Compensation for sporting injuries in contact sports

Robert Rhodes QC discusses the question of compensation for sporting injuries in contact sports, following the recent case with Dominic Fry and Ryan Ball.

Contact sports such as rugby and football are exciting and exhilarating to play. But what if you are injured while playing? Can you get compensation for your injury and any loss of earnings?

This question surfaced recently in a case arising from an injury on the rugby field. Dominic Fry was seriously injured by a player on the opposing side. Mr Fry had kicked the ball downfield, aiming for touch, when his opponent tackled him. As a result of that impact, Mr Fry had to have his spleen removed and sued for damages for alleged negligence. Mr Fry claimed that his opponent’s tackle had been unlawful, asserting that the defendant had led with his knee and elbow. The defendant’s case was that it was a lawful tackle, being a genuine attempt to charge down the ball, and that he had not led with either his elbow or his knee.

Had the Judge found on the facts in Mr Fry’s favour, then he would have been entitled to substantial damages against the defendant.  The Judge, however, faced with the conflict of evidence, ruled in the defendant’s favour, and dismissed the claim. While sympathising with Mr Fry, the Judge found that the defendant had made a genuine attempt to charge down the ball, and that there was nothing he could have done to avoid impact once the ball had gone. The Judge added that he rejected “out of hand” the suggestion that the defendant had been acting in any way maliciously, had intended to cause injury or had acted in an unsportsmanlike manner.

You cannot get compensation for a sporting injury simply because you sustain an injury.

There must be some fault on the part of the person you are suing. Thus every case turns on its own facts, and what the Judge at trial finds to have actually happened, bearing in mind that the burden of proving the case is on the claimant, not on the defendant.

Sometimes sporting injuries are caused by not just negligence, but deliberate criminal assault. In those cases, the defendant is at risk of being prosecuted for offences under the Offences against the Person Act 1861, which can carry substantial sentences of imprisonment. An example of a criminal case is a football player whose shirt is repeatedly tugged from behind by an opponent, and who, out of exasperation, deliberately elbows his opponent in the face, breaking his nose or blinding him. Robert has tried such a case in the Crown Court, and the defendant was convicted. If a defendant in a criminal case is convicted of an assault, the court is under a duty to consider ordering the defendant to pay compensation to the victim.

If a player is seriously injured in a contact sport, he has the choice of claiming in the civil courts, which is likely to be expensive for him unless he is insured or can persuade his opponent to settle the claim by mediation, or complaining to the police in the hope that criminal proceedings are brought.  Criminal proceedings will of course avoid the substantial financial cost to the complainant of civil litigation, but they require a higher standard of proof before a defendant can be convicted.  In the civil courts, the claimant only has to prove his case on the balance of probabilities.  In the criminal courts, however, the case must be proved so that the jury is sure of guilt: the balance of probabilities is not enough.

Robert’s advice to the victim of a sporting injury would be only to complain to the police if there is substantial supporting evidence of his case, e.g. other, credible, witnesses to the incident. Probably the most satisfactory way of settling a claim arising from a sporting injury is mediation, which has the advantages of speed, confidentiality, and low cost.

Robert Rhodes QC is a member of the Mediation Panel of the international Court of Arbitration for Sport.

News 18 Dec, 2018