This site uses cookies.

FREE BOOK CHAPTER: Liability of the Player to Other Players (From 'A Practical Guide to Personal Injuries in Sport' by Adam Walker & Patricia Leonard)

16/11/16. As national and international interest in and remuneration for participation in sport at the highest levels have increased over the last 50 years or so, so too has the potential financial loss and damage associated with a career-ending injury attributable to the carelessness of fellow participants. That is clearly one reason why the injured player may now, more than ever before, be more likely to consider pursuing an alleged wrongdoer in civil proceedings. Civil liability of one participant to another for damages for personal injury is predominantly based in tort and in particular in negligence and trespass to the person.

This chapter considers the liability of the player or competitor to their fellow participants. It deals with general principles of liability in negligence with particular regard to the questions of duty of care and breach of duty, including discussion of the appropriate standard of care. The chapter goes on to consider a number of cases relevant to these questions and the circumstances in which liability has been established in the reported case law and in contrast, where it has not. Other potential heads of liability are then considered in turn, including liability for assault, in contract and in public and private nuisance.



As with all cases in which negligence at common law is relied upon as a cause of action, a claimant must demonstrate that a duty of care was owed to them by the defendant, that the defendant was in breach of that duty and that as a result of that breach of duty the claimant suffered loss and damage, which loss was not so unforeseeable as to be too remote to be recoverable.1

Liability in negligence in the context of involvement in sporting events often has an additional level of complexity however given that in many cases participation necessarily involves the acceptance of a level of risk of injury to the competitor. In contact sports, for example, a risk of injury cannot reasonably be avoided and liability will be made out only where the claimant’s injury has arisen because of an additional risk of injury having been introduced by particularly careless participation.2 Liability in negligence as between players involves a consideration of concepts such as the extent of a participant’s consent to or acceptance of a risk of injury and as a natural extension to that consent the defence of volenti non fit injuria has been advanced in many cases. Consent and volenti are discussed in more detail in chapter 10.

The application of the law of negligence in this area of activity is also complicated by the tension between ensuring that the law recognizes and acknowledges the social utility of sport3 and the need to give the participant a wide margin of error, but also ensuring that it provides protection to such participants from over exuberant and reckless conduct.

The duty of care

In circumstances where there are multiple participants in a particular sporting activity, the existence of a duty of care in negligence is unlikely to be disputed; it is generally accepted that it is foreseeable that a failure to take reasonable care when participating in a sporting activity might cause injury to another participant, that fellow participants in sport are sufficiently proximate to each other to ground a duty of care and that it is fair, just and reasonable to impose a duty in those circumstances.4 The extent of that duty however may be subject to the question of the risks that participants can be taken to have accepted and the duty requires that players exercise the degree of care appropriate to the circumstances.5

Breach of duty and the standard of care

Generally speaking the question of what was expected in the circumstances is considered at the breach of duty stage when setting the appropriate standard of care against which the actions of the defendant are to be measured. The standard of care is objective in that the test for the court is whether the defendant’s actions have fallen below the conduct of a reasonably competent player of that sport. The standard is based on the activity being undertaken and does not take account of the particular features of the defendant. However the court will take account of the competitive nature of the sport and what is reasonably to be expected in that particular sporting activity. In some cases the court has also had regard to the level of skill of the participants under consideration, to aid in the setting of the appropriate standard of care.6

Unsurprisingly, it has been acknowledged by the courts in countless cases that the nature of sporting activity is such that decisions are often taken in the heat of the moment and in order to take account of that reality liability has said to arise where injury has resulted only from an, “error of judgment that a reasonable competitor … would not have made”,7 as contrasted with a “mere error of judgment”.

While in the reported case law one sees various different tests having been applied, including whether the act complained of amounted only to a “mere error of judgment”8 or whether the conduct complained of showed a “reckless disregard” for the safety of other players, the test applied most consistently and the one which represents the present state of the law is to ask whether reasonable care was taken in all of the circumstances. In the leading case of Condon v Basi,9 a footballer was held to have acted negligently in the manner in which he went into a tackle with the consequence that the tackled player sustained a fractured leg. Sir John Donaldson MR applied a similar test of reasonable care, stating that, “…there is a general standard of care … that you are under a duty 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”. The Court of Appeal upheld the judgment of the judge at first instance who had found the defendant to have been, “clearly guilty … of serious and dangerous foul play which showed a reckless disregard of the Plaintiff’s safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game”, but it was not suggested that “reckless disregard” for the safety other participants was the benchmark to be applied.10 Subsequently, in Smoldon v Whitworth & Nolan,11 the suggestion that a claimant must prove recklessness was rejected in the context of a claim brought by a rugby player against a referee for damages for injury sustained as a result of a collapsed scrummage. The level of care required was said to be, “that which is appropriate in all the circumstances, and the circumstances are of crucial importance”. It was observed that there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast moving and vigorous contest.

