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 Q.B. 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.

[12] However, he went on to criticise the Lord Ordinary, first of all in respect, as has been seen, of his refusal to accept any opinion evidence from any of the eye-witnesses as to how the tackle should be categorised, whether in the context of recklessness or simply "bad". He criticised the Lord Ordinary for categorising these opinions as that of experts, in the sense that he submitted the phrases were nothing more than descriptive titles of an event which was eye-witnessed by the witnesses and accordingly their reaction in respect by the various adjectives that were used was relevant and should have been accepted by the Lord Ordinary. He focused particularly upon what he described as the value judgments of the witness MacLeod and in that respect the following:

· "an aggressive lunging tackle" (transcript 1(a) at page 58F-59A)

· "extremely mistimed" (transcript, page 62C)

· "dangerous" (transcript, page 110D)

· "unacceptable" (transcript, page 61D)

· "I would have sent him off" (transcript, page 61F-62A)

· "A very bad tackle" (transcript, page 108D-E)

· "A dangerous and aggressive tackle" (transcript, 110D)

Mr Campbell went through the same exercise in relation the witness Cameron, whose comments were in the following terms:

· "Reckless" (transcript, 130C, 130D; 132B-C)

· "A sort of lunge forwards David" (transcript, 128C)

· "mistimed" (transcript, 131E)

· "A full-blooded tackle ... mistimed" (transcript, 149E)

And the witness King:

· "bad" (transcript, 157E)

· "It was a very reckless challenge in my opinion for the nature of the game" (transcript, 157F)

· "very harsh" (transcript, 158B)

· "very reckless" (transcript, 158E-F; 164F-165B-C)

· "reckless" (transcript, 162C)

· "a very dangerous challenge" (transcript, 164C)

· "you wouldn't tackle like that in just a fun game of football" (transcript, 166B)

[13] In essence the submission of Mr Campbell in this respect was that while it might not be appropriate to categorise the lay witnesses so called as experts, and while Mr O'Donnell might possibly be regarded as such, the real context of the comments was one of describing what had happened, at times in rather dramatic terms, and thus enabling the judge to characterise the nature of the tackle rather than amounting to an independent assessment, such as attempted by Mr O'Donnell. In this context, Mr Campbell accepted that the use of the word "reckless" was not particularly helpful, it being either a word with a particular legal meaning or a general comment which did not bear any specific conclusion. In passing, Mr Campbell referred us to Macphail on Evidence 1987 ed., at para.17.

[14] Mr Campbell submitted that since there was no challenge being made at this level on the Lord Ordinary's findings-in-fact, the issue being what inferences should be derived from those, this court was in as good a position as the Lord Ordinary to assess that question, and he made this submission under reference to Benmack v Austin Motor Company Limited 1955 A.C. 370 and in particular Viscount Simmonds at page 372.

[15] In these circumstances he submitted the evidence pointed entirely to the direction of the test laid down in the cases and enunciated by Dr Goodhart as being met. The conduct of the second defender, particularly since it was held he did not win the ball and accordingly most likely struck the pursuer after he had parted with the ball with such a degree of force and in such a way, albeit in a one-footed tackled, with the studs up with such momentum as to cause the very serious fracture of the pursuer's leg, which was a complete break. In essence, Mr Campbell's submission was this was the only conclusion the Lord Ordinary could reasonably have come to and should therefore have done so.

[16] In a carefully reasoned reply, Miss Milligan concentrated upon the evidence of Mr O'Donnell, which she re-read to us, in the context, as she submitted, that he did no more than express views based on the word "could" rather than "should" and particularly that he really felt unable to offer much in the way of a positive opinion as to the quality of the tackle since he of course did not see it and the whole matter was put to him on the basis of hypotheses. Accordingly, the Lord Ordinary was not bound to accept any inference favourable or not from his evidence which assisted the pursuer's case. While she accepted that she did not lead any alternative expert evidence, she vigorously cross-examined Mr O'Donnell and it was quite wrong to say his evidence was therefore not challenged. Her submission was that it was essentially valueless in its content.

