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Sports Injuries and the Law - Michelle Liddy, Oriel Chambers

22/11/20.Very often in sports there are incidents which lawyers must wonder about in a way that others may not. When Luis Suarez bit off more than he could chew in Liverpool’s Premier League encounter with Chelsea in April 2013 there was a storm of controversy. If the same incident had occurred on the street rather than on the pitch nobody would have been surprised if civil or even criminal action was initiated.The 10 match ban and a fine seemed a small price to pay for perpetrating an assault on somebody, especially given that Suarez seemed to make something of a habit of this. Do incidents like this give the misleading impression that any incident which occurs on the pitch won’t attract civil or criminal liability?

It is relevant that in terms of fitness and strength players nowadays are significantly bigger and stronger than their counterparts were 20 years ago. Consequently, aggressive play will result in more significant injuries which would attract serious damages if they were inflicted in different circumstances. Not only is the severity of injuries increasing but the frequency with which they are occurring is increasing also. In the 1960s and 1970s in England there was only one serious spinal injury from rugby every 4 years. There was a dramatic increase from then on and by March 1981 there were 13 players hospitalised with broken necks.[1]

There are those who regard suing for incidents on the pitch as being inappropriate and unsporting. One article opposing litigation arising out of sports says that “for a footballer to sue for “negligence” is like a climber suing a mountain”.[2] That has not stopped the volume of sports injury litigation before the Courts increasing every year and the awards of compensation can be significant. In 2000 a school’s rugby player was awarded £100,000 after he sustained a broken neck[3] while the Injured party in Vowels v Evans[4] was reportedly awarded £91,000 for injuries which rendered him paraplegic.

The focus of the following will be on the implications of injuries inflicted by one participant on another even though the ranges of the duty of care are by no means limited to that situation.

1. Basic principles

The majority of the case law in terms of sports injuries has developed in England or Australia but as the general legal principles of trespass to the person and negligence are very similar in both jurisdictions the case law is useful. An action arising out of a sporting event can be grounded on trespass but is usually brought in negligence due to the fact that a trespass must be committed intentionally and there are difficulties in proving that in a sporting context.

1.1 Bringing an action in trespass

As a general rule consent is a defence to a claim in trespass. In a sporting context that defence will only succeed insofar as the act complained of was within the rules of the game (or as we will come to later -within the accepted culture of the game). Support for this proposition can be found in the Australian case of Rootes v Shelton (although that case was a negligence one there are some interesting points that relate to consent and trespass).[5] In the course of his judgment Barwick CJ said that;

(b)y engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are…..[6]

Similarly in McNamara v Duncan[7] the Injured party suffered a fractured skull in the course of an Australian rules football match following a sharp blow to the head inflicted by the Defendant and sought damages for trespass to the person. In respect of the level of contact to which players consent Fox J, quoting a passage from Street on Torts, held that sports players consented to

those tackles which the rules permit, and, it is thought to those tackles contravening the rules where the rule infringed is framed to maintain the skill of the game; but otherwise if his opponent gouges out an eye or perhaps even tackles against the rules and dangerously.[8]

There are some advantages to an action in trespass. In a trespass action, once direct injury is shown, the onus shifts to the Defendant to prove that he neither acted recklessly nor negligently. Also, trespass may be more advantageous in terms of remoteness and in terms of proof of damage since trespass is actionable per se and negligence is not.

1.2 Bringing an action in negligence

As noted earlier the majority of cases arising out of sporting fixtures are negligence actions. As a broad statement of principle there is certainly a duty of care owed from one participant to another and that duty is to avoid causing injury to others. However, a duty of care has been held to exist between;

  1. Occupiers of a sports facility and those on the premises[9] and as we will see later that duty applies to players as well as spectators.[10]

  2. “Sports Supervisors” who include inter alia trainers, managers, medical advisors, administrators and organisers and those participating or attending.[11]

  3. Referees and other match officials and participants.[12]

  4. Coaches and their students.[13]

  5. Expectant mothers and sporting organisers to their unborn children.[14]

  6. Organisers have been held to owe a duty to ensure participants are not suffering from conditions such as Hepatitis or HIV which could be transferred during the fixture.[15]

It is always the case that the Courts ought to be very cautious in expanding duties of care. The insurance premia associated with sporting facilities and clubs are increasing each time the duty of care is extended with the result that many sports facilities have to cease operating.