The test formulated in Condon v Basi was also applied in Caldwell v Maguire,12 which confirmed that there will be no liability for mere errors of judgment or lapses during the course of the contest. In that case a professional jockey was injured in the course of a race as a result of a horse veering across his path as a result of two other riders’ actions, which were determined by the Jockey Club’s stewards to have been careless riding and in breach of Jockey Club Rules. It was held that there would be no liability for lapses in judgment in the context of a fast moving contest or in the heat and commitment of the race. While the Jockey Club’s stewards had made findings of reckless riding they were not conclusive of liability in negligence at common law.

At first instance it was held that each participant owes a duty of care to other participants, that the duty was to exercise all care that was objectively reasonable in the prevailing circumstances to avoid inflicting injury, that the “prevailing circumstances” are all such circumstances that are properly attendant on the contest and they include its object, the demands inevitably made upon its contestants, its inherent dangers, its rules, conventions and customs, and the standards of skill and judgment to be reasonably expected of a contestant. It was said that the threshold for liability in practice is high and that proof of a breach of duty will not come from demonstrating a mere error of judgment or a momentary lapse in skill and care when subject to stresses of a race.13 Finally, it was observed that in practice it would be difficult to prove breach of duty in absence of conduct that amounts to reckless disregard for another contestant’s safety. The Court of Appeal reviewed a series of earlier cases,14 held that Condon and Smoldon were binding and that the reference to “reckless disregard” was no more than a reference to the practicalities of proving a breach of duty on the facts of some cases and was not a statement that that was the appropriate legal test to be applied. Judge LJ commented that it was correct to state that the threshold is often high and that the circumstances of the case are of crucial importance.

Accordingly, it now appears clear that the test when considering breach of duty is not one of reckless disregard for safety, but rather is one of whether there has been a failure to take such care as was reasonable in the prevailing circumstances, with the facts and circumstances being of utmost importance. While there have been references to the facts and circumstances impacting on the nature and extent of the duty of care, the position since Condon has been that the preferred approach is that there is a general duty of care owed as between participants and the facts and circumstances are matters that should be considered at the breach of duty stage.

Circumstances relevant to the question of breach of duty

As to the features relevant for the court to consider when setting the standard of care and in determining whether the standard of care has or has not been met, the court has identified as relevant features the nature of the sport under consideration and its inherent risks; the nature of the defendant’s actions; whether the injury was caused in the heat of the moment or during strenuous competition; the age and skill of the competitors; whether sporting rules or conventions had been broken and the cost/difficulty associated with the taking of precautions.

The nature of the particular sport in question

Whether the sport is a contact or a non-contact sport will clearly inform the question of the acceptability of a participant’s actions but a perhaps more subtle question is that of the nature of the risks inherent in the sport under consideration. As is identified by Beloff et al., clearly different standards should apply to boxing and rugby as compared with crown green bowls.15 In some cases the nature and extent of the risks to be expected will be obvious whereas in others expert evidence may be required.

The conduct under consideration

Obviously the action or conduct of the defendant will be considered as the basis of the complaint, however the court will take account of the risks associated with that action and whether such risks would or should have been obvious to the defendant.

Age of the competitor

The age of competitor is relevant at the point at which breach of duty is being considered. While the standard of care is still objective the child participant may be able to prey in aid the fact that a feature of all similar participants was a lesser capacity for foresight and prudence.16

Skill of the participant

The decision in Condon perhaps suggests that higher standards of care are owed by professional participants than by amateurs.17 It has been noted in other texts however that the observation was obiter, is not consistent with the law of negligence more generally18 and that it may lead to anomalous results, e.g. in circumstances where a professional team plays an amateur team different participants would be held to different standards of care.19 In a number of cases the preferred position has been that the standard is the same for the amateur and the professional, i.e. that of the reasonable professional contestant.20 It was observed in Vowles v Evans,21 that in Smoldon there had been inconclusive discussion as to the effect of the grade of the defendant referee and Lord Phillips MR concluded in Vowles that on the particular facts of the case it did not matter but that there was “scope for argument” on the question.22 In Smoldon, Lord Bingham LCJ had stated that the distinction did not matter on the facts of the case but the plaintiff’s formulation was preferred, viz. that the standard to which the referee was to be held should depend not on his grade but on the function he was purporting to perform.23 As has been noted elsewhere the position still remains somewhat unclear.24