[17] She then went on to submit that the Lord Ordinary had quite properly determined that he could not reach a decision on the vital matter enunciated by the test, by reason of the way he sets out his reasons, as we have already observed in the second half of paragraph 28 of his judgment. He was, said Miss Milligan, quite correct to contrast the evidence of Mr O'Donnell, who was not a referee, but to expert evidence which the Court of Appeal had in Condon from a very experienced match referee. The Lord Ordinary's approach could not therefore be faulted and in any event should not be faulted at this stage of the process, or at the very least he reached a conclusion which he was entitled to achieve for the reasons he gives, even if the alternative of finding for the pursuer was open to him. She also referred us to Elliot v Saunders and Another (unreported) 10/6/96 a single judge decision in respect of a very similar incident in a match between Chelsea and Liverpool on 5 September 1992, at Anfield.

[18] We have not found this matter easy to resolve, not least because of the fact that upon any view the nature of the injury to the pursuer as regards its severity was such that in tackling the pursuer, as found by the Lord Ordinary, with his single foot, straight with studs exposed, the defender's approach must have been of such momentum as to suggest that the second defender was not in control at a time when the pursuer no longer had the ball. The finding that the second defender did not win the ball is highly relevant to this issue. We also recognise that, properly categorised, the various descriptions given by the various witnesses that we have set out in adjectival terms could be categorised as describing the nature of the event rather than categorising it in any expert way, therefore supporting the view that the test as enunciated is met in the sense that this was an error of judgment far exceeding what should be expected of a reasonable competitor.

[19] Having said that, however, we are persuaded that Miss Milligan's approach to Mr O'Donnell's evidence is correct and that it is essentially valueless, or at least the Lord Ordinary was entitled to regard it as such. It is all based on hypotheses, frequently in response to leading questions and is no more than expressions of opinion which cannot in themselves yield inference that meets the relevant test. For the reasons he gives, the Lord Ordinary's ultimate conclusion applying the test was essentially that of non probatum and we cannot fault him for reaching that conclusion given that he gives very specific reasons as to why he is unable to reach a decision on the crucial issues which he enunciates in the part of the paragraph of his judgment to which we have already made reference. Without repeating those reasons, we consider that they sufficiently support the conclusion the Lord Ordinary reached and it would be inappropriate for this court to interfere. As we have stated, we do not consider that Mr O'Donnell's evidence is such as to yield an inference along the Ross and O'Donnell lines which would favour the pursuer. The base is simply not there, whether he be categorised as an expert or not. This case certainly is in marked contrast with Condon, as the Lord Ordinary points out, where the court was given specific expert evidence based on a factual assessment. In our opinion, at its highest, the actions of the second defender raise a real question as to whether the test has passed, but we consider that the Lord Ordinary was entitled to conclude that he was unable to reach a positive conclusion of the matter and in that respect we will adhere to his findings, or lack of them, for the reasons he gives. We think it right to emphasise that the Lord Ordinary accepted from the witness Cameron that this was a genuine attempt to win the ball, and that not only did he feel unable - even on the basis of the evidence of those witnesses he broadly accepted - to make findings as to the interval of time which elapsed between the pursuer's passing of the ball and the second defender's contact with him, he was also unable to make detailed findings (particularly in relation to the point in time when the second defender's tackle was launched) as to where the ball was (e.g. its height above ground and position relative to the pursuer), nor as to the relative positions, speed and movements of both players nor as to ground conditions prevailing - all factors which Mr O'Donnell's evidence made clear would be important in any averment of the degree to which the second defender's action could be said to be excusable (see e.g. pages 205E and 192E). We are equally of the view that he was not bound to accept the adjectival descriptions of what he calls the value judgments from the various eye-witnesses, again, for the reasons he gives. It was open to him to take the view that these expressions were not "helpful" absent relevant detail in the descriptions of what was seen, and he had, it seems, a concern about whether Mr MacLeod's judgment might have been coloured by other matters.

[20] In these circumstances, we are of the view that the Lord Ordinary reached a conclusion that he was entitled to achieve on the material before him and this court will not interfere with that conclusion. This reclaiming motion is therefore refused.