Chapter 5. Civil Liability in Sports

• Pages: 149-191

5.1 INTRODUCTION

Every year, thousands of sportsmen and women are injured as a result of intentional, reckless

or careless conduct on the part of players, coaches, match ocials, professional bodies and,

indeed, clubs. Notwithstanding the reality of broken hips, displaced knees, injured feet and

lacerated skin, in the vast majority of cases, litigation does not ensue, as internal disciplinary

procedures, insurance and settlements are deemed to oer a more attractive solution than pub-

lic, lengthy and often adversarial court proceedings.

However, there remains a small, but growing, category of cases in which the courts oer a

more attractive solution to the plight of injured sportspeople. These cases, though not straight-

forward, often involve conduct that is reckless or intentional or inconsistent with the duty of

care in negligence, and typically result in several days of argument before the courts, a wide

gamut of video and audio evidence, a plethora of witnesses testifying and, if successful, signif-

icant awards in damages.

The prospect of civil liability not only has the eect of reminding sportspeople of the

need to exercise reasonable care even in the context of fast-moving games in relation to which

split-second decisions must be made, but allows keen observers of sport, such as academics, the

opportunity to problematize the conduct of sportsmen and women through the prism of the

civil law. This problematization involves asking a number of key questions: should Brett Lee

have been subject to civil liability after he floored Shivnarine Chanderpaul by bowling what

was at the time regarded as a seriously dangerous bouncer in the context of the 2008 Test

match between Australia and the West Indies? Should Chris Gayle have been sued in negli-

gence where he broke a child’s nose after he hit a six in the stands in the context of the 2012

edition of the Indian Premier League? Should the Jamaican football defender, Oniel Fisher,

have been brought before the courts where he executed a dangerous two-footed tackle on Con-

nor Hallisey in the 2016 edition of the Major League Soccer?

Although there is no clear answer to these questions as these matters never resulted in

litigation, they nonetheless raise the important issue as to what role, if any, the law should play

in regulating the conduct of sportspeople who cause injury to other s. It is against this backdrop

that this chapter has been conceptualized.

While this chapter does not attempt to provide exact answers to the many vexing ques-

tions that arise in this area, it nonetheless explores the liability of sportspeople in the torts of

trespass to the person and negligence, respectively. The chapter usefully considers important

jurisprudential developments on the liability of players, coaches, match ocials, professional

bodies and clubs, and explores the application of various defences in the sporting context. The

chapter also considers in some detail the question of damages as an appropriate remedy in the

vast majority of sporting cases where liability has been found to exist.

5.2 ASSAULT AND BATTERY

At common law, ‘assault’ is distinguishable from ‘battery’, although the line between the two is

often blurred in practice, so that both are typically referred to simply as ‘assault’. In the sport-

ing context, this does not appear to matter very much because, in most cases, both assault and

CHAPTER 5

CIVIL LIABILITY IN SPORTS

150 Civil liability in sports

battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored

since the quantum of damages for it will be rather small. An assault can be committed without

a battery and battery can occur without an assault preceding it. For example, swinging at some-

one and missing is an assault but not a battery; striking someone from behind, without his or

her knowledge, is a battery but not an assault.1

As a matter of law, an ‘assault’ may be defined as an act by which one person intentionally

or recklessly causes another person to apprehend immediate unlawful personal violence or to

sustain unlawful personal violence while a ‘battery’ may be defined as the intentional or reckless

application of unlawful force by one person to another.

5.2.1 General principles

In sporting cases, in order to obtain an award of damages, an aggrieved player seeking to

invoke the tort of assault/battery must establish that a defendant player intentionally or reck-

lessly subjected him to a contact to which he did not consent. However, it must be noted that

although intentional or reckless contact is a necessary ingredient, no ‘hostile intent’, in the sense

of malice or ill-will, is required. In other words, there is no need for the aggrieved player to

prove that the defendant player intended to cause him injury, whether physical or psycholog-

ical. What he must prove, however, is that the defendant player intended the conduct, though

not that he intended any harm by it.

The protection of the inviolability of the body through the tort of assault/battery is not at

all a new paradigm, even in the context of sports, given that, as far back as the 1980s, the Court

of Appeal in Wilson v Pringle

2 had already expressed the view that the protection of a person’s

bodily inviolability is a paramount concern of tort law. In this regard, the court explained that

even the slightest contact with another person can amount to a battery, unless the contact in

question is impliedly or expressly consented to, bearing in mind the exigencies of everyday life.

