An overview of key case law relating to negligent liability for sports injuries (Part 1)
Published 07 October 2016 By: Laura McCallum
“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 Oldham1 (1927))
To succeed in an action of negligence, the victim must be able to prove three things:
- That he was owed a duty of care
- That that duty of care was breached
- 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.
In sport, it is not always the assailant who is open to be sued – players, clubs, governing bodies and referees can also find themselves subject to legal action, which will be explored in the case law discussed. This two-part article examines the extent of liability in negligence for sporting injuries arising in eight different sports:
Part 1 (below) looks at:
- The test for negligence
- Condon v Basi
- Pitcher v Huddesfield Town FC
- Vicarious Liability and Likely Damages in Football – The Cases
- Ben Collett (Manchester United FC) v Gary Smith & Middlesborough FC
- Deliberate intention to injure
- Alf Inge Haaland v Roy Keane & Manchester United FC
- GB v Stoke City Football Club Ltd and another
- The reasonable standard – reckless play
- Paul Elliot (Chelsea FC) v Dean Saunders & Liverpool FC
- Reasonable foreseeability
- McCord v Swansea FC
- Watson v Gray and Another
- The extent of liability post Mohamud
- AM Mohamud v WM Morrison Supermarkets Plc
- Employer Liability and the “Master’s Indemnity”
- Concussion in football
- Eva Carneiro
- The test for negligence
Part 2 (available here) continues to look at rugby, American football, motor racing, swimming, simulated rock climbing, skiing and boxing.
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 test for negligence
Condon v Basi2 (1985)
The defendant, in this case, broke the claimant's leg in what was described as a “vicious” tackle. It was held that the care afforded to the pursuer fell below the required standard of care and therefore the defendant was held liable. The Court stated that what is required for there to be liability is not necessarily a criminal reckless disregard for the safety of the victim but rather there must be something more serious than a mere error of judgement.
It was alleged, in this case, that the injury sustained to P was as a result of a negligent tackle. However, the claim failed. The Court stated that although the tackle was clearly a foul, it was nothing more than an "error of judgement" in the context of a fast moving game. The defendant had only split seconds to react to events and it was the kind of tackle you would see in the course of the game, every week. The claimant cannot succeed if he cannot show anything more than an error of judgement.
Vicarious Liability and Likely Damages in Football – The Cases
18 year old Collett was playing for Manchester United in a match against Middlesborough 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 Middlesborough 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.
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 the 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.
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. Given that, causation was not proven.
This case was historical in nature in that the alleged negligence was claimed to have arisen between 1986 and 1988 at Stoke City's training ground. It was alleged that the claimant, an apprentice, was assaulted, in an act of “gloving”,6 by the first team goalkeeper on more than one occasion. As a result of those incidents, it was claimed that the claimant had suffered both physical and psychological injuries that effectively put an end to his career. Damages in excess of £200,000 were sought for the loss of opportunity to pursue a career as a professional footballer. Due to the passage of time, the Court had to make a decision based on witness evidence and much emphasis was placed on the credibility of those providing evidence.
The claimant argued that the first team acted in a strict hierarchical manner and regularly came into contact with apprentices. Apprentice duties included undertaking routine tasks such as cleaning the first team players' boots. It was claimed that it was those tasks that invited confrontation with the first team players and provided them with the opportunity to chastise the apprentices. Given that, Stoke City Football Club should be held vicariously liable for their actions.
The Court accepted that the first team players had a different status to apprentices and exercised that status. However, the Court did not accept that the first team had any contractual authority to chastise the apprentices and the club conferred no special authority on them to do so. To accept that that was the case would be to widen the scope of vicarious liability when there was no authority to allow the Court to do so.
The Reasonable Standard – Reckless Play
As noted above, in the game of football, a case for negligence will fail if the pursuer is unable to prove something more 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.
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 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.
McCord v Swansea FC 7 (1997)
In this case, a tackle which was judged to be an intentional foul and amounted to a serious mistake was found to be a negligent act, even if it could not be described as reckless. John McCord was injured in the course of a 3rd Division match between his club, Stockport City, and Swansea FC. The match took place at Swansea's ground. The defendant's player, John Cornforth, collided with the claimant when they were both running for a “loose ball”. The Pursuer got to the ball before the defendant by less than a second. The defendant's foot collided with the Pursuer's right calf, breaking it in two places. The injury was so significant, it ended the claimant's career as a professional footballer.