In assessing whether there has been a breach of the duty there are a number of factors to be looked at such as the sport which is being played, the rules and “playing culture” of same, the level at which it is being played and the circumstances of the injury. The “playing culture” of the sport refers to certain actions which may be outside the rules of the game but which are generally accepted as forming part of the game. Allowing the playing culture to have too much of an impact has the danger of providing a safety net to those who breach the rules and cause injury to others. In fact there are so many factors that are to be taken into account that essentially each case will turn on its facts but previous case law provides some guidance in relation to both the duty which is owed and the point at which it is breached.

One of the earliest cases was Rootes v Shelton[16]. Again the Court noted that there are certain risks which participants in a sport are deemed to have voluntarily accepted but that does not negate the duty of one participant to the other.[17] In this instance the Claimant, who was a water skier, sued the driver of the towing boat for failure to take due control of the boat and for failing to warn him of the presence of a stationery boat with which he collided. Barwick CJ in this judgment held that the purpose of the driver was to warn the water skiers of any obstruction and while collision with any obstacle which the driver cannot see is a risk inherent in the sport collision with an obstacle which the driver can see is not. Barwick CJ went on to say that the injured party was entitled to expect that the driver would carry out his function with reasonable care and that the drivers’ actions on the day amounted to a breach of that duty.[18] Kitto J preferred a different approach, not based on what a participant was assumed to have voluntarily accepted but based upon a general standard of care which is to be looked at in light of the circumstances of the game.[19] He held that

With the greatest respect to the learned judges who dealt with this case in the Supreme Court, I think it is a mistake to suppose that the case is concerned with "changing social needs" or with "a proposed new field of liability in negligence", or that it is to be decided by "designing" a rule. And, if I may be pardoned for saying so, to discuss the case in terms of "judicial policy" and "social expediency" is to introduce deleterious foreign matter into the waters of the common law — in which, after all, we have no more than riparian rights. I cannot think that there is anything new or mysterious about the application of the law of negligence to a sport or a game[20]

Whichever way it is looked at the result is the same.

When the issue first came before the English Courts in the case of Condon v Basi [21]Lord Donaldson MR, in preferring the approach of Kitto J, held that there is a general standard of care whereby all participants are under a duty to take all reasonable care to avoid causing injury to each other but that duty will be looked at in the light of the circumstances of the injury and the sport.[22]

In Smoldon v Whitworth & Anor[23] a rugby player who had been seriously injured when a scrum collapsed sued the referee of the match in negligence. The Court noted that rugby was a very fast game and it was not possible fore the referee to be in all parts of the pitch at the once. The Court held that the duty of care which the referee owed was that which was appropriate in all the circumstances and that the circumstances were of paramount importance. Full account had to be taken of the factual context in which the referee exercised his functions and he could not be properly held liable for errors of judgment, oversight or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability, being a normal negligence test which takes account of the circumstances, was a high one. It would not easily be crossed which should allay the concerns of those who are concerned about the intervention of the law affecting a sport which was so popular.

It is worth noting that after Condon but before Smoldon a number of cases were decided on the basis of an ordinary standard of negligence which did not make it a requirement to take account of all the circumstances. Essentially the fact that it was a sporting fixture did not have too much an impact on the way in which matters were viewed. The cases of McCord v Swansea City AFC[24] and Watson v Grey and Another[25] were both decided in this fashion and led to considerable confusion. However in later cases such as Caldwell v Maguire[26] and Blake v Galloway[27] the Court returned to the Smoldon type test taking into account all the circumstances and providing clarity to the law and clarifying that the standard for negligence in sport is an ordinary negligence test which takes account of all the circumstances in which the injury occurred.

In the later case of Vowels v Evans & Another[28] the Court proceeded by using the established principles of negligence and adapting them to a sporting context as Lord Donaldson had done. There was nothing complex in the manner which the principles were applied and that is always welcome.

It would not be advisable for the Courts to lay out too many specific factors to be taken into account in sports injury cases. All sports have different levels of contact and even within sports the level of contact changes depending on the level at which the sport is played. Sport develops as players change also and having specific criteria would just result in the approach having to be constantly modified. While it is true that the “taking account of all the circumstances” test doesn’t exactly provide consistency it is the better option in the long run.

