An assessment of the likelihood of a successful claim in negligence against a sporting governing body
9th December 2020
It is not uncommon for injuries to occur to the participants in a sporting contest. The risk of injury, particularly in contact sports, is a recognised occupational hazard of the sport. However, as sport becomes more commercialised we are witnessing an unprecedented growth in litigation where claims for negligence are becoming more commonplace. The past few months have thrown up numerous examples of former professional athletes now suffering life-limiting conditions following retirement from sport. The most recent of these is former England Rugby Union World Cup winner, Steve Thompson and seven former players who are considering a claim of negligence against the sporting governing body. The following piece will examine what is currently known about the duty of care owed by sporting governing bodies and the likelihood of such a claim succeeding.
The tort of negligence occurs when someone breaches a duty of care they owe to someone else. If the breach of this duty results in physical, mental, and/or financial loss to the individual to whom the duty is owed, a claim for negligence may follow. It has been recognised that in sport a duty of care is owed between the participants on the field of play, between the match official and participants, between coaches and participants, and between governing bodies and participants.
The relationship between a sporting governing body and its participants is the least explored of these areas. Whilst reported case law have accepted that it is fair, just and reasonable to impose a duty of care on governing bodies in respect of safety, the scope and definition of such a duty has not been fully established. This will provide the biggest hurdle for the class action being considered by the former rugby union players and their legal team.
The leading case in terms of the duty of care owed by governing bodies in UK law is Watson v British Boxing Board of Control  QB 1134, where the governing body was held to be liable for the horrific injuries suffered by Michael Watson in his boxing bout with Chris Eubank. The court ruled that when a governing body assumes a regulatory rather than advisory role they then open themselves to potential liability. In this instance, the British Boxing Board of Control (BBBC) was responsible for promotion of safety in the sport and was held to have failed in that duty by not supplying adequate ringside medical care. In reaching its decision, the Court of Appeal came to key conclusions regarding the relationship of the BBBC and its members. The Court considered the significant degree of control that the BBBC had over all aspects of professional boxing in the UK, therefore, it was in the best position to determine the appropriate safety controls. Secondly, given that the sport is inherently dangerous, the BBBC was under a duty to minimise those risks and this extended to the provision of adequate ringside medical treatment. Thirdly, that given the BBBCs control, they had specialist knowledge of such risks and lastly, that those advising on safety issues and medical treatment should have up-to-date knowledge of current best practices including emergency treatment of serious ringside injuries such as the ones suffered by the claimant.
In effect, the judgement outlines control and reliance as being two key factors when assessing whether a duty of care exists. However, as Lord Phillips identified, “if a governing body simply issued safety advice to all participants, it would be strongly arguable that there would not be sufficient proximity between the parties.” This outlines the difference between a governing body that makes and enforces rules against one who merely provides safety advice. It is arguably relatively easy for the court to establish control where a regulatory body focuses on a specific class of people and can expel members who do not comply with the rules. Once control is established, it is then possible to determine reliance. Therefore, the more control a governing body has, the more likely that reliance exists between it and its members, and the more likely a court will establish that a duty of care exists.
By contrast, it is worth exploring the approach of the Australian courts, in Agar v Hyde  HCA 41, both claimants sustained serious neck injuries whilst playing local games of rugby union in Australia. The claimants alleged that the International Rugby Football Board (IRFB), the international sporting federation for rugby union, had a duty to care to amend the rules and remove the use of scrums knowing that scrums provide an inherent and unnecessary risk to the participants. The High Court of Australia rejected this argument and held that it would be ‘absurd’ to say the IRFB owed a duty of care to each player who played under their laws. The Court concluded that the IRFB clearly had no control over the way matches were conducted or how amateur clubs implemented their laws. Added to this, the participants have a free choice to play the sport and are well aware of the inherent risks involved. Holding the IRFB liable for damages out of their control would deter participation in these organisational bodies. A further point of interest is that the judgement appears to suggest that had the claimants been professional athletes as opposed to amateurs then the outcome may have been different. This is on the basis that there is significantly more revenue and resources in professional sport for research and prevention of serious injury risks. Could this opinion be crucial in persuading the UK courts with respect to the class action? The later decision of Haylen v New South Wales Rugby Union Ltd  NSWSC 114 supports this view. As in Agar, the claimant was rendered quadriplegic and sued the NSWRU arguing that the NSWRU controlled the game of rugby in New South Wales and, as such, was under a duty to ensure that players were not subjected to an unnecessary risk of injury. The Supreme Court of Australia rejected this view and came to the same conclusion as the Australian High Court in Agar. Further to this, the Supreme Court was also keen to point out that administrators of an organisation whose sole purpose is to ensure that sport should be enjoyed and who are part-time amateurs, assume less of a duty of care than had the participants been professional. These decisions, although unsuccessful for the claimants, serve to increase the responsibility placed on governing bodies to ensure that the risk of foreseeable injury is minimised. The court in the case of McCracken v Melbourne Storm Rugby League FC and Others  NSWSC 107, where the claimant suffered a career ending injury following a spear tackle by two opposing players, commented that governing bodies are in a “superior position to investigate and assess such matters relating to the need to take reasonable safety measures”.
