Sport in­her­ent­ly in­volves a "risk of in­jury, and where there is neg­li­gence there is scope in the sport­ing are­na for those harmed to take le­gal ac­tion" (Schot, 2005). Neg­li­gence is de­fined as the ab­sence of rea­son­able care where it should have been ex­er­cised. Un­der Eng­lish Law, for a claim to suc­ceed, four con­di­tions must be met (Cad­dell, 2005):

Du­ty of Care

A re­la­tion­ship must ex­ist be­tween the de­fen­dant and the claimant such that the de­fen­dant is legal­ly ob­lig­at­ed to ex­er­cise rea­son­able care. This du­ty ex­tends be­yond of­fi­cials and play­ers to in­clude gov­ern­ing bod­ies and sta­di­um own­ers.

· Re­cent­ly, the fo­cus has shift­ed to the du­ty of care gov­ern­ing bod­ies owe re­gard­ing long-term brain health. For ex­am­ple, “in 2023, the High Court (UK) heard an ap­pli­ca­tion for a Group Lit­i­ga­tion Or­der (GLO) in­volv­ing claims (295 play­ers) be­ing brought against World Rug­by Lim­it­ed, Welsh Rug­by Union Lim­it­ed, and Rug­by Foot­ball Union... The claims are in re­spect of per­ma­nent long-term ill­ness and in­jury, which is al­leged to have re­sult­ed from re­peat­ed con­cus­sive and sub-con­cus­sive in­juries in­curred by the ath­letes in­volved dur­ing their time train­ing and play­ing in match­es.”

Source: https://www.nor­ton­rose­ful­bright.com/en/in­side-sports-law/blog/2023/07/group-lit­i­ga­tion-or­ders-in-sport-com­bin­ing-ef­forts-in-the-pur­suit-of-con­cus­sion-com­pen­sa­tion#:~:text=In%20late%202023%2C%20the%20High,train­ing%20and%20play­ing%20in%20match­es.

<Breach of Du­ty>

The de­fen­dant’s con­duct must fall be­low the "ap­plic­a­ble stan­dard of care." This is of­ten a "mov­ing tar­get" as med­ical and safe­ty knowl­edge evolves.

· In Wat­son v British Box­ing Board of Con­trol (2001), the court es­tab­lished that a gov­ern­ing body could be li­able if it failed to en­sure that its safe­ty reg­u­la­tions re­flect­ed the best avail­able med­ical knowl­edge. If a ref­er­ee or medic ig­nores a stan­dard "head

in­jury as­sess­ment" (HIA) pro­to­col for their sport, they have like­ly breached their du­ty. https://com­mit­tees.par­lia­ment.uk/writ­tenev­i­dence/23469/html/

<Prox­i­mate Cause (Cau­sa­tion)>

A di­rect link must be es­tab­lished be­tween the neg­li­gent act and the in­jury. If an in­jury had hap­pened re­gard­less of the de­fen­dant's ac­tions, the claim fails.

If a sta­di­um stands col­laps­es due to over­crowd­ing, and if the ev­i­dence shows the col­lapse was caused by struc­tur­al weight ex­ceed­ing ca­pac­i­ty, then prox­i­mate cause is es­tab­lished. How­ev­er, if an ath­lete claims a ca­reer-end­ing in­jury was due to a bad tack­le, but med­ical records show a pre-ex­ist­ing de­gen­er­a­tive con­di­tion, "cau­sa­tion" be­comes much hard­er to prove.

<Dam­ages>

The claimant must prove they suf­fered ac­tu­al loss (phys­i­cal, psy­cho­log­i­cal, or fi­nan­cial) di­rect­ly re­sult­ing from the breach. In the UK, the courts are in­creas­ing­ly look­ing at "psy­cho­log­i­cal dam­age" along­side phys­i­cal trau­ma, pro­vid­ed it is a rec­og­nized psy­chi­atric ill­ness.

<Ref­er­ee Li­a­bil­i­ty>

The UK Court of Ap­peal ac­knowl­edged that the du­ty of care was es­tab­lished fol­low­ing two sep­a­rate cas­es brought by rug­by play­ers who had suf­fered se­vere spinal trau­ma be­cause of the ref­er­ee's fail­ure to ex­ert ad­e­quate con­trol over a high­ly tech­ni­cal area of the game. In the case of Smol­don v Whit­worth 1997, the claimant, Ben­jamin Smol­don, sued rug­by ref­er­ee Michael Nolan for “the ref­er­ee's fail­ure to ap­ply and en­force the rules of en­gage­ment at the scrum­mage led to an un­ac­cept­ably high num­ber of col­laps­es of the type that even­tu­al­ly led to his de­bil­i­tat­ing in­juries,” (Cad­dell 2005: 418). Nolan con­ced­ed that he owed a du­ty of care to all par­tic­i­pants.

In the case of Vowles v Evans, the de­fen­dant ref­er­ee Evans, un­like Nolan, dis­put­ed care of du­ty to­wards the play­ers. The Court of Ap­peal up­held li­a­bil­i­ty, and “cat­e­gor­i­cal­ly re­ject­ed the ar­gu­ments of the de­fen­dants,” (Cad­dell 2005: 422). Ac­cord­ing to Lord Phillips MR, a “match of­fi­cial owes a du­ty of care to the play­ers, ir­re­spec­tive of whether the match is played by adults or mi­nors, am­a­teurs or pro­fes­sion­als,” (Cad­dell 2005:422).

To­day, the "Stan­dard of Care" for a ref­er­ee in­creas­ing­ly in­volves con­cus­sion man­age­ment. If a ref­er­ee ob­serves a play­er show­ing clear signs of con­cus­sion and fails to re­move them from play—vi­o­lat­ing the "If in doubt, sit them out" pro­to­cols now stan­dard in UK sport—they could face a neg­li­gence claim sim­i­lar to the one in Smol­don, but for a fail­ure of med­ical over­sight rather than just a rule of play.

<Sport Or­gan­is­ers Caveat>

To­day, or­gan­is­ers must recog­nise that "rea­son­able care" evolves with tech­nol­o­gy and med­ical sci­ence. Whether it is en­sur­ing the safe­ty of play­ers and fans in high-risk en­vi­ron­ments or up­dat­ing con­cus­sion pro­to­cols, the bur­den re­mains on or­gan­is­ers to pro­tect all stake­hold­ers. The du­ty of care is uni­ver­sal across all lev­els of the game.