Fulham Football Club v Mr Jordan Levi Jones
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 18 May 2022 |
| Neutral Citation | [2022] EWHC 1108 (QB) |
| Docket Number | Case No: CF066/2021 CA |
| Court | Queen's Bench Division |
[2022] EWHC 1108 (QB)
THE HON. Mr Justice Lane
Case No: CF066/2021 CA
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from Recorder Craven sitting in Swansea Civil Justice Centre
Cardiff Civil and Family Justice Centre
Mr L. Krsljanin (instructed by Browne Jacobson LLP) for the Appellant
Mr A. Arentsen (instructed by David W Harris & Co. Solicitors) for the Respondent
Hearing date: 12 April 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Lane
On 10 December 2016, a football match took place at Motspur Park, London between the under 18 teams of Fulham Football Club and Swansea City Football Club. The respondent, Mr Jones, was playing for Swansea, whilst Mr Harris was a member of the Fulham side, playing in midfield.
Towards the end of the first half of the match, Mr Harris tackled Mr Jones, as a result of which Mr Jones suffered a serious injury to his right ankle, which very regrettably ended his professional football career.
A. THE PROCEEDINGS
On 10 December 2019, Mr Jones commenced proceedings against Fulham, as the employers of Mr Harris vicariously liable for his actions, on the grounds that the tackle on Mr Jones amounted to an assault, or alternatively, negligence on the part of Mr Harris.
The trial of the action took place on 5 and 6 August 2021 before Mr Recorder Craven. The trial was conducted remotely by CVP. The recorder heard evidence from Mr Jones, Mr Harris, Mr Anthony Pembridge (the coach of the Fulham side) and two expert witnesses, Mr Keith Hackett, who was called by Mr Jones, and Mr George Cumming, who was called by Fulham.
The recorder handed down his judgment on 13 October 2021. In it, the recorder dismissed the claim for assault but held that Fulham was vicariously liable for what he found to be the negligent act of Mr Harris in tackling Mr Jones as he did. At the hand-down, Mr Krsljanin, then as now counsel for Fulham, applied for permission to appeal. The recorder refused permission. In doing so, he made a number of statements upon which Fulham seeks to rely.
Permission to appeal was granted by Eady J on 10 February 2022 on each of the four grounds of appeal advanced by Fulham. I heard the appeal on 12 April 2022. At the request of Mr Krsljanin and Mr Arentsen (who appeared for Mr Jones, as he had before the recorder) I viewed the video recording, which the recorder had seen at the trial. I am grateful to Mr Krsljanin and Mr Arentsen for the quality of their written and oral submissions.
I bear in mind that this appeal is governed by CPR 52.21. CPR 52.21 (3)(c) provides that the task of the appellate court is to decide whether the decision of the lower court was “wrong”. A decision will not be “wrong” because the appellate court merely disagrees with the lower court's legitimate findings of fact.
B. THE TACKLE
Before turning in detail to the recorder's judgment, it is, I consider, helpful to describe the tackle in a little more detail, based on the recorder's findings on which no issue is taken. Shortly before the tackle, Mr Jones had possession of the ball. He had started to run into Fulham's half of the pitch, towards its goal. Mr Jones was running close to the touch line. Mr Harris chased after Mr Jones. He came more or less parallel to him and made his tackle from the side. The experts agree that Mr Harris's tackle was not from behind. Mr Harris led with his right foot and made contact first with the ball, stopping it. Mr Harris's right foot came into contact with Mr Jones, as did Mr Harris's left foot.
Mr Jones was brought to the ground. Immediately after, Mr Harris rose to his feet, collected the ball (which was still in play) and played on. The recorder did not find the tackle to be a “scissors tackle” in the sense of “a deliberate trap or pincer manoeuvre” (paragraph 64 of the judgment).
The tackle happened in full view of the referee, who was only a few metres away from Mr Jones and Mr Harris. He is a fully-qualified FA-accredited referee, working as such part time. He did not award a foul against Fulham, let alone a yellow or red card.
The video discloses no adverse reaction from spectators, players or coaching staff. A number of spectators were present on the touchline near to where the tackle took place.
Before the issuing of the claim, no complaint had been made in respect of the tackle; nor was any disciplinary action or investigation instigated.
C. CASE LAW ETC
In order to do justice to the recorder's judgment — and to understand the challenge made to it — it is necessary to examine the case law relating to claims of negligence arising from the actions of participants in sporting competitions. The first case is Condon v Basi [1985] 1 WLR 866. Condon involved a tackle which broke the plaintiff's leg, during a Sunday afternoon match between Whittle Wanderers and Khalsa Football Club, playing in the Leamington local league. The referee described the challenge as a sliding tackle which came late and was made in a reckless and dangerous manner, by lunging with the defendant's boot, showing about a foot to 18 inches from the ground. The referee considered that this constituted “serious foul play” and he sent the defendant off the field.
The trial judge accepted the “value judgments” of the referee, concluding as follows:-
“It is not for me in this court to attempt to define exhaustively the duty of care between players in a soccer football game. Nor, in my judgment, is there any need because there was here such an obvious breach of the defendant's duty of care towards the plaintiff. He was clearly guilty, as I find the facts, of serious and dangerous foul play which showed a reckless disregard of the plaintiff's safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game”.
Sir John Donaldson MR, giving judgment in the Court of Appeal, could not see how the trial judge's conclusion could be faulted on the facts. On the law, the Master of the Rolls did not see how it could “possibly be said that the defendant was not negligent”.
In the course of his judgment, Sir John Donaldson MR cited the case of Rootes v Shelton [1968] ALR33, in the High Court of Australia. He considered the judgments in that case of Barwick CJ and Kitto J. Sir John Donaldson MR preferred the approach of Kitto J. The latter had emphasised that “it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon, the defendant was implied by the act of the plaintiff in joining in the [sporting] activity”. Kitto J said that:-
“…the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organised affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused, a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the “rules of the game”. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances”.
In McCord v Swansea Football Club and another [1996] UK 409, Ian Kennedy J adopted the following passage from the unreported judgment of Drake J in Elliott v Saunders and another (10 June 1994); Having pointed out that regard must be had to the “circumstances of each individual case”. Drake J held:-
“In considering the circumstances, the court should not forget that football is a game necessarily involving strong physical contact between opposing players, that it is a game sometimes played at a very fast speed, and the players have to take very very quick decisions as to how to react in where's [the] situation immediately confronting them. It is easy enough for the armchair video watcher to replay the incident frame by frame and then decide how the player should ideally have reacted to the situation, but in the real world, that is to say in the agony of the moment in the heat of the game, the player has no more than literally a fraction of one second in which to make a decision. What might be considered a mistake or error of judgment on replaying a video frame by frame may be no more than the ordinary reaction of even a skilled player.
Even the very best players will not always do what in retrospect seems to have been the ideal thing to have done. Therefore, an error of judgment or mistake will certainly not always mean that the player has failed to exercise a duty of care appropriate in the circumstances.”
At this point, we move to the sport of horse-racing. In Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054; [2022] PIQR P6, the jockey was seriously injured in the course of a race. A steward's enquiry into the incident found that Maguire and Fitzgerald had been guilty of careless riding. The injured jockey sued them. The trial judge dismissed his claim. The judge held that what was reasonable in the circumstances to avoid injuring fellow contestants, included an analysis of the object of the contest, the demands made upon the contestants, any inherent dangers, the rules of the contest, its conventions and...
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