DAVID SHARP v. HIGHLAND AND ISALNDS FIRE BOARD+STEVEN McLEAN
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 111 |
| A531/03 | OPINION OF LORD MACPHAIL in the cause DAVID SHARP Pursuer; against HIGHLAND AND ISLANDS FIRE BOARD First Defenders: and STEVEN McLEAN Second Defender: ________________ |
Pursuer: Blessing; Thompsons
First Defenders: L Milligan; Ledingham Chalmers
18 August 2005
Introduction
[1]The pursuer sues the defenders for damages for personal injuries he sustained when he was playing football. The match took place on 27 June 2000 at the Scottish Fire Service Training School at Gullane, East Lothian. Some 70 recruits to the Fire Service had almost completed a 16-week course of training. A team of instructors, who included the pursuer, was playing against a team of recruits, who included the second defender. Very soon after the start of the match, the second defender tackled the pursuer. As a result, the pursuer sustained serious injuries to his right leg.
[2]The pursuer has raised the present action against the first defenders, who were (and still are) the second defender's employers, and also against the second defender, claiming payment jointly and severally or severally of damages of £20,000. He avers that "the said accident" was caused by the fault and negligence of the second defender for whose actings in the course of his employment with them the first defenders are liable. The first defenders deny liability. They aver that the second defender's tackle on the pursuer was a fair and reasonable attempt to win the ball. They further contend that if the second defender was negligent, they are not vicariously liable for his actings. In addition they state a plea of volenti non fit injuria, but at the hearing on evidence their counsel expressly departed from that plea. The second defender has not entered the process. At the commencement of the proof the pursuer's counsel undertook that the pursuer would not seek decree against him. The first defenders later led him as a witness. Damages are agreed at £6,000.
[3]The first question to be resolved is whether the pursuer has established his material averments of fact. If he has, the next question is whether he has established that his injuries were caused by the fault of the second defender. If it was, the final question is whether the first defenders are vicariously liable for the second defender's actings.
The incident
[4]Before discussing the averments and evidence about the incident, it will be useful to set the scene. The following findings are based on the evidence of Mr John MacLennan, one of the first defenders' officers, who was familiar with the running of the School, and Mr Paul Owens, one of the instructors, who acted as the referee. The recruits were employees of various Scottish Fire Boards. It was a condition of each recruit's employment that he should go on the course. While he was on the course he was paid by his employers and he remained subject to their disciplinary rules. The football match took place in the last week of the course, with the permission of the Commandant of the School. It was organised by the instructors and although it was not mentioned in the printed course timetable, in practice time was made for it. It was intended to be a friendly match between the instructors and the recruits. Neither participation nor attendance was compulsory. The Training School provided the football pitch, which was mown for the occasion, properly marked and provided with corner flags, goal posts and nets. The School also provided football strips for each team. Mr Owens described the match as "a sort of tradition". It was "the instructors' way of thanking the recruits for their hard work and effort." The recruits looked forward to it as an occasion when they could feel a sense of release and relax a bit. It was not intended to be a deeply serious contest. Mr Owens described it as "an informal kick-around rather than a football match". The atmosphere of the occasion is indicated by Mr Owens's description of his role. He had no professional qualifications as a referee. He described himself as an arbiter rather than a referee, explaining with engaging insouciance that his unofficial job description was to make sure all his decisions went the instructors' way so that the instructors won. Unfortunately he did not see the incident in which the pursuer was injured. When it happened, he immediately abandoned the match. The incident "soured the atmosphere - put a damper on it." After the incident there was an inquiry as a result of which the tradition of holding the football match was abandoned.
[5]The pursuer's averments about the incident are in these terms:
"Shortly after the start of said football match the pursuer was high-tackled by the second defender. The pursuer was tackled from his right-hand side and did not see the second defender approach. The second defender struck the pursuer with both feet in the middle of the right lower leg area. The second defender entered the said tackle with the studs of his boots pointing towards the pursuer's said leg. As a result of said incident the pursuer suffered the loss, injury and damage hereinafter condescended upon. [ . . . ] A moderately severe force was required to produce the injury sustained by the pursuer."