Heat of the moment

As has been discussed above it was confirmed in Smoldon and Caldwell that there will be no liability for errors of judgment, oversights or lapses during a fast moving contest. However, different considerations have been said to apply in circumstances where injury has resulted from a negligent failure to prepare for the competition or during quiet passages of play as contrasted with errors in decision-making in the heat of the competition, when there has been no or very limited time in which to consider the action being criticized.25 In cases where negligent planning has brought about the injury there is no question of the decision under criticism having been made in the heat and commitment of the contest.

Whether the rules of the sport were complied with

In Condon v Basi, it was confirmed that the question of whether the rules of the sport in question have been complied with is a relevant consideration but it is not determinative.26 Lord Donaldson MR cited with approval a passage from the judgment of Kitto J. in the Australian case of Rootes v Shelton27 in which it was stated that, “non-compliance with such rules is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be that much or little or even no weight in the circumstances.” There have been many decided cases in which compliance or non-compliance with sporting rules and regulations have been a predominant consideration however.28 Indeed, Beloff has observed29 that while the observations made in Rootes and Condon in respect of sporting rules not being determinative of liability may be correct, with sports such as rugby and football, it will in practice be almost impossible to establish liability without also demonstrating a breach of the rules of the game.

Cost/availability of precautions

As in any case of negligence it may be relevant that a defendant would have been put to particular cost or expense in steps to guard against injury. In the sports context this might arise at the planning stage, prior to commencement of the competition.30

Burden of proof

As with any claim in negligence it is for the claimant to discharge the burden of proof on the balance of probabilities.31 While in other claims in negligence it might be open to a claimant to prey in aid the evidential principle of res ipsa loquitur, or that “the facts [of the accident or injury] speak for themselves” and invite an inference of negligence to be drawn from the fact of the accident or injury, that is unlikely to be of much use to a claimant in the context of an injury resulting from the carelessness of participants in sport as in many cases the sport in question will involve an inherent degree of risk and the fact of injury will therefore not be sufficient of itself to raise a prima facie case of negligence. The claimant must demonstrate that the injury resulted not from the non-negligent exposure to risk, but to the increased risk associated with a participant’s carelessness. The position might be different of course in relation to sports that ought to involve no or very limited risk of injury, e.g. crown green bowls.

Remoteness of damage

In relation to the liability of one participant to another issues of remoteness of damage rarely arise. Provided that some damage of a particular kind is foreseeable to the claimant’s person then the claimant may recover damages for the full extent of that damage, notwithstanding that the extent or the way in which the damage was caused was unforeseeable. The courts have generally taken a wide approach in claims for damages for personal injury to the question of whether the nature of the damage was reasonably foreseeable.32

Illustrations of liability

Liability has been demonstrated in the following circumstances:

  • Where a footballer performed a dangerous tackle.33
  • Where a motorcycle rider was responsible for a brake failure due to errors prior to the start of a race, causing injury to his sidecar passenger.34
  • Where a hockey player was injured as a result of a high follow-through by another player.35
  • Where a water skier was injured when he collided with a stationary boat due to the conduct of the boat driver.36

Liability was not been established in these circumstances:

  • Where a footballer was injured by another player, when both had reached the ball at the same time and where the tackle was adjudged not to have been a foul or late.37
  • Where a footballer had mis-timed a tackle and made an error of judgment but nothing more.38
  • Where a rugby player sued a player on the opposing side for collapsing a scrum.39
  • A sidecar passenger’s claim against the motorcycle rider for injuries sustained during a race, due to having missed a gear.40


A participant may also be liable to another participant for the civil wrong of trespass to the person and in more specifically in the tort of battery, the intentional or reckless infliction of unlawful physical contact. In Letang v Cooper,41 it was suggested by Lord Denning MR that assault was confined to cases where the infliction of contact was deliberate and negligence to circumstances where there was no intention, however intention to cause injury or damage is not an absolute requirement of the tort of battery as it may be made out where the perpetrator is reckless as to whether their use of force will result in injury.42 There is therefore a degree of overlap between trespass and negligence to that extent although a claimant is unlikely to find themselves in any better position by pleading their case in trespass rather than in negligence. While trespass is actionable per se and as such does not require the claimant to prove physical harm to make out an actionable claim, the reason that the claim will have been brought at all will have been to enable the claimant to recover damages for their injury. As such the claimant will have to prove the nature of his or her injury and its extent in any event. However an assault may be established even if it results from a misjudgment by a player or where perpetrated in the “heat of the moment”.

