Tuesday, June 15, 2004

Sports Personal Injury

This was the introduction to 'Sports Personal Injury' published by Sweet and Maxwell in 2002 and written by myself, Dominic Adamson and Stephen Cottrell.

“Games might be and [are] the serious business of life to many people. It would be extraordinary to say that people could not recover from injuries sustained in the business of life, whether that was football, or motor racing, or any other of those pursuits which were instinctively classed as games but which everyone knew quite well to be serious business transactions for the persons engaged therein.” Swift J, Cleghorn v Oldham [1927] 43 TLR 465
Some would say that sport is a reflection of life itself. For some it is a way of life, for others a means of earning a living. For others it is a way of a way of keeping fit, making friends, competing. Then there are the arm-chair sportsmen who enjoy nothing better than kicking back on a Summer’s day and watching the Aussies get thrashed at cricket (well, we can dream) or getting down the pub and singing for England during the World Cup. For others it may be cheering on Ellen McArthur as she arrives back from another round the world yacht race or Sally Gunnell down the home straight of an Olympic final. Whatever the motivation, it is clear that sport permeates into all aspects of peoples’ lives.

Sport, in itself, is enormously difficult if not impossible to define. The European Sports Charter defines sport as:

“all forms of physical activity which, through casual or organised participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels.”

Such a sterile definition is almost to miss the point of sport for many people as one of the many outlets for their passions. Perhaps, it is better to look at its origins instead. The word itself derives from the French determined Middle English verb sporten, to divert and also the Latin term desporto, literally ‘to carry away’. The emphasis is therefore on its being a distraction, something that gives pleasure (see ‘Sports Law’ by Gardiner et al (Cavendish, 1998). The nature of sport has changed down the ages deriving no doubt originally from the hunting of wild animals and moving on to a facet of training for war as seen in the spirit of the original Greek Olympics held in 686BC. Going even further back in time, the earliest evidence of boxing’s existence is recorded in Egyptian hieroglyphics around 4000BC.

From these ancient beginnings sport has diversified like any self-respecting product to suit the demands of almost all those undertaking any form of physical activity from kicking a piece of leather around a grass field to riding the ocean waves. Of course, this has also led to the invention of what might be thought of as the more unusual sports such as bog-snorkling whose world championship is held at Llanwrtyd Wells in Wales each year or snail racing whose world record is held by ‘Archie’ who completed the requisite thirteen inch course in two minutes and twenty seconds.

Thankfully, for the purposes of this book it is not necessary to enter the controversial debate as to what exactly is or is not a sport. Suffice it to say that the authors have chosen what they consider to be either mainstream sports or sports where there is a risk of injury or occasionally sports which merely reflect their own passions. If there are any tiddly-winks players out there having suffered personal injuries from the pursuit and who think that it should have been included we should be happy to consider what they have to say for the second edition of this work.

Perhaps one of the main attractions of sport is that it reflects the freedom of the human spirit. Free from work and everyday worries. Free from politics, free from government. No wonder people always turn to the back page of a newspaper first when the front page is full of bad news.

However, there are other perspectives on sport which suggest that it is devisive, reinforcing the principle of winner takes all. Others suggest that sport in some way perpetuates a patriarchal society. From this perspective, it is argued that sports are “gendered” activities. As Coakley, J, states in ‘Sport in Society: Issues and Controversies’ (1994):

“Feminists describe sports as ‘gendered’ activities. The fact that organised sports were developed to emphasise competition, efficiency and performance ranking systems and to devalue supportiveness and caring contributions to the ‘gendered’ character. To say that sports are ‘gendered’ activities and to say that sports organisations are ‘gendered’ structures means that they have been socially constructed out of the values and experiences of men.”

Whatever perspective one takes, the question arises as to what has the law and more importantly those damn lawyers, got to do with sport? As with all aspects of human life, not even sport can exist in a legal vacuum and in the last few years the importance of the law in sport has become increasingly apparent. This may in part be due to the efforts of a few frustrated lawyers who failed to achieve their dreams of becoming one of the world’s best footballers and want at least to be involved on the touchline (the authors of this book, for example). Perhaps most importantly, it is due to the increasing commercialisation of professional sport.

However, the regulation of sport is nothing new. The most immediate form of regulation can be found in the rules usually found associated with each sport. Generally, these are for either regulating the dynamics of play or for ensuring safety. The latter was clearly the aim in the first rules set down to govern boxing in 1743 (pre-dating those codified under the auspices of the Marquis of Queenbury in 1867) and written by Jack Broughton who two years earlier had killed George Stevenson in a prize-ring in Tottenham Court Road, his patron the Duke of Cumberland a horrified spectator. They provided:

“That a square of a Yard be chalked in the middle of the Stage; and on every fresh set-to after a fall or being parted from the rails, each Second is to bring his man to the side of the square and place him opposite to the other and till they are fairly set-to at the Lines, it shall not be lawful for one to strike at the other.”

