miss Smallwood off the bench
out of the line of the horse, stepped or fell back into the path of
the horse which passed three or four feet behind the bench by
which he was standing. He was knocked down by the horse
and severely injured. The horse recovered and was eventually
brought back into the arena and won the competition.
The plaintiff brought an action for damages for personal
injuries, claiming that his injuries were caused by the negligence
of the first defendant by his servant or agent, Holladay, in the
riding and management of the horse, and the negligence of
the second defendants under the Occupiers' Liability Act, 1957,
or the negligence of one or other of the defendants. Both
defendants denied liability, alleging (1) that the plaintiff had
voluntarily accepted the risk, and (2) contributory negligence on
his part. Barry J. held that the conduct of the horseman had
been negligent, in that he had ridden his horse too fast round

2 Q.B.

47

QUEEN'S BENCH DIVISION.

the corner of the arena, and that he had endeavoured to bring it

back on to the course and so to carry it along the line of shrubs and
ultimately into the plaintiff, when he knew that people were in
the position in which the plaintiff was, and knew or ought to have
known that by endeavouring to keep the horse in that way and
to retrieve the situation he was highly likely to endanger those
people who were sitting or standing along the line of benches or
shrubs. He entered judgment for the plaintiff against the first
defendant, awarding him 6,000 damages, but dismissed his claim
against the second defendants.
Both defendants appealed, the second defendants being
concerned only on the question of costs.
R. Marven Everett Q.G. and Michael Turner for the first
defendant. No more important case for players or competitors
has engaged the attention of the court for a very long time because
there is no reported case in which a competitor or player has been
held liable for an accident which occurred in circumstances such
as these. The questions are (1) What is the extent of the duty
on a competitor or player engaged in a competition or game in
relation to the safety of persons present at the performance?
(2) Did the rider of " Work of Art " fail to discharge that duty
as far as the plaintiff was concerned?
As to (1), it is submitted that the duty of care which a competitor or player owes to other competitors, to umpires or to
stewards or comparable persons present at a performance is very
small. His duty vis-a-vis a photographer can be no higher. The
competitor must have regard to the rules of the game or competition and not act recklessly, but unless it can be shown that
he acted in reckless disregard of the safety of persons he knows
to be present he cannot be held liable for an accident which occurs
during the course of the game or competition which causes injury
to such a person. There is little authority for that proposition but
it is submitted that that is what the law should be.
Some
assistance may be derived from Payne and Payne v. Maple Leaf
Gardens Ltd.1 That was a Canadian case where the plaintiff, a
spectator at an ice hockey match who was struck by a stick,
recovered damages against two players, but the basis of that
decision was that there had been improper conduct on the part
of the players who had engaged in a fight over the stick. Most
of the reported cases in which spectators have been injured while
1

[1949] 1 D.L.E. 369.

C. A.
y^
_
SUMNER.

48

[1963]

QUEEN'S, BENCH DIVISION.

C. A.
jggg
~
WOOLDRIDGE
v%

SOMNER.

watching a game or competition concern the liability of the

occupier of the premises and not that of the players: Hall v.
Brooklands Auto Racinq Club 2 ; Callaqhan v. Killarney Race Go.3
,

TT

"

'

, ,\

. , "

and Murray v. Hamngay Arena Ltd.* Some assistance may be

derived from Piddington v. Hastings,5 referred to by Scrutton L.J.
in Hall v. Brooklands Auto Racing Club," because in that case,
where a polo pony ran through a hedge and injured a spectator,
judgment was entered for the owners of Eanelagh. In O'Dowd
v. Frazer-Nash 7 the court exonerated from blame a driver in a
road race who crashed at speed owing to a failure of his brakes
and killed the plaintiff's husband. [Eeference was also made to
Winfield on Torts, 6th ed. (1954), pp. 32-33, and Salmond on
Torts, 13th ed. (1961), p. 45.]
In the present case, the judge's approach was more appropriate to a running down case than to a competition involving
live animals. To say that the rider was negligent merely because
he rode the horse too quickly round the bend of the arena puts
a burden on the competitor which the law does not impose. Had
the horse remained on the intended route there would have been
no risk at all of its colliding with the plaintiff. The risk existed
because a horse is an unpredictable animal and in this case it
deviated from the prescribed route despite the rider's intention
to keep it within the arena. In circumstances such as these the
spectator voluntarily assumes such risks as there may be in the
competition. It is not for the competitor taking part to have to
take care for persons standing about the course. He is entitled
to expect that he can concentrate on winning the competition and
that judges, umpires, photographers and other persons present
will look out for themselves voluntarily assuming such risks as
are inherent in the particular sport; thus the doctrine of voluntary
assumption of risk is relevant in considering what the reasonable
competitor should foresee and guard against. The judge did not
sufficiently distinguish between the duty of persons actually
engaged in a sport and of persons not so engaged, when the duty
may be different.
As to (2), even if the judge's finding that the rider rode the
horse too fast round the bend be accepted, that was not sufficient
to render the rider blameworthy. The horse was at all times
2
[1933] 1 K.B. 205; 48 T.L.E.
546, C.A.
3
(1956) 90 Ir.L.T. 134.
* [1951] 2 K.B. 529; [1951] 2 All
B.E. 320n., C.A.

= The Times, March 12, 1932.

[1933] 1 K.B. 205, 218.
7
[1951] W.N. 173.

Q.B.

Q U E E N ' S BENCH DIVISION.

49

under sufficient control and it was ridden quite deliberately at a

fast speed for reasons given by the rider and other witnesses.
There was no evidence to support a finding of negligence and the
J

i.1.

-J!

J-

rm.

]udge drew the wrong inference m so finding. There was no

finding of reckless misconduct. The highest it was put by the
witness on whose evidence the judge chiefly relied was that the
rider was guilty of an error of judgment. That is not sufficient
to establish negligence.
A. E. James Q.C. and J. E. Arturo-Morris for the plaintiff.
The judge came to a correct conclusion on the evidence. The
duty of care owed by a competitor to a person present at a performance is the ordinary duty owed to a person who, in his
reasonable contemplation, might suffer from his acts or omissions.
That duty arises unless there is an express contract restricting
it or if the law implies a contract which negatives the existence
of the duty under the principle of volenti non fit injuria. Here
there was no express contract limiting the duty, and the plea of
volenti fails because there was no evidence on which the court
could find that the plaintiff voluntarily undertook the risk which
materialised with full knowledge of it. That being so, the
ordinary duty of care applied. Admittedly, there are cases where
a person present at a performance must be expected to take
some risk, e.g., where a horse slips or trips or runs away without
negligence on the part of the rider or in circumstances such as
arose in Slater v. Claycross Co. Ltd.,8 but subject to such
exceptions the ordinary rules of law apply to competitors taking
part in competitions or games: Cleghorn v. Oldham.9 Here the
fact that the rider was going so fast as not to be able to bring the
horse properly round the bend was sufficient to constitute a
breach of his duty towards the plaintiff who was entitled to be
in the position he was. His experience or inexperience of horses
and their habits was immaterial.
10
[SELLERS L.J. The Claycross case
is comparable to Payne
11
and Payne v. Maple Leaf Gardens Ltd. but neither case was the
same as this. There may be a different standard of care where
an injury takes place during the competition or game. Then
there is the question of volenti.]
In the case of a person actually competing in a competition
or game, there is no authority which detracts from the ordinary
duty of care owed to one's neighbour as laid down in Donoghue
[1956] 2 Q.B. 264; [1956] 3
W . L . E . 232; [1956] 2 All E.E. 625,
C.A.

