Vicarious liability: can sports clubs be liable for amateur members?

This was the question to be addressed by Central County Court in a recent matter handled by Forbes Solicitors.

The claim related to a match between the Claimant and the  Defendant’s team on 25th November 2019. The claimant alleged that that one of the defendant’s players headbutted or deliberately hit him with his head. It was alleged that the Defendant club was vicariously liable for the acts or admissions of its players. The second head of claim was that, in the alternative, if not deliberate the injury was caused by negligence of the defendant player for whom the Defendant was also vicariously liable.

Forbes made an application for summary judgment on behalf of the Defendant. The Defendant accepted a clash of heads on the day but submitted that, as matter of law, as it currently stands, the claim had no reasonable prospects of success as the Defendant was an entirely amateur organisation. There was no contract of employment, and there is nothing akin to an employment contract as between the Defendant and its players. It also defended the case on the basis that it was an accident and not deliberate nor negligent.

The statements served in support of the application confirmed that the club was a purely amateur organisation, with no contract, no payment, no control exercised over the players who do not have to turn up if they do not want to, and the company has no assets of any sort. There was a clash of heads as 2 players went up for a ball, but no foul was given, no cards were issued, there was no protest, and it was the Defendant witness’ view that the clash of heads was purely accidental.

At the hearing HHJ Evans-Gordon confirmed that the test for summary judgment is essentially as per CPR 24.3. There must be a real as opposed to fanciful claim. A “realistic claim” carries some degree of conviction, in that it is more than merely arguable. As to the law on vicarious liability, at least in a sporting context, the leading case is Gravil v Carroll 2008 EWCA. That case involved a semi-professional player employed by Redruth to play rugby. Vicarious liability was imposed on club in that case, one where the player had thrown a punch on the opposing player, and the court found that the nature of the relationship between player and club was in effect an employment contract. The terms of the contract said so, as they gave the club control over the player, required him to turn up and play, set out the requirements for his conduct and imposed penalties in the event he was penalised and the club suffered a loss. There are at least 3 places in that judgment where the court made it absolutely clear that their comments were limited to pro or semi pro clubs where there is an employment contract or something akin to it, and repeatedly said that these principles and vicarious liability would not apply to purely amateur clubs.

The most recent authority on the test for vicarious liability is the UKSC case of BXB v Trustees of Barry Congregation. There are two stages to consider – The test at stage 1 is whether the relationship is employment or akin to employment. Stage 2 is the link between the commission of the tort and that relationship.

In this case, the judge considered that there were no pleaded facts that could give rise to a relationship between the Defendant and the alleged tortfeasor which would allow a claim for vicarious liability to be successful. In any event the judge noted that, although not necessary to assess on the merits, it did not seem that the case has any real prospect of success anyway. While it may be arguable on basis of the pleading, the evidence before the court did not support negligence and there being no challenge to that evidence, the case carries no conviction, and there were no real prospects of success.  The application for summary judgment was therefore successful on that basis.

This decision hopefully provides some reassurance about the extent of liability an amateur sports club may face in respect of accidents. The decision is wholly in line with the rationale of previous case law on vicarious liability but there may also be a policy element to the approach as treating such clubs as an employer would likely prevent them from operating at the detriment of society generally. If you have any concerns about the potential liability your sporting organisation may face please do not hesitate to contact Forbes to discuss the same.