ACTIONS AGAINST OFFICIALS AND GOVERNING BODIES In terms of insurance, it is important to note that sports law issues can arise in many situations, not just policies specific to persons or organisations connected with sports. In one matter an employer arranged a five-a-side tournament where the safety precautions were inadequate and insurers are dealing with a claim under the employers EL policy, equally the injury could have been sustained by a guest in which case the PL policy might operate. If a footballer is injured by a tackle, he can look to his opponent to recover damages if the tackle was negligent. The test would seem to be reckless disregard for the safety of others. If the offending player was worth pursuing then all is well. If it were a professional game the opposing club could also probably be joined in. However, what if the injury was not caused by another competitor or occurred during a Sunday morning game in a local park where the proposed defendant was impecunious? Or was as a result of the negligence of a match official where he has applied rules and regulations correctly but the actions of the Football Association or other governing body are called into question? The two well-known decisions in the area of liability of officials are the cases of Smoldon v Whitworth and Vowles v Evans . Both cases involved rugby referees who had not applied the rules of the game properly and as a result catastrophic injuries were sustained by players. The Court of Appeal when giving judgment made it clear that whilst the duty of care exists the burden of proof will be high. However, where there is a failure to apply the rules correctly this can result in liability. The rules were divided into those which are there for the proper running of the game and those that contained an element of safety for participant. Only a failure to apply the later could result in liability. In answer to the suggestion that a finding in favour of the claimant would open the floodgates for actions against referees, the decisions were based on the very special facts of the case. A referee would not be liable for errors of judgment, oversight or lapses of which any reasonable referee might be guilty in the context of a fast moving, vigorous, physical sport. Only time will tell if the genie has been let out of the lamp. However, what of the body responsible for the sport overall? Could the Sunday morning player sue the Football Association? The Football Association is responsible for ensuring that the international Laws of the Game are applied in England on the field, and that the rules and regulations concerned with running football in England are observed by officials, clubs and players off the pitch as well as on it. The Laws of the Game are determined by the International Football Association Board (IFAB), and The Rules and Regulations of The Football Association, are determined by The FA Council, they are aimed at establishing an efficient and fair regulatory structure. These rules and regulations cover matters ranging from the affiliation of clubs and associations, to misconduct, financial dealings and arbitration. Where a referee correctly applies the rules, one can envisage actions against governing bodies in connection with instructions to referees from governing bodies and the impact of the rules promulgated by them. One example could be the fair play rule where teams would kick the ball into touch so that an injured player could get treatment. Football clubs (through the managers) considered that this was becoming an unecessary interuption to the flow of a game but, how can you stop players kicking the ball out? The managers decided between themselves that this would be stopped by direct pressure on the players. No directive has ever been issued by the FA on what should happen. But what if a referee did not stop the game in good time and there was a delay in treating a genuinely injured player resulting in death or injury. Could an action against the clubs or the FA be sustained? Some recent cases have given guidance on when a sporting body might owe an individual participant a duty of care. The Court of Appeal considered the liability in negligence of regulatory bodies for failing in its rule-making and enforcement duties in the recent, high profile case of Watson v British Boxing Board of Control . In 1991, Michael Watson fought Chris Eubank for the WBA Super Middleweight title in London. The referee stopped the fight in the final round when Watson was unable to defend himself. Watson had sustained a brain hemorrhage and after returning to his corner, he lapsed into unconsciousness. There was chaos in and outside the ring. None of the three doctors present at the ringside went to his assistance until requested to do so, the first reaching him some seven minutes after the fight was stopped. Watson was then taken by ambulance to North Middlesex Hospital less than a mile away where he was intubated, given oxygen and an injection of Manitol a diuretic that can reduce swelling of the brain. He was transferred by ambulance, still unconscious to St Bartholomew's Hospital, as the North Middlesex Hospital did not have a neurosurgical department. There an operation was