Examining the history of damages awarded for negligence on the football pitch
A few weeks ago I wrote a post on the highest award for personal injury in sport which occurred in the case of Benjamin Collett v (1) Gary Smith (2) Middlesbrough Football and Athletics Company (1986) Ltd: QBD , in which the claimant was awarded more than £4.3million by the High Court. I thought it might be instructive to look into the history of recovery of damages by sportsmen in sport as it was not always easy for them to do so.
Even today you will often hear some commentators or ex-player pundits, who should know better, argue that the laws of the land should end at the touchline because players in a competitive sport must be deemed to consent to a risk of injury by simply being on the pitch. I have often heard it stated that an over regulation of sport is too great a risk to football and will result in a dumbing down or dilution of the game, that it will become a non-contact sport like basketball. However, those that argue this seem to give no consideration to the importance of protecting players from serious injury. Of course there must be a balance in the game against the reasonableness of finding another player liable for a horrendous injury.
We can trace the roots of this area of law back more than a century ago to the case of R v Bradshaw  Cox CC, 83. Herbert Docherty dies as a result of an injury he sustained whilst playing football in February 1878 and subsequently led to the manslaughter indictment of his sporting opponent, Mr Bradshaw. Evidence was given by one of the two match officials in charge of the game that no unfair play occurred and much to his relief, the Defendant was acquitted at trial. The judge in the case, Lord Justice Bramwell, gave the somewhat classic description of reckless and/or deliberate foul play in sport and it is a description that has stood the test of time and learnt by law students across Britain:
‘If a man is playing according to the rules and practice of the game and not going beyond it, it may be reasonable to infer that he is not actuated by any malicious motive or intention, and that he is not acting in a manner which he knows will be likely to be productive of death or injury. But, independent of the rules, if the prisoner intended to cause serious hurt to the deceased, if if he knew that in charging as he did, he might produce serious injury and was indifferent and reckless as to whether he would produce serious injury or not, then the act would be unlawful. In either case he would be guilty of a criminal act and you must find him guilty, if you are of a contrary opinion you will acquit him.’
Another case occurred two decades later with very similar directions being given to the jury in the matter of R v Moore  14 TLR, 229. In this case, evidence was heard that Moore, the Defendant, jumped with his knees into the back of Mr John Briggs, and it was this which caused him to be thrown violently against the knee of the goalkeeper. The resulting trauma caused an internal rupture and led to his death a few days later. In this case, the jury returned a verdict of guilty. Lord Justice Bramwell summed up the case to the jury which led to the guilty verdict using these words:
‘No-one has the right to use force which was likely to injure another, and if he did use such force and death resulted, the crime of manslaughter had been committed.’
Almost a century later and both of these cases were used as precedents in the matter of R v Venna  3 All ER, 788. In this case the Court of Appeal dismissed appeals against Henson George Venna’s convictions for assault occasioning actual bodily harm and public order offenses. Lord Justice James included the following statement in his judgment: ‘R v Bradshaw can be read as supporting the view that unlawful physical force applied recklessly constitutes a criminal assault’.
It was the landmark case of Condon v Basi  2 All ER 453 also heard in the Court of Appeal that ultimately extended these decisions to include negligence in sport. The claimant, James Condon, suffered a broken leg from a poor tackle by the defendant, Burdaver Basi, in a local Sunday league football match in March 1984. The claimant sued for negligence and was awarded damages of £4,900 on the basis of a breach of the duty of care in negligence owed by one player to another, much as one driver has to another while on the road. The Judge concluded that that:
‘The tackle was made in a reckless and dangerous manner not with malicious intent towards the plaintiff but in an excitable manner without thought of the consequences…It is not for me in this court to attempt to define exhaustively the duty of care between players in a football game. Nor in my judgment is there any need because here was such an obvious breach of the Defendants duty of care towards the Plaintiff. He was clearly guilty, as I find the facts, of serious and dangerous foul play which showed a reckless disregard of the Plaintiff’s safety and which fell fare below the standards which might reasonably be expected in anyone pursuing the game’
On appeal the decision was upheld by the then Master of the Rolls, Judge Donaldson, who expressed surprise at the time that this appeared to be the first case in which the standard of care governing conduct of players in competitive sport had been raised in this country and agreed with the conclusion of the judge at first instance.
Moving on and in May 1994 saw the first High Court case in England by which one Premier Division footballer sued another for causing serious injury on the field of play. In Elliot v Saunders and Liverpool FC (1994) (unreported) (QBD) NLJ 144, the Chelsea player and claimant, Paul Elliot, sued the Liverpool player Dean Saunders (and by extension his employers Liverpool FC who would be vicariously liable) for causing a career ending injury to his right knee.
In his case the Claimant had to prove he was owed a duty of care which Saunders had breached, and thus causing him foreseeable damage. The High Court accepted that he was owed a duty but that he needed to prove that Saunders had been guilty of reckless play and if so, thereby failed to exercise a reasonable standard of care in his tackle. Whilst the video evidence was considered, the judge ultimately preferred the evaluation of the match officials who gave evidence that they believed Saunders was attempting to play the ball. The Judge decided that Saunders had not been guilty of dangerous or reckless play and had therefore not breached the duty of care he owed to Elliot. As a result of this, Liverpool FC were not held vicariously liable for the injury that had occurred to the claimant by their employee.
