Czernuska is the latest of a series of judgments determining whether injuries sustained during competitive sporting fixtures were caused by negligence. This blog considers the general principles and themes on liability that emerge from this kind of litigation by looking at Czernuska v King [2023] EWHC 380 (KB), Fulham Football Club v Jones [2022] EWHC 1108 (QB) and Tylicki v Gibbons [2021] EWHC 3470 (QB).

In all three cases, the claimants sustained severe and life-changing injuries during competitive fixtures: Czernuska, a rugby player in a developmental league game, as a result of a tackle; Jones, a footballer playing for Fulham FC in a competitive under 18’s match, as a result of a tackle; and Tylicki, a professional flat race jockey in a race, as a result of a collision between mounts (horses). The courts’ ultimate conclusions on liability were that in Czernuska, the claim succeeded; in Fulham, their appeal against the first instance finding of liability was successful and the matter was remitted for retrial; and in Tylicki, the claim succeeded.

Whilst the sports and contexts of each injury are different, there are common threads that should be of interest to those specialising in sports litigation and the way in which civil courts assess negligence in the sporting context.

The core law is well settled.

Sportspersons owe a duty of care to one another, as first articulated in relation to spectators in Woolridge v Sumner [1963] 2 QB 43 but since taken to apply equally between participants. The basic test for the standard that is required traces back to Condon v Basi [1985] 1 WLR 866 and Caldwell v Maguire [2001] EWCA Civ 1054.

As put in Condon, “the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiffs injury… Non-compliance with [rules of the game], conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances” [p867 and p868, quoting from and approving the articulation in an Australian High Court decision]. So there is nothing exceptional in the basic test in the context of sporting injuries: like most other areas of negligence, it ultimately turns upon concepts of reasonableness and the particular circumstances of the case which will include the Laws of the particular game.

As it was put in Caldwell, “in an action for damages by one participant in a sporting contest against another participant in the same game or event, the issue of negligence cannot be resolved in a vacuum. It is fact specific” [30]; “a finding that a jockey has ridden his horse in breach of the rules of racing does not decide the issue of liability in negligence” [34].

Recklessness is often a feature of negligence in these claims as it was in Blake v Galloway [2004] 1 WLR 2844 and Tylicki, but is not a separate requirement for a finding of liability. This was the subject of the failed appeal in Caldwell in which the Court of Appeal did not accept that the trial judge had applied recklessness as a requirement: “merely that in practice, given the circumstances, the threshold for liability was high” (as it was explained in Fulham [19]). Tylicki described the relevance of recklessness in the context of horse racing as “while recklessness has been expressly stated not to be the test for a finding of negligence, in effect the evidential burden is such that requires a reckless disregard for the safety of others … in placing the threshold at that high level, regard is being had to all the circumstances of the sport, the inherent dangers and the high degree of competitiveness with a requirement on jockeys to win or be best placed” [75]. Czernuszka articulated the test, factoring in the (ir)relevance of recklessness as being “whether the Defendant failed to exercise such degree of care as was appropriate in all the circumstances … I do not consider that the Court of Appeal, in Blake v Galloway, did, or intended to, lay down any rule or principle that, in the sporting context, the conduct complained of must be reckless or demonstrate a very high degree of carelessness in order for liability to be established” [60].

The laws of the game can inform, but do not determine, whether an action is negligent. Expert evidence, including on the laws of the game, is key.

This is clear from the authorities as quoted above, and the first successful ground of appeal in Fulham was that the recorder erred in law in this part of their analysis. Whilst the appellate court in Fulham did not accept the Defendant Appellant’s argument that a two stage test should have been applied (firstly, were the Laws of the game breached and secondly, was there negligence), it did find that the recorder had misdirected themselves by “closely aligning serious foul play in the Laws of the Game with actionable negligence” which “wrongly reduced the ambit of the inquiry required to answer the question” [64]. The court accepted the Defendant Appellant’s overarching submission that the Rules of the game were not drafted with civil liability in mind and so the ground of appeal succeeded [63]. In Czernuska the court made a similar point:  “the fact that the tackle is illegal for the purposes of the Laws of Rugby is simply one of the factors to be taken into account in deciding whether the Defendant’s conduct was negligent because she had failed to exercise such degree of care as was appropriate in all the circumstances” [43].

Similar to the heavy reliance on medical experts for the breach stage of a clinical negligence claim, having appropriately qualified and experienced expert evidence about the Laws of the particular game is crucial when building or defending a credible case on breach of duty. The courts (or first instance courts) in Czernuszka, Fulham and Tylicki all placed heavy reliance on what the breach experts had to say about the Laws of the game and how they applied in practice, including on the facts of the given case.

Particular thought should be given to ensuring that the instructed expert has experience not only in the relevant sport, but at the relevant level. The extent to which a sportsperson should be required to abide by the Laws of the game, and to which they apply to the game being played, can depend on the level of play as demonstrated in both Czernuszka “at this level and against this opposition the Defendant should have modified her conduct” [61] and also [47]; and Tylicki “a jockey, particularly riding at this very high level, both needs to be, and is, able to assess and re-assess the constantly changing racing conditions” [74].