Watson v Gray and Another8 (1998)
In this case, Gordon Watson of Bradford City sustained a broken leg as a result of a tackle from Kevin Gray, of Huddersfield Town. The Court asked the question whether the injury was reasonably foreseeable in light of the tackle. The Court stated the reasonable professional man test and advised that the reasonable professional player would have foreseen that the tackle carried a risk of significant injury and therefore awarded damages to Gray.
Vicarious Liability – Post Mohamud
In 2016, the Supreme Court issued its judgement in the case of Mohamud. A decision had been long awaited as it had the potential to widen the scope for vicarious liability – and could affect football clubs and other employers employing athletes.
Mr Mohamud was assaulted by a petrol garage assistant employed by the supermarket chain, Morrisons. Mr Mohamud had entered the petrol station, in Birmingham, and had asked if the assistant could print some images for him. The assistant replied to Mr Mohamud with foul and abusive language to which Mr Mohamud protested. The assistant asked Mr Mohamud to leave but when Mr Mohamud returned to his car, the assistant followed him. He opened the passenger door to Mr Mohamud's vehicle and punched him. Mr Mohamud got out of the car and the assistant punched him further, to which Mr Mohamud fell to the ground. Mr Mohamud was severely assaulted despite the assistant's supervisor pleading for him to stop.
Mr Mohamud brought a claim against the assistant's employer, WM Morrison, on the basis that they were liable for their employee's actions. The case had failed at first instance and at the Court of Appeal on the basis that there was not a sufficiently close connection between what he was employed to do and the assault on Mr Mohamud. Mr Mohamud appealed to the Supreme Court.
The Supreme Court held that the supermarket chain were liable for their employee's action. They considered the current position for vicarious liability and the close connection test which was whether the act was so closely connected to the course of his duties, under his employment, to hold the employer liable. The Supreme Court advised that it saw no need to change this test but in practice, the scope for vicarious liability has been extended. The Court stated that an assistant's role was to attend to customers at the petrol station and respond to any enquiries. The assistant's reaction was unjustifiable but the Court held that it was within the "field of activities" assigned to him. There was therefore no break in the chain as the attack followed on from the assistant's interaction with Mr Mohamud. The fact that the act amounted to gross misconduct was irrelevant and the Court stated that the employee did not "metaphorically take off his uniform" when carrying out the attack. The motive for the attack was irrelevant.
This case has significant implications for employers employing athletes. Effectively an employer can be held liable for any act where there is any link to an employee carrying out his "field of activities" regardless of the motive for that act – whether that be criminal or not. This case arguably removes the "frolic of his own" concept, a defence widely used in vicarious liability cases.
In football, it will be interesting to note just how far this could extend, especially off the pitch. A footballer does not only have responsibilities on the pitch but also off the pitch, as an ambassador of the clubs who employ them. Training in relation to behaviour, especially when coming into contact with the public, should be a top priority to ensure that clubs protect themselves from any risks associated with vicarious liability.
A further detailed analysis of Mohamud is available here.10
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 club managers are also not quick to remove them from the field of play or even stop the match to attend to them. Take the recent example of Jose Mourinho’s publicised fall-out with club physiotherapist, Eva Carneiro.
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 Premier League introduced a Concussion Protocol that 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.
For an overview of concussion protocols across professional sports leagues, please see here.11
That concludes Part 1. Part 2, available here, moves on to consider the extent of liability in negligence for sporting injuries in rugby, American football, motor racing, swimming, simulated rock climbing, skiing and boxing.
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- Tags: American Football | Boxing | Concussion | Football | Governance | Insurance | International Rugby Board (IRB) | Liability | Motor racing | National Football League (NFL) | Negligence | Premier League | Premier League Concussion Protocol | Regulation | Rock Climbing | Rugby | Skiing | Swimming | UEFA | United Kingdom (UK) | Wales
- An overview of key case law relating to negligent liability for sports injuries (Part 2)
- Who shoulders the blame? An analysis of vicarious liability in the sports industry
- An overview of concussion protocols across professional sports leagues
- The legal implications of concussion in contact sports
Solicitor, Lombardi Associates
Laura is a Scottish solicitor, having qualified in 2013. She obtained her LLB degree at the University of Strathclyde. Prior to joining Lombardi Associates, Laura was a solicitor at two major city law firms in Glasgow. Her legal experience to date spans a variety of practice areas including general dispute resolution, housing law, medical law, personal injury, professional negligence and sports law.