The approach of the Court of Appeal in Watson and the Australian courts in Hyde and Haylen appear to be in direct conflict with one another given that the BBBC was found liable whereas the IRFB and NSWRU were not. However, there is an important distinction between the cases and it concerns the rule under consideration. The rule in Agar and Haylen related to the actual playing of the sport whereas the rule in Watson related to the delivery of the infrastructure necessary to support play. If Watson is to be on a par with Agar, the allegation against the BBBC would have been that it failed to make a rule such as banning blows to the head during bouts.
The case of Wattleworth v Goodwood Road Racing Company Ltd and Royal Automobile Club Motor Sports Association Ltd and Federation Internationale de l’Automobile  EWHC 140 further highlights the potential for governing bodies in the UK to be liable for breaches of safety procedure. The court held that the duty of the governing body was to ensure that the track licensed for racing was reasonably safe and that appropriate protocols for ensuring this safety had been followed by a reasonable and competent inspection. The court felt that the governing body had discharged this duty on the facts and was not liable for the claimant’s death. Therefore, following the analysis of the aforementioned case law, it can be said with some degree of clarity that a governing body owes a duty of care to ensure that the inherent risks of sport are minimised by being responsible for the safety rules and protocols pertaining to that particular sport. The question, however, remains open as to how far this duty extends given the recent high profile examples of athletes now living with life-limiting conditions following their participation in sport.
If Steve Thompson and his fellow former professionals are able to bring an action to court, the governing body will no doubt argue volenti non fit injuria (“to a willing person, no injury is done”). It is a defence often pleaded in negligence claims but is often misunderstood and misapplied. The defence was explored in detail in Smolden v Whitworth and Nolan  ELR 249 where an injured athlete successfully sued the match official for the serious spine injuries he sustained as a result of a collapsed scrum. The defendant referee argued that the claimant was fully aware of the rules and the dangers associated with collapsed scrums and, as such, had impliedly consented to the risk of injury caused by the non-application of the rules. In response to this, Bingham LCJ commented:
“The [claimant] had of course consented to the ordinary incidents of a game of rugby football of the kind in which he was taking part. Given, however, that the rules were framed for the protection of him and other players in the same position, he cannot possibly be said to have consented to a breach of duty on the part of the official whose duty it was to apply the rules and ensure as far as possible that they were observed”.
In obiter dicta in Wattleworth, volenti was considered to be an unsustainable defence for the same reasons given in Smolden. The court opined in Wattleworth that although the participant ran the risk of the inherent dangers in motorsport, such as crashing, he did not voluntarily run the risk that the governing body would fail to ensure that the track was safe to use.
This illustrates that whilst the defence is a difficult one, it is not impossible. The governing bodies will have to clearly demonstrate in the Thompson et al. case that the procedures in place for dealing with head injuries and minimising the risk of head injury is the absolute best it can be given the expertise and medical evidence available at the time of implementing the relevant rules and procedures. Whereas the claims of former footballers have been swept under the carpet to some extent owing to the age of the players when Dementia and similar conditions developed (usually in their 60s and 70s), the same cannot be said of the eight former rugby union players who have all developed brain disease in their early 40s.