A sporting chance
21 June 2004
The last decade has seen a steep increase in awareness that loss and injuries sustained as a consequence of sporting activities and the associated medical treatment might constitute the basis of a successful legal action. The result has been a significant increase in personal injury (PI) cases concerning sportsmen and women. There has also been a marked increase in clinical negligence and analogous claims brought by sports people. This change has had an impact on the availability and cost of relevant employers’ liability, public liability and professional indemnity insurance policies.
Many professional sports are now big businesses. Inevitably, the growth in litigation has most affected professional football. With a player’s remuneration package in the Premier League often exceeding £500,000 per year, a claim in respect of even a non career-ending injury might be very significant in monetary terms.
Even a moderate physical injury, which in a non-professional sports context would carry modest damages potential, can form the basis of a substantial claim where the injured party is a professional sportsperson. For this reason alone, there has been a large growth in sports injury claims. There is no reason to think that this growth will cease or even slow down.
At a non-professional level, the increased availability of legal expenses insurance, public liability insurance and alternative means of funding litigation, such as conditional fee agreements, together with the development of ‘compensation awareness’, have coincided to cause an increase in the number of claims, both large and small.
These range from those arising from a broken leg in a Sunday football game to those involving catastrophic head and spinal injuries running into millions of pounds.
In player-on-player cases stemming from professional sport, issues of vicarious liability may arise in relation to deliberate incidents or incidents off the field of play. Apart from exceptional cases where a player states publicly that they intended to injure the claimant or, possibly, where there is compelling evidence that the incident was part of a personal vendetta, a professional club will be held liable for the actions of its players on the field of play, whether deliberate or negligent in both competitive matches and training sessions. More interesting questions might arise if PI to a third party arises from the actions of a player off the field, but while representing the club during, say, a lengthy competition.
In amateur player and match official cases, different issues of vicarious liability may arise. Resolution of such issues will often depend on arguments of agency. Do generous expenses payments establish the relationship necessary for the doctrine to apply? Are the members of a wealthy amateur club entitled to escape liability for the actions of an aggressive or clumsy player, leaving them to pay? Should an insured governing body that appoints a match official, without whose presence the match could not take place, be liable for their negligent actions? Many would say that an amateur player or referee should enjoy the same legal support from their club or appointing body as their professional counterpart. Indeed, it is hard to think of a moral argument against such a view. In practice, such support can be achieved only by unpredictable legal arguments about agency.
At an evidential level, it is uncertain what weight a court should attach to a defendant player’s past poor disciplinary record. The cases to date have proceeded on the basis that such evidence is admissible, although the authors are not aware of any concluded case where the true relevance and weight of such evidence has been authoritatively analysed. At what stage does the prejudice caused by a poor record outweigh the probative value of such information when considering the actions of the player at the time of the relevant accident? Should the admissibility and/or weight of a poor disciplinary record be limited to incidents factually similar to the relevant accident?
Current experience indicates that courts will also admit evidence as to professional disciplinary proceedings, but are reluctant, for case management reasons, to admit general factual or witness evidence concerning incidents appearing on the record. However, the position will depend on the facts of each case and the probative or prejudicial effect of the earlier incident.
Cases involving governing or regulatory bodies invariably include additional claims against other parties, such as occupiers, organisers, promoters and certifying bodies. In some instances, such as in Agar v Hyde , there will be a legal issue as to whether the governing body owed the claimant an individual duty of care and, if so, the nature and standard of that duty. The nature of the duty on a governing body will almost invariably differ from the duty on parties more directly involved in the relevant accident. In cases where liability is admitted or established against a number of parties, there will remain difficult questions concerning contribution and, potentially, indemnity.
Actions brought in respect of treatment or advice provided by medical practitioners, such as physiotherapists, club doctors and independent treating consultants, are increasingly prevalent. Many standard professional club contracts, including Premier and Football League contracts, oblige players of all ages to submit to examination and treatment only by the club’s medical staff and specialist consultants. Some clubs have the resources to provide well-qualified medical staff and high-quality treatment. Others have neither the resources nor the manpower to provide such care. It is only relatively recently that Premier League clubs appointed chartered physiotherapists as a matter of course. In some instances, medical staff might find themselves obliged to concentrate their efforts on the most valuable players at the expense of other, in particular young, players. In other instances, there may be a clash between medical staff and management and, on occasions, the player, as to whether the player is fit and ready to play. Some players are, intentionally or inadvertently, unreliable sources of information for medical staff. In several instances, the standard of record keeping by employed medical practitioners has been shown to be below the level expected in private practice. In addition, many professional sports clubs have a history of rapid staff turnover that can inhibit full investigation into allegations made.
When assessing damages in sports injury litigation, in appropriate cases the courts will admit expert evidence on career prospects and will, in many instances, assess the claim by applying loss of chance principles to claims for loss of earnings.
Professional sportsmen have short careers and their careers are notoriously volatile. Unless and until a player is established at the highest level, it is particularly difficult to predict a notional career absent of the relevant accident or treatment. Players might succeed and fail at different stages of their careers. They might sustain unrelated injuries or loss of form. They might fall out of favour with club management. Nonetheless, it is clear that substantial awards will be made in appropriate cases. The recent settlement of £1.5m in favour of a former Manchester United player in Casper v Cardiff City  indicates this to be the case.
Richard Davies QC (is joint head of chambers at 39 Essex Street. He was assisted on this article by Jonathan Bellamy