Civil liability in sports injury cases – when will liability arise?

England and Wales

Injuries in sport, particularly contact sports, are not uncommon and are generally regarded as a risk participants willingly run - but in what circumstances will an injury give rise to civil liability?

In Czernuszka v King [2023] EWHC 380 (KB), the High Court considered the appropriate test for establishing liability when one participant causes injury to another, in this case in the high-contact sport of rugby.

Background

On 8 October 2017 the claimant, a 28-year-old mother of two participating in her first competitive game of rugby, suffered an extremely serious injury to her spine as a consequence of a tackle by the defendant. The injury was sufficiently serious to render the claimant paralysed from the waist down.

The court accepted evidence that the defendant had conducted herself in an aggressive manner, both physically and verbally, throughout the game. In a previous encounter between the two teams on 8 May 2017, a “friendly”, the defendant’s similarly inappropriate approach had resulted in one opposition player sustaining a broken arm, another a head injury and a third being punched. Whilst not a friendly, the game on 8 October was “developmental”, meaning that players were assumed to still be learning the game and it was supposed to be played in that spirit.

The court was satisfied that the defendant’s approach was entirely inappropriate given the context and that, as the most experienced player on her side, her team followed her lead. There was also a mismatch between the teams: the players on the claimant’s team were generally lighter and relied on speed; the players on the defendant’s team were generally bigger, and relied on their size and aggression. The defendant herself, the team captain, was 5’5” and weighed between sixteen and seventeen stone, whereas the claimant was 5’3” and weighed 9 stone.

Towards the end of the game, the claimant, playing in the position of flanker, came around to the back of a ruck and bent down to pick up the ball from between the legs of her teammate, number 16. While in that position, knees bent and arms stretched forwards towards the ball, the defendant moved towards her, putting her whole bodyweight forward and down on the claimant’s back whilst grasping her thighs just above the knees. The claimant was forced down onto her bottom, with her body still bent forward and the full weight of the defendant on top of her, resulting in immediate spinal fracture.

Both sides called expert evidence from highly experienced retired professional referees. The defendant’s expert initially maintained that the tackle did not constitute a foul (noting that the game referee had not penalised the defendant), a position that unravelled entirely during cross-examination to the point where he accepted that the tackle was “the very epitome of dangerous tackling”, in line with the assessment of the claimant’s expert. It was argued on behalf of the defendant that the tackle was nevertheless no more than an error of judgment, made at speed, and could not be characterised as reckless or demonstrating a high degree of carelessness. As such, it was no more than a highly unfortunate risk of the game and not negligent.

The issue for the court to determine, then, was whether the tackle reached the threshold required to establish liability.

The law

It is well established that sporting participants owe each other a duty of care. The standard of care governing the conduct of players in competitive sports has been more controversial.

In Condon v Basi [1985] 1 WLR 866, the Court Of Appeal noted the different approaches taken to that point, concluding that the duty was to take “all reasonable care taking account of the circumstances in which you are placed, which in a game of football are quite different from those which affect you when you are going for a walk in the countryside.” It was an objective standard, but required careful consideration of the particular circumstances in which the event causing injury occurred to determine whether the duty of care had been breached. In Caldwell v Maguire [2001] EWCA Civ. 1054, the Court Of Appeal made clear that mere errors of judgment, particularly in a fast-moving context, would not be sufficient. Similarly, breaching the rules of the game in and of itself did not constitute negligence.

The judgment

In finding for the claimant, the judge adopted the approach endorsed in Condon: the test was whether the defendant failed to exercise such degree of care as was appropriate in all the circumstances.

Those circumstances relevant to the issue of liability included: the mismatch in weight and experience between claimant and defendant; the overly aggressive manner in which the defendant had conducted herself throughout the game and, interestingly, in the previous game; the fact that this was a development game with a number of novice players on both sides; and his finding that the tackle itself was highly dangerous and undertaken without concern for the claimant’s safety.

Given those particular circumstances, the defendant’s conduct had fallen below the relevant standard of care; she had been negligent and was liable for the injury caused. The defendant’s submission that it was necessary to find that the tackle itself was undertaken recklessly was rejected, although the judge was nevertheless satisfied that the tackle was indeed reckless.

Comment

The judge in Czernuszka observed that injury had arisen in a “very unusual and exceptional context”. The threshold for establishing liability remains high and will require careful consideration of all circumstances before concluding whether or not the standard of care – to take such care as is reasonable in the particular circumstances – has been breached.

The case followed hot on the heels of another sports injury case, Fulham Football Club v Jones [2022] EWHC 1108 (QB). That case concerned a professional football match in which a player employed by Fulham FC had tackled a Swansea City player, breaking his ankle and ending his professional career. As in Czernuszka, the referee had not awarded a foul. It was alleged that the tackle was nevertheless negligent and that Fulham FC were vicariously liable for their player’s negligence. On appeal to the High Court, it was found that the tackle was not negligent. The standard for establishing civil liability for a sporting injury was higher than a mere breach of the rules of the game and uncertainty about whether or not a tackle would harm the other player was insufficient to establish negligence. In finding for the claimant in the original trial, the Recorder had failed to take account of all relevant circumstances, which included the fact that the referee had not awarded a foul and that the tackle decision was made in the heat of the moment. Furthermore, the Recorder had failed to explain why he preferred the claimant’s expert evidence to the defendants.

These two cases illustrate the difficulty practitioners will encounter when considering a claim arising from an injury sustained in sport. Careful consideration of all potentially relevant circumstances will be required and establishing liability will remain a difficult task for claimants.