Is Recklessness a requirement in sports injury cases?

Insurers, sport governing bodies, teams and venues are – rightly – increasingly concerned about the rise in issues regarding reckless actions, potential criminal intent and the coverage, or lack of it, afforded by the insurance policies they provide or purchase.

So what balances and controls does the law provide?

In physical contact sports and those requiring the use of equipment that increases risk of injury, inevitable questions are raised regarding legal duties. The variety and nature of sports and their respective risks create an equal – or greater – range of problems.

The short answer is that while recklessness is often a feature of negligence in these cases, it is not a requirement for a finding of liability.

There are also different degrees of care expected from different levels of sport, professional, amateur or community and often confusion around the difference between criminal acts and those that might result in civil liability.

The Courts have to evaluate cases in the context of the value of sport to society – not discouraging participation by imposing too high a duty of care etc.

Chris Foulkes, Partner, provides some key background – read on and get in touch for more insight and skilled advice.

 

The complex landscape behind sports injuries

A key consideration in many cases is the difference between criminal acts and those that might attract civil liability.

If a criminal offence is committed, a very serious action must have been inflicted. Obvious examples relate to incidents that are committed and unrelated to the game such as a fight or deliberate off the ball incident.

A player-to-player incident may be considered “reckless” but that does not make it a criminal offence.

Whatever the nature of the incident, the expert evidence (typically from past and current players) is often crucial in determining whether that criminal threshold has been met.

The same applies in civil cases.

Civil liability is settled as set out by the Court of Appeal in Caldwell v Maguire and Fitzgerald (2001) in that each participant in a lawful sporting contest owes a duty of care to all other participants. The threshold for civil liability is also high and should amount to proof of something more than a mere error of judgement or a lapse of skill or care.

For many sports of course, injuries are an accepted and inevitable risk. Injuries become actionable in the Courts where conduct falls below the standard of care appropriate. For a finding of reckless action, the test is whether an act is negligent in all the circumstances and in context – ie, the sport being played and what is considered acceptable within the game.

A rugby tackle that causes serious injury may only be considered negligent if it falls below the standard of care required in the circumstances of that particular game and with those particular players, even if the contact is outside the rules and is subject to sanction. Again, expert evidence is often crucial in determining whether the required threshold has been met.

The recent case of Czernuszka v King (2023) involved an amateur female rugby player who was left paraplegic following a spinal injury sustained in a tackle. The Court found that the Defendant had failed to exercise such degree of care as was appropriate in all the circumstances, was obviously dangerous, reckless and was liable to cause injury amounting to negligence and therefore had a civil liability for compensation. In this case the Defendant did not assert that the tackle inflicting injury was a mistake or misjudgement. Further, the Court found that the tackle was not a legitimate one or an error of judgement. The Defendant was found to have been reckless and therefore met the higher and more stringent test.

The standard is an objective one and is required to reflect the skill required of those involved within their sport and at the level being played. It is “… not enough to establish negligence that the conduct was a breach of the rules of the sport in question…”

It’s necessary to carefully consider the nature, level and context of the sport event being played. A higher degree of care is required in a professional match than one at community or amateur level.

Recklessness is often a feature of negligence in these cases but is not a separate requirement for a finding of liability. In Czernuszka, the test was articulated in the context of “whether the Defendant failed to exercise such care as was appropriate in all the circumstances…”

Accordingly, there is no set principle in sport cases that the relevant conduct must be reckless for liability to be established, ie, it is not a test for a finding of negligence.

While in certain circumstances a standard of recklessness or very high carelessness may be appropriate, it is clear that this will not always be the case.

Injury Liability