What we can take from this is that the facts of each case are of paramount importance and liability can be imposed on two bases. Firstly, if the injury occurred by reason of an action which is not one of the inherent risks of the sport the injured party is entitled to recover. Secondly, an injured party may succeed on the basis that a general duty of care, which is tailored to a sporting scenario, has been breached.

1.3 The applicability of volenti non fit injuria

Suffice it to say that considering the aforementioned cases there is generally very little chance of a successful defence of volenti non fit injuria being made out by Defendant in a sports injury case. Clearly participation in sports will not be regarded as carte blanche for another player to inflict whatever injury they like on you, under the guise of a legitimate tackle, and then claim that participation in the game amounted to consent to same. There are some forms of harm to which a participant will have consented but deciding where the consent expired is the key.

The case of Watson v British Boxing Board of Control[29] demonstrates the manner in which volenti is treated in cases of this nature. The Claimant fought Chris Eubank in a boxing match under the supervision of the Defendant. There were regulations in place as regards medical care but when the Claimant was knocked out by Eubank it took 7 minutes for a Doctor to give him attention. He was given no oxygen and sent to a hospital with no neurosurgery department. By the time he was sent to an appropriate facility he has suffered serious brain damage. He was in a coma for 40 days and a wheelchair for 6 years. The Claimant sued the Defendant on the basis that it was they who owed him the duty of care. In the High Court he was successful and the Defendant appealed. The Court of Appeal upheld the decision. Essentially the Claimant had consented to the boxing match but not to inadequate in the event that he suffered an injury in the course of the match.

1.4 Who to sue?

There is nothing to stop a player from suing the player who caused the injury. In a South African case a schools rugby player suffered a broken neck when a player from the opposing team caused the scrum to collapse. His case against the coach of the opposing team, the principal of the opposing teams’ school and the local education authority settled. It was held by the Western Cape High Court that the player who caused the scrum to collapse was liable for the injury and obliged to pay compensation.[30] It is worth noting that while the player was held liable the Injured party had not taken the chance of suing him alone, which could have been nothing more than a pyrrhic victory. In an amateur situation it is always advisable to sue the other relevant bodies (in this case the local education authority etc) to be certain of recovering any award.

The Vowels case[31]came about as a result of a semi-professional rugby match when a player was rendered paraplegic as a result of a collapsed scrum. The injured party sued the referee, the Welsh Rugby Union (who had appointed him) and various other members of the board of the Welsh Rugby Union for negligence. It is worth noting that this case differs from the South African one mentioned above in that the referee had been appointed by a governing body (who accepted that if the referee was liable then they were vicariously liable), had received intensive training and was by no means taking on the role by way of a casual arrangement. The Court, in giving a very comprehensive judgment, held inter alia;

  1. that it was fair, just and reasonable for the players to rely on the referee to exercise reasonable care in performing his role and as the relationship between player and referee was sufficiently proximate it was reasonably foreseeable that failure by the referee to exercise reasonable care could result in injury to a player;

  2. that while the referee most certainly owed a duty of care to the players the threshold for liability had to be high;

  3. that on the facts of the case the referee had abdicated his responsibility for the decision making in the match and as such he had breached the duty of care which he owed to the Injured party and was liable for the injuries.[32]

Of course, this case does turn on the fact that the referee failed to apply the rules correctly which resulted in a player taking on a specialist role in the game which he was not suited to. It was as a result of this player’s inexperience that the scrum collapsed. It will not always be appropriate to sue the referee and the liability of the referee really depends on whether there is some failure in the application of the rules which resulted in injury.

