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Cite as: [2007] CSIH 34, [2007] ScotCS CSIH_34

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Johnston

Lord Kingarth

Lord Penrose

[2007] CSIH 34

A531/03

OPINION OF THE COURT

delivered by LORD JOHNSTON

RECLAIMING MOTION

In the cause

DAVID SHARPE

Pursuer and Reclaimer;

against

HIGHLAND AND ISLANDS FIREBOARD AND ANOTHER

Defenders and Respondents:

_______

Act: H.H. Campbell, Q.C., Heaney; Thompsons

Alt: Miss Milligan; Ledingham & Chalmers

24 May 2007

[1] This is a reclaiming motion at the instance of the pursuer in an action of reparation relating to an injury sustained by the pursuer while playing in a game of football at the premises of the first defenders' training school at Gullane at the end of a course which he, the pursuer, had been attending at that institution. He suffered a severe fracture of the leg in the course of a tackle perpetrated by the second defender at the very early stages of the game, which was between instructors and recruits. It was apparently something of a tradition in respect of the course. While the second defender was a party to the action, no attempt is being made by the pursuer to make a claim against him personally. The action was defended by the first defenders as the employers, and therefore being vicariously responsible for the actions, of the second defender. The issue of vicarious responsibility was live at one stage but is no longer such, nor is the issue of volenti non fit injuria. In addition, damages were agreed at £6,000 and no issue arises in that respect.

[2 ] The Lord Ordinary heard evidence from the pursuer, supported by three other witnesses, a Mr MacLeod and a Mr King who were both playing in the match and a Mr Cameron who was on the touch line. He was also supported by an independent witness who was said to be an expert, Mr O'Donnell, who had considerable footballing experience both as a player and a manager up to semi-professional level. The Lord Ordinary also heard evidence from the second defender personally supported by certain other witnesses, but as will become apparent the evidence of the latter is not material to the issue before us.

[3 ] Having assessed the evidence carefully the Lord Ordinary reached the following conclusions:

"[17] The second defender's demeanour as a witness was consistent with the good opinions of him which the other witnesses expressed and which I have accepted. I considered that he was an honest witness and that he was plainly embarrassed by the criticisms made of him in the pleadings in the present action. For some 10 to 12 years he has played for various teams in the Highland League on a semi-professional basis. He disclaimed any animosity towards the pursuer, whom he had not come across at the Training School. I accept that. He recollected the ball being passed to the pursuer. The second defender was five to ten yards away. He was not at 90 degrees to the pursuer, as other witnesses had said, but "between two and three o'clock". He intended to win the ball, was not going very fast, and he kicked the ball with his right foot. His right leg had straightened out but the studs were not showing. He made contact with the pursuer, but he did not think the contact was too great. His momentum had been under control, the tackle had been controlled, and it was his trailing left leg, not the booted foot of his leading right leg, that had made contact with the pursuer's leg. He was surprised that a fracture had resulted. Immediately afterwards, Mr MacLeod and another player had accused him and asked him if there was a bet to see who would be the first recruit to injure an instructor. A senior instructor had later apologised to him for these and other hostile comments. He had had no intention of hurting the pursuer. That evening he had not wanted to go to the pub with the others because he had been genuinely remorseful about the consequences of the tackle. He had apologised to the pursuer when he returned from hospital.

[18 ] As I have indicated, I accept that the second defender has a good reputation as a skilful football player and that he had no animosity towards the pursuer and no intention of doing him any harm. I am also satisfied that he was honestly convinced that his version of the incident was the correct one, and that he had no intention of trying to mislead the Court. On his version, however, it is impossible to understand how the pursuer came to sustain a serious injury in the form of a fracture some six to eight inches above the sole of his foot. It is the view of the author of the agreed medical report that the fracture was caused by a moderately severe force. That is not consistent with the evidence of the second defender. Several times he was in difficulty when trying to maintain his account in cross-examination. I regret, therefore, that his account, although given in all honesty, cannot be accepted as reliable.