(1927) 43 T.L.E. 465.

[1956] 2 Q.B. 264.
" [1949] 1 D.L.K. 369.

C. A.
jggg
WOOLDEIDGE
v

SUMNER.

50

QUEEN'S BENCH DIVISION.

C. A.
1QQ2
_
SUMNER.

[1963]

v. Stevenson 12 unless volenti excludes it. Payne and Payne v.

Maple Leaf Gardens Ltd.13 lays down no general principle. It is
not authority for the proposition that a competitor is only liable
if he acts in a reckless disregard of a person's safety. In this
c a se those persons who were in line with the shrubs and benches
undertook the normal risks of horses galloping in the accustomed
way on the track beyond which they had never been known to go,
but the plaintiff could not be expected to foresee abnormal conduct and to take a risk arising from an improbable accident
resulting therefrom. Different considerations arise here from
those which arose in Murray v. Harringay Arena Ltd.14, and Hall
v. Brooklands Auto Racing Club.15
On the question of volenti, unless the defendant can show,
which he cannot here, that the plaintiff undertook the risk which
materialised, with full knowledge of it, he cannot rely on volenti:
Kelly v. Farran8 Ltd.1" See also Dann v. Hamilton.17
Gar and
General Insurance Corporation Ltd. v. Seymour l s followed Dann
v. Hamilton " and carries the case no further. Here, on the
facts, the act which resulted in danger came after the plaintiff
took up his position in line with the shrubs. He did not step
out into the arena but remained in a static position in a place
bordering the arena to which he had been directed to go. In those
circumstances the horse should have been kept out of his way.
[DIPLOCK L.J. The plaintiff was not in a static position. If
he had sat still on the bench there would have been no accident.
Why must the rider foresee that a person will be allowed into
the arena who will not know how to behave when in close
proximity to a horse?]
The evidence established that an experienced rider would have
had in his contemplation persons sitting on benches in the position
the plaintiff was. It does not lie in the defendant's mouth to say
that those persons should not, out of an instinct of self-preservation or in order to protect another person, act in the way the
plaintiff did.
This court should not accept evidence rejected by the judge or
reject evidence which he accepted. If he rejected the evidence of
the rider, the one person whose evidence one would have expected
him to accept, this court should be loath to interfere. A judge's
12 [1932] A.C. 562; 48 T.L.E. 494,
H.L.
13
[1949] 1 D.L.B. 369.
" [1951] 2 K.B. 529.
is [1933] 1 K.B. 205.

i [1954] N . I . 41, C.A.

" [1939] 1 K.B. 509; 55 T.L.E.
297; [1939] 1 All B.E. 59.
is (1956) 2 D.L.E. (2d) 369.
i [1939] 1 K.B. 509.

Q.B.

5 1

QUEEN'S BENCH DIVISION.

finding of fact cannot be overturned unless it is basically unsound:

Watt (or Thomas) v. Thamas.20 This is not a case which depends
on inferences or reasoning arising from the facts. The judge's
decision is founded on the basic facts he found. He did not
misdirect himself either as to the facts or as to the duty involved.
A competitor can obviously not be held to be negligent for every
casual mistake he makes, but if his conduct is such as is likely to
cause danger it is negligent. If the facts found involve an element
of negligence the plaintiff is entitled to succeed. Here the judge
was justified in finding the rider negligent and the judgment
should be upheld.
James Gomyn Q.C. and Christopher French for the second
defendants.
B. Marven Everett Q.C. in reply referred to Bolton v. Stone 21
and Latimer v. A. E. C. Ltd."2 As to the functions of an
appellate court in relation to findings of fact by a judge, see
Bervmax v. Austin Motor Go. Ltd.23 where those functions were
considered and re-stated by the House of Lords. In the Benmax
case 23 Watt (or Thomas) v. Thomas 24 was regarded as a very
special case. There is a distinction between a finding of a specific
fact and an inference drawn from facts specifically found. This
is a case where the judge has drawn a wrong inference from the
specific facts and this court is entitled to interfere. The judge
has not rejected evidence because he found it dishonest. He has
given no reasons for accepting or rejecting the evidence of any
particular witness. In such a case this court is in as good a
position as the judge was to assess the evidence: see the Benmax
case,25 per Viscount Simonds 26 and Lord Eeid. 27 The court
is invited to look at the evidence and make up its mind whether
there was in fact evidence to support the judge's finding of
negligence. There was no such evidence and the appeal should
be allowed.
GUT. adv. vult.
June 4. SELLERS L.J. The accident which gave rise to the
claim in this case occurred on July 24, 1959, in the course of the
National Horse Show of that year held at the White City Stadium,
20 [1947] A.C. 484; 63 T.L.B. 314;
[1947] 1 All E . E . 582, H . L . ( S c ) .
2i [1951] A.C. 850; [1951] 1 T.L.B.
977; [1951] 1 All E . B . 1078, H . L .
22 [1953] A.C. 643; [1953] 3
W . L . E . 259; [1953] 2 All B.E. 449,
H.L.

23 [1955] A.C. 370; [1955] 2

W.L.E. 418; [1955] 1 All E . B . 326,
H.L.
24 [ 1 9 4 7 ] A-C _ 434.
25 ^955] A C . 370.
26 ibid. 373.
27 ibid. 376.

C. A.
19 g 2

SCTMNEB.

52

QUEEN'S BENCH DIVISION.

C. A.
1962

[1963]

London, and a distinctive feature of the case is t h a t the judgment

^ ^ Wame a competitor of great experience and skill who
was riding a heavy hunter of the highest quality and who was at
' the time exercising every endeavour to win the event, as in fact
e_
SUMNER.
he did, and t h a t the second defendants, who as the promoters of
sellers L.J. t n e show were required to take reasonable care to provide a suitable arena for the event, have been exonerated from all blame by
the judgment of Barry J . and no appeal has been raised against
them. Where competitors or players break off from the event or
game or divert clearly from the rules there may well be room for
liability on t h e m as some of the cases show, but the question
arises whether liability should be placed on a competitor or player
who is merely seeking to excel and to win, it being the very
purpose on which he is engaged and the very endeavour which
people have assembled to witness and applaud.
nas n e

Another feature of the case is t h a t it provides a striking

illustration and reminder of how uncertain can be the raw
material of a court's inquiry, the evidence. The event at the
time of the accident was being closely watched by the judges of
the competition, expert and experienced commentators and m a n y
interested spectators, informed in the ways of horses and in horsemanship, and yet from this most unusually qualified body of
observers it has been difficult to get a wholly satisfactory account
of what occurred, especially in the detail of the last and most
vital stages. The competitor, Mr. Holladay, who was riding the
first defendant's horse, " Work of A r t , " was best placed to say
what he was seeking to do and what in fact the horse did and why,
but Mr. Holladay was thrown heavily in the accident and was for a
short time unconscious (although he returned to the arena to ride
again and triumph on the same horse later in the evening) and on
this ground it would seem t h a t the judge did not accept his
evidence although it was not without some support from other
witnesses.
Mr. Holladay's evidence with the support it receives from at
least two separate witnesses seems to me so probable, particularly
in its explanation of the conduct of his horse, t h a t , if I were
entirely free and unfettered to decide, it is the version which
would, I think, have commended itself to m e . B u t m a n y
witnesses were called and the judge preferred those who gave
a different version, not wholly consistent, and inadequate I
think in material detail, but the witnesses relied on numerically greater t h a n those who supported the first defendant.
I n all the circumstances but with some hesitancy I feel t h a t I

