Certain activities or sports carry risks and when one is injured in such an activity and considers another party negligent for some an act or omission, it can be very difficulty to succeed in a case where the activity in question carries inherent risks.
There is a general practice which follows that any activity of this nature is inherently dangerous and that members of a hunt waive all claims against the land-owners for injuries sustained or the mount during a hunt.
Duty of Care
The test for the duty of care owed to the injured party is that of reasonable care. It is not absolute care. It is reasonable care.
“(1) An occupier of premises owes a duty of care (‘the common duty of care’) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section ‘the common duty of care’ means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
In H. v. W.C.C. where the Occupiers’ Liability Act 1995 came into play regarding an incident on the grounds of a large house and in this case, it was found that the duty of care found under s. 3(1) of the Act was to take “reasonable care and no more”.
Reasonable Care of the Land-Owner
A question which arises in these cases is was the incident foreseeable or not. A landowner only gives permission to the Master of the hunt to cross his/her land. A landowner may not know of every potential hazard that could arise on the land. Foxes can go anywhere on land, and it is very difficult and arguably not foreseeable for a landowner to know of a safe passage when the fox could really go anywhere.
The inherent dangers that exist in hunting, will exist for jockeys and in racing generally. The threshold for liability is high. It may be difficult to prove cases arising with similar facts and attach liability.
In an Australian case of R.-v-S. which assessed duty of care in the context of water sports, it was stated:
“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.”
In cases of this nature it is likely that knowledge of the injured party in terms of the risks will be assessed. Would they have known about the risks ? Most likely. Would they have known the terrain and fox were unpredictable ? Possibly, yes.
The activity the person is engaging in at the time of the accident, is an important aspect of such a case to consider when assessing negligence. A duty of care regarding engaging in any activity that carries risks of this nature including various sports is evidently different to that of a scenario where a person is in a place of employment and injured, for example.
Due to the nature of this activity carrying inherent risks, there is a high threshold to reach, to also satisfy the reasonable foreseeability test and to prove to the court that negligence arose.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.
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