carried out to evacuate a sub-dural haematoma. By this time, however, he had sustained serious brain damage. This has left him paralysed down the left side with physical and mental disabilities. The fight took place under the rules and regulations of the British Boxing Board of Control (“the Board”) in which the Board took steps to reduce the inherent dangers in boxing. They only granted licences for a boxing contest where safety arrangements were those of their own making. The promoters and the boxers did not themselves address considerations of safety. The Board required the boxing promoter to contract on terms under which the Board’s rules applied, making provision for safety in those rules. Watson argued that the resuscitation treatment he received at the North Middlesex Hospital should have been available at the ringside and, had it been available he would not have sustained permanent brain damage. The Board assumed responsibility for the control of an activity the essence of which was that personal injuries would be sustained by participants. The Board assumed responsibility for determining the details of the medical care and facilities and, the participants (Watson and Eubank) relied upon the Board to ensure that all reasonable steps were taken throughout to provide immediate and effective medical attention to those injured during the course of activities. The Court of Appeal held that there was a sufficient nexus between the Board and the professional boxer who fought in a contest to which such rules applied so as to be capable of giving rise to a duty in the Board to take reasonable steps to try to minimise or control, whether by rules or other directions, the risks inherent in the sport and, had the correct system of care been in place, the outcome of Michael Watson’s injuries would have been significantly better. In short the BBBC did not take the necessary steps to avoid the injuries to the claimant. In Wattleworth v Goodwood Road Racing Co Ltd a claim was brought by the widow of Simon Wattleworth who was killed at Goodwood Motor Racing Circuit in November 1998. The deceased was a successful property developer with an interest in vintage racing cars, he had organised many Charity Track Days. On the fatal day, he had hired Goodwood for this purpose. Whilst racing, as he took the Lavant bend the car was not on the correct racing line. He crashed into the lorry-tyre-faced earth bank at about 60 mph. He was killed instantly. Proceedings were commenced against the three defendants: the racetrack, Goodwood Road Racing Co Ltd (GRR); the national governing body, the Royal Automobile Club Motor Sports Association (MSA); and the international governing body, the Federation Internationale De L'automobile (FIA). The case was that Mr Wattleworth's death was caused by the allegedly negligent design/tyre structure fronting the bank at the relevant part of the Lavant bend. The claimant alleged that the GRR was in breach of the duty of care under the Occupier's Liability Act 1957 and that the MSA and the FIA owed a duty in care in tort to users of the Goodwood Circuit. The Claimant lost on a number of issues including a finding that there was no breach of duty by any of the defendants. The court did however make rulings on whether the defendants could owe a duty of care to Mr Wattleworth. The court held that the GRR and MSA did owe Mr Wattleworth a duty of care but they did not breach that duty. The FIA were held to owe no duty of care, they had much less involvment in safety matters than MSA and also were only involved in international events. The court made it quite clear that a duty exists even though on ther facts there was no breach of that duty. In Perrett v Collins a claimant successfully sued a member of the Popular Flying Association; the representative body in the United Kingdom for amateur aircraft construction, recreational and sport flying. By exemption under the Civil Aviation Act, members are able to have an inspection carried out on a newly constructed aircraft, the inspectors also perform the vital function of providing the various certifications that are required to build and fly aircraft legally. The Association's inspector had negligently failed to consider whether a gearbox/propeller combination was unsafe. It was held that this was capable of amounting to a breach of the duty of care to a passenger injured in a crash on the aircraft's first flight. It was held that it was foreseeable that if the inspector and the Association granted a certificate of fitness to fly in respect of this aircraft with an inappropriate gear box, there was likely to be an accident and they ought reasonably to have contemplated a person travelling as a passenger as being affected and/or injured. These cases give a clear indication that based on particular facts, courts are prepared to hold governing bodies responsible where their rules and regulations prove to be lacking. Conclusion It seems that there is an inexorable movement to finding match officials and governing bodies responsible for injuries sustained by participants. The need for insurance has been commented on regularly and the insurance industry has been invited to fill a void. Here I refer to