An Examination of Tortious Liability in Sport Law

CONTRIBUTED BY JEDIDIAH AKPATA

INTRODUCTION:

“Volenti non fit injuria” is a trite principle in the law of torts that “he who consents cannot complain”. In sports, however, would it be just if this doctrine is administered in its entirety? Would it be fair to victims of intentional and unscrupulous tackles that a ready-made defense is available to their assailants? Furthermore, to what end is this doctrine applicable to sport, and what are the remedies available to a victim?

This article seeks to answer these novel questions and other issues relating to torts and sports law. In order to appreciate the intricacies of this topic, we will succinctly dissect the various topics around this issue, ranging from; the Importance of the law of tort in sport, torts in sport, liability of contestants, spectators, third parties and onlookers, to defenses to civil liability in sporting events.

IMPORTANCE OF THE LAW OF TORTS IN SPORT

It is commonplace that the importance of the Law of Tort is to give recompense to victims of loss suffered as a result of another person’s fault.[1] In relation to Sports, Torts can be used by an injured athlete to receive compensation for injuries resulting from an act of particular violence.[2]

The general yet erroneous idea that law does not run on the playing field and that sporting sanctions do not define the limits of accountability for on-field misdemeanours, has been rightly dispelled in recent years by the increasing number of successful criminal and civil trials in which claimants have sought compensation for injuries in the course of sporting activities.[3] This, therefore, puts to bed the assumption that what happens on the field stays on the field. Participants of Sporting activities can now sue and seek damages or compensation for accidents that occur while engaged in their sport-related activity.

There is a plethora of potential causes of action that injured sportsmen may consider. The most popular of the pack is the action in either trespass to the person or negligence against the opponent who caused the injury. Similarly, in professional sports, the opposing club may further be vicariously liable for the injuries caused by one of its employees i.e., a player.[4] Liability may equally arise against a match official who fails to keep adequate control of the game, thus occasioning injustice or unfairness, or in extreme events, injuries may occur from the failure of the sport’s official to keep fairly and/or strictly to the rules. In the same vein, governing bodies may be held liable if it has failed to supply adequate guidance, safety procedure, and apparatus, it may be liable.

EXAMPLES OF TORTS IN SPORT

There are two common acts that amount to tort, namely; trespass to person and negligence.

We should note however that while trespass to a person on its own could amount to crime if grievous bodily harm is caused, it could on the other hand, amount to tort where normal rules for the sport are being violated.

TRESPASS TO PERSON

Where there is an intention to apply unlawful force on the part of the tackler, there can be an action for the tort of trespass to the person especially and specifically in battery[5].

Assault on the other hand is another type of trespass to a person. It is causing another person reasonable fear of the infliction of battery on him/her as opposed to battery which is the actual, intentional application of force to the person of another without lawful justification.

DEFENSES OF TRESPASS TO PERSON IN SPORT

According to Benjamin A et al, the possible defense to battery includes; Consent (volenti) and contributory negligence. Volenti being a full defense resulting in the total failure of a claim; it is applicable in line with the maxim “volenti non fit injuria”, the claimant has already assumed the risks of injury.

Contributory negligence, on the other hand, is a partial defense in the sense that where it is shown that the claimant contributed to his injury or loss, the Court can at its discretion, reduce the damages that ought to be awarded. However, in cases of contributory negligence, it is not for the claimant to prove that contributory negligence occurred, the onus is on the defendant to prove to the Court that the claimant has in his way contributed to the injury or loss.

NEGLIGENCE

The most common cause of action to recover compensation for injuries suffered during the course of play is negligence. The basis of the tort of negligence is the claim that the defendant failed to observe the necessary standard of care owed to the claimant and that this negligent act caused the claimant’s injuries.[6]

Modern law of negligence found its foundation in the case of Donoghue v. Stevenson[7], where the House of Lords addressed the question of when a relationship between individuals gives rise to a duty of care, a breach of which lands in damages.[8]

As put by Lord Esher in the case of Haven v. Pender[9]:

“whenever one person is by circumstance placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of inquiry to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger”

The most common cause of action to sport participation is the issue of injury suffered by a player or competitor as a result of negligence. The basis of the tort of negligence is the claim that the defendant failed to observe the necessary standard of care owed to the claimant and that this negligent act caused the claimant injuries.[10]

The liability for negligence is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. In the practical world, moral codes cannot be treated as giving rights hence rules of law arose limiting the range of complaints and the extent of their remedy, the moral code that you must love your neighbour becomes in law; you must not injure your neighbour. A neighbour in this sense would be persons who are so closely and directly affected by your actions, that you ought to reasonably have them in contemplation.

Lord Atkin in his in his wisdom gave qualified approval to the earlier principles emanating from Lord Esher, firstly in the case of Heaven v. Pander[11] and later in Lievre v. Gould[12] in the former case, he stated thus:[13]

“whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did {sic} think that would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to other person or property of the other, a duty arises to use ordinary care and skill”

Thus, in considering the issue of civil liability in sports, it should be noted that civil liability in sports is not a distinct jurisprudence, separate from the established general principle.[14] The position was put clearly in 1927 by Swift J in Leghorn v. Oldham[15] in giving judgment for the plaintiff who had been injured when struck by the defendant’s golf club while swinging. The Court stated thus:

“Games might be and are the serious business of life to many people. It would be extraordinary to say that people could not recover from injuries sustained in the business of life; regardless of the form of sport which everyone knew quite well to be serious business transactions for the persons engaged in them”.

