Spear-tackles and sporting conspiracies: recent developments in tort liability for foul play.

• Author: Anderson, Jack

Introduction

On 12 May 2000, Jarrod McCracken of the Australian rugby league team, West Tigers, was tackled by two members of the opposing Melbourne Storm team. The strength of the tackle led to McCracken being swivelled off balance and dumped on his head in what is referred to in that sport as a 'spear-tackle'. The tackle resulted in significant neck and spinal injuries ending McCracken's playing career. In February 2005, McCracken successfully sued the offending players and their club for negligence in a case heard by the New South Wales Supreme Court.

On 8 March 2004, Steven Moore of the National Hockey League's Colorado Avalanche was punched and jumped upon by Todd Bertuzzi, a member of the opposing Vancouver Canucks. The ferocity of the attack left Moore hospitalised with three fractured vertebrae, facial cuts, concussion and amnesia. It is unlikely that Moore will ever play hockey again at the professional level. On 15 February this year, Moore filed a lawsuit in Denver District Court accusing Bertuzzi of assault, battery, negligence and civil conspiracy.

The McCracken and Bertuzzi incidents, both of which raise a number of interesting points, will be discussed in the following manner. Firstly, they demand a brief review of the general principles of tort liability arising from violent play between participants. In this, it must be noted that, although this article will be informed by a comparative approach incorporating all the major common law jurisdictions, the primary emphasis will be on English law and what sports lawyers within that jurisdiction might learn from the stated incidents.

Secondly, while the McCracken case is of specific interest from the point of view of the tort of negligence and possible defences such as the assumption of risk; it also reminds professional sports clubs of their vicarious responsibility for acts of their employees. Furthermore, the quantum of damages in the McCracken case is noteworthy in that McCracken is seeking a significant sum in compensation based on the fact that his lucrative professional career was prematurely ended as a result of the negligent tackle.

Thirdly, the lawsuit filed by Moore contains an accusation of civil conspiracy against his immediate opponent, Todd Bertuzzi, Bertuzzi's employing club as well as Bertuzzi's coach and certain named teammates. The implication seems to be that the Vancouver Canucks had a concerted plan to target and injure Moore during the course of the game in question. The potential scope of such a finding will be discussed, as will its implications for all contact sports.

Finally, this article will conclude by indulging in some speculation as to the possible future developments in this area of the law focusing on the duty of care and standard of care expected of participants, coaches, professional sports clubs and sports regulatory bodies.

1. General Principles

   The law of torts determines who bears the loss that results from the defendant's unlawful act or omission and seeks to award compensation for that loss. According to Jahn, tort law should be seen as 'the best way to deter violent conduct among athletes and provide them with an adequate remedy for their injuries. Tort law imposes financial liability on the athlete ... and this will hit him where it hurts the most--in his pocket.' (1) In February 2004, for example, former Charlton FC player, Matthew Holmes, received 250,000 [pounds sterling] in agreed damages without admission of liability at the English High Court as a result of a tackle by Kevin Muscat. Holmes suffered a broken tibia in the tackle by then Wolves defender Muscat in an FA Cup game in February 1998. Holmes had launched a 2m [pounds sterling] lawsuit against Wolves and Muscat, who now plays for Millwall.

   In attacking the athlete 'where it hurts the most', the law of torts is armed with two weapons, namely, assault and battery (trespass to the person) and negligence. (2) At common law, the distinction between trespass to the person and negligence was summarised by Lord Denning in Letang v Cooper (1965):

   "If he [the defendant] does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all." (3)

   As a matter of practice therefore, trespass to the person can be characterised by its concern for direct intentional acts; negligence by its concern for careless or indirect acts. (4) Lord Denning's maxim prompts two important points of interest. Firstly, seldom will a plaintiff injured during the course of a contact sport sue in assault and battery. This is because the plaintiff would have to demonstrate that, on the balance of probabilities, the injury was inflicted deliberately and intentionally. This is a difficult onus of proof to discharge particularly as the courts will inevitably be asked to take into account factors such as the spontaneous and necessarily robust environment that is contact sport, that players act and react 'in the heat of the moment' and that players in a sporting contest must be assumed to have been acting consensually. In sum, the difficulties confronting plaintiffs in such instances are similar to those facing the prosecution in criminal assaults resulting from violence on the field of play. (5)