2 Q.B.

53

QUEEN'S BENCH DIVISION.

should follow broadly the facts relied on by the judge. I say

" broadly " because it seems to me necessary to introduce more
specifically into the facts on which liability has to be assessed the
approximate distance the horse had travelled " in the straight "
before the accident occurred.
There is one other feature which is unfortunate. The precise
state of the arena could not be ascertained with that degree of
accuracy as to detail which, as it chanced on the evidence relied
on by the judge, became particularly important.
[His Lordship stated the facts and continued: ] Undoubtedly
something affected the horse as it came along at a gallop, and the
presence of anything ahead, particularly if there were any movement, may well have played its part, as more than one witness
thought.
The competing horsesand there were several of themwere
apparently galloping at the same time, spaced at intervals, down
the back straight, round the bandstand end, and round to the
right for the grandstand straight. It may be that Mr. Holladay's
horse overtook one of the others before he turned right for the
straight run. It would seem to have been going faster than the
others. That it should go fast was the rider's intention. I t was
his chance to excel. As he went round the bandstand end one
witness, experienced in horsemanship and a commentator on these
events, heard Mr. Holladay say " Whoa; steady " to his horse,
but the witness expressed the view that it was going too fast
that is, I think, going too fast to take the corner conveniently.
But the horse did not run out of the grass arena on to the track
at the corner. It clearly straightened up. If it had run out it
would no doubt have counted against the horse, certainly if it had
been out of control, for there was a rule to that effect, but there
would have been no accident to the plaintiff or anyone else.
In my opinion " too fast " in these circumstances would only
be an error of judgment of a highly competent rider all out to
succeed. It is no doubt a misfortune for a skilled batsman to be
bowled or caught in a supreme effort to hit a six. It is also a
misfortune if, on the other hand, he succeeds in hitting a six and
the ball hits someone over the boundary. The three-quarter who
dives at speed over the line for a try at Twickenham, or on
occasions at Wembley, or the opponent who dives into a tackle
to prevent a try may and sometimes does roll over and come into
heavy contact with the surrounding barrier sometimes to his own
hurt and to the possible injury of an adjacent spectator. No
court or jury would, I think, condemn such endeavour as negligent.
2 Q.B. 1963.

C. A.
ig g 2
0-

SUMNER.

sellers L.J.

54

QUEEN'S BENCH DIVISION.

c

- Aig@2

~~
_
SOMNEB.

sellers L.J.

[1963]

(See, for instance, the verdict of the jury in favour of the drivers
and owners of two cars that collided causing one to deviate and
injure the plaintiff and the observations of the court in Hall v.
BrooMands Auto Racing Club.1) The riding of Mr. Holladay up
t 0 this point I would hold to fall into a like category. It was in
the best tradition of sporting competitive endeavour.
The judge has found that the horse came " into the line of
" tubs." [His Lordship referred to the evidence on this point
and to the way in which the accident occurred and continued: ]
On the judge's finding, as I read the judgment, Mr. Holladay
was only a few feet off course, that is to the left, when he was
straightened up, and that would seem to be all that followed
from going '' too fast.''
The accident happened fairly well up to the centre of the
arena and there were, it would seem, some 25 or more yards
travelled in the straight. Neither the evidence nor the judgment,
I would say with respect, fills in this distance travelled in any
acceptable way. If Mr. Holladay's version is rejected there is
really nothing to take its place. One may say roughly what the
horse did but not why he did it. The witnesses who thought the
momentum had taken the horse out on to the track at the first
tub were not and could not, I think, be accepted. The better and
accepted view was that the horse was in line with the tubs, that
is straight, and both Mr. Holladay and the horse, if all had been
well (speed no longer mattered), would have avoided the tubs on
one side or the other and the right-hand or course side was the
desired course for the competitor and whether his evidence can be
accepted or not it would seem that his instinct would have been
to take the horse to the right. Something caused the horse to
take the course it did and until it had advanced over two or three
tubs and covered the intervening space there was no danger to
the plaintiff or those in his vicinity. Even then if the plaintiff
had been more conversant with horses and kept still where he
was, the probabilities are that the horse would have avoided him.
I think the confused and uncertain evidence of the last 25
yards reveals on the probabilities the horse temporarily in control
and not the rider and is insufficient to establish that Mr. Holladay
deliberately altered the course of the horse from running out on
to the track to the right into the position where he knew or ought
to have known the plaintiff and others were, which is the basis of
the finding of liability by the judge. It is the kind of mishapi [1933] 1 K.B. 205; 48 T.L.E. 546, C.A.

2 Q.B.

55

QUEEN'S BENCH DIVISION.

which might happen without negligence in the hunting field or on

a racecourse and even with mechanical vehicles with no mind of
their own when driven in racing competitions. Those who
promote these events cannot be unmindful of the unpredictable
conduct of horses however well trained and however skilfully
ridden, especially in the excitement of competition or when confronted with some unexpected movement on or about their course.
This Horse Show was no doubt on a general view admirably
managed and carefully planned. It appears that the arena squad
had usually occupied the bench where the Corporal-Major was
sitting but they were used to horses and were familiar with all
that was taking place. The plaintiff was not interested in this
event and was not watchful or mindful of what was taking place
and it would seem in his inexperience he ought to have been in
the position to which Brigadier Dunn intended him to go while
the galloping was taking place.
In all the circumstances, in so far as the judgment found that
Mr. Holladay was going " too fast " I would not hold this to be
negligence, and in any case its effect had ceased when the horse
was straightened up, as it was, some 25 yards before the accident;
and with regard to the second finding on which the judgment was
based, I am unable to find fault in Mr. Holladay amounting to
negligence. It was, I think, the horse's course and not his which
took them along the line of tubs instead of to the right of that
line and for this I do not think he can be blamed.
There is but little authority with regard to the liability of
competitors or players for injury to others. If they step out of
or break off from the game or event temporarily and have a fight
and injure someone in the neighbourhood they may be liable
(Payne and Payne v. Maple Leaf Gardens Ltd.2a Canadian
case), and likewise if a golfer not in the course of play swings a club
and injures a person standing by (Cleghorn v. Oldham 3 ).
I recall an unreported case which I tried on the Northern
Circuit where I found negligence against a golfer who hit with a
golf ball one of the players in a fourball in which the defendant
was playing. The defendant, who on this occasion was not
exhibiting great skill, had, at a short hole, hit his tee shot no
further than the ladies' tee. His second shot went off to the
right into the rough. The two better players who had hit their
balls up to the apron of the green went to look for the defendant's
ball. After a short search the defendant said that he was " out
* [1949] 1 D.L.E. 369.

(1927) 43 T.L.B. 465.

C. A.
1952
,
SUMNER.

sellers L.J.

56

QUEEN'S BENCH DIVISION.

C. A.
^52

SUMNER.

seiiers L.J.

