David Sharp V. Highland And Isalnds Fire Board+steven Mclean
| Jurisdiction | Scotland |
| Judge | Lord Macphail |
| Neutral Citation | [2005] CSOH 111 |
| Date | 18 August 2005 |
| Docket Number | A531/03 |
| Court | Court of Session |
| Published date | 18 August 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 111 | |
| A531/03
| OPINION OF LORD MACPHAIL in the cause DAVID SHARP Pursuer; against HIGHLAND AND ISLANDS FIRE BOARD First Defenders: and STEVEN McLEAN Second Defender: ________________ |
Pursuer: Blessing; Thompsons
First Defenders: L Milligan; Ledingham Chalmers
18 August 2005
Introduction
[1]The pursuer sues the defenders for damages for personal injuries he sustained when he was playing football. The match took place on 27 June 2000 at the Scottish Fire Service Training School at Gullane, East Lothian. Some 70 recruits to the Fire Service had almost completed a 16-week course of training. A team of instructors, who included the pursuer, was playing against a team of recruits, who included the second defender. Very soon after the start of the match, the second defender tackled the pursuer. As a result, the pursuer sustained serious injuries to his right leg.
[2]The pursuer has raised the present action against the first defenders, who were (and still are) the second defender's employers, and also against the second defender, claiming payment jointly and severally or severally of damages of £20,000. He avers that "the said accident" was caused by the fault and negligence of the second defender for whose actings in the course of his employment with them the first defenders are liable. The first defenders deny liability. They aver that the second defender's tackle on the pursuer was a fair and reasonable attempt to win the ball. They further contend that if the second defender was negligent, they are not vicariously liable for his actings. In addition they state a plea of volenti non fit injuria, but at the hearing on evidence their counsel expressly departed from that plea. The second defender has not entered the process. At the commencement of the proof the pursuer's counsel undertook that the pursuer would not seek decree against him. The first defenders later led him as a witness. Damages are agreed at £6,000.
[3]The first question to be resolved is whether the pursuer has established his material averments of fact. If he has, the next question is whether he has established that his injuries were caused by the fault of the second defender. If it was, the final question is whether the first defenders are vicariously liable for the second defender's actings.
The incident
[4]Before discussing the averments and evidence about the incident, it will be useful to set the scene. The following findings are based on the evidence of Mr John MacLennan, one of the first defenders' officers, who was familiar with the running of the School, and Mr Paul Owens, one of the instructors, who acted as the referee. The recruits were employees of various Scottish Fire Boards. It was a condition of each recruit's employment that he should go on the course. While he was on the course he was paid by his employers and he remained subject to their disciplinary rules. The football match took place in the last week of the course, with the permission of the Commandant of the School. It was organised by the instructors and although it was not mentioned in the printed course timetable, in practice time was made for it. It was intended to be a friendly match between the instructors and the recruits. Neither participation nor attendance was compulsory. The Training School provided the football pitch, which was mown for the occasion, properly marked and provided with corner flags, goal posts and nets. The School also provided football strips for each team. Mr Owens described the match as "a sort of tradition". It was "the instructors' way of thanking the recruits for their hard work and effort." The recruits looked forward to it as an occasion when they could feel a sense of release and relax a bit. It was not intended to be a deeply serious contest. Mr Owens described it as "an informal kick-around rather than a football match". The atmosphere of the occasion is indicated by Mr Owens's description of his role. He had no professional qualifications as a referee. He described himself as an arbiter rather than a referee, explaining with engaging insouciance that his unofficial job description was to make sure all his decisions went the instructors' way so that the instructors won. Unfortunately he did not see the incident in which the pursuer was injured. When it happened, he immediately abandoned the match. The incident "soured the atmosphere - put a damper on it." After the incident there was an inquiry as a result of which the tradition of holding the football match was abandoned.
