Can you claim compensation from injuries obtained during sporting activities?
The common law principle of volenti was recently examined in Czernuszka v King [2023] EWHC 380 (KB). This principle regulates the ability of those who have been injured whilst willingly taking part in sporting events to claim compensation.
In practice, this principle means that those who willingly partake in sporting activities, voluntarily accept the risks involved in that sport. Therefore, those who suffer injuries as a result, cannot usually claim personal injury compensation.
However, in the case of Czernuszka v King, this principle did not apply.
The Facts of the Case
Czernuszka and King played developmental level women’s rugby and were playing a game against one another. Czernuszka was a considerably smaller player in height and weight than King. During the game, Czernuszka was playing ‘scrum-half at the back of a ruck’. She had bent down to pick the ball up from the ground. King then used her bodyweight to push forward and down onto Czernuszka. Due to the sheer pressure of King, Czernuszka was forced down onto the ground whilst she was still bent forward. As a result, she suffered a fractured spine which left her paraplegic. The full rugby game was recorded on video. Therefore, the court was able to review the full match, and in particular, the tackle which left Czernuszka with life changing injuries.
Findings in Fact
Czernuszka’s injuries were considered in light of the fact it was a developmental league game, hence, the players were not professional players or experts in the sport. Prior to the game in question, it was found that King’s team had previously played in an aggressive and intimidating manner. In a previous game between the two sides, King had been winded following a tackle with Czernuszka. Therefore, it was established that King wanted revenge on her opponent. It was found that King tackled Czernuszka without any consideration for her well-being or safety. The tackle was performed out with the realms recognised in the sport, in a dangerous way which was likely to cause injury. It is important to note that King also made multiple verbal threats directed at Czernuszka throughout the match. These included, “I’m going to break her” and “smash the number seven”.
The Legal Test
The legal test applied considered if King had failed to exercise the degree of care which was appropriate in the circumstances of the game. Condon v Basi [1985] 1 WLR 866 set out this test. It is important to note that if the tackle performed was found to be simply illegal or dangerous, this would not be enough to find the King liable. An illegal or dangerous tackle would only be taken into consideration in deciding if King had failed to exercise the degree of care considered necessary.
Degree of Care
In examining what degree of care was deemed necessary, the Court considered the following criteria:
- The size of King.
- The level of experience King had.
- The level of game.
- The number of times Czernuszka had played the game.
- When the tackle occurred, Czernuszka was not in possession of the ball.
- Czernuszka was in a vulnerable position.
- King did not compete for the ball, instead she went straight for Czernuszka.
Discussion
It was found that King executed a tackle which was “wholly unconventional, dangerous and committed without concern” for Czernuszka’s safety and was liable for Czernuszka’s injuries. Between the two rugby experts who provided evidence in this case, they had only seen this tackle being used twice.
This is an important ruling which highlights an exception to the legal principle of volenti and shows that the conduct of the individual involved is crucial in establishing liability.
If you have been injured as a result of participating in a sporting activity and wish to pursue a claim, we recommend you speak to a specialist in this legal area. Our expert team would be delighted to assist you and can be contacted on 0333 060 3935.
