Consent and the Rules of the Game: The Interplay of Civil and Criminal Liability for Sporting Injuries
| Author | Stefan Fafinski |
| DOI | 10.1350/jcla.2005.69.5.414 |
| Published date | 01 October 2005 |
| Date | 01 October 2005 |
| Subject Matter | Article |
Game: The Interplay of Civil and
Criminal Liability for Sporting
Injuries
Stefan Fafinski*
Abstract
Each year, millions of people are injured whilst playing sport. An
increasing number of these seek civil redress for their injuries; however,
the infliction of an injury during the course of sporting activity may also
give rise to criminal liability if caused in a way that satisfies the require-
ments of a particular offence. This article examines the nature of the law’s
intervention in the sporting area. It provides a brief outline of the rela-
tively well-established position at civil law before moving to consider how
the issue has been addressed by the criminal law with particular emphasis
on the role of consent. Finally, the article engages with the complex
interplay between the law and the rules of the relevant sport that has been
a pervasive feature at both civil and criminal law.
Participation in sporting activities is an extremely popular recreational
pastime; currently around 46 per cent of the UK’s population,or 27
million people, take part in sports more than 12 times per year—a figure
which the Government is keen to increase.1 In turn, a large number of
these play organised sports under the regulation of recognised sporting
bodies; for instance, the English Football Association reports 500,000
men playing football in affiliated clubs2 and the English and Welsh
Rugby Football Unions add a further 185,500 senior level rugby play-
ers.3 Given this level of participation, particularly in sports involving
physical contact, it is hardly surprising that it is estimated that there are
at least six million new sporting injuries each year.4 A combination of
the sheer volume of injuries with increasingly prevalent conditional fee
arrangements has resulted in an increasing number of injured sports-
men speculatively seeking civil remedies against their opponents, gen-
erally founded in the tort of negligence. Of course, there is also the
potential for injuries inflicted during sport to attract the interest of the
criminal law, if the incident in question satisfies the requirements of an
appropriate offence.
This article will explore the extent to which the law intervenes within
sports to impose liability, civil or criminal, on those who cause harm to
* Research Fellow in Law, University of East Anglia; e-mail S.Fafinski@uea.ac.uk. The
author is extremely grateful to Dr Emily Finch for her invaluable comments on
earlier drafts; any remaining errors or inaccuracies are solely those of the author.
1 Game Plan: a strategy for delivering the Government's sport and physical activity
objectives (Strategy Unit, December 2002), available at www.number–10.gov.uk/su/
sport/report/01.htm, accessed 13 July 2005.
2 See www.thefa.com/Grassroots/PlayingFigures/, accessed 13 July 2005.
3 See www.irb.com/, accessed 13 July 2005.
4 T. Kevan, ‘A Brief Guide to Sports Injury Cases’ (2002) Autumn/Winter Medico-
Legal News 5.
414
Consent and the Rules of the Game
others during sports and evaluate whether a coherent and cohesive
approach has emerged from the relevant case law. It will examine the
way in which both the requirements of the law of negligence in civil law
and the elements of non-fatal offences against the person in criminal law
have been interpreted in relation to sporting injuries and evaluate the
problems arising from the consensual nature of participation in sport.
Finally, the interrelationship between the imposition of legal liability
and the ‘rules of the game’ must be examined to establish whether the
conduct outside the boundary of acceptable behaviour in a particular
sport would automatically give rise to civil or criminal liability.
The civil law—negligence5
Since it has already been identified that most injured parties would seek
a civil remedy based in negligence, it is important to summarise the
requirements for a negligence action to succeed. The position in relation
to negligence is relatively well established, although some difficulties
arise when considering the level of skill that it is reasonable to expect
participants to exercise; this is further complicated by the role of con-
sent. The basic principles of negligence had their origins in the neigh-
bour principle, famously laid down by Lord Atkin in Donoghue v
Stevenson:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who then is
my neighbour? The answer seems to be—persons who are so closely and
directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts
or omissions which are called into question.6
Therefore, the elements of liability in negligence can be listed as follows:
the defendant must owe the claimant a duty of care which is just, fair
and reasonable; the defendant must have breached that duty; the breach
must have caused the claimant loss (this loss extends to pain, suffering
and loss of amenity resulting from a sporting injury); that the breach
caused the loss suffered; the loss was not too remote (alternatively, that
the loss was foreseeable) and the defendant is unable to establish a
successful defence to the claim.7
It is therefore necessary to consider the concept of the standard of
care, or the threshold at which a defendant’s behaviour is considered to
be unreasonable. The first notable evaluation of the standard of care in
a sporting negligence case was that of the Court of Appeal in Wooldridge
v Sumner,8 where an experienced rider at an equestrian event galloped
his horse around a corner so quickly that the horse went out of control,
plunged off the track and injured a photographer in the ensuing chaos.
5 For a comprehensive exposition of the evolution of the civil law position, see
C. Charlish, ‘A Reckless Approach to Negligence’ (2004) 4 Journal of Personal Injury
Law 291–6.
6 [1932] AC 562 at 580.
7 Caparo Industries Ltd v Dickman [1990] 1 All ER 568.
8 [1963] 2 QB 43.
415
The Journal of Criminal Law
This was held to be ‘an error of judgment’ on the part of the rider rather
than actionable negligence; furthermore, the Court of Appeal held that
the duty of care would only be breached where a competitor demon-
strated a ‘reckless disregard’ for the safety of the spectator. It is generally
accepted that recklessness implies a greater degree of culpability or
wrongdoing than negligence; negligence arising from a failure to protect
against a realistic possibility of harm, as opposed to the wilful exposure
of another to the risk of harm. The decision in Wooldridge v Sumner
therefore seemed to be at odds with the general principle in tort that the
defendant must ‘only’ reach the standards of the reasonable man;9 in
effect, an uncertainly defined band of behaviour between reasonable
and reckless became acceptable in sport in the eyes of the civil law.
The introduction of the reckless disregard standard in Wooldridge v
Sumner and the corresponding uncertainty immediately attracted some
academic criticism10 which eventually led to a retreat from that position.
The first indication of this was seen in Wilks v Cheltenham Hospital
Homeguard Motorcycle and Light Car Club,11 Phillimore LJ stating that:
Whether or not the competitor was negligent must be viewed against all
the circumstances—the tests applied in Wooldridge v. Sumner are only
applied if the circumstances warrant them.12
Therefore, the reckless disregard test could be avoided if the circum-
stances warranted such avoidance. Furthermore, Lord Denning MR,
whilst tacitly accepting the standard in Wooldridge, used language that
was arguably far short of an acceptance of the notion of reckless dis-
regard, concluding that:
The rider is, I think, liable if his conduct is to evince a reckless disregard of
the spectators’ safety: in other words, if his conduct is foolhardy.13
Reckless disregard, then, became diluted to foolhardiness, thereby low-
ering the threshold for unreasonable behaviour in sports. The gap was
finally closed altogether in the landmark case of Condon v Basi,14 where
an amateur footballer was held liable for breaking his opponent’s leg in
a tackle; his sliding tackle was adjudged to constitute ‘serious foul play’
and to have been made in a dangerous manner (albeit without malicious
intent) and to have been worthy of a sending off. The Court of Appeal
described the standard...
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