Forbes at Trial

The case came before HHJ Evans-Gordon.

It was an application for summary judgment. It concerned a match played between Mr Youcef Harizi’s then team, Barking Football Club, and the defendant’s team on 25 November 2019.

The claimant pleads, first, that there was a deliberate assault by one of the defendant’s players, on the claimant in that it is asserted that one of the defendant’s players headbutted or deliberately hit the claimant with his own head.  It is said, at paragraph four, that the defendant is vicariously liable for the act or omissions of its players.  In the alternative, if the clash of heads was not deliberate, it is pleaded that it was caused by the negligence of the defendant’s player for which the defendant is also vicariously liable. 

The claimant who appeared in person relied on a medical report which was not agreed. The judge described the report being from a GP as “slightly odd” given that the injuries were of various fractures to the face. It concerns a match played between Mr Youcef Harizi’s then team, Barking Football Club, and the defendant’s team on 25 November 2019. The review of medical records revealed that the claimant suffered a head trauma on a date prior to 10 September 2019, a little over two months before the index accident. It was not clear from the report what the accident was.  However, the injuries suffered as a result of the earlier accident  were a complex zygomatic fracture and right orbit fracture which seems to be in the same location as the index injury in the present case.

The defendant relied chiefly on 2 witness statements, one from a Mr Ulysses Lopes Tavares the director and controller of the defendant football club and one from a Keith Whittington who was at the relevant time, the club secretary of Barking Football Club the team the claimant was playing for

Mr Ulysses Lopes Tavares’ evidence goes to the nature of the club, its organisation and its relationship with the players.  Essentially, it says that this a purely amateur organisation. There are no contracts with any of the players.  There is no payment. There is no control exercised over them.  Players do not have to turn up if they do not want to. The company has no assets of any sort. 

Mr Keith Whittington’s evidence confirms, at least as far as Barking Football Club is concerned, it is also a purely amateur organisation. Nobody gets paid, neither those playing, nor those who organise matches and the club.  He, himself, attended at this particular match.  He says he was about 10 yards from the halfway line in the stand.  There is an athletics track running around the pitch which meant he was about 40 yards from the incident when it occurred, although he had a good view of it.  He recalls that the ball went into the air and both the claimant and a Lopes Tavares player jumped to challenge for it.  In so doing, their heads clashed and the claimant went down.  The game was temporarily stopped.  The claimant left the pitch and was substituted.  There was no foul.  No red or yellow cards were issued.  There was no protest and it was Mr Whittington’s view that the clash of heads was purely accidental.  Mr Whittington had not heard from the claimant by way of any complaint about deliberate injury or even negligent injury until he was informed by the defendant that they were being sued by Mr Harizi.

The test for summary judgment is essentially set out in CPR Part 24.3 which states ‘the court may give summary judgment against a claimant or a defendant on the whole of the claim or on an issue if – (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.’  As far as the case law is concerned, a real prospect simply means as opposed to a fanciful prospect and in that sense, it is not dissimilar to the test for permission to appeal.  However, a realistic claim is one which carries some degree of conviction, a claim that is more than merely arguable, as set out in Swain v Hillman [2001] 1 All E.R. 91.  If the claimant’s case is bad in law, he will have no real prospect of succeeding, therefore summary judgment can be given on a point of law and not just on the merits of the allegations.

Given that the claimant’s own club secretary gave evidence that he considered the clash of heads purely accidental it was always looking an uphill task for the claimant to persuade the court that he had a real prospect of success based on the facts alone. However, the most interesting aspect of this case from a legal perspective was the judge’s consideration of vicarious liability in the context of an amateur football match.

As far as the law on vicarious liability is concerned, at least in a sporting context, the current leading case is Gravil v Caroll and Redruth Rugby Football Club [2008] EWCA Civ 689. That case involved a semi-professional player who was employed by Redruth Rugby Football Club to play rugby.  Vicarious liability was imposed on the club in that case, which is one where the player had thrown a punch at a player on the other side and it found that the nature of the relationship between the player and the club was in effect an employment contract.  Indeed, the terms of the contract itself said so.  In terms, it gave the club a control over the player, requiring him to turn up and play and it also set out requirements for his conduct and imposed penalties in the event, for example, he was penalised and that caused the club a pecuniary loss. There are many places, in that judgment where the court makes it absolutely clear that its comments are limited to professional or semi-professional clubs where there is an employment contract or something akin to an employment.  It is repeatedly said, that these principles, and therefore  this vicarious liability would not apply to purely amateur clubs. This is clearly, in a way a policy decision, so that amateur clubs would not be, in effect, prevented from operating because of the risks involved in the game.

The most recent authority on what the test, or what needs to be established, to establish vicarious liability is the Supreme Court case of BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UK SC 15.  While that involved sexual abuse, the law is relevant to all cases were vicarious liability is alleged. 

There are two stages to consider in determining vicarious liability.  Stage one is concerned with the relationship between the defendant and the tort feasor.  Stage two is concerned with the link between the commission of the tort and that relationship.  Both stages must be addressed and satisfied if vicarious liability is to be established.  The test at stage one is whether the relationship between the defendant and the tort feasor was one of employment or akin to employment.  In most cases, there would be no difficulty in applying this test because one is dealing with an employer/employee relationship, but in applying the ‘akin to employment’ aspect of this test, the court needs to consider carefully features of the relationship that are similar to or different from a contract of employment.  Depending on the facts, the relevant features to consider may include whether the work is being paid for in money or in kind; how integral to the organisation is the work carried out by the tortfeasor; the extent of the defendant’s control over the tortfeasor in carrying out the work; whether the work has been carried out for the defendant’s benefit or if it furthers the aims of the organisation; what the situation is with regards to appointment and termination; and, whether there is a hierarchy of seniority into which the relevant role fits.  It is important to recognise, as made clear in Barclays Bank, that the akin to employment expansion does not undermine the traditional position that there is no vicarious liability if the tortfeasor is a true independent contractor in relation to the defendant.

The judge commented that in the present case there were no pleaded facts which could give rise to the necessary relationship  between claimant and the alleged tortfeasor As the claimant had not produced any evidence to suggest that the club were in a relationship akin to employment with the player who allegedly caused his injuries the judge concluded his claim was “bad in law”. Although it was not strictly necessary therefore the judge also indicated that based upon the evidence presented particularly that of his own club secretary, the case carried no real conviction and had little prospect of success in any event.

The strike out application was consequently granted and judgment entered for the defendant.

Forbes comment:

Whilst this is a first instance decision on a strike out, counsel believed it was significant in reiterating a general principle that amateur sports clubs where the players are not paid and are not in any way contracted to the club (being registered to a play would not be classed as being contracted ) will not be held vicariously liable for the actions of the players. On the issue of liability more generally David Mayor was successful in obtaining a statement from the claimant’s own club secretary whose evidence clearly undermined the claimant’s case. Once again, the key elements of knowing the law, proper investigation of facts together with forensic cross examination paid dividends in defeating an unmeritorious claim.