5.2.2 Sports-based case law

Although cases on assault/battery in the sporting context are relatively rare in practice, pre-

sumably because it is more dicult to establish intentional contact than negligent contact,3

courts have repeatedly reiterated in the few cases decided upon to date that players do not con-

sent to deliberate unilateral attacks on the field of play. For example, in Gravil v Carroll, Redruth

Rugby Football Club,4 the defendant player was found to have committed an unlawful battery,

thereby rendering the Redruth Rugby Football Club vicariously liable in damages, in circum-

stances where the player in question, after the whistle had already been blown, threw a punch

at the claimant resulting in the claimant sustaining a blow-out fracture of the right orbit, which

required reconstructive orbital surgery. On the facts, the court considered that, notwithstand-

ing the fact that the blow was thrown in the context of a highly competitive game following a

scrum and an ensuing altercation, it was clear that the defendant had deliberately assaulted the

claimant, an assault that the court described as ‘a tortious (even criminal) assault’.

Similarly, in the Canadian case of Leonard v Dunn,5 a player, within the context of a recre-

ational hockey game, punched another player during the stoppage of play. The court, in finding

1 L (H) v Canada (Attorney General), 2001 SKLaw Com 233 (CanLII).

2 [1987] QB 237.

3 Tim Kevan, ‘Sports personal injury’ (2005) 5(3) International Sports Law Review 61.

4 [2008] EWCA Civ 689, 2008 WL 2311367.

5 2006 CanLII 33419 (ON SC).

Civil liability in sports 151

that the defendant committed an actionable battery, concluded that this behaviour fell outside

the scope of implied consent, as it was an ‘unprovoked battery unrelated to the advancement

of the game’6 or ‘a deliberate unilateral attack’.7 In this connection, Low J was particularly

emphatic in finding that, having regard to the undisputed facts, this unprovoked battery could

not be regarded as ‘an element of the reasonable expectations of an adult recreational hockey

player playing in a non-contact league’.8

A similar outcome was arrived at in another Canadian case – Martin v Daigle

9 – in which

the court found that the defendant player had committed an actionable battery in circum-

stances where he struck the claimant, a fellow player, with his fist, thereby breaking one of the

claimant’s front teeth, and in the process also causing cuts, bruises and swelling to his lips and

face. The court explained that assault and battery are actionable per se (that is, without proof

of actual damage), though it cautioned that in cases where no actual damage is proved, only

nominal damages are recoverable. On the facts, the court concluded that the defendant player

had intended to cause bodily harm to the claimant and did cause such harm, which constituted

an actionable battery, thereby entitling the claimant to recover substantial general damages for

the physical injury sustained.

5.2.3 The defence of consent

While the defence of self-defence is available, as a matter of principle, to exonerate a player

from liability for an actionable battery where he inflicts reasonable force in order to defend his

person, by far the defence that it is most relied upon in the sporting context is that of consent.

The defence of consent recognizes that it is not in every circumstance where a player is on the

receiving end of some physical contact on the field of play that he will be able to successfully

recover damages for battery. As intimated above, the defence of consent inures to exonerate a

player who makes physical contact with another player, but in circumstances where the player’s

conduct falls within the rules of the game and does not represent a deliberate, intentional, or

unprovoked attack. For example, in Blake v Galloway,10 the defendant, a 15-year-old, was able to

successfully rely on the defence of consent against a claim in battery brought by the claimant,

also 15years old, who alleged that the defendant had intentionally or recklessly thrown a piece

of bark at him thereby resulting in significant injury to his right eye. The circumstances of the

case were that during a lunchtime period, after practising with a jazz quintet, the claimant and

defendant decided to take a break to engage in horseplay, whereby they threw twigs and pieces

of bark chipping at each other, which untimely caused the claimant’s injury. Dyson LJ held

that as the youths were engaged in high-spirited and good-natured horseplay, there could be

no actionable battery. More specifically, he found that the defendant had picked up the bark,

and had thrown it back in the general direction of the claimant, not aiming at his head, and,

although he did not shout any warning at the claimant who was not looking in his direction,

the defence of consent was nonetheless still applicable. In rearming Lord Denning’s view in

Lane v Holloway,11 Dyson LJ considered that in a sport that inevitably involves the risk of some

physical contact, the participants are taken to have impliedly consented to those contacts that

can reasonably be expected to occur in the course of the game, and assume the risk of injury

from such contacts. Thus, for example, he noted, in the context of a fight with fists, ordinarily,

6 Ibid [19].

7 Ibid [23].

8 Ibid [19].

9 1969 CanLII 161 (NB CA).

10 [2004] EWCA Civ 814, [2004] 1 WLR 2844.

11 [1968] 1 Law Com 379, 386–387.