As a battery is inflicted on the imposition of unlawful contact and the acceptance of or the giving of consent to physical contact renders that contact lawful, in circumstances where a defendant can demonstrate consent to the contact the claimant will fail to prove an essential element of this head of liability. That consent may be express or implied but in the sporting context it is usually implied from conduct. Participation in sport is generally considered to be a lawful justification for the giving of permission to be exposed to the risk of harm within the boundaries of the rules and safeguards of the sport. The implied consent is usually taken to be consent to contact that can reasonably be expected to occur during the course of the sport although the extent of the consent given is a matter for the court to determine in light of all of the facts and circumstances of the case.43

The burden of proof in trespass remains on the claimant,44 however where it is obvious that the contact in question was not consented to, the burden of proving a lawful excuse for the contact lies on the defendant. In most cases involving sporting contests the defendant will be able to demonstrate that implied consent to at least some contact was given and the real issue for the court will be whether the contact in question exceeded the extent of the consent given and thereby found a successful claim in trespass to the person.

Illustrations of liability

Liability has been demonstrated in circumstances45 where assaults have occurred ‘off the ball’,46 and where injury resulted as a result of a late tackle with two feet in an amateur football match.47


Although less common as a cause of action for damages for personal injury in the sporting context, there may be circumstances in which a claim in contract arises when considering careless activity on the sports field. Such circumstances might include those where a participant in an event agrees to abide by terms and conditions of entry, which may by express or implied terms require the participants to exercise at least reasonable care for their fellow competitors and spectators.48 If the standard of care required by any such terms are no different to those imposed in negligence at common law then pleading the additional head of liability may confer no additional benefit but there may be circumstances in which the standard capable of being applied as a result of the contract are greater than those imposed in negligence or in which the contractual measure of damages differs from the tortious measure. It is therefore important for practitioners to consider whether on the facts of the particular case before them, there may be scope for such a contractual argument in addition to any perhaps more obvious complaint in negligence.49

Adam Walker
Patricia Leonard
7 Bedford Row

Click here for more details or to order the book

1Clerk & Lindsell on Torts, 21st edition, Chapter 8 at 8-04.

2A comparison might be drawn here to a claim in negligence in the clinical context in which a patient signs a consent form consenting to a risk of a recognized complication, where that complication arises, but the claimant is able to demonstrate that it did so not due to the general risk of that complication associated with the procedure, but due to a negligent failure.

3Now expressly acknowledged in section 1 of the Compensation Act 2006 which provides that, “A court considering a claim in negligent 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”, although this has perhaps always been recognised by the fact that contact sports such as boxing where the likelihood of injury is high are permitted at all.

4Caparo Industries plc v Dickman [1990] 2 AC 605 applying Donoghue v Stevenson [1932] AC 562.

5See Sir John Donaldson MR in Condon v Basi [1985] 1 WLR 866 at 867F, citing a passage of Chief Justice Barwick in Rootes v Shelton [1968] ALR 33, although the Court of Appeal in Condon v Basi preferred the view of Kitto J. in Rootes v Shelton, that there is a general duty to take reasonable care, which is fact specific and which one considers at the breach of duty stage.

6In Condon v Basi (supra, n.5) Sir John Donaldson MR observed that, “...there will of course be a higher degree of care required of a player in a First Division football match than of a player in a Fourth Division football match” at 868F-G.

7Wilks v Cheltenham Homeguard Motor Cycle & Light Car Club [1971] 1 WLR 668.

8E.g. as in Caldwell v Maguire [2001] EWCA Civ 1054.

9Supra n.5.

10That test had been applied however in a number of cases following Wooldridge v Sumner [1963] 2 QB 43, Wilks (supra n.7) and Harrison v Vincent [1982] RTR 8.

11[1997] PIQR P133, CA.

12[2001] EWCA Civ 1054.

13As had already been observed by Lord Bingham LCJ, in Smoldon v Whitworth & Nolan [1997] PIQR P133.

14Including Condon (supra, n.5), Wooldridge [1963] 2 QB 43 (reckless disregard – spectator), Wilks v Cheltenham Homeguard Motor Cycle Co & Light Car Cycle Club [1971] 1 WLR 668 (reckless disregard – spectator), Harrison v Vincent (ordinary standard applied regarding injury due to defective brakes) and Smoldon (supra, n.13).

