“Games might be and are the serious business of life to many people. It would be extraordinary to say that people could not recover from injuries sustained in the business of life, whether that was football, or motor racing, or any other of those pursuits which are instinctively classed as games but which everyone knew quite well to be serious business transactions for the persons engaged therein.”
Cleghorn v Oldham [1927] 43 TLR 465

To succeed in an action of negligence, the victim must be able to prove three things:

1. That he was owed a duty of care
2. That that duty of care was breached
3. The damage suffered was caused by that breach

In contact sports, such as football or rugby, all participants owe a duty of care to one another. In order to show a breach of that duty, conduct must be reckless and fall below the standard required of a reasonably skilful and competent professional player. It must be an act that is more serious than an error of judgement. Thereafter, the injury suffered must be foreseeable. For example, it must be the type of injury that one would expect from a foul or tackle. Given that, the test for negligence in the sporting world is a high threshold to meet.

Proving a Breach of Duty

In order to prove a successful case for sporting injury, you must ingather as much evidence as possible to support your case. Below is a summary of some evidence that may assist your case:

• Photographic or video evidence
• Eye-witnesses
• Referee Opinion
• Expert Evidence

In sport, it is not always the assailant who is open to being sued – players, clubs, governing bodies and referees can also find themselves subject to legal action, which will be explored in the case law discussed.

Football

In the glamorous, big money world of football, players are considered as assets on the club’s financial books and their fitness can not only affect the club’s balance sheets but it can also cost the player personally.

The Cases

Vicarious Liability and Likely Damages

Ben Collett (Manchester United FC) v Gary Smith & Middlesborough FC (2008)

18 year old Collett was playing for Manchester United in a match against Middlesbrough FC. In the course of the game, he was tackled by the first defendant. The tackle was high and over the ball and, as a result, Collett sustained a fracture of the tibia and fibula of his right leg.

Collett pursued damages for injury, loss and damage caused by the negligence of Smith. Collett chose to pursue Middlesbrough FC (rather than Smith himself) arguing that they were liable for their employee’s actions, given that he was connected to the club and acting in the course of his employment as a professional footballer. In particular, Collett claimed for future loss of earnings as a result of not being able to pursue a successful career as a professional footballer and thereafter, as a football manager or coach.

Middlesborough FC admitted liability and it was for the Court to determine the final settlement figure.

Held:

Award in excess of £4.3 million including:

• General Damages: £35,000
• Past Loss of Earnings: £456,095
• Future Loss of Earnings: £3,854,328

Deliberate Intention to Injure

Where there is intention to apply unlawful force on the part of the assailant there can, in rare circumstances, be a civil action for trespass to the person, for assault and battery.

In the case of battery, the pursuer must be able to prove that there was an intention to apply force to the person of another. The slightest touch, without consent, constitutes battery. The problem with proving battery and assault in football and other contact sports is that the intention to harm or touch is difficult to prove given that the sports involve one player coming into contact with another player. If you are unable to prove the intention to apply force on a balance of probabilities, the action must be brought in negligence, as described above. Further, it is rare to pursue a case for battery in contact sports as most insurance policies covering sports injuries do not cover deliberate injuries.

In Alf Inge Haaland (Manchester City) v Roy Keane & Manchester United FC, Haaland was carried off the pitch at Old Trafford, in 2002, after a tackle by Keane, whereby he trampled on Haaland’s knee. By 2003, Haaland was forced to retire from football after being unable to play a full 90 minutes – claimed to be a as a result of the knee injury. In an autobiography by Keane, he alleged that the tackle had been an intentional one and that prompted Haaland and Manchester City to pursue legal action. However, it later emerged that in fact the knee had been causing problems even prior to the tackle which led to Haaland admitting that the tackle was not the root of the problem.

The Reasonable Standard – Reckless Play

In the game of football, a case for negligence will fail if the pursuer is unable to prove anything other than an error of judgement. A defender must have acted recklessly, with lack of care, so as to breach his duty to exercise reasonable care in all the circumstances.