In a professional or semi professional capacity the most obvious Defendant, in terms of being a mark for damages, is the club. The club is an employer and the player an employee so there is nothing novel in that, so much so that the discussion of vicarious liability in the case law has been very limited. Following Condon came Elliott v Saunders and Liverpool Football Club[33] which acknowledged that a club could be vicariously liable for the injury caused to another player.[34] After that there were a number of other cases[35] which all came to the same conclusion and from that point on this issue has been fairly non-contentious and that is demonstrated by the fact that in a number of the more recent cases the player who caused the injury was not even joined as a defendant to the proceedings e.g. Pitcher v Huddersfield Town Football Club[36] and Gaynor v Blackpool Football Club.[37]

One wonders whether this is an area which could find the threshold for vicarious liability being lowered rather than increased in the light of Lister v Hesley Hall Ltd[38] and Mattis v Pollock t/a Flamingo’s Nightclub.[39] Both of those cases resulted in employers being held vicariously liable for acts which would previously have been held to be outside the scope of employment. It stands to reason that a club should not be allowed to escape liability for the actions of a player just because the act in question is so beyond what anybody could have expected in the context of a sports match, particularly when there is a worrying trend of dangerous tackles and violent conduct emerging. But the question is where will the line be drawn?

The difficulty which may arise in holding clubs vicariously liable is perhaps best demonstrated by the notorious incident between Roy Keane and Alf Inge Haaland. In a 2001 Manchester derby Roy Keane made a challenge on Haaland which seriously damaged Haalands’ knee. Keane was immediately sent off and subsequently banned for 4 matches. At this point had proceedings issued Manchester United would probably have been vicariously liable. However, that was not the end of the matter. In 2002 Keane published his autobiography in which he seemed to admit that the challenge on Haaland had been deliberate and had been in revenge for an incident which occurred the previous season when Haaland had been playing for Leeds United and had accused Keane of feigning injury. Once Keane had admitted that the challenge was deliberate and premeditated United’s vicarious liability could have become a much more complex issue. In Deatons v Flew[40] Dixon J held that “an act of passion and resentment” or a “spontaneous act of retributive justice” would be outside the course of employment. On that basis Manchester United may have escaped liability. Conversely there is an argument to be made which is not dissimilar to that made in Mattis. It is common knowledge that Roy Keane adopted an aggressive and confrontational style of play but he was still selected and encouraged by Manchester United. Would it be fair to allow Manchester United to escape liability because the ticking time bomb which they did nothing to defuse finally exploded? Recruiting, training and failing to discipline violent players could have resulted in Manchester United being liable in the same way as it did in Lister. The incident demonstrates that there may be difficulties in terms of vicarious liability where violent players are not disciplined and are allowed to carry out attacks on other players under the guise of a legitimate challenge.

It is also possible to sue the owner and/or occupier of the sporting facility if a player suffers injury as a result of its condition but the Courts have been eager not to over regulate the area due to the social utility of sport. In Sutton v Syston Rugby Football Club[41] the Injured party was diving to score a try and was injured when his knee collided with the remnants of a cricket boundary marker which was obscured under the grass. The club admitted a duty of care under occupiers liability and admitted that they had not conducted an inspection of the pitch before the match. The main questions were what is the level of the duty to inspect the pitch and would such an inspection have revealed the marker. What was required was that one or more persons should walk the pitch at a normal walking pace to see if there are any dangers. Unfortunately for the injured party the Court held that even had the walk of the pitch occurred the marker would not have been seen as it was below the grass. The Court was keen not to over regulate the area noting the Court;

must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from courts than it should be.[42]

1.5 The Rules of the game

In relation to the impact of the rules of the game the Court held in McNamara[43] that the blow in question was intentional and that it could “hardly be understood as an act in the ordinary, legitimate, course of a game of football”. It also constituted a “serious infringement of the rules” and “(t)he risk of being injured by such an act is not part of the game”[44] On that basis the Defendant was liable for the injuries. The relevance of the rules of the game came up in England in May v Strong[45]. Here, the injured party who was a 19-year-old semi-professional footballer suffered a career ending injury as a result of a very late tackle. The tackle was from behind and was after he had laid off the ball to another player. The Defendant had been immediately sent off for violent conduct and serious foul play. The trial Judge held that the tackle amounted to an assault and consideration was given to the rules of the game and the referees’ decision at the time. Again in Vowels[46] Lord Phillips gave significant consideration to the rules of the game because had the rules been followed correctly the injured party would not have been playing in the position he was in at the time of the injury. The Court held that:

Rugby football is an inherently dangerous sport. Some of the rules are specifically designed to minimise the inherent dangers. Players are dependent for their safety on the due enforcement of the rules. The role of the referee is to enforce the rules. Where a referee undertakes to perform that role, it seems to us manifestly fair, just and reasonable that the players should be entitled to rely upon the referee to exercise reasonable care in so doing.[47]

In that case the rules of the game were held to tie into the duty of care which the referee was held to owe to the players. While it could not be said that the rules of the game are always determinative of the matter, they will have an impact particularly if a rule which is designed to protect players is not enforced and leads to injury.