The first defenders' averments about the tackle are as follows:
"Shortly after the commencement of the match, Mr McLean tackled the pursuer. At the time of the tackle, the pursuer did not have the football under his control. Mr McLean tackled him from the side. In carrying out the tackle he led with one foot and made a genuine and successful attempt to win the ball. In doing so, he was also involved in a collision with the pursuer. Such tactics and collisions are commonplace in the course of a football match."
[6]I have found it exceptionally difficult to make findings in fact about the tackle. There is no video or photographic evidence. The eye-witnesses who gave evidence in court from 31 May to 2 June 2005 were required to describe an event which had occurred nearly five years before, on 27 June 2000, and which had lasted for no more than a very few seconds. All these witnesses were Fire Service officers. Each of them impressed me favourably as a mature and responsible witness who was honestly doing his best to tell the truth. It is not realistic, however, to expect, even from the most honest witnesses, precise and consistent recollections of the positions, movements and directions of the players and the ball at the time of the tackle. A further difficulty was that all the eye-witnesses not only gave evidence of fact but also offered their opinions as to whether the second defender had been negligent, frequently using the ambiguous word "reckless". Those passages of evidence on the issue before the court were led without objection, but I did not find them helpful and I have disregarded them.
[7]All the witnesses were agreed that it was the second defender who made the tackle and that he did so very shortly after the kick-off. The pursuer said that he (the pursuer) was in the instructors' half of the pitch, around the perimeter of the centre circle. He received the ball under his right foot. He passed the ball forward. It was his first kick of the match. He placed his right foot back down on the ground. He then felt a major impact on his right leg which lifted him into the air and caused him to fall to the ground. He felt extreme pain and he remained on the ground until he was carried off. The impact had been a lateral force from his right side, and contact had been made with his right leg about 6 to 8 inches above the sole of his foot. He did not see the second defender before the impact. He was adamant that he had already kicked the ball before the second defender tackled him. In addition to this evidence of fact, the pursuer gave evidence of inferences he had drawn about the incident. He considered that the second defender must have been running at full speed and must have been on the ground or very close to the ground. He believed it was the second defender's leading leg which had hit him. He said there was no reason why the second defender should feel any malice towards him, but there had been general animosity among the recruits towards the instructors, and some of the recruits distinctly disliked their instructors. He thought the second defender wanted to make sure the pursuer knew he was on the pitch. The second defender had apologised to him when he returned from hospital.
[8]I consider that it is important to distinguish between the pursuer's direct evidence of what he did and experienced, on the one hand, and his beliefs and inferences, on the other. I am satisfied that his evidence about what he did before he was tackled, and what he felt at the time of the impact, is acceptable. He gave that evidence in a convincing manner and, as will appear later, his evidence is consistent with that of other witnesses whose evidence on these points I am prepared to accept. I believed him when he said that he had made his first kick of the match before he felt the impact. I accept from him that before he was tackled he had passed the ball and had placed his right foot back on the ground. I also accept that he did not see the second defender before the tackle, that the second defender approached from his right hand side, and that he was struck forcibly on the right leg some 6 to 8 inches above the sole of his foot. All this evidence had the ring of truth. I do not think, however, that it would be safe to rely on the pursuer's inferences about the second defender's pace or where he was in relation to the ground or which of his legs hit the pursuer. The pursuer did not observe any facts from which such inferences could be drawn. He described the tackle as "reckless" and "most definitely a foul". I have no doubt that he has heard the comments of other witnesses about the tackle, and that he has thought a great deal about it and honestly maintains these opinions, but since he did not see it, he is not in a position to judge.
[9]Mr Iain MacLeod was playing for the instructors. He said that the ball was passed back to him, and he passed it to the pursuer. The pursuer "turned" the ball and took a few steps with it. Mr MacLeod could not recall if the pursuer had passed the ball before he was tackled. The ball was a couple of feet in front of the pursuer. He was "rushed" by the second defender who had been some 15 yards from the pursuer. The second defender came from the pursuer's right hand side at the maximum speed he could have generated in 15 yards. Mr MacLeod described it as "an aggressive lunging tackle" which connected with the pursuer with at least one foot: Mr MacLeod's recollection was that both feet were off the ground. The second defender's studs were definitely "up" on one foot. The tackle was "very mistimed", and the second defender did not get the ball. Mr MacLeod did not recollect what direction the ball took. He was "almost 100% sure" he did not see any contact between the second defender and the ball.