[5]The pursuer's averments about the incident are in these terms:
"Shortly after the start of said football match the pursuer was high-tackled by the second defender. The pursuer was tackled from his right-hand side and did not see the second defender approach. The second defender struck the pursuer with both feet in the middle of the right lower leg area. The second defender entered the said tackle with the studs of his boots pointing towards the pursuer's said leg. As a result of said incident the pursuer suffered the loss, injury and damage hereinafter condescended upon. [ . . . ] A moderately severe force was required to produce the injury sustained by the pursuer."
The first defenders' averments about the tackle are as follows:
"Shortly after the commencement of the match, Mr McLean tackled the pursuer. At the time of the tackle, the pursuer did not have the football under his control. Mr McLean tackled him from the side. In carrying out the tackle he led with one foot and made a genuine and successful attempt to win the ball. In doing so, he was also involved in a collision with the pursuer. Such tactics and collisions are commonplace in the course of a football match."
[6]I have found it exceptionally difficult to make findings in fact about the tackle. There is no video or photographic evidence. The eye-witnesses who gave evidence in court from 31 May to 2 June 2005 were required to describe an event which had occurred nearly five years before, on 27 June 2000, and which had lasted for no more than a very few seconds. All these witnesses were Fire Service officers. Each of them impressed me favourably as a mature and responsible witness who was honestly doing his best to tell the truth. It is not realistic, however, to expect, even from the most honest witnesses, precise and consistent recollections of the positions, movements and directions of the players and the ball at the time of the tackle. A further difficulty was that all the eye-witnesses not only gave evidence of fact but also offered their opinions as to whether the second defender had been negligent, frequently using the ambiguous word "reckless". Those passages of evidence on the issue before the court were led without objection, but I did not find them helpful and I have disregarded them.
[7]All the witnesses were agreed that it was the second defender who made the tackle and that he did so very shortly after the kick-off. The pursuer said that he (the pursuer) was in the instructors' half of the pitch, around the perimeter of the centre circle. He received the ball under his right foot. He passed the ball forward. It was his first kick of the match. He placed his right foot back down on the ground. He then felt a major impact on his right leg which lifted him into the air and caused him to fall to the ground. He felt extreme pain and he remained on the ground until he was carried off. The impact had been a lateral force from his right side, and contact had been made with his right leg about 6 to 8 inches above the sole of his foot. He did not see the second defender before the impact. He was adamant that he had already kicked the ball before the second defender tackled him. In addition to this evidence of fact, the pursuer gave evidence of inferences he had drawn about the incident. He considered that the second defender must have been running at full speed and must have been on the ground or very close to the ground. He believed it was the second defender's leading leg which had hit him. He said there was no reason why the second defender should feel any malice towards him, but there had been general animosity among the recruits towards the instructors, and some of the recruits distinctly disliked their instructors. He thought the second defender wanted to make sure the pursuer knew he was on the pitch. The second defender had apologised to him when he returned from hospital.
[8]I consider that it is important to distinguish between the pursuer's direct evidence of what he did and experienced, on the one hand, and his beliefs and inferences, on the other. I am satisfied that his evidence about what he did before he was tackled, and what he felt at the time of the impact, is acceptable. He gave that evidence in a convincing manner and, as will appear later, his evidence is consistent with that of other witnesses whose evidence on these points I am prepared to accept. I believed him when he said that he had made his first kick of the match before he felt the impact. I accept from him that before he was tackled he had passed the ball and had placed his right foot back on the ground. I also accept that he did not see the second defender before the tackle, that the second defender approached from his right hand side, and that he was struck forcibly on the right leg some 6 to 8 inches above the sole of his foot. All this evidence had the ring of truth. I do not think, however, that it would be safe to rely on the pursuer's inferences about the second defender's pace or where he was in relation to the ground or which of his legs hit the pursuer. The pursuer did not observe any facts from which such inferences could be drawn. He described the tackle as "reckless" and "most definitely a foul". I have no doubt that he has heard the comments of other witnesses about the tackle, and that he has thought a great deal about it and...
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