Sport, safety and participation – the year in review 2018/19Prof Mark James
The application of the law to sports injury cases has continued to develop incrementally, as it has since the mid-1980s. The main cases have reinforced that adults who participate in dangerous activities do so, for the most part, at their own risk, but that novices and children should expect a greater degree of protection from injury from their coaches and guardians.
From the general law of negligence, the most important development is the continued expansion of the scope of vicarious liability. In particular, the concept of vicarious liability now clearly extends to personnel who, in most other legal scenarios, would not be considered to be in any way employees of the organisations held ultimately responsible for the injuries caused to a claimant, including specifically independent contractors. Although these cases have not involved sports, the potential for sport to be captured by the extended scope of vicarious liability is significant. The ongoing investigations into historic sexual abuse in a number of sports, and bullying in others, could provide a near perfect setting for the application of the law in a way that captures the members of a club’s extended "family" who were not strictly its employees. Wherever there was a sufficiently close connection between the assaults committed by a coach, trainer, scout or medical professional and the activity for which they were engaged by the club, then liability may now be established vicariously. This could also be argued to extend to assaults committed by employees engaged in non-playing activities with, for example, fans at club events.
This article examines the key UK case law and trend developments affecting sports safety and participation over the past twelve months, together with the themes to watch going forwards. Specifically, it looks at:
Developments in the duty of care owed to athletes and sports participants;
Fraudulent claims for compensation; and
The impact of the expansion of vicarious liability on sport
Developments in the duty of care owed to athletes and sports participants
Courts continued to reinforce the modern trend that adult participants compete in dangerous activities, to a significant extent, at their own risk, by building on the remarks of Lord Hoffman in Tomlinson v Congleton BC, where his Lordship stated that:
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 chose 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.1
Likewise, if people want to engage in off-road motorsports and mountain biking, that is also, to a significant degree, their affair. In Clarke v Kirwan,2 the claimant was a participant in the Keilder K2 Rally, an all-terrain event that provided motorbike riders with an opportunity to test their skill and endurance with like-minded enthusiasts. It was not, nor was it intended to be, a competition or race between participants and no prizes were awarded. A short way into the first circuit, the claimant lost control of his bike as he attempted to overtake another rider on a bend and at a speed in excess of the track’s prescribed limit. By driving on the looser surface towards the edge of the track, his bike skidded off the road and into an open ditch, causing him to suffer extensive injuries to his spine and wrist. The claimant claimed that the track was unsafe, that there should have been clearer and better warnings about all hazards on the course, both natural and unnatural, and that the amount of dust being thrown up by the bikes in front of him rendered the track inherently unsafe. The court held that it was for the individual rider to adjust his speed to meet the conditions, including that visibility was reduced by the dust thrown up by bikes in front of the claimant, in just the same way as any motorist has to do on the open road. There was no duty to enforce the speed limit set, nor to provide warnings about all of the track’s hazards, nor to clear any hazards from the track. These were all part of the reason why riders sought to participate in the Rally and were, therefore, inherent risks of this category of motorsport.
A similar conclusion was reached in the mountain biking case of Hood v Forestry Commission.3 This time, the claimant was injured after losing control of his bike whilst exiting a wooden boardwalk. The court held that the mountain bike trail had been designed to provide both a thrill and a challenge to riders and that, as a result, dangers were always going to be present. As the claimant had willingly accepted these risks, the cause of his accident was his misjudgement of the execution of the manoeuvre on exiting the boardwalk, not any problem with the trail itself, or its condition.
In contrast, where the risks are neither inherent in the activity, or where through youth or inexperience the claimant ought to receive specific guidance, support or training, the courts have been much more prepared both to find that a duty of care is owed to the claimant and to impose liability for its breach. This ensured that a novice bobsledder and a crazy golfer were successful in their claims against their coach and temporary guardian respectively.
