Andrew Deans and Justin Clayden review liability for sports injuries.
The last few years have seen an escalation not only in the number of claims that have been launched to recover damages following incidents connected with professional (and amateur) sporting events but also in relation to the value of those claims. The most recent decision in a professional case is Gordon Watson v Kevin Gray and Huddersfield Town. In May this year Mr Watson was awarded a record breaking sum of £959,000, having broken his leg in a tackle in February 1997.
The increase in the amount of sporting litigation is probably no more than a reflection on the present propensity of society to blame others for life's misfortunes - preferably those covered by liability insurance. Furthermore, increased participation in quality leisure pursuits at a time of ever increasing commercialisation has led inexorably to the spread of the compensation culture into the sporting sector.
Putting to one side the glamour and razzmatazz that are often perceived to be part of professional sporting life, the reality is that the liability issues arising from sport are no different from those anywhere else. In dealing with claims for negligence we are still left with consideration of the three fundamental issues namely the existence of a duty of care, breach of that duty and the assessment of damages flowing from that breach.
Establishing the existence of a duty of care in contact sports between players, or in an instructor and pupil situation does not cause any difficulty in reality.Professional sporting cases can be distinguished from other types of tortious claim when the decision has to be made whether that duty has been breached and in assessing the damages that follow. The determination of the relevant test to apply in a split second incident that may have been observed by thousands and extensively filmed does though single out the claims of well known sportsmen in the public domain from more ordinary claims.
The courts have recently had several opportunities to consider the relevant standard of care. The Court of Appeal decision in Woolridge v Sumner (1963) is perhaps the starting point. This case was for compensation following an incident in which a photographer was trampled under the hooves of a horse which took an overly wide circuit around a stadium. In considering the test to be applied Lord Justice Sellers said:
“If the conduct is deliberately intended to injure someone whose presence was known or is reckless and in disregard of all safety of others so that it is a departure from the standards which might reasonably be expected by anyone pursuing the competition or game then the performer will be held liable for any injury his act caused.”
Although the test is an objective one, the subjective evidence of the defendant will almost certainly form a crucial part of the evidence. With regard to the issue of consent (i.e. the maxim in unfashionable Latin of “volenti non fit injuria”), with which sporting liability cases are always concerned as a sub-text, the court held that the defence of acceptance of risk only held merit where it could be shown that the injury arose from an accepted element of the sport and was thus an accident even if there had been a lack of reasonable care by the perpetrator. In the same case Lord Diplock described the spectator as having accepted:
“the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act may involve an error of judgment or a lapse of skill unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety”Lord Seller's test has also been applied between participants in a number of varied cases - in TT motorcycling (Harrison v Vincent (1982) Court of Appeal), golf (Pearson v Lightning (1998) Court of Appeal), but perhaps most conspicuously with football (Condon v Basi (1985) Court of Appeal), and Elliott v Saunders (1994) and McCord v Swansea City (1996), both High Court decisions.
The courts have considered each case on its own particular facts. It is thus difficult to say with any certainty whether each incident will fall clearly on one side or another of this notional line beyond which liability will attach. The way in which evidence is given and the personal approach of the judge will weigh heavily on the outcome of each case. The emotion in sport does not leave the courts untouched.
This brings us to the High Court case of Watson v Gray where the judge, showing a keen knowledge of football, clearly regarded the video footage and accounts given in evidence with more than a professional interest. The test formulated by the judge to determine liability in this case was whether the defendant had appreciated that there was a “significant risk that the defendants' actions would result in a serious injury to the claimant”.
Whether the requirement of a “significant risk of serious injury” in Watson is in reality any different to the “reckless disregard for the claimant's safety” in Woolridge remains to be seen. Ultimately the description of the test to be applied is probably not so important, provided there is some consistency in determining the appropriate standard of care in all the circumstances.
That standard of care has also been considered in cases following incidents which have taken place in an amateur or at least non-professional context. In the County Court decision of Maxwell Casson v MOD (1999) (unreported) where a teenager was hurt in a friendly match while on cadet camp, the Woolridge test was again applied in the claimant's favour. In another unreported County Court decision, Swale v Prior (1997) where the claimant was injured during an amateur match between two police teams, the judge seems to have been sympathetic to the plight of the claimant in applying the Woolridge test. It is difficult to say more than that the level of skill of the participant will be an important factor in assessing the reasonableness of the defendant's conduct.
Individual sports have also been the subject of legal action. In Pearson v Lightning (1998) the Court of Appeal confirmed a finding against the defendant golfer. Having strayed off the hole he was supposed to be playing the defendant took his shot without having ensured that the players on another hole were aware of his position. The ensuing mis-hit struck the claimant in the eye. In contrast is the case of Brewer v Delo (1967) where a golfer hooked the ball so badly that it struck a player on the next fairway. There the court held that the risk of injury was so small that a reasonable man would be justified in ignoring it and thus the defendant was not liable. Perhaps the main difference between the two is that in Pearson the defendant had clearly been reckless, whereas he had not been in Brewer.
Instructors, referees, coaches and schools have also been defendants in cases following injuries received by participants. In the High Court decision of Smolden v Whitworth (1997), which was affirmed on appeal a referee was found liable for the injuries sustained by the claimant during a colts rugby game. That case specifically turned upon the fact that the referee had failed over a period of time to apply the rule specific to that level of play designed to stop scrums collapsing. Had he done so, there was a good chance that the accident would not have occurred. In contrast the pupil claimant in the High Court decision in Van Oppen v Clerk to the Bedford Charity Trustees (1990) was unsuccessful in claiming damages from his school after he was injured in a rugby tackle where he had alleged that there had been insufficient instruction on how to tackle properly. In Smolden the court described the level of care as being that:
“. . . which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast moving or vigorous contest. The threshold of liability is a high one. It will not easily be crossed.”
The court's incremental or case by case approach has also been applied in cases involving instructors as in the High Court decision in Hedley v Cuthbertson (1997). Here a professional mountain guide was held liable for the death of a climber under his instruction on the basis that he had failed to take adequate safety precautions (using only one ice screw instead of two) while undertaking a manoeuvre during a climb. While climbing is a dangerous sport there is still a line beyond which the acceptance of risk will not exonerate the negligence of the defendant. Interestingly at the same time Mr Cuthbertson was also being sued by a novice climber who had fallen and been injured in a separate incident. On the facts of that case he was found not to be liable.
Finally it is necessary to consider the liabilities of promoters or participants that may arise following injuries to spectators. Whether the promoter is organising a bowls match or a grand prix race, the underlying duty to ensure the safety of spectators remains the same. The difference however will be in the extent and complexity of safety measures to be taken. The test will be whether the promoter has taken all reasonable steps necessary to ensure the safety of those attending the event and the principles will not differ here from any other liability scenario.
Where a spectator is injured during the course of a game then provided it is not done by a deliberate act there will generally be no liability on the participant who has caused the injury. The test that will be applied here is “. . . whether the injury to the spectator has been caused by an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made.”
In conclusion, the huge sums of money invested in professional sport and the exponential growth in participative sports have generated an increasing number of cases and awards of damages which are no doubt of alarm to insurers underwriting in this area. However, the underlying principles applied by the courts in determining claims for compensation following sporting incidents are not markedly different from those in any other form of negligence claim. Each case will still turn on its own facts. Insurers may in fact draw comfort insofar as the courts have always held sympathy for the player who has acted in the heat of a hard fought sporting contest.
Andrew Deans, partner, head of the sport and leisure liability team, Justin Clayden, solicitor, of Hextall Erskine, solicitors to the insurance industry.