[1963]

" of it " and if he found his ball he would pick it up and he asked
his companions to play on. As they went towards the green and
when they were in a dip in the ground the defendant found his
ball and thereupon placed it and played it into the two men,
hitting one of them in the eye as he turned round on the defendant's cry of " Fore." The defendant's conduct was outside the
game, was unnecessary for it, and showed a complete disregard
for the safety of those who he knew were in the line of danger
from being hit from an unskilled instead of a lofted shot over
their heads.
On the other hand, in another unreported case of a later date
tried on the South Eastern Circuit I found no liability in a driver
of a Jaguar car on a road in France competing in the Monte Carlo
Bally in January one year when, as he was changing gear at
about 75 miles per hour from third to top, the car skidded on
some unexpected " b l a c k " ice on the road and after much
manoeuvring went off the road into a tree and badly injured one
of the crew of three, who was sitting alongside the driver and
acting as navigator. The crew rotated their duties. If it had
been the plaintiff's turn to drive he would probably have been
doing a high speed also as it was a requirement of the competition
and they were all skilled and experienced drivers. The plaintiff
also was unaware of the icy state of the road and had just previous
to the accident said to the driver " You know you have another
" notch "to remind him that he was not in top gear. If the
road had been known to be icy so that it would clearly have been
reckless or foolhardy for even a skilled driver in the rally to travel
so fast then the decision would, and I think should, have been
different.
In O'Dowd v. FrazeT-Nash * McNair J. exonerated from blame
the driver of a motor-car in a road race in Jersey who crashed at
speed owing to a failure of brakes, killing the plaintiff's husband.
In my opinion a competitor or player cannot in the normal
case at least of competition or game rely on the maxim volenti
non fit injuria in answer to a spectator's claim, for there is no
liability unless there is negligence and the spectator comes to
witness skill and with the expectation that it will be exercised.
But 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.
* [1951] W.N. 173.

2 Q.B.

57

QUEEN'S BENCH DIVISION.

If the conduct is deliberately intended to injure someone whose

C. A.
presence is known, or is reckless and in disregard of all safety of
1962
others so that it is a departure from the standards which might ~~
. . .

....

reasonably be expected in anyone pursumg the competition or

game, then the performer might well be held liable for any injury
his act caused. There would, I think, be a difference, for
instance, in assessing blame which is actionable between an injury
caused by a tennis ball hit or a racket accidentally thrown in the
course of play into the spectators at Wimbledon and a ball hit or
a racket thrown into the stands in temper or annoyance when
play was not in progress.
The relationship of spectator and competitor or player is a
special one, as I see it, as the standard of conduct of the participant, as accepted and expected by the spectator, is that which
the sport permits or involves. The different relationship involves
its own standard of care.
There can be no better evidence that Mr. Holladay was riding
within the rules than that he won, notwithstanding this unfortunate accident in the course of the event, and I do not think it
can be said that he was riding recklessly and in disregard of all
safety or even on this evidence without skill.
I do not consider the authorities such as Hall v. BrooMands
Auto Racing Club," relating to the liability of occupiers of
premises or promoters of sporting activities, as there has been
no appeal against the judgment in favour of the British Horse
Society.
I would allow the appeal and enter judgment for the first
defendant also.
DANCKWERTS L.J. stated the facts and continued: Although
there were a number of eye-witnesses of the accident from
different positions, most of whom were experts in regard to
horse-shows and the nature of horses, a remarkable feature of
this case is the variation in their accounts of an occurrence which,
of course, took place in a very short space of time. The judge
was satisfied that all the witnesses were endeavouring to give him
a true account of what happened and did not question their
veracity. It is possible from these different accounts to ascertain
in outline the somewhat unexpected course which this horse took,
but doubts remain as to the details and the actual cause of the
mishap.

[1933] 1 K.B. 205.

WOOLDMDGB

.
SOMNER.

sellers L.J.

58

QUEEN'S BENCH DIVISION.

c

- A1962

~
.
SOMNBB.

Danckwerts
__1

[1963]

It appears that on the horn being sounded for the horses to

gallop, " Work of Art " was on the far side of the arena and was
put into a gallop and came round the south-east end of the arena
(where there was a bandstand) at a fast pace, and after rounding
th e e n ( j 0f the arena came on to the line of the tubs. The horse
appears to have jumped two of the tubs and knocked over a third
and then turned off the line of the tubs so as to pass three or four
feet behind the bench at the end of which the plaintiff was
standing (with his camera by a tub further on). What is far from
clear is why the horse took that course.
Some of the witnesses thought that Mr. Holladay took the
horse round the end of the arena at far too fast a pace, and the
judge found that Mr. Holladay brought the horse into the corner
much too fast, that he allowed it to go on at such a speed that
the velocity carried it beyond the course and into the line of tubs,
and he said that he felt that that fact alone would probably
constitute negligence on Mr. Holladay's part. In the circumstances, the judge came to the conclusion that the accident was
caused by the negligence of Mr. Holladay in the management of
" Work of Art " and awarded damages to the plaintiff against the
first defendant.
The judge, however, said that no one attributed any sort of
moral blame for this accident either upon the plaintiff or upon the
rider of " Work of Art " or upon the organisers of the show. The
judge also said that no one suggested that this was anything other
than an isolated lapse on Mr. Holladay's part, for which there
was a good deal of excuse because this was a contest in which
three very well known horses were involved and Mr. Holladay
was very anxious indeed that his horse should win it. His horse's
most outstanding quality was its gallop and Mr. Holladay wished
not to race his fellow-competitors but to cover the ground a good
deal quicker than they did and in doing so he took the corner as
wide as possible in order to give himself the longest possible
gallop up to the judges along the grandstand side of the course.
I find these observations, with all respect to the judge, somewhat
inconsistent with his conclusion.
The presentation of this case before this court is a rehearing
and the extent to which an appellate court is entitled to interfere
with the findings of fact of a court of first instance has been
discussed by the House of Lords in Benmax v. Austin Motor Co.
Ltd.,e in which the distinction between the finding of a specific
[1955] A.C. 370; [1955] 2 W.L.E. 418; [1955] 1 All E.E. 326, H.L.

2 Q.B.

59

QUEEN'S BENCH DIVISION.

fact and a finding of fact which is really an inference from the

facts specifically found is pointed out. Moreover, in the present
case there is really no question depending upon the credibility of
the witnesses, for the judge has specifically found that all the
witnesses were endeavouring to give a true account of what

happened.

Danckwerts

I share the doubts of Diplock L.J. (whose judgment I have

had the advantage of reading) whether the conclusion that the
horse was not caused to swerve by something the horse saw or
thought he saw so that the horse turned towards the running
track instead of turning inwards towards the grass arena in the
last and vital moments, was correct. After all, we are unable to
have the story from the horse's mouth or to see what the horse
may have seen. It is well known that quite small things may
seem to a horse unexpected and alarming.
But I find it unnecessary to pursue this speculation further
because, like Diplock L.J., I have reached the firm conclusion
that any excessive speed round the end of the arena by " Work of
Art " and his rider was not the cause of the accident, and the judge
was, in my view, mistaken in the inferences which he drew from
the facts which he found.
The effect of the evidence and the inferences which ought to
be drawn from the facts found are so fully and admirably analysed
by Diplock L.J. in his judgment that it is quite unnecessary for
me to go into these in detail in my judgment. I agree entirely
with the conclusions which he has reached. I would only like to
emphasise that a horse is not a reliable mechanical contrivance,
compelled to answer the directions which may be conveyed to it.
As was pointed out by the knowledgable witnesses in the case,
the horse has its own natural mind and impulses, and is the
unpredictable partner in the combination of horse and rider. If
Mr. Holladay brought the horse at too fast a pace round the end
of the arena, I cannot think that it can have been more than a
slight error of judgment, which did not in fact cause the accident
(for the horse was not carried out on to the running track by its
velocity) and, in my view, Mr. Holladay was not guilty of negligence either in the speed at which he rode the horse or in his
attempts to bring the horse into a course which would pass inside
the line of the tubs and the benches and be in the view of the
judges.
Further, in taking up his position in a place where spectators
were not allowed in the afternoons and which must necessarily
be in close proximity to horses proceeding at a gallop, in my

C. A.
iggQ
.
SUMNEB.

_1_

60

QUEEN'S BENCH DIVISION.

