PROVING THINGS 232: “THE RULES OF THE GAME OF ASSOCIATION FOOTBALL HAVE NOT BEEN DRAFTED WITH CIVIL LIABILITY IN MIND”: APPEAL LEADS TO OVERTURNING OF JUDGMENT ON FOOTBALLER’S NEGLIGENCE: A REMATCH IS ORDERED

In Fulham Football Club v Jones [2022] EWHC 1108 (QB) Mr Justice Lane allowed an appeal in a case where a footballer had found to be negligent when tackling an opponent.  The judgment considers the issue of liability in the context of an error in sport and the stage at which such an error becomes negligence.

“the Rules of the Game of Association Football have not been drafted with civil liability in mind.”

THE CASE

The claimant was seriously injured in a football match, be brought proceedings alleging that the Fulham player who had tackled him had been negligent. At trial the recorder found in favour of the claimant. The defendant appealed arguing that the recorder had applied the wrong test and had misapplied the evidence.

Mr Justice Lane allowed the appeal, however it held that there would need to be another trial.

THE LAW AS TO NEGLIGENCE IN SPORT

The judgement contains a detailed assessment of several earlier cases in relation to the duty of care and negligence in the context of participating in sport.  Best summarised here:-

1. 1. In Tylicki v Gibbons [2021] EWHC 3470 (QB), HHJ Karen Walden-Smith, sitting as a judge of the High Court, found in favour of the claimant who had been catastrophically injured as result of a collision between his mount and that of the defendant, during a race at Kempton in October 2016.

1. The judge noted, at paragraph 30 of her judgment, that a distinction falls to be drawn in the case of sporting contests, between conduct which is properly to be characterised as negligent, and thus sounding in damages, and errors of judgment, oversights or lapses of attention which do not sound in damages. 

THE COURT OF APPEAL OVERTURNING OF THE FIRST INSTANCE JUDGE

The Court of Appeal overturned the judgment at first instance. However it was held that this did not lead to judgment for the defendant. There needed to be a new trial.

1. 1. The recorder found that it “does not matter that Harris did not intend to injure the claimant or that in a general sense it can be said the tackle was made in a fast moving heat of the moment context”. It was “a serious error of judgment to make the tackle in the way he did, going beyond the kind of mis-judgments, mis-timings and relatively minor or momentary lack of care which all players have to accept as an inherent risk of the game not amounting to negligence“.

1. 1. The recorder concluded that what Mr Harris did:-

“… 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. I bear in mind the risks of making judgments in hindsight, but that is not the same as carefully studying the evidence from witnesses, photographs and coming to a decision that was not made on the day. I also bear in mind the high standard of liability referred to in the authorities and that I am rejecting Mr Cumming’s view, though of course accepting Mr Hackett’s. What Mr Harris did was a breach of his duty to take the reasonable care for another player’s safety that was appropriate in all the circumstances of a professional game of football. He was therefore guilty of negligence and therefore the defendant is vicariously liable for that negligence and for the injury to the claimant and its consequences”.

F. THE HAND-DOWN

1. 1. The judgment was handed down on 13 October 2021, Mr Krsljanin applied for permission to appeal on four grounds. Mr Krsljanin draws attention to the following passage from the recorder’s decision on permission:-

“ii) As to not perhaps analysing bit by bit why I decided in favour of one expert, Mr Hackett rather than Mr Cummings, I felt as I stated in my judgment, that having set out the various contentions, having in particular set out that on looking in detail and time after time again at the video evidence, I was bearing in mind the various other evidence, including the experts’ ways of analysing it and what they said as experts they could or could not see in it and, in the end, as I had to judge, formed my own view bearing all that in mind and I feel that what I have said as to why I have reached my conclusions set against my setting out of what, in particular, Mr Cumming said is sufficient to analyse why, as I have said, towards the end of my judgment, I reject his view. It is not so much because I think he is wrong. It is because I conclude otherwise on the evidence as a whole.

iii) As to not taking into account contemporaneous reactions, I adopt what Mr Arentsen has just said. I said why I was not persuaded in the opposite direction by what the referee did or did not do.

iv) As to what the other players or crowd of spectators did or did not do, I do not feel that was weighty enough in any way to draw any conclusion and so I did not take it into account in the end.”

