Participating in a sport can by its nature mean that there is an acceptance of injury if one is so unfortunate to be injured. Different sports can vary in the risks involved, for instance, an amateur jockey takes on greater risk than a golfer.
In contact sports, such as rugby, the risk is obvious but there are rules and if an injury occurs from collision with an opposing player, there can be no cause of action if the player that caused the injury or was instrumental to it, was playing within the rules. If the player that caused the injury was clearly in breach of the rules, then there could be a case. To establish such a case the plaintiff must show that the defendant owed a duty of care, that the defendant did not fulfil that duty of care, that the defendant was accordingly negligent and that such negligence created the accident that caused the injury to the plaintiff player.
An action can be commenced in circumstances where external conditions may have caused the accident. For instance, if after severe weather conditions, a playing pitch was borderline playable. If the club allowed play and injuries followed, the club could be sued for allowing a game to be played on dangerous ground conditions. However, some clubs are unincorporated associations and under the law they cannot be sued if the plaintiff is a member of that club.
Injuries that can occur in sporting fixtures apply also to spectators. Safe and proper seating or barriers which can act to protect players must be not only safe but fit for purpose. In a case this year these issues were tested. In the case of Carroll v. Phelan and Others [2023] IECA 91 the plaintiff was assisting in a junior camogie training session at Roscrea GAA Club. A training session was in progress when the plaintiff arrived. She was wearing studded boots and attempted to step over rows of seats in the spectator area but one of her feet caught the surface of the seating causing her to fall forward. She suffered facial injuries. Subsequently she issued personal injuries proceedings in the High Court.
The court heard expert witnesses regarding the seating and the material they were made of. It transpired in evidence that the club had not done a risk assessment on the seating when they were constructed.
The defendant club said it was common case that people did step over the seating and that the plaintiff had contributed to her accident by not taking due care in stepping over seating and opting not to use a safer route to where she was going. The High Court judge held that it was commonplace for people to step over such seating and it was therefore reasonably foreseeable that people’s feet would be in contact with the surface. The judge accepted that the plaintiff had contributed to her accident and apportioned liability on a 50/50 basis. Accordingly, the plaintiff was awarded €47,000.
The defendants appealed the decision to the Court of Appeal on the question of liability.
The defendants cited a High Court decision of Byrne and Lavin v. Dublin Airport Authority [2016] IECA 261, where it was stated that the mere fact of an accident at the premises did not render the owner of such premises liable.
In considering the facts of the case, the Court of Appeal distinguished the case before it with the cited cases. In those cases, there was no identifiable danger which caused the injuries.
In giving its judgment, the Court of Appeal upheld the finding of the High Court noting that while the plaintiff’s actions did contribute to the injury she incurred, it did not absolve the defendant club from their negligence, accordingly the award of €47,000 was confirmed and the appeal dismissed.
While the plaintiff did win her case, it was a pyrrhic victory as she took the case in the High Court. The award amounting to €47,000 was outside the jurisdiction of the High Court which starts at €75,000 which meant the costs to the plaintiff would be awarded on the Circuit Court scale. Therefore, out of the award made, the plaintiff would possibly have to make up the shortfall in legal fees.