[19 ] Upon the foregoing assessment of the evidence, I find that very soon after the beginning of the match the ball was passed to the pursuer. He passed the ball forward, thus making his first kick of the match. He put his right foot down on the ground. At a time before the pursuer had passed the ball, the second defender ran towards him to tackle him from his right-hand side. The pursuer did not see him approach. The second defender was unable to stop himself from colliding with the pursuer after the pursuer had passed the ball. He struck the pursuer with moderately severe force on the right lower leg with his booted foot. The second defender's leg was straight and the studs of his boot were showing. The second defender did not win the ball. Thus, in my opinion, the pursuer has established his material averments of fact about the tackle. I have limited myself to finding that the second defender struck the pursuer with one foot rather than with two feet, as the pursuer avers, but I do not consider that to be a significant modification of the pursuer's case. I am unable to make any finding, however, as to the interval of time which elapsed between the pursuer's passing of the ball and the second defender's striking the pursuer's leg."

[4 ] No attack was made by counsel for the pursuer in respect of the factual conclusions of the Lord Ordinary both in relation to the event and the demeanour and acceptability of witnesses. In particular, counsel for the pursuer accepted that the version of events placed on Record by the first defenders and the second defender was not proved and that the substance of the pursuer's case in fact as to regards what happened, so far as the Lord Ordinary was so able to conclude, was proved. The reclaiming motion accordingly proceeded against that background.

[5 ] The pursuer's averments of fault on Record were as follows:

"The said accident was caused by the fault and negligence of the second defender for whose actings in the course of his employment with the first defenders the first defenders are liable. It was his duty to take reasonable care for the safety of his fellow participants in said football match and not expose them unnecessarily to the risk of injury. It was his duty in the exercise of said reasonable care to avoid making tackles with both feet. It was his duty to avoid making tackles where the studs of this boots were pointed towards the other player's legs. It was his duty in the exercise of said reasonable care to avoid making high-tackles. It was his duty in the exercise of said reasonable care to make tackles only when it was safe to do so. It was his duty in the exercise of said reasonable care to ensure that any tackles made were safe. It was his duty in the exercise of said reasonable care to avoid causing the pursuer's injury. The second defender knew or ought to have known that to fail in said duties he thereby exposed the pursuer to a material risk of sustaining injury in an accident of the type that did in fact occur. In each of said duties the second defender failed and by his failures caused the pursuer's accident."

[6 ] In addition, the Lord Ordinary made certain assessments and comments upon the evidence of Mr O'Donnell:

"[20] The pursuer led the evidence of a skilled witness, Mr Jim O'Donnell. Mr O'Donnell is a freelance sports writer on football, and has played in and managed football teams since he was a teenager. Most recently he managed the Scottish junior international team from 1999 to 2005. He was not present at the match, and he tried to answer a number of hypothetical questions that were put to him. He said, however, when being questioned about what were described as "the constituents of a reckless challenge", that it was not possible to pass judgment on a tackle without seeing it: "You had to see it in order to make a decision." Whether play was dangerous depended on the circumstances: he could say whether play was dangerous if he saw it. He was nevertheless able to give some relevant information which was not challenged. A player had to be in control of his actions, and when tackling another player had to control his momentum and take due care not to cause injury to others. To have a straight leg was in order if the player was playing the ball; but when his leg was straight, his leg muscles were flexed and thus his foot would cause more damage to an opponent than if his leg was bent. A player who was not in control of his momentum and made a straight-leg tackle with studs up was likely to make a mistimed tackle and cause significant injury to his opponent or even to himself. Mr O'Donnell described a tackle by a player who was not in control of his actions as "a reckless tackle". In particular, a tackle with one straight leg was "reckless" if the player was not likely to make contact with the ball."

