Louis Weston considers the recent high-profile case of Tylicki v Gibbons

Professional horseracing jockey Freddie Tylicki brought a Personal Injury Action for liability only against his fellow jockey, Graham Gibbons after a collision at Kempton in 2016 caused severe and life changing injuries. Louis Weston explains why this case is of interest to the sport.

The Background

The core issue of the legal dispute concerned the standard of care to be taken by a jockey racing in a competitive environment and, specifically, whether on this occasion the Defendant’s riding fell below that standard of care.

The parties agreed that the standard was set in the case of Caldwell v Maguire [2001] EWCA Civ 1054 and that in particular it should be recognised that liability for sporting errors could not be established by “errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest.  Something more is required” (para 27) and noted the first instance decision in Caldwell which had found that it would be difficult to establish breach of duty without establishing facts which amounted to “reckless disregard for the fellow contestant’s safety” (para 26 (5).

Mr Tylicki contended that he incurred injury because of actionable negligence with respect to the way Mr Gibbons rode Madame Butterfly on 31^st October 2016. Conversely, Mr Gibbons maintained his riding did not fall below the standard of care owed in the circumstances holding instead this was a racing incident and invited the court to conclude there was no shortcoming on the part of Mr. Gibbons, or if there was any shortcoming it fell below the threshold of liability.

Expert Evidence

The parties adduced expert evidence from, for the Claimant, Ryan Moore a former jockey, and Mr Jim McGrath an expert race reader and for the Defendant, Charles Lane, an expert in equestrian matters.

Those experts, and particularly former jockey Mr Moore, were substantially challenged on their evidence. The Court noted in particular that the Defence had sought to put material from multiple races in which Mr Moore rode by an apparent suggestion that those races had been chosen by Mr Lane.  Whereas as they in fact had not (para 22).  Mr Moore’s evidence was accepted by the court in relation to the material aspects of the case.

The Court also had to consider the Race Day Stewards findings in the case, and in particular their finding on the day that there was only an accidental interference (para 40).  The Court found it should give weight to the decision but it was neither bound by it nor determinative because of the short hearing that led to it and the decision of the Race Day Stewards not to adjourn and consider further evidence (para 55).

The Judgment

After hearing expert evidence, lay evidence and reviewing the films of the race, HHJ Karen Walden-Smith, sitting as a High Court Judge, concluded this was not just an unfortunate “racing incident” (para 75). Instead, during the four second period of riding in question, the Defendant had a “reckless disregard” for Mr. Tylicki’s safety. HHJ Karen Walden-Smith adjudged that Mr Gibbons knew, or “at the very least ought to have known, that Mr Tylicki was inside on the rail” and instead of merely controlling Madame Butterfly to enable her to maintain a “racing line” he instead “exerted real pressure” and did not stop bringing her in close to the rail even after the first collision (para 89). That conclusion was reached by acceptance of the expert evidence of Mr Moore, a champion jockey, and the other jockey witnesses in the case accompanied by analysis of the films of the race.

Whilst accepting that risk of injury is part of a professional jockey’s life, HHJ Karen Walden-Smith found the actions undertaken to demonstrate a “reckless disregard” for the Claimant’s safety, finding that in these circumstances liability to be made out (para 93).

Read the full judgment here: Tylicki v Gibbons

Breach of duty v Recklessness

Louis Weston is a sports lawyer with a successful and established practice in Sports Regulation, Governance, Disciplinary Cases, Safeguarding and Anti-Doping.

He observes that this case does not seem to do anything other than restate the law of negligence in the context of on-sporting disputes. However, the application of that law in this judgment as to what amounts to recklessness in the sporting context moves the question of what is a breach of duty to an intensely factual question in the context of the sport itself.

News 12 Jan, 2022