Wimbledon’s Weary Wednesday and Potential Liability? by @PhilipVasquez #Wimbledon

By Philip Vasquez, StretLaw Associate

Britain’s Sporting Events Putting the Great into Great Britain

So, it’s a great summer for British sporting events isn’t it? We’ve had the last ever Cricket ICC Champions Trophy being hosted in England and Wales over the month of June, where I was fortunate enough to watch a few games down at Cardiff’s Swalec stadium. We’ve also been graced with the Lions tour of Australia and soon we will have the return of the Ashes later on this summer. Most recently however, we have been graced with the presence of the grand slam event of Wimbledon.

Ace!

Now, I am not a big tennis fan myself but I love watching it when I can. I just love watching sports in general as I love the exhilarating unpredictability and how nature and the weather can play a big part in sporting outcomes. Most recently people may recall the ICC Champion’s Trophy Final between India and England being put down to a Twenty20 match instead of a 50 over One Day International (ODI) because of the rain. India only won by 5 runs and it was great to watch despite the final showcasing an almost completely different type of cricket experienced throughout the tournament, for it showed a game of agile IPL style Twenty20 cricket as opposed to a strategic game of dot balls and power play where the most runs (usually) come in the first 15 and possibly last 10 overs of the game. Personally, I found it pretty ironic that the advent of one of the last ODI tournaments went away with a Twenty20 match, for the world of cricket is moving away from its test matches and ODIs, emphasised by the abolishment of the Champions Trophy, and towards Twenty20 cricket. Anyway, I digress!

Weary Wednesday

However unfortunate the event, Wimbledon has also been plagued by its own slips (pun intended), allegedly resulting from the slippery conditions of the courts. I watched most of the games on ‘Wet Wimbledon Wednesday’ and, apart from seeing the world’s greatest players such as Nadal and Federer get knocked out, I saw the allegedly dangerous surface take its toll over a total of seven players in one day, including Tsonga and Sharapova. Maria Sharapova, The World #3 according to the WTA, was heard in her game against M. Larcher de Brito telling the umpire that the court was ‘dangerous’ to play on, although this has been denied by Wimbledon. The slips and the surface have taken a total of 7 injuries, resulting in the highest ever amount of recorded injuries at the tournament in a single day. Could the players sue the organisers of Wimbledon for negligence of the court surface, resulting in injury, loss of amenities and projected loss of earnings?

The likelihood is that they probably wouldn’t be able to. But lets skim through the reasoning…

Watson

Injuries commonly occur during sport and the mere occurrence of an injury doesn’t automatically mean that a sports participant can successfully sue someone for damages. It has been a few years since I last touched Tort law, but I’ll do my best from memory. I only remember one sports tort case and that was the Watson boxing case:

Watson, now severely disabled, successfully sued the professional sport’s governing body, the British Boxing Board of Control, for a breach of their duty of care

What distinguishes sports liability from ordinary civil liability is the fact that sport participants voluntarily agree to purposive risk-taking for the sake of the sport or activity in question. Therefore, if the usual negligence principle of civil liability were to apply, then every rugby scrum or ruck would probably result in a class of claims!

Scrum

For those who may not know, the general rule of negligence in English law is dictated, mainly, by the case of Donoghue v Stevenson. This seminal case on civil liability and social responsibility is mostly renowned for being the snail in a bottle case. The facts of the case involved the claimant having a ginger beer and finding a snail in their bottle. The case resulted in the construction of the ‘neighbour’ principle and modern negligence whereby, generally speaking, one would be liable for another’s loss, even for one’s own unintentional wrongdoings, if is reasonably foreseeable that someone would be affected by such wrongdoing. What would be seen as wrongdoing is dictated by a potential duty or general standard of care. What a duty or standard of care may be, may be dictated by agreed terms or by speculating on what an average, reasonable person (erstwhile referred to as the ordinary person on the Clapham omnibus) would do, or not do, under the same circumstances. That is pretty much general liability in a nutshell (sort of).

