Revenge tackles?

The law of negligence as a tool to safeguard players.

In the course of playing sports, players are bound to have physical contact with one another. (Unless of course, one is playing chess, or darts, or maybe tennis). In fact, in most sports, physical contact with other players is the only way to compete. By the time one is engaging in these kinds of sports, one knows that at some point they will suffer some type of injury. The very act of engaging in the sport poses a risk to the health of the player. In law, this act of willingly engaging in a sport that can potentially cause you harm is referred to as volenti non fit injuria. This doctrine is to the effect that if one willingly places himself or herself in a position where harm might result, knowing that some degree of harm might result, they cannot bring a claim against the other party under tort law, and more specifically under the law of negligence.

However, what happens when your opponent intentionally causes injury to you, or when the opponent willfully engages in an act that exposes you to harm or injury? The courts in the UK have been vigilant in addressing such cases. One must note a major element of intention on the part of the perpetrator that negates the effect of the doctrine of volenti non-fit injuria. For instance, in Tylicki v Gibbons[1], where it was found that Gibbons deliberately put Tylicki in harms way, by engaging in riding that went beyond the normal occurrence of error of judgement or a lapse in skill in the course of the activity. The court observed that found the defendant had fallen below the standard of a reasonably competent jockey. Of course, reasonable competence would ordinarily be assessed based on the particular circumstances of each case such that any act beyond this standard constitutes reckless disregard for the welfare of other players. Even though the element of intention may not be apparent, the same can be inferred from the actions of a defendant.

Similalry in the more recent case of Czernuszka v King[2], the court held a rugby player liable in negligence for a tackle which seriously injured her opponent’s spine, leaving her paraplegic. In this case, the two players were playing rugby union at developmental level. The tackle occurred as the claimant, who was playing scrum-half at the back of a ruck, bent down to pick up the ball. However, before she could pick it up, and while she was in a vulnerable position with her neck and spine exposed, the defendant put her bodyweight forward and down onto the claimant, forcing her onto the ground with her back bent, and thereby fracturing her spine. After a review of the video footage, the judge found that the defendant had failed to exercise such a degree of care as was appropriate in all the circumstances.

However, it must be noted that foul play that is seen in ordinary sports cannot be equated to negligence. The assessment of liability in negligence will determine whether the action has fallen below the acceptable standard of play. Consequently, in sports negligence, context is key. In addition, different sports are played in different ways. Thus, the accepted level of foul play in one sport may not necessarily be applicable to another sport.

It must also be noted that the fact that a referee or umpire does not call a foul or fail to take any action does not mean liability cannot be established against a player (as was the case in Tyckli (supra). However, the court would be called upon to take this fact into consideration in ascertaining liability.

Safeguarding

Regardless of whether a case is filed or whether a party is found negligent or not, such reckless disregard for other players more often than not result in great harm to players. In Czernuszka, as well as Tylicki, the Claimants became paraplegic. Also, in Fulham, the ankle injury suffered by Jones caused him his entire career as a professional footballer. In addition, intentional injuries only lower the level of the competition, and contribute to unfairness which goes against the spirit of sports competition. Indeed, while sportsmen and women always want to compete, they do not want to do that at the expense of their lives and/or good health. For competitive players, it matters not the compensation given by the courts, for it would not be anywhere near the extent of loss of the opportunity of playing again, some for a lifetime. As such, judgements should be sufficiently deterrent in terms of the level of compensation to ensure that players are demotivated from engaging in dangerous tackles.

The other point to observe is that the above mentioned cases have been decided by the courts in the UK. There is yet to be jurisprudence in Kenyan courts regarding negligence in sports, and these decisions would effectively set the standard for such cases.

[1] Tylicki v Gibbons [2021] EWHC 3470 (QB) [2] Czernuszka v King [2023] 2 WLUK 373