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]