C. A.
ig62

SUMNER.

Danckwerts

[1963]

opinion the plaintiff must be taken to accept the risk of something going wrong in the course of an event with resulting danger
to persons so near to the line to be traversed by the competitors,
even though he happened to be inexperienced in regard to
competitions of this kind.
As Lord Oaksey said in Bolton v. Stone 7 : " The standard of

L J.

'

" care in the law of negligence is the standard of an ordinarily

" careful man, but in my opinion an ordinarily careful man does
" n o t take precautions against every foreseeable risk. He can,
" of course, foresee the possibility of many risks, but life would
" be almost impossible if he were to attempt to take precautions
" against every risk which he can foresee. He takes precautions
" against risks which are reasonably likely to happen. Many
" foreseeable risks are extremely unlikely to happen and cannot
" be guarded against except by almost complete isolation."
Mr. Holladay's duty to his employer was to utilise the
qualities of the horse so as to show it to the best advantage.
This involved the horse going at a fast gallop. Decisions have to
be taken in a split second and it is impossible for a rider, as it
seems to me, in such circumstances to calculate every possible
result in his mind. He could not possibly be expected to foresee
that someone would jump out from the line of the bench into the
track of the horse. Persons who stand so close to the scene of
such events must take the risk of something going wrong in the
ordinary course of the sport, and which is a risk incidental to it.
This clearly appears from the decision of this court in Murray v.
Harringay Arena Ltd.* I also would allow the appeal.
DIPLOCK L.J. The trial judge based his findings of negligence
against the rider upon his conduct (a) in negotiating the corner
at the bandstand end of the arena leading into the straight in
front of the line of shrubs, and (b) after the horse had got round
the corner and come into the line of shrubs. The relevant events
took place in the course of a few seconds; all or some of them
were seen by 12 different witnesses including the rider and the
injured man, and, as is inevitable when honest witnesses give
their recollections of what occurred in a very brief space of time,
there were wide divergences in their respective accounts. In
such a case an appellate court will not lightly disturb the findings
of the trial judge as to what in fact occurred. The conviction

i [1951] A.C. 850, 863; [1951] 1

T.L.B. 977; [1951] 1 All E.K. 1078,
H.L.

s [ 1951 ] 2 K.B. 529; [1951] 2 All

E.B. 320n., C.A.

2 Q.B.

QUEEN'S BENCH DIVISION.

61

which the evidence of a particular witness carries may depend as

C. A.
much upon the way he says it as upon what he actually says.
2.gg2
The way in which each witness gives his evidence, what he says
and the intrinsic probability of the events which he asserts took
0place, are all factors to be weighed in determining what are the SUMNBB.
true primary facts, and while an appellate court is in as good a Dipiock L.J.
position as the trial judge to evaluate the two latter factors the
trial judge alone is in a position to assess the first. Although,
therefore, a detailed study of the transcript of evidence, taking
what I hope is no more than legitimate judicial notice of the
vagaries of equine behaviour, would lead me to the conclusion
that the strong probability was that the horse shied into the line
of tubs after it was already galloping down the straight on the
arena side of the shrubs I am, I think, bound by the specific
findings of Barry J. that this did not occur.
I therefore approach the case upon the basis that Mr. Holladay
misjudged the speed at which " Work of Art " on this occasion
could take the corner, and that consequently its centrifugal force
caused it to follow an arc of wider radius than Mr. Holladay intended which brought it into or across the line demarcated by the
tubs of shrubs. The judge describes the speed as " much too fast "
and says that that fact alone would probably constitute negligence
on the part of Mr. Holladay. That it was in the event too fast
to enable the horse to take the corner on an arc which would bring
it into the straight upon the course intended by Mr. Holladay,
parallel to the line of shrubs and some three feet on the arena
side of them, is a finding of primary fact which this court cannot,
I think, disturb; but that it was going " much too fast " is an
inference from other facts on which the judge's findings are much
less specific. He accepted, without distinguishing between their
different accounts, the evidence of seven witnesses who saw all
or some of the events which occurred after the horse had reached
the line of shrubs. [His Lordship referred to the evidence of
two witnesses to the eSect that the horse came straight down the
line of shrubs, jumping them, brushing through them or colliding
with them, and that it had negotiated three or four shrubs before
swerving to the left on to the cinder track where the plaintiff
stepped or stumbled back into its path. His Lordship continued : ] This account of what happened after the horse had got
to the line of shrubs was corroborated by the evidence of the
plaintiff himself, of Mr. Holladay, of Mrs. Holladay and of the
first defendant. From the judge's reference to Mr. Holladay's
carrying the horse along the line of shrubs, it is I think plain

62

QUEEN'S BENCH DIVISION.

[1963]

C. A.
that he accepted that this was what happened. Mr. James, for
ig62
the respondents, so contends or concedes and I accept it as a

finding
of primary fact which this court should not disturb.
,
But if it be accepted it must follow that Mr. Holladay had
SUMNEB.
completed his right-angle turn and got his horse straight or almost
Dipiock L.J. straight facing towards the collecting-ring end of the arena by
the time he reached the line demarcated by the shrubs and in all
probability at a point on that line immediately in front of a
shrub. Had he been travelling at a speed too great to enable
him to straighten his horse by the time he got to the line
demarcated by the shrubs, its momentum must have carried it
out to the cinder track side of the line of shrubs, and if it were
then brought round to jump, as it did, the next shrub in the
arena, its momentum by the time it jumped that would have
been carrying it towards the arena side of the line of shrubs and
the accident would not have occurred on the cinder track one or
two shrubs further down towards the collecting-ring end of the
arena, as the judge found that it did. Mr. Holladay had thus
misjudged the radius of the arc in which he could bring round his
horse at the speed at which it was travelling by no more than
four feet. It is, I think, permissible to take judicial notice that
there are many factors other than mere speed which affect the
ability of a ridden horse to negotiate a corner: its conformation,
its fitness, its schooling, its experience of the show ring, its
familiarity with its rider and its responsiveness to his accustomed
aids (which is not invariably uniform) and whether it remains
balanced throughout the manoeuvre. The rider alone can tell
how all these factors, particularly the last two, are operating at
any particular moment, and if, as in this case, the rider's recollection is rejected for reasons which reflect in no way on his
truthfulness, the only cogent evidence as to the reasons why the
manoeuvre was unsuccessfully executed is that of expert horsemen, accustomed themselves to executing that kind of manoeuvre
on that class of horse, and drawing inferences from what they
were able to observe. It is not without significance that of the
four witnesses qualified to express an expert view about the
extent to which excessive speed was a factor and whose evidence
the judge accepted, three were under the impression that the
horse had been travelling on an arc which brought it straight out
to the track jumping only one shrub in the line of shrubs on its
way. The other witness, Major Field Marsham, whose evidence
is less definite on this point than that of the others, thought that
he recalled the horse tripping over a second shrub after jumping

2 Q.B.

QUEEN'S BENCH DIVISION.

