The compensation ethos pervading the UK is now impacting on sport, threatening the future of some sporting and leisure activities. David Miles reports.

No aspect of life is safe from the current compensation culture, where increasing numbers of claims are being fuelled by the emergence of a dedicated personal injury industry.

Massive television and newspaper advertising campaigns bombard the public with the no win, no fee mantra, encouraging the philosophy that there is nothing to lose by making a claim. In fact, there are millions of losers, because insurers are forced to increase premiums to keep pace with the rise in personal injury claims.

Now compensation culture is pervading Britain's sporting life, with a dramatic increase in claims potentially threatening the future of some sporting and leisure activities.

If the trend continues and claimants are successful, then insurance premiums will rise to the point that the cost of providing sports could be prohibitive. This could result in sports and leisure operators pulling out of the market or massively increasing the cost of sports participation. It will almost certainly lead to restrictions on activities, with those deemed to be of the highest risk no longer able to run.

Yet it is often the risk factor that makes so many sports appealing to participants. People may accept a certain degree of risk, such as in cross-country horse trials where riders may be unseated and injured. That is simply one of the hazards of the sport. But the leisure centre operator or sports promoter clearly has a reasonable duty of care to the participant.

Judiciary will steer the game
The judiciary has a key role to play in the future of Britain's sports and leisure pastimes. Each case will, of course, turn on its own facts.

In the case of Caldwell v McGuire & Fitzgerald (2001), the incident in question occurred during

a National Hunt Race in September 1994. Fitzgerald and McGuire went into a tight bend, not realising there was another horse coming up on the inside. The horse on the inside brought down the horse and Caldwell sustained serious injuries in the fall.

Although Fitzgerald and McGuire were found guilty of careless riding by the race stewards and were suspended for three days, they were not held to be negligent.

The court decided that such injuries were inevitable in the cut and thrust of racing. It was held that jockeys should not be held liable for injuries sustained in the ordinary course of horse racing.

There have also been several cases involving golf. In the case of Pearson v Anthony Lighting (1998 Court of Appeal), the golfer was held liable when a ball bounced off a tree and struck another player on an adjacent fairway in the eye.

Sufficient foreseeability is needed to find a duty of care. In this case, the defendant was found liable given the difficulty of the shot, the fact that it could have gone wrong, the likelihood of deflection and the presence of the plaintiff.

It was held that there was sufficient foreseeability to find a duty of care and that duty had been breached.

In Pitcher v Huddersfield Town (July 2001), the claimant was a first division football player who suffered a serious knee injury after being tackled by another player in a professional match.

The claimant alleged the player was negligent, as his tackle occurred after the ball had been passed, it was high and it was made with the left and not the right leg.

The court agreed the tackle was clumsy and late and that the other player should have tackled with his right leg. Experts considered the challenge to be a standard late tackle, the sort that occurs when a player does not quite make it to the ball.

It was held that football matches were fast moving and errors of judgment possible. While a breach of the rules of the game might be a relevant factor, this did not in itself make the act a negligent one.

The court found the tackle was not negligent, but rather a misjudged attempt at winning the ball and thus the claimant's action failed.

The courts will take into account and make proper allowance for the speed and competitiveness of sporting activities.

A lapse of judgment or misjudged attempt to challenge for the ball in the heat of a competitive match will not necessarily be enough to allow a claimant to succeed in a negligence action.

An overview would suggest the courts are, contrary to popular belief, taking a reasonable and realistic view of claims being pursued by sports participants. If the courts are being robust, then claimants' solicitors will not be keen to pursue an action and lose, because "no win" does indeed mean "no fee".

Hopefully, we shall therefore see the speculative claims we've seen in the past no longer being pursued, particularly as, for the most part, legal aid is no longer available.

Now claimants will have to take out after the event insurance (ATE) or have access to before the event (BTE) insurance, which will cover the claim for costs from the successful defendant.

It can be expected that ATE cover will become more expensive the more speculative and chancier the claim. That in itself might deter frivolous actions.

  • David Miles is a senior partner at liability adjuster Gates Adjusting Partnership.

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