The late nineteenth century saw the formal codification of many sports. As time has gone on these rules have become ever more sophisticated, no doubt in order to try and close loop-holes which players down the ages have tried to exploit or sometimes to increase the safety of the particular sport.

In conjunction with these developments, sports have always had to work within the law of the land and often came to be specifically regulated by the state. Sometimes this has been to regulate safety and sometimes to preserve public order since games could often get out of hand. R. Brasch provides the following example of thirteenth and fourteenth century problems in ‘How Did Sports Begin?’:

“In a ball game, probably football, at Ukham Northumberland on Trinity Sunday 1280, Henry de Ellington was accidentally killed when, jostling for the ball, he impaled himself on another player’s knife. But ball games could be dangerous even without knives. Three years earlier a 10 year old boy killed a 12 year old companion by hitting him on the ear after a clash of sticks in a hockey game…In 1303 an Oxford student from Salisbury was killed – allegedly by Irish fellow students – whilst playing football in the High.”

Eventually, in 1314 the Lord Mayor of London issued a proclamation on the King’s behalf forbidding rumpuses with large footballs in the public fields. So, too, in answer to political concerns, in 1285, “a statute of Edward I referred to “fools who delight in their folly” and banned tournaments and swordplay in London as well as prohibiting the teaching of swordsmanship in the city on pain of 40 days’ imprisonment.

State intervention has not only been directed at the players in this regard. A recent example of this followed the Hillsborough disaster and the Taylor report which examined it. A number of specific statutes have been passed since then dealing ever more stringently with football hooliganism.

On occasions, sport has played host, perhaps unwittingly, to acts which have changed the course of history in some way. Perhaps the greatest example of this was the action of Emily Wilding Davidson on 8 June 1913 when she brought down the horse owned by King George V in the Epsom Derby, Amner, seriously injury its jockey Herbet Jones and ultimately losing her own life in the process. As Dame Christabelle Pankhurst recorded:

“Emily Davidson paid with her life by making the whole world understand that women were in earnest for the vote. Probably in no other way and no other time could she so effectively have brought the attention of millions to bear upon the cause.”

Alongside the direct intervention through statute there has been increasing recourse to the courts in recent years in the sporting arena. In the criminal arena, participants have been made aware that they may end up facing a jail sentence if they go too far during the game. This is illustrated by the three month prison sentence which Duncan Ferguson, a Scottish international footballer received for head butting during a game in 1994. Challenges have also been made in the courts to the decisions of sports’ governing bodies themselves and these are set out in chapters 22 and 23.

Perhaps the major development in this area has been the development of the law of negligence into what had previously been unchartered waters. This has come with the increasing commercialisation of professional sport coupled with the rise in personal injury litigation and has led to numerous sports injury cases in the last few years.

Successful claims have now been made by both participants and spectators for injuries suffered during a game. However, it is not the identity of the Claimants which has caused any surprise but that of the Defendants in many of the recent high profile actions. For example, in Smoldon v Whitworth and Nolan [1997] P.I.Q.R. P133 a referee was help liable for injuries sustained as a result of his negligence. In Watson v British Boxing Board of Control [1999] Times 12 October, Michael Watson succeeded in his claim that the British Boxing Board of Control (‘BBBC’) had been negligent in failing to provide adequate emergency medical facilities at the world middleweight title fight with Chris Eubank.

In addition to these developments, the rise in litigation against schools and local authorities has had a direct impact on their potential liabilities in the sporting context. So, too, with the increasing popularity of extreme sports such as surfing, snowboarding and kite-boarding the potential liabilities of the organisers has increased.

Related to this has been an increase in awareness of the need for insurance. For example, in July 2000, the Sports Minister Kate Hoey signalled her support for the introduction of a compulsory insurance scheme to benefit more than 500,000 amateur footballers. Further, the Football Association announced that it was considering funding a scheme to provide both personal injury and public liability cover for all its 43,000 clubs.

As to the numbers of sporting injuries, the figures speak for themselves. As noted above, a British Sports Council Survey in 1991, Epidemiology of Exercise, into sports related illness concluded that six million new sports injuries required treatment each year. In ‘Sports Law and Litigation’ (CLT, 2000), Craig Moore states that it has been estimated that 19 million sports injuries occur in England and Wales each year, costing some £500 million in treatment and absence from work.

In 1997, Dr Robin Knill-Jones recorded in the British Journal of Sports Medicine (1997):

“Sports related injuries form a significant part of the workload of the National Health Service. Patients with acute injuries account for between 3.9% and 7.1% of total attendance at casualty departments, and a higher proportion of attendance – 28% by children.”

As Jayne Andrews of McGoldricks Solicitors says:

“With number of injuries along with the legal developments and the rise of no win no fee agreements, litigation over sports injuries is only likely to increase in the future.”