The main distinction between an action in assault and one in negligence is intent without evidential burden of proving that a player set out to cause injury to another. Actions in negligence are far more likely to succeed than actions in assault.[16]

In Watson and Bradford City v. Gray and Huddersfield Town,[17] Hopper J remarked that:

“The witnesses were at one saying that professional footballers do not set out to break someone’s leg”

As a general starting point, this must surely be right and therefore claims of negligence in which the claimant does not need to show his intent is very much where the case law is focused. The key to the principle of negligence as long-established is that the law demands you take reasonable care to avoid injuring your neighbour put unto the football pitch. Thus, a player has a duty to take reasonable care to avoid injuring another player in the context of the game.[18]

William Norris QC in his essay “A duty of care in sport” asserted in favour of this entrenched principle. He averred that what makes sport special from a legal point of view is that all parties realize it involves risk and that, where there is a duty; the standard of care must allow for particular and special circumstances in which harm may arise.[19]

In the 1985 case of Condon v. Basii,[20] a tackle which the match referee described as reckless and dangerous, was made in an excitable manner without thought of consequence. Sir John Donaldson the presiding Judge was so satisfied that he held that Basii’s tackle showed a ‘reckless disregard for Condon’s safety which fall far below the standard which might reasonably be expected of anyone pursuing the game. This case paved way for the principle of establishing liability for bad tackles in football and the duty of care for clean football tackles.

In order for a Claimant to claim liability against another person for not showing reasonable care, the claimant must establish:

  1. That the other players owe him a duty to take care and not injure him in the course of play.
  2. Secondly, it must be established that the defendants’ play was of such a degree of negligence that the duty was breached.
  3. Thirdly, that the claimant suffered a reasonably foreseeable injury and;
  4. Loss as a result of that injury.

Thus, from the foregoing, it is apt to conclude that negligence is a conduct that falls below a reasonable man’s standard.

ELEMENTS THAT THE CLAIMANT MUST PROVE

  1. DUTY OF CARE:

There is a relationship between the defendant and the plaintiff, so the defendant owes a duty to exercise reasonable care to the plaintiff. Thus, duty could arise out of a relationship, such as between a general manager of a sports team and a spectator. It could arise out of a voluntary assumption of a duty, such as a coach giving a player a ride home from a game or duty imposed by statute, such as a law requiring that spectator’s bags be searched before entering a stadium. In these relationships, the defendant has a duty to anticipate foreseeable dangers and take necessary precautions to protect the plaintiff.

  1. BREACH OF DUTY OF CARE:

If the defendant’s action or failure to act fall below the standard applicable, the defendant is said to be in breach of the duty of care owed.

  1. PROXIMATE CAUSE:

There must be a proximate causal connection between the negligent conduct and the resulting injury.

  1. DAMAGES:

The plaintiff has to suffer an actual injury or damage.

CONCLUSION

The implications of legal liability for sports development are multifarious and have greatly enhanced both law and sports. It has helped to refine the ways games or sports are played or carried out, and as such, if players are aware that they could suffer potential liability and will be sued for dangerous play, they will be more careful and adhere to the rules of the game. It is interesting to note that this intersection between sports and tort is not novel anymore but has helped the transition of law from the pages of the books and the Courts into the field of play. Thereby ensuring that the definition of law as a “tool for social engineering” permeates into every facet of human life. Furthermore, tort in law makes officiating officials perform their duties with sincerity and seriousness thus, ensuring safety and minimal damages. Managers of sports are now obligated to ensure that facilities and equipment are in good condition for sporting activities as failure to take proactive steps may render them liable for breaches that occur.

  1. Rogers WVH; Winfield & Jolowicz on Tort (15th Edn., London, Sweet and Maxwell, 1998)
  2. Simon Gardiner (n 2) p.693
  3. Adams Lewis and Jonathan Taylor Sport: Law and Practice (2nd edn., London, TOHCL Publishing, 2010) p.712
  4. Op.cit Simon Gardiner, et al, (n 2) p. 693.
  5. But where there is no intention, negligence should be the cause of action: see letang v cooper [1965] 1Q.B 232,240
  6. Simon Gardiner, et al, (n 2) p. 695.
  7. (1932) AC 562
  8. Adams Lewis and Jonathan Taylor Sport: Law and Practice (2nd edn., London, TOHCL Publishing, 2010) p.713
  9. (1883) 11 QBD 503
  10. Simon Gardiner, et al, (n 2) p. 695.
  11. [1883] 11 QBD 503
  12. [1893] 1 QB 491
  13. [1883] 11 QBD 503 at 509
  14. Adam and Taylor op cit (n 79) p. 715
  15. [1927] 43 TLR 465 at 466
  16. Nick De Marco, op cit, (n 21) p298
  17. 1997-w-no 97
  18. Nick De Marco, op cit, (n 21) p299
  19. (2017) 3 JPI Law 154-167
  20. (1985) 1 WLR 866

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