Sports injuries present a challenge for personal injury practitioners. The difficulties in determining liability were recently examined by Mr Justice Lane in the High Court judgment Fulham Football Club vs. Jones  EWHC 1108 (QB). This article sets out the facts of the case, the approaches taken by the Recorder and the High Court and finally provides concluding thoughts on the implications of this judgment.
on the 10thth December 2016 saw a football match between Fulham Football Club’s under-18 teams and Swansea City Football Club. Toward the end of the first half of the game, Mr. Harris attacked Mr. Jones from his side. Mr. Jones suffered a serious injury to his right ankle that ended his professional soccer career. Prior to the issuance of the claim, no complaint had been filed in relation to the device. Furthermore, there had been no investigation and no disciplinary measures were taken.
At the hearing, both parties commissioned experts. Namely Mr. Hackett for the plaintiff and Mr. Cumming for the defendant.
Judgment of the clerk
Recorder Craven highlighted the following rules of football from Mr Hackett’s expert report:
- Excessive use of force occurs when a player exceeds the required use of force and endangers the safety of an opponent.
- A player, a substitute or a substituted player who commits [serious foul play] will be sent.
In paragraph 56 of his judgment he held that breach of the rules does not give rise to liability, but that actual serious foul play involving an opponent’s safety or involving excessive force or brutality would very likely constitute negligence. He noted that Mr. Harris had attacked the Claimant by getting off the ground so that he could not “Control over his flight other than being able to move to a degree where his legs went. . This was a reckless maneuver of excessive force that he should have known would bring Mr. Jones down.
This was a serious error of judgment. He noted that the referee did not penalize Mr. Harris for a foul, but noted that it did not adversely affect his views of what actually happened. With regard to the expert report, the clerk stated that he accepted the claimant’s expert report and rejected the defendant’s report.
judgment of the Supreme Court
Mr Justice Lane allowed the appeal on all four grounds put forward by the defendant.
Reason 1: The inherent direction of the recorder
The complainant submitted that it was wrong for the clerk himself to state that actual serious foul play “very likely amounted to negligence”. The applicant’s lawyer suggested that a two-stage analysis was required. First, whether the defendant broke the rules of the game. Second, whether there was negligence.
It was agreed that the Rules of Football were not designed with civil liability in mind. They were not concerned with whether the sanctions correlated with the negligence law. The fact that such violations are the subject of a warning does not mean that there is a high probability that a warning will result in negligence.
Mr. Justice Lane noted that Ground 1 was identified. He did not accept that a two-tiered test was required. However, he accepted that the clerk, in paragraph 56 of his judgment, had closely reconciled serious foul play with criminal negligence. He erroneously narrowed the scope of the investigation to answer the question of whether Mr. Harris’ attack was negligent. Given this realization, the clerk had suggested that it doesn’t matter if Mr. Harris executes the tackle in a fast-moving “heat of the moment” context. On the contrary, this was an important matter in determining whether Mr. Harris had really acted negligently.
Reason 2: Lack of justification
The complainant complained that the recorder had not given any Reasons why he flatly rejected the testimony of the defendant’s expert. He merely concluded that he rejected the defendant’s expert but accepted the plaintiff’s expert. The Respondent considered that the reasons for the refusal were evident from reading the judgment as a whole. The recorder had accepted that the Claimant’s expert was correct that Mr. Harris had jumped, which even Mr. Harris accepted and would be dangerous.
Mr Justice Lane stated that the fact that Mr Harris jumped in the air could not be a reason to reject Mr Cumming’s expert opinion. Even if there was such a reason, it had to be expressed in the judgement. Mr. Harris did not admit that he was negligent. In addition, Mr Justice Lane noted that the clerk had merely formed his own opinion of the video evidence and concluded that this was contrary to Mr Cumming’s view. This was an inappropriate treatment of the Defendants’ expert report.
Reason 3: Incomprehension of the realities of professional football
The complainant alleged that the clerk imposed a council of perfection on Mr Harris. He suggested that it doesn’t matter if the device is in a “fast-paced heat of the moment context“. In addition, the clerk suggested that in preparing the tackle, Mr. Harris “couldn’t be sure what to contact or do.” Mr Justice Lane found that the recorder’s analysis set a standard of reckless behavior well below what was needed to establish liability.
Reason 4: Failure to consider relevant evidence
The complainant alleged that the clerk failed to take relevant evidence into account. Namely (1) the fact that the referee had not committed a foul nor imposed a sanction, and (2) there was no adverse reaction from spectators or other players.
Mr Justice Lane found that he had made an error of law in not taking the arbitrator’s opinion into account. This was an important political consideration in determining whether Mr. Harris’ attack was negligent. It wasn’t determinative, but it was part of the evidence landscape that the writer had to traverse. However, the note-taker made no mistake by ignoring the lack of negative reactions from other players and spectators. Both experts agreed that it was normal not to expect any negative reactions from any viewer.
Accordingly, Mr Justice Lane ruled that the clerk’s judgment should be set aside. He rejected the applicant’s claim that a decision should be made in her favour.
There are two points that practitioners should draw upon when reading this judgment. First, a mere violation of sporting rules does not equate to negligence. This is difficult, especially since the language of sports rules is very similar to the language used in assessing civil liability. Actually in Caldwell versus Maguire and Fitzgerald  EWCA Civ 1054, the Court of Appeals strongly affirmed the difference between “Response of the regulator and response of the courts in the form of a liability finding”.
Second, the threshold for establishing civil liability will be high. In the unreported judgment of Pitcher versus Huddersfield Town Football (not reported, Queen’s Bench Division, 17th July 2021) Ms Justice Hallett describes successful cases as “football crimes”. Actually in Tylicki vs. Gibbons  EWHC 3470 (QB), HHJ Walden-Smith found that the defendant acted negligently because the safety of others was “negligently disregarded”. As Alistair McHenry notes football and law (De Marco QC, 2018), such claims will only succeed in cases that are clearly unacceptable and beyond the game culture of the sport.