Identifying, Assessing And Critiquing The Development Of Notions Of Bodily Integrity By The Courts Involving Criminal And Civil Matters Pertaining To “In Game” Injuries However So Caused.
The perception of the notion of “bodily integrity” has changed over time throughout the twentieth and twenty-first century with many academics and judges having differing views on the definition of this notion. English academic Martha Nussbaum created the first definition of this notion of “bodily integrity” that seemed to be accepted throughout the english legal system. In which she emphasised that it is the “the importance of personal autonomy and the self-determination of human beings over their own bodies”. However other academics and particular judges seem to still disagree with this and other credible definitions of “bodily integrity” and tend to build on or loosen the definition in order to for it to fit with certain cases being decided in court. This makes the measure of development of the term “bodily integrity” within the courts a real grey area. Particularly in regards to matters involving criminal and civil matters pertaining to especially “in game injuries” due to the high profile cases which have come of this. As such this essay will look to identify, assess and critique the development in relation to “bodily integrity” undertaken by the courts involving criminal and civil matters relating to “in game injuries” however they are caused. This will be achieved by looking at relevant cases, judges opinions and academic opinions in relation to analysing and critiquing the development of the “bodily integrity”.
The relationship and the interaction between sport and the law is one that often depends on the situation which is brought before the courts. As such some “in game injuries” in relation to “bodily integrity” may apply to either or give rise to criminal prosecutions or tortious actions. The main difference between these two is one relates to claiming compensation (tort) and the other involves the state punishing wrongful behaviour (criminal). In certain situations (in game injuries) there is fine line as to whether it should be tried as criminal or civil case which hinge on the nature of this case. The use of tortuous law by players and clubs in trying to gain compensation is the most common example of sport and law being fused together to make the law more accessible on a sports level basis (negligence). As such negligence remains the largest area within tort law with the most case examples relating to “bodily integrity” in relation to in game injuries. As established by the case of Caparo Industries Ltd v Dickman and a range of other cases the main elements to establish a claim for negligence are a Duty of Care, Breach of Duty, Causation and remoteness. In the case of Conden v Basi relating to a Duty of Care the in game injury happened during a local league football match when the defendant “recklessly” tackled the claimant and broke his leg. In relation to the notion of “bodily Integrity” the court went into some discussion relating to this. For example Barwick CJ states in relation Duty of Care involving “bodily integrity” that “although athletes should accept the risks which are inherent to a sport”. In essence the judge in this case in relation to the notion of “bodily integrity” that athletes are granted their personal autonomy over their own body when playing the specified sport as well as partly giving athletes the right to their own bodies up until a certain point. As such this particular direction being given by the judge which interplays with “bodily integrity” does have a particular underlying notion that the Barwick CJ seems to allude to. This seems to imply that there is a certain point where Duty of Care comes into play within the means of the specified sport and it’s rules and regulations. Academic Oliver Strong points out and praises “Barwick CJ for pointing out that athletes do have such rights”.This particular praise seems to be very relevant in regards to this area of the law as it can safely be said that some judges would not even mention let alone imply the notion of “bodily integrity” such as Barwick CJ. As such the underlining of “bodily integrity” would also apply to the athletes in match situations but only after the rules and regulations seem to have been disregarded or crossed (in this particular case the rules of football). However there does seem to be a lack of clarity by the court in this case in regards to outlining their understanding and legal parameters of “bodily integrity” and it’s legal connection with a duty of care especially by judge Barwick CJ.