   Secondly, Lord Denning's remarks reveal that fundamental to the tort of negligence is the applicable standard of care--reasonable care, as construed by Lord Atkin in Donoghue v Stevenson (1932). (6) In Wooldridge v Sumner (1962) (7)--a case concerning a claim in negligence by a spectator injured by a participant in a horse riding event but taken to have applicability to the inter-participant standard of care--Sellers LJ elaborated upon that standard's application to violence in sport:

   "... provided the competition or game is being performed within the rules and the requirement of the sport and by a person of adequate skill and competence, the spectator does not expect his safety to be regarded by the participant. If the conduct is deliberately intended to injure someone whose presence is known or is reckless and in disregard to all safety of others so that it is a departure from the standard which might reasonably be expected in anyone pursuing the competition or game, then the performer might well be liable for any injury his act caused." (8)

   The stated principle was subsequently labelled as 'The Sportsman's Charter'. In sum, in the honourable opinion of the judges of the English Court of Appeal, momentary lapses of skill and judgment by the participant on the sportsfield would not amount to negligence provided that (a) the participant could be said to have a reasonable level of skill, judgment and experience and (b) the participant did not act in a manner that could be adjudged to have been recklessly in disregard of the safety of others immediately involved in that activity.

   'The Sportsman's Charter' did not, initially at least, receive welcome. One distinguished academic, Professor A.L. Goodhart, argued vehemently against the apparent deviation by the Court of Appeal from the principles of Donoghue v Stevenson; nor did he see any consequent justification for the creation of a special 'sporting' category of negligence. (9) Professor Goodhart concluded that with necessary respect for the ordinary principles of negligence mapped by Lord Atkin, the proper test to be applied should be whether the injury had been caused 'by an error of judgment that a reasonable competitor being a reasonable competitor being a reasonable man of the sporting world, would not have made.' (10)

   It is submitted that the learned professor was somewhat hurried in his reflection on Wooldridge. In the stated case, the English Court of Appeal did not create anything like a special 'sporting' category of negligence; they merely tailored Atkinian reasonability to the circumstances at hand, taking into account the recognised social utility of sport to justify a lower behavioural standard of 'reckless disregard'--the legal standard of care remaining at all times that which is reasonable in the circumstances. Furthermore, it is the social utility of sport that should be taken to underpin the lower (behavioural) standard of care, outweighing factors such as the probability of an accident in sport, the gravity of the threatened injury and the cost of eliminating the risk--factors which, if taken in isolation, might justify a stricter standard.

   The subtle distinction between the general legal standard of reasonable care and the behavioural standard of reckless disregard has been broadly acknowledged and applied by the English Courts. (11) For example, in Wilks v Cheltenham Home Guard Motor Cycle and Light Car Club (1971), (12) the English Court of Appeal, anxious nonetheless to reiterate the fundamental applicability of the principle of reasonable care, stated that some factual account must be taken of the robust and risky 'sporting' nature of the circumstances at hand. Although Wilks concerned an injury sustained by a spectator as a result of the alleged negligence of a competitor in a motorbike scramble, Lord Denning's judgment is most revealing as regards the standard of care in sport generally:

   "Let me first try to state the duty which lies on a competitor in a race. He must, of course, use reasonable care. But that means reasonable care having regard to the fact that he is a competitor in a race in which he is expected to go 'all out' to win. Take a batsman at the wicket. He is expected to hit a six, if he can, even if it lands among spectators. So also in a race, a competitor is expected to go as fast as he can, so long as he is not foolhardy. In seeing if a man is negligent, you ask what a reasonable man in his place would or would not do. In a race a reasonable man would...