liability insurance generally in relation to sports injuries, not just governing bodies. In Watson, the BBBC did not insure against liability, their assets amounted to £352,000 at the time. Thus the BBBC were exposed to unprotected liability and Watson was left with a judgment that may never be fully satisfied. The need for compulsory insurance for governing bodies? In Smolden Lord Bingham MR stated it would be beneficial if all players were insured as a matter of general practice not against negligence but against the risk of catastrophic injuries. One case that highlighted the need for insurance was Elliott v. Saunders and Liverpool Football Club . The Claimant started an action following a career ending tackle by Dean Saunders of Liverpool. His claim failed and he was left with a substantial legal bill. Elliott carried third party insurance but not comprehensive cover. Elliott lost the case, he was privately funded and he was left with a substantial legal bill. It was only the benevolence of Chelsea supporters who attended a testimonial match for Elliott that avoided his financial ruin. Any bad tackle that causes injury and that is shown to have been intentional can amount to an assault with a claim being possible under the tort of trespass to the person. In the Elliott case, the action was originally pleaded in assault as well as negligence but assault was dropped by Elliott when it was made clear that there was a usual exclusion under Liverpool’s liability insurance in relation to criminal acts. The PFA operate a disability scheme, the payouts are very low, particularly when you consider the vast sums of money passing hands in the professional game. Policies are offered but take seems to be slow. Is there a need for compulsory cover? The sports principal assets are the participants; surely they are worthy of protection with a comprehensive insurance in relation to catastrophic or serious injury. The question of whether there should be a duty to insure was considered in Van Oppen v. The Clerk to the Trustees of the Bedford Charity (Harpur Trust) a schoolboy was seriously injured in a house rugby match, he was not insured he alleged the school had failed to take reasonable care for his safety, ensure that he was insured or advised his parents to arrange insurance. The claim was dismissed on the facts but on the insurance point the trial Judge held that there was no duty on the part of the school to affect insurance cover or advise the parents. The European Convention of Human Rights might have an effect here. By way of example Article 2 relates to the right to life. Inadequate provision of medical facilities could in the event of death give rise to liability. From the point of view of insurers, when offering cover to governing bodies they must satisfy themselves that: - 1. The rules and regulations show that there is proper consideration for the health and safety of participants. 2. There has been a detailed risk assessment to determine whether medical cover is required for individual sporting events and as a general requirement and; 3. If it is required then there should be a requirement to provide persons with the requisite skill and experience 4. If it is not deemed as required all participants must be told and advised to make their own arrangements. The insurance industry is well known for its response to the need for cover in particular situations, the question of risk management is key in terms of governing bodies, the exposure is relatively small but the claims are potentially massive. WHO WANTS TO BE REF THEN? By Robert Carr of Paul Roberts Solicitors Over the past 20 years, there has been an unprecedented increase in sports labour migration, international competition and litigation arising from sports injuries. From within that broader framework, this article seeks to focus on actions against defendants where no obvious right of action existed against an opposing player, but rather against match officials. The liability of referees was examined recently in the following cases where liability was established against match referees: - • Vowles v Evans & Welsh Rugby Union [2003] EWCA Civ 318 • Smoldon v Whitworth and Nolan [1997] PIQR P133. In the recent case of Allport v Wilbraham [2004] EWCA Civ 1668. The Court of Appeal pulled back and restated the high threshold for liability that exists in such cases. The law in this area could be said to be in a state of flux, however the general trend is towards an extension: Smoldon v Whitworth and Nolan A referee of a colts rugby union match was held liable for catastrophic injuries to the Claimant as a consequence of a collapsed scrum. The referee had allowed numerous scrums to collapse in what was an ill-tempered match. The laws of the game as applied to colts had been revised by the International Rugby Football Board to reduce the risk of such injuries, in particular the rules require that scrums should undergo a defined sequence of crouch-touch-pause-engage. The defendant had failed to enforce those rules and allowed the scrums to ‘come in hard’ which had lead to more than twenty collapsed scrums before the accident happened. One of the defendant’s touch judges had warned him that in his view someone