G. DISCUSSION

Ground 1

1. 1. Ground 1 contends that the recorder erred in failing to apply the test set out in the authorities concerning the standard for liability for personal injury claims in the professional sports context. This requires the court to apply a two-stage analysis. First, it must be determined whether the defendant breached the Laws of the Game and, second, it must then be determined whether there was negligence (which is set at a materially higher standard than the Laws of the Game). Fulham contend that the recorder did not adopt this approach and as a result his conclusion is wrong in law.

1. 1. In advancing Ground 1, Mr Krsljanin criticised paragraph 56 of the recorder’s judgment. It was, he said, simply wrong for the recorder to give a self-direction that actual serious foul play, “that endangers the safety of an opponent or uses excessive force or brutality” would “very likely amount to negligence”. Mr Krsljanin submitted that what the recorder did was to omit the second stage of the inquiry demanded by the judgments in Caldwell, which requires more than a finding that the Rules of the Game have been breached.

1. 1. Mr Arentsen submitted that there was, in fact, only a single question; namely, whether the person concerned had been guilty of actionable negligence. The last sentence of paragraph 56 of the judgment was in the nature of an obiter remark by the recorder, who had earlier noted correctly the legal submissions made to him on this matter.

1. 1. I am far from satisfied that the case law invariably requires the application of a mechanistic two-stage test of the kind for which Mr Krsljanin contends. One does not see it in, for example, the judgment of HHJ Karen Walden-Smith in Tylicki , which Mr Krsljanin relies upon (albeit for a slightly different point).

1. 1. I am, nevertheless, satisfied that paragraph 56 of the recorder’s judgment contains a material misdirection. The error lies in the recorder treating 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 Mr Harris was guilty of negligence.

1. 1. I do not consider there was anything in the submissions advanced by Mr Arentsen that led to this error. On the contrary, at paragraph 48 of the judgment, the recorder noted the submissions for Mr Jones as being that Mr Harris’s “tackle was serious foul play within the meaning of the laws and Harris’s conduct was a breach of the duty of care owed to a fellow player”.  (my emphasis)

1. 1. The record of proceedings reinforces this. At page 257 of the trial bundle, Mr Krsljanin is recorded as saying that:-

“The standard for civil liability is set higher than the Laws of the Game. The Laws of the Game govern how a game is played and within the scope of those laws and the bodies that govern the game there are certain sanctions that can be imposed, of course the yellow card, the red card, the sending off. What is imposed within a finding of civil liability is something much more serious, as your honour will appreciate. “

1. 1. Mr Krsljanin then went on to say it was for this principled reason that if the recorder could not be satisfied that there was a breach of the Laws of the Game, there could not be negligence. At that point, Mr Arentsen intervened to say that “I don’t mean to interrupt my learned friend at all, but I don’t think that there is anything at all between us in relation to that, if it assists”.

1. 1. As we have seen, Caldwell was a case where the race stewards had found the defendant guilty of careless riding. That finding of carelessness, however, in the context of the rules of racing was not determinative of liability for negligence.

1. 1. The laws of horseracing deal with wrongs of different degrees of seriousness. The judgment in Tylicki refers to ‘dangerous riding’, which is found by stewards only in extremely rare cases, estimated as one every 10 years.

1. 1. The laws of Association Football likewise involve a hierarchy of playing offences. Careless behaviour attracts a direct free kick or penalty kick. Such behaviour is commonly referred to as a “foul”. A reckless offence occurs when a player acts with disregard to the danger to, or consequences for, an opponent. The player concerned must be cautioned, which currently means the referee showing a “yellow card”. Using excessive force is where a player exceeds the necessary use of force and endangers the safety of an opponent. For this, the player must be sent off (i.e. shown a “red card “). Leaving aside the use of “or” as opposed to “and”, the definition of “serious foul play” deals with the “red card” offence in the case of tackles or challenges.

1. 1. Mr Krsljanin submitted that the definition of “serious foul play” contains no mental element; it is, in his words, entirely concerned with the “actus reus“. A player could, accordingly, be sent off for serious foul play even though they acted innocently.

1. 1. I am not sure this is entirely right. Given that “yellow card” conduct is specifically described as reckless, with a player acting in disregard of danger to consequences for an opponent, it is plain that, at this point, the Laws of the Game are concerned with establishing a player’s state of mind, however difficult that might be for a referee during a match. The more serious “red card” breaches appear, therefore, to be aimed at conduct which is judged to be at least reckless and may be deliberate.