This issue of clarity displayed by the court when acknowledging the notion of “bodily integrity” in regards to the rules of specific sport opens up the question as to whether they did consider this issue in enough depth. This would have at the time created a clearer picture in terms of where athletes stand in relation to their “bodily integrity” and their subsequent duty of care when considering the rules of the sport in question. This in effect also shows the little and slow development the courts have made on this notion when there seemed to be a chance to really clarify the situation at hand in regards to athletes and their “bodily integrity”. However Barwick CJ does also imply in relation to “bodily harm” and a duty of care that “the extent of the duty also depends on certain circumstances”. This on the other hand seems to imply a slightly thoughtful approach by the judge regarding in game injuries pertaining to bodily integrity. However again what is apparent when the court were considering this issue is a real lack of depth and guidance on the issue of bodily integrity and a duty of care and as such docent show much development by these judges in this area of the law. This opens up the question as to what the court and Barwick CJ were thinking of when mentioning that circumstances play a part in their decision. The wideness of the term used in “circumstances” as such can be portrayed as anything by other judges sitting in different cases in relation to bodily integrity and duty of care. Academic John A Newton emphasises the point that “clarity is key in judging situations such as this”. As such this opens the possibility of having inconsistent decisions within the court an therefore not providing the fairness that some claimants genuinely need and deserve in relation to in game injuries harming their bodily integrity as such the notion of bodily integrity came under further uncertainty within the courts at this point. To add to the confusion within the judgement already Barwick CJ also states that these circumstances are “not definitive in relation to the extent of the duty owed”. Academic John A Newton also makes the point that this “just underlines the uncertainty around the case”. This contradictory statement by Barwick LJ in that by implying the notion of bodily integrity and the subsequent duty of care depend on circumstances such as the rule of the specified sport but are not definitive invites inconsistency within the law. It was also a poor choice of words by the judge at the time bearing in mind the way the case would have been looked at in terms of it’s rationale and the structure in which the decision was decided in relation to in game injuries by future judges in similar cases in the future. From a legal academic perspective the reasonable thing the judge could have done in this situation was to make clear what exactly what circumstances can be classed as being “definitive” in order to make a clear the development and definition of bodily integrity in game situation where a player gets injured. However as said before this would not be enough to increase the clarity in the law as such the inclusion of certain legal parameters and guidelines would have helped in showing a clear path of development in relation to making clear to athletes and clubs about the notion of bodily integrity and a duty of care. This begs the question as to whether the court and in particular Barwick CJ approached the situation in this case about bodily interiority and duty of care with the due care that was needed in establishing the right precedent and development for the notion of bodily integrity. It is also interesting to note judge Kitto J’s open minded approach to bodily integrity and duty of care relating to in game injuries in this case compared to Barwick Cj’s approach which was quiet secluded. Kitto J made the point that players “are under a duty to take all reasonable care taking account of the circumstances in which you are placed”.
When assessing this judges approach it can be said that there is more clarity in regards to mapping out what exactly is the threshold in determining when a players bodily integrity is being violated against in a match situation. However KItto J also makes clear the certain drawbacks in this situations by asserting like Barwick LJ that football is a contact support therefore players are more likely to get physically hurt in turn showing a slight development in the notion of bodily integrity from judge to judge. However Kitto J also makes the point that “circumstances” must always be considered without going into great deal about what kind of circumstances therein blurring the lines of the concept of bodily integrity again. This again brings up the point about a lack of guidance in relation the judges but the law overall as well. As such at the time would have likely brought about inconsistencies within the court with no singular direction to follow in regards to bodily integrity in game situations with the lines being blurred due to different approaches being taken by the judges in cases such as this. However it is worth noting in regards to judges Barwick CJ and Ketto J that although they took different different approaches which affected the clarity of the law their underlying message seems to be relatively the same. This is that the concept of bodily integrity only comes into existence when the rules of the specified sport are violated, which can be difficult to establish fighting sports such as boxing. However the legal based disagreements between the judges show an inconsistency which at the time was not needed in a case of this magnitude about the relatively unexplored notion of bodily integrity therefore showing a certain confusion over firstly showing lack of definition in regards to the definition over the notion of bodily integrity. As such not showing an particularly all round rounded perspective on it.
