Negligence in Sports Claims

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10 April, 2024

David Mayor

The recent case of Omar Elbanna v Tom Clark [2024] EWHC 627 (KB), in which the High Court handed down Judgment on 20 March 2024, serves as a useful reminder of the duties participants in sports owe to each other, and how they may be breached.

The case is a tragic example of how things can go horribly wrong in the blink of an eye during contact sports. The parties were both experienced rugby players competing on opposite sides of an amateur match between Cheltenham tigers and Midsomer Norton when, shortly after restart for the second half, the Defendant collided with the Claimant at speed, leaving him with life-changing spinal injuries.

There were many issues to determine at trial. There was some suggestion, for instance, that the Defendant's tackle was deliberate and intended to temporarily remove the Claimant from the game. If proved, the defendant would have been liable to compensate the Claimant for his intentional battery. Ultimately, however, the Judge found no evidence of any intent, which left him tasked with establishing whether the defendant's conduct was instead negligent. He found that the Defendant had indeed been reckless in his actions as there were opportunities for him to slow down or change his course of direction before the impact, which he had chosen not to take.

The fact that the law of negligence applies in the same way to actions on the rugby pitch as it does to vehicle drivers or employers is well-known, but it is how those rules are applied which has shone a particularly bright spotlight on sports claims over the years. Indeed, these are concepts that the Courts have traditionally struggled to implement with any great consistency, leading to some stand-out and oft quoted decisions.

A person who walks down the street and either wilfully or with recklessly careless abandon knocks into pedestrians and causes them injury may, in certain circumstances, be liable for breaching the duty of care they have to other persons using the pavement. Games of rugby, however, regularly involve 20 stone props piling at full tilt into bewildered and wide-eyed scrum halves. It can hardly be said that pedestrian is more culpable than the prop - particularly if the prop has deliberately intended to tackle and, let's be honest, without any real care for the consequences - but the difference is that both players have consented to taking part in a physical game which, by its very nature, involves heavy contact. We therefore have an unusual situation where human beings have, to some extent at least, consented to conduct that would have been negligent in a different context.

It is that which leads many to believe, with some justification I might add, that the scrum half "knew what he was getting himself into". That, in turn, feeds the compensation culture debate which continues to loom large. After all, it hardly seems fair to voluntarily play rugby, suffer an injury, and then sue the opposition does it? If you have consented to what should be negligent conduct (or even assault) under normal circumstances, and you are aware that you may suffer injury as a result, how can you possibly claim that another person's particular conduct was different in a way that does attract a viable claim in damages? Even worse, how does that work in non-contact sports (such as horse racing) or quasi-contact sports (such as football)?

Mr Justice Sweeting dealt with all of these issues and more in the Elbanna case, and it is a judgment worth reading. Paragraphs 14 and 15 set out the legal framework as summarised in the case of Czernuska v King [2023] EWHC 380 (KB), another High Court case dealing with similar issues in which judgment was handed down by Martin Spencer J. Mr Justice Sweeting endorsed that Judge's summary that the test is "whether the defendant failed to exercise such degree of care as was appropriate in all of the circumstances", which was in itself an approach that was endorsed by the Court of Appeal in Condon v Basi [1985] 1 WLR 866.

So why the confusion? In the 2004 case of Blake v Galloway [2004] 3 All ER 315, the Court of Appeal applied exactly the same test but, whilst wrestling with the context of contact that can be expected in the case of "horseplay" between children, found that "the defendant's conduct came nowhere near recklessness or a very high degree of carelessness" that was required to establish negligence. The boys, being as they generally are a relatively reckless species, were throwing twigs and sticks at each other when the defendant picked up a piece of bark and threw it at the Claimant. Predictably, and in line with warning provided by parents around the globe every single day, the claimant suffered a serious eye injury.

Lower courts must, of course, follow a higher court decision, leading to a number of cases in which the presiding judge was asked to find for the defendant on the basis that the duty of care in sports and leisure cases is higher than in "normal" negligence claims, as a degree of recklessness or extreme carelessness was required. Spoiler alert; it is not.

Whatever your thoughts on what Lord Justice Dyson intended, it seems fair to say that his quote was taken as a snapshot out of all context to the facts of the case. The difficulty that the court was facing was that the children were actually being negligent by consent and design. They were trying to throw sticks in the general direction of their friends. They knew that one false move may cause injury. They knew that throwing sticks was generally dangerous and ill-advised. As such, the court could not find for the claimant on the basis that throwing sticks at someone and causing injury is negligent because, whilst that may be true, it ceases to be so if the two are doing the same to each other during a consensual and fun game of "smack your mate with a stick".

The fact is that the bark in question was thrown without intent to cause injury and within the understanding and conventions of the game, in a manner to which the parties had consented and already participated. It may have been different, however, if the defendant had picked up a stone and thrown it at the claimant's head in anger; neither had consented to that, and would be surprised if it occurred.

And so it is here that we can see draw the analogy with rugby. Yes the participants consent to some contact, but only within the clearly defined rules of the game. Accidents will happen; that prop creates a lot of momentum at full speed which can be extremely difficult to redirect, and there are times when heads will clash accidentally and tackles will become "late" merely by virtue of a last-minute offload. Under normal circumstances, not even a breach of the rules of the game will necessarily result in a finding of negligence. It is the fact that the degree of conduct must exceed these accidental breaches that led the Court of Appeal to attempt to qualify them in terms of "recklessness" or "extreme carelessness", which has been greatly misunderstood since.

The record was set straight in Smoldon v Whitworth, a fact noted and adopted by Mr Justice Sweeney in Elbanna. The normal rules on negligence apply, but within the "special circumstances" which caused the injury. Compliance with the rules of the game is a factor to consider, but is not determinative, as there are situations in which the court may feel that "a participant might do what the Defendant did and still not be acting unreasonably, even though he infringed the rules of the game".

Participation in contact sports can lead to injury, but that is only likely to give rise to a viable claim in damages if the conduct which caused the injury went over and above what would be considered normal and acceptable within the special circumstances of the game in question. The law is simple, but the execution is not; these cases are highly fact-specific and almost aways require a forensic analysis of exactly what everybody was doing, thinking, and intending, in the split seconds before tragedy occurred. If you are involved in running sports clubs, NGB's, or any other business in the sports arena, particularly if that job involves assessing risk or dealing with insurance, it is worth being up to speed on exactly how the law applies and how you can take steps to protect those involved.

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.

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