Duty of care – Findings of fact – Football

Andrew Kerr v GED Willis: CA (Civ Div) (Lord Neuberger (master of the rolls), Mr Justice Smith, Lord Justice Toulson): 4 November 2009

The appellant (K) appealed against the dismissal of his personal injury claim against the respondent (W).

K had suffered a catastrophic spinal injury during an indoor friendly football match. K alleged that W had tackled him from behind after he had played the ball, which had propelled him forward into the plywood wall at the end of the pitch. K stated that the tackle amounted to a foul and that therefore W had breached his duty of care. In the alternative, K pleaded that W had barged or pushed him from behind, which was dangerous so close to the wall. W denied liability on the basis that his movements were within the rules of the game and that it was a pure accident. Several eyewitnesses gave evidence. None of the witnesses supported K’s claim that he had kicked the ball away before he was tackled and the judge rejected the evidence that K had already played the ball. The boundary lines of the pitch were only about one metre from the wall. K stated that the incident happened fairly close to the wall, whereas W alleged that it happened some distance from the wall. Both limbs of K’s argument were rejected on the basis that the tackle was not late, K had not kicked the ball away and he had not been barged from behind.

K submitted that (1) the judge was wrong to have rejected the evidence that K had already played the ball and that he must have misunderstood the evidence, as K only meant that he had gone to play the ball but did not know if it had moved; (2) the judge was wrong to allow the fact that he had rejected K’s evidence on whether he had played the ball to undermine the rest of K’s evidence.

Held: (1) There was some force in K’s argument. However, the evidence of the witnesses was not merely that the ball did not move but that K and W had reached the ball at the same time and therefore it was not a late tackle. The judge was entitled to reject the way K had put the case.

(2) The judge was right to look at the supporting evidence. People in K’s position might be prone to an honest but incorrect reconstruction of events. The judge found no support for K’s claim that he was pushed from behind. The way K was projected was consistent with a push but it was also consistent with a trip or loss of balance. K had not demonstrated that the judge had erred. The judge was entitled to make the findings of fact that he did and was entitled to dismiss the claim.

Appeal dismissed.

Ian Little (instructed by Thomsons (Manchester)) for the appellant; Tim Horlock (instructed by DWF (Leeds)) for the respondent.