would get hurt if he did not step in, and in addition there were shouts from spectators and complaints from certain players. The Court of Appeal made it clear that the threshold of liability is high and that all of the circumstances surrounding the incident had to be taken into consideration. The referee could not be held liable for errors of judgment, oversight or lapses of which any referee might be guilty in the context of a fast-moving and vigorous sport. However, they concluded that a referee owes a higher duty to the players under his control, and that on the facts he was liable. Vowles v Evans & Welsh Rugby Union This case was followed by the Court of Appeal case of Vowles v Evans & Welsh Rugby Union. A referee of an adult amateur rugby match owed a duty of care to the players to take reasonable care for their safety when executing his refereeing duties and that his breach of that duty had caused the claimant's injury. In that case the claimant was hooker for Llanharan RFC. Their loose head prop left the field due to a dislocated shoulder. The referee offered Llanharan the option of a replacement from within the scrum or non-contested scrums that was declined as they would not be entitled to the points if they won. Llanharan declined the second option but agreed to the first. The referee allowed a flanker (J) to replace an injured prop, who was not fit to play safely in the front row due to his lack of training and experience. Under the ‘Laws of the Game’ the refereewas obliged to allow a replacement from within the forwards only after satisfying himself as to the training and experience of the replacement. The referee had made no enquiries about J’s training and experience, further, he had the power to insist on non-contested scrums in these circumstances but chose not to exercise this power. This amounted to negligence and was the cause of the injury to the Claimant. This was upheld by the Court of Appeal. Rugby was an inherently dangerous sport and some of the rules were specifically designed to minimise the inherent dangers. Players relied on the referee to enforce the rules. The court held that the referee should not have offered the team the option to continue with non-contested scrums or to try J as prop, rather he should have insisted on non-contested scrums. He had effectively failed to exercise his power to insist on non-contested scrums. Allport v Wilbraham, Court of Appeal, 15/12/04 A case that went for the Defendant referee in the Court of Appeal was Allport v Wilbraham. Here, the Claimant had been paralysed from the neck down following a collapsed scrum in a rugby match which had been refereed by the Defendant. The Claimant was playing at hooker. It was argued that the Defendant had failed to control the scrum in accordance with law 20 of the Laws of Rugby by failing to call "engage" before the two front rows engaged in the scrum and further that he had failed to notice that one of the props was not in the correct position required by law 20. The judge, preferred the evidence of the Defendant to that of the Claimant's witnesses and gave judgment for the Defendant. The Claimant appealed and argued that there were defects in the judgment and sought a retrial. He alleged that the judge was not even-handed in his approach, misunderstood some important evidence and failed in a material respect to explain his conclusions. The Court rejected these arguments and held that the Judge had been entitled to prefer the oral evidence of the Defendant to that of witnesses for the Claimant and had given adequate reasons for that preference. It would appear that this case turned largely on the quality and veracity of the evidence given by the parties The future for referees In short, the liability of match officials seems to have been widened. Allport was a case that to some extent went against the tide, it was a decision based on the quality of the evidence. These decisions generally are likely to lead to other actions over the course of the coming years. The above cases concern rugby but it is foreseeable that almost any sport could come under scrutiny. Referees that fail to ‘step in’ to stop a fight or even who make a bad call or decision leading to a loss of a chance to win a competition could face an action. In February 1997. In a professional football match, the referee awarded a penalty to the home side which led to the winning goal. Proceedings were issued against the referee and the Football Association by some Leicester supporters who claimed compensation for the severe distress and anxiety as a consequence of his decision, there were claims for time off work to recover. The claim was struck out as an abuse of the process of the Court. In the current sport climate where decisions made by referees can cost clubs and participants many millions of pounds, it is not difficult to see more actions against match officials. Whichever way the law develops in the future, it is clear that a prudent referee should consider their potential liabilities and look at insuring against them. Robert Carr is head of the Sports Division at Paul Roberts Solicitors and is an experienced personal injury lawyer specialising in sports law. robert.carr@prlaw.net