Compensation claims for injuries incurred during sporting events can give rise to difficult issues on liability, but can also raise issues about indemnity under personal liability insurance cover (for example cover under the legal liabilities section of a buildings or contents policy).
Take for example an incident reported in the press this week, where an amateur footballer was jailed for a year for deliberately breaking an opponent’s leg in an intentional “long jump” tackle.
The player was convicted of assault causing grievous bodily harm. Assault is a tort as well as a crime, so his victim would have an unanswerable case to sue for compensation for his injuries (which were apparently severe enough to leave him unable to work).
However in this extreme scenario, even if the offending player had legal liabilities cover, it is very unlikely that indemnity would be available to him under the policy. Most policies of this type cover “accidental” injury only – meaning there is no cover for injuries that are caused deliberately.
This issue around policy indemnity, when coupled with the liability tests that the Courts will generally apply when one participant in a sport has been injured by another – can lead to pitfalls for Claimants and insurers alike.
The difficulty for Claimants is that not all injuries caused to one sportsperson by another will give rise to a valid compensation claim. This is particularly the case in contact sports, where it is expected that participants will try to physically tackle one another as part of the game.
The Courts have regularly ruled that participants in contact sports have to accept a degree of risk of injury. As a consequence, if an injury arises because of an error of judgement on the part of another participant – for example a mis-timed tackle – then the person causing the injury will not be liable for it. Instead, the injured Claimant will have to show that the Defendant at the very least showed a “reckless disregard” for the Claimant’s safety.
There is therefore a natural tendency for a Claimant to categorise the Defendant’s actions as having been inherently dangerous, because the Claimant will have been advised that mere carelessness on the Defendant’s part will not be enough to establish liability in the context of a sporting injury.
We have seen a number of sports cases where the Claimant has gone so far as to allege that the injury was caused deliberately (often in the context of a particularly bad-natured sporting event, or where there had been a history of escalating confrontation between the Defendant and the Claimant in the lead-up to the injury).
There is some attraction to a Claimant in characterising a sporting injury as having been caused deliberately, because if this is established then it removes the risk of the Court finding the Defendant not liable on the basis that the injury was caused by an error of judgement alone. However the trap for Claimants here is that if the injury is found to have been caused deliberately, the Defendant will probably not be indemnified under any legal liability insurance that might be in place.
This kind of case can also throw up potential pitfalls for the insurer. What position on indemnity should the insurer take if the Claimant’s case is solely that the injury was caused deliberately, whereas the insured Defendant claims that it was a pure accident?
The key here is to carry out a full investigation into the circumstances of the incident as soon as possible. Team-mates of the Claimant and the Defendant can be useful sources of background detail, although our experience is they have a very strong tendency to support their respective team-mates’ positions. Officials from the two teams can usually be expected to be slightly more objective, but invariably the best source of information is the referee.
In the higher levels of amateur sport, referees normally have to supply a report for every match to the sport’s local governing body, which ought to include the referee’s view on incidents within a game which have given rise to an injury, particularly where there has been a booking or a sending off. If the referee’s view is that the incident was deliberate, then this is very persuasive evidence.
The difficulty of course lies with sporting contests at the lower end of the amateur spectrum, where the referee is often unqualified, and indeed sometimes is a non-playing substitute from one of the teams, and will not be under an obligation to prepare any sort of post-match report. In these cases, unless there is a strong body of witness evidence which gives an overwhelming view that the injury was caused deliberately, the insurer will probably be best advised to provide an indemnity.
The range of possibilities on liability and indemnity can be summarised as follows:
- Injury caused by error of judgement - Defendant not liable, albeit cover for “accidental” injury would be available
- Injury caused through “reckless disregard” - Defendant is liable, cover available as injury still accidental
- Injury caused by deliberate actions - Defendant is liable, but no cover available as injury is not accidental
It follows therefore that if a sporting injury claim is made against a person who has the benefit of legal liability insurance cover, the insurer will only have to deal with the claim if it falls into the middle category. The Claimant will therefore have to tread a careful line, making sure that they portray the incident as being sufficiently serious to fall into the “reckless disregard” category, but not so serious as to fall into the description of having been caused deliberately.