1. 1. Having said this, it seems to me that there is little to be gained by this court pursuing such a line of inquiry. This is because I agree with Mr Krsljanin’s overarching submission that the Rules of the Game of Association Football have 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 is 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 are (or should be) the subject of sending-off of the player concerned does not mean that any sending-off is, without more, very likely to amount to actionable negligence. In this regard, I take judicial notice of the fact that red cards are exhibited by professional referees much more frequently than racing stewards make findings of dangerous riding.

1. 1. The real problem, therefore, with the self-direction in paragraph 56 of the recorder’s judgment is that 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 of whether, in all the circumstances, Mr Harris’s tackle was not only a breach of the Rules of Game but negligent.

1. 1. The result of this error can most clearly be seen in the following passage from the concluding paragraph 66 of the judgment:-

“I consider what Harris did was a lunge within the meaning of the definition of serious foul play in paragraph 18 above and in any event, it endangered the claimant’s safety. It does not matter that Harris did not intend to injure the claimant or that in a general sense, it can be said the tackle was made in a fast moving heat of the moment context”.

1. 1. On the contrary, as Mr Krsljanin submitted, it matters very much whether or not the tackle was made in such a context.

1. 1. Ground 1 is made out.

Ground 2

1. 1. Ground 2 complains that the recorder failed in his duty to give adequate reasons, in that he failed to give any reasons why he rejected outright the evidence of Mr Cumming, Fulham’s expert, who is 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. At the hand-down of the judgment, the recorder was invited to give reasons for his dismissal of Mr Cumming’s evidence but declined to do so, stating that his reasoning was clear from his judgment. However, Fulham contends that the judgment does no more than summarise Mr Cumming’s evidence, and the arguments of the parties on that evidence, before the bare conclusion: “I am rejecting Mr Cumming’s view although of course accepting Mr Hackett’s”. This was reflected in the recorder’s remark at the hand-down hearing that “I felt that what I said, in the light of my summary of the expert evidence was clear. It’s not so much because I think Mr Cumming is wrong, but I considered the evidence as a whole and concluded it was a serious error of judgment”.

1. 1. In support of Ground 2, Mr Krsljanin relies upon the judgment of the Court of Appeal in Flannery and another v the Halifax Estate Agents Ltd. [1999] 1 WLR 377. In that case, the plaintiffs instructed the defendants, a firm of surveyors, to make a valuation of a first-floor flat which they subsequently purchased on the strength of the survey. The plaintiffs later discovered damage to the flat and brought a claim in negligence against the defendants. At trial, the judge heard evidence as to the cause of the damage from each side’s expert valuer and expert engineer. The judge preferred the evidence of the experts called by the defendants and dismissed the claims. The plaintiffs complained solely that the judge had failed to give reasons for that decision.

1. 1. Allowing the appeal, Henry LJ, giving the judgment of the court, held that the judge was under a duty to explain why he had reached the decision. Instead, all he said was “I prefer the expert evidence that was given for the defendants to that which was given for the plaintiffs”. Although Henry LJ held that it was possible, indeed likely, that the judge had accepted an attack which had been mounted on the plaintiffs’ expert evidence, he held that “this court cannot properly infer that. To do so would be to guess, and that the court cannot do”. The requirement to give reasons is a function of due process. It also “concentrates the mind”, in that if reasons are given the resulting decision is more likely to be soundly based on the evidence than if it is not.

1. 1. Mr Krsljanin placed particular emphasis upon the passage of Henry LJ’s judgment in which he stated that:-

“Where the dispute something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation, whereas here there is disputed expert evidence; but it is not necessarily limited to such cases”.

1. 1. In the present case, I was taken to passages in the transcript of the hearing (beginning at page 178) in which Mr Hackett and Mr Krsljanin engaged in what the latter described as intellectual exchanges, during cross-examination. The exchanges were concerned with the stark contrast between the evidence of Mr Cumming, who considered the referee had been right not to award even a foul in respect of Mr Harris’s tackle, and Mr Hackett, who considered that the tackle amounted to serious foul play.

1. 1. Mr Krsljanin also relied upon the reason given by the recorder on 13 August 2021, for refusing permission to appeal; namely, that it was “not so much because I think [Mr Cumming] is wrong. It is because I conclude otherwise on the evidence as a whole”.

