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Luka Krsljanin, instructed by Matthew Harpin of Browne Jacobson, acted for the successful appellant (Fulham FC) in this significant appeal concerning the circumstances in which the Court will find civil liability for a serious injury sustained in the course of a professional football match. The judgment is of importance for all sports law practitioners, given the anticipated rise in claims brought by injured sports people in respect of alleged career-ending injuries.
The claim, brought by Mr
Jones, concerned a tackle that occurred in the second half of a competitive
football match played between the u18s teams of Swansea FC (Mr Jones’s team)
and Fulham FC. In the course of the match, Mr Jones was tackled by a Fulham
player, Mr Jayden Harris. The tackle – which was caught on video - was
described as follows by the Appeal Judge (Mr Justice Lane):
“Shortly before the tackle, Mr Jones had possession of the ball. He had started to run into Fulham’s half of the pitch, towards its goal. Mr Jones was running close to the touch line. Mr Harris chased after Mr Jones. He came more or less parallel to him and made his tackle from the side. The experts agree that Mr Harris’s tackle was not from behind. Mr Harris led with his right foot and made contact first with the ball, stopping it. Mr Harris’s right foot came into contact with Mr Jones, as did Mr Harris’s left foot.”
The tackle was witnessed by an FA-accredited referee, who did not call for a foul or issue a booking against Mr Harris.
Mr Jones alleged that the tackle caused a serious ankle injury, which brought to an end his professional footballing career. He issued proceedings against Fulham asserting that Mr Harris had committed an assault and/or a negligent tackle, for which Fulham (as Mr Harris’s employer) were liable.
A trial on the issue of liability was heard in August 2021. Having heard live evidence from the players involved in the challenge, a member of Fulham’s coaching staff, and two eminent refereeing experts, the first instance judge held that Mr Harris had no wilful or malicious intent to injure Mr Jones when he made the challenge and accordingly dismissed the claim in assault. However, the first instance judge found that the tackle was a negligent one.
In so doing, the first instance judge held as follows, referring to the definition of “serious foul play” within the FA’s Rules for Association Football:
“The circumstances in which negligence is judged include the fact that association football is a contact game. It is apparent from what Tuckey LJ said at paragraph 23 in Caldwell v Maguire (and Lord Woolf CJ agreed) that the threshold of liability in negligence high. Whilst a claimant does not have to establish recklessness, there is "no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required ." Breach of the rules is not itself determinative of liability and neither is a referee’s decision one way or the other but actual serious foul play "that endangers the safety of an opponent or uses excessive force or brutality (see p.116) would very likely amount to negligence.” (paragraph 56 of the first instance judgment)
The first instance judge concluded that it “does not matter that Harris did not intend to injure the claimant or that in a general sense it can be said the tackle was made in a fast moving heat of the moment context… [It was] a serious error of judgment to make the tackle in the way he did, going beyond the kind of mis-judgments, mis-timings and relatively minor or momentary lack of care which all players have to accept as an inherent risk of the game not amounting to negligence”. (paragraph 66)
Finally, the first instance judge remarked:
“Harris could aim for the ball and I accept he did, but he could not be sure what else he might contact or do or, being a large man, with what force he might do it. He was aiming at a ball which was being played forward by the other running player and he was intending to get between that player’s feet and legs and the ball.” (paragraph 66)
Fulham appealed the first instance judgment on four grounds. Its overarching case was that the first instance judge had wrongly, and impermissibly, lowered the legal standard for a finding of civil liability in the sports context. In particular, the judge had wrongly conflated a breach of the rules of the game with the standard for civil liability. Fulham also argued that the first instance judge had failed to have regard to (i) the context of the fast-moving, competitive football match, (ii) the mens rea requirement that a claimant must show something akin to recklessness in order for civil liability to arise, and (iii) the absence of any sanction by the referee.
The appeal judge (Mr Justice Lane) accepted Fulham’s appeal on all four grounds and, in the process, gave valuable judicial guidance on personal injury claims in the sporting context. Paragraphs 13-32 of the judgment contain a comprehensive and up-to-date overview of the case law in this area, and will make for a useful reference point for practitioners.
The following pieces of guidance will be of particular importance to sports practitioners:
1. The standard of civil liability is set at a materially higher level than a mere breach of the rules of the game. It is clear from earlier authorities that liability will be established only in exceptional cases and, per the leading case of Caldwell v Maguire & Fitzgerald  PIQR P6, Lane J held that, in directing himself that “actual serious foul play ‘that endangers the safety of an opponent or uses excessive force or brutality’ [a defined term in the rules of the game] would very likely amount to negligence” the first instance judge had made a material error. At paragraphs 63-64, Lane J held:
“63. …I agree with Mr Krsljanin’s overarching submission that the Rules of the Game of Association Football have not been drafted with civil liability in mind. Their drafters were simply not concerned with whether, at any point in the hierarchy of sanctions, there is a correlation with the laws of negligence. Although shorthand expressions such as “football crimes” and the “unwritten code of playing culture” must be handled with care, the fact that such crimes or violations of the unwritten code are (or should be) the subject of sending-off of the player concerned does not mean that any sending-off is, without more, very likely to amount to actionable negligence.