[10]Mr MacLeod gave his evidence frankly - so frankly, indeed, that he observed that if he himself had been guilty of making a bad tackle, he would have maintained untruthfully that he had got the ball. Similarly, he considered, the second defender might have been motivated to lie by asserting that he had won the ball as the result of the tackle. I have reached the view that although Mr MacLeod admitted that on such an occasion he would be prepared to tell a lie to his own advantage, that does not cause me to doubt his purely factual evidence on oath about what occurred. I have also had to assess two other matters. Mr MacLeod said, with similar frankness, that when he saw what he described as "a very bad tackle" and a colleague very badly injured, "the red mist came down" and he was "less than charitable" to the second defender. He also understood, it would appear mistakenly, that after the course was over, recruits from the Highland and Islands Fire Board, including the second defender, had complained that during the course some of the instructors, including Mr MacLeod, had bullied them and pushed them too hard. The first defenders' counsel timeously objected to this evidence about complaints, which Mr MacLeod gave in re-examination. I repelled the objection under reservation of all questions of competency and relevancy. In the event, the first defenders' counsel founded on the evidence in her closing speech as indicating that Mr MacLeod's understanding about the complaints had coloured his judgment and made his evidence unreliable. I have considered what Mr MacLeod had to say about "the red mist" and the complaints, and I have concluded that I should not take into account his value judgments about the tackle. He described the tackle as "dangerous" and "unacceptable" and said, "I would have sent him off, no question". On the other hand I am satisfied that his evidence of fact is reliable. I therefore accept from him that the second defender approached the pursuer from the right at high speed, that his studs were up on one foot, and that he did not win the ball. On the latter point Mr MacLeod supports the evidence of the pursuer.
[11]The third eye-witness was Mr Rae Cameron who was standing on the sidelines as a substitute for the instructors' team. From a distance of 25 to 30 yards he saw the pursuer running from the witness's left to his right. He could not be specific about where the ball was. He saw the second defender "lunging" towards the pursuer, leading with his legs to try to win the ball: he could not say if he was leading with both legs or one leg. He could not say if he saw the second defender's studs, and he could not say anything about his pace. The second defender did not win the ball, which was slightly in front. Mr Cameron also stated his opinion about the tackle, saying that it was "reckless", "a full-blooded tackle, mistimed", and that the risk of injury was obvious.
[12]I was impressed by the fact that Mr Cameron was conspicuously fair to the second defender. He had been one of his instructors, and he described him as a fair man, "passionate" and "quite determined" but "not loud", and he said it would make sense that the second defender had had no reason to be angry with the pursuer. The second defender had been "clearly quite upset about the pursuer's injury and felt quite bad about it." He therefore had not wanted to go out to the pub with the others that night, and Mr Cameron had gone and spoken to him to encourage him to do so. Mr Cameron gave his evidence in a measured fashion, and I accept from him that the second defender was leading with at least one leg in an attempt to win the ball, and that he failed to win the ball. On the other hand I disregard his opinions about the tackle.
[13]The next witness, Mr Christopher King, was playing for the recruits. It was he who kicked off. Shortly after that, he saw the pursuer from 15 to 20 yards away. He had a clear view. The pursuer had the ball at his feet. The pursuer passed the ball, and then the second defender came in from his right hand side. The ball was away by the time the tackle happened. The second defender made the tackle at a fast pace. The pursuer did not know he was coming. He came in with both feet, as far as Mr King's memory served, and his studs were up. One leg he was leading with was definitely up, and one foot - he thought the left foot - made the contact. He did not assert that it was a "high tackle". Mr King was absolutely certain that the second defender did not get the ball. In cross-examination he said he could not dispute if the second defender said he had touched the ball, but I was convinced by his positive evidence in examination-in-chief. He described the tackle as "bad", "dangerous", "reckless" and "very harsh", and considered that a player who made such a tackle should be sent off. Again, I distinguish between the witness's factual evidence and his assessment of the tackle. I accept that the second defender approached the pursuer at speed, that the pursuer did not know he was coming, that the pursuer had passed the ball before the tackle and that the second defender did not win the ball.
