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Published: Fri, 02 Feb 2018
Sports Injury Law
In order to analyse and give advice to the issues raised in our question we must consider the law of tort and the criminal law along with the relevant case law in regards to sports/sports activities and whether an injured player is entitled to compensation for the injuries suffered from an act of participator violence. Also, we will look at the increasing impact of the environmental factors upon sports participation, namely, extreme heat.
Furthermore, we must consider whether any party; the team coach, match officials, supervisors or governing bodies are liable for the medical condition of the Buzz players.
Firstly, we will look at the law of tort in regards to sports. An injured sports player can make an action “in either trespass to the person or negligence against the opponent who caused the injury to them.”
The most suitable form of trespass to the person in sport is battery (any touching is battery, however, as regards sports requiring some this is obviously not the case). Subsequent to the decision in Letang, an action in a sports claim under tort must be under battery or negligence. There can be no negligent battery; only an intentional constitutes battery.
The action of battery is rarely used by the victim. The reason for this was given in the case of Elliot as being the fact that most insurance policies excluded cover for intentional injuries.
The complications in proving the mental element of trespass established the claim of negligence as the preferred action for sports injury cases.
“The law of negligence as applied to sports torts is, prima facie, the same as is applied to determine negligence in any other field of activity and is based on Lord Atkins’ ‘neighbourhood test’, Donoghue v Stevenson.” There are three requirements which need to be established for a successful negligence claim according this test; the defendant must owe to the claimant a duty to take reasonable care not to harm him, the defendant’s play of such standard must have breached that duty and that foreseeable harm was the result of the breach of duty (causation).
Furthermore, in Condon v Basi, it was established and reaffirmed that participants in sports contests owe a duty to all other participants to take reasonable care not to cause them harm. The existence of the duty of care as well as causation is not questioned. “The problems that have arisen are in respect of the degree of carelessness that is required of a defendant in order to establish negligence. On this point, the court in Condon failed to give any guidance.” “Thus, the question that needed to be decided by the courts post-Condon was whether a breach of the constitutive rules of a sport should be determinative of liability or whether some other standard should be applied.”
“All sports are played according not just to their formal constitutive rules but also in accordance with the informal and interpretative norms adhered to by players and officials.” (playing culture of the sport).
In the case of Caldwell v Maguire and Fitzgerald the Court of Appeal upheld the basic principles decided in the above cases and provided the detail that was missing from the previous decisions; “that in a sporting context, seeking to win and making a mere error of judgment in the pursuance of that legitimate aim should not invite liability for negligence.” The trial judge found that the defendants in this case were guilty of errors and misjudgements, but stated that they can be expected during the heat and tension of the race where there was a possibility of winning, thus they were not held liable for negligence. The Court of Appeal upheld the trial judge’s reasoning that “the test to be applied is negligence taking into account the prevailing circumstances” as well as the playing culture of the sport and what is acceptable or not.
This standard has been applied by the English courts in their more recent decisions. A normal application of the law of negligence in Donogue v Stevenson is usedincluding the circumstances in which the injury takes place, relevant for the determination of the breach of duty, for example, the rules, level of play, playing culture, age and experience of the participants.
In regards to our case it may well seem that the Buzz player owed a duty of care to the opponent not to injure her in the course of play. Moreover, that duty of care seems to have been breached by the act (elbowing) and the foreseeable harm was a result of the breach of that duty.
Furthermore, when considering the test in Caldwell it may well seem that elbowing is not “in accordance with the informal and interpretative norms adhered to by players and officials.” (playing culture of the sport). It can be said that elbowing is not accepted as being part of the basketball culture and rules of the game; hence the Jets player has a good chance of a successful negligence claim if it is proved that there was sufficient degree of carelessness on the part of the Jets player.
To continue, the doctrine of vicarious liability states that the defendant’s employer is liable for the tortuous actions of the defendant (employee), provided that the actions were carried out during the course of the employment. However, this doctrine is limited to professional players working under a contract with their club. Therefore, it can be argued that the players of the University of Lowland are not professional and are not employed under a contract, thus the doctrine is not applicable.
We will now consider whether there can be any criminal liability on the part of the Buzz player. As regards sports, an action to impose criminal liability can be taken under sections 18, 20 and 47 of the Offences Against the Person Act 1861.
The leading case of R v Barnes provided some clarification as to when an action under criminal law can be taken in regards to sports injuries. Lord Woolf stated that in deciding whether conduct is criminal, it must be taken into account that in highly competitive sports, conduct outside the rules of the game can be expected in the heat of the moment but it may not reach the threshold level required for it to be criminal. Lord Woolf also stated that the threshold level is an objective one. “The type of the sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury, the state of mind of the defendant are all likely to be relevant in determining whether the defendant’s actions go beyond the threshold.”