63

one. If their recollection of what they saw was accurate, it may

C. A.
well be that the first three saw the horse jump the last tub which
igg2
it jumped and did not realise that it had previously negotiated at
least two others in a straight line with that. Even Major Field
_
Marsham's recollection does not give a picture of the horse going SUMNER.
straight down the line of shrubs, jumping, brushing through or Dipiock L.J.
stumbling over at least three before it ran out on the running
track at all. The views of those witnesses as to how in fact the
horse took the corner must have been coloured by what they
, thought they saw of the course that it took. The judge has found
facts inconsistent with its having taken that course upon which
their views as to its speed were, at least in part, founded and
consistent only with its having taken the corner at a lesser speed
than would have brought it upon the course which at least the
first three of them thought it took.
If the judge's finding that " Mr. Holladay brought this horse
" into the corner much too fast " means more than that Mr.
Holladay misjudged the speed at which " Work of Art " was in the
event able to take the corner and that in consequence it followed
an arc of a radius some four feet longer than he intended, it is no
more than an expression of the judge's own opinion. To the
extent that it finds support in the view expressed by expert
observers, they were observers whose impression of the course
taken by the horse was found by the judge to be erroneous, and
even they were not prepared to qualify Mr. Holladay's action as
anything more than injudicious riding or an error of judgment.
The judge's next finding of fact is that " this horse when it
" crashed into the line of tubs would have gone out on the cinder
" track and it would not, at least, have done anyone any harm had
'' Mr. Holladay allowed it to do so." Any statement of what would
have happened but did not is an inference from primary facts
which this court can examine. The judge found, and it was in
this court common ground, that after the horse " crashed into "
or jumped the first tub which it came to in the line of tubs it
went straight along the line jumping or colliding with at least two
other tubs or shrubs before it veered out on to the cinder track
and struck the plaintiff. Whether the last shrub it jumped was
the one nearest to the plaintiff on the bandstand side or, as is
more probable, having regard to the evidence and phlegmatic
conduct of Corporal-Major Phillips, the one beyond that, is not
clear, nor does the judge make any finding as to this. There is
no evidence as to the exact distance between each tub but it
would appear to be something like 10 yards, and it appears to have

64

QUEEN'S BENCH DIVISION.

C. A.
1962

SUMNER.

Dipiock L.J.

[1963]

been accepted at the trial, as it has in this court, that " Work
" f Art " na, d blundered some 20 to 30 yards along the line of
shrubs before the collision took place. As I have already pointed
out, the natural inference from this is that any momentum
tending to take the horse out on to the cinder track must have
been overcome by Mr. Holladay by the time it was jumping the
first shrub. Once it had straightened its course, as it had by
then, the only direction in which its momentum would carry it
was forward in a straight line down the shrubs. So far as the
mechanics of the matter are concerned, the horse if left to itself
at this stage would be equally likely to pass to the right or left
of the shrubs which now lay directly in front of it. The most
unlikely thing for it to do was what it in fact did, to go straight
over or through at least two narrow obstacles in the form of shrubs
in tubs which it could have avoided by swerving a mere foot or so
to the left or right. It cannot possibly be suggested that Mr.
Holladay intended the horse to take this extraordinary course.
On the left of the shrubs at the edge of the cinder track were a
kerb and cables on which one witness thought the horse did in
fact trip when it eventually swerved on to the cinder track
immediately before the collision. This presented a hazard and
there was no hazard on the arena side of the shrubs. I should in
any event have assumed that Mr. Holladay was trying to bring
the horse back on to the course to the right. It would be the
instinctive reaction of a horseman, and Mr. Holladay, although
he disagrees as to the circumstances which led to his horse getting
into the line of shrubs, says that until the moment when he
parted company with " Work of Art " he was trying to get it back
to the arena side of the shrubs. In my view the only possible
inference from the facts found by the judge as to the course taken
by the horse after encountering the first shrub in its path is that
from that moment at the latest the horse was out of control, and
what it would have done had Mr. Holladay abandoned every
instinct of a horseman and made no attempt to control it or had
attempted to turn it to the left on to the cinder track is pure
speculation.
It seems to me that the judge, in making his finding that the
horse " when it crashed into the line of tubs would have gone out
" o n to the cinder track had Mr. Holladay allowed it to do so,"
had forgotten that the seven witnesses whose account he said he
accepted had in fact given versions which conflicted in a respect
which was crucial on this point. Three witnesses, as I have
pointed out, thought that the horse had in fact gone out on to

2 Q.B.

QUEEN'S BENCH DIVISION.

65

the cinder track after jumping the first tub it encountered and
C. A.
had remained on the cinder track side of the tubs until the
^ggg
collision. If this had in fact happened the accident might well
have been attributable to an attempt by Mr. Holladay to bring the
.
horse back into the course from the cinder track 20 or 30 yards from
SUMNER.
where it got on to the cinder track through a gap in the shrubs Dipioot L.J.
which was occupied by a bench and spectators. Brigadier Dunn's
answer in cross-examination that the risk to spectators of doing
this was obvious, on which Mr. James strongly relied, was I think
clearly based upon the hypothesis that this was in fact what
happened. But to reject this part of these witnesses' account of
the accident and to accept that the horse after jumping the first
shrub it encountered went straight up the line of shrubs involves
also accepting that the control exercised by Mr. Holladay to
prevent the horse going out on to the cinder track had already
been effective by the time " Work of Art " " crashed into the line
" of tubs." If it were blameworthy of him to try to prevent the
horse going on to the cinder track the blame attaches earlier in
time before the horse encountered its first shrub and went out
of control.
Accepting then the primary facts as found by the trial judge
but not those inferences which he drew from them and which
upon analysis of the evidence I think are unjustified, one is left
with two acts or omissions by Mr. Holladay which were causative
factors in the accident. The first was the speed at which he
caused " Work of Art " to negotiate the bend, the second was his
omission at some moment before he reached the line of tubs to
let the horse run out on to the cinder track.
It is a remarkable thing that in a nation where during the
present century so many have spent so much of their leisure in
watching other people take part in sports and pastimes there is
an almost complete dearth of judicial authority as to the duty
of care owed by the actual participants to the spectators. In
Cleghom v. Oldham 9 the act relied on as constituting negligence
by a golfer was not done in the actual course of play and the case,
which was tried by a jury and only very briefly reported, throws
little light upon the extent of the duty of care. So, too, in the
Canadian case of Payne d Payne v. Maple Leaf Gardens Ltd.10
the negligent act was not committed in the course of play but
in the course of a private fight between two players over the
possession of an ice hockey stick at the opposite side of the arena
43 T.L.B. 465.

" [1949] 1 D.L.B. 869.

66

QUEEN'S BENCH DIVISION.

C. A.
1962

,
SOMNBB.

Dipiock L.J.

[1963]

to that in which the game was going on at the relevant time.

