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Articles | Tue 31st May, 2022
Sports injuries present a challenge to personal injury practitioners. The difficulties of establishing liability were recently examined by Mr. Justice Lane in the High Court judgment of Fulham Football Club v Jones  EWHC 1108 (QB). This article set out the facts of the case, the approaches taken by the Recorder and the High Court, and finally provides concluding thoughts on the impact of this judgment.
On 10th December 2016, a football match took place between the under 18 teams of Fulham Football Club and Swansea City Football Club. Towards the end of the first half of the match, Mr. Harris tackled Mr. Jones from his side. Mr. Jones suffered a serious injury to his right ankle, which ended his professional footballing career. Before the issuing of the claim, no complaint had been made in respect of tackle. Further, there had been no investigation, nor was any disciplinary action enforced.
At the hearing, both parties instructed expert witnesses. Namely, Mr. Hackett for the Claimant and Mr. Cumming for the Defendant.
Judgment of the Recorder
Recorder Craven highlighted the following rules of football from the expert report of Mr. Hackett:
In paragraph 56 of his judgment, he noted that breach of the rules is not determinative of liability, but that actual serious foul play which endangers the safety of an opponent or uses excessive force or brutality would very likely amount to negligence. He found that Mr. Harris tackled the Claimant by launching himself off the ground, such that he would not have “control over his flight except to some extent being able to move where his legs went” . This was a reckless manoeuvre involving excessive force which he should have realised would bring Mr. Jones down.
This was a serious error of judgement. He noted that the referee did not penalise Mr. Harris for a foul, but found that it did not negative his views about what actually happened. With respect to the expert evidence, the Recorder stated that he accepted the Claimant’s expert evidence, and rejected the evidence of the Defendant.
Judgment of the High Court
Mr. Justice Lane allowed the appeal on all four grounds outlined by the Defendant.
Ground 1: The Recorder’s Self-Direction
The appellant submitted that it was wrong for the recorder to give a self-direction that actual serious foul play would “very likely amount to negligence”. Counsel for the appellant suggested that a two-stage analysis was required. First, whether the defendant breached the rules of the game. Second, whether there was negligence.
It was agreed that the rules of football were not drafted with civil liability in mind. They were not concerned with whether the sanctions correlated with the law of negligence. The fact that such violations are the subject of sending-off did not mean that any send-off is very likely to amount to negligence.
Mr. Justice Lane found that Ground 1 was made out. He did not accept that a two-stage test was required. However, he did accept that the Recorder had closely aligned serious foul play with actionable negligence in paragraph 56 of his judgment. He wrongly reduced the ambit of the inquiry in order to answer the question of whether Mr. Harris’s tackle was negligent. Given this finding, the Recorder had suggested that it did not matter whether Mr. Harris made the tackle in a fast moving ‘heat of the moment context’. On the contrary, this was an important matter to ascertain whether Mr. Harris’s tackle was truly negligent.
Ground 2: Failure to give adequate reasons
The appellant complained that the recorder failed to give any reasons why he rejected outright the evidence of the Defendant’s expert. He merely concluded that he rejected the Defendant’s expert, but accepted the Claimant’s expert. The respondent suggested that the reasons for rejection were plain from reading the judgment as a whole. The recorder had accepted that the Claimant’s expert was right about Mr. Harris having leapt into the air, which even Mr. Harris accepted would be dangerous.
Mr. Justice Lane found that the fact that Mr. Harris leapt into the air could not be a reason for rejecting the expert view of Mr. Cumming. Even if it was such a reason, then it needed to be expressed in the judgment. Mr. Harris was not conceding that he was negligent. Further, Mr. Justice Lane found that the recorder merely formed his own view about the video evidence and concluded that it was contrary to the view of Mr. Cumming. This was inappropriate treatment of the Defendant’s expert evidence.
Ground 3: Failure to understand the realities of professional football
The appellant averred that the recorder imposed a counsel of perfection on Mr. Harris. He suggested that it did not matter whether the tackle was made in a “fast moving heat of the moment context”. Further, the recorder suggested that, in making the tackle, Mr. Harris “could not be sure what he might contact or do”. Mr. Justice Lane found that the recorder’s analysis set a standard of reckless behaviour which was far below what was needed to establish liability.
Ground 4: Failure to take relevant evidence into account
The appellant contended that the recorder failed to take into account relevant evidence. Namely, (1) the fact that the referee did not consider that a foul had been committed, nor had he issued a sanction, and (2) there was no adverse reaction from the spectators or other players.
Mr. Justice Lane found that he erred in law by failing to take into account the view of the referee. This was an important policy consideration when considering whether Mr. Harris’s tackle was negligent. It was not determinative, but it was part of the evidential landscape which the recorder had to traverse. However, the recorder did not fall into error by not considering the lack of adverse reaction from other players and spectators. Both experts agreed that it would be normal to expect no adverse reaction from any of the spectators.
Accordingly, Mr. Justice Lane held that the recorder’s judgment had to be set aside. He rejected the appellant’s submission that judgment must be entered in its favour.
There are two points which practitioners should draw on from reading this judgment. First, a mere breach of sporting rules does not equate to negligence. This is difficult, especially given the language of sporting rules is very similar to the language used when assessing civil liability. Indeed, in Caldwell v Maguire and Fitzgerald  EWCA Civ 1054, the Court of Appeal firmly affirmed the difference between ‘response by regulatory authority and response by the courts in the shape of a finding of legal liability’.
Second, the threshold for a finding of civil liability will be high. In the unreported judgment of Pitcher v Huddersfield Town Football (unreported, Queen’s Bench Division, 17th July 2021), Mrs. Justice Hallett describes successful cases as ‘football crimes’. Indeed, in Tylicki v Gibbons  EWHC 3470 (QB), HHJ Walden-Smith found that the defendant had been negligent on the basis that there had been a ‘reckless disregard’ for the safety of others. As Alistair McHenry notes in Football and the Law (De Marco QC, 2018), it will only be cases which are clearly unacceptable and beyond the playing culture of the sport, that such claims will succeed.