An overview of key case law relating to negligent liability for sports injuries (Part 2)

Published 07 October 2016 By: Laura McCallum

An overview of key case law relating to negligent liability for sports injuries (Part 2)

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. 

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 (available here) looked specifically at the issue in football. Part 2 (below) moves on to consider the following sports:

  • Rugby
    • Jarrod Mccracken v Melbourne Storm Rugby League Club and Ramsay Elshafey v Javed Clay
    • Extending liability to referees
    • Vowles v Evans
    • Concussion
  • American Football
    • Mike Webster
  • Motor racing
    • Wattleworth V Goodwood Racing Co Ltd
  • Swimming
    • Tomlinson v Congleton Borough Council
  • Simulated Rock Climbing
    • Poppleton v Trustees of Portsmouth Youth Activities Committee
  • Skiing
    • Anderson v Lyotier t/a “Showbizz"
    • Kearne v Ultima Tours
  • Boxing
    • Watson v British Boxing Board of Control
  • The Importance of Evidence in Proving a Breach of Duty 



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 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.

Jarrod Mccracken v Melbourne Storm Rugby League Club1 (2005) and Ramsay Elshafey v Javed Clay2 (2001)

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 

Vowles v Evans3(2003).

In some instances, players may also seek compensation from a referee. This 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 of Wales international, Jonathan Thomas, having to retire due to epilepsy is a stark reminder of the inherent head injury risks associated with rugby.

It is alleged that the number of concussions in the game has doubled in the last five years and that on average, one player at every Six Nations match suffered a brain injury.

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. It is claimed that this is as a result of the rugby unions calling for head related injuries to be flagged up.

Given the recent studies and media focus on the topic, the 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 that 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. 

For more on the legal implications of concussion in contact sports, please see here.4 

For an overview of concussion protocols across professional sports leagues, please see here.5 


American Football

The issue of head injuries is a topical one in the world of American football and the National Football League (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 is more likely to cause brain trauma.

A recent 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.6 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, thus, 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 have now implemented a set of guidelines called The NFL Head, Neck and Spine Committees’ Protocols Regarding Diagnosis and Management of Concussion.7 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

Wattleworth V Goodwood Racing Co Ltd8 (2004)

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.



Tomlinson v Congleton Borough Council9 (2003)

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 were aware that people would go there to swim. The lake was shallow and dangerous. The Council were 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.10


Simulated Rock Climbing

Poppleton v Trustees of Portsmouth Youth Activities Committee11 (2008)

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:

“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.”



Anderson v Lyotier t/a “Showbizz”12 (2008) 

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 weaker 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 out with 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.



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

Watson v British Boxing Board of Control 13(2001)

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.


The Importance of Evidence in Proving a Breach of Duty 

As a final note, the authors wish to stress that in order to prove a successful case for sporting injury, you must gather as much evidence as possible to support your case. Some evidence that may assist your case is:

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

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Laura McCallum

Laura McCallum

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.

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