Keeping her promise to deliver a determination before Christmas, HHJ Karen Walden-Smith handed down judgment yesterday in Frederik Tylicki v Graham Gibbons and in line with other recent High Court decisions, it comes promptly after closing submissions on 3 December. A copy of the judgment can be accessed here.
The claim arose from an incident during a flat race in October 2016 at Kempton in which the claimant’s and defendant’s horses collided, causing the claimant to fall and be rendered paraplegic from the injuries he suffered.
Much press was generated during the trial itself. That is nothing new, particularly in high profile sports claims. Here, the life changing injuries suffered by the claimant grabbed the headlines and not simply for the potential compensation award but because he remains not just connected to the sport, but through his punditry, in its limelight. The negative spin in the story came from the suggestion that a finding for the claimant would lead to the potential ruin of the sport.
Spoiler alert; the claimant succeeded. Addendum spoiler alert; horseracing will survive.
The issue for the Court was, in the context of such a significant claim, rather narrow. Did the defendant’s riding fall below the standard of care owed in the circumstances [of a competitive racing environment] or was this, as the defendant made out, nothing other than a “racing incident” when the claimant, in terms, attempted to go for a gap that wasn’t there?
The Court was referred to, and considered carefully the leading authority of Caldwell v Maguire and in particular five principles identified by Holland J at first instance, that were required for a case to be established. Mr Caldwell was unsuccessful (at trial and on appeal) where oversight, momentary lapse, error of judgement or carelessness was not enough for his claim to succeed.
Caldwell recognised there is a high threshold to overcome, and nothing has changed.
It would be wrong to distil all the issues of the instant case to four seconds of racing, but with the benefit of video footage of the incident, the Court’s analysis came down to that very short window. If nothing else, it is a reminder that perhaps because of the fast moving nature of the sport, high standards are expected from competitors.
“ In my judgement, during this spell of riding between 15:27:51 through to 15:27:55, Mr Gibbons had a reckless disregard for Mr Tylicki’s safety …  The actions from 15:27:51 were not mere lapses or errors of judgement. This was a course of action that carried over a number of seconds and while that might, in some circumstances, be considered a short period of time, in the heat of a horse race where jockeys are required to make split second decisions and to be able to constantly make assessments and adjustments to their own riding, this was a sufficient period of time for a skilled jockey to make decisions.”
And so in less time than it might have taken to read the last paragraph, and in the heat of competition, the defendant was expected to take action that might have prevented the devastating outcome that occurred.
That is a determination which some may consider harsh, but four seconds in the life of a professional athlete can be the difference between winning and last place.
Perhaps with a nod to the press headlines at the time of the trial, the judge addressed the “floodgates” concern; pointedly  that this “ … is not the thin end of the wedge.”
In the same paragraph she also observed that “ … this case is determined upon all the circumstances and the factual context in which this incident took place. It does not set a precedent either within horse-racing or in sport generally.“ Such an important point that it was repeated, verbatim, in the closing paragraph of the judgment.
So where does that leave us?
Incidents between participants in sport are commonplace; whether riders (horse, bicycle, motorcycle) drivers (kart, car, truck) or players generally – even in what are seen as “non-contact” sports. There are risks inherent in sporting endeavour, including the risk of injury from incidents between participants, even when played by the rules and within the laws.
Some injuries may be career ending, life changing, or worse. Despite the serious injuries in this claim and despite the finding against the defendant we are not at a point of strict liability. We are not, to adapt the judge’s comment, even at “the thin end of the [strict liability] wedge.”
The floodgates have not opened and the world continues to turn. Perhaps fittingly for a judgment relating to a flat race, no new hurdles have been created – for either claimant or defendant – in the pursuit or defence of such claims. And, as ever, the outcome is specific to the findings of fact made in relation to the incident.
Insurance cover for participant v participant “incidents” is a rare thing, and that may have some bearing on the frequency with which incidents might become claims.
Even where incidents give rise to claims, the analysis and application of the evidence to the rules and laws of the sport, and in the context of the overall event and of the sport generally will continue to be fundamental.
This will not be the last piece of litigation between professional athletes, but the outcome provides a reminder of the standards expected in this setting and is not, in my view, the harbinger of doom that parts of the press considered it might be.