Johnston v Frazer

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, the defendant below, was represented by Mr T.E.F. Hughes, QC, along with Mr A.J. Sullivan, OC, and Mr S. White. The respondent, the plaintiff below, was represented by Mr B.J. Gross, OC, and Mr P.C.B. Semmler.

The central legal issue before the Court concerned the scope and content of a duty of care, particularly in the context of a highly competitive sport. The applicant argued that the established two-stage test for determining a duty of care, as articulated in *Anns v The Merton London Borough Council*, required a qualification in circumstances involving professional jockeys in a horse race. Specifically, the applicant contended that the duty of care should be limited to a duty not to inflict reckless or deliberate harm, rather than a generalized duty of reasonable care.

The applicant's submission was that the particular circumstances of a competitive sport necessitate a restriction on the scope or standard of the duty of care. This proposition was supported by reference to authorities from England, the United States, and Canada, as well as legal textbooks. The applicant cited *Cook v Cook* as an example of how particular circumstances can limit the duty of care. Furthermore, the applicant referred to *Wooldridge v Sumner* as a principal English case supporting the limitation of the duty in competitive sports to a prohibition against reckless or deliberate harm.