Negligence and the Standard of Care in Sport. The recent decision by Manchester County Court in awarding damages to a footballer for injuries sustained during a non-league match has once again brought the assessment as to the standard of care applicable to cases involving sports negligence sharply in to focus. Whether though the case in which Rees Welsh sued Ossett Town, a non-league football club from West Yorkshire, for a tackle by their employee (Sam Akeroyd) in which he sustained a badly broken ankle is “landmark” as some media outlets have reported, overlooks, perhaps, the judgments handed down in previous cases.

A unique characteristic of sport is the acceptance of the risks involved, which together with multiple participants, their relationships, conduct and welfare as between all, inevitably creates a broader set of issues to consider. As a result of its somewhat combative nature there are numerous cases in football whereby the courts have wrestled with the extent by which participants may be entitled to compensation for incidents resulting from allegations of negligence, with some of the decisions leading to a confused approach.

The law of negligence was developed from the “neighbour principle” established in Donoghue v Stevenson, which confirmed a defendant owed a duty of care not to cause harm. A breach of duty is demonstrated by standards of behaviour falling below accepted levels, with reasonably foreseeable harm flowing from the breach. In Wooldridge v Sumner the extent by which it applied to sport was confused by the notion that a participant does not accept the risk of negligence but rather, as Lord Diplock stated, “the consent to the lack of reasonable care that may produce that risk”. Here it was held a participant would be liable on showing “reckless disregard for others”. In Condon v Basi however, the Court found for the Claimant by applying established principles of negligence when it found a defendant liable for a “vicious tackle” that occurred during the normal course of a sporting contest. The decision contrasts with that of Pitcher v Huddersfield Town where, despite factual similarities with Condon, on the evidence the Court held the tackle was nothing more than an “error of judgement”.

Most sports have developed a type of culture – a norm or accepted way in which the game should be played. The Court expanded on this culture in Caldwell v Maguire and Fitzgerald. The Claimant, a professional jockey, was injured in an accident when horses ridden by the Defendants brought down his own. At first instance the Court found that despite being in breach of racing rules the Defendants’ carelessness did not amount to negligence. On appeal though Judge LJ held that there was a difference between an act that may be considered negligent and one resulting from “errors of judgment, oversights or lapses of attention.” The case confirmed liability for negligence does not simply attach to incidents that naturally occur in physically demanding sports, but rather for a claim to succeed it is necessary to show conduct went beyond boundaries or “culture” of the sport.

The common law principle of a person who knowingly or voluntarily consents to and takes risk has operated as a complete defence to negligence (volenti non fit injura) but as can be seen from the examination of cases, it does not provide relief to a Defendant just because the act or injury happened in a sporting event. It is settled law that sports participants do not accept risk of injury caused by negligence. The various authorities demonstrate that injuries resulting from acts that are not part of sports “culture” go beyond the reasonable way in which sports should be played; they are not foreseeable and render volenti, in a sporting sense, extinct.

Welsh was awarded damages of £19,000.00 but with costs the total due is £135,000.00. In a further cruel twist it would appear that Ossett Town’s insurance did not protect it for costs or legal fees, meaning the future of the club is in jeopardy with plans to sell its ground underway. The case raises (perhaps as a practical side issue) why the Defendant chose to proceed with its defence without being sure of what insurance protection it had, but given each case turns on its own facts (which are presently unreported) commentary from Ossett Town’s Chairman that the decision may “open the floodgates” overlooks this finding is not new and is only applying previous long standing authority that if evidence points to a tackle by a participant on another as one that goes beyond the reasonable way in which a sport should be played, then negligence can be established.

Mark Scott
Sports Law, Disciplinary & Regulatory

Mark specialises in sports disciplinary disputes, appeals, and holds a Post-Graduate Certificate in Sports Law from De-Montfort University.  He is a member of British Canoeing’s Appeal and Disciplinary Panel and has adjudicated on selection appeals by athletes from the Canoe Sprint World Class Programme for the 2024 and 2028 Olympic Games. 

He is a Regional Discipline Panel member for the Football Association and is appointed to its National Serious Case Panel, to hear all types of serious disciplinary cases by participants on wide ranges of improper conduct.  As a Director of the Norfolk Cricket Board, he is discipline lead, and Chair of its Disciplinary Commission, advising cricket leagues, affiliated clubs, and participants on the ECB General and Recreational Conduct Regulations.

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