Bottlekicking Good
As part of a series of crafted documentaries, young filmmaker Almir Datoo has shot and edited footage of the annual bottlekicking game at Hallaton in Leicester. This was my second time watching the festivities. The attached trailer gives just a hint of the controlled violence and organised mayhem of this ancient precursor to rugby football.
After some processions between the Fox PH Hallaton, the Buttercross there, and the Church and back again, and the doling out of Hare Pie, the game gets underway in a field behind the Bewicke Arms PH. The village of Hallaton and nearby Medbourne compete to wrestle a bottle (a 4 pint barrel of beer not much larger than a rugby ball) across either one of two sections of the Medbourne Brook a mile apart. A warning sign states clearly that the landowner does not give permission for this and neither does he accept any liability for what takes place. But the presence of several ambulances on standby is a clue.
The bottle is tossed in the air three times and the game is afoot. Crossing the upper stream records a win for Medbourne but Hallaton (who usually win) must drag the bottle over the lower stream which is largely a downhill run from the starting point. This is a best of three contest and - if it goes to three - the final game may not be done before dark. In the process, almost any means of competing to grab the bottle and carry or pass it forward for your team is deemed fair except eye gouging and using a weapon. Barely half an hour into the first game, it was halted as a young woman was taken away with an injury. Once the ambulance had driven off the game restarted every bit as violently as before.
The issue of liability for injury in amateur sport is a potentially contentious one. The fundamental principle in operation has been volenti non fit injuria: “to a willing person, no injury is done”. Every participant in amateur sport is effectively a volunteer (i.e. not being at work and not being in the employ of someone as a condition of participating). The three elements of using this as a defence are:
Knowledge and Willingness: The individual must have a clear understanding of the risks involved and still choose to proceed. They must have been aware of the specific danger and voluntarily accepted the risk of injury.
Agreement (Express or Implied): The agreement can be express, meaning the individual explicitly stated they were willing to take the risk. It can also be implied, for example, by continuing to participate in a known risky activity after being made aware of the risks.
Capacity: For a valid agreement, the person must have the legal capacity to make a decision and understand the implications of their actions. This means they are of sound mind and not under undue influence or coercion.
A precedent of note is Condon v Basi [1985] 1 WLR 866 Court of Appeal, where the Claimant suffered a broken leg during a tackle from the Defendant during a local league match (which was refereed and played according to football league rules). A defendant is liable if they do not exercise the requisite care. The court held that the standard of care can vary according to the level of expertise the player has. The tackle was reckless even with regards the standard expected of a local league player. Whilst a participant can be taken to accept the risks of injury arising from voluntarily participating in a sport, they do not accept the risk of injury which occurs outside the rules of the game. In bottlekicking it is the very absence of any refereeing and any but the aforementioned rudimentary rules that would undermine the use of this particular precedent.
In Caldwell v Maguire [2001] EWCA Civ. 1054 contestants in a lawful sporting contest each owe each other a duty of care to “exercise the care which is objectively reasonable in the circumstances” to avoid causing one another injury. The circumstances in question were during a horse race conducted under Jockey Club rules in which a jockey was injured by the conduct of two others whilst maneuvering their mounts. “Relevant circumstances” are deemed to be those properly attendant on the event, including its purpose, demands, rules and customs, inherent dangers and the standard reasonably expected of contestants. As you can probably imagine there is a very broad spectrum of “relevant circumstances” attendant on such different events as an amateur football match, a professional horse race and a free-for-all in a field. It is clear though that a mere error of judgement or skill will not be sufficient It will probably be necessary to provide evidence of reckless disregard by a defendant for the claimant’s safety
In Czernuszka v King [2023] EWHC 380 (KB), a female participant in an amateur rugby match was paralysed from the waist down. In evidence it was contended that the defendant aggressively tackled a fellow player in a manner deemed by an expert witness as “the very epitome of dangerous tackling”. Establishing negligence involves showing that the defendant owed the claimant a duty of care, which they breached in a manner that caused the claimant recoverable harm. To establish there has been a breach, the claimant must show that the defendant failed to act as a reasonable person would in their position: that they failed to meet the standard of care.The judge ruled in favour of the complainant that the defendant’s conduct had fallen below the relevant standard of care; she was negligent and was liable for the injury caused. The evidence in the case suggested that the behavior of the defendant was targeted specifically at the victim and with some animosity.