Shone v British Bobsleigh Limited4 involved serious spinal injuries caused to a novice bobsledder at her first training camp and who was descending a championship run for the first time. The first sled used by the claimant was properly fitted with foot pegs and handles so that she could brace properly during the descent and in the event of a crash. On the second day, however, she was asked to act as the brakeman for a different driver in a bobsleigh configured for someone 10cm taller than she was and in which she could not brace effectively. This new partner would also be starting from the top of the run, another first for the claimant, which would result in her travelling at a much higher speed than she had done previously.
The defendant owed a duty of care to the claimant to take all reasonable steps to ensure that she was reasonably safe when riding in a bobsleigh. This duty was breached by the defendant, through the actions of its manager, by allowing a frightened novice to slide when the manager knew she could not brace with her hands or feet and felt unsafe. Although the claimant was not required or ordered to slide with the new partner, it should have been obvious in the circumstances that she felt under pressure not to let the team down and had no real choice in the matter. Volenti (to a willing person, injury is not done) was not operable, as it was not a defence to say that the claimant could simply refuse to go down the run. The claimant certainly did not consent to the defendant’s breach of duty in allowing her to slide when she had an inadequate hand hold and could not brace with her feet. Thus, as correctly installed hand and foot bracing would have reduced the chances of her being partially ejected, it was more likely than not that her injury was caused by her inability to brace properly and keep her body within the sled's confines when the accident occurred.
Shone is similar in approach to Anderson v Lyotier, Lyotier & Portejoie5, where it was held that an experienced coach should use their knowledge of an athlete’s levels of skill and confidence to override the decisions of an inexperienced and/or concerned athlete in matters of personal safety. The relationship between coach and athlete is symbiotic, not all one way. Athletes may need testing to the limits of their abilities in order to improve, but they should not be pushed dangerously beyond those limits when they lack the necessary skills, confidence, or both.
In a much less formal situation, a child claimant successfully recovered damages from both the operator of a crazy golf course and the adult who was supposed to be looking after them.6 A party of four boys were playing golf for one of their birthdays, with the parents of the birthday boy, JB, supervising for the day. JB was known to be boisterous and impetuous and, when not able to play as well as he was hoping to, he took a full-blooded backswing and hit his friend in the eye, causing him to go blind. The operator was held liable for a failure to give any instructions to users of the crazy golf course, and in particular, failing to warn people of the dangers associated with swinging the putter too vigorously and of standing too closely to the person whose turn it was to play. The court held that this was simply requiring the operator to take ordinary and basic steps to avoid foreseeable risks. JB’s mother was also held liable. She was present at the edge of the course, but was neither supervising the children closely, nor had given then any guidance or warnings about how to use the putters. In the absence of instructions from the operator, and not going round the course with them, and in the knowledge of her child’s boisterousness, it was reasonable to expect JB’s mother to give firm and clear instructions not swing his club.
Fraudulent claims for compensation
In line with developments connected to insurance claims more generally, insurers are now conducting additional checks into whether or not a claimant is exaggerating, or completely fabricating, their claim. In McDaid v Walsall MBC,7 an enthusiastic amateur athlete had what would otherwise have been a legitimate personal injury claim dismissed because he had overplayed the degree of injury that he had suffered and had held back important medical and sporting information. The claimant’s original injury occurred when he was running along a footpath and put his foot into a 10cm deep pothole, lost his footing and badly twisted his ankle. Walsall MBC admitted that there had been a breach of their duty to maintain the path, but argued that in accordance with Section 57 Criminal Justice and Courts Act 2015, the claim should be dismissed for fundamental dishonesty.
The dispute centred on alternative versions of the claimant’s sporting capabilities post-accident. On the one hand, the claimant stated that he had begun his return to athletics, had tried to return to cycling and could run up to five kilometres, but was not yet ready to resume rugby. The defendant countered that it had discovered that the claimant had actually been undertaking training for triathlons, half marathons and full marathons and was, therefore, capable of running, cycling and swimming considerable distances. In paragraphs 81-83, the claimant is listed as having engaged in the following:
Triathlons: Lichfield 2014, Walsall 2015;
Iron Man: Staffordshire 2015 and 2017;
Half-marathons: Birmingham 2015, Staffordshire 2016;
Marathon: Greater Manchester 2016.
