For a footballer to sue for ‘negligence’ is like a climber suing a mountain
The case of Ben Collett, the footballer awarded £4.5 million for a tackle that ended his career, bodes ill for the game, says Rod Liddle. Blame the zeitgeist, not the judge If you went rock-climbing in the Andes and, halfway up a vertical cliff face, the surface beneath your feet crumbled away and you slipped and fell — condors and local Indian tribesmen laughing in the background, air whistling past your ears and then bang, bang, bang as you clatter into the ground, sustaining disfiguring but not fatal injuries — well, would you sue the mountain for negligence? Get your lawyers on to it double quick, shove in a claim for a million quid or so? Press conference on the steps of the court with you in your wheelchair: ‘It is time that mountains understood that they have a duty of care under the law. Let this be a lesson.’ The former professional footballer Ben Collett, who almost played for Manchester United but didn’t quite, has just been awarded what will be, with pension rights, £4.5 million in compensation for a tackle which ended his career. Ben was 18 when he made his debut for Manchester United reserves in a game against Middlesbrough reserves and was the subject of a ‘negligent’ tackle by Boro’s Gary Smith. Now, my definition of a negligent tackle has always been one which leaves the opposing player in possession of all his limbs, and also the ball. This is the first time I have heard the word used to mean almost the opposite: that Mr Smith, as he approached to make the tackle, may have temporarily forgotten his legal duty of care towards Mr Collett, had he ever been aware of it in the first place. Nobody argued that the ensuing tackle was malicious, premeditated or any of the sort of stuff you see every week on Match of the Day. Just negligent — i.e., a bit on the reckless side, maybe an error of judgment on the part of Gary Smith.
Ben Collett sustained a double fracture of his leg and will never play again, hence his claim and the humungous award from Justice Swift in the High Court. Many people have complained about the size of the payout, which was based upon the probability that Collett would go on to become a regular Premiership player pulling in a predictably obscene 13 grand per week, a suggestion supported (and why would they not support it?) by both his former team-mates and his manager, Sir Alex Ferguson. Well, maybe. But I have less of a problem with the size of the award than the decision to make the award — and maybe the decision to claim in the first place. The legal world may not have recognised this, but I think Justice Swift may have set a precedent, the repercussions of which may be very grim indeed.
A few years ago another top-ranking footballer, Darren Pitcher, lost his claim of negligence against Huddersfield Town Football Club, one of whose players had committed a ‘bad’ tackle upon him, effectively finishing his career at a high level. The tackle in question was late, and it was high — but in this particular case, Justice Hallett ruled that, while it was negligent, it was the kind of thing you see every week; the worst one might say was that it had been an ‘error of judgment’.
Everyone seemed to be agreed that Gary Smith’s tackle was nothing more than an error of judgment, too. I would defy any lawyer or judge to distinguish between an error of judgment and negligence in the mind of a professional footballer. In the past, compensation has been paid out only when players deliberately set out to maim their opponents (and sometimes not even then); it is understood that a deliberate attempt to injure is beyond the pale. But where Justice Hallett got it right and Justice Swift got it wrong was that tackles of the kind made by Gary Smith happen every week, one hundred times over — and you can call it negligence or an error of judgment but, as some insurance firms have already stated, the floodgates are now open. Clubs might claim against their opponents when a player is put out of the game for a few weeks; smaller clubs may find they can no longer afford their insurance premiums.
I am not so sure that Justice Swift is to blame — it is rather more the zeitgeist, the terrible wish on behalf of society to expunge all possible risk from our lives. To legislate against risk, even when you are doing something risky. A short while ago FIFA decided to work out a system of compensation for clubs whose players were injured while on international duty — such a thing, ten or 15 years ago, would have been unthinkable. Newcastle United, you may remember, whined long and hard for compensation when their star striker, Michael Owen, sustained a serious injury while playing for England. To many outside observers, it seemed that Owen would rather hack off his own leg than play for the Geordies — a club he did not wish to join and from which he has tried desperately to escape — but still, the FA coughed up.
So in the wake of this, and the Collett award, either the game will have to change beyond imagination, to the extent that it becomes effectively a non-contact sport, or clubs and players will become uninsurable. Already local football authorities, the people who run the little leagues, are warning about the need to take out comprehensive insurance: I wonder how many park sides that will put out of business. One bunch of personal injury vultures, a legal firm specialising in sports injuries, are busy hauling in the claims. Their website states: ‘All players have a legal duty to take care for (sic) the safety of opponents. So if your football injury was caused by the stupidity of an opponent, don’t let anyone tell you it’s all part of the game, mate.’ This firm claims to have sucked up (sorry, ‘recovered’) two million quid in claims recently; 100 per cent, no win no fee. Come on, sue that mountain.
The common-sense approach was surely recognised by Justice Hallett; football games are full of accident, poor decision-making, errors committed in the heat of a moment, awkwardness and bad timing. Players who take to the field should be mentally prepared for the consequences of these human frailties. That, at least, was the mindset six or seven years ago when Darren Pitcher lodged his claim. But not any more.
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