15Beloff et. al., Sports Law, Second Edition, 2012, p142 at 5.43.

16Kitto J. in McHale v Watson (1966) 115 CLR.

17In Condon v Basi (supra, n.5) Sir John Donaldson MR observed that, “..there will of course be a higher degree of care required of a player in a First Division football match than of a player in a Fourth Division football match” at 868F-G.

18See in particular Nettleship v Weston [1971] 2 QB 691 in which it was confirmed that a learner driver is held to the same standard as a qualified driver.

19Beloff, Sports Law, 2nd edition 2012, p143 at 5.45 and Kevan et. al., Sports Personal Injury: Law and Practice, 2002, p40 at 3.23.

20E.g. as in Elliott v Saunders & Liverpool FC, unreported, 10 Jun 1994, (1) Gordon Watson & (2) Bradford City AFC (1983) Ltd v (1) Kevin Gray & Huddersfield Town AFC, Times, Nov 26, 1998, LTL 6/11/98 and Pitcher v Huddersfield Town Football Club Ltd, QBD, July 17, 2001.

21[2003] EWCA Civ 318.

22At para 28.

23See Smoldon [1997] PIQR P133 at 139.

24Kevan et. al, Sports Personal Injury: Law and Practice, 2002, at p51, 3.39.

25E.g. see Harrison v Vincent [1982] RTR 8.

26See Lord Donaldson MR at 868A-C.

27[1968] ALR 33.

28In Wright v Cheshire CC [1952] 2 All ER 789, the Court of Appeal overturned a liability decision against a defendant in respect of injury arising from gymnastic activities on the basis that the criticized conduct was in compliance with generally accepted practice and see also Gilsenan v Gunning (1982) 137 DLR 3d 252 (customs of the slopes relied upon in determining liability for a skiing accident), Leatherland v Edwards, unreported, 28 Oct 1998, (defendant in breach of safety rule intrinsic to uni-hockey) and cases referred to by Grayson, Sport & the Law, 3rd edition, 1999, at 278.

29Beloff et. al., Sports Law, 2nd edition, 2012, p142 at para 5.42.

30As in Harrison v Vincent (supra n.25) and in Lewis v Bucknall Golf Club [1993] CLT (Sh Ct) 43, in which the defendant failed to wait before driving off 5th tee, injuring the pursuer.

31An exception exists however in circumstances where the defendant’s conduct that is the subject of the civil claim has also resulted in him/her being convicted of an offence. In those circumstances the burden is reversed by operation of s.11 of the Civil Evidence Act 1968. The fact of the conviction is taken as proof of commission of the offence unless the contrary is proved.

32Hughes v Lord Advocate [1963] AC 837 and Bradford v Robinson Rentals [1967] 1 WLR 337.

33Condon v Basi (supra), McCord v Swansea City AFC & Cornforth (1996) QBD, 19 December 1996, Watson v Bradford City Association FC (1983) Ltd (1998) QBD, 29 October 1998, Rollason v Matthews (2006) Bristol CC, 31 Jan 2006, LTL 2/6/2006.

34Harrison v Vincent (supra, n.25).

35Leatherland v Edwards, 28 October 1998, QBD, Newman J., Lawtel 23/1/99.

36Rootes v Shelton [1968] ALR 33 (HC, Aus)

37Kerr v Willis [2009] EWCA Civ 1248.

38Pitcher v Huddersfield Town FC Ltd, 17 Jul 2001, QBD, Hallett J. and Elliott v Saunders, 10 Jun 1994, QBD, unreported.

39Smoldon v Whitworth [1997] ELR 115 (QBD) and 249 (CA).

40Harrison v Vincent (supra, n.25).

41[1965] 1 QB 232.

42Wilson v Pringle [1987] QB 237.

43Blake v Galloway [2004] EWCA Civ 814 at para 21.

44Fowler v Lanning [1959] 1 QB 426.

45See also Grayson, Sport & the Law, 3rd edition, 1999 at 277.

46R v Billinghurst [1978] Crim LR 553.

47R v Barnes [2004] EWCA Crim 3246, although the criminal conviction overturned due to inadequate summing up to the jury by the trial judge.

48It has been acknowledged by the courts that participation involves tacitly agreed understandings and conventions that are objectively ascertainable even in the absence of formal sporting rules – Blake v Galloway (supra, n.43).

49And where the contract is with the organizer only, whether there is scope for the application of the Contracts (Rights of Third Parties) Act 1999.

Image cc