In the case of a bottlekicking game, bringing a negligence claim could potentially founder on two points:
identifying a particular defendant who was at fault amongst the melee
determining if there was any evidence of reckless disregard by a defendant for the claimant’s safety
When it comes to professional sport, it appears that what goes on in a properly adminstered and refereed game is not the purview of the courts, and further, that the rules of sports were not written with negligence claims in mind (and nor should they be). In Fulham FC v Jones [2022] EWHC 1108 (QB) a tackle, during an under 18s match, which was not penalised by a referee at the time, became the subject of a claim for negligence that was subsequently overturned by the court of appeal. The Court of Appeal judges cited Justice Tuckey in Caldwell vis: “there is no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required .
Companies are expected to comply with their statutory duty of care when it comes to employees (although the employment status of professional sports people playing for clubs is very complex and an area in which EU employment law in particular has come up in opposition to much custom and practice). The enforcement authorities may prefer to keep the issue of sports related activity at arms length (they are busy enough trying to enforce the law in Britains five and a half million businesses). One client (a ballet company) came to an informal agreement with a local authority enforcing Health and Safety that they do not need to report strain injuries suffered by dancers under RIDDOR. Similar arrangements I’m told are in place for professional footballers injured within the laws of the game. Regarding what takes place on the field of play, there is an even greater reluctance to get involved. An Appeal court quashed the conviction of the defendant in R v Barnes [2004] EWCA Crim 3246, in which a defendant seriously injured another footballer with a late sliding tackle from behind. and was initally was found guilty of inflicting GBH under s.20 of the Offences Against the Person Act 1861. Allowing the appeal Lord Justices Wolf and Cresswell and Justice Simon held:
Criminal prosecutions should be reserved for situations where the conduct is sufficiently grave to be properly categorised as criminal. Civil remedies are often available and most sports have disciplinary procedures, so prosecutions will usually be unnecessary and undesirable.
Contact sports, including football, are exceptions on public policy grounds, to the general rule that consent is no defence to bodily harm; implied consent exists where the situation is within what can reasonably be expected.
All the circumstances must be considered to determine whether the conduct is criminal. Conduct within the rules is unlikely to be criminal. [“And even” - my parentheses] conduct outside the rules may not be, if it accords with the way the game is conventionally played.
One particular point of note regarding the judgement of LCJ Woolf: “It has been long established by our courts that, exceptional situations apart, as a matter of law a person cannot consent to having actual bodily harm inflicted upon him”. The exception stated is contact sport. The best and oft considered example of this is boxing. It is a necessary aspect of participation in boxing that (unless you are Muhammed Ali, and perhaps even if you are) getting punched in the face is a thing to which you have consented. You cannot however consent to being assaulted in a manner that is outside of the rules. (This is considered along with the public policy context in a paper in 2018 by Michael Gunn and David Ormerod: The Legality of Boxing).
So far so consistent with the man on the Clapham omnibus (or rather his recent antecedent, the keyboard warrior in the Facebook comments section) that if you join in a violent sport like bottlekicking, you consent to the risk of harm (and “deserve what you get” - which is harsh to say the least). There could still be a case to answer for the bottlekickers and their ancient “sport” though. And that is if harm were suffered by spectators who were not active participants to the action. In Payne v Maple Leaf a bystander was injured by the stick of one of two ice hockey combatants during a fight (crucially they were not contesting for the puck, but settling their differences; a form of conduct to which that particular sport grants a substantial latitude).
In Wooldridge v Sumner, a photographer was injured as he attempted to protect another person sitting on a bench from an onrushing horse and rider. The Court of Appeal held that the failure to control the horse consituted ‘mere errors of judgment’ and did not amount to negligence in the circumstances. It was said that what the reasonable spectator would expect is as relevant as what the participant would expect. Diplock LJ observed that:
“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 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.’ ”
Bottlekicking remains a dangerous activity to which the spectator is at some considerable risk of injury if the scrum comes their way. Whilst there is not much chance of a negligence claim against the game itself, or its organisers or participants in general succeeding; individual behaviours of participants (most especially in this age of ubiquitous filming using mobile phones) should always - regardless of the absence of specific rules of referees - reflect “the spirit of the game”.