Sport in the firing line

Litigation in sport is now commonplace, with competitors, referees, coaches, schools, organisers and promoters all in the firing line. Even sports governing bodies are not immune, as the boxing case of Watson v British Boxing Board of Control (BBBC) [1999] and, more recently, the motor racing case of Wattleworth v Goodwood Roadracing & Others [2004] have confirmed.

With this developing trend it is imperative that governing bodies have the correct risk management provisions in place if they are successfully to defend the growing number of claims made against them.

Mr Justice Kennedy's decision in Watson surprised some because it seemed somewhat perverse that a boxer could sue for being injured in a bout, given the nature of the sport. The decision was, however, based upon the BBBC's failure to properly safeguard the participants against what were deemed to be foreseeable risks. One of the board's objectives was to promote safety standards within boxing. It had owed Watson a duty of care, which it had breached.

In Wattleworth, Mr Wattleworth's widow claimed against Goodwood Motor Racing Circuit, the Royal Automobile Club Motor Sports Association (MSA) and the Federation Internationale de L'Automobile (FIA) following her husband's tragic death at Goodwood in 1998 after his motor car hit a tyre-fronted bank.

The action centred on the alleged negligent design of the tyre structure fronting the bank. It was accepted that Goodwood owed Mr Wattleworth a duty of care as occupier but it was submitted that the duty had been discharged by following the advice and recommendations of the MSA and the FIA with regard to track safety matters.

The court agreed. Goodwood had treated the safety of the track as being of paramount importance. The duty under the Occupiers Liability Act is to take reasonable care but no more than that. Goodwood relied upon the advice of the MSA and the FIA as experts, and followed their recommendations on safety measures.

Following Watson, the court found a duty of care on the part of the MSA even though the event did not require an MSA track licence or permit.

The MSA had adopted a supervisory role with regard to the circuit and safety barriers at Goodwood and gone beyond the limited role of licensing or authorising MSA events. Given their expertise the court considered it entirely understandable and appropriate that Goodwood should rely on that advice as applicable to non-MSA events. On the evidence, however, the court found the MSA had discharged that duty of care. The tyre bank was a reasonable choice and a suitable design.

With regard to the FIA, the court held that it did not owe Mr Wattleworth a duty of care, even though it had specifically advised in relation to the tyre bank. The FIA's involvement in its design and installation was too minimal to amount to an assumption of responsibility towards the users of the circuit at non-international events. Their involvement was properly restricted to international events. As the national sporting authority, the MSA was responsible for track safety at national events, not the FIA.

This echoed the finding in the Australian case of Agar v Hyde [2001].

There, two claimants sought to recover damages in negligence against members of the International Rugby Football Board for breach of an alleged duty of care. Both individuals had suffered spinal injuries from scrummaging.

The case initially succeeded at Court of Appeal level in New South Wales.

The High Court of Australia reversed that decision. It would appear they did so on the basis that the relationship between the individual claimants and the members of the board was too remote. The court was not prepared to find that as a result of their rule-making function, the board owed a duty of care to an indefinite but huge body of people who played rugby football around the world and over whose activities they had no control.

The decisions in Wattleworth and Agar may give comfort to the international governing body but it is clear that national governing bodies are in the firing line. Claimants will look to those with the deepest pocket. The fact that the BBBC was uninsured did not impress Kennedy. This is a message that sports advisers must deliver to their clients. Most sports governing bodies have limited finances. Therefore, it is imperative that they are properly advised on risk management. That their coaches have proper training and qualifications. That their referees are up to speed with the rules and that they are aware of the need to ensure, where reasonable and appropriate, the safety of the competitors. This may appear an onerous shopping list but much of what is required is basic common sense in approaching sport.