The area of sports injury claims is an unusual area within the complex world of personal injury litigation. As is the norm in all types of litigation, each incident must be considered on its own facts and circumstances.

Certain questions arise, such as: what is the standard of care owed by one sportsman to another (after all, any sporting activity carries with it a certain degree of risk for those taking part); and who is responsible for a competitor's actions on the field of play?

STANDARD OF CARE

The legal principle in Scotland for this type of case stems from the case of Sharpe v Highland and Islands Fire Board [2007] CSIH 34. This was an action for reparation raised by Mr. Sharpe for injuries he sustained during a traditionally-held football match between recruits and instructors at the end of a 16-week training course with Highland and Islands Fireboard. Mr. Sharpe sustained a severe leg fracture in the course of a poorly-timed, high tackle by one of the recruits. Mr. Sharpe raised an action against the perpetrator of the tackle as well as the Fire Board for being vicariously liable for the recruit's actions.

Mr. Sharpe's action was dismissed at first instance and his subsequent appeal was refused, as the court held that he had failed to discharge his duty to demonstrate that the recruit 'committed an error of judgement going beyond what may reasonably be regarded as excusable.'

The judges hearing the appeal in the Inner House of the Court of Session acknowledged the difficulty in defining the standard of care owed in these types of action.  Lord Johnston summarised the test for negligence as follows:

"…the test to be applied in the context of negligence… is whether or not the competitor in question has committed an error of judgment that a reasonable competitor being a reasonable man of the sporting world would not have made."

WHO IS LIABLE?

Where it is established that a pursuer's injuries have been caused by the negligent actions of a fellow competitor, the question of who is liable arises. The negligent participant may be personally liable, or it might be that the organiser/club could be held vicariously liable for their actions as the wrong-doer's employer.

The leading authority on vicarious liability in England and Scotland is the case of Lister v Hesley Hall Ltd [2001] UKHL 22. In that case, it was held that the determining issue, when seeking to establish vicarious liability, is whether the negligent act from which the claim arises could be considered so closely connected to the employment of the perpetrator that it would be fair to hold the employer responsible.

In theSharpecase, the judge held that, given the Fire Board required the recruit to attend the training course, and it was fair to surmise that they must have expected him to participate in any activities connected to the course, and that the recruit's involvement in the match was so closely connected to his employment with the Fire Board, it would be fair and just to have held them vicariously liable for his actions during the match.

There are several categories of people/bodies who may owe a duty of care to a variety of people in these scenarios. Organisers, occupiers and referees may owe a duty of care to participants (although with regards to referees, there is a high threshold for this and will only apply if the referee has failed to apply the laws of the game in a reasonable manner). Equally, the organisers, occupiers and the participants themselves may owe a duty of care to spectators. Lastly, participants may owe a duty of care to their co-participants.

In some cases, it could be that there is liability could be shared between the occupier and a co-participant (such as in the recent case of Anthony Phee v James Gordon and Niddry Golf Course).

It is clear that establishing liability in a sporting injuries action will be tricky, not least because different sports vary in nature so greatly from each other that it would be impossible to establish an all-encompassing test. What may be considered reckless behaviour in one sport may be classed as entirely appropriate in another. Following the Sharpe case, it appears that any allegedly negligent actions will be measured against the standard of skill which might be expected of a reasonable sportsman in that particular sport.