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Sporting chance? The current legal playing field.

View profile for Kim Daniells
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Sports injuries threaten to pose considerable difficulties in the years ahead, both for sports' governing bodies and personal injury practitioners.

Contact sports - such as rugby and boxing- which require at the very minimum some degree of assertive physical contact, have historically been the most challenging arenas in which to manage risk.

In 2021, a group of former rugby league players- including Bobbie Goulding, who had a successful career being capped 17 times for Great Britain - brought an action against the Rugby Football League for failure to protect them from risk of brain damage caused by concussions. A common injury amongst ex-sportsmen joining the lawsuit is early-onset dementia, characterised by memory loss, difficulty concentrating and mood changes.

The potential impact of repeated head injuries is now also being raised by former professional Rugby union players but increasing concern is being voiced by current players, who fear that the bruising encounters of today could result in profound disability in just a few years. The sport's governing body is addressing the issue by introducing rules that attempt to ensure players are properly assessed after suffering head injuries on the pitch - and penalising dangerous play - but it remains to be seen whether these steps will be sufficient.

Whilst injuries in rugby have historically been more prevalent (or, perhaps, just more documented), recent focus has shifted somewhat to football.

The High Court has recently re-examined the difficulties of establishing liability for sports-related injuries in the case of Fulham Football Club v Jones [2022]. The case concerns a nasty tackle from a Fulham Football Club under-18s player (Mr Harris), which ended the career of his opponent (Mr Jones). In the first instance, it was decided that the tackle was negligent, and that Fulham Football Club would be liable for the injuries caused to Mr Jones. The reasoning was that it was a “serious error of judgement”, which amounted to more than a small lapse of good judgement that is an inherent risk in all contact sports.

At appeal, Mr Justice Lane accepted all four of Fulham’s grounds of appeal, rejecting the decision of the lower court. Whilst he agreed with the first instance judgement that Rules of the Game of Association Football have not been drafted with civil liability in mind, he took issue with the conflating ‘actual serious foul play’ to (almost always) being negligent. He also highlighted that when considering personal injury litigation, the context is important - the question of liability must be taken in a vacuum. He also fundamentally disagreed with the Mr Krsljanin’s mens rea application, considering the application to be improper. If applying the original judgement, Mr Justice Lane muses, then tackles could never be made in football as they “could not be sure” that contact wouldn’t be made with another player.

Whilst it is substantially easier to establish causation when the questionable play can be pinpointed, Mr Justice Lane’s judgment reinforces the difficulties that are faced by sportspersons attempting to claim for personal injury during play. Certainly, the judgment has further cemented the concept that establishing a civil liability in sports should be a high hurdle to jump.

Despite the obvious risks in some sporting contests, and the suggestion that historic standards in some sports have failed to safeguard the welfare of players, cases such as Fulham Football Club still highlight the need to protect the integrity of the game. 

At a time when professional sport appears to ensure that individuals are capable of superhuman athleticism, it is perhaps important that we all remember the vulnerability of the bodies that are pushed to the limit of endurance for our entertainment.