There was also evidence that he had being playing rugby in 2016. The court considered that the claimant had deliberately downplayed the level of physical activity that he was able to engage in an attempt to maximise the damages awarded. Thus, reluctantly, the court held that the claimant had been fundamentally dishonest in relation to the primary claim for personal injury compensation. The claimant had a genuine claim, for a genuine injury, that genuinely had a lasting impact on his life, but had his claim dismissed because he had sought compensation for an injury that was much less serious than he claimed.
The impact of the expansion of vicarious liability on sport
The law of vicarious liability has expanded in scope dramatically over the past 20 years.8 The original aim of vicarious liability was to make employers responsible for the injury-causing conduct of their employees. The justification for this was that if the employer was going to receive the benefit of the employees work, then it should also bear the risk of any wrongdoing committed by them whilst doing their job. A series of cases, culminating in Barclays Bank Plc v Various Claimants,9 has both clarified and extended the law to capture not only employees, but anyone with a close employment-like connection to the employer. In the Barclays case, the circumstances in which it will be appropriate to impose liability vicariously on an organisation were described as where:
the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
the employee's activity is likely to be part of the business activity of the employer;
the employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee;
the employee will, to a greater or lesser degree, have been under the control of the employer.
The term "employee" as used here is defined much more widely than in other areas of the law and captures not just the employees of the employer, but also self-employed and independent contractors who are undertaking work on behalf of, or at the behest of, the "employer". In Barclays, the bank was held liable for the sexual assaults committed by an independent doctor who was performing employment-related medicals on Barclays’ employees and prospective employees.
The importance of this decision for sport, particularly in light of the many ongoing investigations into historical sexual abuse, cannot be underestimated. It means that anyone working for, or on behalf of, any club or other sporting organisation can now be considered to be an employee if the above five criteria are met. This could expand the liability of sports employers to include the injurious or abusive activities of, for example, any coaches, trainers, scouts, ambassadors or medical staff who were not technically employees, but for whom an employer can now be vicariously liable.
When read together with Bellman v Northampton Recruitment Ltd,10 sports employers should be further worried. The defendant employer was found to be vicariously liable for the violent assault carried out by its managing director on the claimant employee at a late-night drinking session in a hotel following the workplace Christmas party. This extends the kinds of activity that counts as being "in the course of employment" beyond the actual performance of the job for which the misbehaving employee is employed. This could include harm caused by the employee, as defined in Barclays, committed on the claimant at social events, fan engagement events, training camps, holidays and sleepovers. As the evidence against the various abusers begins to come to light, the tortious liability of the clubs with which they had close connections becomes a genuine prospect.
It is likely that the ongoing investigations, prosecutions and potential civil actions arising from the various investigations into historic sexual abuse will continue to dominate discussions in this area in the coming year. However, there are some other issues to continue to look out for. Last summer, research was published in the USA discussing whether heading in football should be banned, on the grounds that the risk of concussion is too great.11 On the ground, the debate still continues about whether crumb rubber pitches are safe. The Telegraph has been very supportive12 of the work being carried to prove a risk between playing on crumb rubber pitches and cancer, whilst The FA is yet to be convinced13.
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- Tags: Athlete Welfare | Dispute Resolution | Duty of Care | Employment | Football | Fraud | Governance | Negligence | Participation | Regulation | Safety | United Kingdom (UK) | Vicarious Liability
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About the Author
Professor Mark James re-joined Manchester Law School in January 2016. He began his academic career at Anglia Polytechnic University on a research scholarship, examining the scope of the consent given by participants in contact sports to injury-causing challenges. His first appointment at Manchester Metropolitan University was in 1997 to lecture in criminal law and sports law and to develop its innovative MA (Sport and the Law).