The individual and team’s general approach to a game can be relevant.

The judgment in Czernuszka most clearly demonstrates this point. The court’s findings of fact at [58] included numerous findings about the Defendant’s team’s approach to the game as a whole, as well as the Defendant’s approach to the game as a whole, as well as the events immediately before and at the time of the incident. These findings were, inter alia, that the Defendant’s team was played in an “inappropriately aggressive and intimidatory manner” with trash talk and intimidation, including specifically by the Defendant towards the Claimant, the Defendant’s team’s approach resulted in the Claimant’s teammates being injured at different times in the match, the Defendant was increasingly frustrated that her tactics of intimidation, using her weight and experience (against the Claimant’s physically smaller and less experienced side) were not working and that this culminated in the incident.

Not all surrounding circumstances will necessarily be relevant and whether they are depends on the facts and the court’s assessment of that evidence. This is well illustrated by Fulham’s fourth ground of appeal which contended that the recorder erred in law by failing to take into account “all” the contemporaneous evidence. The appellate court found there was an error in law by giving “no weight at all” to the fact that the referee did not award a foul for the tackle at the time, noting that whilst the referee’s decision would not be determinative in relation to negligence, it was “a matter to be engaged with by the court” as part of their assessment [89]. The appellate court did not however accept that there was an error in law in not giving weight to the lack of reaction from spectators at the time, in light of the expert evidence on the point [91]. The reaction from nearby spectators in Czernuszka was mentioned in the judgment [17] but did not form part of the court’s reasoning [17].

Video footage is incredibly useful and, if available, will be heavily relied upon.

In all three cases there was video footage available of the moments leading up to and including the incident giving rise to the claim. This is a fortunate quirk of professional and serious amateur sports as often fixtures (and training sessions) are filmed for training or broadcasting purposes. Parties should seek out footage, official or otherwise, in pre or post-issue disclosure requests and in their own investigations. As Czernuska shows, the players’ general approach to the game can factor into the court’s assessment of whether the incident was negligent and so footage from earlier parts of the fixture can be relevant.

In all three cases, footage was analysed by the experts in coming to their conclusions, put to lay and expert witnesses at trial and relied upon heavily by the judges in reaching their findings of fact and application of the law. Stills from the footage even made their way into the reported judgment in Czernuska [16] which shows how practical and useful they are in the analysis of a quick and shifting sequence of events.

The (heat of the) moment can mean any number of things.

The “moment” part of the “heat of the moment” will vary depending on the sport and the level of play. What might be objectively seen by a lay-person as a mere moment or flash of time, will not and should not necessarily be treated as that in the context of negligence. The breach of duty in Tylicki spanned only a few seconds, but the court was clear that “in the heat of a horse race where jockeys are required to make split second decisions and to be able to constantly make assessments and adjustments to their own riding, this was a sufficient period of time for a skilled jockey to make decisions” [90]. This is another point on which expert evidence as to the standard of care, which should include the period of time in which a sportsperson would react, can be crucial.

On the other hand, in some circumstances the heat of the moment can be quite damning as in Czernuska in which the court found that a “red mist” had descended over the Defendant who “was so angry by this time that she closed her eyes to the risk to which she was subjecting the Claimant, a risk of injury which was clear and obvious” [58(x)].

The “heat of the moment” is more commonly put forward as part of a defence as it was, unsuccessfully, at first instance in Fulham. Fulham’s third ground of appeal contended that there had been an error in law by refusing to take into account the realities of “the playing culture of professional football, which is a fast-paced, competitive game”. The recorder, having concluded that the Defendant had lunged in a move of serious foul play according to the Laws of the game which endangered the Claimant’s safety, had 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”, which the appellate court found was wrong [78-79]. The appellate court did not make any findings as to whether the Defendant Appellant had been negligent (instead remitting for retrial), but it remains very much open to defendants to defend on the basis of the heat of the moment in the right case.

Every case is different.

This is always true: courts often choose to remind the reader of this at the end of a judgment and this area of law is no exception. In Tylicki “I stress that the threshold of liability for negligence is a high one and has been determined as made out in this case, on its own particular facts. The finding does not set a precedent either within horse-racing or in sport generally” [95]; and in Czernuszka “I therefore find that in this very unusual and exceptional context … the Defendant is liable” [62].

It is immediately obvious that the standards to be applied to sports negligence claims will differ between sports, the level of seriousness/ professionalism, the type of game, and the actions of the individual players. But it is also clear, from the three judgments discussed above and the wider pool of authorities, that there are consistent core principles that are easily transferred between cases and sports, provided that the particular circumstances of the case and sport are taken into account.

Megan Griffiths is a barrister at 12 King’s Bench Walk and is part of chambers’ sports team.