In Paul Elliot (Chelsea FC) v Dean Saunders & Liverpool FC, Elliot sued Saunders & Liverpool FC for causing a knee injury that ended his football career. Elliot first attempted to bring a case for battery but it was later discovered that Liverpool FC’s insurance would not pay out on such a claim as the policy excluded deliberate injuries. As such, it would not be in the best interests of Elliot to restrict the number of defendants and therefore he concentrated on a claim for negligence instead. Elliot proved that he was owed a duty of care by Saunders and that he had breached that duty, given the nature of the tackle. That was accepted by the Court, but Elliot was advised that he also had to prove reckless play and as such, that Saunders had failed to exercise a reasonable standard of care in his tackle. Video evidence was submitted to the Court and considered along with evidence from match officials. The Court favoured the evidence provided by the officials in that Saunders was attempting to “play the ball” and had not acted recklessly. Given that, Liverpool FC were held not to be vicariously liable and the case failed.

Employer Liability and the “Master’s Indemnity”

A football club, if found to be vicariously liable, can apply to the Court to order the negligent employee to pay an indemnity or contribution to it as compensation for any damages the Club has had to pay as a result of the legal action (The “Master’s Indemnity”). This can also be established through the employee’s employment contract as there is usually an implied term to act with reasonable care and skill. Such compensation should be able to be paid, without issue, by a professional footballer given the significant salaries earned. This is, of course, at the discretion of the football club.

Concussion in Football

In relation to concussions on the field, more often than not players are reluctant to leave the field following injury. However, their managers are also not always quick to remove them from the field of play. It is, of course, recognised that there is commercial pressure to keep a player on the field but in some cases it is more prudent to prevent the risk of further damage.

To enable clubs to recognise and manage concussion, the English Premier League introduced a Concussion Protocol which provides that all matches must have a tunnel doctor to assist team doctors in recognising and diagnosing the signs of concussion. That doctor will be independent to the club and thus not subject to the commercial pressures associated therein. If a head injury occurs, the medical team will assess the player and he will be removed from the field of play if there has been a confirmed or suspected loss of consciousness. UEFA has also introduced similar provisions.

Rugby

Rugby is a dangerous sport with heavy body collisions between players and regularly, multiple players at any given time. Therefore, it is likely that injuries arising from such play will occur frequently. But when do they occur as an act of negligence?

Again, the focus will always be on what is expected of the reasonably competent rugby player, what care has been shown in the tackles, what is regarded as an error of judgement compared to complete recklessness and, of course, the Court will consider the rules of the game.

As discussed above, there are a number of possibilities when considering who an action can be brought against following a sporting injury claimed to have arisen as a result of negligence.

There are two cases whereby rugby players have recovered from their fellow players following injuries caused by “spear” tackles.

In Jarrod Mccracken v Melbourne Storm Rugby League Club and Ramsay Elshafey v Javed Clay, both players alleged that they were injured as a result of a “spear” tackle whereby both players were lifted off the ground and allowed to fall headfirst. The Courts, in both cases, commented that rugby is a fast moving, intense physical contest involving heavy body collisions. However, the assailants were aware of what they were doing when they lifted and upended their opponents. They had intended them to fall heavily to the ground below. Given that, the Court held that the defendants had breached their duty of care.

Extending liability to referees

In some instances, players may also seek compensation from a referee which was the focus in the case of Vowles v Evans. The pursuer, Vowles, was seriously injured during a rugby match when the scrum collapsed. A prop forward had previously left the field with an injury and the referee had permitted a flanker to take his place in the front row without enquiring as to his previous experience of playing prop. This was a breach of the rules. It was argued, by the claimant, that it was that negligence that caused the scrum to collapse. The referee argued that he did not owe a duty of care to the players. That argument was rejected by the Court of Appeal stating that Rugby is an inherently dangerous sport and some of the rules are designed to minimise the risks associated with it. Players depend on the rules to ensure their safety and it is for the referee to enforce those rules. In performing his role, a referee is expected to exercise reasonable care.

The standard of care expected of the referee is determined on all the circumstances and nature of the game. A referee of a fast moving game cannot reasonably be expected to avoid errors of judgement, oversights or lapses. Given that, the threshold of liability must be high. However, given the facts of this particular case, the Court held that the threshold had been met and crossed and the referee was found to be liable which meant that the Welsh Rugby Union was vicariously liable for his actions, given he was their employee.

Concussion in rugby

The recent headlines regarding Wales international, Jonathan Thomas, having to retire due to epilepsy is a reminder of the head injury risks associated with rugby and other such sports of a physical nature.