Maccy Dee’s Cheeseburger

In sports therefore, a duty of care of a sports association, club, organiser and even other players is likely to be ‘higher’ and more difficult to satisfy than ordinary civil liability, as what would be ‘reasonably foreseeable’ in the circumstances of the sport may see that certain injuries are foreseeable in the sports arena, where they would not commonly be seen in… lets say a high street (unless you consider getting elbowed in the head when going for a header or a kick in the ribs as ‘reasonable’ when you’re popping down the shops to get your free Maccy Dee’s cheeseburger 🙂 ).

However, could poor surface conditions on a tennis court be reasonably foreseeable in a tennis match? Possibly and probably, especially on grass pitches in England… they’re likely to be slippery aren’t they? According to the court staff, the surfaces at this year’s Wimbledon have been the same if not drier than last year’s conditions.

The standards of the court can be read here. Furthermore, as the risk of some injuries in sport is to some extent highly unpredictable, it is reasonable and probable that the organisers of Wimbledon have an allocation of risk by contract and/or waivers for liability over tournament participants, with participants own insurance likely to cover such injuries.

Occupiers Liability

The next avenue by which Tennis players would be unlikely to have grounds for negligence against Wimbledon would be by considering Occupiers Liability (statutory). Occupiers Liability generally speaking places a duty on a person in control of land, to protect from harm all those who enter onto the land premises. More specifically, the degree of care required is what is reasonable ‘in all the circumstances of the case’. Therefore, the slippery surface of a tennis court is something which may be reasonably foreseeable in the case (especially given that not all courts are covered and it’s in England!).

Scotch Egg

Just to skim some of the case law which may be said to be somewhat analogous to the facts of the present slippery Wimbledon environment, one would be able to see how a slippery surface of a tennis court would be likely to be an expected aspect of the premises and something which players conscientiously volunteer to possibly encounter. In the case of Simms v Leigh Rugby Club the court held that the statutory duty of care did not require an occupier of a rugby field to eliminate the dangers in playing on a field that met the usual standards. It also held that a rugby player is deemed to accept those dangers for the purposes of the act of rugby. In Scotland, an indoor tennis case of Connelly v Whitbread PLC [2012] CSIH 51 involved surface conditions and footwear where a claimant allegedly suffered injury and loss. The inner house of the Court of Session (highest court in Scotland) held that the claimant had failed to prove that he had sustained loss, injury and damage through the tennis premise’s fault and negligence et separatism (a fancy way for saying ‘and separately’) breach of statutory duty. Furthermore, it was held that the sheriff (the top Scotch Egg, i.e. one of the thirty or so highest judges of the Scottish courts) could not properly hold that the tennis premises knew or ought to have known that there was a real risk of foreseeable injury to a tennis player wearing the incorrect type of tennis shoe on that particular (carpeted) surface, and there was not really any evidence to support such a conclusion.

Saga (not that Proton car)

Although the scots law case does not seem to apply as well to the present facts of the Wimbledon injury saga, one may be able to infer from the general drive and feel of the general principles of negligence regarding playing surfaces and sports participation, that tennis players kind of know what they are getting themselves in for when they signed up for the tournament…and a slippery court is kind of expected. If not, players would claim their money of the slippery surfaces of the many cup finals which were initially witnessed at the new Wembley once it was re-built.

That’s it, I’ve had enough…

No one likes to see players have to retire a game through injury, so why can they not just cover most of the courts to allow play to continue during the rain? I mean, it’s the British summer, surely they were expecting the rain? Such injuries can be avoided.

Paddy Power

However, leaving mother-nature do its work over sporting events holds the vulnerability of even the best of athletes and provides room for unpredictability and surprise in sports. I mean, Sharapova, Nadal and Federer (albeit the latter 2 not out through injury) all out in the same day? It provides great platforms for upcomers to climb the ranks. It also provides a great platform for great betting odds (Editor: ULS do not condone gambling 😉 ). On that note, I think Paddy Power before Wimbledon started on Monday were offering a refund to all Men’s singles bets if Murray won Wimbledon! Now that most of Murray’s main anticipated competitors out of the picture, it would be great to see that happen! Sorry Paddy…

Ace No.2!

But anyway, unfortunately for the players who got injured due to the court surface conditions, I doubt any of them would be able to make any type of claim. It would just be unheard of. Though, that said, with the single’s prize money at £1,600,000 for both men and women, claiming a slice of that as compensation for loss of potential earnings would be Ace!

© Philip Vasquez, 2013

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