[14]The pursuer's final witness who was present at the match was Mr Paul Owens, the referee, who did not see the tackle, as I have noted.
[15]The first defenders' witnesses to the incident were the second defender, Mr Andrew Craig and Mr Grant Inkson. It will be convenient to deal with the two latter witnesses first. Mr Craig was playing for the recruits. He described the second defender as a good, fair footballer, who was known as a skilful player and not known for carrying out dangerous tackles. Mr Craig said that at the start of the match, after a couple of passes the ball was played to the pursuer, who "took a bad touch": he did not control the ball properly, and it was three or four yards in front of him. The pursuer and the second defender came for the ball from opposite directions. The second defender started running from six or seven yards away, and got to the ball first. He was not too fast, and his studs were not up. The second defender won the ball, and when he got the ball the pursuer was right at the ball as well. After the second defender won the ball, his momentum carried him into the pursuer, and the foot that had hit the ball hit the pursuer's leg. The second defender's leg had been straight. The tackle had not been a lunge, or high, aggressive or reckless. While that was the effect of Mr Craig's evidence about the tackle, the manner in which he gave it failed to convince me that it was reliable. At several stages his evidence was confused, particularly in relation to the players' positions on the pitch. However, I accept his evidence that the second defender's leg was straight at the moment of impact. I also accept his evidence as to the good reputation of the second defender.
[16]Mr Inkson was also playing for the recruits. He also described the second defender as a very good footballer: he had never known the second defender to be unfair, or to perform a reckless tackle. He saw the ball being passed to the pursuer, and the pursuer losing control of it. He did not, however, see the tackle. After the tackle the ball broke towards the recruits' goal. I accept Mr Inkson's opinion of the second defender. His evidence that the pursuer lost control of the ball is consistent with the evidence of Mr Craig, but inconsistent with the evidence of the pursuer, Mr MacLeod and Mr King. I find the evidence of the latter witnesses convincing. I consider that Mr Inkson's evidence about the direction the ball took after the tackle is inconclusive.
[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.
Liability of the second defender
[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.
[21]Counsel for the pursuer submitted that it had been the duty of the second defender to take all reasonable care, in the circumstances in which he found himself, for the safety of others. The test was not whether he had been "reckless", although a witness's description of his conduct as "reckless" or "dangerous" or "out of keeping with the character of the game" might indicate that he had failed to satisfy the test of reasonable care. Here, the second defender had made a straight-leg tackle with studs up, at speed, and in so doing had failed to meet the test. Counsel for the first defenders agreed that recklessness was not the test. The level of care required of the second defender was that which was appropriate in all the circumstances. Counsel's primary position on the issue of liability was that what had occurred had been just an unfortunate accident. Momentary carelessness, if proved, was not negligence in the circumstances. Counsel discussed Wooldridge v Sumner [1963] 2 QB 43; Condon v Basi [1985] 1 WLR 866; Smoldon v Whitworth [1997] PIQR P133, [1997] ELR 249; and Caldwell v Maguire [2001] EWCA Civ 1054, [2002] PIQR P6.
[22]It is accordingly common ground between the parties that the second defender owed a duty of care to the pursuer. The standard of care required of the second defender is, however, difficult to define. The standard of care required of a player of a game such as association football does not appear to have been judicially considered in Scotland, although the question has been discussed in other jurisdictions (for a recent survey, see Neville Cox, "Civil Liability for Foul Play in Sport" (2003) 54 Northern Ireland Legal Quarterly 351). The discussion before me centred on the English cases cited above. Wooldridge v Sumner [1963] 2 QB 43 was concerned with the liability of a competitor at a horse show towards a spectator. The Court of Appeal held that the competitor was liable only if he acted "in reckless disregard of the spectator's safety" (Diplock LJ at 68; see also Sellers LJ at 57). That test was criticised in Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 1 WLR 668, an action by spectators against a rider in a motor-cycle scramble, where Lord Denning MR (at 670) and Edmund Davies LJ (at 674) referred with approval to a note on Wooldridge by Dr A L Goodhart ("The Sportsman's Charter" (1962) 78 LQR 490), Edmund Davies LJ adopting Dr Goodhart's view that the proper test is whether injury to a spectator has been caused "by an error of judgment that a reasonable competitor, being the reasonable man of the sporting world, would not have made." Edmund Davies LJ went on to say:
"... although in the very nature of things the competitor is all out to win and that is exactly what the spectators expect of him, it is in my judgment still incumbent upon him to exercise such degree of care as may reasonably be expected in all the circumstances. For my part, therefore, I would hold him liable only for damage caused by errors of judgment or lapse of skill going beyond such as, in the stress of circumstances, may reasonably be regarded as reasonable."