It is alleged that the number of concussions in the game has doubled in the last five years. In England, the number of reported concussions rose by 59% in 2013/14 and in Scotland the number of cases has nearly doubled in the last two years. However, this rise can perhaps be attributed to the rugby unions themselves calling for head related injuries to be flagged up.

Given the recent studies and media focus on the topic, rugby governing bodies have introduced guidelines and protocols in relation to the risks associated with head injuries. Both English and Scottish Rugby Unions are trying to make the game safer and increase awareness of concussion.

The International Rugby Board has introduced the Head Injury Assessment protocol which includes a ten minute assessment procedure. There is also a compulsory online module for players, coaches and officials and mandatory concussion management training for medical staff. The management of confirmed and suspected concussion is also subject to an independent review by no less than two experienced independent medical practitioners.

American Football

The issue of head injuries is a topical one in the world of American football and the NFL. It has recently been decided by an American Court that the NFL will pay out $765m to former players following concussion related claims.

In American football, it was argued that the protective equipment such as helmets and shoulder pads gave a false sense of security to players. Given that they were wearing so much protective equipment, players were found to more likely make head-to-head tackles, colliding with each other’s helmets as they considered they were safe to do so. However, although a helmet may protect against a broken skull it does not prevent fast and sharp movements to the head which are more likely to cause brain trauma.

A study in 2002 by Dr Bennet Omalu found that brain disease in former players was linked to their time spent as professional players. An autopsy was carried out on former Pittsburgh Steelers centre, Mike Webster, who died aged 50 and suffered from dementia and depression. Omalu was able to identify, through his studies, severe degeneration in Webster’s brain and, following further autopsies on other former players, he discovered similar symptoms. He published his findings on the sport and its long term effects.

In 2015, actor Will Smith, announced that he was to star in a new film aptly called “Concussion” which would highlight and detail the story of Dr Omalu (played by Smith) and his findings in relation to head injuries in the NFL and their long term effects.

The NFL was not quick to accept Dr Omalu’s findings but following the concussion legal claims, the risks are now more widely recognised and the NFL has now implemented a set of guidelines called The NFL Head, Neck and Spine Committees’ Protocols Regarding Diagnosis and Management of Concussion. The guidelines address the management of head injuries in the game and also introduced the presence of an unaffiliated Neurotrauma Consultant during matches. However, the final diagnosis of head injuries and how to address that during the game still rests with the non-independent club doctors.

Adventure Sports

Many adventure sports, such as motor racing, skiing, mountaineering, rafting, rock climbing and many others have inherent dangers. That is part of their appeal. So what can you expect when you try to claim for an injury arising from such dangerous sports where the risk of injury is increased. We address some common adventure sports below:

Motor Racing

In the case of Wattleworth V Goodwood Racing Co Ltd it was held by the Court that the Motor Sports Association owed a duty of care to a driver who was killed whilst participating in a track day event. The association had advised Goodwood (the owner of the track) of the suitability of a track barrier at the accident location and thereafter granted a licence so that Goodwood could hold MSA events. Wattlewroth was not participating in a MSA event but that it was reasonably foreseeable that an unsuitable barrier would cause injury to those using the track during any event, whether it was a track day or not.

Swimming

Tomlinson v Congleton Borough Council

Congleton Borough Council owned a public park in which there was a disused quarry that had turned into a lake. In the hot months, the Council was aware that people would go there to swim. The lake was shallow and dangerous. The Council was aware of the dangers and employed park rangers and put up notices in prominent places. Safety leaflets were also distributed. Unauthorised swimming still took place. In a bid to tackle the unauthorised use of the lake, the council began works to plant over the beach areas. Just as the work began, the pursuer, an unauthorised swimmer, dived into shallow water suffering life changing injuries.

The case went to the House of Lords who found in favour of the defendant Council and stated:

“I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair.”

Simulated Rock Climbing

Poppleton v Trustees of Portsmouth Youth Activities Committee

Poppleton attended a indoor climbing arena in Portsmouth to take part in a low level simulated rock climbing experience, without ropes. Poppleton was a young and inexperienced climber. The climbing wall rose 16 feet above floor level at its highest point. The floor was covered with shock absorbent mats. Poppleton was not shown any rules nor was he asked to sign a disclaimer notice. He was given no instruction nor were any risks discussed with him. The climbing centre also failed to check Poppleton’s experience.