There have been other casesHall v. Brooklands Auto-Racing
Club " itself is one of themin which the actual participants
in the game or competition have been sued as well as the occupiers
the premises on which it took place, but juries have
0f
acquitted the participants of negligence and the cases are reported
only upon the duty owed by an occupier of premises to invitees.
Such duty is not based upon negligence simpliciter but flows from
a consequential relationship between the occupier and the invitee;
there is thus no conceptual difficulty in implying a term in that
consensual relationship (which in the reported cases has in fact
been a contractual relationship) that the occupier need take no
precautions to protect the invitee from all or from particular kinds
of risks incidental to the game or competition which the spectator
has come upon the premises to watch.
In the case of a participant, however, any duty of care which
he owed to the spectator is not based upon any consensual
relationship between them but upon mere " proximity," if I may
use that word as a compendious expression of what makes one
person a " neighbour " -of another in the sense of Lord Atkin's
definition in Donoghue v. Stevenson 12 as expanded in Hay (or
Bourhill) v. Young.13 Nevertheless, some assistance is to be
gathered from the invitee cases, for the term as to the duty of
the occupier to take precautions to prevent damage being sustained upon the premises by his invitee, which was implied at
common law, was closely analogous to the duty a breach of
which constitutes negligence simpliciter, namely, " to use reason" able care to ensure safety " (Hall v. Brooklands Auto Racing
Club, per Scrutton L . J . " ) , " that reasonable skill and care have
" been used to make [the premises] safe " (per Greer L.J. 1 5 ).
To treat Lord Atkin's statement " You must take reasonable
'' care to avoid acts or omissions which you can reasonably foresee
"would be likely to injure your neighbour," 16 as a complete
exposition of the law of negligence is to mistake aphorism for
exegesis. It does not purport to define what is reasonable care
and was directed to identifying the persons to whom the duty to
take reasonable care is owed. What is reasonable care in a
particular circumstance is a jury question and where, as in a
ii [1933] 1 K.B. 205.
12 [1932] A.C. 562, 580; 48 T.L.E.
494, H . L .
" [1943] A.C. 92; .[1942] 2 All
E . E . 396, H . L .

" [1933] 1 K.B. 205, 214.

" Ibid. 223.
i [1932] A.C. 562, 580.

2 Q.B.

QUEEN'S BENCH DIVISION.

67

case like this, there is no direct guidance or hindrance from

C. A.
authority it may be answered by inquiring whether the ordinary
igg2
reasonable man would say that in all the circumstances the
defendant's conduct was blameworthy.

The matter has to be looked at from the point of view of SUMNER.

the reasonable spectator as well as the reasonable participant; Dipiock L.J.
not because of the maxim volenti non fit injuria, but because
what a reasonable spectator would expect a participant to do
without regarding it as blameworthy is as relevant to what is
reasonable care as what a reasonable participant would think was
blameworthy conduct in himself. The same idea was expressed
by Scrutton L.J. in Hall v. Brooklands 17 : " What is reasonable
" care would depend upon the perils which might be reasonably
" expected to occur, and the extent to which the ordinary spectator
" might be expected to appreciate and take the risk of such
" perils."
A reasonable spectator attending voluntarily to witness any
game or competition knows and presumably desires that a reasonable participant will concentrate his attention upon winning,
and if the game or competition is a fast-moving one, will have to
exercise his judgment and attempt to exert his skill in what, in
the analogous context of contributory negligence, is sometimes
called " the agony of the moment." If the participant does so
concentrate his attention and consequently does exercise his
judgment and attempt to exert his skill in circumstances of this
kind which are inherent in the game or competition in which he
is taking part, the question whether any mistake he makes
amounts to a breach of duty to take reasonable care must take
account of those circumstances.
The law of negligence has always recognised that the standard
of care which a reasonable man will exercise depends upon the
conditions under which the decision to avoid the act or omission
relied upon as negligence has to be taken. The case of the workman engaged on repetitive work in the noise and bustle of the
factory is a familiar example. More apposite for present purposes
are the collision cases, where a decision has to be made upon the
spur of the moment. " A's negligence makes collision so threaten" ing that though by the appropriate measure B could avoid it, B
" has not really time to think and by mistake takes the wrong
" measure. B is not to be held guilty of any negligence and A
" [1933] 1 K.B. 205, 214.

68

[1963]

QUEEN'S BENCH DIVISION.

C. A.
1962

WOOLDBIDOB

" wholly fails." (Admiralty Commissioners v. 8.S. Volute.1*)

A fails not because of his own negligence; there never has been
any contributory negligence rule in Admiralty. He fails because
T-, ,

i_

1.1

j.

B has exercised such care as is reasonable in circumstances in

SUMNEB.
which he has not really time to think. No doubt if he has got
Dipiock L.J. into those circumstances as a result of a breach of duty of care
which he owes to A, A can succeed upon this antecedent negligence; but a participant in a game or competition gets into the
circumstances in which he has no time or very little time to think
by his decision to take part in the game or competition at all. I t
cannot be suggested that the participant, at any rate if he has
some modicum of skill, is, by the mere act of participating, in
breach of his duty of care to a spectator who is present for the
very purpose of watching him do so. If, therefore, in the course
of the game or competition, at a moment when he really has not
time to think, a participant by mistake takes a wrong measure,
he is not, in my view, to be held guilty of any negligence.
Furthermore, the duty which he owes is a duty of care, not
a duty of skill. Save where a consensual relationship exists
between a plaintiff and a defendant by which the defendant
impliedly warrants his skill, a man owes no duty to his neighbour
to exercise any special skill beyond that which an ordinary
reasonable man would acquire before indulging in the activity
in which he is engaged at the relevant time. It may well be that
a participant in a game or competition would be guilty of negligence to a spectator if he took part in it when he knew or ought
to have known that his lack of skill was such that even if he
exerted it to the utmost he was likely to cause injury to a
spectator watching him. No question of this arises in the present
case. It was common ground that Mr. Holladay was an exceptionally skilful and experienced horseman.
The practical result of this analysis of the application of the
common law of negligence to participant and spectator would, I
think, be expressed by the common man in some such terms as
these: " 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."
The spectator takes the risk because such an act involves no
" [1922] 1 A.C. 129, 136; 38 T.L.E. 225, H.L.

2 Q.B.

QUEEN'S BENCH DIVISION.

69

breach of the duty of care owed by the participant to him. He

C. A.
does not take the risk by virtue of the doctrine expressed or
^ggg
obscured by the maxim volenti non fit injuria. That maxim
states a principle of estoppel applicable originally to a Boman

citizen who consented to being sold as a slave. Although pleaded SUMNER.

and argued below it was only faintly relied upon by Mr. Everett Dipiock L.J.
in this court. In my view, the maxim in the absence of expressed
contract has no application to negligence simpliciter where the
duty of care is based solely upon proximity or " neighbourship "
in the Atkinian sense. The maxim in English law presupposes a
tortious act by the defendant. The consent that is relevant is
not consent to the risk of injury but consent to the lack of
reasonable care that may produce that risk (see Kelly v.
Farrans Ltd. per Lord MacDermott 2 ), and requires on the part
of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran. (Osborne
v. London and North Western Railway Co,21 per Wills J., 22
approved in Letang v. Ottawa Electric Railway Co.23) In Dann
v. Hamilton2i Asquith J. expressed doubts as to whether the
maxim ever could apply to license in advance a subsequent act
of negligence, for if the consent precedes the act of negligence the
plaintiff cannot at that time have full knowledge of the extent
as well as the nature of the risk which he will run. Asquith J.,
however, suggested that the maxim might nevertheless be applicable to cases where a dangerous physical condition had been
brought about by the negligence of the defendant, and the plaintiff
with full knowledge of the existing danger elected to run the risk
thereof. With the development of the law of negligence in the
last 20 years a more consistent explanation of this type of case is
that the test of liability on the part of the person creating the
dangerous physical condition is whether it was reasonably foreseeable by him that the defendant would so act in relation to it as to
endanger himself. This is the principle which has been applied
in the rescue cases (see Cutler v. United Dairies (London) Ltd.,25
and contrast Haynes v. Harwood 26) and that part of Asquith J. 's
judgment in Dann v. Hamilton21 dealing with the possible
application of the maxim to the law of negligence which was not
[1954] N . I . 41.
so Ibid. 45.
2i (1888) 21 Q.B. 220; 4 T.L.B.
591, D.C.
" Ibid. 220, 224.
23 [1926] A.C. 725; 42 T.L.E. 596,
H.L.
2 Q.B. 1963.

