Confusing Negligence with Rules of the Game

Setting aside a Recorder’s judgment from the Swansea Civil Justice Centre and allowing each of four grounds of appeal, a High Court Judge ordered a retrial of an action brought for assault or negligence in the course of a football match by the Defendant against the Appellant: Fulham Football Club v Mr Jordan Levi Jones [2022] EWHC 1108 (QB) Lane J

J had been playing in an under-18 match for Swansea against Fulham when, following a tackle by H, he suffered a serious injury to his right ankle which ended his professional football career.

The action was brought against Fulham, as H’s employer, alleging that they were vicariously liable for H’s assault/negligence.

The Recorder’s judgment contained a material misdirection in that it treated certain breaches of the Rules of the Game as being “very likely” to amount to negligence. The consequence of the error was to distort the Recorder’s analysis of whether H was guilty of negligence.

The laws of Association Football involved a hierarchy of playing offences. Careless behaviour attracted a direct free kick or penalty kick. Such behaviour was commonly referred to as a foul.

A reckless offence occurred when a player acted with disregard to the danger to, or consequences for, an opponent. The player concerned must be cautioned, which currently meant the referee showing a yellow card.

Using excessive force was where a player exceeded the necessary use of force and endangered the safety of an opponent which would result in a red card or sending off.

The definition of serious foul play dealt with the red card offence in the case of tackles or challenges.

The Laws of the Game of Association Football had not been drafted with civil liability in mind. Their drafters were simply not concerned with whether, at any point in the hierarchy of sanctions, there was a correlation with the laws of negligence.

Although shorthand expressions such as “football crimes” and the “unwritten code of playing culture” must be handled with care, the fact that such crimes or violations of the unwritten code were (or should be) the subject of sending-off did not mean that any sending-off was, without more, very likely to amount to actionable negligence.

In this regard, judicial notice could be taken of the fact that red cards were exhibited by professional referees much more frequently than racing stewards made findings of dangerous riding.

The real problem was the self-direction of the Recorder’s judgment where, by closely aligning serious foul play in the Laws of the Game with actionable negligence, he wrongly reduced the ambit of the inquiry required in order to answer the question whether, in all the circumstances, H’s tackle was not only a breach of the Laws of the Game but negligent.

Evidence had been given by Mr Cumming, Fulham’s expert, who was a co-author of the Laws of the Game and an eminent former referee who, as the first FIFA Head of Refereeing, was responsible for the management of referees at the 2002 World Cup. The expert called for J was Mr Keith Hackett, also a distinguished former referee.

The Recorder fell into error in his treatment of the expert evidence of Mr Cumming because he formed his own view about the video evidence and concluded that because his view was contrary to the view of Mr Cumming, Mr Cumming’s evidence fell to be rejected.  In so far as that was the reason, it was legally flawed.

The third ground of appeal contended that the Recorder erred in law by expressly refusing to take into account the context of H’s tackle and the realities of the playing culture of professional football, which was a fast-paced, competitive game necessarily involving physical contact.

Fulham contended that the Recorder imposed a counsel of perfection on Fulham and H.  It could be seen in the judgment where the Recorder said that “It does not matter that … in a general sense it can be said the tackle was made in a fast moving heat of the moment context.”

Saying elsewhere in the judgment that “football is a contact game” and citing the judgment of Tuckey LJ in Caldwell that no liability would attach for errors of judgment, oversights or lapses of which a participant might be guilty in the context of a fast-moving contest, could not remedy the problem with that sentence.

There was a further aspect in relation to this ground where it was said in the judgment “H could aim for the ball and I accept he did, but he could not be sure what else he might contact or do, or, being a large man, with what force he might do it.”

Although appellate courts must be cautious not to pick apart judgments so as to take a word or phrase out of context, there was a material error. It purported to set a standard for reckless or quasi-reckless behaviour in the context of professional football which was far below what was needed to establish such liability.

Ground four alleged that the Recorder failed to take into account all the contemporaneous evidence.  It was not disputed that the tackle happened in full view of a fully FA-accredited referee, that the referee did not consider a foul had been committed, that no sanction was issued in the form of a yellow card or a red card, that there was no adverse reaction from the spectators or coaching staff, and that prior to the issuing of the claim some years later after the incident, no complaint was made of the tackle and no disciplinary action or investigation instigated in respect of it.

The Recorder erred in law in affording no weight at all to the fact that the referee did not award a foul. He merely found that “it was a foul which the referee should have penalised. That he did not is a puzzle but not a sufficient one to negative my views about what actually happened.”

Accordingly, the Recorder failed to have any regard to the important policy consideration in cases of this kind which required the court to pay proper regard to the decisions of the officials tasked with administering the Laws of the Game.  Whilst that was not determinative, it was a matter to be engaged with by the court in determining whether actionable negligence had occurred.

 

Case cited in Judgment:

Condon v Basi [1985] 1 WLR 866
Rootes v Shelton [1968] ALR33
McCord v Swansea Football Club and anor [1996] UK 409
Elliott v Sanders and anor (10 June 1994 unreported)
Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054; [2022] PIQR P6
Pitcher v Huddersfield Town Football Club (HQ 0005953 – QBD transcript 17 July 2021 unreported)
Tylicki v Gibbons [2021] EWHC 3470 (QB)
Flannery and anor v Halifax Estate Agents Ltd [1999] 1 WLR 377