The Court Of Appeal then stated that conduct outside the rules of the game could, in certain circumstances, be consented to. Hence, we now have the concept of ‘Playing Culture’ firmly expressed in law. However, the defence of consent is not expressly defined as how is to be used in sport.
To continue, the facts of our case indicate thatit would be most appropriate to consider section 47 of the Act as it can “cover a wide range of injuries from serious bruising to minor fractures and in addition the requirement that the harm be only occasioned and not intended or foreseen can make it relatively easy for a participant to commit this offence.”
Furthermore, the case of R v Davies which has similar facts to our case was dealt with under this section. In this case two football players collided and a free kick was given. As the two players involved were taking positions for the free kick the defendant approached the other player and struck him in the face. After the match, it was found that the claimant suffered a fractured cheekbone. The court held that this was a very serious offence as there was no provocation on the part of the claimant and the defendant deliberately assaulted him on the field. The fractured cheekbone was considered as serious injury and the defendant was sentenced to six months imprisonment.
In considering the above, it can be argued that the court may find that the Buzz player’s act met the threshold level of criminal liability under the given circumstances. An indication to this is the similar case of Davies where the injury inflicted was the same and along with the relative ease that a sport participant can commit the s.47 offence it may well seem that the player is criminally liable. Nevertheless, this is only a speculation as there is not enough detail of the circumstances under which the injury was inflicted. “Although the reported cases deal mainly with fights on the pitch, in a situation where consent did not apply, there is no reason why s.47 could not be charged for an on-the-ball challenge.” The determining factors that Lord Woolf provided in Barnes must be taken into account before arriving to a safe decision.
What is to be next considered is whether any party can be liable for the medical condition of Julie and the other Buzz players under the law of tort. The coach of Lowland university ignored the high temperature of 38 degrees Celsius. There have been many cases where sportspersons felt discomfort and even died from heart failure when training or playing in hot weather conditions, such as the Korey Stringer’s case.
Moreover, the Sports Medicine Australia issued the Preventing Heat Illness in Sport to “prevent injury, and possible death, from heat illness in sport and activity by assisting officials, coaches and participants to recognise and manage potentially dangerous heat situations.” However, there is no case law which imposes liability on governing bodies or supervisors or coaches for failing to follow these guidelines when players suffer from heat conditions.
The case of Watson v British Boxing Board of Control (BBBC) imposed liability on the governing body of BBBC because they have failed to provide the necessary medical care at the ringside during a boxing fight and as a result of the delay to provide the appropriate medical care the claimant was partially physically and mentally disabled.
In considering our case, it can be argued that the relevant governing body can be held liable for not providing the necessary medical care to Julie at the open arena and as a result of the delay to provide medical assistance (until she was taken to hospital) she has been in a coma, while this could have been avoided with immediate medical assistance.
To conclude, “actions in negligence provide the best legal means of securing compensation for injuries caused when playing sport.” However, there are many difficulties in a successful claim under tort as there are contrasting opinions on whether the act or challenge causing the injury was negligent, or in case of a trespass proving the intention on an on-the-ball challenge. Moreover, even though courts do not encourage such sports claims under the criminal context, there is an increasing number of claimants which resort to criminal law. The number of injuries and thus claims under criminal law can be significantly reduced if the governing bodies “take a more pro-active stance towards participator violence.”
BIBLIOGRAPHY (Question 1)
- Gardiner S et al Sports Law (3rd edn. Cavendish Publishing Ltd, Oxon 2007)
- Offences Against the Person Act 1861
ARTICLES AND JOURNALS
- Adam Pendlebury, ‘Perceptions of Playing Culture in Sport: The Problem of Diverse Opinion in the Light of Barnes’ (n.d)
- Lucy Castaldo on Negligence in Sports
- Mark James, ‘Liability for Professional Athletes’ Injuries: a comparative analysis of where the risk lies.’  1 Web JCLI
- Williams G, ‘Consent and public policy’  Crim LR 74.
- James Alder, ‘All-Pro Korey Stringer Dies-Heat Stroke Claims Viking Lineman’ (about.com football, 2001)
- Sports Medicine Australia, ‘Preventing Heat Illness’ (Sports Medicine Australia website n.d )
1) Caldwell v Maguire and Fitzgerald  EWCA Civ 1054
2) Condon v Basi  1 WLR 866
3) Donoghue v Stevenson  AC 562
4) Elliot v Saunders and Liverpool FC (1994) unreported (HC)
5) Letang v Cooper  1 QB 232
6) R v Barnes EWCA Crim 3246
7) R v Davies  Crim LR 70
8) Watson v British Boxing Board of Control (BBBC)  QB 1134
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