In relation to the Duty of Care regarding the notion of bodily integrity based on in game situations there is an important questions to ask relating to the “lack of guidance” brought to light in Condon v Basi. This question involves asking what is exactly the appropriate standard of care for participants and players in sports? As such asking at the same when can it be classed as a violation of a players bodily integrity in game situations? The answering of these particular questions s what was absent from the judgment of Barwick LJ, Kitto J and Donaldson MR in the case of Condon v Basi as the principles of duty of care and bodily integrity are closely to each other. When assessing these questions the early case of Rootes v Shelton is a worth examining due to the fact that Kitto J also passed judgement on this case as well. In this case a water skier sued the driver of his boat due to him colliding with a boat during a display which led to Kitto J to identify a “general standard” of care. However the rationale behind which Kitto J made this decision can be seen as questionable to say the least in relation to establishing a duty of care and the notion of bodily integrity. Firstly it is worth mentioning that Ketto J has provided no specified definition in relation the phrase of “general standard of care” which in itself invites inconsistency as to when a players bodily integrity or duty of care has been violated. However it must be remembered that this is quite an early attempt by the courts in this respect but it must be noted that the Ketto J makes a very similar “mistake” in relation to this aspect of the law in the Condon v Basi case. When looking at the rationale as a whole it seems to be clear that this “general standard of care” would not be applicable in relation to it’s clarity and practicality. In terms of a duty of care and the notion go bodily integrity “individual facts” as provided by Ketto J in fact shows very little if any development by the court due to the fact individual incidents can vary so drastically. This also shows a certain lack of confidence in the court at the time due to the need to add different aspects. In order to establish the correct legal lines in for bodily integrity and as such appropriate legal structure towards a duty of care which would also see the court keep up human rights. Academic Leonardo White makes the point that the court “should have provided more guidance relating to individual facts which are to be considered”. This guidance as such would have portrayed a “slight” development and precedent within the law relating to bodily integrity. However there is a school of thought that the consideration of “individual facts” in fact helps gives judges by establishing or even being able to consider the concept of bodily integrity in detail. As such this opens the questions as to whether the consideration of “individual facts” would help the development of the notion of bodily integrity within the law. In relation to the circumstances mentioned by Ketto J it must be mentioned that there is very little detail given by the court in understanding when a violation of bodily integrity takes place in game situations. It must also be mentioned that the consideration of individual facts should be under “circumstances” and therefore keeping the two entities separate would have provided confusion to judges using this case as precedent when considering their cases in the future. This also makes the rationale and judgement given in the Condon v Basi case rather more incomplete. As the judges in that case had the chance to show a steep development in recognising bodily integrity by providing guidance in relation to circumstances along with the idea of conjoining individual facts and circumstances. As such there are pros and cons to this situation created by Ketto J in establishing a duty of care in game situations for participants as well outlining certain requirements to be met for the notion of bodily integrity. However it is conceivable that the consideration of individual facts could in fact blur the lines for some judges when deciding whether a participants bodily integrity has been violated. This could ultimately lead to a certain problem with consistency within the law which in turn could produce unfair decisions for participants whose bodily integrity has been violated. Ketto J also points out in his rationale that the law test of reasonable conduct must also be considered for duty of care and the concept of bodily integrity. It must be said here that this can be seen as quite an innovative step taken by the judge in order to find the fairness which is required for participants in sport in a game situation. This kind of step taken is something that is needed on a regular basis in the courts today as judges in this day and age often air on the side of caution when faced with decisions which could effect other cases. However it must be pointed out that lack of clarity shown in this test of reasonableness has often had mixed results which underlines and demonstrates why this would not work in an area of law which already promotes consistency in relation to the important concept of bodily integrity. As a whole this approach by Ketto J does provide a blueprint in relation to how to approach certain situations involving bodily integrity however the chances of this approach causing inconsistency within the law as such would not work in today’s courts without tweaking the law slightly to accommodate the certain requirements mentioned by Ketto J. As such it can be said although this approach shows little development towards the concept of bodily integrity a different approach using the same requirements could bring the consistency within this area of the law regarding bodily integrity and an appropriate form of duty of care.
Another early attempt by the courts in dealing with an appropriate standard of care and the notion of bodily integrity can be seen in the case of Woolridge v Sumner. In this case a horse rider competing in a show lost control of the horse he was riding and hit spectators one of which was a spectator. In this case the standard of duty was discussed in the manner of it being a “reckless disregard” in relation to the bodily integrity of an athlete in a game situation. Judge Diplock LJ states that “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 a game”. This approach taken by Diplock LJ and the rationale used seem to be questionable when relating to the notion of bodily integrity. The element of “risk” being referred to does not seem to inspire much confidence when assessing the drawbacks of what can be considered as a violation of a players or spectators bodily integrity due to the term being as wide as it is with no actual guidance given in that respect. In essence Diplock LJ seems to be making the point similar to the one made in Condon v Basi which is that the law seems to accept that in playing different sports there is a certain amount risk involved only after when the specific incident goes beyond the risk involved is when the court will take a look at imposing a duty of care and as such a applying the notion of bodily integrity to the case. As such it is important to note that it again shows the sheer lack of development by judges in the court after this as they had the perfect opportunity to show a development towards bodily integrity. This should have been done through providing guidance and making clear when exactly a player or spectators have had there bodily integrity violated in a game situation. Looking at the reasoning in this case as a whole it can be said that the approach taken would not be applicable in today’s courts due to a lack of clarity but also a the changing times around different sports because of different governing bodies offering more and more protection to players and spectators. However it must be remembered this was an “early attempt” by the courts in dealing with what can be complicated situations in a duty of care and the notion of bodily integrity. Academic John Williams concludes in relation to this early attempt by the court in dealing with concept of bodily integrity that “it shows real flaws and ones if they were used in today’s legal system would invite all sorts of practicality issues”. These practicality issues being referred to would ultimately lead to inconsistency within the courts decision making regarding cases of a similar nature. This would in turn lead to the concept of unfairness being developed within the courts due to the uncertainty seeming from inconsistent decisions. As such it would be reasonable in a sense to conclude that the approach taken by the courts in this case has not developed the law enough or at all regarding the notion of the bodily integrity of players or spectators and therefore subsequently the standard of the duty of care they should be owed.
