Kerr v Willis

In negligence claims arising from recreational contact sport, ordinary duty and foreseeability principles apply. Their application must reflect all the circumstances, including the speed and competitive nature of the game and the physical environment. A foul tackle from behind close to a hard wall may create a foreseeable risk of injury, but neither a near-wall challenge nor a tackle from behind is automatically dangerous in isolation. On appeal, findings based on conflicting eyewitness accounts and an injured claimant’s uncertain recollection will stand where the trial judge was entitled to reach them and has not erred. A mechanism consistent with the claimant’s account is not positive corroboration if equally consistent with other explanations.

Andrew Kerr suffered a catastrophic spinal injury during a five-a-side football match in an indoor sports hall when he collided head first with a hard end wall. He alleged that Gerard Willis had either made a late tackle after Kerr had played the ball or pushed or barged him from behind near the wall.

After a trial limited to liability, HHJ Holman dismissed the claim, finding that the tackle was not late and that Kerr had not been barged from behind. Kerr appealed, challenging those factual findings. The central issue was whether the evidence entitled the trial judge to reject Kerr’s account and conclude that no breach of duty had been established.

The Court of Appeal, in a judgment given by Lady Justice Smith with which the Master of the Rolls and Lord Justice Toulson agreed, dismissed the appeal.

1. Primary case. The trial judge was entitled to reject the allegation of a late tackle. The eyewitness evidence indicated that Kerr and Willis reached the ball virtually simultaneously. Even if Kerr had managed to kick it, the challenge would have occurred at the same time and could not properly be characterised as a late tackle or foul.
2. Alternative case. The ordinary negligence test applied, but it had to be assessed in the context of the sport. The court referred to Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054. Relevant circumstances included that the game was a contact sport played at speed and competitively, and that it took place in a sports hall with solid walls which were used as part of the pitch. A tackle from behind near a hard wall could, in combination, be dangerous and constitute a breach of duty. Neither feature alone necessarily had that consequence.
3. Evidence. Although the judge might have misunderstood part of Kerr’s evidence about kicking the ball, he was entitled to test Kerr’s recollection against the other evidence. No eyewitness described a push from behind or regarded Willis’s conduct as a foul. Kerr’s earlier description referred to a tackle or challenge rather than a barge. The forward projection was consistent with a push, but also with a trip or loss of balance, and therefore did not positively corroborate Kerr’s account.
4. The judge was entitled to make the findings reached on the evidence, and no error warranting appellate intervention had been demonstrated. Appeal dismissed.

• Court of Appeal (Civil Division): On 4 November 2009, dismissed Kerr’s appeal; [2009] EWCA Civ 1248.
• High Court, Manchester District Registry: HHJ Holman, sitting as a High Court judge, dismissed the personal-injury claim after a liability-only trial on 9 January 2009. The lower judgment’s citation is not stated in the judgment.