1. 1. So far as that last submission is concerned, one must be very cautious about treating ex tempore reasons for refusing permission to appeal as being in some sense part of the judgment that is under challenge. I shall return to the issue of whether the recorder thought Mr Cumming was “wrong”, when dealing with the nature of the order that follows my judgment. So far as the last quoted sentence is concerned, Mr Arentsen submitted that it was plain, from reading the judgment as  a whole, why the recorder had rejected the evidence of Mr Cumming. Once the recorder had accepted that Mr Hackett was right about Mr Harris having leapt into the air, then even Mr Harris accepted this would be dangerous, and that he would be out of control (paragraph 22 of the judgment).

1. 1. I do not consider that what the recorder said about the evidence of Mr Harris at paragraph 22 of the judgment blunts the criticism contained in ground 2. Although what the player thought the position might be in that hypothetical context was plainly relevant, it cannot be a reason for rejecting the expert view of Mr Cumming. Even if it could be such a reason, then it at least needed to be expressed in the judgment. Mr Harris was, in any case, not conceding that, if he had leapt in the air, that would be actionable negligence on his part. Although both expert reports were, understandably, written by reference to the Laws of the Game, the evidence of Mr Cumming fell to be analysed as part of the overall question of whether Mr Harris was guilty of actionable negligence.

1. 1. It seems to me that the reason why the recorder fell into error in his treatment of the expert evidence of Mr Cumming was that, despite what he said at paragraph 59 of the judgment about the evidence of experts being able to see and interpret things that the recorder could not, and that what the recorder provisionally thought about the video might be overweighed by other evidence and considerations, the following paragraphs in the judgment simply show the recorder forming his own view about the video evidence; and concluding 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 a legally flawed one.

1. 1. Ground 2 accordingly succeeds.

Ground 3

1. 1. Ground 3 contends that the recorder erred in law by expressly refusing to take into account the context of Mr Harris’s tackle and the realities of the playing culture of professional football, which is a fast-paced, competitive game necessarily involving physical contact. Fulham contends that the recorder instead analysed the tackle in a vacuum, with the benefit of hindsight, thereby imposing a counsel of perfection on Fulham and Mr Harris. This can be seen from paragraph 66 of 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”. I have already referred to this criticism, in the context of Ground 1.

1. 1. Mr Arentsen drew attention to the fact that, at paragraph 56, the recorder expressly acknowledged that “football is a contact game”, and that he cited the judgment of Tuckey LJ in Caldwell that no liability will attach for errors of judgment, oversights or lapses of which a participant might be guilty in the context of a fast-moving contest.

1. 1. I am in no doubt that this part of paragraph 56 cannot remedy the problem with the sentence “It does not matter that… fast moving heat of the moment context” in paragraph 66. For the reasons I have given, it does matter.

1. 1. Mr Arentsen attempted to draw support from the judgment in Tylicki. The course of action leading to the collision and injury in that case extended over several seconds, during which there had been an earlier collision between the horses. This was a crucial element in the judge’s conclusion that Mr Gibbons had had a “reckless disregard for Mr Tylicki’s safety”.

1. 1. Mr Arentsen said that, in the present case, there had similarly been a period leading up to Mr Harris’s tackle during which Mr Harris had, in effect, been following Mr Jones, both towards the Swansea goal and towards that of Fulham. Mr Harris had tracked back and should not have made the tackle. In all the circumstances, this was not a split-second mis-judgment or momentary lack of care.

1. 1. I fully accept that is a finding which the recorder could have made. It is, however, plain from his judgment that he did not, in fact, make it. I do not consider it is a finding which can be properly inferred.

1. 1. There is a further aspect to Ground 3. I have set out paragraph 65 of the judgment. This contains the sentence: “Harris 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.” Mr Krsljanin submitted that this sentence imposes an extraordinarily onerous burden on a football player. If allowed to stand, it would mean that a player could never make a tackle in football match where they “could not be sure” that they would not make contact with another player.

1. 1. Appellate courts must be cautious not to pick apart judgments of first-instance decision makers, so as to take a word or phrase out of context. Even applying that degree of caution, however, I am satisfied that paragraph 65 contains a material error. It purports to set a standard for reckless or quasi-reckless behaviour in the context of professional football, which is far below what is needed to establish such liability.

1. 1. Ground 3 succeeds.