The Eliot case was soon followed by that of O’Neil v Fashanu (1994) as well as Knight v Bennett and Chester City FC (1997). Each case concerned injuries suffered in similar circumstances to that of Elliot but unlike that case both cases settled out of court by the parties. A £70,000 settlement was negotiated in the O’Neil while Knight was resolved by an undisclosed and confidential sum of money.
It is important to note a certain legal principle which should be considered further. Moreover, it also allows me to use Latin which is something that I have not been able to do in some time. In recent years the courts in England have ruled in many cases that Latin should be avoided as much as possible and that everyday language that the average person might understand should be used instead. This is of course a common sense approach by the judiciary but it does take some of the glamour away from courtroom proceedings. Anyway, I digress; Volenti non fit injuria. Volenti means that ‘no wrong is done who consents’. Therefore if you consent to the possibility of injury and you are injured then you cannot claim you have been wronged. This is a complete defence to a claim for negligence.
For an agreement to be volenti the following must be adhered to. The agreement must be; (i) voluntary, and the (ii) claimant must agree either expressly or impliedly to accept the legal risk of injury, and furthermore, (iii) the Claimant must subjectively have full knowledge of the nature and extent of that risk.
McCord v Swansea City and Cornforth (1996) The Times, 19th Dec, saw the claimant, Brian McCord, sue Swansea City FC and its the Captain for an ‘over the ball’ tackle which subsequently left the claimant suffering quite horrendous lower leg injuries. The injuries were so severe that the claimant’s career in football was prematurely ended as a result of them. The judge in the case, Mr Justice Kennedy, acknowledged that players consent to a risk of injury when playing the game, but that this specific case the injury went beyond that to which the claimant could have given his implied consent by stepping on to the field of play. The judge decided to award McCord £250,000 in damages for the injury he sustained.
So we have seen that players can be financially compensated for injuries sustained on the field of play, but what about further punishments to the individuals who cause them. Money can compensated some things but surely those responsible should be hit harder than just what is in their pockets? Every football fan has witnessed, if not certainly joined in with, the condemnation of certain opposition players who are seen to perpetuate malicious challenges on their opponents. I have lost track of the number of times I have heard one fan mutter to another, “If I did what he just did in the street I’d be done for GBH!” Well, the question should be answered, can a player be charged for a criminal offence for a tackle on a football pitch?
As shown earlier, yes they can, and with varying degrees of success. But what about in the modern game? In March 2010, Mark Chapman, a Sunday League player was found guilty of GBH and was imprisoned for 6-months. The incident in question involved him sliding into a studs up challenge which shattered an opposition player’s leg in two places. Terry Johnson’s leg injury was so severe that it effectively ended his playing days and significantly compromised his job as an electrician. Chapman’s defence team tried to draw parallels with a Premiership game the previous Saturday in which Arsenal’s Aaron Ramsey had his leg badly broken by a tackle by Stoke City defender, Ryan Shawcross, and who was not facing criminal charges (perhaps to the dismay of many Arsenal fans out there who have still not forgiven him even if he is not “that sort of boy“).
However, Judge Robert Orme accused Chapman of ‘wanton violence’ and rejected any parallels with the Ramsey and Shawcross incident. Judge Orme said in his summing up: ‘This is a deliberate act, a premeditated act. A football match gives no one any excuse to carry out wanton violence.’ He added that what he branded a ‘quite crazy and mad challenge’ had to be considered a ‘very deliberate criminal act’.
Interestingly, Sky Sports pundit Chris Kamara, then a Swindon Town player, was convicted of GBH in 1988 after he caught Shrewsbury Town’s Jim Melrose with his elbow but he was only fined £1,200 for the incident. Furthermore, in 1995, former Scottish international Duncan Ferguson was jailed for three months for headbutting Raith Rovers’ John McStay while playing for Rangers. But the case involving Chapman was the first time that a player in modern times, at least, was sent to prison for a tackle. Although some might wonder how a few of Roy Keane’s tackles did not also end up getting him into a little more hot water than they actually did.
So what have we learnt? Footballers (as indeed all sportspersons) are aware that they may get injured on the field of play and by stepping over the white line they assume a degree of risk that they might well be injured, perhaps even horrendously so. But that does not mean that their opponents do not owe them a duty of care when they attempt to tackle them for the ball. Should they have acted recklessly or negligently in their endeavours and they injury another player they will have breached their duty of care to that individual and will be at least financially liable to their victim in the majority of cases.
Arguably though this would be the least of their worries, for if they act in an overly aggressive manner to get “stuck in” to the opposition then they may well find that the next time they kick a ball will be behind bars. And for those of you wondering, I am fairly confident that Vinnie Jones’ Mean Machine is not an accurate portrayal of what a footballer would go through when forfeiting his liberty to Her Majesty’s Prison Service.
Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.
Note: The basis for this blog post comes from an article called “Book him Ref!” written by Grant Evatt, a Senior solicitor in Blake Lapthorn Solicitor’s Personal Injury Team that I have expanded upon.