64. The real problem, therefore, with the
self-direction in paragraph 56 of the recorder’s judgment is that by closely
aligning serious foul play in the Laws of the Game with actionable negligence,
he wrongly reduced the ambit of the inquiry required in order to answer the
question of whether, in all the circumstances, Mr Harris's tackle was not only
a breach of the Rules of Game but negligent.”
2. It is absolutely vital – and legally necessary – for a judge considering a sports injury claim to have regard to the context and realities of a fast-moving, competitive game of sports. The court must not consider the question in a vacuum or with the benefit of hindsight: see paragraphs 17-24 which contain a useful summary of the earlier case law in this area. As Lane J observed at paragraphs 66-67 of his judgment:
65. The result of [the first instance judge’s] error can most clearly be seen in the following passage from the concluding paragraph 66 of the judgment:-
“I consider what Harris did was a lunge within the meaning of the definition of serious foul play in paragraph 18 above and in any event, it endangered the claimant’s safety. It does not matter that Harris did not intend to injure the claimant or that in a general sense, it can be said the tackle was made in a fast moving heat of the moment context”.
66. On the contrary,
as Mr Krsljanin submitted, it matters very much whether or not the tackle was
made in such a context.”
3. The first instance judge had failed to discharge his duty to give reasons by failing to give an explanation as to why he accepted the opinion evidence of one expert (the Claimant’s) but rejected the opinion evidence of the other (Fulham’s). In so doing, Lane J provided a vital reminder of the principle that a judge must be guided by the expert evidence towards their conclusion and cannot simply reach an independent conclusion, without regard to the expert evidence, and by necessity reject the view of the expert who has reached a view that differs from their own. See paragraph 76:
seems to me that the reason why the recorder fell into error in his treatment
of the expert evidence of Mr Cumming was that, despite what he said at
paragraph 59 of the judgment about the evidence of experts being able to see
and interpret things that the recorder could not, and that what the recorder
provisionally thought about the video might be overweighed by other evidence
and considerations, the following paragraphs in the judgment simply show the
recorder forming his own view about the video evidence; and concluding that
because his view was contrary to the view of Mr Cumming, Mr Cumming’s evidence
fell to be rejected. In so far as that was the reason, it was a legally flawed
4. The first instance judge had also failed to apply the proper test for mens rea. The first instance judge had found liability on the basis that, when he committed to the tackle, Mr Harris (Fulham’s player) “could not be sure” what he might contact or whether he might harm Mr Jones. That was, as Lane J concluded, not enough:
“[The first instance judgment, at paragraph 65] contains the sentence: “Harris could aim for the ball and I accept he did, but he could not be sure what else he might contact or do, or, being a large man, with what force he might do it.” Mr Krsljanin submitted that this sentence imposes an extraordinarily onerous burden on a football player. If allowed to stand, it would mean that a player could never make a tackle in football match where they “could not be sure” that they would not make contact with another player.
courts must be cautious not to pick apart judgments of first-instance decision
makers, so as to take a word or phrase out of context. Even applying that
degree of caution, however, I am satisfied that paragraph 65 contains a
material error. It purports to set a standard for reckless or quasi-reckless
behaviour in the context of professional football, which is far below what is
needed to establish such liability.”
5. Finally, Lane J emphasised that, as a matter of law, the court must give some consideration to the reactions (or lack of reactions) of the referee adjudicating the football match in the heat of the moment. The first instance judge had expressly refused to take into account the referee’s decision not to call for a foul or issue a booking, remarking that this was a “puzzle” and that the referee had plainly made an error and ought to have called for a foul. Lane J held at paragraph 89:
“I find that the recorder erred in law in affording no weight at all to the fact that the referee did not award a foul. He merely found that “it was a foul which the referee should have penalised. That he did not is a puzzle but not a sufficient one to negative my views about what actually happened”. The recorder accordingly failed to have any regard to the important policy consideration, in cases of this kind, which requires the court to pay a proper regard to the decisions of the officials tasked with administering the Rules of the Game. The fact that such officials have decided to take no action, or relatively minor action, is, of course, not determinative: see Tylicki. It is, however, a matter to be engaged with by the court, in determining whether actionable negligence has occurred.”
The full judgment may be found here.
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