Ground 4

1. 1. Ground 4 contends that the recorder erred in law by failing to take into account all the contemporaneous evidence. It is said to be 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 gave no weight at all to these factors, as confirmed by his comment at the hand-down hearing that “I considered the weight to be given to the referee and the crowd’s reactions… I set out in my judgment why I didn’t take it into account”.

1. 1. Ground 4 is rightly described by Mr Krsljanin as one of mixed fact and law. It is trite that a judicial fact-finder is entitled to decide what weight to ascribe to any particular evidential item. It is not for this court to substitute its own view of the weight that it would have accorded to that item.

1. 1. Nevertheless, I find that 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”. The recorder accordingly failed to have any regard to the important policy consideration, in cases of this kind, which requires the court to pay a proper regard to the decisions of the officials tasked with administering the Rules of the Game. The fact that such officials have decided to take no action, or relatively minor action, is, of course, not determinative: see Tylicki. It is, however, a matter to be engaged with by the court, in determining whether actionable negligence has occurred.

1. 1. In the present case, the recorder was faced with the striking scenario in which a professional referee, with an unarguably clear view of the tackle, did not award a foul, let alone show Mr Harris a red card. That feature was part of the evidential landscape which the recorder was required to traverse. Instead, he took a different path and, having reached his destination, merely reduced the referee evidence to “a puzzle, but not a sufficient one”. The recorder’s hand-down statement that he was “not persuaded in the opposite direction by what the referee did or did not do” added nothing to the judgment.

1. 1. What, though, of the lack of reactions from other players and the spectators? I am not satisfied that the recorder fell into error on this issue. This is because the joint statement of the experts, mentioned at paragraph 33 of the judgment, says in terms that they “saw no indication of any reaction by the spectators near to the incident but this they say would be normal”. Surprising though that may seem to a lay person, this undisputed evidence negated the relevance of any lack of reaction from the spectators, such that I cannot conclude the recorder erred in refusing to give it any weight.

1. 1. This leaves the lack of reaction from players. Although the experts said nothing specific about them, any failing by the recorder to have regard to the players’ lack of reaction is rendered irrelevant, in view of my finding that Ground 4 is made out for the much more significant reason relating to the referee evidence.

H. OUTCOME

1. 1. Accordingly, all four grounds of appeal succeed. The recorder’s judgment must, therefore, be set aside.

1. 1. Should this be the outcome, Mr Krsljanin submitted that the proper course was for me to enter judgment in favour of Fulham.

1. 1. In support of this submission, Mr Krsljanin emphasised the recorder’s statement at the hand-down that, although he had rejected the evidence of Mr Cumming, this was “not so much because I think he is wrong”. Mr Krsljanin argued, therefore, that on the facts, Mr Jones had failed to make good his case. The joint statement of the experts contains a passage in which they agree that refereeing in many instances is subjective and that different referees could have different views of the same incident. If Mr Cumming was not “wrong”, in the view of the recorder, then both his interpretation of Mr Harris’s tackle and that of Mr Hackett were valid views. Mr Jones, had not, therefore, proved on balance that the tackle was a breach of the Rules of the Game. This meant that his claim could not succeed, on the basis of the case law; in particular Caldwell.

1. 1. Mr Arentsen said that, if this was Fulham’s stance, then it was noteworthy that Mr Krsljanin had not sought summary judgment. Mr Krsljanin countered by pointing out that the position reached was by reference to the facts, as found in the judgment and in the hand-down comments of the recorder.

1. 1. I find that Fulham’s request for judgment to be entered in its favour must be rejected. The comment of the recorder at the hand-down hearing about Mr Cumming not being “wrong” is not to be treated as part of his judgment. It is not a finding, or even confirmation of a finding, that Mr Cumming’s evidence was not being rejected. On the contrary, the recorder held in his judgment that he was rejecting that evidence (albeit for reasons which I have found to be legally flawed). Accordingly, there is no scope to pray in aid the joint statement concerning refereeing being in many instances a subjective matter. Furthermore, Mr Hackett’s evidence, properly read, was that he thoroughly disagreed with Mr Cumming, beyond the points described in the joint statement. This is evident from the recorder noting at paragraph 37 of the judgment that Mr Hackett “was surprised and disappointed with” Mr Cumming’s view that the tackle was not a foul.

1. There will, accordingly, need to be a new trial.