[23]Neither Wooldridge nor Wilks was cited in Condon v Basi [1985] 1 WLR 866, an action between footballers, where the plaintiff had been injured as a result of a foul tackle by the defendant. Sir John Donaldson MR (at 868) expressed a preference for the judgment of Kitto J in Rootes v Sheldon 1968 ALR 33 at 37. Sir John Donaldson MR summarised Kitto J's views as follows: "... he is saying, in effect, that there is a general standard of care, namely the Lord Atkin approach in Donoghue v Stevenson [1932] AC 562 that you are under a duty to take all reasonable care taking account of the circumstances in which you are placed, which, in a game of football, are quite different from those which affect you when you are going for a walk in the countryside." Sir John Donaldson MR went on to say, "The standard is objective, but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a local league football match." Neither of the counsel before me supported this distinction. I note that it was doubted by Drake J in Elliott v Saunders Halsbury's Laws of England 1994, Annual Abridgement, paragraph 2056.
[24]In Smoldon v Whitworth [1997] PIQR P133, [1997] ELR 249 a rugby football player sued the referee of a match in which he had been injured. The judge adopted the test proposed by the plaintiff and derived from Condon: that the referee "owed a duty to the plaintiff to exercise such degree of care as was appropriate in all the circumstances." Lord Bingham CJ, delivering the judgment of the Court, said:
"The second defendant [the referee] feared that if the test proposed by the plaintiff and upheld by the judge were held to be correct, the threshold of liability would be too low and those in the position of the second defendant would be too vulnerable to suits by injured players. We do not accept this fear as well-founded. The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one. It will not easily be crossed."
[25]In Caldwell v Maguire [2001] EWCA Civ 1054, [2002] PIQR P6, the plaintiff was a professional jockey who was injured in the course of a race when the defendant, a fellow-jockey, caused his horse to fall. Tuckey LJ said (at paragraph 23):
"As in Smoldon, there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required. I do not think it is helpful to say any more than this in setting the standard of care to be expected in cases of this kind."
Judge LJ said (at paragraph 37):
"... in the context of sporting contests it is also right to emphasise the distinction to be drawn between conduct which is properly to be characterised as negligent, and thus sounding in damages, and errors of judgment, oversights or lapses of attention of which any reasonable jockey may be guilty in the hurly burly of a race."
Having referred to the dicta quoted above from the judgments of Edmund Davies LJ in Wilks and Lord Bingham CJ in Smoldon, Judge LJ continued (at paragraph 40):
"That case [Smoldon] involved an action against a referee. Referees have specific responsibility for the safety of the participants in the sport. It is clear from the passage in Lord Bingham's judgment that a referee would be entitled to escape liability in negligence for what was no more than oversight or error of judgment. It seems to me to follow that a participant who has caused injury to another participant in the same game or contest should be similarly entitled."
[26]In my opinion these authorities, derived from the speech of Lord Atkin in Donoghue v Stevenson 1932 SC (HL) 31 at 44, demonstrate that the standard of care required of the second defender was that which was appropriate in all the circumstances; and that in determining liability the circumstances are of crucial importance. In the circumstances of a football match, as is clear from the evidence of Mr O'Donnell, any player when tackling an opponent may be guilty of an error of judgment. Where by such an error of judgment he has caused injury to his opponent, the test of liability is whether the error of judgment was one that a reasonable football player would not have made. A reasonable football player is not a paragon who never makes a mistake. A player is therefore liable only for damages caused by errors of judgment or lapse of skill going beyond such as, in the stress of circumstances, may reasonably be regarded as excusable.