It would seem that this issue is one which troubled the Courts of both England and Australia for some time. The principles are by now fairly well settled and the approach adopted in England and Wales is both sensible and reasonable. The possible expansion of the vicarious liability which could be imposed on clubs is to be welcomed and can hopefully serve as a warning to clubs to impress upon their players the dangers of engaging in violent or reckless conduct on the pitch. This will have the benefit for the club of avoiding large awards of damages and the advantage of cleaning up sports which could be sliding down a slippery slope where violence is too acceptable and aggression successfully masked as a competitive nature.

If sports injuries are dealt with seriously enough by the sporting organizations and the Judiciary the level of injury in sport can be reduced. It is not appropriate to over regulate the area but complete lack of action can lead to more serious injuries occurring more frequently if players think there are no consequences apart from a ban or a fine.

[1] Silver, JR 2002 “The impact of the 21st Century on rugby injuries” Spinal Cord (2002) 552-559 at 552.

[2] Liddle, R. “For a footballer to sue for “negligence” is like a climber suing a mountain”. 2008. The Spectator via

[3] “Rugby Injury wins £100,000 damages”. BBC news 8th August 2001.

[4] [2003] 1 WLR 1607.

[5] (1967) 116 CLR 383

[6]Ibid at para. 6

[7] (1971) 26 ALR 584

[8]Ibid at 588.

[9]Francis v Cockrell [1870] LR 5 QB 184 and Welsh v Canterbury (1894) 10 TLR 478.

[10] But note also Tomlinson v Congleton BC [2003] UKHL 47 an Occupiers Liability case concerning damages when a trespasser suffered injuries while diving.

[11]Watson v Haines. Unreported, 10 April 1987, Supreme Court NSW Allen J.

[12]Vowels v Evans [2003] All ER 134 and Smolden v Whitworth [1996] TLR 249.

[13] This has been held to be the case in the USA.

[14]Lynch v Lynch (1991) and X v Powell (1991) 23 NSWLR 26.

[15]Hall v Victorian Amateur Football Association (1999) VCAT AD 30.

[16] Supra n.5

[17]Ibid at 34


[19]Ibid at 37


[21] [1985] 1 WLR 866 at 868.


[23] [1996] TLR 249.

[24] 1996 EWHC (QB) 1

[25] [1998] The Law Times, November 26 1998.

[26] [2001] EWCA Civ 1054.

[27] [2004] EWCA Civ 814.

[28]Supra n. 4

[29] [2001] QB 1134.

[30] Schroeder. F 2011 “Court Victory for Paralysed Rugby Player” The Cape Argus 5th May 2011. Available from [23rd April 2013] And Laing. A 2011 “Rugby Player to be awarded compensation for scrum ‘jack knife’” The Telegraph 5th May 2011. Available from

[31]Supra n.4

[32] Ibid.

[33] Unreported, English High Court 10th June 1994.

[34] It is worth noting that this was a claim in negligence and there was some discussion as to whether a claim of vicarious liability would succeed if the claim was grounded on trespass. This case failed on its facts in any event.

[35]McCord v Cornforth and Swansea City Football Club “Football: £250,000 award for foul that ruined career” The Independent 20th December 1996. Available from and Watson and Bradford City Football Club v Gray and Huddersfield Town Football Club “Watson awarded in dangerous tackle case” BBC News 29th October 1998. Available at

[36] (2001) WL 753397.

[37] [2002] CLY 3280.

[38] [2002] 1 AC 215.

[39] [2003] IRLR 603.

[40] (1949) 79 CLR 370.

[41] [2011] EWCA Civ 1182.

[42]Ibid at para 18.

[43]Supra n7.

[44]Ibid at 587.

[45] [1991] B.P.I.L.S 2274

[46]Supra n4.

[47]Ibid at 1617.

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