[7 ] Against that background the Lord Ordinary reached his conclusions as follows:

"[28] There was nothing particularly stressful about the circumstances in which the second defender made the tackle. The match was a friendly one, and it had just started. There was no emergency or flurry of excitement. I have therefore tried to decide whether in these circumstances a reasonable player would have attempted the tackle undertaken by the second defender or whether it was, to borrow a phrase used by Lord Denning MR in another context, 'out of all proportion to the occasion' (Lane v Holloway [1968] 1 QB 379 at 388). I have also tried to reach a view on the question whether, if a reasonable player would have attempted the tackle, he would have been able to avoid colliding with the pursuer after the pursuer had passed the ball. I have found, however, that there is insufficient factual evidence to enable me to reach a conclusion on these issues. The incident took place some five years ago and must have been over in a very few seconds or, conceivably, less than a second. The various acceptable pieces of evidence do not provide me with enough information to enable me to reach a view, even on the balance of probabilities, on critically important matters. In particular, I have no means of knowing whether a reasonable player would have gone about tackling the pursuer in a different way; or whether it was reasonably likely that the second defender would make contact with the ball; or whether a reasonable player would have been able to avoid colliding with the pursuer after the pursuer had passed the ball. It is for the pursuer to show that the second defender committed an error of judgment going beyond what may reasonably be regarded as excusable; and in the absence of reliable, detailed, skilled and objective eye-witness evidence he has not, in my opinion, been able to discharge that burden. The present case may be contrasted with Condon v Basi, where the court had the advantage of a detailed report and oral evidence from the referee, who was a 'very experienced Class 1 referee'."

[8] Before turning to deal with the submissions of counsel it should be recorded that at the end of the day there was little dispute between the parties on the law to be applied. Reference was made to Wooldridge v Sumner 1963 2 QB 43, Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club 1971 1 W.L.R. 668 and Condon v Basi [1985] 1 WLR 866.

[9] The last case was concerned with injuries on the football field, Wooldridge being concerned with an accident at a horse trial and Wilks at a motor cycle event. However with regard to the issue or test to be applied with regard to the standard of care to be demanded of a participant in a sport which inevitably involves some risk of injury, parties were ultimately agreed that the best analysis of the matter is to be found in an article by Dr A.L. Goodhart from The Law Quarterly Review, Vol.78, at page 490 which is in the following terms in the context of assessing errors of judgment:

"This brief analysis of the various errors of judgment which may arise in the course of a game or competition is intended to make it clear that it is only in regard to the second type of error that there may be a difference of opinion. This difference can best be summed up by asking two questions: (a) Is a competitor to be held liable only in those cases in which he is acting in reckless disregard of the spectator's safety, or (b) Is a competitor to be held liable for an injury to a spectator caused by an error of judgment that a reasonable competitor, being the reasonable man of the sporting world, would not have made? The Court of Appeal has answered (a) in the affirmative on the ground that reckless disregard is an essential element of liability in all cases of games or competitions, but it may be submitted with great respect that (b) is more in accord with the general principles on which the law of negligence is based."

[10 ] In other words the test to be applied in the context of negligence rather than deliberate assault 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. This is not the precise test enumerated in Wooldridge but reflects the other two cases to which reference has been made and we will apply that test in the present case ("the test"), as indeed the Lord Ordinary attempted to do and gives his reasons why he did not find it satisfied.

[11 ] Mr Campbell opened with a submission which was not presented to the Lord Ordinary based on the cases of Ross v The Associated Portland Cement Manufacturers Limited 1964 1 W.L.R. 768 and O'Donnell v Murdoch Mackenzie & Company 1967 S.C. (H.L.) 63. The substance of those decisions, it was submitted, was that where the defenders led no evidence to challenge the evidence of the pursuer on a particular matter critical to the decision of the case the court, following Ross, is entitled to reach inferences on the evidence most favourable to the pursuer and following O'Donnell was more or less bound to do so (per Lord Upjohn at page 71). In this case it was submitted that Mr O'Donnell's evidence was not challenged and was not contradicted positively by any expert evidence led by the defenders. Given that the second defender's version of events had been disproved, accordingly the Lord Ordinary should have drawn an inference most favourable to the pursuer following the evidence of Mr O'Donnell that the tackle in question contravened the test which, it was agreed, should be applied. Mr Campbell submitted that proposition was sufficient for him to succeed.