Compensation Act referred to by Judge in dismissing footballer's claim

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28 October, 2020

David Mayor

Forbes have successfully represented a football club in a claim arising out of an alleged injury to a player when he says that his foot went into a hole in the playing surface.

In dismissing the claim the judge referred to the need to consider whether a desirable activity might be prevented or curtailed if too high a burden is placed on those organising such activities.

In the case of David Howard v St Helens MBC (1) and Bleak Hill Rovers FC (20 the claimant, who was 16 years old at the time of his accident, was playing for the Bleak Hill Rovers FC under-17's football team. The match took place at the club's home ground, which was leased from the First Defendant by the Second Defendant. The claimant alleged that his foot became trapped in the hole during a tackle causing him to fall and injure his right knee.

The claimant sustained a comminuted depressed left tibial plateau fracture of the right knee, a fairly nasty injury for such a young age. He required surgery including internal fixation of the joint. He was left with ongoing problems and the risk of lifelong issues with his knee. As a result, his claim was for around £200 000.

Our clients denied liability on the basis that they had inspections including a pitch inspection by the Chairman and independent Referee before the match. No issues were found. Also, the pitch had been mown only a couple of days prior to the accident when nothing was picked up. Of more significance was that the referee did recall a tackle between the claimant and one of the opposition players when the claimant fell to the ground. The referee was close to the incident. He did not see any hole, and the claimant did not mention any hole. We obtained detailed statements to support our client's position.

The Judge found the factual circumstances were that the claimant had been involved in a shoulder charge / tackle with another player and he lost his balance. The claimant put his left foot down first to regain his balance but lost his balance and fell. The claimant did not mention a hole at the time to the paramedics, his teammates or manager in the aftermath of the incident.

The first mention of the alleged hole was at approximately 3pm that afternoon - the accident having occurred at around 10am that morning. The Judge suggested that the first mention in the afternoon was the claimant re-running events in his head and trying to find an explanation himself for the accident.

The Judge was not satisfied that the claimant proved on the balance of probabilities that there was a hole in the surface. The Judge accepted that the pitch was inspected by the Defendants and those inspections were reasonable and appropriate. There was nothing to suggest the pitch was not in a reasonable condition and was not reasonably safe for persons using it for the purpose of the match.

In dismissing the claim against both defendants, the Judge referred to the Court of Appeal's judgment in Sutton v Syston Rugby Football Club Limited [2011] EWCA Civ 1182 where Section 1 of the Compensation Act 2006 (below) was cited.

1. A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might-

(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b)discourage persons from undertaking functions in connection with a desirable activity.

The judge said that he had sympathy for the young claimant, but that he had to look at the claim from a wider perspective than that of just the claimant, and referred to Sutton which said that courts should not impose duties of care that would make sporting activities subject to more interference from the courts than they should be.

Forbes' Comment

Whilst the main defence and issues in this case centred on the system of inspection and causation, it is another a useful reminder that the Compensation Act has a part to play when courts are looking at the extent of the obligations on organisers of sporting activity, particularly at grass roots level where funding and resources may be scarce.

Our Sports Team have handled several of these cases where claimants are seeking damages for injuries on allegedly poorly maintained pitches at amateur level. Claimants seem to want Premiership quality pitches when there aren't the resources to provide them, and many of our regional FA clients have expressed concern about this trend.

For more information contact David Mayor in our Insurance department via email or phone on 01254 222416. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Insurance department here

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