21

[1939] 1 K.B. 509; 55 T.L.E.

97; [1939] 1 All E.E. 59.
25 [1933] 2 K.B, 297, C.A.
28
[1935] 1 K.B. 146; 51 T.L.B.
100, C.A.
" [1939] 1 K.B. 509, 517.
5

QUEEN'S BENCH DIVISION.

[1963]

C. A.
lg6 2

approved by the Court of Appeal in Baker v. T. E. Hopkins &

Son.2* In the type of case envisaged by Asquith J., if I may
adapt the words of Morris L.J. in Baker v. T. E. Hopkins &

Son,29 the plaintiff could not have agreed to run the risk that the
SUMNER.
defendant might be negligent for the plaintiff would only play
Dipiock L.J. his part after the defendant had been negligent.
Since the maxim has in my view no application to this or any
other case of negligence simpliciter, the fact that the plaintiff
owing to his ignorance of horses did not fully appreciate the nature
and extent of the risk he ran did not impose upon Mr. Holladay
any higher duty of care towards him than that which he owed to
any ordinary reasonable spectator with such knowledge of horses
and vigilance for his own safety as might be reasonably expected
to be possessed by a person who chooses to watch a heavyweight
hunter class in the actual arena where the class is being judged.
He cannot rely upon his personal ignorance of the risk any more
than the plaintiff in Murray v. Harringay Arena 30 could rely upon
his ignorance of the risk involved in ice-hockey, excusable though
such ignorance may have been in a six-year-old child.
Beyond saying that the question is one of degree, the judge
has not expressly stated in his judgment anything which would
indicate the considerations which he had in mind in determining
that Mr. Holladay was in breach of the duty of care owed by a
participant in a competition of this character to a spectator who
had chosen to watch the event in the arena in which it was taking
place. There is, however, no reference in his judgment to the
fact, which is, in my view, of the utmost relevance, that Mr.
Holladay's decisions as to what he should do once the signal
for the gallop had been given had to be made in circumstances in
which he had no time to exercise an unhurried judgment. It is, I
think, clear that if the trial judge gave any weight to this factor
he did not make proper allowance for it.
As regards the speed at which Mr. Holladay went round the
bandstand end of the arena, I doubt whether his error of judgment
would have amounted to negligence even if one were to ignore
completely the fact that his judgment had to be exercised rapidly
in the excitement of the contest although not at a moment of
intense crisis. For it does not seem to me that any miscalculation
of the speed at which " Work of Art " could take the corner could
be reasonably foreseen to be likely to injure any spectator sitting
as [1959] 1 W.L.R. 966; sub nom.
Ward v. Hopkins (T. E.) & Son Ltd.
[1959] 3 All E.B. 225, C.A.

[1959] 1 w.L.E. 966, 976.

[1951] 2 K.B. 529.

2 Q.B.

QUEEN'S BENCH DIVISION.

71

on or standing by the benches 20 to 30 yards from the point at

C. A.
which a horse taking the corner at too great a speed would cross
ig62
the line demarcated by the-shrubs. The likelihood was that if a
.
horse was forced by its momentum to go beyond that line it
OLDBIDGE
would run out on to the cinder track without coming into contact
SUMNER.
with any of the shrubs; for not only were the gaps between the Dipiock L.J.
shrubs much wider than the space actually occupied by the
individual tubs of shrubs, but the evidence was, if evidence to this
effect were needed, that a horse will do all it can to avoid a
stationary obstacle. If it ran out on to the cinder track there
would be no peril to spectators who remained, as reasonably knowledgeable spectators would remain, on the benches in line with the
shrubs. Furthermore, in the unlikely event of a horse coming
into contact with a shrub at the point at which it crossed the
line demarcated by the shrubs, while it might be foreseeable that
it might become momentarily unbalanced, it was in the highest
degree improbable that this would result in its blundering down
the line of shrubs over or through two, three or four more tubs of
shrubs, each of which was likely to deflect it in its course, and to
come into collision with spectators on or in line with the benches
who, if they were watching, could take action to avoid it. In
fact, this unlikely event did not happen. The horse was deflected
from its course before it reached the benches and no spectator
would have been injured had not the plaintiff, in a moment of
panic, stepped or stumbled back out of his proper and safe place
among the other spectators in the line of benches into the path of
the horse. Such panic in the case of a person ignorant of equine
behaviour and, as the judge found, paying little or no attention
to what was going on, is understandable and excusable, but, in my
view, a reasonable competitor would be entitled to assume that
spectators actually in the arena would be paying attention to what
was happening, would be knowledgeable about horses, and would
take such steps for their own safety as any reasonably attentive
and knowledgeable spectator might be expected to take.
When due allowance is made for the circumstances in which
Mr. Holladay had in fact to exercise his judgment as to the
speed at which to take the corner, his conduct in taking the corner
too fast could not, in my view, amount to negligence.
As regards the second respect in which the judge found
Mr. Holladay to be negligent, namely, in his attempt to bring
back the horse into the arena after it had come into contact with
the first shrub, I have already stated the reasons why I am unable
to accept the judge's inference of fact that the course taken by

72

QUEEN'S BENCH DIVISION.

C. A.
1962

o.

'
Dipiock L.J.

[1963]

the horse along the line of shrubs was due to Mr. Holladay's
attempt to bring it back into the arena instead of letting it run
out on to the cinder track. But even if the judge's inference of
fact be accepted, here was a classic case where Mr. Holladay's
decision what to do had to be taken in the '' agony of the
" m o m e n t , " when he had no time to think, and if he took
the wrong decision that could not in law amount to negligence.
The most that can be said against Mr. Holladay is that in the
course of and for the purposes of the competition he was guilty
of an error or errors of judgment or a lapse of skill. That is not
enough to constitute a breach of the duty of reasonable care which
a participant owes to a spectator. In such circumstances something in the nature of a reckless disregard of the spectator's
safety must be proved, and of this there is no suggestion in the
evidence. I, too, would allow this appeal.
Appeal allowed.
Judgment to be entered for first
defendant with costs down to date
of legal aid certificate: thereafter,
with costs of the trial and of the
appeal, not to be enforced without
further order.
Appellant to recover against the
respondents, the second defendants,
10 guineas as costs on the appeal.
Plaintiff's costs to be taxed under
Third Schedule, Legal Aid and
Advice Act.
Solicitors: E. P. Rugg & Co.; Pollard, Stallabrass & Martin;
Kimbers.
E. M. W.