Fulham Football Club v Jordan Levi Jones

In claims arising from injuries in professional sport, breach of the rules of the game does not itself establish actionable negligence. The court must assess negligence in all the circumstances, recognising the speed, physicality and inherent risks of the sport. Errors of judgment and momentary lapses will not ordinarily suffice, but conduct exceeding the accepted risks may do so. A referee’s decision is relevant evidence, although it is not determinative. The court must engage with that decision when assessing civil liability. A first-instance judge must also give adequate reasons when choosing between materially conflicting expert evidence. An appellate court may set aside a judgment affected by legal misdirection, inadequate reasoning or failure to consider relevant evidence, and order a new trial.

Fulham Football Club appealed against a decision of Recorder Craven, who dismissed Mr Jordan Levi Jones’s assault claim but found Fulham vicariously liable for Mr Harris’s negligent tackle during an under-18 football match. The recorder concluded that the tackle amounted to serious foul play and actionable negligence, notwithstanding the referee’s failure to award a foul or card.

The appeal raised four grounds: misdirection as to the relationship between the Laws of the Game and civil negligence; inadequate reasons for rejecting Fulham’s expert evidence; failure to account for the fast-moving context and playing culture of professional football; and failure to consider contemporaneous evidence, particularly the referee’s decision. The central issue was whether the recorder’s reasoning was legally sustainable.

1. Appeal allowed. The recorder’s judgment was set aside. Fulham’s request for judgment in its favour was refused, and the matter required a new trial.
2. The court rejected the submission that the authorities invariably require a mechanistic two-stage test beginning with breach of the Laws of the Game. Nevertheless, the recorder materially misdirected himself by treating certain forms of serious foul play as very likely to amount to negligence. The Laws of the Game are not drafted to determine civil liability. A breach, including conduct attracting a red card, is not without more actionable negligence. The civil standard is materially higher.
3. The assessment had to consider the circumstances of professional football, including its speed, physical contact, competitiveness and inherent risks. The recorder’s statement that the heat-of-the-moment context did not matter was legally wrong. His formulation that a player could be liable where he could not be sure what he might contact or with what force imposed an excessively low standard for reckless or quasi-reckless conduct.
4. The recorder also failed to give adequate reasons for rejecting Mr Cumming’s expert evidence. Where materially conflicting expert evidence involves reasoned analysis, the judge must explain why one case is preferred over the other. It was legally insufficient simply to form a contrary view of the video evidence and reject the expert’s opinion without analysing it as part of the overall question of actionable negligence.
5. The referee’s failure to award a foul was an important evidential and policy consideration. It was not determinative, but the court had to engage with it when deciding whether actionable negligence occurred. The absence of reactions from spectators did not establish error because the expert evidence indicated that such absence was normal. The lack of reaction from players was immaterial in light of the error concerning the referee.

• High Court (Queen’s Bench Division): On appeal from Recorder Craven’s judgment dated 13 October 2021. All four grounds succeeded. The judgment was set aside and a new trial was ordered.