No liability for "friendly" football injury

Recruit's bad tackle on his instructor not beyond the reasonable player, says judge

News, 22 August 2005

A fire service instructor whose leg was broken by a bad tackle in a friendly football match between trainees and instructors, has failed in his court bid for damages.

Instructor David Sharp had alleged that Steven McLean had failed to take sufficient care for his instructor's safety in rushing into the tackle, which came almost at the start of the match - traditionally held to mark the end of the trainees' 16 week course. However Lord Macphail in the Court of Session ruled that although McLean had gone into the tackle with his leg straight and his studs showing, a player was only liable if his tackle was so bad that no reasonable football player would have made it - and Mr Sharp had failed to prove that McLean's tackle was in that category.

On the evidence, said Lord Macphail, "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 [McLean] 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 [McLean] 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."

Mr Sharp had agreed not to press for damages against McLean himself but claimed from the fire board as McLean's employers. Lord Macphail decided that the board would have been legally liable if Mr Sharp had proved his case.

The relevant considerations, said the judge, were that the board required McLean to go on the course; it was reasonable to infer that they expected him to take part in any activities traditionally associated with the course, such as the football match. There was no suggestion of their disapproval. "In my opinion [McLean's] playing in the match was so closely connected with his employment with the [board] that it would be fair and just to hold them vicariously liable for his actions during the match."

However the action failed and Mr Sharp will not receive any of the £6,000 damages that had been agreed as reasonable on full liability.

Lord Macphail's opinion can be read at http://www.scotcourts.gov.uk/opinions/CSOH111.html.