[27]In this case the second defender made an error of judgment by making a tackle that was mistimed in that it was too late. He thereby injured the pursuer by striking him instead of kicking the ball. The question is whether that error of judgment is one that a reasonable footballer would not have made. The severity of the injuries the pursuer sustained is an unusual feature of the incident. It is important, however, that the answer to the question should not be influenced by that factor: the issue is rather whether an injury of the type that did occur was likely to occur. That issue must be determined only upon a consideration of what the second defender is proved to have done in the circumstances. As I have said in paragraph [19], I have been able to find that the second defender ran towards the pursuer to tackle him but was unable to stop himself from colliding with the pursuer after the pursuer had passed the ball. The second defender's leg was straight, his studs were showing, and his booted foot struck the pursuer's right lower leg with moderately severe force. The tackle was obviously mistimed in that the second defender continued with it after the pursuer had passed the ball. To establish liability, however, the pursuer must demonstrate that the tackle was so bad that no reasonable football player would have made it.
[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".
[29]I have therefore decided that the first defenders must be assoilzied.
Vicarious liability of the first defenders
[30]The question whether the first defenders are vicariously liable for fault on the part of their employee, the second defender, does not now arise. I shall, however, express my opinion briefly.
[31]Counsel for the pursuer submitted that the test was whether what the employee did was so closely connected with his duties that liability should attach to the employer. Counsel founded on Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215 and the subsequent cases of Mattis v Pollock [2003] EWCA Civ 887, [2003] 1 WLR 2158 and Bernard v Attorney-General of Jamaica [2004] UKPC 47. Counsel also cited the earlier Scottish cases of Short v J & W Henderson Ltd 1946 SC (HL) 24, Kirby v National Coal Board 1958 SC 514 and Bell v Blackwood Morton & Sons Ltd 1960 SC 11. Reference was briefly made to Waldie v Glasgow Corporation 1954 SC 47 and Lothian and Borders Police Board v Ward 2004 SC 627. Counsel pointed out that the football match at the end of the course was a tradition; it was organised by the instructors with the permission of the Commandant of the School; and the School provided the pitch and the football strips as well as time in the curriculum for the match. It was not merely a social occasion: it promoted teamwork and bonding. The first defenders had sent the second defender on the course, and had paid him while he was attending it. He remained subject to their rules of discipline while he was on the course. His completion of the course was a condition of his remaining in their employment. The traditional game of football at the end of the course was stopped following an inquiry after the accident to the pursuer. That demonstrated that the holding of the match was under the control of the School. All these factors pointed to a close connection between the second defender's duties and his actions during the football match.
[32]Counsel for the first defenders stressed the informal nature of the match: it had not been part of the official course timetable and attendance was not compulsory. She distinguished Lister on its facts and founded on Ward v Scotrail Railways Ltd 1990 SC 255 at 263F-264C where Lord Reed considered Keppel Bus Co Ltd v Ahmad [1974] 1 WLR 1082 and passages in Salmond and Heuston on Torts (21st edn) at pages 443-444. She submitted that the present case failed the test that the act of the employee must be committed in the course of the employer's business, so as to form part of it, and not be merely coincident in time with it.
[33]In my opinion the leading authority on the matter in both Scotland and England is now Lister. Assuming the second defender to have been at fault, the question is whether his actions were so closely connected with his employment that it would be fair and just to hold the first defenders vicariously liable (Lister, Lord Steyn at [28], Lord Clyde at [37], Lord Hobhouse of Woodborough at [59], Lord Millett at [70]). The matter must be approached in a broad way (Bernard at [26], Mattis at [19]). The following are in my opinion the relevant considerations. The first defenders required the second defender to go on the course. While he was there they paid him, and he was subject to their rules of discipline. It is reasonable to infer that they must have expected him to take part not only in the course but also in any activities traditionally associated with it, such as the football match. There was no suggestion that his participation in the match, or the participation by their other recruits in matches in earlier years, had caused them to express disapproval or astonishment. In my opinion the second defender's playing in the match was so closely connected with his employment with the first defenders that it would be fair and just to hold them vicariously liable for his actions during the match. Accordingly, if I had found the second defender to be at fault, I would have granted decree against the first defenders for the agreed sum of damages.
Result
[34]In the result, however, I shall dispose of the action by sustaining the second plea-in-law for the first defenders, repelling the first plea-in-law for the pursuer and granting decree of absolvitor.