Poppleton watched other climbers jump off of the walls and climb onto steel girders. Poppleton did not appreciate that that activity was not allowed. He attempted to imitate one climber, whom he saw jump back from the back wall and grab on to a girder, and as he did so, he fell and landed on his head. He was significantly injured as a result of that action and left tetraplegic.

Poppleton attempted to argue that the risk in the activity should have been communicated to him as well as the fact that the shock absorbent mats would not protect against all types of injuries.

The court stated the following:

“Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured …. There being inherent and obvious risks in the activity which Mr Poppleton was voluntarily undertaking, the law did not in my view require the appellants to prevent him from undertaking it, nor to train him or supervise him while he did it, or see that others did so. If the law required training, or supervision in this case, it would equally be required for a multitude of other commonplace leisure activities which nevertheless carry with them a degree of obvious inherent risk – as for instance bathing in the sea.”

Skiing

Anderson v Lyotier t/a “Showbizz”

Anderson was a relatively experienced skier. During a skiing holiday, he purchased some skiing lessons. During the lesson and whilst skiing off piste, he collided with a tree sustaining a tetraplegic injury.

Earlier in the week, and during another lesson, the class had gone off-piste with the instructor and Anderson had found that difficult. It was recognised that Anderson was one of the weakest members of the group in terms of experience and ability. The off-piste skiing on the day of injury was more difficult than the previous lessons.

It was held by the Court that the instructor should have taken account of the needs of Anderson given that he was one of the weakest members of the group. The instructor should have recognised that the slope was outwith his capabilities. However, the Court also held that given Anderson was an adult, he should have voiced his concerns.

The Court held that the ski instructor was primarily responsible for the accident but that Anderson was contributory negligent for failing to inform the instructor of his concerns. His damages were thus reduced by 30%.

Kearne v Ultima Tours

Kearne was a 15 year old pupil who was on a school skiing holiday in Austria. The package holiday also included skiing lessons as well as flights and accommodation. Kearne was a beginner and put in a novice ski class. The instructor advised the class to descend a blue run which was steeper than any others she had skied before. She had only done 6-7 hours of skiing previously and was regarded as one of the weakest in her group who was not always in control of her skis.

Whilst descending the run, Kearne lost control of her speed and direction and was unable to stop. She descended into the ski centre’s car park and collided with a parked car.

A number of issues were addressed at trial:

Did the instructor make an accurate and reliable assessment of the Kearne’s ability?
Did Kearne contribute to her injuries through her own negligence?
Was the slope appropriate given Kearne’s capabilities?

Ultima Tours conceded that it was responsible for the proper performance of its obligations under the Package Holiday Regulations.

The expected standard of care was determined by the International Ski Federation rules which state

“Ski schools, instructors and guides must never allow their pupils to take any risk beyond their capability especially taking into account the snow and weather conditions.”

The Court held that the instructor failed to provide the necessary supervision and tuition to comply with the relevant guidance. Further, Kearne had not demonstrated the required level of performance and capability for the instructor to make a reasonable decision to move the class to the blue slope. The tour operator was therefore found to be liable for the accident.

It is important to note that the actions of skiers will be assessed according to the practice and law of the country in which the accident occurs.

Boxing

The inherent risks involved in boxing require no introduction but the personal injuries sustained during the sport require to be adequately managed and treated.

The leading case in that regard is Watson v British Boxing Board of Control.

Michael Watson sustained a sub-dural haemorrhage resulting in irreversible brain damage during his World Boxing Organisation title fight with Chris Eubank. The injury left him with a left sided partial paralysis, amongst other things. Evidence was led that showed that the injuries had been significantly worsened because immediate resuscitation equipment was not available at ringside. The British Boxing Board of Control was the regulatory body with sole responsibility for the rules governing boxing and the way in which the match was organised.

The Court held that the Board was liable for not providing a system of appropriate medical assistance at ringside. The Court formed the view that boxers were unlikely to have a well informed concern about their safety; that the Board had special knowledge and knew that boxers relied on their advice and that since 1980, there was standard response to sub-dural bleeding agreed but that it was not introduced by the Board.

“In contrast the injuries which are sustained by professional boxers are the foreseeable, indeed inevitable, consequence of an activity which the board sponsors, encourages and controls. The conduct of the activity of professional boxing carries with it, for the small body of men that take part in it, the need for the provision of medical assistance to treat the injuries that they sustain and minimise their adverse consequences.”

Get in touch

If you would like to discuss any of the issues raised in this article, please get in touch.