In trying to fully assess the extent of the development by the court other cases and their rationales must be considered. A relatively recent attempt by the courts in dealing with the notion of bodily integrity is shown in the case of Elliot v Saunders & Liverpool Football Club. Ultimately in this case the court found there to be no breach of duty and subsequently no violation of the players bodily integrity. This was due to the school of thought held by the court that the defendant (defender) was attempting to play the ball. Academic Alison Wentworth makes the point in relation to this case that “it should show a considerable amount of development within the law relating to the appropriate standard of care”. The court in this case used a more measured approach in determining which standard of care would be appropriate to apply to this case by using the decisions and rationales in cases from before in looking at the concept of bodily integrity as well. This approach also allowed the court determine relatively early on in the case that there was no reasonable standard of care in the tackle by the defendant on the claimant. This already shows that the court were thinking of judges in future cases as there could be structure in place to deal with these types of cases. Drake J the judge in this case approached this case in the way he did due to the failings over previous cases such as this and was therefore mindful of the potential problem with consistency already within this area of law. It is also in and th teresting to note that the standard of care recognised in the Condon v Basi case was completely rejected out of hand by Drake J mainly due it’s incompatibility with the present situation. Once again the structured approach by Drake J is very clear due to the judges determination to consider every possibility of the right “right standard of care” in relation to the concept of duty of care the subsequently the notion of bodily integrity. Academic John Williams also praises Drake J in this cases for noticing “the deficiencies in the approach an structure” in relation to the case of Condon v Basi. Drake J also recognised there must be a higher standard of care for cases such as this by putting forward the highly controversial idea that players duty of care should be based on what level they play at. This however should arguably be presented the other way around due to that fact that there is a tendency for the game to be more rough down at the lower levels as a result this seems to be first misconception by Drake J. With there being arguably being too much focus on providing clarity to the law rather than looking the actual concept of protecting a players bodily integrity in court. This subsequently led to Drake J in establishing a new standard of care by the name of a generic reasonable care “once size fits all standard”. When looking into this deeper this type of standard of care had the potential to create many problems within this are of the law. This can be due to the fact that the judge has provided no definition and very little insight into how this can be applied and very little guidance in applying this kind standard of care. This would as such cause confusion in future cases and subsequently create a consistency problem with the law or in fact make it worse. However it must be remembered the positive approach taken by the judge in this case with the only inadequacy being the definition and lack of guidance in relation to the new standard of care. This as such also shows a steep development by the court in dealing with cases revolving around the notion of bodily integrity and how to approach such cases. This positive and structured approach in dealing with cases about a potential violation of bodily integrity by Drake J is improved on even further in the case of Caldwell v Maguire and Fitzgerald which ultimately show a steep development within in the law that can be bring consistency and fairness together in all civil cases revolving around the notion of bodily integrity.
In conclusion when looking at the different approaches the courts has taken from the early 1960’s to the early 2000’s. It is quite clear that the courts did not make things easy for themselves when assessing the standard of duty of care and notion of bodily integrity. From unnecessary inclusion of certain requirements and to problems with clarity it is fair to say that the relevant law did not inspire much confidence early on that led to problems with consistency. However the later approaches as the ones taken in the case Elliot v Saunders & Liverpool Football the courts took slightly more structured approaches in relation bodily integrity. Which have provided the platform to provide consistency and fairness in relation to this area of the law. Although it must be said that the areas for discretion and development still present in the current law still threaten the steep development already achieved by the courts themselves.