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Actionable or acceptable? – The narrow line between sport and Tort

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By Richard Rowe


Published 22 June 2022


Personal injury claims arising out of incidents between participants in sport is an area that has provided some difficult issues over the years...


Personal injury claims arising out of incidents between participants in sport is an area that has provided some difficult issues over the years given the interplay between playing within the rules and customs of the sport and negligent acts.

Earlier this year we reported on the case of Tylicki v Gibbons [2021] EWHC 3470 (QB), in which the High Court provided further clarification of the law in negligence between sporting competitors, on that occasion in the arena of horse racing. In Fulham Football Club v Jones [2022] EWHC 1108 (QB), the High Court has considered this area again in the context of a football match.

The trial at first instance

Fulham FC (“Fulham”) was held liable for personal injury and losses suffered by the Claimant as a result of a challenge made on him by one of its players during an under 18’s football match. The injury suffered by the Claimant resulted in the end of his footballing career. Fulham appealed on four grounds. It argued the recorder had erred in;

  • failing to apply the appropriate test for liability between participants in a professional sporting context;
  • failing to give adequate reasons why he rejected their expert evidence;
  • expressly refusing to take into account the context of the tackle and the realities of professional football, which is fast-paced, competitive and involves physical contact; and
  • failing to take into account all of the contemporaneous evidence.

The appeal

In the appeal judgment Justice Lane describes the challenge which led to the injury. He says the Claimant had run with the ball into Fulham’s half when a Fulham player approached from the side and made the tackle. The Fulham player led with his right foot made contact with the ball first, his right foot then made contact with the Claimant as did his left foot. The Claimant fell to the ground at which time the Fulham player got to his feet with the ball and continued with the game. The challenge was in full view of the fully qualified referee who did not award a foul, let alone issue a card. There was no adverse reaction from spectators, players or coaching staff and following the match no complaint was made to the FA, nor was any investigation or disciplinary action taken. Justice Lane set out the threshold for liability in the way described in the Tylicki case:

The threshold for liability is high and the mere error of judgment or lapse in skill is not sufficient, taken in the context of this highly competitive and inherently risky sport. In effect, whilst recklessness has been expressly stated not to be the test for a finding of negligence, in effect the evidential burden is such that requires a reckless disregard for the safety of others. Of course, in placing the threshold at that high level regard is being had to all the circumstances of the sport, the inherent dangers and the high degree of competitiveness with a requirement on jockeys to win or be best placed . . .”.

Justice Lane described the issue, and the error into which the trial judge had fallen in the following terms:

“…. the Rules of the Game of Association Football have not been drafted with civil liability in mind. Their drafters were simply not concerned with whether, at any point in the hierarchy of sanctions, there is a correlation with the laws of negligence. Although shorthand expressions such as “football crimes” and the “unwritten code of playing culture” must be handled with care, the fact that such crimes or violations of the unwritten code are (or should be) the subject of sending-off of the player concerned does not mean that any sending-off is, without more, very likely to amount to actionable negligence. In this regard, I take judicial notice of the fact that red cards are exhibited by professional referees much more frequently than racing stewards make findings of dangerous riding. The real problem, therefore, with the self-direction in paragraph 56 of the recorder’s judgment is that by closely aligning serious foul play in the Laws of the Game with actionable negligence, he wrongly reduced the ambit of the inquiry required in order to answer the question of whether, in all the circumstances, Mr Harris’s tackle was not only a breach of the Rules of Game but negligent.”

Fulham succeeded on all four grounds of the appeal. Justice Lane found:

(i)  the trial judge had, as explained above, too closely aligned foul play in the Rules of the Game of Association Football with actionable negligence;

(ii)  the trial judge had failed to give adequate reasons for rejecting the evidence of Fulham’s expert witness, who was a top level former Referee and the first FIFA head of refereeing.;

(iii)  while the fact that football is a contact sport had been acknowledged, the tackle had been analysed in a vacuum, this being shown when the judge said, ‘It does not matter that... in a general sense it can be said the tackle was made in a fast moving heat of the moment context’; and

 (iv)  although the judge had not erred by failing to give any weight to the lack of reaction to the tackle from the coaching staff and players, the failure to give weight to the fact that a fully qualified referee had not considered a foul had been committed was an error.

In light of these findings Fulham might have anticipated that its request for judgement would be accepted but it was not and a re-trial was ordered.

Following on so soon from Tylicki the judgment provides a reminder of the test in negligence between sporting competitors. The threshold for such liability is high and the judgment gives a concrete example that courts must have proper regard to the circumstances of the sport in question, the inherent risk of that sport and the high degree of competitiveness that is inevitable between participants. The judgment is also an example of the contemporaneous and expert evidence that must be reviewed.

Claims for injuries suffered in the sporting arena are commonplace. Considering the financial rewards of a sporting career, particularly one at an elite level, a career ending claim can very costly. According to the Professional Football Scouts Association, the average wage of a Premier League footballer is just over £60,000 per week. It is therefore easy to see how claims can reach high quantum levels.  

There are very few in competitive sport who would set out to injure an opponent but few will give careful consideration to the legal position when it comes to making physical contact. The Fulham case will be making its way to a new trial and the court’s approach will be just as interesting and informative as the outcome so it is very much a case of watch this space.

DAC Beachcroft have considerable experience defending claims brought as a result of injuries suffered during a wide variety of sports. For more information or guidance on this please contact Richard Rowe, whose details are set out below.