Sporting Chance

Roughly 160 people are killed a year in the UK taking part in sporting activities.
Half a million need hospital treatment, while a further four million cases needed some medical assistance.

The overall result is more than ten million working hours are wasted each year at a cost of more than £500m - plus the cost of treatment valued at a similar sum.

Anyone who has had the misfortune to visit his local accident and emergency department on a Saturday afternoon where there is standing room only, and not much chance of making it to the pub that evening, will not be surprised by these statistics.

With the constant media reports about our increasing compensation culture, the well-publicised emergence of no-win, no-fee cases and the public's interest in sport, insurers may be bracing themselves for a flood of claims, perhaps in the same way that defamation hit the headlines some years ago.

High profile, low incidence
While there has certainly been plenty of press coverage of recent high profile sports accidents - most notably Manchester United's Roy Keane and the comments made in his autobiography about "that tackle". There was also the El Khalej's tackle on Kieron Dyer in the last match of the season between Southampton and Newcastle, which put Dyer's position in the England World Cup squad under threat.

But the actual cases that get to court are surprisingly few.

So why have the courts not been clogged up with sports injury cases? At least part of the problem can be found with the difficulty in establishing liability. In the 1985 case of Condon v Basi, which involved two amateur footballers, it was held by the Court of Appeal that Basi was liable for Condon's broken leg because his sliding tackle constituted "serious foul play". It held that the tackle was made in a reckless and dangerous manner which resulted in him being sent off.

This implied that in order to establish liability the actions of the prospective defendant must be outside the rules of the game.

This case was followed by Gordon Watson v Kevin Grey and Huddersfield Town which was decided in 1998. This case held that a reasonable professional footballer would have known that the challenge which broke Gordon Watson's leg would have carried a "significant risk of serious injury".

This may not be a very eloquent sentence, but it appears to set out the test.

It is worth noting that the judge did not find that there was recklessness on the part of Kevin Grey, which has been suggested as the alternative test to be applied in sporting situations.

In my view the key question relates to safety, particularly in contact sports and sports which are inherently of a dangerous nature such as motor racing. Many of the rules in sport are set out to protect and minimise the risk of injury to participants and spectators.

If a sportsman breaks these rules - designed to promote safety - he must realise there is a significant risk of causing serious injury. But life is never quite as simple as that.

If he does so mistakenly or accidentally then liability will not attach.

From all angles
So, in each case you have to show that the defendant acted unreasonably in all the circumstances - and therein lies the rub.

Anyone who has listened to the sporting pundits on television knows the problem. Clearly, if the incident has been televised there is good evidence of what actually occurred, although an incident can look very different from one camera angle to another.

If we are talking about an amateur game or a professional game with no cameras, we have only eye-witness evidence to rely on. Couple that with the experts' differing views and you can readily appreciate the difficulties involved. A cynic would say that the more famous the "expert witness" the stronger your case is.

Just as you were beginning to think that these cases are difficult, there is an extra layer of uncertainty to add. Perhaps the most surprising aspect of the Condon v Basi judgment was the sentence "thus there will of course be a higher degree of care required of a player in the First Division match than of a player in a local league football match".

So what happens when Rushden and Diamonds plays Manchester United in the FA Cup? Are we seriously to believe that the two sets of players will owe each other a different degree of care?

The result of these uncertainties, not to mention the difficulties in ascertaining the level of loss where a professional sportsman's career is brought to a premature end means that there is a strong incentive on both sides to settle out of court.

Indeed, in a potentially high profile case that I was involved in last year in which settlement was reached, the claimant would not allow the settlement award to be made public.

Perhaps the only certainty that arises out of this contradictory set of circumstances, is that insurance for sporting bodies, organisers, officials and participants in sporting events is essential and must represent a growing market for tailored products, especially at the amateur level.

Rod Evans is a partner in the insurance team at Clarke Willmott & Clarke